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The office and authority of a justice of peace

Date: 1774 | Identifier: KFN7930 .D38 1774
The office and authority of a justice of peace. And also, the duty of sheriffs, coroners, constables, church-wardens, overseers of roads, and other officers. Together with precedents of warrants, judgments, executions, and other legal process ... To which is added, an appendix ... Collected for the common and statute laws of England, and the acts of assembly of this province, and adapted to our constitution and practice. By J. Davis, one of his Majesty's justices of the peace for the county of Craven. Newbern : Printed by James Davis, 1774. 404, [3] p. 21 cm. Evans 13236. McMurtrie 70. Thornton 3179. Signatures: title, and 1 leaf not signed, B-Dp4s, E not signed, F-Zp4s, Aa-Zzp4s, Aaa-Fffp4s. Imperfect; the text for p. 25-32 [sig. E] numbered 27, 26, 27, 26, 31, 30, 31, 30; p. 27, 26, and 31, 30 duplicated, and the other pages of text wanting. Personal copy of Stephen Cabarrus. Includes index. more...
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THE
OFFICE and AUTHORITY
OF A
JUSTICE of PEACE

AND ALSO,
The Duty of SHERIFFS, CORONERS, CON-
STABLES, CHURCHWARDENS, OVERSEERS
of ROADS, and other Officers.
TOGETHER WITH
PRECEDENTS of WARRANTS, JUDGMENTS, EXECU-
TIONS, and other legal PROCESS, issuable by Mag-
istrates within their several Jurisdictions, in Cases
Civil and Criminal, with the Method of Judicial
Proceedings before Justices of the Peace out of Sessi-
ons. Also some Directions for their Conduct within
their County Courts.
To which is added,
An APPENDIX.
Containing many useful PRECEDENTS, and Directions
for the Execution of them.
Collected from the Common and Statute Laws of
England, and the Acts of Assembly of this Province,
and adapted to our Constitution and Practice.

By J. DAVIS, Esq; one of his Majesty's Justices of the Peace for the County of Craven.

NEWBERN:Printed by JAMES DAVIS. M,DCC,LXXIV.







THE
PREFACE.

IN the following Sheets I have endeavoured to lay before the Public, the Office and Authority of a Justice of the Peace, with the Duty of Sheriffs, Constables, and other Officers of this Province.

NO Publication of this Sort ever yet appearing in this Country; and, in some Degree, to rescue it from the great Disadvantage it laboured under, by many Gentlemen in the Commission of the Peace, and other Officers, not having an Opportunity of purchasing proper Books to guide them thro’ their several Offices; have been the chief Motives that led me to this Attempt.

WHEN I inform the candid Reader, that I have undertaken this great Task without either Time or Abilities to perform it; and that the little Leisure which has been employed therein has been merely stolen from my other necessary Occupations of Life, he will not expect a finished Piece, but receive it only as a Road cleared for better Performances. Typographical, as well as Orthographical Errors, there are no Doubt many in it; but I hope nothing material will be found, so as to alter the Substance of any particular Matter treated of.

IN the Prosecution of this Work, I have, under each Head, collected all the Common and Statute Laws of





England, with the Laws of this Province, that I thought necessary to my Purpose, or that could conveniently be inserted in so small a Work. For which Purpose, I have had Recourse to all the Books on the Subject I could procure, particularly, the Office of a Justice published some Years ago in Virginia by Mr. Webb; a Book in universal Esteem there, and much adapted to the Practice of this Country. From this Book I have made large Collections, tho’ not without examining most of his Quotations; the Law being the same, it is immaterial in whose Words it is collected, if done faithfully.

I have also, under each Head that required it, inserted Forms of Warrants, and other legal Process, necessary to be issued by Justices of the Peace out of Sessions; and have also, under the Title Sessions, given some necessary Directions to Justices within their Courts of Pleas and Quarter Sessions; and to make the Work still more complete, I have, at the End, by Way of Appendix, added many useful Precedents, Directions to Clerks of Courts, Oaths of Jurors, Witnesses, &c.

THE above is the History of the following Sheets; I have exerted my best Endeavours to make them useful, and here present them to the Public, in Hopes they will meet a favourable Reception.





ACCESSARY.

ACCESSARY is he that is not the chief Actor, but concerned in the Felony, by Commandment, Aid, or Receipt, and absent at the Time of the Felony committed; for if he were present, he is a Principal.

[note]

There are no Accessaries only in Felony; for in the highest Offence, which is high Treason, the Consenters, Abettors, Aiders, and knowing Receivers and Comfortors of Traytors, are all Principals. 1 Hale’s Hist. 613.

[note]

So in the lowest Offences, as Petit Larency and Trespass, there are no Accessaries; but all are Principals.

Accessaries are two-fold; before, and after the Fact.

[note]

1. An Accessary before the Fact, is he that commandeth, counselleth, or procureth, another to do Felony, and is not there present when the other doth it; for if he be present, he is also a Principal. Dalt. 394.

He that counsels or commands any evil Thing, shall be judged accessary to all that follows of this evil Act, though not of another distinct Thing; as if the Command is to rob in the Highway, and instead thereof, the Person is robbed in his House; or to rob him one Day, and it is done at another Time; or to poison a Man, and he is stabb'd: In these and the like Cases, he is accessary before the Fact. So, if a Felony of another Nature than what was advised, proceeds from the abetting, or Encouragement given by any ill Man, he is likewise accessary to it; as if he advises one Man to rob another, and he kills him, making Resistance: In this Case the Abettor is accessary to the Murder, because





his Advice was to do an evil Act, which makes him accessary to all the Consequences of it. Nels. 3. Dalt. 354.

But when the Felony commanded is executed upon another Person, or where there is a Variance in the Nature of the Offence, he that gave the Command is not accessary; as if A. advises B. to poison C. who knowing thereof, delivers it to D. who eateth, and dieth; this is Murder, but A. is not accessary to it. H. P. C. 217.

So if I command a Man to rob another in the Highway, and he commits Burglary; or if I command one to apprehend another, and instead thereof he robs him; in such Cases I am not accessary: For there must be an evil Purpose, continuing till the Act commanded be compleated, to make a Man accessary before the Fact. Lamb. 285.

2. An Accessary after the Fact, is he that receiveth, favoureth, aideth, assisteth, or comforteth, any Man that has done Murder, or Felony, to his Knowledge.

[note]

Buyers and Receivers of stolen Goods, knowing the same to be stolen, are Accessaries after the Fact.

If Goods are stolen, and the Owner hath complained to a Justice of Peace; or if the Felon be taken upon Hue and Cry, or otherwise, by Virtue of a Justice's Warrant, and then the Owner takes his Goods, compounds with the Felon, or consents to his Escape, this makes him accessary after the Fact, because he once prosecuted the Offender as a Criminal: But if, in Pursuit, he retaketh his Goods, and suffers the Felon to escape, before any Complaint made to a Justice, &c. this is a Misdemeanor, for which he may be indicted and fined; but it does not make him an Accessary, because from the Beginning he has Liberty to proceed against the Offender, either by civil or criminal Process.

A Servant relieving his Master, or assisting him to escape, knowing him to be a Felon, is an Accessary after the Fact: For he is bound to accuse him, or to depart his Service.

So is a Master relieving his Servant.

And a Husband receiving his Wife, knowing her to have done a Felony: But not for a Wife receiving her Husband. Nels. 5.

A Man is not an Accessary after the Fact, unless it be Felony at very Time when he becomes Accessary;





and therefore the Receiver of one who gave a mortal Wound to another, before the Death of the Party struck, is not accessary to the Murder: For it could not be Felony in the Receiver, because the Man was then living.

To receive a Man bailed for Felony, or to relieve a Felon in Prison; to send Letters or Messengers in his Favour; to teach him to read, or to advise him to make his Defence at the Trial, or that he endeavour to persuade the Witnesses not to appear against him, or doing charitable Offices for him, does not make an Accessary after the Fact.

Nor concealing a Felony which I know is intended to be done.

Nor suffering a Felon to escape, but giving him no Assistance. Nels. 6.

Accessaries before or after the Fact, shall, upon Conviction, be liable to the like corporal Pains and Penalties as the Principal is subject to, for the same Offence.

[note]

All Accessaries in Felony are bailable until the Principal be convicted, but not after; and it is in the Discretion of the Justices to consider the Circumstances of the Case, and the Fame and Character of the Party: For if he be not of good Fame, or do not tender very sufficient Sureties, who will be bound in a considerable Sum for his Appearance, he ought not to be bailed. Dalt.

[note]

Formerly by the Common Law, the Accessary could not be tried before the Principal was attainted; but by the 1 Ann. St. 2. c. 9. If the Principal be convicted, or stand mute, or peremptorily challenge above Twenty of the Jury, the Accessary may be tried and punished as if the Principal had been attained; and this, although the Principal be admitted to his Clergy, pardoned, or otherwise delivered before Attainder.

[note]

But in the Case of stolen Goods, if the Principal cannot be taken, the Buyer or Receiver may be prosecuted for a Misdemeanor, and punished by Fine and Imprisonment; or corporal Punishment, at the Discretion of the Court; which shall exempt the Offender from being punished as Accessary, when the Principal shall be taken, and convicted.

[note]

Also, by 29 Geo. 2. c. 30. The Buyers or Receivers of stolen Lead, Iron, Copper, Brass, Bell-Metal, or Solder, may be convicted, although the Principal hath not been attainted.





Indictment for an Accessary before the Fact.

THE Jurors for our Lord the King upon their Oath, present and say, That whereas — late of the Parish of — and County of — Planter, not having God before his Eyes, and being moved and seduced by the Instigation of the Devil, the — Day of — in the — Year of the Reign of our Sovereign Lord George the Third, by the Grace of God, of Great-Britain, France, and Ireland, King, Defender of the Faith, &c. that is to say, at — in the County aforesaid, with Force and Arms, feloniously, and of his Malice aforethought, did (here insert the Crime) And that one — late of the Parish of — and County of — not having God before his Eyes, but being moved and seduced by the Instigation of the Devil, before the Felony aforesaid by the aforesaid — done and committed, in Manner and Form aforesaid, that is to say, the — Day of — in the — Year of the Reign of our Sovereign Lord George the Third, of Great-Britain, France, and Ireland, King, Defender of the Faith, and so forth, the aforesaid — at the Parish of — and County of — aforesaid, to the Felony aforesaid, in Manner and Form aforesaid, to be done and committed, maliciously, feloniously, voluntarily, and of his forethought Malice, did incite, move, abet, counsel, and procure, against the Peace of our said Lord the now King, his Crown and Dignity.

[note]

If after the Fact, the Form may be thus:

And that — late of — in the County of — Planter, well knowing the said — to have done and committed the said Felony, in Manner and Form aforesaid, afterwards, to wit, on the — Day of — in the — Year of the Reign of — at — aforesaid, in the County aforesaid, with Force and Arms, him the said — did then and there feloniously, and of his forethought Malice, receive, aid, and comfort; against the Peace of our said Lord the now King, his Crown and Dignity.

ADDITION.

IN Law it signifies a Title given to a Man, over and above, his Christian and Surname, denoting his Degree, Mystery, Trade, and Place of Dwelling.

[note]



It ought to be inserted in every Warrant, or other criminal Process, that the Person of the Offender may be the more certainly known; and it is required by the Common Law, because it is Parcel of the Name.

[note]

By the Statute 1 H. 5. cap. 5. where Proces of Outlawry lieth, the Condition and Dwelling of the Defendant must be inserted, or else the Outlawry is void.

But Surplusage of Addition doth no hurt. If there is no proper Addition in an Indictment, for any Matter where Process of Outlawry lieth, such Indictment may be quashed. Cro. Eliz. 224.

[note]

This Addition must be as the Defendant then is:

1. Of Place; the Town, or Parish and County, whereof he or she is, or last was, must be set forth.

2. Of Degree or Estate, Mystery or Trade.

ADULTERY. See FORNICATION.

AFFRAY.

THIS is a Fighting between two, or more; but there must be a Stroke given, or offered, or Weapon drawn; otherwise ’tis not an Affray. H. P. C. 135.

[note]

It differs from an Assault, which is an Injury done to a particular Person; but an Affray is a common Wrong, for which the Offender may be indicted, fined, and imprisoned. Dalt. 35, 36.

’Tis to be considered, under this Head, what may be done,

1. By a Justice of Peace.

2. By a Constable.

3. By a private Person.

1. By a Justice.

If an Affray is in his Presence, he may lay Hands upon the Offenders, take away their Weapons, and commit them, till they find Sureties: And if they resist, he may command others to aid and assist him in apprehending the Offenders; if they fly, he may pursue them, though into another County, and may break open any House to take them. Dalt. 35.

[note]

If the Affray be not in his Presence, he may, upon Complaint, or without, if he sees Cause, issue his Warrant





for apprehending the Offenders, and cause them to find Sureties for the Peace; or, on Refusal, commit them to Gaol.

If any Person is dangerously hurt, he may, within a Year and a Day after the Hurting, commit the Offender; and in this Case, ’tis not Discretion to bail the Party, though he may do it by Law. Nels. 11.

He may, by his Office, require those who threaten, or strike, in his Presence, to find Sureties for their good Behaviour; and, upon Refusal, commit them.

If an Affray, or Assault, be made upon a Justice of Peace, or Constable, they may not only defend themselves, but also apprehend and commit the Offenders, till they find Surety for the Peace, and for their Appearance at the next Court: The Justice may presently cause them to be arrested, and carried before another Justice, who may send them to Gaol, if he see Cause: The Constable may put them in the Stocks, or otherwise secure them for the present, and after carry them before a Justice of the Peace. Dalt. 37.

2. by the Constable.

He may command the Affrayers to depart, and if they refuse, may apprehend them, without Warrant, if the Affray be in his View: If they resist, he may call others to his Assistance, and may justify the wounding in such Case; and if the Affray be great and dangerous, he may commit them until he can procure Help to carry them before a Justice: And if any Person is wounded, he may apprehend the Offender, and carry him before a Justice of Peace. Dalt. 37.

[note]

He may break open an House to take the Offenders, and may pursue them into another County; but then, when taken, he must bring them before a Justice of Peace of that County where taken.

If he is assaulted doing his Duty, or if the Affray be in his Presence, he may put the Offenders into the Stocks, or otherwise secure them, according to their Quality, till he can get Assistance to bring them before a Justice of Peace. Lamb. 133.

If he is hurt in the Affray, he may have an Action of Trespass.

If there is threatening to kill, or beat, or hurt; tho’ this is no Affray, yet he may apprehend the Persons, and carry them before a Justice: But when an Affray is over, he cannot apprehend any one, without a Warrant,





unless some Person is dangerously wounded. Nels. 10.

If he neglects his Duty in not endeavouring to suppress an Affray, it is presentable at the County Court, and he ought to be fined.

3. By a private Person.

Any Man may stay Affrayers, who are about to break the Peace, and deliver them to a Constable.

[note]

Likewise any Man may apprehend an Offender, who hath dangerously wounded another, and carry him before a Justice of Peace, or deliver him to a Constable. Dalt. 35.

If any Person is wounded, or hurt, in an Affray, he may prosecute the Offender; and it is in the Election of the Party injured, whether he will have Remedy by Action of Trespass, wherein he may sue for, and recover his Damages; or by Indictment, whereupon the Offender may be fined and imprisoned.

[note]

Upon Complaint made to a Justice of Peace, he may issue his Warrant to apprehend the Offenders; but if it be at the Suit of a particular Person, he ought to administer an Oath to the Party requiring such Warrant, viz.

[note]

THE Information which you shall give against E. F. of the Parish of — in the County of — Labourer, shall be the Truth, the whole Truth, and nothing but the Truth. So help you God.

[note]

A Warrant against an Affrayer.

— County, ss.

To all Constables, and other Officers, of the said County.

WHEREAS A. B. of the Parish of — in this County, Planter, hath this Day made Oath before me, C. D. Esq; one of his Majesty's Justices of the Peace of the said County, That on— the — Day of — at — in the Parish and County aforesaid, E. F. of the same Parish and County, Labourer, and other Persons unknown, being then and there unlawfully assembled, with Force and Arms, an Assault and Affray did make, and him the said A. B. did beat and wound, and other Enormities then and there did commit, contrary to the Peace of our Sovereign Lord the King: These are therefore, in his Majesty's Name, to command you to apprehend the said E.





F. and to bring him before me, or some other Justice of the Peace of this County, to be examined concerning the Premises wherewith he is charged. Herein fail not at your Peril. Given under my Hand, this — Day of — 1774.

[note]

If the Offender is taken upon this Warrant, he may be admitted to Bail, or committed to Gaol, at the Discretion of the Justice, and as the Circumstances of the Case may require.

[note]

Upon his being bailed, the Justice must cause him to enter into Recognizance, with good Sureties, for his Appearance at the next Court, to be held for the same County: The Number and Sufficiency of the Sureties, and the Sums in which they are to be bound, is discretionary in the Justice before whom the Recognizance is acknowledged; the Principal is to be bound in double the Sum the Sureties are bound in; and in ordinary Cases, ’tis usual to bind the Principal in 20 l. and two Sureties in 10 l. each; but these Sums may be enlarged, if the Justice see Cause; and if he is deceived in the Ability of the Sureties, he may compel the Party to find better Security; or, on Refusal, commit him.

[note]

A Recognizance.

— County, ss.

MEMORAND. On this — Day of — Anno Dom. — personally came before me, C. D. Esq; one of his Majesty's Justices of the Peace for the said County, E. F. of the Parish of — and County aforesaid, Labourer, and I. K. and L. M. both of the same Parish and County, Planters, and acknowledged that they do owe to our Sovereign Lord King George the Third, viz. the said E. F. — Pounds, and the said I. K. and L. M. each severally — Pounds, to be levied of their respective Goods and Chattels, Lands and Tenements, to the Use of our said Lord the King, his Heirs and Successors, if Default is made in Performance of the Condition here under-written.

[note]

THE Condition of this Recognizance is, That if the above bounden E. F. shall personally appear before his Majesty's Justices of the Peace, at the next Court to be held for the County of — on the aforesaid — Day of — to answer unto such Matters as shall be then and there objected against him,





by A. B. of the same County, Planter, concerning the assaulting, beating, and wounding, of the said A. B. by him the said E. F. and concerning some other Misdemeanors, tending to the Breach of the Peace; and that if he do not depart without Leave of the Court, then this Recognizance to be void; or else to remain in Force.

Acknowledged before me, C. D.

When this Recognizance is entered into, the Justice reads the Condition to the Parties bound, calling them by their Names, thus:

You acknowledge to owe to our Sovereign Lord the King, viz. You E. F. — Pounds, and you I. K. and L. M. — Pounds each; to be levied, &c.

After which the Justice subscribes his Name, but the Parties bound need not set their Names to it.

This Recognizance must be certified by the Justice to the same Court before whom the Offender is bound to appear, that he may be called, and thereupon further Proceedings had: If he appears, the Matter of the Complaint is to be examined, and Witnesses heard; and then, if the Court see Cause, they will direct the Attorney for the King to prefer an Indictment against the Offender, and may commit, or bail him, as the Case requires; or he may be bound to the good Behaviour, for such Time, and with such Sureties, and in such Sums, as the Court shall think fit to direct; or he may be discharged.

[note]

If the Defendant fail to appear, the Clerk is to record the Default, that the King may be intitled to the Forfeiture of the Recognizance.

But if the Offender refuses to be bound, or to give Security, when brought before the Justice, he may be committed to Gaol.

— County, ss.

To the Sheriff of — County; or, to the Keeper of the common Gaol of the said County.

[note]

THESE are, in his Majesty's Name, to command you to receive into your Gaol the Body of E. F. late of the Parish of — in this County, Labourer, taken by my Warrant, and brought before me, being charged upon Oath by A. B. of the same Parish and County, Planter, with assaulting, beating, and wounding, the said A. B.





in an Affray by the said E. F. and others, lately made; and that you safely keep him in your said Gaol and Custody, until he be thence discharged by due Course of Law. Given under my Hand and Seal, this — Day of — 1774.

If the Commitment is for an Affray, or Threatening, or Striking, in the Presence of the Justice, the Mittimus may be as follows, viz.

— County, ss.

To the Sheriff, &c.

I SEND you herewith the Bodies of E. F. of, &c. and N. O. of, &c. whom I require you, in his Majesty's Name, to receive into your Custody, being convicted, by my own View, of an Affray by them made in my Presence: And you are hereby commanded to keep them, and each of them, the said E. F. and N. O. safely in your Gaol, until they, or either of them respectively, shall procure two sufficient Persons to be bound with them, or either of them, separately, to the King's Majesty; that is to say, each of the Sureties in the Sum of — Pounds, and the said E. F. and N. O. each in — Pounds, to appear at the next Court to be held for the said County of — on the — to answer the Premises, and in the mean Time to be of the good Behaviour; or until they, or either of them, shall be otherwise discharged by due Course of Law. Given under my Hand and Seal, &c.

If an Offender is taken by the Constable, and brought before a Justice, upon Refusal of giving Security, the Mittimus may be in the like Form, only varying in the Manner and Cause of Commitment, which ought to be plainly expressed.

But where it is occasioned by some dangerous Wound or Hurt, so that it appears to the Justice that the Offender ought not to be bailed; in this Case, after expressing the Cause, he must command the Gaoler to keep the Party in Gaol and safe Custody, without Bail or Mainprize, until he shall be discharged by due Course of Law: But the Prisoner may exhibit his Petition to the next County Court, or to any of the Judges of the General Court; and if they see Cause, he may be admitted to Bail.





Indictment for an Affray.

THE Jurors for our Lord the King, upon their Oath, present, That A. B. of — in the County of — Planter, and C. D. of — in the said County, Planter, with Force and Arms, on the — Day of — in the — Year of the Reign of our Sovereign Lord George the Third, by the Grace of God, of Great-Britain, France, and Ireland, King, Defender of the Faith, and so forth, at — aforesaid, in the County aforesaid, being arrayed and unlawfully assembled together in a warlike Manner, did make an Affray, to the Terror and Disturbance of divers of the Subjects of our said Sovereign Lord the King, then and there being, and to the evil Example of all other the Subjects of our said Sovereign Lord the King, and against the Peace of our said Lord the King, his Crown and Dignity.

[note]APPEALS.

THE Signification of this Word, in Law, is different, according to the Nature of the Appeal; which is either,

[note]

1. In civil, orProceedings.
2. In criminal

1. An Appeal in civil Cases, is a Removal out of an Inferior to a Superior Court, for reversing any erroneous Judgment, or Decree, in Common Law, or in Chancery, in any Matter, real or personal.

[note]

2. An Appeal in criminal Cases signifies an Accusation, and is of three Sorts, to be brought either by Writ or Bill:

[note]

1. By the Heir Male, for the Death of his Ancestor.

2. By the Wife, for the Death of her Husband.

3. By the Appellants, for Wrongs done to themselves, as Robbery, Rape, and Mahem. Co. Lit. 287.

But these Appeals are not so commonly used as Indictments, because the Prosecution is not only more chargeable, but ’tis the most nice Suit in Law, for the Omission of any material Word will abate the Writ; and this varies from all other Proceedings, for a Fault in it can never be amended, and a Nonsuit in any Appeal for Felony is peremptory, because it is in Favour of Life. Nels. 26, 27.





By the ancient Saxon Laws, made in the Reigns of King Alfred, and his Grandson Athelston, the Punishment for killing was not by Blood, but by Fine; and the Offender was to make Compensation in Money to the Relations of the Person killed, according to his Quality: Which Mr. Selden has thus computed:

A Countryman killed, at£. 40 1 0
A Clergyman,300 0 0
A General, or Captain,600 0 0
A Bishop, or Alderman,1200 0 0
Archbishop, or Nobleman,2250 0 0
The King,4500 0 0

For a Woman with Child, the Value of her Head; and for the Child in her Womb, Half as much as for a living Child, according to the Quality of the Father.

A Welshman, if he had Land, and a Family, and paid Tribute, was valued at 6 l. if he had no Land, 3 l.

These Fines were only in Case of Manslaughter, where the Person was killed by Misfortune; but Murder was never excused by these Payments: That was always punished by Death, and so was Manslaughter likewise, where the Party was not able to pay the Valuation of him who was killed.

And so the Law continued a long Time afterwards, till by the Statute of Marlbridge, 53 Hen. 3. killing a Man by Misfortune, was adjudged Murder; but yet redeemable upon Payment of the Fine.

And from hence, it is probable, that Appeals of Death are derived to the Heir, or Wife, at this Day.

An Appeal is the Suit of the Party, as well as of the King; hence the King cannot pardon an Offender found guilty upon an Appeal, as he may upon an Indictment: For in that Case he can only pardon for himself, and not for the Party. 2. H. 155.

[note]

Appeals are allowed from the Inferior to the Superior Courts; from the Judgments of Justices on the Trial of Warrants, and from Trials on several Penal Statutes; which will be found under their several Heads.

[note]

APPRENTICES. See ORPHANS.

ARBITRATION. See AWARD.





ARMOUR.

JUSTICES of the Peace, upon their own View, or upon Complaint, may apprehend any Person who shall go or ride armed with unusual and offensive Weapons, in an Affray, or among any great Concourse of the People, or who shall appear, so armed, before the King's Justices sitting in Court, and may bind such Offender to the Peace, or good Behaviour; and if he refuses to be so bound, may commit him. Dalt. 37.

[note]

And any Justice of the Peace may command Weapons to be taken from a Prisoner brought before him.

Any Man may use Force and Arms in Defence of his Person, House, Goods, Family, &c. against Robbers, or those that shall assemble to do him any Violence; so he may, in endeavouring to suppress Riots: But here the safest Way is, to be armed in Assistance of the King's Officers. Nels. 55.

By an Act of Assembly of this Province, “to prevent killing Deer at unseasonable Times,” no Persons (except Masters of Slaves) are allowed to hunt with a Gun, on Penalty of forfeiting the same, and Ten Pounds, Proc. Money; unless such Person is possessed of a Freehold of One Hundred Acres of Land, or tends Ten Thousand Corn Hills, at five Feet Distance.

[note]

No Slave to hunt with a Gun, or any Weapon, on any Lands but his Master's, unless a white Man be in his Company; on Penalty of being whipped, and a Fine of Twenty Shillings, to be paid by the Owner of the Slave, to the Person on whose Lands he is found.

[note]

No Slave to carry a Gun, or hunt in the Woods, without a Certificate signed by the Chairman of the Court, for that Purpose; the Master or Mistress of such Slave having first given Security to the Court for the good Behaviour of such Slave; on which Bond any Person injured may maintain an Action for any Damages he may sustain: Recovery in any County Court.

[note]

But one Slave on a Plantation where Crop is tended, allowed to carry a Gun, and then only till Crop is housed. The Master, Mistress, or Overseer of any Slave, with whom shall be found any Gun, Sword, or other Weapon, contrary to Law, subject to a Penalty of Twenty Shillings, unless they make it appear such Slave carried the Gun, or other Weapon, contrary to his Knowledge.





Licence for a Slave to carry a Gun on a Plantation.

WHEREAS A. B. Owner of a certain Negro Slave called C. hath made Application to this Court for a Licence for the said Slave to carry a Gun on his Plantation, and hath given Bond and Security to the said Court, as the Law directs; These are to licence and permit the said Slave C. to carry a Gun, and hunt on his Master's Land and Plantation, till the Crop on the said Plantation is housed; the said Slave demeaning himself as the Law directs. Given under my Hand this — Day of — 1774.

[note]

D. E. Chairman.

ARRAIGNMENT.

ARRAIGNMENT is calling the Offender to the Bar of the Court, to answer the Matter charged on him. 2 H. H. 216.

[note]

The Prisoner, on his Arraignment, though under an Indictment of the highest Crime, must be brought to the Bar without Irons, and all Manner of Shackles or Bonds, unless there be Danger of Escape. 2 H. H. 219.

’Tis usual for the Prisoner to hold up his Hand at the Bar, on his Arraignment; but Mr. Hawkins says ’tis the same Thing if he answers to his Name, as ’tis only the Ceremony of making known the Person of the Offender to the Court. 2. Haw. 308.

For the particular Manner of Proceeding of the Clerk of the Crown, on Arraignment and Trial of Prisoners, see Sessions.

ARREST and IMPRISONMENT.

AN Arrest is, when a Man is taken and restrained from his Liberty, by Power or Colour of a lawful Warrant.

[note]

’Tis no Arrest for a Constable, having a Warrant, to command the Party to appear before a Justice of Peace; but he must lay hold on his Person. Dalt. 405.

The Person of a Baron, who is a Peer of Parliament, shall not be arrested in Debt, or Trespass.





By Warrant from a Justice of Peace, directed to the Sheriff, or Constable, or any sworn Officer, all Offenders against the Peace, or good Behaviour, or Penal Laws, and, generally, all Persons guilty of Crimes, or Misdemeanors, tending to the Breach of the Peace, may be arrested.

[note]

A Clergyman, but not in divine Service.

A Feme Covert, for Felony or Riot.

An Infant, if he cannot find Sureties for the Peace, but not for Breach of any Penal Law, unless he is therein charged.

In all criminal Cases, where any one is in Danger of Life, or Member, any private Man may arrest another, without Process or Warrant, and deliver him to the Sheriff or Constable, to be brought before a Justice of Peace: So likewise, where a Felony is committed, every Person present must endeavour to take the Offender, or he may be fined and committed himself; and in this Case of a Felony actually done, any suspected Person, though upon common Fame only, may be taken; and if he make Resistance, you may justify the beating of him: All these Offenders, when so taken, must be brought before the Constable or Sheriff; and if either of them is not found, then to a Justice, in Order to their Commitment. Dalt. 408.

[note]

An Arrest in the Night is lawful; for the Officer ought to arrest a Man when he is to be found, otherwise peradventure he shall never arrest him: And if the Officer do not arrest him, when he findeth him, and may arrest him, the Plaintiff shall have an Action upon the Case against such Sheriff, and may recover all his Loss in Damages. Cook. 9 Rep.

[note]

No Person shall be arrested in any civil Action, upon a Sunday, nor any Person attending his Duty at a Muster of the Militia, or at any Election of Burgesses, or Vestrymen, or any Person summoned to attend as a Witness, or Juror.

[note]

A sworn Officer need not shew his Warrant. Dalt. 405.

Officers of Justice, having lawful Warrant, and any Persons aiding them, may break open an House to apprehend a Felon.

[note]

Or one who hath dangerously wounded another.

Or where an Affray is in a House, and the Doors shut.





Or upon forcible Entry, and Detainer, either upon View of Justices, or upon an Inquisition taken before them.

So may the Sheriff, upon Outlawry in a personal Action.

And also upon a Warrant for the Peace, or Behaviour.

But the Officer ought first to acquaint the Persons in the House of the Cause, and require the Doors to be opened. Dalt. 264. Nels. 57.

When an Offender is arrested and brought before a Justice, if he hath Power, by Law, to bind him over, or to cause him to do any Thing, and he refuseth, he may commit him till he is conformable; but the Commitments must be to the common Gaol.

[note]

Where Imprisonment is directed by Law, and no Time limited when the Offender shall be committed, it must be presently: So where ’tis not limited how long he shall continue in Custody, there ’tis in the Discretion of the Court.

[note]

He must be kept in safe and close Custody; and if the Gaoler suffer him to go Abroad at any Time, tho’ he return to Prison, ’tis an Escape, and the Gaoler may be fined: For Imprisonment is for a Punishment of the Offender, as well as the safe keeping him to answer his Fault. Style.

[note]ASSAULT and BATTERY.

ASSAULT is the offering some Hurt to the Person, as by striking, &c. And Battery is the wrongful beating another.

[note]

The lifting up of the Hand in Anger against a Man, without striking, is an Assault in Law. Style. 124.

But it may be justifiable in many Cases: As,

1. Where Men have a natural Power over others; as Parents have over their Children, till they come of Age, to chastise them for Offences, without Breach of the Peace.

[note]

2. Where Men have a civil Power over others; as the Master hath over his Servant, the Schoolmaster over his Scholars, a Gaoler over his Prisoners, and any Man over his Kinsman, who is mad, or attempteth to do Mischief.





3. In Defence of one's Person, any Man may strike another, to defend his own Person from being wounded or beaten.

If one hurt another, by Misfortune or Negligence, and not wilfully; or if two agree to play, and one is hurt, ’tis no Breach of the Peace, because it was by Consent.

4. In Defence of the Person of another; I may justify the beating One who would do Mischief to my Wife, Child, Father, or Mother: For I am bound, by Law, to protect the One, and I owe Obedience to the Other.

So may the Wife justify the beating One who would beat or assault her Husband or Child.

A Master may justify the beating another, in Defence of his Servant; and likewise a Servant in Defence of his Master: But not of his Master's Father, Mother, &c. because he owes no Obedience to them.

Where the Life of any One is in Danger, by beating, or otherwise, any Person may endeavour to resist, and that by beating him who offered the Violence. Dalt. 206.

5. In Defence of my Goods; as if any One would, by Force, wrongfully take them away, whether I have a Property in them, or a bare Possession only, ’tis justifiable to resist: So ’tis, if another endeavour to put me out of Possession of Land, or House, or to turn a Highway, or to direct a Water Course, &c. But the Offender must not be wounded; and if he is killed, ’tis Felony.

Persons guilty of this Offence may be prosecuted by Indictment, and punished by Fine and Imprisonment; or by Action of Trespass, at common Law, for Recovery of Damages, at the Election of the Party grieved.

[note]

Upon Complaint made to a Justice of the Peace for an Assault, he may issue his Warrant against the Offender, and cause him to be brought before him, or any other Justice of the County; and if the Assault is proved on him, he may bind him over to the County Court, in the same Manner as for a Breach of the Peace.

[note]



Warrant for an Assault.

— County, ss.

To — Constable, or any other lawful Officer of the said County.

WHERE AS Complaint hath been made to me, A. B. Esq, one of his Majesty's Justices of the Peace for the said County, upon the Oath of C. D. of — in the said County, Planter, that E. F. of — aforesaid, Planter, did, on the — Day of — violently assault and beat him the said C. D. at — aforesaid, in the County aforesaid: These are therefore, in his Majesty's Name, to require and command you to apprehend the said E. F. and bring him before me, or any other Justice, to answer the said Complaint, and to be further dealt with according to Law. Given under my Hand and Seal, this — Day of — 1774.

[note]

Indictment for an Assault.

THE Jurors for our Lord the King, upon their Oath, present, that A. B. of — in the said County, Planter, on the — Day of — in the — Year of the Reign of our Sovereign Lord George the Third, of Great-Britain, France, and Ireland, King, Defender of the Faith, and so forth, at — aforesaid, in the County aforesaid, in and upon C. D. Planter, then and there being in the Peace of God and of our said Lord the King, with Force and Arms, an Assault did make, and him the said C. D. then and there did beat, wound, and evil intreat, and then and there to him other enormous Things did, to the great Damage and Hurt of him the said C. D. and to the evil Example of all others offending in the like Kind, and against the Peace of our said Lord the King, his Crown and Dignity.

[note]ASSEMBLY.

A GENERAL Assembly is a Meeting of the Governor, Council, and Members of Assembly, at a Day and Place appointed, by the Governor's Proclamation, for debating on Matters of Government, and making, amending, and repealing, the Laws of the Province.

[note]



It is a Court of the highest Authority, and is summoned, held, and prorogued, by Authority of the Governor, with the Advice and Consent of his Majesty's Council.

By the Laws of this Province for regulating Elections, the several Counties are to send Representatives to the Assembly, some of the most ancient, five Members, one or two send three Members, and the rest two each, and every Town that has sixty Families, to send one Member.

Writs of Election are granted by the Governor, and issued to the several Counties and Towns by the Secretary, or Clerk of the Crown; and on the Day of Election, the Sheriff of the County must repair to the Court-House, and by ten o'Clock in the Forenoon open the Poll, and make Proclamation. The Candidates are then to appoint Inspectors to see the Poll fairly and impartially taken, the Votes to be taken openly, and the Poll to be kept open till Sunset, unless the Candidates agree to close it sooner. The Sheriff is then to cast up the Number of Votes, and declare the Persons that have the greatest Number of Suffrages to be duly elected; and in Case of an Equality, he is to have the casting Vote, and to vote in no other Case.

[note][note]

Every Person possessed of an Estate real for his own Life, or the Life of another, or any Estate of greater Dignity, of a sufficient Number of Acres in the County, to enable him to be a Candidate, shall be deemed a Freeholder.

[note]

No Person to vote at an Election for a County, unless he hath been an Inhabitant six Months, and hath been possessed of fifty Acres of Land at least three Months before the Day of Election, and is of the full Age of twenty one Years. And no Person to sit or vote in the General Assembly, who hath not been possessed of one Hundred Acres of Land in the County one Year, hath been one Year an Inhabitant of the Province, and is of full Age.

[note]

Every Freeholder before he votes at an Election, if required, must take the following Oath, viz.

YOU shall swear, that you have been six Months an Inhabitant of this Province, and that you have been possessed of a Freehold of fifty Acres of Land for three Months past, in your own Right, in the County of — and





that such Land hath not been granted to you fraudulently on Purpose to qualify you to give your Vote; and that the Place of your Abode is in the County of — and that you have not voted in this Election. So help you God.

[note]

Whenever a Sheriff receives a Writ of Election, he is to advertise the same at the Court-House, and at every Church and Chapel in his County three several and successive Sundays before the Day of Election, if there be so long Time between his receiving the Writ and the Day of Election, and on the Day of Election the Freeholders are to repair to the Court-House and give their Votes; none to vote but Freeholders, and those not to vote twice, on Penalty of Five Pounds, to the Informer, recoverable in any Court of Record by Action of Debt.

[note]

On Suit brought against any Person for voting, not being a Freeholder, the Onus Probandi to lie on the Defendant.

No Person to be elected a Member for any County or Town, shall by himself or otherwise, before his Election, give or suffer to be given to any Voter, any Gift or Reward, in order to influence his Vote at the Election, on Penalty of being disabled to sit in the House during that Assembly.

[note]

If any Candidate, or other Person in his Behalf, shall desire a Copy of the Poll, the Sheriff shall within Ten Days after the Election give him a fair Copy, attested with his own Hand.

[note]

All Members of Assembly, before they sit in the House, are to take the Oaths of Government, and subscribe the Test.

[note]

If the Sheriff of any County refuses to take the Poll, or takes it in any other Manner than directed by Law, or refuses to give a Copy of the Poll within Ten Days, or shall not regularly and in Time return the Writ of Election, or shall make a false Return, he shall forfeit fifty Pounds, one half to the King, and the other half to him or them that sues for the same, recoverable in the Superior Courts, by Action of Debt.

[note]

Elections for Towns to be in the Manner prescribed by Law; but unfortunately for the Towns in this Province, there is no Law in Force for regulating their Elections, except the Town of Brunswick, where every Person to be qualified to be a Representative for it, must,





on the Day of Election, and for three Months before, be seized, in Fee-Simple, of a Brick, Stone, or framed House, Twenty Feet by Sixteen, with one or more Brick or Stone Chimneys. And every Voter at the Election must, at the Day of Election, and for Three Months before, be an Inhabitant or Tenant of a Stone or Brick House, of the aforesaid Dimensions, and in Case of no Tenant in such House, then the Owner to vote.

[note]

After the Election, in some convenient Time before the Day mentioned for the Return of the Writ, the Sheriff must return it to the Secretary's Office, with the Return endorsed on the Back of the Writ.

[note]

The Return may be in this Form:

BY Virtue of this Writ to me directed, I did make lawful Publication thereof, and afterwards, on the — Day of — in the — Year of the Reign of our Sovereign Lord George the Third, by the Grace of God, of Great-Britain, France, and Ireland, King, Defender of the Faith, &c. at the Court-House of the said County of — by the Assent of the Freeholders thereof then met, I have caused to be chosen Two Members of Assembly for the said County, to wit, A. B. and C. D. (or one Member for the Town of — as the Case may be) to act and do as by the said Writ is directed and required.

[note]

In Case of the Death or Disability of any Member of Assembly during the Session, or in the Vacation, the House, when met, usually address the Governor, in which they inform him of such Death or Disability, and desire him to order the Clerk of the Crown to issue a new Writ to such County or Town where the Death or Disability happens, for the Election of a new Member.

[note]

Every Member of his Majesty's Council, and of the General Assembly, shall have Seven Shillings and Six Pence per Day, for their Attendance at, and for every Day they are travelling to and from every Session of Assembly, with an Allowance for Ferriages, which Allowance is to be put on the Estimate of Public Debts, signed by the Clerk of the General Assembly, and countersigned by the Speaker of the House; which Certificate being signed by the Governor, and produced to the Public Treasurers, are to be by them paid out of the Public Monies in their Hands unappropriated.

[note]



If any Member of his Majesty's Council, or Member of Assembly, shall fail to give his Attendance as required by the Writ of Election, or on the Day of Prorogation, he shall be fined Ten Shillings for every Day's Absence during that Session, unless hindered by Disability or other Impediments, to be made appear to the House, recoverable by a Warrant from the President of the Council, or Speaker of the House of Assembly, as the Case may be, directed to the Messenger of such House; who is to levy the same by Distress and Sale of the Offenders Goods and Chattels, returnable to the General Assembly, to be applied to the Use of the Public.

[note]

Every Member of the General Assembly absenting himself without Leave, after the Meeting of the Assembly, to forfeit Forty Shillings a Day for every Day's Absence, to be recovered and applied as aforesaid, and may be sent for in Custody of the Sergeant at Arms, and liable to the further Censure of the House.

[note]

Every Person attending their Duty at Elections for Members of Assembly, exempt from Arrests during the Time of Election.

[note]

No Person elected a Member of Assembly, shall, during his continuing a Member, be capable of serving as Sheriff for any County.

[note]

Where no Sheriff shall be in Commission in any County at the Time of an Election for Members to sit in the General Assembly, the Coroner of the County shall take the Poll.

[note]

No Member of Assembly capable of being Inspector of Commodities or Tobacco.

[note]ATTACHMENT.

ATTACHMENT is the taking a Man's Body by Commandment of a Writ, and is grantable in Cases of Contempt, by all Courts of Record, in which they may proceed in a summary Way, at their Discretion. 2. Haw. 141.

[note]

In this Province the Court of Chancery has a Power of granting Attachment against any Person refusing to obey its Decrees, and the Superior and Inferior Courts have, by the Common Law, an undoubted Right of





granting an Attachment to inforce any of their Orders.

At present we have no Superior Courts, and therefore no Occasion of inserting here the Method of Proceeding by Attachment grantable by those and the Inferior Courts of this Province; but as ’tis probable when those Courts are restored to us it will not be without the Right of that necessary Process, we shall insert the Proceedings on Attachments as they stood by those Laws before they expired.

On a Complaint to the Chief Justice, or his Associates, or to any Justice of the Peace, by any Person, that his Debtor has removed, or is removing himself privately out of the County, so that Process cannot be served on him, on swearing to the Amount of his Debt, the Chief Justice, or any other Justice before whom such Complaint shall be made, shall grant an Attachment against the Estate of such Debtor, wherever the same shall be found, or in the Hands of any Person indebted to the Person absconding, returnable to the Court where the Matter is cognizable; which Attachment shall be the leading Process, and the same Proceedings had as upon a Writ of Capias ad Satisfaciendum.

[note]

Also, when the Sheriff returns Non est Inventus on a Writ to him directed, the Plaintiff may take out an Attachment against the Defendant's Estate, returnable to the Court from whence it issued; and if the Defendant fails to plead, the Plaintiff is intitled to a final Judgment, if on an Action of Debt, or to a Judgment by Default, if in Actions upon the Case, and a Writ of Enquiry to be executed the next Court.

Attachment is also granted by any Justice against the Estate of any Person who is indebted in this Province, and cannot be served with Process; also against the Lands and Tenements of Non-Residents, where they have done any Injury, or are indebted in this Province.

In all Cases of Attachment, the Goods are repleviable by the Defendant putting in special Bail, and pleading to Issue, so as not to delay the Defendant of a Trial.

[note]

When any Estate attached shall by three Justices be certified to be perishable, and not replevied in thirty Days, the same shall be sold by the Sheriff, first advertising the same at the Court-House ten Days before the





Sale, and the Money liable to the Judgment obtained. When an Attachment shall be served in the Hands of any Person, the Garnishee shall appear at the Court from whence the Attachment issued, and declare on Oath what he or she is indebted, or hath in his or her Hands belonging to the Person against whom the Attachment shall issue, and Judgment may be entered for the Sum that the Garnishee shall confess in his Hands. And if such Garnishee shall fail to appear and confess what may be in his Hands, Judgment shall go against him.

[note][note]

Before any Attachment can be granted, the Party praying it must give Bond to the Justice granting the same, in the following Form.

The Bond.

KNOW all Men, by these Presents, That we, A. B. C. D. and I. K. all of the County of — are held and firmly bound unto E. F. in the Sum of (double the Sum in the Attachment) to be paid to the said E. F. his Executors, Administrators, or Assigns: To which Payment well and truly to be made, we bind ourselves, and each of us, our Heirs, Executors, and Administrators, jointly and severally, firmly by these Presents. Sealed with our Seals, and dated this — Day of — in the Year of our Lord —

[note]

THE Condition of the above Obligation is such, That whereas the above bounden A. B. hath, the Day of the Date of these Presents, prayed an Attachment against the Estate of the above mentioned E. F. for the Sum of — and hath obtained the same, returnable to the next — Court, to be held for the District of — on the — Day of — next: Now if the said A. B. shall prosecute his said Suit with Effect, or in Case he be cast therein, shall well and truly pay and satisfy to the said E. F. all such Costs and Damages as shall be awarded and recovered against the said A. B. then the above Obligation to be void; otherwise to remain in full Force and Virtue.

Form of the Attachment.

North-Carolina, — County, ss.

GEORGE the Third, by the Grace of God, of Great-Britain, France, and Ireland, King, Defender of





the Faith, &c. To the Sheriff of — County, Greeting. Whereas A. B. hath complained on Oath to — Justice of the — Court, — that E. F. late of your County, — is justly indebted to him in the Sum of — (or hath endamaged him to the Amount of — ) and Oath having been also made, that the said E. F. hath removed himself privately out of your said County, or so absconds or conceals himself that the ordinary Process of Law cannot be served on him; and hath given Bond and Security, according to the Directions of the Act of Assembly in such Case made and provided: We therefore command you, that you attach the Estate of the said E. F. (if to be found in your Bailiwick) or so much thereof, repleviable on Security given, as shall be of Value sufficient to satisfy the said Debt, or Damages (according to the Complaint) and Costs; and such Estate so attached, in your Hands to secure, or so to provide that the same may be liable to further Proceedings thereupon to be had at our next — Court, to be held for the — of — at — on the — Day of — next, so as to compell the said E. F. to appear, and answer the above Complaint of the said A. B. when and where you shall make known to our said Court how you shall have executed this Writ. Witness —, Esq; Justice of our said — at — the — Day of — in the — Year of our Reign, Anno Dom. —

[note]

When any Justice of the Peace grants an Attachment returnable before himself, the Proceedings may be as follows:

[note]

The Sheriff, on serving the Attachment, must return the Truth of the Case; if the Defendant hath no Estate, the Return may be thus:

BY Virtue, &c. I have attached the within mentioned Sum of — and Costs, of the Estate of the within named E. F. in the Hands of L. M. of — as thas Warrant requires.

[note]

And hereupon, if the Defendant does not appear, and replevy his Goods, the Plaintiff may prove his Debt, and shall be intitled to a Judgment; which is to be granted him by the Justice.





Judgment for the Plaintiff.

— County, ss.

A. B. against E. F. } In Debt.

THE Attachment obtained by the said Plaintiff against the Estate of the said Defendant, being returned executed, before me, G. H. Esq; one of his Majesty's Justices of the Peace for the said County, and the said Defendant failing to appear, and replevy his Goods, the said Plaintiff proved his Debt, according to Law: And it is thereupon considered, that the said A. B. recover against the said E. F. — and the Costs of this Suit.

[note]

Upon this Judgment, the Justice may issue Execution, directed to the Officer who made Return of the Attachment.

— County, ss.

GEORGE the Third, by the Grace of God, of Great-Britain, France,and Ireland, King, Defender of the Faith, &c. To I. K. one of our Constables of the said County of — Greeting. We command you, that of the Goods and chattels of E. F. late of your Precinct, by you attached, you cause to be made the Sum of — which A. B. lately before G. H. Esq; one of our Justices of our said County, hath recovered against him for Debt; also the Sum of — which to the said A. B. before the same Justice, were adjudged for his Costs, in that Suit expended, whereof he is convicted, as appears to us of Record: And that you have the said — before our said Justice, the — Day of — next, to render to the said A. B. the Debt and Costs aforesaid; and that you have then and there this Writ. Witness the said G. H. the — Day of — in the — Year of our Reign.

[note]

G. H.

ATTAINDER and CONVICTION.

THESE Words are used promiscuously, and sometimes one is signified by the other: But in Propriety of Speech, a Man is said to be convicted, when he confesseth the Fault, or is found guilty by a





Jury, and before Judgment given; and he is said to be attainted, when, after Conviction, Judgment is passed by the Court.

[note]

When a Man hath committed Treason or Felony, and, after Conviction, Judgment hath passed upon him, he is then attainted: His Children cannot be Heirs to him, or any other Ancestor; if he were Noble, or Gentile before, he and his Posterity are made base and ignoble, in Respect of any Nobility or Gentry which they had by their Birth. This Corruption of Blood cannot be salved, but by Authority of Parliament; the King's Letters Patents will not do it. Co. Lit. l. 3. s. 745.

[note]

Attainder by Outlawry is, where the Party flies, or doth not appear, after he hath been five Times publicly called in Court, on five successive Court Days, and at last, upon his Default, is pronounced or returned outlawed.

The Punishment of a Person attainted, is,

[note]

1. Loss of Life.

2. Corruption of Blood.

3. Forfeiture of Fee-Simple Estate, from the Time of the Offence committed.

4. Forfeiture of Goods from the Time of the Attainder: But before Attainder, he may sell his Goods for his Maintenance in Prison. Dalt. 363.

At Common Law, if a Felon was found guilty upon the Coroner's Inquest, or that he is fled, returned by the Coroner, the Sheriff or Coroner might seize his Goods, before Trial, for the Use of the King; which ought to be appraised, and left in Custody of the Neighbours where the Offender lived: The Law was the same, if he did not fly, but was indicted; but then, after Appraisement, they ought not to be removed out of his House, before Attainder, if the Offender could give Security that they should not be embezzled; if not, they were to be delivered to the Neighbours, who ought to keep them during his Imprisonment, and he was to have reasonable Maintenance out of them, till Conviction. The Common Law is in this Particular confirmed by Statute; and the Party imprisoned shall recover double the value of his Goods seized by any Officer, or taken out of his House before Conviction. Dalt. 362, 363.





After Conviction, or, that he is fled, returned by the Coroner, all his Goods, Corn growing, Profits of his Fee-Simple Estate for a Year and a Day, and of his entailed Lands during Life, and all Debts due upon any Securities, are forfeited to the King: And the Party, to whom the King shall give the same, may bring Action, in his own Name, to recover them. Nels. 62.

If an Attainder by Outlawry is erroneous, the Party may appear at any Time, and reverse the Outlawry.

A Person attainted, is not bailable by Justices of Peace.

ATTORNEY.

ATTORNEY is a Person that is put in the Place of another, to do and transact his Business, as being of more Ability, and Knowledge in the Law, than him by whom he is employed.

[note]

No Person shall act as Attorney or Solicitor, for Gain or Reward, without being duly admitted and inrolled, on Penalty of 50 l. 2 G. 2. cap. 23.

[note]

No Attorney capable of being a Justice of the Peace, during his Continuance in the Commission. 5 G. 2. c. 18, s. 2.

No Recusant Convict shall practice as an Attorney, on Pain of 100 l. 3 J. c. 5. s. 8.

If an Attorney should be appointed Constable, he may have a Writ of Privilege to discharge him, as his Business requires his Attendance in Courts. 2 Hawk. 63.

It is held that Attornies shall not be elected to any Office without their Consent, as their Business in Courts prevents their Execution of it. Cro. Car. 11, 585.

Before an Attorney can practise at any Court in this Province, he must be licensed by the Governor or Commander in Chief, and take the Oaths of Government, and subscribe the Test.

[note]

By an Act of Assembly of this Province, no Attorney shall take more than the following Fees, to wit,

For every Action in the Superior Court, except where the Title or Bounds of Lands come in Question, the Sum of 2 l. 10 s.

[note]



For every such Action in any Inferior Court, 1 l. 5s.

For every real Action, or such as respects the Title of Lands, 5 l.

For every Petition for the Recovery of Legacies, filial Portions, or distributive Shares of Intestates Estates, if in the Superior Court, 3 l. 10 l.

If in the Inferior Court, 1 l. 15s.

For every Opinion or Advice in Matters cognizable in the Superior Court, where no Suit is or shall be brought, and prosecuted or defended by the Attorney giving such Advice, but not otherwise, 20s.

For every Opinion or Advice in Matters cognizable in the Inferior Court, where no Suit is or shall be brought, and prosecuted or defended by the Attorney giving such Advice, but not otherwise, 10s.

And any Attorney taking or exacting greater Fees, shall forfeit 50 l. one Half to the Informer, and the other Half to the King.

[note]

The Clerks of the several Courts are to tax the Attornies Fees in every Bill of Costs.

[note]

If any Attorney shall be guilty of any wilfull Neglect in any Cause, the Court before whom the Matter is tried, on Complaint, shall order such Attorney to pay all Costs. And every Bond or Specialty for Payment of larger than the lawful Fees, shall be void.

[note]

Notwithstanding, after Determination of any Suit, a Client may make his Lawyer a greater Compensation, if he thinks he has merited it.

[note]AWARD.

AS Arbitrations are very frequent, and often prevent expensive Law Suits, it is thought necessary to point out here how far the Law encourages them, and what Matters may lawfully be submitted to Arbitration.

[note]

Mr. Burn, in his Office of a Justice, has said every Thing on that Head useful to our Purpose; we shall therefore take his Words.

I. What Things may be submitted to Arbitration.

1. It is held clearly that all Matters of Controversy, either of Fact, or of a Right in Things and Actions personal and uncertain, may be submitted to Arbitration. 9 Co. 78.

[note]



2. Matters of Freehold, or any Right and Title to a Freehold, cannot be submitted to Arbitrament; for a Freehold is not transferrable from one to another, without Livery and Seisin: Yet if there be a Submission concerning the Right, Title, or Possession of Lands and Tenements, and the Parties enter into mutual Bonds, to stand to the Award made relating to then, they forfeit their Bonds unless they obey it. 1 Roll. Abr. 242, 244. Read. Arb, Wood, b. 4. c. 3.

[note]

So if the Condition of an Obligation is, to stand to an Award touching Lands, and the Arbitrator awards the Land to one, and that the other shall release to him; if he doth not release, the Obligation is forfeited. 1 Bac. Abr.

But if the Arbitrator awards the Land to one, it seems the Obligation is not forfeited, though the other do not convey to him to make him a good Title; for the Arbitrator hath not awarded any Act to be done by the Party, and the Award itself cannot transfer the Right, and so must be void, and then the Condition of the Obligation cannot be forfeited: For the awarding the Land to one, cannot be expounded, that the other shall infeoff him. id.

And although there be no Bond, yet if the Arbitrator do award that the one shall infeoff the other; it seems that an Action on the Case may be maintained for not doing it: For the Award in itself is as good as if there were a Bond, and then there is the same Reason an Action should lie, as that the Condition of the Obligation should be forfeited; for if such an Award were void, then the Condition of the Obligation to perform it could not be broken. id.

II. The several Kinds of Submission to Arbitration.

[note]

1. A Submission by Words is good, and the Party in whose Favour the Award is made, hath a Remedy to inforce a Performance of it: Yet it is not expedient that any Submission should be by Parol, because the Party may revoke it at Pleasure, at any Time before the Award made, and that by Word likewise; and the Judges will rarely inforce the Performance of an Award, when either the Submission or the Award is by Parol, because it lays so great a Foundation for Perjury. Compl. Arb. 21.

2. Submission may also be by Covenant; but this





Method is seldom used: For though it contains the same Certainty with a Bond, yet the Method of suing on a Covenant is different, and more difficult than in suing on a Bond. Compl. Arb. 7. 46.

[note]

3. Submission by Rule of Court, is made in Pursuance of the Statute 9 & 10 W. c. 15. which enacteth as follows:

[note]

It shall be lawful for all Merchants and Traders, and others desiring to end any Controversy, Suit, or Quarrel (for which there is no other Remedy than by personal Action, or Suit in Equity) by Arbitration, to agree that their Submission to the Award or Umpirage be made a Rule of any of his Majesty's Courts of Record, which the Parties shall choose, and to insert such Agreement in their Submission, or the Condition of the Bond or Promise, whereby they submit themselves: Which Agreement being so made, and inserted in their Submission or Promise, or Condition of their respective Bonds, shall or may, on producing an Affidavit thereof, made by the Witnesses thereunto, or any one of them, in the Court of which the same is agreed to be made a Rule, and reading and filing the said Affidavit in Court, be entered of Record in such Court; and a Rule shall thereupon be made in the said Court, that the Parties shall submit to, and finally be concluded by such Arbitration or Umpirage; and in Case of Disobedience to such Arbitration or Umpirage, the Party neglecting or refusing to perform the same, or any Part thereof, shall be subject to all the Penalties of contemning a Rule of Court, and the Court on Motion shall issue Process accordingly; which Process shall not be stopped or delayed in its Execution, by any Order of any other Court of Law or Equity, unless it shall be made appear on Oath to such Court, that the Arbitrators or Umpire misbehaved themselves, and that such Award was procured by Corruption, or other undue Means.

And this is allowed to be the most expeditious Way; and the Method is to get a Counsel to move in any of the Courts to have it made a Rule, which in such Case is never denied: and then the Party is liable to the same Penalties that he would be for disobeying any other Rule of Court. Compl. Arb. 6, 47.

4. Or lastly, the Submission may be by Bond. In which Case each Party must give to the other a Bond;





which Bond, and Condition, must contain exactly the same Words, only changing the Names of the Parties. And the Penalty of the Bond should at least be the Value of the Thing submitted; so that the Party may rather abide by the Award, than forfeit his Obligation. Compl. Arb. 46.

[note]

And undoubtedly a Submission by Bond, in some Respects, exceeds a Submission by Rule of Court; for an Award made pursuant to Bonds of Submission, may bind the Parties Executors; but if the Party, who refuses to perform an Award made pursuant to a Rule of Court, shall die, the Act of Parliament directing, that the Prosecution shall be carried on by Attachment, the Remedy being lost, the Award is lost likewise. Compl. Arb. 34.

5. Sometimes the Submission is both by Bond and Rule of Court, by adding the Party's Consent at the Bottom of the Condition of the Bond; and this is still the best Way, for then the Party may proceed which Way he pleases: And it is said, that he may proceed both Ways; that is to say, both on the Bond, and have an Attachment likewise for the Contempt. 1 Salk. 73.

[note]

6. But in which Way soever the Submission is made, the same nevertheless may be revoked, though made irrevocable by the strongest Words; for a Man cannot by his own Act make such Authority or Power not countermandable, which by the Law, and in its own Nature, is countermandable. 8 Co. 82.

[note]

But if the Submission be by Bond, if the Party revokes, he forfeits his Obligation, for that he hath broken the Words of the Condition, which are, that he shall stand to and abide the Award. And if he revokes, he must likewise give Notice of the Revocation; and if the Submission was by Bond, the Revocation must be in Writing. 8 Co. 82.

And if the Submission be made a Rule of Court, pursuant to the Act of Parliament; if either of the Parties revokes, the Court will grant an Attachment. Compl. Arb. 82.

But if the Submission be by Word, the Party may revoke at Pleasure, and he forfeits nothing; but he must in this Case likewise give Notice of the Revocation, though it need not be in Writing: And the Notice must be to the Arbitrators themselves. 8. Co. 82.





III. The Award; and therein what shall be deemed a good Award, and what not.

[note]

1. The Arbitrators cannot enjoin an Oath to the Witnesses, there being no Law which gives them any such Power.

2. It is highly convenient that the Award be in Writing, and so to be mentioned in the Submission. Compl. Arb. 34.

[note]

3. One Thing essential to a good Award is, that it be made with Respect to Persons and Things, according to the Submission. Wood b. 4. c. 3.

[note]

Upon which Ground, as the Arbitrators are, with Respect to the Things submitted, circumscribed and tied down to the Submission; so in several Cases it has been disputed, whether their awarding Releases to the Time of the Award, and not to the Time of the Submission, was good; it is therefore most advisable to award Releases to the Time of the Submission; though it is now clearly held, that general Releases shall extend only to the Time of the Submission, and that, if there be Releases awarded to the Time of the Award, they shall be good, unless it be shewn on the other Side that some new Matter hath arisen between the Parties between the Submission and Award. 1 Roll. Abr. 242. 6 Mod. 34.

That is to say, an Award of Releases to the Time of making the Award, includes all that is within the Submission, and more; which shall be good for so much as is within the Submission, and void for the Residue. 1 Bac. Abr.

If the Submission be, so as the Award be ready to be delivered to the Parties, or to such of them as shall desire the same, the Parties so bound are themselves obliged to take Notice of the Award at their Peril; but if the Words of the Submission be, so that the Award he delivered to each Party by such a Day, then it must be delivered to each Party accordingly. Read. Arb. Wood b. 4. c. 3.

But though the Words of the Submission may be such, as will oblige the Parties to take Notice of the Award at their Peril; yet if the Arbitrators award that one of the Parties shall do an Act, which depends upon another first to be done of the other Party, he must have Notice of it; at least the Party who would take Advantage of it, must shew that he hath done what was necessary on his Part. Compl. Arb. 12.





4. It is settled, that Arbitrators cannot proceed on a Reference, after they have once named an Umpire; for then their Authority ceaseth, though the Time for making the Award is not expired. Rep. of Pract. in C. B. 116.

[note]

If a Submission is to three Arbitrators, or any two of them, and two of them by Fraud or Force will exclude the other, that alone is sufficient to vitiate the Award; or if they have private Meetings, and admit one of the Parties, but give no Notice to the other, but suffer the Attorney of the Party whom they admitted to draw up the Award, such Award shall be set aside for Partiality and Unfairness. 2 Vern. 514.

It is a general Rule in Equity, that when it appears that any one of the Arbitrators was any way interested in the Matters in Controversy, the Award is to be set aside. Compl. Arb. 75.

And it is the strongest Argument of Partiality to shew that the Arbitrators received from either of the Parties any considerable Sum of Money, or any other Present, which may be a Temptation to act corruptly; but the Sum or Present must be proved to be so exorbitant, as to induce the Court to believe that it biassed their Judgments; otherwise it will be of no Effect. Compl. Arb. 76.

5. If the Arbitrators award a Thing to be done, it may be proper for them to appoint a Time and Place for the doing of it; and the Party who would take Advantage of it, must shew that he has done what was requisite on his Part: But if a Thing is to be done generally, without mentioning Time and Place, it shall be done immediately. 2 Brown. 311.

[note]

6. If the Submission is by Rule of Court, it is necessary that there be a personal Demand of the Thing awarded; and the Party must make Affidavit of such Demand, before he can have an Attachment. 1 Salk. 83.

[note]

7. If a Sum of Money be awarded to one of the Parties, and that upon the Payment thereof they both shall give mutual Releases; if he who is to receive the Money refuses it, yet upon a Tender and Refusal, he is as much obliged to sign a Release as if he actually received it. 1 Salk. 75.

[note]



Form of a Submission by Rule of Court.

WHEREAS divers Disputes and Controversies have arisen, and are now depending, between A. B. of — in the County of — Planter, of the one Part, and C. D. of — in the said County, Planter, of the other Part, touching and concerning — Now for the ending and deciding thereof, it is hereby mutually agreed by and between the said Parties, that all Matters in Difference between them, for, touching, and concerning all and every the Matters and Things herein above specified and particularly mentioned, shall be referred and submitted to the Arbitrament, final End, and Determination of A. A. of — in the said County, Gentleman, B. A. of — in the said County, Planter, and C. A. of — in the said County, Planter, or any two of them, Arbitrators indifferently elected by the said Parties, so as the said Arbitrators, or any two of them, do make and publish their Award in Writing, ready to be delivered to the said Parties, or such of them as shall desire the same, on or before the — Day of — next ensuing the Date hereof: And it is hereby mutually agreed by and between the said Parties, that this Submission shall be made a Rule of his Majesty's Court of — In Witness whereof, the said Parties to these Presents have hereunto set their Hands, this — Day of — in the — Year, &c.

[note]

Arbitration Bond.

KNOW all Men by these Presents, That I A. B. of — in the County of — Gentleman, am held and firmly bound unto C. D. of — in the said County of — Planter, in — Pounds, to be paid to the said C. D. or to his certain Attorney, his Executors, Administrators, or Assigns: To which Payment well and truly to be made, I bind myself, my Heirs, Executors, and Administrators, firmly by these Presents. Sealed with my Seal, and dated the — Day of — in the — Year of the Reign of our Sovereign Lord George the Third, of Great-Britain, France, and Ireland, King, Desender of the Faith, and so forth, and in the Year of our Lord —

[note]

Condition to stand to the Award of two Arbitrators, in common Form.

THE Condition of the above Obligation is such, that if the above bound A. B. his Heirs, Executors,





and Administrators, and every of them, for and on his or their Parts and Behalfs, do and shall well and truly stand to, obey, abide, perform, observe and keep the Award, Order, Arbitrament, final End and Determination of A. A. of — Esq; and B. A. of — Gentleman, Arbitrators indifferently named, elected, and chosen, as well for and on the Part and Behalf of the above bound A. B. as of the above named C. D. to arbitrate, award, order, adjudge, and determine, of and concerning all and all Manner of Action and Actions, Cause and Causes of Action and Actions, Suits, Bills, Bonds, Specialties, Judgments, Executions, Extents, Accounts, Debts, Dues, Sum and Sums of Money, Quarrels, Controversies, Trespasses, Damages and Demands whatsoever, both in Law and Equity, or otherwise howsoever, which at any Time or Times heretofore have been had, made, maved, brought, commenced, sued, prosecuted, committed, omitted, done, or suffered by or between the said Parties, so as the said Award be made in Writing, and ready to be delivered to the said Parties, on or before the — Day of — now next ensuing, then this Obligation to be void, otherwise of Force.

[note]

If the Parties have a Mind to make their Submission a Rule of Court, then this may be added:

And the above bound A. B. doth agree and desire that this his Submission be made a Rule of his Majesty's Court of — pursuant to the Act of Parliament in such Case made and provided.

Condition to stand to the Award of three Arbitrators, or any two of them, and an Umpire appointed.

THE Condition of this Obligation is such, that if the above bound A. B. his Heirs, Executors, and Administrators, for and on his and their Parts and Behalfs, shall and do well and truly stand to, obey, abide, observe, perform, fulfil, and keep the Award, Order, Arbitrament, final End and Determination of — or any two of them, Arbitrators indifferently elected and named, as well by and on the Part and Behalf of the said A. B. as by and on the Part and Behalf of the above named C. D. to arbitrate, award, order, judge and determine, of and concerning all and all





Manner of Action and Actions, Cause and Causes of Action and Actions, Suits, Bills, Bonds, Specialties, Covenants, Contracts, Promises, Accounts, Reckonings, Sums of Money, Judgments, Executions, Extents, Quarrels, Controversies, Trespasses, Damages, and Demands whatsoever, at any Time heretofore had, made, moved, brought, commenced, fued, prosecuted, done, suffered, committed, or depending by or between the said Parties; so as the Award of the said Arbitrators, or any two of them, be made and set down in Writing, under their or any two of their Hands and Seals, ready to be delivered to the said Parties in Difference, on or before the — Day of — now next ensuing; then this Obligation to be void, otherwise of Force.

[note]

And if the said Arbitrators shall not make such their Award of and concerning the Premises, within the Time limited as aforesaid, then if the said A. B. his Heirs, Executors, and Administrators, for and on his and their Part and Behalf, do and shall well and truly stand to, observe, perform, fulfil, and keep the Award, Determination, and Umpirage [if the Umpire be named] of — being a Person indifferently named and chosen between the said Parties for Umpire; [if not named] of such Person as the said Arbitrators shall indifferently choose for Umpire in and concerning the Premises; so as the said Umpire do make and set down his Award and Umpirage in Writing, under his Hand and Seal, ready to be delivered to the said Parties in Difference, on or before the — Day of — now next ensuing; then this Obligation to be void, otherwise in Force.

[And the above bound A. B. doth agree and desire that this his Submission be made a Rule of his Majesty's Court of — pursuant to the Act of Parliament in that Case made.]

Form of an Award.

TO all to whom these Presents shall come, we A. B. of — and C. D. of — do send, greeting.

Whereas there are several Accounts depending, and divers Controversies have arisen, between — of — Planter, of the one Part, and — of — Planter, of the other Part; and whereas, for the putting an End to the said Differences, they the said — and — by





their several Bonds or Obligations, bearing Date — last past, are reciprocally become bound each to the other, in the penal Sum of — to stand to, abide, perform, and keep the Award, Order, and final Determination of us the said — so as the said Award be made in Writing, and ready to be delivered to the Parties in Difference on or before — next ensuing, as by the said Obligations and Conditions thereof may appear: Now know ye, that we the said Arbitrators, whose Names are hereunto subscribed, and Seals affixed, taking upon us the Burden of the said Award, and having fully examined and duly considered the Proofs and Allegations of both the said Parties, do make and publish this our Award between the said Parties in Manner following; that is to say, First, we do award and order that all Actions, Suits, Quarrels, and Controversies whatsoever, had, moved, arisen, and depending between the said Parties in Law or Equity, for any Manner of Cause whatsoever touching the said Premises, to the Day of the Date hereof, shall cease and be no farther prosecuted; and that each of the said Parties shall pay and bear his own Costs and Charges in any Wise relating to, or concerning the Premises. And we do also award and order, that the said — shall deliver, or cause to be delivered to to the said — at — within the Space of — &c. And further, we do hereby award and order, that the said — shall, on or before — pay, or cause to be paid unto the said — the Sum of — We do also award and order, &c. And lastly, we do award and order, that the said — and — on Payment of the said Sum — shall in due Form of Law, execute each to the other of them, or to the other's Use, general Releases, sufficient in the Law for the releasing by each to the other of them, his Heirs, Executors, and Administrators, of all Actions, Suits, Arrests, Quarrels, Controversies, and Demands whatsoever, touching or concerning the Premises aforesaid, or any Matter or Thing thereunto relating, from the Beginning of the World, until the — Day of — last past (viz. the Day of the Date of the Arbitration Bonds). In Witness whereof, we have hereunto set our Hands and Seals, the — Day of —

[note]

Form of an Umpirage.

