without for Reward c. is an Adhering to the Kings Enemy and consequently Treason declared by the Act of 25. E. 3. Whether the Aiding or succouring of a Rebel beyond Sea be Treason A is out of the Realm at the time of a rebellion within England and one of the Rebels doth fly out of the Ream whom A knowing his treason doth aid or succour this is no Treason in A by the Stat. of 25. E. 3. because the Traitor is no enemy Vtrum Exteri qui cum Subditis contra Principem militant Rebelles sint habendi An Enemy coming in open hostility into England and taken shall be either executed by Marshal Law or ransomed for he cannot be indicted of Treason for that he was never within the Protection or Ligeance of the King and the Indictment of Treason saith Contra Ligeantiam suam debitam But if a Subject joyn with a Foreign Enemy and come into England with him he shall not be taken prisoner here and ransomed or proceeded with as an Enemy shall but he shall be taken as a Traitor to the King Whether an English Man born consulting with a Foreign Prince to invade his Country may be charged with High treason A Consultation was had concerning John Story Doctor of Law the Duke of Alva's Searcher whether he being an English Man born who in Brabant had consulted with a Foreign Prince about invading his Countrey and had shewed the means of Invasion might have been charged with High treason The skilfullest Lawyer affirmed that he might Whereupon he was arraigned and being to be charged with Treason for that amongst other things he had shewed to the Duke of Alva's Secretary the means to invade England raise Ireland into rebellion and excite the Scots to break into England all at once He refused to submit himself to Tryal and to the Laws of England and affirmed that the Judges had no power over him for that he was not a Subject sworn to the Queen of England but to the King of Spain But he was condemned according to the ordinary forme of Nihil dicit and suffered the death of a Traitor for that no Man can shake off his Countrey wherein he is born nor abjure his native saile or his Prince at his pleasure Nemo Putriam in qua natus est exuere nec Ligeantiae debitum ejurare possit With this Law doth concurre the Civil Law Origine propria neminem posse voluntate sua eximere manifestum est 5. Touching Fausonnery If a Man counterfeit the Kings Great or Privy Scale or his Money it is High treason All antient Authors agree that this was High treason by the Common Law as Bracton Britton Fleta and the Mirrour The Forging of the Kings Coyn is High treason without utterance of it for by the Act of 25. E. 3. the Counterfeiting is made High treason One Morgan and two others were indicted for Counterfeiting twenty Shilling Pieces of the Kings Coyn and Morgan for uttering those Pieces to the Kings Subjects knowing them to be counterfeit and being thereupon arraigned he pleaded Not guilty And evidence being pregnant against Morgan he was found guilty and the others were acquitted And Judgment given that he should be drawn and hang'd but not to be quartered according to the opinion of Stamford f. 182. Note that by the Stat. of 5. Eliz. to clip wash round or file for wicked lucre and gain is declared High treason So by the Statute of 18. Eliz. 't is enacted that diminishing scaling or lighting of the Kings Coyn within this Realm is High treason Touching Money the Civil Law speaks thus Qui falsam monetam percusserint si id totum formare noluerunt suffragio justae poenitentiae absolvuntur D. 48. 10. 19. De falsa Meneta Quicunque Nummos aureos partim raserit partim tinxerit vel finxerit si quidem liberi sunt ad bestias dari si servi summe supplicio affici debent D. 48. 10. 8. 6 and last Bringing into the Realm Counterfeit Coyn. If a Man bring false Money into this Realm counterfeit to the Money of England knowing the Money to be false to Merchandise or make payment in deceit of our Soveraign Lord the King and of his People it is High treason But note that the uttering of false Money in England though the Person know it to be false and counterfeit to the Likeness of the Coyn of England is no Treason within the Statute of 25. E. 3. unless he brought it from a Foreign Nation for the words of the Statute are Si Home apport faux Money en cest Realm Having related the several parts or kinds of Treason within the Stature of 25. E. 3. I shall add these few Queries touching High treason and so conclude Whether a mad Man may be guilty of High treason The antient Law was that if a mad Man had killed or offered to kill the King it was holden for Treason and so it appears by King Alfreds Law before the Conquest and in Beverleys Case for the King is Caput Salus Reipublicae a Capite bona valetudo transit in omnes and for this cause Kings Persons are so Sacred that none may offer them violence without being guilty of High treason Et pereat unus ne pereant omnes But now by the Statute of 25. E. 3. and by force of the words Fait compasser ou imaginer la mort he that is Non compos mentis and totally deprived of all compassings and imaginations cannot commit High treason by compassing or imagining the death of the King for furiosus solo furore punitur and furor in the Civil Law is continuata mentis alionatio qua quis omni intellectu caret If a Man commit Treason and confesseth the same or be thereof otherwise convict if afterwards he become de non sanae memoriae he shall not be called to answer or if after Judgment he become de non sanae memoriae he shall not be executed for it cannot be example to others The Civil Law Culpam non admittit qui suae mentis non est Si per furorem aliquis parentem occiderit impunitus erit Divi Fratres rescripserunt super eo qui per furorem matrem necaverat Nam sufficere furore ipso eum puniri Whether an Alien residing here can commit High treason All Aliens that are within the Realm of England and whose Soveraign are in amity with the King of England are within the protection of the King and do owe a Local or Topical obedience to the King are within the Act of 25. E. 3. and if they commit Treason against the King they shall be punished as Traitours and the Indictment shall say contra Legeantiae debitum Whether the killing of a Foreign Ambassadour residing here be High treason Albeit the malicious killing of an Ambassabour be justi
No Goods be forfeited untill it be lawfully found by the Oath of Twelve men that he is Felo de se And this doth belong to the Coroner super visum Corporis to enquire thereof and if it be found before the Coroner super visum Corporis that he was Felo de se the Executors or Administrators of the dead shall have no Traverse thereunto And this is the reason that no man can prescribe to have Felons goods because they are not forfeited untill it be found of Record that he is Felo de se How a Felo de se shall be enquired of where the body cannot be found If a man be Felo de se Resp and is cast into the Sea or otherwise so secretly hidden as the Coroner cannot have the view of the body and by consequence cannot enquire thereof In this case it may be inquired thereof by the Justices of Peace of that County for they have power by their Commission to inquire of all Felonies But if it be found before them the Executors or Administrators of the dead may have a Traverse thereunto but not to the Indictment taken before the Coroner super visum corporis as before is said Whether a joynt Tenant of Chattels personals becoming Felo de se doth forfeit the whole There is a diversity between Chattels personals in Action and in possession for if a debt be owing to two unless it be in case of Joynt-Merchants and the one is Felo de se he doth forfeit the whole but otherwise it is of goods in possession for there he forfeiteth but his part Whether a debt upon a bare Contract be forfeitable If a man that is Felo de se has a debt upon a bare contract and not upon specialty this shall not be forfeited unto the King Thus much of Felo de se 2. Of Murder in respect of another Bracton defineth this kind of Murder to be Homicidium quod nullo praesente nullo sciente nullo audiente nullo vidente clam perpetratur And of the same mind is Britton whose words are Murdre est occision de home disconu feloniousment fait dount home ne poit scaver per qui ne per quex As also Fleta Est murdrum occulta hominum occisio a manibus hominum nequiter perpetrata que nullo sciente vel vidente facta est preter solum Interfectorem suos coadjutores fautores yet Fleta saith also that it was not murder except it were proved that the party slain were English and no stranger But as Stamford s aith the Law in this point hath received an alteration by the Stat. of 14. E. 3. And therefore this murder is now otherwise to be defined or described It is when a Reasonable Creature be it man woman child Subject born or Alien persons outlawed or otherwise attainted of Treason Felony or premunire Christian Jew Heathen Turk or other Infidel being under the Kings peace is slain or killed by a man of sound memory and of the age of discretion with malice forethought either expressed by the party or implied by Law Touching the former viz. Malice expressed take these Queries with their Solutions Whether this same malice though it be intended against one it shall be extended towards another This Malice is so odious in Law as though it be intended against one it shall be extended towards another And therefore Bracton's words are siquis unum percusserit cum alium percutere vellet in felonia tenetur As if A. put poyson into a pot to the intent to poyson B. and set the same in a place where he supposeth B. will come and drink thereof and by accident one C. unto whom A. hath no malice cometh and of his own will taketh the pot and drinketh thereof of which poyson he dyeth This is murder in A. for the Law doth couple the event with the intention and the end with the cause But herein is a diversity between the principal and the Accessory For if A. command B. to kill I. S. and B. killeth I. D. mistaking him for I. S. this is murder in B. because he did the Act which sprang out of the Root of malice but A. is not Accessory because his own commandment was not pursued But on the other side if A. command B. to kill I. S. by poyson and he doth it by violence as by weapon sharpe or blunt Gun Cross-bow Crushing c in this case notwithstanding the fact be not executed according to the mean prescribed yet A. is Accessory nevertheless for the commandment was to kill which ensued though the mean was not followed Whether killing a man by poyson be more detestable than by any other means To kill a man by poyson sayes Coke is the most detestable of all because it is most horrible and fearful to the nature of man and of all others can be least prevented either by Manhood or providence This offence was so odious that by Act of Parliament it was made High Treason and it inflicted a more grievous and lingring death than the common Law prescribed viz. That the Offendor shall be boyled to death in hot water upon which Statute Margaret Davy a young woman was attainted of High Treason for povsoning her Mistress and some others was boyled to death in Smithfield the Seventeenth of March in the same year But this Act was afterwards repealed by 1. E. 6. c. 12. and 1. Mar. c. 1. Having given you the words of Sir Edward Coke touching poysoning I shall mention something in the civil Law concerning it Plus est hominem extinguere veneno quam occidere gladio For Clam interficere sayes Gothofredus on the Text gravius est quam palam Plus est hominem veneno extinguere quam gladio occidere Lege Cornelia veneficij Capite damnantur qui artibus odiosis tam venenis quam susurris magicis homines occiderint vel mala medicamenta publice vendiderint Whether an Infant within the age of Nine years can be guilty of Murder Vn Infant deins age ix ans occist un Enfant de ix ans Confesse le Felony auxi fuit trove que quant il luy avoit tue il luy occult auxi le Sanke que fuit sur luy effundes si il ceo cxcuse And the Judges held that he ought to be hanged But Fairefax said that the words of Fortescue were viz. That the Reason why a person is executed for Murder is for example that others may fear to offend But such punishment can be no example to such an Infant or to a person that hath not discretion Le Recorder de Londres monstre coment un enfant entra le age de x. ans xii ans suit endite de mort il fuit appose de ceo il dit que il gard barbettes ove cestuy que est mort
ils happen a variance per que illuy ferist en le gule puis en le Teste issint en divers Lieux del corps tanque qu'il fuit mort donques il trahist le corps en le corne les Justices pur sonrendr ' pur ceo que il narroit le matter playnem ent respite le Judgment plusours Justic disont que il fuit deigne mort c. And the Reason is quia malitia supplet etatem with this our Rule do concur the Roman Laws Impunitas delicti propter etatem non datur si modo in ea quis sit in quam crimen quod intenditur cadere potest i. e. si modo sit proximus pubertati ea sentiat in quibus deliquit Malitia minor is etatem justam esse representat ac supplet vel sic Malitioe non succurritur Whether Malice prepensed must be continuing till the mort al wound given Albeit there had been malice between two and after they are pacified and made friends and after this upon a new occasion fall out and the one killeth the other this is Homicide but no murder because the former malice continued not So if A. command B. to kill C. and before the Act be done A. repenteth and countermandeth his Commandment and charge B. not to do it if B. after killeth him A. is not accessory to it for the malicious mind of the Accessory ought to continue to do ill untill the Act done Whether Murder can be committed of a child in utero matris If a Woman be quick with Child and by a Potion or otherwise killeth it in her womb or if a man beat her whereby the Child dyeth in her Body and she is delivered of a dead Child this is a great misprision and no murder But if the Child be born alive and dyeth of the Potion Battery or other cause this is murder for in Law it is accounted a reasonable Creature in rerum natura when it is born alive The Law holden in Bracton's time was si aliquis qui mulierem pregnantem percusserit vel ei venenum dederit per quod fecerit abortivus si puerperium jam formatum fuerit maxime si fuerit animatum facit homicidium And let us now see what the civil Law saith de partu abacto si mulierem visceribus suis vim intulisse quo partum abigeret constiterit eam in exilium preses Provinciae exiget Cicero in oratione pro Cluentio Avito scripsit Milesiam quandam mulierem cum esset in Asia guod ab hberedibus secundis accepta pecunia partum sibi medicamentis ipsa abegisset rei Capitalis essedamnatam Whether it be murder in a Mother to conceal the death of her Bastard Child It is Enacted That if any Woman be delivered of any Issue Male or Female which being born alive should by the Lawes be a Bastard and she endeavour privately either by drowning or secret burying thereof as that it may not come to light whether it were born alive or not but be concealed In every such case the said Mother so offending shall suffer death as in case of murder except such Mother can make proof by one witness at least that the Child whose death was by her so intended to be concealed was born dead Whether he that stabbeth another to death shall suffer as in case of wilful murder It is Enacted That every person which shall stab or thrust any person that hath not then any Weapon drawn or hath not then first stricken the party which shall be so stabbed or thrust so as the person stabbed or thrust shall thereof dye within the space of six months although it cannot be proved that the same was done of malice forethought yet the party so offending and being thereof convicted by the Verdict of Twelve men Consession or otherwise according to the Laws of this Realm shall be excluded from the benefit of his Clergie and suffer death as in case of wilful murder Whether a Murder committed out of the Realm can be tryed by the Common Law If two of the Kings Subjects go over into a Forreign Countrey and fight there and the one kill the other this Murder being done out of the Realm cannot be for want of Tryal heard and determined by the common Law of England but it may be heard and determined before the Constable and Marshal whose Sentence is upon the testimony of witnesses and combat and accordingly where a Subject of the King was slain in Scotland by others of the Kings Subjects the Wife of the party slain had her appeal therefore before the Constable and Marshal and so it was resolved in the 35th year of Queen Elizabeth in the case of Sir Francis Drake who strook off the head of Dowtie in partibus transmarinis that his Brother and Heir might have an appeal So if a man be mortally wounded in France and dyeth thereof in England it is said that an Appeal doth lye upon the statutes of 12 R. 2. c. 2. and 1 H. 4. c. 14. for it is not punishable by the common Law because the stroak was given there where no Visne can come and therefore the same shall be heard and determined before the Constable and Marshal Thus much of Murder proceeding from Malice prepensed and expressed as for Malice implyed it hapneth in three cases 1 In respect of the manner of the deed as if one killeth another without any provocation of the part of him that is slain the Law implyeth malice if one make a wry or distorted mouth or the like countenance upon another and the other immediatly pursues and kills him it is murder for it shall be presumed to bemalice precedent and that such a slight provocation is not a sufficient ground or pretence for a Quarrel One Halloway was Indicted and Arraigned at Newgate for Murthering one Payne the Indictment was that he Ex malitia proecogitata tyed the said Payne at the Horses tayle and strook him two stroaks with a cudgel being tyed to the said Horse whereupon the Horse ran away with him and drew him upon the ground three Furlongs and thereby brake his shoulder whereof he instantly dyed and murdered him Upon this Indictment he being arraigned pleaded nor guilty and thereupon a special Verdict found that the Earl of Denbigh was possessed of a Park called Austerly Park and that the said Halloway was Wood-ward of his Woods in the said Park and that the said Payne with others unknown entred the said Park to cut Wood there and that the said Payne climbed up a Tree and with an hatcket cut down some boughs thereof and that the said Halloway came riding into the Park and seeing the said Payne on the Tree commanded him to descend and he descending from thence the said Halloway stroke him two blows upon the back with
