Historical Collections of Private Passages of State: Volume 3, 1639-40. Originally published by D Browne, London, 1721.
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Arguments Concerning Martial Law.
Whereas the Author did omit in his first Part to insert some Arguments made in the House of Commons, 4 Car. I. concerning Martial Law, which at that time he had mislaid, he doth now supply that Defect, and hath put them in the Appendix, being the Arguments (but imperfectly and briefly taken) of Sir Edward Coke, Mr. Noy, Mr. Banks, afterwards Attorney General and Lord Chief Justice, Mr. Mason, and Mr. Rolls, afterwards Lord Chief Justice of England; the Results of which Arguments are contained in the Petition of Right.
Mr. Banks at the Committee of the whole House concerning Martial Law.
I WILL say nothing to hinder the King's Service: Let us observe our Order, that the King's Supply and the fundamental Liberties go together. We have voted the Question, that of Meum and Tuum, and Liberty of Person: This now in question concerns Life and Member. I will not derogate from the Power of Kings; Subjects have their Right, and Kings their Prerogatives. The Ocean it self bounds it self within its Liberties, and Prerogatives have many hundred years gone together in sweet harmony. I shall not question that Point, whether in case a Commission of Martial Law duly granted, whether it will silence the Common Law; without all question it doth not, it deserves no Debate. In case of an Invasion of an Enemy, and the King marcheth with an Army, whether Martial Law may be then executed, that is not now the Question. But whether Commissions for Martial Law may be awarded in time of Peace, as this now is, that concerns Life and Death, I hold this Commission is against Law. I will remove an Objection out of 6 Hen. 8. in Kellway's Reports, where it is said that Fine*** told Hen. 8. it belonged to the Law of Arms to determine that Power; but I conceive that Opinion is no Law. The Common Laws regulate in what cases Commissions ought to be awarded, tho it hath no Jurisdiction in them, as in the Admiral Court, or Martial Courts; if they take cognizance of Cases that belong to the Common Law, the Common Law grants Prohibitions, the Common Law is the Judge of other Courts, to keep them in their due Bounds; this we see is the daily course in Prohibitions, and the Kings-Bench doth regulate other Jurisdictions. So tho the Common Law define not, nor set down the Law of Arms, yet the Law sets down when they are to be exercised, and how. I will speak nothing to oppose Authority; we will not be Authors of new Opinions, but maintain the old.
My first Reason is, the King's Commission under the Great Seal cannot alter the Common Law, but this Martial Commission in time of Peace alters the Law. For the Propositions, that the King by his Letters Patents and Commission under the Great Seal cannot alter the Law; 39 H. 7. 24. the King granted a Protection with a non obstante in a qua Imp. and was void. 6 H. 7. 4. 11 H. 7. 24. the King granted a Leet to enquire for Rapes, and it was void. 36 H. 8. Br. 280. the King cannot grant that an Alien shall be Heir to his Father. 37 H. 8. Br. 310. the King cannot grant Land to be devised. H. 11. Jac. a Grant to the Universities to proceed according to the Civil Law was a void Grant, and it was so resolved by the Justices in the common Bank.
But this Commission for Martial Law alters the Common Law; for it extends to all that joyn with Soldiers, it is no dash of a Pen that dashes or takes away many a Man's life. In that course a Man shall suffer death without a Jury and Tryal, and so against the Law; and also small Offences are made capital, which are not by the Common Law. Also great care ought to be had by the Commissioners. 2 E. 3. C. 2. provides that Commissions of Oyer and Terminer be not granted but for horrible Offences, and that before the Justices of the one Bench or the other. Persons of ordinary quality are not to be Commissioners in this great Commission. 13 R. 2. C. 3. regulates the Jurisdiction of the Constable and Martial, that goes only to such as cannot be determined by the Common Law. But these Offences now may be determined by the Common Law. The Commission of Oyer and Terminer is a Service of great Expedition; if that Commission be awarded, they may make as great speed as they please. Also this Commission is against the Law: For this ought only to be awarded in time of War or inevitable necessity.
8 E. 4. 29 H. 8. Dy. 36. A House that is of a fire may be pulled down: We have no time of War, when the Courts of Justice are open in Westminster and other Jurisdictions: Also the Law provides that in time of War there be Provision.
