reinforced the Statute 25 E. 3. and reduced all new Treasons to the old Standard of 25 E. 3. and so all Treasons declared between 25 E. 3. and 1 Ma. were abrogate 3. All Treason includes Felony therefore if the Indictment want proditoriè a Pardon of all Felonies discharges it Now concerning the kinds of High Treason Compassing and imagining the death of the King Queen or Prince and declaring the same by some open Deed. I. What is a Compassing the death Declaring by an open act a design to Depose or Imprison the King is an Overt act to manifest the compassing of his Death II. What a King 1. A King before his Coronation a King within this Statute when the Crown descends upon him 2. A King de facto and not de jure a King within this Act and a Treason against him is punishable though the right Heir get the Crown 3. A Titular King that is not Regnant as the Husband of the Queen not a King within this Act and the Stat. 1 2. Ph. Ma. c. 10. but the Queen is 4. The right Heir to the Crown yet not in Possession therefore is not a King within this Act. III. What the King's Wife It extends not to the Queen Dowager IV. What the eldest Son and Heir of the King within this Act The second Son after the death of the eldest within the Act. The eldest Son of the Queen Regnant within the Statute The Collateral Heir apparent as Roger Mortimer 11 R. 2. the Duke of York 39 H. 6. not Son and Heir within this Act yet Quaere V. What an Overt act requisite to make such comparing Treason 1. An Overt act must be alledged in every such Indictment proved 2. Compassing by bare words is not an Overt act as appears by many temporary Statutes against it 1 El. c. 6. 13 El. c. 1. but the same set down by him in writing is an Overt act yet now it has been adjudged that words are an Overt act and the Law taken accordingly 3. Conspiring the death of the King and providing weapons to effect it or sending Letters to second it assembling People to take the King into their power Lord Cobham's writing Letters to a Foreign King to invade an Overt act Conspiring to levy War no Overt act unless levied because relates to a distinct Treason II. Treason levying War against the King 1. Conspiring or compassing to levy War without a War de facto no Treason but if a War levied the Conspirators Traytors as well as the Actors This appears by the Stat. 13 El. c. 1. that made such Conspiracy Treason during the Queens life 2. Raising a Force to burn or throw down a particular Inclosure only a Riot but if it had been to have gone from Town to Town and cast in all Inclosures Bradshaw's case or to change Religion or to inhance the Salaries of Labourers a levying of War because the Enemy publique 3. Joyning with Rebels pro timore mortis and recessed quam cito potuerunt ad Castles no Treason 3 Inst 10. 4. Holding a Force or Castle against the King's Force a levying of War III. Treason adhering to the King's Enemies giving them Aid within the Land and without 1. What adhering Giving Aid and Comfort to them surrendring the King's Castle for reward 2. What an Enemy The Subject of the King becoming a Rebel he that out of the Realm succours him this not adhering to an Enemy within the Clause An Enemy coming hostilely into England shall be dealt with as an Enemy executed by Marshal Law or ransomed but a Subject assisting shall be dealt with as a Traytor The Scots invading England in the Queens time adjudged Enemies though Scotland then in Amity Lord Herris Case 3 Inst p. 11. 3. Within the Land or without how that Foreign Treason shall be tried 1. At Common Law for a Foreign Treason the Indictment and Trial must be where the Land lies 2. Per Stat. 35 H. 8. c. 2. yet in Force it may be tried or inquired of in B. R. or by Commissiion in any County where the King appears the King's Signiture may be either to the Commission or Warrant thereof Treason done in Ireland is within that Statute Perrot's Case Per Stat. 28 H. 8. c. 15. Treason upon the Sea inquirable and triable by Commission in any County at Common Law it must be before the Lord Admiral IV. Treason Violation 1. The King's Wife extends not to a Dowager if she consent 't is Treason in her 2. The Prince's Wife same Law as before 3. The King 's eldest Daughter then living Thus far of Treason that relates to the King's Person and nearest Relations wherein generally 1. There must be an Overt act to manifest the Evidence and word of mouth is Overt act as it has been adjudged vide the Statute of 13 Car. 2. cap. 1. 2. That it must be made appear by manifest proof and not by conjectures 3. He must be lawfully attaint thereof either by Confession or by his Peers in his life time And therefore if a Person be slain in open War he forfeits nothing neither can he be attaint in such case but by Parliament Thus far of Treasons relating to the King immediately now follows that which is interpretative Treason Killing the Chancellor Treasurer Justice of one Bench or other Justice in Eyre or of Assise or Oyer and Terminer in their place doing their Offices 1. This extends but to the Persons here named not to the Lord Steward Constable or Marshal or Lords of Parliament 2. It extends to those only during their Office 3. It extends only to killing not wounding without death But by Stat. 3 H. 7. c. 14. compassing to kill the King or any of his Councel made Felony Counterfeiting the Great Seal or Privy Seal 1. It must be an actual counterfeiting thereof compassing to do it no Treason 2. Affixing the Great Seal by Chancellor without Warrant no Treason 3. Fixing a new Great Seal to to another Patent is a great Misprision but no Treason nor a Counterfeiting within this Statute 4. Aiders and Consenters to such Counterfeiting are within this Act. 5. The Counterfeiting of the Privy Sign or Sign Manual no Treason within this Act but made so by the Statute 1 Ma. c. 6. V. Treason concerning the Coyn. 1. Counterfeiting the Kings Coyn this was Treason at Common Law and Judgment only as of Petty Treason But whereas Clipping c. is made Treason by subsequent Statutes the Judgment is to be hang'd drawn and quartered because introductive of a new Law Herein considerable 1. What shall be a Counterfeiting Clipping Washing and Filing of Mony for lucre or gain any of the proper mony of the Realm or of other Realms allowed to be current by Proclamation not within this Statute but made High Treason by Stat. 18 El. c. 1. but without corruption of blood or loss of Dower 2. What is Mony
