Charter of pardon which is allowed he may haue an action of Trespas against the offendor for the assault batterie made before the Outlawrie for the said outlawrie shall not extinguish his action nor cause that offence which before was punishable to be vnpunished And if the partie beaten should not haue his Action the iniurie done vnto him should be vnpunished for the King shall haue no remedy to recouer damages for this batterie done to the person of him that was outlawed 29. Ass p. 47 63. as he might haue had if any debt had béen owing or any goods had béen taken from the outlaw before his outlawrie And the Law doth expect that for the peace broken and the wrong done to the partie grieued the same partie shall vpon his action of Trespas brought be recompenced by the recouerie of his dammages and the king satisfied for his peace broken by a fine 11. H. 4. 65. 9. H. 6. 60. 27. Ass p. 57 33 In an action of Trespas of assault and batterie A man first indicted of batterie and after sued for the same trespas the defendant pleaded not guiltie the plaintife replied that the defendant was before that time indicted before the Iustices of Peace of the same Countie of the said assault and batterie and thereupon proces was awarded against him for the kings fine who then appeared and pleaded that the hurt which the plaintife receiued was by his owne assault and thereupon they were at issue and before the verdict the defendant appeared and confessed the Trespas and submitted himselfe to the Kings fauour and made his fine and demaunded iudgement if he should be allowed to plead not guiltie contrarie to his owne confession and this was adiudged a good Replication and an Estoppell of the said plea in barre And then the defendant pleaded that the hurt which the plaintife receiued was by his owne assault vpon which plea the plaintife demurred séeing the defendant before had pleaded that plea against the King And then he also waiued that plea and confessed the trespas whereupon a writ was awarded to inquire of dammages And so for this assault and batterie the king was first intituled to a fine by the Indictment and after the partie grieued recouered dammages by an action of Trespas 34 Imprisonment is where a man is arrested by force against his will and is restrained of his libertie What imprysonment is and put in a common Gaole or other gaole Lib. Intrac fol. 319. in a cage or in the stockes or otherwise kept in the high streete or open field if he be in restraint and cannot go at libertie when he will but is bound to become obedient to the will of the Law and is in the custodie of the Law And in all the cases aforesaid the partie so restrained is said to be a prisoner so long as he hath not his liberty fréely to go at all times when he will without baile mainprise or other restraint And therefore if one person do arrest imprison or otherwise restraine an other person of that libertie without sufficient and lawfull cause the partie grieued may haue an action of False imprisonment or an action of Trespas against him that doth so arrest An action of False imprysonment or imprison him and recouer damages against him And the King shall also haue a fine of him for that his law is contemned and his peace is broken in that one of his subiects presumeth to imprison an other without sufficient warrant of him or his law seeing imprisonment of an other by only act will or commaundement without offence of the Law is one of the kings most royall prerogatiues and only annexed to the maiestie dignitie and imperiall Crowne of this Realme For by the Statute of Magna charta it was specially ordeined Stat. 9. H. 3. 29. That no man shall be taken or imprisoned or disseised of his fréehold or liberties or frée customes or be outlawed or exiled or any other wayes destroyed neither shall any passe or fit in iudgement vpon him but by lawfull iudgement of his Péeres or by the Law of the land And by the statute of AnÌ„ 28. Ed. 3. it was enacted Stat. 28. Ed. 3. 3. That no man shall be put out of his land or tenement nor imprysoned nor disherited nor put to death without being brought in aunswere by due proces of the Law And therefore whereas the Maior and Burgesses of a towne corporate being before authorized by the Kings letters patents to make ordinances for the good gouernment of the same Towne did condiscend amongst themselues Co. Lib. 5. 64. to leuie a summe of money for the charges of a lawfull and necessarie act to be done in the same Towne and did further agrée that if any of them did refuse to pay his part of that contribution money so assessed to be paied that then he should be committed to pryson vntill he had paid it and after one of the Burgesses of the Towne which before had agréed to the same assessement ordinance Voluntarie consent no cause of imprysonment refused to pay the money which he was by the residue assigned and assessed to pay whereupon the Maior of the same Towne committed him to pryson against whom the same Burgesse brought his action of False imprisonment and recouered dammages against the same Maior for though the same Burgesse all others of the same Corporation might haue submitted himselfe to haue paid a summe of money to haue béen leuied by distresse or action of debt if he or they had not performed the same order paid his part of that contribution yet the libertie or impriâ—onment of his bodie resteth in the censure iudgement of the Law and not in his owne disposition As if B. do promise C. or be bound by Obligation vnto him that if he do not paie vnto the same C. xx li. within sixe monethes that then C. shall take and impryson him vntill he hath paid it notwithstanding B. do not pay to C. the same xx l. at the time assessed C. may not imprison B. for it though it was his owne promise agréement or bond for that B. is not iudged by his péeres or condemned by the law of the land according to the foresaid statute of Magna Charta Neither is he brought to answere by due Proces of the law according to the purport of the before specified statute of An 28. E. 3. 35 But in many cases one person may arrest ImprisonmeÌ„t by the commaundment of the King his Iustices c. imprison and restrayne an other of his libertie and no action of false imprisonment action of Trespas or other remedie will be had against him As first it is a lawfull imprisonment which is done by the absolute commaundement of the King the chiefe Soueraigne head of the common weale by his owne mouth or by the priuie Councell which speake and direct by his Authoritie or by
linguae Therefore the more to encourage Marchants to continue here and also others to come with their marchandizes into this Realme by a Statute made Anno 8. H. 6. St. 8. H. 6. 29 it was declared That the same Statute made Anno 2. H. 5. should be no wayes preiudiciall to the foresaid first statute made 28. Edw. 3. nor was not meant that it should extend to any but onely to Enquests to be taken betwéene Denizon and Denizon and not to the other Enquests or proofes mentioned in the sayd Statute of 28. Ed. 3. viz. to Enquests to be taken betwéene Denizons and Aliens And that the first statute of 28. Ed. 3. should bée effectuall stand in force and be put in execution according to the forme thereof notwithstanding the later Statute of 2. H. 5. and notwithstanding that Aliens haue not lands or tenements of the yearely value of fortie shillings according to the purport of the sayd later statute of 2. H. 5. And so by this statute want of sufficient fréehold is the cause of Challenge to Aliens which bée impanelled with English men But yet it séemeth to be a cause to challenge English men who bée impanelled with Aliens for the perclose of this Statute doth wholly relye vpon Aliens This last rehearsed Statute of 8. H. 6. willeth That the intent of the other Statute of 2. H. 5. should bée preferred before the words thereof and so the Iudges of the law haue expounded it 9. H. 6. 27. for they haue allowed a Iuror which had not fortie shillings of fréehold to bée sworne in an Enquest if others had so much land to his vse And where the words of the statute be If he hath not lands or tenements of the yearely value of fortie shillings and doth not expresse in what Countie yet they doe take it by intendment that the lands must bée in the Countie where the issue is to bée tryed 9. H. 7. 1. M. 12. H. 7. 4 H. 32. H. 8. 20. P. 21. H. 6. 39. And for that the words be in the Present tense viz. if hée hath not they doe expound it that the Iuror must haue so much land in the same Countie at that time when he is sworne for though he had so much land when he was impanelled yet if he hath aliened it or that the same was euicted from him by an auncient title before the time hee was sworne the challenge of insufficiencie shall bée allowed vnto the prisoner And whereas the foresayd statute of 2. H. 5. hath ordayned That no person shall be admitted to passe in any Enquest vpon the tryal of the death of a man if hée hath not lands of the yearely value of fortie shillings this is not meant of the tryall of the death of a man which is slaine but of the tryall of the death of a man which standeth at the barre vpon the question of his life or death And then will this challenge serue for want of sufficient lands vpon the triall of all maner of felonies and treasons By the Statute of 33. H. 8. it is enacted That he which is arraigned of treason St. 33. H. 8. 12. murder or manslaughter committed within the Verge shall haue no maner of challenge to any of the Iury malice only excepted and so shall haue no challenge for want of sufficient fréehold And in like sort it is ordained by the Statute of Anno 3. H. 7. St. 3. H. 7. 14 That hee which being the Kings seruant sworne and whose name is in the checke Roll of the Kings houshold vnder the degrée of a Lord which is arraigned for conspiring with any other to destroy any Lord of this Realme or any other sworne to the Kings Councell Or the Steward Treasurer or Controller of the Kings house shall not haue any challenge but for mallice and so shall haue no challenge for want of sufficient fréehold By a Statute made Anno 33. H. 8. St. 33. H. 8. 13. it was enacted That if a Commission of Oyer and Determiner bée directed into any County for the tryall of any person which doth confesse any Murther to thrée of the Kings Councell or is vehemently susspected thereof no challenge for the Hundred or Shire shall bée allowed vnto him But the challenge of any Iuror for lacke of Fréehold of the yearely value of forty shillings shall bée allowed as hath béene accustomed And because Trials in Murthers and Felonies in Cities Boroughes and Townes corporat within this Realme hauing authoritie in the deliuerance of such offendors were oftentimes deferred and delayed by reason of challenge made by such offendors of Iurors for lacke of sufficiency of fréehold to the great hinderance of iustice for the redresse thereof by a statute made Anno 23. H. 8. St. 23. H. 8. 13. it was enacted That euery person being the kings naturall subiect borne which either by the name of a citizen or a fréeman or any other name doth enioy the liberties of any City Borough or Town◠corporat where he dwelleth being worth in mooueable goods to the cleare value of forty pounds shall bée admitted in tryall of Murthers and Felonies in euery Sessions and Gaoles of deliuery kept in and for the liberty of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this act extendeth not to any Knight or Esquire dwelling abiding or resorting to any such City Borough or Towne corporat any thing in the same act to the contrary hereof notwithstanding 5 Vpon the arraignement of a prisoner the king by his prerogatiue might haue challenged euery of the Iurors peremptorily by the common law without shewing of any cause thereof and by that challenge the same Iuror should haue béene presently drawne But this was a great mischiefe and offence to the subiect who by that meanes was infinitely delayed and had often put out of the Iury the most discréet and indifferent men which were returned for his tryall For the remedy whereof by a Statute intituled Ordinatio de inquisitionibus Challenge for the king made Anno 33. Edw. 1. St. 33. E. 1. it was established That touching Inquisitions to bée made before any Iustices wherein the king is any way a party although it bée alleadged by those which doe prosecute for the king that the Iurors of those Inquisitions or any of them bée not good for the king those Inquisitions shall not therefore remaine to bée taken But if they which doe pursue for the king will challenge any of those Iurors they shall shew a certaine cause of their challenge and the truth of that challenge whether it bée true or not shal be inquired of according to the Iustices discretion But he that doth prosecute the sute for the king néede not presently shew the cause vpon his challenge as a common person should do if he were party against the king for he may shew that cause when he hath perused the whole pannell But if he that is arraigned
any person or persons or to his or their right heires Or at any time since the said 20. day of Iuly hath conueyed or hereafter shall conuey or make by couin contrarie to the true intent of the Act prouided 34. H. 8. for the making of Wils any estates conditions mesnalties tenures or conueyāces to the intent to defraud or deceiue the King of his Prerogatiue primer seisin liuerie reliefe wardships mariages or rights or any other Lords of their wardships reliefes heriots or other profits which should or ought to accrue growe or come vnto them or any of them by or after the death of his or their tenant by force and according to the Statutes made 32. H. 8. 1. 34. H. 8. 5. and the same estates and other conueyances béeing found by office to be so made by couin fraud or deceit contrary to the true intent of the said Acts Then the king shal haue as wel the wardship of the bodie and custodie of the lands c. as liuery primer seision reliefe and other profits which should or ought to appertaine to him according to the true meaning of the said acts as though no such estates or conueyances by couin had neuer béene had or made vntill the said office be lawfully vndone by trauerse or otherwise And the other Lord and Lords of whom any such lands c. shal be holden by Knights seruice as is aforesaid shall haue their remedy in such cases for his or their wardships of bodies and lands by writ of right of ward and shall distraine and make auowrie or cognisance by themselues or their bailifes for their reliefes heriots and other profits which should haue béene to them due by or after the death of their tenant as if no such estate or conueyance had béene had or made Sauing the right and title of the donees feoffées leasées and deuisées thereof against the said deuisor and his heyres after the interest and title of the King or other Lord therein ended 24 If the father doe make a feoffment of his lands holden by Knights seruice Fitz. Collusion 29. 33. H. 6. 14. Co. li. 1. 122. to his eldest sonne He that is not partie to a fraud shall sustaine no losse then by the foresaid Statute of Marlebridge the Lord of whom the same lands be holden is inpossibilitie to haue the wardship of the said sonne if the father die his said sonne being within age But if the same sonne doe after make a feoffment of the same land to an other bona fide and after the father doth die leauing his sonne within age there this possibilitie is destroyed for that the stranger who had no notice of this fraud hath purchased the land bona fide and therefore shall sustaine no preiudice by it And yet in that case if the sonne had made the Feoffment after the fathers death Co. li. 2. 94. this alienation had not depriued the Lord of his wardship which was once lawfully deuolued vnto him 25 And it is a deceit collusion and defrauding of the lawe and a great disheritance and preiudice to the Lords of the Fee of whome any lands bee holden to giue the same lands in Mortmaine or to doe any Act or procure any thing to be done whereby they may come into Mortmaine contrarie to the statutes of Magna Charta 7. Ed. 2. 13. Ed. 1. 15. R. 2. and 23. H. 8. for the Lordes doe loose the wardships mariages reliefes and other seruices of their Tenants by that meanes And therefore by the Statute of West 2. it was enacted That if any religious or Ecclesiasticall person doe impleade an other St. 13. E. 1. 31. by a Reall action of land and the Tenant will make default after default whereby hee ought to loose the land Then hee which doth recouer shall not haue Execution of the same Land recouered vntill he hath sued forth the kings writ of Quale ius directed to the Escheator of the same countie to make enquirie by a Iurie what right hee that recouered the land hath to the same And if he hath right Deceit and Collusion to bring land into mortmaine iudgement shal be giuen for him he shall haue execution of the same land And if it be found that he hath no right to recouer by his said action but that the lands were lost by collusion betwéen him and the tenant of the land then the land shall accrue to the next Lord of the fee if hée demaund it within a yéere next after the Enquest taken And if he doth not demaund it within a yeare it shall accrue to the next Lord aboue if he demaund it within halfe a yeare after the same And so euery Lord after the next Lord immediat shall haue halfe a yeare to demaund it successiuely vntill it come to the King to whom through the default of other Lords the land shall accrue For this recouerie of land by default by a compact and couin before agreed vpon betwéene the demaundant being a religious or Ecclesiasticall person and the tenant is to defraud the intent and meaning of the Statutes of Magna Charta and an 7. Ed. 1. whereby it was ordained St. 9. H. 3. 37 St. 7. Ed. 1. That if any religious person or other whatsoeuer will buy or sel any lands or tenements or wil receiue the same by colour of any gift or lease or by reason of any other title whatsoeuer or will by other practise or deuise procure the same to himselfe whereby such lands or tenements may come into mortmayne he shall forfeite the same lands And by the equitie of the foresaid Statute of Westminster 2. if any Ecclesiastical person doe recouer land against another by reddition 3. Ed. 4. 14. confession or action tried yet the collusion shal be inquired of for that the same recouerie may be by collusion before had betweene the demaundant and the tenant And because that by feoffments fines recoueries and other assurances made of trust of lands to the vse of parish Churches Lands assured in Mortmaine to churches chappels Guilds c. Chappels Guildes Fraternities c. there groweth to the King and other Lords and subiects of the Realme the like losses inconueniences and is as much preiudiciall to them as doth and is where lands be aliened in mortmaine Therefore for the eschuing and auoydance of them by a Statute made an 23. H. 8. it was enacted St. 23. H. 8. 10. That all feoffments fines recoueries wills and other estates deuised or in any wise made of trust of any mannors lands tenements or hereditaments to the vse of any parish churches chappels churchwardēs Guildes fraternities or brotherhoods erected or made of deuotion or by common assent of the people without any corporation Or that the Feoffees Conisees Recouerées or other persons and their heires thereof seised shall take leuie or perceiue or cause to be taken c. the issues and profites thereof and the same to
shall willingly and wittingly put in vre auowe maintaine iustifie or defend the same or any of them as true simple and done or made bona fide and vpon good consideration or shall alien or assigne any the lands tenements goods leases c. to them conueied or any part thereof shall forfeit to the Queene c. and the partie grieued by such fraudulent feoffement gift bond suit c. one yeares value of the said lands c. leases rents or other profits and the whole value of the said goods and cattels and so much money as shall be contained in such couenous and fained bond to bée recouered by A. I. B. P. c. wherein no W. E. P. c. And béeing thereof lawfully conuicted shall suffer imprisonment one halfe yeare Common recoueries without Baile or Mainprise But common Recoueries had against Tenant in taile or other tenant of the fréehold of lands the Reuersion or Remainder or right of Reuersion or Remainder whereof then shall bée in any other person shall as touching such person and his heires which hath the Reuersion or Remainder thereof be of like force and none other Voucher in Formedon as the same should haue béene if this Act had not béene made And no estate or conueyance by reason whereof any person shall vse any voucher in any writ of Formedon shall bée made void by this Act But euery such voucher in any writ of Formedon shall be of like force as if this act had not béene made Lands or goods assured bona fide and vpon good cōsideration Prouided alwaies that this Statute shall not extend to any estate or interest in lands leases goods c. lawfully assured vpon good consideration and bona fide to any person or persons bodies politique or corporat not hauing at the time of such conueyance c. any knowledge of such fraud or collusion as is aforesaid Fraudulent déeds to auoid forfeitures 29 If a man to preuent a forfeiture for a felonie or vpon an outlarie Co. li. 3. 82. will make a gift of all his goods and after is attainted of felonie or outlawed these goods shall be forfeited notwithstanding this gift for this word forfeitures specified in the foresaid Statute of Anno 13. St. 13. El. 5. El. shall not be intended onely of the forfeiture of an obligation Recognisance or such like but also of euery thing which by the Law may be forfeited to the King or to a Subiect And the same Act of Anno 13. El. shall not extend onely to creditors but also to all others who haue cause of Action or suit or to haue any penaltie or forfeiture And if a man do bind himselfe and his heirs to pay to another a certaine sūme of money at a day assigned and before the day doth come of paiment Co. li. 5. 60. the obligor dieth leauing to his sonne and heire sufficient land to pay the same debt the heire doth enter and alien the same land before the obligée doth commence his suit vpon the said obligatiō If vpon the suit of the same obligation the heire do plead nothing but discent and vpon the trial of that issue the foresaid alienation be found by the Iurie to be made by fraud to deceiue the said creditor of his debt or that be pleaded the said alienation shal be void by the foresaid statute of 13. El. and the plaintife shall recouer A déed of gift must be vpon good consideration and bona fide 30 In the said Statute of Anno 13. El. there is one Prouiso St. 13. El. 5. That the said Act shall not extend to any estate or interest in lands tenements or hereditaments leases rents commons profits goods or cattels which is or hereafter shall be lawfully had made conueyed or assured vpon good consideration bona fide to any person or persons or bodies politique or corporat not hauing at the time of such conueyance or assurance to them made any manner of notice or knowledge of such couin fraud or collusion By which Prouiso it appeareth that the gift which is within the compasse of the same Prouiso must be both vpon good consideration and also bona fide And therefore whereas A. did owe to B. CC. l. and to L. a hundred pounds Co. li. 3. 80. payable by two seuerall obligations L. brought an Action of debt against A. vpon his said obligation of a hundred pound during which sute A. being possessed of goods and cattells to the valew of two hundred pounds in secret made a generall déede of gift by writing of all his goodes and cattells Realls and Personalls whatsoeuer to B. in satisfaction of his debt and notwithstanding A. continued in possession of the same goods and sold some of them and did share and brand the shéepe with his owne brand and after L. had iudgement to recouer against A. and had a Fieri facias directed to the Shiriffe of the Countie where A. dwelt who by force of the Writ came to make execution of the same goodes but B. resisted him by force clayming those to be his goodes in respect of his said déede of gift and reported that it was a good déed of gift and made vpon lawfull consideration But in the Starrechamber this was adiudged a fraudulent déede and within the statute of 13. Infallible markes of a fraudulent deede of gift Eliz. for this déed of gift had all the badges and markes of fraud for it was generall and without any exception of his apparrell bedding or any other necessary thing and the owner continued in possession of all the goods and vsed them as his owne and the déede of gift was made in secret and not sealed deliuered nor published amongst his neighbours And it was made whilest the sute was depending betwéene L. and A. And héere was a trust betwéene the Donor of these goods and the Donée for the Donor possessed the goodes and vsed them as his owne and fraude is alwayes shaddowed with trust and trust is the couer of fraud and the writing purported that the déede was made honestly truely and Bona fide which be not accustomed words in a déede of gift and vnusuall termes in any Instrument doe bréed suspition And though this was a true debt due to B. and the consideration was good yet this was not within the before specified Prouiso for that the déede of gift was not made also Bona fide for no déede shall be adiudged to be made Bona fide according to the said Prouiso which is accompanied with any trust and the words of the Prouiso be in the copulatiue vpon good consideration and Bona fide So that good consideration will not serue vnles the gift be also Bona fide viz. to the intent that the Donée shall haue carry away and enioy to his owne vse the possession of the same goodes without any trust expressed or implied and therefore whosoeuer will make a déede
