nothing for that they be discharged of their charge and seruices which they did hold by which was as much as they receiued of the tenant perauaile And if they held of the King by lesse rent than their tenant perauaile held of them they shall haue the surplusage of that which was holden of them of the king by the way of petition Fitz. Assise 124. Fitz. Petition 19. And if the king doe not kéepe the land so escheated vnto him in his hands but will assure it to another hée must reuiue the tenure in the Mesne Lord to hold of them of whom it was holden before the attainder It appeareth by the statute of Praerogatiua Regis cap. 12. That the Kings and whole Court of Parliaments meaning was at that time when it was published and established by Parliament which were the Prerogatiues royall annexed to the Crowne of England by the common law That of such lands as did escheat to the King the seruice of the Lord of the fée should be reserued for the words of the Statute bee these viz. St. 17. Ed. 2. 12. The King shall haue escheat of the lands of Normans to whose sée soeuer they belong Sauing the seruice appertayning to the chiefe Lordes of the same Fée And King Henrie the third gaue the Escheates of Normans landes to bee holden of the chiefe Lordes of the Fee by Seruices and Customs due and accustomed thereunto Some of which Normans dwelling in Normandie at that time had lands in England and were subiects to the King of England and did forsake their obedience to the King of England and became subiects to the K. of Fraunce the King of Englands enemie and therby did forfeit those lands which they had in England by the common law and they did escheat to the king 48 In Petit Treason Who shal haue the forf in petit treason and felony and Felony the king shal not haue the escheat of the offendors land vnlesse it be holden immediatly of him but the king shal haue the profits of the said offendors land by the space of a yeare and a day and the land shall be wasted and destroyed in the houses woods and gardeins and in all things belonging to the same and then it shall bee deliuered to the chiefe Lord of the fée of whom the same land is immediatly holden And yet in some cases the King shall haue the forfeiture of the land of him which doth commit Petit Treason or Felonie though the land be holden of others and not of him St. 17. E. 2. 14. as it appeareth by the Statute of Praerogatiua Regis which hath ordained That the king shall haue the escheates of lands of Archbishops and Bishops fréeholders when such tenants be attainted of Felony committed in time of vacation whilest their temporalties were in the Kings hands to bestow in what sort it shall please him Sauing to such Prelats the seruice that to them is due and accustomed And therefore sauing in the cases aforesaid the mesne Lords of whom the lands be immediatly holden shall haue their escheats of their fréeholders lands that haue committed Petit Treason or Felonie which land after the King hath hath had the yere day and wast thereof they must haue deliuered vnto them out of the kings hands by suing out of a writ S. Br. 39. 49 If any stranger The Lords remedy for lands escheated vnto him or other sauing the King doth intrude into that land whereof the felon attainted was seised at the time of the felony committed the immediat Lord of the fée of whom the same land is holden may enter vpon him and put him out or else he may haue his writ of Escheat against him In the which writ he must rehearse the iudgement giuen against the person attainted viz. if he were attainted by outlawrie to alledge Eo quod praedictus A. feloniam fecit pro qua vtlagatus fuit and if he were attainted by abiuration to say Pro qua regnum nostrum abiurauit and if he were attainted by confession or verdict to say Pro qua suspensus fuit and if hee doe alledge one of those iudgements Fitz. Escheat 14. Fitz. Escheat 8. Fitz. Escheat 6. in the stead of another his writ shall abate And yet he néed not rehearse the manner of the felonie in his writ nor in his count but generally that he committed felonie And though there be error in the iudgement yet the Lord shall haue a writ of Escheat and the tenant shall not falsifie the iudgement by the errour 46. E. 3. 4. 50 Island escheat to the auncestor The heirs remedie for land escheated to his auncestor because his tenant was attainted of felonie and the auncestor dyeth before he doth bring his writ of Escheat or doth enter In this case the heire may haue a writ of Escheat and suppose that the partie attainted did hold of his auncestor Fitz. Escheat 17. 51 If a lease of land be made for the terme of life reseruing to the lessor a rent and the lessor payeth his seruices to the chiefe Lord and then the lessor is attainted of felonie Where the Lord shall haue his writ of Escheat and where he may enter and after the tenant for terme of life dyeth In this case the Lord paramount may haue a writ of escheat of the land for the rent which was reserued vpon the lease doth come in stead of the land and so in the consturction of law he died seised of the land But if no rent had béen reserued the Lord might haue entred into the land as escheated vnto him 6. H. 7. 9. but could not haue recouered it by a writ of Escheat no more than if his tenant being disseised had bin attainted of felony in which case his only remedy is to enter The forme of a 〈◊〉 of Escheat 52 This is the forme of the writ of Escheat Rex vicecomiti B. salutem Praecipe A. quod iuste sine dilatione reddat B. decem acras terrae cum pertinentijs in N. quas C de eò tenuit quae ad ipsum B. reuerti debent tanquam Escaeta sua eò quod praedict ' C. feloniam fecit pro qua suspensus fuit vt dicitur Vel pro qua vtlagatus fuit vt dicitur vel pro qua regnum abiurauit vt dicitur Et nisi c. And though the indictment was executed in other maner than is rehearsed in the writ yet the writ shall not abate Register fo 165. as if he were Decapitatus non suspensus for the execution of the iudgement is not material so that he had such a iudgement for the action is true though the writ be not true The K. remedie for land escheated to him 53 In all cases of felony if the king ought to haue the escheat he must haue an office found for him before he can enter for vntill the office found the king hath but a
persons vnlawfully assembled Then euery person which so being able and required doth willingly and obstinatly refuse so to doe shal suffer imprisonment for one yeare without baile or mainprise And as in al the cases aforesaid euery able person is bound vpon request to assist the Iustices shirifes other the Kings officers to pursue apprehend arrest and imprison Manquellors robbers felons or other disturbers of the peace and so to do his whole endeuor to be a conseruator of the peace of the Realme Euerie person must assist to execute the K. Writ In like sort is euery able person bound by the common law and by the Stat. of Westm̄ 1. Westm̄ 2. to be attendant vpon the Shirife St. 3. E. 1. 17. S. 13. E. 1. 39. or vndershirife in the execution of the kings writs and by that meanes to be a supporter of the justice of the Realme These offēces punishable in the Starre Chamber 86 Menaces assaults batteries imprisonments and maihems committed by some persons to some persons at some times in some places in some manner forme sort and with some circumstances besides the penalties aforesaid inflicted vpon the offendors therein are also punishable in the Kings high Court of the Starre chamber as other offences hereafter mentioned be as it doth more at large appeare in Oppressions 35. ¶ Of Riots Routs vnlawful and rebellious Assemblies RIots Routs The enormitie of Riots vnlawfull Rebellious assemblies haue bin so many times pernitious fatal enemies to this kingdom the peace tranquillity thereof haue so often shaken the foundation and put in hazard the very forme and state of gouernment of the same that our lawmakers haue béen enforced to deuise from age to age one law vpon an other one stat after another for the repressing punishing of them haue endeuoured by all their wits to snib the sprouts quench the very first sparkes of them as euery man may easily perceiue there was cause thereof who will looke back and call to his remembrance what that small Riot begun at Dartmouth in Kent in the raigne of King Richard the second betwéen the collector of a subsidy and a Tyler and his wife about the payment of one poore great did come vnto which being not repressed in time did grow to so great a rebelliō that after it put in hazard the life of the K. the burning of the Citie of London the ouerthrow of the whole Nobility gentlemen and all the learned of the land and the subuersion of this goodly Monarchy and forme of gouernment Or if they will call to mind the small Riot or quarrell begun in the raigne of King Henry the sixt between a Yeoman of the gard and a seruingman of Richard Neuils Earle of warwick which so farre increased for want of restraint that it was the roote of many wofull tragedies and a meane to bring to vntimely death first Richard Plantagenet Duke of Yorke proclaymed successor to the Crowne and the chiefe pillar of the house of Yorke and after him King Henry the sixt and Prince Edward his sonne the heires of the house of Lancaster and to ruinate with the one or the other of them most of the Péeres great men and gentlemen of the realme besides many thowsands of the common people West 1. 3 E. 1. 32. Sta. 7. Ed. 1. St. 13. E. 1. 6. And therefore King Edward the first did well ordaine That no Shirifes shall suffer Barretors or maintainers of quarrels in their Counties And that to all parliaments Treatises and other assemblies each man shall come peaceably without any armor and that euery man shall haue armor in his house according to his ability to kéepe the peace And King Edward the third prouided Statutes ordained to preuent forces or Riots that no man shall come before the Iustices St. 2. E. 3. 3. St. 5. E. 3. 14. nor goe or ride armed And that suspected lewd and riotous persons shall be arrested and safely kept vntill they be deliuered by the Iustices of Gaole deliuery St. 34. E. 1. 3. Sta. 2. R. 2. 6. And that Iustices of peace shall restraine offendors riotors and all other Barretors and pursue take and chasten them according to their Trespas and offence Sta. 5. R. 2. 6. St. 15. R. 2. 2 St. 7. R. 2. 13 King Richard the second did prohibit Riots Routs and forcible entries into lands that were made in diuers counties and partes of the Realme And that none from thenceforth should make any Riot or Rumor And that no man shall ride armed 20. Rich. 2. 1 nor vse Launcegaies And that no laborer seruant in husbandry or Artificer St. 12. R. 2. 6 or victualer shall weare any buckler sword or dagger And that all the Kings officers shall suppresse and imprison such as make any Riots Routs St. 17. R. 2. 8. or vnlawful assemblies against the peace King Henry the fourth enacted That the Iustices of peace the Shirife shall arrest those which commit any Riot Rout or vnlawfull assembly shall enquire of them and record their offences St. 13. H. 4. 7 King Henry the fift assigned commissioners to enquire of the same Iustices Shirifes defaults in that behalfe St. 2. H. 5. 8. and also limited what punishment offendors attainted of Riot should sustaine King Henry the seauenth ordained Sta. 19. H. 7. that such persons as were returned to enquire of Riots should haue sufficient fréehold or copihold land within the same Shire And that no maintenance should hinder their Inquisition And in the Raigne of Quéene Mary Sta. 1. M. 12. there was a necessary Statute established to restrain and punish vnlawfull and rebellious assemblies raised by a multitude of vnruly persons to commit certaine violent forcible and Riotous acts 2 As the said Lawes Statutes were deuised in seueral ages by the wisedom of the Realme to enquire of and restraine Riots Routs vnlawfull and rebellious assemblies and to checke violences and forces before they should grow to a head So haue our prouident forefathers erected the most honorable Court of Starre chamber The Court of Starre chambers authoritie to punish Riots c. to examine and punish those and other offences when they breake out to extremities viz. to great and haynous Riots or such like enormities thereby to kéepe euery person in awe and so the whole Realme in peace As appeareth by the Statute of Anno 3. H. 7. whereby it is inacted That the Chauncellour and Treasorer of England for the time being and the President of the Kings Councell St. 3. H. 7. 1. Stat. 21. H. 8. 22. and the kéeper of the Kings priuy seale or two of them calling to them a Bishop and a Temporall Lord of the Kings most honorable priuy Councell the two chiefe Iustices of the K. Bench and common place for the time being or other two Iust in their absence vpon bill or information put to
The penaltie for committing of wilfull periurie vnlawfull procurement sinister perswasion or meanes of any others or by their owne Act Consent or Agreement shall wilfully and corruptly commit any manner of wilfull periurie by his or their deposition in any of the Courts before mentioned or béeing examined ad perpetuam rei memoriam Then euerie person or persons offending shall for his or their said offence loose and forfeit twentie pounds to the King and the partie grieued hindered or molested by reason of any of the offences before mentioned that will sue for the same by A. B. P. or I. in any of the Kings courts of Record wherein no W. E. P. or I. shall be allowed and shall haue sixe months imprisonment without Baile or Maineprise And the oath of such person or persons so offending from thenceforth shall not bee receiued in any court of Record within England or Wales or the Marches of the same vntill such time as the iudgement giuen against the said person or persons shall be reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued to recouer his or their dammages against such person and persons as did procure the said iudgement so reuersed to be giuen against thē by action to be sued vpon his case And if the said offendor haue not any goods or cattels to the value of xx l. then he shall be set on the Pillorie in some market place within the shire citie or borough where the said offence shall be committed by the Sherife or his ministers if it be without any citie or towne corporat and if it be within any citie or towne corporat then by the head officer or officers of the same citie or c. or by his or their ministers there shall haue both his eares nailed and from thenceforth be discredited disabled for euer to be sworne in any of the courts of Record aforesaid vntill the iudgement shall be reuersed and thereupon shall recouer his dammages in manner and forme before mentioned In what courts Periurie shall be punished 23 As well the Iudge and Iudges of euery such of the said courts where any such suit is or shall be Sta. 5. El. 9. and whereupon any such periurie is or shal happen to be committed as also the Iustices of Assise and gaole deliuery in their seuerall circuits and the Iustices of the peace in euery countie within this realm or in Wales at their Quarter Sessions both within liberties and without shall haue authoritie by vertue hereof to enquire of all and euery the defaults and offences committed contrarie to this act by inquisition presentment bill or information before them exhibited or otherwise lawfully to heare and determine the same and thereupon to giue iudgement award processe and execution of the same according to the course of the lawes of this Realme Proclamatiō of this Statute 24 The Iustices of Assise of euery circuit within this Realme shal in euery countie within their circuits two times in the yeare St. 5. El. 9. viz. in the time of their sittings make open Proclamation of this Statute or of the effect thereof to the intent that no person shal be ignorant of the penalties herein contained Periurie punished in the spirituall court 25 Prouided that this Act or any thing therein contained St. 5. El. 9. shall not extend to any spirituall or Ecclesiasticall court within this Realme of England or Wales or the Marches of the same but all and euery such offendor and offendors as shall offend in forme aforesaid shall and may be punished by such vsuall and ordinarie lawes as heretofore hath bin and yet be vsed in the said Ecclesiasticall court any thing in this Act c. notwithstanding Periury punishable in the Starchāber 26 Prouided that this Act shall not extend to restraine the power or authoritie giuen by Act of Parliament made An̄ 11. H. 7. Sta. 5. El. 9. St. 11. H. 7. 25. to the Lord Chauncelor and others of the Kings Councel to examine and punish riots routs hainous Periuries and other offences which haue vsed to heare and determine such matters in the Starre-chamber at Westminster nor to restraine the power of the Lord President and Councell in the Marches of Wales or in the North nor of any other Iudge hauing absolute authoritie to punish Periurie before the making of this Statute But But they and euery of them shall procéede in the punishment of all offences heretofore punishable in such wise as they might haue done and vsed to do before the making of this Act to all purposes so that they set not vpon the offendors lesse punishment then is contained in this Act. 27 Because by the said statute of 5. Eliz. 9. there is no Ordinance made for the punishment of those Bankrupts who being sworne and examined vpon Interrogatories by Commissioners thereunto authorized shall commit Periurie Nor for the punishment of those witnesses who either by the procurement of others or by their owne consent shall commit Periurie being examined by the said Commissioners touching Bankrupts goods or debts Therefore by a statute made Anno 1. St. 1. Iac. 15. Iac. it was ordained That it shall be lawfull for the Commissioners authorized vnder the great Seale of England or the greatest part of them to take order with Bankrupts bodies lands tenemēts and hereditaments money goods cattels wares and debts to examine the said offendor or offendors vpon such interrogatories touching the lands tenements goods cattels and debts bils bonds bookes of accompt and such other things as may tend to disclose his her or their estate or the secret graunts cōueyances and eloigning of his her or their landes tenements goods money and debts as they shall thinke méet And if therein the offendor or offendors shall refuse to be examined or to answer fully to euery interrogatorie to him to be ministred by the said Commissioners or the greater part of them it shall be lawfull for the said Commissioners or the greater part of them to commit the said offendor or offendors to some strait or close imprisonment there to remaine vntill he she or they shall better conforme him or her selfe And if vpon his her or their examination it shal appeare that he she or they haue committed any wilfull or corrupt Periurie tending to the hurt or dammage of the creditors of the said Bankrupt Periury punished in Bankrupts to the value of tenne pounds of lawfull money of England or aboue the party so offending shall or may thereof be indited in any of the Kings Courts of Record and being lawfully conuicted therof shall stand vpon the Pillory in some publike place by the space of ij houres and haue one of his eares nailed to the Pillory and cut off And by the same statute of Anno 1. Iac. it is further established That if any person or persons other then the Bankrupt either by subornation vnlawfull procuremēt sinister persuasion
it is specially to bée respected in that case that he hath but a pretenced right or title at the time of his Lease made for if he hath a good title in the same land at the time of the said Lease then is he not within the danger of the said Statute though neither hée himselfe nor any of his auncestors nor any by whom he doth clayme the same land haue béene in possession thereof nor of the reuersion or remainder thereof nor haue taken the rents or profites thereof by the space of one whole yeare before the said Lease made For if a man doe enter into lands that be holden of him for an alienation in Mortmaine Or if hée doe recouer lands by a reall action hée may sell the same land or make a Lease of the same land within a yeare after the Entry or Recouerie though neyther hée nor his auncestors nor they by whom hee claymeth the same land haue béene in possession thereof nor taken the Rents or Profites thereof by the space of one whole yeare before Br. Maint 38 6. E. 6. And so it is if a man doe morgage his Land for diuers yeares vpon condition of repayment of money at a certaine day or vpon any other condition If after hée doe redéeme his Land hée may sell it or Lease it within one yeare after though he hath not béene in possession thereof nor taken the Rents or Profites thereof by the space of many yeares before For the meaning of the Statute is not to restraine the bargaining buying or selling of good and cleare Rights but of pretended Righs and Titles And this pretenced Right or Title is What is a pretenced title when one man is in possession of Lands or Tenements and another man who is out of possession of them doth clayme them or doth sue for them for hée is not aptly sayd to haue title to land who is in possession of the same And therefore if he that is out of possession of land doth bargaine sell or make any Agréement Couenant or Promise to depart from the same land or to make any assurance thereof after hée shall recouer the said Land hee is within the danger of the said Statute whether he hath a good title to the same land or not And so it is if one who hath a pretenced Right or Title to copyhold Lands doth bargaine and sell it to another Co. lib. 4. 26 he is within the compasse and danger of the foresaid statute of Anno 32. H. 8. For the words of the statute be If any doe bargaine buy or sell c. any right or title in or to any lands or ténements So that those words any right or title doe extend to all manner of rights or titles and consequently to copyhold lands And séeing a great part of the land of the Realme is graunted by copie Therefore the meaning of the makers of the said Statute of Anno 32. H. 8. was to include them for the auoiding of Suits Maintenance and Champertie and not to leaue all copyhold estates to the mischiefes mentioned in the preamble of the sayd Act. Maintenance by giving of Liueries and retaining 12 Giuing of Liueries Badges Signes and Tokens and retayning of vnnecessarie seruants is an euill budde springing out of the foresayd Branch of Maintenance being put in practise by men of great countenance authoritie and estate and it hath béene from age to age accounted a meane to stirre vp quarrels to boulster Suites to procure Periurie and to subuert iustice And therefore the chiefe Gouernours of this Realme haue endeuoured by many Acts of Parliament to represse or snibbe it as by the Statute of Anno 1. R. 2. 7. Hen. 4. it was ordained St. 1. R. 2. 7. 7. H. 4. 14. That if any person shall giue any Chaperons Hats or such like Liueries to any man for maintenance of quarrels or other confederacies he shall forfeit an hundred shillings for euery such Liuerie and he which receiueth such Liuerie shall forfeit fortie shillings And by the statute of 8. H. 6. it was enacted Sta. 8. H. 6. 4 That if any person of his owne authoritie and proper costs doe buy or weare for his clothing any Clothes or Hats called Liueries of the sort or suit of any Lord Ladie Knight Esquire or other person to haue supportation succour or maintenance in any quarrell or in any other matter and being therof lawfully conuict he shall forfeit fortie shillings and be one yeare imprisoned And by the statute of Anno 1. H. 4. it was prouided St. 1. H. 4. 7. That if any which is a Knight or Esquire meniall of the Kings or who is of his retinue to whom his Maiestie shall giue his honourable Liuerie doe weare his said Liuery in the countrey or Countie where he is resiant or dwelling or in any other place of the Realme out of the Kings presence sauing in going or comming from the Kings house and is thereof duly attainted he shall loose his Liuerie and forfeit his fées for euer And by the statute of Anno 8. Ed. 4. it was established Sta. 8. E. 4. 2. Sta. 1. H. 4. 7. That no person by himselfe or any other for him shall giue any Liuerie or Badge or retaine any person other then his meniall Seruant Officer or learned man in the one Law or in the other by any writing oath or promise And if any doe the contrary hee shall forfeit for euery such Liuerie or Badge giuen an hundred shillings And he which doth retaine or take of any other such oath writing or promise or is retained by Indenture shall forfeit an hundred shillings for euery moneth that any person is so retayned with him by Oath Writing Indenture or Promise And euery person which is retained by Writing Indenture Oath or Promise for euery moneth that he is so retained shall forfeit an hundred shillings But this act shal not extend or be preiudiciall to any Gift Graunt or Confirmation made of any Fée Annuity Pention Rent Lands or Tenements by the King or any others to any person or persons for their counsell giuen or to be giuen or for their lawfull seruice done or to be done and for no other vnlawfull cause or vnlawfull intent although the person to whom such gift graunt or confirmation is made be not learned in the one law or the other Neither doth it extend to any libertie giuen at the Kings or Quéenes coronation or at the instalment of any Archbishop or Bishop or erection creation or mariage of any Lord or Lady of estate or at the creation of any Knights of the Bathe or at the commencement of any clerke in an Vniuersitie or at the creation of Serieants of the law or giuen by any Fraternitie Guild or Mysterie corporat or by the Maior Sherife or other chiefe Officer of any Citie Borough Towne or Port of this Realm of England for the time being during that time for the executing
alwaies leuied of the buyers of such books contrarie to this statute For that it was then thought expedient that Printers and sellers of printed bookes should as well be restrained from the oppression of others by making excessiue prices in sale or binding of their bookes as it was by the said statute prouided that they should not be oppressed by others Therefore by the before rehearsed statute of Anno 25. H. 8. it was further established St. 25. H. 8. 15. That if any Printers or sellers of printed bookes inhabiting within this Realme do at any time in such wise inhance or increase the prices of any such printed books in sale or binding at too high and vnreasonable prices in such wise as complaint thereof be made to the King or vnto the Lord Chancellor Lord Treasurer or any of the chiefe Iustices of the one Bench or of the other Then the same Lords or two of any of them shall haue authoritie to enquire thereof as well by the othes of twelue honest and discréete persons as otherwise by due examinations by their discretions and after the same inhauncing and increasing of the prices of the said bookes and binding shal be so found by the said twelue men or otherwise by the examination of the saide Lord Chancellor Lord Treasurer and Iustices or two of them Then the same Lords or two of them at the least shall haue power to redresse such inhancing of the prices of printed bookes from time to time by their discretions and to limite the prices as well of the bookes as for the binding of them And ouer that the offender or offenders being conuict by examination of the saide Lordes or two of them or otherwise shall forfeit for euery booke by them solde whereof the price shall be enhaunced for the booke and binding thereof thrée shillings foure pence to the King and party grieued that will complaine vpon the same in manner and forme aforesaid St. 5. Ri. 2. 2. 14 It appeareth by the preamble of the statute of An̄ 5. R. 2. that the carying of gold or siluer in money vessell plate or iewells foorth of the Realme was then accounted a great mischiefe oppression and destruction of this land which the policie of this State hath before and since by seueral Statutes endeuoured to restraine As appeareth by the statutes of An̄ 9. Ed 3. Anno 5. Oppression by transporting of gold and siluer R. 2. Anno 2. H. 4. Anno 2. H. 6. Anno 17. Ed. 4. Anno 4. H. 7. and Anno 19. St. 9. Ed. 3. 1 St. 5 R. 2. 2 H. 7. Whereupon by the saide statute of An̄ 9. Ed. 3. Anno 5. R. 2. it was established That whosoeuer doth send or carrie out of the Realme of England any gold or siluer in mony bullion plate or vessell without the Kings licence St. 2. H. 4 5. sauing for his reasonable expences Anno 2. H. 4. shall forfeit the valew of the summe carried foorth And he which is vpon his passage in any shippe or vessell for to goe out of any port hauen or créeke shall immediatly confesse and declare after warning vnto him giuen by the Kings searcher what gold or siluer in coine or masse he hath with him for his expences or else that mony so concealed shall be also forfeited to the King But by the statute of Anno 2. St. 2. H. 6. 6. H. 6. Raunsoms for fines of English prisoners taken beyond the Sea and the mony that souldiers shall carrie with them for their reasonable costs be excepted so that the same be not done without the Kings licence And also by the same statute is excepted mony for things bought in Scotland to be brought to the parts adioyning And by the saide Statute of Anno 19. H. 7. it was ordained That no person shall carry or conuey nor cause to be carried out of this Realme St. 19. H. 7. 5 any bullion plate or coine of golde or siluer into Ireland aboue the summe of vj. s̄ viij d nor conuey any such bullion into any ship or boate vpon paine of forfeiture of the same and of imprisonment and fine at the Kings pleasure 15 Because there is no mine of copper mettall within this realme Oppression by transporting copper brasse c. where sufficient copper may be gotten for the vse of the King and his people and for that seuerall other mettalls be mixed therewith of which diuers vessells and instruments be made And therefore the transporting thereof beyond the sea was found by experience to be a great hinderance and oppression to the workers thereof and also to all those that should haue the vse and occupation of the same which were in effect all sorts of housekeepers wherefore for the restraint of the transportation of the same first one statute was made Anno 21. St. 21. H. 8. 10. St. 33. H. 8. 7 St. 2. E. 6. 37 H. 8. And after another Anno 33. H. 8. And lastly a third Anno 2. Ed. 6. By which two last Statutes it was enacted That no persons shall carry or conuey or ship to the intent to carry or conuey any brasse copper latten bel mettall pan mettall or shroffe mettall whether it be cléere or mixed tinne and lead onely excepted into any part beyond the sea or into any outward dominion vpon paine to forfeit the double value thereof and x. l. for euery thousand weight of the same mettall so carried or shipped to the intent to be caried to the King and him that will sue for the same in any of the Kings courts by A.B.P. or I. wherein no W.E.P. c. 16 For that a great nūber of persons occupying the trade faculty of pewterers within this Realme were decayed and oppressed in estate by reason that much ware made of tinne was brought out of other countries into this Realme and because strangers did learne the occupation of Pewterers in this Realme Oppression of pewterers and then did depart the Realme and taught it to the people of forraine Nations and for that sometime Englishmen borne would trauaile into other countries and teach the same to forrainers for the restraint wherof by a Statute made Anno 25. H. 8. it was ordained St. 25. H. 8. 9 St. 33. H. 8. 4 That no person inhabiting within this Realme shall buy or take by exchange for other wares any wares made out of this Realme of tinne or mixt with tinne as platters dishes sawcers pots basons ewers flaggons goblets saltsellers spoones or any other wares made of tin or pewter whatsoeuer it be vpon paine of forfeiture of the same wares in whose hands soeuer it may be found or taken to the vse of the King and the finders thereof and also lawfull currant mony of this Realme to the valew thereof And further that no stranger borne out of this Realme shall vse the said craft of Pewterers nor worke any manner of vessell or other ware aforesaid to be
that he did cause some lawfull punishment to be inflicted vpon certaine of them for their crimes notwithstanding all these or such like misdemeanors be neither Treason nor Felony by the Law but a Riot and yet in respect of the basenesse of the parties which committed this wrong of the cause for the which they put it in practise of the worthinesse of the person and of his place vpon whom it was executed of the barbarous course taken in the performance therof of the perillous exāple giuen to other malefactors these riotors deserue to bée censured with a much sharper punishment then the former For as there be no bounds obserued by leud and wicked persons of their outrages so be there no certaine means or limits assigned of their punishments but the said most honourable Court of estate may draw forth his Maiesties sword of iustice and first punish the said offences according to the particuler lawes and statutes prouided therfore and then euery person transgressing by himselfe according to the circumstance of his demerits as partly may appeare by the statute of anno 3. H. 7. St. 3. H. 7. 1. which expresseth some parts of the authority giuen to the Lords of the said Court and more by a branch of the statute of Magna Charta whereby it is enacted St. 9. H. 3. 14 That euery fréeman shall be amerced viz. punished for reasonable cause according to the quantity of his offence And further by the statute of Anno 33. H. 8. St. 33. H. 8. 1 which giueth the lords of the said Court of Starre-chamber authority to punish those who by counterfeit letters or tokens shall get other mens goods into their hands by imprisonment setting vpon the pillory or other corporall paine whatsoeuer except death ⧠Treasons 1 CRimen lesae Maiestatis What is Treason in our English tongue called Treason is a great offence done to the Maiesty of gouernement and the peace of the land which the wisdome of this Realme hath from age to age so much hated and abhorred that they haue persecuted those that were guiltie therin with most violent and vntimely death and with extreame and seuere tortures they haue ordained that an offendor therein shall be hanged and cut downe aliue that his bowels shall bée cut off and burned in his sight that his head shall bée seuered from his bodie that his quarters shall bée diuided asunder and disposed at the Kings pleasure and made food for the birds of the aire or the beasts of the field and that his wife and children shall be thrust out of his house and liuings that his séed and blood shall be corrupted that his lands and goods shall be confiscated and as by the statute of 29. H. 6. 1. it is ordained of the Traitor Iohn Cade he shall be called a false Traytor for euer And as our respectiue and considerat forefathers haue deuised to yéeld vnto those grieuous offendors Legem talionis and to teare their bodies lands and goods who doe practise to rent and pull asunder this Maiestie of gouernement by destroying the head or such as are like to be the principall succéeding members thereof or by diuiding the bodie into parts or by weakning the force and strength thereof or by subuerting the chiefe Magistrats of iustice or by counterfeiting staining or blemishing of the peculiar and royall Ensignes Cognisances and Sinewes thereof so haue they béene carefull and prouident that there should be no greater number of those dreadfull sharpe and bitter lawes than vrgent necessitie for the preseruation of that Maiestie of gouernment required And because it was in former times greatly doubted and ofttimes called in question amongst the Sages of the Realme and learned in the lawes which offences were by the common law high Treason and which not and which were petit Treason and which not and seuerall men were of seuerall opinions therein and to the intent that al future ages might know and be more vigilant to eschew the penalties thereof King Edward the third at his Parliament begun at Westminster the thirtéenth day of Ianuarie St. 25. E. 3. 2 in the 25. yere of his raign at the request of his Lords and petition of his Commons made a declaration thereof in manner as hereafter followeth viz. It is high Treason where a man doth compasse High treason or imagin the death of our Soueraigne Lord the King or of our Ladie the Quéene his wife or of their eldest sonne and heire or if a man doth deflower the Kings wife or the Kings eldest daughter being vnmaried or the kings eldest sonne and heires wife or if a man doe leuie warre against our Lord the king in his Realme or be adherent to the kings enemies in his Realme giuing to them aid and comfort in his Realme or else where and thereof be probably attainted of open deed by people of their owne condition And if a man do counterfeit the Kings great Seale or his priuie Seale or his money which offences Bracton doth terme Crimen falsi And if a man bring false money into this Realme counterfeit to the money of England knowing the money to be false Bracton de Corona cap. 3. to marchandise or make paiment in deceit of our Lord the King and his people And if a man kill the Chauncellor Treasurer or the Kings Iustice of the one Bench or the other Iustices of Eire and of Assises and all other Iustices assigned to heare and determine beeing in their places doing their Offices And it is to bée vnderstood that in the cases aforesaid it ought to bee adiudged Treason which extendeth to our Lord the King and his royall Maiestie And of such Treason the forfeiture of the escheat doth appertaine to our Lord the King as well of the lands and tenements holden of others as of himselfe And moreouer there is another manner of Treason Petit treason that is to say When a seruant killeth his Master or a wife her husband or when a secular or religious man killeth his Prelat to whom he oweth faith and obedience And such manner of Treason giueth the escheats to euery Lord of his owne fée And because many other cases of like Treason may happen in time to come which a man cannot thinke of nor declare at this present It is accorded that if any other case supposed to be treason that is not before specified doth happen of new before Iustices the Iustices shall stay without proceeding to iudgement of Treason vntill the case be declared and shewed before the King and his Parliament whether it ought to be adiudged Treason or other Felonie And in case any man of this Realme doe ride armed openly or secretly with people armed against another for to kill or rob him or to take and detaine him vntill he hath made fine and ransome to be deliuered it is not the King or his Counsels wil that in such case it shall be adiudged Treason but it shall be
shal take an oath which is his abiuration The oath of abiuration in this manner viz. Heare you this Master Coroner Bracton Britton That I A.B. am a théefe of two beasts or a killer of a man and a felon of the kings of England and because I haue committed many offences and thefts in this Realme I doe abiure the Kingdome of our Soueraigne Lord King Iames And I must make haste towards the port of S. which thou hast giuen mee And I must not goe out of the high waie and if I doe then I yéeld to bee taken as a théefe and felon of our Soueraigne Lord the Kings at the port I will diligently séeke passage and will not tarrie there but one flowing and ebbing if I may haue passage And if I cannot haue passage in this time I will go euery day vp to the knées into the sea assaying to passe ouer And if I cannot do it within fourtie daies together I will returne to the Church as a thiefe and felon of our soueraigne Lord the King So helpe me God c. And notwithstaÌ„ding the words of the said oath the offendor not the Coroner ought to make the election of the port whither he will goe where he will make his passage and he must make his abiuration at the dore of the Church-yard Fi. Cor. 407 Britton 11 He that doth abiure the Realme must haue vpon him but his coate The attire of an abiured person his shirt and his bréeches and his head shal be vncouered he must carrie a crosse in his hand which as Polidore saith is a token that his life is saued by religion and whatsoeuer he hath beside is forfeited to the King and neither the Coroner nor any of his seruants shall take any thing of the offendors for their fée St. 9. E. 2. 10 12 By the Statute of Lincolne made anÌ„ 9. E. 2. The vsing of persons abiured They they that abiure the Realme so long as they be in the high way shal be in the Kings peace and bée troubled of no man And whilest they be in the Church their kéepers shall not tarie in the Church-yard except necessitie or perill of escape doe require it and so long as they be in the Church they shall not be compelled to depart but may haue those things which be necessarie for their liuelihood and may go forth to discharge nature 7. H. 7. 7. Fi. Cor. 14 But if an abiured person be molested in the high way and drawne out of the way and imprisoned yet that will not excuse him when he is againe at libertie if he doe not within conuenient time after his libertie returne to the way leading him to the port or place whereunto vpon his abiuraration he made choice to goe But if he doe goe out of the high way vpon ignorance or to ease nature that shall not hurt him so that he doe returne to the high way in conuenient time or doe his good will to returne 13 After abiuration if the offendor doe any thing contrarie to his oath After abiuration broken death viz. contrary to his abiuration he shal be put to execution vnlesse he be a Clerke and in that case shal be saued from death by his Clergie because the Prelates and Clergie did complaine in Parliament that though a Clerke ought not to be iudged by a temporall Iudge nor any thing may be done against him that concerneth life or member neuerthelesse temporall Iudges caused Clerks flying vnto the Church and confessing their offences to abiure the Realme and for that cause admitted their abiurations although hereupon they cannot bée their Iudges and that so power was wrongfully giuen to Laie persons in the punishment of such Clerks And if such should chance after to returne into the Realme the said Prelates and Clergie desired such remedie to bee prouided therein that the immunitie or priuiledge of the Church may be preserued vnbroken St. 9. E. 2. 15 Vpon which request by a Stat. made anÌ„ 9. E. 2. intituled Articuli cleri it was enacted That a Clerke flying to the Church for felonie to obtaine the priuiledge of the Church shall not be compelled to abiure the realme but yéelding himselfe to the law of the realme shall enioy the priuiledge of the Church according to the laudible custome of the Realme heretofore vsed Which said Statute being but a rehersall restoring and confirmation of the common law is thought not to be repealed by the words of the foresaid stat of 1. Iac. â—â— 1. Iac. 25. And so it appeareth by this stat that if he which doth flie to a Church will say that hée is a Clerke A Clerke need not abiure he shall not be compelled to abiure and if he doe abiure of his own good will and thereby doth lose his lands yet to saue him from execution hee shall haue his Clergie S. St. 28. H. 8. 1. Clergie 5. Where no felonie no abiuration for felonie 14 A maried wife béeing desirous to bee deliuered from her husband Fi. Cor. 425 did flie to a Church and acknowledged a felonie where she neuer had committed any felonie and desired to abiure and her husband vnderstanding of it came to her and then shée fled out of the Church and escaped and towne or person were amerced for this escape for there could no felon escape where no felonie was committed Neither can there be any abiuration where no felonie is committed And therefore an offendor cannot abiure for petit larcenie Br. Cor. 182 The abiured pleadeth that he is not the same person 15 He that doth abiure and is taken againe and arraigned Fi. Cor. 124 may plead that he is not the same person which did abiure and then that shal be tried by the Coroner who tooke his abiuration Or hee may plead the Kings pardon The Kings pardon granted to him of the felonie and abiuration 9. E. 4. 28. for if the pardon make no mention of the abiuration it is not good S. Pardon 7. A Recusant vsing conuenticles shall abiure the realm 16 By the statute of anÌ„ 35. El. it was ordained St. 35. El. 1 that if any person or persons aboue the age of sixtéene yeares which shall offend against the said Acte in persuading others to impugne the Quéenes Ecclesiasticall lawes shall not within thrée moneths after they shall be conuicted for their said offence conforme themselues to the obedience of the Lawes and Statutes of this Realme in comming to Church to heare diuine Seruice and in making such publike confession and submission as in the said Act is expressed béeing thereunto required by the Bishop of the Dioces or any Iustice of the Peace in the same countie where the said person shall happen to be or by the minister or Curat of the Parish In euery such case euery such offendor béeing thereunto warned or required by any such Iustice of