I agree in some particular cases the Martial hath Jurisdiction, as in matters whereof the Common Law can take no notice, being done out of this Realm, and also for Treasons and Murders beyond Sea. 37 H. 6. 20. if one call me a Traitor, an Appeal will lie before the Constable and Martial; for it doth not lie at the Common Law, in respect of this, that the Kingdom cannot alter the Law.
Mr. Mason of Lincoln's-Inn concerning Martial Law.
The Commission gives power to proceed against Soldiers or Mariners, or any that joyn with them, and to proceed according to Martial Law. The execution is referred to Instructions, the punishment there appointed is Death, it falls into debate how far this extends: It was said, it extends only to Soldiers; but as it goes, it is to such as shall joyn with them; and the Commissioners are to judge who joyns with Soldiers, and they may execute them. But say it extends only to Soldiers, power to press Soldiers is not now to be disputed: I have known a Lord Lieutenant give leave to a Muster-Master to press a Man for a Soldier, and the Party refused, and he was committed by this Commission, such a one may be taken and hanged. It is said, that we have yet sustained no prejudice by this Commission: But Want comes on as a Traveller; all Innovation comes in gently at the first, and it grows strong by degrees. Hereafter it will not be for us to say, the Commissioners have not executed the Trust committed to them.
It was said the Gentlemen of the Country are only Commissioners, but since that a second Commission went out, and divers Captains and Commanders are put in, and they are to joyn with them: and we all know and admit, in the time of War, when the King's Courts are shut, the Law Martial may be executed. In the time of Rebellion the Sheriff hath Custod. Comitat. and all Earls and Lords are to assist him, and he is to raise the Country to resist them. 16 E. 43. the Rebels that rose then the Sheriff was bound to suppress them. 11 E. 44. and 6. Fauconbridge committed many Outrages and en faux Imprisonment: le def. pl. fait inter mix que raise Armies, and there were 20000 Rebels, but then I saw no Martial Law, but he was brought to London, and there executed. 18 H. 6. that Statute is, That he that hath received Wages, and departs, it is Felony. That Statute were void, if the Commissioners by Martial Law may hang him. 2 E. 6. divers Soldiers made away their Arms and Horse. That Statute is, they shall be imprisoned: But if they might have been punished by Martial Law, that Statute had been void; also by Martial Law he ought to be punished by Death.
Object. An Army cannot wait legal Proceedings. I answer, If an Army be in the Field, the Common Law allows Martial Law, and also the Jurisdiction of the Admiral is part of the Common Law; and then there is placita exercitus, and there may be a Jury raised presently by the Martial Law, and this is legal.
12 H. 7. In dorso Pat. two Letters Patents were directed to the Earl of Oxford that recited that divers Rebels did levy War, &c. and power was given to suppress them, & facere omnia qua ad officium Constabular. Martiali pertinent secundum Legem & consuetudinem ante u sit at. 15 H. 7. 2. pars Patent. there was a Patent to the same purpose: When an Army is in the Field the Marshal is Judge, and he is to judge according to the Law Martial.
1 E. 3. prima pars memb. 21. Parliament Roll. The Earl of Lancaster exhibits a Petition to the Parliament, and shews that his Father was executed contrary to the Law, and the Record was produced placita coram Domino Rege; whereas seven Earls were before the King, and the said Earl was sent for before the King and the said seven Earls; and the said Earl was accused, that with Banners displayed they had raised Commotion; and this was notoriously known, and he was adjudged to be beheaded and hanged.
The Error is assigned in the Record, that in time of Peace every Subject ought to be arraigned according to the Law of the Land, and he set forth that it was in time of Peace; for during the Rebellion and Conviction the Chancery and the other Courts were open, and so he ought to be adjudged by the Law of the Land, and not otherwise.
Also the said Earl of Lancaster was Peer of the Realm, and he was not tried by his Peers, which was contrary to the Law, and the tenour of the great Charter; and therefore it was considered by the King, the Lords and Commons, that Judicium fuit nullum & vacuum in Lege; there was a Rebellion at that time, the King himself was present at the Conviction, which was stronger than here before Commissioners, and yet that was against the Law.
Mr. Rolls, afterwards Lord Chief Justice Rolls, at the Committee for Martial Law.
In this Disputation I will not trench on Power, but the abuse of it. 37 H. 6. 20. the Law of the Marshal is the King's Law, and the Common Law takes notice of it; we acknowledge it so to be, but now the Question is, when it is to be used.
