What is Robbery.

RObbery is the felonious ta­king of any thing from the person of another against his will, whereby the person is put in fear; though the thing taken be but to the value of a peny, for which the Offender shall be hanged.

Yet in some cases it is not neces­sary that the thing whereof the par­ty is robbed be actually taken from his person, for if the Robbers ob­tain it by force and menaces, though the owner himself delivers it to [Page 2]them, yet this tantamounts to a ta­king from the person; for the Law respects the original cause (viz.) the threats and menaces which ne­cessitated the Propriator to quit his goods for the preservation of his life and person; As if one com­mand another presently to deliver him his purse, or otherwise he will kill him, which he does according­ly, this is Robbery, for the danger he confessed himself to be in by rea­son of those threatnings was the cause and motive of that delivery; So if two or more take a man and by force compell him to take an Oath to bring them such a sum of money, and if he does not they threaten to kill him; Though he brings it in pursuance of his Oath, and delivers it to them and they take it, yet this is Robbery, not­withstanding that by this inforced Oath he was not bound in consci­ence to bring them the money; for he took it for fear of death, and so not voluntarily; If Felons come in the night to rob me in my house, and I, fearing lest they should enter [Page 3]the house and rob me, and, to pre­vent their entry, I throw money or plate, &c. out at the window to them,44 Ed. 3.14. which they take and de­part, this is Robbery; for, in con­struction of Law, it is the same as if they had taken it from my per­son.

If Felons take goods openly in a place where the Owner is present, and thereby put him in fear, or take his horse or drive his cattel out of his pasture or fold, he stan­ding by and looking on them,22 Ass p. 39. Fit. Car. 115. so that he be terrified by their vio­lent carriage, menaces, assaults or otherwise, this is Robbery in the takers, and the Law supposes it to be done with such violence that he is not able nor dare not to resist them, & in privata causa nemo tene­tur exponere se periculis.

The putting the party in fear is an especial part of a Robbery, with­out which, in estimation of Law, no Robbery can be committed;5 Eliz. Dier 224. for if I be travelling upon the road, and one comes by and takes my money from my pocket, or my sword from [Page 4]my side unknown to me, this is Felo­ny but no Robbery.

The taking away of something from the person, either in Fact or Law, is as necessary an ingredient to make a Robbery as the Putting of the party in fear; As if one lies in wait in the high-way to rob pas­sengers, and he bids a Traveller which comes along to stand and yield him his purse,9 Ed. 4.26. if the Travel­ler upon resistance overcome him, and either apprehends him or puts him to flight, though there was a design and an attempt to commit a Robbery, yet, volunt as non reputa­bitur pro facto, and though the Law adjudges this intent to be no Rob­bery, yet it ranks it, and that not undeserved, amongst the highest of misdemeanours.

So that the difference betwixt Robbery and a Theft is that, That one is done openly and with force, the other secretly and surreptitious­ly; And if any thing be taken from a man openly and in his presence, and his person is not thereby put in fear, this amounts onely to a trespass.

A Traveller may justifie the kil­ling of any person who shall at­tempt to rob or murther him upon the way, and that without the for­feiture of either lands, goods or chattels;22 Ass. 55.26 Ass. p. 23. & 32. Co. li. 5.91. Fit. Coron. 30. & 305. This point of the forfei­ture was somewhat disputable at the Common Law; Some would have it to be the same with killing of a man by chance-medly, or se defen­dendo; but this point hath been cleared by an explanatory Act made in the 24 H. 8. cap. 5. where it is declared, That if any person or per­sons do attempt feloniously to rob or murther any person or persons in or nigh any common high-way, cart-way, horse-way or foot-way, and if any such evil disposed person happen to be kil­led or slain in such attempt, and he that so killed him be thereof indicted or appealed, That the person or per­sons so indicted or appealed, and of the same by verdict so found and tri­ed, shall not forfeit or lose any lands, tenements, goods or chattels, for the death of any such evil dispo­sed person in such manner slain, but shall be thereof and for the same fully [Page 6]acquitted and discharged, in like man­ner as the same person or persons should be, if he or they were lawfully acquitted of the death of such evil disposed person or persons.

Where and how the party is to have restitution of the goods whereof he was robbed, upon an Appeal or Indictment.

AT the Common Law, before the Statute of Westminster, the person robbed had no other satis­faction but onely restitution of his goods, in case he made fresh pur­suit after the Robber, and convic­ted him at his own Suit (viz.) by an Appeal of Robbery. The Law is so eager to have Felons apprehen­ded, that if the party does not use his utmost endeavours to get the Offender taken, it punisheth him with the loss and forfeiture of the goods stolen; So that if the Male­factor be convicted at the Suit of the party, yet if the Jury does not [Page 7]find that he had made fresh suit af­ter the Felon, the goods stoln are forfeited to the King, and no resti­tution can be made of them.

As the Law condemns the not pursuing or in slack and faint pur­suit of Robbers; so it rewardeth diligent endeavours though they meet with no success: for if a Fe­lon which committed a Robbery be not taken by the space of a year after the Felony committed, yet if the party that was robbed doe his endeavour to apprehend the Felon, and make diligent and special en­quiry for him, and after he be ta­ken, though not at the suit of the party robbed, yet that shall be ad­judged a sufficient fresh suit, and upon his appeal brought, and the Offender convicted, he shall have restitution of his goods robbed; and if this fresh suit was made by a Servant, and not by the party rob­bed himself, it is sufficient to pro­cure him restitution.

Conviction without Attainder is sufficient to entitle the Appealant to a restitution, though in ancient [Page 8]times some opinions have been to the contrary, and that no restitu­tion could be made untill after at­tainder, and in some cases where no attainder could be (as where the Felon died in prison before the Owner had commenced his appeal) though the suit was never so fresh, Fit. Coron. 319.8 E. 3.10. But now it is agreed that if after the appeal commenced the Felon die in prison or break the prison, the fresh suit shall be enquired, and if found, the party robbed shall be restored to his goods, Fit. Coron. 379. 26 Ass. p. 32. So if the Male­factor stand mute or challenge per­emptorily above the number which the Law does allow, or demand his Clergy, in every of these cases the fresh suit being found by inquest, the Appealant shall have restitution of his goods, for he had done all that he could in order to an attainder.

If an appeal of Robbery be sued against the Principal and Accessory, and the Principal be attainted and the fresh suit is sound, restitution shall be made of the stoln goods [Page 9]without prosecuting the suit against the Accessory, and yet his continu­ance of the suit against the Accesso­ry shall not hinder his restitution, for that the principal Felon is at­tainted by his procurement; and the Appealant shall have restitution whether the Accessory be attainted or acquitted; In the same manner the Appealant shall have restitution where he sues an appeal against two as Principals and one of them is ac­quitted, 21. Ed. 4.16. 10 H. 4.5. If one man rob divers men, for which they bring their several ap­peals, and the Felon is attainted at the suit of one of them, and the fresh suit is found, in this case the rest shall not have restitution untill the Offender be convicted at their several suits, and likewise the fresh suit severally found.

There are some opinions which hold that if the Appealant sue the Robber to the outlawry that he shall have restitution of his goods without enquiring of the fresh suit, for that he had prosecuted against the Appealee as far as the Law gave him way.

An enquiry must be made of the fresh suit before any restitution can be awarded; and that too before the Justices and not the Sheriff, and by the Jury that convicted the De­fendant of the Robbery: But in case the Defendant doth confess the appeal, then it must be enquired of by a Visne from that County where the Robbery was committed, and where the appeal is brought, ex­cept it be brought in London; for that the City hath a privilege not to be forced to appear upon Juries out of the City; And it cannot be taken there by Nisi Prius, because it is but an inquest of Office; Therefore in this case the Visne shall come from that County where the Robber was taken, and so it shall be enquired by the people of that County.

In the first place the Court is to ask the Defendant in the appeal if he claims any property in the goods; which if he says he does not, then it must be enquired if the goods were the Plaintiff's at the time of the Robbery committed, [Page 11]and also enquire of the fresh suit.

