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
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
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
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-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
will in regard of the subjection and obedience she owes to her husband But a woman by her self without the privity of her husband may commit Larceny or other felony to become either principal or accessary As if she steal goods or receive thieves to her house c. and if the husband as soon as he perceives it waive and forsake their company and his own house in this case the womans offence makes not felony in the Baron But if the Baron commit felony his wife not ignorant of it may keep his company still notwithstanding and not be declared accessary Note that a woman cannot be thief of her husbands goods if she take and give them away the Receiver is no felon Whether Larceny can be committed of a thing that is delivered by Replevin If a man seeing the horse of B. in his pasture and having a mind to steal him comes to the Sheriff and pretending the horse to be his obtaineth the horse by Replevin yet this is a felonious and fraudulent taking as it was resolved by the Judges as Catlin Chief Justice reported in the Kings Bench Pasch 15. for the Replevin was obtained in fraudem Legis And fraus Legi fit ubi quod fieri noluit fieri autem non vetuit id fit Whether the removal of things felleo animo from one room to another in the same house can be Larceny The removing of things taken though they be not carried away is Larceny as if a Guest take the coverlet or sheets of his bed and rising before day take the coverlet or sheets out of the chamber where he lay into the Hall to the intent to steal them and went to the stable to fetch his horse and the Hostler apprehended him and this was adjudged Larceny and the coverlet or sheets were carried away to the Hall albeit they were still in the house of the owner So if a mans horse be in the close and one taketh him and as he is carrying him away he is apprehended before he getteh out of the close yet this is sufficient to to make it Larceny Whether Larceny can be commited of personal goods that savour any thing of the Realty Of personal goods if they savour any thing of the Realty no Larceny can be committed as taking apples out of an Orchard growing upon the tree or grass standing on ground c. though they be taken with a felonious intent is not felony for that they are parcel of the freehold But if the owner cut the grass or gather the fruit then Larceny may be committed of them So it is of a Box or Chest with Charters no Larceny can be committed of them because the Charters concerne the Realty and the Box or the Chest though it be of great value yet shall it be of the same nature the Charters be of Et omne majus dignum trahit ad se minus Whether Larceny can be committed of Winding sheets about dead Bodies At the Assizes at Leicester the Case was this One William Haine had in the night digged up the Graves of divers several persons and took the Winding sheets from the Bodies and buried the Bodies again and Sr. Edward Coke advising hereupon for the rareness of the Case consulted with the Judges at Serjeants-Inn in Fleet street where they all resolved That although the dead Body is not capable of any property yet the property of the sheets must be in some body and therefore in the Executors Administrators or other owner of them And according to the Judges resolution he was indicted of felony at the next Assizes but the Jury found it but petit Larceny for which he was whipped as he well deserved Whether a man may commit Larceny of his own goods If a man doth Baile or send his goods to another although he hath the general property yet may he commit Larceny of them by the felonious taking and carrying them away and in Judgment of Law is said in this Case to take the goods of another For the Bailer hath Jus proprietatis and the Bailee hath Jus possessionis or a special property But let us see what the Civil Law saies in such Cases Aliquando etiam suae rei furtum quis committit veluti si debitor rem quam Creditori pignoris causa dedit subtraxerit Si is qui rem commodasset eam rem clam abstulisset furti cum eo agi non potest quia suum recepisset ille commodati liberatus esset Hoc tamen ipsa accipiendum est si nullas retinendo causas is cui commodata res erat habuit Nam si impensas necessarias in rem commodatam fecerat interfuit ejus potius per Retentionem eas servare quam ultro commodati agere Ideoque furti actionem babebit Thus much of Larceny 1. Of Robbery Robbery is saies Coke a felony by the Common Law committed by a violent assault upon the person of another by puting in fear and taking from his person his money or other goods of any value whatsoever