The former kind may be divided into 3 Classes, (viz.)

1. Into those that have Relation to life it self, such as Homicide▪

[Page 2] 2, Into those that respect the Body and Members, as Battery, Mayhem, and Rape.

3. Into those that belong to Dominion, or property, such as Theft, and burning of Houses.

The latter kind do comprehend High-Trea­son, Misprision of Treason, Robbing the King's Treasure, Bribery, Extortion, striking in any of the King's Courts, where He resides Personal­ly▪ or by Representation, and all manner of Breaches of the Publique Peace; such as Con­jurations, Routs, Ryots, Affrayes, Duels, Ly­bels, and false Rumours. Of these several kinds in their Order.

1. Of those Crimes that are committed medi­atly, contra Coronam & dignitatem Regis, and do relate to Life it self, as Homicides.

In Homicide, are worthy of Observation, the Etymologie of it, and its general Division.

Est homicidium, Lib. 3. c. 4. nu. 3. de core­na. sayes Bracton, hominis Oc­cisio, ab homine facta, si enim a Bove, Cane, vel alia re non dicetur proprie Homicidium, Est dictum Homicidium, ab homine, & Caedo. quasi hominis Caedim: And with Bracton doth Concurre in this matter, another antient Au­thor viz. Mr. Horne, whose very words are these: Homicide est Occision de Home per Home fait, Mirror. c. 1. Sect. 9. car si soit per beste, ou mischeance nest Ho­micide. Thus much of the Definition, and Ori­gination of the word Homicide: As for the right division of Homicide, take this as follow­eth: Of Homicides some be done.

1. Proposito, voluntarily, and of malice fore­thought, as petty-Treason, and Murther,

2. Impetu, voluntarily, and not of malice [Page 3] fore-thought: Of these some be Felony, as Man-slaughter, and some be no Felony; Of which, some be in respect of giving back inevi­tably in defence of himself, upon an assault of Revenge;Co. 3. Jnst. f. 54. and some without any giving back, as upon the Assault of a Thief, or Rob­ber, upon a man in house, or abroad. Some upon the Assault of one, that is under Custody, as the Sherif, or Gaoler assaulted by his priso­ner; some in respect that he is an Officer, or Minister of Justice, without any assault in Exe­cution of his Office or Lawful warrant.

3. Casu, such as be no Felony, neither forethought, nor voluntary, as Man-slaugh­ters by misadventure. Having shewed the Reader Sr. Edward Cook's division of Homicide; I begin with the first Branch, viz. Homicide voluntary, and of malice fore-thought, and this conteines petit Treason, and Murder.

Treason (being derived from Trahir) which is treacherously to betray,1 Petit Treason. Trahue betrayed, and Trahison per Contractionem, Treason is the betraying it self, it is divided into two parts, into High Treason, and petit Treason: It is called High, or Grand Treason in respect of the Royal Majesty against whom it is perpetra­ted, and Comparatively it is stiled petty Trea­son,Co. 3. Inst. f. 4. & 20. in respect it is committed against Subjects, and inferior persons; so that this petit Trea­son is when wilful Murder (in the Estate Oeco­nomical,) is committed upon any Subject, by one that is in subjection, & oweth Faith, Duty, and Obedience to the party Murdered; as in these three Cases following, which are only [Page 4] mentioned by the Statute of 25. E. 3. C. 2. de prodicionibus; and likewise by Britton Cap. 8. & 22.

1. When a servant slayeth his Master: This was petit Treason by the Common Law, for it appeareth by the Book 12.12 Ass. pl. 30. Ass. that a woman servant killed her Mrs, wherefore she had Judgment given to be burned, which is the Judgment at this day of a woman for petit Treason. And herewith agreeth 21 E. 3. 17.

Upon the Act aforesaid, if the servant kill the wife of his Master,19 H. 6. 47. it is petit Treason, for he is servant both to the Husband and wife.

A servant upon malice pretended,Plowdens Com. 86. b. Crompt. 20. shooteth at a stranger and misseth him, and killeth his Master, being by; this is petit Treason in the servant (though he intended no hurt to his said Master yet) because he intended Murther thereby.

A Servant commands one to beat his Ma­ster,Crompt. 20. and he killeth him, this is petit Treason in the servant if he be present.

If a servant has an intent to kill his Master, and before the Execution of his purpose,Co. lib. 1. Shellies case 99 b. 10. H. 6. 47. de­parteth out of his Masters service, and being out of his service, put his Intent in Execution, aud kills him, who was his Master; this is petit Treason:Plowdens. Com. 260. Co. 3. Inst. f. 20. for the Execution of the Act, hath a Retrospection to the Original Cause, which was malice conceived when he was a servant.

A maid-servant conspires to kill her Mistress,Moores Reports. nu. 227. f, 91. it is petit Treason in her, and Murder in the Actor.

2. When a Wife slayeth her Husband.

The wife maliciously killeth her Husband, this is petit Treason in her: But if the Hus­band maliciously killeth his Wife, this is only Murther: the reason of this diversity is, for that the one is in subjection, and oweth Obedi­ence, and not the other.

The wife poysoneth an Apple, to the intent to poyson a stranger therewith,Cromp. 20. and laid it to that purpose in a secret place, and the Husband by chance eateth of it, and dyeth thereof, with­in a Year and a day; this is petit Treason in the Wife, for that she intended Murther there­by; so if the Wife poysoneth an Apple, or o­ther thing, and delivereth it to B. (knowing of the poyson) to give to C. and B. giveth it to the Husband (without the assent of the Wife) who eateth thereof in the Wives ab­sence, and he dyeth thereof, this is petit Trea­son in the Wife: But if the Wife poysoneth a thing,Plowd. Com. f, 474. to the intent to poyson her Husband therewith, the Husband eateth of it, and be­cometh very sick, but recovereth: after a stranger eateth thereof, and dyeth thereof, this is onely murther in the Wife.

If the Wife and Servant conspire the Hus­bands death, he is killed by the Servant, in the absence of the Wife,Co: 3: Just f▪ 20▪ this is petit Treason in them both, and the Wife shall be burnt. But if it had been a stranger, it had been murder in him onely, and petit Treason in the Wife.

Baron, and Feme out of affection were resol­ved to go out of the World together; The Wife buyes poyson, both take it, the Husband [Page 6] dyed; It is a quaere in the Book, whether this were murther in the Wife.

A Woman compasseth with her Avowterer,The Wo­mans Law­yer, lib. 3. sect. 44. the death of her Husband, they assailed him, Riding on the Highway, beating, wounding, leaving him for dead, and then they fled: The Husband got up, levied Hue and cry; came be­fore the Justices; they sent after the Offenders, which were gotten, arraigned, and the matter found by the Verdict, the Adulterer was hang­ed, the Woman burned to death, the Husband living: This Judgement was given when vo­luntas reputabatur pro facto, Sic Metellus Celer Sergium damnavit, & non facturm, sed animus in questionem deductus est: Plusque voluisse peccare nocuit, quam non peccasse profuit: But at this day in case of Felony, Non debet obesse Conatus, ubi injuria nullum habet effectum.

3. When a Secular, or Religious man slayeth his Prelate, Ordinary, or Superiour, to whom he oweth Faith and Obedience.

Note, that unto the Bishop of every Dio­cess, the Clerks within their Diocess, do owe Faith and Obedience, which is called Canoni­cal Obedience.

Note likewise, that whatsoever Act will prove murder between strangers, the same will make petit Treason from the Servant to his Master, from the Wife to the Husband, from the Clerk to his Prelate, or Ordinary, Mutatis Mutandis: But whether from a Child to the Father, or Mother, &c. may be a Quaere, for [Page 7] some hold that it is petit Treason, and others that it is not.

If the Child maliciously killeth the Father, or Mother, this sayes one is petit Treason (al­though the Father or Mother at the same time gave neither meat, drink, or Apparel, nor wa­ges to such Child) in respect of the duty of nature violated, vide 21. E. 3. 17 Book Trea­son 6.

A Bastard killeth his Mother,Crompt' 21. this seemeth petit Treason; for the Mother is certainly known.

The Son, or Daughter in Law, killeth the Father, or Mother in Law, with whom they dwell, and do service, and have meat, and drink, it is petit Treason;Dalisons Rep. 1. Mar. 1. although such Child take no wages, but the Indictment shall be by the name of Servant.

But my L. Coke says thus; If the Child com­mit Parricide in killing his Father and Mother (of which Solon interrogatus cur nullus parricidio supplicium indixisset? Se id neminem facturum putasse respondit. The Law-makers never ima­gined any child would do) this case is out of the Stat. of 25. E. 3, c. 2. unless the child served the Father, or Mother for wages, or meat, drink, or apparel, for that it is none of those three kinds specified in the Law afore­said: And yet (sayes he) the offence is far more heinous, and impious in a child, than in a servant, for, peccata contra naturam sunt gra­vissima; but the Judges are restrained by the said Act, to interpret it, a simili, or a Minore ad Majus. The hainousness of this Parricide ap­pears [Page 8] by that punishment, which is ordained in the civil Law, for those that are guilty of the Crime: Paena parricidij more Majorum haec in­stituta est, ut parricida virgis sanguineis verbera­tus, deinde culleo insuatut cum Cane, gallo gallina­ceo, & vipera, & simia, deinde in mare profun­dum Culleus jactetur, D. 48. 9, 9. Thus much of petit Treason.

Murder cometh of the Saxon word Mordrue, Murder, Co, Litt, 287, bpunc; Stamfords Plees of Crown, Lib, 1punc; or Mordren, and Mordridus is the Murderer even untill this day amongst them in Saxony, from whence we have most of our words: or, it may be derived of Mort, and Dire, as Mors Dira, a Cruel or Horrible death.

This Murther in our Law is Two-fold, ei­ther of himself, or of another.

1. Of Murdering a mans self, called Felo de se.

Felo de se (sayes Coke) is a man, or woman, which being Compos mentis, of sound memory, and of the Age of Discretion, killeth himself, which being lawfully found by the Oath of Twelve men; all the Goods and Chattels of the party so offending are forfeited: And the Reason▪ why Felo de se doth forfeit all his Goods and Chattels is, because it is an offence against the King, who by that perpetration is deprived of a Subject: And indeed no man by the Law of nature hath such power over his own life, as to take it away, or to oblige it by any Contract, or Bargain, vide Grot. Lib. 2. c. 21. nu. 11. Lib. 3. c. 11. nu. 18. Having shew­ed [Page 9] the Description of Felo de se, and the Reason of forfeiting his Chattels, I propose these Queries with their Resolutions.

Whether a person that is non compos mentis,Quaere 1, giving himself a mortal wound, and after recove­ring his memory, before death ensues, be Felo de se?

If one during the time that he is non compos mentis giveth himself a mortal wound,Resp, whereof he, when he hath recovered his memory dyeth, he is not Felo de se; And the Reason is because the stroke, which was the cause of his death, was given, when he was not Compos mentis. Et actus non facit Reum, nisi meus sit rea: And this is agreeable to the civil Law: Maleficia voluntas, D, 47, 253N & propositum distinguit: voluntas & propositum maleficium delinquentis distinguit: De­lictam cessat, ubi delinquendi animus non est.

Whether a man can be said to be Felo de se upon an involuntary Act? Qu, 2,

A man may be so;Resp, As if A. give B. such a stroke, as he felleth him to the ground, B. draweth his knife, and holds it up for his own defence: A. in hast, meaning to fall upon B. to kill him,44 E, 3, 44, 3 E, 3, Cor 286, Co, 3, Inst, f. 54, falleth upon the knife of B. whereby he is wounded to death, he is Felo de se: For B. did nothing but that which was lawful in his own defence; Et vim vi defendere sayes the civil Law, omnes leges, omnisque jure permit­tunt, D. 9. 2, 45, 4.

Whether the goods of Felo de se be forfeited be­fore it be found of Record, Qu, 3, that he is Felo de se?

No Goods be forfeited,Resp, untill it be lawfully found by the Oath of Twelve men, that he is [Page 10] Felo de se: Plowd. fol, 360, b. And this doth belong to the Coro­ner, super visum Corporis, to enquire thereof: and if it be found before the Coroner, super visum Corporis, that he was Felo de se, the Execu­tors or Administrators of the dead shall have no Traverse thereunto. And this is the rea­son that no man can prescribe to have Felons goods,Co, Lit, f, 114, ab, l, 5, f, 109. because they are not forfeited untill it be found of Record, that he is Felo de se.

How a Felo de se shall be enquired of,Qu, 4. where the body cannot be found?

If a man be Felo de se, Resp. and is cast into the Sea, or otherwise so secretly hidden, as the Co­roner cannot have the view of the body, and by consequence cannot enquire thereof:Hill, 37▪ Eliz; in the Kings-Bench by the whole Court, in the Case of one Laugh­ton of Cheshire. In this case it may be inquired thereof by the Justices of Peace of that County, for they have power by their Commission to inquire of all Felonies. But if it be found before them, the Executors, or Administrators of the dead may have a Traverse thereunto, but not to the In­dictment taken before the Coroner, super visum corporis, as before is said.

Whether a joynt Tenant of Chattels personals, becoming Felo de se, Qu, 5, doth forfeit the whole?

There is a diversity between Chattels perso­nals in Action,Resp, and in possession: for if a debt be owing to two,8 E, 4, 4, 7 E, 4, 7, a, Plowd, Com, 259, b, unless it be in case of Joynt-Merchants, and the one is Felo de se, he doth forfeit the whole: but otherwise it is of goods in possession, for there he forfeiteth but his part.

Whether a debt upon a bare Contract be for­feitable?Qu, 6,

[Page 11] If a man that is Felo de se has a debt upon a bare contract,Resp, Dyer 262, a, and not upon specialty, this shall not be forfeited unto the King.

2. Of Murder in respect of another.

Bracton defineth this kind of Murder to be Homicidium, Lib, 3, c, 15, nu, 1, de Corona Britton, c, 6, quod nullo praesente, nullo sciente nullo audiente, nullo vidente, clam perpetratur: And of the same mind is Britton, whose words are Murdre est occision de home disconu felonious­ment fait dount home ne poit scaver per qui, ne per quex: As also Fleta: Est murdrum occulta hominum occisio, a manibus hominum nequiter per­petrata, Lib, 1, c, 30, que nullo sciente vel vidente, facta est, preter solum Interfectorem, & suos coadjutores & fautores: yet Fleta saith also, that it was not murder, except it were proved, that the party slain were English, and no stranger: But as Stamford s;aith, the Law in this point hath received an alteration by the Stat. of 14. E. 3. And therefore this murder is now other­wise to be defined,14 E, 3, c, 4▪ or described: It is when a Reasonable Creature (be it man, woman, child, Subject born, or Alien, persons outlawed, or otherwise attainted of Treason, Felony, or premunire, Christian, Jew, Heathen, Turk, or other Infidel, being under the Kings peace) is slain, or killed by a man of sound memory, and of the age of discretion, with malice forethought either expressed by the party, or implied by Law.

[Page 12] Touching the former, viz. Malice expressed, take these Queries with their Solutions:

Whether this same malice,Qu, 1▪ though it be intend­ed against one, it shall be extended towards ano­ther?

This Malice is so odious in Law, as though it be intended against one, it shall be extended towards another;Sol, And therefore Bracton's words are; siquis unum percusserit cum alium percutere vellet, Co, Lib, 9, Gores Case 81, in felonia tenetur: As if A. put poyson into a pot, to the intent to poyson B. and set the same in a place, where he sup­poseth B. will come and drink thereof, and by accident one C. unto whom A. hath no malice, cometh, and of his own will taketh the pot, and drinketh thereof, of which poyson he dyeth; This is murder in A. for the Law doth couple the event with the intention, and the end with the cause: But herein is a diversity between the principal, and the Accessory; For if A. command B. to kill I. S. and B. killeth I. D. mistaking him for I. S. this is murder in B. because he did the Act, which sprang out of the Root of malice,Plowd, Com, Saunders Case, but A. is not Accessory, because his own commandment was not pur­sued: But on the other side, if A. command B. to kill I. S. by poyson, and he doth it by violence, as by weapon, sharpe or blunt, Gun, Cross-bow, Crushing, &c▪ in this case not­withstanding the fact be not executed accord­ing to the mean prescribed; yet A. is Accesso­ry nevertheless; for the commandment was to kill, which ensued, though the mean was not followed.

[Page 13] Whether killing a man by poyson be more de­testable,Qu. 2, than by any other means?

To kill a man by poyson,Sol, sayes Coke, is the most detestable of all, because it is most hor­rible and fearful to the nature of man, and of all others can be least prevented, either by Manhood, or providence: This offence was so odious,22 H, 8, c, 9, that by Act of Parliament it was made High Treason, and it inflicted a more grievous and lingring death, than the common Law prescribed, viz. That the Offendor shall be boyled to death in hot water: upon which Statute Margaret Davy a young woman was attainted of High Treason for povsoning her Mistress,Anno 33 H, 8, and some others, was boyled to death in Smithfield the Seventeenth of March in the same year: But this Act was afterwards re­pealed by 1. E. 6. c. 12. and 1. Mar. c. 1. Ha­ving given you the words of Sir Edward Coke, touching poysoning, I shall mention something in the civil Law concerning it:

Plus est hominem extinguere veneno,Cod, 9, 1, 8 quam oc­cidere gladio. For Clam interficere, sayes Gotho­fredus on the Text, gravius est, quam palam.

Plus est hominem veneno extinguere,Doctores ad Just, 4, 18▪ 5, quam gla­dio occidere.

Lege Cornelia, & veneficij Capite damnantur qui artibus odiosis,Just, 4, 28, 5, D, 48, 81, & 3, tam venenis, quam susurris magicis homines occiderint; vel mala medicamen­ta publice vendiderint.

Whether an Infant within the age of Nine years,Qu, 3, can be guilty of Murder?

Ʋn Infant deins age ix ans occist un Enfant de ix ans & Confesse le Felony, Sul, & auxi fuit trove [Page 14] que quant il luy avoit tue, il luy occult & auxi le Sanke que fuit sur luy effundes, si il ceo cxcuse; And the Judges held, that he ought to be hanged. But Fairefax said; that the words of Fortescue were,3 H, 7, 1, b. viz. That the Reason why a person is executed for Murder, is for example, that others may fear to offend; But such pu­nishment can be no example to such an Infant, or to a person that hath not discretion.

Le Recorder de Londres monstre coment un en­fant entra le age de x. ans, & xii. ans suit endite de mort, & il fuit appose de ceo, & il dit, que il gard barbettes ove cestuy que est mort & ils happen a variance per que illuy ferist en le gule, puis en le Teste & issint en divers Lieux del corps tanque qu'il fuit mort, & donques il trahist le corps en le corne, 3 H, 7, 12, b & les Justices pur sonrendr', & pur ceo que il narroit le matter playnem ent respite le Judgment, & plusours Justic disont, que il fuit deigne mort &c. And the Reason is, quia malitia supplet etatem: with this our Rule do con­cur the Roman Laws.

Impunitas delicti propter etatem non datur, si modo in ea quis sit, in quam crimen, quod intendi­tur, cadere potest;Cod 9, 47, 7, dc Poe­nis, Gothofre­dus, Qu, 4, i. e. si modo sit proximus puber­tati, & ea sentiat in quibus deliquit.

Malitia minor is etatem justam esse representat, ac supplet, vel sic: Malitioe non succurritur.

Whether Malice prepensed must be continuing, till the mort al wound given?

Albeit there had been malice between two, and after they are pacified,Sol, and made friends, and after this upon a new occasion fall out,Co, 3, Inst. f, 51, and the one killeth the other, this is Homicide, but [Page 15] no murder, because the former malice continu­ed not.

So if A. command B. to kill C. and before the Act be done, A. repenteth, and counter­mandeth his Commandment,Ibid, and charge B. not to do it; if B. after killeth him, A. is not ac­cessory to it; for the malicious mind of the Accessory ought to continue to do ill, untill the Act done.

Whether Murder can be committed of a child in utero matris? Qu, 5,

If a Woman be quick with Child,Sol, and by a Potion, or otherwise killeth it in her womb; or if a man beat her,22 E. 3 Cor 263. whereby the Child dyeth in her Body, and she is delivered of a dead Child, this is a great misprision,8 E. 2, Cor. 418, and no mur­der: But if the Child be born alive, and dyeth of the Potion, Battery, or other cause, this is murder; for in Law it is accounted a reaso­nable Creature, in rerum natura, when it is born alive.

The Law holden in Bracton's time was, si ali­quis, qui mulierem pregnantem percusserit, vel ei venenum dederit, per quod fecerit abortivus si puerperium jam formatum fuerit; & maxime si fuerit animatum, facit homicidium. And let us now see what the civil Law saith, de partu abacto; D, 48, 8, 8, si mulierem visceribus suis vim intulisse, quo partum abigeret, constiterit, eam in exilium preses Provinciae exiget.

Cicero in oratione pro Cluentio Avito scripsit,D, 48, 19, 39, de par­tu aba [...]to, Milesiam quandam mulierem, cum esset in Asia, guod ab hberedibus secundis accepta pecunia par­tum sibi medicamentis ipsa abegisset, rei Capitalis essedamnatam.

[Page 16] Whether it be murder in a Mother to conceal the death of her Bastard Child?Qu, 6,

It is Enacted,Sol, That if any Woman be deli­vered of any Issue, Male, or Female, which be­ing born alive,21 Jac, c, 27, should by the Lawes be a Ba­stard, and she endeavour privately, either by drowning, or secret burying thereof, as that it may not come to light, whether it were born alive, or not, but be concealed; In every such case the said Mother so offending, shall suffer death as in case of murder, except such Mother can make proof by one witness at least, that the Child, whose death was by her so intended to be concealed, was born dead.

Whether he that stabbeth another to death shall suffer,Qu, 7, as in case of wilful murder?

It is Enacted,Sol, That every person, which shall stab, or thrust any person, that hath not then any Weapon drawn,1 Jac, c, 8, or hath not then first stricken the party, which shall be so stabbed, or thrust; so as the person stabbed, or thrust, shall thereof dye, within the space of six months, although it cannot be proved, that the same was done of malice forethought; yet the party so offending, and being thereof con­victed by the Verdict of Twelve men, Con­session or otherwise, according to the Laws of this Realm, shall be excluded from the benefit of his Clergie, and suffer death, as in case of wilful murder.

Whether a Murder committed out of the Realm,Qu, 8, can be tryed by the Common Law?

If two of the Kings Subjects go over into a Forreign Countrey,Sol, 13 H, 4, 5, & 6, and fight there, and the [Page 33] one kill the other,Stainf: pl. cor. f. 65. this Murder being done out of the Realm, cannot be for want of Try­al heard,Co. Lit. 70. a, b and determined by the common Law of England; but it may be heard and deter­mined before the Constable and Marshal, whose Sentence is upon the testimony of witnesses, and combat; and accordingly where a Sub­ject of the King was slain in Scotland by others of the Kings Subjects, the Wife of the party slain had her appeal therefore before the Con­stable and Marshal; and so it was resolved in the 35th, year of Queen Elizabeth, in the case of Sir Francis Drake, who strook off the head of Dowtie, in partibus transmarinis, that his Brother and Heir might have an appeal.

So if a man be mortally wounded in France, Co. Lit. 70. b. and dyeth thereof in England, it is said that an Appeal doth lye upon the statutes of 12 R. 2. c. 2.Co. 3 Inst. 48, and 1 H. 4. c. 14. for it is not punisha­ble by the common Law, because the stroak was given there where no Visne can come, and therefore the same shall be heard and determi­ned before the Constable and Marshal: Thus much of Murder proceeding from Malice pre­pensed and expressed; as for Malice implyed, it hapneth in three cases.

1 In respect of the manner of the deed;Co: lib. 9. Mac. Re­yes. as if one killeth another without any provoca­tion of the part of him that is slain, the Law implyeth malice: if one make a wry, or distor­ted mouth, or the like countenance upon ano­ther, and the other immediatly pursues, and kills him, it is murder, for it shall be presu­med to bemalice precedent; and that such [Page 34] a slight provocation is not a sufficient ground or pretence for a Quarrel.Cro. 1. part Wars v. Braine f. 779.