RECITE the Arbitration Bonds, as before. New know ye, that I — Umpire indifferently chosen by — having deliberately heard and understood the





Grief and Allegations and Proofs of both the said Parties, and willing (as much as in me lieth) to set the said Parties at Unity and good Accord, do by these Presents arbitrate, award, order, decree, and judge as followeth; that is to say, &c.

BAIL.

BAIL is so called, because the Party bailed is delivered by the Law into the Custody of those that are his Bail, and who are to answer for him, if they do not produce the Principal to do it. Style 113.

[note]

It also signifies the setting at Liberty of one arrested or imprisoned, upon an Action civil or criminal, under Security taken for his Appearance at a Day and Place certain, and thereby delivering the Prisoner into the Hands of his Friends.

[note]

Bail differs from Mainprize, for he that is bailed is, by the Law, accounted to be always in the Custody of those Persons that bailed him; but he that is mainprized is always at large, to go at his own Liberty, from the Time he is mainprized till the Day of his Appearance. 2 Inst. 78.

By the Statute of Westm. 1 cap. 15. made Anno 3. Edw. 1. it is directed where Bail shall be taken, and where not: And the Statute, 1 & 2 Phil. & Mar. cap. 13. gives Justices of Peace Power to Bail.

Justices may bail any Prisoner committed for an Offence within their Jurisdiction, and cognizable before them; but they cannot bail Persons arrested in any personal Action, by Writs issuing out of any Court of Record: For they cannot hear and determine such Actions, but only in open Court. Style 182.

[note]

Persons arrested in any personal Action, upon civil Process, are not bailable by Justices of Peace; because the Sheriff is answerable for his Prisoner, and must at his Peril bail him, and make Return of the Process to the same Court whence the Writ is issued. Dalt. 424.

If Justices of Peace bail any Person who is not bailable by Law, they ought to be fined; and if they refuse to admit any Person to bail, where he is bailable by Law, it is a Misdemeanor, and finable.

[note]

It is therefore to be considered,





1. In what Cases Bail is by Law allowed.

2. Where it is in the Discretion of the magistrate to allow or deny it.

3. Where by Law Bail is taken away.

1. Bail is to be allowed generally in all criminal Cases, where the Offender, upon Conviction, is not adjudged to suffer Death as a Felon, or where the Punishment does not extend to Life or Member.

[note]

So ’tis likewise to be allowed in Offences for Breach of any Penal Laws, if by such Law Bail be not expressly taken away.

So also to Accessaries in Felony, before or after the Fact, until the Principal is convicted. Dalt. 381. And to Buyers and Receivers of stolen Goods, who may be prosecuted for Misdemeanor, and punished by Fine and Imprisonment, although the principal Felon be not convicted.

But in all these Cases, it is to be observed, when any Offender taken, and brought before a Justice of Peace, shall be admitted to Bail, that the Sums wherein he and his Sureties are bound for his Appearance, ought to be proportioned to the Nature, Quality, and Circumstances of the Offence whereof he is accused: If it be for Breach of the Peace, good Behaviour, or a slight Trespass, or any Matter of the like Nature, it may be sufficient to bind the Principal in 20 l. and his Sureties in 10 l. each; but if it be for any Crime of a higher Degree, the Sums may be considerably enlarged, according to the Circumstances of the Fact appearing to the Justice.

[note]

2. Bail, at the Discretion of the Justices, is in some Cases to be allowed or denied: As if a dangerous Blow is given, the Offender may be bailed till the other is dead. Dalt. 420.

[note]

By the Statute, 1 & 2 Phil. & Mar. cap. 13. Manslaughter is bailable by two Justices, whereof one to be of the Quorum, who must be present when they take the Bail; and it must be after Examination, that it may appear whether the Party accused is bailable or not, for it must stand indifferent whether he did the Fact: Manslaughter is not bailable if the Fact is confessed, or ’tis certainly known that he killed the Person, or if ’tis found Manslaughter upon the Coroner's Inquest.

Persons taken upon Suspicion of Burglary, Robbery, Theft, or other Felony, or indicted of Petty Larceny,





under the Value of 12 d. if they be not of evil Fame, nor any strong Presumption appear against them, may be bailed. Dalt. 423.

Accessaries in Murder, as well as other Felonies, if they be of good Fame, are bailable, until the Principal be convicted or attainted: But after Conviction of the Principal, the Accessary shall not be bailed, but kept in Prison, until he appear and plead to the Indictment; and then the Court may admit him to Bail. Ib.

Persons charged with any Trespass, not touching Life or Member, are bailable by the Statute of Westm. 1. cap. 15. if Bail be not prohibited by any later Statute: And Persons in Custody, upon Process issued out of any Court of Record, upon an Indictment, if Bail be not expressly prohibited by the Statute whereupon such Party stands indicted, may be bailed by two Justices, one being of the Quorum. Ib.

Any Person who is appealed by an Approver, if he be no common Thief, nor defamed, after the Death of the Approver, is bailable by the said Statute of Westm. 1. Dalt. 424.

An Approver, or Appellor, is a Person who hath committed Felony, and being in Prison for the Fact for which he is indicted, and arraigned, and there being a Coroner assigned him by the Court, confesseth that very Fact before him, and then impeacheth other Persons, as Coadjutors with him in the same Crime; and so much Credit is given to this Confession, that Process shall issue against the Party so impeached or appealed; and he shall be arraigned, as if an Indictment by a Grand Jury had been found against him. Nels. 54.

No Person can be an Approver but in Felony or Treason, and upon an Indictment only; and an Approver must accuse the other of such an Offence, as he himself did, together with the other: If a Felon will be an Approver, that is, will confess the Felony, and accuse others that were Coadjutors with him in the same Felony, before a Justice of Peace, such Justice may take his Confession in Writing, and commit him to Gaol; and may issue his Warrant for apprehending the Persons accused. Dalt. 424, 425.

3. Bail is taken away from Offenders in any of the Cases here under-mentioned, by the Statute of Westm. 1. cap. 15. confirmed by another Statute, 1 & 2 Phil. & Mar. cap. 13.

[note]



Abjurors.—Of the Realm.W. 1. cap. 15.
Accessaries.—In Treason.
Appeals.—Of Death.H. P. C. 103.

Approvers.Nor Persons appealed by an Approver, so long as the Approver liveth, except the Party accused be of good Fame, or the Approver waves his his Appeal, or is vanquished. W. 1. cap. 15.
Armour.Persons going armed in an Affray, or before the King's Justices or Ministers, and committed by Justices of Peace. Stat. North. 2 Edw. 3.
Arrest.Procured in the Name of another, not privy nor consenting thereto, Six Months Imprisonment, without Bail; and before Enlargement shall pay the Party arrested treble Costs, Damages, and Expences, and Ten Pounds to the Party in whose Name the Arrest issued. 8 Eliz. cap. 2.

Breakers of Prisons.W. 1. cap. 15.
Burners of Houses.
Coiners of false Money.
Counterfeiters of the Great Seal.
Excommunicate Persons.
Felons and notorious Thieves, taken with stolen Goods, or by Hue and Cry.

ForgersOf Deeds, Wills, or Writings, sealed, or of any Acquaintance: Those who assent to it, and those who knowingly publish such. 5 Eliz. cap. 14.
Fraudulent Conveyances.Those who put them in Suit, and those who assign Lands or Goods, so to them conveyed, knowing thereof. 13 Eliz. cap. 5, 14. cap. 11 & 27. cap. 4.
Manslaughter.After Confession of the Offender. 2 Inst. 187. Self-Defence not bailable by Justices of Peace. H. P. C. 99, 161.
Mahem.Where, upon Evidence, the Fact shall appear heinous, the Offender shall not be bailed. 6 H. 7.





Murder,Not bailable at common Law; yet it hath sometimes been allowed by the Justices of the King's Bench, and adjudged that the Statute of Westm. 1. should receive a favourable Construction, according to the Discretion of the Judges, and the Circumstances of the Case. If Bail is allowed in Murder, ’tis taken Body for Body.
Outlawry.—In Case of Felony. W. 1. cap. 15.
Perjury.In any Court of Record, and the Procurers of such Perjury. 14 Eliz. cap. 11.
Prophecyers,Intending to make Disturbances in any of the King's Dominions: First Offence, one Year's Imprisonment; second Offence, Imprisonment during Life. 5 Eliz. cap. 5.
Rioters,Attainted of great Riots, shall be imprisoned one Year, without Bail. 2 Hen. 5. cap. 8.
Rogues incorrigible,Being committed, must continue in Custody till the next Sessions. 39 Eliz. cap. 4.
Sheriff,Under-Sheriff, or other Officer, making any Warrant for an Arrest, without original Process or Writ, to be committed till he pay 10l. and Costs and Damages, to the Party grieved, and 20l. to the King.
Suit,In another Man's Name, there being no such Person, or without the Consent of the Person, convicted by two Witnesses, six Months Imprisonment; and until he pay 10l. and treble Costs and Damages to the Party grieved. 8 Eliz. cap. 2.
Treason.—W. 1. cap. 15.
Witches,Conjurers, Sorcerers, and others, who take upon them to hurt another, by Witchcraft, Conjuration, &c. tho’ it is not done; or to tell where Goods lost or stolen may be found; or to provoke Love; or shall hurt





any Cattle or Goods; one Year's Imprisonment after Conviction. 1 Jac. 1. cap. 21.
Women.Taking them unmarried, and under Sixteen Years of Age, out of Possession of Father or Mother, or Guardian, and against their Wills; except such Taking shall be in Behalf of the Master or Mistress, or Guardian, in Soccage of such Child, two Years Imprisonment. Deflowering such Child, or contracting Marriage, without Consent of the Father, if living, or else of the Mother, five Years Imprisonment, without Bail, or pay such Fine as the Court shall assess; to be divided between the King and Prosecutor. 4 & 5 Phil. & Mar. cap. 8.

Persons committed by Judgment of any Court of Record, for Misdemeanor, or any other Matter within the Jurisdiction of such Court, are not bailable; for such Imprisonment is for Punishment of the Offender. Dalt. 420.

One that is in Execution is not bailable by Law; for Bail is put in to secure the Plaintiff, that the Defendant shall perform the Judgment of the Court; and now the Law hath determined the Matter, and what remains is, for the Defendant to perform the Judgment, and for not performing it he lies in Execution. Style 102.

No Person arrested for Manslaughter or Felony, or Suspicion thereof, and being by Law bailable, shall be bailed or mainprized by any Justices of Peace, but in open Court, or by two Justices of the Peace, and both to be present, and to take the Examination of the Prisoner, and the Depositions of the Witnesses, in Writing, before they bail him: Which Examination, together with the Recognizances entered into by the Witnesses, and the Prisoner and his Sureties, shall be by such Justices certified to the Court before whom such Prisoner is to be tried. 1 & 2 Phil. & Mar. cap. 13.

Mr. Dalton has well observed, that it behoveth Justices to be very circumspect in this Matter; for if Bail be refused, where by Law the Party is bailable, and offers sufficient Sureties, the Justice or Justices so refusing,





shall be grievously amerced to the King; and he that taketh any Fee or Reward for admitting a Prisoner to bail, shall be amerced to the King, and forfeit to the Prisoner double the Value of the Reward so taken: And if Justices do bail or mainprize any Person by Law not bailable, such Justice shall be fined by the Justices of Gaol Delivery. Dalt. 417, 418.

[note]

One single Judge will not bail a Prisoner in a difficult Case, but will advise with his Companions; so cautious are they not to do any Thing against Law. Style 111.

Where a Man is bailable, he must offer Sureties to the Justices, and pray that he may be admitted to Bail, otherwise he may be committed to Prison. Dalt. 419.

[note]

The Sureties and Sums are left to the Discretion of the Justices, where no Sum certain is limited by Law: But if the Crime be Suspicion of Felony, they must take very sufficient Persons for the Appearance of the Party, and bind them in a good Sum. The Justices may examine, upon Cath, the Sureties concerning their Sufficiency; and if, at any Time before the Day of Appearance, they think the Sureties taken not sufficient, they may compel the Party to give better, or commit him: Likewise, if the Sureties suspect the Offender will run away, they may bring him before the Justices, and desire to be discharged; whereupon he must give other Security, or be committed. Nels. 73, 74.

[note]

One that is within Age ought not to be admitted Bail for another; for he is not a Person responsible at the Law, as one that is Bail must be, for him for whom he becomes Bail. Style 110.

[note]

For Want of taking sufficient Bail, the Justices of Peace are finable. Dalt. 417.

Every Mittimus ought to express the Cause of Commitment, that it may appear whether the Prisoner is bailable or not: If he is bailable, any other Justices of the same County wherein he is committed, may admit him to bail.

[note]

If a Justice of Peace commit a Man for any Felony, for which by Law he is not bailable, but by his Mittimus he is committed generally, with these Words, viz. without Bail or Mainprize, but not expressing the Cause of Commitment, and thereupon other Justices admit him to Bail, they shall be fined; for they, at their Peril, ought to inform themselves of the Truth of the Matter before they bail him. Dalt. 419.

[note]



For more Certainty, I have under each respective Head of criminal Offence declared the Penalties inflicted by Law for such Offence, and whether the Offender is bailable or not.

When a Person that is bailable is brought before a Justice of the Peace, and offers Securities, the Justice takes Bail in the following Form, if for Petit Larceny, Trespass, or any slight Matter cognizable before the County Court.

Form of Bail.

— County, ss.

BE it remembered, that on the — Day of — in the — Year of the Reign of our Sovereign Lord George the Third, by the Grace of God, of Great-Britain, France, and Ireland, King, &c. A. B. C. D. and E. F. came before me G. H. one of his Majesty's Justices of the Peace for the said County, and acknowledged themselves to be severally indebted to our said Lord the King, his Heirs and Successors, in the Sum of — that is to say, the said A. B. and C. D. in the Sum of — each, and the said E. F. in the Sum of — to be levied on their several Goods and Chattels, Lands and Tenements; on Condition, that the said E. F. do and shall make his personal Appearance before the Justices of the Court of Pleas and Quarter Sessions to be held for the said County on the — Day of — next, then and there to answer to our said Lord the King for and concerning — (here mention the Felony, Trespass, or Matter charged) and to do and suffer what shall be then and there enjoined him by the said Court, and not depart without Leave.

[note]

Acknowledged before me the Day and Year above written.

G. H.

If the Crime for which the Person stands charged is of a higher Nature, and he is bound to the Superior Court, change the Description of the Court and the Justices.

There is a Form of Bail when the Person to be bound is in Gaol, but the Practice of this Country is, for the Gaoler to carry the Prisoner before the Justice with his Sureties, there to be discharged when Bail is taken; which saves a long Precept to the Gaoler for the Deliverance of the Prisoner.

If Bail cannot be obtained no other Way, the Subject is relieved by the Habeas Corpus Act, which Mr.





Jacob says, is the Great Writ of English Liberty, and lies where one is indicted for any Crime or Trespass before Justices of the Peace, or in any Court of Franchise, and being imprisoned for the same, hath offered sufficient Bail, but it is refused where Bailable.

[note]

This Writ was originally ordained by the Common Law, as a Remedy for those that were unjustly imprisoned; but as it was to be granted at the Discretion of the Judges, it was too often abused, and the Subject denied the Relief it was intended to give. We therefore find, that by the 31. C. 2. c. 2. it was reduced to a Statute, the Substance of which, from Mr. Burn, we shall here give.

If the Commitment is for Treason or Felony, plainly and specially expressed in the Warrant of Commitment; also if any Person is committed and charged as Accessary before the Fact to any petty Treason or Felony, or upon Suspicion thereof, or with Suspicion of petty Treason or Felony, which petty Treason or Felony shall be plainly and specially expressed in the Warrant of Commitment: In such Cases the Person shall not be bailed on a Writ of Habeas Corpus, otherwise he may be bailed.

[note]

Also if a Person is committed for Treason or Felony specially expressed, yet if he shall in open Court the first Week of the Term, or first Day of Assize, petition to be tried, and shall not be indicted some Time in the next Term or Assize after the Commitment, he shall upon Motion the last Day of the Term or Assize, be bailed, unless it shall appear to the Judge, upon Oath, that the King's Witnesses could not be produced within that Time, and then if he is not tried in the second Term or Assize, he shall be discharged.

Previous to the aforesaid Bailment, the Prisoner, or some Person on his Behalf, shall demand of the Officer or Keeper a true Copy of the Warrant of Commitment, which he shall deliver in six Hours, on Pain of 100 l. to the Party grieved, for the first Offence, and 200 l. and Forfeiture of his Office for the second.

Then Application is to be made in Writing by the Prisoner, or any Person for him, attested and subscribed by two Witnesses who were present at the Delivery thereof, to the Court of Chancery, King's Bench, Common Pleas, or Exchequer, or if out of Term Time, to the Lord Chancellor, or one of the Judges; and a Copy of the Warrant of Commitment shall be





produced before them, or Oath made that such Copy was denied.

But if any Person hath wilfully neglected by the Space of two Terms to apply for his Enlargement, he shall not have a Habeas Corpus granted in the Vacation.

This being done, the Lord Chancellor, or Judges respectively, shall award an Habeas Corpus under the Seal of the Court, on Pain of 500 l. to be marked in this Manner, Per statutum tricesimo primo Caroli secundi regis, and signed by the Person that awards the same; and shall be directed to the Officer or Keeper, returnable immediate.

And the Charges of bringing the Prisoner shall be ascertained to the Judge or Court that awarded the Writ, and indorsed thereon, not exceeding 12 d. a Mile.

Then the Writ shall be served on the Keeper, or left at the Gaol with any of the under Officers; and the Charges so indorsed shall be paid or tendered to him, and the Prisoner shall give Bond to pay the Charges of carrying him back if he shall be remanded, and that he will not make any Escape by the Way.

This done, the Officer shall within three Days after Service (if it is within twenty Miles) return the Writ, and bring the Body, and shall then likewise certify the true Caule of the Imprisonment; if above twenty Miles, and less than an Hundred, then within ten Days; if above an Hundred, then within twenty Days; on like Pain as before.

But after the Assizes are proclaimed for the County where the Prisoner is detained, he shall not be removed.

Then if it shall appear to the said Lord Chancellor or Judges, that the Prisoner is detained on a legal Process, Order, or Warrant, out of some Court that hath Jurisdiction of criminal Matters, or by Warrant of a Judge or Justice of the Peace, for Matters for the which by Law he is not bailable, in such Case the Prisoner shall not be discharged.

If he shall be discharged, he shall thereupon enter into Recognizance to appear on his Trial; and the Writ, and Return thereof, and Recognizance, shall be certified into the Court where the Trial must be.

But Persons charged in Debt, or other Action, or with Process in any civil Cause, after their Discharge for a criminal Offence, shall be kept in Custody for such other Suit.





And Persons so set at large shall not be recommitted for the same Offence, unless by Order of Court, on Pain of 500 l. to the Party grieved.

Habeas Corpus cum Causa, to remove the Body and Cause, is granted on Motion to the Judges, and is in the following Form:

Writ of Habeas Corpus, to remove the Cause.

GEORGE the Third, by the Grace of God, of Great-Britain, France, and Ireland, King, Defender of the Faith, &c. To the Sheriff of — County, Greeting. We command you, that you have before us, at our Superior Court for the District of — at — on the — Day of — next, under safe and secure Conduct, the Body of A. B. who is said to be detained in our Prison under your Custody, together with the Day and Cause of his being taken and detained (by whatsoever Name the said A. B. be therein charged) to answer to C. D. of a Plea, or in an Action of Debt, &c. And further to do and receive all and singular those Things which our Court before us shall then and there consider of in this Behalf: And have you then and there this Writ. Witness, &c.

[note]BARRATRY.

A BARRATOR is a common Mover, Exciter, or Maintainer of Suits, Quarrels, or Parties, either in Courts of Record, or in the Country: In Courts, by maliciously stirring up unjust Actions or Suits between other Men; or if a Man, in his own Causes, is a common Oppressor of his Neighbours by such Suits: In the Country, by making Affrays, or being a common Quarreller, Fighter, and Disturber of the Peace; or by taking or keeping Possession, by Force or Fraud, of Lands, Houses, or Goods, in Controversy; or by inventing or spreading abroad false Reports, whereby Differences arise among Neighbours: He is never quiet, but at Variance with one or other. Co. Lit. l. 3. cap. 13. s. 701.

[note]

Suing one in another's Name, is a Species of Barratry: He that procureth a Man to be arrested in the Name of another, where there is no such Person, or without his Consent, upon Conviction by two Witnesses,





shall be imprisoned six Months, without Bail, and pay 10 l. and treble Costs, to the Party grieved. 8 Eliz. cap. 2.

A Feme Covert cannot be indicted of Barratry. Rolls Rep. 2, 39.

Any Justice of Peace, upon Complaint, or at his Discretion, may bind to the Peace, or good Behaviour, such as are common Barrators. Dalt. 38.

[note]

A Warrant against a Barrator.

To A. B. or any other Constable of the County of — and to the Keeper of the common Gaol of the said County.

FOR AS MUCH as it appears to me, C. D. Esq; one of his Majesty's Justices of the Peace for the said County, That E. F. of — Bricklayer, is a common Quarreller, and Disturber of the Peace, whereof he is convicted by my own View: These are, in his Majesty's Name, to command you to cause the said E. F. to come before me, or some other Justice of this County, to find sufficient Security (that is to say) himself in — Pounds, and two Sureties in — Pounds each, for his personal Appearance at the next Court to be held for this County, and to do what shall be then and there enjoined him by the said Court, and in the mean Time to be of good Behaviour. And if he the said E. F. shall refuse so to do, that then you convey him to the common Gaol of this County, and deliver him safely to the Keeper thereof, together with this Precept. And you the said Keeper are hereby required to receive the said E. F. into your Custody, and him safely to keep in your Gaol, until he shall find such Security as aforesaid, or until he be thence delivered by due Course of Law. Herein fail not, at your Peril. Given under my Hand and Seal, this — Day of —

[note]

If the Offender is taken upon this Warrant, and brought before a Justice, he must enter into Recognizance, with two sufficient Sureties, as by the Warrant is required; which Recognizance such Justice is to certify to the same Court, that thereupon the Party may be called, and further Proceedings had; but if he refuses to give Security, he may be committed.





To the Keeper of the common Gaol of the County of —

I SEND you herewith the Body of E. E. taken upon my Warrant, and brought before me, for common Barratry, and other Misdemeanors by him committed against the Peace: And you are hereby required, in his Majesty's Name, to receive the said E. F. into your Custody, and him safely to keep in the common Gaol, until he shall procure two sufficient Persons to be bound with him in a Recognizance to the King's Majesty (that is to say) himself in the Sum of — Pounds, and each of the said Sureties in the Sum of — Pounds, for his personal Appearance at the next Court to be held for this County, and to do what shall be then and there enjoined him by the said Court, and in the mean Time to be of good Behaviour. Given under my Hand and Seal, &c.

[note]

Upon an Information exhibited before a Justice of Peace against any Person for Barratry, such Justice ought to cause the Informers, of whom there must be two at least, to enter into Recognizance for their Appearance at the next Court, viz.

— ss.

MEMORAND. That on this — Day of — H. I. of — and K. L. of — came before me, C. D. Esq; one of his Majesty's Justices of the Peace for the County aforesaid, and personally acknowledged that each of them is indebted to our Sovereign Lord King George The Third, in the Sum of — Pounds; to be levied of their Goods and Chattels, Lands and Tenements, respectively, to the Use of our said Lord the King, his Heirs and Successors; upon Condition, That if they, the said H. I. and K. L. do personally appear before his Majesty's Justices of the Peace, at the next Court to be held for this County, on the — next, and do then and there prefer, or cause to be presered, a Bill of Indictment against E. F. of — for the Matters wherewith he is by them charged before me; and do also then and there give Evidence concerning the same, to the Jurors as shall enquire thereof, on Behalf of our said Lord the King, and upon the Trial of the said E. F. for the same: Then this Recognizance to be void, or else to remain in Eorce.

[note]

Acknowledged before me, C. D.





After such Recognizance taken, the Justice may issue his Warrant against the Offender.

By the Statute of 34 Ed. 3. c. 1. the Justices of the Peace have Power to restrain all Barraters, and to pursue or arrest, take, and chastise them, according to their Trespass or Offence.

[note]

The Crime of Barratry is cognizable in the County Courts, as a Breach of the Peace, and is punishable by Fine and Imprisonment, and bound to good Behaviour; and Mr. Hawkins says, that if he be of any Profession relating to the Law, he ought to be further punished, by being disabled to practise for the future. 1 Haw. 244.

An Indictment for Barratry ought to conclude against the Peace, though it need not be confined to Place, as from the Nature of the Crime it must be supposed to have been committed at several Places. 1 Haw. 244.

Indictment for Barratry.

THE Jurors for our Sovereign Lord the King, upon their Oath, present, that A. B. of — in the said County, Planter, on the — Day of — in the — Year of the Reign, &c. at — in the said County, was, and yet is a common Barrater, and continual Disturber of the Peace of our said Lord the King; and also, on the Day and Year, and at the Place above mentioned, was, and still is, a common and troublesome Slanderer, Railer, and Sower of Discord among his Neighbours; and that he hath procured and caused divers Suits and Quarrels then and there, and elsewhere in the County aforesaid, amongst divers Subjects of our Lord the King, to the great Contempt of our Sovereign Lord the King, and the bad Example of other Offenders, and against the Peace of our said Lord the King, his Crown and Dignity.

[note]BASTARDS.

A BASTARD is he that is born of a single Woman, his Father not being known in Law.

[note]

By the Common Law, every Justice of the Peace has a Right, as Conservator of the Peace, to punish Incontinency, and may apprehend any single Woman having, or being with Child of a Bastard; but as the Acts of





Assembly of this Province impower them to do it, the Process issues under them.

By the Common Law, if the Husband be within the Jurisdiction of England, if the Wife hath Issue, no Proof is to be admitted to prove the Child a Bastard; unless the Husband hath an apparent Impossibility of Procreation, as being under the Years of Procreation. But if the Issue is born within a Month or a Day after the Marriage of Parties of lawful Age, the Child is legitimate. 1 Inst. 244.

A Bastard can have no Name of Reputation as soon as he is born; but afterwards, when he has gained a reputed Name by Time, he may purchase by such Name, to him and his Heirs, though he can have no Heirs but of his Body. 1 Inst. 3. 6. Co. 65.

A Bastard is the first of his Family, for he hath no Relation of which the Law takes any Notice, as to civil Purposes; but as to moral Purposes ’tis otherwise, for he cannot marry his Mother, Sister, or the like. 3 Salk. 66.

If the Issue of a Bastard purchase Land, and die without Issue, the Descent is to the Heirs on the Part of the Mother. So also if he is attainted. Noy 159.

By an Act of Assembly of this Province, any two Justices of the Peace, upon their own Knowledge, or Information made to them, that any single Woman within their County is with Child, or delivered of a Child, may cause such Woman to be brought before them, and examine her, upon Oath, concerning the Father; and if she shall refuse to declare the Father, she shall pay Fifty Shillings, and give Security to keep the Child from becoming chargeable to the Parish, or shall be committed to Gaol, until she shall comply with such Order. But if she shall, upon Oath, charge any Man with being the Father of such Child, he shall stand the reputed Eather, and be chargeable with the Maintenance of such Child as the County Court shall direct; and shall give Security to the Court to perform such Order, and indemnify the Parish from all Charges for the Maintenance of such Child; and may be committed until he shall perform such Order of Court.

[note]

Any two Justices, at their Discretion, may bind any Person over to the County Court, that shall be charged on Oath, by any single Woman, with being the Father of a Child begotten of her Body, and not yet born;





and the Court shall continue such Person upon Security until the Child shall be born.

If any Woman Servant shall have a Bastard Child during her Servitude, she shall, by Order of the County Court, serve her Master one Year, after her Time of Servitude shall be expired.

[note]

And if such Servant Woman shall have a Child begotten by her Master, she shall, immediately after her Delivery, be sold by the Church-Wardens for one Year, and the Money be appropriated to the Use of the Parish. And if such Servant Woman shall have a Child by any Negro, Mulatto, or Indian, she shall be sold for two Years by the Church-Wardens of the Parish, for the Benefit of such Parish, and the Child shall be bound out by the County Court till it shall arrive to the Age of Thirty One Years.

When any two Justices shall know, or be informed, that any single Woman is with Child, or delivered of a Bastard Child, within their County, they may issue their Warrant to bring her before them to answer the Complaint.

Warrant to apprehend a single Woman, being with Child of a Bastard.

— County, ss.

To A. B. Constable, or any sworn Officer of said County.

WHEREAS Information hath been made to us, two of his Majesty's Justices of the Peace for the said County, that A. B. of the Parish of — and County aforesaid, single Woman, is with Child, which Child, when it shall be born, will be a Bastard, and may become chargeable to the Parish: These are therefore to command you, in his Majesty's Name, to apprehend and cause to be brought before us, or any two of his Majesty's Justices of the said County, the aforesaid A. B. to answer the Matter alledged against her as aforesaid. For which this shall be your Warrant. Given under our Hands and Seals, this — Day of — Anno Dom. 1774.

[note]

When the Woman appears before the Magistrates, if she refuse to tell the Father of the Child, she is to pay the Fines, and give Security to keep it from being chargeable to the Parish; but if she declare the Father, the Justices take her Examination in the Form following:





The Examination of a Woman with Child of a Bastard.

— County, ss.

THE Examination of A. B. of — in the County aforesaid, single Woman, taken on Oath before us, C. D. and E. F. two of his Majesty's Justices of the Peace for the said County, this — Day of —.

[note]

Who sayeth, that she is now with Child, and that the said Child is likely to be born a Bastard, and to be chargeable to the Parish of — in this County; and that G. H. of — in the said County, Planter, is the Father of the said Child.

Signed with the Woman's Name.

Taken before us, and signed the Day and Year above-written.

C. D.

E. F.

Upon this Declaration, the Justices issue their Warrant against the Father of the Child.

Warrant against the reputed Father of a Bastard Child.

— County, ss.

To A. B. Constable, or any lawful Officer of said County.

WHEREAS upon the Examination of A. B. single Woman, this Day taken on Oath, before us, it appears, that she is now with Child, which Child, when it shall be born, will be a Bastard, and may become chargeable to the Parish of — in this County. And the said A. B. hath confessed, that C. D. of the Parish and County aforesaid, Planter, did beget the said Child, and hath charged him with the same. These are therefore, in his Majesty's Name, to command you to apprehend the said C. D. and bring him before us, or any two of his Majesty's Justices of the Peace of the said County, to answer the said Charge. Given under our Hands and Seals, this — Day of — 1774.

[note]

When the Party is taken, and appears upon this Warrant before the Justices, he must enter into Recognizance, with Sureties, for his Appearance at the next County Court; and may be continued from Court to Court, till the Child is born.

The Recognizance may be in the common Form, with this Condition.





THE Condition of this Recognizance is such. That whereas the above-bound C. D. is charged by A. B. of — single Woman, that he had carnal Knowledge of her Body, and that she the said A. B. is now with Child by him the said C. D. which Child, when born, will be a Bastard. If therefore the said C. D. shall personally appear before his Majesty's Justices of the Peace, at the next Court to be held for the aforesaid County on the — Day of — next, then and there to abide by and perform what shall then be enjoined him by the said Court, concerning the Premises, then this Obligation to be void, else to remain in Force.

If he refuses to give Security, he may be committed.

Mittimus.

— County, ss.

To the Sheriff, or Keeper of the Gaol of the County aforesaid.

WE herewith send you the Body of C. D. late of the Parish of — in this County, Planter, who was this Day brought before us G. H. and I. K. two of his Majesty's Justices of the Peace of the said County, being charged by A. B. single Woman, to have gotten her with Child, which Child, when born, will be a Bastard; and the said C. D. having before us refused to find Security for his Appearance at the next Court to be held for this County, to answer the said Charge: You are therefore, in his Majesty's Name, commanded to receive into your Custody the said C. D. and him safely to keep in the common Gaol, until he shall be thence discharged by due Course of Law. Given under our Hands and Seals, this — Day of — 1774.

After the Child is born, the same Proceedings are to be had to compell the Appearance of the Persons before the Justices, who are to be dealt with in the same Manner as before the Birth, only varying the Precepts.

When the reputed Father of the Child appears before the County Court, after the Child is born, he is to give the following Bond to the Justices.





Bond to be given to the Court, for indemnifying the Parish from the Maintenance of a Bastard.

KNOW all Men, by these Presents, That we A. B. and C. D. of — are held and firmly bound unto the Justices of the County of — in the just and full Sum of — Proclamation Money. To which Payment well and truly to be made, to the said Justices and their Successors, we bind ourselves, and each of us, our, and each of our Heirs, Executors, and Administrators, jointly and severally, by these Presents. Witness our Hands and Seals, this — Day of — 1774.

[note]

THE Condition of this Obligation is such, That whereas E. F. of the Parish of — in the County aforesaid, single Woman, hath lately been delivered of a Bastard Child, within the aforesaid Parish, of which Child the above bounden A. B. stands charged according to Law to be the reputed Father. If therefore the said A. B. his Heirs, Executors, or Administrators, or any of them, do and shall from Time to Time, and at all Times hereafter, acquit, discharge, and save harmless, the Church-Wardens and Parishioners of the Parish of — in the aforesaid County of — from all Costs, Charges, and Troubles whatsoever, for or by Reason of the Birth, Maintenance, and bringing up the said Child, and of and from all other Suits, Charges, and Demands whatsoever, touching or concerning the same; then this Obligation to be void, otherwise to remain in full Force.

[note]

The Constable or other Officer, having a Warrant to apprehend the reputed Father of a Bastard Child, and willingly or negligently suffering him to escape, may be bound over to Court, and ordered to contribute to the Maintenance of the Child, or may be fined for a Misdemeanor. So may any other Person who shall persuade, or convey away, the reputed Father, or assist him to escape. Dalt. 39.

If a Woman delivered of a Bastard Child born alive, shall endeavour to conceal the Death of such Child, by drowning, private Burial, or otherwise, she shall upon Conviction suffer Death as in Case of Murder.

Upon Information made to any Justice of the Peace, or where he has Reason to believe any Woman hath been delivered of a Bastard Child, and the Death of it





hath been concealed, he may issue his Warrant to apprehend her, and bring her before him, in order to inquire into the Matter.

Warrant to apprehend a Woman on Suspicion of having made away with her Bastard Child.

— County, ss.

To A. B. or any other Constable or lawful Officer of the said County.

WHEREAS I am credibly informed, that C. D. of the Parish of — in this County, Spinster, hath been delivered of a Bastard Child, born alive of her Body, and is suspected to have murdered, or made away with the said Child since the Birth thereof.

[note]

These are therefore, in his Majesty's Name, to require and command you to apprehend the said C. D. and bring her before me, or any other Magistrate of the said County, to be examined concerning the Premises: And you are also to make diligent Search by all lawful Means, to find out the Truth, and to bring before me, or some other Justice of the said County, all such Persons as can give any Information on Behalf of his Majesty touching the Premises. Herein fail not at your Peril. Given under my Hand, this — Day of — 1774.

If she confess the Fact, or there is Reason to believe she is guilty, she is to be committed to the Gaol of the District wherein the Fact was committed, in order to be tried at the next Superior Court, and the Witnesses bound over to prosecute in the same Manner as for Murder, or any other Felony.

Mittimus for a Woman for murdering her Bastard Child.

— County, ss.

To the Keeper of the Public Gaol of the District of —

I HEREWITH send you the Body of A. B. late of the Parish of — in the said County, Spinster, taken and brought before me on Suspicion of having murdered her Bastard Child, wherewith she stands charged. Her you are to safe keep in your Gaol, without Bail or Mainprize, until she shall be thence discharged by due Course of Law. Given under my Hand, this — Day of — 1774.

[note]



BEHAVIOUR.

AS the good Behaviour includeth the Peace, I have therefore placed it under this Head.

[note]

Surety for the good Behaviour is most commonly granted in open Court, or by two or three Justices out of Sessions, at the Suit of divers Persons, being Men of Credit, and to provide for the Safety of many: Whereas Surety of the Peace is usually granted by one Justice out of Sessions, at the Request of one Person, and for Preservation of the Peace, chiefly towards one. Dalt. 291.

[note]

But it may be granted by one Justice, at the Instance of one Person, to prevent some great and sudden Danger, or for some public Misdemeanor: Yet it is good Discretion in Justices of Peace not to grant it out of Sessions, but either upon sufficient Cause appearing to themselves, or upon Complaint of divers honest and credible Persons, especially against a Man of good Estate, Carriage, or Report. Ibid.

A Justice of Peace, upon his own Discretion, and without Complaint, may bind to the good Behaviour any Person, who, in his Presence or Hearing, shall misbehave himself in some outrageous Manner of Force or Fraud; and may commit such Person to Gaol, if he refuses to be bound. Dalt. 292.

If a Man make an Affray, or assault another, in Presence of a Justice, who thereupon commands him to keep the Peace, and he answers that he will not, he may be bound to the good Behaviour; and if he refuses, committed. Dalt. 294.

The good Behaviour is not to be granted upon a general Accusation, but some special Matter must be expressed, for which the Party ought to be bound: For a general Accusation is no Accusation, for the Incertainty of it, and the Party cannot tell what Answer to make to such a general Accusation. Style 324.

If a Man do affront any Court of Justice, this is good Cause to bind the Party to his good Behaviour: For the affronting of Justice is a public Misdemeanor, and not a private, although it be done but to the Person of one Man; as to the Judge of a Court, or a Justice of Peace, in the Execution of his Office; because such Persons are public Ministers of Justice, and act for the Commonwealth. Ibid.





A Woman that is a common Scold may be bound to the good Behaviour, for she is a common Disturber of the Peace.

One was bound to his good Behaviour for affrighting People in the Night, in their Houses, by shooting of Muskets, and for the assaulting of one, going in the Highway: For this was accounted more than a particular Breach of the Peace.

The good Behaviour was granted against one, upon an Article sworn against him, that he had maliciously pulled down a Piece of another's House: For this is a riotous Act, and a high Breach of the Peace, which concerns the Public.

One was bound to his good Behaviour for stopping a Constable from making Pursuit after a Felon: For this is a public Offence against the Commonwealth.

The good Behaviour is not to be granted against one for speaking of Words only against one Person, but it may be granted against one for speaking Words against divers Persons at several Times: For this is a general Misbehaviour, the other is but particular.

The good Behaviour was granted against one upon an Article sworn against him, that he said he would burn down another Man's House: For a Man shall be judged, in many Cases, by his Words, though no Actions accompany them. Style 325.

Persons who are of evil Fame, or common Disturbers of the Peace; those who are accused, or guilty, of any of the Offences hereunder specified, may be required by one Justice to enter into Recognizance, with Sureties or without, at the Discretion of the Justice, to be of the good Behaviour; and upon Refusal may be committed.

[note]

Bastardy.The reputed Fathers of such Bastard Children as are likely to become chargeable to the Parish.
Barratry.—Common Barrators.
Bawdry,Those who frequent Bawdy Houses, and the People who keep such Houses; likewise Whoremongers, and common Whores: For ’tis a temporal Offence, and against the Peace of the Government.
Felons,Acquitted of Felony, or convicted and pardoned, if the Person be of evil Fame; but this is discretionary.





Gaming.Such who frequent Gaming Houses; those who game, and have no Estates to support themselves; all Cheaters and Cozeners, by Cards, Dice, false Letters, or any other Games whatever.
Hue and Cry.—Those who raise it without Cause.
Idle Persons,Living well, and having no Estates or Callings to support themselves.
Justices of Peace.Those who misbehave themselves before him, or before any other Officer, in the Execution of Justice; those who speak contemptible Words of him, or abuse his Warrants; those who delude his Authority, by Complaints, without Prosecution.
Libels.Those who contrive, procure, or publish, scandalous Letters or Libels, whether true or false, either against Persons living or dead, by Writings, Words, Pictures, or any other Signs of Reproach.
Misbehaviour,Of any Kind whatsoever. This must be left to the Discretion of the Justice, it being a general Word.
Murderers and Manslayers.Such who are likely to commit either of these Offences.
Night Walkers.Those who are suspected to steal any Thing in the Night, or to commit any Misdemeanor against the Person or Goods of another.
Peace.Those who break it in any Manner whatsoever.
Poison.Mingling it with Corn, and giving it to Poultry; or attempting to destroy the Person or Beasts of another.
Repute.—Those of a bad Report or Name.
Riot.Those who continue in the very Act. But if the Riot is over, then the Inquiry must be by Jury.
Robbery.Those who lie in Wait, or attempt to rob another.
Suspicion.Persons suspected to lie in Wait to rob, or commit any Felony or Burglary.





A Warrant for the good Behaviour.

— County, ss.

To A. B. or any other Constable of the said County.

WHEREAS I am credibly informed that C. D. of — is a Person of lewd Life and Conversation (here express his Offence) and common Disturber of the Peace: These are, in his Majesty's Name, to command you to bring the said C. D. before me, or some other Justice of this County, to answer unto such Matters as shall be objected against him, by E. F. of — G. H. of — and I. K. of — and also that you require him the said C. D. to bring sufficient Sureties for his Appearance at the next Court to be held for this County, and in the mean Time to be of the good Behaviour. Given under my Hand, &c.

[note]

Upon this Warrant the Officer may break open an House to take the Party. Nels. 90.

This Warrant may be issued by one Justice, at the Request of several credible Persons, and to prevent some great or sudden Mischief: But for any general Misbehaviour, the Parties grieved ought to apply themselves to the County Court, by Petition.

When the Offender is taken, and brought before the Justice, he may, if he see Cause, order the Party to enter into Recognizance, with or without Sureties, at the Discretion of the Justice.

Recognizance for the good Behaviour.

MEMORAND. That on this — Day of — C. D. of — L. M. of — and N. O. of — personally came before me, W. D. Esq; one of his Majesty's Justices of the Peace of the County of — and acknowledged themselves indebted to our Sovereign Lord King George the Third, viz. the said C. D. in the Sum of — Pounds, and the said L. M. and N. O. each in the Sum of — Pounds; to be levied of their Goods and Chattels, Lands and Tenements, respectively, to the Use of our said Lord the King, his Heirs and Successors; upon Condition, That if the above bounden C. D. shall personally appear at the next Court to be held for the said County of — to do and receive what shall be then and there enjoined him by the said Court, and that he do not depart without Leave of the said Court, and that in the mean Time to be of the good Behaviour: Then this Recognizance to be void, or else to remain in Force.

[note]

Acknowledged before me, W. D.





The Justice must certify this Recognizance to the next Court, on Penalty of 10 l. and if the Party doth not appear, the Recognizance is forfeited, and may be put in Suit. Dalt. 190.

But if the Offender refuses to enter into Recognizance, or to find Sureties, being required so to do by the Justice or Justices, he may be committed.

To the Sheriff of — County, or the Keeper of the Gaol of said County.

I SEND you herewith the Body of C. D. Wheelwright, taken upon my Warrant, and brought before me, for his being a Person of lewd Life and Conversation, and a common Disturber of the Peace (here certify the Offence) wherewith he is charged; and he having refused to find sufficient Sureties for his Appearance at the next Court to be held for this County, and in the mean Time to be of the good Behaviour: I therefore command you, in his Majesty's Name, to receive the said C. D. into your Custody, and him safely to keep in the common Gaol, until he shall give such Security (that is to say) himself in — Pounds, and his two Sureties in — Pounds each, for his Appearance and good Behaviour as aforesaid, or until he shall be discharged by due Course of Law. Given under my Hand and Seal, &c.

[note]

Surety of the Peace may be demanded by the Justice of Persons guilty of Breach of the Peace, in any Manner whatsoever, by Affrays, Assault, Battery, Fighting, Quarrelling, Riot, Threatening to kill, wound, or beat another, &c. Nels. 92.

A Justice of Peace may require a Bond, or Recognizance, with a great Penalty, of a Person, for his keeping the Peace, if such Justice see Cause for it, in Regard that the Party to be bound is a dangerous Person, and likely to break the Peace, and to do much Mischief: For there cannot be too much Caution used, in preventing the Breach of the Peace in such Cases. Style 388.

But Surety of the Peace is generally granted by the Justice, at the Instance of the Party requiring the same: And before he grants it, he is to administer an Oath to such Party, viz.

[note]



YOU shall swear, That you are in Fear of your Life, or of some bodily Hurt to be done, or to be procured to be done you, by C. D. of the Parish of — in the County of — Wheelwright; and that you do not require the Peace of him for any Malice, Vexation, or Revenge, but for the Causes aforesaid.

[note]

So help you God.

This being done, the Justice may issue his Warrant to cause the Offender to be brought before him, and to find Surety.

To A. B. or any other Constable of — County, and to the Keeper of the common Gaol of the said County.

WHEREAS E. F. of — Planter, hath this present Day made Oath before me, W. D. Esq; one of his Majesty's Justices of the Peace of the said County, that he is afraid that C. D. of — will beat, wound, maim, or kill him (or, as the Case is) and hath therefore prayed Security of the Peace against him: These are therefore, in his Majesty's Name, to command you to cause the said C. D. to come before me, or some other Justice of this County, to find sufficient Security for his personal Appearance at the next Court to be held for this County, then and there to abide, and to do what shall be enjoined him by the said Court; as also, in the mean Time, to keep the Peace, especially towards the said E. F. and if the said C. D. shall refuse so to do, that then you convey him to the Gaol aforesaid, and deliver him safely to the Keeper thereof. And you, the said Keeper, are also hereby commanded to receive the said C. D. into your Custody, and him safely to keep in the common Gaol, until he shall find such Security as aforesaid, or until he be otherwise discharged by due Course of Law. Given under my Hand and Seal, &c.

[note]

If this Warrant is directed to a sworn Officer, he need not shew it to the Party; but he ought to tell him the Contents, or to acquaint the Persons in the House therewith, and require the Doors to be opened: And upon Refusal of the Party to surrender himself, the Officer may break open the Doors to take him. Dalt. 404.

And if the Party is taken, and brought before the Justice, he must enter into Recognizance, with Sureties or without, at the Discretion of the Justice, as before directed, for the good Behaviour.





Recognizance for the Peace.

— County, ss.

BE it remembered, that on the — Day of — in the — Year of the Reign of our Sovereign Lord George the Third, by the Grace of God, of Great-Britain, France, and Ireland, King, Defender of the Faith, &c. A. B. of — County aforesaid, Planter, C. D. and E. F. of the same Place, Planters, came before me, G. H. Esq; one of his Majesty's Justices of the Peace of the said County, and acknowledged themselves to be severally indebted to our said Lord the King, his Heirs and Successors, that is to say, the said A. B. in the Sum of — Pounds, and the said C. D. and E. F. in the Sum of — Pounds each; to be levied on their several Goods and Chattels, Lands and Tenements, to the Use of our said Lord the King; on Condition, that the abovesaid A. B. shall make his personal Appearance at the next Court to be held for the said County on the — Day of — next, to do and receive what shall be then and there enjoined him by the said Court; and in the mean Time that he keep the Peace towards the King and his leige People, but more especially towards I. K. of — in the said County.

[note]

The Sums wherein the Party and his Sureties are to be bound, may be lessened or increased, as the Circumstances of the Case require; so likewise, if the Party shall be bound with Sureties or without: All which lies in the Discretion of the Justice of Peace, and ought to be accordingly expressed in the Mittimus.

Surety of the Peace is grantable against a Feme Covert or Infant, but they are not to be bound, only their Sureties; and if they cannot find any, they must be committed.

’Tis also grantable to the Husband against his Wife, or to the Wife against her Husband.

So likewise against a Lunatick or Madman, having lucid Intervals, or Returns of Sense and Reason; and also against a lame or or impotent Person, for he may procure another to do Mischief.

And in all these Cases, if the Offender refuses to give Bail, when required, he or she may be commited. Dalt. 268.

An Infant, under the Age of Fourteen Years, may demand this Surety, and it shall be granted him. Dalt. 269.





But Surety of the Peace, without great and apparent Cause, is not to be granted for or against Persons blind, deaf, dumb, or those who are not of sound Sense and Memory; yet if there be Cause, the Justice of Peace, in his Discretion, ought to provide for their Safety. Ib.

Neither is Surety of the Peace grantable by Justices against the Person of a Peer, or a Counsellor, or a Sheriff; but the Party grieved may have Remedy, by Subpœna in Chancery.

This Surety may be commanded by Justices, either,

1. By Word only, the Offender being in his Presence; as if he then threaten or assault another, or doth any Thing tending to the Breach of the Peace, or for any other Misbehaviour in View of the Justice; or if Surety be prayed by any Man against another, then in Presence of the Justice, and the Party praying Surety will be sworn, that he is affraid of him: In such Cases the Justice may, by Word only, command the Constable, or any other Officer, or his own Servant, being then present, to arrest the Offender, and require him to find Sureties for the Peace; and, on Refusal, may commit him. Dalt. 271.

[note]

2. By Warrant or Precept, in Writing, under his Hand and Seal, if the Party be absent, directed to some Officer, or other indifferent Person, and containing the Cause, and at whose Suit, that the Party may provide Sureties, and take them with him.

The Constable or Officer, before he arrest the Party, ought to acquaint him with the Matter of the Warrant, and require him, in the King's Name, to go before a Justice, and find Sureties: If he refuses, the Officer must immediately arrest him, and carry him before a Justice, or convey him to Gaol, there to remain until he give Security, according to the Command of the Warrant: And thereupon the Officer must make Return of his Warrant, by certifying how he has executed the same, to the Justice, or Court, before whom the Party was, by such Warrant, bound to appear.

[note]

If the Party will find Sureties, the Officer may not absolutely arrest him, but may keep him till he can procure Sureties to come to him: But if he make Resistance, or endeavour to escape, the Officer may carry him to Gaol, or secure him, till he can provide a Guard,





When the Offender is taken, and brought before a Justice of Peace, if he then refuse to give Security, the Officer, without further Warrant, may commit him to Prison, by Force of the first Warrant, if he refuse so to do, &c.

If the Party refusing to find Sureties is arrested, but not brought before a Justice, nor committed to Gaol, the Officer may be indicted and fined; and the Party may have an Action of false Imprisonment against the Officer: For he hath not pursued the Effect of his Warrant. Dalt. 272.

Upon a general Warrant, to cause any Man to appear before one, or any other Justice of Peace, to find Sureties, &c. it is in the Election of the Officer to carry the Party attached before any Justice, at his Discretion: For the Officer is the Minister of Justice, and the Law presumes that he is a Person indifferent, and sworn to execute his Office.

[note]

Every Justice of Peace, before whom the Party attached shall come, and tender such Security as by the Warrant is required, ought to admit the Party to Bail, and bind him and his Sureties in a Recognizance, upon Condition expressed in the Warrant whereupon such Party was taken; and then, upon Request of the Party, may grant a Supersedeas to discharge him from other Arrest for the same Cause.

[note]

The Form of a Supersedeas.

— County, ss.

To all Sheriffs, Constables, and other his Majesty's Officers, within the County of — and to every of them.

WHEREAS C. D. of — Wheelwright, hath personally come before me, W. D. Esq; one of his Majesty's Justices of the Peace of the said County, and hath entered into Recognizance, with sufficient Sureties (that is to say) himself in — Pounds, and L. M. of — and N. O. of — in — Pounds each; upon Condition, That be the said C. D. shall personally appear before his Majesty's Justices of the Peace at the next Court to be held for this County, and in the mean Time shall keep the Peace towards his said Majesty, and all his People, but more especially towards E. F. of — Planter: Therefore, on the Behalf of his said Majesty, I command you, and every of you, to forbear to arrest, imprison, or





otherwise molest, the said C. D. for or by Reason of the said Occasion, and no other; and if he shall be already taken or imprisoned for the same, that then you forthwith discharge and set him at Liberty; for which this shall be your Warrant. Given under my Hand and Seal, &c.

[note]

This Writ of Supersedeas is grantable by any one Justice of the Peace, by Virtue of his Office: And every Officer to whom the same shall be produced, is bound to yield due Obedience thereto, or he may be liable to an Action of false Imprisonment, at the Suit of the Party grieved.

[note]

Every Recognizance taken by a Justice, for Surety of the Peace or good Behaviour, must be by him certified to that Court before whom the Party is bound to appear, that it may be by the Clerk entered upon Record; and if forfeited, Process may thereupon issue against the Party and his Sureties: If the Justice neglects to certify it, he forfeits 10 l. Dalt.

[note]

The Party bound forfeits his Recognizance if he fails to appear at the Day and Place in the Condition limited, or departs thence without Leave of the Court; as also, by doing any Thing which may tend to the Breach of the Peace, or procuring such Act to be done; as by appearing a Party in an Affray, or unusually armed, or assaulting another, or threatening either the Witnesses or the Person at whose Suit he is bound; or by imprisoning another without Warrant, &c. And if he break his Recognizance, ’tis a new Offence; for which he may be indicted, fined, and imprisoned.

[note]

But Defence of a Man's Person, Family, House, or Goods, or taking Goods wrongfully, but not from the Person of another; or an Offence, in the Execution of his Office, striking any Man; or threateng to beat some absent Person; or Trespasses in Corn, &c. shall not be a Forfeiture of Recognizance. Nels. 93.

If the Cause be removed by Certiorari into the Superior Court, before the Justice hath certified the Recognizance to the Clerk of the County Court, then the Party bound need not to appear at such County Court; but the Recognizance, together with the Record of the whole Cause, is by the Justice to be certified, as in the Writ of Certiorari shall be commanded; and the Party bound, shall make his Appearance at the Day and Place by such Writ required. Nels. Dalt. 278.





Upon Appearance of the Party bound in Court, if the Peace be required towards a particular Person, as well as generally towards all the King's People, then the Party may be continued upon his Recognizance for Half a Year, or more, if the Court shall see Cause: But if it be not at the Instance of a particular Man, and no Body appear against the Party, he may be discharged.

If the Justice of Peace shall not certify the Recognizance, yet the Party bound ought to appear in Court, and pray that his Appearance may be recorded. Dalt. 279.

If the Party bound is so sick that he cannot travel, or is imprisoned for some other Cause, or is hindered by Tempest or Innundation of Waters, so that he cannot appear; upon Proof of such Sickness or Inability, by Oath of Witnesses in open Court, he may be continued upon his Recognizance till the next succeeding Court. Ibid.

The Recognizance may be discharged, in Part, by a Release thereof: If ’tis taken at the Suit of a particular Person, he alone may release it before the Day of Appearance, by coming before the Justice of Peace, and acknowledging such Release; which is to be certified by such Justice, together with the Recognizance.

[note]

Release to be written under the Condition of the Recognizance.

MEMORAND. The aforesaid E. F. personally came before me, W. D. Esq; this — Day of — and did, as much as in him lay, freely release the said Security of the Peace formerly desired by him, as abovementioned, against the above bounden C. D. Witness my Hand and Seal. W. D.

[note]

But though this Release is certified as it ought to be, yet it doth not discharge the Appearance of the Party; because he is bound to the King, and likewise to appear, as well as to keep the Peace, which cannot be discharged by the Release of the Party, and therefore he ought to appear at the next Court.

A Recognizance may also be discharged by the Death of the King, or by Death of the principal Party bound, but not by the Death of their Sureties; for if ’tis forfeited, their Executors are liable: And notwithstanding





the Death of the King, or of the Party bound, yet the Recognizance must be certified. Nels. 94.

BIGAMY.

IS a double Marriage, or the Marriage of two or more Wives or Husbands, the first being then living.

[note]

’Tis prohibited by the Statute 1 Jac. 1. by which ’tis made Felony to marry a second Husband or Wife, the first being living.

But this Statute doth not extend to the Cases here under-mentioned; as,

1. Not to a Person whose Husband or Wife is beyond Sea.

2. Not to such who shall be absent from one another the Space of seven Years, and the one not knowing the other to be living.

3. Nor to such whose Marriage is, by Sentence of the Ecclesiastical, or other Supreme Court of Judicature, declared void, and the Parties declared capable to marry any other.

4. Nor to those who have married within the Years of Consent, viz. the Man under 14, and the Woman under 12 Years of Age, who afterwards disagree to that Marriage.

Upon Information made, before a Justice of Peace, against any Person for this Offence, he may issue his Warrant to cause the Party to come before him, and then proceed as in other Felonies. See Tit. Criminals.

The Offender has Clergy, and may be bailed by two Justices, and after Examination; but the Party ought to find very sufficient Sureties, and be bound in a considerable Sum.

On a Prosecution upon this Statute, the first and true Wife is not to be admitted as a Witness against her Husband; but the second Wife may be admitted to prove the second Marriage, as she is not in Fact his Wife. 1 H. H. 693.





BILLS OF EXCHANGE.

ALTHOUGH nothing under this Head comes within the Jurisdiction of a Justice of the Peace out of Court, yet it is thought not foreign to our Purpose to give some Information of the Laws that govern Bills of Exchange, and particularly how they are regulated by our own Acts of Assembly.

[note]

A Bill of Exchange is a Security among Merchants, given for Money, and by the Credit of the Drawer passeth as such. They are drawn at Sight, or in so many Days or Months. An outland or foreign Bill being refused to be accepted, by the Law of Merchants, Action lies against the Drawer; and if the Person to whom it is directed subscribes the Bill, it is Assumpsit to pay it. 1 Rol. Abr. 6. 1 Ventr. 152.

Every Indorsor of a Bill is liable as the first Drawer; as the Indorsement is in the Nature of a new Bill. But by the Custom of Merchants, the Indorsee is to receive the Money of the first Drawer, if he can; otherwise the Indorsor is answerable. The Indorsor of a Bill is not liable, till Endeavour has been used to find the Drawer. Salk. 126.

An Indorsor is not discharged without actual Payment of the Bill, unless there be Neglect in the Indorsee; as where he doth not endeavour to receive the Money in convenient Time, and then the first Drawer becomes insolvent. Ibid 132.

Where a Bill is drawn payable to A. B. or Bearer, an Assignee must sue in the Name of him to whom it is made payable; otherwise, a Stranger finding the Bill, might recover. 3 Salk. 67.

The Acceptance of a Bill, although after payable, is binding on the Party accepting, and Action lies thereon; the Effect of the Bill being Payment of the Money, and not the Day of Payment. carth Reports, 460.

A Bill once accepted may not be revoked by the Acceptor, though before it becomes due, he hath Advice that the Drawer is broke. Lex. Mer. 265.

If a Bill be accepted, and the Acceptor die before Payment, Demand must be made of his Executors or Administrators; and on non-Payment, a Protest is to be made, altho’ the Money becomes due before there can be Administration, Lex. Mer.





By an Act or Assembly of this Province, for ascertaining the Damage upon protested Bills of Exchange, where any Bill shall be drawn for Value received, and shall be protested for non-Acceptance or non-Payment, it shall carry Interest from the Date, at the Rate of ten per Cent. till paid.

[note]

But not more than Eighteen Months Interest is to be allowed on any Bill, till it shall be presented protested to the Drawer or Indorser.

Every protested Bill, as a Satisfaction to the Drawer, for his Loss and Damages, shall carry an Interest of fifteen per Cent. with Costs of Protest.

Action lies against the Drawer and Indorser, jointly, or separately, at the Election of the Plaintiff, for Principal, Interest, and Costs; and Judgment may be given for the same, at the Rate of ten per Cent. per Annum, to the Time of the Judgment.

When a Bill of Exchange is drawn in Favour of any Person, upon Receipt of it, he presents it to the Person on whom it is drawn for Payment. If he protests it, the Possessor must carry it to a Notary Public, in order to have it protested; which, when done, intitles him to an Action upon our Act of Assembly, for the Principal, Interest, and Costs.

Form of a Protest of a Bill of Exchange.

KNOW all Men, by these Presents, That I, A. B. Notary Public, duly admitted, and sworn, on the — Day of — at the usual Place of Abode of C. D. of — have demanded Payment of the Bill of Exchange of which the above is a true Copy, and which Bill the abovesaid C. D. did not pay. Wherefore I, the said Notary, do, by these Presents, protest the said Bill. In Testimony whereof, I have hereunto set my Hand, and affixed my Seal of Office, this — Day of —

[note]

This Protest must be annexed to the original Bill.

Form of a Bill of Exchange.

250 l. Sterl.

AT — Days Sight of this my first of Exchange, my second and third of the same Tenor and Date not paid, pay unto — or Order, the Sum of — for Value of him received; and place the same, as per Advice, to Account of your humble Servant.

[note]



Bills that are negotiable beyond Sea are liable to Accident, and therefore ’tis usual to send three; one of which being paid, the others are void.

BLASPHEMY.

ALL Blasphemies against God, as denying his Being and Providence; and all contumelious Reproaches of Jesus Christ; all profane Scoffing at the Holy Scriptures, or exposing any Part of them to Contempt or Ridicule; Impostures in Religion, as falsely pretending to extraordinary Commissions from God, and terrifying or abusing the People with false Denunciations of Judgments; and all open Lewdness openly scandalous, are punishable by Fine and Imprisonment, and also such corporal Punishment as the Court shall order, according to the Heinousness of the Crime. 1 H. 6, 7.

[note]

Seditious Words, derogatory to the established Religion, are indictable, as a Breach of the Peace. 1 H. 7.

No Person who shall deny the Doctrine of the blessed Trinity, as set forth in the 39 Articles, shall have any Benefit of the Toleration Act. 1 W. sess. 1. c. 18. s. 17.

If any Person having been bred in the Christian Religion, shall, by writing, printing, teaching, or advised speaking, deny any one of the Persons in the Holy Trinity to be God; or shall assert or maintain there are more Gods than one; or shall deny the Christian Religion to be true, or the Holy Scriptures to be of divine Authority; and shall be convicted thereof in any of the Courts of this Province, on the Oaths of two Witnesses, he shall, for the first Offence, be incapable of holding any Office ecclesiastical, civil, or military, within this Province (unless he shall in the Court where convicted renounce such Opinion within four Months after Conviction) and for the second Offence, he shall be disabled to be Plaintiff, Guardian, Executor, or Administrator, or to take any Gift or Legacy, or to bear any Office; and shall be imprisoned for three Years. 9 & 10 W. c. 32.

[note]



Informations on this Statute to be within four Days after the Words spoken, and Prosecutions within three Months after Information.

On Information to a Justice of Peace of blasphemous Words spoken, he is to take the Evidence of the Informers, on Oath, and certify the same to the Attorney General, who is to issue Process against the Offenders.

BOATS AND CANOES.

BY an Act of Assembly of this Province, if any Berson shall take away from any Landing, or other Place, any Boat, Canoe, or Pettiauger, belonging to, or in the Custody of any Person, without Leave, or shall loose, unmoor, or turn adrift, any such Boat, Canoe, or Pettiauger, such Offender shall forfeit and pay 20s. recoverable before a Magistrate, who may give Judgment, and award Execution thereon. And such Offender shall be moreover liable to an Action for any Damage that the Owner of such Boat, Canoe, or Pettiauger, may sustain, by Reason of such Vessel being taken away as aforesaid.

[note]

If any Servant or Slave shall, without Leave, take away any such Boat, Canoe, or Pettiauger, and the Master or Mistress of such Servant or Slave shall refuse to pay the Fine, such Servant or Slave shall suffer Correction by Whipping, at the Discretion of the Justice, not exceeding thirty nine Lashes.

Master, Mistress, or Overseer, of any Servant or Slave, belonging to, or in the Care of them, ordering such Servant or Slave to take away any Boat, Canoe, or Pettiauger, from any Landing, liable to the aforesaid Penalty of Twenty Shillings, recoverable as aforesaid.

On Complaint to any Magistrate for an Offence against this Act, he must issue his Warrant to apprehend the Offender, and have him brought before him; and the Proceedings may be as on other Warrants for Debt.





Warrant to apprehend a Person taking away from a Landing a Boat, Canoe, or Pettiauger.

— County, ss.

To A. B. Constable, or any other lawful Officer of said County.

WHEREAS Complaint hath been this Day made before me C. D. Esq; one of his Majesty's Justices of the said County, that E. F. of the said County, Planter, did, on the — Day of — take away from my Landing [here insert the Place] without Leave, a Boat [Canoe, or Pettiauger] belonging to me, contrary to the Act of Assembly in that Case made and provided. These are therefore, in his Majesty's Name, to require you to apprehend the said C. D. and bring him before me, or any other Magistrate, to be dealt with as the Law directs. Given under my Hand, this — Day of — 1774.

[note]BUGGERY.

THIS is an Offence against the Law of God, and the Order of Nature, committed by Mankind with Mankind, or Beasts, or by Women with Beasts. 3 Inst. 59.

[note]

By the Statute, 25 Hen. 8. cap. 6. revived, 5 Eliz. cap. 17. it is Enacted, ‘If any Person shall commit the detestable Sin of Buggery with Mankind, or Beast, and be thereof convicted, such Person shall suffer Death, as a Felon, and be excluded all Benefit of Clergy.’

[note]

The Party consenting to the Fact, is guilty of Felony, as well as the Party committing the Fact; unless the Party consenting, is within the Age of Discretion, viz. the Man under Fourteen, or the Woman under Twelve; and then ’tis not Felony in them.

Upon Information made before a Justice of Peace against any Person for this Offence, he may issue his Warrant to apprehend the Offender, and thereupon proceed, as in other Felonies. See Tit. Criminals.

The Offender ought not to be bailed, but upon great Discretion, by Two or Three Justices, who must be present, and take the Examinations, in Writing; and then may admit the Party accused to be bail'd, if it stand indifferent whether he is guilty of the Fact, or not.





BURGLARY.

IS a breaking and entering of a Mansion-House in the Night Time, with an Intent to kill or steal, though none be killed, nor any Thing stolen. Moor. 660.

[note]

But an Infant under Fourteen, a natural Fool, or Person Non Compos Mentis, or a very poor Person, who shall enter a House (being compelled by Hunger) are not Burglars. Dalt. 362.

Upon this Definition it may be considered,

1. What is a Breaking, and where Burglary may be committed without an actual Breaking.

[note]

2. What is an Entry, and where Burglary may be done without an actual Entry by the Person himself.

3. What the Law esteems a Mansion-House, and what Places make the Offence.

4. The Time.

5. The Intention of the Party.

1. The entering of an House, the Doors being open, is a Breaking in Law; yet ’tis not Burglary, unless the Door, Window, or Wall, are broken, or the Latch drawn, or a Lock broken, or Door unlocked. If a Man comes into an House, enters into a Chamber, and there breaks open a Trunk, and steals, this is no Burglary, because the Trunk is no Part of the House; but if he break open the Chamber Door, or any Door of a Cupboard, &c. which is fixed to the Freehold, this is an actual Breaking the House. Keel 58, 59.

2. Burglary may be committed without an actual Breaking:

By those who watch to prevent a Discovery, whilst their Companions break the House. 11 H. 4. cap. 13.

By coming down a Chimney. Crompt. 32.

By entering with the Help of a Key. Dalt. 360.

By entering, the Door being open, and the Master of the House retiring to a Chamber, which the Offender breaks open. Moor. 660.

By breaking a Window, and drawing out Goods. Poph. 42.





By pretending to be robbed, raising Hue and Cry, and with a Constable demanding Entry; the Owner opens his Door, then they bind the Constable, and rob the House. Dalt. 360.

By the Help of a Servant within, opening the Door or Window, and the Thief enters; ’tis Burglary in him, and Robbery in the Servant. Nels. 117.

If a Servant draws a Latch, and enters the Chamber of his Master, with an Intent to murder, or rob him, ’tis Burglary. Hutt. 20.

By putting the Hand, or a Hook, &c. in at the Window, and drawing out Goods. Dalt. 359.

3. A Church, Court House, or other Building set apart for Public Use, is a Mansion-House within the Law. Dalt. 361.

[note]

So is every Dwelling House, and a Barn, Stable, or other Out House adjoining, or contiguous to a Dwelling House.

And every Ware-House, or Store-House. 3 & 4 Geo. 2. cap. 4.

And also the Chamber of a Guest entertain'd in any Man's House, or of a Traveller, or other Person, lodging in any House of public Entertainment; or of a Boarder in any Person's House: If the Master of the House, or any other Person, enter such Chamber in the Night Time, with Intent to kill, or steal, ’tis Burglary. Dalt. 359.

4. The Time; it must be in the Night; that is, when it is so dark that a Man's Countenance and Features cannot be distinguished at a reasonable Distance. 3 Inst. 63.

[note]

If a Man commits Burglary, and steals Goods out of the House, it is also Larceny; and if he is acquitted of the Burglary, he may be indicted for Larceny. 2 H. H. 246.

[note]

Any Person, in Defence of his House, may kill him that attempt to commit Burglary. 24 H. 8. c. 5.

In England, there are great Rewards and Advantages for apprehending and convicting Persons guilty of Burglary.

5. It must appear that the Intent of the Offender was to kill, or rob, otherwise ’tis neither Burglary, nor Felony: To break a House in the Night, with Intent to kill, or steal, is Burglary, tho’ no Person be hurt, nor Goods stolen; but if a Man break an House, only





intending to beat another, ’tis but Trespass. Dalt. 362.

Entering in the Day Time, and lying privately ’till Night, then robs, and departs, ’tis not Burglary: But if he breaks open a Door to get out, ’tis Burglary. Nels. 118.

By the Statute, of 18 Eliz. cap. 6. Clergy is taken away in all Cases of Burglary; and the Offender, if convicted, shall be hang'd.

Persons indicted of Burglary are not bailable by Justices of Peace.

