THE OFFICE and AUTHORITY OF A JUSTICE of PEACEAND 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.
Accessary.
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.
None but in Felony.
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.
Accessary before the Fact.
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.
Accessary after the Fact.
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.
Accessaries before or after the Fact, what Penalties liable to.
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.
Accessaries how far bailable.
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.
Principal convicted, &c. Accessary may be tried.
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.
Receivers of stolen Goods may be tried before the Principal.
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.
Indictment.
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.
Addition.
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.
To be inserted in every Warrant.
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.
Indictment, for Want of Addition, may be quashed.
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.
Affray what.
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.
What may be done in it by a Justice.
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.
By a Constable.
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.
By a private Person.
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.
Remedy against an Affrayer.
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.
Justice to issue his Warrant against him.
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.
Oath.
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.
Warrant.
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.
Offender bailed.
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.
On Recognizance.
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.
Recognizance.
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.
Appearance.
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.
Mittimus.
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.
Indictment.
APPEALS.THE Signification of this Word, in Law, is different, according to the Nature of the Appeal; which is either,
Appeal.
| 1. In civil, or | Proceedings. |
| 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.
In civil Cases.
2. An Appeal in criminal Cases signifies an Accusation, and is of three Sorts, to be brought either by Writ or Bill:
In crimi- Cases.
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.
Appeal the Suit of the King.
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.
Appeals by the Laws of the Province.
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.
Who may be disarmed.
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.
Where Arms may be seized by the Laws of this Province.
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.
Page 42.
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.
Page. 152.
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.
Licence for a Slave to keep a Gun.
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.
Arraignment.
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.
Arrest and Imprisonment.
’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.
Who may be arrested by an Officer.
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.
By a private Person.
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.
When an Arrest lawful.
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.
Laws, P. 400.
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.
When Doors may be broke open.
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.
Commitment.
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.
Imprisonment.
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.
The Manner.
ASSAULT and BATTERY.ASSAULT is the offering some Hurt to the Person, as by striking, &c. And Battery is the wrongful beating another.
Assault & Battery.
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.
Where justifiable.
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.
Punishment for an Assault.
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.
Proceed, with those guilty of it.
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.
Warrant.
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.
Indictment.
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.
Assembly.
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.
Writs of Election how granted.
And the Poll how taken.
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.
Who deemed a Freeholder
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.
Qualification of Voters, and Members.
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.
Freeholders Oath.
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.
Duty of Sheriffs, on receiving Writs.
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.
No Gift, &c. to be given to Voters.
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.
Copy of the Poll to be given.
All Members of Assembly, before they sit in the House, are to take the Oaths of Government, and subscribe the Test.
Members to take the Oaths.
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.
Pen. on the Sheriff for taking the Poll wrongfully.
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.
Elections for Towns.
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.
Writ returned.
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.
Return.
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.
On the Death of Members, new write issue.
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.
Allowance to Members of Assembly.
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.
Pen. on Members failing to give Attendance.
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.
For absenting without Leave.
Every Person attending their Duty at Elections for Members of Assembly, exempt from Arrests during the Time of Election.
Exempt from Arrests.
No Person elected a Member of Assembly, shall, during his continuing a Member, be capable of serving as Sheriff for any County.
Not to serve as Sheriff.
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.
No Sheriff, Coroner to take the Poll.
No Member of Assembly capable of being Inspector of Commodities or Tobacco.
No Member to be Inspector.
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.
Attachment.
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.
Attachment granted.
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.
Attached Goods repleviable.
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.
Perishable Goods to be sold.
Garnishees
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 —
Bond.
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. —
Form of Attachment.
When any Justice of the Peace grants an Attachment returnable before himself, the Proceedings may be as follows:
Proceed. on Attachment.
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.
Return.
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.
Judgment.
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.
Execution.
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.
Attainder and Conviction.
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.
What it is.
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,
Punishment, in Attainder.
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.
Attorney.
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.
Who may act as Attorney.
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.
Attornies how licensed.
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.
Their Fees
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.
Pen. for taking greater Fees.
The Clerks of the several Courts are to tax the Attornies Fees in every Bill of Costs.
Clerks to tax Attornies Fees.
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.
Pen. on Attornies for Neglect.
Notwithstanding, after Determination of any Suit, a Client may make his Lawyer a greater Compensation, if he thinks he has merited it.
Clients may give larger Fees
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.
Award.
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.
Actions personal.
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.
Matters of Freehold.
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.
By Parol.
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.
By Covenant.
3. Submission by Rule of Court, is made in Pursuance of the Statute 9 & 10 W. c. 15. which enacteth as follows:
By Rule of Court.
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.
By Bond.
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.
Both by Bond and Rule of Court.
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.
Whether the Submission may be countermanded.
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.
Arbitrators cannot administer an Oath.
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.
Award best to be in Writing.
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.
Award to be according to the Submission.
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.
Arbitrators cannot proceed after appointing an Umpire.
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.
Where the Award appoints no Time, the Thing is to be done immediately.
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.
Demand to be before Attachment.
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.
On Tender and Refusal, the Party refusing shall nevertheless sign a Release.
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.
Submission.
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 —
Bond
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.
Condition of two Arbitrators.
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.
Condition of three.
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 —
Award.
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.
Bail.
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.
What it is.
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.
Justices may bail.
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.
Pen. for bailing where they have no Power.
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.
Bail whero allowed.
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.
Sums to be bound in.
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.
Bail at Discretion
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.
Bail where taken a, way.
| 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. |
| Forgers | Of 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.
Caution to Justices.
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.
Prisoner must offer Sureties.
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.
Rules in Bail.
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.
Infant no Bail.
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.
Mittimus to express the Cause of Commitment.
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.
Pen. for admitting to Bail, where no Right.
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.
Form of Bail.
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.
Bail by Habeas Corpus.
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.
Substance of the Habeas Corpus Act.
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.
Writ of Habeas Corpus.
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.
Barrator.
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.
May be bound to the Peace.
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 —
Warrant.
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.
Mittimus.
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.
Recognizance.
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.
Justices may restrain Barrators.
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.
Indictment.
BASTARDS.A BASTARD is he that is born of a single Woman, his Father not being known in Law.
Bastard.
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.
Proceedings with Women having Bastards.
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.
Servant Women having Bastards.
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.
Warrant.
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 —.
Examination.
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.
Warrant.
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.
Bond.
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.
Condition.
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.
Warrant.
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.
Mittimus.
BEHAVIOUR.AS the good Behaviour includeth the Peace, I have therefore placed it under this Head.
Behaviour
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.
Surety for it when granted.
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.
Who may be bound to good Behaviour
| 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.
Warrant.
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.
Recognizance.
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.
Mittimus.
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.
Surety of the Peace.
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.
Oath.
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.
Warrant.
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.
Recognizance.
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.
Surety by a Justice.
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.
Constables Duty.
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.
Constables Duty on a general Warrant.
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.
Bail to be taken.
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.
Supersedeas
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.
Howgranted.
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.
Recognizance to be certified to Court.
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.
How forfeited.
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.
Recognizance how discharged
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.
Release.
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.
Bigamy.
’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.
Bills of Exchange.
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.
Damage on protested Bills.
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 —
Protest.
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.
Bill of Exchange.
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.
Blasphemy, how punished.
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.
Ten for denying the Holy Trinity.
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.
Boats and Ganoes, Pen. for taking them away.
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.
Warrant.
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.
Buggery.
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.’
How punished.
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.
Burglary.
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.
Where committed.
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.
Mansion-House.
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.
The Time.
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.
Larceny.
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.
Warrant.
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 —
Mittimus.
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.
Indictment for Burglary.
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.
For Burglary and Larceny.
BURNING of HOUSES
BY the Common Law, maliciously and voluntarily to burn down the House of another, is Felony. Dalt. 376.
Burning.
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.
What.
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 —
Warrant.
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.
Indictment.
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.
Buying of Titles, how punished.
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.
Cattle and Hogs.
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
If any Person shall see any of the above Crimes committed, and shall not, in Ten Days, discover the same to some Magistrate, he shall forfeit Five Pounds for every such Crime he shall see committed; recoverable in the County Court, by Action of Debt, by any Person who will sue for the same.
If any Person shall tell any other Person that he saw any of the above Crimes committed, on Proof thereof, it shall be sufficient Evidence to convict him of not informing a Magistrate as aforesaid.
Where any Person shall kill any Cattle or Hogs in the Woods, he shall, within Two Days, shew the Head and Ears of such Hog, or Hide with the Ears on of such Beast or Cattle, to the next Magistrate, or to Two substantial Freeholders; on Penalty of Five Pounds; recoverable in the County Court, by Action of Debt, by any Person suing for the same.
Proceedings with Cattle killed in the Woods.
Every Person having Cattle, Hogs, or Horses, shall have an Ear Mark, or Brand, different from any other Persons, which he shall record with the Clerk of the County Court; and shall brand all his Horses with the same Brand, from Eighteen Months old, and upwards, and Ear-mark all his Hogs from Six Months old, and upwards with his said Ear Mark; and Ear-mark or brand all his Cattle with his Ear Mark or Brand, from Twelve Months old, and upwards. Any Dispute arising about Ear-Mark or Brand, to be decided by the Record of the Clerk of the County Court.
Cattle, &c. to be marked.
Persons getting Cattle by Purchase, Gift, Will, or other lawful Means, shall, within Eight Months, brand such Cattle with his own Brand, in Presence of Two Witnesses, who shall sign a Certificate thereof.
The Act to prevent stealing Cattle and Hogs, to be read by the Clerk of the County Court, twice a Year; at the first Court after Easter, and the first Court after August; on Penalty of Twenty Shillings; recoverable by any Person, by Warrant from any Two Justices.
Act to be read.
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.
Proceedings with strange Cattle.
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.
Penalty on Slaves for killing Cattle.
Any Person driving Stocks to range on the Indians Lands, subject to the same Penalties as for ranging Stocks on white Peoples Lands.
Pen. for ranging on Indians Lands.
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.
Non-Residents not to range Cattle.
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.
Manner of driving Cattle.
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.
Infectious Distempers prevented.
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 —
Warrant.
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.
If the Complaint should be against a Driver for refusing to shew his Certificate, at the Request of any Person, the Warrant may be varied, by saying, and refuses to produce a Certificate for driving such Cattle.
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.
Certiorari, for what obtained.
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.
Form of a Certiorari.
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. —
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.
Chancery.
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.
Where & by whom held.
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.
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.
Proceed. in Chancery.
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.
Cheat, how punished.
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 —
Warrant.
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.
Churchwardens.
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.
Their Power.
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.
Elections of Vestrymen.
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.
Poll how taken.
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:
Who impowered to vote.
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.
Oath.
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.
Persons under Age, not to be Vestrymen &c.
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.
Pen. for not voting
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.
Pen. for voting, not being a Freeholder.
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.
Declaration.
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.
Churchwardens to be chosen.
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.
To purchase Books.
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.
Vestry to lay a Tax.
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.
How collected.
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.
Remedy against Collectors failing, to pay the Taxes.
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.
When to be paid.
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.
Justices to account with the Vestry.
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.
Act to be read.
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.
Pen. on Vestrymen not qualifying.
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.
Poor Houses to be built.
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.
Rules for the Poor.
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.
Burial Places appointed.
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.
Act to be read.
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.
Pen. on Women Servants having Bastards.
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.
Slaves not to be set free.
The Churchwardens of every Parish are to receive all Fines recovered on the Deer Act, for the Use of their Parish.
Churchwardens Duty.
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.
Pen. on Masters of Vessels bringing in poor Persons.
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.
Clergy, their Privileges.
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.
Benefit of Clergy, what.
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.
How obtained.
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.
Restored to Credit.
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.
Minister's Duty.
Every Minister received into a Parish as Incumbent, shall have a Salary of 133l. 6s. 8d.
His Salary
And he may take and receive the following Fees, viz.
For marrying, if by Licence, Twenty Shillings, if by Banns, Five Shillings.
And Fees.
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.
His Glebe.
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.
To be kept in Repair.
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.
Minister may be suspended.
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.
His Salary when paid.
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.
To preach where the Vestry direct.
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.
Where a Minister is suspended.
The Minister of every Parish shall perform Divine Service in a Surplice or Gown.
To preach in a Surplice, &c.
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.
Coin.
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.
Paper Bills
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.
Felony to counterfeit them.
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.
Pen. for clipping, &c.
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.
For uttering false Money.
Clergy is taken away from all Offenders in coining, by the Statutes 5 & 18 Eliz. and they shall not be bailed.
Clergy taken away for coining.
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 —
Warrant.
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 —
Mittimus.
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.
Method with Persons uttering false Money.
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.
Mittimus.
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.
Commitment.
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.
Who may be committed.
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.
Commitment how made.
Where a Statute appoints Imprisonment, but does not limit the Time, it must be at the Discretion of the Court. Dalt. 170.
When at Discretion
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.
Pen. on Gaoler refusing to receive a Felon.
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.
Persons committed how discharged.
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 —
Mittimus.
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.
Common Law, what,
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.
Its first Rise.
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.
Civil Law, what.
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.
Common Prayer, when established.
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.
Pen. for neglecting the Use of it.
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.
On Ministers refusing to use it.
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.
Or other Person depraving it.
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.
Conspiracy, what.
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.
Party's Remedy to punish the Offender.
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.
Punishment.
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.
Pen. on Slaves conspiring.
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.
Constable
1. Honesty; to execute his Office truly, without Malice, Affection, or Partiality.
His Qualification.
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.
Where resident.
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.
How appointed.
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.
How sworn.
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.
Where they die, or remove.
Justices of Peace, Clergymen, Lawyers, Physicians, Infants, Madmen, Poor, Old, and Sick or Lame Persons, are not to be appointed Constables. 1 Vent. 344.
Persons exempted.
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.
Pen. for refusing to serve.
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.
May make a Deputy.
He is to continue in his Office One Year; if longer, upon his Petition to the County Court, he may be discharged.
Continuance in Office.
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.
His Duty in serving Precepts.
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.
Need not shew his Warrant.
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.
Pen. for Escape.
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.
Persons of one Name.
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.
Cases of Treason, or Felony.
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.
Pen. for Contempt of a Justice's Warrant.
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.
How to execute & return Warrants.
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.
Criminal Offence.
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.
May detain Offenders without Warrant.
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.
His Duty as a Minister of Justice.
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.
His Duty where a Felon escapes.
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.
To assist Justices in forcible Entries.
He may apprehend any Person disturbing the Minister in Time of Divine Service, and bring him before a Justice of Peace.
May apprehend Persons disturbing the Minister in Divine Service.
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.
May apprehend Rogues, &c.
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.
Penalties for Neglect of several Duties
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,
Constables Appointment and Duty, by the Laws of the Province.
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.
Oath.
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 |
Their Fees
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.
Coroner.
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.
Oath.
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.
As a Minister of Justice.
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.
A a judicial Officer.
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 —
Warrant to summon a Jury.
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.
Oath.
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.
Jury's Charge.
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.
Oath of a Witness.
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.
Examination.
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.
Recognizance.
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.
Warrant.
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.
Jury may hear Evidence at any Time.
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.
Coroner may find a Nusance.
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.
Misdemeanor in the Coroner.
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.
Inquisition
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.
Inquisitions how returned.
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.
Jury must inquire of the Goods, &c.
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.
Conservavators of the Peace.
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.
How appointed, and their Duty, by the Laws of this Province.
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 Body | 0 16 0 |
| For each and every Juror on such Inquisition, | 0 1 4 |
| Other Services the same as the Sheriff. |
Fees.
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.
Counties.
The Justices of every County are to purchase an Acre of Land, for building thereon a Court-House for such County.
Lands for Court-Houses.
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.
Prisons, &c. to be built.
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.
Courts, their first Establishment.
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.
Superior Courts.
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.
County Courts.
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.
Orphans Courts.
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.
Court of Chancery.
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.
Oyer and Terminer.
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.
Admiralty
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.
Claims.
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.
No Power out of their Jurisdiction.
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.
Judges not punishable
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.
As Judges
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.
Criminals how committed.
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.
Mittimus.
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.
Recognizance.
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 |
Gaolers Fees.
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:
Customs, what.
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.
4d. per Gailon on Rum, &c.
The British Parliament have, from Time to Time, hid several Duties or Imposts upon Commoditics imported into, and exported from, the American Colonies.
Duties by Parliament.
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.
Debt, cognizable before a Justice.
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.
How tried.
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 |
Constables Fees.
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.
Warrant.
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.
Judgment for Plaintiff.
| 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.
By Confession.
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.
Non-Appearance.
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.
For Defendant.
| 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.
Plaintiff not appearing.
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.
Execution against the Body.
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.
Return.
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.
Against Goods.
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.
Appeal.
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.
Stay of Execution
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.
Declaration, what.
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.
Deer when to be killed, and Penalty.
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.
Appeal.
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.
Pen. for green Deer Skins.
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.
For leaving Carcasses in the Woods
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.
What Persons may hunt.
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.
Not to hunt on other peoples Lands
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 —
Warrant.
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.
Demurrer what.
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.
Form of a Demurrer
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.
Joinder.
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.
Deodand, how caused.
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.
Protestant Dissenters, their first Rise.
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:
Act of Toleration.
They shall at the general Sessions of the Peace, take the Oaths of Allegiance and Supremacy. 1. G. c. 13.
Dissenters how qualified.
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.
Their Teachers.
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:
Quakers.
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.
Anabaptists.
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.
Dissenters Privileges.
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.
Their Teachers.
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.
Affirmation.
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.
Escape.
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.
How made
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.
Evidence.
A Man convicted of Felony, and after pardoned, or burnt in the Hand, may be a good Witness. Raym. 330, 369.
Who may be Evidences.
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,
Caution to Witnesses.
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.
Summons.
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.
Witnesses Allowance for attending.
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.
Execution
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.
Extortion.
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.
FEESBY 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.
| For | A 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 |
Governor's Fees.
| For | A 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.
| For | Signing 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 |
His Fees in Chancery.
Private Secretary's Fees.
| For | Drawing 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 |
Private Secretary's Fees.
The Secretary's Fees.
| For | Every 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 |
Secretary's Fees.
| For | Recording 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.
| For | Filing 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 |
Clerk of the Crown and Clerk of the Peace's Fees.
| For | Writing 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.
| For | Filing 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 |
Chancery Clerk's Fees.
Public Register's Fees.
| For | Registering 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 |
Public Register's Fees.
Sheriff's Feet.
| For | An 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 |
Sheriff's Fees.
| For | Summoning the Jury on a common Venire, in every Cause, | 0 0 8 |
Escheator's Fees.
| For every Inquisition and Return, | 1 12 0 |
Escheator's Fees.
Attorney General's Fees.
| For every Indictment found, or Presentment made, | 1 6 8 |
| If Bill found Ignoramus, then the Prosecutor shall pay | 0 13 4 |
| For the same in the County Court, | 0 13 4 |
| If found Ignoramus, then the Prosecutor to pay | 0 6 8 |
Attorney General's Fees.
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 |
Judge of the Admiralty's Fees.
Register's Fees in like Cases.
| For | Filing 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 |
Register's Fees.
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 |
Advocate's Fees.
The Marshal's Fees in the Court of Admiralty.
Marshal's Fees.
| For | Serving 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.
| For | Entering 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 |
Naval Officer's Fees.
Collector's Fees.
| For | Entering 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 |
Collector's Fees.
| For | Entering 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.
| For | Entering a Warrant, and certifying, | 0 2 8 |
| Surveying a Thousand Acres, and under, | 1 6 8 | |
| Every Hundred above a Thousand, | 0 1 1 |
Surveyor General's Fees.
Auditor's Fees.
| For | Auditing every Patent, | 0 5 4 |
| Entering and certifying every Warrant for Land, | 0 2 8 |
Auditor's Fees.
Receiver General's Fees.
| For a Warrant of Distress, | 0 2 8 |
Receiver General's Fees.
Coroner's Fees.
| For | Every 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 |
Coroner's Fees.
| For | The Constable, for summoning each Juror on an Inquest, | 0 0 7 |
| Other Services the same as the Sheriff. |
Clerk of the Council's Fees.
| For | Reading 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 |
Clerk of the Council's Fees.
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:
| For | Every Writ or leading Process returned to the first Court, and all subsequent Process, Appearances, Pleas, Rules, Orders, |
Clerks Fees regulated.
| For | and 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 |
| For | Granting 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 |
| For | A 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 |
THIS Word includes Petty Treason, Murder, Homicide, Burglary, Robbery, Theft, Burning of Houses, Rape, Rescous, Escape, &c. Co. Lit. 391.
Felony.
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,
How created.
| 1. | Against the Life of a Man, by | Chance-Medley, or |
| Casual Death. | ||
| Deodand. | ||
| Manslaughter. | ||
| Murder. | ||
| Self-Murder. | ||
| Self-Defence. | ||
| 2. | Against the Goods, by | Larceny. |
| Robbery. | ||
| Piracy. |
| 3. | Against the Habitation, by | Burglary. |
| Burning. | ||
| 4. | Against Public Justice, by | Breach 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,
Punishment for Felony.
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.
Accessary.
Rescuing a Felon, by taking him away from an Officer, is Felony, as well in the Rescuer, as in him that is rescued.
Rescue.
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.
Escape.
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.
Felony to kill a Felon.
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.
Constitution of Felony.
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 COVERTIS 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.
Feme Covert.
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.
Fire-Hunting.
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 —
Warrant.
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.
Forcible Entry.
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.
How punished.
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.
Remedy for forcible Entry.
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.
Forcible Detainer.
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.
Force where lawful.
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:
Stay of Restitution.
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 —
Record of Forcible Entry.
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.
Mittimus.
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 —
Precept to summon a Jury.
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.
Jury's Oath.
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.
Oath on Traverse.
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.
Inquisition.
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.
Warrant for Restitution.
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.
Indictment.
FORESTALLERS, ENGROSSERS, andREGRATORS.
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.
Forestaller
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.
Regrator.
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.
Engrosser.
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,
How punished.
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.
Forfeiture.
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.
Goods where forfeited.
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.
Punishment.
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.
For forging Inspectors Notes.
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.
Gaming.
Unlawful Games are,
| Bear-bating, | Cock-fighting, | Foot-ball, |
| Bull-baiting, | Coits, | Nine-pins, |
| Bowling, | Dice, | Tennis, |
| Cards. |
Unlawful Games.
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.
Games prohibited by Act of Assembly.
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 —
Warrant.
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.
Recognizance.
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 —
Mittimus.
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.
Gaol.
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.
Imprisonment.
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,
Homicide.
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.
Manslaughter.
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,
Non Compos Mentis.
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.
Chance Medley.
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,
Necessity.
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.
Private Necessity.
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.
Casual Death.
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.
Horses and Mares, Breed amended.
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.
Certificate
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.
Hue and Cry.
’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 —
Examination.
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.
Warrant.
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.
Mittimus.
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.
Indictment.
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.
Infant.
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.
Informers.
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 DEBTORSBY 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.
Insolvent Debtors, how discharged.
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:
Where they deliver up their Estates.
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.
Oath.
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.
Judgment
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.
JURIESJURY, 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.
Juries.
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.
Grand Jury.
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.
Bella vera.
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.
Ignoramus.
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.
Petit Jury.
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.
Trial by Parliament.
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.
By Battle.
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:
By Jury.
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.
By Fire.
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.
By Water.
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.
Challenge.
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.
Pen. for false Verdict.
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.
Jurors by the Laws of the Province.
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 PEACEARE 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.
Justices of the Peace.
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.
Their Original.
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.
Their Number.
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.
Qualification.
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.
Cautions to Justices.
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.
How appointed.
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.
Their Oath
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.
Pen. for acting before qualifying.
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.
Ministerial Office.
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.
Judicial.
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.
Inferior Courts Power.
Any one Justice may, by Warrant, try all Matters, Debts, and Demands, of Five Pounds, or under; and give Judgment and award Execution thereon.
One Justice may try 5 l.
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.
Judges of Gaol Delivery.
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.
Justices Power.
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.
Justices by Act of Parliament.
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.
By Grant.
3. By Commission; as all Justices of Peace, in their several Counties, are usually appointed at this Day.
By Commission.
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.
Their Jurisdiction.
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:
Larceny.
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.
Mixt Larceny.
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.
Who may be guilty of Larceny.
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.
What is a felonious taking.
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.
Carrying away.
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.
Personal Goods.
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.
The Value.
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.
Grand Larceny.
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.
Petit Larceny.
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,
Robbery.
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.
Larceny from the Person.
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.
Indictment.
LEVIES.LEVIES or Taxes are laid for defraying the necessary Charges of Government, and are of Three Sorts, viz.
Public Levies.
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.
Who deemed Taxables.
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.
Lists of Taxables, how obtained.
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.
Pen. on idle Persons neglecting to inlist themselves.
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.
Lists Taxables to be made.
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.
Sheriff to give Bond.
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.
And to account for the Taxes.
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.
Courts to provide Books.
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.
Sheriff to settle with the Treasurer.
No Sheriff to settle his Account with the Court, unless Five Magistrates be present.
With the Court.
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.
Distress when to be made.
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.
Insolvent Taxes not allowed any Sheriff.
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.
LIBELAN 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.
Libel.
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.
Libel against a private Person.
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.
Against the Government, or a Magistrate.
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.
Indictment.
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.
Lord's Day.
All Persons to go to Church.
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.
Pen. for shewing Goods on Sunday.
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.
For travelling, and on Butchers selling Meat.
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.