One Halloway was Indicted and Arraigned at Newgate for Murthering one Payne, the Indictment was, that he Ex malitia proecogi­tata tyed the said Payne at the Horses tayle,Cro. 3 part Hallow. case 131. and strook him two stroaks with a cudgel, being tyed to the said Horse, whereupon the Horse ran away with him, and drew him up­on the ground three Furlongs, and thereby brake his shoulder, whereof he instantly dy­ed, and murdered him: Upon this Indictment he being arraigned, pleaded nor guilty, and thereupon a special Verdict found, that the Earl of Denbigh was possessed of a Park called Austerly Park, and that the said Halloway was Wood-ward of his Woods in the said Park, and that the said Payne with others unknown, entred the said Park to cut Wood there, and that the said Payne climbed up a Tree, and with an hatcket cut down some boughs there­of, and that the said Halloway came riding in­to the Park, and seeing the said Payne on the Tree, commanded him to descend, and he des­cending from thence, the said Halloway stroke him two blows upon the back with his cudgel, and the said Payne having a Rope tyed about his middle, and one end of the Rope hanging down, the said Halloway tyed the end of that Rope to the Horses tayle, and struck the said Payne two blows upon his back, whereupon the said Payne being tyed to the Horses tayle, and the Horse running away with him, drew him upon the ground three Furlongs, and by [Page 35] this meanes brake his shoulder, whereof he in­stantly dyed, and the said Halloway cast him over the pale into certain bushes, and whether upon all this matter found, the said Halloway be guilty of the Murder prout, they pray the discretion of the Court, and if the court shall adjudg him guilty of Murder, they find him guilty of Murder; if otherwise, they find him guilty of Man-slaughter; and this special Verdict by Certiorari was removed into the Kings Bench, and depended three Termes; and the opinion of all the Judges and Barons was demanded, and they all (besides Hutton, who doubted thereof) held clearly that it was Murder: for when the Boy who was cutting on the Tree came down from thence upon his command, and made no resistance, and he then struck him two blowes, and tyed him to the Horses tayle, and struck him again, whereupon the Horse ran away, and he by that meanes slain, the Law implies malice, and it shall be said in Law to be malice prepensed, he doing it to one who made no resistance; he was ad­judged to be hanged, and was hanged accor­dingly.

If a man give poyson to another person,Co. 3. Inst. 52. of which poyson the party dyeth within the Year, this implyeth malice, and is adjudged wilful Murder of Malice prepensed.

Note, that a man may be poysoned Four manner of wayes.

1 Gustu, by Taste, that is by Eating or Drinking, being infused into his meat or drink.

[Page 36] 2. Aub [...]litu, by taking in breath, as by a poysonous persume in a Chamber, or other Room.

3 Contactu, by touching.

4. and lastly, Suppostu, as by a Glister, or the like. Thus much of malice implyed in re­spect of the manner of the Deed.

2 Malice implyed doth happen in respect of the person slain.

And therefore it hath been resolved, that if any Sheriff,Co: lib: 9. Mackal­leys case, Cro: 2 part, Mackal­leys case, Co. lib: 4. Youngs case. under-Sheriff, Sergeant, or Officer who hath execution of Process be slain in doing his Duty, it is murder in him who kills him, although there were not any former malice betwixt them; for the Executing of Process is the life of the Law; and therefore he who kills such an Officer shall loose his life; for that Offence is Contra potestatem Regis & Legis, and therefore in such case there needs not any inquiry of malice.

The same Law is, if any Justice of Peace, Constable, or any other Officer, or any who comes with them in their Assistance, for the preservation of the peace be slain in executing their Office, it is murder through malice im­plyed: so if a Watch-man be killed in stay­ing Night-walkers, it is murder▪

One Thomas Pew was Arraigned for the murder of one Gardiner, and upon evidence it appears that the said Gardiner was a Bay­liff Sworn and known,Co. Inst. f. 52. and Under-Bayliff to the Dean of Westminster; and he having the Sheriffs Warrant to Arrest the said Thomas [Page 37] Pew, upon a Capias out of the common Bench, and seeing him in Shyre-lane within the li­berty of Westminster, the said Pew seeing him, drew his Sword, and the said Gardiner ap­proaching to lay hold upon him; (not using any words of Arrest (as was proved,) Thomas Pew said (as it was proved upon the Exami­nation of two Witnesses before the Coroner) stand off, come not near me, I know you well enough, come at your peril; and the Bayliff taking hold of him, he thrust him with his Sword that he dyed immediatly: It was held by all the Court that it was murder, for he coming as an Officer to Arrest, and not offer­ing any violence, or provocation, although he used not words, I Arrest you, or shewed him any Warrant, because peradventure he had not time, nor was demanded the cause, the Law presumes it to be malice and murder in him that so kills one being an Officer, and co­ming to execute process.

Resolved that if there be Error in Awar­ding of process,Cro: 2 part Mac­kalleyes case, or in the mistake of one pro­cess for another, and an Officer be slain in the Execution thereof, the offendor shall not have the Advantage of such Error no more then a Sheriff who suffers a prisoner to escape, shall take advantage of any Error thereby; but the Resisting of an Officer when he comes to make an Arrest in the Kings name, is murder: But a man shall take advantage against an Officer where he is slain in doing an unlawful act; so likewise upon a variance in an essential part of the parties Name.

[Page 38] As to the former, take this Resolution:

One Cook was Indicted for the Murder of Marshal, upon his Arraignment pleading not guilty, it was found that the said Marshal was a Bayliff to the Sheriff of—and had se­veral Warrants upon several Capias ad satis­fac. against the said Cook, Crook 3 part, Cooks case 573. and his Father directed unto him, and other Bayliffs, and that they by vertue or colour thereof, entred into the said Cookes stable and out-house, and hid themselves all Night, and at 8 of the clock next morning coming to Cooks dwelling House, called to open his doors, and suffer them to enter, because they had such Warrants up­on such Writs at the Suit of such persons to Arrest him, and willed him to obey them: But the said Cook commanded them to de­part, telling them they should not enter; and thereupon they brake the Window, and after­ward came unto the door of the said House, and offered to force that open, and brake one of the Hinges thereof, whereupon the said Cook discharged his Musquet at the said Mar­shal, and strook him, of which stroke the day following he Dyed; and whether upon all this matter he be guilty of Murder or Man­slaughter, was the doubt. After Argument for Cook at the Bar, all the Justices delivered their opinions, that it was not Murder, but Man-slaughter only; for although he killed a Bayliff, yet he killed him not in duly exe­cuting process; for it is not Murder, unless there be Malitia praecgitata, or Malitia im­plicita, as to Murder one suddenly, or in Re­sistance [Page 39] of an Officer doing his Office by ser­ving the process of Law wherein he is assi­sted Cum potestate Regis & Legis. But here this Bayliff was slain in doing an unlawful Act, in seeking to break open the House, to exe­cute process for a Subject, which he ought not to do by Law; although he might have En­tred if the door had been open and arrested the party, and it had been lawful, yet he ought not to break open the House, for that it is not Warranted by Law, and especially ly­ing there in the night, and in the morning breaking the Window, and offering to force the door, which is not sufferable, for under co­lour thereof one may enter who hath not any such Authority, and every one is to defend his own House; yet they all held that it was Man-slaughter, for he might have resisted him without killing him, and when he saw him, and shot voluntarily at him, it was Man-slaughter.

As to the later touching the parties name, take this Resolution:

Sir Henry Ferrers was Indicted by the name of Sir Henry Ferrers Knight, for the Murder of one Stone whom one Nightingale Feloni­onsly murdered, and that the said Sir Henry was present, aiding and abetting &c. Upon this Indictment Sir Henry Ferrers being Ar­raigned, said that he was never Knighted, which being confessed,Co. 3 part Ferrers case, f: 371, 372. the Indictment was held not to be sufficient; wherefore he was Indicted de novo, by the name of Sir Henry Ferrers Baronet, and being Arraigned, pleaded [Page 40] Not Guilty, and was tryed at the Bar, and upon Evidence it appeared that he was Arrested for Debt, and that Nightingale his Servant in seeking to Rescue him as was pretended, kil­led the said Stone; but because the Warrant to Arrest him was by the name of Sir Henry Ferrers Knight, aud he never was a Knight; lt was held by all the Court, that it was a va­riance in an Essential part of the Name, and they had no Authority by that Warrant to Arrest Sir Henry Ferrers Baronet: So it is an ill Warrant, and the killing of an Officer in executing that Warrant cannot be murder, be­cause no good Warrant.

3. There is malice implyed in respect of the person killing.

As if A. assault B. to Rob him, and in resist­ing A. killeth B. this is Murder by malice im­plyed,U albeit he never saw, or knew him be­fore.

So if a prisoner by the Duress of the Goa­ler cometh unto an untimely death, this is murder in the Goaler, and the Law implyeth malice in respect of the cruelty;Co. 3. Inst. f. 52, & 91. and this is the cause, that if any man dyeth in prison, the Coroner ought to set upon his Body, to the end it may be inquired of, whether he came to his death by Duress of the Goaler, or other­wise.

So if the Sheriff or other Officer where he ought to hang the party attainted according to his Judgment,Doct. & stud. lib. 2. c. 41. Co. 3. Inst. [...]. 52. & 217. and his Charge, will against the Law, of his own wrong, burn or behead him, or e converso; the Law in this case im­plyeth malice in him.

[Page 41] So if a Capias be directed unto the Sheriff, to take a man in an Action of Debt, or Tres­pass,Doct. & Stnd: lib, 2. c. 42. there no man can take the party but he must have Authority from the Sheriff; and if any man attempt of his own Authority to take him, and he Resisteth, and in Resisiting is slain, he that would have taken him is guilty of Murder.

So if the Sheriff will by the Authority which the Law giveth him,Co. Lit. 161, a, Co. 3. Inst. 221. 4 H. 7. 20. 14 H, 8. 18 Arrest any man for Felony, which is not guilty, the party may Rescue himself, and if upon the Rescous the party is slain by the Sheriff, he is guilty of his death. But if A. be Indicted of Murdet, Rob­bery, Burglary, or other Felony, and the She­riff by vertue of a Capias offer to Arrest him, and he Resisteth and flyeth, the Sheriff may kill him, if otherwise he cannot Arrest him, although in truth the party be Not Guilty, nor any Felony done: So by this we see that there is a diversity between a Warrant of Re­cord, and a Warrant and Authority in Law.

Thus much of Homicides Voluntary, and of Malice fore-thought, viz. Petit Treason, and Murder.

It was the Law of Numa Pompilius: Si quis Hominem Liberum dolo sciens morti duit, parri­cida est.

As there are Homicides that are voluntary, and of malice fore thought, so there are some that be voluntary, and not of malice fore-thought; of which some be Felony, as Man-slaughter [Page 42] and some be not Felony, as Se De­fendendo, &c.

1. Of Homicide, which for Distinction-sake we call Man-slaughter.

Man-slaughter is when one is slain with a mans will,Co. Lit. 287. b. but not with malice prepensed up­on some sudden falling out, or Quarrel; as if two meet together, and striving for the Wall the one kill the other; this is Man-slaughter and Felony. So if two fall out up­on a sudden occasion, and agree to fight in such a field, and each of them go and fetch their Weapon,Co. Inst, 51. & 55. and go into the field, and there­in fight, the one killeth the other; here is no malice prepensed, for the fetching of the Weapon, and going into the field, is but a continuance of the sudden falling out, and the Heat of the Blood kindled by Ire, was never cooled till the blow was given. But if they appoint to fight the next day, that is malice prepensed, and consequently not Man-slaugh­ter, but Murder.

One Royley was Indicted of the Murder of William Derman, and upon his Tryal a speci­al Verdict was found, which was removed, in­to the Kings Bench by Certiorari; Cro, 2. part 2. Roy­leys case, 296. whereupon the case was found to be such, that William Royley Son of the said Royley fighting with the said Derman, and the said Derman beating him so as his Nose bled, he thereupon went to his Father, telling and complaining unto him of that Battery; whereupon the Father in­stantly [Page 43] went into the field, and finding Der­man, called him Villein, and other opprobri­ous terms, and struck him with a little cudgel, of which stroke he afterwards dyed; and whe­ther that were murder, or only man-slaugh­ter; they doubted, and prayed the discretion of the Court, and all the Court Resolved, that it was but man-slaughter, for he going upon the complaint of his Son, not having any ma­lice before, and in that anger beating him, of which stroke he dyed, the Law shall adjudg it to be upon that sudden occasion, and stir­ring of Blood, being also provoked at the fight of his Sons blood that he made that Assault, and will not presume it to be upon malice, unless it be found. And although the distance of the place where his Son complained was a mile, it is not material, being all upon one passion. So if one hear that his Brother, Cou­sin, or Servant is fighting upon a sudden oc­casion, and he go to the place where they are fighting, (although a mile or more distant,) and finding the Adversary, fights with him, and kills him, it is not Murder, but Man-slaughter, and being before the general Par­don, was discharged thereby.

3. Of Se­Defedendo, that is Voluntary, and not Felony.

Se Defedendo is voluntary Homicide, and yet being done upon an inevitable occasion, is no Felony; as if A. be Assaulted by B. and they fight together, and before any mortal blow given A. giveth back until he cometh to a hedg, wall, or other straight beyond which he cannot pass, and then in his own Defence killeth the other, this is voluntary, and yet no Felony; and the Jury that find it was done Se defedendo, ought to find the special mat­ter.

But yet there are some Cases wherein a man is bound to give back; as

1. If A. Fleta lib. 1. c. 23. Co. 3. Inst. 56. Assault B. so friercely and violent­ly, and in such a place, and in such a manner as if B. should give back, he should be in danger of his life, he may in this Case defend himself, and if in that Defence he killeth A. it is Se Defedendo, because it is not done Felleo animo, and consequently Justifiable; with our Law dos Concur the Law Imperial:D: 1. 7, 3. Jure hoc evenit, ut quod quisque ob tutelam Corporis sui fecerit, D. 47. 9, 3. 7. jure secisse existimetnr. Non injuria fecit, qui se tueri voluit, cum alias non pos­set.

2. If a Thief offer to Rob or Murder B. Co. lib. 5. Somaynts case 21. 1 H, 7. 39 Co. 3. Inst. 56. either abroad, or in his House, and thereup­on on Assault him, and B. defend himself with­out any giving back, and in his Defence killeth the Thief, this is no Felony, for a man shall [Page 45] never give way to a Thief, &c. neither shall he Forfeit any thing, and so it is declared by the statute of 24 H. 8. c. 5.

One Cooper being Indicted in the County of Surrey of the murder of one W. L. in Southwark, Cro. 3. Part Cowepers case, 554, he pleaded Not Guilty; and upon his Arraignment it appeared that the said Cooper being a prisoner in the Kings Bench, and lying in the House of one Anne Carrick, who kept a Tavern within the Rules, the said W. L. at one of the clock in the Night as­saulted the said House, and offered to break the staple thereof, and swore he would en­ter the House, and slit the Nose of the said Anne Carrick, because she was a Bawd, and kept a Bawdy-House; and the said Cooper disswading him from these Courses, and re­prehending him, he swore that if he could en­ter, he would cut the said Coopers Throat; and he brake a window in the lower Room of the House, and thrust his Rapier in at the window against the said Cooper, who in de­fence of the House, and himself, thrust the said W. L. into the eye, of which stroak he dy­ed. The Question was, whether this were within the Statute of 24 H. 8. and the opi­nion of the Court was, that if it were true that he brake the House with an intent to commit Burglary, or to kill any therein, and a party within the House, (although he be not the Master, but a Lodger or Sojourner therein) kill him who made the Assault, and intended mischief to any in it, that it is not Felony, but excusable by the Statute of 24 [Page 46] H. 8. which was made in the affirmance of the Common Law; wherefore the Jury were appointed to consider of the circumstances of the Fact, and they being a substantial Jury of Surrey, found the said Cooper not Guilty upon the Indictment, whereupon he was discharged.

3. If a prisoner assault the Goaler,22 Ass. pl. 55. the Goaler is not by Law inforced to give back, but if in defence of himself he kill the priso­ner, this is no Felony.

4. If any Officer or Minister of Justice that hath lawful Warrant,3 E. 3. Cor. 290. and the party as­sault the Officer, or Minister of Justice, he is not bound by Law to give back, but to carry him away; and if in execution of his Of­fice he cannot otherwise avoid it, but in striving kill him, it is no Felony.

Note, if men tilt or turney in the presence of the King; or if two Masters of Defence playing their prizes kill one another, this is no Felony, 11 H. 7. 23. a. Hobarts Reports, Weaver v. Ward f. 134. And the reason given is, for that in Friendly manner they contend to try their strength, and to be able to do the King service in that kind as occasion should be offered.

Hitherto of Homicides that be voluntary, and no Felony, whereof some be in respect of giving back inevitably in defence of himself, upon an assault of Revenge, and some with­out any giving back, &c. I now proceed to that Homicide that is not Felony, neither fore-thought, nor voluntary, and this we [Page 47] call Man-slaughter by misadventure, or Chance-medley.

3. Of Homicide by misadventure.

Chance medley,Co. Litt. 287. 6. or per Infortunium, is when one is slain casually, and by misadventure, without the will of him that doth the Act, whereupon death ensueth.11. H. 7. 23. a. 21. H. 7: 28. a. 6. E. 4. 7. Or Homicide by misadventure is when a man without any evil intent doth a lawful thing, or that is not prohibited by Law, and another is slain or cometh to his death thereby, as if one shoot at Butts, or at pricks, and kill a man, by swarving his hands,Bract. l. 3. c. 4. n. 3. this is no felony; The same Law is of tiling an House, and a tile fall, and killeth one. So if one train­ed Souldier hurteth another in skirmish, of which hurt he dies, this being by misad­venture is no felony. But in any of these Cases before put if a man be hurt or maim­ed only, an Action of Trespass lieth against him that was the cause of the hurt, or maime, though it be done against the parties mind and will; because in Civil Trespasses and injuries, that are of an inferior nature, the Law doth rather consider the damage of the party wronged, then the mind of him, that was the wrong doer.

Vide Hobarts Reports Weaver against Ward f. 134. But to return from whence I have made a digression: It is to be con­sidered, whether he that commiteth this Homicide by misadventure in doing a lawful [Page 48] Act, and likewise without an evil intent; for if the Act be unlawful, or done with an evil purpose, it will prove murther.

1. Touching an unlawful Act: If a man shoot at a Cock or Hen, or any fowl of another man, and the arrow by mischance kill a man, this is said to be murther, for the Act was unlawful. So if a man doth beat another, and with intent not to kill him, yet if the party be killed by this bat­tery, it is felony.

So if two are fighting together, and a third cometh to part them, and is killed by one of them two, without any malice fore-thought, yet this is murther in him,11. H. 7. 23. a. and not Homicide by Chancemedley, or misad­venture, because that they two that fought together, were in doing of an unlawful Act. And if they were met with prepen­sed malice, the one intending to kill the other, then it is murther in them both.

2. Touching an evil Intent; If a man knowing that many people come in the street from a Sermon, throw a stone over a wall, intending only to fear them, or to give them a light hurt, and thereupon one is killed, this is murther, for he had an evil intent, though that intent extended not to death, and though he knew not the party slain.

Note, though the killing of a man by misadventure,Co. 3. Inst. f. 57. or by chance, be not felony, Quia in maleficiis voluntas spectatur, non exi­tus. D. 48. 8. 14. yet the party guilty shall [Page 49] forfeit therefore all his Goods, and Chattels, to the intent that men should be cautious, as they tend not to the effusion of mans blood: I shall conclude this learning touching Homicides, with somewhat appertaining to Physicians and Chirurgians.

If one that is of the mystery of a Physician, take a man in Cure,Co. 3. Just. 257. and giveth him such Physick, as within 3 dayes he dies thereof without any felonious intent, and against his will, it is no Homicide: But Briton (cap. 5. De Homicides,) saith, that if one who is not of the mystery of a Physician or Chi­rurgion, take upon him the Cure of a man, and he dieth of the potion, or Medicine, this is, saith he, Covert felony. In the Ci­vill Law it is thus: Medico imputari eventus mortalitatis not debet: D. S. 182 6. 7. Ita quod per imperitiam commisit, imputari ei debet, praetextu huma­nae fragilitatis delictum decipientis in periculo homines inoxium esse non debet.

Imperitlia culpae adnumerontur: Just. 4. 3. 7. veluti si Me­dicus ideo servum tuum occiderit, quia male secuerit: aut perperam ei medicamentum de­derit,

2. Of those Crimes, that appertain to mans body, or members, and they are Battery, Mayhem, and Rape.

Battery, 1. Of Bat­tery. is when a man assaulteth and beateth another, this is against the Law and Peace of the Realm, which ordaineth, that no man shall be his own Judge, or revenger of his own private wrong, but shall leave this to the Censure of the Law; (And this is agreable to the Roman Laws:Cod. 3. 5. 1. Generali lege decernimus, neminem sibi esse ju­dicem vel jus sibi dicere debcre. In re enim propria iniquum admodum est alicui licentiam tribuere sententiae. Again: Non est singulis concedendum, D. 50. 17. 176. quod per Magistratum publice possit fieri, ne occasio sit Majoris tumultus fa­ciendi: wherefore he that is so beaten may indict the other party, who upon it shall be fined to the King: But some there are that may in a reasonable and moderate man­ner chastise, correct and beat others.

1. In respect of power, proceeding from the Law of nature, as Parents may correct their own Children.

2. In respect of Authority oeconomical, as the Master may chastise his Servant, or Apprentice.

3. In respect of power arising from Civil Justice; as the Gaoler and his servant, the unruly prisoners; the Officers, him that is [Page 51] arrested, and will not otherwise obey.

Also a man may justify the beating of another, in defence of his own person, or of the person of his Wife, Father, Mother, or Master: But when any is assaulted, or beaten in Church, or Churchyard, it is not lawful for him to return or give any blows in his own defence,Cro. 2: part Fran­ces. v. Leg. as he may else­where in other places.

Mahim, 2. Of Mahim. Co. Lit. 126. a. F. 288. a. or maime (Mahemium) cometh of the old French (Mehaigne) a Maime a corporal hurt, whereby a man loseth the use of any member. The Canonists call it Membri mutilationem, or Mayhem, is where by the wrougful Act of another auy mem­ber is hurt or taken away, whereby the party so hurt is made unperfect to fight: As if a bone be taken out of the head: or a bone be broken in any other part of the body, or foot, or hand, or finger, or joynt of a foot, or any member be cut: or by some wounds the sinews be made to shrink or other member, or the fingers made crook­ed, or if any eye be put out, or the fore­teeth broken, or any other hurt in a mans body, by means whereof he is made the less able to defend himself, or offend his enemy: But the cutting of an ear orNote, that to cut ma­liciously the nose of another, is made felo­ny, by a Law ena­cted in the Reign of his now Majesty. nose, or breaking the hinder teeth, or such like, is no Mayhem, because it is rather a defor­mity of the body, then diminishing of strength, and that is commonly tryed by beholding the party by the Justices. And if the Justices stand in doubt, whether the hurt be a Mayhem or not, they use, and [Page 52] will of their own discretion, take the help and opinion of some skilful Chirurgeon, to consider thereof, before they determine upon the Cause.

But whether a man may be indicted for maiming himself?Co. Lit. 127. a, b. To this it answered, that he may; As it appears in the Case of one Wright, anno 11. Jac. in the Country of Leicester; who being a yong, strong, and lusty rogue, to make himself important, there­by to have the more colour to beg, or to be relieved, without putting himself to any labor, caused his Companion to stricke off his left hand, and both of them were indicted, fined, and ransomed therefore, and that by the opinion of the rest of the Ju­stices, for the members of every subject are under the safeguard and protection of the King, to the end that they may serve the King, when occasion shall be offred, and therefore not in the power of a subject to maim or hurt his own body or limbs, or to cause another to do it. And this is a­greable to the Civil Law, Nemo membro­rum suorum est dominus: Liber home suo no­mine utilem aquiliae habet actionem: directam enim non habet; quoniam dominio membro­oum suorum nemo videtur. D. 9. 2. 13.

