an appeale or an indictment then the matter commeth to be tried betwéene the King and him or the appellant and him whether he be guiltie Triall of the plea Not guiltie or not If it be in an appeale it may be tried by Verdict or by Battell as the appellée will sauing in certaine Cases But vpon an Indictment there is no triall by battell nor otherwise sauing onely by verdict In an Indictment of treason or felonie against one of the Péeres of the Realme the triall is by his Péeres which manner of triall in an appeale is not allowable The arraignment of a Peere of the Realme 2 When a Péere of the Realme 1. H. 4. 1. 13. H. 8. 13. 10 Ed. 4. 6. and Lord of the parliament is to be arraigned vpon any treason or felonie whereof he is indicted and whereunto he hath pleaded Not guiltie the King by his Letters patents shall assigne some great and sage Lord of the parliament to be high Steward of England for the day of his arraignement who before the same day shall make a precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him eightéene or twentie Lords of the parliament vpon the same day And then at the day appointed when the high Steward shall be set vnder the cloth of Estate vpon the arraignement of the prisoner and hath caused his Commission to be read the same Serieant shall returne his precept and thereupon the Lords shall be called and when they haue appeared and be set in their places the Constable of the Tower shall be called to bring his prisoner into the Court who then shall bring the prisoner to the Barre And then the high Steward shall declare vnto the prisoner the cause why the King hath assembled thither those Lords and him and perswade him to answer without feare And then hée shall cause the Clerke of the Crowne to reade his Indictment vnto him and to aske him if hée be guiltie or not whereunto when hée hath aunswered Not guiltie the Clerke of the Crowne shall aske him how he will be tried and then he will say by God by his Péeres And then the K. Serieants and Atturney will giue Euidence against him whereunto when the prisoner hath made answer the Constable shall be commaunded to retire the prisoner from the Barre to some other place while the Lords doe secretly conferre together in the Court and then the Lords shall rise out of their places and consult among themselues and what they affirme shall be done vpon their honours without any othe to be ministred vnto them And when they all or the greatest part of them be agréed they shall returne to their places and sit downe And then the high Steward shall aske of the yongest Lord by himselfe if he that is arraigned be guilty or not of the offence whereof he is arraigned and then of the yongest next him and so of the residue one by one vntill he hath asked them all and euery Lord shall answer by himselfe And then the high Steward shall send for the prisoner againe who shall be led to the Barre to whom the high Steward shal reherse the verdict of the Péeres and giue iudgement accordingly But if an Earle the sonne and heire apparant of a Duke or a Lord the sonne and heire apparant of a Marques or Earle 38. H. 8. Br. Treason 2 be indicted of high treason he shall be tried by Knights and Gentlemen and not by Péeres for he is not an Earle by Creation but by Natiuitie But if he be of dignity by creation and a Lord of the Parliament hee shall be tried by his Peeres 3 The foresaid manner of Triall séemeth to be appointed by the Statute of Magna Charta St. 9. H. 3. 29. which hath ordained That no frée man shall be taken or imprisoned or disseised of his fréehold liberties or frée customes nor shall be outlawed banished or by any meanes brought to destruction Neither wée will passe or sit in iudgement vpon him but by the lawfull iudgement of his Péeres or by the lawe of the Realme We will not sell deny or deferre iustice or right to any It appeareth by this statute of Magna Charta By whom Péeres appealed shal be tried that a Péere of the Realme shall be tried by his Péeres onely in case where he is indicted at the Kings suite of treason or felony for the words of the statute be we will not passe or sit in iudgement vpon him but by his Péeres 10. Ed. 4. 6 But if an appeale of murder or other felony be sued by any common person against a Péere of the Realme he shall be tried by common persons and not by his Péeres And because there was no mention made in the said statute of Magna Charta how women Ladies of great estate because of their husbands Péeres of the Realme married or sole viz. Duchesses Countesses or Baronesses should be put to answer nor before what Iudges they should be iudged vpon indictments of treasons or felonies by them committed and for that the saide statute of Magna Charta doth onely make mention of a man Therefore by a statute made Anno 20. H. 6. 9. St. 20. H. 6. 9 it was enacted By whom ladies shal be tried That such Ladies of great estate viz. Duchesses Countesses and Baronesses which shall be indicted of any treason or felony by them committed whether they be married or sole shall be brought to their answer and put to answer and iudged before such Iudges and Péeres of the realme as Péeres of the realme should be if they were indicted or impeached of such treasons or felonies committed 4 None of the foresaid statutes haue béene put in practise to extend to Bishops Bishops though they enioy the name of Lords of the parliament for they haue that name of Bishops in respect of their office or function and not in respect of their nobilitie neither haue they places in parliament in respect of their nobilitie but in regard of their possessions being ancient Baronies annexed to their dignities If a Péere of the Realme be indicted of treason or felonie he may be thereupon arraigned in parliament Arraignment in parliament if it shall please the King 10. E. 4. 6 and then the Lords spirituall shall make one Procurator for them for that by the Cannon lawe they cannot condemne any man to death A Bishop was arraigned in the Kings Bench and not by any Lords of parliament for that hée came to the parliament by summons and departed without licence 3. E. 3. 19 and because this was an offence as well to the King as to the Péeres and the King may comemnce a suite where he please for a trespas done to him therefore this was accepted a lawfull indictment though the complaint was made in an inferiour Court for an offence done in an higher
that he did cause some lawfull punishment to be inflicted vpon certaine of them for their crimes notwithstanding all these or such like misdemeanors be neither Treason nor Felony by the Law but a Riot and yet in respect of the basenesse of the parties which committed this wrong of the cause for the which they put it in practise of the worthinesse of the person and of his place vpon whom it was executed of the barbarous course taken in the performance therof of the perillous exāple giuen to other malefactors these riotors deserue to bée censured with a much sharper punishment then the former For as there be no bounds obserued by leud and wicked persons of their outrages so be there no certaine means or limits assigned of their punishments but the said most honourable Court of estate may draw forth his Maiesties sword of iustice and first punish the said offences according to the particuler lawes and statutes prouided therfore and then euery person transgressing by himselfe according to the circumstance of his demerits as partly may appeare by the statute of anno 3. H. 7. St. 3. H. 7. 1. which expresseth some parts of the authority giuen to the Lords of the said Court and more by a branch of the statute of Magna Charta whereby it is enacted St. 9. H. 3. 14 That euery fréeman shall be amerced viz. punished for reasonable cause according to the quantity of his offence And further by the statute of Anno 33. H. 8. St. 33. H. 8. 1 which giueth the lords of the said Court of Starre-chamber authority to punish those who by counterfeit letters or tokens shall get other mens goods into their hands by imprisonment setting vpon the pillory or other corporall paine whatsoeuer except death ⧠Treasons 1 CRimen lesae Maiestatis What is Treason in our English tongue called Treason is a great offence done to the Maiesty of gouernement and the peace of the land which the wisdome of this Realme hath from age to age so much hated and abhorred that they haue persecuted those that were guiltie therin with most violent and vntimely death and with extreame and seuere tortures they haue ordained that an offendor therein shall be hanged and cut downe aliue that his bowels shall bée cut off and burned in his sight that his head shall bée seuered from his bodie that his quarters shall bée diuided asunder and disposed at the Kings pleasure and made food for the birds of the aire or the beasts of the field and that his wife and children shall be thrust out of his house and liuings that his séed and blood shall be corrupted that his lands and goods shall be confiscated and as by the statute of 29. H. 6. 1. it is ordained of the Traitor Iohn Cade he shall be called a false Traytor for euer And as our respectiue and considerat forefathers haue deuised to yéeld vnto those grieuous offendors Legem talionis and to teare their bodies lands and goods who doe practise to rent and pull asunder this Maiestie of gouernement by destroying the head or such as are like to be the principall succéeding members thereof or by diuiding the bodie into parts or by weakning the force and strength thereof or by subuerting the chiefe Magistrats of iustice or by counterfeiting staining or blemishing of the peculiar and royall Ensignes Cognisances and Sinewes thereof so haue they béene carefull and prouident that there should be no greater number of those dreadfull sharpe and bitter lawes than vrgent necessitie for the preseruation of that Maiestie of gouernment required And because it was in former times greatly doubted and ofttimes called in question amongst the Sages of the Realme and learned in the lawes which offences were by the common law high Treason and which not and which were petit Treason and which not and seuerall men were of seuerall opinions therein and to the intent that al future ages might know and be more vigilant to eschew the penalties thereof King Edward the third at his Parliament begun at Westminster the thirtéenth day of Ianuarie St. 25. E. 3. 2 in the 25. yere of his raign at the request of his Lords and petition of his Commons made a declaration thereof in manner as hereafter followeth viz. It is high Treason where a man doth compasse High treason or imagin the death of our Soueraigne Lord the King or of our Ladie the Quéene his wife or of their eldest sonne and heire or if a man doth deflower the Kings wife or the Kings eldest daughter being vnmaried or the kings eldest sonne and heires wife or if a man doe leuie warre against our Lord the king in his Realme or be adherent to the kings enemies in his Realme giuing to them aid and comfort in his Realme or else where and thereof be probably attainted of open deed by people of their owne condition And if a man do counterfeit the Kings great Seale or his priuie Seale or his money which offences Bracton doth terme Crimen falsi And if a man bring false money into this Realme counterfeit to the money of England knowing the money to be false Bracton de Corona cap. 3. to marchandise or make paiment in deceit of our Lord the King and his people And if a man kill the Chauncellor Treasurer or the Kings Iustice of the one Bench or the other Iustices of Eire and of Assises and all other Iustices assigned to heare and determine beeing in their places doing their Offices And it is to bée vnderstood that in the cases aforesaid it ought to bee adiudged Treason which extendeth to our Lord the King and his royall Maiestie And of such Treason the forfeiture of the escheat doth appertaine to our Lord the King as well of the lands and tenements holden of others as of himselfe And moreouer there is another manner of Treason Petit treason that is to say When a seruant killeth his Master or a wife her husband or when a secular or religious man killeth his Prelat to whom he oweth faith and obedience And such manner of Treason giueth the escheats to euery Lord of his owne fée And because many other cases of like Treason may happen in time to come which a man cannot thinke of nor declare at this present It is accorded that if any other case supposed to be treason that is not before specified doth happen of new before Iustices the Iustices shall stay without proceeding to iudgement of Treason vntill the case be declared and shewed before the King and his Parliament whether it ought to be adiudged Treason or other Felonie And in case any man of this Realme doe ride armed openly or secretly with people armed against another for to kill or rob him or to take and detaine him vntill he hath made fine and ransome to be deliuered it is not the King or his Counsels wil that in such case it shall be adiudged Treason but it shall be
