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. Rom. 12. 19. It is also against the Law of nature and Nations for a Man to be Judge in his own proper Cause especially in Duels where fury wrath malice and revenge are the rules of the Judgment Hinc est sayes one quod Legum reperta est sacra reverentia ut nihil manu nibil proprio ageretur impulsu Quid enim a bellica confusione pax tranquilla distat si per vim litigia terminantur But it may be objected 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 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 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 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 aud Imprisonment and to find sureties for their behaviour When any Affray is made by Single Combat any stander by that is no Officer 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 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 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 cum probibere passit 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 Cffraper 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 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 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 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 Jesses was indicted for that he exhibited an infamous Libel directed unto the King against Sr Ed. Coke late chief-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 West minster 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 other wise whereupon it was adjudged He should be committed to the Marshall and that he should stand upon the Pillory at West minster and Cheapside with a Paper mentioning the offence and with such Paper be brought to all the
Appeal brought 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 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 that in Sâ—otland 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 one of matter of Fact and that is the Iury whose Office is to find out the truth of the Fact 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 qnoestionem 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 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 seire 2. He that passeth in an Enquest of Life and death ought to have Lands and Tenements 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 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 atlarge 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 Quotieseunque sententiam fert Judex secundum allegata probata ferre debet 2. They ought to see that the Indictment 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 Councel for the Prisoner to see that nothing be urged against him contrary to Law and right 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 Judges 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 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 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 Cicero I. Offic. Nibil temeritate turpius Id. de Natura Nihil a gravitate Sapientis temeritate disiunctius 4. Academ Deliberabo Lex vult nibil temere fieri sayes Seneca lib. 2. Controv. 11. Hitherto of the Persons that are conversant in Judgment touching publick Crimes or offences 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 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. are included Petit treason Murder Homicide Burning of Houses Burglary Robbery Rape c. Chance-medley 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 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 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 Qâ—are 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 or by way of Indictment and first of Appeals Appeal Appellum cometh of the French word Appeller that signifieth to accuse 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 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 Chaucemedley 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
these words I will kill the King innuendo Dominum Carolum Regem Augliae 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 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 Balaamâ— Case These two last Presidents you may see cited in Pyne's Case in Crokes third part of his Reports 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 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 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 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 Paliament 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 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 Consort or Prince 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 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 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 3. Touching War To levy War against our Lord the King is High treason 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 in 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 anctoritas atque Consilium peues Principes sit If any levy War to expulse Strangers to deliver men out of Prison to remove Counsellors 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 desensive doth hold and defend a Castle or Fort 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 wherein all the Justices and Barons were in Commission and present at which time upon Conference 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 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 To deliver or surrender the Kings Castles or Fort by the Kings Captain thereof to the Kings Enemy within the Realm or
