si minus idoneus sit levius castigatur Si fortuito incendium factum sit D. 49.9.11 venia indiget uisi tam lata culpa fuit ut Luxuriae aut dolo sit proxima Hitherto of criminal Pleas that are perpetrated against the King and Common-wealth mediately but principaliter in singulas personas I proceed to those that immediately touch the King and his Crown and they are 1. High Treason Crimen laesae Majestatis Stamford telleth us that the King is the Preserver nourisher and defender of all his People and that by his great travel study and labour his People only enjoy their Lives Lands and Goods And as the body of Man cannot live without a Head but will fall to the ground so the Realm cannot be governed without a Head which is the King Agreable to that of Seneca Ille est vinculum per quod Respublica cohaeret c. And therefore we his loving Subjects are obliged to watch for that him wakes for us And primum virtutis opus est servare servantem caetera If so what an abominable thing must it be to be a violator of Kingly Majesty Crime de Masesty sayes the Mirror est un peche horrible fait al Roy c. Tacitus calls Crimen Majestatis vinculum necessitatem silendi Omnium acousationum complementum And in the Civil Law it is said thus D. 48.4.1 Proximum Sacrilegio crimen est quod Majestatis dicitur id est crimini quo divina Majestas pulsatur High Treason does extend to several parts or kinds viz. Death to Violation to Leaving of Warr to Adhering to the Kings Enemies to Counterfeiting the Great Seal Privy Seal and the Kings Coyn to the bringing into this Realm counterfeit Money to the similitude of His Majesties Coyn of these several parts in their order 1. Touching Death 1. To compass or imagine the death of the King is Crimen laesae Majestatis as appears by Britton and Fleta Briiton thus Grand Treason est a compasser nostre mort Fleta hath this words Si quis mortem Regis ausu temerario machinatus fuerit c. quamvis voluntatem non perduxit ad effectum To depose the King or to take the King by force and strong hand and to imprison him untill he hath yeilded to certain demands this is a sufficient overt Act to prove the compassing and imagination of the death of the King for this is upon the matter to make the King subject and to despoil him of his Kingly Office of Royal Government And so it was resolved by all the Judges of England Hill 1. Jac. Regis in the Case of the Lord Cobham Lord Gray Watson and Clarke Seminary Priests So if divers conspire the death of the King and the manner how and thereupon provide weapons powder poyson assay harness send Letters c. or the like for execution of the Conspiracy this is a sufficient overt act to prove the compassing and imagination of the Kings death If any man shall attempt to make himself so strong that the King shall not be able to resist him he is guilty of Rebellion In the like manner the Law interpreteth that in every Rebellion there is a machination against the life of the King and his deposing For a Rebel will not suffer that King to live or reign which may afterwards punish or revenge such the treason or Rebellion These things are confirmed 1. by the Imperial or Civil Law Vide D. 48.4.1 ad Legem Juliam Majestatis whereby to do any thing against the safety of the Prince is holden to be treason 2. By the force of reason because it cannot be that which hath once given Law to the King should ever permit that the King should recover his former Authority or live least at any time he should recover it 3. By examplss drawn out of our English History as of Edward the Second and Richard the Second who being by force of Armes gotten by Subjects into their power were not long after deposed also and made away The Civil Law Quamvis regulariter ratione solius consensus nemo ad poenam obligatur sed secuto demum actu Aliud tamen obtinet in crimine in Principe in quo voluntas punitur sed intellige talem voluntatem cum qua conjunctum est initium facti i. e. factio vel conjuratio Sola enim nuda voluntas puniri nequit Note that there is difference taken by our Law between felony and High treason for it is not felony unless there be some act done Non efficit conatus nisi sequatur effectus But if one compass or imagine the death of the King who is the Head of the Common-wealth and declares his compassing or imagination by words or Writing it is High treason Doct. and Stud. lib. 2. cap. 41. Co. 3. Inst f. 5.12 H. 8.36 b. 13. H. 8.13 Bendlones Rep. Smith v. Spurle And therefore these following words were adjudged High treason viz. If the King dye without Issue Male that he would be King and also the party arraigned spake that if the King should commit him to Prison that he would kill him with his dagger So one Crobagan an Irish man was arraigned of Treason for that he being the Kings Subject at Lisbone in Spain Cro. 3. part Crohagans Case f. 332. used these words I will kill the King innuendo Dominum Carolum Regem Angliae if I may come unto him and that in August 9. Car. Regis he came into England for the same purpose To this he pleaded Not-guilty and was tryed by a Jury of Middlesex and it was directly proved by two Merchants that he spake these words at Lisbone in Spain in great heat of speech with Captain Baske and added these words Because he is an Heretick and for that his traiterous intent and the imagination of his heart is declared by these words it was held High treason by the course of the Common Law and within the express words of the Statute of 25. E. 3. And he coming into England and being arrrested by Warrant for this cause most insolently put his finger into his mouth and scornfully pulling it out said I care not this for your King c. all which speeches and actions though he now denyed the Jury found him guilty whereupon he had Judgment accordingly He confessed that he was a Dominican Fryer and made Priest in Spain And although this and his returning into England to seduce the Liege-People were Treason by the Stat. of 23. Eliz. yet the Kings Atturney said he would not proceed against him for that cause but upon the Stat. of 25. E. 3. of Treason So one Henry Challercomb was indicted of Treason for words and was found guilty and executed So John Williams was also indicted found guilty and executed for writing a Treasonable Book called Balaam Case These two last Presidents you may see cited in Pyne's Case in Crokes third part of his Reports It is commonly
said That bare words may make an Heretick but not a Traitor without an overt Act And therefore to make compassing by bare words or sayings High treason it must be by some particular Statute such were the Statutes of 26. H. 8. c. 13. 1. E. 6. c. 13.1 2. Phil. and Mar. c. 9.1 Eliz. c. 6.13 Eliz. c. 1. 14. Eliz c. 1. but all these are either repealed or expired Co. 3 Inst f. 140. yet compassings or imaginations against the King by word without an overt Act is an High misprision Note that there is a Law made for the Preservation of His now Majestie 's Person and Government 13. Car. II. Reg. c. 1. against Treasonable and seditious practises during his natural life which God long continue proceeding from Printing Writing Preaching or malicious and advised speaking Note further that to calculate or seek to know by setting of a figure or Witchcraft how long the King shall Reign or live Co. 3. Inst f. 6. is no Treason for it is no compassing or the imagination of the death of the King within the Stat. of 25. E. 3. And this appeareth by the Judgment of the Parliament in 23. Eliz. whereby this offence was made felony during the life of Q. Elizabeth which before was punishable by fine and imprisonment But Scipio Gentilis in his first Book De conjuratione sayes De vita Principis inquirere praesertim per Astrologos capitale esse neque hoc solum sed etiam de ea dubitare vel desperare pro crimine Majestatis bahitum esse si ea desperatio indiciis esset aliquibus patefacta Thus much of the King himself If any do compass or imagine the death of the Queen Confort or Prince 25. E. 3. c. 2. De proditionibus the Kings Son being Heir apparent to the Crown for the time being and declare it by some overt Act the very intent is Treason as in case of the King himself If a man slay the Chancellor Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Justices of Assize and all other Justices assigned to hear and determine 25. E. 3. c. 2. being in their places doing their Offices And the reason wherefore it is Treason in these Cases is because sitting judicially in their places that is in the Kings Courts and doing their Office in administration of Justice they represent the Kings Person who by his Oath is bound that the same be done 2. Touching violation or Carnal knowledge To violate or to carnally know the Kings Companion 25. E. 3. c. 2. or the Kings eldest Daughter unmarried or the Wife of the Kings eldest Son and Heir apparent is High treason The reason that the eldest Daughter only is mentioned in Stat. of 25. E. 3. is for that for defaut of Issue Male she only is