attainted by Outlawrie to whom he is appealed or indicted as accessorie without hauing regard to the residue 41 To haue Processe awarded against the Enquest for the triall of the accessorie it is requisite that the attainder of the principall be in the same sute The attainder must be in the same sute in the which he and the accessorie be sued for if he be attainted in another sute that shall not enforce the accessorie to procéede with his Enquest vntill the principall which is sued with him doth appéere or be attainted by processe of outlawrie c. As in appeale of homicide against the principall and accessorie 7. H. 4. 36 and the principall before that time is attainted of the death of the same man vpon an indictment at the Kings sute And the accessory shall pleade for his owne discharge the acquitall of the principall in an other sute so that it be an acquitall for that offence for the which he is charged as accessorie 7. H. 4. 27 42 If the principall be attainted of the death of a man and then dieth The principall attainted and dieth and the Iustices before whom the accessorie is sued haue the record of the same attainder before them then they may procéede against the accessorie otherwise not for it doth by the Record appéere vnto them that hée which was appealed of the fact is by Lawe attainted of felonie according to the foresaid Statute of Westminster 1. though he was not executed therefore The principall standeth mute 43 And though the Lawe be Fit Cor. 58 that an Enquest shall not procéede against the accessorie to trie him vntill the principall doe appeare or be attainted by outlawrie yet if the principall doe appeare and will say nothing but stand mute the accessorie shall be arraigned Sed quaere for the principall is not attainted of felonie Error in the Attainder of the principall 44 If the Attainder of the principall be erronious 2. R. 3. 22. yet the accessorie shall be arraigned for the accessory shall take no aduantage of any errour committed in the attainder of the principall An absured accessorie returneth 45 If one do abiure as accessory and after doth returne againe Fi. Cor. 124 the principall not being attainted the accessorie shall be hanged for that he hath confessed the felonie before the Coroner and did returne without the Kings pardon or licence The accessory tried vpon his owne request 46 If the accessory of his owne desire wil wage battel before the principal be attainted and be subdued therein Fit Cor. 12 or will desire to haue an Enquest to try him before the principall be attainted and be found guiltie therefore In both these Cases he shall be hanged though by the Lawe he was not compellable to either of the said trialles vntill the principall had béene attainted for hée hath aduentured his life in hope to gaine his libertie 47 If the principall be found not guilty The principall found not guiltie by verdict Bracton the accessorie shall be discharged thereby for where there is no déeâ—e there can no force ayde or commaundement hurt in that the intended iniury tooke no effect So that the acquitall of the principall is in Lawe the acquitall of the accessorie The principall dieth in prison before attainder 48 If the principall can not be tried as if he die in prison before he be attainted of the felonie the accessorie shall be thereby discharged for there can none be found accessorie to a felonie Co. l. 4. 43 where there is none attainted to commit the same felonie But otherwise it is if the principall be attainted of the felonie and dieth there the accessorie shall be arraigned and hanged if he be found guiltie The principall attainted of an other felonie 49 If the principall be attainted of another felonie and hanged Fi. Cor. 378. before he is attainted of this felonie whereof he and the accessorie be indicted the accessorie to this felonie shall be discharged thereby And the same Lawe is if hee be attainted of the first felonie though he be not hanged because in that case after attainder he shall not answer to other felonies but onely to robberie and treason The principall slew the paâ—tie in his owne defence 50 If it be found by verdict that the principall slew him Fi. Cor. 116 of whose death he is arraigned in his owne defence the accessory shal be therby discharged And yet the principall shall be enforced to purchase his pardon But this pardon prooueth not that he is guilty in other maner than in his owne defence Notwithstanding in an other pardon it is otherwise for if a principall pleade his pardon to a felony generally without any special matter found which should cause the pardon 2. Ed. 3. 27 Fi. Cor. 260 3. Ass p. 14 42. Ass p. 16 and is by that discharged yet that will not discharge the Accessorie but he shall be hanged if he be found guiltie of the felonie for by that pardon the felony is confessed of the which felonie he praieth to be discharged by the Kings fauour and not by the benefit of lawe as he doth in the other case 3. H. 7. 12 10. H. 4. 5 13. Ed. 4. 3 Bro. Cor. 184 51 And in the like case and vpon the same reason The principall hath his clergie if the principall and accessorie be arraigned of felonie and both be found guilty and the principall doth pray and hath the benefit of his clergie yet the accessorie shal be hanged for by the praying of his clergie the felonie is confessed and the principall in this case is not saued by his innocencie but by a priuiledge in Lawe which the accessorie being no clarke cannot take the benefit of But it is otherwise if there be principall and accessorie and the principall is pardoned or hath his Clergie before iudgement Co. l. 4. 43 the accessorie shall not be arraigned for where there is no fact there is no force and where there is no principall The principall is pardoned or hath his clergie before iudgemeÌ„t there can be no accessorie and no man can be accompted principall before it be so prooued and adiudged by the Lawe and that must be by a iudgement vpon a verdict confession or outlawrie and it is not sufficient that indéed there be a principall vntil that appéereth by a iudgemeÌ„t in Law And the acceptance of pardon or the praying of his clergy is an argumeÌ„t but no iudgement in law that he is guiltie But if the principal after attainder be pardoned or hath his clergie alowed the accessory shal be arraigned and hanged if he be found guiltie for it doth appeare iudicially that he was principall 41. As p. 24 52 The acquitall of the principall is the acquitall of the accessorie as is asaide if it be not in an appeale where the accessorie is to recouer
not yéeld to be iustified and tried by the Law but will either kill himselfe or giue cause to other men to slay him Fi. Cor. 289 290 312. S. Br. 5. for resisting and not submitting his obedience to the Law then he shal forfeit his goods so that this offence be found and presented by twelue men before the Coroner or some Iustices after his death for in this case the default is in the offendor and not in the Law that he came not to lawfull triall of his offence for the law requireth no more but that the supposed offendor shal be safely kept sub custodia legis by imprisonment or maineprise vntill it be tried whether he be an offendor or not But though the person thus slaine shall for his disobedience forfeit his goods béeing not attainted either of treason or felonie yet in the like case he shall not forfeit his lands if hee bee slaine in arresting or after arrest or otherwise die before he be attainted St. 34. E. 3. 12. as it appeareth by the Stat. of an̄ 34. Ed. 3. 12. which hath established That for forfeitures of dead persons not attainted nor adiudged in their liues their heires or land-tenants shall not be impeached or challenged nor of any other forfeiture except the forfeitures in old time adiudged after the death of the persons by presentment in Eyre or in the Kings bench or of felons of themselues or others And yet some doe affirme if a man doe leuie warre or open rebellion against the King or is assistant to his enemies in the field and then is slaine in battell he shall forfeit his lands goods And others doe adde thereunto that the same his Treason and manner of death must also after his death be found by a Iurie super visum corporis Co. li. 4. 57 Pl. Com. 262. 263. before the chiefe Iustice of England being the soueraigne Coroner of the realm and he must returne it into the Kings Bench and make a Record therof and then that person shall forfeit his lands and goods And vpon those words of the sayd Statute of 34. Ed. 3. viz. Except the forfeitures in old time adiudged after the death of the persons by presentment in Eire or in the Kings Bench or c. some doe inferre that if a presentment in Eire or in the Kings Bench be made of such an open rebellion and battell thereupon foughten and of those that manifestly shewing themselues to bée open enemies or rebels to the King were slaine therein that by the words of the same Statute they shall forfeit their lands But if a man bée arrested for counterfeiting the K. great or priuie Seale for forging of his money or for a priuy conspiracie of the death of the King or c. and is slaine in resisting the said arrest or for a rescous attempted before or after the sayd arrest hee shall forfeit his goods but not his lands And if he bée arrested for any of the sayd offences and committed to prison for the same and after doth dye in prison before he bee attainted of any of the sayd offences he shall neither forfeit lands nor goods though he be taken with the manoure viz. found hand hauing and backe bearing for though it is a mischiefe that a man committing high Treason shall forfeit neither life lands or goods yet the law doth rather beare with that mischiefe than to suffer such an inconuenience that a man onely accused or but only a supposed offendor should bée attainted and forfeit his lands and goods where being preuented by death viz. by the hand of God hee cannot come to answer and defend himselfe and by that meanes cannot bée condemned by such lawfull tryall which is meant and specified in the before rehearsed Statute of Magna charta But for the auoiding of questiō and doubt in the case aforesaid they which haue béene knowne parties to such open and manifest rebellions St. 29. H. 6. 1 St. 12. El. 16 St. 29. El. 1 St. 35. El. 5. St. 3. Iac. 2. haue béen of late yeares attainted by Act of Parliament and their lands and goods giuen as forfeit to the King As it appeareth by the stat of Anno 29. H. 6. 13. El. 29. El. 35. El. 3. Iac. The forf of the yeare day and wast 31 There is another forfeiture besides the losse of life lands annuities Fi. Cor. 310 290. 327. and goods wherewith the law hath deuised to punish those that doe commit petit Treason or Felonie and be attainted thereof which is called in Latine the forfeiture of Diem annum vastum the forfeiture of the yeare day and wast which is executed vpon the houses and lands of the offendor that be holden of any other sauing of the king That is the felons houses and lands shall bée seised into the Kings hands where they shall remaine by the space of a yeare and day and then the houses shall be throwne downe to the ground the trées shall be pulled vp by the roots the medowes shal be ploughed vp and all things which the felon did build or plant shal be cast downe digged vp Fitz. Cor. 358. and supplanted Which punishment was ordained in despight of offendors and to shew to others how much the law doth detest murderers committers of burglarie robberie and other felonies and as much as may be to terrifie and discourage others to attempt or practise the like 32 It appeareth by Bracton that by the common law the King should haue had but onely the wast of a Felons lands viz. the benefit to pull downe his houses root vp his trées plough vp his medowes and such other commodities as he could haue raised by spoyling and wasting of the felons houses trées and lands and that then the land so wasted should haue béene presently deliuered to the Lord of the fée of whom the same lands were holden which wast and spoyle was then made without redemption And after by a composition made betwéene the King and the Lords it was agréed By what means the K. came by the yere day and wast That the King should haue the benefit of the felons lands a yeare and a day to redeeme the spoyle and wast which hée might make of the sayd felons lands And the K. graunt by the great Charter made Anno 9. H. 3. St. 9. H. 4. 3 22. tendeth to the same effect viz. Wee will not hold the lands of those that bée conuict of felonie but a yere and a day and then they shall bée deliuered to the Lords of the fées And so it séemeth that King Henrie the third and King Edward the first did hold themselues satisfied with the yeare and day of the felons lands without taking the wast thereof St. 17. E. 2. 16 But after Anno 17. Ed. 2. the Kings Prerogatiues royall béeing expressed or enacted by Parliament amongst others it is ordayned That the King shall haue all the goods of felons which be
at which sessions the said person vpon his reconciliation repentance before the said Iustices at the said sessions shall be deliuered out of prison vpon sufficient surety of his good abearing and behauiour to be then and there taken by the said Iustices for one whole yeare then next ensuing as by the discretion of the said Iustices then and there being or of the more part of them shall be thought conuenient And if the said person will not be reconciled and repent at the said quarter sessions then he shall be further committed to the said Gaole by the said Iustices there to remaine without baile or mainprise Rescuing the offendor or disturbing the arrest vntill he shall be reconciled and be penitent c. And if any person or persons of their owne authoritie willingly and vnlawfullie doe rescue any offendor so apprehended or will disturbe the said offendor to be apprehended then euery of the said Rescuers or disturbers shall suffer like imprisonment as is aforesaid and further shall pay for euery of his offences v. l. to the Quéene The punishment of the Town where the offendor dothe scape If any of the offendors aforesaid be not apprehended in time conuenient but doe escape then the said escape shall be lawfully presented before the Iustices of peace at the next quarter sessions c. and the Inhabitants of the parish where the said escape was suffred shall forfeite to the Quéene c. for euery such offence v. l. to be leuied and taken as other like amerciaments and fines be leuied vpon any village hundred or towne for the escape of any murderer or other felon for not making pursuit vpon huy and cry according to the Statute of Winchester and the statute of 3. Punishment by Ecclesiasticall laws H. 7. 1. This Act shall not extend to take away the authority and punishment of the Ecclesiasticall lawes standing in force for the punishment of any of the offences aforesaid But they shall be vsed in euerie thing as though this act had neuer ben made Whatsoeuer person offending in the premisses shal for any the offences afore recited receiue punishment of the Ordinary hauing Testimoniall thereof vnder the said Ordinaries seale shall not for the said offence eftsoones be conuicted before the Iustices Eté conuerso 27 To the intent vtterly to take away all quarreling brawling fraying and fighting openly in Churches and Churchyards by a statute made An. 5. 6. E. 6. it was ordained Sta. 5. 6. E. 6. 4 That if any person whatsoeuer doe by words only quarrell Chiding in a Church or Churchyard chide or brawle in any Church or Churchyard Then it shall be lawfull to the Ordinary of the place where the offence is done and proued by two lawfull witnesses to suspend him being a Layman ab ingressu Ecclesiae and being a clerke from the Ministration of his office so long as he thinketh méete Smiting in a Church or Churchyard according to the fault And if any person or persons shall smite or lay any violent hands vpon any other either in any Church or Churchyard then ipso facto euery person so offending shall be déemed excommunicat and be excluded from the fellowship and company of Christs congregation And if any person shall maliciously strike any person with any weapon in any Church or Churchyard Drawing or smiting with a weapon in a Church or shall draw any weapon in any Church or Churchyard to the intent to strike an other with the same weapon then euery person so offending and thereof being conuicted by verdict of xij men or by his owne confession or by two lawfull witnesses before the Iustices of assise Iustices of oyer and determiner or Iustices of peace in their sessions shall be adiudged by the same Iustices before whom such person shall be conuicted to haue one of his eares cut off And if the person or persons so offending haue none eares whereby they should receiue such punishment as is aforesaid Then he or they to be marked and burned in the chéeke with an hot yron hauing the letter F. whereby he or they may be knowne and taken for fray makers and fighters and besides that euery such person to be and stand ipso facto excommunicated as is aforesaid 28 As the law hath alwaies had a principall and most speciall regard that there should be no breach or disturbance of the peace to those persons places and tymes which be dedicated and deuoted to the seruice of God to the Ministration of his Sacraments and preaching of his worde So hath she a secondarie respect that the King the head of the Realme and chiefe fountaine of peace may haue tranquillitie and peace at the time and in the place where he doth rest and in person make his aboade whereupon by a Statute made Anno 33. H. 8. it was enacted Drawing of bloud within the Kings pallace That if any person shall maliciously strike any other person Stat. 33. H. 8. 