Novemb. 8. 1677. I do allow the Printing and Publishing of this Book Ri. Raynsford PLEAS OF THE CROWN Or a Brief but Full ACCOUNT OF Whatsoever can be found Relating to that Subject LONDON Printed for Richard Tonson under Grays-Inn Gate next Grays-Inn Lane and Jacob Tonson at the Judge's Head in Chancery Lane near Fleetstreet 1678. THE TABLE A. APPEAL p. 146 The kinds of it p. 148 How prosecuted Ibid. Appeal per uxor and requisites p. 149 By the Heir p. 150 Of Robbery p. 152 Of Rape p. 153 The Process p. 154 The Count. ibid. Abatement of the Writ p. 155 Pleas in Barr. p. 156 Approver What. p. 158 Who may be ibid. In what Cases p. 159 Of what Offences p. 160 Appeal 191 p. 192 Approver and Appeller p. 161 Proceedings upon Trial. p. 162 After Trial. p. 163 Plaintiff in Appeal Non-suit p. 165 Time limited to perfect Appeal p. 161 Process in Appeal and Indictment p. 175 Where into County Palatine p. 176 Arraignment p. 134 Accessary who p. 135 B. BURGLARY What a Mansion-house in Case of Burglary p. 70 Where without actual breaking p. 68 Where opening an inner door p. 70 With what intent p. 71 The Indictment ibid. Where triable p. 72 Burning of a House Felony p. 75 Burning ones own house with intent to burn anothers no Felony but a great Misdemeanour p. 74 Clergy not ousted except it be a part of a Mansion-house or Barn with Corn. ibid. Burning a stack of Corn where Felony ibid. Indictment ibid. Bail Difference between Bail and Main-prize p. 83 In what cases Bail to be accepted p. 84 After Judgment p. 86 After Examination ibid. Accessaries no Bail p. 88 Bail virtute brevis ex officio p. 90 Breaking of Prison p. 94 What Prison p. 93 Breach of Peace Affray p. 113 What to be done thereupon and by whom p. 114 Bridges p. 119 C. OFfences wherein is no Corruption of Blood p. 8 Counterfeiting Coin Treason p. 18 Clipping ibid. Conviction of Felo de se where Traversable p. 25 Chance-Medley what p. 26 Commitment of a Justice of Peace how to be done p. 81 Common Inns. What persons may Erect p. 121 Refusing to entertain Indictable ib. Champerty p. 123 Coroner His power p. 141 Whether he may enquire of Rapes or breach of Prison p. 142 Where the Body cannot be seen who shall inquire ibid. His power concerning Appeals ibid. To take abjuration ibid. Clergy who shall have it who not 182 c. Where Accessary and not Principal p. 188 Concealment by Inquest p. 171 Clergy in Robbery where p. 197 No Clergy in Rape p. 200 When Clergy allowable p. 201 Challenge p. 219 D. DEodand 27 p. 28 Demurrer E. ESCAPES Voluntary Involuntary p. 75 Prison and breaking Prison what p. 76 VVho may Arrest or Imprison ibid. Per private Prison who p. 78 Per publick Officer without Process of Law p. 79 Justice of Peace where p. 80 Escape per Officer p. 97 Evidence to petty Jury p. 222 The manner p. 224 What Evidence maintains Indictment p. 225 Execution and Reprieve p. 237 F. PVnishment in Forgery p. 8 Compassing to kill the King or any of his Privy Council p. 17 Felony the kinds thereof p. 23 Felo de se p. 24 Per Infortunium p. 24 Per necessitatem ibid. VVho shall not be said Felo de se p. 25 Conviction of Felo de se traversable ibid. Felony in servants the Stat. 21 H. 8. cap. 7. To whom it extends ibid. Felonious taking quid p. 57 Felonious carrying away quid p. 52 VVhat the Goods of another p. 55 Forfeiture in petty Larceny p. 58 Manslaughter Murder Felony Treason ibid. Felony per Stat. 100 to p. 105 Forcible Entry p. 116 Forcible Detainer ibid. Restitution where and by whom p. 117 Forgery p. 123 Falsifying Attainder p. 234 Forfeiture saved p. 236 G. GOal Delivery Their Power p. 130 H. HEeresie what p. 3 The way to convict of Heresie p. 4 Homicide ex necessitate p. 28 Per Infortunium p. 26 Things observable in Homicide ex necessitate p. 31 Homicide se defendendo p. 33 Homicide voluntary p. 35 The kinds of it ibid. Highways I. INdictment of Murder where p. 45 Indictment of Robbery the form p. 61 Ingrossing Forestalling Regrating p. 123 Mault not Corn or Grain p. 123 Justices of Peace Their Power p. 136 VVhere no Jurisdiction p. 137 VVhere they must certifie Indictment in B.R. ibid. VVhere they may enquire of a Felony within the Verge p. 140 Indictments 164 Requisites ibid. Indictments in Leets and Turns p. 167 Indictments quash'd p. 172 Proof upon Indictments p. 175 Judgment in several cases p. 231 K. KING what and where p. 11 Killing what p. 45 Kings Bench Court It s Jurisdiction p. 128 L. LARCENY p. 49 Simple and mixt ibid. By whom it may be committed p. 53 Larceny complicate p. 64 M. MAnslaughter to kill a man who enters into my house claiming Title p. 33 Manslaughter 34 p. 46 Malice implied p. 47 Or expressed 36 p. 38 Murder p. 37 Executing Martial Law in time of Peace Murder p. 38 Malice continuing p. 40 Misprision of Treason p. 107 Matters of Religion Reviling Sacrament p. 125 Not coming to Church ibid. Common Prayer ibid. Consecration of Bishops p. 126 Disswading from Church ibid. Non-conformity p. 127 Sending Children into Seminaries Poenam ibid. N. NVsances p. 119 O. OYer and Terminer p. 133 The Power ibid. P. PRovocation what not p. 37 VVho shall be said present and abetting a Murder p. 42 Piracy p. 65 How Triable ibid. Perjury p. 125 Principal and Accessary 177 Accessary before p. 178 In Manslaughter no Accessary ibid. Accessaries after p. 180 Things observable in their Arraignment p. 181 Paine fort dure 184 Standing mute two kinds ibid. The Consequence p. 185 Pleas. 186 Process upon Appeals and Indictments p. 175 VVhere into County Palatine p. 176 Pleas to Felony 205 In Barr. p. 205 In Abatement p. 204 Auterfoits acquit or attaint p. 208 Pardons p. 211 Pleading the Pardon p. 213 Process vers Jury p. 216 R. RIOT p. 115 Robbery 95 p. 197 Robbery in Booths p. 199 Robbery in Dwelling-house to the value of 5 s. ibid. S. SHERIFF p. 144 His Power and Office ibid. T. PVnishment in Transportation of Sheep p. 8 High Treason 9 p. 16 VVho are capable of being Guilty of High Treason p. 10 Eldest Son of the King within the Act of Treason 25 Ed. 3. ibid. Overt act in Treason p. 12 Adhering to the Kings Enemies what p. 14 Foreign Treason how triable p. 15 Treason done in Ireland ibid. Treason upon the Sea ibid. Interpretative Treason what p. 17 Killing the Chancellor c. ibid. Counterfeiting Coin and Clipping p. 18 Refusing Oath of Allegiance upon second tender p. 20 VVho shall be said Queen within the Act 25 Ed. 3. p. 12 VVho eldest Son ibid. Petty Treason what The Act against it not taken by Equity p. 22 Misprision of Treason 107 Positive and Negative ibid.