not yéeld to be iustified and tried by the Law but will either kill himselfe or giue cause to other men to slay him Fi. Cor. 289 290 312. S. Br. 5. for resisting and not submitting his obedience to the Law then he shal forfeit his goods so that this offence be found and presented by twelue men before the Coroner or some Iustices after his death for in this case the default is in the offendor and not in the Law that he came not to lawfull triall of his offence for the law requireth no more but that the supposed offendor shal be safely kept sub custodia legis by imprisonment or maineprise vntill it be tried whether he be an offendor or not But though the person thus slaine shall for his disobedience forfeit his goods béeing not attainted either of treason or felonie yet in the like case he shall not forfeit his lands if hee bee slaine in arresting or after arrest or otherwise die before he be attainted St. 34. E. 3. 12. as it appeareth by the Stat. of an̄ 34. Ed. 3. 12. which hath established That for forfeitures of dead persons not attainted nor adiudged in their liues their heires or land-tenants shall not be impeached or challenged nor of any other forfeiture except the forfeitures in old time adiudged after the death of the persons by presentment in Eyre or in the Kings bench or of felons of themselues or others And yet some doe affirme if a man doe leuie warre or open rebellion against the King or is assistant to his enemies in the field and then is slaine in battell he shall forfeit his lands goods And others doe adde thereunto that the same his Treason and manner of death must also after his death be found by a Iurie super visum corporis Co. li. 4. 57 Pl. Com. 262. 263. before the chiefe Iustice of England being the soueraigne Coroner of the realm and he must returne it into the Kings Bench and make a Record therof and then that person shall forfeit his lands and goods And vpon those words of the sayd Statute of 34. Ed. 3. viz. Except the forfeitures in old time adiudged after the death of the persons by presentment in Eire or in the Kings Bench or c. some doe inferre that if a presentment in Eire or in the Kings Bench be made of such an open rebellion and battell thereupon foughten and of those that manifestly shewing themselues to bée open enemies or rebels to the King were slaine therein that by the words of the same Statute they shall forfeit their lands But if a man bée arrested for counterfeiting the K. great or priuie Seale for forging of his money or for a priuy conspiracie of the death of the King or c. and is slaine in resisting the said arrest or for a rescous attempted before or after the sayd arrest hee shall forfeit his goods but not his lands And if he bée arrested for any of the sayd offences and committed to prison for the same and after doth dye in prison before he bee attainted of any of the sayd offences he shall neither forfeit lands nor goods though he be taken with the manoure viz. found hand hauing and backe bearing for though it is a mischiefe that a man committing high Treason shall forfeit neither life lands or goods yet the law doth rather beare with that mischiefe than to suffer such an inconuenience that a man onely accused or but only a supposed offendor should bée attainted and forfeit his lands and goods where being preuented by death viz. by the hand of God hee cannot come to answer and defend himselfe and by that meanes cannot bée condemned by such lawfull tryall which is meant and specified in the before rehearsed Statute of Magna charta But for the auoiding of questiō and doubt in the case aforesaid they which haue béene knowne parties to such open and manifest rebellions St. 29. H. 6. 1 St. 12. El. 16 St. 29. El. 1 St. 35. El. 5. St. 3. Iac. 2. haue béen of late yeares attainted by Act of Parliament and their lands and goods giuen as forfeit to the King As it appeareth by the stat of Anno 29. H. 6. 13. El. 29. El. 35. El. 3. Iac. The forf of the yeare day and wast 31 There is another forfeiture besides the losse of life lands annuities Fi. Cor. 310 290. 327. and goods wherewith the law hath deuised to punish those that doe commit petit Treason or Felonie and be attainted thereof which is called in Latine the forfeiture of Diem annum vastum the forfeiture of the yeare day and wast which is executed vpon the houses and lands of the offendor that be holden of any other sauing of the king That is the felons houses and lands shall bée seised into the Kings hands where they shall remaine by the space of a yeare and day and then the houses shall be throwne downe to the ground the trées shall be pulled vp by the roots the medowes shal be ploughed vp and all things which the felon did build or plant shal be cast downe digged vp Fitz. Cor. 358. and supplanted Which punishment was ordained in despight of offendors and to shew to others how much the law doth detest murderers committers of burglarie robberie and other felonies and as much as may be to terrifie and discourage others to attempt or practise the like 32 It appeareth by Bracton that by the common law the King should haue had but onely the wast of a Felons lands viz. the benefit to pull downe his houses root vp his trées plough vp his medowes and such other commodities as he could haue raised by spoyling and wasting of the felons houses trées and lands and that then the land so wasted should haue béene presently deliuered to the Lord of the fée of whom the same lands were holden which wast and spoyle was then made without redemption And after by a composition made betwéene the King and the Lords it was agréed By what means the K. came by the yere day and wast That the King should haue the benefit of the felons lands a yeare and a day to redeeme the spoyle and wast which hée might make of the sayd felons lands And the K. graunt by the great Charter made Anno 9. H. 3. St. 9. H. 4. 3 22. tendeth to the same effect viz. Wee will not hold the lands of those that bée conuict of felonie but a yere and a day and then they shall bée deliuered to the Lords of the fées And so it séemeth that King Henrie the third and King Edward the first did hold themselues satisfied with the yeare and day of the felons lands without taking the wast thereof St. 17. E. 2. 16 But after Anno 17. Ed. 2. the Kings Prerogatiues royall béeing expressed or enacted by Parliament amongst others it is ordayned That the King shall haue all the goods of felons which be
within the sayd Palaces or other the sayd houses at any time committed And if any person or persons bée indicted by the sayd Iurie so sworne before them as is aforesaid or by Inquisition before the Coroner of the sayd houshold and certified before the sayd Lord Steward or in his absence before the sayd Treasorer Comptroller and Steward of the Marshalsey or two of them whereof the sayd Steward of the Marshalsey to bee one Then immediatly the said Lord Steward or c. Treasorer Comptroller and Steward of the Marshalsey or two of them whereof c. before whom the sayd Presentment Inquisition or Indictment shall bée so found or certified by the sayd Coroner shall arraigne before them euerie such person so indicted according to the course of the common law and forthwith after issue ioyned betwéene the King and the prisoner so arraigned the same day and place or any other shall make another Precept to the sayd Clerks Comptrollers Clerkes of the Checke and Clerkes Marshals of the said houshold or to one of them to summon and returne one Iurie of foure and twenty persons to appeare before the sayd Lord Steward or c. Treasorer Comptroller and Steward of the Marshalsey or two of them whereof the sayd Steward of the Marshalsey to be one at such day time and place and vpon such paine as shal be then limited of the Serieants and Gentlemen Officers of the Kings chamber and of the sayd houshold which shall take wages by the K. Checke roll And the sayd Steward or c. Treasorer Comptroller and Steward of the sayd Marshalsey or two of them whereof the sayd Steward to be one before whom such Iurie shall bée so returned shall cause twelue of the same Iurie to bée sworne truely to try between the King and such person as shall bée so indictected and arraigned of such Treasons Misprisions of treasons Murders Manslaughters and other malitious strikings by reason whereof bloud shall bee shed against the Kings peace or any of them And if any such person or persons so arraigned be found guiltie of any Treason Misprision of Treason Murders or Manslaughters then hee shall haue iudgement of life and member and suffer such paines of death and shall forfeit all their mannors lands tenements goods and cattels in like manner as if the same person and persons had beene found guiltie of any of the sayd offences by the order of the common law without the benefit of Clergie or Sanctuarie Prouided alwayes that the tryall of Peeres for any offence before mentioned shal be as it hath beene vsed in times past St. 3. H. 7. 14 5 By the stat made Anno 3. H. 7. it was ordayned That the Steward Treasorer Iudges of conspiracie in the K. house and Comptroller of the Kings house for the time beeing or one of them shall haue authoritie to inquire by twelue sad men and discréet persons of the Checke rol of the Kings houshould if any seruant admitted to be his seruant sworne and his name put in the Checke roll of his houshold whatsoeuer he be seruing in any office or roome reputed and taken vnder the estate of a Lord make any confederacies coÌ„passings conspiracies or imaginations with any person or persons to destroy or murder the K. or any Lord of this realm or any other person sworne to the kings Counsel Steward Treasorer or Comptroller of the Kings house And if it be found before the said Steward for the time being by the said xij sad men that any such of the K. seruants as is abouesaid hath confederat compassed conspired or imagined as is abouesaid hee so found by the inquirie shall bee put thereupon to answer And the Steward Treasorer and Comptroller or two of them haue power to determine the same matter according to the law and if he put him in tryall then it shall bée tryed by other twelue sad men of the said houshold And if such misdoers shall be found guiltie by confession or otherwise the said offence shall be iudged felonie S. Felonie by Stat. 1. Iudges within the Verge 6 The Iustices of the Kings Bench the Iustices of Oyer and Terminer Co. li. 4. 47. Iustices of Gaole deliuerie and Iustices of Peace haue power to inquire heare and determine all murders and felonies within the Verge for that their authoritie and iurisdiction is generall through the whole countie and so it hath beene alwayes vsed 7 The Iustices of the Kings Bench Iudges of the K. Bench. without hauing Commission may heaâ—e and determine all maner of Treasons and Felonies And by the Stat. of Anno 35. H. 8. Anno 5. Ed. 6. it is enacted St. 35. H. 8. 2 St. 5. E. 6. 11 That all manner of offences being alreadie made or declared or hereafter to be made or declared by any laws and statutes of this Realme to be Treasons Misprisions of Treasons or concealments of Treasons done perpetrated or committed or hereafter to bee done Iudges of Treasons committed beyond the Sea perpetrated or committed by any person or persons out of this Realme of England shall bee inquired of heard and determined before the Kings Iustices of his Bench for Pleas to be holden before himselfe Dy. fol. 287 298. by good and lawfull men of the same Shire where the sayd Bench shall sit and be kept or else before such Commissioners and in such Shire of this Realme as shall bée assigned by the Kings Commission and by good and lawful men of the same Shire in like manner and forme to all intents and purposes as if such Treasons Misprisions of Treasons and concealements of Treasons had béene done and committed within the same Shire where they shal be so inquired of heard and determined Prouided alwayes that if any Peeres of this Realme shal be indicted of any such Treasons or other offences then they shall haue their triall by their Péeres as heretofore hath béene accustomed 8 By the Stat. intituled De finibus St. 27. E. 1. 2. St. 4. E. 3. 2 made Anno 27. Ed. 1. and also by the stat of Anno 4. E. 3. it is ordayned That good and discréet persons other than of the Benches Iudges of gaole deliuery if they may be found sufficient shal be assigned in all the shires of England to take Assises Iuries Certifications and to deliuer the gaoles And the Iustices assigned to deliuer the gaoles shall haue power to deliuer the same gaoles of those that shal be indicted before the gardeins of the peace And the said gardeins shall send their indictments before the Iustices And they shall haue authoritie to inquire of Sherifes Gaolers and others in whose ward such indicted persons shal be if they make deliuerance or let to mainprise any so indicted which be not mainpernable and to punish the said Sherifes Gaolers St. 3. H. 7. 1 and others offending against this Act. And by the stat of An. 3. H. 7. it is
any other priuat person who intrudeth himselfe without warrant to be a censor of manners rather séeketh the discredite of the partie then the reformation of his faults for this secreat searching into sifting of other mens conditions dyuing into their offences divulging them to their discredites doth conuince the offendor to be a man of lewde disposition to haue made shipwracke of his conscience doth brand him during his life with the name of an infamous Libeller or slaunderous backbiter And therefore by Gods owne commandement it is specially giuen in charge to euery of his people Non maledices principi populi tui Non fasias calumniam proximo tuo Psal 100. And king Dauid saith Detrahentem secreto proximo suo hunc persequebar And God doth threaten that he himselfe will take reuenge of the slaunderer Psal 49. saying Sedens aduersus fratrem tuum loquebaris aduersus filium matris tuae ponebas scandalum haec fecisti tacui exictimasti inique quod ero tui similis sed arguam te et statuam contra faciem tuam And as infamous libelling secret defaming be oft times the causes of grudges séeking of reuenge and thereby of quarrels in like sort words of slaunder or spéeches of disgrace openly published to the face of an other or behind his backe be also firebrands of variance dissention fighting and the shedding of bloud and so be speciall meanes of the breach of the peace Action vpon the case for slaunder is contra pacem As it may partly appeare by the words of the kings writ alwayes inserted in an action vpon the case brought by one person against an other for speaking of slaunderous words in which writ it is supposed that the words were spoken Ad graue damnum ipsius querentis contra pacem nostram And the same is further proued by the words of the statute of An̄ 2. St. 2. R. 2. 5. R. 2. whereby it is ordeined That because publishing of false newes tales and lyes of Prelates Dukes Earles Barons Slaundering of Noble men or great Officers other noble and great men of the Realme or of the Chauncellor Treasorer Clerke of the priuie Seale Steward of the Kings house Iustice of the one Bench or of the other or of other great Officers of the Realme debate discord or matter of discord or slaunder may rise betwéene the Lords commons whereof great perill may come to the Realme and spéedy subuersion destruction of the same therefore it was enacted by the said statute That if any do commit the before specified offence he shall be taken imprisoned according to the statute of Westm̄ 1. St. 3. E. 1. 34. vntill he hath brought forth him which did speake the same St. 12. R. 2. 41. And further by an other statute made An̄ 2. R. 2. it was moreouer enacted That when the said offendor is taken imprisoned and can not find him that spake the words then he shall be punished by the aduise of the Councell And to the intent that such euill disposed persons which by their lewde spéeches slaunderous words or reports do indeuor to breake or disquiet the peace of the Realme Sta. 1. 2. P. M. 3. might the sooner be inquired of found out punished By a stat made An̄ 1. 2. P. M. it was further established That the Iustices of peace in euery shire citie towne corporat within the limits of their seuerall commissions shall haue full power to examin heare determine the causes abouesaid in the said 2. acts of 3. E. 1. 2. R. 2. specified to put the said 2. stat euery branch in them conteyned in due execution that condigne punishment be not deferred from such offendors And besides the before mentioned penalties assigned to be inflicted vpon transgressors by the foresaid stat euery noble man or great officer of the realme against whom any scandalous words 11. El. Dy. 285. Co. li. 4. 12. false newes or lies be spoken may prosecute against the offendor an action De scandalis magnatū recouer damages against him And in like sort may euery inferior person for any such like words of infamie spoken against him pursue an action vpon his case against the offēdor recouer his damages And further if one person shall exhibit a bill in the Starre chamber against an other amongst other things charge him with murder piracy robbery or other felony or to be a procurer thereof or accessory thereunto or with any other offence which is not examinable in the said court the defendāt in the said bil may prosecute against the complainant therein an action vpon the case recouer his damages for this bil was exhibited of malice by the complainant to remaine of record in the said court to the infamie slander of the defendant not to punish him for the said offences suggested in the sāe bil by a course of justice séeing the court of Starre chamber hath no authoritie to inquire of or punish the same offences But if the complainant doth suggest in his said bill of complaint any matter against the defendant which is examinable in the said court then no action vpon the case is maintenable against him by the defendant therefore though the matter surmised be méerely false for it is done in a course of justice Et sub iudice lis est whether the matters suggested be true or false vntil they be proued And in former ages spéeches tēding to the reproch of others were so odious that K. Edgar ordeined that his tongue should be cut out which did speake any infamous or slaunderous words of an other Edg. Lex 4. But though it be true as is aforesaid that infamous libels secret defamations or publick slanders or reproches be oft times more offensiue to the party taxed therby then open menaces and threates of violence are Yet séeing for the most part menaces springing out of distemperat cholericke humors do more hastilie break forth into further fury extremities tending to the breach of the peace then libelling secret defamation doe which must haue a breathing time to be inquired of bolted forth and then to be punished Therefore I will omit to write any further of libelling or defamation goe forward with menaces c. tota sequela sua 2 Menaces assaults batteries be things of seuerall natures yet for the most part they tend to one effect viz. to hurt him against whom they are bent menacing is a threatening of some hurt to be done or procured by the speaker or some other by his meanes to the person of the hearer or his wife seruant tenant or other The differēce of menace assault and battery whereby he receiueth losse or hurt Assault is an attempt to execute the thing menaced by force violence Battery is the performing of the thing before threatened viz. the beating
a Lords freeholder to plead That those tenants of the plaintifes which departed from their tenancies were the fréeholders and the fréehold tenants of the plaintifes and not his tenants at will For if it be so the plaintife shall recouer nothing against the defendant because hee hath other sufficient remedie to recouer the seruices of his fréeholders or the land in stead of thē And so it is to plead that the tenants which departed 21. H. 6. 31. were tenants for terme of yeares 6 In the cases aforesaid he that is wronged in his owne person his seruants or tenants by the menace of another whereby hée sustaineth losse shall haue his action of Trespasse against the offendor for the said menace and the hurt which he receiueth thereby and the king also shall haue a fine of the offendor for that the menace was of life and member and suggested to bee done vi armis and so tended to the breach of the peace But if it bée such a menace as doth not tend to the breach of the peace Menace which is iustifyable then the law is otherwise for then the partie menaced shall neither haue an action of Trespasse or other remedie against the menacer neither shall the king haue a fine of him As if a man dye seised of certaine lands and a stranger will abate 22. H. 6. 48 21. H. 6. 26. 9. H. 7. 7. and then the heire of him who dyed seised will enter vpon the stranger and menace and threaten him That if he will not depart from the possession of the same land that then hée shall repent it as the law will allow this is menace iustifiable for that he hath said no more than the law will allow him to performe And in like sort if A. be disseised of his fréehold eiected out of his terme of yeares Li. Intr. 555 dispossessed of his goods beaten assaulted or euill intreated by B. if in this case A. will say vnto B. That he will not endure those wrongs nor put them vp at his hands but will prosecute suit according to the law of the Realme in the sharpest maner that he can for the redresse of those iniuries and for the due punishment of B. this is menace iustifiable and nothing tending to the breach of the peace for A. hath said nothing but that the law will permit him to doe And in these cases the menacer doth yeeld to make the law iudge of his wrongs and that also in peaceable manner but in the former cases the menacer doth threaten to be the reuenger of his owne iniuries and so to be his owne iudge and that also in a forcible and vnlawfull sort And so it is if one man owe money to another and at the time assigned doth not pay if the creditor do say to the debtor that he will sue him according to the course of law 16. E. 4. 7. and imprison him for his debt this is menace iustifiable for the law doth allow him to doe it 7 As menace in words is accounted in many cases to be a meane of the breach of the peace and so punishable by the lawes of the realme so menace by deeds by behauiour gesture wearing of armour or vnusuall and extraordinarie number of seruants or attendants is accounted to be in affraie and feare of the people a meane of the breach of the peace and so punishable for the law doth intend that he which in a peaceable time doth ride or goe armed without sufficient warrant or authoritie so to doe doth meane to breake the peace and to doe some outrage seeing she is able and wil be alwaies ready to defend euery member of the common weale from taking or receiuing of force or violence from others if himselfe doe not giue cause to the contrarie Whereupon by a Statute made at Northhampton St. 2. E. 3. 3. anno 2. Ed. 3. it was enacted That no man great nor smal of what condition soeuer he be except the kings seruants in his presence his ministers in executing of the kings precepts or of their office and such as be in their companie assisting them and also vpon a Crie made for armes to keepe the peace and the same in such places where such acts happen be so hardie to come before the kings Iustices or other the kings ministers in doing their offices with force and armes nor bring no force in affraie of the peace nor to goe nor ride armed by day nor by night in faires markets Menace by going or riding armed nor in the presence of the Iustices or other ministers nor in no part elsewhere vpon paine to forfeit their armour to the king their bodies to prison at the kings pleasure And that the kings Iustices in their presence Sherifes and other ministers in their bailiwicks Lords of franchises their bailifs in the same mayors bailifs of cities boroughs within the same cities boroughs borough-holders wardens of the peace within their wards shal haue power to execute this act And that the Iust assigned at their cōming down into the coūtrey shall haue power to inquire how such officers Lords haue executed their offices in this case to punish them whom they find haue not done that which pertained to their office St. 7. R. 2. 13 20. R. 2. 1. And after by a statute made anno 7. R. 2. it was ordained That no Lord Knight nor other little or great shall go nor ride by night or by day armed nor beare sallet or skull of yron nor other armour vpon the paine of forfeiture thereof to the king except the kings officers and ministers in doing their offices And by the same statute it was also assented that none should ride or goe with Launcegaies Launcegaies beeing an armour defensiue then vsed in affraie of the people but that the same Launcegaies should be for euer put out 8 And shortly after the same Statute of 2. Ed. 3. was put in execution Wearing of a priuie coate for a knight was attached and arraigned in the kings Bench for that hee did weare armor vnder his vpper garment in the kings palace 24. E. 3. 33. and in Westminster hall who pleaded that there was debate betwéen him and another knight who did that weeke strike him and yet did menace him and that for feare of further perill and to saue his life hee did weare the same armour But this was adiudged no plea for the court did award that hee should forfeit his armour and be committed to the marshalsey And though he desired to be let to mainprise he was not admitted thereunto vntill the kings pleasure was knowne And the other knight his aduersarie was sent for into the kings Bench and there commanded vpon paine of all that he could forfeit that hee should not meddle nor doe any thing but that which was good to his said aduersarie Labourers shall weare no weapons
of Iust nothing was attempted but the reformation of the mans conditions and to haue the peace and good behauiour continued The suertie of good abearing in other cases then for the peace And though this suerty of good abearing is chiefely prouided for the continuance of the peace yet by force of seuerall Statutes it is also grauntable in some other cases St. 10. E. â— 3 As if the King do graunt to any person a charter of pardon of any felony then he shall come within thrée Monthes before the Shirife and Coronors of the same Countie where the felony was done finde sixe sufficient Mainpernours for whom the said Shirife and Coronors will answere that he from thenceforth shall beare him selfe well and lawfully Sta. 1. M. 3 And if any man disturbe a Preacher in his Sermon he shall be bound to his good abearing for one yeare St. 3. Iac. 19. 5. El. 21. And he shall be bound to his good abearing for seauen yeares who doth vnlawfully hunt and steale deare or conies or take away wrongfully any haukes or haukes egges or shall vnlawfullie distroy or breake the head or damme of any pond poole moate stagne or stew whereas fish are put or shall wrongfully fish in any of them to the intent to steale or take away any of them against the will of the owner or possessor of the same not hauing lawfull authoritie so to doe And he shall be bound with two sufficient suerties in CC. Sta. 23. El. 1. l. to the good behauiour which doth absent himselfe from the Church by the space of twelue moneths c. 71 Because it appeareth by the words of the foresaid commission of peace that the said Iustices of peace shal cause al those to finde suerty of peace which doe threaten any of the Kings people to hurt them in body or to burne their houses For whom against whom the suertie of peace is to be graunted Therefore all lay persons vnder the degrée of Lords or Péers of the Realme and also Ecclesiasticall persons if they be not attendant vpon diuine seruice may be arrested to finde suerty for the peace And if the husband do threaten to kill his wife or outragiously to beate her or that she hath any notorious cause to feare that he will doe so Fitz. Nat. Bre. 80. 239. she may demaund the suertie of the peace against him and she shall haue it graunted And in like sort and for the like causes may the husband demaund suertie of the peace against his wife in which case shée her selfe shall not be bound but others shal be bound for her And a Iustice of peace vpon his owne discretion may in either of the foresaid cases grant suertie of peace And one Iustice of peace may vpon his owne discretion or at the request of an other graunt the suertie of peace against an other of his felow Iustices of peace of the same county And one Iustice of peace may demaund suertie of peace of an other of his fellow Iustices against an other man A man attainted of Treason or Felony or in a Praemunire A man attainted An Heretike A Dumb man An Enfant A Villeine or abiured or conuict of Heresie a dumbe man or an Enfant within the age of xiiij yeares may demaund ought vpon cause to haue suertie of peace And so may a Villeine haue suertie of peace against his Lord least that his Lord should maihem him the Lord may haue suertie of peace against his villein A dumbe man or an Enfant aboue the age of xiiij yeare may also be inforced to find suerties for the kéeping of the peace but then themselues are not to be bound but some others for them Or else they must be committed to prison vntill they can find suerties A Iustice of peace cannot graunt suertie of peace against a Baron of the Realme nor any other aboue the degrée of a Baron A Baron But the party who would haue the peace against him must bring him by Subpoena into the Chauncerie Fitzh Subpoena 20. there he must be bound to the peace A man that is frantike shall not haue the suertie of peace of his owne demaund A mad man because he hath not discretion to request it But a Iustice of peace vpon his own discretion may bind an other to kéepe the peace against him if he sée cause thereof Neither shall he who is a Alien borne no Denizen An Alien nor in friendship with the King the Realme haue suertie of peace graunted him 17. Ed. 4. 4. 72 If a man do threaten an other to imprison him the partie threatned shall not haue the suertie of peace against him that did so menace him Vpon what cause the suertie of peace is to be graunted for that after he is imprisoned he may haue against the other a Homine replegiando or an action of false imprisonment and recouer damages so be recompenced for his imprisonment But if one man do threaten an other to beate him the partie threatned may haue the suertie of peace against him for that beating may tend to the maiheming or killing of him which the suertie of peace might haue preuented If a man do feare that an other will kill him maihem him hurt him in bodie or burne his house or procure or cause the same to be done and will come before a Iustice of peace Fitz. Na. B. 79. take his corporall oath to that effect the Iustice of peace is to graunt him the suertie of peace against the man complained of for that may satisfie the conscience of the said Iustice that the partie doth complaine vpon méere feare and not vpon malice or vexation And though the partie against whom the peace is demaunded may séeme to the Iustice of peace to be a simple person weake féeble impotent or far vnable to incounter by force and strength with him that demaundeth the suertie of peace yet he may procure or cause the other to be slaine maihemed beaten or his house to be burned And further if the party that doth complaine and desiâ—eth the suertie of peace will sweare that he doth feare where indéed he neither doth feare nor hath cause of feare yet his oath doth therein discharge the conscience and oath of the Iustice of peace And the whole fault if any be shall be iustly imputed to the complainor 73 And whereas the words of the kings Commission be Suertie of peace inioyned by word or writing That the said Iustices of peace shal cause all those to find suertie of peace which do threaten any of the kings people to hurt them in bodie or to burne their houses It is to be obserued that in some cases a Iustice of peace may by his owne word only cause suertie of peace to be found sometime he must do it by writing As if one man do in the presence hearing
himselfe he may commaund them vpon paine of imprisonment to surcease 5. H. 7. 6. or else he may with his weapon part kéepe them asunder and call and procure others likewise so to doe And then he may carrie them before a Iustice of peace to find suertie of the peace which if they refuse to doe he may commit them to prison 3. H. 4. 9. or els the Constable may take suerties of them by Obligation to kéepe the peace And if any of the offendors doe flée into a house 13. Ed. 4. 9. the said officer may breake open the dores and arrest him and so he may doe if the offendor doe flée into another Countie for that the arrest is for the benefite of the commonweale And likewise if any of the said officers shall learne that certaine persons be fighting or quarreling in a house in such sort that they are like to breake the peace or that a man and a woman be in a house together committing addultery or fornication 7. E. 3. 10. 1. H. 7. 6. he may breake open the dores and arrest them to come before a Iustice of peace to find suertie of the peace or otherwise if he will he may commit any of the said offendors to prison And if any of the parties to an affcay haue receiued any daungerous wound then the officer must arrest the offendor and carrie him to a Iustice of peace 22. Ass p. 56 who is eyther to commit him to prison or to let him to mainprise vntill the next Gaole deliuery that it be knowen whethir the partie wounded will liue or die thereof or els the officer himselfe may commit him to prison vntill the same be knowen 38. Ed. 3. 6. for if the partie wounded doe die the offence wil be felony If the common voice and fame of the County be that C.D. hath committed a felony any of those officers that doe suspect him thereof may arrest him for it And so he may search within the limits of his authority for any persōs suspected of felony for it is a chiefe parte of the Constables dutie to preserue the peace and represse felons And if any of the officers before mentioned do arrest an offendor or any person suspected for any of the causes aforesaid who ought to be carried to the Gaole or before a Iustice of peace the same officer néede not carrie him presently to the Gaole 22. Ed. 4. 35. or before the Iustice but he may put him in the stocks or some other safe custody for a time vntill he can prouide sufficient company to assist him to conduct the same offendor to the Gaole or to the Iustice 2. Ed. 4. 9. Or if the partie arrested be so sicke diseased or wounded that he cannot be presently carried without daunger of death the officer may stay him vntill he be recouered 85 But the peace of the Realme hath béen so precious to all ages Euery able person is a Conseruator of the peace and Treasons Felonies assaults batteries and other forcible violences and offences so odious that the Lawes and Statutes of the Realme and the wisedome of our forefathers haue made and appointed besides the Magistrates and officers before mencioned all sortes of able persons in some sort and to some purposes preseruers of the peace intending that as all the members of the common weale doe taste swéet comfort and pleasant repose by the benefit of peace so they should be all partakers when néede requireth of the paines to maintaine and continue the same peace and to punish the transgressors thereof Sta. 3. E. 1. 9. And therefore by the Statute of Westm̄ 1. it is ordained That all men generally shall be ready at the commaundement and summons of the Shirifes and at the crie of the country to pursue and arrest felons when néede shall be aswell within fraunchises as without and they that will not and be thereof attainted shall make a grieuous fine to the King Sta. 3. Ed. 1. By the statute intituled Officium Coronatoris it is enacted That vpon all Homicides Burglaries men slaine or put in great daunger huy and crie shall be leuied and euery man shall follow the huy and crie and the offendors steppes if it may be and whosoeuer doth not and is thereupon conuicted shall be attached to appeare before the Iustices of Gaole deliuerie St. 5. E. 3. 14. By the Statute of Anno 5. Ed. 3. it is established That if any man suspect lewd persons then termed robertsmen wasters or drawlatches of any manslaughters felonies or robberies be it by day or night they shall incontinently be arrested by the Constable of the towne and if it be within franchise deliuered to the Bailifes of the franchise and if in guildable to the shirife and kept vntill the comming downe of the Iustices of Gaole deliuerie who shall procéede to the deliueraunce of them St. 17. R. 2. 8. By the Statute of 17. R. 2. it is defended to all the Kings people aswell Lords as others that none shall make assemblies Riots or Rumors against the peace And if any such assemblie be begun as soone as the Shirife and other Ministers may haue knowledge thereof they with the strength of the country shal disturbe such offendors and put them in prison vntill the law be executed vpon them And all Lords and other liege people of the Realme shall be attending with all their strength and power to the Shirifes and Ministers aforesaid St. 2. H. 5. 8. By the Statut of An̄ 2. H. 5. it is prouided That the Kings people being able to trauaile in the Countie where Riots assemblies or routs against the law be shal be assistant to the Iustices Commissioners Shirife or vndershirif of the same Countie when they shall be reasonably warned to ride with the said Iustices Shirife c. in aide to resist such Riots Routs and Assemblies vpon paine of imprisonment and to make fine and ransom to the King St. 15. R. 2. 2 By the Statute of 15. R. 2. it is ordeined That if the Shirife or any other of the Countie doe not attend vpon a Iust of peace to arrest such offendors as doe make forcible entries into lands or tenements he or they so offending shall be imprisoned and pay a fine to the King Sta. 1. M. 12. By the Statute of An̄ 1. M. it is established That if any person being aboue the age of xviij yeares and vnder the age of lx being able to serue and not sick lame or impotent shall be required by any Iustice of peace or any Shirife of any County where any vnlawfull assembly of xij persons or aboue shall be to do any vnlawfull act prohibited by that statute or by any Maior Bailife or other head Officer of any Citie Borough or towne corporat or by any other by the commaundement of any such Iustice Shirife Maior c. to go with him or them to suppresse the
assemble for any of the sportes before mentioned but when the taking of parte with those that did quarrell beganne And therefore they onely who made themselues parties to that quarrell shall be punished as Riotors and none other And so it is if a Iurie be charged to trie an Issue if some of them fall out and fight this is no Riot in the residue assembling to a lawfull end 22. H. 6. 37 3. H. 7. 1. 10. St. 17. R. 2. 8. St. 1. M. 12. 8 St. 3. H. 4. 17 Sta. 8. H. 6. 9. St. 3. Ed. 1. 9. And it is lawfull for the Sheriffe Vndersheriffe or Bayliffe to take the power of the Countie what number they shall thinke good to execute the Kings processe And so may any Iustice or Iustices of Peace and the Sheriffe and the Vndersheriffe take any power of the Countie to represse Riots Routes vnlawfull or Rebellious Assemblies Or to remooue such persons as by Inquisition are found to haue made forcible Entries into other mens possessions or to detaine them with force And so may a Iustice of Peace Sheriffe or Constable take of the Countie any number that they will to pursue and apprehend Traytours Murderers Robbers or other felons or such as doe breake or goe about to breake or disturbe the peace For though in the cases last specified there be three or aboue assembled together yet it is to execute the iustice of the Lawe and by that meanes to preserue peace And it is a lawfull assembly which is gathered together to runne at Tilt Iusts or Barriers by the Kings commaundement for the cause beginning and end thereof doe tend to obedience the laudable exercise of true valour and manhood and to the encouragement and enabling of the actors therein to defend the Realme and the peace thereof 7 And though by the before specified Statute of Anno 34. Edw. 3. it is ordained that Iustices of Peace shall restraine offendors Riotors and all other Barrators and pursue take chasten imprison and punish them according to their trespasses and offences to the intent that the people bee not by such Riotors troubled or indammaged nor the peace broken nor any passengers by the way disturbed or put in perill Yet by force of that Statute the Iustices of Peace could not require the helpe of the Sherife nor commaund the power of the countie to helpe to assist them St. 17. R. 2. 8. to represse the said Riotors Whereupon by the before mentioned Statute of Anno 17. R. 2. it is defended That none shall make assemblies riot or rout against the peace in any wise And if any such assembly be begun as soone as the Sherifes Disturbing of riotors and other the Kings ministers may haue knowledge thereof they with the power of the countie where such case shall happen shall disturbe such malice with all their power and shall apprehend all such offendors and put them in prison vntill due execution of the law be made of them and all Lords and other liege people of the Realme shall attend with their whole strength and power the Sherifes and ministers aforesaid 8 But because the said Statute of 17. R. 2. or any other Statute or Law before that time made doth not enable the Iustices of Peace and Sherife to record that which they shall find done in their presence against the law nor to make enquirie thereof nor to heare and determine the same nor to make certificat thereof to the King and his counsell if the truth cannot be found Nor doth assigne what Proces shall bee awarded against the offendors nor doth inflict any penaltie vpon the Iustices which shall not execute the law Therefore by the before rehearsed Statute made Anno 13. St. 13. H. 4. 7 H. 4. it was established that if any riot assemblie or rout of people against the law be made in any part of the Realme the Iustices of peace three The Iustices and sherifs shall arrest Riotors or two of them at the least and the Sherife or Vndersherife of the shire where such riot assembly or rout shall be made shall come with the power of the countie if néed bée to arrest them And the Iustices Sherife or Vndersherife shall haue power to record that which they shall find done in their presence against the law And the same trespassors and offendors shall bee conuict by the Record of the same Iustices Sherife or Vndersherife in manner and forme as is contained in the Statute of forcible entries The forme of Recording of which riot is this Buck. Recording of a riot viz. Memorandum quod primo die Martij anno regni regis Domini nostri Iacobi dei gratur c. tertio Nos Franciscus Goodwin miles Alexander Hamden miles Iusticiarij domini Regis nunc ad pacem in comitatu praedicto conseruandam necnon c. assignati Richardus Ingolsby miles adtunc vicecomes eiusdem comitatus ad querimoniam A. B. de Wadsdon in comÌ„ praedicto yeoman in proprijs personis nostris accessimus ad domum mansionalem ipsius A.B. apud Wadsdon praedictur ibidem inuenimus quosdam C. D. E.F.G. alios malefactores pacis dicti domini Regis perturbatores ignotos ad numerum octo personarum modo guerrino arraiatos viz. cum gladijs baculis arcubus sagittis riotosè illegitimè aggregatos eandem domum sic custodientur in magnam perturbationem pacis dicti domini Regis populi sui terrorem contra formam statuti in Parliamento domini Henrici nuper Regis Angliae quarti Anno Regni sui decimo tertio tento editi Et ideo nos praefati F. G. A.H. corpora pÌ„dictoruÌ„ C.D.E.F.G. ad tunc arrestauimus ac proxime Gaole dicti domini Regis in Com' pÌ„dicto duci fecimus ê‘ recordum nostrum de transgressione praedicta conuictos in praesentia nostra ibidem moraturos quousque finem dicto domino Regi ê“ transgressione sua praedicta fecerunt In cuius rei testimonium huic recordo nostro sigilla nostra apposuimus Datur apud Wadsdon praedict ' die Anno praedictis 9 By the same Statute of 13. H. 4. it is further ordained St. 13. H. 4. 7 That if it happen such Trespassors and offendors be departed before the comming of such Iustices Inquirie of a Riot by the Iustices c. and Shirife or vndershirife the same Iustices thrée or two of them shall diligently inquire within a moneth after such Riot assembly or Rout of people so made and the same shall heare and determine according to the lawes of this Realme And because the said Iustices of peace Shirife c. are by this braunch of the Statute to make inquiry of the Riot which must be done by a Iury returned by the Shirife the forme of the said Iustices precept to the Shirife to returne the said Iury is this Buck. viz. Henricus Longuile miles Willihelmus Anderous miles Iusticiarij Domini
persons at the nomination and by the aduise of the Chauncellor of England And the said Commissioners incontinently shall send into the Chauncery the Enquests and matters before them in this behalfe taken and found Vpon the Cōmission the coronors shal returne the Iury 14 The Coroners of the same Countie for the time being St. 2. H. 5. 8. in which Countie such Riot Assemblie or Rout shall be made shall make the panell vpon the said commission retornable for the time that the Shirife so supposed in default shal remain in his office which Coroners shal return no persons but only such which haue lands c. to the value of x. l. by the yere at the least And also the same coroners shal return vpon euery of the said persons impannelled at the first day when issues be to be lost xx What issues shal be returned vpon the Iurors s. at the least at the second day xl s. at the least at the third day C. s. at the least at euery day after the double at the least which issues so returned because of non-appearance of such persons impanneled shall be forfait to the King and leuiable to his vse And if default be found in the said coronors touching the returne of such persons to be impanneled or touching the returne of such issues as afore is said euery of them shall pay to the Kings vse forty pounds Where the shirife shal return the Iury and not the coronors 15 And if the Shirife so reputed in default be discharged of his office St. 2. H. 5. 8. at the time that such commission shall goe out of the Chauncerie then the new Shirife of the same County his successor mediate or immediate and not the coronors shall make the pannell vpon this commission returnable in manner and forme as the said coronors should doe in time when the Shirife so reputed in default stood in his office And the same Shirife shall incurre like paine of xl li. to the King if any default in him be found touching the returne of other persons by him impannelled which haue not lands tenements or rents to the value of x. li by the yeare or of returning such issues as the said coronors be aboue charged to returne as the said coronors be to lose to the King in this behalfe A writ directed to enquire of a Riot 16 The Chauncellor of England as soone as he may haue knowledge St. 2. H. 5. 8. of such Riot assemblie or Rout shall cause to be sent the Kings writ to the Iustices of peace and to the Shirife or vndershirife of the County where they be so made that they shall put the foresaid Statute of 13. H. 4. in execution vpon the paine contained in the same And though such writ come not to the said Iustices Shirife or vndershirife they shall not be excused of the paine of 100. pounds aforesaid if they make not execution of the said Statute Riots shal be inquired of at the Kings costs 17 The Iustices and other officers aforesaid shall doe their offices at the Kings costs in going tarrying St. 2. H. 5. 8. and returning in dooing their said offices by payment thereof to be made by the Shirife of the same County for the time being by Indentures betwéene him and the said Iustices and other officers aforesaid to be made of the payment aforesaid whereof the said Shirife vpon his accompt in the Exchequer shall haue due allowaunce St. 2. H. 5. 8. 18 Such Riotors attainted of great and haynous Riots The punishment of Riotors shall haue one whole yeares imprisonment at the least without being let out of prison by baile mainprise or in any other manner during the yeare aforesaid and the Riotors attainted of petit Riots shall haue imprisonment as the King and his Councell shall thinke good St. 2. H. 5. 8. 19 The Kings liege people being able to trauaile in the Countie where such Riots assemblies or routs shall be made shal be assistant to the Iustices Each man shall helpe to represse Riots commissioners Shirife or vndershirife of the same County when they shal be reasonably required to ride with the said Iustices Shirife or vndershirife in aide to resist such Riots Routs and assemblies vpon paine of imprisonment and to make fine and ransom to the King St. 2. H. 5. 8. 20 The Bailifes of franchises Bailifes of Franchises shall impannell sufficient people as before vpon paine to loose xl li to the King in case that such sufficient persons may be found within the said franchises Corporat towns hauing Iustices And like ordinances and paines shall hold place and take effect in Cities Boroughs other places and townes enfranchised which haue Iustices of peace within them 21 Forasmuch as in the before rehearsed Statute of 13. H. 4. it is not expressed of what sufficiency the Iurors impannelled by the Shirife to inquire of Riots should be Nor what issues they should lose if they appeare not Nor any mention is made of any punishment the maintenors and embraceors of the Iurors that so shall be impannelled should haue for their misdemeanor A Iury to enquire of Riots if any should be St. 19. H. 7. 13. Therefore by a Statute made Ann̄ 19. H. 7. it was enacted that if any Riot Rout or vnlawfull assemblie be committed within this realme the Shirife hauing a precept directed to him shall returne xxiiij persons dwelling within the Shire where such Riot c. shall be so committed whereof euery of them shal haue lands and Tenements within the same shire to the yearely value of xx s. of Charter land or fréehold or xxvj s. viij d. of copihold or of both aboue all charges for to inquire of the said Riot Rout or vnlawfull assemblie And he shall returne vpon euery person so by him impanelled in issues at the first day xx s. at the second xl s̄ if that they appeare not and be sworne to enquire of the premisses at the first day And if default be found in the Shirife or vndershirife for returning of other persons being not of the same sufficiency or for not returning issues in forme aforesaid then the said Shirife shall forfeit to the King for either twenty pounds St. 19. H. 7. 13. 22 If the said Riot Rout or vnlawful assemblie be not found by the said Iury by reason of any maintenance or embracery of the Iurors Maintenance where by a Riot is not found then the same Iustices and the Shirife or vndershirife beside such certificat that they be bound to make according to the foresaid Statute of 13. H. 4. shall in the same certificat certifie the names of the mainteinors and embraceors in that behalfe if any be with their misdemeanors that they know vpon paine of euery one of the said Iustices and Shirife or vndershirife to forfait xx li. if they haue no reasonable excuse for not certifying of
