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PLEAS
O F T H E
CROWN:
O R, A
Methodical Summary
OF THE
PRINCIPAL MATTERS
relating to that Subjedt.
By Sir Matthew Hale. ,Knight,
Late Chief Juftice of the King s Bench,
L a N D 0 N:
Printed by the Affigns of Richard and Edward AtkynsJEXagmzs ; for W. Shrewsbury, at the Bible in Duke- Lane, M DC XC IV.
i i t A » Dims.
THE
PREFACE.
THere was lately Puhlifhed an Impreffion , fuch as it was , of this Book without any Name of Author to it ; but yet was commonly given out to have he en Written hy the late Chief Juflice Sir Matthew Hale , and fold for a Book of his Writing, the Original indeed was written by him many years fince : But that Impreffion, as it feems, was, from a furreptitious and very faulty Copy , and was accordingly very Faulty and Corrupt throughout in many refpefts, what by Omiffions not onlyoi Marginal References very frequently + but of mxny intire Para- graphs , whereby the Book it j elf is in many places mutilated , as the Reader may ea/ilyobferve,p^g.i^tz^9 48,5x^7,108,110, 1x1,183, 187, ioo,xoi,i03?xo8. of that Impreffion A z com-
The Preface.
cempared with this, he fides divers other fhorter , hut not lefs material Notes left out in other places : What by Omiffions and Miftakes of (ingle Words, Sentences, and parts of Sen- tences, and fome times by an unskilful Critical endeavour to reflore to fome fenfe what thofe Miftakes had made N on jenfe, whereby the Senfe is in many places maimed and broken, in fome much altered^ and in fome expreffed quite contrary to the Authors words and meaning. Inflames whereof the Reader may fee in pag.x. Iin.i7, p.4. Li. p-7- 1.6. p. 10. 1- 17. p. 14. I 6- p. 15. 1. penult, p. 16- 1. ij,&c. the like throughout the whole Book. And what by Tranfpofition of divers matters mij placed among other things to which they have little or no affinity or relation, whereby they are not only wanting in their proper places, but the Order and Coherence of thofe other Matters among which they are inter* pofed, is interrupted and confounded : Thus one half of the Matter belonging to this Title Procefs, which Jhould have been continued $-176, is placed
p.191
The Preface.
P>i9M9*»*93- under theTit. Pleas, and the greateji part of the Title Principal and Acceflbty,which Jhould have been continued p. 196, is there left off in the midjl of a Sentence and placed before at p. 177* as if it was the beginning of the Title : and under the fame Title four Paragraphs toge- ther,which belong to Acceflbries after, and fbould have been continued p. 1 80, where in the Original they have a connexion with what immediately preceeds and follows 9are placed before at p. 179, among what belongs to Ac- ceflbries before. Again, the greateji part of what belongs to the Title Clergy, and fhould have been continued p. 19 \yis placed p. 197, @c. under the Tit. Arraignment. To thefe might be added other Faults andMiflakes, but thefe may fuffice tojhew the general corruption of that Impreffion*
And though divers of thefe Faults and Mijlakes are not to be imputed to any Negligence in the Tranfcriber or Publifher , ( whereof notwithflanding he cannot be acquitted in others ) but partly to his unacquaintance with the A 3 Au-
The Preface.
Authors hand ; and partly to his Ignorance of his way of Writing,
who frequently at the end of his Chap- ters or Sections ufed to leave more or lefi Blank paper, and when other mat- ter occurred ' , more than could le in* ferted in thofe places, did many times write the reft in fome other place ^where he found moft rodm for it, and for the mojl part without any Note of re- ference toit;fo that it was very diffi- cult for any, who was not well acquaint- ed with his Writings, to reduce thofe Tranfpofitions to their proper places ; and therefore of the many Copies, which are alroad of this Book J could never yet fee any free from divers fuch Miflakes ; yet ly this means (to men* tion no other ) whether through want of Skilly or of Care, or of acquaintance with the Author s Hand and way of Writing, both the Author hlmfelf was •much injured by the pMhlication in in that manner, and the Reader alfo.
Wherefore to dofome Right to the Memory of the deceafed Author, and to the Puhlick , and more particulary in fome fort (as far as in refpeft of
feme
The Preface.
fome Circumftances was though? fit ) to gratifie the Gentlemen of this Ho- nourable Frofeffion of the Law , who poffibly may take it ill to be totally deprived of the benefit of the Writings of fo great a Mafter in it , it was thought good by a Friend of the Au* thors , (whofe Care the Author de fired in the Publication of his Writings, after his death) to furnifb the Book* feller with a compleat Copy corrected according to the Author s Original, only what things were therein tranf pojed,were in the Copy reduced to their proper places Recording to his Mind. To this end it is fit alfo that the Reader be acquainted, that this Book was Written many years (ince , about the end of the Reign of King Charles the Fir ft, or not many years after ; was not by the Author intended for thePrefs, nor fitted for it ; and as he faith in a Letter to one of his Ho» nourable Brethren , to whom he lent it, was then never read over by him fince he wrote it, as the Reader may of himfelf perceive by fome Faults , which had efcaped him in writing, A 4 and
The Preface.
and remain uncorrected, as p. 8. 1. 22. after the word Dower it is apparent that the word [faved] er jome Juch is wanting (which in the former Im- preffton was endeavoured to be amend- ed, but not without diminution of the Author s meaning) and jome others 9 which are left to the Reader to correal according to his own Judgment , a Method often approved by the moft judicious Criticks in the publifhing of other mens Writings 9 and for fome fpecial Reasons at this time thought fit to be obferved in this.
But left while we endeavour to do Right to the Author , we flhuld do Wrong to his Book, the Reader wuft alfo knqwj that notwithfianding what hath been J aid , this Book hath been vjell accepted and efteemed by divers rf the mojl Eminent Lawyers , who much defued and obtained of the Author himfelf to have Copies of it many years Jince. And though pro- bably the Author never at all read it entirely over after he wrote it \ yet it is certain he many years after made divers occafional Additions to it :and9
The Preface.
f I be not much miftaken, he didufu ally carry it with him in his Circuits.
He hath written a large Work upon this Subjeil% Intituled , An Hiftory of the Pleas of the Crown, wherein he [hews what the Law anciently was in thefe matters , what Alterations have from time to time been made in it, and what it is at this day. He wrote it on purpofe to be printed \ fini- shed it, had it all tranferibed for the Prefiin his life-time, and had revifed part of it after it was tranferibed ; but whether , or when it will be pub* lifhed is uncertain. In This he doth fummarily relate what the haw is at this time, or rather was when he wrote **» for fome Alterations it hath fince received, though not many , by fome late Statutes ; and therefore may not only be of ufe till that be publijhed9 but may alfo continue of good ufe after that is pullifbed , whenever it be, as the moft proper Introduction/^ Stu- dents to this part of the Law that is extant, and as a Synopfis or Epitome of the moft ufeful part of that.
A Table
A Table of the Titles,
and Method of the Book.
OF the Kinds of Offences, pag. i. i. immediately againft God.
Herejte, 3 .
Witchcraft^. %. immediately againft Man. 1. Capital, Treafon,
High, 9. Petit ,z$. Felonies,z6.
ly Common Law. 1. againft the Life of Man. his own, Felo defe,zS. anothers.
1. Involuntary, 1. per Infortunium. Chance-medley, 3 1. Deodand,^.
i. ex Neceflitate. Homicide ex neceffttate, 3 £.
1 in reference to Public k Jufiice,^
z.upon
A Table,
2. upon Private Inter efl,^.
Juflifialle ,ibid. Excufable Se defendendo^i.
2. Voluntary. i. ex Malitia prsecogitata* Murther,^.
z. fine Malitia. Manjlaughter9$6.
x. againft the Goods Larceny
i. Simple,6o. a. Mixtfji. i. from the Perfon, putting in fear, Rohlery.yi.
without putting in fear^
- 7f 2. from the Houfe, 76.
to thefe may be added
Piracy, 77.
3. againft the Habitation Burglaryjy.
Arjon$5.
4.againft the Protection of Juftice. Breach of Prtfonfa.
but therein firft of Arreft,8<).
Bail,
A Tabic.
Bail, 9 6. the offence it (elf Rumper Prifon, 107. Efcape.
in the Party, m,
in a Stranger, 1 12.
£# an Officer, 113, Refcue,n6.
Felonies by Statute, 117. Offences not Capital, i%6.
by Common Law, greater, Mifprifions, i.Negative.
of Treafon,izj.
of Felony, 129,
Concealment ly Juries, ibid»
Theftbot e,i$o. Mifprifions Pofitive, 131. Maihem3 lf%}
Offences not Capital of an inferiour nature, 1 34.
1. by an Office. Neglettof Duty, Bribery, Extortion.
2. by a common perfon Breach of Peace9
1 Affray ',13*
2/&tf
A Table.
i. Riot, 1^7.
3. Forcible Entry ,138*
Detainer, %$$. Re&itutionfi40.
4. Barretry.
f. Riding armed. Going armed, Deceipt and Cozenage, tfufance.
Publick Bridges,i43.
Highway 5,144.
Inns, 146.
Ale-hqufes,i<\7. Offences hot Capital, (y 'Statute, 15^ Forgery.
Perjury and Subornation, ijl.
Champerty, Embracery Maintenance,
iff-' ,
Ingrofftng, ForeJlaOing and Regra-
ting,i$z. Matters of Religion, 153. Proceedings againfi Offender s% 1 y 6. i*The Jurifdtftion or Court, ibid* The Kings Bench, ihid. Gaol Delivery1,!^. Oyer andTerminer,i6x* Jujlicesof Affize,i6^ of Peace, 165.
Coroner
A Table,
Coroner ,1 70. Sheriff,ij$. Court Leet, 175] Means of hinging Capital Offenders to trial,ij6. Appeal,ij$.
of Death ,181. of Rohbery, 184J of Rape,t$6.
Court in Appeal9iSj. Pleas, 189. Approver, 1 92. Indittment, 198.
Proceedings common to Ap- peals and Indictments. Procefi,zo$. Arraignment ,212.
Principal and Acceffory%zif. Arraignment of Principal and Accejfory ',221. Demeanor of the Prifoner,zz$. Mute, ibid.
Paine fort & dure, 227, Pleas,zz8.
Declinatory. Sanffuary, 228. Clergy, zz£.
To
A Table.
To the Felony, 243. Demurrer, ibid. Pleas in Abatement. Mijnofmer ,ibid. in 5^,244. Auterfoits Acquityibid.
Convift,z4J- Pardon,z$o. General /Jfue^^l Trial
per Patriam,z^.
Procefi againfi Jury, z$6.
Tales ,z 57 '♦
Challenge ',2J9»
Evidence to the Petit Jury,
262. Verditl, z6j. by Battel,\b\&. by Peers, ibid. Judgments in fever al Cafes, z68.. Falsifying of Attainders ,&c.zjo. Execution and Reprieve ,272.
Notes
Notes ufed by the Author in his References.
GM.Car. Coke upon Magna Chart**
C. Weft. i. Coke upon W.i.
GPC. Coke's Pleas of the Crown.
Com. Plowdens Commentaries.
Ct.andCtom. Crompton.
Dal. Daltonsjujlice.
Dy» Dyers Reports .
Kel. Kelwafs Reports.
Lamb. Lamharfsjuftice.
S.PC. Stamford's Pleas of the Crown.
4 R# Coke's fourth Report.
9 R. Coke's ninth Report.
I Licenfe this Book to be Printed by William Shrewslury.
1 8 Mart.
1677. Ri: Rains ford*
PLEAS
OF THE
Crown.
THis Treatife (is) divided under thefe Conside- rations : i. Of tkk&mkvi Offences. z. Of the Incidents unto thefe Offences.
The Kinds of the Offences are di- flingui/hed according to the diverfity of the Laws by which they are in- troduced, i)iz.
Offences by the Common Law* Offences by the Statute*
B Offences
#ltas of tfje Ctotom
Offences ly the Common Law , di* ftinguiihed according to the degrees 6i the Offence.
Capital.
Not Capital.
Of Capital Offences ^hey are fuch, i. As are immediately againft
God. z. Immediately againft Man. Thole that are Offences not Capi* tal by Common Law , as Mifprifi- ons, Maihem , Breach of the Peace, &c.
C Capital. Offences ly the Stat A
CNot Capital.
The latter are many, and not here to be treated of.
Herefie.
Herefie.
i. T^l TOwfirft concerning Offences X^| Capital,that are immediately agahfl the Divine Majefty , which are
C Herefie.,
/ and
^Witchcraft,
i. Concerning Herefie , wherein Confiderable,
I. What is Herefie?
At this day all thofe former AcfocPuj. which determined certain Points to be Herefie t ftand repealed ; and though there be no exprefs A£t de- termining what fliall be faid Herefie, yet the Statute of i EL c, i. dired:- ing the High Gommiffion , feftrains it.
i. To what formerly determined Herefie , by the Authority of the Canonical Scriptures.
x. To wjiat adjudged Co by the firft four General Councils.
3* To what expredy adjudged B % Herefie
4 tymftt*
Herefie by any other General Coun: cil by exprefs words of Canonical Scripture.
4. To what fo determined by Par- liament by aflent of the Convocati- on.
II. Who 10 judge of Herefie ?
1. The Temporal Judge cannot punifli any Perfon for Herefie by In- di&ment, or otherwife :
But yet incidently he may take knowldge whether a Tenet be He- refie, or not : As where by force of M.5E.4. the Statute of x Hen. 4. now re- Rot*4^ pealed ,Kefar was committed for fay- ing, That though he were Excowntu- M. 1 1 H. 7. nicate by the Archbijhop , he was not R.317.CB. j^ fej:ore Gocf, anj \^arner Commit- ted for laying , Non tenetur folvere Jecimas, and thereupon imprifoned : In a Habeas Corpus by the former, and a fpecial Juftification in an Acti- on brought by the latter , adjudged neither Herefie.
2. All the Statutes that gave power to Arreft or fmprifon for Herefie, viz. z Hen. 4. ij. % Hen. 5. 7. j Rich. 2. c. j. 1 and % Ph.
anc
and Mar. c. 6. are repealed by 1 E- liz.
III. The way to convid of He- retic i. By the Common Law.
i. By the Archbifhops and Bi«
ihops in a General Synod, a. By the Bifhop of the Diocefe. z. By the Stat, 23 U.S. e.g. By the Archbifhop in cafe of the aflent or neglect of his Suffragan. IV* The Punijbment of a Party convid: of Herefie. Upon Certificate of fuch Convi- ction , a Writ De Haretko Ccmhu- rendo granted, without which they cannot proceed to any temporal Pu- nifhment.
But if after Conviction he abjure his Opinion, his life (is) faved.
But if he relaple after Abjuration, then irrecoverable.
§. But (by) the Statute of 2 fir. f* c. 7. all Statutes which introdue'd any Forfeiture (land repealed: Nei- ther did the Common Law inflift any Forfeiture, becaufe the proceed- ing was only pro faint e anitntf.
B ? Witch-
Witchcraft,
AT Common Law Witchcraft j> puniflied with death, as Here- fie, by Writ, De Haretko Comhur en- do.
The Statute of i Jac. 12. the only Law now in force againft it, and di- vides it into two Degrees :
I. Witchcraft in the firfi Degree made Felony without benefit of Clergy, including/^/* Species :
1. Invocation or Conjuration of an Evil Spirir.
2. Confult, covenant with , enter- tain, employ, feed, or reward any Evil Spirit to any intent, (though no ad: be dqne thereupon.)
3 * Take tip any dead Per/on , or any part thereof, to be employed pr ufed in Witchcraft, Charm, &c. (though apt adtua4iy ufed or em- ployed)
4>pxer-
WittyttaU.
4. Exercife any Witchcraft , In- chantment , Charm , or Sorcery , whereby any Perfon fhall be killed, deftroyed, confumed, ot lamed in his or her Body , or any part thereof (which requires the ad: to be done, viz. laming, confuming,&c.)
Thefe and all Acceflary before, to fuffer as Felons without Clergy: But Acceflaries may be after; but then they have Clergy, becaufe not fpecially excluded.
II, Witchcraft in the fecond De- gree.
1. (To) take upon them by Witch- craft, fychantment, Charm, or Sor- cery to tell where Treafure is to be found : They that take upon them to do it, though they cannot , yet within this Law.
2. Or where Goods ( loft ) or flolen may be found,
3. Or to the intent to provoke any Perfon to unlawful Love ; thefe Claufes come under the word [taking upon]
B 4 4.Where*
4. Whereby Goods or Cattel fliajl fee A'ftroyed (which requires an adhial deftroying, and not a bare taking upon them.)
5'. Or fhajl ufe Witchcraft, &c, to hurt any Perfpn, though the fame be noteffe&ed.
The Punifhment of thefe, 1 . The firft Offence , a years Im- prisonment and Pillqry.
2,. The fecond Offence, Felony. Put this requires :
1. An A&ual Convi&ion and
Judgment for the firft. %. Thefecond Offence qiuft be committed afjter the Judg- ment for the firft. The like in Fprgcry , Jranfpqrta- donof Sheep,&c.
But the Confequents upon an Attainder, viz. Corruption of Blood, and loft of Dower : But during life the Lands forfeit.
And Note,- % Saving againft Corruption of Blood preleryes the Defcent ; and a faving of the Land jto the Heir prevenq Corruption of Blood.
f
9
High Treafon.
Concerning Offences a^ainft Man immediately diftinguiihed it\ their Judgment or Event: Capital, or not Capital.
Capita/, either by the Common Law or the Statutes ; and thefe either Treafbn or Felonies.
f High Treafon,
Treafbn, either-^ or
cPetit Treafbn.
High Treafon : and this though an Offence at Common Law , yet becaufe there be ibme mixtures of Introdu&ions of new Treafbns by Statute, would be confidered toge- ther.
i* Confidering High Treafon , it j§ diflinguifhed into four kinds : i. That which concerns imme* diately the King, or his Wife or Children.
2,.That
io ^tgl) £reafom
x. That which concerns his Officers in the Adminiftrati- on of Juftice. 3. That which concerns his
Seal. 4* That which concerns his Coin. Before we come to the Particu- lars, fome things to be generally pre- mifed.
1. That thofe that have any fuch difebility upon them , that difables them to ad; reafonably, cannot com- mit Treafbn, viz. Non compos mentis, and Infants within the Age of dif- cretion.
And therefore if a Tray tor be- comes Non compos before Convidrion, he fhall not be Arraigned ; if after pp. fo.4. Convi&ion , he fhall not be execu* ted.
An Alien Enemy, committing any hoftile ad, dealt with as an Enemy : an Alien amy committing any Trea* fon, a Tray tor within the Law.
z. The Statute of x$E. 3. redu- ced and fetled all Treafons; and by that means all Treafons that were
before
V?tgt> £teafom
ii
before are reduced, and the Stat, of i Ma. c. i. i-einforced the Statute z$ E. 3. and reduced all newTrea- ibns unto the old Standard of 25 E. 3. ahd fo all new Treafons declared between z$ E. 3. and 12%*. abrogated.
3. All Treafon includes Felony ;C.pi.i/. rherefore if the Indi&meftt want proditvrib, a Pardon of all Felonies dilcharges it.
Now concerning the kinds of High Treafon.
1. Comparing and ifliagihJftg the death of the King, Queen, tor Ptince, and declaringthefamebyfome open Deed.
I. What (is) a Compaffing the death?
DedariflgJb&^an apen afft a de- fign to Depofe or jfflprifon the King, is an Overt ad: to manifeft a com- failing of His Death.
Calculating Nativity de Roy vemy comparing.
II. What *King>
•1. A Kipg before his Coronation,
a King
i2 ^tg!) £teafom
a King within this Statute, when the Qown defcends upon him.
x. A King de fa&o , and not de jure, a King within this Ad, and a Treafon againft him punifhable , though the right Heir get the Crown*
3» A Titular King , that is not Regnant; as the Husband of the Queen regnant, not a King within the Ad. Vid. i © i Ph. & Ma. c.io. but the Queen is.
4. The right Heir to the Crown yet not in Pofleflion thereof, is noi a King within the Ad.
III. What the Kings Wife ?
It extends not to a Queen Dow ager.
IV. What the eldeji Son and Hei of the King within the Ad
The fecond Son , after the deatl Of the eldeft, within the Stat. ' The eldeft Son -of a Queen Re£ Barit'within the Statute.
The Collateral Heir-apparent , a
Roger Mortimer, 1 1 R. z. the Duk
of Tork 39 H. 6. not Son and Heii
within this Ad.
V.Wha
V. What an Overt a£l requifite to make fuch compaffing Treafbn >
i. An Overt a& muft be alledged in every fuch Indi&ment , and pro- ved.
x. Compaffing by bare words is not an Overt aft, as appears by ma- ny temporary Statutes againft it : i6 H.ix.i^.i Elx.6. ijElci.i^EL c. 1, &c. but the fame fet down by him in writing is an Overt -aft.
3. Confpiring the death of the King, and providing-Weapons to ef- %&: it. or (ending Letters to ftcond jt; aflembling People to take the King into their power; Lord Cob- bants Cafe; writing Letters to % Foreign Prince inciting to Invafionj anOjyert adt.
4. Confpiring to levy War no, Overt adL unlefs levied , becaufe it relates to a diftin& Treafon.
II. Treafon levying War againft
the King.
.1. A confpiring or compaffing to
levy War, without a War de fcfto ,
no Treafon ; but if a War levied,
the Confpirators Traytors as well
as
i4 $iBt> ©*afom
as the A&ors : This appears by the Stat. 1 3 El. c.i. that made fuch Con- fpiracy to levy War, Treafon during the Queens life.
2. A raifing a Force to burn or throw down a particular Inclofure, only a Riot ; bur if it had been to go from Town to Town, and caft in all Inclofures,£rtf^#w/sCa{e; or to change Religion , or to inhance the Salaries of Labourers , a levying of War,becau(e the End publick.
3. Joyning with Rebels pro timore mortis , & recede runt quam cito po- tuerunt, no levying War. Oldcafil&s Cafe.
4. Holding a Fort or Caftle a- ■'gai-nft the King's Force, a levying of
War.
III. Treafon Adhering to the Kings Enemies , giving them Aid within the Land and without. • 1. What Adhering ?
1. Giving Aid and Comfort to them.
2. Surrender the King's Caftle for reward.
x.Whac
l^iglj £reafom *,s
i. What an Enemy ? i. The Subject of the King be- coming a Rebel, he that out of the Realm fuccours him, this not adhe- jjring to an Enemy within this jClaufe.
2. An Enemy coming hoftilely • into England, fliall be dealt with as
an Enemy , executed by Marfhal Law, or ranfomed ; but a Subjedt iaflifting him fhall be dealt with as a Traytor.
3. The Scots invading England in :he Queens time adjudged Enemies, :hough Scotland then in Amity. Lord Herns Cafe.
3. Within the Land or without, how that Foreign Treafon fliall be :ried.
1. At Common Law fpr a Fo- reign Treafon , the Indict- ment and Trial muft be where the Land lies. z. By the Stat. ?jiZ8. c. 2. **•***• which is yet in force , it may be inquired of and tried in B. R. or by Com- miffion in any County where
1 6 tots!) %utSw.
where the King appointSjthi King's Signature may be ei ther to the Commiflion o the Warrant thereof. Treafon done in Ireland is withii that Statute, Perrons Cafe.
Trot.Ab. 3- By thc Stat- *8#I 8. c 15
^ 3 8i- Treafon upon the Sea inquirable an<
triable by Corfimiflion in any Coun
ty; at Civil Law it muft be befor
Lord Admiral.
IV. Treafon, Violation of
1. The King's Wife , extends nc to a Dowager*
§. If flic ctfnfent 'tis Treafon i her.
2,. The Prince's Wife.
$. The fame Law as before.
3. The Kings eldeft Daughter the living.
Thus far of Treafons that relat to the King's Perfoa and neareft R< lations, wherein generally,
i. There muft be an Overt adt t manifeft that Offence.
z. That muft be made appear b manifeft Proof, and not by conjc dtures.
3.4
l^ifllJ fCceafon^ i7
3. He mult be lawfully attaint thereof, either by Confeflion, or by j his Peers in his life time.
And therefore if a Perfon be flain I in open War he forfeits nothing, J neither can he be attaint in fuch ' cafe, but by Parliament.
2. Thus far of Treafbns relating j to the King immediately ; now fol- I lows that which is Interpretative I Treafon.
§. Killing the Chancellour, Trea-
'1 fiirer, Juftice of one Bench or other,
. Juftice in Eyre,or of Affize,or Oyer
\ and Terminer in their place, doing
their Offices.
I. This extends but to the Perfons
here named,not to the Lord Steward,
lB Conftable, or Marflial, or Lords of
Parliament. f %. It extends to thefe only doing 1 dieir Office.
3, It extends only to a killing, ;t lot a wounding without death. But by Stat. 3 H. 7. c. 14. com- >affing to kill the King,or any of his Council, made Felony.
%£oun-
18 ikigfj 2D*afom
3. Counterfeiting the Great Seal, or Privy Seal.*
1. It muflt be an a&ual Coun- terfeiting: Therefore com- paring to do it, no Trea- fon. 2. Affixing the Great Seal by the Chancellor without Warrant, no Treafbn.
3. Fixing a true Great Seal to another Patent is a great Mifprifion , but not Trea- fon ; nor a Counterfeiting within this Statute ,2 Hen.4. 25.
4. Aiders and Confenters to fuch
Counterfeiting are within thisAd.
5. The Counterfeiting of the Privy Signet or Sign Ma- nual not Treafon within this Ad, but made fo by the Statute of i-tifz P. M. c.i 1.
V.Treafon
V. Treafon concerning the Coin.
1. Ccunterfeithg the King's Coin. J*"* This was Treaion at Common Law, memiaiiay,&. But yet the Judgment was onlycftTreafon- as in cafe of Petit Treafon ; this 3 H,7'2°' being but affirmance of the Com- mon Law.
But whereas Clipping&c. is made High Treafon by fubfojuent Sta- tutes, the Judgment is to be hang'd, drawn, and quartered, becaufe intiro- dudtfve of a new Law. Herein confiderablef
1. What fliallbe a Counterfeiting* Clipping, Wafting, and Filing of Money for lucre or gain, any of the proper Money of the Realm ; or of other Realms , allowed to be cur- rent by Proclamation , not Within this Statute , but made High Trea- fon by Stat. 5 EL cap. 11. but no corruption of Blood , or lofs of Dower.