Trial of treason committed in Ireland 5 If an Earle 19. 20. El. Dy. fo 360 or a Lord of Ireland doth commit treason in Ireland by open rebellion he cannot be arraigned and put to his triall therefore in England for he can neither be tried by his Péeres nor by any Iurie of twelue men in England because he is not a subiect of England but of Ireland and therefore his triall shall be in Ireland And the custome there is to attaint a Péere by parliament and not by his Péeres Misprision 6 This order of triall by the Péeres is likewise to be obserued where one of the Péeres of this realme is indicted but of misprision of treason or felonie in which triall the same forme shall be kept as it shall be where any Péere is indicted of treason or felonie and arraigned thereupon And the number of Péeres which shall be to trie a Péere indicted of treason The number of Péeres at the Triall felonie or misprision shall be twelue at the least and more if it shall please the King Triall by Peeres in all cases of treason and felony 7 In euery case where any offence or fact is of new made treason by any Statute the Lords of the Parliament and Péeres of the Realme offending therein shall haue their triall by their Péeres though the Statute doth not prouide for it by speciall words as other inferiour persons offending in the like crimes shal haue their triall by the verdict of twelue men their péeres viz. their equals so that the words which be commonly put into new Statutes that Péeres of the Realme offending therein shal be tried by their Péeres bée not of necessity inserted But because the course of the common law is in some sort altered by the statute of an̄ 33. H. 8. 23. St. 33. H. 8 23. authorizing the King to graunt a commission vnto such persons and into such shires as he will for the triall of any murder committed in any other countie or place of the Realme whatsoeuer And also by the Statute of 35. H. 8. 2. St. 35. H. 8. 2 giuing the King like power to direct a commission into any countie of this Realme and to any persons that he will for the triall of treasons and misprisions of treasons committed out of the Realme yet for that the triall in both those cases might be made by such persons as the common law hath appointed viz. of péeres by their péeres it is so prouided and ordained by the special words of both those statutes ⧠Triall by the Countrie TRiall by the Countrie Triall by the Country is a triall by twelue common persons of that vicenage or neighborhoode where the treason or felony was committed which kinde of triall séemeth also to be warranted and approued though not at the first begunne by the before rehearsed Statute of Magna Charta St. 9. H. 3. 29 which saith Neither shall any passe or sit in iudgement vpon him but by the lawfull iudgement of his Péeres or by the Law of the realme And thereupon it is accordingly vsed that Knights Esquiers and Gentlemen of great estate being indited of treason or felony be tried by their péeres viz. by their equalls in degrée being also Knights Esquiers Gentlemen or Merchants of good estate 1. M. Dy. 99 and inferiour persons be likewise tried by their péeres or equalls viz. by men of their owne degrée or most commonly by men of better or greater estate or degrée 2 If he that is charged to be an offendour in petit treason murder or felonie doe pleade to an Indictment found against him matter triable by an other Countie than the Countie which did indict him although by the common lawe he ought to haue béene tried in that forraine countie yet now by the Statute of Anno 22. H. 8. St. 22. H. 8. 14. 32. H. 8. 3 he shall be tried by the countie which did indict him the words of which Statute be these viz. For more spéedie trialles of murders and felonies Be it enacted c. That all manner of forraine pleas Triall of forraine pleas triable by the Countrie hereafter to be pleaded by any person or persons arraigned vpon any Indictment for any petit treason murder or felonie shal be forthwith tried before the same Iustices before whom such persons shall be arraigned and by the same Iurors of the same countie that shall trie the petit treason murder or felonie whereof he shall so be arraigned without any further respite or delay in whatsoeuer countie or counties place or places of this Realme the matter of the same pleas be supposed or alleadged This statute maketh no mētion of high treason therfore forrain pleas in high treason remaine to be tried in those forren counties as they were at the cōmon lawe And so be they in an appeale Appeale for this statute extendeth to Indictments onely But if A. doe strike B. vpon the Sea and there giue him a mortall wound whereof B. dieth in the Countie of L. in this case A. Coke 2.93 shall be discharged of the death of B. for they of the Countie of L. cannot inquire of the death without inquirie of the wound A man stricken vpon the Sea dieth vpon the Land and of the wound they cannot inquire because it was giuen vpon the Sea and not in any Countie or place in this Realme And they of the Admiralles Iurisdiction can not inquire as of a felonie of the wound without inquiring of the death and of the death they can not inquire because it was within the body of a Countie where by the statute of 13. R. 2. 15. R. 2. St. 13. R. 2. 5 St. 15. R. 2. 3. they are forbidden to meddle 3 The processe which shal be awarded against the Iury The Processe against the Iurie to trie an issue in an appeale is commonly a Venire facias Habeas corpora and Distringas as it is vsed in other actions sauing in the Kings Bench 27. H. 6. 10 for by the custome of that Court the first processe against the Iurie is an Habeas corpora and after a Distresse without suing a Venire facias And some say that in the K. Bench they vse to haue no Habeas corpora at the first day but a Venire facias and then a Distresse leauing out the Habeas corpora The processe which is to be awarded against the Iury Processe in an Appeale not in an In is for the most part intended in an appeale for in an Indictment though they may graunt processe against the Iury yet it is not vsed by the Iustices of Gaole deliuerie Fit Enquest 55 because they doe take the pannell which is returned by the Shirife without making any precept vnto him for that they giue a generall commandement to the Shirife before their comming to cause the Countrie to appeare before them But so do not Iustices of Oyer
take reward of any who will fréely licence all persons to prosecute their right giue full eare to the widowes complaint further the cause of the orphan and fatherlesse and suffer none that hée can helpe to receiue wrong who will not feare the countenance of the mightie nor disdaine the basenesse of the poore whom neither hatred fauor or priuat affection will moue but without respect of persons will yéeld to each wight that which his cause requireth who will remember and neuer forget that God hath endowed him with knowledge and vnderstanding Ecclesiast 17 that he hath made a couenant with him to shew him what true iustice and iudgement is that all his actions bée continually in Gods sight and that euerie moment from heauen the King of Kings doth behold them And finally who duely respecting both the commissions which he hath receiued from God and his prince will so indifferently temper iustice with mercie towards the poore prisoner standing trembling before him at the barre as he will hope for mercie when himselfe shall make his last and great account before the God of iustice and mercie 2 Whereas diuers antient Prerogatiues and Authorities of iustice appertaining to the Crown of this Realm were seuered and taken from the same by sundrie gifts of the Kings Progenitors Kings of this Realme to the great diminution of the royall estate of the same and to the hindrance and delay of iustice St. 27. H. 8. 25. for the reformation whereof by a Statute made Anno 27. H. 8. it was enected That no person or persons of what estate condition None shall make Iustices but the King or degree soeuer they bée shall haue any power or authoritie to make any Iustices of Eyre Iustices of Assise Iustices of Peace or Iustices of Gaole deliuerie but that all such Officers and Ministers shall bée made by Letters Patents vnder the Kings great Seale in the name and by authoritie of the King and his heires Kings of this Realme in all Shires Counties Counties Palantine and other places of this Realme Wales and the Marches of the same or in any other his Dominions at their pleasure and wills in such maner and forme as Iustices in Eyre c. bée commonly made in euerie Shire of this Realme Any graunts vsages Acts of Parliament or other thing notwithstanding The Iudge vpon the arraignment of a Péerâ—e of the Realme 3 When a Péere of the Realme and Lord of the Parliament 1. H. 4. 1â— 13. H. 8. 13. 10. Ed. 4. 6. is to be arraigned vpon any Treason or Felonie whereof he is indicted and whereunto he hath pleaded not guiltie the King by his letters patents shall assigne some noble and sage Lord of the Parliament to bee high Steward of England for the day of his arraignement who before the same day shall make a Precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him xviij or xx Lords of the Parliament vpon the same day c. S. Triall 2. 4 Where Treasons Misprisions of Treasons Murders Manslaughters and other malicious strikings by reason whereof blood hath béen shed against the K. peace were often committed within the limits of the Kings palace or house or other houses where his Maiestie was abiding in his royall person which offences when they be done be best knowne by his Highnesse Officers of his houshold and by his seruants of his Checke roll And if his Maiesty shall happen to remoue from such his palace or house or other house where such offences were done before the tryall and determination thereof then such offences might not lawfully be tryed heard and determined by and before the sayd Officers but bée remitted to bée tryed and determined by the order of the Common law by reason whereof the punishment of the sayd offendors in such cases hath beene long time delayed and sometime their offences forgotten and not remembred and so they escaped vnpunished For the redresse whereof by a Statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 12. That all Treasons Misprisions of Treasons Murders Manslaughters Bloudsheds and other malitious strikings by reason whereof bloud shall be shed against the Kings peace which shall bée done within any the Palaces or houses of the King or his heires or within any other house or houses at such time as his Maiestie shall bée then abiding in his royall person shall bee inquired of tryed heard and determined within any of the Kings houses or other house where his Maiestie shall bée abiding Iudge of treasons and felonies committed in the K. house before the Lord Steward of the Kings houshold and in his absence before the Treasorer and Comptroller of the K. houshold and Steward of the Marshalsey for the time beeing or two of them whereof the Steward of the Marshalsey to bee one by vertue of their offices without any Commission or other authoritie to them giuen And whether the King shall bée remooued from the house where such offences shall bée done or not before they be inquired of heard and determined yet such offences shall be inquired of tryed heard and determined before the Kings Officers of his houshold before named or two of them by the Inquisition and verdict of his houshold seruants in his Checke roll at such Palace or house where his Maiestie shall bée at any time abiding in manner and forme as is hereafter expressed The two Clerkes Comptrollers Clerkes of the Checke and Clerkes Marshals for the time being of the K. houshold or one of them vpon a Precept to them or any of them made by the Lord Steward or in his absence by the said Treasorer and Comptroller of the Kings houshold and the said Steward of the Marshalsey or by two of them whereof the sayd Steward of the Marshalsey to be one shall haue power to summon warne and returne the names of twentie foure persons being yeomen officers of the Kings sayd houshold in the sayd Checke roll to inquire of such Treasons Misprisions of Treasons Murders Manslaughters and other malitious strikings by reason whereof bloud shall bée shed against the Kings peace before the sayd Lord Steward and in his absence before the sayd Treasorer Comptroller and Steward of the Marshalsey or before two of them at the least whereof the Steward to bée one And it shall bee lawfull to the sayde Lord Steward and in his absence to the sayd Treasorer Comptroller and Steward of the Marshalsey aforesayd or two of them whereof the sayd Steward to bée one before whom such Returnes shall bée so made as is aforesayd to cause such number of the sayd foure and twentie persons so returned aboue the number of twelue persons as to him or them shall séeme expedient to inquire of such Treasons Misprisions of Treasons Murders Manslaughters or other malitious strikings by reason whereof bloud shal bée shed against the Kings peace
