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
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
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
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
No Goods be forfeited untill it be lawfully found by the Oath of Twelve men that he is Felo de se And this doth belong to the Coroner super visum Corporis to enquire thereof and if it be found before the Coroner super visum Corporis that he was Felo de se the Executors or Administrators of the dead shall have no Traverse thereunto And this is the reason that no man can prescribe to have Felons goods because they are not forfeited untill it be found of Record that he is Felo de se How a Felo de se shall be enquired of where the body cannot be found If a man be Felo de se Resp and is cast into the Sea or otherwise so secretly hidden as the Coroner cannot have the view of the body and by consequence cannot enquire thereof In this case it may be inquired thereof by the Justices of Peace of that County for they have power by their Commission to inquire of all Felonies But if it be found before them the Executors or Administrators of the dead may have a Traverse thereunto but not to the Indictment taken before the Coroner super visum corporis as before is said Whether a joynt Tenant of Chattels personals becoming Felo de se doth forfeit the whole There is a diversity between Chattels personals in Action and in possession for if a debt be owing to two unless it be in case of Joynt-Merchants and the one is Felo de se he doth forfeit the whole but otherwise it is of goods in possession for there he forfeiteth but his part Whether a debt upon a bare Contract be forfeitable If a man that is Felo de se has a debt upon a bare contract and not upon specialty this shall not be forfeited unto the King Thus much of Felo de se 2. Of Murder in respect of another Bracton defineth this kind of Murder to be Homicidium quod nullo praesente nullo sciente nullo audiente nullo vidente clam perpetratur And of the same mind is Britton whose words are Murdre est occision de home disconu feloniousment fait dount home ne poit scaver per qui ne per quex As also Fleta Est murdrum occulta hominum occisio a manibus hominum nequiter perpetrata que nullo sciente vel vidente facta est preter solum Interfectorem suos coadjutores fautores yet Fleta saith also that it was not murder except it were proved that the party slain were English and no stranger But as Stamford s aith the Law in this point hath received an alteration by the Stat. of 14. E. 3. And therefore this murder is now otherwise to be defined or described It is when a Reasonable Creature be it man woman child Subject born or Alien persons outlawed or otherwise attainted of Treason Felony or premunire Christian Jew Heathen Turk or other Infidel being under the Kings peace is slain or killed by a man of sound memory and of the age of discretion with malice forethought either expressed by the party or implied by Law Touching the former viz. Malice expressed take these Queries with their Solutions Whether this same malice though it be intended against one it shall be extended towards another This Malice is so odious in Law as though it be intended against one it shall be extended towards another And therefore Bracton's words are siquis unum percusserit cum alium percutere vellet in felonia tenetur As if A. put poyson into a pot to the intent to poyson B. and set the same in a place where he supposeth B. will come and drink thereof and by accident one C. unto whom A. hath no malice cometh and of his own will taketh the pot and drinketh thereof of which poyson he dyeth This is murder in A. for the Law doth couple the event with the intention and the end with the cause But herein is a diversity between the principal and the Accessory For if A. command B. to kill I. S. and B. killeth I. D. mistaking him for I. S. this is murder in B. because he did the Act which sprang out of the Root of malice but A. is not Accessory because his own commandment was not pursued But on the other side if A. command B. to kill I. S. by poyson and he doth it by violence as by weapon sharpe or blunt Gun Cross-bow Crushing c in this case notwithstanding the fact be not executed according to the mean prescribed yet A. is Accessory nevertheless for the commandment was to kill which ensued though the mean was not followed Whether killing a man by poyson be more detestable than by any other means To kill a man by poyson sayes Coke is the most detestable of all because it is most horrible and fearful to the nature of man and of all others can be least prevented either by Manhood or providence This offence was so odious that by Act of Parliament it was made High Treason and it inflicted a more grievous and lingring death than the common Law prescribed viz. That the Offendor shall be boyled to death in hot water upon which Statute Margaret Davy a young woman was attainted of High Treason for povsoning her Mistress and some others was boyled to death in Smithfield the Seventeenth of March in the same year But this Act was afterwards repealed by 1. E. 6. c. 12. and 1. Mar. c. 1. Having given you the words of Sir Edward Coke touching poysoning I shall mention something in the civil Law concerning it Plus est hominem extinguere veneno quam occidere gladio For Clam interficere sayes Gothofredus on the Text gravius est quam palam Plus est hominem veneno extinguere quam gladio occidere Lege Cornelia veneficij Capite damnantur qui artibus odiosis tam venenis quam susurris magicis homines occiderint vel mala medicamenta publice vendiderint Whether an Infant within the age of Nine years can be guilty of Murder Vn Infant deins age ix ans occist un Enfant de ix ans Confesse le Felony auxi fuit trove que quant il luy avoit tue il luy occult auxi le Sanke que fuit sur luy effundes si il ceo cxcuse And the Judges held that he ought to be hanged But Fairefax said that the words of Fortescue were viz. That the Reason why a person is executed for Murder is for example that others may fear to offend But such punishment can be no example to such an Infant or to a person that hath not discretion Le Recorder de Londres monstre coment un enfant entra le age de x. ans xii ans suit endite de mort il fuit appose de ceo il dit que il gard barbettes ove cestuy que est mort
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