contempt of the 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 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 difference 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 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 iustigation 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 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 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 Assembly 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 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 Kioter id est Rixari 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. 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 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 William Cleer had arrested him and was carrying him to Prison and they procured him to escape The Arrest was at Charing Crost in the Parish of St. Martins and 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 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 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 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 bominum 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 duo Congregationem quindecim turbam constituunt in Jure Civili sed Jure in Communi Angliae tres turbam faciunt 9. Affraies Single Combats and Challenges c. Single Combats or Duels between any of the Kings Subjects of their own heads and for private malice
this offence 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 blood in case of Piracy 71 72 Where a Pardon of all felonies shall not extend to Piracy Ib. Punishment It s definition 113 The true end thereof 114 It s 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 Dure shall be no Plea to a former felony 146 Pardon The Description and Etymology of it 158 15â— 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 It s 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 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 It s derivation and how divided 3 Violation of Royal Majesty a most abominable thing 75 76 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. What shall be said Levying of War to make 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 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. Lib. 3. c. 4. nu 3. de corena Mirror c. 1. Sect. 9. Co. 3. Jnst f. 54. 1 Petit Treason Co. 3. Inst f. 4. 20. 12 Ass pl. 30. 19 H. 6. 47. Plowdens Com. 86. b. Crompt 20. Crompt 20. Co. lib. 1. Shellies case 99 b. 10. H. 6. 47. Plowdens Com. 260. Co. 3. Inst f. 20. Moores Reports nu 227. f 91. Cromp. 20. Plowd Com. f 474. Co 3 Just f 20 The Womans Lawyer lib. 3. sect 44. Crompt ' 21. Dalisons Rep. 1. Mar. 1. Murder Co Litt 287 bpunc Stamfords Plees of Crown Lib 1punc Quaere 1 Resp D 47 253N Qu 2 44 E 3 44 3 E 3 Cor 286 Co 3 Inst f. 54 Qu 3 Resp Plowd fol 360 b. Co Lit f 114 ab l 5 f 109. Qu 4. Hill 37 Eliz in the Kings-Bench by the whole Court in the Case of one Laughton of Cheshire Qu 5 Resp 8 E 4 4 7 E 4 7 a Plowd Com 259 b Qu 6 Resp Dyer 262 a Lib 3 c 15 nu 1 de Corona Britton c 6 Lib 1 c 30 14 E 3 c 4 Qu 1 Sol Co
No Goods be forfeited untill it be lawfully found by the Oath of Twelve men that he is Felo de se 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 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 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 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 becoming Felo de se doth forfeit the whole There is a diversity between Chattels personals in Action 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 If a man that is Felo de se has a debt upon a bare contract and not upon specialty 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 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 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 s aith the Law in this point hath received an alteration by the Stat. of 14. E. 3. 