case of felony Relieuing them which be assembled 35 If any wife or seruant of any of the same persons 1. M. 12. or any other person whatsoeuer shall willingly and without compulsion bring send deliuer or conuey any money harnesse artillerie weapon meat bread drinke or other victuall to any person or persons so beeing assembled as is aforesaid during such time as he or they shall so be assembled or be together as is aforesaid then euery wife seruant or other person so bringing or conueying c. any of the foresaid things to the same persons so beeing assembled together in forcible manner or to any of them and not departing to their houses or dwelling places vpon request or commandement made vnto them as is aforesaid shall bee adiudged a felon shal suffer execution of death as in case of felonie Vnlawful assemblies aboue two and vnder twelue 36 If any persons aboue the number of 2. and vnder the number of 12. 1. M. 12. beeing assembled together shal intend goe about practise or put in vre with force of armes vnlawfully of their owne authoritie to murder kill or slay any of the kings subiects or to ouerthrowe cut breake or cast downe or dig vp the pales hedges ditches wall or other closure of any parkes or parke or other ground inclosed or the bankes of any fish-pond or poole to the intent that the same or any of them from thenceforth should remaine open not inclosed or void or to haue common or way in the same parks or parke or other grounds or ground inclosed or in any of them or to destroy any parkes or parke or fish-pond or poole or any warrens or warren of conies or any doue-houses or to pul or cut down any house barne or mil or to burne any stacke of corne or graine or to alter defaulke or abate the rents or yearely value of any mannors lands or tenements of any of the Kings subiects or the price of any victual corne or graine or any other thing vsuall for the sustenance or apparell of men and being required or commanded by any Iustice of peace or the sherife of the countie or by any mayor bailife or bailifes or other head officer of any citie or towne corporat where such assembly shall be had by Proclamation to be made in the Kings name to retire or returne to their habitations places or houses and they so required by such proclamation shall not so do but after that shall in forcible manner in forme aforesaid attempt to do or put in vre any of the things last aboue mentioned then euery of the same persons beeing aboue the number of two and vnder the number of twelue shall suffer imprisonment of his or their bodies by the space of one whole yeare without baile or mainprise The remedie of the parties grieued And also if any person or persons shall be damnified or hurt by the doing committing or putting in vre of any vnlawfull act or thing aboue mentioned then all and singular persons so damnified and hurt shall recouer and haue dammages with the costs of their suit sustained in that behalfe trebled against the offendors therein 1. M. 12. 37 If any persons aboue the number of two shal vnlawfully of their own authoritie assemble together to the intent with force and armes to do practise Raising of power to suppresse vnlawful assemblies or put in vre any of the things aboue mentioned Then it shall be lawfull to euery Iustice of peace to euery Sherife in any countie beeing within the K. dominions and to euery mayor bailife and other head officer of any citie or towne corporat for the time he shall be in office or any other person or persons hauing the K. commission or Letters from his highnes as wel to raise and assemble the kings louing subiects in maner of warre to be arraied in such great number as he or they then shall thinke meet or able to the intent by violence of strength to suppresse apprehend and take the said persons that shall bee so vnlawfully assembled And if the said persons so vnlawfully assembled after such cammandement or request by proclamation made shal continue together and not endeauour themselues to returne towards their habitations houses or places from whence they came in as short time as they may conueniently Then it shall be lawful to euery I. of peace sherife and also euery mayor bailife and other head officer of any citie or town corporat to euery other person hauing authoritie as is aforesaid after such commandement or request by proclamation made and to such persons as shal be assembled with any Iustice of peace or sherife or with any mayor bailife or other head officer of any citie or town corporat and with euery other person hauing authoritie as is aforesaid to suppresse apprehend take those persons so vnlawfully assembled which after such proclamation made shall continue together and not endeauour thēselues to returne towards their habitations c. And if the said persons so vnlawfully assembled together or any of them shall fortune to be killed slaine maihemed or hurt in or about the suppressing or taking of them then euery such Iustice Sherife Maior c. and euery other person hauing authoritie as is aforesaid and all and singular persons by him or them assembled shal be frée discharged and vnpunishable as well against the king as against all and euery other person and persons of for or concerning the killing maiheming or hurting of any person or persons so vnlawfully assembled that shall be killed slaine maihemed or hurt about or by occasiō of taking or suppressing of thē c. 1. M. 12. 38 All and euery Copieholder and Customary holder being a yeoman artificer husbandman A copieholder being required refuseth to serue or labourer being of the age of xviij yeares or more vnder the age of lx years not sicke impotent lame maihemed neither hauing any other iust or reasonable excuse or cause to the contrary and beeing required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commission or letters c. they declaring their said authoritie or being required by the immediat Lord or Lords of whom such copie or customary holds then shall be holden to serue the King for any the causes aboue rehearsed and refuse so to doe shall only during the life of such person or persons so refusing forfeit to his Lord or Lords of whom such copie or customarie holds then shal be immediatly holden should be holden during the life of such person or persons so refusing in case he had not refused all their copie customarie holds And it shal be lawful to euery such Lord c. his heirs or assignes of whom such copy or customary holds shal be immediatly holden should haue bin holden in case that such persons or persons had not so refused to enter
take into his or their hands or possessions all such copie customarie holds so holden of thē or any of thē immediatly to retain the same during only the life of such offēdor or offendors in such maner as he or they should haue had the rents or seruices of such copy or customary hold in case such person or persons so refusing had not refused A farmer required refuseth to serue 39 All euery farmer being a yeoman husbandman artificer or labourer 1. M. 12. beeing of the age of xviij yeares or more vnder the age of lx years not sick impotent lame maihemed nor hauing any other reasonable excuse or cause to the contrary being required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commissiō or letters c. they declaring their said authoritie or being required by their said Landlord or Landlords for the time being to whom the rents of such farmes shal be then rising growing or comming to serue the king for any the causes aboue rehearsed and refuse so to doe shall during only the life of such farmer or farmers so refusing forfeit and loose to such Landlord and Landlords as should haue had the rents of such farmer during the life liues of such person persons so refusing all their said farmes And it shal be lawfull to euery such Landlord c. their heires and assignes to whom the rents of such farmes should haue bin due during the life of such person or persons so refusing in case he or they had not refused to enter take into his or their hands or possessiō al such farms to retain the same only during the life of euery such offēdor or offendors But after the death expiration or determinatiō of the interest or terme of yeares of euery such copyholder customary holder or farmer as so shal offēd forfeit any of the said copi-holds customary holds or farmes as is aforesaid thē euery such person as should or ought to haue had the copy holds customary holds or farmes after or by the death expiration or determination of the interest or terme of years of such copie-holder customarie holder or farmer in case such copie-holder customarie holder or farmer had not so offended ne forfeited shall and may haue the same copie-hold customarie holds and farmes by entrie action admission or otherwise in like manner forme and condition and by such meanes as they and euery of them should might or ought to haue had if no such forfeiture or offence had bin had done or committed 40 If any person shal be spoken vnto moued 1. M. 12. or stirred to make any cōmotion Disclosing a commotion when one is moued insurrection or vnlawfull assembly for any of the intents aboue mētioned and doe not within 24. houres next after he shal be spoken vnto moued or stirred vnlesse he haue good and reasonable cause of excuse declare the same vnto one Iustice of the peace or Sherife of the said countie or to the Mayor Sherifes Bailifes or other head officers of any citie or town corporat where such commotion c. shall be had he shall suffer imprisonment by the space of thrée moneths without baile or mainprise vnlesse he shall be discharged by 3. Iustices of peace whereof one to bee of the Quorum of the same shire where the offence shall be committed 1. M 12. 41 If any person béeing aboue the age of eightéene yeares An able person required refuseth to serue and vnder the age of thréescore beeing able to serue and not sicke lame or impotent shall be required by any Iustice of peace or any Sherife of any Countie where any such assembly shall be or by any Mayor Bailife or other head Officer of any citie borough or towne corporat or by any other by the commandement of any such Iustice Sherife Maior c. to goe with him or them to suppresse the persons vnlawfully assembled in manner and forme aforesaid then euery person which so béeing able and required doth willingly and obstinately refuse so to doe shall suffer imprisonment for one whole yeare without baile or mainprise 1. M. 12. 42 If the King shall by his Letters patents make any Lieutenant in any Countie or Counties of this Realme Attendance vpon a lieutenant for the suppressing of any commotion rebellion or vnlawfull assemblie then as well all Iustices of peace and the Sherife and Sherifes of the same as all Maiors Baylifes and other head officers and all inhabitants and subiects of any Countie Citie Borough or towne corporat within euery such Countie shall vpon declaration of the said Letters patents and request made bee bound to giue attendance vpon the same Lieutenant to suppresse any commotion rebellion or vnlawfull assemblie vnlesse hee so required haue any reasonable excuse for his not attendance vpon paine of imprisonment for one whole yeare 1. M. 12. 43 The order and forme of the Proclamation that shall be made by the authoritie of this Act shal be as hereafter followeth The forme of the Proclamation or with the like order and words in effect viz. The Iustices or other persons authorized by this Act to make the said Proclamation shall make or cause to be made an Oyes and after that shall openly pronounce or cause to be pronounced these wordes or to the like effect The King our Soueraigne Lord chargeth and commandeth al persons being assembled immediately to disperse themselues and peaceably to depart to their habitations or their lawfull businesse vpon the paine contained in the act lately made against vnlawfull and rebellious assemblies And God saue the King 1. M. 12. 44 If any person or persons doe or shal molest let hinder Hinderance of the Proclamation or hurt any person or persons that shall proclaime or go to proclaime according to the proclamation and order aforesaid whereby such proclamation shal not be made then euery such person so molesting or hurting c. and hauing knowledge of his message shall incurre such daunger and suffer such paines and forfeitures the persons assembled to whom the proclamation should haue beene made should by this Act incurre for not obeying the Proclamation if it had béene made or for doing after the Proclamation of any the things before expressed And also all such persons beeing assembled to the number aforesaid to attempt or doe any the things aforesaid to whom Proclamation should or ought to haue beene made if the same had not beene let shall likewise in case they doe after put in vre and doe any the things aforesaid hauing any wayes knowledge of the let so made or by any meanes procuring the same let incurre like danger and suffer like paines and forfeitures aforesaid in euery their degrees as though the proclamation had beene made any clause article c. in this Act c. notwithstanding Other mens right saued 45 All
by the bringers hereof the bodies of the said C. D. E. F. conuicted of the said forcible holding by my record commanding you and euery of you in his Ma. name that you receiue them safely keepe them in your said Goale vntill they shall haue made their fine and ransome to the King and be deliuered thence by the order of the law Hereof faile you not vpon the perill that will fall thereof Dated at Salden the 30. day of I. in the third yere of the raigne of our soueraign Lord K. Iames c. 16 And though the words of the before rehearsed stat of 8. H. 6. be Vpō cōplaint made to the I. of P. or one of thē c. yet those words do not alwais bind a I. of P. to expect the cōplaint of the party grieued or to omit to do his duty in inquiring of repressing punishing of force because the party grieued by the forcible entry or detaining of possessiō is ignorāt in séeking lawfull redres for his receiued iniury or doth intēd to take his remedy by other means but a I. of P. hauing notice of such forcible entry A Iustice may inquire of forcible entries without complaint or detaining of possession by force though it be by others and not by the party grieued may and of duty ought to goe to the place where the same force is committed to make inquisition thereof 7. E. 4. 18. and if the force be found to make restitution to the party expelled or put out by force And so by his meanes the offendor shall be punished according to his desert the partie wronged shal be restored the king shall be intituled to a fine all which without the said Iustices diligence would be omitted An action of forcible entry 17 If a man that is seised of lands or tenements of an estate in fée simple Fitz. Na. B. 248. fée taile for terme of his owne life or for the terme of anothers life be disseised or expelled thereof by force he may haue an action of Trespas of forcible entry vpon the foresaid statute of 8. H. 6. against him or them that did so disseise or expell him thereof and so he may if he be put out 6. H. 7. 12. or disseised of his lands or tenements peaceably and after the disseisor or he that doth expell him 14. H. 6. 1. doth hold them with force And in like sort he may haue the same action 3. E. 4. 19. 10. E. 4. 11. if any doth enter into his said lands or tenements with force after doth defend and hold them by force then he which is so put out and holden out with force may haue this action though the words of the statute be in the disiunctiue viz. disseised with force or disseised quietly after holden out with force for that the intent of the statute was to punish all such forces whether it were vpon the entry disseisin made or vpon the holding and detaining of the land with force in all which cases he who is so disseised or put out may haue an action of forcible entry vpon the said statute of 8. H. 6. and shall recouer his damages and costs to the treble of that which shal be found by the Enquest that he is endammaged 19. H. 6. 6. 22. H. 6. 57. 9. H. 6. 19. hath spent in his suit The writ of forcible entry must be Vi armis as wel for the occupation as for the first entry And it is to be noted that the writ declaration in an action of forcible entry must be that the def entred vi armis and not illicite or by any other such words for if the writ be otherwise it shall abate seeing a writ of forcible entry is alwaies vi armis 37. H. 6. 23. 38. H. 6. 1. and proces of Outlawry lieth in it and the declaration must expresse the certainty of the lands whereupon the defendant did make his forcible entry and which they be and not suggest that he did enter vpon certaine lands in D. And in this action of Forcible entry 35. H. 6. 6. 49. Ed. 3. 2. Co. lib. 3. 12. and in all actions Quare vi et armis a Capias doth lie and where a Capias doth lie in the proces there after iudgement a Capias ad satisfaciendum doth lie and there the king shall haue a Capias pro fine Who may brīg an actiō of forcible entry 18 None can pursue or maintaine this action of Forcible entry Fit Na. B. 248. but he who hath fréehold at the least in the lands or tenemēts so entred vpon for tenant for terme of yéeres or a copyholder cannot maintaine this action for that the words of the said stat of 8. H. 6. be If any person be put out Sta. 8. H. 6. 9 or disseised of any lāds c. and the words of the writ grounded vpon the said statute be Expulit et disseisiuit and tenant for terme of yéeres or a copyholder cānot be disseised séeing disseisin is alwaies of a fréehold which neither of them haue in that land But if tenant for terme of yéeres or a copiholder be put out by force or put out peaceably after holden out with force of land which either of them doth hold by the said estate then vpon cōplaint made by the party grieued to a I. of peace after inquisition thereof by a Iury the same force found the said Iust may reseise the said lands cause restitution thereof to be made to the party so put out for in this case the same cōplaint may be made to the said I. of P. aswell by him in the reuersiō as by the tenāt for terme of yeres or copiholder séeing he in the reuersiō who is disseised of his fréehold by this forcible entry is may as well be termed the party grieued as the tenant for terme of yéeres or the copyholder for their said particular estates And when the Iustice of peace hath made restitution the particular tenant for terme of yeares or copyholder and also he or they in reuersion shall hold and enioy their said seuerall estates in the same lands 4. 5. P. M. Di. f. 142. in such sort as they did before the said Forcible entry made But if tenant for terme of yeares be expelled out of that land which he so holdeth for the terme of yeeres he in the reuersion cannot bring an action of Forcible entry vpon the statute of 8. H. 6. for the same although it be a disseisin to him for that the expulsion is not done immediatly to him Fit Na Br. 248. 9. H. 6. 19. 19 If a man do enter by force into lands or tenements He that hath title entreth by force wherunto he hath right or title to enter doth put out him who hath the freehold of the same lāds in this case he who is so
for commencing a wrong full suit for the law doth intend those suites to be pursued for vexation trouble and likewise in some other cases the def is amerced for the wrongfull detaining of that which is not his owne and for inforcing the plaintife by suit in law to séeke recouer his owne But as in all cases the vnlawfull maintainor of suits is in fault so is he in euery such case punishable For though the case of the plaintife or def which he vndertaketh to maintaine be iust and lawfull in him who prosecuteth or defendeth the suit whose the cause is yet in the maintainor it is vnlawfull for it is not his owne suit neither is it pursued or defended for the recouery or protection of that which he pretendeth to be due to himself and so in a sort he maketh complaint where he hath no wrong or maketh defence where none séeke to hurt him whereby opposing himselfe against others who do not contend with him he laboureth to disturbe the ordinary course of iustice and therewith to blemish the peace of the Realme for as it appeareth partly by the statute of Anno 1. Ed. 3. Sta. 1. E. 3. 14 and specially by the preamble of the statute of Anno 32. H. 8. St. 32. H. 8. 9 Nothing conserueth the people in more peace good concord then the due administration of iustice and the indifferent triall of titles and issues according to the Lawes of this Realme which being hindered letted by Maintenance Embracery Champertie Subornation of witnesses sinister labour and buying of titles there will of necessitie insue thereof great periurie vnquietnesse oppressions troubles wrongs and disheritances 2 And because this Maintenance is as an euill Trée hauing growne out of it many corrupt branches therefore the wisdome of the Realme hath frō time to time prouided seuerall statutes as it were sharpe hatchets to loppe or shred those boughes when they did spring and shoot out As King Ed. 3. Maintenance by men of authority perceiuing that his Counsellors Magistrates and Officers in his house certaine great men of the Realme by sending of Letters Messengers giuing of Liueries by other means did sollicite matters and maintaine quarrels and tooke parts in the Countrey St. 1. E. 3. 14 20. Ed. 3. 3. by a statute made Anno 1. of his raigne and another Anno 20. of his raigne did ordaine That common right should be done to all persons as well poore as rich and that none of his said Officers nor any Noblemen nor any other great or small should take vpon him to maintaine quarrels or to take parts to the let or disturbance of the common law Nor that any should take in hand or meddle with quarrels or questions but their owne And because there was no speciall punishment ordained by the said statute of Anno 1. Ed. 3. for those who should transgresse that Law therfore King R. 2. by a statute made in the first yeare of his raigne established St. 1. R. 2. 4. That if the kings Counsellors or great Officers should take vpon them to sustaine any quarrell by Maintenance in the Countrey or elsewhere he so offending should indure that paine which should be inflicted by the King himselfe by the aduice of the Lords of his Realme and other inferior officers and seruants of the Kings in the Exchequer and other Courts and his meniall seruants shall loose their offices and seruices and be imprisoned be ransomed at the kings pleasure euery of them according to his degrée estate and desert and all other persons of the Realme of what estate soeuer they be shal be imprisoned and ransomed as the other aforesaid St. 33. Ed. 1. 3 The statute intituled Definitio de conspiratoribus made Anno 33. E. 1. Maintenance by cōbination doth decypher another sort of Maintainors which there be called conspirators in this sort St. 1. R. 2. 7. viz. Conspirators be they that bind themselues by oath couenant or other alliance that euery of them shall helpe and sustaine the other falsely maliciously to indite or falsely to moue or maintaine pleas and also such as cause children within age to appeale men of felony whereby they are imprisoned sore grieued and such as retaine mē in the country with liueries or fées to maintaine their malicious enterprises and this extendeth aswell to the takers as to the giuers and stewards and bailifes of great lords Maintenance by noblemens officers which by their seigniorie office or power vndertake to vphold or maintaine quarrels pleas or debates that concerne other parties then such as touch the estate of their lords or themselues 4 There is also another kind of Maintenance which is called Champerty Maintenance by champerty and the offendors therin be called Champertors whom the foresaid statute of Anno 33. St. 33. Ed. 1. E. 1. doth define in this maner Who be champertors viz. Champertors be they that moue pleas and suits or cause to be moued either by their owne procurement or by others sue them at their proper costs for to haue part of the land in variance or part of the gaines which Champertors were accounted great maintainors of suits and professed enemies to peace whereupon it was ordained by the statute of West 1. St. 3. E. 1. 25. That no Officer of the Kings by themselues nor by other shall maintaine pleas suits or matters hanging in the Kings Court for Lands Tenements or other things for to haue part or profit thereof by couenant made betwéene them and he that doth shall be punished at the kings pleasure and after by the statute of Westm 2. St. 13. E. 1. 48 the same was expressed more at large by the which it was enacted That the Chauncellor Treasurer Iustices nor none of the Kings Councell no Clarke of the Chauncerie nor of the Exchequer nor of any Iustice or other Officer nor none of the Kings house Clarke nor Lay shall receiue any Church land nor tenement by gift in fée nor to farme nor for purchase nor otherwise so long as the thing is in plea in the Kings Court or before any of his Officers nor shall take reward therefore and hee that doth contrary to this Act eyther himselfe or by any other or make any bargaine shall bee punished at the Kings pleasure as well he that doth purchase as he that doth giue And because other Officers were not bound by the foresaid Statutes as well as the Kings and to the intent some certaine and more sharpe penaltie might bee imposed vpon the transgressor of the said statutes then before time had béene prouided Therefore by a statute made Anno 28. E. 1. St. 28. Ed. 1. 11. intituled Articuli super Chartas it was ordained That no Officer nor any other for to obtaine part of the thing in plea shall maintaine any matter that is in suit Nor none vpon such couenant shall giue vp his
is depending to giue iudgement for the plaintife then the def may haue an action of Maintenance against him for that the same iudgemēt is a thing wholly belonging to the office of a Iudge and not of a Iuror therfore he doth therin intermeddle with another mans office and another mans cause more than he hath to do or may iustifie and so hath committed vnlawfull maintenance Maintenance in a Iuror 18 If a Iurie be charged to inquire of a matter in issue 17. E. 4. 5. 18. Ed. 4. 4. one Iuror may persuade his cōpanions or any of them to passe for the plaintife or def as he conceiueth the truth of the cause to be or as their euidence doth induce them this is no maintenance but if one of the Iurors will giue or promise money to another of his fellowes to giue his verdit for the pl. or def this is vnlawfull maintenance though he doth wage him to giue his verdit according to truth and right of the cause in issue Maintenance by speaking of words 19 If a man of great authoritie in a country will in the presence of a Iurie 22. H. 6. 5. 13. H. 4. 19. and the standers by at the tryall of an issue say openly that he will spend mony in the cause in question in the behalfe of the pl. or the def or that hee will giue money to labour the Iury or wil speake other great or high words in fauor of one of the parties this is vnlawful maintenāce in him though he do spend no mony in that cause nor doth labor the Iury therin for it may be that whē the Iury do by his words know his meaning they dare not in respect of his authoritie or greatnesse in that coūtie giue their verdit otherwise thā he would haue them None shall sit with the Iust of Assise on the bench And for the preuention of that kind of maintenance by a stat made An. 20. R. 2. it was ordained That no Lord or other of the country great or small St. 20. R. 2. 13. shall sit vpon the bench with the Iust of Assise in their Sessions in any of the Shires of England vpon paine of a great forfeiture to the King neither the Iustices shall suffer the contrarie to bée done Maintenance in comming to the barre with one of the parties And in like sort if a man of great authoritie in the Countie where an Issue is to be tried hauing nothing to doe in that cause doth come to the barre with the plaintife or defendant 22. H. 6. 6. that is one of the parties to an Issue that is then to bée tryed and standeth by him this is an vnlawfull maintenance in him though hée neither doth nor yet speaketh any thing in the matter for his presence and companie with the one partie doth shew to the Iurie his particular affection to the same partie and doth ofttimes induce them to fauour as much as labour and persuasion by words could doe And though the Iurie doe not respect him but giue their verdict for the other partie to that suit according to their euidence and the truth of the cause in question yet he hath done what in him lyeth to the contrarie 21. H. 6. 15. 22. H. 6. 5. 28. H. 6. 7. Dyer fo 95. 20 And so it is if two be in suit and do ioyne in issue Maintenance by giuing of money to labour a Iurie and the Master of one of the parties to that issue or any other will deliuer money of his owne to a stranger to labour the Iurie impanelled to try that issue to giue their verdit for his said seruant or friend this is maintenance vnlawfull in the Master or other though the partie to whom the money was giuen did neuer deliuer it to the Iurie nor did not labour vnto them in such sort as hée was directed or though the Iurie did giue their verdict against his said seruant for when the Master had deliuered the money to the stranger and told him to what purpose he should vse it he had done as much as he could do in that suit to hinder the course of iustice though his direction tooke no successe according to his desire And also it is vnlawfull maintenance if one giue money to a man that is impanelled of a Iurie to giue his verdict on the one side though that partie impanelled doth not appeare or do appeare and is drawne out by challenge or otherwise 22. H. 6. 6. And it is maintenance vnlawfull if one do threaten to kill or beat a Iuror if he do not giue his verdict for the one part to that issue which hee doth name though the same Iuror do otherwise 28. H. 6. 6. 21 If a Iurie do come to a mans house What is maintenance in a witnesse and what not and desire him to informe them of the truth of a matter whereof they do doubt and he doth informe them therof this is iustifiable But if one do come to a Iurie or of himselfe do labour to informe them of the truth of a cause in question this is maintenance vnlawfull and therefore punishable And so it is if the Court be informed by the plaintife or defendant when an issue is to be tryed that there is a man at the bar or in that place who doth know the truth of the matter in issue and doth desire that the same man may be examined by the Court to testifie the truth of that cause in question to the Iurie and the Court doth cause him to be called to testifie his knowledge therein and he at the commaundement of the Court deliuereth that which he doth know in that matter this is maintenance iustifiable But if the same partie will come to the barre of his owne head and testifie for the plaintife or the defendant this is vnlawfull maintenance and hée may be punished therefore 22. H. 6. 6. 22 If one man do labour to indict another by force whereof he is indicted Maintenance by procuring of an indictment in this case hee that is indicted may haue a writ of Maintenance against the procurer of that indictment and yet this is no quarrell but it is a taking of a part St. 1. E. 3. 14. and so prohibited by the stat of anno 1. E. 3. and it is in the nature of an action betwéene the King and the partie indicted and the foresaid statute is generall that it shall not be lawfull to any person great or smal to maintain quarels or to take parts to the let or disturbance of the Common law What is maintenance in a mainpernor 23 If a man be arrested indicted or sued 34. H. 6. 25. 14. H. 6. 6. 18. E. 4. 12. so that he is compelled to become bound with mainpernors for his apparance the mainpernor may come into the Court and sée the apparance of the same partie recorded and iustifie the
to haue execution of a fine if the shirife returne the tenant of the land summoned by two summoners whereas he was not summoned by which returne the demaundant shall recouer and haue execution of the land if the tenant do not appeare and the tenant shall loose the land in this case the tenant may haue a writ of Deceit against the shirife and the demaundant that did recouer and him that is then tenant of the land and shal be restored to his former possession And the like law is 17. Ed. 3. 12. if a man sue a Scire facias vpon a Recognizance against another for a debt before recouered Deceit to auoid a recouery of debt if the shirife returne the defendant summoned whereas he was not summoned by reason wherof the defendant hath execution awarded against him of the debt then the defendant may haue a writ of Deceit against him that had the execution and the shirife and the shirife shall be punished for his false returne and the party who did recouer shall make restitution of that which he recouered and if the defendant die his executors may haue a writ of Deceit Where executors shall haue a writ of Deceit and be restored if the deceit be proued and that the Testator was not garnished whereupon the garnishers shal be examined And so it is if a man recouer in a writ of Annuity Annuity and after doth sue a Scire facias and recouereth by default of garnishment Fitz. Deceit 42. the defendant may haue a writ of Deceit For by the statute of Anno 2. Ed. 3. St. 2. E. 3. 17. 17. a writ of Deceit holdeth place and is maintenable as well in case of garnishment which toucheth plea of land where such garnishment is giuen as in case of Summons in a plea of land for in all the cases aforesaid a Deceit was wrought by the shirife to the Court and the party grieued by his false returne and the Law hath ordained That euery of those deceits shal be reformed by the writ of Deceit And a recouerie and iudgement had made and giuen to the intent to defraud and frustrate the true meaning of a statute shal be void as amongst others it appeareth by the statute of Anno 43. A iudgement to defraud the meaning of a statute Eliz. whereby it was ordained St. 43. Eli. 9. That all iudgements which shal be had for the intent to haue enioy any lease of a benefite with cure or any bonds contracts promises couenants made for any person to enioy the same contrary to the statute of An. 13. El. 20. An. 14. El. 11. or any of them shal be void in such sort as bands couenāts are appointed to be void which are made void for that purpose for that the suits whereupon the same iudgements be giued were commenced prosecuted vpon collusion fraud to defeat and make frustrate the true intent and meaning of the said statutes or of one of them Deceit vhon recouery in a Quare impedit 8 If any person do recouer against another in a Quare impedit by default of the defendant whereas he was not summoned 27. H. 6. 5. Fitz. Deceit 57. 19. Eliz. Dyer 353. then the same defendant may haue a writ of Deceit and the Summoners and the pledges vpon the attachment and the mainpernors vpon the distresse shall be examined and if the deceit be found the first iudgement shal be reuersed and there shal be a writ awarded to the Bishop to remoue the Clerke that was in the Church And so it is Deceit vpon a recouery in wast if any person do bring an action of Wast against another 29. Ed. 3. 42. 48. Ed. 3. 20. Fitz. Deceit 30. the plaintife doe recouer against the defendant by default whereupon a writ is awarded to the shirife to inquire of the wast whereas the defendant was not summoned the defendant may haue a writ of Deceit against him that recouered in the same action of Wast and he shall suppose that hee was not summoned attached nor distrained and proces shal be awarded against the summoners the pledges and the mainpernors who shal be seuerally examined and if they all did not their duty according to the Law the plaintife in the writ of Deceit shal recouer and be restored to that which before he lost in the action of Wast Deceit vpon a recouery by a Praecipe in capite 9 And the like law is 17. Ed. 3. 31. 36. if any person doe recouer land against another by a Praecipe in capite where the same land is not holden of the King in chiefe but of a meane lord by other seruices and where the demaundant had no licence of the chiefe lord to sue at the common place then the chiefe lord may haue a writ of Deceit against him that recouered the same land wherein he shall recouer his dammages the demandant shal be imprisoned for the deceit and also the lord shal retaine his seigniory in the same land But the recouery shal remain in force and he that did recouer shall also hold of the K. in chiefe by the way of estoppell And this writ of Deceit is maintenable in this case by force of the stat of Magna Charta 9. H. 3. 24. whereby it is ordained That the writ which is called Praecipe in capite shal be granted to no man wherby any fréeman may loose his Court. 10 Couin is accounted so professed an enemy to iustice Where a good title shal be impaired by a couenous recouery therefore is so hated by the law that she adiudgeth that bad and vnlawful which is mixed with couin though before of it selfe it were good lawful as if the issue in taile who hath good cause to bring a Formedon in discender vpon a discontinuance made of certaine lands by one of his auncestors 44. Ass p. 28 41. Ass p. 28 be of couin that a stranger shall disseise the tenant of the land against which stranger he doth bring his action doth recouer this land and hath execution in this case he shall not be remitted to his former estate though his title be good but shall be adiudged in possession by disseisin 44. Ed. 3. 46. 15. E. 4. 4. 7. H. 7. 11 Co. lib. 5. 31 in respect of the couin And so it is if a woman that hath good cause to be indowed of her late husbands lands will be of couin that a stranger shall disseise the tenant of the land wherof she is indowable against which stranger she will bring a writ of Dower and recouer hath execution she shal be adiudged in possession against the disseisée but as a disseisor in respect of her couin though she had good title to be indowed And so couin mingling together vertue vice persuadeth the law to reiect condemne a lawfull title which is vnlawfully atchieued 11
any person or persons or to his or their right heires Or at any time since the said 20. day of Iuly hath conueyed or hereafter shall conuey or make by couin contrarie to the true intent of the Act prouided 34. H. 8. for the making of Wils any estates conditions mesnalties tenures or conueyāces to the intent to defraud or deceiue the King of his Prerogatiue primer seisin liuerie reliefe wardships mariages or rights or any other Lords of their wardships reliefes heriots or other profits which should or ought to accrue growe or come vnto them or any of them by or after the death of his or their tenant by force and according to the Statutes made 32. H. 8. 1. 34. H. 8. 5. and the same estates and other conueyances béeing found by office to be so made by couin fraud or deceit contrary to the true intent of the said Acts Then the king shal haue as wel the wardship of the bodie and custodie of the lands c. as liuery primer seision reliefe and other profits which should or ought to appertaine to him according to the true meaning of the said acts as though no such estates or conueyances by couin had neuer béene had or made vntill the said office be lawfully vndone by trauerse or otherwise And the other Lord and Lords of whom any such lands c. shal be holden by Knights seruice as is aforesaid shall haue their remedy in such cases for his or their wardships of bodies and lands by writ of right of ward and shall distraine and make auowrie or cognisance by themselues or their bailifes for their reliefes heriots and other profits which should haue béene to them due by or after the death of their tenant as if no such estate or conueyance had béene had or made Sauing the right and title of the donees feoffées leasées and deuisées thereof against the said deuisor and his heyres after the interest and title of the King or other Lord therein ended 24 If the father doe make a feoffment of his lands holden by Knights seruice Fitz. Collusion 29. 33. H. 6. 14. Co. li. 1. 122. to his eldest sonne He that is not partie to a fraud shall sustaine no losse then by the foresaid Statute of Marlebridge the Lord of whom the same lands be holden is inpossibilitie to haue the wardship of the said sonne if the father die his said sonne being within age But if the same sonne doe after make a feoffment of the same land to an other bona fide and after the father doth die leauing his sonne within age there this possibilitie is destroyed for that the stranger who had no notice of this fraud hath purchased the land bona fide and therefore shall sustaine no preiudice by it And yet in that case if the sonne had made the Feoffment after the fathers death Co. li. 2. 94. this alienation had not depriued the Lord of his wardship which was once lawfully deuolued vnto him 25 And it is a deceit collusion and defrauding of the lawe and a great disheritance and preiudice to the Lords of the Fee of whome any lands bee holden to giue the same lands in Mortmaine or to doe any Act or procure any thing to be done whereby they may come into Mortmaine contrarie to the statutes of Magna Charta 7. Ed. 2. 13. Ed. 1. 15. R. 2. and 23. H. 8. for the Lordes doe loose the wardships mariages reliefes and other seruices of their Tenants by that meanes And therefore by the Statute of West 2. it was enacted That if any religious or Ecclesiasticall person doe impleade an other St. 13. E. 1. 31. by a Reall action of land and the Tenant will make default after default whereby hee ought to loose the land Then hee which doth recouer shall not haue Execution of the same Land recouered vntill he hath sued forth the kings writ of Quale ius directed to the Escheator of the same countie to make enquirie by a Iurie what right hee that recouered the land hath to the same And if he hath right Deceit and Collusion to bring land into mortmaine iudgement shal be giuen for him he shall haue execution of the same land And if it be found that he hath no right to recouer by his said action but that the lands were lost by collusion betwéen him and the tenant of the land then the land shall accrue to the next Lord of the fee if hée demaund it within a yéere next after the Enquest taken And if he doth not demaund it within a yeare it shall accrue to the next Lord aboue if he demaund it within halfe a yeare after the same And so euery Lord after the next Lord immediat shall haue halfe a yeare to demaund it successiuely vntill it come to the King to whom through the default of other Lords the land shall accrue For this recouerie of land by default by a compact and couin before agreed vpon betwéene the demaundant being a religious or Ecclesiasticall person and the tenant is to defraud the intent and meaning of the Statutes of Magna Charta and an 7. Ed. 1. whereby it was ordained St. 9. H. 3. 37 St. 7. Ed. 1. That if any religious person or other whatsoeuer will buy or sel any lands or tenements or wil receiue the same by colour of any gift or lease or by reason of any other title whatsoeuer or will by other practise or deuise procure the same to himselfe whereby such lands or tenements may come into mortmayne he shall forfeite the same lands And by the equitie of the foresaid Statute of Westminster 2. if any Ecclesiastical person doe recouer land against another by reddition 3. Ed. 4. 14. confession or action tried yet the collusion shal be inquired of for that the same recouerie may be by collusion before had betweene the demaundant and the tenant And because that by feoffments fines recoueries and other assurances made of trust of lands to the vse of parish Churches Lands assured in Mortmaine to churches chappels Guilds c. Chappels Guildes Fraternities c. there groweth to the King and other Lords and subiects of the Realme the like losses inconueniences and is as much preiudiciall to them as doth and is where lands be aliened in mortmaine Therefore for the eschuing and auoydance of them by a Statute made an 23. H. 8. it was enacted St. 23. H. 8. 10. That all feoffments fines recoueries wills and other estates deuised or in any wise made of trust of any mannors lands tenements or hereditaments to the vse of any parish churches chappels churchwardēs Guildes fraternities or brotherhoods erected or made of deuotion or by common assent of the people without any corporation Or that the Feoffees Conisees Recouerées or other persons and their heires thereof seised shall take leuie or perceiue or cause to be taken c. the issues and profites thereof and the same to