Potestas vitae & mortis belongs now to the Common Law, or to the Martial. The Question is now when this Martial Law is to be used, and upon whom the Common Law is the highest for the Subject. 7 H. 8. Kellway 176. every Liege Man inherits the Law. 19 H. 6. 63. it is the Inheritance of the King, this great Inheritance is not to be taken from him, and Martial Law is merely for necessity, where the Common Law cannot take place. Now for the time when that necessity falls our, in time of Peace it cannot, so we must consider when is time of Peace or War.
If the Chancery and Courts of Westminster be shut up that are Officina Justitiæ, it is time of War, but if the Courts be open it is otherwise; yet if War be in any part of the Kingdom, that the Sheriff cannot execute the King's Writ, there is tempus belli.
If an Enemy come into any part where the Common Law cannot be executed, there may the Martial Law be executed. If a Subject be taken in Rebellion, if he be not slain in the time of his Rebellion, he is to be tried after by the Common Law. 2 H. 5. Parliament Roll, 2 Pars, John Montague, Earl of Salisbury, was in Rebellion against H. 4. and was taken and put to death, 2 H. 4.
In 2 H. 5. his Son brought an Error, and assigned that he was a day and half in Prison after his Apprehension, and was put to death without due Trial at Law, contrary to Magna Charta. There is no necessity of Martial Law, but if an Alien Enemy come into the Realm, he cannot be executed by the Common Law, for he is not a Liege of the King's, and so is to be tried by Martial.
If the Martial Law in time of Peace should be executed on Soldiers, that were a great dishonour and prejudice to them, the King may make Commissioners to them that are not Soldiers, or the Lord General only, so they shall be worse than other Subjects; if there be a Body of an Army going out of the Kingdom, there is no necessity of Martial Law, but for Discipline the Marshal and Constable may use the Martial Law, but to execute them they cannot, if they have not a Commission of Oyer and Terminer. 5 H. 4. rot. 24. Parliament Roll, a Commission to provide an Army was sent down from the Lords to the Commons, which was there amended, and by that Commission it was directed, that in every County the Sheriff and others may arm and muster Men ad inimicos Regis destruendos & debellandos & amicos qui in hac parte resistant, and will not be mustered: He doth not say that they shall execute, but that they shall be imprisoned donec aliud inde ordinarimus. If this Martial Law be used, the King will lose his forfeitures of Attainder. 7 H. 4. 46. Martin: If a Man be slain in Rebellion against the King, he may be attainted after his death. 15 E. 3. Petition, the Chief shall view his body: 34 E. 3. ca. 12. sets forth how he shall be attainted after his death. Of the five Volumes of the Roman Law, one part is spent in Martial Law, and the Title is de re militari, but that Law teacheth us to ask the Common Law. Delictum militum is either Commune delictum, as Murder, Felony, &c. or militare delictum, as to lose and fell their Arms. Delicta militaria by the Common Law deserves not a phillip, as by the Common Law delicta levia are to be punished by the Magistr. Milit.
What is time of Peace? In Henry the Third's time, in the Battel of Lewis unto the Battel of Ewsham, it was a time of War, a Descent; not away Entry; and a Feoffment then was void, if they were not both of one side, and this time of War is enter'd in the Register-Book in the Exchequer, and yet the Courts of Justice were then open, and the Parliament Rolls at that time are yet extant. 24 E. 1. the King went into Scotland, there were placita exercitus, and it begun at Easter, and yet then the Chancery was open and Writs went out, which are yet to be seen. As for the Earl of Lancaster, he drew Forces together and killed many, and was taken and carried to Pomfret, and had a Judgment, and they never call'd him to answer for himself; but they made a Record of his Rebellion, and the King adjudged he should be executed, forfeit his Lands; and this was reversed, because the King's Court was open, and no Man must spill the blood of War in Peace, but if he had been slain in Battel it had been good, or if he had been in Exercitu, and pro hominibus de Exercitu. So in the time of Queen Eliz. 2. Commissions were granted for Martial Law pro hominibus de Exercitu and in Exercitu, and some were executed, and their Heirs afterwards reversed the Judgments: when the Judgments were given it was a time of Peace, and there is great reason they should be reversed, the Commission was by the King to divers ad Justitiam reddend. juxta tenorem cujusdam Schedule annexed, and with this Commission they sent the very Judgment it self, Because you did thus, &c. Now to make Justices, and to prescribe a Judgment in such a form against one that was never called to answer, was against the Law Martial. Law is necessary to an Army, and to Men of the same Army. This Commission is not justifiable, for tho it were intended for the Army, it is somewhat too large, it extends to the Soldiers and Mariners, and others that join with them; the Mariners have a Law by themselves, both cannot be under one Law. All old Commissions are inter homines de Exercitu and in Exercitu. It is a hard Law for the Soldier to have all his Laws writ in Death. It is very terrible, and it will make them hate them that have that power.