By the ancient Law of England, he that maimed any man, whereby he lost any part of his body, the Defendant should loose the like part,Co. 3. Instit. 118. (as he that took away another mans life, should loose his own) And this was grounded upon the Law of God, Le­vit, 24, v. 18, 19. 20. Deut. 19. v. 21. It [Page 53] is called among the Latines Lex Talionis, or Reparationis, among the Greeks, [...], per quam quis Patitur, quod alteri fecit.

This offence of May em is under all fe­lonies deserving death,Co. Litt. 127. a. and above all other inferiour offences, so as it may be truly said of it, that it is, Inter crimina majora minimum & inter minora maximum.

Rape, 3 Of Rape. is the violent deflouring of a Woman against her will; and this offence is felony, as well in the principal, as in his Aiders, vide 11. Hen. 4. c. 13. 1. E. 4. c. 1. West. 2. c. 13. Cromptons Justice of Peace f. 43, 44. But my Lord Coke defines it thus: It is when a man hath carnal knowledge of a woman by force,Co. Litt. 123. b. and against her will, or Rape is felony by the Common-Law, declared by Parliament for the unlawful and carnal know­ledg, and abuse of any woman above the age of ten years against her will,Co. 3 Instit. [...]. 60. or of a woman child under the age of ten years, with her will, and the offender shall not have the benefit of Clergy. Vide 18. Eliz. c. 6.

If the party that is ravished,Stamf. 24. conceive by the Ravisher a child at the time of the Ravishment, this is no Rape, because she could not conceive, unless she assent.

Bracton in 24th chapter of his third book sheweth, that by the Antique Law of King Athelstan, He that meeting a Virgin sole, or with company, did but touch her un­honestly, was guilty of breaking the Kings Edict; It against her will, he threw her on [Page 54] the ground, he lost the Kings favour; if he discovered her, and cast himself upon her, he lost all his possessions: if he lay with her, he suffereth Judgement of life, and member: yea, if he were an Horse-man, his horse lost his tail and main. His hawk likewise lost he beak, Tallons and train. And the virgin had in recompense all his Land and money by the Kings Warrant. This was in the King Athestans dayes; But in Bractons time, it seemeth that these kind of Ravishers were otherwise punished, they lost their eyes and privy members. Co. Litt. 123. b. 29. H. 6. Tit. Coron. 17 Bracton lib. 3. f. 147.

The Civil Law:D. 48. 6. 4▪ Punitur Lege Julia de vi publica, qui puerum, vel foeminam, vel quem­quam per vim stupraverit.

Hitheto of the offences, that touch the body and members; viz. Battery, Mayhem, and Rape.

3. Of those Offences that dispoil men of their property.

Those Crimes or pleas of the Crown, that deprive others of their property, are two, § Furtum, or Theft, and Burning of Houses.

1. Of Theft.

In Theft are to be considered 3. things, the Etymology of the word Furtum, the definition, and its several kinds▪

[Page 55] Furtum,1. The Etymolo­gy. a furvo, id est, nigro dictum La­beo ait: quod clam & obscuro fiat, & plerum­que nocte, vel a frraude, ut Sabinus ait: vel a ferendo & auferendo:D. 47. 2. 1. Just. 4▪ 1, 2. vel a Groeco ser­mone, qui [...] appellant fures: Imo & Groeci [...] id est, a ferendo [...] dixerunt.

Bracton thus defines it, 1. The de­finition. Furtum est secun­dum Leges, contrectatio rei alienoe fraudulen­ta, cum animo furandi, invito illo Domino, cujus res illa fuerit. Lib: 3. f. 150.

The Civilians thus: Just. 4. 1. 1. Furtum est contrecta­tio fraudulosa, lucri faciendi gratia, vel ipsius rei,D. 4. 7. 2. 1. 3. vel etiam usus ejus, possessionisve, quod lege naturali prohitum est admittere,

That Theft is forbidden by the Law of nature, is manifest by these Authors.

1. Cicero: In vita sibi quemque petere quod pertineat ad usum non iniquum est: alteri sur­ripere, jus non est.

Theft generally taken,3 Its spe­cies or kinds. doth comprehend Larceny, Robbery, Burglary, and Pyracy: of these in order.

1. Of Larceny.

Larceny, by the Common Law, is the felonious and fraudulent taking, and carry­ing away by any man or woman,Co. 3. Inst. 107. of the meer personal goods of another, neither from the person, not by night in the house of the owner: This Larceny is twofold, the one so called Simply, and the other Pe­tit, or Little Larceny.

The first is where the thing stollen ex­ceeds [Page 56] the value of 12. pence, and that is felony.

The other (which is called little, or pe­tit Larceny) is where the thing stollen doth not exceed the value of 12. pence, and that is not felony.

From the Description and Division of Larceny, I proceed to propose these follow­ing Queries, with Resolutions on them.

Whether Larceny can be committed,Quaest. where there is a Bailement, or Delivery, by the owner of the thing?

Larceny is perpetrated by an actual taking:Resp. for an Indictment, Quod felonice abduxit is not good, because it wanteth coepit. By taking, and not Bailement or delivery, for that is a Receipt, and not a taking: and therewith agreeth Glanvil, Lib. 10. c. 13. Furtum non est ubi initinm habet detentionis per dominum rei; But this Rule of Glanvil has its exceptions; as appears by these Cases in our Law.Co. 3. Inst. 107. 13. E. 4. 9. If a Carryer hath a bale or pack of Merchan­dise delivered unto him to carry it to an ap­pointed place, and after he take the whole pack animo furandi, this is Larceny: for the delivery had taken his effect, and the privity of the Bailement is determined; so if he open the pack, and take any thing outFurtum sine affectu furaudi, non com­mittitur. animo furandi, Just. 4. 1. 7. 'tis Larceny.

If a Taverner set a piece of plate before a man to drink in it, and he carry it away, this is Larceny: for it is no Bailement, but a special use to a special purpose.

To conclude,13. E. 4. 9. Perkins sect. 191. our Law does make a di­stinction between a Possession and a Charge; [Page 57] for when I deliver goods to a man,21. H. 7. 15, a, 12. H. 7. 15. a. 3 H 7. 12. he hath the possession of the goods, and may have an Action of Trespass, or an Appeal, if they be taken or stoln out of his possession. But my Butler or Cook,Cro. 1. part Holi­day. vers. Hickes. 638. that in my house hath charge of my vessel or plate, hath no pos­session of them, nor shall have an Action of Trespass or an Appeal, as the Baily shall, and therefore if they steal the plate or ves­sel, it is Larceny: And so it is of a shep­heard, for things be in onere, & non in possessione Promi, Coci, Pastoris, &c.

Whether of goods found and converted animo furandi, Quaest. 2. Larceny can be committed?

If one loose his goods,Resp. and another find them, though he convert them animo fu­randi, to his own use, yet it is not Lar­ceny, for the first taking is lawful.

So if one find Treasure Trove,22. Ass. pl. 99. 22. c 3. Cor. 265. Waif, or Stray, and convert them cum affectu furandi: it is no Larceny, both in respect of the finding, and also for that Dominus rerum non apparet: And non esse, & non apparere tantundem valent quoad eum, cui non ap­paret.

Whether an Infant,Quaest. that is under the age of discretion, can commit Larceny?

An Infant,Resp. until he be of the age of 14, which in Law is accounted the age of dis­scretion cannot commit Larceny, or other felony;Co. Litt. 247. b. Co. 3. Inst f. 4, & 108. for the principal end of punishment is, that others by his example may fear to offend: But such punishment can be no ex­ample to Infants, that are not of the age of discretion▪

[Page 58] But it appears by Lambard f. 2. nu. 7. that the Law was heretofore thus: Infans decem annorum furti reus censeatnr. But having given you a determination according to our Law, I will mention the Law of the Ro­mans and Greeks.

1. The Civil Law: Quaesitum est, an Im­pubes rem alienam amovendo, furtum faciat? Et placuit, quia furtum ex affectu furandi consistit,Just. 4. 1. 14. D. 47. 2. 23. Dt furtis. ita demum obligari eo crimine im­puberem, si proximus pubertati sit, & ob id intelligat se delinquere.

Impuberem furtum facere posse, nisi jam dolis capax sit, Julianus lib. 22. Digest. scripsit. for Aetatis habetur ratio in delictis.

2. The Law of the Greeks: Aelian lib. 5. cap, 16. Varr. Hist. hath this story: When a certain Boy, who had stoln away a golden plate, that fell from Diana's Crown, was brought in Judgment before the Areopagitae: Those Judges, caused Cocke-Hall, Bones, Rat­tles, and the golden plate to be laid before the Child, in whom perceiving an inclina­tion again to the golden plate, rather then to the Rattles and other things more sui­table to his childhood, without pitty to his Infancy, they condemned him to death, as a Sacrileger, thinking it fit to crop that sin and wickedness, which they discerned to be in him, being yet but in the blade, and herbe.

Whether a Feme Covert can be guilty of Larceny?Quaest. 4.

If a man and his wife commit Larceny joyntly,Resp. the feme can neither be principal [Page 56] nor accessary, but it shall be wholly ad­judged the husbands fact, because the Law intends her to have no will, in regard of the subjection and obedience she owes to her husband: But a woman by her self, without the privity of her husband,Stamford. 26. 2. E. 3. Cor. 160. Fitzh. may commit Larceny or other felony, to become either principal or accessary: As if she steal goods,The Wo­mans Law­yer lib. 3. sect. 43. or receive thieves to her house, &c. and if the husband as soon as he perceives it, waive and forsake their company and his own house, in this case the womans offence makes not felony in the Baron. But if the Baron commit felony, his wife not ignorant of it, may keep his company still notwith­standing, and not be declared accessary.

Note,Stamford lib. 1. c. 19. that a woman cannot be thief of her husbands goods, if she take and give them away, the Receiver is no felon.

Whether Larceny can be committed of a thing,Quaere 5. that is delivered by Replevin.

If a man seeing the horse of B.Resp. in his pa­sture, and having a mind to steal him, comes to the Sheriff,Co. 3. Inst. 108. Co. 2. Inst. 242. Co. lib. 13. Sprat and Heales. and pretending the horse to be his, obtaineth the horse by Replevin, yet this is a felonious and fraudulent taking, as it was resolved by the Judges, as Catlin Chief Justice reported in the Kings Bench Pasch. 15. for the Replevin was obtained in frau­dem Legis; And fraus Legi fit, ubi quod fieri noluit, fieri autem non vetuit, id fit.

Whether the removal of things felleo ani­mo, Quaere 6. from one room to another, in the same house, can be Larceny?

The removing of things taken,Resp. though [Page 60] they be not carried away, is Larceny as if a Guest take the coverlet or sheets of his bed, and rising before day, take the coverlet or sheets out of the chamber, where he lay,21. Ass. Pl. 39. Co. 3. Inst. 108. & 109. into the Hall, to the intent to steal them, and went to the stable, to fetch his horse, and the Hostler apprehended him, and this was adjudged Larceny: and the coverlet or sheets were carried away, to the Hall, albeit they were still in the house of the owner.

So if a mans horse be in the close, and one taketh him, and as he is carrying him away he is apprehended,Justice Dalison's Report. before he getteh out of the close, yet this is sufficient to to make it Larceny.

Whether Larceny can be commited of per­sonal goods,Quaere 7. that savour any thing of the Realty?

Of personal goods,Resp. if they savour any thing of the Realty, no Larceny can be com­mitted, as taking apples out of an Orchard, growing upon the tree, or grass standing on ground, &c. though they be taken with a felonious intent, is not felony, for that they are parcel of the freehold: But if the owner cut the grass, or gather the fruit, then Larceny may be committed of them.

So it is of a Box or Chest with Charters, no Larceny can be committed of them,10. E. 4. 14. Co. lib. 8. Ca­leyes Case. 33. b. be­cause the Charters concerne the Realty, and the Box or the Chest, though it be of great value, yet shall it be of the same nature, the Charters be of: Et omne majus dignum trahit ad se minus.

[Page 61] Whether Larceny can be committed of Winding sheets about dead Bodies?Quaere 8

At the Assizes at Leicester, Resp. the Case was this: One William Haine had in the night digged up the Graves of divers several persons and took the Winding sheets from the Bodies,10. Jac. Regis; Haynes Case. and buried the Bodies again: and Sr. Edward Coke, advising hereupon for the rareness of the Case, consulted with the Judges at Serjeants-Inn in Fleet street, where they all resolved, ThatMors est, cum quis e vivis ex­cessit, qua jus omne extingui­tur qued personae co­heret. although the dead Body is not capable of any property, yet the pro­perty of the sheets must be in some body, and therefore in the Executors, Admini­strators, or other owner of them: And according to the Judges resolution, he was indicted of felony at the next Assizes, but the Jury found it but petit Larceny, for which he was whipped, as he well de­served.

Whether a man may commit Larceny of his own goods?Quaere

If a man doth Baile or send his goods to another,Resp. although he hath the general property,7. H. 6. 43. Cro. 1. part. Staf­ford. Vide Poole. Co. 3. Inst. f. 110. yet may he commit Larceny of them, by the felonious taking and carry­ing them away, and in Judgment of Law, is said in this Case to take the goods of another: For the Bailer hath Jus proprie­tatis, and the Bailee hath Jus possessionis, or a special property. But let us see what the Civil Law saies in such Cases.

Aliquando etiam suae rei furtum quis com­mittit:Inst. 4. 1. 12. veluti si debitor rem, quam Creditori pignoris causa dedit, subtraxerit.

[Page 60] Si is qui rem commodasset,D 47. 2. 59. De Commoda­to. eam rem clam abstulisset, furti cum eo agi non potest, quia suum recepisset, & ille commodati liberatus esset. Hoc tamen ipsa accipiendum est si nul­las retinendo causas is cui commodata res erat, habuit. Nam si impensas necessarias in rem commodatam fecerat, interfuit ejus potius per Retentionem eas servare, quam ultro commo­dati agere. Ideoque furti actionem babebit.

1. Of Robbery.

Robbery is (saies Coke) a felony by the Common Law, committed by a violent as­sault, upon the person of another, by put­ing in fear, and taking from his person his money or other goods of any value what­soever: Or it is (saies another) a felonious taking away of another mans goods from his person or presence, against his will, putting him in fear, and of purpose to steal the same goods. We call it Roberia, & Ra­pina, and the Thief Raptor.

Out of which descriptions, the Reader may observe these special circumstances: 1. That it is not Robbery▪ 5. Eliz. Oyer 224. b. unless the party be put in fear, as by assault and violence, And this circumstance of fear, maketh the difference between a Robber and a Cut-purse: both take it from the person, but this latter takes it clam & secrete, without assault, and putting in fear, The latter by violent assault, and putting in fear.

2. That the word (taking) necessarily [Page 61] implyeth that the Robber must be in pos­session of the thing stoln;Co. 3. Inst. f. 69. for example, If the bag or purse of the true man be fastned to his girdle, &c. and the Robber more easily to take the bag or purse, do cut the girdle, whereby the bag or purse, falleth to the ground, this is not taking, for the Thief had never any possession thereof; but if the Robber had taken up the bag or purse, and in striving had let it fall, and never took it again, this had been a taking, because he had it in his possession; for the continuance of his possession is not required by Law.

3. Though Robbery is so called, because the goods are taken de la robe, from the Robe,14. E. 3. Cor. 115. that is from the person; yet if the true man seeking to escape for the safeguard of his money, cast it into a bush, which the Robber perceiving; This is a taking in Law from the person, because it is done at one time.

But, the Quaere may be, Whether the Thieves reception only by such a taking in Law, as to make it Robbery? It is answered, That a Thief's reception will make it Rob­bery; As if Thieves rob a true man, and find but little about him, take it, this is an actual taking, and by means of death, compel him to swear upon a book to fetch them a greater sum,44. E. 4. 14. 4, H. 4. 2. which he doth, and deliver unto them, which they receive, this is a taking in Law by them, and adjudged Robbery: for fear made him to take the oath, and fear continuing, made him bring the money, which amounteth to a taking in Law.

[Page 64] 4,14. E. 3. Cor. 115. 22. Ass. pl. 39. and lastly: That an assault only to rob without taking some money or goods is no felony, for somewhat must be taken.

Touching Robbers take somewhat of the Civil Law,Just. 4. 2. De vi bo­norum ra­ptorum. Qui vires alienas rapit, tenetur quidem etiam furti: Quis enim magis alienam rem invito domino contrectat, quam qui vi rapit?

Non prodest ei qui ui rapuit,D. 47. 8. 5. De re­stitutione rei. ad evitandam poenam si ante judicium restituat rem quam ra­puit: Multo minus (saies Gothofredus on this Text) si poeniteat post delictum; vere enim ad evitandam poenam sola poeniteutia sufficit. Cur? plus est rem restituere, quam poenitere, & ita tenent Doctores omnes comuniter.

3. Burglary.

Touching Burglary, there are 3 matters worthy of observation: viz 1. The Etymo­mology or origination of the word. 2. Its Definition: 3. Resolutions concerning this offence.

The word Burglary, 1. The E­tymology. is derived of two words Burgh and Laron, Burgh signifying an House,Co. lib. 4. f. 39. and Laron signifying a Thief, as it were a House Thief.

This crime,Brooke's Case. according to the acceptance of our Common Law is thus defined.

It is when one breaketh and entereth into the house of another in the night, with a felonious intent to rob or kill, or to do some other felony; in which cases, although he [Page 65] carry away nothing, yet it is felony, for which he shall suffer death.

The Resolutions that are given upon this offence, are these following.

1. Touching fraction and entry: If the door of a mansion house stand open,4. The Re­solutions. and the Thief enter into the house with a pur­pose to steal, this is a breaking of the house in Law, and no Burglary, because there must be an actual breaking, for the words of the Indictment are, Felonice & Burgla­riter fecit, &c. which are to be understood of an actual breaking of the house, and not of a breaking in Law.Co. 3. So it is if the window of the house be open,Inst. f. 64. and the Thief with a hook, or other engine draweth out some of the goods of the owner: this is no Burglary, because there is no actual breaking of the house. But if the Thief breaketh the glass of the window, and with a book or other engine draweth out some of the goods of the owner; this is Burglary, for there was an actual breaking of the house.

If divers come in the night to do a Bur­glary, and one of them breaketh and enter, the rest of them standing neer to the door,13. H 4. 13. or about other part of the house, &c. to watch that no help shall come to defend the owner, this is Burglary in all.

But sometimes Burglary may be committed by entry without any breaking: For ex­ample; if a servant will conspire with other men to rob his Master, and to that intent [Page 66] he openeth his Masters doors and windows in the night for them, that they come into the house by that way, this is Burglary in the strangers, and the servant is a thief; but no Burglar. And this was the opinion of Manwood Chief Baron of the Exchequer, at the Quarter Sessions holden at Canter­bury in January 1579. 21 Eliz.

2. Touching Mansion houses.

If upon accident a man and all his Fa­mily are out of the house, and one in the interim breakes the house, and commit fe­lony, it is Burglary, although neither the owner nor any of his Family is in the house, for the Indictment of Burglary is Domum­mansionalem, Co. Lib. 4. Brokes Case. f. 39. &c. fregit, &c. and this is do­mus mansionalis: And so it was resolved 38. of Eliz. where a man hath two mansion houses, and servants in both, and in the night when the servants are out, &c. the house is broken, tis Burglary.

But whether a Church, a Booth in a Fair, or a Chamber of an Inns of Court, may be termed Domus mansionalis? It is answered;

1. As to a Church: If a man do break and enter into a Church in the night with in­tent to steal, this is Burglary, and Sacri­ledge; for Ecclesia est domus mansionalis Omni­potentis Dei.

Concerning this horrible crime of Sacri­ledge, I shall present some learning out of Justinian and Seneca.

Sunt Saerilegi qui publica Sacra compila­verunt. [Page 67] At qui privata Sacra,Qui sunc Sacrilegi vel non.vel Aediculas incustoditas temptaverunt, amplius quam fu­res, minus quam Sacrilegi, merentur. D. 48. 13. 9. 1.

Quisquis id, sayes Seneca, quod Deorum est, sustulit & consumpsit, atque in usum suum convertit, Sacrilegus est.

Sacrilegii poenam debebit Proconsul pro qua­litate personae,Poenas Sa­crilegii▪ proque rei Conditione, & tem­poris, & aetatis, & sexus, vel severius vel clementius statuere. Et fcio multos & ad be­stias damnasse Sacrilegos: nonnullos etiam vivos exussisse, alios vero in furca suspendisse. D. 48. 13. 6. Sacrilegi capite puniuntur. D. 48. 13. 9.

2. At to a Booth or Tent.

A Tent or Booth in a Fair or Market, is not Domus mansionalis, but of another name or kind; but that is provided for by the Statute 5. E. 6. c. 9. whether the rob­bery be done in the night or in the day, the owner, &c. being within the same, sleep­ing or waking.

3. As to Chambers, belonging to Inns of Court.

A Chamber of an Inns of Court,Cro. 3. part. Evans and Finches Case. or Chancery broken open, is said to be Domus mansionalis of him who is the owner of the said Chamber.

Thus mueh touching the Mansion houses.

3. Touching the intention of the Party.

If a man be Indicted, that he in the night time did feloniously break the house of I. 13. H. 4: 7. S. ad verberandum ipsum I. S. this is no Burglary, because it was but to beat, and not to kill; But if it were ad intersiciendum I. S. then it is Burglary, though he never touched him, for the intent must be to commit felony, and not trespass or other thing, that is not felony.

4. Touching that which is perpetrated In fraudem Legis.

If Thieves come in the night with hue and cry, pretending that they be robbed, and shall require the Constable to search for the felons, and whilst he goeth with them into some mans house, they bind and rob the Constable and dwellers, this is Bur­glary; for in Judgment of Law,Co. 3. Inst. f. 64. it is their act; and that which is done in fraudem Le­gis, the Law giveth no benefit thereof to the Party.

You see by what has been said before, that Burglary the Common Law restrains to a robbing of a house, by night or breaking in, with intent to rob or to do some other felony; but the like offence committed by day, we call House-breaking, or Robbing, (and not Burglary) and this kind of felony is provided for by the Stat.39. Eliz: c. 15. of 39. Eliz. That if any man shall break a house by day, [Page 69] and take away thence money or goods, to the value of five shillings, or more in any part of the dweling house, or Out-house, be­longing to the same, though no person be therein, for this felony he shall lose the benefit of his Clergy; so as for this offence the party shall suffer death, as in case of Burglary

Upon this Law, happened this Case fol­lowing:

Evans and Finch were arrigned at the Gaole delivery of New-Gate: for that they about 12. a clock in the fore-noon, brake open Domum mansionalem Hugonis Audeley, Cro. 3. part. Evans and Finches Case. in the Inner Temple, no person being in the said house, and stole from thence 40. pounds. And upon evidence it appeared, that the said Evans by a ladder climbed to the up­per window of the said Audeley's chamber, and took out thereof the said 40. pounds: And that the said Finch stood upon the lad­der in the view of the said Evans, and saw Evans in the chamber, and was assisting to the committing of the said robbery, and took part of the money. And all this mat­ter being found, it was adjudged, because the said Finch did not enter into the cham­ber, that he was not within the Statute of 39. Eliz. which takes away Clergy, where an house is broken open, and the robbery is above the value of five shillings, no person therein, that he should have his Clergy, which was allowed him. And as for Evans the special verdict found, that he was in [Page 70] the chamber of Hugh Audeley, in the Inner Temple, and that the robbery was com­mitted between 12, and one of the clock in the day time, no person being within the chamber at the time of the breaking thereof, but that divers persons were in the Inner Temple Hall, and in other places of the house: And whether this be a breaking open the house, and taking of goods above the value of five shillings; nnulla persona, being within the house, and within the said act of 39. Eliz. they prayed the discretion of the Court? And it was resolved upon this special verdict (being re­moved by Certiorari into the Kings Bench, and the prisoner removed by Habeas corpus) that this breaking open the chamber, and taking 40. pounds out thereof, nulla per­sona being therein (although there were divers persons in other parts of the house) was within the Stat. of 39. Eliz. which takes away Clergy from such offenders: Wherefore Clergy was denyed to the said Evans, and Judgment given in the Kings Bench, that he should be hanged.