rob or to do some other felony but the like offence committed by day we call House-breaking or Robbing and not Burglary and this kind of felony is provided for by the Stat. of 39. Eliz. That if any man shall break a house by day and take away thence money or goods to the value of five shillings or more in any part of the dweling house or Out-house belonging to the same though no person be therein for this felony he shall lose the benefit of his Clergy so as for this offence the party shall suffer death as in case of Burglary Upon this Law happened this Case following Evans and Finch were arrigned at the Gaole delivery of New-Gate for that they about 12. a clock in the fore-noon brake open Domum mansionalem Hugonis Audeley in the Inner Temple no person being in the said house and stole from thence 40. pounds And upon evidence it appeared that the said Evans by a ladder climbed to the upper window of the said Audeley's chamber and took out thereof the said 40. pounds And that the said Finch stood upon the ladder in the view of the said Evans and saw Evans in the chamber and was assisting to the committing of the said robbery and took part of the money And all this matter being found it was adjudged because the said Finch did not enter into the chamber that he was not within the Statute of 39. Eliz. which takes away Clergy where an house is broken open and the robbery is above the value of five shillings no person therein that he should have his Clergy which was allowed him And as for Evans the special verdict found that he was in the chamber of Hugh Audeley in the Inner Temple and that the robbery was committed between 12 and one of the clock in the day time no person being within the chamber at the time of the breaking thereof but that divers persons were in the Inner Temple Hall and in other places of the house And whether this be a breaking open the house and taking of goods above the value of five shillings nnulla persona being within the house and within the said act of 39. Eliz. they prayed the discretion of the Court And it was resolved upon this special verdict being removed by Certiorari into the Kings Bench and the prisoner removed by Habeas corpus that this breaking open the chamber and taking 40. pounds out thereof nulla persona being therein although there were divers persons in other parts of the house was within the Stat. of 39. Eliz. which takes away Clergy from such offenders Wherefore Clergy was denyed to the said Evans and Judgment given in the Kings Bench that he should be hanged Thus much of Burglary and likewise of House-breaking 4. Pyracy The word Pyrat in Latine Pirata is derived from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which again is fetcht from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a transeundo mare of roveing upon the Sea and therefore in English a Pyrate is called a Rover and a robber upon the Sea Having shewed the Etymology I propound these Questions with their resolutions touching Piracy Whether Piracy were anciently treason Before the Statute of 25. E. 3. c. 2. De proditionibus if a Subject had committed Piracy upon another this was holden to be Petit treason for which he was to be drawn and hanged because Pirata est hostis humani generis and it was contrae Ligeantiae suae dehitum but since the aforesaid Satute this is no treason in the case of a Subject Whether Piracy can alter property Piracy does not change property no more then theft at Land Hobart's Reports f. 78. When goods are tortiously taken upon the Sea by Piracy it gaineth not any property in them against the owner and being sold on the Land unless it were in Market overt doth not alter the property The Civil Law speakes thus A Piratis aut latrenibus capti liberi permanent Qui a latronibus captus est servus latronum non est nec post liminium illi necessarium est Piratae quae capiunt non mutant dominium Grotius l. 3. c. 9. n. 16. De jure belli Whether Attainder for Piracy doth work corruption of blood or forfeiture of Lands If Piracy be tryed before the Lord Admiral in the Court of the Admiralty according to the Civil Law and the delinquents there attainted yet shall it work no corruption of blood nor forfeiture of his Lands otherwise it is if he be attainted before Commanders by force of the Statute of 28. H. 8. c. 15. Whether a Pardon of all felonies shall extended to Piracy About the end of the Reign of Queen Elizabeth certain English Pirates that had robbed on the Sea Merchants of Venice in amity with the Queen being not known obtained a Coronation Pardon whereby amongst other things the King pardoned them all felonies It was resolved by all the Judges of England upon conference and advisement that this did not pardon the Piracy for seeing it was no felony whereof the Common Law took Conusance and the Stat. of 28. H. 8. did not alter the offence but ordained a Tryal and inflicted punishment therefore it ought to be pardoned especially or by words which tantamount and not by the general name of felony and according to this Resolution the delinquents were attainted and executed Thus much of Piracy 5. Burning of Houses Burning is a felony at the Common Law committed by any that maliciously and voluntarily in the night or day burneth the house of another Out of which we may observe two circumstances First To make it felony it must be done with malice and will for if it be done by mischance or negligence it is no felony But whether the Law doth sometime imply that the house was burnt maliciously and voluntarily may be a Quaere It is answered it does As if one intend to burn the house of A. only and not the house of B. and yet in the burning the the house of A. the house of B. is burnt in this case the burning of the house of A is felony because it proceeded of the malicious and voluntary burning of the house of A and the event shall be coupled to the cause which was voluntarily and malicious And the rule is Involuntarium ex voluntario ortum habens moraliter pro voluntario habetur Secondly to make it felony it must be the house of another and not his own house As for example One W. Holmes was indicted in London for that he being possessed of an house in London in Throgmorton street in such a ward for six years the remainder to Is for three years the Reversion to the Corporation of Haberdashers in fee He vi armis felonice voluntarie malitiose igne combussit c. his own house Upon this being arraigned at New-Gate he was found guilty add before Judgment
these words I will kill the King innuendo Dominum Carolum Regem Augliae if I may come unto him and that in August 9. Car. Regis he came into England for the same purpose To this he pleaded Not-guilty and was tryed by a Jury of Middlesex and it was directly proved by two Merchants that he spake these words at Lisbone in Spain in great heat of speech with Captain Baske and added these words Because he is an Heretick and for that his traiterous intent and the imagination of his heart is declared by these words it was held High treason by the course of the Common Law and within the express words of the Statute of 25 E. 3. And he coming into England and being arrrested by Warrant for this cause most insolently put his finger into his mouth and scornfully pulling it out said I care not this for your King c. all which speeches and actions though he now denyed the Jury found him guilty whereupon he had Judgment accordingly He confessed that he was a Dominican Fryer and made Priest in Spain And although this and his returning into England to seduce the Liege-People were Treason by the Stat. of 23. Eliz. yet the Kings Atturney said he would not proceed against him for that cause but upon the Stat. of 25. E. 3. of Treason So one Henry Challercomb was indicted of Treason for words and was found guilty and executed So John Williams was also indicted found guilty and executed for writing a Treasonable Book called Balaamâ— Case These two last Presidents you may see cited in Pyne's Case in Crokes third part of his Reports It is commonly said That bare words may make an Heretick but not a Traitor without an overt Act And therefore to make compassing by bare words or sayings High treason it must be by some particular Statute such were the Statutes of 26. H. 8. c. 13. 1. E. 6. c. 13. 1. 2. Phil. and Mar. c. 9. 1. Eliz. c. 6. 13. Eliz. c. 1. 14. Eliz c. 1. but all these are either repealed or expired yet compassings or imaginations against the King by word without an overt Act is an High misprision Note that there is a Law made for the Preservation of His now Majestie 's Person and Government against Treasonable and seditious practises during his natural life which God long continue proceeding from Printing Writing Preaching or malicious and advised speaking Note further that to calculate or seek to know by setting of a figure or Witchcraft how long the King shall Reign or live is no Treason for it is no compassing or the imagination of the death of the King within the Stat. of 25. E. 3. And this appeareth by the Judgment of the Paliament in 23. Eliz whereby this offence was made felony during the life of Q. Elizabeth which before was punishable by fine and imprisonment But Scipio Gentilis in his first Book De conjuratione sayes De vita Principis inquirere praesertim per Astrologos capitale esse neque hoc solum sed etiam de ea dubitare vel desperare pro crimine Majestatis bahitum esse si ea desperatio indiciis esset aliquibus patefacta Thus much of the King himself If any do compass or imagine the death of the Queen Consort or Prince the Kings Son being Heir apparent to the Crown for the time being and declare it by some overt Act the very intent is Treason as in case of the King himself If a man slay the Chancellor Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Justices of Assize and all other Justices assigned to hear and determine being in their places doing their Offices And the reason wherefore it is Treason in these Cases is because sitting judicially in their places that is in the Kings Courts and doing their Office in administration of Justice they represent the Kings Person who by his Oath is bound that the same be done 2. Touching violation or Carnal knowledge To violate or to carnally know the Kings Companion or the Kings eldest Daughter unmarried or the Wife of the Kings eldest Son and Heir apparent is High treason The reason that the eldest Daughter only is mentioned in Stat of 25. E. 3. is for that for defaut of Issue Male she only is inheritable to Crown 3. Touching War To levy War against our Lord the King is High treason This was so by the Common Law for no Subject can levy War within the Realm without Authority from the King for to him it only belongeth F. N. B. 113. Co. lib. 2. Wisemans Case f. 15. b. In the Codes of Justinian in extant the Constitution of Valentinian and Valens Nulli prorsus nobis insciis atque inconsultis quorumlibet Armorum movendorum copia tribuatur Huc pertinet illud Augustius Ordo naturalis mortalium paci accommodatus hoc poscit ut suscipiendi Belli anctoritas atque Consilium peues Principes sit If any levy War to expulse Strangers to deliver men out of Prison to remove Counsellors or against any Statute or to any other end pretending Reformation this is levying of War against the King because they take upon them Royal Authority which is against the King So if any with Strength and Weapons invasive and desensive doth hold and defend a Castle or Fort against the King and his Power this is levying of War against the King within the Statute of 25. E. 3. One Thomas Bensted was indicted and arraigned before special Commissioners of Oyer and Terminer in Southwark wherein all the Justices and Barons were in Commission and present at which time upon Conference with all the Justices it was resolved First that going to Lambeth House in warlike manner to surprize the Arch-Bishop who was a Privy Counsellor it being with Drums and a multitude as the Indictment was to the number of 300. persons was Treason And Secondly It was resolved by ten of the said Justices seriatim that the breaking of a Prison wherein Traitors be in Durance and causing them to escape was Treason although the Party did not know that there was any Traitors three upon the Stat of 1 H. 6. c. 5 And so to break a Prison whereby Felons escape is felony without knowing them to be imprisoned for such offence Note A Compassing or Conspiracy to levy War is no Treason for there must be a levying of War de facto 4. Touching Adhesion to the Kings Enemies If a man be adherent to the Kings Enemies in his Realm giving to them aid and comfort in the Realm or elsewhere it is High treason Having given you the words of the Stat. 25. E. 3. I propose these Queries Whether the delivery of a Castle or Fort to an Enemy be an Adhering to the Kings Enemy To deliver or surrender the Kings Castles or Fort by the Kings Captain thereof to the Kings Enemy within the Realm or
contempt of the King c. and upon this being arraigned and found guilty because the Indictment was not that he did it in presence of the Justices nor in the presence of the King all the Judges agreed that the Judgment of cutting off his hand should not be given and so seriatim they delivered their opinions But because this offence was in the Palace neer the Hall door whereby tumults might have been made and because it was found sitting all the Courts and in disturbance of Justice and Law and in contempt of the King the Court awarded that he should be imprisoned for the said offence during the Kings pleasure and should pay 1000 pounds fine Thus much where the King is present by Representation If any strikes in the Kings Palace where the Kings Royal Person resideth he shall not lose his right hand unless he draw blood but if he draw blood then his right hand shall be strucken off he perpetually imprisoned and fined and ransomed By what hath been said a Man may perceive a great difference between a blow or stroke in or before the said Courts of Justice where the King is representatively present and the Kings Courts where his Royal Person resideth for in the Kings House blood must be drawn which needeth not in or before the Courts of Justice when the Judges are doing of that which to Justice appertaineth and the reason is Quia Justitia firmatur Solium 7. Routs A Rout is when People do assemble themselves together and after do proceed or rid or go forth or do move by the iustigation of one or more who is their Leader This is called a Rout because they do move and proceed in Routs and members Also where many assemble themselves together upon their own common Quarrel and brawles as if the Inhabitants of a Town will gather themselves together to break hedges pales or such like to have Common there or to beat another that hath done to them a common displeasure or such like that is a Rout and against the Law although they have not done or put in execution their mischievous intent if so be they do go ride or move forward after their first meeting Note that there is diversity between committing of a great Rout or the like and Levying of War for example as if three or four or more do rise to burn or put down an Inclosure in Dale which the Lord of the Mannour of Dale hath made there in that particular place this or the like is a Rout a Riot or an unlawfull Assembly and no Treason But if they have risen of purpose to alter Religion established within the Realm or Laws or to go from Town to Town generally and to cast down Enclosures this is a Levying of War though there be no great number of Conspiratours within the perview of the Statute of 25. E. 3. c. 2. because the Pretence is publique and general and not private in particular As it was resolved Pasch 39. Eliz. by all the Judges of England in the case of Richard Bradshaw Miller Robert Burton Mason and others of Oxfordshire 8. Riot Riot in Latine Riotum cometh of the French word Kioter id est Rixari and in the Common Law signifieth when three or more do an unlawful Act as to beat any Man or to hunt in his Park chase or warren or to enter or to take possession of another Mans Land or to cut or destroy his corn grasse or other profit c. By the Statute of 17. R. 2. and 13. H. 4. the Justices of Peace and Sheriff are to arrest those that commit Riot and to record that which they find done in their presence against the Law Each Man that is able ought to help to repress Riots upon pain of Imprisonment