by the heire it is a good plea to plead 20. H. 6. 47. Kel fol. 120 Fi. Cor. 384 27. Ass p. 25 that he which is dead hath a wife liuing to whom the appeale is giuen or that the plaintife who supposeth himselfe to be heire is not next heire to him that was slaine but that he hath an elder brother or that he is a bastard or to plead that the plaintife in this appeale of death hath surceased his time for that the appeale was not brought within the yeare and day after the death of him who is supposed to be killed or to say 8. H. 4. 18 that he of whose death this appeal is brought is liuing at such a place or to bring the party supposed to bee slaine into the court that he may be séene and knowne to be liuing Fi. Cor. 17 11. H. 4. 14 91 In an appeale of Robbery it is a good plea to plead that the plaintife is his villaine And in appeale of Rape brought by the husband and wife Robbery Rape it is a good plea to plead neuer accoupled in lawfull marriage or to plead villenage in the plaintife In an appeale of Robberie it is no good plea for the defendant to plead in barre Co. lib. 4. 43 2. R. 3. 14 that the appellant brought an action of Trespas against him for the same goods caried away and recouered for the appeale of Robbery is of a higher nature and concerneth the life of a man 92 There be some other pleas in barre in an appeale which bee generall Generall pleas in barre in appeale and will serue for all manner of appeales of Felony Fi. Cor. 32 2 as to plead that the plaintife is attainted of Treason or Felony Or that he is a Monke a Priest not of perfect memorie dumbe deafe a lazar a naturall foole or that he is maymed by another and not by the defendant But if the plaintifes attainder bée but by Outlawrie which is erronious then his attainder is no barre but for the time Fit Vtlarie 47. viz. vntill he hath reuersed the Vtlary S. Approuers 10. 14. 93 It is a good plea in barre in an appeale The plaintife brought another appeale to say that the plaintife at another time brought an appeale of the same felony against the defendant 9. H. 4. 2. 47. Ed. 3. 16. in the which he was Nonsute or made a Retraxit Or that the plaintife did at another time pursue an appeale of the same felony against another who was attainted or acquit at his sute If a man be indicted of Manslaughter and vpon his arraignment he confesseth the felony and prayeth and hath his Clergy If after an appeale of murther be brought against the said offendor Co. li. 4. 40. 45. of the murther of the same man it is a good plea for him to plead that he was at another time conuict of the same felony And the same law is if one bring an appeale of Murther against another and the defendant pleadeth not guilty and is found guilty of manslaughter and hath his Clergy if after he be indicted arraigned of the same offence and he doth plead the former conuiction it is a good plea in barre S. Indictments 47. Fit Cor. 98. 94 It is a good plea in barre in an appeale for the defendant to plead The plaintifs release in barre that the plaintife made vnto him a Release of the same offence for it will not serue to plead a Release made to any other sauing to himselfe though the other to whom the Release is made be named with him in the appeale And in like sort though the plaintife made a Retraxit against one of them this shall not barre him against them both but the appeale shall stand good against the other 95 And when the defendant hath pleaded any of the foresaid pleas Pleading not guilty after other pleas yet in fauor of life the law doth permit him to plead ouer to the felony viz. not guilty and his plea by that means shall not be adiudged double 22. E. 4. 39. vnlesse it be in the case of a release for there he shall not be allowed to plead ouer to the felony because it is contrary to his foresaid plea Neither shall he plead ouer to the felony when the defendant in an appeale of Robbery doth plead Villenage in the plaintife for if hee should plead ouer to the felony the plaintife by that meanes should bée infranchised 28. E. 3. 91. 18. E. 3. 32 But if the Villenage be found against the defendant hee shall haue this plea of not guiltie as well as hee shall haue when he pleadeth any of the foresaid barres without concluding ouer to the felony yet notwithstanding if the barre be fouÌ„d against him he may plead ouer to the felony viz. not guilty sauing in pleading of a release for by that plea he confesseth the felony by implication Where the K. may prosecute an appeale begun by another 96 If the appellant do surcease to prosecute his appeale against the defendant the king may pursue it for the appellant may by seuerall meanes leaue off and omit to prosecute his appeale as by Nonsute Release Retraxit 3. H. 6. Fi. Cor. 3 or a woman by taking a husband during the sute of Appeale and because in all those cases the sute doth cease by the act of the party plaintife therfore in which of them soeuer it doth cease after declaration in the appeale the defeÌ„dant shall not go at liberty but shal be arraigned at the kings sute vpon the same declaration for that it doth appeare by the declaration there is a felony committed and the yeare day and place where and when the said felony was committed and the same is not yet tried and the law will not allow such great offences whereof she taketh notice to be concealed and remaine vnpunished And the same law is if the appellants appeale doe cease by the act of God 21. E. 3. 18. as if the appellant doe die Or if it cease by the act of the Law as if the appellant be hanged Or if the appellant do take the priuiledge of his Clergy Fi. Cor. 369 in which cases the defendant likewise shal be arraigned at the K. sute But in euery arraignment which is to be at the K. sute vpon an appeale begun by an appellant the declaration in the same appeale must be once good and true for if it were neuer good and abated for that cause Fit cor 1â—1 the appellée shall not be arraigned at the kings sute notwithstanding the abatement be after declaration And therefore if the appeale be abated by misnaming of the defendant 4. H. 6. 16 he shall not be arraigned at the kings sute Or if it be abated by misnaming of the plaintife or of the towne or for want of a materiall word And so it is if the defendant in an appeale doe
any thing to say now that is true séeing he would not speake it at that time when hée might haue béene heard But in the foresaid cases if the approuer can shew any sufficient matter which doth restore him to the lawe 21. Ed. 3. 17 as the Kings pardon and such like then the appellée shall answer to the approuer S. Appeales 92. An Appellée cannot appeale others 11 If he which is appealed by an approuer will confesse the appeale and pray that he may become an approuer and appeale others hée shall not bée receiued thereunto for seuerall causes one is for that he is appealed of felonie and not indicted of felonie and in an appeale there lieth no approuement another cause is for that if his approuement should be of the same felonie he should thereby falsifie the appeale of the first approuer in that he did not at the first discouer all his companions being sworne thereunto And a third cause is Fi. Cor. 113 for then by that meanes approuements would be infinite and also the appellée is in a sort out of the lawe for that the approuer hath deraigned an appeale against him 21. Ed 3. 18. Fi. Cor. 231 12 It is a good exception for the appellée to obiect against the approuer Approuer not in prison for felony or at libertie that the approuer is not in prison for any felonie or treason but for debt or trespasse or some other offence or to say that the approuer is not in prison but at large for he cannot be an approuer vnlesse he be first indicted of felonie and doth confesse it before a Iudge and then become an approuer Bracton 13 It is a good plea as some doe affirme for him that is appealed The appelleé an honest and credible man to say that he is a lawfull man and in the franke pledge and in the Assise of our soueraigne Lord the King and that hée hath a Lord which will be his pledge And if that be trauersed and found for the appellée he shall be discharged thereby Sed quaere Fi. Cor. 322 14 In an appeale by an approuer the appellée may pleade General plees in Barre of the appeale that the same approuer is a priest not of perfect memorie deafe dumbe a lazar a naturall foole a woman a man aboue thréescore and tenne yéeres of age or within age or that he is mayhemed by some other and not by the appellée for that in these cases the approuer cannot deraigne or wage battell with him S. Appeales 93. 15 In diuers cases if the appellant doe surcease to prosecute his appeale Where the King may pursue an appeale begunne the king may pursue it for the appellant may by seuerall meanes leaue off to prosecute his appeale 3. H. 6. 50. as by Non-suite Release Retraxit or a woman by taking a husband during the suite of appeale for in all these Cases the appeale doth cease by the act of the partie therefore in which case soeuer that Cesser is after declaration in the appeale the Defendant shall not goe at libertie but shall be arraigned at the Kings suite vpon the same declaration for that it doth appeare there is a felony committed and the same is not yet tried And the same Lawe is if the appeale doe cease by the act of God as if the appellant doe die 21. Ed. 3. 18 Fit Cor. 369 Or if it cease by the act of the Lawe as if the appellant after his appeale made be hanged Or if the appellant doe take the priuiledge of his Cleargie for an appeale by an approuer is a great presumption against the Defendant that he is guilty of the offence whereof he is appealed and that is for the great punishment which the appellant is to suffer if he at any time doe faile of his appeale viz. death And an appeale doth worke a greater presumption against the Defendant than an Indictment doth 4. Ed. 4. 10 for that it is vsed if a man be appealed and indicted of one offence and the Plaintife in the appeale after declaration is Non-suite the Defendant shall be arraigned at the Kings sute vpon the declaration in the appeale and not vpon the Indictment But this presumption riseth where the appellant hath appeared to his suite 8. Ed. 4 25. and declared for vntill that time it carieth not with it any presumption Because any man may sue a Writte of appeale out of the Chauncerie in a strangers name and finde pledges to prosecute it and cause the Writ to be deliuered to the Shirife of Record that stranger not knowing thereof in which Case it shall not be saide that strangers suite vntill he hath appeared in proper person thereunto and declared 7. H. 7. 5. Fi. Cor. 384 for vntill that time Non-suite in the appeale is not peremptorie to the stranger Neither shall the Defendant be arraigned at the Kings suite by this Non-suite any more than if hée had not béene Non-suite But in that Case if a stranger doe bring a new appeale against the Defendant the Defendant shall aunswere him as hée should haue done if no such Non-suite had béene But the Lawe is otherwise in an appeale commenced by Bill for that suite of necessitie must be made by the party himselfe in his owne proper person 22. As p. 97 and his apparance must be recorded by the Shirife and Coroners and the yéere day and place expressed where and when the felonie was committed and who were principalles in the same felonie and who were accessories And so in an appeale by Writ the Plaintifes Non-suite before declaration doth giue the King no aduantage against the Defendant but in an appeale commenced by Bill before the Shirife and Coroners or in an appeale by an approuer it is otherwise for in such an appeale all the certaintie of the felonie is declared and comprised 2 3. P. M. Dy 121. In an appeale of murder against thrée if one of them pleade Not guiltie ready to defend himselfe by his body and so wageth battaile vpon which plea the Plaintife demurreth in lawe which demurrer is adiudged against him in this Case the same appellée shall be arraigned at the Kings suite for that the felonie is not yet tried nor he acquit thereof And if one of the other appellées doe pleade Not guiltie and that the Plaintife doth demurre thereupon and it is adiudged a good plea and the same appellée is acquit against the appellant yet he shall be arraigned at the Kings suite of the same murder S. Appeales 96. The Appellants release to the Appellée 16 If the Defendant in an appeale do pleade a Release inrolled Fit Cor. 12 and of record made vnto him by the appellant before the appeale commenced he shall be presently deliuered But if it be made after the appeale commenced the the Court will intend that it is of purpose to defraud the King and therefore in
Coroners will answer He that hath a pardon shal find sureties for his good abearing that he from thenceforth shall beare himselfe well and lawfully And the maineprises shal be sealed and returned into the chancerie within thrée moneths after the end of the said thrée moneths And if hée which hath such Charter will ayd himselfe thereby and hath not found such mainprises or after such mainprise found doth beare himselfe otherwise against the peace than he ought his charter shal be accounted void of no force The good behauiour broken after a pardon 14 A prisoner that was indited outlawed of felonie 3. H. 7. 7. pleadeth the Kings pardon of the same felonie and outlawrie but shewed no writ of allowance testifying that he had found suretie in the Chauncerie according to the foresaid Statute of 10. Ed. 3. neither did he make mention in his plea that he had fouÌ„d suretie according to that Statute nor yet did he vouch the Record thereof in the Chauncerie therefore the Iustices had no cause to allow of his Charter of pardon And the same offendor after his pardon graunted was indited before the Iustices of peace of the countie where he dwelt that he did beat and wouÌ„d A.B. against the Kings peace and thereof was conuict before the same Iustices of peace by his owne confession which Record of his conuiction was sent into the Kings Bench by the said Iustices of peace and for that he had borne himselfe otherwise than he ought toward the peace his charter of pardon was adnulled he had iudgement of death and was hanged A pardon must agree with the inditement 15 A Charter of pardon ought to agrée with the Indictment in the name surname and addition of the partie to whom the same Charter is graunted to the intent that he may be knowne to be the same person which is indited or otherwise it is not allowable sauing in some speciall cases As 11. H. 4. 3â— in appeale of death where the plaintife was non-suit after declaration and the defendant was arraigned at the Kings suit vpon the declaration whereunto he pleaded the Kings pardon which did not agrée with the appeale in the name of him that was slaine Where a charter may vary from the indictment nor in the day but agréed with the inditement in the death of the selfe same man to the which inditement this pardon had before time bin pleaded and allowed And for that it may well be intended of the same death séeing one man cannot haue two deaths it was allowed notwithstanding the variance Two men were outlawed in appeale of murder 28. 29. H. 8. Dy. 34. and they purchased their pardon and had a Scire facias against the Plaintife in the appeale and also a Scire facias against the Lords mediate or immediate and the pardon did not agrée with the inditement in the additions but the parties tooke an auerment that they were the same parties which were indited and an exception was taken to the pardon for the words of the pardon were Pardonauimus c. W.B. L.B. omnes omnimodas vtlagarias versus praefatos W.B. L. B. seu versus eorum alterum promulgatas which words in the premisses of the pardon be ioynt where they should haue been Pardonauimus c. W.B. L.B. eorum alteri because that euery felonie is seuerall and for these seuerall felonies they should haue had seuerall pardons And yet the pardon was allowed If a man be indited of felonie by the name of A.B. yeoman and after the King doth pardon him by the name of A. B. gentleman esquire 20. H. 7. Kel fol. 58. knight or c. all manner of felonies he may plead this pardon and auerre that A. B. yeoman and A. B. gentleman or c. be one person and this pardon will discharge him for it may be he was a yeoman at the time of the inditement and after made gentleman by the King or by some office 4. E. 4. 10 16 When after non-suit in appeale the Kings pardon is allowed it is vsed to enter the pardon and alowance vpon the bill of appeale The pardon and alowance entred vpon the appeale and thâ—refore if there be any inditement of the same felonie against the defendant it shalbée good for him to cause these words to be entred and indorced vpoÌ„ the indictmeÌ„t viz. Cesset processus faciendus super indictamentum eo quod defendens acquietatus recessit ab Appello 4. Ed. 4. 10 17 All this matter of pardons is in effect to be referred to indictments because the Kings pardon is no plea to the parties appeale A pardon no plea to an appeale for the felon shalbée put to death notwithstanding that But it is a good plea against the King when the appeale is determined And if it be determined by act in law and not by the act of the partie the pardon shall not be allowed without warning of the partie as in appeal the plaintife doth pursue it vntill he hath outlawed the defendant in this case by the Outlawry the appeale is determined and yet if the king doe pardon the defendant the pardon shall not bée allowed vntill hée hath sued a Scire facias against the party at whose suit he was outlawed And if at the day of the Scire facias returned the partie doe appeare the Appellant may pray execution of him notwithstanding the pardon but if the Appellant be returned warned and doth make default the Charter shal be allowed without further suit Co. l. 50. 100 3. El. Dyer 201 261 The Kings pardon of burning in the hand In an appeale of murder the defendant pleaded not guiltie vpon his arraignment and by the enquest was found guiltie of manslaughter and then prayed and had his Clergie Whereupon by force of the Statute of anÌ„ 4. H. 7. 13. St. 4. H. 7. 13 he being a conuict person ought to bée marked by the Gaoler openly in the Court which marking or burning in the hand the king did and may pardon though it be in an appeale for burning in the hand is no part of the iudgement but onely a meane to notifie to the Iudge vpon an offendors second conuiction that he once before had his Clergie vpon a former conuiction And for that it was ordained by the Statute of anÌ„ 18. El. 6. St. 18. El. 6 That after Clergie allowed and burning in the hand the prisoner shall be forthwith enlarged and deliuered out of prison which act doth extend as well to the case of the Appeale as to the case of an Indictment Therefore the King hauing pardon the burning in the hand the partie was also discharged of his imprisonment 2. R. 3. 8 18 A Scire facias vpon a Charter of pardon may be graunted against an appellant Vpon a pardon a Scire facias against an appellant though the appellée which doth pray it sheweth