No Precept to be executed on Sunday.
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.
Pen. by the Laws of the Province, for Sabbath breaking.
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 —
Warrant.
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.
Maihem.
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.
Pen. for maiming.
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.
Pen. by the Laws of this Province.
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,
Maintenance.
1. In Courts of Justice; by maintaining one Side in any Suit depending.
How distinguished
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.
How punishable.
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.
Champerty.
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.
Penalty.
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.
Embracery.
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.
Indictment.
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.
Marriages how performed by the Laws of this Province.
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 |
Marriage Fees.
| 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.
Marriages by dissenting Clergy
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.
Mills, how to be built.
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.
Misdemeanor.
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.
What it is.
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.
Persons guilty may be committed.
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.
Misdemeanor against the State.
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.
Misprision
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.
Of Treason.
Punishment.
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.
Punishment for Misprision.
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.
Theft-bote.
The Punishment is the same in both these Cases, viz. Fine and Imprisonment. H. P. C. 130.
Punishment.
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.
Murder.
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.
Killing.
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.
The Person killed.
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.
Within the Realm.
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.
Malice forethought.
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.
Malice implied.
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.
Person killed.
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.
Malice from Circumstances.
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.
Murder distinguished from Manslaughter.
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.
Appeal of Death.
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.
Wilful Murder.
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.
Punishment.
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.
Self-Murderer.
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,
Conviction.
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.
MUTEIS 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:
Mute.
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.
Penance.
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.
Nusance.
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.
Oaths.
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?
Coronati-Oath.
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.
All Officers to take the Oaths of Office.
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
Voire Dire.
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.
Onus Probandi.
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.
Perjury.
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.
Punishment.
Subornation of Perjury is, where one Person hires or procures another wilfully to forswear himself.
Subordination of Perjury.
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.
Punishment.
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.
Oath of Allegiance
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.
Supremacy.
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.
Abjuration.
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.
Declaration against Transubstantiation
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.
Againse Popery.
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.
Quakers Affirmation.
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.
Declaration of Fidelity.
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.
Abjuration Oath.
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.
Profession of Belief.
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.
Ordinaries
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 —
Bond.
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.
Condition
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.
Orphans.
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,
Pardon.
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.
How obtained.
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,
Pickpocket.
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 —
Warrant.
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.
Pillory.
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.
Piracy.
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.
How tried
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.
Popery.
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.
Penalties to which Roman Catholicks are liable.
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.
Posse Comitatus.
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.
When, and by whom raised.
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.
By the Common Law.
PREMUNIRE.IS either the Writ so called, or the Offence for which such Writ is granted. Co. Lit. l. 2. s. 199.
Premunire
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.
Judgment.
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.
Process.
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.
Rape.
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.
Women when to complain.
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.
Who may prosecute.
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.
Penalty.
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.
Bail when allowed.
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.
Penalty for taking away Women by Force.
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.
Females under 16.
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.
Indictment.
RECOGNIZANCEIS 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.
Recognizance.
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.
Where taken by Justices.
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.
RENTFOR all Rent in Arrear, the Landlord may distrain the Goods and Chattels of the Tenant, or any other Goods found on the Premises.
Rent.
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.
How distrained for
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.
Goods clandestinely removed, may be seized.
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.
What Things may be distrained.
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.
Distress may be pounded.
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.
Cattle distrained may not be worked.
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.
Distress may be replevied.
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.
Tenant holding over.
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.
Or giving Notice to quit the Premises.
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.
Notice of Goods distrained.
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.
Appraisers Oath.
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,
Appraisement.
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.
Restitution.
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.
Riot.
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.
Number to make a Riot.
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.
Intent.
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.
The Act.
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.
Manner.
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.
Duty of Justices on Notice of Riots.
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.
Where they see it committed
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.
Pen. for neglecting to suppress Riots.
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.
Record of a Riot.
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 —
Mittimus.
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.
Condition of the Recognizance.
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.
Where the Rioters are gone.
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 —
Precept for summoning a Jury.
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.
Jurors Cath.
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.
Inquisition
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.
Roads and Ferries, how laid out, and kept.
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.
Counties where the Road Act is not in Force.
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.
Warrant.
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.
Bond.
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.
Condition
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.
Jurors Oath.
SEARCH WARRANTIT 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.
Search Warrant.
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.
Not general.
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.
When granted.
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.
Search to be made in the Day Time.
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.
Justices Duty on Return of the Warrant.
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 —
Warrant.
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.
Servants and Slaves, the Regulations of them, by the Laws of this Province.
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 paid, who shall deliver him to his Owner, he or she paying down all Fees, if the Hire be not sufficient.
When the Gaoler hires out any such Runaway, he must put an Iron Collar on his Neck, with the Letters
P. G. marked thereon; and thereafter the Gaoler shall not be liable for his Escape.
When any Runaway shall be brought before a Justice, such Justice must, by his Warrant, commit him to the next Constable, and may order him Correction, not exceeding Thirty Nine Lashes; and then to be conveyed from Constable to Constable till carried home, or to the Public Gaol of the District.
If any Constable shall refuse to convey such Runaway, and to give a Receipt for him when delivered, he shall forfeit Twenty Shillings, recoverable before any Two Justices, to the Use of the Parish. And any corporal Punishment such Runaway may receive, shall not debar his Master or Mistress from the Satisfaction by Law appointed.
If any Sheriff, or other Officer, shall let out to hire any Runaway, without Order of Court or Justices, or shall detain him longer than by Law directed, he shall forfeit Five Pounds, recoverable before any Court of Record, Half to the Churchwardens, and Half to the Informer. And if any Sheriff or Officer shall suffer any Runaway to escape, he shall be liable to the Action of the Party grieved, for Recovery of his Damages.
Constables exempt from all Public, County, and Parish Levies; and all Ferry Keepers must give immediate Passage to them and their Assistants, charged with Runaways, without Ferriage. But such Ferriages shall be paid by the Churchwardens, and levied on the Masters of such Runaways.
For Gaoler's Fees, see Title FEES.
Where Runaways, supposed to belong to other Governments, shall be committed to any Public Gaol, the Gaoler shall send a Description of such Runaway, with an Account of the Time of the Commitment, and the County where committed, to be advertised in the Virginia or South Carolina Gazette; for which the Owner shall reimburse him.
For Slaves carrying Guns on Plantations, see ARMOUR.
No Slave to go off the Plantation without Leave in Writing (Livery Slaves excepted.)
No Slave to raise any Stock, on Penalty of having such Stock sold by the Churchwardens, Half to the Use of the Parish, and the other Half to the Informer.
When Slaves run away, and lie out committing Felonies, they may, by any two Justices, be outlawed, by Proclamation, therein requiring such Slaves to return home, and impowering the Sheriff to take such Power as he thinks fit for apprehending such Slaves; which Proclamation must be published at the Door of every Church or Chappel in the County by the Clerk, immediately after Divine Service. And if any such Slaves do not return home, any Person may kill or destroy such Slaves by any Means in their Power, without Accusation or Impeachment.
If any oulawed Slave shall be killed, he shall be paid for by the Public.
If any Number of Slaves, Three or more, shall conspire, rebell, or make Insurrection, or shall plot or conspire the Murder of any Persons, they shall be adjudged Felons, and shall suffer accordingly.
Every Slave committing any capital Offence, or any other Crime or Misdemeanor, shall be committed to Gaol by any Justice of the Peace, and the Sheriff, upon such Commitment, must certify the same to any Justice, who must thereupon issue a Summons for Two or more Justices, and Four Freeholders, Owners of Slaves in the County, which said Three Justices and Four Freeholders, Owners of Slaves, are required and impowered, upon Oath, to try all Manner of Crimes and Offences committed by any Slaves, at the Court House of the County, and to take for Evidence, the Confession of the Offender, the Oath of one or more credible Witnesses, or such Testimony of Negroes, Mulattoes, or Indians, bond or free, with pregnant Circumstances, as to them seem convincing, without a Jury, and the Offender being found guilty, to pass such Judgment, according to their Discretion, as the Nature of the Crime shall require, and on such Judgment to award Execution.
All Justices in the Commission of the Peace for the County, being Owners of Slaves, may sit on the Trial of any Slave.
If any Negro, Mulatto, or Indian, shall give a false Testimony on the Trial of any Slave, the Court shall order one of his Ears to be nailed to the Pillory, there to remain one Hour, then to be cut off, and in like Manner the other Ear to be nailed for one Hour, and
then cut off; and moreover shall receive Thirty-nine Lashes on his or her bare Back at the whipping Post.
At every such Trial, the Chairman of the Court must charge every such Negro, Mulatto, or Indian Evidence, to declare the Truth.
The Master, Owner, or Overseer of any Slave, may appear at the Trial, and make what Defence he can for such Slave.
When any Slave shall be convicted by the Court, they must value such Slave, and certify the same to the next Session of Assembly, that they may make Allowance to the Owner of such Slave.
Where any Slave shall be killed in dispersing unlawful Assemblies of rebel Slaves or Conspiracies, or seizing their Arms or Ammunition, or in apprehending Runaways, or in Correction by Order of the County Court, such Court shall value such Slave, and certify it to the Assembly, that the Master may be allowed for such Slave.
If any Slave shall be killed by indifferent Persons, the Owner may have his Action for Damages against such Person.
No Slave shall be set free, except for meritorious Services, to be judged of by the County Court, and Licence had thereupon. If any Slave shall be set free contrary to this Act, the Churchwardens of the Parish, in Six Months afterwards, may sell such Slave at the next County Court, at public Vendue, for the Use of the Parish. And if any Slave so set free shall depart the Province, and afterwards return, the Churchwardens, in one Month afterwards, may sell such Slave as aforesaid.
This Act to be read by the Clerk, in open Court, twice a Year, at the Courts in or next to the Months of April and September, on Penalty of Twenty Shillings, recoverable by a Warrant from a Justice, to the Use of the Parish. And the Churchwardens of every Parish are to provide a Copy of this Act, at the Charge of the Parish.
Every County Court may lay off the County into Districts, and appoint Three Freeholders Searchers or Patrolers for each District, who shall take the following Oath, viz.
Patrolers appointed.
I A. B. do swear, that I will, as Searcher for Guns, Swords, and other Weapons, among the Slaves in my District, faithfully, and as privately as I can, discharge the Trust reposed in me, as the Law directs, to the best of my Power. So help me God.
Their Oath
Which Searchers shall Four Times a Year, or as often as they think necessary, search the Quarters and other Places where Negroes resort, for any Weapons; and may seize the same, to their own Use.
If any Searcher shall neglect his Duty, he shall forfeit Forty Shillings, to his Successor.
Searchers exempt from Taxes, serving as Constable, Jurors, in the Militia, or working on the Roads.
None but those who are liable to be appointed Constables, shall be appointed Searchers.
No Slave to hunt with Dogs in the Woods, except such as have Certificates, on Penalty of having his Dogs killed, and being whipped, by Order of a Justice.
No Slave killed on Outlawry, or capitally convicted, shall be paid for, unless it is made appear that such Slave was well cloathed, and constantly received for the preceding Year not less than one Quart of Corn per Day.
Slaves not cloathed and fed according to this Act, stealing any Provisions or Goods from any other Persons, such Persons may have their Action for Damages against the Owners of such Slaves, wherein they shall recover.
Owners of Slaves permitting them to hire themselves out, not to be allowed for such Slaves, should they be punished for any Crimes they may commit.
Nor shall Owners purchasing transported Slaves be allowed for them, should they be convicted for any Crimes, unless such Owners make Oath before the Court who shall try such Slaves, that they did not, at the Time of their purchasing, know that such Slave had been transported for any Crimes committed abroad.
No greater Allowance than Eighty Pounds shall be made by any Court, for any Slave who shall be executed by the Sentence of such Court.
Allowance for Slaves convicted.
If any Person shall wilfully kill any Slave, so that if he had been a Freeman, it would have been deemed Murder, he shall suffer Twelve Months Imprisonment; and for the second Offence shall be guilty of Murder, and suffer Death accordingly.
The Person killing such Slave, if he shall be the Property of another Person, and not his own, shall pay, on the first Conviction, to the Owner of such Slave, such Sum as the County Court shall value him at, and the Offender shall stand committed till he pay the same.
Not to extend to Slaves killed on Outlawry, or in Resistance to his Owner, or dying under moderate Correction.
When a Court is at any Time summoned to be held for the Trial of any Slave, the Justices summoned are to swear the Freeholders who are to sit on the Trial, and then the Justices in Court are to have the Oath administered to themselves, by the Clerk.
Oath to be taken by the Court held for the Trial of Slaves.
YOU, and each of you, swear, That you will well and truly try A. a Slave belonging to C. D. of — who stands charged with [here insert his Crime] and that you will a true Verdict and Sentence give, according to your Evidence. So help you God.
Oath.
Charge to be given by the Chairman of the Court, to Negroes, Mulattoes, or Indians, not being Christians, that may be produced as Evidences against any Slave on his Trial.
YOU are brought here to give Evidence against A. a Negro Slave now on his Trial for [here mention his Crime.] You are therefore in such Evidence to speak the Truth, and nothing but the Truth. And if it shall be found hereafter that you have given a false Testimony, you are to have one Ear nailed to the Pillory, there to remain one Hour, and then to be cut off; also the other Ear is then to be nailed to the Pillory, and to be cut off at the Expiration of another Hour. And also you are then to receive Thirty Nine Lashes on your bare Back, well laid on, at the Whipping Post.
Charge.
The Sentence passed by the Court on any Slave must be under their Hands and Seals, as it then becomes a Record, and is a Warrant for the Owner to receive the Valuation of such Slave.
Proclamation of Outlawry, to be issued by any Two Magistrates of the County, against outlying Slaves.
North-Carolina, — County, ss.
By A. B. and C. D. Esqrs. two of his Majesty's Justices of the Peace of the said County.
WHEREAS Complaint hath been this Day made to us, two of his Majesty's Justices of the Peace for the said County, by C. D. of this County, that a certain Negro Slave belonging to him, named — hath absented himself from his said Master's Service, and is lurking about in the County, committing many Acts of Felony. These are therefore, in his Majesty's Name, to command the said Slave forthwith to surrender himself, and return home to his said Master. And we do hereby also require the Sheriff of the said County of — to make diligent Search and Pursuit after the above mentioned Slave, and him having found, to apprehend and secure, so that he may be conveyed to his said Master, or otherwise discharged as the Law directs. And the said Sheriff is hereby impowered to raise and take with him such Power of his County as he shall think fit, for apprehending the said Slave. And we do hereby, by Virtue of an Act of Assembly of this Province concerning Servants and Slaves, intimate and declare, if the said — doth not surrender himself, and return home, immediately after the Publication of these Presents, that any Person may kill and destroy the said Slave, by such Means as he or they may think fit, without Accusation or Impeachment of any Crime or Offence for so doing, or without incurring any Penalty or Forfeiture thereby. Given under our Hands and Seals, this — Day of — and in the — Year of his Majesty's Reign.
Outlawry.
The said Slave is, &c. [here describe his Person, Cloaths, &c. and offer the Reward for apprehending him.]
SESSIONS.THE Sessions of the Peace is the Inferior Court of Pleas and Quarter Sessions, held in every County of this Province, by the Justices thereof, or any Three of them, for the Trial of all Causes whatsoever at Common Law, where the Cause of Action is above Five Pounds, and is under Twenty Pounds; also all Petit
Larcenies, Assaults, Batteries, and Trespasses, Breaches of the Peace, and other Misdemeanors; agreeable to the Commission granted to the said Justices, in Virtue of an Act of Assembly of this Province.
Sessions.
These Courts may be held Five Days, if the Business in them cannot be sooner done, and any one Justice may adjourn the Court from Day to Day for Three Days, if a Number of Justices sufficient to hold a Court do not attend; and the said Courts are held on the Days, and at the Times following: Dobbs, and New-Hanover, on the First Tuesdays in January, April, July, and October; Martin, Onslow, and Anson, on the Second Tuesdays in January, April, July, and October; Perquimons, on the Third Monday in January, April, July, and October; Edgcomb, Duplin, and Mecklenburg, on the Third Tuesdays in January, April, July, and October; Cumberland, Pitt, and Tryon; on the Fourth Tuesdays in January, April, July, and October; Granville, Bladen, and Rowan, on the First Tuesdays in February, May, August, and November; Chatham, Surry, Bute, and Bertie, on the Second Tuesdays in February, May, August, and November; Guilford, Halifax, and Tyrrell, on the Third Tuesdays in February, May, August, and November; Hertford and Orange, the Fourth Tuesdays in February, May, August, and November; Johnston, the last Tuesday in February, May, August, and November; Northampton, Wake, Hyde, and Currituck, the First Tuesday in March, June, September, and December; Craven and Pasquotank, the Second Tuesday in March, June, September, and December; Carteret, Chowan, Beaufort, and Brunswick, the Third Tuesday in March, June, September, and December: And every Adjournment shall be to the next succeeding Court in Course, and no otherwise.
Courts when held.
Persons that must give their Attendance at the Quarter Sessions, are the Justices of the Peace, the Sheriff, and his Deputies, the Constables of the County, the Gaoler, to bring thither his Prisoners, and to receive such as may be committed; all Jurors summoned by the Sheriff to attend, and all Persons bound by Recognizance to answer, or to prosecute and give Evidence.
Persons who are to attend.
And all Persons may freely attend at the Sessions for the Advancement of Public Justice, and for the Service of the King. And to this End they are, as it were, invited there by a certain Freedom of Access, and by
Protection from common Arrest; a Thing that is incident to every Court of Record, and without which Justice would be greatly hindered. So that if a Man come voluntarily to the Sessions, either to prefer a Bill of Indictment, or to give Information against another, or to tender a Fine upon an Indictment touching himself, or do come compelled to make Appearance for saving his Recognizance, and be arrested by the Sheriff upon common and original Process, in his coming thither, or during his tarrying there; it seemeth (Mr. Lambard says) that (upon Examination of the Matter under his Oath) he shall be discharged thereof by the Privilege of this Court, even as it is used in the higher Courts at Westminster. Lamb. 402.
Freedom of Access to the Sessions.
But Mr. Hawkins puts it more doubtfully, saying, it is questioned whether the Sessions, as also all Courts of Record, may not discharge any Person arrested, during his journeying to or from such Courts, or necessary Attendance there, by Process from any other Court; however it seems to be agreed, that any such Court may discharge a Person who shall be so arrested in the Face of it. 2 Haw. 5.
The Sessions are not obliged to give any Reason of their Judgment in the Orders they make, no more than any other of the Courts of Law. 2 Salk. 607.
Need not give their Reasons.
By Holt Ch. J. the Sessions is all as one Day, and the Justices may alter their Judgments at any Time whilit it continues. 2 Salk. 606.
Orders may be altered the same Sessions.
Generally, it is said, that the Justices are not punishable for what they do in Sessions. Stam. 173. Unless there be some manifest Act of Oppression, or wilful Abuse of Power. 2 Barnardlst. 249, 250.
Justices not punishable for what is done in Sessions.
The Manner of proceeding at the Quarter Sessions is as follows: First, the Justices being met, the Cryer opens the Court with proclaiming the Sessions by crying Oyes three Times, and inviting all Persons that have any Business at Court to give their Attendance. The Commission is then read.
Manner of Proceeding at the Sessions.
The Grand Jury are then called, sworn, and the Charge given to them by the Chairman. If there be any to take the Oaths, to qualify them for Places, this is then done.
Then the Recognizancers are to be called, especially those that are to prosecute and give Evidence, that the Bills may be drawn for the Grand Jury.
When the Bills are ready, the Parties bound over to give Evidence on them are sworn, and the Method is to send a Constable with them to the Grand Jury.
The Court then should proceed to hear Motions in Regard to Roads, Petitions for building Mills, or any other Matters, taking the Probate of Deeds and Wills, granting Letters of Administration, binding out Orphans, appointing Guardians, hearing Appeals from the Judgment of Justices on the Trial of Warrants, and any other Matters of the like Nature, before they go on the civil Docket.
The King's Attorney usually acquaints the Court when he is ready with the King's Suits, and a Day is set apart accordingly for Trial of them.
When they proceed on the Crown Docket, the Persons bound over at the last Sessions must be called, to try their Traverses at the present Sessions. For if a Person indicted of a Trespass, or other Misdemeanor, do appear, and plead not guilty, and traverse the Indictment, he shall enter into Recognizance to prosecute his Traverse at the next Sessions.
Proceedings on the Crown Docket.
And on the Trial of a Traverse, the Defendant must appear in the Court, at the Bar, in his proper Person, and then the Indictment is read to the Jury; and the Prosecutor and his Witnesses are called to give Evidence, and are heard: And if the Defendant is found guilty, the Court sets a Fine upon him adequate to the Offence, or other Punishment as the Law directs. Crown Cir. 50, 51.
In Case of Trespass and Assault, the Court frequently recommends the Defendant to talk with the Prosecutor, that is, to make him Amends for the Injury done him; and if the Prosecutor comes and acknowledges a Satisfaction received, the Court will set a small Fine on the Defendant, as 3 s. 4 d. or 12 d. Cro. Cir. 52.
Sometimes the Prosecutor and Defendant agroe, before the Defendant pleads to the Indictment; and then the Defendant comes into Court in his proper Person, and pleads guilty to the Indictment; and upon proving, by a subscribing Witness, a general Release executed by the Prosecutor, the Defendant submits to a small Fine, such as the Court is pleased to impose. Cro. Cir. 52.
There are frequent Prosecutions at the Sessions for trifling Assaults, in which Cases it is adviseable for a Defendant not to put himself to the Expence of trying
the Indictment, but to give Notice to the Prosecutor that he intends to plead guilty to the Indictment; in which Case the Prosecutor attends the Court with his Witnesses, and gives Evidence of the Nature of the Offence, and then the Court proceeds to fine the Defendant for his Misbehaviour towards the Prosecutor: But before this is done, the Court will admit the Defendant to call such Witnesses as he desires, and will examine them by Way of Mitigation.
The following is the Method of arraigning and trying Prisoners, either in the Superior Court, for capital Crimes, or in the Inferior Court, for Petit Larcenies, &c. When it appears what Bills are come in against the Prisoners, the Gaoler being called to set his Prisoners to the Bar, and a Way being made open from the Court to the Prisoners, that the Court, Jury, and Prisoners, may see each other, one of the Prisoners is called to: A. B. hold up thy Hand. Dalt. c. 185.
Arraignment.
Yet it is not necessary that he hold up his Hand at the Bar, or be commanded so to do; for this is only a Ceremony, for making known the Person of the Prisoner to the Court, and if he answers that he is the same Person, it is all one. 2 Haw. 308.
Holding up the Hand.
Then he is acquainted with the Effect of the Charge laid against him: Thou A. B. standest indicted, by the Name of A. B. for that thou [and so recite the Indictment.] How sayest thou, A. B. art thou guilty of this Felony [or Petit Larceny] whereof thou standest indicted, or not guilty? Dalt. c. 185.
Guilty or not guilty.
If he make no Answer at all, and will not plead, it is best to ask him three or more Times, and to tell him the Danger of standing mute, and the Grievousness of the Judgment of the peine fort et & dure and yet if he will stand mute, nothing more can be done concerning him till Judgment, but to record it. Id. See MUTE.
Mute.
But if it be for Petit Larceny only, he shall not be put to his peine fort et & dure as in Case of Grand Larceny, but he shall have the like Judgment as if he had confessed the Indictment. 2 Haw. 329.
If he pleads Privilege, it hath been adjudged, that where Proceedings are merely at the Suit of the King, as upon Indictment, or upon Information brought by the Attorney General, no Privilege shall be allowed; but where the Proceedings are at the Suit of the King and of the Party, as in Case of a common Informer, there the Defendant may have his Privilege.
If he answer that he is guilty, then the Confession is recorded, and no more done till Judgment. Dalt. c. 185.
Confession
But if he say not guilty, he is then asked, How wilt thou be tried? Dalt. c. 185.
Trial by the Country.
Which was formerly a very significant Question, tho’ it is not so now; because anciently Trial by Battle, and Trial by Ordeal, was used, as well as by the Country, or a Jury.
Therefore it is now usually answered, By God and the Country. Dalt. c. 185.
Mr. Hawkins observes, that every Person, at the Time of his Arraignment, ought to be used with all the Humanity and Gentleness which is consistent with the Nature of the Thing, and under no other Terror or Uneasiness than what proceeds from a Sense of his Guilt, and the Misfortune of his present Circumstances; and therefore ought not to be brought to the Bar in a contumelious Manner, as with his Hands tied together, or any other Mark of Ignominy and Reproach; nor even with Fetters on his Feet, unless there be some Danger of a Rescous or Escape. 2 Haw. 308.
Humanity towards the Prisoner.
And the Court ought to exhort him to answer without Fear, and to acquaint him that he shall have Justice done to him. 2 Inst. 316.
Next, the Prisoner having put himself upon his Country, the Prosecutors are called on their Recognizances, to give Evidence. Dalt. c. 185.
Witnesses called.
Then the Jury are called on their Panel, thus: You good Men that are returned and impanelled, to try the Issue joined between our Sovereign Lord the King and the Prisoner at the Bar, answer to your Names. Dalt. c. 185.
Jury called.
Which done, and they appearing a full Jury, a Proclamation is made: If any can inform the King's Attorney, or this Court, of any Treasons, Murders, Felonies, or other Misdemeanors, against A. B. the Prisoner at the Bar, let them come forth, for the Prisoner stands upon his Deliverance. Dalt. c. 185.