inheritable to Crown 3. Touching War To levy War against our Lord the King is High treason 25. E. 3. c. 2. This was so by the Common Law for no Subject can levy War within the Realm without Authority from the King for to him it only belongeth F. N. B. 113. Co. lib. 2. Wisemans Case f. 15. b. In the Codes of Justinian is extant the Constitution of Valentinian and Valens Nulli prorsus nobis insciis atque inconsultis quorumlibet Armorum movendorum copia tribuatur Huc pertinet illud Augustius Ordo naturalis mortalium paci accommodatus hoc poscit ut suscipiendi Belli auctoritas atque Consilium penes Principes sit If any levy War to expulse Strangers to deliver men out of Prison to remove Counsellors Co. 3. Inst f. 9. or against any Statute or to any other end pretending Reformation this is levying of War against the King because they take upon them Royal Authority which is against the King So if any with Strength and Weapons invasive and defensive doth hold and defend a Castle or Fort Co. 3. Inst f. 10. against the King and his Power this is levying of War against the King within the Statute of 25. E. 3. One Thomas Bensted was indicted and arraigned before special Commissioners of Oyer and Terminer in Southwark Cro. 3. part Bensteds Cafe f. 583. wherem all the Justices and Barons were in Commission and present at which time upon Conference with all the Justices it was resolved First that going to Lambeth House in warlike manner to surprize the Arch-Bishop who was a Privy Counsellor it being with Drums and a multitude as the Indictment was to the number of 300. persons was Treason And Secondly It was resolved by ten of the said Justices seriatim that the breaking of a Prison wherein Traitors be in Durance and causing them to escape was Treason although the Party did not know that there was any Traitors three upon the Stat. of 1 H. 6. c. 5. And so to break a Prison whereby Felons escape is felony without knowing them to be imprisoned for such offence Note A Compassing or Conspiracy to levy War is no Treason for there must be a levying of War de facto 4. Touching Adhesion to the Kings Enemies If a man be adherent to the Kings Enemies in his Realm 25. E. 3. c. 2. giving to them aid and comfort in the Realm or elsewhere it is High treason Having given you the words of the Stat. 25. E. 3. I propose these Queries Whether the delivery of a Castle or Fort to an Enemy be an Adhering to the Kings Enemy Qu. 1 To deliver or surrender the Kings Castles Resp or Fort by the Kings Captain thereof to the Kings Enemy within the Realm or without for Reward c. is an Adhering to the Kings Enemy and consequently Treason declared by the Act of 25. E. 3 Whether the Aiding or succouring of a Rebel beyond Sea be Treason Qu. 1 A Resp is out of the Realm at the time of a rebellion within England and one of the Rebels doth fly out of the Ream Co. 3. Inst f. 10. 13. Eliz. Dyer f. 298. whom A knowing his treason doth aid or succour this is no Treason in A by the Stat. of 25. E. 3. because the Traitor is no enemy Vtrum Exteri Qu. 2 qui cum Subditis contra Principem militant Rebelles sint habendi An Enemy coming in open hostility into England Resp and taken shall be either executed by Marshal Law or ransomed Dyer 4. Mar. f. 145. a. Co. Lib. 7. Calevins Case for he cannot be indicted of Treason for that he was never within the Protection or Ligeance of the King and the Indictment of Treason saith Contra Ligeantiam suam debitam But if a Subject joyn with a Foreign Enemy and come into England with him he shall not be taken prisoner here 13. Eliz. Dyer f. 298. and ransomed or proceeded with as an Enemy shall but he shall be taken as a Traitor to the King Whether an English Man born consulting with a Foreign Prince to
2 Petit Treason What it is 3 How many ways it happens 3 4 What may be said Petit Treason in a Servant 4 Execution of a Servants Act hath a retrospection to the Original cause Ib. What may be said Petit Treason in a Wife 5 Parricide whether Petit Treason or not 6 7 Poyson How many ways a Man may be poysoned 35 36 Piracy The Etymology of the word Pirat 70 71 Piracy where antiently Treason where not Ibid. It alters not property unless it be in Market overt Ib. Where there shall be no corruption of blood in case of piracy 71 72 Where a Pardon of all felonies shall not extend to Piracy Ib. Punishment It s definition 113 The true end thereof 114 It s several sorts in our Law in the Jewish and Romane Laws 114 115 116 117 Circumstances observable relating to punishments 120 Principals In Treason all are principals 123 Rules touching principals Ib. Where a Man may be principal though he be not present at the Act. Ib. Where a Man may be principal as well before as after though he be absent at the doing of the fact 124 Where the being present and abetting an offence makes all principals though the offence be personal Ibid. Where the Attainder of an Accessary depends upon the Attainder of the principal 128 Pain Fort Dure In what cases a Man that stands mute shall have Judgement of Pain Fort and Dure and in what not 150 Where the Judgement of Pain Fort and Dure shall be no Plea to a former felony 146 Pardon The Description and Etymology of it 158 159 How many sorts of Pardons there be Ib. Where a Writ of Allowance is necessary to a Pardon and where not Ib. 160 Rape c. 83 84 Riots The Description of a Riots and its derivation 101 Stat. touching Riots Ibid. What number of Persons may commit a Riot a Rout ad unlawful Assembly 103 Robbery It s definition 60 The Difference betwixt a Robber and a Cut-purse 63 What shall be a taking in case of Robbery and what shall be said a taking from his Person 63 64 65 The Thieves reception only may make a Robbery 64 Routs The description of a Rout. 98 The difference between a Levying of War and committing a great Rout c. 100 101 Rumours The punishment before the Conquest and what since of those that are authors of false Rumours 110 They were heretofore very dangerous to our Kingdom Ib. Se Defendendo What Homicide se defendendo is 44 Where a Man ought to give back to prevent Homicide where not 45 46 Sacrilege 68 69 70 Striking in the Kings Court. A diversity betwixt a stroke in or before the Courts of Justice and the Kings Courts where His Royal Person resideth 99 Where to strike in Westminst Hall or the Kings Palace is a great Misprision the punishment of it 97 98 Theft The Etymology of the word Furtum 55 Its Definition Ib. Forbidden by the Law of Nature Ib. The several sorts of Theft Ib. Treason It s derivation and how divided 3 Violation of Royal Majesty a most abominable thing 75 76 To compasse or imagine the death of the King High Treason 76 What are sufficient overt Acts to prove the imagination of the Kings death Ib. 77 In every rebellion by Interpretation of Law there is a machination against the Life of the King 77 A diversity betwixt Treason and Felony 78 Where words or Writing are sufficient overt Acts of Compassing the Kings death Ibid. Where words may make a Heretique but not a Traytor 80 No words are Treason unless made so by some particular Statute Ib. No Treason at this day but what is made by the Stat. of 25 E. 3. Where to set a figure to know how long the King shall live or Reign is no Treason Ib. Where to practise to depose the King to imprison him or to take him into their power shall be Treason 76 77 The compassing or imagining the death of the Queen or Prince is High Treason 81 Where slaying the Chancellor c. shall be High Treason Ib. Carnal knowledge of the Kings Consort the Kings Eldest Sons Wife or of the Kings Eldest Daughter Treason Ib. What shall be said Levying of Wartomake it Treason 82 83 To go in Warlike manner with a multitude to assault a Privy Councellor at his House is Treason Ibid. The breaking of a Prison wherein Traitors be in Durance and causing them to escape is High Treason though the Parties did not know there were any Traitors there Ib. There must be Levying of War de facto to make it Treason Ib. What shall be said an adhering to the Kings Enemies to make a Treas within the Stat. of 25. E. 3. 83 84 Where a conspiracy with a Foreign Prince shall be Treason and where not 84 85 The aiding and succouring a Rebel beyond Seas is no Treason Ibid. Who shall be said Enemies and who Traitors Ibid. To counterfeit the Great-Seal or Mony is Treason Ib. Forging the Kings Coyn without uttering it is High Treason 85 86 Bringing into the Realm counterfeit Coyn High Treason 87 By the Antient Law a Mad-Man might be guilty of High Treason 88 Where a Non compos mentis cannot be guilty of High Treason at this day Ib. What Aliens may commit Treason Ib. Where the killing of an Embassador was adjudged High Treason 89 An Embassador shall loose the Priviledges of an Embassador for committing High Treason Ib. A Foreign Prince by residing here may commit Treason 90 91 The Judgement in Treason for Counterfeiting Mony 86 Verdict The signification and derivation of the word 133 Several kinds of Verdicts Ibid.