a Lords freeholder to plead That those tenants of the plaintifes which departed from their tenancies were the fréeholders and the fréehold tenants of the plaintifes and not his tenants at will For if it be so the plaintife shall recouer nothing against the defendant because hee hath other sufficient remedie to recouer the seruices of his fréeholders or the land in stead of thē And so it is to plead that the tenants which departed 21. H. 6. 31. were tenants for terme of yeares 6 In the cases aforesaid he that is wronged in his owne person his seruants or tenants by the menace of another whereby hée sustaineth losse shall haue his action of Trespasse against the offendor for the said menace and the hurt which he receiueth thereby and the king also shall haue a fine of the offendor for that the menace was of life and member and suggested to bee done vi armis and so tended to the breach of the peace But if it bée such a menace as doth not tend to the breach of the peace Menace which is iustifyable then the law is otherwise for then the partie menaced shall neither haue an action of Trespasse or other remedie against the menacer neither shall the king haue a fine of him As if a man dye seised of certaine lands and a stranger will abate 22. H. 6. 48 21. H. 6. 26. 9. H. 7. 7. and then the heire of him who dyed seised will enter vpon the stranger and menace and threaten him That if he will not depart from the possession of the same land that then hée shall repent it as the law will allow this is menace iustifiable for that he hath said no more than the law will allow him to performe And in like sort if A. be disseised of his fréehold eiected out of his terme of yeares Li. Intr. 555 dispossessed of his goods beaten assaulted or euill intreated by B. if in this case A. will say vnto B. That he will not endure those wrongs nor put them vp at his hands but will prosecute suit according to the law of the Realme in the sharpest maner that he can for the redresse of those iniuries and for the due punishment of B. this is menace iustifiable and nothing tending to the breach of the peace for A. hath said nothing but that the law will permit him to doe And in these cases the menacer doth yeeld to make the law iudge of his wrongs and that also in peaceable manner but in the former cases the menacer doth threaten to be the reuenger of his owne iniuries and so to be his owne iudge and that also in a forcible and vnlawfull sort And so it is if one man owe money to another and at the time assigned doth not pay if the creditor do say to the debtor that he will sue him according to the course of law 16. E. 4. 7. and imprison him for his debt this is menace iustifiable for the law doth allow him to doe it 7 As menace in words is accounted in many cases to be a meane of the breach of the peace and so punishable by the lawes of the realme so menace by deeds by behauiour gesture wearing of armour or vnusuall and extraordinarie number of seruants or attendants is accounted to be in affraie and feare of the people a meane of the breach of the peace and so punishable for the law doth intend that he which in a peaceable time doth ride or goe armed without sufficient warrant or authoritie so to doe doth meane to breake the peace and to doe some outrage seeing she is able and wil be alwaies ready to defend euery member of the common weale from taking or receiuing of force or violence from others if himselfe doe not giue cause to the contrarie Whereupon by a Statute made at Northhampton St. 2. E. 3. 3. anno 2. Ed. 3. it was enacted That no man great nor smal of what condition soeuer he be except the kings seruants in his presence his ministers in executing of the kings precepts or of their office and such as be in their companie assisting them and also vpon a Crie made for armes to keepe the peace and the same in such places where such acts happen be so hardie to come before the kings Iustices or other the kings ministers in doing their offices with force and armes nor bring no force in affraie of the peace nor to goe nor ride armed by day nor by night in faires markets Menace by going or riding armed nor in the presence of the Iustices or other ministers nor in no part elsewhere vpon paine to forfeit their armour to the king their bodies to prison at the kings pleasure And that the kings Iustices in their presence Sherifes and other ministers in their bailiwicks Lords of franchises their bailifs in the same mayors bailifs of cities boroughs within the same cities boroughs borough-holders wardens of the peace within their wards shal haue power to execute this act And that the Iust assigned at their cōming down into the coūtrey shall haue power to inquire how such officers Lords haue executed their offices in this case to punish them whom they find haue not done that which pertained to their office St. 7. R. 2. 13 20. R. 2. 1. And after by a statute made anno 7. R. 2. it was ordained That no Lord Knight nor other little or great shall go nor ride by night or by day armed nor beare sallet or skull of yron nor other armour vpon the paine of forfeiture thereof to the king except the kings officers and ministers in doing their offices And by the same statute it was also assented that none should ride or goe with Launcegaies Launcegaies beeing an armour defensiue then vsed in affraie of the people but that the same Launcegaies should be for euer put out 8 And shortly after the same Statute of 2. Ed. 3. was put in execution Wearing of a priuie coate for a knight was attached and arraigned in the kings Bench for that hee did weare armor vnder his vpper garment in the kings palace 24. E. 3. 33. and in Westminster hall who pleaded that there was debate betwéen him and another knight who did that weeke strike him and yet did menace him and that for feare of further perill and to saue his life hee did weare the same armour But this was adiudged no plea for the court did award that hee should forfeit his armour and be committed to the marshalsey And though he desired to be let to mainprise he was not admitted thereunto vntill the kings pleasure was knowne And the other knight his aduersarie was sent for into the kings Bench and there commanded vpon paine of all that he could forfeit that hee should not meddle nor doe any thing but that which was good to his said aduersarie Labourers shall weare no weapons
at which sessions the said person vpon his reconciliation repentance before the said Iustices at the said sessions shall be deliuered out of prison vpon sufficient surety of his good abearing and behauiour to be then and there taken by the said Iustices for one whole yeare then next ensuing as by the discretion of the said Iustices then and there being or of the more part of them shall be thought conuenient And if the said person will not be reconciled and repent at the said quarter sessions then he shall be further committed to the said Gaole by the said Iustices there to remaine without baile or mainprise Rescuing the offendor or disturbing the arrest vntill he shall be reconciled and be penitent c. And if any person or persons of their owne authoritie willingly and vnlawfullie doe rescue any offendor so apprehended or will disturbe the said offendor to be apprehended then euery of the said Rescuers or disturbers shall suffer like imprisonment as is aforesaid and further shall pay for euery of his offences v. l. to the Quéene The punishment of the Town where the offendor dothe scape If any of the offendors aforesaid be not apprehended in time conuenient but doe escape then the said escape shall be lawfully presented before the Iustices of peace at the next quarter sessions c. and the Inhabitants of the parish where the said escape was suffred shall forfeite to the Quéene c. for euery such offence v. l. to be leuied and taken as other like amerciaments and fines be leuied vpon any village hundred or towne for the escape of any murderer or other felon for not making pursuit vpon huy and cry according to the Statute of Winchester and the statute of 3. Punishment by Ecclesiasticall laws H. 7. 1. This Act shall not extend to take away the authority and punishment of the Ecclesiasticall lawes standing in force for the punishment of any of the offences aforesaid But they shall be vsed in euerie thing as though this act had neuer ben made Whatsoeuer person offending in the premisses shal for any the offences afore recited receiue punishment of the Ordinary hauing Testimoniall thereof vnder the said Ordinaries seale shall not for the said offence eftsoones be conuicted before the Iustices Eté conuerso 27 To the intent vtterly to take away all quarreling brawling fraying and fighting openly in Churches and Churchyards by a statute made An. 5. 6. E. 6. it was ordained Sta. 5. 6. E. 6. 4 That if any person whatsoeuer doe by words only quarrell Chiding in a Church or Churchyard chide or brawle in any Church or Churchyard Then it shall be lawfull to the Ordinary of the place where the offence is done and proued by two lawfull witnesses to suspend him being a Layman ab ingressu Ecclesiae and being a clerke from the Ministration of his office so long as he thinketh méete Smiting in a Church or Churchyard according to the fault And if any person or persons shall smite or lay any violent hands vpon any other either in any Church or Churchyard then ipso facto euery person so offending shall be déemed excommunicat and be excluded from the fellowship and company of Christs congregation And if any person shall maliciously strike any person with any weapon in any Church or Churchyard Drawing or smiting with a weapon in a Church or shall draw any weapon in any Church or Churchyard to the intent to strike an other with the same weapon then euery person so offending and thereof being conuicted by verdict of xij men or by his owne confession or by two lawfull witnesses before the Iustices of assise Iustices of oyer and determiner or Iustices of peace in their sessions shall be adiudged by the same Iustices before whom such person shall be conuicted to haue one of his eares cut off And if the person or persons so offending haue none eares whereby they should receiue such punishment as is aforesaid Then he or they to be marked and burned in the chéeke with an hot yron hauing the letter F. whereby he or they may be knowne and taken for fray makers and fighters and besides that euery such person to be and stand ipso facto excommunicated as is aforesaid 28 As the law hath alwaies had a principall and most speciall regard that there should be no breach or disturbance of the peace to those persons places and tymes which be dedicated and deuoted to the seruice of God to the Ministration of his Sacraments and preaching of his worde So hath she a secondarie respect that the King the head of the Realme and chiefe fountaine of peace may haue tranquillitie and peace at the time and in the place where he doth rest and in person make his aboade whereupon by a Statute made Anno 33. H. 8. it was enacted Drawing of bloud within the Kings pallace That if any person shall maliciously strike any other person Stat. 33. H. 8. 12. whereby bloud shall be shed in any of the Kings houses or pallaces or in any other house where the Kings Maiestie his heires c. â—â—â—t be at that tyme abiding in his royall person viz. within any edifices courts places gardens orchards or houses within the Porters warde of any the houses aboue rehearsed or within any gardens priuy walkes orchards tilt-yards woodyards tennis playes cockfights bowling allies neare adioyning to any of the houses aforesaid and being part of the same or within 200. foote of the standard of any outward gate or gates of any of the said houses commonly vsed for passage from any of the houses c. and shall be thereof indicted arraigned and attainted according to the Statute in that case prouided he shall haue his right hand stricken off be imprisoned during his life and make fine to the King at his pleasure But this act nor the paines and forfaitures before rehearsed shall not extend to any Noble man or other person that shall strike his seruant within the said pallaces or houses or the limits of the same with his hand or fist or any small staffe or sticke for correction for any offence committed Nor to any of the Kings officers that in executing his office shall strike any person with his hand or fist or small staffe sticke or tipstaffe Nor to any other person that in doing seruice at any triumphe or any other time of seruice by the King or any of his Councell or other his head officers commaundement shall for the executing of his said seruice strike any person with his hand fist small staffe or sticke or any tipstaffe within the same pallace house c. although by reason of the same stroake or stroakes there happen to be any bloud shead of such person as shall be so striken except the person so stricken dye of the same stroake within one yeare next after Long time before the making of this statute King Alured ordeined a law
take into his or their hands or possessions all such copie customarie holds so holden of thē or any of thē immediatly to retain the same during only the life of such offēdor or offendors in such maner as he or they should haue had the rents or seruices of such copy or customary hold in case such person or persons so refusing had not refused A farmer required refuseth to serue 39 All euery farmer being a yeoman husbandman artificer or labourer 1. M. 12. beeing of the age of xviij yeares or more vnder the age of lx years not sick impotent lame maihemed nor hauing any other reasonable excuse or cause to the contrary being required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commissiō or letters c. they declaring their said authoritie or being required by their said Landlord or Landlords for the time being to whom the rents of such farmes shal be then rising growing or comming to serue the king for any the causes aboue rehearsed and refuse so to doe shall during only the life of such farmer or farmers so refusing forfeit and loose to such Landlord and Landlords as should haue had the rents of such farmer during the life liues of such person persons so refusing all their said farmes And it shal be lawfull to euery such Landlord c. their heires and assignes to whom the rents of such farmes should haue bin due during the life of such person or persons so refusing in case he or they had not refused to enter take into his or their hands or possessiō al such farms to retain the same only during the life of euery such offēdor or offendors But after the death expiration or determinatiō of the interest or terme of yeares of euery such copyholder customary holder or farmer as so shal offēd forfeit any of the said copi-holds customary holds or farmes as is aforesaid thē euery such person as should or ought to haue had the copy holds customary holds or farmes after or by the death expiration or determination of the interest or terme of years of such copie-holder customarie holder or farmer in case such copie-holder customarie holder or farmer had not so offended ne forfeited shall and may haue the same copie-hold customarie holds and farmes by entrie action admission or otherwise in like manner forme and condition and by such meanes as they and euery of them should might or ought to haue had if no such forfeiture or offence had bin had done or committed 40 If any person shal be spoken vnto moued 1. M. 12. or stirred to make any cōmotion Disclosing a commotion when one is moued insurrection or vnlawfull assembly for any of the intents aboue mētioned and doe not within 24. houres next after he shal be spoken vnto moued or stirred vnlesse he haue good and reasonable cause of excuse declare the same vnto one Iustice of the peace or Sherife of the said countie or to the Mayor Sherifes Bailifes or other head officers of any citie or town corporat where such commotion c. shall be had he shall suffer imprisonment by the space of thrée moneths without baile or mainprise vnlesse he shall be discharged by 3. Iustices of peace whereof one to bee of the Quorum of the same shire where the offence shall be committed 1. M 12. 41 If any person béeing aboue the age of eightéene yeares An able person required refuseth to serue and vnder the age of thréescore beeing able to serue and not sicke lame or impotent shall be required by any Iustice of peace or any Sherife of any Countie where any such assembly shall be or by any Mayor Bailife or other head Officer of any citie borough or towne corporat or by any other by the commandement of any such Iustice Sherife Maior c. to goe with him or them to suppresse the persons vnlawfully assembled in manner and forme aforesaid then euery person which so béeing able and required doth willingly and obstinately refuse so to doe shall suffer imprisonment for one whole yeare without baile or mainprise 1. M. 12. 42 If the King shall by his Letters patents make any Lieutenant in any Countie or Counties of this Realme Attendance vpon a lieutenant for the suppressing of any commotion rebellion or vnlawfull assemblie then as well all Iustices of peace and the Sherife and Sherifes of the same as all Maiors Baylifes and other head officers and all inhabitants and subiects of any Countie Citie Borough or towne corporat within euery such Countie shall vpon declaration of the said Letters patents and request made bee bound to giue attendance vpon the same Lieutenant to suppresse any commotion rebellion or vnlawfull assemblie vnlesse hee so required haue any reasonable excuse for his not attendance vpon paine of imprisonment for one whole yeare 1. M. 12. 43 The order and forme of the Proclamation that shall be made by the authoritie of this Act shal be as hereafter followeth The forme of the Proclamation or with the like order and words in effect viz. The Iustices or other persons authorized by this Act to make the said Proclamation shall make or cause to be made an Oyes and after that shall openly pronounce or cause to be pronounced these wordes or to the like effect The King our Soueraigne Lord chargeth and commandeth al persons being assembled immediately to disperse themselues and peaceably to depart to their habitations or their lawfull businesse vpon the paine contained in the act lately made against vnlawfull and rebellious assemblies And God saue the King 1. M. 12. 44 If any person or persons doe or shal molest let hinder Hinderance of the Proclamation or hurt any person or persons that shall proclaime or go to proclaime according to the proclamation and order aforesaid whereby such proclamation shal not be made then euery such person so molesting or hurting c. and hauing knowledge of his message shall incurre such daunger and suffer such paines and forfeitures the persons assembled to whom the proclamation should haue beene made should by this Act incurre for not obeying the Proclamation if it had béene made or for doing after the Proclamation of any the things before expressed And also all such persons beeing assembled to the number aforesaid to attempt or doe any the things aforesaid to whom Proclamation should or ought to haue beene made if the same had not beene let shall likewise in case they doe after put in vre and doe any the things aforesaid hauing any wayes knowledge of the let so made or by any meanes procuring the same let incurre like danger and suffer like paines and forfeitures aforesaid in euery their degrees as though the proclamation had beene made any clause article c. in this Act c. notwithstanding Other mens right saued 45 All
for commencing a wrong full suit for the law doth intend those suites to be pursued for vexation trouble and likewise in some other cases the def is amerced for the wrongfull detaining of that which is not his owne and for inforcing the plaintife by suit in law to séeke recouer his owne But as in all cases the vnlawfull maintainor of suits is in fault so is he in euery such case punishable For though the case of the plaintife or def which he vndertaketh to maintaine be iust and lawfull in him who prosecuteth or defendeth the suit whose the cause is yet in the maintainor it is vnlawfull for it is not his owne suit neither is it pursued or defended for the recouery or protection of that which he pretendeth to be due to himself and so in a sort he maketh complaint where he hath no wrong or maketh defence where none séeke to hurt him whereby opposing himselfe against others who do not contend with him he laboureth to disturbe the ordinary course of iustice and therewith to blemish the peace of the Realme for as it appeareth partly by the statute of Anno 1. Ed. 3. Sta. 1. E. 3. 14 and specially by the preamble of the statute of Anno 32. H. 8. St. 32. H. 8. 9 Nothing conserueth the people in more peace good concord then the due administration of iustice and the indifferent triall of titles and issues according to the Lawes of this Realme which being hindered letted by Maintenance Embracery Champertie Subornation of witnesses sinister labour and buying of titles there will of necessitie insue thereof great periurie vnquietnesse oppressions troubles wrongs and disheritances 2 And because this Maintenance is as an euill Trée hauing growne out of it many corrupt branches therefore the wisdome of the Realme hath frō time to time prouided seuerall statutes as it were sharpe hatchets to loppe or shred those boughes when they did spring and shoot out As King Ed. 3. Maintenance by men of authority perceiuing that his Counsellors Magistrates and Officers in his house certaine great men of the Realme by sending of Letters Messengers giuing of Liueries by other means did sollicite matters and maintaine quarrels and tooke parts in the Countrey St. 1. E. 3. 14 20. Ed. 3. 3. by a statute made Anno 1. of his raigne and another Anno 20. of his raigne did ordaine That common right should be done to all persons as well poore as rich and that none of his said Officers nor any Noblemen nor any other great or small should take vpon him to maintaine quarrels or to take parts to the let or disturbance of the common law Nor that any should take in hand or meddle with quarrels or questions but their owne And because there was no speciall punishment ordained by the said statute of Anno 1. Ed. 3. for those who should transgresse that Law therfore King R. 2. by a statute made in the first yeare of his raigne established St. 1. R. 2. 4. That if the kings Counsellors or great Officers should take vpon them to sustaine any quarrell by Maintenance in the Countrey or elsewhere he so offending should indure that paine which should be inflicted by the King himselfe by the aduice of the Lords of his Realme and other inferior officers and seruants of the Kings in the Exchequer and other Courts and his meniall seruants shall loose their offices and seruices and be imprisoned be ransomed at the kings pleasure euery of them according to his degrée estate and desert and all other persons of the Realme of what estate soeuer they be shal be imprisoned and ransomed as the other aforesaid St. 33. Ed. 1. 3 The statute intituled Definitio de conspiratoribus made Anno 33. E. 1. Maintenance by cōbination doth decypher another sort of Maintainors which there be called conspirators in this sort St. 1. R. 2. 7. viz. Conspirators be they that bind themselues by oath couenant or other alliance that euery of them shall helpe and sustaine the other falsely maliciously to indite or falsely to moue or maintaine pleas and also such as cause children within age to appeale men of felony whereby they are imprisoned sore grieued and such as retaine mē in the country with liueries or fées to maintaine their malicious enterprises and this extendeth aswell to the takers as to the giuers and stewards and bailifes of great lords Maintenance by noblemens officers which by their seigniorie office or power vndertake to vphold or maintaine quarrels pleas or debates that concerne other parties then such as touch the estate of their lords or themselues 4 There is also another kind of Maintenance which is called Champerty Maintenance by champerty and the offendors therin be called Champertors whom the foresaid statute of Anno 33. St. 33. Ed. 1. E. 1. doth define in this maner Who be champertors viz. Champertors be they that moue pleas and suits or cause to be moued either by their owne procurement or by others sue them at their proper costs for to haue part of the land in variance or part of the gaines which Champertors were accounted great maintainors of suits and professed enemies to peace whereupon it was ordained by the statute of West 1. St. 3. E. 1. 25. That no Officer of the Kings by themselues nor by other shall maintaine pleas suits or matters hanging in the Kings Court for Lands Tenements or other things for to haue part or profit thereof by couenant made betwéene them and he that doth shall be punished at the kings pleasure and after by the statute of Westm 2. St. 13. E. 1. 48 the same was expressed more at large by the which it was enacted That the Chauncellor Treasurer Iustices nor none of the Kings Councell no Clarke of the Chauncerie nor of the Exchequer nor of any Iustice or other Officer nor none of the Kings house Clarke nor Lay shall receiue any Church land nor tenement by gift in fée nor to farme nor for purchase nor otherwise so long as the thing is in plea in the Kings Court or before any of his Officers nor shall take reward therefore and hee that doth contrary to this Act eyther himselfe or by any other or make any bargaine shall bee punished at the Kings pleasure as well he that doth purchase as he that doth giue And because other Officers were not bound by the foresaid Statutes as well as the Kings and to the intent some certaine and more sharpe penaltie might bee imposed vpon the transgressor of the said statutes then before time had béene prouided Therefore by a statute made Anno 28. E. 1. St. 28. Ed. 1. 11. intituled Articuli super Chartas it was ordained That no Officer nor any other for to obtaine part of the thing in plea shall maintaine any matter that is in suit Nor none vpon such couenant shall giue vp his