This extends only to proper Mony of this Realm But now 1 Ma. c. 6. Forging or Counterfeiting Mony made currant by Proclamation is High Treason 14 El. c. 3. Forging of Forreign Coin not current here Misprision of Treason in the Forgers their Aiders and Abettors And Note the bare forging of the King's Coin without uttering is Treason The second Offence concerning Mony declared Treason is if any Person bring into this Realm counterfeit Mony 1. It must be Counterfeit 2. Counterfeited to the similitude of English Mony 3. Brought from a Forreign Realm and therefore not from Ireland barely 4. Brought knowingly 5. Brought and not barely uttered here But if false or clip't Mony be found in his hands by the Statute De Moneta if he be suspicious he may be arrested till he have found his Warrant 6. He must merchandize therewith or make payment thereof Concerning High Treason made by the subsequent Statutes in force 5 El. c. 1. Refusing Oath of Supremacy upon second tender Treason without corruption of Blood Extolling power of Bishop of Rome Premunire by bringing in Bulls or putting in execution or reconciling to the See of Rome thereby Treason Bringing in Agnus Dei Premunire 23 El. c. 1. Absolving Subjects from Obedience or reconciling them to Obedience of Rome Treason in 27 El. 2. Priest coming into England not submitting in two days Treason The like for English men in Forreign Seminaries Petty Treason IS confined by Stat. 25 E. 3. to three Particulars 1. Where a Servant kills his Master This extends to some other Cases 1. Servant kills his Mistress 2. Servant kills his Master's Wife 3. Where a Servant upon Malice taken during his Service kills his Master after departure from his Service 2. Wife killing her Husband If Wife and a Stranger kill the Husband petty Treason in the Wife Murder in the Stranger If the Wife or Servant procure a Stranger to kill her Husband or Master the Procurer accessary only to Murder But if she procure a Servant to do it Treason in both 3. Ecclesiastical Secular or Regular kills Superior Note Aiders Abetters and Procurers to Petty Treason are within this Act. This Act not taken by Equity Son kills Father or Mother 't is Petty Treason receiving Meat Drink or Wages The Judgment in Petty Treason for a Man to be hang'd and drawn A Woman to be burnt Whatsoever will make a Man guilty or principal in Murder will make him guilty or principal in Petty Treason But if the Servant kill the Master upon a sudden falling out this is not Petty Treason but Manslaughter If the Servant or Wife be of Confederacy to kill the Husband or Master and be in the same House though not in the same Room they are principal and guilty of Petty Treason for 't is a presence Of Felonies AND first of Felonies of death of a Man Now for Felonies they are either by Common Law or Statute Law Felonies by Common Law of four kinds 1. Such as are committed against the Life 2. Such as are against the Goods of a Man 3. Such as are against the Habitation of a Man 4. Such as are against the Process of Publique Justice Felonies committed against Life of two Natures 1. That which is committed against his own Life Felo de se 2. Committed against another Man's Life involuntarily 1. Per infortunium and therein of Deodands 2. Per necessitatem in Defence of Justice in defence of self 3. Voluntary without Malice with Malice Felo de se 1. The Person 1. As in other Felonies so in this the Person that commits it must be of years of discretion Compos mentis otherwise there is no Forfeiture Therefore if a Lunatick during his Lunacy a Man distract by force of Disease or Non compos mentis kill himself no Felony 2. As in other Felonies the death must ensue within a year and day after stroke 2. The act may be voluntary involuntary in some Cases If A. assault B. and B. falling down with his knife drawn A. in pursuit to kill B. by haste falls down upon the knife A. is Felo de se and forfeits Goods But if B. was standing on his Defence with his knife drawn A. runs upon the Weapon and kills himself not Felo de se 3. Conviction 1. If the Body can be seen then the Conviction before Coroner super visum Corporis not traversable 2. If not seen then before Justice of Peace and then traversable by the Executor or Administrator In the same manner if enquired in B. R. in same County traversable 4. Forfeiture relates to stroke Villain strikes himself Lord seizes his Goods Villain dies King shall have them Of what Joint things in Action all forfeited unless in case of Merchants Joint things several Moieties forfeited But Joint Chattels in Husband and Wife all Forfeit for Offence of Husband Chancemedley Felony of death of another either involuntary or voluntary Involuntary per infortunium ex necessitate Involuntary per infortunium Chancemedley where a Man doing a lawful act without intent of hurt to another and death casually ensues As shooting at Rovers or at a Bird or hewing a Tree and the Hatchet-head flies off or a Schoolmaster in reasonable manner beating a Scholer or a Father his Son or a Master his Servant Doing a lawful thing that may breed danger and giving warning Justing by command of the Prince But if the act be unlawful then death ensuing Manslaughter or Murder Shooting at a Deer in anothers Park the Arrow glanceth and killeth a stander by Manslaughter Throwing stones or shooting in the High-way and death ensuing Manslaughter But if a man knowing people passing by in the street throw a stone over the wall Murder Playing at Hand-sword without command of Prince death ensuing Manslaughter So that an unlawful act without an ill intent makes it Manslaughter with an ill intent Murder And where it is found involuntary per infortunium causeth forfeiture of Goods but a Pardon of Course upon Special matter found Deodand But there is a death per infortunium without the default or procurement of another fall from a Tree or by a Horse or Cart and the thing that occasions the death is Forfeited and Deodand wherein considerable 1. What forfeited as a Deodand If a man fall from a Cart or Ship in Freshwater 't is a Deodand otherwise in Saltwater 2. If an Infant under fourteen be slain by fall from Cart Horse or Mill no Deodand but if slain by a Horse Ox or Mill then a Deodand If a man kill another with any Sword a Deodand 2. When forfeited When found by Inquisition therefore the Jury ought to find the price this is before the Coroner Homicide ex necessitate This of several sorts 1. In reference to Justice 2. In defence of his Person House Goods c. Homicide ex necessitate in reference to Justice of several kinds 1. In execution of Justice 2. In advancement of