If the Manner (viz. the stoln goods) wherewith the Felon is ta­ken be portable, or that it can be otherwise done with conveniency, it ought to be brought into the Court before the Justices, and if it be in a trunk, box, chest or cloak-bag, &c. the Appealant must tell particularly what goods there are in it before it be opened, or that he can have restitution.

The Appealant's fresh suit being found by the Inquest, the Court ought to award him restitution of all the goods contained in his ap­peal, which the King's Officers or any other had seised to the King's use.

Having shewed how the party robbed might obtain restitution of his goods by Appeal, in the next place falls under consideration the case of an Indictment: At Com­mon Law, if the person robbed had steered his course this way he had certainly split himself upon the rocks; for restitution could in no [Page 12]case be awarded upon an Indictment, though the Jury that found the Of­fender guilty of the Robbery had likewise found the fresh Suit. To remedy this inconveniency an Act was made 21 H. 8. cap. 18. whereby it was enacted, That if any Felon or Felons do rob or take away money, goods or chattels from any of the King's Sub­jects, from their person or otherwise within this Realm, and thereof the said Felon or Felons be indicted, and after arraigned of the same Felony and found guilty thereof, or otherwise attainted by reason of evidence given by the party robbedd or owner of the said money, goods and chattels, that as well Justices of Goal delivery, as other Justices before whom any such Felon or Felons shall be found guilty or other­wise attainted by reason of evidence given by the party so robbed or owner, or by any other by their procurement, have power by this Act to award from time to time Writs of restitution for the said money, goods or chattels in like manner as though any such Felon or Felons were attainted at the Suit of the party in appeal: So that by [Page 13]virtue of this Act the party robbed may have restitution upon evidence given by himself or by any other by his procurement notwithstan­ding that he made not any fresh Suit.

If the Servant be robbed of his Master's goods, the Master may give evidence against the Felon by virtue of these words (the party so robbed or owner) And if the party robbed does not give evidence him­self but procure another to doe it, this is sufficient within the words of the Statute to enable him to obtain restitution.

If one man do rob goods from three men severally, and he is in­dicted for the robbing of one of them, and thereupon arraigned; though the other two would give evidence against the Malefactor, yet they shall not have restitution of their goods within the intent and meaning of this Act, for the Felon is not attainted of any other Robbery but that whereof he is in­dicted: But if he be indicted of all the three several Robberies seve­rally, [Page 14]and arraigned upon one of them, and convicted upon the evi­dence given by one of the parties robbed, yet he shall be after ar­raigned upon the other two Indict­ments that he may be also found guilty by the evidence of the other two persons robbed; to the end they may have restitution of their goods.

Though this Statute speak onely of the party robbed, yet his Exe­cutors and Administrators are with­in the meaning of it: for it is a be­neficial Law, and gives a more spee­dy remedy to the party robbed than the Common Law gave by way of Indictment, and therefore ought to be construed beneficially.

Of the Action upon the Statute of Winchester against the Hun­dred.

HAving shewed how and in what cases the party robbed may have restitution of the stoln goods, [Page 15]both upon an Appeal and an Indict­ment, now I shall proceed to shew what further remedy the Law gives him for his indempnity. At Com­mon Law, if a man was robbed, he was presently to use his utmost en­deavour to apprehend the Felon, and if he was found defective or negligent in this particular, the Law would give him no relief; and though there was no neglect in him, yet for want of the due and speedy assistance of others, which were o­bliged to joyn with him in the pur­suit, perhaps the Robber was not taken untill such time as he had op­portunity to make away and im­bezle the goods; So that if it chan­ced that he was taken afterwards, the party was destitute of any sort of recompence, whereas if the Fe­lon had been freshly and vigorously pursued from Town to Town, &c. as the Law does direct and require, he might have been taken with the Manner, and upon an Appeal brought and a conviction there­upon, the Owner was to have re­stitution of the goods which were [Page 16]stoln from him. It is true the Law did punish the Inhabitants of the place where the Robbery was com­mitted, if, upon notice given to the Constable of the Town, the Huy and Cry was not raised, and all persons within the Town were bound to follow the pursuit, which if they did not they were punish­able by Fine and Imprisonment, this Cry was to be carried from Con­stable to Constable; and if any Town was indicted for the escape of the Felon, the pursuit with Huy and Cry to the next Constable was a good excuse, a total neglect or at least the faint and weak perfor­mance of these fresh suits being not duly punished, Robbers did escape unpunished, and that impunity was an encouragement to others to commit the like enormities, to the great and manifest danger of the King's Subjects travelling upon their lawfull occasions. For the indemp­nity of persons who should sustain any loss by Robberies, and for the more effectual obliging of Cities, Towns and Villages, and to discharge [Page 17]their duty with great care and di­ligence in the pursuing and appre­hending of Felons, it was thought fit a Law should be made, that if the Felons were not taken within such a time, the Hundred where the Robbery was committed should sa­tisfie the party whatever he was damnified thereby; to that end there was a Statute made at Win­chester, in the 13 E. 1. whereby, in the preamble thereof, is set forth the principal cause of the frequent escapes of Felons without being ap­prehended, and why the Laws which were then extant proved ineffectu­al to suppress and extinguish both Felons and Felonies, and whence the growth of them proceeded, for that Felons could not be attainted by the Oaths of Jurors, who had rather strangers should be robbed and the Robbers escape punishment than indict the Offenders, of whom great part were of the same Coun­try, or at least, if the Offenders were of another Country, the Re­farvors might be of places near; and they did this, because no Oath [Page 18]was given to the Jurors of the same Country where the Felonies were committed, and no Law obliged them to restitution of damages, nor any penalty limited for their concealment and Latches. And for that the fear of a penalty more than that of an Oath might be a grea­ter engagement upon them not to spare or conceal Felonies, therefore it was enacted, ‘That if any Robbe­ry, &c. be committed (if need re­quires) Inquest shall be made in Towns by him that is Lord of the Town, and after in the Hundred, and in the Franches and in the County, and some­times in two, three or four Counties, in case where Felonies shall be commit­ted in the Marches of Shires.’ And it was further enacted, ‘That if the Country will not answer for the Bodies of such Offenders, the people of every such Country shall be answerable for the Robberies and also the damages, so that the whole Hundred, with the Franchises being within the precincts of the same Hundred, shall be answe­rable for the Robberies done. And if the Robbery be done in the divisions [Page 19]of two Hundreds, both the Hundreds and the Franchises within the same shall be answerable; And after the Robbery be done, the Country shall have no longer space than half a year, with­in which time it shall behoove them to agree for the Robbery or Offence, or else that they shall answer for the Bo­dies of the Offenders.’

But afterwards by another Sta­tute made An. 28 E. 3. cap. 11. it is ordained ‘That the Country shall have no longer term after the Robbe­ry committed than forty days, with­in which time they must make satis­faction for the Robbery or answer the Bodies of the Felons.’

The person robbed shall have an Action upon the Statute of Winche­ster against the Hundred, notwith­standing that the Statute does not expresly mention any Action; for when it says the Hundred shall an­swer for the Robbery and the da­mages; the Hundred within the meaning of the Statute is to be an­swerable to the party robbed; for he is the person damnified and in­tended to be relieved within this [Page 20]Act; and when the Statute gives him recompence or satisfaction for the loss he had sustained by the Robbery, the Law by implication gives him the necessary means whereby he is to attain to it, and that is an Action to be grounded upon this Statute. Process and Ex­ecution against the Hundred, I shall speak of at large in another place.

By the two aforesaid Statutes of the 13 E. 1. made at Winchester, Co. li. 7. so. 7. and the 28 E. 3. the Country, if it did not answer for the Bodies of all the Offenders, must of necessity have made satisfaction for the Robbery, though (in case it was done by ma­ny) some of the Felons upon pur­suit had been taken; but this is moderated by a Clause in the 27 El. cap. 13. whereby it is enacted, ‘If any Robbery be committed by two or more, and any one of them be appre­hended upon such pursuit as the Law does require, that no Hundred or Franches shall incurr the penalty or loss or forfeiture mentioned in this Statute of the 27 El. or any of the two [Page 21]former Statutes, though the rest of the Felons make their escape.’