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 Touching the former viz. Malice expressed take these Queries with their Solutions Whether this same malice 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 And therefore Bracton's words are siquis unum percusserit cum alium percutere vellet 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 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 Whether killing a man by poyson be more detestable than by any other means To kill a man by poyson sayes Coke 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 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 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 quam occidere gladio For Clam interficere sayes Gothofredus on the Text gravius est quam palam Plus est hominem veneno extinguere 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 Vn Infant deins age ix ans occist un Enfant de ix ans Confesse le Felony auxi fuit trove que quant il luy avoit tue il luy occult auxi le Sanke que fuit sur luy effundes si il ceo cxcuse And the Judges held that he ought to be hanged 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 suit 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 illuy ferist en le gule puis en le Teste issint en divers Lieux del corps tanque qu'il fuit mort 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 cadere potest i. e. si modo sit proximus pubertati ea sentiat in quibus deliquit Malitia minor is etatem justam esse representat ac supplet vel sic Malitioe non succurritur Whether Malice prepensed must be continuing till the mort al wound given Albeit there had been malice between two and after they are pacified and made friends and after this upon a new occasion fall out and the one killeth the other this is Homicide but 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. 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 If a Woman be quick with Child and by a Potion or otherwise killeth it in her womb or if a man beat her 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 quo partum abigeret constiterit eam in exilium preses Provinciae exiget Cicero in oratione pro Cluentio Avito scripsit Milesiam quandam mulierem cum esset in Asia guod ab hberedibus secundis accepta pecunia partum sibi medicamentis ipsa abegisset rei Capitalis essedamnatam Whether it be murder in a Mother to conceal the death of her Bastard Child It is Enacted That if any Woman be delivered of any Issue Male or Female which being born alive 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 as in case of wilful murder It is Enacted That every person which shall stab 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 Consession 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 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 and fight there and the one kill the other 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 slain 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 France 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 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 bemalice precedent and that such a slight provocation is not a sufficient ground or pretence for a Quarrel 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 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 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 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 infused into his meat or drink 2. Aubâ—litu by taking in breath as by a poysonous persume 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 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 and Under-Bayliff to the Dean of Westminster and he having the Sheriffs Warrant to Arrest the said Thomas 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 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 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 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 Manslaughter 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 praecgitata or Malitia implicita as to Murder one suddenly or in Resistance 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
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 Jure hoc evenit ut quod quisque ob tutelam Corporis sui fecerit jure secisse existimetnr Non injuria fecit qui se tueri voluit cum alias non posset 2. If a Thief offer to Rob or Murder B. either abroad or in his House and thereupon on 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 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 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 Question 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 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. 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. 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 call Man-slaughter by misadventure or Chance-medley 3. Of Homicide by misadventure Chance medley or per Infortunium is when one is slain casually and by misadventure without the will of him that doth the Act whereupon death ensueth 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 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 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 fore-thought 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 or by chance be not felony Quia in maleficiis voluntas spectatur non exitus D. 48. 8. 