if A. give B. Resp such a stroke as he felleth him to the ground B. draweth his knife and holds it up for his own defence A. in hast meaning to fall upon B. 44 E 3 44 3 E 3 Cor 286 Co 3 Inst f. 54 to kill him falleth upon the knife of B. whereby he is wounded to death he is Felo de se For B. did nothing but that which was lawful in his own defence Et vim vi defendere sayes the civil Law omnes leges omnicque jura permittunt D. 9.2 45 4. Whether the goods of Felo de se be forfeited before it be found of Record that he is Felo de se Qu 3 No Goods be forfeited Resp untill it be lawfully found by the Oath of Twelve men that he is Felo de se Plowd fol 360 b. And this doth belong to the Coroner super visum Corporis to enquire thereof and if it be found before the Coroner super visum Corporis that he was Felo de se the Executors or Administrators of the dead shall have no Traverse thereunto Co Lit f 114 ab l 5 f 109. And this is the reason that no man can prescribe to have Felons goods because they are not forfeited untill it be found of Record that he is Felo de se How a Felo de se shall be enquired of Qu 4 where the body cannot be found If a man be Felo de se Resp and is cast into the Sea or otherwise so secretly hidden as the Coroner cannot have the view of the body Hill 37 Eliz in the Kings-Bench by the whole Court in the Case of one Laughton of Cheshire and by consequence cannot enquire thereof In this case it may be inquired thereof by the Justices of Peace of that County for they have power by their Commission to inquire of all Felonies But if it be found before them the Executors or Administrators of the dead may have a Traverse thereunto but not to the Indictment taken before the Coroner super visum corporis as before is said Whether a joynt Tenant of Chattels personals Qu 5 becoming Felo de se doth forfeit the whole There is a diversity between Chattels personals in Action Resp 8 E 4 4 7 E 4 7 a Plowd Com 259 b and in possession for if a debt be owing to two unless it be in case of Joynt-Merchants and the one is Felo de se he doth forfeit the whole but otherwise it is of goods in possession for there he forfeiteth but his part Whether a debt upon a bare Contract be forfeitable Qu 6 If a man that is Felo de se has a debt upon a bare contract and not upon specialty Resp Dyer 262 a this shall not be forfeited unto the King Thus much of Felo de se 2 Of Murder in respect of another Bracton defineth this kind of Murder to be Homicidium quod nullo praesente Lib 3 c 15 nu 1 de Corona Britton c 6 nullo sciente nullo audiente nullo vidente clam perpetratur And of the same mind is Britton whose words are Murdre est occision de home disconu feloniousment fait dount home ne poit scaver per qui ne per quex As also Fleta Est murdrum occulta hominum occisio Lib 1 c 30 a manibus hominum nequiter perpetrata que nullo sciente vel vidente facta est preter solum Interfectorem suos coadjutores fautores yet Fleta saith also that it was not murder except it were proved that the party slain were English and no stranger But as Stamford saith the Law in this point hath received an alteration by the Stat. of 14. E. 3. 14 E 3 c 4 And therefore this murder is now otherwise to be defined or described It is when a Reasonable Creature be it man woman child Subject born or Alien persons outlawed or otherwise attainted of Treason Felony or premunire Christian Jew Heathen Turk or other Infidel being under the Kings peace is slain or killed by a man of sound memory and of the age of discretion with malice forethought either expressed by the party or implied by Law Touching the former viz. Malice expressed take these Queries with their Solutions Whether this same malice Qu 1 though it be intended against one it shall be extended towards another This Malice is so odious in Law as though it be intended against one it shall be extended towards another Sol And therefore Bracton's words are siquis unum percusserit cum alium percutere vellet Co Lib 9 Gores Case 81 in felonia tenetur As if A. put poyson into a pot to the intent to poyson B. and set the same in a place where he supposeth B. will come and drink thereof and by accident one C. unto whom A. hath no malice cometh and of his own will taketh the pot and drinketh thereof of which poyson he dyeth This is murder in A. for the Law doth couple the event with the intention and the end with the cause But herein is a diversity between the principal and the Accessory For if A. command B. to kill I. S. and B. killeth I. D. mistaking him for I. S. this is murder in B. because he did the Act which sprang out of the Root of malice Plowd Com Saunders Case but A. is not Accessory because his own commandment was not pursued But on the other side if A. command B. to kill I. S. by poyson and he doth it by violence as by weapon sharpe or blunt Gun Cross-bow Crushing c. in this case notwithstanding the fact be not executed according to the mean prescribed yet A. is Accessory nevertheless for the commandment was to kill which ensued though the mean was not followed Whether killing a man by poyson be more detestable than by any other means Qu. 2 To kill a man by poyson sayes Coke Sol is the most detestable of all because it is most horrible and fearful to the nature of man and of all others can be least prevented either by Manhood or providence This offence was so odious 22 H 8 c 9 that by Act of Parliament it was made High Treason and it inflicted a more grievous and lingring death than the common Law prescribed viz. That the Offendor shall be boyled to death in hot water upon which Statute Margaret Davy a young woman was attainted of High Treason for povsoning her Mistress and some others Anno 33 H 8 was boyled to death in Smithfield the Seventeenth of March in the same year But this Act was afterwards repealed by 1. E. 6. c. 12. and 1. Mar. c. 1. Having given you the words of Sir Edward Coke touching poysoning I shall mention something in the civil Law concerning it Plus est hominem extinguere veneno Cod 9 1 8 quam occidere gladio For Clam interficere sayes Gothofredus on the Text gravius est quam palam
invade his Country may be charged with High treason A Consultation was had concerning John Story Doctor of Law Cambdens Eliz. f. 144 145. An. 1572. the Duke of Alva's Searcher whether he being an English Man born who in Brabant had consulted with a Foreign Princ eabout invading his Countrey and had shewed the means of Invasion might have been charged with High treason The skilfullest Lawyer affirmed that he might Whereupon he was arraigned and being to be charged with Treason for that amongst other things he had shewed to the Duke of Alva's Secretary the means to invade Eugland raise Ireland into rebellion and excite the Scots to bteak into England all at once He refused to submit himself to Tryal and to the Laws of England and affirmed that the Judges had no power over him for that he was not a Subject sworn to the Queen of England but to the King of Spain But he was condemned according to the ordinary forme of Nihil dicit Co. Lit. f. 129. a. 13. Eliz. Dyer 300. Doctor Story 's Case Co. lib. 7. Calvin's Case Cod. 10.38.4 and suffered the death of a Traitor for that no Man can shake off his Countrey wherein he is born nor abjure his native saile or his Prince at his pleasure Nemo Patriam in qua natus est exuere nec Ligeantiae debitum ejurare possit With this Law doth concurre the Civil Law Origine propria neminem posse voluntate sua eximere manifestum est 5. Touching Fausonnery Crimen falfi If a Man counterfeit the Kings Great or Privy Seale or his Money it is High treason All antient Authors agree that this was High treason by the Common Law as Braction Britton Fleta and the Mirrour 25. E. 3. c. 2. The Forging of the Kings Coyn is High treason without utterance of it for by the Act of 25. E. 3. the Counterfeiting is made High treason One Morgan and two others were indicted for Counterfeiting twenty Shilling Pieces of the Kings Coyn Cro. 3 part Morgans Case 383. and Morgan for uttering those Pieces to the Kings Subjects knowing them to be counterfeit and being there upon arraigned he pleaded Not guilty And evidence being pregnant against Morgan he was found guilty and the others were acquitted And Judgment given that he should be drawn and hang'd but not to be quartered according to the opinion of Stamford f. 182. Note that by the Stat. of 5. Eliz. to clip wash 5. El. c. 11. round or file for wicked lucre and gain is declared High treason So by the Statute of 18. Eliz. 