or yeares of it and then doth assure it to the bargainée this is deceit and a writ of Deceit is maintenable against him for it for though he hath assured the land he hath not assured it clére and discharged according to his bargaine but hath deceiued the purchasor therein 11. E. 4. 6. 18 If a man doe sell a piece of cloth to another Deceit vpon a warranty and warrant it to be fortie elles long and it is not so long the buyer may haue a writ of Deceit against the seller of the same cloth by force of his warranty although the warranty be by word onely 6. Ed. 6. Dyer 76. without writing so that it be at the time of the bargaine made But if the warranty be at another time after the bargaine made then the buyer must haue some writing to testifie this warranty or otherwise hée shall not haue a writ of Deceit against the seller 9. Ed. 4. 13. Fit Nat. Br. 98. 19 If an action of Debt bee brought against two as executors Deceit by confession of an action brought against executors whereas one of them was neuer executor nor administrator and if he which is executor do make default he who was not executor doe appeare confesse the action he that was named executor may haue against the other an action of Deceit for he hath vndertaken to plead a plea to the action of debt which he could not doe and that also to the deceit and hurt of another 26. H. 8. 7. 20 If a man doe marry a wife possessed of goods Couin by aliening of his wiues goods those be the husbands to giue and dispose at his pleasure during the mariage betwéene them But if after they be diuorced the wife shall haue her goods againe vnlesse the husband hath giuen or sold them before the Diuorce for in that case the wife is without remedie And yet if the husband doe alien those goods by couin to the intent to defraud and defeat his wife of them and after they be diuorced then shee may auerre the couin and recouer the goods from the alienée 35. H. 6. 5. Co. lib. 3. 78 83. li. 5. 83. 21 Though buying of goods in an open marketh doth worke an alteration of the property of the same goods Sale of goods in opē market by couin and doth bind the Title as well of all strangers as of the owner if the goods be sold in such a shop or place as is commonly vsed for the selling of goods of the same kind or nature yet if one man do steale purloine or iniuriously take away another mans goods and then by couin betwéene him and a third person doth sell the same goods in an open vsual place of sale 7. H. 7. 12 in an open market or faire to the third person who at the time of buying of the same goods did know that the seller came not lawfully by them or that they were not his goods this is a void sale And in respect of this Couin the first and right owner of these goods may lawfully take and carrie them away notwithstanding the said sale in open market Fraudulent assurances to defeat the discontinuée in tayle 22 If the father being tenant in tayle of certaine lands M. 34. E. 1. Fitz. Garrantie 88 will make a feoffement thereof to another with warrantie and so discontinue the estate taile hauing assets of other lands in fée simple to leaue to discend to his son and heire and then within few dayes before his death will alien the same fée simple land to his sonne and heire and to his heires vpon couin and to the intent that the same fee simple land should not be pleaded to come by discent from the sayd father to his sonne nor adiudged as Assets by discent in his hands yet this couin being found by verdict in a writ of Formedon brought against him by the heire of the land entailed shall giue the discontinuée aduantage to plead that the same heire had assets by discent in fee simple left him by his said father for that the law doth adiudge this alienation made by the father to the sonne a little before his death by couin to defraud the discontinuée of his lawfull plea to be as no alienatiō but that the father dyed seised of the same fée simple land and that it came to his sonne and heire by discent 23 Because Lords of Mannors lands and tenements haue as great right to enioy the wardship of the bodies and lands of their wards Fraudulent conueyance to defeat a Lord of his wardship as they haue to their other inheritances lands and goods and it is as great an iniury to deceiue them thereof by couin and collusion as to defeat and defraud them of their other lawfull titles therefore by a statute made at Marlebridge anno 52. H. 3. it was enacted That if any man do enfeoffe his eldest sonne or heire St. 52. H. 3. 6 being within age of his inheritance that therby the Lord might loose his wardship yet notwithstanding such feoffement the chiefe Lord shall haue his wardship And by the said statute it was further ordained That if any persons meaning to demise their lands for terme of certaine yeares that they might thereby defeat the Lords of the fee of their wardships will faine false feoffements containing that they are satisfied of the whole seruice due vnto them vntill a certaine terme and that such feoffées are bound to pay at the said term a great summe to the value of the same lands or much aboue so that after the said terme the land shall reuert to them or their heires for that no man wil desire to hold the same of so great a price yet by such fraud no chiefe Lord shall loose his wardship And if the chiefe Lords do by iudgement of the Court recouer their wardships yet the feoffees shall haue their action reserued to recouer their terme or fée when the heires shall come to their lawfull age And for the further preuention of couin in auoiding of wardships by one other stat made anno 34. H. 8. it was ordained St. 34. H. 8. 5 That if any person or persons hauing estate of inheritance of or in any Mannors lands tenements or hereditaments holdē of the king by Knights seruice in chief or otherwise of the king by Knights seruice or of any other person or persons by Knights seruice haue giuen at any time since the 20. day of Iuly anno 32. H. 8. anno Dom. 1540 or hereafter shall giue will deuise or assigne by will or other act executed in his life his mannors lands tenements or hereditaments or any of them by fraud or couin to any other person or persons for terme of yeares life or liues with one remainder ouer in fee or with diuers remainders ouer for terme of yeares life or liues with one Remainder ouer in fée simple to
That all recoueries to be had or prosecuted by agreement of the parties Recoueries against particular tenants by Couin to defraud him in the reuertion or by Couin against any tenants by the Curtesie of England Tenants in taile after possibilitie of issue extinct or otherwise onely for the terme of life or liues or of estates determinable vpon life or liues of any lands Tenements or hereditaments whereof the same particular Tenant is or shal be seised of any such particular estate as is aforesaid or against any other with Voucher ouer of any such particular Tenant or of any hauing or that had right or title to any such particular estate or tenancie as is aforesaid shal as against such person or persons to whom any reuersion or remainder thereof by force of any Conueyance or deuise before that time had or made shall ought or lawfully may appertaine and against their heyres and successors be vtterly voide Prouided alwaies that this Act shall not extend to any person or persons that shall by good title recouer any lands tenemēts or hereditaments without fraud or Couin by reason of any former right or title But al euery such recouerie and recoueries vpon former rights and titles shall stand and be in like force as they were before the making of this Acte And in all and euerie recouerie and recoueries to be had or prosecuted of any lands tenements or hereditaments by the assent and agreement of any person or persons to whom any reuersion or remainder thereof then shall or ought to appertaine so that the same assent and agréement doe appeare of record in any of the Kings Courts shall stand in like strength and of like effect against such person and persons that shal so assent and agree their heyres successors as they were before the making of this act 27 And for that Couin and fraud should be restrained and punished when it shall be put in practise or intended by those in reuersion to defeate their Lessees of their termes for yeares as it was by the aforesaid Statutes when it was executed by particular Tenants to the preiudice or disheritance of them in the Reuersion Couin by him in the reuersion to defeate his Lessee for yeeres Therefore by a Statute made Anno 21. H. 8. Stat. 21. H. 8. 15 Stat. 6. E. 1. 11. it was enacted That if any persons doe make leases of their lands tenements or other hereditaments by Indentures or without writing to other persons for terme of yeares if after the same Lessors their heires or assignes do cause or suffer recoueries to be had against them in the Kings or any other Lordes Court vpon fained and vntrue title by craft and Couin to put the said Termors from their Termes all such Termor shall and may falsifie for his terme only such recouerie in such wise and forme as a tenant of fréehold shall may doe by the course of the cōmon law where such tenant was neither priuie nor party to such recouerie And the same Termors their Executors assignees notwithstanding such recouerie so had shall enioy retaine and hold their said termes according to their said leases against all such recouerors their heyres and assignees And the said recouerers their heyres and assignees after such recouerie so had shal haue like remedy against the said termors their Executors and assignees by auowrie or action of debt for the rents and seruices reserued vpon the same leases being due after the same recoueries also like actions against them for waste done after the same recoueries so had in like manner and forme as the said Lessors should or might haue had if the same recoueries had neuer beene had No manner of Statute of the Staple Couin to auoide a Statute or recognisance statute marchant nor execution by Elegit shal be auoided by meanes of any such feyned recouerie but all persons hauing any lands tenements or other hereditaments in execution or being intituled to haue execution of any lands or tenements by any such meanes shal haue like remedie to auoide and falsifie the same recouerie as before is prouided for the lessee for terme of yeares 28 There haue beene many lawes and Statutes deuised from age to age to restraine and punish seueral sorts of deceits Couins collusions and frauds but most to encounter and checke fraudulent deeds cōtriued of malice or guile to defeate Stat. 50 Ed. 3. 6. 1. R. 2. 9. 2. R. 2. 3. 3. H. 7. 4. 13. El. 5. 27. El. 4. delay or hinder others of their lands leases goods cattels debts c. as it appeareth by the statute made A. 50. Ed. 3. 1. R. 2. 2. R. 2. 3. H. 7. 13. El. 27. El. But as deceit and fraud increased in this realme so new penalties and greater punishments were inuented from time to time to inflict vpon the transgressors therin And because fained couenous and fraudulent Feoffmēts gifts graunts alienations conueyances bonds sutes iudgements executions of lands and tenements goods and cattels being deuised of Couin guile to defraud creditors and others of their iust and lawful actions dets c. be not only to the let of the due course and execution of law iustice but also to the ouerthrow of all true and plaine dealing bargaining and cheuisance betweene man and man without the which no common weale or ciuill societie can bee maintained or continued Therefore by a Statute made A. 13. El. it was enacted Stat. 13. El. 5 Stat 29. El. 5. That all and euery Feoffment gift graunt bargaine alienation Fraudulent deeds to auoide other mens debts and duties and conueyaunce of lands tenements hereditaments goods cattels or of any of them or of any lease rent common or other profite or charge out of the same lands hereditaments goods c. or any of them by writing or otherwise And all and euery bond sute iudgement and execution at any time had or made sithence the beginning of Queen Elizabeths raigne or at any time hereafter to be had or made which haue beene and are deuised contriued of malice fraud couin collusion or guile to the intent c. to delay hinder or defraud creditors others of their iust lawfull actions sutes debts accompts damages penalties forfeitures hariots mortuaries or reliefes shal be taken deemed onely as against that person his heires executors successors or assignes whose actions sutes debts accoūts c. by such guileful couenous or fraudulēt deeds deuises practises as is aforesaid are shall or mought be in any wise disturbed hindered delaied or defrauded to be cléerly void of none effect any colour fayned cōsideration expressing of vse or any other matter to the cōtrary notwtstanding And al euery the parties to such fained or fraudulēt feoffment gift graunt alienation bargaine conueyance bond sute iudgement execution Parties to fraudulent deedes c. or being priuie and knowing of the same or any of them which
yeare vnder their couent seales within one yeare next before the making of the said act should be vtterly void St. 31. H. 8. 13 And by a like statute made Anno 31. H. 8. it was ordayned That all leases of lands tenements or other hereditaments not vsually let leases of lands c. in reuersion leases of lands c. not reseruing the old and accustomed rent sales of wood assurances of lands of the kings gift or auncient foundation without the kings licence made by any abbots or gouernours of any Monasteries or other religious houses which were before the making of the said act dissolued within one yeare before the comming to the K. hands of the same Monasteries religious houses c. or which after that should bee dissolued or come to the kings hands should be vtterly void for the same leases sales of wood and assurances were intended to be made by fraud to deceiue the king of certaine commodities which the makers of that statute did meane and intend to giue him 40 Where maidens and women children of noblemen gentlemen and others as well such as were heires apparant to their auncestors as others hauing left vnto thē by their father or other auncestor friends lands tenemēts hereditaments or other great substance in goods cattels moueable for and to the intent to aduaunce them in marriage somewhat like according to their degrées and as might be most for their surety comfort as wel for themselues as of all other their friends kinsfolks were ofttimes vnawares to their said friends or kinsfolkes by flattery trifling gifts faire promises and other such deceitfull fraudulent practises of many vnthrifty light persons therunto by the intreaty of lewd persons others that for rewards bought and sold the said children secretly allured and woon to contract matrimonie with the said vnthrifty light persons and thereupon either with sleight or force oft times were taken conueyed away from their said parents friends or kinsfolkes to the displeasure of God disparagement of the said children continuall heauinesse of all their friends For the redresse and preuention wherof by a statute made Anno 4. St. 4. 5. P. M. 8. 5. P. M. it was enacted Deceitfull conueying a maid inheritable vnder xvj yeares of age That it shall not be lawfull to any person or persons to take or conuey away or cause to be taken or conueyed away any maid or woman child vnmaried being within the age of xvj yeares out of or from the possession custodie or gouernance and against the will of the father of such maid or woman child or of such person or persons to whom the father of such maid or woman child by his last Will or by any other act in his life time shall assigne bequeath giue or graunt the order kéeping education or gouernance of such maid or woman child except such taking conueying away as shal be had made or done by or for such persō or persons as without fraud or couin then shal be the master or mistresse or the gardian in socage or gardian in chiualry of or to such maid or woman child St. 4. 5. P. M. 8. If any person or persons aboue the age of xiiij yeares shal vnlawfully take or conuey The forf for taking away a maid vnder 16 yeares of age or cause to be taken or conueied any maid or woman child vnmaried being within the age of xvj yeares out of or from the possession against the will of the father or mother of such child or out of or from the possession of such person or persons as then shall haue by any lawfull wayes or meanes the order kéeping or education or gouernance of any such maid or woman child then euery such person persons so offending being thereof lawfully attainted or conuicted by the due course of the law of this realme other then such of whō such person taken away shall hold any lands or tenements by knights seruice shal be 2. yéeres imprisoned of his or their bodies without baile or mainprise or els shall pay such fine for his or their said offence to the Q. and party grieued as shal be assessed by the Q. counsell in the starre chamber at Westminster If any such person or persons shall so take away St. 4 5. P. M. 8. or cause to be taken away as is aforesaid Taking away deflouring or cōtracting matrimony with a woman c. and defloure any such maid or woman child as is aforesaid Or shall against the will or vnknowing of or to the father of such maid or woman child if the father be in life or of or to the mother of such maid or woman child hauing the custody gouernance of such child if the father be dead by secret letters messages or otherwise contract matrimony with any such maiden or woman child except such contracts of matrimony as shal be made by the cōsent of such person or persons as by the title of wardship shall then haue or be intituled to haue the mariage of such maid or woman child then euery such person or persons so offending being thereof lawfully conuicted as is aforesaid shall suffer imprisonment of his or their bodies by the space of fiue yeares without baile or maineprise or els shall pay such fine for his or their offence to the Quéene and party grieued as shal be assessed by the Quéenes Counsell in the Starre-Chamber The Quéenes Counsell of the Starre-chamber by bill of complaint or information Who may hear and determine these offences and Iustices of Assise by inquisition or indictment St. 4 5. P. M. 8. haue authority to heare and determine the said offences vpon euery which indictments and inquisitions such processe shall be awarded as vpon an indictment of Trespas at the common law If any woman child or maiden being aboue the age of xij St. 4 5. P. M. 8. yeres and vnder xvj A woman consenting to an vnlawfull contract doe at any time cōsent to such person that so shall make any contract of matrimonie contrary to the forme and effect of this statute then the next of her kinne to whom the inheritance should returne or come after her decease shall from the time of such assent haue and enioy all such lands tenements and hereditamēts as she had in possession reuersion or remainder at the time of such assent during the life of such person that so shall contract matrimony and after the decease of such person so cōtracting matrimony thē the said lands shall discend reuert remaine and come to such person or persons as they should haue done in case this act had neuer béen made other then to him onely that so shall contract matrimony But this act shall not extend to take away or diminish any liberty custome St. 4 5. P. M. 8. or authority cōcerning any