For the time of Execution of it; when there is an Army, our Law allows Martial Law, if there be an Army, that is in expectance of an Enemy, but had not the Martial Law at the beginning of raising his Army, but when the Army was brought together, and the Enemy was to approach he had it then. But now no Enemy is approaching.
Sir Edward Coke concerning Martial-Law.
I Shall maintain Jus belli. But God send me never to live under the Law of Conveniency or Discretion. Shall the Soldier and Justice sit on one Bench? the Trumpet will not let the Crier speak in Westminster-Hall. Non bene conveniunt.
The time of Peace, is when the Courts of Westminster are open. For when they are open, then you may have a Commission of Oyer and Terminer; and where the Common-Law can determine a thing, the Martial-Law ought not.
Drake slew Doughty beyond Sea. Doughty's Brother desired an Appeal in the Constable and Marshals Court, and Wray and the other Judges resolved he might there sue. We make no Law, we must not mediate ubi Lex non distinguit. To hang a Man tempore pacis is dangerous, I speak not of prosecution against a Rebel, he may be slain in the Rebellion; but if he be taken, he cannot be put to death by the Martial-Law. 28. E. 2. M. 13. When the Courts are open, Martial-Law cannot be executed. 5 H. 4. and 30. Willmon's Case, the Constable and Marshal desired an addition to their Commission, and they proceeded against some according to that Power; but because it was not according to their antient Power, it was void, for they cannot do any thing according to that additional Power, and there was a Prohibition to stay their Proceedings by virtue of that additional Power: How shall the Soldiers know how to obey them? they are not under the Great Seal.
A Commission to the Lords, and others of the Privy Council, for putting in Execution of the Laws and Statutes for Relief of the Poor, Punishment of Rogues, and Imployment of Gifts to Charitable Uses. Jan. 5. 1630.
A Commission to the Lords, and others of the Privy Council, for putting in Execution of the Laws and Statutes for Relief of the Poor, Punishment of Rogues, and Imployment of Gifts to Charitable Uses. Jan. 5. 1630.
- Henry Earl of Manchester, Keeper of our Privy Seal.
- Robert Earl of Lindsey, Lord Great Chamberlain of England.
- Thomas Earl of Arundel and Surrey, Earl Marshal of England.
- Philip Earl of Pembroke and Montgomery, Lord Chamberlain of our Houshold.
- Theophilus Earl of Suffolk, Lord Warden of our Cinque Ports.
- Edward Earl of Dorset, Lord Chamberlain to our Dearest Confort the Queen.
- William Earl of Salisbury.
- William Earl of Exeter.
- John Earl of Bridgewater.
- James Earl of Carlisle.
- Henry Earl of Holland.
- William Earl of Banbury.
- Henry Earl of Danby.
- William Earl of Moreton.
- Thomas Earl of Kelly.
- Edward Viscount Wimbledon.
- Dudly Viscount Dorchester, one of our Principal Secretaries of State.
- Thomas Viscount Wentworth, Lord President of our Council in the North Parts.
- Oliver Viscount Grandison.
- Henry Viscount Faulkland.
- And likewise to the Reverend Fathers in God, our Right Trusty and Well-beloved Counsellors, William Lord Bishop of London.
- Richard Lord Bishop of Winchester.
- And also to our Right Trusty and Well-beloved Counsellors, Edward Lord Newburgh, Chancellor of our Dutchy of Lancaster.
- Sir Thomas Edmunds, Knight, Treasurer of our Houshold.
- Sir Henry Vane Knight, Comptroller of our Houshold.
- Sir Thomas Jermyn, Knight, Vice-Chamberlain of our Houshold.
- Sir Robert Naunton, Knight, Master of our Court of Wards and Liveries.
- Sir John Cook, Knight, one other of our Principal Secretaries of State.
- Sir Francis Cottington, Baroner, Chancellor of our Exchequer.
- Sir Julius Caesar, Knight, Master of the Rolls.