Impairing , Diminifliing , Falfi-
fying f fcaling or lightening tks
proper Money of this Realm , or
the Money of any other Realm
C i made
2o l^iglj gteafim«
made current by Proclamation, their Counfellors, Confenters and Aiders within neither of the former , but made Treafon by the Stat. of 18 El. i. but without corruption of Blood, or lofs of Dower. ^ What his Money > This extended only to the proper Money of this Realm : But now, i Ma. c. 6. Forging or Counter- feiting Money made current by Proclamation , is High Treafon. 14 El. c. 3. Forging of Foreign Coin , not current here ; Mifprifion of Treafon in the Forgers , their Aiders and Abettors. And Note , The tare forging of the King's Coin, without uttering, is Treafon. 6H.J.
Mes uttering de faux Money fait
deins le Realm fciant ceo deftre fals eft
folment Mifprifion de Treafon, 3 H. 7.
19. Ijfint Receiving , Aiding, &c.
ceftuy que ad counterfeit % Dyer 296.
Note,
&ig!) £teafom 21
Nota, Eft grand Mifprifton , mes nemy Mifprijion de Treafon , @ ijjint refolve 166 1.
2. The fecond offence concerning Money declared Treafon, is, if any Perfbn hinging into the Realm coun- terfeit Money.
1. It muft be Counterfeit.
2. Counterfeit to the fimilitude of Englijb Money.
3 . Brought from a Foreign Realm, and therefore not homlreland barely.
4. Brought knowingly.
5". Brought in, and not barely ut- tered here: But if falfe or dipt Money be found in his hands , by the Statute De Monet a, if he be fuf picious , he may be arretted till he have found his Warranr.
6. He mufl merchandize there- with, or make payment thereof.
Certain High Treafon made by fubfe- quent Statutes in force.
$ El c. 1. Refufing Oath of Su- premacy upon the fecond tender, Treafon,without corruption of Blood. C3 Ex,
22 tyigfo&mfon*
Extolling power of Bifhopof Rome Premunire, 1 3 El.z* c, 2. Bringing in Bulls, or putting in execution, or re- conciling to the See of Rome thereby, Treafon.
Bringing in Agnus Dei,&c. Premu- nire, 1 El.c. 1. Vide DyerzSz.
§.23 EL c. 1. Abfolving Subje&s from Obedience, or reconciling them to Obedience of Rome : Treafon in Reconciler and Reconciled.
§. 27 El. z. Prieft coming into the Realm, not fubmitting in two days, Treafon. The like for Englijb it\ foreign Seminaries.
Tetit
23
Tetit Treafon.
IS confined by Stat. 25 E. 3. to three Particulars :
1. Where a Servant kills his Ma- tter.
This extends to fbme other Ca- fes:
1. Servant kills his Miftrefs.
2. Servant kills his Matter's
Wife. 3* Where a Servant, upon Malice taken during his Service, kills his Matter af- ter departure from his Ser- vice.
2. Wife killing her Husband.
If the Wife and a Stranger kill the Husband$ petit Treafon in the Wife, Murther in the Stranger.
If the Wife or Servant procure a Stranger to kill her Huf- band or Matter, the Procu- rer Acceflary only to Mur- C 4 ther:
24 Pttit £reafom
der: But if flie procure a Servant to do it, Treafon in both. 3. Ecclefiaftkal Perfon, Secular or Regular, kills Superiour.
Note, Aiders and Abetters, and Procurers to Petit Treafon are with- in this Ad. v c p< 20 This A& not taken by Equity.
cromi8. Yet Son kills Father or Mother,
D^cpr.H. jt js petjt Treafon, receiving Meats,
5 Car. Bod- ~ • , fT7 &
dm®*** cafe. Drink, or Wages.
The Judgment in Petit Treafon, for a Man to be hang'd and drawn. Crom.i3. A Woman to be burnt.
Whatfoever will make a Man guilty or principal in Murther, will make a Man guilty or principal in Petit Treafon. Dai.i p 1. But if the Servant kill the Matter
upon a fudden falling out, this is not Petit Treafon, but Manflaugh- ter. If the Servant or Wife be of Recife. Confederacy to kill the Husband or Matter , and be in the fame Houfe, though not in the fame Room, they are principals and guil- ty
petit £?eafom 25
ty of Petit Treafon , for it is a pre- knee.
Servant tue Mr. per procurement le Feme abfent: II eft Petit Treafon in Servant J§ Accejfory al Petit Trea- fon in Feme. 2. Si Eftr. fait ceo per procurement Feme ou Servant: eft Murder in V Eftr. & Acceffory al Murder in Feme ou Servant. ^.Si Eftr. fait ceo per procurement (§ in prefence de Feme ou Servant ; eft Pet. Treafon in Feme ou Servant , © Murder in ly Eftr\ Dy. 1 28,2 54,3 3 z.
Of
%6
Of Felonies : And, i . Of Felonies of the T>eath
of a Man,
THus far of High and Petit Treafen.
Now for Felonies, they are either : by Common Law , or by Statute.
Felonies by Common Law : And they are of four kinds:
i . Such as are committed againft the Life.
2,. Such as are againft the Goods of a Man.
j. Such as are againft the Habita- tion of a Man.
4. Such as are againft the Protecti- on of Publick Juftice.
Felonies committed againft the Life, of two Natures.
1. That which is. committed a- gainft his own Life, Felo defe.
x. Committed againft anothers Life:
1. Involuntary.
i.Per
felonies* 27
i. Per infortunium , and therein of Deodands.
%. Per neceffttatew* In defence of Juftice. In defence of felf.
x. Voluntary, without Malice. With Malice.
Felo
28
Felo T>e Se.
i. T^He Ferfon.
JL i. As in other Felonies , fo in tlfis , the Pcrfon that commits it mud be of age of difcretion,and Compos mentis ; other- wife no Forfeiture : Therefore if a Lunatick, during his Lunacy, a Man diftradt by force of Difeafe, or Non com- pos, kill himfelf, no Fe- lony. i. As in other Felonies, the* death muft enfue within a year and a day after the ftroke,&c. 2. The Aft may be voluntary.
Involuntary in fome cafes.
vLV6' If A' a(rault K and *• fallinS down with his Rnife drawn , A. in
purfuit to kill,5.by hafte falleth up- on the Knife, A. is Felo de fe, and fprfeits his Goods.
But
But if B. were ftanding in his De- CJ-Cw* fence with hisKnife drawn, A. runs upon the Weapon and kills himfelf, A. is not Felo defe. r. The Convittion. i. If the Body can be feen,then the Convi&ion before Co- roner , fuper vifum Corporis, and not traverfable. 2, If not feen, then before the c.p.c $*, Juftices of the Peace, and then traverfable by the Executor or Adminiftra- toc In the fame manner , if enquired n B. R. in the fame County , tra- verfable. 4. The Forfeiture r
1. When > By the Conviction.
2. How relating ? To the ftroke. Therefore, Villain gives himfelf a
nortal ftroke; Lord feifeth Goods ; Villain dies ; King fhall have them.
3. Of what ?
Joint things intire , all forfeited, cp.c .^. jnlefs in cafe of Merchants.
Joint things feverable, Moiety forfeit.
But
30 #eio SDe &>t*
But Joint Chattels in Husband and Wife, all Forfeit for this Offence of Husband.
Chance
31
Chancemedley*
FElony for the death of another, either involuntary , or volun- tary.
Involuntary per infortunium;
Ex neceffitate. Involuntary per infortunium* Chancemedley , where a Man do- ing a lawful ad: , without intent of hurt to another, and death cafually enfues :
As, fliooting at Rovers, or at a Bird , or hewing a Tree , and the Hatchet-head flics off
A School Matter in reafbnablecr. it, manner beating a Scholar, or Father his Son, or Mailer his Servant.
Doing a lawful thing that may breed danger , and giving warning ; Jufting by command of the Prince.
But if the AcSt be unlawful, then death enfuing, Manflaughter or Mur- ther ♦
Shooting at a Deer in anothersc.p.c.5^ Park , the Arrow glanceth and kil- led* a ftander by , Manflaughter.
Throw-
32 CtjantemeDlep*
Throwing (tones, or fliooting in
the Highway, and death enfin'ng,
Manflaughter. cp.c. 57. But if a Man, knowing People
paffing by in the Street , throw a
(tone over the Wall, Murther. Daic,c.$$; Playing at Hand-fword , without
command of the King, death enfti*
ing, Manflaughter.
So that an unlawful a<9r, without
an ill intent , Manflaughter ; with
an ill intent, Murther. §f.P45.c.i* And this caufeth forfeiture of
Goods ; but a Pardon of Courfe
upon the Special Matter found.
T)eodand.
33
Dtodand.
BUt there is a Death per infor- tunium, without the default or procurement of another: Fall from a Tree, or by a Horfe or Cart; and there the thing that occafions tlie death is Forfeited and Deodand ; Wherein considerable,
i. What Forfeited as a Deo- dand. i. If a Man fall from a Cart* orc,FC;s, from a Ship in Frefli water, it is a Deodand • Otherwife in Salt Wa- ter.
z. If an Infant under fourteen be llain by fall from a Cart, Horfe or Mill , no Deodand ; but if flam by a Horfe 5 Ox, or Bull , then a - Deodand.
3. If a man kill another with any Dait.inft Sword; a Deodand, c.^
2. When Forfeited , viz. When found by Inquifition , Dait.c.^?- therefore the Jury ought to find D the
34 DeoOano*
the price ; and this is before Coro: tier.
y The Relation of the Forfeiture is to the ftroke.
Homicide,
35
Homicide ex Neceffitate.
THis of feveral forts : r. In reference to Juftice. 2. In defence of his Perfon, Houfe, Goods.
Homicide ex neceffitate. S. i. In reference to Juftice , of feveral kinds :
i. In execution of Juftice. 2. In advancement of Juftice. Homicide in execution of Juftice requires certain Prefcripts.
i. That the Judgment be given by one that hath Jurifdi&ion in the Caufe.
If a Juftice of Peace give Judg- Dal c$ft ment in Treafon , the Execution thereof Murther in Judge and Offi- cer.
But if he give Judgment of death in Trefpafs , Felony in the Judge, but not in the Officer that executes it.
2. That it be done by a lawful Officer. Therefore, if a Stranger of hisMt.^8, D % own
3 6 l^omicioe ejc Ji2eceffttate*
own head , or the Judge that gives the Judgment, Execute it, where it is to be done by the Sheriff, Felo- ny.
3. That it be done purfuant to the Judgment. c.c.4; Judgment to be hang'd, Sheriff
beheads him, Felony.
2. Homieide in advancement of Jufiice inCaufes,
Criminal.
Civil.
1. In Caufes Criminal. Dak.c $j. If a Sheriff or Bailiff, having war-
rant to arreft a Perfon indi&ed of Felony,and he will not obey,or fuffer himfelf to be arretted , the Bailiff kills him, no Felony. Cra fo.27. The fame, if any Perfon that pur*
fues upon Hue and Cry, or otherwife to arreft a Felon that flies.
If a Felon arretted break away from his Conductors to Gaol, they may kill him, if they cannot other- wife take him,
But
C.PC22-:
l^ottiictDe ejc jleceflTttate* 3 7
But in this latter Cafe there muft be a Felony done.
If a Prifbner aflaults his Gaoler, and he kill the Prifbner, no Felony.
Rioters, or Forcible Enterers or Deteinors, (landing in oppofition to the Juftice's lawful Warrant , and one of them flain, no Felony.
Keeper or Parker may kill Hunt- C10.ro.2s, ers, if they fly or defend them- felves. .
C&fon *in Vcz se Dtt, m Combatant in 8ppe!e 3 excufe in
killing the other.
2, In Civil Caufes.
Though Sheriff cannot killamancPi.c.5^ who flies from the execution of a Civil Procefi , yet if he refill the arreft , the Sheriff or his Officer need not give back , but may kill the Aflailant,
§. So if in the arreft and fjjiving together, the Officer kill him , no Felony.
D 3 Now
3 g ^omttiDe tjc JteceOttate*
Now touching al! the former Ho* middles, thefe things obfervabk:
i. There muft be no Malice coloured under pretence of necefiity ; for if it be, ic altera uheCafe, and makes it Murther*
2. The Party that did the Fad muft be arraigned , and upon Not Guilty pleaded , the Special Matter muft be found.
3. Upon this Special Matter thus found, the party is to be difinift without any forfeiture or pardon purchafed.
%- Thy§
lootntriDe ejc ^eceOTitate^ 3?
2. r i^Husof Homicide *x *w*$r- J| /*/*, in reference to Publick Jufticc: Others there are that are ' grounded upon Private ^ Inter eft 9 and they of two kinds:
1. Juftifiahle, and confequently inducing no forfeiture at all , nor needing pardon.
x. ExcafaBle, and yet inducing a forfeiture.
1. Juftifiaile, and inducing no forfeiture , where a Perfon comes to commit a known Felony.
1. If a man cometoburnmyMric^j. Houfe, and I Ihoot out of my Houfe , or iflue out of my Houfe and kill him, no Felony. x. If a Woman kill him that aflauketh to Ravilh her , no Felony. 3. If Thieves aflault me in the „ ' u # High- way, or in my Houfe to rob me , and I, or my Servant kill them,no Felony nor forfeiture.
But
40 l^omtcioe ep jpeceflRtate^
But if the Aflault in my Houfe were not to rob me, But to beat me, &c. there Would be only fe defendendo , and Goods forfeited, and a Par- don of courle to be granted, becaufe ( they ) came not to commit a known Felo- ny ; for it cannot be judged whether he meant to kill me. Mt.c.p8. If one come to enter into my
Houfe, claiming Title ', and I kill him, Manflaughter.
If A. enter wrongfully into the Crom.24. Houfe of B. riotoufly and forceably, B. and others endeavour to fire the Houfe, Skills, Manflaughter.
Sf
4*
Se defendendo.
i-ne Li]
Omicide Excufahle Se defen- dendo , which though it fave Life,yet the Goods are forfeited ; :j:his requires thefe things : ' i.It mud be an inevitable neceffity. c?^f.s €* In cafe of a juftifiable Homicide, ts of a Thief that comes to rob me, >r by an Officer refilled in Executing in Arfeft, the Party need not give )ack to the Wall.
But in this Homicide Se defender CFC 57. fo, the Party that is aflaulted not xcufed, unlefs he give back to the Wall.
But if the Afiault be fo fierce,and e PC *;v n fuch a place that giving back ivould endanger his Life, then he jeed not give back.
A man fights, and falls to thcvuitc.^ ground, then flying not neceflary* x. It muft be in his defence. If A. be aflaulted by B> and be-CPC ^ ore a mortal Wound given, A gives sack till he come to the Wall , and
then
4* &* DefenDenDcu
then in his defence kill Br this iij Se defendendo.
But if the Mortal wound firfl
given, then Manflaughter.
Btit. c$t.. K A* uPon Malice prapenfe flriki
Crom.i<j. /?. and then fly to the 'Wall , and
there in his own defence kills B
this is Murther.
But if there be Malice between A. and B. and A. (hike firfl: , B retreats to the Wall, and in his owr defence kills ^.this is Se defendendo Crafci*. If Malice be betwixt A. and B
and A. aflaults B. B. retreats to th< Wall, and then kills A. in his owr defence ; if it be in the High wa) he ihall be difcharged , but if not yet it is Se defendendo. Copflon\ Cafe.
Murther,
43
Murther.
rHus far of Homicide Involute cary.
Homicide Voluntary is either:
Ex malitia pracogitata, which is
urther.
Sine walitia, Manslaughter.
Murther is, when a perfbn kiljeth
other of malice within any County
England, fo he dye within a year
d a day.
:. Whofhall be (aid a perfon'tilling ?
A Man that is No* compos kills pait,
other, this is no Felony.
$. The fame for a Lunatick,during Is Lunacy. ] But he that incites a Madman to
11 another, is a principal Mur- icrer.
A man drunk killeth another, this
Felony.
An Infant within age of difcretioa ils a maq, no Felony ; as if he be
or i© years old.
But if by circumftances it appear-
44 ^uttfjer*
eth he could diftinguifh betwee Cr©m.27« Good and Evil, it is Felony: As he hide the dead , make excufe &c.
stfi(:.c9. ^Ut in ^uc^ ca^s> Execution!
prudence refpited to obtain a Pai don.
2. What faid Malice >
It is either implied or exprefled.
Implied Malice is collected eitlu from the manner of doing, or fror the perfon flain , or from the perfe killing.
i . Malice implied in the mannt
of doing.
C.PC.5Z. Poyfoning wilfully any man, in
plies malice. Daitcpj, If a man do an adt that apparen
ly muft introduce harm , and deat enfue ; as to run among a multitud with a Horfe ufed to ftrike.
But Note, That if it were with a intention to do harm , then Mui ther ; if without fuch intention,Mar flaughter.
The like of throwing a Ston over a Houfe among many People the intention of doing harm make
it
Murther; want of fuch intention, lanflaughter , becaufe the ad: un- wful.
For an intention of evil, though Dt againft a particular perfon,makes malice.
Killing any perfon without provo- tion, Murther.
A. comes to rob B. B. refills and tikes, skills him,Murther.
A. Diftorts his mouth and laughs M.4243 el
B. who thereupon kills him, Mur- ^^scafc- let.
x. Malice implied in refpeft of the yrfon killed.
If a Watchman or Conftable , or 4 R, Haml ly that comes in his affiftancc,doing cafe, romg\ leir Office, be killed, it is Murther, cafe* lough the Killer knew him not to be ich.
If any Magiftrate or Minifter of aftice, having a lawful Warrant, be illed,doing his Office, it is Murther : is where a Serjeant comes to Ar-
-ft,
1. Though in the Night.
2. Though on Sunday.
3. Though upon the Arreit
he
. 4* QpUtfytt.
be ftew not out of wh Court, or whofe Suit. lltt * Though the Proccs Err
neous.
y. Though he fliew not h
Warrant or Mace, where it
nor demanded.
But if the OiEcer do what is n<
warrantable,as break open a Windo
to Arreft, there though flain, Ma
flaughter only. Pajck i$Car* Cool
Cafe.
Malefa&ors come into a Pari the Packer fhoots , they fly, he pi lues, they kill him, Murther in al for their firft entry was with Malicious intent. Mich, i iJacZtfm Cafe.
3. Malice implied inrefpeft of t perfon kitting,
A. aflaulcs fi.to robhimf ^.refifl A. kills him, Murther.
Prifoner by Durefs of the Gaol comes to an untimely end, Mu ther.
Executing Martial Law in time Peace, Murther.
2»Mali<
x. Malice Exprefs confiderable, i. In the Principal in the firft
degree, that doth the a<5t a. In the Principal in the fe- cond degree , that is prefent and aiding, or abetting. 3. In the Acceflbry before the Fad*. I. In the Principal in the firft
degree. 1. If a perfon have no particular tfalice againfl; any Special perfon , >ut comes with a general resolution gainft all Oppofers , if the a<3: be nlawful , and death enfue , it is further: As if it be to commit Crom 20. Riot , to enter into a Park ; Lord ^acre's Cafe.
x. If there be Malice between A* nd B. and they meet and fight ipon that Malice , though A. gives irft blow , yet if B. kill him , it is Crom.ti. further.
If there be Malice between A and 1 3. and ^.aflaulc B. and after ^.flies |:o the Wall, and there in his own ilefence kill B. by fome this is Mur- :her; but Qs&re.
M
4§ sputti;ei%
If there be quarrel between and B and A, challenge B. B .decline: it ; but at length upon Importunity and to vindicate his Reputation meets and fights , and kills A. thi, is MurtHer* Fafch. iqjac. Taverner Cafe.
If ^.and i?.fali out upon a fudden and they prefently agree to fight and each fetch a Weapon and g< into the Field, and one kills the othei cpc. 55, S7. this is only Manflaughter , becaul the Blood never cooled : but othei wife if they appoint to fight th next day.
Laurence cafe. A' atld B' M 0Ut' A' fii^ he WJ
5 8 £/. not ftrike, but will give B. a pot c
Ale to touch him, £.ftrikes, J.kill him, Murther.
If A. and B. are in Malice, and ^ challenge the Field, and B. refufe t meet , but he faith he fhall go t< morrow to fuch a Town , A. meet him, aflauks him, and B. kills hirc Manflaughter, and no Murther.
Raw!/* cafe. of B who runs home to his Fathei and he runs three quarters of a mile
beats!
beats the other Child, and he dies ; Manflaughter.
3. If Malice be not continuing till the death, no Murther.
A. and B, combat upon Malice, com. a r. and are parted, and after they meet and combat upon the fudden , and one kills the other ; by fome not Murther, becaufe the firft Malice fatisfied.
If the party killed had wounded at the firft combat the party flaying, Quaere.
A. and B. are at Malice , and re- conciled , and after upon a new Occafion fall out and kill , no Mur- ther.
4. Though the Malice did not rife fo high as death , but intended only to beat the party ; yet if malicious, it is Murther if death enfue.
A Keeper of BJierly Park finds a Boy ftealing Wood , bound him to his Horfe tail and beat him , the Horfe ran away , kill'd the Child, Murther ; for it was a deliberate a<3:, Mich^Car.B.R Ho/Uway$Cafc.
E j.The
5o sputtijer*
f. The malice intended to one, egreditur perfonam , and makes the death of another upon that malice, Murcher, and qualifies the adt in the fame manner, as if it had had its due efFed:. Dy.128. A. having malice at B. ftrikes at
him, and mifleth , and kills C. this is Murther in A. and if it had been without malice pr&pe «/£,Manflaugh- ter. Crom.101: A having malice to B. aflaults
EH/s cafe. him,and kills the Servant of B. this
is Murther in A. s> Rep-Go^'s A. lays poifon to kill B. and C\ cafe* at mifadventure takes it, and dies;
Murther in A. Contrary, if it had been laid to kill Rats ; then infortu- nium.
A. and B. combat upon malice, C. comes to part them, A. kills C. this is Murcher, and per afcuns, Murther in both; and if the falling out were fudden, then only Manflaughter in him that kill'd him. Vide Dyer 128. 20 E.3,Corone%6z.
6. The malice muft be of Corporal damage to the party.
2.Prin-
II. Principals in fecond degree, that are aiding and abetting. i. If two or more come together Sc,pc,c^° to kill, rob, or beat a man, or to commit a Riot,and one of them kills i man , this is Murther in ail them :>f that party that are prefent, aiding )r abetting him thereunto , or that vere ready to aid him 3 though but ookers on : Qtherwife , if he came :here by chance.
%. All are faid tobeprefent that^H.g.s. re* in the fame Houfe , though in^ron -^2- nother Room, or in the fame Park,^J^'care> lough half a mile diftant, and out^om.19. f view ; therefore if they came .toDalt-c^3i Dmmit a Felony, fuch perfons aid- \g or abetting (hall be laid pre- :nt.
3. A. and B. fall out, arid appoint D'aitc^j. le Field; Stakes C. his Second, D'* lzS* I takes D. his Second; A. kills B,
lis is douklefs Marcher in C. and hath been held Murther in £>.alfd, )r it is a Compad: : But ic feems therwife.
4. If A. and B having malice "#penfesm£Gt and fight, and 6. the
E % Sep-
52 sputtfjer*
Servant of A. not acquainted there- Crom.ioo. ^^ ^ take part ^^ j his Matter,
and kill B this is Murther in A. but only Manflaughter in C.
The fame l&w if C. came in fud denly, and took part with A. and kill a B. Vide Sir Ferdinando Cary\ Cafe, x<\Jac.
Mes fi un vient la per chance , & riabette, riejl principal, nee accejfon al Manflaughter ou Murther , Stamf
3. What Malice in the Accejfor before the Fad.
A. commands S. to kill C. with a Gun, he kills him with a Sword A. is acceflbry to this Murther becaufe the killing was the fut ftance.
But if he command B. to kill C and he by miflake kill D. this i Murther in B. but ^4-is not acceflbr; 1 thereunto.
A. commands B. to beat C. wh beats him, whereof he dies , this i Murther in j5. and A. is acceflbry becaufe death enfiies upon the ac! commanded.
4.Wha
4. What Killing >
Ptifbn , Weapon , Gun , Bow , Crufhing , Bruifing , Smothering , Strangling , Famifhing , inciting Dogs.
§. Laying a Sick man in the cold.
Laying an Infant in an Orchard under Leaves, and he ftricken with a Kite.
A man keeps a Beaft u(ed toStDaU'3 ftrike knowingly ,and ties it not up, the Beaft kills a Man , Felony by fome , by others not , but a great Mifdemeanour^ZT. yCor-i 1 r. 5*. What the perfon killed >
It muft be a perfon in rerun* natura.
If a Woman quick with Child take a Potion to kill it, and accord- ingly it is deftroyed without being born alive, a great Mifprifion , but no Felony ; but if born alive, and after dies of that Potion, it is Mur- ther.
The like, if it dies of a ftroke given by another in like manner.
§. Counfel before the birth t0C.Pc.c7. dettroy it, and after the Child te"£-»
• *,. ■ rot frs.
E 3 born
contra.
54 ^mfytt.
IbitL born deftroyed accordingly , the Counfellor is Acceflbry.
6. What a place within the Realm > CPCc.7. Stroke and death in partilus tranf-
marinis not punifhable at Common Law, but before the Gonflable and Marftial.
Stroke and death upon the Sea jnquirable before the Admiral , or according to the Stat, of 28 H. 8. c.13. But Stroke upon the Sea,and death within the Body of the Coun- ty,not punilhable at all.
H the Stroke in one County, and the death in another, the party ihall be indided where the death hap- ned.
An Acceflbry in the County of A. to a Felony committed in the Coun- ty of B. the Acceflbry after Certifi- cate of the Convi&ion and Attain- der of the Principal , may be Ar- raigned upon an Indi&ment in the County of A. where he was Accef- fory. Stat.zE>6. c. 24. Vid. For mam Procerus inde in B. R. C.PC. cap 7. pyer&urfs Cafe.
7.The
7. The party muft die within the Tear and the Day pi that Stroke, or ; Poifon,&c.
E 4, Mam
5*
Manflaughter.
K
ILL1 N G another upon a fudden falling our , or pro- vocation, or unjuftifiable a& , Man- flaughter.
i . What a fudden falling out > C PC c.8. ^wo combat and part, and pa- tently come together and fight, or one prefently fetcheth a Weapon and killeth the other , or they pre- fently fetch their Weapons , and go into the field, and one kills the other, Manilaqghter. '. Divers Rioters enter into anothers Houfe forcibly ,and ejedt the People ; afterwards they being in pofleffion, the party ejeded, with twenty more, come in the Night to the Houfe; endeavour to fire it, and one within flioots and kills one of the aflai* lants ; ruled to be Manflaughter , becaufe their entry and holding with force illegal ; and not Murther, be- e$ufe a (udden provocation.
spanflaugljte^ 57
So A, claims Title to the houfe of B. A. attempts to enter and fhoots at the houfe; fi.fhoots out and kills A. adjudged Manflaughter.
