of the Iurors and that the Iuror in respect thereof doth beare an extraordinarie affection and is to make a recompence to the same partie and that therefore in this triall hée will fauour him and be a meane of Periurie and therefore if the Iuror be challenged for that cause he shall be drawen And some doe affirme the same cause of challenge and feare of Periurie to be 7. H. 6. 40. 19. H. 6. 66. if a Iuror hath béene godfather to either of the parties to that triall or to any childe of his 14 The Lawe expecting to be satisfied per Veredictum Iuratorum of the trueth of such causes as doe come to an issue dooth carefully foresée that those Iurors who are to deliuer the trueth by their verdict Periurie suspected in respect of ignorance of the cause should either before the time of the triall vpon their owne priuate knowledge or by their Euidence at the time of the triall be certainely informed of that trueth of the thing in question lest by ignorance mistaking falshoode for trueth they should slide into Periurie And because those that be dwelling or haue some land where the land lease or thing in question doth lie are more likely to haue intelligence of the trueth of the cause in question both to satisfie themselues and informe their Companions than other strangers of the same Countie are who dwell farre off the Lawe hath ordained by the Statute of Anno 27. Elizab. That there shall be sixe sufficient Hundredors impannelled vppon euery Issue ioyned which is to be tried in any of the Courts of the Kings Bench Stt. 27. El. 6. Common Pleas and the Exchequer Want of Hundredors or before the Iustices of Assise in all cases where euerie Iuror by the auncient lawes of this Realme ought to haue fortie shillings of fréeholde at the least And that at or vppon the triall of any personall action there shall two sufficient Hundredors at the least appeare And for that cause if in those cases there be not so many Hundredors at the least the Lawe doth conceiue they be ignorant of the truth of the Issue in triall And to that end for the auoiding of Periurie she will reiect the whole Iurie if they be challenged And so it is in an Assise where the plaintife is to be put in possession per Visum Iuratorum if he recouer or in any action where the Iurie is to haue the view of the land in question 8. Ed. 3. 69. Fitz. Chall 102. 169. if the same Iurors Want of the view or some of them had not the view of the land in question nor did know it before the Lawe will suspect that they will commit Periurie if they should be sworne séeing they be ignorant of the land and know it not in specie And therefore vpon challenge they shall be remooued 1. R. 3. 4. 15 Because our Law-makers haue in seuerall ages found by experience that nothing is a greater motiue enticement Periurie in respect of pouertie or rather inforcement to Periurie than néede and pouertie Therefore they haue endeuoured by many Statutes to prouide that such as be returned of Enquests should not onely be men of good behauiour and credite but also of conuenient liueliehoode estate and abilitie to liue of themselues for that Necessitie which hath no lawe nor bridle should not compell them to sell truth for rewardes nor to plunge themselues into Periurie for bribes And for the preuention of this Periurie in poore persons and such as bee of meane and weake estate Stt. 21. Ed. 1 by a Statute made Anno 21. Ed. 1. it was ordained That no Shiriffe Vndershiriffe or Bayliffe of Libertie shall put in any Recognisaunces of Assises Iuries Enquests or Attaints Iurors impanelled that shal passe out of their owne Counties that shall passe out of their proper County any person of their Bayliwickes except he hath lands and tenements to the yearely value of a hundred shillings at the least or that shall passe within the Countie except hée hath lands to the yearely value of xl s. And for the same cause vpon the same reason of preuention of periurie in poore and néedy persons by a Statute made Anno 3. H. 5. it was established St. 3. H. 5. 3 That no persons shall be admitted to passe in any enquest vpon triall of the death of a man or in any enquest betwéene partie and partie in plea reall or in plea personall whereof the debt or dammages declared do amount to xl Markes if the same person hath not lands and tenements of the yerely value of xl s̄ aboue all charges so that he be challenged for that cause by the party But by the Statute of An̄ 23. H. 8. St. 23. H. 8. 13. euery person being the Kings naturall subiect borne which by the name of a Citizen a fréeman Iurors to try felonies in corporat townes or any other name doth inioy the liberties of any Citie borough or town corporat where he dwelleth being worth in goods to the cléere value of xl li. shall be admitted in triall of Murders and felonies in euery Sessions and gaoles of deliuery kept in and for the libertie of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this Act extendeth not to any Knight or Esquire dwelling abyding or resorting in or to any such citie borough c. And by the Statute of An̄ 27. Eliz. it was enacted Sta. 27. El. 6. That in all cases where any Iuror to bee returned for the triall of any issue or issues ioyned in any of the Courts of the Kings Bench common Pleas the Exchequer or before Iustices of Assise by the Lawes of the Realme now in force ought to haue estate of fréehold in lands Where Iurors must haue 4. li. land tenements or hereditaments of the cléere yerely value of xl s̄ in euery such case the Iurors that shal be returned shall euery of them haue estate of fréehold in lands c. to the cléere yearely value of foure pounds at the least out of auncient demesne within the Countie where the issue is to be tried By the Statute of 11. H. 7. it is prouided St. 11. H. 7. 21. That no person shal be impannelled summoned or sworne in any Iury or Enquest in Courts within the citie of London Iurors in London except he be of lands tenements goods or cattels to the value of xl Markes And no person shall be impannelled summoned or sworne in Iuries or Enquests in any Court within the said Citie for lands or tenements or action personall wherein the debt or dammages amounteth to the summe of xl markes except he be in lands tenemēts goods or cattels to the value of one hundred marks St 19. H. 7. 13. By the Statute of Anno 19. H. 7. it was ordained That euery of the xxiiij persons dwelling within the shire where any riot
verdit or misdemeanors shall happen to be made shall haue full power to compell such Iurors and euery of them vpon paine of imprisonment to be bound by Recognisance in a certaine summe of money by their discretion to be limited that the same Iurors and euery of them shall personally appeare at a certaine day by the same Iusticiar Steward or other officer to be limited before the Lord President and other of the Councell aforesaid for the time being then and there to abide and stand to such direction and order as the same councell shall make ordaine and decree of in and vpon the same And the same councell shall thereupon haue authoritie by examination or otherwise to heare and determine all and euery such cause and shall haue like authoritie to commit euery of the same Iurors to prison or other punishment as shal be thought meet by the discretion of the said counsel or otherwise assesse or taxe euery such Iuror to his fine and ransome by the same discretion to be paied and leuied of their lands goods and cattels to the vse of the King Periurie committed by witnesses 20 Hauing written of the restraint and punishment of periurie in Iurors consisting of twelue persons at the least impannelled or sworn to deliuer their verdict according to their euidēce I am now to expresse what punishments the law doth inflictt vpon such which doe come one by one as deponents or witnesses to testifie the truth and to informe the Iudge or the Iurie of the veritie of the matter in issue or question according to their knowledge whereof euery man by himselfe may be called singularis testis though there be more witnesses sworne in that cause And séeing that iustice cannot be executed without the knowledge of the truth of the cause in question that truth is in most cases only to be deliuered by the othes and testimonies of such parties as were witnesses priuie or best acquainted with the matter in variance Therefore first it is to be obserued that the wisdom of the law hath thought it necessarie to prouide that such witnesses may be compelled vnder a great paine to appear in court and testifie their knowledge concerning such matter in question as by the Statute made Anno 5. A witnes vpon proces serued shall appeare El. it was ordained St. 5. El. 9. St. 29. El. 5. That if any person vpon whom any proces out of any of the courts of Record within this Realme or Wales shal be serued to testifie or depose concerning any matter depending in any of the same courts and hauing tendered to him according to his countenance or calling such reasonable sums of money for his costs and charges as hauing regard to the distance of the places is necessarie to be allowed in the behalfe doe not appeare according to the tenor of the said Proces hauing not a lawfull and reasonable let to the contrarie then the partie making default shall forfeit for euery such offence x. l and shall yéeld such further recompence to the partie grieued as by the discretion of the Iudge of the court out of the which the said proces shall be awarded according to the losse and hindrance that the partie which procured the said proces shall sustaine by reason of the non appearance of the said witnesse the said seuerall summes to be recouered by the partie so grieued against the offendor by A.I.B.P. c. in any of the K. courts of Record wherein no W.E. or P. c. 21 There were seuerall statutes made during the raignes of king H. 6. K. H. 7. and K. H. 8. against Periurie and the procurers and committers of periurie and lastly one was ordained Anno 32. H. 8. St. 32. H. 8. 9 against such as should suborne witnesses to the hindrance of Iustice and the procurement of periurie Sithence the making whereof for that the penaltie therein is small towards the offendors in that behalfe the said offence of subornation and sinister procurement of false witnesses did neuerthelesse greatly increase and by reason of the wilfull Periurie committed by the same suborned witnesses diuers persons did sustaine disherison and great impouerishment as well of their lands and tenements as of their goods and cattels The penaltie for procuring of wilfull periury in witnesses for the redresse and more sharpe punishment whereof St. 5. El. 9. 29. El. 5. by a Statute made Anno 5. El. it was enacted That all and euery person and persons which shall vnlawfully and corruptly procure any witnes or witnesses by Letters Rewards Promises or by any other sinister and vnlawfull labour or meanes whatsoeuer to commit any wilfull and corrupt Periurie in any matter or cause whatsoeuer depending in suit and variance by any Writ Action Bill Complaint or Information in any wise concerning any lands tenements or hereditaments or any goods cattels debts or dammages in any of the courts of the Chauncerie Starre chamber White hall or in any other of the Kings Courts of Record or in any Léet view of Franke pledge or Law day Auncient demesne Court Court Hundred Court Baron or in the Court or Courts of the Stannerie in the countie of Deuon and Cornewall Or shall likewise vnlawfully and corruptly procure or suborne any witnesse or witnesses which shall bée sworne to testifie in perpetuam rei memoriam Then euery such offendor or offendors shall for his hers or their said offence béeing thereof lawfully conuicted or attainted forfeit fourtie pounds to the King and the partie grieued hindered or molested by reason of any of the offences aforesaid 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 bée allowed And if it happen any such offendor or offendors béeing so conuicted or attainted as is aforesaid not to haue any goods or cattels Lands or Tenements to the value of fourtie pounds then euery such person or persons so conuicted or attainted of any of the offences aforesaid shall suffer imprisonment one halfe yeare without Baile or Maineprise and stand vpon the Pillorie one whole houre in some Market Towne neere or next adioyning to the place where the offence was committed in open market there And no person béeing so conuicted or attainted shall bée from thenceforth receiued as a witnesse to bée deposed in any court of Record within any of the Kings dominions of England Wales or the Marches of the same vntill the Iudgement giuen against him or them shall bée reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued shall recouer his or their dammages against all and euery such person and persons as did procure the said iudgement so reuersed to bee first giuen against them or any of them by action to be sued vpon his or their case according to the course of the common Law St. 5. El. 9. 22 If any person or persons either by the subornation
or meanes of any others or by his owne act consent or agréement shall wilfully and corruptly commit any manner of wilfull Periury Periury committed by witnesses for Bankrupts by his deposition to be taken before the said Commissioners or the greater part of them as is aforesaid Then the party or parties so offending and all and euery person and persons that shall vnlawfully and corruptly procure any such vnlawfull wilfull and corrupt Periurie shall or may therefore be indited in any of the Kings Courts of Record and after his or their conuiction thereof shall incurre such forfeiture and receiue and haue such paines and punishment as are limitted by the statute made concerning Periury St. an̄ 5. El. 9. Anno 5. Eliz. 9. Co. li. 5. f. 99 28 A man cannot be indited for Periurie vpon the foresaid statute of 5. Periury committed vpon an indictment of Riot El. for giuing false euidence on his oath to the Enquest at a Sessions vpon an Indictment of Riot For the statute was ordained against procurers of Periurie in a matter depending in suit and variance by any Writ Action Bill Complaint or Information and so procurement of Periurie vpon an indictment is out of this braunch of the said statute And the second braunch of the same statute touching committing of Periury shal haue the same construction which the first hath though it be not there in words and shall haue reference to the first And it shal be expounded as if the words of the statute had béene If any person shall wilfully and corruptly commit any wilfull Periurie in any cause depending in suit by any Writ Bill Action c. And the same law is if a man commit wilfull Periury Periury vpon an indictment of Felony vpon euidence giuen to the great Enquest vpon an indictment of Felony he is not to be punished by force of the foresaid statute of Anno 5. Eliz. Periury in prouing a suggestion for a prohibition 29 If wilfull Periurie be committed in the Kings bench 7. 8. Eliz. Dyer 243. by any witnesse produced to proue a Suggestion for a Prohibition there graunted against an Ecclesiasticall Iudge according to the statute of 2. 3. E. 6. St. 2. E. 6. 13 whereby the party is staied of this consultation this shall not be examined and punished in the Starre chamber for the statute of 3. H. 7. St. 3. H. 7. 1 which maketh mention of such things as the Court of Starre chamber is to hold plea of prouideth no more punishment by speciall words for Periurie then it doth for Murder or Rape There is a prouiso in the foresaid statute of Anno 5. El. That the Lord Chancelor and others of the Qu. Counsell shall and may procéed in the punishment of all offences in such wise as they might haue done and vsed to do before the making of the said Act to all purposes so that they set vpon the offendors no lesse punishment then is contained in the said Act. 30 A Bill of Periurie may be sued in the Chancery for a periurie committed in the same Court A suit vpon periury in the Chancery contrary to the foresaid statute of Anno 5. 12. El. Dy. 288. El. and if the defendant do plead vnto it not guilty he shall be sworne to his plea and also shall answer to Interrogatories as it is vsually done in the Starre chamber for the L. Chauncellor had absolute power before the said statute of Ann̄ 5. El. to punish Periury And therefore by a prouiso in the said statute his power therein is not restrained by the same statute And if the Court of Chauncery will examine Periury committed there it must be done by a bill in Latin and pleaded in Latin and the issue shal be ioyned there and tried in the K. Bench as it is vsed in the like cases Where periury shal be punished in the tēporall court where in the spirituall 31 There is no remedy or punishment for Periurie in a spirituall Court against indictors that do endite a man of felony which be periured 22. H. 8. Kel 39. or against a Iury which doth giue a false verdict betwéene party and party And if a suit be commenced in the spirituall court against an offendor in Periurie in either of those cases he may haue a prohibition for this periury doth rise vpon a cause that is temporall viz. the Treason or Felony Debt Trespas or plea of land and for this periury the offendors shall be punished by attaint by the common law or otherwise And so it is if a man be defamed by a false indictment there is no remedy in the spirituall Court for his defamation for that it groweth vpon a matter which is temporall But where the Periury doth rise vpon a matter which is spirituall as vpon a Testament Matrimony or Legacie or such like then the spirituall Iudge hath authority to punish it and in that case a Prohibition will not lie And as there is no punishment in the Ecclesiastical Court for Periury that doth rise vpon a cause that is temporall So the Law hath prouided Co. lib. 4. 20 that defamation Defamation which is another euill fruit of a malicious and corrupt heart and of a leud and venomous tongue shall not be punished in the Ecclesiasticall Court vnlesse it concerne matter that is méerely spirituall and determinable in the Ecclesiasticall Court as to call a man Hereticke Schismaticke Adulterer Fornicator c. and vnlesse it doth concerne matter that is méerely spirituall onely For if such a defamation doe concerne any thing that is determinable at the common Law the Ecclesiasticall Iudge shal not hold plea thereof And yet if such a defamation be méerely spirituall and onely spirituall notwithstanding he that doth sue in the Ecclesiasticall Court for being defamed cannot sue there for recompence or dammages but only for the punishment of the offence ⧠Maintenance Champertie Embracerie and Buying of Titles MAintenance is where a man giueth to another that is demaundant What maintenance is the enormities thereof or tenant plaintife or defendant in any suit or to any other in his behalfe or to his vse any summe of money or other reward for to maintaine his plea or suit Or otherwise vseth persuasion or maketh labour for him or vseth other meanes to countenance aid or assist him when he himselfe hath nothing therewith to doe Which is an offence that the wisdome of the Realme from age to age hath condemned and hath indeuored to inflict diuers punishments vpon the transgressors therein as it may appeare by the statutes of West 1. West 2. 28. Ed. 1. 33. Ed. 1. 8. H. 6. 19. H. 7. 32. H. 8. 18. El. The law doth so greatly desire the continuance of peace betwéene one member of the Commonweale and another so much condemneth variance suits without cause that many times and in many causes the plaintife is amerced
officers requisit to be had for the spéed of the said suits which shall do their dueties without any rewards for their counsels helpe and businesse in the same And the same law and order shal be obserued in all such suits to be made before the K. Iustices of his Common pleas Barons of his Exchequer and all other Iust in Courts of Record where any such suits shal be 30 As Maintenance in the cases aforesaid is lawfull and iustifiable Maintenance in respect of kindred or alliance in respect of the parties priuat profit or interest in the thing in question or when it is done without malice or hope of profit vpon a charitable disposition so is it in diuers cases allowable in regard of the linke or bond of nature whereby one person is by loue or dutie tied to another 34. H. 6. 26. 6. Ed. 3. 33. as the father may maintaine his son and heire and giue money of his owne in defence of him or his title or suit for he is bound to find him but so he may not doe for another kinsman And the sonne may maintaine the father and mother and one brother another and one néere kinsman another 21. H. 6. 16. 14. H. 7. 2. 20. H. 6. 1. 19. Ed. 4. 3. 21. H. 6. 16. and one ally another in some cases and in some sort as if a man be impleaded another that is his brother or kinsmā or of his alliance may go to the bar with him stand by him comfort him or he may ride to his counsell with him or he may request a man that is learned in the law to bée of counsell with him in that cause 9. Ed. 4. 32. but he must not retaine that learned man nor giue him any mony of his own to be of counsel neither must he giue or promise money to the Iurors or any of them to giue their verdict for him for then it is vnlawfull maintenance in him so it is in a stranger who hath nothing to do in that cause if he doe goe to the barre with him that is impleaded or do stand by him of purpose for to countenance the cause in question or doe request a learned man in the law to bée of counsell with him or doe giue money to any of the Iurors for their verdict this is vnlawfull Maintenance in him And in the cases aforesayd and all other cases of Maintenance Vnlawfull maintenance is continuall this vnlawfull Maintenance is a continuall Maintenance during that suit vnlesse the partie grieued doe in the meane time release the same But if the same Maintenance bee in respect of alliance and that hee who is supposed to bee the maintainor hath maried the daughter sister néece or other kinswoman of one of the parties to the first suit wherein the maintenance was supposed be he must pleade 6. Ed. 4. that his wife was liuing at the time of the maintenance supposed to be for if she were then dead the alliance betwéene them is dissolued and then he had no cause to maintaine that suit but shal be punished as a stranger And yet in that case 14. H. 7. 2. if the same woman hath any issue of her bodie begotten who may inherit the land of him whose suit that husband of the deceased woman and the father of that issue did maintaine then is the maintenance lawfull in any action brought against the same partie in respect of the kindred and also of the benefit that may come to his owne issue And in a writ of maintenance it is a good plea for the defendant to plead Maintenance in respect of gossiprie that hee was gossip to him whose cause he was supposed to maintaine 6. Ed. 4. 5. for that gossiprie is in law adiudged a kind of affinitie Maintenance in respect the partie could not speake English 31 A. brought a writ of Maintenance against B. and supposed 34. H. 6. 26. 15. H. 7. 2. that the same B. did maintaine L. in an action which he brought against the said L. on the part of the said L. Whereunto the sayd B. pleaded that the same L. was a Dutchman borne out of the Kings obedience and could not speake the English or Latine tongue and therefore being acquainted with B. the defendant who could speake the Dutch tongue he desired him to bring him to some man learned in the law to be of his counsell in that suit and to informe that learned man of the truth of his cause in question whereupon hee brought him to one M. a man learned in the law and opened the truth of his case vnto the said M. as he receiued it from the said L. in Dutch which is the same maintenance And this was adiudged a good plea in barre and a lawfull maintenance for it is a déed of charitie to aid and helpe him who could not helpe himselfe And the Dutchman had no meanes to helpe himselfe being a straunger borne and not vnderstanding the English nor Latine tongue but by the assistance and information of some English man Maintenance in a professor of the Law 32 If a Serieant at law an Apprentice or other Councellor 6. Ed. 4. 5. being retained for his fee doe giue vnto his Client the best counsell that he can for the recouerie or defence of the suit which he vndertaketh according to the ordinarie course of the law or doth enforce the euidence at the barre so much as he can at the tryall of his clients cause this is lawfull maintenance and iustifiable But if he doe pay or promise money to any of the Iurie to giue his verdict for his client or do threaten any of them to be killed beaten 22. H. 6. 6. or otherwise euill intreated if they do giue their verdit against his client or if he do spēd 11. H. 6. 13. or do offer to spend his own mony in defence of his clients cause this is vnlawful mainnance and punishable according to the before rehearsed stat of ann 1. R. 2. for those things he doth not as a lawyer or according to the course of the law nor by the warrant of law but by iniustice and vpon his owne corruption and wrong But in the first specified case if a man that is not learned in the law 22. H. 6. 5 hauing himselfe no interest in the cause in question will declare to the Iurie or to the partie or to his counsell the cause in question and the circumstances thereof as a man learned in the law this is vnlawfull Maintenance in him though hee doe it as well as a man learned in the law for hee doeth it vpon Maintenance where the learned man doeth it for his fee. And so it is if a man that hath land in suit or question will bring and shew his euidences and writings to a Nobleman Fitz. Maint 21. Gentleman or other man of countenance that is not learned in the law and
desire to haue remoued or put out of his Iurie certaine persons And hée may therein haue more fauour than either of the parties to a suit shall haue in other tryals betwéene partie and partie For being arraigned of felonie he may haue a peremptory challenge Peremptorie Challenge in fauour of life which is to say challenge without shewing cause And though he can shew no cause to challenge him that he doth challenge yet if his phantasie or affection doth not stand vnto him by this peremptorie challenge he may cause him to bee remoued and put from the Iurie And by the common law this peremptorie challenge was permitted to the number of 35. persons viz. to so many as would make vp full thrée Iuries sauing one man But sithence by a Statute made Anno 22. H. 8. St. 22. H. 8. 14. Anno 32. H. 8. 3. it is enacted That no person arraigned for any petit Treason Murder or Felonie shall be from henceforth admitted to any peremptorie challenge aboue the number of twentie And so by this statute the number is abridged in three special cases viz. in Petit treason Murder and Felonie And so for High treason peremptorie challenge did remaine as it was at the common law vntill it was wholly taken away by the Statute of Anno 33. H. 8. St. 33. H. 8. 23. which did ordaine That peremptorie challenge should not thenceforth be admitted or allowed in cases of High treason or Misprision of treason And yet after that challenge was againe reuiued in cases of High treason by a statute made Anno 1. 2. P. M. St. 1. 2. P. M. 10. whereby it was enacted That all tryals hereafter to bée had awarded or made for any Treason shall bee had and vsed onely according to the due order and course of the common Lawes of this Realme and not otherwise And then if all tryals in Treasons shall bée according to the common Law peremptorie challenge shall be allowed vpon trial according to the course of the common law as well in Petit treason as in High treason A man being arraigned of High treason 32. H. 6. 20 14. H. 7. 19 and pleading not guiltie certaine of the Iurors were sworne and tried the residue being drawne forth by challenge and the Enquest remaining for default of Iurors at another day the defendant did peremptorily challenge some of those that were first sworne and the challenge was allowed in fauour of life 2. R. 3. 13. And in an Appeale of Robberie the defendant challenged a Iuror for a cause which was tryed against him and then the Iurie remained for default of Iurors and at another day hee challenged the same Iuror peremptorily and he was allowed so to do This peremptorie challenge is not to be taken but where the life of the prisoner is in ieopardie by the tryall And therefore if a man be outlawed of treason or felonie and brought to the barre and there doth plead misnaming or some other plea in auoidance of the sayd outlawrie in that case he shal not haue his peremptorie challenge for that neither treason nor felonie is to be tryed by this issue because they were at an end before by the outlawrie Seuerance in challenge If two thrée foure or more persons be indicted or appealed and arraigned of one offence 9. Ed. 4. 27. Pl. Com. 100. and one enquest is charged to trye them al if one of those persons arraigned do challenge peremptorily any of those Iurors he shal be drawne and put out for them all though one or some other doe desire that he may be sworne for though they be all arraigned together yet in the iudgement of law it is seuerall arraignments for that their offences be seuerall and not one though they be indicted of one offence and so euerie of the prisoners shall haue his challenge so that he do not challenge peremptorily aboue the number of twentie persons But if the Court will it may diuide the panell and also the Tales and make them seuerall for euerie of the prisoners and then euery prisoners challenge shal be by it selfe and auaile himselfe onely that maketh it 2 Besides the foresaid peremptorie challenge which is grounded vpon opinion or phantasie without cause there is another kinde of challenge which is called Challenge vpon cause Challenge vpon cause and is not allowable but vpon reasonable and good cause ordained by the common lawes or statutes of this Realme Whereof one challenge which was at the common law and is also confirmed by statute is a challenge of the indictors for as Britton Britton saith when the defendant doth submit himselfe to be tryed by the countrey and the Iurors doe appeare at the barre they may be challenged and the prisoner may say 27. As p. 13. This man ought not to bée of my Iurie for he did indict me and I doe presume of him and of all my indictors Indictor that they doe carrie the same affection towards me now which they did when they indicted me and this exception is to be alowed in case of death And the same law is confirmed and in a sort augmented by the statute de proditionibus made Anno 25. Ed. 3. St. 25. E. 3. 3 by the which it was accorded That no indictor shall bée put in Enquests vpon the deliuerance of the indictées of Trespasse or of Felonies if hée be challenged for that cause by him that is indicted And as it may appeare this Statute is but a confirmation of the common law in this point and so to be taken fauourably 8. H. 4. 3. 7. E. 4 4 and by that meanes it may be extended as well to Treasons as to Felonies And also it may be construed as well where the prisoner is indicted arraigned vpon an Appeale as where hée is indicted and arraigned vpon the indictment though the same be not contained within the expresse words of the sayd statute Challenge for want of medietatē linguae 3 There is another challenge vpon cause which is to the Array and that is when an Alien is arraigned of Felonie and pleadeth to an Issue and the Enquest is returned all of English men this is a cause of challenge by force of the Statute of Anno 28. Edw. 3. St. 28. E. 3. 13 which did ordaine That in all manner of Enquests and proofes which be to be taken or made amongst aliens and Denizens be they Marchants or others as well before the Mayor of the Staple as before any other Iustices or Ministers although the king be party the one halfe of the Enquest or proofe shall be by Denizens and the other halfe of Aliens if so many Aliens be in the Towne or place where such Enquest or proofe is to be taken that be not parties nor with the parties in contracts pleas or other quarrels whereof such enquests or proofes ought to bée taken And if there be not so
infoelicitas in vijs eorum viam pacis non cognouerunt And againe speaking in their persons Psal 11. he saith Qui dixerunt linguam nostram magnificabimus labia nostra a nobis sunt quis noster dominus est And for that case the same king well obseruing the sea of mischiefes miseries and calamities which daily doe flow from euill tongues made his humble prayer vnto God to graunt him power to be watchfull of his owne tongue Psal 140. saying Pone custodiam ori meo et ostium circumstantiae labijs meis And when he perceiued that God had heard his prayer Psal 38. he said ioyfully Dixi custodiam vias meas vt non delinquam in lingua mea viz. I haue made a full resolution and promise to my selfe that I wil so vse and gouerne my spéech that I will neuer offend in my tongue And the said king telleth vs plainely that there is no other meanes to haue the comfort of this life Psal 33. and to enioy good daies in this world but to restraine the tong from speaking of euill the lips from powring out mischiefe and to séeke peace and follow it Prou. 18. And his sonne king Salomon confirmed the same saying Vita est mors in manibus linguae And though slaunderous speeches and menaces be but words and may be taken but only as a smoke a breath or blast of wind and so to vanish and be dispersed in the aire like dust yet experience doth teach vs that by the imbecilitie of mans iudgement and the corruptionn of his nature they be vsed as firebrands of priuat and open grudges quarrels conspiracies most other tragicall turbulent stratagems and therby a verbis ad verbera peruentum est And we seldome heare of any the said enormities effected but they tooke their beginnings of menaces threats slanders or other euill words which offences growing by menaces other spéeches tending to contention and the breach of the peace the whole bodie of this realm hauing déeply tasted the smart therof desirous to preuēt the like by a stat made an̄ 18. Stat. 18. E. 3. E. 3. did ordain that the K. Iustices amongst other articles shal be sworn in case any of what estate or condition they be come before thē in their Sessions with force armes or otherwise against the peace Sta. 2. E. 3. 3. or against the form of the statute therof made or disturbe execution of the common law or to menace the people that they may not pursue the law they shall cause their bodies to be arrested put in prison Menacers shal be imprisoned And in case they be such that they cānot arrest them the same Iustices shall certifie the K. of their names of their offence speedily so that he may therof prouide conuenient remedie There is another foule puddle that ouzeth frō the same corrupt gogmire distilleth out of a heart likewise infected with malice enuie but is deuised and practised by another mean thā the former which is by libelling secret slandering or defaming of another for this priuie backebiter doth not by words impeach his aduersarie in so manifest and turbulent maner as the cholerick menacer in his furie doth but seeming to sit quietly in his studie he doth more déeply pinch him infixeth a more durable wound into his fame credit than the other boistrous fellow doth into his bodie who in a moment threatneth to do more than peraduenture he after is willing or dareth to performe in an age The menacer layeth open his name his grief and standeth in the face of his enemy discouereth the corasiue of his mind doth thereby giue a forewarning to his aduersarie to prouide for defend himselfe But this secret canker the libeller concealeth his name hideth himselfe in a corner priuily stingeth him in fame reputation credit who then neither knoweth from whom or vpon what cause he receiueth his blows nor yet hath means therin to defend himselfe And whether this libelling Co. li. 5.125 secret slandering or defaming The enormities of priuie defaming and libelling be against a publike magistrat or a priuat person yet it may tend to the breach of the peace to the raising of quarels effusion of blood so may be a speciall impedimēt of that peace which all good policie endeuoreth to maintaine For if it be against a publike magistrat it is a great scandall offence to the king his chief magistrats the whole gouernment of the realm to assigne such an officer to rule and gouerne others who himselfe is void of gouernmēt and shall deserue to be impeached with such crimes as he shal be taxed with or shal be imputed vnto him by such an infamous libell And if it be but against a priuat person yet seeing that a libel or other note of infamie is inuented to defame him to tread his honor estimation in the dust to extirpate and root out his reputation credit from the face of the earth to make him a scorne to his enemies to be derided despised by his neighbors it doth greatly kindle the wrath of him of such as be of his kindred alliance true friendship vrge them to reuenge whereupon do ofttimes ensue grudges quarels fraies combats manslaughters Sometimes the malicious defamor powreth out his venim in writing by a scandalous booke ballad epigram or rime either in mitre or prose some other times by sons scofs iests or taunts diuers times by hanging of pictures of reproach signs of shame or tokens of disgrace néer the place where the party therby traduced doth most conuerse as the picture of the gallowes pillorie cucking stoole hornes or other such like In which cases the law hath prouided that the partie delinquent when he is found out discouered shal be sharply punished for he may either be indicted for the same offence by the ordinarie course of the common Law Or else a Bill may be exhibited against him in the Starre chamber The punishment of a secret Defamor where he shal be punished according to the qualitie of his demerits by fine imprisonment and if it be an exorbitant offence then by Pillorie losse of his eares whipping or c. or the party gréeued may haue an Action vpon the case against the offendor recouer his damages Lib. Intr. fol. 13. And in this case it is not material whether the Libel be true or false or the party scandalized thereby be lyuing or dead or be of good name or euill for though the libell be true the party defamed be euill yet our good Lawes be deuised to punish him such like euill men by a due course of justice after his offence is presented inquired of tried proued to his face before lawfull magistrates thereunto assigned and he is not to be carped at accused condemned in a corner behind his backe by
Leges Aluredi cap. 7. That if any man did strike or draw a weapon of iron to strike in the Kings pallace the King might it he pleased put him to death 29 Because they which vpon the Kings commaundement do come to his councell or vpon his summons doe resort to his Parliament doe make their repaire thitherto further the wealth and peace of the Realme it hath béen therfore thought reason that during the time of the said councel Parliament they should not be depriued of that peace which they endeaour to procure to others and themselues Assault vpon one which cōmeth to the Parliament Wherefore by a Statute made Anno 11. H. 6. Stat. 11. H. 6. 11. it was ordeined That if any assault or fray be made vpon any Lord Spirituall or Temporall Knight of the Shire Citizen or Burgesse which commeth to the Parliament or to the Kings Councell by his commaundement and there being and attending then Proclamation shall be made in the most open place of the Towne where the fray was made by thrée seuerall dayes that the partie which made such affraye or assault shall yéeld himselfe in the Kings Bench within a quarter of a yeare next after the Proclamation made if it be in the Terme tyme or otherwise at the first day of the Terme following the said quarter And if he doe not he shall be attainted of the deede and pay to the party grieued his double dammages to be taxed by the discretion of the Iustices of the same bench or by the inquest if it be needfull and shall make fine and ransom at the Kings pleasure And if he come and be found guiltie by inquest by examination or otherwise of such affray or assault then he shall pay to the partie grieued his double dammages found by the inquest or to be taxed by the discretion of the said Iustices and make fine and ransom at the Kings pleasure Assaulting the seruant of a Parliament man And by the Statute made Anno 5. H. 4. it was enacted St. 5. H. 4. 6. That he shall haue the like punishment which maketh assault or fray in the Parliament tyme vpon any meniall seruant of any Knight of the Parliament Citizen Burgesse c. which doth come to the Parliament with his master The libertie of the Clergie as a conuocation And by the Statute of Anno 8. H. 6. it was prouided St. 8. H. 6. 1. That al the Clergie which be called to the conuocation by the Kings writ and all their seruants and familiars shall fully vse and enioy such libertie or defence in comming tarying and returning as the great men and Commons of the Realme haue or are wont or ought to enioy which are called to the Parliament 30 Séeing the wealth and peace of the Realme doth chiefely consist in the due execution of Iustice which cannot be ministred without méete persons and places ordeined therefore for that cause the Law hath specially prouided that those persons and places which be designed to the same Administration of Iustice shall be so guarded and protected from force and violence offered vnto them or in them that shee hath inflicted déeper and more greiuous punishments to those who shall breake or disturbe the peace in the presence of those Magistrates or in those places than to them who shall breake the peace in the Kings own pallace where he is in person abiding or in the Parliament time ordeined for the making of Laws Assaulting a Iudge or Iuror And therefore it hath bene adiudged 22. Ed. 3. 13. That if one draw his sword to strike a Iustice assigned sitting in place of iudgement and be thereof found guiltie he shall forfeite his lands and chattels and haue his right hand cut off And likewise if one in the presence of the Iustices doe strike a Iuror he shall forfeite his lands and goods haue his right hand striken off and be committed to perpetuall prison And the same Law is if one of the Kings Iustices assigned doth arrest any person which hath made a fray before him and a straunger will rescue that prisoner whereby he doth escape in this case as well the prisoner as he that made the rescous shall be disherited and be perpetually imprisoned for that the attachment of such a Iustice is the Kings owne attachment in the construction of the Law Striking in time or place of Iustice And if one doe strike an other in Westminster Hall Fitz Cor. 280. 2. 3. P. M. Dy. 188. during the time that the Kings Courts do sit hee shall forfeite to the King his lands and goods haue his right hand cut off and bee committed to perpetuall prison 4. H. 7. 2. 31 In an action of Trespas of assault and batterie the defendant pleaded Arresting by watchmen that there were diuers felonies committed in those parts where he dwelt and he being watching in his house came into the high Stréete where the plaintife was at eleuen of the clocke in the night and the defendant came vnto him and laid his hands in peaceable maner vpon him to sée his face and when he perceiued that he was a true man he left him departed which was the same assault and batterie And this was allowed to be a good iustification for by the statute of Winchester watchmen may arrest Nightwalkers and also may appose them from whence they come and what they be but they must be such watchmen as be appointed by the Towne And so euery man may arrest Nightwalkers for it is for the good of the Common wealth The same law is in an action of Trespas brought of the assault and batterie of his seruant 4. H. 7. 18. 5. H. 7. 5. 2. Ed. 4. 8. whereby he did loose his seruice 3. daies and the defendant pleaded that A. was robbed at midnight of goods to the value of xl s̄ whereupon the said A. came to the Constable and prayed him to search for suspicious persons and to apprehend and arrest them and accordingly he did search and found the same seruant walking suspiciously in the stréete in the night and therefore he would haue arrested him but the said seruant fled and would not yéeld to the arrest and the defendant by the Constables commaundement pursued and tooke him This was adiudged a good plea in barre for when a felonie is committed the Constable or any others may arrest suspitious persons and if any that is arrested will not yéeld but assault him or them that do arrest him they may iustifie the beating of him for that he doth resist the peace and iustice of the Realme when he doth forciblie striue to flie and not to be iustified by it 30. Ed. 3. 4. 29. Ass p. 63. 28. Ed. 3. 92. 6. H. 4. 7. 32 If a man be assaulted and beaten Trespas for batterie before outlawrie and then be outlawed in an action of Trespas and after doth purchase his
good iustification for him though the Iustice of peace did erre in the awarding of the proces And the same law is if the Shirife doth erre in any warrant that he doth direct to the Bailife of a Libertie Arresting an offendor deliuering him to the Constable If a man do arrest an other 10. Ed. 4. 17. who he knoweth hath committed a robberie man slaughter or other felony do deliuer him to the Constable to carrie to the gaole and the Constable will set him at libertie or doth not carrie him to the gaole or that the same person arrested be rescued out of the possession or custodie of him that did arrest him yet in neither of the foresaid cases he that was arrested shall haue an action of False imprisonment against him that did arrest him for that there was no default in him that the offendor was not imprisoned according to his desert Imprisonmēt vntill he hath made an Obligation 50 An action of False imprisonment was brought for imprysoning the plaintife vntill he had made an Obligation of xl 2. Ed. 4. 19. pounds to the defendant and others vnknowen by duresse and this was adiudged maintenable for if the plaintife did not know their names he could not expresse their names for the Obligation is not the effect of this suit but the imprisonment and he shall not recouer dammages for the Obligation but for the imprisonment for that he is not yet damnified by the Obligation because when that is sued he may plead that it was made by duresse of imprysonment and so auoid it But if the action of False imprisonment be brought of an imprisonment vntil he had made a fine he shall recouer dammages for both for he is presently grieued by the fine and so is he not by the Obligation 51 If a master do imprison a man in a house 22. Ed. 4. 45. and deliuer the key of the doore of that house to his seruant The seruant not chargeable for the masters offence the partie imprysoned cannot haue an action of False imprysonment against the said seruant for the kéeping of the key But if the seruant that hath the key do know that the same partie were wrongfully imprysoned then he ought to let him go at libertie for the seruant is bound to obey his masters commaundement but in those things that be lawfull onely And if the seruant which kept the key did not know that the same partie was imprysoned in that house then vpon his plea of not guiltie he shall be excused in an action of False imprisonment brought against him by the partie imprisoned Imprisonmēt by force of a Iustices 52 If a writ of Natiuo habendo or a Iusticies be directed to the Shirif 2. H. 4. 24. he cannot iustify the impris of any man by force therof for they be but commissions to hold plea. And the bodie of a man shall not be arrested or taken but by proces awarded out of a court of record and by those Commissions the Shirises court is not made a court of record 9. Ed. 4. 30. 53 In an action of False imprisonment A warrant vpon a Supplicauit it is a good iustification for the defendant to plead that a Supplicauit came to the Shirife to apprehend the plaintife who made his warrant to the defendant to take him which he did accordingly And yet the Shirife can not giue his authority to an other to take suerty of him 5. H. 7. 6. 54 A Iustice of peace can not direct a warrant to apprehend him who hath broken the peace for he is to be punished by inditement Arresting him who would break the peace at the Kings suit or by action of Trespas of batterie at the partie grieued his suit But he may direct his warrant to apprehend him who he doth doubt meaneth to breake the peace in time to come and to bring him before himselfe or some other Iustice or else to commit him to prison for one Iustice of peace alone may doe his endeuor to preserue the peace before it be broken but being once broken it must be punished by inditement in the presence of diuers Iustices of peace or by action at the common Law Sta. 5. El. 4. 55 If any seruant woorkeman or laborer Imp. of a seruant for assaulting of his master shall wilfully or maliciously make any assault or affray vpon his master mistresse or dame or vpon any other that shall at that time haue the charge or ouersight of him or of the worke wherein he is appoynted or hired to worke and beeing thereof conuicted before any two of the Iustices of peace Maior or head officer of a towne corporat where the offence is committed or before either of the Lords Presidents of the North or Wales by the confession of the said seruant workman or laborer or by the witnesse and oath of two honest men Then euery such offendor shall suffer imprisonment by the space of one whole yeare or lesse by the discretion of two Iustices of peace if it be without a towne corporat if it be within a towne corporat then by the discretion of the Maior or head officer of the same towne corporat with two others of the discréetest persons of the same corporation at the least And if the offence shall require further punishment then to receiue such other open punishment so as it extende neyther to life or limme as the Iustices of peace in open Sessions or as the more part of them or the said maior or head officers or vj. or iiij at the least of the discréete persons of the same corporation before whom the offence shall be examined shall thinke conuenient for the qualitie of the said offence so committed 56 By which foresaid cases and many more Where imprisonment is lawfull and where not it appeareth that imprisonment is lawfull and sufficiently authorized by the Common Lawes and Statutes of this Realme in diuers respectes and for many crimes and there is by it no breach of the peace nor offence to the Law when it is inflicted by the warrant of the law for it aduaunceth as much the justice and peace of the Realme to haue offendors punished as to haue the innocent protected But the imprisonment which tendeth to the breach of the peace and the offence of the law is when one person or more vpon his or their owne authoritie eyther in reuenge of some supposed wrong receiued or in hope of a priuat gaine expected or for some other cause will of his or their owne authority imprison or arrest an other for the redresse whereof the party grieued shall haue an action of false imprisonment or an action of trespas recouer his damages And the same offendor which before did wrongfully imprison an other shall then vpon his conuiction by verdict or his owne confession be himselfe lawfully imprisoned vntill he hath paid to the king a
Ed. 1. 25. and doth not except an Enfant By the statute of Westm̄ 2. if he that is named a disseisour in an Assise do personally alleage any false exception whereby the taking of the assise is deferred viz. that at an other time an assise of the said tenements passed betwéene the said parties or that a writ of higher nature is depending betwéene them of the said tenements Imp. for failing of a record pleaded and doth vouch any rols or records to warrant the same and at the day giuen he faileth of his warrant he shall be adiudged a disseisour without recognizance of the assise and shall restore double dammages of that which shall be found and for his falshood shall be one yeare imprysoned And fourthly a man in diuers cases shall bee imprysoned for his stubbornesse wilfulnesse disobedience and contempt to subiugate and submit himselfe to the censure and iudgement of the Law and to performe accomplish that which the law doth expect at the hands of him and all others being in his case As if a Quid iuris clamat or Per quae seruitia be brought against a man Imp. for not atturning who doth appeare in Court and will not atturne to the plaintife nor plead in barre he shall be imprisoned for his stubbornes And if the tenant that ought to do homage or fealtie to his Lord Imprisonmēt for not doing his true seruice do appeare in Court and will not do such of the said seruices as be claimed of him neither plead in barre thereof Fitz. Per q̄ seruitia 23. he shall be imprisoned vntill he will do his foresaid seruices for his wilfull contempt of the law and disobedience to justice And if a writ of Estrepement be directed to the Shirife to prohibit him to commit wast in lands against whom a reall action Co. Lib. 5. 105. or action of Wast is depending for or touching the same lands the Shirife by force of the same writ may resist him who would do wast And if he cannot otherwise redresse the offence he may impryson him if néed be he may take the power of the Countie to assist him for this disobeying of the Kings writ and resistance of the Shirife is a wilfull frowardnesse and contempt of the law in the offendor and therefore he deserueth to tast the smart of the Law by imprisonment for his contumacy And in like sort by the statute of An̄ 27. Stat. 27. H. 8. 20. Stat. 32. H. 8. 7. H. 8. An̄ 32. H. 8. it was ordeined That if any person after sentence difinitiue giuen against him by the Ordinarie his Commissarie or other competent minister or lawfull Iudge do obstinatly refuse to pay his Tythes or duties or such summes of money adiudged wherein he is condemned for the same Then two Iustices of the peace of the same Shire whereof one to be of the Quorum shall haue authoritie vpon information Imp. for obstinate refusing to performe the Ordinaries sentence certificat or complaint made in writing by the ecclesiasticall Iudge that gaue the same sentence to cause the same person so refusing to be attached and committed to the next Gaole and there to remaine without bayle or mainprise vntill he hath found sufficient suerties to be bound by Recognizance or otherwise before the same Iustices to the vse of the King to performe the said sentence In the same maner may any one of the Kings Councell or two Iustices of peace vpon an Information or request made to them by the Ordinary St. 27. H. 8. 20. commit any offendor to ward for any contempt contumacie disobedience or any other misdemeanour of his in any suit for subtraction of Tythes offerings and other duties of the Church vntill he hath found suerties c. vt gladius gladium iuuet What is Matheining 58 Maiheming is an other gréeuance in the Realme and a speciall cause to disturbe the peace And that is when one member of the Common weale shall take from an other member of the same a naturall member of his bodie or the vse and benefit thereof and thereby disable him to serue the common weale by his weapons in the time of warre or by his labour in the time of peace and also diminisheth the strength of his body and weaken him thereby to get his owne lyuing and by that meanes the common weale is in a sort depriued of the vse of one of her members How many sorts there be of maiheming 59 This maiheming is a dismembring of a man or taking away some member or part of his body or the vse thereof As when a wound blow or hurt is giuen or done by one person or more to an other person whereby he is the lesse able to defend himselfe in the time of warre or to get his lyuing in time of peace And therefore if a man do put out the eye or cut off the hand or foote or any ioynt of the hand or foote of an other it is a Maihem though it be done by chaunce medley Sta. 5. H. 4. 5 But if one man of malice pretended do cut out the tongue or put out the eyes of any of the Kings subiects it is Felonie And if one man do crush the mouth or head of an other or break out his fore-téeth it is a maihem for with them he may defend him selfe in battaile but to breake his hinder téeth or to cut off his Nose Fitz. Corone 458. or Eares whereby he loseth his hearing is no maihem but a deformitie or blemish of his bodie and no weakning of his strength It is a Maihem to pull any boane out of a mans head or to cut off any finger of a mans hand 28. Ed. 3 94. Lib. in t fol. 45. or to breake any of them so that they become shronke vp or dried vp or dead or crooked Gelding of a man is also a maihem though it be in a secret place yet it maketh him more féeble and vnable to defend himselfe in in bataile or to worke for his liuing If by any wound receiued the sinewes or vaines of a man be shronke vp it is a maihem To cut off the chéeke or iawbone of any person Lib. intur fol. 45. or so to crush or breake any of them that the same person is the lesse able to take his meate or drinke is a maihem If one person or more doe take an other person by force and put him in the stocks or otherwise bind him fast and after poure so much skalding what oyle and vinegar or hoat melted lead or other skalding licor vpon any part of his body and so continue it vntill it doth wast and consume the flesh of the same part and drie vp and mortifie the veynes and sinewes of the same parte it is a maihem If A. do strike at B. and the weapon wherwith he striketh breaking or falling out of his hand by the force of the blow doth put
DnÌ„i Reg. erga ipsuÌ„ dominuÌ„ Reg. cunctuÌ„ populuÌ„ suuÌ„ precipuè erga C. D. de Twyford in comÌ„ praedicto Husbandman conseruabit ideo ex parte dicti dnÌ„i regis vobis cuilibet vestruÌ„ mando quod de arrestando imprisonando seu aliqualiter molestando praedictuÌ„ A. B. ex causa pÌ„dicta Supersedeatis quilibet vestruÌ„ Supersedeat omnio Et si euÌ„ ex dict' causa non alia ceperitis seu imprisionaueritis seu aliquis vestruÌ„ ceperit seu imprisonauerit tunc à prisona illa sâ—ne dilatione deliberari faciatis Supersedeas in the Chancery for one bound in the common plaâ—e datuÌ„ apud Hilsdon c. 22. H. 6. 59. But if a man be arrested in the common place for the suertie of peace and he is lett to baile to a certaine day at which day he doth bring a Supersedias out of the Chauncerie that he hath found suerties in the Chauncery that is not alloweable because he was by baile which is an imprisonment in law and therefore the suertie in the Chauncery will not serue And it may be that the suerties in the Chancery be not sufficient and that the King and the Court was deceiued therein And yet the common place hath no authority to take suerty of peace 2. H. 7. 1. but of the peace broken before them 81 When the partie against whom the precept is awarded to find suerties for the kéeping of the peace A Recognizance for the keeping of the peace doth come before the Iustice of peace to be bound to the peace then it resteth in the discretion of the same Iustice of peace if he deale in this cause as a Iustice of peace by force of the generall commission of peace and so as a Iudge to assigne what number of suerties he will accept to be bound with the party in what summe of money the party his suerties shall be bound to allow or disallow of the sufficiencie of those suerties to limit the time how long the party shall be bound and to determine vpon some such other circumstances touching that matter But if the same Iust of peace be commanded as a minister in the erecution of the writ of Supplicauit to take the peace of any person then he must do as the writ doth direct him which sometime is to take sufficient suertie to be bound in a summe prescribed and some other time not then it resteth in his owne discretion The most vsuall maner is for a Iustice of peace to take two suerties besides the partie himselfe to be bound by Recognizance to the King viz. Domino Regi and that must alwaies be for the kéeping of the peace The forme of which Recognizance for the kéeping of the peace is as followeth viz. Memorandum qd ' nono die Augusti Anno regni dnÌ„i nostrÌ„ Regis Iacobi dei gratia c. 5. A.B. de Padburie in Comitatu pÌ„dict ' Husbandman Buck. in ê“pria persona sua venit coram me Richardo Ingols by Milite vno IusticiarioruÌ„ dicti dnÌ„i Regis ad pacem in dicto Comitatur conseruandam assignatoruÌ„ assumpsit proseipso sub poena xx li. et D.E. H.I. de C. in Comitatur praedictur Husbandmen adtunc ibmÌ„ in ê“prijs personis suis similiter venerunt manuceperunt pro praedicto A. B. viz quilibet eorum seperatim sub poena x. li. quod idem A. B. personaliter comparebit coram Iusticiarijs dicti domini Regis ad pacem ad ê“ximam generaleÌ„ Sessionem pacis in ComÌ„pÌ„dicto apud Buck. tenendam ad faciendum recipienduÌ„ quod ei per Curiam tunc ibidem iniungetur Et quod ipse interim pacem dicti dnÌ„i Regis custodiet erga ipsum dominuÌ„ Regem cunctum populuÌ„ suum praecipue versus L.M. de O. de comitatu praedict Et quod damnum vel malum aliquod corporale aut grauamen praefatur L.M. nec alicui de populo dicti domini Regis quod in laesionem aut perturbationem pacis ipsius Domini Regis seu praefati L.M. cedere valeat quouismodo non faciet nec fieri procurabit Quam quidem summam xx l' praedict ' A.B. quilibet manucaptorum praedictorum praedictas seperales summas x. l' recognouerunt se debere dicto domino Regi de terris tenementis bonis catallis suis cuiuslibet eorum ad opus dicti domini Regis fieri leuari ad quorumcunque manus deuenerunt si contigerit ipsum A.B. praemissa vel eorum aliquid in aliquo infringere inde legitimo modo conuinci In cuius rei testimonium ego pÌ„dictus Richardus Ingolsby sigillum meum apposui Datur apud Lethenborow die Anno supradict ' And the forme of the Recognizance for the good abearing is this viz. A Recognizance for the good abearing MemoranduÌ„ c. quod ipse A. B. interim se bene geret erga DnÌ„m Reg. cunctuÌ„ populuÌ„ suuÌ„ praecipuè erga L. M. Et quod ipse non inferet nec inferri ê“curabit per se nec per alios damnuÌ„ aliquod seu grauamen pÌ„fato L.M. seu alicui de populo ipsius dnÌ„i Regis de corporibus suis per insidias insultus seu aliquo alio modo quod in laesionem seu perturbationem pacis dicti dnÌ„i Regis cedere valeat quouismodo viz. vterque praedict ' D. E. et H. I. sub poena 50. librÌ„ et praedict ' A. B. sub poena 100. librÌ„ c. And this may be done by a single Recognizance in Latin with a Condition thereunto added in English for the kéeping of the peace or the good Abearing and for the day and place of the parties apparance at the Quarter Sessions 82 A Iustice of peace who vpon his owne discretion compelleth one to find suertie of the peace vntill a certaine day may vpon the like discretion release the same before that day A Releas of the suertie of peace But if a Iustice of peace do graunt the peace at the request of an other viz. at the suit of A. and that the Recognizance be taken to kéepe the peace against A. then may the same A. only releas it and none other before the same Iustice of peace or any other Iustice that will certifie the same releas before the Iustices of peace at the next quarter Sessions for that certificat being of record will discharge it which a releas by déed can not do the suertie of peace being a Recognizance and so of it selfe a record And though the Recognizance be versus cunctum populuÌ„ precipuè versus A. yet may the same A. releas it for though it may séeme populer and that others should haue equall interest therein with A. yet as it appeareth by the word precipuè it was specially taken for his safetie But though in some case a Iustice of peace may releas the suertie of the peace in some
shall haue like Proces vpon the same as in cases of trespas at the common law Or may at his pleasure take his suite against any such offendors in any the premisses by Bill in the Kinges Bench or in the Exchequer In which sutes no Essoine Iniunction or Protection shall be allowed for the party Defendant Not twice impeached for one offence 6 If the Defendant shall be conuict for any of the offences aforesaid St. 5. Eli. 14. according to the order and forme aboue limited and shall haue receiued thereupon punishment corporall according to this Act then he shall not eftsoones be impeached for the same offence The plaintifs release shal only discharge his owne remedy 7 Although the partie or parties plaintife in any such Action St. 5. Eli. 14. or Bill to be sued as is aforesaid shall after verdict past against the Defendant or Defendants happen to release or discharge the iudgement or execution vpon the same or otherwise suffer the same to be discontinued yet neuerthelesse the same release discharge or discontinuance shall extend onely to discharge such costs and dammages as the same plaintife should haue had against the defendant And the Iudges before whom the said action or suite shall be taken shall and may prrcéede to iudgement of and vpon the residue of the said penalties and forfeitures and commaund execution vpon the same the saide release discontinuance or other discharge had made done or suffered by the partie plaintife in any wise notwithstanding 8 If any person or persons being hereafter conuicted St. 5. Eli. 14. or condemned of any of the offences aforesaid by any of the wayes or meanes aboue limited shall after any such his or their conuiction or condemnation eftsoones commit or perpetrate any of the said offences in forme aforesaide The punishment for the second offence Then euery such second offence or offences shall be adiudged felony and the parties being conuicted or attainted according to the lawes of this Realme shall suffer paines of death losse and forfeiture of their goods cattels lands and Tenements as in cases of felony by the common lawes of this Realme ought to be lost or forfeited The right of others saued without hauing any aduantage or benefit of Clergie or Sanctuarie Sauing to euery person and persons body politique and corporate their heires and successors other than the said offendors and such as claime to their vses all such rights titles interests possessions liberties of distresses leases rents reuersions offices and other profits and aduantages which they or any of them shall haue at the time of such conuiction or attainder of in or to any the lands tenements or hereditaments of any such person so as is aforesaid conuicted or attainted or at any time before in as large ample maner to all intents and purposes as if this Act had neuer bin made Prouided alwayes that any such conuiction or attainder of felony as is aforesaid No forfeiture of Dower or corruption of blood or any forfeiture by reason of the same shall not in any wise extend to take away the dower of the wife of any such person attainted nor to the corruption of blood or disherison of any the heire or heires of any such person or persons so attainted This Act or any thing therein contained or any other statute law or custome notwithstanding 9 All and euery Iustices of Oire and Determiner St. 5. Eli. 14 and Iustices of Assise Iustices of Oire and Determiner and Iustices of Assise in their circuits and euery of them shall haue full power and authoritie in euery of their open and generall Sessions to inquire heare and determine of all and euery of the offences aforesaid committed or done within the limits of their Commission and to make Processe for the execution of the same as they may do against any person beeing indicted before them of Trespasse or lawfully conuicted thereof Stat. 5. El. 14 10 If any person or persons whatsoeuer hath of his or their owne head Forging of deeds before the statute or by false conspiracie or fraud with any other wittingly subtilly and falsly forged or made or shall before the first day of Iune next comming forge and make any false déed charter or writing sealed or the will of any person in writing or any court roll to the intent that the estate of Freehold or inheritance or the right title or interest of inheritance or freehold of any persons of in or to any Mannors lands tenements or hereditaments being freehold or copihold Or that by any such forged déed charter court roll or writing before the said first day of Iune shall or may be molested troubled or defeated of any of the said estates of any lands tenements or hereditaments being fréehold or Copihold Or if any person or persons haue heretofore published or shewed foorth in euidence or before the said first day of Iune shall publish or shew in euidence for the proofe of any title any false and forged déed charter writing will or Court Roll as true knowing the same to be false and forged as aforesaid to the intent aboue remembred and shall be thereof attainted or conuicted according to the order of the law either in an Action of forger of false faits or in an Action vpon the case at the sute of the party grieued his heirs executors or assignes Then the party so conuicted shall yielde and pay dammages and costs of sute to the plaintife as shall be assessed according to the law of the Realme in any such like Action or sute and shall suffer imprisonment and pay fine and ransome at the pleasure of the Quéene her heires or Successors Pleading a forged deed made before the statute And if any person or persons shall after the said first day of Iune next comming pleade publish or shew foorth in euidence or otherwise for the proofe of any title any false and forged déed charter writing will or Court Roll heretofore falsly made and forged or to be falsly made and forged before the said first day of Iune as true knowing the same to be false and forged to the intent to haue or claime thereby any estate of inheritance fréehold or lease of yeares in or to any mannors lands tenements or hereditaments or any annuitie rent or profit foorth of any mannors lands tenements or hereditaments Or to the intent to alter defeate molest trouble charge or recouer the estate of inheritance fréehold or lease for years of any person in any mannors lands tenements rents or hereditaments Then euery person and persons that so shall offend and shall be thereof conuicted in forme first aboue remembred shall pay vnto the partie grieued double costs and dammages and shall haue imprisonment losse of Eares slitting and searing of Nose and forfeiture of lands in the same maner and forme as aboue is limited for any person that shall offend by forging or publishing of any
of the stat of 18. El. 14 Maintenance Champertie buying of titles Embracery haue bin accounted so offensiue professed enemies to the iustice peace of the realm that though by the stat of an 18. El. it is ordained Stat. 18. El. 5 That euery informer vpon any other penall stat shal exhibit his suit in proper person pursue the same onely by himselfe or by his Atturney in court and that none shal be admitted to pursue against any person vpon any penall stat but by way of information or originall writ and not otherwise nor shall haue any deputy at all And that vpon euerie such information which shal be exhibited a speciall note shall be made of the very day moneth yere of the exhibiting therof into any office or to any officer which lawfully may receiue the same without any maner of antedate to be made thereof And that vpon euery such proces shal be indorced aswel the parties name that pursueth the same proces as also the stat vpon which the information in that behalfe made is grounded and that no Informer or plaintife shall compound or agrée with any person that shall offend or shal be surmised to offend against any penal statute for such offence but after answer made in court vnto the information or suit in that behalfe exhibited or prosecuted nor after answer but by the order or consent of the court in which the same information or suit shal be depending Yet in the said stat of 18. El. there is a prouiso That it shal be lawfull for any person or persons grieued by means of any maintenāce chāpertie buying of titles or other embracery to pursue vpō any stat prouided against maintenance champerty buying of titles or embracery as he or they might haue done before the making of the said act Which prouiso was made to the end that all persons grieued by reasons of any maintenance champertie buying of titles or embracery should be left at libertie to pursue chasten the offendors therin by all such means as former laws haue authorised thē not be restrained by any of the ordinances or articles before rehearsed for that the said offēces were by the makers of the said stat adiudged to be greater impedimēts obstacles to the execution of iustice than other penal stat were 15 As the policie of the realme hath deuised the foresaid popular actions and suits to enable euery person that will Assurances to haue mainte void in diuers cases to pursue prosecute maintainors champertors buyers of pretenced rights c. to the intent the sooner to root out extirpat those offendors who indeuor to wrest the execution of lawes out of their due course to subuert iustice thereby to hinder the peace of the realme so hath it in some cases gone further ordained that some assurances made for maintenance shal be presently void as it appeareth by the stat of an 8. St. 8. H. 6. 9 H. 6. wherby it was enacted Lands gotten by force assured to haue maintenance That if any person after his entry into lands or tenements holden with force do make a feoffement or other discontinuance to any Lord or other person to haue maintenance or to toll defraud the possessor of his recouerie in any wise If alter in an Assise or other action thereof to be takē or pursued before the Iust of Assise or other the kings Iustices whatsoeuer they be by due inquiry therof to be taken the same feoffements and discontinuances may be duly proued to be made for maintenance as is aforesaid that then such feoffements or other discontinuances so as before made shall be void St. 4. H. 4. 8. holdē for none And by the stat made an 4. H. 4. it was established That if any man great or small of what estate or condition they be Lands forcibly gotten by maintenance make any forcible entry in his own right or to his own vse or in anothers right to his vse by the way of maintenāce therof is attained at the suit of the party grieued he shal be one yere imprisoned pay to the partie grieued his double dammages And also he shall answer to the partie grieued damages for his goods cattels if vpon the said forcible disseisin he tooke away any 16 As by the before mentioned stat maintenance champerty What maintenance is punishable and what iustifiable embracerie buying of titles be in generall termes deciphered together with their seuerall penalties so haue the learned Iudges Sages of the law expounded the particular branches of euery of those stat as they grew in question were prosecuted in suit before them also resolued what maintenance is punishable and what iustifiable who may pursue an action writ bill or information c. of maintenance champerty c. against whom the same is to be brought for what offēce or cause the same is maintenable what pleas are to be pleaded to the writ or in bar of the said actions writs informations c. what iudgemēt shall ensue thereupon As euerie champertie is an vnlawful maintenāce prohibited by the foresaid stat of West 1. West 2. 9. H. 6. 64. St. 28. E. 1. 11. and punishable according to the before rehearsed stat of An. 28. E. 1. and euerie chāpertie is a maintenance the partie grieued may haue aswel a writ of Maintenance as of Champertie for by that meanes the champertor hauing bargained to haue part of the land or thing in question doth ofttimes moue further the suit suborneth witnesses corrupteth the Iurie and so subuerteth iustice but there must be a suit depending before it can be adiudged maintenance in any sort for if one man wil giue money to another to beginne and prosecute a suit against a third person 3. H. 6. 55. 8. H. 5. 8. 10. Ed. 4. 19. 30. Ed. 3. 3. this is no maintenance for that this mony was giuen when there was no suit depending and if there be a writ brought and neuer returned it is no maintenance No maintenance in a Iuror for giuing his verdict 17 If there be a suit depending betwéene two and they do ioyne an issue 18. E. 4. 2. 28. H. 6. 6. which is tried by xij men found for the plaintife in this case the defendant cannot haue an action of maintenance against the said Iurors or any of them for this verdit giuē for that they gaue their verdit according to their euidence and their knowledge of the truth of the matter and besides they did not thrust thēselues into that cause but were compelled to appeare by an ordinarie course of law being impanelled returned by the Sherife or some other lawfull officer Maintenance by a Iuror suing for iudgement but if after the verdit giuen any of the Iurie wil solicit or labor to the Iudge or Iudges of the court where the said suit
request his opinion of them whether they will serue to defend his title in the cause in suit and the partie doth affirme them to be good and sufficient in law to iustifie and maintaine his cause this is vnlawfull maintenance in that person who giueth this counsell for by this meanes the partie may be encouraged to prosecute or defend a suit which the law will not warrant him to effect Co. li. 1. 177 And if L. being a man that is not learned in the law will publish that B. hath good right and title to the Mannor of D. wheras in truth B. hath no good right title thereunto but C. hath the onely right title to the same in this case because L. hath taken vpon him the knowledge of the law and intermedled in a matter wherin he hath nothing to do C. may haue an action vpon the case against the said L. for slandering of his title and shall recouer his damages against him and his ignorance of the law will not excuse him 33 In an Action of Maintenance the plaintife declared Maintenance by an Atturney That the defendant maintained one B. in the court of L. in an action of Couenant 36. H. 6. 37. which the plaintife brought against the said B. in the same court Whereunto the defendant pleaded That he was retained to be the Atturney of the same B. in the said suit which the plaintife did prosecute against him by force wherof he came to a man learned in the law by the commandement of the said B. his client and desired him to be of counsel with the said B. and gaue him his fée of the money of the said B. the which is the same maintenance And this was adiudged maintenance iustifiable for when an expert and learned man is Atturney for another he is to do all lawfull things which he can touching that suit for the benefit of his client with the priuitie or direction of his client as in retaining of learned counsell suing forth of originall or iudiciall proces procuring a Iurie to be impanelled Kel fol. 50 13. H. 4. 19. and returned by the Sherife by obtaining a Supersedeas for his client when cause doth require it and he may giue euidence to the Iury vpon the tryall of his clients cause and also he may request any of the Iurors impanelled for the triall of the said cause to appeare for the spéedy end of the said suit 34. H. 6. 26. But neither the same Attourney who is retained for that only cause nor a generall Attourney that is constituted by any person in al his causes according to the stat of West 2. St. 13. E. 1. 10. may do any vnlawfull thing in his clients behalfe as to giue or promise money or other reward of his owne or his clients to a Iuror 11. H. 6. 10. to giue his verdict for his client or to threaten him if hée doe otherwise or to defend or offer to defend his clients cause at his owne charges or to procure the Sherife to returne a Iurie at his denomination for the tryal of his clients cause for in all these cases last specified the maintenance is vnlawfull and punishable for he cannot do them as an Attourney but as a straunger a maintainor and of his owne wrong And if a man do maintaine a suit by an Atturney 22. H. 6. 24. an action of Maintenance doth lye against the Master Maintenance in a Sherife or his bailifes And if the Sherife of any Countie his Vndersherife or any Bailife do any of the things aforesaid 13. H. 4. 19. in any suit prosecuted betwéene partie and partie other than impanell a Iury and summon them to appeare at a day time prefixed by the kings writ it is vnlawfull maintenance in him 22. H. 6. 35. 34 In an action of Maintenance the defendant pleaded Maintenance in respect of neighborhood That he whō it is supposed that he maintained is his neighbour and that hee came vnto him and told him that the plaintife had procured a Capias to arrest him therefore praied the defendant to giue him counsell what he were best to doe and hée this defendant aduised his said neighbour to goe to London and to yéeld his bodie to the Iustices and to procure a Supersedeas which is the same maintenance whereupon the action is brought And this was adiudged no vnlawfull maintenance but a neighbourly and friendly counsell which euerie person may giue to another For if a husbandman or any other doe come to his neighbour and tell him that a stranger doth owe him money or doth detaine his goods from him and request his counsell that neighbour may aduise him to bring an action of Debt or Detinue against the same straunger 12. Ed. 4. 14. 19. Ed. 4. 3. Or if one neighbour shall tell another that hée hath a cause to put in suit and desire that hee will instruct him what learned man in the law he doth know to whom he may repaire for counsell his neighbour may informe him of such one as hee taketh to bee learned and also may goe with him to that learned man and bee present when he doth retaine him of his counsell and open his case vnto him and also hee being a meane man and of small countenance or authoritie in the countrey may goe to the barre and stand by him at the tryall of his cause in question but if that neighbour shall giue any money to the counsellor to be retained with his neighbour or shall giue any money or other reward to the Sherife or Vndersherife or to any Bailife to arrest the other partie in his neighbours behalfe or to answer his suit then is it vnlawfull maintenance in him and hee is by action of Maintenance to bee punished therefore Where the master may maintaine his seruant 35 In an action of Maintenance brought by A. against B. the plaintife declared 31. H. 6. 8. that where he brought another action before against C. the said defendant did maintaine the same C. in the same first action whereunto B. the defendant pleaded That the same C. is his seruant retained in his seruice for one whole yeare and therefore he retained one M. an Apprentice of the law to be of counsell with the said C. his seruant and paid the said M. his fee with part of the wages due to the said C. which was the same maintenance and this was adiudged a good plea in barre and lawfull maintenance 22. H. 6. 35. 9. H. 6. 64. 28. H. 6. 12. 19. Ed. 4. 3. 19. H. 6. 30. for it is lawfull for the Master to request a man that is learned in the law to be of counsel with his seruant in his suit and to pay the same counsellor his fée with part of the wages of his said seruant and to goe with his seruant to the barre at the tryall of his cause in question which the
lessor of the remedy which the said statute of Anno 4. H. 7. did giue him viz. to make his entry or to pursue his action within fiue yeares which he could not do being ignorant of the lease for life which his tenant had made of this land to a stranger and also conceiuing that the lessée hauing land of his owne fée simple in the same towne he leuied a fine of that land which hee might lawfully doe And the deceit and fraud in this case is the more odious because it was practised by the lessée against his lessor and by the copyholder against his Lord who is by the law bound to do fealty to the lessor and Lord which is a bond of confidence and a linke of trust And if a man seised of land in fée Fit Fines 120. do make a lease to another thereof for terme of life and the lessée for life doth leuie a fine therof to a stranger he in the reuersion may enter into the same land for a forfeiture and put forth the conusée in the fine and auoid the fine for it was leuied by deceit to defraud him of his reuersion If a fine be leuied of lands to secret vses to deceiue the purchasor of the same land it may be auerred to be leuied by fraud and so by the statute of 27. El. 4. auoided St. 27. Eli. 4. And so if a fine be leuied vpon an vsurious contract and that be auerred the same fine shal be void by the stat of 13. Eliz. 8. St. 13. Eli. 8 A fine leuied of ancient demesne lands to defraud the Lord. 5 The law is as prouident to protect mens seigniories rents and seruices from euiction by deceit as she is their lands and tenements knowing that a fine in some cases leuied by couin of the one may be as preiudiciall to his inheritance as of the other hath therefore ordained seuerall remedies to redresse seuerall wrongs as if a man seised of lands in ancient demesne do leuy a fine thereof at the common law to another this is a deceit to the lord of that manor of whom the said lands be holden 21. Ed. 3. 20 Fit Nat. Br. 98. therefore he may haue a writ of Deceit against the cognisor and the tenant of the lord thereby auoid the said fine and then he that leuied the said fine shall be restored to the possession and the title which he had before in the same land and also the same land shall returne and become auncient demesne as it was before for that the said fine shal be vtterly void 21. Ed. 3. 56. And he that is lord of a manor of auncient demesne but for the terme of his life only may maintaine this writ of Deceit And so may he in reuersion if tenant for the terme of life doe not bring it during his life and either of them by his said writ may auoid the same fine for by the leuying of a fine at the common law of lands in ancient demesne 8. E. 4. 6. or by recouerie of them at the common law the same lands do become Franke fée and pleadable at the common law and so the lord should be deceiued of his right and loose his seigniorie in them And the writ of Deceit will auoid the said fine or recouerie because the fine was leuied and the recouerie was suffered coram non iudice in deceit of the Lord viz. not before that Iudge nor in that Court where they ought to haue béene 17. Ed. 3. 31. 7. H. 4. 44. 8. H. 4. 23. Fitz. Na. Br. 98. But if a man seised of lands whereof parcell be auncient demesne and parcell Franke fée doe leuie a fine at the common law of both parcels in this case though the Lord of the auncient demesne doe by his writ of Deceit auoid the fine for so much as is ancient demesne yet the residue of those lands which be Franke fée shall continue in force for a fine leuied of them was no wrong or deceit to any 6 And the same law is where land is recouered by deceit A writ of Deceit to auoid a recouery as if one man do bring a Praecipe quod reddat against another and demaund certaine land by force whereof the tenant ought to be summoned to be before the Iustices at a certaine day and the shirife doth returne the tenant of the land against whom the said Praecipe is brought Fit Nat. Br. 97. summoned whereas in truth he was not summoned by which false returne and deceit of the shirife the demaundant doth vpon the Graund Cape recouer seisin of the land by default of the tenant in this case the tenant to whom this deceit is done 3. E. 3. 28. Fitz. Deceit 49. may after iudgemēt giuen for the demaundant haue a writ of Deceit against him that did recouer and against the shirife for his false return And by this writ of Deceit the tenant shal be restored to his land againe 18. E. 4. 11. so that it be brought during the life of the summoners viewers and pernors or any of them for if it bee not brought vntill all the summoners viewers and pernors be dead it will not lye for after the death of them the tenant shall not haue a writ of Deceit for proces shal be awarded against the summoners viewers and pernors to appeare in Court and by the examination of them it is to be tried whether the tenant was summoned or not 50. Ed. 3. 16. 8. H. 6. 1. Fitz. Deceit 48. Fitz. Deceit 32. 33. 34. 46 for the summons must be made by two summoners at the least and two viewers And if any of them did not their duty then the writ was not executed as it ought to haue béene and therefore the plaintife in the writ of Deceit ought to be restored But the K. shall haue the issues of the land in the meane time And if the demaundant who did recouer by the shirifes false returne do make a feoffement of the land then the writ of Deceit must be brought against the demaundant the feoffée and the shirife and if the demaundant that doth recouer 8. E. 3. 6. 10. Ed. 3. 43. the shirife also be both dead yet the writ of Deceit may be brought against the heire of the demaundant and the tenant of the land if the summoners viewers and pernors be liuing And if a man do lose his land by default in a Praecipe quod reddat Fit Nat. Br. 98. Fitz. Deceit 43. 80. whereby he was not summoned and then dieth his heire may haue a writ of Deceit as well as his auncestor and shall haue restitution and the vouchée The vouchée may haue a writ of Deceit where he doth loose by default if he were not summoned 7 And so it is if a man sue a Scire facias against another Deceit to auoid a recouerie vpon a Scire facias
the time of his loane he meant to offend And therefore the stat of 13. Eliz. 8. hath wel prouided that the same stat of 37. H. 8. shal be most largely strongly cōstrued for the repressing of vsurie and against all persons that shal offend against the true meaning of the said statute by any way or deuice directly or indirectly Oppression by cutting out the head or pipe of a conduit Oppression by burning a cart laden Oppression by cutting off eares Oppression by barking of trées 30 It is an oppression and manifest and palpable iniury if any person do wilfully maliciously and vnlawfully cut or cause to be cut out the head or pipe of any conduit of any other persons Or burne or cause to be burned any wain or cart laden with coales or any other goods or any heape of wood of any other persons prepared felled for making of coales billet or Tallwood Or to cut or cause to bee cut out the tongue of any tame beast being aliue of any other persons Or to cut or cause to be cut off the eare or eares of any of the kings subiects otherwise then by authoritie of Law chance-medley sudden affray or aduenture Or to barke any Appletrées Pearetrées or other fruit trées of any other persons in all which cases by force of the statute of Ann. 37. H. 8. the offendor shall forfeit to the party grieued treble dammages St. 37. H. 8. 6 to be recouered by action of Trespas at the common law and to the king 10. l. for a fine 31 It is an oppression and a resolued intent to do hurt wrong to others Oppression by hawking or hunting in corn growing if any person shall hawke or hunt with his spaniels in any ground except his owne where corne or graine shall then grow at such time as any eared or codded corne or graine shal be standing and growing vpon the same or before such time as such corne or graine shal be shocked cocked hiled or copped in which cases the stat made an 23. St. 23. El. 10. El. hath ordained That the offendor shall forf for euery time that he shall so hawke or hunt without consent of the owner of the corne to such person as shal be owner of the eared or codded corne xl s̄ 32 If any person shal by day or night vnlawfully without authority break Oppression by taking of fish cut downe cut out or destroy the head or dam of any pond poole moat stagn stewe or seuerall pit wherein fish shal be put or stored by the owner thereof Or shall wrongfully fish in any of the said seuerall ponds c. to the intent to destroy kill take or steale away any of the same fish against the will of the owner or possessor thereof not hauing lawfull authority so to do this is an oppression to the said owner or possessor St. 5. El. 21 and therefore by the stat of an 5. El. it is enacted That the offendor being lawfully conuict of any of the said offences at the suit of the K. or the party grieued shall pay to the party grieued his treble damages suffer imprisonment 3. moneths find sufficient surety for his good abearing for the space of 7. yéeres or els remain in prisō without baile or main-prise vntill he hath found such surety And it shal be lawfull for the party grieued to take his further remedy against the offēdor for his losse damages and vpon satisfaction or confession of the dammages to release the offendor of the suretiship and good abearing at any time within vij yeares 33 I will draw toward an end of this title of Oppression Oppression by decaying o◠townes houses of husbandry with one of the greatest and most durable of all oppressions viz. with oppression by pulling downe of Towns houses of Husbandry and decaying of Tillage When the realme ceased to be oppressed by the long tedious ciuile warres which before were many yéeres continued betwéene the ij houses of Yorke and Lancaster and that K. Edward the fourth had ouerthrowne Q. Margaret Prince Edward her sonne at Tewksbury field setled the title of the Crowne planted peace in the Realme then some men of stirring spirits diuerting their bloudy humors to couetous humors pulled downe townes laid wast houses of husbandry thrusting forth of dores men women children cōuerting the same to their owne priuat vses which offence then daily increasing though it were but in Cunabilis being about 120. yeres sithence was so bewailed exclaimed of cried out vpon in open parliament that the same may in a sort be resēbled to the pitifull lamentation which the prophet Ieremy sitting downe wéeping made Threnae Ierem. after the temple of God the city of Hierusalē were destroyed the priests Leuits Elders slaine by Nabuchadnezzar K. of Babilon Or the same may be cōpared to those wofull miseries calamities which the prophet Esay foretold should after fall vpō the said great city of Babilon Esay 13. for as it appeareth by the stat of an 4. St. 4. H. 7. 12 St. 7. H. 8. 1. H. 7. 12. 19. 7. H. 8. 1. it was then holden That by the desolation pulling downe of houses and townes and laying to pasture land which customably hath beene manured occupied with tillage idlenesse the ground and beginning of all mischiefes doth increase men women and children that were dayly occupied and liued by the sowing of Corne and bréeding of Cattell and other increase were diminished husbandry the greatest commodity of this Realme for sustenance was decaied Churches were destroyed the seruice of God was withdrawne Christian people there buried are not praied for the Patrons and Curats were wronged Cities and market towns were brought to great ruine and decay necessaries for mans sustenance were made scarce and deare the people of the realme were sore minished the power defence therof was féebled decayed to the high displeasure of God against his lawes and to the subuersion of the Commonwealth desolation of the same Which grieuous dolefull mone made and enormities so displaied the grand counsell of this realme hauing commiseration vpon did indeuor to reforme at seuerall parliaments as appeareth by the stat of An. 4. H. 7. 12. 19. Ann. 7. H. 8. 1. An. 27. H. 8. 22. An. 5. E. 6. 6. An. 2. 3. P. M. 8. An. 5. El. 2. which said stat were all after repealed by a stat made an 39. St. 39. El. 1 El. And then by the same stat it was enacted That euery house that now hath viz. 24. die Octob. an 39 Reg. El. An. Do. 1597. Which is an house of husbandry or heretofore had 20. acres of arable land meddow and pasture or more therunto belonging and so occupied or letten to farme by the space of 3. yéeres together at any time sithence the beginning of the Qu.