't is enacted that diminishing 18. E. c. 1. scaling or lighting of the Kings Coyn within this Realm is High treason Touching Money the Civil Law speaks thus Qui falsam monetam percusserint si id totum formare noluerunt suffragio justae paenitentiae absolvuntur D. 48.10.19 De falsa Meneta Falsa monetadeprehenditur ex materia pondere formaadulterina Gothofredus Quicunque Nummos aureos partim raserit partim tinxerit vel finxerit si quidem liberi sunt ad bestias dari si servi summe supplicio affici debent D. 48.10.8 6 and last Bringing into the Realm Counterfeit Coyn. If a Man bring false Money into this Realm counterfeit to the Money of England knowing the Money to be false to Merchandise or make payment in deceit of our Soveraign Lord the King and of his People it is High treason But note that the uttering of false Money in England though the Person know it to be false and counterfeit to the Likeness of the Coyn of England is no Treason within the Statute of 25. E. 3. unless he brought it from a Foreign Nation for the words of the Statute are Si Home apport faux Money en cest Realm Having related the several parts or kinds of Treason within the Statute of 25. E. 3. I shall add these few Queries touching High treason and so conclude Whether a mad Man may be guilty of High treason Qu. 1 The antient Law was Resp that if a mad Man had killed or offered to kill the King it was holden for Treason Co. lib. 4. f. 124 b. Beverleys Case and so it appears by King Alfreds Law before the Conquest and in Beverleys Case for the King is Caput Salus Reipublicae a Capite bona valetudo transit in omnes and for this cause Kings Persons are so Sacred that none may offer them violence without being guilty of High treason Et pereat unus ne pereant omnes But now by the Statute of 25. E. 3. and by force of the words Fait compasser ou imaginer la mort he that is Non compos mentis Co. 3. Inst f. 6. Co. Lit. 247. b. and totally deprived of all compassings and imaginations cannot commit High treason by compassing or imagining the death of the King for furiosus solo fâ—rore punitur and furor in the Civil Law is continuata mentis alienatio qua quis omni intellectu caret If a Man commit Treason and confesseth the same or be thereof otherwise convict if afterwards he become de non sanae memoriae he shall not be called to answer or if after Judgment he become de non sanae memoriae Co. 3. Inst f. 4. Lib. 4. Beverleyes Case he shall not be executed for it cannot be example to others The Civil Law Culpam non admittit qui suae meâ—ttis non est Si per furorem aliquis parentem occiderit D. 48.9.9.2 impunitus erit Divi Fratres rescripserunt super eo qui per furorem matrem necaverat Nam sufficere furore ipso eum puniri Whether an Alien residing here Qu. 2 can commit High treason All Aliens that are within the Realm of England Resp Co. Litt. 192. a. Dyer 144. Co. lib. 7. Calvins Case Co. 3. Inst f 4 5. and whose Soveraign are in amity with the King of England are within the protection of the King and do owe a Local or Topical obedience to the King are within the Act of 25. E. 3. and if they commit Treason against the King they shall be punished as Traitours and the Indictment shall say contra Legeantiae debitum Whether the killing of a Foreign Ambassadour residing here be High treason Qu. 3 Albeit the malicious killing of an Ambassabour be justi belli causa Resp and contra jus Gentium yet the killing of him is no Treason within the Stat. of 25. E. 3. until itl be so declared by Parliament as it was in the Case of Kerby and Algere Co. 3. Inst f. 8. who were attainted for the killing of John Imperial Ambassadour from the State of Genoa but that Declaration was taken away by the Statnte of 1. Mar. Whether an Ambassadour Qu. 4 which raiseth Rebellion ahainst the Prince to whom he is sent may enjoy the priviledge of an Ambassadour and be not subject to punishment as an Enemy Such an
AN ABRIDGMENT OF THE LAWES OF ENGLAND Touching Treasons Rebellious Murthers Conspiracies Burning of Houses Poysonings and other Capital Offences With such Readings thereon as shew the several wayes whereby Offenders in such cases may become Guilty By John Bridall Esq LONDON Printed for John Bellinger in Cliffords-Inne-Lane and Tho. Dring at the Harrow at Chacery-Lane-End in Fleet-street 1679. The general Titles contained in the TABLE ACcessories Affrayes Appeals Approver Assemblies Arraignment Attainder Battery Bribery Burning of Houses Causes Criminal Challenges of Jurors Chance-Medley Clergy Conspiracies Vide Treason Conviction Councel Duels Errors Execution Extortion Felo de se Felony Gifts Homicide Indictment Judgment Criminal Jurors King Larceny Ligeance Lex Talionis Libels Lawes Life Mispristons Murther Malice Mayhem Offences Petit Treason Poyson Piracy Punishment Principals Pain Fort Dure Pardon Rape Riots Robbery Roues Rumours Rebellion Vide Treason Se Defendendo Striking in the Kings Court. Theft Treason Verdict Advertisement THE Campagne of the French King in the Year 1677. In which is described Exactly the Three Sieges and taking in of Valenciennes by Assault and of the Town and Citadel of Cambray and of St. Omers With an Account of the Battel of Cassel Printed for T. Dring in Fleet-street JVs CRIMINIS OR THE Law of ENGLAND TOUCHING Matters Criminal JVS CRIMINIS or the Obligation of Crime is whereby a Subject for a Delict or Offence against the Imperial Crown of England is obnoxious and liable to punishment And a delict or offence is whereby the King and Common-wealth which make but one are injured Of Offences commonly termed Pleas of the Crown some are perpetrated mediatly against the Crown though not principally yet consequentially And some immediatly are said to be committed against the King Himself who is Head of the Common-wealth and in whom all general Injuries reside and to whom the Reformation of all Publique wrongs doth inseperably appertain The former kind may be divided into 3 Classes viz. 1. Into those that have Relation to life it self such as Homicide 2 Into those that respect the Body and Members as Battery Mayhem and Rape 3. Into those that belong to Dominion or property such as Theft and burning of Houses The latter kind do comprehend High-Treason Misprision of Treason Robbing the King's Treasure Bribery Extortion striking in any of the King's Courts where He resides Personally or by Representation and all manner of Breaches of the Publique