Witchcraft.

WItchcraft at Common Law punished with death, as He­resie, by Writ De Haeretico Combu­rendo.

The Statute of 1 Jac. 12. the on­ly Law now in force against it, and divides it into two Degrees.

I. Witchcraft in the first Degree made Felony without Clergy, divi­ded into four Species.

• 1. Invocation or Conjuration of an Evil Spirit,
• 2. Consult, covenant with, en­tertain, employ, feed, or reward any Evil Spirit to any intent, al­though no act done thereupon.
• 3. Take up any dead Person, or any part thereof, to be employed or used in Witchcraft Charm, al­though not actually used or em­ployed.
• 4. Exercise any Witchcraft, In­chantment, Charm, or Sorcery, whereby any Person shall be killed, [Page 7] destroyed, consumed, or lamed in his or her Body, or any part there­of (which requires the act to be done, viz. laming, consuming.)

These and all Accessory before to suffer as Felons without Clergy, be­cause not specially excepted.

II. Witchcraft in the second De­gree.

• 1. To take upon them by Witch­craft, Inchantment, Charm, or Sorcery to tell where Treasure is to be found: They that take upon them to do it, though they cannot, yet within this Law.
• 2. Or where Goods lost or stollen may be found.
• 3. Or to the intent to provoke a­ny Person to unlawful Love; these Clauses come under the word [take upon].
• 4. Whereby Goods or Chattels shall be destroyed (which requires an actual destroying, and not a bare taking upon them).
• 5. Or shall use Witchcraft to hurt any Person, though the same be not effected.

[Page 8]The punishment of these,

1. The first Offence a years Im­prisonment and Pillory.

2. The second Offence Felony: but this requires

• 1. An actual conviction and Judgment for the first.
• 2. The second Offence must be committed after Judgment for the first.

The like in Forgery, Transporta­tion of Sheep, &c.

But the Consequence upon At­tainder, viz. Corruption of Blood, and loss of Dower and the Lands Forfeiture, saved.

3 Inst. p. 47.And Note, a Saving against Cor­ruption of Blood saves the Descent; and saving the Land to the Heir prevents corruption of Blood as to that.

Concerning Offences against men immediately distinguished in the Judgment or Event, Capital, or not Capital.

Capital, either by Common Law or Statute, and these either Trea­son or Felonies.

[Page 9]Treason, either

• High Treason,
• or Petty Treason.

High Treason.

AND this is thought an Offence at Common Law; yet be­cause there be some mixture of In­troductions of new Treasons by Sta­tutes, would be considered toge­ther.

1. Considering High Treason, it is distinguished into four kinds.

• 1. That which concerns imme­diately the King, his Wife, or Children.
• 2. That which concerns his Office in the Administration of Justice.
• 3. That which concerns his Seal.
• 4. That which concerns his Coyn.

Before we come to these Particu­lars, [Page 10] some things to be generally premised.

1. That those that have such dis­ability upon them that disables them to act reasonably, cannot com­mit Treason, viz. Non compos men­tis, and Infants within Age of dis­cretion; yet Quaere 3 H. 7.

3 Inst. p. 4, 6.And therefore if a Traytor be­comes Non compos mentis before Conviction, he shall not be Arreign­ed; if after Conviction, he shall not be executed.

3 Inst. p. 4, 5.An Alien Enemy, committing an hostile act, dealt with as an Ene­my.

An Alien Army committing any Treason are Traytors within the Law.

2. The Statute of 25 E. 3. redu­ced and settled all Treasons, and by that means all Treasons that were before are reduced, and the 1 Ma. reinforced the Statute 25 E. 3. and reduced all new Treasons to the old Standard of 25 E. 3. and so all Treasons declared between 25 E. 3. and 1 Ma. were abrogate.

[Page 11]3. All Treason includes Felony, therefore if the Indictment want proditoriè, a Pardon of all Felonies discharges it.

Now concerning the kinds of High Treason.

Compassing and imagining the death of the King, Queen, or Prince, and declaring the same by some open Deed.

I. What is a Compassing the death?

Declaring by an open act a de­sign to Depose or Imprison the King,3 Inst. p. 6, 12, 38. is an Overt act to manifest the com­passing of his Death.

II. What a King?

1. A King before his Coronation,3 Inst. p. 7. a King within this Statute when the Crown descends upon him.

2. A King de facto, Ibid. and not de jure, a King within this Act, and a Treason against him is punishable, though the right Heir get the Crown.

3. A Titular King, that is not Regnant; as the Husband of the [Page 12] Queen not a King within this Act, and the Stat. 1 & 2. Ph. & Ma. c. 10. but the Queen is.

4. The right Heir to the Crown, yet not in Possession, therefore is not a King within this Act.

III. What the King's Wife?

3 Inst. p. 9.It extends not to the Queen Dowager.

IV. What the eldest Son and Heir of the King within this Act?

The second Son, after the death of the eldest, within the Act.

The eldest Son of the Queen Regnant within the Statute.

Ibid.The Collateral Heir apparent, as Roger Mortimer 11 R. 2. the Duke of York 39 H. 6. not Son and Heir within this Act, yet Quaere.

V. What an Overt act requisite to make such comparing Treason?

3 Inst. p. 12.1. An Overt act must be alledged in every such Indictment, & proved.

2. Compassing by bare words is not an Overt act, as appears by ma­ny temporary Statutes against it, 1 El. c. 6. 13 El. c. 1. but the same set down by him in writing is an Overt [Page 13] act; yet now it has been adjudged that words are an Overt act, and the Law taken accordingly.

3. Conspiring the death of the King, and providing weapons to effect it, or sending Letters to second it; assembling People to take the King into their power; Lord Cob­ham's writing Letters to a Foreign King to invade, an Overt act.

Conspiring to levy War no O­vert act unless levied,3 Inst. p. 14. because re­lates to a distinct Treason.

II. Treason levying War against the King.

1.3 Car. 2. c. 1. Conspiring or compassing to levy War, without a War de facto, no Treason; but if a War levied, the Conspirators Traytors as well as the Actors: This appears by the Stat. 13 El. c. 1. that made such Conspiracy Treason during the Queens life.

2. Raising a Force to burn or throw down a particular Inclosure only a Riot; but if it had been to have gone from Town to Town, and cast in all Inclosures, Bradshaw's case;2 And. p. 4, 5. [Page 14] or to change Religion, or to in­hance the Salaries of Labourers, a levying of War, because the Ene­my publique.

3. Joyning with Rebels pro ti­more mortis, and recessed quam ci­to potuerunt ad Castles no Treason, 3 Inst. 10.

4. Holding a Force or Castle a­gainst the King's Force a levying of War.

III. Treason adhering to the King's Enemies, giving them Aid within the Land and without.

1. What adhering?

Giving Aid and Comfort to them; surrendring the King's Castle for re­ward?

2. What an Enemy?

The Subject of the King becom­ing a Rebel, he that out of the Realm succours him, this not adhe­ring to an Enemy within the Clause.

3 Inst. p. 11.An Enemy coming hostilely into England, shall be dealt with as an Enemy executed by Marshal Law, or ransomed; but a Subject assisting [Page 15] shall be dealt with as a Traytor.

The Scots invading England in the Queens time adjudged Enemies, though Scotland then in Amity. Lord Herris Case, 3 Inst. p. 11.

3. Within the Land or without, how that Foreign Treason shall be tried.

• 1. At Common Law for a Fo­reign Treason the Indict­ment and Trial must be where the Land lies.
• 2. Per Stat. 35 H. 8. c. 2. yet in Force it may be tried or inquired of in B. R. or by Commissiion in any County where the King appears; the King's Signiture may be either to the Commission or Warrant thereof.

Treason done in Ireland is with­in that Statute, Perrot's Case.1 And. p. 262.

Per Stat. 28 H. 8. c. 15.Trot. Ab. p. 382. Treason upon the Sea inquirable and triable by Commission in any County; at Common Law it must be before the Lord Admiral.

[Page 16]IV. Treason, Violation.

1. The King's Wife extends not to a Dowager, if she consent 'tis Treason in her.

2. The Prince's Wife, same Law as before.

3. The King's eldest Daughter then living.

Thus far of Treason that relates to the King's Person and nearest Re­lations, wherein generally

1. There must be an Overt act to manifest the Evidence, and word of mouth is Overt act, as it has been adjudged, vide the Statute of 13 Car. 2. cap. 1.

2. That it must be made appear by manifest proof, and not by con­jectures.

3. He must be lawfully attaint thereof, either by Confession or by his Peers in his life time.

And therefore if a Person be slain in open War he forfeits nothing, nei­ther can he be attaint in such case, but by Parliament.

Thus far of Treasons relating to the King immediately; now follows [Page 17] that which is interpretative Trea­son; Killing the Chancellor, Trea­surer, Justice of one Bench or other, Justice in Eyre, or of Assise, or Oyer and Terminer in their place, doing their Offices.

1. This extends but to the Per­sons here named, not to the Lord Steward, Constable, or Marshal, or Lords of Parliament.

2. It extends to those only during their Office.

3. It extends only to killing, not wounding without death.

But by Stat. 3 H. 7. c. 14. com­passing to kill the King, or any of his Councel made Felony.

Counterfeiting the Great Seal or Privy Seal.

• 1. It must be an actual coun­terfeiting thereof, compas­sing to do it no Treason.
• 2. Affixing the Great Seal by Chancellor without War­rant no Treason.
• 3. Fixing a new Great Seal to to another Patent is a great Misprision, but no [Page 18] Treason; nor a Counterfeit­ing within this Statute.
• 4. Aiders and Consenters to such Counterfeiting are within this Act.
• 5. The Counterfeiting of the Privy Sign or Sign Manual no Treason within this Act, but made so by the Statute 1 Ma. c. 6.

V. Treason concerning the Coyn.

1. Counterfeiting the Kings Coyn, this was Treason at Common Law, and Judgment only as of Petty Treason.

But whereas Clipping, &c. is made Treason by subsequent Sta­tutes, the Judgment is to be hang'd, drawn, and quartered, because in­troductive of a new Law.

Herein considerable,

1. What shall be a Counterfeiting, Clipping, Washing, and Filing of Mony for lucre or gain, any of the proper mony of the Realm, or of other Realms, allowed to be cur­rent [Page 19] by Proclamation, not within this Statute, but made High Trea­son by Stat. 18 El. c. 1. but with­out corruption of blood or loss of Dower.

2. What is Mony?

This extends only to proper Mo­ny of this Realm.

But now,

1 Ma. c. 6. Forging or Coun­terfeiting Mony made cur­rant by Proclamation, is High Treason.

14 El. c. 3. Forging of For­reign Coin not current here; Misprision of Treason in the Forgers, their Aiders and Abettors.

And Note, the bare forging of the King's Coin, without uttering, is Treason.

The second Offence concerning Mony declared Treason is, if any Person bring into this Realm coun­terfeit Mony.

1. It must be Counterfeit.

2. Counterfeited to the similitude of English Mony.

[Page 20]3. Brought from a Forreign Realm, and therefore not from Ire­land barely.

4. Brought knowingly.

5. Brought, and not barely ut­tered here: But if false or clip't Mony be found in his hands, by the Statute De Moneta if he be suspici­ous, he may be arrested till he have found his Warrant.

6. He must merchandize there­with, or make payment thereof.

Concerning High Treason made by the subsequent Statutes in force.

5 El. c. 1. Refusing Oath of Su­premacy upon second tender Trea­son, without corruption of Blood.

Per 5 El. c. 1.Extolling power of Bishop of Rome Premunire, by bringing in Bulls, or putting in execution, or re­conciling to the See of Rome there­by, Treason.