be adiudged to the pillory the third time he shal be imprisoned make fine the fourth time he shall forsweare the towne And in this manner shal it be done of all that offeÌ„d in like case as of cookes that séeth flesh or fish any waies that is not holesome for mans body or after that they haue kept it so long that it looseth the naturall holesomenesse then séeth it againe and sell it And in like sort St. 39. El. 10 by one other statute made An. 39. El. it was enacted That if any alien or stranger born or any denizen or naturall born subiect of this realme shal bring into any hauen port créeke or town of this realme any salt fish or salt herrings which shal not be good swéet seasonable méet for maÌ„s meat shal offer the same to be sold and shall be warned by any officer of such Port c. where the same shal be offered to be sold that the same be not seasonable nor méet for mans meat Then if he or they shall after that offer any of the said vnseasonable fish to be sold to any person within this Realme or being an alien borne and no denizen shall not depart with the same from the said Hauen Port or Towne so soone as conueniencie will serue Then all and euery person owners therof shall forfeit to the Queen all the said vnseasonable fish vnméet for mans meat as is aforesaid And by a statute made Anno 4. Ed. 3. it was established St. 4. E. 3. 12 That assay shall be made of wines twice euery yeare once at Easter and another time at Michaelmas and more oft if néed be by the lords of the Townes and their Baylifes and also by the Mayors and Baylifes of the same townes and all wines that be found corrupt shal be powred out and the vessels broken ⧠Extortion Exaction 1 EXtortion is a wrong done by an Officer What is Extortion as Ordinarie Archdeacon Officiall Maior Bailife Shirife Escheator Coroner Vndershirife Auditor Receiuer Clerke or other Officer or by any other by colour of an office in taking of an excessiue reward or fée and more then the law doth allow him for execution of his said office which offence in some degrées is worse then the priuy picking of a mans purse in secret and the transgressor in a sort may be compared to the Fréebooter which with drawne sword and with menacing words assaulteth the trauailer by the way who casteth down his purse to him for feare of further hurt And so is the poore sutor many times inforced to doe to the Officer when of necessitie he must vse his helpe It is a thing most odious and offensiue to the iustice and peace of the Realme and to all the members thereof that those men who be specially made choice of and principally selected to serue their prince and countrey and to further the execution of iustice in their offices and places and be sufficiently rewarded with conuenient stipends for their paines therein should in contempt of the law assesse their owne fées in a sort put their hands in other mens purses and there take what they will and thereby doe wrong vnder the colour and shadow of iustice Exaction is a wrong done by an officer What is Exaction or by one pretending to haue authoritie in demaunding and taking reward or fée for that matter cause or thing which the law doth allow no fée at all And as our common statute lawes haue declared which offences or acts they doe condemne and adiudge as Extortions and Exactions so haue they prescribed in most cases seuerall penalties to be inflicted vpon the seuerall transgressors therein leauing the residue to be punished at the kings pleasure or by the discretion of such of his Iudges Iustices or others by his commission authorized before whom the offendors shall be thereof conuicted And further our said statute lawes haue set downe for the most part what fées or duties the sutor ought to pay to the officer the officer is to demaund of him to the intent that the one shall not be ignorant what to offer nor the other what to require and to the end that the Law hauing written it in a sort in the officers forehead what his duty is he may blush when he looketh in the sutors face and demaundeth more 2 I will begin with an Exaction that no former generation did tast of heare of or feare but it hath sprung vp of later yeares bin greatly exclaimed of and condemned in this our present age which is taking of money or some other reward for a Report or Certificat wherein the offendor most commonly doth a double iniury and to two seuerall persons viz. first to him whose mony fee or other reward he taketh for the fauourable making of that report in his behalfe whereas the law doth allow him none for reporting but otherwise bountifully rewardeth him for that and all such other paines and next and chiefely to him in preiudice of whom or whose case he maketh that report He doth not now indifferently respect the cause in question but bendeth his eye vpoÌ„ the reward which he hath receiued and deuiseth to accomplish the request of the one and yet to yéeld to the other not the effect but some colour of iustice The King at his coronation doth promise to all his subiects Mag. Chart. St. 9. H. 3. 29 Quod nulli vendemus nulli negabimus aut differemus iusticiam whereupon the whole realme did take it vnkindly at their hands who being the kings Substitutes in place of iustice and receiuing but a small particle of his authoritie would doe then all the said offences at once and sell denie and deferre iustice to some of the kings subiects certifie that for good which was bad or that for iustice which was méere iniurie Or if they did make report and certificat of that which was iust and true would sell it and take money or other reward for it which the king himselfe vpon his oath refuseth to doe And therefore because all exâ—â—tions extortions and corruptions be odious as well in this as in all other well gouerned Commonweales and to the intent to preuent the like enormities in this and other ages by a statute made Anno 1. Iacob it was enacted St. 1. Iac. 10 That no person to whom any order or cause shal be committed Exaction by taking or reward for a report or referred by any of the Kings Iudges or Courts at Westminster or any other Court directly or indirectly or by any act shift colour or deuice haue take or receiue any money fée reward couenant obligation promise agréement or any other thing for his report or certificat by writing or otherwise vpon paine of forfeiture of one hundred pounds for euery such report or certificat and to be depriued of his office and place in the same Court The one moitie to be to the king his
prices or the buying of anie dried or salted fish herring or sprats not forestalled and solde for reasonable prices or the buying of any corne fish butter or chéese by any such Badger lader kidder or carier as shall be assigned and allowed to that office or doing by thrée Iustices of Peace of the Countie where the said badger lader kidder or carier shall dwell which shall sell and deliuer in open faire or market or to any other victualler or to any other person or persons for the prouision of his or their house or houses all such corne graine butter and chéese as any such person shall buy or cause to be bought and that within one moneth next after he shall so buy any such corne graine butter or chéese so that the same shall be bought without forestalling or else that any such common prouision made or héereafter to be made without fraud or couin by any person or persons of any of the things abouesaid for any citie borough or towne corporat or for the prouision or victualling of any ship castle or fort within the kings dominions without forestalling which shall be imployed onely to that vse and purpose or the buying and prouision of any of the victualls aboue mentioned necessary for the furniture and prouision of the inhabitants or of the towne of Barwicke Holy Island or the Marches of England against Scotland which without fraud or couin shall be transported and conueied as soone as winde and weather may serue to such of the places aforesaid for the which the same shall be so prouided shall not be in any wise deemed adiudged or taken any offence contrarie to this Act. If any person or persons hauing sufficient corne and graine for the prouision of his or their owne house or houses St. 5. 6. Ed. 6. 14. and sowing of their grounds for one yeare doe buy any corne in any faire or market Buying of corne for the change of seede for the change of his or their séede and do not bring to the same faire or market the same day so much corne as he shall fortune to buy for his seede and sell the same if he can as the price of corne then goeth in the said market or faire then euery such person or persons so buying corne for séede shall forfeit and loose the double valew of the corne so bought If any person or persons shal buy any manner of oxen ronts stieres kine heifers St. 5. 6. Ed. 6. 14. calues shéepe lambs goats or kids liuing Buying and selling of cattell aliue and sell the same againe aliue vnlesse he or they do kéepe and féede the same by the space of fiue wéeks in his or their owne houses ground farme ground or else in such ground or grounds where he or they haue the herbage or common of pasture by graunt or prescription then euery person and persons so buying and selling againe shall loose the double valew of the cattell or things so bought and sold againe The moitie of all which forfeitures afore rehearsed shall be to the King and the other moitie to him or them that will sue in any of the Kings Courts of Record by B.P.A. or I. c. in the which no W.E.P. c. The Iustices of peace in euery County within this Realme or Wales at their quarter Sessions St. 5. 6. Ed. 6. 14. shall haue full power and authoritie by vertue of this Act to inquire heare and determine all and euery the defaults and offences The authoritie of Iustices of peace committed or done contrary to this Act within the County where any such Sessions shall be kept by Inquisition presentment bill or information before them exhibited by examination of two lawfull witnesses or by any of the same waies or meanes by the discretion of the said Iustices and to make processe thereupon as though they were indicted before them by Inquisition or by verdict of twelue men or more and vpon the conuiction of the offendor by information or sute of any other than the King to make extracts of the one moity of the forfeitures to be leuied to the Kings vse as they vse to doe of other fines issues and amerciaments growen in the Sessions of peace and to award execution of the other moity for the complainant or informer against the offendor by Fieri facias or Capias as the Kings Iustices at Westminster may doe and vse to doe And if any such conuiction or attainder shall héereafter happen to be at the Kings sute onely then the whole forfeitures to be extracted and leuied to the Kings vse onely Whatsoeuer person shall at anie time heereafter be punished by vertue of this Act But once punished for one offence for any thing mentioned in this Act then the same person shall not otherwise be vexed troubled sued or put to any paine or punishment for that one thing wherefore hée or they shall haue béene so punished Prouided alwaies St. 5. 6. E. 6. 14. that it shal be lawfull to euery person or persons which shal be assigned and allowed by thrée Iustices of the peace of the county where he shall dwell Transporting allowed by Iustices of peace thereunto to buy otherwise than by forestalling corne graine or cattell to be transported or carried by water from any port or place within the said Realme or Wales vnto any other port or place within the saide Realme or Dominions if he or they shall without fraud or couin shippe or imbarke the same within fortie dayes next after he or they shall haue bought the same or taken couenant or promise for the buying thereof and with such expedition and diligence as winde and weather shall serue to carrie and transport the same to such port or place as his or their cockets shall declare and there doe dis-barke vnlade and sell the same and doe bring a true certificat thereof from one Iustice of peace of the County or maior or bailife of the towne corporat where the same shall be vnladen and also of the Customer of the port where such vnlading shal be of the place and day where the saide corne or cattell shall be disbarked vnladen and solde to be directed vnto the Customer and Comptroller of the port where the same was imbarked At all times when wheate shall be commonly at the price of sixe shillings eight pence the quarter When corne may be ingrossed or vnder St. 5. 6. E. 6. 14. mault and barley at thrée shillings foure pence the quarter or vnder otes or otes maulted at the price of two shillings the quarter pease or beanes at the price of foure shillings the quarter or vnder and rie or mescelin at the price of fiue shillings the quarter or vnder all which quarters shall be intended to be of London measure then it shall be lawfull to euery person and persons not forestalling to buy ingrosse and keepe in his or their
grainers or houses such corne of the kindes aforesaide as without fraud or couin shal be bought at or vnder the prices before expressed any thing in this Act to the contrary notwithstanding Prouided alwaies that this Act Within what time the sute shal be commenced or any thing therein contained extend not to charge any person or persons for any the offences aboue mentioned vnlesse he or they be sued for the same within two yeares next after such offence done or committed 5. 6. Ed. 6. 14. Prouided alwayes that it shall be lawfull to euery of the kings subiects now dwelling inhabiting Buying and selling of fish neere the sea or that héereafter shal dwel and inhabite within one mile of the maine Sea to buy all manner of fish fresh and salted not forestalling the same to sel the same againe at reasonable prices this Act or any thing therein contained to the contrarie in any wise notwithstanding Prouided also Drouers licenced may buy and sell cattle that it shall be lawfull to all and euery person and persons knowne to be a common Drouer or Drouers being licenced or authorized and allowed in writing by thrée Iustices of peace whereof one to be of the Quorum of the Countie or Counties where the same Drouer or Drouers shall be most abiding and dwelling to buy cattell in such Shires and Counties where Drouers haue béene wont in times past accustomably to buy cattell at their frée liberties and pleasures and to sell the same as is aforesaid at reasonable prices in common faires and markets distant from the place or places where he or they shall buy the same fortie miles at the least so that the same cattell be not bought by the way of forestalling Prouided alwaies that such licence of the Iustices of the Peace shall not endure aboue one yeare The continuance of a licence vnlesse the same be yearely renewed by so many Iustices as is aforesaid St. 5. El. 12. 12 Because since the making of the foresaid Statute of An̄ 5. 6. Ed. 6. diuers persons by their owne sute were licenced to become drouers of cattel badgers laders kidders cariers buiers or transporters of corne graine butter and chéese thereby to liue easily and to leaue their honest labour in husbandry or manuall occupations and also to inhaunce the prices of corne graine and other victualls Oppression by badgers kidders laders cariers by which meanes they oppressed the common-wealth only to procure vnto themselues both wealth and ease for the redresse whereof by a Statute made Anno 5. Eliz. it was enacted That if anie licence shall be made to any badger lader kidder or carier of corne drouer of cattell buyer or transporter of corne and graine butter or chéese otherwise than in the generall and open Quarter Sessions of the peace holden in the shire where the partie admitted doth Obseruations necessarie in all licences and by the space of thrée yeares before the Teste of his Licence hath dwelled Or other than to such person as is or hath béene married is a housholder no houshold seruant or retainer thirtie yéeres of age at the least Or to haue continuance for more than one yéere or which beareth not date the day and place where the Sessions be holden Or is not signed and sealed with the handes and seales of thrée Iustices of peace being present at the same Sessions at the least whereof one to be of the Quorum the same Licence shall be voide And the party which taketh the same shall forfeit fiue pounds And no person shall vpon the paine of the forfeiture of fiue pounds by the authoritie of such Licence buy any corne out of open faire or market to sell the same againe except he be thereunto specially licenced by expresse words in his licence The moitie of which forfeitures shall be to the Q. her heires and successors and the other moitie to him or them that will sue for the same in any of the Q. Courts of Record by B.P.A. or I. wherein no W.E.P. c. But this Act shall not extend to preiudice the liberties of any citie or towne corporat but euery of them may lawfully assigne and licence Purueiors for the prouision of the same citie or towne as they might haue done before Neither shall this Act be preiudiciall to the Inhabitants within the Counties of Westmerland Comberland Lancaster Chester Yorke or any of them but they may doe as they haue vsed to doe And the Iustices of peace in euery Countie within this Realme or Wales shall haue authoritie to inquire heare and determine all offences committed contrary to this statute by inquisition presentment bill or information before them exhibited and by examination of two lawfull witnesses and to make processe thereupon as though they were indited by inquisition or verdict c. Oppression of Printers and Stationers 13 Though by the Statute of Anno 1. R. 3. St. 1. Ri. 3. 9. licence was giuen to aliens and strangers to bring books into this Realme and to sell and retaile them at their liberties for that there were then few Printers or skilfull binders of bookes within this Realme But séeing since there haue béene and are many expert and cunning Printers and skilfull binders of bookes within this Realme who haue wholly addicted themselues to the saide trades and made it their whole or chiefe liuing and therefore to bring into this Realme anie printed bookes bound or for any stranger to bring bookes into this Realme to be by them sold by retaile were a great oppression and preiudice to the Stationers and also the same bookes would be so much the dearer and so hurtfull to others who should buy those of them Therefore by a Statute made Anno 25. Oppression by Printers or Stationers H. 8. it was ordained St. 25. H. 8. 15. That if any person resiant or inhabitant within this realme shal buy to sell againe any printed bookes brought from any parts out of the Kings obedience ready bound in boords leather or parchment hée shall forfeit for euery booke bound out of the Kings obeisance and brought into this Realme and bought by any person within the same to sell againe vj. s̄ viij d to the King and the party that wil seise or sue for the same in any of the Kings courts of Record by B.P.I. c. wherein no W.E.P. c. And if anie person inhabitant or resiant within this realme shall buy within this realme of any stranger borne out of the kings obeisance other than of denizens any printed bookes brought from any parts beyond the sea except only in grosse and not by retaile he shal forfeit for euery booke so bought by retaile vj. s̄ viij d to the King and the party that wil seise or sue for the same in any of the kings courts of Record by B.P. or I. c. wherein no W.E.P. c. The said forfeitures to be
Striking in Westminster Hall 27 And the same Law is Fitz. Cor. 280. M. 2. 3. P. M. Dy. 188. if one strike another in Westminster Hall during the time that the Kings Courts be sitting there and be indicted thereof this is misprision of Treason and an indignitie offered to the Magistrates and place of iustice Therefore in this case the offender shall haue iudgement to haue his right hand cut off to loose his lands and goods and to be perpetually imprisoned Reâ—scuing a prisoner arrested by a Iudge 28 If one of the Kings Iustices assigned M. 22. Ed. 3. 13. doe arrest any person which hath made a fray before him and a stranger will rescue the prisoner whereby he doth escape this is misprision of Treason and in this case as well the prisoner as he that made the rescous shall forfeit to the King his landes and goods and be imprisoned during their liues Because the attachment of such a Iustice is the Kings owne attachment in the construction of Lawe 29 Because striking in the Kings pallace or where he shall remaine in person is a kinde of disgrace offered vnto or contempt had of the maiestie of the king who is the head of the common wealth and the chiefe preseruer of peace therein and therefore it is to be accounted a great Misprision and worthy of seuere punishment wherefore for the preuention thereof Shedding of blood within the kings palace by a Statute made Anno 33. St. 33. H. 8. 12. H. 8. 12. it was established That if any person or persons shall malitiously strike any other person whereby blood shall be shedde in any of the Kings houses or Palaces or any other house wherein the king his heires or successors shall bee at that time abiding in his royall person viz. within any edifices courts places gardens orchards or houses within the Porters ward of any of the houses aboue rehearsed or within any Gardens priuie walkes orchards tilt-yards wood-yards tennice-plaies cocke-fights bowling alleyes néere adioyning to the said houses and béeing part of the same or within two hundred foot of the Standard of any outward gate or gates of any of the said houses commonly vsed for passage from any of the houses c. and shal be thereof indicted arraigned and attainted according to the forme of the said Statute he so offending shall haue his right hand cut off bee imprisoned during his life and make fine to the King at his pleasure But this Act and the paines and forfeitures before rehearsed shall not extend to any Noble man nor other person that shall strike his seruant within the said Palaces or Houses or the limits of the same with his hand or fist or any small staffe or sticke for correction for any offence committed Nor to any of the Kings officers that in execution of his office shall strike any person with his hand fist or small staffe sticke or tipstaffe Nor to any other person that in doing seruice at any triumph or any other time of seruice by the Kings or any of his Councel or other his head officers commandement shal for the execution of his said seruice strike any person with his hand fist smal staffe or stick or any tipstaffe within the same palace house c. although by reason of the same stroke or strokes there happen to bée any blood-shed of such person as shal be so stricken except the person so stricken die of the same stroke within one yeare next after And so it is to be noted by the foresaid Statute of 33. H. 8. and the foure cases next precedent that striking in the Kings Palace or House where himselfe doth make his abode is not so penall as striking or drawing a weapon to strike is where he is but represented by others in time and place of Iustice for the law doth inflict a more seuere punishment vpon him who striketh or draweth his weapon to strike in place time of execution of Iustice than it doth to him who offereth the like violence in the house and at the time where the kings owne person is remaining In which case the offendor receiueth no punishment at all for striking or drawing of his weapons to strike vnlesse blood be shed thereby Which lawes doe procéed of the great care and reuerend respect that is had of Iustice and of peace ensuing thereof 30 For as much as some doubts and questions were mooued that certaine kinds of Treasons Misprisions and concealements of Treasons committed out of this Realme could not by the common lawes of this Realme be enquired of heard and determined within this Realme of England for a plaine declaration whereof St. 35. H. 8. 2 26. H. 8. 13. 5. Ed. 6. 11. by a Statute made Anno 35. H. 8. it was enacted That all manner of offences béeing alreadie made or declared or hereafter to bee made or declared to be Treasons Misprisions of Treasons or concealements of Treasons and done perpetrated or committed by any person or persons out of this Realme of England shal be enquired of heard and determined before the Kings Iustices of his Bench for pleas to be holden before himselfe Trial of treasons committed out of the Realme by good and lawfull men of the same shire where the said Bench shall sit and bée kept or else before such Commissioners and in such shire of the Realme as shall be assigned by the Kings Commission and by good and lawfull men of the same Shire in like manner and forme to all intents as if such treasons c. had béene committed in the same shire where they shall be so inquired of heard and determined as is aforesaid And if any Péere of this Realme shall be indicted of any such Treasons c. then he shall haue his triall by his Péeres c. Which foresaid Statute of Anno 35. H. 8. remaineth in force notwithstanding the Statute of Anno 1. 2. P. M. 10. By which it is ordered h. 13. El. Dyer 298. That all Trials had awarded or made for any Treason shall bee had and vsed onely according to the course of the common lawes of this Realme and not otherwise Outlawrie of offendors in Treason beeing beyond Sea 31 By a branch of a Statute made Anno 26. H. 8. it was ordained That all Proces of Outlawrie to be made within this Realme against any offendors in Treason being resiant or inhabiting out of this Realme or beyond the Sea at the time of the Outlawrie pronounced shal be as good and effectuall in the law to all intents as if any such offendors had béene resiant within this Realme at the time of such Proces awarded Outlawrie pronounced And after by a Statute made Anno 5. E. 6. it was conditioned and prouided St. 5. E. 6. 11. That if the partie so outlawed shall within one yeare after the said Outlawrie pronounced or iudgement giuen thereupon yéeld himselfe to the chiefe Iustice