Treason out of the Land where triable p. 170 Trespass de muliere abducta cum bonis viri p. 165 Trial quotuplex p. 215 Tales p. 217 Process vers Jury p. 216 Trial per medietat ' linguae p. 220 Per Battel p. 230 V. VERDICT p. 229 No privy Verdict in Cases Capital ibid. W. WITCHCRAFT p. 6 Two Degrees 7 Punishment of the first ibid. Of the second p. 8 Marks for the Authors cited in this Book C.P.C. Coke's Pleas of the Crown S. T. C. Samford's Pleas of the Crown Crom. Crompton's Justice Dal. Dalton's Justice Co. Lib. 4. Coke's Fourth Report 9. R. Coke's Ninth Report c. PLEAS OF THE CROWN THIS Treatise is divided under these Considerations 1. Of the kinds of Offences 2. Of the Incidents to those Offences The kinds of the Offences are distinguished according to the diversity of Laws by which they are introduced viz. Offences By the Common Law By Statute Law Offences by the Common Law distinguish'd according to the degrees of Offence Capital Not Capital Of Capital Offences they are such 1. As are immediately against God 2. Immediately against Man Those that are Offences not Capital by Common Law or Misprisions may be in breach of Peace c. Offences by the Stat. Capital Not Capital The latter are many and not here to be treated of Now 1. concerning Offences Capital that are immediately against Divine Majesty which are Heresie and Witchcraft Concerning Heresie wherein considerable I. What is Heresie At this day all those former Acts which determined certain Points to be Heresie stand repealed and though there be no express Act determining what shall be said Heresie yet the Statute of 1 El. c. 1. directing the High Commission restraining 1. To what formerly determined Heresie by the Canonical Scriptures 2. To what adjudged so by the four first General Councels 3. To what expresly adjudged Heresie by any General Councel by express words of Canonical Scriptures 4. To what so determined II. Who to judge of Heresie 1. The Temporal Judge cannot punish any Person for Heresie by Indictment or otherwise but yet he may take knowledge whether a Tenent be Heresie or no tAs where by the Statute of 2 Hen. 4. now repealed Caesar was committed for saying Although he was Excommunicated by the Archbishop he was not so before God and Warner commited for saying Non Tenetur solvere decimas and thereupon imprisoned In a Habeas Corpus by the former and special Justification in an Action brought by the latter adjudged neither Heresie 2. All those Statutes that gave power to Arrest or Imprison for Heresie viz. 2 Hen. 4.15 2 H. 5.17 5 R. 2. c. 5. 1 2 Ph. Mar. c. 6. are repealed by 1 Eliz. III. The way to Convict of Heresie 1. By the Common Law 1. By the Archbishops and Bishops in a General Synod 2. By the Bishop of the Diocess 2. By Stat. 23 H. 8. c. 9. By the Archbishop in case of assent or neglect of his Suffragan The punishment of the party convict of Heresie Upon Certificate of such Conviction a Writ De Haeretico Comburendo granted without which they cannot proceed to any temporal punishment But if after Conviction he abjure his Opinion his life is saved But if he relapse after Abjuration then irrecoverable But by the Statute 2 H. 5. c. 7. all Statutes which introduc'd any Forfeiture stand repealed Neither did the Common Law inflict any Forfeiture because the proceedings were only pro salute animae and now by the Statute of 29 C. 2. the Writ De Haeretico Comburendo is taken away Witchcraft WItchcraft at Common Law punished with death as Heresie by Writ De Haeretico Comburendo The Statute of 1 Jac. 12. the only Law now in force against it and divides it into two Degrees I. Witchcraft in the first Degree made Felony without Clergy divided into four Species 1. Invocation or Conjuration of an Evil Spirit 2. Consult covenant with entertain employ feed or reward any Evil Spirit to any intent although no act done thereupon 3. Take up any dead Person or any part thereof to be employed or used in Witchcraft Charm although not actually used or employed 4. Exercise any Witchcraft Inchantment Charm or Sorcery whereby any Person shall be killed destroyed consumed or lamed in his or her Body or any part thereof which requires the act to be done viz. laming consuming These and all Accessory before to suffer as Felons without Clergy because not specially excepted II. Witchcraft in the second Degree 1. To take upon them by Witchcraft Inchantment Charm or Sorcery to tell where Treasure is to be found They that take upon them to do it though they cannot yet within this Law 2. Or where Goods lost or stollen may be found 3. Or to the intent to provoke any Person to unlawful Love these Clauses come under the word take upon 4. Whereby Goods or Chattels shall be destroyed which requires an actual destroying and not a bare taking upon them 5. Or shall use Witchcraft to hurt any Person though the same be not effected The punishment of these 1. The first Offence a years Imprisonment and Pillory 2. The second Offence Felony but this requires 1. An actual conviction and Judgment for the first 2. The second Offence must be committed after Judgment for the first The like in Forgery Transportation of Sheep c. But the Consequence upon Attainder viz. Corruption of Blood and loss of Dower and the Lands Forfeiture saved And Note a Saving against Corruption of Blood saves the Descent and saving the Land to the Heir prevents corruption of Blood as to that Concerning Offences against men immediately distinguished in the Judgment or Event Capital or not Capital Capital either by Common Law or Statute and these either Treason or Felonies Treason either High Treason or Petty Treason High Treason AND this is thought an Offence at Common Law yet because there be some mixture of Introductions of new Treasons by Statutes would be considered together 1. Considering High Treason it is distinguished into four kinds 1. That which concerns immediately the King his Wife or Children 2. That which concerns his Office in the Administration of Justice 3. That which concerns his Seal 4. That which concerns his Coyn. Before we come to these Particulars some things to be generally premised 1. That those that have such disability upon them that disables them to act reasonably cannot commit Treason viz. Non compos mentis and Infants within Age of discretion yet Quaere 3 H. 7. And therefore if a Traytor becomes Non compos mentis before Conviction he shall not be Arreigned if after Conviction he shall not be executed An Alien Enemy committing an hostile act dealt with as an Enemy An Alien Army committing any Treason are Traytors within the Law 2. The Statute of 25 E. 3. reduced and settled all Treasons and by that means all Treasons that were before are reduced and the 1 Ma.