4. Pyracy.

The word Pyrat, Co. Lit. 391. a. 3. Instit. f. 113. in Latine Pirata, is de­rived from the Greek word [...], which again is fetcht from [...], a transeundo mare, of roveing upon the Sea, and therefore [Page 71] in English a Pyrate is called a Rover, and a robber upon the Sea.

Having shewed the Etymology, I pro­pound these Questions with their resoluti­ons touching Piracy.

Whether Piracy were anciently treason?Qu. 1.

Before the Statute of 25.Resp. E. 3. c. 2. De proditionibus, if a Subject had committed Piracy upon another, this was holden to be Petit treason,40. Ass. pl. 25. for which he was to be drawn and hanged: because Pirata est hostis humani generis, and it was contrae Ligeantiae suae dehitum; but since the aforesaid Satute, this is no treason in the case of a Subject.

Whether Piracy can alter property?Qu 2.

Piracy does not change property no more then theft at Land.Resp. Hobart's Reports f. 78.

When goods are tortiously taken upon the Sea by Piracy,Cro. 1. part. Anonymus f. 685. it gaineth not any pro­perty in them against the owner; and being sold on the Land, unless it were in Market overt, doth not alter the property.

The Civil Law speakes thus:

A Piratis,D. 49. 15. 19. 2. aut latrenibus capti, liberi per­manent.

Qui a latronibus captus est,D. 49. 15. 24. servus latronum non est, nec post liminium illi necessarium est.

Piratae, quae capiunt, non mutant domi­nium. Grotius l. 3. c. 9. n. 16. De jure belli.

Whether Attainder for Piracy doth work corruption of blood,Qu. 3. Resp. or forfeiture of Lands?

If Piracy be tryed before the Lord Ad­miral in the Court of the Admiralty, accord­ing to the Civil Law, and the delinquents [Page 72] there attainted, yet shall it work no corru­ption of blood, nor forfeiture of his Lands, otherwise it is, if he be attainted before Commanders by force of the Statute of 28. H. 8. c. 15.

Whether a Pardon of all felonies shall ex­tended to Piracy?Qu. 4.

About the end of the Reign of Queen Elizabeth, Resp. certain English Pirates that had robbed on the Sea Merchants of Venice in amity with the Queen,Co. Lit. 39. a. being not known, obtained a Coronation Pardon, whereby amongst other things, the King pardoned them all felonies: It was resolved by all the Judges of England, upon conference and advisement, that this did not pardon the Piracy;Hill. 2▪ Jac. Regis. for seeing it was no felony, whereof the Common Law took Conusance, and the Stat. of 28. H. 8. did not alter the of­fence, but ordained a Tryal, and inflicted punishment; therefore it ought to be par­doned especially, or by words, which tan­tamount, and not by the general name of felony, and according to this Resolution, the delinquents were attainted and exe­cuted.

5. Burning of Houses.

Burning is a felony at the Common Law, committed by any that maliciously and vo­luntarily in the night or day,Co. 3. Inst. f. 66. burneth the house of another.

Out of which we may observe two cir­cumstances.

[Page 73] First; To make it felony, it must be done with malice and will; for if it be done by mischance, or negligence, it is no felony. But whether the Law doth sometime im­ply that the house was burnt maliciously, and voluntarily, may be a Quaere? It is answered, it does: As if one intend to burn the house of A. only, and not the house of B. and yet in the burning the the house of A. the house of B. is burnt, in this case the burning of the house of A, is felony,Co 3. Inst. f. 67. Plowd. Com. f. 475. because it proceeded of the malicious and voluntary burning of the house of A, and the event shall be coupled to the cause, which was voluntarily and malicious: And the rule is, Involuntarium ex voluntario or­tum habens, moraliter pro voluntario habetur.

Secondly; to make it felony, it must be the house of another, and not his own house: As for example:

One W. Holmes was indicted in London, for that he being possessed of an house in London, in Throgmorton street,Cro. 3. part. Holmes's Case. f. 377. in such a ward for six years, the remainder to Is. for three years, the Reversion to the Corpora­tion of Haberdashers in fee: He vi & ar­mis felonice, voluntarie, & malitiose igne combussit, &c. his own house: Upon this being arraigned at New-Gate, he was found guilty: add before Judgment this Indictment was removed by Certiorari into the Kings Bench, and being argued by Grimston, that it was not felony.

By Richardson, Jones, and Berkeley it was [Page 74] held that it was not felony to burn an house, whereof he is in possession, by vertue of a Lease for years: For they said, that burn­ing of houses is not felony, unless that they were aedes alienae: And therefore Britton, and Bracton mention that is felony to burn the house of another: and the Year-Books and Co. lib. 11. Powlters Case, which say, that burning of houses generally are to be intended de aedibus alienis, & de non pro­priis: And although the Indictment be ea intentione ad comburendum felonice, &c. yet intent only without fact, is not felony: Also Barkeley and Jones held, that it cannot be said vi & armis, when it is in his pos­session; and therefore it was resolved that it was not felony, wherefore he was dischar­ged thereof: But because it was an exor­bitant offence, and found, they ordered that he should be fined 500. pounds to the King, and imprisoned during the Kings plea­sure, and should stand upon the Pillory, with a paper upon his head, signifying the offence at Westminster, and at Cheap-side, upon the Market day, and where he committed the offence, and should be bound with good sureties to his good behaviour during life.

Note,22 & 23. Car. 2. nunc Re­gis. there is a late Act made, to pre­vent the malicious burning of houses, Stackes of Corn and Hay, and killing and maiming of Cattel.

Touching burning, the Civil Law speaks thus:

Qui aedes acervumque frumenti juxta do­mumD. 47. 9. 9. [Page 75] positum combusserit, vinctus verberatus, igni necari jubetur, si modo sciens prudensque id commiserit. Si vero casu, id est, negligen­tia, aut noxiam sarcire jubetur, aut si minus idoneus sit, levius castigatur.

Si fortuito incendium factum sit, D. 49. 9. 11. venia in­diget, uisi tam lata culpa fuit, ut Luxuriae, aut dolo sit proxima: Hitherto of criminal Pleas, that are perpetrated against the King and Common-wealth mediately, but prin­cipaliter in singulas personas.

I proceed to those that immediately touch the King, and his Crown; and they are:

1. High Treason.Crimen laesae Maje­statis.

Stamford telleth us that the King is the Preserver, nourisher and defender of all his People, and that by his great travel, study and labour, his People only enjoy their Lives, Lands and Goods: And as the body of Man cannot live without a Head, but will fall to the ground, so the Realm cannot be go­verned without a Head, which is the King. Agreable to that of Seneca, Ille est vinculum, per quod Respublica cohaeret, &c. And therefore we his loving Subjects, are obliged to watch for that him, wakes for us; And, primum virtu­tis opus est, servare servantem caetera.

If so, what an abominable thing must it be, to be a violator of Kingly Majesty: Crime de Majesty (sayes the Mirror) est un peche horrible fait al Roy, &c. Tacitus calls Crimen Majestatis, vinculum, & neces­sitatem silendi; Omnium accusationum comple­mentum: [Page 76] And in the Civil Law, it is said thus: Proximum Sacrilegio crimen est, D. 48. 4. 1. quod Majestatis dicitur▪ id est, crimini quo divina Majestas pulsatur.

High Treason does extend to several parts or kinds, viz. Death, to Violation, to Leaving of Warr, to Adhering to the Kings Enemies, to Counterfeiting the Great Seal, Privy Seal, and the Kings Coyn, to the bringing into this Realm counterfeit Money to the similitude of His Majesties Coyn, of these several parts in their order.

1. Touching Death.

1. To compass or imagine the death of the King, is Crimen laesae Majestatis, as appears by Britton and Fleta.

Briiton thus: Grand Treason est a com­passer nostre mort.

Fleta hath this words: Si quis mortem Regis ausu temerario machinatus fuerit, &c. quamvis voluntatem non perduxit ad ef­fectum.

To depose the King, or to take the King by force and strong hand▪ and to im­prison him untill he hath yeilded to certain demands; this is a sufficient overt Act, to prove the compassing and imagination of the death of the King: for this is upon the matter to make the King subject, and to despoil him of his Kingly Office of Royal Government. And so it was resolved by all the Judges of England Hill▪ 1. Jac. Regis, in [Page 79] the Case of the Lord Cobham, Lord Gray, Watson and Clarke Seminary Priests.

So if divers conspire the death of the King, and the manner how, and thereupon provide weapons, powder, poyson, assay harness, send Letters, &c. or the like for execution of the Conspiracy, this is a suffi­cient overt act to prove the compassing and imagination of the Kings death.

If any man shall attempt to make him­self so strong, that the King shall not be able to resist him, he is guilty of Rebellion. In the like manner, the Law interpreteth that in every Rebellion there is a machina­tion against the life of the King and his deposing: For a Rebel will not suffer that King to live or reign, which may afterwards punish or revenge such the treason or Re­bellion. These things are confirmed:

1. by the Imperial or Civil Law,Vide D. 48. 4. 1. ad Legem Ju­liam Ma­jestatis. whereby to do any thing against the safety of the Prince is holden to be treason.

2. By the force of reason, because it can­not be that which hath once given Law to the King, should ever permit that the King should recover his former Authority, or live, least at any time he should reco­ver it.

3. By examplss drawn out of our English History, as of Edward the Second, and Ri­chard the Second, who being by force of Armes gotten by Subjects into their power, were not long after deposed also, and made away.

[Page 78] The Civil Law; Quamvis regulariter ra­tione solius consensus nemo ad poenam obligatur; sed secuto demum actu: Aliud tamen obtinet in crimine in Principe, in quo voluntas, puni­tur; sed intellige talem voluntatem, cum qua conjunctum est initium facti, i.e. factio, vel con­juratio: Sola enim & nuda voluntas puniri nequit.

Note, that there is difference taken by our Law between felony and High treason; for it is not felony, unless there be some act done: Non efficit conatus, nisi sequatur effe­ctus: But if one compass or imagine the death of the King, who is the Head of the Common-wealth, and declares his com­passing or imagination, by words or Writ­ing, it is High treason: Doct. and Stud. lib. 2. cap. 41. Co. 3. Inst. f. 5. 12. H. 8. 36. b. 13. H. 8. 13. Bendlones Rep. Smith v. Spurle.

And therefore these following words were adjudged High treason, viz.

If the King dye without Issue Male, that he would be King: and also the party ar­raigned spake, that if the King should com­mit him to Prison▪ that he would kill him with his dagger.

So one Crohagan, an Irish man was ar­raigned of Treason; for that he being the Kings Subject at Lisbone in Spain, Cro. 3. part. Crohagans Case. f. 332. used these words, I will kill the King (innuendo Do­minum Carolum Regem Augliae) if I may come unto him; and that in August 9. Car. Regis, he came into England for the same purpose. To this he pleaded Not-guilty, [Page 79] and was tryed by a Jury of Middlesex, and it was directly proved by two Merchants, that he spake these words at Lisbone in Spain, in great heat of speech, with Captain Baske, and added these words, Because he is an Heretick; and for that his traiterous intent and the imagination of his heart, is declared by these words, it was held High treason by the course of the Common Law, and within the express words of the Statute of 25▪ E. 3. And he coming into England, and being arrrested by Warrant for this cause, most insolently put his finger into his mouth, and scornfully pulling it out, said, I care not this for your King, &c. all which speeches and actions, though he now de­nyed, the Jury found him guilty, where­upon he had Judgment accordingly. He confessed that he was a Dominican Fryer, and made Priest in Spain. And although this, and his returning into England, to se­duce the Liege-People, were Treason by the Stat. of 23. Eliz. yet the Kings Atturney said, he would not proceed against him for that cause, but upon the Stat. of 25. E. 3. of Treason.

So one Henry Challercomb was indicted of Treason for words, and was found guilty, and executed.

So John Williams was also indicted, found guilty, and executed, for writing a Trea­sonable Book, called Balaam [...] Case. These two last Presidents you may see cited in Pyne's Case, in Crokes third part of his Reports.

[Page 80] It is commonly said, That bare words may make an Heretick, but not a Traitor, without an overt Act: And therefore to make compassing by bare words or sayings, High treason, it must be by some particular Statute, such were the Statutes of 26. H. 8. c. 13. 1. E. 6. c. 13. 1. & 2. Phil. and Mar. c. 9. 1. Eliz. c. 6. 13. Eliz. c. 1. & 14. Eliz: c. 1. but all these are either repealed or ex­pired: yet compassings or imaginations against the King by word,Co. 3 Inst. f. 140. without an overt Act, is an High misprision.

Note, that there is a Law made for the Preservation of His now Majestie's Person and Government,1 [...]. Car. II. Reg. c. 1. against Treasonable and seditious practises (during his natural life, which God long continue) proceeding from Printing, Writing, Preaching, or malicious and advised speaking.

Note further, that to calculate or seek to know by setting of a figure, or Witch­craft, how long the King shall Reign or live,Co. 3. Inst. f. 6. is no Treason, for it is no compassing or the imagination of the death of the King, within the Stat. of 25. E. 3. And this ap­peareth by the Judgment of the Paliament in 23. Eliz▪ whereby this offence was made felony, during the life of Q. Elizabeth, which before was punishable by fine and imprison­ment.

But Scipio Gentilis in his first Book De con­juratione sayes; De vita Principis inquirere praesertim per Astrologos capitale esse: neque hoc solum, sed etiam de ea dubitare, vel de­sperare [Page 81] pro crimine Majestatis bahitum esse; si ea desperatio indiciis esset aliquibus pate­facta.

Thus much of the King himself.

If any do compass or imagine the death of the Queen Consort,25. E. 3. c. 2. or Prince, (the Kings Son being Heir apparent to the Crown for the time being) and declare it by some overt Act,De prodi­tionibus. the very intent is Treason, as in case of the King himself.

If a man slay the Chancellor, Treasurer, or the Kings Justices of the one Bench, or the other, Justices in Eyre, or Justices of Assize, and all other Justices assigned to hear and determine,25. E. 3. c. 2. being in their places doing their Offices: And the reason wherefore it is Treason in these Cases is, because sitting judicially in their places (that is in the Kings Courts) and doing their Office in administration of Justice, they represent the Kings Person, who by his Oath is bound that the same be done.

2. Touching violation, or Carnal knowledge.

To violate or to carnally know the Kings Companion,25. E. 3. c. 2. or the Kings eldest Daughter unmarried, or the Wife of the Kings eldest Son, and Heir apparent, is High treason.

The reason that the eldest Daughter only is mentioned in Stat▪ of 25. E. 3. is for that for defaut of Issue Male, she only is inheri­table to Crown.

3. Touching War.

To levy War against our Lord the King is High treason:25. E. 3. c. 2. This was so by the Com­mon Law, for no Subject can levy War within the Realm without Authority from the King; for to him it only belongeth, F. N. B. 113. Co. lib. 2. Wisemans Case f. 15. b. In the Codes of Justinian in extant the Constitution of Valentinian and Valens; Nulli prorsus nobis insciis, atque inconsultis quorum­libet Armorum movendorum copia tribuatur: Huc pertinet illud Augustius: Ordo naturalis mor­talium paci accommodatus hoc poscit, ut susci­piendi Belli anctoritas, atque Consilium peues Principes sit.

If any levy War to expulse Strangers, to deliver men out of Prison, to remove Coun­sellors, or against any Statute,Co. 3. Inst. f. 9. or to any other end, pretending Reformation, this is levying of War against the King, because they take upon them Royal Authority, which is against the King.

So if any with Strength and Weapons, in­vasive and desensive doth hold and defend a Castle or Fort,Co. 3. Inst f. 10. against the King and his Power, this is levying of War against the King within the Statute of 25. E. 3.

One Thomas Bensted was indicted and ar­raigned before special Commissioners of Oyer and Terminer in Southwark, Cro. 3. part. Bensteds Case. f. 583. wherein all the Justices and Barons were in Commission, and present; at which time upon Conference [Page 83] with all the Justices, it was resolved;

First, that going to Lambeth House in war­like manner, to surprize the Arch-Bishop, who was a Privy Counsellor, (it being with Drums, and a multitude, as the Indictment was, to the number of 300. persons) was Treason. And▪

Secondly, It was resolved by ten of the said Justices seriatim, that the breaking of a Prison, wherein Traitors be in Durance, and causing them to escape, was Treason, al­though the Party did not know that there was any Traitors three, upon the Stat▪ of 1, H. 6. c. 5

And so to break a Prison, whereby Fe­lons escape, is felony, without knowing them to be imprisoned for such offence.

Note, A Compassing or Conspiracy to levy War, is no Treason; for there must be a levying of War de facto.

4. Touching Adhesion to the Kings Enemies.

If a man be adherent to the Kings Ene­mies in his Realm, giving to them aid and comfort in the Realm,25▪ E. 3. c. 2▪ or elsewhere, it is High treason.

Having given you the words of the Stat. 25. E. 3. I propose these Queries:

Whether the delivery of a Castle or Fort to an Enemy be an Adhering to the Kings Enemy?Qu 1▪

To deliver or surrender the Kings CastlesResp. [Page 84] or Fort by the Kings Captain thereof to the Kings Enemy within the Realm, or with­out for Reward, &c. is an Adhering to the Kings Enemy, and consequently Treason de­clared by the Act of 25. E. 3.

Whether the Aiding or succouring of a Rebel beyond Sea be Treason?Qu. 1.

A,Resp. is out of the Realm at the time of a re­bellion within England, and one of the Re­bels doth fly out of the Ream,Co. 3. Inst▪ f. 10. whom A, knowing his treason, doth aid or succour, this is no Treason in A,13. Eliz. Dyer f. 298. by the Stat. of 25. E. 3. because the Traitor is no enemy.

Ʋtrum Exteri,Qu. 2. qui cum Subditis contra Prin­cipem militant, Rebelles sint habendi?

An Enemy coming in open hostility into England, Resp. and taken, shall be either executed by Marshal Law or ransomed;Dyer 4. Mar. f. 145. a. Co. Lib. 7. Calevins Case. for he cannot be indicted of Treason, for that he was never within the Protection or Ligeance of the King, and the Indictment of Treason saith, Contra Ligeantiam suam debitam.

But if a Subject joyn with a Foreign Ene­my, and come into England with him, he shall not be taken prisoner here,13. Eliz. Dyer f. 298. and ransomed or proceeded with as an Enemy shall, but he shall be taken as a Traitor to the King.

Whether an English Man born consulting with a Foreign Prince, to invade his Country, may be charged with High treason?

A Consultation was had concerning John Story Doctor of Law,Cambdens Eliz. f. 144 & 145. An. 1572. the Duke of Alva's Searcher, whether he, being an English Man born, who in Brabant had consulted with a [Page 85] Foreign Prince about invading his Countrey▪ and had shewed the means of Invasion, might have been charged with High treason? The skilfullest Lawyer affirmed that he might.

Whereupon he was arraigned, and being to be charged with Treason, for that (amongst other things) he had shewed to the Duke of Alva's Secretary the means to invade England, raise Ireland into rebellion, and excite the Scots to break into England; all at once: He refused to submit himself to Tryal, and to the Laws of England, and affirmed that the Judges had no power over him, for that he was not a Subject sworn to the Queen of England, but to the King of Spain▪ But he was condemned according to the ordinary forme of Nihil dicit, Co. Lit f. 129. a. 13. Eliz. Dyer 300. Doctor Story's Case. Co. lib. 7. Calvin's Case. and suffered the death of a Traitor; for that no Man can shake off his Countrey wherein he is born, nor abjure his native saile, or his Prince at his pleasure; Nemo Putriam in qua natus est, exu­ere, nec Ligeantiae debitum ejurare possit. With this Law doth concurre the Civil Law: Ori­gine propria neminem posse voluntate sua exi­mere manifestum est. Cod. 10. 38. 4.

5. Touching Fausonnery.

If a Man counterfeit the Kings Great or Privy Scale,Crimen falsi. or his Money, it is High treason.

All antient Authors agree that this was High treason by the Common Law (as Bra­cton, Britton, Fleta, and the Mirrour.

The Forging of the Kings Coyn is High treason, without utterance of it; for by the [Page 86] Act of 25. E. 3. the Counterfeiting is made High treason.

One Morgan and two others were indicted for Counterfeiting twenty Shilling Pieces of the Kings Coyn;Cro. 3▪ part. Morgans Case 383. and Morgan for utter­ing those Pieces to the Kings Subjects, know­ing them to be counterfeit; and being there­upon arraigned, he pleaded Not guilty. And evidence being pregnant against Morgan, he was found guilty, and the others were ac­quitted: And Judgment given that he should be drawn and hang'd; but not to be quar­tered, according to the opinion of Stamford f. 182.

Note, that by the Stat. of 5. Eliz. to clip, wash,5. El. c. 11. round, or file, for wicked lucre and gain is declared High treason. So by the Statute of 18. Eliz. 'tis enacted, that dimi­nishing,18. E. e. 1. scaling or lighting of the Kings Coyn within this Realm, is High treason.

Touching Money, the Civil Law speaks thus:

Qui falsam monetam percusserint, si id to­tum formare noluerunt, suffragio justae poeniten­tiae absolvuntur. D. 48. 10. 19. De falsa Me­neta.Falsa mo­neta depre­henditur ex mate­ria, ponde­re, & for­ma adulte­rina, Go­thofredus.

Quicunque Nummos aureos partim raserit, partim tinxerit, vel finxerit: si quidem liberi sunt, ad bestias dari: si servi, summe supplicio affici debent, D. 48. 10. 8.

6, and last: Bringing into the Realm Counterfeit Coyn.

If a Man bring false Money into this Realm counterfeit to the Money of England, know­ing the Money to be false, to Merchandise or make payment, in deceit of our Sove­raign Lord the King, and of his People, it is High treason.

But note, that the uttering of false Money in England, though the Person know it to be false and counterfeit to the Likeness of the Coyn of England, is no Treason within the Statute of 25. E. 3. unless he brought it from a Foreign Nation; for the words of the Statute are, Si Home apport faux Money en cest Realm.

Having related the several parts or kinds of Treason, within the Stature of 25. E. 3. I shall add these few Queries touching High treason, and so conclude.

Whether a mad Man may be guilty of High treason.Qu. 1.

The antient Law was,Resp. that if a mad Man had killed, or offered to kill the King, it was holden for Treason; and so it appears by King Alfreds Law, before the Conquest,Co. lib. 4. f. 121 b. Beverleys Case. and in Beverleys Case; for the King is Caput & Salus Reipublicae, & a Capite bona va­letudo transit in omnes, and for this cause Kings Persons are so Sacred, that none may offer them violence, without being guilty of High treason; Et pereat unus ne pereant omnes.

[Page 88] But now by the Statute of 25. E. 3. and by force of the words, Fait compasser ou imaginer la mort; he that is Non compos mentis, and totally deprived of all compassings and imaginations,Co. 3. Inst. f. 6. cannot commit High treason,Co. Lit. 247. b. by compassing or imagining the death of the King: for furiosus solo furore punitur; and furor in the Civil Law is con­tinuata mentis alionatio, qua quis omni intel­lectu caret.

If a Man commit Treason, and confesseth the same, or be thereof otherwise convict, if afterwards he become de non sanae memoriae, he shall not be called to answer; or if after Judgment he become de non sanae memoriae, Co. 3. Inst. f 4. he shall not be executed; for it cannot be exam­ple to others.Lib. 4. Beverleyes Case.

The Civil Law:

Culpam non admittit, qui suae mentis non est.

Si per furorem aliquis parentem occiderit,D. 48▪ 9. 9. 2. impunitus erit, Divi Fratres rescripserunt su­per eo, qui per furorem matrem necaverat. Nam sufficere, furore ipso eum puniri?