raigne that now is which is not or hath not bin the castle or dwelling house of any nobleman or gentleman nor the chiefe mansion house of any manor is and shal be adiudged a house of husbandry for euer and all acres spoken of in this statute shal be adiudged acres according to the Statute or Ordinance de terris mensurandis Which is an acre of land And euery person persons bodies politique and corporat which shall offend in not building erecting repairing continuing or maintaining of houses of husbandry according to the purport true meaning of the said statute The forf for not building a house of husbandry shall for euery house that shal not be erected builded repaired continued or maintained in necessary reparations tenantable according to the intent of the same act by the space of one yéere forf x. l. and so yéerely x. l. vntill the same shal be sufficiētly erected continued repaired c. and for euery acre of land meddow or pasture which shal not be laid vnto or let with such houses of husbandry when the same shal be demised shal forf for euery yéere that he or they shal so offend the summe of x. s̄ as long as often as such acre shall not in those respects be ordered vsed according to the intent of this act of which forf the K. shal haue one part the poore of the parish where the offence was committed the second part and he that will sue in any of the K. courts of record at Westminster the third and if none will sue thē the K. shal haue also that third part But no offendor shall be impeached or sued by vertue of this act Within what time the suit shal be presēted except the suit be brought and commenced by the party for the king himselfe within 2. yeares of the same offence done but where the suit shal be prosecuted for the K. only c. then within 3. yeeres after the offence done Oppression by decay of Tillage 34 By the stat of an 39. El. 2. it was ordained St. 39. El. 2 That all lands and grounds which now are vsed in tillage or for tillage hauing bin tillable lands fields or grounds such as next before the first day of this parliament haue béene by the space of 12. yeres together at the least vsed in tillage or for tillage according to the nature of the soile course of husbandry vsed in that part of the countrey shall not be cōuerted to any shéepe pasture or to the grazing or fatting of cattel by the occupiers or possessors thereof but shall according to the nature of that soile course of husbandry vsed in the part of the country continue to be vsed in tillage and for tillage for corne graine not for wood And if any person body politique or corporat shal offend against the premisses thē the offēdor shal forf for euery acre not restored or not cōtinued as is aforesaid x. s̄ for euery yere that he or they so offēd to be diuided into 3. parts then to be distributed as is aforesaid so that the suit be cōmenced or prosecuted wtin the time or times before mentioned I haue for some special causes herein set down but only the offēces penalties mentioned in the two last specified stat of an 39. El. 1. 2. Wherefore the two last stat bee not set down at large omitting purposely the exceptions reseruations prouisoes and some other matters in the same 35 As Menaces Assaults Batteries Imprisonments Maihems Riots Routs vnlawful assemblies Forgeries Periuries Maintenances Deceits Extortions Oppressions all other the crimes before mentioned haue from one age to another bin noted accused as maladies in the common wealth and adiudged condemned as professed enemies to the peace of the realme and by seuerall lawes statutes diuers penalties haue bin imposed vpō the transgressors thereof in a measure certaine within some limits So the prouidence of our forefathers sounding déeper into the corruptiō of mans nature foreséeing that sometime his cholerike passions turbulent spirit sometime the gall and bitternes of his heart sometime his couetous insatiable affections eftsoons his secret desires deuices of reuenge doe carry him headlong into exorbitant vnusuall designments practises be they neuer so contrary to the Lawes of God of Nature Reason in seueral degrées further thē our said lawmakers did then either fore-thinke feare or by particular words restraine knowing also that the subtiltie of the Serpent and of men of the serpents nature doth excéed the other beasts of the field haue therefore erected established the most honorable Court of Starre-chamber All the former offences punishable in the Star-chāber to the intent that the wisedome of that Court authorized partly by the K. prerogatiue partly by seuerall lawes statutes of the realme might search forth the serpents subtilty and vtterly crush dash the same and séeing the dead letter of each law doth ordaine in most cases but one kind of punishment for one sort of offence the circumspection of the makers of that law were they neuer so wise or experiēced could not foresée all the circumstances which in time might ensue in the maner of transgressing of that law Therfore the lords others of that high Court being now the speaking law representing the persons of the dead lawmakers carefull expositors of their meanings by their graue foresights déep considerations do looke into those offēces which be cōmitted contrary to the same lawes do search into euery quarter corner circumstance therof do pierce through the very bowels intrailes of them and the transgressors thereof as what persons of what estate St. 13. H. 4. 7 St. 2. H. 5. 8 degrée ability function or calling cōmitted the offēce to whom in what manner in what place at what time before whom with what number for what cause the same was done then do inflict punishmēt vpon the transgressors thereof first according to the lawes statutes therfore prouided then do qualifie or aggrauate the same according to the circumstances As it is a Riot punishable by the stat of An. 13. H. 4. Ann. 2. H. 5. if thrée persons or more do assemble together and beat or mayme a man pull downe his house pale or ditch wrongfully c. so if a great number of meane persons of small ability or credit shall assault a péere of the realme or a Knight or Esquire that is Custōs Rotulorum of the shire or a Iustice of peace and Quorum in his country shall strip and whip him shall pull downe his house to the ground shall set him in the stockes or on the pillory shall beat his wife and children kill his cattell and spoyle his corne before his face and shall vse other acts and wordes of infamie and disgrace vnto him and only for
such offence of returning or being in this realme or c. without submission as is aforesaid shall be adiudged a Traitor and suffer and loose and forfeit as in case of high Treason 20 Hauing treated of Treasons generally and first shewed which be high Treasons and which petit Treasons by the common lawe and which be made treasons by Statutes It resteth that I declare what is Misprision of treason how many sortes thereof there be and what is the penaltie or punishment of the offendors therein What misprision of treason is Misprision of treason or felony is most properly when any person doth vnderstand or know that another person hath committed treason or felony and he will not disclose it to the King or his Councell or to some Magistrate that it may be repressed and punished but doth conceale it Bracton writeth Bracton de Corona cap. 3 That if any man doth know another to be guilty of a treason or to be vehemently suspected thereof he ought presently and without any delay come to the King if he can or send to him if he be not able to come or to some other néere about the King and to declare euery thing in order he ought not tarrie in one place two daies or two nights before he doth sée the Kings person neither must he attend any other busines be it of neuer so great importance for hée is scarcely allowed to looke backe because if he doe delay and conceale the matter for a time he shall be accounted a manifest deceiuer of the King and as consenting and agreeing to the offence whether the partie which is accused be his familiar friend or a stranger and if he would after accuse the offendor he shall not be heard vnlesse he can prooue that he was hindered vpon good cause And to the intent it might be certainely knowen what misprision of treason is the Statutes of 5. 6. Ed. 6. St. 5. E. 6. 11 1. 2. P. M. 10. and 1. 2. Ph. M. haue defined it in this manner viz. concealement or kéeping secret of any high treason shal be déemed and taken only misprision of treason the offendors therein to forfeit and suffer as in cases of misprision of treason as héeretofore hath béene vsed The forfeture in misprision And in all cases of misprision of treason the offendor shall forfeit to the King his goodes and his lands during this life 2. R. 3. 10. and he shall be imprisoned during his life And euery treason or felony doth include Misprision so that where any person hath committed treason or felony the King if hée will may cause the offendor to be indicted and arraigned but of misprision But some other offences partly by the common Lawe and partly by Statute be misprision of treason besides concealement or kéeping secret of treason which be héereafter expressed 21 By reason that diuers euill disposed persons as well without this Realme as within were boldened to counterfait and forge such kinde of golde and siluer and vtter the same in the Realme as is not the proper coine of this Realme nor currant in paiment in this Realme because before there was no condigne punishment prouided for such offences For the redresse whereof St. 14. El. 3 by a Statute made Anno 14. Elizab. 3. it was enacted That if any person or persons shall héereafter falsely forge Counterfaiting of money not currant or counterfait any such coine of golde or siluer as is not the proper coine of this Realme nor permitted to be currant within this Realme Then euery such offence shall be déemed and adiudged Misprision of high Treason And the offendors therein their procurors aiders and abettors being conuicted according to the Lawes of this Realme of such offences shall be imprisoned and forfeit such Landes goodes and Chattells as in cases of Misprision of treason for concealement of treason S. Br. 6. St. 23. Eli. 1 22 By the Statute made Anno 23. Elizab. 1. Aiding of perswaders to Romish religion it is enacted and declared That all and euerie person and persons that shall wittingly bée Aidors or Maintainors of such persons as shall offend in perswading or reconciling to the Romish Religion or in being reconciled thereunto or in any of the same offences knowing the same or which shall conceale any of the saide offences and shall not within twentie daies at the furthest after such persons knowledge of such offence disclose the same to some Iustice of Peace or other higher officer shall be taken tried and iudged and shall suffer and forfeit as offendors in misprision of Treason S. Br. 17. Concealing of reconciliation offered 23 By the Statute made Anno 13. Elizab. 2. it was ordained St. 13. Eli. 2. That if any person or persons to whom anie absolution reconciliation bull writing or instrument obtained from the Bishop of Rome or any of his successors or from any other claiming authoritie from or by them shall be offered mooued or perswaded to be vsed put in vre or executed shall conceale the same offer motion or perswasion and not disclose and signifie the same by writing or otherwise within sixe wéekes then next following to some of the Quéenes priuie Councell or to the president or vicepresident established in the North or the Marches of Wales for the time being Then the same person or persons so concealing shall incurre the penaltie and forfeit of misprision of high Treason But no person or persons shall be troubled in or for misprision of high Treason for any offence made Treason by this Act other than such as by this Act before are declared to be in case of misprision of high Treason S. Br. 16. Recording an indictment not found 24 If a Iustice of Peace doe inroll a bill of indictment not found by the Countrey amongst other indictments which be found 2. R. 3. 10. This is a great misprision and fineable and he shall loose his office Drawing a sword to strike a Iustice 25 If one draw his sword to strike a Iustice assigned Mi. 22. Ed. 3 13. sitting in place of Iudgement this is misprision of Treason and the offender being indicted and found guiltie thereof shall haue iudgement to forfeit his landes and chattels to haue his right hand cut off to be perpetually imprisoned for that the Iustice assigned by the Kings Commission to execute iustice sitteth in the place and stead of the King and so the offender opposeth himselfe against the King and the office of iustice Striking a Iuror in a Iustices presence 26 If in the presence of a Iustice assigned M. 19. Ed. 3. Fitz. Iudgement 174. one doe strike a Iurour that is returned vpon an Enquest this is misprision of Treason and the offender being indicted thereof shall haue iudgement to loose his lands and goodes to the King to haue his right hand stricken off and to be committed to perpetuall prison
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
proued that neither the horses nor cart did stirre then the whéele of the cart onely shall be a Deodand and not the horses nor the residue of the cart for that none of them did moue to the carters death Fitz. Cor. 401. 53 If a man ride into the water to water a horse Falling from a horse into the water A horse killeth a man From what time a Deodand shal haue relation and then falleth from the horse and is drowned the horse shal be a Deodand And if a horse bull boare c. do strike a man Fitz. Cor. 298. Pl. Com. 260. and after he dyeth of that blow the horse bull boare c. shal be a Deodand And if the owner of the horse that did giue the same mortall blow doe alien the horse to another betweene the time of the stroke giuen and the death of the man yet the King may seise that horse as forf for a Deodand for the forfeiture shall haue relation from the stroke giuen which was the cause of the mans death Fitz. Cor. 405. 54 If a beame whereupon a bell in a Church doth hang A beame of a bell of a church doe fall vpon a man and kill him as well the beame as the bell shall be Deodands notwithstanding that they were before the goods of the Church and in a sort Deo datum Fitz. Forf 20. But if a man be digging in a pit mine or quarrey of stone marle grauel sand coale or turfe and a great heap of earth do fall vpon him and kill him the same heape of earth onely shall be forf to the K. and not the whole pit mine or quarrey Fi. Cor. 389 55 If a man do fall from a bridge into the water The whéele of a mill and is carried by the force of the streame vnder the wheele of a mill and thereby is slain the whéele of the mill only shal be a Deodand Kel fol. 68 If timber boords wainscot or other goods do fall vpon a man and oppresse him to death the same shal be a Deodand Fitz. Cor. 314. 56 If a man falleth from his horse and breaketh his head necke back Falling from a horse against a trunke c. against a trunck péece of timber or any other thing wherby he dieth the horse onely shall bée a Deodand and not the trunck timber or c. because it did not mooue Fitz. Cor. 348. 57 If a man fall from a ricke or houell of corne hay Falling from a houel or rick or c. whereby hée is killed the same houell or ricke shall be forfeit to the king as a Deodand And so Deodands may be of some things that a man doth moue vnto or from them as well as of those things which moue to a man to kill him 58 If a man do fall from a ship that is sailing and dye thereof Falling from a ship neither the marchandise nor any other thing in the ship is the cause of his death but onely the ship Bracton Britton and therefore the ship only shal be a Deodand And that ship must be vpon the fresh water for if it be vpon the salt water and one doe fall from it then it shal be no Deodand Within the age of xiiij yeares 59 If he that doth come to his death by any casualtie Fitz. Cor. 389. be within the age of xiiij yeares nothing shal be forf to the king as a Deodand for him for the form of the Presentment is A. filius B. vltra aetatem quatuor decem annorum sed quaere The Sherife shal be charged with the Deodand 60 The Sherife of that countie where a Deodand shall be found to bee Fitz. Cor. 298. shall be charged with the price of euerie Deodand and shal answer for it and he shall leuie the value thereof of the same towne where it falleth notwithstanding it was not committed to them to keepe And therefore when such a mischance is found the presenters thereof must also find appraise the Deodand A man found dead in the field 61 If a man be found dead in the field his apparell Fitz. Indict 27. and the money which he hath about him shal be giuen to a Church and shal be distributed to the poore c. and it shall not be taken as a Deodand for it doth varie from the nature of a Deodand being no cause of his death But that distribution shall bee in case where the same man is vnknowne for if he be knowne his money apparell and other things about him shal be deliuered to his executors or administrators or to the Ordinarie ⧠Felonies by the Common Law Larcenie Theft 1 LArcenie is a fraudulent taking away of another mās goods aboue the value of twelue pence What is Larcenie with intent to steale them without the knowledge of him whose the goods be 17. H. 8. 22. For if the goods do not excéed the value of twelue pence it is not felonie but petit Larcenie Fitz. Cor. 430. 451. 27. H. 8. 22. for the which the offendor shal be imprisoned Petit larcenie or otherwise punished by the discretion of the Iustices before whom hee is arraigned and also shall forfeit his goods but he shal not be put to death And this intent of stealing to make it Larcenie The intent of the stealing must be at the time of the receit of the goods ought to bee at the time when the partie doth first come to the possession of the goods for if the partie doth come lawfully to the possession of the goods though hée hath an euill intent after to conuert them to his owne vse it is not felonie in him As if a man doth deliuer goods to another who after doth conuert them to his owne vse it is not felonie in him 13. Ed. 4. 9 for no felonie is intended to be done but with violence and vi armis contra pacem which cannot be supposed in this case séeing they were deliuered vnto him by the owner of them and so hée came lawfully to them 2 If any person at seuerall times doe steale seueral parcels of goods which parcels being put together Fitz. Cor. 415. do amount aboue the value of xij d. it is felonie Stealing goods at seuerall times aboue the value of xij d. Felonie in seuerall persons and the offendor shall be hanged And if two thrée or more together doe steale goods to the value of twelue pence Fitz. Cor. 404. this is felonie in them all for the felonie in them is seuerall though the stealing be ioint Fitz. Cor. 451. 3 If any person be indicted for stealing of goods aboue the value of twelue pence and arraigned thereupon The Iurie may find an vnder value of the goods yet the Iurie that passeth vpon his arraignement may giue a speciall verdict and say that the goods did not excéed
diuers euill disposed persons being married did run out of one countrey into another or into places where they were not knowne and there became to be maried hauing another husband or wife liuing to the great dishonor of God vtter vndoing of diuers honest mens children and others therfore by a stat made anÌ„ 1. Felony in marying vntill the former husband or wife be dead Iac. it was enacted St. 1. Iac. 11 That if any person or persons within his Ma. dominioÌ„s of England Wales being maried or which hereafter shall marry do marry any person or persons the former husband or wife being aliue that then euery such offence shal be felony and the party parties so offending shall receiue such the like procéeding triall and execution in such county where such person or persons shal be apprehended as if the offence had bin committed in such county where such person or persons shal be takeÌ„ or apprehended Prouided alwaies that this act shall not extend to any person or persons whose husband or wife shal be continually remaining beyond the seas by the space of 7. yéeres together or whose husband or wife shall absent him or her selfe the one from the other by the space of 7. yeares together in any parts within his Ma. Dominions the one of theÌ„ not knowing the other to be liuing within that time Prouided also that this act shall not extend to any person or persons that are or shal be at the time of such mariage diuorced by any sentence had or hereafter to be had in the Ecclesiasticall Court or to any person or persons where the former mariage hath bin or hereafter shal be by sentence in the Ecclesiasticall court declared to be void and of no effect Nor to any person or persons for or by reason of any former mariage had or made or hereafter to be had or made within age of consent No corruptioÌ„ of blood or disheritance Prouided also that no attainder for this offence made felony by this act shall make or worke any corruption of blood losse of dower or disinherison of heire or heires Infected with the plague 8 By the stat made anÌ„ 1. Iac. it was ordained St. 1. Iac. 31 That if any person or persons infected with the plague shal be by the Maior Bailifes Constables or other head officers of any City Borough Town corporat priuiledged place or Market Towne or by any I. of Peace Constable Headborough or other officer of the county if any such infection be out of any City Borough Towne corporate priuiledged place or market towne commaunded or appointed to kéepe his or their house for auoiding of further infection shall notwithstanding contrary to such commandement wilfully contemptuously goe abroad shall conuerse in company hauing any infectious sore vpon him vncured then such person persons shal be taken adiudged a felon and suffer death as in case of Felony But if such person shall not haue such sore found about him theÌ„ for his said offence to be punished as a vagabond should or ought to be by the stat made 39. El. 4. for the punishment of vagabonds and further to be bound to his or their good behauior for one yéere but no attainder of felony by vertue of this act shal extend to any attainder or corruption of blood No corruptioÌ„ of blood or forfeiture or forf of any goods chattels lands tenements or hereditaments St. 35. El. 1 St. 2. Iac. 25 9 By the stat made AnÌ„ 35. El. it was ordained That if any such offendor Abiuration by a Recusant which by the tenor effect of the said act intituled an act to retaine the Quéens subiects in due obedience is to be abiured shal refuse to make such abiuration as by the said stat is appointed Or after such abiuration shall not goe to such hauen and within such time as is appointed and from thence depart forth of the realme according to the said statute Or after his departure shall returne and come againe into any of the Q. Realmes or Dominions without her speciall licence in that behalfe first had and obtained Then in euery such case the person so offending shall be adiudged a felon suffer as in case of felony without benefit of clergy Prouided that the wife of such offendor by force of this act shal not loose her dower nor that any corruption of blood shal grow or be by reason of any offence mentioned in this act But the heire of such offendor by force of this act shall and may after the death of euery such offendor haue and enioy the lands tenements and hereditaments of such offendor as if this act had not bin made Prouided that no Popish Recusant or feme couert shall be bound to abiure by vertue of this act St. 35. El. 2. 10 By a stat made an 35. El. it was enacted That any such offendor Abiuration of a Recusant which by the tenor intent of the act made to restrain Popiâ—h Recusants to some certaine place or abode is to be abiured shal refuse to make such abiuration or after such abiuration made shal not go to such hauen and wiâ—hâ—n such time as is appointed and from thence depart out of the realme according to this act Or after such his departure shall returne or come againe into any of her maiesties realmes or dominions without her maiesties speciall licence in that behalfe first had and obtained then in euery such case the person so offâ—nding shall be adiudged a felon and shall suffer and loose as in case of felony without benefit of Clergy St. 25. H. 8 6 St. 5. Eli. 17. 11 By a stat ordained anÌ„ 25. H. 8. and made perpetuall an 5. El. it was enacted That the detestable abominable vice of Buggery Buggery committed with mankind or beast shal be adiudged felony and such order forme of proceâ— therein shal be vsed against the offendors as in cases of felony at the common law And the offendors being thereof conuict by verdict confession or â—â—iclary shal suffer such pains of death losses penaltâ—es of goods catteâ—s debts lands tenemeÌ„ts and hereditaments as felons be accustomed to do according to the order of the common law of this Realme And no person offending in such offence No clergy shall be admitted to his Clergy And I. of Peace shall haue authority within the limits of their iurisdiction and commission to heare and determine the same as they haue in cases of other felonies St. 21. H. 8. 7 St. 5. El. 10. 12 By a statute prouided An. 21. H. 8. and made perpetuall AnÌ„ 5. Seruants imbesiling their masters goods El. it was established That all and singular seruants to whom any caskets iewels money goods or cattels by his or their master or mistresse shall be deliuered to kéepe if any such seruant or seruants withdraw him or them from their
said master or mistresse go away with the said caskets iewels mony or cattels or any part thereof to the intent to steale the same defraud his or their said master or mistresse thereof contrary to the trust confidence in him or thē put by his or their master or mistresse or els being in the seruice of his said master or mistresse without assent or commaundement of his master or mistresse hee imbesill the same caskets iewels money goods or cattels or any part thereof or otherwise conuert the same to his owne vse with like purpose to steale it if the said caskets iewels money goods or cattels that any such seruant shall go away with or which he shall imbesill with purpose to steale it as is aforesaid be of the value of forty shillings or aboue then the same false fraudulent and vntrue act shal be from henceforth déemed and adiudged felony and he or they so offending shal be punished as other felons be punished for felonies cōmitted by the course of the common law Prouided alwaies that this act or any thing therein contained shall not in any wise extend or be preiudiciall to any apprētice or apprētices nor to any person being within the age of xviij yéeres going away with his or their masters goods or iewels or otherwise conuerting the same to his or their owne vses during the time of their apprentiship or being within the said age of xviij yeares but that euery apprentice or apprentices such person or persons being within the said age doing or offending contrarie to this act shal be and stand in like case as they and euery of them were before the making of this act If a man do deliuer an obligation to his seruant to receiue xx M. 25. H. 8. Dyer 5. l. and the seruant doth receiue the money of the obligor Receiuing money vpon an obligation and thē goeth away with the same or doth conuert it to his owne vse this is not felony within the compasse of the foresaid stat of 21. H. 8. for the master did not deliuer any goods to his seruant in this case but an obligation which is not valuable but a thing in action and moreouer the money was not deliuered to the seruant by the hands of his master but by the obligor But if one of a mans seruants doth deliuer to another of his seruants goods of the masters being aboue the value of 40. s̄ and he doth go away with it or conuert it to his owne vse this is felony If a man do deliuer to his apprentice wares or marchandises M. 25. H. 8. Dyer 5. to sell at a faire Receiuing money for wares or a market and he selleth them and receiueth the mony and then goeth away with the mony or conuerteth it to his own vse this is not felony by the stat of 21. H. 8. for he had not the mony by the deliuery of his master neyther went he away with the thing that was deliuered vnto him Seruants imbesilling their masters goods after his death 13 By the stat of An̄ 31. H. 6. it was ordained St. 31. H. 6. 1 That executors shall haue a writ out of the Chancery by the aduice of the Chauncelor two chiefe Iustices and the chiefe Baron of the Exchequer with two proclamations returnable in the K. Bench against such houshold seruants of the Testator as haue spoiled or eloigned the goods of their master after the death of the Testator And if the writ be returned serued the defendants make default they shall be attainted of felony and if they appeare they shal be cōmitted to prison there to remaine at the discretion of the Iustices vntill the defendants do answer vnto the said executors in such actions which the said executors will declare against them or any of them by bill or writ for the riot taking and spoiling aforesaid and that the same actions be determined so that such actions be pursued with effect and not slackly to retaine the same persons in prison And if the same persons be enlarged out of prison by the said Iustices then they shal find sufficient sureties to the executors by recognizance to kéepe such daies as they shal haue assigned by the Court. And if the kéeper of the prison whereunto they shal be committed doe let them go at large without order of the Iustices then the said kéeper shall forfeit xl l. to the executors No protection shall lye in any action vpon this statute 14 By the stat of An̄ 14. E. 3. it was accorded Enforcing a prisoner to become an approuer That shirifes shall haue the kéeping of gaoles St. 14. E. 3. 10 as they had wont to haue and put in such kéepers for whom they will answer And if any kéeper of prison or vnder kéeper shall by too great dures of imprisonment and paine cause any prisoner which he hath in his custody to become an approuer against his will and is thereof attainted he shall be adiudged a felon 15 By the stat of an̄ 5. El. it was enacted Egyptians that euery person persons which shal be séene or found within this realme of England or Wales St. 5. El. 20. in any cōpany of vagabonds commonly called or calling themselues Egyptians or counterfeiting transforming or disguising thēselues by their apparell speech or other behauiour like vnto such vagabonds commonly called or calling themselues Egyptians so shall or doe remaine continue in the same by the space of one moneth then the same person or persons shall be déemed iudged a felon and felons and shall suffer paines of death losse of lands goods as in cases of felony by the order of the common lawes of this realme Triall and shall vpon triall of them or any of them be tried in the countrey and by the inhabitants of the county or place where he or they shall be apprehended or taken and not per medietatem linguae No Clergy and shall loose the priuiledge and benefit of Sanctuary and Clergy Prouided Xiiij. yeares That this act shall not in any wise extend to any child or children being within the age of 14. yeares St. 8. H. 6. 12. 16 By the stat made An. 8. H. 6. it was ordained That if any Record Imbesilling of Records or parcell of the same Writ Returne Pannell Proces Warrant of Atturney in the Courts of Chauncery Exchequer the one Bench or the other or the Treasury be willingly stolne taken away withdrawne or auoided by any Clerke or other person by cause wherof any iudgement be reuersed such stealer taker away withdrawer or auoider their procurors counsellors abbettors being thereof indicted and by proces thereupon made therof duly conuict by their owne confession or by enquest to be taken of lawfull men wherof the one halfe shal be of the men of any court of the same courts and the other halfe of other shal be iudged for
Felonie as Rape Robberie c. for in Rape if one do not commit the act Fitz. Cor. 314. 350. but aideth and assisteth his companion hee is principall as well as hee that committeth the fact And the same law is if one doe commit a Robberie and others be in his companie and do come with him for that purpose they bée all principals 13 Accessorie after the offence is he Accessorie after the offence committed who knowing that another hath committed a felonie doth receiue him ayd him or comfort him As if one do receiue a felon before he is attainted of felonie knowing of the felonie which he hath committed 26. Ass p. 47 or doth fauour him or ayd him with money meat drinke or lodging by that meanes he shal be adiudged accessorie What act of the accessorie maketh him a felon what not But this difference is to be taken of aid or counsell for if he aid him by his good word or suit for his deliuerance or do send a letter for his enlargement this doth not make him acessorie to the felonie Receit of a felon attainted in the same Countie 14 If one receiue a felon that is attainted of Felonie by verdict or confession in the same Countie where the receiuer is commorant or dwelling and doth ayd him he is accessorie to the Felonie Fi. Cor. 377 Bracton though he doth not know that the other hath committed Felonie because hee is a Felon by matter of record whereof euerie straunger dwelling or commorant in the same Countie is to take notice And it is Felonie if one be indicted of the receit of another that is Outlawed of Felonie in the same Countie where the receiuer dwelleth for that the offendor is attainted of Felonie in that Countie by matter of record S. Indictments 34. Receit of a felon attainted in another Countie 15 If one be attainted of Felonie by verdict confession Fi. Cor. 377 or outlawry in one Countie and another doth receiue him and aid him in another Countie he is not accessorie to the Felonie vnlesse he doth know of the Felonie because hée cannot take knowledge of an act done in another Countie though it be by matter of record S. Indictments 34. Indictment of an accessorie in one County to an offence done in another 16 Because that Théeues and Robbers that had robbed or stollen in one Countie would conuey their spoile or part thereof so robbed and stollen vnto some of their adherents in another countie where the principall offence was not committed who knowing of such felonie willingly and by couin did receiue the same in which case though the principall felon were attainted in one countie the accessorie escaped by reason that he was accessorie in another Countie and that the Iurors of the same countie by the common law could take no knowledge of the principall felonie ne attainder in the first countie and so such accessories escaped thereof vnpunished For the remedie whereof by a Statute made Anno 2. 3. E. 6. it was ordained St. 2. 3. E. 6. 24. That where any murder or felonie shall be committed in one countie Triall of an accessorie in one County to an offence done in another and another person or moe shall be accessorie to the same in another countie Then an Inditement found or taken against such accessorie and accessories vpon the circumstance of such matter before the Iustices of Peace or other Iustices or commissioners to enquire of felonies in the countie where such offences of accessorie shal be committed shal be as good in the law as if the said principall offence had bin committed within the same coūtie where the same indictment against such accessorie shal be found And the Iustices of Gaole deliuerie or Oyer Terminer or two of them of or in such countie where the offence of any such accessorie shal be committed or done vpon suit to them made shall write to the Custos Rotulorum or Kéepers of the Records where such principall shal be attainted or conuict to certifie them whether such principall be attainted or conuicted or otherwise discharged of such principall felonie who vpon such writing shall make sufficient Certificat in writing vnder their Seale or seales to the said Iustices whether such principall bee attainted conuicted or otherwise discharged or not And after that they doe certifie that such principall is attainted conuicted or otherwise discharged of such offence Then the said Iustices c. shall procéed vpon euery such accessorie in the Countie where he became accessorie in such manner and forme as if both the said principall offence and accessorie had beene committed in the same Countie where the offence of accessorie was committed and euery such accessorie and other offendors aboue expressed shall answer vpon their Arraignments and receiue such Triall Iudgement order and execution and suffer such forfeitures as is vsed in other cases of Felonie 27. Ass p. 69 25. Ed. 3. 39. 9. H. 4. 1. 17 If one receiue goods stollen or any parcell thereof yet hée shall not bée accessorie to the felonie if he do not receiue the Felon himselfe But if he doe receiue the goods stollen Receiuing of of stolne goods and also the Felon he shall be accessorie to the felonie so that the same Felon be before accessorie of the same felonic S. Indict 34. Fitz. Cor. 427. 18 If a Felon doth flie and come to his friends house Receiuing the Felon and his friend doth shut the doore and the countrey which pursueth him doe thinke that the Felon doth continue in the house whereas he escapeth in this case the friend shall bée adiudged accessorie to this felonie for that his friend did ayd and reléeue him and endeuoured to defend him from the iustice of the law S. Escape 2. 26. Ass p. 52 19 And also a man may be accessorie to an accessorie Accessorie to an accessorie as if one doe receiue him who is accessorie to a felonie by this meanes he himselfe shall be accessorie to this accessorie because that first accessorie is a felon 1. H. 7. 6. 20 If one doe rescue him that is arrested conuicted Rescue of a Felon or attainted of felonie hée is a principall Felon and not an Accessorie and the reason is for that this is a new felonie by it selfe though it doth depend vpon the former felonie 21 A woman couert cannot bée accessorie in felonie to her husband A wife no Accessorie to her husband A maried wife a principall Felon for that by the lawes of God shée ought not discouer his counsell But by force of a Statute made Anno 1. Mar. a wife shall be a principall Felon if shee doe send deliuer or conuey any reliefe to her husband which amongst others to the number of twelue or aboue shall bée assembled practise and put in vre any of the offences prohibited by the said stat prouided against Rebellious
partie most interessed or grieued by the same murder or felonie is to prosecute sute against the saide offendor by Appeale and thereby to séeke reuenge against him for the wrong done to himselfe or his auncestor or else the offendor is to be indited at the Kings sute whose peace hée hath broken and whose lawe he hath offended and who hath a speciall interest in all manner of treasons and felonies to punish them to wéede them out of his kingdomes and dominions and to defend his subiects from them And therefore I am to expresse in this Chapter and the next what an Appeale of felonie is and what an Indictment is by whom for whom and against whom and in what cases they are to be begunne prosecuted and maintained what defences or pleas are to be made or pleaded by the supposed offendors vnto them and what counterpleas may be obiected against the same plees Appeale of death An Appeale is a plaint of one person made against another with an intent to attaint him of felonie by a course of Lawe prouided therefore which appeale may be brought against a woman couert without her husband against an infant and all others that can commit felonie and a woman may haue an appeale for the death of her husband Appeale by a woman of the death of her husband because the husband and wife be one flesh but of the death of none other by force of the Statute of Magna Charta which hath ordained That none shall be taken St. 9. H. 3.34 or imprisoned by the appeale of any woman for the death of any other than of her husband And therefore if a woman doe bring an appeale of the death of her father and the Defendant would admit it yet the Court will abate it 10. Ed. 4.7 Plow Com. fol. 85. because it is contrary to the said Statute Appellāt conueieth his title by a woman 2 As a woman shall haue no Appeale of the death of any other but of her husband No more shall any cosin of him that was slaine who maketh his conueiance in kinred by a woman haue any appeale of the death of him that is killed notwithstanding he be issue male and not female Appellant conueyeth his title by a woman and notwithstanding that the woman by whom he maketh his conueiance died in the life time of him 20. H. 6.46 Fi. Cor. 385 17. Ed. 4.1 of whose death the appeale is commenced As if a man haue issue one onely daughter who marrieth a husband hath issue a sonne and dieth and after the father of that woman is slaine In this case the sonne of the woman shall not haue an appeale of the death of his saide grandfather though hee be his next heire at the common lawe and inheritable to his land because his mother was foreclosed of it by the foresaid statute of Magna Charta and so likewise he which hath none other title thereunto but that which he deriueth from his saide mother Fi. Cor. 384 17. Ed. 4.1 But if he that was slaine haue none heire on the fathers side then the vncle or next of kinne on the mothers side shall haue the appeale yea though he doe conuey his title thereunto by a woman 3 By the auntient lawe of this Realme a woman could not haue an appeale of the death of her husband vnlesse her said husband were slaine betwéene her armes within the yéere and day before Neither could shée or any other haue an appeale vnlesse she or he were present at the death of the partie slaine and sée it But that Lawe was altered by the Statute of Gloucester St. 6. Ed. 1.9 whereby it was ordained That no Appeale shall be abated so soone as they haue béene heeretofore But if the appellant in an appeale doe declare the déede the yeare the day the houre The declaration in appeale of murder the time of the King and the Towne where the déede was done and with what weapon hée was slaine the appeale shall stand in effect And the appeale shall not be abated for default of fresh sute where a man doth sue within the yeare and the day after the déede done 50. Ed. 3.15 28. Ed. 3.91 27. Ass p. 3. 4 If a woman will haue an appeale of the death of her husband The woman must be the deads lawfull wife it is requisite that shée be not onely his wife indéede viz. de facto but also lawfully and in right viz. de iure for neuer accoupled in lawfull marriage is a good plea to barre her of her appeale And it shall be tried by the Bishop whether she be his lawfull wife or not 20. H. 6.46 12. El. Dyer 296. 5 It is requisite that a woman who will maintaine an appeale of the death of her husband shall liue sole and vnmarried The woman must liue vnmarried for by her second marriage her appeale is extinct though her second husband doe die within a yeare and day after the death of her first husband And if a woman doe bring an appeale of the death of her husband and hanging the Writ shée doth marry another husband her appeale shall abate for euer 11. H. 4.46 6 If a woman doe bring an appeale of the death of her husband A woman marrieth betweene iudgemēt executiō and doe pursue the Defendant vntill Iudgement And then after iudgement and before execution shée marrieth an other husband In this case shée shall not obtaine execution viz. the Defendant shall not be hanged at her sute for shée hath willingly lost the name of her first husband before shée hath obtained the effect of her sute and the reuenge which shée brought her appeale for Where appeale lieth but no dower 7 There be some Cases where a woman shall haue an appeale of the death of her husband though she be not endowable of the possession of the same husband As where her husband is attainted of treason 27. As p. 41 35. H. 6.58 and after one doth kill him his wife shall haue an appeale and yet she shall haue no dower And in like sort if a woman doe elope from her husband and after one doth kill him she may maintaine an appeale against the offendour but no writ of dower against his heire And many other Cases there be where a man was so seised of his lands that his wife is not thereof endowable by the Lawe And yet if hee be slaine she may maintaine an appeale against the manqueller Where the wife may haue appeale none other shall 8 Where a woman may haue an appeale of the death of her husband 20. H. 6.47 Kel fol. 120 none other shall haue it during her life nor after her death though the wife doe die within the yeare and day after the death of her husband and before the appeale commenced for that the appeale was once out of the blood it shall not be restored to his
blood againe If the husband be killed by his wife The husband killed by his wife his sonne shall haue an appeale 33. H 8. Dyer 50 18. Ed. 4.1 And yet if in that case the King doe pardon the wife all treasons the sonne shall be barred of his appeale Appeale of death by the heire 9 If he that was slaine had no wife liuing at the time he was killed then his next heire by the common Lawe if he be male shall haue the appeale But if hée which bringeth the appeale be the next heire male to him that was slaine yet if there be another liuing which is his heire by the common Lawe though not his heire male his appeale shall abate As if he that was slaine had issue a daughter and no sonne 27. As p. 25. Fi. Cor. 384 his brother cannot maintaine an appeale against the offendor though hée be his next heire male because he is not next heire by the common Lawe to him that was slaine but his daughter is And by the same reason a Bastard nor the youngest sonne which doth inherite lands in Borough English A Bastard Heire in Borough English shall not maintaine an appeale because neither of them is heire by the common Lawe It was a custome in olde time if one were found guiltie in an appeale of murder that his wife The maner of a murderers death and all the nearest of his kinne which was murdered 11. H. 4.11 Plo. com 306 should drawe the felon who committed the murder by a long rope to the place of execution An appeale dieth with the Appellant or by his non-suite c. 10 This appeale of the death of the auncester is so tied and affixed to the next heire male at the Common Lawe of him that was slaine that if it be once attached by him although that hée die hanging the suite or be non-suite therein or doe discontinue the suite and that within the yéere 38. H. 6.13 9. H. 7.5 16. H. 7.15 yet the appeale is extinct for euer because it is but a personall action and not auncestrell for he that was slaine could not haue maintained it and therefore being but personall it doth die with the person of the appellant But it is otherwise if the appeale were not attached by the heire during his life 11. H. 4.11 â—0 H. 6.46 but that hée died before hée brought his appeale or died in the life of his auncester that was killed In that case hée which is next heire male liuing shall haue the appeale 9. H. 7.5 Stamf. fo 59 11 If the eldest sonne before the appeale commenced and within the the yeare doth release the appeale and then dieth The heire doth release and die the second sonne and euery other which claimeth as heire to the partie slaine shall bée barred thereby 16. H. 7.15 38. H. 6.13 12 If the eldest sonne doe bring an appeale and hath iudgement Recouery and death before execution and before execution of the offendor dieth his heire shall not haue execution for if he should he is to haue it as heire to him that recouered and not as heire to the partie slaine which cannot be for hée that demaundeth reuenge of his auncestors death must make himselfe immediate heire to the same auncestor which was slaine or otherwise his sute shall not be allowed which the heire of the eldest sonne in this case cannot doe 13 If the eldest sonne after the title of appeale accrued vnto him The eldest sonne disabling himselfe or during the life of his auncester that was slaine doe disable himselfe by attainder of felonie or by being a Monke a Priest or mayhemed by the Defendant Fitz. Cor. 235.322 or by any other cause So that by such disabilitie hee cannot haue an appeale yet the second sonne shall not haue it 14 If the eldest sonne doth kill his father or his mother Killing father mother brother or wife the second sonne shall haue an appeale against him Fi. Cor. 459. And if there be thrée brethren and the middlemost killeth the elder brother the youngest brother shall haue an appeale against him And yet in the foresaide cases hée that bringeth the appeale 18. Ed. 4.1 33. H. 8. Dyer 50. is not heire to him that is slaine And if the husband doe kill his wife his sonne shall haue an appeale against him 1. H. 4.6 Littl. vill 15 If the Lord doe kill his Villaine the heire of him that was slaine The Lord killeth his villaine may haue an appeale against his Lord notwithstanding that the Plaintifs in the appeale is villaine to the Defendant for the villaines heire doth not sue for the recouerie of lands goods or liberty from the Lord but onely for a lawfull reuenge of his auncesters death And if the villaines heire should not haue an appeale in this case the said offence should remaine vnpunished by appeale for none other may pursue it 41. As p. 14. 45. Ed. 3.25 27. Ed. 3.83 Kel fol. 120 32. As p. 8. 16 An Infant An Infant within the age of twenty and one yeares may haue an appeale of the death of his auncester and in like sort hée may haue any maner of appeale But notwithstanding the plea shall remaine to be tried vntill he come to his full age of one and twentie yeares for that in this case the Defendant cannot wage battell against him Attamen quaere A man of 70. yeares of age 17 A man of the age of thrée score and tenne yeares may haue an appeale of the death of his auncestour Fi. Cor. 385 and in like sort may haue any manner of appeale and yet being of that age hée shall put the Defendant from waging of battell with him Disabilities to bring an appeale 18 If the Plaintife which ought to sue the Appeale be attainted of treason or felonie or a Monke or a Priest or mayhemed by the Defendant Fi. Cor. 32â— he shall not haue an appeale Disabilities in the appellant 19 A man that is not of perfect memorie or that is deafe and dumbe Britton or a Lazar or a foole naturall shall not haue an appeale of death nor any other appeale For battell cannot be waged against any of them euery of them being vnperfect to performe the same Pleading that the appellant hath an elder brother 20 If one brother doe bring an appeale of the death of his auncestor 7. Ed. 4. 15 it is no plea for the appellée to say that the said auncestor at the time of his death and after the Writ purchased had an elder brother named B. to whom the appeale is giuen and not to him that is plaintife for it may be that the same B. was his brother of the halfe bloud And therefore the surest way is to begin his plea with the father of him that was slaine as to say that such a man tooke to
whereof he pleadeth that he was attainted but of that felony wherof he is attainted he shall not answer any more after that he hath the K. pardon thereof 52 A man attainted of felony is he Who is sayd attainted and who conuict of felonie which vpon his arraignement submitting himselfe to be tried by the country is found guilty of felony by the verdict of xij men or doth confesse the felony in court of Record before the Iudge vpon his arraignment or is indicted of felony and for default of apparance is outlawed and in any of the said thrée cases hath his iudgement of death A man conuict of felonie is he who being indicted of felonie vpon his arraignement doth submit himselfe to be tried by the country and is found guiltie of felonie by the verdict of twelue men and then before iudgement praieth his clergie and hath his clergie and is burned in the hand This difference there is betwéene a man attainted of felonie and a man cōuicted of felony as touching their arraignments againe for other offences for a man attainted of felonie shall not be arraigned againe of any other offences whatsoeuer whether clergy were allowable in them or not vnlesse it be in some speciall cases before declared because there can no more be recouered of him than is recouered neither can he forfeit more than he hath forfeited But because of a clerke conuict there may be more recouered than is recouered he may forf more than he hath forfeted therfore by the stat of An. 8. El. 18. El. it was ordaind St. 8. El. 4. St. 18. El. 6. S. Appeales 56. 57. That euery person which shal vpon his arraignment for any felony be alowed his clergie shal answer to all former felonies as though no such admission of clergie had béene If a man that is indicted of piracie doth stand mute or wil not answer directly or c. whereupon iudgement of paine for t dure is giuen against him but hée is not put to execution and after by a generall pardon by act of parliament 14. El. Dyer 308. all contempts pains and executions be pardoned but all piracies bee except in this case the same party may be indicted and arraigned againe for another robberie vpon the sea or piracie committed vpon the sea at the same time that hée did the first ⧠Mainprise and Bayle 1 WHen the defendant in case of felony is taken and arrested he will ofttimes desire to be let to baile or mainprise and therefore it is to be considered in what cases the prisoner by the law is mainpernable and in what not In what case a prisoner is mainpernable in what not There be two sorts of offendors in felony viz. the Principall and the Accessory The Accessorie is repleuisable by the common law vntil the Principall be attainted but not after as it appeareth by Bracton Britton and diuers iudgements But sithence that time the law hath bin put in vre to the contrary 40. E. 3. 42 43. Ed. 3. 17. 27 Ass p. 10 2. 3. P. M. Dy. 120 St. 3. E. 1. 15 viz. That after plea pleaded notwithstanding the principal be attainted yet the accessorie shal be let to mainprise The accessory let to mainprise and though it be in appeale of death And the reason is because the stat of W. 1. affirmeth expresly That they which be indicted of receit of théeues or felons or of commandement or force or aid of the felony committed shal be let out by sufficient suertie which stat is expounded so fauorably towards the accessory that those be vsed to be let to baile which be indicted of abetment consent or procuremēt And yet such accessories be not expresly contained in the said stat Register fo 270. And so the accessorie as well in case of the death of a man as in other felony is to bee let to mainprise 25. E. 3. 44. 44. E. 3. 38. 21. E. 4. 71. 21. Ed. 4. 25. 2 The principall in case of the death of a man is not to be let to mainprise The principal in death either by the common law nor by the stat but in some speciall cases for if an appeal of death be commenced which is not grounded vpon an indictment but is suggested to be begun vpō malice and that some others were indicted of the same persons death yet because the appeale was of the death of a man and the malice suggested was not confessed of the K. or appellants part the Iust wold not let the appellée to mainprise 48. E. 3. 22. And so it séemeth that notwithstanding it bée an appeale of death yet if there be no indictment to affirme the same appeal The principal in appeale of death let to mainprise the Iust vpon the consideration aforesaid 2. 3. P. M. Dy. 120 or such like may let the defendant to mainprise though he be appealed as principall 3 An Appeale of death was remooued out of the countie into the K. Bench by a Certiorari 48. Ed. 3. 22. a Scire fac ' was sued against the plaintife in the appeal which was returned Nihil and so it was returned vpon the Sicut alias And thereupon the Iust considering that it was a mischiefe to the plaintife to loose his suit and to yéeld damages whereas he was neuer warned and peraduenture hath somewhat in another countie and on the other side it was inconuenient for the appellée to remaine continually in prison The principall in appeale of death let to mainprise therefore they awarded another Scire fac ' against the appellant returnable at a certaine day before which day they would bee aduised what was by law to be done and in the meane time they did let the appellée to mainprise Excommunication in the plaintife 4 If in an Appeale the def do plead Excommunication in the plaintife the appellee shal be let to mainprise from day to day vntil the plaintife be absolued 3. As p. 12. 13. E. 4. 8. though it be in an Appeale of death or otherwise the appellée should remain in prison vntill the pl. were assoiled which peraduenture will neuer be And in respect of this mischiefe it was ordained by the stat of 3. H. 7. St 3. H. 7. 1. That he which is within the yeare acquited of murder at the K. suit shal be sent to prison againe or otherwise let to baile vntill the end of the yere within which time the partie is to haue an Appeale if he will 5 Because Sherifs and others did take kéepe in prison some persons accused of felony and presently did let out to baile such as were not repleuisable and kept in prison such as were mainpernable to the intent to get of the one and to grieue the other And forasmuch as it was not before determined which persons were mainpernable Not bailable by the common law and which were not
but only they that were taken for the death of a man by the cōmandement of the K. or his Iust or for the forest therefore by the stat of W. 1. viz. 3. E. 1. it was ordained St. 3. E. 1. 15 That prisoners which before were outlawed Who are mainpernable and who not and they which haue abiured the realm prouers and they which be taken with the maner and such as haue broken the K. prison théeues openly defamed knowne and such as be appealed by prouers so long as the prouer doth liue except he be of good fame and such as be taken for burning of a house feloniously done or for false mony or for counterfeiting the Kings Seale Or persons excommunicat taken at the Bishops request or for a manifest offence or for treason touching the King shall be in no wise mainpernable by a common writ nor without writ But souch as be indicted of larceny by enquests taken before Sherifs or Bailifs by their office or of light suspition or for petit larceny that amounteth not aboue the value of xij d. if they were not guiltie of some larceny before or guiltie of receit of théeues or felons or of commandement or force or of aid in felony done or guilty of some other trespas for which one ought not to loose life or member And a man appealed of an approuer after the death of the approuer if he be no common théefe nor defamed shal be let out by sufficient suertie whereof the Sherife will be answerable and that without giuing any part of their goods Bailement by the Sherife If the Sherife or any other let one go at large by suertie St. 3. E. 1. 1◠which is not repleuisable if he be Sherife Constable or any other Bailife of fée which hath the kéeping of prisoners and is thereof attainted he shal loose his fée and office for euer And if the Vndersherife Constable or Bailif of such as haue fée for kéeping of prisoners do it contrary to the will of his Master or any other Bailife being not of fée they shal haue iij. yeres imprisonment and make fine at the K. pleasure Withholding of prisoners repleuisable Whosoeuer doth withhold prisoners repleuisable St. 3. E 1. 15. after they haue offered sufficient suerty shal pay a grieuous amerciamēt to the K. he that doth take any reward for the deliuerance of such shall pay double to the prisoner and also a grieuous amerciament to the King 6 By the foresaid Stat. of West 1. 15. it doth appeare that in foure cases a man was not mainpernable at the common law In what cases no mainprise at the common law viz. they that were taken for the death of a man or by the Kings commandement or of his Iustices or for the forrest Touching the death of a man it is intreated of before And as concerning the Kings commandement this is intended the Kings commaundement The kings commandement by his owne mouth or by his councell which is incorporat to him doe speake with the Kings mouth and by authoritie from him Or otherwise if those words should be taken his generall commandement it may be said that euery Capias in a personall action is the Kings commandement for it is Precipimus tibi quod capias c. and yet in that case the defendant is repleuisable by the common law And as touching the Iustices commandement The Iustices commandement this shall be intended their absolute commandement for if it be their ordinary commandement he is repleuisable by the Sherife sauing in certain cases prohibited by the statute 7 Because in times past diuers persons that were indited of felonies robberies larcenies did remoue the same inditements into the K. Bench there yéelded themselues prisoners were presētly bailed by the marshals of the same Bench and after did lie in wait to kill or misuse their inditors And also for the certain persons appealed of felonie after the Exigent awarded did yéeld themselues in the K. Bench St. 5. Ed. 3. 8 then were let to baile by the marshals of the said bēch for the preuention whereof it was enacted by a statute made an̄ 5. E. 3. The marshall of the Kings bench shall baile no prisoner That such inditées and appellées shal be safely and surely kept in prison according to the charge which the said marshals shal haue of the Iustices And the marshals of the K. Bench shal not baile any felons but shal kéep them in prison and shal not suffer them to go wandring abroad by baile nor without baile And if any such prisoner be found wandring out of prison by baile or without baile that be proued at the K. suit or the parties the marshals which shal be found guilty thereof shal be halfe yeare imprisoned ransomed at the Kings pleasure And the Iustices shal inquire therof when they sée cause And if the marshals suffer the prisoner to escape by their assent they shal be at the law as before time they haue bin And so it appeareth by this Stat. that imprisonment by commandement of a Iustice was not sufficient to restraine bailement in all cases where bailement was not prohibited by the law A Iustices ordinarie cōmandement and absolute vntil the foresaid Stat. of an̄ 5. E. 3. was made and that is to be intended of an ordinarie commandement of a Iu. for if he doe giue an absolute commandement the prisoner is not baileable As if the Iustice command one to prison without shewing cause why he doth so command or for misdemeanor done in his presence or for some other cause which lieth in the discretion of the Iustice more than in his ordinary power 8 The fourth cause why a man is not repleuisable by the common law is the forrest St. Char. Forest 16. for whereas by the Statute of Charta forestae made an̄ 9. H. 3. and confirmed by King E. 1. The king did graunt for him and his heires that of trespasses committed in his Forrests of vert and venison that the Forresters in whose Bailiwickes such trespasses should be committed should present the same trespasses at the next Swanimot before the Forresters Verderers Regardors and Agistors and other ministers aforesaid by the oathes as well of Knights as others wise and lawful men and not suspitious of the parts next adioyning and néerest where those trespasses shal be so presented and where the truth may best and most certainly be inquired of and the same truth being once found out those presentments by the common assent and agreement of all the Officers aforesaid shal be solemnely written sealed with their seales And if any inditement be made in other manner it shal be accounted void And because the chiefe wardens of Forrests did not obserue the said order but that diuers people were disherited ransomed and vndone by the chiefe wardens of the Forrest on this side Trent and beyond and by other