14. yet the party guilty shall 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 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 not debet Ita quod per imperitiam commisit imputari ei debet praetextu humanae fragilitatis delictum decipientis in periculo homines inoxium esse non debet Imperitlia culpae adnumerontur 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 2. Of those Crimes that appertain to mans body or members and they are Battery Mayhem and Rape 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 Generali lege decernimus neminem sibi esse judicem vel jus sibi dicere debcre In re enim propria iniquum admodum est alicui licentiam tribuere sententiae Again Non est singulis concedendum quod per Magistratum publice 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 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 it is not lawful for him to return or give any blows in his own defence as he may elsewhere in other places Mahim 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 auy 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 fore-teeth 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 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 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 To this it answered that he may As it appears in the Case of one Wright anno 11. Jac. in the Country of Leicester who being a yong strong and lusty rogue to make himself important thereby to have the more colour to beg or to be relieved without putting himself to any labor caused his Companion to stricke 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 home suo nomine utilem aquiliae habet actionem directam enim non habet quoniam dominio membrooum suorum nemo videtur 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 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 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 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 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 or Rape is felony by the common-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 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 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 It against her will he threw her on 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
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 pâ—ena 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 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 although there be no suit depending in fota contentioso Bribery may be committed not only when a Suit dependeth in foro contentioso but also when any in Judicial place doth any thing virtute or colore Officii though there be no Suit at all For example 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 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 by one that hath a Judicial place in the Ecclesiastical Court The Statute of 5 E. 6. c. 16. doth extend as well to Ecclesiastical Office as temporal which concern the Administration and execution of Justice 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 ut neque morose in totum abstineat neque avare modum Xeniorum excedat quam rem Divus Severus Imperator Antonius clegantissime epistola sunt moderati cujus epistolae verba haec sunt Quantum ad Xenia pertinet Audi quid sentimus Vetus preverbium 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 exâ—oecant oculos sapientum ac pervertunt verba Justorum verum hic agitur saies Gothofredus 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 muâ—terum qualitate Aliud ii est munus aliud Xenion Xeniolon Lege Julia repetundarum tenetur qui cum aliquam potestatem haberet pecuniam ob judicandum decernendumque acceperit Qui munus publice mandatum accept a 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 vel quod est ultra debitum vel ante tempus quod est debitum Of this crime it is said that in no other than Robbery and another saith that it is more odious than Robbery 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 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 and forfeit his Lands and goods and his Body to perpetual imprisonment The reason is because it tendeth ad impedimentum Legis terrae So it is if in Westminster Hall or any 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 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 Caery was indicted for drawing his sword in Aula Westm sedentibus Curiis 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 St William Waller was indicted for that he in the Palace of Westminster neer the Great Hall 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
Courts at Westminster and be continued in Prison until he made his submission in every 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 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 si quis insamiam alicujus Libellum aut Carmen an t Historiam scripserit composuerit ediderit dolove malo fecerit quo quid eorum fieret Si quis famosum Libellum five domi five 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 11 and last False Rumoâ—rs and slanderons news None shal report slanderous news whereby discord may arise between the King and his People 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 But by the 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 not withstanding the said Statutes Note 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 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 is 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 