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Warrants.
For the first, some hold that the Justice of peace
may grant his Warrant
to attach persons suspected of Felony: for that it seemeth by the
first Assignavimus in the Commission, and by the Statute of 5 Ed.
3. 14.
that any one Justice of peace may cause the Constables to arrest and
imprison Offenders suspected of Felony, &c. and how shall the Justice
of peace cause this to be done, but by his Warrant or Commandment? |
Chap. 169. |
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Again, if a Felony be done, there is no doubt but
that every private
Man without a Warrant may arrest whomsoever he suspecteth of it, being
a Man of evil Fame, &c. See hereof tit. Arrest.
But if the Offender
being pursued shall resist, quære who shall be aiding to a
private Man,
whose Goods are stollens and who suspected another to have stollen them,
either to search for his Goods, or to apprehend the party suspected, if
the
Justice of peace (by his Warrant) shall not command the Constable to
aid him therein? If it be objected, that the Constable may do all this
of his own authority, (upon request to him made by the robbed:)
be it true; yet we find by common experience that the Constables, without
the Justices Warrant therein, are for the most part both very fearful,
and also remiss herein, as neither knowing their own authority, nor the
danger. |
See ante
tit.
Exam.
& 2 H. 7.
15, 16 pro
& contra. |
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Besides, this is no new thing, for there is such
a precedent in the old
Book of Justices of Peace, impress. 1561. fol. 41. a.
yea, it is the common
practice at this day, and it seemeth to be very serviceable; and of
two evils the less is to be chosen, sc. that an Offender or suspected
Person,
should be imprisoned for a time, (though sometimes wrongfully)
rather than one which hath committed Felony should escape unpunished. |
Lamb. 193. |
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And yet by the Opinion of the Court 14 H. 8.
a Justice of peace cannot
make a Warrant to arrest a Felon, unless he be indicted of Felony,
(or that the Justice himself hath suspition of the Felon.) But if
the
Constable, or other Officer, shall serve such a Warrant, he shall justifie
the same, though the Justice, did err in the awarding thereof. See
24 E. 3. 9. |
14 H. 8. 16.
Br. Peace 6
Br. Faux.
Imp. 8 & c.
Co. 10. 76. |
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Next, for the Justices of peace to bind over, or
to grant a Warrant
against Offenders upon any penal Statute, to appear at the Sessions to
answer to their Offence or Fault, though such Statute be within the
power of the Justice of peace, yet such Warrant or binding over of
such Offenders may seem not warranted, unless it be specially so appointed
in the Statute, as it is by the Statutes of 5 El. c. 4. 23
El. 10.
39 El. 11. 33 H. 8. 1. See antea tit. Counterfeiters,
Dying, Labourers and
Sacraments. |
Lamb. 191
Crom. 197
The inconvenience
thereof.
See Lamb.
197. |
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But such Offenders ought first to be indicted, and
thereupon Process
from the Sessions is to be awarded against them until they come in,
&c. |
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' No one or more Justices of peace can make a Warrant
upon a bare
' surmise to break any Mans House to search for a Felon, or for stollen
' Goods; for they are constituted by Acts of Parliament, which Acts
' give them no such Authority. It would be inconvenient if they might
' so do. But if a Man be indicted for Felony, the Sheriff upon Process
' may demand him; and if he render not himself, may break the House,
Co. 4. Inst. p. 176. |
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And yet there be sundry Precedents of Attachments
made from one
Justice of peace against Labourers and Servants that shall refuse to
serve, or that shall depart out of their Service, contrary to the Statute, |
Crom. 238
Lamb. 191. |
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