and to make fine to the King Evans and Cottington and 7. others were indicted for a Grand Riot that they with others there named to the number of 1000. persons made a Rescous and assault upon Henry Smith a Baylif who by virtue of a Warrant upon a Bill of Middlesex against William Cleer had arrested him and was carrying him to Prison and they procured him to escape The Arrest was at Charing Crost in the Parish of St. Martins and after the Arrest they assaulted the Bayliffes and beat them and the Bayliffes putting the Prisoner into an house for safe keeping against the tumult they assaulted the house and notwithstanding a Justice of Peace assisted with three Constables made proclamation for keeping the Peace and for their departure yet they continued their assault breaking open the house and with ladders taken from the Kings House of White-Hall where the King with His Court was resident upon the 24. of March 13 Car. in the afternoon of the said day made this Riot and Rescous and carryed the Prisoner away through the Kings House and caused him to escape Upon this Indictment 9. of them being arrested pleaded Not-guilty and 4. of them viz. Evans Cottington Groom and Heatly being arraigned were found guilty and 5. of them were found Not-guilty but against three of them was probable evidence that they were aiding to this Riot and Rescous but the Jury acquitted them wherefore because it was so great a Riot and offence being committed so neer the Court it was adjudged that the said four persons which were so convicted should be committed to Prison and every one of them should pay 500. pounds fine to the King And that every of them should stand on the Pillory at Westminster and Charing Cross where the Riot was done and that Thomas Groom who was a Cobler and entered into the house with a drawn sword and a kettle upon his head as an helmet to defend himself should stand on the Pillory with a sword in his hand and a kettle upon his head and should be bound with good secuties for their good behaviour before they should be delivered And the three which were acquitted against whom there was such probable evidence were bound to find securities for their good behaviour Note An unlawful Assembly is when three or more assemble themselves together to commit a Riot or Rout and do it not One or more sayes the Lord Coke may commit a force three or more may commit an unlawful Assembly a Riot or a Rout A multitude as Some have said must be ten or more Multitudinem decem faciunt And so said they it is said de grege bominum But Coke tells us that he could never read it restrained by the Common Law to any certain number but left to the discretion of the Judges In the Civil Law thus Decem homines populum tres Collegium duo Congregationem quindecim turbam constituunt in Jure Civili sed Jure in Communi Angliae tres turbam faciunt 9. Affraies Single Combats and Challenges c. Single Combats or Duels between any of the Kings Subjects of their own heads and for private malice
or displeasure is prohibited by the Laws of this Realm for in setled State governed by Law no Man for any injury whatsoever ought to use private revenge because it belongeth to the King who is the Supream Magistrate and Gods Lieutenant on Earth And the Law herein is grounded upon the Law of God Deut. 32. 35. Rom. 12. 19. It is also against the Law of nature and Nations for a Man to be Judge in his own proper Cause especially in Duels where fury wrath malice and revenge are the rules of the Judgment Hinc est sayes one quod Legum reperta est sacra reverentia ut nihil manu nibil proprio ageretur impulsu Quid enim a bellica confusione pax tranquilla distat si per vim litigia terminantur But it may be objected that it is lawful vim vi repellere therefore private revenge is lawful The reason of the consequence is because by revenge force by force is repelled It is answered That the antecedent is not simply and universally true Vim vi repellere licet cum moderamine inculpatae tutelae in casu ultimae indeclinabilis necessitatis non semper quocumque modo Note that Duels are lawful if they are warranted by publick Authority such as heretofore our Tryals by batail ad probandam veritatem litis and such was the Duell betwixt David Goliah which was strucken by publick warrant and authority Vid. more of this in Grotius lib. 2. c. 1. nu 15. cap. 23. nu 10. Note further that albeit upon the Single Combat that proceeds not from publick authority no death ensue nor blood drawn yet the very Combat for revenge is an Affray and a great breach of the Kings Peace an Affright and terrour to the Kings Subjects and is to be punished by fine aud Imprisonment and to find sureties for their behaviour When any Affray is made by Single Combat any stander by that is no Officer may endeavour to part them and prevent further danger and the Law doth encourage them thereunto for if they receive any harme by the Affrayours they shall have their remedy by Law against them and if the Affrayours receive any hurt by the endeavouring only to part them the standers by may justify the same and the Affrayours have no remedy by Law But if either of the Parties be slain or wounded or so striken as he falls down for dead in that case the standers by ought to apprehend the Party so slaving c. or to endeavour the same by the Hue and Cry or else for his escape they shall be fined and Imprisoned But if the Sheriff Justice of Peace Constable or other Conservatour of the Peace do not part the Affrayours for the preservation of the Kings Peace and apprehend them being within his view or do not his uttermost to part and apprehend them they may be imprisoned for their neglect thereof for they may command others to assist them and therefore the rule holdeth in them qui non prohibet cum probibere passit in culpa est And if any be commanded to assist them therein and refuse or neglect the same it is a contempt in them to be punished by fine and Imprisonment The words Affray and Assault be indifferently used of most Men and that also in some of our Book Cases but yet according to Lambards opinion there wanteth not a just difference between them For Affray is derived of the French Cffraper which signifieth to terrify or bring fear which the Law understandeth to be a common wrong and therefore is it enquirable in the Turn of the Sheriff or in a Leete 4. H. 6. 10 and 8. E. 4. 5. otherwise it is of an Assault as it seemeth by those very Books yet may an Affray be without word or blow given as if a Man shall shew himself furnished with armes or weapon which is not usually worn and born it will strike a fear into others that be not armed as he is But an Assault as it is fetched from another fountain namely from the Latine Assultus which denoteth a leaping or flying upon a Man so can it not be performed without the offer of some hurtful blow or at the least of some fearful speech And therefore to strike at a Man although he were neither hurt or hit with the blow was adjudged an Assault 22. Ass Pl. 60. For this Assault doth always necessarily imply a hitting and therefore in Trespass of Assault and Battery a Man may be found guilty of the Assault and yet be excused of the Battery 40. E. 3. 40 45. E. 3. 24. 3. Challenges If any Subject by word Message or Writing challenge another to fight with him this is an offence before any combat be performed and punishable by Law and it is contra Pacem Coronam Dignitatem Regis For prohibetur cum aliquid prohibentur etiam media ad illud tendentia The means of such evills as well as the end are to be prevented 10. Libells A Libel signifieth a criminous report of any Man cast abroad be he Magistrate or a private Person or otherwise unlawfully published in writing and therefore for distinction sake it is called an Infamous Libel or Pasquil It matters not whether the Libel be true or false or whether the Party be of good fame or ill fame for it inciteth all the same Family Kindred or Society to revenge and so tendeth by consequence to the effusion of blood and to the breach of the publick Peace and therefore such Libelling be it true or false is punishable by our Law It was resolved in the Star-Chamber 44. Eliz. Hallywoods Case that if any find a Libel and would preserve himself out of danger if it be a private Man the finder may either burn it or presently deliver it to some Magistrate but if it concern a Magistrate or Publick Person he ought to give it to the Magistrate One Jesses was indicted for that he exhibited an infamous Libel directed unto the King against Sr Ed. Coke late Chief-Justice of the Kings Bench and against the said Court for a Judgment given in the said Court in the Case of Magdalen Colledge affirming the said Judgment to be Treason and calling him therein Traitour perjured Judge and scandalizing all the Professours of the Common Law and containing much other scandalous matter and fixed this Libel upon the great Gate at the entrance of West minster Hall and in divers other publick Places And being upon this arraigned prayed that Councel might be assigned which was granted and he had them but would not be ruled to plead as they advised but put in a scandalous plea and insisting upon it affirmed that he would not plead other wise whereupon it was adjudged He should be committed to the Marshall and that he should stand upon the Pillory at West minster and Cheapside with a Paper mentioning the offence and with such Paper be brought to all the
fortia nulla Et ubi non est principalis non potest esse accessorius As if the principal and accessory be arraigned and both found guilty and the principal has his book before Judgment It was adjudged the accessory shall be discharged and also if the principal confess and hath his book the accessory shall be discharged because Judgment was new given against the principall So where the principal before attainder is pardoned the accessory is discharged It is resolved that where the principal was found guilty of Man-slaughter and not guilty of murder and had his Clergy the accessory shall be discharged for till Judgment it doth not appear judicially that there was a principal But if the principal prayes his Clergy after he hath had Judgment or if he be pardoned yet the accessory shall be arraigned for it appears judicially that there was a principal By what has been said you see that the accessory ought not to be condemned but where the principal is attainted and not where he is convicted only and had his Clergy which Clergy is a Refuge provided by the Common Law in favour of Learning to save the life of an offender Literate in certain cases I say in certain cases because the benefit of the Clergy is taken away in many particulars as 1. For stealing of horses 1. E. 6. c. 33. 2. For robbing dwelling houses c. in or neer the high way 5. E. 6. c. 9. 3. For burning of houses or Burns 5. Ph. M. c. 4. For stealing of 5. Shillings in any dwelling house or any place adjoyning 39. Eliz. chap. 15. 5. For Burglary and Rape 18. Eliz. c. 17. 6. For stealing 12 pence or more without the knowledg of the Person c. 8. Eliz. c. 4. 7. For killing one that hath no weapon drawn 1. Jac. c. 9. c. But to conclude this learning of Clergy It is a Rule whensoever felony is made by any Statute and the benefit of Clergy is not taken away the offender shall have his Clergy The accessory ought not to be put to answer before the principal be attainted for Juri non est consonum quod aliquis accessorius in Curia Regis convincatur antequani aliquis de facto fuerit attinctus And consequentially by the Reversal and acquittal of the principal the dependant Judgment against the accessory cannot stand And this is agreable to the Rules of the Imperial Laws Cum principalis causa non consistat plerumque ne ea quidem quoe sequuntur locum habent Quando res aliqua sit accessoria principali vitiato principali corruit accessorium Thus much of the Rules and now for the Quaeries with Solutions A Man being made accessorie to two whether he can be found accessory to one If an Appeal be brought against two as principalls and against another as accessory to them in this case both of them must be attainted before the accessory be outlawed and if one of the principals be found not guilty the accessory is discharged for the Plaintiff made him accessory to two and therefore he cannot be found accessory to one Qu. 2. Whether the Writing of Letters c. in Favour of a Felon can make him an Accessory Resp If a man write Letters for a Felons deliverance or in favour of him or the like he is no Accessory for that he received not the Felon Qu. 2. Whether the Instructing of a Felon to Read will make the Person Instructing an Accessory Res A Vicar Instructing an Approver which could not Read whilst he was in prison to Read whereby he escaped was adjudged not Accessory to the Felony Qu. 3. Whether the perswading Witnesses not to Appear to give Evidence against a Felon will make one an Accessory to the Felony Res Catlin and Brown Justices of Assize in the County of Suffolk put this Case to all the Judges A man committed Felony in the County of Suffolk for the which he was committed to the Goal and R. an Attorney advised the Friends of the Felon to perswade the Witnesses not to Appear to give Evidence against him which was done accordingly And it was Resolved that neither the Friends nor the Attorney were Accessories to the Felony but it was a great Contempt and Misprision for which they might be fined and imprisoned Hitherto of the Parties in Judgements Criminal The Assistants in Judgements Criminal are of two sorts the one appertaining to the King as the Kings Serjeants his Attorney and Solicitor General and the Clerk of the Crown the other to the party Arraigned assigned to him upon his prayer by the Court The Duty of the Kings Councel learned in the Laws is to manage the Evidence against the prisoner at his Tryal and the Function of the Clerk of the Crown is to frame read and record all Indictments against Traytors Felons and other Offenders Arraigned in the Kings Bench upon any publique Crime Note by the Statute of 2 H 4. this Clerk of the Crown if fourscore or a hundred men be Indicted of Felony or Trespass of one Felony or one Trespass and they plead to an Issue as not Guilty the said Clerk ought not to take for the Venire Facias nor for the Entring of the Plea but two shillings only and not two shillings for every one which Act is made in affirmance of the Common Law So if one man be Indicted of two several Felonies or Trespasses and is acquitted he shall pay but for one Deliverance As to the Councel belonging to the Party Arraigned the Law of England is thus Where any person is Indicted of Treason or Felony and pleadeth to the Treason or Felony Not Guilty which goeth to the Fact best known to the party it is holden that the party in that Case shall not have an Advocate assigned to defend his Cause or alledge any matter for him but if the party Arraigned hath any matter of Law to plead he shall have Councel assigned by the Court to plead the same as to plead a general Pardon or a particular Pardon or to plead in Arrest of Judgement if the Verdict be found against him that the Tryal came not out of the right place as it fell out in Arundels Case convicted by a Jury of wilful Murder or any other matter of Law Sir Humphrey Stafford had an Advocate assigned him concerning the priviledge of Sanctuary from whence he was drawn by Force bnt for the matter of High Treason he pleaded his own Cause But though the party Arraigned upon an Indictment of Treason or Felony and pleading to the Treason or Felony Not Guilty which goeth to the Fact cannot have Councel to give in Evidence or alledg any matter for him yet in Appeals which are the Suites of the Subject Councel is allowed and the Reason why Councel is not prohibited in an Appeal as it is in an Indictment may be this There is no