his life and safetie is oppressed therewith and dieth Or where two men doe run at Tilt Iust or fight at Barriers together by the Kings commandement and one of them doth kill another in these cases the like the offēces shal be adiudged as homicide by misaduēture P. 11. H. 7 33. But if a mā being in doing of an vnlawful act as casting of stones into a high way where men doe vsually passe or shooting of arrowes into a Market or other place whither men doe vsually resort or fighting at Barriers or running at Tilt or Iustes with others without the kings commandement P. 11. H. 7. 23 whereby a man is slaine in these last specified cases it is felonie at the least viz. manslaughter if it be not murder for the offendor beeing doing of an vnlawfull act by his owne will the law will construe his meaning and will therein by the successe of the act As if two men be fighting together and a third man commeth to part them he is slaine Fitz. Cor. 262. 22. Ass p. 71 by one of those two without any malice prepenced or euill intent in him that slue him this is murder in him that killed him and not Homicide by misaduenture because they both that fought together were doing of an vnlawfull act And if they both that did fight together 2. 3. P. M. Dyer 128. came thither with malice prepenced one intending to kill the other then is it murder in them both The like order in misaduenture as in his owne defence 20 The same order shal be obserued in the pleading verdict forfeiture and pardon of one which killeth another by misaduenture as shal be of him who slayeth another in his owne defence St. 6. Ed. 1. 9 And the before rehearsed Statute of Gloucester shall extend as well to the one as to the other Homicide by murder or manslaughter 21 Homicide by murder is when one man vpon malice prepenced doth kil another feloniously And because it should be certainly knowne to all persons which offences should be adiudged murder by a Statute made at Marlbridge Anno 52. H. 3. it was ordained St. 52. H. 3. 26. That murder from henceforth shall not be iudged before the Kings Iustices What is murder where it is foūd misfortune onely but murder shal be intended vpon them which bee feloniously slaine viz. with a premeditate and malitious mind Pl. com 261 And some doe define murder to be a secret killing of one man by another none being present nor none knowing thereof But if one man kill another vpon malice prepenced the law doth not respect whether he doe kill him secretly or openly or whether he that was slaine be an English man or other countrie man so that he liued vnder the Kings protection Neither doth the law regard who gaue the first blow for though he that was slaine did strike the first blowe yet if he were slaine vpon malice prepenced it shal be adiudged murder in him that killed him What is manslaughter And manslaughter otherwise called Chance medley is when two doe fight together vpon the suddaine Pl. com 261 without any malice precedent and one of them doth kill the other in which case the offendor shall haue his Clergie The name of murder 22 The name of murder is an old and auncient terme and it is the rather continued to make a difference betwéen Homicide committed by Chance medley and Homicide committed by malice prepenced And therefore if a man be indicted of murder Murder more grieuous than felonie a pardon of al felonies wil not excuse discharge him as it appeareth by the Statute of an̄ 13. R. 2. which hath ordained St. 13. R. 2. 1 Stat. 2. S. Pardon 5 That no charter of pardon shal be allowed before any Iustice for murder for the death of a man slaine by a wait assault or malice prepenced Treason or Rape of a woman vnlesse the same murder c. be specified in the same Charter For murder is a more grieuous and hatefull offence in the hearts and eares of men than other felonies be And yet if a Commission be granted to certaine persons to enquire of all felonies they may thereby take indictments of murder Kel fol. 91. though a pardon of all felonies will not auaile him who hath committed murder but that is in respect of the Statute aforesaid St. 1. E. 6. 12 23 By a Statute made Anno 1. Ed. 6. it was ordained Wilfull poysoning That all wilful killing by poysoning of any person or persons that at any time hereafter shall be committed or done shall be adiudged and taken wilfull murder of malice prepenced and that the offendors therein their aydors abettors procurers and councellours shall suffer death and forfeit in euery behalfe as in other cases of wilfull murder of malice prepenced 24 To the end that stabbing and killing men on the sodaine done by many inhumane and wicked persons in the time of their rage drunkennes hidden displeasure or other passion of minde may be from henceforth restrained thorough feare of due punishment to be inflicted on such cruell and bloodie malefactors who heretofore haue béene thereunto imboldened by presuming on the benefite of Clergie St. 1. Iac. 8. Therefore by a Statute made Anno 1. Iac. it was enacted That if any person or persons shall stabbe Stabbing to death wilfull murder or thrust anie person or persons that hath not then a weapon drawen or hath not then first stricken the partie which shall so stabbe or thrust so as the person or persons so stabbed or thrust shall die within the space of sixe moneths then next following although it cannot be prooued that the same was done of malice forethought yet the party so offending and being therof conuicted by verdict of xii men confession or otherwise according to the lawes of this realme shall be excluded from the benefite of his or their Cleargie and suffer death as in case of wilfull murder Prouided alwaies that this Act shall not extend to any person or persons which shall kil any person or persons se defendendo or by misfortune or in any other manner than as is aforesaide nor shall extend to any person or persons that in kéeping and preseruing the peace shall chaunce to commit manslaughter so as the said manslaughter be not committed wittingly willingly and of purpose vnder colour or pretence of kéeping of the peace nor shall extend to any person or persons which in chastising his childe or seruant shall besides his or their intents or purpose chance to commit manslaughter Co. l. 4. 40. 25 If vpon a fray made the Constable with others to assist him Constable or other is slaine in parting of a fray do come to part the fray and to preserue the peace and in doing of his office the Constable or any of his assistants shal be slaine this is wilfull
be of things reall it is not felonie As if one cut down a trée of another mans and carrieth it away or cutteth the corne or pulleth the apples of another and carrieth them away or hideth them it is no felonie because the tree c. was parcell of the owners inheritance and not of his personal goods But it is otherwise if the owner do cut downe the trée corne c. and another carrieth it away then he committeth felonie The lead of a house And likewise if one doe take and carry away the lead which couereth a church or any mans house it is no felonie for it is parcell of the church or house and of the inheritance and no personall goods And so it is if an Indenture or déed poll A lease for yeares purporting a lease for terme of yeares or a ward bee taken and carried away it is no felonie for a lease for the terme of yeares is a chattell reall and so is a ward A ward and not a chattell personall 10. E. 4. 15. And the same law is if a writing or boxe of writings Writings for iâ— it bée imbeciled carried away it is no felonie because they cannot be valued and moreouer for that they concerne inheritance chattels reals or things in action the taking and carying away of Treasure troue Wrecke of the sea Treasure troue Wrecke of the sea Waife Strey Waife or Stray is not felony for that the owner of them is vnknowne and it is vncertaine whose they be though Bracton termeth the taking away of Treasure troue Bracton de coronÌ„ c. 3 Quasi crimen furti But the offendor who taketh them away shal be punished by fine and imprisonment and if a lord doe secretly take away his villaines goods 22. Ass p. 99 Fit cor 265 this is no felony in him for he may seâ—se and take them away all openly when he will 22 If an offence be made felony by statute A felony made by statute and after repealed and then one doth commit the same offence Bro. cor 202 and before he is arraigned thereof that statute is repealed by the repeale of the stat the felony is extinct and the offendor shall not be arraigned thereof nor punished by force of that statute for that fact Thiefe-boot 23 Thiefe-boot is not when a man doth take his owne goods again 42. Ass p. 5 which were feloniously stolne from him but Thiefe-boot is properly when a man doth take goods of a felon to fauour him Fit cor 353 the punishment of which Thiefe-boot is not as for a felony committed but only to be ransomed and imprisoned Felony committed in one kings raigne punished in another 24 A man committeth Felony in the time of one king 1. Ed. 3. 3 Bro. Cor. 177. may be arraigned for it after in the raigne and time of another king for the same Law and forme of gouernment to the which the offence is done remaineth though the king dyeth Stolne goods caried into seueral counties 25 If a Felon steale a Horse Beast Shéepe or other goods in one county Bro. cor 170 4. H. 7. 5 7. H. 4. 44 and doth carry them into another countie it is felony in euery countie whether he doth carry or driue those goods and the offendor may be indicted or appealed in any of those counties be arraigned and haue his iudgement there And if a felon doe steale goods commit murther or doe any other felonie in one countie and then flie into another countie and is taken there 13. Ed. 4. 9. he shal be imprisoned in the Gaole of the countie where he is taken In what gaole a felon shal be imprisoned and after shall be remooued by the kings Writ into the Gaole of the countie where hee committed the felony Breaking a house to take a felon 26 A man may breake a house to apprehend a felon 13. E. 4. 9. or him that is suspected of felony for it is for the Commonwealth and the king hath a kind of interest in felony viz. to cause it to be punished and where the king hath an interest that writ or act is a Non omittas propter aliquam libertatem and so the liberty of a house will not defend him who hath coÌ„mitted or is suspected to haue committed felony against the K. But if it were for debt or trespas it were otherwise for that is only the interest of one particular person What is Robberie 27 Robbery in Latin called Rapina is in his naturall signification when one man taketh any thing from the person of another against his will feloniously although the thing taken be but to the value of a penny 22. Ass p. 39 Fit cor 115 for the which the offendor shal be hanged And yet in some case it may be robbery notwithstanding the party doth not take it from the person of the owner As if a felon doe take any of the goods of another openly in the place where the owner is present against his will this is robbery though the offendor doe not take it from the person of the owner for he doth it with that violent force that the owner dareth not Robberie by threatening or is not able to resist him As if one doe threaten another presently to deliuer his purse or otherwise that he will kill him by force of which threats he doth deliuer his purse this is robberie as well as if the felon had taken the purse from the person of the owner by violence or strong hand Or if one or more doe take vp a horse out of the pasture of the owner or driue cattell out of his ground the owner standing by and looking on the Felon at the same time Taking a mans money but not putting him in feare this is robbery so that the felon doth make an assault vpon the owner or do put him in feare But if a felon do take money from the person of a man in the high way and not put his person in feare it is no robberie 5. El. Dyer 224. but only felony for the which the offendor shall haue his clergy 44. E. 3. 14 4. H. 4. 3 28 If two thrée or more do by force take a man Robberie by taking an oth to bring mony and by threats compell him to sweare to bring them a certaine summe of money menacing him that they will kill him if he doe it not by force wherof he doth bring them the same summe of money this is robbery for that he did first sweare and after bring the money against his will and yet by this enforced oath he was not bound to bring them the said money for that the oath was taken for feare of death and so against his will And likewise Robbery in taking money giuen if felons come to a mans house in the night to rob him and the possessor of
forme as they should haue béene if they had béene indicted arraigned and found guiltie in the same Countie where such robberie or burglarie as is aforesayd was done or committed if it should appeare to the Iustices before whom any such felons or robbers should be arraigned by euidence giuen before them or by examination that the same felons or burglarers should haue béene put from their Clergie in case they had béene indicted arraigned and found guiltie in the same countie where the same robberies or burglaries were committed or done as in the same statute made in the safd fiue and twentieth yere among other things more plainely appeareth And where in the Parliament holden at Westminster St. 1. E. 6. 12 the fourth day of Nouember in the first yeare of the raigne of our Soueraigne Lord the King that now is it is ordayned and enacted amongst other things That no person or persons that before that time had béene or at any time hereafter should bée in due forme of law attainted or conuicted of murder of malice prepensed or of poysoning of malice prepensed or of breaking of any house by day or by night any person beeing then in the same house when the same breaking had bin or after that time should bée committed béeing put in feare or dread or of or for robbing of any person or persons in the high way or néere the high way or for felonious stealing of Horses Geldings or Mares or of felonious taking of any goods out of any Parish Church or other Church or Chappell or béeing indicted or appealed of any of the same offences and thereupon found guiltie by verdict of twelue men or should confesse the same vpon his or their arraignement or would not answer directly according to the lawes of this Realme or should stand wilfully or of malice mute should not bée admitted to haue or enioy the priuiledge or benefit of his or their Clergie or Sanctuarie but should bée put from the same And that in all other cases of Felonie other than such as be before mentioned all and singular person and persons which after the first day of March then next following should bée arraigned or found guiltie vpon his or their arraignement or should confesse the same or stand mute in forme aforesayd or would not answer directly in forme abouesayd should haue and enioy the priuiledge and benefit of his or their Clergie and the libertie and priuiledge of Sanctuarie in like manner and forme as hée or they might or should haue done before the foure and twentieth day of Aprill in the first yeare of the raigne of the sayd late King Henrie the eight as in the sayd Act made in the sayd first yeare among other things more plainely appeareth By reason of which article and clause contained in the sayd Act made in the sayd first yeare the sayd Statute made in the sayd fiue and twentieth yeare of the sayd late King which did put such felons and burglarers from their Clergie that doe such offence in one Countie and after are taken with the goods stollen in another Countie and there indicted arraigned and found guiltie was made void By reason whereof diuers and many persons that sithence the sayd first yeare haue committed such Robberies and Burglaries in one Countie and after haue béene taken with the manner in another Countie and there indicted arraigned and found guiltie haue had and enioyed their Clergie which they could not haue had in case the sayd Act made in the sayd fiue and twentieth yeare had stood in force to the great boldening and comfort of such offendors Stealing of goods in one County and carrying them into another Be it enacted St. 5. 6. E. 6. 10. That the sayd Act made in the sayd fiue and twentieth yeare touching the putting of such offendors from their Clergie and euerie article clause and sentence contained in the same touching Clergie shall from henceforth touching such offences to be committed and done stand remaine and be in full strength and vertue in such manner and forme as it did before the making of the sayd Act made in the said first yeare of the raigne of our said Soueraigne Lord that now is any clause article or sentence comprised in the said Act made in the said first yeare to the contrarie thereof notwithstanding This Statute of 5. 6. Ed. 6. doth not reuiue the whole before rehearsed Statute of 25. H. 8. béeing before repealed by the last braunch of the before specified Statute of 1. Ed. 6. 12. but reuiueth onely so much thereof as concerneth the stealing of goods in one Countie and after carying them into another Countie as it appeareth by the words of the same Statute And neither the sayd Statute of 25. H. 8. nor this Statute of 5. 6. Ed. 6. doe extend to Appeales but onely to Indictments so that in an Appeale brought in the Countie whither the goods robbed or spoyled were carryed if the defendant be conuict thereof the defendant may haue his Clergie at this day 27 By a Statute made Anno 5. 6. E. 6. St. 5. 6. E. 6. 9. it was rehearsed and established That whereas at the Parliament holden at Westminster by prorogation anno 23. H. 8. St. 23. H. 8. 1 it was then and there among other things ordained That no person or persons which after that time should happen to be found guiltie after the lawes of this Realme for any manner petit Treason or for any wilfull murder of malice prepensed or for robbing of any Churches Chappels or other holy places or for robbing any person or persons in their dwelling houses or dwelling places the owner or dweller in the same house his wife his children or seruants then being within and put in feare or dread by the same or for robbing of any person or persons in or néere about the highwayes or for wilfull burning of any dwelling houses or barnes wherein any graine or corne shall happen to be nor any person or persons being found guiltie of any abetment procurement maintaining or concealing of any or to any such Petit treasons murders or felonies should from thenceforth be admitted to the benefit of his or their Clergie but vtterly to be excluded therof suffer death in such maner and forme as they should haue done for any the causes or offences abouesaid if they were not Clerkes such as be within the holy orders that is to say of the orders of Subdeacon or aboue all only excepted as by the same act among other things more plainely appeareth the which act was made to endure vntill the last day of the next parliament and after that at the Session of the parliament holden at Westminster by prorogation in the 32. St. 32. H. 8. 3 yeare of the raigne of the said late king the same act with other acts was made to continue for euer Sithence the making of which statute it hath béen doubted that if such robberies and