Two fall out and fight , and one Mt.c.94. breaks his Sword ; a Stranger (land- ing by fends him another , and he kills therewith , Manflaughter in both.
%. What zfuAden provocation ? Two ftrivefor the Wall, and one (kills the other, Manflaughter.
3. What unlawful ail, whereupbn Death enfuing will make Man- flaughter ?
If the unlawful ad be deliberate, and tend to the perfonal hurt of any immediately, or by way of neceflby :on(equence, death enfuing, is Mur- :her. But if either fuch deliberation or 1 intent of perfonal hurt be wanting, Manflaughter.
Two play at Foils , and one kills the other, Manflaughter. Sir John fhkhefter's Cafe, x 1 H.7. 1$. Vide Kell. 108, 136. Wrajling, (Sun tut autre. ' :*
A,
spanflaugitfer*
A man throws a Stone at another, which glanceth and killeth another, Manflaughter ; and not Murther , becaufe no malicious intent to hurt; not per infortunium , becaufe doing an unlawful a6h
There is a particular Manflaugh- ter, wherein Clergy is ouft , by the Stat, i Jac.c. 8. wherein,
i. He that is oufted of Clergy by that Statute, muft be efpecially in- dicted purfuant to the Statute.
z. It extends to him that actually gave the Stroke , not to thofe that are prefent.
3 .Need not conclude contra formam Statuti.
4. Although the » Indictment be Special upon the Statute tyet the Jury may find general Manflaughter. Hill. z 3 Car. BR. Pages Cafe.
A.Newgat.rep. 16 Car. z. A man whips his Horfe in the Street to make him run fpeedily, and the Horfe runs over a Child, and kills him ; Man- flaughter: But another whips the Horfe, whereby he fprings out , and runs over a Child , and kills him ;
per
spanflaugfttet:* $?
per infortunium. Nota , Indiclment de Murther per ceo que eft per infor- tun furnon culp* pled* Jury poet trover luy non cultf fi foit Coroners Inqueft, jue trove ceo per misfortune @ le party :onujiceo. PtQttycsCafe.
harcenj.
€o
Larceny.
TXTE come to Offences Capital,!
VV which refer to the Goods of |
any Perfon, viz. Larceny , which is
of two kinds :
Simple Larceny,
Mixt and complexed Larceny
Simple Larceny of two kinds : Grand Larceny , of the value o li pence. Petit Larceny, under that value.
Simple Larceny , a felonious an< fraudulent taking away by an] perfon of the meer perfonal Good of another, not from the perfoa, no out of his houfe , to the value c xx pence.
LWha
I. What (hall be faid a Felonious taking e Imports two things :
i. A Taking neceflary ; the In- dictment muft be Cepit; if it be felonice Abduxit Equum , not fuffici- ent.
If a perfbn find Goods loft , and €.Pc convert them , though the Conver- fion were animo furandi ; yet no Felony.
If a man hath a bare charge of Goods, Felony may be by him com* mitted : As a Butler that hath charge ofPlate,Shepherdof Sheep; the like of him that hath a bare fpecial ufe, as the Gueft that hath Plate fef before him.
But he that hath a pojfeffwn by delivery , cannot thereof commie Felony,
A Carrier hath Goods delivered to him, and he carries them away , no Felony.
A. lendeth his Horfe to a Stranger, who rides away, no Felony.
A Clothier delivers Yarn to a
Weaver
62 &atcenp*
Weaver to weave,he carries it away* or imbezels it, no Felony.
But this hath two Exceptions :
i. If the Privity be determined, then it may be Felony. . A. delivers a Pack or a Tun of
Wine to a Carrier, he opens it, and take out Goods or Wine , animo furandi, Felony.
So if A. deliver Goods to B. to carry to a certain place, he carries it to the place appointed , and after takes it animo furandi, Felony.
2. By- Stat. z i fl.S.c. 7. whereby if a Servant goes away with the Goods of his Matter , delivered to him above the value of 40 fhillings ; herein,
1. Extends not to Apprentice, nor Servants within eigh- teen years.
2. Requires a Delivery. cPGc.44. tf one Servant deliver the Dak.c.io2. Goods to the other, this is
delivery by Mailer.
If
If the Matter deliver an Obit gation, or deliver Cartel to (ell, and the Servant receive the money and depart with it, it is no Felony : The like if he had gone away with the Obligation.
3. He mult go away with it. Waitfully confuming, &c. thereof,
0 Felony.
4. Now by the Stat, of 1 E. 6. c. 12. he may have his Cler- gy-
5. He muft be a Servant at the
time of the delivery , and going away ; Therefore for imbezelling after Mailer's death, Stat.$$ H.6c. 1. gives remedy.
6. If a Servant receive his Mailer's Rents, and go away with them , not within the Statute.
If a man , feeing a Horfe in the c.pc.57. allure of the Ownerjiaving a mind >fteal him, obtains a Replevin, and lereby hath the Her (e delivered, lis is a Felonious taking.
If
^4 ILamny.
If A. felonioufly take myHorfe Crom.34. and B. felonioufly takes him fron . him, B. maybe appealed or indi&ec as of a felonious taking from me I
S. Stati 3 H.8.c.i. Falfe token.
Vn prift feme de I. S. ovefes bien count re le volunt, eft Felony: Contr Ji feme prift les hiens le haron £§ at ove eftr de fa lone volunt. 13 A(T. ( Jffintfifeme covert prift liens le I arm ou eux dona al eftr que eux impor neH Felony. Abridg.Afftfj.
II. What a Carrying away ?
cpc.c.47. A Gueft takes Sheets out of tl Bed; brings them into the Hall wii an intent to carry them away , bi is apprehended before this ; a Ca rying away.
A. takes the Horfe of B. with 2 intent to Heal him , but is appr hended before he can get out of tl Pafture ; this Taking away.
A. kills my Sheep , ftrips then carries away their Skins, Felony ; i if he pull off their Wool.
Grom,n»
HI. J
2Urcenp* £5
III. By tohom? and who fuch a perfon , as may commit Larceny. ^
An Infant under Fourteen years Mmo* may commit Larceny ; but prudence to refpit Judgment ; yet one under Fourteen burnt in the Hand. .Prefi- dents,
A Feme covert by her own Syt: may commit Larceny , and in fuch cafe the Husband may be Acceflbry to the Wife in receiving her ; but not } converfo.
But (he cannot felonioufly take her Husband's Goods ; and though fte fo take her Husband's Goods,and deliver them to a Stranger , yet no felony in the Stranger.
If Husband and Wife do both aDak.104. 7elony, this is Felony in both, and 30th arraigned for it.
No ta, Books old and latter, and ^radtife, contra.
If the Wife commits Murther by
oercion of her Husband , Murther
n both ; but if theft , no Felony in
F her;
66 lUrtenp*
tier; but a bare Command excufetH her not.
But if a Sernknt commit Theft by ^ercion of his Matter, yet it is Fe- lony.
IV . What meer per fond Goods ?
Daie.c.47. * ^ t^iey are in ^ ^ea^y 1 or
annexed thereunto, no Larceny : As Corn or Grafs growing , Apples on Trees.
§. Stealing a Cheft of Charters, no Felony, though the Cheft above value.
Taking Lead off a Church no Felony: Otherwife if he leave it a while, and after come and take it.
Taking an Infant Ward , no Fe- lony.
x. If they are of a bafe Nature, as Maftiffs , Dogs , Bears , Foxes i Monkeys, Ferrets, or their Whelps, there can be no Felony of them ; but of Hawks reclaimed Felony may be,
V.Whafc
&areenj\ 6j
V. What faid the Goods of another.
i.Hetbat hath a Special property* as a Bailiflv &c. they are his goods bro tempore. A. bails Goods to B. and after to the intent to charge B. deals them from him , Felony in At ii ft. 7. Kel 70. Cloth in maities roylor.
, z. He that takes the Goods of a mi 163, Chapel in time of Vacation, indicft- bk qxare bona Cape Ua3\ fobonaPd- ochianorum , botia mortut , ot bona Xnoti&c.
So tofteal the Shroud of a Perfon gpc.<?.4/, juried; anditftiall be bona Executo- \nm. Vii. Tamen contra ; 15- jfoc. \Tottittgha*ris Cafe.
But taking of Treafure trove, /recks, Waifs and Strays before lifure, no Felony.
Taking an Obligation Felony 4 hcaufe in aftion.
I Taking Fifli in a River no Felony ;
litFilh in a Net, Trunk, of Pond*
Hony, becaufenot at their natural
F % liberty:
201.
68 ftarrenp*
liberty : So of old Pigeons out of the Houfe.
Where a man hath a Property only ratione loci , or privilegii , in things fertz mturfi, as Coneys or Deer in my Ground, Park or Warren, no Felony. Mesjiint conur But if reduced to tamenefs, and jam d'ejire fit for f0od,as Deer s, Coney s,Cr a nes,
time, neji F, p^;^ pheafan^ fc that ft^J^
v.Mag.chart. them, knowing them tame, commk- teth Felony.
So of Swans marked and pinio- ned, or Swans unmarked if tame, kept in a Mote , Pond , or private River.
Where a man hath a Property ratione impotentia: in things wild by Nature, as young Hawks in the Nell, young Pigeons in the Neft, Felony thereof.
Taking of Eggs of Hawk or Swap out of the Ground of another, no felony, but punifhable by Sta- tute.
But taking any thing domittc na- turals Duck, Hen, Geefe, Turkeys Peacoks , or their Eggs ; or Do-
meflick
JUrcenp* 69
meftick Beads , as Horfes , Marcs, Colts,&c. or their young, Felony.
VI. Where this fhall be faid a Felonious taking.
If A> fteal Goods in the County Crom.34. of B, and carry them into the Coun- v- + Ht 7#f ' tyof C. he may be appealed or in- dicted in the County of C. for Lar- ceny, but can be indicted of Rob- bery only in the County of B. Only in the former Cafe the Stan of 15: 77.8. c.i* oufts them of their Clergy, if they were not to have had Clergy if arraigned in the County of B. where the Robbery commit* ted.
Si.Gusfi prijl Sheets hors de left felonzoujly, & eux import in hale, & la fur fear de purfuit relin^uijh euxt Felony. 27 Aft39.
VII. Of the value of Twelve pence, or above.
1. Nota, That in cafe of Grand wedm. i.e. i*. Larceny it muft be above the value 2 ' Jacc*5* F 3 of
7q ftarcetip*
of Twelve pence ; and if it be but of
the value of Twelve pence,or under,
it is Petit Larceny.
z. If two (leal Goods to the value
of Thirteen pence , this is Grand
Larceny in both. &aU.iei. 3- M" one perfon at feyeral times,
crom. $6. at one time fteal Four pence, at ano- &?& c. a4. ^j. s!X pence . aj another Three
pence, in all amounting to above Twelve pence,from the fame perfon, all thefe put together in one Indi<9t- ment, amount to Grand Larceny'; and Judgment of Death.
4-If a man be Indicated of dealing Goods £o the value of Ten fliillings, and the Jurors find Specially, a$ they may, the value but Ten pence, 3tis but Petit Larceny, and no Judg- ment of Death.
And Note, Petit Larceny i$ Felo- ny, though not of Death ; and for this he ihall forfeit Goods , arid be iilbjecSb to Whipping , or other Cor- poral puniihment. Ijfint fi fugam fee.it fur$ htens. Coron.ic^.
Rphhery..
7*
Robbery.
Complicated or mixt Larceny, which hath a farther degree of guilt in it.
i. For that it is a Taking from the Perfon.
2. For that it is a Taking out of theHoule.
i. Taking from the Perfon.
i. Where the Perfbn is put in fear, and then ns Robbery. 2. When not put in fear, and then 'tis Larceny from the Perfon. Robbery is a felonious and violent taking away from the perfon of ano- ther Mony or Goods to any value, putting him in fear.
i.Violent and putting him in fear ; the words of the IndkStmenc run, violenter & felonke, and rhat diftin- guiflies him from a Cut-purfe. 2. Taking away. i. An affault to rob without any taken, is no Felony.
F 4 If
72 BoUbetp*
If a Thief, with or without Wea- pon drawn, bid the party deliver his Purfe, and he doth it, this is a taking to make it Robbery.
Crom.31. If a Thief command to deliver
his Purfe, and he deliver , and the Thief finding little in it, deliver it back, this is Robbery.
G PCc 1 5 ' * a Thief compel the True man by fear to fwear, to fetch him a Sum of Mony,which he doth accordingly, and the Thief receives it, it is Rob- bery.
If the True man s Purfe be faftned to his Girdle,the Thief cuts theGir- dle,the Purfe falls to the Ground, no Robbery; but if the Thief take up thePurle, though he let it fall again, Robbery, though he never take it up more.
All that come in Company to rob. Principals, though one only a&ually do it
Cg0mtUt A.B. and C. afTaultD. to rob him
in ;he High way, but rob him not, jfor that he efcaped : A. rides from the reft, iri the fame High way , and robs K cm of view of the reft, and 4i '" ' ■ " • - came
JGUfflter?* 73
came back to the reft , and for this 8. and C. arraigned and hanged, though aflenred not, becaufe they ill came to the end to rob. Tudfeys 2a(e.
3. Taking from the Perfon.
If the True man,feeking to efcape, :afts his Purfe into a Bufli>or let fall lis Hat, it the Thief take it, Rob- bery.
Taking a thing in my prefence,is
ii Law a taking from the Perfon. If one take or drive my CattelDait.ciof; > ut of my Pafture in my prefence, 11s is Robbery ,if he make an aflauk ipon me, or put me in fear.
But if he take any thing from my paitibi* ierfon , without putting me in fear D7er 22*- jpaflault or violence, no Robbery; id the Indictment runs, That he •ok it from the Perfon violently and DaIt m :lonioufly, putting him m fear. 4. Of what value fbever. Though under Twelve pence. cpg c.i 6, ■] flier in fore in County in tie I cafe hit Larceny , car nejl Robbery la. a Jac. More\ Rep. Now though Robbery and Am- ple
74 J&oWbetp*
pie Larceny are both Capital , yet they differ in thefe Refpe&s :
i. The Principal and Acceflbry before are oufted of Clergy, but not in Simple Larceny.
§. Stat. 2 j H. 8. c. i. i E. 6. n z$ H. 8. 3. 4 & 5 Phil. © Ma. c.4 Nota, fpeaks of Robbery in or nea the High way.
x. In the form of the Indid
ment:
An Indidment of Robbery fuj pofeth an Aflault , beating an< wounding, and taking from the pei {onfelonke ; or at leaft aflault an putting in fear, felonice & violenh cepit a perfona : Other Indi<2ment< though of a taking from the perfoi yet not vlolenter.
3. In cafe of other Thefts, thoug from the perfon , not Felony c Death,unlefs it exceed Twelve peno But here it is Felony of Death never fo (mail.
Larcen)
75
Larceny from the Terfon.
Larceny from the Perfbn without putting in Fear ; which may be ither by picking the Pocket , or uttingthe Purfe, which isfuppofed :> be done clam & fecrete a per- ma.
In this Cafe by theStat.o{ 8 El.c.4. the Indi&ment purfue the Statute 9 hich is fecretly without the know- |dge of the party , clam & fecrete, h is oufted of his Clergy. I But if it be under value of Twelve c. pa c. *& ij mce, then it remains Petit Larceny, &«»•«**.
before ; for the Statute did not i:er the Offence , though it took a 1 ivilege.
I Larceny from the Perfon, which is f ither clam & fecrete a perfona, nor i th putting in Terror, nor fo laid in Mlndidment, nor fo found by the fry, Clergy. Dyerzz^. lyJac.Har- PrsCafe.
Larceny.
76
, Larceny from the Houfe.
LArceny receives another aggra* vation, when it is taken from the Habitation of a man. Per Stat. Robbing any perfbn in their
25H.8.C.I. dwelling. houfe, the Owner, his Wife, orGhilclren, or Servants being with- in, and put in fear, oufted of Clergy in cafe of Conviction, together with Acceflbries before, by Stat z$H. 8. c i.
Felonious taking of Goods to the value of Five ihillings out of any Dwelling- houfe or Out houfe , tho1 no perfon within, ouft of Clergy by 39 El.c.if.
Thefe have a Mark upon them as Larcenies complicated , and fb ouft of Clergy. Vide infra Clergy,
Piracy. .
n
^Piracy*
"X) this we may add PiracJ^nd I JL Depredation upon the Sea.
This at Common Law convicted, c.pcc4p. Petit Treafon , if done by a Sub-
But this alter'd by St at. x 5 Ed. y Since that Statute an Offence tri- ple by the Civil Law till 28 H. 8.
i *' The Stat. iSH.2. alters not the
J)fTence; but it remains only an
!j)fFence by the Civil Law : and there-
)re a pardon of Felonies doth not
ifchargek : but it gives a Trial by
le courle of Common Law :
1. It extends not to the AcceiTo-
es : But if the Acceflbry were at
sa, triable by the Civil Law ,• if at
and, by no Law: For Stat, z & $
'. 6. extends not to it.
a. It extends not to Offences in
Greeks or Ports within the Body of
County, becaufe punifhable by the
lommcn Law,
3. Though
3. Though it give forfeiture of JLife, Lands and Goods, yet no Cor- ruption of Blood.
4. Paine fort © Jure , in cafe of (landing Mute,
burglary.
19
'Burvlary.
X X7E come to the Offences VV again ft the dwelling or \tbitation ; and that of two kinds*: i. Burglary. 2. Arfbn, or Burning. Burglary by the Common Law is, here a perfon in the Nighttime eaketh and entreth into the Man- m-Houfe of another, to the intent commit forne Felony within the [lie, whether the Felonious intent t executed or not.
I. What fliall be faid in the Night *
By fome, after Sunfet and before Bnrifign it is Night. Dalt.c.99.
But it feems, that fo long as theepe u^ Countenance of a perfon may be qcerned, it is Day. Coron.xy^.
ITWhat
8o 36utgia*p<
II. What Breaking and En* tring I
The Entring into a Houfe by the Doors open, is a Breaking in Law but here not fuiEcient without ai adtual breaking: Therefore if tin Door be open, or Window be open and the Thief draw out Good thereby, no Burglary.
But if the Thief break the Win dow, draw the Latch , unlock th Door, break a Hole in the Wall thefe are Breaking.
And as there mud be a Breakinj fb there muft be an Entry :
Setting the Foot over the Thr< flioid:
$. Putting the Hand , or a Hooi or a Piftol within the Window , c Door:
Turning the Key where the Doc is locked on the infrde :
$. An Entry.
In fome cafes Burglary withou
a&ual Breaking.
Diver
ISurglatp* §i
Civets come to commit Burglary; and one does ic,thc reft watch at the Lanes end, Burglary in all.
A Thief goes down a Chimney to Crom.jo. rob, Burglaty.
ThkVes having an intent to rob, CPC ^ raife Hue and Cry , and bring the Conftable, to whom the Owner opens the Door,and when they come in, they bind the Conftable and rob the Owner, Burglary.
A Thief aflaults the Houfe , the Owner for fear throws out his Mony, lit feems not Burglary, but only Rob- bery.
A Thief gets in by the Doors Diit.s*. open in the day, lies there till night, hen robs and goes away, no Burg- ary : But if he break open the door o go out, Burglary,
The Servant opens the Window DaW//«?r* :o let in a Thief, who comes in and teals; Burglary in the Stranger, but |lobbery in the Servant.
If A. enter into the Hall by the oors open, the Owner retires to a Chamber, and there .^.breaks in, this a Breaking and Encrinij.
G If
82 HDurglatr,
If Thieves enter into an Houfe through a Hole made there before, no Burglary. «.rtf.. A. lies in one part of the Houfe,
Tnil. I o Jac. . -.■ m *
£^w^s cafe. B his Servant in another , between them a Stair-foot door latched , the Servant in the night draws the Latch, and enters his Matters Chamber tc Murther him, Burglary.
III. What Manfion Houfe
The Church a Manfion Houfi within the Law.
§. The Out buildings , as Barns Stables , are parcel of the Manfioi Houfe , and Burglary may be com mitted in them.
Nota , L'ufe ore eft , fi foit u\ Barne ou Stahle disjoyned at art] diftance from the Houfe, nefi Burg lary.
Burglary may be committed in ; Manfion houfe , though all perfon be out upon occafion.
So if a man hath two Houfes, an< fometimes live in one , fometime in another.
t
A Shop parcel of a Manfion houfe.
A Chamber in an Inns of Court, where a perfbn ufually lodges, a Manfion houle.
But a Booth is not, and therefore remedy efpecially provided per Stat. 5E.6.C.9.
But an Indidtment quod fregit claufum ad if [urn interficiendum , no Felony, for no Manfion houle.
A. leafes to B. a Shop , parcel of his Houle , to work in , where B. works in the day , which is broken, ftuled not Burglary, becaule fevered >^Leafe. Trin.iy Jzc.
IV.With Intent to commit lome Felony.
If the Houle be broken and en- gpc.c.1* red with an Intent to commit a Trefpafs , as to beat the Owner , no 7elony.
If with intent to commit a Rape, )y fbme no Burglary , becaufe no ^elony at Common Law ; but this eems otherwife, though the Felony >e not done
G % The
1
84 l&utQiatjv I
The Indi&ment runs, Burglarrter & felonice domum, &c. fregerunt vet intravertmt ad ipfum, &c. interficien- | dum.
And by the Stat, of 18 ELc.6. Clergy taken away in all Burglary.
Arfon.
85
Arfon.
BVmmg is Felony an Common Law, by any that fhaiJ mali- cioufly and voluntarily burn the Houfe of another.
Burning.
Setting Fire on a Houfe, without burning it , or any part of it , no Felony ; but if part of the Houfe be burnt thereby , it is Felony by Common Law.
| Malkioujly.
A. intending to burn only the Houfe of ^.thereby burns the Houfe of C.this is Felony ; and he may be
hlndi&ed, That ex ma lit hi prtfcogit9 he burnt the Houfe of C.
A. malicioufly burns his own
I ! Houfe, to the intent to burn ^frhers, I but none elfe but his own burnt,
1 1 ruled no Felony, but a great mifde- imeanour ; upon which fet in the Pil- lory,and bound perpetually to Good |Behaviour.9 Car.B.R Haines 'sCale.
26 Sltfom
$0z$ S le meafott li'tfutre 2 c ett combttre, ett felony*
The /fiw/£.
In-fet Houfe, or Outfet Houfe. If parcel of the Manfion Houfe , as Stable, Mill houfe, Sheep houfe, Barn, and no Clergy.
§. But burning of a Barn , not parcel of a ManfionHoufe,if it hath Corn or Hay in it, Felony, otherwife not.
But Felon not ouft of Clergy, unlefs part of the Manfion Houfe or Barn with Corn.
Burning the Frame of an Houfe by 37 H. 8. attempting to burn a ftackof Corn,by3 (g^E. 6. made Felony, but both Repealed i Ma.
But in Northumberland , Cumler- land, Wejlmerland , and Durham , Felony to burn a ftacfc of Corn by ^Elc.y
Mta, The Indictment of Burglar)',
Domum Manfionalem\ of Arfop pn'y, Dcmurn.
Breach,
87
'Breach of Trifon.
NOw we come to rhofe Felo- nies that are the hindrance of amejning a Felon to puhlick Juftice ; And they are of three kinds in refe- rence to the perfon that caufeth it: i. In the party himfelf: C Breach of Prilbn.
CEfcape.
2. In the Officer or Perfori that permits it; and then,
Voluntary.
involuntary ,
3. In a Stranger, thatisRefcue. 1. Breach of Frifm.
At Common Law it fcems all breach of Prifon , Felony ; but by Stat. 1 E. x. nullus de ctftero , qui prifonam fregerit , fubeat pteltciuin vita vel memhrorum pro fratlione prifcntEj 'ttifi caufa , pro qui capt' & imprifonaf fusritytale Judicium re qui- rit.
G 4 And
88 Ubimlp of $|tfom
And herein thefe things are confr derable:
i. Who may Arreft or Itnprifon > z What a Prifon >
3. What breaking a Prifon >
4. What a Caufe that requires a Judgment to make this Felony l
Arreft.
8*
Arrejl.
WHo may Arreft or Impri- fon> This is either, i. By a private Per fon. 2. By a pubiick Officer. i. Arreft by a private Per/on, and that two kinds : i. Either commanded and
enjoyned by Law. 2: Or permitted and al-c.PC.f.n. lowed by Law. Arreft commanded by Law. i. Perfbns prefent at thecommit- lg of a Felony muft ufe their en? avours to apprehend the Offender, st.pc.eap. berwife they are to be fined and liprifoned.
i Hence it is that if a Murther be |mmitted in the day in a Town |>t inclo(ed,the Townlhip lhall be nerced; if in a Walled Town, be Night or Day, the Town fliallbe iierced [if Offender efcape] Stat. Uy. i.
So
9o %ttt%
So it feems if one ftrike anothe dangeroufly, though death hath no yet hapned.
%. Upon Hue and Cry well leviec cPCl5' every man may and muft arreft tli Offender upon whom ic is levied, b Stat. Winchefter : And want of pu fuit thereof is puniftiable by Fii and Imprifonment.
The 'manner of levying Hue a) Cry is, where a Felony is committe or a dangerous ftroke given , reft to the Conftable , declare the Fa( defcribe the party and the way is gone , who thereupon is to ra the Town,be it by Night or Day, a to give the next Conftable warnii and he the next.
3. In aid of an Officer that h: a lawful Warrant in fa ft, or in Li to arreft a Ma!efa<2or.
And in thefe cafes it feems it
Bak.fo.34p. in the powcr 0f fuch private per
to break the Houfe, if upon dem;
he cannot be admitted to take
Offender. 7 £+16.
. coke Jur. Videtur, 1. Sur felony fait fe .
Jowts 177. fujpkion ajfctm poit arrefter. 2 E. 4
2. Sur Arrefl dt^amefner al Com- non Gaol, 20 E. 4. 6. ou deliver al Zonftable, 10E.4.1.
z. A permifive Arreft by a private >erfbn :
If a felony in Fad: be committed, nd a private perfon fufped: another pon a probable caufe , he may be rrefted, though in truth innocent : Lnd theft may be Trolahle Caufe s ;
Hue and Cry levied ;
$. Company with the Offender ;
§. Goods in his Cuftody ; ,
$♦ Living vagrantly ;
§. Common Fame.
But upon fuch fufpicion he can- c-?«>*.c*«w ot break open the Door of a Houfe, *79' ttt may enter the Door being o- en.