ministers against the forme of the foresaid great Charter of the Forrest Therefore by the Stat. made an̄ 1. E. 3. it was ordained Punishment for vert or venison St. 1. E. 3. 8 That no man shal be taken or imprisoned for vert or venison vnlesse he be taken with the maner or else indited in forme aforesaid And then the chiefe warden of the Forrest shall let him to mainprise vntill the Eire of the Forrest without taking any thing for his deliuerance And if the said warden will not doe it there shal be a writ awarded out of the Chancerie which was in auncient time ordained for such persons so indited to let him to mainprise vntill the Eire And if the said warden after the receit of the same writ wil not deliuer to mainprise such person indited without delay then the plaintife shall haue a writ out of the Chancerie to the Sherife to attach the said warden to be before the K at a certaine day to answer wherefore he hath not repleuied him that was so taken And the Sherife calling to him the Verderers shall deliuer him which was taken to mainprise in the presence of the Verderers and shall deliuer the names of the mainpernours to the same Verderors to answer in Eire before the Iustices And if the chiefe warden shall be thereof attainted the plaintife shall haue his treble dammage awarded vnto him and the warden shal be committed to prison and ransomed at the Kings pleasure And by the Statute of an̄ 7. R. 2. it was ordained St. 7. R. 2. 4 That if any officer of the Forrest doth imprison any person or doth compell any person to make any Obligation or ransome vnto him against the ordinance aforesaid and is thereof attainted hee shall pay to the partie grieued his double dammages and make fine to the King 9 Whereas the before rehearsed stat of West 1. doth begin with those prisoners which before were Outlawed St. 3. E. 1. 15 c. yet there be some cases wherein such as be outlawed may be let to mainprise as where in an appeal of robberie or other felonie being not for the death of a man the defendant doth come in by Capias vtlagatum In what cases he that is outlawed may be let to mainprise and plead misnaming of himselfe 5. H. 7. 16. and hath a Scire facias against the appellant In this case he shal be let to baile And the same law is if he which is outlawed for felonie be taken and brought to the barre 19. H. 6. 2 and alleageth error in the Record the Court of fauour wil suffer him to find mainprise and to go and séeke to purchase his writ of Error Mainprise during the Prouers life 10 And the foresaid stat of West 1. saith further St. 3. E. 1. 15 that they which be appelled by Prouers shal not be let to mainprise so long as the Prouers doe liue if they be not of good fame yet in some cases he that is appealed by a prouer shal be let to mainprise during the Prouers life as where the Approuer doth waiue his appeale and that the defendant is not appealed by another approuer 25. Ed. 3. 42 hee shal be let to mainprise for if he bée appealed by another approuer hée shall not be let to mainprise And if the Appellée doe vanquish one Approuer in battell yet if he be appelled by another Approuer he shall not be let to mainprise St. 3. E. 1. 15 11 Whereas by the words of the foresaid Statute of West 1. such as be indited of Larcenie by Enquests taken before Sherifs or bailifes by their office shal be let at libertie vpon sufficient suretie Registrum de manucaptione Yet it appeareth by the Register that they shall not be let to mainprise if they be not also of good fame Mainprise vpon good name But if they be of good fame they are to be let to mainprise notwithstanding they be not indited before Sherifes or Bailifes but before any other Iustice that hath authoritie to heare and determine felonie and that aswell the principals as the accessories for the said Stat. of West 1. doth no more restraine the principals than the accessories in those cases where the same statute doth not prohibit to let to mainprise As if a man be indited of Burglarie as principall The principall in Burglarie or robbery mainpernable yet he may be let to mainprise 29. Ass p. 44 Registrum And the principall in an appeale of Robberie may be let to mainprise And in the Register there is a writ de Manucaptione graunted in that case 12 Though it doth not appeare by any words of the foresaid stat of West 1. that it doth prohibit the bailement of those which be attainted by verdict yet it is to be intended that the same Stat. doth as well prohibit the bailement of those which be attainted by verdict as it doth of thē who be attainted by Outlawrie 15. H. 7. 9. for séeing before the Statute of 18. El. 6. if a clerke conuict had beene deliuered to the Ordinarie he was not mainpernable which is a stronger case than a man attainted by verdict Therefore it is cleare No bailement of a prisoner attainted that a man attainted is not mainpernable for if a prisoner after that he hath pleaded not guilty be attainted by verdict that he killed a man in his owne defence or by misfortune yet he shall not be let to mainprise for it is in the Kings pleasure whether hée will grant him pardon or not 25. Ed. 3. 42 Fi. Cor. 354 297. But in that case the Iustices commanded the Sherife to put no yrons vpon the same prisoner and to shew him as much fauour as he could And the Iu. are to certifie the King of the said verdict who at his pleasure may write to the Sherife to baile the same prisoner No bailement of a prisoner conuicted And if a man that is arraigned of homicide doth plead not guiltie and is found guilty doth pray his Clergie 2. El. Dyer 179. and is repried without iudgement he is not baileable for hée is more than vehemently suspected béeing conuicted of felonie St. 3. H. 7. 3. 13 Whereas by the stat of an̄ 3. H. 7. it was enacted that no prisoner arrested for felony should be let to baile or mainprise by any one Iu. of peace but by the whole Iustices or at the least by two of them whereof one to be of the Quorum Since the making of which statute one Iustice of peace in the name of himselfe and one other of the Iustices his companion not making the said Iustice partie nor priuie vnto the case wherefore the prisoner should be bailed hath oft times by sinister labour and meanes set at large the greatest and notablest offendors such as be not repleuisable by the lawes of this Realme and yet the rather to
there shall be assigned good lawfull men in euery Countie to keepe the peace and at the said assignements mention shal be made that such as shal be indited or taken by the said wardens shal not be let to mainprise by the Sherifs nor by any other if they be not mainpernable by the law Nor that such persons indited shal be deliuered Bailement of offendors by sherifes and others but according to the course of the common law And the Iustices assigned to deliuer the gaoles shall haue power to deliuer the Gaoles of those that be indited before the gardeins of the peace And the same gardeins shall send before the said Iust their inditements And the same Iustices shall haue power to enquire of Sherifes Gaolers and others in whose custodie such persons indited shal be if they deliuered or let to mainprise any so indited which be not mainpernable to punish the same Sherifes Gaolers and others if they haue done any thing contrarie to this Statute This statute of 4. E. 3. doth make no mention that the Iustices of Gaole deliuerie shall punish sherifs and others according to the foresaid statute of West as the other statute of 27. E. 1. doth but ordaineth generally that they shal be punished without determining in what maner And yet it is to be intended that they shal be punished according to the forme of the said Stat. of West 1. And moreouer the said Iustices of Gaole deliuerie may punish them by the common law 25. E. 3. 39. for a negligent escape Where mainprise is a negligent escape for it is a negligent escape to let one to maineprise who by law is not mainpernable And one Iustice did in that case set a fine vpon the Sherife for the like Bailement a hundred shillings 16 In all cases where a statute doth ordaine that an offendors bodie shal be imprisoned at the Kings pleasure Imprisonmēt at the Kings pleasure the prisoner cannot be deliuered or let to maineprise vntil the King hath signified his pleasure of him As if one be imprisoned for going or riding armed contrary to the Statute of Northampton made Anno 2. E. 3. 3. 24. Ed. 3. 42. 17 There is a difference betwéene bailement in felonie and bailement in a personall action The differēce betwéene bailement in felonie and in a personall action for in felonie the bailement shall containe a certaine summe of money to be forfeited if the prisoner doe not appeare at a day prefixed And in a personall action it is but fineable 21. H. 7. 20. And the bailement in felonie is Ad standum rectum de latrocinio praedicto secundum legem consuetudinem regni nostri Angliae as it doth appeare by the writs of Manucaptione in the register which doe imply as much as they that haue him to baile shall not onely cause him to appeare but also to answer 18 If one doe find mainprise in Court it is presently matter of Record Mainprise is matter of Record 8. Ed. 4. 5. though it be not entered into the Roll vntil the next Terme Confession of the Offence WHen a prisoner is appealed or indited of treason or felonie and brought to the barre to be arraigned thereof and his inditement is read vnto him he is asked by the Court what he will say vnto it Then either hée doth confesse the offence and the inditement to bée true or he estrangeth himselfe from the offence and pleadeth Not guiltie An offendour pleadeth one of thrée pleas or else hée doth answer indirectly and so in effect he standeth mute and maketh no answer Of the which later two I will intreate héereafter 2 And therefore beginning with the prisoners Confession of the offence vpon his arraignement That confession may be made in two sorts Confession in two sorts and to two seuerall ends whereof the one is he may confesse the offence whereof he is indited openly in the Court before the Iudge and that he hath committed that act whereof he is indited and arraigned and submit himselfe to the censure and iudgement of the Lawe Which Confession of the offence by the prisoner himselfe in person is the most assured answer and best satisfaction that can be deliuered to the Iudge to condemne the offendour and to all the hearers to giue approbation thereof So that the said Confession do procéede fréely and of his owne good will without menace Confession must be trée and without menace threats rigor or other extreamities For if the Iudge doe perceiue that the offendors confession doth growe vpon either of those extreamities he ought not to record the confession but to cause the prisoner pleade to the offence not guiltie As a woman was indited for the felonious stealing of bread to the value of two shillings 27. As p. 40 and being arraigned thereof she confessed the felonie and saide that she did it by the commaundement of her husband and the Iudges for pitie would not record her confession but caused her to pleade not guiltie to the felonie whereupon a Iurie being charged it was found that she did steale the bread by the compulsion of her husband against her will by which meanes she was discharged And in like sort if the Iudges doe perceiue that the offendour doth confesse the offence in mistaking of the Lawe they may shew him that fauour as not to record his confession but cause him to pleade to the inditement not guiltie As a man being indited of the death of another man pleaded that he and one B. hauing a quarrell 22. As p. 71 and fighting each with the other the party of whose death he was indited came betwéene them to part the fray and he against his will by misfortune gaue him a blowe whereof hée died For though by the Lawe this was felonie in him being fighting and intending to hurt or kill B. yet he did mistake the Lawe therein and did not take it to be so for that his quarrell was not towardes him which he slue but to B. who had no hurt And further this confession of the Offence is not so penall to the prisoner though he doth it fréely and without menace or other extreamitie that he is thereby presently attainted or condemned of that felonie but in many cases he may be saued from death the most bitter rigour of the Lawe by the benefit of his cleargie or by the Kings pardon He that confesseth doth become an Approuer 3 The other kinde of confession of felonie that is made by a prisoner at his arraignement openly in court before the Iudge is when the prisoner doth confesse the inditement to be true and that he hath committed the offence whereof he is indited and then doth become an approuer viz. an accuser of others who haue committed the same offence whereof he is indicted or other offences with him and then doth request the Iudge to haue a Coroner assigned vnto him to whome hée
that case he shall be arraigned at the Kings sute though he be acquit against the appellant by his release An Approuer confesseth his appeale to be false 17 If an approuer 21. H. 6. 34. when an Enquest doth appeare vpon the issue ioined betwéene him and the appellée and be ready to trie the same issue will confesse his appeale to be false yet notwithstanding the appellée shall be arraigned at the Kings suite But if the approuer when the appellée is in the field ready to deraigne battaile will confesse his appeale to be false the appellée shall goe quit and not be arraigned at the Kings suite and the approuer shall be hanged for it is as much as if the appellee had vanquished the approuer in battaile The appeale abating before declaration 18 If an appeale commenced by Writ doe abate before declaration so that the Court can not be informed of the yéere day and place where and when the felonie was committed In that Case the Court doth vse to examine the Coroner if he be present if there be any indictment depending of the same felony or not and if he say no then to send to the Shirife of the Countie where the felonie was supposed to be committed to know if hée haue any indictment or not and in the meane time to let the Defendant to mainprise or otherwise the Court will set the Defendant at libertie There was a time when if a felon had bin taken with the manoure A felon taken with the manoure and that the felon and the manoure had beene brought into the Court the Iudges would haue arraigned the offendor vpon the manoure without appeale or indictment Sed obsoletum 19 In euery arraignement which is to be at the Kings sute vpon an Appeale begunne by the appellant No arraignement at the Kings suite vpon a false declaration the declaration in the same appeale is intended to be once good and true for if it were neuer good and abated for that cause the appellee shall not be arraigned at the kings suite notwithstanding the abatement be after declaration And therefore if an appeale be abated by mis-naming of the Defendant 4. H. 6. 16 hée shall not be arraigned at the kings sute though the abatement be by the Plaintifes owne confession And yet in that case it might be said that the appeale abated by couin for that the said exception was not tried but confessed by the Plaintife And the same Lawe is if the appeale shall be abated by mis-naming of the Plaintife or of the Towne or for lacke of a materiall word And so it is if in an appeale the Defendant doe pleade Fi. Cor. 121 17. As p. 26. 11. As p. 27 18. Ed. 3. 35. Fitz. Cor. 3. 384. 387. 27. Ass p. 25 that the Plaintife is outlawed or is attainted of treason or felonie or otherwise is disabled to maintaine an appeale As if a woman doe bring an appeale of the death of her husband and the Defendant doth pleade that shee and her said husband were neuer accoupled in lawfull marriage or that shée hath married another husband Or that the appeale was not commenced within the yéere and day after the offence committed Or that the appellant hath an elder brother liuing to whome the appeale is giuen and not to the Plaintife And all those matters which shall be a Barre to the plaintife to bring the appeale shall also Barre the king to take any aduantage against the Appellée vpon the same appeale for in all these Cases it may appeare that the appeale was commenced without cause and grounded vpon false matter S. Br. 15. And yet it is otherwise where the appeale was at the first grounded vpon sufficient and true matter But in all the Cases aforesaid though the king cannot take an aduantage of the appeale against the defendant If not an Appeale yet an Indictment at the Kings suite yet he shal compell him to answer to an indictment of the same felony for that by these pleas the defendant is not discharged of the felonie though he be discharged of the appeale And further if the appellée be discharged both against the party and also against the King yet the Court may bind him to his good Abearing Good abearing Fi. Cor. 387 if they shall thinke it méete 13. Ed. 4. 8 3. Ed. 3. 10 20 If an Excommunication be pleaded against the plaintife in appeale The plaintife in appeale excommunicate notwithstanding the plea be thereby delayed yet the Defendant shall not be arraigned at the kings sute for the Plaintife may be absolued and then procéede in his appeale And therefore the appeale shal be continued vntill a certaine day to the intent that the Plaintife may in the meane time procure his absolution and during that time the Defendant shall be let to mainprise But if the appellant be outlawed The plaintife in appeale outlawed though the Outlawrie be not for felonie but for trespas 17. As p. 26 Fit Vtlawrie 47. yet by that meanes the Defendant shal be set at liberty aswel against the king as against the appellant Notwithstanding in that case there is no impossibilitie but the Plaintife might purchase his charter of pardon or reuerse the outlawrie for that it is erronious and thereby be enabled to pursue his appeale An Approuer pardoned the Appellée shall be discharged 21 If one be appealed by an approuer 47. E. 3. 5. 47. E. 3. 16. and the King doth pardon the approuer he that is appealed by the approuer shall be set at libertie without being arraigned at the Kings suite for by the pardon the felonie is extinct in him and so he ceaseth to be an approuer for the approuement shall continue no longer then the approuer is partaker of the felonie whereof the approuement is made Vanquishing one approuer 22 If thrée men doe become approuers seuerally against one man 7. Ed. 3. 11. of one and the same felony and he ioyneth battell with them all and doth vanquish that approuer which first ioyneth with him by that meanes he shal be acquit against them all and likewise against the King and the other two approuers shall be hanged But it is otherwise if the approuement be of seuerall felonies for in that case though the appellee doth ioyne battell with them all 25. Ed. 3. 42 and after vanquish that approuer which first ioyneth with him he shall be remaunded to prison vntill he hath ioyned battell with the other two for that there must be seuerall trialls where there be seuerall felonies and seuerall issues Examining an offendor condemned 23 If a man would become an approuer 21. Ed. 3. 18 and cannot be suffered by the Lawe for some disablement or for the impediments before mentioned yet before he shal be put to execution the Court will send the Shirife vnto him to heare who they be that he can accuse and
thereupon cause the Shirife to indite them at his next Turne Sanctuarie and Abiuration SAnctuarie in Gréeke called Asylum What Sanctuarie is and by some in Latin termed Templum misericordiae is a place priuiledged by the King or chiefe gouernor of a country for the safegard of the life of such a person as doth offend the king his Lawes crowne and dignitie royall Which priuiledged places were deuised and instituted by the lawe of mercie vpon deuotion and the great reuerence and honour that Princes chiefe Rulers had to such places wherein they graunted such priuiledges As first almighty God himselfe the chiefe Author of mercie gaue in charge to his seruant Moses when the children of Israel were in their peregrination towards the land of Promise that certaine Cities or places of refuge or Sanctuarie might be prouided for those to flie vnto Deut. 19. By whome Sanctuaries were instituted and to escape the hands of the reuengers of blood who should by mischance and not willingly slay others And after Iosua 20 the same people being setled in the same Land he caused Iosua to execute the same commandement by assigning six cities to that purpose And long time after that Mulmutius Dunwallo one of the renowned kings of the Brittons who made many most worthy lawes for the well gouerning of his subiects which were called Mulmutius Lawes at the least 440. yeares before the natiuitie of our Sauior Christ ordained for Sanctuaries places of priuiledge or defence of mans life certaine Temples and the foure great high waies which he before had caused to be made or begunne at his owne charges viz Fosse Watling stréete Erming stréete and Ikeneld stréete and in some cases and for some purposes euery plough which Franchises or Liberties Belinus his sonne did after more fully effect and confirme And some of the ancient Princes Kings or Gouernors in this Realme graunted places of defence or sanctuarie to such as should commit treason some others to such as should commit murder robberie burglarie or other offences whatsoeuer which in that point was further than the priuiledge which God gaue to his owne Sanctuarie Exodus 21 that was ordained onely for him which should kill another vnwillingly for God commanded that if any did slay his neighbor vpon malice prepenced or by assault he should be taken from his Altar and put to death 2 Abiuration is an othe that a man or woman doth take What Abiuration is when they haue committed felonie and do flie to a Church or churchyard for the safegarde of their liues choosing rather to be perpetually banished out of the realme than to stand to the Lawe and to be tried of the felony and this was one of saint Edwards Lawes that was King of this Realme before the Conquest and instituted by him which is also founded vpon the Lawe of Mercy that the Kings of this Realme did extend for the great reuerence that they did beare to the Temple of God and to places dedicated to him which was alwayes vsed sithence that time without alteration vntill the one and twentie yeare of King Henry the eight St. 21. H 8. 2 And this abiuration is an attainder in it selfe of felonie that is confessed which attainder by confession is the most strong that may be for the vehement presumption that it hath of trueth for it should be very absurd to say that he hath not committed such a felonie when the partie himselfe hath confessed it to the ouerthrow of himselfe and all his posteritie All Sanctuaries be extinguished 3 By the Statute of Anno 32. H. 8. it was enacted St. 32. H. 8. 12. That all Sanctuaries and places priuiledged which haue béene vsed or taken for Sanctuarie except parish churches and their churchyards cathedrall churches hospitalls and churches collegiate and all chappels dedicate vsed as parish churches and the Sanctuaries to euerie of them belonging and except such places and territories as hereafter be appointed to be places of tuition and priuiledge viz. Welles Westminster Northampton Norwich Yorke Darbie Launceston and Westchester shall be vtterly extinguished adnulled and voide for euer And by the Statute of Anno 22. H. 8. it was ordained St. 22. H. 8. 14. That if any person flie or resort to any parish church Cemitorie or other like halowed place for tuition of his life by occasion of any murder robbery or other felony by the same person committed and thereupon confesse any murder felonie Abiuration by the commō Lawe out of the Realme or other offence before the Coroner wherefore the same person by the Lawes of this Realme heretofore vsed should abiure and passe out of the same The same person thereupon shall abiure from all his libertie of this Realme and from his liberall and free habitations resorts and passages to and from the vniuersall places of this Realme which appertaine to the libertie of the Kings subiects vndefamed and shall forthwith be directed by the Coroner Abiuration to a place within this Realme taking and recording such abiuration to any one Sanctuary within this Realme which the same person will elect and choose there to remaine as a Sanctuary person abiured during his life and to be sworne before the Coroner so to doe and to be marked with a hot yron vpon the brawne of the thumbe of the right hand according to the statute of Anno 21. H. 8. 2. St. 21. H. 8. 2 And by the statute made Anno 1. Iac. 25. St. 1. Iac. 25 it was enacted That so much of all Statutes as concerneth abiured persons and Sanctuaries or ordering or gouerning of persons abiured or in Sanctuaries made before the fiue and thirtieth yéere of the late Quéene Elizabeths raigne shall stand repealed and be voide And so all Sanctuaries being adnulled and extinguished by the foresaid statute of 32. H. 8. 12. sauing churches and churchyards which were Sanctuaries by the common Law and sauing Welles Westminster Northampton c. erected and made by the said Statute of 32. H. 8. 12. 33. H. 8. 15. which are also sithence extinguished and adnulled by the foresaide statute of 1. Iac. 25. And therefore by no Lawes or Statutes that wée haue in force there be any Sanctuaries remaining neither can any person take the benefit of Sanctuary in any place or in any case where there is no such thing in rerum natura sauing churches and churchyards which neuer were Sanctuaries aboue fortie dayes at the vttermost and that but in certaine Cases and yet now out of vse But whether by the strict course of the common Lawes or any Statute in force they be now to any intent in force or not Quaere And for that so much of all stat as concerneth abiured persons or ordering or gouerning of abiured persons made before an̄ 35. El. be repealed and made void by the before rehearsed Statute of 1. Iac. 25. viz. the statute of 21. H. 8. 2. 22. H. 8. 14.
Peace of the same Countie where such offendors shall happen to be shall vpon his or their corporall Oath before the Iustices of the Peace in the open Quarter Sessions of the same Countie where such offendors shall then bée or at the Assises and Gaole Deliuerie of the same Countie before the Iustices of the same Assises and Gaole Deliuerie abiure the Realme of England and all other the Quéenes Dominions for euer vnlesse her Maiestie shall licence the parties to returne and thereupon shall depart out of the Realme at such Hauen or Port and within such time as shall in that behalfe be assigned and appointed by the said Iustices before whom such abiuration shal be made vnlesse the same offendor bée letted or staied by such lawfull and reasonable meanes or causes as by the common lawes of this Realme are permitted and allowed in cases of abiuration for felonie And in such cases of let or stay then within such reasonable and conuenient time after as the common law requireh in case of abiuration for felony as is aforesaid And the Iustices of peace before whom any such abiuration shall happen to be made as is aforesaid shall cause the same presently to be entered of Record before them and shall certifie the same to the Iustices of Assises and Gaole deliuerie of the said Countie at the next Assises or Gaole deliuerie to be holden in the same countie And if any such offendor which by the tenour and intent of this act is to be abiured as is aforesaid shall refuse to make such abiuration as is aforesaid or after such abiuration made shal not go to such hauen and within such time as is before appointed from thence depart out of this Realme according to this present act or after such his departure shall returne or come againe into any the Qu. Realmes or Dominions without her speciall licence in that behalfe first had and obtained Then in euery such case the person so offending shal be abiudged a felon and suffer as in case of felonie without benefit of Clergie If any person or persons that shal at any time offend against this act shall before he or they be so warned or required to make abiuration according to the tenour of this act repaire to some parish Church on some sonday or other festiuall day and then and there heare diuine seruice and at Seruice time before the Sermon or reading of the gospel make publike and open submission and declaration of his and their conformity to her Maiesties lawes and statutes as in this act is hereafter declared appointed That then the same offendor shall thereupon be cléerely discharged of and from all the penalties and punishments inflicted or imposed by this act for any of the offences aforesaid Prouided that no Popish Recusant or seme couert shal be compelled to abiure by vertue of this act Prouided also that euery person that shall abiure by force of this act or refuse to abiure being thereunto required as is aforesaid shal forfeit and loose to her Maiestie all his goods and cattels and all his lands tenements and hereditaments during his life only and no longer But his wife shal not loose her dower neither shall his blood bée corrupt S. Felonie by stat 9. 17 By a statute made an̄ 35. El. 2. St 35. El. 2. intituled an act for the restraining of Popish Recusants to some certaine place of abode it is ordained Popish Recusants shall abiure the Realme That Recusants not conforming themselues to the obedience of the lawes of this realme in comming to the Church to heare diuine seruice which shall not vpon the request of two Iustices of peace or Coroner of the same countie abiure the realm and depart for the same and not returne without the Queenes licence shal be adiudged felons and suffer and loose as in case of felonie without benefit of Clergie S. Fel. by St. 10. St. 3. E. 1. 10 18 By the stat of West 1. made an̄ 3. E. 1. it is enacted Abiuration of a Trespasser That he which committeth trespasse in parkes or ponds shall abiure if hee cannot find suretie no more to doe the like offence But that abiuration is not for felonie neither shal he forfeit his lands or goods Pleading not guiltie HAuing made mention of one of the pleas which a prisoner brought to the barre to be arraigned of Treason or Felonie doth plead viz. of the Confession of the offence and shewed how many sorts of Confessions of felonie the law doth take notice of by what meanes she doth procéed against the parties confessing I am now to treat of a second or one other plea that the prisoner vpon his arraignment doth plead in his own defence which is the plea of Not guiltie For when a prisoner by an appeale or an Inditement is charged with treason or felonie he may estrange himselfe from the offence if he will and ioyne the same issue which the defendant oft times doth in an action of trespasse some other personall actions viz. he may plead and take for his issue Not guiltie This plea of not guiltie is the most common and vsual plea Pleading not guilty the most common plea. that he which is arraigned of treason or felonie hath to plead vpon an inditement or an appeale and it is the plea whereunto euery person that is arraigned shall be enforced vnlesse it be in speciall cases viz. where he hath matter of Iustification or matter in Law to plead And this plea of Not guiltie doth tend to the fact that is to the felony and therefore it receiueth great fauour in Law 7. Ed. 4. 15. 4. H. 6. 15 4. H. 7. 5. 10. H. 4. 4. 9. H. 4. 2. for the Law doth allow this plea to him who is arraigned after he hath pleaded in abatement or barre of the appeale or inditement so that his barre doe not comprehend such matter as doth confesse the felonie as a Release of the appellant or the Kings pardō And that plea he shall haue also though one of his pleas were matter in law for though those pleas doe require diuers trials 29. Ed. 3. 91. 22. E. 4. 39. 27. As p. 3 14. Ed. 4. 7 yet in fauour of life hee shall haue both those pleas as well as he shall haue when he doth plead matter triable by the Bishop or by Record viz. and moreouer not guiltie Which pleas he shall haue notwithstanding he doe not conclude moreouer not guiltie that is to say Pleading not guilty after other pleas he shall come time enough to plead not guiltie after the matter triable by the Bishop or by Record is found against him And the manner of pleading in all those cases is to plead his plea and to pray allowance thereof and ouer to the felonie not guiltie Vpon the plea of not guilty no coūcel allowed 2 Vpon this plea of onely not guiltie the partie indited shall not haue coūcell
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
and Terminer Nisi prius for the defendant in appeale 4 Although by the common Lawe a Nisi prius is grantable for the king but not grantable against the king where he is partie to the suite or where the matter in question doth touch the kings right or where he is party thereunto but by aide praier vnlesse his Atturney will assent thereunto yet in an appeale of felonie when the appellant and appellee be at issue the Defendant may haue a Nisi prius to pursue the same issue 21. H. 7. 34 if there be any default in the Plaintife that he doth not pursue it with effect though the K. be in a sort party to that suite for otherwise the appellée should continually remaine in prison to his vtter vndoing and neuer haue remedy Neither the Defendant in an appeale shall not haue a Venire facias with a prouiso 14. H. 7. 7. 15 H. 7. 9 21. H. 6. 36 vntill hée hath assigned some default in the Plaintife in the pursute of it And yet the Plaintife may at his pleasure stay the Defendant in procéeding further with his processe in praying a Tales vpon the Defendants processe Remaunding of prisoners out of the K. Bench to be tried in the Countrie 5 Because diuers felons and murderers vpon vntrue surmises did oftentimes remooue as well their bodies as their Indictments by Writte and otherwise before the King in his Bench and could not by the order of the Lawe be remaunded and sent downe to the Iustices of Gaole deliuerie or of the peace nor other Iustices or Commissioners to proceede vpon them after the due course of the common lawe for that a Record which is once remoued into an higher Court can not by the common Lawe be sent backe to a more base and inferiour Court For the redresse whereof by a statute made An̄ 6. H. 8. it was ordained St. 6. H. 8. 6 That the Iustices of the K. Bench for the time being haue authoritie by their discretions to remaund and send downe as well the bodies of all felons and murderers brought and remoued or that shall be remoued or brought before the king in his Bench as their indictments into the counties whereas the same murders or felonies haue béen committed or done and to commaund all Iustices of Gaole deliuery Iustices of Peace and other Iustices and Commissioners and euery of them to procéed and determine vpon all the foresaid bodies and indictments so remoued after the course of the common law in such maner as the same Iustices of gaole deliuerie Iustices of peace and other Commissioners or any of them might or should haue done if the said prisoners or indictmēts had neuer bin brought into the said K. bench St. 4. Iac. 1. 6 By a stat made Anno 4. Iac. it was enacted Triall of felonies committed by English men in Scotland That all offences of coniurations witchcraft dealing with euill and wicked spirits murder manslaughter felonious burning of houses and corne burglary robbing of houses by day robberie theft the detestable vice of buggerie committed with mankind or beast and rape heretofore done and committed since his Maiesties comming to the crown of England or hereafter to be done or committed by any his Maiesties naturall borne subiects of this realme of England or the dominions of the same within the realme of Scotland or the dominions thereof and the accessories of and to the same shal be from henceforth inquired of heard and determined before his Maiesties Iust of Assise or his Commissioners of Oyer and Terminer or Gaole deliuery being naturall borne subiects within this realme of England and none other by good and lawfull men of the Counties of Cumberland Northumberland Westmerland or any of the said counties at the election of the said Iust of Assises or Commissioners in like maner and forme to all intents and purposes the alterations hereafter in this Act expressed only excepted as if such offences had béene done and committed within the same Shire where they shal be so inquired of heard and determined as is aforesaid At which trials for the better discouerie of the truth Witnesses allowed to him that is arraigned and for the better information of the consciences of the Iurie and Iustices there shall bée allowed vnto the party so arraigned the benefit of such witnesses only to be examined vpon othe that can be produced for his better cléering and iustification as hereafter in this Act are permitted and allowed St. 4. Iac. 1. 7 Euery Iustice of peace of the counties aforesaid The prosecutors and witnesses bound to giue euidence vnto whom complaint shal be made shall haue full power and authoritie by vertue of this Act to bind ouer by recognisance in a conuenient summe taken to his Maiesties vse as well the partie prosecuting as any witnesses which he shall desire to produce so as the said witnesses may haue their reasonable charges first tendred vnto them to prosecute and giue in euidence before such his Maiesties Iustices as aforesaid as the case shall require St. 4. Iac. 1. 8 Euery commander procurer counsellor abettor comforter receiuer The accessory tryed though the principall be not or other accessorie of or to any the offendors or offences aforesaid so committed in Scotland as aforesaid offending within the realms of England or Scotland shal be produced withall indicted tried iudged and executed without delay notwithstanding the principals or any of them be not conuicted or attainted And that no such offendor either accessorie or principall shall be allowed the benefit of his clergy No clergie No peremptorie challenge aboue v. The words of the Indictment nor admitted to his peremptory chalenge of aboue the number of fiue And that euery indictment of any of the offences aforesaid so committed as aforesaid shal be adiudged of as good force in law notwithstanding the words contra pacem coronam dignitatem nostras be omitted as if the said words had béen therein contained Euery Iuror must haue v. l. of fréehold 9 No Sherife Vndersherife or other Minister to whom it appertaineth St. 4. Iac. 1. shall returne any Iuror to enquire of or try any of the offences aforesaid so committed as aforesaid except euery such Iuror shall haue fréehold in possession to the value of v. l. by the yeare in the county where such inquirie and triall shall be vpon pain to forf for euery Iuror that shal be returned contrary to this Act the summe of xl l. to the K. and I. to be recouered by A. of debt B. P. or I. in any of the K. courts at West wherein no E.P. or W. c. And the offendor shall or may challenge any Iuror that shall passe vpon his life for want of such fréehold as aforesaid The offendor shall forf no lands 10 No naturall subiect of his Maiestie of the realme of England St. 4. Iac. 1. or of the dominions
man in his owne defence Killing a man by mischance or in his owne defence or by misaduenture by the common Law shall not haue his clergy Br. Cor. 183 Neither shall he who committeth petite Larceny Petit larcenie haue his clergy and the reason is for that in those cases he shall not haue iudgement of death 19. H. 6. 47. Fit Co. 283 St. 25. E. 3.4 7 He which had offended in high Treason Offendors in Treasons by the common law should not haue had his clergy neither he which had offended in petit Treason vntill by the stat of An̄ 25. E. 3. pro Clero it was enacted That all Clerkes as well secular as religious which shal be from henceforth conuict before the secular Iustices for any manner Treasons and Felonies touching other persons thē the King himselfe or his royall Maiesty shall fréely haue and enioy the priuiledge of holy Church and shal be without any impeachment or delay deliuered to the Ordinaries demaunding them It appeareth by the statute of Anno 4. H. 4. St. 4. H. 4. 3 That the Clergie promised to the King in Parliament that a Clerke conuict for Treason touching the King himselfe or for being a common théefe notoriously detected and deliuered to the Ordinary shall not make his purgation 8 He that had confessed a felony Confession of felony could not haue had his Clergy by the common Law vntill the stat of An̄ 9. E. 2. St. 9. E. 2. 15 viz. Articuli Cleri was made Because after his confession he could not purge him of that offence and therefore it was in vaine to haue him deliuered to the Ordinary to be tryed of that offence But the spirituall men at that time intended that the same confession of a Clerke before a Temporall Iudge was void for that he could not be Iudge of a Clerke and therefore they obtained remedie by the said articles in two speciall cases viz. Abiuration and Approuement and by the equitie of the said statute and in fauour of life it is now permitted in all other cases of attainders Clergy taken away by seueral statutes A Cutpurse 9 By the statute of An. 8. Eliz. St. 8. El. 4. it is enacted That no person or persons which shal be indicted or appelled for felonious taking of any money goods or cattels from the person of any other priuily without his knowledge in any place whatsoeuer and thereupon found guilty by verdict of xij men or shall confesse the same vpon his or their arraignment or will not answer directly to the same according to the lawes of this Realme or shall stand wilfully or of malice or obstinatly mute or challenge peremptorily aboue the number of xx or shal be vpon such indictment or appeale outlawed shall be admitted to haue the benefit of his or their clergy but be excluded therof and shall suffer death in such manner forme as they should if they were no clerks Forging of writings 10 By the stat of An. 5. El. St. 5. El. 14. it is established That if any person or persons being conuicted or condemned of any of the offences specified in that Statute prouided against the forging of euidences writings by any of the waies or meanes in the same statute limitted shall after any such his or their conuiction or condemnation eftsoones commit or perpetrate any of the said offences in the forme therin mentioned that then euery such second offence or offences shal be adiudged felony the parties thereof conuicted or attainted shall suffer death losse forfeiture of their goods cattels lands tenemēts as in cases of felony without hauing any aduantage or benefit of Clergy or Sanctuary S. Forging c. 8. and Felonies by Statute 27. 11 By the statutes of An̄ 25. H. 8. An̄ 5. El. St. 25. H. 8. 6 St. 5. El. 17. it is enacted That if any do commit Buggery Buggery with mankind or beast the same offence shal be adiudged felony and that no person offending in the same shal be admitted to his clergy S. Felonies by Stat. 11. 12 By the statute of An̄ 5. El. St. 5. El. 20 it is enacted That euery person and persons of the age of xiiij yeares or aboue calling himselfe an Egyptian Egyptians or béeing in company with them or counterfeiting or disguising himselfe by his apparell spéech or other behauior like vnto the vagabonds calling themselues Egyptians and so doth continue at one or seuerall times by the space of a moneth shal be adiudged a felon and shall loose the priuiledge and benefit of Sanctuary and Clergy S. Felonies by Stat. 15. Relieuing of a Iesuit or Priest 14 By the stat of Ann̄ 27. El. St. 27. Eli. 2. it is enacted That euery person which shall wittingly willingly receiue relieue comfort aid or maintaine any Iesuit seminary priest or other priest deacō or religious or ecclesiastical persō whatsoeuer being borne within this realme or any the dominions thereof heretofore sithence the feast of S. Iohn the Baptist an̄ 1. Reg. El. ordained made or professed or hereafter to be made ordained or professed by any authoritie or iurisdiction deriued from the Sea of Rome being at liberty or out of hold knowing him to be a Iesuite Seminarie Priest or such other Priest Deacon or religious or ecclesiasticall person as is aforesaid shal for such offence be adiudged a felon without benefit of Clergy and shal suffer death loose and forfeit as in case of one attainted of felony S. Felonies by Stat. 22. 15 By the Statute of Anno 18. Eliz. St. 18. El. 6. it is ordained That if any person or persons shall fortune to commit or doe any manner of felonious Rape Rape Rauishment or Burglary Burglary or shall vnlawfully and carnally know and abuse any woman child vnder the age of tenne yeares and shal be therof found guilty by verdict be outlawed or confesse the same vpon his arraignment he shall suffer paines of death and forfeit as in cases of felony without any allowance or priuiledge of Clergy 16 By the statute of An̄ 3. H. 7. St. 3. H. 7. 2 it is enacted Taking a woman against her will That if any person or persons shall take any maid widow or wife which hath any lands or goods or is heire apparant to her auncestor against her wil vnlawfully such taking procuring and abotting to the same and also receiuing wittingly the same woman so taken against her will knowing the same shal be felony and such misdoers takers and procurators to the same shal be reputed taken as principall Felons But this act doth not extend to any person taking a woman onely clayming her as his ward or bondwoman Ward Bondwoman And by the stat of 39. El. St. 39. El. 9. it is ordained That euery such person persons as shal be conuicted or attainted of or for any
Confederacies of the same committed vpon the land within this Realme And if any person happen to be indicted for any such offence done vpon the Seas or in any other place aboue limitted then such order proces iudgement and execution shall be vsed and made to and against euery such person so indicted as against Traytors Felons and Murderers for Treason Felony Robbery Murther or other such offences done vpon the land and such as shal be conuict of any such offeÌ„ce by verdict confession or proces shall suffer such paines of death losse of lands goods and cattels as if they had bin attainted and conuicted of any of the said offences done vpon the land No pennance for high Treason 5 The foresaid statute of West 1. maketh mention only of felons and felonies and therefore in high Treason whether it be by indictment 15. E. 4. 33 M. 3. 4. El. Dy. 205 300 or by any other meanes whatsoeuer the offendor shal not haue the said iudgement of pennance viz. of paine grieuous and durable but shall haue another iudgement that is to say as of a Traitor conuict No pennance for a man before attainted 6 If a man that is attainted of Felony be brought to the barre 8. H. 4. 2 26. As p. 19 and asked what cause he can shew why he should not be put to death and he will stand mute in this case he shal be hanged and not put to his penance for hee cannot put himselfe vpon an Enquest of felonie because he was attainted thereof before and so he is out of the case of the stat 7 If a man vpon his arraignement doth confesse the felony Standing mute after confession and before iudgement at another day he will stand mute by fraud and so it is found in this case he shal be hanged 14. E. 4. 7. and not put to his penance for his iudgement shall be giuen vpon his confession And so it is Demurring in law if he do demur in law vpon any point which is adiudged against him he shal be hanged for in both those cases he is out of the puruiew of the foresaid stat of West 1. And in like sort he shal be hanged and not put to his penance if he be indicted and arraigned for a murder or manslaughter committed within the Kings Palace or where hée doth abide according to the stat of Anno 33. H. 8. St. 33. H. 8. 12. if he do stand mute or will answer indirectly 8 In all cases where a man vpon his arraignement doth stand mute Inquirie of him that standeth mute before he shal be hanged put to his penance or otherwise suffer death it shal be inquired if he do stand mute by fraud or by the act of God for if it bee by the act of God 43. Ass p. 30 the Court ex officio ought to inquire if he be the same person and of all other pleas that he might haue pleaded if hée had not béene mute to haue staid execution M. 8. H. 4. 1. And this inquirie is but of office and shall be made by the Marshals seruants and others But if it be in case where an issue is ioyned by the consent of the parties and after when the Enquest doth come the prisoner doth stand mute there the Court shall charge the Enquest which appeareth therewith without putting any of the Marshals seruants vnto them and so change that which was a Iurie by the consent of the parties to an Enquest of office And their charge shall be to enquire of the time when he did speake and if he be mute of malice or in delay of his execution or by the act of God But this charge or inquirie ought not to be made or giuen where the prisoner did speak to the Court when he was at the bar and after the same day because he would not ioyne issue or challenge peremptorily aboue the number appointed to him by the law be adiudged to his penance for then it doth appear to the court that he doth it of malice 10. E. 4. 19 And the same law is if a prisoner after his confession or attainder hath continually remained in prison and is brought before the same Iustices before whom hée did confesse his felonie or was attainted to answer why execution should not be done of him and he will stand mute in this case there néedeth no inquirie to be made if he be the same person or not for that doth appeare to the Iustices by his continuall remaining in prison But it is otherwise if he goe at libertie after his attainder by abiuration outlawrie and such like 4. E. 4. 11. 14. Ed. 4. 7. 8. H. 4. 2. 9 The iudgement in the sayd penance The Iudgâ—ment in penance viz. in the said paine heauie and grieuous is That the prisoner shall be sent to the prison from whence hée came and put into a meane house stopped from light there shal be laid vpon the bare ground without any litter straw or other couering and without any garment about him sauing something to couer his priuie members and that he shall lie vpon his backe and his head shal be couered and his féet bare and that one of his armes shall be drawne with a cord to one side of the house and the other arme to the other side and that his legges shall be vsed in the same manner and that vpon his bodie shal be laid so much yron and stone as he can beare and more and that the first day after he shall haue thrée morcels of barlie bread without any drinke and the second day he shall drinke so much as he can thrée times of the water which is next the prison doore sauing running water The forfeiture without any bread and this shal be his diet vntil he die Fitz. Escheat 10. And he against whom this iudgement of penance shal be giuen shall forfeit to the king his goods but he shall forfeit no land Iudgement and Execution in Treasons Felonies c. HAuing written of Treasons Felonies shewed who be principals and who be accessories therein how the offendors therein are to be pursued by Appeales or inditements what pleas they may plead how they are to be tried that the truth of each persons innocency or guiltinesse may appeare I am now to treat of the iudgement execution which by the lawes statutes of this Realme must follow therupon As first Iudgement where the prisoner is acquit if he that is arraigned of treason or felonie be acquit thereof there is none other iudgement but that the Court doth discharge him paying his fées 2 The iudgement of a man attainted of high Treason is Iudgement in high treason of a man that he shall bée led backe againe to the place from whence he came and from thence be drawn vpon a hurdle to the place of execution and there be hanged by the necke
and then be cut downe aliue and his intrals and priuie members be cut from his bodie and be burned in his sight and his head to be cut off and his body to bée diuided into foure parts 6. El. Dyer 230. and then to be disposed at the Kings pleasure Sauing that the iudgement of a man which is attainted for clipping the Kings money contrarie to the Statute of an̄ 25. Ed. 3. 2. shal be onely that he shalbée drawne and hanged though it was high treason by the common law so is expounded confirmed by that Statute But if any man shal be attainted of treson for cōmitting any of the offences made high treason by either of the Stat. of an̄ 1. M. 6. 1. 2. P. M. 11. 5. El. 11. 18. El. 1. 5. El. 1. 13. El. 2. 23 El. 1. 27. El. 2. 3. Iac. 4. he shal be adiudged a traitour S. Treasons and shall haue iudgement and suffer as in cases of high treason viz. he shal be drawne hanged and quartered as is before mentioned And though there be no mention made thereof in the iudgement yet he that is attainted of treason or felonie by verdict confession outlawrie or abiuration shall also forfeit his lands and goods his wife shall loose her dower and his blood shal be corrupted sauing in certaine cases 3 The iudgement of a woman which shal be attainred of high Treason or petite treason The iudgement of a woman traitour is 1. R. 3. 4 That she shall be ledde backe againe to the place from whence shée came and from thence be drawne vpon a hurdle to the place of execution and there be burned to death 8. El. Dy. 254. But if one man doe murder an other and the wife of him that was murdered be accessorie to her husbandes death the murderer and the wife both shall be hanged and she shall not be burned because she was but accessory 4 The iudgement of a man attainted of petit treason Iudgement of a man in petit treason is That hée shall be ledde backe againe to the place from whence hee came and from thence drawne vpon an hurdle to the place of execution and there to be hanged by the necke vntill he be dead Iudgement in felonie 5 The iudgement of a man attainted of murder burglarie robberie or other felonie is That he shall be ledde backe againe to the place from whence he came and from thence carried to the place of execution and there be hanged by the necke vntill he be dead And the like iudgement is giuen against a woman being attainted of anie of the same offences 6 The iudgement in misprision Misprision of treason is That the offendor shall forfeit to the King his goodes and his lands during his life and shall be perpetually imprisoned during his life Attainder of treason by the common lawe 7 In the foresaide iudgement giuen in high treason by the order of the common Lawe there can be no errour assigned St. 33. H. 8. 20. but it is as strong as if it had béene doone by Act of Parliament For the Statute made Anno 33. H. 8. hath ordained That if any person or persons shall be attainted of high treason by the course of the common Lawes or Statutes of this Realme that in euery such case such attainder by the common Lawe shall be of as good strength value force and effect as if it had beene done by authoritie of Parliament Iudgement of pennance 8 The iudgement of him who being indited of felonie will stand mute of malice or not answer directly or will refuse lawfull triall P. 4. E. 4. 11. being called Pennaunce or paine for t dure is That the prisoner shall be sent to the place from whence he came c. S. Standing mute c. 9. Iudgements in felony by Iustices of Nisi prius 9 As touching those who shall giue iudgement against the offendors aforesaide it is ordained by the Statute of Anno 14. H. 6. St. 14. H. 6. 1 That the Iustices before whome Inquisitions Enquests and Iuries shall be taken by the Kings Writte called Nisi prius according to the forme of the Statute thereof made haue power of all the cases of felonie and of treason to giue their iudgements as well where a man is acquitte of felonie or of treason as where he is thereof attainted at the day and place where the saide Inquisitions Enquests and Iuries shall be taken and then from thenceforth to awarde Execution to be made by force of the saide Iudgements 10 Because it oft times falleth out that an offendor is found guiltie of treason or felonie before some Iustices of Gaole Deliuerie for the which Iudgement of death should or might ensue and yet that person is reposed to prison without iudgement at that time giuen against him and then before the next Gaole deliuerie the same Iustices of Gaole deliuerie doe die or be remooued and others be assigned Iustices of Gaole deliuerie in their places by the Kings Commission which as many did conceiue it could not giue iudgement of that prisoner so repried by the former Iustices by warrant of the foresaide Statute of 14. H. 6. 1. or for some other cause For the remedy whereof by a Statute made Anno 1. Edw. 6. St. 1. E. 6. 7. it is enacted Iudgement by new Iustices That in all Cases where any person shall be found guiltie of any Treason Murder Manslaughter Rape or other felonie whatsoeuer for the which iudgement of death should or may ensue and shall be repried to prison without iudgement at that time giuen against him Those persons that at any time shall by the Kings Letters patents be assigned Iustices to deliuer the Gaole where anie such person found guiltie shall remaine shall haue full power to giue Iudgement of death against such person so found guiltie and repried as the same Iustices before whome such person was found guiltie might haue done if their Commission of Gaole Deliuerie had remained in full force 11 The Iudgement in petit Larceny Iudgement in petit larcenie is that the offendor shall be ledde backe againe to the Gaole Stockes or place from whence hee came and there to remaine a wéeke a moneth or c. and then in such a Citie Borough Market towne Village where the fact was done or other place assigned by the Iustices to be tied to a carte stripped from the girdle vpward and whipped vntill his bodie doe bléede once twice or thrice c. according to the Iustices discretion 12 If a woman be indicted and arraigned of felonie Stay of a womans execution being with childe it is no plea for her to say that shée is with childe but she must pleade to the felonie Not guiltie and if she be found guiltie then shee may alleadge that shée is with childe and then the Marshall or Sherife shall be commanded to returne an
possession in law and not in déed notwithstanding the death of him which is attainted But by the stat of an 33. H. 8. the king shal haue the lands St. 33. H. 8. 20. goods cattels and all other things of the offendors attainted of high Treason without any office the words of which stat be these viz. If any person or persons shal be attainted of high Treason by the course of the common lawes or statutes of this realme in euery such case euery such attainder by the common law shal be of as good strength value force and effect as if it had bin done by authoritie of Parliament And the K. his heires and successors shall haue as much aduantage by such attainder as well of vses rights entries conditions possessions reuersions remainders and all other things as if it had bée done and declared by authoritie of Parliament and shal be déemed and adiudged in actuall and real possession of the lands tenements hereditaments vses goods chattels and all other things of the offendors so attainted which his Highnes ought lawfully to haue and which they so being attainted ought or might lawfully loose and forf as if the attainder had bin done by authoritie of Parliament without any office or inquisition to be found of the same Any law statute c. notwithstanding By force of which stat the King shall be in actuall and reall possession of those lands which do escheat vnto him by any attainder of high Treason An office of those lands which do escheat for felonie without any office or inquisition thereof found though for those lands which do escheat vnto him by any attainder of felonie there must be an office found for him before he can enter according to the antient course of the common law Forf of title of Dower 54 By the common law any man attainted of Treason or felonie should haue forfeited that title which his wife had by their espousals to be endowed of his lands to the intent that if the care of his owne life could not stay him from the committing of felony or treason yet the loue which he did beare to his wife and children should restrain him therof whom he was assured by that wicked act to vndoe and vtterly to depriue them of all likelihood wherewith to maintaine them And some do affirme that this law was at the first deuised to punish the wise and to auoid her dower for that it was intended that the wife gaue consent vnto or at the least did know of the Treason or Felonie which her husband committed and either by intreatie persuasion or some other meanes might haue withdrawne him from it But the common law in that case is altered by the stat of Anno 1. Ed. 6. St. 1. E. 6. 12 whereby it is enacted That albeit any person or persons of what estate condition or degrée he or they be shal fortune to be attainted conuicted or outlawed of any Treason petit Treason Misprision of treason Murder or Felony whatsoeuer yet that notwithstanding euerie woman that is or shall fortune to be wife of the person so attainted conuicted or outlawed shal be endowable and enabled to demaund haue and enioy her dower in like maner and forme as though her husband had not béene attainted conuicted or outlawed Any statute law custom c. notwithstanding But after some part of the foresaid stat of Anno 1. E. 6. was altered by a braunch of a stat St. 5. 6. E. 6. 11. made Anno 5. 6. Ed. 6. whereby it was prouided and enacted That the wise or wiues whose husband or husbands hereafter shal be attainted of any Treasons whatsoeuer they be shall in no wise be receiued to aske challenge demand or haue dower of any the lands tenements or hereditaments of any the person or persons to be attainted of treason as is aforesaid during the said attainder in his force And yet sithence the foresaid stat of 5. 6. Ed. 6. it was specially prouided and ordained by the stat made Anno 5. El. 1. Anno 5. El. 11. An. 18. El. 1. That the husbands attainder of treason by force of any of the foresaid stat should cause no forf of dower in the wife S. Br. 27. Br. Appeale 117. Fitz. Iudg. 225 Plo. Com. 261. 55 If in an Appeale the Appellée do wage battell What the Appellée that wageth battell shall forf and the Appellant doth slay him in the field the Appellee shall forf all his goods chattels but his land shall not escheat for inheritance is so greatly fauoured that it shall not be forf without attainder by iudgement But if the Appellant do vanquish the Appellee then his land shal be forf for when he is vanquished and not killed iudgement shal be giuen that he shal be hanged and by that meanes he shall forf his land 6. H. 8. Dyer 2. 56 If a man seised of land in fée A rent charge pro consilio not forfeited doth grant a rent charge out of the same to another for the terme of the life of the grantee pro bono cōsilio suo impendendo with clause of distres within the same land if the grantée of this rent charge be attainted of treason and committed to prison yet hee shall not forf this rent charge to the K. for it is incident to the cause for the which it was giuen viz. to the counsell to be giuen by the grantée to the grantor which was a trust that the grantor reposed in the grantée to giue him counsell which trust the grantée cannot assigne or forf to another And though the grantée of this rent charge be attainted of treason and imprisoned yet the grantor may come or send to him for his counsel and he may giue it him and so there wil be no fault in him But if a man do purchase a rent charge for the time of his life out of another mans lands in consideration of a summe of money paid by the grantée to the grantor and after the grantee is attainted of treason or felony the same rent charge shal be forf to the K. and paid to him during the life of the grauntée S. Br. 27. The forfeitures of an Outlaw 57 Out of all which foresaid forfeitures Bracton de coron̄ c 13 the words of Bracton may be verified who writeth That a man outlawed or otherwise attainted of Treason or Felony shall forfeit his coūtrey and kingdome and shall become a banished man who in English is called an Outlaw And in former times he hath béene tearmed a Friendlesse man and so he hath séemed to forfeit his friends for if any man after his Outlary doth willingly féed him receiue him kéepe company with him or hide him he shal be punished in the same sort that the Outlaw shall Also he shall forfeit all things which be peaceable séeing that from the time he is an Outlaw he carieth a Wolues head so
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
vpon the one shal be also an acquitall vpon the other By the letter of the said statute of Westm 2. this word Malice doth only referre it selfe to Abettors and Procurors but yet it is commonly taken to extend as well to the appellant as to them The Statute extendeth to all felonies 3 The said stat of West 2. saith when any is appealed of felony St. 13. E. 1. 12 this word felony is not only intended of such offences which were felonies at the time of making the said statute but also of all other offences which haue béen made felony by stat sithence the said statute And therfore in an appeale of rape which was made felony by the same stat of West 2. the plaintife was nonsute when the Enquest was to be taken and the def was arraigned at the kings suit Fi. Cor. 275 381. and found not guilty and the Iury was charged to inquire of the abettors The defendant acquited by battell 4 The words of the said statute of West 2. be When any doth acquit himselfe in due manner which may be intended as wel that the defendant shal recouer dammages where he doth acquite himselfe by battell St. 13. E. 1. 12 as where he doth acquite himselfe by the country But that acquital by battell is to be construed in this manner where the appellant when he is in the field will acknowledge his appeale to be false for that is a kind of vanquishment Fit Cor. 98. for it must not bée intended where the appellant is slain in the field séeing when the person of the appellant is dead the dammages be also gone for euer without any recouery to be had of them 5 It is to be noted that there is an acquitall in law as well 〈◊〉 an acquitall in déed for if two be appealed one as principall and the other as accessory and the principall is acquite by this acquitall the accessory shall recouer his damages against the appellant if the Enquest which tried the principall Where the accessory in appeale shall recouer damages were also charged vpon the accessory 2. 3. P. M. Dy. 120. 35. H. 6. 2. though they gaue no verdict of the accessory for in this case the accessory shall haue a writ of Conspiracy by the common Law because by a meane he put his life in ieopardy But it is otherwise if the principall be acquit and the accessory did not appeare but depended in proces for in that case he ought expressely to be acquit by verdict 41. As p. 24 or otherwise he shal not recouer dammages by force of this statute neither shal he haue a writ of Conspiracy by the common law St. 13. E. 1. 12 6 These words of the foresaid stat of West 2. be of great moment viz. whē any which is appealed of Felony doth acquite himselfe in due maner for if the def doth barre the plaintife of his appeale Where the def is said to acquite himselfe in due maner and where not he cannot recouer damages thereby against the plaintife except the barre be such as doth acquite the def of the Felony And therefore if the def doth plead that the appellant is a bastard or hath an elder brother or was neuer accoupled in lawfull mariage or such like pleas in barre and by these pleas doth barre the plaintife yet he shall not recouer damages against him for the def may be indicted againe of the same Felony and attainted 27. Ass p. 25 Fi. Cor. 77. notwithstanding by either of these pleas he is discharged of the appeale as well against the king as against the appellant for those pleas which do not trythe def innocency in the Felony do neuer giue him dammages any more then if he had pleaded in abatement of the writ of Appeale such a plea as had abated it For notwithstanding such a plea doth discharge him of the appeale as well against the K. as against the party yet it doth not discharge him of the felony Fit Cor. 12. And the like law is if in an appeale the def do barre the appellant by a demurrer in law yet he shal not recouer damages against him for the def innocency in the felony doth not by that meanes come to triall And so it is if in an appeale of the death of a man the def do plead to issue is foūd by verdict to kill the man in his owne defence 22. As p. 77. or by misaduenture in these cases he shall recouer no dammages against the appellant for this is no acquitall of the Felony because the def is inforced to purchase his pardon to purge him of the Felony and besides it doth appeare that this appeale was not commenced vpon malice Fi. Cor. 386. In like sort if the def in an appeale vpon his arraignmēt will demand his Clergy the Court wil take an Enquest of office to inquire whether he be guilty or not and the enquest doth find him not guilty yet by this acquitall he shall not recouer damages for in that he demaunded his clergy before triall he did rather in a sort confesse the Felony by implication then otherwise But if he had refused his clergy and put himselfe vpon the enquest who had acquited him then he had bin acquite in due manner according to the foresaid statute should haue recouered his damages And so it is if the def in an appeal hath the release of the appellant or the K. pardon will waiue them plead not guilty put himselfe vpon the countrey and is acquit he shall recouer damages yet he hath done a thing of record viz. by purchasing the K. pardon wherin by implication he doth confesse the Felony But if it were a pardon by act of Parliament 11. H. 4. 40 he could not weiue it If the def be acquit erroniously without due proces he shal not recouer his damages against the plaintife for that the words of the foresaid statute of West 2. be Se acquietauerit in curia Regis modo debito As 9. H. 52 where the def doth appeare by the Exigent vpon whom the Shirife hath returned Cepi corpus defendentis where he should haue returned Exegi feci and the defendant doth appeare vpon the Euidence and without taking aduantage thereof pleadeth not guilty to the appeale and it is so found for him yet some do affirme that he shall not recouer his dammages because he is acquit erroniously without due proces But others vpon greater reason do hold that the Error in the proces is not materiall Fi. Cor. 444. so long as there is no Error in the writ of appeale declaration or pleading for the def is arraigned vpon the originall Writ and not vpon the meane proces Acquite at the K. suit is only vpō an appeal 7 The foresaid statute of West 2. hath ordained St. 13. E. 1. 12 That when any which is appealed of felony