Proclamation.
Then it is said to the Prisoner: You Prisoner at the Bar, the Persons that you shall now hear called, are to pass upon your Trial [upon your Life and Death, if it is a capital Offence] if you will challenge them, or any of them, you must challenge them as they come to the Book to be sworn, and before they be sworn. Dalt. c. 185.
Challenge.
Then call the Foreman of the Jury, and say unto him: Lay your Hand on the Book, and look upon the Prisoner; you shall well and truly try, and true Deliverance make, between our Sovereign Lord the King, and the Prisoner at the Bar, whom you shall have in Charge, and a true Verdict give according to your Evidence. So help you God.
Jurysworn
Then call the second, and so swear him in like Manner, and so on to Twelve, and neither more nor less. 2 H. H. 293.
Then count them Twelve, and say: You good Men that are sworn, you shall understand, that A. B. now Prisoner at the Bar, stands indicted, for that he [and so recite the Indictment] To which Indictment he hath pleaded not guilty, and for his Trial hath put himself upon God and the Country, which Country you are; so that your Charge is, to inquire whether he be guilty of the Felony or Petit Larceny whereof he stands indicted, or not guilty: If you find him guilty, you shall say so, and inquire what Goods and Chattels he had at the Time of the said Felony and Petit Larceny committed, or at any Time since [or if it be for Felony above Petit Larceny, then, what Goods and Chattels, Lands and Tenements, he had at the Time of the said Felony committed, or at any Time since.] If you find him not guilty, you shall inquire, whether he did fly for it; and if you find that he fled for it, you shall inquire what Goods and Chattels he had at the Time of such Flight. If you find him not guilty, and that he did not fly for it, you shall say so, and no more; and so hear your Evidence. 2 H. H. 293, 294. Dalt. c. 185.
Jury charged.
Then call the Witnesses, and swear them, one by one, thus: The Evidence that you shall give on the Behalf of our Sovereign Lord the King, against A. B. Prisoner at the Bar, shall be the Truth, the whole Truth, and nothing but the Truth. So help you God. Dalt. c. 185.
Witnesses sworn.
When the Witnesses for the King have been examined, if the Prisoner desires that any Witnesses should be examined for him, they must be examined also on Oath.
Witnesses for the Prisoner.
On Trials of this Nature, the Prisoner shall not have Counsel allowed to him, unless a Point of Law arise, proper to be debated; nor a Copy of the Indictment. 2 Haw. 400, 402.
Prisoner not to have Counsel.
But in Offences under Felony, a Defendant may be heard by his Counsel. Wood. b. 4. c. 5.
Otherwise, the Court is to be of Counsel with the Prisoner, and ought to advise him for his Good, and not take Advantages too strictly against him. Dalt. c. 185.
Court to be of Counsel with him.
When the Prisoner hath done, and hath been heard all that he hath to say in his Defence, the Evidence is summed up by the Court to the Jury. And if they cannot agree on their Verdict at the Bar, a Bailiff must be sworn to keep the Jury, thus: You shall swear that you shall keep this Jury, without Meat, Drink, Fire, or Candle; you shall suffer none to speak to them, neither shall you speak to them yourself, but only to ask them whether they are agreed. So help you God. Id.
Evidence summed up.
The Jury coming back, the Prisoner is brought to the Bar; then the Jury is called; they appearing, say, Set A. B. to the Bar: Who being there, say, Look upon the Prisoner; how say you, is A. B. guilty of the Felony [or as the Case is] whereof he stands indicted, or not guilty? If they say not guilty, bid him down upon his Knees. If they say guilty, record it, and bid him be taken away. Then say, hearken to the Verdict as the Court hath recorded it: You say A. B. is guilty [or is not guilty] of the Felony whereof he stands indicted. Id.
Verdict.
Then make Proclamation, and say; All Manner of Persons keep Silence, whilst Judgment is giving against the Prisoner at the Bar, upon Pain of Imprisonment. Then set the Prisoner to the Bar, and give the Sentence. Id.
Judgment.
When the Court proceeds on the civil Docket, the Gentlemen of the Law being arranged at the Bar, the Clerk reads over the Docket, and impannels and swears a Jury in the first Cause ready for Trial. The Lawyer for the Plaintiff then opens the Cause to the Court and Jury, by reading his Declaration; the Evidences for the Plaintiff are then called, sworn, and their Evidence taken. The Plaintiff's Attorney then goes thro’ the Evidence, explains it to the Court, and enforces it on the Minds of the Jury. The Attorney for the Defendant then makes his Defence, calls his Witnesses, if he has any, who are sworn, and their Evidence heard. He then encounters the Plaintiff's Evidence, with their Testimony, and makes every Defence the Law will admit of. The Plaintiff's Attorney hath then a Right to conclude, and answer any new Matter that may be
started in the Course of the Pleadings. The Court will take due Care not to suffer any Thing out of the Issue to be mentioned in the Pleadings on either Side, so that the Defendant's Attorney can have no Occasion to reply; nor has he any Right, but by Permission of the Court. A little Attention and Strictness of the Court in this Point, would save much Time that is generally very idly spent in the Litigation of these Causes.
Proceedings on the civil Docket.
When the Attornies have ended their Pleadings, the Chairman, or any Justice of the Court, should sum up the Evidence, and give it in Charge to the Jury; and wherever the Law is in Favour of either Party, he may direct them to bring in their Verdict accordingly. This Method is pursued in the Superior Courts, and would have a very good Tendency, as it would more fully impress the Evidence on the Minds of the Jury, and explain to them Matters of Law they might be in Doubt of.
Jury to be charged.
If the Jury cannot agree in Court, they must retire to some convenient Place, a Constable being first sworn to keep them together till they are agreed in their Verdict. See JURIES.
Where they can't agree.
In the Litigation of civil Causes before the Inferior Courts, many Matters of Law will unavoidably arise, and various Motions from the Bar on that Subject, embarrass Justices who have not made the Law their Study; I should advise all such not to be precipitate in their Judgments, but to call on any Gentlemen of the Bar not employed in the Cause, for their Opinions, to consult any Law Books that may be in Court, or within their Power to come at; by which, and a judicious Exercise of Reason, where Cases exactly in Point cannot be found, they may always be enabled to give a tolerable Judgment. Where the Court is divided, the Matter must be adjourned till more Justices are on the Bench.
Matters of Law.
In all Opinions or Judgments to be given by the Court, the Chairman, or next eldest Justice in Commission, on the Bench, should collect the Opinions of the several Justices, and pronounce the Judgment given by the Majority of the Court.
Opinions of the Court how to be given
In all Motions from the Bar, to continue Causes, the Court will insist on Affidavit being made of the Reasons for delaying the same; and if they judge such Reasons sufficient, they will continue the Cause, otherwise
order it to be tried, as no Person should be delayed of Justice at the Caprice of his Antagonist.
Causes when to be continued.
All Motions in Arrest of Judgment must be argued the last Day of the Term the Issue is tried, unless further Time be allowed; the Defendant's Attorney serving the Plaintiff's Attorney with a Copy of the Reasons in Arrest of Judgment.
Upon any Special Verdict, or Demurrer to Evidence, the same shall be heard the next Term.
The Clerk must make a perfect Record of all Issues tried, the Pleadings and other Matters thereto relating, and enter the same in a Book kept for that Purpose.
When the Business of the Court is ended, the Clerk reads over the Minutes and Orders of Court, that any Order or Decree found defective may be amended, the Justices present then sign the several Dockets, and the Cryer adjourns the Court to the next Court in Course.
SHERIFF.THE Office and Authority of a Sheriff is of such large Extent, that it requires a separate Treatise. I shall therefore in this Place collect such general Observations only, as may prove useful or instructive to the Reader, and shew the Authority and Duty of these Officers, within the Limits of their daily Practice.
Sheriff.
He is an Officer of great Antiquity, to whom, long before the Conquest of England by the Normans, the Government, and Conservation of the Peace of his County, was committed by the King: And tho’ there was then an Earl or Alderman placed in most Counties, yet these were feudal or honorary Dignities, and the County was still subject to the immediate Jurisdiction of the Sheriff, by the King appointed for that Purpose. Seld.
Antiquity of his Office.
He was a Minister of Justice, and Chief Conservator of the Peace of his County, almost 300 Years before Justices of Peace were instituted. Co. Lit. l. 3. s. 248.
Anciently, the Power and Jurisdiction of Sheriffs, by Virtue of their Office, and the King's Commission, was very extensive: But some of these Officers having abused their Authority, it was first abridged by the Statute of Magna Charta, c. 17. whereby the Sheriff is
restrained of holding Plea of any Felony, or for any Debt or Trespass. And by subsequent Statutes, his judicial Power has been almost wholly taken away, so that at this Day his Office is chiefly ministerial.
He is, by my Lord Coke, said to have a three-fold Custody.
Three-fold Custody.
1. Of Justice: For no Suit begins, and no Process is served, but by the Sheriff; and he is to return indifferent Jurors, for Trial of Mens Lives, Liberties, and Estates.
Justice.
2. Of the Law: He is after long and chargeable Suits, to make Execution, in Cases civil or criminal, which is the Life and Fruit of the Law.
Law.
3. Of the Commonwealth: For he is principal Conservator of the Peace within his County, which is the Life and Security of the Commonwealth. Co. Lit. 168.
Commonwealth.
The Sheriff's Office is held by Virtue of the King's Commission, and determinable at his Pleasure; but the King cannot determine this Office in Part, nor abridge the Sheriff of any Thing incident or appurtenant to his Office: For the Office is entire, and it ought to continue so, without any Fraction or Diminution, unless it be by Act of Parliament. Co. 4. Rep.
Office how held.
Altho’ he has his Commission, yet he cannot execute his Office until he is sworn, but the old Sheriff must continue till another be sworn: The taking his Oath doth complete him in his Office, and till he is completed the old Sheriff is in Office; for there must not be a Vacancy, lest there be a Failure of Justice. Dalt. Off. Sher.
No Vacancy.
By this Office his Authority of a Justice of Peace is suspended; but after another Sheriff is sworn, then his Authority as a Justice remains as it was before, without his taking any of the Oaths anew; except his Name be left out of the Commission of the Peace, whereby his Authority is determined. Dalt. 12.
Office of a Justice suspended.
The Reason why his Authority of a Justice is suspended during his Sheriffalty, is, because the Sheriff is a Minister, but the Justice a Judge; both equally necessary: One to command, the other to execute; but if the same Person be Judge and Minister, it would follow, that the Sheriff ought to command himself, and that he, or his Officers, might execute his own Precept made as a Justice or Judge, which the Law will not allow. Ibid.
By the Common Law, the Sheriff is principal Conservator of the Peace within his County: He may command any Offender to find Sureties for the Peace, and bind the Parties by Recognizance, which he may take for that Purpose, by Virtue of his Office, and without any Writ or Precept to him directed by a Justice or Justices. Dalt. 3.
His Power.
He may raise the Power of his County to take, pursue, apprehend, and imprison Traitors, Felons, and Rioters; to suppress Rebellions, Insurrections, and all tumultuous or riotous Assemblies, and to preserve the Peace: Every Man, at his Command, must forthwith aid and assist him, on Penalty of being attached for his Contempt, and paying a Fine to the King. 3. H. 7. c. 1.
If he sees a Man assaulted, or if an Assault be made upon himself, he may compel the Offenders to find Sureties for the Peace, or put them in the Stocks if they refuse. 5 H. 7. c. 6.
If a Felony is committed, the Sheriff may raise Hue and Cry, without other Warrant, to pursue and apprehend the Felon; and if he resists, or will not surrender himself, so that he cannot otherwise be taken, he may be killed by any Officer, or his Assistants. Doct. & Stud. 133.
In Felony, Riot, forcible Entry, Breach of the Peace, and generally in all Cases where the King is Party, the Sheriff, or his Officers, may break open Doors or Houses, to apprehend Offenders; but the Officer ought first to acquaint the Persons in the House with the Cause of his coming, and require the Doors to be opened. Dalt. 343.
In the Execution of his Office he may arm himself, and his Assistants, with Arms offensive and defensive: And he may apprehend any Person appearing in Public Places or Meetings, armed with unusual and offensive Weapons, to the Terror of the People, seize his Arms, and carry them, together with the Offender, before a Justice of Peace. Ibid. 37.
May be armed.
He must assist the Justices in suppressing Riots, or removing a forcible Entry or Detainer, and arresting the Offenders: If they resist, or fly, and cannot otherwise be taken, they may be killed by the Sheriff, or other Officer, or any in their Company. Dalt. 343.
Assist in forcible Entries.
He must summon Persons qualified to serve on Juries, and ought to return a Panel of their Names, with the proper Addition of every Juror by him summoned. 27 Eliz. c. 7.
Jurors.
Sheriff, Under-Sheriff, or Bailiff, neglecting his Duty in summoning Juries, or excusing any one for Favour or Reward, or allowing an Exemption to any Person under 70 Years old, forfeits 20 l. to the Party grieved, or to the Prosecutor. Ibid.
If he returns any Bailiff, Coroner, or Steward, or a Servant of theirs, on a Jury, he forfeits treble Damages to the Party, and 40 l. to the King and Prosecutor. 23 H. 6. c. 10.
The Sheriff, and his Under-Sheriffs, or other Officers, must at all Times, and in all Places within his County, receive all Writs and other Process to him directed, and issued by legal Authority; and must execute the same, and make Return thereof, as to him shall be by such Writ or Precept commanded, without disputing the Validity of the Process. Doct. & Stud. 150.
Must receive all Process.
But this must be understood where the Matter of the Command is legally within the Jurisdiction of that Authority whence the Process issued, otherwise the Command is void: As if a Justice of Peace, by his Warrant, should command the Sheriff to arrest a Man for Debt, Trespass, &c. or to hang a Murderer, or Felon, or where he requires the Officer to do any Thing in a Matter which is not by Law cognizable before him, the Officer must not execute such erroneous Process, and is punishable if he does. Co. 6, 54.
A sworn Officer need not shew his Warrant for an Arrest; ’tis sufficient if he declares the Contents to the Party arrested: But a Person specially deputed, who is not a known Officer, ought to produce his Warrant to the Party, if required. 14 H. 7. c. 9. Co. 9. 69.
Need not shew his Warrant.
If the old Sheriff executes any Writ or Precept, after he is removed, and another Sheriff appointed and sworn, the Party grieved may have his Action for false Imprisonment, or Recovery of Damages. Crompt. 205.
False Imprisonment.
If the Sheriff arrests any Person in any civil Action, or makes a Warrant for that Purpose to his Deputy, without having the original Process, upon Conviction, he shall be committed till he pay the Party grieved all his Costs and Damages, and 10 l. besides, and 20 l. to the King. 43 Eliz. c. 6.
Pen. serving Process without the Original.
Every Sheriff is chargeable for the safe keeping of all Prisoners committed to the Gaol of his County, and must answer for his Gaolers; but the Gaoler who has a Prisoner actually in his Custody, shall be liable for wilful Escape, if he has wherewith to satisfy; and if he suffers a Felon to escape, he shall be hanged. Cro. Eliz.
Answerable for Prisoners.
If a Prisoner for Treason or Felony breaks away from the Sheriff or Officer charged with his Commitment to Gaol, and makes Resistance, or flies, he may be killed by his Conductors, if they cannot otherwise retake him. Dalt. 355.
So likewise where a Prisoner in Gaol attempting to escape, assaults his Gaoler, but is killed by him, ’tis justifiable.
And if the Sheriff, or any of his Officers, are killed in the legal Execution of their Duty, or Office, ’tis Murder. Ibid. 343.
If any Person after he is arrested makes Resistance, or assaults the Officer, he may justify the beating such unruly Prisoner, and put him in the Stocks, or otherwise secure him, till he can procure sufficient Help to carry him to Prison. 21 H. 7. c. 39.
If the Party arrested, and resisting, be killed by the Officer, ’tis justifiable. Doct. & Stud. 133. Crompt. 24, 6. But Mr. Dalton questions this. Pag. 355.
Where the Sheriff is of Kin to either Party, Process may be directed to the Coroner. 13 Ed. 4. c. 6.
Sheriff of Kin.
So likewise all Process against the Sheriff himself, or his Under-Sheriff, or Bailiff, must be executed by the Coroner.
Sheriff or Officer serving Execution or Attachment upon Goods and Chattels, ought to be cautious in his Proceedings, and to seize such Goods or Chattels only as plainly appear to be the Estate of the Debtor; for the Officer is bound, at his Peril, to take Knowledge of the Property of Goods by him taken in Execution, or attached: If he sells, or delivers them to the Plaintiff, and upon Trial afterwards it appears that the Debtor had no Property in the Goods, but a bare Possession only, the right Owner shall recover the full Value of his Goods so taken, and Costs of Suit, against the Officer; and on the other Side, where the Sheriff returns that the Defendant has no Goods, &c. but afterwards it appears that the Officer might have seized the Defendant's Estate, but refused so to do, the Plaintiff
may have Action against the Sheriff, for his false Return. Dalt. Off. Sher. 60, &c.
Caution.
Upon an Execution for 20 l. if the Sheriff takes one entire Chattel, and fells it for 40 l. and returns the Execution, with the 20 l. surplus, in Court, he may detain this Overplus till the Defendant demands it of him, for he is not bound to search out the Defendant: But if the Execution be for 40 s. and the Officer, by Force thereof, seizes divers Goods and Chattels, to the Value of 20 or 30 l. and sells all, the Defendant may recover his Damages, by Action of Trespass, against the Sheriff. Noy 59.
Execution
Sale of Goods taken in Execution by the Sheriff or Officer, shall be good to the Purchaser, altho’ the Judgment be afterwards reversed. Dyer 363.
If the Sheriff returns, that he has levied the Debt and Costs, as to him is commanded, which he has ready in Court, &c. but yet the Plaintiff is not paid, and a new Sheriff is made before the Plaintiff's Debt is satisfied, he may have a Scire Facias against the old Sheriff, and Execution thereupon. 9 Edw. 4. 50.
Old Sheriff liable.
When a Sheriff dies in his Office, his Successor must take Notice, at his Peril, of all Prisoners in his County Gaol, charged in Execution: Because there is none to make Delivery of them, or to inform him who is in Execution, who not; and it is no Detriment to the Sheriff to keep them safe, till he has Knowledge of all the Executions. Co. 3. 73. b.
Prisoners.
Altho’ the Sheriff may not break open any House, to execute a Writ of Fieri Facias, or to serve an Execution at the Suit of any private Person, yet if the Officer enters, the Doors being open, and executes his Process, but is disturbed or assaulted by the Persons in the House, the Sheriff may break it open to rescue his Officer, and to take Execution. 2 Cro. 555.
Doors may be broke open.
Upon Recovery in a real Action, and Execution thereof directed to the Sheriff, by Writ of Habere facias Seisinam, or Habere facias Possessionem, commanding him to put the Plaintiff into actual Possession, he may break the House, and deliver Seifin and Possession thereof to the Party in the Writ named. F. N. B. 220.
Every Sheriff must make true and perfect Return, under his Hand, of every Writ, Precept, or other Process to him directed: If he makes a false or insufficient Return, he shall be liable to the Action of the Party grieved. Co. 5, 90. & 11, 40.
False Return.
No Person can make legal Return of Writ or Process, but he only to whom it is directed, and that is the Sheriff. Bulst. 70.
If upon an Execution against the Body of the Defendant, the Sheriff returns, that he has taken the Body, &c. he is chargeable for an Escape, if he has not the Defendant's Body at the Day of Return. Br. 107.
Sheriff chargeable.
So likewise if he returns upon an Execution against the Estate, that he has levied the Debt, he is chargeable for the Money, if he has it not ready at the Day of Return, and the Plaintiff then unpaid.
But if the Execution is duly served, and the Plaintiff's Demand satisfied, the Return is not material. Co. 4, 67.
Every Return ought to answer the Substance of the Writ; the Omission of any material Part makes the Return vicious, and the Sheriff liable for Damages. Co. 3, 15.
Return.
If the Sheriff fails to return the original Writ of Arrest, he is liable to the Action of the Party arrested, for false Imprisonment, and to the Plaintiff, for Damages. Lit. 4. 18 Edw. 4. c. 9.
And if he levies Money upon an Execution, but neither returns the Writ, nor pays the Plaintiff, he is chargeable to the Plaintiff in an Action of Account, and to the Defendant for Trespass: But the Plaintiff may take new Execution against the Defendant, and he must seek his Remedy against the Sheriff. Co. 5, 90.
Tho’ Execution against the Body or Goods of the Defendant, duly executed, and the Plaintiff satisfied, is valid notwithstanding the Writ be not returned; yet in Execution, by Elegit, against the Lands, it is otherwise, for this must be returned and filed upon Record, because the Value of the Lands extended must be found by Inquisition of Twelve Men, upon Oath, by them certified under their Hands and Seals, and not by the Sheriff only: And if such Inquisition be not returned, the Execution is voidable, and of no Effect. Co. 5, 30.
Elegit.
If the Party arrested in any personal Action tenders sufficient Bail for his Appearance, he shall be bailed. 23 H. 6. c. 10.
Bail.
Where the Sheriff takes a Bail Bond, of Two good Men, of visible Estates in his County, at the Time of
taking the Bond, and afterwards they become insolvent, yet the Sheriff shall be excused; for he is obliged to let to Bail, upon good Security, and this Security was good when taken, tho’ it proved insolvent afterwards. Pr. Reg. 587.
He may appoint one or more Under-Sheriffs to be his Deputies, to execute his Office in his Name and Stead; which they may do in all Cases, such only excepted where the Law requires the personal Service of the Sheriff himself. Hob. 13.
Under-Sheriffs.
He may remove an Under-Sheriff when he thinks fit, notwithstanding any Agreement or Contract to the contrary; because neither the Common Law, nor any Statute, allow a Deputy in this Office, so as to make his Commission irrevocable. Ibid.
The Under-Sheriff must be sworn. His Oath is appointed by the Statute 27 Eliz. That he shall duly execute his Office, so long as he continues therein.
But the Sheriff cannot make a Deputy, and abridge him in his Office: A Condition, that he shall not serve Executions above 20 l. is void, and so is any other Condition to restrain him in the Execution of his Duty. The Sheriff may remove him at Pleasure, but the Office is entire, and cannot be abridged. Hob. 13.
Every Sheriff must answer for the Misdemeanors of his Under-Sheriffs, or Bailiffs: For they are his Servants, and ought to be under his Government; and therefore he must take good Security for their just and faithful Execution of their Duty. Pr. Reg. 588.
When a new Sheriff is sworn, the old Sheriff must deliver over to him all Prisoners in his Custody, charged in Execution, or imprisoned by Writ or other Warrant; as likewise all Process received by the old Sheriff, but not executed, or not returned by him: Such Delivery, and the Receipt of the new Sheriff, discharges his Predecessor.
Prisoners turned over.
If a Sheriff dies, or is removed before the usual Time, Process may be stayed, till another Sheriff be elected and sworn. 12 Edw. 4. cad. 1. 22 H. 6. cap. 51.
I shall now relate the Appointment and Duty of Sheriffs by the Laws of this Province.
Every Inferior Court, between the First Day of March and the First Day of June, annually, must recommend to the Governor, Three Persons of their
County, Freeholders, and fit to execute the Office of Sheriff, one of which the Governor must commissionate to serve the Office of Sheriff the ensuing Year. If the Court neglects, or if the Persons recommended shall refuse to serve, and neglect to apply for a Commission in Six Weaks, the Governor may appoint any Freeholder of the County, of sufficient Abilities, to be Sheriff; or if no such Person applies before the next Court, the Governor may appoint any Person Sheriff of the County. If any Sheriff should die in his Sheriffalty, the Governor may appoint one of the Survivors who was recommended with such Sheriff. And when a Sheriff appointed upon Neglect, shall die, any Freeholder of Circumstances may be appointed.
Sheriffs Duty by the Laws of this Province.
No Sheriff shall serve more than Two Years, unless he produces a Certificate from the Treasurer of his having paid the Public Taxes. If any Court shall recommend any such Sheriff, every Justice joining in such Recommendation shall forfeit Fifty Pounds, to any Person suing for the same, recoverable before any Court.
No Person compelled to serve as Sheriff more than One Year, and until the next succeeding Court. And every Sheriff, before he executes his Office, must before his County Court, take the Public Oaths, subscribe the Test, and take the following Oath, viz.
I A. B. do solemnly swear, that I will truly and faithfully execute the Office of Sheriff of the County of — to the best of my Knowledge and Ability, agreeable to Law; and that I will not take, accept, or receive, directly or indirectly, any Bribe, Gift, Fee, or Reward, whatsoever, for returning any Man to serve as a Juror on any Jury, or for making any false Return of Process to me directed, during my Continuance in my said Office.
Sheriffs Oath.
So help me God.
And must also give Bond before the Court, with two good Sureties, in the Penalty of One Thousand Pounds Sterling, with this Condition, viz.
THE Condition of the above Obligation is such, That whereas the above named A. B. is constituted and appointed Sheriff of the County of — during Pleasure, by a Commission from the Governor, under the Seal of this Province, dated the — Day
of — last past: If therefore the said A. B. shall well and truly execute, and due Return make, of all Process and Precepts to him directed; and pay and satisfy all Fees and Sums of Money by him received, or levied by Virtue of any such Process, into the proper Office, by which the same, by the Tenor thereof, ought to be paid, or to the Person or Persons to whom the same are due, his or their Executors, Administrators, Attornies, or Agents; and in all other Things well, truly, and faithfully execute the said Office of Sheriff, during his Continuance therein; then the above Obligation to be void, otherwise to remain in full Force and Virtue.