When a Burglary is committed, and Complaint made to a Justice of Peace, on Oath, he is to grant his Warrant against the Offender, with Subpœnas for such Witnesses as may be necessary; and on their Appearance, he is to take the Felon's Examination, also the Depositions of the Witnesses, severally, and bind them over to the Superior Court of the District, to give Evidence against the Criminal at his Trial, if he shall appear to be guilty. He is then to commit the Offender, and return the Proceedings to Court in order for his Trial.

Warrant to apprehend a Burglar.

— County, ss.

To the Sheriff of the said County, or any other lawful Officer within the same.

WHEREAS A. B. of — in the County aforesaid, Planter, hath this Day made Information and Complaint, on Oath, before me, C. D. Esq; one of his Majesty's Justices of the Peace for the County aforesaid, that in the Night of the — Day of — the Dwelling House of him the said A. B. at — aforesaid, in the County aforesaid, was feloniously and burglariously broken open, and (here insert the Goods stolen) of the Value of — of the Goods and Chattels of him the said A. B. feloniously and burglariously stolen, taken, and carried away from thence, and that he hath great Reason to suspect, that E. F. of — Labourer, the said Felony and Burglary did commit: These are therefore in his Majesty's Name to command you to apprehend the said E. F. and bring him before me, or any other Justice of this County, to answer the Premises, and to be further dealt with as the Law directs. Given under my Hand and Seal, this — Day of—1774.

[note]



Mittimus for a Burglar.

To the Sheriff or Keeper of the Gaol for the District of —

I SEND you herewith the Body of E. F. late of the Parish of — in the County of — Labourer, taken and brought before me for Felony and Burglary, in breaking and entering the Dwelling House of A. B. of the Parish of — in the County of — on the — Day of — in the Night Time, and stealing from thence to the Value of — the Goods and Chattels of the said A. B. wherewith the said E. F. stands charged. Him you are safely to keep in your said Gaol, until he shall be thence discharged by due Course of Law. Given under my Hand and Seal, this — Day of —

[note]

Indictment for proper Burglary.

THE Jurors for our Lord the King, upon their Oath, present, That A. O. late of — in the County of — Labourer, on the — Day of — in the — Year of the Reign of — at the Hour of — in the Night of the same Day, with Force and Arms, at — in the County of — the Dwelling House of A. I. feloniously and burglariously did break and enter, with Intent him the said A. I. of his Goods in the same Dwelling House then being, feloniously and burglariously to spoil and rob, and the same Goods feloniously and burglariously to steal, take, and carry away; against the Peace of our said Lord the King, his Crown and Dignity.

[note]

Indictment for Burglary and Larceny.

THE Jurors for our Lord the King, upon their Oath, present, That A. O. late of — in the County of — Labourer, on the — Day of — in the — Year of the Reign of — betwixt the Hours of — and — in the Night of the same Day, with Force and Arms, at — in the County of — the Dwelling House of A. I. feloniously and burglariously did break and enter, and one Silver Tankard of the Value of — of the Goods and Chattels of him the said A. I. in the same Dwelling House, then and there feloniously and burglariously did steal, take, and carry away; against the Peace of our said Lord the King, his Crown an Dignity.

[note]



BURNING of HOUSES

BY the Common Law, maliciously and voluntarily to burn down the House of another, is Felony. Dalt. 376.

[note]

It may be necessary, under this Head, to consider what Acts shall make a Man guilty of this Offence:

1. There must be an actual Burning: If a House is set on Fire, tho’ only Part of it be burnt, it is Felony. Dalt. 377.

[note]

2. It must be done maliciously, and voluntarily: If it happens by Mischance, or Negligence, it is not Felony.

Sometimes the Law implies Malice, as if a Man intends to burn the House of A. and by this Means the House of B. is set on Fire, this is Felony: For the Event shall be coupled to the Cause, which was malicious. Nels. 120.

3. It must be the House of another: If a Man will burn his own House, this is no Felony; but if thereby, his Neighbour's House is set on Fire, this may be Felony, because it may be done with a malicious Intent.

A Captain, Master, or Mariner, burning or destroying a Ship, or procuring the same to be done, to the Prejudice of the Owner, or Merchant, shall suffer Death, as a Felon, without Benefit of Clergy: If the Fact is committed where the Admiral hath Jurisdiction, it shall be tried before a Court of Vice-Admiralty. 22 & 23 Car. 2. cap. 7.

Bail is taken away from Burners of Houses, by the Statute of Westm. 1. cap. 15.

By the Articles of the Navy, every Person who shall unlawfully burn, or set Fire to any Magazine or Store of Powder, or Ship, Boat, Ketch, Hoy, or Vessel, or Tackle or Furniture belonging thereunto, shall be punished with Death, by Sentence of a Court Martial. 22 G. 2. c. 33.

If any Person shall by Day or Night, in a riotous, open, tumultuous, or in a secret or clandestine Manner, burn any Wood, or Springs of Wood, or Coppice Wood, he shall be guilty of Felony. 1 G. St. 2. c. 48. 6 G. c. 16.





On Complaint made to a Justice of the Peace for the Crime of House burning, he must issue his Warrant to apprehend the Offender, and cause him to be brought before him, and proceed in the same Manner as for other Felonies.

Warrant to apprehend a Person for House burning.

— County, ss.

To A. B. Constable, or to any lawful Officer within the same.

WHEREAS Complaint hath been this Day made before me, C. D. Esq; one of his Majesty's Justices of the Peace for the said County, That E. F. Planter, did, on the — Day of — wilfully and felonoiusly set Fire to the Dwelling House (Barn or Out House, as the Case may be) of him the said C. D. with Intent to burn and destroy the same. These are therefore in his Majesty's Name to require you to apprehend and bring before me or some other Justice of this County, the said E. F. to be dealt with as the Law directs. Given under my Hand and Seal this — Day of —

[note]

Indictment for House burning

THE Jurors for our Lord the King, upon their Oath, present, that A. B. late of the County of — in the Parish of — Labourer, on the — Day of — in the — Year of the Reign, &c. with Force and Arms, between the Hours of — came unto the House of C. D. of — aforesaid, in the said County, Gentleman, (the said House being in the said County) and with a lighted Candle, (or as the Case may be) which he the said A. B. then and there held in his Hand, of his Malice afore thought, did feloniously set on Fire the said House, by which Means it was then and there intirely burnt down. And so the said A. B. on the said — Day of — in the same Year above mentioned, at — aforesaid in the said County, voluntarily and of his fore thought Malice, feloniously did set on Fire and burn down the House aforesaid, in the Manner and Form above mentioned, against the Peace of our Lord the King, his Crown and Dignity.

[note]



BUYING of TITLES.

BY the Common Law, it is an Offence of a very high Nature to buy or sell any doubful Title to Lands known to be disputed, with an Intent for the Buyer to carry on the Suit; on which Consideration the Seller disposes of it at an under Rate; and it is not material whether the Title sold be good or bad, or whether he was in Possession or not. These Practices manifestly tend to Oppression, by giving Opportunities to powerful Men to oppress the Weak. 1 How. 261.

[note]

By the St. of 13 Ed. 1. c. 49. No Person of the King's Household shall buy any Title whilst it is in Dispute, on Pain of both Buyer and Seller being punished at the King's Pleasure.

And by 32 H. 8 c. 9. None shall buy any pretended Right in any Land, unless the Seller hath taken the Profit thereof One Year before, on Pain that the Seller forfeit the Land, and the Buyer the Value, half to the King, and half to the Informer, to be sued within one Year.

CATTLE and HOGS.

BY the Acts of Assembly of this Province, no Person shall drive any Stocks of Cattle, Horses, of Hogs, to range on any Persons Lands, on Penalty of Ten Pounds. And that no Inhabitant of this Province shall give Leave to any Person to drive on his Lands any Stocks of Cattle, Horses, or Hogs, on Penalty of Ten Pounds.

[note]

No Foreigner or Inhabitant of any other Government, shall presume to drive into this Government any Stocks of Cattle or Hogs, with Intention to winter them here, on Penalty of Twenty Pounds.

If any Person shall steal any Cattle or Hogs, or shall alter or deface the Mark or Brand of any Persons Cattle or Hogs, such Person shall forfeit and pay Ten Pounds, besides the Value of the Beast so stole, or Mark or Brand altered, and shall moreover receive Forty Lashes on his bare Back. And for the second Offence, shall pay the said Fine, and stand in the pillory two Hours, and be branded on the Left-Hand with





a red hot Iron with the Letter T. Penalty recoverable in the County Court, by Action of Debt, to be prosecuted within Six Months by the Owner of the Cattle or Hogs, or within Twelve Months by any other Person. And if any Person shall mismark or misbrand any unbranded or unmarked Cattle, Horses, or Hogs, not his own, he shall forfeit Ten Pounds, over and above the Value thereof; recoverable as aforesaid

[note]



If any strange Cattle shall stray into any Cowpen, the Owner, if he resides there, or the Overseer, shall give Notice thereof, by advertising the same at the Church or Court-House Door, with an Account of the Flesh Marks, Ear Marks, and Brand of such Cattle, within One Month after such Cattle shall come to his Pen; on Penalty of Twelve Shillings for every Beast he shall neglect to give Notice of; recoverable before Two Justices, by the Informer, as aforesaid.

[note]

And if any Slave shall kill any Horse, Cattle or Hog, without Consent of the Owner, or shall steal, mismark, or misbrand any Horse, Cattle or Hog, he shall, for the first Offence, have both his Ears cut off, be publicly whipt, at the Discretion of the Justices and Freeholders before whom he is tried; and for the second Offence, shall suffer Death. The Trial of such Slave to be according to the Act for Trial of Slaves.

[note]

Any Person driving Stocks to range on the Indians Lands, subject to the same Penalties as for ranging Stocks on white Peoples Lands.

[note]

No Person not an Inhabitant of this Province, shall fix any Cowpen, or range or settle any Stocks of Cattle therein; nor shall any Inhabitant take Charge of any Cattle belonging to a non-Resident, unless such Owner or Keeper shall be possessed of a sufficient Number of Acres of Land for feeding such Cattle on, allowing One Hundred Acres for every Ten Head of Cattle. And the Owner or Keeper of such Cattle shall record in the County Court the Number of Acres he or she is legally possessed of; and on any Trial for Breach of this Act, such Record shall be good Evidence. If any Person, in Breach of this Act, shall presume to keep or range a greater Number of Cattle than Ten Head to every Hundred Acres, all the Cattle exceeding that Proportion, shall be forfeited and sold by the Sheriff of the County, on Proof made to the County Court by any Freeholder thereof, he first giving the Owner or Keeper of such Cattle Five Days previous Notice of such Complaint.

[note]

On Proof of such Notice personally, or by leaving a Copy thereof at such Person's Place of Residence, the County Court shall proceed to hear the Matter in a summary Way, without a Jury, and determine according to Evidence and the Right of the Matter. If Judgment pass for the Complainant, the Clerk shall issue an





Order to the Sheriff for the Sale of such Cattle, which Order the Sheriff shall immediately execute, and return the Money to the next Court; one Third whereof shall be paid to the Complainant, one Third to the Church-wardens, for the Use of the Poor of the Parish, and the other third to be paid to the Owner of the Cattle, if called for within Twelve Months, otherwise to the Contingences of the County.

Every Person having the Care of a Stock of Cattle in this Province, the Property of a non-Resident, and such Stock shall exceed the Number of Ten Head to every Hundred Acres, as aforesaid, the Overpulus of such Stock shall within Six Months be removed, on Penalty of being forfeited, as aforesaid.

No Person whatever shall drive any Cattle into this Province, or from one County to another, without having with him a Certificate, under the Hand and Seal of a Justice of the Peace of the County from whence the Cattle were brought, or purchased, of Oath having been made by the Owners, that such Cattle, at the Time or Purchase, or Removal, were found and free from any infectious Distemper, and that no Distemper or Infection were known to be among any Cattle at that Time within Five Miles of the Place from whence they came; and shall also mention the Marks and Brands of such Cattle.

[note]

Every Person driving Cattle without such Certificate, shall forfeit, for every Steer, Bull, Cow, Calf, or Heifer, Forty Shillings; recoverable before a Justice of the Peace of the County, and levied on the Body, or Goods and Chattels of the Delinquent, for the Use of the County.

Every Driver of Cattle refusing to produce a Certificate, as aforesaid, at any Time, to any Resident of the County wherein such Cattle shall be, shall forfeit Twenty Shillings. Any Justice of the County may issue his Warrant to bring such Driver before him, and on Proof thereof, may commit him till he shall pay the same, or may issue an Execution against his Goods and Chattels; which Forfeiture shall be applied to the Use of the County.

On Suspicion of any Cattle having an infectious Distemper among them, any Two Justices of the Peace, and One Freeholder of the County, may inquire into the same; and on due Proof, may make such Order





thereon as may best tend to prevent the spreading of such Infection.

[note]

On Complaint to any two Justices of the Peace, that any Person in the County has suffered any strange Cattle to be at his Pen, without advertising the same as the Law directs, they may issue their Warrant against the Offender; and on due Proof thereof, may give Judgment, and award Execution.

Warrant to apprehend a Person for suffering strange Cattle to be at his Pen.

— County, ss.

To A. B. Constable, or to any lawful Officer of the said County.

WHEREAS Complaint hath been this Day made to us, A. B. and C. D. Esqrs; two of his Majesty's Justices of the Peace of the said County, by E. F. of the said County, Planter, that G. H. of the said County, has suffered and permitted to run at his Cowpen in the said County, upwards of one Month, — Head of Cattle, that is to say, [here describe the Cattle] the Property of which Cattle is unknown, and has neglected or refused to advertise the said Cattle as the Law directs. These are therefore, in his Majesty's Name, to require you to bring the said G. H. before us, or any two of his Magisty's Justices of the said County, to be dealt with as the Law directs. Given under our Hands and Seals, this — Day of —

[note]

Warrant to apprehend a Driver of Cattle, not having a Certificate for the same, according to Law.

— County, ss.

To A. B. Constable, or any lawful Officer of said County.

WHEREAS Complaint hath been this Day made to me, A. B. Esq; one of his Majesty's Justices of the Peace, by C. D. of this County, Planter, that E. F. is now driving a Number of Cattle through this County, which Cattle he the said E. F. brought from — and has got no Certificate for driving the same, as the Law directs. These are therefore, in his Majesty's Name, to require you to bring before me the aforesaid E. F. to answer such Complaint, and to be dealt with as the Law directs. Given under my Hand and Seal, this — Day of—

Warrant.





[note]CERTIORARI.

THIS is a Writ issuing out of the Chancery, directed to an Inferior Court, to call up the Record of a Cause there depending, that conscionable Justice may be therein ministred, upon Complaint made, by Bill, that the Party seeking the said Writ, hath received hard Dealing in the said Court. Fitzh. Nat. Brev. 242.

[note]

It may be obtained to remove an Indictment, or a Recognizanze, &c. or any Process in Civil Causes, before Judgment given in the Inferior Court; and in some Cases, after Judgment, but before Execution; and it removes the whole Record.

It may be also awarded to Justices of Peace, to remove Indictments, Informations, &c. given in before them.

A Certiorari to remove an Indictment is good, altho’ it do bear Date before the taking of the Indictment, which is to be removed by the Certiorari: For the Date is not material, and it may be granted to remove a subsequent Indictment, as well as an Indictment preceding the Certiorari. Style 155.

It ought to be granted upon a Matter in Law only, and not upon a Matter of Fact: For Matters of Law only, are determinable by the Court, and Matters of Fact, by Juries. 157.

It doth not lie to remove a Cause out of an Inferior Court, after a Verdict is given in it; for then the Cause is determined, and so in vain to remove it, but the Process then is by Writ of Error. Ibid.

But if the Justices of an Inferior Court certify to the Judges in Chancery, that a Jury do find a Verdict against the Evidence given them; thereupon, the Superior Court usually, upon Paiment of Costs, grants a new Trial. Style 156.

Upon Delivery of this Writ of Certiorari, to a Justice of Peace, he is to stay all further Proceedings in





the Cause specified in such Writ, and must certify the whole Record, at his Peril, and make Return thereof to that Court whence the Writ issues.

Form of a Certiorari.

GEORGE the Third, by the Grace of God, of Great-Britain, France, and Ireland, King, Defender of the Faith, and so forth. To our Justices of our Court of Pleas and Quarter Sessions for our County of — Greeting. Whereas A. B. hath lately in our said Court of our County aforesaid, according to the Custom of the same Court, impleaded C. D. late of — in an Action of Debt, upon Demand, for — Pounds, and thereupon, in our said Court, before you, obtained Judgment against the said C. D. for the Recovery of the said Debt. And we being desirous, for certain Reasons, that the said Record should by you be certified to us, do command you, that you send under your Seals the said Record of the said Recovery, with all Things touching the same, into our Court before us at — on the — Day of — plainly and distinctly, and in as full and ample Manner as it now remains before you, together with this Writ; so that we, on the Part of the said A. B. may be able to proceed to the Execution of the said Judgment, and do what shall appear to us of Right ought to be done. Witness, &c.

[note]

The Return of the Certiorari may be thus; indorsed on the Back of the Writ.

The Execution of this Writ appears in a Schedule to the same annexed.

The Schedule, or Certificate of the Record, returned by a Justice of the Peace.

I, A. B. Esq; one of his Majesty's Justices of the Peace for the County of — do certify to his Majesty, in his Court of Chancery, That I, by Virtue of this Writ hereto annexed, to me delivered, the said Information in the said Writ mentioned, and all Matters touching the same, to his Majesty do hereby distinctly send, under my Seal, as in the said Writ is of me required. Dated at my House, in the said County of — this — Day of — Anno Dom. —

[note]

When a Certificate of a Record is made by an Inferior Court, or by a Justice of Peace, or Coroner, by





Virtue of a Certiorari, to make them respectively directed, they ought to make the Certificate as they will stand to it, at their Peril, for it cannot be amended after it is filed; and if the Record be not truly certified, there lies an Action on the Case, against the Party that made the Certificate. Style 155.

If a Certiorari to certify a Record be, by some Mishap, so torn or defaced, that the Record cannot be perfectly certified by it, the Party may have an alias Certiorari; but it must be upon Motion to the Court, because he had no Fruit of the first, and so it is all one as if he had not any. Style 158.

But this Writ is seldom used in criminal Proceedings, and will be granted only in extraordinary Cases, and upon special Cause shewn, viz. that there cannot be an indifferent Trial had in the County where the Information was made, or the Indictment found.

CHALLENGE. See JURIES.

CHAMPERTY. See MAINTENANCE.

CHANCERY.

NOTHING under this Head comes within the Cognizance of a Justice of the Peace. But as the Court of Chancery is held in this Province merely by the Prerogative of the Crown, and the Proceedings in it not regulated by any Act of Assembly, many are ignorant of the Nature of this Court, and of the Rules by which it is regulated. For the Information of such we shall here give a short History of it.

[note]

The Court of Chancery of this Province is held by the Prerogative of the Crown, the Judges are, his Excellency the Governor, or Commander in Chief for the Time being, and his Majesty's Council of this Province; the Court is held generally in Newbern, at the Time of the Assembly, or at any other Public Meeting, as the Governor thinks fit; but may be held where he pleases, as by Statute this Court follows the King, wherever he is.

[note]

The Judges of this Court have all the Powers of the Lord High Chancellor of England, who is the highest





and most honourary Officer of the Long Robe; the Proceedings of the Court are nearly the same with the High Court of Chancery in England, save some little Difference in the Rules, which it may be sometimes thought necessary to alter, for the greater Conveniency of Practice in the said Court.

The Court of Chancery in England, Mr. Jacob says, is the highest Court of Judicature in the Kingdom, next to the Parliament, and of very ancient Institution. The Jurisdiction of this Court is of two Kinds; ordinary, or legal; and extraordinary, or absolute. The ordinary Jurisdiction is that wherein the Lord Chancellor, in his Proceedings and Judgments, is bound to observe the Order and Method of the Common Law; and in such Cases the Proceedings have been usually in Latin, and filed or inrolled in the Petty Bag Office: And in the extraordinary or unlimited Power is that Jurisdiction which this Court exercises in Cases of Equity, wherein Relief is to be had by Way of English Bill and Answer. The ordinary Court holds Plea of Recognizances acknowledged in the Chancery, Writs of Scire Facias for Repeal of Letters Patent, Writs of Partition, &c. and also of all personal Actions, by or against any Officer of the Court; and by Acts of Parliament of several Offences and Causes: All original Writs, Commissions of Bankrupts, of charitable Uses, of Ideots and Lunacy, &c. issue out of this Court, for which it is always open; and sometimes a Supersedeas or Writ of Privilege, hath been here granted to discharge a Person out of Prison. One from hence may have an Habeas Corpus, Prohibition, &c. in the Vacation, which are to be had out of the other Courts only in Term Time; and here a Subpœna may be had to force Witnesses to appear in other Courts, when they have no Power to call them. 4 Inst. 79. 1 Danv. Abr. 776. But in prosecuting Causes, if the Parties descend to issue, this Court cannot try it by Jury; but the Lord Chancellor delivers the Record into the King's Bench, to be tried there; and after Trial had, it is to be remanded into the Chancery, and there Judgment given: Though if there be a Demurrer in Law, it shall be argued and adjudged in this Court. When there is Demurrer upon Part, and Issue upon Part, the Record being in the King's Bench, that Court ought to give Judgment, because there can be but one Execution;





and if the Record came thither entirely, they cannot send it back again. 1 Mod. Rep. 29. But see 4th Inst. 80. Upon a Judgment given in this Court, a Writ of Error lies returnable in the King's Bench. 4 Inst. 80. The extraordinary Court, or Court of Equity, proceeds by the Rules of Equity and Conscience, and moderates the Rigour of the Common Law, considering the Intention rather than the Words of the Law. It gives Relief for and against Infants, notwithstanding their Minority: And for and against married Women, notwithstanding their Coverture. In some Cases a Woman may sue her Husband for Maintenance; she may sue him when he is beyond Sea, &c. and be compelled to answer without her Husband: All Frauds and Deceits, for which there is no Redress at Common Law: All Breaches of Trust and Confidences, and Accidents, as to relieve Obligors, Mortgagors, &c. against Penalties and Forfeitures, where the Intent was to pay the Debt, are here remedied: For in Chancery, a Forfeiture, &c. shall not bind, where a Thing may be done after, or Compensation made for it. 1 Danv. 752. 2 Vent. 352. 1 Roll. Abr. 373. Also this Court will give Relier against the Extremity of unreasonable Engagements, entered into without Consideration; oblige Creditors that are unreasonable, to compound with an unfortunate Debtor; and make Executors, &c. give Security, and pay Interest, for Money that is to lie long in their Hands. 2 Vent. 546. Here Executors may sue one another, or one Executor alone be sued without the Rest: Order may be made for Performance of a Will: It may be decreed who shall have the Tuition of a Child: This Court may confirm Titles to Lands, tho’ one hath lost his Writings: Render Conveyances, defective through Mistake, &c. good and perfect; but not Defects in a voluntary Conveyance, unless where intended as a Provision for younger Children.

[note]

The Proceedings in Chancery are, first to file the Bill of Complaint, signed by some Counsel, setting forth the Fraud or Injury done, or Wrong sustained, and praying Relief. After the Bill is filed, Process of Subpœna issues to compel the Defendant to appear; and when the Defendant appears, he puts in his Answer to the Bill of Complaint, if there be no Cause for Plea to the Jurisdiction of the Court, in Disability of the Person, or in Bar, &c. Then the Plaintiff brings his Replication,





unless he files Exceptions against the Answer as insufficient, referring it to a Master to report, whether it be sufficient or not; to which Report Exceptions may be also made. The Answer, Replication, and Rejoinder, &c. being settled, and the Parties come to Issue, Witnesses are to be examined upon Interrogatories, either in Court or by Commission in the Country, wherein the Parties usually join; and when the Plaintiff and Defendant have examined their Witnesses, Publication is to be made of the Depositions, and the Cause is to be set down for Hearing, after which follows the Decree. If the Plaintiff dismisseth his own Bill, or the Defendant dismisseth it by Reason of Want of Prosecution, or if the Decree is in Behalf of the Defendant, the Bill is dismissed with Costs, to be taxed by a Master. If the Defendant doth not appear, on being served with the Process of Subpœna, in Order to answer, upon Affidavit of the Service of the Writ, an Attachment will issue out against him; and if a Non est Inventus is returned, an Attachment with Proclamation goes forth again him: And if he stands further out in Contempt, then a Commission of Rebellion may be issued, for apprehending him, and bringing him to the Fleet Prison; in the Execution whereof, the Persons to whom directed may justify breaking open Doors. If the Defendant stands further in Contempt, a Serjeant at Arms is to be sent out to take him; and if he cannot be taken, a Sequestration of his Land may be obtained till he appears. And if a Decree, when made, be not obeyed, being served upon the Party, under the Seal of the Court, all the afore-mentioned Processes of Contempt will issue out against him, for his Imprisonment, till he yields Obedience to it. If a Bill in Chancery be exhibited against a Peer, the Course is for the Lord Chancellor to write a Letter to him; and if he doth not put in his Answer, then a Subpœna issues, and then an Order to shew Cause why a Sequestration should not go forth: And if he still stands out, then a Sequestration shall be had; for there can be no Process of Contempt against his Person. Where there is any Error in a Decree in Matter of Law, there may be a Bill of Review, which is in Nature of a Writ of Error, or an Appeal to the House of Lords. A Party grieved with a Decree in Chancery, on Petition to the King, it hath been adjudged that the Matter might be referred by the King





to the Judges, who may reverse the Decree, &c. 3 Bulst. 116. But it is now usual to appeal to the House of Lords; which Appeals are to be signed by two noted Counsels, and exhibited by Way of Petition. The Petition or Appeal is lodged with the Clerk of the House of Lords, and read in the House, whereupon the Appellee is ordered to put in his Answer, and a Day fixed for hearing the Cause; and after Counsel heard and Evidence given on both Sides, the Lords will affirm or reverse the Decree of the Chancery, and finally determine the Cause by a Majority of Votes, &c. Though it is observed on an Appeal to the Lords from a Decree in Chancery, no Proofs will be admitted to be read as Evidence, which were not made Use of in the Chancery. Preced. Chanc. 212. If a Bill be brought where the Lord Chancellor is Party to the Suit, it must be directed to the King's Majesty; for no Man may be both Judge and Party in a Cause.

[note]

It is needless here to give Forms of Bills, Answers, Replications, and Decrees in Chancery, as they are very long, and are only serviceable to Lawyers, whose Books direct them to the best Precedents.

CHEAT.

BY the Common Law, all Cheats are punishable; such as all deceitful Practices to defraud another of his known Right, by Means of some artful Device, contrary to the plain Rules of common Honesty; as by playing with false Dice, causing an illiterate Person to execute a Writing to his Prejudice, &c.

[note]

A Person counterfeiting a Pass, was adjudged to stand in the Pillory, and fined. Dalt. 2. 32.

A Minor pretending to be of Age, and defrauding People by taking up Money or Goods, and then pleading his non-Age, though the Persons injured cannot recover, yet he may be punished, by Indictment, as a common Cheat.

By the Stat. 33 Hen. 8. c. 1. If any Person shall falsely and deceitfully obtain, or get into his Hands any Money, Goods, Chattles, or other Things, by Means of any false privy Token, or counterfeit Letter, and shall be convicted thereof, he shall be punished by Imprisonment,





Pillory, or other corporal Punishment, as the Court shall appoint. The Party grieved has also his Action at Law for the Goods so obtained.

On a Complaint to a Justice of the Peace against Offenders herein, he may issue his Warrant to apprehend them, and bring them before him, or any other Justice, where they must give Security for their Appearance to the next Court, or be committed.

Warrant to apprehend a Cheat.

— County, ss.

To A. B. Constable, or other lawful Officer.

WHEREAS Complaint hath been this Day made to me, A. B. Esq; one of his Majesty's Justices of the Peace for the said County, by C. D. of — in the said County, Planter, on Oath, that on the — Day of — E. F. of — Planter, did, by a false privy Token, or [as the Case may be] falsely and deceitfully obtain and get into his Possession [here mention the Things] from G. H. of — These are therefore, in his Majesty's Name, to command you to apprehend and bring before me, or some other Magistrate of this County, the said E. F. to answer the said Complaint. Given under my Hand, this — Day of —

[note]CHURCHWARDENS.

CHURCHWARDENS are very ancient Officers, and, by the Common Law, are made a Corporation to take Care of the Goods of the Church, the Property whereof is vested in them. They are to be yearly chosen, according to the Custom of every several Place, to take Care of such Things as belong to the Church, Church-Yard, or Poor; and to observe the Behaviour of the Parishioners, in such Matters as appertain to the Ecclesiastical Jurisdiction. Lamb. Duty Chw.

[note]

They are a Corporation, only as to Moveables, viz. to take Goods, but not Lands, for the Use of the Church: For they cannot prescribe, as Churchwardens, to have Lands; neither can they have any Action, at Common Law, to recover Goods, of which they were never possessed, though they may recover such Goods,





by Bill in Equity; but if once they had Possession, then they may have an Action of Trespass, &c. and recover Damages, to the Use of the Parish, if such Goods are taken away or abused; and they may prefer an indictment of Robbery, if stolen: But they cannot sell such Goods, or dispose of them, without Astent of the Parish; if they do, the Parishioners may choose new Officers, who may have an Action of Account against them. Nels. 339.

[note]

They may maintain an Action for defacing a Monument in the Church: But if any Thing belonging to the Freehold is broken or cut down, as the Walls, Windows, Doors, &c. Trees in the Church-Yard, &c. the Parson or Vicar, and not the Churchwardens, shall have an Action. 2 Cro. 367.

They may apprehend those who disturb the Minister during Divine Service, and bring them before a Justice of Peace.

They are to present Persons not coming to Church; those who profane the Sabbath, by Working, Traveling, Tippling at Ordinaries, Drunkenness, Swearing, Cursing, and all Persons who shall transgress any Penal Laws, made for the Restraint of Vice and Immorality.

They are to account, at the End of every Year, and to deliver what remains in their Hands to the new Churchwardens; upon Refusal, the new Officers may have an Action against them.

The Laws of this Province, relative to Churchwardens and Vestrymen, are as follow:

The Freeholders of every Parish are to meet on Easter Monday in every Third Year, at the Court-House, and there choose Twelve Freeholders to serve as Vestrymen. The Sheriff shall, Ten Days before the Time of the Vestry's Meeting, summon every Vestryman to meet at the Church of their Parish, within Thirty Days after such Choice, to be qualified. If the Sheriff neglects to summon them, he forfeits Twenty Shillings for every Vestryman he neglects. He is to be paid by the Parish Two Shillings for every Vestryman he summons.

[note]

At all Elections of Vestryman the Sheriff, or his Deputy, shall attend at the Court-House, and take the Votes in the following Manner: He shall open the Poll at Ten o'Clock in the Forenoon, and after Proclamation made to the Freeholders to come in and vote, he





shall take a List of the Names of the Voters, who shall give their Votes for Twelve only; the Votes to be given openly, and the Poll kept open till Sunset. He shall then cast up the Number of Votes given for each Candidate, and declare the Twelve who shall have the greatest Number of Suffrages, to be duly elected; and in Case of an Equality of Votes, the Sheriff shall have the casting Vote, and in no other Case give his Vote.

[note]

That every Person in actual Possession of a real Estate, for his own Life or the Life of another, or an Estate of greater Dignity, of Fifty Acres of Land, of a saved Lot in some Town, in the Parish, shall be deemed a Freeholder. And any of the Candidates may object to any Person's giving his Vote until he has been sworn by the Sheriff concerning his Qualification, which Oath the Sheriff shall administer, in the following Words:

[note]

YOU shall swear (or affirm) that you are of actual Possession of a Freehold of Fifty Acres of Land, in your own Right, or the Right of some other Person; or a Lot in the Town of — saved according to Law, in the Parish of — and that you have not given your vote before in this Election. So help you God.

[note]

No Person under Twenty One Years of Age shall be elected a Vestryman, or give his Vote for the Election of a Vestryman in any Parish.

[note]

That every Person in the Parish qualified to vote for a Vestryman (the People called Quakers excepted) must attend the Election and give his Vote for a Vestryman, on Penalty of Twenty Shillings; unless prevented by some bodily Infirmity, or legal Disability. The Penalty to be recovered by a Warrant from any Justice of the Peace in the County, to be sued for within Ten Days. And if any Person shall think himself aggrieved by any Order of any Justice, he may appeal to the next County Court, which shall determine the same in a summary Way.

[note]

If any Person shall vote at any Election of Vestrymen, who is not a Freeholder, in the Manner before directed, he shall forfeit Five Pounds; recoverable in the County Court, by Action of Debt or Information; one Half to the Informer, the other Half to the Parish. On such Suit, Onus Prebandi to lie on the Defendant.

[note]



Every Vestryman elected as aforesaid shall, at the first or second Meeting after the Election, take before some Magistrate, and in Presence of the Vestry, the Oaths by Law appointed for the Qualification of Public Officers; and shall repeat and subscribe in the Vestry Book the following Declaration, to wit,

I A. B. will not oppose the Doctrine, Discipline, and Liturgy of the Church of England, as by Law established.

[note]

Every Vestryman so elected and qualified, shall be deemed Vestrymen of the Parish for Three Years.

Every Vestryman refusing or neglecting to take the Oaths of Government, to repeat and subscribe the Test, and to subscribe the Declaration aforesaid, shall be incapable to act as a Vestryman. And the other Vestrymen qualified as aforesaid, shall elect and choose other Vestrymen, instead of those neglecting to qualify as aforesaid.

Every Orthodox Minister inducted into any Parish, shall vote and act as a Vestryman, and is declared to have the same Powers as other Vestrymen.

The Vestry of every Parish, within one Month after Election and Qualification, shall choose Two Churchwardens out of the Vestry; and within Forty Days after Easter Monday in every Year thereafter, shall elect and choose out of their Number the said Two Officers. And if any Person, after being elected Churchwarden as aforesaid, shall refuse to execute the Office, he shall forfeit Forty Shillings, recoverable before a Magistrate of the County; one Half to the Informer, the other Half to the Parish. And in such Case, the Vestry shall choose other Churchwardens out of the Vestry. Provided, no Person shall be obliged to serve as Churchwarden more than one Year.

[note]

No Member of his Majesty's Council shall be compelled to serve as Churchwarden.

The Churchwardens shall purchase, at the Expence of the Parish, well bound Books, for keeping a Journal of the Minutes of Vestry, in which shall be stated an Account of the Monies by them received and paid in Virtue of their Office; and within Ninety Days after their Wardenship shall expire, shall set up in the Court-House, on a Court Day, Copies of such Accounts; on Penalty of Five Pounds, recoverable in the County





Court, by Action of Debt or Information; one Half to the Informer, the other Half to the Parish.

[note]

The Churchwardens, or in Case they refuse, any Three of the Vestry, may call a Vestry, by Summons directed to the Constables of the Parish, who are to execute the same, on Penalty of Ten Shillings for every Vestryman they shall neglect. And every Vestryman failing to attend on such Suminons, shall forfeit Ten Shillings, unless he shews sufficient Cause for his Neglect, to be admitted by the Vestry. Which Penalties shall be recovered by Warrant from a Justice of the County, and applied Half to the Informer, and Half to the Parish.

On the Death or Removal of any Churchwarden, the Vestry may elect others, out of the Vestry, who are to serve till the Time of electing new Churchwardens; on Penalty of Forty Shillings, recoverable and applied as before.

Every Agreement and Order of Vestry made for Provision of a Minister, or any other parochial Business, shall be binding against them and their Successors.

On the Death or Removal of any Vestryman, the Vestry may elect another, to be qualified as before directed.

Every Vestry to be held at the Church, or Court-House.

The Vestry of every Parish shall employ Readers to perform Divine Service, at such Places as they shall think fit.

Between Easter Monday and the First Day of November, yearly, the Vestry of every Parish shall lay a Tax on the Parish, not exceeding Ten Shillings, for building Churches and Chapels, paying the Minister's Salary, purchasing a Glebe, and other Contingencies of the Parish. If any Vestry shall neglect, they shall be liable to the Action of the Party grieved for all Damages he may sustain.

[note]

Every Minister of a Parish shall perform Divine Service in a Surplus or Gown, agreeable to the Rubrick of the Church.

No Vestryman capable of holding the Office of Clerk of the Vestry.

The Sheriff of every County shall collect the Parish Tax, and within Forty Days after every Assessment, give Bond with Security to the Churchwardens, in the





Sum of Five Hundred Pounds, for the faithful Performance of his Duty therein. Every Sheriff failing to give such Bond and Security, shall forfeit Twenty Pounds; recoverable in any Court of Record, by Action of Debt or Information, by the Churchwardens, to the Use of the Parish. On such Sheriff's Neglect to give Bond, the Vestry shall appoint some other Collector; who is to give Bond and Security as aforesaid.

[note]

If any Sheriff who hath undertaken the Collection of Parish Taxes, shall be removed from his Office, or the Time of it expire before he has finished his Collection, his Power of Collection shall notwithstanding remain as fully as if he had not been removed. And where any such Sheriff shall die before finishing his Collection, the Vestry may appoint the succeeding Sheriff, or another Collector, to finish the same; to give Bond as aforesaid.

If any Sheriff or Collector of Parish Taxes shall neglect to account for and pay the Parish Taxes, the Superior Court, on Motion of the Churchwardens, shall give Judgment against such Sheriff or Collector, for all Monies that may be due to the Parish; and award Execution against their Goods and Chattles, Lands and Tenements; provided they have Ten Days Notice of such Motion.

[note]

All Parish Taxes shall be collected, and accounted for, by the Tenth Day of June in every Year; the Collector allowed Six per Cent. for collecting, and may make Distress on all Delinquents failing to pay by the Tenth Day of March in each Year. And if the Owner of any Goods distrained on shall not pay what is due within Five Days, the Collector may sell them by Auction to the highest Eidder, first advertising the Sale at the Court-House, the Church Door, and giving Notice thereof to the People immediately after Divine Service, on the next Sunday after the Expiration of the Five Days; the Sale to be not less than Three Days, nor more than Ten Days after such Notice.

[note]

No Collector to make unreasonable Distress, or to seize on Slaves, if other sufficient Distress can be found; on Penalty of being liable to the Action of the Party grieved, wherein he shall recover full Costs, although the Damage be under Forty Shillings.

The Vestry of every Parish shall have Power to call every Justice, or other Person, to account on Oath, for





all Monies that may be in their Hands belonging to the Parish, which, if they neglect to pay, they shall forfeit Twenty Pounds; recoverable in any Court of Record, by Action of Debt or Information, to the Use of the Parish; and the Suit may be carried on by the Churchwardens, and their Successors.

[note]

If by Badness of Weather, or any other Accident, the Election of Vestrymen shall not be held on the Day appointed, the Sheriff shall appoint another Time, not less than Ten, nor exceeding Twenty Days thereafter, for the Election of Vestrymen.

The Sheriff of every County, at the Court preceding every Election, shall read this Act at the Court-House Door, on the Second Day of the Court, between the Hours of Twelve and One of the Clock; and also give Notice of such Election, by advertising the same at every Church and Chapel in the Parish on some Sunday at least Forty Days before the same, on Penalty of Ten Pounds, recoverable with Costs, in the County Court, by Action of Debt; one Half to the Informer, and the other Half to the Parish.

[note]

Every Person chosen a Vestryman, and refusing to qualify, agreeable to Law, to forfeit Three Pounds, recoverable before a Magistrate; Half to the Informer, and Half to the Parish.

[note]

The Vestry of every Parish, where they think it necessary, may erect or hire Houses for lodging and employing the Poor, who are to be employed in such Works as shall be directed by the Vestry or Churchwardens; and shall apply the Benefit of their Labour towards their Support, and provide Cotton, Flax, or other Materials, for setting them to work. And where any Parish shall be too small to erect such Houses, any Two Parishes may join, and employ their Poor. The Vestry shall have Power to rent or purchase a Tract of Land, or Lots in Town, whereon to erect such poor House, and to levy a reasonable Allowance on their Parish for the Education of the poor Children on their Parish, till they are bound out.

[note]

No poor Person to acquire a Settlement in any Parish by being removed to it, but to belong to the Parish from whence removed.

The Churchwardens of every Parish shall have Power to order the Constable to convey all Beggars to the Poor House, there to be employed Twenty Days, or





a less Time, in such Works as they shall direct; the Profits of their Labour to go towards their Support.

The Vestry of every Parish shall make Rules and Orders for the Employment and Correction of the Poor, and shall appoint Persons to keep the Poor House and oversee the Poor, who shall be employed in such Works as are suited to their several Abilities, and the Rules of the Vestry; and may inflict corporal Punishment on such Poor as will not conform themselves to the Rules of the House, or behave resractorily, not exceeding Ten Lashes for one Offence. Such Overseer annually to render a true Account to the Vestry of the Poor under his Care, and the Profits arifing from their Labour, and how disposed of; and may be displaced by the Vestry at Pleasure.

[note]

If any poor Person shall refuse to be placed, or stay at any Poor House, he shall forfeit his Title to any Relief from the Parish; unless the Churchwardens shall judge them incapable of Labour, and order otherwise.

The Churchwardens of every Parish shall keep Books, in which shall be registred the Names of all the Poor, the Time they were admitted, and the Occasion of it; which Books shall be produced at the Time of laying the Parish Levy, or as often as the Vestry think fit; when the Names of the Poor shall be called over, and the Reasons of their receiving Relief examined, and shall then be continued, or discharged, as the Vestry shall think fit.

Every Person received into a Poor House, shall, upon the Shoulder of the right Sleeve of his upper Garment, in an open Manner, wear a Badge, cut in Cloth, with the Name of the Parish; and if any Poor shall neglect to wear such Badge, the Vestry may punish such Offence, by suspending his Allowance, or whipping, not exceeding Five Lashes. If any Person, not intitled to such Relief, shall wear such Badge, they may be whipped by Order of any Justice, unless they pay down Ten Shillings to the Churchwardens, for the Use of the Poor of the Parish.

Every Owner of a Plantation shall set apart a Burial Place on his Plantation, and fence the same for the Burial of all Christians that shall die on such Plantation; and before Burial, there shall be called Three or Four Neighbours to view the Corpse. If it shall appear that the Person came to his Death by any violent or unlawful





Means, Notice shall be given to the Coroner, that Proceedings may he had thereon. If any Person called on shall refuse to come, he shall forfeit Five Shillings; to be levied by a Warrant from a Justice, and paid to the Churchwardens of the Parish, for the Use of the Poor.

[note]

If any Dead shall be buried contrary to this Act, the Person occasioning the same shall forfeit Ten Pounds; one Third to the Informer, one Third to the King, and the other Third to the Poor of the Parish; recoverable in the Superior Court, by Action of Debt or Information.

The Churchwardens of every Parish shall yearly demand of the Justices of the Court, all Fines in their Hands, becoming due and recovered by them, on the Acts for keeping holy the Lord's Day.

The abovesaid Act to be read in all Parish Churches and Chapels twice a Year, by the Minister or Clerk, on the First or Second Sunday in April, and on the First or Second Sunday in September, on Penalty of Twenty Shillings; to be levied by a Warrant from a Justice of the Peace, to the Use of the Parish; and the Churchwardens are to provide a Copy of this Act, at the Charge of the Parish.

[note]

Churchwardens to take Charge of Servants who may be ordered into their Custody, to be provided for by their Masters.

Women Servants having Children by their Masters, Churchwardens may sell them for one Year, after their Time of Service is expired, and the Money to go to the Parish. If any such have a Child by a Negro, Mulatto, or Indian, the Churchwardens may sell them for Two Years, over and above their Time of Service with their Master; the Money to be applied to the Use of the Parish.

[note]

Rewards for taking up runaway Servants to be paid by the Churchwardens, and levied on the Master or Owner, if in the County; if not, to transmit the Account to the Place of his Residence; the Sheriff of which County shall levy the same upon his Goods and Chattels.

Ferriages of Constables, and their Assistants, conveying Runaways, to be paid by the Churchwardens of the Parish, and by them levied on the Master or Owner of such Runaways.





The Churchwardens of every Parish may seize and sell all Horses, Cattle, or Hogs, belonging to Slaves; one Half of the Money to the Use of the Parish, the other Half to the Informer.

If any Slave shall be set free, except for meritorious Services, the Churchwardens, within Six Months afterwards, may sell such Slave, and apply the Money to the Use of the Parish. And if any Slave shall depart the Province, and return again, the Churchwardens may sell such Slave in One Month after his Return, to the Use of the Parish as aforesaid.

[note]

The Churchwardens of every Parish are to receive all Fines recovered on the Deer Act, for the Use of their Parish.

[note]

All Fines recovered on the Act for regulating Officers Tax, are to be received by the Churchwardens, for the Use of the Parish.

Upon Complaint of the Churchwardens to any Magistrate, that any poor Person is come into the Parish, and likely to become chargeable, such Justice shall issue his Warrant, and cause such poor Person to be removed to the Parish from whence he came; but if Sickness or Disability prevents his being removed, the Churchwardens shall provide for him, at the Charge of the Parish, and after Recovery cause him to be removed; which Charges the Parish were he was last settled shall pay; and if the Churchwardens of such Parish shall refuse to receive and provide for such poor Person, they shall forfeit Twenty Pounds; one Half to the Parish, and the other Half to the Informer; recoverable in the County Court. If any Housekeeper shall entertain such poor Person, and shall not give Information thereof to the Churchwardens, within one Month, he shall forfeit Five Pounds; recoverable by the Churchwardens in the County Court, to the Use of the Parish.

Masters of Vessels bringing poor Persons into the Province, who are likely to become a Parish Charge, shall give Bond to the Governor in the Sum of Forty Pounds, to carry such poor Person back, or indemnify the Parish; or such Captain may be committed to Gaol by Two Justices, till he shall comply with such Order. Which Bond the Churchwardens may sue as often as such poor Person shall become chargeable to the Parish.

[note]



For other Matters relating to Churchwardens, see CLERGY, LORD'S DAY, MARRIAGES.

CLERGY.

BY the Common and Statute Law, the Clergy have many Privileges which the Laity have not.

[note]

No Person shall lay violently Hands on a Clergyman, on Penalty of being punished in the Ecclesiastical Court. 13 Ed. 1.

Clergyman in Holy Orders, may have the Benefit of Clergy a second or third Time. 2 H. H. 374, 375.

They are not to serve in any Temporal Office, that they may the better discharge their Duty in the Celebration of Divine Service. 1 Inst. 96.

They are not to serve in War. 2 Inst. 4.

No Clergyman shall be arrested in any Church or Churchyard, whilst attending Divine Service, on Pain of Imprisonment. 50 Ed. 3. c. 5.

If an Action be brought against a Clergyman, and the Sheriff return that he is a Clergyman beneficed, having no lay Fee in which he may be summoned, his Body cannot be arrested, but a Writ to the Bishop to compel him to appear. 2 Inst. 4.

A Clergyman bound in a Statute, or Recognizance, shall not be taken in Execution; and if he is a Minister having the Cure of a Parish, and having nothing but Ecclesiastical Goods, no Writ of Levari Facias shall be brought against his Goods, but a Writ to the Bishop to levy the Debt of the Goods of the Church. 2 Inst. 4.

No Clergyman shall buy, to sell again, any Cattle, Corn, Fish, Wool, Wood, Victual, or any Manner of Merchandize; on Pain of treble Value, Half to the King, and Half to the Informer; and the Contract shall be void. 21 H. 8. c. 13.

No Clergyman shall keep any Tan-House, or Brew-House, but for his own Use; on Penalty of 10 l. a Month; Half to the King, and Half to the Informer. 21 H. 8. c. 13.

The Ordinary may punish Clergymen for Incontinency, by Imprisonment at Discretion. 1 H. 7. c. 4.





The Benefit of Clergy is a Privilege to save the Life of a Criminal; it was first introduced by the Canon Law, and was originally intended to save the Lives of Spiritual Persons only. It was an Encroachment of the Pope upon the temporal Power in Behalf of the Clergy, whom he endeavoured to exempt from the Jurisdiction of lay Judges in Cases of Life and Member. In early Ages, few Men were bred to Literature but those in Holy Orders, and therefore the Way of Trial whether a Criminal was a Clerk or not, was by reading, of which the Court was judge, who ordered a Book to be brought, and if he could read, he was delivered to the Ordinary for Purgation, after which he was set at Liberty. But Purgation is now laid aside, and by the 18 Eliz. c. 7. the Criminal is to be burnt in the Hand, and set at Liberty.

[note]

Thus Benefit of Clergy was originally intended for Men in Holy Orders, but it is now extended to all Persons, and the Ceremony of Reading laid aside.

When a Person is convicted of any Crime wherein Clergy is allowed, he is to demand it, and is then to be burnt on the Brawn of the left Thumb with the Letter T. as a Mark to prevent his being allowed Clergy a second Time.

[note]

He is then restored to the Possession of his Lands and his Credit, and enabled to be a good Witness; but may be detained in Gaol till he find Sureties for his good Behaviour.

[note]

I shall now relate the Substance of the Acts of Assembly of this Province concerning the Clergy.

The Minister, Clerk, or Reader of every Parish, must read the Act for keeping the Lord's Day holy twice a Year, immediately after Divine Service, on the first or second Sundays in April and September, on Penalty of Twenty Shillings, to the Parish.

[note]

Every Minister received into a Parish as Incumbent, shall have a Salary of 133l. 6s. 8d.

[note]

And he may take and receive the following Fees, viz.

For marrying, if by Licence, Twenty Shillings, if by Banns, Five Shillings.

[note]

For publishing Banns, and granting Certificate, One Shilling and Six Pence.

For preaching a Funeral Sermon, if required, Forty Shillings.





And may demand the said Perquisites, if he shall not refuse to do the Services, although they should be performed by any other Person.

The Vestry of every Parish in this Province shall purchase a Tract of Land of Two Hundred Acres at least, for a Glebe for the Incumbent, and his Successors; and until such Glebe shall be purchased, the Minister shall receive Twenty Pounds per Annum. The Vestry shall build on such Glebe a convenient Mansion House, of 38 Feet by 18, a Kitchen, Barn, Stable, Dairy, and Meat-House, with such other Conveniences as they may think fit.

[note]

The Minister shall keep such Houses on the Glebe in tenantable Repair, and leave them so at his Death or Removal (Accidents by Fire or Tempest excepted.) If he fails so to do, he, his Executors or Administrators, shall be liable to the Action of the Churchwardens, who shall recover the Value of such Repairs. And every Vestry of a vacant Parish shall put the Buildings on the Glebe in Repair, for the Reception of a Minister; and where they judge that the Minister has not committed any Waste, may make such Repairs on the Glebe as they think necessary.

[note]

If any Clergyman presented to a Parish shall be guilty of any notorious Immorality, the Governor, with Consent of his Council, may suspend him; which Suspension shall be good till the Bishop of London shall restore, or pass Sentence of Deprivation on him.

[note]

Where a Minister shall be suspended, the Parish shall be discharged from the Payment of his Salary, &c. during such Suspension.

The Vestry shall pay every Minister of a Parish his Salary by the First Day of August annually, or he may, by Motion in the Superior Court, have the same Relief as may be had against Parish Collectors.

[note]

The Minister of every Parish shall preach at the Churches and Chapels in the Parish, and at such other Places as the Vestry shall think fit.

[note]

Where any Minister shall be suspended, and the Vestry shall employ any other Minister to officiate during such Suspension, they may allow such Minister what Part of the Salary they think proper.

[note]

The Minister of every Parish shall perform Divine Service in a Surplice or Gown.

[note]



For further Particulars relative to the Clergy, see CHURCHWARDENS, MARRIAGES, LORD'S DAY.

COIN.

THERE is no Law of this Province which regulates and settles the Value of Gold and Silver Coin, but its Value is increased or diminished according to the Plenty or Scarcity of it; which must ever be the Case in all Countries where the Balance of Trade is against them, and all Bullion bought up as Merchandise for Remittance for Want of a proper Staple.

[note]

The Paper Bills of Credit of this Province which have been emitted from Time to Time, are the chief Medium of our Trade, and the only Support of Public Credit; and the Restrictions lately laid on the Colonies by the British Parliament to prevent their emitting any more, will be severely felt. The only temporary Relief seems to be that adopted by the Legislature of this Province, of issuing Debenture or Treasury Notes, which intitle the Bearer on a Day certain, to the Sum expressed in such Note, to be paid out of the Treasury. But when there is no Money in the Treasury these Notes cannot be paid, and therefore pass current on the Credit of the Country only.

[note]

The several Acts of Assembly that have emitted these Bills have made it Felony, without Benefit of Clergy, to counterfeit them, except the Emissions of 1748 and 1754, which make the second Offence only Felony.

[note]

And by an Act of Assembly lately passed, it is made Felony to counterfeit the current Bills of Credit of any of the Provinces.

On Information to a Justice of the Peace, that any Person has passed counterfeit Bills of Credit of this Province, or has a Number of them in his Possession, he may issue his Warrant to apprehend him, and examine into the Matter; and if it appears that he conterfeited such Bill, or passed them knowingly with Intent to defraud, or has been aiding or assisting in the counterfeiting or passing them, he must commit such Offender to the Gaol of the District, and proceed as in other Felonies.





By the Statute 5 Eliz. cap. 11. clipping, washing, rounding, or filing, any current Money of the Realm, is made High Treason.

[note]

And by another Statute 18 Eliz. cap. 1. impairing, falsifying, or making light such current Money, is Treason: These are Crimes of the same Nature with clipping, but differ in the Punishment, viz. they work no Corruption of Blood.

Counterfeiting the Coin was Treason by the Common Law: And ’tis held that washing, filing, diminishing, sealing, or debasing, for Lucre, is counterfeiting, within the Statute of 5 Eliz. and the Counsellors, Consenters, and Aiders, within the Statute of 18 Eliz. Nels. 158.

Uttering false Money, knowing it to be so, is not High Treason, but a great Misdemeanor, and finable: But if he who utters such doth know who coined it, or if he supplied the Coiner with coining Tools, or with Silver, and Money is coined therewith; in either of these Cases, he who utters it is guilty of High Treason, because he is aiding and assisting to the coining. Keel. 33.

[note]

Clergy is taken away from all Offenders in coining, by the Statutes 5 & 18 Eliz. and they shall not be bailed.

[note]

The Judgment for these Offences is, that the Offender shall be drawn to the Gallows, and there hang'd.

If sufficient Cause of Suspicion appear to a Justice of Peace against any Person for coining, counterfeiting, falsifying, or debasing the current Coin; or if Information thereof be made before him, by one or more credible Witnesses, upon Oath, he may issue his Warrant to apprehend the Offender.

To all Sheriffs, Constables, and other his Majesty's Officers within the County of —

WHEREAS I am credibly informed that several Pieces of the current Coin of this Province have been lately counterfeited [or debased, as the Case is] and that there is great Cause to suspect A. B. of the Parish of — in the County aforesaid, Blacksmith, to have coined or debased the same: These are, in his Majesty's Name, to command you, and every of you, to apprehend the said A. B. and to bring him before me, or some other Justice of this County, to answer the Premises, And you are also hereby





required to make diligent Search in the Houses, Lodgings, and Dwelling-Places of the said A. B. and in all other suspected Places, for coining Tools, Instruments, or Materials, Coin, Clippings, Filings, Shavings, or Bullion, of Gold, Silver, or other Metals; and if you shall find any such, that then you seize and bring the same before me, or some other Justice of the Peace of this County, to whom you shall make Return how you have executed this Warrant. Herein fail not at your Perils. Given under my Hand and Seal, this — Day of —

[note]

Upon this Warrant the Officer may break open Doors, Locks, Trunks, &c. to take the Party, or to search; but he ought first to declare the Contents of his Warrant, and require the Doors to be opened.

The Offender being taken, and brought before a Justice, is to be by him examined, but not upon Oath; and his Examination, the Depositions of Witnesses, and all other Matters appertaining thereto, shall be by such Justice certified to the Superior Court, as in other criminal Cases, and the Prisoner must be committed.

To the Keeper of the Gaol of the District of —

[note]

I SEND you herewith the Body of A. B. late of the Parish of — in the County aforesaid, Blacksmith, taken by my Warrant, and brought before me, upon Suspicion of (or being charged with) counterfeiting [or debasing, as the Case is] the current Coin of this Province: And you are hereby commanded, in his Majesty's Name, to receive the said A. B. into your said Gaol and Custody, and him there safely to keep, until he shall be thence discharged by due Course of Law. Given, &c.

Any Person endeavouring to utter false Money, and discovered in the Fact, may be stopped and detained till a Constable or Officer can be procured, who must arrest the Party, and carry him before a Justice of Peace, to be examined: If the Offence appears to be through Ignorance, Inadvertency, &c. and the Party be not of evil Fame, he may be discharged or bailed, as the Circumstances of the Case appear to the Justice; but if there be Proof, by Witnesses, or pregnant Circumstances, that the uttering was willful, and that he is aiding or assisting to the coining or counterfeiting, he is not to be bailed, but committed.

[note]



To the Keeper of the Gaol of — District.

THESE are, in his Majesty's Name, to command you to receive into your Gaol the Body of A. B. late of — Blacksmith, taken by C. D. a Constable of this County, for uttering false Money, knowing it to be such, and for being aiding in counterfeiting the current Coin of this Province, wherewith he is charged; and that you safely keep him in your said Gaol and Custody, until he shall be thence discharged by due Course of Law. Given, &c.

[note]

If a Man has received false Money, he may exhibit to his Majesty's Attorney-General an Information against the Party who uttered it, and thereupon he may be indicted: Or upon Complaint to a Justice of Peace, and Oath before him made, that such Person did utter such false Money, the Justice may issue his Warrant against the Offender, and proceed as is above directed.

COMMITMENT.

ALL Persons apprehended for Offences which are not bailable, and all Persons who neglect to find Bail for Offences which are bailable, must be committed. 2 Haw. 116.

[note]

If a Justice is impowered by any Statute, or Penal Law, to bind a Person over, or to cause him to do a Thing, and such Person in his Presence shall refuse to be bound, or to perform such Thing, the Justice may commit him, till he shall comply. 2 Haw. 116.

[note]

If a Person be brought before a Justice expressly charged with Felony, on Oath, he must commit or bail him. 2 H. H. 121.

All Felons must be committed to the Gaol of the District where the Offence is committed.

Every Commitment must be in Writing, under Seal, either in the Name of the King, and tested by the Justice, or in his own Name, and must be directed to the Gaoler. It must contain the Name of the Party committed, and the Cause of Commitment; that is, if it is for Felony, the particular Nature thereof must be described, and the Conclusion must be to detain him till delivered by due Course of Law.

[note]



Where a Statute appoints Imprisonment, but does not limit the Time, it must be at the Discretion of the Court. Dalt. 170.

[note]

Commitment by a Court of Record need not be under Seal, as the Record of the Court is a sufficient Warrant. 1 H. H. 584.

If a Gaoler shall refuse to receive a Felon, or take any Thing for receiving him, he shall be punished by the Court. Dalt. 170.

[note]

No Person legally committed for a Crime certainly done, can be discharged by any one but the King, till he be acquitted on his Trial, or an Ignoramus found by the Grand Jury, or none appearing to prosecute him. 2 Haw. 121.

[note]

Mittimus for Felony.

— County, ss.

A. B. Esq; one of his Majesty's Justices of the Peace for the said County. To the Keeper of the Gaol of the District of — Greeting. Whereas C. D. late of — in the said County, Labourer, hath been arrested for Suspicion of a Felony by him, as ’tis said, committed, in stealing — of the Value of — the Property of — of — in the said County, Planter. Therefore, on Behalf of the King, I command you that you receive into your said Gaol the said C. D. there to remain till he be delivered by due Course of Law. Given under my Hand and Seal, this — Day of —

[note]

Mittimus may also be in the Name of the King; but it is good, if it is only under the Hand and Seal of the Justice, as it may be supplied by Averment that it was done by him. 2 H. H. 122.

COMMON LAW.

THE Common Law is the Law of the Land simply, as it was holden before any Act of Parliament altered it; and the King's Courts of Justice are called Common Law Courts. The Common Law, Mr. Jacob, in his Law Dictionary, says, is grounded upon the general Customs of the Realm, and includes the Law of Nature, the Law of God, and the Principles





and Maxims of the Law. It is founded upon Reason, and is the Perfection of Reason, acquired by long Study, Observation, and Experience, and refined by learned Men in all Ages; and is the common Birth-Right of the Subject, for the Safety of his Goods, Body, Fame, Wife, Children, and Life itself. Co. Lit. 97, 142. Treatise of Laws, p. 2.

[note]

Sir Matthew Hale, in his History of the Law, says, the Common Law is the Common Rule for Administration of Justice, and affects the King's Prerogatives, and the Rights and Liberties of the Subject. It is by it that the Determinations in the King's Courts are guided; and it directs the Course of Descents of Lands, the Nature of Estates, and the Manner and Ceremony of conveying them from one to another; the Forms, Solemnities, and Obligations of Contracts; and also regulates the Process, Proceedings, Judgments and Executions, of our Courts of Justice.

The first Rise of the Common Law may be truly dated from King Alfred, the first sole Monarch of England after the Heptarchy; he collected all the Saxon Laws into one Book, and commanded them to be universally used throughout the Kingdom; hence, as they were then common to all, they were called Common Laws. But William the Conqueror finally established them, by abrogating some, and adding others of his own Country; which are now what is called the Common Law.

[note]

This short Account of the Common Law is inserted here by Way of Information to those who do not fully understand the Nature of it; and as this Book is intended to convey to the unlearned Reader all the Instruction possible within the Compass of so small a Work, I thought it not foreign to my Purpose to add in this Place some Account of the Civil Law.

The Civil Law is the particular Law of every Nation or Common Wealth, peculiarly established to itself; but chiefly that of the old Romans, who compiled it from the Laws of Nature and of Nations; of which the Twelve Tables were the chief Foundation, and is at this Day nearly the Common Law of all well regulated Kingdoms. The unwritten Civil Law is Custom by Consent of the People, without any particular Establishment; the Authority whereof is very great. The whole Civil Law is contained in Four





Books, the Code, the Pandicts, or Digests, the Institutes, and the Novels. The whole Matter therein contained relate either to the Persons in the Common Wealth, or the Things belonging, or not belonging thereto, or to the Actions whereby Men claim su h Things as are due to them by the Law. It is allowed in the two Universities of England, where Students are taught it, and it is used in foreign Treaties among Princes.

[note]COMMON PRAYER.

THE Book of Common Prayer was first compiled and established by Act of Parliament, Anno 1548, in the second Year of King Edw. 6.

[note]

Afterwards it was reviewed, and some Alterations were made by a Committee of Learned Men, at the Command of Queen Elizabeth, in the First Year of her Reign; and the Book so amended, confirmed, and appointed to be read in Churches, by every Minister of each respective Church, by an Act of Parliament passed the same Year. 1 Eliz. cap. 2.

Some Alterations and Additions were made in the Reign of King James the First, by Authority of that King's Commission; and these, together with some Prayers and Thanksgivings, since added by the succeeding Kings and Queens, to be used on certain Public Fasts and Festivals, are still of Force, by Virtue of the Royal Proclamation.

The Statutes of 2 & 3 Edw. 6. cap. 1. 5 & 6 Edw. 6. cap. 1. and 1 Eliz. cap. 2. inflict divers Punishments upon Persons neglecting to use, or depraving the Book of Common Prayer, or using any other Form of Public Prayer.

[note]

But I shall here consider the Penalties of the last mentioned Statute only; they are,

1. The Punishment of a beneficed Minister, convicted by Verdict, or Confession, of the Fact of Refusing to use it, or depraving it, or using any other Form.

[note]

1st Offence, Loses his Spiritual Livings One Year, and shall be imprisoned Six Months.





2d Offence, Deprivation and Imprisonment One Year.

3d Offence, Deprivation and Imprisonment for Life.

2. The Punishment of a Minister, not beneficed, depraving it, or using any other Form.

1st Offence, One Year's Imprisonment.

2d Offence, Imprisonment for Life.

3. The Punishment of any other Person, convicted of depraving it, or procuring a Minister to use any other Form, or interrupting him in saying the Service.

[note]

1st Offence, 100 Marks Fine, or One Year's Imprisonment.

2d Offence, 400 Marks Fine, or One Year's Imprisonment.

3d Offence, forfeits all his Goods and Chattels, and to be imprisoned for Life.

Prosecution within a Year and Day after the Offence.

But the Offences against this Statute, are not cognizable before a Justice of Peace.

CONJURATION. See Witchcraft.

CONSPIRACY.

THIS is a Confederacy, or Agreement, between Two, or more, that they will contrive and aid each other falsely and maliciously to indict an innocent Man of Felony. 34 Edw. 1. cap. 2. Moor. 562.

[note]

The Party grieved hath Two Remedies, after he is acquited by Verdict of the Jury, to punish the Offenders:

1. By Writ of Conspiracy; which is a Civil Action, wherein Damages may be recovered: But this Action will not lie, unless it appears that the Accusation was false, malicious, voluntary, and the Conspiracy declared, by Prosecution, and that the Party was lawfully acquitted. Noy. 116.

[note]

2. By Indictment, at the Suit of the King; and if the Offenders are hereupon convicted, the Judgment is,





They shall loose their free Law; that is, they shall never be of a Jury, nor Witnesses in any Case, nor shall appear in Court, but by Attorney: Their Lands, Goods, and Chattels, shall be seized into the King's Hands, their Trees cut down, and their Bodies imprisoned. Stam. P. C. 175, 6.

[note]

But there have also been other Judgments given against these Offenders, and they have been condemned to stand in the Pillory, with Papers denoting their Offence; to have their Ears cut off; to be branded in the Face; whipped, imprisoned; and to pay grievous Fines.

It hath been also held, that a Consederacy, falsely and maliciously to indict another, is punishable by Indictment, tho’ nothing is by the Conspirators put in Use. 1 Lev. 62.

If any Number of Negroes or other Slaves, Three or more, shall at any Time consult, advise, or conspire to rebell, or make Insurrection, or plot or conspire the Murder of any Person, every such Slave convicted thereof, shall suffer Death as a Felon.

[note]CONSTABLE.

IS an Officer of great Antiquity, of whom the Common Law takes Notice; and it requires, that he be endued with these Three Qualifications, viz.

[note]

1. Honesty; to execute his Office truly, without Malice, Affection, or Partiality.

[note]

2. Science; to know what he ought to do.

3. Ability, as well in Substance, or Estate, as in Body; to execute his Office diligently, and not thro’ Impotency, or Indigence, to neglect it: For if poor Men, who live by the Labour of their own Hands, are elected to this Office, they will rather permit Felons, and other Malefactors, to escape, and neglect the Execution of their Office in other Points, than intermit their Labour, by which their Wife and Children are to be maintained. Leigh. Phil. Can. 47, 48.





He is likewise to be Resident, were chosen; and if he is not thus qualified, Two Justices, upon Complaint, may appoint another. Nels. 177.

[note]

Anciently the High-Sheriff did appoint Constables, but afterwards they were nominated by the Justices, in Sessions, and are now, with us, by the respective County Courts.

[note]

Every Justice of Peace may swear a Constable; and upon just Cause may remove One, and appoint Another, who may be discharged, or continued, by the next County Court. Dalt. 57.

[note]

If a Constable die, or move out of the District, Two Justices may chuse and swear another, who is to continue in the Office ’till the next County Court, who may either approve him, or appoint another, and swear him. Nels. 177. Dalt. 58, 59.

[note]

Justices of Peace, Clergymen, Lawyers, Physicians, Infants, Madmen, Poor, Old, and Sick or Lame Persons, are not to be appointed Constables. 1 Vent. 344.

[note]

If the Person appointed Constable, upon lawful Notice given, refuses to be sworn, or to serve, the Justices may bind him over to Court; and there he may be indicted and fined for his Contempt. 2 Roll. Rep. 78.

[note]

A Constable may make a Deputy, but must be accountable for his Miscarriage; unless the Deputy is sworn, and allowed by the Court. 1 Roll. Rep. 274.

[note]

He is to continue in his Office One Year; if longer, upon his Petition to the County Court, he may be discharged.

[note]

The Authority and Duty of a Constable in executing Warrants to him directed, is shewn under those respective Titles which require his Service; and in such Cases where particular Directions are requisite: I shall therefore, in this Place, collect such general Rules and Observations only, as may be necessary or useful to direct him in the due Execution of his Office; and these may be reduced to Two Heads:

1. His Duty in serving and executing Warrants, Precepts, Executions, or other Writs, or Process, to him directed by Magistrates, having lawful Jurisdiction.

2. His Authority and Duty, by Virtue of his Office, as a Minister of Justice, without other Warrant.





1. As to Warrants, or other Process: He must not dispute, but execute them; and if the Justices exceed their Authority, the Constable is excused: But if a Justice of Peace issues his Warrant where he has no Authority, or where he is not a proper Judge, or where it is plain that the Warrant is mistaken in the Penalty; or if the Constable is commanded to inflict Corporal Punishment, contrary to Law; or where a Constable is to execute Something out of his County: In such, and the like Cases, he must not execute the Warrant; and may be punished, if he does. Dalt. 445.

[note]

But, upon Delivery of a lawful Warrant, the Officer is bound forthwith to execute it with Speed and Secrecy, and according to the Tenor of the Warrant, in all Respects; if he neglects, or refuses so to do, he may be indicted and fined, for his Contempt.

A sworn Officer need not shew his Warrant, but he ought to tell the Party the Contents, and thereupon arrest him, by taking Hold of his Person; if he resists, the Officer may command others, to aid and assist him, and may justify the Beating of the Offender; and if he flies, or escape, may pursue him, tho’ into another County, and bring him back to the Justice who granted the Warrant. Nels. 187.

[note]

It is sufficient Notice for an Officer to pronounce the Words of an Arrest, viz. I arrest you in the King's Name, &c. And the Party, at his Peril, ought to obey him, tho’ he does not know him to be an Officer: For, if he have no lawful Warrant, the Party grieved, may have his Action of false Imprisonment against him. Dalt. 444.

But if he lets the Person go, upon his Promise that he will return, and appear before the Justice, he cannot retake him upon that Warrant: And if the Offender fails to appear, or escapes, the Officer is liable to answer for such Escape.