there if slain Manslaughter Malefactors come into a Park Parker shoots they fly he pursues they kill him Murder in all for their first entry was with malitious intent 3. Malice implied in respect of person killing A. assaults B. to rob B. who resists A. kills him Murder Prisoner by Duress of Goaler comes to an untimely end Murder Executing Martial Law in time of Peace Murder Malice express considerable 1. In the principal in the first degree that doth the act 2. In the principal in the second degree that is aiding abetting c. 3. In Accessaries before Fact 1. Principal in first degree If a person have no particular malice against any particular person but comes with general resolution against all Opposers if act unlawful and death ensue it is Murder As if it be to commit Riot enter into a Park 2. If there be malice between A. and B. and they meet and fight although A. gives first blow yet if B. kill him Murder If there be malice between A. and B. A. assaults B. and flies to wall there in his own defence kills B. by some Murder but Quaere If there be a quarrel between A. B. A. challenges B. who declines it but at length upon importunity and to vindicate his Reputation meets and fights and kills A. Murder 14 Jac. Taverner's Case If A. and B. fall out upon a sudden and they agree presently to fight and each fetches a Weapon go into field and one kills the other this only Manslaughter because the blood never cooled but otherwise if they had appointed to fight next day A. and B. fall out A. saith he will not strike but will give B. a pot of Ale to touch him B. strikes A. kills him Murder If A. and B. are in malice A. challenges the field B. refuses to meet but saith he shall go to morrow to such a Town A. meets him and assaults him B. kills him Manslaughter and no Murder The Child of A. beats the Child of B. who runs home to his Father and he runs three quarters of a mile beats the other Child and he dies Manslaughter 3. If malice be not continuing to death no Murder A. and B. combat upon malice and are parted and after they meet and combat upon the sudden and one kills the other by some not Murder because the first Malice satisfied If the party killed had wounded at first combat the party slaying Quaere A. and B. are at malice and reconciled and after upon a new occasion fall out and kill no Murder 4. Tho malice did not rise so high as death but intended only to beat the party yet if malice it is Murder if death ensue A Keeper of Esterly Park finds a Boy stealing wood and binds him to his Horse tail Horse runs away and kills Child Murder for it was a deliberate act Cr. Car. 131. Holloway's Case 5. The malice intended to one egreditur persona and makes death of another this act makes it Murder and qualifies it in same manner as if it had had its due effects A. having malice at B. strikes at him and misses him and kills C. this is murder in A. and if it had been without malice Manslaughter A. having malice at B. assaults him and kills his Servant Murder A. lays poison to kill B. and C. by misadventure takes it and dies Murder in A. contrary if it had been laid to kill Rats then per infortunium A. and B. combat upon malice C. comes to part them A. kills C. per ascuns Murder in both and if the falling out were sudden then only Manslaughter in him that kills him Quaere 6. Malice must be of Corporal danger to the party 2. Principal in second degree that are aiding and abetting 1. If two or more come together to kill rob or beat a man or to commit a Riot and one of them kills a man this is murder in all them of that party that are present aiding or abetting him thereunto or that were ready to aid him though but lookers on otherwise if they came there by chance 2. All are said to be present that are in the same House though in another Room or in the same Park though half a mile distant and out of view therefore if they come to commit a Felony such persons aiding and abetting shall be said to be present 3. A. and B. fall out and appoint field A. takes C. his Second B. takes D. his Second A. kills B. this is doubtless Murder in C. and it hath been held Murder in D. also for it is a compact but it seems otherwise 4. If A. and B. having malice praepense meet and fight and C. the Servant of A. not acquainted therewith takes part with A. his Master and kills B. this is Murder in A. and only Manslaughter in C. the same Law if C. came in suddenly and took part with A. and kill B. 3. What malice in Accessary before Fact A. commands B. to kill C. with a Gun he kills him with a Sword A. is accessary to this Murder because killing is the substance But if he command B. to kill C. and he by mistake kill D. this is Murder in B. but A. is not accessary thereunto A. commands B. to beat C. who beats him whereof he dies this is Murder in B. and A. is accessary because death ensued upon the act commanded 4. What is killing Poison Weapon Gun Bow Crushing Bruising Smothering Strangling Famishing inciting Dogs laying a Sick man in the cold Laying an Infant in an Orchard under Leaves and he is stricken with a Kite A man keeps a Beast used to strike knowingly and ties it not up the Beast kills a man Felony by some by others not but a gross misdemeanour 3 E. 3. Cor. 311. 5. What person killed It must be a person in rerum natura If a Woman quick with Child take a potion to kill it and accordingly it is destroyed without being born alive a great misprision but no Felony but if born alive and after dies of that potion it is Murder The like if dies of a stroke given by another in like manner counsel before birth to destroy it and after the Child is born destroyed accordingly the counsellor is accessary 6. What a place within the Realm Stroke and death in partibus transmarinis not punishable at Common Law but before Constable and Marshal Stroke and death upon Sea inquirable before Admiral according to Stat. 28 H. 8. c. 13. But stroke upon the Sea and death upon the Body of the County not punishable at all If stroke in one County and death in another the party shall be indicted where death hapned An accessary in County of A. to a Felony committed in County of B. the accessary after Certificate of the Conviction and Attainder of the principal may be Arreigned in the said County of A. where he was accessary 7. The party must die within year and day of stroke