The party robbed was not limit­ted to any time within which he should bring his Action before the 27 El. which Act does provide, ‘That no person or persons robbed shall take advantage by virtue of any fer­mer Act, to charge any Hundred where any robbery shall be committed, unless he or they so robbed shall com­mence his or their Suit or Action with­in one year next after such Robbery so committed;’ for if the Robbery be committed upon the first of May, and the original bear test the first of May following the Action does not lie, for it must of necessity be commenced within the year.

This Statute of the 27 El. doth likewise bind the person robbed to the performance of some conditi­ons before he can be enabled to bring his Action, for the Act says, ‘That no person or persons robbed, shall maintain any action of the two fore­mentioned Statutes, except the said person or persons so robbed, shall, with as much convenient speed as may be, [Page 22]give notice of the same Robbery so committed unto some of the Inhabi­tants of some Town, Village or Ham­let near unto the place where such Rob­bery was committed; Nor shall by virtue of the Statutes aforesaid bring any Action unless he or they shall with­in twenty days next before such Action to be brought, be examined upon his or their corporal Oaths to be taken be­fore some one Justice of the Peace of the County where the Robbery was committed, inhabiting within the Hun­dred where the said Robbery was done or near unto the same, whether he or they know the parties that committed the Robbery or any of them. And if upon examination it be confessed that he or they do know the parties that did the Robbery, or any of them, then he or they so confessing, shall, before the said Action be commenced enter into a Recognizance before the said Justice to prosecute the said person or persons so known to have committed the Rob­bery by Indictment or otherwise, ac­cording to the due course of the Laws of this Realm.’

So that these four things are ab­solutely necessary;

• 1. That notice with all convenient speed be given to the Inhabitants of the place near where the Robbery was done.
• 2. That the said Oath be taken be­fore the Justice of the Peace within twenty days next before the Action commenced.
• 3. That he enter in­to a Recognizance to prosecute the Felons in case he knows any of them.
• 4. That the Action it self be brought within a year after the Robbery committed.

If the Servant be robbed of his Master's goods, the Servant is to give the notice to the Inhabitants, for he is best able to describe the Felons, and give information which way they are gone; so that the Coun­try by his directions may the bet­ter pursue and descry the Malefac­tors, and the Oath required by the Statute, made by him is sufficient, because the contents of the Oath is, Whether the party robbed knew any of the Offenders? and a knowledge of the Robbers (within the mea­ning of this Act) is expected from [Page 24]none but the person that was rob­bed.

The Servant is likewise the per­son to be bound in the Recogni­zance, the Statute requires that, be­cause no person is supposed fitter to give evidence against the Offen­ders than he that was robbed by them. But the Action against the Hundred must be brought by the Master, for he is the Propriator: but if the Servant refuses to make the Oath, or enter into the Recog­nizance before the Justice, Quaere, What remedy the Master hath a­gainst him?

If a man be robbed in the Hun­dred of A. in the County of B. and he that was robbed takes the Oath injoyned by this Act before a Ju­stice of the Peace inhabiting in or near the Hundred of A. at any place out of the County of B. the Oath so taken hath been adjudged suffici­ent to entitle him to his Action, for by virtue of this Act he h [...]th a special power (which is not con­fined to any place) to administer this Oath whereever he be, and it [Page 25]is not like that authority which he derives from his Commission, which is local, and can be exercised no where else besides in the County where he is constituted Justice of the Peace.

If several men be robbed at one time and place, the number of their Actions to be brought against the Hundred depends upon the quality of the property they had in the goods whereof they were robbed; for if they had several properties they must bring several Actions,Dier 370. pl. 59. but if they be joint Owners or Pro­prietors then they must all join in one Action, or so many of them as are so jointly possessed.

Where and how notice is to be given of the Robbery.

IT appears by the Statute of West­minster the 1st, made in the third year of Edward the First, That at [Page 26]Common Law 'twas the duty of the Inhabitants to keep and guard the Country from Thefts and Robbe­ries, &c. and in case any Felony was committed they were to pursue and apprehend the Felons, otherwise they were punishable for the escape of such Offenders: every Town was obliged at its peril to take notice of any Robbery committed within its precincts, though done (if in the day time) in a place never so secret;Dier 210. pl. 25. as if a man be slain in the Fields or Lane or any other private place belonging to the Town, if the Murtherer escape untaken, the Town was amerceable, though the Inhabitants thereof had not the least knowledge of it, for in many cases the Law doth presume a know­ledge, as the Jury that is to try an Issue is supposed to have recogni­zance of the matter of fact in Issue between the parties; So if one be outlawed of Felony in the County-Court, and afterwards is received by any person of the same County, that receipt makes him accessary to the Felony, for the Law believes [Page 27]no man, residing in the same Coun­ty, to be ignorant of what is trans­acted in that Court; to which ge­nerally every one owes suit and at­tendance. Likewise if one retain my Servant in the same County where I live, if I bring an Action against him for so doing, his igno­rance of the fact in this case does not excuse him, for he is bound to take notice of the first retainder, but if he retains my Servant in a­nother County, then the Law is otherwise; So also a man is bound to take notice of all Acts done up­on his own freehold. The Statute of Winchester, which give the Acti­on against the Hundred, is general, and does not specifie any time or place when or where the Robbery is to be done, which makes the Hundred liable, yet the Sages of the Law have put such a construc­tion upon the general words of that Statute, that the Robbery, which binds the Country to render satis­faction to the party robbed, must be committed in the day-time, and not in the night, and not in a pri­vate [Page 28]place as a House, but openly, so that the Country may take no­tice of it themselves,Co. li. 7. so. 7. for it was not necessary for him that was robbed to levy any Huy and Cry, or give any notice of the Robbery to the Inhabitants of the Country, nei­ther by the letter of the foresaid Statute of Winchester, or by the meaning of it; for it may be that the person robbed was bound or maimed, &c. so that he could not raise any Huy and Cry or give any notice to the Country, and it is a general Rule in Law, that where the Law appoints no person to give notice, the party concerned himself is bound to take notice at his peril; as if a Church becomes void, by vir­tue of the Statute of the 21st. of Hen. 8. the Patron is bound to pre­sent at his peril within, six months after the institution and induction into the second Benefice,Cro. par. 1.258. though all this be done without his having the least knowledge of it.Dier 292. But if a Church becomes void by sentence of deprivation in the Ecclesiastical Court, and the six months after [Page 29]which the elapse is to incurr, is to commence but from the time of such notice given, and the reason of the first case is the Church being ipso facto void, there being no per­son whom the Law requires to give the Patron notice of such avoidance, he is obliged to take notice of it himself. If a Tenant in Fee-simple convey the Estate to the use of him­self for life, the remainder to his Wife for life, the remainder to his eldest Son in Fee, and afterwards enfeoffs A. with Warranty, and dies, the Wife and the Son enter upon A. and joyn in a Feoffment to B. the Heir being barred by the Warranty,Cro. Car. 393. this Feoffment is a for­feiture of the Wife's Estate for life; for she was to take cognizance of the said Feoffment made by her Husband, because the Livery is a publick and notorious Act, and she ought at her peril to take notice of this Act done upon the Land, none being bound to give her notice of it.

That this matter of the notice is now altered by the Statute of 27 El. whereby it is provided, ‘That no [Page 30]person shall maintain any Action upon the Statute of Winchester or any o­ther Statute, except the person robbed, with as much convenient speed as may be, give notice of the Robbery to some of the Inhabitants of some Town, Vil­lage or Hamlet near the place where such Robbery shall be committed:’ yet it is not necessary that notice be gi­ven to those of the Hundred where the Robbery was done, but to the Inhabitants of any Village near ad­joyning to the place where the per­son was robbed,Cro Car. 379. though in another Hundred, for the Statute does not mention that notice be given to the Inhabitants of that Hundred where the Robbery was committed, and also by intendment the person rob­bed cannot know the divisions of the Hundred; And though notice be given out of the County, yet it is well enough, provided he makes it in a Village near adjoyning to the place where he was robbed;Cro. Car. 41. As in an Action brought against the Hun­dreds of Dackorum and Cashoe, the Plaintiff alledged the Robbery to be committed at Shealey and Ridge in [Page 31]divisis Hundredorum de Dackorum & Cashoe in Com. Hertford, and that he gave notice of the Robbery at South Mims, in the County of Mid­dlesex, near the Hundreds aforesaid, in this case the whole Court adjud­ged the notice given in Middlesex to be sufficient, and that the party robbed is no more bound to know the divisions of Counties than he is of Hundreds. And likewise not­withstanding that the words of the Statute are, that notice be given near the place where the Robbery was, yet the Court held that this allegation of the notice given at South Mims, near the Hundreds aforesaid, was well enough, and shall be intended in the division where the Robbery was done; So if a Robbery be alledged to be committed in divisis Hundre­dorum, &c. and notice given at such a place,New Book of Ent. so 348. &c. prope divisis Hundredo­rum praedict. &c. it shall be inten­ded to be given in the division of the Hundreds where the Robbery was done, and not in the most re­mote place thereof, for that should be a forein intendment, though it be [Page 32]good either way, yet it is best to alledge the notice to have been gi­ven at the place where the Robbe­ry was committed, or at a Village near unto adjoyning.