[note]

If there are Two Persons of one Name, and the same Addition, and the Constable takes the wrong Person, ’tis no false Imprisonment: But if he apprehend a Person without Warrant, and obtain One afterwards; or if a Warrant is against a particular Person, by Name, and the Constable apprehends another, who is realy the Offender, such Taking is wrongful, and the Party may have his Action of false Imprisonment; tho’, in this last Case, he will recover but little Damages. Nels. 187.

[note]



In Cases of Treason, Felony, or Breach of the Peace, a Constable, having a Warrant from a Justice of Peace, may break open an House to take the Criminal; but first he ought to require the Opening of the Doors, and to acquaint the Persons in the House, for what Purpose he came thither. Dalt. 444.

[note]

A Man may be be indicted, fined, and bound to Good-behaviour, for Contempt of a Justice's Warrant: For it is the King's Process. Ibid. 445.

[note]

When a Constable has executed any Warrant, or other Writ, or Precept, to him directed, he is to make his Return upon the Back of such Warrant, executed; but if it is not executed, he is to return the Truth of the Case, at his Peril: For he is a sworn Officer, of whom the Law takes Notice, and bound to make due Return of every Process to him directed; if he neglects so to do, or makes a false, or insufficient Return, he shall be liable to the Action of the Party grieved, for Damages, and to Indictment, and Fine, at the Suit of the King.

[note]

If a Warrant be General, to cause the Party to appear before One, or any other Justice of Peace, it's in the Election of the Constable to go before such Justice of the County as he thinks fit, and there to make Return of his Warrant; but if it be Special, to appear before any particular Justice, or Justices, or at any certain Time, or Place, he must obey: For he is bound to pursue the Effect of his Warrant.

When any Person is apprehended for a Criminal Offence, with or without Warrant, the Constable may keep him in his own House, or put him in the Stocks, or otherwise secure the Party, according to his Quality, and the Nature of his Offence, ’til he can procure Assistance to carry him before a Justice, or convey him to Gaol, as the Case may require: And every Person, by the Constable summoned, in the King's Name, to aid and assist him herein, ought forthwith to obey; the Party neglecting, or refusing, may be indicted and fined for his Contempt, and liable to further Penalties, if the Offender escapes.

[note]

A Constable may justify the detaining an Offender for a Day, by the Command of a Justice of Peace, without a Warrant, the Justice not having Opportunity then to examine him. moor 408.

[note]



1. Every Constable, as a Minister of Justice, and Conservator of the Peace, is bound, by Virtue of his Office, and without other Warrant, to execute his Authority, upon certain emergent Occasions, either Public, or Private.

[note]

In Affrays, Quarreling, Fighting, or whatever is a Breach of the Peace, if it be in his Presence, he may apprehend the Offenders, and carry them before a Justice.

Such as are about to quarrel, he may command to depart, or to keep the Peace; if they refuse, he may apprehend them; and if they make Resistance, he may justify the Beating them, and call Others to his Assistance; and if either he, or any of his Assistants, happen to be killed, ’tis Murder in the Party making Resistance.

If there be quarreling in a House, he may break open the Doors, to see the Peace kept. Dalt. 446.

And if any Person shall be wounded in Fighting, he may apprehend the Offender, tho’ the Fighting was not in his Presence, and carry him before a Justice, who may bail, or commit him.

If Notice be given him of any Quarreling, or Fighting, and he refuses to go and keep the Peace, he may be presented by the Grand Jury, and fined for such Refusal.

He may take away Arms from such who ride, or go, offensively armed, in Terror of the People, and may apprehend the Persons, and carry them, and their Arms, before a Justice of Peace.

He may put a Felon into the Stocks, and lock him in, or put Irons upon him, or bind him, to prevent Escapes, when he is about to carry him before a Justice, or to Gaol.

If he suffer a Felon to escape, before he is actually in Custody, ’tis a Misdemeanor, for which he may be indicted, and fined: But if the Felon was taken, and then the Officer voluntarily suffers him to escape, or destroy himself, it is Felony in the Officer; if the Escape is by Negligence, or Involuntary, it is finable. Cro. 752.

If he discharges any Person taken upon Suspicion of Felony, it is justifiable, if no Felony was committed: But if a Felony has been actually done, he must not discharge the Party apprehended upon Suspicion, tho’





he knoweth him to be Innocent; because it must be done by due Course of Law. Nels. 180.

Upon Notice given to a Constable, that a Felony is committed, together with a Description of the Felon, and which Way he is gone, the Constable must forthwith raise Hue and Cry, by calling upon the Parishioners to assist him, in Pursuit of the Felon, to the next Constable, and so from Constable to Constable, and from County to County; and in the mean Time, the Constable is to take an Inventory of the Offender's Goods, in Presence of the Neighbours, and attested by them: If the Constable refuses to pursue the Felon, he may be indicted, and fined. Cro. 10 Eliz. 654, 655.

[note]

He is bound, by his Office, to endeavour the Taking of Felons, and may raise Men to assist him: He may likewise apprehend, upon Suspicion; and upon Complaint of a Robbery committed, or upon common Fame, may search suspicious Houses. Nels. 181.

If a Felon fly, the Constable may seize, and take at Inventory of his Goods and Chattels, in Presence of the Neighbours, and must pursue the Felon, by raising Hue and Cry from Constable to Constable, and from one Town or County to another: If the Felon is taken in another County, he must be carried before a Justice of that County where taken, and by his Warrant committed to the Common Gaol of the same County.

Every Constable is to assist a Justice of Peace, when required, in removing a forcible Entry, in carrying the Offender to Gaol: If the Constable refuses, he may be committed himself, and fined.

[note]

He may apprehend any Person disturbing the Minister in Time of Divine Service, and bring him before a Justice of Peace.

[note]

He is to suppress all Riots, and such who break the Peace, in any Manner whatever, either in his Presence, or upon Notice given him; and to arrest the Offenders, and bring them before a Justice.

He must endeavour to apprehend Rogues, Vagabonds, and idle Persons, wandring, or begging, or found loitering within his Precinct: If any such are brought to him, by any Person, he must receive him, or her, and cause such Offenders to go before a Justice of Peace.

[note]

By the Common Law, if a Constable shall refuse or neglect to execute his Office, he may be indicted, and punished by Fine and Imprisonment.





For refusing to keep the Peace.

[note]

Not apprehending a Felon, or not raising Hue and Cry to pursue him; suffering him to escape; or to destroy himself.

Refusing to execute the Justice's lawful Warrant, or Command; or shewing any Contempt of his Authority.

Negligence in his Office.

Besides other Penalties, in special Cases, to which he is liable by particular Laws and Statutes.

But as a Constable is punishable for Breach or Neglect of his Duty, so the Law has annexed to his Office several Privileges and Exemptions, as an Encouragement and Reward of his Service.

No Action must be brought against a Constable for any Thing by him done as Constable, except only in the proper County where the Fact was committed; and in Default thereof, the Plaintiff shall be Nonsuit: And if the Defendant be found to be a Constable, and in Execution of his Office, the Clerk shall thereupon tax double Costs: Also, a Constable has Liberty of pleading not guilty, for any Thing done in his Office by himself; and for all Persons in his Assistance, he may plead not guilty, for what they have done by his Command. Style 164.

The Office of a Constable is not determined by the Death of the King: For their Authority is by the Common Law, and not by Commission. Cock 8. Rep.

A Constable may execute a Warrant in any other County, if indorsed by a Justice of that County, and may carry the Offender before such Justice. If the Offender gives Bail, the Recognizance is by the Constable to be returned to the Clerk of the County where the Offence was committed. But if not bailable, the Constable must carry him to the County where the Offence was committed. 24 Cr. c. 55.

By the Laws of this Province, the several County Courts, at the first Court to be held after the First Day of January, yearly, shall appoint as many Constables of the County as they judge necessary; which Constables shall take the following Oath, to wit,

[note]

YOU shall swear, That you will well and truly serve our Sovereign Lord the King in the Office of a Constable; you shall see, and cause his Majesty's Peace to be well





and duly preserved and kept, according to your Power; you shall arrest all such Persons as, in your Sight, shall ride or go armed offensively, or shall commit or make any Riot, Assray, or other Breach of his Majesty's Peace; you shall do your best Endeavour, upon Complaint to you made, to apprehend all Felons and Rioters, or Persons riotously assembled; and if any such Offenders shall make Resistance with Force, you shall make Hue and Cry, and shall pursue them, according to Law; you shall faithfully, and without Delay, execute and return all lawful Precepts to you directed; you shall well and duly, according to your Knowledge, Power, and Ability, do and execute all other Things belonging to the Office of a Constable, so long as you shall continue in this Office. So help you God.

[note]

Besides this Oath, they should also take the Oaths of Government, requisite for the Qualification of all Public Officers.

Every Constable so appointed and sworn, shall have and exercise the same Powers as the Constables of the Kingdom of England.

If any Constable so appointed, shall neglect to qualify within Ten Days after Notice of such Appointment; unless he can snew sufficient Reasons for his Neglect, to be admitted by the Justices who may grant their Warrant to levy the Fine; he shall forfeit Fifty Shillings; recoverable before Two Justices; to the Use of the County; provided the Notice of his Nomination be in Writing, signed by the Clerk of the Court, and served on him by the Sheriff or Constable.

No Person in Possession of any Office, civil or military; no Member of Assembly, nor any one who has served in any such Station; no Person who has served as Constable within Five Years before, nor any Person exempt by the Laws of England, shall be obliged to serve as Constable.

Any Justice of the Peace may administer to the several Constables appointed by the Court, the Oath directed by this Act for their Qualification.

On the Death or Removal out of the District of any Constable, the Justices, or any one of them, may appoint and swear another, who shall act till the County Court; when he may be continued, or they may appoint another.





If any Constable shall refuse to serve any Precept, to him directed, by any Justice, he shall be fined at the Discretion of the Court, on Complaint of the Party grieved; to be paid to the Complainant.

In the Absence, or for Want of a Constable, a Justice may direct any Precept to any indifferent Person, not being a Party, who is obliged to execute the same; under the like Penalty as for a Constable refusing, recoverable, and applied as aforesaid.

Every Constable shall be exempt from the Payment of all Taxes for himself only, and from working on the Roads, for the Year he shall be Constable.

Constables refusing to convey Runaway Servants or Slaves, delivered to them by a Justice's Warrant, and to give Receipt for such Runaway, to forfeit Twenty Shillings; recoverable by a Warrant from any two Justices, to the Use of the Parish.

All Ferry Keepers are to give immediate Passage to all Constables and their Assistants, charged with conveying Runaways, without Ferriage.

Constables Fees.

For summoning a Jury of Inquest, for every Juror,0 0 7
For serving a Warrant,0 2 8
For every Execution,0 2 8
For every Attachment,0 2 8
For summoning Evidences on the Trial of Warrants, for every Person summoned,0 1 0

[note]

Every Constable of the County is obliged to attend at the County Court, to assist in attending on the Grand and Petit Juries, and other Services of the Court; but may be excused from serving the whole Court, if their Service should be thought unnecessary.

CORONER.

IS an ancient Officer of Trust and great Authority, ordained to be a principal Conservator, or Keeper of the Peace, to bear Record of the Pleas of the Crown, and to inquire of the Death of a Man, slain or killed violently, maliciously, wilfully, accidentally, or by any Means whatsoever, other than the Course of Nature, or in the Execution of Public Justice. Cook 2 Inst. cap. 17.

[note]



The Statute of Westm. cap. 10. requires every Coroner to be a Knight; that is, a Freehold of Lands within the same County, sufficient to qualify him for this Office; He was to be elected by the Freeholders, by Virtue of a Writ directed to the Sheriff; and if he have not Estate sufficient to answer the Fines, and other Duties, imposed on the Coroner, in Matters relating to his Office, the County shall be answerable for such Fines. F. H. N. B. 186.

The Common Law requires him to be a Person having Knowledge, Experience, and Ability of Body, as well as Estate, sufficient to support the Duty and Dignity of his Office. 2 Inst. 174.

The Oath of a Coroner.

YOU shall swear, That you shall trully serve the king and his People, in the Office of a coroner and as one of his Majesty's coroner in the County of — and therein you shall diligently and truly do all Things appertaining to your said Office, according to the best of your Knowledge and Power, both for the King's Profit, and the Good of the inhabitants within the said County, taking such for as you ought by Law. So help you God.

[note]

His Office and Authority is two-fold;

1. Ministerial.

2. Judicial.

1. As a Minister of Justice, he is to execute and return all Process to him directed; and therefore, where an Exception is to the Sheriff, viz. that he is a Party in the Suit, or of Kin, or Tenant to either Party, or if any Default is in him by Partiality, or otherwise: in these or like Cases, the Process shall be directed to the Coroner, and by him executed and returned: But then, if the original Process is directed to him, all other Process in the same Suit must be so likewise, tho’ another, and more indifferent Sheriff, be appointed, whilst that Suit is depending. Nels. 201.

[note]

If such Process is directed to the Coroners. Two may return it, tho’ there are more in the County, but One cannot; because, in this Case, they are but as one Officer: And therefore, if one arrest a Debtor, and he escapes, the Action shall be brought against both. 3 Lev. 399.





When any civil Process shall be directed to the Coroner, he is to execute and return the same, in like Manner as the Sheriff should have done; he shall have the like Fees as are due to the Sheriff for like Services; and he is by Law invested with the same Power and Authority, and equally liable to answer for any Neglect, false Return, or Escape.

2. He is a Judicial Officer, and therefore cannot make a Deputy: By the Statute 3 Edw. 1. he is enjoined to see the dead Body, and an Inquisition otherwise taken is void. Stam. P. C. 51.

[note]

When he hath Notice given him to view the Body, he must issue his Precept, directed to the Constable, or any sworn Officer of the Precinct wherein the Body lies, to summon a Jury to appear before him at a certain Day and Place, to execute such Things as shall be given to them in Charge. Nels. 200.

If he doth not come, upon Notice given him of the casual Death of any Person; or if he omit or neglect to take an Inquisition; or if he do not bind over the Witnesses to appear and give Evidence; or do not certify the Recognizances, Depositions, and Inquisition taken before him; or if there is any Practice with him to suppress the Evidence for the King: For any of these Causes, he may be discharged of his Office, and fined. 1 Vent. 182.

By the Statute 3 Eliz. cap. 9. if any Sheriff, Coroner, or other Officer, for Prayer, Fear, or Affinity, shall conceal or consent, or procure to conceal any Felony, and will not do his Office, and shall be thereof attainted, he shall have one Year's Imprisonment, and pay a grievous Fine to the King; and if he hath not whereof to pay, shall have Three Years Imprisonment.

Precept to summon a Jury.

— County, ss.

To A. B. Constable of — County.

THESE are, in his Majesty's Name, to command you to summon Twenty Four Freeholders, of the Parish of — in this County, to appear before me, C. D. Gent. one of his Majesty's Coroners of the said County, Tomorrow Morning, by Ten of the Clock, at the House of E. F. [or at such Place where the dead Body lies,] in the Parish and County aforesaid, to execute such Things as shall be given to them in Charge, on the Behalf of





our Sovereign Lord the King; and that you also be then there, to shew how you have executed this Precept. Given under my Hand, this — Day of —

[note]

Upon Appearrance of the Jury, at the Time and Place appointed, the dead Body then being in View before them, the Officer is to make Return of his Warrant, and call the Jury to answer to their Names, to the Number of Twelve; one of whom is by the Coroner to be appointed Foreman, and sworn.

The Foreman's Oath.

YOU shall diligently enquire, and true Presentmen make, of such Things as shall be given to you incharge, according to your Evidence.

[note]

So heip you God.

The Rest of the Jury.

THE same Oath which H. I. your Foreman, hath taken on his Behalf, you, and every of you, shall well and truly observe and keep on your Parts.

So help you God.

After the Jury is sworn, the Coroner is to give them a Charge, to inquire who, and whence the Deceased was, how, and in what Manner he came by his Death, and whether the Homicide were occasioned by Felony or Mischance; if feloniously, whether by his own, or another's Act; if by his own, whether he were of sound Sense and Memory at the Time of committing the Fact; and if it be sound that he then was of sound Sense and Memory, what Goods and Chattels he was possessed of, or the Value of them, to the Knowledge of the Jury, at the Time of his Death: But if he was killed by another, who was the Principal, and who Accessary, how, when, and where he died; by what Weapon or Means his Death was occasioned; whether the killing was malicious and voluntary, or by Necessity, or Accident, or Chance Medley; and if the Offenders are fled; and whether they have been pursued by Hue and Cry or not: If the Homicide happened by Mischance or Misfortune, and was involuntary, whether by the Act of God or of Man; or by what immediate Cause, whether by Hurt or Fall, or any other Means; that it may appear, whether any Deodand is by Law forfeited or not.

[note]



Then the Witnesses are to be called, and sworn.

Oath of a Witness.

THE Evidence which you shall give to this Inquest, concerning the Death of K. L. here lying dead, shall be the Truth, the whole Truth, and nothing but the Truth.

[note]

So help you God.

After all the Witnesses have been examined, the Jury are to consider the Evidence, and find the Fact; which being by them agreed upon, the Foreman delivers the Verdict to the Coroner, who thereupon records the Inquisition, by an Instrument in Writing, indented, under his own Hand and Seal, and the respective Hands and Seals of the Jury, according to the Form hereafter specified.

Every Inquisition taken by a Coroner and Jury, must be upon View of the Body; and if that he is buried before he comes, he may cause it to be taken up again: But if the Body cannot be found, then he has no Authority; and in this Case, the Matter may be presented to the Justices in Court, and there found by the Jury; and this will intitle the King to a Forfeiture of the Goods. 2 Lev. 141. 1 Roll. Rep. 217.

The Depositions of the Witnesses must be taken in Writing, attested under their Hands; and if the Case requires it, they are to be bound over to appear at the next Superior Court of the District, there to give Evidence. The Coroner is to take and record their Examinations severally, which may be in this Form:

THE Examination of N. O. of — P. Q. of — taken upon Oath before me, C. D. Gent. one of his Majesty's Coroners for the said County, this — Day of —, at the House of E. F. in the Parish of G. and County aforesaid, upon View of the Body of R. S. then and there lying dead, viz.

[note]

The said N. O. maketh Oath, that, &c.

and in like Manner, of the other Witnesses, respectively.

Sworn before me, C. D.

Recognizance for Witnesses to appear and give Evidence.

— County, ss.

MEMORAND. That on the — Day of — Anno Dom. — N. O. of — and P.





Q. of — personally came before me, C. D. Gent. and of his Majesty's Corners for the said County of — and severally acknowledged themselves indebted to our Sovereign Lord King George the Third, in the Sum of — Pounds each: To be levied of each of their Goods and Chattels, Lands and Tenements, respectively, to the Use of said Lord the King, his Heirs and Successors; upon Condition, that if they the said N. O. and P. Q. shall personally appear before the next Superior Court of the District of — on — the — Day of — and do then and there give such Evidence as they, and each of them, respectively, know against T. V. of — for the Murder of R. S. wherewith he is charged by an Inquest before me taken upon View of the Dead Body of the said R. S. and that they do not depart without Leave of the said Court. Then this Recognizance to be void; or else to remain in Force.

[note]

Acknowledged before me, C. D.

This Recognizance, the Examination of the Witnesses, and the Inquisition taken by the Coroner, must be by him certified to the next Superior Court to be held for the District.

But if the Offenders are fled, and escaped, this also must be found by the Jury, and recorded upon the Coroner's Inquest; and such Inquisition is to be certified to the said Court, that thereupon Process of Outlawry may issue against the Party fled.

If the Jury impannelled by the Coroner is sworn, and the Witnesses not ready, he may bind the Jury, by Recognizance, to appear at another Day, and issue his Precept to cause the Witnesses then to appear.

To A. B. Constable, &c.

— County, ss.

YOU are hereby commanded forthwith to summon N. O. of — and P. Q. of — personally to appear before me, C. D. Gent. one of his Majesty's Coroners of this County, Tomorrow Morning by Ten o'Clock, at the House of E. F. in the same County, to testify their Knowledge concerning a certain Homicide suspected to be done upon the Body of R. S. there lying dead [or as the Case appears to be, by the Circumstances] and to be examined on the Behalf of our Sovereign Lord the King; and that you also be then there to shew how you have executed this Warrant. Given under my Hand, &c.

[note]



The Day and Place of Appearance of the Jury is at the Discretion of the Coroner, as the Circumstances of the Case may require: After the Jury, upon View of the Body, have been once sworn to try the Fact, it's not necessary to meet again at the same Place, or to suffer the Corps to lie unburied, to the Annoyance of the People; but the Jury may meet, and hear the Evidence, at such Time and Place as the Coroner shall think fit to direct.

[note]

The Coroner may find any Nusance which occasioned the Death of a Man; as if a Bridge is in Decay, and by Reason of a Breach the Person fell, and was drowned, or otherwise killed; or that the Death was occasioned by the Breach of a Mill-Dam, or by Trees, or by other Nusance lying in the Highway, &c. But it must also be found who is bound, by Law, to repair such Bridge, or to remove such Nusance, that the County or Party by whose Neglect the Nusance was suffered to continue, may be amerced. Allen 51, 52.

[note]

If by Neglect, or Partiality in the Coroner, the Inquisition is not taken according to Law; or if Oath be made of Misdemeanor in the Coroner or Jury, as that they did not find according to their Evidence, &c. the the Party grieved may have a Writ of Inquiry issued from the Secretary's Office, and directed to the Sheriff, to make better Inquiry of the Death, and all Matters relating thereto: But this Writ will not be granted without special Cause shewn, and appearing upon Oath.

[note]

Inquisition of Murder.

— County, ss.

INQUISITION indented, taken at — in the County aforesaid, the — Day of — in the Year of our Lord — before me, C. D. Gent. one of the Coroners of the said County, upon View of the Body of R. S. late of — then and there lying dead; and upon the Oath of A. B. C. D. &c. good and lawful Men of the Parish of — in the said County of — who being charged and sworn to inquire how, and in what Manner, the said R. S. by his Death came; upon their Oaths, do say, That on the — Day of — in the Year, and at the Place aforesaid, T. V. late of the Parish of — in the County of — Gent. by Force and Arms, did assault the said R. S. being then there in the Peace of God, and of our Lord the King; and that the said T. V. with a tertain





Sword, of the Value of — which the said T. V. in his right Hand then and there held, feloniously, and of his Malice forethought, did give the aforesaid R. S. one mortal Wound in the left Part of his Breast, of the Breadth of One Inch, and the Depth of Five Inches, of which Wound the said R. S. instantly died; and so the aforesaid T. V. him the said R. S. then and there feloniously killed, and wilfully murdered, contrary to the Peace of our Sovereign Lord the King, his Crown and Dignity: And further, the said Jurors, upon their Oaths, do say, That the aforesaid T. V. at the Time of committing the Felony and Murder aforesaid, had no Goods or Chattles, Lands or Tenements, in the County aforesaid, to the Knowledge of the Jurors aforesaid. In Testimony whereof, as well I the said Coroner, as the Jurors aforesaid, to this Inquisition have severally put our Seals, the Day, Year, and Place, first above-mentioned.

[note]

All Inquisitions of Homicide, by Murder, Manslaughter, Self-Defence, Misfortune, or Casualty, are to be returned in like Form, as to the Beginning and Conclusion of the Inquisition; but varying in the Matter of Fact and Circumstances, as these appear upon Evidence to the Jury, who are to inquire, and return in their Verdict.

[note]

1. The Name of the Deceased.

2. The Time and Place of the Death.

3. The Name, and Place of Abode of the Party, or Parties, by whom the Death was occasioned; who was Principal, and who Accessary.

4. The Manner.

5. Whether the Act was wilful or accidental.

And if the Deceased was killed by his own Act, whether at the Time of committing the Fact, he was of sound Sense and Memory; or whether he was mad or lunatic.

These Matters are to be plainly expressed by the Jury, in their Verdict.

In all Cases of Homicide, where any Forfeiture accrues to the King, the Jury must inquire, and return, to the best of their Knowledge, the Value of the Goods and Chattels, Lands and Tenements, within the County, of the Party liable to such Forfeiture: But where nothing is by Law forfeited, this Clause may be omitted.

[note]



Coroners remain Conservators of the Peace, within the County where they are Coroners, notwithstanding the King's Death; but the Commission of Justices of Peace is determined by the Death of the King. Dalt.

[note]

By the Laws of this Province, there shall be one able and substantial Freeholder in every County appointed Coroner by the Governor or Commander in Chief, by Commission under his Hand and Seal; which Coroner shall enjoy the same Powers and Authorities as the Coroners of England.

[note]

In Case of Death, Disqualification, or any other Means whereby any County may be without a Sheriff, the Coroner, or where there may be Two, the nearest to the Place of Election, shall receive the Writs of Election, and take the Poll for the Election of Members of Assembly, in the same Manner that the Sheriff could.

If at any Time there shall be no Sheriff in any County, the Coroner shall serve all Process, untill a Sheriff shall be appointed.

Coroners Fees.

For taking an Inquisition on a dead Body0 16 0
For each and every Juror on such Inquisition,0 1 4
Other Services the same as the Sheriff.

[note]

Fees on every Inquisition to be paid out of the deceased Person's Estate, if sufficient; if not, to be paid by the Country.

COUNTERFEIT. See COIN, CHEAT, FORGERY.

COUNTIES.

THIS Province is at present divided into Thirty Five Counties; the Justices whereof hold a Court for each of the said Counties quarterly, for the Trial of all Matters civil or criminal, within their Jurisdiction.

[note]

The Justices of every County are to purchase an Acre of Land, for building thereon a Court-House for such County.

[note]

Where there is not Provision made, the Justices of every County shall tax the Inhabitants thereof for





building a Court-House, Prison, and Stocks, in such County; and may employ Persons to keep the same in Repair.

[note]

The several Acts of Assembly which have been passed from Time to Time for establishing the several Counties in this Province, and for ascertaining the several Boundary Lines thereof, are too numerous to be inserted here, but may be found in the Body of the Provincial Laws, under the Title COUNTIES.

COURTS.

THE first Establishment of Courts in this Province was one General or Supreme Court, which was held at Edenton. Afterwards, when the Country became thicker settled, and more extensive, a General Court was held at Newbern, and Circuit Courts in several Districts established. But this Constitution was attended with many Difficulties, the Suitors and Attornies of the Circuit Courts being obliged to attend the General Court, where all Issues were made up, and then transmitted to the Circuit Courts for Trial. To remedy this Inconvenience, and for the more easy Administration of Justice in this very extensive Province, the Plan of Superior Courts in certain Districts was struck out, and has since been found the best Method of facilitating distributive Justice to the numerous and very wide extended Inhabitants of this Province.

[note]

Very unhappily for us at present, the above wise Regulation of Superior Courts is suffered to expire, by the Legislature keeping the Law that established it temporary; and from some restrictive Instructions to his Excellency the Governor, regarding the Mode of issuing Attachments, they have been prevented from re-enacting of it for some Time past; but as ’tis probable no other Form of Government will take Place in this Province, we shall here give our Readers an Account of that Regulation, as it stood before the Expiration of the Law.

The Law for establishing Superior Courts in this Province, divided it into Six Districts, viz. the Wilmington, Newbern, Edenton, Halifax, Hillsborough, and Salisbury Districts; in each of which a Superior Court





for the Trial of all Causes, civil and criminal, was established, to be held twice a Year, and to sit Ten Days; and were to consist of the Chief Justice and Two Associates, Men of Ability and learned in the Law, to be commissioned by the Governor: Which Courts were to have Cognizance of all Suits and Pleas, real, personal, and mixt; and of all Suits and Matters relative to Legacies and filial Portions, Estates of Intestates, and Pleas of the Crown, whether brought before them by Original Process or by Writ of Error, or Appeal from the County Court, or by any other Means; and thereon to give Judgment and award Execution: Also to make Orders for issuing Letters Testamentary and Letters of Administration; and to have, use, and exercise, the same Rights and Privileges, Powers and Authorities, as his Majesty's Courts of Westminster in England.

[note]

The Court also had the Power of taking the Probate of Deeds, or Letters of Attorney, and taking the private Examination of Feme Coverts.

The Determinations in this Court were final, without Appeal, except in civil Cases of the Value of 300 l. Sterling, where an Appeal lies to the King and Privy council.

Courts in every County are also established, by the name of Inferior Courts of Pleas and Quarter Sessions, and are held quarterly on the Days by Law appointed, and are to continue Five Days, if the Business require it. They take Cognizance of all Causes at Common Law, where the Cause of Action is above Five Pounds, and under Twenty Pounds; also of all Petit Larcenies, affaults Batteries, Breaches of the Peace, and Trefpasses, where the Title of the Freeholder does not come in Question, and other Misdemeanors of an inferior Nature. All filial Portions, Legacies, distributive Shares of Intestates Estates, and other Matters thereto relating, where the Sum does not exceed Twenty Pounds.

[note]

The Justices of every Inferior Court are to hold an Orphans Court on the First Day of every Court held after the First Day of January, yearly, when they are to examine into all Matters relative to them and their Estates, appoint Guardians, inquire into all Abuses of Estates committed to them, and may at any Time make every Regulation for the better Management of them and their Estates. The County Court may also





bind out poor Orphan Children to Trades, and also base-born Children. The County Courts also grant Licences to Tavern Keepers, and regulate the Rates of Liquors; receive and determine all Complaints between Masters, Servants and Apprentices; order Roads to be laid out, Bridges to be built, Public Mills to be erected, and regulate and determine all Matters that arise within the County relative to the Peace and good Government thereof. All Matters in the Inferior Courts are reversible by the Superior Courts, by Appeal, or Writ of Error.

[note]

A Court of Chancery is held by his Excellency the Governor, or Commander in Chief, and his Majesty's Council of this Province; for the Regulation of which see Chancery.

[note]

A Court of Oyer and Terminer and Gaol Delivery is held in each District of this Province, by Commission from his Excellency the Governor to the Chief Justice and Two Associates in each District, for the Trial of all Criminal Offences, and Breaches of the Peace.

[note]

Courts of Vice-Admiralty are also held in this Province, by a Judge of the Admiralty appointed by the Governor; which Courts are held when, and where Business require it, and take Cognizance of all Matters relative to the Admiralty.

[note]

The Governor and his Majesty's Council of this Province, constitute a Court of Claims, which sit occasionally, for granting his Majesty's Lands in this Province, and hearing and determining all Differences that may arise concerning the granting thereof to particular Persons.

[note]

No Inferior Court can take Cognizance of any Act done out of their Jurisdiction; if they do, and the Matter appear upon Record, the Proceedings will be erroneous. Style 128.

[note]

If a Court, which hath no Jurisdiction of a Cause depending therein, do proceed to Judgment in it, the Judgment is void, and Action lies against the Judges who give the Judgment, and any Officer who executes their Process under them. But where they have Authority, and give an ill Judgment, the Party who executes the Judgment shall be excused. Ibid. 130.

A Judge of any Court shall not be excepted against, or challenged; or have any Action brought against him for what he does as a Judge. 1 Inst. 249.

[note]



Judges are not punishable for a mere Error in Judgment; and no Action will lie against a Judge for an erroneous Judgment, or for a wrongful Imprisonment. 2 Haw. 4.

[note]CRIMINALS.

BY an Act of Assembly of this Province, no Person shall be committed to Gaol for any Criminal Offence, until he shall be examined before some Magistrate; who, if the Party shall be bailable, shall admit him to Bail, and shall record the Examination of the Party, with the full Matter in Evidence, both against and for him, with all concurring Circumstances, and shall bind over the Informer, in Recognizance with good Security, to appear and prosecute; and also bind over all Evidences, to give Evidence, to the next Superior Court, or Court of Oyer and Terminer that is to be held for the District. The Record of which Proceedings must also be returned to such Court, on Penalty of Five Pounds for every Neglect; recoverable in any Court of Record, Half to the King, and Half to the Informer.

[note]

When any Person shall be brought before a Justice of the Peace for any Criminal Offence, and the Matter thereof, on Examination, appear to be Felony, or any Offence touching Life or Member, such Justice must commit the Offender to the Gaol of the District wherein the Felony was committed, and then proceed to bind over the Informer or Prosecutor to appear and prosecute, and the Evidences in the Matter to give Evidence, to the next Superior Court, or Court of Oyer and Terminer, that may be held for such District.

Mittimus for a Criminal.

— County, ss.

To the Sheriff, or Keeper of the Public Gaol of the District of —

I HEREWITH send you the Body of A. B. late of the Parish of — in this County, Labourer, who stands charged with breaking and entering the House of C. D. of — and stealing from thence — to the Value of — [if for any other Felony or Crime recite it]. Him you are to receive into your said Gaol, and safely keep,





until he shall be thence discharged by due Course of Law. Given under my Hand and Seal, this — Day of — 1774.

[note]

Recognizance for the Witnesses to appear, and give Evidence.

— County, ss.

BE it remembered, that on this — Day of — A. B. and C. D. of — came before me, E. F. Esq; one of his Majesty's Justices of the Peace for the said County, and severally acknowledged themselves to be indebted to our Sovereign Lord the King, his Heirs and Successors, in the Sum of — Pounds each: To be levied on their several Goods and Chattels, Lands and Tenements, to the Use of our said Lord the King, his Heirs and Successors; on Condition, that each of them, the said A. B. and C. D. do personally appear before the next Superior Court to be held for the District of — [or Court of Oyer and Terminer] then and there to give such Evidence, on Behalf of the King, as they severally may know, against E. F. concerning the Matters wherewith he stands charged, and do not depart the said Court without Leave: Otherwise this Recognizance to be of full Force.

[note]

Acknowledged before me, A. B.

If a Witness refuses to answer, on Oath, or to enter into Recognizance, he may be committed, or bound to good Behaviour.

Witnesses for the Prisoner are to be summoned, at his Request, by the Sheriff, by Subpœnas issuing from the Clerk of the Court where he is to be tried.

In all Trials for capital Offences, Prisoners may have Council, and where they have not, the Court is of Council for them.

For the particular Manner of trying Criminals, see SESSIONS.

Gaolers Fees for Criminals.

For Commitment,0 2 8
For finding a Prisoner one Pound of Bread and one Pound of dressed Meat, two Quarts of fresh Water, and keeping the Gaol clean, One Shilling per Day.
For Releasement,0 2 8

[note]

These Fees to be paid by the Criminal, if able; if not, they are generally allowed by the Committee of Claims at every Session of Assembly.





For the Trial of Slaves committing capital Offences, see SERVANTS AND SLAVES.

CUSTOMS.

THIS Word bears a large Signification:

[note]

Custom is one of the main Triangles of the Laws of England; which are divided into,

1. Common Law.

2. Statute Law.

3. Custom. Co. Lit. l. 2. cap. 10.

Of every Custom, there are three essential Parts: Reasonableness, Time out of Mind, and continual peaceable Usage, without Interruption: By these it obtains the Force of a Law. Davis. Rep.

Custom also signifies Duties, Subsidies, or Impositions, upon Wares and Merchandizes, granted by common Consent; that is, by Authority of the Legislature, to the King, for Public Uses: These be the ancient and right Customs. Co. 2 Inst. cap. 30.

There are no Customs or Duties laid by the Legislature of this Province on any imported Commodities, except Four Pence per Gallon on all Rum, Wine, or other spirituous Liquors, imported from any Part except Great Britain; which Duty is to be paid by the Importer, to the Collector of the Port where imported, and applied to the Fund for sinking the Bills of Credit emitted in the Year 1748.

[note]

The British Parliament have, from Time to Time, hid several Duties or Imposts upon Commoditics imported into, and exported from, the American Colonies.

[note]

All Wines imported from Madeira, or any of the Western Islands, into any of the Colonies, pay a Duty of Seven Pounds per Ton, by the Importer.

All French Wines imported from Great Britain, pay Ten Shillings per Ton, by the Importer.

All Tobacco exported from any of the Colonies Coastwise, and not directly to Great Britain, pay a Duty of One Penny per Pound, by the Exporter.

Molasses imported pay a Duty of One Penny per Gallon.

Teas imported pay a Duty of Three Pence per Pound.

There are many other Duties on Imports and Exports





into and from the Colonies, but as they concern only the Officers of the Customs, whose Duty it is to receive them, ’tis needless to mention them here.

DEBT.

ALL personal Matters whatsoever in Difference between Parties, where the Demand is under Five Pounds, come properly under this Head, as the same is cognizable before One Justice of the Peace, who may determine the same, enter up Judgment, and award Execution thereon. Saving to any Party who may think himself aggrieved by any such Judgment, the Right of Appeal to the County Court.

[note]

Upon Complaint made to a Justice of the Peace for any Matter cognizable before him, he issues his Warrant, directed to a Constable, to take the Defendant. Upon Appearance of the Parties, the Justice instantly proceeds to hear and determine the Cause, upon the Evidence produced; and thereupon enters up Judgment, according as the Right of the Cause and Matter in Law appear to him.

[note]

When a Warrant is granted, the Justice, upon Request of the Plaintiff, requires the Constable to summon Witnesses; If the Defendant, upon Service of the Warrant, or before the Trial, desires his Witnesses to be summoned, the Officer ought to summon them, without other Warrant.

A Warrant may be General, or Special, at the Discretion of the Justice: General, to appear before him, or any other Justice; Special, before himself, at a Day and Place certain, limited in such Warrant. But it will be good Discretion in a Justice not to grant a Special Warrant, without very good Reasons.

When an Officer serves a General Warrant, he may carry the Defendant before any Justice he pleases, and must there make Return of the Warrant executed; but a Special Warrant he must return to the Justice who granted it, and carry the Defendant before him, at the Day and Place therein commanded.

If an Officer serves a Warrant on a Person, and takes his Word to appear before a Justice on a certain Day, and he fails to come, the Justice ought not to give





Judgment against him, but appoint another Day for Trial, and give the Defendant Notice by the Constable. If he then fails to appear, on Oath made by the Constable of the Service of the Warrant, the Plaintiff, on proving his Account, ought to have Judgment for his Debt, and Execution thereon. If the Plaintiff at any Time should fail to appear, and prosecute his Suit, the Justice will, in like Manner as above, order the Constable to give him Notice of another Day of Trial; and if he then fails to appear, the Warrant ought to be dismissed, and the Defendant have Judgment for his Costs.

Upon every Judgment, the Party in whose Favour the Judgment is given, must have his Costs by him expended in the Suit taxed by the Justice who enters up the Judgment.

Sheriffs or Constables Fees upon Warrants, to be levied by Distress on the Party at whose Suit the Business is done.

For serving a Warrant,0 2 8
For serving an Execution, or Attachment,0 2 8
For summoning a Witness,0 1 0

[note]

These Fees to be repaid by the Party against whom Judgment shall be given.

Warrant for Debt.

— County, ss.

To A. B. Constable, or any lawful Officer of the said County.

WHERE AS Complaint hath been this Day made to me, C. D. Esq; one of his Majesty's Justices of the Peace for the said County, by E. F. of — that G. H. of — Labourer, stands justly indebted to him in the Sum of — by Account [or Note] and delays Payment thereof. These are therefore, in his Majesty's Name, to require you to bring the said G. H. before me, or some other Justice of the said County, to answer the above Complaint. And that you return how you have executed this Warrant. Given under my Hand and Seal, this — Day of — 1774.

[note]

Summon I. K. and L. M. Witnesses for the Plaintiff.

If it be a Special Warrant, say,

— before me at my House in this County, on — the — Day of this Instant, by Ten o'Clock in the Forenoon,





to answer the above Complaint. And that you have then and there this Warrant. Given, &c.

Judgment for the Plaintiff.

— County, July 10, 1774.

A. B. against C. D. } in Debt.

THE abovesaid Plaintiff and Defendant this Day personally appeared before me, and were heard in the above Cause, and their Witnesses examined. It is thereupon considered, that the said A. B. recover against the said C. D. and Judgment is accordingly granted to the said Plaintiff for the Sum of — with Costs.

[note]

Serving the Warrant,028
Summoning two Witnesses, for the Plaintiff,020
048

Judgment by Confession.

THE Defendant in the above Suit appeared before me, and confessed Judgment. It is therefore granted to the said Plaintiff for the Sum of — with Costs.

[note]

Serving the Warrant, 0 2 8

Upon Non-Appearance of the Defendant.

THE Defendant failing to appear, and the Plaintiff proving his Debt, Judgment is therefore granted for him, against the said Defendant, for the Sum of — with Costs.

[note]

Judgment for the Defendant.

RECITE the first Judgment as far as the Examination of the Cause, then, It is therefore considered, that the said Complaint be dismissed; and that the Defendant have Judgment for his Costs expended in this Suit, against the said Plaintiff.

[note]

Summoning two Witnesses, for the Defendant,020





If the Plaintiff fails to appear.

THE Plaintiff not appearing to prosecute his Suit, it is therefore ordered, that his Complaint be dismissed, and that the Defendant have Judgment for his Costs expended in this Suit.

[note]

Execution against the Body, for the Plaintiff.

GEORGE the Third, by the Grace of God, of Great-Britain, France, and Ireland, King, Defender of the Faith, &c. To the Sheriff, or any lawful Officer, of — County, Greeting. We command you that you take the Body of E. F. late of — if to be found within your Bailiwick, and him safely keep, so that you have his Body before G. W. Esq; one of our Justices of the County aforesaid, the — Day of — to satisfy C. D. the Sum of — which the said C. D. lately, before our said Justice, bath recovered against him for Debt; also the Sum of — which to the said C. D. before the same Justice, were adjudged for his Costs in that Suit expended; whereof be is convicted, as appears to us of Record: And that you have then there this Writ. Witness the said G. W. the — Day of — in the — Year of our Reign.

[note]

For the Defendant.

as before — To satisfy E. F. — Pounds, which to the said E. F. before our said Justice, were adjudged for his Costs, about his Defence, in a certain Complaint made by the said C. D. expended; whereof he is convicted, &c. as before.

These Writs may be directed to the Sheriff or Constable.

If the Writ is executed, the Debtor must be committed to the County Gaol, there to remain, without Bail or Mainprize, till Satisfaction made for the Debt, or until discharged by the Creditor, or by Law. If the Officer suffers him to go at large, though he return afterwards, it is an Escape; and such Officer shall be liable to answer all Debts with which the Prisoner stood charged in Execution.

Return of the Writ executed.

BY Virtue of this Writ, to me directed, I have taken the within named E. F. whose Body, before the Justice within named, at the Day and Place within contained,





I have, ready to satisfy C. D. of the Debt and Costs within mentioned, as within to me is commanded.

[note]

But if the Writ is not executed, return,

THE within named E. F. is not found in my Bailiwick (or Precinct.)

It is in the Election of the Party for whom a Judgment shall be given, to take Execution against the Body or Goods of the Debtor.

Execution against the Estate, for the Plaintiff.

GEORGE, &c. To A. B. a Constable of — County, Greeting. We command you, that of the Goods and Chattels of E. F. late in your Precinct, you cause to be made the Sum of — which C. D. lately before G. W. Esq; one of our Justices of the said County, hath recovered against him for Debt; also the Sum of — Pounds, which to the said C. D. before the same Justice, were adjudged for his Costs in that Suit expended; whereof he is convicted, as appears to us of Record: And that you have the said Monies before our said Justice, the — Day of — to render to the said C. D. the Debt and Costs aforesaid. And that you have then there this Writ. Witness, &c.

[note]

For the Defendant.

as before—The Sum of — which to E. F. lately before G. W. Esq; one of our Justices of the said County, were adjudged, for his Costs about his Defence, in a certain Complaint at the Suit of the said C. D. expended; whereof he is convicted, as appears to us of Record: And that you have, &c. [as before] to render to the said E. F. his Costs aforesaid. And that, &c.

If two or more Writs of Execution shall be delivered to the Officer against the same Person, that which was first delivered shall be satisfied first.

[note]

When Judgment shall be granted against any Person by a Justice, and either of the Parties shall be dissatisfied with such Judgment, he may appeal to the next County Court; first giving Security to prosecute such Appeal with Effect. Which Appeal the Court shall determine the first Court, in a summary Way, without any further





Process; and give Judgment thereon, the Party cast paying all Costs, to be taxed by the Court. The Justice who tried the Warrant is not to sit on such Appeal.

The Party or Parties against whom any Judgment shall be given, where the Sum is above Forty Shillings, may be allowed a Stay of Execution for Two Months, upon giving Security for Payment of the Debt; which Security shall be, as the Principal, liable to the Execution of the Plaintiff, if the Debt is not discharged at the Day.

[note]

Where Appeals are granted, the Justice, at the Bottom of the Judgment, should say,

From which Judgment the Plaintiff [or Defendant] appeals to the County Court, and gives A. B. and C. D. Securities for the same.

Which Securities must sign the Appeal, and the Justice must return it to the next County Court.

Likewise, where Stay of Execution is granted, the Justice, at the End of the Judgment, may say,

On which Judgment the Defendant prayed Stay of Execution for Two Months, giving A. B. and C. D. Securities for the Debt.

Which Securities must also sign the Judgment.

DECLARATION.

A DECLARATION is the Cause of Complaint in Writing, of the Plaintiff in a civil Action, against the Defendant. It is an Impeachment of some Wrong done him, and must therefore be plain and certain, setting forth the Plaintiff and Defendant's Names, the Nature and Cause of the Action, the Manner of it, and the Damage received. 1 Inst. 17.

[note]

In all personal Actions, the Day, Year, and Place, ought to be expressed in the Declaration, but not in real Actions. In Actions of Debt, upon a Bond, the Declaration must alledge the Place where the Bond was made; and in Actions of Covenant, no more of it need be mentioned than where the Breach is assigned; and





a Plea of Non est Factum allows a Covenant to be broke. 2 Cro. 369.

In Actions of Slander there should be no unnecessary Inducement, and Actions upon general Statutes should conclude, contrary to the Form of the Statutes, &c. but in Actions for Words, the Words spoken are to be laid expressly in the Declaration. Cro. Eliz. 645, 857.

In Actions upon the Case, upon Assumpsit, the whole Promise is to be declared, or the Plaintiff will be nonsuit. 1 Danv. Abr. 266.

Where a Declaration is defective, it is sometimes aided by the Statutes of Jeoffails; but this is only in Matters of Form, and not in Substance, 5 Rep. 35.

By the Act of Assembly for establishing Inferior Courts in this Province, the Plaintiff in every Suit must file his Declaration on the first Day of the Court, or first calling of the Cause in Court; and at the same Time serve the Defendant with a Copy, if required.

’Tis unnecessary here to give Forms of Declarations, as it could be done in few Instances only, special Actions on the Case varying according to their Nature; they could only serve the Gentlemen of the Law, who have other Books to collect them from.

DEER.

NO Person shall kill or destroy any Deer running wild in the Woods, in this Province, between the Fifteenth Day of February, and the Fifteenth Day of August, in each Year; on Penalty of forfeiting Five Pounds.

[note]

If any Servant or Slave, by Order of his Master, Mistress, or Overseer, shall kill any Deer, such Master, Mistress, or Overseer, shall pay the said Penalty.

And if any Servant or Slave, of his own Accord, shall kill, destroy, or buy, any Deer contrary to this Act, he shall, on Conviction, before any Justice of the Peace, receive Thirty Lashes on his or her bare Back, well laid on, by Order of such Justice; unless any Person will become bound to pay the above mentioned Fine for such Servant or Slave, within Six Months, to the Churchwardens of the Parish, to the Use of the said Parish.





The above Penalties to be recovered by a Warrant from any Justice of the Peace, and applied one Half to the Churchwardens of the Parish, the other Half to the Informer. Saving to all free People the Right of Appeal to the County Court, where the Offence is committed; which Court shall finally determine the Matter.

[note]

If any Person shall be convicted of killing Deer, or having green Deer Skins or Venison in his House, Camp, or Possession, between the Fifteenth of February, and the Fifteenth of July, yearly, he shall forfeit Forty Shillings; recoverable before a Magistrate, by Warrant, and applied Half to the Churchwardens, and Half to the Informer.

[note]

Persons, in whose Houses green Deer Skins have been left without their Knowledge, not subject to the Penalties of this Act.

Every Person hunting and killing Deer, and leaving the Carcasses in the Woods, to forfeit Forty Shillings; recoverable by a Warrant from a Magistrate, and applied as above.

[note]

No Person, not being Owner of Slaves, nor possessed of One Hundred Acres of Land in the Province, or tending 10,000 Corn Hills, at least Five Feet Distance, shall hunt or kill Deer, on Penalty of Ten Pounds, besides his Gun, or the Value thereof, recoverable by Action of Debt or Information, in any Court of Record, by the Informer; and on Conviction, shall suffer One Month's Imprisonment, without Bail or Mainprize.

[note]

Upon Action brought for the above Penalty, the Sheriff shall take two sufficient Securities for the Defendant's Appearance; which may be deemed special Bail, as in other Cases, and the Sheriff liable on Failure, who may surrender the Principal at any Time before final Judgment.

Overseers of Slaves may on their Employers Lands, hunt and kill Deer, or on the King's waste Lands, within Five Miles of such Overseer's Place of Residence.

If the Defendant in any Action on this Act, shall fail to give Bail, the Sheriff may commit him to the Gaol of the District.

No white Person shall hunt with Dogs, or otherwise, or drive or kill any Deer or Game on any Persons Lands, without Leave, on Penalty of Five Pounds; recoverable by Action of Debt, in the County Court, by the Owner of the Land.

[note]



Warrant to apprehend a Person for killing Deer.

— County, ss.

To A. B. Constable.

WHEREAS Complaint hath been this Day made to me, C. D. Esq; one of his Majesty's Justices of the Peace for the said County, that E. F. of the said County, Labourer, hath lately killed Deer, contrary to the Act of Assembly in that Case made and provided. These are therefore, in his Majesty's Name, to require you to apprehend and bring before me, or some other Magistrate of this County, the said E. F. to be dealt with as the Law directs. Given under my Hand and Seal, this — Day of —

[note]

If the Complaint be for having green Deer Skins in the House, or for leaving Carcasses in the Woods, the Warrant may be varied accordingly.

DEMURRER.

DEMURRER is a Stop put to a Cause, for some Matter to be settled by the Judges, and the Point in Dispute must be a Matter in Law, and determined by the Court before any further Proceedings can be had. Matters of Fact are always determinable by Juries.

[note]

Judges are to proceed to give Judgment in Causes, after Demurrer joined, according to the Right of the Cause, without Regard to Defects of Proceedings, except such as are expressed in the Demurrer. But this is not to extend to Indictments in criminal Prosecutions. 27 Eliz. cap. 5.

If a Defendant pleads when he may demur, he shall not afterwards take Advantage in Arrest of Judgment, Writ of Error, &c. Plowd. 182.

Demurrer to Evidence is where a Question of Law arises thereupon; in which Case, if the Plaintiff brings Evidence to prove a Fact, and the Desendant demurs to it, the Plaintiff must join in Demurrer, or wave his Evidence.

Form of a Demurrer to a Declaration.

AND the said C. D. by — his Attorney, comes and defends the Force, Injury, and Damages, and





whatever else he ought to defend, when and where the Court will consider thereof; and the said C. prays Judgment of the Declaration of the said A. because he saith, that the said Declaration, and the Subject Matter therein contained, are insufficient in Law for him the said A. to maintain his said Action against the said C. To which Declaration the said C. is under no Necessity, or in any wise bound by the Law of the Land to answer; and this he is ready to verify. Whereupon, for Want of a sufficient Declaration in this Case, the said C. prays Judgment of the said Declaration, and that the same may be quashed, &c.

[note]

Form of the Joinder in Demurrer.

AND the said A. saith, that notwithstanding any Thing above alledged by the said C. the said Declaration ought not to be quashed; because he saith, that the said Declaration, and the Subject Matter therein contained, are good and sufficient in Law, for him the said A. to maintain his said Action against the said C. which said Subject Matter contained in the said Declaration, the said A. is ready to verify and prove in such Manner as the Court shall think fit: And because the said C. hath made no Answer thereto, nor hitherto in any Manner denied the same, the said A. prays Judgment, and that his Damages occasioned by the Premises may be awarded to him, &c.

[note]DEODAND.

THIS is when any moveable Thing inanimate, as a Cart, Boat, &c. or a Beast animate, as a Horse, Ox, &c. cause the untimely Death of any Person, without the Will, Offence, or Fault, of the Person killed; but it must be on the Land, and not on the Sea. Co. 3. Inst. 57.

[note]

This being found by Inquisition before the Coroner, is forfeited to the King, as being the Price of Blood, to be distributed in Alms.

It is founded upon ancient Custom, and seems to owe its Original to the Notion of Purgatory: For when a Person came to a sudden and untimely Death, without having Time to confess his Sins to a Priest, and to receive Absolution; the Thing which occasioned the Death became a Deodand, viz. was given to the





Church, to be distributed in Alms to poor Churchmen, to pray the Soul of such deceased Person out of Purgatory.

As the Forfeiture of Deodands was first founded on Superstition and Ignorance, it has not latterly met with much Indulgence, especially in America; where very few Instances have happened of Deodands having been found by the Coroner, and claimed.

DIVINE SERVICE. See DISSENTERS.

DISSENTERS.

PROTESTANT Dissenters took their Rise with the Reformation of the Church of England, and first discovered themselves Anno 1568, in the 11th Year of Queen Elizabeth. Some Ceremonies which had been used in Times of Popery, were thought fit to be continued, as useful to beget Reverence in Holy Exercises, and in Hopes to bring those of the Roman Communion more easily to comply with that Reformation.

[note]

But some Divines complained of this, as a Compliance with Popery; and alledged, that since we had reformed from the Errors of that Church, we ought to have none of their Ceremonies continued in ours. These Differences were small in the Beginning, as not touching any Matters of Faith or Belief, and founded only on the Opinions of particular Men, relating to certain Ceremonies in the Exercise of Divine Worship. But being patronized by some Men in Power, and encouraged by many of the People, became fixed, and settled into Factions and Parties: And Lectures were set up in most Cities and Market-Towns of England, wherein zealous and able Men were maintained, by voluntary Contribution of the richer Sort of People, to preach, in Opposition to the Rites and Ceremonies of the Church of England.

It seemed reasonable to Queen Elizabeth, in whose Reign the Reformation was established, to maintain the ancient Government in the Church, and to continue their Ceremonies; To this Effect, several Acts of Parliament were made, requiring Uniformity in Divine Worship, on Pain of divers Penalties and Disabilities;





and the like Statutes have been since made, enlarged, and amended, in succeeding Reigns, with Intent to reconcile Men to one uniform Method of religious Service. But this being found impracticable, by Reason of the great Variety of Opinions, settled, in many, by Education; in others, upon conscientious Scruples; it appeared reasonable to the Legislature, after the Revolution, to remit some Severities laid upon Protestant Dissenters by former Acts, and to tolerate them in the Exercise of Christian Worship, without being compellable to use the Book of Common-Prayer, or Liturgy of the Church of England, by Teachers or Ministers of their own Election, tho’ not canonically ordained, and in Places of Assembly apart from their Parish Churches; but by themselves to be procured, and appointed for that Purpose. Hence these Places were vulgarly termed Meeting-Houses, or Conventicles.

These Exemptions and Privileges were first granted them by Act of Parliament, Anno 1688, in the first Year of King William and Queen Mary, confirmed since by other Acts, and are by them enjoyed at this Day.

Although the Dissenters at first were very few, yet they are now become a very considerable Body, and are sub-divided into a great Variety of different Sects, all agreeing in the fundamental Principles of the Christian Religion, but differing in certain Tenets by them respectively held.

Mr. Burn, in his Justice of the Peace, has collected all the Acts and Statutes made in Favour of Protestant Dissenters; from him I shall here insert them.

By the Act of Toleration, made in the first Year of William and Mary, c. 18. it is enacted, that neither the Statutes aforesaid, nor any other made against Papists and Popish Recusants (except the Statutes of the 25 C. 2. c. 2. and the 30 C. 2 st. 2. c. 1. hereafter mentioned) shall extend to any Person dissenting from the Church of England, who shall be qualified in the Manner following:

[note]

They shall at the general Sessions of the Peace, take the Oaths of Allegiance and Supremacy. 1. G. c. 13.

[note]

They shall also there make and subscribe the Declaration of the 30 C. 2. st. 2. c. 1. against Popery.

The Place of Meeting shall be certified to the Bishop of the Diocese, or to the Archdeacon of the Archdeaconcry,





or to the Justices of the Peace at the general or quarter Sessions, and registered in the said Bishop's or Archdeacon's Court, or recorded at such Sessions. And the Register, or Clerk of the Peace, shall register or record the same, and give Certificate thereof to any who shall demand it, for which no more shall be taken than Six Pence.

The Doors of the Place where they meet shall not, during such Time of their Meeting, be locked, barred, or bolted.

They shall not in Writing deny the Doctrine of the Blessed Trinity.

What hath hitherto been observed, regardeth all Protestant Dissenters in general. There are besides certain other Laws, which concern their Teachers and Preachers only. Which are these that follow:

By the 17 C. 2. c. 2. no Person, who shall take upon him to teach or preach in any Meeting or Conventicle, under Pretence of any Exercise of Religion, shall, unless only in passing upon the Road, or unless required by legal Process, come within five Miles of a City, Town corporate, or Borough; nor shall be Schoolmaster, or take any Boarders or Tablers to be instructed by himself or any other, without taking an Oath of Allegiance therein mentioned, on Pain of 40 l. one Third to the King, one Third to the Poor, and one Third to him who shall sue in the Courts at Westminster, Assizes, or Sessions. And two Justices, on Oath of the Offence, may commit them for six Months.

[note]

And by the 22 C. 2. c. 1. if any Person shall take upon him to preach or teach in any Meeting or Conventicle, in other Manner than according to the Practice of the Church of England, he shall forfeit for the first Offence 20 l. and for every other Offence 40 l. And if he be a Stranger, or in the Judgment of the Justice of the Peace before whom he is convicted, unable to pay, it may be levied on the Goods of any Person present.

And by the 13 & 14 C. 2. c. 4. s. 14. no Person shall presume to consecrate and administer the Sacrament before he be ordained Priest, according to the Form and Manner of the Church of England.

Now by the aforesaid Act of Toleration it is provided, that no Person dissenting from the Church of England, in Holy Orders, or pretended Holy Orders, or





pretending to Holy Orders, nor any Preacher or Teacher of any Congregation of dissenting Protestants, shall be table to any of the aforesaid Penalties, who shall be qualified as follows:

He shall at the Sessions take the Oaths aforesaid.

He shall there make and subscribe the Declaration of the 30 C. 2. st. 2. c. 1.

He shall there also declare his Approbation of, and subscribe the 39 Articles, except the 34th, 35th, and 36th (concerning the Quality, Examination, and Subscription of such as are to be made Ministers) and except these Words of the 20th Article, viz. [the Church hath Power to decree Rites or Ceremonies, and Authority in Controversies of Faith, and yet] All which shall be entered of Record in Court; for which the Clerk of the Peace shall have 6 d. and no more.

The Place for Worship shall be certified as before.

The Doors of the Place where he shall preach or teach, shall not be locked, barred, or bolted.

He shall not deny, in his preaching or teaching, the Doctrine of the blessed Trinity.

Furthermore, there are besides the aforesaid general laws, certain other penal Laws affecting the Quakers in particular, namely, these two:

[note]

By the 5th El. c. 1. if any Person shall refuse to take the Oaths of Allegiance and Supremacy, duly tendered, he shall incur a Præmunrie.

And by the 13 & 14 C. 2. c. 1. if any Person, who shall maintain that the taking of an Oath is unlawful, shall refuse an Oath duly tendered, he shall forfeit a Sum not exceeding 5 l. for the first Offence, 10 l. for the second, and for the third shall abjure the Realm, or be transported.

But now by the Act of Toleration, Quakers shall be discharged of the Penalties of these Laws, and of all others made against Popish Recusants, or Protestant non-Conformists, and shall enjoy all other Benefits, under the like Limitations, which any other Dissenters enjoy, on their qualifying themselves in the same Manner as other Dissenters; except that instead of the Oaths at Sessions, they shall be allowed to make and subscribe a Declaration of Fidelity, and to subscribe a Profession of their Christian Belief) which are inserted under the Title OATHS.)





And as to Anabaptists in particular, it is enacted by the said Act of Toleration, that whereas some dissenting Protestants scruple the baptising of Infants,—Every Person in pretended Holy Orders, or pretending to Holy Orders, or Preacher, or Teacher, that shall take the Oaths, and make and subscribe the Declaration, and subscribe the 39 Articles, except as in the Case of other dissenting Teachers as before, and except also Part of the 27th Article, touching Infant Baptism, shall enjoy the same Privileges as other dissenting Teachers.

[note]

Besides the Exemption from Penalties, his Majesty's Protestant Subjects are by the Act of Toleration intitled to certain Privileges; which are of two Kinds. 1. Such as concern all Protestant Dissenters in general. 2. Such as concern their Teachers in particular.

1. As to all Protestant Dissenters in general.—They shall not be prosecuted in any Ecclesiastical Court, for or by Reason of their not conforming to the Church of England.—But this shall not exempt them from paying of Tithes, or other parochial Duties, or any other Duties to the Church or Minister, nor from any Prosecution in any Ecclesiastical Court, or elsewhere, for the same.

[note]

Moreover, if any Person dissenting from the Church of England, shall be appointed to the Office of High Constable, Petit Constable, Churchwarden, Overseer of the Poor, or any other parochial or ward Office, and such Person shall scruple to take upon him any of the said Offices in Regard of the Oaths, or any other Matter or Thing, required by the Law to be taken or done, in Respect of such Office, every such Person shall and may execute such Office by a sufficient Deputy by him to be provided, that shall comply with the Laws on this Behalf. Provided, that the Deputy be allowed and approved by such Persons, and in such Manner, as such Officers should by Law have been allowed and approved.

2. As to their Teachers or Preachers.—Every Teacher or Preacher, in Holy Orders, or pretended Holy Orders, that is a Minister, Preacher, or Teacher of a Congregation, that shall take the Oaths, and subscribe the Declaration and Articles as aforesaid, shall be thenceforth exempted from serving upon any Jury, or from being chosen or appointed to bear the Office of Churchwarden, Overseer of the Poor, or any other parochial or ward Office, or other Office in any Hundred, City, Town, Parish, Division, or Wapentake.

[note]



But this seems clearly not to extend to Quaker Teachers or Preachers; for they are neither in Holy Orders, nor pretended Holy Ooders. It is true, by a subsequent State of the 7 & 8 W. Quakers are exempted from serving on Juries; but neither by that, nor any other Act, are any Quakers exempted from serving the Office of Churchwarden, Overseer of the Poor, or other parochial or ward Office, by themselves, or a sufficient Deputy to be by them provided.

No Clause in the Toleration Act shall give any Ease or Benefit to any Popish Recusant, or to any that shall deny, in Preaching or Writing, the Dostrine of the Trinity. 1 W. c. 18. s. 17.

And every Justice of the Peace may at any Time require any Person that goes to any Meeting for the Exercise of Religion, to make and subscribe the said Declaration, and to take the said Oaths (or if Quakers, the Declaration of Fidelity) and upon Refusal thereof, such Justice shall commit such Person to Prison, and shall certify his Name to the next Sessions; and if he shall refuse again to make and subscribe the Declaration there, he shall be taken for a Popish Recusant Convict, and suffer accordingly. Id. s. 12.

The Toleration Act shall not extend to the Statute of the 25 C. 2. c. 2. which requires, that all Persons admitted to civil or military Offices, as is therein mentioned, shall receive the Sacrament according to the Usage of the Church of England, and subscribe the Declaration against Transubstantiation.

The Toleration Act shall not extend to the Statute of 30 C. 2. st. 2. c. 1. which disables Persons from sitting in either House of Parliament, or coming to Court, who shall not subscribe the Declaration therein expressed, against Popery.

If any Person dissenting from the Church of England (not in Holy Orders, or pretended Holy Orders, or pretending to Holy Orders, nor any Preacher or Teacher of any Congregation) who should have been intitled to the Benefit of the Toleration Act, if he had duly taken, made and subscribed, the Oaths and Declaration, or otherwise qualified himself as required by the Act, shall be prosecuted on any of the Penal Statutes, from which Protestant Dissenters are exempted by the said Act; shall at any Time during such Prosecution, take, make, and subscribe the said Oaths and Declaration, or being a





Quaker, shall qualify according to that Act, either in the Manner prescribed by that Act, or before two Justices, who shall take and return the same to the next Sessions, to be there recorded; such Person shall be intitled to the Benefit of the Act, as fully as if he had qualified himself in the Time prescribed by the Act; and shall from thenceforth be discharged from all the Penalties and Forfeitures incurred by Force of any of the aforesaid Penal Statutes. 10 An. c. 2. s. 8.

And any Preacher or Teacher, duly qualified, shall be allowed to officiate in any Congregation, although the same be not in the County where he was so qualified, provided that the Place of Meeting hath been dul certified, and registered, or recorded; and such Teacher or Preacher shall, if required, produce a Certificate of his having so qualified himself, under the Hand of the Clerk of the Peace where he was qualified; and shall also, before any Justice of such County where he shall so officiate, make and subscribe such Declaration, and take such Oaths as are mentioned in the Act of Toleration, if thereunto required. 10 An. c. 2. s. 9.

If any Mayor, Bailiff, or other Magistrate, shall wilfully resort to, or be present at any public Meeting for religious Worship, other than of the Church of England, in the Gown, or other peculiar Habit, or attended with the Ensigns belonging to his Office, he shall be disabled to hold the same, or any other Public Office. 5 G. c. 4. s. 2.

No Quaker shall be permitted to give Evidence in any criminal Cause, or serve on Juries, or bear any Office or Place of Profit in the Government. Stat. 7 & 8 W. 3. & 10 An. c. 2.

But he may be appointed Constable, or chosen to any Parish Office, which he may execute by Deputy. 1 W. & M. c. 18.

Their solemn Affirmation is to go for an Oath, and to be administered to them, where their Evidence is taken in Cases civil.

I A. B. do solemnly, sincerely, and truly declare and affirm.

[note]

And if what he affirms is false, he shall be punished as in Cases of Perjury.





All Dissenters are liable, equally with other Subjects, to the Payment of Levies, and Maintenance of the established Minister, within their respective Parishes.

For the Fines and Penalties to which Popish Recusant Convicts are liable, see POPERY.

For Marriages by dissenting Clergy, see MARRIAGES.

DISTRESS. See RENT.

DRUNKENNESS. See SUNDAY.

ESCAPE.

THIS is where a Person that is arrested gains his Liberty before he is delivered by due Course of Law.

[note]

All Persons must submit themselves to the Law, and be ready to be justified by it. If they refuse to undergo the Imprisonment which the Law subjects them to for any Crime by them committed, and free themselves from it by Artifice, before the Course of the Law delivers them, it is a high Contempt, and punishable by Fine and Imprisonment. 2 Haw. 122.

Wherever any Person hath another lawfully in his Custody, if he suffer him to go at large before he hath discharged himself of him, he is guilty of an Escape. 2. Haw. 138.

[note]

To make an Escape there must be an actual Arrest, and such Arrest must be justifiable, otherwise ’tis no Escape. 2 Haw. 129.

The Arrest must be for a criminal Offence; and after being acquitted, and detained only for Fees, an Escape then will not be criminal, but no more than the Escape of a Debtor. 2 Haw. 129.

It is an Escape to suffer a Prisoner to have greater Liberty than the Law allows him; as to admit a Person to Bail, whom the Law directs to be kept close Prisoner. 2 Haw. 130.

If a Gaoler let his Prisoner go abroad, and he return again, this is an Escape, because the Prisoner is found out of the Bounds of his Prison. 2 Haw. 130.

If an Officer who hath the Custody of a Prisoner, charged with, and guilty of a capital Offence, knowingly suffers him to escape, or give him his Liberty to





save him from his Trial, or Execution, this is a voluntary Escape; and a negligent Escape is where the Party arrested or imprisoned doth escape against the Will of the Officer, and is not immediately pursued and taken before he has lost Sight of him. 2 Haw. 130. Dalt. c. 159.

If an Officer arrests a Person by Virtue of a Warrant, and then lets him go, on his Promise to return again, he cannot again take him upon that Warrant; but if he returns of his own Accord, the Officer may detain him. Dalt. 169. 1 Haw. 81.

When a Person is lawfully arrested for any Crime, and afterwards escapes, and shelters himself in any House, the Officer may break open the Doors to retake him. 2 Haw. 87.

If a Prisoner be of Record in a Court, and the Gaoler when called on cannot give an Account of him, this is a Conviction of Escape, and the Gaoler may be fined, but not convicted of Felony without Indictment or Presentment. 1 H. H. 599.

If a Felon escapes before Arrest, it is not punishable as Felony, but for his Flight he forfeits his Goods. Hales P. 111.

A Person found guilty upon an Indictment or Presentment for a negligent Escape of a Criminal in his Custody, is punishable by Fine and Imprisonment. 2 Haw. 136, 139.

No Person shall be punishable as for Felony, for the voluntary Escape of a Felon, but he who is guilty of it; and the principal Gaoler is only punishable by Fine for the voluntary Escape suffered by his Deputy; as no one should suffer capitally for the Crime of another. 2 H. 135.

Persons convicted for voluntary Escapes, shall have the Benefit of Clergy; and every Indictment for an Escape must shew that the Prisoner was actually in the Defendant's Custody for such a Crime, and that he went at large; and that he feloniously and voluntarily suffered him to go at large; and must also mention the particular Kind of Felony.

Persons aiding and assisting Felons to escape, or conveying in Disguise any Arms or Instruments to any Prisoner in Gaol, are guilty of Felony, though within the Benefit of Clergy. And Persons aiding the Escape of those committed for Petit Larceny or Debt, guilty





of a high Misdemeanor, and punishable by Fine and Imprisonment.

EVIDENCE.

THIS Word, in legal Understanding, not only contains Matters of Record, and Writings under Seal, and other Writings without Seal, Accounts, and the like, but also the Testimony of Witnesses given to a Jury: And it is called Evidence, because thereby the Point in Issue is to be made evident to the Jury. Co. Lit. l. 3. s. 485.

[note]

A Man convicted of Felony, and after pardoned, or burnt in the Hand, may be a good Witness. Raym. 330, 369.