12. whereby bloud shall be shed in any of the Kings houses or pallaces or in any other house where the Kings Maiestie his heires c. â—â—â—t be at that tyme abiding in his royall person viz. within any edifices courts places gardens orchards or houses within the Porters warde of any the houses aboue rehearsed or within any gardens priuy walkes orchards tilt-yards woodyards tennis playes cockfights bowling allies neare adioyning to any of the houses aforesaid and being part of the same or within 200. foote of the standard of any outward gate or gates of any of the said houses commonly vsed for passage from any of the houses c. and shall be thereof indicted arraigned and attainted according to the Statute in that case prouided he shall haue his right hand stricken off be imprisoned during his life and make fine to the King at his pleasure But this act nor the paines and forfaitures before rehearsed shall not extend to any Noble man or other person that shall strike his seruant within the said pallaces or houses or the limits of the same with his hand or fist or any small staffe or sticke for correction for any offence committed Nor to any of the Kings officers that in executing his office shall strike any person with his hand or fist or small staffe sticke or tipstaffe Nor to any other person that in doing seruice at any triumphe or any other time of seruice by the King or any of his Councell or other his head officers commaundement shall for the executing of his said seruice strike any person with his hand fist small staffe or sticke or any tipstaffe within the same pallace house c. although by reason of the same stroake or stroakes there happen to be any bloud shead of such person as shall be so striken except the person so stricken dye of the same stroake within one yeare next after Long time before the making of this statute King Alured ordeined a law
counterfeit money any such false and counterfeit coine of money being currant within this realme as is aforesaid knowing the same coine or mony to be false counterfeit to the intent to vtter or make paiment with the same within this realme or any the dominions of the same by marchandizing or otherwise then all euery such person or persons so offending as is aforesaid their counsellors procurers aiders and abettors in that behalfe shal be déemed and adiudged to be offendors in high Treason and shall suffer after lawfull conuiction or attainder thereof such paines of death losse and forf of lands goods and cattels as other offendors shall do in cases of high Treason And all euery person and persons By what euidence an offendor shal be indicted or attainted that shal be accused or impeached of any of the offences contained and prouided for in this stat or of any other offence or offences cōcerning the impairing coūterfeiting or forging of any coin currant within this realme shal and may be indicted conuicted or attainted by such like euidence in such manner and forme as hath béene vsed within this realme at any time before Anno 1. Ed. 6. Any Statute custome law c. notwithstanding 12 Because diuers false and euill disposed persons for wicked lucre gains sake did diminish impaire and falsifie the money and coynes currant within this Realme Clipping washing roūding or filing of money by clipping washing rounding and filing therof to the dishonor of the Quéene and losse of the subiects of this Realme for the remedy wherof by a stat made An. 5. El. it was enacted That clipping washing rounding St. 5. El. 11. or filing for wicked lucre or gaines sake of any the proper monies or coynes of this realme or the dominions therof or of the monies or coines of any other realme allowed and suffered to be currant within this realme or the dominions thereof at this present or that hereafter at any time shal be the lawful monies or coines of this realme or the dominions thereof or of any other realme and by proclamation allowed and suffered to bee currant here by the Qu. her heires or successors shal be taken and adiudged by vertue of this act to be treason and the offendors therein their counsellors consenters and aiders shal be taken déemed and adiudged as offendors in Treason and being thereof lawfully conuicted or attainted according to the due order of the law shall suffer death and lose forf all his and their goods and cattels and also shall lose and forf all his and their lands and tenements during his and their naturall life or liues onely To whom the forfeiture shall accrue And euery person which hath any lawfull grant to haue and enioy the forf of lands goods or cattels of offendors and men attainted of high treason within any Manor Lordship Towne Parish Hundred or other precinct within this realme of England or Wales shall may at all times hereafter haue like libertie to take seise enioy all such forf of lands tenements goods and cattels as shall come or grow within their liberties by force of the attainder of any person or persons for vpon any offence and offences made treason by this act as they or any of them should ought or might by vertue of any good and lawfull grant to them or any of them heretofore had or made Prouided alwayes No corruptiō of blood or forf of dower and be it enacted That this act nor any attainder or attainders of any person or persons for any offence or offences made treason by this act shall extend or be expounded to make any corruption of blood to any the heire or heirs of any such offendor or offendors or to make the wife of any such offendor to lose or forf her dower of or in any lands tenements or hereditaments or her title action or interest in the same Any thing in this act contained or attainder c. notwithstanding Tryall of a Peere If any of the Lords of the Parliament or Péere of the realme shal be indicted of any offence made treason by this act then they shall haue their triall by their Péeres as heretofore hath béene vsed in cases of High Treason By a stat made An. 3. H. 5. it was ordained That clipping St. 3. H. 5. 6 washing or filing of the money of the land shold be adiudged treason but that stat was repealed by the before rehearsed stat of An. 1. M. as is aforesaid 13 For that diuers euill disposed persons knowing that the said act of an 5. El. 11. being penall ought to be expounded strictly according to the words therof the like offences not by any equitie to receiue the like punishment did sithence the making of the said stat practise for gaines sake other vndue means to falsifie impaire diminish and lighten as wel the proper mony of this realm as also of other realms Diminishing scaling or lightning of money allowed to be currant within this realm and the dominions thereof by the Qu. proclamation to the great losse and deceit of the Q. and her subiects for the redresse whereof by a Statute made Anno 18. St. 18. El. 1. Eliz. it was established That if any person or persons shall for wicked lucre or gaines sake by any act waies or means whatsoeuer impaire diminish falsifie scale or lighten the proper monies or coynes of this Realme or any the Dominions thereof or the monies or coines of any other Realmes allowed and suffered to bée currant at the time of the offence committed within this Realme of England or any the Dominions of the same by the proclamation of the Qu. her heires or successors it shall be taken déemed and adiudged to be Treason and the offendors therein their counsellors consentors and aydors shall bee likewise déemed and adiudged as offendors in treason and being thereof lawfully conuict or attainted according to the due course of the laws of this realm shall suffer death lose and forf all their goods and cattels to the Quéene her heires and successors and shall lose and forfeit to the Quéene her heires and successors all their lands tenements and hereditaments during his or their naturall life or liues onely Prouided alwayes that this Act No corruptiō of blood nor forf of dower nor any attainder or attainders for any offence or offences made treason by this Act shall in any wise extend or be iudged or expounded to make any corruption of blood to any the heire or heires of such offendor or offendors or to make the wise of any such offendor to lose or forfeit the dower of or in any lands tenements or hereditaments or her title action or interest to the same Any thing in this Act contained or any attainder hereafter to be had c. notwithstanding If any Lord of the Parliament or Péere of this Realme Tryall of a Peere shal
Striking in Westminster Hall 27 And the same Law is Fitz. Cor. 280. M. 2. 3. P. M. Dy. 188. if one strike another in Westminster Hall during the time that the Kings Courts be sitting there and be indicted thereof this is misprision of Treason and an indignitie offered to the Magistrates and place of iustice Therefore in this case the offender shall haue iudgement to haue his right hand cut off to loose his lands and goods and to be perpetually imprisoned Reâ—scuing a prisoner arrested by a Iudge 28 If one of the Kings Iustices assigned M. 22. Ed. 3. 13. doe arrest any person which hath made a fray before him and a stranger will rescue the prisoner whereby he doth escape this is misprision of Treason and in this case as well the prisoner as he that made the rescous shall forfeit to the King his landes and goods and be imprisoned during their liues Because the attachment of such a Iustice is the Kings owne attachment in the construction of Lawe 29 Because striking in the Kings pallace or where he shall remaine in person is a kinde of disgrace offered vnto or contempt had of the maiestie of the king who is the head of the common wealth and the chiefe preseruer of peace therein and therefore it is to be accounted a great Misprision and worthy of seuere punishment wherefore for the preuention thereof Shedding of blood within the kings palace by a Statute made Anno 33. St. 33. H. 8. 12. H. 8. 12. it was established That if any person or persons shall malitiously strike any other person whereby blood shall be shedde in any of the Kings houses or Palaces or any other house wherein the king his heires or successors shall bee at that time abiding in his royall person viz. within any edifices courts places gardens orchards or houses within the Porters ward of any of the houses aboue rehearsed or within any Gardens priuie walkes orchards tilt-yards wood-yards tennice-plaies cocke-fights bowling alleyes néere adioyning to the said houses and béeing part of the same or within two hundred foot of the Standard of any outward gate or gates of any of the said houses commonly vsed for passage from any of the houses c. and shal be thereof indicted arraigned and attainted according to the forme of the said Statute he so offending shall haue his right hand cut off bee imprisoned during his life and make fine to the King at his pleasure But this Act and the paines and forfeitures before rehearsed shall not extend to any Noble man nor other person that shall strike his seruant within the said Palaces or Houses or the limits of the same with his hand or fist or any small staffe or sticke for correction for any offence committed Nor to any of the Kings officers that in execution of his office shall strike any person with his hand fist or small staffe sticke or tipstaffe Nor to any other person that in doing seruice at any triumph or any other time of seruice by the Kings or any of his Councel or other his head officers commandement shal for the execution of his said seruice strike any person with his hand fist smal staffe or stick or any tipstaffe within the same palace house c. although by reason of the same stroke or strokes there happen to bée any blood-shed of such person as shal be so stricken except the person so stricken die of the same stroke within one yeare next after And so it is to be noted by the foresaid Statute of 33. H. 8. and the foure cases next precedent that striking in the Kings Palace or House where himselfe doth make his abode is not so penall as striking or drawing a weapon to strike is where he is but represented by others in time and place of Iustice for the law doth inflict a more seuere punishment vpon him who striketh or draweth his weapon to strike in place time of execution of Iustice than it doth to him who offereth the like violence in the house and at the time where the kings owne person is remaining In which case the offendor receiueth no punishment at all for striking or drawing of his weapons to strike vnlesse blood be shed thereby Which lawes doe procéed of the great care and reuerend respect that is had of Iustice and of peace ensuing thereof 30 For as much as some doubts and questions were mooued that certaine kinds of Treasons Misprisions and concealements of Treasons committed out of this Realme could not by the common lawes of this Realme be enquired of heard and determined within this Realme of England for a plaine declaration whereof St. 35. H. 8. 2 26. H. 8. 13. 5. Ed. 6. 11. by a Statute made Anno 35. H. 8. it was enacted That all manner of offences béeing alreadie made or declared or hereafter to bee made or declared to be Treasons Misprisions of Treasons or concealements of Treasons and done perpetrated or committed by any person or persons out of this Realme of England shal be enquired of heard and determined before the Kings Iustices of his Bench for pleas to be holden before himselfe Trial of treasons committed out of the Realme by good and lawfull men of the same shire where the said Bench shall sit and bée kept or else before such Commissioners and in such shire of the Realme as shall be assigned by the Kings Commission and by good and lawfull men of the same Shire in like manner and forme to all intents as if such treasons c. had béene committed in the same shire where they shall be so inquired of heard and determined as is aforesaid And if any Péere of this Realme shall be indicted of any such Treasons c. then he shall haue his triall by his Péeres c. Which foresaid Statute of Anno 35. H. 8. remaineth in force notwithstanding the Statute of Anno 1. 2. P. M. 10. By which it is ordered h. 13. El. Dyer 298. That all Trials had awarded or made for any Treason shall bee had and vsed onely according to the course of the common lawes of this Realme and not otherwise Outlawrie of offendors in Treason beeing beyond Sea 31 By a branch of a Statute made Anno 26. H. 8. it was ordained That all Proces of Outlawrie to be made within this Realme against any offendors in Treason being resiant or inhabiting out of this Realme or beyond the Sea at the time of the Outlawrie pronounced shal be as good and effectuall in the law to all intents as if any such offendors had béene resiant within this Realme at the time of such Proces awarded Outlawrie pronounced And after by a Statute made Anno 5. E. 6. it was conditioned and prouided St. 5. E. 6. 11. That if the partie so outlawed shall within one yeare after the said Outlawrie pronounced or iudgement giuen thereupon yéeld himselfe to the chiefe Iustice
