An abridgment of the lawes of England, touching treasons, rebellious murthers, conspiracies, burning of houses, poysonings, and other capital offences. WIth such readings thereon as show the several wayes whereby offenders in such cases may become guilty. / by John Bridall, Esq.

Author: Brydall, John, b. 1635?1679

AN ABRIDGMENT OF THE LAWES OF ENGLAND, Touching Treasons, Rebellious Murthers, Conspiracies, Burning of Houses, Poysonings, and other Capital Offences.

With such Readings thereon as shew the several wayes whereby Offenders in such cases may become Guilty.

By John Bridall, Esq;

LONDON, Printed for John Bellinger, in Cliffords-Inne-Lane, and Tho. Dring at the Harrow at Chacery-Lane-End in Fleet-street. 1679.

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The general Titles contained in the TABLE.

ACcessories.
Affrayes.
Appeals.
Approver.
Assemblies.
Arraignment.
Attainder.
Battery.
Bribery.
Burning of Houses.
Causes Criminal.
Challenges of Jurors.
Chance-Medley.
Clergy.
Conspiracies. Vide Treason.
Conviction.
Councel.
Duels.
Errors.
Execution.
Extortion.
Felo de se.
Felony.
Gifts.
Homicide.
Indictment.
Judgment Criminal.
Jurors.
King.
Larceny.
Ligeance.
Lex Talionis.
Libels.
Lawes.
Life.
[Page] Mispristons.
Murther.
Malice.
Mayhem,
Offences.
Petit Treason.
Poyson.
Piracy.
Punishment.
Principals.
Pain, Fort, & Dure.
Pardon.
Rape.
Riots.
Robbery.
Roues.
Rumours.
Rebellion. Vide Treason.
Se Defendendo.
Striking in the Kings Court.
Theft.
Treason.
Verdict.

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THE Campagne of the French King in the Year 1677. In which is described Exactly the Three Sieges and taking in of Valenciennes by Assault, and of the Town and Citadel of Cambray, and of St. Omers. With an Account of the Battel of Cassel. Printed for T. Dring in Fleet-street.

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JƲs CRIMINIS: OR THE Law of ENGLAND, TOUCHING Matters Criminal.

J ƲS CRIMINIS, or the Obligation of Crime, is whereby a Subject for a Delict, or Offence against the Imperial Crown of England, is obnoxious, and liable to punishment. And a delict, or offence is, whereby the King, and Common-wealth (which make but one) are injured.

Of Offences, commonly termed Pleas of the Crown, some are perpetrated mediatly against the Crown (though not principally, yet consequentially;) And some immediatly are said to be committed against the King Himself, who is Head of the Common-wealth, and in whom all general Injuries reside, and to whom the Reformation of all Publique wrongs doth inseperably appertain.

The former kind may be divided into 3 Classes, (viz.)

1. Into those that have Relation to life it self, such as Homicide.
[Page 2]2, Into those that respect the Body and Members, as Battery, Mayhem, and Rape.
3. Into those that belong to Dominion, or property, such as Theft, and burning of Houses.

The latter kind do comprehend High-Treason, Misprision of Treason, Robbing the King's Treasure, Bribery, Extortion, striking in any of the King's Courts, where He resides Personally, or by Representation, and all manner of Breaches of the Publique Peace; such as Conjurations, Routs, Ryots, Affrayes, Duels, Lybels, and false Rumours. Of these several kinds in their Order.

1. Of those Crimes that are committed mediatly, contra Coronam & dignitatem Regis, and do relate to Life it self, as Homicides.

In Homicide, are worthy of Observation, the Etymologie of it, and its general Division.

Est homicidium, Lib. 3. c. 4. nu. 3. de corona. sayes Bracton, hominis Occisio, ab homine facta, si enim a Bove, Cane, vel alia re non dicetur proprie Homicidium, Est dictum Homicidium, ab komine, & Caedo. quasi hominis Caedim: And with Bracton doth Concurre in this matter, another antient Author viz. Mr. Horne, whose very words are these: Homicide est Occision de Home per Home fait, Mirror. c. 1. Sect. 9. car si soit per beste, ou mischeance nest Homicide. Thus much of the Definition, and Origination of the word Homicide: As for the right division of Homicide, take this as followeth: Of Homicides some be done.

1. Proposito, voluntarily, and of malice forethought, as petty-Treason, and Murther,

2. Impetu, voluntarily, and not of malice [Page 3]fore-thought: Of these some be Felony, as Man-slaughter, and some be no Felony; Of which, some be in respect of giving back inevitably in defence of himself, upon an assault of Revenge; Co. 3. Jnsti. f. 54. and some without any giving back, as upon the Assault of a Thief, or Robber, upon a man in house, or abroad. Some upon the Assault of one, that is under Custody, as the Sherif, or Gaoler assaulted by his prisoner; some in respect that he is an Officer, or Minister of Justice, without any assault in Execution of his Office or Lawful warrant.

3. Casu, such as be no Felony, neither forethought, nor voluntary, as Man-slaughters by misadventure. Having shewed the Reader Sr. Edward Cook's division of Homicide; I begin with the first Branch, viz. Homicide voluntary, and of malice fore-thought, and this conteines petit Treason, and Murder.

Treason (being derived from Trabir) which is treacherously to betray, Trahue betrayed, 1 Petit Treason. and Trahison per Contractionem, Treason is the betraying it self, it is divided into two parts, into High Treason, and petit Treason: It is called High, or Grand Treason in respect of the Royal Majesty against whom it is perpetrated, Co. 3. Inst. f. 4. & 20. and Commparatively it is stiled petty Treason, in respect it is committed against Subjects, and inferior persons; so that this petit Treason is when wilful Murder (in the Estate Oeconomical,) is committed upon any Subject, by one that is in subjection, & oweth Faith, Duty, and Obedience to the party Murdered; as in these three Cases following, which are only [Page]mentioned by the Statute of 25. E. 3. C. 2. de prodicionibus; and likewise by Britton Cap. 8. & 22.

1. When a servant slayeth his Master: This was petit Treason by the Common Law, for it appeareth by the Book 12. 12 Ass. pl. 30. Ass. that a woman servant killed her Mrs, wherefore she had Judgment given to be burned, which is the Judgment at this day of a woman for petit Treason. And herewith agreeth 21 E. 3.17.

Upon the Act aforesaid, if the servant kill the wife of his Master, 19 H. 6.47. Flowdens Com. 86. b. Crompt. 20. it is petit Treason, for he is servant both to the Husband and wife.

A servant upon malice pretended, shooteth at a stranger and misseth him, and killeth his Master, being by; this is petit Treason in the servant (though he intended no hurt to his said Master yet) because he intended Murther thereby.

A Servant commands one to beat his Master, Crompt. 20. and he killeth him, this is petit Treason in the servant if he be present.

If a servant has an intent to kill his Master, Co. lib. 1. Shellies case 99b. 10. H. 6.47. Plowdens. Com. 260. Co. 3. Inst. f. 20. and before the Execution of his purpose, departeth out of his Masters service, and being out of his service, put his Intent in Execution, and kills him, who was his Master; this is petit Treason: for the Execution of the Act, hath a Retrospection to the Original Cause, which was malice conceived when he was a servant.

A maid-servant conspires to kill her Mistress, Moores Reports. nu. 227. f, 91. it is petit Treason in her, and Murder in the Actor.

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2. When a Wife slayeth her Husband.

The wife maliciously killeth her Husband, this is petit Treason in her: But if the Husband maliciously killeth his Wife, this is only Murther: the reason of this diversity is, for that the one is in subjection, and oweth Obedience, and not the other.

The wife poysoneth an Apple, to the intent to poyson a stranger therewith, Cromp. 20. and laid it to that purpose in a secret place, and the Husband by chance eateth of it, and dyeth thereof, within a Year and a day; this is petit Treason in the Wife, for that she intended Murther thereby; so if the Wife poysoneth an Apple, or other thing, and delivereth it to B. (knowing of the poyson) to give to C. and B. giveth it to the Husband (without the assent of the Wife) who eateth thereof in the Wives absence, and he dyeth thereof, this is petit Treason in the Wife: But if the Wife poysoneth a thing, Plowd. Com. f, 474. to the intent to poyson her Husband therewith, the Husband eateth of it, and becometh very sick, but recovereth: after a stranger eateth thereof, and dyeth thereof, this is onely murther in the Wife.

If the Wife and Servant conspire the Husbands death, he is killed by the Servant, Co: 3: Just f: 20. in the absence of the Wife, this is petit Treason in them both, and the Wife shall be burnt. But if it had been a stranger, it had been murder in him onely, and petit Treason in the Wife.

Baron, and Feme out of affection were resolved to go out of the World together; The Wife buyes poyson, both take it, the Husband [Page 6]dyed; It is a quaere in the Book, whether this were murther in the Wife.

A Woman compasseth with her Avowterer, The Womans Lawyer, lib. 3. sect. 44. the death of her Husband, they assailed him, Riding on the Highway, beating, wounding, leaving him for dead, and then they fled: The Husband got up, levied Hue and cry; came before the Justices; they sent after the Offenders, which were gotten, arraigned, and the matter found by the Verdict, the Adulterer was hanged, the Woman burned to death, the Husband living: This Judgement was given when voluntas reputabatur pro facto, Sic Metellus Celer Sergium damnavit, & non factum, sed animus in questionem deductus est: Plusque voluisse peccare nocuit, quam non peccasse profuit: But at this day in case of Felony, Non debet obesse Conatus, ubi injuria nullum habet effectum.

3. When a Secular, or Religious man stayeth his Prelate, Ordinary, or Superiour, to whom he oweth Faith and Obedience.

Note, that unto the Bishop of every Diocess, the Clerks within their Diocess, do owe Faith and Obedience, which is called Canonical Obedience.

Note likewise, that whatsoever Act will prove murder between strangers, the same will make petit Treason from the Servant to his Master, from the Wife to the Husband, from the Clerk to his Prelate, or Ordinary, Mutatis Mutandis: But whether from a Child to the Father, or Mother, &c. may be a Quaere, for [Page]some hold that it is petit Treason, and others that it is not.

If the Child maliciously killeth the Father, or Mother, this sayes one is petit Treason (although the Father or Mother at the same time gave neither meat, drink, or Apparel, nor wages to such Child) in respect of the duty of nature violated, vide 21. E. 3.17 Book Treason 6.

A Bastard killeth his Mother, Crompt' 21. this seemeth petit Treason; for the Mother is certainly known.

The Son, or Daughter in Law, killeth the Father, or Mother in Law, with whom they dwell, and do service, and have meat, Dalisons Rep. 1. Mar. 1. and drink, it is petit Treason; although such Child take no wages, but the Indictment shall be by the name of Servant.

But my L. Coke says thus; If the Child commit Parricide in killing his Father and Mother (of which Solon interrogatus cur nullus parricidio supplicium indixisset? Se id neminem facturum putasse respondit. The Law-makers never imagined any child would do) this case is out of the Stat. of 25. E. 3, c. 2. unless the child served the Father, or Mother for wages, or meat, drink, or apparel, for that it is none of those three kinds specified in the Law aforesaid: And yet (sayes he) the offence is far more hainous, and impious in a child, than in a servant, for, peccata contra naturam sunt gravissima; but the Judges are restrained by the said Act, to interpret it, a simili, or a Minore [...] Majus. The hainousness of this Parricide appears [Page]by that punishment, which is ordained in the civil Law, for those that are guilty of the Crime: Paena parricidij more Majorum haec instituta est, ut parricida virgis sanguineis verberatus, deinde culleo insuatur cum Cane, gallo gallinaceo, & vipera, & simia, deinde in more profundum Culleus jactetur, D. 48.9, 9. Thus much of petit Treason.

Murder cometh of the Saxon word Mordrue, [...], Murder, Co, Litt, 287, b, Stamfords Plees of Crown, Lib, 1, or Mordren, and Mordridus is the Murderer even untill this day amongst them in Saxony, from whence we have most of our words: or, it may be derived of Mort, and Dire, as Mors Dira, a Cruel or Horrible death.

This Murther in our Law is Two-fold, either of himself, or of another.

1. Of Murdering a mans self, called Felo de se.

Felo de se (sayes Coke) is a man, or woman, which being Compos mentis, of sound memory, and of the Age of Discretion, killeth himself, which being lawfully found by the Oath of Twelve men; all the Goods and Chattels of the party so offending are forfeited: And the Reason, why Felo de se doth forfeit all his Goods and Chattels is, because it is an offence against the King, who by that perpetration is deprived of a Subject: And indeed no man by the Law of nature hath such power over his own life, as to take it away, or to oblige it by any Contract, or Bargain, vide Grot. Lib. 2. c. 21. nu. 11. Lib. 3. c. 11. nu. 18. Having shewed [Page 9]the Description of Felo de se, and the Reason of forfeiting his Chattels, I propose these Queries with their Resolutions.

Whether a person that is non compos mentis, Quaere 1, giving himself a mortal wound, and after recovering his memory, before death ensues, be Felo de se?

If one during the time that he is non compos mentis giveth himself a mortal wound, Resp, whereof he, when he hath recovered his memory dyeth, he is not Felo de se; And the Reason is because the stroke, which was the cause of his death, was given, when he was not Compos mentis. Et actus non facit Reum, nisi meus sit rea: And this is agreeable to the civil Law: Maleficia voluntas, & propositum distinguit: D, 47, 253, voluntas & propositum maleficium delinquentis distinguit: Delictam cessat, ubi delinquendi animus non est.

Whether a man can be said to be Felo de se upon an involuntary Act? Qu, 2,

A man may be so; As if A. give B. Resp, such a stroke, as he felleth him to the ground, B. draweth his knife, and holds it up for his own defence: A. in hast, meaning to fall upon B. 44 E, 3, 44, 3 E, 3, Cor 286, Co, 3, Inst, f. 54, to kill him, falleth upon the knife of B. whereby he is wounded to death, he is Felo de se: For B. did nothing but that which was lawful in his own defence; Et vim vi defendere sayes the civil Law, omnes leges, omnicque jura permittunt, D. 9.2, 45, 4.

Whether the goods of Felo de se be forfeited before it be found of Record, that he is Felo de se? Qu, 3,

No Goods be forfeited, Resp, untill it be lawfully found by the Oath of Twelve men, that he is [Page 10] Felo de se: Plowd. fol, 360, b. And this doth belong to the Coroner, super visum Corporis, to enquire thereof: and if it be found before the Coroner, super visum Corporis, that he was Felo de se, the Executors or Administrators of the dead shall have no Traverse thereunto. Co, Lit, f, 114, ab, l, 5, f, 109. And this is the reason that no man can prescribe to have Felons goods, because they are not forfeited untill it be found of Record, that he is Felo de se.

How a Felo de se shall be enquired of, Qu, 4 where the body cannot be found?

If a man be Felo de se, Resp. and is cast into the Sea, or otherwise so secretly hidden, as the Coroner cannot have the view of the body, Hill, 37 Eliz; in the Kings-Bench by the whole Court, in the Case of one Laughton of Cheshire. and by consequence cannot enquire thereof: In this case it may be inquired thereof by the Justices of Peace of that County, for they have power by their Commission to inquire of all Felonies. But if it be found before them, the Executors, or Administrators of the dead may have a Traverse thereunto, but not to the Indictment taken before the Coroner, super visum corporis, as before is said.

Whether a joynt Tenant of Chattels personals, Qu, 5, becoming Felo de se, doth forfeit the whole?

There is a diversity between Chattels personals in Action, Resp, 8 E, 4, 4, 7 E, 4, 7, a, Plowd, Com, 259, b, and in possession: for if a debt be owing to two, unless it be in case of Joynt-Merchants, and the one is Felo de se, he doth forfeit the whole: but otherwise it is of goods in possession, for there he forfeiteth but his part.

Whether a debt upon a bare Contract be forfeitable? Qu, 6,

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If a man that is Felo de se has a debt upon a bare contract, and not upon specialty, Resp, Dyer 262, a, this shall not be forfeited unto the King. Thus much of Felo de se.

2 Of Murder in respect of another.

Bracton defineth this kind of Murder to be Homicidium, quod nullo praesente, Lib, 3, c, 15, nu, 1, de Corona Britton, c, 6, nullo sciente nullo audiente, nullo vidente, clam perpetratur: And of the same mind is Britton, whose words are Murdre est occision de home disconu feloniousment fait dount home ne poit scaver per qui, ne per quex: As also Fleta: Est murdrum occulta hominum occisio, Lib, 1, c, 30, a manibus hominum nequiter perpetrata, que nullo sciente vel vidente, facta est, preter solum Interfectorem, & suos coadjutores & fautores: yet Fleta saith also, that it was not murder, except it were proved, that the party slain were English, and no stranger: But as Stamford saith, the Law in this point hath received an alteration by the Stat. of 14. E. 3. 14 E, 3, c, 4 And therefore this murder is now otherwise to be defined, or described: It is when a Reasonable Creature (be it man, woman, child, Subject born, or Alien, persons outlawed, or otherwise attainted of Treason, Felony, or premunire, Christian, Jew, Heathen, Turk, or other Infidel, being under the Kings peace) is slain, or killed by a man of sound memory, and of the age of discretion, with malice forethought either expressed by the party, or implied by Law.

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Touching the former, viz. Malice expressed, take these Queries with their Solutions:

Whether this same malice, Qu, 1, though it be intended against one, it shall be extended towards another?

This Malice is so odious in Law, as though it be intended against one, it shall be extended towards another; Sol, And therefore Bracton's words are; siquis unum percusserit cum alium percutere vellet, Co, Lib, 9, Gores Case 81, in felonia tenetur: As if A. put poyson into a pot, to the intent to poyson B. and set the same in a place, where he supposeth B. will come and drink thereof, and by accident one C. unto whom A. hath no malice, cometh, and of his own will taketh the pot, and drinketh thereof, of which poyson he dyeth; This is murder in A. for the Law doth couple the event with the intention, and the end with the cause: But herein is a diversity between the principal, and the Accessory; For if A. command B. to kill I. S. and B. killeth I. D. mistaking him for I. S. this is murder in B. because he did the Act, which sprang out of the Root of malice, Plowd, Com, Saunders Case, but A. is not Accessory, because his own commandment was not pursued: But on the other side, if A. command B. to kill I. S. by poyson, and he doth it by violence, as by weapon, sharpe or blunt, Gun, Cross-bow, Crushing, &c. in this case notwithstanding the fact be not executed according to the mean prescribed; yet A. is Accessory nevertheless; for the commandment was to kill, which ensued, though the mean was not followed.

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Whether killing a man by poyson be more detestable, than by any other means? Qu. 2,

To kill a man by poyson, sayes Coke, Sol, is the most detestable of all, because it is most horrible and fearful to the nature of man, and of all others can be least prevented, either by Manhood, or providence: This offence was so odious, 22 H, 8, c, 9, that by Act of Parliament it was made High Treason, and it inflicted a more grievous and lingring death, than the common Law prescribed, viz. That the Offendor shall be boyled to death in hot water: upon which Statute Margaret Davy a young woman was attainted of High Treason for povsoning her Mistress, and some others, Anno 33 H, 8, was boyled to death in Smithfield the Seventeenth of March in the same year: But this Act was afterwards repealed by 1. E. 6. c. 12. and 1. Mar. c. 1. Having given you the words of Sir Edward Coke, touching poysoning, I shall mention something in the civil Law concerning it:

Plus est hominem extinguere veneno, Cod, 9, 1, 8 quam occidere gladio. For Clam interficere, sayes Gothofredus on the Text, gravius est, quam palam.

Plus est hominem veneno extinguere, Doctores ad Just, 4, 18 5, Just, 4, 28, 5, D, 48, 81, & 3, quam gladio occidere.

Lege Cornelia, & veneficij Capite damnantur qui artibus odiosis, tam venenis, quam susurris magicis homines occiderint; vel mala medicamenta publice vendiderint.

Whether an Infant within the age of Nine years, can be guilty of Murder? Qu, 3,

Ʋn Infant deins age ix ans occist un Enfant de ix ans & Confesse le Felony, Sul, [...] & auxi fuit trove [Page 14]que quant il luy avoit tue, il luy occult & auxi le Sanke que fuit sur luy effundes, si il ceo excuse; And the Judges held, that he ought to be hanged. 3 H, 7, 1, b. But Fairefax said, that the words of Fortescue were, viz. That the Reason why a person is executed for Murder, is for example, that others may fear to offend; But such punishment can be no example to such an Infant, or to a person that hath not discretion.

Le Recorder de Londres monstre coment un enfant entra le age de x. ans, & xii. ans fuit endite de mort, & il fuit appose de ceo, & il dit, que il gard barbettes ove cestuy que est mort & ils happen a variance per que il luy ferist en le gule, puis en le Teste & issint en divers Lieux del corps tanque qu'il fuit mort, 3 H, 7, 12, b & donques il trahist le corps en le corne, & les Justices pur sonrendr', & pur ceo que il narroit le matter playnem ent respite le Judgment, & plusours Justic' disont, que il fuit deigne mort &c. And the Reason is, quia malitia supplet etatem: with this our Rule do concur the Roman Laws.

Impunitas delicti propter etatem non datur, si modo in ea quis sit, in quam crimen, quod intenditur, Cod 9, 47, 7, do Poenis, Gothofredus, Qu, 4, cadere potest; i. e. si modo sit proximus pubertati, & ea sentiat in quibus deliquit.

Malitia minor is etatem justam esse representat, ae supplet, vel sic: Malitiae non succurritur.

Whether Malice prepensed must be continuing, till the mort al wound given?

Albeit there had been malice between two, Sol, and after they are pacified, and made friends, and after this upon a new occasion fall out, Co, 3, Inst. f, 51, and the one killeth the other, this is Homicide, but [Page 15]no murder, because the former malice continued not.

So if A. command B. to kill C. and before the Act be done, A. repenteth, and countermandeth his Commandment, and charge B. Ibid, not to do it; if B. after killeth him, A. is not accessory to it; for the malicious mind of the Accessory ought to continue to do ill, untill the Act done.

Whether Murder can be committed of a child in utero matris? Qu, 5,

If a Woman be quick with Child, Sol, and by a Potion, or otherwise killeth it in her womb; or if a man beat her, 22 E. 3 Cor 263. 8 E. 2, Cor. 418, whereby the Child dyeth in her Body, and she is delivered of a dead Child, this is a great misprision, and no murder: But if the Child be born alive, and dyeth of the Potion, Battery, or other cause, this is murder; for in Law it is accounted a reasonable Creature, in rerum natura, when it is born alive.

The Law holden in Bracton's time was, si aliquis, qui mulierem pregnantem percusserit, vel ei venenum dederit, per quod fecerit abortivus si puerperium jam formatum fuerit; & maxime si fuerit animatum, facit homicidium. And let us now see what the civil Law saith, de partu abacto; si mulierem visceribus suis vim intulisse, D, 48, 8, 8, quo partum abigeret, constiterit, eam in exilium preses Provinciae exiget.

Cicero in oratione pro Cluentio Avito scripsit, D, 48, 19, 39, de partu abact [...], Milesiam quandam mulierem, cum esset in Asia, quod ab heredibus secundis accepta pecunia partum sibi medicamentis ipsa abegisset, rei Capitalis esse damnatam.

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Whether it be murder in a Mother to conceal the death of her Bastard Child? Qu, 6,

It is Enacted, Sol, That if any Woman be delivered of any Issue, Male, or Female, which being born alive, 21 Jac, c, 27, should by the Lawes be a Bastard, and she endeavour privately, either by drowning, or secret burying thereof, as that it may not come to light, whether it were born alive, or not, but be concealed; In every such case the said Mother so offending, shall suffer death as in case of murder, except such Mother can make proof by one witness at least, that the Child, whose death was by her so intended to be concealed, was born dead.

Whether he that stabbeth another to death shall suffer, Qu, 7, as in case of wilful murder?

It is Enacted, Sol, That every person, which shall stab, 1 Jac, c, 8, or thrust any person, that hath not then any Weapon drawn, or hath not then first stricken the party, which shall be so stabbed, or thrust; so as the person stabbed, or thrust; shall thereof dye, within the space of six months, although it cannot be proved, that the same was done of malice forethought; yet the party so offending, and being thereof convicted by the Verdict of Twelve men, Confession or otherwise, according to the Laws of this Realm, shall be excluded from the benefit of his Clergie, and suffer death, as in case of wilful murder. Qu, 8,

Whether a Murder committed out of the Realm, can be tryed by the Common Law?

If two of the Kings Subjects go over into a Forreign Countrey, Sol, 13 H, 4, 5, & 6, and fight there, and the [Page 33]one kill the other, Stamf: pl. cor. f. 65. Co. Lit. 70. a, b this Murder being done out of the Realm, cannot be for want of Tryal heard, and determined by the common Law of England; but it may be heard and determined before the Constable and Marshal, whose Sentence is upon the testimony of witnesses, and combat; and accordingly where a Subject of the King was slain in Scotland by others of the Kings Subjects, the Wife of the party flain had her appeal therefore before the Constable and Marshal; and so it was resolved in the 35th, year of Queen Elizabeth, in the case of Sir Francis Drake, who strook off the head of Dowtie, in partibus transmarinis, that his Brother and Heir might have an appeal.

So if a man be mortally wounded in Franee, Co. Lit. 70. b. Co. 3 Inst. 48, and dyeth thereof in England, it is said that an Appeal doth lye upon the statutes of 12 R. 2. c. 2. and 1 H. 4. c. 14. for it is not punishable by the common Law, because the stroak was given there where no Visne can come, and therefore the same shall be heard and determined before the Constable and Marshal: Thus much of Murder proceeding from Malice prepensed and expressed; as for Malice implyed, it hapneth in three cases.

1 In respect of the manner of the deed; Co: lib. 9. Mac. Rellyes. as if one killeth another without any provocation of the part of him that is slain, the Law implyeth malice: if one make a wry, or distorted mouth, or the like countenance upon another, and the other immediatly pursues, and kills him, it is murder, for it shall be presumed to be malice precedent; and that such [Page 34]a slight provocation is not a sufficient ground or pretence for a Quarrel. Cro. 1. part Wats v. Braine f. 779.

One Halloway was Indicted and Arraigned at Newgate for Murthering one Payne, the Indictment was, that he Ex malitia proecogitata tyed the said Payne at the Horses tayle, Cro. 3 part Hallow. case 131. and strook him two stroaks with a cudgel, being tyed to the said Horse, whereupon the Horse ran away with him, and drew him upon the ground three Furlongs, and thereby brake his shoulder, whereof he instantly dyed, and murdered him: Upon this Indictment he being arraigned, pleaded nor guilty, and thereupon a special Verdict found, that the Earl of Denbigh was possessed of a Park called Austerly Park, and that the said Halloway was Wood-ward of his Woods in the said Park, and that the said Payne with others unknown, entred the said Park to cut Wood there, and that the said Payne climbed up a Tree, and with an hatcket cut down some boughs thereof, and that the said Halloway came riding into the Park, and seeing the said Payne on the Tree, commanded him to descend, and he descending from thence, the said Halloway stroke him two blows upon the back with his cudgel, and the said Payne having a Rope tyed about his middle, and one end of the Rope hanging down, the said Halloway tyed the end of that Rope to the Horses tayle, and struck the said Payne two blows upon his back, whereupon the said Payne being tyed to the Horses tayle, and the Horse running away with him, drew him upon the ground three Furlongs, and by [Page]this meanes brake his shoulder, whereof he instantly dyed, and the said Halloway cast him over the pale into certain bushes, and whether upon all this matter found, the said Halloway be guilty of the Murder prout, they pray the discretion of the Court, and if the court shall adjudg him guilty of Murder, they find him guilty of Murder; if otherwise, they find him guilty of Man-slaughter; and this special Verdict by Certiorari was removed into the Kings Bench, and depended three Termes; and the opinion of all the Judges and Barons was demanded, and they all (besides Hutton, who doubted thereof) held clearly that it was Murder: for when the Boy who was cutting on the Tree came down from thence upon his command, and made no resistance, and he then struck him two blowes, and tyed him to the Horses tayle, and struck him again, whereupon the Horse ran away, and he by that meanes slain, the Law implies malice, and it shall be said in Law to be malice prepensed, he doing it to one who made no resistance; he was adjudged to be hanged, and was hanged accordingly.