Whether an Alien residing here,Qu. 2. can commit High treason?

All Aliens that are within the Realm of England, Resp. and whose Soveraign are in amity with the King of England, Co. Litt. 192. a. are within the pro­tection of the King,Dyer 144. Co. lib. 7. and do owe a Local or Topical obedience to the King, are within the Act of 25. E. 3.Calvins Case. Co. 3. Inst. f. 4 & 5. and if they commit Treason against the King, they shall be punished as Traitours; and the Indictment shall say con­tra Legeantiae debitum.

[Page 89] Whether the killing of a Foreign Ambassa­dour residing here,Qu. 3. be High treason?

Albeit the malicious killing of an Ambas­sabour be justi belli causa, Resp. and contra jus Gen­tium, yet the killing of him is no Treason, within the Stat. of 25. E. 3. until itl be so declared by Parliament, as it was in the Case of Kerby and Algere, who were attainted for the killing of John Imperial, Co. 3. Iust. f. 8. Ambassadour from the State of Genoa; but that Declaration was taken away by the Statute of 1. Mar.

Whether an Ambassadour,Qu. 4. which raiseth Rebellion ahainst the Prince to whom he is sent, may enjoy the priviledge of an Ambassa­dour, and be not subject to punishment as an Enemy?

Such an Ambassadour hath by the Law of Nations,Resp. and by the Civil Law of the Romans, forfeited all the Priviledges of an Ambassa­dour, and is subject to punishment.

If a Foreign Ambassadour, fayes Coke, com­mitteth here in our Realm any crime, which is contra jus Gentium, Hill. 14. Eliz. as Treason, Felony, Ad­ultery, or any other crime which is against the Law of Nations,The Bishop of Rosles Case. he looseth the Privi­ledg and Dignity of an Ambassadour, as un­worthy of so high a Place,Co. 4. Inst. f. 153. and may be pu­nished here as any other private Alien, Bulstrodes Reports. 3d part. The King v. March. and not to be remanded to his Soveraign, but of courtesy.

But if any thing be malum prohibitum, by any Act of Parliament, Private Law or Cu­stom of the Realm, which is not malum in se jure Gentium, nor contra jus Gentium, an [Page 90] Embassadour residing here shall not be bound by any of them: but otherwise it is of the Subjects of either Kingdom, &c. And the reason why private Aliens are bound by our Acts of Parliament,Lib. 2. c. 2. nu. 5. De jure belli ac Pacis. Private Laws and Cu­stoms, is given by the learned Grotius, viz. Quia ad gubernationem Populi moraliter neces­sarium est, ut qui ei vel ad tempus se admiscent, quod fit intrando territorium, ij conformes red­dant ejus Populi institutis.

Whether a Foreign Prince,Qu. 5. by his dwelling and residing here, can commit Treason?

When a Foreign Prince comes with leave into England, Resp. he subjects himself under the Protection of the King of England, and as by well doing he enjoyes the benefit of the Laws, so by ill doing he is subject to the Equity thereof, according to that saying of the Law­ers, He deserveth not the benefit of the Law, which offendeth against the Law. Otherwise better were the condition of a Foreign Prince offending in another Princes Kingdom, than his that reigneth well: He is thought also to be a Subject, though not originary yet tempo­rary, because two absolute Princes in respect of Royal Authority, cannot be in one King­dom at once; and therefore it is a received opinion of the learned in the Laws, A King without his own Dominions (except it be in an Expedition of War) is but a private Man; and consequently can neither confer, nor ex­ercise Royalties.

Moreover it is said, that such a Prince by his offence looseth merum Imperium, his meer [Page 91] and absolute Soveraignty, and that such are subject by their dwelling only and place of abode, might commit Treason, and that a Prince hath power or Jurisdict. over another Prince that is his equal as often as any hath subjected himself under the Judgment of his Equal either by express words or Covert, Contract, or by offending within the Jurisdi­ction of his Equal.

Vide Cambdens Eliz. in 29. year of her Reign, touching the Queen of Scots.

2. Misprision of Treason.

Touching Misprision, 4 things are to be principally observed; The Etymology of the word, its Description, its Division, and the Punishment therefore.

1. The Etymology or Origination of the word:

Misprision, cometh of the French word Mespris, which properly signifieth neglect or contempt; for (mes) in Composition in the French signifieth mal, Co. 3. Inst. f. 36. as mis doth in the En­glish Tongue: as mischance, for an ill chance, and so Misprise is ill apprehended or known.

2. Its Description:

In legal understanding Misprision of treason, is either when one knoweth, that another hath committed treason, and will not disco­ver him to the King or to the Councel, or to any Magistrate, but doth conceal the same; it is when one hath committed some hainous offence under the degree of treason.

3. Its Division:

[Page 92] Mi [...]prision of treason is twofold▪ Passive, called [...] omission [...]is▪ as in concealment, o [...] not discovery of treason▪ And therefore by the Statute of 5. & E▪ 6. concealment or keep­ing secret of any High treason, i [...] declared only Misprision of Treason.

As for example▪ 13. El. c. 2. It is Misprision of High treason in concealing of a Bull from the Pope of Rome.

So the receiving of one that hath counter­feited the Kings Coyn,Dyer f. 296 Coyners Case. and comforting of him, knowing him to have counterfeited the King Coyn, is but a Misprision.

But by the Common Law, concealment of High treason, was Treason, as appeareth in the Case of the Lord Scrope anno 3. H▪ 5, and by Bracton lib. 3. f. 118. b, & 119. a.

And with our Common Law, the words of Isocrates to Nic [...]oles are agreable; viz. Ea­dem poena digni sunt supprimentes hujusmodi faci [...]us, qua facinorosi.

2. Active, called Crimen commissionis, as in committing some heinous offence, under the degree of Treason; as when one fixes an old Seale of a Patent to a new Patent of Non-Residence,37. H. 8. Br. Tit. Treason. this is holden to be a Misprision of Treason only, for it is an abuse of the great Seale, and not counterfeiting of it.

So if a man know Money to be counterfeit, and bring the same out of Ireland hither into England, and utter it in payment, this is but a Misprision,Co [...] 3. Inst. f. 140. and no Treason.

So the compassings or imaginations against the King by word, without an overt Act, is a High Misprision.

[Page 93] 4. The punishment of this offence.

In all Cases of Misprision of Treason, the party offendour shall forfeit his Goods and Dutie for ever, and the profits of his Lands for terme of his life, and to be im­prisoned during life.

From which punishment if any will save himself, that knoweth of any High treason, he ought with as much speed as conveniently he may, to reveal the sa [...]e to the King, or some of his Privy Councel, or any other Magi­strate.

Note, that in every Treason or felony, is included Misprision, and where any hath committed Treason or felony, the King may cause the same to be indicted, and arraigned, but of Misprision only, if he will,

3. Robbing the Kings Treasure.Crimen Pe­culatus.

The Robbing the King of his Treasure,Co. 3. Inst. f. 112. or Money, is accounted Dumnum i [...] aestimabile; for the Kings Treasure is the sinew of War,Co. litt. 90. b. 131. b. and the honour and safety of the King in time of Peace.

The Civil Law doth accord with our Law in this point: Peouniae nervus Reipublicae, seu be [...]i [...]ur it [...]a? Imperium sine vectigalibus nullo modo esse potest. Cicero: Militares expans [...]e, & Hostium [...]icursions multa regent diligentia, & non pos­sunt [...]itra pecuniam haec agi. N. 8. 2. 10. 2.

Fourscore and one persons, (whereof the Abbot of Westminster and 48 of his Monks were part) brake into the Receipt,Co. 4. Inst. f. 112. and felo­niously [Page 94] robbed the King of a hundred thousand pounds: All these fourscore and one were in­dicted of this felony, and committed to the Tower of London, &c. and this was the occa­sion of the new building of both parts of the Exchequer, which were before of antient build­ing, and weak.

The punishment of this crime in the Civil Law, is this:

Peculatus p [...]ena aquae & ignis interdictionem, in quam hodie successit deportatio, continet. Porro qui in eum statum deducitur, sicut omnia pristina jura, ita & bona amittit.

4. Bribery.

Bribery (sayes Coke) is a great Misprision,Crim [...]n Re­petunda­rum. when any man in Judicial place takes any Fee or Pension, Robe or Livery, Gift, Reward, or Brocage of any person that hath to do be­fore him any way, for doing his Office, or by colour of his Office, but of the King only, un­less it be of meat, and drink, and that of small value, upon divers and grevious punish­ments.

Having given you a description of Bribery, I propose these Queries with Resolutions up­on them; and then shew what the Civil Law saith touching Bribery, and Reward.

Whether Bribery can be committed,Quaest. al­though there be no suit depending in fota con­tentioso?

Bribery may be committed not only when a Suit dependeth in foro contentioso, Resp. but also [Page 95] when any in Judicial place doth any thing, vir­tute or colore Officii, though there be no Suit at all.

For example,Co. 3. Inst. f. 148. if the Lord Treasurer for any gift or brocage, shall make any Customer, Controller, or any Officer, or Minister of the King, this is Bribery, for he ought to take nothing in that Case,Laws made con­tra Ambi­tus. by the Statutes of 12. R. 2. c 2. 5. E. 6. 5. 6. Co. Litt. f. 234. a. Co. 3. Inst. f. 154. Hobarts Reports, Roy v. Bishop of Norwich f. 75. but that he make all such Officers, and Ministers of the best and most lawfull Men, and sufficient for their estimation and knowledg. These Laws afore­mentioned, made contra crimen Ambitus are worthy to be known by all; but more worthy to be put in execution, for they prevent Bri­bery and extortion; They that buy, will sell.

Whether this offence of Bribery can be perpetrated,Qu. 2. by one that hath a Judicial place in the Ecclesiastical Court?

The Statute of 5 E. 6. c. 16. doth extend as well to Ecclesiastical Office as temporal,Resp. which concern the Administration and exe­cution of Justice,Co. 3. Inst. 148. Cro. 2. part. and therefore any Chief Judicial Officer Ecclesiastical,Trevous Case. f. 269. taking any thing virtute or colore Officii, for any Office Ministe­rial or Judicial, is guilty of Bribery.

Touching Gifts and Bribery, take notice what the Civil Law sayes:

Non in totum Xeniis abstinere debebit Pro­consul,1. De Xe­niis. sed modum adjicere, ut neque morose in totum abstineat, neque avare modum Xenio­rum [Page 94] excedat, quam rem Divus Severus, & Imperator Antonius clegantissime epistola sunt moderati,D. 4 [...] 16. 6. 3. cujus epistolae verba haec sunt: Quantum ad Xenia pertinet, Audi quid sentimus. Vetus preverbium est, neque omnia, neque quovis tempore, neque ab omnibus. Nam valde inhumanum est, a nemine accipere▪ sed passim vilissimum est, & omnia avarissimum.

Imo non est inhumanum. Nam & munera ex [...]oecant oculos sapientum, ac pervertunt verba Justorum: verum hic agitur (saies Gothofre­dus) de muneribus quae dantur Proconsuli, ut hospiti, non ut Judici.

Et hic aperte Xenia: & ut appellat quoque hic Jurisconsultus, Xeniola, distinguntur a dono & munere, seu mu [...]terum qualitate: Aliud ii est munus, aliud Xenion & Xeniolon.

Lege Julia repetundarum tenetur,2. De Re­petundis. qui cum aliquam potestatem haberet, pecuniam ob ju­dicandum,D. 48. 11. 3. decernendumque acceperit.

Qui munus publice mandatum,D. 48. 11. 9. accept a pecu­nia, rumperunt, crimine repetundarum postu­lantur.

5. Extortion.

Extortion is a Misprision by wresting, or unlawfully taking by any Officer by Colour of his Office, any money or valuable thing of or from any Man, either that is not due, or more then is, or before it be due, Quod non est debitum, Co. Litt. 368. b. vel quod est ultra debitum, vel ante tempus, quod est debitum.

Of this crime it is said, that in no other [Page 95] than Robbery; and another saith, that it is more odious than Robbery; for Robbery is apparent,Co. Lit. 368. b. and hath a face of a crime, but ex­tortion puts on the vizor of vertue, for expe­dition of Justice and the like, and it is ever accompany'd with that grevious sin of per­jury; we call it in Latin Crimen expilationis, seu concussionis.

But the Quaere may be whether Extortion and Exaction are all one? It is answered, They are not, for there is this difference taken between Exaction and Extortion: Extortion is where an Officer demandeth and wresteth a greater summe or reward, than his just Fee: And Exaction is where an Officer or other Man demandeth and wresteth a Fee or re­ward, where no Fee or reward is due at all.

6. Striking in the Kings Courts, where he resides personally, or by Representation.

If any Man in Westminster Hall,Co. 3. Inst. f. 140. or in any other Place, sitting the Courts of Chancery, the Kings Bench, the Common Bench, the Exchequer, or before Justices of Assize, or Justices of Oyer, & Terminer, shall draw a weapon upon a Judge, or Justice, though he strike not, this is a great Misprision, for the which he shall loss his right hand,22. E. 3. 13. and forfeit his Lands and goods, and his Body to perpetual imprisonment; The reason is because it tendeth ad impedimentum Legis ter­rae. So it is if in Westminster Hall, or any [Page 98] other Place, sitting the said Courts there or before Justices of Assize, or Oyer and Ter­miner, and within the view of the same, a Man doth strike a Jury,3. Eliz. Dyer 188. or any other with weapon, hand, shoulder, elbow, or foot, he shall have the like punishment; but in that case, if he make an assault, and strike not, the offender shall not have the like punish­ment.

One Peter Caery was indicted for drawing his sword in Aula Westm. sedentibus Curiis, and in disturbing the Sheriff,Cro. 1. part. cary's Case 405. in making an Arrest upon one T. by force of a Bill of Mid­dlesex: and being arraigned and found guilty, had Judgment of perpetual Imprisonment, and to pay one hundred pounds to the Queen; And note, that upon the evidence it appeared to be upon the stairs, ascending the Court of Wards, and so out of the view of the Courts: But Popham said, although it were out of the view of the Courts, yet if the Indictment had been as it ought to have been: viz. coram Domina Regina, the Judgment should have been, that his right hand should have been cut off, and that he should forfeit all his Lands and Chattels, and have perpetual Imprisonment.

S^t William Waller was indicted, for that he in the Palace of Westminster neer the Great Hall,Cro. 3. part. Sr. William Wallers Case f. 373 & 374. the Justices in the Kings Bench, Chan­cery, and Common Bench, judicially sitting to hear Causes, made an assault, and affray upon Sr Thomas Reignolds, and beat him, in distur­bance of the Law, and contempt of the [Page 66] King, &c. and upon this being arraigned, and found guilty, because the Indictment was not, that he did it in presence of the Justices, nor in the presence of the King, all the Judges agreed that the Judgment of cutting off his hand should not be given; and so se­riatim they delivered their opinions: But because this offence was in the Palace, neer the Hall door, whereby tumults might have been made, and because it was found sitting all the Courts, and in disturbance of Justice and Law, and in contempt of the King, the Court awarded, that he should be im­prisoned for the said offence during the Kings pleasure, and should pay 1000 pounds fine.

Thus much where the King is present by Representation.

If any strikes in the Kings Palace,33. H. 8. c. 12. where the Kings Royal Person resideth, he shall not lose his right hand unless he draw blood; but if he draw blood, then his right hand shall be strucken off, he perpetually imprisoned, and fined, and ransomed.

By what hath been said, a Man may per­ceive a great difference between a blow, or stroke in, or before the said Courts of Justice, where the King is representatively present, and the Kings Courts, where his Royal Per­son resideth; for in the Kings House, blood must be drawn, which needeth not in, or before the Courts of Justice, when the Judges are doing of that which to Justice apper­taineth; and the reason is, Quia Justitia fir­matur Solium.

7. Routs.

A Rout is when People do assemble them­selves together, and after do proceed or rid, or go forth, or do move by the iustigation of one or more, who is their Leader: This is called a Rout, because they do move and proceed in Routs and members.

Also where many assemble themselves to­gether upon their own common Quarrel, and brawles, as if the Inhabitants of a Town will gather themselves together, to break hedges, pales, or such like, to have Common there, or to beat another, that hath done to them a common displeasure,Co. 3. Inst. 176. Lamb. lib. 2. c. 5. or such like, that is a Rout, and against the Law, al­though they have not done, or put in execu­tion their mischievous intent, if so be they do go, ride, or move forward after their first meeting.

Note, that there is diversity between com­mitting of a great Rout, or the like, and Levying of War, for example, as if three or four, or more do rise to burn or put down an Inclosure in Dale,Co. 3 Inst. [...]. 9 & 10. which the Lord of the Mannour of Dale hath made there in that particular place, this or the like is a Rout, a Riot, or an unlawfull Assembly, and no Treason,

But if they have risen of purpose to alter Religion established within the Realm, or Laws, or to go from Town to Town ge­nerally, and to cast down Enclosures, this [Page 99] is a Levying of War (though there be no great number of Conspiratours) within the perview of the Statute of 25. E. 3. c. 2. be­cause the Pretence is publique and general, and not private in particular. As it was re­solved, Pasch. 39. Eliz. by all the Judges of England, in the case of Richard Bradshaw Miller, Robert Burton, — Mason, and others of Oxfordshire.

8. Riot.

Riot (in Latine Riotum) cometh of the French word Kioter,Co. 3. Inst. f. 176. id est, Rixari; and in the Common Law signifieth when three or more do an unlawful Act, as to beat any Man, or to hunt in his Park, chase or warren, or to enter or to take possession of another Mans Land, or to cut or destroy his corn, grasse or other profit, &c.

By the Statute of 17.17. R. 2. c. 8. 13. H. 4. c. 7. R. 2. and 13. H. 4. the Justices of Peace, and Sheriff are to arrest those that commit Riot, and to record that which they find done in their presence against the Law.

Each Man that is able,2. H. 5. 8. ought to help to re­press Riots, upon pain of Imprisonment, and to make fine to the King.

Evans, and Cottington and 7. others, were indicted for a Grand Riot, that they with others there named, to the number of 1000. persons, made a Rescous, and assault upon Henry Smith a Baylif, who by virtue of a Warrant upon a Bill of Middlesex, against [Page 102] William Cleer, had arrested him, and was car­rying him to Prison, and they procured him to escape. The Arrest was at Charing Crost in the Parish of St. Martins; and after the Arrest, they assaulted the Bayliffes, and beat them; and the Bayliffes putting the Prisoner into an house for safe keeping against the tu­mult, they assaulted the house; and notwith­standing a Justice of Peace, assisted with three Constables, made proclamation for keeping the Peace, and for their departure, yet they continued their assault, breaking open the house, and with ladders taken from the Kings House of White-Hall, (where the King with His Court was resident) upon the 24. of March 13, Car. in the afternoon of the said day, made this Riot and Rescous, and carryed the Prisoner away through the Kings House, and caused him to escape. Upon this Indictment 9. of them being arrested, plead­ed Not-guilty, and 4. of them viz. Evans, Cottington, Groom and Heatly being arraigned, were found guilty, and 5. of them were found Not-guilty, but against three of them was probable evidence, that they were aiding to this Riot and Rescous, but the Jury acquitted them; wherefore because it was so great a Riot, and offence, being committed so neer the Court, it was adjudged, that the said four persons, which were so convicted, should be committed to Prison, and every one of them should pay 500. pounds fine to the King: And that every of them should stand on the Pillory at Westminster, and Charing [Page 103] Cross, where the Riot was done; and that Thomas Groom, who was a Cobler, and en­tered into the house with a drawn sword, and a kettle upon his head, as an helmet to defend himself, should stand on the Pillory with a sword in his hand, and a kettle upon his head, and should be bound with good secu­ties for their good behaviour, before they should be delivered: And the three which were acquitted, against whom there was such probable evidence, were bound to find secu­rities for their good behaviour.

Note,Co. 3. Inst. f. 176. An unlawful Assembly is when three or more assemble themselves together, to commit a Riot or Rout, and do it not.

One or more, sayes the Lord Coke, may commit a force; three or more may commit an unlawful Assembly,Co. Litt. 257. a. Co. 3. Inst. f. 176. a Riot, or a Rout: A multitude (as Some have said) must be ten, or more, Multitudinem decem faciunt. And so (said they) it is said, de grege bominum. But Coke tells us, that he could never read it restrained by the Common Law to any certain number, but left to the discretion of the Judges.

In the Civil Law thus: Decem homines po­pulum, tres Collegium, Bartolus. duo Congregationem, & quindecim turbam constituunt in Jure Civili, sed Jure in Communi Angliae tres turbam faciunt.

9. Affraies, Single Combats, and Chal­lenges, &c.

Single Combats,1. Single combat. or Duels between any of the Kings Subjects of their own heads, and for private malice or displeasure, is prohibited by the Laws of this Realm; for in setled State governed by Law, no Man for any injury whatsoever ought to use private revenge; be­cause it belongeth to the King, who is the Supream Magistrate, and Gods Lieutenant on Earth. And the Law herein is grounded upon the Law of God; Deut. 32. 35. Rom. 12. 19. It is also against the Law of nature, and Nations; for a Man to be Judge in his own proper Cause, especially in Duels, where fury, wrath, malice, and revenge are the rules of the Judgment.

Hinc est, sayes one, quod Legum reperta est sacra reverentia, ut nihil manu, nibil proprio ageretur impulsu. Quid enim a bellica confu­sione pax tranquilla distat, si per vim litigia ter­minantur?

But it may be objected,Object. that it is lawful vim vi repellere, therefore private revenge is lawful: The reason of the consequence is be­cause by revenge force by force is repelled.

It is answered,Resp. That the antecedent is not simply and universally true: Vim vi repellere licet cum moderamine inculpatae tutelae, in casu ultimae, & indeclinabilis necessitatis, non semper & quocumque modo.

Note, that Duels are lawful, if they are [Page 103] warranted by publick Authority, such as heretofore our Tryals by batail, ad proban­dam veritatem litis; and such was the Duell betwixt David & Goliah, which was strucken by publick warrant and authority.

Vid. more of this in Grotius lib. 2. c. 1. nu. 15. & cap. 23. nu. 10.

Note further, that albeit upon the Single Combat (that proceeds not from publick au­thority) no death ensue, nor blood drawn,Affray. yet the very Combat for revenge is an Affray, and a great breach of the Kings Peace, an Affright and terrour to the Kings Subjects, and is to be punished by fine aud Imprison­ment, and to find sureties for their beha­viour.

When any Affray is made by Single Com­bat, any stander by,Co. 3. Inst. f. 178. that is no Officer, may endeavour to part them, and prevent further danger, and the Law doth encourage them thereunto, for if they receive any harme by the Affrayours, they shall have their remedy by Law against them; and if the Affrayours receive any hurt by the endeavouring only to part them, the standers by may justify the same, and the Affrayours have no remedy by Law. But if either of the Parties be slain or wounded,8. E. 2. Cor. 295. 22. Ass. Pl. 56. or so striken as he falls down for dead, in that case the standers by ought to apprehend the Party so slaving, &c. or to en­deavour the same by the Hue and Cry, or else for his escape they shall be fined, and Impri­soned. But if the Sheriff, Justice of Peace, Constable, or other Conservatour of the Peace [Page 106] do not part the Affrayours, for the preserva­tion of the Kings Peace, and apprehend them being within his view, or do not his utter­most to part, and apprehend them, they may be imprisoned for their neglect thereof, for they may command others to assist them, and therefore the rule holdeth in them; qui non prohibet, 3. H. 7. 10. 6. cum probibere passit, in culpa est. And if any be commanded to assist them there­in,Beding­feilds case. and refuse or neglect the same, it is a con­tempt in them, to be punished by fine and Imprisonment.