Bringing in Agnus Dei Premu­nire, 23 El. c. 1. Absolving Sub­jects from Obedience, or reconciling them to Obedience of Rome, Trea­son [Page 21] in 27 El. 2. Priest coming into England, not submitting in two days, Treason. The like for Eng­lish men in Forreign Seminaries.

Petty Treason.

IS confined by Stat. 25 E. 3. to three Particulars.

1. Where a Servant kills his Ma­ster.

This extends to some other Ca­ses:

• 1. Servant kills his Mistress.
• 2. Servant kills his Master's Wife.
• 3. Where a Servant upon Ma­lice taken, during his Ser­vice, kills his Master after departure from his Service.

2. Wife killing her Husband.

If Wife and a Stranger kill the Husband, petty Treason in the Wife, Murder in the Stranger.

[Page 22]If the Wife or Servant procure a Stranger to kill her Hus­band or Master, the Procu­rer accessary only to Mur­der: But if she procure a Servant to do it, Treason in both.

3. Ecclesiastical, Secular or Re­gular, kills Superior.

Note, Aiders, Abetters and Pro­curers to Petty Treason are within this Act.

This Act not taken by Equity.

C.P.C. f. 20.Son kills Father or Mother, 'tis Petty Treason, receiving Meat, Drink, or Wages.

The Judgment in Petty Treason for a Man to be hang'd and drawn.

A Woman to be burnt.

Crom. 18.Whatsoever will make a Man guilty or principal in Murder, will make him guilty or principal in Petty Treason.

But if the Servant kill the Master upon a sudden falling out, this is not Petty Treason, but Manslaugh­ter.

If the Servant or Wife be of Con­federacy [Page 23] to kill the Husband or Ma­ster, and be in the same House, though not in the same Room, they are principal, and guilty of Petty Treason, for 'tis a presence.

Of Felonies.

AND first of Felonies of death of a Man.

Now for Felonies, they are ei­ther by Common Law or Statute Law.

Felonies by Common Law of four kinds:

• 1. Such as are committed against the Life.
• 2. Such as are against the Goods of a Man.
• 3. Such as are against the Habi­tation of a Man.
• 4. Such as are against the Process of Publique Justice.

[Page 24]Felonies committed against Life of two Natures.

1. That which is committed a­gainst his own Life, Felo de se.

2. Committed against another Man's Life involuntarily.

• 1. Per infortunium, and there­in of Deodands.
• 2. Per necessitatem, in Defence of Justice, in defence of self.
• 3. Voluntary, without Malice, with Malice.

Felo de se.

1. The Person.

• 1. As in other Felonies, so in this, the Person that com­mits it must be of years of discretion, Compos mentis, otherwise there is no Forfei­ture: Therefore if a Luna­tick, during his Lunacy, a Man distract by force of Di­sease, or Non compos mentis, kill himself, no Felony.
• 2. As in other Felonies the death must ensue within a year and day after stroke.

2. The act may be voluntary, in­voluntary [Page 25] in some Cases. If A. assault B. and B. falling down with his knife drawn, A. in pursuit to kill B. by haste falls down upon the knife, A. is Felo de se, and forfeits Goods.

But if B. was standing on his De­fence with his knife drawn,Stam. P.C. 16. C.P.C. p. 54. A. runs upon the Weapon and kills himself, not Felo de se.

3. Conviction.

• 1. If the Body can be seen, then the Conviction before Coro­ner, super visum Corporis, not traversable.
• 2. If not seen,
  C.P.C. p. 55.
  then before Ju­stice of Peace, and then tra­versable by the Executor or Administrator.

In the same manner, if enquired in B. R. in same County, traversa­ble.

4. Forfeiture relates to stroke. Villain strikes himself, Lord seizes his Goods, Villain dies, King shall have them.

Of what?

Joint things in Action, all forfeit­ed, [Page 26] unless in case of Merchants; Joint things several Moieties for­feited: But Joint Chattels in Hus­band and Wife, all Forfeit for Of­fence of Husband.

Chancemedley Felony of death of another, either involuntary, or voluntary.

Involuntary per infortunium, ex necessitate.

Involuntary per infortunium.

Chancemedley, where a Man doing a lawful act, without intent of hurt to another, and death casu­ally ensues.

As shooting at Rovers, or at a Bird, or hewing a Tree and the Hatchet-head flies off, or a School­master in reasonable manner beat­ing a Scholer, or a Father his Son, or a Master his Servant.

Doing a lawful thing that may breed danger, and giving warning; Justing by command of the Prince.Crom. 28. C.P.C. 56.

But if the act be unlawful, then death ensuing Manslaughter or Mur­der.

[Page 27]Shooting at a Deer in anothers Park, the Arrow glanceth and kil­leth a stander by, Manslaughter.

Throwing stones or shooting in the High-way, and death ensuing,C.P.C. 56. Manslaughter.

But if a man,C. P. C. 57. knowing people passing by in the street, throw a stone over the wall, Murder.

Playing at Hand-sword without command of Prince, death ensuing, Manslaughter.

So that an unlawful act, without an ill intent, makes it Manslaugh­ter; with an ill intent, Murder.

And where it is found involunta­ry per infortunium, causeth forfei­ture of Goods; but a Pardon of Course upon Special matter found.

Deodand.

But there is a death per infortuni­um without the default or procure­ment of another; fall from a Tree, or by a Horse or Cart; and the thing that occasions the death is Forfeited and Deodand; wherein considerable,

[Page 28]1. What forfeited as a Deo­dand.

C.P.C. 58.If a man fall from a Cart or Ship in Freshwater, 'tis a Deodand; o­therwise in Saltwater.

2. If an Infant under fourteen be slain by fall from Cart, Horse, or Mill, no Deodand; but if slain by a Horse, Ox, or Mill, then a Deo­dand.

Dalt. Inst. c. 97.If a man kill another with any Sword, a Deodand.

2. When forfeited,

When found by Inquisition, there­fore the Jury ought to find the price; this is before the Coroner.

Homicide ex necessitate.

This of several sorts:

1. In reference to Justice.

2. In defence of his Person, House, Goods, &c.

Homicide ex necessitate in refe­rence to Justice, of several kinds:

• 1. In execution of Justice.
• 2. In advancement of Justice.

[Page 29]Homicide in Execution of Justice requires certain prescripts.

1. That the Judgment given be by one that hath Jurisdiction in the Cause.

If a Justice of Peace give Judg­ment in Treason, the Execution thereof Murder in Judge and Offi­cer.

But if he give Judgment of Felo­ny in Treason, Felony in the Judge, but not in him that executes it.

2. That it be done by a lawful Of­ficer.

Therefore if a Stranger of his own head, or the Judge that gives the Sentence, Executes, when it is to be done by Sheriff, Felony.

3. That it be done pursuant to Judgment.

Judgment to be hang'd, Sheriff beheads him, Felony.

Homicide in advancement of Ju­stice in Causes

• Criminal,
• Civil.

[Page 30]1. In Causes Criminal.

If a Sheriff or Bailiff, having war­rant to arrest a Person indicted of Felony, and he will not obey, and suffer himself to be arrested, the Bailiff kills him, no Felony.

The same if any Person pursues upon Hue and Cry, or otherwise to arrest a Felon that flies.

If a Felon arrested break away from his Conductors to Goal, they may kill if they cannot otherwise take him.

But in this latter Case there must be a Felony done.

If a Prisoner assault his Goaler, and he kill his Prisoner, no Fe­lony.

Rioters or forcible Enterers or Deteinors, standing in opposition to the Justice's lawful warrant, and one of them slain, no Felony.

Keeper or Parker may kill hun­ter, if they fly or defend them­selves.

2. In Civil Causes.

Though Sheriff cannot kill a man who flies from the execution of a [Page 31] Civil Process, yet if he resist the ar­rest, the Sheriff or his Officers need not give back, but may kill the As­sailant; so if in the arrest and stri­ving together, Officer kill him, no Felony.

Now touching all the former Homi­cides these things observable.

1. There must be no malice co­loured under pretence of necessity; for if it be, it alters the Case, and makes it Murder.

2. The Party that did the Fact must be arreigned, and upon Not Guilty pleaded the Special Matter must be found.

3. Upon this Special Matter thus found, the Party is to be dismist without any forfeiture or pardon purchased.

Thus of Homicide ex necessitate in reference to Publique Justice: O­thers there are that are grounded upon Private Interest, and they are of two kinds.

1. Justifiable, and consequently inducing [Page 32] no forfeiture at all, nor need­ing pardon.

2. Excusable, and yet inducing forfeiture.

1. Justifiable and inducing no for­feiture, where a Person comes to commit a known Felony.

• 1. If a man come to burn my House, and I shoot out of my House and kill him, no Fe­lony.
• 2. If a Woman kill him that assaulteth her to ravish her, no Felony.
• 3. If Thieves assault me in the Highway, or in my House to rob me, I, or any of my Servants kill them, no Felo­ny or Forfeiture.

But if the assault in my House were not to rob, but to beat me, &c. there 'twould be on­ly se defendendo, and Goods forfeited, and a Pardon of course to be granted, because they came not to commit a known Felony; for it can­not be judged whether he meant to kill me.

[Page 33]If one come to enter into my house, claiming Title,Dal. c. 98. and I kill him, Manslaughter.

Homicide excusable se defendendo, where though it save the Life, yet the Goods are forfeited; this re­quires these things.

1. It must be inevitable necessity, yet in case of justifiable Homicide, as of a Thief that comes to rob me, or by an Officer resisted in the Executi­on of an Arrest,C.P.C. f. 56. the Party need not give back to the Wall.

But in this Homicide se defenden­do, C.P.C. 57. the Party that is assaulted not excusable, unless he give back to the Wall.

But if the assault be so furious,Dalt. c. 48. C.P.C. 56. and in such a place that giving back would endanger his life, he need not give back.

A man fights, and then falls to the ground, then flying not necessa­ry.

2. It must be done in his own de­fence.

[Page 34] C.P.C. 56.If A. be assaulted by B. before a mortal wound given A. gives back until he come to the wall, and then in his defence kills B. this is se de­fendendo.

But if mortal wound first given, then Manslaughter.

Dal. c. 98. Crom. 26.If A. upon malice praepense strike B. and then fly to the wall, there in his own defence kills B. this is Murder.

But if there be malice between A. and B. A. strikes first, B. re­treats to the wall, and in his own defence kills A. this is se defenden­do.

If malice be betwixt A. and B. A. assaults B. B. retreats to the wall, and then kills A. in his own defence; if it be in the Highway he shall be discharged, if not, se defen­dendo. Copston's Case.

Thus far of Homicides invo­luntary.

[Page 35]Homicide voluntary is either ex malitia praecogitata, or sine ma­litia, the former Murder, the latter Manslaughter.

1. Who shall be said a person kil­ling?

A man that is Non compos mentis kills another, this is no Felony; the same for a Lunatick during his Lunacy.

But he that incites a madman to kill another is a principal Murder­er.

A man dumb kills another, Felo­ny.

An Infant within years of discre­tion kills another, no Felony; as if he be nine or ten years old.

But if by circumstance it appear­eth he could distinguish between Good and Evil, it is Felony:Crom. 27. as if he hide the body, make excuses, &c.

But in such Case Execution in prudence respited to get a Par­don.

[Page 36]2. What said Malice?

It is either implied or expressed.

C.P.C. 52.Implied malice is collected either from the manner of doing, or from the person slain, or from the person killing.