The perfon Arrefted by either of lefe means by a private perfon, mft be brought to the Conftable ; nd if Conftable be not to befound^ait.fo^i^ ) a Jurtice ; and in cafe of a Felony nown, put in the Stocks or Com- ion Gaol tiil he be brought to a lonftable. to
a.Arreft
I
z. Arrefh by a puhlkk Officer, witl I out Procefs of Law.
* iVi?^,Whatfoever a private perfc may do in this cafe, an Officer as private perfon may do.
Now thefe Officers, I. Conftable*
If complaint be made to a Co; ftable of Felony committed, or of dangerous Blow given , though tl party not dead ; or in cafe there ! an aflault upon the Conftable, or cafe of any other breach of i Peace, the Conftable may imprifi the party in the Stocks, in the Ga< or in his Houfe, till he can bring hi before a Juftice of Peace.
But if it be a bare breach of ti Peace , unlefs it be in his view , i cannot Arrefl the party ; but coi plaint muft be made to a Juftice ' Peace: For the Conftable is but Confervatcr , not Juftice of Peac unlefs a Felony be done.
If a Conftable fee an Affray, ar the Malefactors fly into anoth; County before arrefl: , he may pu
fi
21 1 reft* <?3
jc them and Arreft them there, nd then he muft bring them before
Juflice of that County where Ar- J:fted.
But if the Efcape was after At* |:ft, then he may retake them in lother County, and bring; them to ic firfh
He may break open Doors tooaicc-s. ke an Offender , where Felony immicted, or a dangerous Wound ven.
2. By a Juflice of Peace , who >on complaint may iffue out his arrant to apprehend the party :
i. A General Warrant to fearch c-fa>c<wts c Felons or ftoJen Goods, not177*
lod. x If a Juflice hath caufe of fufpi*
c >n, he may arreft as a common
|rfon,not as a Juftice.
3. Upon complaint of a Felony tnmitted , and where doubt may
of apprehending the Offender,
afliftance of the party fufped-
I;, he may grant his Warrant to
|: Conftable to apprehend the
||rty, but the party fufpe&ing
ought
5>4 atrett*
ought robs prefent, becaufeit is h Arreft.
But by virtue of fuch Warrai Doors cannot be broken up.
4. But at the Seffions the Jufli may award a Capias againft Perfon indi&ed , and by virr thereof the Sheriff may break op Doors.
A party being apprehended fuch Warrant, is either to be Co mitted,Baited,or Difcharged.
The Commitment by a Juftice ou£ to be to the Common Gaol , by 1 Stat. 23 H.S. c.z. and the Mittini ought to be, c. m. caw. t. Under Seal stat.3 H.7./.5. x. Contain theCaufe.
3. Have an apt Conclulion , ?| there to ftay till deliveil by Law, otherwife the Wl rant void.
And Note , That a perfon Ccl ^I00' mitted for Treafon , Felony,
other Crime , cannot be difchar^Y
Street 9S
U ill indided and acquitted; ox Igno- ramus found, or dif charged by Pro- clamation , or by the Kings Bench ]ipon Habeas Corpus.
'Bail
96
"Bail.
IN order to the confideratidri . Arrefts and Efcapes , here fit ' confider of Bail and Mainprize cafes of Felony.
i. What Bail is >
2. In what dates ?
3. By whom >
1. Bail , are Sureties taken by Perfon authorized, to appear at a da and to anfwer and be juftified I the Law.
The difference between Bail a Mainprize is, That Mainpernors 2 only Surety, but Bail is a Cuftod and therefore the Bail may refei the Prifoner if they doubt he \i fly, and detain him and bring h before a Juftice ; and the Julli ought to commit the Prifoner difcharge of the Bail ; or put hi to find new Sureties : The like m be done by the Juftices in cafe infuificienc Bail.
ma.
If a Juftice of Peace take ineffi- cient Bail, and the party appear not, the Juftice finable by Juftice of Gaol Delivery.
The fufficiency of the Bail in re- pe<5t of their number, two at leaft ; md I thofe Subfidy men in cafe of 7elony.
And in refped: of the fum, Forty >ounds at leaft.
Bail is either in a certain fum ; or orpus pro corpore, in which cafe the )ffender not appearing, the Surety lall not be Executed , but only ined, 29 4^44- 2. In what Cafes >
1. Generally : To refufe Bail where lie parry ought to be bailed , the J arty offering the fame is finable, as I Mifdemeanour :
I §.And admitting Bail when it ought Irt, is punifliable by the Juftice of jaol Delivery by Fine, or puniihable
a negligent Efcape at Common liW, de quo infra,
a 2. Particularly: At Common Law liil in all Cafes but Homicide; lit now the Stat. Weftm. 1. c 15. I . H dire&s
97
Crom.1^4*
$8
dire&s in what Cafes bailable , and what not ?
At this day, in all Offences below Felony,the party accufed is bailable, unlefs
i. Oufted by that Statute ,or fome other Statute. 2. Unlefs Judgment be given. If a Perfon be brought before a Juftice , if it appears no Felony be committed, he may difcharge him ; but if a Felony be committed , though it appears not that the party accufed is guilty , yet he cannot difcharge him, but muft commit ot bail him.
The cafes of Felony wherein the parties are not bailable, are
1. In refpett of the hainoufnefs o the Offence.
1. In a Charge of Treafbr againft the King's Perfon : I £. Counterfeiting the Seal: Dak.c.114. §. Falfifying Mony.
z. Arfon,or burning Houfes.' 3. In a Charge of Homicide. 1 .In cafe of a Charge of Murrhe; Tuftices of Peace cannot bail , bu
^ th
Bail* 99
the King's Bench may; but do not£a,\.c-n^ in difcretion, for the Stat. Wejlm. i. 'cju^er' extends not to chat Court.
2. In cafe of Manflaughter,though it be but Se defen/iendo,w\& fo appear ro the Juftices of Peace, they cannot bail the party accufed :
i. If he confefs the Fad: uponDaitc.124, Examination :
2. If taken with the manner, if apparently known or manifefted that he killed another.
But if it be a Non liquet that he is the Perfbn,and the Charge but Man- slaughter, there it feems they may I bail.
So if he have given a dangerous ftroke,he may be bailed till the party dead.
But fuch Bailment where Man- slaughter or other Felony committed, muftbe
1. By two Juftices, one of the, \Qjiorum.
z. After Examination, &c.
And thefe be all the perions ex 3 M.7 c.c?. :luded from'Bail fimply, in rqfped: of *^*fca ff; he nature of the Offence : Hence H % i.All
loo
cweft.i.c.i5. I# All Acceflbries before or after any Offence bailable ; but if the Principal be attainted, and Acceflb-
st.pc.ci8. *y induced , he {hall not be bailed until he hath pleaded to the Indid:- ment.
z. Perfons indi<3:ed of Larceny before the Sheriff", if of good Name.
3. Imprifonment for a light fufpi- cion, if of good Name.
4. Indi&ed or accufed of petty Larceny only.
5-. Appellee of Approver after death of Approver.
6. Accufed for Trefpafs,for which a man ought not to lole life or mem- ber, if bail not taken away by a fubfequent Stat. Dak c 11 i^nc' kence alfo a party indi&ed
fo.304. for Burglary or Robbery may be bailed.
z. As bail is oufted in fome cafes, m refpedt of the greatnefs and con- fequence of the Offence charged , fo it is in refpett of the Notoriety of the Offence: For bail is, when Stat in* differ enter, whether die party be guilty or no : but when that indif*
ferency
Jl&atU io i
fcrcncy is reirtoved , the Offender otherwife bailable is become noc bailable.
i. If a Pcrfon be Attaint by Ut- Wcftm u CAS lary of any Felony, yet if -the 'De- fendant comes in and pleads in avoi- dance of the Uriary,be it in Appeal pr Indi&ment, the King's Bench iiiay bail him.
2. If hebe convict by Verdi«5tor Dak.ci.14; Confeffion of any Felony, he is not bailable.
But if a man be convid of Man- (laughter Se defendendo, the Juftices ar'3 3' af BR. or Gaol* Deli very, or Special Writ may bail him, but not Juftices :>f Peace : So if he have Charter of ^ardon.
3. He that becomes an Approver zannot be bailed.
4. He that Abjures cannot be bailed.
5-He that's taken with the manner lot bailable : And confequently leither he that's taken frefhly upon. lueandCry. Bridge's Cafe. Ju- faceof Peace fined 40 /. for bailing uch
n 3 6.hq 1
102
JfcaiL
6. He that breaks Prifon, not bailable.
7. Open and notorious Thieves, not bailable.
But he that is taken for a light Sufpicion, bailable.
But if the Prefumption be ftrong, or the Defamation great,the Juftices may refufe to bail him : This lies in difcretion.
8. Thofe that are Appealed by Provers ; unlefs,
1. The Prover die. z. The Prover waive his Ap- peal. * 3, Unlefs he be of good Name. And the Reafon hereof , becauft when the Approver appeals another, he confefleth himielf guilty , and therefore induceth a prefumption oi guilt in another.
But this concerns not Juftices oi Peace, becaufe no man can become Approver before them; becaufe thej cannot ailign a Coroner ; but the) may take the Cpnfeflion by way o.
Evidence.
Bui
H&aiL 103
But a bare Indictment or Appeal did not induce fuch a prefumption that may hinder the bailing of a Perfon otherwife bailable. V. Stat. WeBm.vx.zs-
But in Appeals of Death thes.pc.18. Court in difcretion admit not the Defendant to bail, but upon weighty caufe.
If the party be acquitted within the year upon Indidtment, he ft not to be difcharged , but remanded or bailed at discretion, that an Appeal may be profecuted againft him. 3/7.7.C.1.
3. Who may take bail, or bail Of- fenders?
Bail was taken either virtute Ire- vis, or ex officio.
1. Bail taken virtute hrevis , that was either General or Special.
The General Writs.
Homine replegiando.
Habeas Corpus in the Kings Bench.
Writ of Mainprife ; this was di- rected to the Sheriff, commanding him to deliver by the Mainprife of H 4 Twelve
104 Jfcail*
Twelve , the party indi&ed before him.
stj>c.77> But now by Stat. 28 E> 3. c. 9.
thefe Inquefts before Sheriffare taken away, and confequently the Writ of Mainprize.
Special Writ, as where a party is convidtof Manflaughter Se defender do ; a Special Writ to certifie the—
z. Bail ex officio.
1. The Kings Bench, who have a higher Power than any other Power.
1. They may either in cafe of an Original Suit , by Indidrment or Appeal before them ; or upon an In- dictment or Commitment returned to them,by Haheas Corpus or Certio- rari, bail where another Court can- not :
In cafe of Murther. B> Mainprife, 60,63, @V.
In the cafes prohibited by Stat. Weftm. i.e. 15. V.Cook ibid, verb. Vifiounts , <S? autre s verb, ne foient replev'ifable.
2,. Jujlices cf Gaol Delivery, who may ball in cafes where Juftices of
Peace
Hbaih 105
*eace cannot , if it be of a thing vithin their cognizance.
0. As a perfon convid of Man- laughter Se defendendo ;
§. Or a perfon convidt of Man- laughter, that hath a Pardon to >lead.
3. Juftices of Peace.
§. 1 . They cannot Bail in any cafe, ut where they have cognizance of ie caufe ; therefore if taken upon rocefi of Rebellion out of Chancery ley cannot bail.
2. The Statutes that givevpower ) Juftices of Peace to bail in cafe If Felony, are 3 H.7.C.3. 1® zPk \* Ma* c. 13. upon which two kinds f Bailments.
i. Upon the firft Accufation , and hfore Examination, and that doubt- |(s mufl be done,
1. By two Juftices, whereof one of Quorum.
2. After Examination taken Cr. 155. concerning the Offence.
%. After Commitment : And ough feme Opinion be that he ay be bailed by one Juftice, yet it
(cems
io* BaiU
,
feems otherwife ; for the Stat i R. 3. that gave power to a ftands repealed by 3 H.7.
3, After Indi&ment and Procef thereupon ifiiied in cafe of Trefpal or Mildemeanour, or Penal Statute not prohibiting Bail,he may be baile by two Juftices, whereof one of tfc Quorum ; and by fome by one Juftic and thereupon may grant a Super/a to the Exigent, But it feems th holds not upon a Procefs upon I di&mentof Felony. Qytfre.
4. The Sheriff, Baily, or Office which was of Indidtment befo them 1 But thefe are removed fro that power, as it feems by the Sn 28ZS.3.C.9.
1 £.3.4.c.3.whereby they are n to make Procefs,but to remove the to the Seffions of the Peace.
Rumpi
107
Rumper 'Prifon.
VjOW having confidered the f\ Perfbns that may Arreft and I ail, it makes way to confider the ffence againft fuch Arreft or Im- ifbnment, by breaking fuch Pri- nze. And herein enfues the fecond lonfideration. | 2. What a Trifon within this Sta-
i. The Stocks.
z. The Prilbn of a Lord of a Franchife.
3. The Cuftody of any that Lawfully arrefts 9 or the Houfe of the Onftable , or other perfbn frhere detain- ed. ,
4. The Church, where a per- fon abjuring is.
5. The Prifon of the Ordina- ry , which is now oufted , Stat.z$ H.8,c.ii.
3. What
io8 Bumper p?ifom
3. What a Ireaking >
If the Prifon be fired without tl privity of the Prifoner, he may lav fully break it to fave himfelf.
z. If a Gaoler do voluntarii permit him to efcape, Felony in tl Gaoler , not in the Prifoner ,• but negligent, Felony in the Prifoner,ar Mildemeanour in the Gaoler.
3. If Prifoner under Cuftody 1 refcued,or Prifon bi;oke by Strange Without his procurement, no Felor in the Prifoner.
4. Going out the Doors open, Felony ; for the Statute requires 1 adual breaking.
4. Niji caufa ; tale judicium ,@ V.
1. If A. mortally wound B. an is committed , and he break Prifoi and B. then die, no Felony.
z> If a Felony made by a fubl quent Statute, and an Offend< committed therefore , break Prifoi Felony,
3. Con
3. Committed for fufpicion of slony,yet if a Felony done,breaking rifon Felony.
4. If the Offence for which the irty was committed appear not by [atter of Record .neceflary a Felony ! done, elfe breach of Prifon no :lony.
But if it appear by Matter of Re- rd; and the party taken by Capias,
he break Prifon,Felony,though no lony done.
£♦ If Felony was done,yet breach
Prifonno Felony, unlefs a lawful ittimus, de quofupra.
6. The Indi&ment for the breach jft be Special, that it may appear I was committed for Felony.
5. Tale Judicium re quirk*
11. Breach of Prifon turns into lony only, though the party were mmitted for Treafon. I But if a Prifoner break a Prifon perein Tray tors are, to lee out the 8|:aytors,this is Treafon.
z.A
I IO
Bumper $jtfom
2. A man imprifoned for Pet Larceny, or Se defendendo , breal Prifon,no Felony.
3. If a Prifoner break Prifon , \ may be Arraigned of that before|| be convid: of the firft Felony.
v.Dait.33!. But a Gaoler permitting a volu tary Efcape fliall not be Arraigned ti the Prifoner be firft Attaint; for the Prifoner be acquit , the Efcaj difpunifhable.
Efcap
1 1 1
Efcape in the Tarty.
W TO/j, If a Perfbn efcapes before ^| Arreft, not punifiiable in him \ Felony ; but for the Flight , he >rfeits Goods when prefented.
In cafe a man flain in the day, if le Offender Efcape , Townlhip nerced. Vide fupra.
Iffint fi foit davgercufment Wwnd^ JH7.C. 1. Et fi (hit vill immure fer vierce, foit ceo~in jour ou nuit^ E.3. Ioron.199. Stat.Winton.cap.4.
Efc4[
Pe.
112
Efcape in the Officer ^or hin\ that maizes Jrrejl.
THis is either in cafe of Arrefl i. By a Stranger. z. By an Officer.
If a Stranger Arreft a man fc Felony, or lufpicion thereof, an deliver him over to four others, an they receive him and let him go large, this is an Efcape in both ; fc the firft man fliould have delivere himtotheConftable; and the iattc ihould not have let him go at larg<
And the fame Law (eems to fc for an Efcape by a Stranger th; hath a Prifonef in his Cuftody, a for an Officer in cafe of Efcaf voluntary or negligent.
Efcap
U3
Efcape by an Officer,
E
Scape of an Officer. I. Negligent. i. Bailing a perfon not bail* able , through ignorance , by one that hath power to bail i a negligent E- (cape. But it teems if done by a Gaoler a voluntary Efcape; becaufe he hath no fuch power. 1. The ordinary punifhment of a Negligent Efcape. i. Of a party Attaint,
ioo /. i. Of a party Indid ,
3. Of a party not Indid,
at di(cretion#
3. For Infufficiency of the
Gaoler , the Sheriff muft
anfwer for Negligent E*
fcapes.
I 4 .A
II4
€ftape*
4. A Gaoler Je fatto , though not de jure , mull anfwet for Efcapcs.
5. If after a negligent Efcape [ the Gaoler retake him up 1 on frelh Suit before he b< puniflied, itexcufeth,
If the Gonftable bring a per
fon to Gaol, the Gaolei
refufeth him , the Vill Jha
be charged , and Gaok
fined.
%. Voluntary Efape.
^i4a.3.c.io.B 1- Hath the lame Crime that th
perfon permitted to Efcape floo
committed for, viz. Treafbn or ft
lony.
2. But this is in the imrfiediat perfon that permits it ; and ther< fore though civilly the Sheriff mu; anfwer for Offences of Gaoler, y< not criminally.
3. There muft be a Felony reall done,and a Commitment by a law iul Warrant.
4. If within the year the Prifon< be acquitted upon Indictment, yet voluntary Efcape is puniftiable \
Fel<
<£fcape* 115
: Felony, becaufe Wife intituled to her Appeal.
5. The Efcape if voluntary, pu> j*£fo.H*. nifhable utjupra* though the Prifoner ^r"' were not inclined.
■
I l Refine.
n6
Refc
"A
cue,
Hindrance [of a perfon I b be arretted that has com mitted Felony is a Mi(demeanor,bu no Felony. {
z. But if the party be arreftec and then refcued , if the arreft ws for Felony , the Refcuer is a Felor if forTreafon, a Tray tor ; becaul they are all Principals.
But he ihall not be arraigned the Principal attainted ; and if tt Principal die before attainder , tl Refcuer ihall be fined and imprifo
cd,
3. There mutt be a Felony real done, and a lawful Commitment.
N. Re/cue hors de cujtody de Cc {table, &c. ejl Felony , licet ne ft amefne al Gael.
Feloni
II7
Felonies by the Statute. cjpj.cc4,
AX Imagining and confpiring to kill the King , or any of his Council.
§♦ Clergy not taken away. I Jacx.iz.
§. Witchcraft, de quo fupra,
§. zy H. 8. c. 6. Revived by $ £/. r.17.
Buggery with Man or Beaft.
§. Without benefit of Clergy-
Df to (?/fc Tenetratio% as well as Emiffio.
In this and Rape carnaliter cogm* vit.
ilEic^
Rape : This was Felony at Com- mon Law ; then by Stat. Weflm. i. % 1 3. made but a Mifdemeanour ; then by this Statute reftored to Fe- lony again.
And hence it is that it is not \n-c furm I quirable in a Leet, becaufe though stat' no Felony; yet it loft its nature by W-ix.iy
I 3 Nul
1 8 feloniesbp tlje £>tat.
Nul Appeal done al party.
\%E.\Coron. 169.
If the Woman be under ten years then though fhe confent,yet by Stat 18 £/c.6. it is a Rape; if above tet years, if (he content hot , a Rape though fhe content after.
But in fuch cafe of a fubfequen confent, the Stat. 6 Ri.c.6. gives th Appeal to the Husband , if none t< the Father,&c
Clergy taken away by Stat. 1 8 Ei c.7. upon Conviction by Verdict, c Confeffion, orUtlawed.
Cefiuy que aid in Rape eft Ravifto) Iiiy.4.13.
3. H. 7. c.%.
Taking a Woman againfl her Wi and marrying her, Felony.
1. Such Maid, Widow, or Wif Mull have Lands , Tenements , c Goods, or be Heir Apparent.
z Shemuft be taken againfl he Will. f
3. Sl>e mufl be married or de filed.
4. Extends not to taking a War< oy Bondwoman/
■f ■;l"; ' ; Nota
felonies? bp tyt &>t&> 1 19
Nota, The taking away in on* County , and marrying in another, indi&ed where married ; and they may enquire of the forcible taking. i. Privy to the Marriage , but not to the Force, not Guilty. 3. Marriage with Content not excufing fo long as flie is under the Force , 13 Car. FuU wood's Cafe.
All Acceflbries before or after, made Principals by this A£t.
Clergy taken away by Stat.39 El.
C.TL.
5 H.4. c.y.
Malicious cutting out Tongue, or putting out Eyes, Felony.
Clergy not taken away.
Extends not to cutting off Ears.
8/7.6. c.i 2..
Stealing, carrying away or avoid- ing Records, Felony. And
The Judges of either Bench ena- bled to hear and determine the tame.
Acceflbries before made Princi* pals.
i Clergy allowable. 5//4. c4.
I 4 Multfc
i29 felonies bpt!je£>tat*
Multiplication of Gold or Silver, Felony. • i //7.C1.
Hunting unlawfully in Forefls , Chafes , or Warrens with painted Faces by Night, and Refcuers , vm other than the party arretted , Fe* lony.
31 El. c.4.
Imbe^elling the King's Armouf, &c. Felpny.
Qualifications*:
i. Ought to be mpeached within nyean
z. Offender lofeth Lands but dy- f ing life.
3. No Corruption of Blood.
4. Wife lofeth not Dower.
5. Defendant admitted to proof. 3^cr.4
Subje&s palling Sea to ftrve fo- reign Prince, not having taken Oath of Obedience :
No Corruption of Blood : Pffender may have Clergy.
Artmil
IFeionieabptlje^tat* 121
Articttli fuper Chart as,
cz.
Purveyors Felons in certain Ca- fes: §. They may have Clergy. 39 EL c. 17.
Wandring Souldiers, Felons in :ertain cafes.
§. Excluded of Clergy. 18 H 6xi 9,
Souldiers retained, as is prefcribed n the Ad , departing from their Captains without licenfe.
$. z E>6x.x. ad idem,
§. Clergy excluded* 1 Jac. iz*
Marrying a fecond Husband or Fife, the former living, Felony: ixcept Cafes following ;
i* The Man under fourteen , or le Wife under twelve at time of rft Marriage , and not agreeing fterfirft Efpoufals*, may marry a :cond Husband or Wife.
z A Man or Wife abfent above iven years , fecond Marriage no Fe- )ny : If beyond Sea, though notice
of
122
$t\mit8fytl)t%>teu
ijac.n. 0f life: If in England, then withou notice.
3. After a Divorce, though a men} & thoro only.
4. After a Nullity declared of t\ former Marriage by Ecclefiaftic Court,
Offenders have Clerg
1 Jac.c. 31.
§. For going with a Plague S01
but this difcontinued.
14 ZJ/.3. 20.
Gaoler compelling Prifoner
Durefs to become Appellor, Felor
whether the Appellees be acquitt
or not.
3/Zj. c.i.
Coining , or bringing in Ga
half pence* Suskins, or Dodkins.
§. And 2 H. 6. c. 9. payment
Blanks,
Offender hath Clerj
17 £.3.0.15. Tranfporration of Silver , or 1
portation of falfe Mony , made
lony,
Offender hath Clef
18 H.6.c. if .
Exf
felonies bptl)e£tfat* 123
Exportation of Wool or Wool- fells, other than to the Staple of Calais.
37 ^3. 19. Stealing Falcons,&c. or concealing :he fame after Proclamation , Felo* iy.
Offender hath Clergy. 3 H.6. r.i. Congreation of Mafons to prevent Statutes of Labourers :
$. But this Obfolete by the Sta- ute 5 £/.the Ads to which it relates ire repealed. 27 El.cz. Receiving,retaining,or maintaining Jefuit or Popifti Prieft knowingly, Clergy excluded.
3/ ElsX Felony refufing to make Abjura- ion, or after Abjuration not to lepart, in fome cafe,
Clergy excluded.
Egyptians atove fourteen years, emaining here a Month. §. And j EL c. 20. takes away
39El.
1 24 IFeionies bpt^e £>tat
39 ELc 4. 1 Jactcj*z$. Dangerous Rogue adjudged t the Gallies ; and returning withpi licenfe, Felony: §. But Offender hath Clergy. §. But branded Rogue, Felon, an no Clergy. f El.c.14. Forging a Deed after a form Con virion. cpc £ 1 72. If a man be convid or condemn* of publishing a forged Deed , ai after he forge a Deed , this is Fel ny.
If the Offence were after a forme but before Convi&ion thereof, Felony.
Clergy ouftc
Sending Sheep beyond Sea aftei former Conviftion.
Clergy allow* 33 H.6c.i' Servants after deceafe of th Mafter, riotoufly fpoiling Gock &c
Offenders fliall have Cler
21
felonies? bp tjje £>tat* 1 2 5
21 #.8.7.
Servants imbezclling Goods of heir Matters delivered to them , 7elony ;
But the Statute of 27 /£8. c. 17. hat took away Clergy , being Re- galed by 1 E.6 c. 12. they may now lave Clergy.
22/7. 8. c. 11. 2&3 Pb.&Ma.
Cutting Powdike, Felony,
Offender hath Clergy. 43 Elx. 13. Detaining perfons in Cumlerlandr *€c. againft their Will , and giving >r receiving Blackmail,&c. Felony, Without Clergy.
Miffrl
126
Mifprijions.
TWTOW we come to Offeno JJ^I Criminal, but not Capital and thofe of two kinds :
i. Offences by Common Law
z_. Offences againft fpecial St tutes.
Offences by Common Law n Capital, are either greater Offenc or lefler :
Greater; and thofe come unc name of Mifprijions, which again a of two forts :
Negative, in not doing that th< ought, or of Omiffion.
Pofitive, in doing fomc great IV) demeanour they ought not.
Mifpri/io
12/
Mifprifion of Treafon.
The Negative Mifprijions.
Mlfprifion of Treafon. All Treafon includes Mif-* M. *. rifion : The Concealing of anyCPCc#J# >eafon, is declared Mifprifion only y the Statute of i ® 2 Marx.ioque itfuce auxi mifprifion. But this in cafe of bare know- dge; for if knowledge and Aflent, is Treafon : and though the Trea- »n be by Statute % yet the concealing lereof is Mifprifion of Treafon. Every man therefore that knoweth Treafon, muft with all fpeed reveal to the King, his privy Council, or :her Magiftrate.
