William Wallers Case f. 373 374. the Justices in the Kings Bench Chancery and Common Bench judicially sitting to hear Causes made an assault and affray upon Sr Thomas Reignolds and beat him in disturbance of the Law and contempt of the King c. and upon this being arraigned and found guilty because the Indictment was not that he did it in presence of the Justices nor in the presence of the King all the Judges agreed that the Judgment of cutting off his hand should not be given and so seriatim they delivered their opinions But because this offence was in the Palace neer the Hall door whereby tumults might have been made and because it was found sitting all the Courts and in disturbance of Justice and Law and in contempt of the King the Court awarded that he should be imprisoned for the said offence during the Kings pleasure and should pay 1000 pounds fine Thus much where the King is present by Representation If any strikes in the Kings Palace 33. H. 8. c. 12. where the Kings Royal Person resideth he shall not lose his right hand unless he draw blood but if he draw blood then his right hand shall be strucken off he perpetually imprisoned and fined and ransomed By what hath been said a Man may perceive a great differenee between a blow or stroke in or before the said Courts of Justice where the King is representatively present and the Kings Courts where his Royal Person resideth for in the Kings House blood must be drawn which needeth not in or before the Courts of Justice when the Judges are doing of that which to Justice appertaineth and the reason is Quia Justitia firmatur Solium 7. Routs A Rout is when People do assemble themselves together and after do proceed or rid or go forth or do move by the instigation of one or more who is their Leader This is called a Rout because they do move and proceed in Routs and members Also where many assemble themselves together upon their own common Quarrel and brawles as if the Inhabitants of a Town will gather themselves together to break hedges pales or such like to have Common there or to beat another that hath done to them a common displeasure Co. 3. Inst 176. Lamb. lib. 2. c. 5. or such like that is a Rout and against the Law although they have not done or put in execution their mischievous intent if so be they do go ride or move forward after their first meeting Note that there is diversity between committing of a great Rout or the like and Levying of War for example as if three or four or more do rise to burn or put down an Inclosure in Dale Co. 3 Inst f. 9 10. which the Lord of the Mannour of Dale hath made there in that particular place this or the like is a Rout a Riot or an unlawfull Affembly and no Treason But if they have risen of purpose to alter Religion established within the Realm or Laws or to go from Town to Town generally and to cast down Enclosures this is a Levying of War though there be no great number of Conspiratours within the perview of the Statute of 25. E. 3. c. 2. because the Pretence is publique and general and not private in particular As it was resolved Pasch 39. Eliz. by all the Judges of England in the case of Richard Bradshaw Miller Robert Burton Mason and others of Oxfordshire 8. Riot Riot in Latine Riotum cometh of the French word Rioter id est Rixari Co. 3. Inst f. 176. and in the Common Law signifieth when three or more do an unlawful Act as to beat any Man or to hunt in his Park chase or warren or to enter or to take possession of another Mans Land or to cut or destroy his corn grasse or other profit c. By the Statute of 17. R. 2. and 13. H 4. 17. R. 2. c. 8.13 H 4. c. 7. the Justices of Peace and Sheriff are to arrest those that commit Riot and to record that which they find done in their presence against the Law Each Man that is able 2. H. 5.8 ought to help to repress Riots upon pain of Imprisonment and to make fine to the King Evans and Cottington and 7. others were indicted for a Grand Riot that they with others there named to the number of 1000. persons made a Rescous and assault upon Henry Smith a Baylif who by virtue of a Warrant upon a Bill of Middlesex against William Cleer had arrested him and was carrying him to Prison and they procured him to escape The Arrest was at Charing Cross in the Parish of St. Martins aad after the Arrest they assaulted the Bayliffes and beat them and the Bayliffes putting the Prisoner into an house for safe keeping against the tumult they assaulted the house and notwithstanding a Justice of Peace assisted with three Constables made proclamation for keeping the Peace and for their departure yet they continued their assault breaking open the house and with ladders taken from the Kings House of White-Hall where the King with His Court was resident upon the 24. of March 13 Car. in the afternoon of the said day made this Riot and Rescous and carryed the Prisoner away through the Kings House and caused him to escape Upon this Indictment 9. of them being arrested pleaded Not-guilty and 4. of them viz. Evans Cottington Groom and Heatly being arraigned were found guilty and 5 of them were found Not-guilty but against three