1. Malice implied in the manner of doing.

Poisoning wilfully any man, im­plied malice.

If a man do an act that must ap­parently introduce harm, and death ensue; as to run among a multitude with a Horse used to strike.

But note, If it were with an in­tention to do harm, then Murder; if without such intention, Man­slaughter.

The like of throwing a stone over a house among many people, the intention of doing harm makes it Murder; want of such intention, Manslaughter, because an unlawful act.

For an intention of evil, though not against a particular person, makes malice.

[Page 37]Killing any person without pro­vocation, Murder.

A. comes to B. who resists and strikes A. kills him, Murder.

A. Distorts his mouth,42 El. Brames Case. and laughs at B. who thereupon kills him, Mur­der.

2. Malice implied in respect of the person killed.

If a Watchman or Constable, or any that comes on his assistance, do­ing their Office, be killed, it is Mur­der,4 R. Hamdens Case. though Killer knew him not to be such.

If any Magistrate or Minister of Justice, having a lawful Warrant, be killed, 'tis Murder: As where a Serjeant comes to Arrest,

• 1. Though in the Night.
• 2. Though on Sunday.
• 3. Though upon Arrest he shew not out of what Court, or whose Suit.
• 4. Though Process Errone­ous.
• 5. Though he shew not his Warrant or Mace where 'tis not demanded.

[Page 38] 9 R. Mackleys Case.But if Officer do what is not war­rantable, as break open a window to arrest, there if slain, Manslaugh­ter.

Malefactors come into a Park, Parker shoots, they fly, he pursues, they kill him, Murder in all; for their first entry was with malitious intent.

3. Malice implied in respect of person killing.

A. assaults B. to rob B. who re­sists, A. kills him, Murder.

Prisoner by Duress of Goaler comes to an untimely end, Mur­der.

Executing Martial Law in time of Peace, Murder.

Malice express considerable,

• 1. In the principal in the first degree that doth the act.
• 2. In the principal in the second degree, that is aiding, abet­ting, &c.
• 3. In Accessaries before Fact.

1. Principal in first degree.

If a person have no particular [Page 39] malice against any particular per­son, but comes with general reso­lution against all Opposers,Crom. 20. if act unlawful, and death ensue, it is Mur­der: As if it be to commit Riot, enter into a Park.

2. If there be malice between A. and B. and they meet and fight, al­though A. gives first blow, yet if B. kill him, Murder.

If there be malice between A. and B. A. assaults B. and flies to wall, there in his own defence kills B. by some Murder, but Quaere.

If there be a quarrel between A. B. A. challenges B. who declines it, but at length upon importunity, and to vindicate his Reputation, meets and fights, and kills A. Murder. 14 Jac. Taverner's Case.

If A. and B. fall out upon a sud­den, and they agree presently to fight, and each fetches a Weapon & go into field, and one kills the other, this only Manslaughter, because the blood never cooled: but otherwise if they had appointed to fight next day.

[Page 40] A. and B. fall out, A. saith he will not strike, but will give B. a pot of Ale to touch him, B. strikes, A. kills him, Murder.

If A. and B. are in malice, A. challenges the field, B. refuses to meet, but saith he shall go to mor­row to such a Town, A. meets him and assaults him, B. kills him, Man­slaughter, and no Murder.

The Child of A. beats the Child of B. who runs home to his Fa­ther, and he runs three quarters of a mile, beats the other Child, and he dies, Manslaughter.

3. If malice be not continuing to death, no Murder.

A. and B. combat upon malice, and are parted, and after they meet and combat upon the sudden, and one kills the other, by some not Murder, because the first Malice sa­tisfied.

If the party killed had wounded at first combat the party slaying, Quaere.

A. and B. are at malice, and re­conciled, and after upon a new [Page 41] occasion fall out and kill, no Mur­der.

4. Tho malice did not rise so high as death, but intended only to beat the party, yet if malice, it is Mur­der if death ensue.

A Keeper of Esterly Park finds a Boy stealing wood, and binds him to his Horse tail; Horse runs away and kills Child, Murder, for it was a de­liberate act. Cr. Car. 131. Hollo­way's Case.

5. The malice intended to one, e­greditur persona, and makes death of another, this act makes it Mur­der, and qualifies it in same manner, as if it had had its due effects.

A. having malice at B. strikes at him, and misses him,Dy. 128. and kills C. this is murder in A. and if it had been without malice, Manslaugh­ter.

A. having malice at B. assaults him, and kills his Servant, Mur­der.

A. lays poison to kill B. and C. by misadventure takes it and dies, Murder in A. contrary if it had [Page 42] been laid to kill Rats, then per in­fortunium.

A. and B. combat upon malice, C. comes to part them, A. kills C. per ascuns, Murder in both; and if the falling out were sudden, then only Manslaughter in him that kills him Quaere.

6. Malice must be of Corporal danger to the party.

2. Principal in second degree, that are aiding and abetting.

1. If two or more come together to kill, rob, or beat a man, or to commit a Riot, and one of them kills a man, this is murder in all them of that party that are present aiding or abetting him thereunto,St. P.C. c. 40. or that were ready to aid him, though but lookers on; otherwise if they came there by chance.

2. All are said to be present that are in the same House, though in a­nother Room, or in the same Park, though half a mile distant, and out of view; therefore if they come to commit a Felony, such persons aid­ing and abetting shall be said to be present.

[Page 43]3. A. and B. fall out, and ap­point field, A. takes C. his Second, B. takes D. his Second, A. kills B. this is doubtless Murder in C. Crom. 19. Dal. c. 93. and it hath been held Murder in D. also, for it is a compact; but it seems o­therwise.

4. If A. and B. having malice praepense meet and fight, and C. the Servant of A. not acquainted there­with, takes part with A. his Ma­ster, and kills B. Del. c. 93. Dy. 128. Crom. 100. this is Murder in A. and only Manslaughter in C. the same Law if C. came in suddenly and took part with A. and kill B.

3. What malice in Accessary be­fore Fact.

A. commands B. to kill C. with a Gun, he kills him with a Sword, A. is accessary to this Murder, be­cause killing is the substance.

But if he command B. to kill C. and he by mistake kill D. this is Murder in B. but A. is not accessary thereunto.

A. commands B. to beat C. who beats him, whereof he dies, this is Murder in B. and A. is accessary, [Page 44] because death ensued upon the act commanded.

4. What is killing?

Poison, Weapon, Gun, Bow, Crushing, Bruising, Smothering, Strangling, Famishing, inciting Dogs, laying a Sick man in the cold.

Laying an Infant in an Orchard under Leaves, and he is stricken with a Kite.

St. Dal. c. 93.A man keeps a Beast used to strike knowingly, and ties it not up, the Beast kills a man, Felony by some, by others not, but a gross mis­demeanour. 3 E. 3. Cor. 311.

5. What person killed?

It must be a person in rerum na­tura.

Dal. c. 93.If a Woman quick with Child take a potion to kill it, and accord­ingly it is destroyed without being born alive, a great misprision, but no Felony; but if born alive, and after dies of that potion, it is Murder.

Ibid.The like if dies of a stroke given by another in like manner, counsel before birth to destroy it, and after [Page 45] the Child is born destroyed accord­ingly, the counsellor is accessary.

6. What a place within the Realm?

Stroke and death in partibus transmarinis not punishable at Com­mon Law, but before Constable and Marshal.

Stroke and death upon Sea in­quirable before Admiral, according to Stat. 28 H. 8. c. 13. But stroke upon the Sea, and death upon the Body of the County, not punishable at all.

If stroke in one County, and death in another, the party shall be indicted where death hap­ned.

An accessary in County of A. to a Felony committed in County of B. the accessary after Certificate of the Conviction and Attainder of the principal, may be Arreigned in the said County of A. where he was accessary.

7. The party must die within year and day of stroke, poison, &c.

Manslaughter.

KILLING another upon a sudden falling out, or pro­vocation, or unjustifiable act, Man­slaughter.

1. What a sudden falling out?

Two combat and part, and pre­sently come together and fight,C.P.C. 18. or one presently fetcheth a Weapon and killeth the other, or they pre­sently fetch them weapons, and go into the field, and one kills the other, Manslaughter.

Diverse Rioters enter into ano­thers house forcibly, and eject the people; afterwards they being in possession, the party ejected, with twenty more, comes in the night to the house, endeavours to fire it, one within shoots and kills one of the assailants, and ruled to be Man­slaughter, because their entry and holding with force illegal, and not [Page 47] Murder, because sudden provocati­on.

So A. claims title to a house of B. A. attempts to enter and shoots at the house, B. shoots and kills A. ad­judged Manslaughter.

Two fall out and fight,Dal. c. 94. one breaks his Sword, a stranger standing by sends him another, and he kills therewith, Manslaughter in both.

2. What a sudden provocation?

Two strives for the wall, and one kills the other, Manslaughter.

3. What unlawful act, whereupon death ensuing will make Man­slaughter?

If the unlawful act be deliberate, and tend to the personal hurt of a­ny immediately, or by way of ne­cessary consequence, death ensuing, Murder.

But if either such deliberation or intent of personal hurt be wanting, Manslaughter.

Two play at Foils, and one kills the other, Manslaughter. Sir John Chicester's Case.

A man throws a stone at another, [Page 48] which glanceth and killeth another, Manslaughter and not Murder, be­cause no malitious intention to hurt; not per infortunium, because doing an unlawful act.

There is a particular Manslaugh­ter wherein Clergy is oust, per Stat. 1 Jac. 8. wherein,

1. He that is ousted of Clergy by that Statute, must be especially In­dicted pursuant to that Statute.

2. It extends to him that actual­ly gave stroke, not to those that are present.

3. Need not Conclude contra for­mam Statuti.

4. Although the Indictment be special upon that Statute, yet the Jury may find general Manslaugh­ter. 23 Car. B. R. Page's Case.

Larceny.

WE come to Offences Capital, which refer to the Goods of any Person, viz. Larceny, which is of two kinds;

• Simple Larceny,
• Mixt and complexed Larceny.

Simple Larceny of two kinds:

Grand Larceny, of value of 12 pence.

Petit Larceny, under that va­lue.

Simple Larceny; a felonious and fraudulent taking away by any per­son of the meer personal goods of another, not from the person, nor out of his house, to the value of 12 pence.

[Page 50]I. What shall be said a Felonious taking, Imports two things:

1. A taking necessarily, the Indict­ment must be Cepit; if it be Felony, abduxit Equum not sufficient.

If a person finds goods lost, and converts them,C.P.C. 108. though it was animo furandi, yet no Felony.

If a man hath a bare charge of goods, Felony may be by him com­mitted: As a Butler that hath a Charge of Plate, Shepheard of sheep; the like of him that hath a bare special use, as the guest that hath Plate set before him.

But he that hath a possession by delivery cannot thereof commit Fe­lony.

A Carrier hath goods delivered to him, and carries them away, no Fe­lony.

A Clothier delivers Yarn to a Weaver to weave, he carries or im­bezels it, no Felony.

But this hath two Exceptions.

1. If the privity be determin'd, then it may be Felony.

A. delivers a Pack or Tun of Wine [Page 51] to a Carrier, he opens it, and takes out Goods or Wine, animo furandi, Felony.

So if A. delivers goods to B. to carry to a certain place appointed, and after takes it animo furandi, Felony.

2. By Stat. 21 H. 8. c. 7. whereby if a Servant goes away with goods of his Masters delivered to him a­bove value of 40 shillings, herein

• 1. Extends not to Apprentice or Servant within eighteen years.

• 2. Requires a Delivery.

  If one Servant deliver goods to the other, this is a delive­ry by Master.