Condition of his Bond.
Also one other Bond, before their Court, with the like Securities, and in the like Sum, with this Condition, viz.
THE Condition of the above Obligation is such, That whereas the above bound A. B. is constituted and appointed Sheriff of the County of — by Commission from the Governor, under the Seal of the Province, dated the — Day of — last past: If therefore the said A. B. shall well and truly collect and receive all such Public Taxes and Dues as are, or which shall be appointed by Act of Assembly, to be paid by the taxable Persons within his Bailiwick, during his continuing Sheriff thereof; and duly account for, and pay the same to such Person or Persons, and at such Times, as by Law are or shall be limited and directed; then the above Obligation to be void and of no Effect, otherwise to remain in full Force and Virtue.
Condition of another Bond.
Which Bonds every Court must take, and have them recorded; the first payable to his Majesty, his Heirs and Successors, which any Person injured may sue, and recover their Damages sustained. The last Bond is to be made payable to the Governor, and may be sued by the Treasurer of the District, and all such Damages recovered as the Public may sustain. And such Suits may be commenced till the whole Penalty of the Bond shall be recovered.
Verdict for any Sheriff, or his Securities, they shall recover their Costs.
If any Sheriff shall refuse to serve, he shall forfeit Ten Pounds, to the Public, recoverable, in the Name of the Governor, by the Treasurer of the District.
Not to extend to Persons appointed Sheriffs, who make Oath, that they cannot get Security.
No Member of Council obliged to serve as Sheriff.
If any Sheriff shall neglect to pay the Public Taxes, the Superior Court of the District, on Motion of the Treasurer, may give Judgment against him for all Public Monies he may owe, and award Execution thereupon; such Sheriff first having Ten Days previous Notice.
Public Monies how recovered.
In all such Suits, Treasurers may give in Evidence attested Copies of the Lists of Taxables of the County.
If any such Sheriffs have settled with their County Courts, and such Settlement is attested by Five Justices, they may give it in Evidence.
Clerk of every Inferior Court to give the Treasurer a List of Taxables by the First Day of March, on Penalty of Twenty Pounds, to the Public.
List of Taxables to the Treasurer.
Sheriffs to serve all Precepts to them directed, and delivered within Twenty Days from the Sitting of the Court, in their County, or any Bay, River, or Creek, adjoining, and make due Return, on Penalty of Fifty Pounds, payable to the Party grieved, by Order of the Court, on Motion; unless he can shew sufficient Cause to the next Court. For every false Return the Sheriff shall pay Fifty Pounds, Half to the Party grieved, and the other Half to the Informer, recoverable in the Superior Court; and shall be further liable to an Action for Damages. No Sheriff shall return non est inventus, till he has been at the Party's House. And where the Defendant is an Inhabitant of another County, the Case to be returned truly, and an Alias to issue to that County, and no Variance of Addition deemed Error in Abatement. Where no Sheriff in any County, the Coroner to act, and to be under the same Rules as the Sheriff.
Precepts how to be served.
No Process to be executed on Sunday, or on any Person attending his Duty at Muster, Elections of Burgesses or Vestrymen, or on Persons attending as Evidences or Jurors; unless for criminal Matters.
Every Sheriff levying Executions, must give a Bill of his Fees, and underneath, the Clerk's, Attorney's, and other indorsed Fees, separately, and give a Receipt for
the same, and shall indorse the Amount of his own Fees on the Execution, to be entered on the Execution Docket; for which Copy the Sheriff may demand One Shilling. If any Sheriff, or other Officer, levying Execuions, shall neglect herein, he shall pay Ten Pounds, to any Person suing for the same.
Executions.
Sheriffs to take all Bail Bonds payable to themselves, to be discharged by the Prisoner's Appearance at the Day and Place appointed; and to take no other Fee for ex officio Services, than Ten Pounds, and the Allowance by Law for other Services.
Bail Bonds.
Sheriffs to account, upon Oath, for all uninlisted Taxables.
Taxables.
Sheriffs may distrain Slaves, Goods and Chattels, for Taxes, if not paid by the Tenth Day of March; and if the Taxes are not paid within Five Days after such Distress, the Sheriff may sell the same, first advertising the same at the Court-House; which Sale must not be in less than Three, nor more than Ten Days after Notice.
If any Sheriff shall be removed before finishing his Collection, he shall still be impowered to finish it. And where he shall die before finishing, his Executors or Administrators may finish the Collection. And where Sheriffs are removed before finishing their Collections, their Power of finishing the same shall still continue.
No Sheriff to make unreasonable Distress, or to seize Slaves, if other Distress can be had; on Penalty of the Action of the Party grieved, who shall recover full Costs, although the Damages do not exceed Twenty Five Shillings.
Where Prisoners escape, any Justice may grant a Warrant against them, upon Oath made thereof by the Sheriff or Gaoler, commanding all Officers to apprehend such Prisoners, and being taken, to convey them again to Prison; which Warrant the Sheriff must obey, and receive the Prisoner, and give a Receipt for him, and make Return of the Execution of such Warrant to Court; and if such Prisoner was charged in Execution, he shall be detained, without Bail or Mainprize, till the Debt is paid; and if upon Mesne Process, the Sheriff shall safe keep him, and make Return of the Execution of the Warrant to the Court where the Prisoner was arrested, and the Court, upon the Plaintiff's filing his Declaration, and entering the Defendant's Appearance,
may give Judgment; unless he give special Bail, and plead to Issue, and thereupon such Prisoner shall be discharged. And where any such Prisoner, shall escape, and be charged with any capital Crime, and removed to the Gaol of any Superior Court, he shall be charged with all Causes wherewith he stood charged in the Gaol from whence he escaped.
Escape.
If any Sheriff shall serve an Execution against any Person, and actually receive the Money, and shall not pay it to the proper Person, or into the Office, the Court may grant Judgment against such Sheriff for the same, and award Execution thereon, he having Ten Days Notice; and where any Sheriff shall be removed from Office, Proceedings may be had against him in the same Manner as if he had not been removed.
Execution not paid.
Where the Sheriff shall serve an Execution, and suffer the Person to escape, and such Sheriff, or the Person taking out such Execution, shall die before Recovery, such Person, or his Executors or Administrators, may maintain an Action against such Sheriff, his Executors or Administrators, for the Recovery of such Sum mentioned in such Execution.
Escape by the Sheriff.
The Delivery or turning over Prisoners from the old Sheriff to the new, according to the Practice in England, by Indenture, or the entering upon Record the Names of the Prisoners, and the Causes of their Commitment, delivered over to the new Sheriff, shall be sufficient to discharge the late Sheriff.
Prisoners turned over
All Sheriffs and Collectors of Public Taxes, shall annually, at the first Court of their Counties after the first Day of January, deliver in to the Court, a fair stated Account, signed by the Treasurer, of all Public Monies they had received the Year preceding, with the Amount they had paid, and the Balance, if any, due, which Account shall be recorded on the Minutes of the Court, by the Clerk, for which he may take Five Shillings; and all Sheriffs failing herein, shall lose all the Commissions he would otherwise be intitled to.
Sheriffs Accounts.
All Sheriffs and Collectors removed from their Offices, shall obtain from the Treasurer a fair and regular Account, signed by him, of all Public Monies received, with the Payments made, and the Balance due, which shall be delivered in to the Court held immediately after the Qualification of their Successors, to be entered upon the Minutes as aforesaid. And every such Sheriff failing
herein, shall forfeit all his Commissions as aforesaid.
The Clerk of every County Court, within Forty Days, shall transmit such Accounts to the Governor, on Penalty of Five Pounds.
No Person elected a Member of Assembly, shall serve as Sheriff.
The Justices of every County may settle with the Sheriff at any Court held between the First Day of October and the Tenth Day of April.
When settled.
Where any County is destitute of a Sheriff, the Governor may appoint any Freeholder of such County Collector of the Public Taxes, he first giving Bond, as the Sheriff must have done; and he is impowered to make Distress in the same Manner.
Where no Sheriff.
Where Sheriffs remove themselves out of the Province, without paying the Public Monies, the Securities of such Sheriffs, their Heirs, Executors, or Administrators, shall have full Power to collect all Arrears of Taxes due, and which ought to have been collected by such Sheriff, and to make Distress for the same.
Securities may collect Taxes.
Not to make Distress till one Month's Notice be given, at the Court-House, and Chapels of the County.
No Court to allow any Sheriff more insolvent Taxes than he shall name and swear to, in a List by him to be delivered to the Court, which the Clerk shall set up in the Court-House, on Penalty of Ten Pounds, recoverable in the Inferior Court, Half to the Parish, and Half to the Informer; for which Service the Clerk shall be allowed Twenty Shillings.
Insolvents.
If any Sheriff shall return the Name of any Person insolvent who is not listed, or has paid his Tax for that Year, or shall collect his Tax for the Year he was returned insolvent, he shall forfeit Twenty Pounds, Half to the Parish, and Half to the Party injured.
For other Parts of a Sheriff's Duty, and his Fees, see CHURCHWARDENS, DEER, FEES, LEVIES, SERVANTS and SLAVES.
Form of a Sheriff's Bail Bond.
NORTH-CAROLINA, — County, ss.
KNOW all Men, by these Presents, That — all of the County and Province aforesaid, are held and firmly bound unto — High-Sheriff of the County aforesaid, his Heirs, Executors, Administrators, or Assigns, in
the full Sum of — To which Payment well and truly to be made and done, we bind ourselves, our Heirs, Executors, and Administrators, jointly and severally, firmly by these Presents. Sealed with our Seals, and dated this — Day of — Anno Dom. —
Bail Bond.
THE Condition of this Obligation is such, That if the above bounden — do and shall make his personal Appearance before — to be held for the — of — at the Court-House in — on the — next; then and there to answer — and there stand to and abide by the Judgment of the said Court, and not depart the same without Licence first had and obtained, that then the above Obligation to be void and of none Effect; or else to be of full Force and Virtue.
Condition
SHIPS.EVERY Ship or Vessel that shall arrive into this Province thro’ the Inlets of Occacock and Roanoke, and enter in the Port of Currituck, shall pay to the Collector of the Port the following Fees, viz.
Ships.
| For every Vessel of Fifty Tons, or under, | 0 10 0 |
| For every Vessel above Fifty Tons, and under One Hundred, | 1 0 0 |
| For every Vessel above One Hundred Tons, | 1 10 0 |
Stakage Fees of Currituck, &c.
The like Taxes are to be paid by all Ships or Vessels entering in the Ports of Bath, Roanoke, and Beaufort.
Which Taxes are to be applied towards defraying the Expence of erecting Stakes and Beacons in the said Districts.
Receivers of the Tax have Power to go on Board any Vessel and measure her, and to examine the Master on Oath concerning her Burthen.
Every Master of a Vessel throwing overboard into any Channel or River, any Ballast, or Oyster Shells, to forfeit One Hundred Pounds for every Offence. And if any Person or Persons shall wilfully pull down or remove any Beacon, Stake, or other Mark, erected for the Facility of Navigation, they shall forfeit Fifty Pounds; recoverable in the Superior Court, Half to the
Informer, and Half to the Use of staking the Chanels.
Pen. for throwing Ballast overboard.
Every Ship or Vessel entering in at Old TopsailInlet, or going either Way thro’ Core Sound, from Harbour Island to Harkers Island, shall pay the following Taxes, viz.
| For every Vessel of Thirty, or under Fifty Tons, | 0 10 0 |
| For every Vessel of Fifty, and under One Hundred Tons, or upwards, | 1 0 0 |
| For every Craft going thro’ Core Sound, drawing Three, and under Four Feet Water, | 0 4 0 |
| For every Vessel drawing Four, and under Five Feet, | 0 6 8 |
| For every Vessel drawing Five Feet, and upwards, | 0 10 0 |
Fees of Core Sound.
Collectors not to clear out Vessels till the Master shall produce a Certificate from the Receiver of the Tax paid.
If any Vessel shall go out at the Inlet, or pass thro’ Core Sound, before the Tax paid, the Master shall forfeit Twenty Pounds, recoverable by the Commissioners, one Third to the Informer, the other two Thirds to the Benefit of the Navigation.
Pen. for not paying.
The Master of every Vessel coming in at any Inlet in this Province, except Cape Fear, before he proceeds any further with his said Vessel, must go on Shore, and make Oath before some Officer of the Customs, whether he hath any contagious Distemper on Board, on Penalty of Fifty Pounds; and the Pilots attending the Inlets, are not to proceed any further than to some convenient Place, till the Master goes on Shore, and makes Oath as aforesaid, on Penalty of Fifty Pounds.
Infectious Distempers.
Masters of Vessels may proceed to some convenient Place, to resort to an Officer of the Customs.
If any Vessel shall have any infectious Distemper on Board, the Officer of the Customs may order her to lie at such Place as he thinks proper, until further Orders shall be given by the Governor, or any Two Justices, who are to give such Orders for such Vessel's performing Quarentine at such Place as they may think proper. If any Master of a Vessel shall not perform such Quarentine, he shall forfeit Five Hundred Pounds, recoverable in the Superior Court, Half to the Informer, and Half to the Contingencies of Government.
If any Person shall come on Shore before such Vessel shall have performed her Quarentine, without Licence from the Governor or Two Justices, he forfeits Fifty Pounds. And if any Person, not belonging to such Vessel, shall go on Board before her Quarentine shall be fully performed, without Licence as aforesaid, such Person shall stay on Board during the Time, on Penalty of Fifty Pounds.
If any Master of such Vessel shall suffer any Goods to be landed, or put into any other Vessel or Boat, during the Time of Quarentine, he shall forfeit Two Hundred Pounds.
The Commander of Fort Johnston, at the Mouth of Cape FearRiver, is impowered too bring to all Vessels bound into the said River, and to administer an Oath to the Captain concerning the Health of his Crew, and whether there was any contagious Distemper at the Place from whence he came; and if any Person on Board has the Smallpox, or other contagious Distemper, or there is Reason to suspect any Person on Board is infected, the said Commander shall order the Master of such Vessel to moor her near Battery Island, and perform Forty Days Quarentine, and must prevent all Persons from going to, or coming from her (Persons carrying Provisions excepted) until permitted by Order from the Governor, or Three Justices of the Counties of New-Hanover or Brunswick.
Infectious Distempers at Cape Fear.
If no Distemper on Board any Vessel, the Commander of the Fort to give the Captain a Bill of Health, directed to the Collector or other Officer of the Customs. And the Commander of the Fort may take of the Captain for such Bill of Health, Ten Shillings.
Fee for Bill of Health.
If any Master of a Vessel so moored, shall come on Shore, or suffer any Person to come on Shore (except on BatteryIsland) he shall forfeit Five Hundred Pounds, one Fourth to the Informer, and the other Three Fourths to the Commissioners of the Fort.
No Collector or Naval Officer shall enter any Vessel without such Bill of Health, on Penalty on One Hundred Pounds, to the Commissioners of the Fort.
Where any Vessel hath performed Quarentine, her Hold must be washed with Vinegar, and smoaked with Brimstone.
Every Master of a Vessel coming into Cape-Fear River, must take the following Oath before the Collector, viz.
I A. B. do solemnly swear, that I have not, nor will I, directly or indirectly, cause or suffer any Kind of Ballast brought in by my Vessel, to be thrown into any Part of the Channel of Cape FearRiver; but that the same shall be landed, or thrown entirely above low Water Mark.
Captain's Oath.
So help me God.
If any Ballast shall be thrown into any Part of the Channel of the River, by any Sailor or other Person, the Master of the Vessel shall forfeit Two Hundred Pounds, Half to the Prosecutor, and Half to the Commissioners of the Pilotage. Suit to be brought within Twelve Months.
Pen. for throwing overboard Ballast.
If any Pilot shall suffer Ballast to be thrown overboard in Cape Fear River, and shall not within Ten Days give Notice thereof, he shall forfeit his Branch, and be rendered incapable of serving as Pilot.
Every Master of a Ship or Vessel coming into this Province, must, within Four Days after his Arrival, and before he land any Goods, enter into Bond, to the Governor, in the Naval Office, with one sufficient Freeholder or known Merchant, in the Sum of Five Hundred Pounds, with Condition, that he will not carry any Person out of the Province without a Ticket from the Naval Officer, and signed by the Governor; nor carry out of the Province any Servant or Slave, nor depart himself without Leave, on Penalty of Fifty Pounds.
Plantation Bond.
For Collectors and Naval Officers Fees, for entering and clearing Vessels, see FEES.
Collectors Fees.
Pilots Fees
For every Ship or Vessel from the Outside of Occacock Bar, into Beacon IslandRoad, Two Shillings per Foot, for every Vessel that draws Nine Feet Water, or less. And for every Vessel that draws more than Nine, and under Ten Feet, Two Shillings and Six Pence per Foot. And for every Vessel drawing Ten Feet, or upwards, Three Shillings per Foot.
Pilots Fees
For every Vessel from Beacon Island Road, to Bath Town, that draws Six Feet Water, Thirty Shillings. And for every Vessel that draws above Six Feet, Six Shillings per Foot.
For every Vessel from Beacon Island Road, to Edenton, that draws Six Feet Water, or less, Three Pounds. And for every Vessel that draws above Six Feet, Ten Shillings per Foot.
For every Vessel from Beacon Island Road, to Newbern, that draws Six Feet Water, or less, Thirty Six Shillings. And for every Vessel that draws above Six Feet Water, Seven Shillings per Foot.
Pilots at Occacock, that have decked Boats, and take Charge of Vessels at Sea, are allowed the following Fees, viz.
For every Vessel that draws Nine Feet Water, from the Outside of the Bar, to Beacon Island Road, or any other Harbour where Vessels usually ride, Four Shillings per Foot. And for every Vessel drawing Nine Feet, or upwards, Five Shillings per Foot.
Where Pilots board Vessels at Sea, they are allowed full Pilotage, tho’ the Master of the Vessel should refuse to take them. And when any Pilot is carried to Sea, the Master of the Vessel shall pay him Two Shillings and Eight Pence per Day, while detained on Board.
Pilots neglecting to go out to Vessels that make Signals, to forfeit Twenty Pounds.
All Pilots are to give Bond to the Commissioners, in One Hundred Pounds, before they obtain a Branch; and if they pilot any Vessel without a Warrant from the Commissioners, they forfeit Twenty Pounds.
Pilots of Cape Fear River may take the following Fees, for piloting Vessels over the Bar to Brunswick, and back again to Sea, viz.
Cape Fear Pilots.
| For a Vessel when loaded, drawing 6 Feet Water, the Sum of | 2 10 0 |
| For a Vessel when loaded, drawing 7 Feet, | 2 15 0 |
| For a Vessel when loaded, drawing 8 Feet, | 3 0 0 |
| For a Vessel when loaded, drawing 9 Feet, | 3 10 0 |
| For a Vessel when loaded, drawing 10 Feet, | 3 15 0 |
| For a Vessel when loaded, drawing 11 Feet, | 4 10 0 |
| For a Vessel when loaded, drawing 12 Feet, | 5 10 0 |
| For a Vessel when loaded, drawing 13 Feet, | 6 10 0 |
| For a Vessel when loaded, drawing 14 Feet, | 7 10 0 |
| For a Vessel when loaded, drawing 15 Feet, | 8 10 0 |
| For a Vessel when loaded, drawing 16 Feet, | 9 10 0 |
| For a Vessel when loaded, drawing 17 Feet, | 11 0 0 |
| For a Vessel when loaded, drawing 18 Feet, | 13 0 0 |
For piloting Vessels from Brunswick to Wilmington, and back again, one Half of the above Fees; and for piloting to the Flats, and back to Brunswick, one Fourth of the Fees.
Pilots to give Bond, in Two Hundred Pounds, to the Commissioners; and where they detain any Vessel after having Notice that she is ready, they forfeit Thirty Shillings for every Day she waits for such Pilot. And where they wait for any Vessel, the Master detaining them must pay them 8 s. per Day.
Their Bond.
Every Branch Pilot of Cape Fear River must take the following Oath, viz.
I A. B. do solemnly swear, that I am not at this Time, neither will I at any Time hereafter, during my Continuance as a Branch Pilot for Cape Fear River, be concerned in any Kind of Partnership with more than Three Branch Pilots, so as to receive any Share or Benefit therefrom to myself or Family. So help me God.
Oath.
The Captain of Fort Johnston may order the Pilots to Sea, when he has Reason to believe Vessels may be on the Coast, and if they refuse to go, they may be suspended. The Pilots must keep decked Boats, or be concerned with those that do.
May be ordered to Sea.
STATUTES.THESE are Acts of the British Parliament, made from Time to Time, declaring the Laws, Customs, and Constitution of Great Britain.
Statutes.
Of all the Statutes of Great Britain, that called Magna Charta, or the Great Charter of Liberties, is of the most Importance for the Protection of the People in their just Rights and Liberties, of which Mr. Jacob, in his Law Dictionary, gives the following Account:
Magna Charta.
Magna Charta, or the Great Charter of Liberties, was granted in the 9th Year of King Hen. 3. It is so called, either for the Excellency of the Laws therein contained, or because there was another Charter called the Charter of the Forest, established with it, which was the less of the two; or in Regard of the great Wars and Troubles in the obtaining it, and the remarkable Solemnity in denouncing Excommunication and Anathema's against the Breakers thereof. King Edward the Confessor granted to the Church and State several Privileges and Liberties by Charter; and some were granted
by the Charter of King Hen. 1. Afterwards King Stephen and King Hen. 2. confirmed the Charter of Hen. 1. and King Rich. 1. took an Oath at his Coronation to observe all just Laws, which was an implicit Confirmation of that Charter; and King John took the like Oath. This King likewise, after a Difference between him and the Pope, and being imbroiled in Wars at home and abroad, particularly confirmed the afore mentioned Charter, with further Privileges, but soon after broke it, and thereupon the Barons took up Arms against him, and his Reign ended in Wars; to whom succeeded King Hen. 3. who in the 37th Year of his Reign, after it had been several Times by him confirmed, and as often broken, came to Westminster Hall, and in the Presence of the Nobility and Bishops, with lighted Candles in their Hands, Magna Charta was read; the King all that While laying his Hand on his Breast, and at last solemnly swearing faithfully and inviolably to observe all the Things therein contained, as he was a Man, a Christian, a Soldier, and a King. Then the Bishops extinguished the Candles, and threw them on the Ground; and every one said, Thus let him be extinguished, and stink in Hell, who violates this Charter: Upon which the Bells were set on ringing, and all Persons by their rejoicing approved of what was done. But notwithstanding this very solemn Confirmation of this Charter, the very next Year King Henry invaded the Rights of his People, till the Barons levied War against him; and after various Success, he confirmed this Charter, and the Charter of the Forest, in the Parliament of Marlbridge, and in the 52d Year of his Reign. And his Son King Edw. 1. confirming these Charters, in the 25th Year of his Reign made an Explanation of the Liberties therein granted to the People; adding some which are new, called Articuli super Chartas: And Magna Charta was not only then confirmed, but more than Thirty Times since. Co. Lit. 81. This excellent Statute, or rather Body of Statute Law at that Time, so beneficial to the Subject, and of such great Equity, is the most ancient written Law of the Land; and it is divided into 38 Chapters: The 1st of which, after the solemn Preamble of its being made for the Honour of God, the Exaltation of Holy Church, and Amendment of the Kingdom, &c. ordains, That the Church of England shall be free, and all Ecclesiastical Persons enjoy
their Rights and Privileges. The 2d is of the Nobility, Knights Service, Reliefs, &c. The 3d concerns Heirs, and their being in Ward. The 4th directs Guardians for Heirs within Age, who are not to commit Waste. The 5th relates to the Custody of Lands, &c. of Heirs, and Delivery of them up when the Heirs are of Age. The 6th is concerning the Marriage of Heirs. The 7th appoints Dower to Women, after the Death of their Husbands, a third Part of the Lands, &c. The 8th relates to Sheriffs and their Bailiffs, and requires that they shall not seize Lands for Debts where there are Goods, &c. the Surety not to be distraned, where the Principal is sufficient. The 9th grants to London, and all Cities and Towns, their ancient Liberties. The 10th orders, that no Distress shall be taken for more Rent then is due, &c. By the 11th the Court of Common Pleas is to be held in a certain Place. The 12th gives Assizes for Remedy, on Disseisin of Lands, &c. The 13th relates to Assizes of Darrein Presentment, brought by Ecclesiasticks. The 14th enacts, that no Freeman shall be amerced for a small Fault, but in Proportion to the Offence, and by the Oaths of lawful Men. The 15th, no Town shall be distrained to make Bridges, &c. but such as of ancient Times have been accustomed. The 16th is for repairing of Sea-Banks and Sewers. The 17th prohibits Sheriffs, Coroners, &c. from holding Pleas of the Crown. The 18th enacts, that the King's Debtor dying, the King shall be first paid his Debt, &c. The 19th directs the Manner of levying Purveyance for the King's House. The 20th concerns Castleward, where a Knight was to be distrained for Money for keeping his Castle, on his Neglect. The 21st forbids Sheriffs, Bailiffs, &c. to take the Horses or Carts of any Person to make Carriage without paying for it. By the 22d the King is to have Lands of Felons a Year and a Day, and afterwards the Lord of the Fee. The 23d requires Weirs to be put down on Rivers. The 24th directs the Writ Præcipe in Capite, for Lords against Tenants offering Wrong, &c. The 25th declares that there shall be but one Measure throughout the Land. The 26th, Inquisition of Life and Member, to be granted freely. The 27th relates to Knights Service, Petit Serjeanty, and other ancient Tenures (taken away together with Wardship, &c. by 12 Car. 2.) The 28th directs that
no Man shall be put to his Law, on the bare Suggestion of another, but by lawful Witnesses. The 29th, no Freeman shall be disseized of his Freehold, imprisoned and condemned, but by Judgment of his Peers, or by Law. The 30th requires that Merchant Strangers be civilly treated, &c. The 31st relates to Tenures coming to the King by Escheat. By the 32d no Freeman Shall sell Land, but so that the Residue may answer the Services. The 33d, Patrons of Abbeys, &c. shall have the Custody of them in the Time of Vacation. The 34th, a Woman to have an Appeal for the Death of her Husband. The 35th directs the keeping of the County Court monthly, and also the Times of holding the Sheriff's Torn, and View of Frankpledge. The 36th makes it unlawful to give Lands to religious Houses in Mortmain. The 37th relates to Escuage, and Subsidy, to be taken as usual. And the 38th ratifies and confirms every Article of this Great Charter of Liberties. By the Stat. 25 Ed. 1. it is ordained, that the Great Charter shall be taken as the Common Law. And all Statutes made against Magna Charta are declared to be void by 43 Ed. 3.