If a man give poyson to another person, Co. 3. Inst. 52. of which poyson the party dyeth within the Year, this implyeth malice, and is adjudged wilful Murder of Malice prepensed.

Note, that a man may be poysoned Four manner of wayes.

1 Gustu, by Taste, that is by Eating or Drinking, being in fused into his meat or drink.

[Page]2. Auhelitu. by taking in breath, as by a poysonous perfume in a Chamber, or other Room.

3 Contactu, by touching.

4. and lastly, Suppostu, as by a Glister, or the like. Thus much of malice implyed in respect of the manner of the Deed.

2 Malice implyed doth happen in respect of the person slain.

And therefore it hath been resolved, that if any Sheriff, Co: lib: 9. Mackalleys case, Cro: 2 part, Mackalleys case, Co. lib: 4. Youngs case. Under-Sheriff, Sergeant, or Officer who hath execution of Process be slain in doing his Duty, it is murder in him who kills him, although there were not any former malice betwixt them; for the Executing of Process is the life of the Law; and therefore he who kills such an Officer shall loose his life; for that Offence is Contra potestatem Regis & Legis, and therefore in such case there needs not any inquiry of malice.

The same Law is, if any Justice of Peace, Constable, or any other Officer, or any who comes with them in their Assistance, for the preservation of the peace be slain in executing their Office, it is murder through malice implyed: so if a Watch-man be killed in staying Night-walkers, it is murder:

One Thomas Pew was Arraigned for the murder of one Gardiner, and upon evidence it appears that the said Gardiner was a Bayliff Sworn and known, Co. Inst. f. 52. and Under-Bayliff to the Dean of Westminster; and he having the Sheriffs Warrant to Arrest the said Thomas [Page]Pew, upon a Capias out of the common Bench, and seeing him in Shyre-lane within the liberty of Westminster, the said Pew seeing him, drew his Sword, and the said Gardiner approaching to lay hold upon him; (not using any words of Arrest (as was proved,) Thomas Pew said (as it was proved upon the Examination of two Witnesses before the Coroner) stand off, come not near me, I know you well enough, come at your peril; and the Bayliff taking hold of him, he thrust him with his Sword that he dyed immediatly: It was held by all the Court that it was murder, for he coming as an Officer to Arrest, and not offering any violence, or provocation, although he used not words, I Arrest you, or shewed him any Warrant, because peradventure he had not time, nor was demanded the cause, the Law presumes it to be malice and murder in him that so kills one being an Officer, and coming to execute process.

Resolved that if there be Error in Awarding of process, Cro: 2 part Mackalleyes case, or in the mistake of one process for another, and an Officer be slain in the Execution thereof, the offendor shall not have the Advantage of such Error no more then a Sheriff who suffers a prisoner to escape, shall take advantage of any Error thereby; but the Resisting of an Officer when he comes to make an Arrest in the Kings name, is murder: But a man shall take advantage against an Officer where he is slain in doing an unlawful act; so likewise upon a variance in an essential part of the parties Name.

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As to the former, take this Resolution:

One Cook was Indicted for the Murder of Marshal, upon his Arraignment pleading not guilty, it was found that the said Marshal was a Bayliff to the Sheriff of — and had several Warrants upon several Capias ad satisfac. Crook 3 part, Cooks case 573. against the said Cook, and his Father directed unto him, and other Bayliffs, and that they by vertue or colour thereof, entred into the said Cookes stable and out-house, and hid themselves all Night, and at 8 of the clock next morning coming to Cooks dwelling House, called to open his doors, and suffer them to enter, because they had such Warrants upon such Writs at the Suit of such persons to Arrest him, and willed him to obey them: But the said Cook commanded them to depart, telling them they should not enter, and thereupon they brake the Window, and afterward came unto the door of the said House, and offered to force that open, and brake one of the Hinges thereof, whereupon the said Cook discharged his Musquet at the said Marshal, and strook him, of which stroke the day following he Dyed; and whether upon all this matter he be guilty of Murder or Man-slaughter, was the doubt. After Argument for Cook at the Bar, all the Justices delivered their opinions, that it was not Murder, but Man-slaughter only; for although he killed a Bayliff, yet he killed him not in duly executing process; for it is not Murder, unless there be Malitia praecogitata, or Malitia implicita, as to Murder one suddenly, or in Resistance [Page 39]of an Officer doing his Office by serving the process of Law wherein he is assisted Cum potestate Regis & Legis. But here this Bayliff was slain in doing an unlawful Act, in seeking to break open the House, to execute process for a Subject, which he ought not to do by Law; although he might have Entred if the door had been open and arrested the party, and it had been lawful, yet he ought not to break open the House, for that it is not Warranted by Law, and especially lying there in the night, and in the morning breaking the Window, and offering to force the door, which is not sufferable, for under colour thereof one may enter who hath not any such Authority, and every one is to defend his own House; yet they all held that it was Man-slaughter, for he might have resisted him without killing him, and when he saw him, and shot voluntarily at him, it was Man-slaughter.

As to the later touching the parties name, take this Resolution:

Sir Henry Ferrers was Indicted by the name of Sir Henry Ferrers Knight, for the Murder of one Stone whom one Nightingale Feloniously murdered, and that the said Sir Henry was present, aiding and abetting &c. Upon this Indictment Sir Henry Ferrers being Arraigned, said that he was never Knighted, which being confessed, Co. 3 part Ferrers case, f: 371, 372. the Indictment was held not to be sufficient; wherefore he was Indicted de novo, by the name of Sir Henry Ferrers Baronet, and being Arraigned, pleaded [Page 40] Not Guilty, and was tryed at the Bar, and upon Evidence it appeared that he was Arrested for Debt, and that Nightingale his Servant in seeking to Rescue him as was pretended, killed the said Stone; but because the Warrant to Arrest him was by the name of Sir Henry Ferrers Knight, and he never was a Knight; it was held by all the Court, that it was a variance in an Essential part of the Name, and they had no Authority by that Warrant to Arrest Sir Henry Ferrers Baronet: So it is an ill Warrant, and the killing of an Officer in executing that Warrant cannot be murder, because no good Warrant.

3. There is malice implyed in respect of the person killing.

As if A. assault B. to Rob him, and in resisting A. killeth B. this is Murder by malice implyed, albeit he never saw, or knew him before.

So if a prisoner by the Duress of the Goaler cometh unto an untimely death, this is murder in the Goaler, and the Law implyeth malice in respect of the cruelty; Co. 3. Inst. f. 52, & 91. and this is the cause, that if any man dyeth in prison, the Coroner ought to set upon his Body, to the end it may be inquired of, whether he came to his death by Duress of the Goaler, or otherwise.

So if the Sheriff or other Officer where he ought to hang the party attainted according to his Judgment, Doct. & Stud. lib. 2. c. 41. Co. 3. Inst. f. 52. & 217. and his Charge, will against the Law, of his own wrong, burn or behead him, or e converso; the Law in this case implyeth malice in him.

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So if a Capias be directed unto the Sheriff, to take a man in an Action of Debt, or Trefpass, Doct. & St [...]d: lib, 2. c. 42. there no man can take the Party but he must have Authority from the Sheriff; and if any man attempt of his own Authority to take him, and he Resisteth, and in Resisting is slain, he that would have taken him is guilty of Murder.

So if the Sheriff will by the Authority which the Law giveth him, Co. Lit. 161, a, Co. 3. Inst. 221. 4 H. 7.20. 14 H, 8.18 Arrest any man for Felony, which is not guilty, the party may Rescue himself, and if upon the Rescous the party is slain by the Sheriff, he is guilty of his death. But if A. be Indicted of Murdet, Robbery, Burglary, or other Felony, and the Sheriff by vertue of a Capias offer to Arrest him, and he Resisteth and flyeth, the Sheriff may kill him, if otherwise he cannot Arrest him, although in truth the party be Not Guilty, nor any Felony done: So by this we see that there is a diversity between a Warrant of Record, and a Warrant and Authority in Law.

Thus much of Homicides Voluntary, and of Malice fore-thought, viz. Petit Treason, and Murder.

It was the Law of Numa Pompilius: Si quis Hominem Liberum dolo sciens morti duit, parricida est.

As there are Homicides that are voluntary, and of malice fore thought, so there are some that be voluntary, and not of malice forethought; of which some be Felony, as Man-slaughter, [Page 42]and some be not Felony, as Se Defendendo, &c.

1. Of Homicide, which for Distinction-sake we call Manslaughter.

Man-slaughter is when one is slain with a mans will, Co. Lit. 287. b. but not with malice prepensed upon some sudden falling out, or Quarrel; as if two meet together, and striving for the Wall the one kill the other; this is Man-slaughter and Felony. So if two fall out upon a sudden occasion, and agree to fight in such a field, and each of them go and fetch their Weapon, Co. Inst, 51. & 55. and go into the field, and therein fight, the one killeth the other; here is no malice prepensed, for the fetching of the Weapon, and going into the field, is but a continuance of the sudden falling out, and the Heat of the Blood kindled by Ire, was never cooled till the blow was given. But if they appoint to fight the next day, that is malice prepensed, and consequently not Man-slaughter, but Murder.

One Royley was Indicted of the Murder of William Derman, and upon his Tryal a special Verdict was found, which was removed into the Kings Bench by Certiorari; Cro, 2. part [...]. Royleys case, 296. whereupon the case was found to be such, that William Royley Son of the said Royley fighting with the said Derman, and the said Derman beating him so as his Nose bled, he thereupon went to his Father, telling and complaining unto him of that Battery; whereupon the Father instantly [Page 43]went into the field, and finding Derman, called him Villein, and other opprobrious terms, and struck him with a little cudgel, of which stroke he afterwards dyed; and whether that were murder, or only man-slaughter, they doubted, and prayed the discretion of the Court, and all the Court Resolved, that it was but man-slaughter, for he going upon the complaint of his Son, not having any malice before, and in that anger beating him, of which stroke he dyed, the Law shall adjudg it to be upon that sudden occasion, and stirring of Blood, being also provoked at the fight of his Sons blood that he made that Assault, and will not presume it to be upon malice, unless it be found. And although the distance of the place where his Son complained was a mile, it is not material, being all upon one passion. So if one hear that his Brother, Cousin, or Servant is fighting upon a sudden occasion, and he go to the place where they are fighting, (although a mile or more distant,) and finding the Adversary, fights with him, and kills him, it is not Murder, but Manslaughter, and being before the general Pardon, was discharged thereby.

Thus much of Man-slaughter, that is not of malice prepensed, but yet Felony.

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3. Of Se Defedendo, that is Voluntary, and not Felony.

Se Defedendo is voluntary Homicide, and yet being done upon an inevitable occasion, is no Felony; as if A. be Assaulted by B. and they fight together, and before any mortal blow given A. giveth back until he cometh to a hedg, wall, or other straight beyond which he cannot pass, and then in his own Defence killeth the other, this is voluntary, and yet no Felony; and the Jury that find it was done Se defedendo, ought to find the special matter.

But yet there are some Cases wherein a man is bound to give back; as

1. Fleta lib. 1. c. 23. Co. 3. Inst. 56. If A. Assault B. so fiercely and violently, and in such a place, and in such a manner as if B. should give back, he should be in danger of his life, he may in this Case defend himself, and if in that Defence he killeth A. it is Se Defedendo, because it is not done Felleo animo, and consequently Justifiable; with our Law dos Concur the Law Imperial: D: 1.7, 3. Jure hoc evenit, ut quod quisque ob tutelam Corporis sui fecerit, D. 47.9, 3.7. jure fecisse existimetnr. Non injuria fecit, qui so tueri voluit, cum alias non posset.

2. Co. lib. 5. Semaynts case 21. 1 H, 7. 39 Co. 3. Inst. 56. If a Thief offer to Rob or Murder B. either abroad, or in his House, and thereupon Assault him, and B. defend himself without any giving back, and in his Defence killeth the Thief, this is no Felony, for a man shall [Page 45]never give way to a Thief, &c. neither shall he Forfeit any thing, and so it is declared by the statute of 24 H. 8. c. 5.

One Cooper being Indicted in the County of Surrey of the murder of one W. L. in Southwark, he pleaded Not Guilty; Cro. 3. part Cowpers case, 554, and upon his Arraignment it appeared that the said Cooper being a prisoner in the Kings Bench, and lying in the House of one Anne Carrick, who kept a Tavern within the Rules, the said W. L. at one of the clock in the Night assaulted the said House, and offered to break the staple thereof, and swore he would enter the House, and slit the Nose of the said Anne Carrick, because she was a Bawd, and kept a Bawdy-House; and the said Cooper disswading him from these Courses, and reprehending him, he swore that if he could enter, he would cut the said Coopers Throat; and he brake a window in the lower Room of the House, and thrust his Rapier in at the window against the said Cooper, who in defence of the House, and himself, thrust the said W. L. into the eye, of which stroak he dyed. The Q [...]estion was, whether this were within the Statute of 24 H. 8. and the opinion of the Court was, that if it were true that he brake the House with an intent to commit Burglary, or to kill any therein, and a party within the House, (although he be not the Master, but a Lodger or Sojourner therein) kill him who made the Assault, and intended mischief to any in it, that it is not Felony, but excusable by the Statute of 24. [Page 46] H. 8. which was made in the affirmance of the Common Law; wherefore the Jury were appointed to consider of the circumstances of the Fact, and they being a substantial Jury of Surrey, found the said Cooper not Guilty upon the Indictment, whereupon he was discharged.

3. 22 Ass. pl. 55. If a prisoner assault the Goaler, the Goaler is not by Law inforced to give back, but if in defence of himself he kill the prisoner, this is no Felony.

4. 3 E. 3. Cor. 290. If any Officer or Minister of Justice that hath lawful Warrant, and the party assault the Officer, or Minister of Justice, he is not bound by Law to give back, but to carry him away; and if in execution of his Office he cannot otherwise avoid it, but in striving kill him, it is no Felony.

Note, if men tilt or turney in the presence of the King; or if two Masters of Defence playing their prizes kill one another, this is no Felony, 11 H. 7.23. a. Hobarts Reports, Weaver v. Ward f. 134. And the reason given is, for that in Friendly manner they contend to try their strength, and to be able to do the King service in that kind as occasion should be offered.

Hitherto of Homicides that be voluntary, and no Felony, whereof some be in respect of giving back inevitably in defence of himself, upon an assault of Revenge, and some without any giving back, &c. I now proceed to that Homicide that is not Felony, neither fore-thought, nor voluntary, and this we [Page 47]call Man-slaughter by misadventure, or Chance-medley.

3. Of Homicide by misadventure.

Chancemedley, or per Infortunium, Co. Litt. 287.6. is when one is slain casually, and by misadventure, without the will of him that doth the Act, whereupon death ensueth. 11. H. 7.23. a. 21. H. 7:28. a. 6. E. 4.7. Or Homicide by misadventure is when a man without any evil intent doth a lawful thing, or that is not prohibited by Law, and another is slain or cometh to his death thereby, as if one shoot at Butts, or at pricks, and kill a man, by swarving his hands, this is no felony; Bract. l. 3. c. 4. n. 3. The same Law is of tiling an House, and a tile fall, and killeth one. So if one trained Souldier hurteth another in skirmish, of which hurt he dies, this being by misadventure is no felony. But in any of these Cases before put if a man be hurt or maimed only, an Action of Trespass lieth against him that was the cause of the hurt, or maime, though it be done against the parties mind and will; because in Civil Trespasses and injuries, that are of an inferior nature, the Law doth rather consider the damage of the party wronged, then the mind of him, that was the wrong doer.

Vide Hobarts Reports Weaver against Ward f. 134. But to return from whence I have made a digression: It is to be considered, whether he that commiteth this Homicide by misadventure in doing a lawful [Page 48]Act, and likewise without an evil intent; for if the Act be unlawful, or done with an evil purpose, it will prove murther.

1. Touching an unlawful Act: If a man shoot at a Cock or Hen, or any fowl of another man, and the arrow by mischance kill a man, this is said to be murther, for the Act was unlawful. So if a man doth beat another, and with intent not to kill him, yet if the party be killed by this battery, it is felony.

So if two are fighting together, and a third cometh to part them, and is killed by one of them two, without any malice forethought, 11. H. 7.23. a. yet this is murther in him, and not Homicide by Chancemedley, or misadventure, because that they two that fought together, were in doing of an unlawful Act. And if they were met with prepensed malice, the one intending to kill the other, then it is murther in them both.

2. Touching an evil Intent: If a man knowing that many people come in the street from a Sermon, throw a stone over a wall, intending only to fear them, or to give them a light hurt, and thereupon one is killed, this is murther, for he had an evil intent, though that intent extended not to death, and though he knew not the party slain.

Note, though the killing of a man by misadventure, Co. 3. Inst. f. 57. or by chance, be not felony, Quia in maleficiis voluntas spectatur, non exitus. D. 48.8.14. yet the party guilty shall [Page 49]forfeit therefore all his Goods, and Chattels, to the intent that men should be cautious, as they tend not to the effusion of mans blood: I shall conclude this learning touching Homicides, with somewhat appertaining to Physicians and Chirurgians.

If one that is of the mystery of a Physician, take a man in Cure, Co. 3. Just. 257. and giveth him such Physick, as within 3 dayes he dies thereof without any felonious intent, and against his will, it is no Homicide: But Briton (cap. 5. De Homicides,) saith, that if one who is not of the mystery of a Physician or Chirurgion, take upon him the Cure of a man, and he dieth of the potion, or Medicine, this is, saith he, Covert felony. In the Civill Law it is thus: Medico imputari eventus mortalitatis non debet: D. S 18.6.7. Ita quod per imperitiam commisit, imputari ei debet, praetextu humanae fragilitatis delictum decipientis in periculo homines inoxium esse non debet.

Imperitia culpae adnumerontur: Just. 4.3.7. veluti si Medicus ideo servum tuum occiderit, quia male secuerit: aut perperam ei medicamentum dederit,

Thus much of the Pleas of the Crown, that have relation to the life of man; I proceed now to those that respect the body and members.

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2. Of those Crimes, that appertain to mans body, or members, and they are Battery, Mayhem, and Rape.

Battery, 1. Of Battery. is when a man assaulteth and beateth another, this is against the Law and Peace of the Realm, which ordaineth, that no man shall be his own Judge, or revenger of his own private wrong, but shall leave this to the Censure of the Law; (And this is agreable to the Roman Laws: Cod. 3.5: 1. Generali lege decernimus, neminem sibi esse judicem vel jus sibi dicere debere. In re enim propria iniquum admodum est alicui licentiam tribuere sententiae. D. 50.17.176. Again: Non est singulis concedendum, quod per Magistratum publi [...] possit fieri, ne occasio sit Majoris tumultus faciendi: wherefore he that is so beaten may indict the other party, who upon it shall be fined to the King: But some there are that may in a reasonable and moderate manner chastise, correct and beat others.

1. In respect of power, proceeding from the Law of nature, as Parents may correct their own Children.

2. In respect of Authority oeconomical, as the Master may chastise his Servant, or Apprentice.

3. In respect of power arising from Civil Justice; as the Gaoler and his servant, the unruly prisoners; the Officers, him that is [Page 51]arrested, and will not otherwise obey.

Also a man may justify the beating of another, in defence of his own person, or of the person of his Wife, Father, Mother, or Master: But when any is assaulted, or beaten in Church, or Churchyard, Cro. 2: part Frances. v. it is not lawful for him to return or give any blows in his own defence, as he may elsewhere in other places.

Mahim, 2. Of Mahim. Co. Lit. 126. a. F. 288. a. or maime (Mahemium) cometh of the old French (Mehaigne) a Maime a corporal hurt, whereby a man loseth the use of any member. The Canonists call it Membri mutilationem, or Mayhem, is where by the wrougful Act of another any member is hurt or taken away, whereby the party so hurt is made unperfect to fight: As if a bone be taken out of the head: or a bone be broken in any other part of the body, or foot, or hand, or finger, or joynt of a foot, or any member be cut: or by some wounds the sinews be made to shrink or other member, or the fingers made crooked, or if any eye be put out, or the foreteeth broken, or any other hurt in a mans body, by means whereof he is made the less able to defend himself, or offend his enemy: But the cutting of an ear or Note, that to cut maliciously the nose of another, is made felony by, a Law enacted in the Reign of his now Majesty. nose, or breaking the hinder teeth, or such like, is no Mayhem, because it is rather a deformity of the body, then diminishing of strength, and that is commonly tryed by beholding the party by the Justices. And if the Justices stand in doubt, whether the hurt be a Mayhem or not, they use, and [Page 50] [...] [Page 51] [...] [Page 52]will of their own discretion, take the help and opinion of some skilful Chirurgeon, to consider thereof, before they determine upon the Cause.

But whether a man may be indicted for maiming himself? Co. Lit. 127. a, b. To this it answered, that he may; As it appears in the Case of one Wright, anno 11. Jac. in the County of Leicester; who being a yong, strong, and lusty rogue, to make himself impotent, thereby to have the more colour to beg, or to be relieved, without putting himself to any labor, caused his Companion to strike off his left hand, and both of them were indicted, fined, and ransomed therefore, and that by the opinion of the rest of the Justices, for the members of every subject are under the safeguard and protection of the King, to the end that they may serve the King, when occasion shall be offred, and therefore not in the power of a subject to maim or hurt his own body or limbs, or to cause another to do it. And this is agreable to the Civil Law, Nemo membrorum suorum est dominus: Liber homo suo nomine utilem aquiliae habet actionem: directam enim non habet; quoniam dominio membrooum suorum nemo videtur. D. 9.2.13.

By the ancient Law of England, he that maimed any man, whereby he lost any part of his body, the Defendant should loose the like part, Co. 3. Instit. 118. (as he that took away another mans life, should loose his own) And this was grounded upon the Law of God, Levit. 24. v. 18, 19.20. Deut. 19. v. 21. It [Page 53]is called among the Latines Lex Talionis, or Reparationis, among the Greeks, [...], per quam quis patitur, quod alteri fecit.

This offence of May 'em is under all felonies deserving death, Co. Litt. 127. a. and above all other inferiour offences, so as it may be truly said of it, that it is, Inter crimina majora minimum & inter minora maximum.

Rape, 3 Of Rape. is the violent deflouring of a Woman against her will; and this offence is felony, as well in the principal, as in his Aiders. Vide 11. Hen. 4. c. 13.1. E. 4. c. 1. West. 2. c. 13. Cromptons Justice of Peace f. 43, 44. But my Lord Coke defines it thus: It is when a man hath carnal knowledge of a woman by force, and against her will, Co. Litt. 123. b. or Rape is felony by the Common-Law, declared by Parliament for the unlawful and carnal knowledg, and abuse of any woman above the age of ten years against her will, Co. 3. Instit. f. 60. or of a woman child under the age of ten years, with her will, and the offender shall not have the benefit of Clergy. Vide 18. Eliz. c. 6.

If the party that is ravished, Stamf. 24. conceive by the Ravisher a child at the time of the Ravishment, this is no Rape, because she could not conceive, unless she assent.

Bracton in 24th chapter of his third book sheweth, that by the Antique Law of King Athelstan, He that meeting a Virgin sole, or with company, did but touch her unhonestly, was guilty of breaking the Kings Edict; If against her will, he threw her on [Page 54]the ground, he lost the Kings favour; if he discovered her, and cast himself upon her, he lost all his possessions: if he lay with her, he suffereth Judgement of life, and member: yea, if he were an Horse-man, his horse lost his tail and main. His hawk likewise lost her beak, Tallons and train. And the Virgin had in recompense all his Land and money by the Kings Warrant. This was in the King Athestans dayes; But in Bractons time, it seemeth that these kind of Ravishers were other wise punished, they lost their eyes and privy members. Co. Litt. 123. b. 29. H. 6. Tit. Coron. 17. Bracton lib. 3. f. 147.

The Civil Law: D. 48.6.6. Punitur Lege Julia de vi publica, qui puerum, vel foeminam, vel quemquam per vim stupraverit.

Hitherto of the offences, that touch the body and members; viz. Battery, Mayhem, and Rape.

3. Of those Offences that dispoil men of their property.

Those Crimes or Pleas of the Crown, that deprive others of their property, are two, §. Furtum, or Theft, and Burning of Houses.

1. Of Theft.

In Theft are to be considered 3. things, the Etymology of the word Furtum, the definition, and its several kinds.

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Furtum, a furvo, id est, 1. The Etymology. nigro dictum Labeo ait: quod clam & obscuro fiat, & plerumque nocte, vel a frraude, ut Sabinus ait: vel a ferendo & auferendo: b. 47.2. 1. Just. 4.1, 2. vel a Groeco sermone, qui [...] appellant fures: Imo & Graeci [...], id est, a ferendo [...] dixerunt.

Bracton thus defines it, 1. The definition. Furtum est secundum Leges, contrectatio rei alienoe fraudulenta, cum animo furandi, invito illo Domino, eujus res illa fuerit. Lib: 3. f. 150.

The Civilians thus: Just. 4:1.1. D. 4.7.2.1.3. Furtum est contrectatio fraudulosa, lucri faciendi gratia, vel ipsius rei, vel etiam usus ejus, possession sve, quod lege naturali prohitum est admittere.

That Theft is forbidden by the Law of nature, is manifest by these Authors.

1. Cicero: In vita sibi quemque petere quod pertineat ad usum non iniquum est: alteri surripere, jus non est.

Theft generally taken, 3 Its species or kinds. doth comprehend Larceny, Robbery, Burglary, and Pyracy: of these in order.

1. Of Larceny.

Larceny, by the Common Law, is the felonious and fraudulent taking, and carrying away by any man or woman, Co. 3. Inst. 107. of the meer personal goods of another, neither from the person, nor by night in the house of the owner: This Larceny is twofold, the one so called Simply, and the other Petit, or Little Larceny.

The first is where the thing stollen exceeds [Page 56]the value of 12. pence, and that is felony.

The other (which is called little, or petit Larceny) is where the thing stollen doth not exceed the value of 12. pence, and that is not felony.

From the Description and Division of Larceny, I proceed to propose these following Queries, with Resolutions on them.

Whether Larceny can be committed, Quaest. where there is a Bailement, or Delivery, by the owner of the thing?

Larceny is perpetrated by an actual taking: Resp. for an Indictment, Quod felonice abduxit is not good, because it wanteth coepit. By taking, and not Bailement or delivery, for that is a Receipt, and not a taking: and therewith agreeth Glanvil, Lib. 10. c. 13. Furtum non est ubi initium habet detentionis per dominum rei; But this Rule of Glanvil has its exceptions; as appears by these Cases in our Law. Co. 3. Inst. 107.13. E. 4.9. If a Carryer hath a bale or pack of Merchandise delivered unto him to carry it to an appointed place, and after he take the whole pack animo furandi, this is Larceny: for the delivery had taken his effect, and the privity of the Bailement is determined; so if he open the pack, and take any thing out Furtum sine assectu furandi, non committitur: Just. 4.1.7. animo furandi, 'tis Larceny.