At what time the Robbery must be committed, to charge the Hundred by an Action upon the Statute of Winchester.

THough the Statute of Winche­ster, as I have shewed you in the foregoing Chapter, is general, both as to time and place, and that it hath been expounded not to ex­tend to any Robbery, unless the same be committed in the day-time,Co. li. 7. fo. 7. for of Felonies done in the night the Country of it self is not bound to take notice, for they can­not conveniently pursue or make enquiry after the Offenders in the night-time; And since the Statute makes the Country answerable for [Page 33]the Robbery, it were too hard to require from them a performance of that which they are deprived of the ordinary and convenient means to effect. This Statute was expoun­ded according to the rule and rea­son of the Common Law (as it may appear by the case of the 3d. of Ed. 3d. Tit. Coron. 293.) ‘That if a Murther or any other Felony be done in the night and the Malefactor esca­ped, the Town was not to be amerced for it.’

In this point of the time there is a difference between a pursuit for the King and for the party, upon the Statute, as shall be further de­monstrated hereafter, when I come to treat of Huy and Cry; though in neither case the Law does con­strain the Country to take cogni­zance at their peril of any Felony acted in the night:2 Ed. 4.8. B. 9. A yet in case of a pursuit for the King, upon actual notice given of the Felony, the Law, upon Huy and Cry levied, ex­pects the readiness and uttermost diligence of the Inhabitants to fol­low the Malefactors. As if a man [Page 34]be robbed or assaulted and offered to be robbed, either in the day or night, if the person himself or any other resort to the Constable of the Town, and acquaint him with the cases, describing the person, and giving information which way the Offender is gone, and require him to raise the Huy and Cry, it is the duty of the Constable to raise the power of the Town, as well in the night as in the day, for the prosecu­tion of the Offender, and if he be not found, there to give warning to the next Constable, and he to the next, untill the Offender be taken.

If a Traveller be robbed in the night, and gives notice to the Con­stable of the Village as aforesaid, though the Constable is obliged (as I have said already) to raise the Huy and Cry, yet this at the most is but a pursuit for the King, and the Traveller shall take no advan­tage of the negligence thereof, in case the Felons make their escape, for God hath ordained the day for man to labour and travel,Co. ubi su­pra. as a fit [Page 35]time for him to exercise his indu­stry, and the night for his repose and quietness, being tired and wea­ried with his daily operation; and accordingly the Law supposes eve­ry person in the night to have re­tired himself from his labour to take his natural rest, neither does the Law require his presence or at­tendance upon his own private af­fairs,12 Ed. 3. tit. Di­stress 17.11 H. 7. fo. 5. Acc̄. nor allow an occasion to in­terrupt or disturb him in his sleep. Therefore it hath been adjudged that a man cannot distrain in the night for a rent Service (because the distress being in it self a demand of the rent, which the Tenant ought to pay, whensoever it is de­manded, upon the Land out of which it issues) for that the Law does not require his being upon the ground, nor his readiness to tender his rent in the night as it does in the day-time. It is true,10 Ed. 3. fo. 21. a man may distrain for damage Feasant in the night, and the Law does allow it onely for the necessity of the case, for if the Owner of the Land should permit the Cattel to continue there [Page 36]till morning, perhaps by that time they may estray out of the ground, and so they cannot be distrained at all, for they must be taken damage feasant (viz.) doing of the trespass upon the ground. Therefore since none are bound to have an eye in the night upon Thieves and Rob­bers in the Country, it is both the interest and safety of our Travel­ler, that he take care not to be a­broad at unseasonable hours, for then in some respect he is out of the protection of the Law, which makes no provision for his indemp­nity in case he be robbed, and the Poet further warns him of his dan­ger:

And whereas it is further provi­ded by the Statute of Winchester, cap. 4. That in all Cities and great Towns which are walled the Gates be kept shut from Sun-setting to Sun-ri­sing, I conceive that if a man be robbed in such a City or Town, [Page 37]though it be done in the night, yet the Inhabitants shall answer for the Robbery, and notwithstanding that at the Common Law no place was punishable for the escape of any Fe­lon in the night, yet this Statute hath changed the reason and ground of that Law, and ratio Legis est ani­ma Legis & mutata Legis ratione mutatur & Lex, for if they do not keep their Gates shut according to the Statute whereby the Felon e­scapes, there is a default and ne­gligence in them, which renders them liable to punishment if the Felon be not apprehended by them, and it was adjudged in the 3d. of Ed. 3d. That where a man being slain within a wall'd Town in the night, 3 Ed. 3. tit. Coron. 299. and the Murtherer escaped, that the whole Town should be amerced, Quaere, Whether the case of the Robbery may not be within the same rea­son?

It is necessary that the Robbery, for which the County is to answer, be done in the day-time and out of the night, and if a man be robbed after Sun-set and before it be dark, [Page 38]yet the Hundred is chargeable, as it was resolved in an Action brought against the Inhabitants of Eveinger, by one Ashpoole, who was robbed in January after Sun-set while it was day-light, and the Court gave Judg­ment for the Plaintiff,Co li. 7. fo. 6. for that it was a time convenient for men to travel and be about their busi­ness.

And in another Action commen­ced against the Hundred of Dun­more in Essex, it was resolved that for a Robbery done in the morning ante lucem (viz. before it is light) the Hundred is not chargeable,Co. ub. su­pra. for that the Robbery is done in the night.

In an Action upon the Statute of Winchester, brought against the Hundred of Morely, the Jury found that the Robbery was done post lu­cem ejusdem diei & ante ortum Solis, that is, after day-break and before Sun-rising, and it was adjudged the Plaintiff should recover against the Hundred. So also a Robbery com­mitted post occasum Solis & per diur­nam lucem, Cro. Jac. 106. that is, after Sun-set [Page 39]and by day-light, was held good to charge the Country.

The Hundred of Warrington, be­ing sued upon the aforesaid Statute for a Robbery committed, it was held by Anderson and all the Ju­stices, that if a Robbery be done in the morning before day or in the evening after the day,Cro. Eli. 270. in any time of the night in which men use com­monly to travel, that the Hundred is answerable for it. But if it be done at twelve or one of the Clock in the night, at which time every one is intended to be in bed, the Hundred is not bound to answer for the Robbery, Quaere of this Case, for it contradicts the forementio­ned Authorities, and the reasons of them.

Though in most cases travelling upon the Sunday be prohibited and punishable by Law, yet if any per­son so travelling be robbed, the Country is not excusable, as it was held by three Justices, in the case of one Wayte, against the Hundred of Stoke, ‘That notwithstanding a Rob­bery be committed upon the Sunday in [Page 40]the time of Divine Service, yet this is no excuse for the Country, for it is their charge and duty to provide that Robberies be not done, and if they be that they suppress them; and the Sta­tute of Winchester is made for the maintenance of the peace of the Realm and the advancement of Justice,Cro. Jac. 469. and therefore ought to be liberally and fa­vourably construed, and the persuing of Felons, who attempt to violate the Sabbath, is no offence but a good work of Charity and Justice, for if it were otherwise it would prove the occasion and encouragement of committing Rob­beries frequently upon that day. And sometimes divers persons upon neces­sity are forced to travel upon the Sun­day, as Physicians, Chirurgeons and Midwives, and it was judged but reasonable they should be protected in their Journies.’