Peace such as Conjurations Routs Ryots Affrayes Duels Lybels and false Rumours Of these several kinds in their Order 1. Of those Crimes that are committed mediatly contra Coronam dignitatem Regis and do relate to Life it self as Homicides In Homicide are worthy of Observation the Etymologie of it and its general Division Est homicidium Lib. 3. c. 4. nu 3. de corona sayes Bracton hominis Occisio ab homine facta si enim a Bove Cane vel alia re non dicetur proprie Homicidium Est dictum Homicidium ab komine Caedo quasi hominis Caedim And with Bracton doth Concurre in this matter another antient Author viz. Mr. Horne whose very words are these Homicide est Occision de Home per Home fait Mirror c. 1. Sect. 9. car si soit per beste ou mischeance nest Homicide Thus much of the Definition and Origination of the word Homicide As for the right division of Homicide take this as followeth Of Homicides some be done 1. Proposito voluntarily and of malice fore-thought as petty-Treason and Murther 2. Impetu voluntarily and not of malice fore-thought Of these some be Felony as Man-slaughter and some be no Felony Of which some be in respect of giving back inevitably in defence of himself upon an assault of Revenge Co. 3. Jnsti f. 54. and some without any giving back as upon the Assault of a Thief or Robber upon a man in house or abroad Some upon the Assault of one that is under Custody as the Sherif or Gaoler assaulted by his prisoner some in respect that he is an Officer or Minister of Justice without any assault in Execution of his Office or Lawful warrant 3. Casu such as be no Felony neither forethought nor voluntary as Man-slaughters by misadventure Having shewed the Reader Sr. Edward Cook 's division of Homicide I begin with the first Branch viz. Homicide voluntary and of malice fore-thought and this conteines petit Treason and Murder Treason being derived from Trabir which is treacherously to betray Trahue betrayed 1 Petit Treason and Trahison per Contractionem Treason is the betraying it self it is divided into two parts into High Treason and petit Treason It is called High or Grand Treason in respect of the Royal Majesty against whom it is perpetrated Co. 3. Inst f. 4. 20. and Commparatively it is stiled petty Treason in respect it is committed against Subjects and inferior persons so that this petit Treason is when wilful Murder in the Estate Oeconomical is committed upon any Subject by one that is in subjection oweth Faith Duty and Obedience to the party Murdered as in these three Cases following which are only mentioned by the Statute of 25. E. 3. C. 2. de prodicionibus and likewise by Britton Cap. 8. 22. 1. When a servant slayeth his Master This was petit Treason by the Common Law for it appeareth by the Book 12. 12 Ass pl. 30. Ass that a woman servant killed her Mrs wherefore she had Judgment given to be burned which is the Judgment at this day of a woman for petit Treason And herewith agreeth 21 E. 3.17 Upon the Act aforesaid if the servant kill the wife of his Master 19 H. 6.47 Flowdens Com. 86. b. Crompt 20. it is petit Treason for he is servant both to the Husband and wife A servant upon malice pretended shooteth at a stranger and misseth him and killeth his Master being by this is petit Treason in the servant though he intended no hurt to his said Master yet because he intended Murther thereby A Servant commands one to beat his Master Crompt 20. and he killeth him this is petit Treason in the servant if he be present If a servant has an intent to kill his Master Co. lib. 1. Shellies case 99b 10. H. 6.47 Plowdens Com. 260. Co. 3. Inst f. 20. and before the Execution of his purpose departeth out of his Masters service and being out of his service put his Intent in Execution and kills him who was his Master this is petit Treason for the Execution of the Act hath a Retrospection to the Original Cause which was malice conceived when he was a servant A maid-servant conspires to kill her Mistress Moores Reports nu 227. f 91. it is petit Treason in her and Murder in the Actor 2. When a Wife slayeth her Husband The wife maliciously killeth her Husband this is petit Treason in her But if the Husband maliciously killeth his Wife this is
only Murther the reason of this diversity is for that the one is in subjection and oweth Obedience and not the other The wife poysoneth an Apple to the intent to poyson a stranger therewith Cromp. 20. and laid it to that purpose in a secret place and the Husband by chance eateth of it and dyeth thereof within a Year and a day this is petit Treason in the Wife for that she intended Murther thereby so if the Wife poysoneth an Apple or other thing and delivereth it to B. knowing of the poyson to give to C. and B. giveth it to the Husband without the assent of the Wife who eateth thereof in the Wives absence and he dyeth thereof this is petit Treason in the Wife But if the Wife poysoneth a thing Plowd Com. f 474. to the intent to poyson her Husband therewith the Husband eateth of it and becometh very sick but recovereth after a stranger eateth thereof and dyeth thereof this is onely murther in the Wife If the Wife and Servant conspire the Husbands death he is killed by the Servant Co 3 Just f 20. in the absence of the Wife this is petit Treason in them both and the Wife shall be burnt But if it had been a stranger it had been murder in him onely and petit Treason in the Wife Baron and Feme out of affection were resolved to go out of the World together The Wife buyes poyson both take it the Husband dyed It is a quaere in the Book whether this were murther in the Wife A Woman compasseth with her Avowterer The Womans Lawyer lib. 3. sect 44. the death of her Husband they assailed him Riding on the Highway beating wounding leaving him for dead and then they fled The Husband got up levied Hue and cry came before the Justices they sent after the Offenders which were gotten arraigned and the matter found by the Verdict the Adulterer was hanged the Woman burned to death the Husband living This Judgement was given when voluntas reputabatur pro facto Sic Metellus Celer Sergium damnavit non factum sed animus in questionem deductus est Plusque voluisse peccare nocuit quam non peccasse profuit But at this day in case of Felony Non debet obesse Conatus ubi injuria nullum habet effectum 3. When a Secular or Religious man stayeth his Prelate Ordinary or Superiour to whom he oweth Faith and Obedience Note that unto the Bishop of every Diocess the Clerks within their Diocess do owe Faith and Obedience which is called Canonical Obedience Note likewise that whatsoever Act will prove murder between strangers the same will make petit Treason from the Servant to his Master from the Wife to the Husband from the Clerk to his Prelate or Ordinary Mutatis Mutandis But whether from a Child to the Father or Mother c. may be a Quaere for some hold that it is petit Treason and others that it is not If the Child maliciously killeth the Father or Mother this sayes one is petit Treason although the Father or Mother at the same time gave neither meat drink or Apparel nor wages to such Child in respect of the duty of nature violated vide 21. E. 3.17 Book Treason 6. A Bastard killeth his Mother Crompt ' 21. this seemeth petit Treason for the Mother is certainly known The Son or Daughter in Law killeth the Father or Mother in Law with whom they dwell and do service and have meat Dalisons Rep. 1. Mar. 1. and drink it is petit Treason although such Child