If a Taverner set a piece of plate before a man to drink in it, and he carry it away, this is Larceny: for it is no Bailement, but a special use to a special purpose. 13. E. 4.9. Perkins sect. 191:

To conclude, our Law does make a distinction between a Possession and a Charge; [Page 57]for when I deliver goods to a man, 21. H. 7.15, a, 12. H. 7.15. a. 3 H. 7.12. Cro. 1. part Holiday. vers. Hickes. 638. he hath the possession of the goods, and may have an Action of Trespass, or an Appeal, if they be taken or stoln out of his possession. But my Butler or Cook, that in my house hath charge of my vessel or plate, hath no possession of them, nor shall have an Action of Trespass or an Appeal, as the Baily shall, and therefore if they steal the plate or vessel, it is Larceny: And so it is of a shepheard, for things be in onere, & non in possessione Promi, Coci, Pastoris, &c.

Whether of goods found and converted animo furandi, Quaest. 2 Larceny can be committed?

If one loose his goods, Resp. and another find them, though he convert them animo furandi, to his own use, yet it is not Larceny, for the first taking is lawful.

So if one find Treasure Trove, Waif, 22. Ass. pl. 99.22. c 3. Cor. 265. or Stray, and convert them cum affectu furandi: it is no Larceny, both in respect of the finding, and also for that Dominus rerum non apparet: And non esse, & non apparere tantundem valent quoad eum, cui non apparet.

Whether an Infant, Quaest. that is under the age of discretion, can commit Larceny?

An Infant, until he be of the age of 14, Resp. which in Law is accounted the age of disscretion cannot commit Larceny, Co. Litt. 247. b. Co. 3. Inst f. 4, & 108. or other felony; for the principal end of punishment is, that others by his example may fear to offend: But such punishment can be no example to Infants, that are not of the age of discretion:

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But it appears by Lambard f. 2. nu. 7. that the Law was heretofore thus: Infans decem annorum furti reus censeatnr. But having given you a determination according to our Law, I will mention the Law of the Romans and Greeks.

1. The Civil Law: Quaesitum est, an Impubes rem alienam amovendo, furtum faciat? Et placuit, quia furtum ex affectu furandi consistit, Just. 4.1.14. D. 47.2.23. De furtis. ita demum obligari eo crimine impuberem, si proximus pubertati sit, & ob id inlelligat se delinquere.

Impuberem furtum facere posse, nisi jam dolis capax sit, Julianus lib. 22. Digest. scrpsit. for Aetatis habetur ratio in delictis.

2. The Law of the Greeks: Aelian lib. 5. cap, 16. Varr. Hist. hath this story: When a certain Boy, who had stoln away a golden plate, that fell from Diana's Crown, was brought in Judgment before the Areopagitae: Those Judges, caused Cocke-Hall, Bones, Rattles, and the golden plate to be laid before the Child, in whom perceiving an inclination again to the golden plate, rather then to the Rattles and other things more suitable to his childhood, without pitty to his Infancy, they, condemned him to death, as a Sacrileger, thinking it fit to crop that sin and wickedness, which they discerned to be in him, being yet but in the blade, and herbe.

Whether a Feme Covert can be guilty of Larceny? Quaest. 4

If a man and his wife commit Larceny joyntly, Resp. the feme can neither be principal [Page 59]nor accessary, but it shall be wholly adjudged the husbands fact, because the Law intends her to have no will, in regard of the subjection and obedience she owes to her husband: But a woman by her self, without the privity of her husband, Stamford. 26.2. E. 3. Cor. 160. Fitzh. The Womans Lawyer lib. 3. sect. 43. may commit Larceny or other felony, to become either principal or accessary: As if she steal goods, or receive thieves to her house, &c. and if the husband as soon as he perceives it, waive and forsake their company and his own house, in this case the womans offence makes not felony in the Baron. But if the Baron commit felony, his wife not ignorant of it, may keep his company still notwithstanding, and not be declared accessary.

Note, Stamford lib. 1. c. 19. that a woman cannot be thief of her husbands goods, if she take and give them away, the Receiver is no felon.

Whether Larceny can be committed of a thing, Quaere 5 that is delivered by Replevin.

If a man seeing the horse of B. Resp. in his pasture, and having a mind to steal him, comes to the Sheriff, Co. 3. Inst. 108. Co. 2. Inst. 242. Co. lib. 13. Sprat and Heales and pretending the horse to be his, obtaineth the horse by Replevin, yet this is a felonious and fraudulent taking, as it was resolved by the Judges, as Catlin Chief Justice reported in the Kings Bench Pasch. 15. for the Replevin was obtained in fraudem Legis; And fraus Legi fit, ubi quod fieri noluit, fieri autem non vetuit, id fit.

Whether the removal of things felleo animo, Quaere 6 from one room to another, in the same house, can be Larceny?

The removing of things taken, Resp. though [Page 60]they be not carried away, is Larceny as if a Guest take the coverlet or sheets of his bed, and rising before day, take the coverlet or sheets out of the chamber, where he lay, 21. Ass. Pl. 39. Co. 3. Inst. 108. & 109. into the Hall, to the intent to steal them, and went to the stable, to fetch his horse, and the Hostler apprehended him, and this was adjudged Larceny: and the coverlet or sheets were carried away, to the Hall, albeit they were still in the house of the owner.

So if a mans horse be in the close, and one taketh him, and as he is carrying him away he is apprehended, Justice Dalisons Report. before he getteh out of the close, yet this is sufficient to to make it Larceny.

Whether Larceny can be committed of personal goods, Quaere 7 that favour any thing of the Realty?

Of personal goods, Resp. if they savour any thing of the Realty, no Larceny can be committed, as taking apples out of an Orchard, growing upon the tree, or grass standing on ground, &c. though they be taken with a felonious intent, is not felony, for that they are parcel of the freehold: But if the owner cut the grass, or gather the fruit, then Larceny may be committed of them.

So it is of a Box or Chest with Charters, no Larceny can be committed of them, 10. E. 4.14. Co. lib. 8. Caleyes Case. 33. b. because the Charters concerne the Realty, and the Box or the Chest, though it be of great value, yet shall it be of the same nature, the Charters be of: Et omne majus dignum trahit ad se minus.

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Whether Larceny can be committed of Winding sheets about dead Bodies? Quaere 8

At the Assizes at Leicester, Resp. the Case was this: One William Haine had in the night digged up the Graves of divers several persons and took the Winding sheets from the Bodies, 10. Jac. Regis; Haynes Case. and buried the Bodies again: and Sr. Edward Coke, advising hereupon for the rareness of the Case, consulted with the Judges at Serjeants-Inn in Fleet street, where they all resolved, That Mors est, [...]um quis e vivis excessit, qua jus omne extinguitur quod persone coheret. although the dead Body is not capable of any property, yet the property of the sheets must be in some body, and therefore in the Executors, Administrators, or other owner of them: And according to the Judges resolution, he was indicted of felony at the next Assizes, but the Jury found it but petit Larceny, for which he was whipped, as he well deserved.

Whether a man may commit Larceny of his own goods? Quaere

If a man doth Baile or send his goods to another, Resp. although he hath the general property, 7. H. 6.43. Cro. 1. part. Stafford. Vide Poole. Co. 3. Inst. f. 110. yet may he commit Larceny of them, by the felonious taking and carrying them away, and in Judgment of Law, is said in this Case to take the goods of another: For the Bailer hath Jus proprietatis, and the Bailee hath Jus possessionis, or a special property. But let us see what the Civil Law saies in such Cases.

Aliquando etiam suae rei furtum quis committit: Inst. 4.1.12. veluti si debitor rem, quam Creditori pignoris causa dedit, subtraxerit.

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Si is qui rem commodasset, D. 47.2.59. De Commedato. eam rem clam abstulisset, furti cum eo agi non potest, qui [...] suum recepisset, & ille commodati liberatus esset. Hoc tamen ipsa accipiendum est si nullas retinendo causas is cui commodata res erat, habuit. Nam si impensas necessarias in rem commodatam fecerat, interfuit ejus potius per Retentionem eas servare, quam ultro commodati agere. Ideoque furti actionem habebit: Thus much of Larceny.

1. Of Robbery.

Robbery is (saies Coke) a felony by the Common Law, committed by a violent assault, upon the person of another, by puting in fear, and taking from his person his money or other goods of any value whatsoever: Or it is (saies another) a felonious taking away of another mans goods from his person or presence, against his will, putting him in fear, and of purpose to steal the same goods. We call it Roberia, & Rapina, and the Thief Raptor.

Out of which descriptions, the Reader may observe these special circumstances: 1. 5. Eliz. Dyer 224. b. That it is not Robbery, unless the party be put in fear, as by assault and violence, And this circumstance of fear, maketh the difference between a Robber and a Cut-purse: both take it from the person, but this latter takes it clam & secrete, without assault, and putting in fear, The latter by violent assault, and putting in fear.

2, That the word (taking) necessarily [Page 61]implyeth that the Robber must be in possession of the thing stoln; for example, Co. 3. Inst. f. 69. If the bag or purse of the true man be fastned to his girdle, &c. and the Robber more easily to take the bag or purse, do cut the girdle, whereby the bag or purse, falleth to the ground, this is not taking, for the Thief had never any possession thereof; but if the Robber had taken up the bag or purse, and in striving had let it fall, and never took it again, this had been a taking, because he had it in his possession; for the continuance of his possession is not required by Law.

3. Though Robbery is so called, because the goods are taken de la robe, from the Robe, that is from the person; 14. E. 3. Cor. 11▪ yet if the true man seeking to escape for the safeguard of his money, cast it into a bush, which the Robber perceiving; This is a taking in Law from the person, because it is done at one time.

But, the Quaere may be, Whether the Thieves reception only by such a taking in Law, as to make it Robbery? It is answered, That a Thief's reception will make it Robbery; As if Thieves rob a true man, and find but little about him, take it, this is an actual taking, and by means of death, 44. E. 4.14.4, H. 4.2. compel him to swear upon a book to fetch them a greater sum, which he doth, and deliver unto them, which they receive, this is a taking in Law by them, and adjudged Robbery:; for fear made him to take the oath, and fear continuing, made him bring the money, which amounteth to a taking in Law.

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[Page 64]4, 14. E. 3. Cor. 115.22. Ass. pl. 39. Just. 4.2. De vi bonorum raptorum. and lastly: That an assault only to rob without taking some money or goods is no felony, for somewhat must be taken.

Touching Robbers take somewhat of the Civil Law, Qui vires alienas rapit, tenetur quidem etiam furti: Quis enim magis alienam rem invito domino contrectat, quam qui vi rapit?

Non prodest ei qui vi rapuit, D. 47.8.5. De restitutione rei. ad evitandam poenam si ante judicium restituat rem quam rapuit: Multo minus (saies Gothofredus on this Text) si poeniteat post delictum; vere enim ad evitandam poenam sola poenitentia sufficit. Cur [...] plus est rem restituere, quam poenitere, & ita tenent Doctores omnes comuniter.

Thus much of the offence called in our Law Robbery.

3. Burglary.

Touching Burglary, there are 3 matters worthy of observation: viz. 1. The Etymomology or origination of the word. 2. Its Definition: 3. Resolutions concerning this offence.

The word Burglary, 1. The Etymology. is derived of two words Burgh and Laron, Burgh signifying an House, Co. lib. 4. f. 39. Brooke's Case. and Laron signifying a Thief, as it were a House Thief.

This crime, according to the acceptance of our Common Law is thus defined.

It is when one breaketh and entereth into the house of another in the night, with a felonious intent to rob or kill, or to do some other felony; in which cases, although he [Page 65]carry away nothing, yet it is felony, for which he shall suffer death.

The Resolutions that are given upon this offence, are these following.

1. Touching fraction and entry: 4. The Resolutions. If the door of a mansion house stand open, and the Thief enter into the house with a purpose to steal, this is a breaking of the house in Law, and no Burglary, because there must be an actual breaking, for the words of the Indictment are, Felonice & Burglariter fecit, &c. which are to be understood of an actual breaking of the house, and not of a breaking in Law. Co. 3. Inst. f. 64. So it is if the window of the house be open, and the Thief with a hook, or other engine draweth out some of the goods of the owner: this is no Burglary, because there is no actual breaking of the house. But if the Thief breaketh the glass of the window, and with a hook or other engine draweth out some of the goods of the owner; this is Burglary, for there was an actual breaking of the house.

If divers come in the night to do a Burglary, and one of them breaketh and enter, the rest of them standing neer to the door, 13. H. 4.13. or about other part of the house, &c. to watch that no help shall come to defend the owner, this is Burglary in all.

But sometimes Burglary may be committed by entry without any breaking: For example; if a servant will conspire with other men to rob his Master, and to that intent [Page 66]he openeth his Masters doors and windows in the night for them, that they come into the house by that way, this is Burglary in the strangers, and the servant is a thief; but no Burglar. And this was the opinion of Manwood Chief Baron of the Exchequer, at the Quarter Sessions holden at Canterbury in January 1579. 21. Eliz.

2. Touching Mansion houses.

If upon accident a man and all his Family are out of the house, and one in the interim breakes the house, and commit felony, it is Burglary, although neither the owner nor any of his Family is in the house, for the Indictment of Burglary is Domum mansionalem, Co. Lib. 4. Brokes Case. f. 39. &c. fregit, &c. and this is domus mansionalis: And so it was resolved 38. of Eliz. where a man hath two mansion houses, and servants in both, and in the night when the servants are out, &c. the house is broken, tis Burglary.

But whether a Church, a Booth in a Fair, or a Chamber of an Inns of Court, may be termed Domus mansionalis? It is answered;

1. As to a Church: If a man do break and enter into a Church in the night with intent to steal, this is Burglary, and Sacriledge; for Ecclesia est domus mansionalis Omnipotentis Dei.

Concerning this horrible crime of Sacriledge, I shall present some learning out of Justinian and Seneca.

Sunt Sacrilegi qui publica Sacra compilaverunt. [Page 67]At qui privata Sacra, Qui sunt Sacrilegi vel non. vel Aediculas incustoditas temptaverunt, amplius quam fures, minus quam Sacrilegi, merentur. D. 48.13.9.1.

Quisquis id, sayes Seneca, quod Deorum est, sustulit & consumpsit, atque in usum suum convertit, Sacrilegus est.

Sacrilegii poenam debebit Proconsul pro qualitate personae, proque rei Conditione, Poenas Sacrilegii. & temporis, & aetatis, & sexus, vel severius vel clementius statuere. Et fcio multos & ad bestias damnasse Sacrilegos: nonnullos etiam vivos exussisse, alios vero in furca suspendisse. D. 48.13.6. Sacrilegi capite puniuntur. D. 48.13.9.

2. As to a Booth or Tent.

A Tent or Booth in a Fair or Market, is not Domus mansionalis, but of another name or kind; but that is provided for by the Statute 5. E. 6. c. 9. whether the robbery be done in the night or in the day, the owner, &c. being within the same, sleeping or waking.

3. As to Chambers, belonging to Inns of Court.

A Chamber of an Inns of Court, Cro. 3. part. Evans and Finches Case. or Chancery broken open, is said to be Domus mansionalis of him who is the owner of the said Chamber.

Thus much touching the Mansion houses.

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3. Touching the intention of the Party.

If a man be Indicted, that he in the night time did feloniously break the house of I. S. ad verberandum ipsum I. S. this is no Burglary, 13. H. 4.7. because it was but to beat, and not to kill; But if it were ad interficiendum I. S. then it is Burglary, though he never touched him, for the intent must be to commit felony, and not trespass or other thing, that is not felony.

4. Touching that which is perpetrated In fraudem Legis.

If Thieves come in the night with hue and cry, pretending that they be robbed, and shall require the Constable to search for the felons, and whilst he goeth with them into some mans house, they bind and rob the Constable and dwellers, this is Burglary; Co. 3. Inst. f. 64. for in Judgment of Law, it is their act; and that which is done in fraudem Legis, the Law giveth no benefit thereof to the Party.

You see by what has been said before, that Burglary the Common Law restrains to a robbing of a house, by night or breaking in, with intent to rob or to do some other felony; but the like offence committed by day, we call House-breaking, or Robbing, (and not Burglary) and this kind of felony is provided for by the Stat. 39. Eliz. c. 15. of 39 Eliz. That if any man shall break a house by day, [Page 69]and take away thence money or goods, to the value of five shillings, or more in any part of the dweling house, or Out-house, belonging to the same, though no person be therein, for this felony he shall lose the benefit of his Clergy; so as for this offence the party shall suffer death, as in case of Burglary

Upon this Law, happened this Case following:

Evans and Finch were arrigned at the Gaole delivery of New-Gate: for that they about 12. a clock in the fore-noon, brake open Domum mansionalem Hugonis Audeley, Cro. 3. part. Evans and Finches Case. in the Inner Temple, no person being in the said house, and stole from thence 40. pounds. And upon evidence it appeared, that the said Evans by a ladder climbed to the upper window of the said Audeley's chamber, and took out thereof the said 40. pounds: And that the said Finch stood upon the ladder in the view of the said Evans, and saw Evans in the chamber, and was assisting to the committing of the said robbery, and took part of the money. And all this matter being found, it was adjudged, because the said Finch did not enter into the chamber, that he was not within the Statute of 39. Eliz. which takes away Clergy, where an house is broken open, and the robbery is above the value of five shillings, no person therein, that he should have his Clergy, which was allowed him. And as for Evans the special verdict found, that he was in [Page 70]the chamber of Hugh Audeley, in the Inner Temple, and that the robbery was committed between 12, and one of the clock in the day time, no person being within the chamber at the time of the breaking thereof, but that divers persons were in the Inner Temple Hall, and in other places of the house: And whether this be a breaking open the house, and taking of goods above the value of five shillings; nnulla persona, being within the house, and within the said act of 39. Eliz. they prayed the discretion of the Court? And it was resolved upon this special verdict (being removed by Certiorari into the Kings Bench, and the prisoner removed by Habeas corpus) that this breaking open the chamber, and taking 40. pounds out thereof, nulla persona being therein (although there were divers persons in other parts of the house) was within the Stat. of 39. Eliz. which takes away Clergy from such offenders: Wherefore Clergy was denyed to the said Evans, and Judgment given in the Kings Bench, that he should be hanged.

Thus much of Burglary, and likewise of House-breaking.

4. Pyracy.

The word Pyrat, Co. Lit. 391. a. 3. Instit. f. 113. in Latine Pirata, is derived from the Greek word [...], which again is fetcht from [...], a transoundo mare, of roveing upon the Sea, and therefore [Page 71]in English a Pyrate is called a Rover, and a robber upon the Sea.

Having shewed the Etymology, I propound these Questions with their resolutions touching Piracy.

Whether Piracy were anciently treason? Qu. 1

Before the Statute of 25. E. 3. c. 2. Resp. De proditionibus, if a Subject had committed Piracy upon another, this was holden to be Petit treason, 40. Ass. pl. 25. for which he was to be drawn and hanged: because Pirata est hostis humani generis, and it was contra Ligeantiae suae dehitum; but since the aforesaid Satute, this is no treason in the case of a Subject.

Whether Piracy can alter property? Qu 2

Piracy does not change property no more then theft at Land. Hobart's Reports f. 78. Resp.

When goods are tortiously taken upon the Sea by Piracy, Cro. 1. part. Anonymus f. 685. it gaineth not any property in them against the owner; and being sold on the Land, unless it were in Market overt, doth not alter the property.

The Civil Law speakes thus:

A Piratis, aut latrenibus capti, D. 49.15.19.2. liberi permanent.

Qui a latronibus captus est, D. 49.15.24. servus latronum non est, nec post liminium illi necessarium est.

Piratae, quae capiunt, non mutant dominium. Grotius l. 3. c. 9. n. 16. De jure belli.

Whether Attainder for Piracy doth work corruption of blood, or forfeiture of Lands? Qu. 3 Resp.

If Piracy be tryed before the Lord Admiral in the Court of the Admiralty, according to the Civil Law, and the delinquents [Page 72]there attainted, yet shall it work no corruption of blood, nor forfeiture of his Lands, otherwise it is, if he be attainted before Commanders by force of the Statute of 28. H. 8. c. 15.

Whether a Pardon of all felonies shall extended to Piracy? Qu. 4

About the end of the Reign of Queen Elizabeth, Resp. certain English Pirates that had robbed on the Sea Merchants of Venice in amity with the Queen, Co. Lit. 39. a. being not known, obtained a Coronation Pardon, whereby amongst other things, the King pardoned them all felonies: It was resolved by all the Judges of England, upon conference and advisement, that this did not pardon the Piracy; Hill. 2 Jac. Regis. for seeing it was no felony, whereof the Common Law took Conusance, and the Stat. of 28. H. 8. did not alter the offence, but ordained a Tryal, and inflicted punishment; therefore it ought to be pardoned especially, or by words, which tantamount, and not by the general name of felony, and according to this Resolution, the delinquents were attainted and executed. Thus much of Piracy.

5. Burning of Houses.

Burning is a felony at the Common Law, committed by any that maliciously and voluntarily in the night or day, Co. 3. Inst. f. 66. burneth the house of another.

Out of which we may observe two circumstances.

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First; To make it felony, it must be done with malice and will; for if it be done by mischance, or negligence, it is no felony. But whether the Law doth sometime imply that the house was burnt maliciously, and voluntarily, may be a Quaere? It is answered, it does: As if one intend to burn the house of A. only, and not the house of B. and yet in the burning the the house of A. the house of B. is burnt, in this case the burning of the house of A, is felony, Co 3. Inst. f. 67. Plowd. Com. f. 475. because it proceeded of the malicious and voluntary burning of the house of A, and the event shall be coupled to the cause, which was voluntarily and malicious: And the rule is, Involuntarium ex voluntario ortum habens, moraliter pro voluntario habetur.

Secondly; to make it felony, it must be the house of another, and not his own house: As for example:

One W. Holmes was indicted in London, for that he being possessed of an house in London, in Throgmorton street, Cro. 3. part. Holmes's Case. f. 377. in such a ward for six years, the remainder to Is. for three years, the Reversion to the Corporation of Haberdashers in fee. He vi & armis felouice, voluntarie, & malitiose igne combussit, &c. his own house: Upon this being arraigned at New-Gate, he was found guilty: add before Judgment this Indictment was removed by Certiorari into the Kings Bench, and being argued by Grimston, that it was not felony.

By Richardson, Jones, and Berkcley it was [Page 74]held that it was not felony to burn an house, whereof he is in possession, by vertue of a Lease for years: For they said, that burning of houses is not felony, unless that they were aedes alienae: And therefore Britton, and Bracton mention that is felony to burn the house of another: and the Year-Books and Co. lib. 11. Powlters Case, which say, that burning of houses generally are to be intended de aedibus alienis, & de non propriis: And although the Indictment be ea intentione ad comburendum felonice, &c. yet intent only without fact, is not felony: Also Barkeley and Jones held, that it cannot be said vi & armis, when it is in his possession; and therefore it was resolved that it was not felony, wherefore he was discharged thereof: But because it was an exorbitant offence, and found, they ordered that he should be fined 500. pounds to the King, and imprisoned during the Kings pleasure, and should stand upon the Pillory, with a paper upon his head, signifying the offence at Westminster, and at Cheap-side, upon the Market day, and where he committed the offence, and should be bound with good sureties to his good behaviour during life.

Note, 22 & 23. Car. 2. nunc Regis. there is a late Act made, to prevent the malicious burning of houses, Stackes of Corn and Hay, and killing and maiming of Cattel.

Touching burning, the Civil Law speaks thus:

Qui aedes acervumque frumenti juxta domum D. 47.9.9. [Page 75] positum combusserit, vinctus verberatus, igni necari jubetur, si modo sciens prudensque id commiserit. Si vero casu, id est, negligentia, aut noxiam sarcire jubetur, aut si minus idoneus sit, levius castigatur.

Si fortuito incendium factum sit, D. 49.9.11. venia indiget, uisi tam lata culpa fuit, ut Luxuriae, aut dolo sit proxima: Hitherto of criminal Pleas, that are perpetrated against the King and Common-wealth mediately, but principaliter in singulas personas.

I proceed to those that immediately touch the King, and his Crown; and they are:

1. High Treason. Crimen laesae Majestatis.

Stamford telleth us that the King is the Preserver, nourisher and defender of all his People, and that by his great travel, study and labour, his People only enjoy their Lives, Lands and Goods: And as the body of Man cannot live without a Head, but will fall to the ground, so the Realm cannot be governed without a Head, which is the King. Agreable to that of Seneca, Ille est vinculum, per quod Respublica cohaeret, &c. And therefore we his loving Subjects, are obliged to watch for that him, wakes for us; And, primum virtutis opus est, servare servantem caetera.

If so, what an abominable thing must it be, to be a violator of Kingly Majesty: Crime de Masesty (sayes the Mirror) est un peche horrible fait al Roy, &c. Tacitus calls Crimen Majestatis, vinculum, & necessitatem silendi; Omnium acousationum complementum: [Page 76]And in the Civil Law, it is said thus: D. 48.4.1. Proximum Sacrilegio crimen est, quod Majestatis dicitur. id est, crimini quo divina Majestas pulsatur.

High Treason does extend to several parts or kinds, viz. Death, to Violation, to Leaving of Warr, to Adhering to the Kings Enemies, to Counterfeiting the Great Seal, Privy Seal, and the Kings Coyn, to the bringing into this Realm counterfeit Money to the similitude of His Majesties Coyn, of these several parts in their order.

1. Touching Death.

1. To compass or imagine the death of the King, is Crimen laesae Majestatis, as appears by Britton and Fleta.

Briiton thus: Grand Treason est a compasser nostre mort.

Fleta hath this words: Si quis mortem Regis ausu temerario machinatus fuerit, &c. quamvis voluntatem non perduxit ad effectum.

To depose the King, or to take the King by force and strong hand, and to imprison him untill he hath yeilded to certain demands; this is a sufficient overt Act, to prove the compassing and imagination of the death of the King: for this is upon the matter to make the King subject, and to despoil him of his Kingly Office of Royal Government. And so it was resolved by all the Judges of England Hill. 1. Jac. Regis, in [Page 79]the Case of the Lord Cobham, Lord Gray, Watson and Clarke Seminary Priests.

So if divers conspire the death of the King, and the manner how, and thereupon provide weapons, powder, poyson, assay harness, send Letters, &c. or the like for execution of the Conspiracy, this is a sufficient overt act to prove the compassing and imagination of the Kings death.

If any man shall attempt to make himself so strong, that the King shall not be able to resist him, he is guilty of Rebellion. In the like manner, the Law interpreteth that in every Rebellion there is a machination against the life of the King and his deposing: For a Rebel will not suffer that King to live or reign, which may afterwards punish or revenge such the treason or Rebellion. These things are confirmed:

1. by the Imperial or Civil Law, Vide D. 48.4.1. ad Legem Juliam Majestatis. whereby to do any thing against the safety of the Prince is holden to be treason.

2. By the force of reason, because it cannot be that which hath once given Law to the King, should ever permit that the King should recover his former Authority, or live, least at any time he should recover it.

3. By examplss drawn out of our English History, as of Edward the Second, and Richard the Second, who being by force of Armes gotten by Subjects into their power, were not long after deposed also, and made away.

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The Civil Law; Quamvis regulariter ratione solius consensus nemo ad poenam obligatur; sed secuto demum actu: Aliud tamen obtinet in crimine in Principe, in quo voluntas, punitur; sed intellige talem voluntatem, cum qua conjunctum est initium facti, i. e. factio, vel conjuratio: Sola enim & nuda voluntas puniri nequit.

