town doth exclude them. And the juftices for the county seem to be under no neceffity of informing themselves of the contents of a commiffion, which they have nothing to do with. Yet if they have exprefs notice given them of fuch a restraining claufe, and proceed to act within such town in defiance of it, they may perhaps be punishable for their contempt of the king's prohibition; and yet perhaps it may be queftioned whether their acts be void, for the reafons above-mentioned. 2 Haw. 37.

And L. Hale, treating on the fame fubject, fays, if the king by charter grant to a corporation, that the mayor, and recorder, or other, fhall be juftices within the fame, yet if there be no words of exclufion, the justices of the county have a concurrent jurifdiction: But if this franchife of being juftices be granted, fo that the juflices of the county fhall not intermeddle (fe non intromittant); then tho' a fubfequent commiffion be granted in the county at large, it seems they have no jurifdiction in this corporation or town; yet it is questionable, whether an indictment in the franchife be void, or only a contempt in the juftices. 2 H. H. 47.

But in the cafe of Talbot and Hubble, T. 14 G. 2. The queftion was, whether, as the city of New Sarum had an exclufive commiffion of the peace, the juftices of the county of Wilts could by virtue of the 12 C. 2. c. 23. & 15 C. 2. 4. 2. act in excife matters within the city. This cafe was argued three times at the bar, and this term Lee Ch. J. delivered the refolution of the court: 1. That the crown might grant to any city, to have juftices of their own within themselves, and exclude the county justices from intermeddling in the ordinary bufinefs of a justice of the peace. 2. That in fuch cafe, the act of the county juftices would be void, and not to be confidered only as a breach of the franchife. 3. That tho' the 12 C. 2. gives the jurifdiction in excife matters to the juftices of the peace refiding near the place where the forfeiture fhall be made, or offence committed; yet it never was the defign of the legislature, to make any alteration in the refpective jurifdictions of the juffices, but only to veft the excife jurifdiction of juftices of counties, cities, and places, with respect to their feveral local jurifdictions within fuch places. Str. 1154.

And in the cafe of Blankley v. Winfaniey and another, it was adjudged, that a charter granting jurifdiction to borough magiftrates over a diftrict not within the borough, does not exclude the county juftices from having a concurrent jurifdiction, without exprefs words in the charter. Durnf. & Eaf, 3 V. 279.

Concerning their bodies] Lambard and Dalton both think

it feems clear, that if a man is in fear that another will hurt his fervants, or cattle, or other goods, the furety of the peace shall not be granted; but Mr. Dalton is of opinion, that if one threatens to hurt a man's wife, or child, he may crave the peace by virtue of thefe words. Lami. 82. Dalt. c. 116.

Have ufed threats] It fhould feem from the many caufes which from time to time have been adjudged fufficient to bind to the good behaviour, that this expreffion is not to be understood of words only, but of threatening actions likewife, or any thing whereby a man has juft caufe to appre hend the burning of his houfes, or fome bodily hurt to be done to him.

To find fufficient fecurity] This is done by recognizance; by a reasonable intendment of law, more than by any cfpecial law in that cafe provided. Grom. 125.

For the peace or their good behaviour] L. Hale fpeaking of the ftatute of the 34 Ed. 3. c. 1. (on which Mr. Crompton fays the power of juftices to bind to the good behaviour is grounded) fays, that this power of binding, tho' expreffed generally, and without any time limited, yet is not intended to be perpetual, but in nature of bail, viz. to appear at fuch a day at their feffions, and in the mean time to be of good behaviour. 2 H. H. 136.

In our prifon] The king's prifon is the common gaol of the county: But by the ftatute of the 6 Geo. c. 19. the juftices may commit vagrants and other criminals, and perfons charged with fmall offences, either to the gaol, or to the house of correction, by their difcretion, for fuch offences, or for want of fureties..

We have alfo affigned you and every two or more of you] Here beginneth the fecond part of the commiffion, or the fecond affignment: All the bufinefs within which affignment belongeth to the feffions of the peace. Dalt. c. 5. And by this it appeareth, that two juftices may hold a feffions, but that one juftice cannot. Grom. 6, 7.

Of whom any one of you the aforefaid A. B. C. D. &c. we will fhall be one] This claufe which gives power to two or. more justices to hear and determine offences, requires that at least one of thofe juftices be of that felect number, which is commonly termed of the Quorum (from that word in the Latin commiffions, Quorum-unum effe volumus). For thofe of the quorum were wont to be chofen fpecially for their knowledge in the laws: and this was it which

led

led the makers of feveral ancient ftatutes exprefly to enact, that fome learned in the laws fhould be put into the commiffion of the peace; and (to fay the truth) all ftatutes that require the prefence of the quorum, do tacitly fignify fuch a learned man. For albeit that a difcreet perfon (not converfant in the ftudy of the laws) may fufficienly follow fundry particular directions concerning the fervice of the peace; yet when the proceedings must be by way of prefentment or indictment, upon the evidence of witnelles, and oaths of jurors, and by the order of hearing and determining, according to the ftreight rule and courfe of the law, it must be confeffed that learning in the laws is very neceffary. Lamb. 48, 49.

But learning being now greatly advanced and improved fince the first inftitution of this office, this diftinction is not of much use, but all or moft of the juftices are now equally affigned to be of the quorum; and by the ftatute of 26 G. 2. c. 27. no act, order, adjudication, warrant, indenture of apprenticeship, or other inftrument done or executed by two or more juftices, which doth not exprefs that one or more of them is of the quorum, (altho' the statutes refpectively require that one of the juftices fhall be of the quorum) fhall be impeached, set aside, or vacated, for that defect only.