the words of the Statute be And if they bee lawfully conuict of such abetment by malice which doth proue that they shal haue their answer to that which was found by the Enquest And also it is a good answer for him that is charged to be an abettor to shew sufficient matter to proue Fi. Cor. 386 that the defendant ought not to recouer his damages against the appellant or that the defendant was not lawfully acquit but erroniously But if the abettors would take exception to the inquisition found for that the enquest did not find at what day Fi. Cor. 45 M. 22. E. 4. yeare and place the abetment was made that is no good exception for in that they haue found the abetment they haue performed the words of the statute which be That inquirie shall be made by whose abetment and that they haue found And touching the yeare day and place the defendant in the Appeale must adde to the inquisition and so supply that which wanteth Proces against the abettors 13 Because the said statute hath ordained St. 13. E. 1. 12 that after by an Enquest an abettor is found he shal be distrained by a iudiciall writ at the appellees suit to appeare before the Iustices Therfore it is to be gathered by words of the said statute that the proces against abettors is distresse infinit for this proces of distresse is alwayes pursued by him that is acquit who for his spéedie remedie may prosecute it although the apppellant be not in the Court as where the Appellant was nonsuit in the Appeale and the defendant was arraigned at the Kings suit and acquit and his damages taxed and the abettors found Fi. DamÌ„ 77. in this case the defendant shall haue proces against the abettors presently although the iudgement of damages shal be suspended vntill a Scire facias shall be awarded and returned against the appellant Nonsute in the proces against the abettors And the defendant who is acquit in an Appeale may be nonsuit in the proces which hee doth pursue against the abettors and begin againe if he will for that nonsuit is not peremptorie to him Fit Co. 386 A Writ against the abettors by the appellee 14 There is an originall writ to be purchased by the Appellée who is acquit by verdict against the abettors for their abetment Fitz. Act. sur stat 28. wherein he may count abettors of greater damages than were assessed by the Iustices in the Appeal for of those damages taxed in the Appeale there will lye no attaint because the inquirie touching them is but of office And the defendant in the Appeale cannot compell the Iustices to increase those damages and therefore it is reason that he should releeue himselfe by this action Procurors of indictments for suits in spirituall Courts 13 The same remedie which is giuen by the foresaid stat of West 2. to the def in an appeale of Felony if he be acquite is giuen by the stat made An. 1. R. 2. to him who is falsely indicted for pursuing in a spirituall Court a matter pertaining to the temporall iurisdiction after that he is acquite thereof St. 1. R. 2. 13 The words of which stat be these The Prelates Clergy of the realme do greatly complaine for that people of holy Church suing in the spirituall court for their tithes other things which ought of right and of auncient time were wont to appertaine to the same spirituall court that the Iudges of spirituall courts other persons dealing therein according to the Law be maliciously and vnduly for that cause indicted imprisoned and by the secular power horribly oppressed and also enforced by violence by oathes by grieuous obligations and by many other meanes vnduly compelled to desist and vtterly to leaue off from the things aforesaid contrary to the liberties of the holy Church Wherefore it is enacted That all such Obligations made or to be made by duresse or violence shal be of no value And touching those which do procure by malice such indictments themselues to be indictors after that the same indictées be thereof acquite such procurors and indictors shall haue and incurre the same paine which is contained in the statute of West 2. touching those which do procure false appeales to be made And the Iustices of Assise or other Iustices before whom such persons indicted shal be acquite shall haue authority to inquire of such indictors and procurors and to punish them duly euery person according to his desert ⧠A Writ of Conspiracie Where a writ of Conspiracy doth lie 1 A Writ of Conspiracy doth lie where two or thrée persons or more of malice and by coâ— in doe conspire and deuise to indict another person falsely and after he which is so indicted is acquited in this case he shall haue a writ of Conspiracy against those who did so conspire to indict him But this writ doth lye against two persons at the least 28. Ass p. 12 11. H. 4. 2. which doe so conspire for if one person of malice and his own false imagination doth labour and cause one to be falsely indicted the party which was so indicted shall not haue a writ of Conspiracy but an action vpon â—he case against him who caused him to be falsely indicted 2 At the common law a writ of Conspiracy did lie as well vpon an acquitall in an appeale as it doth at this day on an acquitall vpon an indictment But there hath growne a question thereof sithence the stat of West 2. was made St. 13. E. 1. 12 Registrum for that in the writ of Conspiracy in the Register it is noted for a rule and also it is affirmed by some others That a writ of Conspiracy doth not lye vpon an appeale for that the said stat of West 2. gaue to the def dammages against the appellant and the abettors Fit Na. Bre. 114. and so in a sort prouided for him another remedy But to say generally that the def shall not haue a writ of Conspiracy vpoÌ„ an acquital in an appeale for that he may haue damages against the appellant and the abettors is no sufficient reason for the said stat doth not giue to the def inquiry against the abettors but vpon his owne request and therefore if he will omit to desire it he shal haue the remedy ordained by the common law which law is not changed by the foresaid stat of West 2. that is in the affirmatiue doth not restraine the benefit giuen by the common law And it may be that the damages assessed by the enquest of office will not be so beneficiall vnto him as the damages which wil be giuen by a Iury that is taken at the parties suit whereunto he shall haue his challenges and an attaint if they giue a false verdict Also in a Writ of Conspiracy proces is to be awarded by Capias and Exigent which proces is not to
excommunication in the plaintife 5 Who are mainpernable who not Bailement by the Shirife With-holding of Prisoners mainpernable 6 In what cases no mainprise by the common Law The King or Iustices commandement 7 The Marshall shall baile no prisoner The Iustices ordinarie or absolute commaundement 8 Mainprise for offendors in Vert or Venison 9 In what case hee that is outlawed may be bayled 10 Mainprise during an approuers life 11 Maineprise vpon good name The principall in Burglary and Robbery mainpernable 12 No bailement for a prisoner attainted 13 Bailement of offendors by Iustices of Peace 14 Bailement of offendors by the Shirife 15 Bailement by Shirifes and others 16 Imprisonment at the Kings pleasure 17 The difference betweene bailement in Felony and in a personall Action 18 Mainprise is matter of Record Confession of the offence Fol. 184. 1 An offendor in felony pleadeth one of three pleas 2 Confession of the offence before the Iudge vpon the prisoners arraignement may bee in two sorts Confession of the offence must be free and without menace 3 He that doth confesse his offence before the Iudge doth become an approuer 4 Confession of the offence before the Coroner whereupon abiuration doth ensue Approuer Fol. 185. 1 Who is an Approuer An Approuer shal be banished 2 Of what offences approuement may be 3 Approuement in an Indictment and not in an appeale 4 Before whom one may approue 5 How an Approuer shall vse himselfe No approuing after pleading An Approuer must tell truth 6 An Approuers oath 7 An Approuers wages 8 An Approuer set at liberty An Approuers appeale must be certaine 9 Proces against the appellees after the approuement 10 Pleas for the appellee against the approuer An Approuer attainted or conuict of Felony 11 An appellee cannot appeale others 12 An Approuer not in prison for felony or at liberty 13 The appellee an honest and credible man 14 Generall pleas in barre of the appeale 15 Where the king may pursue an Appeale begun 16 The appellants release to the appellee 17 An Approuer confesseth his Appeale to be false 18 An Appeale abating before declaration A Felon taken with the mannoure 19 No arraignment at the kings suit vpon a false declaration Where if not an appeale yet an Indictment may bee at the kings suit 20 The plaintife in the appeale excommunicat or outlawed 21 An Approuer pardoned the appellee shal be discharged 22 Vanquishing of one of the approuers 23 Examining of an offendor condemned Sanctuary and Abiuration Fol. 189. 1 What Sanctuarie is 2 What Abiuration is 3 All Sanctuaries be extinguished Abiuration by the common Law Abiuration to a place within the Realme 4 No abiuration for Treason 5 No abiuration for the robberie of a Church 6 No abiuration for a man attainted 7 No abiuration for a man before abiured 8 Where an offendor may bee drawne out of the Church by violence The offendors confession before the Coroner 9 Tarrying in a Church aboue the time limitted 10 The manner of Abiuration The oath of Abiuration 11 The attire of an abiured person 12 The vsing of persons abiured 13 The abiuration broken death ensueth A Clarke need not to abiure 14 Where no Felony no abiuration for Felony 15 The abiured pleadeth that he is not the same person The Kings pardon of Abiuration 16 Abiuration by a Recusant 17 Abiuration by a Popish Recusant 18 Abiuration by him that committeth Trespas Pleading not guilty Fol. 192. 1 The plea of not guilty the most common for a prisoner One may plead not guilty after other pleas 2 Where vpon the plea of not guilty counsel shal be allowed and where not Triall by Battaile Fol. 193. 1 Triall of not guilty by Battaile or by the Countrey 2 The forme of triall by Battaile 3 The reason why the defendant in an appeale may be tried by battaile 4 Counterpleas to the Battaile 5 Taken with the manoure 6 Breaking of prison 7 Le ts of triall by battell on the plaintifes part 8 Priuiledges of the appellants person The King A Citizen of London 9 No wager of battell in an appeale of Rape 10 One fighting with seuerall men 11 An Appeale by an approuer 12 The appellee wageth battell and then becommeth blind Triall by Peeres Fol. 196. 1 The triall of the plea of not guilty by Peeres 2 The forme of arraignement and triall of a Peere of this realme 3 By whom Peeres appealed shal be tried By whom Ladies shall be tryed 4 The triall of Bishops Arraignement and Tryall in Parliament 5 Triall of Treason committed in Ireland 6 Triall of Misprision of Treason The number of Peeres at the triall 7 Triall of Peeres by Peeres in all cases of Treason and Felonie Triall by the Countrey Fol. 198. 1 Triall of the plea of not guilty by the countrey 2 Triall by the country of forraine pleas A man stricken vpon the Sea dieth vpon the land 3 The Proces against the Iurie The Proces in an Appeale and not in an Indictment 4 Where a Nisi prius is grauntable in an Appeale 5 Remaunding of prisoners out of the Kings Bench into the Countrey 6 Triall of Felonies committed by English men in Scotland 7 The prosecutors and witnesses bound to giue euidence 8 The accessary tried though the principall be not 9 Euery Iuror must haue fiue pounds of freehold 10 The offendor shall forfeit no lands 11 A like Act made in Scotland 12 Scottishmen repairing into England to giue euidence shal be free from arresting 13 The offence shall be layed where it is done 14 Hee that is once tried shall not be eftsoones called into question 15 None shall bee sent out of England to receiue his tryall 16 The Iurors shall allow of or reiect the witnesses Challenge Fol. 201. 1 Where the prisoner is allowed to challenge peremptorily Seuerance in challenges 2 Which be challenges vpon cause for that hee was an indictor 3 Challenge for want of Medietatem linguae 4 Challenge for want of sufficient freehold 5 Challenge for the king 6 A man outlawed of Felony shall haue his challenge 7 A Iuror challenged for that he is an Alien a Villaine or Outlaw Euidence Fol. 204. 1 Some bound to giue euidence against an offendor let to baile 2 Some bound to giue euidēce against an offendor imprisoned 3 Restitution of goods vpon an attainder by euidence 4 Euidence giuen by a stranger 5 There must be two accusors to giue euidence in Treason 6 Euidence or accusors in high Treason 7 Euidence against abettors to offences 8 Euidence on the defendants part in Felony Verdict Fol. 206. 1 A Verdict at large may bee giuen in Felony 2 The Verdict sometime lesse penall then the Indictment 3 The Verdict sometime more penall then the Indictment 4 Where the Iury shal find who killed the dead man Clergy Fol. 207. 1 What Clergy is 2 Who shal not haue his clergy by the common Law 3 A committer of Sacriledge 4 The habite or tonsure of a Clerke 5 Clergie
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
did loose his seruice it is a good plea for the defendant to say that he was not the plaintifs seruant or that he was the defendants seruant and not the plaintifs or that he was farmor tenant neighbor or soiourner with the plaintife and not his seruant or that the partie beaten was the plaintifs wife And in the said action of trespas of assault and batterie for the beating of his seruant 22. H. 6. 43. he néed not declare of the retainer of the same seruant for if he did but serue his master at his pleasure yet the master shall haue an action of trespas for the losse of his seruice 14 As the law doth allow a man to beat another in defence of his person Battery in defence of his goods from extreame peril so doth she tollerate one man to beat another for the preseruation of his goods from rapine and spoile for as it standeth not with the peace of the realme that one man without some lawful cause should beat another so it standeth not with the iustice of the realme that one man should take anothers goods iniuriously from him And he that will attempt by force and violence to take away another mans goods wrongfully from him 9. E. 4. 28. 19. H. 6. 31. 65. Kel p. 92. may iustly by force strong hand be resisted And if in that case he that shall make an assault to take those goods be in the encounter beaten by the owner of the same goods the law will excuse the owner therin protect him to defend those goods wherof he hath a lawfull propertie And the same law is if a man hath no propertie in goods but onely a possession by the bailement of another to bee redeliuered when they shall be required if in this case a stranger will assay by force to take the same away Lib. Intr. 553. he that hath the possession of the same goods though it be but a bloodhound may defend the same by force And if the said stranger shal be hurt or beaten in that assault he shall haue no remedy by action of trespas or otherwise against him that had the said possession for he may iustifie the defence of the goods so bailed vnto him in respect that he hath the lawful possession of thē and standeth chargeable to redeliuer them or the very value of them to him the bailed them vnto him whensoeuer he shall be required Battery in defence of his land lease or way And so it is if one hath a mill whereunto a riuer or spring of water doth run 3. H. 4. 9. and hath run time out of the remembrance of man and another would stop the course of that water turne it another way the owner of the mill doth disturbe him therein wherupon that other doth assault and attempt to beat him In this case if the owner of the mill for his owne safegard and for the defence of his auncient water course doth beat him againe it is iustifiable for this beating was not an intended breach of the peace but to defend him from violence offered to his person Lib. Intr. 554. 11. H. 6. 33. 10. E. 4. 6. and iniurie to his fréehold or terme And the same law is in euery case of batterie of another who doth menace or assault the right owner and attempt to beat him for the lawfull defence of his owne fréehold or terme or from his lawfull high way 9. E. 4. 3. 15 If one man do make assault vpon another attempting to beat him Battery inresisting a Iustice of peace so to breake the peace if a Iu. of peace do command him that maketh the assault to kéep the peace to surcease his assault he wil not do it or wil answer that he will not the Iust of peace may lay his hands vpon the offendor arrest him to find sureties of his good behauiour and if the offendor doe make rescue and resist the arrest by force and then be beaten hee shall haue no remedie against the same Iustice of peace who hath done nothing but that which belonged to his office and dutie and the offendor first in breaking the peace and after in resisting the Iustice of the Law being beaten by the Iustice of Peace or any other in his company hath worthily tasted the due reward of his owne disobedience And also the Iustice of peace may in this case commit the offendor to prison vntill he hath found sureties to kéep the peace A Iustice of peace may arrest one to find suretie of peace 21. H. 7. 22. 9. E. 4. 3. and though he doth let the same partie after to goe at libertie without finding suretie of peace yet he shall haue no action or other remedy to punish the same Iustice because he is Iustice of Record A schoolemaster beateth his scholler 16 In an action of trespasse of assault and batterie 21. E. 4. 6. Li. Intr. 555 it is a good plea for the defendant to plead that he is a schoolemaster and a teacher instructer of children and that the plaintife put himselfe to be scholler with him to be taught instructed in his booke and because the plaintife was carelesse and negligent in learning of that whereof he was instructed or did beat abuse other schollers his schoole-fellows the defandant did beat him with a rod as it was lawfull for him to doe A master beateth his prentice 17 And likewise in an action of trespasse of assault and batterie it is a good plea for the defendant to plead that he is a free man of the citie of London 21. E. 4. 6. 53. occupying the trade of a draper that the plaintife beeing aboue the age of xiiij yeares put himselfe apprentise vnto him to serue him in that trade by the space of vij yeares And because the plaintife was negligent in learning his trade he did strip him and beat him with a rod as it was lawful for him to do and if he did not sufficiently beat him for his offence at one time hee may beat him againe And in like sort if a villaine wil not be iustified by his Lord nor obedient vnto him it is lawfull for the Lord to chastise and beat him or to imprison him or to inflict any reasonable punishmēt vpon him so that he do not maihem or kill him for in the foresaid cases the schoolemaster master and Lord haue a ciuill power and authoritie ouer the scholler seruant and villaine Some doe hold that if an apprentice or seruant be aboue the age of xxj years and then do his seruice negligently that his master ought not to beat him therefore but to haue an action of couenant against him But note the forme of the Indenture of an apprentice touching chastising him And it appeareth by the Statute of 33. H. 8. 12. that the master may strike his seruant with his hand fist Stat. 33.
H. 8. 12. small staffe or sticke for correction and though he do draw blood S. Br. 28. Beating of a man that is franticke 18 If a man be franticke furious or mad 22. Assise p. 56. 22. E. 4. 45. and attempteth being at liberty to burne an house or to doe some other mischiefe or to hurt himselfe or others it is lawfull for his parents kinsmen and other friends to take him put him into an house to bind him and to beat him with rods to doe any other forcible act to reclaime him or to kéep him in a house or place alone where he shal do no hurt And he shall haue not action of trespasse of assault and batterie action of false imprisonment nor other remedie against them for in this case and the others before rehearsed the peace of the realme was not broken but a lawfull punishment was inflicted vpon those who had deserued it to the end they should be reformed and hereafter doe their duties the better Beating of one that will not yéeld to arrest 19 If one man do enter a plaint against another in a court hauing iurisdiction to hold plea of that suit 2. E. 4. 6. 21. H. 7. 39. and the Sergeant of the court doth arrest the defendant and the defendant will draw his sword to defend himselfe and after doth run away with intent to escape from the Sergeant if in this case the Sergeant and he that did enter the plaint do pursue him beate hurt him if he will not be apprehended and yéeld to the arrest they may iustifie the same in an action of Trespas of assault and batterie for they haue not broken the peace nor offended the Law in séeking to iustifie him who doth attempt to flie from the justice and indifferent triall of the law But if the partie had not béen arrested the Sergeant nor any other with him could haue iustified the beating of him 38. H. 6. 25. 20 In an action of Trespas of assault and batterie the defendant pleaded Beating of a seruant departing out of his seruice that the plaintife was his seruant retained departed out of his seruice and that he laid hold vpon him and led him home to his house to doe his seruice But this was adiudged no plea for it is not lawfull for the Master in this case to beate or forciblie to compell his seruant against his will to returne and do his seruice but to require him to do it and if he will not then the Master may haue an action of Couenant against his seruant and recouer so much in dammages as he hath receiued hinderance by the losse of his seruice But by the statute made AnÌ„ 5. Sta. 5. El. 4. Eliz. it is ordeined That if any seruant retained to serue in husbandry shall depart from his master mistresse or dames seruice before the end of his terme vnlesse it be for some reasonable and sufficient cause to be allowed by a Iustice of peace of the Countie or the Maior or other head officer of the Citie borough or towne corporat wherein the said Master mistresse or dame inhabiteth Or if any seruant at the end of his terme depart from his master mistresse or dames seruice without one quarters warning giuen before the end of his terme and before two lawfull witnesses Then vpon complaint made by the said Master c. to two Iustices of peace of the Countie or to the Maior or head officer of the citie borough c. they or any of them shall haue power to heare and examine the matter and finding the said seruant or the partie so refusing faultie in the premisses vpon such proofes and good matter as to their discretions shall be thought sufficient to coâ—mit him toward there to remaine without baile or mainprise vntill he shall be bound to the partie to whom the offence shall be made to continue with him for the wages limitted by this statute and then to be discharged vpon his deliuerie without paying any fée to the Gaoler where he shall be so imprisoned And as the Master cannot by beating nor by force compell his seruant 38. H. 6. 25. 21. Ass p. 85 to serue him against his will No more can a Lord compell his ward A Gardian may not beat his ward by beating or by force to come vnto him or to tarie with him against his will But if he doe depart from him then his Lord is to haue his action against him 22. Ass pla 59. 27. Ass p. 4. Fitz Trespas 238. 21 H. 6. 39. 21 If A. commaund procure or hyre B. to smite Commaundement of batterie or beate C. and he doth assault and beate C. in the presence of A. In this case C. may haue an action of Trespas of assault and batterie against A. and recouer dammages against him or against A. and B. together for here the peace was broken and wrong done to C. by the meanes and perswasion of A. And B. had not striken with his weapon if A. had not first striken with his tongue And the same law is if A. go to fight with C. and desireth B. to go with him and after doth méete with C. and doth assault and beate him In this case C. may haue an action of Trespas against A. and B. together or against B. alone though B. did not assault C. nor giue him any blowe and recouer dammages against him because he came in company with one that intended to breake the peace and to doe an vnlawfull act Hurting at some exercise 22 If two or more doe agrée together to runne at tilt iuste barriers Fitz. barre 244. or to play at backsword bucklers footebal or such like one of them doth beat bruise or wound an other the party grieued shal not haue an action of Trespas of assault batterie against the other for that it was a combate by consent put in practise to try their strength valour or agilitie not to break the peace But if the same day or some other after that the pastime is at an end they departed a sunder one will assault or beate an other in respect of some wrong conceiued to be receiued in the time of the said play then an action of Trespas of assault battery may be pursued by him that is so beaten against the trespassor Whipping of a Vagabond 23 In an action of Trespas of assault battery it is a good plea for the defendant to plead that the plaintif was by the stat made An. 39. St. 39. El. 4. El. intituled an Act for punishment of Rogues Vagabonds sturdy beggers declared to be a Rogue Vagabond or sturdy begger that he was taken begging vagrant misordering himselfe at L. in the County of N. that vpon his apprehension by the appointment of A. B. one of the Iustices of peace of the said County of N. or of the Constable Headborough or
Tithingman of the same parish of L. he was by this defendant stripped naked from the middle vpward and openly whipped vntill his body was bloudy And the same law is if any Iustice of peace Maior Bailife or other head officer shall commit any offendor which shall cut or vnlawfully take away any corne or graine growing or robbe any orchards or gardens or breake or cut any hedge pales railes or fence or digge pul vp or take vp any fruit trées or trées in any orchard garden or elsewhere to the intent to take cary the same away Or shall cut or spoile any woods or vnderwoods poles or trées standing not being felony by the lawes of this Realme Or shall be a procuror or receiuor knowing the same contrary to the statute therefore made An. 43. El. intituled Sta. 43. El. 7. an act to auoid and preuent diuers misdemeanors in lewd and idle persons shal be committed by a I. of Peace or by a head officer of a city borough c. to some Constable or other inferiour officer of the city borough Towne or Hamlet where the offence shall be committed or the partie apprehended to be whipped If in this case the said Constable or other inferior officer shall whip the same offendor vntill his body shal be bloudie the same offendor shall neither haue an action of Trespas of assault battery nor other remedy against the said Constable or officer for in the foresaid cases Punishments by the order of law in all other cases where an offendor is punished for petit Larceny by whipping for other offences by the pillorie the stocks the tumbrell or otherwise for any offeÌ„ce committed by him contrary to any of the lawes or statutes of the Realme there is no peace broken nor blame to be imputed to him or them which do execute that punishment for it is the iustice of the law which doth inflict those punishments vpon offendors for transgressing the law the executioners of those punishments be but the instruments of the law as the axe is in the Carpenters hand Battery for disobeying of a writ or warrant 24 In an action of Trespas of assault battery 21. H. 7. 39. Fitz. Trespas 108. it is a good plea for the def to plead that he had a warrant to arrest the plaintife and that by force of that warrant he did arrest him then the plaintife made assault vpon him therefore the hurt which he receiued was by his own assault for euery subiect is bouÌ„d to obey the K. writs all mandates precepts warrants awarded by his Iustices shirifes and officers sufficiently authorized And he that doth resist them or denyeth to obey them encountreth the iustice of the law and therefore the beating of him who refuseth to submit himselfe to the obedience of the Law is no breach of the peace but a meane to performe the law 25 Though the Law hath a regard to preserue peace betwéen all persons and in all places and caryeth a vigilant eye that one person shall not menace assault beate maihem or imprison an other but in certaine cases and for some speciall causes and imposeth an heauie burden vpon such as shall breake that peace by any of the meanes aforesaid Yet she hath a more speciall respect to some ceraine places to some tymes and to some persons and caryeth that reuerend and due care and consideration of them that she inflicteth a more sharpe and bitter punishment vpon such as shall violate the peace in them or to the offence of them And therefore for the auoiding of the disturbance of the peace in the Church where God is to be honoured and all peace to be preserued and to continue peace to preists clerks and others whilest they are dooing diuine seruice There was a statute made Anno 50. E. 3. and after rehersed and continued Anno 1. Sta. 50. E. 3. 1. 1. R. 2. 15. R. 2. whereby it was enacted That if any of the Kings officers or other person doe arrest any priest clerke or other Arresting one in a Church dooing diuine seruice which is doing any diuine seruice in the Church Churchyard or other place dedicated to God he shall be imprisoned and punished at the Kings pleasure and further shall recompence the partie arrested But no people of the Church shall kéepe them within the Church or Sanctuarie by fraud or â—ellusion 26 And because it is most necessarie in euery Christian common weale to prouide that peace and tranquility may be preserued and continued among the people and specially in holy Church in the time of diuine seruice and preaching and that all things being contrary thereunto or that are or may be in disturbance thereof may by forsight be eschewed and auoyded and remedy therefore prouided Sta. 1. M. 3. By a like statute made Anno 1. Reg. M. it was ordeined That if any person of his owne authoritie Disturbance of a preacher in his sermon shall willingly and of purpose by open words or déeds maliciously or contemtuously disturbe or by any other vnlawfull wayes disquiet or misuse any Preacher allowed to preach by the Quéene or by any Archbishop or Bishop of this realme or by any other lawfull Ordinary or by any of the Vniuersities of Oxford and Cambridge or otherwise lawfully authorized or charged by reason of his cure benefice or spirituall promotion or charge in his open sermon preaching or collation that he shall preach or pronounce in any Church Chappell or Churchyard or in any other place vsed or appointed then euery such offendor his aydors procurors or abbettors immediatly after any of the said misdemeanors committed or at any time after shal be arrested by any Constable or Churchwarden of the said parish towne or place where the said offence shal be so committed or by any other officer or by any other person then being present at the time of the said offence and carried to any Iustice of peace within the said shire or within any City borough Libertie or towne corporat wherein Iust of P. be where the said offence shal be so committed And the said Iustices vpon due accusations thereupon made by the apprehendor or other person of the offendor forthwith shal commit him to safe kéeping within 6. days immediatly after the said accusation so made the said Iust with one other Iust of P. within the shire city borough liberty or town corporat shal diligently examin the offence aforesaid And if the said two Iustices shall vpon their examination find the person so accused guiltie of any of the said offences whereof he shall be accused and that by two sufficient witnesses or by his confession then they shall commit him to the Gaole of the said Shire City Borough c. where the offence was committed there to remaine without baile or mainprise by the space of thrée moneths then next ensuing and further to the next quarter sessions c.
other vnlawfull act prohibited by that statute and being required by a Iustice of peace or shirife of the said County or by the Maior or chiefe officer of the city or towne corporat to returne to their inhabitations do not but attempt to put in vre any of the said things Then euery of the same persons shall be imprisoned one yeare without baile or mainprise for the offendors in both the cases aforesaid putting in practise their outrages with a multitude of persons bee great disturbers of the peace and Transgressours of the law 21. H. 6. 5. 39 In an action of False imprisonment Imprisoning him that holdeth land with force the defendant pleaded that the plaintif held the manor of D. by force and B.C. a Iustice of peace of the same County did take him recorded the force and sent him to the defendant being Gaoler of the same County to be imprisoned and this was allowed a good iustification though he was committed to prison but by one Iustice of peace And in like sort if the action of false imprisonment had bin brought against the Iustice of peace who committed the offendor to warde the same had béen a good plea in barre for him St. 8. H. 6. 9. for that the statute of AnÌ„ 8. H. 6. doth warrant him so to do giueth that authority to one Iustice alone or to more then one 29. Ed. 3. 9. 5. H. 7. 4. 40 If a Huy and Cry be leuied and pursued that a horse of such a colour or marke so many beasts of such a sort or age Imprisoning of one pursued by Huy crie or so many shéepe of such a brand be stolen one is taken leading or driuing of the said horses beastes or shéepe it is lawfull for any man to apprehend and stay him and to commit him to the Constables of the Towne where he is apprehended and by them to be put into the stockes or safe kept vntill he be deliuered by due course of law though he be not of euill fame or name but a man of good credite for séeing the law by the Huy and Cry hath accused him by a course of law he must be againe acquited and discharged And in this case he that is so taken though he be after acquit of the felony shall not haue an action of Trespas false imprisonment or other remedy against him that did apprehend him Fitz. barre 202. 3. H. 4. 9. 41 In an action of Trespas of assault battery and imprisonment Imprisoning him that doth breake the peace the defendant pleaded that the plaintife menaced to kill him and therefore he requested the Constables to arrest the plaintife to find suerties of his good abearing and the Constables and the defendant with them did come and arrest him and put him into the stockes vntill he did finde suerties and this was allowed to be a good iustification 5. H. 7. 6. And in like sort if one do make an assault vpon a Constable the same Constable may arrest and imprison him vntill he hath found suerties to kéepe the peace though the Constable be the same person vpon whom the said assault was made for in this case he doth nothing but preserue the peace and obserue the Law which is to be done aswell in his own case 13. H. 7. 10. as any others And moreouer if a Constable be informed that a lewd man is in a suspected house with a woman of euill name for incontinencie he may take so many of his neyghbors with him as he will Arresting suspected persons and arrest the said man and woman to find suerties of their good behauiour And they nor eyther of them shall haue any action of False imprisonment or other action therefore against the said Constable or any other of his assistants for the Constable was ordeyned to kéepe the peace 10. Ed. 4. 17. and to represse felons And he may take suertie by Obligation if he find any commiting of a fray but vpon no penaltie And if the partie will not find suerties the Constable may impryson him vntill he hath found suerties 9. Ed. 4. 26. 42 In an action of Trespas of assault battery and imprisonment Imprisoning him that doth attempt to rob the defendant pleaded that the plaintife lay in waite in a high way leading from the towne of A. to the towne of B. to rob such persons as trauailed in that way and assaulted to rob one L. and drew his sword and commaunded the same L. to deliuer his purse whereupon L. fled and leuied Huy and Cry and this defendant being trauailing that way pursued the plaintife and tooke him and committed him to the Constable to be put in the stockes who did it accordingly and this was adiudged a good iustification for euery man may arrest and imprison him that doth commit a felony or him who maketh it apparant that he doth intend and goe about to commit a felony for that he doth manifest him selfe to be a principall breaker of the law and peace of the realme Assisting to arrest by warrant 43 In an action of false imprisonment against two 19. H. 6. 43. 56. one of them pleaded that he had a precept to arrest the plaintife which he did accordingly And the other defendant pleaded that he came in company with the other to ayde and assist him to arrest the plaintife And this was allowed a good Iustification in them both for any straunger may assist a Sherife his Baylifes or any other that hath authority to execute the Kings writs or proces and he that wil not assist him being required shall paie a fine to the King And the Sherife may take as many persons as he will to aide him to execute the Kings writs 3. H. 7. 1. 17. E. 4. 5. for it is in furtheraunce of Iustice and no breach of the peace Breaking a house to arrest 44 If a man be indicted of Trespas 27. Ass pla 35. 18. E. 4. 4. and a Capias pro fine awarded to the Sherife to take the body of the same person The Sherife may breake open his house or close to arrest and imprison him it is a lawfull imprisonment But the Sherife may not breake any house or chest to make execution by vertue of a fieri facias to him directed S. Force 32. The Sherife arreâ—eth and doth not retorne his writ 45 If the Sherife haue a Capias to arrest a man and he doth arrest him and after doth not retorne his writ the partie arrested may haue an action of false imprisonment against the Sherife and recouer damages for his wrongfull arrest or Imprisonment for the Capias is ita quod habeas corpus cius c. and so if he haue not the parties body in the Kings Court at the day of the retorne of the writ it shall be intended that he did not arrest him by force of that writ nor according to the
fine ImprisonmeÌ„t for offences done to the iustice of the Realme 57 As in the cases aforesaid imprisonment of offendors is both tollerable requisit when it is inflicted for misdemeanors done to the peace of the Realme so in many other cases it is as necessary when it is imposed for offences done to the law justice of the Realme being the foundation principall piller of the same peace and without the due execution whereof there can not be a general and perfect peace And amongst many other transgressors who doe offend contrarie to the justice of the Realme and yet in a sort doe preserue the peace the law doth principally note foure kinde of persons worthy for their offences to be imprisoned Whereof the first be they who doe commit some acts that be wrongfull iniurious and prohibited by the common lawes or Statutes of the Realme The second be they who doe attempt and prosecute vniust and wrongfull actions or suits to molest trouble or charge others The third be they who being impleaded vpon iust and good causes doe plead false or dilatorie pleas in retardation of justice and hinderaunce of the due and ordinarie course of the law The fourth be they who vpon stubbornesse contumacie or wilfulnesse refuse to doe that whâ—â—â— they know the law doth require at their hands and may enforce them vnto of euery of which amongst many I will insert some fewe cases ImprisonmeÌ„t for coÌ„mitting vnlawful acts As to the first by the Statute of Anno 5. Sta. 5. El. 14. Eliz. he shall be imprisoned and set vpon the pillorie who doth falslie forge or willingly assent or cause to be forged or made any false déede charter or writing sealed Forging of deéds Court Roll or the will of any person in writing S. Forgery â— to the intent that the estate of fréehold or inheritance of any person in any lands should be recouered or charged c. for forging of déeds is an iniurious and wrongfull act and alwaies hath bin hated detested and persecuted in this Realme Sta. 13. E. 1. 11. By the Statute of Westm 2. If the master do assigne auditors to any Bailifes Seruants Chamberlaines or other receiuors which are bound to yéeld accompt Accomptants found in arrerrages and it chaunce them to be found in arrerages all things being to them allowed they shall be arrested and by the testimonie of those auditors committed to the next Gaole which the King hath in those parts and shall be receiued by the Sherife or his Gaoler and prisoned fettered in irons liuing of their owne goods vntill they haue fully satisfied their master of all the arrerages for detayning of the arrerages of an accompt is a plaine and manifest wrong to the master 27. H. 6. 8. And this imprisonment must be presently after the accompt taken Disseison contrarie to his owne lease and not any distance of tyme after And he that doth a disseisin or maketh an entrie contrarie to his owne déede 14. Ass pla 12. Or is conuicted for the imbeziling of an Exigent or for some other notorious deceits committeth open and manifest iniurie and therefore shall be imprisoned 8. Ass â— 20. 28. Ass pla 28. If one man do make a lease of a Tenement by writing to an other for terme of life of the lessée whereupon the lessée doth enter and enioyeth it and after the lessor doth enter and disseise the lessée for life and then the lessée do bring an Assise against the lessor and recouer against him the Tenement leased in this case the same lessor shall be imprisoned for that he made an entrie contrarie to his owne deede and so willingly committed an open and manifest wrong 18. Ass p. 3. The same law is if a man do make a disseisin of land of his whole title wherein he hath before made a release or confirmation to the tenant of the same land in this case he shall be imprysoned And if a Gardian do take a feoffement of his wardes land being within age Fitz. Assise 395. he shall be imprisoned therefore for this and all the former be iniurious acts and knowen to the offendors to be prohibited by the law As touching the second point they be also worthy to be imprisoned who do attempt or prosecute vnlawfull suits to the trouble vexation of others As if one do bring an Appeal against an other 50. Ed. 3. 1. Imp. for prosecuting vnlawfull suits and that appeal do abate by the plaintifes nonsuit or by any other default of his he shall be imprisoned A woman brought an Appeal of the death of her husband against one 9. H. 4. 2. who was attainted and hanged at her suit and after shee brought an appeal against an other man of her said husbands death who pleaded the attainder of the first man in barre whereupon the appeal was abated and the woman committed to pryson for her wrongfull vexation and suit A woman brought an appeal against a man of the death of her husband 8. H. 4. 18. and her said husband was brought into the court and shée was examined if that were her husband who said yea but shée supposed that he had béen dead and therefore shée was imprisoned for her false appeal If one do bring an appeal against an other for a Murder Burglarie Robberie or other felony committed in W. in the County of N. and there is no such W. in that County the appeal shall abate and the plaintife shall be imprisoned for it is manifest that this suit was commenced vpon malice and to put the defendant to vexation and trouble and not vpon any iust cause Thirdly they are worthy to be imprysoned who do plead false Imp. for false or dilatory pleas or dilatorie pleas in hinderance of suits and retardation of justice As if a man in his plea do denie his owne deed 33. H. 6. 54. 45. Ed. 3. 11 6. Ass p. 4. 24. E. 3. 74. Sta. 34. Ed. 1 or do plead a false déed made to himselfe which is found against him by verdict or do plead a déed that is rased enterlined or otherwise suspicious that is adiudged against him he shall be imprisoned By the statute intituled De coniunctim feoffatis if the tenant in Assise do plead iointenancie of the land in demaund with his wife ImprisonmeÌ„t for false pleading of iointenancie or a stranger and sheweth a déed to testifie the same to the intent to abate the plaintifes writ and if it be found by the Assise that the exception was maliciously alleaged to delay the plaintifes right the said tenant shall be one yeare imprysoned though the assise passe for him against the plaintife And if that tenant in the assise be an Enfant who doth plead iointenancie yet if that plea be found against him 37. Ass pl. 1. he shall be imprysoned for that the said statute is generall 3. H. 6. 51. St. 13.
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
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
and euery the heire and heires of all and euery the offendor and offendors in any the cases aforesaid and all and euery person and persons 1. M. 12. bodies politicke and corporat their heires successors and executors and euery of them other than such person and persons onely as shall be attainted conuicted and outlawed of any the foresaid offences of felonie shall haue hold enioy all such right title entrie interest leases possessions rents conditions profits and aduaÌ„tages as they or any of them shall or of right ought to haue in or to any mannors lands rents reuersions seruices or hereditaments whatsoeuer or in or to any part thereof in as large manner to all intents as if such attainder had neuer beene had any thing in this act c. notwithstanding c. Sauing to euery person and persons bodies politicke and corporate and their successors their liberties and franchises in such maner as if this act had neuer beene made Procuring others to offend 46 If any person or persons doe moue stirre 1. M. 12. or procure any person or persons to commit any of the offences in this Act specified then euery such person and persons which shall procure stirre or mooue any person or persons so to offend shall suffer such punishment by imprisonmeÌ„t without baile or mainprise as is before expressed in this Act against counsellors of such offendors Vnlawful assemblies by xl or aboue 47 If any persons to the number of fourtie or more 1. M. 12. shall assemble together in forcible manner vnlawfully and of their owne authoritie to the intent to execute doe or put in vre any of the things aboue specified or to doe any other felonious or rebellious act or acts and so shall continue together by the space of three houres after proclamation shall bee made at or nigh the place where they shall be so assembled or in some market towne thereunto next adioyning and after notice to them giuen thereof Then euery person so willingly assembled in forcible manner and so continuing together by the space of three houres after such proclamation made and notice thereof giuen shall bée adiudged a felon A lieutenant shall not appoint a deputie 48 No lieutenant that shall bee made by authoritie or colour of this Act 1. M. 12. or for to execute this Act shall constitute vnder him or in his place any deputy nor shall call or appoint to appeare before him by the onely authoritie of lieutenancie or of commission of lieutenancy any person for any cause or matter whatsoeuer saue onely for the causes and matters expressed in this Acte and for none other Aiding of the offendors after the offence 49 No person or persons shall bee put to any losse forfeiture paine 1. M. 12. or punishment of life land or goods as accessorie to any person or persons that shall commit any of the offences contained in this act for receiuing comforting or aiding of any such offendor after such act committed or done 1. M. 12. 50 No attainder or conuiction of any person or persons The attainder of those offences no corruption of blood for any offence or offences herein contained shall be any corruption of blood betwixt the offendor and any of his auncestors or such person or persons as should haue beene heire to such offendor if no such attainder or conuiction had béene had sauing to euery person and persons bodies politicke and corporat c. their liberties and franâ—â—â—ses in such manner as if this Act had neuer beene made ⧠Of Force forcible Entries and forcible retayning of possessions Vnlawfull force an enemy to peace 1 FOrce and violence executed without warrant of Law be so méere contrarie to the peace and justice of the Realme as disobedience is to loyaltie and contempt to gouernment for whosoeuer doth make a Forcible entrie into lands in the possession of an other doth secretly reuolue in his mind and distrust to himselfe that there is no Law in the Realme to redresse his wrong or no ministers to execute the same and therefore he will sit in iudgement of that cause himselfe and take into his owne hands the distribution of justice and assume into his possession by the strength of his arme what the phantasie of his head shall resolue to be his due whereas the Law in conuenient time would truely satisfie him whether the land in question by the rules of justice be his or not and also assigne him a milde and calme course to recouer all his whole dutie with valuable damages for the time he is iniured And because this force and forcible entrie into lands is so opposite and méere repugnant to the peace and justice of the Realme and tendeth so much to the dishonour of the King and his Crowne and the discredit of the Law that any person by byrth and oath deuoted to the obedience of the King and his Lawes should presume of his owne authoritie by force and strong hand to resist them both and as it were in contempt of them violently to intrude himselfe into an other mans possession before the law hath decided his title therein Therefore the wisedome of the Realme hath by the space of many generations first prouided to restraine those forces and forcible Entries and next to inflict condigne punishment vpon them which were offendors therein Whereupon by a Statute made AnÌ„ 5. There shal be no forcible entry into lands R. 2. the King defended St. 5. R. 2. 7. that none from thenceforth should make any Entrie into any lands and tenements but in case where entrie is giuen by the Law and then not with strong hand nor with multitude of people but only in a peaceble course maner And if any from henceforth do the contrary and thereof be duely conuict he shall be punished by imprysonment of his bodie and thereof ransomed at the Kings pleasure 2 But for that the said Statute of 5. R. 2. did giue no spéedie remedie to those which were expelled out of their lands or tenements nor assigned any speciall persons to suppresse the said disorder Therefore by an other Statute made AnÌ„ 15. St. 15. R. 2. 2 R. 2. it was further ordained The penaltie of forcible entrie into lands or benefices That when any such forcible entrie shall be made into lands or tenements or into any Benefices or offices of the Church and the complaint thereof come to the Iustices of the peace or any of them that the same Iustices or Iustice take sufficient power of the County and go to the place where such forcible entrie is made if he or they find any that holdeth such place forcible after such entrie made they shall be taken and put into the Gaole there to abide conuict by the record of the same Iustices or Iustice vntill they haue made fine and ransom to the King And all they of the Countie aswell the Shirife as other
or defeated of his land lease annuitie debt accompt action suit or demaund is no lesse perillous and preiudiciall to the party thereby wronged if it be not discouered preuented or auoided then the wresting and euicting from him of the same land lease annuitie debt or demaund And the offendors therein do as iniuriously and with as small colour of iustice wrest from the party grieued his said land lease annuitie debt c. as the robber doth take a purse from the traueller by the way or the burglarer his intended prey from the houskéeper in the night And if those reall dueties or things in action were conuerted into things personall the vndue conueying of them in this vnlawfull manner would deserue to be accounted and punished amongst other felonies as in some sort it is ordained so to be by the statute of anno 5. Eliz. St. 5. El. 14. And because diuers persons did forge false déeds and miniments and did cause them to bée openly pronounced published and read to trouble change or vndoe the lands of other persons and to vndoe and troble the possessions and titles of the kings peope therefore by a statute made anno 1. H. 5. it was ordained St. 1. H. 5. 3. that the partie grieued thereby shall haue his suit in that case and recouer his dammages and the partie conuict shall make fine and ransome at the kings pleasure But forasmuch as the wicked and daungerous practise of making forging and publishing of false and vntrue déeds and writings was much more practised and put in vre in all the parts of this Realme than in times past it had béene to the disherison of diuers persons and the great subuersion of iustice which hath growne chiefely by that the paines and punishments limited for such great offences by the lawes and statutes of this Realme before time were so small and easie that such euill people were not afraid to enterprise the practising and doing of such offences The repeale of former statutes of Forgerie Therefore by a statute made anno 5. St. 5. El. 14. El. it was enacted That all other statutes before that time made and prouided for forger of false déeds charters miniments or writings and all and euerie penaltie appointed for the same should from the first day of Iune then next following be void Forging of a déed whereby anothers fréehold shal be troubled 3 To the intent that condigne or some sharper punishment might bée ordained for such as should bée offenders in that crime of forgerie than in time past had béene by the sayd statute of anno 5. Elizab. it was established St. 5. El. 14 That if any person or persons after the first day of Iune then next following vpon his or their owne head and imagination or by false conspiracie and fraud with others shall wittingly subtilly and falsly forge or make or subtilly cause or wittingly assent to bée forged or made any false déed charter or writing sealed court roll or the will of any person or persons in writing to the intent that the estate of Fréehold or inheritance of any person or persons of in or to any lands tenements or hereditaments fréehold or copihold or the the right title or interest of any person or persons of in or to the same or any of them shall or may bée molested troubled defeated recouered or charged Or shall pronounce Publishing of a forged déed publish or shew forth in euidence any such false and forged déed charter writing court roll or will as true knowing the same to bée false and forged as is aforesaid to the intent aboue remembred and shall bée thereof conuicted either vpon any action or actions of Forger of false deeds to bee founded vpon this statute at the suit of the partie grieued or otherwise according to the order and course of the lawes of this Raalme or vpon Bill or Information to be exhibited into the Court of Starre chamber according to the order and vse of the Court he shall pay vnto the partie grieued his double costs and dammages to bée found or assessed in the Court where such conuiction shall bée and also shall be set vpon the Pillorie in some open market towne or other open place and there to haue both his eares cut off and also his nostrels to be flit and cut and seared so as they may remaine for a perpetuall note or marke of his falshood and shall forfeit to the Queene her heires and successors the whole issues and profits of his lands and tenements during his life and shall suffer and haue perpetuall imprisonment during his life The same dammages and costs to bée recouered at the suit of the partie grieued as is aforesaid to be first paid and bee leuied of the goods and cattels of the offendors and of the issues and profits of the said landes tenements and hereditaments of such partie conuicted or of one or both of them the sayd title of the Queene her heires and successors to the same notwithstanding Stat. 5. El. 14 4 If any person or persons after the said first day of Iune next Forging a déed whereby a lease or annuitie may bée claimed vpon his or their owne imagination or by false conspiracie or fraud had with any other shall wittingly subtilly and falsly forge or make or wittingly subtilly or falsly cause or assent to bee made and forged any false Charter Deed or Writing to the intent that any person or persons shall or may haue or clayme any estate or interest for terme of yeares of in or to any Mannours Lands Tenements or Hereditaments not beeing Copihold or any Annuitie in Fee simple Fee tayle for terme of life liues or yeares Or shall as is aforesayd forge make or cause or assent to bee made or forged any Obligation or Bill obligatorie or any Acquitance Release or other discharge of any Debt Account Action Suit Demaund or other thing personall Or shall pronounce publish or giue in euidence such false or forged Charter-Déed Writing Obligation or Bill obligatorie or any Acquitance Release or discharge as true knowing the same to bee false and forged and shall bee thereof conuict by any of the wayes or meanes aforesayde Then hee shall pay to the partie grieued his double costs and dammages to bee found and assessed in such Court where the sayde conuiction shall bée had and also shall bee set vpon the Pillorie in some open Market Towne or other open place and there haue one of his eares cut off and also shall suffer imprisonment by the space of one whole yere without baile or mainprise Stat. 5. El. 14 5 The partie and parties grieued by reason of any the offences aforesaid Seuerall remedies for the partie grieued shall and may at his and their pleasure haue and sue his action of forger of false déedes vpon this Statute against any of the offendors in the same by originall writ out of the Chauncerie and
false déede or writing as aforesaid after the said first day of Iune Stat. 5. El. 14 11 This Act or any thing therein contained Persons not chargeable by this statute shall not extend to charge any Ordinarie or any their Commissaries Officials Registers or any other their Officers or Ministers with any the offences aforesaid for putting their seale of office to any will to be exhibited vnto them not knowing the same to be false or forged or for writing of the said will or probate of the same Neither shall this Act or any thing therein contained extend or be hurtfull to any Proctor Aduocate or Register of any Ecclesiasticall Court within this realm for the writing setting forth or pleading of any Proxie made according to the Ecclesiasticall lawes or customes heretofore allowed and vsed by the Ecclesiasticall Courts of this Realme for the apparance of any person or persons beeing cited to appeare in any of the said Courts Ecclesiasticall Officiall Nor to any Archdeacon or Officall for putting their authentique seale to the said proxies or proxie Nor yet to any Iudge Ecclesiasticall for admitting of the same but they and euerie of them may hereafter doe in all poynts concerning the same as they and euerie of them might lawfully haue done before the making of this Act. Neither shall this Act extend to any Attourney Attourney Lawyer or Counsellor Counsellor that shall for his client plead shew forth or giue in euidence any false and forged déed charter will court roll or other writing for true being not partie nor priuie to the forging of the same for the pleading shewing forth or giuing in euidence of the same Neither shall this Act extend to any person or persons Exemplification that shall plead or shew forth any deed or writing exemplified vnder the great Seale of England or vnder the great seale of any other authentique Court of this Realme A Iudge A Iustice Nor shall extend to any Iudge or Iustice or other person that shall cause any seale of any Court to bee set to any such déed charter or writing inrolled not knowing the same to bee false and forged Any thing in this Act to the contrarie notwithstanding Forging of a customarie booke 12 If one or more tenants of a Mannor 15. Eliz. Dy. 322. wherein there bee seuerall Copiholders doe make a customarie booke or roll of the same Mannor in parchment or paper and doe insert therein diuers customes whereof some be false and doe set his or their owne seales thereunto and the seales of some other Copiholders of the same Mannour and the same customarie booke or roll is intituled and pretended to be collected renewed set forth and allowed by the Lord and all the Freeholders and Copiholders of the said Mannour where in truth it is set forth and made without the priuitie or consent of the Lord of the same Mannour or of the residue of the Copiholders thereof This is a forgerie and false making of a writing sealed to the intent to benefit themselues and to disinherit the Lord of the Mannor and therefore punishable by the open and shamefull punishment contained in the foresayd Statute of 5. Elizab. The proces to leuie costs and damages of a forger 13 Whereas the sayd Statute of 5. Elizabeth hath ordayned 15. Eliz. Dyer 323. That if any person shall bée conuicted of forging of a false deed vpon a bill or information to bee exhibited into the Court of the Starre chamber according to the order and vse of the Court hee shall pay vnto the partie grieued his double costs and dammages to bee assessed in the same Court Therefore when any man is attainted of Forgerie in the Starre chamber for the recouerie of the double costs and dammages taxed by the Court a writ in English shall bee made and directed to the Sherife of the Countie where the offendor doth dwell reciting the Statute and the conuiction commaunding the Sherife to leuie the said costs and dammages of the goods cattels and profits of the lands and tenements of the offendor and to bring the money into the Starre chamber Which writ shall bee sealed with the great Seale and vnder the Teste of the King And there by the order of the Court the money shall be deliuered to the partie grieued The kings pardon of forgerie 14 If a man be attainted of Forgerie in the Starre Chamber 15. Eliz. Dyer 323. Co. li. 5. 50. or in an action of Forger of false déeds founded vpon the said statute of 5. Eliz. the king may pardon his corporall punishment of setting vpon the pillorie flitting his nostrels and perpetuall imprisonment viz. so much of the penaltie of the sayd statute as is to be inflicted for a terrour or example to his people for that hée onely hath interest therein as hée hath in the issues and profits of the said offendors lands And as he may pardon the second offence of him who béeing once conuicted of forgerie doth eftsoones commit the same againe and thereby doth become a felon And as the plaintifes release discharge or discontinuance by the words of the said statute shall discharge the defendants iudgement or execution touching such costs and dammages as the plaintife should haue had against the defendant So may the kings pardon discharge the same defendant of any penaltie or forfeiture that the same statute doth giue vnto him which be the corporall punishments and the issues and profits of the defendants lands 23. El. Dy. 302. 15 Whereas the said Statute of 5. Elizab. hath ordained Forging of Testament That if any shall forge the will of any person in writing to the intent c. That then hée shall be punished as is aforesaid Yet if one do forge the Testament of another person whereby any lease for yeares shall bée conueyed hée is within the danger and penaltie of the said statute though no mention bee made in the statute of a Testament and he shall be charged onely in respect that hée hath forged a writing sealed But of a will concerning fréehold or inheritance there is speciall mention made in the same statute 12. Eliz. Dyer 288. 16 If a Clerke doe write the will of another man which is deadly sicke and after the Testator is become speechlesse Inserting more in a will than is directed and past memorie doth insert some article or clause in the same will which the Testator did not direct him to doe yet this is no forgerie punishable by the sayd statute of 5. El. nor within the meaning of the makers of the same For the principall déed or writing which was the wil of the Testator was not forged neither was any false déed charter writing or will though the article or clause inserted therein hauing no sufficient warrant was false and therefore not the Testators wil nor part thereof nor to be proued therewith 17 And though the said statute of 5.