is not supposed the same and one but committed at divers dives 27. Ass Pl. 10. And this for Accessaries after the felony But when felony is done by force of Commanding and procurement of another he that shall be arraigned as Accessary may plead that he was acquit c. though it were as principal and the offences were at divers daies for vulnus praeâ—eptum factum sunt quasi unum factum Note in an Indictment or Appeal of death if it be found that he killed him in his own defence he is acquited of the felony for ever 3. Auterfoitz convict de mesine le felony devant Iudgement If a Man commit murder and be indicted convict or acquitted of Man-slaughter he shall never answer to any other Indictment of the same death for all is one and the same felony for the same death Wetberel brought an Appeal against Darby of murder the Defendant pleaded on culpable and was found guilty of Man-slaughter and had his Clergy afterwards he was indicted of murder and upon it arraigned at the Kings Suit and he pleaded the former conviction in the Appeal at the Parties Suite and it was adjudged a good Barre ad thereupon discharged for this was a good Barre at the Common Law and restrained by no Statute and the reason is because the Life of Man shall not be put twice in Jeopardy for the same offence 4. Auterfoitz convict d'un auter felony Before the Statutes of Qu. Eliz. c. 4. and 18. Eliz. c. 6. If a Man had committed divers felonies if he had been indicted of the last and had the benefit of his Clergy he could not have been impeached for any of the former felonies albeit for the same he could not have had his Clergy by the Act it is provided that notwithstanding the allowance of such Clergy he may be impeached for any former offence for which he could not have had his Clergy 5 and last Auterfoitz attaint de mesine le offence Anterfoitz attaint of the same felony was a good Plea as well in an Indictment as in an Appeal at the Common Law But by the Stat. of 3. H. 7. c. 1. in an Appeal of death at the Suit of the Party auterfoitz attaint de mesme le mort is no Plea at this day But in case of an Indictment of death at the Suit of the King auterfoitz attaint de mesme le mort in Appeal is a good Plea Auterfottz attaint bd murder is a good Plea to an Indictment c. of Petit treason of the same death for in effect it hath the same Judgment and the self same forfeiture So likewise a Man may be attainted of Man-slaughter it is a good barre to an Indictment of murder of the same death and eâ— converso Thus much of matters Judicial in criminal offences I go on now according to our first proposed Method to the Acts Judicial 8. Of Judicial Acts relating to publik Crimes Touching these Judicial Acts there are worthy of consideration these particulars The manner how Causes criminal are brought to Tryal 2. The Judgment or Sentence upon that Tryal or Arraignment 3. The Execution of that Sentence 4. The means whereby the Judgment or Execution may be escaped or delayed No Man is said to be arraigned but meerly at the Suit of the King upon an Indictment found against him or other Record wherewith he is charged And there the Arraignment of the Prisoner is to take order that he appear and for the certainty of the Person to hold up his hand and to plead a sufficient plea to the Indictment or other Record whereupon they which follow for the King may orderly proceed If the party accused of Treason or Felony c. do at his Arraignment before the Judge deny the offence or as we say plead Not-guilty then shall he be tryed by a Jury of 12 Men dwelling nigh to the Vill where th offence was comitted such Men as to the Party accused be nothing allyed to certify the Judge upon the truth of the fact which at their appearance the Party arraigned may challenge peremptorily upon his own dislike without shewing any cause in favorem vitae the number of twenty in murder and other Felony And in case of High treason Petit treason and Misprision of treason he may challenge to the number of 35 And if he challenge peremptorily above 35 in case of Treason or Petit treason he forfeiteth his goods and Judgment of pain fort and dure shall be given against him as one that refuseth the Tryal of Law by challenging 3 full Juries Otherwise in case of Felony for no Law giveth forfeiture for challenging above twenty but the Court is to over-rule the Challenge But note that in case of Treason or Felony the Party arraigned may challenge for just cause as many as he can 2. But if the Party upon his Arraignment in case of Felony refuse to answer according to Law or say nothing he shall not be Judged to be hanged but for his contempt he shall undergo pain fort and dâ—re which makes no Attainder for the felony nor forfeiture of his Lands nor corruption of Blood Otherwise in case of High treason for if the Party refuse to answer according to Law or say nothing he shall have such Judgment by Attainder as if he had been convicted by Verdict or Confession 3. If the Party-arraigned be found Guilty by Verdict or Confession then he is said to be convicted which is before he hath Judgement or Sentence and thereupon he doth forfeit his goods and Chattels But note that the begging of the goods or Estate of the Delinquent indicted of any Treason Felony or other offence before he be convicted and attainted is utterly unlawfull because before Conviction and Attainder nothing is forfeited to the King nor granted by him And besides it either makes the Prosecution more violent and undue then quiet and equal proceeding of Law and Justice would permit or else by under hand Commission and agreement hinder the due course of Justice for examplary punishment of the offender Note further that before Indictment the goods or other things of any criminal cannot be searched Inventoried or in any sort seised nor after Indictment seised and removed or taken away before Conviction or Attainder Thus much of the manner touching the Arraignment of a Delinquent Assoon as Judgment or Sentence is pronounced by the Judge the Party arraigned is said to be attainted mort en Ley But though the Delinquent by the Attainder be a dead Person in Law yet maugre the Attainder his Body may at the Suit of a Subject be taken in execution upon a Judgment or Stat. c. And he may be executed for Treason or felony notwithstanding such Execution had against him As to Attainder take these Queries together with Solutions Qu. 1. Whether there be a diversity betwixt an Attainder
this offence called Mayhem 53 Offences An offence or delict what 1 How many ways offences are committed Ib. What offences despoil Men of their property 54 Offences that injure Mans Body or members 50 Offences relating to life 2 Petit Treason What it is 3 How many ways it happens 3 4 What may be said Petit Treason in a Servant 4 Execution of a Servants Act hath a retrospection to the Original cause Ib. What may be said Petit Treason in a Wife 5 Parricide whether Petit Treason or not 6 7 Poyson How many ways a Man may be poysoned 35 36 Piracy The Etymology of the word Pirat 70 71 Piracy where antiently Treason where not Ibid. It alters not property unless it be in Market overt Ib. Where there shall be no corruption of blood in case of Piracy 71 72 Where a Pardon of all felonies shall not extend to Piracy Ib. Punishment It s definition 113 The true end thereof 114 It s several sorts in our Law in the Jewish and Romane Laws 114 115 116 117 Circumstances observable relating to punishments 120 Principals In Treason all are principals 123 Rules touching principals Ib. Where a Man may be principal though he be not present at the Act. Ib. Where a Man may be principal as well before as after though he be absent at the doing of the fact 124 Where the being present and abetting an offence makes all principals though the offence be personal Ibid. Where the Attainder of an Accessary depends upon the Attainder of the principal 128 Pain Fort Dure In what cases a Man that stands mute shall have Judgement of Pain Fort and Dure and in what not 150 Where the Judgement of Pain Fort and Dure shall be no Plea to a former felony 146 Pardon The Description and Etymology of it 158 15â— How many sorts of Pardons there be Ib. Where a Writ of Allowance is necessary to a Pardon and where not Ib. 160 Rape c. 83,84 Riots The Description of a Riots and its derivation 101 Stat. touching Riots Ibid. What number of Persons may commit a Riot a Rout ad unlawful Assembly 103 Robbery It s definition 60 The Difference betwixt a Robber and a Cut-purse 63 What shall be a taking in case of Robbery and what shall be said a taking from his Person 63 64 65 The Thieves reception only may make a Robbery 64 Routs The description of a Rout. 98 The difference between a Levying of War and committing a great Rout c. 100 101 Rumours The punishment before the Conquest and what since of those that are authors of false Rumours 110 They were heretofore very dangerous to our Kingdom Ib. Se Defendendo What Homicide se defendendo is 44 Where a Man ought to give back to prevent Homicide where not 45 46 Sacrilege 68 69 70 Striking in the Kings Court. A diversity betwixt a stroke in or before the Courts of Justice and the Kings Courts where His Royal Person resideth 99 Where to strike in Westminst Hall or the Kings Palace is a great Misprision the punishment of it 97 98 Theft The Etymology of the word Furtum 55 Its Definition Ib. Forbidden by the Law of Nature Ib. The several sorts of Theft Ib. Treason It s derivation and how divided 3 Violation of Royal Majesty a most abominable thing 75 76 To compasse or imagine the death of the King High Treason 76 What are sufficient overt Acts to prove the imagination of the Kings death Ib. 77 In every rebellion by Interpretation of Law there is a machination against the Life of the King 77 A diversity betwixt Treason and Felony 78 Where words or Writing are sufficient overt Acts of Compassing the Kings death Ibid. Where words may make a Heretique but not a Traytor 80 No words are Treason unless made so by some particular Statute Ib. No Treason at this day but what is made by the Stat. of 25 E. 3. Where to set a figure to know how long the King shall live or Reign is no Treason Ib. Where to practise to depose the King to imprison him or to take him into their power shall be Treason 76 77 The compassing or imagining the death of the Queen or Prince is High Treason 81 Where slaying the Chancellor c. shall be High Treason Ib. Carnal knowledge of the Kings Consort the Kings Eldest Sons Wife or of the Kings Eldest Daughter Treason Ib. What shall be said Levying of War to make it Treason 82 83 To go in Warlike manner with a multitude to assault a Privy Councellor at his House is Treason Ibid. The breaking of a Prison wherein Traitors be in Durance and causing them to escape is High Treason though the Parties did not know there were any Traitors there Ib. There must be Levying of War de facto to make it Treason Ib. What shall be said an adhering to the Kings Enemies to make a Treas within the Stat. of 25. E. 3. 83 84 Where a conspiracy with a Foreign Prince shall be Treason and where not 84 85 The aiding and succouring a Rebel beyond Seas is no Treason Ibid. Who shall be said Enemies and who Traitors Ibid. To counterfeit the Great-Seal or Mony is Treason Ib. Forging the Kings Coyn without uttering it is High Treason 85 86 Bringing into the Realm counterfeit Coyn High Treason 87 By the Antient Law a Mad-Man might be guilty of High Treason 88 Where a Non compos mentis cannot be guilty of High Treason at this day Ib. What Aliens may commit Treason Ib. Where the killing of an Embassador was adjudged High Treason 89 An Embassador shall loose the Priviledges of an Embassador for committing High Treason Ib. A Foreign Prince by residing here may commit Treason 90 91 The Judgement in Treason for Counterfeiting Mony 86 Verdict The signification and derivation of the word 133 Several kinds of Verdicts Ibid. Lib. 3. c. 4. nu 3. de corena Mirror c. 1. Sect. 9. Co. 3. Jnst f. 54. 1 Petit Treason Co. 3. Inst f. 4. 20. 12 Ass pl. 30. 19 H. 6. 47. Plowdens Com. 86. b. Crompt 20. Crompt 20. Co. lib. 1. Shellies case 99 b. 10. H. 6. 47. Plowdens Com. 260. Co. 3. Inst f. 20. Moores Reports nu 227. f 91. Cromp. 20. Plowd Com. f 474. Co 3 Just f 20 The Womans Lawyer lib. 3. sect 44. Crompt ' 21. Dalisons Rep. 1. Mar. 1. Murder Co Litt 287 bpunc Stamfords Plees of Crown Lib 1punc Quaere 1 Resp D 47 253N Qu 2 44 E 3 44 3 E 3 Cor 286 Co 3 Inst f. 54 Qu 3 Resp Plowd fol 360 b. Co Lit f 114 ab l 5 f 109. Qu 4. Hill 37 Eliz in the Kings-Bench by the whole Court in the Case of one Laughton of Cheshire Qu 5 Resp 8 E 4 4 7 E 4 7 a Plowd Com 259 b Qu 6 Resp Dyer 262 a Lib 3 c 15 nu 1 de Corona Britton c 6 Lib 1 c 30 14 E 3 c 4 Qu 1 Sol Co
Wife for that she intended Murther thereby so if the Wife poysoneth an Apple or other thing and delivereth it to B. knowing of the poyson to give to C. and B. giveth it to the Husband without the assent of the Wife who eateth thereof in the Wives absence and he dyeth thereof this is petit Treason in the Wife But if the Wife poysoneth a thing to the intent to poyson her Husband therewith the Husband eateth of it and becometh very sick but recovereth after a stranger eateth thereof and dyeth thereof this is onely murther in the Wife If the Wife and Servant conspire the Husbands death he is killed by the Servant in the absence of the Wife this is petit Treason in them both and the Wife shall be burnt But if it had been a stranger it had been murder in him onely and petit Treason in the Wife Baron and Feme out of affection were resolved to go out of the World together The Wife buyes poyson both take it the Husband dyed It is a quaere in the Book whether this were murther in the Wife A Woman compasseth with her Avowterer the death of her Husband they assailed him Riding on the Highway beating wounding leaving him for dead and then they fled The Husband got up levied Hue and cry came before the Justices they sent after the Offenders which were gotten arraigned and the matter found by the Verdict the Adulterer was hanged the Woman burned to death the Husband living This Judgement was given when voluntas reputabatur pro facto Sic Metellus Celer Sergium damnavit non facturm sed animus in questionem deductus est Plusque voluisse peccare nocuit quam non peccasse profuit But at this day in case of Felony Non debet obesse Conatus ubi injuria nullum habet effectum 3. When a Secular or Religious man slayeth his Prelate Ordinary or Superiour to whom he oweth Faith and Obedience Note that unto the Bishop of every Diocess the Clerks within their Diocess do owe Faith and Obedience which is called Canonical Obedience Note likewise that whatsoever Act will prove murder between strangers the same will make petit Treason from the Servant to his Master from the Wife to the Husband from the Clerk to his Prelate or Ordinary Mutatis Mutandis But whether from a Child to the Father or Mother c. may be a Quaere for some hold that it is petit Treason and others that it is not If the Child maliciously killeth the Father or Mother this sayes one is petit Treason although the Father or Mother at the same time gave neither meat drink or Apparel nor wages to such Child in respect of the duty of nature violated vide 21. E. 3. 17 Book Treason 6. A Bastard killeth his Mother this seemeth petit Treason for the Mother is certainly known The Son or Daughter in Law killeth the Father or Mother in Law with whom they dwell and do service and have meat and drink it is petit Treason although such Child take no wages but the Indictment shall be by the name of Servant But my L. Coke says thus If the Child commit Parricide in killing his Father and Mother of which Solon interrogatus cur nullus parricidio supplicium indixisset Se id neminem facturum putasse respondit The Law-makers never imagined any child would do this case is out of the Stat. of 25. E. 3 c. 2. unless the child served the Father or Mother for wages or meat drink or apparel for that it is none of those three kinds specified in the Law aforesaid And yet sayes he the offence is far more heinous and impious in a child than in a servant for peccata contra naturam sunt gravissima but the Judges are restrained by the said Act to interpret it a simili or a Minore ad Majus The hainousness of this Parricide appears by that punishment which is ordained in the civil Law for those that are guilty of the Crime Paena parricidij more Majorum haec instituta est ut parricida virgis sanguineis verberatus deinde culleo insuatut cum Cane gallo gallinaceo vipera simia deinde in mare profundum Culleus jactetur D. 48. 9 9. Thus much of petit Treason Murder cometh of the Saxon word Mordrue or Mordren and Mordridus is the Murderer even untill this day amongst them in Saxony from whence we have most of our words or it may be derived of Mort and Dire as Mors Dira a Cruel or Horrible death This Murther in our Law is Two-fold either of himself or of another 1. Of Murdering a mans self called Felo de se Felo de se sayes Coke is a man or woman which being Compos mentis of sound memory and of the Age of Discretion killeth himself which being lawfully found by the Oath of Twelve men all the Goods and Chattels of the party so offending are forfeited And the Reason why Felo de se doth forfeit all his Goods and Chattels is because it is an offence against the King who by that perpetration is deprived of a Subject And indeed no man by the Law of nature hath such power over his own life as to take it away or to oblige it by any Contract or Bargain vide Grot. Lib. 2. c. 21. nu 11. Lib. 3. c. 11. nu 18. Having shewed the Description of Felo de se and the Reason of forfeiting his Chattels I propose these Queries with their Resolutions Whether a person that is non compos mentis giving himself a mortal wound and after recovering his memory before death ensues be Felo de se If one during the time that he is non compos mentis giveth himself a mortal wound whereof he when he hath recovered his memory dyeth he is not Felo de se And the Reason is because the stroke which was the cause of his death was given when he was not Compos mentis Et actus non facit Reum nisi meus sit rea And this is agreeable to the civil Law Maleficia voluntas propositum distinguit voluntas propositum maleficium delinquentis distinguit Delictam cessat ubi delinquendi animus non est Whether a man can be said to be Felo de se upon an involuntary Act A man may be so Resp As if A. give B. such a stroke as he felleth him to the ground B. draweth his knife and holds it up for his own defence A. in hast meaning to fall upon B. to kill him falleth upon the knife of B. whereby he is wounded to death he is Felo de se For B. did nothing but that which was lawful in his own defence Et vim vi defendere sayes the civil Law omnes leges omnisque jure permittunt D. 9. 2 45 4. Whether the goods of Felo de se be forfeited before it be found of Record that he is Felo de se