That all recoueries to be had or prosecuted by agreement of the parties Recoueries against particular tenants by Couin to defraud him in the reuertion or by Couin against any tenants by the Curtesie of England Tenants in taile after possibilitie of issue extinct or otherwise onely for the terme of life or liues or of estates determinable vpon life or liues of any lands Tenements or hereditaments whereof the same particular Tenant is or shal be seised of any such particular estate as is aforesaid or against any other with Voucher ouer of any such particular Tenant or of any hauing or that had right or title to any such particular estate or tenancie as is aforesaid shal as against such person or persons to whom any reuersion or remainder thereof by force of any Conueyance or deuise before that time had or made shall ought or lawfully may appertaine and against their heyres and successors be vtterly voide Prouided alwaies that this Act shall not extend to any person or persons that shall by good title recouer any lands tenemēts or hereditaments without fraud or Couin by reason of any former right or title But al euery such recouerie and recoueries vpon former rights and titles shall stand and be in like force as they were before the making of this Acte And in all and euerie recouerie and recoueries to be had or prosecuted of any lands tenements or hereditaments by the assent and agreement of any person or persons to whom any reuersion or remainder thereof then shall or ought to appertaine so that the same assent and agréement doe appeare of record in any of the Kings Courts shall stand in like strength and of like effect against such person and persons that shal so assent and agree their heyres successors as they were before the making of this act 27 And for that Couin and fraud should be restrained and punished when it shall be put in practise or intended by those in reuersion to defeate their Lessees of their termes for yeares as it was by the aforesaid Statutes when it was executed by particular Tenants to the preiudice or disheritance of them in the Reuersion Couin by him in the reuersion to defeate his Lessee for yeeres Therefore by a Statute made Anno 21. H. 8. Stat. 21. H. 8. 15 Stat. 6. E. 1. 11. it was enacted That if any persons doe make leases of their lands tenements or other hereditaments by Indentures or without writing to other persons for terme of yeares if after the same Lessors their heires or assignes do cause or suffer recoueries to be had against them in the Kings or any other Lordes Court vpon fained and vntrue title by craft and Couin to put the said Termors from their Termes all such Termor shall and may falsifie for his terme only such recouerie in such wise and forme as a tenant of fréehold shall may doe by the course of the cōmon law where such tenant was neither priuie nor party to such recouerie And the same Termors their Executors assignees notwithstanding such recouerie so had shall enioy retaine and hold their said termes according to their said leases against all such recouerors their heyres and assignees And the said recouerers their heyres and assignees after such recouerie so had shal haue like remedy against the said termors their Executors and assignees by auowrie or action of debt for the rents and seruices reserued vpon the same leases being due after the same recoueries also like actions against them for waste done after the same recoueries so had in like manner and forme as the said Lessors should or might haue had if the same recoueries had neuer beene had No manner of Statute of the Staple Couin to auoide a Statute or recognisance statute marchant nor execution by Elegit shal be auoided by meanes of any such feyned recouerie but all persons hauing any lands tenements or other hereditaments in execution or being intituled to haue execution of any lands or tenements by any such meanes shal haue like remedie to auoide and falsifie the same recouerie as before is prouided for the lessee for terme of yeares 28 There haue beene many lawes and Statutes deuised from age to age to restraine and punish seueral sorts of deceits Couins collusions and frauds but most to encounter and checke fraudulent deeds cōtriued of malice or guile to defeate Stat. 50 Ed. 3. 6. 1. R. 2. 9. 2. R. 2. 3. 3. H. 7. 4. 13. El. 5. 27. El. 4. delay or hinder others of their lands leases goods cattels debts c. as it appeareth by the statute made A. 50. Ed. 3. 1. R. 2. 2. R. 2. 3. H. 7. 13. El. 27. El. But as deceit and fraud increased in this realme so new penalties and greater punishments were inuented from time to time to inflict vpon the transgressors therin And because fained couenous and fraudulent Feoffmēts gifts graunts alienations conueyances bonds sutes iudgements executions of lands and tenements goods and cattels being deuised of Couin guile to defraud creditors and others of their iust and lawful actions dets c. be not only to the let of the due course and execution of law iustice but also to the ouerthrow of all true and plaine dealing bargaining and cheuisance betweene man and man without the which no common weale or ciuill societie can bee maintained or continued Therefore by a Statute made A. 13. El. it was enacted Stat. 13. El. 5 Stat 29. El. 5. That all and euery Feoffment gift graunt bargaine alienation Fraudulent deeds to auoide other mens debts and duties and conueyaunce of lands tenements hereditaments goods cattels or of any of them or of any lease rent common or other profite or charge out of the same lands hereditaments goods c. or any of them by writing or otherwise And all and euery bond sute iudgement and execution at any time had or made sithence the beginning of Queen Elizabeths raigne or at any time hereafter to be had or made which haue beene and are deuised contriued of malice fraud couin collusion or guile to the intent c. to delay hinder or defraud creditors others of their iust lawfull actions sutes debts accompts damages penalties forfeitures hariots mortuaries or reliefes shal be taken deemed onely as against that person his heires executors successors or assignes whose actions sutes debts accoūts c. by such guileful couenous or fraudulēt deeds deuises practises as is aforesaid are shall or mought be in any wise disturbed hindered delaied or defrauded to be cléerly void of none effect any colour fayned cōsideration expressing of vse or any other matter to the cōtrary notwtstanding And al euery the parties to such fained or fraudulēt feoffment gift graunt alienation bargaine conueyance bond sute iudgement execution Parties to fraudulent deedes c. or being priuie and knowing of the same or any of them which
person so taking or contracting or agréeing to take or haue any thing for the same shall forfeit double the summe of money or value of the thing so receiued and taken or agréed to be receiued or taken And euery person by whom or for whom any money gift or reward as aforesaid shal be giuen or agréed to be paid shal be vncapable of that place or roome for that time or turne shall not be nor had nor taken to be a lawfull fellow scholler or officer of any the churches colledges halls hospitals schooles or societies or to haue such room 〈◊〉 place there But they to whom it shall appertaine at any time thereafter 〈◊〉 and may elect choose present and nominate any other person fit to be elected presented or nominated into the said roome or fellowship as if the said person by or for whom any such money gift or reward shall be giuen or agréed to bée paid were dead or had resigned and left the same And to the intent that euery person that is or may be subiect to the said penalties may take notice thereof This Stat. shall be read at euery election by the said statute it was also ordained That at euery election of fellowes schollers and officers this Act and the Statutes of the same places concerning such election shal be publikely read vpon paine that euery person in whom the default shal be shal forfeit xl l to him that will sue and to the same colledge societie c. Extortion by gathering others money 36 If any person doe leuie and receiue money of certaine other persons 27. Ass p. 15 which they ought to pay in discharge of a fiftéene due by a towne to the king and he doth not pay the same money to the king he may be indited of extortion and the matter beeing found accordingly the offendor shall be distrained to pay the same money to the people of the said towne toward their discharge of the said fiftéene 48. Ed. 3. 8. 37 If a man be amerced in a Court Baron for a trespasse done to the Lord of the Manor and the amerciament is affâ—ired in the Lords court Extortion for amerciament in a court baron this is extortion in the Lord But if the Lord doe accept the amerciament that is a sufficient satisfaction for the trespasse and a good barre in an action of trespasse brought by the Lord against the offendor 38 But though extortion and exaction be prohibited by the lawes Stat. before specified as things offensiue to the lawes and iustice of the Realm No extortion to take lawful fees yet the same law doth allow to each officer and other person to haue a reasonable consideration and satisfaction for his paines according to his countenance degrée and calling and the paines and seruice which he shall doe and imploy in the furtherance or execution of iustice 34. H. 6. 38. 8. Ed. 4. 18. as the L. Chancellor and they which write to the great seale are not to make writs without their fées and if a prisoner be discharged of his imprisomnent by the court paying his fées the Marshall of the Kings Bench the Sherife of the countie nor any Gaoler or keeper of prison ought to detaine him in prison for meat drinke or other thing which he hath bought but for his fées onely But if a man be committed to prison for suspitioÌ„ of felonie 11. H. 7. 16. and after he is acquitted thereof and discharged by the court paying his fées the Sherife or Gaoler may take of him barre-fées and this is no extortion but iustifiable for this money is not taken coÌ„trarie to the foresaid stat of anÌ„ 23. H. 6. which prohibiteth the sherife to take money for shewing ease or fauour to any person arrested Taking of barre-fees no extortion For this barre-fée is money which the court froÌ„ one age to another hath in discretion assigned the prisoner so discharged to pay to the Sherife or Gaoler for his great paines and charge for the safe keeping of the prisoners for attending vpon them and for conueying of them safely to the barre and from it to the prison If a man bee committed to prison for two seuerall felonies 26. Ass p. 47. and after he is discharged by the court paying his fées he shal pay but one fée for the Gaolers attendance was but vpon one person And if the Sherife or Gaoler take from a prisoner in his custodie the money in his purse or any garment that he hath this is no extortion but a trespasse for the recouerie whereof the prisoner may haue an Action of trespasse against the same Sherife or Gaoler and recouer the value thereof in dammages No extortion for gloues giuen vpon the allowance of pardon And if a man indited and arraigned of felonie 4. Ed. 4. 10. doth plead and shew forth the Kings pardon of the same felonie which is allowed by the court whereupon hee doth pay and giue his fées of gloues to the Iustices and other officers of the court this is no extortion 34. H. 6. 38. but an auncieÌ„t fée and lawfully due vnto them If the Iustices in an especiall Assise doe take their lawfull fées this is no extortion for they are not bound to sit vnlesse they haue them 34. H. 6. 42. 39 If a man that is attainted of trespasse doe come into the court Extortion in taking fees of him that doth appeare gratis where he was attainted and prayeth to make his fine to the King and offereth pledges for his fine if the Warden of the Fléet or other Kéeper of a prison do take any fées of him it is extortion seeing hee came in gratis and out of ward and yéelded himselfe to the court But if there be proces awarded against him for his said fine and he be taken thereby then he shall pay his fées to the warden or Kéeper c. and it is no extortion to take them for that he came in by compulsion and not willingly St. 27. H. 8. 26. 40 After that by the Stat. of anÌ„ 27. H. 8. it was enacted That the Kings countrie or dominion of Wales should be incorporatd vnited and annexed to and with the Realme of England and that all persons borne and to be borne in the said Principalitie and dominion of Wales should haue enioy and inherit all and singular fréedomes liberties rights priuiledges and laws within this Realme and al other the kings dominions as other the Kings subiects borne within the same haue enioy and inherit And that the lawes ordinances and statutes of this Realme of England for euer and none other shall bée vsed and executed in the said dominion of Wales and euery part thereof in like manner forme and order as they be in this Realme And that the said dominion of Wales was by the said Statute of 27. H. 8. and by the statute of anÌ„ 34. H. 8. diuided into xij
and the disseisée may at his choyce either haue an Assise and recouer double dammages and the defendant shal be amerced or else the K. vpon complaint shall redresse the matter If lands be graunted by the Kings Patent without any title sound by Enquest St. 1. H. 4. 8. or where the Kings entrie is not giuen by the law and if any be put out or disseised of his fréehold thereby this is an oppression And the partie put out shal haue a speciall Assise against the kings Patentée and recouer treble dammages Oppression by approuement of common 2 If the Lord of a Mannor wherein he hath certaine fréehold tenants and certaine neighbours do approue some part of the wasts woods or pastures of the same Mannor not leauing to his said tenants and neighbours sufficient common of pasture vnto their tenements or not sufficient and conuenient ingresse and regresse to the same this is an oppression of the same tenants and a disseisin of their common And the sayd tenants and neighbours or any of them may by force of the Statutes of Merton and West 2. St. 20. H. 3. 4 St. 13. E. 1. 46. bring an Assise of Common of pasture against the Lord who doth so approue and oppresse And if it be found by the Iurie that their ingresse and regresse were any thing hindered by the deforceors or that they had not sufficient pasture then they shall recouer their seisin by the view of the Iurors so that by their discretion and othe they shall haue sufficient pasture ingresse and regresse and the disseisors shall be amerced and render dammages which dammages by force of the statute of Anno 3. Ed. 6. St. 3. E. 6. 3. shall be trebled by the iudgement of the Court where such Assise and iudgement shall be had Oppression by surcharge of common And so it is if the Lord of a Manor doth surcharge the common with so many cattell Fitz. Admes 11. Common 29. as that his fréeholders or neighbours cannot haue sufficient common for their cattell as they had woont to haue or as they ought to haue belonging to their tenements this is an oppression and disseisin of their common and any of them may bring an Assise of Common of pasture against the said Lord and recouer his common and his dammages Inclosure of common by cause of vicinage is no oppression But if there be two Lords of two seuerall Mannors which haue two wasts adioyning parcell of their mannors Co. li. 4. 38. lying together without inclosure or seperation and yet the bounds of each mannor is well knowne by certaine méers and marks in which wasts the tenants of the one mannor and of the other haue reciprocally had and vsed common by cause of vicinage 13. H. 7. 14 M. 14 Eliz. Dyer 316. In this case one of those Lords may inclose against the other by that meanes vtterly take away his common by cause of vicinage from him though it hath béene otherwise vsed time out of the remembrance of man And this common per cause de vicinage is rather an excuse of a Trespasse when the cattell of the tenant of one Mannor do stray into the wasts of the other Mannor than any certaine inheritance for the tenants of one Mannor may not put their cattell into the wast of the other Mannor but they may come thither onely by escape and this inclosure is onely to preuent the escape of the cattell which is a lawfull act and no oppression For in the case aforesaid where the wasts of both the Mannors be adioyning together and that the one of them hath common with the other by cause of vicinage Co. li. 7. 5. and that the one village hath an hundred acres of common and the other but fiftie acres of common Commoners shall charge common according to the quantity thereof in this case the inhabitants of the village which hath but fiftie acres of common can put no more cattell into their sayd common of fiftie acres than it will maintaine without hauing respect to the common in the said hundred acres for if they do it is an oppression and wrong nece conuerso for the originall cause of this common by cause of vicinage was not for profit but for preuenting of suits in a Champion countrey in respect of reciprocall escapes from one towne to another 3 It appeareth by the preamble of the statute of Marlebridge that they who tooke distresses of their tenants or neighbours for rents supposed to bée due to them or for any trespasses done to them and after did driue the same distresses forth of the countie where they were taken to be impownded in another countie were accounted to do it to oppresse them whose cattell they so did distrain and impownd and the same was also adiudged an act done against the peace whereupon for the eschewing of such oppressions by the same statute and also by the statute of West 1. St. 25. H. 3. 4 St. 3. E. 1. 16. it was ordained Oppression by distresses That no man shall cause a distresse to be driuen forth of the Countie wherein it was taken And for the auoiding of the like oppressions vexations and troubles by a statute made Anno 1. St. 1. 2. P. M. 12. 2. P. M. it was enacted That whosoeuer shall driue any distresse out of the Hundred Rape Wapentake or Lath where it was taken except it be to a pownd ouert within the same shire being not aboue thrée miles distant from the place where it is taken or shall impownd in seuerall places goods distrained for any cause at one time whereby the owner shall be constrained to sue seuerall Repleuies for the deliuerie of the same distresses shall forfeit to the partie grieued for euerie such offence fiue pounds and treble dammages And whosoeuer doth take for kéeping in pownd pondage Pondage money or the impownding of a whole distresse aboue iiij d. or doth take so much where lesse hath vsually béen taken shall forfeit to the partie grieued fiue pounds and so much as hée taketh ouer the said iiij pence And because the law hath deuised that one neighbour may distraine the goods of another for his debt duetie or dammages sustained and that the same distresse shall be reasonable according to the quantitie of the sayd supposed debt or dammages and that then the same distresse shall bée put in a pownd ouert sub custodia legis vntill it bée decided whether the same was taken vpon iust cause or not and not to the end that one neighbour should by distraining vniustly oppresse another or demaund of him that which is not due or put him to further charge or trouble than the necessitie of that cause for the recouerie of his owne debt or damages required therefore by the before mentioned statute of Marlebridge it was further established That if one neighbour take a distresse of another whereby he hath receiued
is an oppression and for the redresse thereof the same tenant may pursue against his lord a Writ of Ne iniuste vexes grounded vpon a braunch of the statute of Magna Charta St. 9. H. 3. 10 thereby commaunding the Lord that he shall not oppresse nor vniustly vexe his tenant for more rent or seruices then hée ought to pay or doe 12. E. 4. 7. 28. Ass p. 33 5. Ed. 4. 82. Or otherwise the tenant may auoid this surplusage of rent in an Assise Writ of Rescous or Cessauit brought against him by his lord but in a Repleuin he cannot auoid his lord of this rent newly incroched séeing the same lord hath had seisin thereof and so it is if the lord of a Manor 40. Ed. 3. 44. 49. Ed. 3. 22. 39. E. 3. 6. which is auncient demesne will encroch vpon his tenants and distraine them or any of them that hold their lands by Charter fréely to doe other seruices or customes to the same lord then they ought to doe or that their auncestors were accustomed to do this is an oppression of the same tenants and for the redresse thereof all the tenants of the said auncient demesne Manor may haue against their said lord the kings writ of Monstrauerunt directed to the said lord commaunding him thereby that hée shall not require nor cause to bée required of his said tenants more seruices or customes then they ought to doe Fitz. Na. Br. 14. or had wont to doe And if after the said writ directed he will distraine the goods of them or any of them againe to doe more seruices then they ought to doe Then the same tenants or such or so many of them as bee so distrained may procure an attachment against their said lord Fitz. Na. Br. 15. returnable in the K. Bench or common place for this oppression and contempt wherin euery of the same tenants shall recouer his dammages seuerally according to his losse 8 Euery excessiue amerciament which one person doth take of another Oppression by excessiue amerciament is also to be accounted an oppression of the party so amerced for by the Statutes of Magna Charta West 1. St. 9. H. 3. 14 3. Ed. 1 6. it is ordained That no Citie Borough Towne or man shall be amerced but for a reasonable cause and according to the quantitie of his offence and euery fréeman shall bée amerced sauing his fréehold a marchant sauing his marchandize and euery other mans villaine besides the kings sauing his villaine tenure and the same amerciaments shall bee assessed by the oath of honest and lawfull men of the same vicenage So that if one person doe take a much greater amerciament of another then the quantitie of his offence doth require in a Court Baron or other Court which is not of record or doe take that amerciament of his owne authoritie without being before assessed by others vpon their oathes and so maketh himselfe iudge in his owne cause this is an oppression of the party amerced for the redresse whereof the party grieued may procure to be directed to the lord of the said Manor or to his Baylife a Writ of Moderata misericordia which was founded vpon the said stat of Magna Charta commaunding them thereby Fitz. Na. Br. 75. that they shall take a moderat and indifferent amerciament of the same person according to the quantity of his offence And if the lord or his baylife will not then cease to distraine for the said excessiue amerciament the partie so oppressed may haue against the offendor an attachment directed to the Shirife of that Countie where the same Distresse is taken to attach him to appeare in the kings Court and to answere his said offence Oppression by committing of wast 9 The Wast and Estrepement which one person hauing a particular estate in another persons land doth make or commit to the disheritance of him in the reuersion or remainder of the same land without his consent may also be accounted an oppression of him in whom the said inheritance is for when one person doth lease or otherwise conuey his land to another for the terme of life liues or yeares he doth in effect but lend the same land to the sayd particular tenant for the terme betwéene them agréed vpon expecting to haue the same againe at the end of the terme in as good plight and in such sort as it was when he first did deliuer and lend it And therefore if the particular tenant during the continuance of his estate doe commit any wast in the same land he cannot deliuer it againe at the end of his terme in such plight and sort as at the first he did receiue and borrow it but by the wast the perpetuall profit of the land is impaired and therefore of so much in value hée in the reuersion or remainder is disherited And for the preuention thereof by the statute of Marlebridge it was ordained St. 52. H. 3. 24. That Farmors during their termes shall not make wast sale or exile of houses woods or men nor of any thing belonging to the Tenements which they haue in farme without they haue speciall graunt in writing making mention of a couenant that they may doe it And to the intent that condigne punishment might bée prouided and inflicted vpon such as should be transgressors and oppressors in these cases of Wast by the statute of Gloucester it was enacted St. 6. Ed. 1. 5 That a man shall haue an action of Wast in the Chauncerie against him which is tenant by the courtesie of England The tenants forf which cōmitteth wast or otherwise tenant for terme of life or for terme of yeares or against a woman which holdeth in Dower and he which shall bée attainted of Wast shall forfeit the thing wasted and besides shall pay treble so much as the Wast shall be taxed and after by the statute of Westminster the second the same was in a sort confirmed St. 13. E. 1. 14 and the said action of Wast was againe giuen against the foresaid tenants by the courtesie in dower for terme of life or yeares and also ordained to extend against Gardens And by the same statute the proces to be vsed in the said action of Wast was assigned to be Summons Attachment and Distresse and if the party defendant doe not appeare at the distresse then a writ shall be awarded to the Shirife to inquire of the wast by the oathes of twelue men And because diuers persons did let their lands to others sometime for terme of life or anothers life and sometime for terme of yeares and after the said tenants did graunt their estates which they had in the same Lands and Tenements to others to the intent that they in the reuersion viz. their lessors their heires or assignées should not take knowledge of their names and yet the first lessees did continually occupie the said Lands and tooke the profites to
adiudged Felonie or Trespasse according to the law of the land in auncient time vsed and according as the case doth require And if in such case or any like the Iustices haue adiudged it Treason before this time and there by the offendors lands and tenements haue come into the kings hands as forfeit the chiefe Lords of the fée shal haue their Escheats of those tenements which be holden of them whether the same tenements be in the hands of the King or of any other by gift or in other manner sauing to our Lord the King the yeare and wast and the forfeiture of the chattels which doe belong vnto him in the cases aforesaid And in such cases writs of Scire facias shal be awarded against the tenants of the land without any other originall and without allowing the kings protection in the same suit And touching those lands which be in the kings hands there shal be writs granted to the Sherifes of the Counties where the lands be to deliuer them out of the kings hands without delay 2 By which statute it doth appeare that there be two sorts of Treason by the auncient common lawes of this Realme viz. High Treason and Petit Treason High treason High Treason when any of the grieuous offences aforesaid be done or attempted to the vniuersall and generall Maiestie of gouernment that is to say to the bodie of the whole Commonwealth or to the King the head ruler and directer thereof Petit treason in his person wife issues or authoritie Petit Treason is when the bloudie and grieuous offence of wilfull murder is done and committed by an inferiour person and one in subiection to another that hath a dominion or a kind of Maiestie in gouernmēt ouer the same partie And though sithence the before mentioned Statute of 25. Ed. 3. diuers other offences haue béene made Treason by the Statutes of 21. R. 2. 3. H. 5. 4. H. 5. 8. H. 6. 14. H. 6. 20. H. 6. 4. H. 7. 22. H. 8. 26. H. 8. 27. H. 8. 28. H. 8. 31. H. 8. 32. H. 8. 33. H. 8. 35. H. 8. 1. Ed. 6. yet euerie of the succéeding ages were soone wearie of the sayd new Treasons and thought that the grieuous paines and most hainous punishments of them were too heauy and vnsupportable for the Subiects of this Realme to endure As the Lords and Commons in the Parliament holden Anno 4. St. 4. H. 4. 10 H. 4. 10. did complaine that diuers paines were ordained to be Treason by the statute of 21. R. 2. insomuch that no man did know how he ought to behaue himselfe to doe to speake or say for doubt of such paines and thereupon it was enacted That in no time to come any treason shall bée adiudged otherwise than was ordained by the Statute of 25. Ed. 3. And long time after the makers of the statute of Anno 1. Mar. considering and rehearsing that the state of euerie King Ruler and Gouernour of any Realme Dominion or Comminaltie consisteth more assured by the loue and fauour of the subiects towards their Gouernour than in the dread and feare of lawes made with rigorous paynes and extreame punishment and that lawes iustly made for the preseruation of the Commonwealth without extreame punishment or great penaltie are more often obeyed and kept than lawes and statutes made with great and extreame punishments and in speciall such lawes and statutes so made whereby not only the ignorant vnlearned and rude people but also learned and expert persons minding honestie are often trapped and snared yea many times for words only without any other fact or déed done or perpetrated and therefore to the intent that the seueritie of such like extreame dangerous and perillous laws might be abolished A repeale of former treasons and adnulled St. 1. M. by the said statute of Anno 1. M. Parl. 1. it was ordained That from thenceforth none act déed or offence being by act of Parliament or stat made Treason Petit Treason or Misprisiō of Treasō by words writing ciphering déeds or otherwise whatsoeuer shal be taken had déemed or adiudged to bee High treason Petit treason or Misprisiō of treason but only such as be declared expressed to be high Treason Petit treason or Misprision of Treason in or by the stat of 25. E. 3. concerning Treason or the declarations of Treasons and none other Nor that any paines of death penalty or forfeiture in any wise ensue or be to any offendor or offendors for the doing or committing of any Treason Petit Treason or Misprision of Treason other than such as bée in the said stat of 25. E. 3. ordained and prouided By force of which stat made Anno 1. M. the subiects of this Realme were eased and vnburdened of al acts déeds and offences made or declared to be treason by the space of two hundred and more years before Or as it may more aptly be said of all offences made Treason by any stat or act of parliament whatsoeuer But sithence the stat of repeale made Anno 1. M. there haue béen diuers other offences made or declared to be treason by the stat of An. 1. M. 6. 1. 2. P. M. 11. 5. El. 11. 18. Offences made treason by Statutes El. 1. 5. El. 1. 13. El. 2. 23. El. 1. 27. El. 2. 3. Iac. 4. whereof the first foure were but as an addition augmentation enlargement or exposition of the before specified Treasons ordained by the common law or declared by the foresaid stat of 25. E. 3. All which said last mentioned Treasons I will set downe and expresse verbatim after I haue somewhat more particularly expressed how the Sages and Iudges of this Realme haue construed and expounded seueral branches of the said statute of explanation made Anno 25. Ed. 3. 3 The foresaid statute of 25. Ed. 3. doth confirme it to be high treason for any person to compasse or imagine the death of our Soueraigne Lord the K. the Quéen c. by which words it doth approue what a great regard and reuerend respect the common law hath alwayes had to the person of the K. which it hath endeuored religiously carefully to preserue as a thing consecrated by almightie God and by him ordained to be the head health wealth of the kingdome and therefore it hath ingrafted a déepe and setled feare in the hearts of all sorts of subiects to offer violence or force vnto it vnder the paine of high treason Leges Aluredi cap. 4. Co. li. 4. 124 in somuch as if he that is non compos mentis do kil or attempt to kill the K. it shal be adiudged in him high treason though if he do cōmit petit treason homicide or larceny it shall not be imputed vnto him as felonie for that hee knew not what he did neither had he malice prepenced nor a felonious intent And this law doth not only restrain al persons from laying
Striking in Westminster Hall 27 And the same Law is Fitz. Cor. 280. M. 2. 3. P. M. Dy. 188. if one strike another in Westminster Hall during the time that the Kings Courts be sitting there and be indicted thereof this is misprision of Treason and an indignitie offered to the Magistrates and place of iustice Therefore in this case the offender shall haue iudgement to haue his right hand cut off to loose his lands and goods and to be perpetually imprisoned Reâ—scuing a prisoner arrested by a Iudge 28 If one of the Kings Iustices assigned M. 22. Ed. 3. 13. doe arrest any person which hath made a fray before him and a stranger will rescue the prisoner whereby he doth escape this is misprision of Treason and in this case as well the prisoner as he that made the rescous shall forfeit to the King his landes and goods and be imprisoned during their liues Because the attachment of such a Iustice is the Kings owne attachment in the construction of Lawe 29 Because striking in the Kings pallace or where he shall remaine in person is a kinde of disgrace offered vnto or contempt had of the maiestie of the king who is the head of the common wealth and the chiefe preseruer of peace therein and therefore it is to be accounted a great Misprision and worthy of seuere punishment wherefore for the preuention thereof Shedding of blood within the kings palace by a Statute made Anno 33. St. 33. H. 8. 12. H. 8. 12. it was established That if any person or persons shall malitiously strike any other person whereby blood shall be shedde in any of the Kings houses or Palaces or any other house wherein the king his heires or successors shall bee at that time abiding in his royall person viz. within any edifices courts places gardens orchards or houses within the Porters ward of any of the houses aboue rehearsed or within any Gardens priuie walkes orchards tilt-yards wood-yards tennice-plaies cocke-fights bowling alleyes néere adioyning to the said houses and béeing part of the same or within two hundred foot of the Standard of any outward gate or gates of any of the said houses commonly vsed for passage from any of the houses c. and shal be thereof indicted arraigned and attainted according to the forme of the said Statute he so offending shall haue his right hand cut off bee imprisoned during his life and make fine to the King at his pleasure But this Act and the paines and forfeitures before rehearsed shall not extend to any Noble man nor other person that shall strike his seruant within the said Palaces or Houses or the limits of the same with his hand or fist or any small staffe or sticke for correction for any offence committed Nor to any of the Kings officers that in execution of his office shall strike any person with his hand fist or small staffe sticke or tipstaffe Nor to any other person that in doing seruice at any triumph or any other time of seruice by the Kings or any of his Councel or other his head officers commandement shal for the execution of his said seruice strike any person with his hand fist smal staffe or stick or any tipstaffe within the same palace house c. although by reason of the same stroke or strokes there happen to bée any blood-shed of such person as shal be so stricken except the person so stricken die of the same stroke within one yeare next after And so it is to be noted by the foresaid Statute of 33. H. 8. and the foure cases next precedent that striking in the Kings Palace or House where himselfe doth make his abode is not so penall as striking or drawing a weapon to strike is where he is but represented by others in time and place of Iustice for the law doth inflict a more seuere punishment vpon him who striketh or draweth his weapon to strike in place time of execution of Iustice than it doth to him who offereth the like violence in the house and at the time where the kings owne person is remaining In which case the offendor receiueth no punishment at all for striking or drawing of his weapons to strike vnlesse blood be shed thereby Which lawes doe procéed of the great care and reuerend respect that is had of Iustice and of peace ensuing thereof 30 For as much as some doubts and questions were mooued that certaine kinds of Treasons Misprisions and concealements of Treasons committed out of this Realme could not by the common lawes of this Realme be enquired of heard and determined within this Realme of England for a plaine declaration whereof St. 35. H. 8. 2 26. H. 8. 13. 5. Ed. 6. 11. by a Statute made Anno 35. H. 8. it was enacted That all manner of offences béeing alreadie made or declared or hereafter to bee made or declared to be Treasons Misprisions of Treasons or concealements of Treasons and done perpetrated or committed by any person or persons out of this Realme of England shal be enquired of heard and determined before the Kings Iustices of his Bench for pleas to be holden before himselfe Trial of treasons committed out of the Realme by good and lawfull men of the same shire where the said Bench shall sit and bée kept or else before such Commissioners and in such shire of the Realme as shall be assigned by the Kings Commission and by good and lawfull men of the same Shire in like manner and forme to all intents as if such treasons c. had béene committed in the same shire where they shall be so inquired of heard and determined as is aforesaid And if any Péere of this Realme shall be indicted of any such Treasons c. then he shall haue his triall by his Péeres c. Which foresaid Statute of Anno 35. H. 8. remaineth in force notwithstanding the Statute of Anno 1. 2. P. M. 10. By which it is ordered h. 13. El. Dyer 298. That all Trials had awarded or made for any Treason shall bee had and vsed onely according to the course of the common lawes of this Realme and not otherwise Outlawrie of offendors in Treason beeing beyond Sea 31 By a branch of a Statute made Anno 26. H. 8. it was ordained That all Proces of Outlawrie to be made within this Realme against any offendors in Treason being resiant or inhabiting out of this Realme or beyond the Sea at the time of the Outlawrie pronounced shal be as good and effectuall in the law to all intents as if any such offendors had béene resiant within this Realme at the time of such Proces awarded Outlawrie pronounced And after by a Statute made Anno 5. E. 6. it was conditioned and prouided St. 5. E. 6. 11. That if the partie so outlawed shall within one yeare after the said Outlawrie pronounced or iudgement giuen thereupon yéeld himselfe to the chiefe Iustice
of England for the time beeing and offer to trauerse the said indictment or Appel whereupon the said Outlawrie shal be pronounced then he shal be receiued to the said trauerse being thereupon found not guiltie by verdict of xij men he shal be cleerely discharged of the said Outlawrie and of all penalties and forfeitures by reason of the same as though no such Outlawrie had bin made And it is to be noted h. 12. El. Dyer 287. that the foresaid two Statutes doe extend to offendors in any manner of Treasons by the Common law or Statute and not to those onely which were declared to be Treasons by the Statute of 25. Edw. 3. 32 For the spéedie triall and punishment of such persons as shall commit any manner of Treasons within the Principalitie of Wales and the Marches of the same or elsewhere within the Kings dominions where his originall Writs in the Chauncerie of England commonly runne not by a Statute made Anno 32. H. 8. it was enacted That all such Treasons and Misprisions of Treasons as is aforesaid Triall of treasons committed in wales shall be presented St. 32. H. 8. 4. and tried by the oathes of twelue men inhabiting within any such Shires and before such commissioners as the King from time to time in such cases shall assigne and appoint by his Commission or Commissions of Oyer Determiner in like manner forme as if such Treasons or misprisions of treasons had bin done and committed within such of the said Shires into the which the said Commissions of Oyer and Determiner shall bée directed as is aforesaid And all Presentments Trials Processes Iudgements Executions and forfeitures hereafter to be had made or done by vertue of such Commissions shal be good and effectuall in the law to all purposes Any graunt custome or vsage to the cōtrarie notwithstanding c. After that by the Statute made an̄ 1. 2. P. M. it was enacted That all trials hereafter to be had St. 1. 2. P. M. 10. awarded or made for any Treason shal be had and vsed onely according to the due Order and Course of the common law of this Realme not otherwise Quaere whether this Statute of 1. 2. P. M. doth repell or take away the force of the before rehearsed Statute of 32. H. 8. St. 33. H. 8. 20. 33 By a statute made an̄ 33. H. 8. it was established The force of attainder of treason by the common law That if any person or persons shal be attainted of high Treason by the course of the common laws or statutes of this Realme in euery such case euery such attainder by the cōmon law shal be of as good strēgth value force effect as if it had bin done by authoritie of Parliament And the king his heires and successors shall haue as much aduantage by such attainder as well of vses rights entries conditions and possessions reuersions remainders and all other things as if it had béene done and declared by authoritie of Parliament and shal be deemed and adiudged in actuall and reall possession of the lands tenements hereditaments vses goods chattels and all other things of the offendors so attainted which his Highnesse ought lawfully to haue and which they so béeing attainted ought or might lawfully loose and forfeit if the attainder had béene done by the authoritie of Parliament without any office or inquisition to be found of the same Any Law Statute c. notwithstanding Sauing to all and euery perfect and persons and bodies politique and their heires assignes and successors and euery of them other than such person and persons which shall be attainted of high Treason and their heires and assignes and euery of them and all and euery other person and persons claiming by them or any of them or to the vses of any of them after the said Treasons committed all such right title vse possession entrie reuersions remainders interests conditions fees offices rents annuities commons leases and all other commodities profits and hereditaments whatsoeuer they or any of them should might or ought to haue had if this Act had neuer bin made 34 Because through corruption or negligent kéeping the Records of attainders of Treasons happen to be many times impaired blemished or otherwise to be defectiue St. 29. El. 2. therefore by a Statute made an̄ 29. El. it was ordained That no Record of attainder that now is of any person or persons No record of attainder shall be reuersed when the offendor is executed of or for any high Treason where the partie so attainted is or hath béene executed for the same Treason shall by the heire or heires of any such person or by any other whatsoeuer clayming in by from or vnder any such heire or heirs be in any wise hereafter reuersed vndone auoyded or impeached by any plea or for any error whatsoeuer But this Act shall not extend to any Record of attainder of or for any treason vpon which any writ of Error is now depending or which Record is already reuersed repealed or vndone by or for any error matter plea or cause whatsoeuer but the same shall be and remaine as vnto and against that partie at whose suit the same writ of Error is depending or at whose pursuit the same Record hath bin reuersed repealed or vndone his their heires and assignes onely as if this Act had neuer beene had or made Any thing in this Act c. M. 33. H. 8. Dyer 50. 35 If an offence be murder or other felonie by the common lawe Felony made treason by Statute and after the same offence shal be made treason by a Statute Then it is not punishable as murder and felonie but as Treason And no appeale will lie thereof and the Kings pardon of all Treasons will discharge the offendor therein An English traitor subiect to another prince 36 If an English man borne beeing indicted of high Treason P. 13. El. Dyer 300. will vpon his arraignment plead that he will not answer to the said indictment for that he is a subiect and seruant to a forraine Prince and not subiect to the King of England in this case the Court will record a Nihil dicit and he shall haue such iudgement as is vsed in cases of Attainder of Treason An alien borne committeth treason 37 If an alien borne doe commit high Treason in England in the time of peace betwéen England and that Nation where the same alien was borne P. 3. 4. P. M. Dyer 140. H. 33. H. 6. 1 he shal be indicted and arraigned of high treason and shall haue iudgement according to his desert But if it were in the time of warre betwéene England and that nation where the said alien was borne then the alien shall be ransomed and not arraigned Ioyning the kings armes with his owne 38 An Earle of this Realme was attainted of high treason
persons by him or them assembled shal be free discharged and vnpunished as well against the King as against all and euery other person and persons of for or concerning such killing maiheming hurting c. for it is homicide by iustice done and committed by persons lawfully authorised vpon such riotous and rebellious persons which after Proclamation made will not depart and seuer themselues asunder and submit and yeeld themselues obedient to the law of the Realme S. Riots 37. 5 As any man may iustifie the killing of another before arrest Killing him that is carrying to the Gaole if he wil not yeeld so may he doe after arrest if there be any ineuitable necessitie therein as if an offendor be arrested for felony 22. Ass p. 55 Fitz. Cor. 288. and when he is in leading towards the Gaole he breaketh from those that doe conduct him and flieth away and his conductors doe pursue him so that they cannot apprehend and take him againe without killing of him In this case if they doe kill him this is homicide by iustice and iustifiable for that the offendors would not yeeld to the triall iustice of the law But if he which killed the offendor procured the matter which is iustifiable for the cause aforesaid to be found before himselfe in respect of some iurisdiction which he hath to enquire of felonies Fi. Cor. 328 he shall not bée discharged vpon such an indictment found vntill he be arraigned thereof and the matter also found by verdict because he himselfe was Iudge But the law is otherwise if it were found before other commissioners 6 As a man may kill an offendor before arrest Killing a prisoner attempting to escape or after arrest if he will not yéeld so in some case a man may kil him that is vnder arrest in prison As a Gaoler came in the night with a Lanthorne in his hand to see his prisoners who before his comming had broken their yrons 22. Ass p 55 and stood all ready to kil him and did beat and euill intreat him and he hauing a hatchet in his hand therewith slew two of them and escaped from the residue This was adiudged to be well done and to deserue no punishment for this was by the Gaoler homicide done by iustice to kill them who attempted to kill him and who indeauoured to escape the triall and iustice of the law St. 24. H. 8. 5 7 It appeareth by the Statute of an̄ 24. H. 8. 5. Killing him that attempteth robbery or burglary That it is homicide iustifiable if a man doe kill an offendor which attempteth feloniously to robbe or murder him 22. Ass p. 55 26. As p. 23 32. Co. l. 5. f. 91 Fi. Cor. 303 305. in or néere any high way cart way horse way or foot way or in his mansion house or to kill him which attempteth burglarie to breake his dwelling house in the night and that the same shal be by verdict so found and tried for he shall neither loose lands goods or cattels for the death of any such euill disposed person but shal be fully discharged as if he were acquit thereof 8 To the intent that Trespassors in forrests chases parkes and warrens Killing of an offendor in a Parke warren or forrest may more charily eschew and feare to enter and trespasse in the same by a Statute made an̄ 21. Stat. 11. E. 1. E. 1. it was ordained That if any forester parke-kéeper or warreiner shall find any offendors within his Bailiwicke there wandring and doing hurt which after Huy Crie leuied to kéep the peace and obey the law will not yéeld themselues to the Forrester c. but will flie defend themselues by violence Then though the Forresters Park-kéepers and Warreiners any other comming in their companie to kéep the Kings peace endeauouring to arrest such offendors doe kil any of the same offendors he shal neither suffer death nor sustaine any other trouble or punishment therefore But if any of the said Forresters Parke-keepers or Warriners or any other by reason of contention despite or hatred will lay to any mans charge passing through his Bailiwicke that hee came thither to doe hurt whereas hee did not neither was found wandring or offending and so kill him and thereof be conuicted he shal be punished for his death as he ought to be for the death of an other being in the Kings peace And by this meanes the Forrester doth commit homicide by iustice vpon the offendor because he will not submit himselfe and yeeld to be iustified by the law 9 If the king haue an auncient Chace whereof the Lieutenants M. 15. 16 El. Dyer 327. or Kéepers haue vsed time out of the remēbrance of man as well by night as by day to hunt in the Manor of Dale adioyning to the said Chace such deare as do strate out of the same Chace into the said Manor as in the purlewe of the said chace but yet diuided from the same with hedge and ditch And after the same Manor of Dale doth come vnto the Kings hands and the King doth grant the same Manor to another and his heires and further doth grant vnto the same person frée Warreine in all his demesne lands of the said Manor Vnity of possession in a chace and a manor adioyning hauing free warrein which frée Warreine hath bin before confirmed by diuers auncient Charters with these words viz. Ita quod nullus intret in Warrennam illam ad fugandum sine licentia voluntate of the grauntée of the said Manor In this case notwithstanding the vnitie of the possession of the Chace and the Manor of D. in the king and notwithstanding the Kings grant of the manor and the confirmation of the warreine with the generall words of the Prohibition aforesaid which doe onely extend to the Subiect the kings libertie of the purlewe doth remain vnextinguished And therefore if one of the Kings Kéepers of the said Chace shall come into the said Manor of D. being purliew to fetch in his straied déere it is not lawfull for the Lord of the said manor of D. or for any of his seruants to kill him after huy and crie made to kéep the peace and obey the law and if he doe it is not iustifiable by the foresaid Statute of 21. Ed. 1. for he cannot commit homicide by iustice nor iustifie the killing of him in his Warreine who hath in a sort and to some purpose interest to come into the said ground to fetch forth his straied deere One killing another in combat 10 If in Appell of murder burglarie or other felonie the defendant doe 37 H. 6. 21 plead not guiltie ready to defend it by his body and the Appellant and Appellée doe ioyne in the combat and one of them doe kill another in battell This is Homicide by iustice and not punishable for as the law of the Realme doth allow
