PREFACE TO THE FIRST EDITION, BY DR. BURN. THE Author proposeth in this Book to render the laws relating to the subjects it treats of, a little more intelligible than hath hitherto been done. The method he makes use of is various. The first thing regarded is the order of time. Thus, in the poor laws:first, is set forth the appointment of overseers; next, the several branches of their duty, in finding settlements for the poor-in removing them to such settlements-in making rates for their relief-in relieving and otherwise ordering them-and, last of all, in accounting at the expiration of their office. Then again, in treating of settlements, it occurs, to consider distinctly, and as near to the said order as may be, ten different kinds of settlements,-by birth -by the parents' settlement-by apprenticeship-by service-by marriage— by inhabiting forty days after notice-by paying parish rates-by serving a parish office-by renting 10l. a year-and by a person's own estate. In like manner in treating of the rates; first, is set forth the course of laying the assessment-then, the allowance thereof by the justices-publishing the same in the church-appeal against the rates at the sessions-levying the same by distress-and, finally, commitment, where no distress can be had. Thus to exhibit another instance. In the article of the Woollen Manufacture, which makes up a considerable part of the justice of the peace his duty, and of the officers subordinate to him, there is such a number and variety of statutes, that authors are generally overwhelmed with them. To avoid which perplexity, the laws are here digested in order, according to the natural progress of that business; from the shearing of the sheep, to the exportation of the wool manufactured, under the several heads of winding of wool by the shearer-laws to prevent its exportation-working of clothfulling-measuring-dyeing-stretching-dressing-exporting. (a) Where there is no priority in point of time, the next method is that of Lord Coke, to frame a definition which takes in the whole subject, and then explain the several parts of such definition in their order. Thus, grand larceny is defined to be, a felonious and fraudulent taking and carrying away by any person of the mere personal goods of another, above the value of 12d. In the handling of which the several branches of the definition are explained in the order as they stand; viz. a felonious and fraudulent taking-and carrying away-by any person-of the mere personal goods-of another-above the value of 12d. Under which heads the general learning relating to that whole title is comprehended. (a) This arrangement has not in the present edition been closely followed, the laws as to Woollen Manufactures having been in many respects altered since the first edition. The like method is pursued in treating of the commission of the peace, the form of an indictment, the form of an order of removal, and other articles. In general it is provided that one thing shall clear the way for another, and the subsequent paragraphs explain the preceding. Under the influence of which conduct, the author hath attempted to bring together, under one general title, divers articles relating to the same subject, which in the common books are broken and detached under various separate titles; hoping thereby that what hath hitherto been thought introductory of confusion, may tend to render the subject more perspicuous, in exhibiting the whole under one comprehensive view. Thus the laws relating to the game, which are above forty in number, and are interspersed in the common books under about thirteen different titles, are here digested under one general title Game, to which the reader shall have recourse for the knowledge of whatsoever belongeth to that subject. For example, if any person would be satisfied what penalty the law hath proposed for tracing hares in the snow, by recurring to the general title concerning the game, he will find the game distinguished into three kinds, the four-footed game, the winged game, and the game of fish; the four-footed game are distributed into the several species of deer, hares, and conies; under which head concerning hares, he will readily find what is desired. In like manner, the winged game are subdivided into several branches, concerning hawks and hawking-swans-partridges and pheasants-pigeons-wild ducks, wild geese, and other water-fowl-grouse or moor game-herons—and other fowl; each of which have their peculiar laws. In these large comprehensive titles, care is likewise taken to be as particular as may be without injuring the connection in the statutes, by inserting the whole law by itself, relating to each separate article. The benefit of which will appear by the following instance: if a person would know what number of horses or beasts in a cart or waggon are allowed by the statutes for the preservation of the road; let him take what treatise at present he pleases concerning the highways, he must read over the whole, before he shall be sure that he hath found all which the law hath enacted concerning the same; and such is often the inaccuracy and confusion, that when he hath perused the whole, perhaps he may be still to seek. For as to this instance before us, there have been regulations made concerning the same, by ten different acts of parliament at very different times. Before he can have any competent knowledge thereof, he must lay all these ten acts together; and when he shall have done this, he will find amongst them so many repeals, and revivals, and explanations, and amendments, that it will even then be no easy matter to conclude with certainty how the law doth stand as to that article. To spare the reader all which trouble, the author hath in this, and all other the like instances, laid the whole law together relating thereunto, or at least all that hath occurred to him, or which he hath thought it material to insert. So that the reader may receive satisfaction in a very small compass, as to what he shall be inquiring about; or at least he may be satisfied in this, that if he doth not find it there, he need not seek for it elsewhere in the book. And by this method of bringing together into one general title, all those separate distinct titles, which have a mutual relation to and dependance upon each other, the author hath avoided one great inconvenience, of referring the reader from one title to another, and from that other back again to the first, and (which is not unusual in books of the like kind) perhaps losing the thing to be treated of betwixt them. Upon which account also, where one law occurreth under two different titles, it is usual with him to insert the same under both those titles, that so the reader's attention may not be interrupted by sending him to search other titles, and from those perhaps others again, which have no principal relation to the matter he hath in hand. Also, upon another account, he hath sometimes made use of more words than otherwise he would have