of them was probable evidence that they were aiding to this Riot and Rescous but the Jury acquitted them wherefore because it was so great a Riot and offence being committed so neer the Court it was adjudged that the said four persons which were so convicted should be committed to Prison and every one of them should pay 500. pounds fine to the King And that every of them should stand on the Pillory at Westminster and Charing Cross where the Riot was done and that Thomas Groom who was a Cobler and entered into the house with a drawn sword and a kettle upon his head as an helmet to defend himself should stand on the Pillory with a sword in his hand and a kettle upon his head and should be bound with good secuties for their good behaviour before they should be delivered And the three which were acquitted against whom there was such probable evidence were bound to find securities for their good behaviour Note Co. 3. Inst f. 176. An unlawful Assembly is when three or more assemble themselves together to commit a Riot or Rout and do it not One or more sayes the Lord Coke may commit a force Co. Litt. 257 a. Co. 3. Inst f. 176. three or more may commit an unlawful Assembly a Riot or a Rout A multitude as Some have said must be ten or more Multitudinem decem faciunt And so said they it is said de grege hominum But Coke tells
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 158 159 How many sorts of Pardons there be Ib. Where a Writ of Allowance is necessary to a Pardon and where not Ib. 160 Rape c. 83 84 Riots The Description of a Riots and its derivation 101 Stat. touching Riots Ibid. What number of Persons may commit a Riot a Rout ad unlawful Assembly 103 Robbery 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 Wartomake it Treason 82 83 To go in Warlike manner with a multitude to assault a Privy Councellor at his House is Treason Ibid. The breaking of a Prison wherein Traitors be in Durance and causing them to escape is High Treason though the Parties did not know there were any Traitors there Ib. There must be Levying of War de facto to make it Treason Ib. What shall be said an adhering to the Kings Enemies to make a Treas within the Stat. of 25. E. 3. 83 84 Where a conspiracy with a Foreign Prince shall be Treason and where not 84 85 The aiding and succouring a Rebel beyond Seas is no Treason Ibid. Who shall be said Enemies and who Traitors Ibid. To counterfeit the Great-Seal or Mony is Treason Ib. Forging the Kings Coyn without uttering it is High Treason 85 86 Bringing into the Realm counterfeit Coyn High Treason 87 By the Antient Law a Mad-Man might be guilty of High Treason 88 Where a Non compos mentis cannot be guilty of High Treason at this day Ib. What Aliens may commit 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.
Jac. in the County of Leicester who being a yong strong and lusty rogue to make himself impotent thereby to have the more colour to beg or to be relieved without putting himself to any labor caused his Companion to strike off his left hand and both of them were indicted fined and ransomed therefore and that by the opinion of the rest of the Justices for the members of every subject are under the safeguard and protection of the King to the end that they may serve the King when occasion shall be offred and therefore not in the power of a subject to maim or hurt his own body or limbs or to cause another to do it And this is agreable to the Civil Law Nemo membrorum suorum est dominus Liber homo suo nomine utilem aquiliae habet actionem directam enim non habet quoniam dominio membrooum suorum nemo videtur D. 9.2.13 By the ancient Law of England he that maimed any man whereby he lost any part of his body the Defendant should loose the like part Co. 3. Instit 118. as he that took away another mans life should loose his own And this was grounded upon the Law of God Levit 24. v. 18 19.20 Deut. 19. v. 21. It is called among the Latines Lex Talionis or Reparationis among the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 per quam quis patitur quod alteri fecit This offence of May 'em is under all felonies deserving death Co. Litt. 127. a. and above all other inferiour offences so as it may be truly said of it that it is Inter crimina majora minimum inter minora maximum Rape 3 Of Rape is the violent deflouring of a Woman against her will and this offence is felony as well in the principal as in his Aiders Vide 11. Hen. 4. c. 13.1 E. 4. c. 1. West 2. c. 13. Cromptons Justice of Peace f. 43 44. But my Lord Coke defines it thus It is when a man hath carnal knowledge of a woman by force and against her will Co. Litt. 123. b. or Rape is felony by the Common-Law declared by Parliament for the unlawful and carnal knowledg and abuse of any woman above the age of ten years against her will Co. 3. Instit f. 60. or of a woman child under the age of ten years with her will and the offender shall not have the benefit of Clergy Vide 18. Eliz. c. 6. If the party that is ravished Stamf. 