Note, that there is difference taken by our Law between felony and High treason; for it is not felony, unless there be some act done: Non efficit conatus, nisi sequatur effectus: But if one compass or imagine the death of the King, who is the Head of the Common-wealth, and declares his compassing or imagination, by words or Writing, it is High treason: Doct. and Stud. lib. 2. cap. 41. Co. 3. Inst. f. 5.12. H. 8.36. b. 13. H. 8.13. Bendlones Rep. Smith v. Spurle.

And therefore these following words were adjudged High treason, viz.

If the King dye without Issue Male, that he would be King: and also the party arraigned spake, that if the King should commit him to Prison, that he would kill him with his dagger.

So one Crobagan, an Irish man was arraigned of Treason; for that he being the Kings Subject at Lisbone in Spain, Cro. 3. part. Crohagans Case. f. 332. used these words, I will kill the King ( innuendo Dominum Carolum Regem Angliae) if I may come unto him; and that in August 9. Car. Regis, he came into England for the same purpose. To this he pleaded Not-guilty, [Page 79]and was tryed by a Jury of Middlesex, and it was directly proved by two Merchants, that he spake these words at Lisbone in Spain, in great heat of speech, with Captain Baske, and added these words, Because he is an Heretick; and for that his traiterous intent and the imagination of his heart, is declared by these words, it was held High treason by the course of the Common Law, and within the express words of the Statute of 25. E. 3. And he coming into England, and being arrrested by Warrant for this cause, most insolently put his finger into his mouth, and scornfully pulling it out, said, I care not this for your King, &c. all which speeches and actions, though he now denyed, the Jury found him guilty, whereupon he had Judgment accordingly. He confessed that he was a Dominican Fryer, and made Priest in Spain. And although this, and his returning into England, to seduce the Liege-People, were Treason by the Stat. of 23. Eliz. yet the Kings Atturney said, he would not proceed against him for that cause, but upon the Stat. of 25. E. 3. of Treason.

So one Henry Challercomb was indicted of Treason for words, and was found guilty, and executed.

So John Williams was also indicted, found guilty, and executed, for writing a Treasonable Book, called Balaam Case. These two last Presidents you may see cited in Pyne's Case, in Crokes third part of his Reports.

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It is commonly said, That bare words may make an Heretick, but not a Traitor, without an overt Act: And therefore to make compassing by bare words or sayings, High treason, it must be by some particular Statute, such were the Statutes of 26. H. 8. c. 13. 1. E. 6. c. 13.1. & 2. Phil. and Mar. c. 9.1. Eliz. c. 6.13. Eliz. c. 1. & 14. Eliz: c. 1. but all these are either repealed or expired: Co. 3 Inst. f. 140. yet compassings or imaginations against the King by word, without an overt Act, is an High misprision.

Note, that there is a Law made for the Preservation of His now Majestie's Person and Government, 13. Car. II. Reg. c. 1. against Treasonable and seditious practises (during his natural life, which God long continue) proceeding from Printing, Writing, Preaching, or malicious and advised speaking.

Note further, that to calculate or seek to know by setting of a figure, or Witchcraft, how long the King shall Reign or live, Co. 3. Inst. f. 6. is no Treason, for it is no compassing or the imagination of the death of the King, within the Stat. of 25. E. 3. And this appeareth by the Judgment of the Parliament in 23. Eliz. whereby this offence was made felony, during the life of Q. Elizabeth, which before was punishable by fine and imprisonment.

But Scipio Gentilis in his first Book De conjuratione sayes; De vita Principis inquirere praesertim per Astrologos capitale esse: neque hoc solum, sed etiam de ea dubitare, vel desperare [Page 81]pro crimine Majestatis bahitum esse; si ea desperatio indiciis esset aliquibus patefacta.

Thus much of the King himself.

If any do compass or imagine the death of the Queen Confort, or Prince, 25. E. 3. c. 2. De proditionibus. (the Kings Son being Heir apparent to the Crown for the time being) and declare it by some overt Act, the very intent is Treason, as in case of the King himself.

If a man slay the Chancellor, Treasurer, or the Kings Justices of the one Bench, or the other, Justices in Eyre, or Justices of Assize, and all other Justices assigned to hear and determine, 25. E. 3. c. 2. being in their places doing their Offices: And the reason wherefore it is Treason in these Cases is, because sitting judicially in their places (that is in the Kings Courts) and doing their Office in administration of Justice, they represent the Kings Person, who by his Oath is bound that the same be done.

2. Touching violation, or Carnal knowledge.

To violate or to carnally know the Kings Companion, 25. E. 3. c. 2. or the Kings eldest Daughter unmarried, or the Wife of the Kings eldest Son, and Heir apparent, is High treason.

The reason that the eldest Daughter only is mentioned in Stat. of 25. E. 3. is for that for defaut of Issue Male, she only is inheritable to Crown.

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3. Touching War.

To levy War against our Lord the King is High treason: 25. E. 3. c. 2. This was so by the Common Law, for no Subject can levy War within the Realm without Authority from the King; for to him it only belongeth. F. N. B. 113. Co. lib. 2. Wisemans Case f. 15. b. In the Codes of Justinian is extant the Constitution of Valentinian and Valens; Nulli prorsus nobis insciis, atque inconsultis quorumlibet Armorum movendorum copia tribuatur: Huc pertinet illud Augustius: Ordo naturalis mortalium paci accommodatus hoc poscit, ut suscipiendi Belli auctoritas, atque Consilium penes Principes sit.

If any levy War to expulse Strangers, to deliver men out of Prison, to remove Counsellors, Co. 3. Inst. f. 9. or against any Statute, or to any other end, pretending Reformation, this is levying of War against the King, because they take upon them Royal Authority, which is against the King.

So if any with Strength and Weapons, invasive and defensive doth hold and defend a Castle or Fort, Co. 3. Inst. f. 10. against the King and his Power, this is levying of War against the King within the Statute of 25. E. 3.

One Thomas Bensted was indicted and arraigned before special Commissioners of Oyer and Terminer in Southwark, Cro. 3. part. Bensteds Cafe. f. 583. wherem all the Justices and Barons were in Commission, and present; at which time upon Conference [Page 83]with all the Justices, it was resolved;

First, that going to Lambeth House in warlike manner, to surprize the Arch-Bishop, who was a Privy Counsellor, (it being with Drums, and a multitude, as the Indictment was, to the number of 300. persons) was Treason. And,

Secondly, It was resolved by ten of the said Justices seriatim, that the breaking of a Prison, wherein Traitors be in Durance, and causing them to escape, was Treason, although the Party did not know that there was any Traitors three, upon the Stat. of 1, H. 6. c. 5.

And so to break a Prison, whereby Felons escape, is felony, without knowing them to be imprisoned for such offence.

Note, A Compassing or Conspiracy to levy War, is no Treason; for there must be a levying of War de facto.

4. Touching Adhesion to the Kings Enemies.

If a man be adherent to the Kings Enemies in his Realm, 25. E. 3. c. 2. giving to them aid and comfort in the Realm, or elsewhere, it is High treason.

Having given you the words of the Stat. 25. E. 3. I propose these Queries:

Whether the delivery of a Castle or Fort to an Enemy be an Adhering to the Kings Enemy? Qu. 1

To deliver or surrender the Kings Castles Resp. [Page 84]or Fort by the Kings Captain thereof to the Kings Enemy within the Realm, or without for Reward, &c. is an Adhering to the Kings Enemy, and consequently Treason declared by the Act of 25. E. 3:

Whether the Aiding or succouring of a Rebel beyond Sea be Treason? Qu. 1

A, Resp. is out of the Realm at the time of a rebellion within England, and one of the Rebels doth fly out of the Ream, Co. 3. Inst. f. 10. 13. Eliz. Dyer f. 298. whom A, knowing his treason, doth aid or succour, this is no Treason in A, by the Stat. of 25. E. 3. because the Traitor is no enemy.

Ʋtrum Exteri, Qu. 2 qui cum Subditis contra Principem militant, Rebelles sint habendi?

An Enemy coming in open hostility into England, Resp. and taken, shall be either executed by Marshal Law or ransomed; Dyer 4. Mar. f. 145. a. Co. Lib. 7. Calevins Case. for he cannot be indicted of Treason, for that he was never within the Protection or Ligeance of the King, and the Indictment of Treason saith, Contra Ligeantiam suam debitam.

But if a Subject joyn with a Foreign Enemy, and come into England with him, he shall not be taken prisoner here, 13. Eliz. Dyer f. 298. and ransomed or proceeded with as an Enemy shall, but he shall be taken as a Traitor to the King.

Whether an English Man born consulting with a Foreign Prince, to invade his Country, may be charged with High treason?

A Consultation was had concerning John Story Doctor of Law, Cambdens Eliz. f. 144 & 145. An. 1572. the Duke of Alva's Searcher, whether he, being an English Man born, who in Brabant had consulted with a [Page 85]Foreign Princ eabout invading his Countrey, and had shewed the means of Invasion, might have been charged with High treason? The skilfullest Lawyer affirmed that he might.

Whereupon he was arraigned, and being to be charged with Treason, for that (amongst other things) he had shewed to the Duke of Alva's Secretary the means to invade Eugland, raise Ireland into rebellion, and excite the Scots to bteak into England; all at once: He refused to submit himself to Tryal, and to the Laws of England, and affirmed that the Judges had no power over him, for that he was not a Subject sworn to the Queen of England, but to the King of Spain. But he was condemned according to the ordinary forme of Nihil dicit, Co. Lit. f. 129. a. 13. Eliz. Dyer 300. Doctor Story's Case. Co. lib. 7. Calvin's Case. Cod. 10.38.4. and suffered the death of a Traitor; for that no Man can shake off his Countrey wherein he is born, nor abjure his native saile, or his Prince at his pleasure; Nemo Patriam in qua natus est, exuere, nec Ligeantiae debitum ejurare possit. With this Law doth concurre the Civil Law: Origine propria neminem posse voluntate sua eximere manifestum est.

5. Touching Fausonnery. Crimen falfi.

If a Man counterfeit the Kings Great or Privy Seale, or his Money, it is High treason.

All antient Authors agree that this was High treason by the Common Law (as Braction, Britton, Fleta, and the Mirrour. 25. E. 3. c. 2.

The Forging of the Kings Coyn is High treason, without utterance of it; for by the [Page 86]Act of 25. E. 3. the Counterfeiting is made High treason.

One Morgan and two others were indicted for Counterfeiting twenty Shilling Pieces of the Kings Coyn; Cro. 3: part. Morgans Case 383. and Morgan for uttering those Pieces to the Kings Subjects, knowing them to be counterfeit; and being there. upon arraigned, he pleaded Not guilty. And evidence being pregnant against Morgan, he was found guilty, and the others were acquitted: And Judgment given that he should be drawn and hang'd; but not to be quartered, according to the opinion of Stamford f. 182.

Note, that by the Stat. of 5. Eliz. to clip, wash, 5. El. c. 11. round, or file, for wicked lucre and gain is declared High treason. So by the Statute of 18. Eliz. 'tis enacted, that diminishing, 18. E. c. 1. scaling or lighting of the Kings Coyn within this Realm, is High treason.

Touching Money, the Civil Law speaks thus:

Qui falsam monetam percusserint, si id totum formare noluerunt, suffragio justae paenitentiae absolvuntur. D. 48.10.19. De falsa Meneta. Falsa monetadeprehenditur ex materia, pondere, & formaadulterina, Gothofredus.

Quicunque Nummos aureos partim raserit, partim tinxerit, vel finxerit: si quidem liberi sunt, ad bestias dari: si servi, summe supplicio affici debent. D. 48.10.8.

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6, and last: Bringing into the Realm Counterfeit Coyn.

If a Man bring false Money into this Realm counterfeit to the Money of England, knowing the Money to be false, to Merchandise or make payment, in deceit of our Soveraign Lord the King, and of his People, it is High treason.

But note, that the uttering of false Money in England, though the Person know it to be false and counterfeit to the Likeness of the Coyn of England, is no Treason within the Statute of 25. E. 3. unless he brought it from a Foreign Nation; for the words of the Statute are, Si Home apport faux Money en cest Realm.

Having related the several parts or kinds of Treason, within the Statute of 25. E. 3. I shall add these few Queries touching High treason, and so conclude.

Whether a mad Man may be guilty of High treason. Qu. 1

The antient Law was, Resp. that if a mad Man had killed, or offered to kill the King, it was holden for Treason; Co. lib. 4. f. 124 b. Beverleys Case. and so it appears by King Alfreds Law, before the Conquest, and in Beverleys Case; for the King is Caput & Salus Reipublicae, & a Capite bona valetudo transit in omnes, and for this cause Kings Persons are so Sacred, that none may offer them violence, without being guilty of High treason; Et pereat unus ne pereant omnes.

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But now by the Statute of 25. E. 3. and by force of the words, Fait compasser ou imaginer la mort; he that is Non compos mentis, Co. 3. Inst. f. 6. Co. Lit. 247. b. and totally deprived of all compassings and imaginations, cannot commit High treason, by compassing or imagining the death of the King: for furiosus solo f [...]rore punitur; and furor in the Civil Law is continuata mentis alienatio, qua quis omni intellectu caret.

If a Man commit Treason, and confesseth the same, or be thereof otherwise convict, if afterwards he become de non sanae memoriae, he shall not be called to answer; or if after Judgment he become de non sanae memoriae, Co. 3. Inst. f. 4. Lib. 4. Beverleyes Case. he shall not be executed; for it cannot be example to others.

The Civil Law:

Culpam non admittit, qui suae me [...]ttis non est.

Si per furorem aliquis parentem occiderit, D. 48.9.9.2. impunitus erit, Divi Fratres rescripserunt super eo, qui per furorem matrem necaverat. Nam sufficere, furore ipso eum puniri?

Whether an Alien residing here, Qu. 2 can commit High treason?

All Aliens that are within the Realm of England, Resp. Co. Litt. 192. a. Dyer 144. Co. lib. 7. Calvins Case. Co. 3. Inst. f 4 & 5. and whose Soveraign are in amity with the King of England, are within the protection of the King, and do owe a Local or Topical obedience to the King, are within the Act of 25. E. 3. and if they commit Treason against the King, they shall be punished as Traitours; and the Indictment shall say contra Legeantiae debitum.

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Whether the killing of a Foreign Ambassadour residing here, be High treason? Qu. 3

Albeit the malicious killing of an Ambassabour be justi belli causa, Resp. and contra jus Gentium, yet the killing of him is no Treason, within the Stat. of 25. E. 3. until itl be so declared by Parliament, as it was in the Case of Kerby and Algere, Co. 3. Inst. f. 8. who were attainted for the killing of John Imperial, Ambassadour from the State of Genoa; but that Declaration was taken away by the Statnte of 1. Mar.

Whether an Ambassadour, Qu. 4 which raiseth Rebellion ahainst the Prince to whom he is sent, may enjoy the priviledge of an Ambassadour, and be not subject to punishment as an Enemy?

Such an Ambassadour hath by the Law of Nations, and by the Civil Law of the Romans, Resp. forfeited all the Priviledges of an Ambassadour, and is subject to punishment.

If a Foreign Ambassadour, sayes Coke, committeth here in our Realm any crime, Hill. 14. Eliz. The Bishop of Rosles Case. Co. 4. Inst. f. 153. Bulstrodes Reports. 3d part. The King v. March. which is contra jus Gentium, as Treason, Felony, Adultery, or any other crime which is against the Law of Nations, he looseth the Priviledg and Dignity of an Ambassadour, as unworthy of so high a Placc, and may be punished here as any other private Alien, and not to be remanded to his Soveraign, but of courtesy.

But if any thing be malum prohibitum, by any Act of Parliament, Private Law or Custom of the Realm, which is not malum in se jure Gentium, nor eontra jus Gentium, an [Page 90]Embassadour residing here shall not be bound by any of them: but otherwise it is of the Subjects of either Kingdom, &c. And the reason why private Aliens are bound by our Acts of Parliament, Lib. 2. c. 2. nu. 5. De jure belli ac Pacis. Private Laws and Customs, is given by the learned Grotius, viz. Quia ad gubernationem Populi moraliter necessarium est, ut qui ei vel ad tempus se admiscent, quod fit intrando territorium, ij conformes reddant ejus Populi institutis.

Whether a Foreign Prince, Qu. 5 by his dwelling and residing here, can commit Treason?

When a Foreign Prince comes with leave into England, Resp. he subjects himself under the Protection of the King of England, and as by well doing he enjoyes the benefit of the Laws, so by ill doing he is subject to the Equity thereof, according to that saying of the Lawers, He deserveth not the benefit of the Law, which offendeth against the Law. Otherwise better were the condition of a Foreign Prince offending in another Princes Kingdom, than his that reigneth well: He is thought also to be a Subject, though not originary yet temporary, because two absolute Princes in respect of Royal Authority, cannot be in one Kingdom at once; and therefore it is a received opinion of the learned in the Laws, A King without his own Dominions (except it be in an Expedition of War) is but a private Man; and consequently can neither confer, nor exercise Royalties.

Moreover it is said, that such a Prince by his offence looseth merum Imperium, his meer [Page 91]and absolute Soveraignty, and that such are subject by their dwelling only and place of abode, might commit Treason, and that a Prince hath power or Jurisdict. over another Prince that is his equal as often as any hath subjected himself under the Judgment of his Equal either by express words or Covert, Contract, or by offending within the Jurisdiction of his Equal.

Vide Cambdens Eliz. in 29. year of her Reign, touching the Queen of Scots.

2. Misprision of Treason.

Touching Misprision, 4 things are to be principally observed; The Etymology of the word, its Description, its Division, and the Punishment therefore.

1. The Etymology or Origination of the word:

Misprision, cometh of the French word Mespris, which properly signifieth neglect or contempt; for (mes) in Composition in the French signifieth mal, Co. 3. Inst. f. 36. as mis doth in the English Tongue: as mischance, for an ill chance, and so Misprise is ill apprehended or known.

2. Its Description:

In legal understanding Misprision of treason, is either when one knoweth, that another hath committed treason, and will not discover him to the King or to the Councel, or to any Magistrate, but doth conceal the same; it is when one hath committed some hainous offence under the degree of treason.

3. Its Division:

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Misprision of treason is twofold: 1. Passive, called Crimen omissionis, as in concealment, or not discovery of treason: And therefore by the Statute of 5. & E. 6. concealment or keeping secret of any High treason, is declared only Misprision of Treason.

As for example: 13. El. c. 2. It is Misprision of High treason in concealing of a Bull from the Pope of Rome.

So the receiving of one that hath counterfeited the Kings Coyn, Dyer f. 296 Coyners Case. and comforting of him, knowing him to have counterfeited the King Coyn, is but a Misprision.

But by the Common Law, concealment of High treason, was Treason, as appeareth in the Case of the Lord Scrope anno 3. H. 5, and by Bracton lib. 3. f. 118. b, & 119. a.

And with our Common Law, the words of Isocrates to Nicooles are agreable; viz. Eadem poena digni sunt supprimentes hujusmodi facinus, qua facinorosi.

2. Active, called Crimen commissionis, as in committing some heinous offence, under the degree of Treason; 37. H. 8. Br. Tit. Treason. as when one fixes an old Seale of a Patent to a new Patent of Non-Residence, this is holden to be a Misprision of Treason only, for it is an abuse of the great Seale, and not counterfeiting of it.

So if a man know Money to be counterfeit, and bring the same out of Ireland hither into England, Co. 3. Inst. f. 140. and utter it in payment, this is but a Misprision, and no Treason.

So the compassings or imaginations against the King by word, without an overt Act, is a High Misprision.

[Page 93]4. The punishment of this offence.

In all Cases of Misprision of Treason, the party offendour shall forfeit his Goods and Dutie for ever, and the profits of his Lands for terme of his life, and to be imprisoned during life.

From which punishment if any will save himself, that knoweth of any High treason, he ought with as much speed as conveniently he may, to reveal the same to the King, or some of his Privy Councel, or any other Magisirate.

Note, that in every Treason or felony, is included Misprision, and where any hath committed Treason or felony, the King may cause the same to be indicted, and arraigned, but of Misprision only, if he will,

3. Robbing the Kings Treasure. Crimen peculatus.

The Robbing the King of his Treasure, Co. 3. Inst. f. 112. Co. litt. 90. b. 131. b. or Money, is accounted Damnum inaestimabile; for the Kings Treasure is the sinew of War, and the honour and safety of the King in time of Peace.

The Civil Law doth accord with our Law in this point: Pecuniae nervus Reipublicae, seu belli. Cur ita? Imperium sine vectigalibus nullo modo esse potest. Cicero: Militares expensae, & Hostium Incursiones multa regent diligentia, & non possunt citra pecuniam haec agi. N. 8.2.10.2.

Fourscore and one persons, (whereof the Abbot of Westminster and 48 of his Monks were part) brake into the Receipt, Co. 4. Inst. f. 112. and feloniously [Page 94]robbed the King of a hundred thousand pounds: All these fourscore and one were indicted of this felony, and committed to the Tower of London, &c. and this was the occasion of the new building of both parts of the Exchequer, which were before of antient building, and weak.

The punishment of this crime in the Civil Law, is this:

Peculatus poena aquae & ignis interdictionem, in quam hodie successit deportatio, continet. Porro qui in eum statum deducitur, sicut omnia pristina jura, ita & bona amittit.

4. Bribery.

Bribery (sayes Coke) is a great Misprision, Crimen Repetundarum. when any man in Judicial place takes any Fee or Pension, Robe or Livery, Gift, Reward, or Brocage of any person that hath to do before him any way, for doing his Office, or by colour of his Office, but of the King only, unless it be of meat, and drink, and that of small value, upon divers and grevious punishments.

Having given you a description of Bribery, I propose these Queries with Resolutions upon them; and then shew what the Civil Law saith touching Bribery, and Reward.

Whether Bribery can be committed, Quaest. although there be no suit depending in foro contentioso?

Bribery may be committed not only when a Suit dependeth in foro contentioso, Resp. but also [Page 95]when any in Judicial place doth any thing, virtute or colore Officii, though there be no Suit at all.

For example, Co. 3. Inst. f. 148. if the Lord Treasurer for any gift or brocage, shall make any Customer, Controller, or any Officer, or Minister of the King, this is Bribery, for he ought to take nothing in that Case, Laws made contra Ambitus. by the Statutes of 12. R. 2. c 2.5. E. 6.5.6. Co. Litt. f. 234. a. Co. 3. Inst. f. 154. Hobarts Reports, Roy v. Bishop of Norwich f. 75. but that he make all such Officers, and Ministers of the best and most lawfull Men, and sufficient for their estimation and knowledg. These Laws aforementioned, made contra crimen Ambitus are worthy to be known by all; but more worthy to be put in execution, for they prevent Bribery and extortion; They that buy, will sell.

Whether this offence of Bribery can be perpetrated, Qu. 2. by one that hath a Judicial place in the Ecclesiastical Court?

The Statute of 5 E. 6. c. 16. Resp. doth extend as well to Ecclesiastical Office as temporal, which concern the Administration and execution of Justice, Co 3. Inst. 148. Cro. 2. part. Trevons Case. f. 269. and therefore any Chief Judicial Officer Ecclesiastical, taking any thing virtute or colore Officii, for any Office Ministerial or Judicial, is guilty of Bribery.

Touching Gifts and Bribery, take notice what the Civil Law sayes:

Non in totum Xeniis abstinere debebit Proconsul, sed modum adjicere, 1. De Xeniis. ut neque morose in tetum abstineat, neque avare modum Xeniorum [Page 94]excedat, quam rem Divus Severus, & Imperator Antonius elegantissime epistola sunt moderati, D. 4.16.6.3. cujus epistolae verba haec sunt: Quantum ad Xenia pertinet, Audi quid sentimus. Vetus proverbium est, neque omnia, neque quovis tempore, neque ab omnibus. Nam valde inhumanum est, a nemine accipere, sed passim vilissimum est, & omnia avarissimum.

Imo non est inhumanum. Nam & munera excoecant oculos sapientum, ac pervertunt verba Justorum: verum hic agitur (saies Gothofre. dus) de muneribus quae dantur Proconsuli, ut hospiti, non ut Judici.

Et hic aperte Xenia: & ut appellat quoque hic Jurisconsultus, Xeniola, distinguntur a dono & munere, seu munerum qualitate: Aliud ii est munus, aliud Xenion & Xeniolon.

Lege Julia repetundarum tenetur, 2. De Repetundis. D. 48.11.3. D. 48.11.9. qui cum aliquam potestatem haberet, pecuniam ob judicandum; decernendumque acceperit.

Qui munus publice mandatum, accepta pecunia, rumperunt, crimine repetundarum postulantur.

5. Extortion.

Extortion is a Misprision by wresting, or unlawfully taking by any Officer by Colour of his Office, any money or valuable thing of or from any Man, either that is not due, or more then is, or before it be due, Quod non est debitum, Co. Litt. 368. b. vel quod est ultra debitum, vel ante tempus, quod est debitum.

Of this crime it is said, that in no other [Page 95]than Robbery; and another saith, that it is more odious than Robbery; Co. Lit. 368. b. for Robbery is apparent, and hath a face of a crime, but extortion puts on the vizor of vertue, for expedition of Justice and the like, and it is ever accompany'd with that grevious sin of perjury; we call it in Latin Crimen expilationis, seu concussionis.

But the Quaere may be whether Extortion and Exaction are all one? It is answered, They are not, for there is this difference taken between Exaction and Extortion: Extortion is where an Officer demandeth and wresteth a greater summe or reward, than his just Fee: And Exaction is where an Officer or other Man demandeth and wresteth a Fee or reward, where no Fee or reward is due at all.

6. Striking in the Kings Courts, where he resides personally, or by Representation.

If any Man in Westminster Hall, Co. 3. Inst. f. 140. or in any other Place, sitting the Courts of Chancery, the Kings Bench, the Common Bench, the Exchequer, or before Justices of Assize, or Justices of Oyer, & Terminer, shall draw a weapon upon a Judge; or Justice, though he strike not, this is a great Misprision, for the which he shall loss his right hand, 12. E. 3.13. and forfeit his Lands and goods, and his Body to perpetual imprisonment; The reason is because it tendeth ad impedimentum Legis terre: So it is if in Westminster Hall, or any [Page 94] [...] [Page 95] [...] [Page 98]other Place, sitting the said Courts there, or before Justices of Assize, or Oyer and Terminer, and within the view of the same, a Man doth strike a Jury, 3. Eliz. Dyer 188. or any other with weapon, hand, shoulder, elbow, or foot, he shall have the like punishment; but in that case, if he make an assault, and strike not, the offender shall not have the like punishment.

One Peter Cary was indicted for drawing his sword in Aula Westm. sedentibus Curiis, Cro. 1. part. Cary's Case 405. and in disturbing the Sheriff, in making an Arrest upon one T. by force of a Bill of Middlesex: and being arraigned and found guilty, had Judgment of perpetual Imprisonment, and to pay one hundred pounds to the Queen: And note, that upon the evidence it appeared to be upon the stairs, ascending the Court of Wards, and so out of the view of the Courts: But Popham said, although it were out of the view of the Courts, yet if the Indictment had been as it ought to have been: viz coram Domina Regina, the Judgment should have been, that his right hand should have been cut off, and that he should forfeit all his Lands and Chattels, and have perpetual Imprisonment.

S ^r William Waller was indicted, for that he in the Palace of Westminster neer the Great Hall, Cro. 3. part. Sr. William Wallers Case f. 373 & 374. the Justices in the Kings Bench, Chancery, and Common Bench, judicially sitting to hear Causes, made an assault, and affray upon Sr Thomas Reignolds, and beat him, in disturbance of the Law, and contempt of the [Page 66]King, &c. and upon this being arraigned, and found guilty, because the Indictment was not, that he did it in presence of the Justices, nor in the presence of the King, all the Judges agreed that the Judgment of cutting off his hand should not be given; and so seriatim they delivered their opinions: But because this offence was in the Palace, neer the Hall door, whereby tumults might have been made, and because it was found sitting all the Courts, and in disturbance of Justice and Law, and in contempt of the King, the Court awarded, that he should be imprisoned for the said offence during the Kings pleasure, and should pay 1000 pounds fine.