But this Law is in some sort now altered by a Statute made in the 29th: year of the Reign of his pre­sent Majesty, whereby it is provi­ded, ‘That if any person or persons whatsoever which shall travel upon the Lord's day shall be then robbed, That [Page 41]no Hundred nor the Inhabitants there­of shall be charged with it, or be answe­rable for any Robbery so committed; but the person or persons so robbed shall be barred from bringing any Action for the said Robbery, any Law to the contrary notwithstanding; Nevertheless the Inhabitants of the Counties and Hundreds (after notice of any such Robberies to them or some of them given, or after Huy and Cry for the same to be brought) shall make or cause to be made fresh suit and pursuit after the Offenders with Horse­men and Footmen, according to the Statute made in the 27th. year of Queen Elizabeth, upon pein of for­feiting to the King's Majesty his Heirs and Successors, as much money as might have been recovered against the Hundred by the party robbed if this Law had not been made.’

In what place a Robbery must be committed to charge the Hun­dred.

THE Statute of Winchester speaks in general as well of the place, as of the time, yet resolved Co. li. 7. in Sendill's Case,

Though the Law be so in case of a Robbery committed in a House, yet it seems (that since this Sta­tute is to be expounded by the rules of the Common Law) that if [Page 43]a Robbery be done in any known place besides, the Country is liable. It is held in my Lord Dier's Re­ports,Dier 210. Stam. 34. ‘That if a man be slain in the day-time that the Township should be amerced for the escape, though the Murther was done in any Fields or Lane belonging to the Town;’ hence I do infer, that if a person be rob­bed in any open or known place out of the High-way, that such Robbery is within the Statute: I conceive this Case may serve as a rule to expound this Statute by in reference to the place where, as well as that Case of the 3d. of Ed. the 3d. did in point of time, when the Robbery should be committed to charge the Country; for there a Murther was done vespere, in the evening after Sun-set, and the place was amerced for the escape, and according to the reason of this Case it was adjudged in the seventh Re­port in Ashpool's Case, ‘That a Rob­bery done after Sun-set and before it was dark was sufficient to charge the Hundred;’ So likewise because an escape in the night is in no case [Page 44]punishable at Common Law, this Statute hath been expounded by the same rule that the Country should not answer for any Robbery done in the night.

But there is one Case which seems to confine all Robberies (which are within the meaning of this Act) to the Common High-way. The Case was this,

To this I answer, That it is a charge and a duty in­cumbent upon the Inhabitants of every Country to see that no Rob­beries be committed in any place within their respective Precincts, and to use all means to prevent them, and if they be to suppress them, and it does not follow that the Country is not answerable for any Robbery unless the Inhabitants be bound to Watch and Ward at the same time and place where and when the Robbery is committed, for then no Robbery done after Mi­chaelmas and before the Feast of the Ascention should bind the Country, nor between the Feast of the Ascen­tion and Michaelmas, unless it be done after Sun-setting and before Sun-rising; for by the Statute, no City, Town or Village is obliged to keep Watch but from Sun-setting to Sun-rising, and that at no other time of the year but from the Feast of Ascention till Michaelmas, neither is it to be thought in reason that the number which the Statute does appoint to Watch (viz. six at every [Page 46]Gate of a City, twelve to a Tower, and six more or less according to the proportion of the Inhabitants to every Village) should guard e­very particular passage upon the Road: And Watches are not kept in the night to guard and secure Travellers from Robbers in the night, for the Country shall not make any satisfaction for a Robbe­ry done at that time; but their bu­siness principally is to examine all Strangers (which travel in the night) whence they come, whither they go, and what they be, and of their business, &c. and if they find cause of suspicion they may arrest and detain them till the morning, and if then no suspicion be found they may let them go, and if o­therwise they ought to deliver them to the Sheriff, or carry them before a Justice of the Peace, &c. And admitting that the Country is bound to keep Watch and Ward in the day-time, according to the 5th. of Ed. the 4th. where it was held, ‘That the Inhabitants are not required by Law to Watch and Ward upon the [Page 47]Sunday, in the time of Divine Ser­vice,’ yet it was resolved in an Ac­tion brought by — against the Hundred of Stokes, ‘That not­withstanding the Robbery was done upon the Sunday, and in the time of Divine Service that the Plaintiff should recover against the Hundred,’ and I conceive that it may be a ge­neral rule, that in what place so­ever a Felony be committed, for which the Town or Hundred were answerable at Common Law for the escape of any such Felon, that for a Robbery done under the same circumstances the Country shall an­swer. I have onely offered these reasons and submit unto the Judg­ment of the Reader.

How one or more against whom Execution is had may have Contribution from the rest of the Inhabitants of the same Hundred.

BY the Statute of the 13th. of Ed. the 1st. and 28 of Ed. the 3d. the whole Hundred where the Robbery was committed with the Liberties within the Precincts there­of, being liable to answer for the Robbery and the damages sustai­ned thereby, when the party rob­bed had obtained Judgment against the Hundred, it was the usual prac­tice to take Execution for the intire damage against one or very few of the Inhabitants, who being so char­ged had no remedy to force a con­tribution from the residue of the Hundred, which often proved to be the absolute impoverishment and ruine of such Inhabitants and their Families. To remedy this great inconveniency, and to lay the bur­then [Page 49]equally upon the Inhabitants of the whole Hundred, who were equally chargeable by a Statute made Anno 27 El. cap. 13. it is en­acted, ‘That after Execution of da­mages so had by the party against one or few of the Inhabitants, it may be lawfull upon complaint made by the person or persons so charged, for two Justices of the Peace (whereof one to be of the Quorum) of the same Coun­ty inhabiting within the said Hundred or near unto the same where any such Execution shall be had, to assess and tax ratably and proportionably accor­ding to their discretions all and every the Towns, Parishes, Villages and Ham­lets, as well of the said Hundred where any such Robbery shall be committed as of the Liberties within the said Hundred to and towards an equal contribution to be had and made for the relief of the said Inhabitant or Inhabitants against whom the party or parties robbed had his or their Execu­tion. And after such taxation made, the Constables, Constable, Headbo­roughs, or Headborough of every such Town, Parish, Village and Hamlet, [Page 50]shall by virtue of this Act have full power and authority within their seve­ral limits ratably and proportionably to tax and assess according to their abilities, every Inhabitant and Dwel­ler in every such Town, Parish, Vil­lage and Hamlet, for and towards the payment of such taxation and assess­ment as shall be so made upon every such Town, Parish, Village and Ham­let, as aforesaid by the said Justices; And if any Inhabitant of any such Town, Parish, Village or Hamlet shall obstinately refuse and deny to pay the said taxation and assessment so by the said Constables, Constable, Head­boroughs or Headborough taxed and assessed; Then it shall and may be lawfull to and for the said Constables Headboroughs, and every of them within their several limits and juris­dictions, to distrain all and every per­son and persons so refusing or denying by his and their goods and chattels, and the same distress to sell and the money thereof coming to retain to the use aforesaid; And if the goods and chattels so distrained and sold shall be of more value than the said taxation [Page 51]shall come to, then the residue of the said money over and above the said taxations shall be delivered unto the person or persons so distrained. All and every such Constables and Head­boroughs after that they have within their several limits and jurisdictions levied and collected their said rates and sums of money so taxed, shall within ten days after such Collection pay and deliver the same unto the said Justices of Peace or one of them to the use and behoof of the said Inha­bitant or Inhabitants for whom such rate, taxation or assessment shall be had or made as aforesaid, which mo­ney so payed shall by the Justices or Justice so receiving the same be deli­vered over (upon request made) unto the said Inhabitant or Inhabitants to whose use the same shall be called.’

It was held in one Dean's Case 10 Car. in the Common Pleas, ‘That a person coming to inhabit in the Hun­dred after the Robbery, and Judg­ment given, is not liable to the Execu­tion at the Suit of the party robbed, but a person coming after to inhabit is assessable to the Contribution, because [Page 52]the Country is chargeable at the time of the assessment and not the persons which were there at the time of the Robbery committed.’ Vid. Dalton's Justic. 153.