He that receives and comforts a c.pcu$4; raytor knowingly,be it a Counter- iterof Coin or other, is a Principal raytor, and not only guilty of Mif- rifion. Ahingdoris Cafe againft the opinion in Dyer z^6 Cottier's Cafe.
The
i28 apifpjifion of £teafom
The Judgment in cafe of Mifpi fion of Treafon is Imprifonmei during life, forfeiture of Goods, fo feiture of profits of Land durii
life.
Nota, Si un conufi un que ad cot terfeit Coigne, & ne luy difcover, Mifprifion de treafon. Mes fi folement utter counterfeit coignefck ceo ejire counterfeit neft MifpriJ* de Treafon , mes ferra Fine & 1 frifon. Iffmt refolve a NewgJ 1661.
Mifprift
I2£
Mifprijion of Felony.
i. \ /Tlfprifion of Felony,
JLVJL i$ either by Common Law, )t by Statute.
By the Common Law a conceal- nent of a Felony, or procuring of he concealing thereof.
The Punifhment.
i. If a common Perfon, Fine and nprifonment.
2. If an Officer, as Sheriff, Co- mer, Imprifcnment for a year, and anfbm at the King's plealure, by tatW.i.c.y.
By the Stat.$ H.jjc.i. 33 H.S.0.6. tie knowing of an unlawful Aflem- iy, and not discovering it within 4 hours.
Concealment of Jurors, vide Stat.
K Theft-
l3o
■Theft bote.
3. r I ^Heftlote , which 19 mor< 1 than a bare Mifprifioh o Felony, and is where the Owne doth not know the Felony , bu takes his Goods again, or other A mends, not to Profecute.
But taking the Goods again bare ly, no offence, unlets he favour th Thief.
The puniihment hereof is Rat fom and Imprifonment.
Mifprifion
*3»
Mifprijiom Pofitive, or of
Cgmmijjion,
i. 1 """Ylfcovery by one of theCoPCc-4^.
jL^ Grand Inqueft of the per- fons Indi&ed , or Evidence againft them, Mifprifion, punifhable by Fine and Imprifonment, but no Felony, aorTreafon.
2. A perfon difTuading Witneffesc- Pc. c.<54. from bringing in Evidence againft a
Felon is no Acceflbry, but a great Mifprifion, jpunifhable by Fine and Imprifonment.
3. Reproaching a judge, afTaulring an Attorney againft him, or abufing a Juror that gave verdid: againft him ; a great Mifprifion, punifhable by Fine and Imprifonment.
4. Refcuing a Prifoner from the Bar of the Courts of B. R. Cane. B. C. or Exchequer, a Mifprifion for i Which the party fliall lofe his Hand, I Goods, Profits ofLands.during Life, land perpetual Imprifonment.
?. If a man ftrike fitting the four
Courts at Wefiminfter , in the pre-
K % (mm
2 spifpjifions pofttiU*
i
fence of the Court , the like Judg- ment
6. If in prefence of thole Courts, or before Juftices of Aflize or Oyer & terminer , a perfon draw his Sword upon any Judge or Juftice, though he {hikes not, or (hike ano- ther, like Judgment.
7. By Stat. 3 3 H.S.c.iz. (hiking in the King's prefence, drawing blood ; lofs of Hand and perpetual Impri- fbnment, Fine and Ranfom.
3. By Stat.- 14 El. c.3. forging of Money not current, Mifprifion of Treafon.
9. Stranger uttering falfe Money made within this Realm, knowing it Counterfeit, 3 H.y.io.
10. A Lord of Parliament, depart- ing from Parliament, 3 £.3.
Maihem*
33
Maihem.
ANd hither we may refer Mat- hem, which though it be a particular Crime, for which Appeal lieth,yet it is not Felony of death.
Cutting off the Hand, orftrikingc-CPc ■+©• out a Tooth, Maihem ; but not cut- ting off the Ear.
The Judgment is only Fine and Damages ; and therefore if recovery in Trefpafs, it is a good bar in Ap- peal of Maihem.
K | Offences
i34
Offences not Capital
O fences of an Inferiour nature : They are either fuch as are committed by an Officer: Negledt of Duty, Bribery, Extortion. Or fuch as refer to a common perfon, without relation to Office, and thofe reducible to three kinds:
i. Breaches of publick Peace, and therein,
i. Of Affrays, z. Of Riots.
3. Of Forcible Entries,
4. Barretries.
5. Riding armed.
a. Deceipts and Cozenage. 3. Nufences.
Decay of Bridges. Decay of Highways. Jons and Alehoufes.
Breach
1
*35
"Breach of the Teace.
AF F R A Y, If Weapons drawn, or ftroke given or offered ; but Words no Affray : Menace to kill or beat, no Affray ; but yet for fafeguard of Peace, Conftable may bring them before Juflice.
In Affrays confiderable, i. What a private Man may do? Private perfons may flay Affray* erstill heat over, and deliver them to Conftable.
If perfon hurt another danger Dair, c*. roufly, private perfon may arreft the Offender, and bring him to Gaol or next next Juflice.
z. What by a Confia He ?
i. Affray in prefence of a
Conftable, he ought to do
his endeavour to fupprefs it,
otherwife finable.
2. If an Affrayer fly to a hbufe,
or if made in a houfe, Cons
K 4 ftable
1 36 ji&zeacljof tfjef&eace*
(table may break opfci houfe to preferve Peace , or take the Offender.
j. If in Affray Aflault be made, upon the Conftable, he mayi ftrike again , or imprifbnl Offender.
4. Conftable may in fuchcafe injprifon, till he find Surety] of Peace.
j. But it feems if Affray paft, and not in view «of Con- ftable, he cannot imprifbti without Warrant of the Ju- dice, unlets Felony done, or like to be done. 3. What by a Juflice ?
J. In his pretence , the fame Power that a private per- fbn or Conftable, and may imprifon till Surety of Peace found ; the like upon Com- plaint.
% If dangerous hurt Juftice may imprifon till appear whether the party die or live, or bail the party.
The former better difcretion.
Riot.
fl^eacljof tfcei&cace* 137
Riot.
When above the number of Two
ieec to do fome unlawful ad, and
!^>a⁢ but if they meet and ad
not, an unlawful Aflembly, m
>wer of Juftices to fupprefs them,
; H.4. c.j.
A man for Safeguard of his houfe ainft Malefa&ors or Trefpaflers, ly aflemble his Friends for his jfence.
I But he cannot aflemble to pre- Jnt a beating threatned in his pre- I ice.
iRiot recorded by one Juftice upon mjw traverfable; by two, not, be- aft purfiiant to the Statute.
Forcible
i38 ft;eatf) tf t|>e fteac&
Forcible Entry.
Forcible Entry muft be either
Manu forti,
Furnifhed with unufual Weapo
Menace of life or limb.
Breaking open door :
Contra , it feems, if door 01 latched,
Eje&ing forcibly the pofleflbrs
Cum multitudine gentium9ot\c n commit a Force , three at leaf Riot.
Ford
m*cw mvtm. i39
Pontile Detainer.
Menacing the Pofleflbr to go out |j>on pein of lofs of life or limb. \ Unufual Weapons or Company.
J. Refuting to admit the Juftice to
me in to view the Force.
Detainer with Force juftifiable,
K*e party in pofleffion Three
irs:
I But though his PofTeflion law- » yet if within die Three years ually removed , though reftored the Juftices , enables not a De- ler with Force.
But if the Three years Poffeflion h been by Force , then the laft able Detainer punifhable, and ders not Reftitution. f a Diffeifee within the Three rs make lawful Claim , this an eruption of his PofTeflion.
Reftitution.
140 #jeadjo£ tl)e ideate.
Refiitution.
I. By whom ?
i. Juftices B. R. may reft upon Indi&ment removed bef them.
z. One Juftice of Peace can reftore upon an Indidhnent bei them; nor Seffions of Peace, un upon Indidtment found at S ons.
3. It feems Juftices of Gaol Eli very or Oyer and Terminer , car Reftore.
t. How ?
Upon View.
Upon Indi&ment > Muft be fuificient, Adhuc extra tenet.
If Erroneous , may be fuperfi by the fame Juftice before Execu After it is Executed, then Re rel tipnin B.R. upon Indi&ment qi ed.
fl^eac|j of tije Peace. 141
Reftitutionyftytf//. By Certiorari. By quafliing Indi&ment. By pleading thereunto, which is neverthelefs in difcretion.
*Barretry*
142 Bjeacfjof tljel&eace*
Barretry.
Riding Armed,
Going Armed.
Vid. Stat. 20 £.2. c.i . 7 R%zxj % £.2.c. j. Stat .Northampton.
Nufanct
143
Nujantes.
3 Ridges Public k.
3 Are not chargeable upon a
rticular Perfon , but Ratione u-
r<e.
But of Common Right, repairable
the whole County.
The manner of Repairing directed
Stat.zz H.8,c.s.
High*
i44
High-ways.
High ways: Provisions, i. For their Enlarging an removing Trees within 200 Foot either fide.
13 E. 1. c.j . j El. c. 15. 2. For their Amending vide t Stat.
5 EL c. 13. 29 El, c. j. x ® 3P.JU.cX The C^rg<? of Repair of Hig ways lies of common right upon th Pariih wherein they are, unlefs,
1. A Special Prefcription caft upon another.
2, Unlefs the Owner of the Lan in which they are, inclofe it, then mud be caft upon the Owner.
But they that have Ditches on ther fide ought to fcour them, 8 i 7< J«
Inr
^tgfj'-toapaft 145
Inns.
jAle-houfes. Bawdy-houfes. ! Gaming houfc».
Common
146
Common Inns.
1. A Ny perfon may ered jfx Common Inn, fo kbe nc
ad nocUrnentuw.
1. In refpe&of their multitud
when there are enough at cient Inns before.
2. In refpecSt of the inconvc
nience of the £>lace or fici acion.
3. In refpecS: of Diforders thei
permitted.
AH which are Commo
Nufances, and may I
prefented and fined.
%. He that ereds a Common Ini
and refufes to entertain Guefts, ma
be Indi&ed and fined for the fame.
3. If a Common Inn, contrary t
Statute, fuffer perfons to tipple thei
as Ale houfes, he may be compelle
to be bound , or may be fupprefie
as Ale houfes, or may be indi&ed 2
Seflions,
Alt
147
Ale-boufes.
SEe for Alehoufes , the ftippref- fmgbf them,andthe punching of Tipling in them , 5 R 6. c. 2^. I jkc. c. 9* 4 y<ft\ c. j. 7 Jac* c. 10. ii jfjr. c. 7. I Cdr* c. 4. 3 Car. c* 3.
An Ale hbiife- keeper fupprefled, . according to the Stat of f£l.6.c.±fm by two Juftices, whereof one of the Quorum, cannot be allowed but in open Seffibns.
An Ale-houfekeepef fupprefled for the Offences ffac. c.18. 21 3W; c. 7. for differing Tipling, 01 7 jfac. f. 10. for felling lefs than is there directed, or 21 Jac. c. 7. for continu- ing drinking m another Ale-houfe, or 21 jac. for being drunk , cannot be licenfed in three years, and if he be, fuch Licenfe void.
5© 6 E.6, &i$.
None to fell Ale>&cuiilefs licenfed in open Seflions, or by two Juftices* dhe of t\\s Quorum.
L £ Peffoni
148 3ie-J)oufe&
Perfons licenfed to be bound by Recog. not to keep unlawful Games, and for ufing good Order.
Recog. return next Quarter Set fions.
Procefs upon Recognizance at Sef- fions.
Perfons unlicensed keeping Ale-
houfe imprifoned by two Juftices,
• one of the Quorum , for three days,
and till Recogn. given not to fell
Ale.
Certificate of fucli Recogn. Con* vi&ion, and Fine zos.
1 Jac. c 9.
Ale men, Inn-keeper or Vidtualer fuffering Inhabitant to fit tippling, forfeit 10 s. to the Poor.
Conviction before one Juftice,&c» by two Witnefles.
Penalties levied by Conftables, and Churchwardens by diftrefs and fale within fix days.
In default of diftrefs Offender committed till payment per Juftice.
Conftable, &c. neglecting to levy or ccrtifie default of diftrefs, forfeits 40 s.
4 Jac.
Per/on drunk forfeits £ s. to be paid within a Week aftfcr Conviction, to the Poor : If negledt , levy by Diftrefs , by Warrant from Juftice : If not able to pay , commit to Stocks for fix hours.
Conftable neglecting duty,forfeits 10 j. to the ufe of the Poor.
Any perfon fitting tippling, dvvel* ling in the lame Parifh, forf. 3 s. 4 cf. to Poor, proved before Juftice, levy per diftrefs, and for want of diftrels commit per Juftice to Houfe of Cor* re&ion.
Second Offence , bound to good Behaviour.
Conftables, &c. bound by Oaths to prefent Offences.
Punilhment within fix Months.
Former a<3: extend to Foreigners, as well zi Inhabitants.
One Witnels fuffice to convicSt, or view of Juftice,
Ale houfe fupprefs,nct Hcenfedfor^r three years, per Stat, 7 Jacx.io.
J- 3 I Gar.
1 Car. cap. 4. Former Statute I extend to Inn keepers and Ta- 1 verns.
Offences
i5i
Offences not Capital by Statute.
OFfences not Capital more par- ticularly by Statute.
Forgery by Stat, j EL c.14,
Perjury t and Subornation thereof, 5EI.C.9.
Champerty \ Embracery and Main- itnamet\L H.$.c.g.
L 4 In-
1 5 2 tfDffentsa; not Op £>tat
Tngrojfing^ Forejlalling, and Re- grating, yEtf.c.i^..
Salt Vi&ual within Statute.
Apples and Cherries, &c. no Vi* dual.
Mault feems not , but Corn and Grain exprefly Vidtual by y£/6.
A Stranger, or Subjed:, bringing Vi&ual into the Realm , may fell them in grofs , but the Vendee can- not ; neither may any ^Merchant buy within the Realm , and fell in grofs.
Attempting to inhance the price of Merchandize , a kind of Fore- Hailing.
Selling Corn in the Sheaf, unlaw- ful.
Matters
53
I Matters of Keligion*
REviling the Sacraments, Im- prifonment, Fine and Ratl- in, i E>6.c. 1. Repealed, i Max%z* [rived i El.c.j. z. Not coming to Church to hear >mmon Prayer, by y E.6. c.i.fub* 1 to Church Cenfares. tfota$E. 6. c. i. fetled a Book of mmon Prayer ; Injoyned the ufe : 'fufing to ufe it , ufing other, or praving it, Imprifbnment for fix onths for firft Offence , twelve onths for fecond , during life for id.
%E. 6.c. i. Alters the Prayers; t applies the Penalty to the new »ok.
'{ Nota, Repeal i Ma. that Repealed AJac.cz 5.
1 1 EL c. 2. Ena&s the ufe of the l)okof 5 £.6. with feme Alterations. I Any that,
1. Refufeto ufe it: z. Ufe another form :
3-Deprave
54 spatters of Religion*
3. Deprave it.
§. If Spiritual, fix Months Impn fonment firft Offence, one yea Imprifonment fecond Offence, Depi vation third Offence.
If Lay, firft Offence 12 Monti Imprifonment, fecond Offence duri) life.
Depraving Book of Comnn Prayer , firft Offence 100 Mart fecond Offence 400 Marks, *thi Offence forfeit Goods and Imprift ment during life.
& El. a. touching Confecrati Bifhops,
Concerning repair to Church.
1 El. 2. Every Sunday and Ho fay, fuh poena ixd. per diem.
§. 23 El, c. 1. 20 1. per men] for abfenting ; and il abfent twe Months upon Certificate, bound good Behaviour.
29 EL c. 2. Conviction of Re< fancy.
35 El. c. 1. Penalty of difluadi from Church , holding of Conv< tides , commit to Prifon withe bail until Conformity.
Nc
flpattctflf of meligiom 155
Nonconformity within three jonths after Convi&ion , fliall ab- e the Realm.
Not departing , or returning, Fe* ly without benefit of Clergy. ^Submitting, difcharged of the Be* :ty by this Ad:.
Relapfing lofeth the benefit of : SubmifBon.
Ten pounds per men/em for every (on retaining or relieving Recufant ?r Notice.
Cap. i, Recufents not to remove \ Miles from dwelling. i Jac. c. 4, Conformable Heir of lecufant difcharged : Third part :harged of forfeiture. Penalty of fending Children to linaries.
I Jac.c.4 *■ y- Penalty for refufing th of Supremacy. 1 El. a. 5 El. c. i.
Of Obedience, 3 Jac. c.4. 7 Jac. c.6.
Kings
15^
King's Bench.
N
Ow we come to confider the Proceeding againft a par for Felony, and therein,
i. Concerning the Jurifdiftion Court wherein Proceedings are to had in Capital Caufes; and tin are principally,
i. The King's Bench. 2*. Juftices of Gaol Delivery. 3. Juftices of Oyer and 7 miner and Aflizes.
4. The Sheriff and Coroner.
5. The Lord Steward of
Houfliold.
. The Kings Bench, the Suprej
Court of Criminal Jurifdi&ion. I
is a Court of Oyer and Termiil
Gaol Delivery, and Eyre , in il
County where it fits.
* Rep. £«»- By the coming of the King's Be i
?Ajr'$cafc. into any County, during the fit|
thereof in that County , all pol
and proceedings of Commifliol
of Oyer and Terminer is fufpen I
&tng'g jBentii* 157
J But a Special Commiffion of Oyer c *c. p.17. id Terminer bearing Tefle in the erm may be granted ; and King's pch may adjourn , and then they ay fit.
Where the King's Bench proceeds pon an Offence committed in the ne County, there need not fifteen, ys between the Tefle and Return the Venire facias : But if they oceed upon a Caufe removed by 9 ^ SaHa rtorari, they mult have fifteen <kar\ caf». ys.
Gaol
158
C.J ur. Courts ffsb hoc tituh.
Gaol Delivery.
1. jHlHe Juftices of Peace oi^i JL to deliver the Indi&mei not determined unto thofe Judg and they may Arraign any perfoni Prifon upon them.
z. They may take Indi<Stme againft any perfon in Prifon, and may Juftices of Oyer andTermir and herein they Jiave a concurr Jurifdi&ion.
3. They may take a Panhel turned by the Sheriff Without Precept.
4. They may deliver by Pro< mation perfons fufpe<9:ed,whete tb is'no Evidence to indidt them.
y. May award Execution of j fons in Prifon utlawed before Jufti of Peace,
6. May affign Coroner to an / peal, and make Procefe againft Appellee in a Foreign County.
7. May punifh thofe that undi bail Prifoners,Sta/. de Fwibus, 1 % Ph. & M& c.12.
8.ft
<2?aoi SPtiiberp* 1 59
8. May deliver the Gaol of per- bns committed for High Treafon.
9. May receive Appeals by Bill gainft perfbns in Prifon.
10. By Stat. 9 E.y 15+ muft fend heir Records into the Treafury of be Exchequer at Michaelmas.
it. Others may be added to the >rmer Commiffion by Commiffion f Aflbciation, or their power com- litted to fewer by Si non cmnes.
iz. By Stat. 2, fif 3 Pb. © Ma. ■18. a General Commiffion of Gaol fclivery through the County de- :rmines not a Special Commiffion anted in a Corporation,&c. parcel lereof.
13. By Stat. 1 E. 6. c. 7. the Hequent Commiffioners of Gaol elivery , power to give Judgment 30n fuch as were Reprieved before idgment by former Commiffioners id Procefs before any former Com- iffioners of Peace, Gaol Delivery, yer and Terminer , or others not (continued by granting new Cpmr- iflions.
If a Prifoner bs bailed , he is yet
in
i6o <2>aol $eltber?*
in Prifon to be Arraigned befor thefe Juftices, for he is a Prifonei contrary in cafe of Mainprize,2i h
Cr.jur.21d. Although their Commiflion di tfermine with their Seflion,af ter the are gone, they may command a R prieve or Execution , Dyer 20 £.
Licet foit ad Gaolum deliberandi* hac vice uncore pni* adjourner lo« Commiffion. Cr.JUr.226.
Commiffion d'Oyerj® Terminer, i Gaol Delivery , pnt9 Efioyer enfembi lbid.Bro.Commiflion 24.
Juftices de Gaol Delivery & Oy & Terminer , pnt7 enquire per ami deux powers , and make up their Rl cords accordingly, 9 H.7. 9. Cr. jfi 226.
o>
Oyer and Terminer.
i. r THHe Juftices Authority muft JL be by Commiffion , and not by Writ , othcrwife their Pro- ceedings void. ^zAjf.iz.
l.They cannot proceed but upon in Indidtment taken before them* elves.
3. By good Opinion they may >roceed the fame Day or Seffion igainft a party Indi&ed before them. Sbta le contrar ad ejire adjudge.
4. Where Offences are limited to e heard and determined in any lourt of Record, generally it may e heard and determined by them. >4*re, for Gregorys Cafe contra. rid.Dyerz$6.
5. Others may be added, or their ower contra&ed by AfTocxation, or inonomnes, as before.
6. One fitting without Adjourn* tent determines their Commiffion.
M 7Jufti$es
i*2 ®pet anti terminer*
7. Juftices of Oyer and Terminer or of Peace , cannot aflign a Coroi ner, as Juftices of Gaol Delivery may.
8. By Stat. gE. 3. they are alft to fend their Records determined intcj the Exchequer.
f.iaAfei. 9. A Suferfedeas fufpends thei power, and a Procedendo revives it but a new Commiflion determine ic; the like of Commiflion of Ntj pr/us,&c.but it determines not with out Notice.
1. By ftiewing the new Com miflion. v.afcjp.& 2t Or proclaiming it in th County. 3» Or Seflions held by nev Commiflion.
10. An Award upon the Roll no fufficient to return a Jury , but s Precept under Seal of the Commit fioners.
11. And Not a, That a Specia Commiflion of Oyer and Terminei may be granted to fit in one Count) to hear and determine Trealbns, &c in another, but then the Indi&mem
mud,
M.c. 1 9.
£Dper anD %ttmitmf % $$
mud be found in proper County f
and the Trial by Jurors of proper ,
County. CPC.fo.zj>
M % fu/lim
i64
fujlices of Affile]
BY Stat %7 E. i. c. 3. definilui Juftices of Affize have power] to deliver Gaols of Felons and Miir-j therers.
And by fome Opinion they may do it virtute Officii, without any Special Commiffion. S.PGx. $.
But in cafe of Counterfeiting! Coin,&c» xx^onStat. ? H$. Stat.z. c 7. they muft have a Special Com- miffion.
fuUices
*6$
fufiices ofTeace.
nr^He Statute of 18 E. 3. c. z.
1 gives them t power by Com- million to hear and determine Fes lonies and Trefpafles againft the Peace.
But then there muft be a fpecials.pc.L,2,c,j. Claufe in their Cqmmiflion, Necnon ad atuP & termlnancT felonias , @c. Otherwife they cannot do it.
Yet that Claufe doth not in pro- priety make the Juftices of Peace Juftices of Oyer and Terminer , be- caule that it is a diftindJ: Commiffi* on 5 and therefore a Statute, as that of 5 EL c. 14. limiting Forgery toVCPCcl4# be heard and determined before Ju^Dai.c.20. ftices of Oyer and Terminer , gives5 ReP-il8- not the power therein to Juftices of Peace ; but the Juftices of the King's Bench are Juftices of Oyer and Ter* miner within this Statute,
By force of the general words of their Commiffion , they may en- Dy. 6% quire pi Murtherat their Seffions ;♦ tor though by Stat* 6 £. 1. c. 9. M 3 and
166 Stotttces of $mt.
and 4 £.3. Murthers - and othef Homicides mud (lay till Gaol Deli- very i yet the Stat, of 18 E. 3. c.z. 34 E. 3. c. 1. 17 /?♦ x. c. 10. hath enlarged their Commiflion and Power.
Yet in refpedt the Stat. 1 & x ?h* & Ma.c.i$. diredts Juftices of Peace to take Examinations in Cafes of Homicide and other Felonies, and to certifie them to the Juftices of Gaol Delivery : In point of Difcretion they do forbear to proceed to determine great Felonies. Dalt. c.to. gut for petit Larceny, and other fmall Felonies, they ule to bind over the Profecutor to the Seffions.
The Juftices of Peace may pro- ceed upon Indi&ments taken before themfelves , or former Juftices of By5t*/44&3. Peace : but cannot proceed upon PH Indidtments before Coroner, or Oyer
and Terminer ; but Juftices of Gaol Delivery may ; and the Juftices of Peace are to deliver the Indictments jraken before them to the Juftices ♦of Gaol Delivery;, by Stat. 4E. 3. t.i.
They
Radices of #eace* \6j
They cannot deliver perfbns fiif- Crom fa * ped by Proclamation, as Juftices of Gaol Delivery may.
hi Cafes of Felonies by Statute limited to be heard before Juftices of Peace, they may proceed at Se(: fions; and confequently may bind over Informers,anci certifie Exami- nations at Sefllons.
But fuch Felonies by Statute as are fpecially limited to Juftices of Oyer and Terminer , or other Jufti* ces and not to them, the Juftices of Peace cannot proceed to take In* didments , as upon Stat. 3 Ht 7.
18. for contriving to deftroy the King,&c* upon Stat. 1$H.$. c.iz. Murtherers in the King's Palace,- upon Stat. 8 H> 6. c. 12. of razing or imbezelling Records ; upon Stat.
EL c. of Forgery ; upon Stat. ij/7. 6. c, iv fecret imbezelling *oods, &c. up Stat, z & 3 £</. 6. 24. ftriken in one City, and dies n another, or acceflbry in another County.
But in the [former ca(e3 it fecmSDaicso. ;hey may take the Examinations, M 4 and
i6% gutttcesoE #eace*
and commit the Offenders, and bind over Profecutors.
If any Indi&ment be taken before Jufticesof Oyer and Terminer, Gaol Delivery, or Coroner, they cannot proceed upon them ; but upon In- dictments taken before the Sheriff in his Turn, they may proceed by Stat, i E.^x.%.'
In cafes of Treafqn, Mifprifion of Treafbn or Premunire , regularly Juftices of Peace have no Jurifdi&i- pn ; yet two things may be (done :
Dale .50, 1. In any cafe of Treafon>becaufe
if is a breach of the Peace,they may upon complaint imprifbn Offenders, take Examinations, bind Profecutors over, and certifie their Proceedings into King's Bench or Gaol Delivery. 2. In fbme cafes they are enabled
PaJ.c. 2. tQ taj;e indictments, but not to hear and determine the fame, but certifie the fame into the King s Bench, upon Stat.oi 5 & 23 EL
1. Maintainer of Authority of the See of Rome,
2. Obtaining Bulls,&c-
j.Witiv
3lutttcesf of ptm. \6$
j. Withdrawing from Allegi- ance. 4. Bringing in Agnus Dei, &c. A perfon bringing one before a uftice, fufpedl of Felony, and refu- ing to be bound to profecute , may •e Committed , if it appear he can flifie materially.