Thus much where the King is present by Representation.

If any strikes in the Kings Palace, 33. H. 8. c. 12. where the Kings Royal Person resideth, he shall not lose his right hand, unless he draw blood; but if he draw blood, then his right hand shall be strucken off, he perpetually imprisoned, and fined, and ransomed.

By what hath been said, a Man may perceive a great differenee between a blow, or stroke in, or before the said Courts of Justice, where the King is representatively present, and the Kings Courts, where his Royal Person resideth; for in the Kings House, blood must be drawn, which needeth not in, or before the Courts of Justice, when the Judges are doing of that which to Justice appertaineth; and the reason is, Quia Justitia firmatur Solium.

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7. Routs.

A Rout is when People do assemble themselves together, and after do proceed or rid, or go forth, or do move by the instigation of one or more, who is their Leader: This is called a Rout, because they do move and proceed in Routs and members.

Also where many assemble themselves together upon their own common Quarrel, and brawles, as if the Inhabitants of a Town will gather themselves together, to break hedges, pales, or such like, to have Common there, or to beat another, that hath done to them a common displeasure, Co. 3. Inst. 176. Lamb. lib. 2. c. 5. or such like, that is a Rout, and against the Law, although they have not done, or put in execution their mischievous intent, if so be they do go, ride, or move forward after their first meeting.

Note, that there is diversity between committing of a great Rout, or the like, and Levying of War, for example, as if three or four, or more do rise to burn or put down an Inclosure in Dale, Co. 3 Inst. f. 9 & 10. which the Lord of the Mannour of Dale hath made there in that particular place, this or the like is a Rout, a Riot, or an unlawfull Affembly, and no Treason,

But if they have risen of purpose to alter Religion established within the Realm, or Laws, or to go from Town to Town generally, and to cast down Enclosures, this [Page 99]is a Levying of War (though there be no great number of Conspiratours) within the perview of the Statute of 25. E. 3. c. 2. because the Pretence is publique and general, and not private in particular. As it was resolved, Pasch. 39. Eliz. by all the Judges of England, in the case of Richard Bradshaw Miller, Robert Burton, — Mason, and others of Oxfordshire.

8. Riot.

Riot (in Latine Riotum) cometh of the French word Rioter, id est, Rixari; Co. 3. Inst. f. 176. and in the Common Law signifieth when three or more do an unlawful Act, as to beat any Man, or to hunt in his Park, chase or warren, or to enter or to take possession of another Mans Land, or to cut or destroy his corn, grasse or other profit, &c.

By the Statute of 17. R. 2. and 13. H 4. 17. R. 2. c. 8.13. H: 4. c. 7. the Justices of Peace, and Sheriff are to arrest those that commit Riot, and to record that which they find done in their presence against the Law.

Each Man that is able, 2. H. 5.8. ought to help to repress Riots, upon pain of Imprisonment, and to make fine to the King.

Evans, and Cottington and 7. others, were indicted for a Grand Riot, that they with others there named, to the number of 1000. persons, made a Rescous, and assault upon Henry Smith a Baylif, who by virtue of a Warrant upon a Bill of Middlesex, against [Page 102] William Cleer, had arrested him, and was carrying him to Prison, and they procured him to escape. The Arrest was at Charing Cross in the Parish of St. Martins; aad after the Arrest, they assaulted the Bayliffes, and beat them; and the Bayliffes putting the Prisoner into an house for safe keeping against the tumult, they assaulted the house; and notwithstanding a Justice of Peace, assisted with three Constables, made proclamation for keeping the Peace, and for their departure, yet they continued their assault, breaking open the house, and with ladders taken from the Kings House of White-Hall, (where the King with His Court was resident) upon the 24. of March 13, Car. in the afternoon of the said day, made this Riot and Rescous, and carryed the Prisoner away through the Kings House, and caused him to escape. Upon this Indictment 9. of them being arrested, pleaded Not-guilty, and 4. of them viz. Evans, Cottington, Groom and Heatly being arraigned, were found guilty, and 5 of them were found Not-guilty, but against three of them was probable evidence, that they were aiding to this Riot and Rescous, but the Jury acquitted them; wherefore because it was so great a Riot, and offence, being committed so neer the Court, it was adjudged, that the said four persons, which were so convicted, should be committed to Prison, and every one of them should pay 500. pounds fine to the King: And that every of them should stand on the Pillory at Westminster, and Charing [Page 103]Cross, where the Riot was done; and that Thomas Groom, who was a Cobler, and entered into the house with a drawn sword, and a kettle upon his head, as an helmet to defend himself, should stand on the Pillory with a sword in his hand, and a kettle upon his head, and should be bound with good secuties for their good behaviour, before they should be delivered: And the three which were acquitted, against whom there was such probable evidence, were bound to find securities for their good behaviour.

Note, Co. 3. Inst. f. 176. An unlawful Assembly is when three or more assemble themselves together, to commit a Riot or Rout, and do it not.

One or more, sayes the Lord Coke, may commit a force; Co. Litt. 257, a. Co. 3. Inst. f. 176. three or more may commit an unlawful Assembly, a Riot, or a Rout: A multitude (as Some have said) must be ten, or more. Multitudinem decem faciunt. And so (said they) it is said, de grege hominum. But Coke tells us, that he could never read it restrained by the Common Law to any certain number, but left to the discretion of the Judges.

In the Civil Law thus: Decem homines populum, tres Collegium, Bartolus. duo Congregationem & quindecim turbam constituunt in Jure Civili, sed Jure in Communi Angliae tres turbam faciunt.

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9. Affraies, Single Combats, and Challenges, &c.

Single Combats, 1. Single combat. or Duels between any of the Kings Subjects of their own heads, and for private malice or displeasure, is prohibited by the Laws of this Realm; for in setled State governed by Law, no Man for any injury whatsoever ought to use private revenge; because it belongeth to the King, who is the Supream Magistrate, and Gods Lieutenant on Earth. And the Law herein is grounded upon the Law of God; Deut. 32.35. [...] 12.19. It is also against the Law of na [...] and Nations; for a Man to be Judge in [...] own proper Cause, especially in Duels, where fury, wrath, malice, and revenge are the rul [...] of the Judgment.

Hinc est, sayes one, qu [...]d Legum reperta est sa ra reverentia, ut nihil manu, nihil proprio ageretur impulsu. Quid enim a bellica confusione pax tranquilla distat, si per vim litigia terminantur?

But it may be objected, Object. that it is lawful vim vi repellere, therefore private revenge is lawful: The reason of the consequence is because by revenge force by force is repelled.

It is answered, Resp. That the antecedent is not simply and universally true: Vim vi repellere licet cum moderamine inculpatae tutelae, in casu ultimae, & indeclinabilis necessitatis, non semper & quocumque modo.

Note, that Duels are lawful, if they are [Page 103]warranted by publick Authority, such as heretofore our Tryals by batail, ad probandam veritatem litis; and such was the Duell betwixt David & Goliah, which was strucken by publick warrant and authority.

Vid. more of this in Grotius lib. 2. c. 1. nu. 15. & cap. 23. nu. 10.

Note further, that albeit upon the Single Combat (that proceeds not from publick authority) no death ensue, nor blood drawn, Affray. yet the very Combat for revenge is an Affray, and a great breach of the Kings Peace, an Affright and terrour to the Kings Subjects, and is to be punished by fine and Imprisonment, and to find sureties for their behaviour.

When any Affray is made by Single Combat, any stander by, that is no Officer, Co. 3. Inst. f. 178. may endeavour to part them, and prevent further danger, and the Law doth encourage them thereunto, for if they receive any harme by the Affrayours, they shall have their remedy by Law against them; and if the Affrayours receive any hurt by the endeavouring only to part them, the standers by may justify the same, and the Affrayours have no remedy by Law. 8. E. 2. Cor. 295.22. Ass. Pl. 56. But if either of the Parties be slain or wounded, or so striken as he falls down for dead, in that case the standers by ought to apprehend the Party so slaving, &c. or to endeavour the same by the Hue and Cry, or else for his escape they shall be fined, and Imprisoned. But if the Sheriff, Justice of Peace, Constable, or other Conservatour of the Peace [Page 106]do not part the Affrayours, for the preservation of the Kings Peace, and apprehend them being within his view, or do not his uttermost to part, and apprehend them, they may be imprisoned for their neglect thereof, for they may command others to assist them, and therefore the rule holdeth in them; qui non prohibet, 3. H. 7.10.6. Bedingseilds case. cum prohibere possit, in culpa est. And if any be commanded to assist them therein, and refuse or neglect the same, it is a contempt in them, to be punished by fine and Imprisonment.

The words Affray and Assault be indifferently used of most Men, and that also in some of our Book Cases; but yet (according to Lambards opinion) there wanteth not a just difference between them: For Affray is derived of the French (Effrayer) which signifieth to terrify or bring fear, which the Law understandeth to be a common wrong, and therefore is it enquirable in the Turn of the Sheriff, or in a Leete 4. H. 6.10, and 8. E. 4.5. otherwise it is of an Assault, as it seemeth by those very Books: yet may an Affray be without word, or blow given; as if a Man shall shew himself furnished with armes, or weapon, which is not usually worn and born, it will strike a fear into others that be not armed as he is: But an Assault, as it is fetched from another fountain, namely from the Latine Assultus, which denoteth a leaping (or flying) upon a Man: so can it not be performed without the offer of some hurtful blow, or at the least of some fearful speech. [Page 107]And therefore to strike at a Man (although he were neither hurt or hit, with the blow) was adjudged an Assault 22. Ass. Pl. 60. For this Assault doth always necessarily imply a hitting; and therefore in Trespass of Assault and Battery, a Man may be found guilty of the Assault, and yet be excused of the Battery. 40. E. 3.40, & 45. E. 3.24.

3. Challenges. Co. 3. Inst. f. 158. v. Hobarts Reports. Barrow. v. Llewillen f. 62. Hickes case 215.

If any Subject by word, Message, or Writing challenge another to fight with him, this is an offence before any combat be performed, and punishable by Law, and it is contra Pacem, Coronam, & Dignitatem Regis. For, prohibetur cum aliquid, prohibentur etiam media ad illud tendentia.

The means of such evills as well as the end are to be prevented.

10. Libells.

A Libel signifieth a criminous report of any Man cast abroad, be he Magistrate, or a private Person, or otherwise, unlawfully published in writing, and therefore for distinction sake it is called an Infamous Libel, or Pasquil.

It matters not whether the Libel be true or false, or whether the Party be of good fame or ill fame; for it inciteth all the same Family, Kindred, or Society to revenge, and so tendeth by consequence to the effusion of blood, and to the breach of the publick Peace, and therefore such Libelling, be it true or false, is punishable by our Law.

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It was resolved in the Star-Chamber 44. Eliz. Hallywoods Case, that if any find a Libel, and would preserve himself out of danger, if it be a private Man, the finder may either burn it, or presently deliver it to some Magistrate; but if it concern a Magistrate, or Publick Person, he ought to give it to the Magistrate.

One Jeffes was indicted for that he exhibited an infamous Libel, Cro. 3. part. Jeffes case f. 175. directed unto the King, against Sr Ed. Coke, late Chief-Justice of the Kings Bench, and against the said Court, for a Judgment given in the said Court, in the Case of Magdalen Colledge, affirming the said Judgment to be Treason, and calling him therein Traitour, perjured Judge, and scandalizing all the Professours of the Common Law, and containing much other scandalous matter: and fixed this Libel upon the great Gate at the entrance of Westminster Hall, and in divers other publick Places: And being upon this arraigned, prayed that Councel might be assigned, which was granted, and he had them, but would not be ruled to plead as they advised; but put in a scandalous plea, and insisting upon it, affirmed that he would not plead otherwise, whereupon it was adjudged, He should be committed to the Marshall, and that he should stand upon the Pillory at Westminster, and Cheapside with a Paper mentioning the offence; and with such Paper be brought to all the Courts at Westminster, and be continued in Prison until he made his submission in every [Page 107]Court, and that he should be bound with sureties to be of good behaviour during his life, and should pay a thousand pounds fine.

Adam de Ravensworth was indicted in the Kings Bench for the making a Libel in writing, in the French Tongue, Mich. 10. E. 3. Coram Rege Rot. 92. Ebor. against Richard of Snowshal, calling him therein Roy de Raveners, &c. wheupon he being arraigned, pleaded thereunto Not-guilty, and was found guilty.

So by what has been said, a Libeller or publisher of a Libel, committeth a publick offence, and may be indicted therefore.

The words of the Civil Law touching Libellers are these:

Injuria committitur; Just. 4.4.1. si quis ad infamiam alieujus Libellum, aut Carmen, aut Historiam scripserit, composuerit, ediderit, dolove malo fecerit, quo quid eorum fieret.

Si quis famosum Libellum sive domi, Cod. 9.36. De famosis Libellis. sive in publico, vel quocumque loco ignarus repererit: aut corrumpat priusquam alter inveniat, aut nulli confiteatur, inventum. Si vero non statim easdem Chartulas, vel corruperit, vel igni consumpserit, sed vim earum manifestaverit: sciat se quasi authorem hujusmodi delicti capitali sententiae subjugandum.

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11, and last, False Rumours; and slanderous news.

None shal report slanderous news whereby discord may arise between the King and his People, 3. El. c. 34. or Great Men of the Realm: And he that doth so shall be taken and kept in Prison, until he hath brought him into the Court, which was the first authors of the tale.

The penalty is the same for telling slanderous lies of the Great Men of the Realm. 2. R. 2. c. 5.

But by the 12. 12. R. 2. c. 12. R. 2. it is enacted, that when any such is taken and imprisoned, and cannot find him, by whom the Speech be moved, that he be punished by the advice of the Councel, notwithstanding the said Statutes.

Note, Inter Leges Alvaredi c. 28. the Law before the Conquest was, That the Author and Spreader of false Rumours amongst the People, had his tongue cut out, if he redeemed it not by the estimation of his head.

To conclude: It may easily and manifestly appear to all such as have been conversant in our Chronicles, how pernicious and dangeto this our Kingdom, unlawful Assemblies and false Rumours have been in all precedent Ages; yea, such as at the first were very small, and inconsiderable, and began upon very small occasions, yet not being repressed in time grew to such greatness and height, that they afterward put in hazard the State and Government of this Land: And therefore it is behoveful and good wisdom for all Magistrates, [Page 111]and Justices of Peace to endavour by all good means to quench the beginnings and first sparks of such offences, as knowing that for want of timely restraint, they may soon grow to like danger again. And the axiome in our Law is:

Interest Reipublicae, ut pax in Regno conservetur, quaecumque paci adversentur provide declinentur: i. e,

It it most necessary in a Common-wealth to provide, that tranquility and peace be continued in the Realm, and that all things being contrary thereunto, may by foresight be eschewed.

Thus much of the first Part of my Treatise, I proceed to the Second.

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Judicium Criminis, OR THE JUDGMENT OF ENGAND, Touching PLEAS OF THE CROWN.

CONCERNING Judgments Criminal, I shall present these particulars, worthy of the Candid Readers observation: 1. The Definition of punishment. 2. The end of punishment. 3. The Division or several kinds of punishment found in our Authours. 4. The rules to be observed by our Judges for the inflicting of pains or punishments. 5. The circumstances to be weighed in relation to punishments. 6. The persons to be considered in Criminal Judgments. 7. The matters of Judgements Criminal. 8. The Judicial Acts, according to our Law.

Of these in their order.

1. Of the Definition of punishment.

Punishment in general signification is, Malum passionis quod infligitur ob malum actionis; Mirror c. 4 sect. 12. but particularly it is defined by M ^r Horn thus: Payne est a satisfaction de Trespasse, [...] de peche.

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2. Of the end of punishment.

The principal end of punishment in our Law is, that others by example may fear to offend, Co. 3. Inft. f. 4. 6. 108. Co. Lib. 4. Beverleys Case 124. a b 3. H. 7. 1. b. Ʋt poena unius sit metus multorum; and therefore a Man that is non compos mentis, or an Infant that is within the age of discretion, is not (un Home) within the statute of 25. E. 3. c. 2. de proditionibus; for the end of punishment is that others may be deterred from the perpetration of similar offences. But such punishment can be no example to mad Men, or Infants, that are not of the age of discretion.

Touching the end of punishment, I shall offer the saying of Quintilian and Seneca.

Quintilian hath these words: Omnis paena non tam ad delictum pertinet, quam ad exemplum.

Seneca thus: De C. C. l. 1. c. 21. In vindicandis injuriis haec tria Lex sequuta est, quae Princeps quoque sequi debet; ut aut eum quem punit emendet, aut ut paena ejus caeteros meliores reddat, aut ut sublatis malis securiores caeteri vivant.

3. Of the Divisions or several modes of punishment.

The kinds or modes of pain, whereby delinquents are asserted are these, saith Bracton:

Sunt quaedam quae adimunt vitam, Lib. 3. c. 6. Tract. 1. de Actionibus. vel membra: sunt quae auferunt Civitatem, Burgum, vel Provinciam. Sunt quae continent auxilium, [Page 115]perpetuum vel ad tempus, vel coercitionem ss. Imprisonamentum, vel ad tempus, vel ad perpetuum. Sunt quae fustigationem, verber ationem, poenam Pilloralem, & Tymboralem, & damuum cum infamia inducunt: sunt etiam quaedam quae dignitatis & ordinis inducunt depositionem vel alicajus actus privationem, vel probibitionem.

The Division of Fleta is thus:

Personalium injuriarum, quaedam sunt criminales, & quaedam Civiles: Lib. 1. c. 16. Criminalium quaedam sententialiter mortem inducunt, quaedam vero minime.

Horne thus: Mirror c: 4. sect. 12. Of pains violent there be two sorts, Corporal and Pecuniary: of Corporal some be Mortal, and some be Venial.

Having given the Reader the several punishments in our Law, it will not be amiss to shew briefly the several sorts of inflictions used amongst the Jews and Romans.

1. Amongst the Jews: Their punishments were either Capital, or not Capital: Their Capital contained four sorts of Death. 1. La [...]idation or Stoning. 2. Goodwius Civil, &c. Ecclesiast. Rites used by the Jews lib. 5. c. 7 & 8. Combustion or burning. 3. Decollation or Beheading. 4. Suffotation or Strangling.

The manner of burning was twofold; some [...]hey burnt with wood and fagots, this was [...]ermed by them, the Burning of the Body: Others they burnt by pouring in scalding hot [...]ead, in at then mouthes, which descending [...]nto their bowels, killed them, the bulk of [...]heir Body remaining whole; and this was [...]enned therefore, the burning of the Soul.

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The lesser punishments not Capital, were chiefly four: 1. Imprisonement: 2. Restitution: 3. Talio or Retaliation: 4. Scourging.

2. Amongst the Romans:

Punishments publickly insticted on Malefactors were either Pecuniary mulcts o [...] Corporal punishments: Godwins Roman Antiq. lib. 3. sect. 3. c. 1 & 2. The Pecuniary mulcts were two sorts, either an appointed sum of money was required of the party guilty, and then it was called Mulcta; o [...] his whole State was seised on, and then i [...] was termed a Confiscation of his Goods.

The Mulct was twofold, the one termed Mulcta Suprema, the other Mulcta minima.

Again; The Corporal punishments wer [...] either such as were Capital, depriving a Ma [...] of his life: or Castigatory, such correction [...] as serving for the humbling and reforming of the Offender, or for the destroying o [...] him.

Those punishments that deprived of lif [...] in ordinary use, and of which there is mo [...] frequent mention in Roman Authors, are thes [...] which follow; Furca, Crux, Carcer, Culeu [...] Equuleus, de Rupe Terpeia Dejectio, Scalae▪ Gemoniae, Tunica, Damnatio in gladium, i [...] Ludum, ad bestias.

Note, That Capital punishments we [...] sometime taken in a Civil acception for th [...] loss of freedom, which the Romans called C [...] pitis deminutionem, disfranchizing; becau [...] in every Free-Man thus disfranchised, on [...] head of the Corporation was as it were [...] off: and sometime (as is said before) it [...] [Page 117]taken for the loss of ones life; and this they called Ʋltimum supplicium.

Thus much of the kinds of punishments used amongst the English, Jews and Romans.

4. Of the Rules for inflicting punishments.

The Rules that concern the Infliction of punishments, are these following;

Respiciendum est Judicanti, ne quid aut durius, aut remissius constituatur, quam causa deposcit, nec enim aut severitatis, aut clementiae gloria affectanda est: sed propenso Judicio, prout quaeque res postulat, statuendum: Bract. lib. 3. c. 16. de Actionib. In levioribus causis, leviores esse debent, ad lenitatem. In gravioribus autem poenis, severitatem Legum cum aliquo temperamento benignitatis subsequi. Et poenae potius molliendoe sunt quam exasperandae.

2. Poena gravior ultra Legem posita, Co. 3. Inst. f. 219. oestimationem conservat. Or;

Majore poena affectus, quam Legibus statutum est, non est infamis.

With this Rule in our Law, the Civil Law Text doth concur;

Poena gravior ultra Legem imposita existimationem conservat: ut & constitutum est, D. 3. 2. 13. 7. & responsum: ut puta si eum, qui parte bonorum multari debuit, Proeses relegaverit: dicendum erit duriori sententia cum eo transactum de existimatione ejus, idcircoque non esse infamem.

3. Carcer ad homines continendos, Co. Lit. f. 260. a. Co. 3. Inst. f. 35. non ad puniendos haberi debet: And therefore where the Law doth require that a Prisoner should [Page 118]be kept in salva & arcta custodia, yet that must be without pain or torment to the Prisoner.

For severas facit Justitia, non inhum [...]n [...]s facit.

With our Law is agreable the Law Imperial.

Solent Pr [...]sides in carcere continendos damnare, D. 48 19.8.9. aut u in vinculis contineantur, sed id eas facere non oportet: nam hujusmodi poenae interdicto [...] sunt; carcer enim ad continendos homines, non ad puniendos haberi debet.

4. Co. lib. 4. Mudson & Lees Case f. 43. Nemo [...]is punitur pro eodem delicto.

In an Appeal one H. counted that the Defendant, &c. felonice maimed him in his left hand, the Defendant pleaded, that before, &c. the Plaintif recovered in Trespass for the same Battery, and wounding 200 pounds and satisfaction acknowledged; resolved, that the Bar is good, for where the Plaintif is to recover damages only, (as in this Case of Appeal) he shal not be twice satisfied for the same thing.

Vide Co. lib. 8. Doctor Bonhams Case 118. b. lib. 11. Fosters Case.

5. Co. 2. Inst. 442. Co. Litt. 145. b. Hobarts Reports Moore. v. Hussey f. 94. Quis pro alieno facto non est puniendus: no Man, if guiltless can be punished for anothers fault: And the reason is because the obligation to punishment hath his rise from defect, which being only personal, cannot extend to another, neither ought it to go in succession.

The Rules of the Civil Law do run with our Law.

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Omnis noxalis actio caput sequitur. Justit. 4.8.

Et delicta & noxa [...] caput sequuntur. D. 16. 3.1.18.

Delictum injuria adfecti personam non egreditur.

6. Poenam in corpus patitur, qui in oere nihil habet.

By the Statute of Westminster 1. c. 20. de Malefactoribus in parcis, it is enacted, that if any be attainted at the suit of the Party, he shall be fined, if he hath whereof, if not, he shall be impisoned.

This rule holdeth good in the Romans Law. Vide D. 48. 19. 1. D. 2. 1. 7. 3. D. 47. 9. 9.

7. In dubiis interpretationibus ad mitiora deflectendum est. Co. 4. Inst. f. 66. Hob. Reports. Courteens Case.

And therefore general Acts of Parliament, which inflict punishment, viz. sur ferfeiture de Corps & de Avoir, &c. ought not to be expounded to extend to life or member, but to imprisonment.

This holds good also in the Imperial Law: D. 50. 17. 192. 1.

In poenalibus causis benignius interpretandum est.

Interpretatione Legum poenoe molliendoe sunt potius, quam asperandoe. D. 48.19.42.

Judicandum est Legibus, non exemplis. Co. 3. Inst. 212.

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5. Of the circumstances that ought to be weighed touching Pleas of the Crown.

In all crimes or offences publick, that are brought before a Judge, Bracton lib. 3. c. 6. de generibus poenarum. Fleta lib. 1. c. 16. de Actionibus criminalibus. Mirror c. 4. sect. 12. are to be considered six circumstances.

1. Causa, ut in verberibus, quoe impunita sunt a Magistro, vel a Parente, nisi modum excedant, quia emendationis non injurioe gratia videntur adhiberi, & puniuntur, cum quis per iram ab extraneo pulsatus est.

2. Persona, nam magis delinquit, qui patrem, vel matrem, vel dominum interficit.

3. Locus, qui facit, ut idem sit furtum, vel sacrilegium, & secundum hoc minor poena, vel major.

4. Tempus, hoc discernit proedonem a fure, & a Burglatore, furemque diurnum a nocturno.

5. Quantitas; hoec discernit furene ab Ambiguo, plus enim peccat qui gregem surripuerit, quam qui ovem.

6. Eventus; ut si ex voluntate & conscientia certa fecerit quis aliquid, sicut homicidium an ex eventu: Et secundum hoc, aut erit felonia, aut infortunium.

Gothofredus on the Digest hath these words.

In factis, dictis, scriptis & Consiliis, Causa, Persona, Locus, Tempus, Qualitas, Quantitas, & Eventus consideranda sunt. Quintil. 6. Inst. Atrocitas crescit ex his, quid factum sit, a quo, in quem, quo animo, quo loco, quo tempore, quo modo.

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6. Of the Persons to be coesidered in Criminal Judgments.

The Persons that constitute Judgment criminal are §. Parties, Assistants, and Judge. 1. Of the Parties in Judgment

Of these in their order.

The Parties are, Accuser, and Accused, called sometime Appellor, and Appellee, sometime Indictor, and Indictee.

Britton telleth us, Cap. 22. that it is not for every Person to accuse or appeal; for a Man outlawed, neither he that hath forjured the Realm, nor a Man attainted, nor an Approver that hath failed in his probation, nor an Infant within the age of 14 yeares, nor a mad Man, nor an Ideot, nor a mute, nor one that is deaf, nor a leper, nor a Man within Holy Orders, are not receivable in Appeals, &c.

The Mirror saith, that Women, Infants, Ideots, Lepers, c. 1. sect. 3. or Professours in Order of Religion, or Clerks, or Persons attainted of felony, or non compes mentis, cannot be Approvours.

Now, an Approvour is he who hath committed some felony, which he confesseth, and appealeth or approveth, that is to say, accuseth others, which were coadjutours or helpers with him, in doing the same or other felonies, which thing he will approve; and this proof is to be either by Battaile or by the Countrey, at his election that appealed.

This Accusation is often done before the [Page 122]Coroner, who either is assigned to the felon by the Court to take and record that which he saith, or is called by the felon himself, and required for the good of the Prince and Common-wealth, to record that which he shall say.

If upon his appeal all those Partners be convicted, the King ex merito Justitioe is to pardon him. But it is in the discretion of the Court either to suffer him to be an Approver, 21. H. 6.29. b. & 34. b. or after his approvement to respite Judgment and execution, until he hath convicted all his Partners.