  If the Master deliver an Obli­gation, or deliver Cattel to sell, and Servant receives money and departs with it, no Felony; like if he had gone away with Obligati­on.

• 3. He must go away with it.

  Wastfully consuming thereof, no Felony.

• [Page 52]4. Now by Stat. 1 E. 6. c. 12. he may have his Clergy.
• 5. He must be a Servant at time of delivery, and going a­way; therefore for imbezel­ling after Master's death, Stat. 3 [...] H. 6. c. 1. is provided.
• 6. If a Servant receive his Ma­sters Rents, and go away with them, not within the Sta­tute.

C.P.C. 47.If a man, seeing a Horse in the Pasture of the Owner, having a mind to steal him, obtains a Reple­vin, and thereby hath the Horse de­livered, this a Felonious taking.

If A. feloniously take my Horse, and B. feloniously takes him from him,Crom. 34. B. may be appealed or indict­ed as of a felonious taking from me. Stat. 33 H. 8. c. 1.

II. What a carrying away?

C.P.C. c. 47.A Guest takes sheets out of the bed, brings them into Hall with an intent to carry them away, but is apprehended before this, a taking a­way.

[Page 53] A. takes horse of B. with an in­tent to steal him, but is apprehend­ed before he can get out of Pasture, this a taking away.

A. kills sheep, strips them,Crom. 33. carries away their skins, Felony; so if he pull of the wooll.

III. By whom, and who such a person as may commit Lar­ceny?

An Infant under fourteen years may commit Larceny,Dal. 104. but prudence to respite Judgment; yet under fourteen burnt in the hand. Presi­dents.

A Feme covert may by her own act commit Larceny, and in such case the husband may be Accessary to the wife (but not è converso) in receiving her.

But she cannot feloniously take her husband's goods; and though she take and deliver them to a stran­ger, yet no felony in the stranger.

If husband and wife do both a fe­lony, this is a felony in both,Dal. 104. and both [Page 54] shall be arreigned for it, though some Opinions to the contrary, which Opinions are now Law.

If wife commits murder by coer­cion of her husband, murder in both; but if theft, no Felony in her; but a bare Command excuseth her not.

But if a servant commit theft by coercion of his master, it is no Felo­ny.

IV. What meer personal Goods?

1. If they are in the realty, or annexed thereunto, no Larceny: As Corn or Grass growing, Apples on Trees, stealing a Chest of Char­ters, no Felony, though Chest above value.

Taking Lead off a Church no Fe­lony; otherwise if he leave it a while and then come and take it.

Taking an Infant Ward no Felo­ny.

2. If they are of a base Nature, as Mastiffs, Dogs, Bears, Foxes, Monkeys, Ferrets, or their Whelps, no Felony of them; but of [Page 55] Hawks reclaimed Felony may be.

V. What said the Goods of a­nother?

1. He that hath a special proper­ty, as Bailiff, &c. they are his goods pro tempore.

2. He that takes the goods of a Chappel in time of vacation,Dal. 103. in­dictable pro bonis Capellae, so bona Parochianorum, bona mortuorum, bona ignoti, &c.

So to take the shroud off a person buried,C.P.C. c. 47. and it shall be bona execu­torum.

But taking of Treasure trove, Wrecks, Waifs and Strays before seisure, no Felony.

Taking an Obligation Felony, be­cause in action.

Taking fish in a River no Felony, but in a Net, Trunk, or Pond, Fe­lony, because not at their natural liberty: So of old Pidgeons out of the house.

Where a man hath property only ratione loci, or privilegii, in [Page 56] things ferae naturae, Coneys, Deer in my Ground, or Park, or Warren, no Felony.

But if reduced to tameness, and fit for food, as Deer, Coneys, Cranes, Partridge, Pheasants, he that steal­eth them, knowing them tame, committeth Felony.

So of Swans marked or pinioned or Swans unmarked if tame, kept in a Mote, Pond, or private River.

Where a man hath a property ratione impotentiae in things wild by nature, as young Hawks in the nest, young Pigeons in the nest, Felony thereof.

Taking of Eggs of Hawks or Swans out of the ground of another, no Felony, but punishable by Sta­tute.

But taking any thing domitae na­turae, as Ducks, Hens, Geese, Tur­keys, Peacocks, or their Eggs; or Domestick beasts, as Horses, Mares, Colts, &c. or their young, Felo­ny.

VI. When this shall be said a fe­lonious taking.

If A. Crom. 34. steal goods in the County of B. and carry them into the Coun­ty of C. he may be appealed or in­dicted in the County of C. for Lar­ceny, but can be indicted for Rob­bery only in the County of B.

VII. Of value of twelve pence or above.

Nota, West. 1. c. 15.That in a Grand Larceny it must be above value of twelve pence, if under it Petty Larceny.

If two steal goods to the value of thirteen pence, grand Larceny in both.

If one person at several times, or at one time steal four pence,Dal. c. 101. Crom. 30. St. P.C. 24. at ano­ther six pence, at another three pence, in all amounting to above twelve pence, from the same per­son, all these put together in one Indictment, amount to grand Lar­ceny.

[Page 58]If a man be indicted for stealing goods to the value of ten pence, and the Jurors find specially, as they may, the value but ten pence, 'tis but petty Larceny.

And note petty Larceny is Felo­ny, though not of death, and for this he shall forfeit Goods, or be subject to some Corporal punish­ment.

Robbery.

COmplicate or mixt Larceny which hath another degree of guilt in it.

1. For that it is a taking from the person.

2. For that it is a taking out of the house.

1. Taking from the person.

• 1. Where the person is put in fear, and then 'tis Robbe­ry.
• 2. When not put in fear, and then 'tis Larceny from the person.

Robbery is a felonious and vio­lent taking away from the person of another goods or money to any va­lue, putting him in fear.

1. Violent and putting him in fear; the words of the Indictment run, violenter & felonice, and that [Page 60] distinguishes him from a Cutpurse.

2. Taking away.

1. An assault to rob without ta­king away any thing, no Felony.

If a thief, with or without wea­pon drawn, bid the party deliver his Purse, and he doth it, this is a taking to make it Robbery.

If a thief command to deliver his purse, and he deliver, and then the thief finding little in it, deliver it back, this is Robbery.

If a thief compel the true man by fear to swear to fetch him a sum of money, which he doth accord­ingly, and thief receives it, Rob­bery.

If true man's purse be fastned to his girdle, thief cuts girdle, purse falls to the ground, no Robbery; but if thief take up purse, though he let it fall again, Robbery, though he never take it up more.

All that come in company to rob Principals, though one actually do it.

A. B. and C. assault D. to rob him in the High-way, but rob him not, [Page 61] for he escaped A. rides from the rest in the same High-way, and robs E. Crom. 34. out of view of the rest, and for this B. and C. arreigned and hanged,Pudseys Case. though assented not, because they all came to the end to rob.

3. Taking from the person.

If the true man, seeking to escape, cast his Purse into a Bush, or let fall his Hat, if the thief take it, it is Robbery.

Taking a thing in the presence, is in law taking it from the person.

If one take or drive my Cattel out of my Pasture in my presence,Dal. c. 101. this is Robbery, if he make an as­sault upon me, or put me in fear. But if he take away any thing from my person without putting me in fear by assault or violence, no Rob­bery, and the Indictment runs that he took it from the person violent­ly and feloniously,Dal. ibid. putting him in fear.

4. Of what value soever under twelve pence.

Now though Robbery and sim­ple Larceny are both Felony, yet [Page 62] they differ in these Respects.

Principal and Accessary before are ousted of Clergy, but not in sim­ple Larceny. Stat. 23 H. 8. c. 1.1 E. 6.12. 25 H. 8.3.4 & 5 Phil. & Ma. c. 4. Nota, speaks of Robbe­ry in or near the High-way.

2. The form of the Indictment.

An Indictment of Robbery sup­poseth an assault, beating and wounding, and taking from the person felonice, or at least assault and putting him in fear felonice & violenter cepit à persona. Other Indictments, though of a taking from the person, yet not violen­ter.

3. In case of other thefts, though from person, not felony of death, unless exceed twelve pence: But here 'tis Felony of death if never so small.

Nota, Taking a mans goods out of his shop before his face is Rob­bery, as if he had taken it from the person; and it is nothing to the purpose though the thief say, I have right to this, or this is [Page 63] mine, if he have no colour.

Larceny from the person, from the House.

Larceny from the person without putting in fear, which may be ei­ther by picking the pocket, or cut­ting the Purse, which is supposed to be done clam & secrete à perso­na.

In this Case 8 El. c. 4. if the In­dictment pursue the Statute, which is secretly without the knowledge of the party, clam & secrete, he is ousted of his Clergy.

But if it be under value of twelve pence,C.P.C. c. 16. then it remains petty Larce­ny, as before; for the Statute did not alter the Offence, though it took a Priviledge.

Larceny from the person which is neither clam & secrete à persona, nor with putting in terror, nor so laid in the Indictment, nor so found by the Jury. Dyer. 224.17 Jac. Har­man's Case.

Larceny receives another aggra­vation [Page 64] when it is taken from the person of a man.

Per Stat. 23 H. 8. c. 1.Robbing any person in the dwel­ling house of the owner, his wife, children, and servants being with­in, and put in fear, oust of Clergy in case of Conviction and Accessary before.

Felonious taking of goods to the value of five shillings in the day time, out of any dwelling house or out-house, though no person with­in, oust of Clergy per Stat. 39 El. c. 15.

These have a mark upon them as Larceny complicate, and therefore oust of Clergy.

Piracy.

TO this we add Piracy and Depredation on Sea.

This at Common Law conceived petty Treason,C.P.C. c. 49. if done by a Subject: but this alter'd by Stat. 25 Ed. 3. since that Statute an offence triable by Civil Law till 28 H. 8.15.

The Stat. 28 H. 8. alters not the offence, but it removes only an of­fence by Civil Law (and therefore a pardon of all Felonies did not dis­charge it) and gives a trial per course of Common Law.

1. It extends not to Accessary: but if Accessary were at Sea, triable per Civil Law; if at Land, by no Law: for Stat. 2, 3 E. 6. extends not to it.

It extends not to Offences in Creeks or Ports within the Body of [Page 66] a County, because punishable by Common Law.

3. Though it give forfeiture of Life, Lands, and Goods, yet no Corruption of Blood.

4. Paine fort & dure in cases of standing mute.

Note, Clergy est oust per cest Stat. en Felonies, and so in Manslaugh­ters.

Quaere super Lord Co. si ascun offence super altum mare soit felony. 3 Ins. 111.

Burglary.

WE come to offences against the dwelling or habitation; those of two kinds:

• 1. Burglary.
• 2. Arson, or burning of Hou­ses.

Burglary by the Common Law is, when a person in the night time breaketh or entreth into the Mansion House of another, to the intent to commit some Felony within the same, whether the felonious intent be executed or not.

I. What shall be said in the Night?

By some after Sun set and before Sun rising it is night. Dal. c. 99.

But it seems so long as the Coun­tenance [Page 68] of a man may be discovered it is day.C.P.C. c. 14. Coron. 293.

II. What Breaking or Entring?

The entring into a house with the doors open is a breaking in Law, but here not sufficient without an actual breaking: Therefore if door be open, or window open; and the Thief draw out the Goods thereby, no Burglary.

But if the Thief break the win­dow, draw the latch, unlock the door, break a hole in the wall, these are breaking.

And as there must be a breaking, so there must be an entring.

Setting the foot over the thre­shold, putting the hand, or hook, or pistol within the window, door.