Eliz. doth repeale as well the before mentioned statute of 1. H. 5. and all other statutes before that time made and prouided for forging of false deeds Lib. in t fol. 359. and hath ordained a new action of forger of false deeds to be founded vpon that Statute and other new remedies yet seeing both those statutes were made and prouided to one end viz. to auoid and punish the enormities of forgerie of false deeds to the disherison or hurt of others though vpon seuerall penalties Notwithstanding in some cases the like reason and so the same law is to be retained in the said statute of 5. Elizab. which was before in the first mentioned statute of 1. H. 5. As in action of Forger of false deeds 9. H. 6. 26. 20. H. 6. 11. 19. H. 6. 29. 21. H. 7. 15. 37. H. 6. 37. brought vpon the said statute of 1. H. 5. Pleas in bar of forgerie it is a good plea in barre for the defendant to plead not guiltie or that he did not forge that deed or to plead that he gaue to the plaintife a gallon of wine in satisfaction of the said offence which he did accept And so it is a good plea in barre in an action of forger of false deeds brought vpon the statute of 5. Elizab. and the same plea being confessed by the plaintife or found by verdict shall not onely barre the plaintife of the recouerie of his double costs and dammages but shall also discharge the defendant of all corporall punishments to be inflicted and of the forfeiture of the issues and profits of his land to the king For this is not a release or discharge after verdict but a discharge before verdict whereby the whole Action and sute is discharged and so not within the compasse of the said statute of 5. Eliz. 14. touching the plaintifes release or discharge after verdict Where one shall haue an Action of forgery though he hath but a right to the land 18 There be some cases where a man shall haue an Action of forger of false déeds though he hath neither possession reuersion or remainder but onely a title to the land As if a man die seised of certaine land and a stranger doth abate and enter vpon the same land before the entrie of the heire and holdeth out the heire and after the same abator doth forge some charter deed or other writing sealed of the same land to the intent to disturbe trouble or defeate the estate of the heire in the same in this case the heire may haue an Action of forger of false deeds against the same stranger though he hath then no possession reuersion or remainder in the same land And so it is 4. H. 6. 25. 22. H. 6. 15. 15. Ed. 4. 24. if one man doe disseise another man of land and after doth forge false deedes c. of the same land to the intent aforesaid the dissesee may maintaine an Action of forger of false deeds against the disseisor vpon the Statute of 5. Elizab. as he might haue done before vpon the Statute of 1. H. 5. for that his right and title to the same land is molested troubled defeated recouered or charged by the same forged deed And the same law is if a man doe bring a reall Action against an other of certaine land 9. Ed. 4. 37. and before iudgement one claiming a lease for the terme of yeares of the same land praieth to be receiued to saue his terme according to the Statute of Gloucester and doth shew his said lease which lease is forged Stat. 6. Ed. 1 11. In this case the Demandant in the saide Action may haue a writ of forger of false deedes against him that claimeth the said terme though he hath as yet nothing in possession reuersion or remainder in the same land but onelie a right for this lease is forged to â—he intent to defeate him of his right viz. of his present possession 19 If a man hath neither possession reuersion remainder or title of in or to land Where no Title no Action of forgerie and yet will bring against another an Action of forger of false deedes of the same land it is a good plea in barre for the defendant to pleade 21. H. 6. 51. 8. H. 6. 34. that hée himselfe is seised of the same land without that the plaintife hath any thing therein for if the plaintife hath nothing in the freehold or inheritance of the land nor any estate for yeares copihold or annuity in the same then he cannot be the party grieued in that Action neither his right title or interest of in or to the same can be molested troubled or defeated recouered or charged And the same law is if a man hath in land no mediate or immediate estate expectant vpon any lease or leases for life liues or yeares nor profit right of entry but onely a possibilitie 33. H. 6. 22. As if A. doe giue land to B. and the heires of his body lawfully begotten the remainder thereof to C. and his heires for euer If E. doe forge a deede containing that A. gaue same land to the said B. and the heires of his body lawfully begotten the remainder thereof to him the said E. and his heires for euer In this case C. cannot pursue an Action of forger of false deedes against E. during the liues of B. or of any of the heires of his body lawfully begotten for the said forgery séeing that during the said time his right title or interest into that land is not molested troubled defeated recouered No Action in respect of a possibilitie or charged for that he hath therein during that time but onely a possibilitie which possibilitie it may be shall neuer come into Esse And further C. cannot for the said forgery recouer double costs and dammages according to the said Statute of 5. Eli. for that he is not as yet a partie grieued nor damnified nor hath sustained any dammages neither peraduenture euer shall if B. and his heires doe continue from one generation to another and not die without issue of their bodies c. And of a bare possibilitie no value can be made neither single or double dammages assessed 18. H. 6. 5. 9. H. 6. 26. Kel fol. 114 20 If there be two Ioyntenants or tenants in common of land and a stranger doth forge a déede concerning the same land Forging of a déed touching ioyntenants land if one of those Ioyntenants or tenants in common doe bring an Action of forger of false déedes against the offender and the Defendant doe pleade that another hath an estate in Ioyntenancie or in common with the plaintife who is in full life this writ shall abate for séeing this Action is but in the nature of an Action of Trespas wherein the plaintifes are onely to recouer dammages Ioyntenants and tenants in common must ioyne in the same Action for though their right in
thing and things in all points as other Iustices of Assise in their circuits or Iustices of peace in the Counties by vertue of this Act be limited and appointed to do and execute for the punishment and correction of like offendors as beforesaid is limited Sauing to the partie grieued by such deceit such remedie by way of action The remedie of the partie grieued or otherwise of for the same money goods cattels iewels or other things so obtained as he might haue had if this Act had neuer bin made Any thing in this Act c. notwithstanding 26 Forgerie of writings hath béene alwayes so hatefull in this realme that our law-makers haue pursued the practisers therof with sharpe and bitter punishment though in some cases the same was not put in vse to molest or euict any man of his land lease annuitie debt account action suit or other demaund nor to get into his hands any others goods cattels or iewels but only to escape the ordinance and censure of the law As by a statute made anno 5. Eliz. it is established St. 5. El. 7. That no person retained in husbandry or in certain inferior arts or faculties in the said statute mentioned shal depart out of one citie towne or parish into another nor out of the Lathe Rape Wapentake or Hundred nor out of the County or Shire where he last serued to serue in another Citie Towne Forging of a testimoniall c. vnlesse he haue a Testimoniall of the said Citie or town corporat from whence he departed or of the Constable or other officer c. And if any such person shall be taken with any counterfeit or forged testimoniall then he shal be whipped as a vagabond ⧠Periurie Subornation of witnesses Truth tried by the othes of men 1 THe Law of the Realme desirous to trie out truth in all causes called in question before her to the end she might procéed in iudgement and execute iustice accordingly hath in all ages prooued it to bee the best meanes to search out this truth by the othes of honest lawful and indifferent persons intending that the man who doth professe God to bee his Creator Redéemer and Sanctifier and hopeth to be saued by his blood when hee doth come in the presence of that God and his people and doth aduisely sweare that he will declare the trueth according to his knowledge in that matter in question as God shall help him which is to say as he will expect the blessing of God in this life and eternall saluation in the life to come is void of all partialitie and priuat affection in all respects to be credited and will tell the whole truth and nothing but the truth And therefore an othe is aptly termed Sacramentum a holy band or sacred tie or godly vow The credit of an othe some do call it firmamētum veritatis the foundation ground of truth and some other vinculum pacis a meane of the knot or lincke of peace And if it be taken and found by a whole Iurie consisting vpon twelue persons or aboue it is called veredictum viz. a presentment of truth And others doe hold it a ceremonie instituted by God wherein himselfe is a partie and therefore he will see it verified or sharply punished Wée know that the proofe of most of our acts déeds and writings doe depend vpon the othes of others and whatsoeuer men do for their owne particular account most certaine is altogether in most cases vncertaine vnlesse it may be iustified by the othes of others As if one doe commit murder rape burglarie robberie or other offence whatsoeuer and it be denied and cannot be prooued by the othe of some other the offendor shall escape vnpunished for it And likewise if a man do buy land of another if the feoffor doe make him a déed of feoffement thereof do seale and deliuer it and giue him possession and after will denie it vnlesse it can be prooued by the othe of some other the feoffée shall loose his land and money And so it is of leases annuities releases acquitances obligations bargaines contracts couenants promises offences entries disseisins and other matters in fait if they be denied trauersed and called in question the proof and validitie of them doth depend wholly vpon the othes and testimonie of others And there is no case so plaine which commeth in question betweene partie and partie but one of the parties to the sute may pleade such a plea as shall come to be tried by the othes of others 2 Therefore as the Lawe doth reuerently respect the othes of men What sorts of persons are to be deposed taketh her intelligence of matters in fait from them doth cleaue leane vnto them and giueth such credite and approbation vnto them that shée doth found and build her iudgements in most cases of greatest importance vpon them So shée retaineth a vigilant and carefull eye that those othes be taken by men of sinceritie of life and maturitie of iudgement persons not stained with Periurie or other gréeuous or foule offences men indifferently affected and such as will in swearing respect the trueth of their knowledge and not the face of the person for if shée espie any of those defects in him she doth either wholly reiect his othe or else shée giueth little or no credite vnto it and further inflicteth condigne punishment vpon him according to his desert Mag. Char. 9. H. 3. 29. 3 And because the King himselfe at his Coronation is sworne that iustice shall be solde deferred or denied to no man nor that any man shall be condemned but by lawfull triall and euery of his Iudges be sworne that hée shall doe equall Lawe and execution of iustice to all the Kings Subiects Sta. 18. Ed. 3 rich and poore without hauing regard to any person All the parties to the execution of iustice sworne Therefore the law hath deuised that those Iudges before whome any cause is called in question and is brought to an issue shall be informed of the trueth of that issue by the othes and verdict of twelue Iurors who are impannelled returned and sworne to trie that issue to the end the same Iudges may ground their iudgement thereupon and so doe equall iustice to the parties according to their oathes and also that the saide Iurors shall be ascertained of the veritie of the fact by the Othes of witnesses or other euidences that they may giue their verdict thereupon according to their Othes And séeing those Iurors being the greatest number of persons that be vsually sworne for the furtherance and execution of iustice be returned by the Shiriffe of the Countie where the cause dependeth in question his vndershirife or the Bailife of some Libertie or for some default in them by the Coroners Therefore the Lawe hath further ordained that the saide Shiriffe Vndershiriffe or c. shall be indifferent persons of themselues and also deale vprightly
of those parties a straunger and they come to issue the other partie who made the same combination is returned vpon the Enquest to trie the matter in issue betwéene his companion and that stranger Periurie suspected by combination the law doth suspect him of fauor and periurie so will reiect him if he be challenged therefore for she doth feare that his old friendship former league with the party to that issue hath suncke déeply into his brest and will further preuaile with him then the truth of a straungers case to be presently examined and tried will doe be it neuer so apparant Fitz. Chal. 106. 10 If two men be at controuersie and in sute of law Periury suspected if one of the parties a Iuror be at sute in law and depending that sute there is an other controuersie and sute in law commenced betwéene one of those parties a stranger 8. H. 5. 11. and they discend to an issue and the other party to the first sute is returned one of that Enquest In this case the law doth suspect him of malice and will remoue him out of that enquest if he be challenged therefore by his former aduersarie for she doth feare that the grudge which he hath conceiued in his hart against his aduersarie vpon the first sute will moue him to reuenge which is one of the grounds and causes of periurie 8. H. 4. 3. 27. Ass p. 13 11 If two persons or more doe conspire and agrée betwéen themselues to indite an other of felonie and accordingly they doe procure him to be indited of the same felony of which felony vpon his arraignement he is acquit if the partie indited doe bring a writ of conspiracie against the said conspirators and they doe come to an issue to be tried by a Iury Periury suspected for that the Iuror passed against him before if any of those who were the Inditors of the same person be returned vpon the enquest to trie the conspiracie the law will suspect him of partialitie and not admit him to be sworn to try the conspiracie for feare of periurie for she conceiueth that he will doe his indeuor to iustifie and maintaine that which before he had found vpon the inditement though it be false for the sauing of his owne credit And the like law is if a man be one of those who doe indite an other of felonie and after when the partie indited hath pleaded not guilty and doth submit himselfe to be tried by the Country 7. E. 4. 4. 12. Ass p. 36 the same Inditor is returned vpon the enquest to trie innocencie or guilt of the man vpon the challenge of him by the partie indited he shall be remoued for the law will suspect him of periury and that he will rather respect his owne credit and iustifie his former oth and the inditement to be true then regard his euidence the life of the man arraigned and the truth of the case in triall And it is specially prouided by the Statute of An̄ 25. Ed. 3. St. 25. E. 3. 3 That no Inditor shall be put in Enquests vpon the deliueraunce of the Inditées if hée be challenged for the same cause by him which is indited Periurie suspected in respect of Subiection or gouernment 12 And the Lawe doth suspect one that is returned of a Iurie of partialitie and fauour who is within the distresse of either of the parties to that sute Fitz. Challenge 19. 27. 46. 61. 4. H. 6. 25. 44. Ed. 3. 5. or that is within the Iurisdiction of the Court Hundred or Court Leete of the plaintife or defendant or of any other in whose right to whose vse or by whose commaundement either of them do claime for if he hath any land in his owne right or his wiues or that any other is seised to the vse of him or his wife of any land whereof he taketh the profit 38. Ed. 3. 25 which is holden mediately or immediately of either of the parties to that sute the Lawe dooth suspect him of Periurie and being challenged therefore hee shall be drawen and not sworne of that Enquest 22. Ed. 4. 1. And so it is if any of the persons returned to be of a Iurie be seruant to either of the parties to that Issue the Lawe doth suspect him of Periurie for that hée is at the commaundement and vnder the correction of his Master and therefore being challenged hée shall be drawen out of that Iurie And the like Lawe is if either of the parties to the sute 2. H. 4. 13. be seruant to any of the Iury and that Iuror be challenged therefore hée shall not be sworne for feare of Periurie which hée may commit for his seruants benefit Periurie suspected in respect of kinred aliance or profite 13 The Lawe doth also perceiue 8. H. 6. 15. 7. H. 6. 40. that Nature and priuate profite be oft times speciall motions to Partialitie Fauour and Periurie As if any person be returned of a Iury who is néere of kinred or affinitie to either of the parties to that sute or to his wife viz. within the degrées of Marriage and specially if the same Iuror may by any presumption or likeliehoode after take benefit of the thing in question Or if either of the parties to that Issue may be heire to the Iuror or the Iuror or his heire be heire to the said partie then the Lawe vpon Challenge doth reiect that Iuror for feare of Periurie But if the kinred or aliance betwéene the partie to that sute 40. Ass p. 20. and the Iuror be farre off and many degrées asunder Or that one be a kinsman on the fathers side and the other of the mothers side or one be a kinsman to the other of the halfe blood or a Bastard or otherwise Fitz. Challenge 102. in such sort that the land of the one can not by the course of inheritance and the rules of the Lawe discend to the other Or if the alliance be such that the sonne of the one hath married the daughter of the other and not betwéene themselues 3. Ed. 4. 12. then the Lawe doth not feare Periurie in the same Iuror but hee may be sworne to trie that Issue And if there be a sute commenced betwéene a Corporation and a priuate person and that doth come to be tried by a Iurie if any of the same Iurie be neare of kinred or alliance to any person of that Corporation 34. Aff. p. 6. 7. Ed. 4. 4. or to any principall Officer of that Corporation the Lawe doth suspect him of Periurie therefore and if hée be challenged for that cause hée shall be drawen out of that Enquest 2. H. 4. 15. 10. H. 6. 24. The Lawe doth account it a kinde of affinitie One godfather to the others child if one of the parties to the sute haue baptized and béene godfather to a childe of one
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
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
maintaine the suit and so may A. for either of them hath interest in this debt and one of them may aid assist and maintaine the other to recouer his debt against C. in respect of their seuerall interests in the same debt But if in this case A. had promised to B. but part of this debt to haue prosecuted and maintained this suit then it had beene Champertie and vnlawfull maintenance in B. And the same law is 34. H. 6. 30. if one man be bound by Obligation to pay another man xx l. to the vse of a third man the Obligée and hee to whose vse the Obligation was made may both meddle in the suit of this Obligation 27 And so it is in goods for he that hath any propertie title Maintenance in respect of his title to goods or lawfull possession in goods 39. H. 6. 20. may maintaine a suit that is prosecuted against another touching the same goods As B. brought an action of Debt against A. in London and the Sherife returned that A. had nothing c. Wherupon at the plaintifes surmise certain goods of A. were attached in the hands of I. according to the custome of the said Citie and a Scire facias was awarded against the same I. to answer for those goods in which A. did maintaine the same I. in nominating vnto him a learned man in the law to whom by his aduice he went for his counsell and this was awarded maintenance iustifiable for that the propertie of the goods fo attached in the hands of I. were and did continue in the said A. Maintenance in detaing of a writing deliuered in trust So it is if one man doe deliuer a déed or other writing to another to be kept if a straunger will bring an action of Detinue against him to whom the same was deliuered the partie who deliuered that writing may lawfully maintaine him in that suit for the interest hee hath in the same writing And yet the recouerie of that writing would not haue bound him that did deliuer it but hée might haue had his action for the same against him that did recouer it Maintenance in respect of his ioynt interest with others 28 As euerie person may lawfully maintaine any suit that shall be prosecuted which concerneth his priuat and particular land lease rent debt or goods so may he maintaine a suit touching any land or other thing which hée hath ioyntly or in common with others 18. E. 4. 2. As the Parson of a Church brought an action of Trespasse against one of his Parishioners for digging of his ground and spoyling of his grasse Whereunto the defendant pleaded That the place where the Trespasse was supposed to be done is a Churchyard consecrate by the Bishop and that he and all those who are inhabitants in the same Parish haue vsed to haue their Sacraments and buriall for their dead there And that one of the inhabitants of the same Parish dyed and hee with others brought his bodie to the Church and after made a graue for him in the same Churchyard and there buried him which is the same digging whereof the plaintife hath conceiued his action Whereupon they were at issue In this case it was agreed by all the Iustices that euerie inhabitant of the same Parish may lawfully giue euidence and otherwise maintaine this issue though they be not parties thereunto for euerie of them hath the like interest in the Churchyard Maintenance by all the inhabitants of a parish as the partie to that suit And the same reason and law seemeth to be if there be a suit commenced betweene one or more inhabitants of a village Hamlet or Parish and some other person or persons for a common or way or for the digging of a pit of stone marle grauell morter sand c. vsed or claimed to belong or of right to bee due to the inhabitants of the same Village Hamlet or Parish after issue ioyned touching the right or title of the same common way or pit the residue of the inhabitants of the said Village Hamlet or Parish may aide and assist their neighbour or neighbours partie to that issue and it is lawfull maintenance for it tendeth to the benefit or preiudice of all the said inhabitants and is in a sort their owne case Maintenance of a poore man in his suit 29 In a Writ of Maintenance the plaintife supposed that the defendant did maintaine one A. in an action which the plaintife brought against the sayd A. Whereunto the defendant pleaded That the same A. was a poore man 32. H. 6. 35. 21. H. 6. 15. and had nothing to defend himselfe in the suit which the plaintif had commenced against him and that the defendant of his almes gaue him xx s. which is the same maintenance This was allowed a lawfull maintenance and iustifiable for any man to doe for whereas vnlawfull maintenance is in case when a man doth maintaine a suit to haue the whole or parcell of the land 9. H. 6. 64. or thing in question or to haue some other consideration to further or vphold that suit or where a man hauing nothing to do nor colour to meddle yet wil vndertake for euill will to maintaine that cause in question this giuing mony to a poore man to defend his right is not to either of the intents aforesaid but bestowed vpon a charitable disposition to search out truth and further the execution of iustice which appeareth by the stat of 11. H. 7. wherin the king and the whole parliament willing indifferent iustice to be ministred according to the common laws as wel to the poore as to the rich and perceiuing that the poore were not of abilitie to sue according to the law of the realme for the redresse of their iniuries and wrongs ordained that the king himselfe the L. Chancellor and some of each profession towards the law should in a sort aid and assist them the words of which stat be these St. 11. H. 7. 12 viz Euerie poore person which shall haue cause of action against any other shal haue by the discretion of the Chancellor Proces counsellors and Atturneyes assigned to aid the poore writs originall writs of Subpena according to the nature of his cause nothing paying to the K. for the seales of the same nor to any person for the writing of the same writs And the said Chancellor shall assigne such of the clerkes which shal vse the making and writing of the writs to write the same readie to be sealed and also learned Counsell Atturneyes for the same without taking any reward therefore And after the said writs be returned if it bee before the King in his Bench the Iustices there shal assigne to the same poore person counsel learned by their discretions which shall giue their counsell nothing taking for the same And likewise the Iustices shall appoint Atturneyes for the same poore person all other
law doth allow him to doe in respect the sooner to deliuer his seruant from suit and trouble that hée may not loose the benefit of his seruice for the longer he doth lacke his mans seruice the greater is the Masters losse And if the seruant be arrested in any priuiledged place the Master may maintaine him and spend his owne money to deliuer him in respect that otherwise he should loose his seruice for by that meanes he doth maintaine him in his owne behalfe and to auoid his owne hinderance But if the seruant be impleaded in a reall action wherein he may appeare and answer by Attourney and that his owne presence is not requisit 21. H. 7. 40. then the master may not maintaine him therein for that the Master shall receiue no preiudice if the land in question shall be recouered from his seruant And in like sort the seruant may maintaine the Master How the seruant may maintaine his Master in any suit commenced by or against his said Master in all lawfull manner As he may trauaile in furtherance of his Masters suit 19. H. 6. 31. 19. Ed. 4. 3. he may retaine his counsell with his Masters money and shew his counsell or the Iurie vpon the tryall of his Masters cause in question his Masters euidence for he is bound to doe his Master his diligent seruice and that which his Master commaundeth him to do touching his suit is his Masters seruice But that seruant which may iustifie to maintaine his Master in such sort as is aforesaid must be a seruant who is retained with his Master for a yeare 39. H. 6. 5. or some long time and to do all such seruices as he shal be imployed in by his said Master for if he be a seruant onely hired for a day two or thrée or to ride but some one iourney or to do but some one speciall seruice then if he do maintaine his Master or his Master maintaine him in any sort as aforesaid it is vnlawfull maintenance in him But if in either of the cases aforesaid the Master for his seruant or the seruant for his Master shall giue or promise money or other reward to any of the Iurie to giue his verdict or do threaten any of them to be killed beaten maimed dispossessed of their farmes 12. E. 4. 14. 19. H. 6. 31. or do giue his owne money to the Sherife to arrest the other partie to that suit then it is punishable by action of Maintenance in him that shal so offend ⧠Deceit Couin Collusion Fraud 1 DEceit Couin Collusion and Fraud bée great offences to the Commonweale and speciall impediments of the iustice and peace of the Realm wherof there be so many and of so generall sorts and kinds as there be wicked deuises in the hearts of men and lewd persons to put them in practise And it were a worke almost as infinite to diuulge the particulars and to reduce into writing all the Deceits The multitude and enormitie of Deceits and Frauds Couins Collusions and Frauds which in time haue béene inuented and effected as it were to poise the weight of the sands of the sea or to decipher the number of the starres of the element for by how many meanes a man may trust by so many and more hee may bee deceiued And therefore I will vndertake to treat of no more than our common and statute lawes haue detected and accused to bée deceits frauds c. and amongst others but of those which the makers expositors and Sages of our lawes haue noted to be chiefely offensiue and most opposite to the due execution of iustice vpon which this peace whereof I doe write doth chiefely depend For the wisedome of this Realme first in the making of our lawes and after in expounding them haue bent their chiefe care to crush and beat downe Deceit and Fraud plainely séeing that the greatest part of the crimes which bée committed in this kingdome from the highest treason to the smallest trespasse haue some intermixture with them And that if they with their dependants could bée fully extirpat both iustice and peace would more brightly flourish And notwithstanding they doe not begin their quarrels with rapier and dagger sword and buckler as some other of the offences before mentioned do yet is there grafted in the root of them as much gawle and venim and more durable and bitter extremities do spring from them than â—oe ensue by the Canon shot the light horsemans staffe or the footmans bill For though some part of euerie kings raign hath had a calme and repose from war and hostilitie yet neuer any age or yeare was cléerely fréed of falshoods corruptions deceits and frauds 2 The wisedome of the Realme perceiuing how necessarie a thing iustice is and how opposite and repugnant vnto it deceits and frauds bee doth therefore specially prouide to make choyce of such men of all sorts The reward for paines and punishments for deceit of officers towards the law to execute the same iustice as she is persuaded by their learning and experience can by their vertue integritie will performe to euerie person his due and tread beat downe fraud whose pains she doth requite with reuerend respect liberal rewards titles of credit large priuiledges But if she do find any of the said officers whom she putteth in trust to deceiue her expectation and to practise falshood or guile then she doth as sharply punish them as she did before munificently wage them As appeareth by the stat of An. 8. St. 8. R. 2. 4. R. 2. wherby it was ordained A Iudge A Clerke That if any Iudge or Clerke do make any false entring of a plea rase any rol or change any verdict whereby any person receiueth disheritance he be thereof conuict before the K. and his Counsell he shal be punished by fine ransome at the K. pleasure and satisfie the partie And for the recouerie of the inheritance the partie shall sue by writ according to the law And for the auoyding of corruption which may happen in officers in those courts places wherein there is requisit to be had the true administration of iustice to the intent that worthy persons should bée preferred to the places of iustice none other should attaine the same for fée or reward by a stat made An. 5. Stat. 5. 6. E. 6. 16. 6. E. 6. it was enacted No office of iustice shal be sold or bought That if any person bargaine or sell any office or deputation of office or take any mony fée reward or other profit directly or indirectly or take any promise agréement couenant bond or assurance to receiue or haue any mony reward c. for any office or the deputatioÌ„ of any office or any part of any of theÌ„ or to the intent that any person shold enioy any office or the deputation of any of theÌ„ or any part or parcel of any
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
orphans within the City of London or any other City Borough or Towne where Orphans Orphans are commonly vsed to be prouided for either by grant or by custome But the Lord Maior of the city of London and the Aldermen of the same and euery other head Officer of any other Citie c. where such Orphans be prouided for shall and may haue take like rule order kéeping and charge of such Orphans and of all their lands tenements goods cattels as heretofore they vsed or lawfully might haue had vsed if this act had not bin made There was grandmother a widdow mother a widdow ij daughters Co li. 3. 37. the grandmother being seised of certain land in sée holden in socage did by her last wil in writing bequeath the same to the said ij daughters to the heirs of their ij bodies begotten by euen portions equally to be diuided the remainder to the mother being her sole daughter and heire apparant her heires and after the mother maried a second husband and then the grandmother dyed after whose death both the said daughters entred into the said lands so deuised vnto them and then the yonger daughter being betwéene the age of xiiij and xvj yeares and liuing in house with her father in law and mother of her owne will and forwardnesse and with the consent and agréement of her father in law departed foorth of his house in a morning and the same day in another place maried a husband In this case it was adiudged that the said yonger daughter had forfeited her moitie or halfe part of the said lands so deuised vnto her The daughters forfeiture for mariage without her mothers consent by her contracting of Matrimonie and that her said mother should take the benefit of the said forfeiture for the mother had the custodie and gouernement of the said daughter at the time of the said contract by the special words and prouision of the said statute which gouernment was annexed to the person of the mother Iure naturae and was not transferred to her second husband by her mariage as her lands and goods were and so her husbands consent was not materiall nor that consent which the meaning of the makers of that statute did respect and prouide for And though the daughter was forth of her mothers house at the time of the contract of mariage yet in the iudgement of law the mother had then the custodie of her which was inseperable from her person And seeing the foresaid stat of 4. St. 4. 5. P. M. 8. 5. P. M. doth giue the forf to the next of the kin to whom the inheritance should discend or come after her decease during the life of such person that so shall contract matrimonie therfore the partie must be of the blood next of the blood to whom the inheritance vpō such forf shal discend or come which is the mother not the eldest sister for administration may be grāted of the goods of the son or of the daughter dying intestat to the father or mother as to the next of the blood of the party deceased according to the stat of an 21. H. 8. 5. And further though the elder sister be of kin to the yonger yet in this case if the yonger haue any issue her land should discend to her issue and if she haue no issue it should remaine to her mother for that the elder and yonger sisters were tenants in common in taile though they neuer made partitiō indeed the remainder therof to their mother in sée by force of the said deuise of their grandmother who by her will meant and ordained that the land should bee diuided and that one of them should not enioy the whole as suruiuor to the other 41 Hauing written of deceits and frauds practised or performed by some particular persons to others as by the tenant to his Lord Seuerall deceits prohibited by seuerall Statutes the debtor to the creditor the seller to the purchaser the lessor to the lessée c. I am now to expresse and discouer some other guiles frauds and falshoods which the offendors therin do endeuor to put in vse or practise not onely against any one two or more speciall persons as in the cases aforesaid but against euery person that shall put them in trust or otherwise shall haue occasion to vse them or theirs which our stat lawes haue accused and condemned to be offences and haue inflicted vpon the transgressors thereof seuerall punishments As by the stat of Anno 9. St. 9. H. 5. 8. H. 5. falsifiers and counterfeiters of deceitfull and vntrue weights Counterfeiting of weights deceitfull being attainted thereof shal be taken by Iust of peace Sherifes Eschetors other cōmissioners kept in prison without mainprise vntil they haue made fine and ransome according to the Iust discretion St. 23. H. 8. 4 By the stat of An. 23. H. 8. If any diminish a barrell a kilderkin or firkin to the deceit or hurt of another Deceit by diminishing of a vessell by taking out the head or any staffe he shal forf iij. iiij d. and be punished by the discretion of the chiefe officer Deceitfull things vpon fustian before whom the offence shall be presented and the vessell shall be burned By the stat of An. 11. H. 7. Sat. 11. H. 7. 27. If any denizen or forreiner shall vse yrons or other deceitfull thing vpon fustians vnshorne to breake off the nap and cotton of the same but onely the broad shéeres he shall forfeit for euerie offence twentie shillings to the king and him that will sue By the statute of Anno 18. Deceit in goldsmithes work◠El. If any Goldsmith doe make any Goldsmithes worke Sta. 18. El. 14 or plate which shall be touched marked or allowed for good by the Wardens or Masters of that Mysterie and that in the same there shall be found any falshood or deceit then the sayd Wardens and Corporation shall forfeit the value of the thing exchanged or sold to the king and the partie grieued By the Statute of Anno 1. Deceitfull vsing of linnen cloth Eliz. If any do cast or cause to be cast St. 1. El. 12. any péece of linnen cloth ouer a péece of timber and doth by any deuice racke draw and stretch the same of length and bredth and then doth beat it and cast deceitfull liquors mingled with chalke or other things vpon it or doth vse any other deceitfull thing wherby it shal be the worse for the vse thereof then he shal forf the same to the K. and him that will sue for it be one moneth imprisoned at the least and pay such fine as shall be assessed by the Iustices before whom he is condemned By the Statute of Anno 19. Deceits in weights or beames for pewter or brasse H. 7. St. 19. H. 7. 6 4. H. 8. 7. If any
be adiudged to the pillory the third time he shal be imprisoned make fine the fourth time he shall forsweare the towne And in this manner shal it be done of all that offeÌ„d in like case as of cookes that séeth flesh or fish any waies that is not holesome for mans body or after that they haue kept it so long that it looseth the naturall holesomenesse then séeth it againe and sell it And in like sort St. 39. El. 10 by one other statute made An. 39. El. it was enacted That if any alien or stranger born or any denizen or naturall born subiect of this realme shal bring into any hauen port créeke or town of this realme any salt fish or salt herrings which shal not be good swéet seasonable méet for maÌ„s meat shal offer the same to be sold and shall be warned by any officer of such Port c. where the same shal be offered to be sold that the same be not seasonable nor méet for mans meat Then if he or they shall after that offer any of the said vnseasonable fish to be sold to any person within this Realme or being an alien borne and no denizen shall not depart with the same from the said Hauen Port or Towne so soone as conueniencie will serue Then all and euery person owners therof shall forfeit to the Queen all the said vnseasonable fish vnméet for mans meat as is aforesaid And by a statute made Anno 4. Ed. 3. it was established St. 4. E. 3. 12 That assay shall be made of wines twice euery yeare once at Easter and another time at Michaelmas and more oft if néed be by the lords of the Townes and their Baylifes and also by the Mayors and Baylifes of the same townes and all wines that be found corrupt shal be powred out and the vessels broken ⧠Extortion Exaction 1 EXtortion is a wrong done by an Officer What is Extortion as Ordinarie Archdeacon Officiall Maior Bailife Shirife Escheator Coroner Vndershirife Auditor Receiuer Clerke or other Officer or by any other by colour of an office in taking of an excessiue reward or fée and more then the law doth allow him for execution of his said office which offence in some degrées is worse then the priuy picking of a mans purse in secret and the transgressor in a sort may be compared to the Fréebooter which with drawne sword and with menacing words assaulteth the trauailer by the way who casteth down his purse to him for feare of further hurt And so is the poore sutor many times inforced to doe to the Officer when of necessitie he must vse his helpe It is a thing most odious and offensiue to the iustice and peace of the Realme and to all the members thereof that those men who be specially made choice of and principally selected to serue their prince and countrey and to further the execution of iustice in their offices and places and be sufficiently rewarded with conuenient stipends for their paines therein should in contempt of the law assesse their owne fées in a sort put their hands in other mens purses and there take what they will and thereby doe wrong vnder the colour and shadow of iustice Exaction is a wrong done by an officer What is Exaction or by one pretending to haue authoritie in demaunding and taking reward or fée for that matter cause or thing which the law doth allow no fée at all And as our common statute lawes haue declared which offences or acts they doe condemne and adiudge as Extortions and Exactions so haue they prescribed in most cases seuerall penalties to be inflicted vpon the seuerall transgressors therein leauing the residue to be punished at the kings pleasure or by the discretion of such of his Iudges Iustices or others by his commission authorized before whom the offendors shall be thereof conuicted And further our said statute lawes haue set downe for the most part what fées or duties the sutor ought to pay to the officer the officer is to demaund of him to the intent that the one shall not be ignorant what to offer nor the other what to require and to the end that the Law hauing written it in a sort in the officers forehead what his duty is he may blush when he looketh in the sutors face and demaundeth more 2 I will begin with an Exaction that no former generation did tast of heare of or feare but it hath sprung vp of later yeares bin greatly exclaimed of and condemned in this our present age which is taking of money or some other reward for a Report or Certificat wherein the offendor most commonly doth a double iniury and to two seuerall persons viz. first to him whose mony fee or other reward he taketh for the fauourable making of that report in his behalfe whereas the law doth allow him none for reporting but otherwise bountifully rewardeth him for that and all such other paines and next and chiefely to him in preiudice of whom or whose case he maketh that report He doth not now indifferently respect the cause in question but bendeth his eye vpoÌ„ the reward which he hath receiued and deuiseth to accomplish the request of the one and yet to yéeld to the other not the effect but some colour of iustice The King at his coronation doth promise to all his subiects Mag. Chart. St. 9. H. 3. 29 Quod nulli vendemus nulli negabimus aut differemus iusticiam whereupon the whole realme did take it vnkindly at their hands who being the kings Substitutes in place of iustice and receiuing but a small particle of his authoritie would doe then all the said offences at once and sell denie and deferre iustice to some of the kings subiects certifie that for good which was bad or that for iustice which was méere iniurie Or if they did make report and certificat of that which was iust and true would sell it and take money or other reward for it which the king himselfe vpon his oath refuseth to doe And therefore because all exâ—â—tions extortions and corruptions be odious as well in this as in all other well gouerned Commonweales and to the intent to preuent the like enormities in this and other ages by a statute made Anno 1. Iacob it was enacted St. 1. Iac. 10 That no person to whom any order or cause shal be committed Exaction by taking or reward for a report or referred by any of the Kings Iudges or Courts at Westminster or any other Court directly or indirectly or by any act shift colour or deuice haue take or receiue any money fée reward couenant obligation promise agréement or any other thing for his report or certificat by writing or otherwise vpon paine of forfeiture of one hundred pounds for euery such report or certificat and to be depriued of his office and place in the same Court The one moitie to be to the king his
take of any archbishop bishop or other persoÌ„ hauing charge with the collection and payment of the Tenth of Spirituall promotions any reward for making his account or Quietus est in the same Exchequer or for any thing concerning the Tenth he shall forfeit his office and make fine at the kings pleasure Extortion in a clerke of the signet oâ— priuy seale 13 By the statute of Anno 27. H. 8. it was established St. 27. H. 8 11 That all and euery Clerke and Clerkes of the Signet and priuie Seale shall haue and take for his or their writing of a warrant vpon a Bill for Tales of reward twelue pence for the writing of a warrant for the gift of euery office twenty pence for the writing of a warrant for a pention annuitie or wages twenty pence for the writing of a warrant for a speciall Liuery or other perpetuity sixe shillings eight pence for the writing of a warrant vpon euery bill for a Conge deslier royall assent restitution of Temporalties Donatiues Aduocations Presentations or other Ecclesiasticall matter thrée shillings foure pence for the writing of euery warrant vpon a Placard Licence Pardon or Shirifes reward two shillings for the writing of euery warrant vpon a denizen thrée shillings foure pence for the writing of a warrant for the kéeping of an ideot twenty pence for the writing of a warrant for the kéeping of a Ward thrée shillings foure pence And no Clerke or Clerkes of the Signet or priuy Seale aforesaid shall take for the writing of any manner warrant aboue specified more large and ample fées then is before prescribed vpon paine of ten pounds to be forfeited to the K. I. to be recouered by B.A.P.I. in any of the kings Courts wherein no E. P. W. shal be admitted Extortion by officers of the faculties 14 To the intent that the Clerke of the Faculties St. 25. H. 8. 21. and his inferior officers and clerks might content themselues with their fées duties assigned extort no more by the statute of Anno 25. H. 8. it was enacted That such as shall exact or receiue of any sutor more for a dispensation faculty or licence then is contained in the two bookes of one tenor of Taxes shall forfeit tenne times so much as he shall so extortiously receiue exact to the K. his heires successors the party that will sue to be recouered by A. B. P. wherein no E. W. P shal be admitted Extortion vpon prentices fréemen 15 Because no Extortion should bee committed vpon apprentices when they begin or end their termes by the stat of Anno 22. H. 8. Anno 28. St. 22. H. 8. 8 St. 22. H. 8. 5 H. 8. it was established That no Masters Wardens or Fellowships of crafts nor any of them shall take of any apprentice or other person for the entry of the said prentice into their said Fellowship aboue the summe of ij sÌ„ vj. d. nor for his entry when his yeares or terme is expired aboue iij. s. iiij d. vpon paine to forf for euery time that they or any of them shall offeÌ„d contrary to this act xl l. to the K. and the I. c. to be recouered by A. I. c. wherein no P. E. c. The fées of the officers of the court of wards 16 Because the makers of our lawes were willing to giue forewarning to the officers of the Court of Wards to eschew extortion St. 32. H. 8. 46. therefore by the stat of An. 32. H. 8. it was enacted That the master officers of the Court of wards liueries shal take for the fées of all proces at the suit of the parties vnder the priuy seale of the same court ij sÌ„ vj. d. for the fées of al coÌ„missions directed out at the suit of the parties ij sÌ„ vj. d. for recording of all apparaÌ„ces iiij d. no more St. 26. H. 8. 3 17 By the statute of Anno 26. H. 8. The fées for obligations for first fruits it was prouided to auoide Extortion in the officers of the first fruits That no person shall compell an other to pay for any writing obligatorie to be made for the paiment of the first fruits of Ecclesiasticall liuings to the King aboue eight pence nor for any acquitance for the receit thereof aboue foure pence 18 For that Eschetors should know what is their duetie for the finding of offices and for the execution of Writs Extortion by Escâ—cators to the intent that they might thereby the easlier shunne the danger of Extortion if they will by a statute made Anno 33. St. 33. H. 8. 22. H. 8. it was enacted That if any Escheator doth take aboue the summe of xv shillings for the finding of an office of any lands tenements or hereditaments not excéeding the cléere yearely valew of fiue pound viz. for the Escheators fée vj. sÌ„ viij d for the writing of the office iij. sÌ„ iiij d for the charges of the Iurie iij. sÌ„ and for the officers that shall receiue the said office in any court of Record ij sÌ„ he shall forfeit for euery time so offending v. l. to the K. and I. to be recouered by A. I. wherein no W.E.P. c. And by the statute of Anno 23. St. 23. H. 6. 17. H. 6. it was ordained That if an Escheator do take priuily or openly by himselfe or any other aboue the summe of xl sÌ„ for the execution of any Writ in one countie he shall forfeit for euery offence forty pounds whereof one halfe shall be to the King and the other to him that will sue 19 To preuent Exactions by the officers of the Admiralty vpon those who trauaile into other Countries St. 2. Ed. 6. 6 for the getting of fish Exactions vpon them who trauaile for fish by a Statute made Anno 2. Ed. 6. it was ordained That if the Admirall or any officer or minister of the Admiraltie shall exact receiue or take by himselfe his seruant or deputie of any merchant or fisherman any summe of mony doles or shares of fish or any other reward or benefite for any licence to passe this Realme into Island New-found-land Ireland or other places commodious for the getting of fish or for any other respect concerning the said voiages hée shall forfeit for the first offence treble the summe or valew of the reward so taken to the King and him that will sue for the same to be recouered by A.I. c. wherein no W.E.P. c. And for the second offence shall loose his office and make fine at the Kings pleasure 20 To the intent that the Marshall of the Marshalsey of the Court of the Kings house may take such fées in open Court as were wont to be taken in the time of King Edward the third and none other The fées of the Marshall of the K. house and may thereby omit to commit Extortion St. 2. H.
disburse money for learned councell for processe for pleading for copies and many other things and after receiue the same againe with their owne fées and salarie for their paines of their Clients Therefore the Law as a prouident mistris taking care that Atturnies and Sollicitors shal not in any secret maner commit extortion by charging their Clients with excessiue fées vnnecessary demaunds St. 3. Iac. 7. by a statute made An̄ 3. Iac. procured it to be established Meanes for Atturnies to auoide the suspition of extortion That no Atturney Sollicitor or seruant to any shal be allowed from his Client or master of or for any fée giuen to any Serieant or Councellor at law or of or for any sum or sums of mony giuen for copies to any clarke or clarkes or officers in any court of Record at Westm vnles he haue a ticket subscribed with the hand name of the same Serieant or Councellor clarke clarks or officers aforesaid testifying how much he hath receiued for his fée or giuen or paid for copies at what time how often And all Atturnies and Sollicitors shall giue a true Bill vnto their masters or clients or their assignées of all other charges concerning the suits which they haue for them subscribed with his owne hand name before such time as they or any of them shall charge their clients with any the same fées or charges An Atturney delaying of a suite or demāding more thā is due And if the atturney or sollicitor doe or shall willingly delay his clients suits to worke his owne gaine or demand by his bil any other sums of mony or allowance vpon his accompt of any mony which he hath not laid out or disbursed then in euery such case the partie grieued shall haue his action against such atturney or sollicitor and recouer therein costs and treble dammages And the said atturney sollicitor shall be discharged from thenceforth from being an atturney or sollicitor any more 25 For that the Stewards of Léets and court Barons did of late yeares get into their owne hands and in their owne names or into the hands of some of their friends to their vse the profits and perquisites of the said Léets and court Barons whereby many sutors to the same Courts were iniustly vexed and by grieuous fines and amerciaments vnduely punished and much extortion was done vnto the Tenants and Inhabitants where such stewards were to make and obtaine an vndue extraordinary gaine to themselues for the restraining whereof A preuention of extortion in Stewards of Courts by a statute made Anno 1. St. 1. Iac. 5. Iac. it was established That no Steward deputie Steward or vnder Steward of any court Léete or court Baron shall directly or indirectly in his owne name or in the name of any other take receiue or make benefite to his owne vse in money goods or any other thing to the valew of twelue pence or more by vertue or colour of any demise or graunt héereafter to be made of any of the profites or perquisites or amerciaments of any such Courts whereof they are Steward which rightfully shall belong to the Lords of the same vpon paine that euery Steward offending contrary to the Tenour of this Act shall for euery such offence forfeit tenne pounds and to be disabled euer after to be Steward of such Court or of any other The one moitie of which forfeiture shall be to the K. c. and the other to any party that will sue to be recouered in any of the Kings Courts of Record by A. B. P. I. c. wherein no E. P. or other dilatorie plea shall be allowed 26 To the intent that Gaugeors and Searchers of barrells of fish should know what was due vnto them for their paines and take no more nor commit extortion Extortion in Gaugeors Searchers and Packers of fish by a statute made Anno 11. H. 7. it was enacted St. 11. H. 7. 23. That euery Gaugeor Packer and Searcher shall take no more for gauging of a barrell of salmon herring fish éeles halfe barrell and firkin than for euery péece a farthing and for his labour for searching and packing if néede be of a barrell of salmon from head to head a peny and for boning naping and packing of a barrel of fish if néed be a peny and for searching and for packing of a barrell of herring if néed be two pence and for searching and packing of euerie barrell of éeles ij d and so in halfe barrels and firkins of herrings and éeles they shal take according to the former rate And if any Gaugeor Searcher or Packer do the contrary he shall loose his office and also be imprisoned forty dayes But the said Searcher or Packer shall receiue nothing of the said fées by colour of their office but onely for such Buts Barrels halfe Barrels and Firkins as by them shall be sufficiently searched and packed and were not sufficiently packed before 27 In the raignes of K. Edward the third and K. Henry the fift the Commons seuerall times complained in parliament of diuers extortions committed by Ordinaries and their officers in probat of Testaments making of Inuentories and giuing of Acquitances as it doth appeare by the statute of Anno 31. Ed. 3. and Anno 3. H. 5. St. 31. Ed. 3. 4. St. 3. H. 5. 8. But because the former of those statutes inflicted no condigne punishment vpon the offendors therein and the later is expired A preuention of extortion in Ordinaries and their officers and also for that the same extortions enormity did encrease Therfore for the redresse of the same by a Statute made Anno 21. H. 8. St. 21. H. 8. 5 it was established That nothing shall be demaunded receiued or taken by any Bishop Ordinarie Archdeacon Chancellor Commissarie Officiall nor any other person or persons whatsoeuer hauing authoritie to take or receiue probation insinuation or approbation of Testament or Testaments by him or themselues nor by his or their Registers Scribes Praisors Summoners Apparitors or by any other of their Ministers for the probation of any Testament The Ordinaries duty for probat of Testaments The goods not amounting to C. s̄ or for writing sealing praising registring fines making of inuentories giuing of Acquitances of for any cause concerning the same where the goods of the Testator of the said Testament or person so dying doe not amount cléerly ouer aboue the value of C. s̄ sterling except only to the scribe to haue for the writing of the probat of the Testament of him deceased vj. d. And for the commission of administration of the goods of any man deceasing intestate not being aboue the like valew of C. s̄ cleere vj. d. And when the goods of the Testator do amount ouer and aboue the cléere valew of C. s̄ The goods not amounting to xl l. and do not excéed the summe of forty pounds sterling Then no Bishop
lesse without award of the Kings Court he shall make fine according to the quantitie of the trespas and neuerthelesse sufficient amends shal be to them which haue receiued losse by such distresse Distraining out of his fee. Or if one do distrain another to come to his Court which is not of his fée or vpon whom hee hath no iurisdiction by reason of his Hundred or Bailiwike or doe take a distresse without his fée or the place where he hath iurisdiction or bailiwike hee shall make fine according to the quantitie of his offence Excessiue distresse Or if one do take any vnreasonable excessiue distresses which is grieuous and more than the quantitie of the debt or damages this is an oppression an he shall be amerced 41. Ed. 3. 26 29. Ed. 3. 23. As a man auowed the distraining of 200. shéepe and 16. beasts for ij pence rent and he was amerced therefore for all that he tooke aboue vj. shéepe were adiudged an oppression and so vnlawful But if a man distraine for homage 28. Ass p. 50 42. Ed. 3. 26. Co. li. 4. 8. Fitz. Na. Br. 178. 27. Ass p. 51 28. Ass p. 50 the distresse cannot be too excessiue how many beasts soeuer he doth take for that homage is not valuable though for rent fealtie and other seruices it may be excessiue And in like sort Oppression by often distresse if the Lord of a Mannor or any other who hath rent issuing forth of certaine land do distraine the tenant of the same land diuers times for rent or seruices where none is behind vnpaid this is an oppression of the same tenant who is distrained for in this case the partie who claimeth this rent cannot distraine for rent séeing none was due to him but his distresse is onely taken to vexe the tenant of the land and so to oppresse him And therefore the sayd tenant may haue an Assise of Souent foits distresse against the same Lord and recouer dammages of him according to the losse he hath receiued by the same distresses viz. for not plowing or for not manuring his land Lib. in t 82. Co. li. 4. 8. or for taking no profit thereby But it is otherwise if the same seuerall distresses were taken for homage Seueral distresses for one thing And so it is if a man do distraine for rent or seruices or for any other thing Fit Nat. Br. 71. and depending a suit betwéene the parties for the same rent seruice or other thing he who did distrain doth distrain again for the same rent seruice or thing for the which he did distrain before the beasts or goods of him whose hée did first distraine this is an oppression of him whose goods be twice distrained For the redresse whereof hée may haue a writ of Recaption A writ of Recaption against him who so did distraine his goods twice for one cause whereby hée shall recouer dammages for his second distresse And also hée that did take the same distresse shall make fine to the King for his oppression and wrong though the first distresse were lawfully taken yea and though the rent or seruice for the which he did distraine were behind vnpayed or vndone séeing by the first distresse the cause being prooued true and lawfull hée might haue had returne of the goods or cattell which hee did distraine vntill hée had béene satisfied of the rent seruice or thing for the which hée did distraine But a man may distraine the cattell of him who bée eating of his corne or grasse Distresses for damages for t or doing any other hurt in his ground 47. Ed. 3. 7 so often as he shall find them doing hurt therein and it is no oppression or wrong so to do for he doth not distraine twice for one cause as in the former case but distraineth seuerall times for seuerall new offences 4 And euerie Trespasse which the law doth interpret to bee iniuriously committed vi armis may also fitly be termed an oppression for it is done vpon the offendors owne wrong without warrant of law St. 5. R. 2. â— As if one person doe enter vpon anothers land expell him out of the possession therof whereas his entry is not giuen by the law or doth enter with strong hand or multitude of people Fitz. Tresp 13. 45. 234 20. H. 6. 22. 9. Ed. 4. 28. 9. H. 6. 64. 21. H. 6. 5. 21. Ed. 4. 18. 9. Ed. 4. 29. 10. Ed. 4. 4. 21. Ed. 4. 4. 1. H. 7. 10. 37. H. 6. 36. 21. H. 7. 1â— 11. H. 4. 64. 20. H. 6. 14. 3. H. 6. 12. 10. H. 6. 16. 43. Ed 3. 13. 4. Ed. 3. 48 47. Ed. 3. 22 43. Ed. 3. 35 1. H. 5. 1. and not in peaceable manner this is an oppression And so it is Oppression by Trespasses if one person doe pull downe breake or impaire anothers house or any part thereof Or if one person doe fell cut downe or carrie away the Timber Trées or Wood of another Or if one person doe fell cut tread downe or carrie away the corne or grasse of another Or if one person doe with his cattell depasture feed or eat the corne grasse or hay of another Or if one person doe take and carrie away the money plate iewels houshold-stuffe cattell corne hay or any kind of goods of anothers Or if one person doe plough till eyre or digge the ground or soyle of another Or if one person doe mayme imprison wound or beat another or doth mayme wound or beat the seruant of another whereby he looseth his seruice Or if one person doe hunt chase or hawke in the frée Warren of another or doe take kill or destroy his game there Or if one person doe fish in the Pond Poole Mildam Stew or other seuerall fishing of another Or if one person doe breake the doue-house of another or destroy the flight of the doues of another Or if one person doe digge the Myne of Tinne Lead Stone Coale Grauell Sand Matle Chalke c. of another Or if one person doe pull vp take away the meerestones which by consent haue béen set betwéen his own ground and anothers In all and euerie of which cases the partie grieued may pursue an Action of Trespasse against the offendor and declare that hée committed any of the said offences vi armâ—s wherein if the defendant be attainted hée shall pay to the plaintife his dammages sustained and to the King a fine for that he hath done an oppression to one of his subiects and made an offence to the law Fit Nat. Br. 183. 4. Ass p. 3. 5 Euerie Nusance which one person doth to the land of another Oppression by Nusances wherein the owner hath an estate for the terme of life in tayle or in fée simple may also bée accounted an oppression for those Nusances be put in practise by the offendors onely will and by his owne open playne and manifest
wrong to the disheritance of another or to the preiudice of his Fréehold without any warrant of law 18. Ed. 3. 22. 21. Ed. 3. 2 Co. li. 5. 101. Li. Int. 406. or colour of iustice As if one person doe build or leuie a house a wall a shead a leantor a chimney a gutter or other structarie in his owne ground to the offence of anothers fréehold or to the drowning or rotting of his house or to the stopping of his light or way thereunto this is an oppression 46. Ed. 3. 23. 7. Ed. 3. 56. And if one person doe leuie rayse abate or pull downe a Damme Poole Pond or Ditch to the hurt of anothers Fréehold that is an oppression 27. Ed. 3. 88. 12. H. 4. 3. 8. Ed. 4. 5. 48. Ed. 3. 27 8. Eliz. Dyer 2 50. 14. Eliz. Dyer 319. And if one person doe stoppe straiten or turne an auncient water-course to the hurt of anothers Freehold or in such sort as it doth drowne the ground or soyle of another that is an oppression And if one person do stoppe streiten or greatly impaire anothers highway which hée hath belonging to his Fréehold that is an oppression If one person doe conuey water to his house or ground by a pipe of lead timber or vault of stone and another person will make another pype out of that pype to take away part of the same water that is an oppression of him that made the first pype And if one doe erect a lime-kill néere vnto anothers dwelling house 4. Ed. 3. 36 5. Ed. 3. 43. 4. Ass p. 3. the smoake and heat whereof when it is set on fire doth annoy the inhabitant of the said house and his familie or doth scorch or dry vp the fruit trées in his orchard that is an oppression And if one person hath the fréehold of a seueral fishing in a riuer pond poole moat mill damme or other water Lib. in t 406. and another person wil build a dye-house adioyning or neere vnto it and then will powre out or cause to run from thence corrupt ashes dung slime filth or other annoyances into the said seuerall fishing place to the distruction of the fish there whereby the owner doth loose the benefit of his seuerall fishing that is an oppression of him And if one person will erect or settle vp a Faire or Market Fit Nat. Br. 184. Register 197. 199. Li. Int. 407. to the preiudice or hinderance of anothers Faire or Market that is an oppression of him who had the first Faire or Market And if one person do lay timber faggots stones lime sand grauell dung or any other thing vpon or against the house of another which do rot putrifie corrupt or impaire the walls timber or other part of the same house or any corrupt noisome or stinking thing the sauor or smell whereof is offensiue to the inhabitant of the same house and his familie that is an oppression of the same inhabitant The remedies for oppression by Nusances In which foresaid cases the parties grieued by the said Nusances and oppressions may in some cases haue their remedies by Assise of Nusance brought in the Common Pleas in some other cases by writs of Nusance called Vicountiels tryed in the Countie before the Sherife in some other cases by the writ of Quod permittat in some other cases by action vpon the case and in most of the sayd cases the sayd parties grieued by the sayd Nusances may take away pull downe Co. li. 5. 101. and remooue the same Nusances as their seuerall estates will enable them or their seuerall cases doe require Oppression by Rescous 6 Euerie Rescous that is vnlawfully made of cattel or other goods distrained is an oppression for the offendor doth a wrong of his owne authoritie to the preiudice of another in contempt of the iustice of the Realme without any warrant or colour of law Séeing when the partie grieued by himselfe 44. Ed. 3. 20 40. Ed. 3. 32. 17. Ed. 3. 43. 18. Ed. 3. 30 2. H. 4. 15. or some other doth distraine within his fée for his rent or seruices behind for dammages which hée hath sustained for amerciaments a rent charge or for some other cause which hée taketh to bée lawfull the cattell or other goods of him who he doth conceiue detaineth his due rent or seruice from him or whose cattell haue eaten or spoyled his corne or grasse or otherwise haue trespassed in his ground and doth in quiet and peaceable manner driue them towards the pownd there to remaine as a pledge sub custodia legis vntill the law hath decided whether there was iust cause of distresse or not the owner of the same cattell or some other in his behalfe will by force and strong hand make Rescous of this cattell and take them from him who distrayned them and so will not submit himselfe to the censure of the law nor tarrie vntill it be discussed by the ordinarie course of iustice whether the party that distrained had lawfull cause so to doe or not but will be his owne iudge and take the authoritie of reuenge to himselfe which is an oppression of him whose rent or seruices were due and vnpayd or whose corne or grasse was eaten c. and who was also forcibly depriued of the ordinarie remedie which the law did assigne him for the recouerie of his owne duetie And moreouer it is a contempt of the law which the same offendor doth refuse to be iudged by 7. H. 6. 1. 22. H. 6. 54. Fitz. Na. Br. 101. and therefore in this case the partie grieued may pursue against the offendor a writ of Rescous for this Rescous made and oppression done vnto him and thereby recouer his dammages and also the King shall haue a fine of him for this contempt of his law and his peace broken Li. Int. 527. and the offendor shall be imprisoned vntill hée hath paid the same 7 Euery Encrochment which one person doth make vpon anothers land Oppression by incrochments ground couered with water rent or seruice is also an Oppression for they be done and put in practise by the offendors own open plaine manifest wrong without any warrant or colour of the law As it is an oppression for one person by ploughing earing ditching hedging remoouing of Méerestones or land markes 22. Ass p. 93 to get away the ground or soyle of another and so it is for one person to draw away or alter an auncient Riuer Brooke or Streame of another persons out of the old and wonted course and so it is if there be lord and tenant and the tenant doth hold his land of his lord by fealty fiue shillings of yearely rent and of late yeares the lord hath had seisin of more rent of the tenant by the tenants owne payment without cohertion of Distresse if in this case the lord will distraine his tenants Cattell for that surplusage of rent that
suffer to bée drowned continually a Meddow or other ground demised for it is not lawfull for a particular Tenant to conuert ground to any other vse then hee receiued it as to turne Meddow into arable arable into Wood 29. H. 8. Dyer 37. Wood into Pasture or Meddow arable or Wood into Pooles or Ponds for thereby he doth wrong to the inheritance for his owne profit And likewise it is wast if the Tenant doe suffer the Bankes of the Sea or of a Riuer to be vsually ouerflowne and to decay whereby a Meddow a Pasture 20. H. 6. 1. or other ground which he holdeth for life or yeares that before was fruitfull shall become rushie sedgie or otherwise barren But if he suffer ground set with Saffron to decay or Land Meddow 10. H. 7. 2 Fit N.B. 59 2. H. 6. 10. or Pasture to grow full of Bushes or Thornes or to lye fresh and not manured it is no Wast but euill husbandrie If the owner of a Poole or Pond stored with fish doe assure the same for yeares life or c. and the tenant letteth foorth the water or otherwise fisheth the same and taketh foorth the fish or part thereof and yet leaueth it as sufficiently stored at the end of his terme 7. H. 3. Wast 141. 5. R. 2. Wast 97. Ed. 1. Wast 128. as at the beginning thereof he found it this is no Wast But if hée doe let foorth the water of the said poole or c. and suffer the same to lye continually dry or doe destroy by other meanes the fish therein and doe not repaire it and leaue it as well and sufficiently stored with fish as he receiued it by the view and iudgement of the countrey then it is wast and hée may bée punished therefore by an action of Wast And the same Law is if one doe assure to another for terme of yeares or life a Parke stored with Déere and the tenant destroyeth all the Déere and doth not store the same againe with as many before the end of his terme this is Wast If the tenant for terme of life yeares or c. of a seuerall Pasture or Close inclosed with a Wall Pale or Quick-set hedge 12. H. 8. 1. doe suffer the same to decay it is wast for by the decay of the Wall Pale or Quick-set hedge he hath made it no pasture but layed it in common As concerning wast in houses it is wast Wast in houses and an oppression of him or them in reuersion or remainder if the tenant for terme of yeares life or c. doe willingly pull downe 34. E 3. Wast 145. 3. H. 6. 53. 4. Ed. 3. Wast 22. 21. H. 6. 46. 38. E. 3. 7. 40. E. 3. Wast 90. or negligently suffer to decay a dwelling house or any Hall Parlour Chamber Buttery Kitchin Brew-house Bake-house Day-house Doue-house Barne Stable Oxe-house Kill-house Myll Cottage or any other House Cullice Leantor Edifice or Building being of the value of thrée shillings foure pence which being couered and in good repaire was standing and béeing vpon the ground when the same tenant did or lawfully might haue entred vpon the lands demised in respect of his Lease 17. E. 3. 7. 42. Ed. 3. 22. 17. Ed. 2. Wast 118. or other estate to him assured thereof And also it is wast if any of the particular tenants aforesaid doe during his estate build any new House Floore or Partition vpon any land demised or conueyed vnto him and after hée or his assignées doe pull downe the same againe or suffer the same to fall into ruine and decay for that the House Floore or Partition being builded was once parcell of the inheritance of the Lessor and therefore béeing againe pulled downe or decayed it is to his disheritance But if the Lessor doe build a house vpon the ground so demised or assured 49. Ed. 3. 1. during the estate of the particular Tenant therein and the Tenant doe pull it downe or suffer it to decay it is no Wast for it was not parcell of the thing demised neyther was there any couenant in Law that it should bée repaired And it is Wast if any of the Houses Edifices or Buildings aforesaid bée willingly or negligently burned 19. Ed. 3. Wast 30. 20. Ed. 3. Wast 32. pulled or throwne downe by the Tenant thereof or by any of his Family or Neighbours or by any other person whatsoeuer so that it bée not by the kings enemies Thunder Lightening extreame Wind or Tempest in which cases it is no Wast punishable by the Law 44. E. 3. 34. 43. Ed. 3. 6. 28. H. 8. Dyer 33. 33. H. 6. 1 séeing they were burned or throwne downe by the power and hand of God But it is otherwise if it bée burned or ouerthrowne by Rebels or others against whom the Tenant may haue his remedie and recompence by the Law For in that case it is punishable by action of Wast if it bée not repayred againe within conuenient time If a Tenant for life 44. E. 3. 44. 10. H. 7. 5. 29. H. 8. Dyer 36. 21. H. 6. 2 Fit N.B. 59. 40. Ass p. 22 yeares or c. doe suffer a Pale or a wall of Stone Bricke Timber or Mudde which is couered with Slate Tyle Timber or Thatch to decay or lye vncouered it is Wast But if any House Pale or Wall were ruinous or vncouered at the time when the estate of the sayd Tenant begun and after did decay and fall downe then the tenant is not chargeable therefore in an Action of Wast for hée is bound to kéepe them in none other repaire then he found them If the tenant for yeares or life or c. doe take away a partition or a loft in a house 10. H. 7. 5. 42. E. 3 6. whereby hée doth make two chambers or other two roomes or more but one it is wast for the tenant must maintaine the house and leaue it in such sort as it was demised vnto him and not transpose or alter any part thereof otherwise then hée receiued it And in like sort it is Wast if the said tenant doe take away a Furnace a Bench a Table fixed in the ground a Doore 21. H. 6. 26. or a Window from a house which were there at the time when his estate began for they bée made parcell of the inheritance of the house and were demised with it and cannot bée seuered from it but by him who hath the inheritance thereof And yet if the same were set there by the termor then hée may take them away againe at any time during his terme 20. H. 7. 13. but not after his terme expired And it is Wast if the Tenant doe take away the glasse of the windowes of a house Co. li. 4. 63. for whether the lessor or the lessée did set vp the same glasse and whether it bée set vp with nayles lyme or otherwise the â—ermor ought not to take it away
for without the glasse it is not a perfect house The same Law is of Wainscot whether it bée affixed to the house by the lessor or by the lessée or whether it bée fastened by great nayles or small nayles or by screwes or yrons put through the postes or wals or by any other meanes yet if it bée taken away it is Wast and the Tenant of the house shall bée punished for it by action of Wast for it is made parcell of the house as séeling and plastering of a house is For the sayd Furnace Bench Table Doore Glasse 20. H. 7. 13. 21. H. 7. 26. and Wainscot are made parcell of the inheritance of the house as the Wals Beames and Transomes bee and they shall discend to the heire of the house and not accrue to the executors Neither shall they bée forfeited by Vtlarie nor attached in an Assise as Chattels may But if in any of the cases aforesaid the Tenant doe repaire the house or thing wasted 20. E 3. Wast 32. 22. H. 6. 58. 28. H. 6. 2. 38. Ass p. 1 42. Ed. 3. 22. and make it so long so broad so high and in such and so good sort as it was when his estate did begin before any action of Wast shall bée brought against him therefore then no action of Wast is maintenable against him for that cause Notwithstanding if any house wall couered or c. were ruinous at the time of the beginning of the Tenants estate 22 H. 6. 18 21. Ed. 4. 39. and after the Tenant doe pull it downe and build it againe though it bée not so large as it was before yet is it no Wast neither is the Tenant punishable therefore by an action of Wast for that he had not béen punishable therefore if hée had suffered it wholly to decay and not haue builded againe any part thereof If Wast bée committed in seuerall principall parts of a house 4. Ed. 3. 32. 8. Ed 2. Wast 112. 12 Ed. 3. Wast 108. 127. he in the reuersion or remainder thereof may by an action of Wast recouer the whole house for this dispersed Wast As in like case if Timber Trées of Oake Ash or Elme bée felled in seuerall parts of a Wood or Close hée in the reuersion or remainder may by an action of Wast recouer against the Tenant the whole Wood or Close for this dispersed Wast To procéede according to the wordes of the Writ with Wast in Woods Wast in woods If the Lessée for yeares Lessée for life Tenant in Dower Plo. Com. 470. 3. E. 6. Dyer 65. 7. H. 6. 40 21. H. 6. 46 14. H. 4. 12. or c. doe sell or fell Oakes Ashes or Elmes béeing of twenty yeares growth and aboue the value of thrée shillings foure pence this is Wast and punishable by an Action of Wast For those Trées of that age will endure long bée méete for Building and bée parcell of the inheritance of him in the reuersion or remainder 27. H. 6. Wast 8. 29. H. 8. Dyer 36. Co. li. 4. 64 and notwithstanding the said lease or any other particular estate for life assured the same trees be the leassors and not the leassees though the leassor cannot fell them or graunt or sell them to any other without consent of the tenant for that the said tenant hath the loppe and maste of them and shade for his cattell And likewise if the boughes or braunches of any of the same trées beeing of the said age of twentie yeares bée cut downe by the tenant the same is also wast for they in like sort may serue for building But if a house with certaine ground be assured to a tenant for terme of yeares life or c. whereupon Oake 7. H. 6. 40. 41. Ed. 3. Wast 82. Ash or Elme aboue twentie yeares of age be growing if the same house doe fall in decay during the said terme the said tenant of his owne authoritie without the assignement of the Leassor may fell sufficient of the said Oake Ashe or Elme to repaire the same house for the Law hath ordained that one commoditie or parcell of the farme demised shall help to maintaine the other And so the tenant if hee will may fell timber to repaire the house though the same were in decay at the time of his entrie Notwithstanding 12. H. 8. 1. 7. H. 6. 40. 29. H. 8. Dyer 36. 49. E. 3. 1. 42. Ed. 3. 22. 11. H. 4. 31. 9. H. 4. Wast 59. 9. H. 6. 66. if hee bée so disposed hee may permit the same house which he so found in decay to bee vtterly ruinated and fall downe for hée need not keepe the house in other repaire than he receiued it But if the tenant doe giue or sell any timber or fell more for any of the vses aforesaid than is necessarie and sufficient or doe fell any timber to build a newe house where there was none vpon the ground before then he may bee punished therefore by an Action of wast And the same Law is of a Copieholder who can fell no timber but to repaire his houses which hee holdeth by copie of Court Roll. The felling of Maples Sallowes Willowes Hornebeams Crabtrees 46. E. 3. 17. Hasils Thornes or such like is no wast for that they will not continue long nor serue for building And therefore they are accounted seasonable wood and are lawfully to bée felled by the termor and to bée spent vpon the same ground for house-bot 12. H. 8. 1. plough-bot hedge-bot fold-bote or fire-bote which the Law doth allowe to the termor for yeares or life And the tenant may fell Oakes Ashes or Elmes for any of the purposes aforesaid 21. H. 6. 46. if there be no vnderwood growing vpon the same ground to be imployed to those vses By the custome of some countrie where wood is plentifull Oakes Ashes and Elmes vnder twentie yeares groweth be called vnderwood 11. H. 6. 1. Lib. Intr. 617. or seasonable wood and may be felled by the termor for any of the vses aforesaid and so may wrangles aboue twentie years growth which are neuer like to prooue timber or méete for building but in some other countries where wood is scant it is otherwise Felling of seasonable wood 40. E. 3. 25. Fitz. N.B. 59. which is vsed to bée cut euery seauen tenne fiftéene or twenty yeares is no wast Neither is it wast for the tenant to fell and take dotards or to take windfalles wherein there is no timber for they bee the tenants to vse and spend as is aforesaid 7. H 6. 40. Co li. 4. 64. Fit N.B. 59 29. Ed. 3. 33. But windfalles wherein there is any timber bée the Leassors And so is the timber of a house which doth decay and fall downe during the terme the Leassors vnlesse the tenant will reedifie the same house and imploy the said timber in the building thereof againe Though the felling of Willowes or other such like
then doe sue execution of the said Statute against the same Conusor 47. E. 3. 3. 45. E. 3. 17. 3. H. 4. 12. 31. E. 3. or any feoffée of any part of his land this is a great iniurie and oppression and therefore in this case the said Conusor or his feoffée is to bée relieued by an Audita querela If a statute be made acknowledged by one person to another and then committed in ouell maine to a straunger to bée deliuered to the Conusée vpon certaine conditions performed 12. H. 4. 13. 43. E. 3. 17. and after the same stranger doe deliuer the said Statute to the Conusée before the conditions performed whereupon he doth sue execution thereof against the Conusor this is a great wrong and oppression of the Conusor and therefore hée may haue an Audita querela vpon this matter in fact stay the the exeeution and thereby redresse this iniury If one person be bound to another by Statute or Recognisance for the paiment of a summe of money 45. E. 3. 17. 47. E. 3. 3. 9. H. 4. 5. 13. H. 7. 22. 16. El. Dyer 332. and after the Conusor doth make seuerall feoffements of seuerall parcels of his land to diuers persons and then the Statute or Recognisance is forfeited and the Conusée doth sue execution thereof against one of those feoffees onely this is a wrong and oppression of him for that al the land of the conusor which he had at the time of the said stat or recognisance acknowledged or at any time after ought to be charged and extended for the paiment of this debt to the intent the money might be the sooner paid and the execution more spéedily discharged And therefore the same feoffée whose land is so extended may haue an Audita querela or a Scire facias as the case requireth to defeat the execution against him Co. li. 3. 14. 23. Ed. 3. Execution 127. and thereby hee shal be restored to all the meane profits and to compell the conusée to sue execution of all the land which was the conusors at the time of the said Statute or Recognisance acknowledged or at any time after and so the land of euery terre-tenant shall bee equally charged and each person contributorie to the same extent in respect of his land If the conusor after a Statute or Recognisance acknowledged doe make many feoffements of seuerall parcels of his land to diuers persons and then all or any of those feoffées lands bee extended by force of the same Statute c. the partie or parties grieued by the same extent 9. H. 4. 5. may procure an Audita querela to cause the lands of the conusor to bée likewise extended for hée or they be wronged and oppressed by the said conusors former Act and meanes But on the other side if the land remaining in the hands of the conusor bée extended by the conusée by force of the said Statute or Recognisance the conusor cannot maintaine an Audita querela against his seoffées or any of them 23. Ed. 3. Fitz. Execution 127. 45. Ed. 3. 22. to cause their lands to be extended for hée is not vexed or oppressed by the same extent by any of their meanes nor for any of their debts but for his owne debt though in the case before rehearsed they bee troubled and oppressed for his debt for when any person doth become bound by Statute or Recognisance to another and after alieneth his land or any part thereof to a stranger the body of the conusor remaineth debtor to the conusee in respect of his acknowledgement and confession of the same made of record before a competent Iudge or officer thereunto lawfully assigned and the debt is his and the burden thereof is his and the land is onely chargeable in respect that it was in his hands at the time of the Statute or Recognisance acknowledged or after and so the conusors person and the land in his hands is onely chargeable in that case As in like case if a man doe become bound by Statute or Recognisance to another and after the conusée doth purchase parcell of the land of the conusor 11. H. 7. 4. 13. H. 7. 22 45. Ed. 3. 22 2. El. Dyer 193. Plo. Com. 72. and then the Statute is forfeited the conusée may extend the Statute take and imprison the bodie of the conusor and haue the residue of his land deliuered to him in execution and the conusor shall haue no remedie by Audita querela against the conusée for that the conusor is not wronged or oppressed by this extent seeing hée himselfe is the onely debtor of the conusée and his body lands and goods are liable to the payment of this debt and not the lands in the hands of the conusee And so it is if a man bée bound by Statute or Recognisance to another and after the conusée doe purchasse parcell of the land of the conusor and a stranger purchaseth another parcell of land of him and then the Statute is forfeited and the conusée doth sue execution of the land of that stranger the other purchaser that is a wrong and oppression and therefore the said straunger may sue an Audita querela against the said conusée 11. H. 7. 4. 13. H. 7. 22. Fitz. N.B. 105. and thereby discharge his land of execution for that the said conusée hath discharged this land by his own Act viz. by purchasing of parcell of the land charged for by the Statute or Recognisance acknowledged the whole land was charged and by purchasing of parcell by the conusée hée hath discharged the whole sauing that which remaineth in the hands of the Conusor If an Infant within the age of one and twentie yeares be bound by Statute or Recognisance and the Conusor will extend the same the Infant may pursue an Audita querela to auoid the same either during his minoritie if by inspection the Court shall adiudge him within age 6. Ed. 3. 39. 23. Ed. 3. Au. qu. 26. Fi. N.B. 104 or after he shall accomplish his full age for it was a wrong and oppression practised by the Conusée to abuse the tender age of the Infant and to vrge a Statute of him before the Law did enable him to acknowledge it And the like Law is if one person will acknowledge to another a Statute by Dures of imprisonment and then the Conusée doe sue execution of the same the Conusor may prosecute an Audita querela and auoyd the Statute for in this case the Conusée hath done to the Conusor a double wrong and oppression viz. first to imprison him and thereby to exact act a Statute of him and then contrarie to the warrant of Law to extend the same against him And as in the cases aforesaid so likewise in all other cases where any person hath iust and lawfull cause to seeke and haue reliefe by an Audita querela Fi. N.B. 104 20. Ed. 3. Au. qu. 27.