life time for murder of another person And if this man had béene outlawed or otherwise attainted of Felonie in his life time this lease should haue béene forfeited to the King and the wife should haue had no part thereof P. 16. E. 4. 7 P. 9. Eliz. Dyer 262. 45 If one which is felo de se hath a debt due to him vpon a contract No forfeiture of a debt vpon a simple contract and not by specialtie hée shall not forfeit the debt to the King amongst his other goods and chattels for that the sayd debtor shall bée rebutted of his law against the King Pl. Com. 260. 262. 46 If a villeine doe giue himselfe a deadly wound A villeine felo de se and then his Lord seiseth his goods and after the Lord of the same villeine doth seise his goods and then this villeine doth dye within a yeare and a day after the wound giuen and so becommeth felo de se and after the whole matter is found before the Coroner those goods of the villeines shal bée forfeit to the King and the King shall haue them out of the Lords possession for the forfeiture shall haue relation to the wound which the villeine gaue himselfe and that was before the Lords seisure of his goods For if a man doth giue himselfe a deadly wound and dyeth thereof within a yere and a day after all the goods cattels and debts which hee had at the time of the blow giuen or at any time after shall bée forfeited to the King and in his life time hee hath no authoritie to dispose of them after the wound was giuen 4. 5. P. M. Dy. 160 47 A man was bound with two Suerties One mortgaged his goods and then became felo de se for the payment of twentie pounds at two seuerall dayes and the principall debtor for the securitie of his Suerties by his Indenture did sell vnto his sayd two Suerties twentie oxen for twentie pounds with a Prouiso in the Indenture That if hée did discharge or saue them harmelesse of the sayd Obligation of twentie pounds that then the said sale of the twentie oxen should bée void And it was agréed betwéene them that the principall debtor should haue the occupation and vse of the said twentie oxen at the will of the said Suerties and to bée vsed as his owne And after one day of paiment due to the Obligée and no money payd by the seller or principall debtor and before the second paiment was due the seller killed himselfe and became felo de se hauing those twentie Oxen in his possession and the Suerties seised the beasts as their owne And notwithstanding the propertie was in them by the not performance of the condition yet it was adiudged that the Aulmoner should haue the beasts or the money which they were sold for and then hée should discharge the Suerties against the Creditor And so the Aulmoner was awarded to haue in these beasts the best estate of the seller and the same that the Debtor might haue had if hee had payed the debt at the due times which were agréed vpon Homicide by casualtie 48 Though Homicide is most vsually knowne and termed by the killing of one man or woman or more by another man or woman or more yet hominis cedium whereof the same word Homicide is deriued may bée done by some other casualtie though when a man is slayne by some other mischaunce than by the hand or meanes of another man as by the fall of a pit of earth or stone or a trée or killed by a Beare or Bull or such like it is not aptly nor vsually sayd that Homicide is committed but that such a man is slaine 49 When a man commeth to his death by the meanes of any thing that falleth vpon him or by the meanes of a hurt which himselfe receiueth in falling from some other thing without the procurement of another man that thing which is the cause of his death shall bée forfeited to the King taken for a Deodand A Deodand and distributed in almes And it is not materiall whether the thing that killed the man was moouing or not at that time when it killed him for though it were not moouing yet it shall bée taken and accounted as a Deodand as well as if it were moouing Fitz. Cor. 403. M. 6. E. 6. Dyer 77. because all things moouing with the thing which was the cause of the mans death shall bée forfeited in like sort as the principall thing according to the old rule Omnia quae mouent ad mortem sunt Deodanda And yet those goods which bée forfeited as Deodand bée not forfeited vntill the matter be found of Record Co. li. 5. 110 and therefore they cannot be claimed by prescription And the same Iurie which doth find the death of the man must also find and appraise the Deodand A trée and the bough of another tree do kil a man 50 If a man do fell a trée Fitz. Cor. 398. and that trée falleth vpon the bough of another trée which bough falleth vpon a man and killeth him in this case both the bough that killed the man and also the trée which did fall vpon that bough shal be Deodand for they both did moue vnto and were the cause of his death Falling off a cart or from a cart 51 If a man do ride in a cart and the same cart falleth vpon him Fitz. Cor. 388. and killeth him as well the same cart as the horses that drew the cart shall be Deodands And in like sort if a man bee in a cart and by the stirring of the horses which drew the cart or any of them he is cast out of the cart and dyeth thereof Fitz. Cor. 397. Pl. Com. 323. as well the horses which drew the cart as also the cart shall be Deodands for the horses and cart béeing fastened together bée all the cause of the mans death Falling from a cart laden 52 If a man fall from a cart laden with Corne Hay Wood Fitz. Cor. 326. c. and the wheele of the cart breaketh his necke backe or c. whereby hée dieth as wel the Corne Falling from cart that is in lading Hay Wood or c. as the cart shal be Deodands But if a man do fall from a cart as he is lading of Corne Hay Wood Fi. Cor. 326 c. by the stirring of the horses and thereby breaketh his necke backe or c. whereby he dyeth the cart and horses shal be Deodands but not the corne c. for that the corne c. were not the cause of his death If a man that doth driue a cart doe clime vpon one of the whéeles of the cart Fitz. Cor. 409. to gather apples plums or c. and doe fall from that whéele and breaketh his necke back or c. whereof he dieth if it be
againe at his deliuerance notwithstanding their iudgemeÌ„t before if so be that the iudgement be not entered And this is by the kings prerogatiue who is partie to the suit The differences betwéen Appeale and Indictment 37 And séeing I haue treated first of Appeales now of Indictments 22. As p. 94 it is to be considered what differences there be betwéene them In an Appeal of the death of a man the name of him which is dead must be contained or otherwise it is not good And therfore there lyeth no Appeale of the death of an infant in his mothers womb No name for that infant had neither name nor sirname and moreouer that maner of killing is no felony But if one be indicted of the death of a man vnknowne it is a good indictment M. 2. E. 3. 26 9. H. 6. 45. 1. Ass p. 7. for he that was slaine may be so mangled in the face by the murderer Killing of a maÌ„ vnknown or some other or by some other means that he cannot be knowne And though in that case no man can be of kin to him who is vtterly vnknowne by which meane no Appeale can be maintained by any yet séeing offences must not remaine vnpunished the offendor in this case shall be indicted and the enquest which shall passe vpon his arraignment 2. Ed. 3. 26. 11. Eliz. â—â— Dyer 285. shall deliuer to the court a name of him that was slain to the intent that if the party arraigned or any other shall vouch that record hee shall not depart from thence without acertaine name In an indictment of treason or felony the party indicted shall not plead misnaming Misnaming of his sirname but he must answer to the indictment 1. H. 5. 5. 11. H. 4. 40 11. H. 7. 5. Fi. Cor. 113 whether he haue one name or other And yet in an Appeale it is otherwise But in an Appeale also in an Indictment the prisoner may plead misnaming of his name of baptisme and it being proued the indictment shal be quashed In an indictment the partie indicted may become an approuer Approuer and so cannot an appellée in an appeale 22. Ed. 4. 19. In an appeale the defendant may haue his trial by battel Triall by battell if he wil but so he cannot haue which is indicted A felon may be indicted in the county where he did steal the goods or in any other county whither he carried them 4. H. 7. 5. And in like sort an appeale may be pursued against a felon in the county where he did first steal the goods or in any other county whither he carried them Fi. Cor. 232 41. Ass p. 9. Co. li. 4. 45. 38 It is a good plea in an appeale or indictment of felony to say Pleading another time acquit of the same felonie that he was at another time arraigned of the same felony before such Iust acquited and to vouch the record for he shal not be compelled to haue the record in hand because his plea is not dilatory but in bar and that plea shal be a good bar if it bée a lawfull acquitall for that by the common law a man shall not put his life in ieopardie of triall twice for one and the same felony sauing in certaine speciall cases But it ought to be of one offence or else his plea is to no purpose And therfore if two men be indicted of felony as principals Another offence and after by another indictment it is found that one of them committed the felony and the other did but feloniously receiue him after the felony committed vpon the first indictment they be both arraigned acquited and after hée which was indicted as accessorie 8. H. 5. 6. 27. Ass p. 10 Bro. Cor. 185. 2. E. 3. 26. Fitz. Cor. 424. is arraigned and pleadeth that he was at another time acquited of the same felony this plea wil not discharge him because it is not of one offence but of diuers for it was done at seueral times But if he had bin indicted as accessory before the offence committed this acquitall of him as principall would haue discharged him of his offence also for they be in maner one offence although they be done at seuerall dayes For when a felony is coÌ„mitted by force of commandement the commander in that case is party to the principal fact so is not the other which is accessory after the felony committed Bracton Bracton sayth that force and commandement be as the foundation of the principall fact and so annexed and conioyned vnto it that they cannot be seuered from it because a wound a déed and commandement do procure one onely fact and it may bée there should haue béen no wound except there had béen force neither wound nor force vnlesse commandement had gone before and bidden it to haue béene done But force and commandement which in the time of Bracton were but accidents to the fact and made the offendors therin but accessories be now the principal fact if the giuer of that commandement be present when the felony is done S. Appeales 94. 26. As p. 15 11. H. 4. 41. Fi. Cor. 336 39 If a man be indicted arraigned of the death of I. Stile Indictment of the death of a man knowne by two sirnames which I. Stile was also knowne by the name of I. Noke as well as by the name of I. Stile in this case the def may plead that he was at another time indicted acquited of the death of I. Noke auerre that the said I. Noke Iohn Stile were one person not diuers and demand iudgement if he shal be put to make answer to that indictment in which case notwithstanding this variance of names he shal be discharged because he was indicted and acquited of the death of the selfe same man of whose death he is now againe indicted and arraigned Indicted of the same mans death 40 If a man be killed two yeares past 3. Ass p. 15 22. Ass p. 55 Fi. Cor. 336 and one is indicted and arraigned of his death and acquited and after he that was acquited is againe of new indicted and arraigned of the same mans death supposing that he killed him this present yeare yet notwithstanding this variance the party indicted shal shew the truth of the case and plead his first acquitall for his discharge and bee discharged And the reason is because one man cannot bee twice killed for the Court in this case doth vse to charge the enquest with the time of the death of him who is supposed to be slaine and also whether there were any other which was killed as the last indictment doth suppose or not Indictment in two counties of one offence 41 If a man be indicted in one county of the death of another and thereupon arraigned after he is indicted in another county of the same parties death
be passed And if the same Felons Murderers and Accessories or any of them so arraigned be acquited or the principall of the sayd felonie or any of them be attainted the wife or next heire to him so slaine as case shall require may take their Appeale of the same death and murder within the yeare and day after the same felonie and murder done against the said person so arraigned and acquit and all other their accessories or against the accessories of the sayd principall or any of them so attainted or against the sayd principall so attainted if they be then liuing and the benefit of the Clergie thereof before not had And the appellant shall haue such aduantages as if the sayd acquitall and attainder had not béene the acquitall or attainder notwithstanding The wife or heire of the person so slaine or murdered as case shall require may commence their Appeale in proper person at any time within the yeare after the felonie done before the Sherif and Coroners of the Countie where the sayd felony and murder was done or before the King in his Bench or Iustices of gaole deliuerie And though that by force of the sayd statute of 3. H. 7. at another time acquited is no plea in an Appeale of death at this day Another time acquit no plea in Appeale but in Indictment yet in an indictment of death it is a good plea to plead that he was at another time acquited in an Appeale brought of the same parties death S. Appeales 93. 48 And so it appeareth that the before rehearsed enormities that were at the common law and some others touching the indicting and arraigning of murderers and manquellers be remedied by the foresaid statute of 3. H. 7. but in other Appeales the rules of the common law doe continue in force For if a man be indicted of robberie and hee that was robbed hath an Appeale depending of the same robberie No indictmēt of robbery vntil the Appeal be tryed against the partie indicted in which Appeale he hath procéeded so farre that the Iust may perceiue that it is of the same robbery they ought to surcease to try the Appellée vpon the indictment 31. H. 6. 11 vntill the plaintife hath made his declaration For in an Appeale by writ the robbery cannot be certainly known vntil he hath made his declaration though it be otherwise in an Appeale commenced by bill 49 Though at another time conuicted or attainted of the same felony Another time conuict of the same felonie was and is a good plea for him that is the second time or more often indicted and arraigned againe vpon the same felony yet by the common law if one had béen indicted and arraigned of felonie and deliuered to the Ordinarie as a Clerke conuict and before he had made his purgation of the same felony he had broken the Ordinaries prison and escaped he might haue bin another time arraigned vpon the same indictment And it was no plea for him to plead Fitz. Cor. 232. that hee was another time conuict of the same felony and deliuered to the Ordinarie or that he was a Clerke and could not answer without his Ordinarie because hée remained vnpurged of the felonie and did loose the benefit of his Clergie by the breaking of prison And yet at that time if hee had not broken the Ordinaries prison but departed by his licence then at another time conuict shold haue bin a good plea for him vpon his second arraignmēt But now sithence by the stat of an 18. El. St. 18. El. 6. euery person which shal be admitted to haue the benefit of his clergie shal not therupō be deliuered to the Ordinarie as hath bin accustomed but after such clergie allowed and burning in the hand shal forthwith be enlarged and deliuered out of prison by the Iust before whō such clergy shal be granted Therefore at this day if one bee conuicted of felonie and hath the benefit of his Clergie Co. li. 4. 40. 45. and is burned in the hand if after in any case he shall be indicted and arraigned of the same felonie it shal be a good plea for him to plead that hée was another time conuict of the same felonie because the life of a man shall not be twice put in ieopardie for one offence yea though he shall breake the prison and depart from thence within that time after his conuiction which the Iustices shall thinke conuenient to detaine him in prison for his further correction for now he is not in prison for felonie but for correction 50 It is a good plea for him that is arraigned of felonie to plead that he is attainted of felonie Another time attainted of felonie and to demand iudgement if during this attainder he shal be put to answer to that felony whereof he is attainted or to any other felonie for if he should be put to answer no more could be recouered of him than is recouered 28. E. 3. 90 neither can he forf more than he hath forfeited hauing forfeited life lands goods and all that he hath and therefore it should bee to no purpose to trouble him any more But it is otherwise where it is to any end or purpose to put him to answer and plead againe to a new indictment as in some speciall cases it may be done As a man attainted of felony hath also committed treason at the time of the felonie committed in this case he shal answer to the treason for the K. aduantage 1. H. 6. 5. notwithstanding his attainder of felony before because if he be attainted of treason the king shall haue the escheat of his lands of whomsoeuer they be holden but if the treason were committed after the felony or at the least after the attainder of felony then it were otherwise for then the title which was vested in the chiefe Lord of whom his lands were holden 4. E. 4. 11. cannot be deuested by a matter accrued ex post facto And also where diuers men haue seuerall Appeals of robbery against one man though he be attainted at the suit of one of them yet to the intent that euerie of them may recouer his goods which were robbed and taken from him vpon his fresh suit hée shal be againe arraigned at euery of their suits And it is no plea for him in this case to plead that he was another time attainted of felony 51 In all cases where the defendant would discharge himselfe by pleading that he was attainted of another felony thē this whereof he is now arraigned The K. pard◠obiected against another time attainted it may be replied for the party or the king that after the same attainder the K. did pardon him that felony whereof he saith he was attainted and his attainder thereof 6. H. 4. 6. whereby he was restored to the law and so he ought to answer to all other felonies notwithstanding they were committed before this