Leges Aluredi cap. 7. That if any man did strike or draw a weapon of iron to strike in the Kings pallace the King might it he pleased put him to death 29 Because they which vpon the Kings commaundement do come to his councell or vpon his summons doe resort to his Parliament doe make their repaire thitherto further the wealth and peace of the Realme it hath béen therfore thought reason that during the time of the said councel Parliament they should not be depriued of that peace which they endeaour to procure to others and themselues Assault vpon one which cōmeth to the Parliament Wherefore by a Statute made Anno 11. H. 6. Stat. 11. H. 6. 11. it was ordeined That if any assault or fray be made vpon any Lord Spirituall or Temporall Knight of the Shire Citizen or Burgesse which commeth to the Parliament or to the Kings Councell by his commaundement and there being and attending then Proclamation shall be made in the most open place of the Towne where the fray was made by thrée seuerall dayes that the partie which made such affraye or assault shall yéeld himselfe in the Kings Bench within a quarter of a yeare next after the Proclamation made if it be in the Terme tyme or otherwise at the first day of the Terme following the said quarter And if he doe not he shall be attainted of the deede and pay to the party grieued his double dammages to be taxed by the discretion of the Iustices of the same bench or by the inquest if it be needfull and shall make fine and ransom at the Kings pleasure And if he come and be found guiltie by inquest by examination or otherwise of such affray or assault then he shall pay to the partie grieued his double dammages found by the inquest or to be taxed by the discretion of the said Iustices and make fine and ransom at the Kings pleasure Assaulting the seruant of a Parliament man And by the Statute made Anno 5. H. 4. it was enacted St. 5. H. 4. 6. That he shall haue the like punishment which maketh assault or fray in the Parliament tyme vpon any meniall seruant of any Knight of the Parliament Citizen Burgesse c. which doth come to the Parliament with his master The libertie of the Clergie as a conuocation And by the Statute of Anno 8. H. 6. it was prouided St. 8. H. 6. 1. That al the Clergie which be called to the conuocation by the Kings writ and all their seruants and familiars shall fully vse and enioy such libertie or defence in comming tarying and returning as the great men and Commons of the Realme haue or are wont or ought to enioy which are called to the Parliament 30 Séeing the wealth and peace of the Realme doth chiefely consist in the due execution of Iustice which cannot be ministred without méete persons and places ordeined therefore for that cause the Law hath specially prouided that those persons and places which be designed to the same Administration of Iustice shall be so guarded and protected from force and violence offered vnto them or in them that shee hath inflicted déeper and more greiuous punishments to those who shall breake or disturbe the peace in the presence of those Magistrates or in those places than to them who shall breake the peace in the Kings own pallace where he is in person abiding or in the Parliament time ordeined for the making of Laws Assaulting a Iudge or Iuror And therefore it hath bene adiudged 22. Ed. 3. 13. That if one draw his sword to strike a Iustice assigned sitting in place of iudgement and be thereof found guiltie he shall forfeite his lands and chattels and haue his right hand cut off And likewise if one in the presence of the Iustices doe strike a Iuror he shall forfeite his lands and goods haue his right hand striken off and be committed to perpetuall prison And the same Law is if one of the Kings Iustices assigned doth arrest any person which hath made a fray before him and a straunger will rescue that prisoner whereby he doth escape in this case as well the prisoner as he that made the rescous shall be disherited and be perpetually imprisoned for that the attachment of such a Iustice is the Kings owne attachment in the construction of the Law Striking in time or place of Iustice And if one doe strike an other in Westminster Hall Fitz Cor. 280. 2. 3. P. M. Dy. 188. during the time that the Kings Courts do sit hee shall forfeite to the King his lands and goods haue his right hand cut off and bee committed to perpetuall prison 4. H. 7. 2. 31 In an action of Trespas of assault and batterie the defendant pleaded Arresting by watchmen that there were diuers felonies committed in those parts where he dwelt and he being watching in his house came into the high Stréete where the plaintife was at eleuen of the clocke in the night and the defendant came vnto him and laid his hands in peaceable maner vpon him to sée his face and when he perceiued that he was a true man he left him departed which was the same assault and batterie And this was allowed to be a good iustification for by the statute of Winchester watchmen may arrest Nightwalkers and also may appose them from whence they come and what they be but they must be such watchmen as be appointed by the Towne And so euery man may arrest Nightwalkers for it is for the good of the Common wealth The same law is in an action of Trespas brought of the assault and batterie of his seruant 4. H. 7. 18. 5. H. 7. 5. 2. Ed. 4. 8. whereby he did loose his seruice 3. daies and the defendant pleaded that A. was robbed at midnight of goods to the value of xl s̄ whereupon the said A. came to the Constable and prayed him to search for suspicious persons and to apprehend and arrest them and accordingly he did search and found the same seruant walking suspiciously in the stréete in the night and therefore he would haue arrested him but the said seruant fled and would not yéeld to the arrest and the defendant by the Constables commaundement pursued and tooke him This was adiudged a good plea in barre for when a felonie is committed the Constable or any others may arrest suspitious persons and if any that is arrested will not yéeld but assault him or them that do arrest him they may iustifie the beating of him for that he doth resist the peace and iustice of the Realme when he doth forciblie striue to flie and not to be iustified by it 30. Ed. 3. 4. 29. Ass p. 63. 28. Ed. 3. 92. 6. H. 4. 7. 32 If a man be assaulted and beaten Trespas for batterie before outlawrie and then be outlawed in an action of Trespas and after doth purchase his
persons vnlawfully assembled Then euery person which so being able and required doth willingly and obstinatly refuse so to doe shal suffer imprisonment for one yeare without baile or mainprise And as in al the cases aforesaid euery able person is bound vpon request to assist the Iustices shirifes other the Kings officers to pursue apprehend arrest and imprison Manquellors robbers felons or other disturbers of the peace and so to do his whole endeuor to be a conseruator of the peace of the Realme Euerie person must assist to execute the K. Writ In like sort is euery able person bound by the common law and by the Stat. of Westm̄ 1. Westm̄ 2. to be attendant vpon the Shirife St. 3. E. 1. 17. S. 13. E. 1. 39. or vndershirife in the execution of the kings writs and by that meanes to be a supporter of the justice of the Realme These offēces punishable in the Starre Chamber 86 Menaces assaults batteries imprisonments and maihems committed by some persons to some persons at some times in some places in some manner forme sort and with some circumstances besides the penalties aforesaid inflicted vpon the offendors therein are also punishable in the Kings high Court of the Starre chamber as other offences hereafter mentioned be as it doth more at large appeare in Oppressions 35. ¶ Of Riots Routs vnlawful and rebellious Assemblies RIots Routs The enormitie of Riots vnlawfull Rebellious assemblies haue bin so many times pernitious fatal enemies to this kingdom the peace tranquillity thereof haue so often shaken the foundation and put in hazard the very forme and state of gouernment of the same that our lawmakers haue béen enforced to deuise from age to age one law vpon an other one stat after another for the repressing punishing of them haue endeuoured by all their wits to snib the sprouts quench the very first sparkes of them as euery man may easily perceiue there was cause thereof who will looke back and call to his remembrance what that small Riot begun at Dartmouth in Kent in the raigne of King Richard the second betwéen the collector of a subsidy and a Tyler and his wife about the payment of one poore great did come vnto which being not repressed in time did grow to so great a rebelliō that after it put in hazard the life of the K. the burning of the Citie of London the ouerthrow of the whole Nobility gentlemen and all the learned of the land and the subuersion of this goodly Monarchy and forme of gouernment Or if they will call to mind the small Riot or quarrell begun in the raigne of King Henry the sixt between a Yeoman of the gard and a seruingman of Richard Neuils Earle of warwick which so farre increased for want of restraint that it was the roote of many wofull tragedies and a meane to bring to vntimely death first Richard Plantagenet Duke of Yorke proclaymed successor to the Crowne and the chiefe pillar of the house of Yorke and after him King Henry the sixt and Prince Edward his sonne the heires of the house of Lancaster and to ruinate with the one or the other of them most of the Péeres great men and gentlemen of the realme besides many thowsands of the common people West 1. 3 E. 1. 32. Sta. 7. Ed. 1. St. 13. E. 1. 6. And therefore King Edward the first did well ordaine That no Shirifes shall suffer Barretors or maintainers of quarrels in their Counties And that to all parliaments Treatises and other assemblies each man shall come peaceably without any armor and that euery man shall haue armor in his house according to his ability to kéepe the peace And King Edward the third prouided Statutes ordained to preuent forces or Riots that no man shall come before the Iustices St. 2. E. 3. 3. St. 5. E. 3. 14. nor goe or ride armed And that suspected lewd and riotous persons shall be arrested and safely kept vntill they be deliuered by the Iustices of Gaole deliuery St. 34. E. 1. 3. Sta. 2. R. 2. 6. And that Iustices of peace shall restraine offendors riotors and all other Barretors and pursue take and chasten them according to their Trespas and offence Sta. 5. R. 2. 6. St. 15. R. 2. 2 St. 7. R. 2. 13 King Richard the second did prohibit Riots Routs and forcible entries into lands that were made in diuers counties and partes of the Realme And that none from thenceforth should make any Riot or Rumor And that no man shall ride armed 20. Rich. 2. 1 nor vse Launcegaies And that no laborer seruant in husbandry or Artificer St. 12. R. 2. 6 or victualer shall weare any buckler sword or dagger And that all the Kings officers shall suppresse and imprison such as make any Riots Routs St. 17. R. 2. 8. or vnlawful assemblies against the peace King Henry the fourth enacted That the Iustices of peace the Shirife shall arrest those which commit any Riot Rout or vnlawfull assembly shall enquire of them and record their offences St. 13. H. 4. 7 King Henry the fift assigned commissioners to enquire of the same Iustices Shirifes defaults in that behalfe St. 2. H. 5. 8. and also limited what punishment offendors attainted of Riot should sustaine King Henry the seauenth ordained Sta. 19. H. 7. that such persons as were returned to enquire of Riots should haue sufficient fréehold or copihold land within the same Shire And that no maintenance should hinder their Inquisition And in the Raigne of Quéene Mary Sta. 1. M. 12. there was a necessary Statute established to restrain and punish vnlawfull and rebellious assemblies raised by a multitude of vnruly persons to commit certaine violent forcible and Riotous acts 2 As the said Lawes Statutes were deuised in seueral ages by the wisedom of the Realme to enquire of and restraine Riots Routs vnlawfull and rebellious assemblies and to checke violences and forces before they should grow to a head So haue our prouident forefathers erected the most honorable Court of Starre chamber The Court of Starre chambers authoritie to punish Riots c. to examine and punish those and other offences when they breake out to extremities viz. to great and haynous Riots or such like enormities thereby to kéepe euery person in awe and so the whole Realme in peace As appeareth by the Statute of Anno 3. H. 7. whereby it is inacted That the Chauncellour and Treasorer of England for the time being and the President of the Kings Councell St. 3. H. 7. 1. Stat. 21. H. 8. 22. and the kéeper of the Kings priuy seale or two of them calling to them a Bishop and a Temporall Lord of the Kings most honorable priuy Councell the two chiefe Iustices of the K. Bench and common place for the time being or other two Iust in their absence vpon bill or information put to