- And Sir William Alexander, Knight, Greeting.
Whereas divers good Laws and Statutes, most necessary for these times, have, during the happy Reign of Queen Elizabeth, and of our late Father of Blessed Memory, and since our coming to the Crown of England, been with great Wisdom, Piety and Policy, made and enacted in Parliament, as well for the Charitable Relief of aged and impotent poor People, not able by their Labours to get their livings; and for the training up of Youth in honest and profitable Trades and Mysteries, by putting them forth to be Apprentices, as also for setting to work of idle Persons, who being of ability to work, in some kind or other, do nevertheless refuse to labour, and either wander up and down the City and Country begging, or which is worse, maintain themselves by silching and stealing; and for the Punishment of sundry Rogues and Vagabonds, and setting of them to work; and for the suppressing of that odious and loathsom sin of Drunkenness, and the repressing of Idleness, the root of so many Evils: The due execution of which, and the like Laws and Statutes would prevent and cut off many Offences and Crimes of high nature.
And whereas we are informed that the defect of the execution of the said good and Politick Laws and Constitutions in that behalf made, proceedeth especially from the neglect of Duty in some of our Justices of the Peace, and other Officers, Magistrates, and Ministers of the Peace within the several Counties, Cities, and Towns Corporate of this our Realm of England, and Dominion of Wales, to whom the care and trust of seeing the said Laws to be put in execution, is by the said Laws principally committed; which remisness and neglect of Duty doth grow and arise from this, that by the most of the said Laws, there are little or no Penalties or Forfeitures at all inflicted upon the said Justices of Peace, Magistrates, Officers, and Ministers for not performing their Duties in that behalf, or if any be, yet partly by reason of the smallness thereof, and partly by reason of their Power and Authority in their several Places, whereby they hold others under them in awe, there are few or no Complaints or Informations made of the neglects and want of due execution of the Offices of the said Justices and other Ministers; And altho the care and diligence of our Judges and Justices of Assize be never so great, yet by reason of the shortness of their Assizes and Sessions in every County, and multiplicity of business, they neither have due Information of the said neglects, nor in those times can take such exact Courses as were requisite for redress of such general Abuses and Inconveniencies so highly importing the publick good of this our Realm, by reason whereof the said Justices of Peace, Magistrates, Officers and Ministers are now of late in most parts of this our Kingdom grown secure in their said negligence, and the said politick and necessary Laws and Statutes laid aside, or little regarded as Laws of small use and consequence whereas upon the present making of the said Laws, the same being then duly executed, as also at this day in some Counties and part of this our Kingdom; where some Justices of Peace, and other Magistrates do duly and diligently execute the same, there evidently appeareth great Reformation, Benefit and Safety to redound to the Common-Wealth. And likewise whenas there was care taken, and diligence used to have the Laws concerning charitable Uses well executed, and all pious Gifts to be employed according to the good intent of the Donors, these poor People were better reliev'd than now they are. All which we taking into our Princely care for the Preservation of the Common Peace of this Realm, the performance of mens pious Intentions in their gifts of Charity, and the general good and quiet of our Subjects
After long and mature Deliberation, finding that there is no better ways or means to have the said Laws and Statutes put in full Execution, than by committing the trust and oversight thereof to the special care and industry of certain Persons of principal Place, Dignity, and Order near unto our Person: Who upon their diligent enquiry how the said Laws and Statutes are put in Execution, may be able upon all Occasions from time to time to give us particular Information thereof, and by their approved Wisdoms, Experience and Judgments, give Directions, and Instructions from time to time for the better Execution of the said Statutes.
Know ye therefore that we out of that long Experience and full assurance we have had of the great Integrity, Wisdom, Fidelity, and Industry of you, and every of you, have constituted, authorized, and appointed you to be Our Commissioners, and by these Presents do constitute, authorize, and appoint, and strictly require you, or any four or more of you our Commissioners, either by Examination upon Oath, or without Oath, or by all and every such good and lawful means, as to you, or any four or more of you, in your Wisdoms and Judgments shall seem convenient and requisite from time to time from henceforth to make enquiry, and thereby to inform your selves how all and every the Laws and Statutes now in Force which any way concern the Relief of impotent or poor People, the binding out of Apprentices, the setting to work of poor Children, and such other poor People, as being able or willing to work have no stock or means to employ themselves; the compelling and forcing such lazy and idle Persons to work, as being of bodies able and strong, do nevertheless refuse to labour; the maintenance, government, and well ordering of houses of Correction, and other places for relief of poor, indigent and impotent People, the rating, collecting, and Imployment of all such Sums as by the Statute of the three and fortieth of Elizabeth are appointed for the Relief of Soldiers and Mariners, the punishment, or setting on work of Rogues and Vagabonds: And all Laws and Statutes now in force for the repressing of Drunkenness and Idleness, the reforming of Abuses committed in Inns and Alehouses, the abridging of the number of Alehouses, and the well ordering of such as are licensed, the keeping of Watches and Wards duly, and how other publick Services for God, the King, and the Common-wealth are put in practice and executed.