27. H. 8. 19. 32. H. 8. 3. 32. H. 8. 12. And by that means abiuration at the common law is restored to his former course I will therefore write so much of abiuration and abiured persons as is warranted by the common lawes of this Realme onely and not by any Statute sauing by the statute of Articuli cleri made an̄ 9. Ed. 2. 10. which is rather a confirmation or exposition of the common law than a new law and except so much as is contained or mentioned in the statute of 35. Eliz. 1. 2. or in any other law made sithence that time which I doe rather set downe that the Reader may knowe what the law hath beene or is then how it is vsed and put in practise 4 Abiuration doth not lie for him which offendeth in high treason No abiuration for high treason because the Coroner cannot attaint him vpon his confession thereof for that he is not his Iudge of that offence neither can he be Iudge as Coroner though hée haue a commission from the King to doe it And if the offendor béeing in a Church would of purpose confesse a felonie to the intent to escape Treason yet if the Coroner be informed that hee is charged with treason hée ought not to suffer him to abiure and that for the Kings aduantage for it is better for the King to attaint him of Treason than of felonie in respect of the Escheat which in case of Treason doth wholly belong to the King of whomsoeuer the offendors lands be holden And the same law is in petit Treason for the Coroner ought not to record his abiuration thereof No abiuratiō for petit treason any more than hee may doe of high Treason Neither the Coroner ought to let him passe by abiuration of another felonie if he be informed that the offendor hath committed petit treason and that for the grieuousnesse of the offence though the king shall receiue no more benefit in petit treason than in felonie And the statutes which were made in the time of k. H. 8. St. 21. H. 8. 2 22. H. 8. 14. 27 H. 8. 19 32. H. 8. 12 touching abiuration be a speciall argument and proofe thereof which doe onely make mention of abiuration for murder and felonie but not for petit treason Fi. Cor. 420 9. Ed. 4. 28 5 If a man doe robbe a Church and flie to another Church for the said offence and there would abiure No abiuratiō for the robber of a Church he shall not be receiued thereunto but shall violently be pulled forth of the Church and thrust into prison Quia frustra legis auxilium inuocat qui in lege delinquit Fit cor 313 9. E. 4. 28. 6 If a man that is attainted of felonie and in carrying to the gallowes to be put to death doe escape from the Sherife and flie to a Church No abiuratiō for a man attainted he cannot abiure and though the Coroner would take his abiuration and let him goe at libertie the Sherife may take him againe and put him to execution notwithstanding the said abiuration for it is void and the Coroner in that case shal be grieuously amerced for this escape and so shall the towne where he was let at libertie and the reason is for that a man cannot haue two Iudgements for one offence Fi. Cor. 335 And so it is and for the same reason if a man that is attainted of felonie and is carried to the gallowes and hanged breaketh the halter falleth downe and then riseth vp and doth flie to a Church he cannot abiure but must be taken againe by the sherife hanged vntil he be dead according to his iudgement No abiuratiō for a man before abiured 7 If a man doe abiure the Realme before a Coroner for felonie 9. Ed. 4. 28 8. H. 4. 3. Fi. Cor. 410 and after doth returne into the Realme without the Kings pardon and then flie to a Church and would abiure againe he shall not be allowed so to do but shall be taken forth by violence and put to execution for that he was before attainted of felonie vpon his owne confession and had his iudgement of abiuration and cannot be twice attainted or haue two iudgements Where an offendor may by violence bee drawne out of a Church 8 If a man doe flie to a Church claiming the priuiledge therof for the safeguard of his life in some cases he may be drawne forth of the same by violence as if he come into the Church to claime the benefit thereof for an vnlawfull cause at the beginning viz. for treason robbing of a Church beeing formerly abiured or such like in those cases he may be drawne forth of the Church by violence by the people of the same towne and in like sort 3. H. 7. 12. Bro Cor. 180. if he doe flie to a Church and saith he doth take it for the safeguard of his life and will not declare that he hath committed felonie and that therefore he claimeth the priuiledge of the Church in that case the officers of the towne may by strength take him out of the Church But if he doe say that he doth take the Church for felonie that is sufficient without declaring what felonie or the manner thereof for he is not bound to shewe that but to the Coroner before whom hee doth make his abiuration The offendors confessiō before the Coroner and then he must confesse and shew the yeare day and place where and when the felonie was committed for that iudgement is to be giuen vpon his confession which must be grounded vpon certaintie Tarrying in a Church aboue the time appointed 9 If an offendors being in a Church were once lawfull although he tarrie there aboue the time which the law hath appointed him yet hee ought not for that cause be drawne out of the Church by violence Fi. Cor. 313 but meat and drinke shall be withholden from him and euery person shall be forbidden to succour him and he that doth relieue him shal be punished at the Kings suit which punishment some doe affirme shal be for a lay man death Britton Bracton and for a Clerke banishment for he that taketh a Church for felonie ought not to tarrie there aboue one night if a Coroner will come vnto him and be ready to take his abiuration otherwise he may tarrie there fourtie daies The manner of abiuration 10 The manner of abiuration is that he who taketh a Church ought to declare that he doth take it for felonie which he hath committed and when the Coroner commeth he must confesse before him the felonie certainely viz. the yeare day and place where and when hee committed the felonie and pray to abiure the Realme and to haue the tuition of the Church vntill he can prouide for his iourney and this confession must be taken by the Coroner himselfe and not by his deputie And then he
Appellée be within the lists ready to atchieue the combate That none but the two combaters shall be so hardie to stirre or make any noyse whatsoeuer he shall sée or heare whereby the battell may be disturbed And whosoeuer shall doe any thing contrarie to the said Proclamation Britton shall bée imprisoned a yeare and a day And they shall fight with weapons of small length béeing bare headed and hauing their hands and féet bare with two staues of one length horned at both endes And either of thē shall haue a Scutchian foure cornerd without any yron for that one shall not hurt the other with the yron Bracton de coron c. 21. And if the appellée can defend himselfe vntill Starres may be séene in the firmament then he shal goe quit from the appellant And also when the appellant and the appellée be in the field ready to ioyne battell or in the Battell it is a sufficient vanquishment if the appellant will confesse his appeale to be false 21. H. 6. 34. Fi. Cor. 98 for by this acknowledgement he shal be adiudged to be ouercome in the field and barred of his appeale for euer And on the other side if the appellée doe confesse himselfe in the field to be vanquished Bracton de coron c. 21. he shal be presently hanged As in an appeale the defendant pleaded not guiltie and made his choyce to trie it by Battel and as they were in the combate the appellant cast the appellée to the ground did grieuously beat him 19. H. 6. 35. and the Iustices sent for the appellée and when he was brought vnto them they demanded of him if he would any more of the battell or not who answered that he would not and said further that by the oath which hée had taken hée was not guiltie of the felonie whereof he was appealed to whom the Iustices said That if he would any more of the battell he should be laid in the same sort that he was when they sent for him but he answered that he would no more of the battell and therefore hée was presently hanged The reason why the def may be tried by battel in appeale 3 The reason why in an appeale the Defendant shall bée admitted to trie his cause by Battell is for that no euident or probable matter doth appeare against him to prooue him guiltie of the felonie whereof hée is appealed but onely the bare accusation of the Appellant which is no witnesse of credit in his owne cause And therefore séeing the appellant doth demaund iudgement of death against the Appellée by an appeale and hath no other probable euidence to attaint him but his owne accusation it is more reason that the appellant shall aduenture his life with the appellée for the triall thereof if the defendant doe require it than to put the triall thereof vpon the countrey which for default of euidence may be ignorant of the truth thereof and so giue a false verdit and by that meanes to leaue it to God to whom the truth of all things be knowne to giue the verdit in this cause by attributing the victorie or vanquishment to which partie it shall please him Counter-pleas to the battel 4 If the appellant haue any vehement presumption or sufficient testimony to prooue that his appeale is true it will bée a good counter-plea and sufficiently serue him to put the appellée from his triall by Battell As if the Defendant were indited of this Felonie before the appeale commenced 22. E. 4. 19. 20. E. 4. 6 14. E. 4. 7. 4. Ass p. 1 Bracton de coron̄ c. 18. Britton or was taken with the manoure or was taken with a bloodie knife or other weapon ouer the bodie of him that was slaine or néere vnto him whereby there was vehement suspition that he killed him or that the defendant did lie alone in the house with him that was killed or that he and others did lie in the house with him that was slaine and receiued no blowes or wounds in his defence or that he made no Huy and Crie after the théeues or murderers to apprehend them or that he will not confesse which of those that were in the house with him did kill the man that was slaine or committed the felonie that was done or that he receiued the man that was slaine into his house which was séene to goe in aliue and after was found dead there and no meane prooued how he came by his death Taken with the manoure 5 If the Defendant be taken with the manoure as in an appeale of death with a bloodie knife or other weapon he shal be barred from waging of battel And so it shall be if he be taken with the manoure in an appeale of Robberie 7. H. 4. 44 Fit cor 230 4. Ed. 3. 9 which manoure the plaintife must bring into the Court at the time when the Appellée doth offer to ioyne in battell or otherwise he must plead that the Appellée was taken with the manoure which manoure hee would haue brought into the Court but that he was not able to bring it or else hee may say that the manoure is in the possession of another and pray the Court to write for it To which manoure when it commeth into the Court the defendant shall haue no trauerse or other exception if the thing brought into the Court for the manoure doe not varie from those goods or things which be contained in the Appeale 22. Ed. 4. 19 And in appeale of robberie if the Appellée be apprehended vpon fresh suit by Huy and Crie and some of the money robbed be taken in his custodie this is a sufficient taking with the manoure to put him from waging of Battell Fi. Cor. 375 though the money cannot be knowne from other money And the reasons why in an appeale of robberie the defendant being taken with the manoure shall not wage battell against the appellant be for that by the Appeale the plaintife doth endeauour to attaint the Appellée of felonie and also to haue his goods againe And it may be that if it should be tried by Battell the Appellée might vanquish the Appellant in combate though the appellee be guiltie of the felonie and by that meanes also retaine his goods stollen without cause Taken with the manoure And the manoure was accounted so pregnant an euidence in former ages that the Iustices would as readily arraigne a prisoner vpon the manoure taken in his possession as vpon an indictment 6 It is also a good counter-plea to the battell for the Appellant to say Breaking of prison that the defendant when he was taken or arrested for that felonie whereof the appeale is sued Fi. Cor. 251 281 1. As p. 6. and therefore imprisoned did breake the prison and escaped or did what he could to escape for it is a very great presumption against him that he is guiltie of the felonie whereof he is