Note; If a Man that is of good fame be appealed by an approver, by which he is apprehended and kept in prison, yet het may have a writ, to be directed to the Sheriff, commanding him to suffer the Party appealed to be Bayled by good sureties. But if a Man appealed by an Approver, be kept in prison, and afterwards the Approver dieth, there he may sue a Writ directed to the Sheriff, to suffer him to be Bayled upon good surety, if he be not a notorious felon, although he be not of good fame, Fitzh. N.B. 250. d.

Note further, that before Indictment no person can approve, because if his approvement be false, 43. Ass. Pl. 39.15. E. 3. Cor. 113.11. H. 7.5. no Judgment (whatsoever he confessed) can be given against him, unless he be indicted, and no Judgment can be given against him, if his Appeal be false; but of the offence contained in the Indictment, and so are the Books to be understood.

Thus much of the Party accusing.

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As for the party accused or appealed, he is alwayes arraigned either as principal, or accessary.

Of these distinctly and apart.

1. Of Principals.

It is a sure rule, that in alta proditione, Co. 3. Inst. 138. nullus potest esse accessorius, sed Principalis solummodo.

As if many men conspire to Levy War, Co. 3. Inst. f. 9. and some of them do Levy the same, according to the conspiracy, this is High treason in all, for in Treason all be principalls.

If a man committeth Treason, 19. H. 6.47. 3. H. 7.10. Co. 3. Inst. f. 138. and thereby becometh a Traitor, if any other man knowing him to be a Traitor, doth receive, comfort and aid him, he is guilty of Treason, as principal, for that there be no accessaries in High Treason.

Note, Co. Litt. 57. b. Co. 3. Inst. 20 & 21.57. Inst. 20 & 21. Co. 3. Just. 138. Co. lib. 4. Va [...]xes Case. Plowd. Com. 47 [...] Saunders's Case. Co. lib. 9. Gores case. that in the lowest offences there are no accessaries, but all are principals, as in Riots, Routs, &c.

There is another rule; Nullus dicitur felo principalis, nisi actor, aut qui proesens, aut auxilians actorem ad feloniam faciendam.

But this rule hath his exceptions; for in ease of poysoning, if one layeth poyson for one, or infuseth it into a broth, or the like, albeit he be not present, when the same is taken, and either the party intended, or another is poysoned, yet he is a principal: and in that case, both the principal and procurer or accessory may be absent.

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So there is a felony wherein all be principals, Co. 2. Iust. 138. Co. 3. Inst. f. 61. as well before as after, though they be absent at the doing of the felony, but this is specially provided by the Statute of 3. H. 7. c. 2. of Taking Women against their wills.

Note, If any be present, abetting, and aiding any to do an Act, Co. 3. Inst. f. 59. 3 & 4. P. & M. Justice Dalisons Reports. though the offence be personal, and to be done by one only, as to commit a Rape, not only he that doth the Act is a Principal, but also they that be present, abetting and aiding the misdoer, are principalls also.

2. Of Accessary.

In case of felony, as there be principals, so there be Accessories, and accessories be of two sorts, by the Common Law, and by the Statute Law.

Accessory by the Common Law is also of two sorts §.

1. Accessory before the offence or fact; and it is he that commandeth or procureth an other to commit felony, and is not there present himself, when the other doth it, but if he be present, then he is also a principal: As where I. S. doth hold I. X. and commands I. D. to kill him, whereupon I. D. doth give him a wound to his heart, whereof he instantly dies, It is held that both be principals, because both are parties to the wound. 13. H. 7.10. a.

So a Woman servant conspired to rob her Mistress, and brought a Stranger to the Bedside, [Page 125]where the Mistress lay asleep, the Stranger killed, the servant silent, nothing doing, 2 & 3 Eliz. Dyer f. 128. but holding the candle, the two Chief Justices and Hare, thought the Servant a Traitress and a principal.

If a Man counselleth a Woman to murther the Child being in her Body, Dyer f. 186. and after the Child is born, and then is mudered by the Woman in the absence of him that so gave the Counsel; yet he is accessary before the fact, by his counselling, before the birth of the Infant, and not countermanding it.

Note, Co. lib. 4. f. 44. a. that in Man-slaughter a Man cannot be accessary before the fact, for Man-slaughter ensueth upon a sudden debate or Affray, for if it be premeditated, it is murder.

2. Accessory after the offence, and it is he, that receiveth, favoureth, aideth, or comforteteth any Man, that hath done any murder or other felony, whereof he hath knowledge, such an accessory shall be punished, and shall have Judgmenn of life and member, as well as the principal, which did the felony.

But the Quere may be, whether one may be accessory to an accessory? It is answered, that one may; if one feloniously receive another, that is accessory to felony, there the receiver is an accessory.

Thus much of accessories by the Common Law.

Accessory by the Ssatute Law, is such a one that abbeteth, counselleth, or receiveth any Man, which committeth, or hath committed any offence made felony by Statute; for although [Page 126]the Statute doth not make mention of accessories, Co. 3. Inst. f. 59 & 7 [...].7. E. 6. Dyer 88. abettours, &c. yet they are included by the interpretation of the said Statutes: Because whensoever an offence is made felony by act of Parliament, there shall be accessories before and after, as if it had been made a felony by the Common Law.

For the further understanding of accessories, it will not be unnecessary to give the Reader some certain Rules touching them; and then some Queries.

Accessorius sequitur naturam sui principalis: Reg. 1 As if the Wife procure one to murder her Husband, Dyer 16. Eliz. 332. a. Saunders case. Co. 3. Inst. [...]. 20 & 139. and doth it accordingly, in this case the Wife being absent, is but accessory, and shall be hanged and not burnt, because the accessory cannot be guilty of Petit treason, where the principal is not guilty but of murder: and accessorium naturam sequi congruit principalis, The accessory must follow the nature of the principal.

2. Reg. 2 Ʋbi factum nullum, ibi fortia nulla: Et ubi non est principalis, non potest esse accessorius.

As if the principal and accessory be arraigned, Co. 3. Inst. 114.3. H. 7.1.6.12.6. Co. lib. 4. Syers case. and both found guilty, and the principal has his book before Judgment: It was adjudged, the accessory shall be discharged; and also if the principal confess, and hath his book, the accessory shall be discharged, because Judgment was new given against the principall.

So where the principal before attainder is pardoned, the accessory is discharged.

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It is resolved, that where the principal was found guilty of Man-slaughter, and not guilty of murder, and had his Clergy, Co. lib. 4. Syers case. Cro. 1. part. Goss. v. Byby f. 541. Co. lib. 4. Bibithes Case. the accessory shall be discharged, for till Judgment, it doth not appear judicially that there was a principal: But if the principal prayes his Clergy, after he hath had Judgment, or if he be pardoned, yet the accessory shall be arraigned, for it appears judicially that there was a principal.

By what has been said, you see that the accessory ought not to be condemned, but where the principal is attainted, and not where he is convicted only, and had his Clergy; which Clergy is a Refuge provided by the Common Law in favour of Learning, Of Clergy. to save the life of an offender Literate in certain cases; I say in certain cases, because the benefit of the Clergy is taken away in many particulars, as,

1. For stealing of horses 1. E. 6. c. 33.

2. For robbing dwelling houses, &c. in or neer the high way. 5. E. 6. c. 9.

3. For burning of houses, or Barns 5. Ph. & M. c. 4.

For stealing of 5 Shillings in any dwelling house, or any place adjoyning, 39. Eliz. chap. 15.

5. For Burglary and Rape, 18. Eliz. c. 17.

6. For stealing 12 pence or more, without the knowledg of the Person, &c. 8. Eliz. c. 4.

7. Co. [...]. Inst. f. 39. For killing one that hath no weapon drawn. 1. Jac. c. 9, &c,

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But to conclude this learning of Clergy; It is a Rule whensoever felony is made by any Statute, and the benefit of Clergy is not taken away, the offender shall have his Clergy.

The accessory ought not to be put to answer, Reg. 3 9. H. 7.19. b. Co. 3. Inst. f. 231. before the principal be attainted; for Juri non est consonum, quod aliquis accessorius in Curia Regis convincatur, antequam aliquis de facto fuerit attincius: And consequentially by the Reversal and acquittal of the principal, the dependant Judgment against the accessory cannot stand.

And this is agreable to the Rules of the Imperial Laws;

Cum principalis causa non consistat, D. 50.17.178. plerum (que) ne ea quidem, quoe sequuntur locum habent.

Quando res aliqua sit accessoria principali, Alciolus. vitiato principali, corruit accessorium,

Thus much of the Rules, and now for the Quaeries with Solutions.

A Man being made accessorie to two, Qu. 1 whether he can be found accessory to one?

If an Appeal be brought against two, Resp. as principalls, and against another as accessory to them, Co. 2. Inst. f. 183. in this case both of them must be attainted, before the accessory be outlawed, and if one of the principals be found not guilty, the accessory is discharged, for the Plaintiff made him accessory to two, and therefore he cannot be found accessory to one.

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Qu. 2. Whether the Writing of Letters &c. in Favour of a Felon can make him an Accessory?

Resp. If a man write Letters for a Felons deliverance, or in favour of him, or the like, 26 Ass. p [...] 47, he is no Accessory, for that he received not the Felon.

Qu 2. Whether the Instructing of a Felon to Read will make the Person Instructing an Accessory?

Res. A Vicar Instructing an Approver which could not Read, Co: 3. Inst. f. 139, whilst he was in prison, to Read, whereby he escaped, was adjudged not Accessory to the Felony.

Qu. 3. Whether the perswading Witnesses not to Appear to give Evidence against a Felon will make one an Accessory to the Felony?

Res. Catlin and Brown Justices of Assize in the County of Suffolk put this Case to all the Judges: Mich: 11 & 12 Eliz: the Case of Roberts the Attorney, A man committed Felony in the County of Suffolk, for the which he was committed to the Goal, and R. an Attorney advised the Friends of the Felon to perswade the Witnesses not to Appear to give Evidence against him, which was done accordingly; And it was Resolved, that neither the Friends, nor the Attorney were Accessories to the Felony, but it was a great Contempt and Misprision, for which they might be fined and imprisoned.

Hitherto of the Parties in Judgements Criminal.

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The Assistants in Judgements Criminal are of two sorts, 2 Of the Assistants, the one appertaining to the King, as the Kings Serjeants, his Attorney, and Solicitor General, and the Clerk of the Crown; the other to the party Arraigned assigned to him (upon his prayer) by the Court.

The Duty of the Kings Councel learned in the Laws is to manage the Evidence against the prisoner at his Tryal, and the Function of the Clerk of the Crown is to frame, read, and record all Indictments against Traytors, Felons, and other Offenders Arraigned in the Kings Bench upon any publique Crime.

Note by the Statute of 2 H: 4. this Clerk of the Crown, 2 H: 4, c: 10, if fourscore or a hundred men be Indicted of Felony, or Trespass, of one Felony, or one Trespass, and they plead to an Issue, as not Guilty, the said Clerk ought not to take for the Venire Facias, nor for the Entring of the Plea but two shillings only, and not two shillings for every one, which Act is made in affirmance of the Common Law. So if one man be Indicted of two several Felonies, or Trespasses, and is acquitted, 26 Ass: pl: 24, he shall pay but for one Deliverance.

As to the Councel belonging to the Party Arraigned, the Law of England is thus; where any person is Indicted of Treason or Felony, and pleadeth to the Treason or Felony, Not Guilty, which goeth to the Fact best known to the party; it is holden that the party in that Case shall not have an Advocate [Page 131]assigned to defend his Cause, or alledge any matter for him; but if the party Arraigned hath any matter of Law to plead, he shall have Councel assigned by the Court, to plead the same, as to plead a general Pardon, or a particular Pardon, or to plead in Arrest of Judgement, if the Verdict be found against him, that the Tryal came not out of the right place, Co. lib. 6 f 14, Arundels case. as it fell out in Arundels Case convicted by a Jury of wilful Murder, or any other matter of Law.

Sir Humphrey Stafford had an Advocate assigned him concerning the priviledge of Sanctuary, 1. H. 7. [...] 22, b. from whence he was drawn by force; but for the matter of High Treason he pleaded his own Cause.

But though the party Arraigned upon an Indictment of Treason, or Felony, and pleading to the Treason or Felony, Not Guilty, which goeth to the Fact, cannot have Councel to give in Evidence, or alledg any matter for him; yet in Appeals which are the Suites of the Subject, Councel is allowed; and the Reason why Councel is not prohibited in an Appeal as it is in an Indictment may be this: There is no Appeal brought, Doctor & Stud. lib. 2. c. 48. but that of common presumption the Appellant hath malice against the Apellee; and therefore if the Judges should in those Cases shew themselves to Instruct the Appellees, the Appellants would grutch, and think them partial, and therefore as well of the Indempnity of the Court, as of the Appellee in that Case that he be not guilty, the Law suffereth the Appellee [Page 132]to have Councel; but when a man is Indicted at the Kings Suit, the King intendeth nothing but Justice with Favour, and that is to the rest and quietness of his faithful Subjects, and to pull away Misdoers among them charitably, and therefore the King will be contented that his Justices shall help forth the Offenders, according to the Truth, as far as Reason and Justice may suffer.

Note, Co 3. Inst. 29. that in Scotland, in all Criminal Cases, yea in cases of High Treason Pars rea may have Councel learned. Thus much of the Assistants.

There is in Criminal or Publique Judgement a two-fold Judg, [...] Of the Judge. one of matter of Fact, and that is the Iury, whose Office is to find out the truth of the Fact; Co Lit. 226. a. lib. 4. Heydons case, [...]2 a. lib. 9. Dowmans case f: 13, a. the other of Law-matters, and that is the Kings Justice, whose Office is to find out the truth of the Law, Ad questionem facti nen respondent Iudices, ita ad quoestionem Iuris non respondent Iuratores. Of these particularly.

1. Of the Iury.

Iurors ought to be persons competent, and that they be such, it is required that every Juror that is returned for the Tryal of the life of man, Co: Lit, 1 [...]5, b, 272, a, 78, b. ought to have three qualities.

1. He ought to be Dwelling most near to the place where the question is moved, for Lex intendit vicinum vicini facta scire. Stat. 2. H, 5 c. 3, Stat. 2.

2. He that passeth in an Enquest of Life, and death, ought to have Lands and Tenements, [Page 133]to the value of 40 Shillings.

3. He ought to be least suspicious, that is to be indifferent, as he stands unsworn; and then he is accounted Liber & legalis homo, otherwise he may be challenged, and not sufferred to be sworn.

The Determination of the matter of fact by Jurors, Co Lit. 226. a. Co. lib. 9. f. 13. a. Dowmans Case. is termed in our Law, a Verdict, in Latin Veredictum, quasi dictum veri satis.

And of Verdicts some are general, some special, or at large: It is called a Special Verdict or at Large, because the Jurours find the special matter at large, Co. Lit. f. 226. b. & leave the Judgment of Law, thereupon to the Court: Of which kind of Verdict it is said, Omnis conclusio boni & veri Judicii sequitur ex bonis & veris praemissis, & dictis Juratorum. Touching special Verdicts in Crown matters, Vide Cro. 3. part. Hallowayes case; Cookes case f. 537.

2. Of the Judge in matters of Law.

The Judges (that are to decide, and discusse matters in Law) are bound to observe these particulars §.

1. They ought to judge secundum allegata & probata: Quotiescunque sententiam fert Judex, secundum allegata, & probata ferre debet.

2. They ought to see, that the Indictment, Co. 3. Inst. f. 1 [...]7. Tryal, and other proceeding be good, and sufficient in Law, otherwise they will by their erronious Judgment attaint the Prisoner unjustly.

3. The Court ought to be, instead of Countel for the Prisoner, to see that nothing be [Page 134]urged against him contrary to Law and right; Co. 3. Inst. f. 29. nay, any Learned Man that is present, may informe the Court, for the benefit of the Prisoner, of any thing that may make the proceedings erronious.

4. The Jadges ought not to deliver their opinions before hand of any Criminal cause, that may come before them judicially, to the end that The Tryal may be more indifferent, seeing the safety of the Prisoner consisteth in the indifferency of the Court: Co. 3. Inss. 29. And how can they be indifferent, who have delivered their opinions before hand without hearing of the party, when a smal addition or substraction may alter the Case?

5. Judges ought in giving Sentence, especially in ambiguous Cases, Co. Lib 9. Dowmans Case 13. a. to avoid precipitation, because ad poenitentiam properat cito qui judicat. Festinatio Justitiae noverca.

Touching Temerity or Hastiness, take these foreign Authors:

Temeritas est, damnare quod nescias, sayes Seneca.

Temeritate omnis actio vacare debet; Ciccro 1. Offic. Nihil teme [...]itate turpius; Id. d [...] Natura. Nihil a gravitate Sapientis temeritate disiunctius. 4. Academ.

Deliberabo; Lex vult nihil temere fieri: sayes Seneca lib. 2. Controv. 11.

Hitherto of the Persons that are conversant in Judgment touching publick Crimes, or offences.

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7. Of the Matters of Judgments Criminal; and how they are brought to a judicial Decision.

The things or matters of publick or criminal Judgments are Causes proceeding from High treason, Felony, or other Misdemeanours.

Touching High treason and Felony, two things are to be observed.

1. In antient time, every Treason was comprehended under the name of Felony (but not e contra;) 2. E. 4.14.18. E. 4.10.23. Ass. Pl. 49. and therefore in our antient Books, by the Pardon of all felonies, High treason, or Counterfeiting the Great Seal, and of the Kings Coyn, &c. was pardoned. But the Law now is, and of long time hath been otherwise holden: And therefore by the Law at this day under the word Felony, in all commissions, &c. Co. Litt. 391. a. are included Petit treason, Murder, Homicide, Burning of Houses, Burglary, Robbery, Rape, &c. Chancemedley, Se defendendo, and Petit Larceny; but not High treason, for it is not comprehended under the word Felony; and therefore ought to be especially named, in the Kings Pardon or Charter.

2. That criminal, or publick Causes are called Pleas of the Crown, Co. 2. Inst. f. 22. but they are not so called, as some have said, because the King Jure Coronae, shall have the Suite and Common Pleas, because they be held by [Page 136]Common Persons, for a Plea of the Crown may be holden betwixt Common Persons, as an Appeal of Murder, Robbery, Rape, Mayhem, &c. and the King may be party to a Common Plea, as a Quare impedit, and the like,

But now, how these criminal matters are brought to a judicial hearing, is the question; It is answered, that they are brought by way of Accusation, and Exception.

Accusation doth proceed either by way of Appeal, 1. Of Accusations. or by way of Indictment; and first of Appeals. Appeal.

Appeal, Appellum, cometh of the French word Appeller that signifieth to accuse, Co. Litt. 123. b. 126. b. or to appeal, or appeach. An Appeal is therefore an Accusation of one upon another, with a purpose to attaint him of Felony, by words ordained for it.

Now Appeals are of three sorts: Co. Litt. 287. b.

1. Of wrong to his Successor, whose heir he is, and that is only of Death, which is of two sorts, of Murder, & of Manslaughter; but of Chancemedley, no Appeal doth lye.

As touching Appeal of Murder this Quaere is put.

Qu. Whether Tryal of Murder by Appeal ought to be brought in the County, where the fact was committed?

Resp. It is adjudged, that in an Appeal of Murder, the writ shall abate if it be not brought in the County, where the fact was committed; for it is against a fundamental Rule of Law, that a Tryal of murder by [Page 137]Appeal, or otherwise, Cro. 3. part. Sontley, v. Price 247. shall be out of the County where it is perpetrated: And for this cause, it was doubted at the Common Law, where a stroak were given in one County, and death ensued in another, how it should be tryed? And to avoid this doubt the Stat. of 2. E. 6. was made.

But it alwaies was clear, that a fact in one County ought not to be tryed in another.

Note, the Stat. of 26. H. 8. c. 6. allows that Indictments may be in County's next adjoyning; but there is not any mention of Appeals; and for this reason Certioraries have been granted, to remove Indictments out of the Grand Sessions in Wales.

2. Of wrong to the Husband, and is by the Wife only of the death of her Husband to be prosecuted: Co. Litt. 33. b. Touching this kind of Appeal I propose these Queries, with Resolutions on them.

Qu. 1. Whether a Wife de facto, shall have an Appeal?

Resp. Some do hold, and so do I, that a Wife de facto, shall have an Appeal of the death of her Husband, but only she that is Wife de jure in favorem vitae; and that there ne unques accoupse en loyal Matrimony, shall be taken de jure strictly.

Qu. 2. Whether the Wife can have an Appeal, although she cannot have a Writ of Dower?

Resp. The Wife shall have an Appeal, Co. Litt. 33. b. where she cannot have a Writ of Dower, as if she Elope, &c. she is barred of her Dower, but [Page 138]not of her Appeal; West. 2. c. 34. Co. Litt. 33. b. 37. a. Co. 3. Inst. f. 215 35. H. 6.63. and the reason is, for that the Stat. barreth her of her Dower, but not of her Appeal.

So if the Husband be attainted of Treason, or Petit treason, his Wife shall not be endowed; and yet if any do kill him, the Wife shall have an Appeal; for notwithstanding the Attainder he remained her Husband.

Qu. 3. Whether she ought to be sole and unmarried, that brings an Appeal of her Husbands Death?

Resp. It is requisite, that she be sole and unmarried, [...] The Woins Law. b. 5. ct. 1. that makes this Appeal; for if she marry again, her Appeal is gone, though the new married Husband be dead within the year and day, after his death that was slain.

Qu. 4. Whether the taking of a second Husband after Judgment, and before Execution, can hinder the Execution of the Judgment?

Resp. Not only a Widdow, which hath an Appeal hanging, abateth her Appeal, and loseth it force, by new Marriage; but also if after Judgment and before Execution, sma H. 4.41. she take an Husband, she loseth the Execution of the Judgment.

Qu. 5 What is the true reason, why a Woman hath an Appeal de morte Viri?

Resp. The reason wherefore this Action is given to a Widdow, is not as Glanvil makes it, Quia una caro est vir & uxor; for then the Baron might have an Appeal de morte uxoris, The Womans Lawer lib. which is never granted, but her heir shall have it: But the true reason why a Woman hath the Appeal de morte Viri, is because by his [Page 139]death she is thought less able to live and maintain her self, & that therefore when she taketh another Husband, cessante causa, ceffat effectus; and her Appeal is gone, as la Widdowes Quarentine is determined, when she is once remarried.

3. 1. Robbery. Of wrong done to the Appellants themselves, as Robbery, Rape, and Maihem.

If in an Appeal of Robbery, Co. 3. Inst. f. 227. the Plaintiff omit any of the goods stoln, they are forfeit to the King, for the favour, which the Law persumeth the Plaintiff beareth to the Felon: and for that he cannot have restitution for more then is in his Appeal.

If the Jury find in an Appeal of Robbery for goods, 2. E. 3. Cor. 367, & 368. that the Defendant found them in the High-way, in this case the Plaintiff for his false Appeal, seeking the blood of the Innocent, shall forfeit his goods to the King.

If any Virgin, 2. Rape. Widdow or single Woman be ravished, she her self may sue an Appeal of Rape, prosecute the Felon to death, and the Kings Pardon cannot aid him.

But if a Feme Covert be ravished, she cannot have an Appeal without her Husband, as appears 8. H. 4.21. If a Feme Covert be ravished, and consent to the Ravisher, the Husband alone may have the Appeal, 11. H. 4.13. and this by the Stat. of 6. R. 2. c. 6. And the Husband that this Statute speaketh of, which may sue the Appeal, must be a lawful Husband, in Right and possession; for He unques accouple en loyal Matrimony, is a good Plea against him.

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An Appeal of Maihem was brought by one Milles. 3. Maihem. and the Maihem was assigned in his shoulder; and the Defendant demanded the view, and it was said, that he should not have it, because it was done de son tort demesue: 21. H. 7.23. b. also it was said, that Surgeons may heal and cure him, and although he shall be tryed by Inspection of the Court, or by Chirurgeons, it was held be it one way or other, it is peremptory for him, &c.

It was held by all the Justices of the Kings Bench, 21. H. 7.40. a. that in an Appeal of Maihem, if the Defendant pray that the Maihem may be examined; if the Justices or Surveyors which they require, be in doubt whether it be a Maihem or not, the Judges may refuse the examination, and compel the Party to put it upon the Country.

Thus much of wrong done to the Appellants themselves.

I shall conclude this Learning touching Appeals with these Queries.

Qu. 1. Whether all Appeals ought to be sued in proper Person?

Resp. It is answered, that all Appeals are to be sued in proper Person, and not by Attorney, 21. E. 4.72, & 73. as Appeal of Maihem must be in proper Person. A Woman, which was Grossement euseint, The Womans Lawer lib. 5. sect. 2. sued this Appeal; and the Defendant was attainted, the Womans Appearance was recorded for the whole Terme; and yet by the better opinion, she might not pray Execution by her Councel, but ought to come in proper person: therefore one of the Judges [Page 141]did ride to Islington to her, to see if she were alive, and desired Execution, which she required, and the Defendant had Judgment.

Qu. 2. Whether an Appeal may be commenced more then one way?

Resp. It is answered, that Appeals are commenced two wayes, either by Writ, or by Bill.

1. By Writ, when a Writ is purchased out of the Chancery by one Man, against another, commanding him that he shall appeal a third Man of some felony, or other offence by him committed, and to find Pledges, that he shall do this with effect, and this Writ is to be delivered to the Sheriff to be recorded.

2. By Bill, when a Man of himself giveth his Accusation of another Man in Writing to the Sheriff, or Coroner, and taketh upon himself the burthen of appealing him that is named in the said Writing.

And note, that there is a diversity worthy of observation, betwixt an Appeal by Bill, and by Writ: for in the Appeal by Original Writ both principals and accessories, Co. 2. Inst. f. 183. are generally charged alike, without any distinction, who be principals, and who be accessories: but otherwise in the Appeal by Bill.

Thus much of the Accusation by way of Appeal. I proceed now to speak of the other kind of Accusation; viz. by Indictment.

Indictment cometh of the French word Enditer, Indictment Co. Litt. f. 126. b. and signifieth in Law an Accusation found by an Enquest of 12 Men, or more [Page 142]upon their Oaths, and the Accusation, in Latin is called Indictamentum. And as the Appeal is ever the Suite of the Party, so the Indictment is alwayes the Suite of the King, and as it were his Declaration.

For the clearer understanding of Indictments, take these following Rules.

That there be words so appropriated to offences criminal, Reg. 1. that they cannot be Legally by any other words, or Periphrasis.

The word Rapuit, Rape. in an Indictment of Rape, must be used, for carnaliter cognovit eam, or the like will not serve.

Co. Lit. 124. a. Co. 2. Inst. 180. Cro. 2. part. Fitzwilliams Case.

An Indictment, Murder. Quod felonice, & ex malitia sua praecogitata occidit, such a one without saying, Murdravit, is no Indictment for Murther, although these words Tantamount. Cro. 3. part. Fitzwilliams Case Co. l. 4. Brookes Case 39. b. 8. E. 6. Dyer 69. a. 304. b.

No Indictment can be of High treason, High treason. without this word (proditorie) Co. 3. Inst. f. 15, & 4.

In an Indictment of Maihem (Maihemavit) cannot be expressed by any word, Maybem. as mutilavit, truncavit, or the like, Co. Litt. 126. b.

The word Felonice, Felony. must be used in all Indictments of Felony, and cannot be expressed by any other word. Co. Litt. 391. a.

False Latine shall not quash an Indictment, if the word be sensible. Reg. 2. Co. leb. 5. Lowes Case.

It is moved in Arrest of Judgment, that [Page 134]an Indictment was not good, being fecerunt, Cro. [...] part. Cholme leges Case. whereas it was found only Billa vera against one; sed non allocatur: Because it was exhibited against two, and it is but false Latine.