against his will it is no Homicide But Briton cap. 5. De Homicides saith that if one who is not of the mystery of a Physician or Chirurgion take upon him the Cure of a man and he dieth of the potion or Medicine this is saith he Covert felony In the Civill Law it is thus Medico imputari eventus mortalitatis not debet Ita quod per imperitiam commisit imputari ei debet praetextu humanae fragilitatis delictum decipientis in periculo homines inoxium esse non debet Imperitlia culpae adnumerontur veluti si Medicus ideo servum tuum occiderit quia male secuerit aut perperam ei medicamentum dederit Thus much of the Pleas of the Crown that have relation to the life of man I proceed now to those that respect the body and members 2. Of those Crimes that appertain to mans body or members and they are Battery Mayhem and Rape Battery is when a man assaulteth and beateth another this is against the Law and Peace of the Realm which ordaineth that no man shall be his own Judge or revenger of his own private wrong but shall leave this to the Censure of the Law And this is agreable to the Roman Laws Generali lege decernimus neminem sibi esse judicem vel jus sibi dicere debcre In re enim propria iniquum admodum est alicui licentiam tribuere sententiae Again Non est singulis concedendum quod per Magistratum publice possit fieri ne occasio sit Majoris tumultus faciendi wherefore he that is so beaten may indict the other party who upon it shall be fined to the King But some there are that may in a reasonable and moderate manner chastise correct and beat others 1. In respect of power proceeding from the Law of nature as Parents may correct their own Children 2. In respect of Authority oeconomical as the Master may chastise his Servant or Apprentice 3. In respect of power arising from Civil Justice as the Gaoler and his servant the unruly prisoners the Officers him that is arrested and will not otherwise obey Also a man may justify the beating of another in defence of his own person or of the person of his Wife Father Mother or Master But when any is assaulted or beaten in Church or Churchyard it is not lawful for him to return or give any blows in his own defence as he may elsewhere in other places Mahim or maime Mahemium cometh of the old French Mehaigne a Maime a corporal hurt whereby a man loseth the use of any member The Canonists call it Membri mutilationem or Mayhem is where by the wrougful Act of another auy member is hurt or taken away whereby the party so hurt is made unperfect to fight As if a bone be taken out of the head or a bone be broken in any other part of the body or foot or hand or finger or joynt of a foot or any member be cut or by some wounds the sinews be made to shrink or other member or the fingers made crooked or if any eye be put out or the fore-teeth broken or any other hurt in a mans body by means whereof he is made the less able to defend himself or offend his enemy But the cutting of an ear or nose or breaking the hinder teeth or such like is no Mayhem because it is rather a deformity of the body then diminishing of strength and that is commonly tryed by beholding the party by the Justices And if the Justices stand in doubt whether the hurt be a Mayhem or not they use and will of their own discretion take the help and opinion of some skilful Chirurgeon to consider thereof before they determine upon the Cause But whether a man may be indicted for maiming himself To this it answered that he may As it appears in the Case of one Wright anno 11. Jac. in the Country of Leicester who being a yong strong and lusty rogue to make himself important thereby to have the more colour to beg or to be relieved without putting himself to any labor caused his Companion to stricke off his left hand and both of them were indicted fined and ransomed therefore and that by the opinion of the rest of the Justices for the members of every subject are under the safeguard and protection of the King to the end that they may serve the King when occasion shall be offred and therefore not in the power of a subject to maim or hurt his own body or limbs or to cause another to do it And this is agreable to the Civil Law Nemo membrorum suorum est dominus Liber home suo nomine utilem aquiliae habet actionem directam enim non habet quoniam dominio membrooum suorum nemo videtur By the ancient Law of England he that maimed any man whereby he lost any part of his body the Defendant should loose the like part as he that took away another mans life should loose his own And this was grounded upon the Law of God Levit 24 v. 18 19. 20. Deut. 19. v. 21. It is called among the Latines Lex Talionis or Reparationis among the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 per quam quis Patitur quod alteri fecit This offence of May em is under all felonies deserving death and above all other inferiour offences so as it may be truly said of it that it is Inter crimina majora minimum inter minora maximum Rape is the violent deflouring of a Woman against her will and this offence is felony as well in the principal as in his Aiders vide 11. Hen. 4. c. 13. 1. E. 4. c. 1. West 2. c. 13. Cromptons Justice of Peace f. 43 44. But my Lord Coke defines it thus It is when a man hath carnal knowledge of a woman by force and against her will or Rape is felony by the Common-Law declared by Parliament for the unlawful and carnal knowledg and abuse of any woman above the age of ten years against her will or of a woman child under the age of ten years with her will and the offender shall not have the benefit of Clergy Vide 18. Eliz. c. 6. If the party that is ravished conceive by the Ravisher a child at the time of the Ravishment this is no Rape because she could not conceive unless she assent Bracton in 24th chapter of his third book sheweth that by the Antique Law of King Athelstan He that meeting a Virgin sole or with company did but touch her unhonestly was guilty of breaking the Kings Edict It against her will he threw her on the ground he lost the Kings favour if he discovered her and cast himself upon her he lost all his possessions if he lay with her he suffereth Judgement of life and member yea if he were an Horse-man his horse lost his tail and main His hawk likewise lost
this Indictment was removed by Certiorari into the Kings Bench and being argued by Grimston that it was not felony By Richardson Jones and Berkeley it was held that it was not felony to burn an house whereof he is in possession by vertue of a Lease for years For they said that burning of houses is not felony unless that they were aedes alienae And therefore Britton and Bracton mention that is felony to burn the house of another and the Year-Books and Co. lib. 11. Powlters Case which say that burning of houses generally are to be intended de aedibus alienis de non propriis And although the Indictment be ea intentione ad comburendum felonice c. yet intent only without fact is not felony Also Barkeley and Jones held that it cannot be said vi armis when it is in his possession and therefore it was resolved that it was not felony wherefore he was discharged thereof But because it was an exorbitant offence and found they ordered that he should be fined 500. pounds to the King and imprisoned during the Kings pleasure and should stand upon the Pillory with a paper upon his head signifying the offence at Westminster and at Cheap-side upon the Market day and where he committed the offence and should be bound with good sureties to his good behaviour during life Note there is a late Act made to prevent the malicious burning of houses Stackes of Corn and Hay and killing and maiming of Cattel Touching burning the Civil Law speaks thus Qui aedes acervumque frumenti juxta domum positum combusserit vinctus verberatus igni necari jubetur si modo sciens prudensque id commiserit Si vero casu id est negligentia aut noxiam sarcire jubetur aut si minus idoneus sit levius castigatur Si fortuito incendium factum sit venia indiget uisi tam lata culpa fuit ut Luxuriae aut dolo sit proxima Hitherto of criminal Pleas that are perpetrated against the King and Common-wealth mediately but principaliter in singulas personas I proceed to those that immediately touch the King and his Crown and they are 1. High Treason Stamford telleth us that the King is the Preserver nourisher and defender of all his People and that by his great travel study and labour his People only enjoy their Lives Lands and Goods And as the body of Man cannot live without a Head but will fall to the ground so the Realm cannot be governed without a Head which is the King Agreable to that of Seneca Ille est vinculum per quod Respublica cohaeret c. And therefore we his loving Subjects are obliged to watch for that him wakes for us And primum virtutis opus est servare servantem caetera If so what an abominable thing must it be to be a violator of Kingly Majesty Crime de Majesty sayes the Mirror est un peche horrible fait al Roy c. Tacitus calls Crimen Majestatis vinculum necessitatem silendi Omnium accusationum complementum And in the Civil Law it is said thus Proximum Sacrilegio crimen est quod Majestatis dicitur id est crimini quo divina Majestas pulsatur High Treason does extend to several parts or kinds viz. Death to Violation to Leaving of Warr to Adhering to the Kings Enemies to Counterfeiting the Great Seal Privy Seal and the Kings Coyn to the bringing into this Realm counterfeit Money to the similitude of His Majesties Coyn of these several parts in their order 1. Touching Death 1. To compass or imagine the death of the King is Crimen laesae Majestatis as appears by Britton and Fleta Briiton thus Grand Treason est a compasser nostre mort Fleta hath this words Si quis mortem Regis ausu temerario machinatus fuerit c. quamvis voluntatem non perduxit ad effectum To depose the King or to take the King by force and strong hand and to imprison him untill he hath yeilded to certain demands this is a sufficient overt Act to prove the compassing and imagination of the death of the King for this is upon the matter to make the King subject and to despoil him of his Kingly Office of Royal Government And so it was resolved by all the Judges of England Hill 1. Jac. Regis in the Case of the Lord Cobham Lord Gray Watson and Clarke Seminary Priests So if divers conspire the death of the King and the manner how and thereupon provide weapons powder poyson assay harness send Letters c. or the like for execution of the Conspiracy this is a sufficient overt act to prove the compassing and imagination of the Kings death If any man shall attempt to make himself so strong that the King shall not be able to resist him he is guilty of Rebellion In the like manner the Law interpreteth that in every Rebellion there is a machination against the life of the King and his deposing For a Rebel will not suffer that King to live or reign which may afterwards punish or revenge such the treason or Rebellion These things are confirmed 1. by the Imperial or Civil Law whereby to do any thing against the safety of the Prince is holden to be treason 2. By the force of reason because it cannot be that which hath once given Law to the King should ever permit that the King should recover his former Authority or live least at any time he should recover it 3. By examplss drawn out of our English History as of Edward the Second and Richard the Second who being by force of Armes gotten by Subjects into their power were not long after deposed also and made away The Civil Law Quamvis regulariter ratione solius consensus nemo ad poenam obligatur sed secuto demum actu Aliud tamen obtinet in crimine in Principe in quo voluntas punitur sed intellige talem voluntatem cum qua conjunctum est initium facti i.e. factio vel conjuratio Sola enim nuda voluntas puniri nequit Note that there is difference taken by our Law between felony and High treason for it is not felony unless there be some act done Non efficit conatus nisi sequatur effectus But if one compass or imagine the death of the King who is the Head of the Common-wealth and declares his compassing or imagination by words or Writing it is High treason Doct. and Stud. lib. 2. cap. 41. Co. 3. Inst f. 5. 12. H. 8. 36. b. 13. H. 8. 13. Bendlones Rep. Smith v. Spurle And therefore these following words were adjudged High treason viz. If the King dye without Issue Male that he would be King and also the party arraigned spake that if the King should commit him to Prison that he would kill him with his dagger So one Crohagan an Irish man was arraigned of Treason for that he being the Kings Subject at Lisbone in Spain used
belli causa and contra jus Gentium yet the killing of him is no Treason within the Stat. of 25. E. 3. until itl be so declared by Parliament as it was in the Case of Kerby and Algere who were attainted for the killing of John Imperial Ambassadour from the State of Genoa but that Declaration was taken away by the Statute of 1. Mar. Whether an Ambassadour which raiseth Rebellion ahainst the Prince to whom he is sent may enjoy the priviledge of an Ambassadour and be not subject to punishment as an Enemy Such an Ambassadour hath by the Law of Nations and by the Civil Law of the Romans forfeited all the Priviledges of an Ambassadour and is subject to punishment If a Foreign Ambassadour fayes Coke committeth here in our Realm any crime which is contra jus Gentium as Treason Felony Adultery or any other crime which is against the Law of Nations he looseth the Priviledg and Dignity of an Ambassadour as unworthy of so high a Place and may be punished here as any other private Alien and not to be remanded to his Soveraign but of courtesy But if any thing be malum prohibitum by any Act of Parliament Private Law or Custom of the Realm which is not malum in se jure Gentium nor contra jus Gentium an Embassadour residing here shall not be bound by any of them but otherwise it is of the Subjects of either Kingdom c. And the reason why private Aliens are bound by our Acts of Parliament Private Laws and Customs is given by the learned Grotius viz. Quia ad gubernationem Populi moraliter necessarium est ut qui ei vel ad tempus se admiscent quod fit intrando territorium ij conformes reddant ejus Populi institutis Whether a Foreign Prince by his dwelling and residing here can commit Treason When a Foreign Prince comes with leave into England he subjects himself under the Protection of the King of England and as by well doing he enjoyes the benefit of the Laws so by ill doing he is subject to the Equity thereof according to that saying of the Lawers He deserveth not the benefit of the Law which offendeth against the Law Otherwise better were the condition of a Foreign Prince offending in another Princes Kingdom than his that reigneth well He is thought also to be a Subject though not originary yet temporary because two absolute Princes in respect of Royal Authority cannot be in one Kingdom at once and therefore it is a received opinion of the learned in the Laws A King without his own Dominions except it be in an Expedition of War is but a private Man and consequently can neither confer nor exercise Royalties Moreover it is said that such a Prince by his offence looseth merum Imperium his meer and absolute Soveraignty and that such are subject by their dwelling only and place of abode might commit Treason and that a Prince hath power or Jurisdict over another Prince that is his equal as often as any hath subjected himself under the Judgment of his Equal either by express words or Covert Contract or by offending within the Jurisdiction of his Equal Vide Cambdens Eliz. in 29. year of her Reign touching the Queen of Scots 2. Misprision of Treason Touching Misprision 4 things are to be principally observed The Etymology of the word its Description its Division and the Punishment therefore 1. The Etymology or Origination of the word Misprision cometh of the French word Mespris which properly signifieth neglect or contempt for mes in Composition in the French signifieth mal as mis doth in the English Tongue as mischance for an ill chance and so Misprise is ill apprehended or known 2. It s Description In legal understanding Misprision of treason is either when one knoweth that another hath committed treason and will not discover him to the King or to the Councel or to any Magistrate but doth conceal the same it is when one hath committed some hainous offence under the degree of treason 3. It s Division Miâ—prision of treason is twofold Passive called 〈◊〉 omissionâ—is as in concealment oâ— not discovery of treason And therefore by the Statute of 5. E 6. concealment or keeping secret of any High treason iâ— declared only Misprision of Treason As for example It is Misprision of High treason in concealing of a Bull from the Pope of Rome So the receiving of one that hath counterfeited the Kings Coyn and comforting of him knowing him to have counterfeited the King Coyn is but a Misprision But by the Common Law concealment of High treason was Treason as appeareth in the Case of the Lord Scrope anno 3. H 5 and by Bracton lib. 3. f. 118. b 119. a. And with our Common Law the words of Isocrates to Nicâ—oles are agreable viz. Eadem poena digni sunt supprimentes hujusmodi faciâ—us qua facinorosi 2. Active called Crimen commissionis as in committing some heinous offence under the degree of Treason as when one fixes an old Seale of a Patent to a new Patent of Non-Residence this is holden to be a Misprision of Treason only for it is an abuse of the great Seale and not counterfeiting of it So if a man know Money to be counterfeit and bring the same out of Ireland hither into England and utter it in payment this is but a Misprision and no Treason So the compassings or imaginations against the King by word without an overt Act is a High Misprision 4. The punishment of this offence In all Cases of Misprision of Treason the party offendour shall forfeit his Goods and Dutie for ever and the profits of his Lands for terme of his life and to be imprisoned during life From which punishment if any will save himself that knoweth of any High treason he ought with as much speed as conveniently he may to reveal the saâ—e to the King or some of his Privy Councel or any other Magistrate Note that in every Treason or felony is included Misprision and where any hath committed Treason or felony the King may cause the same to be indicted and arraigned but of Misprision only if he will 3. Robbing the Kings Treasure The Robbing the King of his Treasure or Money is accounted Dumnum iâ— aestimabile for the Kings Treasure is the sinew of War and the honour and safety of the King in time of Peace The Civil Law doth accord with our Law in this point Peouniae nervus Reipublicae seu beâ—â—iâ—ur itâ—a Imperium sine vectigalibus nullo modo esse potest Cicero Militares expansâ—e Hostium â—icursions multa regent diligentia non possunt â—itra pecuniam haec agi N. 8. 2. 10. 2. Fourscore and one persons whereof the Abbot of Westminster and 48 of his Monks were part brake into the Receipt and feloniously robbed the King of a hundred thousand pounds