Turning the key where the door is locked on the inside, an Entry.

In some cases Burglary without actual breaking.

Divers come to commit Burglary, one does it, the rest watch at the [Page 69] Lanes end, Burglary in all.

A Thief goes down a Chimney to rob, Burglary.Dal. c. 99.

Thieves having an intent to rob,Ibid. raise Hue and Cry, and bring Con­stable, to whom the owner opens door, and when they come in, they bind Constable and rob the owner, Burglary.

The Thief assaults the house, the owner for fear throws out his mo­ney, it seems not Burglary, but Rob­bery.

A Thief gets into the house on day time by doors open,Ibid. lies there till night, then robs and goes away, no Burglary. But if he break open the door to go out, Burglary:

The Servant opens the window to let in a Thief, who comes in and steals, Burglary in the Stranger, but Robbery in the Servant.

If A. enter into the Hall by door open, the owner retires into a Chamber, and there A. breaks in, this a Breaking and Entring.

If Thieves enter [...] through a hole [...] no Burglary.

[Page 70] A. lies in one part of the House, B. his servant in another, between them a Stair-foot-door latched,Trin. 16 Jac. Edmonds C. the servant in the night draws the latch, and enters his Masters Cham­ber to murder him, Burglary.

III. What a Mansion House within the Law?

The Church a Mansion house within the Law. The Outbuildings, as Barn, Stable, are part of the Mansion house, and Burglary may be committed in them.

Burglary may be committed in a mans Mansion house, though all persons be out upon occasion.

So if a man hath two houses, sometimes lives in one, sometimes in another.

A shop parcel of a Mansion house.

A Chamber in an Inns of Court, where a person usually lodges, a Mansion house.

But a Booth is not, therefore re­medy specially provided per Stat. 5 E. 6. c. 9.

[Page 71]But an Indictment quod fregit clausum ad ipsum interficiendum, no Felony, for no Mansion house.

A. leases to B. a shop, parcel of his Mansion house, to work in, where B. works in the day, which is broken, ruled not Burglary, be­cause severed per Lease.

IV. With an intent to commit some Felony.

If the house be broken and en­tred with an intent to commit a Trespass, as to beat the owner, no Felony.

If with an intent to commit a Rape, by some no Burglary, be­cause no Felony at Common Law; but this seems otherwise, though the Felony be not done.

The Indictment runs, Burgla­riter & felonice domum &c. fre­gerunt vel intraverunt ad ipsum &c. interficiendum, & per Stat. 18 El. c. 7. Clergy taken away in all Burglaries.

[Page 72] Memorandum, If a Burglary be committed in Middlesex, and the Felon carries the Goods into Dor­setshire, if Goods be of value of twelve pence it is Felony, and the benefit of Clergy taken away by 25 H. 8. so that they may try him where he is taken, and they usual­ly write upon the Margent of the Indictment, that it is for Burglary in another County.

Arson.

BUrning is a Felony at Common Law by any that shall malici­ously burn the house of another.

Burning,

Setting fire to a house, without burning it, or any part of it, no Fe­lony; but if part of the house be burnt thereby, 'tis Felony by Com­mon Law.

Maliciously.

A. intending to burn the house of B. thereby burns the house of C. this is Felony; and he may be Indicted, That ex malitia praeco­git' he burnt the house of C.

A. maliciously burnt his own house, to the intent to burn others, but burnt none else but his own, ru­led no Felony, but a great misde­meanour; [Page 74] upon which set in Pillory, and bound perpetually to good be­haviour. 9 Car. B.R. Hains's Case.

The House,

Inset house, or Outset house.

If parcel of Mansion house, as Sta­ble, Mill-house, Sheep-house, Barn, no Clergy: But burning of a Barn, not parcel of a Mansion house, if it hath Corn or Hay in it, Felony, o­therwise not.

But Felony not oust of Clergy, unless part of a Mansion house or Barn with Corn.

Burning the frame of an house by 37 H. 8. attempting to burn a stack of Corn by 3 & 4 E. 6. made Felony, both Repealed 1 Ma.

But in Northumberland, Cumber­land, Westmoreland, and Durham, Felony to burn a stack of Corn by 43 El. c. 3.

Nota, The Indictment of Bur­glary Domum Mansionalem; of Ar­son only Domum.

Escapes.

NOW we come to those Fe­lonies that are the hindrance of bringing a Felon to publick Ju­stice; they are of three kinds in re­ference to persons that cause it.

1. In the party himself.

• Breach of Prison.
• Escape.

2. In the Officer that permits it, Voluntary, Involuntary.

3. In a Stranger, that is Rescue.

1. Breach of Prison.

At Common Law it seems all breach of Prison Felony; but by Stat. 1 E. 2. nullus de caetero, qui prisonam fregerit, subeat Judicium vitae vel membrorum pro fractione prisonae, nisi causa, pro qua capt' & imprisonat' fuit, tale Judicium requirit.

[Page 76]And herein these things are in­quirable:

• 1. Who may Arrest or Impri­son?
• 2. What a Prison?
• 3. What breaking a Prison?
• 4. What cause that requires a Judgment to make this Felony?

1. Who may Arrest or Impri­son?

• 1. Why a private person?
• 2. Why a publick Officer?

1. Arrests by a private person, and that of two kinds:

• 1. Either commanded or en­joyned by Law.
• 2. Or permitted or allowed by Law.

C.P.C. 55.Arrests commanded by Law.

1. Persons present at the com­mitting of a Felony must use their endeavours to apprehend the Of­fender, otherwise they are to be fi­ned and imprisoned.

St. P.C. 29.Hence it is that if a Murder be committed in the day in a Town not inclosed, the Town shall be amer­ced; and if in a walled Town, be [Page 77] it night or day, the Town shall be amerced if Offender escape. Stat. 3 H. 7.1.

So it seems if one strike another dangerously, though death hath not yet hapned.

Upon Hue and Cry well levied,C.P.C. 52. every man may and must arrest the Offender upon whom it is levied, by Stat. Winchester: and want of pur­suit thereof is punishable by Fine and Imprisonment.

The manner of levying Hue and Cry where a Felony is committed, or a dangerous stroke given, is this:

Resort to the Constable, declare the Fact, describe the Party and the way he is gone, who thereupon is to raise the Town, be it by night or by day, and to give the next Con­stable warning, and he the rest.

I aid an Officer that has a lawful warrant in fait, or in Law,Dal. 249. to arrest a Malefactor.

And in these cases it seems it is in the power of such private person to break the house, if upon demand [Page 78] he cannot be admitted to take the Offender. 4 Ins. 177.

Videtur sur felony fait & just su­spicion ascun puit arrester.

3. N'est punishable licet Constable suffer luy d'escape.

A permissive Arrest per private person.

If a Felony in fact be committed, and a private person suspect ano­ther upon probable cause, he may be arrested, though in truth innocent. And these probable causes,

Hue and Cry levied, Company with the Offender, Goods in his Cu­stody, Living vagrantly, Common Fame.

But upon such suspicion he can­not break open the door of a house, but may enter the door being o­pen.

4 Ins. 179.The person arrested by either of these means must be brought to the Constable, and if Constable be not to be found to a Justice, and in case of a Felon known, put into Stocks or Common Goal till he be brought to a Constable.

[Page 79]Arrest per a publick Officer with­out Process of Law.

Nota, Whatsoever a private per­son may do in this case, an Officer as a private person may do.

Now these Officers,

1. Constable.

If complaint be made to a Con­stable of Felony committed, or of a dangerous blow given, though the party not dead, in case there be an assault upon the Constable, or in case there be any other breach of the Peace, the Constable may imprison the party in the Stocks, in the Goal, or in his House, till he can bring him before a Justice of Peace.

But if it be a bare breach of the Peace, unless it be in his view, he cannot arrest the party, but com­plaint must be made to a Justice of Peace, for the Constable is but Con­servator, not Justice of Peace, un­less a Felony be done.

If the Constable see an Affray, and the Malefactor fly into another County before arrest, he may pur­sue [Page 80] him and arrest him there, and must bring him before Justice of the County where arrested.

But if the Escape was after arrest, then he may retake him in another County, and bring him to the first County.

He may break a door open to take an Offender, where Felony committed, or dangerous wound given.

2. A Justice of Peace upon complaint may issue out his War­rant to arrest the party.

1. A general Warrant to search for Felony or stoln Goods, not good.

2. If a Justice hath cause of su­spicion, he may arrest a common person not as a Justice.

3. Upon complaint of a Felony committed, and when doubt may be of apprehending the Offender in assistance of the party suspecting, he may grant his Warrant to the Constable to apprehend the party, but the party suspecting ought to be present, because 'tis his arrest.

[Page 81]But by vertue of such War­rant doors cannot be broke o­pen.

4. But at Sessions the Justices may award a Capias against the person indicted, and by vertue thereof the Sheriff may break open a door.

A party being apprehended by such Warrant, is either to be Committed, Bailed, or Discharg­ed.

The Commitment by a Justice ought to be to Common Goal by Stat. 13 H. 6.12. and the Mittimus ought to be,

• 1. Under Seal.
• 2. To contain the Cause.
• 3. To have an apt Conclusi­on, viz. and there to stay till delivered by Law, otherwise Warrant void.

And note, That a person com­mitted for Treason, Felony, or otherwise, cannot be discharged till indicted and acquitted, or Ig­noramus found, or discharged by [Page 82] Proclamation by Kings Bench upon Habeas Corpus.

In order to the consideration of Arrests and Escapes, here fit to con­sider of Bail and Mainprise in cases of Felony.

• 1. What Bail is?
• 2. In what cases?
• 3. By whom?

Bail.

1. BAIL are Sureties taken by a person authorized, to ap­pear at a day, and to answer and be justified by Law.

The difference between Bail and Mainprise is, That

Mainprise are only Surety, but Bail is a Custody; and therefore the Bail may reseize the Prisoner if they doubt he will fly, or detain him and bring him before a Justice, and the Justice ought to commit the Prison­er in discharge of the Bail, or put him to find new Sureties: The like may be done by the Justices in case of inefficient Bail.

If a Justice of Peace take ineffi­cient Bail, and the party appear not, the Justice finable by Justices of Goal Delivery.

The sufficiency of Bail in respect [Page 84] of number two at least, and those Subsidy men in case of Felony.

And in respect of the sum, forty pounds at least.

Bail is either a certain sum, or cor­pus pro corpore, in which case the Offender not appearing, the Surety shall not be Executed, but Fined. 29 Assis. 44.

2. In what Cases?

1. Generally; To refuse Bail where the party ought to be bailed, the party refusing the same is fina­ble as a Misdemeanour; and admit­ting Bail when it ought not punish­able by Justices of Goal Delivery, or punished as a negligent Escape at Common Law, de quo infra.

2. Particularly; At Common Law Bail in all Cases but Homicide; But now the Stat. Westm. 1. c. 15. directs what Cases bailable, what not?

At this day in all Offences below Felony, the party accused is baila­ble, unless

1. Ousted by that Statute, or some other Statute.

[Page 85]2. After Judgment be given.

If a person be brought before a Justice, if it appears no Felony com­mitted, he may discharge him; but if Felony be committed, though it appears not that the party accused is guilty, yet he cannot discharge him, but must commit or bail him.

The cases wherein parties not bailable, are

1. In respect of the hainousness of the Offence.

• 1. In Charge of Treason against the King's Person, counter­feiting the Seal, Falsifying Money.
• 2. Arson, or burning Houses.
  Dal. c. 114. v. rep. sup.
• 3. In a Charge of Homicide.