drewe his knife to kill him and the defendant lying vpon the ground drew his knife and the assailant was so hastie to kill the defendant that he did fall vpon the defendāts knife and so was slaine In this case the defendant was not adiudged guiltie of the assailants death neither did he forfeit his goods for the assailant in a maner killed himselfe But if one man doe strike another and the defendant doth flie to a straite Fi. Cor. 286 287. and there béeing and perceiuing that the assailant would kill him holdeth a pitchforke betwéene the assailant and him and the assailant is so fierce that he runneth vpon the pitchforke and is slaine In this case the defendant shal be forced to purchase his pardon and shal forfeit his goods for here he did not lie vpon the ground but stood vpon his féet and so might haue made some other defence for his safety that the other in the case aforesaid lying vpon the ground could not doe Killing of a man in his owne defence found by verdict 16 When a man is indicted and arraigned of murder or manslaughter 43. Ass p. 31 26. H. 8. 11. it is not a sufficient verdict for the Iurie to say that the prisoner killed the dead man in his owne defence but they must shew specially how And though it be specially found vpon the indictment yet the prisoner shall not bee discharged vntill he hath purchased his Charter of pardon for that it is a confession by implication of the indictment Or otherwise he shall wholly estrange himselfe from the fact and plead not guiltie And this is done to the intent to induce a forfeiture of his goods which be forfeit for the said offence for the better corroboration and establishment whereof the Statute of Anno 6. E. 1. St. 6. E. 1. 9 made at Gloucester was ordained by which it is enacted That no writ shal be awarded out of the Chauncerie touching the death of a man to enquire if a man killed another by misaduenture or in his own defence or in other manner without felonie but the prisoner shall remaine in the Gaole vntill the comming of the Iustices in Eire or assigned to deliuer the Gaole and thē he shal put himselfe vpon the countrie before them of good and euill And if it be found by the countrey that he did it in his owne defence or by misaduenture the Iustices shal giue intelligence thereof to the King the king shall giue him pardon if he please And so note that thogh by this Stat. the life of a man is meant to be pardoned Why the goods shal be forfeited who doth kill another by misfortune 21. E. 3. 17 or in his own defence for the which by the common law he should haue bin hanged yet his goods do remain forfeit to the K. as they were at the common law Et ipse in misericordia dn̄i regis 17 Whereas the foresaid Statute of Anno 6. Ed. 1. hath ordained The prisoner indited must put himselfe vpon the countrey That the prisoner shall put himselfe vpon the Enquest of good euill that is to be intended when he is indited of murder or homicide not where in the inditement the speciall matter is found for to such an indictment of murder or homicide 4. H. 7. 2. Kel fol. 53. 26. H. 8. 5. he must plead not guiltie because it is no plea to plead the special matter viz. that he killed the dead man in his owne defence for then it should be as a iustification of the offence whereas this kind of homicide is in no manner iustifiable wherefore he must plead not guiltie and then the special matter being found by verdict shall giue him aduantage 18 He that is in this manner charged for the killing of a man in his owne defence shal not be discharged therof vntil he hath obtained the Kings pardō How he shall be discharged who killeth a man in his own defence or be acquit thereof and then his discharge shal be in this manner viz. if he desire to purchase his pardon he shall first be let to mainprise then shall sue to haue the Record certified by the Iustices before whom he was arraigned to the Chauncellor of England Fi. Cor. 116 361. Fi. N. B. 246. who shal make him a charter of pardō without speaking to the king for the giuing of intelligence to the King wherof the foresaid Statute of Gloucester maketh mentiō is intended to certifie him in the Chancerie for that in law the King is alwaies said to be present in the Chancery to giue eare to euery of his Subiects petitions 19 Homicide by misaduenture is when any person without any euil intent doth a thing that is lawfull or which is not prohibited by the law Homicide by misaduenture yet another is slaine or commeth to his death thereby as if a man casteth a stone at a bird or a beast another man or woman passing by the way is stricken thereby dieth Or if one man be in felling of a trée and the same trée What is homicide by misaduenture or some arme or bough thereof falleth vpon another person killeth him Or if one do shoote an arrow at a Butte or other marke and another passing that way is killed therwith Or if one man do let a stone or a péece of timber fal frō a house or out of a window and another passing that way is killed by it this manner of killing is homicide by misaduenture Fi. Cor. 302 354. St. 6. Ed. 1. 9. for the which he that doth kill shal haue his pardon of course as it doth appeare by the before rehearsed stat of Gloucester and also he shall forfeit his good as in the foresaid case of killing of a man in his owne defence But in this case it is to be considered whether he that committed this homicide by Misaduenture was then busied in a thing that was lawfull or vnlawfull for if he were doing of a lawfull act as if the Schoolemaster do in reasonable manner beat his Scholler for correction onely or the master his seruant and after the Scholler or Seruant dieth Or two men doe by consent wrestle one with another Kel fol. 108 136. and one giueth the other a fal and hurteth him whereby he dieth Or one doth play with the other at hand sword by consent and one of them giueth the other a blowe or thrust whereby he dieth or if a mā do cast wood stone or other thing from a cart a house or from a window houel or ricke another is oppressed therewith and dieth Or if a man béeing in due and conuenient time doing any thing that might bréed danger to passengers thereby doe crie out with so loud and audible voice to giue warning therof that any other which trauelleth that way may heare and flie the perill and yet one carelesse and nrt respectiue of
life time for murder of another person And if this man had béene outlawed or otherwise attainted of Felonie in his life time this lease should haue béene forfeited to the King and the wife should haue had no part thereof P. 16. E. 4. 7 P. 9. Eliz. Dyer 262. 45 If one which is felo de se hath a debt due to him vpon a contract No forfeiture of a debt vpon a simple contract and not by specialtie hée shall not forfeit the debt to the King amongst his other goods and chattels for that the sayd debtor shall bée rebutted of his law against the King Pl. Com. 260. 262. 46 If a villeine doe giue himselfe a deadly wound A villeine felo de se and then his Lord seiseth his goods and after the Lord of the same villeine doth seise his goods and then this villeine doth dye within a yeare and a day after the wound giuen and so becommeth felo de se and after the whole matter is found before the Coroner those goods of the villeines shal bée forfeit to the King and the King shall haue them out of the Lords possession for the forfeiture shall haue relation to the wound which the villeine gaue himselfe and that was before the Lords seisure of his goods For if a man doth giue himselfe a deadly wound and dyeth thereof within a yere and a day after all the goods cattels and debts which hee had at the time of the blow giuen or at any time after shall bée forfeited to the King and in his life time hee hath no authoritie to dispose of them after the wound was giuen 4. 5. P. M. Dy. 160 47 A man was bound with two Suerties One mortgaged his goods and then became felo de se for the payment of twentie pounds at two seuerall dayes and the principall debtor for the securitie of his Suerties by his Indenture did sell vnto his sayd two Suerties twentie oxen for twentie pounds with a Prouiso in the Indenture That if hée did discharge or saue them harmelesse of the sayd Obligation of twentie pounds that then the said sale of the twentie oxen should bée void And it was agréed betwéene them that the principall debtor should haue the occupation and vse of the said twentie oxen at the will of the said Suerties and to bée vsed as his owne And after one day of paiment due to the Obligée and no money payd by the seller or principall debtor and before the second paiment was due the seller killed himselfe and became felo de se hauing those twentie Oxen in his possession and the Suerties seised the beasts as their owne And notwithstanding the propertie was in them by the not performance of the condition yet it was adiudged that the Aulmoner should haue the beasts or the money which they were sold for and then hée should discharge the Suerties against the Creditor And so the Aulmoner was awarded to haue in these beasts the best estate of the seller and the same that the Debtor might haue had if hee had payed the debt at the due times which were agréed vpon Homicide by casualtie 48 Though Homicide is most vsually knowne and termed by the killing of one man or woman or more by another man or woman or more yet hominis cedium whereof the same word Homicide is deriued may bée done by some other casualtie though when a man is slayne by some other mischaunce than by the hand or meanes of another man as by the fall of a pit of earth or stone or a trée or killed by a Beare or Bull or such like it is not aptly nor vsually sayd that Homicide is committed but that such a man is slaine 49 When a man commeth to his death by the meanes of any thing that falleth vpon him or by the meanes of a hurt which himselfe receiueth in falling from some other thing without the procurement of another man that thing which is the cause of his death shall bée forfeited to the King taken for a Deodand A Deodand and distributed in almes And it is not materiall whether the thing that killed the man was moouing or not at that time when it killed him for though it were not moouing yet it shall bée taken and accounted as a Deodand as well as if it were moouing Fitz. Cor. 403. M. 6. E. 6. Dyer 77. because all things moouing with the thing which was the cause of the mans death shall bée forfeited in like sort as the principall thing according to the old rule Omnia quae mouent ad mortem sunt Deodanda And yet those goods which bée forfeited as Deodand bée not forfeited vntill the matter be found of Record Co. li. 5. 110 and therefore they cannot be claimed by prescription And the same Iurie which doth find the death of the man must also find and appraise the Deodand A trée and the bough of another tree do kil a man 50 If a man do fell a trée Fitz. Cor. 398. and that trée falleth vpon the bough of another trée which bough falleth vpon a man and killeth him in this case both the bough that killed the man and also the trée which did fall vpon that bough shal be Deodand for they both did moue vnto and were the cause of his death Falling off a cart or from a cart 51 If a man do ride in a cart and the same cart falleth vpon him Fitz. Cor. 388. and killeth him as well the same cart as the horses that drew the cart shall be Deodands And in like sort if a man bee in a cart and by the stirring of the horses which drew the cart or any of them he is cast out of the cart and dyeth thereof Fitz. Cor. 397. Pl. Com. 323. as well the horses which drew the cart as also the cart shall be Deodands for the horses and cart béeing fastened together bée all the cause of the mans death Falling from a cart laden 52 If a man fall from a cart laden with Corne Hay Wood Fitz. Cor. 326. c. and the wheele of the cart breaketh his necke backe or c. whereby hée dieth as wel the Corne Falling from cart that is in lading Hay Wood or c. as the cart shal be Deodands But if a man do fall from a cart as he is lading of Corne Hay Wood Fi. Cor. 326 c. by the stirring of the horses and thereby breaketh his necke backe or c. whereby he dyeth the cart and horses shal be Deodands but not the corne c. for that the corne c. were not the cause of his death If a man that doth driue a cart doe clime vpon one of the whéeles of the cart Fitz. Cor. 409. to gather apples plums or c. and doe fall from that whéele and breaketh his necke back or c. whereof he dieth if it be
the house fearing that they will enter his house and rob him doth cast out vnto them mony or plate which the felons do take and then depart this is robbery for it is in construction of the law taken from the person of a man and for feare 9. E. 4. 26. 29 If one lye in the high way to rob passengers Robbery in will but not in déed and draweth his sword against a man that trauelleth the same way and commaundeth him to deliuer his purse whereupon the same party encountreth him is too strong for him and apprehendeth him or leuieth Huy and Cry and the offendor is thereby taken yet this is no Robberie nor Felony for there was no act done though there was an intent and will to robbe Quia voluntas non reputabitur pro facto 30 Burglary is What is Burglary when one or more persons do in the time of peace breake a house a Church a Wall a Tower or Gatehouse in the night with a felonious intent to robbe kill a man or commit some other Felonie for the which Burglarie the offendor shal be hanged Fit cor 264 22. Ass p. 95 though he take nothing away But that breaking of the house must bee to commit some Felonie For if the offendor be indicted for the breaking of a house to beat some person that is but Trespas 13. H. 4. 8 but if it be to kill another then it is Felony And if a man bée indicted for the breaking of a Close to kill or robbe another it is not Burglarie 1. M. Dy. 99. 31 If a man doe breake a house and doe not enter into it Breaking a house but not entring then it is no Burglarie for a man was indicted Quod burglaritèr fregit ecclesiam in nocte intrauit ad depraedandum bona parochianorum in eadem existentur sed nihil abstulit and this was adiudged Burglary for that the party indicted did enter 32 Burglary cannot be committed in the day but in the night No Burglary in the day for all the indictments of Burglary be Noctantèr fregit St. 39. El. 15. for though by the statute of 39. Eliz. the benefit of Clergie is taken away from any person conuicted for the felonious taking away in the day time of any money or goods of the value of fiue shillings or vpwards in any dwelling house or out-house although no person shal be in the same at the time of the said felony committed and so that offenceis made as penall as Burglary by the losse of the benefite of Clergie yet is it not Burglary for it may be committed in the day time the penaltie of loosing of his Clergy is not inflicted vnlesse the money or goods taken away be of the value of fiue shillings or vpwards Breaking a dwelling house where no person is 33 If a man hath a mansion house Co. li. 4. 40. and he and his family doth vpon some cause goe forth of the house and in the meane time one doth come and breake the house in the night to commit felony this is Burglary For although the owner nor any of his family were in the house yet it is his mansion house for the words of an appeale or indictment of Burglarie be Domum mansionalem ipsius A. B. fregit And in like sort if a man haue two houses and doth inhabite sometime in one of them and some other time in another and hath a familie or seruants in them both and in the night when the seruants be out of the house felons doe breake the house this is Burglarie for that the house is broken ⧠Felonies by Statute ANd now hauing expressed which bee felonies by the common Law it resteth that I declare which be felonies by Statute with the reasons and causes why the same statutes were made so farre as I may be warranted by the same statutes And as in Treasons I began with those Treasons which did concerne the K. and his chiefe magistrates of iustice So in reporting of such lawes and statutes as haue béene made for the supply of some defects at the common Law I will begin with a statute which indeuoreth to restraine such as practise or confederat to destroy the king or his chiefe officers attending on his person or estate 1 For as much as by quarrels made to such as haue béene in great authority office and of counsell with the kings of this Realme hath ensued the destruction of the kings and thereby the vndoing of this Realme so as it hath appeared euidently when compassing of the death of such as were of the kings true subiects was had the destruction of the prince was imagined therby and for the most part it hath growne and béene occasion by enuie and mallice of the kings owne houshold seruants And for that by the lawes of this land if actuall déeds were not had there was no remedy for such false compassings imaginations and confederacies had against any lord or any of the kings Councell or any of the kings great Officers in his houshold or Steward Treasurer Controller and so great inconueniences did ensue because such vngodly demeanor was not straitly punished before that an actuall déed was done for the remedy whereof by a statute made An. 3. H. 7. 14. Conspiring to destroy the king or any lord c. it was ordained St. 3. H. 7. 14. That the Steward Treasurer and Controller of the kings house for the time being or one of them shall haue full authority and power to enquire by xij sad men and discréet persons of the Checke Roll of the kings honourable houshold if any seruant admitted to be his seruant sworne and his name put into the Checke Roll of houshold whatsoeuer he be seruing in any maner office or roome reputed had and taken vnder the estate of a lord make any confederacies compassings conspiracies or imaginations with any person or persons to destroy or murder the king or any lord of this realme or any other person sworne to the kings Councell Steward Treasurer Controller of the kings house that if it be found afore the said steward for the time being by the said xij men that any such of the kings seruants as is abouesaid hath confedered compassed conspired or imagined as abouesaid that he so found by the inquiry be put thereupon to answere And the Steward Treasurer and Controller or two of them haue power to determine the same matter according to the law And if he be put in triall that then it be tried by other xij sad men of the same houshold Challenge And that such misdoers haue no challenge but for mallice And if such misdoers be found guilty by confession or otherwise that the said offence be iudged felony and they to haue iudgement and execution as felons attainted ought to haue by the common law 2 For that vnlawfull and forcible violence and also detestable aduowtrie were committed in
to the next Sessions for the Peace and Gaole deliuerie next ensuing after the sayd yeare And if any such person retained depart within the yeare Departing without licēce without the licence of him that so retained him then to be indicted tried and iudged as a felon and not to haue the benefit of his Clergie 33 By a Statute made Anno 31. Elizab. St. 31. El. 4. it was established Imbeciling the K. Armor c. That if any person or persons hauing at any time hereafter the charge or custodie of any Armour Ordnance Munition Shot Powder or Habiliments of Warre of the Quéenes her heires or successors or of a Victuals prouided for the victualing of any Souldiers Gunners Mariners or Pioners shall for any lucre or gaine or wittingly aduisedly and of purpose to hinder or impeach her Maiesties seruice imbecile purloyne or conuey away any the same Armour Ordnance Munition Shot or Powder Habiliments of Warre or Victuals to the value of twentie shillings at one or seuerall times then euerie such offence shall bée adiudged Felonie and the offendor and offendors therein to be tried procéeded on and suffer as in case of Felonie The suit within a yere after the offence But none shall bée impeached for any offence against this Statute vnlesse the same impeachment bée prosecuted or begun within a yeare next after the offence done And this Act nor any attainder or attainders of any person or persons for any offence made felonie by this Act shall in any wise extend or bée interpreted to make the offendor or offendors to forfeit any lands tenements or hereditaments any longer than during his or their life or liues or to make any corruption of blood to any the heire or heires of any such offendor or offendors No corruptiō of blood or forf of dower or to make the wife of any such offendor to loose or forfeit her dower or title of dower of or in any lands tenements or hereditaments or her action or interest to the same Proofe in discharge of the offendor any thing in this Act c. notwithstanding And such person or persons as shall be impeached for any offence made felonie by this Statute shall by vertue of this Act bee receiued and admitted to make any lawfull proofe that hée can by lawfull witnesse or otherwise for his discharge and defence in that behalfe any law c. notwithstanding Cutting downe of Powdike 34 By a Statute made Anno 22. H. 8. and reuiued Anno 2. 3. St. 22. H. 8. Ph. Mar. it was ordained That euerie peruerse and malitious cutting downe and breaking vp of any part or parts of the dike called new Powdike in Marshland in the Countie of Norffolke and the broken dike otherwise called Oldfield dike by Marshland in the isle of Ely in the Countie of Cambridge or of any other banke béeing parcell of the Rinde and vttermost part of the causey of Marshland aforesaid made for the defence and saluation of the sayd countrey of Marshland at euerie time and times from henceforth committed and done otherwise than in working of the sayd bankes or dykes for the fortifying repayring and amending of the same shall bee taken reputed and adiudged Felonie And the offendors and doers of the same and euerie of them shall bée adiudged and reputed felons And the Iustices of Peace of the sayd Counties of Norffolke and Cambridge within the sayd isle at euerie of their Sessions within the same isle and Counties to be kept shall haue power to cause inquirie to bée made of euerie such offence so at any time in forme aforesayd hereafter to bée done and committed and to award like Proces against euerie of the sayd offendors with like iudgement and execution of the same if they or any of them bée found guiltie by verdict or otherwise as the sayd Iustices haue vsed to do vpon other felonies being felonie by the common law Taking the othe for the Kings title 35 By a Statute made Anno 3. Iac. 4. it was enacted St. 3. Iac. 4. That euerie subiect of this Realme that after the tenth day of Iune next comming shall goe or passe out of this Realme to serue any forreine Prince State or Potentate or shall after the sayd tenth day of Iune passe ouer the Seas and there shall voluntarily serue any such forreine Prince State or Potentate not hauing before his or their going or passing taken the othe viz. That our Soueraigne Lord King Iames is lawfull and rightfull King of this Realme c. before the officer thereunto appointed shall be a felon And if any Gentleman or person of high degrée or any person or persons which hath borne or shall beare any office or place of Captaine Lieutenant or any other place charge or office in Campe Armie or Companie of Souldiers or Conductor of Souldiers shall after go or passe voluntarily out of this Realme to serue any such forrein Prince State or Potentat before that he and they shal become bound with two such suerties as shall be allowed of by the officers by this Act limited to take the said bond vnto the K. his heires or successors in the summe of xx.l. of currant English money at the least bound not to be reconciled nor to make conspiracie with condition to the effect following he shall be a felon viz. That if the within bounden c. shal not at any time thē after be recōciled to the pope or sea of Rome nor shal enter into or consent vnto any practise plot or conspiracie whatsoeuer against the Kings Maiestie his heires and successors or any of his or their estate and estates realms and dominions but shall within cōuenient time after knowledge therof had reueale disclose to the K. Maiestie his heires and successors or some of the Lords of his or their priuie Counsell all such practises plots and conspiracies then the said Obligation to be void St. 43. El. 13 36 By the stat made Anno 43. El. it was ordained Forcible carrying any person out of Cumberland c. That whosoeuer shall at any time hereafter without lawfull authoritie take away any of the K. subiects against his or their will or wils and carrie them out of the counties of Cumberland Northumberland Westmerland and the Bishopricke of Durham or to any other place within any of the said Counties or detaine force or imprison him or them as prisoners or against his or their wills to ransome them or to make a prey or spoyle of his or their person or goods vpon deadly fewd or otherwise Or whosoeuer shal be priuie consenting aiding or assisting to any such taking detaining or carrying away of any such person or persons as aforesaid Or whosoeuer shall take receiue or carrie to the vse of himselfe or wittingly to the vse of any other any money corne cattell or other consideration commonly called Blacke mayle for the protecting or defending of him or
dammages In appeale the acquitall of the principall is not the acquitall of the accessorie for if he will recouer dammages he must be tried notwithstanding the acquitall of the principall But some doe thinke that he shall recouer dammages by the acquitall of the principall without being further tried or otherwise it would ensue that the Court should admit an accessorie where there had béene no principall which were inconuenient ⧠Breaking of Prison and Rescous BY the common Law of this Realme if a man had béen imprisoned and broken the prison hée should haue béene hanged for what cause soeuer he had béene imprisoned yea although it had béene but for trespasse Which great enormitie was redressed by the statute of Anno 1. Ed. 2. intituled St. 1. Ed. 2. De frangentibus prisonam the wordes wâ—â—reof be these Touching prisoners breaking of prison our Lord the King doth will and commaund that none which from hencefoorth doe breake prison shall haue iudgement of life and member for the breaking of prison onely except the cause for the which he was taken and imprisoned doth require such iudgement if hée should haue béene conuicted thereof according to the lawe and custome of the Realme though in times past it hath béene otherwise vsed And therefore it is to be considered who is a prisoner and what is breaking of prison Who is a prisoner according to the meaning of the foresaide Statute Euery person who is vnder arrest for felony is a prisoner aswel being out of the Gaole as within So that if hée be but in the Stockes in the stréete or out of the Stockes in the possession of any that hath arrested him 1. Ed. 3. 17. 1. M. Di. 99 and doth make an escape that is a breaking of prison in the prisoner for imprisonment is none other but a restraint of libertie 2 Though the letter of the stat of AnÌ„ 1. Ed. 2. 1. H. 7. 6. 25. Ed. 3. 42 1. Ed. 3. 17. be touching prisoners breaking of prison A stranger breaketh prison yet if a stranger do breake the prison he is within the compasse of this statute for that by the common lawe this was a breaking of prison in a stranger and felonie in him at that time and is felonie also at this time in the prisoner that escapeth by force of such breaking of prison by a stranger although before the said Statute it was not felony in the prisoner Letting a prisoner escape 3 If a Gaoler or any other which kéepeth a prisoner vnder arrest doe let him goe at libertie this is not felonie in the prisoner because it was no breaking of prison in the Gaoler But all the felonie in this case resteth in him who did let the prisoner escape and that is by a voluntary escape and not by breaking of prison which is felony in him that suffered him to escape 2. Ed. 3. 1 4 If by the negligence of the Gaoler or any other which hath the prisoner vnder arrest the prisoner doe escape Negligent escape this is felonie in the prisoner that doth escape for that the prisoner in making of escape did breake the prison but it is not felonie in him out of whose custodie he did escape 5 To breake prison is intended aswell of a Rescous made of a prisoner Rescuing of a prisoner as of breaking of prison 1. H. 7. 6. As if a prisoner be vnder arrest for felony and a stranger will feloniously take him out of the possession of him that hath arrested him this Rescous is a breaking of prison and is felonie as wel in the partie which escapeth as in him that made the Rescous and so was it by the common law Fi. Cor. 333 6 If a stranger disturbe the arresting of a felon Disturbing of arrest that manner of Rescous is not felonie for the letting of a felon escape which is not arrested for felony is not felonie but if the felon had beene taken and arrested and after rescued this had béene felonie 2. Ed. 3. 1. 1. H. 7. 6. 7 If the Sherife returne a Rescous The Sherife returneth a Rescous of a felon taken out of his possession or doe returne an escape that the prisoner escaped from him this wil not serue as an indictment to put the partie to answer thereunto for that it is contrarie to the Statutes of 25. Ed. 3. 28. Ed. 3. 42. Ed. 3. St. 25. E. 3. 4 St. 28. E. 3. 3 St. 42. E. 3. 2. which haue ordained That none shall be imprisoned or put out of his fréehold without an indictment or presentment before Iustices or some matter of Record or by due Proces or by writ originall which the Sherifes returne is not S. Indictments 19. 2. Ed. 3. 1. 8 It is no difference whose prison the offendor doth breake viz. Whos 's the prison broken must be whether it be the Kings prison the Lords of a fraunchise or any other persons for whose soeuer it be the offendor is within the compasse of this statute though it was otherwise before the Statute Britton viz. it was not felonie vnlesse he had broken the Kings prison 9 If one be attached taken for trespasse Attachment for trespasse and he which is attached doth ecape or is rescued by a stranger this is no felonie but trespas for that the Statute saith St. 1. E. 2. Except the cause for the which he is taken and imprisoned doth require such iudgement But yet the fine shal be according to the qualitie of the person to whom the rescous is made according to the time and place wheÌ„ where it is done 22. Ed. 3. 13 A Iustice sitting in iudgement arresteth an offendor And therfore if a Iustice assigned shall arrest a man that maketh a fraie before him and a stranger doth rescue him by force whereof the prisoner escapeth in this case as wel the prisoner as he that made the rescous shal be disherited and shal suffer perpetuall imprisonment for that the attachment of such a Iustice was the attachment of the King himselfe in the iudgement of the law But if such a Iustice make an arrest when he is out of his place then such an arrest and escape is but fineable nor of any other effect but as if the Sherife or some other officer had made the arrest 1. H. 7. 6. 10 If a maÌ„ be rescued at the gallows or as he is in going to executioÌ„ this is within the compasse of this Statute Rescous after iudgement for the words of the Statute shal be inteÌ„ded aswell in the preter tence as in the present tence viz. as well of iudgemeÌ„t giuen as of iudgement to be giuen for the cause for the which he was taken and imprisoned did require such iudgement The imprisonment and not the attainder respected 11 It is not material whether the prisoner which did escape was 1. Ed. 3.17 or
that did escape 44. As p. 12. 42 As p. 5. 43. E. 3. 36 shal be indicted of felonie or make his abiuration then he that suffered him to escape shall pay a fine to the King Where a man arrested may be set at libertie without further triall where not 34 If a man be arrested of felonie by the Constable or some other man Kel fo 34 and after he that made the arrest hath intelligence that there is no such felony committed in this case he may set the partie arrested at libertie and hée shall not be charged with an escape for there can be no felon where there is no felonie committed But if a man be slaine and one is arrested for the same felonie or for the suspition thereof although that he who made the arrest doth after vnderstand 44. As p. 12. that the partie arrested is not guiltie of that offence or that the party was arrested vpon malice yet he may not set the partie arrested at libertie for he must be deliuered by a course of lawe and not by any mans discretion for as the law hath taken knowledge that a man was arrested of felonie so must it take knowledge how he is discharged thereof And the same law is if a man be arrested for any other felonie committed and after set at libertie by the partie that arrested him or any other c. Pursuit by Huy and Crie FOr the preuention of felons and felonies by watch and ward and to the intent that they which shall commit any Homicides Burglaries Robberies or other felonies may be apprehended and iustified by the Law Or if they escape and flie away that they may be pursued and taken by Huy and Crie and committed to prison and to the end that due punishment may be inflicted vpon those that do not pursue or doe conceale or not attach felons a Statute was made at Westminster Anno 3. Ed. 1. by the which it was ordained All men shall pursue the huy and crie St. 3. E. 1. 9. That all men generally shal be readie at the commandement and summons of the Sheriâ—es and at the crie of the Countrie to pursue and arrest felons when neede shall be as well within Fraunchises as without they that wil not and thereof be attainted shal make a grieuous fine to the King And if default be found in the Lord of a Franchise the King shall seize the Fraunchise into his hands And if default be in the bailife he shall be one yeare imprisoned and after make a grieuous fine and if he haue not whereof he shall haue two yeares imprisonment And if the Sherife Coroner or any Bailife within such franchise or without for reward or intreatie ConcealemeÌ„t or not attachment of felons or any affinitie doe conceale consent or procure to conceale the felonies done in their liberties or otherwise will not attach or arrest such felons whereas they may or otherwise will not doe their offices for the fauour that they beare to such offendors and be thereof attained they shal be one yeare imprisoned and make a grieuous fine and if they haue not whereof to make fine they shall be thrée yeares imprisoned And by a Braunch of an other Statute made the same Anno. 3. Ed. 1. St. 3. Ed. 1. intituled Officium Coronatoris it was enacted That vpon all Homicides Burglaries men slaine or put in great danger huy and crie shall be leuied and euery man shall follow the huy and crie and the offendors steps if it may be and whosoeuer doth not and is thereupon conuicted shall be attached to appeare before the Iustices of Gaale deliuerie Freshsuit and inquirie after felons 2 After by another Statute made at Winchester Anno 13. Ed. 1. St. 13. E. 1. 1 it was prouided That immediately after any felonies and robberies be committed fresh suit shall be made from towne to towne and from countrie to countrie and Enquests shall be taken if néed be by him that is chiefe Lord of the town and after in hundreds franchises and in the countie sometime in two thrée or foure counties in case where felonies be committed in the Marches of the Shire so that offendors may be attainted and suffer punishment And if the countrie will not answer for the bodies of such offendors the people dwelling in euery such countrie shall answer for the robberies done the dammages so that the whole hundred where the robberie shall be done with the franchises which be within the same hundreds shall answer for the robberies done The penaltie of the countrie if a felon bee not taken And if the robberie be done in the diuision of two huÌ„dreds then both the hundreds together with the franchises within the precinct of them shall answer And the countrie shall haue no longer time after the robberie and felonie committed than halfe a yeare within the which halfe yeare they must agree for the robberie or else they shal be answerable for the bodies of the offendors After by a Statute made anÌ„ 28. E. 3. 11. St. 28. E. 3. 11 it is established That the countrie shal haue no longer terme after the robberie or felonie committed than fourtie daies within which it behooueth them to make gree of the robberie or offence or that they answer the bodies of the offendors And whereas the said stat of Winchester hath ordained That immediately after any felonies and robberies be committed Co. li. 7. 6. fresh suit shal be made from towne to towne and from countrie to countrie Though the said Stat. doth not make mention in what place or at what time the robberie shal be done for the which the countrie shall answer if they doe not pursue and apprehend the felons yet the sages of the law respecting the reason and ground of that stat doe resolue that the robberie which the countrie must answer for is to be committed in an open place The place time of the robberie committed which the couÌ„trey may take knowledge of by themselues without huy and cry or other notice giuen to them for if a man be robbed in his house in the night or day and the felons escape the hundred where the house is shall not be charged therewith for euery mans house is his castle which he must defend at his owne perill and if a man be robbed in his house it shal be accounted his owne follie that he did defend it no better And other men may not enter into that house for the safeguard thereof as they may enter into the common field And also the robberie which the countrie must answer for is to be committed in the day time and not in the night viz. at such times add seasons as be meet for men to trauel in and not at such a time which is ordained for men to rest in And therefore if a man be robbed in the morning before day the countrie shall not be charged therewith
but if it be during the day light though the sunne be set the countrie shal be charged therewith for whosoeuer doth trauel during the day light is in the guard and protection of the lawe and if any doe iourney by night he doth it at his owne perill St. 13. E. 1. 4 3 For the more suretie of the countrie and spéedier defecting of offendors warding of walled towns by the said Statute of Winchester it was enacted That in great townes beeing walled the gates shal be shut from the sunne setting vntill the sunne rising and no man shall lodge in the Suburbs or any place out of the town froÌ„ nine of the clocke vntil day vnlesse his Host will answer for him And the bailifs of townes euery weeke or at the least euery fifteenth day shall mak enquirie of all persons beeing lodged in the Suburbes or in forraine places of the townes and if they find any that hath receiued any suspitious persons not kéeping the Kings peace the baylifs shall execute right and iustice therein St. 13. E. 1â—4 4 And by the said statute of Winchester it was moreouer ordained That in all townes watch shall be kept as in times past it hath beene vsed That is to say When the night watch shall begin and end from the feast of the Ascension vntill Michaelmas in euery citie sixe men shall watch at euery gate in euery Borough twelue men in euery town sixe or foure according to the number of the inhabitants of the towne and they shall watch the towne at night from the sunne setting to the sunne rising And if any stranger doe passe by them he shall be arrested vntill the morning and if no suspition be found he shall goe quit and if they find cause of suspition they shall forthwith deliuer him to the Shirife and the Shirife shall receiue him without hurt vntill he be acquited in due manner And if he will not obey the arrest Resisting of arrest they shall leuie Huy and Cry vpon him and such as kéepe the Towne shall follow with Huy and Cry with all the Towne and Townes néere and from Towne to Towne vntill he be taken and deliuered to the Shirife as is beforesaid and for the arrestments of such strangers none shall be punished And by the Statute of Anno 5. H. 4. St. 5. H. 4. 3 Iustices of Peace haue power to make inquisition in their Sessions from time to time and to punish them which be found in default after the tenour of the foresaid statute of Winchester Enlarging of high waies 5 And for the more spéedie apprehension of felons and that they may haue the lesse meanes to escape when they haue robbed or otherwise offended St. 13. E. 1. 5. by the said statute of Winchester it is further established That the highwaies leading from one Market towne to another shal be enlarged there where any wood hedges or ditches be so that there shal be no ditch wood or bush where he that doth lewdly may escape within two hundred foot of the high way on the one side and two hundred foot on the other but this Statute extendeth not to Ashes or great Trees And if any robberies be done by default of breaking downe ditches vnderwood and bushes the Lord shall answer therefore and if it be a murder the Lord shal be punished at the Kings pleasure And if the Lord be not able to cut downe the vnderwood the Countrie shall helpe him And within the kings demesne woods in forrests and without the waies shal be enlarged as before is said And if any Parke be neere vnto the high way the Lord thereof shall diminish it by the space of two hundred foot from the high way or els make such a wall ditch or hedge that offendors cannot goe forward or backeward to any hurt 6 Because it is very hard and extreame to many persons for that by the foresaid Statutes of 13. Ed. 1. 28. E. 3. 11. they do remaine charged with the penalties therein contained notwithstanding their vnabilitie to satisfie the same and though they do as much as in reason might be required in pursuing such malefactors offendors whereby both large scope of negligence is giuen to the inhabitants resiants in other hundreds counties not to prosecute the huy crie made followed brought vnto them by reason they are not chargeable for any portion of the goods robbed nor with any dammages in that behalfe giuen also great incouragement imboldening is likewise giuen to the offendors to commit daily more felonies and robberies seeing it is in a maner impossible for the inhabitants and resiants of the said hundred and franchise wherein the robberie is committed to apprehend them without the ayde of other hundreds and counties adioyning And for that also the partie robbed hauing remedie by the foresaid statutes for the recouering of his goods robbed and dammages against the Hundred wherein the robberie was committed is many times negligent and carelesse in prosecuting and pursuing the saide malefactors and offendors The Hundred charged wher fresh sute shall cease For the qualifying of all which extreamities by a statute made Anno 27. Eliz. St. 27. El. 13 it was ordained That the inhabitants and resiants of euery or any such Hundred with the franchises within the precinct thereof wherein negligence fault or defect of pursute and fresh sute after huy and crie made shall happen to be shall answer and satisfie the one moitie or halfe of all and euery summe and summes of money and dammages as shall by force and vertue of the saide Statutes viz. of 13. Ed. 1. and 28. Ed. 3. or either of them be recouered or had against or of the same Hundred with the franchises therein in which any robberie or felonie shall at any time heereafter be committed or done And the same moitie shall and may at any time héereafter be recouered by action of debt bill plaint or information in any of the Quéenes Courts of Record at Westminster by and in the name of the Clerke of the Peace for the time being of The Clerke of the Peace shall prosecute the sute or in euery such Countie within this Realme where any such robberie and recouerie by the party or parties robbed shal be without naming the Christian name or the surname of the saide Clerke of the Peace Which moitie so recouered shall be to the only vse and behoofe of the inhabitants of the said Hundred where any such robberie or felonie shall be committed or done St. 27. El. 13 7 If any Clerke of the Peace of or in any Countie within this Realme shall at any time héereafter commence or preferre any such sute action or information and shall after the same so sued commenced or preferred The Clerke of the Peace doth die or is remooued happen to die or to be remooued out of his office before recouerie and execution had yet no such