Another strong Barrier against the Infringement of the Rights and Liberties of the Subject, by arbitrary and wicked Princes, is the Bill of Rights, or Declaration of Rights and Liberties, against the Conduct of James II. whereby he, by the Advice of wicked Counsellors, did endeavour to subvert the Laws of the Kingdom, by dispensing with, and suspending the Laws, levying Money by Prerogative, by keeping a standing Army in Time of Peace, violating the Freedom of Elections, violent Persecution in the Court of King's Bench, causing partial and corrupt Jurors to be returned, excessive Bail to be taken, excessive Fines to be levied, and cruel Punishments inflicted. All which were declared illegal, despotic, and tyrannical, by 1 W. & M. cap. 2.
All the Laws and Statutes of Great Britain made before the Fourth Year of the Reign of James I. or before the Settlement of this Province, are binding here, as the first Settlers of a Colony always carry with them the Laws and Constitutions of the Mother Country. And all Laws and Statutes of Great Britain made since, wherein the Colonies are particularly mentioned, are also binding here.
The late Superior Court Law inforced the Statute of Jeofails in this Province.
Statutes of Jeofails are Acts of Parliament, made from Time to Time for Amendment of the Law, and to cure Faults, Mistakes, Misprisions, and Oversights in Pleading.
Informations, and Actions upon Penal Laws or Statutes, brought by Informers, are excepted out of the Statute of Jeofails. Pr. Reg. 392.
And so are Faults in Proceedings upon Indictments. 2 Saund. 308.
TREASON.THIS is a Crime of such transcendent Milignity in its Nature and Consequences, that it is, by the Law, distinguished for its superior Guilt, and therefore punishable in the most base and ignominious Manner: Other Offences are injurious to private Persons only, but this is a Public Mischief, and often strikes at the Root of all civil Government.
Treason.
The Statute of 25 Edw. 3. cap. 2. is the Standard of Treason at this Day, and declares what shall be,
1. High Treason, or
2. Petit Treason.
High Treason may be committed several Ways, as
How committed.
1. By compassing or imagining the Death of the King or Queen, or Prince and Heir Apparent of the Crown; and by declaring such Design by some open Act, or by Words or Writing.
2. By killing the Chancellor, Treasurer, Judges, Justices of Assize, or of Oyer and Terminer, sitting in Judgment, or in Execution of their Office.
3. By violating, or carnally knowing the Queen, or the King's eldest Daughter unmarried, or the Prince's Wife: If they consent, ’tis likewise Treason in them, because it destroys the Certainty of the King's Issue, and by Consequence raises Contests about the Succession to the Crown.
4. By levying War, raising Forces without legal Commission, tho’ for any Public End or Purpose, or under any Pretence whatever; or meeting
and consulting to levy War, tho’ not put in Execution, nor War actually levied.
5. By adhering to the King's Enemies; aiding, assisting, comforting, or corresponding with such, either foreign Enemies, or rebellious Subjects.
6. By counterseiting the Great Seal, or the King's Privy Seal.
7. By counterseiting the King's Coin, or importing counterseit Money. H. P. C. 13.
8. And by a late Statute, maliciously, advisedly, or directly maintaining, declaring, or affirming, by Writing, Printing, Preaching, Teaching, or advised Speaking, that the King is not lawful King, or that the pretended Prince of Wales has any Title to the Crown, or that any other Person has a Right otherwise than by the Act of Settlement; or that the Kings and Queens of England are not able, by the Authority of their Parliaments, to make Laws sufficient to limit and bind the Crown of the Realm of Great Britain, is High Treason.
But for Words spoken, Information must be made, upon Oath, before One or more Justices of Peace, within Three Days after the Words spoken; and Prosecution must be within Three Months after Information.
An Intention of Treason, if plainly proved by Circumstances, is Treason, in the Eye of the Law; and it is to shew the Odiousness and Greatness of the Offence, by punishing the very Intentions of it, which are not punishable in other Offences criminal. Pr. Reg. 612.
Conviction of Treason must be by Two credible Witnesses at least, who must both prove the same open Act of Treason, or different Acts, but of the same Treason: Where distinct Treasons, of divers Kinds, shall be alledged in one Indictment, one Witness to one Species of Treason, and another Witness to another Treason, shall not be sufficient to convict the Party: And no Evidence shall be given of an Act of Treason, unless such Act be expressly laid in the Indictment. Stat. 7 W. 3. cap. 3.
Conviction.
In High Treason there are no Accessaries, but all are Principals: That which will make a Man Accessary to
Felony before the Fact, will make him a Principal in High Treason. C. P. C.
No Accessaries.
If a Man be arraigned for High Treason, and stands mute, or will not answer directly to the Indictment, Judgment shall be given upon him, as upon a Traitor Convict. Dyer 102.
The Punishment of this Offence is adapted to the Greatness of the Crime, viz. The Offender shall be drawn upon a Hurdle, backward, with his Head downward, from the Prison to the Gallows, and there hanged; then cut down alive, his privy Members cut off, and his Entrails taken out and burnt, his Head cut off, his Body quartered, and his Head and Quarters hanged up: All his Lands, Goods and Chattels, are forfeited, and his Blood corrupted. St. P. C. l. 3. c. 19.
Punishment.
But in counterfeiting, &c. of current Coin, there is no Corruption of Blood, or Loss of Dower. 18 Eliz. cap. 1.
And if a Woman be convicted of High Treason, or Petit Treason, the Judgment is, To be drawn to the Gallows, and there burnt. Dyer 230.
Because all Treasons are against the Peace of the King and Realm, therefore upon Complaint made to a Justice, or upon his own Knowledge, he ought to cause such Offenders to be apprehended, and to join with some other Justice in taking the Examinations of the Prisoner and Witnesses; and must bind over the Informers, and such Witnesses as prove any Thing material, to appear and give Evidence for the King. Dalt. 336.
Justices of Peace ought not to receive Informations of Treason, but upon Oath of Two credible Witnesses; and then they may issue their Warrants to apprehend the Offender, and they may may also by their Warrant cause Witnesses to appear before them.
This Offence is not bailable by Justices of Peace; but the Offender being taken and examined before One or more Justices, must be committed.
To discharge or suffer a Prisoner for Treason to escape, is Treason.
Petit Treason, by the Statute 25 Ed. 3. extends to three Particulars.
Petit Treason.
1. Where the Servant kills the Master or Mistress, or where he procures another to do it, and it is done in his Presence; tho’ the Servant be an Infant, or but 13 Years of Age.
If a Servant hath Malice against his Master whilst in his Service, then departs, and afterwards be-being out of Service, he kills his former Master, ’tis Petit Treason. H. P. C. 23.
2. Where the Wife kills her Husband, or joins in the killing, or procures another to do it, and she is present in the House, tho’ not in the same Room where the Fact is committed.
If she intends to poison or murder a Stranger, but kills her Husband, ’tis Petit Treason.
3. Where an Ecclesiastical Person kills his Ordinary.
Aiders, Abettors, and Procurers, are Principals within this Act.
The Son killing his Father or Mother, is guilty of Petit Treason, if he receives Meat, Drink, or Wages. Dalt. 91.
Whatsoever will make a Man guilty, or Principal, in Murder, will make him guilty or Principal in Petit Treason. Crompt. 18.
But if the Servant kills his Master upon a sudden falling out, ’tis not Petit Treason, but Manslaughter. Dalt. 91.
The Judgment for a Man convicted of Petit Treason, is, To be drawn and hanged: Besides Forfeiture of his Fee-Simple Lands for a Year and a Day, entailed Lands during his Life, and he loses all his Goods and Chattels. H. P. C. 24.
Judgment
This Offence is cognizable before Justices of Peace, in like Manner as High Treason, and the Proceedings herein the same as in other capital Offences: The Party charged with Petit Treason may not be admitted to Bail before Justices of Peace.
Misprision of Treason, is, a concealing of any Treason which a Man knoweth: But it must be a bare Knowledge only; for if the Concealer consents to the Treason, he is a principal Traitor. H. P. C. 127.
Misprision of Treason
He that receives and comforts a Traitor, be it a Counterfeiter of Coin, or any other, knowing him to be such, is a principal Traitor himself, and not guilty of Misprision only. C. P. C. cap. 64.
Therefore the safest Way is, to discover forthwith the Treason, and the Traitor, to some Magistrate: For if the Discovery be made to a Person who hath not Authority to take an Examination, it may be questioned,
Whether such Discovery will acquit the Party from an Indictment for Misprision of Treason. Keel. 22.
This Offence is punishable by Imprisonment during Life, Forfeiture of Goods, and of Lands during Life: But ’tis not cognizable before a Justice of Peace.
Punishment.
TREASURE FOUND.TREASURE found, or Treasure trove, is where any Gold or Silver, in Coin, Plate, or Bullion, hath been hidden, and is afterwards found; if no Person can prove any Property to it, it doth belong to the King. 3 Inst.
Treasure found.
By the Common Law, where no Property can be proved in any Goods, they belong to the King. Ibid.
No Larceny can be committed of such Things whereof no Person hath any determinate Property, tho’ he that hath them in Franchise, may have a special Action against him that takes them. 1 H. H. 510.
The Punishment for concealing Treasure trove, is Fine and Imprisonment. And the Coroner is to make Inquiry thereof. 3 Inst. 133.
Punishment for concealing it.
TRESPASS.TO prevent Trespasses by unruly Horses or Cattle, every Planter must make a sufficient Fence about his cleared Ground under Cultivation, where no navigable Stream or deep Water Course shall be, and the Rails near together until the Fence be Three Feet high; on Penalty of being debarred any Action for Trespass for any Damage done by Horses, Cattle, or Hogs.
Trespasses by Horses, &c. prevented.
Unruly Horses breaking into inclosed Grounds fenced according to Law, their Owners must keep them up, from the 10th of March to the 10th of November, yearly, on Penalty of paying double Damages for the second Offence, and treble Damages for the third Offence or Trespass.
Upon Complaint made to any Magistrate of any Trespass or Damage committed by Horses, Cattle, or Hogs, he must summon Three Freeholders, indifferently
chosen, who, with himself, must view and examine, on Oath, whether the Complainant's Fence is sufficient or not, and what Damages he hath sustained by such Trespass, and certify the same under their Hands and Seals; and if the Fence was sufficient, then the Owner of the Cattle, Horses, or Hogs, shall make full Satisfaction for the Damages, to the Party injured, recoverable before any Jurisdiction having Cognizance thereof. But if the Fence appears insufficient, no Damages shall be recovered, for any Trespass or Damage that may be sustained by the Owner of such unlawful Fence.
And if any Person, whose Fence shall be unlawful, shall, with Guns, Dogs, or otherwise, unreasonably chace, worry, maim, or kill any Horses, Cattle, or Hogs, he shall make full Satisfaction for such Damage to the Party injured; recoverable as aforesaid.
Warrant to summon Freeholders, to view a Fence.
— County, ss.
To A. B. Constable.
WHEREAS C. D. of this County, Planter, hath complained to me, E. F. Esq; one of his Majesty's Justices of the said County, that the Horses [Cattle or Hogs] of G. H. of the said County, hath broke into his inclosed Grounds, under Cultivation, and committed much Damage to him the said C. D. These are therefore, in his Majesty's Name, to require you to summon Three reputable and indifferent Freeholders of the said County, to be and appear, with myself, at the Plantation of the said C. D. on the — Day of — next, to examine and inquire whether the Fence round the inclosed Grounds of the said C. D. be lawful, agreeable to the Directions of the Act of Assembly in that Case made and provided. Herein sail not. Given under my Hand, this — Day of —
Warrant to summon Viewers.
Upon this Summons the Justice, with the Freeholders, must view the Fence where the Trespass was committed, and if they find it lawful, a Certificate of the same, under their Hands and Seals, grounds an Action of Damages to the Party injured; whereupon, if the Damages are within the Jurisdiction of a Warrant, they may be recovered before a Justice. But if they find the Fence unlawful, no Damages may be recovered.
Warrant to recover Damages for Trespasses committed on lawful Fences, by unruly Horses, &c.
— County, ss.
To A. B. Constable, or any other lawful Officer.
WHEREAS C. D. of the said County, Planter, hath complained to me, E. F. Esq; one of his Majesty's Justices of the said County, that the Horses [Cattle or Hogs] of G. H. hath broke into his inclosed Grounds, and endamaged him in the Sum of — These are therefore, in his Majesty's Name, to require you to bring the said G. H. before me, or any other Magistrate, to answer the said Complaint. Given under my Hand and Seal, this — Day of — Anno Dom. —
Warrant.
VAGRANTS.NO Person shall hire, or entertain in his Family, above 48 Hours, any idle or disorderly taxable Person, of no visible Estates, travelling from one Parish to another, unless he produce a Certificate, under the Hand of the Sheriff, or some Magistrate of the County, from whence he came, that such Person paid levy there the preceding Year, or that he came into the Province since, or was a Servant at the Time of taking the last List of Taxables; on Penalty of Twenty Shillings, to the Informer, recoverable before a Justice. And if any such Person shall offer himself to Service without such Certificate, he shall be liable to the like Penalty of Twenty Shillings.
Vagrants, not to be hired.
All able bodied Persons, not having sufficient to maintain themselves, found loitering, and neglecting to labour for Wages; all Persons who run from their Habitations, having Wives and Children, without suitable Means for their Subsistence; and all other idle, vagrant, or dissolute Persons, wandering abroad without betaking themselves to some lawful Employment or honest Labour, or going about begging, deemed Rogues and Vagabonds.
Rogues & Vagabonds
If any such Vagabonds shall be found in any Place, and Justice of the Peace, by his Warrant, may cause them to be brought before him, and examine into their Condition and Circumstances; and if they come under the Description of Vagabonds, such Justice, by his
Warrant, shall order them to be conveyed and whipped, in the same Manner of Runaways, from Constable to Constable, to the County where their Wives and Children inhabit, or where they last resided, and there delivered to a Justice of the Peace, who is required to make them give Security for betaking themselves to honest Labour, or to commit them to Gaol, until they give such Security, or until the next Court; when, if no Security then given, such Court may bind them out to Service on Wages, for one Year, which shall be applied to the Maintenance of their Families, or paid to themselves, when their Time of Service expires. But if such Vagabonds be of such ill Fame that no Person will receive them, the Court shall order them Thirty Nine Lashes on their bare Backs at the Whipping Post, and then discharged; and in both Cases, such Vagabonds shall be liable afterwards to the like Prosecution and Punishment for every Offence of Vagrancy. And when any Vagrant shall not have acquired a legal Settlement in any Parish, the Justice before whom he is brought must cause him to give Security for his good Behaviour, and betaking himself to honest Labour, or commit him to Gaol, to be dealt with as above mentioned.
How dealt with.
No Person shall be accounted an Inhabitant, so as to have gained a legal Settlement in any Parish, and be intitled to be provided for at the Parish Charge, until such Person hath been a Resident in such Parish for one Year.
Legal Settlement.
No Person shall harbour or maintain about his House or Plantation, any loose or disorderly Person, who has no visible Way of Living, or is of dishonest Character, on Penalty of Twenty Pounds, recoverable in the County Court, Half to the Informer, and Half to the County; and such Offender shall be further liable to be bound over to the next Superior Court, to abide the Judgment of such Court.
Idle Persons, how dealt with.
On Information to a Magistrate, of any Person offending herein, he may issue his Warrant to bring such Offender before him, and on Conviction, may bind him to the next Superior Court of the District, with such Witnesses as he may think necessary; which Court, on Conviction of such Offender before them, must proceed against him according to Law.
Warrant to apprehend a Vagrant.
— County, ss.
To A. B. Constable, or to any lawful Officer of the said County.
WHEREAS Information has been made to me, C. D. Esq; one of his Majesty's Justices of the Peace for the said County, that E. F. is an idle disorderly Person, is wandering about in this County, and comes within the Description of the Vagrant Act. These are therefore, in his Majesty's Name, to require you to bring the said E. F. before me, or some other Magistrate of this County, to answer the above Information, and to be dealt with as the Law directs. Given under my Hand and Seal, this — Day of — Anno Dom. —
Warrant.
Upon this Warrant, if the Party, on Examination, comes within the Act, the Justice must charge the Officer to deliver him to the nearest Constable, to be conveyed from Constable to Constable, to the County of his last Residence.
Order is the nearest Constable to receive a Vagrant, and deliver him to the next Constable.
— County, ss.
To A. B. Constable.
I HEREBY charge and command you to receive the Body of C. D. a Vagrant, herewith sent. Him you are to convey to the next nearest Constable to your District, in Order that he may be conveyed from Constable to Constable, until he be delivered to some Justice of the Peace of the County of his last Residence [or where his Wife and Children inhabit] Herein fail not, as you will answer the contrary at your Peril. Given under my Hand and Seal, this — Day of — Anno Dom. —
Warrant to the Constable.
When he is delivered to a Justice of the County of his last Residence, if he sails to give Security as the Law directs, such Justice must commit him to Gaol, until the next Court.
Mittimus for a Vagrant failing to give Security.
— County, ss.
To A. B. Sheriff, or to the Keeper of the Gaol of the said County.
I HEREWITH send you the Body of C. D. a Vagrant, sent to me from the County of — who will not give Security for his good Behaviour, and for betaking himself to some honest Labour, as the Law directs. Him you are to safe keep in your Gaol, until he shall give such Security, or until the next County Court, to be then dealt with as the Law directs. Given under my Hand and Seal, this — Day of — Anno Dom. —
Mittimus.
VERDICT. See JURIES.
VESTRIES. See CHURCHWARDENS.
UTLAWRY, OR OUTLAWRY.THIS is a Punishment for such who being called in Law, and lawfully sought, contemptuously refuse to appear. He that is sued must be called at Five County Courts, to answer the Law; and if he appear not within that Time, he shall be held an outlawed Person, refusing to obey either his Prince or the Law, and therefore he shall lose the Benefit of a Subject, which is, the Protection of his King, and the Laws of his Country. C. P. C. 18.
Outlawry.
It seems to be derived from the old British Priests, called Druids, who in ancient Times sat as Judges of the Land; and if any Person made Default in appearing before them, when called, he was forbid their Sacrifices, which was, in Effect, excluding him from human Society, for then no Man would speak to him, or come near him, for Fear of being infected; and besides, he was to have no Benefit of the Law. Seld.
So great was this Punishment, that, in after Ages, no Man was outlawed but for Felony only, and then he was said to carry his Judgment in his Face, and might be killed as a Wolf, by any Person. This so continued till the Reign of Edw. 3. when it was made lawful for the Sheriff only to kill him, but not without a Warrant for so doing.
Punishment.
The Law is now changed in this Respect, and Outlawries are become frequent in personal Actions. The Party so outlawed forfeits his Goods and Chattels to the King.
In Personal Actions.
And if he be outlawed for Felony, he is thereupon attainted, his Lands, Goods and Chattels, are forfeited, and his Body at the King's Disposal.
Altho’ a Man be outlawed for Felony, yet he is subject to be taken in Execution at the Suit of a Creditor; but the Sheriff may choose whether he will serve such Execution or not. If the Law were otherwise, the Party might take Advantage of his own Fault, by suffering himself to be outlawed, and then getting a Pardon, and so deceive all his Creditors. Moor 379.
The Party outlawed may reverse the Outlawry by Writ of Error; but the Court will not reverse an Outlawry, altho’ both the Parties consent to it, viz. the Party outlawed, and the Party at whose Suit he is outlawed, except there be Error assigned. For Matters of Record are not to be destroyed without sufficient Cause, and the Outlawry also concerns the King, as well as the Parties, and therefore not to be overthrown without Cause shewn. Pr. Reg. 438.
WARRANTS.THESE are Orders in Writing, issued by Justices of Peace, under their Hands and Seals, directed to a proper Officer, or other Person specially named, to execute.
Warrants.
But in some Cases the Command of a Justice of Peace, by Word, without Writing, is as effectual as his Precept in Writing; as in Riot, Affray, Assault, Threatening, or any other Breach of the Peace in his Presence, he may command any Officer, or his own Servant, or any other Person present, to arrest the Offender. Dalt. 439.
But where the Offence is not committed in View and Presence of the Justice, he must issue his Precept or Warrant in Writing, to apprehend the Offender.
Every Warrant ought to express the Cause for which the Party is to be arrested, or summoned, and therefore a General Warrant to cause any Person to appear and
answer such Matters as shall be objected against him, without mentioning any particular Matter, is not good. Co. 2 Inst. 591.
But in some special Cases of Treason, Felony, or any capital Offence where the King is Party, the Warrant need not contain the special Cause or Matter at large, but may express generally the Nature of the Offence, and to answer such Matters as shall be objected against the Defendant on his Majesty's Behalf. Dalt. 440.
In criminal Matters, especially in Cases capital, it ought to be under Seal of the Justice, expressing the true Date and Place when and where issued, and the Cause: But in Matters of Debt, Trespass, and the like Complaints, between Subject and Subject, a Warrant under the Justice's Hand is good, tho’ not sealed.
A Justice of Peace ought not to grant a blank Warrant, for this is finable; nor a Warrant to apprehend any Person for Felony, or upon Suspicion, without examining, upon Oath, the Party who requires it, and binding him over to give Evidence. Crompt. 34.
A Warrant may be directed to the Sheriff, Under-Sheriff, Constable, or other Officer, or any other indifferent Person, tho’ no Officer, as the Circumstances of the Case may require, and this is discretionary in the Justice; but the safest Way is, to direct it to a sworn Officer. Dalt. 443.
To whom directed.
If ’tis directed to the Sheriff, he may, by Word, command his Under-Sheriff, or Bailiff, to execute it; but if he commands a Stranger to serve it, he must deliver him a Precept in Writing. Br. Fx. Impr. 43.
If directed to the Under-Sheriff, Bailiff, Constable, the Justice's Servant, or a Stranger, these must personally execute it; for in this Case none of them can appoint a Deputy, by Word or Writing. Ibid.
The Officer or Person to whom a Warrant or Precept is directed, must with Speed and Secrecy execute it forthwith, if the Party against whom ’tis granted can be found; and if it be for the Peace, good Behaviour, or any criminal Offence, and generally in all Cases where the King is Party, he may break open Doors, if Enterance is denied after Demand by him made, in the King's Name, and the Cause of his coming declared.
Officers Duty.
A sworn Officer need not shew his Warrant, ’tis sufficient if he declares the Contents; and if he is resisted or assaulted, he may justify the beating and wounding: But a Person who is not a sworn Officer, must produce his Warrant to the Defendant, if required, or the Party may resist, and refuse to obey it. Dalt. 444.
If after an Arrest the Officer suffers his Prisoner to go at large, upon Promise that he will appear, he cannot afterwards retake him upon the first Warrant, because it was executed, and must be so returned at his Peril: But if the Prisoner escape, the Officer may retake him, upon fresh Pursuit, without other Warrant. Nels. 616.
If after Arrest the Officer procures a Warrant, having none before, this is false Imprisonment, and the Officer liable to the Action of the Party grieved. 43 Eliz. c. 6.
Where there be two Persons of the same Name, and Addition, and a Warrant is granted against one of them, the Officer ought to make diligent Inquiry which of them is the Offender, that he may not arrest the wrong Person, and so become liable for false Imprisonment. Nels. 616.
Every Officer must pursue the Effect of his Warrant, and make a true Return thereof. If a Justice of Peace issues his Warrant or Precept, for any Matter within his Jurisdiction, and legally cognizable before him, tho’ he commit a Mistake, yet the Officer must not dispute, but obey, and shall be justified by his Warrant. But where a Magistrate exceeds his Authority, or issues his Precept in a Matter not legally within his Jurisdiction or Cognizance, such Precept is void, and the Officer liable to the Suit of the Party grieved, for executing it. Cro. 106. Plo. 394.
Upon a Warrant, generally, to bring the Party before the Justice who issued it, or any other Justice, ’tis in the Election of the Officer to appoint an Appearance before such Magistrate as he thinks fit; because the Law prefumes him to be an indifferent Person, and he is sworn to execute his Office duly, and therefore ’tis reasonable the Election should be in him. 5 Rep.
Appearance.