To which end and purpose, to you our Commissioners, or any six or more of you, we give full Power and Authority from time to time hereafter, to give such Directions and Instructions, and by all other good and lawful means to set down, and give such Orders and Directions, as that all and every the said Laws and other necessary Statutes may be duly and effectually executed, and the Pains and Penalties thereof levied and imployed according to the purport and true meaning of the same Laws.
And whereas no Nation of the world hath provided more liberally, or ordained better Laws for due imployment of Lands, Goods, and Stocks of Money, given to charitable uses, than this our Kingdom of England hath done: Yet nevertheless the said Bounties and charitable Gifts have not been employed according to the mind and intent of the Givers, by reason of some Devices, Frauds, breach of Trust, aim at private Gain, and partly by the negligence of those that have been trusted to perform the same.
Therefore our Will and express Pleasure is, that those Statutes of the thirty ninth and forty third of Elizabeth, and all other Laws and Statutes concerning Hospitals, Alms-houses, Maisons de Dieu, and other pious Donations, and Collections, or publick Gifts for the benefit of the Poor, or publick Works, be strictly inquired and put in Execution: And all Deeds of Foundations, Charters, Wills, Devices, dispositions of Lands, Goods, Annuities, or Rents, given, appointed, or intended to any the Houses aforesaid, or to any charitable Use or publick Work, be diligently sought out and discovered, to the end there may be an employment of all Profits, according to the will, and mind of the Donors or Founders.
And we do further by these Presents, give full Power and Authority unto you, or any six, or more of you, to call unto you for your assistance in the Premises, when you shall see it needful, all, or any of our Justices of Assize, as often as you shall see cause, and to give such Directions and Instructions by your Letters, or otherwise, as well to our said Justices of Assize, Oyer and Terminer, and Goal-delivery, for their several Circuits: As also to our Justices, Mayors, Bayliffs, and other head Officers, within Cities and Boroughs, Clerks of the Asssize and Sessions, and other Officers and Ministers within our several Counties and Shires of this our Realm of England, and Dominion of Wales, and the several Divisions of the same, as to you, or any six or more of you in your Wisdom shall seem meet and requisite, and shall be agreeable to the Laws and Statutes of this our Realm for the better execution of the Laws and Statutes in the time to come. All which Directions, Instructions, and Orders at any time or times hereafter so to be made or taken by you, or any six or more of you, by force of these Presents; we will and straitly charge and command you by these Presents, to be sincerely and duly from time to time obeyed, observed, and kept, by all and every Officer and Officers, Justice and Justices, Person and Persons, to whom it shall appertain.
And we do hereby, further will and require you, that you, or any four or more of you, do from time to time give unto us particular and true Information of the care and industry of our Justices of the Peace in their several Divisions, Mayors, Bayliffs, and head Officers, in their several Cities and Towns Corporate, as upon the said enquiry you shall find to be diligent in putting the said Laws, Statutes, Orders and Directions in Execution, thatso by their service and your report, they appearing to deserve well of their King and Country, may receive not only good acceptance at our Hands, but all due encouragement and comfort to continue in their well-doings. And if contrariwise you shall find any of our said Justices of Peace, or other the persons before-named to be negligent and remiss in their several places and duties touching the performance and execution of the said Laws and Statutes committed to their charge, or the Orders and Directions given by you, or any six of you, for the better execution of the said Statutes: Then our Pleasure is, that you do likewise certifie the names of such as you shall find so remiss and negligent, that accordingly order may be taken for their removing and displacing out of the Commission of the Peace, as Men unworthy of their said Trust and Places; as also deserving to receive such further punishment in our Court of Star-Chamber, or otherwise, as may be by Law inflicted upon them.