take no wages but the Indictment shall be by the name of Servant But my L. Coke says thus If the Child commit Parricide in killing his Father and Mother of which Solon interrogatus cur nullus parricidio supplicium indixisset Se id neminem facturum putasse respondit The Law-makers never imagined any child would do this case is out of the Stat. of 25. E. 3 c. 2. unless the child served the Father or Mother for wages or meat drink or apparel for that it is none of those three kinds specified in the Law aforesaid And yet sayes he the offence is far more hainous and impious in a child than in a servant for peccata contra naturam sunt gravissima but the Judges are restrained by the said Act to interpret it a simili or a Minore 〈◊〉 Majus The hainousness of this Parricide appears by that punishment which is ordained in the civil Law for those that are guilty of the Crime Paena parricidij more Majorum haec instituta est ut parricida virgis sanguineis verberatus deinde culleo insuatur cum Cane gallo gallinaceo vipera simia deinde in more profundum Culleus jactetur D. 48.9 9. Thus much of petit Treason Murder cometh of the Saxon word Mordrue ◠Murder Co Litt 287 b Stamfords Plees of Crown Lib 1 or Mordren and Mordridus is the Murderer even untill this day amongst them in Saxony from whence we have most of our words or it may be derived of Mort and Dire as Mors Dira a Cruel or Horrible death This Murther in our Law is Two-fold either of himself or of another 1. Of Murdering a mans self called Felo de se Felo de se sayes Coke is a man or woman which being Compos mentis of sound memory and of the Age of Discretion killeth himself which being lawfully found by the Oath of Twelve men all the Goods and Chattels of the party so offending are forfeited And the Reason why Felo de se doth forfeit all his Goods and Chattels is because it is an offence against the King who by that perpetration is deprived of a Subject And indeed no man by the Law of nature hath such power over his own life as to take it away or to oblige it by any Contract or Bargain vide Grot. Lib. 2. c. 21. nu 11. Lib. 3. c. 11. nu 18. Having shewed the Description of Felo de se and the Reason of forfeiting his Chattels I propose these Queries with their Resolutions Whether a person that is non compos mentis Quaere 1 giving himself a mortal wound and after recovering his memory before death ensues be Felo de se If one during the time that he is non compos mentis giveth himself a mortal wound Resp whereof he when he hath recovered his memory dyeth he is not Felo de se And the Reason is because the stroke which was the cause of his death was given when he was not Compos mentis Et actus non facit Reum nisi meus sit rea And this is agreeable to the civil Law Maleficia voluntas propositum distinguit D 47 253 voluntas propositum maleficium delinquentis distinguit Delictam cessat ubi delinquendi animus non est Whether a man can be said to be Felo de se upon an involuntary Act Qu 2 A man may be so As
Ambassadour hath by the Law of Nations and by the Civil Law of the Romans Resp forfeited all the Priviledges of an Ambassadour and is subject to punishment If a Foreign Ambassadour sayes Coke committeth here in our Realm any crime Hill 14. Eliz. The Bishop of Rosles Case Co. 4. Inst f. 153. Bulstrodes Reports 3d part The King v. March which is contra jus Gentium as Treason Felony Adultery or any other crime which is against the Law of Nations he looseth the Priviledg and Dignity of an Ambassadour as unworthy of so high a Placc and may be punished here as any other private Alien and not to be remanded to his Soveraign but of courtesy But if any thing be malum prohibitum by any Act of Parliament Private Law or Custom of the Realm which is not malum in se jure Gentium nor eontra jus Gentium an Embassadour residing here shall not be bound by any of them but otherwise it is of the Subjects of either Kingdom c. And the reason why private Aliens are bound by our Acts of Parliament Lib. 2. c. 2. nu 5. De jure belli ac Pacis Private Laws and Customs is given by the learned Grotius viz. Quia ad gubernationem Populi moraliter necessarium est ut qui ei vel ad tempus se admiscent quod fit intrando territorium ij conformes reddant ejus Populi institutis Whether a Foreign Prince Qu. 5 by his dwelling and residing here can commit Treason When a Foreign Prince comes with leave into England Resp he subjects himself under the Protection of the King of England and as by well doing he enjoyes the benefit of the Laws so by ill doing he is subject to the Equity thereof according to that saying of the Lawers He deserveth not the benefit of the Law which offendeth against the Law Otherwise better were the condition of a Foreign Prince offending in another Princes Kingdom than his that reigneth well He is thought also to be a Subject though not originary yet temporary because two absolute Princes in respect of Royal Authority cannot be in one Kingdom at once and therefore it is a received opinion of the learned in the Laws A King without his own Dominions except it be in an Expedition of War is but a private Man and consequently can neither confer nor exercise Royalties Moreover it is said that such a Prince by his offence looseth merum Imperium his meer and absolute Soveraignty and that such are subject by their dwelling only and place of abode might commit Treason and that a Prince hath power or Jurisdict over another Prince that is his equal as often as any hath subjected himself under the Judgment of his Equal either by express words or Covert Contract or by offending within the Jurisdiction of his Equal Vide Cambdens Eliz. in 29. year of her Reign touching the Queen of Scots 2. Misprision of Treason Touching Misprision 4 things are to be principally observed The Etymology of the word its Description its Division and the Punishment therefore 1. The Etymology or Origination of the word Misprision cometh of the French word Mespris which properly signifieth neglect or contempt for mes in Composition in the French signifieth mal Co. 3. Inst f. 36. as mis doth in the English Tongue as mischance for an ill chance and so Misprise is ill apprehended or known 2. It s Description In legal understanding Misprision of treason is either when one knoweth that another hath committed treason and will not discover him to the King or to the Councel or to any Magistrate but doth conceal the same it is when one hath committed some hainous offence under the degree of treason 3. It s Division Misprision of treason is twofold 1. Passive called Crimen omissionis as in concealment or not discovery of treason And therefore by the Statute of 5. E. 6. concealment or keeping secret of any High treason is declared only Misprision of Treason As for example 13. El. c. 2. It is Misprision of High treason in concealing of a Bull from the Pope of Rome So the receiving of one that hath counterfeited the Kings Coyn Dyer f. 296 Coyners Case and comforting of him knowing him to have counterfeited the King Coyn is but a Misprision But by the Common Law concealment of High treason was Treason as appeareth in the Case of the Lord Scrope anno 3. H. 5 and by Bracton lib. 3. f. 118. b 119. a. And with our Common Law the words of Isocrates to Nicooles are agreable viz. Eadem poena digni sunt supprimentes hujusmodi facinus qua facinorosi 2. Active called Crimen commissionis as in committing some heinous offence under the degree of Treason 37. H. 8. Br. Tit. Treason