There was another inconveni­ency (before the making of the a­foresaid Statute of 27 El.) which occasioned great remissness and ne­gligence in the pursuing and appre­hending of Robbers, for that by the Statutes of 13 Ed. 1. and 28 Ed. 3. the Hundred where the Robbery was done stood charged with the penalties therein contained, not­withstanding their disability to per­form what the Law required from them, and likewise notwithstanding they used their uttermost endea­vours in making of fresh suit and following the Malefactors in order to bring them to justice; the Inha­bitants of other Hundreds and Counties (besides those where the Robbery was done) knowing that though the Felons escaped that they were not bound to render sa­tisfaction to the party robbed, were careless in discharging their duty in prosecuting the Huy and Cry [Page 53]when it was brought to them; And to the end that the Inhabitants and Resiants of other places might be quickened and spurred on to use all possible diligence to suppress Rob­bers, the aforesaid Statute of 27 El. makes them who shall first make de­fault in the pursuit to participate of the charge, which before was incumbent onely upon that place where the party was robbed, It is thereby enacted, ‘That the Inhabi­tants of every or any such Hundred (with the Liberties within the precinct thereof) wherein negligence, fault, or defect of pursuit after Huy and Cry made, shall happen to be, shall answer and satisfie the one moiety or half of all and every sum or sums of money and damages as shall by force and virtue of the said Statutes of 13 Ed. 1. and 28 Ed. 3. or either of them be recovered or had against, or of the same Hundred with the Fran­chises therein in which any Robbery or Felony shall at any time hereafter be committed or done, And the same moiety shall at any time hereafter be recovered by Action of Debt, Bill, [Page 54]Plaint or Information in any of the King's Courts of Record at Westmin­ster, by and in the name of the Clerk of the Peace for the time being of eve­ry such County within this Realm where any such Robbery and Recovery by the party or parties robbed shall be without naming the Christian-name or Sir-name of the said Clerk of the Peace, which moiety so recovered shall be to the onely use and behoof of the Inha­bitants of the said Hundred where any such Robbery shall be committed.’

And lest the Action, &c. should any way miscarry, either by the death or removal of the Clerk of the Peace it is further provided by the said Act,

There is a private Act of Parlia­ment made in the 39 El. cap. 25. for the relief of the Inhabitants of Begnersh alias Benherst in the Coun­ty of Berkshire, who in respect of the smalness and poverty of the place were not able to make satis­faction for the great and frequent Robberies committed within that Hundred, which hath two great Roads in it, the one leading from London to Henly upon Thames, the other from London to Reading, each of them being at least three miles in length thorough the woody ground called the Thicket; And in respect of the thinness of the Inha­bitants, and few or none of their Villages being situated upon either [Page 57]of these Roads; And having sel­dom any occasion for themselves or their Servants to be much conver­sant in or near the Roads, most part of the Hundred joyning to the High-way being woody ground, and so not fit for Tillage or Pasture, or any other use which may require the frequent being of the Resiants upon it. And so for these reasons they could not conveniently of themselves take notice of the Rob­beries committed upon these Roads. And therefore to ease them of the inconveniencies and of the great charges that they were equally like to undergo, to their utter impoverish­ment and depopulation, it is pro­vided by this Act, ‘That the Inhabi­tants of the said Hundred of Ben­herst shall and may to their own proper use in the name of the Clerk of the Peace of the said County recover and leavy all such sums of money, costs and damages as shall hereafter be recove­red or levied of or against them by force of any of the Statutes which con­cern Robberies, against the Inhabi­tants and Resiants of every or any such [Page 58]Hundred with the Franchises within the precincts thereof, wherein negli­gence, fault or defect of such pursuit or fresh suit (as by the said Statute of 27 El. is appointed to be made) shall happen to be after notice given or Hay and Cry brought to the said Inhabitants or Resiants or any of them of or upon any Robbery which shall be committed within the Hundred of Benherst: And this Act shall give full power and au­thority in all respects to the Inhabi­tants of the said Hundred of Ben­herst (in the name of the Clerk of the Peace of the said County) for the re­covery and levying of all the said mo­ney, costs and damages aforesaid, as the Statute of 27 El. gave or intends to give for the recovery of a moiety or one half thereof. Provided always that no such remedy or recovery shall be had by this Statute for all or the whole sum or sums of money and da­mages aforesaid, but onely in these two cases (viz.) The one where no such notice or intelligence (as by the said Statute of the 27 El. was appointed to be given of every or any Robbery) shall be given to the Inhabitants of the said [Page 59]Hundred of Benherst; The other where the Inhabitants of the same Hundred (after such notice of any Robbery to them or some of them given, or after Hay and Cry for the same to them brought) shall make or cause to be made fresh suit and pursuit after the Offenders with Horsemen and Foot­men, according to the said Statute of 27 El. and where nevertheless the Of­fenders or any one of them shall not be apprehended within forty days af­ter the Robbery committed.’

One of the chief difficulties that the said Hundred of Benherst labou­red under was in regard the Inhabi­tants thereof for the reasons alrea­dy shewed could not of themselves take notice of the Robbery that they might make fresh suit after the Offenders, and nothing could ex­cuse them of the penalty unless they or some other place answer the Bo­dies of all or any of the Robbers, and the party robbed was not obli­ged to give notice within the Hun­dred wherein he was robbed, for notice in another Hundred or Coun­ty is sufficient, provided it be near [Page 60]the place where the Robbery was done, as it appears by the preamble of this Statute of 39 El. ‘That upon a notice given at Maidenhead out of the Hundred of Benherst, and three miles distant from those thievish pla­ces in the Thicket where the Robbery was committed, recovery and Execu­tion were had against the said Hun­dred for above two Hundred and fifty pounds;’ and you may reade in the Chapter of Notice before, how no­tice given at South-Mims in Middle­sex of a Robbery done in Hertford-shire was adjudged good. And not­withstanding this Act, if a Travel­ler be robbed within the Hundred of Benherst, and gives notice of the Robbery at another place out of the Hundred as aforesaid, yet the said Hundred shall answer for the Robbery as formerly, for the mea­ning of the Statute is not, that if there be notice at all give to the Inhabitants of the said Hundred, that for that reason they shall be excused of the penalty, but that if there be no such notice given to them within the Hundred, and the [Page 61]party robbed recover against them, they shall recover over against the place where default of fresh suit shall happen the whole and intire penalty recovered against them. And in case there be such notice and intelligence given to the Inha­bitants or Resiants of this Hundred as the Statute does require, and the Offenders escape, yet they shall re­cover the moiety according to the Statute of the 27 El. against the Hundred where the fresh suit cea­sed, &c.

There is another private Act made for the relief of the Inhabi­tants of the Town of Tewxbury, 8 H. 6. c. 27. in the County of Glocester, against the Commonalty of the Forest Dean, and of the Hundreds of Bledstow and Westbury, in the said County, for that Sundry Robberies were u­sually committed in a riotous man­ner by a great multitude of people of the said Commonalty upon the said Inhabitants of the Town of Tewxbury in their passage from thence upon the River of Severn to the City of Bristol and in their [Page 62]return back again, therefore to re­medy these great enormities,

Of Huy and Cry.

FElony is so odious in the eye of Law that it punisheth the Au­thour thereof with death, and will in no manner connive at the impunity such heinous Malefactors, and lest such violators of the peace should escape her Justice, she commands and requires the aid and assistance of all persons to apprehend and se­cure the Offender, and in case he be not taken in the Fact, to give by degrees a general and universal Al­arm throughout the whole King­dom for all people to take notice of the Offender; so that they may pursue and follow him in order to prevent his flight. And this grand Alarm is called in Law A Huy and Cry.

Huer in French (from whence the Law-Latin word Hutesium is de­rived) signifies to hoot or shout, in English to Cry; And the two words Huy and Cry have but one significa­tion, [Page 67]and as my Lord Cook terms it, the one is but an expression of the other, and sometimes one is used without the other, as in Westm. 1. cap. 9. where all men are comman­ded to be ready at the Cry of the Country. And the Law does not require that this Huy and Cry be made onely with a vocal sound, but it may well answer the ends of the Law if it be performed by an Instru­ment, as a Horn, a Trumpet, &c. as the Mirour and Briton have it, avec Huy & Cry de Corne & de Bouche, 2 Inst. 173. (viz.) with Huy and Cry of Horn and Mouth.