Misrecital of a Statute, Reg. 3. being fatal in Indictments, the sure way is to draw the Indictment with conclusion contra formam Statati, and with no Recital of the Act. Co. l. 4. 48. a.

Every Indictment ought to have the Addition of the Party indicted, Reg. 4. and his place of Abode. Cro. 2. part. Reads Case, and Johnsons Case, 610.

In all Cases of death, the word percussit, Reg. 5. ought to be used, except in case of poysoning. Co. lib. 5. Longs Case.

Where a Man indicted, is not convicted, Reg. 6. or acquitted, he may be arraigned upon a new Indictment. Cro. 3. part.: Withipools Case.

Where the substance of the Indictment, Reg. 7. Co. Litt. f. 282. a. lib. 9. Mackaleyes Case. no matter for circumstances: As if A. be indicted of murder, viz. that he of malice prepensed killed IS: A. pleadeth, that he is not guilty modo & forma; yet the Jury may find him guilty of Man-slaughter, without malice prepensed, because the killing of IS. is the matter, and malice prepensed is but a circumstance.

From Accusation (both by way of Appeal and Indictment) which is as it were the Declaration. I proceed to the Pleas of the Parties accused, which are denominated exceptions.

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Now, the Pleas or Exceptions in Indictments or Appeals, are these §.

Anterfoitz attaint d'un auter offence, Auterfoitz Acquit, Auterfoitz convict de mesme le Felony devant Iudgement, Auterfoitz convict d'un auter Felony, & auterfoitz attaint de mesme le offence.

Of these briefly in order.

1. Auterfoitz attaint d'un auter Offence.

It is a sore saying, which some Men have to plead for themselves, viz. That they are already condemned to be hanged, and ask Judgment, whether during the attainder, they should answer to the felony, whereof they are condemned, or to any other: And this plea serveth where the Party condemned hath already forfeited, as much as he can forfeit; so that it is to no purpose to travel him any further. But in some special cases, when there is some end of it, a Man already condemned, may be arraigned again.

As if a Man attainted of felony, Co. 3. Inst. f. 213. were guilty of Treason also, at the time of the felony committed, he may now be put to answer the Treason, notwithstanding his Attainder of felony, because the King thereby was entitled to have the forfeiture of all his Landes, of whomsoever they were holden. 1. H. 6.5. Otherwise it is, if the Treason were committed after the Felony; or at the [Page 145]least, if it were after the Attainder had of the felony, for then the Title vested in the Seigniours, before the Kings Title, might not be devised by matter accruing ex post facto: but if a Man be attainted of Treason, he cannot be after attainted of a former Treason. v. Cro. 2. part. S ^r Walter Rawleighs Case: 495.

But the Queries may be,

Qu. 1. Whether in divers Appeals of Robbery against one Person, he shall be attaint at every one of their Suits?

Resp. It is answered, The Womans Lawyer lib. 5: sect. 13: that if divers Men have divers Appeals of Robbery against one, to the end that every Man may have again his goods, were of he was robbed, by making fresh Suit, he shall be attaint at every one of their Suits.

Qu. 2. Whether an Appeal of Robbery doth lye for a Robbery done before the felony, of which the Party was attainted?

Resp. It is answered, that the Party may have his Appeal of Robbery, Co. 3. Inst. f. 213. for a Robbery done before the felony, whereof he was attainted; because in the Appeal he is to have Restitution of his goods, besides Judgment of death.

Qu. 3. Whether a Man attainted of Petit Larceny, can be after attainted of Felony?

Resp. It is answered, If a Man be attainted of Petit Larceny, Ibid. he may be attainted of felony, for the which he shall have Judgment of death, because it is an higher offence, and is to have another Judgment.

Qu. 4. Whether a Man attainted of felony▪ [Page 146]and pardoned, shall answer at the Kings Suit, to other felonies committed before, and whereof he was not indicted at the time of the Attainder?

Resp It is answered, that per aliquos videtur quod ita, as well as at the Suit of the Party in an Appeal, yet some held otherwise, 10. H. 4. That a Man can die but once at the Suit of the King, and he that is pardoned, is as a New Man, all Judgments, as against the King, being determined.

But note, If a Man be adjudged to his Penance of Paine, Dyer 14. Eliz. 308. Cobhams Case. Fort, and Dure; yet he may be impeached for any former felony, because the Judgment is not given for the felony, but for his Contumacy.

2. Auterfoitz acquit.

This Plea the Common Law doth allow, because it commandeth, that a Mans life should not be put in Jeopardy twice for one, and the same offence. But then the Acquital must be of the very same offence, or else his Plea is to no purpose: Therefore if two Men be indicted of felony as principals, and afterwards by another Indictment, it is found, that one of them did the felony, and the other did feloniously receive him, after the felony committed; he that is secondarily indicted, and arraigned as accessary, shall not be discharged, by pleading arraignment, and acquital upon the first Indictment, for the offence is not supposed the same, and one, but [Page 147]committed at divers daies, 27. Ass. Pl. 10. And this for Accessaries after the felony: But when felony is done by force of Commanding, and procurement of another, he that shall be arraigned as Accessary, may plead that he was acquit, &c. though it were as principal, and the offences were at divers daies; for vulnus, praeceptum & factum, sunt quasi unum factum.

Note, in an Indictment or Appeal of death, Co. 3. Inst. f. 213, & 214. if it be found that he killed him in his own defence, he is acquited of the felony for ever.

3. Auterfoitz convict de mesme le felony devant Iudgement.

If a Man commit murder, and be indicted, Co. Lib. 4. Holecrofts case. convict, or acquitted of Man-slaughter, he shall never answer to any other Indictment, of the same death, for all is one; and the same felony for the same death.

Wetherel brought an Appeal against Darby of murder, Co. lib. 4. fol. 40. a. the Defendant pleaded Nan culpable, and was found guilty of Man-slaughter, and had his Clergy; afterwards he was indicted of murder, and upon it arraigned at the Kings Suit, and he pleaded the former conviction in the Appeal at the Parties Suite, and it was adjudged a good Barre, ad thereupon discharged, for this was a good Barre at the Common Law, and restrained by no Statute, and the reason is, because the Life of Man shall not be put twice in Jeopardy for the same offence.

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4. Auterfoitz convict d'un auter felony.

Before the Statutes of Qu. Eliz. c. 4. and 18. Eliz. c. 6. If a Man had committed divers felonies, if he had been indicted of the last, and had the benefit of his Clergy, he could not have been impeached for any of the former felonies; albeit for the same he could not have had his Clergy: by the Act it is provided, that notwithstanding the allowance of such Clergy, he may be impeached for any former offence, for which he could not have had his Clergy.

5, and last, Auterfoitz attaint de mesme le offence.

Auterfoitz attaint of the same felony, was a good Plea, Co. 3. Inst. 213. as well in an Indictment, as in an Appeal at the Common Law: But by the Stat. of 3. H. 7. c. 1. in an Appeal of death, at the Suit of the Party, auterfoitz attaint de mesme le mort, is no Plea at this day: But in case of an Indictment of death at the Suit of the King; auterfoitz attaint de mesme le mort in Appeal is a good Plea.

Auterfoitz attaint de murder, is a good Plea to an Indictment, Co. 3. Inst. f. 213. &c. of Petit treason of the same death; for in effect it hath the same Judgment, and the self same forfeiture.

So likewise a Man may be attainted of [Page 149]Man-slaughter, it is a good barre to an Indictment of murder of the same death, and e converso.

Thus much of matters Judicial in criminal offences, I go on now (according to our first proposed Method) to the Acts Judicial.

8. Of Judicial Acts, relating to publik Crimes.

Touching these Judicial Acts, there are worthy of consideration these particulars.

The manner how Causes criminal are brought to Tryal. 2. The Judgment or Sentence upon that Tryal or Arraignment. 3. The Execution of that Sentence. 4. The means whereby the Judgment or Execution may be escaped, or delayed.

No Man is said to be arraigned, 1. The manner of Arraigning a delinlinquent. Co. Litt. 263. a. but meerly at the Suit of the King, upon an Indictment found against him, or other Record, wherewith he is charged. And there the Arraignment of the Prisoner is to take order, that he appear, and for the certainty of the Person, to hold up his hand, and to plead a sufficient plea to the Indictment, or other Record; whereupon they which follow for the Ring may orderly proceed.

If the party accused of Treason or Felony, &c. do at his Arraignment before the Judge deny the offence; or as we say, plead Notguilty, then shall he be tryed by a Jury of 12 [Page 150]Men, dwelling nigh to the Vill, where th offence was comitted, such Men as to the Party accused be nothing allyed, to certify the Judge upon the truth of the fact: which at their appearance, the Party arraigned may challenge peremptorily upon his own dislike, without shewing any cause, in favorem vitae, the number of twenty in murder, and other Felony: And in case of High treason, Petit treason, Co. Litt. 156. b Co 3. Inst. f. 227 & 228. and Misprision of treason, he may challenge to the number of 35: And if he challenge peremptorily above 35 in case of Treason, or Petit treason, he forfeiteth his goods, and Judgment of pain, fort and dure shall be given against him, as one that refuseth the Tryal of Law, by challenging 3 full Juries.

Otherwise in case of Felony, for no Law giveth forfeiture for challenging above twenty; but the Court is to over-rule the Challenge.

But note, Co. Litt. 156. b. that in case of Treason or Felony, the Party arraigned may challenge for just cause, as many as he can.

2. But if the Party upon his Arraignment, in case of Felony, refuse to answer, according to Law, or say nothing, he shall not be Judged to be hanged, Co. Litt. 391. a. Co. 3. Inst. 14, & 217. but for his contempt, he shall undergo pain, fort and dure, which makes no Attainder for the felony, nor forfeiture of his Lands, nor corruption of Blood: Otherwise in case of High treason; for if the Party refuse to answer according to Law, or say nothing, he shall have such Judgment by Attainder, as if he had been convicted by Verdict or Confession.

[Page 151]3. Co. Litt. 391. a. If the Party arraigned be found Guilty by Verdict or Confession, then he is said to be convicted, which is before he hath Judgement or Sentence; and thereupon he doth forfeit his goods and Chattels.

But note, that the begging of the goods or Estate of the Delinquent, indicted of any Treason, Felony or other offence, before he be convicted and attainted is utterly unlawfull, Co. 2. Inst. 43. Co. 3. Inst. 1 [...]7 & 229. Co 3. Inst. 229. because before Conviction and Attainder nothing is forfeited to the King, nor granted by him.

And besides it either makes the Prosecution more violent and undue, then quiet and equal proceeding of Law and Justice would permit; or else by under hand Commission and agreement, hinder the due course of Justice, for examplary punishment of the offender.

Note further, that before Indictment, the goods or other things, 2. Of the Judgment or Sentence pronounced. of any criminal cannot be searched, Inventoried, or in any sort seised, nor after Indictment seised and removed, or taken away, before Conviction, or Attainder.

Thus much of the manner touching the Arraignment of a Delinquent.

Assoon as Judgment, or Sentence is pronounced by the Judge, the Party arraigned is said to be attainted, & mort en Lev: But though the Delinquent by the Attainder be a dead Person in Law, Co. 2. Inst. f. 215, 213. yet maugre the Attainder, his Body may at the Suit of a Subject be taken in execution, upon a Judgment or Stat. [Page 152] &c. Cro. 1. part. Og [...]ll, v. Paston. Cro. 1. part. Trussells Case. And he may be executed for Treason, or felony, notwithstanding such Execution had against him.

As to Attainder, take these Queries, together with Solutions.

Qu. 1. Whether there be a diversity betwixt an Attainder and an Entry into Religion?

Resp. There is a great difference between an Attainder of treason or felony, and an Entry into Religion; for he that is attainted of treason or felony, Co. 3. Inst. f. 215. hath capacity, and may purchase Lands to him and his Heirs; but so cannot he that is entered into Religion.

Qu. 2. When a felony is perpetrated, whether there be a Discrimination in Law betwixt purchasing of Lands before, and after Attainder?

Resp. If a Man commit felony, and after purchase Land, and then is attainted, he has capacity to purchase, but not to hold it, for in that case the Lord of the fee shall have the Escheat: Co. Litt. f. 2. b. But if a Man attainted of felony purchase Lands, in this case the King shall have it by his prerogative, and not the Lord of the fee; for a Man attainted hath no capacity to purchase, but only for the benefit of the King.

Qu. 3. Whether a Person attainted after a Pardon, can have an Action of Battery, &c. committed before the Pardon?

Resp. If a Person be beaten, Co. 3. Inst. 215. or maimed, or a Woman attainted, be ravished, after Pardon, they shall have an Action of Battery, Appeal of Maime, or Rape.

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It is to be known, Co. Litt. 390. b. Perkins ss. 27. that there be two manner of Attainders; the one after appearance, and that in 3 manners: by Confession, by Battel or by Verdict, the other upon Processe to be outlawed, which is an Attainder in Law: But upon every one of these Judgment ought to be given, otherwise it shall not be said an Attainder.

Now, as upon conviction a Delinquent forfeiteth his good and Chattels; so upon Attainder, that is by Judgment given, his Lands and Tenements are forfeited: But touching the forfeiture of Lands, there is a diversity betwixt an Attainder of felony, by outlawry upon an Appeal, and upon an Indictment; for in the case of an Appeal of death or other felony, Co. Litt. 390. b, & 13. a, b. Process being awarded against the Defendant, and hanging the Process the Defenfendant conveyeth away the Land, and after is outlawed, the conveyance is good, and shall defeat the Lord of his Escheat: But if a Man indicted of felony, and hanging the Process against him, he conveyeth away the Land, and and after is outlawed, the conveyance shall not in that case prevent the Lord of his Escheat, For in the case of the Appeal, the Writ containeth no time, when the felony was committed; and therefore the Escheat can relate, but to the outlawry pronounced; but the Indictment contriveth the time, when the felony was committed; and therefore the Escheat upon the outlawry shall relate to that time.

But note, that in case of an Indictment, [Page 154]there is also a difference observed; for (as hath been said) it shall refer to the time alledged in the Indictment for avoiding of Estates, Charges and Incumbrances made by the Felon, Co. Litt. 390. b. Plowd. Com. f. 488. b. after the perpetration; but for the mean profits of the Land, it shall relate only to the Judgment, as well in the case of outlawry, as in other Cases.

There is a Question raised in the Case betwixt Grosse and Gayer; viz. Whether an Attainder to a praemunire, Cro. 3. part. f. 172 & 173. shall have relation to the offence for the forfeiture of his Lands, or only to the time of the Judgment pronounced: But the Judges did give no Resolution of it, being a point of difficulty:

Note; Perkins sect. 29. All the Attainders, as to Goods and Chattels, shall have relation but unto the Judgment given; so that a gift, &c. made of such Goods, by a Felon before the Judgment, is good.

Touching Alienations by a Criminal, the Civil Law says thus:

Post contractum capitale Crimen donationes factae non valent ex constitutione Divorum Severi & Antonini. D. 39.5.15.

Si quis mortis causa donaverit, D. 39.6.7. & poena fuerit capitis affectus, removetur donatio ut imperfecta, quamvis caeterae donationes fine suspitione poenae factae valeant.

Having shew'd the Law touching Alienations, I shall present to the Reader's view the things imply'd at this day, both in the Judgment of Treason and Felony.

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1. In the Judgment of High Treason.

In the Judgment relating to Crimen laesae Majestatis, is imply'd at this day,

First, Co. 3. Inst. 211. Co. 3. Inst. 19. 26. H. 8. c. 13.33. H. 8. c. 20.5. & 6. E. 6. c. 11. the forfeiture of all the Traitors Mannors, Lands, Tenements, and Hereditaments, in Fee simple, or in Fee Tayle, of whomsoever they be holden.

Also of Rent-Charges, Rents seck, Commons, Corodys, and other Hereditaments, which are not holden, for in case of High treason, the Tenure is not material.

Also of Uses, 33. H. 8. c. 20.5. E. 6. c. 11. Co. lib. 7. Inglefields Case. Conditions (unless inseparably knit to the Person) of Rights of Entry, of Lands in the Right of the Wife, during the Coverture; of the profits of Land, which the delinquent hath for life, during his life; of trusts in Chattels Reals; but not of Freehold. Cro. 2. part f. 512. Pl. 23. vid. Andersons Reports▪ Inglefeilds Case, Co. lib. 12. f. 6. Dyer 288. b, & 289. a.

Note, that Rights of Actions, where the Entry is taken away, are not forfeitable.

Secondly, his Wife to lose her Dower.

Thirdly he shall lose his Children, for they become base and ignoble.

Fourthly, he shall lose his Posterity, for his Blood is stained and corrupted, and they cannot inherit to him, or any other Ancestor.

Fifthly, all his Goods and Chahttels are forfeited, &c. and reason is (says Coke) his Body, Lands Coods, Posterity, &c. should be torn, [Page]pulled asunder, and destroy'd that intended to tear and destroy the Majesty of Government.

2: In Judgement of Felony.

A felon impliedly is punished in these particulars.

1. Co. Litt. f. 41. a. 392. a, b. Co. 3. Iust. 47. He doth lose his Children, that they shall become base and ignoble.

2. He shall lose his Posterity, for his blood is stained and corrupted, that they cannot inherit unto him, or any other Ancestor.

3. He shall forfeit all his Lands and Tenements, which he hath in Fee, and which he hath in taile, during his life.

4. All his Goods and Chattels.

Note, that before the Stat. 1. E. 6 c. 2, & 5. E. 6. c. 11. the Wife of a Person attainted of Misprision of treason, Murder or Felony, losed her Dower; but since she is dowable by these Statutes. Hitherto of the Judgment or Sentence it self.

In doing of Execution, 3. Execution of the Judgment pronounced. both in Treason and Felony, two things are worthy of the Reader's notice.

Co. 3 Inst. f. 52.211.212.

1. That it be done by the right Officer, as the Sheriff or Marshal, for if any other execute offendours it is felony.

Execution must be made by the Sheriff or Marshal, according to the Judgment▪ for it is a maxime in the Law of England, Non alio modo puniatur quis quam secundum quod se habeat Condemnatio.

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Punishment may be avoided or escaped, 4. Of the means by which the Judgment or Execution may be avoided in part, or in all. in part or totally, either

1. By the means of Justice, as
- By Writ of Error,
- or
- Falsifying the Attainder.
2. By the means of Mercy, as
- By the Kings Pardon,
- or
- By Restitution: of these in their order.

2. Of Writs of Error.

If the Judgment be erronious, both the Judgment and Execution thereupon and all the former proceedings shall be reversed by Writ of Error: but if the the former proceeding, and the Execution be erronious, the Execution only shall be reversed.

2. Of Falsifying Attainder.

To falsify in Legal understanding is to prove false, that is to avoid, Co. 3. Inst. f. 210. or to defeat the Attainder, in Latin Falsare, seu falsificare, falsum facere.

Wheresoever the Judgment is void, or coram non Judice, Co. 3. Inst. f. 231. the party is not driven to his Writ of error, but may falfify the [...]ttainder by Plea, shewing the special matter, which proveth it void, or coram non Judice: In which case the Party forfeiteth neither Lands, nor Goods.

If a Man committeth Treason, or felony and [Page 158]is thereof attainted in due form of Law, and after this Treason or Felony, is pardoned by a general Pardon, hereby the foundation is self, viz. Treason or Felony, being by Authority of Parliament is discharged & pardoned; Dyer 20. Eliz 135. Co. Lib. 6. f. 13 & 14 in Arundels Case. the Attainder (being builded thereupon) cann't stand, but may be satisfy'd and avoided by Plea, for he hath no other Remedy by Writ of error, or otherwise.

If A, be indicted before the Coroner for the death of another, and that A, fled for the same, hereby are all the Goods and Chattels of A, forfeited, Co. [...]. Inst. f. 233. which he had at the time of the Verdict given: and this cannot be falsified by Traverse. If the Party be arraigned upon the same Indictment before Justices of Gaol delivery, and is by Verdict acquitted of the Felony, and that he did not fly for the same; yet he shall forfeit his Goods and Chattels: Co. Litt. 373. b. But such a fugam fecit may be satisfy'd by matter in Law; for if the Indictment be void or insufficient, there is no forfeiture.

3. Of Pardons.

Touching Pardons, these particulars are worthy of observation.

Pardon in Latin is called Perdonatio, 1. The Etymology of the word Pardon. Co. 3. Inst. f. 233. which is derived a per and dono: per is a Preposition, and in the Saxon Tongue for is orvor: as to forgive is throughly to remit, and fore-think is to repeat, & forbear is to bear with patience.

A Pardon is a work of Mercy, whereby the King doth remit, or forgive a felonious [Page 159]offence, 2. The Description of a Pardon. perpetrated against his Imperial Crown, either before Attainder, or Conviction, or after.

A Pardon (says one) is twofold, 3. The Division of Pardons. one ex gratia Regis, the other per Course del Ley, by Course of Law. Pardon ex gratia, is that which the King in some special regard of the Person, or other circumstance, sheweth or affordeth upon his prerogative Royal or power. Pardon by course of Law, is that which the Law in equity affordeth for a light offence, as Homicide casual, when one killeth a Man having not such meaning. West. Part. 2. Symb. Tit. Indict. sect. 46.

All Pardons of Treason or Felony (says Coke) are to be made by the King, and in his Name only; and are either general, or special: All Pardons either general or special, are either by Act of Parliament (whereof the Court in some Cases shall take notice) or by the Charter of the King (which must always be pleaded:) And these again are either absolute, or under Condition, Exception or Qualification.

General Pardons are by Act of Parliament, Co. 3. Inst. f. 234. and if any of these Pardons be general and absolute, the Court must take notice of them, though the party plead it not, but would waive the same.

No particular Pardon, be it at the Coronation or any other, 4. The Allowance of Pardons. or any offence or offences whatsoever, that is absolute without any condition, &c. need any Writ of Allowance; but when the Pardon is conditional by force of the [Page 160]Act of 10. Co. [...] Inst. f. 234, 235. E. 3. c. 2. there a Writ of Allowance out of Chaucery, testifying that the Condition is performed, viz. surety found according to that Act, may be had, or the Party may plead the finding of Surety, &c. and vouch the Record.

Touching Allowance of Pardons, I shall mention two Cases out of Crokes Reports.

First, upon the 14 day of November 1640, Sir Matthew Mennes, Cro. 3. part-Mints his Case. Knight of the Bath (who was convicted of Man-slaughter, and had his Clergy and his burning in the hand was respited: and now he pleaded his Pardon, whereby the burning in the hand, and all other Felonies committed by him, & alia malefacta, before 8th of July last were pardoned: and there was an especial Clause, that he should not find Suretys for his behaviour, and the Pardon bore date 31 of Octob. last. And although there were many misdemeanors by him after the said 8th of July, for which he deserved to be bound to the good behaviour; yet he had his Pardon allow'd, and was discharged from finding Suretys, &c.

Secondly, Sir Henry Linley, who was indicted of Treason, Cro. 1. part. Linley's Case. being brought to the Bar, and demanded, whether he could say any thing why the Court should not proceed upon the Indictment, which was before Commissioners of Oyer & Terminer, he produced the Queens Pardon, without any Writ of Allowance thereof. And Pope Second Clerk of the Crown, inform'd the Court, that the Presidents were, that in case of Treason, it was used to allow of the Pardon; [Page 161]but not in Felony; whereupon the Pardon was allowed.

Thus much of Pardons.

4. Of Restitutions.

All that is forfeited to the King by any Attainder, &c. he may restore by his Charter, But if by the Attainder the Blood be corrupted, that must be restor'd by Authority of Parliament: and the reason wherefore the King may by his Charters pardon the Execution, and restore the Party or his Heirs to the Lands forfeited by the Attainder, and remaining in the Crown, is for that no Person hath thereby any prejudice, but to make restitution of his Blood, the King cannot do it, but by Act of Parliament, because it should be to the prejudice of others.

And the Rules are,

Non poterit Rex gratiam facere cum injuria, & damno aliorum.

Quod alienum est, dare non potest Rex per suam gratiam.

Quacunqne forma Princeps alienat, salvum manet Jus tertii.

Aliorum honores, aliis damnorum occasionem fierinon oportet.

Note; Of Restitutions by Parliament, some be in Blood only, (that is to make his Resort as heir in Blood to the Party attainted, and other his Ancestors, and not to any Dignity, Inheritance of Lands, &c.) and this is Restitutio [...], secundum quid, seu in partem. And [Page 162]some be general Restitutions, to Blood, Honours, Dignities, Inheritance, and all that was lost by the Attainder; Co. 3. Inst. 240. and this is Restitutio in integrum; and Restituere (generally) nihil aliud est, quam in pristinum statum reducere.

Thus now, concluding this slender Treatise with the Kings Mercy, that is convey'd to his Subjects by Pardons and Restitutions, I humbly apply to our most Gracious Soveraign the words, which Seneca did once intimate to the Roman Emperor §.

Occidere contra Legem nemo potest: servare nemo praeter te.

[Page 163]

The Author hath written somewhat (touching the Satutes of Hue and Cry, for the better and more speedy apprehension of such as are guilty of Robberies) which should have been placed before under the Title of Robbery; but it being by some inadvertence there omitted, the Printer has thought it not much amiss to put it at the end of this Discourse, by way of Appendix. And thus the Author treats concerning the Statutes of Hue and Cry.

BY the Statutes of 13. E. 1. of Winton, c. 1.28. E. 3. c. 11; and 28.1. c. 17. 13. E. 1. c. 1. the Country shall answer, if the Robbers be not taken.

By the Statute of 27. Eliz. c. 13. are enacted these particularities §. 27. Eliz: c. 13.

1. That the Inhabitants of a hundred shall be chargeable with the moyety, where a fresh Suit shall cease.

2. That the Clerk of the Peace shall prosecute the Suit: which Suit commenced, shall not cease upon the death, or remotion of the said Clerk of the Peace.

3. A Remedy for those, against whom the Recovery and Execution is had, to have Contribution.

[Page 164]4. That there shall be no penalty, where any of the offenders be apprehended.

5. The Suit shall be commenced within one year next, after such perpetration, or Robbery, or else the Person, or Persons robbed, shall not take any benefit by vertue of any of the said former Laws or Statutes.

6. That the Party robbed must give notice and intelligence of the Robbery committed unto some of the Inhabitants of some Town, Village, or Hamlet near unto the place, where any such Robbery shall be committed.

7. That the Party robbed shall not have any Action, upon any of the Statutes aforesaid, except he shall first within twenty days next after such Action to be brought, be examined upon his Corporal Oath before some Justice of Peace of the County where the robbery was committed, whether he doth know the Parties that committed the Robbery, or any of them; and then shall become bound to prosecute the offenders.

Having given a summary of these Statutes upon Hue and Cry, I shall present to the Reader several Resolutions given at the Courts of Westminster, upon the Statute of Winchester, and the Stat. of 27. Eliz. The former, you must kow, gives penalty and Remedy, the latter shews how the Examination shall be, and in what time before the Action brought.

[Page 165]

1. Resolves on the Stat. of Winton.

A Robbery for which the hundred must answer by force of the Statute of Winton, Co. Lib. 7. Sendills Case f. 6. is to be done openly; so as the Country may take notice thereof themselves: but a robbery done secretly in the House, the Country cannot take notice thereof, for every one may keep his house as strong as he will at his peril; for it was adjudged in Ashpoles Case, that the Party robbed needed not to give notice thereof to the Country; for it may be the Party robbed was bound, or Maimed, &c. so as he could not make Hue and Cry to give notice.

A Robbery was done in January presently after the Sun-setting, during day light; Ibidem. and it was adjudged, that the hundred shall answer for the same, for it was convenient time for Men to travel, or to be about their Business.