Or it is saies another a felonious taking away of another mans goods from his person or presence against his will putting him in fear and of purpose to steal the same goods We call it Roberia Rapina and the Thief Raptor Out of which descriptions the Reader may observe these special circumstances 1. That it is not Robbery unless the party be put in fear as by assault and violence And this circumstance of fear maketh the difference between a Robber and a Cut-purse both take it from the person but this latter takes it clam secrete without assault and putting in fear The latter by violent assault and putting in fear 2. That the word taking necessarily implyeth that the Robber must be in possession of the thing stoln for example If the bag or purse of the true man be fastned to his girdle c. and the Robber more easily to take the bag or purse do cut the girdle whereby the bag or purse falleth to the ground this is not taking for the Thief had never any possession thereof but if the Robber had taken up the bag or purse and in striving had let it fall and never took it again this had been a taking because he had it in his possession for the continuance of his possession is not required by Law 3. Though Robbery is so called because the goods are taken de la robe from the Robe that is from the person yet if the true man seeking to escape for the safeguard of his money cast it into a bush which the Robber perceiving This is a taking in Law from the person because it is done at one time But the Quaere may be Whether the Thieves reception only by such a taking in Law as to make it Robbery It is answered That a Thief 's reception will make
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
murder by Appeal or otherwise shall be out of the County where it is perpetrated And for this cause it was doubted at the Common Law where a stroak were given in one County and death ensued in another how it should be tryed And to avoid this doubt the Stat. of 2. E. 6. was made But it alwaies was clear that a fact in one County ought not to be tryed in another Note the Stat. of 26. H. 8. c. 6. allows that Indictments may be in County's next adjoyning but there is not any mention of Appeals and for this reason Certioraries have been granted to remove Indictments out of the Grand Sessions in Wales 2. Of wrong to the Husband and is by the Wife only of the death of her Husband to be prosecuted Touching this kind of Appeal I propose these Qâ—eries with Resolutions on them Qu. 1. Whether a Wife de facto shall have an Appeal Resp Some do hold and so do I that a Wife de facto shall have an Appeal of the death of her Husband but only she that is Wife de â—ure in fâ—vorem vitae and that there ne unques â—ccouple en loyal Matrimony shall be taken de jure strictly Qu. 2. Whether the Wife can have an Appeal although she cannot have a Writ of Dower Resp The Wife shall have an Appeal where she cannot have a Writ of Dower as if she Elope c. she is barred of her Dower but not of her Appeal and the reason is for that the Stat. barreth her of her Dower but not of her Appeal So if the Husband be attainted of Treason or Petit treason his Wife shall not be endowed and yet if any do kill him the Wife shall have an Appeal for notwithstanding the Attainder he remained her Husband Qu. 3. Whether she ought to be sole and unmarried that brings an Appeal of her Husbands Death Resp It is requisite that she be sole and unmarried that makes this Appeal for if she marry again her Appeal is gone though the new married Husband be dead within the year and day after his death that was slain Qu. 4. Whether the taking of a second Husband after Judgment and before Execution can binder the Execution of the Judgment Resp Not only a Widdow which hath an Appeal hanging abateth her Appeal and loseth it force by new Marriage but also if after Judgment and before Execution she take an Husband she loseth the Execution of the Judgment Qu. 5 What is the true reason why a Woman hath an Appeal de morte Viri Resp The reason wherefore this Action is given to a Widdow is not as Glanvil makes it Quia una cara est vir uxor for then the Baron might have an Appeal de morte uxoris which is never granted but her heir shall have it But the true reason why a Woman hath the Appeal de morte Viri is because by his death she is thought less able to live and maintain her self that therefore when she taketh another Husband cessante causa cessat effectus and her Appeal is gone as la Widdowes Quarentine is determined when she is once remarried 3. Of wrong done to the Appellants themselves as Robbery Rape and Maihem If in an Appeal of Robbery the Plaintiff omit any of the goods stoln they are forfeit to the King for the favour which the Law persumeth the Plaintiff beareth to the Felon and for that he cannot have restitution for more then is in his Appeal If the Jury find in an Appeal of Robbery for goods that the Defendant found them in the High-way in this case the Plaintiff for his false Appeal â—eking the blood of the Innocent shall forfeit his goods to the King If any Virgin Widdow or single Woman be ravished she her self may sue an Appeal of Rape prosecute the Felon to death and the Kings Pardon cannot aid him But if a Feme Covert be ravished she cannot have an Appeal without her Husband as appears 8. H. 4. 