The words Affray and Assault be indiffe­rently used of most Men, and that also in some of our Book Cases; but yet (according to Lambards opinion) there wanteth not a just difference between them: For Affray is de­rived of the French (Cffraper) which signi­fieth to terrify or bring fear, which the Law understandeth to be a common wrong, and therefore is it enquirable in the Turn of the Sheriff, or in a Leete 4. H. 6. 10, and 8. E. 4. 5. otherwise it is of an Assault, as it seemeth by those very Books: yet may an Affray be without word, or blow given; as if a Man shall shew himself furnished with armes, or weapon, which is not usually worn and born, it will strike a fear into others that be not armed as he is: But an Assault, as it is fet­ched from another fountain, namely from the Latine Assultus, which denoteth a leaping (or flying) upon a Man: so can it not be per­formed without the offer of some hurtful blow, or at the least of some fearful speech, [Page 107] And therefore to strike at a Man (although he were neither hurt or hit, with the blow) was adjudged an Assault 22. Ass. Pl. 60. For this Assault doth always necessarily imply a hitting; and therefore in Trespass of Assault and Battery, a Man may be found guilty of the Assault, and yet be excused of the Bat­tery. 40. E. 3. 40, & 45. E. 3. 24.

3. Challenges.

If any Subject by word.Co. 3. Inst. f. 158. v. Hobarts Reports. Barrow. v. Llewil­len f. 62. Hickes case 215. Message, or Writ­ing challenge another to fight with him, this is an offence before any combat be performed, and punishable by Law, and it is contra Pa­cem, Coronam, & Dignitatem Regis. For, pro­hibetur cum aliquid, prohibentur etiam media ad illud tendentia.

The means of such evills as well as the end are to be prevented.

10. Libells.

A Libel signifieth a criminous report of any Man cast abroad, be he Magistrate, or a private Person, or otherwise, unlawfully pu­blished in writing, and therefore for distin­ction sake it is called an Infamous Libel, or Pasquil.

It matters not whether the Libel be true or false, or whether the Party be of good fame or ill fame; for it inciteth all the same Family, Kindred, or Society to revenge, and so tendeth by consequence to the effusion of blood, and to the breach of the publick Peace, and therefore such Libelling, be it true or false, is punishable by our Law.

[Page 106] It was resolved in the Star-Chamber 44. Eliz. Hallywoods, Case, that if any find a Libel. and would preserve himself out of danger, if it be a private Man, the finder may either burn it, or presently deliver it to some Ma­gistrate; but if it concern a Magistrate, or Publick Person, he ought to give it to the Magistrate.

One Jesses was indicted for that he ex­hibited an infamous Libel,Cro. 3. part. Jesses case f. 175. directed unto the King, against Sr Ed. Coke, late Chief-Justice of the Kings Bench, and against the said Court, for a Judgment given in the said Court, in the Case of Magdalen Colledge, affirming the said Judgment to be Treason and calling him therein Traitour, perjured Judge, and scandalizing all the Professours of the Common Law, and containing much other scandalous matter: and fixed this Libel upon the great Gate at the entrance of West, minster Hall, and in divers other publick Places: And being upon this arraigned, prayed that Councel might be assigned, which was granted, and he had them, but would not be ruled to plead as they advised; but put in a scandalous plea, and insisting upon it, affir­med that he would not plead other wise, whereupon it was adjudged, He should be committed to the Marshall, and that he should stand upon the Pillory at West minster, and Cheapside with a Paper mentioning the of­fence; and with such Paper be brought to all the Courts at Westminster, and be continued in Prison until he made his submission in every [Page 107] Court; and that he should be bound with sureties to be of good behaviour during his life, and should pay a thousand pounds fine.

Adam de Ravensworth was indicted in the Kings Bench for the making a Libel in writ­ing, in the French Tongue,Mich. 10. E. 3. Go­ram Rege Rot. 92, Eber. against Richard of Snowshal, calling him therein Roy de Ra­veners, &c. wheupon he being arraigned, pleaded thereunto Not-guilty, and was found guilty.

So by what has been said, a Libeller or pu­blisher of a Libel, committeth a publick of­fence, and may be indicted therefore.

The words of the Civil Law touching Li­bellers are these:

Injuria committitur;Just. 4. 4. 1. si quis insamiam a­licujus Libellum, aut Carmen, ant Historiam scripserit, composuerit, ediderit, dolove malo fe­cerit, quo quid eorum fieret.

Si quis famosum Libellum five domi,Cod.9. 36. De famosis Libellis five in publico, vel quocumque loco ignarus repererit: aut corrumpat priusquam alter inveniat, aut nulli confiteatur, inventum. Si vero non statim easdem Chartulas, vel corruperit, vel igni con­sumpserit, sed vim earum manifestaverit: sciat se quasi authorem hujusmodi delicti capitali sen­tentiae subjugandum.

11, and last, False Rumo [...]rs; and slan­derons news.

None shal report slanderous news whereby discord may arise between the King and his People,3. El. 6.34. or Great Men of the Realm: And he that doth so shall be taken and kept in Pri­son, until he hath brought him into the Court, which was the first authors of the tale.

The penalty is the same for telling slande­rous lies of the Great Men of the Realm.2. R. 2. c. 5.

But by the 12. R. 2.12. R. 2. c. 12. it is enacted, that when any such is taken and imprisoned, and cannot find him, by whom the Speech be moved, that he be punished by the advice of the Coun­cel, not withstanding the said Statutes.

Note,Inter Le­ges Alva­redi c. 28. the Law before the Conquest was, That the Author and Spreader of false Ru­mours amongst the People, had his tongue cut out, if he redeemed it not by the estima­tion of his head.

To conclude: It may easily and manifestly appear to all such as have been conversant in our Chronicles, how pernicious and dange­to this our Kingdom, unlawful Assemblies and false Rumours have been in all precedent Ages; yea, such as at the first were very small, and inconsiderable, and began upon very small occasions, yet not being repressed in time grew to such greatness and height, that they afterward put in hazard the State and Government of this Land: And therefore it is behoveful and good wisdom for all Ma­gistrates, [Page 111] and Justices of Peace to endavour by all good means to quench the beginnings and first sparks of such offences, as knowing that for want of timely restraint, they may soon grow to like danger again. And the axiome in our Law is:

Interest Reipublicae, ut pax in Regno conser­vetur, quaecumque paci adversentur provide de­clinentur: i.e,

It is most necessary in a Common-wealth to provide, that tranquility and peace be continued in the Realm, and that all things being contrary thereunto, may by foresight be eschewed.

1. Of the Definition of punishment.

Punishment in general signification is, Malum passionis quod infligitur ob malum actio­nis; but particularly it is defined by Mr Horn thus:Mirror c. 4 sect. 12. Papne est a satisfaction de Trespasse on de peche.

2. Of the end of punishment.

The principal end of punishment in our Law is, that others by example may fear to offend,Co. 3. Inst. f. 4. 6 108. Co Lib.4. B [...]verleys Case 124. a b 3. H. 7. 1. b. Ʋt poena unius sit metus multorum; and therefore a Man that is non compos mentis, or an Infant that is within the age of discretion, is not (un name) within the statute of 25. E. 3. c. 2. de proditionibus; for the end of punish­ment is that others may be deterred from the perpetration of similar offences. But such pu­nishment can be no example to mad Men, o [...] Infants, that are not of the age of di­scretion.

Touching the end of punishment, I shall offer the saying of Quintilian and Seneca.

Quintilian hath these words: Omnis poena non tam ad delictum pertinet, quam ad exem­plum.

Seneca thus:De C.C. l. 1. c. 21. In vindicandis injuriis ha [...] tria Lex sequuta est, quae Princeps quoque sequi debet; ut aut eum quem punit emendet, aut ut paena ejus caeteros meliores reddat, aut ut sublatis malis secuciores caeteri vivant.

3. Of the Divisions or several modes of punishment.

The kinds or modes of pain, whereby de­linquents are asserted are these, saith Bracton:

Sunt quaedam quae adimunt vitam,Lib.3. c. 6. Tr [...]l. 1. de [...] vel mem­bra: sunt quae auferunt Civitatem, Burgum, vel Provinctam. Sunt quae continent auxilium, [Page 115] perpetuum vel ad tempus, vel coercitionem ss. Imprisonamentum, vel ad tempus, vel ad per­petuum. Sunt quae fustigationem, verberatio­nem, poenam Pilloralem, & Tymboralem, & da­mnum cum infamia inducunt: sunt etiam quae­dam quae dignitatis & ordinis inducunt deposi­tionem vel alicujus actus privationem, vel pro­hibitionem.

The Division of Fleta is thus:

Personalium injuriarum, quoedam sunt cri­minales, & quaedam Civiles:Lib. 1. c. 16. Criminalium quaedam sententialiter mortem inducunt, quoe­dam vero minime.

Horne thus:Mirror c [...] 4. sect. 12. Of pains violent there be two sorts, Corporal and Pecuniary: of Corporal some be Mortal, and some be Venial.

Having given the Reader the several pu­nishments in our Law; it will not be amifs to shew briefly the several sorts of inflictions used amongst the Jews and Romans.

1. Amongst the Jews: Their punishments were either Capital, or not Capital: Their Capital contained four sorts of Death. 1. La­pidation or Stoning.Goodwius Civil, &c. Ecclesiast. Rites used by the Jews lib. 5. c. 7 & 8. 2. Combustion or burn­ing. 3. Decollation or Beheading. 4. Suffo­cation or Strangling.

The manner of burning was twofold; some they burnt with wood and fagots, this was termed by them, the Burning of the Body: Others they burnt by pouring in scalding hot lead, in at their mouthes, which descending into their bowels, killed them, the bulk of their Body remaining whole; and this was termed therefore, the burning of the Soul.

[Page 116] The lesser punishments not Capital, were chiefly four: 1. Imprisonement: 2. Resti­tution: 3. Talio or Retaliation: 4. Scourging.

2. Amongst the Romans:

Punishments publickly insticted on Mal [...] ­factors were either Pecuniary mulcts or Corporal punishments:Godwins Roman Antiq lib 3. sect. 3. c. 1 & 2. The Pecuniary mulcts were two sorts, either an appointed sum of money was required of the party guilty, and then it was called Mulcta; or his whole State was seised on, and then it was termed a Confiscation of his Goods.

The Mulct was twofold, the one termed Mulcta Suprema, the other Mulcta minima.

Again; The Corporal punishments were either such as were Capital, depriving a Maa of his life: or Castigatory, such corrections as serving for the humbling and reforming of the offender, or for the destroying of him.

Those punishments that deprived of life in ordinary use, and of which there is mo [...] frequent mention in Roman Authors, are thes [...]e which follow; Furca, Crux, Carcer, Cule [...] Equuleus, de Rupe Terpeia Dejectio, Scale Gemoniae, Tunica, Damnatio in gladium, [...] Ludum, ad bestias.

Note, That Capital punishments were sometime taken in a Civil acception for the loss of freedom, which the Romans called C [...] ­pitis deministionem, disfranchising; because in every Free-Man thus disfranchised, on head of the Corporation was as it were o [...] off: and sometime (as is said before) it [Page 117] taken for the loss of ones life; and this they called Ʋitimum supplicium.

4. Of the Rules for inflicting punishments.

The Rules that concern the Infliction of punishments, are these following;

Respiciendum est Judicanti, ne quid aut du­rius, aut remissius constituatur, quam causa de­poscit, nec enim aut severitatis, aut clementiae gloria affectanda est: sed propenso Judicio, prout quaeque res postulat,Bract. lib. 3 c. 16. de Actionib. statuendum: In levioribus causis, leviores esse debent, ad lenitatem. In gravioribus autem poenis, severitatem Legum cum aliquo temperamento benignitatis subsequi. Et poenae potius molliendoe sunt quam exaspe­randae.

2. Poena gravior ultra Legem posita,Co. 3 Inst. f. 219. oesti­mationem conservat. Or;

Majore poena affectus, quam Legibus statu­tum est, non est infamis.

With this Rule in our Law, the Civil Law Text doth concur;

Poena gravior ultra Legem imposita existima­tionem conservat:D. 3. 2. 13. 7. ut & constitutum est, & respon­sum: ut putae si eum, qui parte bonorum mul­tari debuit, Proeses relegaverit: dicendum erit duriori sententia cum eo transactum de existima­tione ejus, idcircoque non esse infamem.

3. Carcer ad homines continendos, Co. Lit. f. 260. a. Co 3. Inst. f. 35. non ad puniendos haberi debet: And therefore where the Law doth require that a Prisoner should [Page 118] be kept in salva & arcta custodia, yet that must be without pain or torment to the Pri­soner.

For severas facit Justitia, non inhumanas facit.

With our Law is agreable the Law Im­perial.

Solent Proesides in carcere continendos da­mnare,D.48 19. 8. 9. aut u [...] in vinculis contineantur, sed id eas facere non oportet: uam hujusmedi poenae interdictoe sunt; carcer enim ad continendos ho­mines, non ad puniendos haberi debet.

4. Nemo bis punitur pro codem delicto.

In an Appeal one H.Co. lib. 4. Hudson & Lees Case f. 43. counted that the De­fendant, &c. felonice maimed him in his left hand, the Defendant pleaded, that before, &c. the Plaintif recovered in Trespass for the same Battery, and wounding 200 pounds and sa­tisfaction acknowledged; resolved, that the Bar is good, for where the Plaintif is to re­cover damages only, (as in this Case of Ap­peal) he shal not be twice satisfied for the same thing.

Vide Co. lib. 8. Doctor Bonhams Case 118. b. lib. 11. Fosters Case.

5. Quis pro alieno facto non est puniendus: Co. 2. Inst. 442. Co. Litt. 145. b. Hobarts Reports Moore. v. Hussey f. 94. no Man, if guiltless can be punished for an­others fault: And the reason is because the obligation to punishment hath his rise from defect, which being only personal, cannot extend to another, neither ought it to go in succession.

The Rules of the Civil Law do run with our Law.

[Page 119] Omnis noxalis actio caput sequitur. Justit. 4. 8.

Et delicta & noxoe caput sequuntur. D. 16. 3. 1. 18.

Delictum injuria adfecti personam non egre­ditur.

6. Poenam in corpus patitur, qui in oere nihil habet.

By the Statute of Westminster 1. c. 20. de Malefactoribus in parcis, it is enacted, that if any be attainted at the suit of the Party, he shall be fined, if he hath whereof, if not, he shall be imp [...]soned.

This rule holdeth good in the Romans Law. Vide D. 48. 19. 1. D. 2. 1. 7. 3. D. 47. 9. 9.

7. In dubiis interpretationibus ad mitiora deflectendum est. Co.4.Inst. f. 66. Hob. Reports. courteens Case.

And therefore general Acts of Parliament, which inflict punishment, viz. sur f [...]r [...] tour de Corps and de Ab [...] it, &c. ought not to be ex­pounded to extend to life or member, but to imprisonment.

This holds good also in the Imperial Law:

In poenalibus causis benignius interpretan­dum est.D. 50. 17. 192. 1.

Interpretatione Legum poenoe molliendoe sunt potius,D 48. 19. 42. quam asperandoe.

Judicandum est Legibus,Co 3. Inst. 212. non exemplis.

5. Of the circumstances that ought to be weighed touching Pleas of the Crown.

In all crimes or offences publick, that are brought before a Judge,Bracton lib. 3. c. 6. de generi­bus poena­rum. Fleta lib. 1. c. 16. de Actio­nibus cri­minalibus. Mirror c. 4. sect. 12. are to be considered six circumstances.

1. Causa, ut in verberibus, quoe impunita sunt a Magistro, vel a Parente, nisi modum ex­cedant, quia emendationis non injurioe gratia vi­dentur adhiberi, & puniuntur, cum quis per iram ab extraneo pulsatus est.

2. Persona, nam magis delinquit, qui pa­trem, vel matrem, vel dominum interficit.

3. Locus, qui facit, ut idem sit furtum, vel sacrilegium, & secundum hoc minor poena, vel major.

4. Tempus, hoc discernit proedonem a fure, & a Burglatore, furemque diurnum a nocturno.

5. Quantitas; hoec discernit furem ab Ambi­guo, plus enim peccat qui gregem surripuerit, quam qui ovem.

6. Eventus; ut si ex voluntate & conscien­tia certa fecerit quis aliquid, sicut homicidium an ex eventu: Et secundum hoc, aut erit felonia, aut infortunium.

Gothofredus on the Digest hath these words.

In factis, dictis, scriptis & Confiliis, Causa, Persona, Locus, Tempus, Qualitas, Quantitas, & Eventus consideranda sunt. Quintil. 6. Inst. Atrocitas crescit ex his; quid factum sit, a q [...]o, in quem, quo animo, quo loco, quo tempore, quo modo.

6. Of the Persons to be coesidered in Criminal Judgments.

The Persons that constitute Judgment cri­minal are §.1. Of the Parties in Judgment Parties, Assistants, and Judge.

Of these in their order.

The Parties are, Accuser, and Accused, called sometime Appellor, and Appellee, sometime Indictor, and Indictee.

Britton telleth us,Cap. 22. that it is not for every Person to accuse or appeal; for a Man out­lawed, neither he that hath forjured the Realm, nor a Man attainted, nor an Ap­prover that hath failed in his probation, nor an Infant within the age of 14 yeares, nor a mad Man, nor an Ideot, nor a mute, nor one that is deaf, nor a leper, nor a Man within Holy orders, are not receivable in Appeals, &c.

The Mirror saith, that Women, Infants, Ideots,c. 1. sect. 3. Lepers, or Professours in Order of Religion, or Clerks, or Persons attainted of felony, or non compos mentis, cannot be Ap­provours.

Now, an Approvour is he who hath com­mitted some felony, which he confesseth, and appealeth or approveth, that is to say, ac­cuseth others, which were coadjutours or helpers with him, in doing the same or other felonies, which thing he will approve; and this proof is to be either by Battaile or by the Countrey, at his election that appealed.

This Accusation is often done before the [Page 122] Coroner, who either is a signed to the felon by the Court to take and record that which he saith, or is called by the felon himself, and required for the good of the Prince and Com­mon-wealth, to record that which he shall say.

If upon his appeal all those Partners be convicted, the King ex merito Justitioe is to pardon him. But it is in the discretion of the Court either to suffer him to be an Approver,21. H. 6. 29. b. & 34. b. or after his approvement to respite Judgment and execution, until he hath convicted all his Partners.

Note; If a Man that is of good same be appealed by an approver, by which he is ap­prehended and kept in prison, yet he may have a writ, to be directed to the Sheriff, comman­ding him to suffer the Party appealed to be Bayled by good sureties. But if a Man appeal­ed by an approver, be kept in prison, and afterwards the Approver dieth, there he may sue a Writ directed to the Sheriff, to suffer him to be Bayled upon good surety, if he be not a notorious felon, although he be not of good fame, Fitzh. N.B 250. d.

Note further, that before Indictment no person can approve, because if his approve­ment be false,43. Ass. Pl. 39. 15. E. 3. Cor. 113. 11. H. 7. 5 no Judgment (whatsoever he confessed) can be given against him, unless he be indicted, and no Judgment can be given against him, if his Appeal be false; but of the offence contained in the Indictment, and so are the Books to be understood.

Thus much of the Party accusing.

[Page 123] As for the party accused or appealed, he is always arraigned either as principal, or ac­cessary.

Of these distinctly and apart.

1. Of Principals.

It is a sure rule,Co. 3. Inst. 138. that in alta proditione, nullus potest esse accessorius, sed Principalis so­lummodo.

As if many men conspire to Levy War,Co. 3. Inst. f. 9. and some of them do Levy the same, according to the conspiracy, this is High treason in all, for in Treason all be principals.

If a man committeth Treason,19. H. 6. 47. 3. H. 7. 10. and thereby becometh a Traitor, if any other man know­ing him to be a Traitor,Co. 3. Inst. f. 138. doth receive, com­fort and aid him, he is guilty of Treason, as principal, for that there be no accessaries in High Treason.

Note,Co. Liu. 57. b. Co. Inst. 20 & 21. that in the lowest offences there are no accessaries, but all are principals, as in Riots, Routs, &c.

There is another rule; 57. Inst. 20 & 21. Nullus dicitur felo principalis, nisi actor, aut qui proesens, aut au­xilians actorem ad feloniam faciendam.Co. 3. Just. 138.

But this rule hath his exceptions;Co. lib. 4. Vaxxes Case. Plowd. for in case of poysoning, if one layeth poyson for one, or infuseth it into a broth, or the like, albeit he be not present,Com. 476. Saunders's Case. Co. lib. 9. when the same is taken, and either the party intended, or another is poysoned, yet he is a principal: and in that case,Gores Case. both the principal and procurer or ac­cessory may be absent.

[Page 124] So there is a felony wherein all be princi­pals,Co. 2. Iust. 138. as well before as after,Co. 3. Inst. f. 61. though they be absent at the doing of the felony, but this is specially provided by the Statute of 3. H. 7. c. 2. of Taking Women against their wills.

Note, If any be present, abetting, and aiding any to do an Act,Co. 3. Inst. f. 59. 3. & 4. P. & M. Justice Dalisons Reports. though the offence be personal, and to be done by one only, as to commit a Rape, not only he that doth the Act is a Principal, but also they that be pre­sent, abetting and aiding the misdoer, are principalls also.

2. Of Accessary.

In case of felony, as there be principals, so there be Accessories, and accessories be of two sorts, by the Common Law, and by the Statute Law.

Accessory by the Common Law is also of two sorts §.

1. Accessory before the offence or fact; and it is he that commandeth or procureth an other to commit felony, and is not there present himself, when the other doth it, but if he be present, then he is also a principal: As where I S. doth hold I. X. and commands I. D. to kill him, whereupon I. D. doth give him a wound to his heart, whereof he instantly dies, It is held that both be principals, be­cause both are parties to the wound. 13. H. 7. 10. a.

So a Woman servant conspired to rob her Mistress, and brought a Stranger to the Bed­side, [Page 125] where the Mistress lay asleep, the Stran­ger killed,2 & 3 Eliz. Dyer f. 128. the servant silent, nothing doing, but holding the candle; the two Chief Justices and Hare, though the Servant a Traitress and a principal.

If a Man counselleth a Woman to murther the Child being in her Body,Dyer f. 186. and after the Child is born, and then is mudered by the Woman in the absence of him that so gave the Counsel; yet he is accessary before the fact, by his counselling, before the birth of the In­fant, and not countermanding it.

Note,Co. lib. 4. f. 44. a. that in Man-slaughter a Man cannot be accessary before the fact, for Man-slaughter ensueth upon a sudden debate or Affray, for if it be premeditated, it is murder.

2. Accessory after the offence, and it is he, that receiveth, favoureth, aideth, or com­forteteth any Man, that hath done any mur­der or other felony, whereof he hath know­ledge, such an accessory shall be punished, and shall have Judgment of life and member, as well as the principal, which did the felony.

But the Quere may be, whether one may be accessory to an accessory? It is answered, that one may; if one feloniously receive an­other, that is accessory to felony, there the receiver is an accessory.

Thus much of accessories by the Common Law.

Accessory by the Ssatute Law, is such a one that abbeteth, counselleth, or receiveth any Man, which committeth, or hath committed any offence made felony by Statute; for al­though [Page 126] though the Statute doth not make mention of accessories; abettours, &c. yet they are in­cluded by the interpretation of the said Sta­tutes:Co. 3. Inst. f. 59. & 72. 7. E. 6. Dyer 88. Because whensoever an offence is made felony by act of Parliament, there shall be accessories before and after, as if it had been made a felony by the Common Law.

For the further understanding of accessories, it will not be unnecessary to give the Reader some certain Rules touching them; and then some Queries.

Accessorius sequitur naturam sui principalis: Reg. 1. As if the Wife procure one to murder her Husband, and doth it accordingly, in this case the Wife being absent,Dyer 16. Eliz. 332. a. Saun­ders case. Co. 3. Inst. f. 20 & 139. is but accessory, aud shall be hanged and not burnt, because the accessory cannot be guilty of Petit treason, where the principal is not guilty but of mur­der: and accessorium naturam sequi congruit principalis, The accessory must follow the nature of the principal.

2. bi factum nullunt,Reg. 2. ibi fortia nulla: Et ubi non est principalis, non potest esse acces­sorius.