[note]

The Wife cannot be admitted to give Evidence against her Husband, nor the Husband against his Wife, in any Case, except it be for Treason. Co. Lit. 6. Raym. 1.

But yet a Wife, who is an Heiress, taken away, and by Threats prevailed upon to marry the Man, shall be good Evidence against him; and if convicted upon her Evidence, he shall be hanged. 1 Vent. 243.

One attainted of Perjury, though pardoned, or of Forgery or Conspiracy, is not to be a Witness; yet the Justice may bind such Witnesses to give Evidence, but he is to inform the Judge of their Credit. Nels. 251. Dalt. 408.

Children may give Evidence against their Parents: In Cases of Witchcraft, the Testimony of Infants has been taken against their Mother, and allowed good Evidence. Dalt. 408.

A Person duly set in the Pillory, is not by the Common Law allowed to be a Witness. H. P. C. 263.

If a Felon confess the Fact, he may accuse others of the same Felony; and such Accusation may be taken by a Justice, and the Felon admitted to give Evidence to the Jury. Nels. 251.

The Party accused may make his Defence, by Witnesses upon Oath, and may have the same Process to compel them to appear, as is usually granted for Witnesses against him.





And by the Statute 1 Annæ, any Person produced as a Witness, on Behalf of a Prisoner for Treason or Felony, must be upon Oath, to speak the Truth, the whole Truth, and nothing but the Truth. If convicted of wilful Perjury, shall suffer the Punishment by Law inflicted on such Offenders.

Any Person above the Age of 14 Years, and not disabled by Law, may be a Witness.

An Accuser or Witness must be a Person of good Fame, not a Criminal, nor attainted or convicted of any criminal Offence, nor a Person outlawed: Yet, in Case of Felony, any Person, though of no Worth, may be allowed for a Witness or Proof. Dalt. 408.

One Witness shall not be sufficient to convict an Offender, for any Crime: Yet, in divers Cases, expressly provided for by some particular Statute or Law, the Oath of one credible Witness is a sufficient Conviction.

When any Prisoner shall be brought before a Justice of Peace for Felony, or Suspicion thereof, and those that bring him, or first complained of him, will not, or cannot inform any material Thing against the Prisoner; if the Felony is actually done, the Justice of Peace, after Examinations taken, ought to commit, or bail the Party suspected, and to cause those that accused or brought in the Prisoner to enter into Recognizance for their Appearance at the next Superior Court to be held for the District, then and there to give Evidence; and if he afterwards shall hear of any other Persons who can prove the Felony, he is to issue his Warrant to bring them before him, and to take their Examination, and bind them to give Evidence for the King. Dalt. 409.

Where an Accusation or Information is made by the Party robbed or grieved, he is to be bound to give Evidence, and to prefer a Bill of Indictment: The Witnesses are to be bound only to give Evidence.

Mr. Dalton admonisheth Witnesses, that they be well advised what they testify upon their Oaths; For, if they speak not the Truth, or conceal any Part, they offend,

[note]

1. Against God, by taking his Name in vain.

2. The Magistrate, in deceiving him, and causing him to do Injustice.

3. The Innocent, in spoiling him of his Name, Goods, or Life.





4. The King, if the Party is guilty, and cleared by false Witness.

5. His own Soul; for it is Perjury in him, before God, and good Men.

Summons for a Witness against a Felon.

— County, ss.

To A. B. Constable.

WHEREAS I have been informed that the Store-House of C. D. of — was lately broke open, and divers Goods and Merchandizes, of the Value of — Pounds, stolen out of the same; and that E. F. of — is a material Witness, to prove by whom the said Robbery was committed: Therefore, in his Majesty's Name, I command you that you forthwith cause the said E. F. to come before me, at my House in this County, to give such Evidence as he knoweth concerning the said Offence, and to be examined touching the Premises; and that you be there also, to shew how you have executed this Precept. Given under my Hand, &c.

[note]

If a Witness before a Justice of Peace refuses to answer upon Oath, or to enter into Recognizance, being by the Justice required so to do, he ought to be committed to Gaol, or bound to good Behaviour. Nels. 250. 1 & 2 Phil. & Mar. c. 13.

Depositions taken before the Coroner may be admitted for Evidence, if the Witness be dead. 1 Lev. 180.

A married Woman, or Infant, under the Age of 21 Years, being Witnesses, are not to enter into Recognizance to appear and give Evidence; and if she is bound with her Husband, ’tis void as to her: But they must be bound by Sureties; and if she cannot find Sureties, she shall be committed. Nels. 254.

Popish Recusant Convict shall not be a Witness in any Cause whatsoever.

It is a general Rule in all Cases, civil and criminal, that the best Evidence that may be had, or that the Nature of the Thing will admit, is to be given. Law of Evid. 286.

Depositions of Witnesses may be read when the Witness is dead, but not while he is living. theory of Evid. 30.

The Confession of the Defendant, taken on Examination before Justices of the Peace, is allowed to be





good Evidence against the Party confessing, but not others; but his Confession must be taken altogether. 2 Haw. 429.

A Person attainted of Treason, Felony, Piracy, Præmunire, Perjury, or Forgery, false Verdict, Conspiracy, or Judgment for any heinous Crime, to stand in the Pillory, or to be whipped or branded, are exceptionable Witnesses. 2 Haw. 432.

But no such Conviction or Judgment can be made Use of to this Purpose, unless the Record be produced in Court. 2 Haw. 433.

A Witness is not to be asked any Question, the answering of which might impeach himself. Ibid.

By the Act for establishing Inferior Courts in this Province, all Witnesses summoned to attend any Cause there depending, shall be allowed Three Shillings for every Day they attend, and Three Half Pence for every Mile they shall travel in coming to and returning from such Court, with an Allowance for Ferriages. And all Witnesses attending such Court are exempt from Process during their Attendance, allowing one Day for every Twenty Miles such Persons Residence shall be from the Place of Attendance.

[note]

When any Evidence shall be aged, infirm, or incapable of attending Court, or resides out of the County, the Court may grant a Dedimus, to take Examination of such Evidence; the adverse Party having Notice of the Time and Place of Examination.

By the late Superior Court Law, all Negroes, Mulattoes, or Indians, to the Fourth Generation, were incapable of being Evidence, only against each other.

EXECUTION.

EXECUTION, in the Common Law, signifieth the last Performance of a Fine or Judgment; and the Execution of a Fine is, by obtaining actual Possession of the Things contained therein, by Virtue thereof; which is, by Entry into the Lands, or by Writ. Fitz. H. Nat. Brev.

[note]

Execution for Debt is four-fold:

1. Of Goods only, by Fieri Facias.

2. Of the Moiety of Lands, by Elegit.





3. Upon the Reconusance of a Statute.

4. Of the Body, by Capias ad Satisfaciendum.

Leigh. Phil. Com. 95.

Where Execution against the Goods, or Body of the Debtor, may be issued by a Justice of Peace, and how such Writs shall be executed and returned. See Tit. Debt.

In criminal Cases, the Judge may respite Execution, from one Gaol Delivery to another, if he see Cause. Dyer 205.

For the Manner of levying Executions by the Sheriff in civil Cases, see SHERIFF.

Where a Person hath been at large after his Attainder, and afterwards brought into Court, and demanded why Execution should not be awarded against him; if he deny that he is the Person, it must be tried by a Jury summoned for that Purpose. 2 Haw. 463.

If a Man condemned to be hanged come to Life afterwards, he must be hanged again; for the Judgment was not executed till he was dead. 2 Haw. 463.

If a Woman be condemned for Treason or Felony, she may, for once only, alledge that she is with Child, to have her Execution respited; upon which the Sheriff must impannel a Jury of Matrons to inquire whether she be with Child or not; and if they find her quick with Child, the Execution may be respited till Delivery. 2 Haw. 464.

EXTORTION.

IS an unlawful Taking by any Officer, by Colour of his Office, Money, or other valuable Thing, not due, or more than is due, or before it be due. In a larger Sense, it is where any Person is oppressed by Power, under Pretence of Right. Co. Lit. l. 3. s. 701.

[note]

By the Common Law, no Officer of the King is to take any Reward for doing his Office, but only what the King allows him, on Penalty of Fine and Imprisonment. This was confirmed by the Statute West. 1. upon Pain of double Damages to the Party grieved, and further Punishment, at the King's Pleasure. But later Statutes having given and settled reasonable Allowances to Officers, Clerks, and Ministers of Justice, as a Reward





for their Labour and Attendance, they may now lawfully demand and take their Fees.

Any Officer, who shall charge, demand, and take, by Colour of his Office, Fee or Reward, not due by Law, or more than is due, or before it be due, is guilty of this Offence.

An Indictment will lie against the Offender, besides the special Penalty provided by Law; which is to be recovered in the Method by such Law directed. Dalt. 71.

FEES

BY the Act of Assembly of this Province for regulating Officers Fees, the following Fees may be received by the several Officers, and for the several Services therein mentioned, viz.

Governor's Fees.

ForA Charter,£. 10 0 0
A Marriage Licence,1 0 0
An Ordinary Licence,1 0 0
An Attorney's Licence in the Superior Courts,3 0 0
An Attorney's Licence in the Inferior Courts,1 10 0
The Probate of a Will,0 5 0
Granting Administration on an Intestate's Estate, and qualifying the Administrator,0 10 0
Letters of Administration or Testamentary,0 5 4
An Assignment of an Administration Bond,0 5 4
A Testimonial under the Colony Seal,1 0 0
A Chief Justice's Commission,5 0 0
A Chief Baron of the Exchequer's Commission,2 0 0
An Associate Justice's Commission,2 0 0
A Judge of the Admiralty's Commission,1 0 0
An Attorney General's Commission,2 0 0
A Secretary's Commission,5 0 0

[note]



ForA Deputy Auditor General's Commission,1 0 0
A Clerk of the Plea's Commission,3 0 0
A Clerk of the Council's Commission,1 0 0
A Captain of Fort Johnston's Commission,1 0 0
A Collector's Commission,1 0 0
A Comptroller's Commission,0 10 0
A Sheriff's Commission,0 10 0
A Coroner's Commission,0 10 0
A Register's Commission,0 10 0
A Notary Public's Commission,0 10 0
A Ranger's Commission,0 10 0
A Naval Officer's Commission,1 0 0
An Assignment of a Ship's Bond,0 5 4
A Ship's Register,0 13 4
A Pilot's Branch,0 10 0
An undecked Vessel's Register,0 7 6
Each Patent for Land,0 6 8
Every Hundred Acres contained in a Warrant for Land,0 5 4

In Chancery.

ForSigning a Decree,0 10 0
Every Subpœna,0 2 8
Signing an Injunction,0 7 6
A Ne Excat,2 0 0
Hearing and determining any Cause,2 0 0
An Interlocutary Decree,1 0 0
Signing an Exemplification of a Decree,0 5 0
Signing an Exemplification of the whole Proceedings in any Cause under Seal,1 0 0
Every Dedimus Potestatem, Attachment, Commission of Rebellion or Sequestration,0 5 4
Dismissing every Bill, where the Cause does not come to Trial, or final Hearing,1 0 0
Setting down every Cause for Hearing,0 2 8
Every Writ of Execution of a Decree,0 5 4
Every Order made on Motion or Petition,0 1 4

[note]



Private Secretary's Fees.

ForDrawing the Certificate for the Probate of a Will,0 5 0
Drawing every Testimonial,0 5 0
Every Warrant for Land,0 2 8
The Great Seal,0 2 8
The Seal at Arms,0 2 8
Drawing an Assignment of an Administration or Ship's Bond,0 5 0
Making out every Commission, to which the Seal at Arms is affixed,0 5 4
Filling up Letters of Administration, taking Bond, and all Services,0 10 8
Filling up Letters Testamentary,0 10 8

[note]

The Secretary's Fees.

ForEvery Patent in Paper, and recording, for 1000 Acres, or under,0 8 0
A Petition for a Grant for a Patent for Land, and Order inclusive,0 2 8
Every Hundred Acres above a Thousand, to Five Thousand,0 0 8
A Patent in Parchment, if required, and recording,0 10 0
A Warrant for surveying Land, proving Rights, Petition, and Order thereon, reading inclusive,0 5 4
Filing every Paper,0 0 7
Letters of Administration, or Letters Testamentary, Guardianship or Tuition, if made out by the Secretary,0 2 8
Every Administration Bond, if taken by the Secretary, and recording,0 3 0
Every Commission of the Peace, and Military Commission, to be paid by the Public,0 5 0
Every Commission for a Place of Profit,0 5 4
A Dedimus Potestatem,0 1 4
Searching a Record,0 0 7
The Copy of a Patent,0 1 4
Letters of Denization,0 10 0
Entering a Caveat,0 1 4

[note]



ForRecording any Paper not before mentioned, or Copy of a Record, per Copy Sheet, each Sheet containing Ninety Words,0 0 4
Every Testimonial passing the Secretary's Office, under the Colony Seal,0 2 8
Every Commission of Oyer and Terminer, or Nisi Prius, to be paid by the Public,0 5 0

The Clerk of the Crown and Clerk of the Peace's Fees.

ForFiling every Indictment, or any other Paper,0 0 4
A Copy of an Indictment, Information, or Presentment,0 1 4
Recording the Coroner's Inquest,0 1 4
Arraigning a Criminal,0 0 7
Entering every Appearance or Default,0 0 7
Every Capias,0 1 1
Every Recognizance acknowledged in Court, or out of Court, if drawn by the Clerk,0 1 1
Entering every Recognizance on the Docket,0 0 8
Entering every Order of Court,0 0 7
For every Venire or Subpœna,0 0 7
Administering every Oath,0 0 4
Entering the Jury's Oath and Verdict,0 0 7
Entering up Judgment,0 0 7
Entering a Plea,0 0 6
A Search of Record,0 0 7
A Copy of an Order of Court,0 0 7
Calling the Defendant,0 0 4
Every Respite,0 0 4
A Liberate,0 1 1
Taking every Deposition in Writing,0 0 7
Every Person discharged,0 0 7
Recording any Paper not before mentioned, or Copy of Record, per Copy Sheet, each Sheet containing Ninety Words,0 0 4
Drawing every Writ of Election, to be paid by the Public,0 2 8
Every Scire Facias,0 1 4

[note]



ForWriting a Warrant,0 1 4
For making up every Record, and entering the same in a Book for that Purpose, per Copy Sheet, each Sheet containing 90 Words,0 0 4

Clerk of the Chancery's Fees.

ForFiling every Bill, or other Paper,0 0 7
Every Subpœna for one or more Persons, if mentioned in the said Subpœna,0 1 4
An Injunction in Chancery,0 5 0
A Supersedeas, and Return,0 1 4
Entering up a Decree,0 2 8
Calling or Dismission,0 0 7
Taking every Deposition in Writing,0 0 7
Interrogatories, if drawn by the Clerk,0 1 4
A Dedimus Potestatem, to examine Witnesses,0 1 8
Every Petition or Motion, if entered in Writing,0 0 7
Recording of any Paper not before mentioned, or Copy of Record, per Copy Sheet, each Sheet containing Ninety Words,0 0 4
Setting down the Cause for Hearing,0 1 4
Every Search,0 0 7

[note]

Public Register's Fees.

ForRegistering every Birth, Burial, or Marriage,0 0 8
Registering every separate Deed of Conveyance of Lands, including the Certificate of being proved, Relinquishment of Dower, Order for Registration, and Certificate of Registration, and all Indorsements thereof, Conveyances by Lease and Release, to be considered as separate Deeds, or Copy thereof,0 4 0
Registering every other Instrument of Writing, or Copy thereof,0 2 8
Every Search,0 0 8

[note]



Sheriff's Feet.

ForAn Arrest,0 5 4
A Bail Bond,0 1 0
Serving a Copy of a Declaration, if done by the Sheriff,0 1 4
Whipping any Person,0 2 8
Serving a Subpœna, for each Person named in such Subpœna,0 2 8
Pilloring any Person,0 5 0
An Attachment as for an Arrest, and if further Trouble by moving Goods, to be taxed by the Court.
Executing a Warrant of Distress, or an Execution against the Body or Goods, if not above Ten Pounds, Proclamation Money, for each Pound, One Shilling; if above Ten Pounds, Proclamation Money, for each Pound above,0 0 7
Imprisonment for Felons or Debttors, or any other Person, for each Prisoner per Day, for finding one Pound of wholesome Bread, one Pound of wholesome roasted or boiled Flesh, and not less than two Quarts of fresh Water, and every other necessary Attendance, and keeping the Prison clean, One Shilling; if the Prisoner finds himself Victuals and Drink, then the Sheriff shall take last.0 0 4
Summoning, impannelling, and attending on every Jury in every Cause, when a Special Venire shall issue by Order of Court,0 5 4
Putting any Person in the Stocks, and releasing,0 0 7
A Commitment, if by Order of Court, or Mittimus,0 2 8
A Releasement,0 2 8
Serving a Writ of Possession of Land,0 7 6
Waiting on any Person on a Habeas Corpus, per Day,0 2 8
Calling every Action, each Court,0 0 4

[note]



ForSummoning the Jury on a common Venire, in every Cause,0 0 8

Escheator's Fees.

For every Inquisition and Return,1 12 0

[note]

Attorney General's Fees.

For every Indictment found, or Presentment made,1 6 8
If Bill found Ignoramus, then the Prosecutor shall pay0 13 4
For the same in the County Court,0 13 4
If found Ignoramus, then the Prosecutor to pay0 6 8

[note]

Judge of the Admiralty's Fees.

In Cases of Seamens Wages, or other Suit, exceeding Twenty Pounds Value recovered, for the first Day,1 6 8
For every Day more than one,0 13 4
For a Warrant of Arrest, or any other Warrant,0 1 4
For admitting the Libel,0 1 4
For every Citation,0 1 4
For every definitive Sentence,0 5 4

[note]

Register's Fees in like Cases.

ForFiling every Paper,0 0 7
Registering a Libel,0 4 4
Registering an Answer or Replication,0 2 0
Taking every Affidavit in Writing,0 1 0
Registering a Decree,0 2 0
Dismission of every Suit,0 0 7
Continuing every Suit,0 0 7
A Citation,0 1 8
A Subpœna for each Evidence,0 0 8
For registering every Paper not before mentioned, or copying, per Copy Sheet, each Sheet containtaining Ninety Words,0 0 4

[note]

The Advocate's Fees.

The King's Advocate, in every Cause when he appears for the King,2 13 4
In every other Case, the same as another Advocate,1 10 0

[note]



The Marshal's Fees in the Court of Admiralty.

[note]

ForServing every Warrant, and Return,0 5 4
Serving a Decree, and Return, above Five Pounds,0 8 0
Every Pound above Five Pounds,0 0 4
Serving a Citation, Monition, or Notice,0 2 8

The Novel Officer's Fees.

ForEntering and clearing Vessels not decked, Boats or Canoes of the Country, if bound to foreign Parts,0 3 3
Entering and clearing decked Vessels, belonging to the Country,0 6 8
Entering and clearing foreign Vessels, if under One Hundred Tons, One Pound Four Shillings; if above One Hundred Tons, to include all Fees, except such as are in this Act particularly mentioned.1 10 0
Taking Bonds of Masters of Vessels, to be understood of either Bonds which Masters of Vessels are obliged to give,0 2 8
A Bond in Order to obtain a Pass, for People going out of the Country, and the Pass,0 3 0
A Certificate for enumerated Goods,0 1 4
A Certificate for Bounty in England,0 2 8
Signing a Permit for any foreign Vessel, going from one District to the other, within this Province,0 2 8
Signing a Permit for Country Vessels, going as aforesaid, having foreign or enumerated Goods on Board,0 1 4

[note]

Collector's Fees.

ForEntering and clearing foreign Vessels, if under One Hundred Tons, One Pound Four Shillings; if above One Hundred Tons, including all Business incident, except such as are in this Act particularly mentioned,1 10 0

[note]



ForEntering and clearing open Vessels of the Country, if bound to foreign Parts, including as aforesaid,0 3 3
Entering and clearing decked Vessels of the Country, including as aforesaid,0 6 8
A Certificate on the Change of a Master,0 2 8
Writing and signing a Register,0 5 4
Recording a Register, if required,0 2 8
A Certificate for enumerated Goods,0 1 4
A Certificate for Bounty in England,0 2 8
Signing a Permit for any foreign Vessel, going from one District to another within this Province,0 2 8
A Permit for Country Vessels, going as aforesaid, having foreign or enumerated Goods on Board,0 1 4
A Permit to load and unload,0 1 4

Surveyor General's Fees.

ForEntering a Warrant, and certifying,0 2 8
Surveying a Thousand Acres, and under,1 6 8
Every Hundred above a Thousand,0 1 1

[note]

Auditor's Fees.

ForAuditing every Patent,0 5 4
Entering and certifying every Warrant for Land,0 2 8

[note]

Receiver General's Fees.

For a Warrant of Distress,0 2 8

[note]

Coroner's Fees.

ForEvery Inquisition and Return, to be paid out of the Deceased's Estate; if no Estate, then by the Country,0 16 0
Each and every Juror on an Inquisition, to be paid by the Coroner out of the Deceased's Estate; if no Estate, to be paid by the Country,0 1 4

[note]



ForThe Constable, for summoning each Juror on an Inquest,0 0 7
Other Services the same as the Sheriff.

Clerk of the Council's Fees.

ForReading every Paper in Council,0 0 7
Entering every Order of Council,0 0 7
Every Search, or Copy of an Order of Council,0 0 7
Every Citation or Summons,0 0 7
Administering every Oath,0 0 4
Drawing every Petition, if drawn by the Clerk,0 0 10
Taking every Deposition in Writing,0 0 7
Filing every Paper,0 0 7
Recording every Paper not before mentioned, or Copy thereof, per Copy Sheet, each Sheet containing Ninety Words,0 0 4

[note]

When any Officer shall receive any of the above Fees, he shall give a Ticket of the same, with a Receipt, if demanded.

Every Officer shall set up in his Office a Table of the above Fees, to be taken by him, on Penalty of Five Shillings for every Day such Table shall not be set up.

If any Officer shall demand or extort any other Fees than the above, or shall refuse to do the particular Service in Office for such Fees, he shall forfeit Five Pounds.

The above Fines recoverable before any Jurisdiction having Cognizance of them, by any Person suing for the same.

Prosecutions within Two Years.

By the above Act, the Chief Justice, and Clerks of the Superior and Interior Courts Fees were regulated; but the Chief Justice has since been allowed a certain yearly Salary, in Lieu of all Fees, and the Clerks have had their Fees regulated by later Acts of Assembly, the last Regulation of which is as follows:

ForEvery Writ or leading Process returned to the first Court, and all subsequent Process, Appearances, Pleas, Rules, Orders,

[note]



Forand other Services necessary thereon, until the making up an Issue inclusive, and also for Dismission or final Judgment, where either happens, or for Confession of Judgment, to the Clerk of the Court,0 14 0
Every Continuance or Reference of every Cause after the second Court, including all Fees for every Service necessary thereon,0 4 0
The Court at which the Cause is determined, including all Fees for every necessary Service thereon, and entering final Judgment inclusive, or Discontinuance or Dismission,0 18 0
Every Subpœna, in which shall be inserted no more than Four Witnesses,0 2 0
Every Execution or Order of Sale, when necessary, issued and returned, including all Services thereon, with taxing Costs and Copy, and entering Satisfaction,0 5 0
Every Scire Facias against Bail, with making up an Issue thereon, or entering Judgment, without Plea, including all Fees for every Service necessary thereon (provided that the Party paying Costs shall not be subject to this, unless the Scire Facias is requisite, and required by the Plaintiff)0 8 0
Giving a Copy of the Record of any Cause, when demanded by either of the Parties,0 6 0
Every Order or Rule of Court, made on Matters foreign to the Suits depending in Court, and Copy thereof when demanded,0 2 8
Entering on the Minutes the Probate of a Will, qualifying Executors, making Certificate, recording the Will, and giving Copy thereof,0 10 8





ForGranting Administration, taking Bond, and all other Services thereon,0 10 8
All Services necessary to be done by the Clerk of the Court towards procuring Letters of Administration, or Letters Testamentary, if he furnishes the said Letters, including the Governor's, Secretary's, and private Secretary's Fees,1 6 8
All Services in proving, recording, and filing an Inventory, Account of Sales, or Account Current, exhibited by an Executor, Administrator, or Guardian, or for Search, Copy, and Certificate of the same, if the Estate be under One Hundred Pounds, One Shilling and Four Pence; if above One Hundred Pounds Value,0 4 0
Every Marriage Licence and Bond, and all the necessary Services thereon,0 5 0
Every Ordinary Licence and Bond, and all the Services necessary to be done thereon,0 5 0
Tavern Rates,0 2 6
Searching a Record out of Court,0 0 8
Proving or entering Acknowledgment of a Conveyance of Land, or other Estate, and certifying the same, with the Order for Registration, and Examination of a Feme Covert, without Commission,0 2 8
Guardian or other Bonds taken in Court, and for all necessary Services thereon, every Fee relative thereto included,0 8 0
Indentures for binding out Apprentices, making Order thereon, and for filing and recording the same, including all Fees for every Service necessary,0 5 4





ForA Special Verdict, Demurrer, or Motion in Arrest of Judgment, and Argument thereon,0 4 0
Writ of Error or Appeal, with a Transcript of the Record, and all Services thereon,0 10 0
Making out Certificates of Witnesses or Jurymens Attendance,0 0 8
Recording a Mark or Brand, and granting Certificates thereof, if required,0 1 4

FELONY.

THIS Word includes Petty Treason, Murder, Homicide, Burglary, Robbery, Theft, Burning of Houses, Rape, Rescous, Escape, &c. Co. Lit. 391.

[note]

In ancient Times, the Punishment for any Crime was Pecuniary, and the Criminal might discharge himself, by Payment of a certain Sum of Money: But this was abolished in the Reign of King Henry 1. who appointed Hanging for Felony, A. D. 1114, when the first Parliament of England was held. Before this Time, the English Kings ordered National Affairs by their own Edicts, and by their Officers and Governors of Counties; and had seldom any General Assemblies of the People, unless at a Coronation, or in Times of War. Their Parliaments were only Meetings of the Nobility, and Clergy usually. Kennet's Hist. Engl. Vol. 1. pag. 123.

Felony, is created by Common Law, or by Statute. Felonies at Common Law, are,

[note]

1.Against the Life of a Man, byChance-Medley, or
Casual Death.
Deodand.
Manslaughter.
Murder.
Self-Murder.
Self-Defence.
2.Against the Goods, byLarceny.
Robbery.
Piracy.





3.Against the Habitation, byBurglary.
Burning.
4.Against Public Justice, byBreach of Prison.

Felonies by Statute are particularised under their proper Titles, to which, for avoiding Repetition, I refer.

If Felony is committed in one County, and the Offender taken in another, he may be imprisoned where taken.

But if he carry stolen Goods with him, ’tis Felony in every County, where they are carried. Nels. 273.

Officers may break open any House, to take a Felon, or One suspected of Felony: And if the Officer hath a Warrant to take a Felon, who is killed, making Resistance, ’tis not Felony in the Officer; but if the Officer is killed, ’tis otherwise.

And if a Felon escape from an Officer, by Force, and he cannot otherwise retake him, the Felon may be killed, for the Officer will be justified by his Authority. Dalt. Nels.

A Felon brought before a Justice, upon Suspicion, tho’ it appear he is not guilty, yet he is not to be discharged without further Trial.

A Man ought not to be arrested upon Suspicion of Felony, except good Cause be shewn for the Ground of this Suspicion: For every foolish Fancy, or Conceit, is no Ground of Suspicion to arrest One for so great a Crime; but there must be probable Cause for the Suspicion. Style 317.

A Felony must be actually committed, or done, before any Person is legally chargeable upon Suspicion: And then, the Fame and Character of the Party suspected, as well as all Circumstances relating to the Fact, ought to be well considered.

Where the Death of any Person ensues upon the doing an unlawful Act, tho’ such Death was not intended by the Party who did the Act, yet this is Felony: For the Law will judge, that he who would do one unlawful Act, might intend to do any other unlawful Act which might be occasioned upon the Doing thereof. Style 316.

The receiving only of stolen Goods, not knowing them to be stole, is not Felony; but receiving them, and comforting the Felon, is Felony: For the comforting the Felon doth prove, that he consented to the Felony, and approved the Fact.





If a Man be assauited by a Robber, and he cast away his Goods, with Intent to save them from the Robber; but he takes them up, and carries them away, this is Robbery and Felony, altho’ he took nothing from the Person: For the Party is robb'd of his Goods, and the Thief knew them to be the Parry's Goods, and intended to take them from him, had he not thrown them away, and was the Cause that he cast them away. Style 317.

If one Servant delivers Goods to another Servant, and he runs away with them, this is Felony; because the Delivery of the Servant is the Delivery of the Master. But if I deliver a Bond to my Servant, to receive Money, which he receives, and goes away with the Money; this is not Felony, within the Statute of 21 H. 8. cap. 7. because a Bond is not properly Goods, but a Choice in Action. So if I deliver Goods to my Servant to sell, which he doeth, and runs away with the Money; this is not Felony, because he had not the Money by my Delivery. Dyer 6.

If Goods are delivered to a Carrier, to carry to — and he carries them to another Place, and there converts them to his own Use, this is Felony; for tho’ it cannot strictly be said, that he feloniously took those Goods, yet the carrying them to another Place, and there disposing of them to his own Use, shews that he always intended to steal them, and not to take and deliver them upon the Contract or Agreement of the Owner.

So if One pretends to buy a Horse, and the Owner gives Leave to ride the Horse, to try his Paces, and he rides away, without returning the Horse, this is Felony: So if I deliver Goods to a Porter, or Waterman, to carry to a certain Place, and he carries them to another Place, and there opens and disposes of them, this is Felony.

The Law is the same if the Goods were carried to the Place appointed, and there imbezzled; because when they are brought to that Place, the Contract is determined, and the Possession revested in the Owner, and being taken away afterwards, ’tis Felony. Keel 82, 83.

If a Felon steals Goods, or a Horse, &c. and another afterwards steals the same from him, the Owner may charge the first or second Felon: And if a Man





delivers Cloth to a Tailor, and the Cloth be stolen from him, the Offender may be prosecuted and charged, either at the Owner's Suit, or at the Tailor's. Dalt. 401.

If a Robbery is committed, and the Party robb'd will not prosecute the Felon, any other Person may give Information against the Offender, and charge him with the Felony, before a Justice of Peace, who is to receive the Information, and examine the Informer, upon Oath, and may thereupon issue his Warrant to apprehend the Felon, or Party suspected of the Felony; as likewise, to cause the Party robb'd, and all others who can give Information or Evidence of the Felony, to come before him to be examined: And then, upon such Examinations taken, the Offender is to be committed, or bailed, if bailable, and the Informer and Witnesses bound, to appear and give Evidence, before the Court where the Prisoner is to be tried.

Upon any Felony committed, if the Offender flies, he shall be pursued by Hue and Cry, from Town to Town, and from one County to another, until he be taken: All Persons, by Command of the Sheriff, or Officer, and Cry of the Country, shall readily assist in the Pursuit, or they may be grievously fined by the Justices of Gaol-Delivery.

Any Man may apprehend the Party pursued by Hue and Cry; if he be taken with the Goods supposed to be stolen, tho’ he be not a Person of evil Fame, nor a Stranger, yet he shall be brought before a Justice of Peace, of the Town or County where such Taking shall be, together with the Goods taken upon him; and the Justice is to examine the Prisoner, and the Bringers, then to commit him to the County Gaol, and bind the Witnesses to appear and give Evidence. Dalt. 403.

The Punishment of a Person attainted of Felony, is Four-fold,

[note]

1. Loss of Life.

2. Corruption of Blood; so as he hath neither Ancestor, Heir, nor Posterity.

3. Forfeiture of Fee-simple Lands, from the Time of the Offence committed; to the Intent, that his Wife and Children shall be cast out, his Houses razed, Trees cut down,





Meadows plough'd up, and all his Lands wasted and destroyed.

4. Forfeiture of Goods and Chattels, from the Time of his Attainder. Co. Lit. 745, &c.

After a Felon is attainted, the King shall have all his Goods, moveable and immoveable, Corn growing, Profits of Fee-simple Lands a Year and a Day, Issues and Profits of other Lands for Life, and all Debts outstanding due to the Felon; and the King, or Party, to whom the same shall be given by the King, may bring Suit in his own Name: Yet the King, or Party, cannot be sued for Debt due from the Felon. Dyer 30.

But in Case of Manslaughter, Self-Murder, and Petty-Larceny, Homicide by Chance-Medley, or Self-Defence, no Lands are forfeited, but Goods only: Co. Lit. 391. In the two latter Cases, the Offender may have Pardon of Course. Nels. 303.

After a Felon shall be convicted by Verdict, or Consession, and before he is attainted by Conviction, he may pray his Clergy; which shall be allowed, without Reading, in all Cases where Clergy is not expressly taken away, or where the Offender has not once before had Clergy allow'd: And thereupon he shall be burnt in the Hand, by the Gaoler, in open Court, and discharged from the Forfeitures of Attainder.

Women may have the Benefit of Clergy, in all Cases where it is allowable to Men. 5 & 6 Geo. 2. cap. 7.

In all Trials for capital Offences, Prisoner may have Counsel. 8 Geo. 2. cap. 7

If a Felon is apprehended, with the Goods, the Owner shall have them. See Tit. Restitution.

If upon Hue and Cry, a Man do arrest a Thief who hath stolen another Man's Goods, and then takes the Goods from the Felon, and lets him go: This shall make him Accessary to the Felony, after the Fact, if not a principal Felon. Dalt. 400.

[note]

Rescuing a Felon, by taking him away from an Officer, is Felony, as well in the Rescuer, as in him that is rescued.

[note]

And if any Man has arrested another for Felony, and afterwards let him go at Liberty, this is a wilful Escape, and Felony in him that suffered the Escape. Dalt. 377.

[note]

To kill a Person attainted, is Felony: For such are to be put to Death by an Officer of Justice only, and by lawful Warrant. Co. Lit. 130.

[note]



And if the Officer shall put him to Death, otherwise than by his Warrant commanded, ’tis Felony in the Officer.

Where a married Woman commits Felony with her Husband, it shall be presumed to be done by his Command, and she shall be excused. 3 Inst. 310.

Piracy, Robbery or Murder upon the Sea, are Felonies punishable by the Civil Law, and by Statute also.

In all Felonies there must be an evil Intention, a forethought Malice, and wicked Design of doing an Injury to another; the evil Intention constitutes the Crime. And where one Man kills another, if it was done of a sudden, in the Heat of Passion, before the Mind could reflect and coolly exercise its Reason, this is Manslaughter only, as there was no premedidated Malice or Design to kill.

[note]

When a Complaint is made to a Justice of the Peace of any Felony committed in his County, he must issue his Warrant to apprehend the Thief, and when brought before him, he must proceed as mentioned under Title CRIMINALS.

Warrant to apprehend a Felon.

— County, ss.

To A. B. Constable, or any lawful Officer of said County.

WHEREAS Complaint hath been this Day made before me C. D. Esq; one of his Majesty's Justices of the said County, by E. F. of the County aforesaid, that his Storehouse was last Night broke open, and sundry Goods, to wit [here mention the Goods stolen] were feloniously taken and carried away from thence; and that he hath great Reason to suspect, that a certain G. H. late of this County, Labourer, has committed the said Felony. These are therefore in his Majesty's Name to charge and command you to make diligent Search and Enquiry within your Precinct for the said G. H. and him having found, to bring before me, or any other Justice of this County, to answer the Premises wherewith he is charged. Given under my Hand and Seal this — Day of —

When a Robbery is committed, and the Thief cannot be discovered, it is usual for a Justice to issue a Search Warrant, to search for the stolen Goods; for





the Manner of granting and executing such Warrant, see SEARCH WARRANT.

FEME COVERT

IS an Appellation by the Common Law properly applied to the Estate and Condition of married Women, who is under Covert Baron, that is, under her Husband's Power, and therefore disabled to make any Bargain or Contract, without his Consent, Privity, Allowance, or Confirmation; she can neither sue, nor be sued, without her Husband: If the Husband alienate his Wife's Land, she cannot gainsay during his Life, except in Case of Divorce. Broke, Bracton.

[note]

The Peace may be granted against her, or against an Infant, though under Fourteen Years of Age; but she is not to be bound, though with her Husband, the Recognizance will be void as to her: She must find Sureties, or be committed. 9 Rep. 72.

If she commit a Riot or Trespass, without her Husband, she may be indicted, and fined: The Fine shall not be levied on her Husband, but on her, after his Death, and she shall be committed till ’tis paid, 11 Rep. 128.

If she steal Goods by the Compultion of her Husband, ’tis not Felony in her, because of the Necessity of Obedience; but if it was at his Persuasion, without Constraint, she is then guilty of Felony, and her Husband is Accessary.

But this Privilege shall not prevail in Cases of Treason or Murder, because of the Greatness of those Offences. Nels. 279.

If Husband and Wife steal together, both are principal Felons. Dalt.

She cannot steal her Husband's Goods; but if she is taken away with them, against his Consent, ’tis Felony in him that takes her: So likewise if she deliver her Husband's Goods to an Adulterer, this is Felony in him. Nels. 279.

In an Indictment or Suit for selling Liquors without Licence, the Husband must be joined, because he is to pay the Fine.





If she be summoned as a Witness, and does not appear, her Husband shall be sued for her not appearing. Style 99.

Regularly, she cannot be a Witness for or against her Husband, in any Case, civil or criminal.

An Action doth lie against the Husband for Goods delivered to his Wife, if it may be intended, or can be proved, that those Goods did any Way come to the Use of the Husband: For then he hath the Benefit of them, and in Honesty and Justice he ought to pay for them. Style 99.

If a Feme Sole, or a single Woman, is sued in an Action, and pending such Action she marries, such Marriage will not abate the Suit; but the Husband is bound to abide by such Suit. Str. 811.

A Feme Covert may, with her Husband, be indicted and pillored, for keeping a Bawdy House; for ’tis an Offence against the Government of the House, of which she has a principal Share. 1. Haw. 2.

For Feme Coverts how to pass their Lands, see LANDS.

FERRIES. See ROADS and FERRIES.

FIRE-HUNTING.

IF any Person shall be discovered hunting in the Woods with a Gun by Fire Light, in the Night Time, he shall forfeit Five Pounds, to be recovered by a Warrant from any Justice of the Peace in the County, Half to the Informer, and Half to the Parish; and upon Conviction of the Crime, the Justice may give Judgment, and award Execution against the Body, Goods or Chattels of the Offender, and commit him to Gaol for one Month, or until such Fine, and the Fees accruing, shall be paid.

[note]

If any Slave shall be discovered Fire-hunting in the Night, he shall, by the Judgment of any Justice of the Peace, receive Fifty Lashes on his bare Back, well laid on, and the Gun of such Slave shall be forfeited to the Person who shall discover and prosecute such Slave.





Warrant to apprehend a Fire Hunter.

— County, ss.

To A. B. Constable, or any lawful Officer of said County.

WHEREAS I am informed that C. D. of this County, Planter, was, in the Night of the — Day of — discovered hunting with a Gun by Fire Light, contrary to the Act of Assembly in that Case made and provided. These are therefore, in his Majesty's Name, to require you to apprehend the said C. D. and bring him before me, or some other Justice of this County, to be dealt with as the Law directs. Given under my Hand and Seal, this — Day of —

[note]FORCIBLE ENTRY & DETAINER.

THIS is to be understood, generally, where any private Person, without lawful Warrant, by Force enters into, or holds any Messuage, Plantation, Wood, Meadow, Pasture, &c. whereof another is seized.

[note]

But the Force must be apparent: For if the Entry and Holding is peaceable, then ’tis Disseisin, not Force, and the Party grieved must seek Remedy by proper Action.

The Statute 5 R. 2. cap. 7. prohibits Force; so that the Party who has Right or Title, shall not enter by Force, although the Party in Possession has no Title. Nor shall the Landlord by Force distrain for Rent.

By another Statute, 15 R. 2. cap. 2. Authority is given to one or more Justices to take with them sufficient Power, and to view the Place where Entry or Detainer is by Force, and to commit the Offenders until they have made Fine and Ransom to the King: The Sheriff, and all others, are to be assistant to the Justices, upon Pain of Fine and Imprisonment.

[note]

And by the Statute 8 H. 6. cap. 9. Power is given to one or more Justices, by Warrant to command the Sheriff to summon a Jury, to inquire of the Force, which being found, the Justices may seize the Tenements, and award Restitution, as well in the Absence as Presence of the Offender, at the Costs of the Party grieved.





It likewise appoints the Statute of 15 R. 2. to be put in Execution, although the Detainder, by Force, was after peaceable Entry.

Sheriff neglecting his Duty, forfeits 20 l. to the King and Prosecutor.

By the Statute 31 Eliz. cap. 14. no Inquiry shall be made or Restitution awarded by Justices after peaceable Possession of Three Years.

And by the Statute, 21 Jac. 1. cap. 15, Restitution is extended to Tenants for Years, or by Elegit, &c. Copyholders, &c. as well as to Freeholders.

By these Statutes, Remedy is provided,

1. Against those who enter with Force, and continue the Possession peaceably.

[note]

2. Those who enter peaceably, and hold out with Force.

3. Those who both enter and hold out with Force.

And the Party grieved has a Treble Remedy, viz. by Action upon the Statute of H. 8. wherein he shall recover treble Costs; or by Indictment, before the Superior or County Court; or by Complaint, before a Justice or Justices of Peace, who, upon Inquiry and Force found by a Jury, may grant immediate Restitution.

If one enter into the House of another, without his Consent, tho’ the Door was open when he entered, yet this is a Forcible Entry if he detains the Possession: Because it is against the Will of the Possessor of the House. Style 289.

Entering with Force to commit Trespass, tho’ the Party doth not quit Possession; Coming with Weapons threatning Life, or Loss of Limbs; Breaking open Doors; Entring with unusual Armour or Weapons, the Doors being open; Coming attended with many People, or unusual Company, threatening, or using terrifying Menaces; Ejecting, or distraining for Rent, with Force: These, and such like shall be taken to be a Forcible Entry. Co. Lit. l. 3. s. 431.

If Several come with Intention to enter, and One commit Force, All are guilty, tho’ the Other are peaceable: If more than Three, ’tis a Riot also, for which they may be indicted, fined, and imprisoned. 2 Cro. 151.

Forcible Detainer is, where the Entry was peaceable, but the Possession is held by Force; as, by denying





Entrance to the Justice coming to View; Keeping Cattle, &c. in another Man's Ground, by Force; Menacing to keep Possession, tho’ no Force is used; Resisting, Threatening, or Rescuing, in Case of lawful Distress, tho’ by one Person only. Dalt.

[note]

Those who both enter and hold out with Force, may be prosecuted for Forcible Entry, and Detainer.

An Infant above 14, or a Feme Covert, may be committed, and fined, for Forcible Entry, or Detainer; tho’ ’tis Prudence not to commit the Infant, and the Husband shall not be chargeable with the Fine of his Wife, but she shall be committed ’till ’tis paid. Nels. 292.

But Words alone, tho’ they be violent and threatening, cannot make an actual Entry and Ouster, but there must be Force used by the Party, to make it so: For the Word, Ouster, doth imply an Act or Acts to be done, viz. a violent putting out, and not Words spoken only. Style 290.

Force may be lawful in divers Cases, as

1. By an Officer, having legal Warrant to apprehend any Person for Treason, Felony, or Suspicion thereof.

[note]

2. To take any Person who has dangerously wounded another; or where there is an Affray in the House, and Doors shut.

3. By a Justice, or Justices, upon forcible Entry, or Detainer, found by Inquisition, or View of the Justice.

4. By the Sheriff, upon a Judgment and Restitution awarded in Ejectment; but he must first signify the Cause of his coming, and require the Doors to be opened. 5 Rep. 91.

5. Upon Outlawry in a personal Action, or upon a Fine to be levied.

6. In all Cases where the King is Party.

7. Every Man may with Force defend his House, Person, Goods, or Family, against Thieves, Robbers, or any other Person attempting to break his House, without lawful Authority, and may assemble his Friends and Neighbours to defend himself and his Possession, by Force: If he, or any of his Company, shall kill a Thief, or one attempting to enter with a felonious Intent, this is no Felony, nor liable to any Forfeiture.





8. A Man in peaceable Possession may defend his House against another attempting to enter upon him, though under a better Title: But if he kill the Party attempting to enter, ’tis Felony. Dalt. 308. Nels. 292.

9. In Defence of my Goods, I may beat another, and if he has taken them away, I may retake them from him by Force; but a Man cannot justify wounding another, in Defence of his Goods: Yet every one may take and detain his own Goods, with Force; and therefore, in an Action of Trespass for this Matter, the Issue shall be, the Interest or Title to the Goods in Question, not the Force used in getting them again. But Force, though for such Cause, used in Entry into Lands, or Tenements, is punishable, although the Entry might be claimed under a good Title. Dalt. 309.

10. If an Attempt be made to disseize me of my Land or Highway, or to turn an ancient Water-Course from my Mill, I may lawfully use Force to resist any private Person. Ibid.

Upon Complaint of forcible Entry or Detainer made before a Justice of Peace, he may command the Assistance of the Sheriff, and such other Persons as he thinks fit, and repair to the Place, to inquire of the Force: He may break open the Doors, if resisted, and may arrest and commit every Person holding with Force, or making Resistance.

If he sees the Force, he may record it; for his View is a Conviction: And he may commit the Offenders, or bind them to good Behaviour, and his Record being certified to the Superior or County Court, they may award Restitution, and assess a Fine.

Where no Resistance is made when the Justice comes, he is not to remove or commit any Person, until Inquisition made, and Force found by a Jury.

If the Entry was upon good Title, tho’ with Force, the Party grieved must proceed by Indictment, or Action of Trespass.

But if the Justice, or Justices, see Cause to remove a Force, and to restore the Party grieved, tho’ the Offenders are gone before the Justice comes, yet he may immediately issue his Precept to the Sheriff, commanding him to impannel a Jury, to inquire of the Force; which being found, by Verdict, the Justice himself may





forthwith restore the Party to his Possession, or may make a Precept to the Sheriff for that Purpose.

Where the Justices find a Force, and make a Record of it upon their own View, they may commit the Offenders, but cannot avoid Restitution. 1 Vent. 308.

But if the Force is found by Inquisition of Twelve Men, no other Justice or Justices (except the Superior Court) but he or they before whom the Force was found, can grant Restitution: They may break open the House, and restore the Party himself, for none but he who is actually put out of Possession can be restored. 8. H. 6. cap. 9.

If a Precept is directed to the Sheriff, to make Restitution, and he returns, that he cannot make Restitution, because he was resisted; he shall be fined, for he may raise the Power of his County. Dyer 187.

The same Justices before whom the Force was found, having made a Precept to the Sheriff, to restore the Party, may grant a Supersedeas to stay Restitution, if they see Cause. Dyer 122.

Reasons to be assigned for Stay of Restitution are principally these:

[note]

1. A Writ of Certiorari. See Tit. CERTIORARI.

2. Three Years peaceable Possession.

But these must be tendered, before Restitution is executed.

One Person alone may make forcible Entry and Detainer, if he be armed with offensive Weapons, not usually borne, or use turbulent Behaviour, Violence, Threats, and the like; or if he denies Entrance to the Justice. Dalt. 302.

An Insant, of the Age of 18 Years, may be a Disseiser, with Force, and may be imprisoned for the same. 22 Ed. 4. O. N. B. 128.

But if an Infant commands another to enter, or hold with Force, to his Use, he shall not be punished, because it's a void Command.

If one do interrupt, by unlawful Means, a long continued Possession of Lands, and the Person interrupted regains his Possession, by unlawful Means also; yet an Indictment of forcible Entry doth not lie against him for so doing: For the Law favours long Possessions, and doth not countenance the Disturbers of them, and this is but repelling Force with Force, which is not punishable in many Cases. Style 266.





Although by the Statutes, Authority is given to one Justice of Peace to make a Record of forcible Entry and Detainer, to commit the Offenders, and to award Restitution; yet as this often proves a Matter of Weight, both in its Nature and Consequences, it may not be amiss to follow Mr. Dalton’s Advice, ‘That where it can conveniently be done, two or more Justices join in the Execution of these Statutes.’

Record of forcible Entry, upon View of a Justice. — County, ss.

I A. B. Esq; one of his Majesty's Justices of the Peace of the said County, certify, That on the — Day of — in the — Year of the Reign of our Sovereign Lord King George the Third, Complaint was made to me, by C. D. of — that E. F. of — and other Persons unknown, Disturbers of the Peace of our said Lord the King, on the said — Day of — in the Year aforesaid, peaceably entered the Mansion House and Plantation of the said C. D. situate in the Parish of — and in the County of — aforesaid, and being the Freehold of the said C. D. whereof he then stood peaceably seized; and afterwards, to wit, the same Day and Year, the said E. F. with Force and Arms, that is to say, with Swords, Clubs, and Pistols, him the said C. D. of his House and Plantation aforesaid ejected and disseised, and the same Messuage and Appurtenances, with like Force and Arms, continued to hold and detain, and thereupon the said C. D. prayed of me Relief and Remedy in this Behalf: I the said A. B. therefore immediately went, in my proper Person, to the House and Plantation aforesaid, and then there I found the said E. F. unlawfully with Force holding and detaining the Premises aforesaid, contrary to the Form of the Statute in that Case made and provided; and thereupon I the said A. B. caused the said E. F. to be taken and arrested, and have committed him to the Gaol of the aforesaid County of — there to remain in safe Custody, until he shall give sufficient Security, before me, or some other Justice of Peace of this County, for his personal Appearance at the next Court to be held for the said County, to answer the said forcible Detainer, whereof he is convicted by my own View and Record, and in the mean Time to be of good Behaviour, or until he shall be discharged by due Course of Law. Certified under my Seal, this — Day of —

[note]



Mittimus.

— County, ss.

To the Sheriff, or Keeper of the Gaol of said County.

I SEND you herewith the Body of E. F. of — convicted by my own View and Record of forcibly holding the Lands and Tenements of C. D. in the Parish of — within this County, against the Form of the Statute in that Case made and provided: And I command you, in his Majesty's Name, to receive the said E. F. into your Gaol and Custody, and him there safely to keep, until he shall be thence discharged by due Course of Law. Given under my Hand and Seal, &c.

[note]

But the Defendant, upon his Prayer, and Tender of sufficient Sureties, as mentioned in the Record, ought to be admitted to Bail.

Precept to summon a Jury.

— County, ss.

A. B. Esq; one of his Majesty's Justices of the Peace of the said County, to the Sheriff thereof, Greeting. On Behalf of our Sovereign Lord the King, I command you, that you cause to come before me, at — in the Parish of — and County aforesaid, the — Day of — next, Twenty Four good and lawful Men of the same Parish, within your Bailiwick, to inquire upon their Oaths of such Things as shall be then there enjoined them, on his Majesty's Behalf; and see that upon each Juror, by you in this Behalf impannelled, you return Twenty Shillings in Issues, on the Day aforesaid. And this you shall in no Wise omit, on Penalty of Twenty Pounds. And have then there this Precept. Witness the said .A B. this — Day of —

[note]

Upon Appearance of Twelve, at the Day and Place appointed, the Justice swears the Jury.

YOU shall well and truly try this Issue of forcible Entry between our Sovereign Lord the King and E. F. of — and a true Verdict give according to your Evidence.

[note]

So help you God.

On the Defendant's Tender of a Traverse, which is a Plea, in Writing, whereby he takes Issue upon the Matter, or denies the Force, the Justice may try the





Traverse, or certify it, and the whole Record, to the Secretary's Office, which is the best Way. He that tendereth the Traverse must bear all Charges of Prosecution, both before the Justice and in the Superior Court.

If the Justice will try the Traverse, it must not be by the Jury who found the Force, but by a new Jury, who must be summoned by the Sheriff, upon the Justice's Precept, as before, returnable the next Day.

Oath to a Jury on a Traverse.

YOU shall well and truly try this Issue of Traverse between our Sovereign Lord the King and E. F. for a forcible Entry and Detainer, wherewith he stands charged, and a true Verdict give according to your Evidence.

[note]

So help you God.

But the Traverse is no Supersedeas, because the Force being found by Inquisition, the Justice may restore the Party grieved, and may immediately put the Party in Possession himself, or direct his Precept to the Sheriff for that Purpose.

If the Jury shall not appear at the Day, the Justice may issue an Alias, after that Pluries Infinite, till they come; so that at the Day of Return of the Alias (or second Precept) the Sheriff shall return Forty Shillings in Issues, upon every one of them; and upon the Pluries (or third Precept) Five Pounds; and upon every Pluries thereafter, the Issues to be doubled. Dalt. 312.

Issues are Fines which by the Common Law were to be set on every Juror for Non-Attendance, and levied on them by the Sheriff out of the Profits of their Lands; but on reasonable Excuse proved by two Witnesses, the Justices may discharge the Issues. 35 Hen. 8. ch. 6.

Inquisition of Force.

— County, ss.

IN QUISITION for our Lord the King, taken at — in the Parish of — and County aforesaid, the — Day of —, before A. B. Esq; one of his Majesty's Justices of the Peace of the said County, and by the Oath of G. H. I. K. &c. good and lawful Men, of the same Parish and County, who being charged and sworn, upon their Oaths do say, That C. D. of — was lawfully and peaceably seized in his Demesn, as of Fee, of and in one





Messuage, with the Appurtenances, in the Parish of — and County of — aforesaid; and so being thereof peaceably possessed, on the — Day of — last past, E. F. of — and other Malefactors, to the Jurors aforesaid unknown, with Force and Arms, to wit, Clubs, Swords, and Pistols, into the Messuage and Appurtenances aforesaid entered, and him the said C. D. thereof with Force disseised, and thence expelled, and such Disseisin and Expulsion of the said C. D. from the said — Day of — until the Day of taking this Inquisition, with Force held, and as yet holds, to the great Disturbance of the King's Peace, and contrary to the Form of the Statute in that Case made and provided. In Witness whereof, the said Jurors to this Inquisition have severally put their Seals, the Day, Year, and Place, first above-mentioned.

[note]

Warrant for Restitution.

— County, ss.

A. B. Esq; and Justice of Peace of the said County, To the Sheriff thereof, Greeting. Whereas by a certain Inquisition taken before me, the — Day of — last past, at — in the Parish of — and County aforesaid, upon the Oath of G. H. I. K. &c. according to the Form of the Statute in that Case made and provided, it was found, that E. F. and others, on the — Day of — last past, with Force and Arms, entered into the Messuage and Appurtenances of C. D. in the Parish of — and County aforesaid, and him the said C. D. thereof with Force disseised and expelled, and such disseised and Expulsion of the said C. D. from the said — Day of — until the Day of taking the Inquisition aforesaid, with Force held, and as yet holds, as by the said Inquisition of Record doth more fully appear: These are therefore, in his Majesty's Name, to command you to go to the said Messuage, and other the Premises, and cause the same, with the Appurtenances, to be reseized, and the aforesaid C. D. to be restored thereto, in as full and ample Manner, as he was before the said Entry was made. And hereof fail not. Given under my Hand and Seal, &c.

[note]

Indictment for a forcible Entry and Detainer, upon the Statutes.

THE Jurors for our Lord the King, upon their Oath present, That C. D. late of the Parish of — in the County of — Gent. on the — Day of —





in the — Year of our Sovereign Lord George the Third, King of Great-Britain, &c. was possessed of a certain Messuage, with the Appurtenances, situate, lying, and being in — in the Parish of — aforesaid, in the County aforesaid, for a certain Term of Years, then and still to come, and unexpired; and being so possessed thereof, one E. F. late of the same Parish of — in the said County of — Baker, afterwards, to wit, the said — Day of — in the Year aforesaid, into the said Messuage, with the Appurtenances aforesaid, in — in the Parish and County aforesaid, with Force and Arms, and with strong Hand, unlawfully did enter, and the said C. D. from the peaceable Possession of the said Messuage, with the Appurtenances aforesaid, then and there, with Force and Arms, and with strong Hand, unlawfully did expel and put out; and the said C. D. from the Possession thereof, so as aforesaid, with Force and Arms, and with strong Hand, being-unlawfully expelled and put out, the said E. F. him the said C. D. from the aforesaid — Day of — in the Year aforesaid, until the Day of the taking this Inquisition, from the Possession of the said Messuage, with the Appurtenances aforesaid, with Force and Arms, and with strong Hand, unlawfully and injuriously then and there did keep out, and still doth keep out, to the great Damage of the said C. D. and against the Form of the Statute in that Case made and provided.

[note]FORESTALLERS, ENGROSSERS, and
REGRATORS.

A FORESTALLER is, by my Lord Coke, called an Oppressor of the Poor, and a Public Enemy to the Common Wealth, and therefore punishable at Common Law.

[note]

The Statute 5 & 6 Edw. 6. cap. 14. describes him thus, viz.

1. He who buys, contracts for, or causes to be bought, any Merchandize or Victual, in the Way, before it is brought to Market.

2. He who dissuades People from bringing Commodities to Market.

3. He who persuades them to advance the Price, after brought there.





A Regrator, is he who buys Victual dead or alive, brought to Market to be sold, and sells the same again in the same Market, or in another within four Miles. 13 Eliz. c. 25.

[note]

An Engrosser, is he who buys or contracts for Corn on the Ground, without purchasing the Land; or other dead Victual, with Intent to sell again. 5 Eliz. cap. 12.

[note]

Victuallers, Badgers, Drovers, Fishmongers, and Butchers, buying only Things belonging to their Trades, and Buyers of foreign Commodities, not being Salt, or Fish, are excepted.

Offenders may be prosecuted by Information or Indictment, before Justices of Peace, in Sessions, and upon Confession, Conviction by two Witnesses, or Presentment of a Grand-Jury, they forfeit,

[note]

For the first Offence, the Goods so bought, and Two Months Imprisonment, without Bail.

Second Offence, double the Value of the Goods, and Six Months Imprisonment.

Third Offence, all his Goods, must stand in the Pillory, and be imprisoned, during the King's Pleasure.

One Moiety of the Forfeitures to the King, the other to the Prosecutor, who may take Execution, upon Judgment given by the Court, before whom the Offender shall be convicted.

Prosecution within two Years.

By the Common Law, all Endeavours to enhance the Price of any Merchandize, or Practices tending thereto, such as spreading false Reports, buying Things in a Market before the accustomed Hour, or buying and selling again the same Thing in the same Market, or any other such like Devices, are highly criminal, and punishable by Fine and Imprisonment. 1 Haw. 234.

FORFEITURE.

IS occasioned by the Transgression of some Penal Law, whereby the Offender loseth his Lands and Goods, or is liable to Penalties of Fine, corporal Punishment, or Imprisonment.

[note]

Full Forfeiture is Loss of Life and Member, and all else that a Man hath, Manwood 1. p. 341.





Forfeiture of Goods differs from Confiscation, because Forfeiture is more general, and occasioned by some criminal Offence: Confiscation is particular to such who forfeit only to the King, for Frauds in his Customs. Stamf. P. C. 186.

Where Lands are forfeited, it shall be from the Time of the Offence committed: But where Goods are forfeited, it shall be from the Time of Attainder, for the Goods of a Felon are his own, till Conviction or Attainder. 1 R. 2. cap. 3.

If a Man is acquitted of Felony, but the Jury find that he fled, he shall lose his Goods which he had at the Time of Acquittal, and not at the Time of the Flight. Gould, 135.

Forfeiture of Goods comprehends every Thing under the Name of personal Estate, whether in Action or Possession, and are forfeited in the following Cases.

[note]

1. Upon Conviction of Treason or Felony.

2. Upon a Flight found before the Coroner, upon View of the dead Body.

3. Upon an Acquittal of a capital Felony, if the Party is found to have fled.

4. A Person indicted of Petit Larceny, and acquitted, if it be found he fled for it, also forfeits his Goods. 2 Haw. 451.

A Convict within Clergy forfeits his Goods, though he be burnt in the Hand; yet he may purchase other Goods, as he is restored to his Credit. 2 H. H. 388.

Although a Person may be attainted of Felony, yet his Wife shall not lose her Dower in his Lands. 1 Ed. 6. c. 12.

But where he is attainted of Treason, she forfeits her Dower. 5 & 6 Ed. 6. c. 11. Except in some Kinds of Treason, particularly with Regard to Coin, where there is a saving of Dower by Statute.

Attainder of Treason or Felony so far corrupts or stains the Blood, that the Party loses all the Nobility or Gentility he might have had, and becomes ignoble. 2 Haw. 456.

But the King's Pardon makes Restitution to Issues born after Corruption. 1 H. H. 358.

Yet Restitution of Blood, in its true Nature and Extent, can only be by Act of Parliament. 2 Haw. 458. 1 H. H. 358.





FORGERY.

THIS is an Offence at Common Law, where any Person fraudulently makes and publishes false Writings, to the Prejudice of another's Right. Fits N. Brev. 96.

It is likewise punishable by the Statute 5 Eliz. cap. 14. where any Person shall forge and publish,

1. False Deeds or Conveyances of Lands or Tenements.

2. Writings sealed.

3. Court Rolls or Records.

4. Wills; whereby the Freehold, Right, or Title of Lands, may be charged.

Upon Conviction for any of these, the Offender, for the first Offence, shall be put in the Pillory, his Ears cut off there, his Nostrils slit, shall forfeit the Profits of his Lands to the King, and be imprisoned for Life.

[note]

And for forging a Lease, Annuity, Obligation, Bill, Acquittance, Release, or other Discharge of a personal Matter, the Offender shall be pillored, lose one of his Ears, and be imprisoned one Year, without Bail, for the first Offence.

A second Offence, in any of the Cases above mentioned, Felony.

Conviction must be before Justices of Assize, or Oyer and Terminer, upon Indictment; and therefore these Offences are not cognizable before Justices of Peace.

By the Act for Inspection of Commodities, if any Person shall forge or counterfeit any Inspectors Note, or tender the same in Payment, knowing the same to be counterfeited; or export any Commodity with a forged or counterfeit Brand; such Person, for the first Offence, shall receive on his bare Back 39 Lashes, and suffer one Month's Imprisonment; and for the second Offence, shall be guilty of Felony.

[note]

And by the Act for amending the Staple of Tobacco, if any Person shall forge or counterfeit any Inspectors Note, Stamp, or Receipt, or export any Tobacco with a forged Stamp, he shall be guilty of Felony, and suffer accordingly.





GAMING.

ONE Justice of Peace may enter any common Place where unlawful Games are suspected to be used, and may commit those who keep unlawful Gaming Houses, till they find Sureties, by Recognizance, not to keep such Houses any more. The Party keeping such House, forfeits 40s. per Day, to the King and Prosecutor; and every Person playing there, 6s. 8d. for every Offence, and he may be committed, without Bail, till he enter into Recognizance not to play any more. 33 H. 8. cap. 9.

[note]

Unlawful Games are,

Bear-bating,Cock-fighting,Foot-ball,
Bull-baiting,Coits,Nine-pins,
Bowling,Dice,Tennis,
Cards.

[note]

Persons prohibited from Play at any of these Games, except at Christmas, in their own Houses, or by Servants, in their Masters Houses, and with their Leave, are,

Apprentices,Husbandmen,Servants of all Kinds,
Artificers,Labourers,
Fishermen,Mariners,Watermen,

on Penalty of 20s. for every Offence, to the King and Informer.

By the Statute 39 Eliz. cap. 4. Fencing and Stage-Plays are unlawful, and Offenders in that Kind are made Vagabonds.

But the King may licence the moderate Use of such Games, as it shall seem good to his Majesty. Co. 11, 85. Dalt. 91.

Playing at Cards, Dice, and the like, are not prohibited at Common Law, but only that Deceit shall not be used in such Play; neither are they evil in themselves, abstractedly considered: And therefore the Statute which prohibits them to certain Persons and Places, yet exempts others, and tolerates them to all, at certain Times, and on certain Conditions. The Intent and Policy of the Statute appears to be, to prevent unlawful, crafty, and deceitful Gaming, and the inordinate haunting Ale-Houses and Tippling Places. Dalt. 91.

And it was resolved by the Judges, 3 Jac. 1. that if Guests in an Inn or Tavern call for Dice, Tables, &c. and play for their Recreation, and for no Gain to the





Owner of the House, this is not within the Statute of 33 H. 8. cap. 9. If the House be not kept for Gaming, for Lucre or Gain, but Play is only used for Recreation, and for no Profit to the Master of the House, neither he, nor Persons playing, are within the Penalties of that Law.

One Justice may commit for cheating at Play. Cro. Car. 235.

By an Act of Assembly of this Province, if any Tavern Keeper shall suffer any Gaming within his House, Booth, Stall, or Arbour, or other Place (Whist, Quadrille, Picquet, Backgammon, and Billiards, excepted) he shall for the first Offence, upon Conviction thereof before the County Court, forfeit his Licence, and be further liable to Indictment and Fine, at the Discretion of the Court. And if any Person shall win at any Game (Horse-Racing excepted) more than Five Shillings, in Twenty Four Hours, or the Value thereof in Goods, shall forfeit all such Monies or Goods; Half to the Informer, and Half to the Parish: But if the Informer is a Party in such Gaming, the whole shall be forfeited to the Parish.

[note]

Upon Information made to any Justice or Justices of the Peace, or in View of them, it shall appear that any Person has won at any Game more than Five Shillings in Twenty Four Hours, or the Value thereof in any Goods, such Justice or Court, having Cognizance thereof, may cause such Person to be brought before them, to be examined on Oath concerning such Offence, also any Witnesses that may be necessary; and if it shall appear that such Person is guilty of winning more than Five Shillings in Twenty Four Hours, as aforesaid, such Justice or Court shall award Execution against the Body, or Goods and Chattels, Lands and Tenements of the Offender.

All Deeds, Mortgages, Bills, Bonds, Notes, Assumptions, or Specialties whatsoever, which shall hereafter be given for the Payment of any Sums of Money or Goods lost at Gaming, upon due Proof, shall be void.

If any idle, disorderly, or evil-disposed Persons, shall be found loitering or gaming, any Justice of the Peace may issue his Warrant against them, and cause them to be apprehended, and brought before him, and on Conviction, to bind such Persons to good Behaviour for





Twelve Months, in the Sum of Twenty Pounds, or commit them to Gaol. And if any such Person shall be convicted a second Time, he shall forfeit Six Pounds, one Half to the Informer, the other Half to the Parish; recoverable by Action of Debt or Information, in any Court of Record.

Any Person who may think himself aggrieved by the Judgment of the County Court, may appeal to the Superior Court; or by the Judgment of a Justice of the Peace, may appeal to the County Court; but must give Notice to the Appellee in Writing, of such Appeal, and enter into Recognizance, with Two Securities, before some Justice, to try such Appeal at the next Court.

No Judgment obtained before a Justice of the Peace, shall be set aside for Want of Form, where the Fact is sufficiently proved; nor such Judgment removed to the Superior Court.

Warrant to apprehend an idle disorderly Person, found gaming.

— County, ss.

To A. B. Constable, or any lawful Officer of the said County.

WHEREAS I am informed, that A. B. of — is an idle disorderly Person, and goes about gaming and misbehaving himself, contrary to the Act of Assembly in that Case made and provided. These are therefore, in his Majesty's Name, to require you to apprehend the said A. B. and bring him before me, or some other Magistrate of this County, to be examined concerning the Premises. Given under my Hand, this — Day of —

[note]

If the Party is bound to good Behaviour on this Warrant, the Recognizance may be in the common Form, with this Condition.

THE Condition of this Recognizance is, that whereas the above bound A. B. was this Day brought before me, C. D. Esq; one of his Majesty's Justices of the Peace for the County of — by my Warrant, on Suspicion of being an idle disorderly Person, going about gaming and misbehaving himself; and the said A. B. on his Examination before me, coming strictly within the Meaning of the Act of Assembly to





prevent Gaming, he was accordingly required to give Security for his good Behaviour, as by that Act is directed: If therefore the said A. B. shall be of good Behaviour to our Sovereign Lord the King, and to all his Majesty's Subjects within this Province, for and during the Space of Twelve Months, next ensuing the Date of these Presents, then this Recognizance to be void.

[note]

Mittimus for a disorderly person that refuses to be bound.

To the Keeper of the Gaol of — County.

I SEND you herewith the Body of A. B. late of — taken upon my Warrant, proved to be an idle disorderly Person, going about gaming, and misbehaving himself, and who refuses to give Security for his good Behaviour, as the Law directs. You are therefore to receive the said A. B. into your Gaol and Custody, and him safely keep, until be shall give such Security, or be discharged by due Course of Law. Given under my Hand, this — Day of —

[note]GAOL.

GAOL and Prison are synonimous Terms, of like Signification, equally restraining the Liberty of the Prisoner: But in Propriety of Speech, a Criminal shall be committed to Gaol, a Debtor to Prison; and with this Difference, that the Party imprisoned upon civil Process, giving Security, may have Liberty of the Prison Bounds, but a Criminal committed to Gaol must be kept in safe and close Custody, within such Gaol. Co. 8 Rep.

[note]

Imprisonment is the taking any Person from his own Liberty into Custody of the Law, to answer what is objected against him; and therefore to break Prison, is to fly from the Trial of the Law, and is adjudged Felony in him who is arrested for Felony, otherwise not.

[note]

Out of this one Fact arises sometimes a treble Offence, and Felony, viz.

1. In the Prisoner; which is properly called Breach of Prison.

2. In the Party assisting the Prisoner to escape; which is termed Rescous.

3. In the Officer or Party, by whose wilful Default he is suffered to go; and this is an Escape. Lamb.





Every Person arrested for Felony, or Suspicion thereof, or taken upon any legal Process, is a Prisoner, as well without the Prison as in it, or in the Stocks, or in Custody of the Officer who arrested him, or of the Party who has the keeping of him.

If the Gaoler permits a Felon to escape, ’tis Felony; but if he kill an unruly Prisoner, ’tis not Felony; if by hard Usage, ’tis Murder: But if the Escape is by Negligence, and not voluntary, ’tis Felony in the Prisoner, and a Misdemeanor in the Gaoler, and finable.

If he refuse to receive a Felon sent to him by lawful Warrant, he shall be fined; and the Officers of the Town or County must keep him till Gaol Delivery. Nels. 315.