1. In case of a Charge of Mur­der Justices of Peace cannot bail, but King's Bench may, and do it at discretion, for the Stat. West. 1. ex­tends not to that Court.

2. In case of Manslaughter, tho' it be se defendendo, and appear so to Justice of Peace, they cannot bail the party accused.

[Page 86]If he confess the Fact upon exa­mination, if taken with the man­ner, if apparently known or mani­fested that he killed another.

But if it be a non liquet, and the Charge but Manslaughter, there it seems they may bail.

Or if he had given a dangerous stroke, till party dead he may be bailed.

But such bailment where Man­slaughter or other Felony is com­mitted, must be

1. By two Justices of the Quo­rum.

3 H. 7. c. 9.2. After Examination.

St. 1 & 2 Ph. & Ma. c. 13.And these be all the persons ex­cluded from bail simply, in respect of the nature of the offence.

1. All Accessaries before or after any Offence bailable; but if Princi­pal be attainted, and Accessary in­dicted, he shall not be bailed until he hath pleaded to the Indict­ment.

2. Persons indicted of Larceny before Sheriff, if of good name.

[Page 87]3. Imprisonment for a light su­spicion, if of good name.

4. Indicted or accused of petty Larceny only.

5. Appeal of Approver after death of Approver.

6. Accused for Trespass, for which a man ought not to lose life or member, and if bail not taken away by a subsequent Stat. hence also a party indicted for Burglary or Rob­bery may be bailed.

2. As bail is ousted in some cases, in respect of the greatness and con­sequence of the Offence charged, so it is in respect of the notoriety of the Offence

For bail is, when indifferenter, whether guilty or no.

But when that indifferency is re­moved, the Offender otherwise bailable is become not bailable.

1. If a Person be Attaint by Out­lary of any Felony, yet if Defen­dant comes in and pleads in avoid­ance of the Outlary, be it in Ap­peal or Indictment, the King's Bench may bail him.

[Page 88]2. If he be convict by Verdict or Confession of any Felony, not bail­able.

But if a man be convict of Man­slaughter se defendendo, the Justices of B. R. or Goal Delivery, or speci­al Writ may bail him, but not Justi­ces of Peace: So if he have a Char­ter of Pardon.

3. He that becomes an Approver cannot be bailed.

4. He that Abjures cannot be bailed.

5. He that's taken with the man­ner not bailable, and consequently he that's taken freshly upon Hue and Cry, Bridges's Case. Justice of Peace fined 40 l. for bailing such.

6. He that breaks Prison not bail­able.

7. Open and notorious thievery not bailable.

But he that is taken for a light suspicion bailable.

But if Presumption strong, or De­famation great, he may refuse to bail him: This lies in discretion.

[Page 89]8. Those that are appealed by Approvers, unless

• 1. Approver die.
• 2. Approver wave his Ap­peal.
• 3. Unless he be of good name.

And the reason hereof, because when the Appealer accuses another, he confesses himself Guilty, and therefore induceth a presumption of guilt in another.

But this concerns not Justices of Peace, because no man can become Approver before them, because they cannot assign a Coroner; but they may take a Confession by way of E­vidence.

But a bare Indictment or Appeal did not induce such presumption that may hinder the bailing of a Person otherwise bailable. Westm. 1. c. 25.

But in Appeals of Death the Court in discretion admit not De­fendant to bail but upon weighty cause.

If the party be acquitted within [Page 90] the year upon Indictment, he is not to be discharged, but remanded or bailed at discretion, that an Ap­peal may be prosecuted against him.

3 H. 7. c. 1.3. Who may take bail, or bail Offenders?

Bail was taken either virtute brevis, or ex officio.

1. Bail taken virtute brevis, that was either General or Speci­al.

General Writs.

Homine replegiando.

Habeas Corpus.

Writ of Mainprise; this was di­rected to Sheriff, commanding him to deliver by the Mainprize of it the party indicted before him.

St. P. C. 77.But now by Stat. 28 E. 3. c. 9. these Inquests before Sheriff are ta­ken away, and consequently the Writ of Mainprize.

Special Writ, as where party is convict of Manslaughter se defen­dendo, Special Writ to certi­fie.

2. Bail ex officio.

[Page 91]1. The King's Bench, who have a higher Power than any other Power.

1. They may either in case of an Original Suit, by Indictment or Ap­peal before them; or upon an In­dictment or Commitment returned to them, by Habeas Corpus or Cer­tiorari, bail where another Court cannot.

In cases prohihited by Stat. West. 1. c. 15. v. 2. Inst. parol viscount & autres, & parol ne soient reple­visable.

2. Justices of Goal Delivery, who may bail in cases where Justices of Peace cannot, if it be a thing with­in their cognizance: As a man con­vict of Manslaughter se defendendo, or a person convict of Manslaugh­ter that hath a Pardon to plead.

1. Justices of Peace they cannot bail in any case, but where they have cognizance of the cause; therefore if taken with Process of Rebellion out of Chancery they cannot bail.

2. The Statutes that give power to Justices of Peace to bail in case of [Page 92] Felony, are 3 H. 7. c. 3. 1 & 2 Ph. & Ma. c. 13. upon which two kinds of bailment.

1. Upon the first Accusation, and that doubtless must be done.

• 1. By two Justices of Peace, whereof one of Quorum.
• 2. After Examination taken concerning the Offence.

[...]r. 150.2. After commitment: And though some Opinions be that he may be bailed by one Justice, yet it seems otherwise; for the Stat. of 1 R. 1. 3. that gave power to one, stands repealed by 3 H. 7.

3. After Indictment and Process thereupon issued in case of Trespass or Misdemeanour, or Penal Statute, not prohibiting bail, he may be bailed by two Justices, whereof one of the Quorum; and by some by one Justice, but this holds not in case of Felony.

4. The Sheriffs, Baily, or Offi­cers of Indictment before them.

But these are removed from that power, as it seems by the Stat. 28 E. 3. c. 9. 1 E. 3. c. 3. whereby they [Page 93] are not to make Process, but to re­move them to the Sessions of the Peace.

Having considered the person that may arrest and bail, it makes way to consider the Offences a­gainst such Arrest or Imprison­ment, by breaking such Prison, &c. And herein ensues the second Consideration.

2. What Prison within this Act?

• 1. Stocks.
• 2. Prison of the Lord of Fran­chises.
• 3. The Custody of any that lawfully arrests, or the house of the Constable, or other Prison where detained.
• 4. The Church, where a person abjuring is.
• 5. The Prison of the Ordinary, which is ousted by 23 H. 8. c. 11.

[Page 94]

• If Prison be fired without privity of Prisoner, he may lawfully break it to save himself.
• 2. If Goaler do voluntarily per­mit him to escape, Felony in the Goaler, not in the Prisoner; but if negligent, Felony in the Prisoner, and Misdemeanour in the Goaler.
• 3. If Prisoner under Custody be rescued, or Prison broke by stran­gers without procurement of the Prisoner, no Felony in Prisoner.
• 4. Going out doors open, no Fe­lony; for that requires an actual breaking.

• 1. If A. mortally wound B. and is committed, and he break Prison, and B. then die, no Felony.
• 2. If a Felony made by subse­quent Statutes, and an Offender therefore break Prison, Felony.
• 3. Committed for suspicion of Fe­lony, [Page 95] yet if Felony done, breaking Prison Felony.
• 4. If the Offence for which the party was committed appear not by matter of Record, necessary a Felo­ny be done, else breach of Prison no Felony.
• But if it appears by matter of Record, and the party taken by Ca­pias, if he break Prison, Felony, though no Felony done.
• 5. If Felony was done, yet breach of Prison no Felony, unless commit­ted by lawful Mittimus, de quo su­pra.
• 6. The Indictment for the breach must be Special, that it may appear he was committed for Felony.

• 1. Breach of Prison turns into Fe­lony only, though party committed for Treason.
• If a Prisoner break Prison where­in Traitors are, to let out Traitors, this is Treason.
• [Page 96]2. If a Prisoner break Prison he may be Arreigned of that before he be convict of first Felony.

But a Goaler permitting a volun­tary Escape shall not be Arreigned till Prisoner first attaint; for if Pri­soner acquit, Escape dispunisha­ble.

Nota, If a person escapes before arrest, not punishable in him as Fe­lony, but forfeits Goods when flight proved.

In case a man slain in the day, Offender Escape, Township amer­ced.

Escape in the Officer, or him that makes the Arrest.

This either in case of Arrest,

• 1. By a Stranger.
• 2. By an Officer.

If a stranger arrest a man for Fe­lony, or suspicion thereof, and de­liver him over to four others, they receive him and let him go at large, this an Escape in both; for the first man should have delivered him to [Page 97] the Constable, and the latter should not have let him go at large.

And the same Law seems to be for a stranger that hath a Prisoner in his Custody, as for an Officer in case of Escape voluntary, or negligent.

• 1. Negligent.

  • 1. Bailing a person not bailable, though ignorant, by one that hath power to bail, a negli­gent Escape.

    But it seems if done by a Goal­er a voluntary Escape, be­cause he hath no such power.

  • 2. The ordinary punishment of such negligent Escape.
    • 1. Of the party attaint 100 l.
    • 2. Of the party indict 5 l.
    • 3. Of a party not indicted at discretion.
  • 3. For insufficiency of Goaler, Sheriff must answer for neg­ligent Escapes.
  • 4. A Goaler de facto, though not de jure, must answer for Escapes.
  • [Page 98]5. If after a negligent Escape the Goaler return him upon fresh Suit before he be pu­nished, it excused.

• 2. Voluntary Escape.

  St. 14. E. 3. c. 10Hath the same Crime that the person permitted to Escape stood committed for, viz. Treason or Fe­lony.

  But this is in the immediate per­son that permits it; and therefore though Sheriff must answer for of­fences of Goaler civilly, yet he shall not criminally.

• 3. There must be a Felony real­ly done, and a Commitment by a lawful Warrant.
• Dal. 336. Dy. 99.
  4. If within year Prisoner be acquitted upon Indictment, yet a voluntary Escape is punishable as Fe­lony, because wife to her Appeal.
• 5. The Escape voluntary punish­able ut supra, though Prisoner not indicted.
  • 1. An hindrance of a person to be arrested that has committed Felo­ny is Misdemeanour, but no Felo­ny.
  • [Page 99]

    2. But if party be arrested, and then rescued, if arrest was for Felo­ny, Rescuer Felon; if for Treason, Traitor; because they are all Prin­cipals.

    But he shall not be arreigned until Principal be attainted; and if Prin­cipal die before attainder, Rescuer shall be fined and imprisoned.

  • 3. There must be a Felony really done, and a lawful Commitment.

Felonies by the Statute.

C.P.C. c. 14. 3 H. 7. c. 13.IMagining or conspiring to kill the King, or any of his Council, by any of the Kings Servants, Clergy not taken away.

1 Jac. c. 12. Witchcraft, de quo supra. St. 25 H. 8. c. 6. revived by 5 El. c. 17.

Buggery with man or beast, without benefit of Clergy.

There ought to be Penetratio as well as Emissio in this.

A Rape.

13 E. 1. c. 34.This was Felony at Common Law, then by Stat. Westm. 1. c. 13. made but Misdemeanour; then by this Statute restored to Felony a­gain.

And hence it is that it is not in­quirable in Leet, because though Felony, yet it lost its nature by W. 1. c. 13.

If a woman be under 10 years, [Page 101] then though she consent, yet by St. 18 El. c. 7. it is a Rape; if above 10 years, if she consent not, a Rape, though she consent after.