as when one fixes an old Seale of a Patent to a new Patent of Non-Residence this is holden to be a Misprision of Treason only for it is an abuse of the great Seale and not counterfeiting of it So if a man know Money to be counterfeit and bring the same out of Ireland hither into England Co. 3. Inst f. 140. and utter it in payment this is but a Misprision and no Treason So the compassings or imaginations against the King by word without an overt Act is a High Misprision 4. The punishment of this offence In all Cases of Misprision of Treason the party offendour shall forfeit his Goods and Dutie for ever and the profits of his Lands for terme of his life and to be imprisoned during life From which punishment if any will save himself that knoweth of any High treason he ought with as much speed as conveniently he may to reveal the same to the King or some of his Privy Councel or any other Magisirate Note that in every Treason or felony is included Misprision and where any hath committed Treason or felony the King may cause the same to be indicted and arraigned but of Misprision only if he will 3. Robbing the Kings Treasure Crimen peculatus The Robbing the King of his Treasure Co. 3. Inst f. 112. Co. litt 90. b. 131. b. or Money is accounted Damnum inaestimabile for the Kings Treasure is the sinew of War and the honour and safety of the King in time of Peace The Civil Law doth accord with our Law in this point Pecuniae nervus Reipublicae seu belli Cur ita Imperium sine vectigalibus nullo modo esse potest Cicero Militares expensae Hostium Incursiones multa regent diligentia non possunt citra pecuniam haec agi N. 8.2.10.2 Fourscore and one persons whereof the Abbot of Westminster and 48 of his Monks were part brake into the Receipt Co. 4. Inst f. 112. and feloniously robbed the King of a hundred thousand pounds All these fourscore and one were indicted of this felony and committed to the Tower of London c. and this was the occasion of the new building of both
But in case of an Indictment of death at the Suit of the King auterfoitz attaint de mesme le mort in Appeal is a good Plea Auterfoitz attaint de murder is a good Plea to an Indictment Co. 3. Inst f. 213. c. of Petit treason of the same death for in effect it hath the same Judgment and the self same forfeiture So likewise a Man may be attainted of Man-slaughter it is a good barre to an Indictment of murder of the same death and e converso Thus much of matters Judicial in criminal offences I go on now according to our first proposed Method to the Acts Judicial 8. Of Judicial Acts relating to publik Crimes Touching these Judicial Acts there are worthy of consideration these particulars The manner how Causes criminal are brought to Tryal 2. The Judgment or Sentence upon that Tryal or Arraignment 3. The Execution of that Sentence 4. The means whereby the Judgment or Execution may be escaped or delayed No Man is said to be arraigned 1. The manner of Arraigning a delinlinquent Co. Litt. 263. a. but meerly at the Suit of the King upon an Indictment found against him or other Record wherewith he is charged And there the Arraignment of the Prisoner is to take order that he appear and for the certainty of the Person to hold up his hand and to plead a sufficient plea to the Indictment or other Record whereupon they which follow for the Ring may orderly proceed If the party accused of Treason or Felony c. do at his Arraignment before the Judge deny the offence or as we say plead Not-guilty then shall he be tryed by a Jury of 12 Men dwelling nigh to the Vill where th offence was comitted such Men as to the Party accused be nothing allyed to certify the Judge upon the truth of the fact which at their appearance the Party arraigned may challenge peremptorily upon his own dislike without shewing any cause in favorem vitae the number of twenty in murder and other Felony And in case of High treason Petit treason Co. Litt. 156. b Co 3. Inst f. 227 228. and Misprision of treason he may challenge to the number of 35 And if he challenge peremptorily above 35 in case of Treason or Petit treason he forfeiteth his goods and Judgment of pain fort and dure shall be given against him as one that refuseth the Tryal of Law by challenging 3 full Juries Otherwise in case of Felony for no Law giveth forfeiture for challenging above twenty but the Court is to over-rule the Challenge But note Co. Litt. 156. b. that in case of Treason or Felony the Party arraigned may challenge for just cause as many as he can 2. But if the Party upon his Arraignment in case of Felony refuse to answer according to Law or say nothing he shall not be Judged to be hanged Co. Litt. 391. a. Co. 3. Inst 14 217. but for his contempt he shall undergo pain fort and dure which makes no Attainder for the felony nor forfeiture of his Lands nor corruption of Blood Otherwise in case of High treason for if the Party refuse to answer according to Law or say nothing he shall have such Judgment by Attainder as if he had been convicted by Verdict or Confession 3. Co. Litt. 391. a. If the Party arraigned be found Guilty by Verdict or Confession then he is said to be convicted which is before he hath Judgement or Sentence and thereupon he doth forfeit his goods and Chattels But note that the begging of the goods or Estate of the Delinquent indicted of any Treason Felony or other offence before he be convicted and attainted is utterly unlawfull Co. 2. Inst 43. Co. 3. Inst 1â—7 229. Co 3. Inst 229. because before Conviction and Attainder nothing is forfeited to the King nor granted by him And besides it either makes the Prosecution more violent and undue then quiet and equal proceeding of Law and Justice would permit or else by under hand Commission and agreement hinder the due course of Justice for examplary punishment of the offender Note further that before Indictment the goods or other things 2. Of the Judgment or Sentence pronounced of any criminal cannot be searched Inventoried or in any sort seised nor after Indictment seised and removed or taken away before Conviction or Attainder Thus much of the manner touching the Arraignment of a Delinquent Assoon as Judgment or Sentence is pronounced by the Judge the Party arraigned is said to be attainted mort en Lev But though the Delinquent by the Attainder be a dead Person in Law Co. 2. Inst f. 215 213. yet maugre the Attainder his Body may at the Suit of a Subject be taken in execution upon a Judgment or Stat. c. Cro. 1. part Ogâ—â—ll v. Paston Cro. 1. part Trussells Case And he may be executed for Treason or felony notwithstanding such Execution had against him As to Attainder take these Queries together with Solutions Qu. 1. Whether there be a diversity betwixt an Attainder and an Entry into Religion Resp There is a great difference between an Attainder of treason or felony and an Entry into Religion for he that is attainted of treason or felony Co. 3. Inst f. 215. hath capacity and may purchase Lands to him and his Heirs but so cannot he that is entered into Religion Qu. 2. When a felony is perpetrated whether there be a Discrimination in Law betwixt purchasing of Lands before and after Attainder Resp If a Man commit felony and after purchase Land and then is attainted he has capacity to purchase but not to hold it for in that case the Lord of the fee shall have the Escheat Co. Litt. f. 2. b. But if a Man attainted of felony purchase Lands in this case the King shall have it by his prerogative and not the Lord of the fee for a Man attainted hath no capacity to purchase but only for the benefit of the King Qu. 3. Whether a Person attainted after a Pardon can have an Action of Battery c. committed before the Pardon Resp If a Person be beaten Co. 3. Inst 215. or maimed or a Woman attainted be ravished after Pardon they shall have an Action of Battery Appeal of Maime or Rape It is to be known Co. Litt. 390. b. Perkins ss 27. that there be two manner of Attainders the one after appearance and that in 3 manners by Confession by Battel or by Verdict the other upon Processe to be outlawed which is an Attainder in Law But upon every one of these Judgment ought to be given otherwise it shall not be said an Attainder Now as upon conviction a Delinquent forfeiteth his good and Chattels so upon Attainder that is by Judgment given his Lands and Tenements are forfeited But touching the forfeiture of Lands there is a diversity betwixt an Attainder of felony by outlawry upon an