poison c. Manslaughter KILLING another upon a sudden falling out or provocation or unjustifiable act Manslaughter 1. What a sudden falling out Two combat and part and presently come together and fight or one presently fetcheth a Weapon and killeth the other or they presently fetch them weapons and go into the field and one kills the other Manslaughter Diverse Rioters enter into anothers house forcibly and eject the people afterwards they being in possession the party ejected with twenty more comes in the night to the house endeavours to fire it one within shoots and kills one of the assailants and ruled to be Manslaughter because their entry and holding with force illegal and not Murder because sudden provocation So A. claims title to a house of B. A. attempts to enter and shoots at the house B. shoots and kills A. adjudged Manslaughter Two fall out and fight one breaks his Sword a stranger standing by sends him another and he kills therewith Manslaughter in both 2. What a sudden provocation Two strives for the wall and one kills the other Manslaughter 3. What unlawful act whereupon death ensuing will make Manslaughter If the unlawful act be deliberate and tend to the personal hurt of any immediately or by way of necessary consequence death ensuing Murder But if either such deliberation or intent of personal hurt be wanting Manslaughter Two play at Foils and one kills the other Manslaughter Sir John Chicester's Case A man throws a stone at another which glanceth and killeth another Manslaughter and not Murder because no malitious intention to hurt not per infortunium because doing an unlawful act There is a particular Manslaughter wherein Clergy is oust per Stat. 1 Jac. 8. wherein 1. He that is ousted of Clergy by that Statute must be especially Indicted pursuant to that Statute 2. It extends to him that actually gave stroke not to those that are present 3. Need not Conclude contra formam Statuti 4. Although the Indictment be special upon that Statute yet the Jury may find general Manslaughter 23 Car. B. R. Page's Case Larceny WE come to Offences Capital which refer to the Goods of any Person viz. Larceny which is of two kinds Simple Larceny Mixt and complexed Larceny Simple Larceny of two kinds Grand Larceny of value of 12 pence Petit Larceny under that value Simple Larceny a felonious and fraudulent taking away by any person of the meer personal goods of another not from the person nor out of his house to the value of 12 pence I. What shall be said a Felonious taking Imports two things 1. A taking necessarily the Indictment must be Cepit if it be Felony abduxit Equum not sufficient If a person finds goods lost and converts them though it was animo furandi yet no Felony If a man hath a bare charge of goods Felony may be by him committed As a Butler that hath a Charge of Plate Shepheard of sheep the like of him that hath a bare special use as the guest that hath Plate set before him But he that hath a possession by delivery cannot thereof commit Felony A Carrier hath goods delivered to him and carries them away no Felony A Clothier delivers Yarn to a Weaver to weave he carries or imbezels it no Felony But this hath two Exceptions 1. If the privity be determin'd then it may be Felony A. delivers a Pack or Tun of Wine to a Carrier he opens it and takes out Goods or Wine animo furandi Felony So if A. delivers goods to B. to carry to a certain place appointed and after takes it animo furandi Felony 2. By Stat. 21 H. 8. c. 7. whereby if a Servant goes away with goods of his Masters delivered to him above value of 40 shillings herein 1. Extends not to Apprentice or Servant within eighteen years 2. Requires a Delivery If one Servant deliver goods to the other this is a delivery by Master If the Master deliver an Obligation or deliver Cattel to sell and Servant receives money and departs with it no Felony like if he had gone away with Obligation 3. He must go away with it Wastfully consuming thereof no Felony 4. Now by Stat. 1 E. 6. c. 12. he may have his Clergy 5. He must be a Servant at time of delivery and going away therefore for imbezelling after Master's death Stat. 3◠H. 6. c. 1. is provided 6. If a Servant receive his Masters Rents and go away with them not within the Statute If a man seeing a Horse in the Pasture of the Owner having a mind to steal him obtains a Replevin and thereby hath the Horse delivered this a Felonious taking If A. feloniously take my Horse and B. feloniously takes him from him B. may be appealed or indicted as of a felonious taking from me Stat. 33 H. 8. c. 1. II. What a carrying away A Guest takes sheets out of the bed brings them into Hall with an intent to carry them away but is apprehended before this a taking away A. takes horse of B. with an intent to steal him but is apprehended before he can get out of Pasture this a taking away A. kills sheep strips them carries away their skins Felony so if he pull of the wooll III. By whom and who such a person as may commit Larceny An Infant under fourteen years may commit Larceny but prudence to respite Judgment yet under fourteen burnt in the hand Presidents A Feme covert may by her own act commit Larceny and in such case the husband may be Accessary to the wife but not è converso in receiving her But she cannot feloniously take her husband's goods and though she take and deliver them to a stranger yet no felony in the stranger If husband and wife do both a felony this is a felony in both and both shall be arreigned for it though some Opinions to the contrary which Opinions are now Law If wife commits murder by coercion of her husband murder in both but if theft no Felony in her but a bare Command excuseth her not But if a servant commit theft by coercion of his master it is no Felony IV. What meer personal Goods 1. If they are in the realty or annexed thereunto no Larceny As Corn or Grass growing Apples on Trees stealing a Chest of Charters no Felony though Chest above value Taking Lead off a Church no Felony otherwise if he leave it a while and then come and take it Taking an Infant Ward no Felony 2. If they are of a base Nature as Mastiffs Dogs Bears Foxes Monkeys Ferrets or their Whelps no Felony of them but of Hawks reclaimed Felony may be V. What said the Goods of another 1. He that hath a special property as Bailiff c. they are his goods pro tempore 2. He that takes the goods of a Chappel in time of vacation indictable pro bonis Capellae so bona Parochianorum bona mortuorum bona ignoti c.