All these fourscore and one were indicted of this felony and committed to the Tower of London c. and this was the occasion of the new building of both parts of the Exchequer which were before of antient building and weak The punishment of this crime in the Civil Law is this Peculatus pâ—ena aquae ignis interdictionem in quam hodie successit deportatio continet Porro qui in eum statum deducitur sicut omnia pristina jura ita bona amittit 4. Bribery Bribery sayes Coke is a great Misprision when any man in Judicial place takes any Fee or Pension Robe or Livery Gift Reward or Brocage of any person that hath to do before him any way for doing his Office or by colour of his Office but of the King only unless it be of meat and drink and that of small value upon divers and grevious punishments Having given you a description of Bribery I propose these Queries with Resolutions upon them and then shew what the Civil Law saith touching Bribery and Reward Whether Bribery can be committed although there be no suit depending in fota contentioso Bribery may be committed not only when a Suit dependeth in foro contentioso but also when any in Judicial place doth any thing virtute or colore Officii though there be no Suit at all For example if the Lord Treasurer for any gift or brocage shall make any Customer Controller or any Officer or Minister of the King this is Bribery for he ought to take nothing in that Case by the Statutes of 12. R. 2. c 2. 5. E. 6. 5. 6. Co. Litt. f. 234. a. Co. 3. Inst f. 154. Hobarts Reports Roy v. Bishop of Norwich f. 75. but that he make all such Officers and Ministers of the best and most lawfull Men and sufficient for their estimation and knowledg These Laws aforementioned made contra crimen Ambitus are worthy to be known by all but more worthy to be put in execution for they prevent Bribery and extortion They that buy will sell Whether this offence of Bribery can be perpetrated by one that hath a Judicial place in the Ecclesiastical Court The Statute of 5 E. 6. c. 16. doth extend as well to Ecclesiastical Office as temporal which concern the Administration and execution of Justice and therefore any Chief Judicial Officer Ecclesiastical taking any thing virtute or colore Officii for any Office Ministerial or Judicial is guilty of Bribery Touching Gifts and Bribery take notice what the Civil Law sayes Non in totum Xeniis abstinere debebit Proconsul sed modum adjicere ut neque morose in totum abstineat neque avare modum Xeniorum excedat quam rem Divus Severus Imperator Antonius clegantissime epistola sunt moderati cujus epistolae verba haec sunt Quantum ad Xenia pertinet Audi quid sentimus Vetus preverbium est neque omnia neque quovis tempore neque ab omnibus Nam valde inhumanum est a nemine accipere sed passim vilissimum est omnia avarissimum Imo non est inhumanum Nam munera exâ—oecant oculos sapientum ac pervertunt verba Justorum verum hic agitur saies Gothofredus de muneribus quae dantur Proconsuli ut hospiti non ut Judici Et hic aperte Xenia ut appellat quoque hic Jurisconsultus Xeniola distinguntur a dono munere seu muâ—terum qualitate Aliud ii est munus aliud Xenion Xeniolon Lege Julia repetundarum tenetur qui cum aliquam potestatem haberet pecuniam ob judicandum decernendumque acceperit Qui munus publice mandatum accept a pecunia rumperunt crimine repetundarum postulantur 5. Extortion Extortion is a Misprision by wresting or unlawfully taking by any Officer by Colour of his Office any money or valuable thing of or from any Man either that is not due or more then is or before it be due Quod non est debitum vel quod est ultra debitum vel ante tempus quod est debitum Of this crime it is said that in no other than Robbery and another saith that it is more odious than Robbery for Robbery is apparent and hath a face of a crime but extortion puts on the vizor of vertue for expedition of Justice and the like and it is ever accompany'd with that grevious sin of perjury we call it in Latin Crimen expilationis seu concussionis But the Quaere may be whether Extortion and Exaction are all one It is answered They are not for there is this difference taken between Exaction and Extortion Extortion is where an Officer demandeth and wresteth a greater summe or reward than his just Fee And Exaction is where an Officer or other Man demandeth and wresteth a Fee or reward where no Fee or reward is due at all 6. Striking in the Kings Courts where he resides personally or by Representation If any Man in Westminster Hall or in any other Place sitting the Courts of Chancery the Kings Bench the Common Bench the Exchequer or before Justices of Assize or Justices of Oyer Terminer shall draw a weapon upon a Judge or Justice though he strike not this is a great Misprision for the which he shall loss his right hand and forfeit his Lands and goods and his Body to perpetual imprisonment The reason is because it tendeth ad impedimentum Legis terrae So it is if in Westminster Hall or any other Place sitting the said Courts there or before Justices of Assize or Oyer and Terminer and within the view of the same a Man doth strike a Jury or any other with weapon hand shoulder elbow or foot he shall have the like punishment but in that case if he make an assault and strike not the offender shall not have the like punishment One Peter Caery was indicted for drawing his sword in Aula Westm sedentibus Curiis and in disturbing the Sheriff in making an Arrest upon one T. by force of a Bill of Middlesex and being arraigned and found guilty had Judgment of perpetual Imprisonment and to pay one hundred pounds to the Queen And note that upon the evidence it appeared to be upon the stairs ascending the Court of Wards and so out of the view of the Courts But Popham said although it were out of the view of the Courts yet if the Indictment had been as it ought to have been viz. coram Domina Regina the Judgment should have been that his right hand should have been cut off and that he should forfeit all his Lands and Chattels and have perpetual Imprisonment St William Waller was indicted for that he in the Palace of Westminster neer the Great Hall the Justices in the Kings Bench Chancery and Common Bench judicially sitting to hear Causes made an assault and affray upon Sr Thomas Reignolds and beat him in disturbance of the Law and
Order of Religion or Clerks or Persons attainted of felony or non compos mentis cannot be Approvours Now an Approvour is he who hath committed some felony which he confesseth and appealeth or approveth that is to say accuseth others which were coadjutours or helpers with him in doing the same or other felonies which thing he will approve and this proof is to be either by Battaile or by the Countrey at his election that appealed This Accusation is often done before the Coroner who either is a signed to the felon by the Court to take and record that which he saith or is called by the felon himself and required for the good of the Prince and Common-wealth to record that which he shall say If upon his appeal all those Partners be convicted the King ex merito Justitioe is to pardon him But it is in the discretion of the Court either to suffer him to be an Approver or after his approvement to respite Judgment and execution until he hath convicted all his Partners Note If a Man that is of good same be appealed by an approver by which he is apprehended and kept in prison yet he may have a writ to be directed to the Sheriff commanding him to suffer the Party appealed to be Bayled by good sureties But if a Man appealed by an approver be kept in prison and afterwards the Approver dieth there he may sue a Writ directed to the Sheriff to suffer him to be Bayled upon good surety if he be not a notorious felon although he be not of good fame Fitzh N. B 250. d. Note further that before Indictment no person can approve because if his approvement be false no Judgment whatsoever he confessed can be given against him unless he be indicted and no Judgment can be given against him if his Appeal be false but of the offence contained in the Indictment and so are the Books to be understood Thus much of the Party accusing As for the party accused or appealed he is always arraigned either as principal or accessary Of these distinctly and apart 1. Of Principals It is a sure rule that in alta proditione nullus potest esse accessorius sed Principalis solummodo As if many men conspire to Levy War and some of them do Levy the same according to the conspiracy this is High treason in all for in Treason all be principals If a man committeth Treason and thereby becometh a Traitor if any other man knowing him to be a Traitor doth receive comfort and aid him he is guilty of Treason as principal for that there be no accessaries in High Treason Note that in the lowest offences there are no accessaries but all are principals as in Riots Routs c. There is another rule Nullus dicitur felo principalis nisi actor aut qui proesens aut auxilians actorem ad feloniam faciendam But this rule hath his exceptions for in case of poysoning if one layeth poyson for one or infuseth it into a broth or the like albeit he be not present when the same is taken and either the party intended or another is poysoned yet he is a principal and in that case both the principal and procurer or accessory may be absent So there is a felony wherein all be principals as well before as after though they be absent at the doing of the felony but this is specially provided by the Statute of 3. H. 7. c. 2. of Taking Women against their wills Note If any be present abetting and aiding any to do an Act though the offence be personal and to be done by one only as to commit a Rape not only he that doth the Act is a Principal but also they that be present abetting and aiding the misdoer are principalls also 2. Of Accessary In case of felony as there be principals so there be Accessories and accessories be of two sorts by the Common Law and by the Statute Law Accessory by the Common Law is also of two sorts § 1. Accessory before the offence or fact and it is he that commandeth or procureth an other to commit felony and is not there present himself when the other doth it but if he be present then he is also a principal As where I S. doth hold I. X. and commands I. D. to kill him whereupon I. D. doth give him a wound to his heart whereof he instantly dies It is held that both be principals because both are parties to the wound 13. H. 7. 10. a. So a Woman servant conspired to rob her Mistress and brought a Stranger to the Bed-side where the Mistress lay asleep the Stranger killed the servant silent nothing doing but holding the candle the two Chief Justices and Hare though the Servant a Traitress and a principal If a Man counselleth a Woman to murther the Child being in her Body and after the Child is born and then is mudered by the Woman in the absence of him that so gave the Counsel yet he is accessary before the fact by his counselling before the birth of the Infant and not countermanding it Note that in Man-slaughter a Man cannot be accessary before the fact for Man-slaughter ensueth upon a sudden debate or Affray for if it be premeditated it is murder 2. Accessory after the offence and it is he that receiveth favoureth aideth or comforteteth any Man that hath done any murder or other felony whereof he hath knowledge such an accessory shall be punished and shall have Judgment of life and member as well as the principal which did the felony But the Quere may be whether one may be accessory to an accessory It is answered that one may if one feloniously receive another that is accessory to felony there the receiver is an accessory Thus much of accessories by the Common Law Accessory by the Ssatute Law is such a one that abbeteth counselleth or receiveth any Man which committeth or hath committed any offence made felony by Statute for although though the Statute doth not make mention of accessories abettours c. yet they are included by the interpretation of the said Statutes Because whensoever an offence is made felony by act of Parliament there shall be accessories before and after as if it had been made a felony by the Common Law For the further understanding of accessories it will not be unnecessary to give the Reader some certain Rules touching them and then some Queries Accessorius sequitur naturam sui principalis As if the Wife procure one to murder her Husband and doth it accordingly in this case the Wife being absent is but accessory aud shall be hanged and not burnt because the accessory cannot be guilty of Petit treason where the principal is not guilty but of murder and accessorium naturam sequi congruit principalis The accessory must follow the nature of the principal 2. bi factum nullunt ibi
Appeal brought but that of common presumption the Appellant hath malice against the Apellee and therefore if the Judges should in those Cases shew themselves to Instruct the Appellees the Appellants would grutch and think them partial and therefore as well of the Indempnity of the Court as of the Appellee in that Case that he be not guilty the Law suffereth the Appellee to have Councel but when a man is Indicted at the Kings Suit the King intendeth nothing but Justice with Favour and that is to the rest and quietness of his faithful Subjects and to pull away Misdoers among them charitably and therefore the King will be contented that his Justices shall help forth the Offenders according to the Truth as far as Reason and Justice may suffer Note that in Sâ—otland in all Criminal Cases yea in cases of High Treason Pars rea may have Councel learned Thus much of the Assistants There is in Criminal or Publique Judgement a two-fold Judg one of matter of Fact and that is the Iury whose Office is to find out the truth of the Fact the other of Law-matters and that is the Kings Justice whose Office is to find out the truth of the Law Ad questionem facti nen respondent Iudices ita ad qnoestionem Iuris non respondent Iuratores Of these particularly 1. Of the Iury. Iurors ought to be persons competent and that they be such it is required that every Juror that is returned for the Tryal of the life of man ought to have three qualities 1. He ought to be Dwelling most near to the place where the question is moved for Lex intendit vicinum vicini facta seire 2. He that passeth in an Enquest of Life and death ought to have Lands and Tenements to the value of 40 Shillings 3. He ought to be least suspicious that is to be indifferent as he stands unsworn and then he is accounted Liber legalis homo otherwise he may be challenged and not sufferred to be sworn The Determination of the matter of fact by Jurors is termed in our Law a Verdict in Latin Veredictum quasi dictum veri satis And of Verdicts some are general some special or at large It is called a Special Verdict or at Large because the Jurours find the special matter atlarge leave the Judgment of Law thereupon to the Court Of which kind of Verdict it is said Omnis conclusio boni veri Judicii sequitur ex bonis veris praemissis dictis Juratorum Touching special Verdicts in Crown matters Vide Cro. 3. part Hallowayes case Cookes case f. 537. 2. Of the Judge in matters of Law The Judges that are to decide and discusse matters in Law are bound to observe these particulars § 1. They ought to judge secundum allegata probata Quotieseunque sententiam fert Judex secundum allegata probata ferre debet 2. They ought to see that the Indictment Tryal and other proceeding be good and sufficient in Law otherwise they will by their erronious Judgment attaint the Prisoner unjustly 3. The Court ought to be instead of Councel for the Prisoner to see that nothing be urged against him contrary to Law and right nay any Learned Man that is present may informe the Court for the benefit of the Prisoner of any thing that may make the proceedings erronious 4. The Judges ought not to deliver their opinions before hand of any Criminal cause that may come before them judicially to the end that the Tryal may be more indifferent seeing the safety of the Prisoner consisteth in the indifferency of the Court And how can they be indifferent who have delivered their opinions before hand without hearing of the party when a smal addition or substraction may alter the Case 5. Judges ought in giving Sentence especially in ambiguous Cases to avoid precipitation because ad poenitentiam properat cito qui judicat Festinatio Justitiae noverca Touching Temerity or Hastiness take these foreign Authors Temeritas est damnare quod nescias sayes Seneca Temeritate omnis actio vacare debet Cicero I. Offic. Nibil temeritate turpius Id. de Natura Nihil a gravitate Sapientis temeritate disiunctius 4. Academ Deliberabo Lex vult nibil temere fieri sayes Seneca lib. 2. Controv. 