They may Enquire of any Felony within the County, though within le Verge. 4 RJViggs Cafe.
Com
ner.
170
Coroner*
H
Ath power in three Cafes : 1. To take Indi&ments Death; but this he can only fuper vifum corporis, otherwife void Hence,
st.vcso.si. 1. If the Body be interred b<
fore he come, theTownfhii
amerced, and he muft dig
up the Body ; fo if tt
Townfhip fuffer the Bod
to lie long to Putrefa&ior
without fending for the Cc
roner: The like of one dyin
in Prilon.
a. If the Coroner be remiC
and comes not being fen
for , he fhall be fined am
imprifoned.
3. He may enquire of flight and fuch Prefentment no Traverfable.
4. If the Body cannot be feer the Juftices of the Peacd may enquire thereof.
2J$fk
Cojonet* i7i
ttota, The Record of the Coronet
of great Authority; if he Record a
lonfeffion of a Felony by Approver,
a Confefiion of breach of Prilbn,
an Abjuration^t ihaJl not be Tra
Mtd.
5. Jury dnt9 Coroner acquit per/on rife dnS enquire quis occidit, 1 \ E4, 14 H.7.2.
And it feems by fome he hath >wer |to enquire of Rape, Breach Prilbn.
He hath JuriftJi&ion upon Arms the Sea , where a man may fee >m fide to fide. x. Concerning Appeals. The Coroner , together with the erifF, hath power in the County >urt to receive Appeals of Robbe-c _„ and other Felonies: But then jtstPCfo'ya' uft be of a Felony in the fame )unty : Upon this Appeal they may .jant Procefs till Utlary ; but it feems" ley cannot fend an Exigent ,becaufe J ohibited by Stat.o{Mag£hart.c. 1 7. I Such Appeal may be by Bill ; and St-?° fo ^' itnay be removed into King s Bench I Certiorari, but it muft iflue both
to
172 Coroner*
to Sheriff and Coroner, and not t:| Sheriff only.
It appears by Stat. 3 Ff.y.c.i.Th an Appeal of Murther by Bill , li< before Sheriff and Coroner.
3. The Coroner alone may tal the Appeal of any approver of Felony in any County.
stPCf si* ^ut c^en *ie cannot make Ptoct thereupon, but enter it in his Ro and fend it to the Juftices of Ga Delivery, who thereupon may ifli their Procefs to the Sheriff of t foreign County, to take the Appc lee.
4. To take the Aljur&tion of hi that acknowledges a Felony done the fame County, or any other.
And note, That though more C roners than one in any County, y any one may exercife any of ti Powers before.
But the Prefentment of him th is firft taken fiands.
Sherij
i73
Sheriff.
rHe Power of the Sheriff to take Indictments, was either irtute Commijfionis , which is taken vayby the Stat.zS E.yc.9.
Officii ; in his Turn : wherein,
1. The Turns muft be held infra $tPC. £4s. en/em Pafch/e & Michaelis; other-
ife the Indictments there are void rStat. 3 1 E.y c.i 4.
2. The Indi&ments muft be un- * Seal of the Jury by Statute of rejim. 2. c» 13. indented per Stat. £♦3. c.i 7. and the fame for Lords f Franchifes.
3. The Indicators muft be of good iame,having 20 s. Freeholder 26 s.
</♦ Copyhold ; otherwife Sheriff unifliable by Stat. 1 R.$c 4.
4. TheTuun can take no Indid:- lent but of that which is Felony by iommon Law, or of fuch Matters 5 are particularly by Ad; of Parlia- tent limited to them, and there- fore
i74 * £wn*
fore an Indictment of Rape voj there.
5. Upon any Indi&ment of Felc ny before the Sheriff in his Turf, they can make out no Procefs, bu mull fend them to the Juftices < Peace, who have power to procee thereupon as if taken before then felves, by Stat, i £4. c.%.
Court
175
Court-Leet.
*
THHc Court-Lett hath in effe&
1 the feme Jurifdi&ion with the
urn ; but Preferments of Felony
efore them are to be fent before
uftices of Gaol Delivery, 3 /Z.4.18
The
17*
1
77>£ w^j 0^" bringing Cal pital Offender* to Tria.
HAving confidcred the Couri of Juftice, now we come t confider the means of bringing C pital Offenders to i their Trial ; an that is Regularly by one of the three ways ;
Appeal.
Approver.
Indi&ment.
And herein fome things are prop to each proceeding.
§. Some things are common
them all , which come to be con
deted after Particulars, proper
either, difpatched/ivz.
Procefs. ,
Arraignment ; and therein of Prii
cipal and Acceflbry. Demeanour of the Party A raigned ;
Scandir
Capital Offenders to trial. 177
Standing Mute. C^nfeffing. •Pkading and Pleas.
Declinatory^ SancStuary,
Clergy. '
In Bar, Pardon.
Auterfoits Acquit, Auterfoits ConviEti
To the Felony, Trial. By Battel,
By Jury, and therein Procefs againft the
Jury. Challenge. Evidence. Verdid.
By Peers, in cafe of Nobility.
ft. Judg-
I
7 8 Capital iSDffentiers! to t«al I
Judgment in the fevcral Cafei
Capital-
^ I
Execution. #^ Reprieve. Falfifier* By Error. By Plea.
Appeal
I7<?
Appeal.
Appeals in refped of the manner of proceeding, are of two kinds
i. By Writ
%. By Bill.
touching Appeals hyRill, they hfiay be profecuted.
i. In the King's Bench againft my that is in cufiodia Marefcalli , or let to bail : they are the Sovereign 3oroners»
2. In the Court before CommiC !oners of Gaol Delivery againft a ^rifoner, or one let to bail, but not* )f one let to Mainprize.
But if one of the Appellees abfent, remove in 5./?. by Certiorari.
3. By fbme other Juflices of Peace , quod Qumre 44 E. 3. Cor on
4. Before Sheriff and Coroner, as before ; and it may be removed by
ertiorari in B.R. 3 H.7. c. 1.
N ^ j,Be-
180 appeal*
j. Before the Conftable and Mar i dial, of a Felony done out of th<i Realm, 1U.4s.14.
In relation to the Matter.
Appeals are in Matter,
1. Not Capital, as an Appeal o Maihem, which may be commencec in King's Bench, Gaol Delivery, 0 before Coroner and Sheriff
This, though it be felonice; yet i but aTrefpafs in its Nature and Judg ment.
2. Capital; and that either*, x. Of Treafon; but this ouftec
hy Stat. 1 H.4.C.14. %. Of Felony ; and thefe of thre<
kinds : i. Of Death. z. Of Larceny* 3, Of Rape, -
Appeal
i8i
Appeal of Death.
AN Appeal of Death is either by the Wife or Heir. i. Appeal of Death by the Wife ; and therein thefe requifite :
1. She ought to be a Wife de jure , and not de fatto on*
ly; and therefore ne unque accouple a good Plea.
2. But ihe need not be dow- able ; for if Ihe had Elo- ped, or the Husband been Attaint; yet fhe may have an Appeal of his death.
3. She ought to continue his Widow ; for if ihe marry before, or pending the Ap- peal, the Appeal fails for ever ; or if ihe marry after Judgment, ihe cannot have Execution.
2. Appeal of Death by the Heir.
1. If the dead hath a Wife , the
Heir fhall not have Appeal
though ihe die within the
year: But if the Wife
N 3 Mi
1 8? appeal.
kill the Husband, there the! Heir ftiall have an Ap- peal.
z. He muft be Heir by courfe
of Common Law ; this hath
thefe Exceptions :
i. Where Heir is di&bled b)
Attainder, x. Where the Appeal is againf the Heir ; in thefe cafes i goes to the next Heir, as i the other were dead withou Iflue.
3. It mull be by Heir that wa Heir at time of death c Anceftor ; for if he di within the year before , c after Appeal commenced, is loft.
But it feems, if the Heir haviti
. Judgment dk, his Heir ma
have Execution.
4. It muft be an Heir an Male ; Nu/ius capiatu propr Appellum fcemin* alterius quam vlri fui : Bl if he be Heir, and Mal< though he derive tbroug
Female,
appeal* 183
Females, he may have an0, Lit" Appeal.
j. A man above Seventy , or an Infant , may have Ap- peal 5 but no Battel waged, and adjudged of late times the Parol fliall not Demur SedQ&are.
But an Idiot, Monk, or Man mute, ihall have no Appeal, neither of death, nor other- wife.
And Note, the Appeal of death c*c**- muft be within year and day after death by Stat, 3 E. 6. c.x4. ftriken in one County , and dies in ano- ther; or Acceffory in one County, to death in ano- ther: Appeal brought where party died.
N 4 Apped
?84 SlpjaeaU
Appeal of Rolbery.
Servant robbed, Mafter or Servant may have Appeal.
But Teftator robbed , Executors fliall not have Appeal.
Villain lhall not have Appeal of Robbery againft his Lord ; contra pf Death.
Two joint Owners robbed , Sur- vivor fhall have Appeal.
A Woman or Infant fliall have an Appeal of Robbery.
If a man be robbed at feveral times, he muft put all into one Appeal.
What omitted is Gonfifcate.
The Appeal affirms the continu- \ ation of the property. Therefore if
A* rob B. in the County of S. and go with the Goods into the County o£ D. an Appeal of Larceny lies in the County of D. but not of Rob- bery, for that is upon a taking from the perfon.
If A. be robbed by B. who is rob- bed by c A. may have an Appeal ol Larceny againft C. { x This
appeal, ig5
This Appeal may be profecuted <n a year, two, or three, if there was. frelh Suit; and the judging of frefli Suit lies in the difcretion of the Court.
And Note, This, or any other Appeal lies againfl an Infant, againft i Monk, without naming his Sove- eign, againft a Feme covert without laming her Husband,
typed
i8£ appeal*
Appeal of Rape.
i
Appeal of Rape.
Lies for the party ravilhed.
x. But if flie confented to til Rape afterwards, then by Stat.6 h 2. c. it is given to the Husband none, to the Father; if none, to th Heir, whether Male or Female.
If flie be taken in one Count] and ravifhed in another, the Appe; of Rape lies in that County whei a&ually ravifhed.
Although by Stat. W. r. c. i whereby Rape was turned into Tre pafs, forty days is limited for he Suit; yet it being again madcFeJoo by Stat, W. z. c. and no time limite for it, it may be brought in any res fonable time.
Pr$ceJ
appeal* 187
Procefs in Appeal,
Concerning Procefs in Appeals, pi. infra Procefs in general , becaufe many things therein common to Appeals and Indi&ments.
The Count in an Appeal.
1. The Plaintiff in his Appeai muft mention the place and day ; tieed not mention the hour ; and •hough day be miftaken, not mate- ial upon Evidence.
2. It fufficcth for Plaintiff to :ount againft Defendant , according :o the conftru&ion that the Law naketh upon the Fad.
If A.B.' and C. prefent, and£. 3nly flrike the mortal flroke, he may count againft them all , that :hey flrook : So in Rape.
3. An Appeal by Heir ought to hew Content \
4. In Appeal of Rape , felonice ^apuit fuificient, without faying car-
taliter cognovit, vid.11 H.4.1.
5. In
1 88 appeal*
j. In Appeal againft A.B. and C.A only appears, he muft count againfl| all by the better Opinion.
6. At this day but one Appeal againft all Principals and Acceflbries , and if an Appeal be againft A. anc he is attaint or acquit , or Plaintif non-fiiit, he cannot have anothei Appeal againft 5. But if Accefibry in one County to Felony in another there feveral Appeals againft Princi pal and Acceflbries.
Pleas
appeal* 1 8;
Pleas to the Writ and in Bar.
Writ of Appeal abate,
i. For infuiBciency in the Writ, is wanting rapuit, falfe Latin* &c.
2. Multiplicity of A&ion; a fe- :ond Writ of Appeal purchafed , >ending a former Writ abates ; but f pending a former in the County bates not.
But if the firft Appeal by Bill be amoved into the Bench by Certio- m9 and the Plaintiff had appeared lereupon, and counted, abates the :cond Writ,
Nul ttel in rerum natura , as one
the Defendants, abates vers tout s,
Pleas
1^0
3ppeaL
Pleas in Bar.
Pid. infra in ceo general Title, asfc Autrefoits Conviil or Acquit. cpc. <>8. i. He may plead any thin
whereby it appears the Plaintiff not intituled to the Appeal , de qi v.fupra.
z. Nonfuit in a former Appe; after Declaration, fo of a Retraxit.
3. The'Plaintiff brought an A] peal of the fame Felony againft ant ther, who was acquit or attaint at h Suit.
4. Plaintiff hath releafed to D fendant; but if Appeal againft D vorce , a Releafe or Retraxit as 1 one, no bar for the other.
5-. If Defendant plead in Bar , l\ may alfo plead over to the Felon; | and itfhall not be double.
1. But in cafe of a Releal pleaded, he fliall not plea over to the Felony, becau; repugnant.
1.1
appeal*
In cafe of Villenage pleaded he fhall not plead to the Felony, becaufe Infranchife- ment ; yet if that bar found againft him, he may plead Not Guilty ; and fb in any other cafe where he pleads in bar without pleading over, except Releafe.
I? I
Approver;
IS2
Approver.
i SSSi *• WHat ic is to be att A?
I V V provcr >
A perfon indi&ed of Treafon o Felony not difabled to accufe befor competent Judges , confeffing th Indi&ment, and fworn to reveal a Treafbns and Felonies he know* and then before a doroner entrin his Appeal againfl: partkipes Cr> minis in the Indidtment within th Realm.
z. Who may be an Approver,an who not >
f % A Peer of the Realm cannc be an Approver.
2. A perfon Attaint cannot t
an Approver; nor a pe fdn out of Prifbn, thoug indicted.
3. A Woman , Infant, Idiot Non compos , Clerk , cannc be Approver.
4. But a Man above fevcnty or maimed may, but h ihall not wage Battel.
5. Clerl
f. Clerk Cdnvift may. 3. In what cafes ?
1. None can approve but an indi&ed ; and therefore if only in Prifbn upon fufpici- on, he may indeed confefs the Felony, but fuch Con- feffion amounteth not to an Attainder or Convicti- on , though it be an Evi- dence, and therefore cannot approve.
2. The Appellee in Appeal cannot be an Approver.
3. Appellee of Approver can- not be Approver * for that would be infinite.
4; Though a perfon Indi&ed approve , yet if after an Appeal be againft him, the Approvement ceafeth. y. He that hath once pleaded to the Felony cannot be Approver , but fhall be hanged , for he is found falfe, 4 Of what Offences t
it
i<?4 applet*.
It mud be only of the Offences contained in the Indi&ment , be it Felony or Treafon, and therefore not of another Offence , nor of an Acceflbry before or after to the fame Offence ; yet his Oath general therefore as to other Offences , it it but a Detedion , not an approve ment.
5. Before whom? Before fuch Judges only as cai affign a Coroner , as King's Bench Gaol Delivery, Oyer and Terminer High Steward ; but not before Ju ftices of Peace, Court Baron , 0 County Court.
But it is in the discretion of th< Court either to fuffer him to be Ap prover , or to refpit Judgment am Execution, till he hath Convi&ed aJ his Partners. >6« How Demefned after Appeal > 1. After Felony confefled up. on the Arraignment, a Co roner affigned and fwori in Court to difcover Offen ders-
2. l
a. A day prefix'd , within which he is to perfect his Appeal before the Coroner , and in every of thofe days he muft Appeal ; for if he fail in any , and the Coro- ner record it, he is to be hanged.
The time limited to perfed his Appeal by j E. 2. e. 34. is three days, but that Re- pealed 15 2£ 2.
3. During the time limited for his Appeal , he fhall be at large, and have 1 d. per diem till his Appeal finifli- ed.
4. If he Appeal perfons be- yond Sea, or fuch as are not in rerum natura, and that appear by Teftimony of Country, or by Retorn of Sheriff quod non fuit invent9 9 he (hall be hanged.
5. After his Appeal formed before the Coroner, he muft repeat it verbatim before the Court ; and if he fail
Q 2 thereof,
*9* 2lpp?otw*
thereof, and the Coroner Record it, he lhall be hang- ed. 7. Procefi in Appeal.
1. In the fame County the Coroner may award Procels to the Sheriff, till Exigent.
2. If Appellee be in a foreign County , then the Judges before whom the Appeal is, may grant Procefs, viz.B- R.
£PGf.i4tf. or Itinerant by Common
Law ; and by Statute of 28 Ed i- de Appellatu , the Juftices of Gaol Delivery may lend Procefs into a Foreign County , as well to apprehend the Appellee , as a Venire facias to try the ..Ifliie. 8. Proceeding upon Trial. The Appellee may put himfeli upon the Country, or wage Battel.
If five Appellees, and they wage Battel, he mull fight them all.
If two Approvers againft one Ap- pellee, if the Appellee vanquifli the £rft, he is acquitted againft the reft
though
XpploUt. l97
though Appellor retraft his Appeal, or be vanquifhed ; yet if the Otfence be within Clergy, he fhallhaveit; pid (b of the Appellee. 9. Proceeding after Trial. If the Appell^ convid the Ap- pellee , either by Battel or Verdict, the King ex merito jujlititf is to par- don him ; and from the time of his Appeal till his Pardon or Convi<5Hon3 )ught to have wages.
o5
IndiB*
i5>8
IndiBments.
THefe things considerable : i. Where *h Indi&ment re- quifite in cafes Capital , and where not.
x. What the quality of Indi&ors.
3. Of what Matters they may Enquire.
4. Before whom found, j. What requifite in the manner of
them.
1. Where an Indictment requifite for a party to be Arraigned at the King's Suit.
1 . By the Ancient Law , if a man was taken in Larceny with the manner , and that brought into Court with the Prifoner, the Prifbner fliould bp Arraigned thereupon without any Indi&ment. Stat. PC
/148."
And fuch was the ufe of thofe
Manors that had Infangthef. Ibid. fzg. Fid. 1 E 3. 17. 17 Af 49. bup ihf$ difiufed-
3JnDirtment& 1^9
x If Trefpafs be brought de mu- spc£s>4* Here ah duel a cum honh viri, and the Defendant found Guilty1: Or if in Trefpafs for Goods the Defendant be found that he ftole them ; this in the King's Bencfo equivalent to an Indictment, and the Defendant put to anfwer to the Felony.
3. In (bme Cafes upon Appeals, by Appellors or Approvers not pro- fecuting , &c- the Defendant ar- raigned at the King's Suit; becaufe it carries a preemption of Truth; and therefore if the Defendant be both Appealed and Indited upon a Non-profecution of the Appeal, thf party fliall be arraigned upon the Ap- peal,not the Indictment. 4 £-410. Wherein,
1. If the Plaintiff in Appeal by s.pc. f.148. Writ be Nonfuit before Declarati* an, he fhall not be arraigned at the King's Suit, i- Becaufe no certain* ry. 2. The Writ may be at ano- :hers Suit , but if it be by Bill ei- :her by Appellor or Approver , it !eems he fliall, becaufe the certainty ippeafs 5 therefore in the former O 4 Cafe,
200 JnDielmeittflf*
Cafe , if there be no Indi&ment againft him, he is difmifled.
2. If the Plaintiff releafe his Ap- peal after he hath commenced it, the party fhall be arraigned at King's Suit: But if before it was com- menced , then not ; becaufe it was never well commenced.
3. If the Plaintiff or Approver, after Appeal commenced, confels it falfe, or take to his Clergy, or wave his Appeal , yet arraigned at the Suit of the King : But if the Appro- ver after Battel joyned do in the field confefs it falfe , the Appellor hang'd, and the Appellee difcharged, feecaufe amounts to a vanquilhment.
4> If the Appeal abate byAdt of the Plaintiff,as taking Husband ; or a<ft in Law, as death ; Appellee ar- ranged at the King's Suit: But if it abate by infufficiency in the Appeal, as by falfe Latin, Mifnofmer, or be- caufe Plaintiff difabled to commence Appeal,as Udary of Felony, or TreP pafs ; or tlie year and day pafl: ; or Plaintiff not Wife or Heir; Defendant, hot arraigned upon Appeal, but ma^ hclndidcd. ': " %M
^jnfeitf mental 201
5*. If the King pardon after Bat- tel joyned in Appeal by Approver, no Arraignment at King's Suit, but Appellee difcharged.
And Note, where the Pri(bnerst.PC.io4. irraigned upon the Appeal , a Cejjet Procejfus entred upon the Indid:* nent.
The Retorn of the Sheriff of s.pc iefcue or Efcape of a Felon , not uiEcient to put the party to anfwer :he Felony.
2. The fecond thing confidcrable, S the quality of the Indiftor*
Concerning Indictments in Leets nd Turns , vide ante upon Stat. K2.C.13.1 2? 3.C.17.1 R.yc.4. 1 E.4.
There is a General Statute that&PGfi n- efers to all Indi&ors, as well in cafe ►f Felony as Treafon, 1 1 //. 4. c. 9. vhich requires, 1. Indi&ors not to be, ii Perfons fled to Sanduary for Felony or Treafon.
2. Not Outlawed.
3. Not Indi&ed or Attainted,
4. Not by Confpiracy.
a.That
202 3ttDtrtment&
x- That the Indi&ors be the King's Liege People.
3. Returned by the Sheriff, ot Bailiffs of Franchifes.
4. Not at the nomination of any perfon.
And all IndicStments taken con trary void.
Hence it follows :
1. That the Prifoner upon hit Arraignment may plead this matter or any Point of the Statute , am may plead over to the Felony. Fid Scarlet's Cafe.
z. Though there be twenty of th Grand Jury, yet if one was out lawed or taken at the nomination 0 another, it avoids the whole IndiS ment.
By Stat. 3 H. 8. c. iz. Juftices c Gaol Delivery, or of Peace, where of one of the Quorum, in open Sefli ons, may reform the Panel of th Grand Jury,by putting in and takinj out Names , and the Sheriff* is to re turn the Pannel fo reformed.
But this takes not away the for, mer Statute of 1 1 //. 4 nor alters it
By Stat.3 3 H6ci.
Special provifion is made for the juality of the Jndi&ors in Lama- hire-
y Of which things they can Er* luire.
Regularly they can Enquire of othing but what arifeth within the tody of the County, for which they re retorned.
And therefore if an Indidtment for Scandalous Words, or other mat* £ tranfitory be found upon Not ruilcy pleaded thereunto , if upon vidence it appear to be fpoken in tiother County , the Defendant is ot guilty.
And therefore where Stroke was 1 one County , and Death in ano* ler, he could not be Indi&ed where arty died.
But for a Nufance in one County ) another , a Jury of the County 'here Nufance is committed may idi& it.
But divers Statutes have Intro* uced an alteration of the Law in >me Capital Cafes, 1% H. 8c 15-.
Trea*
2o4 3Jnfctrtment&
Treafons, Felonies, Robberies, Mur- thers and Confederacies upon the Sea may be enquired, tried, heard, determined , and judged in fuch Shires and places as fliall be limited by the King's Commiffion to be di- rected for the fame.
ATreafon done out of the Land it hath been held that it may be en quired of and tried where the Of fender had Lands ; but to avoid the Queftion by Stat. 35/7.8. c. %. al Treafons and Mifprifions , or con cealments of Treafons done out o: England ', may be enquired , heard and determined by the Juftices 0 the King's Bench, by perfons of th< County where the Bench fits , oi before Commiffioners , and in fuel Shires as fliall be appointed by the King's Commiflion , by good met of the fame Shire , as if the Trea fbns,&c. had been done in the lame Shire where inquired. Upon this Statute. se.PG£7i. '• tf l"he Bench remove after In
di&ment into another County, the Trial fliall be by perfons of the firfl County. x.TIk
3fa&tctment& 205
z. Tho King's writing his Name
0 the Commiffion , or putting his Signature to the Warrant , fuffici- :nt.
3» Ireland is out of the Realm to his purpofe.
Theft Statutes ftand unrepealed Cpc a+- j Stat, of 1 Max, but the Stat, of z i7«8. ^4. for trial of Trealbn in Vales, repealed by i Ma.
Again, by Stat, z & ^ El. c. 24. C.PC. 4P,
man ftricken in the County of D. ies in the County of S. or Acceflbry
1 one County to Felony in another bounty , may be indidted and tried 1 the County where the death was, r Felony committed by the Princi- al ; but it muft be laid according to uth;
If Inquefl conceal any matter refentable before Juftice. of Peace, iey may impannel Inquefl: to en- uire of fuch Concealments , and merce the Concealers,by Stat 3 H.
4. Before whom found. Of this before.
j.The
%o6 ^Intitctmenta?*
p The form of Indictments-
fcPC l-BlTSfat»tel:rJ.
4 H'4-oz* Infwtatores viarun
($ depopulatores agrorum, H
be omitted in Indictments
and if inferred, yet Clerg]
not thereby taken away.
37^/8- c 8 Indictment nc
to be quaflied for want c
the words, viz. gladiis, lc\
cutis, & cultellis.
2. At Common Law :
i. 'Want of certainty .., vitiates
want of year, day and place.
Indictment for Eftape of one t;
ken on fufpicion of Felony, withoi
Ihewing what Felony, Male-
Indictment for receipt of a Felot
Without fhewing who received,.^
Indictment ad magnam Curiam t
Let am, Male. +
Indictment for making Alchiro
ad inftar pecuniae Regis , withoi
fliewing what Mony, Male.
Indictment quod communis Mai
faftor , without fliewing wherein
Male.
IndiCtment quod cepit , otfuratu
4
3ntittment& 207
ft, without faying felonke ; abduxit 'quum, without faying cepit ; or car- taliter cognovit, without faying Ra- mit ; or bur gar iter, when it fhould »e Burglar iter ; or if Felony before uftice of Peace , without faying ecnon ad diver fas felonias,&c, or eforexhe Mayor of London without lying & Corcnatcre ; or of a Mur- lier with a Gun , without faying crcujfit, Male- Indi&ment fuppofing the Stroak, Augufti , death x Augufti y & fic Jonice murdravit i Augufti , Male* Ut fie murdtavit modo & forma #d\ or pr*<F 2 Augufti, Bene. Indi&ment, quod dedit mortalem !agam circa peftus , Male : But , in nftra parte ventris circa umleli- m, Bene*
tJndid:ment de morte cujufdam not i, or felonke cepit bona, &c- cu- [dam ignoti , or domus & Ecclefite, time of Vacation, good. Indictment of Poyfoning withcpGc.*a. veral forts of Poyfon, without ewing of which he died : good.