Murderers and Felons shall be imprisoned in the common Gaol, and not elsewhere.

Every suffering a Prisoner to escape, is a Breach of Prison in the Party escaped: And if a Man arrest a Felon, and after lets him go at large, if the Party was arrested for Felony, it is Felony in him who suffered him to escape; if for Treason, ’tis Treason; if for Trespass, ’tis Trespass; and the like in other Cases. Stamf. l. 1. cap. 26.

At Common Law, all Breach of Prison seems to be Felony: But by the Statute 1 Ed. 2. he who breaks Prison shall be subject to Judgment of Life or Member, if the Cause for which he was imprisoned require the like Judgment. H. P. C. 107.

If the Gaoler voluntarily permit him to escape, ’tis Felony in the Gaoler, not in the Prisoner: So if the Prison be broke by Strangers, without his Procurement, and he go out, the Doors being open, no Felony in the Prisoner. Ibid 108.

There must be actual Force used by the Prisoner, or others by his Procurement, to make it Felony in him: Going out, the Doors open, no Felony.

If the Prison be on Fire by Casualty, and the Prisoners break out for Safety of their Lives, this is no Felony, but excusable by Necessity, and the Law of Nature. Plowd. 13.

Prisoners charged in Execution for Debt, may have the Prison Bounds. See PRISON BOUNDS.

The Justices of every County in this Province are to cause to be built in every County, a good and sufficient Gaol, and keep it in Repair, for the safe-keeping of Prisoners thereunto committed.





The several Districts in the Province are also to build sufficient Gaols, to which all Criminals to be tried in such Districts for any Crime, must be committed.

For Gaolers Fees, see CRIMINALS.

HABEAS CORPUS. See BAIL.

HOG-STEALING. See CATTLE & HOGS.

HOMICIDE.

IN its proper Signification extends to all Acts whatsoever, whereby the untimely Death of a Man ensues; but in a legal Sense, it is applicable only to,

[note]

1. Manslaughter; the killing a Man upon sudden Provocation, in Heat of Blood, without any Malice.

2. Chance Medley; where a Man is by Misfortune casually killed by another, who is doing any Thing lawful, and without any Intent to hurt.

3. Necessity; where a Felon is executed by a lawful Officer, or killed in resisting such Officer; or where a Man kills another, in Defence of his Person, House, or Goods.

4. Casual Death; when a Man is slain otherwise than by his own Act, or the Hands of another; as by the Fall of a Horse, Cart, &c.

1. Manslaughter: This must be no deliberate Act, but the Provocation must be great and apparent, and the falling out sudden and unexpected, and it must be without Intention of any personal Wrong, or to revenge any former Quarrel; for if the Intent is ill, or personal Malice appear, ’tis Murder.

[note]

The Act, occasioning the Death, must be unlawful; for if lawful, ’tis Chance Medley.

A sudden Provocation, and Death ensuing, so far extenuates the Crime, as to make it Manslaughter. 2 Cro. 296.

The Husband kills another, committing Adultery with his Wife, Manslaughter. Raymond. 212.

A Prisoner in Execution for Debt, escaping, and the Keeper coming to the Place where he is, kills him in





Pursuit, or resisting, ’tis Manslaughter. 1 Roll. Rep. 189.

Officer coming to serve an Execution, and the Debtor shut his Door, which the Officer breaks open, and one is killed, ’tis Manslaughter, because the breaking of the Door was unlawful. Nels. 345.

Entering an House with Force; those turned out of Possession comes to set it on Fire, and one within shoots and kills another without Doors, Manslaughter, because the Entry was unlawful. H. P. C. 56.

To fight, and part presently, meet again, and one is killed; this is a continued Affray, and therefore Manslaughter.

But if an Ideot or Madman, or Person born deaf and dumb, killeth another, this is no Felony, because such cannot know evil, neither can they have a felonious Intent; and no Felony can be committed without a felonious Purpose. Dalt. 350.

A Person in Law accounted Non Compos Mentis, is,

[note]

1. A natural Fool, who is so from his Birth.

2. He who by Sickness, or other Accident, loses his Memory.

3. A Lunatic, sometimes of good Understanding and Memory, sometimes again Non Compos Mentis. Co. 124.

But if another procure a Madman to kill any Person, though the Madman is excused, yet the Procurer shall be punished as a principal Felon. Ba. 57.

An Infant under 14 Years shall not be arraigned for Felony. Co. Lit. 147.

But yet an Infant, above 8 Years of Age, may commit Homicide, and shall be hanged for it; if it appear that he had knowledge of Good and Evil, and of the Peril and Danger of that Offence. 3 H. 7. cap. 1 & 12. Stamf. 27.

If a drunken Man kills another, this is Felony of Death: Sir Ed. Coke calls a Drunkard a voluntary Devil; and saith, ‘That what Hurt soever he doeth, his Drunkenness aggravates it.’ Co. Lit. 247.

The Offender in Manslaughter has the Benefit of Clergy the first Time, but forfeits his Goods and Chattels.

2. Chance Medley: Killing another, by Misfortune or Accident, as a Man correcting his Child or Servant, and Death ensuing; or felling a Tree, building a House,





raising a Frame, shooting at a lawful Mark, or doing any Thing lawful, and another is killed, without the Will or Intent of the Party.

[note]

There is no express Judgment in Chance Medley, but the Offender forfeits his Goods, and has a Pardon of Course.

3. Necessity: And this may be distinguished into,

[note]

1. Public, or

2. Private.

Public Necessity is by a lawful Officer, executing a Criminal condemned before a Judge having proper Jurisdiction, and pursuant to such Judgment, by legal Warrant.

But if ’tis by a Stranger, and not by the Sheriff, or some Person by him deputed, ’tis Felony.

If a Justice of Peace give Judgment in Treason or Felony, the Execution is Murder, both in him and in the Officer, because it's for a Matter where a Justice hath no Jurisdiction of Trial, or Conviction; but if in Trespass he give Judgment of Death, ’tis Felony in him, but not in the Officer. Nels. 346.

The Execution must be pursuant to the Judgment, and in the Method prescribed by Law: A Criminal attainted of Felony, shall have Judgment to be hanged; but if the Sheriff beheads, or otherwise kills him, this is Murder in the Sheriff and his Officers. Dalt. 348.

In Cases criminal; a Man indicted for Felony is killed by an Officer, having a Warrant to apprehend him, whom he resists; or a Prisoner, for Felony actually done, endeavouring to escape from the Officer carrying him to Gaol, and is killed; or a Prisoner killed by the Gaoler, the Prisoner assaulting him: In such Cases, the Officer will be justified by his Authority.

For if a Felon cannot be taken without killing, he who kills him must be acquitted, without any Forfeiture, because every Man is warranted by Law to apprehend him, but then there must be a Felony actually done; and where a Man has a Warrant to take a Felon, who resists, or flies, and is pursued, he may be killed, if he will not yield himself. 3 Inst. 221. Dect. & Stud. l. 2. cap. 41.

Private Necessity sometimes arises upon Execution of civil Process: As resisting an Officer who has any legal Process, and killed by him; but here the Special Matter must be given in Evidence, and being found for the





Officer, he is to be acquitted: And the Necessity must be unavoidable, without any Colour of Malice. Dalt. 356.

[note]

So likewise in necessary Defence of a Man's Person, Family, House or Goods, it is justifiable against Thieves, Robbers, or other Felons, attempting to commit Felony: But if I kill a Man claiming Title to my House, or coming to commit Trespass, and endeavouring to enter, this is Manslaughter.

In the Cases before-mentioned, Necessity justifies the Fact, and therefore no Forfeiture.

Self-Defence is excusable only upon inevitable Necessity: The Party assaulted must give Back as far as he can, without endangering his own Life, and the mortal Wound must not be given till after such Retreat, otherwise ’tis Manslaughter.

And here the Party assaulted has Pardon of Life and Lands, but forfeits his Goods and Chattels.

If a Woman kills a Man attempting to ravish her, it's justifiable: So it is if a Servant, in Defence of his Master's Person or House, kills another; if it cannot be otherwise avoided. Dalt. 358.

The Servant may justify the killing him who robbed and killed his Master, so that it be done presently. 21 Hen. 7. cap. 9.

4. Casual Death: Occasioned by Means or Fall of a Horse, Cart, Ox, or other Beast or Thing moveable, animate or inanimate, which thereby becomes a Deodand, and is forfeited to the King. 3 Inst. 57.

[note]

But this must be found by Inquisition taken before the Coroner, and the Forfeiture shall accrue from the Time of the Stroke given; so that if the Owner sell the Goods after that Time, and before Inquisition taken, the Property is not bound, but the King shall be entitled to it. Nels. 347.

All Homicide is to be inquired of before the Coroner, upon View of the dead Body, by Inquisition of Twelve Freeholders of the Parish and County where the Party was killed: But if the Body cannot be found, Justices of Oyer and Terminer may inquire of the Felony. Dalt. 342.

Felo de se. See Tit. MURDER.

Homicide committed upon the Sea is within the Admiral's Jurisdiction, and inquirable before a Court of Vice-Admiralty here.





HORSES AND MARES.

BY an Act of Assembly of this Province, for amending the Breed of Horses, no Person, not having a Freehold of 50 Acres of Land, or occupying Lands or Tenements, shall keep a stoned Horse or Horses, or unspayed Mare or Mares, or any more than one Gelding or spayed Mare, to run at large.

[note]

If any Person shall offend herein, it shall be lawful for any Person to take up such Horse or Mare, who shall give Notice in Writing to the Owner, within three Days after, and such Owner may appear at the next County Court, and if he can prove himself qualified, according to the Directions of this Act, to keep such Horse or Mare, he shall have them restored to him; if otherwise, he shall pay to the Taker up Twenty Shillings for every Horse or Mare taken up; and if he shall neglect so to do, the Taker up may sell such Horse or Mare at Vendue, to the highest Bidder; one Half to himself, and the other Half to be paid to the Owner of such Horse or Mare.

If Notice shall be given to the Owner, of the taking up of any Horse or Mare, within less than Ten Days before the Sitting of the Court, he may appear at the next succeeding Court.

No Person shall suffer to run at large any stoned Horse, of Two Years old, unless such Horse shall be Fourteen Hands in Height at least, on Penalty of forfeiting the same, or Twenty Shillings, to the Taker up of such Horse; provided he be found running at large, and not within the Confine of any Fence, Water, Marsh, or Swamp.

The Taker up of such Horse shall within Ten Days carry him before some Magistrate, and make Oath to the same, when such Justice shall cause such Horse to be measured, and if he find him not Fourteen Hands high at Two Years old, he shall give a Certificate thereof from under his Hand; and the Taker up shall thereupon keep such Horse until the Owner shall redeem him, by paying Twenty Shillings as aforesaid.

The Taker up of such Horse shall advertise at the Court-House the Colour and Brand of such Horse; and if the Owner shall within Ten Days tender to the Taker up, or give Security for the Payment of Twenty





Shillings, he may redeem such Horse; otherwise the Taker up shall be intitled to the Property thereof.

The Horse must be measured from the lowest Part of the Hoof of the Fore Foot, to the highest Part of his Withers.

Each Hand is Four Inches, Standard Measure.

Certificate of the Seisure of a stoned Horse.

— County, ss.

I A. B. Esq; one of his Majesty's Justices of the Peace of the said County, do hereby certify, that on the — Day of — 1774, C. D. of this County, Planter, brought before me one stoned Horse, Two Years old, branded — of — Colour, and made Oath, that he took up the said stoned Horse running at large on Lands not fenced or inclosed, in this County: Whereupon I caused the said Horse to be measured, according to an Act of Assembly in that Case made and provided; and it then appeared to me, that the said Horse was not of the Height of Fourteen Hands.

[note]

A. B.

Horse stealing is Felony, without Benefit of Clergy, in the Principal, and all Accessaries before or after the Fact. 31 Eliz. cap. 12.

HUE AND CRY.

SIGNIFIES Pursuit of a Felon, by Horn and by Voice: If the Party robbed, or any in Company with a Person murdered or robbed, come to the next Constable, and require him to raise Hue and Cry, and to pursue the Offender, describing his Person, and shewing as near as he can which Way he is gone; the Constable must forthwith call upon the Men of his Precinct, for Aid in seeking the Felon, and if he be not found there, then to give Notice to the next Constable, and he to the next, till the Offender is apprehended, or pursued to the Sea Side. Bract. l. 3. cap. 5. Crompt. 160.

[note]

’Tis to be made from Town to Town, and from County to County, by Horsemen as well as Footmen.

He that goeth not upon Hue and Cry, at the Command of the Sheriff or Constable, shall be grievously fined and imprisoned. Co. 2 Inst. cap. 9.





Officers, and all other Persons who refuse or neglect to make Hue and Cry, or do not pursue it when made, shall be fined and imprisoned by the Justices in Sessions. 13 Edw. 1. & 27 Eliz.

Where a Felony is committed, or any Person dangerously wounded, and the Offenders fled, the Party grieved, or any other in his Behalf, may acquaint the next Constable therewith, and require him to raise Hue and Cry.

The Party robbed should give Notice as soon as he can. Noy 155.

But the usual Way is for the Party to go to a Justice of Peace, and make Information of the Felony; and thereupon he is examined, viz.

THE Examination of A. B. of — taken upon Oath before I. C. Esq; a Justice of Peace of the said County, this — Day of —

[note]

THIS Examinant saith, That

Sworn before me, A. B.

I. C.

Warrant for Hue and Cry.

— County, ss.

To all Sheriffs and Constables within this Province, to whom these Presents shall come.

WHEREAS A. B. of — hath this Day made Oath before me, C. D. Esq; one of his Majesty's Justices of the Peace for the said County, that he was last Night robbed of [here describe the Goods stolen] by Persons unknown, who are since fled for the same, and not yet apprehended: Therefore, in his Majesty's Name, I charge and command you, and every of you, in your several Precincts, to search diligently for the said Persons, and to make Hue and Cry after them, from Town to Town, and from County to County, as well by Horsemen as Footmen; and if you shall find the Person or Persons by whom the said Robbery was committed, or whom you shall have just Cause to suspect thereof, that then you apprehend and bring him, her, or them, before a Justice of Peace of the County where he, she, or they, shall be taken, to be dealt with as the Law directs. Given under my Hand and Seal, &c.

[note]



If the Offender is taken in another County, and brought before a Justice, he must examine the Prisoner, and those that bring him.

Then the Prisoner is to be committed. See Tit. CRIMINALS.

It may be necessary to give immediate Notice of the Commitment, to the Justice who issued the Warrant of Hue and Cry, that he may certify the Examinations by him taken, to the Court where the Prisoner is to be tried.

Mittimus.

To the Sheriff, or Keeper of the Gaol of — County.

I SEND you herewith the Bodies of E. F. late of — and G. H. late of — taken by Hue and Cry, upon Warrant of C. D. Esq; a Justice of Peace of the County of — and brought before me by J. O. Constable, the said E. F. and G. H. being suspected of a Robbery by them committed in the said County of — in robbing A. B. of [here describe the Goods] and the same Goods, as is suspected, or Part thereof, having been found in their Custody, and taken with them when they were apprehended: And I command you, in his Majesty's Name, to receive the said E. F. and G. H. into your Gaol and Custody, and them there safely to keep, until they shall be thence discharged by due Course of Law. Given under my Hand and Seal, &c.

[note]

If Goods are retaken, they may remain in Custody of the Officer who apprehended the Felon, till Restitution is awarded by the Justices; and they ought to be produced in open Court.

Hue and Cry raised, without Cause, is a Breach of the Peace.

If it be made falsely, and the Party at whose Suit it is raised shall enter into a House, tho’ with a Constable, and bind the Master, and rob the House in the Night, ’tis Burglary. Nels. 256.

HUNTING. See DEER. FIRE-HUNTING.





INDICTMENT

IS an Accusation or Bill exhibited to a Jury, at the Suit of the King, against any Person, for Felony, or Breach of some Penal Law.

[note]

It is an Accusation, because the Jury that inquires of the Offence, doth not receive it until the Informer subscribes his Name: But yet it differs from an Accusation in this, that the Preferrer of the Bill is not tied to the Proof thereof, except there appear Conspiracy. Leigh. Phil. Com. 85. Stamf. P. C. l. 2. cap. 23, &c.

It also differs from a Presentment, which is an Accusation of a Grand Jury, without any Bill brought before them.

Every Indictment ought to be preferred against the Party for some Offence committed by him, either against the Common Law, or against some Statute: For Indictments are to punish public Offences only, and those done against the public Peace; but not private Trespassers, for which the Law gives particular Actions. Style 269, 270.

An Indictment lies for conspiring to do an illegal Act, altho’ the Act is not done; and against the Procurers, altho’ the Actors are acquitted. 1 Lev. 62, 125.

Indictments are to be preferred only for criminal or penal, not for civil Matters; otherwise the Defendant would be liable to be twice punished for one Offence, which is against the Great Charter.

This being in the Nature of a Declaration for the King, upon an Offence committed against the common or some penal Law, must be certain, and cannot be supplied by Implication or Intendment: For if but one Word of Substance be omitted, the whole Indictment is nought, and may be quashed.

It must be certain, that the Party indicted may know how to plead to it, or traverse; and it ought to be more certain than Pleadings at Common Law need to be, because it is more penal, and must be precisely answered unto.

But if an Indictment be drawn so general and uncertain, that the Party indicted cannot make certain Answer to it, it is not good, and may be quashed; otherwise the Defendant would be insnared thereby. Style 266.

Altho’ a Bill of Indictment be preferred, upon Oath, to a Grand Jury, yet they are not bound to find the





Bill, if they see Cause to the contrary: And on the other Side, tho’ such Bill be preferred, without Oath, yet they may find the Bill, if they see Cause.

In every Indictment six Things are requisite;

1. The Name, Surname, and Addition, of the Party indicted.

2. The Day and Year when the Offence was committed.

3. The Place where.

4. The Name and Addition of the Party grieved.

5. The particular Names and Value of the Goods or Things stolen, or taken away: The just Value is necessary, because ’tis that which makes the Offence either Petty Larceny or Felony; and if the Indictment is in Trespass, then ’tis to aggravate the Fault.

6. The Nature of the Offence, and the Manner how it was committed.

Upon a Bill of Indictment found, there Issues a casior against the Party indicted, and if taken, the Sheriff is to carry him before some Magistrate, where he must enter into a Recognizance, with Sureties, in a Sum discretionary in the Justice, to appear at the next Court, and answer the Bill.

If he cannot be taken, an Attachment may go against his Goods, to force him to Appearance.

But if the Sheriff returns, that the Party hath no Goods, then he may be outlawed.

If the Party appears, he may confess the Indictment, or traverse, or plead to it, and move to have it quashed.

All Indictments may be traversed; that is, the Defendant may take Issue upon the principal Matter, and deny the chief Point in the Indictment; and this is the most ancient and solemn Way of trying the Fact.

The Traverse is to be tried by a Jury, at the Bar, except in Riots and forcible Entries.

Or he may shew the Insufficiency of the Indictment, and plead over to the Felony.

Tho’ there be Twenty of the Grand Jury, yet if one was outlawed, or taken at the Nomination of another, it avoids the whole Indictment. Hales P. C. 202.

If the first Indictment was void, for Insufficiency, yet in some Cases the Offender may be again indicted and prosecuted for the same Offence.





The Court will not quash an Indictment preferred for the Public Good, though it be not a good Indictment, but will put the Party indicted to traverse it, or plead to it: For it is by Favour of the Court that any Indictment is quashed, and be the Indictment good or bad, it is no Prejudice to the Party to traverse, or plead to it. Style 268.

If a Writ of Error is brought upon an Indictment, the Defendant must appear, and put in Bail, in Person. 2 Cro. 61.

There ought to be two lawful Witnesses to prove every Indictment, except in such Cases where by Law special Provision is made, that the Oath of one Witness shall be a sufficient Conviction.

An Accuser by Hearsay is no lawful Witness. H. P. C. 208.

Indictments upon a Penal Law, where the King is to have the Forfeiture, must be brought within Two Years after the Offence: If a common Person is to have it, then within a Year, except it be otherwise directed by the Law, which creates the Offence. Nels. 367.

By the Common Law, the Court may quash any Indictment for Insufficiency, as will make the Judgment thereon erroneous.

The Court will not quash Indictments for Forgery, Perjury, and Nusances, notwithstanding the Indictments are faulty; and it is against the Course of the Court to quash an Indictment for Extortion. 2 Lill. 41. 5 Mod. 31.

If an Indictment be good in Part, the Court will not quash it; for if an Offence sufficient to maintain the Indictment be well laid, ’tis good, altho’ other Facts are ill laid. Latch. 173.

One that is convicted on an erroneous Indictment, cannot, after the Conviction, move to have the Indictment quashed; but must bring his Writ of Error, to reverse the Judgment.

The Court may mend Matter of Form, but not of Substance, in an Indictment; and it is usual, when the Grand Jury present their Bills of Indictment to the Court, for the Court to ask them whether they agree to Amendment of Form only.





INFANT.

AT Common Law, every Person under the Age of Twenty One Years is an Infant; but this holds only in civil Causes, for in criminal Matters the Law regards the Age of Discretion, which is Fourteen Years. Co. Lit. l. 3. sec. 405.

[note]

And in Cases civil there are several Exceptions, as,

The Age for a Man to marry is 14, and for a Woman 12. Hob. 225.

An Infant of 17 shall take Administration, or prove a Will, in his own Right; for then the Power of Administrator or Executor, during Minority, ceaseth. Vaugh. 93.

And whatever Act he doth, which was his Duty to do, as giving Release upon receiving all Money due, Payment of just Debts, &c. shall bind him. Co. 5. Rep. 27.

Surety of the Peace is grantable to or against an Infant, tho’ under 14 Years of Age. Dalt. 269.

An Infant of 14 Years may commit forcible Entry or Detainder, for which he may be fined, and he shall find Sureties for his good Behaviour: But he shall suffer no Imprisonment, nor corporal Pains, for Breach of any Penal Law, wherein an Infant is not expressly named; yet he shall forfeit the Penalty of a Penal Law, and so may lose his Goods. Doct. & Stud. p. 147, 148.

An Infant above 18 may be a Disseiser with Force, and may be imprisoned for the same. 22 Edw. 4. cap. 9.

In all Cases of Treason or Felony, Infancy is no Plea; but the Offender, tho’ under 14, shall be liable to the Punishments by Law inflicted for such Offence, if it appear that he had Knowledge of Good and Evil. Dalt. 350.

INFORMATION.

EVERY Justice of Peace must receive Informations against Felons, or Persons suspected of Felony. See Tit. CRIMINALS.





So likewise for Breach of such Penal Laws as are cognizable before them.

Informers are either,

1. Honorary; as the Attorney General, or other Attorney for the King, who are bound to inform, by Reason of their Office, tho’ involuntarily.

[note]

2. Common Informers; and these are always voluntary.

The Statute 18 Eliz. cap. 5. and other Statutes relating to common Informers, require that every Information for Breach of Penal Laws shall be exhibited by the Informer, in his proper Person, or by Attorney, not by Deputy.

That after Information made, or Suit brought, he he shall not agree with the Offender, without Leave of the Court: If he doth, and is convicted of it, he must stand in the Pillory two Hours, and forfeits 10 l. to the King and Party grieved.

And if he delay or discontinue his Suit, or is nonsuit, or if the Verdict be for the Defendant, Informer shall pay Costs.

By the Statute 31 Eliz. cap. 5. no Person may be an Informer, who is disabled by any Misdemeanor.

All Informations or Actions, brought by an Informer upon Penal Laws, must be brought in the County where the Offence was committed, and within a Year after the Fact, unless otherwise directed by the Law which creates the Offence: But the King shall have Two Years Time. Style 383.

If two Informations are exhibited against the same Person, for the same Offence, and in one Court, at the same Time, they are both void, because there is no Priority of Time to attach the Right more in one Informer than in the other. 2 Lev. 141.

Where any Part of the Forfeiture upon a Penal Law is given to the Informer, he must set it forth, and demand it in the Information, or ’tis void. Hob. 245.

If he that prefers an Information against another for Breach of any Penal Law, is to have Half the Penalty, and the King the other Half, there if an Informer do prefer his Information, before any Information is preferred by the King, the Informer shall have his Proportion of the Penalty; but if the King do first prefer the Information, he may inform for the whole Penalty:





For the King is not bound to stay till an Informer prefer the Suit, but may sue at any Time; and if no Body inform, none hath Right to the Penalty but the King, and therefore he may pardon it, if he please, without any Wrong to any. Style 382.

INSOLVENT DEBTORS

BY the Act of Assembly for the Relief of Insolvent Debtors, where any Person, charged on mesne Process or Execution, for any Debt, shall have been confined in Gaol 20 Days, any Two Justices of the Inferior Court, or any One of the Judges of the Superior Court, either in or out of Court, upon Petition of such Prisoner, under his Hand and Seal (Notice whereof having been first given to the Creditor, at whose Suit he is confined, his Executors or Administrators, Attorney or Agent) may require the Sheriff or Gaoler to bring the Body of such Prisoner, together with a List of the several Writs or other Process against him, before them; which Warrant every such Sheriff or Gaoler is hereby commanded to obey; and if such Prisoner has no visible Estate, real or personal, and will make Oath (his Creditor, if in the Province, being first personally summoned) that he hath not the Worth of Forty Shillings Sterling, over and above his working Tools, Arms for Muster, and wearing Apparel, and that he hath not at any Time since his Imprisonment, or before, directly or indirectly, sold, assigned, or otherwise disposed of, or made over in Trust for himself, or otherwise, any Part of his Estate, to defraud his Creditors, and no Person present can prove the contrary, such Person may be set at Liberty, and shall stand for ever discharged of such Debts sued for, and all Costs. But if such Prisoner shall afterwards be discovered to have sworn falsely, he shall be indicted for Perjury, and if convicted, shall lose both his Ears in the Pillory, and be liable for the Debt and Damages, and rendered incapable of the Benefit of this Act.

[note]

The Justices or Judge before whom such Prisoners shall discharge themselves, when the Proceedings shall be out of Court, shall put the same in Writing, under their Hands, and return the same to the Court from





whence the Process issued, there to be kept on Record, on Penalty of Five Pounds, to the Person injured.

If any Person charged on mesne Process or Execution for any Debt, shall have remained in Gaol Twenty Days, and shall have any Estate, and a Mind to deliver it up to his Creditors, he shall prefer a Petition to the Court, with the Cause of his Imprisonment, and an exact Account of his Estate, which, with the Schedule, shall be lodged with the Clerk Twenty Days before the next succeeding Court. The Clerk shall then, under his Hand and Seal, issue a Copy of such Schedule, and a Notice, to the Creditor, setting forth the Substance of such Petition, and summoning him to attend the next succeeding Court, to shew Cause why the Prayer of the Petition should not be granted; which Notice being duly served upon such Creditor, his Executors, Administrators, Attorney, or Agent, Ten Days before the Court, the Court shall order such Prisoner to be brought before them, and if the Creditor appear, or being duly summoned, shall fail to appear, the Court shall examine the Nature of the Petition, and tender to such Person the following Oath:

[note]

I A. B. in the Presence of Almighty God, solemnly swear, profess, and declare, that the Schedule now delivered, and by me subscribed, doth contain, to the best of my Knowledge and Remembrance, a full, just, true, and perfect Account and Discovery, of all the Estate, Goods, and Effects, unto me any Ways belonging, and such Debts as are to me owing, or to any Person in Trust for me; and of all Securities and Contracts, whereby any Money may hereafter become payable, or any Benefit or Advantage accrue to me, or to my Use, or to any other Person or Persons in Trust for me; and that I, or any other Person or Persons in Trust for me, have not Land, Money, or Stock, or any other Estate, real or personal, in Possession, Reversion, or Remainder, of the Value of the Debt or Debts with which I am charged in Execution; and that I have not, directly or indirectly, sold, lessened, or otherwise disposed of in Trust, or concealed, all or any Part of my Lands, Money, Goods, Stocks, Debts, Securities, Contracts, or Estate, whereby to secure the same, to receive or expect any Profit or Advantage thereof, or to defraud or deceive any Creditor or Creditors to whom I am indebted, in any-wise howsoever.

[note]

So help me God.





Upon such Oath taken, and the Schedule subscribed being filed with the Clerk, the Court shall order the Prisoner to be set at Liberty; which Order shall indemnify the Sheriff.

All Lands and Tenements, Goods and Chattels, contained in such Schedule, shall be vested in the Sheriff, who is to sell the same at Public Vendue, and return the Money to the Clerk of the Court.

The Court shall appoint Commissioners to examine the Claims of Creditors, as well those at whose Suit the Prisoner was committed, as of all others, who shall advertise the Time at which they propose to examine such Claims, which shall be within 60 Days after their Appointment. Upon such Claim appearing just, they shall make Distribution among them, in Proportion to their respective Demands, and the Clerk shall pay the Monies to such Commissioners.

The Person of such Debtor shall never be arrested for the same Debt, but the Judgment shall be fully satisfied; and no Execution shall issue against any Estate he may afterwards acquire.

When the Person at whose Suit any Prisoner shall be confined in Gaol, resides out of the Colony, and hath no Agent or Attorney here, Notice may be given to the Attorney at Law who brought such Suit; and where the Prisoner hath remained in Gaol 20 Days, the Gaoler may give Notice to such Attorney, and demand Security of him for the Prison Fees; and if he refuse such Security, then to discharge such Prisoner.

If any Debtor discharged by the Creditor after lying 20 Days, shall be unable to pay his Prison Fees, the Sheriff or Gaoler may demand them of such Creditor.

Persons convicted of taking false Oaths, shall be guilty of Perjury, liable to be taken on new Process, and disabled from the Benefit of this Act.

Where Oath is required, the solemn Affirmation of a Quaker may be taken, and for salfe affirming shall suffer as for corrupt Perjury.

JUDGMENT.

IS the Sentence of the Court, pronounced by the Judge, upon any Trial in Cases criminal or civil.

[note]



In all capital Cases, the Court cannot alter or mitigate the Judgment, which must be given expressly as by the Law directed for the Offence, respectively, and the Execution must be pursuant to such Judgment.

In High Treason.

In all Cases, except counterseiting Coin, the Offender shall be drawn to the Gallows, there hanged by the Neck, and then cut down alive, his Entrails taken out and burnt, his Head cut off, his Body quartered, and his Head and Quarters hanged up.

In counterseiting Coin; to be drawn and hanged, but not quartered.

A Woman, in both these Cases, shall be drawn and burnt.

Petty Treason.

For a Man, to be drawn and hanged.

A Woman, drawn and burnt.

Felony.

Hanged, till dead.

Petit Larceny.

Whipped, and Forfeiture of Goods.

Death by Chance Medley, or Self-Defence.

No express Judgment, but the Goods are forfeited.

Misprision of Treason.

Forfeiture of Goods, and the Profits of Lands during Life, and perpetual Imprisonment. H. P. C. 208.

If a Prisoner, indicted for Treason or Felony, will not plead to the Indictment, or stands mute, or answers impertinently, or challenges above Twenty of the Jury, Judgment shall be given against him, as if he were found guilty. Style 363.

JURIES

JURY, in the Common Law, signifieth a Company of 24 or 12 Men, sworn to deliver the Truth, upon such Evidence as shall he to them produced, touching the Matter of Fact in Issue, to them referred, be the Action civil or criminal, public or private, real or personal; and as they find it, so, regularly, passeth the Judgment. F. H. N. B. 165.

[note]

There are divers other Sorts of Juries, two of which are more especially eminent:





1. The Grand Jury, consisting ordinarily of Twenty Four grave and substanstial Men, chosen indifferently by the Sheriff, to consider of all Bills of Indictment preferred to the Court, and to make Presentment of all Offenders against Penal Laws. Indictments are by them approved, when they write upon them these Words, Billa vera; or rejected, by writing Ignoramus.

[note]

Where Billa vera, or, the Bill is true, is returned by the Grand Jury, upon any Indictment of Life and Death, a Man is said to be indicted, and the Trial of the Fact is then referred to a Petit Jury, because the Case is of such Importance; but for Matters less Criminal, and Presentments for Breach of Penal Laws, found by them, the Party is, without more ado, fined by the Court, except he traverse the Indictment, or challenge it for Insufficiency, or remove the Cause to a Superior Court: In the Two former Cases, it is referred to another Jury, and in the latter, to a higher Court. Lamb. Eiren. l. 4. cap. 7.

[note]

Ignoramus, is a Word properly used by a Grand Jury, and written upon any Bill of Indictment for any Crime offered to their Consideration, when they find the Evidence defective, or too weak to prove the Indictment. The Effect of this Word is, that all farther Inquiry against the Party for that Fault, is thereby stopped, and he discharged without farther Answer: An Indictment so returned to the Court, is usually cancelled or torn forthwith.

[note]

2. The Petit Juries; consisting of 12 Men, which determineth the Matter of Fact in Issue before the Judges: This Jury appertains to all Courts of Common Law, and takes Cognizance of all civil Actions, or Suits, between the King and the Subject, or between Subject and Subject; and also all criminal Prosecutions, which are always betwixt the King and Subject, and therefore this is commonly called the Jury of Life and Death, and appertains to all Courts of Oyer and Terminer.

[note]

Other Juries are occasionally summoned; as, by the Coroner, upon an Inquisition on a dead Body; by the Sheriff, upon Surveys in Real Actions, Writs of Dower, Partition, Forcible Entries, Valuation of Lands, or Improvements, &c.

Every sufficient Person impanneled and sworn, is properly termed a Juror, and 12 of them make a Jury.





The Determination of the Jury upon the Evidence given before them, concerning the Matter of Fact in Issue, is called sometimes, the Judgment of 12 Men, but most commonly the Verdict, that is, the Truth of the Fact. The Office of the Jury is to find this, and the Judge thereupon declares the Truth of the Law. Co. 4 Rep.

By the Laws of England, there are Three Sorts of Trial.

1. By Parliament; This is the Supreme Court of Great-Britain, and all the Dominions thereto belonging: It is an Assembly of the King and Three Estates of the Realm, viz. the Lords Spiritual, Lords Temporal, and Commons. All other Courts are subject to this, which receives and finally determines Appeals, in Matters Ecclesiastical or Civil, brought before them from any other Courts of Judicature, at Common Law, or in Chancery: But criminal Prosecutions upon Indictments are properly determinable before Justices of Oyer and Terminer, who pass Judgment, and award Execution, from which no Appeal is grantable. Smith Rep. Ang. l. 2. cap. 1.

[note]

2. By Battle, or Combat; antiently used, in Cases doubtful, where manifest Proof could not be had, and not yet repealed, tho’ for many Ages past rarely granted but may be, by the Law in Use at this Day, if the Defendant will, and nothing can be counterpleaded thereto.

[note]

It is a Camp Fight, or Duel, between the Plaintiff and Defendant, or their Champions, who are to fight in single Combat, with Arms offensive and defensive, at a Day and Place appointed by the Judges, and in their Presence: It is permitted by the Law, in Cases of Safety, Fame, or Possessions; if the Demandant failed to appear, at the Day and Place, or was overcome in Presence of the Judges, final Judgment immediately passed against him. Ventag. p. 64.

3. By Jury; this excellent Method of Trial was first introduced in England by William the Conqueror, about Anno Dom. 1066, when all Actions Criminal, Real, or Personal, began to be wholy determined by the Verdict of 12 Men. Some indeed alledge, That this Manner of Trial was in Use long before, among the Saxons, founding their Opinion upon a Law of King Ethelred, which requires, that at the Monthly





Court held in every Hundred, 12 grave Men should be sworn by the Chief Officer, to Judge every Man's Cause aright: But these Men were rather Assessors, or Justices, with the Judge, and not Jurors; had there been any such Form, we should have found it in their Laws and Practice. Before this, the Trials among the English, in Cases criminal, upon apparent strong Suspicion, but where no direct Proof could be had, were decided by their Judgment of Ordeal, which was a Trial of two Kinds:

[note]

1. By Fire; for the better Sort of People, who were to go, blind-fold, over nine Plough-Shares, made red hot, and laid at uneven Distances from one another: If they passed through them all unhurt, they were judged innocent, if not, guilty.

[note]

2. By Water; for the meaner Sort: The Water was either hot or cold; in the first they put their naked Arms, to the Elbow, which if they endured, without scalding, they were pronounced innocent, otherwise, guilty: If the Trial was by cold Water, the Party accused was thrown into a River, head-long; if he sunk, he was judged innocent, if not, guilty, as thrown out by the Element.

[note]

But these absurd and impious Trials had their Period, and were abolished soon after the Conquest of England by the Normans: The Conqueror established his Crown and Government, by reforming such of the English Laws as he found defective, introducing in their Stead those of the Normans: So that the Body of the Common Law, with the whole Practice of it, came out of Normandy, notwithstanding all Objections that can be made to the contrary.

But he continued such of the Saxon Laws as had been made for the Preservation of the Peace and Security of the Kingdom, particularly the Saxon Borough Law, because he found such excellent Constitutions made by the wary Care of former Kings, that he had none so good, and better could hardly be invented by Man. By these Means the Normans gained so speedy and firm Settlement in England, more than the Romans or Saxons. Hist. Engl. vol. 1. p. 108.

To this wise and politic King all Subjects of the British Crown are indebted for this invaluable Privilege





of being tried by their Peers, which they enjoy at this Day; so that none of them can suffer in his Life, Liberty, or Property, until he is found guilty, by the Verdict of twelve of his Neighbours, or Equals, upon their Oath. A happy Security! peculiar to the British Subject, envied perhaps, but not enjoyed by any other Nation in the World.

A Challenge made to the Jurors is, where Exception is taken by either Party, in Cases civil or criminal, either to the Array or to the Polls.

[note]

Challenge to the Array is to the whole Pannel, as returned partially; and this may be,

1. For Partiality, or Kindred, in the Officer who returned the Pannel.

2. If any Juror is returned at the Nomination or Desire of either Party.

3. If either Party have an Action of Debt against the Sheriff.

Challenge to the Poll is, where one or more of the Jury are excepted against, for some lawful Cause, as

1. In Respect of Honour; as if a Peer be returned of a Jury in the Case of a common Person, and if neither Party will challenge him, he may challenge himself: For by Magna Charta a Peer of the Realm shall not be impannelled, where any of the Commons is to have a Trial. Co. Lit. l. 2. s. 234.

2. For Defect; as Aliens, and Persons not qualified for Want of Estate.

3. For Partiality; where there is express Malice, or Favour, or Kindred or Affinity, tho’ ever so remote; nay, if the Juror be only Godfather to either Party, or if he has declared his Opinion before the Trial, &c. These Challenges to the Favour are many, which must be left to the Discretion of Two Triers, who are appointed and sworn by the Court, out of the Jury returned, to try whether there is Cause of Favour or not.

4. For criminal Offence; as Persons attainted, or outlawed.

All these are principal Challenges; but a Prisoner arraigned for Felony, may peremptorily challenge Twenty of the Jury, without assigning any Cause, because this is allowed in Favour of Life.





After a Challenge to the Array is allowed, the whole Pannel must be struck out; but if one Man be sworn, the Array cannot be challenged. Style 233.

But there can be no Challenge, either to the Array or to the Polls, ’till the Jury is full; and ’tis too late after they are sworn. Hob. 235.

At Common Law, a Man might peremptorily challenge any Number under Three full Juries, and therefore he might challenge 35, without shewing Cause: But by the Statute 22 H. 8, ’tis reduced to 20; only in Case of Treason and Petit Treason, he may challenge 35, by Statute 1 & 2 Phil. & Mar. cap. 10. If a Man challenged more, it was formerly held, that he should be pressed, because he refused the Law; this being not a satisfactory Reason, ’tis now held, that he shall be hanged.

A Jury, after their Evidence given upon the Issue, ought to be kept in some convenient Place; without Meat, Drink, Fire, or Candle, ’till they are agreed of their Verdict, and without Speech with any, unless it be the Sheriff, or his Deputy, and with him only if they be agreed. Co. Lit. l. 2. s. 366.

In all Cases where an Alien is Plaintiff or Defendant, the Trial, whether Civil or Criminal, ought to be by a Jury, Half English, Half Foreigners, and a Suggestion made upon the Record to that Purpose: And when the Jurors appear, they swear One English and One Foreigner, ’till they have a full Jury. Style 341.

If a Jury give their Verdict contrary to their Evidence, an Attaint doth lie against them, by the Statute 23 H. 7. cap. 4.

[note]

An Attaint is a Writ that lies against a Jury that doth give a false Verdict in any Court of Record, for 40s. Debt, or Damages, or more, and it is so called, because the Party grieved endeavours to stain the Jury with Perjury: If the Verdict be found false, the Judgment is, That the Jurors Meadows shall be ploughed up, their Houses thrown down, their Woods grubbed, and all their Lands and Tenements forfeited to the King. But this Writ is seldom used, unless the Corruption be very apparent, and if Judgment be given against him that brought the Attaint, he shall be imprisoned, and grievously fined, at the King's Will. Co. Lit. 294.





A Jury may find a Thing which is not given to them in Evidence, if they do know it of their own Knowledge: For they may inform themselves of the Truth of the Fact they are to try, by all possible lawful Meaning they can, and are not tied to the Evidence given at the Bar only. Style 335.

After a Juror is sworn, he may not go from the Bar until the Evidence is given, and the Direction of the Court, for any Cause whatsoever, without Leave of the Court, nor then without a Keeper; so cautious is the Law to prevent all sinister Practice in the Trial of Causes. lb. 388.

If a Juryman will keep his Fellows without giving any Reason, or will withdraw from them, he may be committed and fined, because he is sworn well and truly to try the Issue; and therefore to be obstinate without Cause, or depart, is a Misdemeanor, and finable. Nels. 378.

But if he differs in Judgment from the Rest, though his Dissent be not as reasonable as the Opinion of those who agree, yet he cannot be fined, though he keep the Rest for a Time from giving their Verdict.

A Jury may be fined for Misdemeanors, but not barely for going against the Direction of the Court. Ibid.

If they cast Lots, whether to find for the Plaintiff or Defendant, ’tis a Misdemeanor. 2 Lev. 140, 203.

If after they are gone from the Bar, one of the Jury calls a Witness who was sworn, and had given his Evidence in Court, and desires him to repeat it again, which he does, this is a Misdemeanor, and the Verdict shall be set aside. Cro. Eliz. 189.

If they eat and drink before they bring in their Verdict, they are to be fined; only with this Difference, if they eat at their own Charge, the Verdict shall stand, but if at the Charge of the Party for whom the Verdict is sound, it shall be set aside. Dyer 137.

Where it appears to the Court, that the Jury have been unlawfully dealt with, to give their Verdict, they are finable. Vaugh. 153.

The Jury may give a Verdict without Testimony, when they themselves have Conusance of the Fact. Tr. p. pais 279. 1 Ventr. 97.

But if they give a Verdict on their own Knowledge, they ought to tell the Court so: But they may be sworn





as Witnesses; and the fair Way is to tell the Court, before they are sworn, that they have Evidence to give. 1 Salk. 405.

For certainly it is of dangerous Consequence to receive a Verdict against Evidence given, on Supposal that some of the Jury knew otherwise, or on private Information given by any Juryman to the rest, where he cannot be cross examined. Tr. p. pais 209.

After they be agreed, they may in Causes between Party and Party, if the Court be risen, give a private Verdict, before any of the Judges of the Court; and then they may eat and drink: And the next Morning, in open Court, they may either affirm or alter their private Verdict; and that which is given in Court shall stand. 1 Inst. 227.

But in criminal Cases of Life or Member, the Jury can give no private Verdict, but they must give it openly in Court. 1 Inst. 227.

In all Causes, and in all Actions, the Jury may give either a general or a special Verdict, as well in Causes criminal as civil; and the Court ought to receive a special Verdict, if pertinent to the Point in Issue. 3 Salk. 373.

Thus if one be indicted for Grand Larceny, that is, for stealing Goods above the Value of 12d. yet the Jury may find specially that he is guilty, but that the Goods are not above the Value of 12d. In which Case, he shall only have Judgment of Petit Larceny. 1 Haw. 95.

Jurors are to try the Fact, and the Judges ought to judge according to the Law that ariseth upon the Fact. 1 Inst. 226.

But if they will take upon them the Knowledge of the Law upon the Matter, they may; yet it is dangerous, for if they mistake the Law, they run into the Danger of an Attaint: Therefore to find the special Matter is the safest Way, where the Case is doubtful. 1 Inst. 228.

But if the Jury find according to the Direction of the Judge in Matter of Law, altho’ the Judge be mistaken, yet the Jury shall not be liable to Attaint. L. Raym. 470.

It hath been adjudged, that if the Jury acquit a Prisoner of an Indictment of Felony against manifest Evidence, the Court may, before the Verdict is recorded,





but not after, order them to go out again, and re-consider the Matter; but this by many is thought hard, and seems not of late Years to have been so frequently practised as formerly. However it is settled, that the Court cannot set aside a Verdict which acquits a Defendant of a Prosecution properly criminal, as it seems that they may a Verdict that convicts him, for having given contrary to Evidence and the Directions of the Judge, or any Verdict whatsoever for a Mis-trial. 2 Haw. 442.

After the Verdict recorded, the Jury cannot vary from it; but before it be recorded, they may vary from the first Offer of their Verdict, and that Verdict which is recorded shall stand. 1 Inst. 227.

A Verdict finding an impossible Matter shall not be void, if at the same Time it find the Substance of the Indictment; but the Surplus shall be rejected. 1 Haw. 77.

Verdict shall not be taken so strictly as Pleadings; but the Substance of the Thing in Issue ought to be always found. 3 Salk. 373.

It is said, that if the Jurors agree not, before the Departure of the Justices of Gaol Delivery into another County, the Sheriff must send them along in Carts, and the Judge may take and record their Verdict in a foreign County. 2 H. H. 297. Tr. p. pais 274, 285. 1 Vent. 97.

But if the Case so happen, that the Jury can in no wise agree, as if one of the Jurors knoweth in his own Conscience the Thing to be false, which the other Jurors affirm to be true, and so he will not agree with them in giving a false Verdict, and this appeareth to the Justices by Examination; the Justices, in such Case, may take such Order in the Matter, as shall seem by their Discretion to stand with Reason and Conscience, by awarding a new Inquest, or otherwise, as they shall think best by their Diseretion, like as they may do, if one of the Jury die before the Verdict. Doct. & Stud. 158.

If a Man assault or threaten a Juror, for giving a Verdict against him, he is highly punishable by Fine and Imprisonment; and if he strike him in the Court, in the Presence of the Judge of Assize, he shall lose his Hand, and his Goods, and Profits of his Lands during Life, and suffer perpetual Imprisonment. 1 Haw. 57. 58.





By the late Law of this Province for appointing Jurymen, the Counties in the several Districts of the Province were to send a certain Number of Freeholders to the Superiour Courts of each District, to serve as Grand and Petit Jurors for the Trial of Causes in such Courts. These Men were nominated by the Justices of each County, in open Court, and summoned by the Sheriff to attend.

[note]

On the Trial of every Suit, the Clerk of the Court was to write down the Names of every Juryman attending, on Scrolls of Paper, and put them into a Box, then a Child under 10 Years of Age was to draw out of the Box Twelve Scrolls, singly, the Persons whose Names were thereon written were to make the Jury. This Law expired with the late Superior Court Law, but in all Probability will be again revived when we are happy enough to have our old constitutional Laws restored.

Jurors for the County Courts are to be summoned by the Sheriff Five Days before the Sitting of each Court, who is to summon 24 Freeholders for the Grand, and 12 for the Petit Jury, who are to attend till discharged by the Court. The Sheriff must also, by Order of Court, summon, from Day to Day, during the Sitting of the Court, a sufficient Number of By-standers, to make up any Deficiency that may happen, which By-standers are to be discharged every Day. Forty Shillings Penalty on Jurors neglecting to attend, to be applied to the Contingences of the County.

Jurors for the Courts of Oyer and Terminer are to be nominated by the Justices of the several Counties of the Districts where the Courts are held, in the same Manner as for the late Superior Courts, and the Jury for the Trial of every Cause drawn in the same Manner.

JUSTICES OF THE PEACE

ARE Persons appointed by the King's Commission, to preserve the Peace of the County where they dwell; of whom some are called of the Quorum, because certain Matters of Importance cannot be done without the Presence of them, or One of them, and they are named of the Quorum, because in their Commission





the King so chooses or charges them. Lamb. Eiren. pag. 378.

[note]

There are various Opinions among the learned Men concerning the Original of their Institution; but in the Statute 36 Edw. 3. cap. 12. made A. D. 1362, they are first called Justices of Peace: There were Conservators of the Peace, long before that Time, of whom the Common Law takes Notice, and to whom the Care and Preservation of the Peace was committed, but these had no Judicial Authority; particular Statutes, made afterwards from Time to Time, established and enlarged the Jurisdiction of Justices of Peace.

[note]

Their Number was at first uncertain, afterwards limited to Six Persons in each County: Two of them to be Men of the best Quality, Two Knights, and Two Lawyers. These had the Power to hear and determine Matters relating to the Peace, but no Judicial Authority in other Cases, ’till by succeeding Statutes their Power was enlarged: They are now Judges of Record, and have Cognizance of Matters Civil, as well as Criminal. Afterwards their Number so much increased, that a Law was made, 12 R. 2. cap. 10. A. D. 1388, prohibiting more than Six in every County: Two Years after, these were increased to Eight, and this stands unrepealed at this Day. Cott. Abr.

[note]

My Lord Coke observes, That this Court of Justices was such a Form of subordinate Government for the Quiet of the Realm, that, if duly executed, no Part of the Christian World had the like: Therefore he proposes, That in each County should be Eight Honorary Justices constituted, of Men of the best Quality and Estate therein, who should not be obliged constantly to attend the Service, any farther than their Zeal for Justice and Love for their Country shall incline them; and Eight acting Justices, fit for Business, who should constantly apply themselves to this Attendance, be entitled to a Reward for their Pains, and liable to Penalties upon Neglect, without reasonable Excuse.

And Mr. Dalton has well described their Qualifications, viz. They must be Men of Substance and Ability of Body and Estate; of the best Reputation, good Governance, and Courage for the Truth; Men fearing God, not seeking the Place for Honour or Conveniency, but endeavouring to preserve the Peace and good Government of their County, wherein they ought to





be resident; Lovers of Justice, judging the People equally and impartially at all Seasons, using Diligence in hearing and determining Causes, and not neglecting the Public Service for private Employment, or Ease; of known Loyalty to the King, not respecting Persons, but the Cause; and they ought to be Men of competent Knowledge in the Laws of their Country, to enable them to execute their Office and Authority to the Advancement of Justice, the Benefit of the People, and without Reproach to themselves.

[note]

To this Description he adds some Directions, which he recommends to the Consideration of all Justices of Peace, as necessary Cautions, to remind them how Justice may be perverted, as,

1. By Fear; when fearing the Power or Countenance of another, they dare not give impartial Judgment.

[note]

2. Favour; when they seek to please their Friends, Neighbours, or Acquaintance.

3. Hatred, or personal Malice against the Party, or some of his.

4. Coveteousness; when they receive or expect Fee, Gift, or Reward.

5. Anger, or other Passion; whereby the Mind is disturbed, and rendered unfit for the Admistration of Justice.

6. Ignorance; or Want of Science what is to be done.

7. Presumption; when they proceed without Law, or legal Warrant.

8. Delay; which is in Effect a Denial of Justice.

9. Precipitation, or Rashness; when they proceed too hastily, without due Examination, or Consideration of the Fact and Circumstances, or without hearing both Parties.

And as they are Judges of Record, and their single Testimony, in some Cases, of greater Force than an Indictment upon the Oath of Twelve Men, they ought therefore to be exceeding cautious not to abuse their Credit and Authority, either by oppressing the Subject, or deceiving the King by dishonouring his Commission and the Trust in them reposed, thro’ corrupt and negligent Administration of their Authority, and the Public Justice, or by giving Occasions of Reproach to themselves thro’ evil Example in their own Persons.





The Justices of this Province are appointed by Commission of the Governor, in Council, under Seal of the Colony; every Person so appointed, before he enters upon the Execution of his Office, shall take the Oaths appointed by Act of Parliament to be taken by all Public Officers, from Time to Time, and also the Oath here under mentioned, viz.

[note]

Oath of a Justice of Peace.

I A. B. do swear, That as a Justice of Peace in the County of — in all Articles in the Commission to me directed, I will do equal Right and Justice to the Poor and to the Rich, after my Cunning, Wit, and Power, and according to Law; and I will not be of Council in any Quarrel hanging before me; I will not let for Gift or other Cause, but well and truly I will do my Office of a Justice of the Peace, as well within the Inferior Court of Pleas and Quarter Sessions of the said County, as without; and I will not take any Fee, Gift, or Gratuity, for any Thing to be done by Virtue of my Office; and I will not direct, or cause to be directed, any Warrant by me to be made to the Parties, but I will direct them to the Sheriff or Constable of the County, or other the King's Officers or Ministers, or other indifferent Person, to do Execution thereof.

[note]

So help me God.

If any Person presumes to execute the Office of a Justice before qualifying as above, he shall forfeit One Hundred Pounds; Half to the King, and Half to the Informer.

[note]

The Office and Authority of a Justice of Peace is two-fold:

1. Ministerial, and

2. Judicial.

1. Ministerial; as an extraordinary Minister of Justice, in special Cases: They must execute and return Writs of Certiorari, or upon a Supplicavit for taking Surety of the Peace, or upon the Statute of Northampton for forcible Entry, or other Writs issuing from a Superior Jurisdiction, and directed to one or more Justices.

[note]

2. Judicial: Every Justice of Peace is a Judge of Record, and may take Recognizances for the Peace, in any Case where in his Discretion he judges it necessary: May issue his Warrant for apprehending Felons, or Persons suspected of Felony, and take their Examination,





as also the Prosecutors and Witnesses, and bind them, by Recognizance, to appear and give Evidence for the King.

[note]

The Justices of the Inferior Courts, or any Three of them, may hear and determine all Matters at Common Law, where the Debt or Cause of Action is above Five Pounds, and under Twenty Pounds; also all Petit Larcenies, Assaults, Batteries, and Trespasses, other than such where the Title of the Freeholder may come in Question; Breaches of the Peace, and Misdemeanors all filial Portions, Legacies, and Distributions of Intestates Estates, for any Sum not exceeding Twenty Pounds. And shall have all the Powers of Justices of the Peace in England.

[note]

Any one Justice may, by Warrant, try all Matters, Debts, and Demands, of Five Pounds, or under; and give Judgment and award Execution thereon.

[note]

The Judges of the Superior Court, and Persons appointed Justices of Oyer and Terminer, by special Commission, are the proper Justices of Gaol Delivery; who have Power to proceed upon Indictments for capital Offences, and the Deliverance of Thieves and Felons.

[note]

Where any Matter is cognizable before One or more Justices, may be seen under the respective Titles, and need not be repeated here: But where it is finally determinable before one Justice, Two or more of them, or the Court, have no Jurisdiction.

In every Case where a Justice of Peace has Jurisdiction, his Warrant is not to be disputed by any Constable, or other Officer to whom directed, who may be indicted and fined for not executing it. 2 Roll. Rep. 78.

[note]

In Cases of forcible Entry, Riots, and Presentiments of Highways, his single Testimony and Record is of greater Force than an Indictment of a Jury. Nels. 382.

But in his own Case he is not Judge, and ought not to execute his Office, unless he is assaulted, and then he may commit the Offender; so likewise he may record a forcible Entry upon his own Possession: If any Man abuses his Person, or Warrant, in any Thing relating to his Office, an Indictment will lie against the Offender. Sid. 144.

He shall not be punished for any Thing by him done in Sessions, as a Judge, in any Matter whereof he has Jurisdiction. Dalt. 11.





He may send his Warrant to apprehend any Person accused of Felony, tho’ the Accusation should be false, but not unless accused; and he ought to cause the Accuser to enter into Recognizance, with Sureties, that he will prosecute the Party accused with Effect.

All Offences at Common Law against the Peace, or tending to the Breach of the Peace, are cognizable before a Justice, by Virtue of his Commission, as Conservator of the King's Peace in his County; and therefore, whether such Offences are occasioned by Force or Violence, or by Fraud, Deceit, or other Misbehaviour, tending to the Breach of the Peace, he is to exercise his Authority for preserving the Peace and good Government of the People within his County. This Mr. Dalton divides into three Parts:

1. Preventing Breach of the Peace, by requiring and taking Sureties for the keeping it, or for the good Behaviour, as the Case shall require.

2. Pacisying Riots, Affrays, or other Quarrels, when the Peace is actually broken.

3. Punishing Offenders, in the Method by Law prescribed.

But he recommends the first Branch as most worthy the Care of a good Magistrate. Dalt. 10.

A Justice of Peace ought not to bind any Person to the Good-behaviour, upon a general Information; and if the Party so accused, refuses to be bound, or to find Sureties, he ought not to be committed for his Refusal: For he that desires to have another to be bound to the Good-behaviour, must shew some particular Miscarriage wherein the Misbehaviour of the Party consists; a general Accusation is no Accusation, for no Defence can be made to it for the Incertainty thereof.

He may arrest and commit the Party that doth a Felony in his own View, without any Warrant of Arrest; for there needs no other Proof of the Matter: But upon Information of Felony done, there the Justice must issue a Warrant under his Hand and Seal, to apprehend the Felon; because it must appear by what Authority, and for what Cause, the Party was committed. Style 387.

He may require any Person to enter into Recognizance, and to find Sureties, for keeping the Peace, under a great Penalty, if he see Cause, in Regard the Party to be bound is a dangerous Person, and likely to





break the Peace and do much Mischief: For there cannot be too much Caution used in preventing the Breach of the Peace in such Cases. Ibid. 388.

The Justices in Court may bind one to the Peace, if they see Cause, altho’ there be no Oath made by any Person against him that is to be bound: For such Oath is only to manifest that there is just Cause why the Party should be bound to the Peace; but if the Court be sufficiently satisfied, they may do it without, for where Things are in themselves manifest, there needs no Evidence to prove them. Ibid.

One Justice of Peace, upon his own View, may commit those who offend against Penal Laws. Nels. 57.

He may command Weapons to be taken from a Prisoner brought before him.

The constituting and appointing Justices of Peace is a Royal Prerogative annexed to the Crown of England by the Common Law, and confirmed to the King by the Statute 27 H. 8. They are of Three Sorts, and appointed by Three Ways:

1. By Act of Parliament; the Archbishop of York, and the Bishops of Durham and Ely, and their Temporal Chancellors and Stewards, who are Justices of Peace within their respective Diocesses.

[note]

2. By Grant or Charter, or the King's Letters Patents under the Great Seal; as Mayors, and the Chief Officers in Cities and Corporate Towns, enabling them, and their Successors to be Justices of Peace within their respective Cities, or Liberties: Such Grants, or Charters, are not revokable at the King's Pleasure, as a Commission of the Peace is, but the Authority remains to them, and their Successors, in Perpetuity, unless the Charter is forfeited, and their Liberties seized into the Kings Hands for some Public Miscarriage, or by the total Decay of the Corporation: The King may also grant Commissions of the Peace to such other Persons as he thinks fit, within those Corporations. These Justices by Grant, or Patent, have the like Authority, within their respective Corporations, as the ancient Conservators of the Peace had, at Common Law; and such Power also, as is





given to any one Justice of Peace, by particular Law or Statute, but not the whole Power given to Justices of Peace, by Commission. Dalt. 10.

[note]

3. By Commission; as all Justices of Peace, in their several Counties, are usually appointed at this Day.

[note]

But as these Magistrates are favoured by the Law in the Execution of their Office, so they are punishable for any Irregularities, or Abuse of their Authority; and their Jurisdiction is likewise limited in several Particulars, as,

1. They must act only in that County where they are in Commission; and if there be any City or Corporation within such County, having proper Jurisdiction within themselves, they cannot intermeddle there, unless they be also Commissioners for such City or Corporation; and if a Parish extends into two Counties, or Part thereof lies within the Liberties of a Town Corporate, the Justice's Authority is limited by his County.

[note]

2. They cannot take Examinations of Felons, or Recognizance for the Peace, or punish any Trespass or Offence against Penal Laws, but only within the County whereof they are Justices.

3. Where by Law Jurisdiction is given to Two or more Justices, or where the Presence or Assent of One of the Quorum is required, such Law must be strictly pursued; Judgment otherwise given, void. Co. Lit. 181.

4. Where Offences for Breach of Penal Laws are expressly determinable before One Justice of the Peace, the Judgment must be given and executed, as by such Law directed, and not otherwise.

5. If they take judicial Cognizance of any Matter, civil or criminal, not legally within their Jurisdiction, they are liable to be prosecuted at the Suit of the Party grieved, and finable to the King.

6. They are not to execute their Office in their own Cause, but must bring the Offender before some other Justice.

7. Upon Forcible Entry, they are not to award Restitution, until Inquiry made and Force found by a Jury.





8. They must not refuse Bail where it is by Law grantable; nor admit the Party to Bail where by Law denied. Dalt. 456.

All these Matters are Penal to Justices of Peace, if they offend in any of them.

Where Jurisdiction is given them by any temporary Law, they must be cautious that the same is in Force, or continued, or made perpetual, and not expired.

And their Office and Oath requires them to do impartial Justice, and give Remedy to the Party grieved, in any Matter within their Jurisdiction, without Respect of Persons, and according to Law; and they must suffer the Law to have its Course, and not privately stay Proceedings. Latch 48.

They may persuade contending Parties to an Agreement for small Trespasses, but not for Breach of Penal Laws, nor in any Matter where a Fine is due to the King. Noy 103.

They cannot take Cognizance of Pleas upon Penal Laws, without express Power given to them by those Acts which create the Offence; without such Authority the Indictment is void, if exhibited before them. 1 Leon. 187.

One Justice cannot commit another, for Breach of the Peace or Behaviour, but the Sessions may. Dalt.

The Authority of a Justice of Peace is determined by the Death of the King; by a Discharge under the Great Seal; by Supersedeas; and by a new Commission: As likewise by the Accession of another Office, as being made Sheriff, and, as some hold, Coroner. Dalt. 12, 234.

LARCENY.

LARCENY is either simple or mixt:

[note]

Simple Larceny is the felonious taking and carrying away the personal Goods of another, not from his Person, nor out of his House: If the Things stolen, tho’ at several Times, exceed the Value of 12 d. ’tis Grand Larceny; but if under that Value, ’tis Petty Larceny. H. P. C. 60.

Mixt Larceny, or Robbery, is a felonious taking from the Person, or out of the House, Money, or other





Coods, of any Value whatsoever, by Violence, and putting the Owner in Fear. Ibid 71.

[note]

In simple Larceny it is to be considered,

1. Who may be guilty of this Offence.

2. What is felonious taking.

3. What shall be a carrying away.

4. What are perschal Goods.

5. The Value.

1. Infants under 14 may be guilty; but ’tis Prudence to respite Judgment, yet such have been burnt in the Hand. Dalt. 104.

[note]

A married Woman may be guilty, by her own Act, and the Husband may be accessary in receiving her, knowing her to have committed Felony: But it she does it by Constraint or Compulsion of her Husband, and in his Company, ’tis no Felony in her; yet a bare Command of Persuasion shall not excuse her, for in such Case both shall be arraigned for the Felony. Ibid.

If a Servant steals, by Command of his Master, ’tis Felony in the Servant. H. P. C. 66.

2. There must be an actual taking; for if a Man finds Goods, and converts them, this is not Felony; or if he has Goods by my Delivery, and converts them to his own Use, before the Privity is determined, ’tis no Felony: But if I deliver Goods to a Carrier, to carry to any Place certain, which he does, and afterwards steals them, this is Felony; or if a Man has the Charge or Use of a Thing, a Shepherd of his Sheep, a Guest of Plate or other Things brought for his Use, and he removes them privately, with Intent to steal, but is taken with them before he gets away; in these, and such like Cases, the Party has only a bare Charge of the Goods, but no Possession by Delivery, and therefore if he steals them, ’tis Felony. H. P. C. 61.

[note]

So likewise, if a Man pretending to buy Goods in a Shop or Store, runs away with them, ’tis Felony: For tho’ he has them by my Delivery, yet the Property is not altered until the Contract is completed, by Satiffaction made or agreed, and the running away shews the Intention of the Party was to get the Goods into his Possession feloniously. Roym. 275.

If the Process of Law is made Use of to obtain Goods, viz. by a Replevin where the Party has no Property, and by that Means getting a Horse, or other Goods, delivered to him, this is a felonious taking: So by getting





Goods out of a House by Ejectment, where he has no Title, or by obtaining a Search Warrant for Goods pretended to be stolen, and taking the Goods of another. Sid. 254.

3. If a Man takes my Horse, with Intent to steal him, but is apprehended before he can get out of the Pasture, this is a carrying away: So if a Guest takes Sheets out of the Bed, or other Goods out of his Chamber, and brings them into the Hall, intending to steal them, but is apprehended with them before he gets away, this is carrying away. C. P. C. 47.

[note]

A Man kills my Sheep, strips them, carries away their Skins, Felony: So it is if they pull off their Wool, intending to carry it away, but is taken in the Fact. Cromp. 33.

4. Money, Bonds, and all Chattels personal, whethe Party has a Property or only bare Possession, are Goods personal. H. P. C. 67.

[note]

But Things annexed to the Freehold, as Fruit on the Trees, Corn or Grass growing, &c. taking them, no Felony. Dalt. 47.

Fish in a River or Creek, unconfined, and Creatures wild by Nature, and untamed, as Deer, Bears, &c. and likewise Beasts of a base Nature, as Dogs, Foxes, Cats, &c. These, and such like, are no personal Goods, and so no Felony to take them.

But where a Man has a Property in them, by their being made tame, and fit for Food, as Deer, Partridges, &c. or where they are raised tame, as Ducks, Hens, Turkies, &c. Horses, Colts, Caltes, &c. or where they are deprived of their natural Liberty, as Fish in a Pond, Weir, Net, or Trunk, &c. stealing them is Felony.

Taking Wrecks, Waifs, and Strays, before Seisure, no Felony.

5. The Value; if an Indictment be for taking Goods to the Value of 10s. or more, and the Jury find only to the Value of 10d. ’tis Petty Larceny.

[note]

If one Person steals Goods, at several Times, from the same Party, all amounting to more than 12d. they may be put into one Indictment, and if so found by the Jury, ’tis Grand Larceny.

Two steal Goods, above 12d. Value, Grand Larceny in both.





Grand Larceny is Felony, and the Offender shall have Judgment of Death, but may pray his Clergy.

[note]

Petty Larceny is also Felony, though not of Death; but the Offender forfeits his Goods, and subject to Whipping, and other corporal Punishment. H. P. C. 70.

[note]

Offenders in simple Larceny ought not to be admitted to Bail before any Justices, but upon good Consideration, and sufficient Surety.

Mixt Larceny, properly termed Robbery, is an Offence of greater Guilt and Malignity; because,

[note]

1. It is a violent taking from the Person, and putting him in Fear: This distinguishes the Robber from the Pickpocket, for if the taking be not violent, nor the Party put in Fear, then ’tis Larceny, not Robbery. H. P. C. 72.

An Assault, without taking any Thing, is no Felony: But commanding a Person to deliver, and he doth it, this is Robbery, tho’ the Thief deliver the Thing taken back again. Cromp. 31.

So is compelling a Man to swear to bring Money, he doth it, and the Robber, or any other for him, receives it. C. P. C. 16.

All that are in Company, tho’ the Fact is done by one alone, are Principals: Three come to rob, and one commits the Fact out of Sight of the others, and afterwards returns to them, ’tis Felony in all three. 1 & 116.

If a Man is pursued, and endeavouring to escape he drop his Hat, or Money, which the Thief takes up, this is taking from the Person: So is taking in his Presence, for in Law this is a taking from his Person. H. P. C. 53.

Assaulting one and putting him in Fear, then driving away his Cattle in his Presence, this is a taking from his Person, and Robbery.

In Robbery of any Value whatever, tho’ but a Groat, the Offender, and all Accessaries before the Fact, shall suffer Death as a Felon, without Benefit of Clergy. 23 H. 8. cap. 1. 1 Edw. 6. cap. 12.

Larceny from the Person may be without putting him in Fear, by picking the Pocket, or cutting the Purse, which is supposed to be done secretly, and without Knowledge of the Party: If it be under 12d. ’tis Petty Larceny; but if more, ’tis Felony, without Clergy, by the Statute 8 Eliz. cap. 4.

[note]



2. It may be committed by robbing a Man in his House, he, or his Wife, Child, or Servant, being therein, and put in Fear: ’Tis Felony in the Principal, and Accessaries before the Fact, by the Statute 23 H. 8. cap. 1. See Tit. BURGLARY.

Offenders in Robbery are not bailable before Justices of Peace.

Prosecution for Larceny must be as by Law prescribed for other capital Offences. See Tit. CRIMINALS.

Indictment for Grand or Petit Larceny.

THE Jurors for our Lord the King, upon their Oath, present, that A. B. late of — in the County of — Labourer, on the — Day of — in the — Year of the Reign of — with Force and Arms, at — in the County aforesaid, one Linen Sheet of the Value of — of the Goods and Chattels of one C. D. then and there being, feloniously did steal, take, and carry away, against the Peace of our said Lord the King, his Crown and Dignity.

[note]LEVIES.

LEVIES or Taxes are laid for defraying the necessary Charges of Government, and are of Three Sorts, viz.

[note]

1. The Public Taxes, laid by the General Assembly, from Time to Time, for the Contingences of Government.

2. The County Levy, laid by the Justices of the several County Courts, for defraying the necessary and incidental Charges of the County.

3. The Parish Levy, laid by the Vestry, for the Support of the Poor, paying the Minister's Salary, and other Charges of the Parish.

All male white Persons, from the Age of 16, and upwards; all Negroes, Mulattoes, Mustees, Male and Female, and all Persons of mixt Blood, to the Fourth Generation, of the Age of 12 Years, and upwards; and all white Persons intermarrying with any such, while so intermarried, shall be deemed Taxables.

