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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.
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