and then be cut downe aliue and his intrals and priuie members be cut from his bodie and be burned in his sight and his head to be cut off and his body to bée diuided into foure parts 6. El. Dyer 230. and then to be disposed at the Kings pleasure Sauing that the iudgement of a man which is attainted for clipping the Kings money contrarie to the Statute of an̄ 25. Ed. 3. 2. shal be onely that he shalbée drawne and hanged though it was high treason by the common law so is expounded confirmed by that Statute But if any man shal be attainted of treson for cōmitting any of the offences made high treason by either of the Stat. of an̄ 1. M. 6. 1. 2. P. M. 11. 5. El. 11. 18. El. 1. 5. El. 1. 13. El. 2. 23 El. 1. 27. El. 2. 3. Iac. 4. he shal be adiudged a traitour S. Treasons and shall haue iudgement and suffer as in cases of high treason viz. he shal be drawne hanged and quartered as is before mentioned And though there be no mention made thereof in the iudgement yet he that is attainted of treason or felonie by verdict confession outlawrie or abiuration shall also forfeit his lands and goods his wife shall loose her dower and his blood shal be corrupted sauing in certaine cases 3 The iudgement of a woman which shal be attainred of high Treason or petite treason The iudgement of a woman traitour is 1. R. 3. 4 That she shall be ledde backe againe to the place from whence shée came and from thence be drawne vpon a hurdle to the place of execution and there be burned to death 8. El. Dy. 254. But if one man doe murder an other and the wife of him that was murdered be accessorie to her husbandes death the murderer and the wife both shall be hanged and she shall not be burned because she was but accessory 4 The iudgement of a man attainted of petit treason Iudgement of a man in petit treason is That hée shall be ledde backe againe to the place from whence hee came and from thence drawne vpon an hurdle to the place of execution and there to be hanged by the necke vntill he be dead Iudgement in felonie 5 The iudgement of a man attainted of murder burglarie robberie or other felonie is That he shall be ledde backe againe to the place from whence he came and from thence carried to the place of execution and there be hanged by the necke vntill he be dead And the like iudgement is giuen against a woman being attainted of anie of the same offences 6 The iudgement in misprision Misprision of treason is That the offendor shall forfeit to the King his goodes and his lands during his life and shall be perpetually imprisoned during his life Attainder of treason by the common lawe 7 In the foresaide iudgement giuen in high treason by the order of the common Lawe there can be no errour assigned St. 33. H. 8. 20. but it is as strong as if it had béene doone by Act of Parliament For the Statute made Anno 33. H. 8. hath ordained That if any person or persons shall be attainted of high treason by the course of the common Lawes or Statutes of this Realme that in euery such case such attainder by the common Lawe shall be of as good strength value force and effect as if it had beene done by authoritie of Parliament Iudgement of pennance 8 The iudgement of him who being indited of felonie will stand mute of malice or not answer directly or will refuse lawfull triall P. 4. E. 4. 11. being called Pennaunce or paine for t dure is That the prisoner shall be sent to the place from whence he came c. S. Standing mute c. 9. Iudgements in felony by Iustices of Nisi prius 9 As touching those who shall giue iudgement against the offendors aforesaide it is ordained by the Statute of Anno 14. H. 6. St. 14. H. 6. 1 That the Iustices before whome Inquisitions Enquests and Iuries shall be taken by the Kings Writte called Nisi prius according to the forme of the Statute thereof made haue power of all the cases of felonie and of treason to giue their iudgements as well where a man is acquitte of felonie or of treason as where he is thereof attainted at the day and place where the saide Inquisitions Enquests and Iuries shall be taken and then from thenceforth to awarde Execution to be made by force of the saide Iudgements 10 Because it oft times falleth out that an offendor is found guiltie of treason or felonie before some Iustices of Gaole Deliuerie for the which Iudgement of death should or might ensue and yet that person is reposed to prison without iudgement at that time giuen against him and then before the next Gaole deliuerie the same Iustices of Gaole deliuerie doe die or be remooued and others be assigned Iustices of Gaole deliuerie in their places by the Kings Commission which as many did conceiue it could not giue iudgement of that prisoner so repried by the former Iustices by warrant of the foresaide Statute of 14. H. 6. 1. or for some other cause For the remedy whereof by a Statute made Anno 1. Edw. 6. St. 1. E. 6. 7. it is enacted Iudgement by new Iustices That in all Cases where any person shall be found guiltie of any Treason Murder Manslaughter Rape or other felonie whatsoeuer for the which iudgement of death should or may ensue and shall be repried to prison without iudgement at that time giuen against him Those persons that at any time shall by the Kings Letters patents be assigned Iustices to deliuer the Gaole where anie such person found guiltie shall remaine shall haue full power to giue Iudgement of death against such person so found guiltie and repried as the same Iustices before whome such person was found guiltie might haue done if their Commission of Gaole Deliuerie had remained in full force 11 The Iudgement in petit Larceny Iudgement in petit larcenie is that the offendor shall be ledde backe againe to the Gaole Stockes or place from whence hee came and there to remaine a wéeke a moneth or c. and then in such a Citie Borough Market towne Village where the fact was done or other place assigned by the Iustices to be tied to a carte stripped from the girdle vpward and whipped vntill his bodie doe bléede once twice or thrice c. according to the Iustices discretion 12 If a woman be indicted and arraigned of felonie Stay of a womans execution being with childe it is no plea for her to say that shée is with childe but she must pleade to the felonie Not guiltie and if she be found guiltie then shee may alleadge that shée is with childe and then the Marshall or Sherife shall be commanded to returne an
leases for the terme of his owne or another persons life of lands T. for life And because tenant in taile is in diuers respects but tenant for the terme of his owne life T. in tayle of his lands intailed therefore if he commit Petit Treason or Felonie he shall forfeit his said intailed lands but for terme of his owne life And he that hath land in another right shal forfeit for high Treason petit Treason Murder or other felony no longer or greater estate than he hath in the same lands as a man seised in the right of his wife of laÌ„ds T. in the right of his wife or church or in the right of his church Fitz. Forf 13. shal forfeit no further estate in the same lands but during his owne estate therein as it doth appeare not onely by the rules of the common lawes but the same is also confirmed by the Statute of 5. Ed. 6. 11. hereafter rehearsed The forf of lands in tayle 26 By the common law Tenant in tayle beeing attainted of high Treason should haue forfeited the lands whereof hée was so seised of an estate in tayle but onely for the terme of his owne life and the same after his death should haue discended to his heire But now by the Statute made Anno 26. H. 8. and Anno 5. Ed. 6. St. 26. H. 8. 16. St. 5. E. 6. 11 it is ordained That euerie offendor and offendors being hereafter lawfully conuict of any manner of high Treason by presentment confession verdict or Proces of Outlawrie according to the due course and custome of the lawes of this Realme shall loose and forfeit to the King his heires and successors all such lands tenements and hereditaments which any such offendor or offendors shal haue of any estate of inheritance in his own right in vse or possession by any right title or meanes within this realme of England or elsewhere within any the Kings dominions at the time of any such Treasons committed or at any time after 16. El. Dyer 332. As if the King giue land to the husband and wife and the heires males of their two bodies lawfully begotten the remainder thereof to the heires males of the body of the husband lawfully begotten reseruing the reuersion to himselfe and the husband and wife haue issue a sonne and the husband committeth high Treason is attainted thereof and executed and this attainder is confirmed by Act of Parliament and all the offendors lands bée giuen to the King Sauing to all Straungers their right other than to the Donor in Tayle and his heirs In this case after the death of the wife the King shall haue the land for that by reason of the fathers attainder of Treason the estate Taile was forfeyted and extinguished by force of the sayd Statutes of Anno 26. H. 8. and Anno 5. Edw. 6. and the bloud corrupt An estate taile forfeited and extinguished and the heirs disabled for that in his lineall conueyance of his discent to the land hée must deriue himselfe heire as well to his father as to his mother Br. Done 61 Co. li. 1. 103 And in like sort if a man seised of lands in fée simple maketh a feoffement thereof to certaine persons to the vse of his wife for the terme of her life the remainder thereof to the vse of the heires of his owne bodie lawfully begotten after the feoffor hath issue a sonne and is attainted of high Treason and executed In this case his sonne shall not inherit this land as heire to his father whose bloud was corrupt by his attainder but the land shall be forfeited to the King by the foresayd Statute of 26. H. 8. And as tenant in taile by committing of high Treason shall by force of the foresayd Statutes of 26. H. 8. 5. Ed. 6. forfeit those lands wherof he hath the possession reuersion or remainder in tayle so shall hée likewise forfeit to the King by committing of high Treason those lands whereunto hée hath but a right in taile Pl. Com. 547. As if the King giue lands to a man Forf of a right in tayle and to the heires males of his bodie lawfully begotten reseruing the reuersion to himselfe and the tenant in tayle hath issue a sonne and dyeth and the sonne doth enter and make a feoffement in fée to a stranger of the same land and then hath issue a sonne and committeth high Treason and is attainted thereof this land shall bée forfeited to the King for by this feoffement made by tenant in tayle to a straunger there passed none other estate from the same tenant in tayle but only an estate for the terme of his owne life and so the tayle and the right of the tayle remained in the tenant in tayle and by his attainder the estate in tayle is extinguished in the Kings reuersion in fée simple And the King shall bee sayd rather to haue this land reuerted vnto him as if all the issue of tenant in tayle were dead than by forfeiture for the words of the Statute of 26. H. 8. be All persons attainted of Treason shall loose and forfeit to the King his heires and successors all lands and tenements which such offendor shall haue of any estate of inheritance at the time of the Treason committed or at any time after Sauing to all others and their heires other than the offendors in Treason their heires and successors all their rights and possessions c. which they had at the day of the Treason committed or after And by these generall words That they shall loose and forfeit all lands and tenements which they haue of any estate of inheritance and by excluding the heire in the Sauing lands tayled shall bée forfeited and the lands in this case cannot be aptly termed to be forfeited to the King and his heires where hée had the fée simple before but are rather to be sayd reuerted to the King the tenant in tayle dying without any issue which by his attainder of Treason and the corruption of his blood Co. li. 7. 33. could inherit this land And if the King by his letters Patents vnder the great Seale doe create an Earle Forf of name or title of dignitie intailed and giue him the title and honour of an Earledome to him and the heires males of his body begotten and the grantée hath issue two sonnes by seuerall women and then dyeth and his eldest sonne doth enioy the same Earledome and after committeth Treason by leuying of warre in the Realme against the King and is attainted thereof and then dyeth without issue of his bodie begotten by this attainder the same shal be forf to the K. and not discend to the brother of the half blood nor to his heirs for this Earldom and name of dignity may be intailed according to the stat of W. 2. St. 13. E. 1. 1 De donis conditionalibê° for that it concerneth land must
be supported and maintained with land to vphold the countenāce charge of the owner thereof And therfore this Earldome being by the K. giuen to the Earle the heires males of his body begotten is an inheritance which may discend from one heire male to an other and then by the speciall words of the before rehearsed Statute of 26. H. 8. and 5. Ed. 6. it shall be forfeited to the King by the said heires attainder of high treason for it was in the same heire an hereditament and whereof he had an estate of inheritance And moreouer when the King at the first did giue to this Earle and the heires males of his body begotten the foresaide great title of honour though there was no condition expressed in the same grant yet there was a secret condition implied therein viz. that the said grauntée and the heires males of his body should be assistant and seruiceable to the King his heires and successors by his Councell in the time of peace and by his force and prowesse in the time of warre Therefore when the heire male of this Earle the first grauntée did take Councell to breake the peace of the King and leuied warres and imployed his force and power against him he first brake the same secret condition which was annexed to his ancestors graunt of the Earledome And so there is reason and cause whie his said title of honour depending vpon the same condition should therewith cease and determine and that the same should returne againe to the Crowne from whence it was deriued The forfeture of lands in fée simple 27 Besides the forfeitures aforesaide 30. H. 6. 5. euery person that is attainted of high treason petit treason or felonie shall also forfeit his lands in fée simple which he hath in his owne right in vse or possession sauing that the attainder of treason by force of the Statute of Anno 5. El. 1. St. 5. El. 1. ordained against the maintaining of the authoritie of the Bishops and Sea of Rome shall not extend to make any corruption of bloud the disheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other than the offendor or offendors during his or their naturall liues onely And sauing that the attainder of treason by force of the Statute of Anno 5. Eliz. 11. St. 5. El. 11 prouided against the clipping washing filing or rounding of money maketh no corruption of bloud in the heire or forfeiture of dower in the wife And sauing that the attainder of treason by force of the Statute established Anno 18. El. 1. against impairing diminishing falsifying skaling St. 18. El. 1 or lightning of money maketh no corruption of bloud nor the wife to loose her dower for he that is attainted of that treason shall suffer death and forfeit all his goods and chattels to the King and all his lands during his life onely And likewise sauing that the attainder of felonie by force of the Statute made Anno 1. Iac. 12. against coniuration witchcraft enchantment St. 1. Iac. 12 charme and sorcerie maketh no corruption of bloud nor the forfeiture of the heires or successors inheritance of any land nor of the wiues title of dower And further sauing that the attainder of felonie by force of the Statute prouided Anno 1. M. 12. against vnlawfull assemblies St. 1. M. 12 maketh no corruption of bloud And moreouer sauing that the attainder of felonie by force of the Statute ordained Anno 5. El. 14. against the forging of Euidences St. 5. El. 14. and writings maketh no corruption of bloud nor forfeiture of land or dower And furthermore sauing that the attainder of felonie by force of the Statute of Anno 31. Eliz. 4. St. 31. El. 4 prouided against the imbeseling of the Quéenes ordnance armour or artillery maketh the offendor to forfeit no lands tenements or hereditaments any longer than during his life St. 4. Iac. 1. S. Triall by the country 10. Co. li. 7. 34 S. Br. 56. no corruption of bloud nor the wife to forfeit her dower And the same lawe is if an Englishman doe commit any felonie in Scotland And if a man haue an annuitie to him and his heires The forfeture of an annuity and he doe commit high treason and is attainted thereof he shall forfeit to the King the same annuitie by force of the before recited Statute of Anno 26. H. 8. 13. for that the same annuitie is an inheritance 28 He that is attainted of high treason petit treason or felonie Forfeiting of a title to land shall also forfeit such lands whereof he hath neither possession reuersion or remainder but onely a title or right or cause of action As if a man be disseised of lands and then the disseisée committeth high treason Co. l. 3. 10 after an office found thereof the king may seise those lands as forfeited and escheated vnto him in respect of the same persons attainder of treason And if the disseisée be attainted of petit treason or felonie the Lord of the Fée of whom the same lands be holden may enter into the same lands as escheated vnto him in respect o◠the attainder of his lawfull tenant But the Lord cannot haue a writ or escheat or other action to recouer the same land because his tenant died not or was not seized thereof but his onely remedie is to enter 6. H. 7. 9 And if a man make a lease for the terme of life of his land and after committeth felony and then the tenant for the terme of life dieth the Lord may enter but cannot haue a writ of escheat 29 As he that is attainted of treason or felony shal forfeit his lands Forfeiting of euidence so shal the Lord to whom those lands be forfeited 49. H. 6. 14 haue the euidēce of the same lands as escheated or forfeited vnto him to maintaine his title in the same lands escheated and to prooue how his late tenant came by and held the same lands St. 9. H. 3. 29 30 Though it is ordained by the statute of Magna Charta That iustice shall not be sold deferred or denied to no man neither shall any man be condemned but by lawfull triall and that it be further established by the statute of Anno 5. Edw. 3. St. 5. E. 3. 9 That no man shal be attached nor foreiudged of life lands or goods against the forme of the great Charter and the Law of the Realme So that the Law of the Realme doth allow to euery man that is an offendor his answere and lawfull triall be his crime supposed to be neuer so great and the proofe thereof neuer so manifest But if a man that is arrested of Treason or Felony or being vehemently suspected to haue committed Treason or Felony is attempted to be arrested be so wilfull stubborne or rebellious Forfeiture without at-attainder that he will