in the same cases either he is or is offered to bée oppressed and wronged And in all the same cases the oppressor endeauoureth to make the Lawe his colour and instrument to abuse him 11 Forestallers Ingrossers and Regrators deserue to bée reckoned amongest the number of Oppressors of the common good and publike wealth of the Realme for they doe endeauour to inrich themselues by the impouerishment of others and respect not how many doe lose so they may gaine They haue beene exclaimed vpon and condemned in Parliament from one generation to another as appeareth by the Statutes of Anno 51. H. 3. Anno 34. Ed. 1. Anno 25. Ed. 3. Anno 27. Ed. 3. Anno 28. Ed. 3. Anno 31. Ed. 3. Anno 42. Ed. 3. Anno 2. R. 2. Anno 6. R. 2. Anno 14. R. 2. Anno 25. H. 8. Anno 5. Ed. 6. Anno 5. El. but amongst the others specially forestallers St. 34. Ed. 1. for by the foresaid Statute of Anno 34. Ed. 1. it was ordained That no forestaller shall be suffered to dwell in any towne for hée is a manifest oppressor of the poore and a decayer of the rich a publike enemy of the countrey a Canker a Moth and a gnawing worme that daiely wasteth the common wealth And the acte and name of a Forestaller was so odious in that time that it was mooued in Parliament to haue had it established by Law That a Forestaller should bée baited out of the town where he dwelt by dogges and whipped forth with whippes But because in time it grewe in question who was to be accounted a Forestaller Oppression by forestallers ingrossers regrators who an Ingrosser and who a Regrator and what punishment former lawes had inflicted vpon them therefore to the intent that they and their offences might more certainely be laid open to the knowledge of the whole Realme and condigne punishment prouided for them St. 5 and 6. Ed. 6. 14. by a Statute made Anno 5. 6. E. 6. it was established Who is a forestaller That whatsoeuer person or persons shall buy or cause to be bought any marchandise victuall or other thing comming by land or water towards any faire or market to be sold in the same or cōming toward any city port hauen créeke or rode of this realm or Wales from any part beyond the sea to be sold or make any bargain cōtract or promise for the hauing or buying of the same or any part thereof so comming as aforesaid before the same marchandise victuals or other things shall be in the market faire citie port Hauen Créeke or Rode readie to be sold Or shall make any motion by word letter message or otherwise to any person or persons for the inhaunsing of the price or déere selling of any of the things aboue mentioned Or else disswade mooue or stirre any person comming to the Market or Faire to forbeare to bring any of the things aboue mentioned to any Faire or market citie port c. to be sold as aforesaid shal be adiudged a forestaller But by the statute of an̄ 13. El. it is ordained That the said Statute of an̄ 5. 6. Ed. 6. St. 13. El. 25. shall not extend to any wines oyles sugars spices currans or other forraine victuals brought from beyond the sea fish and salt onely except Whatsoeuer person or persons shall by any meanes regrate obtaine St. 5. and 6. Ed. 6. 14. or get into his or their hands Who is a regrator or possession in any faire or market any corne wine fish butter chéese candles tallow shéepe lambes calues swine pigges géese capons hennes chickins pigeons conies or other dead victuall whatsoeuer that shal be brought to any faire or market within this realme or Wales to be sold and doe sell the same againe in any faire or market holden or kept in the same place or in any other faire or market within iiij miles thereof shal be reputed and taken for a regrator or regrators Whatsoeuer person or persons that shall ingrosse St. 5. and 6. Ed. 6. 14. or get into his or their hands by buying Who is an ingrosser cōtracting or promise taking other than by demise grant or lease of land or tythe any corne growing in the fields or any other corne or graine butter chéese fish or other dead victuals whatsoeuer within the realm of England to the intent to sell the same againe shal be reputed and taken an vnlawfull engrosser or engrossers If any person or persons shall offend in any of the things before recited St. 5. and 6. Ed. 6. 14. and being thereof duely conuicted or attainted by the lawes of this realme The punishment of forestallers regrators and ingrossers or after the forme hereafter mentioned he or they shall for his or their first offence haue or suffer imprisonment by the space of two moneths without baile or mainprise and shall also lose and forfeit the value of the goods cattels and victuall so by him or them bought or had And if any person lawfully conuicted or attainted of or for any the offences abouesaid be thereof eftsoones lawfully conuicted or attainted then euery person or persons so offending shall haue suffer for his said second offence imprisonment by the space of one halfe yeare without baile or maineprise and shall lose the double value of all the goods cattels and victuall so by him bought or had as is aforesaid And if any person being lawfully twice conuicted or attainted of or for any of the said offences shal eftsoones offend the third time and be thereof lawfully conuicted or attainted then euery such person for the third offence shal be set on the pillorie in the city towne or place where he shall then dwell and inhabit and lose and forfeit all the goods and cattel that he or they haue to their owne vse and also be committed to prison there to remaine during the kings pleasure Prouided alwaies that the buying of any such barley bigge or oates St. 5. and 6. Ed. 6. 14. as any person or persons not forestalling shall conuert into mault Cases wherein regrating or ingrossing be tollerable or oatmeale in his or their owne house or houses or shall so be conuerted indeed or the buying of any such thing by any such Fishmonger Butcher or Poulter as concerne his or their owne facultie craft or mystery otherwise than by forestalling which shall sell the same againe vpon reasonable prices by retaile or the taking of any cattell corne graine butter chéese or any other thing aboue mentioned reserued without fraud or couin vpon any lease for terme of life or liues yeare or yeares heretofore made or hereafter to be made or the buying of any wine or other dead victuall aboue mentioned being apt and méete for mans sustenance by any Inholder or other victualler to sell the same by retaile within his house or to any of his neighbours for their sustenance for reasonable
was then further enacted Who shal take the othe for the Quéenes supreame gogouernment That all and euery Archbishop Bishop and all and euerie other Ecclesiasticall person and other Ecclesiasticall Officer and Minister of what estate dignitie preheminence or degrée soeuer he or they be or shall be and all and euerie temporall Iudge Iustice Maior and other lay and temporall Officer and Minister and euery other person hauing the Quéenes fées or wages within this Realme or any of her Dominions shall make take and receiue a corporall othe vpon the Euangelists before such person or persons as shall please the Quéene her heires or successors to assigne and name to accept and take the same othe And euery person that at any time shal be preferred promoted or collated to any Archbishopricke or Bishopricke or to any other Ecclesiasticall benefice promotion dignitie office or ministrie or that shall be by the Quéene her heirs or successors preferred to any temporall or lay office ministrie or seruice within any her Dominions before he shall take vpon him to receiue vse exercise supplie or occupie any such Archbishopricke Bishopricke promotion dignitie office c. shall receiue the same othe before such persons as shal haue authoritie to admit any such person to any such office c. or else before such person or persons as by the Quéene c. vnder the great Seale shall be assigned to minister the sayd othe And euerie person temporall suing liuerie or Ouster le maine out of the hands of the Quéene her heires or successors before his liuerie or Ouster le maine sued forth and allowed And euerie temporall person doing any homage to the Quéene her heires and successors or that shall bee receiued into seruice with her c. shall take the foresaid corporall othe before the Lord Chancellor or Kéeper of the great Seale or before such person or persons as by the Quéene c. shal be appointed to receiue the same And euery person taking orders and euery other person which shal be preferred to any degrée of learning in any Vniuersitie within this Realme or dominions before he shall receiue such orders or be preferred to such degrée of learning shall take the foresayd othe before his Ordinary Commissary Chancellor or Vicechancellor or their sufficient deputie in the said Vniuersitie And by another stat made an 5. Eliz. it was further enacted St. 5. El. 1. That all other persons which haue taken or shall take orders commonly called Ordines sacros or Ecclesiasticall orders or haue béen or shal be promoted preferred or admitted to any degrée of learning in any Vniuersitie within this Realme or dominions to the same belonging And all Schoolmasters and publique and priuat teachers of children as also all maner of person and persons that haue taken or hereafter shal take any degrée of learning in or at the common laws of this realm as well vtter-barresters benchers readers ancients in any house or houses of court and al principal Treasurers and such as be of the grand companie in euery Inne of Chancerie all Atturneies Prothonotories and Philozers towards the laws of this realme And all manner of Sherifes Escheators and Feodaries and all other person and persons which haue taken or shall take vpon him or them or haue béen or shall be admitteed to any Ministrie or Office in at or belonging to the common law or any other law or lawes of to or for the execution of them or any of them vsed or allowed or at any time hereafter to be vsed or allowed within this Realme or any the Dominions or Countries belonging or which hereafter shall happen to belong to the Crowne or dignitie of the same And all other Officers or Ministers of or towards any Court whatsoeuer and euerie of them shall take and pronounce a corporall othe vpon the Euangelists before hée or they shall bée admitted allowed or suffered to take vpon him or them to vse exercise supply or occupie any such vocation office degrée ministrie roome or seruice as is aforesaid and that in the open Court whereunto hée doth or shall serue and belong And if he or they doe not or shal not serue or belong to any ordinarie or open Court then hée or they shall take and pronounce the othe aforesaid in an opē place before a conuenient assembly to witnesse the same and before such person or persons as haue or shall haue authoritie by common vse or otherwise to admit or call any such person or persons as is aforesaid to any such Vocation Office Ministrie roome or seruice or else before such person or persons as by the Queene her heires or successors by commission vnder the great Seale of England shall be named or assigned to accept and take the same according to the tenor effect and forme hereafter following viz. I A. B. doe vtterly testifie and declare in my conscience The Othe that the Queenes Highnesse is the onely supreame gouernour of this Realme and of all other her Highnesse Dominions and Countries as well in all Spirituall or Ecclesiasticall things or causes as temporall And that no forreine Prince Person Prelate State or Potentate hath or ought to haue any iurisdiction power superioritie preheminence or authoritie Ecclesiasticall or Spirituall within this Realme And therefore I doe vtterly renounce and forsake all forreine iurisdictions powers superiorities and authorities and doe promise that from henceforth I shall beare faith and true allegiance to the Queens Highnesse her heirs lawful successours and to my power shall assist and defend all iurisdictions priuiledges preheminences and authorities graunted or belonging to the Quéenes Highnesse her heires and successors or vnited and annexed to the imperiall Crowne of this Realme So helpe me God and by the contents of this booke And by the foresayd Statute of Anno 5. Elizab. 1. it was further enacted That euerie Archbishop and Bishop within this Realme A Bishop may tender the Othe and the Dominions of the same shall haue authoritie to tender or minister the othe aforesaid to euerie or any Spirituall or Ecclesiasticall person within their proper Diocesse as well in places and iurisdictions exempt as not exempt And that the Lord Chauncelor The L. Chācellor may grant commissions to tender the Othe or Kéeper of the great Seale of England for the time béeing shall and may at all times hereafter by vertue of this Act without further warrant make and direct Commission and Commissions vnder the great Seale of England to any person or persons giuing them thereby authoritie to tender and minister the othe aforesaid to such person or persons as by the foresaid Commission or Commissions the sayd Commissioners shall bée authorised to tender the sayd othe vnto And moreouer it was enacted That if any person or persons appointed or compellable by this Act The penaltie for the first refusall of the Othe or by the foresaid Act made Anno 1. El. 1. to take the sayd othe
or if any person or persons to whom the sayd othe by any Commission or Commissions shall be limited or appointed to be tendered refuse to take or pronounce the said othe in manner and forme aforesaid that then the partie so refusing and being thereof lawfully indicted or presented within one yeare next after such refusall and conuicted or attainted at any time after according to the lawes of this Realme shall suffer and incurre the daungers penalties paines and forfeitures ordained and appointed by the Statute of Prouision and Praemunire made An. 16. R. 2. St. 16. R. 2. 5. And also if any of the persons aboue named and appointed by this Act to take the othe aforesaide doe after the space of thrée moneths next after the first tender thereof The second refusall of the Othe high Treason the second time refuse to take and pronounce or doe not take and pronounce the same in forme aforesaide to be tendered That then euerie such offendor and offendors for the same second offence and offences shall forfeit loose and suffer such like and the same paines forfeiture iudgement and execution as is vsed in cases of high treason No corruption of blood or forfeiture of dower But no attainder by force of this Act shall extend to make any corruption of blood the dis-heriting of any heire forfeiture of dower nor to the preiudice of the right or title of any person other than of the offendor during his her or their naturall liues onely c. But forasmuch as the Quéene is otherwise sufficiently assured of the faith and loyaltie of the Temporall Lordes of her high Court of Parliament Therefore this Act shall not extend to compell any temporall Lord of or aboue the degrée of a Baron of this Realme Temporall Lords discharged of the Othe to take or pronounce the Othe aforesaide nor to incurre anie penaltie limited by this Acte for not taking or refusing the same Prouided alwayes that no person shall be compelled by vertue of this Acte to take the Othe aboue mentioned at or vpon the second time of offering the same according to the forme appointed by this Statute except the same person hath béene is or shall bée an Ecclesiasticall person that had hath Who only shal take the Othe vpon the second tender or shall haue in the time of one of the Raignes of the Quéenes father brother or sister or in the time of the Quéenes Maiestie her heires or successors charge care or office in the Church Or such person or persons as had hath or heereafter shall haue any office or ministerie in any Ecclesiasticall Court of this Realme vnder any Archbishop or Bishop in any the times or raignes aforesaide Or such person or persons as shall wilfully refuse to obserued the orders and rites for diuine seruice that bee authorized to be vsed and obserued in the Church of England after that he or they shal be publikely by the Ordinary or some of his Officers for Ecclesiasticall causes admonished to kéepe and obserue the same Or such as shall openly and aduisedly depraue by wordes writings or any other open fact any of the rites and ceremonies at anie time vsed and authorized to be vsed in the Church of England Or that shall say or heare priuate Masse prohibited by the Lawes of the Realme And all such persons shall be compellable to take the Othe vpon the second tender or offer of the same and incurre the penalties for not taking the saide Othe and none other 16 Because diuers seditious and euill disposed people haue lately procured and obtained to themselues from the Bishoppe of Rome and his Sée diuers Bulles and Writings the effect whereof hath béene and is to absolue and reconcile all those that will be contented to forsake their due obedience to the Quéene and to yéelde and submit themselues to the vnlawfull and vsurped authoritie of the saide Bishoppe and his Sée and by colour of the saide Bulles and Writings haue by their lewd practises and perswasions so farre wrought that sundry simple and ignorant persons haue béene contented to be reconciled to the saide vsurped authoritie and and to take Absolution at the handes of the aforesaide subtile practisers whereby there hath growen disobedience in many to absent themselues from diuine seruice and thought themselues discharged from all allegeance to her Maiestie whereby vnnaturall Rebellion hath ensued For redresse whereof and to preuent great inconueniences that might ensue by a Statute made Anno 13. Elizab. 2. it was enacted St. 13. El. 2. That if any person or persons shall vse or put in vre in any place within this Realme Giuing or taking absolution by any bulles from Rome or any the Quéenes dominions any bull writing or instrument written or printed of absolution or reconciliation obtained from the Bishop of Rome or any his successors or from any other person or persons authorized or claiming authoritie by or from the said Bishoppe his predecessors or successors or Sée of Rome Or if any person or persons shall take vpon him or them by colour of any such bull writing instrument or authoritie to absolue or reconcile any person or persons or to graunt or promise to any person or persons within the Realme or any other the Queenes Dominions any such absolution or reconciliation by any speach preaching teaching writing or any other open déede Or if any person or persons within this Realme Obtaining of bulles from Rome or any the Quéenes Dominions shall willingly receiue and take any such absolution or reconciliation Or else if any person or persons haue obtained or gotten since the last day of the Parliament holden Anno 1. Elizab. or shall obtaine or get from the said Bishop of Rome or any his successors or Sée of Rome any manner of bull writing or instrument written or printed containing any thing matter or cause whatsoeuer or shall publish or by any waies or meanes put in vre any such bull writing or instrument Then all and euery such Act and Acts offence and offences shall be déemed and adiudged to be high treason and the offendor and offendors therein their procurers abettors and councellors to the fact and committing of the saide offence or offences shall be déemed and adiudged high traitors to the King and the Realme and being thereof lawfully indicted and attainted according to the course of the Lawes of this Realme shall suffer death and forfeit all their lands hereditaments c. and cattells as in cases of high treason by the Lawes of this Realme ought to be lost and forfeited c. All and euery ayders The forfeiâ—â—res of Ayâ—â—rs Mainâ—â—inors c. after the offence comforters or maintainers of any of the saide offendor or offendors after the committing of any of the saide actes or offences to the intent to set foorth vpholde or allow the dooing drexecution of the saide vsurped power iurisdiction or authoritie concerning the premisses or any part thereof
An. 38. H. 8. Bro. Treason 2. for ioyning the Armes of England before the Conquest and the Armes since to his owne Armes for some other offences Quaere within which words of the first rehearsed Statute of 25. E. 3. or of any other Statute at the time of his arraignment in force that offence was comprised and made Treason S. Triall by Peeres 2. ⧠Homicide HOmicide is a word compound and is deriued of these two words Bâ—acton de corona viz. hominis cedium and the most apt and proper definition thereof is when one man or moe men doe kill another man for if a man be killed by a dogge a beast or other thing it is not properly termed homicide The said homicide may be committed by seuerall meanes viz. by iustice Homicide by iustice as when a Iudge doth command or pronounce his sentence that a man attainted by course of law shal be put to death By necessitie Homicide by necessitie as when one man killeth an other with griefe and sorrowe of minde thereby to deliuer himselfe or that which is his or some other persons or things which he is bound to defend from further perill which he or they cannot otherwise escape By mischance By mischance as when a man casteth a stone at a bird or a beast or is in lopping or felling of a trée and another man passing by is slaine therewith without the foreknowledge and against the will of him who did the déede By will By will as when one man hath a will to fight with another and then doth kill him or some other that is in his company and doth take his part in that combate But of this Homicide by will there bée two sortes whereof the one is called Murder and that is By murder when one man vpon malice prepenced and forethought doth feloniously kill an other And the other is called Manslaughter or Chance medley and that is By manslaughter when two men fight together vpon a suddaine heat of blood without any malice precedent and one of them doth kill the other 2 If a man be adiudged by the court to be hanged Homicide by iustice and the Sherife is commanded by the Iudge to doe execution in that manner and he doth it accordingly this is Homicide by iustice But if the Sherife do behead him or cause him to be beheaded or by any other meanes to be put to death than according to the Iudgement M. 35. H. 6. 58. this is no Homicide by iustice but felonie in the Sherife The order of law not obserued in execution of Iustice for that he hath not obserued the order of the Law viz. the iudgement in putting the offendor to death And the same law is if one which is not Sherife or other officer thereunto lawfully deputed will put to death an offendor that is condemned to die vpon his owne authoritie for that is no Homicide by iustice but felonie in him who beeing not the Kings officer thereunto assigned hath killed one of the Kings Subiects without warrant of his law And therefore if the Iudge himselfe who gaue iudgement of death against an offendor shall after put the same offendor to death it is not iustifiable but beeing indited and arraigned thereof he must plead not guiltie And in this case the wife may haue an Appell of the death of her husband so put to death against the said Sherife or other person though the heire cannot haue an Appell of the death of his father so executed because his blood is corrupted by the Attainder 35. H. 6. 57. No man may kill him that is outlawed of felony or attainted in a Praemunire 3 If a man be attainted of felonie by Outlawrie it is Homicide by iustice for the Iudge before whom he is brought to command him to be put to death and for the sherife to sée executioÌ„ done of him according to the iudgement 2. Ass p. 3. 27. Ass p. 4. 35. H. 6. 58. viz. to hang him But it is felonie and not Homicide by iustice for any other man of his owne authoritie to kill him And for as much as it was doubtfull whether by the lawes of this realme there was any punishment for such as kill or slea any person or persons attainted in or vpon any Praemunire Therefore by a Statute made anÌ„ 5. El. 1. it was enacted St. 5. El. 1. That it shall not be lawfull to any person or persons to slea or kil any person or persons in any manner attainted or hereafter to be attainted of in or vpon any Praemunire by pretence reason or authoritie or force of any word or words thing or things contained or specified in any Statute or Law of Prouision and Praemunire or in any of them Any Law Statute Opinion or Exposition to the contrarie notwithstanding So that to kill any person attainted vpon a Praemunire is felonie and not Homicide by iustice Killing a felon that will not be arrested 4 A shirife a bayly 22. Ass p. 45 Fi. Cor. 261 or any other which hath warrant to arrest a man indicted of Felony may well iustifie the killing of him if he wil not suffer himselfe to be arrested but that he doth stand at his defence in such manner that the officer and his assistants cannot arrest him without killing of him And in this case the officer shal be discharged without the kings pardon for this is homicide by iustice done vpon him who refuseth to yéeld vnto and submit himselfe to the iustice of the Law And euery person as well he that hath no warrant as he that hath may apprehend a Felon and if he wil not yeeld to be arrested but stand to his defence or flie the pursuer may kill him without blame the arrest being for Felony and therein he shall commit homicide by iustice And by the statute of Anno 1. Killing of such as be vnlawfully assembled M. it is established That if any persons St. 1. M. 12. aboue the number of two shall vnlawfully assemble together to the intent with force armes to doe practise or put in vre any of the things in the said statute mentioned then it shall be lawfull to euery Iustice of peace and to euery Shirife Mayor Bailife and other head officer of any Citie or Towne corporat or to any other hauing the Kings commission or letters to raise assemble the Kings subiects in maner of warre to be arraied in such great number as he or they shall thinke méet or able to the intent by violence of strength to suppresse and take the said persons so vnlawfully assembled And if the said persons so vnlawfully assembled or any of theÌ„ shall fortune to be slaine maihemed or hurt in or about the repressing or taking of them then euery such Iustice mayor sherife c. and euery other person hauing authoritie as is aforesaid and euery person and
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
triall by battel in that case so doth it ratifie and confirme the euent and successe thereof to be iustifiable And the law depending vpon the iudgement of God who giueth victory according to the truth hath assigned either of theÌ„ to doe execution of iustice vpon the other as it hath assigned the Sherife to do execution of iustice vpon him that after verdict confession or outlawrie is condemned to die Homicide vpon necessitie 11 Homicide vpon necessitie as before is said is when one man killeth an other with griefe of mind and sorrow of heart and beeing enforced vnto it therby to deliuer him selfe or that which is his or some other persons that he is bound to defend from further petill which otherwise cannot be auoyded and this homicide is by law iustifiable As if one or diuers persons come to a mans house to burne his house Homicide in dâ—fence of his house from burning but he or they doe not burne it 26. As p. 23 if the owner of the house or any of his seruants doe shoote forth of the house Co. l. 5. 91. and kill the offendors or any of them this is homicide by necessitie in defence of his house and not felony Lex Alâ—re di And in like sort if one or more come to a mans house to rob him Homicide in defence of a man â—rom robbery and the owner or any of his seruants or company being with him in the house doe kill the offendors or any of them this is homicide by necessitie in defence of his goods and thereby iustifiable for a seruant may iustifie the killing of an other in defence of his masters person 21. H. 7. 39. or house if the offence can not be otherwise auoided And he may iustifie the killing of him who robbed and killed his Master 26. Ass p. 23 so that he doe it presently And if one doe attempt to robbe an other being out of his house and pursueth him to that end 26. As p. 32. the true man may kill the offendor and shall be discharged thereof without any forfeiture or suing of the Kings pardon And so shall he in the other former cases where anie doe attempt to burne or robbe a mans house for a mans house is his Castle out of which the Lawe will not compell him to flie 21. H. 7. 39. 12 Forasmuch as it was in question and doubt if any euill disposed person or persons doe attempt feloniously to robbe or murder any person or persons in or nigh any common high way cart way horse way or foote way or in their mansion messuages or dwelling places Or that feloniously do attempt to breake any dwelling house in the night time should happen being in their such felonious intent to be slaine by him or them whom the said euill doers should so attempt to robbe or murder or by any person or persons being in the dwelling house which the same euill doers shall attempt burglarily to breake by night if the saide person so happening in such cases to slay any person so attempting to commit such murder or burglarie should for the death of such euill disposed person forfeit and loose his goods and cattells for the same as any other person should doe that by chaunce medley should happen to kill any other person in his or their defence for the declaration of which ambiguitie and doubt by a Statute made Anno 24. St. 24. H. 8. 5 H. 8. it was enacted That if any person or persons shall be indicted or appealed for the death of any such euill disposed person or persons attempting to murder robbe No forfeiture for homicide vpon necessitie or burglarily to breake mansion houses as is aforesaide that the person or persons so indicted or appealed thereof and of the same by verdict so found and tried shall not forfeit or loose any lands tenements goods or cattells for the death of any such euill disposed person in such manner slaine but shall be thereof and for the same fully acquited and discharged in like maner as the same person or persons should be if he or they were lawfully acquited of the death of the said euill disposed person or persons 13 But if one man doe come in the day time to an other mans house Killing another in his owne defence in his owne house and doth make an assault vpon him in his owne house Fi. Cor. 305 and doth fight with him if the owner of the house doe slay the assailant in his owne defence the owner of the house shall forfeit his goods and be driuen to sue for the Kings pardon except that it be prooued and found that the assailant came also to robbe the other in his house 14 Homicide in a mans owne defence ought to be so great Necessitie ineuitable is requisite in homicide in his owne defence and vpon such necessitie that it must be estéemed to be ineuitable or otherwise it will not excuse for héere the killer of the man hath not to doe with a felon as in some of the former cases but with a lawfull and true man And it is not materiall whether the person that did kill or the person which was slaine did beginne the fray but the whole matter will consist vpon the ineuitable necessity without the which the killing is by no meanes excusable The definition of homicide in his owne defence And therefore the true definition of Homicide in his owne defence is when the assailant doth make a fray Fi. Cor. 284 286. 287. 297. or offer force to the defendant and doth strike him the defendant doth flée so far as he can for sauing of his life so that he is come to a straite beyond the which he cannot flie and the Assailant doth continue his assault whereupon the defendant doth strike the assailant and doth kill him this is homicide in his owne defence For if the defendant could haue auoyded the assailant and did not but when the assailant did strike him 43. Ass p. 31 he did strike him againe and killed him this is felonie in the defendant And though the defendant doth giue to the assailant diuers wounds yet that is not materiall if he flie to a straite before he doth giue him the mortall wound for the Law doth allowe that iustifiable which a man doth in defence of his owne person And yet in the case aforesaid if the defendant vpon malice prepenced doth strike another and theÌ„ flie to a wall or straite and the other doth pursue and strike him Fi. Cor. 387 and the defendant who fled doth kill the pursuer this is murder and not homicide in his owne defence for the malice prepenced was the ground and beginner of this homicide and not necessitie ineuitable Where in homicide in his owne defence goods shall be forfeit and where not 15 One man did strike another to the ground 44. Ass p. 17 and then
his life and safetie is oppressed therewith and dieth Or where two men doe run at Tilt Iust or fight at Barriers together by the Kings commandement and one of them doth kill another in these cases the like the offēces shal be adiudged as homicide by misaduēture P. 11. H. 7 33. But if a mā being in doing of an vnlawful act as casting of stones into a high way where men doe vsually passe or shooting of arrowes into a Market or other place whither men doe vsually resort or fighting at Barriers or running at Tilt or Iustes with others without the kings commandement P. 11. H. 7. 23 whereby a man is slaine in these last specified cases it is felonie at the least viz. manslaughter if it be not murder for the offendor beeing doing of an vnlawfull act by his owne will the law will construe his meaning and will therein by the successe of the act As if two men be fighting together and a third man commeth to part them he is slaine Fitz. Cor. 262. 22. Ass p. 71 by one of those two without any malice prepenced or euill intent in him that slue him this is murder in him that killed him and not Homicide by misaduenture because they both that fought together were doing of an vnlawfull act And if they both that did fight together 2. 3. P. M. Dyer 128. came thither with malice prepenced one intending to kill the other then is it murder in them both The like order in misaduenture as in his owne defence 20 The same order shal be obserued in the pleading verdict forfeiture and pardon of one which killeth another by misaduenture as shal be of him who slayeth another in his owne defence St. 6. Ed. 1. 9 And the before rehearsed Statute of Gloucester shall extend as well to the one as to the other Homicide by murder or manslaughter 21 Homicide by murder is when one man vpon malice prepenced doth kil another feloniously And because it should be certainly knowne to all persons which offences should be adiudged murder by a Statute made at Marlbridge Anno 52. H. 3. it was ordained St. 52. H. 3. 26. That murder from henceforth shall not be iudged before the Kings Iustices What is murder where it is foūd misfortune onely but murder shal be intended vpon them which bee feloniously slaine viz. with a premeditate and malitious mind Pl. com 261 And some doe define murder to be a secret killing of one man by another none being present nor none knowing thereof But if one man kill another vpon malice prepenced the law doth not respect whether he doe kill him secretly or openly or whether he that was slaine be an English man or other countrie man so that he liued vnder the Kings protection Neither doth the law regard who gaue the first blow for though he that was slaine did strike the first blowe yet if he were slaine vpon malice prepenced it shal be adiudged murder in him that killed him What is manslaughter And manslaughter otherwise called Chance medley is when two doe fight together vpon the suddaine Pl. com 261 without any malice precedent and one of them doth kill the other in which case the offendor shall haue his Clergie The name of murder 22 The name of murder is an old and auncient terme and it is the rather continued to make a difference betwéen Homicide committed by Chance medley and Homicide committed by malice prepenced And therefore if a man be indicted of murder Murder more grieuous than felonie a pardon of al felonies wil not excuse discharge him as it appeareth by the Statute of an̄ 13. R. 2. which hath ordained St. 13. R. 2. 1 Stat. 2. S. Pardon 5 That no charter of pardon shal be allowed before any Iustice for murder for the death of a man slaine by a wait assault or malice prepenced Treason or Rape of a woman vnlesse the same murder c. be specified in the same Charter For murder is a more grieuous and hatefull offence in the hearts and eares of men than other felonies be And yet if a Commission be granted to certaine persons to enquire of all felonies they may thereby take indictments of murder Kel fol. 91. though a pardon of all felonies will not auaile him who hath committed murder but that is in respect of the Statute aforesaid St. 1. E. 6. 12 23 By a Statute made Anno 1. Ed. 6. it was ordained Wilfull poysoning That all wilful killing by poysoning of any person or persons that at any time hereafter shall be committed or done shall be adiudged and taken wilfull murder of malice prepenced and that the offendors therein their aydors abettors procurers and councellours shall suffer death and forfeit in euery behalfe as in other cases of wilfull murder of malice prepenced 24 To the end that stabbing and killing men on the sodaine done by many inhumane and wicked persons in the time of their rage drunkennes hidden displeasure or other passion of minde may be from henceforth restrained thorough feare of due punishment to be inflicted on such cruell and bloodie malefactors who heretofore haue béene thereunto imboldened by presuming on the benefite of Clergie St. 1. Iac. 8. Therefore by a Statute made Anno 1. Iac. it was enacted That if any person or persons shall stabbe Stabbing to death wilfull murder or thrust anie person or persons that hath not then a weapon drawen or hath not then first stricken the partie which shall so stabbe or thrust so as the person or persons so stabbed or thrust shall die within the space of sixe moneths then next following although it cannot be prooued that the same was done of malice forethought yet the party so offending and being therof conuicted by verdict of xii men confession or otherwise according to the lawes of this realme shall be excluded from the benefite of his or their Cleargie and suffer death as in case of wilfull murder Prouided alwaies that this Act shall not extend to any person or persons which shall kil any person or persons se defendendo or by misfortune or in any other manner than as is aforesaide nor shall extend to any person or persons that in kéeping and preseruing the peace shall chaunce to commit manslaughter so as the said manslaughter be not committed wittingly willingly and of purpose vnder colour or pretence of kéeping of the peace nor shall extend to any person or persons which in chastising his childe or seruant shall besides his or their intents or purpose chance to commit manslaughter Co. l. 4. 40. 25 If vpon a fray made the Constable with others to assist him Constable or other is slaine in parting of a fray do come to part the fray and to preserue the peace and in doing of his office the Constable or any of his assistants shal be slaine this is wilfull
murder in him that slew him although the murderer did not know the party whom hée killed and although the fray was on the sodaine Because the Constable and his assistants came by authoritie warrant and commaund of the Lawe to kéepe the peace and auoide the danger which might ensue by the breach thereof And therefore the Lawe doth adiudge this murder and that the murderer had a prepenced malice in him to oppose himselfe against the Lawe and the iustice of the Realme And if the Shiriffe or any of his Bayliffes or Officers be killed in the execution of the Kings Processe or in doing their office The Shiriffe or his officer is slaine in execution of Processs◠this is murder And it is murder if a watchman be killed in watching and doing of his office for in those cases the Lawe doth construe the offence not onely as done to the person that is slaine but to the office of execution of iustice or the keeping of the peace which the law had imposed vpon him that was slaine and so the offender by killing of this man hath done as much as in him lieth to restraine the execution of iustice or to hinder the preseruation of the peace Murder and manslaughter committed in the death of one man 26 If a man goe with malice prepenced to fight with an other and to kill him and a third person séeing them fighting Plo. Com. 100. goeth on the suddaine without malice to take the part of him that went with his malice and to fight for him and then they two strike and kill the man that was by them assaulted This is wilfull murder in the first man which went with the malice prepenced to kill and but manslaughter and no murder in the other who went to take his friends part and had no malice prepenced to kill As if the master vpon malice prepenced doth lie in the way to assault and kill a man and taketh some of his seruants with him that hee doth not acquaint with this malitious intention and the master doth assault the same person who he did lie in waight for and doth fight with him and the seruants doe take their masters part and also fight with the partie assaulted and they altogether doe kill him This is willfull murder in the master and but manslaughter in the seruants for that in them there was no malice prepenced towardes the partie slaine But if the master had made his seruants priuie to his intention and they had gone with him and killed the other it should haue beene adiudged murder in the seruants also 27 If a man vpon malice prepenced do lie in waight to kill an other man Plo. Com. 101. and doth méet him A man bearing malice to one doth kill an other assaile and fight with him a third man being in the companie of him that is assailed doth fight and defend him In this case if the first man that made the assault doe kill the third man who tooke part and defended the second man that was assailed it is in him wilfull murder though at the first he did beare no malice to him that hee killed neyther knew him But when the first man did beare malice to the second man that hee first assaulted and ment to haue killed him and to haue put his intended malitious purpose in execution against him and slew one other who resisted his purpose the law doth construe it that he caried a malicious and reuenging mind against all those that did resist his wicked purpose And therefore as he slew one in the defence of an other so is his malicious and murdering minde and intention expounded to be transferred from the one to the other and he shal be adiudged a murderer as if he had killed the first man And the same lawe is if one man doe lie in waight in a place to kill an other man and a stranger doth come to the same place and he that doth lie and waite to kill mistaking the man doth kill that straunger thinking he had bin the same person which he did meane to kill This killing shal be adiudged wilfull murder for it is grounded vpon malice prepenced though it were not executed vpon him to whom he did beare the malice And therefore it shal be adiudged the like offence as if hee had slaine the same person that hee meant to haue killed And so it is if a man vpon malice prepenced doe shoote at one man with intent to kill him and his arrow or pellet doth kill an other man to whom he did beare no malice this shal be adiudged murder in him for in his act doing he intended murder and séeing he directed his arrow to kill one man and that slew another the offence shall be accounted in equall degrée as if had killed him whom he meant to haue slaine for the end of the fact shall be iudged by the beginning thereof and the later part shall taste of the first and the first part which was the shooting of the arrow or pellet was grounded vpon malice prepenced and a murdering minde and so the offence in Lawe shall be iudged wilfull murder Plow com 474 28 The husband did giue to his wife a rosted apple wherein hée had put poison with intent to poison and kill her and the wife not knowing the intent of her husband nor that the apple was poisoned deliuered the same apple in the presence of her husband to a yoong childe of their owne to eate who did eate of it and died thereof within few daies after Giuing poison to one another taketh it dieth This was adiudged wilfull murder in the husband for that he deliuered the poisoned apple with intent to kill one person and séeing by his act death did ensue although it was to another person than he meant to kill yet it shall be adiudged murder in him for he was the originall founder and only cause of this death and this murder should be vnpunished if he should not be punished therefore for the wife which deliuered the poisoned apple to her owne childe could not be guiltie of any offence for that she was ignorant of the mischiefe pretended But if one doe lay rats-bane or other venomed thing in a house or place with intent to kill rattes mice or other vermine and a man or woman doth eate of it and dieth thereof this is no murder or other felony in him that laied it for that he had no intent to hurt any man or woman M. 2. El. Di. 186 29 An aduouterer and a harlot being by him begotten with childe Two agréeing vppon a murder and one of them doth it did agrée that after the womans deliuery the childe should be killed whereupon the mother after her deliuerie perswaded the Midwife to kill the childe who did it accordingly viz. she cut the throat of it In this case the mother and midwife were adiudged principall murderers and the aduouterer
the value of eight pence 18. Ass p. 14 22. Ass p. 39 or ten pence c. and then that offence shall be taken for petit Larcenie onely and the offendor shall be punished by imprisonment or c. according to the Iustices discretion Taking away a Tauerners plate 4 If a Tauerner doe set a péece of siluer plate before his guest to drinke in and that guest carrieth away the péece of plate this is felonie in him P. 13. Ed. 4. 9 for he had not the possession of the same péece of plate but the vse thereof onely to drinke in for that time And the offendor did fraudulently take the plate away with intent to steale it without the knowledge of the owner thereof A man béeing lodged in an Inne did rise in the night 27. Ass p. 39 and carrie linnen and other goods of the Inne kéepers out of his chamber where hée was lodged into the hall with intent to steale them and then went to the stable to séeke his horse and the Ostler tooke him therewith this was adiudged felonie and yet the goods were not carried out of the house of the owner of them but taken out of the place where he had assigned theÌ„ to be And so it is if a man do take vp another mans horse in his close with intent to steale him and the owner or some other doth apprehend the partie with the horse before hee is gone out of the close this is felonie A seruant hauing the vse of his masters goods doth steale them 5 If a man commit money to his seruant to kéepe or plate to his Butler 21. H. 4. 14. 3. H. 7. 12. 13. Ed. 4. 10. or vessell to his Cooke to be vsed in his house or a horse to his Horsekéeper to be kept and dressed or shéepe to his Shepheard to be followed and pastured and the seruant who hath the same thus committed vnto him doth goe away with them this is felonie by the common law in that seruant for these goods were alwayes in the Masters possession and kept and vsed to the Masters benefit But if a man deliuer a horse to his seruant to ride to the Market or money to carrie to a Faire or to pay to another or to buy cattell or other things and the seruant doth go away therewith this is not felony for the Master deliuered the same to his seruant and therefore he came lawfully by the possession of it See Felonie by stat 12. One hauing the key of a chamber doth steale the goods 6 If a man deliuer to his seruant or another the key of his chamber doore 13. Ed. 4. 9 and he to whome the key is deliuered taketh away the goods in the chamber aboue the value of xij d. this is felonie in him for the goods were not deliuered but did alwayes remaine in the possession of the owner of them A bargaine with a carrier and not a deliuerie of goods 7 If a man do bargaine with a carrier or other 13. Ed. 4. 9. to carry certaine bales of wares or other goods to a place prefixed and he taketh them and carrieth them to another place and openeth the bales and taketh forth the goods within them feloniously and conuerteth them to his owne vse this is felony in him for that this is more than a deliuerie viz. it is a bargaine so that he receiueth theÌ„ by the bargaine agréed vpon and not by the deliuerie the which bargaine he hath not performed but hath taken the goods of his own wrong and in this case the propertie of these goods did alwayes remaine in the first owner or deliuerer A carrier stealeth the goods committed 8 If one man do deliuer goods to another to carrie to a place appointed 13. Ed. 4. 10. and he doth carrie them thither and then he doth take and steale them away this is felonie in him for the priuitie of the bailement and the carriers possession was determined when he had carried them to the place appointed and therefore what he did after was feloniously done and of his owne wrong 13. E. 4. 9 9 If one man doe deliuer a Tunne of Wine to another A Carrier stealing part of his charge to carry to a place agréed vpon if the Carrier sell or giue away the same whole Tunne of wine it is no Felony for it was deliuered vnto him but if he take out twenty gallons or other quantitie aboue the value of twelue pence or c. then it is Felony 7. H. 6. 45 13. E. 4 10 5. H. 7. 18 10 If a man deliuer goods to another man to keepe Felony for taking of his owne goods after the owner who deliuered them doth take them away feloniously to the intent to recouer damages against the party to whom they were deliuered by an actioÌ„ of Detinue this is Felony in him that deliuered those goods yet the property of the goods was alwaies in him that did steale them 7. Ed. 4. 14 9. Ed. 4. 33 11 It is felony to steale the goods of a Church or Chappell The goods of a Church or Corporation or the goods of a Deane Chapter Colledge or other corporation or the goods of a corporation during the time of the vacation of the gouernour thereof and the indiâ—tment shal be Quod bona domus ecclesiae c. 27. Ass p. 40 12 If a wife doe steale goods by the compulsion of her husband In what case a maried wife may commit felony in what not this is not felony in her and likewise it is if she do it by the commaundement of her husband Fit cor 160 and if the husband and wife together do steale goods this shal be takeÌ„ the only act of the husband and not felony in the wife But a woman alone by her selfe her husband not being priuy thereunto may commit felony and may be principall or accessary Fit cor 383 as if a married wife steale goods or receiue Felons or stolne goods into her house knowing them so to be or lock them vp in her chest or closet her husband not knowing thereof Canuti lex 74. Or if her husband as soone as he knoweth thereof refuseth her company and his own house and maketh his abode elsewhere in which case the wiues offence shal not be imputed to her husband or otherwise the law will impute the fault to him and not to her for if the husband do commit felony Britton and the wife knowing thereof do receiue him and kéepe him company Bracton de coronÌ„ c. 32 she is not therby accessary to the felony for a wife caÌ„not be accessary to her husband for that by the law of God she ought not to discouer him or his counsell Inâ— leges 58 which law was first established by Inas Inae lex King of the West Saxons As the husband wife stealing together the
the rauishment of women Rauishment of a woman therefore by the stat of West 2. St. 13. E. 1. 33 it was enacted That if any man from henceforth rauish any woman maried maid or other woman where she doth not consent neither before nor after he shall haue iudgement of life of member and likewise where a man rauisheth a woman married lady damsell or other with force although she consent afterward he shal haue such iudgement as before is said if he be attainted at the K. suit for the K. shall haue the suit Abusing a woman vnder x. yeres of age 3 By a stat made An. 18. El. it was ordained St. 18. El. 6 That if any person shall vnlawfully carnally know abuse any woman child vnder the age of x. yeares euery such vnlawfull carnall knowledge shal be felony the offendor thereof being duly conuicted shall suffer as a felon without allowance of clergy The forf for consenting to a rape 4 By a statute made An. 6. R. 2. 6. it was ordained St. 6. R. 2. 6. That wheresoeuer and whensoeuer ladies daughters and other women be rauished and after such rape do consent to such rauishers that as wel the rauishers as they that be rauished euery of them be froÌ„ henceforth disabled by the same déed vnabled to haue or challenge heritage dower or ioint feoffemeÌ„t after the death of their husbands and auncestors and that incontinently in this case the next of the blood of those rauishers or of them that be rauished to whom such heritage dower or ioint feoffemeÌ„t ought to reuert remaine or fall after the death of the rauisher or of her that is so rauished shall haue title incontinently that is to say after the rape to enter vpon the rauisher or her that is rauished and their assignes and land tenants in the same heritage dower or ioynt feoffement and the same to hold in a state of heritage and that the husbands of such women if they haue husbands or if they haue no husbands in life that then the fathers or other next of their bloud haue from henceforth the suit to pursue and may sue against the same offendors and rauishors in this behalfe And to haue them thereof conuict of life and of member although the same women after such rape do consent to the said rauishers And further it is accorded that the def in this case shall not be receiued to wage battell but that the truth of the matter be thereof tried by inquisition of the countrey sauing alwayes to our soueraign lord the K. and to other lords of the said realme al their escheats of the said rauishers if peraduenture they be thereof conuict A woman rauished conâ—eiued with child By the opinion of Britton Britton if a woman at the time of the supposed rape doe conceiue with child by the rauisher this is no rape because a woman cannot conceiue with child if she doe not consent It is a good plea in an appeale of Rape to say that before the rauishment supposed Bracton he kept and vsed the plaintife as a Concubine Or to plead A Concubine that though he lay with her yet he did not carnally know her for that is the force of the declaration in an appeale of Rape T. 9. E. 4. 26 If a man shal be charged with a Rape by the way of indictmeÌ„t or otherwise he ought to be charged expressely by this word Rapuit and not by any other words This word Rapuit necessary in an indictment notwithstanding they doe amount to as much as this word Rapuit doth as carnaliter cognouit or such like S. Appeales 81. 85. St. 3. H. 7. 2 5 By a statute made Anno 3. H. 7. it is ordained Taking a woman against her will That if any person or persons shall take any maid widdow or wife which hath any lands or goods or is heire apparant to her auncestor against her will vnlawfully such taking procuring and abbetting to the same and also receiuing wittingly the same woman so taken against her will and knowing the same shal be felony and such misdoers takers and procurers to the same and receiuers knowing the offence in forme aforesaid shal be reputed and iudged as principal felons But this act doth not extend to any person taking any woman onely clayming her as his ward or bondwoman St. 39. El. 9. And by a statute made An. 39. El. it was enacted That all and euery such person persons as shall be conuicted or attainted for any offence made felony by the said act of 3. H. 7. or which shal be indicted or arraigned of or for any such offence and stand mute or make no direct answer or challenge peremptorily aboue the number of twenty shal in euery such case loose his and their benefit of clergy No Clergy allowed and shall suffer paines of death without clergy any former law c. notwithstanding Prouided alwaies That this act shall not extend to take away the benefit of Clergy but onely from such person and persons as hereafter shal be principals or procurers or accessaries before such offence committed St. 8. El. 3. 6 By a statute made AnnÌ„ 8. El. it was enacted Transporting of shéepe That no person or persons shall bring deliuer send receiue or take or procure to bee brought deliuered sent or receiued into any shippe or bottome any Rammes Shéepe or Lambes or any other kind of Sheepe being aliue to be conueyed out of any of the Quéenes dominions vpon paine that euery such person his aidors abbettors procurors and comforters shall for his first offence forfeit all his goods for euer to the Quéene and Informer that will sue for them in any Court of Record wherein no W. E. P. c. And further euery such offendor shall suffer imprisonment one whole yeare without baile or mainprise and at the yeares end shall in some market Towne in the fulnesse of the Market on the Market day haue his left hand cut off and that to be nailed vpon the openest place of such Market The second offence felony And euery person eftsoones offending against this statute shal be iudged a felon and shal suffer death as in cases of felony But this act shall not extend to any corruption of blood or be preiudiciall to any women claiming dower by or from any such offendor And the Iustices of Oyer Determiner Iust of Gaole deliuery and I. of P. in euery Countie and Shire within this Realme of England and Wales and other the Qu. Dominions shall haue full power and authoritie by vertue of this Act to enquire of euery offendor and offendors contrary to the forme and effect of this act and to heare and determine euery offence and offences committed done contrary to the forme and effect of the same according to the course of the laws of this Realme 7 For as much as
neither principall nor accessorie Fitz. Cor. 395. 14. H. 7. 31. for it is no felonie in him but finable as a Trespasse And some do hold that he shal be but amerced in that case and if he be within age hee shall haue no punishment 25. Ed. 4. 44 13. H. 7. 10. 7 If one man doe hold another in his armes or doe bind him Holding a maÌ„ vntill he be slaine vntill a thirdman hath killed him hée that did hold the partie slaine in his armes is principall But that holding in his armes must bee proued to bee done of a wicked and felonious intent Bracton for sometimes a man holdeth his friend in his armes of a louing mind to kéepe him from taking or doing of hurt and vpon no malicious or euill intent One thing commanded another effected 8 If one commaund another to lay hold vpon a third man and the party commaunded goeth and robbeth him if the commaunder be absent when this Robberie is done this is not Felony in him for the party to whom the commaundement was giuen excéedeth his commaundement and also the commaundement might haue béene performed without the Robberie But otherwise it is if the commaundement were to beat him Fitz. Cor. 314. and the party commaunded did kill him in the commaunders absence in this case he is accessory to the felony for it is hard to beat a man so that he shall be sure that he shall not die of that beating Councelling to rob one and another is killed 9 If A. doe commaund B. to robbe C. and hee attempteth to robbe him and D. doth defend C. and fighteth with B. that assayleth him Plo. Com. 475. and B. doth kill D. in this case A. shall bee accessorie to this murther for that B. attempting to robbe C. doth pursue the commaundement of A. and so being in the pursuit of that commaundement and resisted another thing doth chaunce viz. the death of D. therefore A. shall bee partaker of that fact and of the punisâ—ment thereof for that his commaundement was the cause thereof Commanding to beat one and hée is killed And the same Law is Fitz. Cor. 314. 350. Pl. Com. 474. if A. doe commaund to beat C. and he doth beat him so that hee dyeth thereof A. shall bee accessorie to this murther For his commaundement was the foundation of this murther and the murther is the sequele of the commaundement and if A. be present at this beating Commaundement of burning one house and another is burned then he shall be adiudged principall And so it is if A. doe commaund B. feloniously to burne the house of C. in the night and he doth it and the same fire doth also burne the house of D. neighbour to C. in this case A. shall be accessorie as well to the burning of the house of D. as of C. for séeing the burning of the house of D. doth ensue vpon the burning of the house of C. and the first house was burned by the commaundement of A. whereunto A. was accessorie he must also be accessorie to the burning of the second house viz. of the house of D. for he that commaundeth an euill and vnlawfull act to be done shall be adiudged accessorie to all that shall ensue vpon the same euill act but not to any other distinct thing Counsell of one act and another is done But it is otherwise Pl. Com. 475. where A. doth commaund B. to burne the house of C. whom hee knoweth and hee doth burne the house of D. or doth commaund him to steale a Horse and he stealeth an Oxe or doth commaund him to steale a white Horse and hée stealeth a blacke Horse or doth commaund him to robbe another by the high way of his money and he doth rob him in his house of his plate this doth differ from the commaundement of A. and therefore these acts cannot bée drawne within the compasse of his commaundements and so hée shall bée adiudged no Accessorie to any of the foresaid offences for these bee other acts and other felonies and not any of those which A. did commaund or counsell to bée done The felonie commanded committed in another maner And yet if B. shall commit the same felonie which A. doth commaund or counsell to bée done though he doth it at another day at another time with another instrument or in another sort than A. doth commaund or counsell him to doe it A. shall bee accessorie thereunto As if A. doe counsell B. to kill C. by poysoning of him and hee doth kill him with his dagger or doth counsell him to kill C. by the high way and he killeth him in his house or doth counsell him to kill him vpon one day and he killeth him vpon another day in all these cases and the like A. shall bée accessorie to the murder for the murder is the substance and principall matter that doth ensue vpon the commandement or counsell of A. which the law doth wholly respect and not the circumstances being onely the maner and forme of the facts Pl. Com. 476. 10 If A. do commaund or counsel B. to kill C. and before he hath killed him A. doth repent him and commeth vnto B. and telleth him The felonie commaunded countermaunded that hee is sorie for his wicked counsell and persuadeth and chargeth B. that he shall not kill C. and yet after that B. doth kill C. in this case A. shall not be adiudged accessorie to the death of C. but it is the onely murder and act of B. because A. did countermaund his first counsell And the law doth adiudge no man accessorie to a Felonie before the Felonie committed but him onely whose mind and meaning is that the Felonie should bée committed at that time that it is done Pl. Com. 475. 11 If A. doe procure and counsell B. to poyson C. and to that end doth buy some venim or poyson and deliuereth it to B. who tempereth it in an apple Counselling to poison one and another is poisoned or other thing and deliuereth it to C. with intent to poison him and C. not knowing the poyson in the apple nor the intention of the said B. doth giue the sayd apple to E. to eat who eateth it and is poysoned therby and dyeth of the same poyson within few dayes after In this case notwithstanding this bée wilful murder in B. that deliuered the poysoned apple to C. though it poysoned not him who hée meant to haue poysoned but E. a straunger to whom hee pretended no hurt yet A. who procured and counselled B. to giue this poyson to C. is not accessorie to the murder of E. for that he neuer persuaded nor gaue his counsell that E. should be poisoned which assent of his the law will neuer straine further than he gaue it 12 As commaundement and ayde is in Murder and Homicide Commanding or aiding to Rape or Robberie so is it in euerie other
attainted by Outlawrie to whom he is appealed or indicted as accessorie without hauing regard to the residue 41 To haue Processe awarded against the Enquest for the triall of the accessorie it is requisite that the attainder of the principall be in the same sute The attainder must be in the same sute in the which he and the accessorie be sued for if he be attainted in another sute that shall not enforce the accessorie to procéede with his Enquest vntill the principall which is sued with him doth appéere or be attainted by processe of outlawrie c. As in appeale of homicide against the principall and accessorie 7. H. 4. 36 and the principall before that time is attainted of the death of the same man vpon an indictment at the Kings sute And the accessory shall pleade for his owne discharge the acquitall of the principall in an other sute so that it be an acquitall for that offence for the which he is charged as accessorie 7. H. 4. 27 42 If the principall be attainted of the death of a man and then dieth The principall attainted and dieth and the Iustices before whom the accessorie is sued haue the record of the same attainder before them then they may procéede against the accessorie otherwise not for it doth by the Record appéere vnto them that hée which was appealed of the fact is by Lawe attainted of felonie according to the foresaid Statute of Westminster 1. though he was not executed therefore The principall standeth mute 43 And though the Lawe be Fit Cor. 58 that an Enquest shall not procéede against the accessorie to trie him vntill the principall doe appeare or be attainted by outlawrie yet if the principall doe appeare and will say nothing but stand mute the accessorie shall be arraigned Sed quaere for the principall is not attainted of felonie Error in the Attainder of the principall 44 If the Attainder of the principall be erronious 2. R. 3. 22. yet the accessorie shall be arraigned for the accessory shall take no aduantage of any errour committed in the attainder of the principall An absured accessorie returneth 45 If one do abiure as accessory and after doth returne againe Fi. Cor. 124 the principall not being attainted the accessorie shall be hanged for that he hath confessed the felonie before the Coroner and did returne without the Kings pardon or licence The accessory tried vpon his owne request 46 If the accessory of his owne desire wil wage battel before the principal be attainted and be subdued therein Fit Cor. 12 or will desire to haue an Enquest to try him before the principall be attainted and be found guiltie therefore In both these Cases he shall be hanged though by the Lawe he was not compellable to either of the said trialles vntill the principall had béene attainted for hée hath aduentured his life in hope to gaine his libertie 47 If the principall be found not guilty The principall found not guiltie by verdict Bracton the accessorie shall be discharged thereby for where there is no déeâ—e there can no force ayde or commaundement hurt in that the intended iniury tooke no effect So that the acquitall of the principall is in Lawe the acquitall of the accessorie The principall dieth in prison before attainder 48 If the principall can not be tried as if he die in prison before he be attainted of the felonie the accessorie shall be thereby discharged for there can none be found accessorie to a felonie Co. l. 4. 43 where there is none attainted to commit the same felonie But otherwise it is if the principall be attainted of the felonie and dieth there the accessorie shall be arraigned and hanged if he be found guiltie The principall attainted of an other felonie 49 If the principall be attainted of another felonie and hanged Fi. Cor. 378. before he is attainted of this felonie whereof he and the accessorie be indicted the accessorie to this felonie shall be discharged thereby And the same Lawe is if hee be attainted of the first felonie though he be not hanged because in that case after attainder he shall not answer to other felonies but onely to robberie and treason The principall slew the paâ—tie in his owne defence 50 If it be found by verdict that the principall slew him Fi. Cor. 116 of whose death he is arraigned in his owne defence the accessory shal be therby discharged And yet the principall shall be enforced to purchase his pardon But this pardon prooueth not that he is guilty in other maner than in his owne defence Notwithstanding in an other pardon it is otherwise for if a principall pleade his pardon to a felony generally without any special matter found which should cause the pardon 2. Ed. 3. 27 Fi. Cor. 260 3. Ass p. 14 42. Ass p. 16 and is by that discharged yet that will not discharge the Accessorie but he shall be hanged if he be found guiltie of the felonie for by that pardon the felony is confessed of the which felonie he praieth to be discharged by the Kings fauour and not by the benefit of lawe as he doth in the other case 3. H. 7. 12 10. H. 4. 5 13. Ed. 4. 3 Bro. Cor. 184 51 And in the like case and vpon the same reason The principall hath his clergie if the principall and accessorie be arraigned of felonie and both be found guilty and the principall doth pray and hath the benefit of his clergie yet the accessorie shal be hanged for by the praying of his clergie the felonie is confessed and the principall in this case is not saued by his innocencie but by a priuiledge in Lawe which the accessorie being no clarke cannot take the benefit of But it is otherwise if there be principall and accessorie and the principall is pardoned or hath his Clergie before iudgement Co. l. 4. 43 the accessorie shall not be arraigned for where there is no fact there is no force and where there is no principall The principall is pardoned or hath his clergie before iudgemeÌ„t there can be no accessorie and no man can be accompted principall before it be so prooued and adiudged by the Lawe and that must be by a iudgement vpon a verdict confession or outlawrie and it is not sufficient that indéed there be a principall vntil that appéereth by a iudgemeÌ„t in Law And the acceptance of pardon or the praying of his clergy is an argumeÌ„t but no iudgement in law that he is guiltie But if the principal after attainder be pardoned or hath his clergie alowed the accessory shal be arraigned and hanged if he be found guiltie for it doth appeare iudicially that he was principall 41. As p. 24 52 The acquitall of the principall is the acquitall of the accessorie as is asaide if it be not in an appeale where the accessorie is to recouer