A Robbery was done in the Morning, Co. Lib. 7. Milbornes Case. ante lucem, the hundred shall not be charged.

It was held by Anderson, and all the Justices that whereas the Stat. of Winchester speakes of Robberies done in the day, Cro. 1. part. Ridgeley, v. Hundred of Warrington 70. before night; yet if a Robbery be committed in the Morning before day, or in the Evening after the day, in any time of the night, in which Men use commonly to travel, that the hundred is answerable for it; but if it be at twelve or one of the Clock in the night, at which time every one is intended to be in bed, the hundred is not answerable for the Robbery.

[Page 166]

The Jury found, Cro. 2. part. May, v. Inhabitants of Hundred de Morley 106. that the Robbery was done post lucem ejusdem diei, & ante Solis ortum, Anglice, After day-break, and before Sun-rising; and upon this the Court advised, and Judgement was given for the Plaintiff, and a President shewn Pasch. 28. of Eliz. Rot. 130. where the Robbery was done post occasum Solis, & per diurnum lumen; Anglice, day light, and there adjudged for the Plaintiff.

If an house be robbed in the day; and the Felons escape, Cro. 1. part. Ano [...]ymus 753. Hue and Cry being made, whether the hundred shall answer for that Robbery, by the Stat. of Winton? Gawdy and Popham conceived, that the hundred shall not be charged: For the Stat. of Winton extends only to Robberies done to the Person: And was principally made for safeguard of travellors. But every one ought to keep his own house at his peril; for it is his Castle, and no other ought to meddle there: & therefore it is not reason, that any should be charged, if he be robbed there.

Robbery done on a Sunday shall be chargeable to the Country. Cro. 2. part. Wait, v. Hundred of Stoke f. 496.

[Page 167]

2. Resolves on the Stat. of 27. Eliz.

By the Stat. of 27. Eliz. c. 13. none shall have Action upon the said Statute, Co. Lib. 7. f. 6. Sendils Case. except the Parties robbed, so soon as he may give notice of the same to any of the Inhabitants of any Village, Town, or Hamlet, next to the place where the Robbery was done, and if they in pursuit apprehend any of the offenders, that will excuse the Town.

Action upon the Statute of Winton, Cro. 1. part. Greens case f. 142. for that one Brook his Servant was robbed; and alledges that the Plaintiff himself came before a Justice of Place, and was sworn according to the Stat. of 27. Eliz. And after Verdict, it was alledged in Arrest of Judgement, that the Servant was to be sworn, and not the Master; and so was the opinion of the Court: For the Servant might know the Persons, when the Servant was robbed, and the Master was not in company: and the Intent of the Stat. is, that he that had notice, shall be sworn, and thereupon Judgment was staid.

Action upon the Stat. of Winton, Cro. 3. part. Reymond, v. Hundred de Oking 37, & 38. whereas one Palmer, the Plaintiffs Servant was robbed within the hundred of 68 pounds, by Persons unknown, and had made Hue and Cry, according to the Stat. and one of the Thieves were taken, and the said Palmer had made oath before such a Justice of Peace, of the said County next adjoyning to the said hundred within 20 daies, before this Action brought, that [Page 168]he did not know any of the Parties, who robbed him, that the said hundred had not made him any recompense. And upon Not-guilty pleaded, and tryed at the Bar this Terme, and found for the Plaintiff, it was moved in Arrest of Judgment, that this Action lyes not, because the Plaintiff himself was not sworn, that he knew not any of the Parties, who did the Robbery; for it is not sufficient, that the Servant who was robbed was sworn, for by the Statute of 27. Eliz. the Party who brings the Action ought to make that Oath, and it was argued, that the Servant who was robbed ought to have brought the Action, and then his Oath would have been sufficient: But when the Master brings the Action, he himself ought to be sworn, that he knew not any of the Robbers, otherwise he might not bring it; and therefore the Action lyes not. But it was resolved by the Court, that the Action well lyes for the Master, and that the Servants Oath was sufficient, for it is properly in his notice, that he was robbed, and did not know any of the Robbers, and the Master knows it not that he was robbed, or who were the Persons, but by the report of his Servant; and it would be inconvenient, if the Master should not bring the Action, but the Servant might release, or compound or discontinue the Suit, and so the Master should have the loss by his falshood; therefore the Master shall bring the Action, and have his Servant, who was robbed, be his witness: whereupon it was adjudged for the Plaintiff.

[Page 169]

Action upon the Stat. of Hue and Cry, supposing that he was robbed in such a High way, in divisis Hundredorum, Cro. 2. part. Foster, v. Inhitantes Hundredorum de Spehar f. 675. and that he gave notice thereof to the Inhabitants of the Hundred near to the Place where he was robbed. After Verdict for the Plaintiff, it was moved in Arrest of Judgment, that this declaration is not good, because he doth not shew, that the High way is within any Hundred. And in truth, it out to be given to the Inhabitants of both Hundreds, and so be divers Presidents that notice was given in the other Hundred, to the Inhabitants of that hundred: Sed non allocatur; wherefore it was adjudged for the Plaintiff.

Hue and Cry made in the next Vill adjoyning, though it were in another County, Cro. 3. part. Tutter, v. Inhabitants of Daccorar. is good enough: for a Stranger cannot know the division of Countys.

Vide Cro. 3. part. Merrik. v. Hundred. de Rapesgate 379.

Action upon the Stat. Co. 2. part. Andrews, v. Hundred of Lewknour 187. of Winton of Hue and Cry, and shews in his Count the said Statute, and that such a day he was robbed of so much within that Hundred; and that he made Hue and Cry: and shews according to the Statute of 27. Eliz. And that within 40 days before the Action brought, he was sworn before such a Justice of Peace, that he was robbed of so much, and did not know any of the Felons; & that as yet the Defendants had not taken any of the Felons, nor satify'd him contra formam Stat. praedict. unde Actio accrevit. After Verdict for the Plaintiff, it was moved [Page 170]that this Declaration was not good, because the Action is founded upon two Statutes, and both mentioned in the Declaration; yet he concludes, contra formam Statuti praedicti, which is not good; and the Court thereupon doubted, and appointed Presidents to be searched; and after divers Presidents of this Court, and the Common Bench shewn unto them, wherein some were Contra formam Stat. praedicti, and some Statutorum praedictorum: And the Court held that the best forme was Statuti praedicti. For the Action was grounded only upon the Statute of Winton, which gives penalty, and remedy (the other shews only how the Examination shall be, and in what time before the Action brought, otherwise he shall not have the Action) and Statuti praedicti refers only to the Stat. of Winton, which gives the Action therefore the best form to declare is Contra formam Statuti praedicti.

Thus much of the Satutes touching Hue and C [...]y.

FINIS.

[Page]

THE TABLE.

Accessories.
- IN what offences Accessories may be, and in what not. 123
- The several sorts of Accessories. 124
- Accessories by the Common Law what. 124, & 125
- Accessories by Statute Law what. 125, 126
- Where the Common Law, or Statute Law makes a Felony, Accessories are still included. 126
- Rules touching Accessories. Id.
- Where an Accessory cannot be guilty of Petit-Treason, when the principal of Felony. Id.
- Where the Accessory shall not be tried, if [Page]the Principal hath his Clergy, or be pardoned. 126, 127
- Writing of Letters in favour of a Felon will not make the Party an Accessory. 129
- Instructing a Felon to read will not make an Accessory. 129
- Perswading Witnesses not to appear will not make an Accessory. 129
- Quaeries touching Accessories. 128, 129. &c.
Affrays.
- The derivation of the Word Affray, and the diversity betwixt it and an Assault. 106
- The punishment of an affray. 103
- What persons are bound to part Affraies. 103
- The punishment of those, that refuse to part Affraies. 103, 104
- Affraies inquirable in Leetes. 106
Appeals.
- The Description and Derivation of an Appeal. 136
- Who may, and who may not Appeal, accuse, &c. 121
- Where the Wife shall have an Appeal of the death of the Husband, and where not. 137, 138
- Where the Wife shall have an Appeal; and yet not be endow'd, and e converso. Ibid.
- The true reason why the Wife hath an Appeal de Morte Viri. 138, 139
- [Page]She ought to be Sole and unmarried, that brings an Appeal. 138
- The taking of a second Husband after Judgment, and before Execution, hinders the Execution of the Judgment. 138
- An Appeal ought to be sued in proper Person. 140, 141
- Appeals how many ways commenced. 141
- A Diversity betwixt an Appeal by Bill, and by Writ. Ib.
Approver.
- Who may, and who may not be an Approver. 123
- His Description. Ib.
- Where none can be an Approver upon an Appeal. 122
- Where a Man appealed by an Approver, and thereupon kept in prison, may be Bailed by good Sureties given. 122
Assemblies.
- Assemblies unlawful, how dangerous in former times. 110
Arraignment.
- Arraignment of a Prisoner what. 149
- The manner of Arraigning of a delinquent. 149
Attainder.
- Where a Man attainted shall be liable to Arrests, and Executions for debt. 151, 152
- A Diversity betwixt an Attainder, and an [Page]Entry into Religion. 152
- A diversity betwixt purchasing of Lands before, and after an Attainder. Ib.
- A Person attainted after a Pardon, may have an Action of Battery, &c. done before the Pardon granted. Ib.
- The several sorts of Attainders. 153
- A difference betwixt a Person attainted, and convicted. Ib.
- Where upon an Attainder of Felony in an Appeal, the Defendant shall forfeit no Lands, but those he had at the time of Outlawry pronounced, secus in an Indictment. Ib.
- Attainders as to Chattels, shall relate but unto the Judgment pronounced. 154

Battery,
- What it is. 50
- Who may chastise and correct in a moderate manner. Ib.
- Where a Man may return blows in his own defence, or in the defence of another. 51
- Where a Man may not return or give any blows in his own defence. Id.
Bribery.
- Bribery what. 94
- It may be committed, though no Suit depending in foro contentioso. 94, 95
- It may be committed by one, that is a Judicial Officer, in the [Page]Ecclesiastical Court. 95
- Difference betwixt it and Extortion. 97
Burglary.
- The Etymology, and definition of it. 64, 65
- What shall be said an entry into & breaking of an House, to make it Burglary. Ib.
- Where it shall be Burglary, though but one doth enter. Ib.
- Where a Man may commit Burglary, though he breaketh not the House. 65, 66
- What shall be said a Mansion House, the breaking whereof makes it Burglary. 66, 67
- A Chamber of Innes of Court, or Chancery is a Mansion House. 67
- To break an House, to the intent to beat another, not Burglary. 68
- House breaking. 68, 69, 70
Burning of Houses.
- Its Description. 72
- What shall be said Burning of Houses to make make it Felony. 73
- Where the Burning of an House, without an intent to do it shall be Felony, and wheren ot. Ib.
- The Burning of a Mans own Houses is no Felony. 73, 74

[Page]Causes Criminal.
- Why Causes Criminal are called Pleas of the Crown. 135, 136
- How they are brought to a Judicial hearing. 136
- Challenges to fight. 107
Challenges of Jurors.
- What number the Party may challenge, & what not. 156
Chance-medley,
- What it is. 47
- One Trained Souldier hurting another by mischance. 47
- Where the killing of another by misfortune shall be murder, and where not. 48
- Where 'tis Homicide in a Physician, and where Covert Felony. 49
Clergy.
- In what particulars the benefit of Clergy is taken away at this day. 127
- A Rule touching this Clergy. 128
Conviction.
- When a Man is said to be convicted. 151
Councel.
- What advantages a Prisoner may take in case of Treason, or Felony to have Council assign'd him. 131
- [Page]Council allow'd in Appeals, but not in Indictments; the reason of the diversity. 131, 132
- A Prisoner may have Council in matters of fact. 130, 131

Duels.
- They are against the Law of God, Nature, and the Laws of the Realm. 102
- The punishment of Duellists, though no blood be shed. 103
- What Duells lawful. 102, 103.
- Error. 157

Execution.
- Where it ought to be done by a right Officer. 156
- Where it ought to be according to the Judgment. Id.
- The means by which Execution may be avoided. 157
Extortion,
- What it is. 96
- More odious then Robbery. 97

Felo de se.
- The Description of a Felo de se. 8
- The reason why he forfeits Goods. Ib.
- Where a Man shall be said Felo de se, and where not. 9
- How Felo de se shall be enquired of, where the Body cannot be found. 10
- His Goods not forfeited [Page]till found of Record. 9, 10
- Where a Joyntenant becoming Felo de se, shall forfeit but part, & where the whole. 10
- A Debt owing to Felo de se upon a bare Contract, is not forfeitable to the King. 11
Felony.
- A Pardon of all Felonies is no Pardon of Treason at this day. 135
- The extent of the word Felony. Ib.
- To break a Prison, where by the Felons may escape, is Felony. 83
- The begging of the Estate of a Delinquent before conviction and Attainder, is illegal. 151
- Where none may seise the Goods of any Person before conviction. Ib.
- No Goods of an Offender ought to be fearched, or Inventoried before Indictment, nor removed before conviction. Ib.
- Falsifying Attainders. 157
- Gifts. 95, 96

Homicide.
- The Etymology of the word Homicide. 2
- Its right division. Ib.
- How many sorts of Homicides there be. 3
- What Homicides are Felony, and what not. Ib.
- [Page]The Description of Homicide. 2
- Homicide voluntary, what it contains. 3
- Jus criminis what. 1

Indictment.
- The signification and derivation of the word Indictment. 141, 142
- The difference betwixt an Appeal & Indictment. 142
- In Indictments words are so appropriated to offences, that they cannot be expressed by any other words. Ibid.
- Rules touching Indictments. 142, 143

Judge.
- No man to be Judge in his owne Cause. 50
- Judges in criminal Causes ought to deliver their opinion before hand. 134
- The duty of Judges. 133, 134
- Who Judges of Fact, and who of Law. 132, 133
Judgement criminal.
- The Persons consider'd in it.
- Assistants in it who. 130
- Their duty. Ib.
- In Judgement of High-Treason or Felony, what is implyed. 155, 156
Jurors.
- The properties of Jurous. 132, 133

[Page]King.
- His Treasure the sinews of War. 96
- Head and health of the Common-Wealth. 1, 75, 87
- Making War solely appertains to him. 82

Larceny.
- Larceny what. 55
- Its twofold. 55, 56
- What shall be said a felonious taking, & what not. 56, 57
- Whether an Infant unper the age of discretion can commit Larceny. 57, 58
- Where there must be a felonious taking, as well as a felonious carrying to make a Larceny. 56
- Where, and where not a Feme Covert may be guilty of a Larceny. 58, 59
- Where the Wife cannot steal the Goods of her Husband. Ib.
- It may be committed of a thing that is delivered by Replevin. 59
- What shall be said a felonious carrying away to make it a Larceny. 59, 60
- Larceny cannot be committed of Personal Goods that savor of the Realty. Ibid.
- Where 'tis Larceny to steal the sheets from the Dead. 61
- Where a Man may steal his own Goods. Ib.
Ligeance,
- It cannot be shaken off. 85
- [Page] Lex Talionis. 53
Libels.
- Libel what it signifies. 107
- Libelling, be it true or false, is punishable by our Law. Ib.
- How a Man must demean himself, that finds a Libel. 106
- A French Libel punishable. 107
- A Libel punishable by Indictment. Ib.
Laws.
- The Greek Law touching a Childs stealing of Goods. 58
- What the Civil is touching these following particulars, §.
- Self-Defence. 9
- A Mans Intention. 9 44
- Poysoning. 13
- Malice. 14
- A Woman pregnant. 15
- Physicians and Surgeons. 49
- A Mans Limbs. 52
- Life. 8
- Theft. 55
- An Infants stealing. 58
- Death. 61
- A Man stealing his own Goods. 61, 62
- Robbery. 64
- Sacrilege. 66, 67
- Pyrats. 71
- Burning of Houses. 74, 75
- Treason. 78
- Calculation. 80, 81
- Authority of making War. 82
- Ligeance. 85
- Fausonnery. 86
- Mad-Men. 88
- The Custom of places. 90
- Treasure. 93
- Robbing of Treasure. 94
- [Page]Gifts and Bribery. 95 96
- Rape. 54
- Riots, &c. 103
- Force. 102
- Libels. 107
- Punishments. 114, 117
- Personal offences. 118, 119
- Doubtfull Interpretations. 119
- Circumstances. 120
- Principal and Accessory. 128
- Alienations. 154
Life.
- No Man has power over his own Life, nor members. 8, 52

Misprisions.
- The Derivation of the word, and its Derivation. 91
- It is twofold. 91, 92
- The punishment of Misprision of Treason. 93
- Every Treason and felony includes in it a Misprision. 193
- Where words without overt Act are as punishable as Misprision of Treason. 92
Murder.
- Its Derivation. 8
- How divided. Ib.
- Murder how heretofore, how at this day defined. 11
- Where a mistake in the principal shall make the Accessary guilty of murder, and where not. 12
- What Persons are capable of being murdered. 11
- Poysoning the worst of Murders. 13
- [Page]Whether an Infant within the age of 9 years can be guilty of Murder. 13, 14
- Where there ought to be a continued malice to make it murder, and where not. 14, 15
- Where 'tis no Murder to kill an Infant en ventre de sa mere. 15
- Murder in a Mother to conceal the death of her Bastard-Child. 16
- Stabbing another, where wilful murder. Ib.
- What murders tryable before the Constable and Marshal. 32, 33
- What Officers it is murder to kill. 36
Malice.
- Where to kill another without provocation, is malice implied. 33, 34
- How many kinds there be of malice impli'd. Ib.
Mayhem.
- The signification, and derivation of the word Mayhem. 51
- In what cases a Mayhem may be done, and what not. 51
- Judges may use the help of Surgeons, in point of a Mayhem. 51, 52
- Mayhem how termed by the Canonists. 51
- Where a Man was indicted for mayming himself. Ib.
- The antient punishment for him that maymed another. 52
- Maliciously to cut the nose, is felony at this day. 51
- The degree of this offence, [Page]called mayhem. 53

Offences.
- An offence, or delict what. 1
- How many ways offences are committed. Ib.
- What offences despoil Men of their property. 54
- Offences, that injure Mans Body or members. 50
- Offences, relating to life. 2

Petit Treason,
- What it is. 3
- How many ways it happens. 3, 4
- What may be said Petit Treason in a Servant. 4
- Execution of a Servants Act, hath a retrospection to the Original cause. Ib.
- What may be said Petit Treason in a Wife. 5
- Parricide whether Petit Treason, or not. 6, 7
Poyson.
- How many ways a Man may be poysoned. 35, 36
Piracy.
- The Etymology of the word Pirat. 70, 71
- Piracy where antiently Treason, where not. Ibid.
- It alters not property unless it be in Market overt. Ib.
- Where there shall be no corruption of [Page]blood in case of piracy. 71, 72
- Where a Pardon of all felonies shall not extend to Piracy. Ib.
Punishment.
- Its definition. 113
- The true end thereof. 114
- Its several sorts in our Law, in the Jewish, and Romane Laws. 114, 115, 116, 117
- Circumstances observable, relating to punishments. 120
Principals.
- In Treason all are principals. 123
- Rules touching principals. Ib.
- Where a Man may be principal, though he be not present at the Act. Ib.
- Where a Man may be principal as well before as after, though he be absent at the doing of the fact. 124
- Where the being present and abetting an offence makes all principals, though the offence be personal. Ibid.
- Where the Attainder of an Accessary, depends upon the Attainder of the principal. 128
Pain, Fort, & Dure.
- In what cases a Man that stands mute, shall have Judgement of Pain, Fort, and Dure, and in what not. 150
- Where the Judgement of Pain, Fort, and [Page]Dure, shall be no Plea to a former felony. 146
Pardon.
- The Description and Etymology of it. 158, 159
- How many sorts of Pardons there be. Ib.
- Where a Writ of Allowance is necessary to a Pardon, and where not. Ib. 160

Rape, &c. 83, 84
Riots.
- The Description of a Riots, and its derivation. 101
- Stat. touching Riots. Ibid.
- What number of Persons may commit a Riot, a Rout, ad unlawful Assembly. 103
Robbery.
- Its definition. 60
- The Difference betwixt a Robber, and a Cut-purse. 63
- What shall be a taking in case of Robbery, and what shall be said a taking from his Person. 63, 64, 65
- The Thieves reception only may make a Robbery. 64
Routs.
- The description of a Rout. 98
- The difference between a Levying of War, and committing a great Rout, &c. 100, 101
[Page]Rumours.
- The punishment before the Conquest, and what since of those that are authors of false Rumours. 110
- They were heretofore very dangerous to our Kingdom. Ib.

Se Defendendo.
- What Homicide se defendendo is. 44
- Where a Man ought to give back to prevent Homicide, & where not. 45, 46
- Sacrilege. 68, 69, 70
Striking in the Kings Court.
- A diversity betwixt a stroke in, or before the Courts of Justice, and the Kings Courts, where His Royal Person resideth. 99
- Where to strike in Westminst. Hall, or the Kings Palace, is a great Misprision, & the punishment of it. 97, 98

Theft.
- The Etymology of the word Furtum. 55
- Its Definition. Ib.
- Forbidden by the Law of Nature. Ib.
- The several sorts of Theft. Ib.
Treason.
- Its derivation, and how divided. 3
- Violation of Royal Majesty, a most abominable thing. 75, 76
- [Page]To compasse or imagine the death of the King, High Treason. 76
- What are sufficient overt Acts to prove the imagination of the Kings death. Ib. 77
- In every rebellion by Interpretation of Law, there is a machination against the Life of the King. 77
- A diversity betwixt Treason and Felony. 78
- Where words or Writing are sufficient overt Acts of Compassing the Kings death. Ibid.
- Where words may make a Heretique, but not a Traytor. 80
- No words are Treason, unless made so by some particular Statute. Ib.
- No Treason at this day, but what is made by the Stat. of 25 E. 3.
- Where to set a figure to know how long the King shall live, or Reign, is no Treason. Ib.
- Where to practise to depose the King, to imprison him, or to take him into their power, shall be Treason. 76, 77
- The compassing or imagining the death of the Queen, or Prince, is High Treason. 81
- Where slaying the Chancellor, &c. shall be High Treason. Ib.
- Carnal knowledge of the Kings Consort, the Kings Eldest Sons Wife, or of the Kings Eldest Daughter, Treason. Ib.
- [Page]What shall be said Levying of Wartomake it Treason. 82, 83
- To go in Warlike manner with a multitude to assault a Privy Councellor at his House, is Treason. Ibid.
- The breaking of a Prison, wherein Traitors be in Durance, and causing them to escape is High Treason, though the Parties did not know there were any Traitors there. Ib.
- There must be Levying of War de facto, to make it Treason. Ib.
- What shall be said an adhering to the Kings Enemies to make a Treas. within the Stat. of 25. E. 3. 83, 84
- Where a conspiracy with a Foreign Prince, shall be Treason, and where not. 84, 85
- The aiding and succouring a Rebel beyond Seas, is no Treason. Ibid.
- Who shall be said Enemies, and who Traitors. Ibid.
- To counterfeit the Great-Seal or Mony, is Treason. Ib.
- Forging the Kings Coyn, without uttering it, is High Treason. 85, 86
- Bringing into the Realm counterfeit Coyn, High Treason. 87
- By the Antient Law a Mad-Man might be guilty of High Treason. 88
- Where a Non compos mentis cannot be guilty of High Treason at this day. Ib.
- What Aliens may commit [Page]Treason. Ib.
- Where the killing of an Embassador was adjudged High Treason. 89
- An Embassador shall loose the Priviledges of an Embassador, for committing High Treason. Ib.
- A Foreign Prince by residing here, may commit Treason. 90, 91
- The Judgement in Treason for Counterfeiting Mony. 86

Verdict.
- The signification and derivation of the word. 133
- Several kinds of Verdicts. Ibid.

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An abridgment of the lawes of England, touching treasons, rebellious murthers, conspiracies, burning of houses, poysonings, and other capital offences. WIth such readings thereon as show the several wayes whereby offenders in such cases may become guilty. / by John Bridall, Esq.

Author: Brydall, John, b. 1635?1679

JƲs CRIMINIS: OR THE Law of ENGLAND, TOUCHING Matters Criminal.

1. Of those Crimes that are committed medi­atly, contra Coronam & dignitatem Regis, and do relate to Life it self, as Homicides.

1. Of Murdering a mans self, called Felo de se.

2 Of Murder in respect of another.

1. Of Homicide, which for Distinction-sake we call Manslaughter.

3. Of Se Defedendo, that is Voluntary, and not Felony.

3. Of Homicide by misadventure.

2. Of those Crimes, that appertain to mans body, or members, and they are Battery, Mayhem, and Rape.

3. Of those Offences that dispoil men of their property.

1. Of Theft.

1. Of Larceny.

1. Of Robbery.

3. Burglary.

2. Touching Mansion houses.

2. As to a Booth or Tent.

3. As to Chambers, belonging to Inns of Court.

3. Touching the intention of the Party.

4. Touching that which is perpetrated In fraudem Legis.

4. Pyracy.

5. Burning of Houses.

1. High Treason. Crimen laesae Maje­statis.

1. Touching Death.

2. Touching violation, or Carnal knowledge.

3. Touching War.

4. Touching Adhesion to the Kings Enemies.

5. Touching Fausonnery. Crimen falfi.

6, and last: Bringing into the Realm Counterfeit Coyn.

2. Misprision of Treason.

3. Robbing the Kings Treasure. Crimen pe­culatus.

4. Bribery.

5. Extortion.

6. Striking in the Kings Courts, where he resides personally, or by Representation.

7. Routs.

8. Riot.

9. Affraies, Single Combats, and Chal­lenges, &c.

3. Challenges. Co. 3. Inst. f. 158. v. Hobarts Reports. Barrow. v. Llewil­len f. 62. Hickes case 215.

10. Libells.

11, and last, False Rumours; and slan­derous news.

Judicium Criminis, OR THE JUDGMENT OF ENGAND, Touching PLEAS OF THE CROWN.

1. Of the Definition of punishment.

2. Of the end of punishment.

3. Of the Divisions or several modes of punishment.

4. Of the Rules for inflicting punishments.

5. Of the circumstances that ought to be weighed touching Pleas of the Crown.

6. Of the Persons to be coesidered in Criminal Judgments.

1. Of Principals.

2. Of Accessary.

1. Of the Iury.

2. Of the Judge in matters of Law.

7. Of the Matters of Judgments Crimi­nal; and how they are brought to a judicial Decision.

1. Auterfoitz attaint d'un auter Offence.

2. Auterfoitz acquit.

3. Auterfoitz convict de mesme le fe­lony devant Iudgement.

4. Auterfoitz convict d'un auter felony.

5, and last, Auterfoitz attaint de mesme le offence.

8. Of Judicial Acts, relating to publik Crimes.

1. In the Judgment of High Treason.

2: In Judgement of Felony.

2. Of Writs of Error.

2. Of Falsifying Attainder.

3. Of Pardons.

4. Of Restitutions.

1. Resolves on the Stat. of Winton.

2. Resolves on the Stat. of 27. Eliz.

1. Of those Crimes that are committed mediatly, contra Coronam & dignitatem Regis, and do relate to Life it self, as Homicides.

1. High Treason. Crimen laesae Majestatis.

3. Robbing the Kings Treasure. Crimen peculatus.

9. Affraies, Single Combats, and Challenges, &c.

3. Challenges. Co. 3. Inst. f. 158. v. Hobarts Reports. Barrow. v. Llewillen f. 62. Hickes case 215.

11, and last, False Rumours; and slanderous news.

7. Of the Matters of Judgments Criminal; and how they are brought to a judicial Decision.

3. Auterfoitz convict de mesme le felony devant Iudgement.