24. conceive by the Ravisher a child at the time of the Ravishment this is no Rape because she could not conceive unless she assent Bracton in 24th chapter of his third book sheweth that by the Antique Law of King Athelstan He that meeting a Virgin sole or with company did but touch her unhonestly was guilty of breaking the Kings Edict If against her will he threw her on the ground he lost the Kings favour if he discovered her and cast himself upon her he lost all his possessions if he lay with her he suffereth Judgement of life and member yea if he were an Horse-man his horse lost his tail and main His hawk likewise lost her beak Tallons and train And the Virgin had in recompense all his Land and money by the Kings Warrant This was in the King Athestans dayes But in Bractons time it seemeth that these kind of Ravishers were other wise punished they lost their eyes and privy members Co. Litt. 123. b. 29. H. 6. Tit. Coron 17. Bracton lib. 3. f. 147. The Civil Law D. 48.6.6 Punitur Lege Julia de vi publica qui puerum vel foeminam vel quemquam per vim stupraverit Hitherto of the offences that touch the body and members viz. Battery Mayhem and Rape 3. Of those Offences that dispoil men of their property Those Crimes or Pleas of the Crown that deprive others of their property are two § Furtum or Theft and Burning of Houses 1. Of Theft In Theft are to be considered 3. things the Etymology of the word Furtum the definition and its several kinds Furtum a furvo id est 1. The Etymology nigro dictum Labeo ait quod clam obscuro fiat plerumque nocte vel a frraude ut Sabinus ait vel a ferendo auferendo b. 47.2 1. Just 4.1 2. vel a Groeco sermone qui 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 appellant fures Imo Graeci 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 id est a ferendo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dixerunt Bracton thus defines it 1. The definition Furtum est secundum Leges contrectatio rei alienoe fraudulenta cum animo furandi invito illo Domino eujus res illa fuerit Lib 3. f. 150. The Civilians thus Just 4 1.1 D. 4.7.2.1.3 Furtum est contrectatio fraudulosa lucri faciendi gratia vel ipsius rei vel etiam usus ejus possession sve quod lege naturali prohitum est admittere That Theft is forbidden by the Law of nature is manifest by these Authors 1. Cicero In vita sibi quemque petere quod pertineat ad usum non iniquum est alteri surripere jus non est Theft generally taken 3 Its species or kinds doth comprehend Larceny Robbery Burglary and Pyracy of these in order 1. Of Larceny Larceny by the Common Law is the felonious and fraudulent taking and carrying away by any man or woman Co. 3. Inst 107. of the meer personal goods of another neither from the person nor by night in the house of the owner This Larceny is twofold the one so called Simply and the other Petit or Little Larceny The first is where the thing stollen exceeds the value of 12. pence and that is felony The other which is called little or petit Larceny is where the thing stollen doth not exceed the value of 12. pence and that is not felony From the Description and Division of Larceny I proceed to propose these following Queries with Resolutions on them Whether Larceny can be committed Quaest where there is a Bailement or Delivery by the owner of the thing Larceny is perpetrated by an actual taking Resp for an Indictment Quod felonice abduxit is not good because it wanteth coepit By taking and not Bailement or delivery for that is a Receipt and not a taking and therewith agreeth Glanvil Lib. 10. c. 13. Furtum non est ubi initium habet detentionis per dominum rei But this Rule of Glanvil has its exceptions as appears by these Cases in our Law Co. 3. Inst 107.13 E. 4.9 If a Carryer hath a bale or pack of Merchandise delivered unto him to carry it to an appointed place and after he take the whole pack animo furandi this is Larceny for the delivery had taken his effect and the privity of the Bailement is determined so if he open the pack and take any thing out * Furtum sine assectu furandi non committitur Just 4.1.7
parts of the Exchequer which were before of antient building and weak The punishment of this crime in the Civil Law is this Peculatus poena aquae ignis interdictionem in quam hodie successit deportatio continet Porro qui in eum statum deducitur sicut omnia pristina jura ita bona amittit 4. Bribery Bribery sayes Coke is a great Misprision Crimen Repetundarum when any man in Judicial place takes any Fee or Pension Robe or Livery Gift Reward or Brocage of any person that hath to do before him any way for doing his Office or by colour of his Office but of the King only unless it be of meat and drink and that of small value upon divers and grevious punishments Having given you a description of Bribery I propose these Queries with Resolutions upon them and then shew what the Civil Law saith touching Bribery and Reward Whether Bribery can be committed Quaest although there be no suit depending in foro contentioso Bribery may be committed not only when a Suit dependeth in foro contentioso Resp but also when any in Judicial place doth any thing virtute or colore Officii though there be no Suit at all For example Co. 3. Inst f. 148. if the Lord Treasurer for any gift