As if the principal and accessory be ar­raigned,Co. 3. Inst. 114. 3. H. 7. 1. 6. 12. 6. and both found guilty, and the principal has his book before Judgment: It was adjudged,Co. lib. 4. Syers case. the accessory shall be dischar­ged; and also if the principal confess, and hath his book, the accessory shall be discharged, because Judgment was new given against the principall.

So where the principal before attainder is pardoned, the accessory is discharged.

[Page 127] It is resolved, that where the principal was found guilty of Man-slaughter, and not guilty of murder, and had his Clergy, the accessory shall be discharged,Co. lib. 4. Syers case. Cro. 1. part. Goss, v. By­by f. 541. Co. lib. 4. Bibithes Case. for till Judgment, it doth not appear judicially that there was a prin­cipal: But if the principal prayes his Clergy, after he hath had Judgment, or if he be par­doned, yet the accessory shall be arraigned, for it appears judicially that there was a prin­cipal.

By what has been said, you see that the acces­sory ought not to be condemned, but where the principal is attainted, and not where he is convicted only, and had his Clergy; which Clergy is a Refuge provided by the Common Law in favour of Learning,Of Clergy. to save the life of an offender Literate in certain cases; I say in certain cases, because the benefit of the Clergy is taken away in many particulars, as,

1. For stealing of horses 1. E. 6. c. 33.

2. For robbing dwelling houses, &c. in or neer the high way. 5. E. 6. c. 9.

3. For burning of houses, or Burns 5. Ph. & M. c. 4.

For stealing of 5. Shillings in any dwelling house, or any place adjoyning, 39. Eliz. chap. 15.

5. For Burglary and Rape, 18. Eliz. c. 17.

6. For stealing 12 pence or more, with­out the knowledg of the Person, &c. 8. Eliz. c. 4.

7. For killing one that hath no weapon drawn.Co. 3. Inst. f. 39. 1. Jac. c. 9. &c.

[Page 128] But to conclude this learning of Clergy; It is a Rule whensoever felony is made by any Statute, and the benefit of Clergy is not taken away, the offender shall have his Clergy.

The accessory ought not to be put to an­swer,Reg. 3. before the principal be attainted;9. H. 7. 19. b. Co. 3. Inst. f. 231. for Juri non est consonum, quod aliquis accessorius in Curia Regis convincatur, antequani aliquis de facto fuerit attinctus: And consequentially by the Reversal and acquittal of the prin­cipal, the dependant Judgment against the accessory cannot stand.

And this is agreable to the Rules of the Imperial Laws;

Cum principalis causa non consistat,B. 50. 17. 178. plerum (que) ne ea quidem, quoe sequuntur locum habent.

Quando res aliqua sit accessoria principali,Alciolus. vitiato principali, corruit accessorium.

Thus much of the Rules, and now for the Quaeries with Solutions.

A Man being made accessorie to two,Q [...]. 1. whe­ther he can be found accessory to one?

If an Appeal be brought against two,Resp. as principalls, and against another as accessory to them, in this case both of them must be attainted,Co. 2. Inst. f. 183. before the accessory be outlawed, and if one of the principals be found not guilty, the accessory is discharged, for the Plaintiff made him accessory to two, and therefore he cannot be found accessory to one.

[Page 129] Qu. 2. Whether the Writing of Letters &c. in Favour of a Felon can make him an Acces­sory?

Resp. If a man write Letters for a Felons deliverance, or in favour of him, or the like, he is no Accessory,26 Ass. pl [...] 47, for that he received not the Felon.

Qu. 2. Whether the Instructing of a Felon to Read will make the Person Instructing an Acces­sory?

Res. A Vicar Instructing an Approver which could not Read,Co: 3. Inst: f. 139, whilst he was in pri­son, to Read, whereby he escaped, was ad­judged not Accessory to the Felony.

Qu. 3. Whether the perswading Witnesses not to Appear to give Evidence against a Felon will make one an Accessory to the Felony?

Res. Catlin and Brown Justices of Assize in the County of Suffolk put this Case to all the Judges:Mich: 11 & 12 Eliz: the case of Roberts the ttorney, A man committed Felony in the County of Suffolk, for the which he was com­mitted to the Goal, and R. an Attorney ad­vised the Friends of the Felon to perswade the Witnesses not to Appear to give Evi­dence against him, which was done accor­dingly; And it was Resolved, that neither the Friends, nor the Attorney were Acces­sories to the Felony, but it was a great Con­tempt and Misprision, for which they might be fined and imprisoned.

Hitherto of the Parties in Judgements Criminal.

[Page 130] The Assistants in Judgements Criminal are of two sorts,2 Of the Assistants, the one appertaining to the King, as the Kings Serjeants, his Attorney, and Solicitor General, and the Clerk of the Crown; the other to the party Arraigned assigned to him (upon his prayer) by the Court.

The Duty of the Kings Councel learned in the Laws is to manage the Evidence against the prisoner at his Tryal, and the Function of the Clerk of the Crown is to frame, read, and record all Indictments against Traytors, Felons, and other Offenders Arraigned in the Kings Bench upon any publique Crime.

Note by the Statute of 2 H: 4. this Clerk of the Crown,2 H: 4, [...]: 10, if fourscore or a hundred men be Indicted of Felony, or Trespass, of one Felony, or one Trespass, and they plead to an Issue, as not Guilty, the said Clerk ought not to take for the Venire Facias, nor for the Entring of the Plea but two shillings only, and not two shillings for every one, which Act is made in affirmance of the Common Law. So if one man be Indicted of two several Felonies, or Trespasses, and is acquit­ted, he shall pay but for one Delive­rance.26 Ass: pl: 24,

As to the Councel belonging to the Party Arraigned, the Law of England is thus; Where any person is Indicted of Treason or Felony, and pleadeth to the Treason or Felo­ny, Not Guilty, which goeth to the Fact best known to the party; it is holden that the party in that Case shall not have an Advocate [Page 131] assigned to defend his Cause, or alledge any matter for him; but if the party Arraigned hath any matter of Law to plead, he shall have Councel assigned by the Court, to plead the same, as to plead a general Pardon, or a parti­cular Pardon, or to plead in Arrest of Judge­ment, if the Verdict be found against him, that the Tryal came not out of the right place,Co. lib. 6. f 14, Arun­dels case. as it fell out in Arundels Case convict­ed by a Jury of wilful Murder, or any other matter of Law.

Sir Humphrey Stafford had an Advocate assigned him concerning the priviledge of Sanctuary,1. H. 7. 7 22, b. from whence he was drawn by Force; bnt for the matter of High Treason he pleaded his own Cause.

But though the party Arraigned upon an Indictment of Treason, or Felony, and plead­ing to the Treason or Felony, Not Guilty, which goeth to the Fact, cannot have Coun­cel to give in Evidence, or alledg any matter for him; yet in Appeals which are the Suites of the Subject, Councel is allowed, and the Reason why Councel is not prohibited in an Appeal as it is in an Indictment may be this: There is no Appeal brought,Doctor & Stud: lib. 2. c. 4 [...]. but that of com­mon presumption the Appellant hath malice against the Apellee; and therefore if the Judges should in those Cases shew themselves to Instruct the Appellees, the Appellants would grutch, and think them partial, and therefore as well of the Indempnity of the Court, as of the Appellee in that Case that he be not guilty, the Law suffereth the Ap­pellee [Page 132] to have Councel; but when a man is Indicted at the Kings Suit, the King inten­deth nothing but Justice with Favour, and that is to the rest and quietness of his faithful Subjects, and to pull away Misdoers among them charitably, and therefore the King will be contented that his Justices shall help forth the Offenders, according to the Truth, as far as Reason and Justice may suffer.

Note,Co 3. Inst. 29. that in S [...]otland, in all Criminal Ca­ses, yea in cases of High Treason Pars rea may have Councel learned. Thus much of the Assistants.

There is in Criminal or Publique Judge­ment a two-fold Judg,3 Of the Judge. one of matter of Fact, and that is the Iury, whose Office is to find out the truth of the Fact;Co Lit. 226. a. lib. 4 H. ydons case, 92 a. lib. 9. the other of Law­matters, and that is the Kings Justice, whose Office is to find out the truth of the Law, Ad questionem facti nen respondent Iudices, ita ad qnoestionem Iuris non respondent Iuratores. Dowmans case s: 13, a. Of these particularly.

1. Of the Iury.

Iurors ought to be persons competent, and that they be such, it is required that every Ju­ror that is returned for the Tryal of the life of man,Co: Lit, 155, b, 272, a, 78,b, ought to have three qualities.

1. He ought to be Dwelling most near to the place where the question is moved, for Lex intendit vicinum vicini facta seire.

2. He that passeth in an Enquest of Life,Seat, 2.11, [...], Stat. 2 [...] and death, ought to have Lands and Tene­ments, [Page 133] to the value of 40 Shillings.

3. He ought to be least suspicious, that is to be indifferent, as he stands unsworn; and then he is accounted Liber & legalis homo, otherwise he may be challenged, and not sufferred to be sworn.

The Determination of the matter of fact by Jurors,Co. Lit. 226. a. is termed in our Law, a Verdict, in Latin Veredictum, Co. lib. 9. f. 13. a. quasi dictum veri satis.

And of Verdicts some are general,Dowmans Case. some special, or at large: It is called a Special Ver­dict or at Large, because the Jurours find the special matter atlarge,Co. Lit. f. 226. b. & leave the Judgment of Law, thereupon to the Court: Of which kind of Verdict it is said, Omnis conclusio boni & veri Judicii sequitur ex bonis & veris prae­missis, & dictis Juratorum. Touching spe­cial Verdicts in Crown matters, Vide Cro. 3. part. Hallowayes case; Cookes case f. 537.

2. Of the Judge in matters of Law.

The Judges (that are to decide, and dis­cusse matters in Law) are bound to observe these particulars §.

1. They ought to judge secundum allegata & probata: Quotieseunque sententiam fert Ju­dex, secundum allegata, & probata ferre debet.

2. They ought to see,Co. 3. Inst. f. 1 [...]7. that the Indictment, Tryal, and other proceeding be good, and sufficient in Law, otherwise they will by their erronious Judgment attaint the Prisoner un­justly.

3. The Court ought to be, instead of Coun­cel for the Prisoner, to see that nothing be [Page 134] urged against him contrary to Law and right;Co. 3. Inst. s. 29. nay, any Learned Man that is present, may informe the Court, for the benefit of the Pri­soner, of any thing that may make the pro­ceedings erronious.

4. The Judges ought not to deliver their opinions before hand of any Criminal cause, that may come before them judicially, to the end that the Tryal may be more indifferent, seeing the safety of the Prisoner consisteth in the indifferency of the Court: And how can they be indifferent,Co. 3. Inst. 29. who have delivered their opinions before hand without hearing of the party, when a smal addition or substraction may alter the Case?

5. Judges ought in giving Sentence, espe­cially in ambiguous Cases,Co. Lib. 9. Dowmans Case 13. a. to avoid precipi­tation; because ad poenitentiam properat cito qui judicat. Festinatio Justitiae noverca.

Touching Temerity or Hastiness, take these foreign Authors:

Temeritas est, damnare quod nescias, sayes Seneca.

Temeritate omnis actio vacare debet; Cicero I. Offic., Nibil temeritate turpius; Id. de Na­tura. Nihil a gravitate Sapientis temeritate disiunctius. 4. Academ.

Deliberabo; Lex vult nibil temere fieri: sayes Seneca lib. 2. Controv. 11.

Hitherto of the Persons that are conver­sant in Judgment touching publick Crimes, or offences.

7. Of the Matters of Judgments Crimi­nal; and how they are brought to a judicial Decision.

The things or matters of publick or cri­minal Judgments are Causes proceeding from High treason, Felony, or other Misdemea­nours.

Touching High treason and Felony, two things are to be observed.

1. In antient time, every Treason was com­prehended under the name of Felony (but not e contra; 2. E. 4. 14. 18. E. 4. 104punc; 23. Ass. P [...]. 19.) and therefore in our antient Books, by the Pardon of all felonies, High treason, or Counterfeiting the Great Seal, and of the Kings Coyn, &c. was pardoned. But the Law now is, and of long time hath been otherwise holden: And therefore by the Law at this day under the word Felony, in all commissions, &c. are included Petit treason,Co. Litt. 391. a. Murder, Homicide, Burning of Houses, Burglary, Robbery, Rape, &c. Chance­medley, Se defendendo, and Petit Larceny; but not High treason, for it is not compre­hended under the word Felony; and there­fore ought to be especially named, in the Kings Pardon or Charter.

2. That criminal, or publick Causes are called Pleas of the Crown, but they are not so called,Co. 2. Inst. f. 22. as some have said, because the King Jure Coronae, shall have the Suite and Common Pleas, because they be held by [Page 136] Common Persons, for a Plea of the Crown may be holden betwixt Common Persons, as an Appeal of Murder, Robbery, Rape, May­hem, &c. and the King may be party to a Common Plea, as a Q [...]are impedit, and the like,

But now, how these criminal matters are brought to a judicial hearing, is the question; It is answered, that they are brought by way of Accusation, and Exception.

Accusation doth proceed either by way of Appeal or by way of Indictment;1. Of Ac­casations. and first of Appeals.Appeal.

Appeal, Appellum, cometh of the French word Appeller that signifieth to accuse,Co. Litt. 123. b. 126. b. or to appeal, or appeach. An Appeal is therefore an Accusation of one upon another, with a purpose to attaint him of Felony, by words ordained for it.

Now Appeals are of three sorts:Co. Litt. 287. b.

1. Of wrong to his Successor, whose heir he is, and that is only of Death, which is of two sorts, of Murder, & of Manslaughter, but of Chaucemedley, no Appeal doth lye.

As touching Appeal of Murder this Quaere is put.

Qu. Whether Tryal of Murder by Appeal ought to be brought in the County, where the fact was committed?

Resp. It is adjudged, that in an Appeal of Murder, the writ shall abate if it be not brought in the County, where the fact was committed; for it is against a fundamental Rule of Law, that a Tryal of murder by [Page 137] Appeal,Cro. 3. part. So [...]t­ley, v. Price 247. or otherwise, shall be out of the County where it is perpetrated: And for this cause, it was doubted at the Common Law, where a stroak were given in one County, and death ensued in another, how it should be tryed? And to avoid this doubt the Stat. of 2. E. 6. was made.

But it alwaies was clear, that a fact in one County ought not to be tryed in another.

Note, the Stat. of 26. H. 8. c. 6. allows that Indictments may be in County's next ad­joyning; but there is not any mention of Ap­peals; and for this reason Certioraries have been granted, to remove Indictments out of the Grand Sessions in Wales.

2. Of wrong to the Husband, and is by the Wife only of the death of her Husband to be prosecuted:Co. Litt. 33. b. Touching this kind of Appeal I propose these Q [...]eries, with Resolutions on them.

Qu. 1. Whether a Wife de facto, shall have an Appeal?

Resp. Some do hold, and so do I, that a Wife de facto, shall have an Appeal of the death of her Husband, but only she that is Wife de [...]ure in f [...]vorem vitae; and that there ne unques [...]ccouple en loyal Matrimony, shall be taken de jure strictly.

Qu. 2. Whether the Wife can have an Ap­peal, although she cannot have a Writ of Dower?

Resp. The Wife shall have an Appeal,Co. Litt. 33. b. where she cannot have a Writ of Dower, as if she Elope, &c. she is barred of her Dower; but [Page 138] not of her Appeal;West. 2. c. 34. and the reason is, for that the Stat. barreth her of her Dower, but not of her Appeal.Co. Litt. 33. b. 37. a.

So if the Husband be attainted of Treason,Co. 3. Inst. f. 215 35. H. 6. 63. or Petit treason, his Wife shall not be en­dowed; and yet if any do kill him, the Wife shall have an Appeal; for notwithstanding the Attainder he remained her Husband.

Qu. 3. Whether she ought to be sole and un­married, that brings an Appeal of her Husbands Death?

Resp. It is requisite, that she be sole and un­married, that makes this Appeal;e [...] The H [...]o­i [...]ns Law. b. 5. ct. 1. for if she marry again, her Appeal is gone, though the new married Husband be dead within the year and day, after his death that was slain.

Qu. 4. Whether the taking of a second Hus­band after Judgment, and before Execution, can binder the Execution of the Judgment?

Resp. Not only a Widdow, which hath an Appeal hanging, abateth her Appeal, and loseth it force, by new Marriage; but also if after Judgment and before Execution,smaH. 4. 41 she take an Husband, she loseth the Execution of the Judgment.

Qu. 5 What is the true reason, why a Wo­man hath an Appeal de morte Viri?

Resp. The reason wherefore this Action is given to a Widdow, is not as Glanvil makes it, Quia una cara est vir & uxor; for then the Baron might have an Appeal de morte uxoris, The wo­man Law­er lib. which is never granted, but her heir shall have it: But the true reason why a Woman hath the Appeal de morte Viri, is because by his [Page 139] death she is thought less able to live and main­tain her self, & that therefore when she taketh another Husband, cessante causa, cessat effectus; and her Appeal is gone, as la Widdowes Quarentine is determined, when she is once remarried.

3. Of wrong done to the Appellants them­selves,1. Robbery. as Robbery, Rape, and Maihem.

If in an Appeal of Robbery,Co. 3. Inst. f. 227. the Plaintiff omit any of the goods stoln, they are forfeit to the King, for the favour, which the Law persu­meth the Plaintiff beareth to the Felon: and for that he cannot have restitution for more then is in his Appeal.

If the Jury find in an Appeal of Robbery for goods,2. E. 3. Cor. 367, & 368. that the Defendant found them in the High-way, in this case the Plaintiff for his false Appeal, [...]eking the blood of the Inno­cent, shall forfeit his goods to the King.

If any Virgin,2. Rape. Widdow or single Woman be ravished, she her self may sue an Appeal of Rape, prosecute the Felon to death, and the Kings Pardon cannot aid him.

But if a Feme Covert be ravished, she can­not have an Appeal without her Husband, as appears 8. H. 4. 21. If a Feme Covert be ravished, and consent to the Ravisher, the Husband alone may have the Appeal, and this by the Stat. of 6. R. 2. c. 6.11. [...]. 4. 13. And the Husband that this Statute speaketh of, which may sue the Appeal, must be a lawful Hus­band, in Right and possession; for ne unques accouple en loyal matrimony, is a good Plea against him.

[Page 140] An Appeal of Maihem was brought by one Milles, 3. Maihem. and the Maihem was assigned in his shoulder; and the Defendant demanded the view, and it was said, that he should not have it, because it was done de son tort de­mesue: also it was said, that Surgeons may heal and cure him,21. H. 7. 23. b. and although he shall be tryed by Inspection of the Court, or by Chi­rurgeons, it was held be it one way or other, it is peremptory for him, &c.

It was held by all the Justices of the Kings Bench, that in an Appeal of Maihem, if the Defendant pray that the Maihem may be examined;21. H. 7. 40. a. if the Justices or Surveyors which they require, be in doubt whether it be a Maihem or not, the Judges may refuse the examination, and compel the Party to put it upon the Country.

Thus much of wrong done to the Appel­lants themselves.

I shall conclude this Learning touching Appeals with these Queries.

Qu. 1. Whether all Appeals ought to be sued in proper Person?

Resp. It is answered, that all Appeals are to be sued in proper Person, and not by At­torney, as Appeal of Maihem must be in pro­per Person.21. E. 4. 72, & 73. A Woman, which was Crosse­ment enseint, sued this Appeal;The wo­mans Law­er lib. 5. sect. 2. and the De­fendant was attainted, the Womans Appear­ance was recorded for the whole Terme; and yet by the better opinion, she might not pray Execution by her Councel, but ought to come in proper person: therefore one of the Judges [Page 141] did ride to Islington to her, to see if she were alive, and desired Execution, which she re­quired, and the Defendant had Judgment.

Qu. 2. Whether an Appeal may be commenced more then one way?

Resp. It is answered, that Appeals are commenced two wayes, either by Writ, or by Bill.

1. By Writ, when a Writ is purchased out of the Chancery by one Man, against ano­ther, commanding him that he shall appeal a third Man of some felony, or other offence by him committed, and to find Pledges, that he shall do this with effect, and this Writ is to be delivered to the Sheriff to be re­corded.

2. By Bill, when a Man of himself giveth his Accusation of another Man in Writing to the Sheriff, or Coroner, and taketh upon himself the burthen of appealing him that is named in the said Writing.

And note, that there is a diversity worthy of observation, betwixt an Appeal by Bill, and by Writ: for in the Appeal by Original Writ both principals and accessories,Co. 2. Inst. f. 183. are generally charged alike, without any distinction, who be principals, and who be accessories: but otherwise in the Appeal by Bill.

Thus much of the Accusation by way of Appeal. I proceed now to speak of the other kind of Accusation; viz. by Indictment.

Indictment cometh of the French word Enditer, Indictment Co. Litt. f. 126. b. and signifieth in Law an Accusa­tion found by an Enquest of 12 Men, or more [Page 142] upon their Oaths, and the Accusation, in La­tin is called Indictamentum. And as the Ap­peal is ever the Suite of the Party, so the In­dictment is alwayes the Suite of the King, and as it were his Declaration.

For the clearer understanding of Indict­ments, take these following Rules.

That there be words so appropriated to offences criminal,Reg. 1. that they cannot be Le­gally by any other words, or Periphrasis.

The word Rapuit, Rape. in an Indictment of Rape, must be used, for carnaliter cognovit eam, or the like will not serve.

Co. Lit. 124. a. Co. 2. Inst. 180. Cro. 2. part. Fitzwilliams Case.

An Indictment,Murder. Quod felonice, & ex ma­litia sua praecogitata occidit, such a one with­out saying, Murdravit, is no Indictment for Murther, although these words Tantamount. Cro. 3. part. Fitzwilliams Case Co. l. 4. Brookes Case 39. b. 8. E. 6. Dyer 69. a. 304. b.

No Indictment can be of High treason,High trea­son. without this word (proditorie) Co. 3. Inst. f. 15, & 4.

In an Indictment of Maihem (Maihemavit) cannot be expressed by any word,Mayhem. as mutila­vit, truncavit, or the like, Co. Litt. 126. b.

The word Felonice, Felony. must be used in all Indictments of Felony, and cannot be ex­pressed by any other word. Co. Litt. 391. a.

False Latine shall not quash an Indictment,Reg. 2. if the word be sensible. Co. leb. 5. Lowes Case.

It is moved in Arrest of Judgment, that [Page 134] an Indictment was not good,Cro [...] part cholme le­ges [...]ase. being fecerunt, whereas it was found only Billa vera against one; sed non allocatur: Because it was exhi­bited against two, and it is but false La­tine.

Misrecital of a Statute,Reg. 3. being fatal in In­dictments, the sure way is to draw the In­dictment with conclusion contra formam Sta­tati, and with no Recital of the Act. Co. l. 4. 48. a.

Every Indictment ought to have the Ad­dition of the Party indicted,Reg. 4. and his place of Abode. Cro. 2. part. Reads Case, and Johnsons Case, 610.

In all Cases of death,Reg. 5. the word percussit, ought to be used, except in case of poysoning. Co. lib. 5. Longs Case.

Where a Man indicted,Reg. 6. is not convicted, or acquitted, he may be arraigned upon a new Indictment. Cro. 3. part.: Withipools Case.

Where the substance of the Indictment,Reg. 7. Co. Litt. f. 282. a. lib. 9. Mac­kaleyes Case. no matter for circumstances: As if A. be indi­cted of mur [...], viz. that he of malice pre­pensed killed IS: A. pleadeth, that he is not guilty mode & forma; yet the Jury may find him guilty of Man-slaughter, without malice prepensed, because the killing of IS. is the matter, and malice prepensed is but a circumstance.

From Accusation (both by way of Appeal and Indictment) which is as it were the Declaration. I proceed to the Pleas of the Parties accused, which are denominated ex­ceptions.

[Page 144] Now, the Pleas or Exceptions in Indict­ments or Appeals, are these §.

Auterfoitz attaint d'un auter offence, Au­terfoitz Acquit, Auterfoitz convict be mesme le felony devant Iudgement, Auterfoitz convict d'un auter felony, & auterfoitz at­taint de mesme lz offence.