This way of pursuing Felons by Huy and Cry is part of the ancient Common Law of this Realm, as it appears by those Authours who write of the Laws of England in use long before the Conquest, yet some have thought that Huy and Cry had its original from the foresaid Sta­tute of Westm. 1. but that Statute it self proves the contrary, for it finds fault that good suit, that is fresh suit was not duly made.

Who may raise the Huy and Cry, and for what Cause.

THere are two sorts of Huy and Cry, The one by Common Law, the other by Statute. The Huy and Cry by Common Law may be levied by any person who finds just cause to doe it; neither when a Felony is committed is it necessary for him to resort to the Constable of the Town where it was done, and acquaint him with the cause, describing the person, &c. and re­quire him to begin it, but that ei­ther the party grieved or one that is eye Witness to the fact may raise the Huy and Cry themselves, and the people of the Town are bound to follow it when it is once so raised, and if the party does not so he incurs the penalty of the Law. For if a man be present when one is either robbed or murthered,3 Inst. 117. 8 Ed. 2. Coron. 395. and does not endeavour to arrest the Offender, he is punishable by Fine [Page 69]and imprisonment; And so was the Law of old, Siquis aliquem spoliatum viderit, sontem per acela­mationem insequatur, and it is like­wise to be found amongst the Laws of Carnutus that if a man met a Robber in the way,3 Inst. 116. and would suf­fer him to pass without raising the Huy and Cry upon him, he was to pay the uttermost penny the Felons life should be valued at.

It is not necessary that the Huy and Cry be made by the Constable, the party grieved, or him that saw the fact committed, nor that it be raised in the Town where the Fe­lony was done, but that in all ca­ses where every man has authority by a warrant in Law to arrest an Offender, as a man attainted or in­dicted of Treason or Felony, may be apprehended by any person whatsoever, if an attempt be made to arrest any such person and he disobeys it and flies, the Huy and Cry may be levied upon him where ever he be.

If a Felony be done, and A. su­spects John a-Styles to be the per­son [Page 70]that committed it, the suspici­on being personal none can attach him besides A. in this case if A. en­deavours to apprehend him and he makes his escape,2 H. 7. so. 15. I conceive A. may raise the Cry after him because he had power to arrest him.

Note the Spectators are not to be Judges of the degree or quality of the offence; for it one kills ano­ther by chance-medly or se defen­dendo and flies for it, the Town shall be amerced for the escape, and by the same reason they may raise the Huy and Cry upon him, because the Inhabitants being bound to ap­prehend him, the Law allows them the means to effect it, and one of them is by Huy and Cry.

Every Justice of the Peace by vir­tue of his Commission may cause Huy and Cry,Dal. J. P. cap. 28. fresh suit and search to be made upon any Murther, Robbery or Theft committed.

The Statute of the 3d. of Ed. 1. entitled Officium Coronatoris, does ordain, ‘That upon all Homicides, Burglaries, men slain or put in great danger, the Huy and Cry shall be le­vied;’ [Page 71]though generally a Felony ought to be the ground and foun­dation of the Huy and Cry, yet in some cases it may be done though there be no Felony,3 Inst. ib. supra. as if a man be dangerously wounded or assaulted and attempted to be robbed, in both these cases, though in the one there was but a probability of a Fe­lony, and in the other onely a will (discovered by the attempt) to commit it; So it seems if a rape be attempted upon a woman, she may justifie the levying of the Huy and Cry though she was not ravished in­deed.

The Huy and Cry is appointed to be raised in some particular ca­ses by Acts of Parliament, as the Statute of Winchester doth authorise the Watch to arrest night walkers, and if they disobey the arrest and fly, the Watchmen may make Huy and Cry,Stat. Win­ton cap. 3. 4 H. 7. so. 2.18. and such person shall be pursued from Town to Town and from Country to Country in the same manner with the Felon.

It is likewise ordained by a Sta­tute made An. 21 Ed. 1. ‘That if a [Page 72]Forester, Parker or Warrener, shall find any Malefactors wandring within their respective precincts, with an intent to commit any trespass or damage there,3 Inst. 117. the said Officers may levy the Huy and Cry upon them; and if the Offen­ders thereupon will not render them­selves to the said Officers, but fly or make resistance, if any of them be slain by the forementioned Officers, or by any other coming to their assistance, within their bounds or limits, and for the killing of such Offenders no person shall be answerable to the Law.’

As the Law gives authority to e­very man to raise the Country when there is a just and legal cause for it; so it does inflict a punishment upon such as shall alarm their Country without sufficient grounds to doe it; for if any man shall upon a feigned cause raise a Huy and Cry upon ano­ther,3 Inst. 118. 29 Ed. 3. Fitz Tresp. 252. he may be punished by Fine and imprisonment, and likewise may be bound to his good beha­viour as a disturber of the publick peace.

And to the end that Malefactors should find no shelter or protection [Page 73]under the wings of any great Men or chief Officers of any Country, and to engage them as well as other Inhabitants to promote the com­mon Cry, it is ordained by the Sta­tute of Westm. 1. Cap. 9. ‘That if de­fault be found in the Lord of a Fran­chise the King shall seise the Fran­chise into his own hands, and if de­fault be found in his Bailiff he shall suffer one years imprisonment and af­terwards make Fine to the King, and if he hath not wherewith, he shall be im­prisoned for two years; And if the Sheriff, Coroner, or any Bailiff with­in such Franchise or without, for re­ward, or intreaty, or any affinity con­ceal, consent or procure to conceal the Felonies done within their Liberties, or otherwise will not attach or arrest such Felons (whereas they may) or other­wise will not doe their Offices for fa­vour that they bear to such Offenders, and be thereof convicted, they shall be imprisoned for one year, and if they have not whereof to make Fine, they shall have three years imprisonment.’

2 Inst. 173My Lord Cook in his Comment upon this Statute says that the King [Page 74]for such default shall retain the Franchise to himself for ever as forfeited;And Anno 30 H. 3. be­fore the making of this Statute, W. de Haverhull, the Kings Trea­surer, was commanded to seise the City of London into the King's hand, for that the Citizens thereof did not levy Huy and Cry for the death of Mr. Guido de Arterio and others slain there,3 Inst. 118. as the Laws and Customs of the Realm did require.

How and in what manner the fresh suit and pursuit is to be made upon a Huy and Cry le­vied.

THE Statutes of the 13 of Ed. 1. Cap. 2. 28 Ed. 3. Cap. 11. do command in general that Huy and Cry be made after Felons from Town to Town and from Country to Country; But it seems that at Common Law the method of pur­suing [Page 75]Felons was, That the party robbed or otherwise grieved, or some person for him (though that be not necessary as I have shewed before) should repair to the Con­stable of the Town, and give him notice of the Felony, &c. and re­quire him to raise the Huy and Cry, and the Constable ought to raise the power of the Town, and if the Offender be not found there to car­ry on the Huy and Cry to the next Constable, who was to doe the like in his Town, and so from Constable to Constable untill the Offender be taken, and this is to be done as well in the night as by day. Cook 3 Inst. 116. 2 Ed. 4.8, 9.

It seems no Town is bound to pursue any further than to the next Constable,Co. li. 7. so. 7. Dier 370. for such a pursuit is a good excuse for them if the Town be endicted at the King's Suit for the escape of a Felon. And every Town in this respect is a distinct Body, and ought to aid and assist their Constable (when he requires them) in the execution of his Of­fice; as the whole County is bound [Page 76]to obey the Sheriff's command when he hath occasion to make use of the Posse Comitatus; And if the Inhabitants of any Town were obliged to prosecute a Felon fur­ther than to the next Constable, then by the same reason they might be required to go on from one end of the Kingdom to the other, which is both inconvenient and unreaso­nable.