maintaine the suit and so may A. for either of them hath interest in this debt and one of them may aid assist and maintaine the other to recouer his debt against C. in respect of their seuerall interests in the same debt But if in this case A. had promised to B. but part of this debt to haue prosecuted and maintained this suit then it had beene Champertie and vnlawfull maintenance in B. And the same law is 34. H. 6. 30. if one man be bound by Obligation to pay another man xx l. to the vse of a third man the Obligée and hee to whose vse the Obligation was made may both meddle in the suit of this Obligation 27 And so it is in goods for he that hath any propertie title Maintenance in respect of his title to goods or lawfull possession in goods 39. H. 6. 20. may maintaine a suit that is prosecuted against another touching the same goods As B. brought an action of Debt against A. in London and the Sherife returned that A. had nothing c. Wherupon at the plaintifes surmise certain goods of A. were attached in the hands of I. according to the custome of the said Citie and a Scire facias was awarded against the same I. to answer for those goods in which A. did maintaine the same I. in nominating vnto him a learned man in the law to whom by his aduice he went for his counsell and this was awarded maintenance iustifiable for that the propertie of the goods fo attached in the hands of I. were and did continue in the said A. Maintenance in detaing of a writing deliuered in trust So it is if one man doe deliuer a déed or other writing to another to be kept if a straunger will bring an action of Detinue against him to whom the same was deliuered the partie who deliuered that writing may lawfully maintaine him in that suit for the interest hee hath in the same writing And yet the recouerie of that writing would not haue bound him that did deliuer it but hée might haue had his action for the same against him that did recouer it Maintenance in respect of his ioynt interest with others 28 As euerie person may lawfully maintaine any suit that shall be prosecuted which concerneth his priuat and particular land lease rent debt or goods so may he maintaine a suit touching any land or other thing which hée hath ioyntly or in common with others 18. E. 4. 2. As the Parson of a Church brought an action of Trespasse against one of his Parishioners for digging of his ground and spoyling of his grasse Whereunto the defendant pleaded That the place where the Trespasse was supposed to be done is a Churchyard consecrate by the Bishop and that he and all those who are inhabitants in the same Parish haue vsed to haue their Sacraments and buriall for their dead there And that one of the inhabitants of the same Parish dyed and hee with others brought his bodie to the Church and after made a graue for him in the same Churchyard and there buried him which is the same digging whereof the plaintife hath conceiued his action Whereupon they were at issue In this case it was agreed by all the Iustices that euerie inhabitant of the same Parish may lawfully giue euidence and otherwise maintaine this issue though they be not parties thereunto for euerie of them hath the like interest in the Churchyard Maintenance by all the inhabitants of a parish as the partie to that suit And the same reason and law seemeth to be if there be a suit commenced betweene one or more inhabitants of a village Hamlet or Parish and some other person or persons for a common or way or for the digging of a pit of stone marle grauell morter sand c. vsed or claimed to belong or of right to bee due to the inhabitants of the same Village Hamlet or Parish after issue ioyned touching the right or title of the same common way or pit the residue of the inhabitants of the said Village Hamlet or Parish may aide and assist their neighbour or neighbours partie to that issue and it is lawfull maintenance for it tendeth to the benefit or preiudice of all the said inhabitants and is in a sort their owne case Maintenance of a poore man in his suit 29 In a Writ of Maintenance the plaintife supposed that the defendant did maintaine one A. in an action which the plaintife brought against the sayd A. Whereunto the defendant pleaded That the same A. was a poore man 32. H. 6. 35. 21. H. 6. 15. and had nothing to defend himselfe in the suit which the plaintif had commenced against him and that the defendant of his almes gaue him xx s. which is the same maintenance This was allowed a lawfull maintenance and iustifiable for any man to doe for whereas vnlawfull maintenance is in case when a man doth maintaine a suit to haue the whole or parcell of the land 9. H. 6. 64. or thing in question or to haue some other consideration to further or vphold that suit or where a man hauing nothing to do nor colour to meddle yet wil vndertake for euill will to maintaine that cause in question this giuing mony to a poore man to defend his right is not to either of the intents aforesaid but bestowed vpon a charitable disposition to search out truth and further the execution of iustice which appeareth by the stat of 11. H. 7. wherin the king and the whole parliament willing indifferent iustice to be ministred according to the common laws as wel to the poore as to the rich and perceiuing that the poore were not of abilitie to sue according to the law of the realme for the redresse of their iniuries and wrongs ordained that the king himselfe the L. Chancellor and some of each profession towards the law should in a sort aid and assist them the words of which stat be these St. 11. H. 7. 12 viz Euerie poore person which shall haue cause of action against any other shal haue by the discretion of the Chancellor Proces counsellors and Atturneyes assigned to aid the poore writs originall writs of Subpena according to the nature of his cause nothing paying to the K. for the seales of the same nor to any person for the writing of the same writs And the said Chancellor shall assigne such of the clerkes which shal vse the making and writing of the writs to write the same readie to be sealed and also learned Counsell Atturneyes for the same without taking any reward therefore And after the said writs be returned if it bee before the King in his Bench the Iustices there shal assigne to the same poore person counsel learned by their discretions which shall giue their counsell nothing taking for the same And likewise the Iustices shall appoint Atturneyes for the same poore person all other
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
of England for the time beeing and offer to trauerse the said indictment or Appel whereupon the said Outlawrie shal be pronounced then he shal be receiued to the said trauerse being thereupon found not guiltie by verdict of xij men he shal be cleerely discharged of the said Outlawrie and of all penalties and forfeitures by reason of the same as though no such Outlawrie had bin made And it is to be noted h. 12. El. Dyer 287. that the foresaid two Statutes doe extend to offendors in any manner of Treasons by the Common law or Statute and not to those onely which were declared to be Treasons by the Statute of 25. Edw. 3. 32 For the spéedie triall and punishment of such persons as shall commit any manner of Treasons within the Principalitie of Wales and the Marches of the same or elsewhere within the Kings dominions where his originall Writs in the Chauncerie of England commonly runne not by a Statute made Anno 32. H. 8. it was enacted That all such Treasons and Misprisions of Treasons as is aforesaid Triall of treasons committed in wales shall be presented St. 32. H. 8. 4. and tried by the oathes of twelue men inhabiting within any such Shires and before such commissioners as the King from time to time in such cases shall assigne and appoint by his Commission or Commissions of Oyer Determiner in like manner forme as if such Treasons or misprisions of treasons had bin done and committed within such of the said Shires into the which the said Commissions of Oyer and Determiner shall bée directed as is aforesaid And all Presentments Trials Processes Iudgements Executions and forfeitures hereafter to be had made or done by vertue of such Commissions shal be good and effectuall in the law to all purposes Any graunt custome or vsage to the cōtrarie notwithstanding c. After that by the Statute made an̄ 1. 2. P. M. it was enacted That all trials hereafter to be had St. 1. 2. P. M. 10. awarded or made for any Treason shal be had and vsed onely according to the due Order and Course of the common law of this Realme not otherwise Quaere whether this Statute of 1. 2. P. M. doth repell or take away the force of the before rehearsed Statute of 32. H. 8. St. 33. H. 8. 20. 33 By a statute made an̄ 33. H. 8. it was established The force of attainder of treason by the common law That if any person or persons shal be attainted of high Treason by the course of the common laws or statutes of this Realme in euery such case euery such attainder by the cōmon law shal be of as good strēgth value force effect as if it had bin done by authoritie of Parliament And the king his heires and successors shall haue as much aduantage by such attainder as well of vses rights entries conditions and possessions reuersions remainders and all other things as if it had béene done and declared by authoritie of Parliament and shal be deemed and adiudged in actuall and reall possession of the lands tenements hereditaments vses goods chattels and all other things of the offendors so attainted which his Highnesse ought lawfully to haue and which they so béeing attainted ought or might lawfully loose and forfeit if the attainder had béene done by the authoritie of Parliament without any office or inquisition to be found of the same Any Law Statute c. notwithstanding Sauing to all and euery perfect and persons and bodies politique and their heires assignes and successors and euery of them other than such person and persons which shall be attainted of high Treason and their heires and assignes and euery of them and all and euery other person and persons claiming by them or any of them or to the vses of any of them after the said Treasons committed all such right title vse possession entrie reuersions remainders interests conditions fees offices rents annuities commons leases and all other commodities profits and hereditaments whatsoeuer they or any of them should might or ought to haue had if this Act had neuer bin made 34 Because through corruption or negligent kéeping the Records of attainders of Treasons happen to be many times impaired blemished or otherwise to be defectiue St. 29. El. 2. therefore by a Statute made an̄ 29. El. it was ordained That no Record of attainder that now is of any person or persons No record of attainder shall be reuersed when the offendor is executed of or for any high Treason where the partie so attainted is or hath béene executed for the same Treason shall by the heire or heires of any such person or by any other whatsoeuer clayming in by from or vnder any such heire or heirs be in any wise hereafter reuersed vndone auoyded or impeached by any plea or for any error whatsoeuer But this Act shall not extend to any Record of attainder of or for any treason vpon which any writ of Error is now depending or which Record is already reuersed repealed or vndone by or for any error matter plea or cause whatsoeuer but the same shall be and remaine as vnto and against that partie at whose suit the same writ of Error is depending or at whose pursuit the same Record hath bin reuersed repealed or vndone his their heires and assignes onely as if this Act had neuer beene had or made Any thing in this Act c. M. 33. H. 8. Dyer 50. 35 If an offence be murder or other felonie by the common lawe Felony made treason by Statute and after the same offence shal be made treason by a Statute Then it is not punishable as murder and felonie but as Treason And no appeale will lie thereof and the Kings pardon of all Treasons will discharge the offendor therein An English traitor subiect to another prince 36 If an English man borne beeing indicted of high Treason P. 13. El. Dyer 300. will vpon his arraignment plead that he will not answer to the said indictment for that he is a subiect and seruant to a forraine Prince and not subiect to the King of England in this case the Court will record a Nihil dicit and he shall haue such iudgement as is vsed in cases of Attainder of Treason An alien borne committeth treason 37 If an alien borne doe commit high Treason in England in the time of peace betwéen England and that Nation where the same alien was borne P. 3. 4. P. M. Dyer 140. H. 33. H. 6. 1 he shal be indicted and arraigned of high treason and shall haue iudgement according to his desert But if it were in the time of warre betwéene England and that nation where the said alien was borne then the alien shall be ransomed and not arraigned Ioyning the kings armes with his owne 38 An Earle of this Realme was attainted of high treason