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 but particularly it is defined by Mr Horn thus Papne est a satisfaction de Trespasse on de peche 2. Of the end of punishment The principal end of punishment in our Law is that others by example may fear to offend Vt 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 name 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 oâ— 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 poena non tam ad delictum pertinet quam ad exemplum Seneca thus In vindicandis injuriis haâ— 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 secuciores 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 vel membra sunt quae auferunt Civitatem Burgum vel Provinctam Sunt quae continent auxilium perpetuum vel ad tempus vel coercitionem ss Imprisonamentum vel ad tempus vel ad perpetuum Sunt quae fustigationem verberationem poenam Pilloralem Tymboralem damnum cum infamia inducunt sunt etiam quaedam quae dignitatis ordinis inducunt depositionem vel alicujus actus privationem vel prohibitionem The Division of Fleta is thus Personalium injuriarum quoedam sunt criminales quaedam Civiles Criminalium quaedam sententialiter mortem inducunt quoedam vero minime Horne thus 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 amifs 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. Lapidation or Stoning 2. Combustion or burning 3. Decollation or Beheading 4. Suffocation or Strangling The manner of burning was twofold some they burnt with wood and fagots this was termed by them the Burning of the Body Others they burnt by pouring in scalding hot lead in at their mouthes which descending into their bowels killed them the bulk of their Body remaining whole and this was termed therefore the burning of the Soul 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 Malâ—factors were either Pecuniary mulcts or Corporal punishments The Pecuniary mulcts were two sorts either an
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 or to defeat the Attainder in Latin Falsare seu falsificare falsum facere Wheresoever the Judgment is void or coram non Judice the party is not driven to his Writ of error but may falsify 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 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 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 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 But such a fugam fâ—cit 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 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 offence perpetrated against his Imperial Crown either before Attainder or Conviction or after A Pardon says one is twofold 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 Pardon 's 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 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 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 Act of 10. E. 3. c. 2. there a Writ of Allowance out of Chancery 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 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 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 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 some be general Restitutions to Blood Honours Dignities Inheritance and all that was lost by the Attainder 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 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. the Country shall answer if the Robbers be not taken By the Statâ—te of 27. Eliz. c. 13. are enacted these particularities § 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 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 1. Resolves on the Stat. of Winton A Robbery for which the hundred must answer by force of the Statute of Winton 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 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 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 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 The Jury found 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 diuruum lumen Anglice day light and there adjudged for the Plaintiff If an house be robbed in the day and the Felons escape 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 2. Resolves on the Stat. of 27. Eliz. By the Stat. of 27. Eliz. c. 13. none shall have Action upon the said Statute 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 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 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 adjoining to the said hundred within 20 daies before this Action brought that 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 onght 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