Of these briefly in order.

1. Auterfoitz attaint d'un auter Offence.

It is a sore saying, which some Men have to plead for themselves, viz. That they are already condemned to be hanged, and ask Judgment, whether during the attainder, they should answer to the selony, whereof they are condemned, or to any other: And this plea serveth whether the Party condemned hath already forfeited, as much as he can for­feit; so that it is to no purpose to travel him any further. But in some special cases, when there is some end of it, a Man already con­demned, may be arraigned again

As if a Man attainted of felony,Co. 3. Inst. f. 213. were guilty of Treason also, at the time of the felony committed, he may now be put to answer the Treason, notwithstanding his At­tainder of felony, because the King thereby was entitled to have the forfeiture of all his Landes, of whomsoever they were holden. 1. H. 6. 5. Otherwise it is, if the Treason were committed after the Felony; or at the [Page 145] least, if it were after the Attainder had of the felony, for then the Title vested in the Seigniours, before the Kings Title, might not be devised by matter accruing ex post facto: but if a Man be attainted of Treason, he cannot be after attainted of a former Treason. v. Cro. 2. part. Sr Walter Rawleighs Case: 495.

But the Queries may be,

Qu. 1. Whether in divers Appeals of Robbery against one Person, be shall be attaint at every one of their Suits?

Resp. It is answered,The wo­mans Law­yer lib. 5. sect 13. that if divers Men have divers Appeals of Robbery against one, to the end that every Man may have again his goods, wereof he was robbed, by making fresh Suit, he shall be attaint at every one of their Suits.

Qu. 2. Whether an Appeal of Robbery doth lye for a Robbery done before the felony, of which the Party was attainted?

Resp. It is answered, that the Party may have his Appeal of Robbery,Co. 3. Inst. f. 213. for a Robbery done before the felony, whereof he was at­tainted; because in the Appeal he is to have Restitution of his goods, besides Judgment of death.

Qu. 3. Whether a Man attainted of Petit Larceny, can be after attainted of Felony?

Resp. It is answered, If a Man be attain­ted of Petit Larceny, he may be attainted of felony,Ibid. for the which he shall have Judgment of death, because it is an higher offence, and is to have another Judgment.

Qu. 4. Whether a Man attainted of felony, [Page 146] and pardoned, shall answer at the Kings Suit, to other felonies committed before, and whereof he was not indicted at the time of the At­tainder?

Resp It is answered, that per aliquos vi­detur quod ita, as well as at the Suit of the Party in an Appeal, yet some held otherwise, 10. H 4. That a Man can die but once at the Suit of the King, and he that is pardoned, is as a New Man, all Judgments, as against the King, being determined.

But note, If a Man be adjudged to his Penance of Paine,Dyer 14. Eliz. 308. Coblans Case. [...]ast, and Dure; yet he may be [...]impeached for any former felony, be­cause the Judgment is not given for the felony, but for his Contumacy.

2. Auterfoitz acquit.

This Plea the Common Law doth allow, because it commandeth, that a Mans life should not be put in Jeopardy twice for one, and the same offence. But then the Acquital must be of the very same offence, or else his Plea is to no purpose: Therefore if two Men be indicted of felony as principals, and after­wards by another Indictment, it is found, that one of them did the felony, and the other did feloniously receive him, after the felony committed; he that is secondarily indicted, and arraigned as accessary, shall not be dis­charged, by pleading arraignment, and ac­quital upon the first Indictment, for the of­fence is not supposed the same, and one, but [Page 147] committed at divers dives, 27. Ass. Pl. 10. And this for Accessaries after the felony: But when felony is done by force of Commanding, and procurement of another, he that shall be arraigned as Accessary, may plead that he was acquit, &c. though it were as principal, and the offences were at divers daies; for vulnus, prae [...]eptum & factum, sunt quasi unum factum.

Note, in an Indictment or Appeal of death,Co.3. Inst. f. 213, & 214. if it be found that he killed him in his own defence, he is acquited of the felony for ever.

3. Auterfoitz convict de mesine le fe­lony devant Iudgement.

If a Man commit murder, and be indicted,Co. Lib. 4. Hole­crost [...]s case. convict, or acquitted of Man-slaughter, he shall never answer to any other Indictment, of the same death, for all is one; and the same felony for the same death.

Wetberel brought an Appeal against Darby of murder,Co. lib. 4, fol. 40. a. the Defendant pleaded on cul­pable, and was found guilty of Man-slaugh­ter, and had his Clergy; afterwards he was indicted of murder, and upon it arraigned at the Kings Suit, and he pleaded the former conviction in the Appeal at the Parties Suite, and it was adjudged a good Barre, ad there­upon discharged, for this was a good Barre at the Common Law, and restrained by no Statute, and the reason is, because the Life of Man shall not be put twice in Jeopardy for the same offence.

4. Auterfoitz convict d'un auter felony.

Before the Statutes of Qu. Eliz. c. 4. and 18. Eliz. c. 6. If a Man had committed di­vers felonies, if he had been indicted of the last, and had the benefit of his Clergy, he could not have been impeached for any of the former felonies; albeit for the same he could not have had his Clergy: by the Act it is pro­vided, that notwithstanding the allowance of such Clergy, he may be impeached for any former offence, for which he could not have had his Clergy.

5, and last, Auterfoitz attaint de mesine le offence.

Anterfoitz attaint of the same felony, was a good Plea,Co. 3. Inst. 213. as well in an Indictment, as in an Appeal at the Common Law: But by the Stat. of 3. H. 7. c. 1. in an Appeal of death, at the Suit of the Party, auterfoitz attaint de mesme le mort, is no Plea at this day: But in case of an Indictment of death at the Suit of the King; auterfoitz attaint de mesme le mort in Appeal is a good Plea.

Auterfottz attaint bd murder, is a good Plea to an Indictment,Co. 3. Inst. f. 213. &c. of Petit treason of the same death; for in effect it hath the same Judgment, and the self same forfeiture.

So likewise a Man may be attainted of [Page 149] Man-slaughter, it is a good barre to an In­dictment of murder of the same death, and e [...] converso.

8. Of Judicial Acts, relating to publik Crimes.

Touching these Judicial Acts, there are worthy of consideration these particulars.

The manner how Causes criminal are brought to Tryal. 2. The Judgment or Sen­tence upon that Tryal or Arraignment. 3. The Execution of that Sentence. 4. The means whereby the Judgment or Execution may be escaped, or delayed.

No Man is said to be arraigned,1. The man­ner of Ar­raigning a delix­linquent. but meer­ly at the Suit of the King, upon an Indict­ment found against him, or other Record, wherewith he is charged. And there the Arraignment of the Prisoner is to take order,Co. Litt. 263. a. that he appear, and for the certainty of the Person, to hold up his hand, and to plead a sufficient plea to the Indictment, or other Record; whereupon they which follow for the King may orderly proceed.

If the party accused of Treason or Felony, &c. do at his Arraignment before the Judge deny the offence; or as we say, plead Not­guilty, then shall he be tryed by a Jury of 12 [Page 150] Men, dwelling nigh to the Vill, where th offence was comitted, such Men as to the Party accused be nothing allyed, to certify the Judge upon the truth of the fact: which at their ap­pearance, the Party arraigned may challenge peremptorily upon his own dislike, without shewing any cause, in favorem vitae, the num­ber of twenty in murder, and other Felo­ny: And in case of High treason, Petit trea­son, and Misprision of treason,Co. Litt. 156. b. he may chal­lenge to the number of 35: And if he chal­lenge peremptorily above 35 in case of Trea­son,Co 3. Inst. f. 227 & 228. or Petit treason, he forfeiteth his goods, and Judgment of pain, fort and dure shall be given against him, as one that refuseth the Tryal of Law, by challenging 3 full Juries.

Otherwise in case of Felony, for no Law giveth forfeiture for challenging above twenty; but the Court is to over-rule the Challenge.

But note,Co. Litt. [...]56. b. that in case of Treason or Fe­lony, the Party arraigned may challenge for just cause, as many as he can.

2. But if the Party upon his Arraignment, in case of Felony, refuse to answer, according to Law, or say nothing, he shall not be Judged to be hanged,Co. Litt. 391. a. Co. 3. Inst. [...]4, & 217. but for his contempt, he shall undergo pain, fort and d [...]re, which makes no Attainder for the felony, nor forfeiture of his Lands, nor corruption of Blood: Other­wise in case of High treason; for if the Party refuse to answer according to Law, or say nothing, he shall have such Judgment by Attainder, as if he had been convicted by Ver­dict or Confession.

[Page 151] 3. If the Party-arraigned be found Guilty by Verdict or Confession,Co. Litt. 391. a. then he is said to be convicted, which is before he hath Judge­ment or Sentence; and thereupon he doth forfeit his goods and Chattels.

But note, that the begging of the goods or Estate of the Delinquent, indicted of any Treason, Felony or other offence, before he be convicted and attainted is utterly unlaw­full,Co. 2. Inst. 48. because before Conviction and Attain­der nothing is forfeited to the King,Co. 3. Inst. 1 [...]7 & 229. nor granted by him.

And besides it either makes the Prosecu­tion more violent and undue,Co 3. Inst. 229. then quiet and equal proceeding of Law and Justice would permit; or else by under hand Commission and agreement, hinder the due course of Ju­stice, for examplary punishment of the offen­der.

Note further, that before Indictment, the goods or other things,2. Of the Judgment or Sentence pronoun­ced. of any criminal can­not be searched, Inventoried, or in any sort seised, nor after Indictment seised and re­moved, or taken away, before Conviction, or Attainder.

Thus much of the manner touching the Arraignment of a Delinquent.

Assoon as Judgment, or Sentence is pro­nounced by the Judge, the Party arraigned is said to be attainted, & mort en Ley: But though the Delinquent by the Attainder be a dead Person in Law,Co. 2. Inst. f. 215, 213. yet maugre the Attain­der, his Body may at the Suit of a Subject be taken in execution, upon a Judgment or Stat. [Page 152] &c. Cro. 1. part. Og­nell, v. Paston. And he may be executed for Treason, or felony, notwithstanding such Execution had against him.

As to Attainder,Cro. 1. part. Trussells Case. take these Queries, to­gether with Solutions.

Qu. 1. Whether there be a diversity betwixt an Attainder and an Entry into Religion?

Resp. There is a great difference between an Attainder of treason or felony, and an En­try into Religion; for he that is attainted of treason or felony,Co. 3 Inst. f. 219. hath capacity, and may pur­chase Lands to him and his Heirs; but so can­not he that is entered into Religion.

Qu 2. When a felony is perpetrated, whether there be a Discrimination in Law betwixt pur­chasing of Lands before, and after Attain­der?

Resp. If a Man commit felony, and after purchase Land, and then is attainted, he has capacity to purchase, but not to hold it, for in that case the Lord of the fee shall have the Escheat:Co. Litt. [...] 2. b. But if a Man attainted of felony purchase Lands, in this case the King shall have it by his prerogative, and not the Lord of the fee; for a Man attainted hath no capa­city to purchase, but only for the benefit of the King.

Qu. 3. Whether a Person attainted after a Pardon, can have an Action of Battery, &c. committed before the Pardon?

Resp. Co. 3. Inst. 215. If a Person be beaten, or maimed, or a Woman attainted, be ravished, after Pardon, they shall have an Action of Battery, Appeal of Maime, or Rape.

[Page 153] It is to be known,Co. Litt. 390. b. Perkins ss. 27. that there be two man­ner of Attainders; the one after appearance, and that in 3 manners: by Confession, by Bat­tel or by Verdict, the other upon Processe to be outlawed, which is an Attainder in Law: But upon every one of these Judgment ought to be given, otherwise it shall not be said an Attainder.

Now, as upon conviction a Delinquent forfeiteth his good and Chattels; so upon At­tainder, that is by Judgment given, his Lands and Tenements are forfeited: But touching the forfeiture of Lands, there is a diversity betwixt an Attainder of felony, by outlawry upon an Appeal, and upon an Indictment; for in the case of an Appeal of death or other felony,Co. Litt. 390. b, & 13. a, b. Process being awarded against the De­fendant, and hanging the Process the Defen­fendant conveyeth away the Land, and after is outlawed, the conveyance is good, and shall defeat the Lord of his Escheat: But if a Man indicted of felony, and hanging the Process against him, he conveyeth away the Land, and and after is outlawed, the conveyance shall not in that case prevent the Lord of his Es­cheat, For in the case of the Appeal, the Writ containeth no time, when the felony was committed; and therefore the Escheat can relate, but to the outlawry pronounced; but the Indictment contriveth the time, when the felony was committed; and therefore the Escheat upon the outlawry shall relate to that time.

But note, that in case of an Indictment, [Page 154] there is also a difference observed; for (as hath been said) it shall refer to the time al­ledged in the Indictment for avoiding of Estates, Charges and Incumbrances made by the Felon, after the perpetration; but for the mean profits of the Land,Co. Litt. 390. b. Plowd. Com. f. 488. b. it shall relate only to the Judgment, as well in the case of out­lawry, as in other Cases.

There is a Question raised in the Case be­twixt Grosse and Gayer; viz. Whether an At­tainder to a praemunire, Cro. 3. part. f. 172 & 173. shall have relation to the offence for the forfeiture of his Lands, or only to the time of the Judgment pronounced: But the Judges did give no Resolution of it, being a point of difficulty:

Note;Perkins [...]ect. 29. All the Attainders, as to Goods and Chattels, shall have relation but unto the Judgment given; so that a gift, &c. made of such Goods, by a Felon before the Judgment, is good.

Touching Alienations by a Criminal, the Civil Law says thus:

Post contractum capitale Crimen donationes factae non valent ex constitutione Divorum Se­veri & Antonini.D. 39. 5. 15.

Si quis mortis causa donaverit,D. 39. 6. 7. & poena fue­rit capitis affectus, removetur donation ut imperfe­cta, quamvis caeterae donationes sine suspitione poe­nae factae valeant.

Having shew'd the Law touching Aliena­tions, I shall present to the Reader's view the things imply'd at this day, both in the Judgment of Treason and Felony.

1. In the Judgment of High Treason.

In the Judgment relating to Crimen laesae Majestatis, is imply'd at this day,

First,Co. 3. Inst. 211. the forfeiture of all the Traitors Man­nors, Lands,Co. 3. Inst. 19. 26. H. 8. c. 13. 33. [...]. 8. c. 20. 5. & 6. E. 6. c. 11. Tenements, and Hereditaments, in Fee simple, or in Fee Tayle, of whomso­ever they be holden.

Also of Rent-Charges, Rents seck, Com­mons, Corodys, and other Hereditaments, which are not holden, for in case of High treason, the Tenure is not material.

Also of Uses,33. H. 8. c. 20. 5. E. 6. c. 11. Co. lib. 7. Inglefields Case. Conditions (unless insepara­bly knit to the Person) of Rights of Entry, of Lands in the Right of the wife, during the Coverture; of the profits of Land, which the delinquent hath for life, during his life; of trusts in Chattels Reals; but not of Free­hold. Cro. 2. part f. 512. Pl. 23. vid. An­dersons Reports. Inglefeilds Case, Co. lih. 12. f. 6. Dyer 288. b, & 289. a.

Note, that Rights of Actions, where the Entry is taken away, are not forfeitable.

Secondly, his Wife to lose her Dower.

Thirdly he shall lose his Children, for they become base and ignoble.

Fourthly, he shall lose his Posterity, for his Blood is stained and corrupted, and they cannot inherit to him, or any other An­cestor.

Fifthly, all his Goods and Chahttels are for­feited, &c. and reason is (says Coke) his Body, Lands Goods, Posterity, &c. should be torn, [Page 156] pulled asunder, and destroy'd that intended to tear and destroy the Majesty of Government.

2. In Judgement of Felony.

A felon impliedly is punished in these parti­culars.

1. He doth lose his Children,Co. Litt. f.. 41. a. 392. a, b. Co. 3. Iust. 47. that they shall become base and ignoble.

2. He shall lose his Posterity, for his blood is stained and corrupted, that they cannot in­herit unto him, or any other Ancestor.

3. He shall forfeit all his Lands and Tene­ments, which he hath in Fee, and which he hath in taile, during his life.

4. All his Goods and Chattels.

Note, that before the Stat. 1. E. 6 c. 2, & 5. E. 6. c. 11. the Wife of a Person attainted of Misprision of treason, Murder or Felony, losed her Dower; but since she is dowable by these Statutes. Hitherto of the Judgment or Sen­tence it self.

In doing of Execution,3. Execu­tion of the Judgment pronoun­ced. both in Treason and Felony, two things are worthy of the Reader's notice.

Co. 3 Inst. f. 52. 211. 212.

1. That it be done by the right Officer, as the Sheriff or Marshal, for if any other execute offendours it is felony.

Execution must be made by the Sheriff or Marshal, according to the Judgment for it is a maxime in the Law of England, Non alio modo puniatur quis quam secundum quod se habeat Condemnatio.

[Page 157] Punishment may be avoided or escaped,4. Of the means by which the Judgment or Execu­tion may be avoided in part, or in all. in part or totally, either

• 1. By the means of Justice, as
  • By Writ of Error, or Falsifying the Attainder. [...]
• 2. By the means of Mercy, as
  • By the Kings Pardon, or By Restitution: of these in their or­der.

2. Of Writs of Error.

If the Judgment be erronious, both the Judgment and Execution thereupon and all the former proceedings shall be reversed by Writ of Error: but if the the former proceed­ing, and the Execution be erronious, the Ex­ecution only shall be reversed.

2. Of Falsifying Attainder.

To falsify in Legal understanding is to prove false,Co. 3. Inst. f. 210. that is to avoid, or to defeat the Attain­der, in Latin Falsare, seu falsificare, falsum fa­cere.

Wheresoever the Judgment is void, or coram non Judice, Co. 3. Inst. f. 231. the party is not driven to his Writ of error, but may falsify the ttainder by Plea, shewing the special matter, which proveth it void, or coram non Judice: In which case the Party forfeiteth neither Lands, nor Goods.

If a Man committeth Treason, or felony and [Page 158] is thereof attainted in due form of Law, and after this Treason or Felony, is pardoned by a general Pardon, hereby the foundation is self, viz. Treason or Felony, being by Autho­rity of Parliament is discharged & pardoned;Dyer 20. Eliz 135. Co. Lib 6. f. 13 [...] 14 in Arun­dels Case. the Attainder (being builded thereupon) cann't stand, but may be satisfy'd and avoided by Plea, for he hath no other Remedy by Writ of error, or otherwise.

If A, be indicted before the Coroner for the death of another, and that A, fled for the same, hereby are all the Goods and Chattels of A, forfeited,Co. [...]. Inst. f. 233. which he had at the time of the Ver­dict given: and this cannot be falsified by Traverse. If the Party be arraigned upon the same Indictment before Justices of Gaol deli­very, and is by Verdict acquitted of the Felo­ny, and that he did not fly for the same; yet he shall forfeit his Goods and Chattels:Co. Litt. 373. b. But such a fugam f [...]cit may be satisfy'd by matter in Law; for if the Indictment be void or in­sufficient, there is no forfeiture.

3. Of Pardons.

Touching Pardons, these particulars are worthy of observation.

Pardon in Latin is called Perdonatio, 1. The Ety­mology of the word Pardon. Co. 3. Inst. f. 233. which is derived a per and dono: per is a Preposition, and in the Saxon Tongue for is orvor: as to forgive is throughly to remit, and fore-think is to repeat, & forbear is to bear with patience.

A Pardon is a work of Mercy, whereby the King doth remit, or forgive a felonious [Page 15] offence,2. The De­scription of a Par­don. perpetrated against his Imperial Crown, either before Attainder, or Convi­ction, or after.

A Pardon (says one) is twofold,3. The Di­vision of Pardons. one ex gratia Regis, the other per Course del Ley, by Course of Law. Pardon ex gratia, is that which the King in some special regard of the Person, or other circumstance, sheweth or affordeth upon his prerogative Royal or pow­er. Pardon by course of Law, is that which the Law in equity affordeth for a light offence, as Homicide casual, when one killeth a Man having not such meaning. West. Part. 2. Symb. Tit. Indict. sect. 46.

All Pardons of Treason or Felony (says Coke) are to be made by the King, and in his Name only; and are either general, or special: All Pardons either general or special, are either by Act of Parliament (whereof the Court in some Cases shall take notice) or by the Char­ter of the King (which must always be plea­ded:) And these again are either absolute, or under Condition, Exception or Qualifica­tion.

General Pardons are by Act of Parliament,Co. 3. Inst. f. 234. and if any of these Pardons be general and ab­solute, the Court must take notice of them, though the party plead it not, but would waive the same.

No particular Pardon, be it at the Corona­tion or any other,4. The Al­lowance of Pardons. or any offence or offences whatsoever, that is absolute without any con­dition, &c. need any Writ of Allowance; but when the Pardon is conditional by force of the [Page 160] Act of 10.Co. 3. Inst. f. 234, 235. E. 3. c. 2. there a Writ of Allow­ance out of Chancery, testifying that the Con­dition is performed, viz. surety found accord­ing to that Act, may be had, or the Party may plead the finding of Surety, &c. and vouch the Record.

Touching Allowance of Pardons, I shall mention two Cases out of Crokes Reports.

First, upon the 14 day of November 1640, Sir Matthew Mennes, Cro. 3. part [...] Mints his Case. Knight of the Bath (who was convicted of Man-slaughter, and had his Clergy and his burning in the hand was respi­ted: and now he pleaded his Pardon, whereby the burning in the hand, and all other Felo­nies committed by him, & alia malefacta, be­fore 8th of July last were pardoned: and there was an especial Clause, that he should not find Suretys for his behaviour, and the Pardon bore date 31 of Octob. last. And although there were many misdemeanors by him after the said 8th of July, for which he deserved to be bound to the good behaviour, yet he had his Pardon allow'd, and was discharged from find­ing Suretys, &c.

Secondly, Sir Henry Linley, who was in­dicted of Treason,Cro. 1. part. Lin­ley's Case. being brought to the Bar, and demanded, whether he could say any thing why the Court should not proceed upon the In­dictment, which was before Commissioners of Oyer & Terminer, he produced the Queens Par­don, without any Writ of Allowance thereof. And Pope Second Clerk of the Crown, inform'd the Court, that the Presidents were, that in case of Treason, it was used to allow of the Pardon; [Page 161] but not in Felony▪ whereupon the Pardon was allowed.

4. Of Restitutions.

All that is forfeited to the King by any At­tainder, &c. he may restore by his Charter, But if by the Attainder the Blood be corrupt­ed, that must be restor'd by Authority of Parliament: and the reason wherefore the King may by his Charters pardon the Execu­tion, and restore the Party or his Heirs to the Lands forfeited by the Attainder, and remain­ing in the Crown, is for that no Person hath thereby any prejudice, but to make restitution of his Blood, the King cannot do it, but by Act of Parliament, because it should be to the prejudice of others.

And the Rules are,

Non poterit Rex gratiam facere cum injuria, & damno aliorum.

Quod alienum est, dare non potest Rex per suam gratiam.

Quacunqne forma Princeps alienat, salvum manet Jus tertii.

Aliorum honores, aliis damnorum occasionem fierinon oportet.

Note, Of Restitutions by Parliament, some be in Blood only, (that is to make his Resort as heir in Blood to the Party attainted, and other his Ancestors, and not to any Dignity, Inheritance of Lands, &c.) and this is Resti­tutio [...], secundum quid, seu in partem. And [Page 162] some be general Restitutions, to Blood, Ho­nours, Dignities, Inheritance, and all that was lost by the Attainder;24. 3. Inst. 0. and this is Restitu­tio in integrum; and Restituere (generally) nihil aliud est, quam in pristinum statum redu­cere.

Thus now, concluding this slender Trea­tise with the Kings Mercy, that is convey'd to his Subjects by Pardons and Restitutions, I humbly apply to our most Gracious Soveraign the words, which Seneca did once intimate to the Roman Emperor §.