6.Proof
2o8 3tottctment0*
6. Proof upon Indittments,
In cafe of Treafon and Mifprifio by the Stat, i E. 6. c. 12. & $E.6t c. ii. there ought to betwolawfu Accufers, that is, WitnefTes upoi every Indi&ment.
CPC.24. An Accufer by hearfay, is no law
ful Accufer within this Statute.
The neceffity of fuch Proof upoi Indictment of Treafon, is not take away by Stat. 1 E> i# z> i& zPt ® Ma.e.ii. but only in the cafe ( counterfeiting Coin.
st.?c.i6+. But thefe Witnefles need not b prefent with the Indi&ors , but the may fend it to them in writing.
Procej
20p
Troce/s.
NOw we come to thofe Pro» ceedings that for the moft part are common both to Appeals and Indi&ments. And, i« Of Procefs,
i. Upon an Indi&ment or Appeal of Death but one Capias, and then Exigent: but in cafe of Robbery, then by Stat. 2 j E. 3.C. 14. two Capias's, then Exigent; but this Stat, extends not to death, x. But Indi&ments or Appeals of Treafbn, or any Felony, or Trefpaft againft a per/on of another County after one Cap9 a fecond Cap9 with Pro- B claimtions, {hall be granted to the Sheriff of that County wherein he is (up- pofed to be converlant be? fore an Exigent fliall iflue by Stat. 8 H.6. c. 10. And P upon
upon this Statute Proccfs fhall go to a County Paht* tine ; and if in the Indict- ment he be ftyled nuper Je D. and fo in feveral Coun- ties , the fecond Caf fliall go to every County. s.?c-£.6j: ?• In Appeal or Indi&ment
againft Principal and Accef- fory , by Stat. W. I. c. 14. Procefs of Utlary mud flay againft Acceflbry till Prin- cipal attaint.
But if it be an Appeal ly Writ which is general till Decla- ration , the Plaintiff muft at his peril diftinguifh the Procefs y for if he take his Exigent againft all, he muft Count againft all as Princi- pals.
An Appeal againft divers, one appears and pleads .to the Writ, or in Bar, which goes to all , Procefs of Utlary fliall ftay againft the reft till Plea determined.
An
An Indi&ment or Appeal may be removed in B. R. by Cer- tiorari, but it mud accord with the Appeal.
Upon an Appeal removed by Certiorari , the Plaintiff is without day ; and to compel the Plaintiff" to proceed, the Defendant may take out a Scire facias, and upon two Nihils or a Scire feci , and default, Defendant difcharg- ed.
But the Plaintiff upon fuch Appeal removed, may have Capias & Exigent.
if the Defendant conies in by Capias , and after appear- ance make default , a new Capias; if upon Exigent, & new Exigent; and upon fe- cond appearance {hall plead de novo , for the firft Iflue and Inqueft is fine die.
P % Arraign*
2ii
212
Arraignment.
i, TN what manner a Perfon is to
JL, be Arraigned ?
The Prifoner , at the time of his Arraignment ought not to be in Irons. stvcs.66. x. Where arraigned uponfeveral Appeals or Indictments.
If a man be indi&ed or appealed of Robbery or Death at the Suit of one, he ihall be arraigned and tried at the Suit of another, becaufe they have feveral interefts in the Judg- ments.
And now the fame Law is of an Indictment of Robbery, becaufe by Stat. 2i H. 8. c. 1 1. the party is to have Reftitution.
But if the Appeal by one be not commenced till after an Attainder at the Suit of another, he ihall not be arraigned upon the other Suit :
But if the firft Attainder be par* doned, he Ihall be arraigned upon
the
!
arraignment* 213
the fecond Appeal commenced after the Attainder.
But after an Attainder of Felony, he may be arraigned for Treafon for the King's Intereft.
By the Common Law , a Clerk convid ihould have anfwered all Felonies, and were acquit or convid at the Suit of others*
But this was remedied by Stat. 25* £.3.^.4. pro Clero. And therefore after that Statute, the Clerk convidt and delivered to the Ordinary, was dilcharged of all former Felonies whereof he was not arraigned before Clergy; and that although thole other Offences were not within Cler- gy. Dyer zi^.
But now by Stat* 8 EL c. 4. after Purgation, and 18EI.C.7. after burn* ing in the Hand, he fhall be put to anfwer former Felonies upon Appeal or IndkStment. Vid. infra in auter- foits acquit & conviff.
3. Concerning the Arraignment of Principal and Acceffory.
P 3 i.Wh©
£i4 amigtunent
i. Who fhall be (aid an Accefibry Before, After, x. How the Proceeding Jhall be againft them upon their Arraign* ment.
Trin*
215
Triflcipal and Accejfory.
Ho znAcceffqry?
w
In Treafon no Acceflbries,c.pc.f:i38.
but all Principals : But a
Procurer before , or a Re- ceiver knowingly after , is
guilty as Principal in High
Treafon.
Where an A<5t of Parliament G- PC f- s% makes a Felony, it doth inci- dently make (uch Accefib- ries as would be Acceflories
before or after ro a Felony at Common Law; as in cafe of Buggery,Rape,&c.
The AccefTory cannot be
guilty of Petit Treafon,
where the Principal is but
Murther.
If divers come to commit an unlawful a<9:,and be pre- fent at the time of Felony committed , though one of them only doth it, they are all Principals.
P 4 So
2 1 6 #jmttpai an* atceffbtf ♦
So if one prefent move the other to flrike : Or if one prefent did nothing , but yet came to aflift party if need: Or if one hold the party while the Felon ftrikes him : Or if one pre- fent deliver his Weapon to I the other that ftrikes ; for I they are prafentes , auxiliary \ t?s, alettantes, or confortan tes. k
s.PC£4o: But if one came cafually, not of fi
the Confederacy , though he hin* dered not the Felony , he is neither Principal nor Acceflbry, alchough he apprehend not the Felon.
5. Infome caies a perfon abfent k „, maybe Principal. jo
CP.G138. thing to poifon another, and leaves p it, though not prefent when taken : 3 And (b it feems are all that are pre* U fent when the Poifon is fo infufed, lb and contenting thereto. fcc
z. If upon the feme Ground , cr t in the feme Houle , though not }<} ^i;hin view of the Fa£t,when many
come
i&jinripal anD Utttftoi?. a 1 7
ome to do an unlawful ad: : See efore Lord Dacre^s Cafe , and /W* ?/sCafe in Murtherand Robbery.
3. By fpecial ASt of Parliament, supon the Stat. 3 H 7>c.z. 8 H.6. x.
z. Acceflbries before; he that Dmmandeth or aflenteth to the emitting of a Felony, and is ab- nt when done.
1. In Manflaughter there can be * RcP-a*"*'« d Acceflbry before, becaufe done0*0, ithout premeditation*
x. Where the Execution varies cpcGj*. on? the Command in the perfbn dn ; as a Command to kill A. and i kill B. or in the nature of the Of* nee; as Command to rob A. as he >es to Market , and he break open s Hpufe and robs it, the Comman- :r is not Acceflbry.
3* But a Command to poifon J. S. idhelhoots him; a Command to b or beat?. S. and he' beats Jiim
death, the Commander Acceflb* *
4. If A. Command B. to kill C. d before the Fad A, repents , and
count-
2 1 8 ft?tnripftl *n% 3Uceflfo#*
countermands his Command, yet B kills him, A. is not Acceflbry.
5". If A poifon an Apple , ant deliver it to C. to deliver to D C. not knowing delivers it, Murthe in A. but no Offence in C.
St.pc.41.
3. Acceflbry after.
1. A Receipt of ftolen Good makes not Acceflbry , unlefs he re ceive Thief. Ou recieve le liens auter Felon, 9H.4.1.
x. Every Receipt to make an A< ceflbry, muft be knowing him to b fuch.
But if a man be attaint of Felon in the County of A. the Law pre fumes Notice th^rqof in the fapi County : Therefore the Receipt c him in the fame County (eems A< ceflbry; Contra, if in another Gout ty. Videtur cognitia requifita i utroque.
3. Receit of a Felon, that hat given Bond to appear at Seflions,&< not Acceflbry.
4. Relieving a Felon with Mc ny, Vi&uals, Horfe for his Journey
know
fthitipal an& Sitteflfojp* * 19
howing Acccflbry : But if he be in rifon,then lawful. £Wc.iq8.
5*. A Brother receiving his Bro ler may be Aceeflory , or a H\if* and his Wife , but not the Wife of sr Husband.
6. A man may be Aceeflory to 1 Aceeflory : And
The fame man may be Principal id Aceeflory where Felony done j divers.
7. But fending a Letter in favour I a Felon, inftrudting him to read, Ivifing to labour Witnefles not to )pear, not revealing a Felony in- nded, permitting a Felon toefcape ithout arreft, makes no Aceeflory : res Contempt.
8. Aceeflory cannot be unlefs a dony committed ; therefore A. ounds B. dangeroufly, C. receives .then S.dics, C.is not Aceeflory.
9-$
2 izo i&?mtipal anD 3Ur efifo?F»
9. Si /fc/tf* ww^ al meafon J. S que fuffer luy ialer bors, ri eft Felony, mfi prift Mony ou autre chofe pur luy fufferEfcape. 9H.4.1.
^
22*
Arraignment of the Prin- cipal and Accejfory^ and things Obfervable there- in*
IF the Principal be acquitted, s.pc 47. or be convi<a only of Man- c'£c'Sel% aughter, or Se defendendo,ot before cafe! '*" ittainder hath his Clergy , or be ardoned, or die, the Acceflbry fliall ot be arraigned ; otherwife if after Ittainder.
;. If the Principal be attaint at *.pc.47< le Suit of the King, the Acceflbry lall not be arraigned at the Suit of e party, lffintft foit attaint d'auter ^elony.
3. If Principal (land mute, Ac- flbry not Arraigned. Vid. Contra R.$.xz. 3 H.7.1.
4. The Exigent fhall not go 0utst.PC.4t. gainft Acceflbry till Principal at-
mby Stat.W.icA^.
f, Where
222 Arraignment of^t*
f. Where Principal appears not Acceflbry fliall be put toanfwerj but he fliall not be tried till Princi pal attaint or appear, unlefs he will for he may wave the benefit of the Law.
$t PC 6- ^ 'ie ^e indi&ecl as Acccflbrj
to two , and one of the Principals appears and is convidt , the Couri
Com.mo. maV> tf Aey pleafe, try the Ac
Gttm\ cafe, ceflory ; and if he be found Accel fory to him that is attaint he (hall Ix Condemned ; if not found Acceflbr) to him, yet He may after be Ar raigned as Acceflbry to the othei when he appears.
c.pr^.i.r.14. 7- # Principal and Acceflbry ap " pear and plead to the Felony , they may be tried by the fame Inqueft . but the Principal muft be firft Con vid, and have judgment , before Judgment againft Acceflbry , and the Jury fliall be [ Charged ] that if they find Principal not guilty ,1 they (hall find the Acceflbry not guilcy.
8. If Principal be Erroneoufly attainted , yet Acceflbry ihall not
take
Arraignment «f,$k 223
ike advantage thereof, but be Arr- aigned.
9. If Murtte* or other Offence *ere in one County , and AcceiTb- f in another, by Stat. 2 E. 6.
24.
1. If Acceflbry be in Middlefex, C. PC p.45. here the King's Bench fits, and rincipal in another County , the ing's Bench may try they Acceflb- Y-
%. Certificate in fuch cafe fhail 3 upon a Certiorari or Special Writ,
need be,formed upon the Matter, id not by Precept , under their :als, in their own Names. Ibid.
3. The High Steward is within ic Ad.
Accejfory al Petit Larceny , 3 Cr. f o. nemy al Homicide per inforturi,
- E.3. Coron. 116.
Novel Felony fait per Stat, vide- r nul Acceffory nifi fpecialment enacl e 9 fid Dy. 88. Stam.44.
Fid. pur Trial d Accejfory in foreign wnty. zE6.cap.24. Dy.Z53.
Acquit
224 Arraignment of,$c.
Acquit come Principal nemy arrah come AcceJJory : Mes acquit come Ac ceffbry arrain come Principal*
Mutt
22$
Mute, 'Paine fort <? ^SB*
"»'*• offence dnt*
Paine fort &•
dure*
NOw we come to the Demeanor of the frifoner upon his ap- pearance :
And thereupon either, i ♦ He (lands Mute. 2. He pleads-
3- Or he confefleth the Fad- I j What (aid zftanding Mute ? This of two kinds : x- When he anfwers nothing at- W--ti ii*! all: and then it (hall be enquired, St-PCf:i'0- whether he (land Mute by malice or by the ad of God-
If it be by the a<9: of God, then the Felony (hall be enquired of, and whetherie be the fame perfon , as if he haa pleaded not guilty.
If by Malice > or if the Prifbner hath cut out his own Tongue, then he (hall have Penance-
Nota, Si ad unf aits pled: al Felony . CL licit
226 spute^aine fo# $ time*
licet apres eft oh Mute, fer* trie ,15 E.
433-
Viez Fere eftoit Mute aver Pe- nance , 7 Car. Lord Caftlehavetfs Cafe.
2. When he pleads,but not effe&u- allyi as when he anfwers not dire&ly to the Fadi, or concludes not upon the County ,then if the caufe be pro- bable,he fliall be put to his Penance. C.PC.p.zi7.
Nota, Si ChalP ultra 3 j, Standing Mute. VidC.PC.fo.z17.
2. What the Confequent of {land- ing Mute? 1. Forfeit liens , 14 E. 4. 7.
1. In Treafon it is a Convi&i- on.
2.After Attainder and ask'd what he can fay why no Execution,ftand- ing Mute he fhall be Executed,
3. In Appeal Handing Mute, Judg* ment againft him to be hanged. Con- tra, 14 Zs.4.1.
4. Upon Stat. 33 H. 8. c. z. of Felony within the Verge, Offender {landing Mute , Judgment againft him.
5. But
^ute,l&amefo#$DUte* 227
j. But in other cafes of Felony^ Paine fort & Jure , and forfeits Goods.
1. Remanded to Prifon.
2. Lie naked m fbme dark Roopi, with Hands and Legs extended.
3. Weights increased.
Q>
Tleas.
228
"Pleas.
IP the Prifoner plead, it is either* i. Declinatory. San&uary, Glergy, ' z. Or to the Felony : i. Demurring. %\ Pleading m Bar. 3, Pleading the General Ifliie. Declinatory Exceptions. 1, SoH&usryzxA the Confequents, Ahjuratlon ©lifted by Stat, xi Jac.
Clergy.
2 2£
Chi
V*
a. f~^Lergy, wherein V^j i- Who fhall have benefit of Clergy ? 2. In what Cafes ? y At what time? 4. Who the Judge? <* What the Confequent > 1. Who fhalj have Clergy , and who not ?
i- A Blind man (hall npt have his Clergy- Nee Jew, nee Turk : Contr de Greek ou home exqommeng*
2. A Woman cannot have the benefit of Clergy.
Provifion by Stat-zi Jac. c.6.c.PGcis4- that for ftealing Goods un- der 10 j. without Burglary or Robbery , &c- fhall be Burnt in the Hand for the firfi Offence.
3. Bigamy oufted of Clergy by Stat- de Bigamis 4 E i . but reftored to it by Stat- 1 E6* c-iz.
Q_ 3 CeAi<y
I 36 * Cletgp*
Cefluy queahjure aver' Clergy apres [on returne, 8 H8- Kel.186.
C^/?«y fue ad unfoits Clergy riaver* auterfohs, nifideins Orders, 4 ft. 7. C.17.
x. /# a>to ai/w } Some things premifed in general.
j. By Stat, zi E. j. c. 4. />™ Clero- Clergy allowed in all Treafons or Felonies , except -Treafon againft the King ; fo that after that Statute, there was Clergy in all Cafes, but
Confequently wherefbever Clergy is not allowable in any other cafes, it is taken away by tome Ad of Par- liament.
Confequently where any
Felony is made by a new
^/.Clergy is to be allowed,
imleft exprefly taken away>
4>Cofl-
Cletgp* 231
4.Confcquetitly where by any fpecial A(5t of Parliament Clergy is taken away in any Offence,the Indid;ment ought to bring the Cafe within the Statute. As upon the Stat. 3 & 4Pb. & Ma. ct 4. the Indictment muft run Malitiofe ; fo upon Stat. 8 El c. 4. it muft be clam & fecrete ; in cafe of Murrher, exmalitia prtecogi- tata, otherwife Clergy allow- able.
5V Confequendy a Statute ta- king away Clergy from the Principal, doth not thereby take it from the Acceflbries before, unlefs fpecially pro- vided for.
6. Where Clergy is allowable, it is to be allowed though the party be Convi<5t by Confefiion , Verdid:, or ftands Mute » or challenges peremptorily above 35.
C^4 i.Pm
232 CletQp*
%% ? articular Offences where Cle gy, snd where not.
%. High Tr$afon no Clergy.
z. In Petit Treafon.
Principal ouft of Clergy, iff convidt by Verdift or Con- feflion by Stat, z$ H. 8. c. i. reviyed by 5 (§ 6 E> 6. c 10. and by Stat. %$B. 8. c. 3. though {landing Mute , not diredly anfwering, or chal- lenging above Twenty.
Not ouft of Clergy in Appeal, unlefs Convift by Verdidfc or Confeffion.
Acceflbries before the Fadt malicioufly, ouft of Clergy in all cafes, by 4 & 5 Ph.® Ma.c.4.
3. Wilful Murther of Malice pr£penfey Principal ouft of Clergy in all cafes by Stat. z$H. 8. ci. 25/7. 8. f.3. i/?.6.c.iz.
Acceflbry before nialicioufly, pufted in all cafes , by 4 §? \Pk® Mac.$:'
4» Arfon of Houfes , or Barns full of Corn, Principal ouft of Clergy in all cafes , viz. fur Conviction by Verdid:, or Confeflion , by 23 H. 8. c, 1. upon Handing Mute, not dired: anfwering, chal- lenge above Twenty , by $tat.z<y i/.8.c.j.
But Utlary (lands efubje£fc ro Clergy.
Acceflbry oufted of Clergy in all cafes by 4 & 5 Pb<& M. c. 4*
J. Simple Burglary.
Principal oufted of Clergy if utlawed, Convi&ed by Ver- dict, or Confeflion,
Not oufted if ftand Mute,chal* lenge above Twenty, or not dire&ly anfwering.
Acceflbry before or after not ouft of Clergy,
6. Burglary, any peribn being in the Houfe, or put in fear pv dread.
Prin-
234 Clergy
Principal ouft of Clergy in ail cafes , viz. by Sfat. i E. <J. 12,. in cafe of any Convi- ction or Attainder ; and by 25 H. 8- c. 3. revived by 5 (S 6 E.6. c io- it take$ away Clergy where above Twenty challenged. But Acceflbries not oufted of
Clergy. 7. Rolbery, which hath feveral Qualifications, with theft Confiderations: 1, From the Perfon, Without putting in fear , but clam (S fecrete : By Stat. 8 El. c.4.Principal in all cafes ouft of Clergy, AccefTory not ouft.
With putting in fear , Robbery in or near the High way.
1. Principal in all cafes ouft o| Clergy , viz. if Appeal or Indictment by 23 HS. c.i< Convid 23 H. 8. c. 1. At- taint 1 E. 6. c. i2. Mute, Challenge above Twenty by Stat. 2 5 H&.c.y revived by < (0 6 £.6. c.io.
2. Ac-
Clergp* 235
2. Acceflbry before ouft; of
Clergy in all cafes, by 4 ^
2. From Dwelling-houfe; and this three kinds :
1. Owner, Wife, or Servants being in the Hou(e , or put in fear ; here Clergy-
i- As to to Principal , taken away by 23 H g. <m. in cafe of Convidion by Verdi<a,or Confefliort, and by 25 H 8. c.3. Revived by 5 & 6 E.6» c. 10. in cafe of Handing Mute, challenge ultra Twen* ty, not directly anfwering : Alfo to a Conviction in a foreign County, if it appear by Examination not to be within Clergy in the fame County.
2. Acceflbry in all cafes ouft of Clergy by Stat. 4^5- ?h- & Ma. c.4.
Not a, A Stranger in theHoufe brings it not within Sta~ . tute-
z.Rob-
936 Ciergp*
%. Robbing any perfon by da or night , any perfon beir in the fame Houfe, and pi in fear- Principal ouft of Clergy t i £.6. en. in all cafes, b challenging Twenty ; and I Stat. 5 & 6E. 6. if a foreign County Clerj upon Examination taken way. Acceflbries,Clergy taken aw; by 4&T? Fk & Ma. c. in all cafes. 3. Robbing any perfon in 1 Dwelling Houfe , the Ow er , his Wife , or Childr being in any part of t Houfe , or within the p: cin&s thereof; though the be no putting in fear. Ai this extends to Booths Fairs. Principal ouft of Clergy 1 5 & 6 E. 6. c. 9. in ca where the Offender is fout guilty.
Pri
Ciergp* 237
Principal thereof in other cafes fliall have Clergy ; as in Handing Mute , challenge ultra Twenty- Acceflbry ouft by Stat. 4 & < Ph> & Ma.04. 4. Robbery to the value of 5 s. t of any Dwelling houfe or Out- ufe thereunto belonging , though ne in the Houfe, by Stat.5 5 EL Principal ouft of Clergy in cafe Conviftion , not ot ftanding ute.
Acceflbry fliall have Clergy. Vn enter in le LodgtngSir H. Hun- :e parcel! de Whitehall , nut perfon ?ant in Lodgings mes in autre part Whitehall & infreint un Chamber prift Hens: Rule per advife de iices , 1. IS IndiElment doit eft re infreindre de meajon de Roy vocat' litehail S> pur Embleer les liens H- H- divers perfons efleant in le zfon : Car nient femble al Chamber Tnn de Court , lou chefcun adfeve- property. z> Que ceo fuit deins le t. $ & 6 E. 6- & l^Inditement accordant. \ Que in Inditement
fir
1
23 8 €letgp*
fur Stat, 23 H. 8. vel 5 fe» 6 E. J //#// £/?r? actual breaking & au>\ Rohhery. 4. Que fi far on enter meafon le Doors open, & enfreh Chamher , & prifi hiens , eft deiim Stat- 5. E. 6- d'oufier fay de Clergy.
8- Larceny without any of the Circumftances-
Horfe- dealing ouft of Clergy, 1 f E6.C.IZ. z & 3 £"-6.3 ?• Princij ouft in all cafes :
Acceflbry oufted in no cafes.
But other Larceny,not being Re bery nor Cut purfe, have Clergy.
9. In Rape, Clergy ouft by St \lElxq.
10. Though the Offence be wii in Clergy, yet if* he had formei his Clergy , and were burnt in t Hand,che Stat. 4 Hrj. c 13. oufts h of Clergy , unlcfs he were a pet;( in Orders,and then he muft prod,i his Certificate prefently , or bj time prefixed.
And fee the Stat. 34^ 35* H. 0*14. for the manner of the Cert; cate of fuch Convictions and otl
Attainders.
A
Ctetgp, 239
c #
And though Stat- of 3 zH. 8. . lath put men in Orders in the fame ondition with others , in reference Clergy ; yet as to this Point of he Stat. 4 H. 7. the Claufe of the 'tatute 1 E. 6. c- 12. doth give a erfon in Orders his Clergy the fe- ond time in all cafes , but in cafe f, 1. Challenge above Twenty: Outlary.
3. When Clergy fhallbe allowed. 1. Now the ufe is not to put the party to challenge his Clergy till he hath pleaded, and the Inqueft thereupon taken : i- For advantage of theSt,PC£,3
party, if acquitted. z> For advantage of the King for forfeiture, if Convict. 2,. It may be allowed in Dif- cretion , though the party challenge not. Allowed under the Gallows, or where Judgment of Paine fort & dure given, or where challenge above Twenty.
V.
24*>
V. Crow* Jur. 126. Allotv fouth Ga/kws per Juft. B- R- mes nemj Gaol Delivery : Mes poent apres Judg ntent devant adjournment, Dy.205.
Licet Ordinary retornnon legit, &
eft record, (§ repry al autre Seffions^
& tunc legit , aver a benefit de ceo
Dyxo2- 34H6.49. Coron.io.
4. The Judge.
The Ordinary is but Minifter,th< Judge at Common Law is the Judg< when and where to allow it , anc of the Reading, 9 & 4. 28* Com
5. What the Effeff of Clergy a] lowed :
1. In ancient time the Confequen was delivery to the Ordinary, eithe to make Purgation , or abfque Pur gatione, as the cafe required.
But by Stat. 18 Elc.7. now onl] Burnt in the Hand, which hath theft effects ;
x. Enables the Judge to deli ver him out of Prifofi ; bu yet if he fee caufe, he maj detain him till he find Sure ties of Good Behaviour.
Anc
- 1
!
:
":
And by the Stat. 3 H.y. c- 1. If Clergy within the year* he is to be Bailed or Com- mitted at discretion, till the year paft. i. It gives him a Capacity to ^#;*sca& purehafe Goods, and retain s p* the profits of his Lands. , But the Goods he had at the time of the Conviction are forfeit* 3. It reftores him to his Cre- dit* Hob. 377. Searies Cafe. Le Stat. 25 It. 8. que toll Clergy Jet >erfons arrain in foreign County fur lamination extend folement al tieb ^elonies (font Clergy ouft per Stat' ;3 H.8. @ nemy per fubfequent Scat. it pur ceo Rule in Anne Coles Cafe i >i feme infreint me af on in County de >'. in day time , & prift liens jouth wlue de 10 s. & eux import in Com- y de D. S? la arraigne, el [err a arfe % mdine :■ quia nul mijler in pavof me require per le Stat, 2,? H.8. Robbery de vdue de 10 d.& import foreign County & la arrain eft Pe- R« tit
242 Cie^.
tit Larceny, % Jac. More'* Rep. quia le Stat. %$\i. 8. extend folement al ceftuyque demand Clergy , que n eft in cafede Pet" Larceny.
Indite de Rollery in quadam via pedeftr i, aver a Clergy : Car le Stat. park de Robbery in vel prope altam viam regiam. r.38 H>%More j.
Tleas
H3 Tleas to the Felonji
"D
Emurrer-
2. PJeas in Abatement and Bar- 3 The General IlTue-
i; For Demurrer. It amounts to a Confeflion of the c WdU.cn. Indictment , as laid ; and therefore if the Indictment good, Judgment againft the Prifoner, and Execution.