a statute made Anno 1. Ed. 4. it was ordained That vpon all Indictments and Presentments which shall bée taken before any of the Shirifes of Counties for the time béeing their Vndershirifes Clerkes Baylifes or Ministers at their Turnes or Law-daies they nor any of them shall haue power or authority to arrest attach or put in prison or to leuy any fines or amerciaments of any person or persons so indicted or presented by reason or colour of any such Indictment or Presentment taken before them or any of them or to leuy or take of any such person or persons so indicted or presented any fine or ransome But the said Shirifes vndershirifes Baylifes or Ministers shall bring present and deliuer all such Indictments and Presentments taken before them or any of them in their Turnes or Law-daies to the Iustices of the Peace Indictments taken in the shirifes Turnt shal be deliuered to the Iu. of peace at their next Session of the Peace which shal be holden in the County or Counties where such indictments and presentments shal be taken And if any of the said Shirifes Vndershirifes Clerkes Baylifes or Ministers doe not bring deliuer or present all such indictments or presentments so taken before them and euery of them in their Turnes or Law-daies as is aforesaid to such Sessions of the peace before the said Iustices then the said Shirifes Vndershirifes Clerkes Baylifes and their Ministers and euery of them which shall faile of the bringing deliuering or presenting of such Indictments or Presentments shal forfeit to the king forty pounds so often as they or any of them shall doe the contrarie And the said Iustices of peace shal haue power and authority to award proces vpon such Indictments and Presentments as the Law doth require Proces vpon Indictments awarded by I. of peace and in such like manner as if the said Indictments and Presentments had bin taken before the said Iustices of Peace in the same County or Counties and also to arraigne and deliuer all person and persons so indicted and presented before the said Shirifes Vndershirife their Clerkes Baylifes or Ministers or any of them in their Turnes or Lawdaies and to set such fine vpon euery person or persons indicted or presented of Trespas as it shall séeme good to their discretions And the Estreats of the same fines and amerciaments shall be inrolled and by Indenture deliuered to the said Shirifes Vndershirifs Clerks or Ministers or to some of them to the vse and profit of him which was shirife of the County at the time of the taking of such indictments or presentments And if any of the said Shirifes Vndershirifes Clerkes Bailifes or ministers shall cause to be arrested attached or put in prison or shall cause to be raised or taken any fine or ransome or leuy any amerciament of any person or persons so indicted or presented by reason or colour of any such indictment or presentment before him taken at his foresaid Turne or Law-day before they haue proces from the said Iustices of Peace or Estreats deliuered out of the said indictments or presentments so brought deliuered or presented vnto them then the shirifes which doe so shall forfeit an hundred pounds wherof the one moitie shal be imployed towards the expences of the kings house and the other to the party or parties that shal be endaÌ„maged And he or they shal haue an action of Debt at the common law and like proces as is vsed in an action of Debt at the common law wherein the defendants shal not be essoined wage their law Indictments in London nor haue any protection But this Ordinance shall not extend or be preiudiciall to the shirifes of the city of London touching indictments or presentments to be taken before them in the said city Neither shall this ordinance extend or be preiudiciall to any person or persons that haue graunt of any fines or other amerciaments by any letters patents of the king or of any of his progenitors or predecessors bearing date before the x. day of December next after the beginning of this Parliament being An. Dom. 1461. B This statute doth giue authority to Iustices of peace to award proces vpon all indictments taken in the shirifes Turne when they be brought and deliuered vnto them But yet it is alwaies intended That those Indictments shal be lawfull The shirife inquiring of things not inâ—uirable in 〈◊〉 Turne and containe matter whereof the Shirife hath iurisdiction in his Turne and power to make inquirie For if the Shirife in his Turne will make inquiry of the statute of Liueries 4. E. 4. 31. 8. E. 4. 5. or indict one who did feloniously rauish a woman or such other matters which be not inquirable in the shirifes Turne although he wil bring the indictments before the Iu. of peace and deliuer them according to the foresaid stat of 1. Ed. 4. yet they ought not to award proces vpon them for they were taken coram non iudice and so void 7 And for that Enquests were sometimes taken without being duly returned by the shirife of such persons as were outlawed before Iustices of Record and of some such as were fled to sanctuary for Felony or Treason to haue refuge by whom sometimes not only offendors were indicted but also seueral of the kings liege people not guilty by the conspiracie abbetment and false practise of others for their owne speciall aduantage and priuat gaine for the auoiding whereof there was a statute made Anno 11. H. 4. which doth enact St. 11. H. 4. 9 That no indictment shal be made by any such persons but by enquests of the kings liege people as it hath bin vsed in the time of the kings progenitors duly returned by shirifes or bailifes of Franchises without any maner of denomination before made to the said shirife or bailifes of Franchises by any person of the names of those who shal be impanelled by him Iurors in indictments shal be returned by the shirife without denomination vnlesse it be by the officers of the said shirifes or bailifes of Franchises knowne or sworne thereunto and other ministers to whom it appertaineth by the law of England to make the same And if any indictment be made in any point to the contrary the same shal be void reuoked and of no force According to this statute some haue béen discharged of their Indictments B. because certaine of the Indictors were before that outlawed of Felony This statute of Anno 11. H. 4. is altered by the next statute of Anno 3. H. 8. for so much onely as doth concerne denomination to be made by the Iustices 11. H. 4. 40. St. 3. H. 8. 12. for the reformation of Panels returned before them by the Shirifes when the said Iustices will haue the same Panels reformed But for all the residue it continueth in force 8 The whole authority of returning of Enquests to make Indictments without the denomination of
man in his owne defence Killing a man by mischance or in his owne defence or by misaduenture by the common Law shall not haue his clergy Br. Cor. 183 Neither shall he who committeth petite Larceny Petit larcenie haue his clergy and the reason is for that in those cases he shall not haue iudgement of death 19. H. 6. 47. Fit Co. 283 St. 25. E. 3.4 7 He which had offended in high Treason Offendors in Treasons by the common law should not haue had his clergy neither he which had offended in petit Treason vntill by the stat of An̄ 25. E. 3. pro Clero it was enacted That all Clerkes as well secular as religious which shal be from henceforth conuict before the secular Iustices for any manner Treasons and Felonies touching other persons thē the King himselfe or his royall Maiesty shall fréely haue and enioy the priuiledge of holy Church and shal be without any impeachment or delay deliuered to the Ordinaries demaunding them It appeareth by the statute of Anno 4. H. 4. St. 4. H. 4. 3 That the Clergie promised to the King in Parliament that a Clerke conuict for Treason touching the King himselfe or for being a common théefe notoriously detected and deliuered to the Ordinary shall not make his purgation 8 He that had confessed a felony Confession of felony could not haue had his Clergy by the common Law vntill the stat of An̄ 9. E. 2. St. 9. E. 2. 15 viz. Articuli Cleri was made Because after his confession he could not purge him of that offence and therefore it was in vaine to haue him deliuered to the Ordinary to be tryed of that offence But the spirituall men at that time intended that the same confession of a Clerke before a Temporall Iudge was void for that he could not be Iudge of a Clerke and therefore they obtained remedie by the said articles in two speciall cases viz. Abiuration and Approuement and by the equitie of the said statute and in fauour of life it is now permitted in all other cases of attainders Clergy taken away by seueral statutes A Cutpurse 9 By the statute of An. 8. Eliz. St. 8. El. 4. it is enacted That no person or persons which shal be indicted or appelled for felonious taking of any money goods or cattels from the person of any other priuily without his knowledge in any place whatsoeuer and thereupon found guilty by verdict of xij men or shall confesse the same vpon his or their arraignment or will not answer directly to the same according to the lawes of this Realme or shall stand wilfully or of malice or obstinatly mute or challenge peremptorily aboue the number of xx or shal be vpon such indictment or appeale outlawed shall be admitted to haue the benefit of his or their clergy but be excluded therof and shall suffer death in such manner forme as they should if they were no clerks Forging of writings 10 By the stat of An. 5. El. St. 5. El. 14. it is established That if any person or persons being conuicted or condemned of any of the offences specified in that Statute prouided against the forging of euidences writings by any of the waies or meanes in the same statute limitted shall after any such his or their conuiction or condemnation eftsoones commit or perpetrate any of the said offences in the forme therin mentioned that then euery such second offence or offences shal be adiudged felony the parties thereof conuicted or attainted shall suffer death losse forfeiture of their goods cattels lands tenemēts as in cases of felony without hauing any aduantage or benefit of Clergy or Sanctuary S. Forging c. 8. and Felonies by Statute 27. 11 By the statutes of An̄ 25. H. 8. An̄ 5. El. St. 25. H. 8. 6 St. 5. El. 17. it is enacted That if any do commit Buggery Buggery with mankind or beast the same offence shal be adiudged felony and that no person offending in the same shal be admitted to his clergy S. Felonies by Stat. 11. 12 By the statute of An̄ 5. El. St. 5. El. 20 it is enacted That euery person and persons of the age of xiiij yeares or aboue calling himselfe an Egyptian Egyptians or béeing in company with them or counterfeiting or disguising himselfe by his apparell spéech or other behauior like vnto the vagabonds calling themselues Egyptians and so doth continue at one or seuerall times by the space of a moneth shal be adiudged a felon and shall loose the priuiledge and benefit of Sanctuary and Clergy S. Felonies by Stat. 15. Relieuing of a Iesuit or Priest 14 By the stat of Ann̄ 27. El. St. 27. Eli. 2. it is enacted That euery person which shall wittingly willingly receiue relieue comfort aid or maintaine any Iesuit seminary priest or other priest deacō or religious or ecclesiastical persō whatsoeuer being borne within this realme or any the dominions thereof heretofore sithence the feast of S. Iohn the Baptist an̄ 1. Reg. El. ordained made or professed or hereafter to be made ordained or professed by any authoritie or iurisdiction deriued from the Sea of Rome being at liberty or out of hold knowing him to be a Iesuite Seminarie Priest or such other Priest Deacon or religious or ecclesiasticall person as is aforesaid shal for such offence be adiudged a felon without benefit of Clergy and shal suffer death loose and forfeit as in case of one attainted of felony S. Felonies by Stat. 22. 15 By the Statute of Anno 18. Eliz. St. 18. El. 6. it is ordained That if any person or persons shall fortune to commit or doe any manner of felonious Rape Rape Rauishment or Burglary Burglary or shall vnlawfully and carnally know and abuse any woman child vnder the age of tenne yeares and shal be therof found guilty by verdict be outlawed or confesse the same vpon his arraignment he shall suffer paines of death and forfeit as in cases of felony without any allowance or priuiledge of Clergy 16 By the statute of An̄ 3. H. 7. St. 3. H. 7. 2 it is enacted Taking a woman against her will That if any person or persons shall take any maid widow or wife which hath any lands or goods or is heire apparant to her auncestor against her wil vnlawfully such taking procuring and abotting to the same and also receiuing wittingly the same woman so taken against her will knowing the same shal be felony and such misdoers takers and procurators to the same shal be reputed taken as principall Felons But this act doth not extend to any person taking a woman onely clayming her as his ward or bondwoman Ward Bondwoman And by the stat of 39. El. St. 39. El. 9. it is ordained That euery such person persons as shal be conuicted or attainted of or for any