21. If a Feme Covert be ravished and consent to the Ravisher the Husband alone may have the Appeal and this by the Stat. of 6. R. 2. c. 6. And the Husband that this Statute speaketh of which may sue the Appeal must be a lawful Husband in Right and possession for ne unques accouple en loyal matrimony is a good Plea against him An Appeal of Maihem was brought by one Milles and the Maihem was assigned in his shoulder and the Defendant demanded the view and it was said that he should not have it because it was done de son tort demesue also it was said that Surgeons may heal and cure him and although he shall be tryed by Inspection of the Court or by Chirurgeons it was held be it one way or other it is peremptory for him c. It was held by all the Justices of the Kings Bench that in an Appeal of Maihem if the Defendant pray that the Maihem may be examined if the Justices or Surveyors which they require be in doubt whether it be a Maihem or not the Judges may refuse the examination and compel the Party to put it upon the Country Thus much of wrong done to the Appellants themselves I shall conclude this Learning touching Appeals with these Queries Qu. 1. Whether all Appeals ought to be sued in proper Person Resp It is answered that all Appeals are to be sued in proper Person and not by Attorney as Appeal of Maihem must be in proper Person A Woman which was Crossement enseint sued this Appeal and the Defendant was attainted the Womans Appearance was recorded for the whole Terme and yet by the better opinion she might not pray Execution by her Councel but ought to come in proper person therefore one of the Judges did ride to Islington to her to see if she were alive and desired Execution which she required and the Defendant had Judgment Qu. 2. Whether an Appeal may be commenced more then one way Resp It is answered that Appeals are commenced two wayes either by Writ or by Bill 1. By Writ when a Writ is purchased out of the Chancery by one Man against another commanding him that he shall appeal a third Man of some felony or other offence by him committed and to find Pledges that he shall do this with effect and this Writ is to be delivered to the Sheriff to be recorded 2. By Bill when a Man of himself giveth his Accusation of another Man in Writing to the Sheriff or Coroner and taketh upon himself the burthen of appealing him that is named in the said Writing And note that there is a diversity worthy of observation betwixt an Appeal by Bill and by Writ for in the Appeal by Original Writ both principals and accessories are generally charged alike without any distinction who be principals and who be accessories but otherwise in the Appeal by Bill Thus much
and an Entry into Religion Resp There is a great difference between an Attainder of treason or felony and an Entry into Religion for he that is attainted of treason or felony hath capacity and may purchase Lands to him and his Heirs but so cannot he that is entered into Religion Qu 2. When a felony is perpetrated whether there be a Discrimination in Law betwixt purchasing of Lands before and after Attainder Resp If a Man commit felony and after purchase Land and then is attainted he has capacity to purchase but not to hold it for in that case the Lord of the fee shall have the Escheat But if a Man attainted of felony purchase Lands in this case the King shall have it by his prerogative and not the Lord of the fee for a Man attainted hath no capacity to purchase but only for the benefit of the King Qu. 3. Whether a Person attainted after a Pardon can have an Action of Battery c. committed before the Pardon Resp If a Person be beaten or maimed or a Woman attainted be ravished after Pardon they shall have an Action of Battery Appeal of Maime or Rape It is to be known that there be two manner of Attainders the one after appearance and that in 3 manners by Confession by Battel or by Verdict the other upon Processe to be outlawed which is an Attainder in Law But upon every one of these Judgment ought to be given otherwise it shall not be said an Attainder Now as upon conviction a Delinquent forfeiteth his good and Chattels so upon Attainder that is by Judgment given his Lands and Tenements are forfeited But touching the forfeiture of Lands there is a diversity betwixt an Attainder of felony by outlawry upon an Appeal and upon