proces in Appeale that hee bring the bodies of the apellées to the next countie to answer the plaintife And if the said Serieant do answer at the second county that he cannot find them Proces vpon Appeal before the Coroner thē an Exigent shal be awarded against the principals But the Exigent touching the accessories shall stay vntill the principals be outlawed And so it appeareth by Britton 22. Ass p. 81 Fi. Cor. 234 Fitz. Proces 226. some other authoritie that an Exigent shal be awarded in Appeale of death cōmenced before the coroner in the coūty after the first Capias returned Fitz. Proces 226. Fitz. Cor. 184. St. 25. Ed. 3. 14. 59 But in an Appeale or Indictment of robbery or other felony Proces vpon an Appeale or Indictment of felonie there shal be two Capias awarded before the Exigent And the same is confirmed by these words of the stat de proditionibus made 25. E. 3. viz. It is agréed that after any man be indicted of feloni ebefore the Iust to heare and determine in their Sessions the Sherif◠shal be commanded to attach his body by a writ or precept called Capias And if the Sherife returne in the said precept that the body is not found another writ or precept of Capias shall incontinently be awarded returnable thrée wéekes after and in the same writ or precept it shall bée comprised that the Sherife shall cause to be seised all his chattels and safely kéepe them vntill the day of the writ or precept returned And if the Sherife returne that the body is not found and the indictée commeth not S. Forf 44. the Exigent shal be awarded and the chattels shal be forfeited as the law of the crown commaundeth But if he come and yéeld himselfe or be taken by the Sherife or other minister before the returne of the second Capias then the goods and chattels shall be saued This statute doth not make mention of the death of a man nor of robberie but of felonie generally which includeth all And yet some doe affirme that it was intended to be made onely for robberie and larcenie Fitz Proces 226. but it is prouided for those which be indicted before Iust to heare and determine and not for those against whom an Appeale is commenced before the Coroner and it was rather ordained to seise the felons goods vpon the second Capias than to giue proces Proces against indictées in another county 60 And because some persons appealed or indicted of diuers felonies in one countie or outlawed in the same countie were dwelling or receiued in another county whereby such felonious persons indicted and outlawed haue béen incouraged in their mischiefe for that they might not be attached in another countie for the redresse whereof by a stat made anno 5. E. 3. it was ordained St. 5. E. 3 11 That the Iust assigned to heare and determine such felonies shall direct their writ to all the counties of England where néed shall be to take such persons indicted 61 Because diuers persons for their singular reuenge and not of right malitiously of their subtill imagination haue caused and procured falsly to indict and appeale seuerall of the Kings subiects of diuers treasons felonies and trespasses before I. of peace and other commissioners other Iust hauing authoritie to take indictments or appeals in diuers forreine counties liberties and franchises of England wherein the said liege people neither bee nor euer were conuersant or dwelling By force of which appeales and indictments and the processes therupon made in the said counties franchises and liberties the said persons so indicted haue béen put in Exigent and after outlawed and therupon their goods and chattels lands and tenements haue bin forf and they in great perill of their liues whereas the said persons so indicted appealed or put in Exigent or outlawed had neuer knowledge of such indictmēts appeals Exigents or Outlawries For the preuention whereof it was ordained by the stat of an 8. H. 6. St. 8. H. 6. 10 That vpon euery indictment or appeale by the which any of K. liege people dwelling in other counties Appeale of indictments of persons dwelling in forrein Counties than there where the indictment or appeale shal be taken of treason felony trespas before I. of peace or any other hauing power to take such indictments or appeales or other Commissioners or Iustices in any county franchise or libertie within England before any Exigent awarded vpon any indictment or appeale to be taken in forme aforesaid immediatly after the first writ of Capias vpon euery such indictment or appeale awarded and returned another writ of Capias shal be awarded directed to the Sherife of the county whereof he which is indicted is or was supposed to be conuersant by the same indictment returnable before the same Iustices or Commissioners before whom he is indicted or appealed at a certaine day containing the space of iij. moneths from the date of the said last writ by the which writ of second Capias it shal be contained commanded to the same Sherife to take the body of him which is so indicted or appealed if he may bée found within his bailiwike if he cannot be found within his bailiwike that the Sherife shall make proclamation in two counties before the returne of the same writ that he which is so indicted or appealed shal appeare before the same Iust or Commissioners in the countie liberty or franchise where he is so indicted or appealed at the day contained in the said last writ of Capias to answer to the K. or to the party of the felony treason or trespas whereof he is indicted or appealed After which second writ of Capias so serued and returned if hée which is so indicted or appealed doth not come at the day of the said writ of Capias returned the Exigent shal be awarded against such indictees or appellées and euery of them And if any Exigent be awarded vpon any such indictment or appeale against the foresaid forme or any outlawrie therupon pronounced the sayd Exigent and the Outlawrie thereupon pronounced and euery of them shall bee void And the partie against whom such Exigent is awarded or outlawrie pronounced against the foresaid forme shall not bee endamaged in his life lands goods c. And euery one which is indicted or appealed in forme aforesaid after he is acquited by verdict in forme of law may haue an action vpon the case against euery procurer of such indictments or appeales in which actiō there shal be like proces as in an action of trespas vi armis And if the said procurers be attainted the plaintife shall recouer treble damages But this stat extendeth not to indictments or appeals taken in the countie of Chester Nor to any indictment or appeale of felonie or treason taken of any of the K. liege people which at the time of the same felonie or treason
supposed is and was conuersant within the countie whereof the indictment or appeale maketh mention but the like proces shal be made against such indicted or appealed person as hath béene vsed 62 And because after the making of the sayd Statute of Anno 8. H. 6. some intending to defraud the sayd Statute did sue to remooue such appeales and indictments out of the hands of the Iustices or Commissioners aforesayd into the Kings bench and elsewhere by Certiorari or otherwise vnknowne to the partie so indicted and therupon sued the proces vsed at the common law before the making of the said Statute in the Kings Bench and elsewhere after the remoouing therof to the great impouerishment of diuers the kings subiects Therefore by the Statute made Anno 10. H. 6. St. 10. H. 6. 6 it was enacted Proces vpon an indictment or appeale remoued into the K. bench That if any such indictments taken before any Iustices of peace or any other hauing power to take such indictments or appeales or other Iustices or Commissioners in any county franchise or libertie of England shal be remoued into the Kings Bench or elsewhere by Certiorari or otherwise then after such remoouing before any Exigent awarded vpoÌ„ any such indictment or appeal in form aforesaid taken immediatly after the first writ of Capias vpon euery such indictment or appeale awarded and returned another writ of Capias shall bee awarded directed to the Sherife of the countie wherof he that is indicted or appealed is or was supposed to be conuersant by the same indictment or appeale returnable in the K. Bench at a certaine day contayning the space of thrée moneths from the date of the said last writ of Capias according to the maner and forme that the I. of peace and others ought to haue done before such remouing And if any Exigent be awarded vpon any such indictment or appeale after such remouing against the forme aforesaid or any outlawrie thereupon pronounced as wel the same Exigent as the outlawrie and euery of them shal be void In the Appeale he must be supposed to be of a forrein County 63 The foresaid stat of 8. H. 6. doth not take place St. 8. H. 5. 10. but where by the Appeal or by the Indictment it is precisely supposed that the defendant was dwelling in a forrein county for if he be supposed to be dwelling there by an Alià s dictê° it is out of the compasse of the stat 1. E. 4. 1. As in an appeal or indictment in the county of Middlesex against A.B. in comitatu tuo yeoman alias dictum A.B. de C. in comitatu Sussex yeoman Because that which is supposed by the Alià s dictê° is not trauersable nor materiall And likewise it is in an appeale or indictment against I. of S. in comitatu H. nuper de L. in comitatu K. nuper de R. in comÌ„ T. An appellée dwelling in no place certaine 64 If a man be appealed to be dwelling in no place certaine the day of the Appeale commenced but in this maner Fitz. Proces 192. viz. nuper de S. in comitatÌ„ L. and nuper de B. in comitÌ„ T. then proces shal be awarded into all the counties whereof he is so supposed to be of late dwelling Proces into a County Palantine 65 The foresaid stat of 8. H. 6. hath ordained That after the first Capias St. 8. H. 6. 10 another Capias shal be awarded to the Sherife of the county whereof he which is so indicted is or was supposed to be dwelling by the same indictment And therefore if an appeale or indictment be exhibited against one in the countie of M. naming him of D. in the county of Chester or of some other place which is a countie Palantine In this case no proces can be awarded vpon this Stat. which may be directed to the Sherife according to the words of the Statute But proces shal be awarded vpon this statute to the prince or his lieutenant 19. H. 6. 2 31. H. 6. 11. for it is in like mischiefe and the statute is generall in all the Realme which doth bind as well those which be of a Countie Palantine as others But if they of the Countie Palantine will not serue and returne the writ directed to them vpon this statute then without further delay the Exigent shall be awarded otherwise the party should be infinitly delaied Proces against principal accessory 66 The foresaid Proces specified in the before rehearsed stat of 8. H. 6. shal extend as well to accessories as to principals sauing that the Exigent as to the accessories shall be staied vntill the principals be outlawed And that by the Statute of West 1. the words whereof be these St. 3. E. 1. 14 Because men haue vsed in some counties to outlaw such persons as be appealed of commandement force aide or escape within the same terme that they do outlaw him which is appealed of the fact it is ordained that none shal be outlawed for an appeale of commandement force ayd or receit vntill he that is appealed of the déed be attainted so that one law shal be thereof through the whole Realme But the appellant shall not let to attach his appeale at the next countie against them as well as against the appellées of the déed But the Exigent against the Accessorie shal stay vntill the appellée of the déed be attainted by outlawrie or otherwise And Britton Britton doth affirme That as soone as the principals be outlawed the Exigent shal be awarded against the accessories St. 3. E. 1. 14 67 The before rehearsed statute of West 1. séemeth onely to extend to Appeales commenced by bill The stat of W. 1. exteÌ„deth onely to Appeals commenced by bil for in an Appeale commenced by writ it appeareth not vntill the declaration made thereupon that there bée any accessories in the Appeale but for any thing contained in the writ all doe appeare to be principals 43. Ed. 3. 17. and for that cause the Exigent is awarded against them all at one time And therefore the plaintife must be aduised how he doth pray the Exigent and against whom for if he do pray the Exigent against them all he is therby concluded after to count against any of them as accessories for the law intendeth that he must take knowledge which were accessories and which not And therefore in that case he should haue staid the demaunding of the Exigent against them vntill the principals had béene attainted And that is the difference betwéene the principals and the accessories as touching the time of the awarding of the Exigent 68 If an Appeale be brought against diuers and one doth appeare plead In Appeale one doth appeare and another makes default yet proces shall be continued against the residue But if hee which appeareth doth plead in abatement of the Appeale or matter in barre which proueth that the Appeale
any person before made béeing by force of the foresaid statute of 11. H. 4. in shirifes and bailifes of Franchises seuerall great extortions and oppressions were done in diuers Counties of this Realme by subtilty and vntrue demeanor of shirifes and their ministers to many persons by making and returning at euery Sessions holden within the said Counties for the body of the shire names of such persons as for the singular gaine of the said shirifes and bailifes would be wilfully forsworne by the sinister labour of the said shirifes and their ministers By reason whereof by their couin and falsehood many true and substantiall persons were diuers times wrongfully indicted of Murthers Felonies and other misbehauiours to the vtter losse of their liues goods and lands and sometime also by the labor of the said shirifs great Felonies and Murthers were concealed and not presented by the said persons partially returned by the same shirifs or their ministers to the intent to compell the offendors to make fines and giue rewards to the said Shirifes and their ministers For the preuention of which enormities by a stat made Anno 3. H. 8. it was established St. 3. H. 8. 12 That all panels to be returned which bée not at the suit of any party Panels for indictments reformed by the Iustices that shall be made and put in by euery shirife and their ministers before any I. of Gaole deliuery or I. of Peace whereof one to be of the Quorum in their open Sessions to inquire for the king shal be reformed by putting to and taking out of the names of the persons which so be impanelled by euery shirife and their ministers by the discretion of the same Iustices before whom such panels shall be returned And the same Iustice and Iustices shall commaund euery shirife and their ministers in his absence to put other persons in the same panels by their discretions And the same panels so reformed by the said Iustices be good and lawfull And if any shirife or any of their ministers at any time do not returne the same panels so reformed then euery such shirife or minister so offending for euery such offence shall forfeit xx l. the one halfe to the king and the other to him or them that will sue for the same by action of Debt at the common law or Bill c. wherin no W.E. or P. shal be allowed and the kings pardon shall be no barre against the party or parties that shall sue the same 9 It is to be thought that by force of the statutes before rehearsed sufficient honest and indifferent Iurors were returned by the shirifes of Counties or that the Panels by them returned were reformed by the Iustices so that if any defect were committed in Indictments or in concealing of offences or offendors then the same was in the Iury which were charged for the body of the Shire to make inquirie for the searching forth of the truth whereof and for the punishment of the said offendors according to their demerites by a statute made Anno 3. H. 7. it was ordained St. 3. H. 7. 1 That the Iustices of peace of euery Shire of this Realme for the time being may doe to take by their discretion an enquest Enquest to inquire of concealments whereof euery man shall haue Landes and Tenements to the yearely value of forty shillings at the least to inquire of the concealements of other Enquests taken before them and before other of such matters and offences as are to bée inquired and presented before Iustices of Peace whereof complaint shall be made by Bill or Bils as well within Franchise as without and if any such concealement be found of any Enquest had or made within the yeare after the same concealement euery person of the same Enquest shall bée amerced for the same concealements by the discretion of the same Iustices of Peace the said amerciaments to bée assessed in plene Sessions 10 For as much as seuerall persons vpon great grounds of vehement suspitions as well of high Treasons petit Treasons and misprision of Treason as of Murthers were many times sent for from diuers Shires and places of this Realme and other the Kings Dominions to the Kings great charges to be examined before the Kings Councell vpon their offences to the intent that conuiction or declaration of such persons should spéedily ensue as the merits of their cases should require And albeit that after great trauaile taken in the examination of such persons it appeared to the said Councell by confession witnesse or vehement suspect that such persons were rather guilty of such offences whereof they were examined then otherwise yet neuerthelesse such offendors so examined by the course of the common Lawes of this Realme must be indicted within the Shires or places where they committed their offences and also tried by the inhabitants and fréeholders of such Shires and places although by their confessions or by sufficient witnes their offences were certainely knowne to the Kings Councell By reason whereof besides the trauaile of the Kings Counsell the King was often put to great charges in remaunding such persons to the countries where they offended there to bée indicted and tried of their offences And sometimes the inhabitants and fréeholders of the Shires or places where such offences were done were compelled to appeare out of their shires or places for such causes to their great charges for the triall or declaration of such offences And sometime by occasion of the charges for remaunding such offendors to be indicted and tryed by the course of the common Law such offendors did lye still in prison and were forgotten whereby many times by the helpe of their confederats they escaped vnpunished to the great courage and euill example of euill doers For the reformation whereof by a statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 23. That if any person or persons being examined before the Kings Councell or thrée of them vpon any manner of Treasons misprision of Treasons or Murthers doe confesse any such offences or that the said Councell or thrée of them vpon such examination shall thinke any person so examined to be vehemently suspected of any Treason misprision of Treason or Murther then in euery such case by the Kings commaundement his Maiesties Commission of Oyer and Terminer vnder his great Seale shal be made by the Chancellor of England to such persons Indictments and trials where the king will and to such Shires and places as shall bée named and appointed by the Kings Highnesse for the spéedie triall conuiction or deliuerance of such offendors Which Commissioners shall haue authoritie to inquire heare and determine all such Treasons misprisions of Treasons and Murthers within the Shires and places limitted by their Commission by such good and lawfull persons as shal be returned before them by the Shirife or his ministers or any other hauing power to returne Writs and Proces for that
purpose in whatsoeuer other Shire or place within the Kings Dominions or without such offences of Treasons misprisions of Treasons or Murthers so examined were done or committed and that in such cases no challenge for the Shire or Hundred shall bee allowed After which Statute there was a Statute made Anno 1. 2. Ph. Ma. whereby it was ordained St. 1. 2. P. M. 10. That trials to be hereafter had awarded Triall of Treason or made for any Treason shal be had and vsed only according to the due order and course of the common lawes of this Realme and not otherwise 12. El. Dyer fol. 286 The foresaid stat of 33. H. 8. is repealed by the said stat of 1. 2. Ph. M. touching the indictment and triall of Traitors B for they are to be indicted and tried in the county where the offence was committed or by fréeholders of that county according to the course of the common law notwithstanding that they haue confessed their offences before iij. of the K. Councell But for the triall of Murther the said stat of 33. H. 8. doth continue in force 11 For as much as some doubts and questions were moued whether certaine kinds of Treasons misprisions and concealements of Treasons committed out of the Realme of England and other the Kings dominions can or may by the common lawes of this Realme be inquired of heard and determined within the Realme of England Therefore for a plaine order remedy Indictments and trials of Treasons cōmitted out of this Realme and declaration therein to be had St. 35. H. 8. 2 by a statute made Ann̄ 35. H. 8. it was enacted That all manner of offences being already made or declared or hereafter to be made or declared by any of the Lawes and Statutes of this realme to be Treasons misprisions of Treasons or concealements of Treasons and done perpetrated or committed or hereafter to be done perpetrated or committed by any person or persons out of this Realme of England shall be from henceforth inquired of heard and determined before the kings Iustices of his Bench for pleas to be holden before himselfe by good and lawfull men of the same shire where the said Bench shall sit and be kept Or els before such commissioners and in such shire of the realme as shal be assigned by the kings commission and by good and lawfull men of the same shire in like manner forme to all intents and purposes as if such treasons misprisions of treasons or concealements of treasons had bin done committed within the same shire where they shal be inquired of heard and determined as is aforesaid But if any péere of this Realme shall be indicted of any such Treasons or c. he shall haue his triall by his Péeres B If any subiect of this Realme being beyond the sea doth practise with the Prince or Gouernour of another countrey to inuade this Realme of England with a great power and in his practise doth declare by what meanes how and in what place the same may be done 13. El. Dyer 298. and though there be no such inuasion yet this practise is high Treason Treason practised beyond the sea for an inuasion with power may tend to the destruction or great perill of the person of the King And this offence shall bée tryed according to the foresaid Statute of 35. H. 8. which Statute doth remaine in force and is not repealed by the before rehearsed Statute of 1. 2. Ph. Ma. 10. Indictment in the County of Lancaster of a forraine 12 For the conseruation tranquillity and peace of the Kings liege people as well within the County Palantine of Lancaster as of other his liege people out of the said County within the Realme of England by a statute made Anno 33. H. 6. it was established St. 33. H. 6. 2 That euery Indictment to be taken before any of the Kings Iustices in the County Palantine of Lancaster or before any Shirife in his Turne in the said County whereby any person or persons be supposed by the same Indictment to be or to haue béene inhabiting or conuersant out of the said Countie and within any other Countie within England shall be taken by verdict of twelue men whereof euery of them or some other to their vse shall haue Lands and Tenements to the yearely value of an hundred shillings and no proces shall be made out of such Indictment before it be duly examined before the Iustices within the sayd County whether the said Indictors and euery of them at the time of such Indictment taken had lands and tenemēts within the said County of Lancaster to the yearely value of an hundred shillings aboue all charges And if it be found that euery of the said indictors at the time of the said Indictment taken had not lands c. to the said yearely value of 100. shillings then the Indictment as to such persons so indicted supposed by the said Indictment to be inhabiting or conuersant out of the said County of Lancaster shal be void Indictment in a forraine County of a Lancashire man 13 And by the same statute of Ann̄ 33. H. 6. it was likewise enacted St. 33. H. 6. 2 That euery Indictment from henceforth to be taken within any County of the said Realme and out of the said County of Lancaster before any Iustice or the shirife in his Turne whereby any person or persons supposed by the same indictment to be or to haue bin conuersant or inhabiting within the said county of Lancaster and without such county where such indictment shall happen to be taken shal be taken by verdict of twelue men whereof euery of thē or some other person or persons to their owne vses shall haue lands and tenements to the value of 100. shillings And that no proces be made out of any such indictments before it be duly examined and inquired before the K. Iustices hauing power to award any proces vpon such indictments whether the said indictors and euery of them at the time of such indictments taken or any other person or persons to their vse had any Lands or Tenements to the yearely value of an hundred shillings within the same Countie aboue all charges where such Indictments happen to be taken And if it be found before the King or any of his Iustices that the said Indictors or any of them had not at the time of such Indictment taken nor that none other to their vse had Lands and Tenements to the yearely value of an hundred shillings that then the said Indictment as to any such person or persons supposed by the said Indictment to be or to haue bin inhabitants or conuersant within the said County of Lancaster shal be void and of none effect 14 Though by the rules of the common Law euery offendor shall be tried in that County wherein he is indicted and he shall be both
be passed And if the same Felons Murderers and Accessories or any of them so arraigned be acquited or the principall of the sayd felonie or any of them be attainted the wife or next heire to him so slaine as case shall require may take their Appeale of the same death and murder within the yeare and day after the same felonie and murder done against the said person so arraigned and acquit and all other their accessories or against the accessories of the sayd principall or any of them so attainted or against the sayd principall so attainted if they be then liuing and the benefit of the Clergie thereof before not had And the appellant shall haue such aduantages as if the sayd acquitall and attainder had not béene the acquitall or attainder notwithstanding The wife or heire of the person so slaine or murdered as case shall require may commence their Appeale in proper person at any time within the yeare after the felonie done before the Sherif and Coroners of the Countie where the sayd felony and murder was done or before the King in his Bench or Iustices of gaole deliuerie And though that by force of the sayd statute of 3. H. 7. at another time acquited is no plea in an Appeale of death at this day Another time acquit no plea in Appeale but in Indictment yet in an indictment of death it is a good plea to plead that he was at another time acquited in an Appeale brought of the same parties death S. Appeales 93. 48 And so it appeareth that the before rehearsed enormities that were at the common law and some others touching the indicting and arraigning of murderers and manquellers be remedied by the foresaid statute of 3. H. 7. but in other Appeales the rules of the common law doe continue in force For if a man be indicted of robberie and hee that was robbed hath an Appeale depending of the same robberie No indictmēt of robbery vntil the Appeal be tryed against the partie indicted in which Appeale he hath procéeded so farre that the Iust may perceiue that it is of the same robbery they ought to surcease to try the Appellée vpon the indictment 31. H. 6. 11 vntill the plaintife hath made his declaration For in an Appeale by writ the robbery cannot be certainly known vntil he hath made his declaration though it be otherwise in an Appeale commenced by bill 49 Though at another time conuicted or attainted of the same felony Another time conuict of the same felonie was and is a good plea for him that is the second time or more often indicted and arraigned againe vpon the same felony yet by the common law if one had béen indicted and arraigned of felonie and deliuered to the Ordinarie as a Clerke conuict and before he had made his purgation of the same felony he had broken the Ordinaries prison and escaped he might haue bin another time arraigned vpon the same indictment And it was no plea for him to plead Fitz. Cor. 232. that hee was another time conuict of the same felony and deliuered to the Ordinarie or that he was a Clerke and could not answer without his Ordinarie because hée remained vnpurged of the felonie and did loose the benefit of his Clergie by the breaking of prison And yet at that time if hee had not broken the Ordinaries prison but departed by his licence then at another time conuict shold haue bin a good plea for him vpon his second arraignmēt But now sithence by the stat of an 18. El. St. 18. El. 6. euery person which shal be admitted to haue the benefit of his clergie shal not therupō be deliuered to the Ordinarie as hath bin accustomed but after such clergie allowed and burning in the hand shal forthwith be enlarged and deliuered out of prison by the Iust before whō such clergy shal be granted Therefore at this day if one bee conuicted of felonie and hath the benefit of his Clergie Co. li. 4. 40. 45. and is burned in the hand if after in any case he shall be indicted and arraigned of the same felonie it shal be a good plea for him to plead that hée was another time conuict of the same felonie because the life of a man shall not be twice put in ieopardie for one offence yea though he shall breake the prison and depart from thence within that time after his conuiction which the Iustices shall thinke conuenient to detaine him in prison for his further correction for now he is not in prison for felonie but for correction 50 It is a good plea for him that is arraigned of felonie to plead that he is attainted of felonie Another time attainted of felonie and to demand iudgement if during this attainder he shal be put to answer to that felony whereof he is attainted or to any other felonie for if he should be put to answer no more could be recouered of him than is recouered 28. E. 3. 90 neither can he forf more than he hath forfeited hauing forfeited life lands goods and all that he hath and therefore it should bee to no purpose to trouble him any more But it is otherwise where it is to any end or purpose to put him to answer and plead againe to a new indictment as in some speciall cases it may be done As a man attainted of felony hath also committed treason at the time of the felonie committed in this case he shal answer to the treason for the K. aduantage 1. H. 6. 5. notwithstanding his attainder of felony before because if he be attainted of treason the king shall haue the escheat of his lands of whomsoeuer they be holden but if the treason were committed after the felony or at the least after the attainder of felony then it were otherwise for then the title which was vested in the chiefe Lord of whom his lands were holden 4. E. 4. 11. cannot be deuested by a matter accrued ex post facto And also where diuers men haue seuerall Appeals of robbery against one man though he be attainted at the suit of one of them yet to the intent that euerie of them may recouer his goods which were robbed and taken from him vpon his fresh suit hée shal be againe arraigned at euery of their suits And it is no plea for him in this case to plead that he was another time attainted of felony 51 In all cases where the defendant would discharge himselfe by pleading that he was attainted of another felony thē this whereof he is now arraigned The K. pard◠obiected against another time attainted it may be replied for the party or the king that after the same attainder the K. did pardon him that felony whereof he saith he was attainted and his attainder thereof 6. H. 4. 6. whereby he was restored to the law and so he ought to answer to all other felonies notwithstanding they were committed before this
any thing to say now that is true séeing he would not speake it at that time when hée might haue béene heard But in the foresaid cases if the approuer can shew any sufficient matter which doth restore him to the lawe 21. Ed. 3. 17 as the Kings pardon and such like then the appellée shall answer to the approuer S. Appeales 92. An Appellée cannot appeale others 11 If he which is appealed by an approuer will confesse the appeale and pray that he may become an approuer and appeale others hée shall not bée receiued thereunto for seuerall causes one is for that he is appealed of felonie and not indicted of felonie and in an appeale there lieth no approuement another cause is for that if his approuement should be of the same felonie he should thereby falsifie the appeale of the first approuer in that he did not at the first discouer all his companions being sworne thereunto And a third cause is Fi. Cor. 113 for then by that meanes approuements would be infinite and also the appellée is in a sort out of the lawe for that the approuer hath deraigned an appeale against him 21. Ed 3. 18. Fi. Cor. 231 12 It is a good exception for the appellée to obiect against the approuer Approuer not in prison for felony or at libertie that the approuer is not in prison for any felonie or treason but for debt or trespasse or some other offence or to say that the approuer is not in prison but at large for he cannot be an approuer vnlesse he be first indicted of felonie and doth confesse it before a Iudge and then become an approuer Bracton 13 It is a good plea as some doe affirme for him that is appealed The appelleé an honest and credible man to say that he is a lawfull man and in the franke pledge and in the Assise of our soueraigne Lord the King and that hée hath a Lord which will be his pledge And if that be trauersed and found for the appellée he shall be discharged thereby Sed quaere Fi. Cor. 322 14 In an appeale by an approuer the appellée may pleade General plees in Barre of the appeale that the same approuer is a priest not of perfect memorie deafe dumbe a lazar a naturall foole a woman a man aboue thréescore and tenne yéeres of age or within age or that he is mayhemed by some other and not by the appellée for that in these cases the approuer cannot deraigne or wage battell with him S. Appeales 93. 15 In diuers cases if the appellant doe surcease to prosecute his appeale Where the King may pursue an appeale begunne the king may pursue it for the appellant may by seuerall meanes leaue off to prosecute his appeale 3. H. 6. 50. as by Non-suite Release Retraxit or a woman by taking a husband during the suite of appeale for in all these Cases the appeale doth cease by the act of the partie therefore in which case soeuer that Cesser is after declaration in the appeale the Defendant shall not goe at libertie but shall be arraigned at the Kings suite vpon the same declaration for that it doth appeare there is a felony committed and the same is not yet tried And the same Lawe is if the appeale doe cease by the act of God as if the appellant doe die 21. Ed. 3. 18 Fit Cor. 369 Or if it cease by the act of the Lawe as if the appellant after his appeale made be hanged Or if the appellant doe take the priuiledge of his Cleargie for an appeale by an approuer is a great presumption against the Defendant that he is guilty of the offence whereof he is appealed and that is for the great punishment which the appellant is to suffer if he at any time doe faile of his appeale viz. death And an appeale doth worke a greater presumption against the Defendant than an Indictment doth 4. Ed. 4. 10 for that it is vsed if a man be appealed and indicted of one offence and the Plaintife in the appeale after declaration is Non-suite the Defendant shall be arraigned at the Kings sute vpon the declaration in the appeale and not vpon the Indictment But this presumption riseth where the appellant hath appeared to his suite 8. Ed. 4 25. and declared for vntill that time it carieth not with it any presumption Because any man may sue a Writte of appeale out of the Chauncerie in a strangers name and finde pledges to prosecute it and cause the Writ to be deliuered to the Shirife of Record that stranger not knowing thereof in which Case it shall not be saide that strangers suite vntill he hath appeared in proper person thereunto and declared 7. H. 7. 5. Fi. Cor. 384 for vntill that time Non-suite in the appeale is not peremptorie to the stranger Neither shall the Defendant be arraigned at the Kings suite by this Non-suite any more than if hée had not béene Non-suite But in that Case if a stranger doe bring a new appeale against the Defendant the Defendant shall aunswere him as hée should haue done if no such Non-suite had béene But the Lawe is otherwise in an appeale commenced by Bill for that suite of necessitie must be made by the party himselfe in his owne proper person 22. As p. 97 and his apparance must be recorded by the Shirife and Coroners and the yéere day and place expressed where and when the felonie was committed and who were principalles in the same felonie and who were accessories And so in an appeale by Writ the Plaintifes Non-suite before declaration doth giue the King no aduantage against the Defendant but in an appeale commenced by Bill before the Shirife and Coroners or in an appeale by an approuer it is otherwise for in such an appeale all the certaintie of the felonie is declared and comprised 2 3. P. M. Dy 121. In an appeale of murder against thrée if one of them pleade Not guiltie ready to defend himselfe by his body and so wageth battaile vpon which plea the Plaintife demurreth in lawe which demurrer is adiudged against him in this Case the same appellée shall be arraigned at the Kings suite for that the felonie is not yet tried nor he acquit thereof And if one of the other appellées doe pleade Not guiltie and that the Plaintife doth demurre thereupon and it is adiudged a good plea and the same appellée is acquit against the appellant yet he shall be arraigned at the Kings suite of the same murder S. Appeales 96. The Appellants release to the Appellée 16 If the Defendant in an appeale do pleade a Release inrolled Fit Cor. 12 and of record made vnto him by the appellant before the appeale commenced he shall be presently deliuered But if it be made after the appeale commenced the the Court will intend that it is of purpose to defraud the King and therefore in
an appeale or an indictment then the matter commeth to be tried betwéene the King and him or the appellant and him whether he be guiltie Triall of the plea Not guiltie or not If it be in an appeale it may be tried by Verdict or by Battell as the appellée will sauing in certaine Cases But vpon an Indictment there is no triall by battell nor otherwise sauing onely by verdict In an Indictment of treason or felonie against one of the Péeres of the Realme the triall is by his Péeres which manner of triall in an appeale is not allowable The arraignment of a Peere of the Realme 2 When a Péere of the Realme 1. H. 4. 1. 13. H. 8. 13. 10 Ed. 4. 6. and Lord of the parliament is to be arraigned vpon any treason or felonie whereof he is indicted and whereunto he hath pleaded Not guiltie the King by his Letters patents shall assigne some great and sage Lord of the parliament to be high Steward of England for the day of his arraignement who before the same day shall make a precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him eightéene or twentie Lords of the parliament vpon the same day And then at the day appointed when the high Steward shall be set vnder the cloth of Estate vpon the arraignement of the prisoner and hath caused his Commission to be read the same Serieant shall returne his precept and thereupon the Lords shall be called and when they haue appeared and be set in their places the Constable of the Tower shall be called to bring his prisoner into the Court who then shall bring the prisoner to the Barre And then the high Steward shall declare vnto the prisoner the cause why the King hath assembled thither those Lords and him and perswade him to answer without feare And then hée shall cause the Clerke of the Crowne to reade his Indictment vnto him and to aske him if hée be guiltie or not whereunto when hée hath aunswered Not guiltie the Clerke of the Crowne shall aske him how he will be tried and then he will say by God by his Péeres And then the K. Serieants and Atturney will giue Euidence against him whereunto when the prisoner hath made answer the Constable shall be commaunded to retire the prisoner from the Barre to some other place while the Lords doe secretly conferre together in the Court and then the Lords shall rise out of their places and consult among themselues and what they affirme shall be done vpon their honours without any othe to be ministred vnto them And when they all or the greatest part of them be agréed they shall returne to their places and sit downe And then the high Steward shall aske of the yongest Lord by himselfe if he that is arraigned be guilty or not of the offence whereof he is arraigned and then of the yongest next him and so of the residue one by one vntill he hath asked them all and euery Lord shall answer by himselfe And then the high Steward shall send for the prisoner againe who shall be led to the Barre to whom the high Steward shal reherse the verdict of the Péeres and giue iudgement accordingly But if an Earle the sonne and heire apparant of a Duke or a Lord the sonne and heire apparant of a Marques or Earle 38. H. 8. Br. Treason 2 be indicted of high treason he shall be tried by Knights and Gentlemen and not by Péeres for he is not an Earle by Creation but by Natiuitie But if he be of dignity by creation and a Lord of the Parliament hee shall be tried by his Peeres 3 The foresaid manner of Triall séemeth to be appointed by the Statute of Magna Charta St. 9. H. 3. 29. which hath ordained That no frée man shall be taken or imprisoned or disseised of his fréehold liberties or frée customes nor shall be outlawed banished or by any meanes brought to destruction Neither wée will passe or sit in iudgement vpon him but by the lawfull iudgement of his Péeres or by the lawe of the Realme We will not sell deny or deferre iustice or right to any It appeareth by this statute of Magna Charta By whom Péeres appealed shal be tried that a Péere of the Realme shall be tried by his Péeres onely in case where he is indicted at the Kings suite of treason or felony for the words of the statute be we will not passe or sit in iudgement vpon him but by his Péeres 10. Ed. 4. 6 But if an appeale of murder or other felony be sued by any common person against a Péere of the Realme he shall be tried by common persons and not by his Péeres And because there was no mention made in the said statute of Magna Charta how women Ladies of great estate because of their husbands Péeres of the Realme married or sole viz. Duchesses Countesses or Baronesses should be put to answer nor before what Iudges they should be iudged vpon indictments of treasons or felonies by them committed and for that the saide statute of Magna Charta doth onely make mention of a man Therefore by a statute made Anno 20. H. 6. 9. St. 20. H. 6. 9 it was enacted By whom ladies shal be tried That such Ladies of great estate viz. Duchesses Countesses and Baronesses which shall be indicted of any treason or felony by them committed whether they be married or sole shall be brought to their answer and put to answer and iudged before such Iudges and Péeres of the realme as Péeres of the realme should be if they were indicted or impeached of such treasons or felonies committed 4 None of the foresaid statutes haue béene put in practise to extend to Bishops Bishops though they enioy the name of Lords of the parliament for they haue that name of Bishops in respect of their office or function and not in respect of their nobilitie neither haue they places in parliament in respect of their nobilitie but in regard of their possessions being ancient Baronies annexed to their dignities If a Péere of the Realme be indicted of treason or felonie he may be thereupon arraigned in parliament Arraignment in parliament if it shall please the King 10. E. 4. 6 and then the Lords spirituall shall make one Procurator for them for that by the Cannon lawe they cannot condemne any man to death A Bishop was arraigned in the Kings Bench and not by any Lords of parliament for that hée came to the parliament by summons and departed without licence 3. E. 3. 19 and because this was an offence as well to the King as to the Péeres and the King may comemnce a suite where he please for a trespas done to him therefore this was accepted a lawfull indictment though the complaint was made in an inferiour Court for an offence done in an higher
Trial of treason committed in Ireland 5 If an Earle 19. 20. El. Dy. fo 360 or a Lord of Ireland doth commit treason in Ireland by open rebellion he cannot be arraigned and put to his triall therefore in England for he can neither be tried by his Péeres nor by any Iurie of twelue men in England because he is not a subiect of England but of Ireland and therefore his triall shall be in Ireland And the custome there is to attaint a Péere by parliament and not by his Péeres Misprision 6 This order of triall by the Péeres is likewise to be obserued where one of the Péeres of this realme is indicted but of misprision of treason or felonie in which triall the same forme shall be kept as it shall be where any Péere is indicted of treason or felonie and arraigned thereupon And the number of Péeres which shall be to trie a Péere indicted of treason The number of Péeres at the Triall felonie or misprision shall be twelue at the least and more if it shall please the King Triall by Peeres in all cases of treason and felony 7 In euery case where any offence or fact is of new made treason by any Statute the Lords of the Parliament and Péeres of the Realme offending therein shall haue their triall by their Péeres though the Statute doth not prouide for it by speciall words as other inferiour persons offending in the like crimes shal haue their triall by the verdict of twelue men their péeres viz. their equals so that the words which be commonly put into new Statutes that Péeres of the Realme offending therein shal be tried by their Péeres bée not of necessity inserted But because the course of the common law is in some sort altered by the statute of an̄ 33. H. 8. 23. St. 33. H. 8 23. authorizing the King to graunt a commission vnto such persons and into such shires as he will for the triall of any murder committed in any other countie or place of the Realme whatsoeuer And also by the Statute of 35. H. 8. 2. St. 35. H. 8. 2 giuing the King like power to direct a commission into any countie of this Realme and to any persons that he will for the triall of treasons and misprisions of treasons committed out of the Realme yet for that the triall in both those cases might be made by such persons as the common law hath appointed viz. of péeres by their péeres it is so prouided and ordained by the special words of both those statutes ⧠Triall by the Countrie TRiall by the Countrie Triall by the Country is a triall by twelue common persons of that vicenage or neighborhoode where the treason or felony was committed which kinde of triall séemeth also to be warranted and approued though not at the first begunne by the before rehearsed Statute of Magna Charta St. 9. H. 3. 29 which saith Neither shall any passe or sit in iudgement vpon him but by the lawfull iudgement of his Péeres or by the Law of the realme And thereupon it is accordingly vsed that Knights Esquiers and Gentlemen of great estate being indited of treason or felony be tried by their péeres viz. by their equalls in degrée being also Knights Esquiers Gentlemen or Merchants of good estate 1. M. Dy. 99 and inferiour persons be likewise tried by their péeres or equalls viz. by men of their owne degrée or most commonly by men of better or greater estate or degrée 2 If he that is charged to be an offendour in petit treason murder or felonie doe pleade to an Indictment found against him matter triable by an other Countie than the Countie which did indict him although by the common lawe he ought to haue béene tried in that forraine countie yet now by the Statute of Anno 22. H. 8. St. 22. H. 8. 14. 32. H. 8. 3 he shall be tried by the countie which did indict him the words of which Statute be these viz. For more spéedie trialles of murders and felonies Be it enacted c. That all manner of forraine pleas Triall of forraine pleas triable by the Countrie hereafter to be pleaded by any person or persons arraigned vpon any Indictment for any petit treason murder or felonie shal be forthwith tried before the same Iustices before whom such persons shall be arraigned and by the same Iurors of the same countie that shall trie the petit treason murder or felonie whereof he shall so be arraigned without any further respite or delay in whatsoeuer countie or counties place or places of this Realme the matter of the same pleas be supposed or alleadged This statute maketh no mētion of high treason therfore forrain pleas in high treason remaine to be tried in those forren counties as they were at the cōmon lawe And so be they in an appeale Appeale for this statute extendeth to Indictments onely But if A. doe strike B. vpon the Sea and there giue him a mortall wound whereof B. dieth in the Countie of L. in this case A. Coke 2.93 shall be discharged of the death of B. for they of the Countie of L. cannot inquire of the death without inquirie of the wound A man stricken vpon the Sea dieth vpon the Land and of the wound they cannot inquire because it was giuen vpon the Sea and not in any Countie or place in this Realme And they of the Admiralles Iurisdiction can not inquire as of a felonie of the wound without inquiring of the death and of the death they can not inquire because it was within the body of a Countie where by the statute of 13. R. 2. 15. R. 2. St. 13. R. 2. 5 St. 15. R. 2. 3. they are forbidden to meddle 3 The processe which shal be awarded against the Iury The Processe against the Iurie to trie an issue in an appeale is commonly a Venire facias Habeas corpora and Distringas as it is vsed in other actions sauing in the Kings Bench 27. H. 6. 10 for by the custome of that Court the first processe against the Iurie is an Habeas corpora and after a Distresse without suing a Venire facias And some say that in the K. Bench they vse to haue no Habeas corpora at the first day but a Venire facias and then a Distresse leauing out the Habeas corpora The processe which is to be awarded against the Iury Processe in an Appeale not in an In is for the most part intended in an appeale for in an Indictment though they may graunt processe against the Iury yet it is not vsed by the Iustices of Gaole deliuerie Fit Enquest 55 because they doe take the pannell which is returned by the Shirife without making any precept vnto him for that they giue a generall commandement to the Shirife before their comming to cause the Countrie to appeare before them But so do not Iustices of Oyer