in any dwelling house or houses or to do or commit any robberie in or néere any highway in the Realme of England or in any other the Quéenes Dominions or to commit or doe any robberie in any place within the Marches of England against Scotland or wilfully to burne any dwelling house or any part therof or any barne then hauing corne or graine in the same then euery such offendor and offendors and euery of them being outlawed of the same or being thereof arraigned and found guiltie by the order of the law or being otherwise lawfully attainted or conuicted of the same offence or being arraigned thereof do stand mute of malice or froward mind or doe challenge peremptorily aboue the number of xx persons or will not answer directly to such offence shall not haue the benefit of his or their clergy Euery Lord and Péere of the realme hauing place and voyce in Parliament vpon euery indictment for any of the offences aforesaid shall bee tryed by his Péeres A man was indicted of the robberie of another in his mansion house P. 2. Eliz. Dyer 183. he being in his house and put in feare And another was indicted for that he did feloniously before the sayd robberie procure and counsell the principall to commit the sayd robberie in which indictment of the accessorie this word malitiously was omitted Malitiously omitted in the indictment for the default of which word this accessorie had his clergie for this word malitiously shall haue relation to all the aforesaid offences of Petit treason murder robberie and burning of houses 30 By the before specified Statute of Anno 1. Ed. 6. St. 1. E. 6. 12 Where a Lord of the Parliament shal haue the benefit of his Clergie among other things it is enacted That in all and euerie case and cases where any of the kings subiects shall and may vpon his praier haue the priuiledge of Clergie as a Clerke conuict that may make purgation in all those cases and euerie of them and also in all and euerie case and cases of felonie wherein the priuiledge or benefit of Clergie is restrained excepted or taken away by this Statute wilfull murder and poysoning of malice prepenced only excepted the Lord and Lords of the Parliament S Br. 24. and Péere and Péers of the Realme hauing place and voice in Parliament shall by vertue of this Act of common grace vpon his or their requests and prayer alledging that he is a Lord or Péere of this Realme claiming the benefit of this Act though he cannot read without burning in the hand losse of inheritance or corruption of his bloud be adiudged déemed taken and vsed for the first time onely to all constructions intents and purposes as a Clerke conuict which may make purgation without any further or other benefit of Clergie to any such Lord or Péer from thenceforth at any time after for any cause to be allowed adiudged or admitted Any law custome statute or other thing to the contrarie notwithstanding By this Statute a Lord of the Parliament shall haue the priuiledge of his Clergie where a common person shall not viz. for the breaking of a house by day or night or for robbing of any in the highway and in all other cases excepted in the sayd statute of Anno 1. Ed. 6. sauing in wilfull murder and poysoning But in all other cases wherein Clergie is taken away by any statute made sithence the sayd statute of Anno 1. Ed. 6. he is in the same degrée that a common and inferiour person is But the Court will not giue him the benefit of this statute if he doth not require it If a Lord of the Parliament doth confesse his offence vpon his arraignment or doth abiure or is outlawed for felony it séemeth that in these cases he may haue the benefit of this statute viz. his Clergie for that by the Statute of 18. Elizab. 6. hée nor any other need to make his purgation but shall bée forthwith deliuered out of prison by the Iustices sed quaere 31 In all the foresaid cases of wilfull murder breaking of houses The indictment must beē according to the statute robbing in or néere the highway buggerie stabbing and such like where a man is put out of his Clergie by statute it is necessarie that in the indictment mention should he made of the offence in such manner as the same offence is expressed in the statute P. 9. Eliz. Dyer 261. or otherwise the offendor shall haue his Clergie for if the indictment be onely murdrauit without adding ex malitia praecogitata the partie meant to be indicted of wilfull murder shall haue his Clergie and so of all the residue for his attainder or conuiction is vpon the matter contained in the appeale or indictment and if in the appeale or indictment no matter is contained which doth put him out of his Clergie then it cannot be sayd that hée is attaint or conuict of any matter contained in the Statute which should cause him to loose the benefit thereof And the Iudge is to haue speciall regard and consideration when those words be put into the indictment that they which do giue euidence do proue the same words well and substantially The words of the indictment to be proued as well as the principall fact and if they doe not the Iudge is to admonish the Iurie thereof viz. that there is no proofe of those words by the euidence and that therefore they are not bound to find them if they doe not know them of their owne knowledge Or otherwise for default of good examination the life and lands of any man may be lost by the malice of another which will put false words in an indictment that cannot be proued by euidence When Clergy shal be demanded 32 By the auntient law of the Realme if a Clerke of any order or dignitie had béene taken for the death of a man or other felonie or offence and imprisoned and the Ordinarie had demaunded him Bracton the temporall Iudge ought to haue deliuered him presently to the Ordinarie his Officiall or to some other by his warrant without inquiring of him viz. before his indictment Not to the intent that the Ordinarie should set him at libertie but kéepe him in prison vntill the offendor were purged of his cryme For it was then holden for law that the King could not kéepe him in prison whom hée could not iudge neither could hée disgrade any of his Clergie because hée could not admit any to his Clergie But because the Statute of Westminst 1. St. W. 3. E. 1 doth ordaine That they which bée indicted of Felonie in the Kings Court by the solemne othe of lawfull witnesses shall bée deliuered to the Ordinarie vpon his request according to the priuiledge of holy Church but yet in no manner without due purgation Fitz. Cor. 233. 386. 417. M. 40. E. 3 42. Therefore they that came after this Statute chaunged
of treason or felonie which graunting of Pardon is one of the most ancient and honourable prerogatiues that is annexed to the Imperiall Crowne of this Realme being an authoritie in a sort to reuiue a dead man and to continue him in life whom the Lawe adiudged to die And it is only granted vpon a good hope that the king hath of the amendment of the life of that subiect who hath offended his lawes and whose crime his owne conscience doth assure him that he may pardon notwithstanding his othe taken at his coronation which othe is that he will to the vttermost of his power cause equall and right iustice to be done in all iudgements and discretion in mercy and truth for as Bracton Bracton saith The King at his coronation The Kings oath at his coronation by an oathe taken in the name of Iesus Christ the sonne of God ought to promise his subiects thrée things The first that he will commaund and doe his whole indeuour during his raigne that true peace may be performed to the Church of God and all his people The second that he will by all meanes restraine euery kind of rapine and oppression The third that in all Iudgements he will commaund iustice and mercie to be obserued that by his mercifull dealing with others the God of mercie may take commiseration vpon him and that by his iustice all his people may enioy peace 2 Because authoritie to remitt and pardon Treasons Murders Manslaughters and other felonies with diuers others of the most ancient prerogatiues and authorities of Iustice appertaining to the imperiall Crowne of this Realme were seuered and taken from the saide Crowne by sundrie gifts of the Kings of this Realme to the great diminution and detriment of the royall estate of the same and to the hindrance and delay of iustifie For reformation whereof by a statute made Anno 27. H. 8. St. 27. H. 8. 25. it was enacted That no person or persons of what estate or degree soeuer they be shall haue anie power or authoritie to pardon or remit any treasons None but the king shal pardon treasons felonies c. murders manslaughters or felonies whatsoeuer they be nor any accessories to any treasons murders manslaughters or felonies or any outlawries for any such offences aforesaid committed done or diuulged by or against any person or persons in any parts of this Realme or Wales or the Marches of the same But that the King his heires and successors kings of this Realme shall haue the whole and sole power and authoritie thereof vnited and knit to the imperiall crowne of this realme as of good right and equitie it appertaineth any graunts vsages Acts of parliament or any other thing to the contrary notwithstanding 3 But because the Kings of this Realme haue not had that circumspection in graunting of pardons which Bracton doth thinke fit and haue béene many times deceiued in their grants by false suggestions and for that offendors in times past were greatly encouraged and lesse feared to offend in respect that pardons of manslaughters robberies felonies and other trespasses against the Peace were so easily graunted For the redresse whereof by a statute made Anno 2. Ed. 3. St. 2. Ed. 3. 2 it was ordained In which cases onely the K. may grant pardon of felonie c. That no such charters should be graunted but where the King may doe it by his oathe that is to say in case where a man doth kill an other in his owne defence or by misfortune which laide Statute was after rehearsed and confirmed by an other Statute made Anno 4. Ed. 3. St. 4. E. 3. 13 And also by another Statute made Anno 14. Ed. 3. St. 14. Ed. 3. 10. the effect of the same was rehearsed and confirmed and it was moreouer ordained That if any charter of pardon were from thenceforth graunted contrarie to the purport of the said Statutes that then the same should be accompted as voide 4 And though there be wordes large enough in the foresaide Statutes to make frustrate all those charters of pardon which be graunted against the forme of the same Statutes Non obstante in a pardon yet by putting into the Charters of pardon these wordes viz. Non obstante aliquo statuto actu ordinatione in contrarium edito the force of those Statutes be cleane taken away and not onely of those but also of all other in which this clause of Non obstante is inserted for it is a dispensation of the Statute and commonly put in euerie Letters patents But because the Kings of this Realme were oft times deceiued in granting of charters of pardon by the false and vntrue suggestion of others Therefore to auoide those abuses by a Statute made Anno 27. Ed. 3. St. 27. E. 3. 2 it was accorded That in euery charter of pardon of felonie The suggestion comprised in the pardon which shall be graunted at the suggestion of any person the suggestion and the name of him that maketh it shall be comprised in the same charter And if after the suggestion be found vntrue the Charter shall be disallowed and accounted nothing worth And the Iustices before whom such Charters shall be alleaged shall enquire of the same suggestions and if they finde them vntrue they shall disallow the Charters and procéede further as the Lawe requireth 5 Because the Commons did complaine in Parliament of the outrages mischiefes and dammages which did come to the Realme by treasons murders rauishments of women commonly done committed and the rather for that charters of pardon were too easily granted thereof and did desire the King that such charters of pardon might no more be granted in those Cases Whereunto the K. did answer that he would yéeld to their petition sauing the prerogatiue and regal authority which his progenitors before that time had And to the intent that the King would be certainely informed before of what offences he did graunt pardon Therefore by a Statute made Anno 13. R. 2. St. 13. R. 1. 1 Stat. 2. the King did graunt with the assent of the Parliament That no Charter of pardon shall be allowed before any Iustice for murder The offences shall be specified in the pardon for the death of a man slaine by awaite assault or malice prepensed treason or rape of a woman vnlesse the same murder death of a man slaine by awaite assault or malice prepensed treason or rape of a woman be specified in the same Charter And if a Charter of the death of a man be alleadged before any Iustice in which Charter it is not specified that hée of whose death any such is arraigned was murdered or slaine by awaite assault or malice prepensed the same Iustices shall enquire by a good Enquest of the visne where the dead was slaine if hée were murdered or slaine by awaite assault or malice prepensed And if they shall find that he was murdered or