conuicted or Clerke attainted and the day and place of his outlawrie conuiction and attainder and the day and place where and when the said felony or other offence whereupon the said person or persons shal be so indicted outlawed or Clerke attainted shall be made and done before the K. in his bench at West in the county of Midd. there to remaine of record for euer among other the K. records there within xl daies next after any such attainder conuiction or outlawrie shall be had made or procured if the terme be thē if not within xx dayes next after the beginning of the terme next following the said xl daies but also shall deliuer a transcript of euerie such indictment whereupon the said person persons shal fortune hereafter so to be conuicted or Clerkes attainted to the Ordinary to whom the body of the said person or persons shall be committed at the time that the sayd person or persons shall bee committed the sayd Ordinarie paying to euerie such Clerke as shall write the sayd Transcript for euerie copie of such indictment twelue pence for his paines vpon paine that euery Clerke of the Crowne Clerke of the peace and Clerke of Assise for the time being before whom such Indictment Attainder Outlary or Conuiction shal be so had made pronounced or remaine for the non-certifying of euery such record and deliuering of the copy of such Indictment to the said Ordinaries according to this statute to loose and forfeit forty shillings the one moity thereof to be to the king and the other moity to him that will sue for the same by action of Debt Bill Information or otherwise in any of the kings Courts of Record wherein no Wager of Law Essoine or Protection shal be allowed and the clerke of the Crowne in the kings Bench shall receiue the said certificats and transcripts at such time as they shall be tendered and profered vnto them by the said clerkes of the Crowne clerkes of the peace and clerkes of assise or by their deputy or deputies without taking any thing for the same vpon paine of forfeiture of forty shillings for euery such certificat by him refused Prouided alwaies that if there be any more persons contained and named in any such Indictment other then such person so attainted conuicted or outlawed that then such clerke of the crowne clerke of assise or clerke of peace with whom the record of such attainder outlary or conuiction shall remaine shall within the time before in this act limitted certifie the transcript of such indictment outlarie or conuiction onely concerning such person or persons so indicted and attainted outlawed or conuicted into the kings Bench at Westminster as is aforesaid which transcript so certified shall be had and taken as good effectuall and auaileable in the Law to all intents and purposes against such person and persons against whom it shall be so obiected alledged or pleaded as if the very record thereof whereupon he or they were so indicted were there present And be it enacted c. That the said clerke of the crowne in the kings Bench for the time being shall at all such times as the Iustices of Gaole Deliuerie or Iustices of Peace in euery County within this Realme of England doe write vnto him for the names of such persons which be so attainted by Outlarie or clerkes attainted or conuicted and certified into the said Bench shall incontinently without delay certifie the said names and surnames of the said persons with the causes why and wherefore they were conuict or attainted vnto the Iustices of Gaole deliuery or Iustices of Peace vpon paine and penalty to forfeit for euery name of such persons which shall be so written for and not certified by the said Clerk of the Crowne in the Kings Bench to the said Iustices fortie shillings Prouided that this Act nor any thing therein contained shall not extend to the Clerkes of the Crowne Clerkes of the Peace Clerkes of Gaole deliuerie neither to any of the Prenotaries within the Counties of Wales and Chester or within the Counties Palantine of Lancaster and Duresme or any of them to make any transcript of any such attainder conuiction or outlawrie of any person or persons conuicted attainted or outlawed before the Kings Iustices of his Counties of Wales nor Chester or Countie of Lancaster Duresme or any of them but that the same Records shall and may remaine and be in the custodie and kéeping of the sayd Clerkes and Prenotaries in such maner and wise as they are at this day this Act or any thing therein contained to the contrarie notwithstanding 43 Though the deliuering of him to the Ordinarie who hath the benefit of his Clergie and making of purgation bée taken away the Statute of 18. Eliz. 6. yet because both deliuering to the Ordinarie and making of purgation were vsed by the space of many generations in this realme and seuerall lawes statutes and some prouinciall councells were made and ordained touching the ordering direction and gouernance of those which as Clerks conuict or attaint were committed to the Ordinary and were to make purgation or not I will therefore briefly set downe the effect of some of those laws as antiquitie did retaine them He which had the priuiledge of his Clergie and was deliuered to the Ordinarie that did demaund him was not set at libertie to goe wandring vp and downe the Countrie but was safely and straitly kept in the Bishoppes prison In what sort a clerke deliuered to the Ordinarie was vsed hauing for foode vppon the Sonday bread ale and pease and vpon all the other daies courser bread and small drinke once in the day onely or in the Kings prison if the Bishop would haue it so vntill hée had purged himselfe of the crime wherewith hée was charged or otherwise had failed of his purgation and could not make it And if the Bishop would not admitte him to make his purgation then the King would direct his Writte to the Bishoppe commaunding him to suffer the same prisoner to make his purgation 15. H. 7. 19. or the King at his pleasure might pardon the prisoner or cause him to be set at libertie without making any purgation And when a Clerke was to make his purgation the King was to be made priuie thereunto who did direct his Writ to the Shirife of the countie where the offendor was prisoner commaunding him to make proclamation through his Countie that if any man could shew cause why such an offendor viz. A. B. prisoner in the Kings or Bishoppes prison should not make his purgation that then he should appeare such a day and in such a place and shew the same cause And in London the Preacher at Paules Crosse did likewise notifie that A. B. The manner of making purgation prisoner in such a prison was to make his purgation in such a Diocesse at such a place vpon such a day at which day assigned whether any crime or not to giue
of treason or felonie which graunting of Pardon is one of the most ancient and honourable prerogatiues that is annexed to the Imperiall Crowne of this Realme being an authoritie in a sort to reuiue a dead man and to continue him in life whom the Lawe adiudged to die And it is only granted vpon a good hope that the king hath of the amendment of the life of that subiect who hath offended his lawes and whose crime his owne conscience doth assure him that he may pardon notwithstanding his othe taken at his coronation which othe is that he will to the vttermost of his power cause equall and right iustice to be done in all iudgements and discretion in mercy and truth for as Bracton Bracton saith The King at his coronation The Kings oath at his coronation by an oathe taken in the name of Iesus Christ the sonne of God ought to promise his subiects thrée things The first that he will commaund and doe his whole indeuour during his raigne that true peace may be performed to the Church of God and all his people The second that he will by all meanes restraine euery kind of rapine and oppression The third that in all Iudgements he will commaund iustice and mercie to be obserued that by his mercifull dealing with others the God of mercie may take commiseration vpon him and that by his iustice all his people may enioy peace 2 Because authoritie to remitt and pardon Treasons Murders Manslaughters and other felonies with diuers others of the most ancient prerogatiues and authorities of Iustice appertaining to the imperiall Crowne of this Realme were seuered and taken from the saide Crowne by sundrie gifts of the Kings of this Realme to the great diminution and detriment of the royall estate of the same and to the hindrance and delay of iustifie For reformation whereof by a statute made Anno 27. H. 8. St. 27. H. 8. 25. it was enacted That no person or persons of what estate or degree soeuer they be shall haue anie power or authoritie to pardon or remit any treasons None but the king shal pardon treasons felonies c. murders manslaughters or felonies whatsoeuer they be nor any accessories to any treasons murders manslaughters or felonies or any outlawries for any such offences aforesaid committed done or diuulged by or against any person or persons in any parts of this Realme or Wales or the Marches of the same But that the King his heires and successors kings of this Realme shall haue the whole and sole power and authoritie thereof vnited and knit to the imperiall crowne of this realme as of good right and equitie it appertaineth any graunts vsages Acts of parliament or any other thing to the contrary notwithstanding 3 But because the Kings of this Realme haue not had that circumspection in graunting of pardons which Bracton doth thinke fit and haue béene many times deceiued in their grants by false suggestions and for that offendors in times past were greatly encouraged and lesse feared to offend in respect that pardons of manslaughters robberies felonies and other trespasses against the Peace were so easily graunted For the redresse whereof by a statute made Anno 2. Ed. 3. St. 2. Ed. 3. 2 it was ordained In which cases onely the K. may grant pardon of felonie c. That no such charters should be graunted but where the King may doe it by his oathe that is to say in case where a man doth kill an other in his owne defence or by misfortune which laide Statute was after rehearsed and confirmed by an other Statute made Anno 4. Ed. 3. St. 4. E. 3. 13 And also by another Statute made Anno 14. Ed. 3. St. 14. Ed. 3. 10. the effect of the same was rehearsed and confirmed and it was moreouer ordained That if any charter of pardon were from thenceforth graunted contrarie to the purport of the said Statutes that then the same should be accompted as voide 4 And though there be wordes large enough in the foresaide Statutes to make frustrate all those charters of pardon which be graunted against the forme of the same Statutes Non obstante in a pardon yet by putting into the Charters of pardon these wordes viz. Non obstante aliquo statuto actu ordinatione in contrarium edito the force of those Statutes be cleane taken away and not onely of those but also of all other in which this clause of Non obstante is inserted for it is a dispensation of the Statute and commonly put in euerie Letters patents But because the Kings of this Realme were oft times deceiued in granting of charters of pardon by the false and vntrue suggestion of others Therefore to auoide those abuses by a Statute made Anno 27. Ed. 3. St. 27. E. 3. 2 it was accorded That in euery charter of pardon of felonie The suggestion comprised in the pardon which shall be graunted at the suggestion of any person the suggestion and the name of him that maketh it shall be comprised in the same charter And if after the suggestion be found vntrue the Charter shall be disallowed and accounted nothing worth And the Iustices before whom such Charters shall be alleaged shall enquire of the same suggestions and if they finde them vntrue they shall disallow the Charters and procéede further as the Lawe requireth 5 Because the Commons did complaine in Parliament of the outrages mischiefes and dammages which did come to the Realme by treasons murders rauishments of women commonly done committed and the rather for that charters of pardon were too easily granted thereof and did desire the King that such charters of pardon might no more be granted in those Cases Whereunto the K. did answer that he would yéeld to their petition sauing the prerogatiue and regal authority which his progenitors before that time had And to the intent that the King would be certainely informed before of what offences he did graunt pardon Therefore by a Statute made Anno 13. R. 2. St. 13. R. 1. 1 Stat. 2. the King did graunt with the assent of the Parliament That no Charter of pardon shall be allowed before any Iustice for murder The offences shall be specified in the pardon for the death of a man slaine by awaite assault or malice prepensed treason or rape of a woman vnlesse the same murder death of a man slaine by awaite assault or malice prepensed treason or rape of a woman be specified in the same Charter And if a Charter of the death of a man be alleadged before any Iustice in which Charter it is not specified that hée of whose death any such is arraigned was murdered or slaine by awaite assault or malice prepensed the same Iustices shall enquire by a good Enquest of the visne where the dead was slaine if hée were murdered or slaine by awaite assault or malice prepensed And if they shall find that he was murdered or
slaine by await assault or malice prepensed the charter shal be disalowed and further therein shal be done as the Law requireth which saide stat was after confirmed by the statute of Anno 16. R. 2. St. 16. R. 2. 6 1. Ed. 3. 24 And therefore whereas if a man before this Statute had counterfeited the Kings great or priuy Seale and the King had pardoned him all felonies homicides robberies and other trespasses by the common Lawe his pardon should haue béene allowed and he discharged which sithence would not be allowed vnlesse the treason were specified in the charter of pardon 6 For that many common and notorious Théeues indited of seuerall felonies murders and rapes in diuers countries and vpon the same as well before the Kings Iustices as before the King himselfe being arraigned of the same felonies for the sauing of their liues did in times past become approuers to the intent that in the meane time by Brocage and great gifts bestowed vpon certaine persons they might purchase and obtaine their charters of pardon and then after their deliuerance became more notorious Théeues than they were before for the redresse whereof and to the intent to punish him with discredit and forfeture who pursueth such a charter there was a statute made Anno 5. H. 4. St. 5. H. 4. 2 which doth ordaine Sute for an Approuers pardon That if any man or woman doe desire or pursue or cause to be requested or pursued for any charter of pardon for any felon arraigned of felonie murder or rape which for the safegard of his life doth become an approuer then the name of him or her which pursueth such charter shal be put in the same charter making mention that the same charter is graunted at his request and instance And if he to whom the charter is granted after his deliueraunce becommeth a felon the same person who pursued for his charter shall forfeit a hundred pounds to be leuied to the Kings vse Pardon of the felonie but not of the attainder 7 If a man be attainted of felonie 9. Ed. 4. 28. 11. H. 4. 15 46. Fi. Cor. 124 S. Abiuration 15 and the King doth pardon him all feloniâ—s this is not sufficieÌ„t neither wil it auaile him because in the charter there is no pardon of the attainder As one abiured the Realme for the death of a man and returned againe without the Kings licence and beeing brought to the barre he pleaded the kings pardon and because it made no mention of his aâ—iucaâ—ion which was his attainder it was disalowed If the King do by Act of parliament grant a generall pardon of all felonies except burglarie Co. l. 6. 13 and an offendor is attainted of burglary he shal haue no benefit of this pardon for the offence of burglarie doth remaine notwithstanding the attainder thereof 〈…〉 8 If a man commit felonie and is attainted thereof 8. H. 4. 22. Co. li. 6. 13 if the King do pardon him the attainder and the execution this will not auaile him because the felonie doth yet remaine vnpardoned 22. Ed. 4. 7 28 29 H. 8. Dyer f. 34 9 If the king doe pardon two thrée A ioynt pardoÌ„ to two or thrée or moe men all felonies by them or any of them committed this will not auaile them because felonie is alwaies seuerall though the sequell of the Charter be seuerall yet it shall not make that which in the beginning of the Charter was ioynt to bee seuerall But it is otherwise if the beginning of the Charter had beene seuerall the sequell ioynt 3. H. 7. 15 10 If the King graunt to a man Grant to be quit of escapes of felons that he shal be quit of the escape of prisoners out of his prison beeing there for felonie or Treason yet this will not discharge him of voluntarie escape but onely of negligent escape for voluntarie escape is felonie and the King cannot licence a man to commit felonie but he ought to restraine him of the doing thereof 11. H. 4. 41. 11 Euery prisoner shall take aduantage of a generall pardon graunted by Act of Parliament A generall pardon by Parliament without pleading of it And the court shall giue him the aduantage thereof though he doth waiue and refuse the benefit of the same Act but that is to be intended where the act is general without any exception For if there be any persons excepted in the same pardon graÌ„ted by Act of Parliament 8. E. 4. 7 Pl. com 401 then he ought to plead that he is not any of those which is excepted and that he was not adherent to E. and so must plead to euery point and thing excepted in the said Act of Parliament to the intent to prooue himselfe enabled to enioy the benefit of the said pardon vnlesse in the said Act of Parliament there be mention made that euery person may take aduantage of it without pleading of it And if he that doth plead that pardon be of the same name that any of those is which is excepted in the pardon hee then must in pleading declare the same and shew that he is another man and not he which is excepted in the pardon or otherwise he shall come too late to plead it after And if he plead it before the Iustices in the countrey where the Kings atturney is not present the Iustices shall cause proclamation to be made that if any will speake for the King let him come forth c. 12 The partie whom it doth concerne ought not onely to plead the Kings pardon granted vnto him by his Charter without Parliament but hee must also shew it vnder Seale The Kings pardon must be sheÌ„wed vnder seale for that the custodie thereof belongeth onely to him and to none other And therefore though he will say that he was at another time arraigned of the same felonie at the Kings suit in such a countie where he pleaded the said Charter H. 11. H. 4. 41. and that was allowed which allowance is of Record yet that is no good plea without shewing the Charter But the court of fauour will respite the partie that pleadeth it to bring in the Charter at the day assigned 13 When a man doth plead the Kings pardon of any homicide robberie A writ of allowance of the Kings pardon felonie or other trespasse he ought also to bring with him a writ of allowance testifying that he hath found suretie according to the Statute of anÌ„ 10. Ed. 3. St. 10. E. 3. 3 which hath established That if the King doe grant to any person any Charter of pardon of any homicide robberie or felonie then he to whom the same is granted shall come within thrée moneths next after the making of the same before the Sherife and Coroners of the Countie where the felonie was done and shall find sixe good and sufficient mainpernors for whom the said sherife and
excommunication in the plaintife 5 Who are mainpernable who not Bailement by the Shirife With-holding of Prisoners mainpernable 6 In what cases no mainprise by the common Law The King or Iustices commandement 7 The Marshall shall baile no prisoner The Iustices ordinarie or absolute commaundement 8 Mainprise for offendors in Vert or Venison 9 In what case hee that is outlawed may be bayled 10 Mainprise during an approuers life 11 Maineprise vpon good name The principall in Burglary and Robbery mainpernable 12 No bailement for a prisoner attainted 13 Bailement of offendors by Iustices of Peace 14 Bailement of offendors by the Shirife 15 Bailement by Shirifes and others 16 Imprisonment at the Kings pleasure 17 The difference betweene bailement in Felony and in a personall Action 18 Mainprise is matter of Record Confession of the offence Fol. 184. 1 An offendor in felony pleadeth one of three pleas 2 Confession of the offence before the Iudge vpon the prisoners arraignement may bee in two sorts Confession of the offence must be free and without menace 3 He that doth confesse his offence before the Iudge doth become an approuer 4 Confession of the offence before the Coroner whereupon abiuration doth ensue Approuer Fol. 185. 1 Who is an Approuer An Approuer shal be banished 2 Of what offences approuement may be 3 Approuement in an Indictment and not in an appeale 4 Before whom one may approue 5 How an Approuer shall vse himselfe No approuing after pleading An Approuer must tell truth 6 An Approuers oath 7 An Approuers wages 8 An Approuer set at liberty An Approuers appeale must be certaine 9 Proces against the appellees after the approuement 10 Pleas for the appellee against the approuer An Approuer attainted or conuict of Felony 11 An appellee cannot appeale others 12 An Approuer not in prison for felony or at liberty 13 The appellee an honest and credible man 14 Generall pleas in barre of the appeale 15 Where the king may pursue an Appeale begun 16 The appellants release to the appellee 17 An Approuer confesseth his Appeale to be false 18 An Appeale abating before declaration A Felon taken with the mannoure 19 No arraignment at the kings suit vpon a false declaration Where if not an appeale yet an Indictment may bee at the kings suit 20 The plaintife in the appeale excommunicat or outlawed 21 An Approuer pardoned the appellee shal be discharged 22 Vanquishing of one of the approuers 23 Examining of an offendor condemned Sanctuary and Abiuration Fol. 189. 1 What Sanctuarie is 2 What Abiuration is 3 All Sanctuaries be extinguished Abiuration by the common Law Abiuration to a place within the Realme 4 No abiuration for Treason 5 No abiuration for the robberie of a Church 6 No abiuration for a man attainted 7 No abiuration for a man before abiured 8 Where an offendor may bee drawne out of the Church by violence The offendors confession before the Coroner 9 Tarrying in a Church aboue the time limitted 10 The manner of Abiuration The oath of Abiuration 11 The attire of an abiured person 12 The vsing of persons abiured 13 The abiuration broken death ensueth A Clarke need not to abiure 14 Where no Felony no abiuration for Felony 15 The abiured pleadeth that he is not the same person The Kings pardon of Abiuration 16 Abiuration by a Recusant 17 Abiuration by a Popish Recusant 18 Abiuration by him that committeth Trespas Pleading not guilty Fol. 192. 1 The plea of not guilty the most common for a prisoner One may plead not guilty after other pleas 2 Where vpon the plea of not guilty counsel shal be allowed and where not Triall by Battaile Fol. 193. 1 Triall of not guilty by Battaile or by the Countrey 2 The forme of triall by Battaile 3 The reason why the defendant in an appeale may be tried by battaile 4 Counterpleas to the Battaile 5 Taken with the manoure 6 Breaking of prison 7 Le ts of triall by battell on the plaintifes part 8 Priuiledges of the appellants person The King A Citizen of London 9 No wager of battell in an appeale of Rape 10 One fighting with seuerall men 11 An Appeale by an approuer 12 The appellee wageth battell and then becommeth blind Triall by Peeres Fol. 196. 1 The triall of the plea of not guilty by Peeres 2 The forme of arraignement and triall of a Peere of this realme 3 By whom Peeres appealed shal be tried By whom Ladies shall be tryed 4 The triall of Bishops Arraignement and Tryall in Parliament 5 Triall of Treason committed in Ireland 6 Triall of Misprision of Treason The number of Peeres at the triall 7 Triall of Peeres by Peeres in all cases of Treason and Felonie Triall by the Countrey Fol. 198. 1 Triall of the plea of not guilty by the countrey 2 Triall by the country of forraine pleas A man stricken vpon the Sea dieth vpon the land 3 The Proces against the Iurie The Proces in an Appeale and not in an Indictment 4 Where a Nisi prius is grauntable in an Appeale 5 Remaunding of prisoners out of the Kings Bench into the Countrey 6 Triall of Felonies committed by English men in Scotland 7 The prosecutors and witnesses bound to giue euidence 8 The accessary tried though the principall be not 9 Euery Iuror must haue fiue pounds of freehold 10 The offendor shall forfeit no lands 11 A like Act made in Scotland 12 Scottishmen repairing into England to giue euidence shal be free from arresting 13 The offence shall be layed where it is done 14 Hee that is once tried shall not be eftsoones called into question 15 None shall bee sent out of England to receiue his tryall 16 The Iurors shall allow of or reiect the witnesses Challenge Fol. 201. 1 Where the prisoner is allowed to challenge peremptorily Seuerance in challenges 2 Which be challenges vpon cause for that hee was an indictor 3 Challenge for want of Medietatem linguae 4 Challenge for want of sufficient freehold 5 Challenge for the king 6 A man outlawed of Felony shall haue his challenge 7 A Iuror challenged for that he is an Alien a Villaine or Outlaw Euidence Fol. 204. 1 Some bound to giue euidence against an offendor let to baile 2 Some bound to giue euidēce against an offendor imprisoned 3 Restitution of goods vpon an attainder by euidence 4 Euidence giuen by a stranger 5 There must be two accusors to giue euidence in Treason 6 Euidence or accusors in high Treason 7 Euidence against abettors to offences 8 Euidence on the defendants part in Felony Verdict Fol. 206. 1 A Verdict at large may bee giuen in Felony 2 The Verdict sometime lesse penall then the Indictment 3 The Verdict sometime more penall then the Indictment 4 Where the Iury shal find who killed the dead man Clergy Fol. 207. 1 What Clergy is 2 Who shal not haue his clergy by the common Law 3 A committer of Sacriledge 4 The habite or tonsure of a Clerke 5 Clergie