linguae Therefore the more to encourage Marchants to continue here and also others to come with their marchandizes into this Realme by a Statute made Anno 8. H. 6. St. 8. H. 6. 29 it was declared That the same Statute made Anno 2. H. 5. should be no wayes preiudiciall to the foresaid first statute made 28. Edw. 3. nor was not meant that it should extend to any but onely to Enquests to be taken betwéene Denizon and Denizon and not to the other Enquests or proofes mentioned in the sayd Statute of 28. Ed. 3. viz. to Enquests to be taken betwéene Denizons and Aliens And that the first statute of 28. Ed. 3. should bée effectuall stand in force and be put in execution according to the forme thereof notwithstanding the later Statute of 2. H. 5. and notwithstanding that Aliens haue not lands or tenements of the yearely value of fortie shillings according to the purport of the sayd later statute of 2. H. 5. And so by this statute want of sufficient fréehold is the cause of Challenge to Aliens which bée impanelled with English men But yet it séemeth to be a cause to challenge English men who bée impanelled with Aliens for the perclose of this Statute doth wholly relye vpon Aliens This last rehearsed Statute of 8. H. 6. willeth That the intent of the other Statute of 2. H. 5. should bée preferred before the words thereof and so the Iudges of the law haue expounded it 9. H. 6. 27. for they haue allowed a Iuror which had not fortie shillings of fréehold to bée sworne in an Enquest if others had so much land to his vse And where the words of the statute be If he hath not lands or tenements of the yearely value of fortie shillings and doth not expresse in what Countie yet they doe take it by intendment that the lands must bée in the Countie where the issue is to bée tryed 9. H. 7. 1. M. 12. H. 7. 4 H. 32. H. 8. 20. P. 21. H. 6. 39. And for that the words be in the Present tense viz. if hée hath not they doe expound it that the Iuror must haue so much land in the same Countie at that time when he is sworne for though he had so much land when he was impanelled yet if he hath aliened it or that the same was euicted from him by an auncient title before the time hee was sworne the challenge of insufficiencie shall bée allowed vnto the prisoner And whereas the foresayd statute of 2. H. 5. hath ordayned That no person shall be admitted to passe in any Enquest vpon the tryal of the death of a man if hée hath not lands of the yearely value of fortie shillings this is not meant of the tryall of the death of a man which is slaine but of the tryall of the death of a man which standeth at the barre vpon the question of his life or death And then will this challenge serue for want of sufficient lands vpon the triall of all maner of felonies and treasons By the Statute of 33. H. 8. it is enacted That he which is arraigned of treason St. 33. H. 8. 12. murder or manslaughter committed within the Verge shall haue no maner of challenge to any of the Iury malice only excepted and so shall haue no challenge for want of sufficient fréehold And in like sort it is ordained by the Statute of Anno 3. H. 7. St. 3. H. 7. 14 That hee which being the Kings seruant sworne and whose name is in the checke Roll of the Kings houshold vnder the degrée of a Lord which is arraigned for conspiring with any other to destroy any Lord of this Realme or any other sworne to the Kings Councell Or the Steward Treasurer or Controller of the Kings house shall not haue any challenge but for mallice and so shall haue no challenge for want of sufficient fréehold By a Statute made Anno 33. H. 8. St. 33. H. 8. 13. it was enacted That if a Commission of Oyer and Determiner bée directed into any County for the tryall of any person which doth confesse any Murther to thrée of the Kings Councell or is vehemently susspected thereof no challenge for the Hundred or Shire shall bée allowed vnto him But the challenge of any Iuror for lacke of Fréehold of the yearely value of forty shillings shall bée allowed as hath béene accustomed And because Trials in Murthers and Felonies in Cities Boroughes and Townes corporat within this Realme hauing authoritie in the deliuerance of such offendors were oftentimes deferred and delayed by reason of challenge made by such offendors of Iurors for lacke of sufficiency of fréehold to the great hinderance of iustice for the redresse thereof by a statute made Anno 23. H. 8. St. 23. H. 8. 13. it was enacted That euery person being the kings naturall subiect borne which either by the name of a citizen or a fréeman or any other name doth enioy the liberties of any City Borough or Town◠corporat where he dwelleth being worth in mooueable goods to the cleare value of forty pounds shall bée admitted in tryall of Murthers and Felonies in euery Sessions and Gaoles of deliuery kept in and for the liberty of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this act extendeth not to any Knight or Esquire dwelling abiding or resorting to any such City Borough or Towne corporat any thing in the same act to the contrary hereof notwithstanding 5 Vpon the arraignement of a prisoner the king by his prerogatiue might haue challenged euery of the Iurors peremptorily by the common law without shewing of any cause thereof and by that challenge the same Iuror should haue béene presently drawne But this was a great mischiefe and offence to the subiect who by that meanes was infinitely delayed and had often put out of the Iury the most discréet and indifferent men which were returned for his tryall For the remedy whereof by a Statute intituled Ordinatio de inquisitionibus Challenge for the king made Anno 33. Edw. 1. St. 33. E. 1. it was established That touching Inquisitions to bée made before any Iustices wherein the king is any way a party although it bée alleadged by those which doe prosecute for the king that the Iurors of those Inquisitions or any of them bée not good for the king those Inquisitions shall not therefore remaine to bée taken But if they which doe pursue for the king will challenge any of those Iurors they shall shew a certaine cause of their challenge and the truth of that challenge whether it bée true or not shal be inquired of according to the Iustices discretion But he that doth prosecute the sute for the king néede not presently shew the cause vpon his challenge as a common person should do if he were party against the king for he may shew that cause when he hath perused the whole pannell But if he that is arraigned
enquest of twelue women before the Iustices 22. As p. 71 25. Ed. 3. 42. 12. As p. 11 23. As p. 2. Fitz. Cor. 240. 253. who being then sworne to examine and trie the trueth shall take that woman into a chamber and search and trie whether she be quicke with childe or not and if she be found to be quicke with childe then execution of her shall be staied vntill she shall be deliuered But if shée be not quicke with child she shal be hanged presently for it will not auaile her to be yong with childe And yet whether shée be with child or not Iudgement shall not be delayed but shal be presently giuen against her that she shal be hanged but only the execution of that iudgement shal be stayed If after she is repried and deliuered of her childe and before the next Gaole deliuerie she be with child againe though she be quicke with childe execution shall not be staied but she shal be put to execution presently And yet in that case the truth of the matter being inquired of and found the shirife marshall or gaoler which had the custodie of her shal be fined for kéeping her so slackly that shée had the company of a man 13 If a man attainted of felonie be adiudged to be hanged Fi. Cor. 335 and the sherife doth carrie him to the place of execution and doth hang him and he breaketh the Rope and falleth downe before he be dead A man hanged falleth downe before he be dead In this case the sherife must take him and hang him againe for his iudgement is that he shal be carried to the place of execution and there be hanged vntill he be dead And so vntill he be dead the iudgement is not fully executed ⧠Forfeiture AFter an offendor is attainted of treason or felonie A felon shal forfeit lands and goods and hath had iudgement of death hée shall presently thereby forfeit his goods and also his lands sauing in certaine cases hereafter expressed though it be not mentioned in the iudgement And notwithstanding there is a difference betwéene treason and felonie concerning the forfeiture of lands yet touching the forfeiture of goodes they be all one for they shall be forfeited to the King St. 17. Ed. 2 16 as it appeareth by the Statute intituled Prerogatiua Regis which hath ordained That the King shall haue all the goodes of felons which be condemned and which be fugitiue wheresoeuer they be found and if they haue any fréeholde it shall be forthwith seised into the Kings hands and the King shall haue the profites thereof by the space of a yéere and a day and the land shall be wasted and destroyed in the houses woodes and gardeins and in all things belonging to the same except men of certaine priuiledged places And after the King hath had the yeare day and waste the land shall be restored to the chiefe Lord of the same Fée vnlesse that before hée redéeme the same yéere day and waste of the King by payment of a fine But there is a custome in the countie of Gloucester that after a yeare and day the lands and tenements of felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue descended if the felonie had not béene committed And in Kent in Gauelkinde the Father to the Bough the Sonne to the Plough there all the heires males shall diuide their inheritaunce and likewise women but women shall not make partition with men And a woman after the death of her husband shall be endowed of the moitie And if a woman doe committe fornication in her widdowhoode or take any husband she shall loose her Dower 22. As p. 96 Fit forfeiture 35. 2 A man being indicted before the Coroner of the death of an other man Forfeiture of goods and if it be further found by the same indictment that hée did flie for the said felonie although after he be acquitte of the same felonie 7. Eli. 35. Dy. 238. Co. l. 5. 109 and notwithstanding that the Enquest which did acquitte him doe say that he did not flie for the felonie yet his goodes shall be forfeited to the King For the King shal take holde of that Record which is most for his benefit and that is the Coroners Record And in like sort if one that is indicted of felonie Fitz. forf 32. Fi. Cor. 290 344. is acquitte thereof by verdict Flying for felonie if the Iury which did acquitte him will say that he did flie for the felonie he shall forfeit his goodes which he had at the time of the verdict giuen which being an auncient lawe of this Realme is grounded vpon this reason that notwithstanding his acquitall of the felonie yet he is to be suspected of the felonie for the vehement presumption which is risen of him as well in respect of his flying away as by the indictment And though the Enquest which did finde that he fled for the felonie be as touching that part of their verdict but an Enquest of office yet it is not trauersable because it is onely touching goodes for the which goodes no trauerse against the King is allowed by the Lawe for the Lawe doth accompt goodes inter minima de minimis non curat lex And though goods be in comparison of mans life or his lands in the eie of the Lawe called and accompted Minima yet they be not of so small value or so little to be regarded but the Iudge or the Coroner ought with all due circumspection foresée that the Iurie be not vpon ignoraunce or small euidence seduced to finde an vntrueth to the vtter vndooing of the partie indicted or accused Fi. Cor. 308 338. And in like sort if a man be indicted and arraigned of felonie and it is found by the Enquest or the Coroners Roll that hée fledde for the felonie he shall forfeit his goodes though hée hath the Kings pardon of the felonie for the charter of pardon doth containe the presumption of him that he is guiltie of the felonie An accessorie fled for the felonie 3 If a man be indited before the Coroner as accessorie to the death of an other man and it be found that he fled for the felonie 4. H. 7. 18 in this Case hée shall forfeit his goodes if hée were accessorie before the felonie committed But if it be found before the Coroner that hée was accessorie to the felonie after the offence committed and that he fled for the felonie hée shall not forfeit his goodes for the Coroner hath no authoritie to meddle with any that was accessorie after the homicide committed but onely with such by whose meanes the dead man was slaine or who were the causes of his death which the accessorie after the offence committed could not be And therefore when hée indicted one for receiuing of a murderer and that he fled this inditement of the receipt of the
to him and so no other person is intituled to haue those goods the King shall haue them as confiscat according to the old text Quod non capit Christus capit fiscus And the appellant shal be thus punished by the losse of his goods for his negligence attenuating concealing of the robbers offence Confiscation by a false appeale 20 If a man bring an Appeale of Robberie against another which tooke the Appellants goods lawfully Fitz. Cor. 367. and not feloniously viz. found them in the high way it is so found by verdict in this case though the appellée hath no cause to detaine them against the appellant for that they were his owne goods yet the plaintife shall loose them for his false appeale and they shall bee confiscat to the King and also the appellant shall bée committed to prison for charging the defendant with robberie whom he did know came lawfully by the goods Co. li. 5. 110 and so for malitious séeking of a mans bloud without cause and the defendant shal be discharged 21 There is another kind of forfeiture of felons goods to the King which is called a waif A waife and that is when a felon vpon huy and cry or other pursuit after him or for feare to bee taken er otherwise to ease himselfe of carriage Co. li. 5. 109 doth without Huy and crye wayue cast away or goe from the goods that hée did steals and hath in his possession or some part thereof and doth flye away whereupon the Kings Officers or some other in the Kings right doth seise those goods Seising of a waife In this case the goods so seised be called a waife and the King shall retaine them to his proper vse if the owner of them doth not make fresh suit after the felon to attaint him for those goods And if the owner doe make fresh suit after the felon hée shall haue his goods againe notwithstanding the waiuing and seising of them And this forfeiture of goods by waife is a penaltie which the law imposeth vpon the owner of those goods for default of fresh suit against the felon and for omitting his duetie in pursuing and apprehending of the felon being a pernitious and corrupt member of the Commonwealth St. 21. H. 8. 11. And by the Statute of 21. H. 8. the Iustices before whom any felon or felons shal be found guiltie or otherwise attainted by reason of euidence giuen by the partie robbed or owner of any money goods or cattels robbed or by any other by his procurement haue power to award from time to time writs of Restitution for the said money goods or cattels as though any such Felon or Felons were attainted at the suit of the party in Appeale But if a felon doe steale goods Co. li. 5. 109 and carrie them into a Mannor and there leaue them or leaue them in his owne house or in the house of any other or in the custodie of any other or hide them in the ground or in any secret place and after doth flie these goods shall not be adiudged in law to be waiued nor shall bée forfeited for if the felon hath not the goods with him when he doth flie or doth waiue them for feare to be taken they shall not be accounted waiued or forfeited but the owner may take them againe without fresh suit for that there is no default in him 22 If a felon do steale goods and after doth waiue them The owner seiseth goods waiued the owner of them may reseise the same goods and carrie them away twentie yeres after the waiuing of them if in the meane time no Officer of the Kings nor of any Lord of a libertie 21. Ed. 4. 16. hath seised them before the owner But if any Officer of the Kings or of any Lord of a Franchise hath seised them before then the owner must sue an Appeale against the felon and so he may haue his goods againe if hée hath made fresh suit or else the owner must procure the felon to be indicted arraigned and found guiltie or otherwise to be attainted by euidence giuen by himselfe or by some other by his procurement and by that meanes obtaine a writ of Restitution to be awarded by the Iustices before whom the sayd felon shall be arraigned according to the foresaid statute of 21. H. 8. 11. And the like law is if a felon do steale goods and doth not waiue them nor any Huy and crie is made vpon him but one in the Kings right doth take the goods from the felon vpon suspition that he hath stolne them yet the owner vpon fresh suit shall haue restitution of them againe for it may be that the owner had not intelligence of the stealing of his goods a long time after they were stolne and then could not make fresh suit nor leuie huy and crie 23 There can be no waife but of goods stolne sauing in certaine cases for if one do take goods as a trespassor and doth goe from them No waife but of stoln goods no man can seise them as a waife P. 13. E. 4. 5 And therefore in an action of Trespas of goods taken away if the defendant do iustifie for a waife it is a good issue for the plaintife to ioine that the goods were not stolne And if a man do fly for a felonie and leaue his house goods yet those goods shall not be a waife for that they were not stolne And in some speciall case there may be a waife though there be no stealing Waif of goods not stolne as vpon a huy and cry leuied 29. E. 3. 29. a man that hath committed no felony doth leaue his owne goods and doth flie to a church those goods may be seised to the Kings vse for a waife No waife of goods stolne from an Alien 24 If the goods of an Alien which hath the Kings safe conduct both for bodie and goods be stolne from him and by the felon bée after wayued and refused yet those goods cannot bée claimed or seised by the Officers of the King or of any Lord of a Franchise for a waife for when the King hath graunted to the Alien safeconduct both in bodie and goods and this is a couenant betwéene the King and him then if a felon doe steale his goods and after waiue them it is no reason that the Alien should loose them and be put to sue against the felon but he must sue to the King vpon his couenant And therefore the K. cannot haue those goods as waife and by the same reason hee cannot graunt them to another neither can any haue them by prescription Forf of lands 25 As he that is attainted of Treason or Felonie shal loose his goods debts and rights Tenant for yeares so also shall be forfeit his leases for terme of yeares of lands the lands which he holdeth by extent of Statutes Recognisances or Iudgemēts his
leases for the terme of his owne or another persons life of lands T. for life And because tenant in taile is in diuers respects but tenant for the terme of his owne life T. in tayle of his lands intailed therefore if he commit Petit Treason or Felonie he shall forfeit his said intailed lands but for terme of his owne life And he that hath land in another right shal forfeit for high Treason petit Treason Murder or other felony no longer or greater estate than he hath in the same lands as a man seised in the right of his wife of laÌ„ds T. in the right of his wife or church or in the right of his church Fitz. Forf 13. shal forfeit no further estate in the same lands but during his owne estate therein as it doth appeare not onely by the rules of the common lawes but the same is also confirmed by the Statute of 5. Ed. 6. 11. hereafter rehearsed The forf of lands in tayle 26 By the common law Tenant in tayle beeing attainted of high Treason should haue forfeited the lands whereof hée was so seised of an estate in tayle but onely for the terme of his owne life and the same after his death should haue discended to his heire But now by the Statute made Anno 26. H. 8. and Anno 5. Ed. 6. St. 26. H. 8. 16. St. 5. E. 6. 11 it is ordained That euerie offendor and offendors being hereafter lawfully conuict of any manner of high Treason by presentment confession verdict or Proces of Outlawrie according to the due course and custome of the lawes of this Realme shall loose and forfeit to the King his heires and successors all such lands tenements and hereditaments which any such offendor or offendors shal haue of any estate of inheritance in his own right in vse or possession by any right title or meanes within this realme of England or elsewhere within any the Kings dominions at the time of any such Treasons committed or at any time after 16. El. Dyer 332. As if the King giue land to the husband and wife and the heires males of their two bodies lawfully begotten the remainder thereof to the heires males of the body of the husband lawfully begotten reseruing the reuersion to himselfe and the husband and wife haue issue a sonne and the husband committeth high Treason is attainted thereof and executed and this attainder is confirmed by Act of Parliament and all the offendors lands bée giuen to the King Sauing to all Straungers their right other than to the Donor in Tayle and his heirs In this case after the death of the wife the King shall haue the land for that by reason of the fathers attainder of Treason the estate Taile was forfeyted and extinguished by force of the sayd Statutes of Anno 26. H. 8. and Anno 5. Edw. 6. and the bloud corrupt An estate taile forfeited and extinguished and the heirs disabled for that in his lineall conueyance of his discent to the land hée must deriue himselfe heire as well to his father as to his mother Br. Done 61 Co. li. 1. 103 And in like sort if a man seised of lands in fée simple maketh a feoffement thereof to certaine persons to the vse of his wife for the terme of her life the remainder thereof to the vse of the heires of his owne bodie lawfully begotten after the feoffor hath issue a sonne and is attainted of high Treason and executed In this case his sonne shall not inherit this land as heire to his father whose bloud was corrupt by his attainder but the land shall be forfeited to the King by the foresayd Statute of 26. H. 8. And as tenant in taile by committing of high Treason shall by force of the foresayd Statutes of 26. H. 8. 5. Ed. 6. forfeit those lands wherof he hath the possession reuersion or remainder in tayle so shall hée likewise forfeit to the King by committing of high Treason those lands whereunto hée hath but a right in taile Pl. Com. 547. As if the King giue lands to a man Forf of a right in tayle and to the heires males of his bodie lawfully begotten reseruing the reuersion to himselfe and the tenant in tayle hath issue a sonne and dyeth and the sonne doth enter and make a feoffement in fée to a stranger of the same land and then hath issue a sonne and committeth high Treason and is attainted thereof this land shall bée forfeited to the King for by this feoffement made by tenant in tayle to a straunger there passed none other estate from the same tenant in tayle but only an estate for the terme of his owne life and so the tayle and the right of the tayle remained in the tenant in tayle and by his attainder the estate in tayle is extinguished in the Kings reuersion in fée simple And the King shall bee sayd rather to haue this land reuerted vnto him as if all the issue of tenant in tayle were dead than by forfeiture for the words of the Statute of 26. H. 8. be All persons attainted of Treason shall loose and forfeit to the King his heires and successors all lands and tenements which such offendor shall haue of any estate of inheritance at the time of the Treason committed or at any time after Sauing to all others and their heires other than the offendors in Treason their heires and successors all their rights and possessions c. which they had at the day of the Treason committed or after And by these generall words That they shall loose and forfeit all lands and tenements which they haue of any estate of inheritance and by excluding the heire in the Sauing lands tayled shall bée forfeited and the lands in this case cannot be aptly termed to be forfeited to the King and his heires where hée had the fée simple before but are rather to be sayd reuerted to the King the tenant in tayle dying without any issue which by his attainder of Treason and the corruption of his blood Co. li. 7. 33. could inherit this land And if the King by his letters Patents vnder the great Seale doe create an Earle Forf of name or title of dignitie intailed and giue him the title and honour of an Earledome to him and the heires males of his body begotten and the grantée hath issue two sonnes by seuerall women and then dyeth and his eldest sonne doth enioy the same Earledome and after committeth Treason by leuying of warre in the Realme against the King and is attainted thereof and then dyeth without issue of his bodie begotten by this attainder the same shal be forf to the K. and not discend to the brother of the half blood nor to his heirs for this Earldom and name of dignity may be intailed according to the stat of W. 2. St. 13. E. 1. 1 De donis conditionalibê° for that it concerneth land must
be supported and maintained with land to vphold the countenāce charge of the owner thereof And therfore this Earldome being by the K. giuen to the Earle the heires males of his body begotten is an inheritance which may discend from one heire male to an other and then by the speciall words of the before rehearsed Statute of 26. H. 8. and 5. Ed. 6. it shall be forfeited to the King by the said heires attainder of high treason for it was in the same heire an hereditament and whereof he had an estate of inheritance And moreouer when the King at the first did giue to this Earle and the heires males of his body begotten the foresaide great title of honour though there was no condition expressed in the same grant yet there was a secret condition implied therein viz. that the said grauntée and the heires males of his body should be assistant and seruiceable to the King his heires and successors by his Councell in the time of peace and by his force and prowesse in the time of warre Therefore when the heire male of this Earle the first grauntée did take Councell to breake the peace of the King and leuied warres and imployed his force and power against him he first brake the same secret condition which was annexed to his ancestors graunt of the Earledome And so there is reason and cause whie his said title of honour depending vpon the same condition should therewith cease and determine and that the same should returne againe to the Crowne from whence it was deriued The forfeture of lands in fée simple 27 Besides the forfeitures aforesaide 30. H. 6. 5. euery person that is attainted of high treason petit treason or felonie shall also forfeit his lands in fée simple which he hath in his owne right in vse or possession sauing that the attainder of treason by force of the Statute of Anno 5. El. 1. St. 5. El. 1. ordained against the maintaining of the authoritie of the Bishops and Sea of Rome shall not extend to make any corruption of bloud the disheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other than the offendor or offendors during his or their naturall liues onely And sauing that the attainder of treason by force of the Statute of Anno 5. Eliz. 11. St. 5. El. 11 prouided against the clipping washing filing or rounding of money maketh no corruption of bloud in the heire or forfeiture of dower in the wife And sauing that the attainder of treason by force of the Statute established Anno 18. El. 1. against impairing diminishing falsifying skaling St. 18. El. 1 or lightning of money maketh no corruption of bloud nor the wife to loose her dower for he that is attainted of that treason shall suffer death and forfeit all his goods and chattels to the King and all his lands during his life onely And likewise sauing that the attainder of felonie by force of the Statute made Anno 1. Iac. 12. against coniuration witchcraft enchantment St. 1. Iac. 12 charme and sorcerie maketh no corruption of bloud nor the forfeiture of the heires or successors inheritance of any land nor of the wiues title of dower And further sauing that the attainder of felonie by force of the Statute prouided Anno 1. M. 12. against vnlawfull assemblies St. 1. M. 12 maketh no corruption of bloud And moreouer sauing that the attainder of felonie by force of the Statute ordained Anno 5. El. 14. against the forging of Euidences St. 5. El. 14. and writings maketh no corruption of bloud nor forfeiture of land or dower And furthermore sauing that the attainder of felonie by force of the Statute of Anno 31. Eliz. 4. St. 31. El. 4 prouided against the imbeseling of the Quéenes ordnance armour or artillery maketh the offendor to forfeit no lands tenements or hereditaments any longer than during his life St. 4. Iac. 1. S. Triall by the country 10. Co. li. 7. 34 S. Br. 56. no corruption of bloud nor the wife to forfeit her dower And the same lawe is if an Englishman doe commit any felonie in Scotland And if a man haue an annuitie to him and his heires The forfeture of an annuity and he doe commit high treason and is attainted thereof he shall forfeit to the King the same annuitie by force of the before recited Statute of Anno 26. H. 8. 13. for that the same annuitie is an inheritance 28 He that is attainted of high treason petit treason or felonie Forfeiting of a title to land shall also forfeit such lands whereof he hath neither possession reuersion or remainder but onely a title or right or cause of action As if a man be disseised of lands and then the disseisée committeth high treason Co. l. 3. 10 after an office found thereof the king may seise those lands as forfeited and escheated vnto him in respect of the same persons attainder of treason And if the disseisée be attainted of petit treason or felonie the Lord of the Fée of whom the same lands be holden may enter into the same lands as escheated vnto him in respect o◠the attainder of his lawfull tenant But the Lord cannot haue a writ or escheat or other action to recouer the same land because his tenant died not or was not seized thereof but his onely remedie is to enter 6. H. 7. 9 And if a man make a lease for the terme of life of his land and after committeth felony and then the tenant for the terme of life dieth the Lord may enter but cannot haue a writ of escheat 29 As he that is attainted of treason or felony shal forfeit his lands Forfeiting of euidence so shal the Lord to whom those lands be forfeited 49. H. 6. 14 haue the euidēce of the same lands as escheated or forfeited vnto him to maintaine his title in the same lands escheated and to prooue how his late tenant came by and held the same lands St. 9. H. 3. 29 30 Though it is ordained by the statute of Magna Charta That iustice shall not be sold deferred or denied to no man neither shall any man be condemned but by lawfull triall and that it be further established by the statute of Anno 5. Edw. 3. St. 5. E. 3. 9 That no man shal be attached nor foreiudged of life lands or goods against the forme of the great Charter and the Law of the Realme So that the Law of the Realme doth allow to euery man that is an offendor his answere and lawfull triall be his crime supposed to be neuer so great and the proofe thereof neuer so manifest But if a man that is arrested of Treason or Felony or being vehemently suspected to haue committed Treason or Felony is attempted to be arrested be so wilfull stubborne or rebellious Forfeiture without at-attainder that he will
condemned and which be fugitiue wheresoeuer they bée found And if they haue any freehold it shall bée forthwith seised into the Kings hands and the King shall haue the profits thereof by the space of a yeare and a day and the land shall bée wasted and destroyed in the houses woods and gardens and in all things belonging to the same except men of certaine places priuiledged And after the King hath had the yeare day and wast the land shall bée restored to the chiefe Lord of the same fee vnlesse that before he redéeme the same yeare day and wast of the King by the paiment of a fine But there is a custome in the Countie of Glocester that after a yeare and a day the lands and tenements of Felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue discended if the felonie had not béene committed And in Kent in Gauelkind the father to the bough the sonne to the plough there all the heires males shall diuide their inheritance and likewise women but women shall not make partition with men 33 By force of which stat of Praerogatiua Regis The yere day and wast of lands of what title shal be forfeited euer sithence that time the King hath had all the thrée things aforesaid viz. the yeare the day and the wast of the lands of him which was attainted of felonie as one of the prerogatiues annexed to the Crowne in all cases where the felon had such an estate in his land Bracton de Corona cap. 13. that he might forfeit the same after his death and that hee himselfe might lawfully haue made wast in the same without being impeached therefore And therefore if the felon be but tenant for the terme of life or for the terme of yeares of lands the king shall not haue the yeare day and wast of them after the felons death for then he might wast another mans inheritance But if a man that is seised of lands in the right of his wife do commit felonie and is attainted thereof the king shall haue the profits of the land during the husbands life if the wife doe liue so long Fitz. Cor. 327. And some doe affirme that the king shall haue the yeare day and wast of the said wiues lands after the felons death because the felon during his life might haue committed wast therein and for that the felon had such an estate in his wiues lands that by the common law he might in his life haue made alienation of them and driuen his wife to her Cuiin vita to haue recouered them But that séemeth to be helped if any such law were before by the Statute of Anno 32. H. 8. where it is ordained That no fine feoffement or other act made suffered St. 32. H. 8. 28 or done by the husband onely of any lands tenements or other hereditaments being the inheritance or fréehold of his wife during the couerture betwéene them shall in any wise be or make any discontinuance thereof or be preiudiciall or hurtfull to the said wife or her heires or to such as shall haue title interest or right to the same by the death of such wife But the same wife or her heires and such other to whom such right shall appertaine after her decease shall and may then lawfully enter into such lands c. according to their rights and titles therein notwithstanding such fine feoffement or other act fines leuied by the husband and wife whereunto the said wife is partie and priuie only except By which Statute the wife after the death of her husband may enter into her owne land notwithstanding any attainder forfeiture or other act done by her husband No yere day and wast of lands holden by ioynt purchase 34 A man seised of land in fée simple holden of a common person did infeoffe thereof the husband and wife and their heires the husband committed felonie and was attainted thereof the King seised the land into his hands for his yere day and wast and after the Kings said terme expired 4. E. 3. 47. the Lord of the fée of whom the same land was holden did sue in the Chauncerie to haue the same land restored to him to whom by warrant the Escheator did deliuer the same lend vpon whose possession the wife of the felon attainted did enter and the said Lord of the fée reentred vpon her whereupon the sayd woman brought an Assise against the sayd Lord and recouered the land Because the fée simple of the same land being in the wife by reason of the ioynt purchase with her husband the K. ought not to haue had the yeare and day after the felons death nor the Lord of the fée the land after by Escheat 35 If tenant in tayle Tenant in tayle generall or speciall or tenant in franke mariage of land do commit petit Treason or Felonie and is attainted thereof and executed the King after his death shall neither haue the yeare day or wast in the felons land nor the Lord of the fée shall haue the land by Escheat but after the felons death the same land shall discend reuert or remaine secundum formam doni to the next heire in tayle of the felon or to him in the reuersion or remainder thereof for in this case the felon was in effect but tenant for the terme of his owne life and thereby could not forfeit a greater estate in his land than that which he had And in in like sort if he that hath land by fresh disseisin or is tenant in fee farme of land A disseiser Tenant in fée farme A mortgagée vpon condition to pay the vttermost yearely value thereof or hath land in Mortgage to be redeemed by the Mortgager vpon condition of payment of money or other condition doth commit petit treason or felonie and is attainted thereof the King shall not haue the yeare day and wast for that would tend to the preiudice of others not partie to the offence who haue or may haue a better right and title to the same lands than the felon attainted Fi. Cor. 310 36 If a man that is owner of land in antient demesne Tenant in antient demesne which hee may sell without consent of the Lord doe commit petit Treason or Felonie and is attainted thereof the King shall haue the yeare day and wast notwithstanding that he hath vsed to surrender the land into the Lords hands by a rod in the Court vpon euerie alienation thereof But if he be owner of the land in auntient demesne of a base tenure it is otherwise Fitz. Cor. 290. 37 A man that tooke a Church for felonie escaped and the towne pursued The yere day wast without attainder and killed him because he would not yéeld himselfe and this matter was presented before the Iustices in Eyre and they adiudged that his goods and the profits of his lands
should be forfeited to the King from the time of his flying vntill the presentment and also that the King should haue the yeare day and wast S. Br. 30. But this land shall not come to the Lord of the fée by Escheat because hée was not attainted of felonie Pi. Cor. 332 38 The King shall not haue the yeare day The yere day and wast of a Clerke conuict Land of small value and wast of the lands of a clerk conuict neither shall the Lord of the fée haue the forseiture thereof for that the offendor is not attainted but onely conuict of felonie And if the land of the felon attainted be but of the yearely value of thrée or foure shillings or of so small value Fi. Cor. 327 that it will cost more to obtaine it by suit out of the Kings hands than it is worth then the King shall not haue the yeare day and wast thereof St. 17. E. 2. 16 39 The words of the foresayd Stat. of Praerogatiua Regis be If they haue any fréehold When the K. shall haue the felons yeare day and wast it shall bée presently seised into the Kings hands This word presently ought to bee intended immediatly after the Office found and not before 49. E. 3. 11. Fitz. N. B. fol. 144. And therefore if an Office of that land bee not found vntill it bee many yeares after the felons attainder yet from the time of the Office found vntill a yeare and a day after the King shall haue the Felons lands And also the King shall haue the profit of the Felons lands from the time of his attainder vntill the Office bée found thereof though it bée twentie years betwéene the attainder and the Office for the heire of the felon cannot haue it in respect of the corruption of bloud And the Lord must not haue it by Escheat vntill the King bée intituled vnto it by Office and vntill one yeare and a day after and vntill the King hath wasted it vnlesse the Lord doth agrée with the King in the meane time for the sayd yeare day and wast And moreouer Fitz. Trauerse 48. 4. E. 3. 47. the Lord cannot at any time enter into the same land as escheated vnto him vntill hée hath sued a writ to haue it deliuered vnto him out of the Kings hands for after a writ is awarded to find the land of him that is attainted of Felonie another Writ shall bée directed to enquire if the King hath had the yeare Regist fol. 165. day and wast and that beeing found the Lord shall haue the land out of the Kings hands and not before because though the attainder of the Felon was found and that the King ought to haue had the yeare day and wast yet it may bee that the King neuer had the profit thereof but was interrupted by some pâ—â—â—on or by some casuall meanes 40 This commoditie to the King and forfeiture of the felon of the yeare Fit Cor. 310 day and wast is such a benefit to the King and so firmely and highly annexed to the Crowne The yere day and wast not grantable froÌ„ the Crowne that it cannot be seuered from it or granted to any other neither can any person claime it by colour of any franchise or libertie But after the King is intituled vnto it by Office hée may graunt or commit the land to another during the yeare and day and also giue him authoritie to take the benefit of the wast What goods of felons the king shal haue 41 The words of the foresaid stat of Praerog Regis be The K. shal haue all the goods of felons which be condemned and which bee fugitiue which is as much to say as he shall haue all their goods mouable and vnmouable for the King shal haue the corne growing vpon the land of the felon attainted and the issues and profits of the land which he hath in his owne right or in the right of his wife during the time of his life or vntill he doth purchase his pardon But touching the profit of fugitiues lands there is a difference betwéene a flying presented before the Coroner and a flying found by verdict vpon an acquitall for vpon a flying presented before the Coroner Forfeiture vpon flying Fi. Cor. 296 344. he shall forfeit the profits of his lands vntill his death or vntill he be acquit or vntill he hath purchased the K. pardon but vpon a flying found by verdict vpon acquitall he shall forf no issues of his lands for by his acquitall the land is discharged and consequently the issues thereof From what time forf of land shal haue relation 42 The law hath restrained offendors in Treason and Felonie to certaine times to make alienation of their lands and goods and hath prefixed limits whereunto the forfeiture of their said lands and goods shall haue relation and yet with this difference That as soone as any Treason or Felonie is committed the offendor therein is restrained to make any alienation of his lands for then it is not his land but by the committing of the Treason or Felonie Pl. Com. 263. 30. H. 6. 5. Bracton Fitz. Forf 30. Bracton l. 2. 13. hee hath forfeited all the estate which he had therein And therefore if betwéen the time of the committing of the Treason or Felonie and of the offendors attainder thereof the offendor doth make any alienation or assurance of his land after the time that the offendor shall be attainted of the same Treason or Felonie the said assurance shall bée void whether the same attainder bée by verdict confession or outlawrie for the forfeiture of the land shall haue relation from the time of the offence committed From what time the forf of goods shall haue relation 43 The forfeiture of goods and chattels shall not looke backe so farre as forfeyture of landes nor shall haue relation from the time of the Treason or Felonie committed but from the time of the Attaynder of the Treason or Felonie And therefore if one doe commit Treason or Felony Fi. Forf 30 and in the meane time betwéene the Treason or Felony committed and the offendors attainder thereof the offendor doth giue away his goods this is a good gift for as yet they be not forfeit but be his owne to maintaine himselfe and his family vntill he be attainted of Treason or Felony and by the Law adiudged not worthy to possesse or enioy goods nor to haue sustenance And therefore if vpon a fugam fecit presented before the Coroner one doe forfeit his goods he shall not forfeit those goods that hée had at the time of the Felony committed but he shall onely forfeit those goods which he had at that day when the fugam fecit was presented against him And in like sort if one that is indicted of Felony be acquit thereof by verdict and in their verdict the Iury doe find Fi. Cor. 296 that