[note]

The Justices of every County, at the first Court to be held after the Tenth Day of May, yearly, shall order,





by their Warrant, the Constable of every District to warn the Masters and Mistresses of every Family, and the Overseers of every Plantation where there is no Master, to appear before the Magistrate appointed to take the List of Taxables that Year, and to give in on Oath a List of their Taxables; and every Constable must return to such Magistrate, on Oath, a List of the Persons so warned. And if any Constable shall die, or be removed, the Magistrate is to appoint another.

[note]

Constable neglecting his Duty as above, to forfeit Five Pounds; Half to the King, and Half to the Informer.

The Court, at the Time of appointing Constables, shall appoint one Magistrate for each District to take a List of Tithables, who shall receive them on Oath, and compare his List with the Constable's Return, and if any have failed to inlist themselves, he shall report the same to the second Court after the First Day of May; which Justice shall then also return his List of Taxables taken, and the Constable's Return, and shall also, in his List, write the Names of every Master or Mistress of a Family, and Overseers of Plantations where there is no Master, with the Name and Sex of each Taxable Person, white or black, bond or free, and distinguish such Male Slaves as are 16 Years of Age, and upwards.

If no Justice in the District, the Court may appoint the most convenient one to it.

Where any Justice shall die or remove, the Chairman may appoint another to take the List.

If the Court shall neglect to appoint Constables to warn the People, and Justices to take the Lists of Taxables, they shall forfeit One Hundred Pounds; Half to the King, and Half to the Prosecutor.

If any Person shall neglect to give in their Taxables, Ten Days before the second Court after the First Day of May, he shall forfeit Forty Shillings for every Taxable concealed, recoverable in any Court of Record: Half to the Prosecutor, and the other Half to the King, for the Use of the County.

Every free Person coming into the Country to reside before the First Day of May, yearly, shall pay Taxes, unless such Person shall produce a Receipt of their having paid in some other County or Province for that Year.





Every Person having the Care of Orphans Estates are obliged to inlist the Taxables thereof; and every Person hiring Taxables, are to inlist such Taxables in the County where they reside.

Persons who have no Home, to procure some Housekeeper to inlist them.

If any idle Person shall neglect to inlist himself, or to procure some Housekeeper to do it, the Sheriff shall make Distress on his Goods and Chattels, if any, and if none, the Sheriff shall apply to some Magistrate, and make Oath of the same; which Magistrate shall issue his Warrant against such Person, whereupon the Sheriff must commit him to Gaol, there to remain one Month; and such Person shall not have the Benefit of the Insolvent Act, but at the Expiration of one Month, be sold as a Servant to any Person who will pay his Levies and Prison Fees for the shortest Time of Service; and such Person shall be under the same Penalties as indented Servants.

[note]

Every Justice neglecting to return his List, to forfeit Five Pounds, to the King and Prosecutor.

The Clerk of every County, within one Month after the Lists are returned, shall make out five alphabetical Lists of the Taxables returned, and transmit one Copy to the Sheriff, one Copy to the Court, one Copy to the Vestry, one Copy to the Treasurer, and shall affix one Copy in the Court-House of his County, and keep the same constantly set up, on Penalty of Twenty Pounds for each Neglect; Half to the Prosecutor, the other Half to the King, for the Use of the County.

[note]

Courts to allow the Clerks a reasonable Allowance for such Service.

Sheriff to give Bond for collecting the Taxables, on Penalty of Five Hundred Pounds; Half to the Prosecutor, the other Half to the Public, to be applied by the General Assembly.

[note]

If the Court shall fail to take such Bond, the Justices then sitting shall forfeit Five Hundred Pounds, applied as last mentioned.

Sheriffs to account for all Taxes by them received, whether inlisted or not; and where they neglect to pay the Taxes, the Superior Court may, at the Motion of the Chairman of the Court, give Judgment against them for all Sums due to the County.

[note]



Courts to provide Books for the Clerk to keep a Journal of all Expences of the County, also an Account of the Lists of Taxables, and every Thing thereto relating, on Penalty of Twenty Pounds; for such Services Clerks to be allowed by the Court.

[note]

Every Sheriff, at his Settlement with the Treasurer, shall deliver his Account, signed and proved, of all Monies received payable to such Treasurer, for the Use of the Public, which Accounts shall be the Treasurer's Vouchers in his Settlement with the Public; on Penalty of Five Hundred Pounds, Half to the Prosecutor, the other Half to the Use of the County.

[note]

No Sheriff to settle his Account with the Court, unless Five Magistrates be present.

[note]

If any Person fail to pay his Taxes after the Tenth Day of March, yearly, the Sheriff may make Distress for the same, and take 2s. 8d. for every Distress.

[note]

No Sheriff to be allowed more insolvent Taxes than named in his List, and sworn to; which List to be left with the Clerk, who is to put the same up in the Court-House, on Penalty of Ten Pounds, Half to the Parish, and the other Half to the Informer; for which Service the Clerk is to have Twenty Shillings.

[note]

If the Sheriff return the Name of any Person as insolvent who is not listed, or has paid his Tax for that Year, or shall collect or receive his Tax for the Year he was returned insolvent, he shall forfeit Twenty Pounds; one Half to the Parish, and the other Half to the Party injured.

LIBEL

AN infamous Libel signifieth a scandalous Report of any Person, cast abroad, or otherwise unlawfully published in Writing: It may be also without Writing, by Pictures or Signs; as to paint a Man in Fool's Colours, or to fix a Gallows, or other shameful Sign, at the Door of the Party. 5 Rep. 25.

[note]

If it be in Writing, then copying it, and delivering that Copy to another, is a Publication; so is malicious repeating it to others, or reading it to them, knowing it to be a Libel.





To libel any private Person is an Offence punishable by Indictment or Information, and the Offender shall be fined, because it tends to the Breach of the Peace; and tho’ the Matter be true, yet ’tis not justifiable upon an Information: But if an Action on the Case be bro't for Words actionable, there the Defendant may justify that it was true. Moor. 627.

[note]

A Man was Suitor to a rich Widow, and the Defendant wrote a Letter to her, advising her not to marry him, for he was a debauched Person, had the Pox, was not worth a Groat, and had declared, that if he married her he would allow 50l. per Annum to a Whore: This Letter was conveyed to the Widow, but not subscribed by the Defendant; yet, upon Evidence, appearing to be his Writing, he was fined 200l. Sid. 138.

If a scandalous Letter be directed to the Party himself, and not to a third Person, no Action on the Case will lie, because ’tis no Publication: But this tends to the Breach of the Peace, and therefore shall be punished by Indictment or Information. 2 Brownl. 141.

And Sir Francis Bacon said, that such a private Letter compels the Party to whom ’tis sent to publish it to his Friends for their Advice, for fear it should be published on the other Side; and therefore this shall be taken as a Publication by the Delinquent: The Fine assessed hereupon was 500l. Poph. 140.

To libel the Government, or a Magistrate, is a great Aggravation of the Crime: Many Instances might be given of severe Punishments, in Purse and Person, inflicted upon such Offenders; One was fined 5000l. Sterling, and imprisoned during the King's Pleasure, for speaking these Words of a Judge sitting in Court, viz. ‘I accuse Mr. Justice Hatton of High Treason.’ Cro. Car.

[note]

The Person to be convicted must be either the Contriver of the Libel, or the Procurer, or a malicious Publisher. 9 Rep. 59.

If a Man finds a Libel against a private Person, he ought to burn it, or carry it to a Magistrate: If against any Person in Office, or Magistrate, or against the Government, or the King, he ought to deliver it to some Magistrate, that the Offender may be found, and punished.





If a Libel is found in a House, the Owner of that House cannot be punished for framing or publishing it; but he may be indicted for having it, and not delivering it to a Magistrate. 1 Vent. 31.

It has been resolved, that scandalous Letters concerning a private Person are punishable upon Indictment or Information exhibited before Justices of Peace, in Sessions, because they tend to the Breach of the Peace. 1 Lev. 139.

So are Words spoken of a Justice, as, that he is not fit to talk Law, or the like. 3 Mod. 139.

Indictment for a Libel.

THE Jurors for our Lord the King, upon their Oath, present, that A. B. late of — in the County of — Gentleman, not having God before his Eyes, but moved by the Instigation of the Devil, and falsty and maliciously contriving and intending to bring our said Lord the King into Hatred and Infamy amongst his Subjects, and to move Sedition amongst the Subjects of our said Lord the King, did on the — Day of — in the — Year of the Reign of — with Force and Arms, at — aforesaid, in the County aforesaid, falsly, seditiously, and maliciously write and publish, and cause to be written and published, a certain false, seditious, and scandalous Libel, intitled — In which said Libel are contained, among other Things, divers false, seditious, scandalous, and malicious Matters, according to the Tenor following, to wit, — And in another Part of the same Libel are contained divers other false, seditious, scandalous, and malicious Matters, according to the Tenor following — to the evil Example of all others in the like Case offending, and against the Peace of our said Lord the King, his Crown and Dignity.

[note]LORD's DAY.

ALL Persons, not having reasonable Excuse, shall resort to their Parish Church or Chapel (or to some Congregation of religious Worship allowed by the Toleration Act) on every Sunday, on Pain of Punishment by the Censures of the Church, or of forfeiting 1 s. to the Poor for every Offence. 1 El. c. 2. s. 14,





24. To be levied by the Churchwardens by Distress, by Warrant of one Justice. 3 J. c. 4. s. 27, 28.

[note][note]

By the 1 J. c. 22. no Shoemaker shall shew, to the Intent to put to Sale, any Shoes, Boots, Buskins, Startops, Slippers, or Pantofles, upon the Sunday, on Pain of 3 s. 4 d. a Pair, and the Value thereof; to be recovered at the Assizes, Sessions, or Leet; one Third to the King, one Third to him who shall sue, and one Third to the Town or Lord of the Leet. s. 28, 46, 50.

[note]

And by the 3 C. c. 1. no Carrier with any Horse or Horses, nor Waggonman with any Waggon, nor Wainman with any Wain, nor Drover with any Cattle, shall by themselves, or any other, travel on the Lord's Day, on Pain of 20 s. or if any Butcher, by himself, or any other for him, with his Privity and Consent, shall kill or sell any Victual on the Lord's Day, he shall forfeit 6 s. 8 d. The Conviction to be in six Months, before one Justice, or Mayor, on View, or Confession, or Oath of two Witnesses; to be levied by the Constable or Churchwarden by Distress, or to be recovered in any Court of Record, in any City or Town corporate, before the Justices in Sessions; to be applied to the Use of the Poor, except that the Justice may reward the Informer or Prosecutor with Part of the Forfeiture, not exceeding one third Part.

[note]

No Person upon the Lord's Day shall serve or execute any Writ, Process, Warrant, Order, Judgment, or Decree (except in Cases of Treason, Felony, or Breach of the Peace) but the Service thereof shall be void; and the Person serving the same, shall be as liable to answer Damages to the Party grieved, as if he had done the same without any Writ, Process, Warrant, Order, Judgment, or Decree. 29 C. 2. c. 7. s. 6.

[note]

By an Act of Assembly of this Province, for the better Observation and keeping of the Lord's Day, and for the Suppression of Vice and Immorality, all Persons shall on the Lord's Day apply themselves to the Duties of Religion and Piety, and no Tradesman or Planter shall, by Land or Water, do any Labour, Business, or Work, of their ordinary Callings (Works of Necessity or Charity excepted) nor employ themselves in hunting, fishing, or fowling, nor use any Game, Sport, or Play, on Pain of forfeiting Ten Shillings, to be paid by every Person above the Age of 14 Years, offending herein.

[note]



If any Person shall profanely swear or curse in the Hearing of any Justice of the Peace, or shall be convicted thereof by the Oath of one or more Witnesses, or Confession of the Party before any Justice, he shall forfeit Two Shillings and Six Pence for every Oath. And if any Person executing any public Office shall profanely swear or curse, and be convicted thereof, he shall forfeit Five Shillings for every Offence.

Persons swearing in the Presence of a Court of Record, shall pay Ten Shillings, to the Chairman of the Court.

If any Person shall get drunk on the Lord's Day, and be convicted by View of any Justice, or the Oath of one or more Witnesses, he shall forfeit Five Shillings, if committed on the Lord's Day; if on any other Day, Two Shillings and Six Pence for every Offence.

Every Justice of the Peace may convene before him Offenders herein, and impose the above Fines on them, and commit the Offenders till paid, or levy the same on their Goods and Chattels. If any Offender should be unable to pay, he may be put in the Stocks for three Hours.

All Informations against the aforesaid Offences to be made within Ten Days.

All Fines and Forfeitures by this Act imposed to be levied as soon as may be, and applied one Half to the Informer, the other Half to the Use of the Parish; and the Chairman and Justices of the Courts are to account for the same on Oath to the Churchwardens of the Parish once a Year, on Penalty of Twenty Pounds, to be applied as above.

On Information to a Justice of the Peace for any of the Crimes by this Act imposed, he must issue his Warrant to apprehend the Party, and on Conviction thereof before him, he is to levy the Fine as above mentioned.

Warrant to apprehend a Person for profane Swearing.

— County, ss.

To A. B. Constable, or any lawful Officer of the said County.

WHEREAS Information hath been this Day made to me, C. D. Esq; one of his Majesty's Justices of the Peace for the said County, that E. F. of — hath been guilty of profanely cursing and sivearing, contrary





to the Act of Assembly in that Case made and provided. These are therefore, in his Majesty's Name, to require you to apprehend and bring before me, or some other Justice of this County, the said E. F. to be dealt with as the Law directs. Given under my Hand and Seal, this — Day of —

[note]

If the Information is for any other of the Offences against this Act, the Warrant must be varied accordingly.

MAIHEM.

MAIHEM, or Maim, is a corporal Hurt, whereby a Man loses the Use of any Member, necessary for the Defence of his Person; as the Hand, Finger, Foot, Eye, Tooth, or when by breaking a Bone, a Contraction or shrinking of the Sinews ensues; or any other Hurt in a Man's Body, whereby he is disabled to defend himself, or offend his Enemy. Co. Lit. s. 194.

[note]

Cutting off the Ear or Nose, or breaking the hind Teeth, was not allowed to be a Maihem by the old Writers, as being rather a Deformity to the Body, than any Diminution of Strength; yet they allow Castration to be a Maihem. Stamf. 39.

Before the Statute 22 & 23 Car. 2. the Offender, convicted upon an Indictment of Maihem, was to pay a Fine, set by the Court upon View of the Person maimed, or he might recover Damages by Action of Trespass at Common Law; But by that Statute, maliciously to cut off and disable the Tongue, put out an Eye, slit or cut the Nose, or cut off or disable any Limb or Member, with Intention to maim or disfigure, is Felony without Clergy, in Principals, and their Counsellors, Aiders, and Abettors. Moor. 268.

[note]

Anciently, this was Felony at Common Law, and the Offender was to lose the same Part. 3 Inst. 18.

And by the Statute 5 H. 4. c. 5. to cut out the Tongue, or put out the Eyes of any Person, is Felony.

By an Act of Assembly of this Province, if any Person shall on Purpose, cut out or disable the Tongue, put out an Eye, slit the Nose, bite or cut off a Nose or Lip, bite or cut off, or disable any Limb or Member of any Person, such Person, his Counsellors, Aiders,





or Abettors, shall be declared Felons, and suffer accordingly; but no such Attainder shall corrupt the Blood, or forfeit the Dower of the Wife, or the Lands, Goods, or Chattels of the Offender.

[note]MAINTENANCE.

MAINTENANCE is an upholding Quarrels or Suits, to the Disturbance of common Right, by lending Money, or making Friends by Word or Writing, on either Side, tho’ he has nothing to do therein. It is by the Law distinguished in two Parts,

[note]

1. In Courts of Justice; by maintaining one Side in any Suit depending.

[note]

2. In the Country; by stirring up and maintaining Complaints, Suits, and Quarrels, not their own, tho’ the same depend not in Plea. Co. Inst. cap. 28.

To inform a Jury voluntarily, not as a Witness, but of his own Head; one Juror giving Money to another, to pass a Verdict; a Person who is no Party in the Suit, writing a Letter to a Juryman, desiring him to appear; giving Money to either Party, to continue a Suit depending: These, and such like, whereby a third Person encourages Suits and Quarrels, not his own, and tho’ he gain nothing thereby, are Maintenance. 28 H. 6. & 17 Edw. 4.

If a Man of Power or Authority declares, in Presence of many People, that he will spend Money for such a Person, in a Suit, &c. ’tis Maintenance. 9 H. 7.

Solliciting a Jury, and shewing them Precedents where great Damages were given, in a like Case, is Maintenance. 3 Cro. 736.

This Crime is punishable either by Indictment at Common Law, or by Information upon the Statute 32 H. 8. cap. 9. which declares, that none shall unlawfully maintain any Suit, or retain any Person for Maintenance, embrace Jurors, or suborn Witnesses, on Pain to forfeit for any of these Offences 10 l. to be divided between the King and Prosecutor.

[note]

Prosecution on this Statute must be within a Year after the Offence. 1 Vent. 302.





Champerty is a Bargain with the Demandant or Tenant, Plaintiff or Defendant, to have Part of the Lands, Goods, or Gains, in Variance, that shall be recovered; and in Consideration thereof, the Champertor prosecutes the Suit at his own Costs: Every Champerty is Maintenance, but every Maintenance is not Champerty, for this is but a Species of Maintenance. Co. 2 Inst. cap. 3. Fitz. Herb. Nat. Brev. 171.

[note]

This Offence is punishable by Indictment; and the Offender, upon Conviction, shall pay a Fine, and suffer three Months Imprisonment. Act. Sup. Chart. cap. 11.

[note]

Embracery is a solliciting or labouring with the Witnesses or Jury, by persuading them to appear, instructing or informing them of the Cause, or using Promises, Threats, Menaces, &c. Moor. 816.

[note]

This is also prohibited by the Statute 32 H. 8. cap. 9. above recited in Maintenance, and punishable in like Manner.

All these Offences, as tending to the Breach of the Peace, are cognizable before the Justices, by Virtue of their Commission. Offenders in all, or any of them, are bailable.

Indictment for Maintenance.

THE Jurors for our Lord the King, upon their Oath, present, that A. B. late of — in the County aforesaid, Yeoman, on the — Day of — in the — Year of the Reign of — with Force and Arms, at — aforesaid, in the County aforesaid, did unjustly and unlawfully maintain and uphold a certain Suit, which was then depending in the Court of our said Lord the King, before the King himself, between C. D. Plaintiff, and E. F. Defendant, in a Plea of Debt, on the Behalf of the said C. D. against the said E. F. contrary to the Form of the Statute in such Case made and provided, and to the manifest Hinderance and Disturbance of Justice, and in Contempt of our said Lord the King, and to the great Damage of the said C. D. and against the Peace of our said Lord the King, his Crown and Dignity.

[note]



MARRIAGES.

EVERY Clergyman of the Church of England, or for Want of such, any lawful Magistrate, may join together in holy Matrimony, all Persons who may lawfully enter into that State, having complied with the Directions of this Act.

[note]

No Justice to marry any Persons in any Parish where a Minister shall have the Cure, without Permission from such Minister, on Penalty of Five Pounds, to the Use of the Minister.

No Minister or Justice to marry any Persons without Licence, or Thrice Publication of the Banns, on Penalty of Fifty Pounds. And if any Minister shall go out of the Government, and marry any Persons belonging to it, without Licence or Publication as aforesaid, he shall incur the same Fines as above.

Where no Minister in a Parish, the Clerk or Reader may publish Banns, and give a Certificate, which shall be sufficient for any Justice to marry the Parties.

All Marriage Licences are to be issued by the Governor, or Commander in Chief, under his Hand and Seal, the Person to be married first giving Security to the Clerk of the Court where the Feme resides, in the Sum of Fifty Pounds, to the King, that there is no lawful Impediment to the Marriage. If either of the Parties be under Age, and not heretofore married, the Consent of the Parent or Guardian must be given to the Clerk. Penalty of Forty Shillings on the Clerk for Neglect of Duty.

If any Minister or Reader shall publish the Banns of Matrimony between Servants, or free Persons and Servants, or if any Minister or Justice shall celebrate Marriage between any such, without a Certificate from the Master or Mistress, he shall forfeit Five Pounds, to the Use of the Master; and the Servant shall serve his Master or Mistress one Year, over and above his Time of Service.

Clerks to account with the Governor for all Fees due to him, or the Court, on Motion, may give Judgment against him for the same.

Fees on Marriages.

To the Governor, for the Licence,1 0 0

[note]



To the Clerk of the Court, for taking Bond,0 5 0
To the Minister for marrying, if by Licence,1 0 0
If by Banns,0 5 0
To a Justice of the Peace for marrying,0 5 0
To the Minister or Reader for publishing Banns, and granting Certificate,0 1 6

If any Minister or Justice of the Peace shall refuse to marry any Persons for the above Fees, or shall demand any greater, they shall forfeit, if by Licence, Ten Pounds, if by Banns, Five Pounds. One Half of all Fines by this Act not otherwise applied, to the Churchwardens of the Parish, the other Half to the Informer, recoverable in any Court of Record.

If any Minister or Reader shall refuse to publish the Banns for the lawful Fees, he shall forfeit Ten Pounds, to be applied and recovered as aforesaid.

The Minister of the Parish to have the Fees for Marriages, if he do not refuse to do the Service.

If any white free Person shall intermarry with a Negro, Indian, Mulatto, or Mustee, or any Person of mixt Blood, to the third Generation, bond or free, he shall forfeit Fifty Pounds, to the Use of the Parish.

If any Minister or Justice of the Peace shall marry any such Persons, knowing them to be so, he shall forfeit Fifty Pounds, to be applied as aforesaid.

All Marriages solemnized by any dissenting or Presbyterian Clergy, before the First Day of January, 1767, in their accustomed Manner, declared good and valid.

[note]

After the First Day of January, 1767, any Presbyterian Minister may celebrate the Rites of Matrimony between any Persons, in their accustomed Manner, under the same Regulations as any lawful Magistrate may marry.

All such Marriages to be by Licence from the Governor, under Fifty Pounds Penalty.

Fines by this Act recoverable by any Jurisdiction having Cognizance thereof; one Half to the Prosecutor, and the other Half to the Parish.





MILLS.

ALL Mills grinding for Toll, deemed Public Mills. No Person to build a Public Mill without an Order of the County Court, which shall be obtained thus: A Person having Land on both Sides of a Run, shall petition the Court for Leave to build such Mill, which Petition the Court may grant or deny.

[note]

Where any Person wanting to build a Mill hath Land on one Side of a Run only, he shall petition the Court, and shew who is the Owner of the Land on the opposite Side, when a Summons shall issue to such Person to appear at the next Court, and answer to such Petition; the Court, at the same Time, shall order Four Freeholders to lay off and value an Acre of Land on both Sides the Run, and report their Proceedings to the Court; and if it take not away Houses, Orchards, Gardens, or other immediate Conveniencies, the Court may grant Leave to the Petitioner, or Proprietor of the Land on the other Side, to build such Mill, and to pay all Costs.

The Person obtaining Leave, to pay down in Court the Valuation Money, which shall be recorded, and shall be a good Title to the Land.

No Mill to be built within Two Miles of a Mill above, or Two Miles below, or so as to overflow any other Mill.

Persons to begin to build Mills within One Year, and finish the same within Three Years, and constantly keep the same up; otherwise the Land to return to the first Owner, unless further Time be allowed by the Court.

Mills belonging to any Persons under Age, Feme Coverts, non compos Mentis, or imprisoned, suffered to let fall, such Persons shall have Three Years to rebuild the same, after their Disability removed.

Any Person aggrieved by Order of any Court, may appeal to the Superior Court of the District, which Court may grant Relief.

Persons who have built Mills in Virtue of Orders of Court heretofore granted, and have paid the Purchase Money, quieted in their Possessions.

Owners of Mills injured by the building of other Mills, may have their Action against the Party for Damages.





All Millers to gring according to Turn, and to well grind the Grain if Water will permit, and may take one Eighth Part of Wheat, and one Sixth Part of Corn, for grinding, on Penalty of Fifteen Shillings to the Party injured for taking larger Toll, not grinding in Turn, or not grinding well; recoverable before a Justice of the Peace.

Owners of Mills may grind their own Grain at any Time.

Millers are to keep in their Mills the following Measures, viz. An Half Bushel and Peck, tried and stamped, Two Toll-Dishes for each Measure, one for Wheat, that shall not hold more than one Eighth Part of each Measure, and one for Corn, that shall not hold more than one Sixth of each Measure, on Penalty of Fifteen Shillings to the Party injured, recoverable before a Justice of the Peace. If the Miller is a free Person, and keeps the Mill for Hire, the Owner of the Mill may stop such Fine out of his Wages.

MISDEMEANOR.

THIS is a general Word, and comprehends all Kinds of Misbehaviour; yet is not properly applicable to any one particular Crime or Offence prohibited by the Law, but to such only, which tho’ not specially provided against, are nevertheless punishable by Indictment, and the Offender may be fined and imprisoned, at the Discretion of the Court before whom he shall be convicted.

[note]

It would be endless to enumerate the several Offences proper under this Title, I shall therefore mention only Two.

One sent a Challenge, by another, to fight; the Challenger, and the Bearer of the Challenge, were both indicted for a Misdemeanor, fined 100 l. a Piece, committed for a Month without Bail, and were to make a public Recantation, as the Court should direct, and bound to be of the good Behaviour seven Years. Sid. 186.

[note]

A Man and his Wife disagreeing, she applied herself to one Golding, a Parson, and offered him 40 s. to whip her Husband: The Parson undertook it, and came in





Woman's Cloaths to the Chamber where the Husband was, and endeavoured to whip him with a Rod; in striving they were both hurt. The Parson run away from the Husband, who died in a little Time after this Scuffle. All this being proved, the Wife and Parson were fined 500 l. each. Poph. 129.

Every Justice of Peace, by Virtue of his Office, may by his Warrant cause any Person to be brought before him, for Misdemeanors tending to the Breach of the Peace, and may require Sureties of the Offender, for his personal Appearance before the next County Court, to answer the Premises, and in the mean Time to be of good Behaviour. If the Justice see Cause, he may require the Party to find Sureties, to be bound in very considerable Sums, and on Refusal, commit him. Dalt.

[note]

But there are some Crimes and Misdemeanors, tho’ not capital, nor punishable in the common Method of Proceedings, before the King's Judges or inferior Magistates, yet nevertheless of transcendent Malignity: Such as are a Complication of divers Crimes, tending to the universal Prejudice of the Subject, or the total Subversion of the Government in Church and State, committed by Men of Parts and Figure, abusing their Office and Authority, and under Colour of Law oppressing the Subject, or injuring the Common Weal. These are punishable only by the King in his Supreme Tribunal, the House of Peers, upon Articles of Impeachment exhibited against the Offender, by the Knights, Citizens, and Burgesses, of the House of Commons, in Parliament assembled.

[note]MISPRISION.

IN the Common Law this signifies Neglect or Oversight, in one who knows that another has committed Treason or Felony, and was not consenting to the Fact, but yet conceals the Offender. 1 St. P. C. cap. 19.

[note]

But knowing a Treason intended, before it is committed, and assenting to it, is Treason.

So is receiving and comforting a Traitor, or a Counterfeiter of Coin, knowing him to be so. H. P. C. 127.





Misprision is either,

1. Of Treason, or

2. Of Felony.

Concealing Treason, but not assenting to it, and forging foreign Coin, or knowingly uttering such, are Misprisions of Treason, punishable by Forfeiture of Goods for ever, of Lands during Life, and perpetual Imprisonment. 5 Inst. 134. H. P. C. 126.

[note][note]

Every Man that knoweth a Treason, intended or done, must forthwith reveal it and the Traitor, to the King, or his Council, or other Magistrate. H. P. C. 131.

To draw a Sword, or strike a Judge, or Juror, in Presence of a Judge sitting in Court; rescuing a Prisoner from the Bar in the King's Supreme Courts of Judicature; striking there in Presence of the Court; drawing a Sword upon any Judge or Justice, tho’ he strike not, in Presence of those Courts, or before Justices of Assize, or Oyer and Terminer: These are great Misprisions, punishable as in Treason, besides Loss of the Offender's right Hand. H. P. C. 131.

Striking in the King's Presence, if Blood drawn, Loss of right Hand, perpetual Imprisonment, Fine, and Ransom. 33 H. 8. cap. 12.

Grand Juror discovering Persons indicted, or the Evidence; any Person reproaching a Judge, or assaulting an Attorney for the King, or abusing a Juror for giving a Verdict against the Offender; dissuading Witnesses from giving Evidence against a Felon: These are Misprisions, punishable by Fine and Imprisonment. C. P. C. cap. 64.

[note]

To conceal, or procure the concealing a Felony, or compounding it, is Misprision of Felony.

Where the Owner of Goods stolen doth not know the Felon, but takes his Goods again, or other Amends not to prosecute, this is Theft-bote, and more than bare Misprision, because more than Concealment; but only taking his Goods again is no Offence.

[note]

The Punishment is the same in both these Cases, viz. Fine and Imprisonment. H. P. C. 130.

[note]

Justices of Peace cannot hear and determine these Offences, but they may receive Informations, and cause Offenders to be brought before them, take Examinations, and proceed as in other criminal Offences triable in the Superior Court.





MURDER.

MURDER is the killing any Person, within the Realm, upon Malice forethought, the Death ensuing within a Year and a Day after the Stroke given. H. P. C. 43.

[note]

In this Definition ’tis proper to consider,

1. What is a killing.

2. The Person killed.

3. What is within the Realm.

4. Malice forethought.

1. Killing; this may be by several Means, without Weapon or Arms, as by bruising, crushing, famishing, poisoning, smothering, strangling, and by divers other Ways, as laying a sick Man in the Cold, hiding an Infant under Leaves, Trees, &c. to be destroyed by Vermin, setting on a Dog, or other Beast accustomed to bite or do Mischief: These, and such like, if done with Intent to kill or hurt, ’tis Murder; but if without any such Intention, ’tis Manslaughter. 1 Lev. 146.

[note]

2. The Person killed, must be a perfect Body natural; for if a Woman take Poison to destroy a Child, whereof she is quick, ’tis not Murder, tho’ a great Misprision: But if born alive, and the Child then dies of that Poison, it is Murder. Advising to destroy it before born, afterwards it is born and destroyed, the Adviser accessary to the Murder. H. P. C. 54.

[note]

3. Within the Realm: If a Person is wounded, and dies, beyond Sea, the Offender cannot be punished here. Wounding and dying upon the Sea is triable before the Admiral of England. 22 H. 8. cap. 13.

[note]

The killing shall have Relation to the Death, and not to the Stroke; and Death ensuing in another County, the Jury shall be of the Vicinage where the Party died. 4 Rep. 41.

4. Malice forethought: This is two-fold, viz. Either Malice express or implied.

[note]

Express Malice is where the Intent evidently appears malicious, from the Nature or Circumstances of the Fact; as where there has been a precedent falling out, or Quarrel, or a Challenge, and Time and Place appointed to fight, or where there is a lying in Wait privately to kill the Party, or to do Mischief. Dalt. 343.

So likewise if a Man is resolved to do an unlawful Act, as to rob or steal, and Death ensues, ’tis wilful Murder. Dyer 128.





So ’tis if a Man intends to kill, stab, shoot, or poison another, and the Death of a third Person ensues. Plew. 473, 476.

Malice between two; the Fight, tho’ the Deceased give the first Stroke, ’tis Murder in the other. 1 Roll. Rep. 360.

The Deceased challenged another, who refused to fight, but afterwards upon Importunity met, and killed him, Murder. 3 Bulst. 172.

Tho’ Death is not intended, if the Act be deliberate and malicious, and Death ensues, ’tis Murder. The Keeper of a Park finding a Boy stealing Wood, tied him to a Horse's Tail, which in running away killed the Boy; this was Murder, because a deliberate Act. James 198.

If a Man assaults another with a dangerous Weapon, or Instrument of Mischief, without just Provocation, ’tis express Malice, from the Nature of the Fact, which is cruel. Mawgridge’s Case.

Where express Malice doth not appear, yet Malice may be implied and collected several Ways; as,

1. From the Manner of the Fact.

2. From the Person slain.

3. From the Person killing.

1. From the Manner of the Fact: By wilful poisoning; riding among a Company of People with an unruly Horse, used to strike, and knowing him to be so; throwing Stones, on Purpose to do Mischief: These, and such like, are unlawful Acts, and shew that the Party intended to do Mischief tho’ not to any one Person in particular, and this implies Malice; for the Intention of doing Harm makes it Murder. H. P. C. 44.

[note]

If a Man corrects his Servant, a Father his Son, or a Schoolmaster his Scholar, tho’ this is allowable, yet if done with such Instruments as may probably kill him, ’tis Murder; so ’tis if a Mother kicks and stamps on her Child's Belly. In these, and such like Cases, if Death ensues, ’tis Murder; and the Law implies Malice in the Persons who are guilty. Dalt. 93.

2. In Respect of the Person killed: If a Magistrate, Sheriff, Constable, or other Officer, or Minister of Justice, be killed in the Execution of his Office, in keeping the Peace, or executing any lawful Authority or Warrant, ’tis Murder in the Person killing, and all





who are present, aiding or assisting, are principal Murderers; for in these Cases, the killing a Magistrate, or an Officer of Justice, or any of his Company, in the Execution of their Duty, is by the Law intended to be Malice forethought, because the Party maliciously opposes the Law, and the King's Magistrate, or Minister of Justice. Dalt. 344.

[note]

But then they must know him to be an Officer, and he must shew his Warrant, if required; or he ought to command them, in the King's Name, to keep the Peace, and they must at their Peril obey him, whether they know him to be an Officer or not; and he must be doing what is warrantable by the Law, otherwise ’tis but Manslaughter. 1 Cro. 132, 183.

All who are present and assisting a Person arrested, knowing of the Arrest, are principal Murderers, if the Officer is killed. Sid. 160.

If several Persons come with Intent to rob, kill, or steal, or to commit any other unlawful Act, and one of them commits Murder, tho’ not in View or Presence of the Rest, all are principal Murderers. H. P. C. 47.

Where one kills another without Provocation, or suddenly without any Quarrel, or privately, the Law implies Malice. Dalt. 343.

By the Statute 1 Jac. 1. cap. 8. slabbing, striking, or thrusting another, who hath not then any Weapon drawn, or hath not first striken the other, if the Party stabbed, &c. dies within Six Months, the Offender shall suffer Death, as a wilful Murderer, without Benefit of Clergy.

If a Person wounded neglects his Cure, or lives disorderly, yet if he die of those Wounds, ’tis Murder, or Manslaughter, as the Case shall appear upon Evidence against the Offender, because the Wounds were the principal Cause of the Death. Keel. 26.

3. Malice may be collected out of Circumstances, shewing the Temper and Intent of the Person killing; as if one assaults another with Intention to rob, but being resisted, kills the Person he assaluted, ’tis Murder.

[note]

So it is if a Gaoler, by hard Usage, kills his Prisoner, or if an Officer executes martial Law in Times of Peace. Nels. 416.

If a Man persuades another to kill himself, and is present when he doth it, he is a Murderer. Dalt. 344.





If two Men quarrel, and one challenge the other to fight at a certain Time and Place, who accepts the Challenge, they meet, fight, and one is killed, ’tis Murder; for there being Time to allay the sudden Heat occasioned by the first Quarrel, the second Meeting must be in Malice: And ’tis not material who gave the Challenge, or strikes first, their Meeting appears deliberate and malicious, and tho’ the Deceased gave the first Wound, ’tis Murder in the other who killed him. H. P. C. 48.

Where Malice is intended to one, but is executed upon the Person of another, tho’ contrary to the Intention of the Person killing, ’tis Murder. Dyer 128.

Two fight upon Malice, and a third Person coming to part them, is killed, Murder in both, unless proved which of them killed him. Lamb. 238.

A Man maliciously shoots, or lies in Wait, to kill one, but by Accident kills another undesignedly, Murder. Plowd. 474.

There are a great Variety of Cases in Law distinguishing Murder from Manslaughter: Where the Fact or Circumstances appear malicious, deliberate, wilful, or barbarous and cruel, or where the Intention was to do an unlawful Act, and in the Execution of such illegal Purpose Death ensues, tho’ not at first intended, ’tis Murder; but if the Fact be sudden, unexpected, and without any evil Intent, or malicious Purpose, ’tis Manslaughter. See Tit. HOMICIDE.

[note]

I shall here mention only one remarkable Case, viz. Husband and Wife had lived together many Years, and became very poor. The Man told his Wife that he was weary of living, and that he would kill himself; the Woman replied, that she would die with him. Thereupon he desired her to buy Ratsbane, and they would put it into Ale, and drink it together. She bought it, put it into the Cup, and both drank. The Wife considering what she had done, took Sallad Oil, expelled the Poison, and recovered; but the Man died. The Question was, Whether this was Murder in the Wife? But it was not resolved. Moor 754.

There are some Provocations so violent, that they mitigate the Crime; as where a Father rescues his Child from one that would beat or kill him; or where a Man finds another in the Act of Adultery with his Wife. 1 Vent. 158.





But such a Provocation as extenuates the killing from Murder to Manslaughter, must be where there is some actual Violence or striking. Words alone are no Manner of Provocation, tho’ never so opprobrious, nor any affronting Gestures, tho’ never so reproachful. 3 Cro. 779.

This Crime is aggravated by the Quality and Condition of the Person who commits it: It becomes Petty Treason in a Wife killing her Husband, or the Servant killing his Master or Mistress. Dyer 128, 332.

All who are present, aiding and abetting, or ready to aid and abet another, in doing an unlawful Act, as to kill, rob, or beat a Man, or to commit a Riot, and one of them kills any Person, this is Murder in them all, tho’ but Lookers on, or in another Room, or at some Distance, and out of View; yet all shall be accounted present, aiding and abetting, and punishable as Principals, in the second Degree. H. P. C. 51.

But then the Abettor must know the malicious Design, and the killing must be deliberate, and in Pursuance of that unlawful Act.

He that commands, counsels, or procures another to kill a third Person, who is killed, tho’ not with such Weapon, nor in the Manner commanded, ’tis Murder in him that gave the Command, and he is accessary before the Fact.

If one command or procure another only to beat a third Person, and Death ensues upon this Beating, ’tis Murder in the Person commanded, and he who gave the Command is accessary, because Death ensued upon that unlawful Act of beating. Nels. 418.

If a Man lays Poison to kill another, and a third Person by Misadventure takes it and dies, ’tis Murder in him that laid it: But if A. procures B. to poison C. and he by Mistake poisons D. this is Murder in B. but A. is not accessary to it. H. P. C. 52.

Death must ensue within a Year and a Day after the Wound, Hurt, or Poison given, otherwise ’tis not Murder. Dalt. 348.

But an Appeal of Death may be brought by the Wife or Heir of the Deceased, within a Year after the Death; for in this Case the Time shall relate to the Death, not to the Stroke. See Tit. APPEALS.

[note]

By the Statute 21 Jac. 1. cap. 7. if any Woman, not being a Slave, shall be delivered of a Bastard, born





alive, and endeavours by drowning, private Burial, or any other Means, to conceal the Death of such Child, she shall suffer Death as for wilful Murder, except she proves, by one Witness at least, that the Child was born dead. By this Statute, the Concealment is the Crime, and therefore where it appears that the Birth was intended to be concealed, ’tis Murder, tho’ the Child was not born alive: For the Statute doth not create a new Offence, but declares what shall be Evidence of the Murder. Keel 32.

Wilful Murder is by the Law placed at the Head of all other Offences, as excelling in Malignity and Guilt all Crimes, except Treason: And by the Law of God, no Recompence was to be taken for the Life of a Murderer, but he shall be put to Death; for the Land cannot be cleansed from the Blood shed therein, but by the Blood of him that shed it. Numb. xxxv. 31, 33.

[note]

And by divers old Statutes, no Pardon ought to be granted by the King, in Case of Murder or other Homicide, save only where a Man kills another in his own Defence, or by Misfortune. See Tit. PARDON.

This Offence is punished with the Death of the Offender; after Attainder his Blood is corrupted, and all his Fee-Simple Lands, Goods, and Chattels, are forfeited to the King.

[note]

Upon Information of Murder made before a Justice of Peace, he must forthwith issue his Warrant to apprehend the Offender, and the Aiders and Abettors, if known, or the Persons against whom reasonable Cause of Suspicion appears: If they are fled, Pursuit ought to be made by Hue and Cry, mentioning the Name of the Person murdered, the Time and Place when and where, and by whom, together with a Description of their Persons, Apparel, &c. where necessary, and whether they are charged with the Fact upon Oath, or upon Suspicion. See Tit. FELONIES.

When the Offenders, or any of them, are apprehended, and brought before a Magistrate, the Proceedings must be in the Method by Law directed for Felony. See Tit. CRIMINALS.

Neither Principal, nor Accessaries in Murder, are bailable before Justices of Peace.

If a Man has dangerously wounded or hurt another, so that his Life is despaired of, the Offender ought to be apprehended, and brought before a Justice, and by





him committed to Gaol: But at the next County Court, if the Party wounded is not dead, upon Tender of sufficient Sureties, and Regard had to the Fact, and all Circumstances, the Justices may, in open Court, admit the Prisoner to Bail, if they see Cause, till the other be dead; but they must take very sufficient Sureties, and in a considerable Sum.

A Self-Murderer, termed in Law Felo de se, is one who voluntarily kills or destroys himself, by Sword, Gun, Poison, Hanging, Drowning, or any other Means, causing a violent and unnatural Death.

[note]

Four Things are required to make a Man guilty of this Offence:

1. He must be of the Age of Discretion.

2. Compos Mentis, that is, of sound Memory.

3. The Act must be voluntary.

4. Death within a Year and a Day after the Wound or Stroke given.

If a Man, not being of sound Memory, gives himself a mortal Wound, but before he dies he becomes Compos Mentis, and then dies of that Wound; in this Case he shall not be Felo de se, because the Death has Relation to the original Act, and then he was not of found Memory. Co. 1 Rep.

It is the Opinion of many learned Men, that one who is of sound Memory, cannot be guilty of so much Malice to his own Person, as wilfully to kill himself; because naturally the Intentions of Men aim at what is good for themselves, and conduces to their Preservation. And therefore ’tis to be presumed, where a Man kills himself, he is not Compos Mentis.

Yet in some Cases a Man may be Felo de se involuntarily: If A. assault B. who falls down with his Sword drawn, and A. in Pursuit to kill him, by Haste falls upon the Sword, A. is Felo de se; but if B. were standing in his Defence, with his Sword drawn, A. runs upon it, and is killed, A. is not Felo de se. H. P. C. 28.

Conviction for this Offence must be either,

[note]

1. Before the Coroner, by the Oath of 12 Men, upon View of the Body, and this not traversable; or

2. If the Body cannot be found, before the Justices of Peace, in the County Court; but this may be traversed by Executor or Administrator of the Deceased.





If the Jury find that the Deceased wilfully murdered himself, he shall not have Christian Burial, and forfeits his Goods and Chattels to the King: But no Corruption of Blood, or Forfeiture of Lands, nor shall the Wife lose her Dower, because it is no Attainder in Deed. Leigh. Phil. Com, 103, 104.

But if the Jury find that he was Non Compos Mentis, that is, not of sound Memory, at the Time of committing the Fact which occasioned his Death, no Forfeiture.

MUTE

IS one who will not plead, or put himself upon Trial of his Country, or Jury, when arraigned upon an Indictment for any criminal Cause. This is two-fold:

[note]

1. When he answers not at all.

2. When he answers not directly, or impertinently, and not to the Purpose.

In the first Case, it shall be inquired, Whether he stand mute by Malice or by the Act of God? If by this latter Cause, then the Felony shall be inquired of, and whether he be the same Person, in like Manner as if he had pleaded not guilty. H. P. C. 225.

But if he be mute by Malice, or has cut out his Tongue, or will not answer directly, to the Indictment, he shall be put to his Penance, where he is arraigned for a capital Crime; which Penance is as follows,

The Judgment in this Case is, that the Man or Woman shall be remanded to the Prison, and laid there in some low and dark Room, where they shall lie naked on the bare Earth, without any Litter, Rushes, or other Cloathing, and without any Garment about them, but something to cover their privy Parts, and that they shall lie upon their Backs, their Heads uncovered and their Feet, and one Arm shall be drawn to one Quarter of the Room with a Cord, and the other Arm to another Quarter, and in the same Manner their Legs, and there shall be laid upon their Bodies Iron and Stone, so much as they may bear, and more; and the next Day following they shall have three Morsels of Barley Bread without any Drink, and the second Day they shall drink thrice of the Water





that is next to the House of the Prison (except running Water) without any Bread, and this shall be their Diet until they be dead. So as upon the Matter they shall die three Manner of Ways, by Weight, by Famine, and by Cold. And the Reason of this terrible Judgment is, because they refuse to stand to the Common Law of the Land. 2 Inst. 178, 179.

[note]

Persons standing mute on slight Suspicions, may be severely fined and imprisoned. 2 Haw. 330.

NUSANCE.

IN the Common Law this signifies an Offence, or Thing done, whereby another Man is annoyed in his free Lands or Tenements, and also the Assize or Writ lying for the same. Fitz. H. Nat. Brev. 183.

[note]

Nusances are of several Kinds, common, general, or special.

Erecting a Gate cross any Highway, tho’ easy to be opened, is a common Nusance, and any Man may break it or cut it. Cro. Car. 185.

Making Dams, though upon a Man's own Land, whereby Part of the Highway is overflowed; laying Logs, Rubbish, or Carrion; or Dying-Pits in the Public Rosds: These, and such like, are common Nusances, punishable by Indictment, and finable by the Justices of County Courts. Dalt. 107.

Felling Trees, or making Fences. See Tit. ROADS.

Special Nusances are such as annoy some particular Persons only, and here the Party grieved may have Remedy by Action at Common Law for his Damages: But no Action is maintainable for a common Nusance in the Highway, unless any particular Person receives a more particular Damage than any other thereby, and for this particular Injury he shall have a particular Action upon the Case. Co. 5. Rep.

Upon an Indictment for a Nusance, the Court ought not to admit the Defendant to a small Fine, till the Nusance is removed, and Affidavit thereof made, or the Removal certified by Two Justices.

Neither ought the Defendant to take any Exceptions to an Indictment, till he has pleaded to it. Nels. 426.





An Action upon the Case ought to be brought against One that makes a private Nusance, and he ought not to be indicted for it: For Indictments are in the King's Name, and are presomed to be preferred for Offences done against the Public, and not for private Injuries. Style 418.

Indictment for a Nusance.

THE Jurors for our our Lord the King, upon their Oath, present, That A. O. late of — in the County of — Yeoman, on the — Day of — in the — Year of the Reign of — and on divers other Days and Times, as well before as afterwards, with Force and Arms, at — in the said County [here set forth the Nusance] and the same (Nusance) so at aforesaid done, doth yet continue and suffer to remain; to the common Nusance of all the Lieges and Subjects of our said Lord the King, to the evil Example of all others in the like Case offending, and against the Peace of our said Lord the King, his Crown and Dignity.

OATHS.

AN Oath is an Affirmation, or Denial, of any Matter or Thing, before one or more who have Authority to administer the same, for the Advancement of Truth and Right, calling God to Witness, that the Testimony is ture, or that the Party will perform and keep what he promises and swears; and it is called a Corporal Oath, because he touches the Scripture with his Hand. Nels. 426.

[note]

If an Oath be taken before a Magistrate, who hath no Authority to administer it in that Cause, it is void.

The Forms of Oath to be administered and taken, in any Case treated of in this Book, may be seen under their proper Titles.

For the Reader's Satisfaction, I will here insert the Coronation Oath, taken by every King and Queen of England, on the Day of their Inauguration, and publicly administered to them in Presence of the Clergy, Nobility, and Gentry of the Realm, by the Archbishop of Canterbury, or other Bishop appointed to officiate that Day, viz.





WILL you solemly promise and swear, to govern the People of this Kingdom of England, and the Dominions thereto belonging, according to the Statutes in Parliament agreed on, and the Laws and Constitutions of the same?

[note]

King answers, I solemnly promise so to do.

WILL you, to your Power, cause Law and Justice in Mercy to be executed in all your Judgments?

K. I will.

WILL you, to the uttermost of your Power, maintain the Laws of God, the true Profession of the Gospel, and the Protestant Reformed Religion established by Law? And will you preserve unto the Bishops and Clergy of this Realm, and to the Churches committed to their Charge, all such Rights and Privileges as by Law do or shall appertain unto them, or any of them?

K. All this I promise to do.

Then the King, laying his Hand upon the Holy Gospels, says,

THE Things which I have here before promised, I will perform and keep. So help me God.

By the Common Law, all Officers in Church or State, Judges, Magistrates, and all Officers of Justice, are bound to take an Oath for the due Execution of their respective Offices.

[note]

If a Peer of the Realm is Witness in a Cause between Party and Party, he must be sworn to give Evidence, as other Persons. Style 434.

A Witness for a Person indicted of Treason, Felony, or other capital Offence, must not be examined upon his Oath, for the Prisoner against the King, but he may be examined without being sworn: He is suffered to give his Testimony for the Prisoner, against the King, without Oath, in Favour of Life. Style 433.

A Person produced as a Witness in any civil Cause, may have two Oaths administered to him, viz.





1. An Oath upon a Voire Dire, which is, to speak the Truth, in answering such Questions as the Court, or Judge, shall ask him concerning himself or other Things which are not Evidence in the Cause: This is to discover whether the Person, to whom it's administered, has any Interest in the Cause, on either Side; if it appears, that for some By-respect he is not indifferent, he may not be a Witness, otherwise, and if he be found wholly disinterested, then

[note]

2. To give his Testimony, as a Witness.

Onus Probandi is, where by Law, in some special Cases, the Proof of the Matter in Issue is cast upon either Party, Plaintiff or Defendant.

[note]

Perjury is, where a lawful Oath is administered to a Witness, by any who hath Authority so to do in that Cause wherein he is sworn, and the Person wilfully sweareth falsely, either by his own Act, or by Subornation of another, in a Thing material to the Issue, or Cause. Co. 3. Inst. 165.

[note]

This Offence is punishable by Indictment, either at Common Law, or upon the Statute 5 Eliz. cap. 9.

A false Oath in any Court of Record, or in any judicial Proceeding before a Judge of Record, tho’ not in Court, or tho’ not in any Thing material to the Issue, is Perjury at Common Law. 2 Roll. Abr. 257, 258.

It may be committed by swearing to a false Answer to a Bill in Chancery, or in Affidavits, or in Depositions upon Interrogatories before Commissioners. 4 Leon. 105.

If a Man swears the Truth, and doth not know it, he is guilty of Perjury. Het. 97.

Where the Offender is convicted upon an Indictment at Common Law, he shall be fined, and imprisoned: If upon the Statute, he forfeits 20 l. to the King and Party grieved, shall be imprisoned 6 Months without Bail, and disabled to be a Witness, ’till the Judgment is reversed; if he is not worth 20 l. he shall stand one Hour in the Pillory, with both his Ears nailed.

[note]

Subornation of Perjury is, where one Person hires or procures another wilfully to forswear himself.

[note]

This likewise is punishable by Indictment, at Common Law, or upon the Statute above-mentioned, which





Enacts, That whosoever shall procure another to commit corrupt Perjury in any Court of Record, or where the Matter shall be recorded, the Suborner being convicted, forfeits 401. to the King and Party grieved; and if not worth it, he shall be committed 6 Months without Bail, stand in the Pillory one Hour, and never more to be admitted as a Witness, ’till Judgment is reversed.

[note]

Justices of Peace, in Court, but not otherwise, may hear and determine these Offences: The Offenders are bailable ’till Conviction.

The Oath of Allegiance, by the 1 G. st. 2. c. 13.

I A. B. do sincerely promise and swear, that I will be faithful, and bear true Allegiance to his Majesty King George. So help me God.

[note]

The Oath of Supremacy, by the 1 G. st. 2. c. 13.

I A. B. do swear, that I do from my Heart abhor, detest, and abjure, as impious and heretical, that damnable Doctrine and Position, that Princes excommunicated or deprived by the Pope, or any Authority of the See of Rome, may be deposed or murdered by their Subjects, or any other whatsoever. And I do declare, that no foreign Prince, Person, Prelate, State, or Potentate, hath, or ought to have, any Jurisdiction, Power, Superiority, Pre-eminence, or Authority, ecclesiastical or spiritual, within this Realm.

[note]

So help me God.

The Oath of Adjuration, by the 6th Geo. III. Chap. 53.

I A. B. do truly and sincerely acknowledge, profess, testify, and declare, in my Conscience, before God and the World, that our Sovereign Lord King George is lawful and rightful King of this Realm, and all other his Majesty's Dominions thereunto belonging. And I do solemnly and sincerely declare, that I do believe in my Conscience, that not any of the Descendants of the Person who pretended to be Prince of Wales during the Life of the late King James II. and since his Decease pretended to be, and took upon himself, the Stile and Title of King of England, by the Name of James III. or of Scotland, by the Name of James VIII. or the Stile and Title of King of Great Britain, hath any Right or Title whatsoever to the Crown of this Realm, or any other the Dominions





thereunto belonging; and I do renounce, refuse, and abjure any Allegiance or Obedience to any of them. And I do swear that I will bear Faith and true Allegiance to his Majesty King George, and him will defend, to the utmost of my Power, against all traiterous Conspiracies and Attempts whatsoever, which shall be made against his Person, Crown, or Dignity. And I will do my utmost Endeavour to disclose and make known to his Majesty, and his Successors, all Treasons and traiterous Conspiracies which I shall know to be against him, or any of them. And I do faithfully promise, to the utmost of my Power, to support, maintain, and defend, the Succession of the Crown against the Descendants of the said James, and against all other Persons whatsoever; which Succession, by an Act, intituled, An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject, is and stands limited to the Princess Sophia, Electoress and Dutchess Dowager of Hanover and the Heirs of her Body, being Protestants. And all these Things I do plainly and sincerely acknowledge and swear, according to these express Words by me spoken, and according to the plain and common Sense and Understanding of the same Words, without any Equivocation, mental Evasion, or secret Reservation whatsoever. And I do make this Recognition, Acknowledgment, Abjuration, Renunciation, and Promise, heartily, willingly, and truly, upon the true Faith of a Christian.

[note]

So help me God.

The Declaration against Transubstantiation, by the 25 C. 2. c. 2. s. 9.

I A. B. do declare, that I do believe that there is not any Transubstantiation in the Sacrament of the Lord's Supper, or in the Elements of Bread and Wine, at or after the Consecration thereof, by any Person whatsoever.

[note]

The Declaration against Popery, by the 30 C. 2. st. 2. c. 1.

I A. B. do solemnly and sincerely, in the Presence of God, profess, testify, and declare, that I do believe, that in the Sacrament of the Lord's Supper there is not any Transubstantiation of the Elements of Bread and Wine into the Body and Blood of Christ, at or after the Consecration thereof, by any Person whatever; and that the Invocation,





or Adoration of the Virgin Mary, or any other Saint, and the Sacrifice of the Mass, as they are now used in the Church of Rome, are superstitious and idolatrous: And I do solemnly, in the Presence of God, profess, testify, and declare, That I do make this Declaration, and every Part thereof, in the plain and ordinary Sense of the Words read unto me, as they are commonly understood by English Protestants, without any Evasion, Equivocation, or mental Reservation whatsoever, and without any Dispensation already granted me for this Purpose by the Pope, or any other Authority or Person whatsoever, or without any Hope of any such Dispensation from any Person or Authority whatsoever, or without thinking that I am or can be acquitted before God or Man, or absolved of this Declaration, or any Part thereof, although the Pope, or any other Person or Persons, or Power whatsoever, shall dispense with or annul the same, or declare that it was null or void from the Beginning.

[note]

In all Cases wherein by any Act of Parliament an Oath shall be allowed or required, the solemn Affirmation of Quakers shall be allowed instead of such Oath; and that, altho’ no express Provision be made for that Purpose in such Act. 22 G. 2. c. 46.

And if any Person shall be lawfully convicted of wilful, false, and corrupt affirming or declaring any Matter or Thing, which if sworn in the usual Form would have amounted to wilful and corrupt Perjury, he shall suffer as in Cases of Perjury. 8 G. c. 6. s. 2.

But no Quaker shall by Virtue hereof be qualified or permitted to give Evidence in any criminal Cause, or serve on any Juries, or bear any Office or Place of Profit in the Government. 7 & 8 W. c. 34. s. 6.

The Quakers solemn Affirmation, instead of a Oath, as finally settled by the 8 G. c. 6. is as follows, viz.

I A. B. do solemnly, sincerely, and truly declare and affirm.

[note]

Instead of the Oaths of Allegiance and Supremacy, Quakers shall be allowed to make the following Declaration of Fidelity, by the 8 G. c. 6.

I A. B. do solemnly and sincerely promise and declare, that I will be true and faithful to King George; and do solemnly, sincerely, and truly profess, testify, and declare,





that I do from my Heart abhor, detest, and renounce, as impious and heretical, that wicked Doctrine and Position, that Princes excommunicated or deprived by the Pope, or any Authority of the See of Rome, may be deposed or murdered by their Subjects, or any other whatsoever. And I do declare, that no foreign Prince, Person, Prelate, State, or Potentate, hath, or ought to have, any Power, Jurisdiction, Superiority, Pre-eminence, or Authority, ecclesiastical or spiritual, within this Realm.

[note]

And by the same Act they shall be allowed to take the Effect of the Abjuration Oath, in these Words:

I A. B. do solemnly, sincerely, and truly acknowledge, profess, testify, and declare, that King George is lawful and rightful King of this Realm, and of all other his Dominions and Countries thereunto belonging; and I do solemnly and sincerely declare, that I do believe the Person pretended to be the Prince of Wales, during the Life of the late King James, and since his Decease, pretending to be, and taking upon himself the Stile and Title of King of England, by the Name of James the Third, or of Scotland, by the Name of James the Eighth, or the Stile and Title of King of Great-Britain, hath not any Right or Title whatsoever to the Crown of this Realm, nor any other the Dominions thereunto belonging; and I do renounce and refuse any Allegiance or Obedience to him. And I do solemnly promise, that I will be true and faithful, and bear true Allegiance to King George, and to him will be faithful against all traiterous Conspiracies and Attempts whatsoever, which shall be made against his Person, Crown, or Dignity. And I will do my best Endeavour to disclose and make known to King George, and his Successors, all Treasons and traiterous Conspiracies, which I shall know to be against him, or any of them. And I will be true and faithful to the Succession of the Crown against him the said James, and all other Persons whatsoever, as the same is and stands settled by an Act, intituled, An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown, to the late Queen Anne, and the Heirs of her Body, being Protestants; and as the same, by one other Act, intituled, An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject, is and stands settled and intailed, after the Decease of the said late Queen; and for Default of Issue of the said late





Queen, to the late Princess Sophia, Electoress and Dutchess Dowager of Hanover, and the Heirs of her Body, being Protestants. And all these Things I do plainly and sincerely acknowledge, promise, and declare, according to these express Words by me spoken, and according to the plain and common Sense and Understanding of the same Words, without any Equivocation, mental Evasion, or secret Reservation whatsoever. And I do make this Recognition, Acknowledgment, Renunciation, and Promise, heartily, willingly, and truly.

[note]

The Quakers Profession of their Belief, by the 1 W.

c. 18.

I A. B. profess Faith in God the Father, and in Jesus Christ, his eternal Son, the true God, and in the Holy Spirit, one God blessed for evermore; and do acknowledge the Holy Scriptures of the old and new Testament to be given by divine Inspiration.

[note]

A Jew is to be sworn on the old Testament, and Perjury upon the Statute may be assigned upon this Oath. 2 Keb. 314.

When Jews take the Oath of Abjuration, the Words [on the true Faith of a Christian] shall be omitted. 10 G. c. 4. s. 18.

ORDINARIES.

ALL Persons intending to keep Ordinaries, or Houses of Entertainment, must petition the County Court for a Licence, which, upon the Conveniency of the Place, and Ability of the Person, appearing to the Justices thereof, they may grant, the Person petitioning first entering into the following Bond, with Sureties, viz.

[note]

KNOW all Mem, by these Presents, that we, A. B. and C. D. are held and firmly bound unto the Governor and Commander in Chief in and over the Province of North-Carolina, in the Sum of — Pounds, Proclamation Money, to be paid to the said — or his Successors, Governors or Commanders in Chief for the Time being. To which Payment well and truly to be made, we bind ourselves, and every of us, our, and every of our Heirs, Executors,





or Administrators, jointly and severally, by these Presents. Sealed with our Seals, and dated this — Day of —

[note]

THE Condition of this Obligation is such, that whereas the above bounden A. B. hath obtained a Licence to keep an Ordinary at — in the County of — if therefore the said A. B. doth constantly find and provide in his or her said Ordinary, good, wholesome, and cleanly Lodging and Diet for Travellers, and Stabling, Fodder, Hay, Corn, Oats, or Pasturage, as the Season shall require, for their Horses, for and during the Term of one Year, or to the Court of said County next succeeding, between the First Day of March and the Tenth Day of June, from the — Day of — and shall not suffer or permit any unlawful Gaming in his or her House, nor on the Sabbath Day suffer any Person to tipple or drink any more than is necessary; then this Obligation to be void, otherwise to remain in full Force and Virtue. In Witness whereof, &c.

[note]

Which Bond may be sued, and the Penalty applied, one Half to the Profecntor, and the other Half to the Parish.

When such Bond shall be given, the Clerk shall prepare the Licence, and countersign the same, which shall be directed by a Person to be thereunto appointed by the Governor.

If the Governor sails to appoint such Person, the first Justice in Commission is to sign and direct the same; which Licence shall continue one Year, or to the next Court, to be held between the First Day of March and the Tenth Day of June; for which Licence Twenty Shillings shall be paid to the Governor, and to the Clerk Five Shillings.

No Person shall keep a Tippling House, or retail any Wine, Beer, Ale, Cyder, Brandy, Rum, or other Spirits, or any Mixture of such Liquors, without Licence, on Penalty of Ten Pounds for every Offence.

Merchants or others may retail any Spirits in any Quantity not less than a Quart, or Ale, Beer, and Cyder, in any Quantity not less than a Gallon, if such Liquors are not drank in their Houses, Stores, or on their Plantations.





All Persons to sell by sealed Measures, on Penalty of Ten Pounds.

Ordinary Keepers may sell in Bottles, Bowls, or Mugs, for the Quantity of Liquors they contain.

If any Ordinary Keeper shall suffer Drunkenness in his House on the Sabbath Day, or entertain Servants or Slaves, or common Sailors, such Ordinary Keeper may, by Order of Two Justices, be suspended.

Such Ordinary Keeper may be heard the next Court, and may he restored, by a new Licence.

If such Ordinary Keeper shall sell Liquors after Suspension, he shall be liable to the same Penalties as for selling without Licence.

County Courts, at the Court to be held between the First Day of March and the Tenth Day of June, annually (at which Court all Ordinary Licences are to be renewed) shall set the Rates and Prices to be paid at Ordinaries for Liquors, Diet, Lodging, Corn, Fodder, &c. on Penalty of Five Pounds for each Neglect. Ordinary Keepers to set up a Copy of such Rates in their Houses, on Penalty of Five Pounds.

If they sell for more than the Rates allow, they shall forfeit. Ten Shillings, recoverable by the Informer, to his own Use, by Warrant from a Justice.

No Ordinary Keepers shall sell Liquors to common Sailors without Leave of their Captain, on Penalty of losing the same; nor shall they sell Drink upon Credit to any Person for more than Five Pounds, on Penalty of losing the same, unless such Person shall sign a Book, in Acknowledgment.

All Public Ferry Keepers, where the Ferriage is above Four Pence for Man Horse, shall be obliged to furnish Travellers with Entertainment, and shall take out Licence for the same, on Penalty of Ten Pounds, to the Informer.

All Ordinary Keepers, within one Month after obtaining Licence, must set up Signs, with Inscriptions denoting the same to be an Ordinary, on Penalty of Forty Shillings for every Month such Sign shall not be set up.

All Penalties recoverable before any Court of Record, one Half to the Governor, the other Half to the Informer.





ORPHANS.

BY an Act of Assembly of this Province, the Fathers of all Children under the Age of 21 Years, and not married, shall have the Disposal of the Custody and Tuition of such Children, until they are of Age; but shall not dispose of them to Quakers, or Popish Recusants.

[note]

By the said Act, the County Courts have Power over all Orphans and their Estates, and may at any Time inquire into all Abuses of them and their Estates, and make such Orders therein for Relief, as they think best for the securing and better Management of the same.

The Grand Jury, at the Orphans Court, shall present the Names of all Orphan Children in their Parish which they shall know have not Guardians assigned them, and are not bound out to some Trade; and also all Mismanagements and Neglects of Guardians in their County.

The Court of every County shall hold an Orphans Court on the First Day of the Court after the First Day of January, where all Accounts of Orphans Estates shall be exhibited.

Where an Orphans Estate shall be of so small Value that no Person will maintain him or her for the Profits, such Orphan shall be bound out, every Male to some Tradesman, Merchant, or Mariner, and every Female to some suitable Employment, until her Age of Eighteen. Such Court may also bind out all free base-born Mulatto or Mustee Children, until the Age of Twenty One Years.

All Apprentices bound by the Court, must be by Indenture, in the Name of the Chairman of the Court, and his Successors, of the one Part, and the Master or Mistress of the other Part; which must be acknowledged in Court, and recorded, and a Counterpart kept in the Clerk's Office.

For further Particular relating to Orphans, see the Orphan Law, in the Provincial Laws.

PARDON.

IS the Forgiveness of any criminal Offence, committed against the King: It is either,

[note]



1. Of Course; as upon Conviction of Homicide by Misfortune, or in Self-Defence, &c. See Tit. HOMICIDE. In these Cases it is by the Law allowed, without Pleading.

2. Of Grace, general or special; and these must be pleaded by the Party who obtains Benefit thereby. This is a Royal Prerogative vested in the Crown, grantable by the King, in such capital Cases, and to such Persons, as he thinks fit; and it is either by Act of Parliament, or under the Great Seal. Co. Lit. 391.

He who claims the Benefit of a general Pardon, ought to plead the Statute by which such Pardon was granted, that the Court may judge whether his Offence be pardoned or not; and he must shew that he is comprised in the Pardon, and not excepted out of it.

[note]

A special Pardon must also be pleaded in Court, the Party who pleads it being upon his Knees all the Time his Pardon is reading, at the Middle of the Bar. Style 476.

One convicted of Manslaughter, must sue out his Pardon, or else be burnt in the Hand: For Manslaughter is Felony, for which he is by Law to be burnt in the Hand, except he be pardoned. Lut. 1009.

A Pardon not only takes away the Penalty or Punishment, but likewise the Guilt; so that a Man is restored to his Credit, and enabled to be a Witness, tho’ he has been convicted of Felony: But it seems otherwise upon a Conviction for Perjury, because it would be an Injury to all People in general, to make them subject to the Testimony of such a Person. 1 Vent. 349.

A Conviction of Felony, and burnt in the Hand, is in the Nature of a Pardon: For by this Punishment he is cleared of the Offence, and becomes a lawful Witness. Raym. 370.

By the Statute 2 & 3 Annæ, as soon as a Judge receives a Warrant under the Sign Manual of the King, for a Pardon to a Person convicted of any capital Offence, but reprieved from Execution, as one thought fit to serve the King in his Army or Navy, the Judge may direct his Warrant to the Sheriff or Gaoler, requiring the immediate Delivery of such Prisoner out of Custody, to such Officer under whom he shall be listed.





It has been formerly held, that the King could not pardon any Person convicted of wilful Murder; and Recourse has been had to the Mosaical Law, which says, Thou shalt take no Satisfaction for the Life of a Murderer, who is guilty of Death, he shall surely be put to Death. And we find a positive Law given by God to Noah, about 796 Years before the Mosaical Law: He who sheds Blood, by Man shall his Blood be shed. But latter Times have inclined to the better Opinion, viz. that this, and other Penal Laws given to the Jews, were obligatory to them only, and not to the Gentiles before the Time of our Saviour, nor to Christians since; and we find Instances of Dispensations from the Strictness of these Laws, even among the Jews themselves, to whom they were given not as natural, but judicial Laws, and therefore cannot be taken to be universally binding; and Christians never punished Offenders in several other Cases with the Penalties prescribed by those Laws: As where the Stealer of an Ox was to restore Five Oxen, and so in many other Cases.

It may often happen, that upon Confideration of the Person, Time, and Circumstances, a Pardon may be more effectual to attain the good Ends intended by Punishment, than a rigorous Execution might have done, viz. the Reformation of the Offender, as well as a living Example of Justice in Mercy: And in these Cases, the King is Supreme Judge.

PERJURY. See OATHS.

PICKPOCKET.

THIS is called Larceny, or stealing from the Person, without putting him in Fear, for it is done clandestinely and secretly, without his Knowledge; and it is either,

[note]

1. Capital, if the Thest be of more than the Value of 12 d. and the Offender shall have Judgment of Death, without Benefit of Clergy. 8 Eliz. cap. 4. and therefore not bailable: But to make this Crime capital, four Things are required;

1. It must be done clandestinely and secretly.





2. The Thief must have actual Possession of the Things taken or stolen.

3. It must be without putting in Fear.

4. Above the Value of 12 d.

2. If the Thing stolen be under the Value of 12 d. then ’tis Petty Larceny; and the Offender shall be whipped, and forfeits his Goods. H. P. C. 60.

In this Case, Bail is discretionary.

Justices of Peace are to take Cognizance of these Offences, and must proceed therein as by Law directed in other Felonies.

Warrant against a Pickpocket.

— County, ss.

To A. B. Constable, or any other lawful Officer.

WHEREAS C. D, of — has made Complaint before me, E. F. Esq; a Justice of Peace of the said County, that on the Morning of this present Day his Pocket was picked secretly and clandestinely, without his Knowledge, of certain Monies of the Value of — current Money of this Province, and one Watch in two Silver Cases, of the Value of Five Pounds, the Goods and Monies of the said C. D. and that he hath sufficient Cause to suspect H. I. of — to have feloniously taken the same: Therefore, in his Majesty's Name, I hereby command you forthwith to apprehend the said H. I. and to bring him before me, or some other Justice of this County, to answer the Premises, and to be examined concerning the same. Given under my Hand and Seal, this — Day of —

[note]PILLORY.