done, namely, to avoid the frequent repetition of the term &c. which is a vague expression, and apt to create an uneasiness in the reader's mind, for that he cannot be satisfied from thence how much, or how little, is intended to be understood. He hath also been somewhat large in the matter of precedents under divers titles; and hath endeavoured to bring them much nearer to the statutes upon which they ought to be formed, than usually hath been done. For all which enlargements he hath the more space allowed to him, for that he hath not thought it necessary (as others have done) to take up near one-fourth part of the book by inserting Blackerby's Justice at the end of it, by way of Index; hoping that the method he hath pursued will render every thing of that kind impertinent and useless. THE MATERIALS which the author hath made use of are chiefly of four kinds: the Statutes at large-the several treatises concerning the Pleas of the Crown-the Reports of Cases adjudged in the Court of King's Bench— and the books concerning the Office of a Justice of the Peace. As to the Statutes at large, or acts of parliament, the author hath not thought himself at liberty, as Mr. Dalton and others have done, to deliver the import thereof in his own words; but hath constantly abridged the act in the words of the act itself, leaving out nothing which may seem any way material. And to each distinct clause, he hath annexed the interpretation thereof, where the same hath been determined in the Court of King's Bench, or expounded by other good authority. The treatises concerning the Pleas of the Crown, are those of Stamford, Coke, Hule, and Hawkins. Of the first of these the author hath made little use, further than as he is adopted by the other three. As to which three great authorities, the law hath been declared by Lord Coke, and not controverted by any other, nor altered since his time by any act of parliament, or judicial determination, the author hath given to him the preference. And where any of these differeth from the other, he hath noted the difference. In citing of Mr. Hawkins, he hath not thought it allowable, as is usual with others, to omit the several degrees of caution and assent, with which he delivereth his opinion; as it seemeth, or it hath been said by some, or it seemeth to be the better opinion, or it seemeth to be agreed, and the like; which are by no means arbitrary words without much meaning, but are inserted by him with the utmost deliberation and judgment. As to the books of Reports, where the cases therein have been considered by Mr. Hawkins, and the other learned persons before mentioned, the author hath judged it very proper to leave the matter there as settled by them. As to the rest, he hath by no means thought himself of ability to proceed in Mr. Hawkins's manner by laying together all the reports on the same subject, and thereupon extracting an opinion out of the whole; but hath inserted the same at large, or what he hath thought most material thereof, and left the determination thereupon to the reader's better judgment. And here it may be requisite, that the reader be admonished, not to expect that the book shall be more perfect than the materials of which it is composed. All the books of reports are not of equal authority. Many of them are only notes that had been taken for gentlemen's own private use. For these, or for any other, the author himself vouched not; and as he doth not add to their credit, so he doth not detract from it; but leaveth every author (as he needs must) to answer for himself. For he hath made it an invariable rule, upon all occasions, to cite his authorities, what such soever they be; and in all material instances, in the very words of the original authors; that so what may be of good authority in itself, shall not be rendered less so by his handling of it. And where no authority is alleged, he desires the reader will look upon it as such, namely, as having no authority; the same being nothing but the author's own private observations, which are submitted to every reader's judgment, to approve or reject as he shall see cause. The books of authority concerning the Office of a Justice of the Peace, are those of Fitzherbert, Crompton, Lambard, and Dalton; the last of which was published in the reign of King James the First; since which time no book under that title hath been allowed as sufficiently authentic. And even the additions which have been made to Dalton since his death, seem to have no better claim to an uncontroulable authority, than other collections which have not obtained it. And Dalton himself is much injured in the modern editions in like manner, as was observed before of Mr. Hawkins, by delivering that as absolute, which Mr. Dalton published under the several degrees of assent or doubtfulness before mentioned; and which the author, in justice to Mr. Dalton, hath restored. Where Dalton hath adopted Lambard, Crompton, and Fitzherbert, (which he doth most frequently in their words,) the author hath thought it sufficient to cite Dalton's single authority. And generally, in all other cases, where authors are agreed, he hath judged it unnecessary to allege more than one or two good vouchers. Concerning the other books of this kind, which have been published since Dalton's time, it is unnecessary to enlarge, since of the most of them the author hath made no use, and of the rest very sparingly; and he will not seek to recommend his own book, by finding fault with others before him. ORTON, WESTMORLAND, Sept. 29, 1754. THE JUSTICE OF THE PEACE AND PARISH OFFICER. Abatement of Nuisances. See "Nuisance," Vol. V. Abatement, Pleas in. (a) A PLEA in abatement consists of matter of defence, which merely defeats What. In criminal proceedings, such a plea is pleadable only to indictments, informations in the Crown Office, and appeals of felony. It is founded either on some defect apparent on the proceeding itself, or on sone defect in matters of fact not so apparent, such as a misnomer of the defendant, or a mistatement of his addition. Our present considerations will be confined only to pleas in abatement to indictments and informations in the Crown Office. Pleas in abatement of misnomer, or of want of addition or wrong addition Inutility of. of the party pleading, are now rendered of no advantage to such party in consequence of the 7 Geo. IV. c. 64, s. 19, allowing an amendment, as will be seen, post, p. 3. We will now consider I. What may be Pleaded in Abatement, 1. II. Time and Manner of Pleading it, and Affidavit of Truth, 2. III. Amendment, Replication, Demurrer, and Issue, &c. 3. IV. Evidence, 4. V. Judgment, &c. 5. VI. Forms, 5. I. What may be pleaded in Abatement. The defendant may plead in abatement any defect apparent on the face of What may be the indictment. (2 Hale, 236, 238.) As if it does not state the defendant's pleaded. (a) As to these pleas in general, see 2 Hale, 236 to 239; 2 Hawk. c. 34; VOL. I. Bac. Ab. Abatement; Com. Dig. Abate For apparent defects. |