Felon both dwell and therefore vpon a fugam fecit presented before the Coroner 22. As p. 96. the goods ought to be seised by the Shirife and praysed by an Enquest and the appraisement must bée inrolled in the Coroners Roll and the goods shal be deliuered to the towne to answere to the king for them Fi. Cor. 366 and though the goods be not deliuered to the towne yet if the goods were in the Felons possession at the time of his conuiction or flying the towne shall answere for them And some do affirme that the shirife and the Dozeners may seize Felons goods into the kings hands and the shirife shall deliuer those goods to the towne to answere to the king at the comming of the Iustices in Eyre But if neither the Shirife nor the Dozeners doe seize the same goods yet the towne shall answere to the king for them at the comming of the Iustices in Eyre For as soone as a fugam fecit is found before the Coroner Fi. Forf 32 the towne shal be presently charged with the goods of him that did flye away And though it be presented before the Iustices that a Felon was deliuered to the shirife with the manoure and with all his goods yet the towne shal be charged with the said Felons goods though the same was found and presented with intent to ease or discharge the same town And in like sort notwithstanding it doth appeare by the Coroners Roll Fi. Cor. 300 that the goods of a Felon were deliuered to one man of the town yet the king shall leuy those goods of the whole towne But when the shirife doth come to leuy those goods of the town by the shirifes consent they may be leuied of him only who had them in custody Fit Co. 181 One that was indicted of Felony appeared at the Exigent and pleaded and was acquit and his goods being forfeited because he did not come in before the Exigent awarded were praised by the Enquest which acquitted him at forty shillings and the same Enquest found what towne was charged with them which said presentment of the Enquest was inrolled and it was adiudged that the same towne may seize the same Felons goods in what place soeuer they can find them And because the towne where the Felons goods be shall answere for them therefore they which doe take into their possession any of the same Felons goods and other goods which do belong vnto the king as Deodands and such like are to be amerced by the Iustices in Eyre if the same goods be not deliuered vnto them by the towne which hath the charge of them for that the same towne hath the custody of them But by a Statute made Anno 31. Ed. 3. St. 31. E. 3. 3 the towne shal be eased of this charge if they can shew what other person hath detained those goods and that they could neuer haue possession of them the words of which statute be If any man or towne be charged in the Exchequer by the Estreats of the Iustices of the goods of Fugitiues and Felons and he will alledge in discharge of himselfe another that is chargeable he shal be heard and right shal be done And therfore if it be found by office before the Escheator that the goods of a man attainted of Felony be in the custody of such a person in this case a Scire facias shal be awarded vpon the same office against the said person to shew if he hath any thing to say why he should not answer those goods But if it be found by the Enquest which did attaint the Felon before Iustices of Gaole deliuery Iustices of Oier and Determiner or Iustices of Peace that any person doth detaine the goods of a Felon attainted the said Iustices cannot award proces thereupon against the party that doth detaine the same goods but they must send their Estreats into the Exchequer and the officers of the exchequer will award proces against the same party to leuy the same goods And yet if he that is presented to detaine the same goods do find himselfe grieued therewith he cannot haue a Trauerse in the Exchequer to that which is found by the Iury because the court of Exchequer hath not the record before thē neither can he trauerse the same before the Iustices of Gaole deliuerie Iustices of Oyer and Determiner or Iustices of peace for that they cannot award a Supersedeas to the Barons of the Exchequer to surcease their Proces But his onely remedie in this case is to procure a Certiorari to remooue the Record into the Kings Bench and there to tender his trauerse and auerrement and to haue a Supersedeas from thence to the Barons of the Exchequer to surcease their Proces And the same law is if the like thing be found by an Enquest in the Kings Bench after they haue deliuered their Records thereof into the Exchequer And a man which was indicted for the taking of goods of one that was attainted of Treason was put to the answer thereof So that sithence the sayd statute of 31. Edw. 3. others haue béene charged with felons goods as well as townes But the Sherife was alwayes charged with the profits of felons fugitiues lands Fi. Cor. 39◠according to the extent thereof The Sherife charged with felons lands and not any towne And so he was charged with goods cōfiscat as where vpō an indictment of felonie Fitz. Cor. 355. 368. the manoure is brought into the Court and the partie indicted doth disclaime therein by this disclaimer the King shall haue the manoure and the Sherife shall be charged therewith And the same manoure shall be praysed by the Enquest that doth trye the felonie and if it be found by the same Iurie that it was impaired by the Constable or any other who had the same in kéeping the Sherife shal be commaunded to leuie so much in value as it was impaired by the said Constable or other And in some cases the Sherife shall be charged with a felons goods Fitz. Cor. 290. 308. and not the towne where the felon did dwel or where his goods remained but that must be by agréement betwéene the said Sherife and the towne To whom the forf of lands for high treason shal accrue 47 In High treason the King shall haue the forfeiture of the offendors lands of whom soeuer they be holden and that by the common law for the offence committed is not to any subiect but to the Soueraigne gouernour himselfe his Crowne and Realme which is an offence of so high a nature that it cannot be recompenced with all that the offendor hath and then it should bée lesse counteruailed if any other should bée partaker with the King therin And the meane Lords shall receiue no losse thereby for they had nothing in the land but a Seigniorie out of it And if they hold ouer of the King by the like seruices then haue they lost
that all men may kill him without punishment and specially if he defend himselfe or flie away in such sort that he may be hardly apprehended But if he doe not flie or defend himselfe then he that killeth a man so taken shal answere for him as for any other man for that life and death be in the kings hands vnlesse there be a custome to the contrary as in the Counties of Hereford and Glocester And he shal forfeit the benefit of Law for he which being outlawed will be so bold as to returne without the kings licence shall die without law or further examination in iudgement And he cannot appeale others for he hath lost the benefit of law and carieth with him his iudgement vpon his head he can haue no defence so long as the Outlary standeth in force It is vpright iustice that he shal perish without law and iudgement who refuseth to liue according to the law And he shall forfeit his right and possession of all things that he hath gotten or may get And all bonds obligations homages fealties oathes and other contracts made with him be dissolued which can neuer be reuiued but vpon a new contract though he be restored And he shal forfeit all his tenements and hereditaments from him and his heires and euery action that was due to him before his Outlary though he be after restored by the kings pardon And Outlary of felony and euery other iudgement of felony doth dissolue all the gifts sales of land that he made sithence the time of the felony committed The outlawes goods shal be the kings for he cannot be outlawed in any other place but in the kings Court as in the Country Court or in the Hustings of London ⧠Corruption of Blood 1 BY attainder of Treason or Felony commeth corruption of Blood that is to say that the offendors children cannot be heires to him that is attainted nor to any other auncestor Corruption of blood salued by Parliament only And if the offendor were a Nobleman or a Gentleman before by this attainder he is become ignoble and not onely he himselfe but also all his children hauing respect to the Nobilitie which they had by their birth And this corruption of Blood is so grieuous that it cannot bee salued otherwise then by authoritie of Parliament But if the King will pardon the offendor it will cleanse the corruption of blood of those children which be borne after the pardon and they which be borne after the pardon may inherite the land which their auncestor purchased at the time of the pardon or after but so cannot they which were borne before the pardon And also he that is attainted of Treason or Felony shall not bee heire to his father but his disabilitie shall hinder others to be heire so that during his life the land shall rather escheat to the lord of the fée 27. Ed. 3. 77. Fi. Petit. 20 then discend to another But if he that is attainted doe die without issue of his body during the life of his auncestor then his younger brother sister or cousin shall inherite for if the eldest sonne be hanged Fi. Discēt 6. 26. As p. 2. or doth abiure the Realme for Felony during the fathers life it is no impediment but that the youngest sonne may inherite 29. As p. 11 13. H. 4. 8. Fit Discent 17. And if he which is attainted of Treason or Felony in the life time of his auncestor doe purchase the Kings pardon before the death of his auncestor yet he shall not be heire to his said auncestor but the land shall rather escheat to the lord of the fée But if the eldest sonne be a Clerke conuict in the life of his father and after his father dieth in this case he shall inherite his fathers land because he was not attainted of Felony for by the common Law hée should haue inherited after hée had made his purgation And now by the Statute of Anno 18. Eliz. hée shall bee forthwith enlarged after burning in the hand Fi. Cor. 382 St. 18. Eli. 6. and deliuered out of prison and not committed to the Ordinary to make his purgation and so he is in case as if he had made his purgation Where corruption of blood shall preiudice tenant by the courtesie 2 If a man that hath land in the right of his wife haue issue 13. H. 7. 17 and doth commit Felony for the which he is attainted and the king doth pardon him in this case if his wife doe die before him he shall not be tenant by the courtesie for the corruption of blood of that issue But it is otherwise if he hath issue after the pardon for then he shall be tenant by the courtesie although the issue which he had before the pardon be not inheritable The eldest sonne attainted of felony during his fathers life 3 If a man seised of lands hath issue two sonnes 32. H. 8. Dyer 48. and the eldest is attainted of Felony in the life of his father and is executed for the felony or otherwise dieth during the life of his father and after the father dieth seised of the land the land shal discend to the youngest sonne as heire to his father if the eldest sonne hath no issue then liuing But if the eldest sonne that was attainted hath any issue in life which should haue inherited but for the attainder the land shall escheat to the lord and not discend to the younger brother for that the blood of the eldest brother is corrupted Where an attainder but n◠corruption of blood 4 S. Forfeiture 27 That the attainder of Treason or Felony in certaine cases shal not extend to make any corruption of blood the disinheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other then of the offendor or offendors during his or their naturall liues only ⧠Restitution of stolne goods 1 HAuing written of Robberies and other Felonies and declared how Felons are to be prosecuted by Arrest Appeale Indictment Arraignment Tryall and Iudgement and what they shall forfeit I meane now to shew how true men whose goods were robbed stoln or feloniously taken from them by such Felons shall be restored to their goods againe As it is necessary for the Commonwealth that Felons should be punished least the impunity of some should incourage them and also allure others to commit the like offences so is it fit that they chiefely whose goods were taken from them and therby haue tasted the smart and receiued the losse by the Felons and are more likely to know who they be and where they be then others are should doe their vttermost endeauor to procure those Felons to be apprehended brought to their answers and to haue them punished according to their demerits that is to say he that was robbed What is fresh suit or whose goods were stolne from him ought presently after the
things done in the Countie which belongeth to the Office of the Coroner And also an Appeale shal be entred of Robberie or Larcenie in the presence of the Coroner in the Court of any frée man which hath a franchise of Infang théefe Election of the Coroner Which Coroner shall be chosen into the same Office vpon the death or other auoidance of another by force of the Kings writ directed to the Sherife of that Countie where that Office is void by death or otherwise And the same election shall be in the full County Court by warrant of the Kings writ The tenor of which writ is as followeth 2 Iames by the grace of God c. The writ de Coronator◠eligendo To the Sherife of the Countie of Buckingham Salutation c. Because L. one of our Coroners of the Countie is deceased as we are informed we do commaund thée if it bee so that thou doest cause another Coroner to be chosen in thy full Countie by the assent of the same Countie in the place of the same L. according to the forme of the statute therefore made and prouided Who taking his othe according to the custom shall from thenceforth do and performe all things which doe appertaine to the Office of a Coroner in the Countie aforesayd And cause such a one to bee chosen which best can and will attend that Office How long a Coroner shal continue in his Office When a Coroner is chosen he shall continue in his Office vntill the King hath otherwise determined his pleasure 4. E. 4. 44 or that the King doth dye or that there be another King for he is not changeable euerie yeare as the Sherife and Escheator is And then the Sherife shall giue him an othe That he shall lawfully and without demaunding of any reward make his enquests and inrolments and do all things which do belong to the office of the Coroner 3 And because many meane men and of small discretion were diuers times chosen into the sayd Office of Coroners and for that it is expedient that discréet lawfull and sage men should meddle in the same Office therefore by the Statute o◠Westminst prim̄ made Anno 3. Edw. primi St. 3. E. 1. 10 it was ordained Who shal be Coroners by whom they shal be chosen That all Coroners of Shires shall bée chosen in the full Counties by the Commons of the same Counties of the most méet and worthie people which may bée found in the same Counties to execute the sayd Offices and of the most sage and wise Knights which doe best know can and will attend vnto the same Office and which will lawfully attache and present the Pleas of the Crowne And the same Statute was after rehearsed and confirmed by the Statute of Anno 28. Edw. 3. by which it was ordained St. 28. E. 3. 6 That Coroners of Counties shall bée chosen in the full Counties by the Commons of the same Counties of the most fit and lawfull persons of the same Counties Alwayes sauing to the King and other Lords which ought to make such Coroners their Franchises St. 14. E. 3. 8 But by the Statute of Anno 14. Edw. 3. no Coroner shall bée chosen A Coroner must haue sufficient land if hée haue not sufficient land in fee in the same Countie whereof hée may answer all manner of people And because this Statute is in the negatiue therefore the not satisfying of it is a sufficient cause to remooue a Coroner from his Office And hée is sayd to haue sufficient land if hée hath land in the Countie whereupon hée may liue according to his degrée to execute that Office And whereas the foresayd Statute of 28. Edw. 3. hath ordayned Fi. N. B. 164. That a Coroner shall bée chosen by the Commons of the sayd Counties that is intended by the fréeholders of the same Counties and by none other Whether Coroners ought to be knights 4 The foresayd Statute of Westminst prim̄ St. 3. E. 1. 10 committeth the Office of Coroners to Knights and none others and therefore in former ages it was a cause amongst others to discharge a Coroner of his Office that hée was no Knight But because those words were put into the Statute onely to the intent that the Coroner should haue sufficient within the same Countie for which cause if that be performed the intent of the Statute is obserued Causes to remoue a Coroner 5 And also the same statute doth ordaine That such shall bee chosen Coroners which do know can and will attend vnto the said Office And therefore if any be chosen which do not know cannot or will not attend vnto the same office they shal be remoued and discharged of that office by the K. writ Co. l. 5. 57. wherein the cause of his discharge shall be rehearsed either because he is imployed in other affaires of the K. or that he is sicke of some grieuous and long infirmitie or that he is lame or that he is not méet for that office viz. by force of some clause contained in the said statute of West 1. or that hee hath not sufficient lands within the same Countie or that he hath the palsey Fitz. N.B. 165. N. or that hee is dwelling in the vttermost part of the Shire or that he is chosen Sherife or verderer of a forrest But if any of those causes surmised be false whereby the Coroner is discharged of his Office by false suggestion then he may sue for a commission to be awarded out of the Chauncerie to enquire of the same suggestion And if it be found false and returned so into the Chauncerie then there shall be a Supersedeas awarded out of the Chauncerie to the Sherife that hee shall not remoue the sayd Coroner And if he be remoued that hée shall suffer him to enioy the sayd Office as he did before But it is sometimes vsed and most commendable for him that is chosen Coroner if he perceiue in himselfe any of the foresayd impediments Register fo 177. to purchase a writ out of the Chancerie to discharge him of the said Office 6 And because the sayd Coroner should doe iustice and right to all persons Where a Coroner may take a fee and where not without extortion or exaction St. 3. E. 1. 10 the foresayd statute of West 1. doth further ordaine That Sherifes shall haue counter-rolls with the Coroners as well of Appeales as of Enquests of Attachments and other things which do belong to his Office And no Coroner shall demaund or take any thing for the execution of his Office vpon paine of a grieuous forfeiture to the King Which said Statute was also confirmed by a statute made at Excester St. 14. E. 1. anno 14. Edw. 1. And by the statute made Anno 1. H. 8. it was enacted St. 1. H. 8. 7. That vpon request made to a Coroner to come and
enquire vpon the view of any person slaine drowned or otherwise dead by misaduenture the sayd Coroner shall diligently doe his Office vpon the view of the bodie of euerie such person or persons without any thing taking therefore vpon paine to euerie Coroner that will not endeuour himselfe to doe his Office as is aforesaid or that hee taketh any thing of any person for doing of his Office vpon euery person dead by misaduenture for euerie time fortie shillings And the Iustices of Assises and Iustices of Peace within the countrey where such default of Coroners be haue authoritie to enquire thereof and to determine the same as well by examination as by presentment But by a statute made Anno 3. H. 7. it was prouided St. 3. H. 7. 1. That a Coroner shall haue for his fée vpon euerie Inquisition taken vpon the view of a bodie murdered or otherwise slaine iij. s̄ iiij d. of the goods and cattels of the murderer if he haue any and if he haue no goods the Coroner shall haue his fee of such amerciaments as any towneship shall be amerced for escape of any such murderer And though by the common law the Coroner hath a fee Fitz. Cor. 321. 372. a penie of euerie Visinage as appendant to his Office at the comming of the Iustices in Eire yet that fee is not repugnant to the foresayd statute of Westminst 1. for hee taketh not that to execute his Office but as a fee of right incident to his office though he do nothing in the execution of the said Office St. 3. Ed. 1. Bracton de Corona cap. 5. 7 It appeareth both by the stat intituled Officium Coronatoris Of what things Coroners shall inquire and by Bracton that if any Coroners be aduertised by the K. Bailifes or other honest men of the countrey to come to those that be slaine sodainly dead or wounded or to house breakers or to any place where treasure is found they shall immediatly come and forthwith commaund foure fiue or sixe of the next townes that they appeare before them in such a place and when they come the Coroners vpon their othe shall inquire Murder if they did know of that man that was killed where he was first slaine whether in the field or in the house bed Tauerne or in any companie and who were there Inquirie of the offendors Likewise they shal inquire who were culpable either of the act or force and who were present either men or women and of what age they be so they can speak and haue discretion And they which be found guiltie by inquisition in the foresaid maner shal be taken deliuered to the Sherif and committed to the gaole and as many of them as be not found guiltie shal be attached vntil the comming of the Iustices and their names inrolled A man found slaine And if any man be sodainly slain and found in the fields or woods it is to be considered whether he were slaine there or not if hée were brought thither their steps that brought him if it may be shall bee followed and so shall the tracke of horse and cart And also it shall be inquired if he that was slaine were knowne or vnknowne and where he lodged the night before And if any be found guiltie of the death of such immediatly the Coroners shal come to his house and inquire what cattell he hath and what corne in his graunge and what on the ground and if he be a frée man what frée land hée hath and what it is worth by the yeare beside the Lord of the fées seruice but the land shall remaine in the kings hands vntill the Lord of the fée hath made a fine for it And when they haue enquired of all things then they shal cause them to be priced as if they should straight way be sold and the bodie of him that is dead shall be buried Moreouer the Coroners shall enquire of them which be drowned sodainly slaine Sodainly slaine or strangled by the signe of a coard tyed strait about their neckes or about any of their members or vpon any other hurt found vpon their bodies or some other manifest token and shall attache the finders and al other in their company A Coroner ought to inquire of treasure that is found Treasure trone who were the finders and who are suspected thereof which may be gathered by some mans delicat liuing and frequenting of Tauernes which vpon suspition shall be attached by foure or sixe or mo pledges If any be appealed of Rape Rape he shall be attached by foure or sixe pledges if the appeale be fresh and the signe of the truth apparant or an open outcrie leuyed But if it be without any manifest token or outcry two pledges shall suffice Vpon Appeale of Maihem if the wounds Maihem or wound be mortall they which bee appealed shall bée forthwith apprehended and kept vntill it be knowne whether he that is hurt shall recouer or not if he dye they shall be retained if he liue they shall be attached by foure or sixe pledges according to the bignesse of the wound If it be for a Maihem then there shall be no lesse than foure pledges if a small wound be then two will serue The length breadth and déepenesse of all wounds The length breadth and déepnesse of wounds ought to be viewed and with what weapons and in what part of the bodie the partie was hurt and also how many wounds there be how many be culpable and who gaue the wound all which things shall bee inrolled in the Coroners roll Horses boats carts commonly called Deodands Deodands wherby any person shall perish shall be valued and deliuered to the whole township which shal be answerable therefore Whosoeuer layeth hands vpon the wreck of the sea Wrecke of the Sea shal be attached by sufficient pledges The price of the wrecke shal be valued and deliuered to the towne to answer c. 8 It doth first appeare by the words of this stat St. 3. Ed. 1. that the Coroner ought to do his office in his owne proper person The Coroner shall execute his Office in his owne person and not by Deputie viz. They shall presently come to those that bée slaine or sodainely dead And so also it is declared by the Statute of Excester St. 14. E. 1. and prooued by the foresayde definition of the Office or Authoritie of a Coroner viz. That a Coroner shall make a Record of his owne view which is that hée shall sée the dead bodie when hée doth make the inquirie or otherwise the inquirie is not good Fi. Cor. 10◠For if hee will inquire of any dead person without the sight of him this is without authoritie and so void The Coroner shall sée the dead body And therefore if the bodie bée buried before his comming hée must record it in his Rolles to the intent that the towne where
take reward of any who will fréely licence all persons to prosecute their right giue full eare to the widowes complaint further the cause of the orphan and fatherlesse and suffer none that hée can helpe to receiue wrong who will not feare the countenance of the mightie nor disdaine the basenesse of the poore whom neither hatred fauor or priuat affection will moue but without respect of persons will yéeld to each wight that which his cause requireth who will remember and neuer forget that God hath endowed him with knowledge and vnderstanding Ecclesiast 17 that he hath made a couenant with him to shew him what true iustice and iudgement is that all his actions bée continually in Gods sight and that euerie moment from heauen the King of Kings doth behold them And finally who duely respecting both the commissions which he hath receiued from God and his prince will so indifferently temper iustice with mercie towards the poore prisoner standing trembling before him at the barre as he will hope for mercie when himselfe shall make his last and great account before the God of iustice and mercie 2 Whereas diuers antient Prerogatiues and Authorities of iustice appertaining to the Crown of this Realm were seuered and taken from the same by sundrie gifts of the Kings Progenitors Kings of this Realme to the great diminution of the royall estate of the same and to the hindrance and delay of iustice St. 27. H. 8. 25. for the reformation whereof by a Statute made Anno 27. H. 8. it was enected That no person or persons of what estate condition None shall make Iustices but the King or degree soeuer they bée shall haue any power or authoritie to make any Iustices of Eyre Iustices of Assise Iustices of Peace or Iustices of Gaole deliuerie but that all such Officers and Ministers shall bée made by Letters Patents vnder the Kings great Seale in the name and by authoritie of the King and his heires Kings of this Realme in all Shires Counties Counties Palantine and other places of this Realme Wales and the Marches of the same or in any other his Dominions at their pleasure and wills in such maner and forme as Iustices in Eyre c. bée commonly made in euerie Shire of this Realme Any graunts vsages Acts of Parliament or other thing notwithstanding The Iudge vpon the arraignment of a Péerâ—e of the Realme 3 When a Péere of the Realme and Lord of the Parliament 1. H. 4. 1â— 13. H. 8. 13. 10. Ed. 4. 6. is to be arraigned vpon any Treason or Felonie whereof he is indicted and whereunto he hath pleaded not guiltie the King by his letters patents shall assigne some noble and sage Lord of the Parliament to bee high Steward of England for the day of his arraignement who before the same day shall make a Precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him xviij or xx Lords of the Parliament vpon the same day c. S. Triall 2. 4 Where Treasons Misprisions of Treasons Murders Manslaughters and other malicious strikings by reason whereof blood hath béen shed against the K. peace were often committed within the limits of the Kings palace or house or other houses where his Maiestie was abiding in his royall person which offences when they be done be best knowne by his Highnesse Officers of his houshold and by his seruants of his Checke roll And if his Maiesty shall happen to remoue from such his palace or house or other house where such offences were done before the tryall and determination thereof then such offences might not lawfully be tryed heard and determined by and before the sayd Officers but bée remitted to bée tryed and determined by the order of the Common law by reason whereof the punishment of the sayd offendors in such cases hath beene long time delayed and sometime their offences forgotten and not remembred and so they escaped vnpunished For the redresse whereof by a Statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 12. That all Treasons Misprisions of Treasons Murders Manslaughters Bloudsheds and other malitious strikings by reason whereof bloud shall be shed against the Kings peace which shall bée done within any the Palaces or houses of the King or his heires or within any other house or houses at such time as his Maiestie shall bée then abiding in his royall person shall bee inquired of tryed heard and determined within any of the Kings houses or other house where his Maiestie shall bée abiding Iudge of treasons and felonies committed in the K. house before the Lord Steward of the Kings houshold and in his absence before the Treasorer and Comptroller of the K. houshold and Steward of the Marshalsey for the time beeing or two of them whereof the Steward of the Marshalsey to bee one by vertue of their offices without any Commission or other authoritie to them giuen And whether the King shall bée remooued from the house where such offences shall bée done or not before they be inquired of heard and determined yet such offences shall be inquired of tryed heard and determined before the Kings Officers of his houshold before named or two of them by the Inquisition and verdict of his houshold seruants in his Checke roll at such Palace or house where his Maiestie shall bée at any time abiding in manner and forme as is hereafter expressed The two Clerkes Comptrollers Clerkes of the Checke and Clerkes Marshals for the time being of the K. houshold or one of them vpon a Precept to them or any of them made by the Lord Steward or in his absence by the said Treasorer and Comptroller of the Kings houshold and the said Steward of the Marshalsey or by two of them whereof the sayd Steward of the Marshalsey to be one shall haue power to summon warne and returne the names of twentie foure persons being yeomen officers of the Kings sayd houshold in the sayd Checke roll to inquire of such Treasons Misprisions of Treasons Murders Manslaughters and other malitious strikings by reason whereof bloud shall bée shed against the Kings peace before the sayd Lord Steward and in his absence before the sayd Treasorer Comptroller and Steward of the Marshalsey or before two of them at the least whereof the Steward to bée one And it shall bee lawfull to the sayde Lord Steward and in his absence to the sayd Treasorer Comptroller and Steward of the Marshalsey aforesayd or two of them whereof the sayd Steward to bée one before whom such Returnes shall bée so made as is aforesayd to cause such number of the sayd foure and twentie persons so returned aboue the number of twelue persons as to him or them shall séeme expedient to inquire of such Treasons Misprisions of Treasons Murders Manslaughters or other malitious strikings by reason whereof bloud shal bée shed against the Kings peace
by a drunkard 37 Homicide by an infant 38 Homicide by a beast 39 In Homicide the party killed must be in Esse 40 In Homicide the partie hurt must dye within the yeare 41 Homicide by felo de se The cause of the forfeiture of felo de se 42 An infant or lunaticke cannot be felo de se 43 Killing of himselfe in stead of another 44 Forfeiture of a lease made to felo de se and his wife 45 No forfeiture of a debt vpon contract made by felo de se 46 A villaine is felo de se and his Lord seiseth his goods 47 One mortgageth his goods and becommeth felo de se 48 Homicide by casualtie 49 A Deodand and what it is 50 A tree and the bough of another tree doth kill a man 51 Falling off a cart or from a cart 52 Falling from a cart laden Falling from a cart that is lading 53 Falling from a horse into the water A horse or other beast killeth a man From what time a Deodand shall haue relation 54 A beame of a bel in a church killeth a man 55 A wheele of a Mill killeth a man 56 Falling from a horse against a Trunke 57 Falling from a houell or ricke 58 Falling out of a ship that is sailing 59 No Deodand for him that is within foureteene yeares of age 60 The Sherife shal be charged with a Deodand 61 A man vnknowne found dead in the field Felonie by the Common Law Fol. 129. 1 What is Larceny Petit Larcenie The intent of stealing must bee at the time of the receit of the goods 2 Stealing goods at seueral times of the value of xij d ' Felonie in seuerall persons 3 The Iurie may find an vnder value of the goods stolne 4 Felonie where the goods be in the owners possession 5 A seruant hauing vse of his Masters goods doth steale them 6 One hauing the key doth steale the goods in the house or chest 7 A bargaine with a Carryer but not a deliuerie of the goods 8 A Carrier stealeth the goods committed vnto him 9 A Carrier stealeth part of his charge 10 Felony in a man for taking of his owne goods 11 Stealing of the goods of a Church or Corporation 12 In what case a married wife may commit felonie in what not A woman taking her husbands goods 13 In what case an infant may commit felonie An ideot or lunaticke cannot commit felonie 14 Burning of a house or barne felonie 15 Felonie in indictors to discouer their counsell 16 Rescuing of a prisoner felonie 17 Wilfull escape is felonie 18 Goods stolne from him that hath the custodie of them 19 Goods stolne from him that did steale them 20 Of what things Larcenie may bee committed of what not 21 Felonie must bee of personall goods and of things reall 22 A thing made felonie by Statute which is after repealed 23 What Theefeboot ir 24 Felony committed in one K. raigne punished in another 25 Stolne goods carried into seuerall counties In what gaole a felon shall bee imprisoned 26 Breaking a house to take a felon 27 What is robberie Robberie by threatning Taking a mans money but not putting him in feare 28 Robbery by taking an othe to bring money Robbery by taking of money giuen 29 Robberie in will but not in deed 30 What is Burglarie 31 Breaking of a house but not entring 32 No Burglarie may be committed in the day time 33 Breaking of a dwelling house wherein no person is Felonie by Statute Fol. 133. 1 Felonie in conspiring to destroy the King or any Lord or Counsellor 2 Felonie to rauish a woman 3 Felonie to abuse a woman child vnder the age of tenne yeares 4 Felony in the rauisher where the woman rauished doth consent A woman rauished conceiued with child The woman rauished a concubine The woman not carnally knowne Rapuit necessarie in an Indictment of Rape 5 Felonie by taking a woman against her will 6 Felonie for transporting of sheepe 7 Felonie in marrying againe vntill the former husband or wife be dead 8 Felony in some such as be infected with the plague for their abuses 9 In what case a phantasticall Recusant must abiure vpon paine of felonie 10 In what cases a Popish Recusant must abiure vpon paine of felonie 11 The vice of buggerie is felonie 12 Felonie in seruants that imbecile their masters goods Receiuing money for wares Receiuing money vpon on obligation 13 Felonie in seruants imbeciling their masters goods after their deaths 14 Felony by enforcing a prisoner to become an approuer 15 Felonie in those that counterfeit to be Aegyptians 16 Felonie by imbeciling of records The penaltie of Iudges or Officers abusing records 17 Felony in cutting out of tongues or putting out of eyes 18 Felonie in practising of multiplication of gold or siluer 19 Felony in withholding of a hawke 20 Felony in making of congregations of Masons 21 Felony for a soldier mariner or gūner to depart frō his captain 22 Felonie by receiuing or releeuing of Iesuites or Priests 23 Felonie for making of purueiance without warrant 24 Felony by vnlawful purueiance of sheepe 25 Felony by making purueyance without appraisement 26 Felony by taking carriage contrarie to his commission 27 In what case forging of euidence is felonie 28 In what case a banished rogue shal be a felon 29 Felony by practising of coniuration witchcraft inuocation c. 30 Felonie in hunting in the night or with visors and denying of it 31 Felony by vnlawfull assemblies aboue twelue persons c. 32 Felonie in wandring souldidiers or mariners that will not settle to worke 33 Felonie in imbeciling of the Kings Armour Ordnance Shot c. 34 Felonie in cutting downe Powdike 35 Felonie in not taking the othe for the King or not entring into bond 36 Felonie in forcible carrying any person out of Cumberland c. 37 Felonie in breaking of prison Principall and Accessorie Fol. 141. 1 There is no Accessorie in high Treason 2 Accessory before the offence committed 3 Procurement of felony 4 Comming purposely to doe Manslaughter 5 A will to assist a felon 6 In company but not assenting to a felonie 7 Holding a man vntill hee be slaine 8 One thing commanded and another effected 9 Counselling to rob one and another is robbed Commaunding to beat one and another is killed Commaunding to burne one house and another is burned Counsell to doe one act and another is done The felonie commanded committed in another manner 10 The felonie commaunded countermaunded 11 Counselling to poison one and another is poysoned 12 A commanding or ayding to rape or robberie 13 Accessories after the offence What act of the Accessorie maketh him a felon 14 Receit of a felon attainted in the same countie 15 Receit of a felon attainted in another countie 16 Indictment and triall of an Accessorie in one countie to an offence done in another 17 Receiuing of stolne goods 18 Receiuing of a felon 19 Accessory to an Accessorie 20 Rescue of a
Lord shall haue a Writ of Escheat and where he may enter 52 The forme of a Writ of Escheat 53 The kings remedy for lands escheated vnto him An office for those lands which doe escheat for Felony 54 The wiues forfeiture of title of Dower 55 What the appellee that wageth battell shall forfeit 56 A Rent-charge pro consilio not forfeited 57 The forfeitures of an outlaw Corruption of Blood Fol. 239. 1 Corruption of Blood salued by Parliament only 2 Where corruption of blood shall preiudice tenant by the courtesie 3 The eldest sonne attainted during his fathers life 4 Where attainder but no corruption of blood Restitution of stolne goods Fol. 240. 1 Restitution of goods vpon Fresh suit 2 What conuiction shal be sufficient to giue the owner restitution of his goods 3 Where the owner shall haue restitution 4 Before whom and by whom inquirie of Fresh suit is to bee made 5 Restitution vpon attainder by indictment Damages in Appeale Fol. 242. 1 The punishment of the appellant and the abettors when the appellee is acquit No Essoine for the appellant in an appeale of death 2 The appeale must bee commenced vpon malice 3 The statute of 13. Ed. 1. extendeth to all Felons 4 The defendant in an appeale acquited by battell 5 Where the accessarie in an Appeale shall recouer dammages 6 Where the defendant is said to acquit himselfe in due manner and where not 7 Acquitall at the Kings suit is only in appeale 8 What Iustices may inflict the penaltie vpon the Appellant 9 The dammages for seuerall persons assessed seuerally 10 Where the appellant shall pay a fine to the king 11 In what cases inquiry shall be made for the abettors 12 What pleas the abettors may plead 13 Proces against the abettors Nonsute in the proces against the abettors 14 A writ against the abettors by the appellee 15 Procurers of indictments for suits in spirituall courts A Writ of Conspiracie Fol. 245. 1 In what case a Writ of Conspiracie doth lye 2 Conspiracie maintenable vpon an acquitall in an indictment or appeale 3 The indictment must be false which giueth the Writ of Conspiracie 4 Conspiracie doubtfull whether true or false 5 The conspirators do become indictors A Iustice of Peace A giuer of Euidence 6 Who be conspirators 7 A Conspiracie must bee by more then one Where only one shal be charged in Conspiracie 8 No Writ of Conspiracie against the Husband and the Wife 9 The forme of the Writ of Conspiracie 10 The writ of Conspiracy for the accessarie 11 Barres in a writ of Conspiracie 12 Iudgement in Conspiracie A villanous iudgement 13 Inquiry of Conspiracie by Iustices 14 Inquiry of Conspirators at the kings or parties suit 15 Procurers of an indictment or an appeale in a forraine county 16 An offence supposed to bee done in a place where there is none such The Coroner and his authoritie and dutie in Felonies c. Fol. 249. 1 The office and duty of a Coroner 2 The Writ de Coronatore Eligendo 3 Who shall be Coroners and by whom they shal be chosen 4 Whether Coroners ought to be knights 5 Causes to remoue a Coroner 6 Where a Coroner shall haue fee and where not 7 What things Coroners shall inquire of 8 A Coroner shall execute his Office in his owne person A Câ—â—oner shall see the dead body A body buried taken vp againe 9 A Coroner must presently doe his office 10 A Coroner shall onely enquire of the death of a man A man slaine in an arme of the Sea A Coroner concealing or not apprehending a Felon 11 The force of a Coroners Record Which Coroners Record shall be preferred Abiuring before the Coroner Confession of breaking of Prison before the Coroner 12 Who ought to appeare vpon the Coroners Inquisition 13 The Coronour with the Sherife may take Appeales 14 Stopping vp of a place of daunger by the Coroners commaundement 15 Where the presence of all the Coroners is requisite and where but some one of them 16 The Coroner must record the euidence and bind the party to giue it 17 Inquiry of a man slaine within the Kings House and Verge 18 One man Coroner of the Kinges House and the Countie Who shall be Judge in Treason and Felony Fol. 253. 1 The King ought not to bee iudge in Treason or Felony What men of condition Iudges ought to be 2 None shall make Iudges but the King 3 Iudges vpon the arraignement of the Peeres of the Realme 4 Iudges of offences that are done in the Kings Pallace 5 Iudges of Conspiracies made to destroy the King or any Lord c. 6 Iudges within the Verge 7 Iudges of Treason committed out of the Realme 8 Iustices of Gaole deliuerie Iudges in Felony 9 Iudges of Nisi prius Iudges in Felony c. 10 Speciall commissioners Iudges at the arraignement of a Murderer 11 Iudges of piracie or offences done vpon the sea 12 Iustices of Peace Iudges in Felony 13 The Lord of a Mannour Iudge in Felony Infangtheefe Outfangtheefe 14 A Felon first executed and then iudged FINIS
of their office or occupation Nor to any Liueries or Badges giuen in the defence of the King and his Realme Nor to the Constable or Marshal for giuing any Badge Liuerie or token for any feats of armes to bee done within this Realme Nor of any Wardens of the Marches toward Scotland for any Badge Liuerie or token by thē giuen frō Trent Northward at such time onely as shall be necessarie to leuie people for the defence of the Marches St. 7. H. 4. 14 And by the stat of anno 7. H. 4. it was ordained That no congregation or companie shall make any Liuerie of cloth or of hats at their owne costs vpon paine that euerie of the same congregation or companie shall forfeit fortie shillings except Guilds and Fraternities and also people of Artes and Sciences within Cities and Boroughes which be ordained to a good intent 13 As the wisedome of the Realme hath established from one age to another the foresaid lawes and statutes Publishing inquiring of and punishing of maintenāce for the repressing or snibbing of Champertie Embracerie buying of titles and all other sorts of Maintenance so hath she prouided trumpets to sound out and publish those laws into the ears and sinke them into the hearts of all people and secondly shee hath assigned watchmen and sentinels to sée who infringed those lawes and lastly she hath ordained Censors and Iudges to punish the offendors therein as it appeareth by the before specified statute of anno 32. St. 32 H. 8. 9 H. 8. wherby it is enacted That the Iustices of Assise shall in euerie Countie within their circuits two times in the yeare viz. in the time of their sittings for taking of Assises or deliuerie of the Gaoles cause open proclamation to be made as well of the said statute and euerie thing therin contained as also of all other statutes heretofore made against vnlawfull maintenance champertie embracerie or vnlawfull retayners to the intent that no person hearing the same should be ignorant or misconisant of the dammages and penalties therein contained And by the former rehearsed statute of anno 8. St. 8. Ed. 4. 2 E. 4. it is ordained That euerie person which will sue against any other for any offence committed contrarie to that statute or any other of the premisses viz. any other ordinance or statute before that time made against any persons for giuing or receiuing of Liueries or Badges before the Kings Iustices in his Bench before the Iustices of the Common Pleas Iustices of peace in their Sessions Iustices of Oier and Terminer and Gaole deliuerie Iustices of the countie Palantine of Lancaster and Chester and in the Court of Hexamshire and in the Court of the Bishop of Durham in the Countie Palatine of Durham shall be admitted thereunto by the discretion of the said Iudges to giue information for the king of any of the premisses committed within the iurisdiction of the same Courts And euerie Informer shall be admitted to sue for the King and himselfe action or actions vpon the same by information in any of the said Courts against as many such offendors in one Bill of Information as liketh him which Information shall be in stead of a Bill or originall writ wherein such Proces shall bee awarded as in an originall writ of Trespasse but that in the Counties Palantine of Lancaster and Chester nor in Duresme no Exigent shall be awarded vpon any information suit or proces to be made by force of this ordinance And if any be or any Outlawrie thereupon pronounced the same shal be void without any writ of Error And if any of the offendors be present in any of the said courts any of the Iustices may cōmaund him to be brought to answer to such bill vpon such information by an othe first to be taken vpon a booke by such informer before some one of the Iudges that his complaint is true without any other or further proces therein And euerie of the same Iudges within his iurisdiction may by his discretion examine euerie of the defendants vpon such information and iudge him conuict as well by examination as by triall and the King shal haue the one halfe of the forfeiture if it be not in a citie or towne corporat that hath the same by the grant of the king or c. and the informer the other halfe which also shall recouer his costs by the Iudges discretion and execution thereof as in recoueries vpon debt or trespas wherin no Essoine or Protection shall lye And the Maior Sherife Bailife or other chiefe officer of euerie citie borough towne or port within this realm hauing power to heare and determine personall pleas in the court holden before them or any of them within any such towne haue authoritie to receiue information of any person which offends in the premisses and to heare determine as wel by examination as by triall all things done concerning the same by or to the inhabitants within the iurisdictiō of the same court to put this stat for those offences prouided in execution And the King shal haue the one moitie of all penalties forfeited by the said stat and the Informer chiefe officers of such citie borough c. shall haue the other moitie equally to be diuided betwixt them And the said chiefe officers part shal be imployed to the vse the said citie borough towne or port c. And sithence the foresaid lawes statutes by one other stat ordayned an 33. Iust of peace may inquire of and punish maintenance H. 8. and confirmed an 37. H. 8. it was enacted St. 33. H. 8. 10. 37. H. 8. 7. That Iust of peace at their Quarter Sessions shal haue authoritie to inquire as wel by the othes of xij men as by information giuen to them by any person or persons of defaults contempts offences cōmitted against the lawes statutes made and prouided concerning or in any wise touching retainers giuing of liueries signs tokens or badges maintenance embracerie c. and euery of them to heare determine the said defaults offences c. And vpon any information touching the penalties or any of them to make proces by Venire fac ' one Capias an Exigēt vnder their seals against euery such person persons against whom such information or presentment shal be had for their apparance before them in their Sessions to answer to such information or presentment as shall be there made And if the person or persons so accused by information or presentment shal be conuicted vpon such information or c. by confession or verdit of xx men then the said Iust haue power to giue iudgemēt against euery such offendor so conuicted of imprisonment forfeiture of money or both of them as are limited by the said seuerall statutes for such offences whereof they are conuict and to cause execution therof to be made accordingly Why the pursuing of maintenance is left out