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
should haue béene attainted of the felonie for the which he was imprisoned so that he were in prison for felonie at the time of breaking of prisō for a stranger which did rescue one that was indited of felonie was indited arraigned and found guiltie thereof presently before the principall felonie tried Imprisoned for Treason 12 If a man imprisoned for felonie doth breake the prison 1. H. 6. 5. S. Treason 9. and let escape a prisoner that is in prison for treason this is petit treason in him that did breake the prison Disobeying of a warrant 13 By a Statute made an̄ 1. H. 7. it is ordained St. 1. H. 7. 7. That it shal be felony for any person which should bee arrested to disobey or make rescue to any person hauing warrant to arrest a hunter in the night in any forrest parke c. or with painted faces c. so that execution of the same warrant be not had S. Felonies by Statute 30. Confession before a Coroner 14 The confession of breaking of prison before the Coroner is an attainder in it selfe without any more if the cause of the imprisonment be for felonie 25. E. 3. 42. Fitz. Cor. 243. 435. Opening the prison but not escaping 15 If a man come to a prison and setteth open the prison doore Kel fol. 87 persuadeth the prisoners which be in the Gaole to come forth of prison to depart yet if the prisoners doe not come forth and escape this is no felony in him or them but if any of the prisoners doe escape then is it felonie in him or them that did escape and in him also that set open the doore 30. H. 8. Dyer 44. And a man is alwaies said to bée in prison so long as he is within sight of the Gaoler or of him that hath him in custodie though he doe escape or breake away ⧠Escape THere be two kinds of escape viz. voluntarie and negligent Voluntarie escape Voluntarie escape is when one doth arrest another for felonie or other offence and after letteth him goe at libertie whither he will this letting him goe at libertie is a voluntarie escape Inaelex 36. And if the arrest of him which did escape was for felonie it shal be adiudged felony in him which did let him escape And if it were for treason then it shal be adiudged treason But it is not materiall whether he that escaped was arrested by him that set him at libertie or by some other so that he were arrested for without arrest it shall not be accounted an escape 17. Ass p. 9. If a felon be in a house and another not seeing him being in the stréet doth call to him and telleth him that he doth attach him but doth not arrest his person this is no arrest ◠H. 4. 1. 2 If a man receiue a felon Escape of an offendor not arrested knowing of the felonie which he hath committed and willingly suffer him to escape this suffering the felons escape is not felonie in him that receiued the offendor because he did not arrest him S. Principall c. 17. 18. 11. H. 4. 4. 3 Also such an escape is not felonie if it were not felonie at the time of the escape Felonie at the time of the escape made for notwithstanding that the first act for the which the partie was arrested is after become felonie yet that shall not make the escape felony which was not felonie at the time of the escape As if A. doe strike B. whereupon the Constables doe arrest A. and willingly suffer him to escape and after B. dieth of that stroake this is not felonie for that B. beeing liuing at the time of the arrest and escape of A it was then no felonie in A. But yet in this case the partie which arrested the offendor shall pay to the King a fine to the value of his goods because the escape was voluntarie and vpon an hainous offence before committed for the law hath alwaies so much endeauoured to represse and punish felons that if one man doe kill another and a third man is present at the same time Fi. Cor. 293 331. 395. but of no confederacie with the manqueller yet if he beeing of full age doe not his best endeauour to apprehend the same felon he shal be imprisoned vntill he hath made fiue to the king therefore 4 Negligent escape Negligent escape is when one is arrested for felonie and after doth escape against the will of him that arrested him and is not freshly pursued and taken againe before the pursuer shall loose the sight of him this shal be adiudged a negligent escape Fi. Cor. 236 400. notwithstanding that he out of whose possession hee escaped did take him againe after he lost the sight of him Killing him that escapeth 5 It is a negligent escape if the pursuer doe kill the partie which escaped in the pursuit of him as he is carrying him to the Gaole Fit cor 328 346 though he did neuer loose the sight of him for by this meanes the partie that escaped cannot bee attainted of felonie and so the king shall loose his Escheates Taking againe the partie escaping 6 Vpon fresh suit the Gaoler may take againe the prisoner which escaped seauen yeares after the escape made 13. E. 4. 9. 14. H. 7. 1 Fi. N. B. 130 notwithstanding that in the meane time he lose the sight of him but that will not discharge the Gaoler of his fine for the same escape And if the sherife be in carrying one that is condemned to die to the place of execution and the prisoner be rescued and taken from him by force 6. H. 7. 12 the Sherife doth againe take away the prisoner from those that did rescue him and hang him this shall not be adiudged an escape in the Sherife Licence to go to another towne 7 If a Gaoler licence his prisoner to goe to another towne Pitz. Cor. 242. and to come againe this is a negligent escape because the prisoner in this case was found out of the bounds of the prison License to go into the same towne 8 If a Gaoler giue leaue to his prisoner to goe into the same towne Fi. Cor. 431 and to come againe and he wandreth into another town out of his prescribed limits and is there found wandring with an intent to escape this is a negligent escape in the Gaoler 9 If one which by the law is not mainpernable be let to maineprise Mainprise 25. Ed. 3. 39 that shal be adiudged a negligent escape in him who did let him to mainprise Petit larceny 10 As an escape may be of one that is imprisoned or arrested for felonie Fi. Cor. 430 431 so it may be of him that is arrested or in prison for petit Larcenie But not of any that is arrested or imprisoned for
trespasse Escape by returne of Cepi Corpus 11 A Capias was awarded to the Sherife to arrest one of felonie 40. As p. 42 and hee thereupon did returne Cepi Corpus and at the day had not the bodie vpon this matter of Record it was adiudged an escape in the Sherife and he was amerced a hundred shillings 12 If an offendor be in prison at the suit of one man and then at anothers 26. Ass p. 52 or of diuers men and he doth escape this shal be adiudged but one escape and the Gaoler shal be charged but with one escape But if one that is arrested for felonie doe escape Fi. Cor. 422 and flie to the Church and after escapeth out of the Church Double escape these shal be adiudged two escapes viz. one from the prison and another from the Church And the Gaoler or other who suffereth him to escape shal be charged with the first of those Escapes and the towne wherein the Church is with the last of them St. 3. H. 7. 1. 4. El. Dyer 110. Fitz. Cor. 238. 293. 13 There be certaine cases wherein an escape shall be adiudged Escape without arrest though there was no arrest before as if one be murdred or slaine in a towne in the day time and the murderer doe escape without béeing taken or arrested by those of the towne in this case those of the towne shal be charged with this escape that is to say they shal be amerced for it and though the escape be at the euening And by the Statute of Winchester viz. of 13. Ed. 1. St. 13. Ed. 1. 1. 2. If a man be robbed and the felon doth escape and be not taken within sixe moneth the towne or hundred shall answer the partie robbed that made huy and crie for the robberie and the dammages Fi. Cor. 302 14 If one doe kill another by misaduenture or in his own defence Who shal be charged with an escape and doe escape the towne where he was slaine shal be amerced for it though the offendor was not arrested for the people of the town doe see a man slaine but they are not to iudge whether it be felonie or not and therefore they ought to haue apprehended the manqueller 15 As the law is of a towne not walled in or inclosed Escape in a towne walled touching a murder committed in the day so is it of a citie or towne inclosed of a murder committed in the night for if in a towne inclosed one be murdered be it done by day or night Fi. Cor. 299. if in that case the murderer doe escape the towne or citie inclosed shal be amerced because the citie or towne inclosed ought by the Statute of Winchester to be kept fast locked from the Sunne setting to the Sunne rising Fi. Cor. 352. 425. 16 If a felon doe flie to a Church and before abiuration he doth escape Flying to a Church and escaping in this case the towne where the Church is shal be charged with this escape viz. they shal be amerced for it But this must be before abiuration for if hee doe escape after abiuration the towne shall not be charged therewith for that by the abiuration he is in law attained 17 And so it is if a felon take a Church which by the law cannot make abiuration Escaping by making abiuration in this case if he flie from thence the towne shall not be charged with an escape As if a man that is adiudged to be hanged doth escape from the sherife 27. Ass p. 54 Fi. Cor. 313 335 9. E. 4. 28. when he is in carrying him to the gallowes and doth take a Church and then escape the towne where the Church is shall not be amerced for this escape for that in this case he cannot make an abiuration which is an attainder in it selfe beeing attainted before 18 And so it is to be noted that a city borough Escape before or after arrest or town may be charged which the escape of an offendor which hath committed murder or homicide thogh he were not arrested But one two or more priuat persons cannot be charged with the escape of an offendor vntill he be arrested Where the Sherife and where the towne charged 19 If the Sherifes bailife doe arrest one for felonie in a town and do carry him towards the prison and certaine persons of the towne doe go with the bailife to assist him the felon escapeth by the way Fi. Cor. 328. 337. the sherife shal be charged with the escape but it shal be otherwise if the felon be committed to the people of the towne to carrie to prison for in that case if the prisoner doe escape the towne shal be charged therewith The hundred charged with escape 20 One was arrested for felonie and led to the hundred court Fi. Cor. 316 and then he was persuaded to goe abroad and séeke his warrant viz. one that should warrant him those goods which he was charged to steale and he went and fled to the Church and abiured In this case the whole hundred was charged with the escape and the partie who gaue him the counsell and leaue paid a great ransome to the king and the felons goods were forfeited to the King Escape of one imprisoned for a time 21 One that hath committed petit larcenie is adiudged to be imprisoned by the space of a moneth for his punishment 27 As p. 27 Fi. Cor. 430 and then béeing kept in prison after the moneth he breaketh prison and escapeth the kéeper of the prison shal be charged with this escape But if one that is arraigned of felonie 21. H. 7. 17 bee adiudged to be acquit viz. that he shal be discharged paying his fées By this hee shal be out of prison touching the felonie and the Gaoler shall not be charged if hée doe escape for the prisoner in the first case was by iudgement committed to prison and in the last adiudged to be acquit of imprisonment paying c. Where the towne hundred or countie shal be charged with escape 22 If one be slaine in the day time in a towne Fitz. Cor. 238. 293. and the murderer escape without béeing taken the towne shal be charged with the escape And if the partie be killed out of any towne then the Hundred shal be charged therwith Or if the towne be not sufficient to answer the amerciament for the escape Fi. Cor. 425 316. then the Hundred shal be charged therewith And for the disabilitie of the hundred the whole countie shal be charged with the escape And the same law is of Abiuration where the Church is in a field out of any towne The Gaoler will not receiue a prisoner 23 If the Constable doe arrest a felon and carrie him to the Gaole of the same countie and the Gaoler will not receiue him 10. H. 4. 7. the Constable
ought not to let him goe but the towne where the Constable dwelleth shal be charged with the kéeping of him vntill the next Gaole deliuerie Prisoner by matter of record 24 The law hath two seuerall respects to two sorts of prisoners whereof the one is prisoner by matter of Record and the other by matter in déed A prisoner by matter of Record is when one that is present in Court is committed to prison by the Court. In this case if the kéeper of the prison hath not this prisoner alwaies readie when the Court will send for him Fi. Cor. 466 or else doe shewe a reasonable cause why he cannot haue him the Court will iudge this an escape by the Kéeper without further inquitie But if the Kéeper of the prison bee in this case examined by the court of his prisoner 39 H. 6. 33. and he will say nothing the Court will adiudge it a voluntarie escape Fi. Cor. 352 25 If it be found in the Coroners Roll that one did flie to the Church Escape by a towne and no abiuration is found in the same Roll in this case the court will adiudge an escape vpon the whole towne without further presentment A man killed beeing in carrying to the Gaole And if a man be apprehended for felonie in a towne Fi. Cor. 346 and carried towards the Gaole by certain of the same towne and if he doe resist them whereupon they doe kill him in this case it shal be adiudged an escape vpon that town for in that hee was not safely carried to the Gaole attainted of felonie the king doth loose his escheats 26 When the Deciners doe present that a felon is apprehended for felony Escape by the Sherife and deliuered to the Sherife it will be adiudged an escape if they doe not declare to which Sherife he is deliuered and name him so that his rolls may bée searched and seene whether the prisoner came within the charge of the Sherife Fi. Cor. 345. and if it be not found how he came out of the Sherifs ward according to the law of the Realme an escape shal be adiudged vpon the Sherife 39. H. 6. 33. 27 It is vsed in the Kings Bench A Coroner sent to the Marshalsey to enquire c. to send a Coroner once or twice euery Terme to the Marshalsey to see all the prisoners that be committed to the marshall by matter of Record and if any of them be wanting cannot be found there to set his name in a booke and to informe the Iustices thereof and then the Court will examine the Marshall thereof and if he cannot sufficiently excuse himselfe the Court will record escapes vpon him for euery of them 21. As p. 12. 28 And touching those which bee prisoners of Record Confessing auoiding of an escape the Kéeper of the prison cannot trauerse the escape but confesse and auoyd it as in alleadging that the prison was burnt or broken by the Kings enemies or by saying that he which is supposed to be escaped is not the same prisoner which was committed to him 29 Prisoner by matter in fait is where one is prisoner by arrest onely Prisoner by matter in fait viz. by arrest whether it be by the Sherife the Constable or any other and he doth escape there the Escape shall bee presented before he shall aunswer vnto it And this presentment ought to be before the Iustices of the Kings Bench the Iustices in Eire or some other Iustices that haue authoritie to enquire thereof Before whom an escape shall be presented As it appeareth by the Statute of Westminster 1. the words whereof be these It is ordained St. 3. E. 1. 4. that nothing shall be demanded nor taken nor leuied by the sherife nor by any other for the escape of any theefe or felon vntill it shal be adiudged by the Iustices in Eire And he that shall doe otherwise shall restore to him that paid it so much as he hath receiued and to the King as much And likewise by the Statute of 31. Ed. 3. St. 31. E. 3. 14. it is prouided That the Escape of felons and Clerkes conuict shall bee adiudged by the Iustices and by their viewe leuied And though the foresaid Statute of Westminster the first doth not make mention of any but of Iustices in Eire 21 As p. 12. 27. As p. 1. yet it doth also extend to the Iustices of the Kings Bench because the Kings Bench is in Eire and higher then an Eire for if the Iustices in Eire doe sit in a Countie and the Iustices of the Kings Bench come thither the Eire shall cease Iu. of peace and Coroner shall enquire of escapes 30 And by the Statute of 1. R. 3. St. 1. R. 3. 3. Iustices of Peace may enquire of all manner of Escapes of euery person arrested and imprisoned for felonie And by the Statute of 3. H. 7. St. 3. H. 7. 1. They may enquire of the escape of any that hath committed murder and make certificat thereof into the Kings Bench. And also by the said Statute of 3. H. 7. the Coroner vpon the viewe of the dead body may enquire of the escape of the murderer for if he doe commit the murder in the day and escape the towne shal be amerced And also the Coroner shall deliuer his Inquisition therof to the Iustices at the next Gaole deliuerie of the same Countie Trauerse to a presentment of an escape 31 Vpon an escape for the which no fine is to be paied Fi. Cor. 291 328. 346. but an Amerciament he or they which be charged therewith shal haue no Trauerse to the presentment thereof Quia de minimis non curat lex Escapes inquirable in Leetes and Turnes 32 Although Escapes of felons be at this day inquirable in Léetes and Sherifes Turnes yet it shall not be leuied vntill it be adiudged before the Iustices for that should bee contrarie to the foresaid Statute of Westminster 1. The penalties of escapes 33 The penaltie of him which doth voluntarily suffer one arrested for felonie to escape is the forfeiture of all that he hath because it is felonie The penaltie of him which doth suffer a negligent escape of a felon is to pay a fine The penaltie for the escape of him which was neuer arrested is but an amerciament And if any doe suffer him that is attainted of felonie negligently to escape he shall pay to the King for a fine an hundred pounds And if the partie escaping were but indicted and not attainted then he shall paie to the King for a fine a hundred shillings If one which is not indicted nor taken with the manner nor apprehended at the suit of the partie 42. As p. 5. but onely taken by a straunger for susption of felonie do escape there shal no penaltie nor punishment follow thereof But yet if after the same escape he
another Fit Cor. 100 but he must commence one appeale for the whole or for parcel And if he doe bring his appeale but for parcell he shal loose the residue of the goods robbed and the king shall haue them for he cannot enlarge his appeale Where one shall answer to diuers appeales or indictments 54 If one man robbe seuerall men euery of the persons robbed may haue an appeale against the felon And although he be attainted at the suit of one of them yet he shal be tried at the suit of the others vpon their appeales if it be so that they haue commenced their appeales before the said attainder 4 Ed. 4. 11. 7. H. 4. 31. Fi. Cor. 379 And if he be found culpable at their seuerall suits and that they haue made fresh suite they shall haue their goods againe which were taken from them by robbery as well as he shall at whose suit he was first attainted 4 Ed. 4. 11 And those last Enquests shal be taken at the suit of the parties and not be adiudged Enquests of office But if the other who haue cause of appeale doe not commence their appeales vntill the appellée be attainted at the suit of the first appellant and that in the same countie where they ought to haue prosecuted their appeals after such attainder they shal not be receiued to commence them But yet Fi. Cor. 227 M. 10. H. 4. if after such first attainder the king will graunt to the partie attainted his pardon then he shal answer to the said appeales so commenced against him after his Attainder yea and for the Kings aduantage a man attainted of felonie shall answer to an offence committed before any pardon was graunted vnto him 1. H. 6. 5. As a man being attainted of felonie shal be put to answer to a treason before committed because in that case the King is to haue the Escheat But in an appeale of murder or rape the lawe doth differ from the before mentioned case of appeale of robberie for if in appeale of murder or rape the offendor bee attainted at the first appellants suit hee shall not be put to answer to other appeales brought after for murder or rape though they were commenced before the appellées attainder séeing the appellants are not to haue any restitution of goods or other benefit thereby but only the attainder of the appellee which is already attainted at the first appellants suit and so to be hanged therefore Answer to diuers indictments 55 As seuerall persons vpon their seuerall appeales commenced shall haue restitution of their goods stollen or robbed from them by one man so by the statute of an̄ 21. H. 8. St. 21. H. 8 11 a man shall haue restitution of his goods robbed or taken from him vpon the indictment and arraignement of the offendor and euidēce giuen against him by the partie robbed or owner of the goods or by some other by his procurement Therefore if one man doe robbe or steale goods from thrée men seuerally and he is indited of the robbing or stealing from one of them arraigned thereupon In this case though the other two would giue euidence against the offendor yet they shall not haue restitution of their goods by the intention or meaning of that stat for the felon is not attainted of any other robberie or felonie sauing of that whereof he is indited But if he be indiced of all the thrée robberies or felonies seuerally and arraigned vpon one of them and found guiltie by the euidence giuen by one of the parties robbed or c. yet hée shal be after arraigned vpon the other two inditements to the intent that hee may be also found guiltie by the euidence of the other two persons robbed or c. that they may haue their goods stollen againe according to the meaning of the foresaid statute S. Restitution 4. 56 Whereas by the common laws of this Realme He that is allowed his clergie shall answer to former offences and also by the stat pro Clero St. 25. E. 3. 5 made an 25. E. 3. no clerke arraigned of felony before a secular Iudge which was demanded by the Ordinarie of the place should be remanded to the gaole but ought presently to be arraigned of all his offences or otherwise deliuered to the Ordinary But because diuers persons did ofttimes commit and do sundrie detestable murders haynous robberies and felonies and other capitall offences for the which clergie is not allowable by the laws and statutes of this realm and after the same offences so done either did fly out of the countie or other parts of this realme into the parts beyond the seas or kéepe themselues secret in other places whereby they were not knowne for a great time and after did cōmit some other felony for the which they might haue their clergie and being arraigned of the same had their clergie to them allowed thereupon were committed to the custodie of the Ordinarie according to the law and custome of this realme the former offence wherein clergie was not grantable being then not knowne and so by that meanes could not after be impeached for the said other horrible and great offences by the law and custome of this realme to the great encouraging of offendors vsing such practises of foreknowledge and set purpose for the discharge of the same Therefore for the reformation of the premisses St. 8. El. 4. by the stat of an 8. Eliz. it was enacted That euery person which shall vpon his arraignement for any felonie bee admitted to his clergy by the lawes of this realme shall before the same admission haue committed any other offence whereupon clergie by the laws stat is not allowable and not being thereof before indicted acquited conuicted or attainted Appeale of former offences or pardoned shall may be indicted or appealed for the same and thereupon ordered and vsed in all things according to the lawes in such maner as though no such admission of clergie had beene St. 18. El. 6. 57 And after viz. an 18. Eliz. a more generall stat was made A Clerke shal answer to former offences That all and euerie person persons which shall hereafter be admitted to haue the benefit of his or their clergie shal notwithstanding his or their admission to the same bée put to answer to all other felonies wherof he or they shal be hereafter indicted or appealed and not being thereof before acquited attainted conuicted or pardoned shal in such maner and forme be arraigned tried adiudged and suffer such execution for the same as he or they should haue done if as clerk or clerks conuict S. Indict 52. they had bin deliuered to the Ordinary there had made his and their purgation Britton 58 If a man cōmence his Appeale of death before the Coroner in the county presently the Serieant of the county shal be commanded The
writeth That he which is appelled of the déed doth come and defend all manner of felony and that the peace of the king is not broken whatsoeuer is against the K. peace and the death whatsoeuer is obiected against him and that he doth put himselfe vpon the countrey of good and euill that he is not guilty thereof if he do chuse the country Or that he is ready to defend himselfe by his body against the appellant as the kings court shall consider for if he will simply say that he will defend himselfe as the kings court shall consider vnlesse he will say more he shal not be defended for the kings court must not instruct him in what manner he ought to defend himselfe and if he doe say that he is ready to defend himselfe either by his body or by the countrey as the kings court shall consider he séemeth thereby to take from himselfe election And the kings court ought not to compell him to the one more then to the other nor to inforce him how he shall defend himselfe séeing he hath frée choice and therefore he must hold him to one of them But if he make his election to be tried by the countrey it shall not be in his choice what countrey he will take Fi. Cor. 121 83 A writ of Appeale shall abate for false Latine or for lacke of forme Pleas to the writ in appeal as in a writ of Appeale this word Habeas did want and therfore the appeale abated without amendment In an appeale brought against a principall and accessorie of the death of A. B. of C. in the County of D. the accessory pleaded 18. El. Dyer 348. that there was no such A. B. at the time of the writ brought neither was there euer any such as the writ supposeth and demaunded iudgement of the writ and this was adiudged a good plea in abatement of the writ if there were no such A. B. in the said County of D. though there was one at that time of the name of A. B. in another County Or if the said A. B. dyed before this appeale commenced 84 In an appeale of Rape the writ shall be The forme of the writ of appeale of Rape ad respondendum appellanti secundum formam statuti quare vxorem suam rapuit and not vnde eum appellat secundum formam statuti because the statute doth not giue the appeale for the appeale was at the common Law but hée ought to answere according to the Statute to this intent that he shall not wage battaile for the Statute sayth St. 6. R. 2. 6 Ad duellum vadiandum minimè recipiatur And though in his writ of appeale of Rape he doth not vse these words felonicè Rapuit yet is the writ good notwithstanding that for in this word Rapuit felony is implied If in an appeale of Rape the writ hath not this word Rapuit 3. Eli. Dyer 202. it shal abate Rapuit materiall although it hath words amounting to the same effect as carnaliter cognouit such like S. Felony by Statute 4. 7. H. 7. 6 Co. li. 4. 47. 85 One shall not haue diuers writs of Appeale Not two appeales for one offēce against one person depending at one time against another of one felony But yet before the writ be abated it is requisite that the court be satisfied that both those writs were pursued by the plaintife which must be proued by some act that the plaintife hath done as if he hath appeared to them both and counted vpon them for notwithstanding that one of them hath bin deliuered of record to the shirife to serue yet séeing that may bée done by a stranger as well as by the plaintife it shall be no conclusion to the plaintife to say that the said writ so deliuered of record was not his sute And the like law is 4. H. 6. 15. if an appeale by bill be commenced in the county before the shirife and the Coroners and is remoued out of the county into a court of record and there depending the plaintife doth purchase another appeale by writ this appeale by writ shal abate But it is otherwise if the appeal by writ be purchased before the appeale by bill remoued out of the county 10. H. 4. 4. for there the Court ought to send for the appeale in the county without abating the appeale which is cōmenced by writ and this is more worthy and of an higher nature then is the appeale by bill commenced in the county which is but as a plaint vntill after it be remoued for it is a common course in the K. Bench when an appeale is depending there by Writ to send for the appeale cōmenced by bill in the county and yet if the appellant be nonsute in his appeale depending in the county his Writ shall abate 86 In an appeale brought against two Pleading of one in appeale against two one of them may plead 21. E. 4. 71. 7. H. 4. 27. that his companion that was named with him in the Writ died at such a place before the Writ purchased Or that there was none such in Rerum natura as the other which was named with him in the Writ the day of the Writ purchased for if he that doth appeare should not plead these pleas there is none to plead them and in the foresaid cases and in all other cases of appeales against seuerall persons if the appeale doth abate against one of them 9. H. 4. 2. it doth abate against them all 87 In an appeale if the def do plead that the plaintife is misnamed The plaintife misnamed 9. H. 5 1 if the plaintife will confesse it the couin shal be examined viz. whether he doth it by couin betwéene him and the plaintife or not But if it be proued true that the plaintife is misnamed the appeale shall abate 88 In an appeale the defendant may haue two or thrée pleas to the writ Two or thrée pleas to the writ as the tenant shal haue in an assise But he must take care that one of them be not contrary to the other 89 To make a barre in appeale Barres in appeale is to run ouer the foresaid title to whom appeales be giuen and according thereunto to frame his plea in barre for if an appeale be commenced by one that hath no title to maintaine it that is good matter to plead in barre against the appellant As if a woman doe bring an appeale of the death of her husband it is a good plea to plead 28. E. 3. 9. 27. Ass p. 3 50. Ed. 3. 15◠that after the death of her husband she hath married another husband Appeale of death brought by the wife Or that shee was neuer accoupled in lawfull marriage to him of whose death shee doth bring the appeale 90 If an appeale of death be brought by the heire Barres in appeale of death
plead that the plaintife is outlawed 17. Ass p. 26 11. Ass p. 27 18. E. 3. 35 Fi. Cor. 3 or is attainted of Treason or Felony or otherwise is disabled to maintaine an appeale as if a woman doe bring an appeale of the death of her husband and the defendant doth plead that she and her said husband were neuer accoupled in lawfull marriage or that she hath married another husband Or that the appeale was not cōmenced within the yeare day after the offence committed Or that the appellant hath an elder brother liuing to whom the appeale is giuen Fit cor 384 387. not to the plaintife And all those matters which shal be a barre to the plaintife to bring the appeale shall also be a barre to the K. to take any aduātage against the appellée vpō the same appeal for in all these cases it may appeare that the appeale was cōmenced without cause grounded vpon false insufficient matter And the king shall be in no better condition than the appellant for the defendant is arraigned vpon the declaration of the appellant and yet it is otherwise where the Appeale was at the first grounded vpon sufficient and true matter But in all the cases aforesaid though the king can take no aduantage of the Appeale against the defendant yet he may compel him to answer to an indictment of the same felonie for that by these pleas the defendant is not discharged of the felonie though he be discharged of the Appeale S. Approuers 15. 17. 18. 19. No appeale of Treason 97 If an act which was murder felony or other offence by the cōmon law be after made treason by stat then one doth offend in the same no Appeal wil lye against him therefore for that no Appeale will lye of High or Petit Treason And therefore whereas wilfull poysoning was wilfull murder by the common law and after by the stat of 22. H. 8. 9. the same was made high treason and ordained that the offendor therein should be boyled to death which stat was sithence repealed by the stat of 1. Ed. 6. 12. 1. M. yet during the said stat of 22. H. 8. in force the sonne and heire of a man poysoned brought an appeale against a woman for poysoning her husband and because the offence was then high Treason M. 33. H. 8. Dyer 50. and no appeale will lye of Treason the appeale was adiudged not maintanable And yet by the ancient lawes of this realme as Bracton affirmeth the accusor might haue pursued an appeale of high Treason against the defendant or party accused Bracton de coron̄ c. 3 and the defendant might haue thereunto pleaded not guilty and waged battell with the accusor But that Law is sithence altered ⧠Indictments What an Indictment is 1 AN Indictment of Treason Felony Trespas or other offence is an inquisition taken and made by twelue men at the least thereunto sworne whereby they doe find and present that such a person of such a name and sirname dwelling in such a place of such a County and of such a degrée hath committed such a Treason Murther Rape Burglarie Robberie Felony Trespas or other offence at such a place vpon such a day and in such a manner against the Kings peace his Crowne and Dignitie and contrary to the Lawes of this realme and so it is an accusation by the Iury of the offendor and an information of the Court from whence they receiue their charge of his offence and of all such necessary circumstances thereof and in such certaintie that thereupon the same Court may procéed to the triall or arraignement of the party accused if he be present or otherwise may award Proces against him to appeare and to make answere thereunto if he be absent And because this Indictment and accusation doth sometime concerne the life or member of man sometime his liberty sometime his fame and credite sometime his Lands and Tenements and some other time his Goods Cattels Therefore the Law hath a speciall regard that the procéedings therein may be effected with all sinceritie and vpright dealing and doth carry a vigilant and watchfull eye not onely vpon the Iurors which are returned and sworne in those Enquests that they may be men of integritie sufficiencie and indifferencie but also vpon Shirifes and Baylifes of Liberties who haue authoritie to returne the same Iurors for she hath prouided by seuerall Statutes That they shall take no Indictments by Commissions procured at their owne sute but in their Turnes That they shall hold their Turnes St. 28. E. 3. 9 St. 31. E. 3. 14 St. 13. E. 1. 13 St. 1. E. 3. 16 and take Indictments but in conuenient and vsuall times That they shall take Indictments by twelue men at the least and then by Roll indented That they shal take their Indictments by men of good name credit and sufficient of estate St. 1. R. 3. 4 St. 1. E. 4 3. That they shall bring their Indictments and Presentments found and made in their Turnes to the Iustices of Peace of the same Countie that they may award Proces against those that be indicted and set fines vpon them That Iurors impanelled to make inquiries St. 11. H. 4. 9 shall be lawfully returned by shirifes or baylifes of Franchises without the denomination of any other person That Panels returned by the Shirife to make inquiries St. 3. H. 8. 12 St. 3. H. 7. 1 may be reformed by the Iustices and that one Enquest may be impanelled and charged to inquire of concealements of offences made by another Enquest So that the Law hath prouided that Indictments may be found by men of worth and vpon iust causes And as touching Commissions because in times past Shirifes of diuers Counties by vertue of Commissions generall Writs graunted vnto them at their owne sute for their priuat gaine did take diuers Enquests to indict people at their owne pleasures Commissions to shirifes to take indictments and then tooke fines and ransomes of them to their owne vses and after set at liberty the parties and neuer brought the same persons so indicted before the Kings Iustices to be deliuered there according to the forme of Law It was therefore by a Statute made Anno 28. Ed. 3. St. 28. E. 3. 9 ordained That all such Commissions Writs should be from thenceforth repealed and that none such should be at any time after graunted By force of which Statute the Shirife is restrained to make any inquirie by Writ or Commission The shirife may inquire of Felonies But yet by vertue of his office he may at this day make inquirie in his Turne of Felonies obseruing such orders as by the statutes hereafter limitted be expressed St. 9. H. 3. 36 2 Whereas by the statute of Magna Charta it was ordayned That no Shirife or his Baylife shall hold his Turne by Hundreds but twice in the yeare in
away of his goods Fitz. Indict 31. the defendant pleaded not guiltie and it was found by verdict that the defendant with other his companions did steale those goods from the plaintife whereupon the defendant was awarded presently to answer to the felony at the K. suit But it was then affirmed that if the enquest had passed in any other place sauing the K. Bench nothing ought to haue béene done touching the felony vntill the Eyre of the Iustices 1. H. 7. 6. 19 If the Sherife returne a Rescous made vnto him of one which hee did arrest for felony and was taken out of his possession The Sherifs returne no indictment In this case notwithstanding this return be matter of record yet it is not sufficiēt to serue as an indictment against him that made the Rescous And the same law is if the Sherife returne 2. E. 3. 1. that the party arrested did escape from him And the reason of the difference betwéen the two former cases these is for that in the first cases there is a verdict of twelue men which will alwaies serue for the King if they conteine matter that will intitle him For the King is euer present in court and if the parties in pleading or the Iurie in their verdict do disclose any matter which shall intitle the King the court shall adiudge for the King though he be none of the parties to the action But in the other case of the Sherifes returne it is not so for the Sherifes returne will rather attaint him than put him to answer for that it is a common rule that against the Sherifes returne there is no Trauerse nor answer S. Breaking of prison 7. 25. E. 3. 43. 8. H. 1. 8. 2. H. 7. 7. 3. H. 7. 5. 5. E. 6. Di. 69 20 An Indictment which is vncertaine is not good The yere day and place necessarie in an indictment and therefore to make a good Indictment it is necessarie to put in the yeare day and place when and where the felonie was committed And it ought to bée such a day as is not doubtfull nor vncertaine for if it be so it is as much as if no day had bin put in And therefore if a man be indicted Certaintie in the day that hee committed felonie in the Feast of Saint Paul without addition and there be two Feastes of Saint Paul in the yeare this is an vncertaine indictment and so void A man was indicted for that the first day of May and the fourth day of May at Dale hee did beat and wound I.S. and then and there did take and steale from him feloniously 2. H. 7. 7. a white horse and this was adiudged a void indictment for it is vncertaine whither these words adtunc ibidem shall haue relation for a felony can be committed but at one time and place 21 An Indictment ought to be certaine not onely in the day Indictment certaine in the matter but also in the matter 8. E. 4. 3. As if one be indicted for apprehending of a man for suspition of felony and that he did after voluntarily and feloniously let him go at libertie and the indictment doth not shew in certaintie for suspition of what felony he was taken this is a void indictment Indictments certain in the persons receiued 22 If a man be indicted as accessory to foure men in this maner viz. 30. H. 6. 2. that he knowing those foure to haue committed felony did receiue them feloniously at D. and the indictment doth not shew which of them he receiued this indictment is void for the incertaintie for the indictment should haue bin that he did receiue them all foure by name or thrée two or one of them by name Indictment vncertain at which court 23 If an indictment be 49. H. 6. 15 31. H 8. Dyer 46. 4. 5. P. M. Dy. 164 33 H. 8. Dyer 50. Ad magnam curiam cum leta tentam tali die anno extitit praesentatum quod c. this is a void indictment for that it is vncertaine to which of those courts a man will refer the presentment whether to the Léet or to the Court Baron And so must the words of an indictment be certaine in euerie addition of the county Indictment vncertaine in the addition towne place time person mysterie c. and in an Aliàs dictus c. and in the placing thereof Indictment for making of money 24 If a man be indicted that he made C. s̄ by Alchimy Fitz. Indict 10. like the mony of our Soueraigne Lord the K. and it is not alledged in the indictment what mony it was viz. pence grotes or c. this is a void indictment for the vncertaintie A common théefe 25 If a man be indicted that he is a common euill doer or a common théefe 22. Ass p. 73 29. As p. 45. without shewing specially in what thing this is a void indictment because it is vncertaine in what things the transgressor hath offended By the stat of anno 25. E. 3. 9. pro Clero it is ordained That no Ordinarie St. 25. E. 3. or any minister of his shal be indicted of extortion or oppression generally but it must be declared and put in certaine in the indictment in what thing of what and in what maner the said Ordinaries or their Ministers haue done extortion and oppression Indictment of the Ordinarie must be certaine or otherwise the said Ordinaries and their ministees shal not be impeached by the K. Iustices for the said indictment The foresaid A. where none is named 26 If a man be indicted for the stealing of the goods of the foresaid A. where there is no such A. before named in the indictment this is a void indictment 9. E. 4. 1. for that words subsequent cannot haue relation to words precedent where there be none such Indictment for the killing of a man vnknowne 27 No man is bound to answer to an appeal of felony touching the death of a man if the appellant do not name the name of the party that was killed 22. As p. 94 But a man may be indicted quod interfecit quendam hominem ignotum 2. E. 3. 26. 9. H. 6. 64. 1. Ass p. 7. for he that is slaine may be so mangled in the face or was dwelling so far off that he cannot be knowne by name Indictment for stealing the goods of a man vnknowne And in like sort a man may be indicted for the stealing of the goods of cuiusdam hominis ignoti And the reason is Fitz. Indict 12. 1. M. Di. 96. 11. Eliz. Dyer 285. for that this indictment is not the suit of the owner of the goods but is the Kings suit who is to haue the goods if no man doe claime them And it were not expedient that the King should loose the goods for that the name of the
he may plead the same acquitall in bar for that no mans life shall be twice put in ieopardie of triall for one offence and one man can be but once slaine But it is otherwise in an indictment of robberie for a man may be robbed by one person at seuerall times and in seueral counties and so the acquitall of one of the same robberies will not serue him for the other And therfore if one be indicted of robbery in one county the defendant cannot plead 4. H. 7. 5. that he was indicted of the same robberie in another county and acquited for no man can be indicted or arraigned for a robbery but in the coūty where the same robbery was committed and though the def doth surmise that it is but one and the same felony yet that cannot be tried for the county where the first indictment was taken and the county where the last was taken cannot ioyne to make triall thereof But some do affirme that it is a good plea in an Appeale of robbery for by the Appeale the plaintif is to recouer his goods by the common law and so he is not vpon an indictment Indictment of rape A man was indicted in the K. bench of a rape and robbery committed in the county of C. and he pleaded 41. As p. 9. that he was before indicted of the same rape before the Iust of Assise in the county of C. and arraigned and acquited of the same fact And for that it was of the same fact he was discharged Arraigned vpon an insufficient indictment or appeale 42 It is not a sufficient plea in bar in an Appeale or Indictment of felony to plead that he was at another time acquited if there were not sufficient matter of felony in that apeale or indictment whereof he was acquited Co. li. 4. 45. Fitz. Cor. 414. for if there were not sufficient matter of felony in the first appeale or indictment and the same partie is againe indicted of new by an indictment which doth comprehend sufficient matter of felony he shal be againe arraigned because in that case he neuer put his life in ieopardy For when an offendor is discharged vpon an insufficient indictment the law hath not had his end neither was the life of the party in the iudgement of law at any time in ieopardie And the law will not suffer great offences to go vnpunished Acquit vpon an erronious appeale 43 If one be acquited vpon an erronious appeale which acquitall is reuersed by errour he shall now be arraigned at the K. suit vpon an indictment 9. H. 5. 2. for that by the reuersall he is become in that state as if he had not béene acquited But vntill that reuersal be made it shal be a good plea to plead Fitz. Cor. 444. another time acquit And it séemeth that the same is when the errour is in Proces that is not materiall which the defendant doth appeare and answer to the originall writ But the def shal not any more make answer to the appellant although the first acquitall be reuersed for so the appellant might delude the court infinitly and the defendant should neuer be deliuered 21. H. 6. 20 44 If one do bring an Appeale which hath no cause to maintaine the same Acquit vpon an Appeale brought by one that hath no right As if one which is not the lawfull wife or the next heire of him that was slain do bring an Appeale and the defendant doth take no aduantage thereof but pleadeth not guiltie and is acquit yet this acquitall will not serue to barre the lawfull wife or next heire of the dead when they shal bring their Appeale neither in this case the king shal be barred to arraigne him vpon a indictment or vpon a new appeale when the partie plaintife is nonsuit therein 16. Ed. 4. 11. 8. H. 5. 6. 45 If one bée arraigned vpon an Indictment at the Kings suit One arraigned vpon an indictment before the parties appeale be determined and acquited where by the order of law the King ought to haue tarried vntill the Appeale which was depending had béen determined yet this is no errour but the foresayd plea viz. another time acquit of the same felonie shall serue him that doth plead it Fitz. Cor. 375. 46 If a man be indicted of felony and arraigned at the Kings suit Acquit by battell in an Appeale it is no plea for him to say that at another time he was acquited of the same felony in an Appeale if so be that the same acquitall were not by enquest but by battell And the reason is because tryall by battell lyeth not against the King and therefore it is not méet that he should be bound by that tryall whereunto hée neither was Bracton nor could be partie And yet Bracton sayth that if the appellée in an Appeale doth make his choyce to defend himselfe by his bodie and all things be readie which doe ioyne the Appeale battell shal be presently waged and if in that case he that is appealed by diuers of one fact and of one wound doe defend himselfe against one of them hée shall goe acquit against all the residue of the appellants And so it is at the Kings suit for by this meanes he doth purge his innocencie against them all as much as i◠hée had put himselfe vpon the countrey and the countrey had cléerely acquited him Ideo quaere 47 Because by the common law A murderer indicted and arraigned at the K. suit within a yeare and a day after any murder or homicide had beene done the felonie should not haue béene determined at the kings suit for sauing of the parties Appeale wherein the partie was oft-times slow and also agréed with and by the end of the yeare all was forgotten And also for that hée which wil sue an Appeale must sue it in proper person which suit is long and costly and maketh the appellant diuers times weary thereof which were occasions of murder and manslaughter for the reformation whereof by a statute made Anno 3. H. 7. St. 3. H. 7. 1. it was enacted That if any man be slaine or murdered and the slaiers murderers abettors maintainers and comforters of the same bée indicted therefore the same slayers and murderers and all other accessories of the same shal be arraigned determined of the same felony murder at any time at the K. suit within the yeare after the same felonie murder done and not tary the yere day for any appeal to be taken for the same felony or murder And if it happē any person so named as principall or accessorie to be acquited of such murder at the Kings suit within the yeare and day then the Iustices before whom he is acquited shall not suffer him to go at large but either shall remit him againe to prison or else let him to baile after their discretion till the yeare and day
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
27. H. 8. 19. 32. H. 8. 3. 32. H. 8. 12. And by that means abiuration at the common law is restored to his former course I will therefore write so much of abiuration and abiured persons as is warranted by the common lawes of this Realme onely and not by any Statute sauing by the statute of Articuli cleri made an̄ 9. Ed. 2. 10. which is rather a confirmation or exposition of the common law than a new law and except so much as is contained or mentioned in the statute of 35. Eliz. 1. 2. or in any other law made sithence that time which I doe rather set downe that the Reader may knowe what the law hath beene or is then how it is vsed and put in practise 4 Abiuration doth not lie for him which offendeth in high treason No abiuration for high treason because the Coroner cannot attaint him vpon his confession thereof for that he is not his Iudge of that offence neither can he be Iudge as Coroner though hée haue a commission from the King to doe it And if the offendor béeing in a Church would of purpose confesse a felonie to the intent to escape Treason yet if the Coroner be informed that hee is charged with treason hée ought not to suffer him to abiure and that for the Kings aduantage for it is better for the King to attaint him of Treason than of felonie in respect of the Escheat which in case of Treason doth wholly belong to the King of whomsoeuer the offendors lands be holden And the same law is in petit Treason for the Coroner ought not to record his abiuration thereof No abiuratiō for petit treason any more than hee may doe of high Treason Neither the Coroner ought to let him passe by abiuration of another felonie if he be informed that the offendor hath committed petit treason and that for the grieuousnesse of the offence though the king shall receiue no more benefit in petit treason than in felonie And the statutes which were made in the time of k. H. 8. St. 21. H. 8. 2 22. H. 8. 14. 27 H. 8. 19 32. H. 8. 12 touching abiuration be a speciall argument and proofe thereof which doe onely make mention of abiuration for murder and felonie but not for petit treason Fi. Cor. 420 9. Ed. 4. 28 5 If a man doe robbe a Church and flie to another Church for the said offence and there would abiure No abiuratiō for the robber of a Church he shall not be receiued thereunto but shall violently be pulled forth of the Church and thrust into prison Quia frustra legis auxilium inuocat qui in lege delinquit Fit cor 313 9. E. 4. 28. 6 If a man that is attainted of felonie and in carrying to the gallowes to be put to death doe escape from the Sherife and flie to a Church No abiuratiō for a man attainted he cannot abiure and though the Coroner would take his abiuration and let him goe at libertie the Sherife may take him againe and put him to execution notwithstanding the said abiuration for it is void and the Coroner in that case shal be grieuously amerced for this escape and so shall the towne where he was let at libertie and the reason is for that a man cannot haue two Iudgements for one offence Fi. Cor. 335 And so it is and for the same reason if a man that is attainted of felonie and is carried to the gallowes and hanged breaketh the halter falleth downe and then riseth vp and doth flie to a Church he cannot abiure but must be taken againe by the sherife hanged vntil he be dead according to his iudgement No abiuratiō for a man before abiured 7 If a man doe abiure the Realme before a Coroner for felonie 9. Ed. 4. 28 8. H. 4. 3. Fi. Cor. 410 and after doth returne into the Realme without the Kings pardon and then flie to a Church and would abiure againe he shall not be allowed so to do but shall be taken forth by violence and put to execution for that he was before attainted of felonie vpon his owne confession and had his iudgement of abiuration and cannot be twice attainted or haue two iudgements Where an offendor may by violence bee drawne out of a Church 8 If a man doe flie to a Church claiming the priuiledge therof for the safeguard of his life in some cases he may be drawne forth of the same by violence as if he come into the Church to claime the benefit thereof for an vnlawfull cause at the beginning viz. for treason robbing of a Church beeing formerly abiured or such like in those cases he may be drawne forth of the Church by violence by the people of the same towne and in like sort 3. H. 7. 12. Bro Cor. 180. if he doe flie to a Church and saith he doth take it for the safeguard of his life and will not declare that he hath committed felonie and that therefore he claimeth the priuiledge of the Church in that case the officers of the towne may by strength take him out of the Church But if he doe say that he doth take the Church for felonie that is sufficient without declaring what felonie or the manner thereof for he is not bound to shewe that but to the Coroner before whom hee doth make his abiuration The offendors confessiō before the Coroner and then he must confesse and shew the yeare day and place where and when the felonie was committed for that iudgement is to be giuen vpon his confession which must be grounded vpon certaintie Tarrying in a Church aboue the time appointed 9 If an offendors being in a Church were once lawfull although he tarrie there aboue the time which the law hath appointed him yet hee ought not for that cause be drawne out of the Church by violence Fi. Cor. 313 but meat and drinke shall be withholden from him and euery person shall be forbidden to succour him and he that doth relieue him shal be punished at the Kings suit which punishment some doe affirme shal be for a lay man death Britton Bracton and for a Clerke banishment for he that taketh a Church for felonie ought not to tarrie there aboue one night if a Coroner will come vnto him and be ready to take his abiuration otherwise he may tarrie there fourtie daies The manner of abiuration 10 The manner of abiuration is that he who taketh a Church ought to declare that he doth take it for felonie which he hath committed and when the Coroner commeth he must confesse before him the felonie certainely viz. the yeare day and place where and when hee committed the felonie and pray to abiure the Realme and to haue the tuition of the Church vntill he can prouide for his iourney and this confession must be taken by the Coroner himselfe and not by his deputie And then he
appealed in that hee did breake the prison and flie or would haue fled for the felonie and that hée did not relie vpon and trust to his innocencie and be iustified and tried by the law And the Appellée may reply to that counter-plea and trauerse the arrest for felonie or the breaking of the prison if he will or he may plead the Kings pardon for the breaking of the prison 1. As p. 3 Fi. Cor. 154 157. which trauerse or pardon being tried or allowed he shal be restored to his triall by battell 7 As there be impediments of the defendants part Le ts of trial by battell on the plaintifes part why he may not wage battell against the appellant so be there lets of the appellants part that the appellée cannot wage battell against him for as vehement presumptions of the defendants guiltinesse be causes to put him from waging of battell so be vehement presumptions of the appellants infirmities or weakenesse sufficient barres to exclude the appellée from triall by battell with him As if the appellant be within the age of fouretéene yéeres or aboue the age of thréescore and tenne yéeres Fi. Cor. 230 268. 22. E. 4. 20 or within orders or a woman or be maihemed whether he were maihemed by the appellée at the time that the saide appellée robbed him or at any other time or as some doe affirme whether he was maihemed by the appellée or by any other And some doe holde it for Lawe that if the appellant be aboue the age of thréescore yeares the appellée shall no more wage battell against him than against an infant within age or a woman But if the appellée will wage battell being of that age he may for though he may discharge himselfe of battell in respect of his saide age if hée will Bracton yet in that the Lawe hath giuen him his choice whether he will be tried by battell or by the Countrey hée may refuse the benefit of his age and wage battell Priuiledge of the Appellāts person 8 In some cases the priuiledge of the person of the appellant shall put the appellée from the triall by battel with him as the person of the King when the defendant is arraigned at his suit in an appeale for in an arraignment vpō an Indictment at his suit The King the partie indited shall not wage battell for the vehement presumption that the Inditement is true béeing found by the oathes of twelue lawfull men of the Countrey Plo. com 335. And as the person of the King shall be exempt from battell so shall all other to whom the King shal please to grant such an exemption As in former ages such a graunt hath béene made by some King of this Realme to the Citizens of London that battel shal not be waged against any of them in any appeale whatsoeuer brought by any of them Fi. Cor. 125 157. And if a citizen of London Citizens of London will bring an appeale against another and the defendant will offer to wage battell with him though the Appellant would refuse the benefit of this priuiledge and ioyne battell with him yet the battell shall not be performed for the Mayor and Comminaltie of London must sue a writ out of the Chauncerie directed to the Iudges where that triall should bée made rehearsing their libertie and pray allowance thereof to stay the trial by battell And though in the foresaid case and other cases Fi. Cor. 125 where counter-pleas to battell be pleaded the plaintife doth count that if the defendant will denie it he is ready to prooue it by his body yet the defendant in his plea cannot take aduantage thereof for those be but words of forme and not of substance and notwithstanding this conclusion he may make his trial by the countrie or otherwise as the law will 9 By the Statute of an̄ 6. R. 2. St. 6. R. 2. 6. it was enacted That if any Noble mans daughters Ladies or other women be rauished and after the same rape committed doe consent to the Rauishers the husbands of such women if they haue husbands or if they haue no husbands liuing then their fathers or other their next kinsmen in blood shall haue the suit to prosecute and may pursue against the same offendors and rauishers in this behalfe and to conuict them of felonie No wager of battell in appeale of Rape though the same woman after the rape doe consent to the rauishers And in this case the defendant shall not wage battell but the truth of the matter shall be tried by the countrey S. Felonies by Stat. 2. One fighting with seueral men 10 If one man doe appeale diuers men of one felonie 47. E 3 5. 19. H. 6. 35 and they all ioyne in battell with the Appellant he must fight with them all one after another if it doe not so chance that he is slaine by one of them before he can performe the battell with the residue which if it happen all the residue of the defendants shall be discharged of the appeale But if when the Appellant doth come into the field to fight with one of the Appellées Fi. Cor. 98 he will then confesse his appeale to be false towards him yet that shall not discharge the residue of the appeale but they shall procéed in their triall with the appellant And likewise if one man be appealed by three men of seuerall felonies and he doe plead not guiltie ready to trie it by his bodie in this case hee must fight with them all one after another and though he doe vanquish or kill one of them this will not discharge him against the other Bracton de cor ca. 19 But if thrée men doe appeale one man but of one felonie then if the Appellée doe vanquish one of them he shal be discharged against the other two And in that case if the said thrée Appellants be Approuers 7. Ed. 3. 12 then the other two shal be hanged 11 And all that is before written touching Triall by Battell may be applied as well to the appeale of an approuer An Appeale by approuer who confesseth himselfe to be a felon as to an appeale commenced by a true man Fi. Droit 57 12 If a man be appealed of felonie The Appellee wageth battell and then becommeth blinde and wageth battell with the appellant and after he doth become blinde by infirmitie and not by his owne procurement he shall be discharged of the battell and so it is in a writ of Right for in this case the appellée hath pleaded such a plea as the Lawe doth allowe him and his disabilitie to performe it commeth by the act of God But if after the Defendant hath waged battell with the appellant the same appellant shall become blinde by what meanes soeuer the appellée shall be arraigned at the Kings suite S. Appeales 96. Triall by Peeres WHen the Defendant hath pleaded Not guiltie to
was established That if any Felon or Felons doe robbe or take away any money goods or cattels from any of the kings subiects from their person or otherwise within this Realme and thereof be indicted and after be arraigned of the same Felony and found guilty thereof or otherwise attainted by reason of Euidence giuen by the party so robbed or owner of the said money goods or cattels or by any other by their procurement then the party so robbed or owner shal be restored to his said money goods and cattels Before which statute the party robbed or owner of the goods stolne could not haue had restitution without suing of an Appeale against the Felon Euidence giuen by a stranger 4 If the seruant be robbed the master may giue euidence against the Felon and haue restitution by this statute if so be that the goods robbed were the goods of the master for the words of the statute be The party so robbed or owner Also if he that was robbed doth not giue Euidence himselfe but procure another to giue the euidence this is sufficient by the words of the statute to obtaine restitution of his stolne goods There must be two accusors to giue euidence in Treason 5 By a Braunch of a statute made Ann̄ 5. Ed. 6. St. 5. E. 6. 11 it was ordained That no person or persons shall be indicted arraigned conuicted condemned or attainted for any Treasons that now be or hereafter shal be vnlesse the same offendor or offendors be therof accused by two lawfull accusors which said accusors at the time of the arraignment of the party accused if they be then liuing shal be brought in person before the party so accused and auow and maintain that which they haue to say against the said party to proue him guilty of the Treasons or offences contained in the bill of indictment layed against the party arraigned vnlesse the said party arraigned shall willingly without violence confesse the same But after by the statute of An. 1. 2. P. M. St. 1. 2. P. M. 10. T. 2. 3. P. M. Dyer 132. it was ordained That all tryals to be had awarded or made for any Treason shall be had and vsed onely according to the due order and course of the common lawes of this Realme and not otherwise Quaere whether the said stat of 1. 2. P. Ma. do take away the force of the foresaid stat of 5. Ed. 6. which it is thought it doth not but that the said statute of Anno 5. Ed. 6. doth remaine in force séeing it was ordained onely for the accusation or euidence and not for the time place or order of the triall Euidence in high Treason 6 If there be an accusor of high Treason of his owne knowledge 1. M. Dy. 98. or of his owne hearing and he doth vtter it to another that other may well be an accusor or witnesse And likewise if the second man do vtter it to the third and the third to the fourth man euery of them may be an accusor or witnesse Euidence against abettors to offēces 7 By the statute of Anno 5. Eliz. St. 5. El. 1. it is ordained That no person or persons shal be indicted for assisting aiding maintaining comforting or abetting of any person or persons for any of the offences mentioned in the said statute in extolling setting forth or defending of the vsurped power and authority of the bishop of Rome vnlesse he or they be thereof lawfully accused by such good and sufficient testimony or proofe as by the Iury by whom he shall be so indicted shal be thought good lawfull and sufficient to proue him or them guilty of the said offences S. Treasons 15. 8 By the Statute made Anno 31. Eliz. St. 31. Eli. 4. it is ordained Euidence on the def part That such person and persons as shall bée impeached for any offence made Felony by that Statute béeing intituled an act against imbesilling of armour habiliments of warre and victuals shall by vertue of this act be receiued and admitted to make any lawfull proofe that he can by lawfull witnesse or otherwise for his discharge and defence in that behalfe any Law to the contrary notwithstanding S. Felonies by Statute 33. ⧠Verdict 1 AFter the prisoner hath pleaded not guilty hath béen thereupon arraigned and euidence giuen against him in open court before the Iudges and the Iury the same Iury do depart from the barre to consider of their euidence proofes which being done they return again to the court to giue vp their verdict which as the issue of not guilty is generall so may they deliuer their verdict guilty or not guilty if they will and that their euidence be cleare and do induce them therunto But it is not alwaies requisit to giue a generall verdict for if the fact whereupon the prisoner was arraigned be such that the Iury doe stand in doubt whether it be felony or not they shall best discharge their consciences to giue a speciall verdict that is to say a verdict at large viz. a verdict declaring at large the whole truth of the matter which may be done as well in case of felony as in an assise A verdict at large in felony or action of Trespas as they may deliuer their verdict 44. E. 3. 44 Fi. Cor. 284 286. 287. 47. Ass p. 31 that the prisoner which is arraigned for the killing of a man did slay the same man in his owne defence for he that is arraigned must plead not guilty séeing that in his plea he cannot iustifie the killing of a man and then the Iury in their verdict may declare the whole circumstance of the fact and conclude that he killed him in his own defence for it is not a sufficient verdict for the Iury to say that the prisoner killed the man in his owne defence but they must shew the cause manner and circumstance of the fact that the court may discerne iudge whether the fact which the prisoner hath committed be felony or not whether the prisoner standeth in the Kings mercy or not and whether hee shall loose his goods or not The verdict lesse penall thē the indictment 2 As a Iury may giue a speciall verdict touching a man that killed another in his own defence so may they giue a speciall verdict where he that is arraigned killed another by misfortune Or where he which cōmitted the homicide was not of perfect memory or deafe dumbe or an infant without discretion Or that the thing which was stoln was not worth aboue x. d. Or that he which is indicted arraigned for committing of a murther T. 26. H. 8. 5 P. 9. El. Dy. 261. Pl. com 101 Br. Cor. 221 Br. Appeale 122. did kil the man by chance medley or in his owne defence and not of malice prepenced And if two be indicted for cōmitting of a felony do plead