THIS is an infamous Punishment, introduced in England in the Saxon Times, for Offences not capital, but of a base or scandalous Nature, as Forgery, Perjury, Cheating, and the like; and it has been since appointed by several Statutes, and Acts of Assembly.

[note]

The Stocks was a Punishment anciently inflicted for petty Offences, and on disorderly or refractory Persons: ’Tis likewise a Place wherein the Constable may confine Delinquents, till he can procure Assistance to carry them before a Magistrate; but the Constable cannot commit any Person to Gaol, without lawful Warrant.





Escape out of the Stocks is Breach of Prison.

Whipping is by our Law appointed in divers Cases, as a Punishment for Breach of Penal Laws, where the Offender refuses to pay the Fine; as likewise for divers Offences committed by Servants, or by Negroes, Mulittoes, and Indians.

Justices of Peace should be well advised before they give Judgment in any of these Cases; and the best Way is, to follow the Acts of Assembly.

PIRACY.

THOUGH this is an Offence capital, whereof the Common Law does not take Notice, and therefore not within the Cognizance of Justices of Peace; yet I think it not impertinent to inform the Reader in the Nature of the Crime, as well as the Method of Punishment.

[note]

It is where Felony is committed by any of the King's Subjects, not upon the Land, or within the Realm, but upon the Seas: ’Tis not taken Notice of by the Common Law, and therefore triable by the Rules of the civil Law, or general Law of Nations, yet by the Statute 25 H. 8. cap. 15. it shall be tried according to the Course of the Common Law.

By the Statute 11 & 12 W. 3. ’tis Enacted, That all Piracies, Felonies, and Robberies, committed in any Place where the Admiral hath Jurisdiction, may be tried, at Sea or upon Land, by a Court of Vice-Admiralty, appointed by Commission under the Great Seal of England, or the Seal of the Admiralty.

[note]

Commissioners so appointed may commit Offenders to Prison, by Warrant under their Hands and Seals, upon Information made before them, upon Oath, which they may administer.

The Court must consist of seven Persons: If so many Commissioners cannot be had, then Three of them, whereof a Governor, Lieutenant Governor, or Councillor shall be one, may assemble Merchants, Factors, or Planters; Captains, Lieutenants, or Warrant-Officers of Ships of War; or Captains, Masters, or Mates, of Merchant Ships, to make up the Number.





These Perlons may issue Warrants to bring in the Party accused; may summon Witnesses, and examine them upon Oath.

When the Court is first assembled, the Commission shall be read, and the Court called, and proclaimed: Then the President first takes his Oath, and afterwards administers the same to the Rest of the Court.

Then the Prisoner shall appear, and the Clerk reads the Articles exhibited against him, wherein the particular Facts of Piracy, when, where, in what Manner, &c. shall be expressed: The Witnesses for and against the Prisoner are examined, upon Oath, and Judgment shall be given by Plurality of Votes, and Execution awarded thereupon, according to the civil Law.

The Person convicted loses his Life, Lands, Goods, and Chattels, as if attainted at Common Law (though there can be no Corruption of Blood because ’tis not Felony by that Law) and he shall be executed, by Warrant directed to a Provost Marshal, for that Purpose appointed by the President and major Part of the Court.

The Court appoints their Clerk, who is to enter the Proceedings; which, together with Copies of the Articles exhibited against the Prisoner, must be transmitted to the Admiralty in England.

By this Act, at first made temporary, but continued since, if any of the King's Subjects, by Commission from any foreign Prince or State, commit Acts of Hostility against any other of his Subjects, ’tis Piracy.

If a Master of a Ship, Seaman, or Mariner, betrays his Trust, turns Pirate, runs away with Ship, Goods, or Merchandize, or yields them to a Pirate; or brings Messages from a Pirate, to corrupt or seduce any Commander or Mariner to yield, or run away with Ship or Goods; or if any Seaman or Mariner lays violent Hands on his Commander or Master, to hinder him from defending his Ship; or confines the Master; or endeavours to make a Revolt or Mutiny in the Ship: The Offender in any of these Cases shall be adjudged and punished as a Pirate.

He that sets forth or fits out a Pirate Vessel, or doth aid, assist, maintain, procure, command, counsel, or advise any Person to commit Piracy, who doth it accordingly, is accessary to the Piracy; so is the Receiver or Concealor of a Pirate, knowing him to be so: Such





Accessaries are triable in like Manner as Principals, and upon Conviction shall be executed.

Clergy is not to be allowed upon any Conviction for Piracy, because it is not an Offence punishable at Common Law, but by the civil Law, which doth not allow Clergy in any Case. Moor. 756. Yelv. 135.

POOR. See CHURCHWARDENS.

POPERY.

FROM the first Settlement of Christianity in England, till Anno 1534, the Nation continued subject to the See of Rome in Matters ecclesiastical, and the Pope was universally acknowledged Supreme Head of the Church. So great and extensive was then his Authority, that considerable Sums of Money were annually drawn out of the Kingdom, and sent to Rome, for First Fruits and Tenths of Ecclesiastical Livings, Peter Pence, Investitures of vacant Bishopricks, and other Preferments in the Church, Appeals, and divers other Pretences, whereby a great Revenue was raised for the Pope's Use. All Churchmen were exempted from temporal Jurisdiction, and no Clergyman was punishable in the King's Courts, tho’ guilty of the greatest Crimes. The Laity, on the contrary, were subject to the Censures of Churchmen, who imposed upon them sometimes pecuniary Fines, sometimes corporal Penances and Punishments, for such Matters as by the Clergy, in their Discretion, were judged either indecent, immoral, or sinful; and every Person was obliged to be his own Accuser, by confessing his Sins to a Priest, under the Seal and Solemnity of a Sacrament, and thereupon to perform the Penance enjoined him by the Confessor, otherwise he was not to hope for Absolution or Forgiveness: And if a Layman was accused of Heresy, by which was meant the embracing and holding any Opinion concerning Matters of Faith, Belief, or Church-Government, contrary to the received Doctrines of those Times, he was thereupon tried, before certain Ecclesiastical Commissioners appointed by the Pope's Authority; and if by them found guilty, and pronounced an Heretick, his Sentence was, To be burnt





alive. These, and many other Prerogatives and Privileges, were claimed and enjoyed, for many Ages, by the Clergy, over the Persons of the Laity; and successive Popes endeavoured, from Time to Time, to extend and enlarge their Power, even to the deposing Kings, and absolving Subjects from their Oaths of Allegiance.

[note]

Some of the English Princes, sensible and weary of this Burthen upon themselves and their Subjects, attempted to assert their own Prerogative, and to rescue themselves from this foreign Yoke; but these were excommunicated by the Pope, and the whole Kingdom laid under an Interdict, which was in the Nature of a Prohibition, issued by the Pope, and directed to the Clergy of England, whereby they were restrained in the Exercise of their Function, and prohibited from solemnizing publicly any Parts of Divine Worship. So long as this continued, the Churches were shut up; no Divine Service was performed in them, or in any other Public Places; the Dead were buried without the Ceremonies of the Church, and the Public Profession of Christianity seemed lost throughout the Nation. The Clergy, then very powerful and rich, sided with the Pope, and in this State the Controversy stood some Years; till the Kings, finding themselves too weak, and unable to cope with the Power of the Church, were forced to submit, tho’ to the further lessening their own, and increasing the Pope's Authority, which by these Contests was more firmly established and extended, in Matters civil and well as ecclesiastical.

But Henry 8, a politic and magnanimous Prince, beloved and feared by his Neighbours, as well as his own Subjects, first put a Period to the Papal Power in England. This King, intending to procure a Divorce from his Queen Catherine, the Relict of his elder Brother, Prince Arthur, with whom he had cohabited many Years, sollicited the Court of Rome for that Purpose: But after several Years Expectation, finding nothing but Delays and Difficulties from thence, founded upon the political Views and private Interests of that Court, which the King well perceived, he determined, by the Help of his Parliament, to assert his own Power and Right of administering Justice within his own Kingdom, in all Cases. With this View he caused the Case of his Marriage with his Brother's Wife to be stated, and proposed to the most learned and famous Divines and





Lawyers, both in his own and foreign Universities and Kingdoms, Persons of greatest Repute for Knowledge and Learning, in all Parts of the Christian World, from whom he received this Opinion, under their Hands, viz. ‘That such Marriage is unlawful, and prohibited by all Laws Divine and Human, and therefore the Parties so married ought to be divorced and separated.’ This was by the King communicated to his Parliament, and by them approved; and hereupon certain of the Bishops, Nobility, and Judges, were, by the King's Commission, appointed to hear and determine the Cause. These Commissioners proceeded, and upon hearing the Parties, and Examination of Witnesses, decreed the Marriage null and void, and thereupon the King was divorced. The Queen would by no Means submit to this Sentence, but appealed to the Pope, who was highly offended and incensed against the King, for his Contumacy and Disobedience, as he termed it, threatening the King and Realm with the severest Punishments, which he afterwards endeavoured to put in Practice. And to prevent the Effect of these Threats, the first Act of Parliament, declaring the King to be Supreme Head of the Church, was pafled 26 H. 8. which was soon after enforced by other Acts, whereby the Power and Authority of the See of Rome was, in few Years, totally suppressed in England.

Upon the Reformation of the Church, begun in the Reign of his Son Edward 6. and compleated by his Daughter Queen Elizabeth, these Laws for abrogating and annulling the Popes Authority were confirmed and enlarged by others then made to the same Effect.

But because frequent Attempts have been since made by Papists to revive this Power, tho’ with the Destruction of the King and Kingdom, succeeding Times have found it necessary to add other Statutes to keep them in Subjection, by laying such Persons under great Incapacities and Disabilities, as well as making them liable to severe Penalties, if they offend.

The Laws and Statutes that have been made from Time to Time in England against this bloody and idolatrous Religion, are many, and severe; and if we consider the many Attempts that have been made, since the Reformation, to subdue the Protestants again to the Popish Supremacy, particularly the Gunpowder Plot in King James the First's Time; the Attempt of that





weak and wicked Prince King James the Second, and the Rebellions in 1715, and 1745, we shall have abundant Reason to think, tho’ they are severe, yet that they are absolutely necessary to keep these restless and bloody Bigots in due Subjection.

The Statutes made against Popery are too numerous to insert here, but for the Reader's Satisfaction, I shall insert a few of the most material.

If any Person shall put in Practice to reconcile any Subjects to Popery, or if any Person shall be willingly so reconciled, he, his Aiders and Maintainers, shall be guilty of High Treason. The Trial to be at the Assizes, or in the King's Bench. 3 Jac. c. 4. s. 22, 23, 25.

[note]

No Popish Recusant Convict shall come into the Court, or House, where the King or his Heir apparent shall be (unless commanded by the King or Council) on Pain of 100 l. Half to the King, and Half to him who shall discover and sue for the same, in any Court of Record. 3 Jac. c. 5. s. 2.

And if any Member of either House of Parliament, not having taken the Oaths of Allegiance and Supremacy, and made and subscribed the Declaration against Popery, shall come into the King's Presence, or the Court or House where he is (without Licence from six of the Privy Council) he shall suffer as a Popish Recusant Convict, and shall be disabled to hold any Office, or to vote in either House of Parliament, or to be Plaintiff, Guardian, Executor, Administrator, or to take any Legacy or Gift, and shall forfeit 500 l. to to him who shall sue. 30 C. 2. st. 2. c. 1.

If any Person educated in the Popish Religion, or professing the same, shall not within six Months after he shall be 18 Years of Age, take the Oaths of Allegiance and Supremacy, and subscribe the Declaration of the 30 C. 2. in the Chancery, King's Bench, or Quarter Sessions, he shall (in Respect of himself, but not of his Heirs) be incapable to inherit or take any Lands, by Descent, Devise, or Limitation; but the next of Kin, being a Protestant, shall have the same. 11 & 12 W. c. 4. s. 4.

Every Papist, or Person making Profession of the Popish Religion, shall be disabled to purchase any Lands, or Profits out of the same, in his own Name, or in the





Name of any other to his Use, or in Trust for him; but the same shall be void. 11 & 12 W. c. 4. s. 4.

If any Papist shall keep School, or take upon him the Education, or Government, or Boarding of Youth, he shall be adjudged to perpetual Imprisonment. 11 & 12 W. c. 4. s. 3, 5.

By the Toleration Act, if any Person, being required by a Justice of the Peace, shall refuse to take the Oaths of Allegiance and Supremacy, and to make and subscribe the Declaration against Popery of the 30 C. 2. he shall be committed by the said Justice to Prison; and at the next Session, if he shall again refuse to make and subscribe the said Declaration, he shall be deemed and suffer as a Popish Recusant Convict. s. 12.

A Recusant conforming shall be discharged of the Penalties which he might otherwise sustain in Respect of his Recusancy. 1 J. c. 4. s. 2.

And by the 11 G. 2. c. 17. Papists conforming to the Protestant Religion, and taking the Oaths, and subscribing the Declaration of the 30 C. 2. in the Chancery, King's Bench, or Quarter Sessions (to be there recorded) shall have their Estates freed of the Disabilities incurred before such conforming. s. 1, 2, 3, 4.

And a Recusant convicted having conformed, shall at least once a Year receive the Sacrament in the Parish Church, on Pain of forfeiting for the first Year 20 l. for the second 40 l. and for every Year after 60 l. Half to the King, and Half to him who shall sue in the Courts at Westminster, or at the Assizes or Sessions. 3 J. c. 4. s. 2, 3.

POSSE COMITATUS.

IS the Power of the County, consisting of all Male Persons therein, whether Freemen or Servants, above the Age of 15 Years, and able to travel. Lamb. 309.

[note]

But Clergymen, and sick, lame, or impotent Persons, are excepted.

Every Justice of Peace, upon just Cause, may raise this Power, or such a Number as in his Discretion shall appear necessary, and may likewise direct after what Manner they shall be armed: The Persons whose Assistance





he shall require, or command, in the King's Name, must obey, upon Pain of Imprisonment, and Fine to the King. Dalt. 453.

[note]

One Justice may take the Power of his County to suppress Rioters, without staying for the coming of another Justice, or the Sheriff.

So likewise in forcible Entry or Detainer, and Force found either by the Justice's own View, or by Inquisition taken before him. 14 H. 7. cap. 8.

And also to pursue and apprehend Traitors, Murderers, Robbers, and other Felons; all Breakers or Disturbers of the Peace, and all Persons against whom Surety of the Peace shall be granted. Dalt. 454.

The Sheriff or Under-Sheriff may, by the Common Law, take the Power of his County to execute any of the King's Writs, or Process, because it is the King's Command. West. 1. 17. & W. 3. 39.

So he may to execute a Justice's Precept or Warrant, to him directed.

And without any Writ or Precept, the Sheriff, by Virtue of his Office, as Conservator of the Peace, may raise the Power of his County to preserve the Peace, if broken in his View or Presence, and to apprehend the Breakers, and all Rioters, Traitors, and Felons. Dalt. 454.

A Constable may take the Aid of his Neighbours, or other Persons present, to apprehend a Felon, or one who has dangerously hurt another.

As also to execute a Justice's Warrant, or to keep the Peace, if broken or disturbed in his Presence, and to apprehend the Offenders, and carry them before a Justice.

By the Common Law, every Judge of Record, Sherrif, Coroner, Constable, or other Officer, to whose Office belongs the Conservation of the Peace, may command and take the Aid and Force of others to pacify Riots or Affrays, and to arrest all such who in their Presence, and within their Jurisdiction, shall endeavour to break the Peace, by Word or Deed. 28 Ed. 3. cap. 8.

[note]



PREMUNIRE.

IS either the Writ so called, or the Offence for which such Writ is granted. Co. Lit. l. 2. s. 199.

[note]

If a Man brought Suit in any spiritual Court, for a temporal Matter cognizable in the Courts of Common Law, he incurred a Premunire. 3 Inst. 218.

And by some Statutes, this Offence is laid upon other Persons, viz.

Those who deny the King's Supremacy. 2d Offence. 1 El. cap. 1.

Those who affirm the Authority of the Pope, or refuse to take the Oath of Supremacy. 3 El. cap. 1.

Those who speak seditiously of the Inheritance of the Crown, or affirm the King to be an Heretick. 13 El. cap. 1.

The Judgment for this Offence is,

That he be out of the King's Protection; that he forfeit his Lands, Goods, and Chattels, to the King, and his Body to remain in Prison during the King's Pleasure. 16 R. 2. cap. 5.

[note]

But this Offence has rarely happened, of late Years especially, so that this Judgment is now almost anti-quated.

It was formerly so odious, that a Person attainted of Premunire might be killed by any one, without Punishment; but by the Statute 5 El. cap. 1. ’tis made Felony to kill such a Person.

PROCESS.

THIS in its general Signification comprehends all the Proceedings, original or judicial, in any Matter criminal or civil, depending in the King's Courts, or before his Judges: Sometimes the original Writ only, by which a Man is called to answer in Court, is termed the Process, because it is the Beginning, by which the Rest of the Business is directed; but usually it is understood to mean the Proceedings after an Indictment is found, or the Party otherwise convicted: And it is always in the Name of the King, derected to the Sheriff. F. H. N. B. & Br. Abrid.

[note]



It differs from a Precept or Warrant issued by a Justice of Peace; for this is only to cause the Party to be attached or apprehended, and to be examined concerning the Premises, before any Indictment or Conviction: And this may be made either in the Name of the King, or of the Justice. Co. 8 Rep.

All legal Proceedings ought to take Commencement either by original Writ, Indictment, or Information. Style 478.

Upon Warrants issued by a Justice of Peace for Debt, Trespass, Breach of Penal Laws, or any other Matter legally cognizable and determinable before him, after Conviction of the Offender, either by Confession or Proof, he may issne subsequent Process of Execution or Distress, as by Law in such respective Case directed: This ought to be in the King's Name, witnessed by the Justice.

In all Cases, where by Law Power is given to Justices of Peace, out of Sessions, to hear and determine Complaints or Offences, they may grant their Warrant against the Party, to appear before them, and thereupon may proceed to hear and determine the Complaint or Offence, without any Indictment, or other Process. Dalt. 529.

RAPE.

FORCIBLY to ravish a Woman, so as to have carnal Knowledge of her Body, she never consenting either before or after the Fact, is Felony at Common Law; and by several subsequent Acts of Parliament, enforced by the Statute 18 El. cap. 6. if she is under ten Years of Age, tho’ she doth consent, ’tis a Rape; and if above ten, then not consenting at first, tho’ she consent afterwards, ’tis likewise a Rape.

[note]

And if a Woman consent for Fear of Death, ’tis a Rape, because Consent ought to be free and voluntary. Dalt. 392.

The Woman injured ought forthwith to complain to a Magistrate, or levy Hue and Cry against the Ravisher: By the Common Law, she ought to complain within 40 Days; but it should rather be immediately, because concealing it implies Consent before the Fact. In Scotland,





she must complain the same Day or Night in which she was ravished.

[note]

In an Indictment of Rape, no Time of Prosecution is limited: But in an Appeal, if the Woman does not prosecute within convenient Time, she shall be barred. Dyer 304.

Tho’ she will not prosecute, yet the Husband may; and if she have none, then the Father, or next of Kin, may appeal. Nels. 482.

[note]

All who are present, aiding, assisting, or procuring another to commit a Rape, are principal Felons. 12 Rep. 37.

Anciently this Crime was punishable by Loss of Eyes and Genitals: But by the Statute West. 2. cap. 34. and other Statutes made since, confirmed and explained by 18 El. cap. 6. the Offender shall suffer Death as a Felon, without Benefit of Clergy.

[note]

Upon Complaint made to a Justice of Peace, upon Oath, he may issue his Warrant to apprehend the Offender, charged by Oath of the Party injured, and thereupon proceed as in other Felonies.

If Bail is allowed, it ought to be upon sufficient Reasons, appearing from the Nature of the Fact, Persons, and Circumstances.

[note]

Taking away, by Force or Fraud, any Woman, Maid, Wife, or Widow, who has Substance in Lands, or Goods and Chattels, or is an Heiress apparent, and marrying or defiling her against her Will, is Felony, without Clergy. 39 El. cap. 9.

[note]

The Crime is not mitigated, tho’ the Woman consensents to the Marriage after it has been consummated. 3 H. 7. cap. 2.

Procurers, Abettors, and wilful Receivers, are Accessaries before the Fact, and punishable as principal Felons.

Not only the taking or carrying away must be by Force, but likewise the marrying or defiling: And this Act does not extend to a Person who takes a Woman whom he claims as his Ward, or Bond-Woman. Dalt. 392.

By the Statute 4 & 5 Phil. & Mar. cap. 8. if any Person takes away a Female under 16 Years, without Consent of her Father or Mother, or Guardian, to whom Tuition was devised by her Father, and out of their Custody, the Offender shall be imprisoned Two





Years, without Bail, or pay a Fine: But if he desiles or marries her, without Consent of her Parent or Guardian, Five Years Imprisonment, or Fine.

[note]

Indictment for a Rape.

THE Jurors for our Lord the King, upon their Oath, present, that A. O. late of — in the County of — Yeoman, not having God before his Eyes, but being moved and seduced by the Instigation of the Devil, on the — Day of — in the — Year of the Reign of — with Force and Arms, at — in the County aforesaid, in and upon one A. I. Spinster, in the Peace of God, and of our said Lord the King, then and there being, violently and feloniously did make an Assault, and her the said A. I. against the Will of her the said A. I. then and there feloniously did ravish and carnally know, against the Peace of our said Lord the King, and against the Form of the Statute in such Case made and provided.

[note]RECOGNIZANCE

IS a Bond or Obligation of Record, testifying that the Party oweth to the King a certain Sum, upon Non-Performance or Breach of the Condition therein mentioned.

[note]

It becomes a Record, as soon as taken or acknowledged before a Justice of Peace, or Judge of Record, and entered in his Book: And upon Breach of the Condition, an Indictment will not lie, but a Scire Facias. Raym. 196.

Justices of Peace are by Law enabled and required to take Recognizances, in certain Cases: But in Matters relating to the Peace, or good Behaviour, every Justice, by his Commission and Office, is enabled to bind the Offender; and where he has Authority to cause a Person to do any Thing, he may bind the Party, by requiring him to enter into Recognizance, and to find Sureties for the Performance, and upon Refusal may commit him. Dalt. 437.

[note]

A Justice of Peace can take no Recognizance, but only for such Matters as concern his Office; and every such Obligation must be made to our Sovereign Lord the King, and so expressed: Otherwise, or if taken





where the Justice has no Jurisdiction, ’tis void, and the Justice punishable by Imprisonment or Fine. Ib. 439.

The Forms of Recognizances, and where to be taken by Justices of Peace, out of Sessions, appears under each respective Title in this Book.

In every Recognizance, the Name, Place of Abode, and Trade or calling of the Parties bound, both Principal and Sureties, must be punctually expressed; and the Principal is bound in double the Sum for which each Surety is bound.

It may be taken with or without Sureties, at the Discretion of the Justice before whom ’tis acknowledged: And after it is taken, if he is deceived in the Ability of the Sureties, or if they are likely to become insolvent, he may compel the Party bound to put in more, or commit him.

But this is to be understood where the Recognizance is taken by Virtue of his Office, and not upon a Supplicavit; for in this Case, he must require and take very sufficient Suretics.

In all Cases where Power is given to a Justice of Peace to take Bond of any Person, or to take Suretics for any Matter or Cause, he may take a Recognizance.

When it is made up, the Justice reads the Condition to the Parties bound, calling them by their Names, viz.

YOU A. B. of — C. D. of — E. F. &c. acknowledge to owe unto our Sovereign Lord the King, &c.

Then the Justice subscribes his Name.

Aknowledged before me,

G. W.

But the Parties bound need not set their Names to it.

A married Woman, or an Infant under the Age of 21 Years, may not be personally bound: They must find Suretics, or be committed. Dalt.

It hath been held a great Misdemeanor in a Justice of Peace, to entice an Infant to enter into Recognizance, knowing him to be an Infant: One Hickes was fined 100l. and committed for this Offence. Moor 555.

All Justices of the Peace should keep a Book, wherein they should enter all Recognizances by them taken,





and make a summary Record of the Whole, that is, the Names of the Cognizors, or Parties bound, the Time and Place of Appearance, and the Cause; and then return the original Recognizance to the Court where the Parties are bound to appear: And this must be done, notwithstanding the Death of the King, or of the Cognizor, or of the Party at whose Suit they are taken.

If the Sureties die, the Recognizance is good against their Executors; but if forfeited, the Justices can award no Process upon it, because these Records must be certified into a Superior Court.

Whatever is a Breach of the Peace is a Forfeiture of the Recognizance, if it be taken for the Peace, or good Behaviour: But opprobrious or affronting Words and Gestures are not a Breach, so as to make a Man forfeit his Recognizance; for though such Words or Gestures may be Provocations to break the Peace, yet they do not immediately tend to it, as assaulting and threatening do. 4 Inst. 180, 181.

If the Recognizance is not forfeited, ’tis discharged by Demise of the King, or Death of the Cognizor; so likewise by Release of the Party at whose Suit it was taken for the Peace or good Behaviour, whether such Release be made by the Party himself, or before a Justice, and by him certified under the Recognizance. See Tit. BEHAVIOUR.

RENT

FOR all Rent in Arrear, the Landlord may distrain the Goods and Chattels of the Tenant, or any other Goods found on the Premises.

[note]

The Custom of distraining for Rent in this Country has been, for the Landlord to make out his Account against the Tenant for the Rent due, at the Foot of which to give a Warrant to the Sheriff, Constable, or any other Officer, to levy of the Goods and Chattels of the Tenant sufficient to satisfy the Rent, and Costs of Distress.

[note]

Before the Statute of 2 W. c. 5. Distress for Rent could not be sold, but was to be detained till Payment of the Rent. But that Statute Enacts, That whereas





the most ordinary and ready Way for Recovery of Arrears of Rent is by Distress, yet such Distresses not being to be sold, but only detained as Pledges for enforcing the Payment of such Rent, the Persons distraining having little Benefit thereby; therefore from henceforth, where any Goods shall be distrained for Rent reserved and due upon any Demise, Lease, or Contract whatsoever, and the Tenant, or Owner of the Goods distrained, shall not within Five Days next after such Distress taken, and Notice thereof (with the Cause of such taking) left at the chief Mansion House; or other mist notorious Place on the Premises, replevy the same; in such Case the Person distraining shall, with the Sheriff or Under-Sheriff of the County, or with the Constable of the Hundred, Parish, or Place, where such Distress shall be taken, cause the Goods and Chattels so distrained to be appraised by two sworn Appraisers (whom such Sheriff, Under-Sheriff, or Constable, shall swear) to appraise the same truly, according to the best of their Understandings: And after such Appraisement, shall sell the same for the best Price can be gotten for them, for Satisfaction of the Rent, and Charges of the Distress, Appraisement, and Sale; leaving the Overplus (if any) with the Sheriff, Under-Sheriff, or Constable, for the Owner's Use.

Where any Goods or Chattels, fraudulently or clandestinely conveyed or carried away, shall be put, placed, or kept in any House, Barn, Stable, Outhouse, Yard, Close, or Place, locked up, fastened, or otherwise secured, so as to prevent such Goods or Chattels from being taken and seized as a Distress for Arrears of Rent; it shall be lawful for the Landlord, or his Steward, Bailiff, Receiver, or other Person or Persons impowered, to take and seize, as a Distress for Rent, such Goods and Chattels (first calling to his Assistance the Constable, Headborough, Borsholder, or other Peace Officer of the Hundred, District, or Place, where the same shall be suspected to be concealed, and in Case of a Dwelling-House, Oath being also first made before a Justice of the Peace, of a reasonable Ground to suspect that such Goods or Chattels are therein). In the Day Time to break open and enter into such House, Barn, Stable, Outhouse, Yard, Close, and Place; and to take and seize such Goods and Chattels for the said Arrears of Rent, as he might have done if they had been in any open Place. 11 G. 2. c. 19. s. 7.

[note]



Distress for Rent must be of a Thing, whereof a valuable Property is in Somebody; and therefore Dogs, Bucks, Does, Conies, and the like, that are feræ naturæ, cannot be distrained. 1 Inst. 47.

[note]

Altho’ it be of valuable Property, as a Horse; yet when a Man or Woman is riding on him, or an Axe in a Man's Hand cutting of Wood, and the like, they are for that Time privileged, and cannot be distrained. 1 Inst. 47.

And it hath been held, that Horses joined to a Cart, with a Man upon it, cannot be distrained for Rent; but both Cart and Horses may, if the Man be not upon the Cart. 1 Vent. 36.

Valuable Things shall not be distrained for Rent, for Benefit and Maintenance of Trades, which by Consequent are for the Commonwealth, and are there by Authority of Law: As a Horse in a Smith's Shop shall not be distrained for the Rent issuing out of the shop, nor an Horse in a Hostry, nor the Materials in a Weaver's Shop for making of Cloth, nor Cloth or Garments in a Taylor's Shop, nor Sacks of Corn or Meal in a Mill, nor any Thing distrained for Damage feasant, for it is in Custody of the Law; and the like. 1 Inst. 47.

Beasts belonging to the Plough shall not be distrained (which is the ancient Common Law of England, for no Man shall be distrained by the Utensils or Instruments of his Trade or Profession, as the Axe of the Carpenter, or the Books of a Scholar) while Goods, or other Beasts, may be distrained. 1 Inst. 47.

Where a Stranger's Beasts escape into the Land, they may be distrained for Rent, tho’ they have not been levant and couchant (that is, tho’ they have not been in the Ground for a good Space of Time, or so long as to have lain down or rose up again to feed) provided they are Trespassers: But if the Tenant of the Land is in Default, in not repairing his Fences, whereby the Beasts came into the Land, the Lessor cannot distrain such Beasts, tho’ they have been levant and couchant, unless he have caused Notice to be given to the Owner, and the Owner suffers them to remain there afterwards. Lutw. 364.

By 11 G. 2. c. 19. any Person distraining may impound, or otherwise secure the Distress, of what Kind soever it be, in such Place, or on such Part of the Premises,





as shall be most convenient; and may appraise, and sell the same, as any Person before might have done off the Premises. s. 10.

[note]

Cattle distrained may not be worked or used, unless for the Owner's Benefit, as a Cow milked, or the like; much less may they be abused or hurt. Cro. Jac. 148.

[note]

And it hath been said in this Case, that even a Cow may not be milked; for tho’ the Cow be better for this, yet he who took the Distress ought not to do Good to the Owner without his Consent, and perhaps the Owner would have come before any Damage came by this to the Cow; and if it perish by this, yet he who took the Distress may distrain again. 2 Bac. Abr. 112.

So if the Distress be lost by the Act of God; as if the Distress dies in the Pound, without any Default in the Distrainer: In such Case, he who made the Distress may distrain again. 1 Salk. 248.

It is the Distrainer's own Fault, if he puts the Distress in a Pound which will nor hold it, but he cannot justify the tying of Cattle in the Pound; and if he ties a Beast, and it is strangled, he must pay Damages. 1 Salk. 248.

All Distresses may be replevied, by the Tenant's giving Bond with Security to the Officer who makes the Distress, in double the Value of the Goods distrained, to return the same, or pay the Rent, in Case he shall be cast in his Writ of Replevin.

[note]

If any Tenant for Life or Years, or other Person who shall come into Possession by, from, or under him, shall wilfully hold over any Lands, after the Determination of such Term, and after Demand made, and Notice in Writing given for delivering the Possession thereof; he shall, for the Time that he shall so hold over, pay double the yearly Value thereof, to be recovered by Action of Debt, in any Court of Record. 4 G. 2. c. 28. s. 1.

[note]

If any Tenant shall give Notice of his Intention to quit the Premises, at a Time mentioned in such Notice, and shall not accordingly deliver up the Possession thereof at the Time, he shall from thenceforth pay double Rent, to be recovered in like Manner as the single Rent. 11 G. 2. c. 19. s. 18.

[note]



Notice to the Tenant of his Goods being distrained.

A. B.

TAKE Notice, that by the Authority, and on the Behalf of your Landlord, A. L. I have this — Day of — in the Year of our Lord — distrained the several Goods and Chattels specified in the Schedule hereunto annexed, in your Houses, Outhouses, and Grounds, at — for — Pounds Arrear of Rent due to him the said A. L. And if you shall not pay the said Rent, so due and in Arrear as aforesaid, or replevy the said Goods and Chattels, I shall, after the Expiration of Five Days from the Date hereof, cause the said Goods and Chattels to be appraised and sold, according to the Statute in that Case made and provided. Given under my Hand, the Day and Year first above written. A. D.

[note]

To this Notice, a Schedule or Inventory of the Goods distrained should be annexed, and a Copy of the same delivered to the Tenant, or left at his Dwelling-House.

Appraisers Oath.

YOU, and each of you, shall well and truly appraise the Goods and Chattels mentioned in this Inventory, according to the best of your Understandings.

[note]

So help you God.

Form of the Appraisement.

THE Appraisement may be in the Form of the Inventory, specifying the Particulars, and their respective Valuations. And then add at the End,

[note]

Appraised by us, this — Day of — in the Year —

A. P. B. P. } Sworn Appraisers.

RESTITUTION.

THIS is of several Kinds: A Man may have a Writ of Restitution to be restored to the Possession of a Freehold, or Place of Profit, or to an Office of Dignity or Public Trust, from which he is illegally moved, and in divers other Cases; but this Writ is not





properly grantable, except only in such Cases where the Party grieved cannot have Remedy in the ordinary Course of Law. Style 547.

[note]

If Goods are stolen, and not waived in Flight, or seized by a proper Officer, there the Party may take his Goods again, tho’ he doth not prosecute; but if the Goods are waived or seized, the Party shall have no Restitution, till the Offender is convicted upon his Prosecution, and then he shall recover no more than what is mentioned in the Indictment, tho’ other Goods were stolen at the same Time: The Reason is, because by such Omission the Offender might have escaped Punishment.

But if the Criminal is convicted, at the Prosecution of the Party who lost the Goods, he shall have Restitution, tho’ they were sold in open Market; Because this tends to the Advancement of Justice, and to make Men vigilant in prosecuting Offenders; and it will discourage Persons from buying Goods for a small Value, tho’ in a Shop, or open Market, of such whom they ought reasonably to suspect that they did not come by them honestly. Co. Mag. Char. 714.

And if the Party who so bought stolen Goods, upon a Writ of Restitution brought by the Owner, pleads, that he bought them in Market-Overt; upon a Demurrer to such Plea, the Plaintiff will have Judgment. 1 And. 344.

But if a Felon steals Goods, and afterwards waives them, and escapes, and it is not known who he was, the Owner cannot have Restitution, because the Felon cannot be indicted or attainted. Moor 360.

RIOT.

IF Three or more Persons meet, with Intent to do any unlawful Act, this is an unlawful Assembly; if they proceed to effect such Intent, ’tis a Rout; and if they do execute it with Force, ’tis a Riot. Dalt. 321.

[note]

If they assemble peaceably, and afterwards do some riotous Act, this is a Riot: For the Act shall have Relation to their assembling together, so far as to construe it to be with a riotous intent, altho’ it did not appear so at the first, because the Intentions of Men are best interpreted by their Actions. Style 558.





Four Things are here to be considered:

1. The Number of Persons met.

2. The Intent.

3. The Act.

4. The Manner and Circumstances of doing it.

1. The Number; this must be Three, or more, otherwise ’tis no Riot, Rout, or unlawful Assembly.

[note]

2. The Intent; if they met with Design to break or disturb the Peace, or to offer Violence to the Person, Possession, or Goods of another, and then quarrel, or make an Affray, or commit any Outrage, this is a Riot in those who came with such Intent.

[note]

But if the Meeting was accidental, or at Public Places, on a Court Day, or at Public Elections, Musters, &c. or where Men meet at lawful Sports, as hunting, racing, shooting, dancing, or the like Diversions and Pastimes, which are not evil in themselves, nor prohibited by Law, and a Quarrel happens unexpectedly, this is no Riot, but a sudden Affray. Co. 11, 87.

3. The Act must be unlawful in itself, and committed with Force and Violence; otherwise ’tis not a Riot.

[note]

Every Man may lawfully assemble his Friends and Neighbours, to assist him in defending his House or Possessions from Injury and Violence; but not to prevent a Beating threatened to his Person. H. P. C. 137.

So he may to remove a Nusance; but this must be done without Threats, or Disturbance of the Peace. Dalt. 304.

4. The Manner and Circumstances; these must be such as apparently shew a riotous Intent, by using Threats, turbulent Behaviour, Shew of Arms or Weapons, or by actual Force and Violence.

[note]

If a Man comes to Church, Court-House, or other Place of Public Assembly, attended with an unusual Number of Servants or People, and armed with offensive Weapons; tho’ he have no Intention to make a Riot, or to do Mischief, yet this is a Rout, by the Manner of his Appearance, being needless, disordered, to the Terror of the King's Subjects, and against the Law. 2 Edw. 3. cap. 3.

Where Three or more enter into the Lands or Possession of another, with Force, this is a Riot, tho’ the Entry be upon good Title. Crompt. 64.





Every Justice of Peace who has Notice of a Riot, intended or committed, must forthwith endeavour to prevent or suppress it; and for this Purpose he ought to send immediate Notice to the next Justice, and to the Sheriff or Under-Sheriff, and to require their Assistance: In the mean Time, he may raise such Power of his County as to him appears necessary, and must repair to the Place where the Rioters are assembled, to suppress the Riot, apprehend the Offenders, and compel them to find Sureties for their good Behaviour, or commit them; and he may seize their Arms, for the King's Use: This he may do, by Virtue of his Office, without staying for the coming of another Justice, or the Sheriff. Dalt. 195.

[note]

If he sees a Riot, he may record it, upon his own View, and certify the Record to the next Superior Court: If the Riot is recorded by him as a Judge, sitting in Court, it will amount to a Conviction of the Offender, whereupon he shall be fined; but otherwise, the Record of a Riot, by one Justice, upon his own View, may be traversed by the Defendant.

[note]

After the Riot is over, he can only proceed against Offenders as Trespassers against the Peace, by sending his Warrant, and requiring them to find Sureties for the good Behaviour, and for their Appearance at the next Superior Court; but he cannot fine them: This must be done by a Superior Jurisdiction.

If he neglects to suppress a Riot whereof he has Notice, he is finable.

But regularly, by the Statute 23 H. 4. cap. 7. Two Justices, assisted by the Sheriff or Under-Sheriff, are to take Recognizance of Riots, and to inquire who are the Rioters; to apprehend and imprison Offenders, or bind them to good Behaviour; and to seize their Arms, and appraise them for their King's Use: If the Justices are opposed, they may justify the beating, wounding, and killing the Rioters. Lamb. 313.

They may record a Riot, upon their own View, which is not traversable, but shall amount to a Conviction of the Offenders, without Inquiry by a Jury; and upon this Record being by the Justices certified to the Superior Court, Process shall issue against the Rioters, that they may be fined there.

If the Offenders escape, being taken by the Justices who came to view and suppress the Riot, they may issue





their Warrant to the Sheriff, to apprehend the Persons escaped, and may bind them to good Behaviour, or commit them, when taken.

Justices having Notice of a Riot, and neglecting to suppress it, or to apprehend the Rioters, or to record a Riot committed in their View, or committing without recording, or failing to make Inquisition within One Month after a Riot is committed; every Justice offending in any of these, forfeits 100 l. Roll. Rep. 169, &c.

[note]

Record of a Riot, upon View of Two Justices.

— County, ss.

MEMORAND. That on the — Day of — and in the — Year of the Reign of our Sovereign Lord King George the Third, we A. B. and C. D. Esqrs. two of his Majesty's Justices of the Peace for the said County, and E. F. Gent. the Sheriff thereof, upon Complaint and Request to us made by G. H. of the Parish of — in the same County, Planter, did personally go to the Mansion-House of the said G. H. in the Parish and County aforesaid, and there we did see K. L. and M. N. both of the same Parish and County, Planters, and others, to the Number of Seven Persons, armed with Clubs, Swords, Guns, and Pistols, unlawfully and riotously assembled together and violently committing divers evil, unlawful, and riotous Acts, in the House aforesaid, to the Terror of the People, against the Peace of our said Lord the King, and contrary to the Form of the Statute in that Case made and provided. And therefore we the aforesaid A. B. and C. D. then and there immediately caused the said K. L. and M. N. to be arrested, and committed them into Custody of the God of the County aforesaid, there to remain until they shall be discharged by due Course of Law; they being convicted of the said Riot, and of being unlawfully met and assembled, upon our own View, Testimony, and Record. And in Testimony thereof, we have affixed our Seals to these Presents. Dated the Day and Year above written.

[note]

This Record must be certain as to Time, Place, Persons, and their Number, and Weapons, and the Manner and Circumstances of the Offence; because it is a Judgment, and not traversable by the Defendants, but being certified by the Superior Court, the Parties will be thereupon fined, without other Trial.





Mittimus upon View.

To the Sheriff of the County of — and to the Keeper of the Gaol of the said County.

WHEREAS upon Complaint made to us, A. B. and C. D. Esqrs. two of his Majesty's Justices of the Peace for the said County, by G. H. of the Parish of — in the same County, Planter, we did this present — Day of — go to the Mansion-House of the said G. H. and then there we did see K. L. and M. N. both of the same Parish, Labourers, and other Persons, unlawfully assembled together, in a riotous Company and Manner, and with Force and Arms, committing divers riotous Outrages, to the Terror of the People, and against the Peace of our Sovereign Lord the King, and contrary to the Form of the Statute in that Case made and provided: Therefore we herewith send you the Bodies of the said K. L. and M. N. convicted of the said Riot, and upon our own View and Record. And we command you, in his Majesty's Name, to receive them into your Gaol and Custody, and them there safely to keep, till they shall be discharged by due Course of Law. Given under our Hands and Seals, this — Day of —

[note]

Or they may be bailed, by entering into Recognizance, with or without Sureties, as the Justices think fit, upon this Condition, viz.

THE Condition of this Recognizance is, That whereas the above bounden K. L. and M. N. were this present Day apprehended by Command of A. B. and C. D. Esqrs. two of his Majesty's Justices of the Peace for the said County, for a Riot made and committed by the said K. L. and M. N. at the Mansion-House of G. H. in the Parish of — aforesaid, whereof they are convicted by the View, Testimony, and Record, of the said Justices: If therefore the said K. L. and M. N. shall personally appear before his Majesty's Judges of the Superior Court, to be held at — the — Day of — next, to do and receive what shall be enjoined them by the said Court, and not to depart thence without Licence, and if in the mean Time they shall be of the good Behaviour; then this Recognizance to be void.

[note]



The Statute above mentioned not only requires the Justices to make a Record of the Riot, upon their own View, and to commit the Offenders; but it also impowers them, together with the Sheriff, upon such Conviction, to fine the Rioters, and commit them till paid: Yet Mr. Dalton’s Advice seems safest and best, which is, to certify the Record to a Superior Court, that they may be fined there. Dalt. 197. Dyer 210.

If a Riot is committed, but not in View or Presence of the Justices, and the Rioters are gone, two Justices may issue their Precept, within one Month after the Fact, directed to the Sheriff, to summon a Jury, to inquire of the Offence; and if ’tis found by them, the Justices may, by their Warrant, command the Offenders to be brought before them, and may bind them to the good Behaviour, or commit them.

[note]

But if the Offenders cannot be taken, and the Sheriff returns that the Defendants are not found in his Bailiwick, they may be outlawed, upon Process issued from the Superior Court.

Precept for summoning a Jury.

— County, ss.

A. B. and C. D. Esqrs. two of his Majesty's Justices of the Peace for the said County. To the Sheriff thereof, Greeting. On Behalf of our Sovereign Lord the King, we command you, that you cause to come before us, at the Court-House of your County, the — Day of — next, Twenty Four good and lawful Men of your Bailiwick, to inquire upon their Oaths, for our said Lord the King, as also for our Indemnity in this Behalf, of a certain unlawful Assembly and Riot, in the Parish of — within your County, lately committed, as ’tis said; and that you return Twenty Shillings in Issues upon each Person by you impannelled, to be by him forfeited, if he shall not appear to be sworn to inquire of the Premises, at the Day above mentioned. And this you shall in no wise omit, on Penalty of Twenty Pounds; and have then there the Names of the said Jurors, together with this Precept. Given under our Hands and Seals, this — Day of —

[note]

Jurors Oath.

YOU shall true Inquiry and Presentment make of all such Things as shall come before you, concerning a Riot, Rout, and unlawful Assembly, said to have been lately committed





at — in this County. You shall spare no one for Favour or Affection, nor grieve any one for Hatred or ill Will; but proceed herein according to the best of your Knowledge, and according to the Evidence that shall be given to you. So help you God.

[note]

The Oath which your Foreman hath taken on his Part, you, and every of you, shall well and truly observe and keep on your Parts. So help you God.

The Inquisition.

— County, ss.

INQUISITION for our Sovereign Lord the King, taken at — in the County aforesaid, this — Day of — before A. B. and C. D. Esqrs. two of his Majesty's Justices of the Peace for the said County, upon the Oath of [the Names of the Jury] good and lawful Men of the County aforesaid, who being charged and sworn, upon their Oaths, do say, That K. L. of the Parish of — in the said County, Labourer, and other Malefactors and Breakers of the Peace, to the Jurors aforesaid unknown, the — Day of — last past, with Force and Arms, viz. Clubs, Swords, Guns, and other Weapons, unlawfully and riotously entered the Mansion-House of G. H. in the Parish aforesaid, between the Hours of Ten and Eleven in the Forenoon of the same Day, and him the said G. H. did assault, beat, and wound, and other Enormities unlawfully and riotously then there did commit, to the great Disturbance of the King's Peace, and Terror of his Subjects, contrary to the Form of the Statute in that Case made and provided. In Testimony whereof, we the Jurors asoresaid to this Inquisition, have severally affixed our Seals, the Day, Year, and Place, first above mentioned.

[note]

After a Riot is found upon such Inquisition, the Justices may award their Precept to the Sheriff, commanding him to cause the Offenders to be brought before them, and may thereupon require them to find Sureties for the good Behaviour, or commit them to Gaol: This they may do, in Pursuance of the Statute, which likewise enables them to fine the Offenders, and commit them till paid; as also to award Process of Outlawry against those who will not be taken, and where the Sheriff returns non est inventus. But the best Method for the Justices is, to certify the Inquisition taken before





them, together with the whole Record, to the Clerk of the Superior Court, that thereupon further Process may be awarded from thence.

All that has been mentioned under this Title is to be understood of great and notorious Riots only; the Intent of the Statutes, whereby Authority is given to Justices of Peace, to convict and punish Offenders upon their own View, appears to be, for preventing Delays in suppressing dangerous Riots, which, if not speedily quelled, might hazard the Peace of the whole County: But for small Riots, the Justices may make Inquiry at any Time afterwards, and proceed against Offenders as Trespassers against the Peace.

Indictment for a Riot.

THE Jurors for our Lord the King, upon their Oath, present, that A. O. late of the Parish of — in the County of — Yeoman, B. O. late of the same, Yeoman, C. O. late of the same, Yeoman, and divers other Persons (to the Jurors aforesaid as yet unknown) on the — Day of — in the — Year of the Reign of — at the Parish aforesaid, in the County aforesaid, with Force and Arms, unlawfully, riotously, and routously, did assemble and gather together, to disturb the Peace of our said Lord the King; and so being then and there assembled and gathered together, in and upon one A. I in the Peace of God, and of our said Lord the King, then and there being, unlawfully, riotously, and routously, did make an Assault, and him the said A. I. then and there unlawfully, riotously, and routously did beat, wound, and ill treat, and other Wrongs to the said A. I. then and there unlawfully, riotously, and routously did; to the great Damage of the said A. I. and against the Peace of our said Lord the King, his Crown and Dignity.

RIVERS. See ROADS & FERRIES.

ROADS & FERRIES.

BY an Act of Assembly of this Province, all Roads and Ferries that have been laid out or appointed, by any Act of Assembly, or Order of Court, are declared Public Roads and Ferries; and that the County





Court shall hereafter order the laying out all Roads, and settle all Ferries, where necessary, in the several Counties, and to appoint where Bridges shall be made, and to discontinue such Roads as shall be found useless, and to alter Roads so as to make them more useful.

[note]

County Courts have full Power to call to Account all Persons having Monies in their Hands by Virtue of any Distress heretofore made for Default of working on the Roads, and to apply such Monies towards keeping the Roads and Bridges in Repair.

All Roads to be laid out by a Jury of Twelve Men, Freeholders, who are to take an Oath to lay out the same to the greatest Ease and Convenience of the Inhabitants, and as little as may be to the Prejudice of private Persons inclosed Grounds; and the Damages any private Person may sustain by laying out such Road, shall be ascertained by the Jury, on Oath, to be equally assessed by the Court, and levied and collected by the Overseer of the Road on the taxable Persons who ought to work on such Road, and paid to the Party injured.

If any Person not impowered to keep a Ferry, shall transport any Person, their Horses or Effects, over any River or Creek within Ten Miles of another Ferry on the same River or Creek, such Person shall forfeit Twenty Shillings for every Offence, to the nearest Ferryman, recoverable by a Warrant from a Justice of the Peace.

All Public Ferry Keepers must keep good and sufficient Boats, and well attend the same, for the Passage of all Travellers, on Penalty of Ten Pounds for every Neglect; recoverable in the County Court, Half to the Informer, and Half to the County.

All Roads must be cleared from Trees, Stumps, and Brush, at least Twenty Feet wide; and Limbs of Trees that may incommode Horsemen or Carriages, must be cut away. All Bridges or Causeways to be made over Swamps, Lowlands, or small Runs of Water, the Pieces to be laid across the Road, Fourteen Feet long, well secured, made fast, and covered with Earth; and all Bridges over deep or navigable Streams, shall be made Twelve Feet wide, with good sawed Plank, clear of Sap, at least Two Inches thick, with firm and strong Posts, Rails, and Bearers, well secured and fastened; and the Overseer of the Road may cut and take from off the Lands of any Person next adjacent, any Timber that may be necessary for such Bridge.





Where Overseers with their Companies cannot make Bridges, the County Court must contract for building such Bridge, and keeping the same in Repair, and levy the Charge thereof on the County. And where Bridges shall be necessary over any Creek or River which divides a County, the Court of each County shall join in building such Bridge, and the Charge defrayed by both Counties.

All Contracts for Bridges made by the Justices of the County Courts, to bind them and their Successors.

County Courts annually to appoint Overseers of the Roads, who are to summon all Male Taxables, from 16 to 60, within their District, to meet at such Places and Times as they shall think convenient, for repairing and making such Roads as shall be necessary; all Persons exempt from working on Public Roads by the Assembly, and such as are excused from appearing at Musters, and such as send three Slaves, or other sufficient Hands to work on the Roads, excepted. All Persons refusing or neglecting to obey the Summons of the Overseer, and to perform their Duty on the Road, to forfeit Two Shillings and Eight Pence for every Day they neglect their Duty as aforesaid; recoverable by a Warrant from any Magistrate of the County, and to be paid to the Overseer, and by him laid out in hiring other Hands to work on such Roads.

Overseers of Slaves to work on the Roads.

Overseers of Roads to summon taxable Persons to work, Six Days before the Time of working.

All Overseers of Roads neglecting their Duty, and suffering Roads or Bridges to be out of Repair for Ten Days, unless hindered by bad Weather, shall forfeit Twenty Five Shillings, over and above the Damage that may be sustained; recoverable by a Warrant from a Magistrate, by any Person, to his own Use.

All Public Ferry Keepers, and Owners of Toll Bridges, must give Bond to the County Court, in the Sum of One Hundred Pounds, payable to the Chairman, and his Successors, with Condition, that he or they will constantly keep good Boats or other Crafts, and keep such Bridges in good Repair, and well attend the same, for the Conveyance of all Travellers, their Horses, Carriages, or Effects, over such Ferries or Bridges. And if any Person shall receive Damage by any Ferry Keeper or Owner of a Toll Bridge, in not





complying with the Condition of his Bond, he may bring his Action against such Ferry Keeper or Bridge Owner, on such Bond, in the Name of the Chairman, and shall recover such Damages as shall appear he has sustained, and Execution may be awarded for the same. And if any Person shall be detained at any Ferry, by Reason of the Ferry Keeper's not having sufficient Boats, and Hands, or by his neglecting to do his Duty, such Person shall recover, by a Warrant from a Justice, Twenty Five Shillings from such Ferryman.

County Courts may order navigable Rivers or Creeks to be cleared, and may appoint the Overseers of the Roads that live nearest to such Rivers or Creeks, with their Companies, to perform such Service. Upon Refusal or Neglect of such Overseers and Companies to do and perform such Service, he or they so refusing, shall be liable to the same Fines as for neglecting to work on the Roads; to be recovered and applied in the same Manner.

All Persons aggrieved by the Sentence of any Justice, or Verdict of any Jury, in laying out any Road, may appeal to the County Court.

Overseers of Roads must set up, at the Parting of all Roads, Posts, with Arms pointing the Way of each Road, with Directions to the most Public Places to which they lead, with the Number of Miles from that Place; on Penalty of Forty Shillings for every Neglect; recoverable before a Justice of the Connty, and applied as other Fines.

And all Overseers of Roads shall cause the same to be measured, and at the End of every Mile mark the Number of Miles, beginning, continuing, and making the Numbers, in such Manner as the County Court shall direct, and shall keep such Marks and Numbers in Repair. And every Overseer neglecting to Mile mark, or to keep the same in Repair, for Thirty Days after Notice of their being unmarked or out of Repair, shall forfeit Twenty Shillings, recoverable by a Warrant from a Justice.

This Act is not in Force in the Counties of New-Hanover, Brunswick, Bladen, Mecklenburg, and Guilford; but the Roads in those Counties are regulated by Commissioners, as appointed by a former Act of Assembly, long since repealed, but again enforced as to those Counties.

[note]



Warrant for an Overseer of the Roads to recover the Fine for Delinquency on working on the Roads.

— County, ss.

To A. B. Constable, or any lawful Officer of the said

County.

WHEREAS Complaint hath been made to me, C. D. Esq; one of his Majesty's Justices of the said County, by E. F. Overseer of the Roads for the District of — that — one of the Company liable by Law to work on the Roads in the said District, hath made Default on working on the said Roads with — Taxables, for — Days, after being lawfully warned by the said Overseer for that Purpose: These are therefore, in his Majesty's Name, to require you to bring the said — before me, or some other Justice of this County, to answer the said Complaint. Given under my Hand and Seal, this — Day of.

[note]

The Warrants to be granted by any Justice of the Peace, for the Recovery of the several Penalties mentioned in this Act, are to be made in the common Form, only varying in the particular Penalty it is to recover.

Bond to be given to the County Court by all Ferrymen and Toll Bridge Owners.

NORTH-CAROLINA.

KNOW all Men by these Presents, that we A. B. and C. D. of the County of — in the Province aforesaid, are held and firmly bound unto E. F. Chairman of the Court of the said County, and his Successors, in the Sum of One Hundred Pounds, Proclamation Money. To which Payment well and truly to be made, we bind ourselves, each and every of our Heirs, Executors, and Administrators, jointly and severally, firmly by these Presents. Sealed with our Seals, and dated this — Day of — 1774.

[note]

THE Condition of this Obligation is such, That whereas the above bound A. B. hath been appointed Ferry Keeper at — Ferry, leading over — River [or Keeper of the Toll Bridge leading over — River.] If therefore the said A. B. shall constantly keep his said Ferry well and sufficiently provided with good and substantial Boats, or other Crafts [or the said Bridge in good and sufficient Repair] and constantly keep the same well and sufficiently attended with good





Hands, for the Conveyance of all Travellers, their Horses, Carriages, or Effects, over the said Ferry [or Toll Bridge] and suffer no Damage to be sustained by any Person crossing his said Ferry [or Bridge] by Reason of his Neglect of Duty in well attending the same, then this Obligation to be void; otherwise to remain in full Force.

[note]

Oath of the Jurors appointed to lay off any new Road.

YOU, and each of you, swear, That you will well and truly lay off a Road leading from — to — as by an Order of Court to you direded for that Purpose; and that you will lay out the said Road to the greatest Ease and Convenience of the Inhabitants, with as little Prejudice as possible to private Persons inclosed Grounds. And that if such Road should unavoidably pass through any such inclosed Grounds, that you will well and truly ascertain the Damage occasioned thereby to such private Person, without Favour, Affection, or other bye Respect. So help you God.

[note]SEARCH WARRANT

IT is customary in this Province for Justices, on Application for Warrants to search for stolen Goods, to grant General Warrants, to search all such suspected Places as the Officer and the Party complaining shall think convenient; but such Practice is condemned by the best Authorities.

[note]

Lord Hale, in his Pleas of the Crown, says, a General Warrant to search for Felons, or stolen Goods, is not good. H. Pl. 93.

[note]

Mr. Hawkins says, I do not find any good Authority, that a Justice can justify sending a General Warrant to search all suspected Houses in general for stolen Goods, because such Warrant seems to be illegal in the very Face of it; for it would be extremely hard to leave it to the Discretion of a common Officer to arrest what Persons, and search what Houses he thinks fit: And if a Justice cannot legally grant a blank Warrant for the Arrest of a single Person, leaving it to the Party to fill up, surely he cannot grant such a General Warrant, which might have the Effect of an Hundred blank Warrants. 2 Haw. 82, 84.





Again, Lord Hale, in his History of the Pleas of the Crown, expresseth himself thus: I do take it, that a General Warrant to search in all suspected Places is not good; but only to search in such particular Places where the Party assigns before the Justice his Suspicion, and the probable Cause thereof; for these Warrants are judicial Acts, and must be granted upon Examination of the Fact. 2 H. H. 150.

Upon a bare Surmise, a Justice cannot make a Warrant to break any Man's House, to search for a Felon, or for stolen Goods; for the Justices being created by Act of Parliament, have no such Authority granted to them by any Act of Parliament: And it would be full of Inconvenience, that it should be in the Power of any Justice of the Peace, being a Judge of Record, upon a bare Suggestion to break the House of any Person, of what State, Quality, or Degree soever, either in the Day or Night, upon such Surmises. 4 Inst. 177.

[note]

But in Case of a Complaint, and Oath made, of Goods stolen, and that the Party suspects the Goods are in such a House, and shews the Cause of his Suspicion; the Justice may grant a Warrant to search in those suspected Places mentioned in his Warrant, and to attach the Goods, and the Party in whose Custody they are found, and bring them before him, or some other Justice, to give an Account how he came by them, and further to abide such Order as to Law shall appertain. 2 H. H. 113, 150.

But in that Case, Lord Hale says, it is convenient that such Warrant do require the Search to be made in the Day Time; and though I will not affirm, says he, that they are unlawful without such Restriction, yet they are very inconvenient without it; for many Times, under Pretence of Searches made in the Night, Robberies and Burglaries have been committed, and at best it creates great Disturbances. 2 H. H. 150.

[note]

Whether the stolen Goods are in a suspected House or not, the Officer and his Assistants in the Day Time may enter, the Doors being open, to make Search, and it is justifiable by this Warrant. 2 H. H. 151.

If the Door be shut, and upon Demand it be refused to be opened by them within, if the stolen Goods be in the House, the Officer may break open the Door. 2 H. H. 151.





If the Goods be not in the House, yet it seems the Officer is excused that breaks open the Door to search, because he searched by Warrant, and could not know whether the Goods were there, till Search made; but it seems the Party that made the Suggestion is punishable in such Case: For as to him the breaking of the Door is in eventu lawful or unlawful, to wit, lawful if the Goods are there, unlawful if not there. 2 H. H. 151.

On the Return of the Warrant executed, the Justice hath these Things to do:

As touching the Goods brought before him, if it appear they were not stolen, they are to be restored to the Possessor; if it appear they were stolen, they are not to be delivered to the Proprietor, but deposited in the Hands of the Sheriff or Constable, to the End the Party robbed may proceed, by indicting and convicting the Offender, to have Restitution. 2 H. H. 151.

[note]

As touching the Party who had the Custody of the Goods, if they were not stolen, then he is to be discharged; if stolen, but not by him, but by another that sold or delivered them to him, if it appear that he was ignorant that they were stolen, he may be discharged as an Offender, and bound over to give Evidence as a Witness against him that sold them; if it appear he was knowing they were stolen, he must be committed, or bound over to answer the Felony. 2 H. H. 152.

Form of a Search Warrant.

— County, ss.

To A. B. Constable, or any other lawful Officer.

WHEREAS Complaint hath been this Day made to me C. D. Esq; one of his Majesty's Justices of the Peace of the said County, by E. F. on Oath, that the following Goods, to wit [here insert the Goods] hath been feloniously stalen, within — Days last past, from out of the House of the said E. F. of the County aforesaid, by Persons unknown; and that the said E. F. hath great and probable Cause to suspect that the said Goods, or Part thereof, are concealed in the Dwelling-House of G. H. in the said County, Planter. These are therefore, in his Majesty's Name, to authorize and require you, with proper Assistants, to enter in the Day Time into the House of the said G. H. and there diligently to search for the said Goods; and if the same, or any Part thereof, shall be found upon such Search, that you bring the Goods so found, and also the





Body of the said G. H. before me, or some other Magistrate of the said County, to be disposed of and dealt with according to Law. Given under my Hand and Seal, this — Day of —

[note]SERVANTS AND SLAVES.

NO Slave shall hunt on any Land but his Masters, nor shall they carry a Gun at all after the Crop is housed. See ARMOUR.

[note]

Slaves travelling from their Masters Lands, to keep the Main Road; if they are found on any Persons Land, they may be whipped. And if any disorderly, loose, or suspected Person, be found in Company with Slaves in the Night Time, they may be whipped, by Order of a Justice.

If Negroes travel in the Night, and are found in Kitchens or Quarters among other Persons Negroes, they shall be whipped.

No Christian that shall be imported into this Province shall be a Servant, unless the Person importing shall produce an Indenture, or some Agreement, to serve him, in Consideration of his Passage, or otherwise. All Complaints of this Nature to be determined by the County Court.

If any Servant shall absent himself from his Master's Service, he shall serve double Time, after his Time of Service expired; also such longer Time as the County Court shall judge necessary.

If they resist their Master, Mistress, or Overseer's Commands, or lay violent Hands on them, they shall suffer corporal Punishment, at the Discretion of a Justice, not exceeding Twenty One Lashes.

All Masters of Servants shall provide them good and wholesome Diet, Cloathing, and Lodging, nor shall give them immoderate Correction, or whip them naked, without an Order from a Justice, on Penalty of Forty Shillings, recoverable by Petition to the County Court. Complaint to be made within Six Months.

Justices of Peace are to hear Servants Complaints, and bind the Master, &c. over to Court, where all Complaints are to be heard; and the Court, having summoned the Master, &c. to justify himself, may order





what shall be necessary as to Cloaths, Diet, Lodging, or Correction. If the Master, &c. do not comply with such Order, the Court may order the Servant to be sold, and the Money paid to the Owner.

If by Sickness such Servant cannot be sold for sufficient to pay the Charges, the Court shall order him into the Care of the Churchwardens, where the Master, &c. shall provide for him until recovered, or Expiration of his Time of Service.

If the Master, &c. neglect such Provision, the Court shall order the Charges to be levied on him.

All Complaints of Servants for their Freedom Dues, shall be heard by the County Court, and Judgment given thereon.

No Master or Mistress of Servants shall, by Reason of Sickness, set them free, whereby they may be chargeable to the Parish. Any Master or Mistress offending herein, and not taking all lawful Means for the Recovery of such Servant, shall forfeit Five Pounds, to the Churchwardens, to be levied by Order of Court, and applied to the Maintenance of such sick Servant; and such Servant shall, by the County Court, on any Two Justices, be ordered into the Care of the Churchwardens of the Parish where his Master shall dwell. If such Servant should die before the Five Pounds is all expended, the Remainder to the Parish; and if Five Pounds should not be sufficient to maintain such Servant, the Court may order a Sufficiency to be levied, from Time to Time, on the Master; and such Servant, on Recovery, shall be set free.

If Servants bring Disorders on themselves, whereby they become useless to their Masters or Mistresses, the County Court shall adjudge what further Time they shall serve, after the Expiration of their Time of Service, in order to reimburse their Masters or Mistresses for the Trouble they have had with them in their Sickness; and they shall also serve over the Time lost in such Sickness.

If any Servant shall make groundless Complaints, he shall serve double the Time lost in Prosecution of such false Complaints.

If any Servant shall be put in Gaol for his Offences, he shall serve double Time; also what further Time the County Court may think fit, for the Trouble he has given his Master or Mistress.





In all Cases of Penal Laws, where free Persons are punishable by Fine, Servants shall be punishable by Whipping, at the Discretion of the Court, or Justices, not exceeding Thirty Nine Lashes, unless they can pay the Fine.

No free Person shall trade with any Servant, Apprentice, or Slave, on Penalty of double the Value of the Commodity traded for, and the further Sum of Six Pounds; recoverable in the County Court, to the Master or Mistress. And if such Offender shall not be able to pay the Fine, he or she shall be sold for a Servant for the same.

If the Master or Owner of such Servant doth not prosecute in Six Months, any other Person may, and recover the Penalty.

If any Servant shall imbezzle his Master's Goods, Corn, Cattle, Provisions, or Commodities of any Sort, he shall, by Order of the County Court, serve his Master such further Time as the Court shall think fit.

If any Woman Servant shall have a Child during her Servitude, she shall serve her Master or Mistress one Year for the same.

If she has a Child by her Master, the Churchwardens may sell her for one Year, to the Use of the Parish. And if any Woman Servant shall have a Mulatto Child, the Churchwardens shall sell her for two Years, to the Use of the Parish; and the Child shall be bound out by the Court to the Age of Thirty One Years.

Where any Servant shall be imported on Wages, and found not to understand his Trade, the Court may dock his Wages.

Where they are imported on Wages, and refuse to do their Duty, or absent themselves from Service, the County Court may order them to make Satisfaction for their Neglect of Duty, and to serve double the Time they shall lose, by absenting themselves, and without Wages.

Servants shall be allowed for their Freedom Dues Three Pounds, besides a Suit of wearing Cloaths.

If any Person shall import and sell as a Slave, any Person that shall have been free in any Christian Country, Turk, or Moor, in Amity with his Majesty, he shall forfeit to the Person from whom such Person shall recover his Freedom, double the Sum he shall be sold for; recoverable in any Court of Record, wherein the





Defendant shall not be allowed to plead the Statute of Limitation. And moreover such Person shall be committed till he give Bond to the King, in Five Hundred Pounds Sterling, that he will land such Person (if he shall desire it) in the Country from whence he or she was directly brought, within one Year, and produce to the Court a Certificate thereof.

Every Justice before whom any Complaint of any Person sold as a Slave shall be made, shall cause the pretended Owner to come before him, and hear the Evidence; and after taking the Examination in Writing, shall bind them over to the next Court, where the Matter shall be determined.

If any Person shall tempt or persuade any Servant or Apprentice, Negro or other Slave, to leave their Master's Service, or shall encourage, relieve, assist, harbour or entertain, any such runaway Servant, Apprentice, or Slave, he shall forfeit Forty Shillings, and Five Shillings for every Twelve Hours such Servant, Apprentice, or Slave, shall afterwards be absent from his Master's Service; recoverable in any Court of Record, by the Master or Mistress. And if such Person shall be incapable to pay such Fine, he or she shall be sold as a Servant for the same.

If any Overseer shall leave his Employer's Service before the Time of his Contract expires, he shall forfeit his Wages, or Share of the Crop.

If any Person shall tempt or persuade any Slave to leave his Master or Mistress's Service, with an Intent to carry such Slave out of the Province, or shall harbour or conceal such Slave for that Purpose, such Person shall be committed, or bound over to the next County Court, by the Two next Justices, and shall be prosecuted by Indictment, and if convicted, shall pay the Master of such Slave Twenty Five Pounds; and if incapable to pay such Fine, shall serve the Master of such Slave Five Years. And if any such Person shall actually carry such Slave out of the Province, he shall be guilty of Felony, and suffer accordingly.

For all runaway Servants or Slaves taken up Ten Miles or under from home, the Taker up shall be allowed Seven Shillings and Six Pence, and for every Mile above Ten, Three Pence, over and above the said Sum; to be paid by the Churchwardens, and levied again on the Master or Mistress of such Runaway. And





every Justice before whom such Runaway shall be bro't, shall grant a Certificate to the Taker up, with the Name of the Runaway, the proper Name of the Taker up, the County of his Residence, the Time and Place of taking up, and the proper Name and Surname of the Master or Owner or such Runaway, and the County of his Residence, with the Distance of Miles from the Place of taking up such Runaway, to the House or Quarter where he was kept; upon producing which Certificate to the Churchwardens, they shall pay the said Reward. If the Owner of such Runaway should not reside, or have Effects in the County where the Certificate should be granted, the Churchwardens shall transmit it to the Sheriff of the County where the Owner shall reside, who shall levy the same on his Goods and Chattels.

If any runaway Negro shall be brought before a Justice, who cannot speak English, or tell his Master's Name, the Justice shall commit such Runaway to Gaol, and the Sheriff is to give Notice thereof, with a full Description of the Runaway, by advertising the same at the Court-House Door for Two Months, and shall send a Copy of such Advertisement to the Reader of every Church or Chapel in the County, who shall publish the same every Sunday for Two Months. And every Sheriff failing to give such Notice, shall forfeit Five Pounds, recoverable in any Court of Record, Half to the Churchwardens, and Half to the Informer.

If the Owner of such Slave is not known in Two Months, the Sheriff shall deliver him to the Constable, to be conveyed from Constable to Constable, to the Public Gaol of the District.

If the Owner of such runaway Slave cannot be known, the Gaoler, with Consent of the Superior or Inferior Court, or any Two Justices, may hire him out, for the best Price that can be got; out of which Hire, all Fees attending the taking up, Commitment, and Imprisonment, shall be paid, and the Remainder disposed of as the Court shall direct.

When the Owner appears, such Runaway shall be delivered to the Gaoler, and his Hire