an Indictment for in the case of an Appeal of death or other felony Process being awarded against the Defendant and hanging the Process the Defenfendant conveyeth away the Land and after is outlawed the conveyance is good and shall defeat the Lord of his Escheat But if a Man indicted of felony and hanging the Process against him he conveyeth away the Land and and after is outlawed the conveyance shall not in that case prevent the Lord of his Escheat For in the case of the Appeal the Writ containeth no time when the felony was committed and therefore the Escheat can relate but to the outlawry pronounced but the Indictment contriveth the time when the felony was committed and therefore the Escheat upon the outlawry shall relate to that time But note that in case of an Indictment there is also a difference observed for as hath been said it shall refer to the time alledged in the Indictment for avoiding of Estates Charges and Incumbrances made by the Felon after the perpetration but for the mean profits of the Land it shall relate only to the Judgment as well in the case of outlawry as in other Cases There is a Question raised in the Case betwixt Grosse and Gayer viz. Whether an Attainder to a praemunire shall have relation to the offence for the forfeiture of his Lands or only to the time of the Judgment pronounced But the Judges did give no Resolution of it being a point of difficulty Note All the Attainders as to Goods and Chattels shall have relation but unto the Judgment given so that a gift c. made of such Goods by a Felon before the Judgment is good Touching Alienations by a Criminal the Civil Law says thus Post contractum capitale Crimen donationes factae non valent ex constitutione Divorum Severi Antonini Si quis mortis causa donaverit poena fuerit capitis affectus removetur donation ut imperfecta quamvis caeterae donationes sine suspitione poenae factae valeant Having shew'd the Law touching Alienations I shall present to the Reader 's view the things imply'd at this day both in the Judgment of Treason and Felony 1. In the Judgment of High Treason In the Judgment relating to Crimen laesae Majestatis is imply'd at this day First the forfeiture of all the Traitors Mannors Lands Tenements and Hereditaments in Fee simple or in Fee Tayle of whomsoever they be holden Also of Rent-Charges Rents seck Commons Corodys and other Hereditaments which are not holden for in case of High treason the Tenure is not material Also of Uses Conditions unless inseparably knit to the Person of Rights of Entry of Lands in the Right of the wife during the Coverture of the profits of Land which the delinquent hath for life during his life of trusts in Chattels Reals but not of Freehold Cro. 2. part f. 512. Pl. 23. vid. Andersons Reports Inglefeilds Case Co. lih 12. f. 6. Dyer 288. b 289. a. Note that Rights of Actions where the Entry is taken away are not forfeitable Secondly his Wife to lose her Dower Thirdly he shall lose his Children for they become base and ignoble Fourthly he shall lose his Posterity for his Blood is stained and corrupted and they cannot inherit to him or any other Ancestor Fifthly all his Goods and Chahttels are forfeited c. and reason is says Coke his Body Lands Goods Posterity c. should be torn pulled asunder and destroy'd that intended to tear and destroy the Majesty of Government 2. In Judgement of Felony A felon impliedly is punished in these particulars 1. He doth lose his Children that they shall become base and ignoble 2. He shall lose his Posterity for his blood is stained and corrupted that they cannot inherit unto him or any other Ancestor 3. He shall forfeit all his Lands and Tenements which he hath in Fee and which he hath in taile during his life 4. All his Goods and Chattels Note that before the Stat. 1. E. 6 c. 2 5. E. 6. c. 11. the Wife of a Person attainted of Misprision of treason Murder or Felony losed her Dower but since she is dowable by these Statutes Hitherto of the Judgment or Sentence it self In doing of Execution both in Treason and Felony two things are worthy of the Reader 's notice Co. 3 Inst f. 52. 211. 212. 1. That it be done by the right Officer as the Sheriff or Marshal for if any other execute offendours it is felony Execution must be made by the Sheriff or Marshal according to the Judgment for it is a maxime in the Law of England Non alio modo puniatur quis quam secundum quod se habeat Condemnatio Punishment may be avoided or escaped in part or totally either 1. By the means of Justice as By Writ of Error or Falsifying the Attainder 〈◊〉 2. By the means of Mercy as By the Kings Pardon or By Restitution of these in their order 2. Of Writs of Error If the Judgment be erronious both the Judgment and Execution thereupon and all the former proceedings shall be reversed by Writ of Error but if the the former