the sayd auntient law for they would not deliuer the prisoner vnto the Ordinarie vntill hée was indicted and also arraigned and that it was enquired by an Enquest of Office whether hée were guiltie or not In which case if he were found not guiltie they would discharge him and if he were found guiltie his goods should bée forfeited his lands taken into the Kings hands and his bodie deliuered to the Ordinarie And the cause of chaunging this law was that the Ordinarie might take greater charge of the prisoner being now indicted than before and to benefit the King by the forfeiture of the prisoners goods and to bréed a greater feare in Clerkes after that they should not offend Which alteration was obserued for law vntill the raigne of King Henry the sixt at which time the Iudges would not admit a prisoner to demaund his Clergie vpon his arraignment but put himselfe first to answer to the Felonie and if hée were found guiltie of the Felonie at his owne suit then to heare him demaund his Clergie and not before 3. H. 7. 1. 12. which is a more reasonable law than the former for before hee should haue forfeited his goods vpon an Enquest of Office whereunto hée could haue no challenge and now he shal be tryed at his owne suit and shall haue his challenge to the Enquest and then if he be found guiltie hée shall forfeit his goods and for the sauing of his life and his lands hée is to pray his Clergie Which hath bin vsed euer sithence and is obserued for law at this time vnlesse the prisoner himselfe will refuse the benefit thereof and pray to haue his booke without hearing the verdict As if a prisoner after an Enquest is charged vpon him Clergy demanded before verdict and before their returne againe will say that he is a Clerke and desire his booke at his perill in this case the Court hath allowed him his Clergie and yet after hath receiued a verdict as well in fauour of life as in fauour of the King for if he be found not guiltie the prisoner shall be discharged and if he bée found guiltie the King shall haue his goods as forfeit And the request of his booke in that case is more for the prisoners disaduantage than the Kings for it may bée a meane that the Iurie vnderstanding thereof will the rather find him guiltie of the felonie than otherwise they would haue done 26. Ass p. 19 33 If a prisoner doe say that hée is no Clerke Denying to be a Clerke and yet is yet after if before iudgement hée doe pray his Clergie where Clergie is allowable by the law and then doth read as a Clerke hée shall haue his Clergie notwithstanding his former words But it hath béene a question Whether clergie is allowable without request whether the Iudges ought to allow any man his Clergie without praying of it though the offendor be indicted by the name of Priest Fi. Cor. 254 Clerke c. or that by some other meanes the Iudges themselues doe know that hée is a Clerke or that without praying of his Clergie they shall giue iudgement of death against him And in this case some doe affirme that if the prisoner doth not pray his Clergie hée shall not haue it though the Iudge doth vpon his owne priuat knowledge vnderstand that hée is a Clerke for the Iudge must in those cases procéed according to his iudiciall knowledge and as by record things bée found proued and tryed before him and not according to his owne naturall knowledge And they bée the rather so induced to thinke by the words of the aforesayd statute of 1. Edw. 6. St. 1. E. 6. 12 which ordayned That a Péere of the Realme shall vpon request haue the benefit of his Clergie and so inferre that without request he shall not haue it nor any other without request which is to haue it vpon request 34 The temporall Court shall be Iudge to allow or disallow of Clergy Who shall allow of clergy and not the Ordinary 15. H. 7. 9. for it was entred into the roll of the court legit vt Clericus ideo tradatur Ordinario by which words it doth appear that the court doth giue allowance therof for the felony being the act which is cōmitted is temporal and the Iudge which did commit him to the Ordinary is temporal so is the authority wherby he did commit him And the Ordinary should haue bin punished if before the stat of 18. Eli. St. 18. El. 6. he had letten to baile or at liberty any prisoner cōmitted to him or if he had imprisoned him too straitly or too easily or would not haue suffered him to haue made his purgation and in that case the king might haue sent his Writ vnto the Ordinarie commaunding him to suffer his prisoner to make his purgation or might haue pardoned him or set him at liberty Fitz. Cor. 44. 17 without making his purgation and if one read as a Clerke and yet the Ordinarie will refuse him notwithstanding hee shall haue the benefite of his Clergie and on the other side if the Ordinarie will say that hee doth read as a Clerke whereas in truth hee doth not read as a Clerke the Court must giue iudgement that hée shall bee hanged and cause execution to bee done of him And further to prooue that the Temporall Court is Iudge of the reading the Court doth appoint the verse or place to the prisoner to read and not the Ordinarie And also doth set a fine vpon the Ordinary 34. H. 6. 49. 21. Ed. 4. 21. 9. E. 4. 28. for saying that the prisoner doth read as a Clerk where he doth not which the court could not do if the reading were referred to the Ordinarie A felon doth read vnder the gallowes 35 If a felon doth not read as a Clerke before the Iudge at the time of his arraignment whereupon he is adiudged to be hanged yet in fauor of life 34. H. 6. 49. if hée arraignment whereupon he is adiudged to be hanged yet in fauor of life if hée do demand it at another time vnder the gallows if any of the Iudges do passe that way and doth read as a Clerke he shall haue the benefit of his Clergie although there be no Ordinary there to demaund him But this is in case where the felon is arraigned and iudged before the Iust of the K. Bench 3. 4. El. Dy. fo 205. or else in case where he is arraigned and iudged before the Iust of gaole deliucrie and it is entred by the Court non legit vt Clericus and then for some cause he is repried vntill the next Session and then againe he is demanded if he can read and then he can and doth read in this case he shall haue his Clergy in fauor of life And though he was taught to read in the gaole this shall saue his life but the
4. H. 7. St. 4. H. 7. 13 for by the common law if a man had once enioyed the benefit of his Clergie for felonie and after committed felonie againe yet he should haue had the priuiledge of his Clergie againe and so often as hée had committed felony vntil the said statute did restraine him by these words viz. Where vpon trust of the priuiledge of the church diuers persons haue bin the more bold to commit murder rape robberie theft and all other mischiuous déeds because they haue béen continually admitted to the benefit of their clergie as oft as they did offend in any of the premisses In auoidance of such presumptuous boldnesse it is ordained That euerie person not being within orders which once hath bin admitted to the benefit of his Clergie eftsoones arraigned of any such offences be not admitted to haue the benefit or priuiledge of his clergy and that euery such person so conuicted for murder How the conuict shal be marked to be marked with an M. vpon the brawne of the left thumb if it be for felony the same person to be marked with a T. in the same place of the thumb these markes to be made by the gaoler openly in the court before the Iudge before such person be deliuered to the Ordinarie Prouided alwayes if any person at the second time of asking his clergie because hee is within orders hath not there ready his letters of his orders or a certificat of his Ordinarie witnessing the same that then the Iustices before whom hee is so arraigned shall giue him a day by their discretion to bring in his said letters or certificat And if he faile and bring not in at such a day his said letters nor certificat then the same person to loose the benefit of his clergie as he shall doe that is without orders By which stat it doth appeare that he that is within orders is excepted and that he may haue his clergie the second time vpon the shewing of his letters of orders or his Ordinaries certificat of the same this statute notwithstanding But after by the statute made Anno 28. H. 8. 32. H. 8. St. 28. H. 8. 1 32. H. 8. 3 it was enacted How offendors that be within orders shal be vsed That all such persons as be or shall be within holy orders which by the lawes of this Realme ought or may haue their clergie for any felonies and shal be admitted to the same shal be burned in the hand in like maner and forme as lay Clerkes béene accustomed in such cases and shall suffer and incurre after all such paines damages and forfeitures and bee ordered and vsed for their offences of felony to all intents and purposes as lay persons admitted to their clergie be or ought to be ordered and vsed by the lawes and statutes of this Realme Any lawes statutes prouisions customes c. notwithstanding The force and effect of part of which said statutes of 28. H. 8. 32. H. 8. is in some sort attenuated by a braunch of the stat of Anno 1. Ed. 6. St. 1. E. 6. 12 S. Br. 24. as some do conceiue it which doth ordaine That in all other cases sauing such as be mentioned in the sayd Act all and singular person persons which shall be arraigned or found guiltie vpon his or their arraignement or should confesse the same or stand mute or would not answer directly should haue and enioy the priuiledge and benefit of his and their clergie the libertie and priuiledge of Sanctuarie in like manner and forme as he or they might or should haue done before the foure and twentieth day of Aprill Anno 1. H. 8. at which time a man within orders should haue had the priuiledge of his clergie seuerall times And by this Statute he shall not be burned in the hand as a lay man shall But yet in all those cases wherein a man is put out of his Clergie by the Statute of Anno 1. Ed. 6. and also in all other cases wherein Clergie is taken away by any Statute made sithence Anno primo Edw. 6. a man within orders is as well put out of his Clergie as a lay man euery of those Statutes being generall and without exception 42 Because diuers persons haue béene in times past indicted arraigned and some of them Clerkes conuict and some of them Clerkes attainted and some of them outlawed for Murder Burglarie Robberie and other Felonies before Iustices of Peace Iustices of Gaole deliuerie and Iustices of Oyer and Terminer within diuers Cities Counties Franchises and Liberties within this Realme The records of which attainders outlawries and conuictions many times by the negligence of the Clerke of the Crowne Clerke of the Peace Clerke of Assise and such other as haue had the order rule kéeping and gouernance of the same Records haue béene imbeciled and not readie to be obiected against such persons as haue béen newly arraigned before the King in his Bench or before other the Kings Iustices for the like and such other offences by them committed or done And for that it hath not béene knowne certainely whither to resort for the same Records because they were not certified into any place certaine by reason whereof sometimes such persons and like offendors which haue béene newly arraigned as is aforesayd haue had the benefit of his or their Clergie where they ought not ne should haue had the same if the said Records had béene then present in the same place where such person or persons were so newly arraigned or else certified into some other place certaine where the same Records might haue bin séen sent for or written for to haue béene obiected against such person or persons so newly arraigned whereby as well the King as also all other persons haue many times lost their Escheats and other aduantages and forfeitures that they should haue had by meane of the sayd attainders to the great losses of the King and other persons and also the sayd offendors haue had their Clergie where they ought not to haue had to the great boldnesse and encouragement of like offendors For the reformation whereof by a Statute made Anno 34. 35. H. 8. St. 34. 35. H. 8. 14. it was enacted That the Clerke of the Crowne Certificat into the K. bench of outlawries attainders conuictions Clerke of the Peace and Clerkes of Assise for the time being where any such attainder outlawrie or conuiction shall so bée had shall not onely certifie a Transcript briefly and in few words containing the tenor and effect of euerie such indictment outlawrie or conuiction and Clerke attainted before them so to be had made or pronounced that is to say the name sirname and addition of euerie such person and persons as shall be so indicted and thereupon outlawed conuicted or Clerke attainted and the certaintie of the sayd felonie or other offence whereupon he or they shal be so outlawed
euidence against him they vsed to bring forth the prisoner and to arraigne him of the principall fact and if hée pleaded or saide that hée was not guiltie thereunto then an Enquest of Clerkes was charged And if by the saide Enquest of Clerkes he was found not guilty of the same offence then he was set at libertie and if hée were found guiltie he was disgraded There be two sorts of Clerkes whereof the one is a Clerke conuict and the other is a Clerke attainted A Clerke conuict A Clerke conuict is hée who praieth his Clergie before Iudgement be giuen against him of death and hath his Clergie allowed vnto him such a Clerke before the Statute of 18. Elizab. might haue made his purgation sauing in certaine especiall cases As a common thiefe could not make his purgation Fi. Cor. 247 notwithstanding that hée were but a Clerke conuict for it is better for the common wealth to haue such an incorrigible person continually to remaine in prison than to goe at libertie to doe more hurt Fi. Cor. 417 And likewise a Monke that was a Clerke conuict should haue béene deliuered to his Abbot to haue remained in the Abbey continually without making his purgation Fi. Cor. 109 147. And also in an appeale if the Defendant had béene conuict by verdict and had enioyed his Clergie as a Clerke conuict he should not haue made his purgation for if hée had made his purgation then the Plaintife in the appeale should haue recouered his goodes without cause for that by the purgation it doth appeare that hée was not guiltie of the felonie A Clerke attainted Clerke attainted is he who praieth his Clergie after Iudgement of felonie giuen of him Such a Clerke could not haue made his purgation for that when he was condemned of felony by iudgement hée could not contrarie to that Iudgement be purged thereof that iudgement remaining in force and therefore there was none other remedy for him but to purchase the Kings pardon or else hée must haue remained in prison during his life And whether this Iudgement of death did follow either vpon Confession before the Coroner Clergie after Confession vpon abiuration or before the Iustices vpon his arraignement or vpon triall by verdict of twelue men if this iudgement were once giuen hée should not after make his purgation And though after his confession of the felony and before Iudgement giuen against him thereupon he doth pray his Clergie he shall haue it and might haue made his purgation for that the confession being before a secular Iudge who is not his Iudge is voide And for that cause the statute of Articuli Cleri cap. 16. doth ground St. 9. E. 2. 16 That an approuer Approuer shall haue the benefit of his Clergie and yet he hath confessed his offence before a secular Iudge And it is not to be interpreted that the benefit of this Statute is to be extended onely to saue the approuers life and not to set him at libertie by making his purgation for then hée should haue but part of the benefit of Clergie and not the whole which is contrary to the saide Statute of Articuli Cleri If an approuer had waiued his appeale holden him to his Clergie he should haue made his purgation Fi. Cor. 128 because the Temporall court doth dismisse him as a man in whom it hath no iurisdiction which waiuer of the appeale did not waiue the confession that hée had made before 27. H. 6. 7 13. E. 4. 3 Fi. Cor. 56 247 And though an approuer in some Cases should not haue made his purgation yet that was in such cases onely where he did not pray his Clergie vntill Iudgement was giuen against him of felonie If one that shall abiure the Realme for felony had come againe into the Realme without the Kings licence whereupon he was taken and brought to the Barre and that it was demaunded of him whie hée should not be put to death and he had demaunded his Clergie and that was allowed yet he should not haue béene deliuered to the Ordinarie but sent to prison againe Fi. Cor. 155 vntill hée had obtained the Kings pardon For Clergie would haue serued him for the felonie but not to excuse the contempt which he made by comming againe into the Realme without the Kings licence But it had béene otherwise if he had prayed his Clergie at the time when he fled to the Church By the entrie into the Roule of the Court which made mention of the prisoners deliuerie to the Ordinarie In whom rested the making of purgation it appeareth that the making or not making of purgation did rest much in the Temporall Court and not in the Ordinarie for if he were not to make his purgation then the entrie was Quod talis commissus est Ordinaria absque purgatione facienda and if hée were to make his purgation then the wordes Absque purgatione facienda were omitted and in all cases where the Temporall court had determined that purgation did not lie as in the case of Clerke attaint or such like if the Ordinarie had admitted the prisoner to haue made purgation and thereby set him at libertie Escape for suffering purgation he should haue bin charged with an escape for the authority whereby he was committed to prison was temporall and he receiued him from the temporall court or otherwise the Ordinary could not haue retained him in prison And therefore the temporall court had somewhat to doe with setting him at libertie out of prison If one had béene conuicted of diuerse felonies and had béene admitted to his Clergie in that case hée ought to haue made purgation for them all But the force of the foresaide Lawes Fi. Cor. 232 touching committing of clerkes to the Ordinary and making of purgation is alterd by the before mentioned statute of Anno 18. Eliz. St. 18. El. 6 whereby it was enacted That euerie person and persons which shall be admitted and allowed to haue the benefit or priuiledge of his or their Clergie shall not thereupon be deliuered to the Ordinarie as hath béene accustomed but after such Clergie allowed and burning in the hand St. 4. H. 7. 13 according to the statute in that behalfe prouided shall forthwith be enlarged deliuered out of prison by the Iustices before whom such Clergie shall be graunted that cause notwithstanding Clergie allowed without deliuery to the Ordinarie Prouided neuerthelesse that the Iustices before whom any such allowance of Clergie shal be had shall and may for the further correction of such persons to whom Clergie shall be allowed detaine and kéepe them in prison for such conuenient time as the same Iustices in their discretions shall thinke conuenient so as the same doe not excéede one yeeres imprisonment Any lawe or vsage heretofore had to the contrary in any wise notwithstanding ⧠The Kings Pardon THe Kings Pardon is a barre to an Indictment
not any release of the appellants made vnto him or any such other matter in discharge of the appeale for he shall come time enough to shew that when the appellant doth appeare vpon the Scire facias And the appellée may haue a Scire facias against the appellant though in the Charter there be not this clause viz. ita quod stet rectus in curia Fi. Char. 17 19 An appeale was brought against a principall and accessorie Non-sute doth not aide an appellee that is outlawed the principall was pursued to an Outlawrie whereupon an Exigent was awarded against the Accessorie returnable at a certaine day at which day the Plaintife was Non-suit in his Appeale and then the Principall came with a Charter of Pardon and prayed allowance thereof for that the plaintife was Non-suite which would not bée graunted by the Court for that the non-suit did not ayde him seeing the appeale was determined before against him by the Outlawrie 20 A man beeing arraigned of felonie pleaded not guiltie 8. Ed. 4. 29 and beeing demanded how he would be tried he shewed forth the Kings protection The Kings protection and said that the same was a sufficient discharge for him and would make none other answere whereupon the Iustices agreed that he should be put to his penance viz. to his paine for t dure And yet at another time Fi. Cor. 239 one béeing found guiltie of felonie shewed the Kings Charter which did not containe any pardon but onely that the King had retained him to goe with him into Gascoigne that was allowed and the Iustices did surcease to procéed any further against him Pardon of a felonie before it was committed 21 A. was indicted for that he did the 13. day of February Plo. com 401. anÌ„ 13. ReginÌ„ Eliz strike B. whereof the said B. died the 18. day of Iune then next following A. vpon his arraignmeÌ„t pleaded the generall pardon by Parliament by which all felonies offences misdemeanours c. in the act not excepted which might bée pardoned before and vntill the 14. day of February were pardoned released and discharged against the Quéene and auerred that neither hee nor the said offence were excepted in the said pardon and praied to be discharged And he was discharged by the said pardon for that the wound giuen by the prisoner was the cause of the felonie the giuing of which wound was an offence misdemeanour against the Crowne the which was pardoned by the Act of Parliament and by that meanes all acts ensuing vpon the same offence were pardoned ⧠Standing mute or answering indirectly AT some time he that is arraigned of felonie is so farre both from making confession of the felonie whereof he is indited and also of pleading not guiltie thereunto that hee will make no answer at all but stand mute of malice and euill will or otherwise plead such matter which is no answer to the felonie whereof hée is arraigned or such a peruerse plea which is no direct answer to the offence whereof he is indited Stand mute or not answering directly Or if he doe answer to the offence yet he will so conclude his plea that the same plea can haue no triall Fi. Cor. 233 283 359 4. Ed. 4. 11 Kel fol. 70. In all which cases he shall be put to his penance for contemning the law and refusing of the ordinarie triall deuised by the law that is to say he shall be put to paine grieuous and durable otherwise tearmed to paine fort dure and as it is commonly tearmed he shal be pressed to death Which paine is called grieuous for that it is so heauie and weightie that hée is not able to endure it and it is called durable because the offendor shall neuer haue ease or reliefe of it but shall die in it 2 The paine grieuous and durable was not at the common law but Felons refusing lawfull triall ordained by the Statute of Westminst 1. made anÌ„ 3. Ed. 1. St. 3. E. 1. 12 whereby it was enacted That notorious felons openly knowne of euill name who will not put themselues vpon enquests of felonies which men doe prosecute before the Iustices at the Kings suit shal be put in hard and strong prison as they which refuse to be tried by the law of the Realme But this is not to be intended of prisoners which be taken for light suspition By which Statute it doth appeare that none shal be adiudged to this paine if there be not euident or very probable matter to conuince him of the offence whereof he is arraigned or otherwise that he is a notable théefe or openly known to be of an euil name which the Iudge ought strictly to examine before hee procéed to iudgement against him â—â—nnance onâ—â— vpon an indictment and not vpon an appeale 3 The iudgement of pennance is only to be giuen when a prisoner is arraigned at the Kings suit and not where he is arraigned at the parties suit 21. Ed. 3. 18 for the words of the Statute be and will not put themselues vpon enquests of felonies which men do prosecute before the Iustices at the Kings suit and therefore in an appeale prosecuted at the suit of the party the iudgemeÌ„t of pennance viz. of paine grieuous durable shall not be giuen but another iudgement that is to say that the offendor shal be hanged And an offendor shal haue this iudgement of pennance at the K. suit 40. Ass p. 40 although that suit be begun before his due time viz. within the yeare after the offence committed where the king ought to haue taried vntill the yeres end for the interest of the party who was to pursue his appeale within the yeare Pennance for piracie 4 If a man be indicted and arraigned before Commissioners to heare and determine for Piracie and Robbery committed vpon the sea 7. El. Dyer 242. and he wil stand mute and not answere directly he shall haue iudgement of pennance viz. of painefort dure and that is by force of the statute of Anno 28. H. 8. St. 28. H. 8. 15. which hath ordained That all Treasons Felonies Robberies Murthers and confederacies committed vpon the Sea or in any other Hauen Riuer Créeke or place where the admirall hath or pretendeth to haue iurisdiction shal be inquired heard cried determined and iudged in such shires places in the realme as shal be limitted in the kings Commission or Commissions to be directed for the same in like forme as if any such offences had béene committed vpon the land And such Commissions shal be had vnder the great Seale directed to the Admirall or his Lieutenant and Deputy and to thrée or foure such other as shal be appointed by the Lord Chancelor as often as néed shal require to heare and determine such offences after the common course of the laws of this land vsed for Treasons Felonies Robberies Murthers and
a possession in the stolne goods for the owner of these goods hauing not prosecuted and giuen euidence against the offendor to attaint him of Felonie either by Appeale or Indictment can neither haue restitution of these goods by the common law nor by force of the Statute of 21. H. 8. 11. 14 In the time of King Edward the second it was holden for law That if a wife did kill her husband Forf where a woman killeth her husband and after did flie all the goods within the house and without the corne in the barnes and yard and that which was growing on the ground should be confifcat and forfeit to the King And their reason was for that when the husband is killed and no will was made by him of his goods they ought to remaine to his wife and then shée being in case that by the committing of this treason shee cannot haue them Anno 8. E. 2 Fi. Cor. 423 they bee forfeit to the King and confiscat But that law séemeth to bee altered by the Statute of Anno 31. Ed. 3. which hath ordained That where a man dyeth intestat the Ordinarie shall depute the next and most lawfull friends of him which dyed intestat to administer his goods And moreouer St. 31. E. 3. 11. St. 21. H. 8. 5 by the Statute of 21. H. 8. it is further enacted That if any person die intestat or the Executors named in any such Testament refuse to proue the sayd Testament then the Ordinarie or other person or persons hauing authoritie to take probate of Testaments shall graunt the administration of the goods of the Testator or person deceased to the widow of the same person or to the next of his kinne or to both as by the discretion of the same Ordinarie shall bée thought good taking suertie of him or them to whom shall be made such Commission for the true administration of the goods cattels and debts which he or they shall be so authorised to administer By which two Statutes it doth appeare that the law doth not cast the interest of the husbands goods dying intestat vpon the wife nor giue her such a title thereunto as shée may either possesse alien or forfeit them vntill she be authorised by the Ordinarie And in the meane time betwéene the husbands death and that the administration of the goods of the intestat be graunted to some person or persons the interest of the goods is in the Ordinarie as appeareth by the Statute of Westminst 2. 13. Edward 1. 19. P. 10. Ed. 4 1 15 If hée that is made Executor Executor shall not forfeit his Testators goods or which hath taken letters of Administration of the goods of one which dyed intestat be attainted of Treason or felonie he shall not forfeit the goods of the Testator or intestat because those goods bée the Testator or intestats goods in his custodie and he hath not them to his owne vse but a right of disposing of them towards the performance of the Testators will or to pay the intestats debts And whereas the law doth allow a woman couert to make a will and to ordaine her husband her Executor thereof or to make any other person her Executor by her husband consent of her Parophanalia 39. H. 6. 27. 12. H. 7. 22. 18. E. 4. 11. 4. H. 6. 31. or Iewels of value and of such debts as were due to her as Executrix to another and of such Obligations Recognisances and other specialties as were before mariage made or acknowledged vnto her and of such goods as were taken wrongfully from her before the mariage betwéene her husband and her for the recouerie whereof the husband may haue his actions as Executor to his wife but not as husband to his wife neither would they euer haue béene recouered if she had not made an Executor and when they bee recouered the Executor shall stand chargeable to others for debts due and payable by his wife so farre as the same goods recouered will extend In this case if the husband or that other which is made Executor to the woman couert M. 33. H. 6. 31. shall bée attainted of Treason or Felonie the goods of the wife or the money recouered shall not bée forfeited to the king because the Executor hath them but towards the performance of the womans will and to satisfie those debts and legacies which shee did stand charged to pay 16 If any person that is ioyntenant Iointenants forfeiture or tenant in common with another of goods bee attainted of Treason or Felonie the whole goods shall bée forfeited to the King And if a lease for the terme of yeares be made to the husband and wife of certaine landes Fitz. Trauerse 33. 50. Ass p. 5. Ps Com. 258. and the husband bée attainted of Treason or Felonie the whole terme shall bée forfeited to the King And likewise it is of felo de se if a lease bée made to him and his wife for the terme of yeares hée shall forfeit to the King the whole terme 17 The law in some cases doth giue another title to the King of goods that late were another persons and doth not terme it a forfeiture but a confiscatition of goods Confiscation of goods and that is when the goods were not claimed or title pretended vnto them by any other Fitz. Cor. 355. 368. As if a man be indicted for the felonious stealing of another mans goods where in truth those goods were his owne and the goods be brought into the Court as a manoure against him and it is asked of him whose those goods be and he doth disclaime to haue any propertie in them by this disclaimer he shall loose the goods Confiscation by disclaimer in his owne goods though they were his owne and though he be acquit of the felonie the goods by this disclaimer shall bee confiscat to the King but if he had not disclaimed in them Fitz. Cor. 391. the goods should haue béene restored vnto him Confiscation by disclaiming in the goods of others 18 If goods be found in the possession of a felon which he doth disauow Fi. Cor. 368. and after he is attainted for the stealing of other goods but not of those In this case the goods which he did disauow shal be confiscat to the King But if hée had béene attainted for the stealing of those goods Fitz. Forf 24. they should haue bin termed goods forfeit and not goods confiscat Confiscation of goods left out of an appeale 19 If one doe bring an Appeale of Robberie against a felon and leaueth out of his Appeal some part of the goods robbed Fitz. Cor. 100. Co. li. 5. 110 in this case the King shal haue those goods which be left out of the Appeale for the plaintife cannot enlarge his Appeale nor recouer those goods left out And therefore séeing the felon can make no executor nor any can be administrator
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
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
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
be graunted vpon an inquiry according to the stat of West 2. So that if the abettors be not distrainable the def in an appeal shal be without any remedy And further the damages which the abettors are to pay by force of the said statute of West 2. be the dammages that the defendant hath recouered against the appellant which dammages the abettors are to pay for the defendant or for his insufficiencie or nonabilitie and not for themselues And so it may be said that they may satisfie for themselues in a writ of Conspiracie to be brought against them or otherwise their offence shal be vnpunished Conspiracy maintenable vpon acquitall in an appeale or indictment And therefore notwithstanding the said statute of West 2. a Writ of Conspiracie doth lye at this day as well where the defendant is acquited vpon an appeale as where he is acquited vpon an Indictment And accordingly there is a Writ of Conspiracie in the Register deuised for that purpose 33. H. 6. 2. 40. Ed. 3. 42 22. As p. 39 14. H. 7. 2. amongst other Writs of Conspiracie But in an appeale founded vpon an indictment if the defendant be acquite vpon the appeale he shall not haue a Writ of Conspiracie because it cannot be intended to be founded vpon malice when it is founded vpon an Indictment And likewise if an Appeale be founded vpon an Indictment although the appellant be Non-sute after declaration and the defendant be arraigned and acquite at the Kings suit yet the defendant shall not haue a Writ of Conspiracy causa qua supra 3 He against whom a Writ of Conspiracie is to be brought The indictment must be false which giueth the writ of Conspiracy must be charged that he conspired with others to indict the plaintife falsely and maliciously without any good or lawfull cause 22. As p. 77 Fi. Cōsp 21. 24. or els the Writ will not lye and therefore if by the conspiracie of two or moe one is indicted of Murther and vpon his arraignement it is found that he did kill the man in his owne defence or by misaduenture or by any other meanes which by the Law is iustifiable he shall not haue a Writ of Conspiracie for the Indictment was framed vpon good cause viz. the death of a man and neither vpon falsehood or malice and in like sort if he that is indicted or appealed of Felony doth purchase his Charter of Pardon thereof and pleadeth it he shall not haue a Writ of Conspiracie for by that pardon sued he doth in a sort confesse the committing of the felonie and so cléere the falshood or malice of any which did deuise to indite him And yet notwithstanding the obtaining of his pardon he may waiue it and plead not guiltie and then if he be acquit of the felonie he may haue his writ of conspiracie 11. H. 4. 40. 7. E. 6. Dyer 85. 28. H. 8. Dyer 28. But if the pardon be by act of Parliament he cannot waiue it for the Iustices ought to allow him his pardon without pleading of it if it be a generall pardon 33. H. 6. 2 4 If two be indited or appealed of felonie the one as principall A conspiracie doubtfull and the other as accessorie and the principall hath his charter of pardon or doth die before he be attainted the accessorie shall not haue a writ of conspiracie against the parties that sued the appeale or deuised to indite the principal and him for that it is not yet discussed but standeth indifferent whether the conspiracie were false or true 21. E. 3. 17 7. H. 4. 31. 27. Ass p. 12 30. Ass p. 21 22. Ass p. 77 5 If after a conspiracie for an inditement agréed vpon The conspirators doe become indictors to be preferred by two or more the same conspirators be sworne vpon an Enquest to enquire of felonies and they with the residue of the Enquest that be sworne with them do indict him of felony against whom they did before conspire in this case he shall not haue a Writ of Conspiracy against them because it cannot be intended false and malicious when they did it by vertue of their oathes and also did it with others besides themselues And the same Law is if after the conspirators be sworne vpon the Enquest of inquirie and haue spoken and conferred with their companions the Iustices shall remooue them from the Enquest yet in that they were once sworne and the conspiracie thereby discharged this remoouing them from the Enquest which commeth after 20. H. 6. 5. 35. shall not make them to bée againe in danger and charge of the Writ of Conspiracie And so it is of a Iustice of Peace A Iustice of peace he shall not be charged by a Writ of Conspiracy for any thing which he doth in open Sessions as a Iustice of Peace 27. Ass p. 12 12. E. 4. 18 21. E. 4. 67. 47. Ed. 3. 17. for he is a Iudge of record and sworne to execute his office duly and may informe for the kings benefit and to punish offendors as well as he can But the Law is méere contrary if one who is no Iustice of record doth it for he shal be charged by a Writ of Conspiracy if he do it with others And in like sort 35. H. 6. 14. 27. As p. 12 20. H. 6. 5. 9. H. 4. 11. 21. H. 7. Kel 81. if one doth come into the Court A giuer of Euidence and discouereth a felony and is sworn and doth giue euidence to the Enquest he shall not thereupon be charged in conspiracie if he doth not before conspire with others falsely and maliciously In a writ of Conspiracy the def pleaded that when the Iurors had taken their oathes vpon the indictment he was sworn to informe them But because an act done by him only without others cannot be said to be any conspiracy 35. H. 6. 14. 27. As p. 12 and so was no answer to that wherewith the plaintife charged him for that cause he wayued his plea and pleaded not guilty for he that is to be charged with a conspiracy must be charged in respect that he did it with others and falsely and maliciously Who be conspirators 6 And for that it might be knowne to all men whom the Law did construe to be conspirators and were worthy to be punished as conspirators Therefore there was a stat made An̄ 33. Ed. 1. which defineth them in this manner viz. St. 33 E. 1. Conspirators be they which bind themselues by oath couenant or other alliance that euery one shall helpe and maintaine others purpose falsely and maliciously to indict or to moue and maintaine suites and also that cause infants to appeale others of felony whereby they are imprisoned and much grieued and such as retaine men in the country with liueries or fées to maintaine their leud enterprises and to subuert the truth as wel the takers as the giuers
And Stewards and Bailifes of great Lords who by their seigniory office or power doe vndertake to maintaine or vphold other quarrels or suites then such which concerne their Lords or themselues A conspiracie must be by more then one 7 The foresaid statute doth define conspirators to be those St. 33. E. 1. which bind themselues by oath c. By which words it doth appeare that a conspiracy cannot be committed by one person alone but by two at the least and therefore this Writ of Conspiracy will not be maintained against one alone though it were begun against diuers for as soone as it shal appear 28. Ass p. 12 22. Ass p. 77 11. H. 4. 162 that all but one be discharged therof by their discharge that one shal also be discharged But this discharge ought to be such a one as may be a discharge to all intents as acquitall of all by verdict sauing one is an acquitall of that one also And so it is if al but one be discharged by matter in Law as if they plead that they were indictors or such like matter in Law which will discharge them for in those cases they be acquit of the conspiracie to all intents But if in a writ of Conspiracie sued against two 14. H. 6. 25. one of them is attainted and the other doth barre the plaintife by a demurrer in law yet that shall not discharge the other which is attainted Where one only charged in Conspiracy if the barre both not containe matter to proue that he did not conspire or could not conspire And so it is if in a writ of Conspiracy brought against two the one doth appeare plead and his plea is found against him in this case iudgement may be giuen against him 24. E. 3. 34. though the other be not attainted and yet in that case some doe affirme 27. E. 3. 80. that in a writ of Conspiracy against two one of thē shall not answere vntill his companion doth appeare for the inconueniency which may ensue viz. that the one may be foūd guilty and the other after may be acquit of the same conspiracy But if he that did first appear wil plead without his companion though the law doth not inforce him thereunto and that the verdict do passe against him and he found guilty of the conspiracy iudgement shal be giuen against him as is aforesaid though after his companion be acquited of the same conspiracy Nam volenti non fit iniuria 8 As a writ of Conspiracy will not lie against one person only no more wil it be maintained against two who do represent but one person No writ of Conspiracy against the husband and wife as the husband and wife 40. Ed. 3. 19. 38. E. 3. 3. for a writ of Conspiracy is not to be brought against them séeing the husband and wife by common intendment ought to haue but one will which will of the wiues is or should be subiect to the will of the husband So that when they conferre and speake together all shall be intended the spéech and act of the husband and nothing of the wife But it is otherwise if she do any act alone without her husband as if she doe commit Treason or Felony c. But a writ of Conspiracy will lye against the husband Fi. N.B. 116. L. his wife and a third person 9 The common forme of the writ of Conspiracy in the Register is this The forme of the writ of Conspiracie viz. Register fo 134. Rex vice comiti N. Salutem c. Si A. fecerit c. tunc pone c. B. C. quod sintcoram nobis c. ostensuri quare conspiratione inter eos apud M. praehabita praefatum A. de quodam equo furtiue apud R. capto abducto indictari ipsum ea occasione capi in prisona nostra N. quousque in curia nostra coram dilectis fidelibus nostris I. S. iusticiarijs nostris ad Gaolam nostram N. deliberandam assignatis secundum legem consuetudinem regni nostri acquietauts fuisset detineri falso malitiose procurauerunt ad graue damnum ipsius A. contra formam ordinationis in huiusmodi casu prouisae Et habeas ibi nomina plegiorum hoc breue Teste c. Which foresaid writ is founded vpon a verdict but if it be a writ of Conspiracy founded vpon the plaintifes Nonsute in an appeale then the words of the writ be these viz. Quousque idem A. per considerationem curiae nostrae inde quietus recessit Though in the Writ of Conspiracie it is not alledged 35. H. 6. 46 that the place where the Conspiracie was deuised was within the Countie and within the iurisdiction of those Iustices before whom the plaintife was acquit yet the writ is good notwithstanding the omission of that allegation for it shal be intended to be made within the same county vntil the contrarie shal be shewed But it must néeds be expressed in the writ before which Iust the acquitall of the pl. was 3. H. 6. 52. but not the manner of the acquitall nor how hée was acquited And neither in this writ nor in other writs of Conspiracie mentioned in the Register all the indictment néed not to be rehearsed 19. H. 6. 34. 47. Ed. 3. 16. but briefly the substance thereof and it is sufficiently in forme if the writ of Conspiracie doe agrée with the indictment which it ought to do 10 In the Register there is a writ of Conspiracie for the Accessorie A writ of conspiracy for the accessorie in felonie when hée is acquit by verdict and another writ for him vpon the acquital of the Principall if his life were put in ieopardie by the same Enquest that acquited the principall but yet these two writs doe differ in forme for the first is Quousque coram praefatis Iusticiarijs nostris inde secundum legem consuetudinem nostram acquietatus fuit And the other is Quousque principal ' secundum legem c. acquietatus fuisset idem accessorius quietus recessit And it is sufficient 33. H. 6. 1. if in the writ brought by the accessorie hee make mention of his owne imprisonment and not of the principals And this forme of quietus recessit is vsed also when a writ of Conspiracie is brought vpon an acquitall in an Appeale at the Kings suit after the parties nonsuit 22. H. 6. 49. In a writ of Conspiracie the plaintife may suppose that the conspiracie was made in two Townes Conspiracy in two townes because in one day the Conspirators may meete in seuerall Townes Barres in conspiracie 11 In a writ of Conspiracie it is a good plea for the defendants to plead in barre of the Action a concord betwéene the plaintife and them And so it is to plead any matter which will proue the acquitall of the plaintife erronious 21. H.
he was buried may be amerced for it Fitz. Cor. 329. Britton 4. 21. E. 4. 70. 2. R. 3. 2. by the Iustices in Eire vpon the sight of the Coroners Rols And yet notwithstanding the Coroner must digge the bodie out of the ground and make his enquirie vpon the sight of the bodie as he should haue done if it had not béen buried If one be indicted before the Coroner vpon the sight of the body and then the body is by the Coroners commandement buried and after for that the indictment is not sufficient the Coroner doth take the body out of the earth A body buried taken vp againe and indict the offendor againe this is lawfully done being vpon the sight of the bodie though the bodie had béene buried fouretéene dayes before If a dead bodie that is slaine or sodainely dead Fi. Cor. 339 be suffered to lye vpon the ground vnburied to putrifie or to yéeld an euill sauour without sending for the Coroner the towne where the same bodie did so lye vnburied Fi. Cor. 421 Britton shall bée amerced And likewise if a prisoner do dye in prison and the kéeper of the prison doth not send for a Coroner he shall be amerced And though a Coroner shall make a record of his owne view St. 9. H. 3. 17 and enter the same into his roll Pleas of the Crowne yet by the statute of Magna Charta no Coroner Sherife Constable Escheator or other Bailife of the K. shall hold pleas of the Crowne St. 3. Ed. 1. 9 The said statute of West 1. ordaineth The Coroner must presently do his office That if any Coroners be aduertised by the Kings Bailifes or other honest men of the countrey they shall presently come and make inquisition whereby it appeareth that if the Coroner shall be slacke and negligent in comming to doe his office after the Bailifes or men of the countrey haue sent for him he shall be punished And if he omit to doe his office Fitz. Cor. 292. as to make inquirie of or to enter into his roll the death of a man or any other thing which by the law he is to doe or make a record of hée shall bée committed to prison And by the statute of Anno 3. H. 7. St. 3. H. 7. 1. If any Coroner be remisse in viewing of a dead bodie murdered or slaine Coroners shall inquire and certifie at the gaole deliuery and do not enquire of them that haue done the murder or death of their abettors and consenters who were present thereat and their names or so found doe not inroll certifie and deliuer his inquisition to the Iustices of the next gaole deliuerie in the Shire where the inquisition is taken that the same Iust may procéed against such murderers if they be in the gaole or else certifie the inquisition into the K. Bench the said Coroner shall forfeit to the King for euery offence v. l. St. 3. Ed. 1. 35. H. 6. 27 10 The foresaid statute of West 1. as touching inquisition The Coroner shall inquire onely of the death of a maÌ„ doth only extend to a dead person whereby it séemeth that a Coroner cannot inquire of any other felony but of the death of a man Sauing that in Northumberland the Coroner doth inquire of all felonies But that authoritie they maintaine by prescription A presentment was made before the Coroner that a felon being apprehended for stealing was led to a church by certaine persons and this was adiudged a void presentment 27. Ass p. 55 because he cannot inquire thereof by vertue of his office but if he had receiued the kings writ or commission to haue made inquirie thereof hée might haue done it And yet some do affirme that he may inquire of the rape of a woman and of breaking of prison being other felonies different from the death of a man and of Sturgeon and Whales taken If a man be slaine in the armes or braunches of the sea Slaine in an arme of the sea where one may sée the ground on both sides the Coroner shall inquire thereof and not the Admirall because the countrey may take knowledge thereof which prooueth Fi. Cor. 399 that by the common law the Admirall Admirall had no iurisdiction but vpon the mayne Sea before the Statute of 13. R. 2. 2. H. 4. were made St. 13. R. 2. 5 2. H. 4. 11. And though the Coroner cannot enquire of any other felonies but of the death of a man yet by the Statute of West 1. made Anno 3. Ed. 1. it was ordâ—ined St. 3. Ed. 1. 9 That if the Sherife Coroner or any other Bailife within Franchise or without for reward A Coroner concealing a felon or not arresting him intreatie 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 will not do their offices for the fauour that they beare to such offendors and be thereof attainted they shall be one yeare imprisoned and make a grieuous fine And if they haue not whereof to make fine they shall be thrée yeares imprisoned So that a Coroner may attach or arrest any maner of felon whatsoeuer though he cannot inquire of him 11 It is contained in the before specified Statute of Westminst 1. That all things ought to bée inrolled in the Rolles of the Coroner Which prooueth that the same inrolment is the Coroners Record The force of a Coroners record and that the sayd Record is of great force for if the thing inrolled be within the compasse of the Coroners authoritie it shall be of greater credit than the Record of any other Bro. Cor. 351. For if a thing be found before the Iustices in Eyre contrary to that which was entred into the roll of the Coroner The first Coroner it shall be void Fitz. Cor. 107. And the Record of the first Coroner viz. the Record of him which first sitteth vpon the view of the bodie shall be preferred before the Record of the second Coroner who doth after sit and inquire of him If a man become an Approuer Approuer before the Coroner Fitz. Cor. 118. and doth appeale others he shall dot be receiued to say after That he did it by dures Dures of imprisonment but shall bée estopped thereof by the Coroners Record And in like sort if one hath abiured the Realme before the Coroner Abiuring before the Coroner 12. As p. 29. Fi. Cor. 124 and after doth returne and is arraigned and doth plead that he is not the same person if in this case the Coroner doth record him to be the same person he shal be condemned And the same law is if a man be arraigned of breaking of prison Confession of breaking of prison 25. E. 3. 42. Fitz. Cor. 243. 435. he shall be estopped to plead not
Maintenance in respect of neighbourhood 35 In what cases the master may maintaine his seruant In what cases the seruant may maintaine his master Deceit Couin Collusion Fraud Fol. 67. 1 The multitude and enormities of deceits and frauds 2 The reward for paines and punishment for deceits of officers towards the Law A Iudge A Clerke A Serieant A Pleader A Philozer An Exigenter No office of Iustice shall be sold or bought No man shal be Iustice of Assise in his owne County 3 Who shal be Atturneyes Sollicitors The penalty for following a suit in anothers name What acts done by Atturneyes in seuerall cases shall bee adiudged deceit 4 The Law reiecteth deceitfull and fraudulent acts A fine leuied of land to defraud the right owner thereof shall bee void 5 A fine leuied of auncient demesne land to defraud the Lord of his Seigniorie is voidable 6 How a recouery of land by deceit shal be auoided 7 A Scire facias vpon a recouery by deceit auoided A recouery of debt by deceit auoided A iudgement to auoid the meaning of a Statute The executors shall haue remedy for a deceitfull recouery against the Testator 8 Deceit vpon a recouery in a Quare impedit Deceit vpon a recouery in wast 9 Deceit vpon a recouery in a Praecipe in capite 10 Where a good Title shal be impaired by a couenous recouery thereof 11 A Warranty deuised by deceit 12 Deceit by getting of a Protection 13 Deceit by purchasing of a writ to charge another 14 Deceit by purchasing of a writ in anothers name Deceit for procuring one to sue another 15 Deceit by acknowledging of a statute in anothers name Deceit by doing of a iudiciall act in anothers name 16 Deceit by forging of a resignation of a Benefice 17 Deceit by conueying of land to one man which before was bargained to another 18 Deceit by not performing of his Warranty 19 Deceit by confession of an action wherein hee hath no interest 20 Deceit by the aliening of the goods of his wife from whom hee meaneth to be diuorced 21 Sale of goods in open Market by deceit and couin 22 A fraudulent assurance to defeat the discontinuee in tayle of his plea of Assets per Discent 23 Fraudulēt assurance to defeat a Lord of his Ward Marriage c. 24 He that is not partie to a fraud shall sustaine no losse by it 25 Deceit collusion to bring land into mortmaine Lands assured in mortmaine to Churches Chappels c. Collaterall assurances to defraud c. Which be charitable and lawfull vses 26 Couin by a particular Tenant to deceiue him in the reuersion 27 Couin by him in the reuersion to deceiue the lessee for yeares Couin to auoid a Statute or Recognizance 28 Fraudulent deeds to auoid other mens duties c. The forfeiture of parties to fraudulent deeds who doe iustifie the same Common recoueries Voucher in Formedon Estates made vpon good consideration and bonafide 29 Fraudulent deedes to auoid forfeitures shal be void 30 A deed without fraud must be made vpon good consideration and bonafide Infallible marks of a fraudulent deed of gift How a deed of gift may be made without fraud 31 Fraudulent assurances to deceiue purchasors The forfeiture of parties to fraudulent conueyances which do iustifie the same Conueiances made vpon good considerations and bona fide Conueiances with condition of reuocation or alteration Morgages 32 A purchasor doth know before of a fraudulent deed 33 The father maketh a fraudulent lease and the sonne selleth the land 34 A womans iointure made by fraud 35 Fraudulent deeds to auoid successors of dilapidations 36 An action popular sued by collusion and fraud 37 Fraudulent possessing of Bankrupts Lands Goods or Debts 38 Fraudulent administration of intestate goods 39 Fraudulent conueyances of Abbey lands 40 Seuerall deceits and frauds in marchandizes and men of trade 41 Deceit by selling of vnholesome victuall Extortion Exaction Fol. 82. 1 What is Extortion What is Exaction 2 Exaction by taking of reward for a report 3 Extortion in the Shirife Coroner or other officers 4 Extortion in a Serieant Crier or Marshall of a Iudge 5 Extortion in a Coroner 6 Extortion in a Sherife vnder-Sherife or Baylife for making of arrests c. 7 Extortion in a Sherife for sparing to returne a Iuror 8 Extortion in a Sherife for the seruing of an Execution 9 Extortion in the Chirographer of the common place 10 Extortion in the kings auditors or their Clerkes 11 Extortion in the Kings Receiuers Extortion in them who do pay fees or pensions 12 Extortion in officers of the Exchequer 13 Extortion in a Clerke of the Signet or priuy Seale 14 Extortion by officers of the faculties 15 Extortion by Gouernours vpon such as be made prentices or freemen 16 Extortion by the officers of the Court of Wards 17 Extortion in taking of Obligations for the payment of first fruits 18 Extortion by Escheators 19 Exaction by the Admirall c. vpon them who trauaile for Fish 20 Extortion by the marshall of the kings house Extortion by a seruitor of bills in the marshals Court. 21 Exaction by Muster-masters to spare the taking of souldiers Exaction by captaines of their souldiers 22 Extortion by taking of Scauage of Marchants 23 Extortion by the Clerke of the Statutes or c. 24 A preuention of extortion by atturneyes in taking of excessiue fees An atturney delaying of a suit or demaunding more then is due 25 A preuention of Extortion in stewards of Courts 26 Extortion in gaugers searchers and packers of fish Extortion in Ordinaries and their Officers for probat of Testaments Administrations c. 28 Extortion in an Ordinarie for the seale of a Citation 29 Extortion in Parsons Vicars c. for Mortuaries 30 Exaction for presenting or collating to a benefice 31 Exaction for admitting to a benefice 32 Exaction for resigning or exchanging of a benefice 33 Exaction for making of ministers or giuing licence to preach 34 Exaction for a voice in electing of a fellow or scholler into a Colledge or c. 35 Exaction by taking money to resigne a place in a Colledge c. 36 Exaction by gathering money which should discharge the fifteene of a Towne 37 Extortion by taking of an amerciament in a Court Baron 38 It is no Extortion to take lawfull fees Taking of barre fees of a prisoner discharged Taking of gloues of an offendor pardoned 39 Extortion by taking of fees of him who doth appeare gratis Oppression Fol. 91. 1 What Oppression is Oppression by disseisins Of what things one may bee disseised 2 Oppression by approuement of common Oppression by surcharge of common 3 Oppression by distresses Powndage money Distraining out of his fee. Excessiue distresse Seuerall distresses for one thing Distresse for damage fesant 4 Oppression by trespasses 5 Oppression by Nusances 6 Oppression by Rescous 7 Oppression by encroachments 8 Oppression by excessiue amerciaments 9 Oppression by committing of wast Wast in land Wast
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
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
learned in the law to plead for him or to say any thing in his behalfe in the same plea vnlesse it be in an appeale which is the suit of the partie for when the offendor is put to answer to an inditement of treason or felonie he must answer it in proper person and not by atturney or councel learned For this plea of Not guiltie doth tend to the fact that which the party himselfe doth best know and therefore hee can best make answer vnto it And if his councell learned should plead his plea for him and defend him it may be that they would be so couert in their spéeches and so shadow the matter with words and so attenuate the proofs and euidence that it would be hard or long to haue the truth appeare Also if the partie himselfe defend it peraduenture his conscience will pricke him to vtter the truth or his countenance or gesture wil shew some tokens thereof 9. Ed. 4. 2. or by his simple spéeches somewhat may be drawne from him to bolt out the veritie of the cause which would not be wonne of men learned in the law who indeauour to speake prouidently and artificially which be the causes that the offendor shall answer in his owne person and not by councell learned And yet if the plea of the partie indited be such that it doth excéed his learning and knowledge to answer 1. H. 7. 15 12. El. Dyer 296. 7. H. 4. 36. and plead vnto Where councell shal be allowed Informing the Court of a default then hee shall haue learned councel assigned vnto him though it be against the King And one that is in the Court at the time of the inditement or arraignment of a prisoner may as Amicus Curiae informe the Court that there is a defect in the inditement to the benefit of the prisoner ⧠Triall by Battell THere is an auncient triall of the plea of Not guiltie by the common law much vsed in former ages which is triall by combate viz. by Battell which triall the defendant in an Appeale of felonie may choose and combate with the Appellant for the triall if he be guiltie or not of the felonie whereof the appellant hath commenced his appeale against him And if the Appellée hath so good successe in that battell that he doth therein vanquish the appellant he shall barre him of his appeale for euer And though this triall by battell is not so much in vse as it was in the raignes of king Edward the 3. king Richard the 2. and king Henry the 4. yet is it at this day lawfull Triall by battel or by the countrey and not so much disused but it may be put in practise in an appeale if the defendant will and that there be no lawfull counter-plea thereof Or else the defendant in an appeale may at his choyce plead not guiltie and referre himselfe to be tried by the countrie This triall in an appeale by battell shall be betwéene the appellant and the appellée themselues in their own persons and not by Champions as it is in a writ of right And this triall by battell is an auncient law of this realme 37. H. 6. 3 it is also put in practise and allowed by the ciuill law which it is thought the Romans learned and embraced euer since that renowned combate that was fought in the time of Tullus Hostilius third king of the Romans and of Metius Suffetius dictator of the Albans Tit. Liu. l. 1 betwéene the thrée brethren Horatij Romans and the thrée brethren Curiatij Albans by the consent and in the presence of both the Captaines and Armies for the perpetuall gouernment of both the kingdomes wherein M. Horatius vanquished and slew in the field the thrée Curiatij who presently before had killed his other two brethren and by that meanes obtained to the Romans the perpetuall gouernment of the citie and countrey of the Albans and deliuered his owne nation from continuall seruitude The forme of trial by battel 2 The order and forme of triall by Battell is this when the defendant in an appeale hath pleaded not guiltie ready to defend the same by his body hee must cast his gauntlet into the court and if the Pl wil reioyne to the Battel hée must take vp the Gauntlet Fit Cor. 385 But if the Plaintife will counterplead the Battell then hée must let the Gauntlet lie and then the Defendant may demurre in law thereupon if he do let his gauntlet lie If it be in an appeale of death and that the appellant and the appellée doe ioyne in wager of Battell the Appellant shall rehearse his appeale word by word as he did at the first and the appellée shall likewise make his defence as he did at the first and then the defendant shall wage the battel in this manner 17. E. 3. 2. 17. Ass p. 1 9. H. 4. 4 viz. Thomas the appellée shall with his left hand take I. the appellant by the right hand and lay his owne right hand vpon a booke and say thus Heare you this you man which doe call your selfe Iohn by your name of Baptisme that I man which doe call my selfe Thomas by name of Baptisme such a day and such an year did not kill William your father by name as you doe surmise neither am I guiltie of this felonie so helpe me God and shall kisse the booke and this I will defend against you by my bodie as this Court will award And after I. the Appellant shall with his left hand take T. the appellée by the right hand and lay his owne right hand vpon the Booke and say in this manner Heare you this you man which by name of Baptisme doe call your selfe Thomas that you furiously such a day and in such a yeare did kill William by name my Father so helpe me God and shall kisse the Booke and this I will iustifie against you by my bodie as this Court will award And the Court shall appoint them a day to make their combate and the appellée shall put in pledges to the Court to performe the battell and to defend himselfe and the plaintife shall put in pledges to deraigne the battell at the day assigned And the Appellant shall goe at libertie and the appellée shall bée kept in prison at ease and haue sufficient meat and drinke And the Marshall shall apparell the appellant and the appellée both alike at their owne costes the night before the combate shall be fought to the ende that they may bee in the field the next morning ready to performe the combate by the sunne rising And the appellées head shall be polled but not the appellants and the Marshall shall bring them attired into the field ready to performe the Battell Which combate shall be tried before the Iustices 19. H. 6. 15 Br. Battel 16 Bracton de cor ca. 21 who shall cause Proclamation to bée made when they be set and the Appellant and the
32 Pledges in Appeale of Rape 33 Within what time an Appeale shal be commenced 34 From what time the yeare shall haue relation 35 The yeare shall haue relation from the offence done 36 Within what time an appeale of Rape shal be commenced 37 In what County Appeale shal be brought 38 In what county an Appeale of Rape shal be brought 39 In what county an Appeale of Robbery shal be brought 40 Threatening in one county to bring money into another 41 Goods robbed carried into diuers Counties 42 Before whom an Appeale shal be brought 43 Remouing an Appeale out of the County 44 An Appeale before the Iustices of Gaole deliuery 45 An Appeale before the Iustices of the Kings Bench. 46 An Appeale against one bayled No Appeale against him that is let by mainprise 47 Appeale before Iustices of Peace 48 Appeale before the Constable and Marshall No Appeale in Parliament 49 Diuers Appeales for one felony 50 One onely Appeale for one Felony 51 Where diuers Appellees for one Felony 52 Two Appeals founded vpon one Felony 53 Robbery of seuerall parcels of goods 54 Where one shall answere to diuers Appeales or Indictments 55 Answere to diuers Indictments as well as to Appeales 56 He that hath his clergy shal answere to an Appeale of former offences 57 A Clarke shall answere to a former Appeale or Indictment of former offences 58 Proces in Appeale before the Coroner 59 Proces vpon an Appeale or Indictment 60 Proces against indictors in another County 61 Proces against Appellees and Indictees in forraine Counties 62 Proces vpon an Appeale remoued into the Kings Bench. 63 The party appealed must be supposed to be of a forraine countie 64 An appellee dwelling in no place certaine 65 Proces into a County Palantine 66 Proces against Principall and Accessarie 67 The Statute of West 1. extendeth onely to Appeales commenced by Bill 68 In Appeale one appeareth and others make default 69 Proces to remoue an Appeale 70 A Certiorari into the countie 71 Proces against the plaintife after an appeale remoued 72 Proces against the defendant after an appeale remoued 73 Proces against one that by the Shirifes returne escaped 74 Proces with a prouiso for the appellee 75 Proces to remoue prisoners or records 76 How the appellee shall bee led to the barre 77 Count in an Appeale An Appeale of Murther The yeare day houre time of the king and the towne materiall 78 The place where the fact was done 79 Count in an Appeale of death against three as principals The fact must be declared 80 Count in an Appeale of Robbery 81 Where in an appeale of Rape the Statute must be rehearsed in the Count and where not 82 Defence in an Appeale 83 Pleas to the Writ in Appeale 84 The forme of the Writ in an Appeale of Rape This word Rapuit materiall 85 Not two Appeales for one offence 86 Pleading of one in an Appeale brought against two 87 The plaintife in an Appeale misnamed 88 Two or three pleas to the Writ 89 Barres in Appeale Barre in Appeale of death brought by the wife 90 Barre in Appeale of death brought by the heire 91 Barre in Appeale of Rape or Robberie 92 Generall pleas in barre in Appeale 93 Barre for that the plaintife brought another Appeale 94 Barre by the plaintifes release 95 Pleading not guilty after other pleas 96 Where the king may prosecute an Appeale begun 97 No Appeale of Treason Indictments Fol. 169. 1 Commissions to Sherifes to take Indictments 2 When the Sherife shall hold his Turne An Indictment found in an vnlawfull time 3 Sherifes shall enquire by xij men at the least 4 Indictment before the Sherife shall bee by Roll indented 5 Of what sufficiencie Iurors returned in the Sherifes Turne shall be 6 Indictments taken in the Shirifes Turne shal be deliuered to the Iustices of Peace 7 Iurors in Indictments shal be returned without the denomination of any 8 Pannels for Indictments may be reformed by the Iustices 9 An Enquest to inquire of the concealement of other Enquests 10 In what case indictment and triall shall bee where the King will 11 Indictments and Trials of Treason committed out of the Realme 12 Indictment in the county of Lancaster of a forrainer 13 Indictment of a Lancashire man in a forraine County 14 Indictment for the striking or poisoning of a man in one coūtie who dieth in another Indictment of an accessary to an offence committed in another County 15 Indictments lacking these words Insidiatores viarum depopulatores agrorum 16 Words not necessary in Indictments 17 No more shall be in an Indictment then is true Felonicè or Piraticè in an Indictment 18 Where a verdict in an action of Trespas shall be an Indictment of Felony 19 The Sherifes returne is no Indictment 20 The yeare day and place necessary in an Indictment 21 An Indictment must be certaine in the matter 22 An Indictment must be certaine in the persons receiued 23 An Indictment vncertaine at what Court 24 Indictment for making of money 25 Indictment of a common theefe Indictment of the Ordinarie 26 The foresaid A. in an Indictment where none is before named 27 Indictment for the killing of a man vnknowne Indictment for the stealing of the goods of a man vnknowne 28 Indictment for the stealing of the goods of a Church or Chappell 29 An Indictment depending vpon an argument or implication 30 In an Indictment furatus est without felonicè or in Rape carnaliter cognouit without rapuit 31 An Indictment before Iustices of Peace 32 An Indictment before the Maior of London vpon sight of the body 33 Indictment of the receit of a Felon as accessarie 34 Indictment of the receit of the goods stolne and of the Felon 35 Indictments void for one purpose will serue for another 36 A prisoner discharged and after retained in prison 37 The difference between an Appeale and Indictment 38 Pleading another time acquit of the same Felony 39 Indictment of the death of a man knowne by two surnames 40 Indicted of the same mans death 41 Indicted in two counties of one offence 42 Arraigned vpon an insufficient Indictment or Appeale 43 Acquit vpon an erronious Appeale 44 Acquit vpon an Appeale brought by one that hath no right 45 Arraigned vpon an Indictment before the parties Appeale be determined 46 Acquit by battaile in an Appeale 47 A Murtherer indicted and arraigned at the Kings suit Another time acquit no plea in an Appeale but in an Indictment 48 No Indictment of Robberie vntill the Appeale bee tried 49 Pleading another time conuict of the same Felony 50 Another time attainted of the same Felony 51 The Kings Pardon obiected against the plea of another time attainted 52 Who is said attainted and who conuict of Felony Mainprise and Baile Fol. 180. 1 In what cases a prisoner is mainpernable in what not 2 The principall in Appeale of death not mainpernable 3 Where the principall let to mainprise 4 Pleading