slaine by await assault or malice prepensed the charter shal be disalowed and further therein shal be done as the Law requireth which saide stat was after confirmed by the statute of Anno 16. R. 2. St. 16. R. 2. 6 1. Ed. 3. 24 And therefore whereas if a man before this Statute had counterfeited the Kings great or priuy Seale and the King had pardoned him all felonies homicides robberies and other trespasses by the common Lawe his pardon should haue béene allowed and he discharged which sithence would not be allowed vnlesse the treason were specified in the charter of pardon 6 For that many common and notorious Théeues indited of seuerall felonies murders and rapes in diuers countries and vpon the same as well before the Kings Iustices as before the King himselfe being arraigned of the same felonies for the sauing of their liues did in times past become approuers to the intent that in the meane time by Brocage and great gifts bestowed vpon certaine persons they might purchase and obtaine their charters of pardon and then after their deliuerance became more notorious Théeues than they were before for the redresse whereof and to the intent to punish him with discredit and forfeture who pursueth such a charter there was a statute made Anno 5. H. 4. St. 5. H. 4. 2 which doth ordaine Sute for an Approuers pardon That if any man or woman doe desire or pursue or cause to be requested or pursued for any charter of pardon for any felon arraigned of felonie murder or rape which for the safegard of his life doth become an approuer then the name of him or her which pursueth such charter shal be put in the same charter making mention that the same charter is graunted at his request and instance And if he to whom the charter is granted after his deliueraunce becommeth a felon the same person who pursued for his charter shall forfeit a hundred pounds to be leuied to the Kings vse Pardon of the felonie but not of the attainder 7 If a man be attainted of felonie 9. Ed. 4. 28. 11. H. 4. 15 46. Fi. Cor. 124 S. Abiuration 15 and the King doth pardon him all feloniâ—s this is not sufficieÌ„t neither wil it auaile him because in the charter there is no pardon of the attainder As one abiured the Realme for the death of a man and returned againe without the Kings licence and beeing brought to the barre he pleaded the kings pardon and because it made no mention of his aâ—iucaâ—ion which was his attainder it was disalowed If the King do by Act of parliament grant a generall pardon of all felonies except burglarie Co. l. 6. 13 and an offendor is attainted of burglary he shal haue no benefit of this pardon for the offence of burglarie doth remaine notwithstanding the attainder thereof 〈…〉 8 If a man commit felonie and is attainted thereof 8. H. 4. 22. Co. li. 6. 13 if the King do pardon him the attainder and the execution this will not auaile him because the felonie doth yet remaine vnpardoned 22. Ed. 4. 7 28 29 H. 8. Dyer f. 34 9 If the king doe pardon two thrée A ioynt pardoÌ„ to two or thrée or moe men all felonies by them or any of them committed this will not auaile them because felonie is alwaies seuerall though the sequell of the Charter be seuerall yet it shall not make that which in the beginning of the Charter was ioynt to bee seuerall But it is otherwise if the beginning of the Charter had beene seuerall the sequell ioynt 3. H. 7. 15 10 If the King graunt to a man Grant to be quit of escapes of felons that he shal be quit of the escape of prisoners out of his prison beeing there for felonie or Treason yet this will not discharge him of voluntarie escape but onely of negligent escape for voluntarie escape is felonie and the King cannot licence a man to commit felonie but he ought to restraine him of the doing thereof 11. H. 4. 41. 11 Euery prisoner shall take aduantage of a generall pardon graunted by Act of Parliament A generall pardon by Parliament without pleading of it And the court shall giue him the aduantage thereof though he doth waiue and refuse the benefit of the same Act but that is to be intended where the act is general without any exception For if there be any persons excepted in the same pardon graÌ„ted by Act of Parliament 8. E. 4. 7 Pl. com 401 then he ought to plead that he is not any of those which is excepted and that he was not adherent to E. and so must plead to euery point and thing excepted in the said Act of Parliament to the intent to prooue himselfe enabled to enioy the benefit of the said pardon vnlesse in the said Act of Parliament there be mention made that euery person may take aduantage of it without pleading of it And if he that doth plead that pardon be of the same name that any of those is which is excepted in the pardon hee then must in pleading declare the same and shew that he is another man and not he which is excepted in the pardon or otherwise he shall come too late to plead it after And if he plead it before the Iustices in the countrey where the Kings atturney is not present the Iustices shall cause proclamation to be made that if any will speake for the King let him come forth c. 12 The partie whom it doth concerne ought not onely to plead the Kings pardon granted vnto him by his Charter without Parliament but hee must also shew it vnder Seale The Kings pardon must be sheÌ„wed vnder seale for that the custodie thereof belongeth onely to him and to none other And therefore though he will say that he was at another time arraigned of the same felonie at the Kings suit in such a countie where he pleaded the said Charter H. 11. H. 4. 41. and that was allowed which allowance is of Record yet that is no good plea without shewing the Charter But the court of fauour will respite the partie that pleadeth it to bring in the Charter at the day assigned 13 When a man doth plead the Kings pardon of any homicide robberie A writ of allowance of the Kings pardon felonie or other trespasse he ought also to bring with him a writ of allowance testifying that he hath found suretie according to the Statute of anÌ„ 10. Ed. 3. St. 10. E. 3. 3 which hath established That if the King doe grant to any person any Charter of pardon of any homicide robberie or felonie then he to whom the same is granted shall come within thrée moneths next after the making of the same before the Sherife and Coroners of the Countie where the felonie was done and shall find sixe good and sufficient mainpernors for whom the said sherife and
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
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
or any of them in their Turnes or Lawdayes And as of other felonies 3. H. 7. 5. 5. E. 6. D. 69 9. H. 4. 1. so I. of peace may inquire of murder Murder because wilfull murder is felony But Iust of peace cannot inquire of treason Treason for neither the before mentioned stat of 18. E. 3. nor the words of their commission do authorise them so to do The Lord of a Mannor Iudge in felonie 13 There be some that haue libertie of Soc and Sac Tol and Them Bracton de Corona cap. 35. 2. R. 3. 10. Infangthéefe and Outfangthéefe these in their own courts may giue iudgement of him who is found within their liberty possessed of any manifest theft as if he be hand hauing and back bearing and that Sathaber viz. he whose the goods be do pursue him Kel fol. 150 for vnlesse he be in possession of the goods though another doth pursue him as a théefe yet that Court Hundred or Wapentake cannot hold plea of such a theft nor make inquirie by the Countrey whether such a man which was not possessed of the goods bee culpable or not Neither shall any wage battell without possession It is called Infangtheefe Infangthéefe where a Theefe is taken possessed of goods stolne within any such Manor or Libertie who is commorant and dwelling within the same libertie and one of the said Lords owne people Outfangthéefe Outfangthéef is a théefe that is a stranger comming from some other place into the Mannor of the Lord who hath such a libertie and is there taken with the manoure And yet he that hath such a libertie cannot fetch one of his owne people who hath committed larcenie out of his libertie and bring him into his libertie and iudge him there according to his libertie for euery person must receiue the punishment of the law where he hath offended the law But he may giue iudgement as well against his own people as against strangers committing larcenie that be taken within his libertie 46. Ed. 3. 15 14. H. 4. 15 And in this libertie of Infangthéefe and Outfangthéefe and in waife and stray and wreck of the sea a man may prescribe but so he cannot do in goods of felons and fugitiues for they do belong to the Crowne and cannot passe without the Kings graunt Fitz. Prescription 65 14 The custome of some countrey is such A felon first executed and then iudged that if one hath committed burglarie or other felonie and he be pursued by huy and cry from towne to town and so taken flying he must be beheaded in the presence of the inhabitants of foure townes and so by the vsage of that countrey he is accounted a felon And this must be recorded in the Coroners roll and after the Coroner must present it before the Iustices and they will adiudge him a felon And so he must be first put to death and after iudged a felon FINIS ⧠The generall Titles of this Booke 1MEnace Assault Batterie Jmprisonment Maiheming 2 Riots Routs vnlawfull and rebellious Assemblies 3 Force and Forcible Entries and Forcible detaining of possessions 4 Forgerie 5 Periurie and Subornation of Witnesse 6 Maintenance Champertie Embracerie 7 Deceit Couin Collusion Fraud 8 Extortion Exaction 9 Oppression 10 Treasons 11 Homicides 12 Felonies by the common Law 13 Felonies by Statute 14 Principall and Accessorie 15 Breaking of Prison and Rescous 16 Escapes of Felons 17 Pursute by Huy and Cry 18 Appeales of Felony 19 Jndictments 20 Mainprise and Bayle 21 Confession of the offence 22 Approuer 23 Sanctuarie and Abiuration 24 Pleading not guilty 25 Triall of the plea of not guilty by Battell 26 Triall by Peeres 27 Triall by the Countrey 28 Challenges 29 Euidence 30 The Verdict 31 Clergie 32 The Kings Pardon 33 Standing mute or answering indirectly 34 Judgement and Execution 35 Forfeitures for Treason or Felony 36 Corruption of Blood 37 Restitution of stolne goods 38 Dammages in an Appeale 39 A Writ of Conspiracie 40 The Coroner and his authority and dutie in Felonies 41 Who shall be Judge in Treason and Felonie ⧠A briefe effect of euery Braunch or Chapter in this Treatise Menace Assault Batterie Imprisonment Maiheming Fol. 1. 1 THe euill fruits of menaces Menacers shal be imprisoned The enormitie of libelling and defaming 2 The differences of Menacing Assault and Batterie 3 The declaration in trespas of menacing A rebuke accounted a Menace or Assault 4 Menacing a seruant wherby he departeth out of seruice 5 Menacing a tenant whereby he departeth from his tenancie Menacing of a Lords Freeholder 6 Menacing which is iustifiable 7 Menacing by going or riding armed 8 Wearing of a priuie coat a Menace 9 Labourers shall weare no weapons to preuent Menaces 10 Assurances made by Menace 11 What is an assault What is a batterie 12 Iustifying of beating in his owne defence Barre in trespas of Assault and Batterie 13 Iustifying of beating in defence of others The mastâ—rs remedy for beating of his seruant 14 Batterie in defence of his goods Battery in defence of his land lease or way 15 Batterie in resisting of a Iustice of Peace 16 A Schoolemaster beateth his Sholler 17 A Master beateth his Prentice 18 Beating of a man that is franticke 19 Beating of one that will not yeeld to arrest 20 Beating of a seruant departing out of seruice Beating of a Ward 21 Commaundement of Batterie 22 Battery or hurting at some exercise or disport 23 Battery by whipping of a vagabond Punishments by the order of Law 24 Battery for disobeying of a writ or warrant 25 Arresting one in a Church that is doing diuine seruice 26 Disturbing of a Preacher in his Sermon 27 Chiding in a Church or Churchyard Smiting in a church or churchyard Drawing or smiting with a weapon in a Church or c. 28 Drawing of blood within the kings palace 29 Assaulting one which commeth to the Parliament Assaulting the seruant of a Parliament man The liberty of the Clergie at a Conuocation house touching assaults 30 Assaulting a Iudge or Iuror Striking in time or place of iustice 31 Arresting by watchmen 32 Trespas for a battery before Outlawrie 33 A man first indicted for batterie and after sued for the same 34 What imprisonment is Voluntary consent no cause of imprisonment 35 Imprisonment by the commandement of the king or his Iustices c. 36 Imprisonment for notorious and grieuous offences 37 Imprisonment for offences done vi armis 38 Imprisonment for Riots 39 Imprisonment for holding land with force 40 Imprisonment of one that is pursued by huy and cry 41 Imprisonment of him that doth breake the peace Arresting of suspected persons 42 Imprisoning of him that doth attempt to rob 43 Assisting him to arrest that hath a warrant 44 Breaking of a house to arrest in what case lawfull 45 The shirife doth arrest and doth not returne his writ 46 Arresting vpon suspition of felony Causes of suspition of felony