And further we do by these Presents give unto you, or any six or more of you, full Power and Authority to do and execute all and every other lawful and necessary Act and Acts, thing and things for the better and more due execution of the Premises, or any of them, as you, or any six or more of you, shall in your Wisdoms and Judgments think to be fit and convenient.
And because you that are Attendants upon our Person, or otherwise imployed in our Services, cannot at all times be in Person in the several Shires of this our Kingdom to execute this our Commission in such sort as we have appointed it; and for that it will be very fit and requisite for you to have Persons of Trust under you, who may faithfully assist you in the execution of this our Commission:
We do therefore give unto you for your better Aid and Assistance, and the better performance of this our Service, full Power and Authority from time to time, to assign, appoint, and constitute by your Writing under your Hands and Seals, or the Hands and Seals of any six or more of you, such sufficient meet Persons as you, or any six of you, in your discretions shall from time to time think fit and appoint to be your Deputies in every, or any County, City, Borough, or Town Corporate of this our Kingdom of England, or Dominion of Wales.
And we do give unto such Persons, so to be by you deputed, assigned, and appointed, as aforesaid, or to any two, three, or more of them, full Power and Authority, to do and execute in our said Counties, Cities, Boroughs, and Towns Corporate, as well within Liberties as without; all and every thing and things, which by virtue of this our Commission, is to you our principal Commissioners, intrusted and committed, or which you or any of you our Commissioners, if you were personally present, might, or ought to do; they your said Deputies pursuing such Directions and Instructions from time to time as you or any six of you shall give unto them in writing. And the better to enable them so to do, you shall deliver to such Deputies as you shall make in every County, City, or Town Corporate, as aforesaid, a Duplicate, or true Transcript of this our Commission, subscribed with your Hands, or under the Hands of six of you at the least.
And we do further by the Tenour of these Presents, will and command, and do give full Power and Authority to our Lord Chancellor, or Lord Keeper of our Great Seal for the time being, to cause several Commissions to be made forth, under our Great Seal of England, to such Persons of Trust and Quality, as any six or more of you shall from time to time nominate unto him, and shall so signifie unto him by writing under your Hands to the same Tenour and Effect, in every material thing, as in these our Letters Patents is expressed, with a Clause to be inserted in every such Commission and Commissions, commanding such Persons so to be nominated, that they certifie all their Proceedings thereupon to you our foresaid Commissioners, or to any six of you, at such times and places as you, or any six of you shall appoint. In Witness whereof, we have caused these our Letters to be made Patents. Witness our Self at Westminster the fifth day of January, in the sixth Year of Our Reign.
- I. That the Justices of Peace of every Shire within the Realm do divide themselves, and allot among themselves what Justices of the Peace, and what Hundreds shall attend monthly at some certain places of the Shire. And at this day and place, the High Constables, Petty Constables, and Churchwardens, and Overseers for the Poor of those Hundreds, shall attend the said Justices. And there enquiry shall be made, and information taken by the Justices how every of these Officers in their several Places have done their duties in execution of the Laws mentioned in the Commission annexed, and what Persons have offended against any of the said Laws.
- II. Where neglect or defect is found in any of the said Officers, in making their Presentments, condign punishment to be inflicted upon them by the Justices according to Law.
- III. When Offences are presented at one meeting, then the Penalties of the Laws offended, to be levied and brought to the Justices at their next meeting.
- IV. When the Penalties are levied, the Justices are to take care that the same be imployed accordingly as by the Statutes are appointed.
- V. For encouragement to Men that do inform and prosecute others for offending against these Laws, or any of them, liberty to be left to the Justices of Peace that do meet to reward the Informer or Prosecutor, out of part of the Money levied upon his, or their Presentments or Information.
- VI. That the several Justices of the Peace of every Shire do once every three Months certifie an account in writing to the High Sheriff of the County, of their Proceedings in this way, whom they have punished, what they have levied, and how they have imployed it.
- VII. That the High Sheriff, within fourteen days after this Account delivered, do send the same over to the Justices of Assize for that County, or to one of them, and the Justice or Justices that receive the same, to certifie it in the beginning of every Term next after to the Lords Commissioners: And if any of the Justices of Peace shall fail to make such account to the Sheriff, then the Sheriff shall certifie such default to the Lords Commissioners.
- VIII. The Justices of Assize in every Circuit, are to enquire, and especially to mark what Justices of the Peace are careful and diligent in execution of these Laws, and the directions given, and who are negligent and remiss. And what other things of Note happen in their Circuits, to make report thereof to the King, upon their return from their Circuits every half year .