And by the 7. G. 3. c. 21. In cities, boroughs, towns corporate, franchifes, and liberties, which have only one justice of the quorum; all acts, orders, adjudications, warrants, indentures of apprenticeship, or other inftruments, done or executed by two or more juftices qualified to act therein, fhall be valid, although neither of the said juftices fhall be of the quorum.

By the oath of good and lawful men] That is, by a jury fworn.

Of all and all manner of felonies] That is, either by the common law, or by ftatute. Crom. 8.

Felonies] Tho' the commiffion doth not mention murders and manslaughters, by exprefs name, but only felonies generally, yet by thefe general words, they have power to hear and determine murder and manflaughter, and also may take an indictment of fe defendendo, contrary to the opinions of Fitzherbert and Stamford. But tho' the juftices have this power, yet they do not ordinarily proceed to hear and determine thefe offences, and rarely other offences, without clergy, both because of the monition and clause in their committion, in cafe of difficulty to expect the prefence of

the

the juftices of affize; and alfo becaufe of the direction of the ftatute of the 1 & 2 P. & M. c. 13. which directs juftices of the peace, in cafe of manslaughter and other felonies, to take the examination of the prifoner, and the information of the fact, and put the fame in writing; and then to bail the prifoner, if there be caufe, and to certify the fame with the bail at the next gaol delivery: And therefore in cafes of great moment, they bind over the profecutors, and bail the party, if bailable, to the next gaol delivery; but in fmaller matters, as petit larceny, and some cases within clergy, they bind over to the feffions: But this is only in point of difcretion and convenience, not because they have not jurifdiction of the crime. 2 H. H. 46.

So alfo, an inquifition of felf-murder, if the body cannot be feen, and fo not inquired of by the coroner, may be taken before juftices of the peace; for it is a felony, and within the extent of their commiffion. 1 H. H. 414.

So alfo, if a perfon hath committed treafon, though the juftices have no cognizance of it as treafon, yet they have cognizance of it as a felony, and as a breach of the peace; and therefore a juftice of the peace, upon information on oath, may iffue his warrant to take the traitor, and may take his examination, and commit him to prison. 1 H. H. 580.

Poifonings] The word in the Latin commiffions was veneficia; and before the ftatute of the 9 G. 2. c. 5. which abolisheth witchcraft, was in the English tranflations rendered witchcrafts.

Inchantments, forceries, arts magick] Thefe alfo are abolished by the faid ftatute, which enacts, that no profecution fhail thereafter be commenced against any perfon, for witchcraft, forcery, inchantment, or conjuration.

And from the words continuing in the commission, when the crime itself is abolished, we may observe the averfenefs in the fuperior courts from altering ancient

forms.

Trefpales] This is founded on the ftatute of the 34 Ed. 3. c. 1. which enacts, that the juftices affigned fhail have power to reftrain the offenders, rioters, and all other barators, and to chaftife them according to their trefpafs or offence.

And upon this Mr. Hawkins obferves, that the word trespass is of a very general extent, and in a large fense not only comprehends all inferior offences, which are properly and directly againft the peace, as affaults and VOL. III. batteries,

B

batteries, and fuch like, but also all others which are fo only by construction, as all breaches of the law in general are faid to be. Yet it hath been of late fettled, that juftices of the peace have no jurifdiction over forgery or perjury at the common law; the principal reason of which refolution, he fays, as he apprehended, was, that inafmuch as the chief end of the inftitution of the office of thefe juftices was, for the prefervation of the peace against perfonal wrongs, and open violence; and the word trespass in its most proper and natural fenfe, is taken for fuch kind of injuries, it fhall be understood in that fenfe only in the faid ftatute and commiffion, or at the moft to extend to fuch other offences only as have a direct and immediate tendency to cause fuch breaches of the peace, as libels, and fuch like, which on this account have been adjudged indictable before juftices of the peace. 2 Haw. 40.

The word for trefpaffes in the old Latin commiffions, is tranfgreffiones.

Foreftallings, regratings, ingroffings] Over thefe offences the juftices in feffions had jurifdiction given to them, by the ftatute of the 5 & 6 Ed. 6. c. 14. which is now repealed; but the fame ftill continue offences punishable by indictment at the common law.

Extortions] The intent of this word is, to inquire of those who have done exceffive wrongs; for wrong done by any one is properly trefpafs, but exceffive wrong done by any one is called extortion; and this is more properly in officers, as fheriffs, mayors, bailiffs, efcheators, and other officers whatfoever (as well fpiritual as temporal) who by colour of their office have done great oppreffion and exceffive wrong to the king's fubjects, in taking excessive rewards or fees for doing their offices. Crom. 8.

The justices have no express power given them over this offence by any ftatute; upon which Mr. Hawkins obferves, that juftices of the peace have jurifdiction of all inferior crimes within their commiffion, whether fuch crimes be mentioned in any ftatute concerning them or not; for that all fuch crimes are either directly or at least by confequence and judgment of law, against the peace: and upon this ground principally, he fays, as he apprehended, it was lately refolved, that they may take an indictment of extortion. 2 Haw. 40.

And of all and fingular other crimes and offences of which the juftices of our peace may or ought lawfully to inquire]