But in such case of a subsequent consent, the Stat. 6 R. 2. c. 6. gives the Appeal to the Husband, if not to Father, &c.

Clergy taken away by Stat. 18 El. c. 7. upon Conviction by verdict, or Confession, or Outlawed.

Taking a woman against her will and marrying her, Felony.3 H. 7. c. 2.

1. Such Maid, Widow, or Wife must have Lands, Tenements or Goods, or be Heir Apparent.

2. She must be taken against her will.

3. Extends not to taking a Ward or Bond woman.

Nota, The taking away in one County, and marrying in another, Indicted where married; and they must Enquire of forcible taking a­way.

2. Privy to the marriage, but not to the force, not Guilty.

[Page 102]3. Marrying with consent not ex­cusing so long as she is under the force, 13 Car. Fulwood's Case.

All Accessaries before and after made Principals by this Act.

Clergy taken away by Stat. 39 El. c. 9.

5 H. 4. c. 5. Vide 22 & 23 Car. 2. cap. 1. Clergy taken away.Malicious cutting Tongues or putting out Eyes, Felony.

Clergy not taken away.

Extends not to cutting off Ears.

8 H. 6. c. 12.Stealing, carrying away of Re­cords, Felony. And

The Judges of either Bench ena­bled to determine the same.

Accessaries before made Princi­pals.

5 H. 4. c. 4.Multiplication of Gold or Silver, Felony.

1 H. 7. c. 7.Hunting unlawfully in Forests, Chases, or Warrens with painted faces by night, and rescue, viz. by other their party arrested, Felo­ny.

31 El. c. 4.Imbezelling the King's Armour, &c. Felony.

[Page 103]Qualifications.

1. Ought to be impeached within a year.

2. Offender loseth Lands but du­ring life.

3. No Corruption of blood.

4. Wife loseth not Dower.

Subjects passing Sea to serve for­reign Prince,3 Jac. c. 4. not having taken Oath of Allegiance.

No Corruption of blood: Offen­der may have Clergy.

Articuli super Cartas c. 2.

Purveyors Felony in certain cases, they may have Clergy.

Wandring Souldiers Felony in certain cases;39 El. c. 17. excluded of Cler­gy.

Souldiers retained,18 H. 6. c. 19. as is prescrib­ed in the Act, departing from their Captains without license, 2 E. 6. c. 2. idem Clergy excluded.

Marrying a second husband or wife, the former living,1 Jac. 11. except

1. The man under fourteen, or the wife under twelve at time of [Page 104] first marriage, and not agreeing af­ter first Espousals, may marry a se­cond husband or wife.

2. A man or wife absent above seven years second, marriage no Felony: If beyond Sea, then notice of life; if in England, 1 Jac. 11. then without no­tice.

3. After a Divorce, though à mensa & thoro only.

4. After anullity declared of se­cond marriage by Spiritual Court,

Offenders have Clergy.

1 Jac. c. 31. for going with a Plague sore, but this discontinu­ed.

14 E. 3.10.Goaler compelling Prisoner, through Duress, to become Appel­or, Felony, whether Appellant be acquitted or not.

3 H. 5. c. 1. obsolete.Coining, or bringing in and ut­tering Scotch money; and 2 H. 6. c. 9. payment of blanks,

Offender hath Clergy.

17 E. 3. St. 16. incerti tempo­ris.Transportation of Silver, or Im­portation of false money made Fe­lony,

Offender hath Clergy.

[Page 105]Exportation of Wooll or Wool­fells,18 H. 6. c. 15. other than to the Staple at Ca­lais.

Stealing Falcons,37 E. 3.19. or concealing the same after Proclamation, Felo­ny,

Offender hath Clergy.

Congregations of Masons to pre­vent Statutes of Labourers;3 H. 6. c. 1. but this Obsolete because of the Statute 5 El. the Acts to which it relates are repealed.

Receiving, retaining,27 El. c. 2. or main­taining a Jesuit or Popish Priest knowingly,

Clergy excluded.

Egyptians above fourteen years remaining here a moneth,1 & 2 Ph. & M. c. 4. and 5 El. c. 20. takes away Clergy.

Felony refusing to make Abjura­tion,35 El. c. 2. and after Abjuration not to depart, in some case

Clergy excluded.

Dangerous Rogues adjudged to the Gallies,39 El. c. 4. 1 Jac. c. 7. and returning without license, Felony, but Offender hath Clergy: but branded Rogue Felo­ny, and no Clergy.

[Page 106] 5 El. c. 14.Forging a Deed after former Con­viction.

If a man be convict or condem­ned of publishing a forged Deed, and after he forge a Deed, this is Felony.

C.P.C. p. 172.If the offence were after a former, but before conviction thereof, no Felony,

Clergy ousted.

8 El. c. 3.Sending sheep beyond Sea after former conviction,

Clergy allowed.

33 H. 6. c. 1.Servants, after decease of Master, riotously spoiling Goods, &c.

Offender shall have Clergy.

21 H. 8.7. Servants imbezelling Goods of Master, delivered to them, Felony; but the Statute that took away Clergy being Repealed by 1 E. 6. c. 12. they may now have Clergy.

22 H. 8. c. 11.2 & 3 Ph. & Ma. c. 19. 43 El. c. 13.Cutting Powdike, Felony,

Offender hath Clergy.

Detaining persons in Cumberland against their will, and giving or re­ceiving blackmail, &c.

Felony without Clergy.

Misprision of Treason.

NOW we come to Offences Criminal, but not Capital; and those of two kinds:

• 1. Offences by Common Law.
• 2. Offences against Statutes.

Offences against Common Law not Capital, are either greater Of­fences or lesser.

Greater; and those come under name of Misprision; and those a­gain of two sorts:

Negative, in not doing that they ought, or of Omission.

Positive, in doing some great Mis­demeanour they ought not.

The Negative Misprision.

1. Misprision of Treason.

All Treason includes Misprision [Page 108] and Concealing of any Treason, is declared Misprision only by Statute 1 & 2 P. & M. c. 10.

C.P.C. c. 3.But this in case of bare knowledge and assent it is Treason, and though Treason by Statute, yet the con­cealing thereof is Misprision of Trea­son.

Every man therefore that know­eth Treason, must with all speed reveal it to King, his Privy Council, or Magistrate.

He that receives and comforts a Traitor knowingly, be it a counter­feiter of Coin or other, is a Princi­pal Traitor, and not only guilty of Misprision. Abingdon's Case against Opinion in Dyer 296. Conier's Case.

The Judgment in case of Mis­prision of Treason is Imprisonment during life, forfeiture of Goods, for­feiture of profits of Land during life.

[Page 109]2. Misprision of Felony is either by Common Law or by Sta­tute.

By the Common Law a conceal­ment of Felony, or procurement of the concealing thereof.

The Punishment.

1. A common Person Fine and Imprisonment.

2. An Officer, as Sheriff, Coro­ner, Imprisonment for a year, and Ransom at King's pleasure by Stat. W. 1. c. 9.

By the Stat. 3 H. 7. c. 1. 33 H. 8. c. 6. one knowing of an unlawful Assem­bly, and not discovering it within 24 hours.

Concealment of Jurors, v. Stat. 5 Ed. 3. c. 10.

3. Theft-boot, which is more than a bare Misprision of Felo­ny, and is where the Owner doth not only know the Felo­ny, [Page 110] but takes his Goods again, or other Amends, not to Pro­secute.

But taking the Goods barely no-offence, unless he favour the Thief.

The punishment hereof is Ran­som and Imprisonment.

• 1. Discovery by one of the grand Inquest of the person Indicted, or by Evidence against them, Mispri­sion, punishable by Fine and Im­prisonment, but no Felony.
• 2. A person disswading Witnesses from bringing in Evidence against a person is no Accessary, but a great Misprision, punishable by Fine and Imprisonment.
• 3. Rescuing a Prisoner from Barr of B. R. Canc. B. C. or Exchequer, a Misprision for which a party shall lose his Hand, Goods, Profits of Lands, during Life perpetual Im­prisonment.
• [Page 111]4. If a man strike sitting the Courts at Westminster, in presence of Courts, like Judgment.
• 5. If in presence of those Courts, or before Justices of Assize or Oyer & Terminer, a person draws his Sword upon any Judge or Justice, though he strikes not, or strike ano­ther, like Judgment.
• 6. Per Stat. 33 H. 8. c. 12. stri­king in the King's presence, draw­ing blood, loss of hand, perpetual Imprisonment, Fine and Ransom.
• 7. By St. 14 El. c. 3. forging of Money not current Misprision of Treason.
• 8. Stranger uttering false Money made within this Realm, known to be Counterfeit, 3 H. 7.10.
• 9. A Lord of Parliament depart­ing from Parliament, 3 E. 3.

And hither we may refer Mai­hem, which though it be a particu­lar Crime for which Appeal lieth, yet it is not Felony of death.

Cutting off the hand,C.P.C. c. 40. or striking out a tooth, Maihem, but not cutting off the ear.

[Page 112]The Judgment is only Fine, Dam­mages; and therefore if recovery in Trespass, it is a good barr in Ap­peal of Mayhem.

Offences of an Inferiour nature are either such as are committed by an Officers neglect of duty, as Bribery, Extorsion.

Or such as refer to a common person, without relation to Officers, and those reducible to three kinds.

• 1. Breaches of publick Peace, and therein
  • 1. Of Affrays.
  • 2. Of Riots.
  • 3. Of Forcible Entries.
  • 4. Barretries.
  • 5. Riding armed.
• 2. Deceipts and Cozenage.
• 3. Nusances.
  • Decay of Bridges.
  • Decay of High-ways.
  • Inns and Alehouses.

Breach of the Peace.

AFFRAY,

If weapon drawn, or stroke given or offered; but words no Af­fray: menace to kill or beat, no Affrays but yet for safeguard of Peace, Constable may bring them before Justice.

In Affrays considerable,

1. What a private man may do?

Private persons may stay Affray­ers till heat over, and deliver them to Constable.

If a person hurt another danger­ously,Dal. c. 8. private person may arrest the Offender, and bring him to Goal or next Justice.

2. What by a Constable.

1. Affray in presence of a Con­stable, he ought to do his [Page 114] endeavour to suppress it, o­therwise finable.

2. If an Affrayer fly to a house, or if made in a house, Con­stable may break open house to preserve peace, or take the Offender.

3. If in Affray assault be made upon Constable, he may strike again, or imprison Of­fender.

4. Constable may in such cases imprison till he find surety of Peace.

5. It seems if Affray pass, and not in view of Constable, he cannot imprison without warrant of Justice unless Fe­lony done, or like to be done.

3. What by a Justice?

1. In his presence, the same power that a private person or Constable, and may im­prison till surety of Peace found; the like upon Complaint.

[Page 115]2. If dangerous hurt, Justice may imprison till it appear whether the party die or live, or bail the party.

The former the better discreti­on.

Riot.

When above the number of two meet to do some unlawful act, and do act it; but if they meet and act it not, an unlawful Assembly, in power of Justices to suppress them, 13 H. 4. c. 7.

A man for safeguard of his house against Malefactors or Trespassers, may assemble his Friends for his De­fence.

But he cannot assemble to pre­vent a beating threatned in his pre­sence, Riot recorded by one Justice traversable.

[Page 116] Forcible Entry.

Forcible Entry must be either manifest, furnished with unusual weapons, menace of life or limb, breaking open doors; contrary it seems of doors only hatched, Eject­ing forcibly the Possessor.

Cum multitudine gentium, one may commit a Force, three at least a Riot.

Forcible Detainer.

Menacing Possessor to go out up­on pain of loss of life or member.