or brocage shall make any Customer Controller or any Officer or Minister of the King this is Bribery for he ought to take nothing in that Case Laws made contra Ambitus by the Statutes of 12. R. 2. c 2.5 E. 6.5.6 Co. Litt. f. 234. a. Co. 3. Inst f. 154. Hobarts Reports Roy v. Bishop of Norwich f. 75. but that he make all such Officers and Ministers of the best and most lawfull Men and sufficient for their estimation and knowledg These Laws aforementioned made contra crimen Ambitus are worthy to be known by all but more worthy to be put in execution for they prevent Bribery and extortion They that buy will sell Whether this offence of Bribery can be perpetrated Qu. 2. by one that hath a Judicial place in the Ecclesiastical Court The Statute of 5 E. 6. c. 16. Resp doth extend as well to Ecclesiastical Office as temporal which concern the Administration and execution of Justice Co 3. Inst 148. Cro. 2. part Trevons Case f. 269. and therefore any Chief Judicial Officer Ecclesiastical taking any thing virtute or colore Officii for any Office Ministerial or Judicial is guilty of Bribery Touching Gifts and Bribery take notice what the Civil Law sayes Non in totum Xeniis abstinere debebit Proconsul sed modum adjicere 1. De Xeniis ut neque morose in tetum abstineat neque avare modum Xeniorum excedat quam rem Divus Severus Imperator Antonius elegantissime epistola sunt moderati D. 4.16.6.3 cujus epistolae verba haec sunt Quantum ad Xenia pertinet Audi quid sentimus Vetus proverbium est neque omnia neque quovis tempore neque ab omnibus Nam valde inhumanum est a nemine accipere sed passim vilissimum est omnia avarissimum Imo non est inhumanum Nam munera excoecant oculos sapientum ac pervertunt verba Justorum verum hic agitur saies Gothofre dus de muneribus quae dantur Proconsuli ut hospiti non ut Judici Et hic aperte Xenia ut appellat quoque hic Jurisconsultus Xeniola distinguntur a dono munere seu munerum qualitate Aliud ii est munus aliud Xenion Xeniolon Lege Julia repetundarum tenetur 2. De Repetundis D. 48.11.3 D. 48.11.9 qui cum aliquam potestatem haberet pecuniam ob judicandum decernendumque acceperit Qui munus publice mandatum accepta pecunia rumperunt crimine repetundarum postulantur 5. Extortion Extortion is a Misprision by wresting or unlawfully taking by any Officer by Colour of his Office any money or valuable thing of or from any Man either that is not due or more then is or before it be due Quod non est debitum Co. Litt. 368. b. vel quod est ultra debitum vel ante tempus quod est debitum Of this crime it is said that in no other than Robbery and another saith that it is more odious than Robbery Co. Lit. 368. b. for Robbery is apparent and hath a face of a crime but extortion puts on the vizor of vertue for expedition of Justice and the like and it is ever accompany'd with that grevious sin of perjury we call it in Latin Crimen expilationis seu concussionis But the Quaere may be whether Extortion and Exaction are all one It is answered They are not for there is this difference taken between Exaction and Extortion Extortion is where an Officer demandeth and wresteth a greater summe or reward than his just Fee And Exaction is where an Officer or other Man demandeth and wresteth a Fee or reward where no Fee or reward is due at all 6. Striking in the Kings Courts where he resides personally or by Representation If any Man in Westminster Hall Co. 3. Inst f. 140. or in any other Place sitting the Courts of Chancery the Kings Bench the Common Bench the Exchequer or before Justices of Assize or Justices of Oyer Terminer shall draw a weapon upon a Judge or Justice though he strike not this is a great Misprision for the which he shall loss his right hand 12. E. 3.13 and forfeit his Lands and goods and his Body to perpetual imprisonment The reason is because it tendeth ad impedimentum Legis terre So it is if in Westminster Hall or any other Place sitting the said Courts there or before Justices of Assize or Oyer and Terminer and within the view of the same a Man doth strike a Jury 3. Eliz. Dyer 188. or any other with weapon hand shoulder elbow or foot he shall have the like punishment but in that case if he make an assault and strike not the offender shall not have the like punishment One Peter Cary was indicted for drawing his sword in Aula Westm sedentibus Curiis Cro. 1. part Cary's Case 405. and in disturbing the Sheriff in making an Arrest upon one T. by force of a Bill of Middlesex and being arraigned and found guilty had Judgment of perpetual Imprisonment and to pay one hundred pounds to the Queen And note that upon the evidence it appeared to be upon the stairs ascending the Court of Wards and so out of the view of the Courts But Popham said although it were out of the view of the Courts yet if the Indictment had been as it ought to have been viz coram Domina Regina the Judgment should have been that his right hand should have been cut off and that he should forfeit all his Lands and Chattels and have perpetual Imprisonment Sr William Waller was indicted for that he in the Palace of Westminster neer the Great Hall Cro. 3. part Sr.