But if it be specially limited to appear before the Justice himself, or before any other particular Justice or Justices, or at a certain Day and Place appointed, the Officer is bound to obey: For it must be presumed that
he who grants the Warrant, or hath taken Examinations, sees Cause for commanding such special Appearance.
If any Person abuses the Justice's Warrant, by throwing it under Foot, treading it in the Dirt, or by any other Public Contempt, he may be bound to good Behaviour, indicted and fined, because it is the King's Process. Dalt. 445.
And if the Officer, or other Person, to whom a legal Warrant is directed, refuses to execute it, he may be indicted and fined for his Contempt. Ibid.
Every Mittimus, whereby the Body of any Person is committed to Prison, must be,
Mittimus, how made.
1. To the common Gaol.
2. Under Seal of the Justice.
3. Containing and plainly expressing the Cause of Commitment.
4. With an apt Conclusion, viz. There to remain till delivered by due Course of Law; or else the Mittimus is void.
The Cause of Commitment is necessary to be expressed, that it may appear whether the Person is bailable or not: For if no Cause of Commitment is expressed, other Justices may bail him, tho’ ’tis not adviseable so to do, without the Privity of the Justice who committed the Offender.
By the Statute 7 Jac. 1. cap. 5. made perpetual by 21 Jac. 1. cap. 12. if any Action shall be brought against a Justice of Peace, or any Officer, or against any other Person acting by their Command, or in their Aid or Assistance, for any Thing by them done in Execution, and by Virtue of their respective Offices, the Defendant may plead the General Issue, and give the special Matter in Evidence; and upon a Nonsuit, Discontinuance, or Verdict for the Defendant, he shall have double Costs.
Justification of Officers.
By the Common Law, if an Action of false Imprisonment be brought against any Officer, he must plead the special Matter, and justify himself by his Authority or Warrant.
A Constable may make a Deputy, but he must be answerable for him. Moor 845. 3 Bulstr. 77.
For Justices Warrants for Debt, see DEBT.
Warrants to recover Penalties under the several Penal Statutes, will be found under their respective Titles.
WEIGHTS AND MEASURES.
BY an Act of Assembly of this Province, for regulating Weights and Measures, all Inhabitants and Traders shall buy and sell by, and make Use of in trading, Weights and Measures according to the Standard in his Majesty's Exchequer, and the Statutes of England.
Weights & Measures, how regulated.
The Justices of every County must, at the County Charge, provide sealed Weights of Half Hundreds, Quarters of Hundreds, Half Quarters, Seven Pounds, Four Pounds, Two Pounds, One Pound, and Half Pound; and Measures of Ell and Yard, of Brass or Copper; and Measures of Half Bushel, Peck, and Gallon, of dry Measure; and a Gallon, Pottle, Quart, and Pint, of Wine Measure; also a Stamp for Brass, Tin, Iron, Lead, or Pewter Weights, and a Brand for Wooden Measures, of the Letters N. C. on Penalty of Ten Pounds, recoverable from the said Justices by Action of Debt, and applied to the Contingencies of Government. And the said Justices must appoint some Person as Standard-Keeper, to keep the said Weights and Measures, in such Place as they shall appoint, he first giving Security to them in the Sum of Fifty Pounds.
All Persons using Weights and Measures, must carry the same to the Standard-Keeper to be tried, sealed, and stamped; and if they buy or sell by such Weights or Measures without being tried, sealed, and stamped, they shall forfeit Ten Pounds for every Offence; recoverable in any Court of Record, Half to the Informer, and Half to the County.
All Persons using Steelyards, must try them with the Standard once a Year, and take a Certificate thereof from the Standard-Keeper, on Penalty of Twenty Shillings, recoverable before a Justice, and applied as aforesaid.
The Standard-Keeper may take Nine Pence for every Pair of Steelyards, Weights or Measures, he may stamp and Seal.
The Standard-Keeper, at the next Court after his Appointment, must take the following Oath, viz.
YOU shall swear, that you will not stamp, seal, or give any Certificate for any Steelyards, Weights or Measures, but such as shall, as near as possible, agree with the
Standard in your Keeping; and that you will, in all Respects, truly and faithfully discharge and execute the Power and Trust by this Act reposed in you, to the best of your Ability and Capacity. So help you God.
Standard Keepers Oath.
Upon Information to the Standard-Keeper of any false Weights or Measures being used by any Person, he, with a Constable, may search the House, or other suspected Place of the Offender, for such Weights or Measures, and if any such shall be found, the Constable must carry the Offender before some Magistrate of the County, who must bind such Offender over to the next Court, where a Bill of Indictment must be prefered against him, and on being convicted, the Court may fine such Offender in any Sum not exceeding Twenty-five Pounds, one Third to the Informer, one Third to the Standard-Keeper, and the other Third to the Use of the County, and the Offender must stand committed till the said Fine be paid. And if it appear to the Court, by the Verdict of the Jury, that the Offender altered, lessened, or shortened his Steelyards, Weights or Measures, or used them knowingly after they were so altered, with an Intent to defraud, the Court shall, besides the above Fine, sentence such Offender to stand publicly, during the Sitting of the Court, in the Pillory two Hours, with his Offence written over his Head.
Naval Officer to set up in his Office an Advertisement of this Act, for the Benefit of Traders coming into the Province, on Penalty of five Shillings for every Twenty-four Hours the same shall be neglected; recoverable before a Justice, Half to the Informer, and Half to the County.
Justices to take into their Possession all Weights and Measures as have been provided by their Counties, and may demand all Monies raised for purchasing Weights and Measures, and apply the same according to the Directions of this Act.
The English Standard,
Has Two Sorts of Weights, viz.
Troy Weight.
Troy Weight.
| 24 | Grains, make | 1 Penny-weight. |
| 20 | Penny-weight, | 1 Ounce. |
| 12 | Ounces, | 1 Pound. |
By this, are weigh'd Gold, Silver, Pearl, Jewels, Silks, Bread, and Wheat.
Averdupois Weight.
Averdupois.
| 16 | Drams, make | 1 Ounce. |
| 16 | Ounces, | 1 Pound. |
| 28 | Pounds, | 1 Quartern. |
| 4 | Quarterns, | 1 Hundred. |
| 20 | Hundreds, | 1 Ton. |
Hereby are weigh'd Butter, Cheese, Flesh, Flax, Drugs, Grocery, Hemp, Iron, Steel, Lead, Tin, Tallow, Tobacco, Wax, Wool, and all Commodities which are garbled, or of which any Refuse is made; to every Hundred there is an Allowance of 12 Pounds, and so in Proportion.
Of Measures there are divers Kinds, viz.
Wine Measure.
Wine Measure.
| 2 | Pints, make | 1 Quart. |
| 2 | Quarts, | 1 Pottle. |
| 2 | Pottles, | 1 Gallon. |
| 63 | Gallons, | 1 Hogshead. |
| 2 | Hogsheads, | 1 Pipe. |
| 2 | Pipes, or | 1 Ton. |
| 252 | Gallons, |
Wine, Oil, Spirits, and all Liquors, except Beer and Ale, are thus Measured. 23 H. 8. cap. 4.
Ale Measure.
Ale Measure.
| 8 | Gallons, make | 1 Firkin. |
| 2 | Firkins, | 1 Kilderkin. |
| 2 | Kilderkins, or | 1 Barrel. |
| 32 | Gallons, |
If Butter, or Soap, are sold by Measure, it must be as Ale.
Beer Measure.
Beer Measure.
36 Gallons, make 1 Barrel.
Smaller Cask in Proportion.
Dry Measure.
Dry Measure.
| 2 | Gallons, make | 1 Peck. |
| 4 | Pecks, | 1 Bushel. |
| 8 | Bushels, | 1 Quarter. |
Corn, Pease, Beans, Salt, and all other dry Goods which are sold by Measure, must be thus accounted, and it must be strike Measure, and not heaped. 11 H. 7. cap. 4. &c.
Cloth Measure.
Cloth Measure.
| 4 | Nails, make | 1 Quarter. |
| 4 | Quarters, or | 1 Yard. |
| 36 | Inches, | |
| 5 | Quarters, or | 1 Ell. |
| 45 | Inches, |
Wrought Silks, Linen, Woollen, and all Commodities whatsoever, which are sold by long Measure, must be by these Contents.
Land Measure.
Land Measure.
| 3 | Barley Corns, make | 1 Inch. |
| 12 | Inches, | 1 Foot. |
| 16 | 1-2 Feet, | 1 Pole, Perch, or Rod. |
| 40 | Poles, | 1 Furlong. |
| 8 | Furlongs, or | 1 Mile. |
| 1760 | Yards, or | |
| 5280 | Feet, |
| An Ox-gang, is | 13 Acres. |
| A Yard Land, | 20, 24, or 30 Acres. |
| Plough-Land, or | was 100 Acres formerly, now 80 Acres. |
| Hide of Land, | |
| 1 Handful, or 1 Hand high, is 4 Inches. | |
| 1 Fathom, is | 6 Foot. |
| Paper, | 24 Sheets, make | 1 Quire. |
| 20 Quires, | 1 Ream. | |
| 10 Reams, | 1 Bale. | |
| Parchment, | 50 Skins, or | 1 Roll. |
| 5 Dozen, | ||
| Hides, | 10 Hides, | 1 Dicker. |
| 20 Dickers, | 1 Last. | |
| Herrings, | 32 Gallons, | 1 Barrel. |
| 10,000 | 1 Last. |
Timber hewed and squared, 50 Foot 1 Load.
All our Weights have their first Composition from the ancient Penny Sterling, which ought to weigh 32 Wheat Corns, of a middle Sort, Twenty of which Pence make an Ounce, and Twelve such Ounces 2 Pound Troy, or Trone. Fleta lib. 2. cap. 12.
WILLS.WILL, or last Will and Testament, is a solemn Act or Instrument, whereby a Person declares his Mind and Intention, as to the Disposal of his
Lands, Good, or Effects, and what he would have done after his Death. Co. Lit. 111.
Wills.
There is nothing under this Head comes within the Cognizance of Justices of the Peace, or other Peace Officers; but as it may be a Matter of much Consequence, in preventing expensive Law Suits, to know a little of the Laws concerning Wills, the following short Abstract is here given, for the Benefit of our uninformed Readers.
The Common Law calls that a Will when Lands or Tenements are given; and where it concerns Goods and Chattels alone, it is termed a Testament: In a Will of Goods there must be an Executor appointed, but not of Lands only without Goods; an Executor having nothing to do with the Freehold. Inst. 111. If Lands are given by Will, it is called a Devise; and Goods and Chattels a Legacy: And there is this Diversity between Lands and Goods given by a Will, that when Lands are devised in Fee, or for Life, the Devisee shall enter without the Appointment of others: In Case of Goods and Chattels, there must be the Assent of the Executors, &c. Swimb. 24.
Will, Testament, Devise, & Legacy.
A Will hath not Force till after the Testator's Decease; but then without any further Grant, Livery, &c. it gives and transfers Estates, and alters the Property of Lands and Goods, as effectually as any Deed or Conveyance executed in a Man's Life-time; and hereby Descents may be prevented, Estates in Fee-simple, Fee-tail, for Life or Years, &c. be made: And he that takes Lands by Devise, is in Nature of a Purchaser. Litt. 167.
Force of a Will.
Three Things are requisite to the Perfection of a Will; First, the Inception, which is the Writing of it; Secondly, the Progression, being the Publication thereof; and Thirdly, the Consummation of it, which is the Death of the Party. 1 Inst. 113. But such an Estate as by the Rules of the Law may not be conveyed by Act executed in a Man's Life, shall not be created, or conveyed by Will; as to make a Perpetuity &c. 1 Rep. 85. Dyer 12, 33.
Requisites.
One seised in Coparcenary, or as Tenant in Common, in Fee-simple, of Lands, may by Will devise them at their Pleasure by this Statute: But Lands intailed are not deviseable, only Fee-simple Lands, and Goods and Chattels; and Wills made by Infants,
Feme-Coverts, Ideots, Persons of Nonsane Memory, are not good in Law. Stat. Ibid. 3 Rep. 30.
What Lands may be devised.
A Feme-Covert cannot make a Will; but the Husband may bind himself by Covenant or Bond to permit his Wife by Will to dispose of Legacies, &c. and this will be such an Appointment as the Husband will be bound to perforn; though it is properly no Will.
Feme Covert.
It is not sufficient that a Person hath his Memory to answer Questions, when he makes his Will; he ought to have a perfect Memory and Understanding: But if some Witnesses swear that the Testator was of good and perfect Mind and Memory, and others that he was not; their Testimony is to be preserred, which depose that he was of sound Memory, for the Support of the Testament. 6 Rep. 23. Cro. Jac. 497.
Witnesses.
The Stat. 29 Car. 2. c. 3. for Prevention of Frauds, ordains, That all Devises of Lands or Tenements shall be in Writing, signed by the Devisor or some other by his express Directions, in the Presence of three credible Witnesses at least; and no Will in Writing shall be revoked, but by some other Will in Writing, or by cancelling the same by the Testator himself, or by his Directions, &c. And where Nuncupative Wills by Word of Mouth only, are made for the Disposition of Chattels above 30l. Value, they must be declared in the Presence of three Witnesses; in the last Sickness of the Party, &c. and the Substance thereof must be committed to Writing in six Days, &c. It hath been formerly adjudged, if a Man bids another make his Will, and before it is done he dies, the Will is not good; but if it be drawn up in his Presence, it might be good for the Devises finished. Plow. 10.
Wills how made.
Nuncupative Wills.
The Testator, if he be at that Time of sane Memory, may desire another Person to set his Hand and Seal to his Will for him, and if he do it, the Will is good. 2 Lill. Abr. 693.
Another Person may sign a Will.
Where three subscribing Witnesses are to a Will, it is sufficient, tho’ one of them on the Trial will not swear that he saw the Testator seal and publish it; if it be proved that he set his Name as a Witness to the Will. Skin. 413.
Two Witnesses sufficient.
Where after the Will is made, a Person annexes a Codicil thereto; or delivers it sometime after, and says it shall be his last Will; or if he says, that his Will is in a Box, in such a Chamber, &c. either of these amount
to a sufficient Publication, to make Lands pass, newly purchased. 1 Roll. Abr. 618. 2 Vern. 209.
Codicil.
Words in Wills are always construed according to the Intention of the Parties that make them, as near as can be collected; and may have different Construction from those in other Deeds; but the Words and Intent must agree with the Law; and if the Words are insensible and repugnant, they are void. 1 Inst. 25. Plowd. 162. Hob. 34.
Words.
When a Testator is moved to make his Will by Fear and Threatening, or circumvented by Fraud, &c. it will be void, or in Danger of being avoided: And if one makes a Will, by the Importunity of his Wife, to the Intent he may be at quiet, and not vexed and troubled by her; it shall be adjudged to be made by Constraint, and not good. 4 Shep. Abr. 13.
Wills made void.
In the well making of a Will, it is good to observe these Rules: That it be done in perfect Memory, and by good Advice; let there be two Parts of it, one whereof to remain in the Hands of the Party as made it, and the other with some Friend, that it may be the less liable to be suppressed after the Testator's Death; and let the Whole be written in one Hand-Writing, and if it may be, in one Sheet of Paper or Parchment; but if there be more Sheets than one, let the Testator sign and seal every Sheet of the same before the Witnesses present at the Execution. A Testator has Power, notwithstanding the Will, to give away during this Life, any Part of his Estate, &c. Sealing a Will is signing. 2 Strange 764. Tho’ the Witnesses signing in the Presence of the Testator is not mentioned in the Attestation, yet it may be a good Execution. Ibid. 1109. After a Probate of a Will, a Court of Equity may inquire into the Fairness of a residuary Devise of personal Estate. 1 Strange 666. Parol Evidence not admitted in the Construction of a Will. 2 Strange 1261.
Rules in making Wills.
Form of a Will.
IN the Name of God. Amen. I A. B. of — being of sound and perfect Mind and Memory (blessed be God) do, this — Day of — in the Year of our Lord — make and publish this my last Will and Testament, in Manner following, that is to say,
Form of a Will.
First, I give and bequeath, &c.
And I hereby make and ordain my worthy Friend, C. D. Executor of this my last Will and Testament. In Witness whereof, I the said A. B. have to this my last Will and Testament, set my Hand and Seal, the Day and Year above written. A. B.
Signed, Sealed, Published, and Declared, by the said A. B. the Testator, as his last Will and Testament, in the Presence of us, who were present at the Time of signing and sealing thereof.
| E. | F. |
| G. | H. |
| I. | K. |
In writing of all Wills, the Words made Use of should be clear and expressive, and apt and pertinent for declaring the Intentions of the Testator, as many Wills have been made void for Want of proper Words to convey the Testator's Meaning.
By the County Court Law of this Province, a Power is given to the Justices thereof, to compell any Persons, having original Wills in their Possession, to produce the same to Court, in Order to have them proved and recorded, where all original Wills are to be deposited among the Records, after Probate, and the Clerk must return to the Secretary's Office a List of all Certificates for obtaining Probates or Administrations.
Probate of Wills.
The Executor of every Will should, at the next Court of his County after the Death of his Testator, exhibit the same to Court, for a Probation thereof.
Oath to be administered to the Evidences to a Will.
YOU, and each of you, swear, that you saw A. B. sign, seal, publish, and declare this Instrument of Writing to be his last Will and Testament, and that he was at the Time of publishing the same of sound and perfect Mind and Memory, to the best of your Knowledge and Belief.
Oath of an Evidence.
So help you God.
It is necessary that Two of the Evidences at least to a Will should appear to the Probate of it; and then, in the Oath, these Words must be added (and that you also saw C. D. sign the said Will, as a concurring Evidence thereto.)
WITCHCRAFT.
THE Existence of Witches, or Persons of either Sex who have real Correspondence and familiar Conversation with evil Spirits, has been a Subject of Controversy among learned Men; and latter Ages have produced very few Instances of Convictions of Witchcraft: But nevertheless ’tis a capital Offence, and, by the Common Law, such Offenders were to be burnt.
Witchcraft.
By the Statute 1 Jac. 1. cap. 12. this Crime is thus described, viz.
How described.
1. By conjuring, consulting, or covenanting with any evil Spirit; entertaining or employing, feeding or rewarding any such.
Taking up dead Bodies, or any Part thereof, to be employed in Witchcraft or Charms.
Any Manner of Witchcraft, Enchantment, Charm, or Sorcery, whereby any Person shall be killed, or any Part of his Body wasted, lamed, or destroyed.
Those who shall be convicted of any of these Offences, are Felons, without Benefit of Clergy.
Punishment.
2. By Witchcraft or Charms, to find hidden Treasure.
To tell where Goods lost may be found.
To provoke unlawful Love.
To attempt to destroy any Person's Body, tho’ it be not effected.
To destroy or impair the Cattle or Goods of another.
Upon Conviction of doing, or attempting to do any of these Things, the Punishment was, for the first Offence, one Year's Imprisonment, without Bail, to stand in the Pillory every Quarter of that Year, and there publicly to confess his Offence. Second Offence, Felony, without Clergy.
But this famous Statute of King James I. by the 9 Geo. 2. c. 5. is repealed; and no Prosecution shall be commenced on it. And where any Persons undertake to exercise any Kind of Witchcraft, or to tell Fortunes, or discover stolen Goods, upon Conviction, they shall be imprisoned a Year, and stand in the Pillory once in every Quarter, in some Market Town, and must give Security for their good Behaviour.
BY a Mistake, the last Act to prevent Fire hunting, was not inserted under its proper Title in the Book; we are therefore obliged to place it here.
FIRE HUNTING.IF any Person shall be discovered hunting in the Woods with Fire Light in the Night Time, he shall, on Conviction before the County Court (which has complete Jurisdiction of the Offence) forfeit Ten Pounds, one Half to the Informer, and the other Half to the Use of the Parish. If the Offender refuses, or is unable to pay the Fine, he shall be committed for Two Months, without Bail or Mainprize, or until he pay the said Fine.
Fire hunting.
Penalty.
Complaint to be made within Three Months after the Offence committed.
The Proceedings in the Inferior Court to be by Indictment, or Information, subject to the Rules of criminal Prosecutions.
Where more Persons than one are engaged in this Offence, any one of them may give Evidence against the rest, subject to the Rules of Witnesses in other Casases. And such Witness, after due Conviction of one or more of his Accomplices, shall be held discharged from all Penalties by this Act inflicted, and shall have equal Right to the Moiety of the Fine as other Informers.
Informer.
APPENDIX
Containing many useful Precedents, and other Things, necessary for Clerks of the Superior and Inferior Courts, and other Persons.
IN civil Cases, the first Process that issues from the Clerk of the Court is the Writ of Capias ad Respondendum, to take the Body of the Defendant, to answer the Plea of the Plaintiff.
Form of a Writ of Capias ad Respondendum.
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 take the Body of A. B. (if to be found within your Bailiwick) and him safely keep, so that you have his Body before the Justices of our Court of Pleas and Quarter Sessions, to be held for the County of — at the Court-House in — on the — Day of — next; then and there to answer — of a Plea of Trespass on the Case, to the Damage of him the said — Twenty Pounds. Herein fail not, and have you then and there this Writ. Witness — Clerk of our said Court, at — the — Day of — and in the — Year of our Reign.
Capias ad Respondendum.
This Writ issues to the Sheriff, who must immediately endeavour to take the Defendant; and when arrested, he must give Bail to the Action, or be committed to Gaol by the Sheriff.
If the Sheriff returns the Writ non est inveneus, or, that the Defendant is not to be found within his County, by our late Superior Court Law, the Plaintiff might then take out an Attachment against the Estate of the Defendant, if any was to be found in the District; for the Proceedings on which, see ATTACHMENT; or he might take out an Alias or Pluries Capias, at his Election.
After Trial, and Judgment, the Plaintiff may take out a Capias ad Satisfaciendum, or Execution against the Body of the Defendant; or a Fieri Facias, or Execution against his Estate.
Form of a Writ of Capias ad Satisfaciendum.
GEORGE the Third, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. To the Sheriff of the County of — Greeting. We command you that you take the Body of — (if to be found in your Bailiwick) and him safely keep, so that you have his Body before the Justices of our Inferior Court of Pleas and Quarter Sessions, to be held for the County of — at the Court-House in — on the — Day of — next; then and there to satisfy — the Sum of — which lately in our said Court — recovered against — as well for Damages, by Reason of the Non-Performance of certain Promises by the said — before that Time made, as for — Costs and Charges, by — in — Suit, in that Behalf expended, whereof the said — convicted and liable, as to us appears of Record, besides your own Fees for this Service. Herein fail not, and have you there this Writ. Witness — Clerk of our said Court, at — the — Day of — in the — Year of our Reign.
Capias ad Satisfaciendum.
Form of a Fieri Facias.
GEORGE the Third, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. To the Sheriff of — Greeting. We command you, that of the Goods and Chattels, Lands and Tenements, of — (in your Bailiwick) you cause to be made — which lately in our Inferior Court of Pleas and Quarter Sessions, at — recovered against — as well for Damages, by Reason of the Non-Performance of certain Promises by the said — before that Time made, as for Costs and Charges in — Suit in that Behalf expended,
whereof the said — is convicted and liable, as to us appears of Record; and have the said Monies before our said Court, at — aforesaid, on the — Day of — next, to render to the said — his Damages, Costs, and Charges aforesaid. And have you then and there this Writ. Witness — Clerk of our said Court, at — the — Day of — in the — Year of our Reign.
Fieri Facias
If after Judgment, the Plaintiff delays his Execution for a Year and a Day, he must then revive his Judgment by a Scire Facias, which is a judicial Writ to call a Man to shew Cause to the Court, why Execution of a Judgment should not go out against him.
Form of a Scire Facias.
GEORGE the Third, by the Grace of God, of Great Britain,France , and Ireland, King, Defender of the Faith, &c. To the Sheriff of the County of — Greeting. Whereas — lately in our Inferior Court of Pleas and Quarter Sessions, held for the County of — recovered — in the Suit he there prosecuted against the said Defendant, as also — Proclamation Money, then and there, in and by our said Court (thereon) adjudged, besides other endorsed Fees, for Costs of Suit, against — whereof — convicted, &c. and though Judgment be thereof given, yet Execution thereof to the said Plaintiff still remains to be made. And as — of the County aforesaid, who in that Suit were Securities, and liable, in Virtue of an Act of General Assembly of this Province, &c. as special Bail, to abide and perform therein the Judgment of our said Court, to surrender the Principal into our Prison, before the Justices of our Inferior Court of Pleas and Quarter Sessions, to be held for the County of — at the Court-House in — on the — Day of — next, on that Occasion, in Case he fail so to do, in Discharge of the said Bail; which hitherto in all Things, on that Occasion, both Princpal and Bail aforesaid have failed to do, as to us the said Plaintiff hath insinuated, as well as supplicated to us to provide, in that Behalf, a fit Remedy. So we, in that Part, willing to do what is just, do therefore command you — that by good and lawful Men of your Bailiwick, you make known to the said Bail to appear before our Inferior Court of Pleas and Quarter Sessions, to be held for the County of — at the Court-House in — on the — Day
of — next, to shew Cause wherefore the said Plaintiff, if expedient to — Execution against the said Bail, as well for the aforesaid several Sums of Money, as for all other Costs whatsoever by Reason of the Premises, ought not to have, according to the Form and Effect, as well of the Judgment and Recovery aforesaid, as of the said Bail's Undertaking; and further, to do and receive all whatsoever that then and there, in that Part, by our said Court, shall be considered of. And have you then and there the Names of them by whom you make known as aforesaid, together with this Writ. Witness — Clerk of our said Court, at — the — Day of — in the — Year of our Reign, Anno Dom. —
Scire Facias
This is against Bail. If against the Principal, (you make known to the said — to be and appear, &c. to shew Cause why Execution should not issue against him for the said Debt, &c.)