Unusual Weapons or Company, refusing to admit the Justice to come in to view the Force.

Detainer with Force justifiable where party in possession three years; but though his Possession be lawful, yet within three years actually removed, though restored by Justices, enables not a Detainer with Force.

[Page 117]But if three years Possession hath been by Force, then the last forci­ble Detainer punishable, and hin­ders not Restitution.

If Disseisee within three years make lawful Claim, this an Inter­ruption of his Possession.

Restitution.

1. Justices B. R. may restore up­on Indictment before them.

2. One Justice of Peace cannot restore upon an Indictment before him, nor Sessions of Peace, unless upon an Indictment found at Ses­sions.

3. It seems Justice of Oyer and Terminer, or Goal Delivery, can­not Restore.

2. How?

Upon view.

Upon Indictment must be suffici­ent, adhuc extra tenet.

If Erroneous, may be superse­ed by same Justice before Execu­ted.

[Page 118]After it is Executed, then Resti­tution in B. R. upon Indictment quashed.

Restitution stayed

• By Certiorari.
• By quashing Indictment.
• By pleading thereunto, which is nevertheless In­discretion.

Barretry.

Riding Armed.

Going Armed.

V. St. 2 R. 2. c. 1. 7 R. 2. c. 13. 2 E. 2. c. 3. Stat. Northampton.

Nusances.

BRidges Publick

Are not chargeable upon a particular person, but ratione ten'.

But Common Right repairable by whole Country.

The manner of Repairing direct­ed by Stat. 2 H. 8. c. 3.

Highways.

Highways Provisions.

1. For their enlarging and removing Trees within 200 foot of either side.

• 5 El. c. 13.
• 29 El. c. 5.
• 2 & 3 Ph. & Ma. c. 8.

The charge of repairing Highways lies on common right upon the Pa­rish wherein they are, unless

1. A Special Prescription cast it on another.

2. Unless the Owner of the Land, in which they are, inclose it, then it must be cast upon the Owner.

But they that have Ditches on either side ought to scoure them, 8 H. 7.5.

• Inns,
• Ale-houses,
• Bawdy-houses,
• Gaming-houses,
• Nusances.

Common Inns.

1. ANY person may erect a Common Inn, so it be not ad nocumentum.

• 1. In respect of their multitude, when there are enough an­cient Inns before.
• 2. In respect of the inconveni­ence of the place or situati­on.
• 3. In respect of Disorders there committed.

All which are common Nusances, and may be fined and presented.

2. He that erects a Common Inn and refuses to entertain Guests, may be Indicted for the same.

3. If Common Inns, contrary to Statute, suffer persons to tipple there as Ale-houses, he may be com­pelled [Page 122] to be bound, or may be sup­pressed as Ale-house, or may be In­dicted at Sessions.

See for Ale-houses, the suppres­sing of them, and the punishment for tippling in them, 5 E. 6. c. 25. Jac. c. 9. 4 Jac. c. 5. 7 Jac. c. 10.21 Jac. c. 7. 1 Car. c. 4.

An Ale-house-keeper suppressed for the Offence, 7 Jac. c. 18. 21 Jac. c. 7. for suffering tippling, or 7 Jac. c. 10. for selling less than is there di­rected, or 21 Jac. c. 7. for continuing drinking in another Ale-house, or 21 Jac. for being drunk, cannot be li­censed in three years, and if it be, such License void.

Forgery, Perjury, Cham­perty.

OFfences not Capital more par­ticularly by Statute.

Forgery by Stat. 5 El. c. 14.

Perjury and Subornation, 5 El. c. 9.

Champerty, Embraceries and Maintainance, 32 H. 8. c. 9.

Ingrossing, Forestalling, and Re­grating, 5 E. 6. c. 14.

Salt Victual within Statute.

Apples and Cherries no Victu­al.

Mault seems not Corn and Grain expresly by 5 E. 6.

A Stranger, not Subject, bring­ing Victual into Realm, may sell them in gross, but Vendee cannot; neither may any Merchant buy [Page 124] within the Realm, and sell in gross.

Attempting to inhance the price of Merchandize a kind of forestal­ling.

Selling Corn in the Sheaf unlaw­ful.

Matters of Religion.

1. REviling Sacrament Imprison­ment, Fine, and Ransom. 1 E. 6. c. 1. Rep. 1. Ma. c. 2. revi­ved 1 El. c. 7.

2. Not coming to Church to hear Common Prayer, by 5 E. 6. c. 1. subject to Church Censures.

Nota, 3 E. 6. c. 1. settled a Book of Common Prayer, Enjoyned the use.

Refusing to use, using other, or disproving it, Imprisonment for six months for first, for second a year, life for third.

5 E. 6. c. 1. Alters Prayers, but applies Penalties to new Book.

Nota, Rep. 1 Ma. that Rep. 1 Jac. c. 25.

1 El. c. 1. Enacts the use of the Book of 5 E. 6. with some Altera­tions.

[Page 126]1. Any that refuse it.

2. Use another form.

3. Deprave it, if Spiritual, six months Imprisonment first offence, one years Imprisonment second Of­fence, Deprivation third Offence.

If Lay, first Offence twelve months Imprisonment, second of­fence during life.

Depraving Book of Common-Prayer, first offence 100 Marks, se­cond offence 400 Marks, third of­fence Goods, and Imprisonment du­ring life.

3 El. c. 1. concerning Consecra­ting Bishops.

Concerning rejecting Church.

1 El. 2. Every Sunday and Holi­day super 12 per diem, 23 El. c. 3. 10 l. per mensem for absenting; and if absent 12 months upon Certifi­cate, bound to good behaviour.

29 El. c. 2. Conviction of Recu­sancy.

35 El. c. 1. Penalty of disswading from Church, holding of Conventi­cles.

Convict to Prison without bail until Conformity.

[Page 127]Nonconformity within 3 months after Conviction, shall abjure the Realm.

Not departing or returning, Felo­ny without benefit of Clergy.

Submitting discharged of the Pe­nalty by this Act.

Relapsing loseth benefit of Sub­mission.

Ten pounds per mensem for eve­ry person retaining or relieving Re­cusant after notice.

C. 2. Recusants not to remove, un­less from dwelling.

1 Jac. c. 4. the heir of a Recusant conformable, discharged third part forfeiture.

Penalty of sending Children into Seminaries.

3 Jac. c. 4 & 5. Penalty for refu­sing Oath of Supremacy.

1 El. c. 1.

5 El. c. 1.

Of Obedience, 3 Jac. 14.

7 Jac. c. 6.

Kings Bench.

Third Part.NOW we come to consider of the proceeding against a par­ty for Felony, and therein

1. Concerning the Jurisdiction of Court wherein Proceedings are to be had in Capital Causes, and those are principally,

• 1. Kings Bench.
• 2. Justices of Goal Delivery.
• 3. Justices of Oyer and Ter­miner and Assizes.
• 4. Sheriffs and Coroners.
• 5. Lord Steward of the Hous­hold.

The Kings Bench the Supream Court of Criminal Jurisdiction. It is a Court of Oyer and Terminer, Goal Delivery, and Eyre, in that County where it sits.

[Page 129]By the coming of the Kings Bench into any County,9 R. Sanchars. during the sitting thereof in that County, all power and proceedings of Oyer and Terminer is suspended.

But a Special Commission of Oy­er and Terminer may be granted,C.P.C. p. 27. bearing Test in the Term, and Kings Bench may adjourn, and then they may sit.

Where the Kings Bench pro­ceeds upon an Offence committed in the same County, there need not fifteen days between Teste and Re­turn of Venire facias; but if they proceed upon a Cause removed by Certiorari, they must have fifteen days.

Goal Delivery.

9 R. Sanchars.1. JUstices of Peace ought to deli­ver the Indictments not de­termined unto those Justices, and they may Arreign any person in Pri­son upon them.

2. They may take Indictments against any person in Prison, and so may Justices of Oyer and Terminer, and herein they have a concurrent Justice.

3. They may take a Pannel re­turned by Sheriff without Precept.

4. They may deliver by Procla­mation persons suspected, when there is no Evidence to Indict them.

5. May award Execution of per­sons in Prison Outlawed before Ju­stices of Peace.

6. May assign Coroner to Appeal and make Process against Appel­lors [Page 131] in Foreign County.

7. May punish those that unduly bail Prisoners, 1 & 2 Ph. & Ma. c. 13.

8. May deliver the Goal of per­sons committed for High Trea­son.

9. May Receive Appeals by Bill against persons in Prison.

10. By Stat. 10 E. 3. must deliver their Records into Treasury at Mi­chaelmas.

11. Others may be added to the former Commission by Commission of Association, or their power com­mitted to fewer by Si non Omnes.

12. By St. 2 & 3 Ph. & Ma. c. 18. a General Commission of Goal De­livery through the County not be a Supersedeas to a Special Commission granted in a Corporation, parcel thereof.

13. By St. 1 E. 6. c. 7. subsequent Commissioners of Goal Delivery, power to give Judgment upon such as were Repreived by former Com­missioners of Peace, Goal Delivery, Oyer and Terminer, and others not [Page 132] continued by granting new Com­missions.

If a Prisoner be bailed, he is yet in Prison to be Arreigned before those Justices, for he is a Prisoner; contrary in case of Mainprize. 21 H. 7.33. 9 E. 4.2. 39 H. 6.27.

4. Ins. 206.Although their Commission de­termine with their Session after they are gone, they may command a Re­prieve or Execution. Dyer 205.

Licet soit ad Gaolum deliberan­dum hac vice uncore poit adjourner lour Commission. Bro. Jur. 226.

Commission d'Oyer & Terminer, & Goal Deliberand, poit Estoyer en­semble. Ibid. Bro. Commission 24.

Justices d'Oyer & Terminer, & Goal Delivery, poit enquirer per ambideux powers, and make up their Records accordingly. 9 H. 7.9. Bro. Jud. 226.

Oyer and Terminer.

1. JUstices Authority must be by Commission, not by Writ, o­therwise their Proceeding void.

2. They cannot proceed but by Indictment taken before them­selves.

3. Nota, By good Opinion they may proceed the same day or Session against a party Indicted. Nota le contrar' ad estre adjudge.

4. Where Offences are limited to be heard and determined in any Court of Record, generally it may be heard or determined before them. Quaere for Gregory's Case contra Dy. 236.

5. Others may be added, or their power contracted by Association, or Si non omnes.

6. One sitting without Adjourn­ment [Page 134] determines the Commissi­on.

7. Justices of Oyer and Terminer, or of Peace, cannot assign a Coro­ner as Justices of Goal Delivery may.

8. By St. 9 E. 3. they are also to send their Records determined into the Exchequer.

9. A Supersedeas suspends their power, a Procedendo revives it; the like of Commission of Nisi prius, &c.

12 Ass. 21.But it determines not without notice.

1. By shewing the new Commis­sion.

2. Proclaiming it in the Coun­ty.

3. Or Sessions held by new Com­mission.

10. An Award on the Roll not sufficient to return a Jury, but a Precept under Seal of Commission­ers.

C.P.C. p. 27.11. And Nota, That a Special Commission of Oyer and Terminer may be granted to sit in one County [Page 135] to hear and determine Treason, &c. in another, but then the Indictment must be found in proper County, and the Tryal by Jurors of proper County.

By Stat. 27 E. 1. de finibus Ju­stices of Assise have power to de­liver Goals of Felons and Mur­derers.

And in case of Counterfeiting Coin, &c. upon Stat. 3 H. 7. St. 2. c. 7. they may have a Special Com­mission.