and per Stat. 25 H. 8. c. 3. the standing Mute not directly answering or challenging above twenty Not oust of Clergy in Appeals unless Convict by Verdict or Confession Accessary before Fact maliciously oust of Clergy in all cases per 4 5 Ph. Ma. c. 4. 3. Wilful Murder of Malice prepense oust of Clergy in all cases per Stat. 23 H. 8. c. 1. 25 H. 8. c. 3. Accessary before maliciously ousted in all cases per 4 5 Ph. Ma. c. 4. 4. Arson of Houses or Barns full of Corn Principal oust of Clergy in all cases viz. sur Conviction upon Verdict or Confession per 23 H. 8. c. 1. upon standing Mute not direct answering challenge above twenty per Stat. 25 H. 8. c. 3. Accessary ousted of Clergy in all cases per 4 5 Phil. Ma. 5. Simple Burglary Principal ousted of Clergy if Outlawed Convict by Verdict or Confession Not ousted if stand Mute challenge above twenty or not answering Accessary before or after not ousted of Clergy 6. Burglary any person being in the House or put in fear or dread Principal oust of Clergy in all cases viz. per Stat. 1 E. 6. 12. in case of any Conviction or Attainder and per 25 H. 8. c. 3. revived per 5 6 E. 6. c. 10. it takes away Clergy where above twenty challenged But Accessary not ousted of Clergy for Accessaries before vide 4 5 Ph. Ma. 4. 7. Robbery which hath several qualifications with these considerations 1. In or near the High-way 2. In the Dwelling-house 1. Putting party his wife or servants in fear 2. Party his wife or servants in house but not in fear 3. Neither party his wife nor servants in the house nor put in fear where it extends to the value of five shillings In Appeals or Indictments against Principal and Accessary per Stat. W. 1. c. 14. Process of Outlary must stay against Accessary till Principal attaint But if it be an Appeal by Writ which is general till Declaration the Plaintiff must at his peril distinguish the Process for if he take his Exigent against all he must Count against all as Principals An Appeal against divers one appears and pleads to the Writ or in Barr which goes to all Process of Outlary shall stay against rest till Plea determined An Indictment or Appeal may be removed in B. R. by Certiorari but it must accord with the Appeal Upon an Appeal moved per Certiorari the Plaintiff is without day and to compel Plaintiff to proceed Defendant may take out a Scire Facias and upon 2 Nisies or a Scire Feci and default Plaintiff discharged But the Plaintiff upon such Appeal removed may have Capias Exigent If Defendant comes in by Capias and after appearance make default a new Capias if upon Exigent a new Exigent and upon second appearance shall plead de novo for the first Issue is sine die Arraignment 1. IN what manner a Person is to be Arraigned The Prisoner all the time of his Arraignment ought to be in Iron 2. Where Arraignment upon several Appeals or Indictments If a man be appealed of Robbery or Death at the Suit of one he shall be Arraigned and Tried at Suit of another because they have several in the Judgments And now the same Law is of an Indictment of Robbery because by Stat. 21 H. 8. c. 11. the party is to have Restitution But if Appeal by one be not commenced till after Attainder at Suit of another he shall not be Arraigned upon the other Suit but if the first Attainder be pardoned he shall be Arraigned upon the second Appeal commenced after Attainder But after Attainder of Felony he may be Arraigned of Treason for King's Interest By the Common Law a Clerk convict should have answered all Felonies and were acquit or convict at Suit of others But this was remedied per Stat. 25 E. 3. c. 4. per Clero and therefore after that Stat. the Clerk convict and delivered to the Ordinary was discharged of all former Felonies whereof he was not Arraigned before Clergy and that those though other Offences were not within Clergy Dyer 214. But now by Stat. 8 El. c. 4. after Purgation and 18 El. c. 7. after burning in the hand he shall be put to answer former Felonies upon Appeal or Indictment 3. Concerning Arraignment of Principal and Accessary 1. Who shall be said an Accessary 1. Who an Accessary Before After 1. In Treason no Accessaries but all Principals a Procurer before or a Receiver knowingly after is guilty as Principal in High Treason 2. Where an Act of Parliament makes a Felony it doth incidently make such Accessary as would be Accessary before or after to a Felony at Common Law as in Case of Buggery Rape c. 3. Accessary cannot be guilty of Petty Treason where Principal but Murder 4. If divers come to commit an unlawful act and be present at time of Felony committed though one of them only doth it they are all Principals So if one present move the other to strike And now to pursue the point where Clergy allowable in Robbery 1. From the Person Without putting in fear but clam secrete by Stat. 8 El. c. 4. Principal in all cases oust of Clergy Accessary not oust With putting in fear Robbery in or near the High-way 1. Principal in all cases oust of Clergy viz. Appeal or Indictment by 23 H. 8. c. 7. Convict 23 H. 8. c. 1. Attaint 1 E. 6. c. 12. Challenge above twenty by Stat. 25 H. 8. c. 3.5 6 E. 6. c. 14. 2. Accessary before oust of Clergy in all cases by 4 5 Ph. Ma. c. 4. 2. From Dwelling-house and this of three kinds 1. Owner wife or servants being in the house or put in fear here Clergy taken away 1. As to Principal taken away per 23 H. 8. c. 1. in case of Conviction by Verdict or Confession and per 25 H. 8. c. 3. revived and per 5 6 E. 6. c. 10. In cases of standing mute challenge ultra twenty not directly answering Also to a Conviction in foreign County if it appear by Examination not to be within Clergy in the same County 2. Accessaries before in all cases ousted of Clergy per Stat. 4 5 Ph. Ma. c. 4. Note A Stranger in the house brings it not within Statute 2. Robbing any person by day or night any person being in the same house and put in fear Principals oust of Clergy per 1 E. 6. c. 12. in all cases but challenging twenty and by it 5 6 E. 6. in a foreign County Clergy upon Examination taken away Accessaries Clergy taken away per 4 5 Ph. Ma. c. 4. in all cases 3. Robbing any person in his Dwelling-house the owner his wife or children being in any part of the house or within the precincts thereof though they be not put in fear and this extends to Booths in Fairs Principal oust of Clergy