11. Hitherto of the Persons that are conversant in Judgment touching publick Crimes or offences 7. Of the Matters of Judgments Criminal and how they are brought to a judicial Decision The things or matters of publick or criminal Judgments are Causes proceeding from High treason Felony or other Misdemeanours Touching High treason and Felony two things are to be observed 1. In antient time every Treason was comprehended under the name of Felony but not e contra and therefore in our antient Books by the Pardon of all felonies High treason or Counterfeiting the Great Seal and of the Kings Coyn c. was pardoned But the Law now is and of long time hath been otherwise holden And therefore by the Law at this day under the word Felony in all commissions c. are included Petit treason Murder Homicide Burning of Houses Burglary Robbery Rape c. Chance-medley Se defendendo and Petit Larceny but not High treason for it is not comprehended under the word Felony and therefore ought to be especially named in the Kings Pardon or Charter 2. That criminal or publick Causes are called Pleas of the Crown but they are not so called as some have said because the King Jure Coronae shall have the Suite and Common Pleas because they be held by Common Persons for a Plea of the Crown may be holden betwixt Common Persons as an Appeal of Murder Robbery Rape Mayhem c. and the King may be party to a Common Plea as a Qâ—are impedit and the like But now how these criminal matters are brought to a judicial hearing is the question It is answered that they are brought by way of Accusation and Exception Accusation doth proceed either by way of Appeal or by way of Indictment and first of Appeals Appeal Appellum cometh of the French word Appeller that signifieth to accuse or to appeal or appeach An Appeal is therefore an Accusation of one upon another with a purpose to attaint him of Felony by words ordained for it Now Appeals are of three sorts 1. Of wrong to his Successor whose heir he is and that is only of Death which is of two sorts of Murder of Manslaughter but of Chaucemedley no Appeal doth lye As touching Appeal of Murder this Quaere is put Qu. Whether Tryal of Murder by Appeal ought to be brought in the County where the fact was committed Resp It is adjudged that in an Appeal of Murder the writ shall abate if it be not brought in the County where the fact was committed for it is against a fundamental Rule of Law that a Tryal of
murder by Appeal or otherwise shall be out of the County where it is perpetrated And for this cause it was doubted at the Common Law where a stroak were given in one County and death ensued in another how it should be tryed And to avoid this doubt the Stat. of 2. E. 6. was made But it alwaies was clear that a fact in one County ought not to be tryed in another Note the Stat. of 26. H. 8. c. 6. allows that Indictments may be in County's next adjoyning but there is not any mention of Appeals and for this reason Certioraries have been granted to remove Indictments out of the Grand Sessions in Wales 2. Of wrong to the Husband and is by the Wife only of the death of her Husband to be prosecuted Touching this kind of Appeal I propose these Qâ—eries with Resolutions on them Qu. 1. Whether a Wife de facto shall have an Appeal Resp Some do hold and so do I that a Wife de facto shall have an Appeal of the death of her Husband but only she that is Wife de â—ure in fâ—vorem vitae and that there ne unques â—ccouple en loyal Matrimony shall be taken de jure strictly Qu. 2. Whether the Wife can have an Appeal although she cannot have a Writ of Dower Resp The Wife shall have an Appeal where she cannot have a Writ of Dower as if she Elope c. she is barred of her Dower but not of her Appeal and the reason is for that the Stat. barreth her of her Dower but not of her Appeal So if the Husband be attainted of Treason or Petit treason his Wife shall not be endowed and yet if any do kill him the Wife shall have an Appeal for notwithstanding the Attainder he remained her Husband Qu. 3. Whether she ought to be sole and unmarried that brings an Appeal of her Husbands Death Resp It is requisite that she be sole and unmarried that makes this Appeal for if she marry again her Appeal is gone though the new married Husband be dead within the year and day after his death that was slain Qu. 4. Whether the taking of a second Husband after Judgment and before Execution can binder the Execution of the Judgment Resp Not only a Widdow which hath an Appeal hanging abateth her Appeal and loseth it force by new Marriage but also if after Judgment and before Execution she take an Husband she loseth the Execution of the Judgment Qu. 5 What is the true reason why a Woman hath an Appeal de morte Viri Resp The reason wherefore this Action is given to a Widdow is not as Glanvil makes it Quia una cara est vir uxor for then the Baron might have an Appeal de morte uxoris which is never granted but her heir shall have it But the true reason why a Woman hath the Appeal de morte Viri is because by his death she is thought less able to live and maintain her self that therefore when she taketh another Husband cessante causa cessat effectus and her Appeal is gone as la Widdowes Quarentine is determined when she is once remarried 3. Of wrong done to the Appellants themselves as Robbery Rape and Maihem If in an Appeal of Robbery the Plaintiff omit any of the goods stoln they are forfeit to the King for the favour which the Law persumeth the Plaintiff beareth to the Felon and for that he cannot have restitution for more then is in his Appeal If the Jury find in an Appeal of Robbery for goods that the Defendant found them in the High-way in this case the Plaintiff for his false Appeal â—eking the blood of the Innocent shall forfeit his goods to the King If any Virgin Widdow or single Woman be ravished she her self may sue an Appeal of Rape prosecute the Felon to death and the Kings Pardon cannot aid him But if a Feme Covert be ravished she cannot have an Appeal without her Husband as appears 8. H. 4. 21. If a Feme Covert be ravished and consent to the Ravisher the Husband alone may have the Appeal and this by the Stat. of 6. R. 2. c. 6. And the Husband that this Statute speaketh of which may sue the Appeal must be a lawful Husband in Right and possession for ne unques accouple en loyal matrimony is a good Plea against him An Appeal of Maihem was brought by one Milles and the Maihem was assigned in his shoulder and the Defendant demanded the view and it was said that he should not have it because it was done de son tort demesue also it was said that Surgeons may heal and cure him and although he shall be tryed by Inspection of the Court or by Chirurgeons it was held be it one way or other it is peremptory for him c. It was held by all the Justices of the Kings Bench that in an Appeal of Maihem if the Defendant pray that the Maihem may be examined if the Justices or Surveyors which they require be in doubt whether it be a Maihem or not the Judges may refuse the examination and compel the Party to put it upon the Country Thus much of wrong done to the Appellants themselves I shall conclude this Learning touching Appeals with these Queries Qu. 1. Whether all Appeals ought to be sued in proper Person Resp It is answered that all Appeals are to be sued in proper Person and not by Attorney as Appeal of Maihem must be in proper Person A Woman which was Crossement enseint sued this Appeal and the Defendant was attainted the Womans Appearance was recorded for the whole Terme and yet by the better opinion she might not pray Execution by her Councel but ought to come in proper person therefore one of the Judges did ride to Islington to her to see if she were alive and desired Execution which she required and the Defendant had Judgment Qu. 2. Whether an Appeal may be commenced more then one way Resp It is answered that Appeals are commenced two wayes either by Writ or by Bill 1. By Writ when a Writ is purchased out of the Chancery by one Man against another commanding him that he shall appeal a third Man of some felony or other offence by him committed and to find Pledges that he shall do this with effect and this Writ is to be delivered to the Sheriff to be recorded 2. By Bill when a Man of himself giveth his Accusation of another Man in Writing to the Sheriff or Coroner and taketh upon himself the burthen of appealing him that is named in the said Writing And note that there is a diversity worthy of observation betwixt an Appeal by Bill and by Writ for in the Appeal by Original Writ both principals and accessories are generally charged alike without any distinction who be principals and who be accessories but otherwise in the Appeal by Bill Thus much
of the Accusation by way of Appeal I proceed now to speak of the other kind of Accusation viz. by Indictment Indictment cometh of the French word Enditer and signifieth in Law an Accusation found by an Enquest of 12 Men or more upon their Oaths and the Accusation in Latin is called Indictamentum And as the Appeal is ever the Suite of the Party so the Indictment is alwayes the Suite of the King and as it were his Declaration For the clearer understanding of Indictments take these following Rules That there be words so appropriated to offences criminal that they cannot be Legally by any other words or Periphrasis The word Rapuit in an Indictment of Rape must be used for carnaliter cognovit eam or the like will not serve Co. Lit. 124. a. Co. 2. Inst 180. Cro. 2. part Fitzwilliams Case An Indictment Quod felonice ex malitia sua praecogitata occidit such a one without saying Murdravit is no Indictment for Murther although these words Tantamount Cro. 3. part Fitzwilliams Case Co. l. 4. Brookes Case 39. b. 8. E. 6. Dyer 69. a. 304. b. No Indictment can be of High treason without this word proditorie Co. 3. Inst f. 15 4. In an Indictment of Maihem Maihemavit cannot be expressed by any word as mutilavit truncavit or the like Co. Litt. 126. b. The word Felonice must be used in all Indictments of Felony and cannot be expressed by any other word Co. Litt. 391. a. False Latine shall not quash an Indictment if the word be sensible Co. leb 5. Lowes Case It is moved in Arrest of Judgment that an Indictment was not good being fecerunt whereas it was found only Billa vera against one sed non allocatur Because it was exhibited against two and it is but false Latine Misrecital of a Statute being fatal in Indictments the sure way is to draw the Indictment with conclusion contra formam Statati and with no Recital of the Act. Co. l. 4. 48. a. Every Indictment ought to have the Addition of the Party indicted and his place of Abode Cro. 2. part Reads Case and Johnsons Case 610. In all Cases of death the word percussit ought to be used except in case of poysoning Co. lib. 5. Longs Case Where a Man indicted is not convicted or acquitted he may be arraigned upon a new Indictment Cro. 3. part Withipools Case Where the substance of the Indictment no matter for circumstances As if A. be indicted of murâ—â— viz. that he of malice prepensed killed IS A. pleadeth that he is not guilty mode forma yet the Jury may find him guilty of Man-slaughter without malice prepensed because the killing of IS is the matter and malice prepensed is but a circumstance From Accusation both by way of Appeal and Indictment which is as it were the Declaration I proceed to the Pleas of the Parties accused which are denominated exceptions Now the Pleas or Exceptions in Indictments or Appeals are these § Auterfoitz attaint d'un auter offence Auterfoitz Acquit Auterfoitz convict be mesme le felony devant Iudgement Auterfoitz convict d'un auter felony auterfoitz attaint de mesme lz offence Of these briefly in order 1. Auterfoitz attaint d'un auter Offence It is a sore saying which some Men have to plead for themselves viz. That they are already condemned to be hanged and ask Judgment whether during the attainder they should answer to the selony whereof they are condemned or to any other And this plea serveth whether the Party condemned hath already forfeited as much as he can forfeit so that it is to no purpose to travel him any further But in some special cases when there is some end of it a Man already condemned may be arraigned again As if a Man attainted of felony were guilty of Treason also at the time of the felony committed he may now be put to answer the Treason notwithstanding his Attainder of felony because the King thereby was entitled to have the forfeiture of all his Landes of whomsoever they were holden 1. H. 6. 5. Otherwise it is if the Treason were committed after the Felony or at the least if it were after the Attainder had of the felony for then the Title vested in the Seigniours before the Kings Title might not be devised by matter accruing ex post facto but if a Man be attainted of Treason he cannot be after attainted of a former Treason v. Cro. 2. part Sr Walter Rawleighs Case 495. But the Queries may be Qu. 1. Whether in divers Appeals of Robbery against one Person be shall be attaint at every one of their Suits Resp It is answered that if divers Men have divers Appeals of Robbery against one to the end that every Man may have again his goods wereof he was robbed by making fresh Suit he shall be attaint at every one of their Suits Qu. 2. Whether an Appeal of Robbery doth lye for a Robbery done before the felony of which the Party was attainted Resp It is answered that the Party may have his Appeal of Robbery for a Robbery done before the felony whereof he was attainted because in the Appeal he is to have Restitution of his goods besides Judgment of death Qu. 3. Whether a Man attainted of Petit Larceny can be after attainted of Felony Resp It is answered If a Man be attainted of Petit Larceny he may be attainted of felony for the which he shall have Judgment of death because it is an higher offence and is to have another Judgment Qu. 4. Whether a Man attainted of felony and pardoned shall answer at the Kings Suit to other felonies committed before and whereof he was not indicted at the time of the Attainder Resp It is answered that per aliquos videtur quod ita as well as at the Suit of the Party in an Appeal yet some held otherwise 10. H 4. That a Man can die but once at the Suit of the King and he that is pardoned is as a New Man all Judgments as against the King being determined But note If a Man be adjudged to his Penance of Paine â—ast and Dure yet he may be â—impeached for any former felony because the Judgment is not given for the felony but for his Contumacy 2. Auterfoitz acquit This Plea the Common Law doth allow because it commandeth that a Mans life should not be put in Jeopardy twice for one and the same offence But then the Acquital must be of the very same offence or else his Plea is to no purpose Therefore if two Men be indicted of felony as principals and afterwards by another Indictment it is found that one of them did the felony and the other did feloniously receive him after the felony committed he that is secondarily indicted and arraigned as accessary shall not be discharged by pleading arraignment and acquital upon the first Indictment for the offence