Pleas of the Crown 135 136 How they are brought to a Judicial hearing 136 Challenges to fight 107 Challenges of Jurors What number the Party may challenge what not 156 Chance-medley What it is 47 One Trained Souldier hurting another by mischance 47 Where the killing of another by misfortune shall be murder and where not 48 Where 't is Homicide in a Physician and where Covert Felony 49 Clergy In what particulars the benefit of Clergy is taken away at this day 127 A Rule touching this Clergy 128 Conviction When a Man is said to be convicted 151 Councel What advantages a Prisoner may take in case of Treason or Felony to have Council assign'd him 131 Council allow'd in Appeals but not in Indictments the reason of the diversity 131 132 A Prisoner may have Council in matters of fact 130 131 Duels They are against the Law of God Nature and the Laws of the Realm 102 The punishment of Duellists though no blood be shed 103 What Duells lawful 102 103. Error 157 Execution Where it ought to be done by a right Officer 156 Where it ought to be according to the Judgment Id. The means by which Execution may be avoided 157 Extortion What it is 96 More odious then Robbery 97 Felo de se The Description of a Felo de se 8 The reason why he forfeits Goods Ib. Where a Man shall be said Felo de se and where not 9 How Felo de se shall be enquired of where the Body cannot be found 10 His Goods not forfeited till found of Record 9 10 Where a Joyntenant becoming Felo de se shall forfeit but part where the whole 10 A Debt owing to Felo de se upon a bare Contract is not forfeitable to the King 11 Felony A Pardon of all Felonies is no Pardon of Treason at this day 135 The extent of the word Felony Ib. To break a Prison where by the Felons may escape is Felony 83 The begging of the Estate of a Delinquent before conviction and Attainder is illegal 151 Where none may seise the Goods of any Person before conviction Ib. No Goods of an Offender ought to be fearched or Inventoried before Indictment nor removed before conviction Ib. Falsifying Attainders 157 Gifts 95 96 Homicide The Etymology of the word Homicide 2 It s right division Ib. How many sorts of Homicides there be 3 What Homicides are Felony and what not Ib. The Description of Homicide 2 Homicide voluntary what it contains 3 Jus criminis what 1 Indictment The signification and derivation of the word Indictment 141 142 The difference betwixt an Appeal Indictment 142 In Indictments words are so appropriated to offences that they cannot be expressed by any other words Ibid. Rules touching Indictments 142 143 Judge No man to be Judge in his owne Cause 50 Judges in criminal Causes ought to deliver their opinion before hand 134 The duty of Judges 133 134 Who Judges of Fact and who of Law 132 133 Judgement criminal The Persons consider'd in it Assistants in it who 130 Their duty Ib. In Judgement of High-Treason or Felony what is implyed 155 156 Jurors The properties of Jurous 132 133 King His Treasure the sinews of War 96 Head and health of the Common-Wealth 1 75 87 Making War solely appertains to him 82 Larceny Larceny what 55 It s twofold 55 56 What shall be said a felonious taking what not 56 57 Whether an Infant unper the age of discretion can commit Larceny 57 58 Where there must be a felonious taking as well as a felonious carrying to make a Larceny 56 Where and where not a Feme Covert may be guilty of a Larceny 58 59 Where the Wife cannot steal the Goods of her Husband Ib. It may be committed of a thing that is delivered by Replevin 59 What shall be said a felonious carrying away to make it a Larceny 59 60 Larceny cannot be committed of Personal Goods that savor of the Realty Ibid. Where 't is Larceny to steal the sheets from the Dead 61 Where a Man may steal his own Goods Ib. Ligeance It cannot be shaken off 85 Lex Talionis 53 Libels Libel what it signifies 107 Libelling be it true or false is punishable by our Law Ib. How a Man must demean himself that finds a Libel 106 A French Libel punishable 107 A Libel punishable by Indictment Ib. Laws The Greek Law touching a Childs stealing of Goods 58 What the Civil is touching these following particulars § Self-Defence 9 A Mans Intention 9 44 Poysoning 13 Malice 14 A Woman pregnant 15 Physicians and Surgeons 49 A Mans Limbs 52 Life 8 Theft 55 An Infants stealing 58 Death 61 A Man stealing his own Goods 61 62 Robbery 64 Sacrilege 66 67 Pyrats 71 Burning of Houses 74 75 Treason 78 Calculation 80 81 Authority of making War 82 Ligeance 85 Fausonnery 86 Mad-Men 88 The Custom of places 90 Treasure 93 Robbing of Treasure 94 Gifts and Bribery 95 96 Rape 54 Riots c. 103 Force 102 Libels 107 Punishments 114 117 Personal offences 118 119 Doubtfull Interpretations 119 Circumstances 120 Principal and Accessory 128 Alienations 154 Life No Man has power over his own Life nor members 8 52 Misprisions The Derivation of the word and its Derivation 91 It is twofold 91 92 The punishment of Misprision of Treason 93 Every Treason and felony includes in it a Misprision 193 Where words without overt Act are as punishable as Misprision of Treason 92 Murder It s Derivation 8 How divided Ib. Murder how heretofore how at this day defined 11 Where a mistake in the principal shall make the Accessary guilty of murder and where not 12 What Persons are capable of being murdered 11 Poysoning the worst of Murders 13 Whether an Infant within the age of 9 years can be guilty of Murder 13 14 Where there ought to be a continued malice to make it murder and where not 14 15 Where 't is no Murder to kill an Infant en ventre de sa mere 15 Murder in a Mother to conceal the death of her Bastard-Child 16 Stabbing another where wilful murder Ib. What murders tryable before the Constable and Marshal 32 33 What Officers it is murder to kill 36 Malice Where to kill another without provocation is malice implied 33 34 How many kinds there be of malice impli'd Ib. Mayhem The signification and derivation of the word Mayhem 51 In what cases a Mayhem may be done and what not 51 Judges may use the help of Surgeons in point of a Mayhem 51 52 Mayhem how termed by the Canonists 51 Where a Man was indicted for mayming himself Ib. The antient punishment for him that maymed another 52 Maliciously to cut the nose is felony at this day 51 The degree of this offence called mayhem 53 Offences An offence or delict what 1 How many ways offences are committed Ib. What offences despoil Men of their property 54 Offences that injure Mans Body or members 50 Offences relating to life