2. For Pleas in Abatement.
If Prifoner plead Mifnofmer of his Stt Pc , 8 ■ j Sirname unto an Appeal , it goes in i H.5/5. Abatement : But in cafe of Indict- ment, he (hall be put to anfvver the Treafon or Felony.
But Mifnofmer of the Chriftian Names goes in Abatement ; and if it be confefled by the Rings Attor- ney, or found, the IndiCtment falls. ii H.$£oron&%.
But then he mud give his true Narrre,and by that Name he maybe forthwith IndiCted.
R % i*** Pleas
244
Pleas in Bar.
Auterfoits acquit.
Aaterfoits acquit : i. If a perfon be acquitted upon an inefficient Indi&ment or Appeal, yet upon a new Indictment he may be arraigned for the fame Felony. 4 /?♦ Vaux's Cafe , licet Judgment done. st.pc.105, Zt Auterfoits acquit of one Felo-
ny, no Bar to an Indictment or Appeal of another Felony , &c. though committed before the Ac quittal.
3. Auterfoits acquit as Principal, no Bar to an Indictment againft him as AccefTory to the fame Felony after; But it feems he cannot be after indited as Acceflbry before, Stamf. 10 £.
4. In an Appeal of Death or other Felony, Auterfoits acquit , upon an Indictment for the fame Felony, was a good Bar in all Cafes ; therefore
if
auterfotts acquit* 245
if an Appeal was pending,the Court would furceafe the Arraignment of the Prifoner upon an Indi&ment till it was determined ; Or though no Appeal pending,yet in cafe of death, would furceafe till the year paft.
But at this day Auterfoits acquit in an Indictment of Death no Bar to an Appeal, by Stat. 3 ff.j4 c. i« for the Prifoner, notwithftanding the Acquittal ; but in other Appeals it (lands a Bar to an Appeal.
5-. But Auterfoits acquit in an Appeal , Bar to an Indidrment of the fame Felony.
1, Unlefsthe Appeal be Erro- neous in fubftance.
%> Or unlets the Appeal be by a wrong Peribn.
3, Unleis the Acquittal be by Battel ; for in thefe cafes he may be indicated again.
6. He that pleads this Plea, need not have the Record in poipie \ be- caufe it goes in Bar. 3 E.^.B- Cor on. 2,17.
R 3 7, Though
2&6 %UtttMt8 %tt{iM*
7. Though there be Variance be- tween the Indi&ment, &c yet if it be (uch as may admit an Averment^ to be the feme, yet it may be plead- ed.
Variance in the Name , if Conus perun Name& auter.
Variance in the Day of Felony fuppofed to be committed- Variance in the Place, but by the Opinion of 4^5. acquit of Lar- ceny in one County no Bar in ano- ther.
Variance in tOffence auterfoits acquit , attaint de Murther ou Mm- Jlaughter turr Petit Treafon.
Auter
autetfoita Contact o£#c* 247
Auterfoits Convift or Attaint*
i- Where a Bar to the (ame Fe- lony :
1. Auterfoits attaint of the fame Felony in an Appeal Bar to an Indi&ment ; for the EffecSt is obtained , the death of the party : But lid. no Bar in Appeal.
2.. Auterfoits convitl by Ver- di(ft or Confeffion of Man* (laughter in an Indi&ment - and had Clergy, Bar in Ap- peal, though ir be of Mur-^c4^; ther, for the Fad: the fame in both, though the Offences differ in degree- Auterfoits acquit fur inefficient Enditement , @ nul Judgment done9 riejf plea : Mes auterment eft ft Judgement foit done tanque ceo reverf Fauxes Cafe, 4 Rep.
x- Where a Bar to an Arraign- ment for another Offence-
R 4 x.Au-
248 mutetfoits Confcitf ♦
£ FC.IP7- i.Auterfoits attaint of Felony,
is no Bar to arraign him of Tre^fon committed be- fore the Felony for the King's Intereft.
$Fp ? 1 5. And it teems, if the Treaibn
was committed after the Fe- lony,then he fliall be arraign- ed of the Treafbn, for the Offence is different. %. Auterfoits attaint of one Felony, Bar to an Arraign- ment of Felony : But this hath thele Exceptions,
1. Where the firft Attainder is pardoned , there he may be arraigned for the former Felonies, though committed before. % pg**,iq£. £• In ca^ °f Appeal he fhall be
* arraigned at every one of their Suits, notwithftanding he be attaint at one Suit.
yhe like it feems upon indidt- ment of Robbery , becaufe by the Stat, the party is to have reftitution.
* Ji $.Anter-
^utecfoits Contort, 24?
3, Auterfoits convitt, and had Clergy after Stat. x*$ E. 3. c. 5. had been a Bar to an Arraignment for another Fe- lony , though not within Clergy. Dy.214. But now by Stat. 8 EL c. 4. after Purgation , and 18 is/. - c 7. after burning in the Hand , he fhall be put to anfwer former Felonies not within Clergy, or for any offence after Clergy allow- ed. And Note,That he that pleads a Plea in Bar to an Indi&- ment or Appeal that con- fefleth not the Felony, fliall plead over to the Felony; otherwife if it confefs the Felony ; as Pardon, or Re- leafe.
Vardons*
25°
St.PC.I02.
Tardonu
3. T)ARDONS
j7 Are either of Courfe and Right ; fuch are,
1. Foraperfon Gonvidfc of Man- flaughter, or Se defendendo.
2. An Approver that vanquiflieth the Appeliee.
Pardons of Grace :
1- Some things requifite to their allowance hy Statute.
1. By Stat- 13 R. z> c- i- Pardon of Murther, Rape or Treafon muft beefpecially exprefled in the Pardon, otherwife it ought not to be allowed in fuch cafes- Vide ft extend al Petit Treafon & Acceffories , 22 E. 4. 19. Lam-293-
2 By Stat. 10 Eye. x. there muft be Surety of good abearing , other- wife the Charrer void ; but a fpecial Non ohfiante may prevent it-
2-Matter
i&attiom 251
2,. Matter at Common Law con- fiderable-
!• Charter of Pardon no Bar of in Appeal; and if the party be In- lawed in Appeal, and the King par- ion, he fliall have a Scire facias igainft the Appellor, who may pray Execution notwithftanding fuch Pardon ; but if returned Scire feci, ind appears not, then Appellee fhall jpon the Pardon be difcharged-
2. Pardon of all Felonies is no 3ar to Execution , if the Felon be Attaint ; yet an Exception of all Burglaries excepts the Burglary for which the party is Attainted.
3. Pardon of all Attainders, not good with a pardon of the Felony. : 4. The Pardon of Felony reciting in the Pardon that the party is In- duced, and in truth he is not, this is void.
£. The
252 patDom
cpc.3$7. j-. The King may Pardon the Burning in the Hand in Appeal , & V Imprifonment per ceo difcharge.
6. S'il apres infreint Peace Scire fac gijl a repealer le far don, & Jen a
- pendupur primer Offence per leStzt. 10E. 3. 3 H, j. 7. viz. nife Joit non olflante le Stat.
7. Tar don de tout Felonies per A. & B. vel eor alter* commit* pardon feveral, Dy.34.x1 E 4. 7.
Pleading the Pardon.
He that pleads a General Pardon by Parliament, wherein are Excepti- ons, muft aver that he is none of the perfons excepted.
But of a General Pardon by Par- liament without Exception,the Court ex Officio muft take notice.
He that pleads a Particular Par- don,
1 . Muft fliew it under Seal.
2.Muft have a Writ of Allowance, quil ad trove Surety fom , Stat. 10 E. 3.
Mes
Mes lou ml Irief d'a/lowance ml mort< 5E.4.132.
3* If Variance, hemuft aver that the fame perfon.
General
254
General Ijfue*
'TPH U S far of Pleas in Bat 1 upon Indidmentsot Appeals: Now we come to Pleas to the Fatt, Not Guilty*
i. Regularly he that pleads any Special Matter in Bar in Cafes Capi- tal, that confefleth not the Felony, notwithftanding the Plea found a- gainft him, the Felony lhall be en- quired of, and therefore he (hall plead over to the Felony.
2. The immediate confequent of this Plea is Trial; and that is either y
By the Country* By Peers- By Battel.
Tfiai
255 Trial per Tatriam.
I. /concerning Trial per Tatrh \^j am ; and therein, i. Where Iflues tried.
2. What Proceft againft Jury. „
3. Before whom.
4. Challenge.
5. Evidence to be given.
6. Verdid. i» Where tried.
1. For Trial of foreign Treafom and foreign Acceflbries, or ftroke in one County, and death in another, vide fupra in Indictments.
z. For Trial of foreign Pleas by Stat. 2x H.8. c. 14. made perpetual by gx-Zy.8.c.3. Foreign Pleas plead- ed by a perfon indicted of Felony, and Triable by the County, lhall be tried where the party is Arraigned ; but it is now in Treafon triable in the foreign County by virtue of Stat.i&%Pb.&Ma.c.
2. ?re<
2 $6 ^naipe^atnani
2. Procefs againfi the Jury.
i. Not a , The Juftices of Gaol Delivery have their Pannel returned by the Sheriff without any Precept, by a bare Award ; but Juftices of Oyer and Terminer not.
x. By good Opinion , the Juftices of Peace, or Oyer and Terminer, cannot make their Venire facias to try an Ifliie retornable the faine Seffions ; but Juftices of Gaoi Deli- very clearly may.
$t?ct.iss- 3* K" feveral perfbns Arraigned upon an Indi&ment or Appeal , and they (everally plead Not Guilty, the Plaintiff may take out one Venire facias jOt feveral-
4. If the Venire facias be joynt, Challenge by one drawn againft all.
Oom.100. 5. Though Pannel be joynt , and
Tales awarded, yet Court of Gaol Delivery may after fever the Pannet to prevent that inconvenience*
6 In
JEriai per $atnam» 2$7
6- In Appeal, if after Iffue Plairi- tiflT tries it nor, a Venire by Provifo may be for the Defendant ; yet up- on that Venire Plaintiff may have a
s 3. Tales.
1. If a full Jury appear not, or fee challenged in Indictment or Appeal, the Plaintiff may have a Tales.
2. Upon Indictment or Appeal, becaufe Defendant may Challenge peremptorily, Tales may be granted larger than the Principal Pannel, as forty Tales, 14 H 7. 7.
3. But the fucceeding Tales mull be lefs than the former , unlefs the firftbe quaftied, and then the fame number with that which is quafhed.
4. If any of the Jury die before fworn,a new Tales grantable,
8 l.Befiti
258 JEriai pet J&aitiam*
3. Before whom ?
i- A Niftprius not grantable where the King Party, unlefs prayed by his Attorney.
z. By Stat . 14 H- 6- c Power to Juftices of Nifi prim to give Judg- ment in Felony and Treafon tried before them-
3. By Stat^i&ycw. Enqueftin Affife and Gaol Delivery may be taken before the Pannel returned in Court, but not in other Cafes.
^ChaU
£riaiperi&a*«am* 25^
Challenge.
4. Challenge of Array or Polls.*
1. Ex parte Regis, by Stat. ^E* i. c. the King fliall not Challenge without Caufe ; but yet he is not compellable to fllew the Caufe till the Pannel perufed.
z- Ex parte prifonarii, the Chal- lenge is either Peremptory, or upon Caufe- i. Peremptory Challenge.
1* A Peremptory Challenge not allowable, but where the life of a Prifoner comes in queftion , and therefore not upon Collateral Iflues-
2- At Common Law he might have challenged peremptorily 3? under three full Juries ; and if he challenged above , he fhould have Judgment to be hanged, 3 H 7. n.- But by Stat- zz H 8- c- 4. made perpetual, by 32 H- 8- c. 3. it is reduced to 20 ; and now if he Chal- lenge above 20 , he fliall not be therefore hanged, or forfeit, but his 3 2 Chat-
266 Challenge*
c pc. 227. Challenge Over ruled ', and he put r upon his Trial; yet vid. Statutes,
femble contra.
3. In cafe of Treafon and Petit Treafbn, the Challenge of 35- refto- red by Stat- 1 & 2 Ph. ® M. c.io.
2. Challenge forCaufe; we mention but three ; 1. Caufeof Insufficiencies. By the Stat. 2 H. 5*. c. 3. 40 s. per Ann* required in County; but this, as to / Aliens, corre&ed by 8 H. 6. c. ult. in Cities by Stat- 23 H.S. c.13. Goods to the value of 4© /. x. Vnindifferency. Iadidor not to be of Jury by Stat.%1 £-3^.3.
3. In reference to an Alien, & meaietat7 lingua, where
i. In no cafe Indicators ought
to be de medietate lingua.
2. In Treafon trial per medie-
■ taf lingua repel per Stat*
t~& 1 Ph. &f Ma. que ad
repel 28 E. 3. in that cafe.
3. In
Challenge* 26t
3. In Appeal by an Alien a- gainft an Alien, no mc die tat* Ungate.
4. Scot no Alien, to have Me- dietatem lingua.
5* The Jurors need not be of the fame Nation , but any Aliens.
6* He that will have advan- tage of Trial per medieta- tern lingua muft pray ic% otherwiie he cannot have benefit by way of Chal- lenge, ^04,357.
7. Egyptians excluded from the Trial per i&zPh& Max a.
S 3 Eviltnce
2^2
Evidence.
5* ^\?yidence to the Petit Jury. Jl.i I. In cafe of Tre a fon, There mud be two Accufers or Witnefles by Stat, i E. 6. c. ix. & 5 E6- c. ii. and this notwithftand- ing Stat. i®zPh. &Ma.c.n. but only in cafe of Treafbn for Counter- feiting Coin.
Thefe Witnefles muft not be only by hear-fay.
%. In cafe of Felony.
i. What allowed as Evidence : i. By 5/4/. i& % Pb- &Ma. c. 13. & 2 & iPh & Ma: c.io- the Juftice hath power to Examine the Offender and Informer.
2. The Examination of the Offender not upon Oath, but Subfcribed by him-
3. Examination of others muft be upon Oath-
4. This muft be certified by the Juftices.
j. if
<£t>iOence> 263
1. If it be but a (mail Felony,
to the Seffions. x. If it be a great Felony, &o
to the next Gaol Delivery.
5. Thefe Examinations ,if the party be dead or ab(ent,may be given in Evidence.
But Prudence to have the Juftice or his Clerk fworn to the truth of the Exami- nations.
6. But Examinations , taken upon a Caufe of Divorce for a forcible Marriage, not al- lowed to be read upon an Indi&mentupon 3 H-j\ for the fame Marriage.
2. By whom.
1. Wife , or her Examination, Dalt-tI!I- not to be ufedfor oragainft
her Husband.
2. The Examination of an In- fant of Thirteen , nay* of Nine allowed in feme cafes.
3. One Attaint of Confpiracy, • Forgery, or Perjury, not al- lowed a Witnels.
4. One duly fet on Pillory, cpjfcai*.
S 4 3J11
264 <&UUntt>
3. In what manner.
1. Evidence for the King always upon Oath. c,pc. c.22. ^ut Evidence for the Prifoner not upon Oath; yet no known Law that retrains it: But by fome Statutes in fome cafes, Evidence for the Prifoner upon Oath , as %i El-cq- 4jac.c*i. The Confefiion of the Offender taken upon Examination , Evi* dence with Oath not of the In? former.
4. Where Evidence maintains the
Indi&ment.
1 . If the Indictment be of a Felo* ny, &c- at one day, though the Evidence be of another day, the Jury may find generally againfl: Prifoner , and leave the perfon that is incerefied in point of time GPC. $33®, to falsify : Or the Jury may find
the true day upon their Verdid:, and then the icrfeicure fhall re? late thither.
3. If the Indictment lay the Fe- lony at one place, the Evidence proving the Fad; at another p!ace
in
in the fame County, maintains the Indictment.
3. If the Indictment and Evidence differ in fpecie mortis , then it maintains it not: as Indictment of Poifbning, Evidence of Stab- bing maintains it not-
But if the Indidtment be of poy^CPCijf. fcning with one kind of Poiibn, and the Evidence of another ; or of killing with a Dagger, and the Evidence is of killing with a L/^f Staff", yet it maintains the fn- didtment ; for it agrees in fub- flance and kind.
The like of Acceflbries before, though the Poifon or Weapon different.
4.1ndidtment that ^gave the mor- tal blow, and B- C. and D. were
prafentes & abbett antes ^Evidence that B. gave the blow, and A. C. and D- prajentes & abbett antes, yet it maintains the Indictment.
5. Indictment of A. as Acceflbry 9 Rep. san- to B and C. Evidence proves char^ cafe° himAcceflbry only to B. main- tains the Indidment,
6- In-
266 €Uhmtt*
6. Indi&ment of Murther , ex mahtia f>r£cogitata ; Evidence of malice in Law, as killing an Officer,or without Provocation, yet maintains the Indi&ment.
7. Indictment upon Statute of Stabbing, 21 Jac. Evidence that the Dead ftrook firft , yet Evi- dence to maintain the Indidr- ment for Manllaughter general- ly,//. 2 3 Car.Horwood's Cafe.
8. Two indicted as Principals , Evidence proves one Acceflbry before, he fiiall be difcharged of that Indi&ment, 16 /7.8.y.
9. Vid. Stat, 21 Jac. c.27. Mother endeavouring to conceal the death of her Baftard child, fliall fuffer death as in cafe of Murther, unlefs fhe prove by one Witnefs that the Child was born dead,
Vid. Att. 17 Car. in fine , for the farther relief of His Majefty's Army in the Northern parts. Ad: continued till end of next Sefiions ; continued over till fome A<St of Parliament for their continuance or difcontinuance.
Verditt.
26y
VerdilL
6. X TErdid: in cales Capital.
V i. It mull be given, andStpc.i^. the Jury cannot be difcharged till it be given.
^. It mull: be given openly in Court, and no privy Verdid.
3- It may be found Specially; as anlndidment of Murther, the Jury may find him Guilty,
i. Of Manflaughter :
2. Per Infortunium :
3. Se defendendo.
But then they muft find the man- ner of it, that the Court may judge thereof; fo for the value or the man- ner of the Larceny.
Trial by ^Battel^ Teers.
NOw we fhould come to Trial, By Battel.
By Peers: Vid. the whole Procels thereof, C.PLCor.zy.
Judg-
2*8
Judgments in the feveral
Cafes.
I
N High Trcafon :
cpc.2!?, i. In all Cafes, except Coun-
*i9' terfeiting Coin , Drawn , Hang d ,
Entrails taken out and burnt, Head
cut off, Body quartered, Head and
Quarters hang'd up.
z.In Counterfeiting Coin, Drawn and Hzngd-.IJint per tonfure Dy.z^o. But the Judgment of a Woman in thofe cafes, Drawn and Burnt.
II. In Petit Treafon;
i. For a Man , Drawn and Hang'd. 2. For a Woman , Drawn and
Burnt.
III. In Felony.
Hang'd till Dead : And this can- not be by the King altered to Be- heading.
IV.
SiuDgment tn,f c« 26 9
IV. In Petit Larceny*
To be Whipt. He forfeits Goods.
V. Death per infortunium.
No exprefs Judgment; yet for- feits Goods-
VJ. Death Se defendendo.
No exprefs Judgment; yet for- feits Goods-
VII. Mifprifion of Treafon.
Forfeits Goods ; forfeits Profits of Land during Life; perpetual Irnprf- (bnment.
Vide for Seifure of Goods. 1. Not before Indictment. %> Nor removed before At- tainder, i/?.j. c.j.
Faf-
2 7 o f alfi'fping Uttaimm.
Faljifying Attainders.
i. By the Party, by Writ of Error.
2,. By others Falfifying it-
i. A Purchaser may falfifie an Attainder of the Vendor by Uclary or Confeffion in the point, if he purchafe before the Attainder , and after the time of the Felony fuppofed 2- A VmchzktMefne between the time of the Felony com* mitted,and the Attainder by Verdidt, cannot falfifie in the point of the Offence , but he may for the time- 3. If the Attainder was by fuch as had no good Commiffion^ the Party himfelf may falfify the Attainder. Cafus Com. Leiceft. 4. If the Principal attainted, and then the Acceflbry and Principal reverfe the Attain- der ,the Attainder of the Ac- ceflbry is eoipfo avoided, and his heirs may haveMortdanc againfl: the Lord by Efiheat. $< Attain-
faUtfptng attainDers* 27 1
5. Attaint of Treafbn , and then the Trealbn is pardoned by AcSt of Parliament,the party or his Heir fliall falftfy Attainder.
6- In Cafe of Goods.
i. Fugam fecit found by the Coro ner cannot be falfified, though upon his Arraignment it be found he did not fly : But if the Indictment be void or in- efficient, no Forfeiture.
2. A man indi&ed before Juftices5tPG-l84- of Oyer and Terminer, acquit
by Vcrdid:,and found he fled, and the particulars of hisGoods found, they may be Traverfed.
3. Default till Exigent, though after acquitted, Goods forfeit- ed ; for it is a fugam fecit in Law*
But if the Indi&ment, Appealer Procefs inefficient, the For- feiture faved ; (b if it be rever- fed by Error, or pardoned be- fore Exigent.
Nota, Flight or Exigent in cafe of Petit Larceny, forfeits Goods*
Execu*
272
Execution and Reprieve.
cxpc.2J2, 1. r I ^He Execution muft be pur- 2 1 1- JL fuant to the Judgment,and
cannot be altered by the King, as from Beheading to Hanging.
1. But King may pardon part of the Execution ; as in Treafbn , he may pardon all but Beheading.
?. It muft be done by the proper Officer-
cpc c7. 4. if a Woman, Convid of Trea-
st!pc.f.ii>8. *°n or Felony, be quick with Child,
flie fliall have one Reprieve, but not
a fecond time.
An
An Alphabetical Table of the Principal Mat- ters of the Book.
A
ABjuration, oufled^ 218. Acceffory% who, 21^ before, 217. after,ziSt arraignment, 221. Affray ,13?. Ale houfes, 147.
Appeal, where profeatted , 179, ijf w?/j<tf matters^ 1 80. 0/ Death. 1 8. i . 0/ Robbery , 184 0/ Rape ^ 18& Procefi in Appeal , 187. Court in Appeal ',187, /Vftfj /» Appeal^ 89, 190. Approver, what, \§x% who may be,\h\&* in what cafes , 193. of H&-W offences, 193. before whom, 11^4. &w demeafned, 194. Procefs, 19C Proceeding, upon trial, i%6> after Trial, 19 7. *
T ' . Arraign-
An Alphabetical Table.
Arraignment , in what manner , xiz.
where, ibid. <?/" Principal and Ac*
cejfory ,z 1 3, zz 1. ,^/Tg/?, £y a private per/on, command-
ed by Law9r6% permitted, 91. ^
Officer 9$%. Arfon$<>.
Auterfoits acquit,!^. Convic7tz4j.
B
BAH , h> to, 96- i# wte c#/£ J, 9 7, by whom,io3* virtute brevis,/^. ex officio, 104. Barretry. Breach of Peace a IS-
of Prifon$-j.y.Rump€r-Prifon. Bribery. Bridges ,543. Burglary^. Burnings Arfon, 8j.
CHalknge,z$g. Champerty ,151. Chance medleys j,
per^9.\
An Alphabetical Table.
Clergy, 219.
Clipping Monji 1 9.
Coin, Treafon concerning /Y,ibid»
Commitment ',94.
Concealment of Felony \iz$.
hy Juries > ibid. Coromrjijo. Counterfeiting Coin, 19. <3r<W £i?tf/«
18. Courts,! 5 6.
T>
DEVei/ d?W Cozenage* Demurrer ,z4j Deodand,^. Drunkennefs, 149.
E &"#/>£ , i» //tf /drr/y, 1 i 1 . i# i Str anger, xizan an Officer^i^, Evidence 9z6z* Execution^? z. Extortion.
T %
An Alphabetical Tab]-
FAlfifying Attainder, &c. 270, Felo defe,z$ Felony by Common Law,i6^
byStatute,ny4 Forcible Entry \ 138.
Detainer 9I7$* Forfeiture. Forgery ,151. Forejlallin^ 152.
G
Aol Delivery ,i 5%. General Iffue9z^
H
Erefie^ _ Higb'ivm,i44. Homicide , per Infortunium , 31. ex necefitate, 35. in execution of Ju~ fiice, 3 $\ i# advancement of Ju- Jlice, 3 4. . upon private Intereft , Juftifiable, 3 9. Excufable} 4 1 . //#£ and Crv^o.
I
An Alphabetical Table. I
IMprifonment, vide Arrefl. Inditlment, where requifite, 198. ly ivbom,zoT. of what matters, zo}. before whom, 20 5. the form, zo6. proof 3zo8. hgroffingti5z. Inns ,146.
Judgment, in feveral cafes, 268. Jurifdiftions, 156 Jury, vide Prccefi & Challenge. Juflices €>f Affize,\6^ of Peace, 1 6 £
LAneny, Simple, 60. Mmt, 71. from the perfon, ibid, from the houfefj6. Leet,iyf.
M
An Alphabetical Table,
M
MAihem,!^. Malice^. Man/laughter, 5 6« Medietas Lingua yz6o. Mifnofmer ,z^
Mifprifeons,iz6 Negative, of Tred- fon, 127. of Felony, 129. Pofitive^ 131. Mittimus, 94. Murther^y
Mute, 225* what flanding mute, ibid* the confequence, 226.
N
N Vfances, 134 143.
O
Offences , 2^£ £/Wx , 1. againfl God, 3. againfi Man,Capital,<). not Capital, 126. of Infer iouf nature, 1 34. ^y Statute, 15T. Oyer #»;/ Terminer, 161.
P
An Alphabetical Table.
PAine fort & dure,ix j. Pardon of Courfe,%fo. of Grace, ibid. P leadings $z. Perjuryyifi. Piracy ',77.
Pleas, Declinatory, 228. to the Felo- ny, 243. in Abatement , ibid, in Bar%z<\<\. Prejent.
Principal and Acceffory ,%i ^ Arraign-
ment,zii. Prifon^ioj.
Procefs, upon Appeals and Indigents
209. againfi Jury ,7.56. Provocation^?.
R
REligion, 153. Refcue,n6. Reft it ut ion, 140. Riding armed. Riot ,137. Rohhery,yi] Mumper Prifonyi<srj,
An Alphabetical Table.
SAnttuary , ouflej, 228. Se defendendo^v. Sheriff, 17^ hisTurn,ibid. Sulornatiov,i$i.
T Ales,i $7. Theft hote,i 30.
Tiplitigfltf-
freafon, High Treafoug. Petit TreafoH,%$. Trial, per PatriaM,z$<;. iy Battel Jj
Peers,i67* Turn of the Sheriffs $
V
V Erditt,%67. W Itckraft, 6.
w
THE END.