When the Cause of Action arises on a Bond, or other Specialty, the Capias must run thus (then and there to answer A. B. of a Plea, that he render to him the said A. B. the Sum of — which he owes, and unjustly detains.)
And in the Execution against the Body (then and there to satisfy C. D. the Sum of — which lately in our said Court was recovered against the said A. B. for Debt.) And in the Execution against the Estate (you cause to be made the Sum of — which lately in our Inferior Court of Pleas and Quarter Sessions at — was recovered against him for Debt.)
When the Sheriff, by a Fieri Facias, has taken Goods and Chattels, and cannot sell them for Want of Buyers, or has taken them by Attachment, on Return of his Writ, a Venditioni Exponas issues, commanding the Sheriff to sell the Goods.
Form of a Venditioni Exponas.
GEORGE the Third, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. To the Sheriff of the County of — Greeting. Whereas we by our Writ have commanded you, that you should cause to be made of the Goods and Chattels, Lands and Tenements, of — whereof the said — convicted, as to us appears of Record; and that you should have those Monies before the Justices of our Inferior Court of Pleas and Quarter Sessions, at our next Court to be held for the
County of — at the Court-House in — on the — Day of — next, then and there to render to the said — his Damages and Costs as aforesaid. And you at that Day returned to us that you, by Virtue of our Writ to you directed for that Purpose, had taken — Therefore we command you that you expose to Sale the Goods and Chattels, Lands and Tenements aforesaid, of the said — and have you those Monies before our Justices of our Inferior Court of Pleas and Quarter Sessions, to be held at the Court-House in — on the — Day of — next, to render to the said — for his Damages and Costs as aforesaid. Herein sail not, and have you then and there this Writ. Witness — Clerk of our said Court, at — the — Day of — in the — Year of our Reign.
Venditioni Exponas.
Form of a Subpœna for Evidences.
GEORGE the Third, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &c. To the Sheriff of the County of — Greeting. We command you to summons — personally to be and appear before the Justices of our Inferior Court of Pleas and Quarter Sessions, to be held for the County of — at the Court-House in — on the — Day of — next; then and there to testify, and the Truth to say, on Behalf of — in a certain Matter of Controversy in our said Court depending, and then and there to be tried, between — Plaintiff, and — Defendant. And this he shall in no-wise omit, under the Penalty of — Pounds, Proclamation Money. Witness — Clerk of our said Court, at — the — Day of — in the — Year of our Reign, Anno Dom. —
Subpœna.
The Writs issuing from the Superior Courts are the same with the Inferior Courts, only differing in the Stile of the Courts.
After Judgment in Ejectment Suits, a Writ of Habere facias Possessionem issues to the Sheriff, to put the Plaintiff in Possession of Lands he has recovered. On this Writ, the Sheriff goes with the Plaintiff to the Land, and puts him in Possession, turning out the Tenant, and may break open Doors, and raise the Posse Comitatus to his Assistance.
The foregoing are the common Precepts that issue. In Actions of Trespass, Trover, Detinue, Ejectment, &c. the Process varies. In Cases of Outlawry, there is the Capias Utlagatum, to take an outlawed Person, after he has been called in Court by the Writ of Exigent; but as Cases of Outlawry seldom happen here, we shall omit the Forms.
Besides the common judicial Writs issuing from our Courts of Justice in this Province, there is a Writ called Ne exeat Regno, issuing from the Court of Chancery, to arrest a Man's Person, to prevent his leaving the Country. In this Province this Writ issues from the Governor, as Judge of the Court of Chancery, upon Application to him, and good Reasons shewn, by any Person, that his Debtor is about to leave the Province. It is directed to the Sheriff, who must arrest the Person, and hold him to Bail agreeable to the Dignity of the Debt, or commit him to Prison.
Ne Exeat.
In criminal Cases, where a Bill of Indictment is found against any Person, the Practice of this Country is, for the Clerk of the Crown to issue a Capias against him, directed to the Sheriff, as other Writs. If the Defendant is taken, the Sheriff must carry him before some Justice of the Peace of the County, there to enter into a Recognizance for his Appearance at Court, and to abide by its Determination on the said Indictment.
This Writ is in the common Form, only in the Cause of Action, which must run thus (so that you have him before some one of our Justices of our Peace for our said County, then and there to enter into Recognizance to us, our Heirs and Successors, with Condition, to appear at our next Inferior Court of Pleas and Quarter Sessions, to be holden for our said County, on the — Day of — next, then and there to abide by the Judgment of the said Court.)
Declarations and Pleas are only useful to Gentlemen of the Law, and there is such Diversity in the Form of them, that ’tis needless to insert any Precedent here, as the Lawyers draw them according to the Nature of the Action.
Things necessary to be known by Clerks of Courts.
In civil Actions, the following are the Oaths to be administered to the Jurors and Witnesses, viz.
Oath of a Jury.
YOU shall well and truly try this Issue joined, wherein A. B. is Plaintiff, and C. D. Defendant, and a true Verdict give, according to your Evidence.
Oath of a Jury.
So help you God.
On a Writ of Inquiry.
YOU shall well and truly inquire what Damages A. B. hath sustained, in a Writ of Inquiry brought by him, and by you now to be tried, and a true Verdict give according to your Evidence.
Inquiry.
So help you God.
Oath of a Witness.
THE Evidence you shall give the Court and Jury sworn in this Issue, now on Trial, wherein A. B. is Plaintiff, and C. D. Defendant, shall be the Truth, the whole Truth, and nothing but the Truth.
Oath of a Witness.
So help you God.
The Quakers Affirmation.
I A. B. do solemnly and sincerely declare, that the Evidence I shall give to the Court, and the Jury sworn, touching the Matter in Question, shall be the Truth, the whole Truth, and nothing but the Truth.
Affirmation.
In criminal Actions, the following Directions are to be observed, and Oaths taken: When the Grand Jury are called, one by one, and a sufficient Number appear, and answer to their Names, the Clerk of the Crown swears them. The Foreman, by himself, lays his Hand on the Book, and takes the following Oath, viz.
Grand Jury.
YOU, as Foreman of this Inquest, shall diligently inquire, and true Presentment make, of all such Matters and Things as shall be given you in Charge. The King's Counsel, your Fellows, and your own, you shall keep secret. You shall present no Man for Envy, Hatred, or Malice; neither shall you leave any Man unpresented for Fear, Favour, or Affection, or Hope of Reward; but you shall present all Things truly, as they come to your Knowledge, according to the best of your Understanding.
Foremans Oath.
So help you God.
The Rest of the Grand Jury, by Four at a Time, in Order, are sworn in the following Manner.
THE same Oath which your Foreman hath taken on his Part, you, and every of you, shall well and truly observe and keep on your Parts.
His Fellows.
So help you God.
Then Proclamation is made to keep Silence, while the Judge gives his Charge to the Grand Jury.
When the Grand Jury return to the Court, and present any Bills, they are called over, and answering to their Names, the Clerk says to them, Gentlemen, have you agreed upon any Bills; upon Delivery of any, he says to them,
You are content the Court shall amend Matter of Form, altering no Matter of Substance, without your Privity, in those Bills you have found. The Grand Jury then say, Yes, and return to their Business, in examining more Bills.
The Court then proceeds to arraign Prisoners, for which see SESSIONS.
Oath of a Jury, on Life and Death.
YOU shall well and truly try, and true Deliverance make, between our Sovereign Lord the King and the Prisoner at the Bar, whom you shall have in Charge, and a true Verdict give, according to your Evidence.
Oath of a Jury.
So help you God.
Oath upon a Traverse tried.
YOU shall well and truly try the Issue of this Traverse, between our Sovereign Lord the King and A. B. and a true Verdict give, according to your Evidence.
Traverse.
So help you God.
Sometimes when Women are tried, and capitally convicted, they say they are with Child, or plead, their Belly; in such Cases, a Jury of Matrons are sworn, who are to inquire into the Truth of the Case; and if they are sound quick with Child, their Execution is respited till after Delivery.
The Matron's Oath.
YOU, as Forematron of this Jury, shall swear, that you will search and try the Prisoner at the Bar, whether she be with Child of a quick Child, and thereof a true Verdict give, according to your Skill and Understanding.
Matrons Oath.
So help you God.
One by One.
THE same Oath which your Forematron hath taken on her Part, you shall well and truly observe and keep on your Part. So help you God.
Swearing Crown Witnesses.
THE Evidence you shall give to the Court and Jury sworn, between our Sovereign Lord the King and the Prisoner at the Bar, shall be the Truth, the whole Truth, and nothing but the Truth.
Oath of an Evidence.
So help you God.
Swearing Witnesses upon a Traverse.
THE Evidence you shall give to the Court and Jury sworn, touching the Issue of this Traverse, shall be the Truth, the whole Truth, and nothing but the Truth. So help you God.
On a Traverse.
Oath of a Constable, charged with a Jury.
YOU shall swear, that you will keep every Person sworn of this Jury together in some private and convenient Place, without Meat, Drink (Water excepted) Fire or Candle; you shall not suffer any Person to speak to them, neither shall you yourself, unless it be to ask them whether they are agreed on their Verdict.
Oath of a Constable.
So help you God.
Oath to Witnesses upon Indictment.
THE Evidence you shall give to the Grand Inquest upon this Bill of Indictment, against A. B. shall be the Truth, the whole Truth, and nothing but the Truth. So help you God.
Witnesses on Indictment.
After Trial in all Actions, the Clerk should make a perfect and complete Record of the whole Proceedings.
Record of a Trial and Judgment in Action of Debt.
Pleas before the Justices of the Inferior Court of Pleas and Quarter Seffions, held for the County of — at the Court-House in — on the — Day of — Anno Dom. — and in the — Year of the Reign of our Sovereign Lord George the Third, King of Great Britain, &c.
BE it remembered, that heretofore, to wit, on the — Day of — last past, came before the Justices
of the Court aforesaid, A. B. by C. D. his Attorney, and brought into the said Court, then held on the Day aforesaid, his certain Bill against E. F. in Custody of the Sheriff, of a Plea of Debt, the Pledges of prosecuting were John Doe and Richard Roe, which said Bill follows in these Words, that is to say, — County, ss. A. B. complains, &c. [here insert the Declaration.] And now, at this Day, to wit, the — Day of the Court aforesaid, came as well the aforesaid A. B. by his Attorney aforesaid, as the aforesaid E. F. by G. H. his Attorney; and the said E. F. defends the Force and Injury aforesaid, and saith, that he, by Virtue of the aforesaid Writing Obligatory, ought not to be charged with the Debt aforesaid, because he sayeth that the Writing Obligatory aforesaid is not his Deed; and of this he puts himself upon the Country, and the aforesaid A. B. likewise. Afterwards the Proceedings aforesaid were continued by the Parties aforesaid until the— Day of the said Inferior Court of Pleas and Quarter Sessions held for the aforesaid County on the — Day of — when, at the Court aforesaid, came as well the aforesaid A. B. as the aforesaid E. F. by their said Attornies, and the Jurors, being summoned and sworn agreeable to the Act of Assembly in that Case made and provided, to try the Issue aforesaid, say, upon their Oath, that the Writing Obligatory in the Declaration within mentioned, is the Deed of the said E. F. as the said A. B. hath alledged against him, and the Jurors aforesaid assess the Damages of the said A. B. on that Occasion — and the Expences and Costs by him laid out in the Prosecution of the said Suit — Therefore it is considered, that the said A. B. recover against the said E. F. his said Debt, and the Damages assessed by the Jury for Detention of the same; which said Debt, Damages, and Costs, amount in the whole, to — and the said E. F. is in Mercy, &c.
Record of a Trial.
Form of an Indenture for binding out Orphans by Order of the County Court.
NORTH CAROLINA.
THIS Indenture, made the — Day of — in the Year of our Lord Christ One Thousand Seven Hundred and — between — Chairman of the Inferior Court of the County of — and Province aforesaid, on Behalf of the Justices of the said County,
and their Successors, of the one Part, and — of the other Part; witnesseth, that the said — in Pursuance to an Order of the said County Court, made the — Day of — and according to the Directions of the Act of Assembly in that Case made and provided, doth put, place, and bind unto the said — — an Orphan, now of the Age of — Years, with the said — to live after the Manner of an Apprentice and Servant, until the said Apprentice shall attain to the Age of Twenty One Years: During all which Time the said Apprentice his Master shall faithfully serve, his lawful Commands every where gladly obey; he shall not at any Time absent himself from his said Master's Service without Leave, but in all Things as a good and faithful Servant shall behave towards his said Master. And the said — doth covenant, promise, and agree, to and with the said — that he will teach and instruct, or cause to be taught and instrusted, the said — to learn — and that he will constantly find and provide for the said Apprentice, during the Term aforesaid, sufficient Diet, Washing, Lodging, and Apparel, fitting for an Apprentice; and also, all other Things necessary, both in Sickness and in Health. In Witness whereof, the Parties to these Presents have interchangeably set their Hands and Seals, the Day and Year first above written.
Indenture.
This Indenture must be made in the Name of the Chairman of the Court, on the one Part, and of the Master or Mistress, of the other Part, and acknowledged before the Court, and a Counter Part lodged in the Clerk's Office, and recorded, for the Benefit of the Apprentice.
How executed.
Form of a Guardian Bond.
NORTH-CAROLINA.
KNOW all Men, by these Presents, that — all of — County, in the Province aforesaid, are held and firmly bound unto — Justices of the Inferior Court of Pleas and Quarter Sessions for the County of — in the Sum of — Pounds, Proclamation Money, to be paid to the said Justices, or the Survivor or Survivors of them, their Executors or Administrators, in Trust, for the Benefit of the Child hereafter named, committed to the Tuition of the said — To the which Payment well and truly to be made, we bind
ourselves, and each of us, each and every of our Heirs, Executors, and Administrators, jointly and severally, firmly by these Presents. Sealed with our Seals, and dated the — Day of — Anno Dom. —
Guardian Bond.
THE Condition of the above Obligation is such, that whereas the above bounden — is constituted and appointed Guardian to — a minor Orphan; now if the said — shall faithfully execute his said Guardianship, by securing and improving all the Estate of the said — that shall come into his Possession, for the Benefit of the said — until he shall arrive at full Age, or be sooner thereto required, and then render a plain and true Account of his said Cuardianship, on Oath, before the Justices of our said Court, and deliver up, pay to, or possess, the said — of all such Estate or Estates, as he ought to be possessed of, or to such other Persons as shall be lawfully impowered or authorized to receive the same, and the Profits arising therefrom, then this Obligation to be void; otherwise to be and remain in full Force and Virtue.
This Bond is to be given to the Justices present in Court, and appointing such Guardian; and in their Names may be sued on any Breach of the Condition. The Justices will be careful what Securities they take on such Bonds, as they are themselves, if such Securities be insufficient, liable to make good the Orphan's Estate. This Bond should be executed in open Court, at the Time of appointing the Guardian; many Abuses having been committed by suffering the Guardian to enter on the Estate before the Bond given.
Caution.
Form of an Administration Bond.
NORTH-CAROLINA.
KNOW all Men, by these Presents, that — are held and firmly bound unto — Governor or Commander in Chief of the Province aforesaid, in the full and just Sum of — Proclamation Money, to be paid to — his Successors or Assigns. To the which Payment well and truly to be made, we bind ourselves, our Heirs, Executors, and Administrators, jointly and severally, firmly by these Presents. Sealed with our Seals, and dated this — Day of — Anno Dom. —
Administration Bond.
THE Condition of this Obligation is such, that if the above bounden — Administrat— of all and singular the Goods and Chattels, Rights and Credits, of — deceased, do make, or cause to be made, a true and perfect Inventory of all and singular the Goods and Chattels, Rights and Credits, of the Deceased, which have, or shall come to the Hands, Knowledge, or Possession, of the said — or into the Hands or Possession of any Person or Persons, for — and the same so made, do exhibit, or cause to be exhibited, into the Secretary's Office, and one attested Copy thereof to the County Court, where Orders for Administration passed, within Ninety Days after the Date of these Presents; and the same Goods, Chattels, and Credits, and all other the Goods, Chattels, and Credits, of the Deceased, at the Time of his Death, which at any Time hereafter shall come into the Hands or Possession of the said — or into the Hands or Possession of any other Person or Persons, for — do well and truly administer according to Law; and further, do make, or cause to be made, a true and just Account of — said Administration, within one Year after the Date of these Presents; and all the Rest and Residue of the said Goods, Chattels, and Credits, which shall be found remaining upon the said Administrat— Account (the same being first examined and allowed by the Governor and Council, Superior Court or County Court) shall deliver and pay unto such Person or Persons respectively as the same shall be due, pursuant to the true Intent and Meaning of the Act in that Case made and provided. And if it shall appear that any Will or Testament was made by the said Deceased, and the Executor or Executors therein named do exhibit the same into Court, making Request to have it allowed and approved of accordingly, if the said — above bounden, being thereunto required, do render, and deliver the said Letters of Administration (Approbation of such Testament being first had and made in the said Court) then this Obligation to be void, and of none Effect; or else to remain in full Force and Virtue.
When the Justices grant Administrations, they should be careful that the Securities are good, and cause the Bond to be executed before them in Court, as many Instances
have happened of Administrators entering on Estates without giving Bond, and the Heirs put to much Difficulty to recover. After Administration granted, the Bond executed, and the Administrator sworn, the Court must certify the same to the Governor, who thereupon must issue Letters of Administration. Any Person entering upon an Estate without, to forfeit Fifty Pounds. And all Monies left in the Hands of Administrators, and not claimed within Seven Years, to go to the Parish.
How executed.
And Letters issued.
Oath of an Administrator.
YOU swear, that A. B. to the best of your Knowledge and Belief, died without making any Will or Testament; and that you will well and truly administer all and singular the Goods and Chattels, Rights and Credits, of the Interstate, that shall come to your Hands, Knowledge, or Possession, by first paying all the just Debts of the Intestate, and delivering the Residue of his Estate to those who have a Right by Law. And that you will also return a true and perfect Inventory of the said Estate into this Court, within Ninety Days from the Date hereof. So help you God.
Administrators Oath.
A Deed of Bargain and Sale for Lands.
THIS Indenture, made the — Day of — in the Year of our Lord One Thousand Seven Hundred and — between — of the one Part, and — of the other Part, witnesseth, that for and in Consideration of the Sum of — to the said — in Hand paid, by the said — at or before the Sealing and Delivery of these Presents, the Receipt whereof he doth hereby acknowledge, and therefore doth release, acquit, and discharge the said — Executors, and Administrators, by these Presents, he the said — granted, bargained, sold, aliened, and confirmed, and by these Presents doth grant, bargain, sell, alien, and confirm, unto the said — and his Heirs, a certain Piece or Parcel of Land, situate, lying, and being, in the County of — and Province aforesaid, bounded as followeth — and all Houses, Buildings, Orchards, Ways, Waters, Water Courses, Profits, Commodities, Hereditaments, and Appurtenances whatsoever, to the said Premises hereby granted, or any Part thereof belonging, or in any Wise appertaining;
and the Reversion and Reversions, Remainder and Remainders, Rents, Issues, and Profits thereof; and also all the Estate, Right, Title, Interest, Use, Trust, Property, Claim, and Demand whatsoever, of him the said — of, in, and to the said Premises; and all Deeds, Evidences, and Writings, touching, or in any Wise concerning the same: To have and to hold the Lands hereby conveyed, and all and singular other the Premises hereby bargained and sold, and every Part and Parcel thereof, with their and every of their Appurtenances, unto the said — Heirs and Assigns, for ever, to the only proper Use and Behoof of him the said — and of his Heirs and Assigns, for ever. And the said — for — Heirs, Executors, and Administrators, doth covenant, promise, and grant, to and with the said — Heirs and Assigns, by these Presents, that the said — now at the Time of sealing and delivering these Presents, is seized of a good, sure, perfect, and indefeasible Estate of Inheritance, in Fee-Simple, of and in the Premises hereby bargained and sold, and that he has good Power, and lawful and absolute Authority, to grant and convey the same to the said — in Manner and Form aforesaid; and that the said Premises now are, and so for ever hereafter shall remain, and be free and clear of and from all former Gifts, Grants, Bargains, Sales, Dower, Right, and Title of Dower, Judgments, Executions, Titles, Troubles, Charges, and Encumbrances, whatsoever, made, done, committed, or suffered, by the said — or any other Person or Persons whatsoever (the Quitrents hereafter to grow due and payable to — Heirs and Successors, for and in Respect of the Premises, only excepted and foreprized) and that the said — and his Heirs, all and singular the Premises hereby bargained and sold, with the Appurtenances, unto the said — Heirs and Assigns, against him the said — and his Heirs, and all and every Person and Persons whatsoever, shall warrant, and for ever defend, by these Presents. In Witness whereof the said — hath hereunto set his Hand and Seal, the Day and Year first above written.
Deed of Bargain & Sale.
This is the usual Form and Method of granting Lands in this Province, and the Deed must be proved and recorded in the County where the Lands lie, within One Year.
There are two other Methods of granting Lands; by Deed of Feoffment, and by Lease and Release. But the Method by Feoffment is by Livery and Seisin, where actual Possession of the Lands granted must be delivered, by giving a Clod of Earth, and a Twig of a Tree, to the Feoffee, which cannot be done where any Tenant or Owner lives on the Land; this Method is inconvenient, and not used in this Country. Lease and Release, since the Statute of 27 Hen. 8. cap. 10. for transferring Uses into Possession; is the common Method of conveying Lands in England, but as the Forms are very long and tedious, they are seldom used here.
Form of a Deed of Gift of Lands and Tenements.
THIS Indenture, made the Day and Year — between A. B. of — of the one Part, and C. D. of — Son of the said A. B. of the other Part, witnesseth, that the said A. B. as well for and in Consideration of the natural Love and Affection which he hath and beareth unto the said C. D. his Son, as also for the better Maintenance and Preferment of the said C. D. hath given, granted, aliened, enfeoffed, and confirmed, and by these Presents doth give, grant, alien, enfeoff, and confirm, unto the said C. D. all that Messuage or Tenement, &c. with all and singular its Appurtenances, and all Houses, Outhouses, Lands, &c. and the Reversion and Reversions, Remainder and Remainders, Rents and Services, of the said Premises; and all the Estate, Right, Title, Interest, Property, Claim, and Demand whatsoever, of him the said A. B. of, in, and to the said Messuage or Tenement, Lands and Premises, and of, in, and to every Part and Parcel thereof, with the Appurtenances; and all Deeds, Evidences, and Writings, concerning the said Premises only, now in the Hands or Custody of the said A. B. or which he may get or come by without Suit in Law: To have and to hold the said Messuage or Tenement, Lands and Premises, hereby given and granted, or mentioned or intended to be given and granted, unto the said C. D. his Heirs and Assigns, to the only proper Use and Behoof of him the said C. D. his Heirs and Assigns, for ever. And the said A. B. for himself, his Heirs, Executors, and Administrators, doth covenant and grant, to and with the said C. D. his Heirs and Assigns, by these Presents, that he the said C. D. his
Heirs and Assigns, shall and lawfully may, from henceforth for ever hereafter, peaceably and quietly have, hold, occupy, possess, and enjoy, the said Messuage, Tenement, Lands, Hereditaments, and Premises, hereby given and granted, or mentioned or intended so to be, with their Appurtenances, free, clear, and discharged of and from all former and other Gifts, Grants, Bargains, and Sales, Feoffments, Jointures, Dowers, Estates, Entails, Rents, Rent Charges, Arrearages of Rents, and of and from all other Titles, Troubles, Charges, and Encumbrances whatsoever, had, made, committed, done, or suffered, or to be had, made, committed, done, or suffered, by him the said A. B. his Heirs, Executors, or Administrators, or any other Person or Persons, lawfully claiming, or to claim by, from, or under him, them, or any or either of them. In Witness, &c.
Deed of Gift.
A Gift of Goods and Chattels.
TO all People to whom these Presents shall come. I, A. B. of — send greeting. Know ye, that I the said A. B. for and in Consideration of the natural Love and Affection which I have and bear unto my beloved Brother C. D. of — and for divers other good Causes and Considerations me hereunto moving, have given and granted, and by these Presents do give and grant, unto the said C. D. all and singular my Goods and Chattels following [here mention the Goods.] To have, hold, and enjoy, all and singular the said Goods, Chattels, and personal Estate aforesaid, unto the said C. D. his Executors, Administrators, and Assigns, to the only proper Use and Behoof of him the said C. D. his Executors, Administrators, and Assigns, for ever. And I the said A. B. all and singular the aforesaid Goods, Chattels, and Premises, to the said C. D. his Executors, Administrators, and Assigns, against all Persons whatsoever, shall and will warrant, and for ever defend, by these Presents. In Witness, &c.
Deed of Gift.
Lease of House and Lands for a Term of Years.