Examine Offenders and Informers 2. The Examination of the Offender not upon Oath but Subscribed by him 3. Examination of others must be upon Oath 4. This must be certified by Justices 1. If it be a small Felony to Sessions 2. If it be a great Felony c. to next Goal Delivery 5. These Examinations if persons dead or absent may be given in Evidence But Prudence to have the Justice or his Clerk sworn to truth of Examinations 6. But Examinations taken upon Cause of Divorce for a forcible Marriage not allowed to be read upon an Indictment upon 3 H. 7. for same Marriage 2. By whom 1. Wife or her Examination not to be used for or against her Husband 2. The Examination of an Infant of Thirteen nay of Nine allowed in some Cases 3. One Attaint of Conspiracy Forgery or Perjury not allowed a Witness 4. One duly set on Pillory 3. In what manner 1. Evidence for King always upon Oath but Evidence for Prisoner not upon Oath yet no known Law that restrains it But by some Statutes in some Cases Evidence for Prisoner upon Oath as 31 El. c. 4. 4 Jac. c. 2. The Confession of the Offender taken upon Examination Evidence with Oath not of the Informer 4. Where Evidence maintains the Indictment 1. If the Indictment be of a Felony at one day though the Evidence be of another day the Jury may find generally against Prisoner and leave the person that is interessed in point of time to falsifie or the Jury may find the true day upon their Verdict and then the forfeiture shall relate thither 2. If the Indictment lay the Felony at one place the Evidence proving the Fact at another place in the same County maintains the Indictment 3. If the Indictment and Evidence differ in specie mortis then it maintains it not as Indictment of Poisoning Evidence of stabbing maintains it not But if the Indictment be of poisoning with one kind of Poison and the Evidence of another or if the killing with a Dagger and the Evidence is of killing with a Staff there it maintains the Indictment for it agrees in substance and kind The like of Accessary before though Poison or Weapon differ 4. Indictment that A. gave a mortal blow and B. C. and D. were presentes abettantes Evidence that B. gave the blow and A. C. and D. presentes abettantes yet it maintains the Indictment 5. Indictment of A. as Accessary to B. and C. Evidence proves him only Accessary to B. maintains the Indictment 6. Indictment of Murder ex malitia praecogit ' Evidence of malice in Law as killing an Officer without provocation yet maintains the Indictment 7. Evidence upon Statute of stabbing 21 Jac. Evidence that the dead stroke first yet Evidence to mantain Indictment 23 Car ' Howards 8. Two Indicted as Principals Evidence proves one as Accessary before he shall be discharged of that Indictment 28 H. 8.5 9. Vid. Stat. 21 Jac. c. 27. Mother endeavouring to conceal the death of her Bastard-child shall suffer death as in case of Murder unless she prove by one Witness that Child was born dead Vide Act. 17 Car. infine for the further Relief of his Majesties Army in the Northern parts Act continued till end of next Sessions continued over till some Act of Parliament for their continuance or discontinuance Verdict VERDICT in Cases Capital 1. It must be given and Jury cannot be discharged till it be given 2. It must be given openly in Court and no privy Verdict 3. It may be found Specially as an Indictment of Murder the Jury may find him Guilty 1. Of Manslaughter 2. Per Infortunium 3. Se Defendendo But then it must find the manner of it that Court may Judge thereof so to the value or manner of the Larceny Now we should come to Trial By Battel Process Vide the whole Process there of C.P.C. 27. Judgment in several Cases I. IN High Treason In all Cases except Counterfeiting Coin Drawn Hang'd Entrals taken out and burnt Head cut off Body quartered and Quarters hang'd up 2. In Counterfeiting Coin Drawn and Hang'd but the Judgment of Women in those Cases is Drawn and Burnt II. In Petty Treason 1. For a Man Drawn and Hang'd 2. For a Woman Drawn and Burnt III. In Felony Hang'd till Dead and this cannot be altered by King to Beheading IV. In Petty Larceny To be Whipt Forfeits Goods V. Death per Infortunium No express Judgment yet Forfeits Goods VI. Death se defendendo No express Judgment yet Forfeits Goods Misprision of Treason Forfeits Goods Forfeits Profits of Land during Life perpetual Imprisonment Vide for Seisure of Goods 1. Not before Indictment 2. Not removed before Attainder 1 R. 3. c. 3. Falsifying of Attainders 1. BY the Party by Writ of Error 2. What others may falsifie it 1. A Purchaser may falsifie an Attainder of the Felon by Outlary or Confession in this point if he Purchase before Attainder and after time of Felony supposed 2. A Purchaser mesne between the time of Felony committed and the Attainder by Verdict cannot falsifie in point of Offence but he may for the times 3. If Attainder was by such as had no good Commission the Party himself may falsifie Attainder Cas Com. Leicest 4. If the Principal Attainted and then Accessary and Principal reverse the Attainder the Attainder of the Accessary is eo ipso avoided and his Heirs may have Mortdanc ' against Lord per Escheat 5. Attaint of Treason and then the Treason is pardoned by Act of Parliament the Party or his Heir shall falsifie Attainder 6. In Case of Goods 1. Fugam fecit found by Coroner cannot be falsified though upon his Arraignment it be found he did not fly but if Indictment be void or insufficient no Forfeiture 2. A man Indicted before Justices of Oyer and Terminer acquit by Verdict and found he fled and the particulars of his Goods found they may be Traversed 3. Default till Exigent though after acquitted Goods Forfeited for it is a fugam fecit in Law But if the Indictment Appeal or Process insufficient their Forfeiture saved so if it be reversed by Errour or pardoned before Exigent Memorandum Flight or Exigent in case of Petty Larceny Forfeits Goods Execution and Reprieve 1. EXECUTION must be pursuant to Judgment and cannot be altered by King as from Beheading to Hanging 2. But King may pardon part of the Execution as in Treason he may pardon all but Beheading 3. It must be done by proper Officer 4. If a Woman Convict of Treason and Felony be quick with Child she shall have one Reprieve but not second time Vn est trove culp ' de Treason Felony c. Reprieve devant Judgment Roy Mort ' uncore Judgment poit FINIS Books printed for Richard Tonson THE Courtiers Calling shewing the ways of making a Fortune and the Art of Living at Court By a Person of Honour Price 1 s. 6 d. Don Carlos