condemned and which be fugitiue wheresoeuer they bée found And if they haue any freehold it shall bée forthwith seised into the Kings hands and the King shall haue the profits thereof by the space of a yeare and a day and the land shall bée wasted and destroyed in the houses woods and gardens and in all things belonging to the same except men of certaine places priuiledged And after the King hath had the yeare day and wast the land shall bée restored to the chiefe Lord of the same fee vnlesse that before he redéeme the same yeare day and wast of the King by the paiment of a fine But there is a custome in the Countie of Glocester that after a yeare and a day the lands and tenements of Felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue discended if the felonie had not béene committed And in Kent in Gauelkind the father to the bough the sonne to the plough there all the heires males shall diuide their inheritance and likewise women but women shall not make partition with men 33 By force of which stat of Praerogatiua Regis The yere day and wast of lands of what title shal be forfeited euer sithence that time the King hath had all the thrée things aforesaid viz. the yeare the day and the wast of the lands of him which was attainted of felonie as one of the prerogatiues annexed to the Crowne in all cases where the felon had such an estate in his land Bracton de Corona cap. 13. that he might forfeit the same after his death and that hee himselfe might lawfully haue made wast in the same without being impeached therefore And therefore if the felon be but tenant for the terme of life or for the terme of yeares of lands the king shall not haue the yeare day and wast of them after the felons death for then he might wast another mans inheritance But if a man that is seised of lands in the right of his wife do commit felonie and is attainted thereof the king shall haue the profits of the land during the husbands life if the wife doe liue so long Fitz. Cor. 327. And some doe affirme that the king shall haue the yeare day and wast of the said wiues lands after the felons death because the felon during his life might haue committed wast therein and for that the felon had such an estate in his wiues lands that by the common law he might in his life haue made alienation of them and driuen his wife to her Cuiin vita to haue recouered them But that séemeth to be helped if any such law were before by the Statute of Anno 32. H. 8. where it is ordained That no fine feoffement or other act made suffered St. 32. H. 8. 28 or done by the husband onely of any lands tenements or other hereditaments being the inheritance or fréehold of his wife during the couerture betwéene them shall in any wise be or make any discontinuance thereof or be preiudiciall or hurtfull to the said wife or her heires or to such as shall haue title interest or right to the same by the death of such wife But the same wife or her heires and such other to whom such right shall appertaine after her decease shall and may then lawfully enter into such lands c. according to their rights and titles therein notwithstanding such fine feoffement or other act fines leuied by the husband and wife whereunto the said wife is partie and priuie only except By which Statute the wife after the death of her husband may enter into her owne land notwithstanding any attainder forfeiture or other act done by her husband No yere day and wast of lands holden by ioynt purchase 34 A man seised of land in fée simple holden of a common person did infeoffe thereof the husband and wife and their heires the husband committed felonie and was attainted thereof the King seised the land into his hands for his yere day and wast and after the Kings said terme expired 4. E. 3. 47. the Lord of the fée of whom the same land was holden did sue in the Chauncerie to haue the same land restored to him to whom by warrant the Escheator did deliuer the same lend vpon whose possession the wife of the felon attainted did enter and the said Lord of the fée reentred vpon her whereupon the sayd woman brought an Assise against the sayd Lord and recouered the land Because the fée simple of the same land being in the wife by reason of the ioynt purchase with her husband the K. ought not to haue had the yeare and day after the felons death nor the Lord of the fée the land after by Escheat 35 If tenant in tayle Tenant in tayle generall or speciall or tenant in franke mariage of land do commit petit Treason or Felonie and is attainted thereof and executed the King after his death shall neither haue the yeare day or wast in the felons land nor the Lord of the fée shall haue the land by Escheat but after the felons death the same land shall discend reuert or remaine secundum formam doni to the next heire in tayle of the felon or to him in the reuersion or remainder thereof for in this case the felon was in effect but tenant for the terme of his owne life and thereby could not forfeit a greater estate in his land than that which he had And in in like sort if he that hath land by fresh disseisin or is tenant in fee farme of land A disseiser Tenant in fée farme A mortgagée vpon condition to pay the vttermost yearely value thereof or hath land in Mortgage to be redeemed by the Mortgager vpon condition of payment of money or other condition doth commit petit treason or felonie and is attainted thereof the King shall not haue the yeare day and wast for that would tend to the preiudice of others not partie to the offence who haue or may haue a better right and title to the same lands than the felon attainted Fi. Cor. 310 36 If a man that is owner of land in antient demesne Tenant in antient demesne which hee may sell without consent of the Lord doe commit petit Treason or Felonie and is attainted thereof the King shall haue the yeare day and wast notwithstanding that he hath vsed to surrender the land into the Lords hands by a rod in the Court vpon euerie alienation thereof But if he be owner of the land in auntient demesne of a base tenure it is otherwise Fitz. Cor. 290. 37 A man that tooke a Church for felonie escaped and the towne pursued The yere day wast without attainder and killed him because he would not yéeld himselfe and this matter was presented before the Iustices in Eyre and they adiudged that his goods and the profits of his lands
should be forfeited to the King from the time of his flying vntill the presentment and also that the King should haue the yeare day and wast S. Br. 30. But this land shall not come to the Lord of the fée by Escheat because hée was not attainted of felonie Pi. Cor. 332 38 The King shall not haue the yeare day The yere day and wast of a Clerke conuict Land of small value and wast of the lands of a clerk conuict neither shall the Lord of the fée haue the forseiture thereof for that the offendor is not attainted but onely conuict of felonie And if the land of the felon attainted be but of the yearely value of thrée or foure shillings or of so small value Fi. Cor. 327 that it will cost more to obtaine it by suit out of the Kings hands than it is worth then the King shall not haue the yeare day and wast thereof St. 17. E. 2. 16 39 The words of the foresayd Stat. of Praerogatiua Regis be If they haue any fréehold When the K. shall haue the felons yeare day and wast it shall bée presently seised into the Kings hands This word presently ought to bee intended immediatly after the Office found and not before 49. E. 3. 11. Fitz. N. B. fol. 144. And therefore if an Office of that land bee not found vntill it bee many yeares after the felons attainder yet from the time of the Office found vntill a yeare and a day after the King shall haue the Felons lands And also the King shall haue the profit of the Felons lands from the time of his attainder vntill the Office bée found thereof though it bée twentie years betwéene the attainder and the Office for the heire of the felon cannot haue it in respect of the corruption of bloud And the Lord must not haue it by Escheat vntill the King bée intituled vnto it by Office and vntill one yeare and a day after and vntill the King hath wasted it vnlesse the Lord doth agrée with the King in the meane time for the sayd yeare day and wast And moreouer Fitz. Trauerse 48. 4. E. 3. 47. the Lord cannot at any time enter into the same land as escheated vnto him vntill hée hath sued a writ to haue it deliuered vnto him out of the Kings hands for after a writ is awarded to find the land of him that is attainted of Felonie another Writ shall bée directed to enquire if the King hath had the yeare Regist fol. 165. day and wast and that beeing found the Lord shall haue the land out of the Kings hands and not before because though the attainder of the Felon was found and that the King ought to haue had the yeare day and wast yet it may bee that the King neuer had the profit thereof but was interrupted by some pâ—â—â—on or by some casuall meanes 40 This commoditie to the King and forfeiture of the felon of the yeare Fit Cor. 310 day and wast is such a benefit to the King and so firmely and highly annexed to the Crowne The yere day and wast not grantable froÌ„ the Crowne that it cannot be seuered from it or granted to any other neither can any person claime it by colour of any franchise or libertie But after the King is intituled vnto it by Office hée may graunt or commit the land to another during the yeare and day and also giue him authoritie to take the benefit of the wast What goods of felons the king shal haue 41 The words of the foresaid stat of Praerog Regis be The K. shal haue all the goods of felons which be condemned and which bee fugitiue which is as much to say as he shall haue all their goods mouable and vnmouable for the King shal haue the corne growing vpon the land of the felon attainted and the issues and profits of the land which he hath in his owne right or in the right of his wife during the time of his life or vntill he doth purchase his pardon But touching the profit of fugitiues lands there is a difference betwéene a flying presented before the Coroner and a flying found by verdict vpon an acquitall for vpon a flying presented before the Coroner Forfeiture vpon flying Fi. Cor. 296 344. he shall forfeit the profits of his lands vntill his death or vntill he be acquit or vntill he hath purchased the K. pardon but vpon a flying found by verdict vpon acquitall he shall forf no issues of his lands for by his acquitall the land is discharged and consequently the issues thereof From what time forf of land shal haue relation 42 The law hath restrained offendors in Treason and Felonie to certaine times to make alienation of their lands and goods and hath prefixed limits whereunto the forfeiture of their said lands and goods shall haue relation and yet with this difference That as soone as any Treason or Felonie is committed the offendor therein is restrained to make any alienation of his lands for then it is not his land but by the committing of the Treason or Felonie Pl. Com. 263. 30. H. 6. 5. Bracton Fitz. Forf 30. Bracton l. 2. 13. hee hath forfeited all the estate which he had therein And therefore if betwéen the time of the committing of the Treason or Felonie and of the offendors attainder thereof the offendor doth make any alienation or assurance of his land after the time that the offendor shall be attainted of the same Treason or Felonie the said assurance shall bée void whether the same attainder bée by verdict confession or outlawrie for the forfeiture of the land shall haue relation from the time of the offence committed From what time the forf of goods shall haue relation 43 The forfeiture of goods and chattels shall not looke backe so farre as forfeyture of landes nor shall haue relation from the time of the Treason or Felonie committed but from the time of the Attaynder of the Treason or Felonie And therefore if one doe commit Treason or Felony Fi. Forf 30 and in the meane time betwéene the Treason or Felony committed and the offendors attainder thereof the offendor doth giue away his goods this is a good gift for as yet they be not forfeit but be his owne to maintaine himselfe and his family vntill he be attainted of Treason or Felony and by the Law adiudged not worthy to possesse or enioy goods nor to haue sustenance And therefore if vpon a fugam fecit presented before the Coroner one doe forfeit his goods he shall not forfeit those goods that hée had at the time of the Felony committed but he shall onely forfeit those goods which he had at that day when the fugam fecit was presented against him And in like sort if one that is indicted of Felony be acquit thereof by verdict and in their verdict the Iury doe find Fi. Cor. 296 that
nothing for that they be discharged of their charge and seruices which they did hold by which was as much as they receiued of the tenant perauaile And if they held of the King by lesse rent than their tenant perauaile held of them they shall haue the surplusage of that which was holden of them of the king by the way of petition Fitz. Assise 124. Fitz. Petition 19. And if the king doe not kéepe the land so escheated vnto him in his hands but will assure it to another hée must reuiue the tenure in the Mesne Lord to hold of them of whom it was holden before the attainder It appeareth by the statute of Praerogatiua Regis cap. 12. That the Kings and whole Court of Parliaments meaning was at that time when it was published and established by Parliament which were the Prerogatiues royall annexed to the Crowne of England by the common law That of such lands as did escheat to the King the seruice of the Lord of the fée should be reserued for the words of the Statute bee these viz. St. 17. Ed. 2. 12. The King shall haue escheat of the lands of Normans to whose sée soeuer they belong Sauing the seruice appertayning to the chiefe Lordes of the same Fée And King Henrie the third gaue the Escheates of Normans landes to bee holden of the chiefe Lordes of the Fee by Seruices and Customs due and accustomed thereunto Some of which Normans dwelling in Normandie at that time had lands in England and were subiects to the King of England and did forsake their obedience to the King of England and became subiects to the K. of Fraunce the King of Englands enemie and therby did forfeit those lands which they had in England by the common law and they did escheat to the king 48 In Petit Treason Who shal haue the forf in petit treason and felony and Felony the king shal not haue the escheat of the offendors land vnlesse it be holden immediatly of him but the king shal haue the profits of the said offendors land by the space of a yeare and a day and the land shall be wasted and destroyed in the houses woods and gardeins and in all things belonging to the same and then it shall bee deliuered to the chiefe Lord of the fée of whom the same land is immediatly holden And yet in some cases the King shall haue the forfeiture of the land of him which doth commit Petit Treason or Felonie though the land be holden of others and not of him St. 17. E. 2. 14. as it appeareth by the Statute of Praerogatiua Regis which hath ordained That the king shall haue the escheates of lands of Archbishops and Bishops fréeholders when such tenants be attainted of Felony committed in time of vacation whilest their temporalties were in the Kings hands to bestow in what sort it shall please him Sauing to such Prelats the seruice that to them is due and accustomed And therefore sauing in the cases aforesaid the mesne Lords of whom the lands be immediatly holden shall haue their escheats of their fréeholders lands that haue committed Petit Treason or Felonie which land after the King hath hath had the yere day and wast thereof they must haue deliuered vnto them out of the kings hands by suing out of a writ S. Br. 39. 