THIS Indenture made the — Day, &c. between A. B. of — of the one Part, and C. D. of — of the other Part, witnesseth, That for and in Consideration of the Rent and Covenants
herein after reserved and contained, on the Part and Behalf of the said C. D. his Executors and Administrators, to be paid, kept and performed, he the said A. B. hath demised, granted, and to Farm letten, and by these Presents doth demise, grant, and to Farm let, unto the said C. D. all that Messuage or Tenement, situate, &c. with all and singular the Profits, Commodities and Appurtenances, to the said Messuage or Tenement belonging or appertaining: To have and to hold the said Messuage or Tenements, and all and singular the Premisses, with their, and every of their Appurtenances herein before mentioned, or intended to to be hereby demised unto the said C. D. his Executors, Administrators and Assigns, from — for and during, and unto the full End and Term of — Years, from thence next ensuing, and fully to be compleated and ended: Yielding and paying therefore yearly, and every Year, during the said Term, unto the said A. B. his Executors, Administrators and Assigns, the Rent or Sum of — Pounds, on — by even and equal Portions. And if it shall happen the said yearly Rent of — Pounds, or any Part thereof, shall be behind and unpaid by the Space of — Days next after any of the said — on which the same ought to be paid as aforesaid, (being lawfully demanded) that then, and at all Times then after, it shall and may be lawful to and for the said A. B. his Executors, Administrators and Assigns, into the said demised Messuage or Tenement and Premisses, or into any Part thereof, in the Name of the Whole, to re-enter, and the same to have again, re-possess and enjoy, as in his and their former Estate, and the said C. D. his Executors, Administrators and Assigns, thereout, and from thence to expel and put out; any Thing herein contained, to the contrary thereof, in any Wife, notwithstanding. And the said C. D. for himself, his Executors, Administrators and Assigns, doth covenant and grant to and with the said A. B. his Executors, Administrators and Assigns, by these Presents, that he the said C. D. his Executors, Administrators or Assigns, shall and will, during the said Term hereby demised, well and truly pay, or cause to be paid unto the said A. B. his Executors, Administrators or Assigns, the said yearly Rent or Sum of — Pounds, on the Days and Times, and in Manner and Form abovementioned, for Payment of the same, according
to the Reservation thereof as aforesaid, and the true Intent and Meaning of these Presents. And also, that the said C. D. his Executors, Administrators and Assigns, or some or one of them, shall and will, at his or their own proper Costs and Charges, well and sufficiently repair, uphold, support, maintain, and keep the said Messuage, or Tenement and Premises, with all, and all Manner of needful and necessary Reparations and Amendments whatsoever, when and as often as Need or Occasion shall be, or require, during the Term, (the Casualty of Fire, or Tempest, which may destroy the said Messuage, or Tenement and Premisses, or any Part thereof, only excepted.) And the said Messuage or Tenement, and Premises, being so well and sufficiently repaired, upheld, supported, maintained and kept, at the End of the said Term, or other sooner Determination of this present Demise, unto the said A. B. his Executors, Administrators, and Assigns, shall and will peaceably and quietly leave and yield up, (except as is before excepted.) And the said A. B. for himself, his Executors, Administrators, and Assigns, doth covenant and grant to and with the said C. D. his Executors, Administrators, and Assigns, that the said C. D. his Executors, Administrators, and Assigns, paying the said yearly Rent of — Pounds, above reserved in Manner aforesaid, and performing all and every the Covenants and Agreements herein before contained, which on his or their Parts and Behalfs are or ought to be paid, done and performed, shall and may peaceably and quietly have, hold, use, occupy, possess, and enjoy, the said Messuage or Tenement, and Premises, hereby demised, for and during the Term hereby granted, without any lawful Let, Suit, Trouble, or Interruption, of or by the said A. B. his Executors, Administrators, or Assigns, or any of them, or by any other Person or Persons lawfully claiming, or to claim, by, from, or under him, them, or any of them, or by or through his, their, or any of their Acts, Means, or Procurement. In Witness, &c.
Lease.
Form of a common Mortgage of Lands.
THIS Indenture, made — between A. B. of — of the one Part, and C. D. of — of the other Part, witnesseth, that the said A. B. for and in Consideration of the Sum of — to him in
Hand paid by the said C. D. the Receipt whereof he doth hereby confess and acknowledge, he the said A. B. hath granted, bargained, and sold, and by these Presents doth grant, bargain, and sell, unto the said C. D. all that Messuage or Tenement, and all those Lands, &c. fituate, lying, and being, in — and also the Reversion and Reversions, Remainder and Remainders, Rents and Services of the said Premises, and of every Part and Parcel thereof, with the Appurtenances: To have and to hold the said Messuage or Tenement, Lands and Premises above mentioned, and every Part and Parcel thereof, with the Appurtenances, unto the said C. D. his Executors, Administrators, and Assigns, for and during the Term of — Years next and immediately ensuing and following, and fully to be compleated and ended. Yielding and paying therefore yearly, during the said Term, one Pepper Corn, in and upon — if demanded: Provided always, and upon Condition, that if the said A. B. his Heirs or Assigns, do or shall well and truly pay, or cause to be paid, unto the said C. D. his Executors, Administrators, or Assigns, the full Sum of — in and upon the — Day of — next coming, or which will be in the Year — without any Deduction or Abatement whatsoever, either ordinary or extraordinary, that then and from thenceforth these Presents, and every Thing herein contained, shall cease, determine, and be void, any Thing herein contained to the contrary notwithstanding. And the said A. B. for himself, his Heirs and Assigns, doth covenant and grant to and with the said C. D. his Executors, Administrators, and Assigns, that he the said A. B. his Heirs or Assigns, shall and will well and truly pay, or cause to be paid, unto the said C. D. his Executors, Administrators, or Assigns, the said full Sum of — in and upon the said — without any Deduction as aforesaid, according to the true Intent and Meaning of these Presents. And also that he the said C. D. his Executors, Administrators, and Assigns, shall and may at all Times after Default shall be made in Performance of the Proviso or Condition herein contained, peaceably and quietly enter into, have, hold, occupy, possess, and enjoy, all and singular the said Messuage or Tenement, Lands and Premises above mentioned, and every Part and Parcel thereof, with the Appurtenances, for and during the Residue
and Remainder of the said Term of — Years hereby granted, which shall be then to come and unexpired, without the Let, Trouble, Hinderance, Molestation, Interruption, and Denial of him the said A. B. his Heirs and Assigns, and of all and every other Person and Persons whatsoever. And further, that he the said A. B. and his Heirs, and all and every other Person and Persons, and his and their Heirs, any Thing having or claiming in the said Messuage or Tenement, and Premises above mentioned, or any Part thereof, shall and will at any Time or Times, after Default shall be made in Performance of the Proviso or Condition herein contained, make, do, and execute, or cause or procure to be done, made, and executed, all and every such further and other lawful and reasonable Grants, Acts, and Assurances in the Law whatsoever, for the further, better, and more perfect granting and assuring of all and singular the said Premises above mentioned, with the Appurtenances, unto the said C. D. To hold to him, his Executors, Administrators, and Assigns, for and during all the Rest and Residue of the said Term of — Years above granted, which shall be then to come and unexpired, as by the said C. D. his Executors, Administrators, or Assigns, or his or their Council learned in the Law, shall be reasonably devised or advised, and required. And lastly, it is covenanted, granted, concluded, and agreed upon, by and between the said Parties to these Presents, and the true Meaning hereof also is, and it is hereby so declared, that until Default shall be made in Performance of the Proviso or Condition herein contained, he the said A. B. his Heirs and Assigns, shall and may hold and enjoy all and singular the said Premises above mentioned, and receive and take the Rents, Issues, and Profits thereof, to his and their own proper Use and Benefit; any Thing herein contained to the contrary thereof notwithstanding. In Witness, &c.
Mortgage.
Form of a Charter Party of Affreightment.
THIS Charter Party, indented, made, &c. between A. B. of — Mariner, Master and Owner of the good Ship or Vessel called — now riding at Anchor at — of the Burthen of — Tons, or thereabouts, of the one Part, and C. D. of — Merchant, of the other Part, witnesseth, that the said A. B. for
the Consideration herein after mentioned, hath granted and to Freight letten, and by these Presents doth grant and to Freight let, unto the said C. D. his Executors, Administrators, and Assigns, the whole Tonnage of the Hold, Stern Sheets, and Half-Deck, of the said Ship or Vessel, called — from the Port of — to — in a Voyage to be made by the said A. B. with the said Ship, in Manner hereafter mentioned (that is to say) to sail with the first fair Wind and Weather that shall happen after — next, from the said Port of — with the Goods and Merchandize of the said C. D. his Factors or Assigns on Board, to — aforesaid (the Dangers of the Sea excepted) and there unlade and make Discharge of the said Goods and Merchandizes: And also shall there take into and aboard the said Ship again, the Goods and Merchandizes of the said C. D. his Factors or Assigns; and shall then return to the Port of — with the said Goods, in the Space of — limited for the End of the said Voyage. In Consideration whereof the said C. D. for himself, his Executors, and Administrators, doth covenant, promise, and grant, to and with the said A. B. his Executors, Administrators, and Assigns, by these Presents, that the said C. D. his Executors, Administrators, Factors, or Assigns, shall and will well and truly pay, or cause to be paid, unto the said A. B. his Executors, Administrators, or Assigns, for the Freight of the said Ship and Goods, the Sum of — (or so much per Ton) within — Days after the said Ship's Arrival, and Goods returned and discharged at the Port of — aforesaid, for the End of the said Voyage; and also shall and will pay for Demorage (if any shall be, by the Default of him the said C. D. his Factors or Assigns) the Sum of — per Day, daily and every Day, as the same shall grow due. And the said A. B. for himself, his Executors, and Administrators, doth covenant, promise, and grant, to and with the said C. D. his Executors, Administrators, and Assigns, by these Presents, that the said Ship or Vessel shall be ready at the Port of — to take in Goods by the said C. D. on or before — next coming. And the said C. D. for himself, his, &c. doth covenant and promise, within — Days after the said Ship or Vessel shall be thus ready, to have his Goods put on Board the said Ship, to proceed on the said Voyage; and also on the Arrival of the said
Ship at — within — Days, to have his Goods ready to put on Board the said Ship, to return on the said Voyage. And the said A. B. for himself, his Executors, and Administrators, doth further covenant and grant to and with the said C. D. his Executors, Administrators, and Assigns, that the said Ship or Veisel now is, and at all Times during the said Voyage shall be, to the best Endeavours of him the said A. B. his Executors and Administrators, and at his and their own proper Costs and Charges, in all Things made and kept stiff, staunch, strong, well apparelled, furnished and provided, as well with Men and Mariners, sufficient and able to sail, guide, and govern the said Ship, as with all Manner of Rigging, Boats, Tackle, Apparel, Furniture, Provision, and Appurtenances, fitting and necessary for the said Men and Mariners, and for the said Ship, during the Voyage aforesaid. In Witness, &c.
Charter Party.
Form of a Bill of Bottomry.
TO all People to whom these Presents shall come, I A. B. of — Owner and Master of the Ship called — of the Burthen of — Tons, now riding at — and bound for — send Greeting. Whereas I the said A. B. am at this Time necessitated to take up, upon the Adventure of the said Ship, called — the Sum of — Pounds, for setting forth the said Ship to Sea, and furnishing her with Provisions for the said Voyage, which C. D. of — Merchant, hath on Request lent unto me, and supplied me with at the Rate of — Pounds for the said — Pounds: Now know ye, that I the said A. B. do by these Presents, for me, my Executors and Administrators, covenant and grant to and with the said C. D. that the said Ship shall with the first fair Wind after the — Day of — depart from the River — and shall, as Wind and Weather shall serve, proceed on her Voyage to — in — and having there tarried until — and the Opportunity of a Convoy, or being sooner dispatched (which shall first happen) shall return from thence, and shall, as Wind and Weather shall serve, directly sail back to the River — to finish her said Voyage. And I the said A. B. in Consideration of the said Sum of — to me in Hand paid by the said C. D. at and before the Sealing and Delivery of these Presents, do hereby bind myself, my Heirs, Executors, and Administrators, my
Goods and Chattels, and particularly the said Ship, with the Freight, Tackle, and Apparel of the same, to pay unto the said C. D. his Executors, Administrators, or Assigns, the Sum of — Pounds, of lawful Money, within — Days next after the Return and safe Arrival of the said Ship in the said River — from the said intended Voyage. And I the said A. B. do for me, my Executors and Administrators, covenant and grant, to and with the said C. D. his Executors and Administrators, by these Presents, that I the said A. B. at the Time of Sealing and Delivery of these Presents, am true and lawful Owner and Master of the said Ship, and have Power and Authority to charge and engage the said Ship as aforesaid; and that the said Ship shall at all Times after the said Voyage be liable and chargeable for the Payment of the — Pounds, according to the true Intent and Meaning of these Presents. And lastly, it is hereby declared and agreed, by and between the Parties to these Presents, that in Case the said Ship shall be lost, miscarry, or be cast away, before her next Arrival in the said River — from the said intended Voyage, that then the said Payment of the said — Pounds shall not be demanded, or be recoverable by the said C. D. his Executors, Administrators, or Assigns; but shall cease and determine, and the Loss thereby be wholly borne and sustained by the said C. D. his Executors and Administrators: And that then, and from thenceforth, every Act, Matter, and Thing, herein contained, on the Part and Behalf of the said A. B. shall be void; any Thing herein contained to the contrary notwithstanding. In Witness, &c.
Bill of Bottomry.
Form of a Power of Attorney.
KNOW all Men, by these Presents, that I — have constituted, made, and appointed, and by by these Presents do constitute, make, and appoint, my trusty and loving Friend — my true and lawful Attorney, for me, and in my Name and Stead, and to my Use, to ask, demand, sue for, levy, recover, and receive, all such Sum and Sums of Money, Debts, Rents, Goods, Wares, Dues, Accounts, and other Demands whatsoever, which are or or shall be due, owing, payable, and belonging to me, or detained from me, any Manner of Ways or Means whatsoever, by — Giving and Granting unto my said
Attorney, by these Presents, my full and whole Powers, Strength, and Authority, in and about the Premises, to have, use, and take, all lawful Ways and Means, in my Name, for the Recovery thereof; and upon the Receipt of any such Debts, Dues, or Sums of Money aforesaid, Acquittances, or other sufficient Discharges, for me, and in my Name, to make, seal, and deliver; and generally all and every other Act and Acts, Thing and Things, Device or Devices, in the Law whatsoever, needful and necessary to be done in and about the Premises, for me and in my Name to do, execute, and perform, as fully, largely, and amply, to all Intents and Purposes, as I myself might or could do if I was personally present, or as if the Matter required more special Authority than is herein given; and Attornies one or more under — for the Purpose aforesaid, to make and constitute, and again at Pleasure to revoke; ratifying, allowing, and holding, for firm and effectual all and whatsoever my said Attorney shall lawfully do in and about the Premises, by Virtue hereof. In Witness whereof I have hereunto set my Hand and Seal, this — Day of — in the — Year of his Majesty's Reign. Annoque Domini, —
Power of Attorney.
A Bill of Sale of Goods and Chattels.
KNOW all Men, by these Presents, that I A. B. of — in Consideration of the Sum of — to me in Hand paid by C. D. of — at and before the Sealing and Delivery of these Presents, the Receipt whereof I do hereby acknowledge, have bargained, sold, released, granted, and confirmed, and by these Presents do bargain, sell, release, grant, and confirm, unto the said C. D. — To have and to hold all and singular the said Goods, and every of them, by these Presents bargained, sold, released, granted, and confirmed, unto the only proper Use and Behoof of the said C. D. his Executors, Administrators, and Assigns, for ever. And I the said A. B. for myself, my Executors and Administrators, all and singular the said — unto the said C. D. his Executors, Administrators, and Assigns, against me the said A. B. my Executors, Administrators, or Assigns, and against all and every other Person and Persons whatsoever, shall and will warrant, and for ever defend, by these Presents. In Witness, &c.
Bill of Sale
Bill of Sale of Chattels, put in Pawn, in the Nature of a Mortgage, for Money lent.
KNOW all Men, by these Presents, that I, A. B. of — for and in Consideration of the Sum of — Pounds, lawful Money, to me in Hand paid by C. D. of — Merchant, the Receipt whereof I do hereby acknowledge, have bargained, sold, and delivered, and by these Presents do bargain, sell, and deliver, unto the said C. D. [here mention the Chattels] To have and to hold the said bargained Premises unto the said C. D. his Executors, Administrators, and Assigns, for ever. And I the said A. B. for myself, my Executors, and Administrators, shall and will warrant, and for ever defend, against all Persons, by these Presents, the said bargained Premises, unto the said C. D. his Executors, Administrators, and Assigns. Provided nevertheless, that if I the said A. B. my Executors, Administrators, and Assigns, or any of us, do and shall well and truly pay, or cause to be paid, unto the said C. D. his Executors, Administrators, or Assigns, the Sum of — Pounds, on the — Day of — next ensuing the Date hereof, with lawful Interest for the same, for Redemption of the said bargained Premises, then this present Bill of Sale to be void; or else to remain in full Force. In Witness whereof, I have hereunto set my Hand and Seal, the — Day of —
Mortgage of Chattels.
Form of a Common Bond for Money.
NORTH-CAROLINA.
KNOW all Men, by these Presents, That — held and firmly bound unto — in the full and just Sum of — to be paid unto the said — Heirs, Executors, Administrators, or Assigns: To the which Payment well and truly to be made and done, — bind — Heirs, Executors, and Administrators, jointly and severally, firmly by these Presents. Sealed with — Seal— and dated this — Day of —
Bond.
THE Condition of the above Obligation is such, that if the above bounden — his Heirs, Executors, or Administrators, do and shall well and truly pay, or cause to be paid, unto the said — Heirs, Executors, Administrators, or Assigns, the full and just Sum of — on or before the — Day of — next ensuing the Date hereof, with lawful
Interest for the same, then the above Obligation to be void; otherwise to remain in full Force and Virtue.
Condition of a Judgment Bond, the Form of the Bond being the same as above.
THE Condition of the above Obligation is such, that if the above bounden — his Heirs, Executors, or Administrators, do and shall well and truly pay, or cause to be paid, unto the said — his Heirs, Executors, Administrators, or Assigns, the full and just Sum of — on or before the — Day of — next ensuing the Date hereof, with lawful Interest for the same, then the above Obligation to be void; otherwise to remain in full Force and Virtue: But in Case of Default being made in Payment of the aforesaid Sum of — on the Day aforesaid, then I the said — do by these Presents authorize and impower — Attorney at Law, or any other practising Attorney in the said Province, to appear for me the said — at the Suit of the above-named — and receive Declaration, and confess Judgment thereupon, by Nil dicit cognovit Actionem non sum Informatus, or otherwise, releasing all the Errors, and Misprision of Errors; and for your, or any of your so doing, this shall be your Warrant.
Condition of a Judgment Bond
Given under my Hand and Seal as aforesaid, the Day and Year aforesaid.
A Letter of Licence from Creditors to a Debtor.
TO all People to whom these Presents shall come. We who have hereunto subscribed our Names, and affixed our Seals, Creditors of A. B. of — send Greeting. Whereas the said A. B. on the Day of the Date hereof, is indebted unto us the several Creditors hereunder named in divers Sums of Money, which at present he is not able to pay or satisfy, without Respite and Time to be given him for the Payment thereof: Know ye therefore, that we the said several Creditors, and each and every of us, have given and granted, and by Virtue of these our present Letters do give and grant unto the said A. B. full and free Liberty, Licence, Power and Authority, to go about, attend, follow and negotiate, any Affairs, Business, Matters and Things, whatsoever, to or at any Place or Places whatsoever, without any Let, Suit, Trouble, Arrest, Attachment,
or other Impediment, to be offered or done unto him the said A. B. his Wares, Goods, Monies, or other Merchandizes whatsoever, or any of them, or any Part of them, by us or by any of us, or by the Heirs, Executors, Administrators, Partners or Assigns, of us or any of us, or by our or any of our Means and Procurement to be sought, attempted, or procured to be done, for and during — next and immediately ensuing the Day of the Date hereof. And further, we the said Creditors hereunder subscribed do, and each of us doth covenant and grant for ourselves, our Heirs, Executors, Administrators, and Assigns, respectively, and not jointly one for another, nor for the Heirs, Executors, Administrators, or Assigns, of one another, to and with the said A. B. that we, or each or any of us, our Heirs, Executors, Administrators, and Assigns, or any of them, shall not, nor will, during the Time aforesaid, sue, arrest, attach, or prosecute the said A. B. for or upon Account of our respective Debts, or any Part thereof, or of any of them; and that if any Hurt, Trouble, Wrong, Damage, or Hinderance, be done unto the said A. B. either in Body, Goods or Chattels, or any of them, within the aforesaid Term of — next ensuing the Date hereof, by us, or any of us the said Creditors, or by any Person or Persons, or by or through the Procurement, Consent, or Knowledge of us, or any of us, contrary to the true Intent and Meaning of these Presents, that then the said A. B. by Virtue hereof, shall be discharged and acquitted for ever, against such of us the said Creditors, his and their Heirs, Executors, Administrators, or Assigns, by whom, and by whose Will, Means, or Procurement, he shall be arrested, attached, imprisoned, grieved, or damnified, of all Manner of Actions, Suits, Quarrels, Dues, Debts, Charges, Sum or Sums of Money, Claims and Demands whatsoever, from the Beginning of the World to the Day of the Date hereof. In Witness, &c.
Letter of Licence.
INDEX.| A. | Page. | Page. | |
| ACCESSARY, | 1 | Burial Places. See Churchwardens | |
| Addition, | 4 | Buying of Titles, | 82 |
| Adultery, | 5 | ||
| Affray, | 5 | C. | |
| Appeals, | 11 | CATTLE and Hogs, | 82 |
| Apprentices. See Orphans. | Certiorari, | 87 | |
| Arbitration, | 12 | Challenge. See Juries. | |
| Armour, | 13 | Champerty, | 89 |
| Arraignment, | 14 | Chancery, | 89 |
| Arrest and Imprisonment, | 14 | Cheat, | 93 |
| Assault and Battery, | 16 | Churchwardens, | 94 |
| Assembly, | 18 | Clergy, | 104 |
| Attachment, | 22 | Coin, | 107 |
| Attainder and Conviction, | 26 | Collectors. See Fees. Ships. | |
| Attorney, | 28 | Commitment, | 110 |
| Award, | 29 | Common Law, | 111 |
| B. | Common Prayer, | 113 | |
| BAIL, | 39 | Conjuration. See Witchcrast. | |
| Barratry, | 49 | Conspiracy, | 114 |
| Bastards, | 52 | Constable, | 115 |
| Behaviour, | 59 | Coroner, | 123 |
| Bigamy, | 70 | Counterfeit, | 131 |
| Bills of Exchange, | 71 | Counties, | 131 |
| Blasphemy, | 73 | Courts, | 132 |
| Boats and Canoes, | 74 | Criminals, | 135 |
| Bridges. See Roads & Ferries. | Customs, | 137 | |
| Buggery, | 75 | D. | |
| Burgesses, | 76 | DEBT, | 138 |
| Burglary, | 76 | Declaration, | 143 |
| Burning of Houses, | 80 | Deer, | 144 |
| Page. | Page. | ||
| Demurrer, | 146 | Burglary and Larceny, | 79 |
| Deodand, | 147 | House burning, | 81 |
| Divine Service, | 148 | Forcible Entry, | 190 |
| Dissenters, | 148 | Larceny, | 237 |
| Distress. See Rent. | Libel, | 242 | |
| Drunkenness. See Sunday. | Maintenance, | 247 | |
| E. | Nusance, | 263 | |
| Rape, | 288 | ||
| ELECTIONS. See Assembly. | Riot, | 302 | |
| Escape, | 155 | Imprisonment. See Arrest and Imprisonment. | |
| Evidence, | 157 | ||
| Execution, | 160 | Indentures. See Orphans. | |
| Extortion, | 161 | Infant, | 211 |
| F. | Information, | 211 | |
| FEES, | 162 | Insolvent Debtors, | 213 |
| Felony, | 174 | This Act since repealed. | |
| Feme Covert, | 180 | Judgment, | 215 |
| Fences. See Trespass. | Juries, | 216 | |
| Ferries. See Roads & Ferries. | Justices of Peace, | 225 | |
| Fire Hunting, | 181, 375 | ||
| Forcible Entry and Detainder, } | 182 | L. | |
| LARCENY, | 233 | ||
| Forestallers, Engrossers, and Regrators, } | 191 | Levies, | 237 |
| Libel, | 240 | ||
| Forefeiture, | 192 | Lord's Day, | 242 |
| Fornication. See Bastards. | M. | ||
| Forgery, | 194 | MAGNA Charta. See Statutes. | |
| G. | |||
| GAMING, | 195 | Maihem, | 245 |
| Gaol, | 190 | Maintenance, | 246 |
| H. | Manslaughter. See Murder. | ||
| HABEAS Corpus, | 200 | Marriages, | 248 |
| Hogstealing, | 200 | Mills, | 250 |
| Homicide, | 200 | Ministers. See Clergy. | |
| Horses and Mares, | 204 | Misdemeanor, | 251 |
| Horse stealing, | 205 | Misprision, | 252 |
| Hue and Cry, | 205 | Mittimus. See Warrants. | |
| Hunting, | 207 | Murder, | 254 |
| I. | Mute, | 261 | |
| INDICTMENT, | 208 | N. | |
| For an Accessary, | 4 | NAVAL Officer. See Ships. | |
| Affray, | 18 | Fees. Weights & Measures. | |
| Assault and Battery, | 18 | ||
| Barratry, | 52 | Nusance, | 262 |