- I. That the Lords of Mannors and Towns take care that their Tenants and the Parishioners of every Town may be relieved by work, or otherwise at home, and not suffered to straggle and beg up and down in their Parishes.
- II. That Stewards to Lords and Gentlemen, in keeping their Leets twice a year, do especially enquire upon those Articles, that tend to the reformation or punishment of Common Offences and Abuses, as of Bakers and Brewers, for breaking of Assizes; of Forestallers, and Regraters; against Tradesmen of all sorts, for selling with under weights, or at excessive prizes or things unwholesom, or things made in deceit: Of People, Breakers of houses, common Thieves and their Receivers; Haunters of Taverns or Alehouses those that go in good Clothes, and fare well, and none knows whereof they live: those that be Night-walkers; builders of Cottages, and takers in of Inmates: Offences of Victuallers, Artificers, Workmen, and Labourers.
- III. That the poor Children in every Parish be put forth Apprentices to Husbandry, and other Handy-crafts, and money to be raised in the Parishes for placing them, according to the Law; and if any party shall refuse to take the said Apprentice, being put out according to the Law, such party as shall refuse to take the said Apprentice, to be bound over to the next Quarter Sessions, or Assizes, and there to be bound to his good Behaviour, or otherwise ordered as shall be found fit.
- IV. That the Statute of Labourers, for retaining of Servants, and ordering of Wages betwixt the Servant and the Master, be not deluded by private Contracts, before they come to the Statutes; and the common fashion of Essoyning many absent, not to be allowed of course, as is used.
- V. That the weekly Taxations for relief of the Poor, and other purposes mentioned in the Statute of 43 Eliz. be in these times of Scarcity raised to higher Rates in every Parish, than in times tofore used. And Contributions had from other Parishes to help the weaker Parishes, especially from those places where Depopulations have been, some good Contribution to come, for help of other Parishes. And where any money or Stock hath been, or shall be given to the relief of the Poor in any Parish, such gift to be no occasion of lessening the Rates of the Parish.
- VI. That the Petty Constables in all Parishes be chosen of the abler sort of Parishioners, and the Office not to be put upon the poorer sort, if it may be.
- VII. Watches in the night, and Warding by day, and to be appointed in every Town and Village, for apprehension of Rogues, and Vagabonds, and for safety and good order.
- VIII. And because it is found by daily experience, that the remisness and negligence of Petty Constables is a great cause of the swarming of Rogues and Beggars; therefore the High Constables in their several Divisions are specially to be charged to look unto the Petty Constables, that they use diligence in their Offices, and the High Constables to present to the Justices of Peace the defaults of the Petty Constables, for not punishing the Rogues, or not presenting those that are relievers of the Rogues and Beggars, the Law inflicting a Penalty upon the Constable for not punishing them, and upon such Party as shall relieve them.
- IX. If in any Parish there be found any Persons that live out of Service, or that live idlely, and will not work for reasonable Wages, or live to spend all they have at the Alehouse, those persons to be brought by the High Constables, and Petty Constables to the Justices at their meeting, there to be ordered and punished as shall be found fit.
- X. That the Correction-houses in all Counties may be made adjoyning to the Common Prisons, and the Goaler to be made Governour of them, that so he may employ to work Prisoners committed for small Causes, and so they may learn honestly by Labour, and not live idlely and miserably long in Prison, whereby they are made worse when they come out than they were when they went in; and where many Houses of Correction are in one County, one of them at least to be near the Goal.
- XI. That no man harbour Rogues in their Barns, or Out-houses: And the wandring persons with Women and Children, to give account to the Constable or Justice of Peace, where they were married, and where their Children were christened; for these People live like Savages, neither marry, nor bury, nor christen, which licentious liberty makes so many delight to be Rogues and Wanderers.
- XII. And because the High-ways in all Counties of England are in great decay, partly so grown for that men think there is no course by the Common Law, or order from the State to amend the same; and the Work-days appointed by the Statute are so omitted or idlely performed, that there comes little good by them; therefore the Justices of Peace at these monthly meetings are to take special care of, and not only to cause the Surveyors of the Highways to present the same, but by their own view to inform themselves, that at the next Quarter Sessions after every meeting they may present all such neglects and offences, (as upon their own view) and the Offenders there to be punished according to Law.