49 If any stranger The Lords remedy for lands escheated vnto him or other sauing the King doth intrude into that land whereof the felon attainted was seised at the time of the felony committed the immediat Lord of the fée of whom the same land is holden may enter vpon him and put him out or else he may haue his writ of Escheat against him In the which writ he must rehearse the iudgement giuen against the person attainted viz. if he were attainted by outlawrie to alledge Eo quod praedictus A. feloniam fecit pro qua vtlagatus fuit and if he were attainted by abiuration to say Pro qua regnum nostrum abiurauit and if he were attainted by confession or verdict to say Pro qua suspensus fuit and if hee doe alledge one of those iudgements Fitz. Escheat 14. Fitz. Escheat 8. Fitz. Escheat 6. in the stead of another his writ shall abate And yet he néed not rehearse the manner of the felonie in his writ nor in his count but generally that he committed felonie And though there be error in the iudgement yet the Lord shall haue a writ of Escheat and the tenant shall not falsifie the iudgement by the errour 46. E. 3. 4. 50 Island escheat to the auncestor The heirs remedie for land escheated to his auncestor because his tenant was attainted of felonie and the auncestor dyeth before he doth bring his writ of Escheat or doth enter In this case the heire may haue a writ of Escheat and suppose that the partie attainted did hold of his auncestor Fitz. Escheat 17. 51 If a lease of land be made for the terme of life reseruing to the lessor a rent and the lessor payeth his seruices to the chiefe Lord and then the lessor is attainted of felonie Where the Lord shall haue his writ of Escheat and where he may enter and after the tenant for terme of life dyeth In this case the Lord paramount may haue a writ of escheat of the land for the rent which was reserued vpon the lease doth come in stead of the land and so in the consturction of law he died seised of the land But if no rent had béen reserued the Lord might haue entred into the land as escheated vnto him 6. H. 7. 9. but could not haue recouered it by a writ of Escheat no more than if his tenant being disseised had bin attainted of felony in which case his only remedy is to enter The forme of a 〈◊〉 of Escheat 52 This is the forme of the writ of Escheat Rex vicecomiti B. salutem Praecipe A. quod iuste sine dilatione reddat B. decem acras terrae cum pertinentijs in N. quas C de eò tenuit quae ad ipsum B. reuerti debent tanquam Escaeta sua eò quod praedict ' C. feloniam fecit pro qua suspensus fuit vt dicitur Vel pro qua vtlagatus fuit vt dicitur vel pro qua regnum abiurauit vt dicitur Et nisi c. And though the indictment was executed in other maner than is rehearsed in the writ yet the writ shall not abate Register fo 165. as if he were Decapitatus non suspensus for the execution of the iudgement is not material so that he had such a iudgement for the action is true though the writ be not true The K. remedie for land escheated to him 53 In all cases of felony if the king ought to haue the escheat he must haue an office found for him before he can enter for vntill the office found the king hath but a
possession in law and not in déed notwithstanding the death of him which is attainted But by the stat of an 33. H. 8. the king shal haue the lands St. 33. H. 8. 20. goods cattels and all other things of the offendors attainted of high Treason without any office the words of which stat be these viz. If any person or persons shal be attainted of high Treason by the course of the common lawes or statutes of this realme in euery such case euery such attainder by the common law shal be of as good strength value force and effect as if it had bin done by authoritie of Parliament And the K. his heires and successors shall haue as much aduantage by such attainder as well of vses rights entries conditions possessions reuersions remainders and all other things as if it had bée done and declared by authoritie of Parliament and shal be déemed and adiudged in actuall and real possession of the lands tenements hereditaments vses goods chattels and all other things of the offendors so attainted which his Highnes ought lawfully to haue and which they so being attainted ought or might lawfully loose and forf as if the attainder had bin done by authoritie of Parliament without any office or inquisition to be found of the same Any law statute c. notwithstanding By force of which stat the King shall be in actuall and reall possession of those lands which do escheat vnto him by any attainder of high Treason An office of those lands which do escheat for felonie without any office or inquisition thereof found though for those lands which do escheat vnto him by any attainder of felonie there must be an office found for him before he can enter according to the antient course of the common law Forf of title of Dower 54 By the common law any man attainted of Treason or felonie should haue forfeited that title which his wife had by their espousals to be endowed of his lands to the intent that if the care of his owne life could not stay him from the committing of felony or treason yet the loue which he did beare to his wife and children should restrain him therof whom he was assured by that wicked act to vndoe and vtterly to depriue them of all likelihood wherewith to maintaine them And some do affirme that this law was at the first deuised to punish the wise and to auoid her dower for that it was intended that the wife gaue consent vnto or at the least did know of the Treason or Felonie which her husband committed and either by intreatie persuasion or some other meanes might haue withdrawne him from it But the common law in that case is altered by the stat of Anno 1. Ed. 6. St. 1. E. 6. 12 whereby it is enacted That albeit any person or persons of what estate condition or degrée he or they be shal fortune to be attainted conuicted or outlawed of any Treason petit Treason Misprision of treason Murder or Felony whatsoeuer yet that notwithstanding euerie woman that is or shall fortune to be wife of the person so attainted conuicted or outlawed shal be endowable and enabled to demaund haue and enioy her dower in like maner and forme as though her husband had not béene attainted conuicted or outlawed Any statute law custom c. notwithstanding But after some part of the foresaid stat of Anno 1. E. 6. was altered by a braunch of a stat St. 5. 6. E. 6. 11. made Anno 5. 6. Ed. 6. whereby it was prouided and enacted That the wise or wiues whose husband or husbands hereafter shal be attainted of any Treasons whatsoeuer they be shall in no wise be receiued to aske challenge demand or haue dower of any the lands tenements or hereditaments of any the person or persons to be attainted of treason as is aforesaid during the said attainder in his force And yet sithence the foresaid stat of 5. 6. Ed. 6. it was specially prouided and ordained by the stat made Anno 5. El. 1. Anno 5. El. 11. An. 18. El. 1. That the husbands attainder of treason by force of any of the foresaid stat should cause no forf of dower in the wife S. Br. 27. Br. Appeale 117. Fitz. Iudg. 225 Plo. Com. 261. 55 If in an Appeale the Appellée do wage battell What the Appellée that wageth battell shall forf and the Appellant doth slay him in the field the Appellee shall forf all his goods chattels but his land shall not escheat for inheritance is so greatly fauoured that it shall not be forf without attainder by iudgement But if the Appellant do vanquish the Appellee then his land shal be forf for when he is vanquished and not killed iudgement shal be giuen that he shal be hanged and by that meanes he shall forf his land 6. H. 8. Dyer 2. 56 If a man seised of land in fée A rent charge pro consilio not forfeited doth grant a rent charge out of the same to another for the terme of the life of the grantee pro bono cōsilio suo impendendo with clause of distres within the same land if the grantée of this rent charge be attainted of treason and committed to prison yet hee shall not forf this rent charge to the K. for it is incident to the cause for the which it was giuen viz. to the counsell to be giuen by the grantée to the grantor which was a trust that the grantor reposed in the grantée to giue him counsell which trust the grantée cannot assigne or forf to another And though the grantée of this rent charge be attainted of treason and imprisoned yet the grantor may come or send to him for his counsel and he may giue it him and so there wil be no fault in him But if a man do purchase a rent charge for the time of his life out of another mans lands in consideration of a summe of money paid by the grantée to the grantor and after the grantee is attainted of treason or felony the same rent charge shal be forf to the K. and paid to him during the life of the grauntée S. Br. 27. The forfeitures of an Outlaw 57 Out of all which foresaid forfeitures Bracton de coron̄ c 13 the words of Bracton may be verified who writeth That a man outlawed or otherwise attainted of Treason or Felony shall forfeit his coūtrey and kingdome and shall become a banished man who in English is called an Outlaw And in former times he hath béene tearmed a Friendlesse man and so he hath séemed to forfeit his friends for if any man after his Outlary doth willingly féed him receiue him kéepe company with him or hide him he shal be punished in the same sort that the Outlaw shall Also he shall forfeit all things which be peaceable séeing that from the time he is an Outlaw he carieth a Wolues head so
that all men may kill him without punishment and specially if he defend himselfe or flie away in such sort that he may be hardly apprehended But if he doe not flie or defend himselfe then he that killeth a man so taken shal answere for him as for any other man for that life and death be in the kings hands vnlesse there be a custome to the contrary as in the Counties of Hereford and Glocester And he shal forfeit the benefit of Law for he which being outlawed will be so bold as to returne without the kings licence shall die without law or further examination in iudgement And he cannot appeale others for he hath lost the benefit of law and carieth with him his iudgement vpon his head he can haue no defence so long as the Outlary standeth in force It is vpright iustice that he shal perish without law and iudgement who refuseth to liue according to the law And he shall forfeit his right and possession of all things that he hath gotten or may get And all bonds obligations homages fealties oathes and other contracts made with him be dissolued which can neuer be reuiued but vpon a new contract though he be restored And he shal forfeit all his tenements and hereditaments from him and his heires and euery action that was due to him before his Outlary though he be after restored by the kings pardon And Outlary of felony and euery other iudgement of felony doth dissolue all the gifts sales of land that he made sithence the time of the felony committed The outlawes goods shal be the kings for he cannot be outlawed in any other place but in the kings Court as in the Country Court or in the Hustings of London ⧠Corruption of Blood 1 BY attainder of Treason or Felony commeth corruption of Blood that is to say that the offendors children cannot be heires to him that is attainted nor to any other auncestor Corruption of blood salued by Parliament only And if the offendor were a Nobleman or a Gentleman before by this attainder he is become ignoble and not onely he himselfe but also all his children hauing respect to the Nobilitie which they had by their birth And this corruption of Blood is so grieuous that it cannot bee salued otherwise then by authoritie of Parliament But if the King will pardon the offendor it will cleanse the corruption of blood of those children which be borne after the pardon and they which be borne after the pardon may inherite the land which their auncestor purchased at the time of the pardon or after but so cannot they which were borne before the pardon And also he that is attainted of Treason or Felony shall not bee heire to his father but his disabilitie shall hinder others to be heire so that during his life the land shall rather escheat to the lord of the fée 27. Ed. 3. 77. Fi. Petit. 20 then discend to another But if he that is attainted doe die without issue of his body during the life of his auncestor then his younger brother sister or cousin shall inherite for if the eldest sonne be hanged Fi. Discēt 6. 26. As p. 2. or doth abiure the Realme for Felony during the fathers life it is no impediment but that the youngest sonne may inherite 29. As p. 11 13. H. 4. 8. Fit Discent 17. And if he which is attainted of Treason or Felony in the life time of his auncestor doe purchase the Kings pardon before the death of his auncestor yet he shall not be heire to his said auncestor but the land shall rather escheat to the lord of the fée But if the eldest sonne be a Clerke conuict in the life of his father and after his father dieth in this case he shall inherite his fathers land because he was not attainted of Felony for by the common Law hée should haue inherited after hée had made his purgation And now by the Statute of Anno 18. Eliz. hée shall bee forthwith enlarged after burning in the hand Fi. Cor. 382 St. 18. Eli. 6. and deliuered out of prison and not committed to the Ordinary to make his purgation and so he is in case as if he had made his purgation Where corruption of blood shall preiudice tenant by the courtesie 2 If a man that hath land in the right of his wife haue issue 13. H. 7. 17 and doth commit Felony for the which he is attainted and the king doth pardon him in this case if his wife doe die before him he shall not be tenant by the courtesie for the corruption of blood of that issue But it is otherwise if he hath issue after the pardon for then he shall be tenant by the courtesie although the issue which he had before the pardon be not inheritable The eldest sonne attainted of felony during his fathers life 3 If a man seised of lands hath issue two sonnes 32. H. 8. Dyer 48. and the eldest is attainted of Felony in the life of his father and is executed for the felony or otherwise dieth during the life of his father and after the father dieth seised of the land the land shal discend to the youngest sonne as heire to his father if the eldest sonne hath no issue then liuing But if the eldest sonne that was attainted hath any issue in life which should haue inherited but for the attainder the land shall escheat to the lord and not discend to the younger brother for that the blood of the eldest brother is corrupted Where an attainder but n◠corruption of blood 4 S. Forfeiture 27 That the attainder of Treason or Felony in certaine cases shal not extend to make any corruption of blood the disinheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other then of the offendor or offendors during his or their naturall liues only ⧠Restitution of stolne goods 1 HAuing written of Robberies and other Felonies and declared how Felons are to be prosecuted by Arrest Appeale Indictment Arraignment Tryall and Iudgement and what they shall forfeit I meane now to shew how true men whose goods were robbed stoln or feloniously taken from them by such Felons shall be restored to their goods againe As it is necessary for the Commonwealth that Felons should be punished least the impunity of some should incourage them and also allure others to commit the like offences so is it fit that they chiefely whose goods were taken from them and therby haue tasted the smart and receiued the losse by the Felons and are more likely to know who they be and where they be then others are should doe their vttermost endeauor to procure those Felons to be apprehended brought to their answers and to haue them punished according to their demerits that is to say he that was robbed What is fresh suit or whose goods were stolne from him ought presently after the