proceeding and the Execution be erronious the Execution only shall be reversed 2. Of Falsifying Attainder To falsify in Legal understanding is to prove false that is to avoid or to defeat the Attainder in Latin Falsare seu falsificare falsum facere Wheresoever the Judgment is void or coram non Judice the party is not driven to his Writ of error but may falsify the ttainder by Plea shewing the special matter which proveth it void or coram non Judice In which case the Party forfeiteth neither Lands nor Goods If a Man committeth Treason or felony and is thereof attainted in due form of Law and after this Treason or Felony is pardoned by a general Pardon hereby the foundation is self viz. Treason or Felony being by Authority of Parliament is discharged pardoned the Attainder being builded thereupon cann't stand but may be satisfy'd and avoided by Plea for he hath no other Remedy by Writ of error or otherwise If A be indicted before the Coroner for the death of another and that A fled for the same hereby are all the Goods and Chattels of A forfeited which he had at the time of the Verdict given and this cannot be falsified by Traverse If the Party be arraigned upon the same Indictment before Justices of Gaol delivery and is by Verdict acquitted of the Felony and that he did not fly for the same yet he shall forfeit his Goods and Chattels But such a fugam fâ—cit may be satisfy'd by matter in Law for if the Indictment be void or insufficient there is no forfeiture 3. Of Pardons Touching Pardons these particulars are worthy of observation Pardon in Latin is called Perdonatio which is derived a per and dono per is a Preposition and in the Saxon Tongue for is orvor as to forgive is throughly to remit and fore-think is to repeat forbear is to bear with patience A Pardon is a work of Mercy whereby the King doth remit or forgive a felonious offence perpetrated against his Imperial Crown either before Attainder or Conviction or after A Pardon says one is twofold one ex gratia Regis the other per Course del Ley by Course of Law Pardon ex gratia is that which the King in some special regard of the Person or other circumstance sheweth or affordeth upon his prerogative Royal or power Pardon by course of Law is that which the Law in equity affordeth for a light offence as Homicide casual when one killeth a Man having not such meaning West Part. 2. Symb. Tit. Indict sect 46. All Pardons of Treason or Felony says Coke are to be made by the King and in his Name only and are either general or special All Pardon 's either general or special are either by Act of Parliament whereof the Court in some Cases shall take notice or by the Charter of the King which must always be pleaded And these again are either absolute or under Condition Exception or Qualification General Pardons are by Act of Parliament and if any of these Pardons be general and absolute the Court must take notice of them though the party plead it not but would waive the same No particular Pardon be it at the Coronation or any other or any offence or offences whatsoever that is absolute without any condition c. need any Writ of Allowance but when the Pardon is conditional by force of the Act of 10. E. 3. c. 2. there a Writ of Allowance out of Chancery testifying that the Condition is performed viz. surety found according to that Act may be had or the Party may plead the finding of Surety c. and vouch the Record Touching Allowance of Pardons I shall mention two Cases out of Crokes Reports First upon the 14 day of November 1640 Sir Matthew Mennes Knight of the Bath who was convicted of Man-slaughter and had his Clergy and his burning in the hand was respited and now he pleaded his Pardon whereby the burning in the hand and all other Felonies committed by him alia malefacta before 8th of July last were pardoned and there was an especial Clause that he should not find Suretys for his behaviour and the Pardon bore date 31 of Octob. last And although there were many misdemeanors by him after the said 8th of July for which he deserved to be bound to the good behaviour yet he had his Pardon allow'd and was discharged from finding Suretys c. Secondly Sir Henry Linley who was indicted of Treason being brought to the Bar and demanded whether he could say any thing why the Court should not proceed upon the Indictment which was before Commissioners of Oyer Terminer he produced the Queens Pardon without any Writ of Allowance thereof And Pope Second Clerk of the Crown inform'd the Court that the Presidents were that in case of Treason it was used to allow of the Pardon but not in Felony whereupon the Pardon was allowed Thus much of Pardons 4. Of Restitutions All that is forfeited to the King by any Attainder c. he may restore by his Charter But if by the Attainder the Blood be corrupted that must be restor'd by Authority of Parliament and the reason wherefore the King may by his Charters pardon the Execution and restore the Party or his Heirs to the Lands forfeited by the Attainder and remaining in the Crown is for that no Person hath thereby any prejudice but to make restitution of his Blood the King cannot do it but by Act of Parliament because it should be to the prejudice of others And the Rules are Non poterit Rex gratiam facere cum injuria damno aliorum Quod alienum est dare non potest Rex per suam gratiam Quacunqne forma Princeps alienat salvum manet Jus tertii Aliorum honores aliis damnorum occasionem fierinon oportet Note Of Restitutions by Parliament some be in Blood only that is to make his Resort as heir in Blood to the Party attainted and other his Ancestors and not to any Dignity Inheritance of Lands c. and this is Restitutio 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 secundum quid seu in partem And some be general Restitutions to Blood Honours Dignities Inheritance and all that was lost by the Attainder and this is Restitutio in integrum and Restituere generally nihil aliud est quam in pristinum statum reducere Thus now concluding this slender Treatise with the Kings Mercy that is convey'd to his Subjects by Pardons and Restitutions I humbly apply to our most Gracious Soveraign the words which Seneca did once intimate to the Roman Emperor § Occidere contra Legem nemo potest servare nemo praeter te The Author hath written somewhat touching the Satutes of Hue and Cry for the better and more speedy apprehension of such as are guilty of Robberies which should have been placed before under the Title of Robbery but it being by some
inadvertence there omitted the Printer has thought it not much amiss to put it at the end of this Discourse by way of Appendix And thus the Author treats concerning the Statutes of Hue and Cry BY the Statutes of 13. E. 1. of Winton c. 1. 28. E. 3. c. 11 and 28. 1. c. 17. the Country shall answer if the Robbers be not taken By the Statâ—te of 27. Eliz. c. 13. are enacted these particularities § 1. That the Inhabitants of a hundred shall be chargeable with the moyety where a fresh Suit shall cease 2. That the Clerk of the Peace shall prosecute the Suit which Suit commenced shall not cease upon the death or remotion of the said Clerk of the Peace 3. A Remedy for those against whom the Recovery and Execution is had to have Contribution 4. That there shall be no penalty where any of the offenders be apprehended 5. The Suit shall be commenced within one year next after such perpetration or Robbery or else the Person or Persons robbed shall not take any benefit by vertue of any of the said former Laws or Statutes 6. That the Party robbed must give notice and intelligence of the Robbery committed unto some of the Inhabitants of some Town Village or Hamlet near unto the place where any such Robbery shall be committed 7. That the Party robbed shall not have any Action upon any of the Statutes aforesaid except he shall first within twenty days next after such Action to be brought be examined upon his Corporal Oath before some Justice of Peace of the County where the robbery was committed whether he doth know the Parties that committed the Robbery or any of them and then shall become bound to prosecute the offenders Having given a summary of these Statutes upon Hue and Cry I shall present to the Reader several Resolutions given at the Courts of Westminster upon the Statute of Winchester and the Stat. of 27. Eliz. The former you must kow gives penalty and Remedy the latter shews how the Examination shall be and in what time before the Action brought 1. Resolves on the Stat. of Winton A Robbery for which the hundred must answer by force of the Statute of Winton is to be done openly so as the Country may take notice thereof themselves but a robbery done secretly in the House the Country cannot take notice thereof for every one may keep his house as strong as he will at his peril for it was adjudged in Ashpoles Case that the Party robbed needed not to give notice thereof to the Country for it may be the Party robbed was bound or Maimed c. so as he could not make Hue and Cry to give notice A Robbery was done in January presently after the Sun-setting during day light and it was adjudged that the hundred shall answer for the same for it was convenient time for Men to travel or to be about their Business A Robbery was done in the Morning ante lucem the hundred shall not be charged It was held by Anderson and all the Justices that whereas the Stat. of Winchester speakes of Robberies done in the day before night yet if a Robbery be committed in the Morning before day or in the Evening after the day in any time of the night in which Men use commonly to travel that the hundred is answerable for it but if it be at twelve or one of the Clock in the night at which time every one is intended to be in bed the hundred is not answerable for the Robbery The Jury found that the Robbery was done post lucem ejusdem diei ante Solis ortum Anglice After day-break and before Sun-rising and upon this the Court advised and Judgement was given for the Plaintiff and a President shewn Pasch 28. of Eliz. Rot. 130. where the Robbery was done post occasum Solis per diuruum lumen Anglice day light and there adjudged for the Plaintiff If an house be robbed in the day and the Felons escape Hue and Cry being made whether the hundred shall answer for that Robbery by the Stat. of Winton Gawdy and Popham conceived that the hundred shall not be charged For the Stat. of Winton extends only to Robberies done to the Person And was principally made for safeguard of travellors But every one ought to keep his own house at his peril for it is his Castle and no other ought to meddle there therefore it is not reason that any should be charged if he be robbed there Robbery done on a Sunday shall be chargeable to the Country 2. Resolves on the Stat. of 27. Eliz. By the Stat. of 27. Eliz. c. 13. none shall have Action upon the said Statute except the Parties robbed so soon as he may give notice of the same to any of the Inhabitants of any Village Town or Hamlet next to the place where the Robbery was done and if they in pursuit apprehend any of the offenders that will excuse the Town Action upon the Statute of Winton for that one Brook his Servant was robbed and alledges that the Plaintiff himself came before a Justice of Place and was sworn according to the Stat. of 27. Eliz. And after Verdict it was alledged in Arrest of Judgement that the Servant was to be sworn and not the Master and so was the opinion of the Court For the Servant might know the Persons when the Servant was robbed and the Master was not in company and the Intent of the Stat. is that he that had notice shall be sworn and thereupon Judgment was staid Action upon the Stat. of Winton whereas one Palmer the Plaintiffs Servant was robbed within the hundred of 68 pounds by Persons unknown and had made Hue and Cry according to the Stat. and one of the Thieves were taken and the said Palmer had made oath before such a Justice of Peace of the said County next adjoining to the said hundred within 20 daies before this Action brought that he did not know any of the Parties who robbed him that the said hundred had not made him any recompense And upon Not guilty pleaded and tryed at the Bar this Terme and found for the Plaintiff it was moved in Arrest of Judgment that this Action lyes not because the Plaintiff himself was not sworn that he knew not any of the Parties who did the Robbery for it is not sufficient that the Servant who was robbed was sworn for by the Statute of 27. Eliz. the Party who brings the Action ought to make that Oath and it was argued that the Servant who was robbed onght to have brought the Action and then his Oath would have been sufficient But when the Master brings the Action he himself ought to be sworn that he knew not any of the Robbers otherwise he might not bring it and therefore the Action lyes not But it was resolved by the Court that the Action well lyes for the Master and
that the Servants Oath was sufficient for it is properly in his notice that he was robbed and did not know any of the Robbers and the Master knows it not that he was robbed or who were the Persons but by the report of his Servant and it would be inconvenient if the Master should not bring the Action but the Servant might release or compound or discontinue the Suit and so the Master should have the loss by his falshood therefore the Master shall bring the Action and have his Servant who was robbed be his witness whereupon it was adjudged for the Plaintiff Action upon the Stat. of Hue and Cry supposing that he was robbed in such a High way in divisis Hundredorum and that he gave notice thereof to the Inhabitants of the Hundred near to the Place where he was robbed After Verdict for the Plaintiff it was moved in Arrest of Judgment that this declaration is not good because he doth not shew that the High way is within any Hundred And in truth it out to be given to the Inhabitants of both Hundreds and so be divers Presidents that notice was given in the other Hundred to the Inhabitants of that hundred Sed non allocatur wherefore it was adjudged for the Plaintiff Hue and Cry made in the next Vill adjoyning though it were in another County is good enough for a Stranger cannot know the division of Countys Vide Cro. 3. part Merrik v. Hundred de Rapesgate 379. Action upon the Stat. of Winton of Hue and Cry and shews in his Count the said Statute and that such a day he was robbed of so much within that Hundred and that he made Hue and Cry and shews according to the Statute of 27. Eliz. And that within 40 days before the Action brought he was sworn before such a Justice of Peace that he was robbed of so much and did not know any of the Felons that as yet the Defendants had not taken any of the Felons nor satify'd him contra formam Stat. praedict unde Actio accrevit After Verdict for the Plaintiff it was moved that this Declaration was not good because the Action is founded upon two Statutes and both mentioned in the Declaration yet he concludes contra formam Statuti praedicti which is not good and the Court thereupon doubted and appointed Presidents to be searched and after divers Presidents of this Court and the Common Bench shewn unto them wherein some were Contra formam Stat. praedicti and some Statutorum praedictorum And the Court held that the best forme was Statuti praedicti For the Action was grounded only upon the Statute of Winton which gives penalty and remedy the other shews only how the Examination shall be and in what time before the Action brought otherwise he shall not have the Action and Statuti praedicti refers only to the Stat. of Winton which gives the Action therefore the best form to declare is Contra formam Statuti praedicti Thus much of the Satutes touching Hue and Cry FINIS THE TABLE A. Accessories IN what offences Accessories may be and in what not 123 The several sorts of Accessories 124 Accessories by the Common Law what 124 125 Accessories by Statute Law what 125 126 Where the Common Law or Statute Law makes a Felony Accessories are still included 126 Rules touching Accessories Id. Where an Accessory cannot be guilty of Petit-Treason when the principal of Felony Id. Where the Accessory shall not be tried if the Principal hath his Clergy or be pardoned 126 127 Writing of Letters in favour of a Felon will not make the Party an Accessory 129 Instructing a Felon to read will not make an Accessory 129 Perswading Witnesses not to appear will not make an Accessory 129 Quaeries touching Accessories 128 129 c. Affrays The derivation of the Word Affray and the diversity betwixt it and an Assault 106 The punishment of an affray 103 What persons are bound to part Affraies 103 The punishment of those that refuse to part Affraies 103 104 Affraies inquirable in Leetes 106 Appeals The Description and Derivation of an Appeal 136 Who may and who may not Appeal accuse c. 121 Where the Wife shall have an Appeal of the death of the Husband and where not 137 138 Where the Wife shall have an Appeal and yet not be endow'd and e converso Ibid. The true reason why the Wife hath an Appeal de Morte Viri 138 139 She ought to be Sole and unmarried that brings an Appeal 138 The taking of a second Husband after Judgment and before Execution hinders the Execution of the Judgment 138 An Appeal ought to be sued in proper Person 140 141 Appeals how many ways commenced 141 A Diversity betwixt an Appeal by Bill and by Writ Ib. Approver Who may and who may not be an Approver 123 His Description Ib. Where none can be an Approver upon an Appeal 122 Where a Man appealed by an Approver and thereupon kept in prison may be Bailed by good Sureties given 122 Assemblies Assemblies unlawful how dangerous in former times 110 Arraignment Arraignment of a Prisoner what 149 The manner of Arraigning of a delinquent 149 Attainder Where a Man attainted shall be liable to Arrests and Executions for debt 151 152 A Diversity betwixt an Attainder and an Entry into Religion 152 A diversity betwixt purchasing of Lands before and after an Attainder Ib. A Person attainted after a Pardon may have an Action of Battery c. done before the Pardon granted Ib. The several sorts of Attainders 153 A difference betwixt a Person attainted and convicted Ib. Where upon an Attainder of Felony in an Appeal the Defendant shall forfeit no Lands but those he had at the time of Outlawry pronounced secus in an Indictment Ib. Attainders as to Chattels shall relate but unto the Judgment pronounced 154 Battery What it is 50 Who may chastise and correct in a moderate manner Ib. Where a Man may return blows in his own defence or in the defence of another 51 Where a Man may not return or give any blows in his own defence Id. Bribery Bribery what 94 It may be committed though no Suit depending in foro contentioso 94 95 It may be committed by one that is a Judicial Officer in the Ecclesiastical Court 95 Difference betwixt it and Extortion 97 Burglary The Etymology and definition of it 64 65 What shall be said an entry into breaking of an House to make it Burglary Ib. Where it shall be Burglary though but one doth enter Ib. Where a Man may commit Burglary though he breaketh not the House 65 66 What shall be said a Mansion House the breaking whereof makes it Burglary 66 67 A Chamber of Innes of Court or Chancery is a Mansion House 67 To break an House to the intent to beat another not Burglary 68 House breaking 68 69 70 Burning of Houses It s Description 72 What shall be said Burning of Houses to make