13. H. 4. c. 7. 2. H. 5. 8. Co. 3. Inst f. 176. Co. Litt. 257. a. Co. 3. Inst f. 176. Bartolus 1. Single combat Object Resp Affray Co. 3. Inst f. 178. 8. E. 2. Cor. 295. 22. Ass Pl. 56. 3. H. 7. 10. 6. Bedingfeilds case Co. 3. Inst f. 158. v. Hobarts Reports Barrow v. Llewillen f. 62. Hickes case 215. Cro. 3. part Jesses case f. 175. Mich. 10. E. 3. Goram Rege Rot. 92 Eber. Just 4. 4. 1. Cod. 9 36. De famosis Libellis 3. El. 6.34 2. R. 2. c. 5. 12. R. 2. c. 12. Inter Leges Alvaredi c. 28. Mirror c. 4 sect 12. Co. 3. Inst f. 4. 6 108. Co Lib. 4 Bâ—verleys Case 124. a b 3. H. 7. 1. b. De C.C. l. 1. c. 21. Lib. 3 c. 6. Trâ—â—l 1. de 〈◊〉 Lib. 1. c. 16. Mirror câ— 4. sect 12. Goodwius Civil c. Ecclesiast Rites used by the Jews lib. 5. c. 7 8. Godwins Roman Antiq lib 3. sect 3. c. 1 2. Bract. lib. 3 c. 16. de Actionib Co. 3 Inst f. 219. D. 3. 2. 13. 7. Co. Lit. f. 260. a. Co 3. Inst f. 35. D. 48 19. 8. 9. Co. lib. 4. Hudson Lees Case f. 43. Co. 2. Inst 442. Co. Litt. 145. b. Hobarts Reports Moore v. Hussey f. 94. Co. 4 Inst f. 66. Hob. Reports courteens Case D. 50. 17. 192. 1. D 48. 19. 42. Co 3. Inst 212. Bracton lib. 3. c. 6. de generibus poenarum Fleta lib. 1. c. 16. de Actionibus criminalibus Mirror c. 4. sect 12. 1. Of the Parties in Judgment Cap. 22. c. 1. sect 3. 21. H. 6. 29. b. 34. b. 43. Ass Pl. 39. 15. E. 3. Cor. 113. 11. H. 7. 5 Co. 3. Inst 138. Co. 3. Inst f. 9. 19. H. 6. 47. 3. H. 7. 10. Co. 3. Inst f. 138. Co. Liu. 57. b. Co. Inst 20 21. 57. Inst 20 21. Co. 3. Just 138. Co. lib. 4. Vaxxes Case Plowd Com. 476. Saunders's Case Co. lib. 9. Gores Case Co. 2. Iust 138. Co. 3. Inst f. 61. Co. 3. Inst f. 59. 3. 4. P. M. Justice Dalisons Reports 2 3 Eliz. Dyer f. 128. Dyer f. 186. Co. lib. 4. f. 44. a. Co. 3. Inst f. 59. 72. 7. E. 6. Dyer 88. Reg. 1. Dyer 16. Eliz. 332. a. Saunders case Co. 3. Inst f. 20 139. Reg. 2. Co. 3. Inst 114. 3. H. 7. 1. 6. 12. 6. Co. lib. 4. Syers case Co. lib. 4. Syers case Cro. 1. part Goss v. Byby f. 541. Co. lib. 4. Bibithes Case Of Clergy Co. 3. Inst f. 39. Reg. 3. 9. H. 7. 19. b. Co. 3. Inst f. 231. B. 50. 17. 178. Alciolus Qâ— 1. Resp Co. 2. Inst f. 183. 26 Ass plâ— 47 Co 3. Inst f. 139 Mich 11 12 Eliz the case of Roberts the ttorney 2 Of the Assistants 2 H 4 〈◊〉 10 26 Ass pl 24 Co. lib. 6. f 14 Arundels case 1. H. 7. 7 22 b. Doctor Stud lib. 2. c. 4â— Co 3. Inst 29. 3 Of the Judge Co Lit. 226. a. lib. 4 H. ydons case 92 a. lib. 9. Dowmans case s 13 a. Co Lit 155 b 272 a 78 b Seat 2.11 〈◊〉 Stat. 2â— Co. Lit. 226. a. Co. lib. 9. f. 13. a. Dowmans Case Co. Lit. f. 226. b. Co. 3. Inst f. 1â—7 Co. 3. Inst s 29. Co. 3. Inst 29. Co. Lib. 9. Dowmans Case 13. a. 2. E. 4. 14. 18. E. 4. 104punc 23. Ass Pâ— 19. Co. Litt. 391. a. Co. 2. Inst f. 22. 1. Of Accasations Appeal Co. Litt. 123. b. 126. b. Co. Litt. 287. b. Cro. 3. part Soâ—tley v. Price 247. Co. Litt. 33. b. Co. Litt. 33. b. West 2. c. 34. Co. Litt. 33. b. 37. a. Co. 3. Inst f. 215 35. H. 6. 63. eâ— The Hâ—oiâ—ns Law b. 5. ct 1. smaH 4. 41 The woman Lawer lib. 1. Robbery Co. 3. Inst f. 227. 2. E. 3. Cor. 367 368. 2. Rape 11. 〈◊〉 4. 13. 3. Maihem 21. H. 7. 23. b. 21. H. 7. 40. a. 21. E. 4. 72 73. The womans Lawer lib. 5. sect 2. Co. 2. Inst f. 183. Indictment Co. Litt. f. 126. b. Reg. 1. Rape Murder High treason Mayhem Felony Reg. 2. Cro 〈◊〉 part legesâ—ase â—ase Reg. 3. Reg. 4. Reg. 5. Reg. 6. Reg. 7. Co. Litt. f. 282. a. lib. 9. Mackaleyes Case Co. 3. Inst f. 213. The womans Lawyer lib. 5. sect 13. Co. 3. Inst f. 213. Ibid. Dyer 14. Eliz. 308. Coblans Case Co. 3 Inst f. 213 214. Co. Lib. 4. Holecrostâ—s case Co. lib. 4 fol. 40. a. Co. 3. Inst 213. Co. 3. Inst f. 213. 1. The manner of Arraigning a delixlinquent Co. Litt. 263. a. Co. Litt. 156. b. Co 3. Inst f. 227 228. Co. Litt. â—56 b. Co. Litt. 391. a. Co. 3. Inst â—4 217. Co. Litt. 391. a. Co. 2. Inst 48. Co. 3. Inst 1â—7 229. Co 3. Inst 229. 2. Of the Judgment or Sentence pronounced Co. 2. Inst f. 215 213. Cro. 1. part Ognell v. Paston Cro. 1. part Trussells Case Co. 3 Inst f. 219. Co. Litt. 〈◊〉 2. b. Co. 3. Inst 215. Co. Litt. 390. b. Perkins ss 27. Co. Litt. 390. b 13. a b. Co. Litt. 390. b. Plowd Com. f. 488. b. Cro. 3. part f. 172 173. Perkins â—ect 29. D. 39. 5. 15. D. 39. 6. 7. Co. 3. Inst 211. Co. 3. Inst 19. 26. H. 8. c. 13. 33. 〈◊〉 8. c. 20. 5. 6. E. 6. c. 11. 33. H. 8. c. 20. 5. E. 6. c. 11. Co. lib. 7. Inglefields Case Co. Litt. f. 41. a. 392. a b. Co. 3. Iust 47. 3. Execution of the Judgment pronounced 4. Of the means by which the Judgment or Execution may be avoided in part or in all Co. 3. Inst f. 210. Co. 3. Inst f. 231. Dyer 20. Eliz 135. Co. Lib 6. f. 13 〈◊〉 14 in Arundels Case Co. 〈◊〉 Inst f. 233. Co. Litt. 373. b. 1. The Etymology of the word Pardon Co. 3. Inst f. 233. 2. The Description of a Pardon 3. The Division of Pardons Co. 3. Inst f. 234. 4. The Allowance of Pardons Co. 3. Inst f. 234 235. Cro. 3. partâ— Mints his Case Cro. 1. part Linley's Case 24. 3. Inst 0. 13. 〈…〉 c. 1. 27. Eliz. c. 13. Co. Lib. 7. Sendills Case f. 6. Ibidem Co. Lib. 7. Milbornes Case Cro. 1. part Ridgeley v. Hundred of Warrington 〈◊〉 Cro. 2. part May v. Inhabitants of Hundred de Morley 106. Cro. 1. part Anonymus 753. Cro. 2. part Wait v. Hundred of Stoke f. 496. Co. Lib. 7. f. 6. Senaâ—ls Case Cro. 1. part Greenscâ—se f. 142. Cro. 2. part Reymond v. Hundred de Okinâ— 37 38. Cro. 2. part Foster v. Inhitantes Hundredorum de Spehar f. 675. Cro. 3. part Tutter v. Inhabitants of Daccorar Co. 2. part Andrews v. Hundred of Lewknour 187.