vpon the one shal be also an acquitall vpon the other By the letter of the said statute of Westm 2. this word Malice doth only referre it selfe to Abettors and Procurors but yet it is commonly taken to extend as well to the appellant as to them The Statute extendeth to all felonies 3 The said stat of West 2. saith when any is appealed of felony St. 13. E. 1. 12 this word felony is not only intended of such offences which were felonies at the time of making the said statute but also of all other offences which haue béen made felony by stat sithence the said statute And therfore in an appeale of rape which was made felony by the same stat of West 2. the plaintife was nonsute when the Enquest was to be taken and the def was arraigned at the kings suit Fi. Cor. 275 381. and found not guilty and the Iury was charged to inquire of the abettors The defendant acquited by battell 4 The words of the said statute of West 2. be When any doth acquit himselfe in due manner which may be intended as wel that the defendant shal recouer dammages where he doth acquite himselfe by battell St. 13. E. 1. 12 as where he doth acquite himselfe by the country But that acquital by battell is to be construed in this manner where the appellant when he is in the field will acknowledge his appeale to be false for that is a kind of vanquishment Fit Cor. 98. for it must not bée intended where the appellant is slain in the field séeing when the person of the appellant is dead the dammages be also gone for euer without any recouery to be had of them 5 It is to be noted that there is an acquitall in law as well 〈◊〉 an acquitall in déed for if two be appealed one as principall and the other as accessory and the principall is acquite by this acquitall the accessory shall recouer his damages against the appellant if the Enquest which tried the principall Where the accessory in appeale shall recouer damages were also charged vpon the accessory 2. 3. P. M. Dy. 120. 35. H. 6. 2. though they gaue no verdict of the accessory for in this case the accessory shall haue a writ of Conspiracy by the common Law because by a meane he put his life in ieopardy But it is otherwise if the principall be acquit and the accessory did not appeare but depended in proces for in that case he ought expressely to be acquit by verdict 41. As p. 24 or otherwise he shal not recouer dammages by force of this statute neither shal he haue a writ of Conspiracy by the common law St. 13. E. 1. 12 6 These words of the foresaid stat of West 2. be of great moment viz. whē any which is appealed of Felony doth acquite himselfe in due maner for if the def doth barre the plaintife of his appeale Where the def is said to acquite himselfe in due maner and where not he cannot recouer damages thereby against the plaintife except the barre be such as doth acquite the def of the Felony And therefore if the def doth plead that the appellant is a bastard or hath an elder brother or was neuer accoupled in lawfull mariage or such like pleas in barre and by these pleas doth barre the plaintife yet he shall not recouer damages against him for the def may be indicted againe of the same Felony and attainted 27. Ass p. 25 Fi. Cor. 77. notwithstanding by either of these pleas he is discharged of the appeale as well against the king as against the appellant for those pleas which do not trythe def innocency in the Felony do neuer giue him dammages any more then if he had pleaded in abatement of the writ of Appeale such a plea as had abated it For notwithstanding such a plea doth discharge him of the appeale as well against the K. as against the party yet it doth not discharge him of the felony Fit Cor. 12. And the like law is if in an appeale the def do barre the appellant by a demurrer in law yet he shal not recouer damages against him for the def innocency in the felony doth not by that meanes come to triall And so it is if in an appeale of the death of a man the def do plead to issue is foūd by verdict to kill the man in his owne defence 22. As p. 77. or by misaduenture in these cases he shall recouer no dammages against the appellant for this is no acquitall of the Felony because the def is inforced to purchase his pardon to purge him of the Felony and besides it doth appeare that this appeale was not commenced vpon malice Fi. Cor. 386. In like sort if the def in an appeale vpon his arraignmēt will demand his Clergy the Court wil take an Enquest of office to inquire whether he be guilty or not and the enquest doth find him not guilty yet by this acquitall he shall not recouer damages for in that he demaunded his clergy before triall he did rather in a sort confesse the Felony by implication then otherwise But if he had refused his clergy and put himselfe vpon the enquest who had acquited him then he had bin acquite in due manner according to the foresaid statute should haue recouered his damages And so it is if the def in an appeal hath the release of the appellant or the K. pardon will waiue them plead not guilty put himselfe vpon the countrey and is acquit he shall recouer damages yet he hath done a thing of record viz. by purchasing the K. pardon wherin by implication he doth confesse the Felony But if it were a pardon by act of Parliament 11. H. 4. 40 he could not weiue it If the def be acquit erroniously without due proces he shal not recouer his damages against the plaintife for that the words of the foresaid statute of West 2. be Se acquietauerit in curia Regis modo debito As 9. H. 52 where the def doth appeare by the Exigent vpon whom the Shirife hath returned Cepi corpus defendentis where he should haue returned Exegi feci and the defendant doth appeare vpon the Euidence and without taking aduantage thereof pleadeth not guilty to the appeale and it is so found for him yet some do affirme that he shall not recouer his dammages because he is acquit erroniously without due proces But others vpon greater reason do hold that the Error in the proces is not materiall Fi. Cor. 444. so long as there is no Error in the writ of appeale declaration or pleading for the def is arraigned vpon the originall Writ and not vpon the meane proces Acquite at the K. suit is only vpō an appeal 7 The foresaid statute of West 2. hath ordained St. 13. E. 1. 12 That when any which is appealed of felony
Lord shall haue a Writ of Escheat and where he may enter 52 The forme of a Writ of Escheat 53 The kings remedy for lands escheated vnto him An office for those lands which doe escheat for Felony 54 The wiues forfeiture of title of Dower 55 What the appellee that wageth battell shall forfeit 56 A Rent-charge pro consilio not forfeited 57 The forfeitures of an outlaw Corruption of Blood Fol. 239. 1 Corruption of Blood salued by Parliament only 2 Where corruption of blood shall preiudice tenant by the courtesie 3 The eldest sonne attainted during his fathers life 4 Where attainder but no corruption of blood Restitution of stolne goods Fol. 240. 1 Restitution of goods vpon Fresh suit 2 What conuiction shal be sufficient to giue the owner restitution of his goods 3 Where the owner shall haue restitution 4 Before whom and by whom inquirie of Fresh suit is to bee made 5 Restitution vpon attainder by indictment Damages in Appeale Fol. 242. 1 The punishment of the appellant and the abettors when the appellee is acquit No Essoine for the appellant in an appeale of death 2 The appeale must bee commenced vpon malice 3 The statute of 13. Ed. 1. extendeth to all Felons 4 The defendant in an appeale acquited by battell 5 Where the accessarie in an Appeale shall recouer dammages 6 Where the defendant is said to acquit himselfe in due manner and where not 7 Acquitall at the Kings suit is only in appeale 8 What Iustices may inflict the penaltie vpon the Appellant 9 The dammages for seuerall persons assessed seuerally 10 Where the appellant shall pay a fine to the king 11 In what cases inquiry shall be made for the abettors 12 What pleas the abettors may plead 13 Proces against the abettors Nonsute in the proces against the abettors 14 A writ against the abettors by the appellee 15 Procurers of indictments for suits in spirituall courts A Writ of Conspiracie Fol. 245. 1 In what case a Writ of Conspiracie doth lye 2 Conspiracie maintenable vpon an acquitall in an indictment or appeale 3 The indictment must be false which giueth the Writ of Conspiracie 4 Conspiracie doubtfull whether true or false 5 The conspirators do become indictors A Iustice of Peace A giuer of Euidence 6 Who be conspirators 7 A Conspiracie must bee by more then one Where only one shal be charged in Conspiracie 8 No Writ of Conspiracie against the Husband and the Wife 9 The forme of the Writ of Conspiracie 10 The writ of Conspiracy for the accessarie 11 Barres in a writ of Conspiracie 12 Iudgement in Conspiracie A villanous iudgement 13 Inquiry of Conspiracie by Iustices 14 Inquiry of Conspirators at the kings or parties suit 15 Procurers of an indictment or an appeale in a forraine county 16 An offence supposed to bee done in a place where there is none such The Coroner and his authoritie and dutie in Felonies c. Fol. 249. 1 The office and duty of a Coroner 2 The Writ de Coronatore Eligendo 3 Who shall be Coroners and by whom they shal be chosen 4 Whether Coroners ought to be knights 5 Causes to remoue a Coroner 6 Where a Coroner shall haue fee and where not 7 What things Coroners shall inquire of 8 A Coroner shall execute his Office in his owne person A Câ—â—oner shall see the dead body A body buried taken vp againe 9 A Coroner must presently doe his office 10 A Coroner shall onely enquire of the death of a man A man slaine in an arme of the Sea A Coroner concealing or not apprehending a Felon 11 The force of a Coroners Record Which Coroners Record shall be preferred Abiuring before the Coroner Confession of breaking of Prison before the Coroner 12 Who ought to appeare vpon the Coroners Inquisition 13 The Coronour with the Sherife may take Appeales 14 Stopping vp of a place of daunger by the Coroners commaundement 15 Where the presence of all the Coroners is requisite and where but some one of them 16 The Coroner must record the euidence and bind the party to giue it 17 Inquiry of a man slaine within the Kings House and Verge 18 One man Coroner of the Kinges House and the Countie Who shall be Judge in Treason and Felony Fol. 253. 1 The King ought not to bee iudge in Treason or Felony What men of condition Iudges ought to be 2 None shall make Iudges but the King 3 Iudges vpon the arraignement of the Peeres of the Realme 4 Iudges of offences that are done in the Kings Pallace 5 Iudges of Conspiracies made to destroy the King or any Lord c. 6 Iudges within the Verge 7 Iudges of Treason committed out of the Realme 8 Iustices of Gaole deliuerie Iudges in Felony 9 Iudges of Nisi prius Iudges in Felony c. 10 Speciall commissioners Iudges at the arraignement of a Murderer 11 Iudges of piracie or offences done vpon the sea 12 Iustices of Peace Iudges in Felony 13 The Lord of a Mannour Iudge in Felony Infangtheefe Outfangtheefe 14 A Felon first executed and then iudged FINIS
to him and so no other person is intituled to haue those goods the King shall haue them as confiscat according to the old text Quod non capit Christus capit fiscus And the appellant shal be thus punished by the losse of his goods for his negligence attenuating concealing of the robbers offence Confiscation by a false appeale 20 If a man bring an Appeale of Robberie against another which tooke the Appellants goods lawfully Fitz. Cor. 367. and not feloniously viz. found them in the high way it is so found by verdict in this case though the appellée hath no cause to detaine them against the appellant for that they were his owne goods yet the plaintife shall loose them for his false appeale and they shall bee confiscat to the King and also the appellant shall bée committed to prison for charging the defendant with robberie whom he did know came lawfully by the goods Co. li. 5. 110 and so for malitious séeking of a mans bloud without cause and the defendant shal be discharged 21 There is another kind of forfeiture of felons goods to the King which is called a waif A waife and that is when a felon vpon huy and cry or other pursuit after him or for feare to bee taken er otherwise to ease himselfe of carriage Co. li. 5. 109 doth without Huy and crye wayue cast away or goe from the goods that hée did steals and hath in his possession or some part thereof and doth flye away whereupon the Kings Officers or some other in the Kings right doth seise those goods Seising of a waife In this case the goods so seised be called a waife and the King shall retaine them to his proper vse if the owner of them doth not make fresh suit after the felon to attaint him for those goods And if the owner doe make fresh suit after the felon hée shall haue his goods againe notwithstanding the waiuing and seising of them And this forfeiture of goods by waife is a penaltie which the law imposeth vpon the owner of those goods for default of fresh suit against the felon and for omitting his duetie in pursuing and apprehending of the felon being a pernitious and corrupt member of the Commonwealth St. 21. H. 8. 11. And by the Statute of 21. H. 8. the Iustices before whom any felon or felons shal be found guiltie or otherwise attainted by reason of euidence giuen by the partie robbed or owner of any money goods or cattels robbed or by any other by his procurement haue power to award from time to time writs of Restitution for the said money goods or cattels as though any such Felon or Felons were attainted at the suit of the party in Appeale But if a felon doe steale goods Co. li. 5. 109 and carrie them into a Mannor and there leaue them or leaue them in his owne house or in the house of any other or in the custodie of any other or hide them in the ground or in any secret place and after doth flie these goods shall not be adiudged in law to be waiued nor shall bée forfeited for if the felon hath not the goods with him when he doth flie or doth waiue them for feare to be taken they shall not be accounted waiued or forfeited but the owner may take them againe without fresh suit for that there is no default in him 22 If a felon do steale goods and after doth waiue them The owner seiseth goods waiued the owner of them may reseise the same goods and carrie them away twentie yeres after the waiuing of them if in the meane time no Officer of the Kings nor of any Lord of a libertie 21. Ed. 4. 16. hath seised them before the owner But if any Officer of the Kings or of any Lord of a Franchise hath seised them before then the owner must sue an Appeale against the felon and so he may haue his goods againe if hée hath made fresh suit or else the owner must procure the felon to be indicted arraigned and found guiltie or otherwise to be attainted by euidence giuen by himselfe or by some other by his procurement and by that meanes obtaine a writ of Restitution to be awarded by the Iustices before whom the sayd felon shall be arraigned according to the foresaid statute of 21. H. 8. 11. And the like law is if a felon do steale goods and doth not waiue them nor any Huy and crie is made vpon him but one in the Kings right doth take the goods from the felon vpon suspition that he hath stolne them yet the owner vpon fresh suit shall haue restitution of them againe for it may be that the owner had not intelligence of the stealing of his goods a long time after they were stolne and then could not make fresh suit nor leuie huy and crie 23 There can be no waife but of goods stolne sauing in certaine cases for if one do take goods as a trespassor and doth goe from them No waife but of stoln goods no man can seise them as a waife P. 13. E. 4. 5 And therefore in an action of Trespas of goods taken away if the defendant do iustifie for a waife it is a good issue for the plaintife to ioine that the goods were not stolne And if a man do fly for a felonie and leaue his house goods yet those goods shall not be a waife for that they were not stolne And in some speciall case there may be a waife though there be no stealing Waif of goods not stolne as vpon a huy and cry leuied 29. E. 3. 29. a man that hath committed no felony doth leaue his owne goods and doth flie to a church those goods may be seised to the Kings vse for a waife No waife of goods stolne from an Alien 24 If the goods of an Alien which hath the Kings safe conduct both for bodie and goods be stolne from him and by the felon bée after wayued and refused yet those goods cannot bée claimed or seised by the Officers of the King or of any Lord of a Franchise for a waife for when the King hath graunted to the Alien safeconduct both in bodie and goods and this is a couenant betwéene the King and him then if a felon doe steale his goods and after waiue them it is no reason that the Alien should loose them and be put to sue against the felon but he must sue to the King vpon his couenant And therefore the K. cannot haue those goods as waife and by the same reason hee cannot graunt them to another neither can any haue them by prescription Forf of lands 25 As he that is attainted of Treason or Felonie shal loose his goods debts and rights Tenant for yeares so also shall be forfeit his leases for terme of yeares of lands the lands which he holdeth by extent of Statutes Recognisances or Iudgemēts his