32 Pledges in Appeale of Rape 33 Within what time an Appeale shal be commenced 34 From what time the yeare shall haue relation 35 The yeare shall haue relation from the offence done 36 Within what time an appeale of Rape shal be commenced 37 In what County Appeale shal be brought 38 In what county an Appeale of Rape shal be brought 39 In what county an Appeale of Robbery shal be brought 40 Threatening in one county to bring money into another 41 Goods robbed carried into diuers Counties 42 Before whom an Appeale shal be brought 43 Remouing an Appeale out of the County 44 An Appeale before the Iustices of Gaole deliuery 45 An Appeale before the Iustices of the Kings Bench. 46 An Appeale against one bayled No Appeale against him that is let by mainprise 47 Appeale before Iustices of Peace 48 Appeale before the Constable and Marshall No Appeale in Parliament 49 Diuers Appeales for one felony 50 One onely Appeale for one Felony 51 Where diuers Appellees for one Felony 52 Two Appeals founded vpon one Felony 53 Robbery of seuerall parcels of goods 54 Where one shall answere to diuers Appeales or Indictments 55 Answere to diuers Indictments as well as to Appeales 56 He that hath his clergy shal answere to an Appeale of former offences 57 A Clarke shall answere to a former Appeale or Indictment of former offences 58 Proces in Appeale before the Coroner 59 Proces vpon an Appeale or Indictment 60 Proces against indictors in another County 61 Proces against Appellees and Indictees in forraine Counties 62 Proces vpon an Appeale remoued into the Kings Bench. 63 The party appealed must be supposed to be of a forraine countie 64 An appellee dwelling in no place certaine 65 Proces into a County Palantine 66 Proces against Principall and Accessarie 67 The Statute of West 1. extendeth onely to Appeales commenced by Bill 68 In Appeale one appeareth and others make default 69 Proces to remoue an Appeale 70 A Certiorari into the countie 71 Proces against the plaintife after an appeale remoued 72 Proces against the defendant after an appeale remoued 73 Proces against one that by the Shirifes returne escaped 74 Proces with a prouiso for the appellee 75 Proces to remoue prisoners or records 76 How the appellee shall bee led to the barre 77 Count in an Appeale An Appeale of Murther The yeare day houre time of the king and the towne materiall 78 The place where the fact was done 79 Count in an Appeale of death against three as principals The fact must be declared 80 Count in an Appeale of Robbery 81 Where in an appeale of Rape the Statute must be rehearsed in the Count and where not 82 Defence in an Appeale 83 Pleas to the Writ in Appeale 84 The forme of the Writ in an Appeale of Rape This word Rapuit materiall 85 Not two Appeales for one offence 86 Pleading of one in an Appeale brought against two 87 The plaintife in an Appeale misnamed 88 Two or three pleas to the Writ 89 Barres in Appeale Barre in Appeale of death brought by the wife 90 Barre in Appeale of death brought by the heire 91 Barre in Appeale of Rape or Robberie 92 Generall pleas in barre in Appeale 93 Barre for that the plaintife brought another Appeale 94 Barre by the plaintifes release 95 Pleading not guilty after other pleas 96 Where the king may prosecute an Appeale begun 97 No Appeale of Treason Indictments Fol. 169. 1 Commissions to Sherifes to take Indictments 2 When the Sherife shall hold his Turne An Indictment found in an vnlawfull time 3 Sherifes shall enquire by xij men at the least 4 Indictment before the Sherife shall bee by Roll indented 5 Of what sufficiencie Iurors returned in the Sherifes Turne shall be 6 Indictments taken in the Shirifes Turne shal be deliuered to the Iustices of Peace 7 Iurors in Indictments shal be returned without the denomination of any 8 Pannels for Indictments may be reformed by the Iustices 9 An Enquest to inquire of the concealement of other Enquests 10 In what case indictment and triall shall bee where the King will 11 Indictments and Trials of Treason committed out of the Realme 12 Indictment in the county of Lancaster of a forrainer 13 Indictment of a Lancashire man in a forraine County 14 Indictment for the striking or poisoning of a man in one coūtie who dieth in another Indictment of an accessary to an offence committed in another County 15 Indictments lacking these words Insidiatores viarum depopulatores agrorum 16 Words not necessary in Indictments 17 No more shall be in an Indictment then is true Felonicè or Piraticè in an Indictment 18 Where a verdict in an action of Trespas shall be an Indictment of Felony 19 The Sherifes returne is no Indictment 20 The yeare day and place necessary in an Indictment 21 An Indictment must be certaine in the matter 22 An Indictment must be certaine in the persons receiued 23 An Indictment vncertaine at what Court 24 Indictment for making of money 25 Indictment of a common theefe Indictment of the Ordinarie 26 The foresaid A. in an Indictment where none is before named 27 Indictment for the killing of a man vnknowne Indictment for the stealing of the goods of a man vnknowne 28 Indictment for the stealing of the goods of a Church or Chappell 29 An Indictment depending vpon an argument or implication 30 In an Indictment furatus est without felonicè or in Rape carnaliter cognouit without rapuit 31 An Indictment before Iustices of Peace 32 An Indictment before the Maior of London vpon sight of the body 33 Indictment of the receit of a Felon as accessarie 34 Indictment of the receit of the goods stolne and of the Felon 35 Indictments void for one purpose will serue for another 36 A prisoner discharged and after retained in prison 37 The difference between an Appeale and Indictment 38 Pleading another time acquit of the same Felony 39 Indictment of the death of a man knowne by two surnames 40 Indicted of the same mans death 41 Indicted in two counties of one offence 42 Arraigned vpon an insufficient Indictment or Appeale 43 Acquit vpon an erronious Appeale 44 Acquit vpon an Appeale brought by one that hath no right 45 Arraigned vpon an Indictment before the parties Appeale be determined 46 Acquit by battaile in an Appeale 47 A Murtherer indicted and arraigned at the Kings suit Another time acquit no plea in an Appeale but in an Indictment 48 No Indictment of Robberie vntill the Appeale bee tried 49 Pleading another time conuict of the same Felony 50 Another time attainted of the same Felony 51 The Kings Pardon obiected against the plea of another time attainted 52 Who is said attainted and who conuict of Felony Mainprise and Baile Fol. 180. 1 In what cases a prisoner is mainpernable in what not 2 The principall in Appeale of death not mainpernable 3 Where the principall let to mainprise 4 Pleading
excommunication in the plaintife 5 Who are mainpernable who not Bailement by the Shirife With-holding of Prisoners mainpernable 6 In what cases no mainprise by the common Law The King or Iustices commandement 7 The Marshall shall baile no prisoner The Iustices ordinarie or absolute commaundement 8 Mainprise for offendors in Vert or Venison 9 In what case hee that is outlawed may be bayled 10 Mainprise during an approuers life 11 Maineprise vpon good name The principall in Burglary and Robbery mainpernable 12 No bailement for a prisoner attainted 13 Bailement of offendors by Iustices of Peace 14 Bailement of offendors by the Shirife 15 Bailement by Shirifes and others 16 Imprisonment at the Kings pleasure 17 The difference betweene bailement in Felony and in a personall Action 18 Mainprise is matter of Record Confession of the offence Fol. 184. 1 An offendor in felony pleadeth one of three pleas 2 Confession of the offence before the Iudge vpon the prisoners arraignement may bee in two sorts Confession of the offence must be free and without menace 3 He that doth confesse his offence before the Iudge doth become an approuer 4 Confession of the offence before the Coroner whereupon abiuration doth ensue Approuer Fol. 185. 1 Who is an Approuer An Approuer shal be banished 2 Of what offences approuement may be 3 Approuement in an Indictment and not in an appeale 4 Before whom one may approue 5 How an Approuer shall vse himselfe No approuing after pleading An Approuer must tell truth 6 An Approuers oath 7 An Approuers wages 8 An Approuer set at liberty An Approuers appeale must be certaine 9 Proces against the appellees after the approuement 10 Pleas for the appellee against the approuer An Approuer attainted or conuict of Felony 11 An appellee cannot appeale others 12 An Approuer not in prison for felony or at liberty 13 The appellee an honest and credible man 14 Generall pleas in barre of the appeale 15 Where the king may pursue an Appeale begun 16 The appellants release to the appellee 17 An Approuer confesseth his Appeale to be false 18 An Appeale abating before declaration A Felon taken with the mannoure 19 No arraignment at the kings suit vpon a false declaration Where if not an appeale yet an Indictment may bee at the kings suit 20 The plaintife in the appeale excommunicat or outlawed 21 An Approuer pardoned the appellee shal be discharged 22 Vanquishing of one of the approuers 23 Examining of an offendor condemned Sanctuary and Abiuration Fol. 189. 1 What Sanctuarie is 2 What Abiuration is 3 All Sanctuaries be extinguished Abiuration by the common Law Abiuration to a place within the Realme 4 No abiuration for Treason 5 No abiuration for the robberie of a Church 6 No abiuration for a man attainted 7 No abiuration for a man before abiured 8 Where an offendor may bee drawne out of the Church by violence The offendors confession before the Coroner 9 Tarrying in a Church aboue the time limitted 10 The manner of Abiuration The oath of Abiuration 11 The attire of an abiured person 12 The vsing of persons abiured 13 The abiuration broken death ensueth A Clarke need not to abiure 14 Where no Felony no abiuration for Felony 15 The abiured pleadeth that he is not the same person The Kings pardon of Abiuration 16 Abiuration by a Recusant 17 Abiuration by a Popish Recusant 18 Abiuration by him that committeth Trespas Pleading not guilty Fol. 192. 1 The plea of not guilty the most common for a prisoner One may plead not guilty after other pleas 2 Where vpon the plea of not guilty counsel shal be allowed and where not Triall by Battaile Fol. 193. 1 Triall of not guilty by Battaile or by the Countrey 2 The forme of triall by Battaile 3 The reason why the defendant in an appeale may be tried by battaile 4 Counterpleas to the Battaile 5 Taken with the manoure 6 Breaking of prison 7 Le ts of triall by battell on the plaintifes part 8 Priuiledges of the appellants person The King A Citizen of London 9 No wager of battell in an appeale of Rape 10 One fighting with seuerall men 11 An Appeale by an approuer 12 The appellee wageth battell and then becommeth blind Triall by Peeres Fol. 196. 1 The triall of the plea of not guilty by Peeres 2 The forme of arraignement and triall of a Peere of this realme 3 By whom Peeres appealed shal be tried By whom Ladies shall be tryed 4 The triall of Bishops Arraignement and Tryall in Parliament 5 Triall of Treason committed in Ireland 6 Triall of Misprision of Treason The number of Peeres at the triall 7 Triall of Peeres by Peeres in all cases of Treason and Felonie Triall by the Countrey Fol. 198. 1 Triall of the plea of not guilty by the countrey 2 Triall by the country of forraine pleas A man stricken vpon the Sea dieth vpon the land 3 The Proces against the Iurie The Proces in an Appeale and not in an Indictment 4 Where a Nisi prius is grauntable in an Appeale 5 Remaunding of prisoners out of the Kings Bench into the Countrey 6 Triall of Felonies committed by English men in Scotland 7 The prosecutors and witnesses bound to giue euidence 8 The accessary tried though the principall be not 9 Euery Iuror must haue fiue pounds of freehold 10 The offendor shall forfeit no lands 11 A like Act made in Scotland 12 Scottishmen repairing into England to giue euidence shal be free from arresting 13 The offence shall be layed where it is done 14 Hee that is once tried shall not be eftsoones called into question 15 None shall bee sent out of England to receiue his tryall 16 The Iurors shall allow of or reiect the witnesses Challenge Fol. 201. 1 Where the prisoner is allowed to challenge peremptorily Seuerance in challenges 2 Which be challenges vpon cause for that hee was an indictor 3 Challenge for want of Medietatem linguae 4 Challenge for want of sufficient freehold 5 Challenge for the king 6 A man outlawed of Felony shall haue his challenge 7 A Iuror challenged for that he is an Alien a Villaine or Outlaw Euidence Fol. 204. 1 Some bound to giue euidence against an offendor let to baile 2 Some bound to giue euidēce against an offendor imprisoned 3 Restitution of goods vpon an attainder by euidence 4 Euidence giuen by a stranger 5 There must be two accusors to giue euidence in Treason 6 Euidence or accusors in high Treason 7 Euidence against abettors to offences 8 Euidence on the defendants part in Felony Verdict Fol. 206. 1 A Verdict at large may bee giuen in Felony 2 The Verdict sometime lesse penall then the Indictment 3 The Verdict sometime more penall then the Indictment 4 Where the Iury shal find who killed the dead man Clergy Fol. 207. 1 What Clergy is 2 Who shal not haue his clergy by the common Law 3 A committer of Sacriledge 4 The habite or tonsure of a Clerke 5 Clergie