And this seems to be the Law be­fore the Conquest,Mirour cap. 1. for the Mirour of Justice, treating of the Ordi­nances of the ancient. Kings, saith, it was Ordained, ‘That every one of the age of fourteen years and upwards should follow criminal Offenders from Village to Village at the Huy and Cry;’ it is said elsewhere that ‘Pervetusta Anglorum Lege sancitum est ut siquis damnum ex Furto passus,3 Inst. 172. aut qui ip­sum spoliatum viderit sontem per ac­clamationem insequatur, Constabulari­us ejus Villa cujus opem implorat, auxilia ciere, furemque perquirexe debet, quod si furem illic non depren­derit in proximam transmigrare, & Constabulariam ad ferendas suppetias [Page 77]iterum invocare,’ It is established by the ancient Law of England, that if any person be robbed, ei­ther he himself or one that sees the Robbery done, may follow the Offender with a Huy and Cry, and the Constable of that Village whose help he requires, ought to call in aid and make enquiry after the Felon, and if he cannot find him there he ought to repair to the next Village and require the Constable of that place to bring in further aid to pursue the Felon.

If a Huy and Cry be levied, the Officer of the Town where the Fe­lony, &c. is done, as also the Of­ficers of other Towns whither the Huy and Cry is brought ought to give notice to all the Towns round about them respec­tively, and not to one next Town onely,Dal. J. P. cap. 28. to the end that the Cry may spread it self far and wide into all Countries; So that it may be in a manner impossible for the Felon to escape, and in such cases it is re­quisite to give notice in writing [Page 78](to the pursuers) of the things stoln, &c. and of the colours and marks thereof, and likewise to give a description of the person of the Felon, his Horse and Apparel, &c. and (if it can be known) to shew which way he is gone.

After notice given,St. 3 Fd. 1. de Offic. Cor. Braclon li. 3.10.121. the pursuit from place to place must be made immediately, with all the haste and expedition that may be, and that likewise carefully and industriously, and the pursuers if possible are to find out the Felon's footsteps, and to tract him all the way he went, and to use all other devices and means which may seem most condu­cing and effectual for the apprehen­ding of the Felon, since our Law of England directs the pursuers to tract the Felon, I cannot pass over in silence what the learned Sir John Davice mentions in his Preface to his Reports, ‘That amongst the mani­fold absurdities of the Brehon's Laws, formerly in use amongst the Irish, they had one custom that deserves imitation, which was, That if any cattel were stoln and the Owner followed the tract’ [Page 79](wherein, saith the Authour, the Irish are incredible cunning, inso­much as they can find the same by the bruising of a grass in the Sum­mer-time) ‘if the person into whose land the tract is brought cannot make it off into some other land, he is to answer the stealth to the Owner; and this Law is ratified there as both use­full and necessary for that Kingdom, though the rest of the Brehon's Laws be abolished.’

Sir Nicholas Hide delivered in his Charge at Cambridge Assises, Anno 1629.Dal. J. P. cap. 28. ‘That a Huy and Cry must be made and pursued with Horsemen and Footmen, and that not onely a private search must be made in every Town, but that they must raise the Country as they go, and all still to follow the Huy and Cry as against a common Enemy.’

Also if a Huy and Cry be brought into a Town the Officers thereof ought forthwith to search all suspec­ted Houses and places within their limits; And any person who fol­lows the Huy and Cry (whether he be an Officer or no) may arrest all [Page 80]such persons as in the search or pur­suit shall be found suspicious, and thereupon he that is so suspected ought to be carried before some Justice of the Peace of the Country where he is taken to be examined where he was at the time of the Felony committed.

It is provided by the Statute of the 27 El. ‘That no Huy and Cry made by the Country or Inhabitants of any Hundred shall be allowed for a law­full Huy and Cry or pursuit unless the same be done both with Horsemen and Footmen,’ Quere, Whether this Statute extends to a pursuit at Common Law or at the suit of the King,27 Eliz. cap. 13. or onely to a pursuit to be made at the suit of the party rob­bed, who is to recover against the Hundred upon the Statute of Win­chester.

Who are bound to pursue upon the Huy and Cry levied.

WHen the Huy and Cry is rai­sed every Inhabitant (whose assistance the Law requires) ought to follow it, though he receives no command or notice thereof from any Officer who hath authority to demand their aid in this case, for if a Felony, &c. be committed and a Villor hears the Huy and Cry thereupon levied, he is not to ex­pect command or notice from any person, but ought immediately to follow the Cry; for the Law which enjoins this duty upon him gives him a tacit command to doe it, and the Huy and Cry it self (being once heard) is a sufficient notice; And this Law is as ancient as we are able to trace it by the light of Letters; for many years before the Conquest it was held for Law,Canuti Leges. that if any man heard the Huy and Cry and did not pursue, he was to be [Page 82]punished as a Contemner of the King's Laws.

The Statute of Westm. 1. being but in affirmance of the Common Law commands ‘all persons to be in readiness to arrest Felons when ever the Cry of the Country summons their attendance,West. 1. cap. 3.’ and by another Statute made the next year after it is com­manded, ‘That all persons shall follow the Huy and Cry, and whoever does not and be thereof convicted shall be attached to answer before the Justices of Gaol delivery, and for such offence shall be fined and imprisoned.Offic. Cor. 4 Ed. 1.’ Brac­ton li. 3. fo. 118. 3 Ed. 3. Coron▪ 333.

And Bracton, who writ before any Statute made concerning Huy and Cry, saith, ‘Bracton li. 3. fo. 118.That all Knights and others under the age of fifteen years, ought to take an Oath that they will not receive any outlawed persons, Murtherers, Robbers, or such as have committed Burglary, and if at any time they should hear the Huy and Cry raised they should immediately follow it with their whole Family,’ and herewith agrees Briton fo. 15, [...]9 [Page 83]but The Mirour of Justice, Mirour cap. 1. who was the first Authour that writ of the Laws of England, relates it to be a Law established by the ancient Kings of this Realm, ‘That such as be but of fourteen years of age are bound to pursue Felons upon the Huy and Cry.’

Notwithstanding what is said be­fore be general, and its literal sense comprehends all persons, yet there are some that may claim an exemp­tion from this service or duty; As, if a man be sick and not able to travel, the Law will allow him a privilege in respect of his infirmi­ty, as well in this as in other cases; for if a Pracipe quod Reddat be brought against John a-Stiles re­turnable at such a day, the Tenant may be essoined de mal [...] lecto, that is, he may be excused of his appea­rance, and thereby prevent his de­fault, because he is sick a bed and cannot travel; So if the Sheriff ar­rests a man that is sick and returns Languidus, this is a good return, and the Sheriff shall not be amer­ced, for the Law constrains no man [Page 84]to expose his life to imminent dan­ger, unless it be in the defence of the Commonweale, wherein the publick safety ought to be dearer to every man than his life.

A man may be exempted in re­gard of any other corporal infirmi­ty, whereby he is visibly disabled to effect that which the Law ex­pects to be done, for Lex non cogit ad impossibilia. The pursuit ought to be made by men that are endued with strength and agility of Body, so that the pursuer may be in a ca­pacity to follow the Felon, either by running or riding, &c. with e­qual speed to that of the Malefac­tor, whose fear and the sense of his guilt adds vigour to his flight, and puts him upon all desperate enterprises in this extremity, and to oblige a blind or lame person, &c. to the performance of this Office were to no end, but should be in it self vanus & inutilis labor, and from the same reason I infer that one over-grown with years may be ex­cused in respect of his age, as a person superannuated is freed from [Page 85]serving upon Juries. As for age, I conceive there is no certain term of years limited when any person shall either begin or cease to pursue upon the Huy and Cry, but in this case the abilities of the body must be the standing rule, as that of the mind in committing of Felonies; for though the Law computes four­teen years to be the age of discreti­on, yet if one under that age kills another, and it can be discovered by any circumstance that he had understanding, to discern betwixt good and the evil he had done, the Law will adjudge it Murther, for in this case malitia supplet atatem; so that if a person of younger years be of greater strength and ability of body than one of twice his years, who is weak and infirm and not able to answer the end of the Law, such person may be required to pur­sue an Offender upon the Huy and Cry, (notwithstanding the two a­foresaid authorities) for his capa­city of performing the duty, brings him within the reason of the Law, which being altered alters the Law [Page 86]it self, for ratio Legis est anima Le­gis & mutata Legis ratione mutatur & Lex.