the absolute commaundement of the Kings Iustices Or for the forrest Or for the detestable offence of wilfull murder And the common law doth prohibit the prisoner to be mainpernable in all the foresaid cases Stat. 3. E. 1. 15. as it appeareth by the statute of WestmÌ„ 1. 36 He is lawfully imprisoned as a speciall disturber of the peace ImprisonmeÌ„t for notorious great offences who is committed to prison for any great and notorious offence viz. such as we doe call Mala per se which be hated abhorred and persecuted in all Kingdomes Prouinces Cities and well gouerned common weales As Treasons murders rapes burglaries robberies c. And it appeareth by the statute of West 1. that he is lawfully imprisoned which before was outlawed And he which is an approuer Stat. 3. E. 1. 15. And that felon which is taken with the manner And he which hath broken the Kings prison And he which is a théefe openly defamed and knowen And he which is appelled by an approuor And he which is taken for burning of a house feloniously done Or for false money Or for counterfeiting the Kings seale And he which is excommunicat taken at the Bishops request And he which is taken for a manifest offence or for Treason touching the King in which said cases the offendor shall be committed to prison and not be let to baile or mainprise St. 1. Iac. 12. And if any person shall be once conuicted that he did take vpon him by witchcraft inchantment charme Witchcraft charme sorcery or sorcerie to declare in what place any treasure of gold or siluer might be had or where things lost or stollen should be found or to the intent to prouoke any person to vnlawfull loue or whereby any cattell or goods of any person shall be distroyed wasted or impaired or to hurt or distroy any person in his or her body S. Felony by Statute although the same be not effected Then he shall suffer imprisonment one whole yeare without baile or mainprise and shall stand vpon the Pillorie c. for he that declareth the things aforesaid by any of the meanes aforesaid receiueth his knowledge therein and practiseth to effect the same by the inspiracion of the Deuill the professed enemie of mans peace and so committeth a great and notorious offence and worthily deserueth imprisonment 37 He is lawfully impâ—isoned who is found by verdict ImprisonmeÌ„t for offences done vi armis or by his owne confession conuicted for any offence done vi et armis and against the Kings peace for the law hath ordaâ—â—ed that all things shall be done and all sutes prosecuted betwéene one membâ—r of the common weale and an other with all tranquilitie and quietnes and he that doth any thing in perturbation of that tranquilitie breaketh the Kings peace and so shal be committed to prison as a disturber of the peace vntill he hath paied vnto the King a fine And therefore in an action of Trespas or false imprisonment if the plaintife do declare against the defendant that he did such an offence or made such a trespas vi armis contra pacem the defendant doth first and principally séeke to auoyd that to cleare him selfe of force and the breach of the peace and doth plead thereunto Quoad venire vi armis quicquid est contra pacem non est culpabilis c. Accordingly in an Assise brought against foure men 2. Ass p. 8. 12. Ass pla 33. it was found by verdict that one of them came with force and armes and all foure were committed to prison because in Trespas all be principals and none be accessories and yet if any of them had bin within age then he should not haue béen imprisoned 14. E. 3. 18. 16. Ass p. 7. But if a woman couert be found a disseisoresses with force she shall be committed to prison 22. ass p. 87. And if an action of Trespas of battery be brought against the husband and wife and it be found by verdict that the wife was guiltie of the battery but not the husband the wife shall be imprisoned and not the husband If he that is proued to be a disseisor in an assise be found to haue carried away any goods this is an attainder of force 11. H. 4. 17. and he shal be imprisoned without furder inquiry of the force for so it is ordayned by the statute of Anno 4. H. 4. St. 4. H. 4. 8. 17. Ass pla 14. If a man do giue councell to others to do a disseisin with force whereby they do it this shall be adiudged a disseisin in him and he shall be imprisoned In an Assise if the defendant do pleade a plea wherein an Duster is not denied which is found against him he shall be imprisoned 28. Ass p. 15 though he doth not confesse the Duster And he that confesseth an Duster 40. Ass pla 16. 19. H. 6. 8. if the Issue be found against him shal be imprisoned In an action of Trespas brought for fishing by force and armes in his seuerall fishing the defendant was found guiltie and was committed to prison In an assise of rent charge against thrée terre tenants it was found that the rent was behinde and the plaintife distrayned and one of them made rescous 39. Ass p. 4. and therefore they were all adiudged disseisors but none were imprisoned but he that made the Rescous 9. Ass p. 7. And in euery case of force where any Trespas is found vi armis false imprisonment or assise the iudgement shall be quod defend ' capiatur 22. Ass pla 87. for he shall be imprisoned for the Kings fine and when he doth pay the Kings fine he shall be deliuered 38 As one person may be imprisoned who menaceth assaulteth or beateth the person of an other or with force and armes entereth vpon his lands or tenements or violently taketh away his goods or chattels so by the statute of Anno 2. ImprisonmeÌ„t for Riots H. 5. St. 2. H. 5. 8. where thrée persons or more be attainted of great and heinous Riots they shall haue one whole yeares imprisonment at the least without being deliuered by baile or mainprise S. Riots 11. or in any other manner during the said yeare And if the Rioters be attainted of petit Riots they shall haue imprisonment as the King and his Councell shall thinke good And by the statute made Anno 1. M. it was enacted St. 1. M. 12. S. Riots 36. that if any persons aboue the number of two and vnder the number of twelue being assembled together shall intende practise or put in vre with force of armes vnlawfully to murder any of the kings subiects or to breake downe the pales hedges ditches walls or other inclosure of any parke or other ground inclosed or the bancke of any fish pond or poâ—le to the intent the same should remaine open or to doe any
other vnlawfull act prohibited by that statute and being required by a Iustice of peace or shirife of the said County or by the Maior or chiefe officer of the city or towne corporat to returne to their inhabitations do not but attempt to put in vre any of the said things Then euery of the same persons shall be imprisoned one yeare without baile or mainprise for the offendors in both the cases aforesaid putting in practise their outrages with a multitude of persons bee great disturbers of the peace and Transgressours of the law 21. H. 6. 5. 39 In an action of False imprisonment Imprisoning him that holdeth land with force the defendant pleaded that the plaintif held the manor of D. by force and B.C. a Iustice of peace of the same County did take him recorded the force and sent him to the defendant being Gaoler of the same County to be imprisoned and this was allowed a good iustification though he was committed to prison but by one Iustice of peace And in like sort if the action of false imprisonment had bin brought against the Iustice of peace who committed the offendor to warde the same had béen a good plea in barre for him St. 8. H. 6. 9. for that the statute of AnÌ„ 8. H. 6. doth warrant him so to do giueth that authority to one Iustice alone or to more then one 29. Ed. 3. 9. 5. H. 7. 4. 40 If a Huy and Cry be leuied and pursued that a horse of such a colour or marke so many beasts of such a sort or age Imprisoning of one pursued by Huy crie or so many shéepe of such a brand be stolen one is taken leading or driuing of the said horses beastes or shéepe it is lawfull for any man to apprehend and stay him and to commit him to the Constables of the Towne where he is apprehended and by them to be put into the stockes or safe kept vntill he be deliuered by due course of law though he be not of euill fame or name but a man of good credite for séeing the law by the Huy and Cry hath accused him by a course of law he must be againe acquited and discharged And in this case he that is so taken though he be after acquit of the felony shall not haue an action of Trespas false imprisonment or other remedy against him that did apprehend him Fitz. barre 202. 3. H. 4. 9. 41 In an action of Trespas of assault battery and imprisonment Imprisoning him that doth breake the peace the defendant pleaded that the plaintife menaced to kill him and therefore he requested the Constables to arrest the plaintife to find suerties of his good abearing and the Constables and the defendant with them did come and arrest him and put him into the stockes vntill he did finde suerties and this was allowed to be a good iustification 5. H. 7. 6. And in like sort if one do make an assault vpon a Constable the same Constable may arrest and imprison him vntill he hath found suerties to kéepe the peace though the Constable be the same person vpon whom the said assault was made for in this case he doth nothing but preserue the peace and obserue the Law which is to be done aswell in his own case 13. H. 7. 10. as any others And moreouer if a Constable be informed that a lewd man is in a suspected house with a woman of euill name for incontinencie he may take so many of his neyghbors with him as he will Arresting suspected persons and arrest the said man and woman to find suerties of their good behauiour And they nor eyther of them shall haue any action of False imprisonment or other action therefore against the said Constable or any other of his assistants for the Constable was ordeyned to kéepe the peace 10. Ed. 4. 17. and to represse felons And he may take suertie by Obligation if he find any commiting of a fray but vpon no penaltie And if the partie will not find suerties the Constable may impryson him vntill he hath found suerties 9. Ed. 4. 26. 42 In an action of Trespas of assault battery and imprisonment Imprisoning him that doth attempt to rob the defendant pleaded that the plaintife lay in waite in a high way leading from the towne of A. to the towne of B. to rob such persons as trauailed in that way and assaulted to rob one L. and drew his sword and commaunded the same L. to deliuer his purse whereupon L. fled and leuied Huy and Cry and this defendant being trauailing that way pursued the plaintife and tooke him and committed him to the Constable to be put in the stockes who did it accordingly and this was adiudged a good iustification for euery man may arrest and imprison him that doth commit a felony or him who maketh it apparant that he doth intend and goe about to commit a felony for that he doth manifest him selfe to be a principall breaker of the law and peace of the realme Assisting to arrest by warrant 43 In an action of false imprisonment against two 19. H. 6. 43. 56. one of them pleaded that he had a precept to arrest the plaintife which he did accordingly And the other defendant pleaded that he came in company with the other to ayde and assist him to arrest the plaintife And this was allowed a good Iustification in them both for any straunger may assist a Sherife his Baylifes or any other that hath authority to execute the Kings writs or proces and he that wil not assist him being required shall paie a fine to the King And the Sherife may take as many persons as he will to aide him to execute the Kings writs 3. H. 7. 1. 17. E. 4. 5. for it is in furtheraunce of Iustice and no breach of the peace Breaking a house to arrest 44 If a man be indicted of Trespas 27. Ass pla 35. 18. E. 4. 4. and a Capias pro fine awarded to the Sherife to take the body of the same person The Sherife may breake open his house or close to arrest and imprison him it is a lawfull imprisonment But the Sherife may not breake any house or chest to make execution by vertue of a fieri facias to him directed S. Force 32. The Sherife arreâ—eth and doth not retorne his writ 45 If the Sherife haue a Capias to arrest a man and he doth arrest him and after doth not retorne his writ the partie arrested may haue an action of false imprisonment against the Sherife and recouer damages for his wrongfull arrest or Imprisonment for the Capias is ita quod habeas corpus cius c. and so if he haue not the parties body in the Kings Court at the day of the retorne of the writ it shall be intended that he did not arrest him by force of that writ nor according to the
the land be seuerall yet their possession touching the profit thereof is ioynt And this Action is founded vpon the possession And whereas both the Statute of 1. H. 5. and 5. Eliz. doe ordaine that the partie and parties grieued shall and may at his and their pleasure haue and sue this Action of forger of false déedes in this case both the Ioyntenants and tenants in common be the parties grieued for that their land is molested troubled recouered or charged by this forged déed Fitzh Forger 5. But if there be two Ioyntenants or tenants in common of certaine land and one of them doth forge a false Release or other Déede whereby the whole land is intended to be conueied to himselfe in this case the other Ioyntenant or c. may haue an Action of forger of false déeds against his said ioyntenant or c. for that forged and false déede was made to the intent that the right or title of the forgers companion in estate should be molested troubled defeated or recouered And in this case he is the partie grieued to whose onely disherison the said forgery doth trench 21. H. 6. 4. 21 In an Action of forger of false déedes One sealeth a déed by an others commandement the Defendant pleaded that the Plaintife being seised of certaine land did couenant with a stranger to enfeoffe him of the same land whereupon the same stranger came to the defendant being a Clerk and requested him to make a déed of feoffment of the same land which he did and after by the plaintifes commaundement he sealed the same déede and after did reade the déede at the time of the liuerie and seisin which is the same forgerie and proclamation and that was adiudged a good Plea for when the defendant sealed the feoffement by the plaintifes commaundement and in his presence it was the plaintifes owne act and déede and his owne sealing and not the defendants for the plaintife did vse the defendants hand but as his instrument therein as men vnlearned doe vse an other mans hand to helpe or direct them to subscribe their names to a Deede 9. H. 6. 26. 7. H. 6. 34. 22 If the father do forge a déede and after dieth One forgeth and another doth publish and then his sonne doth find the same déede and doth pronounce publish or shew forth in euidence the same déede knowing the same to be false and forged to the intent the estate of fréehold or inheritance of any person of in or to any lands c. should be molested troubled defeated or recouered this is forgerie in the sonne and he shall be punished according to the foresaid Stat. of 5. El. And the same law is if one man do forge a déed or c. and an other man knowing thereof shall publish it to any of the intents aforesaid this is forgerie prohibited by the same statute for the same stat of 5. Eliz. is in the disiunctiue viz. if any person shall forge or publish Forgerie by antedating of a deed 23 If a man doe make a feoffement to one person of certaine land 27. H. 6. 3. and doth deliuer possession therof accordingly and after he doth make a feoffement to another person of the same land bearing date before the first feoffement but doth not deliuer it this last feoffement is not the feoffors déed But yet if hée do publish it to be his déed the first feoffée may haue an action of forger of false déeds against him for when he had made the first feoffement of the land hée then had nothing left in him of the same land And therefore when hée made the second antedated déed of that land it was a false and forged déed and then after publishing pronouncing or shewing it forth to be his déed it was with intent to molest trouble defeat recouer or charge the land of the first and lawfull feoffée and so he is punishable according to the foresaid stat of 5. El. as hée was before by the stat of 1. H. 5. 24 Though the foresaid two statutes of 1. H. 5. and 5. Eliz. were ordained to punish those who should forge any false déed or c. to the intent to molest trouble charge or recouer the right or title of any person in his lands tenements or hereditaments or to the intent that any person should claime any lease for yeares or annuitie or should forge any Obligation Bill obligatorie Release Acquitance or other discharge of any debt account action suit demaund or other thing personall yet was there no prouision in either of them to punish those who should get into their hands any money goods cattels iewels or things of any other persons by colour of a false token or forged or counterfeit letter for the redresse whereof by a statute made anno 33. H. 8. St. 33. H. 8. 1 it was enacted That if any person or persons of what estate or degrée soeuer hee or they be Getting of other mens goods by counterfeit tokens or letters shall falsely and deceitfully obtaine or get into his or their hands or possession any money goods cattels iewels or other things of any other person or persons by colour or means of any false tokē or counterfeit letter made in another mans name that then euerie such person persons so offending being thereof lawfully conuict by witnesses taken before the L. Chauncelor of England for the time being or by examination of witnesses or confession taken in the Star chamber before the K. honorable Counsel or before the Iust of Assise in their circuits for the time being or before the Iust of peace within any part of the K. dominions in their generall Sessions or by action in any of the K. courts of record shal haue suffer such correction punishment by imprisonment of his body setting vpō the pillorie or otherwise by any corporal pain except pain of death as shal be vnto him or them limited adiudged or appointed by the person and persons before whom he shal be so conuicted of the said offences or any of them Suspected persons called before the Iustices 25 As wel the Iust of Assise for the time being as also ij St. 33. H. 8. 1 Iust of peace in euerie countie whereof one to be of the Quorū shal haue power authoritie to call and conuent by proces otherwise to the said Assises or generall sessions any person or persons being suspected of any of the aforesaid offences to cōmit him or thē toward or to let him or thē to baile vntil the next Assises or general sessiōs there to be examined and further to be ordered by their discretions as is abouesayd Prouided alwayes that the Iustices of peace within euerie Citie Borough Towne and Franchise within this Realme or other the kings dominions shall haue like iurisdiction power and authoritie at their generall Sessions and otherwise to do and execute all and euerie
thing and things in all points as other Iustices of Assise in their circuits or Iustices of peace in the Counties by vertue of this Act be limited and appointed to do and execute for the punishment and correction of like offendors as beforesaid is limited Sauing to the partie grieued by such deceit such remedie by way of action The remedie of the partie grieued or otherwise of for the same money goods cattels iewels or other things so obtained as he might haue had if this Act had neuer bin made Any thing in this Act c. notwithstanding 26 Forgerie of writings hath béene alwayes so hatefull in this realme that our law-makers haue pursued the practisers therof with sharpe and bitter punishment though in some cases the same was not put in vse to molest or euict any man of his land lease annuitie debt account action suit or other demaund nor to get into his hands any others goods cattels or iewels but only to escape the ordinance and censure of the law As by a statute made anno 5. Eliz. it is established St. 5. El. 7. That no person retained in husbandry or in certain inferior arts or faculties in the said statute mentioned shal depart out of one citie towne or parish into another nor out of the Lathe Rape Wapentake or Hundred nor out of the County or Shire where he last serued to serue in another Citie Towne Forging of a testimoniall c. vnlesse he haue a Testimoniall of the said Citie or town corporat from whence he departed or of the Constable or other officer c. And if any such person shall be taken with any counterfeit or forged testimoniall then he shal be whipped as a vagabond ⧠Periurie Subornation of witnesses Truth tried by the othes of men 1 THe Law of the Realme desirous to trie out truth in all causes called in question before her to the end she might procéed in iudgement and execute iustice accordingly hath in all ages prooued it to bee the best meanes to search out this truth by the othes of honest lawful and indifferent persons intending that the man who doth professe God to bee his Creator Redéemer and Sanctifier and hopeth to be saued by his blood when hee doth come in the presence of that God and his people and doth aduisely sweare that he will declare the trueth according to his knowledge in that matter in question as God shall help him which is to say as he will expect the blessing of God in this life and eternall saluation in the life to come is void of all partialitie and priuat affection in all respects to be credited and will tell the whole truth and nothing but the truth And therefore an othe is aptly termed Sacramentum a holy band or sacred tie or godly vow The credit of an othe some do call it firmamētum veritatis the foundation ground of truth and some other vinculum pacis a meane of the knot or lincke of peace And if it be taken and found by a whole Iurie consisting vpon twelue persons or aboue it is called veredictum viz. a presentment of truth And others doe hold it a ceremonie instituted by God wherein himselfe is a partie and therefore he will see it verified or sharply punished Wée know that the proofe of most of our acts déeds and writings doe depend vpon the othes of others and whatsoeuer men do for their owne particular account most certaine is altogether in most cases vncertaine vnlesse it may be iustified by the othes of others As if one doe commit murder rape burglarie robberie or other offence whatsoeuer and it be denied and cannot be prooued by the othe of some other the offendor shall escape vnpunished for it And likewise if a man do buy land of another if the feoffor doe make him a déed of feoffement thereof do seale and deliuer it and giue him possession and after will denie it vnlesse it can be prooued by the othe of some other the feoffée shall loose his land and money And so it is of leases annuities releases acquitances obligations bargaines contracts couenants promises offences entries disseisins and other matters in fait if they be denied trauersed and called in question the proof and validitie of them doth depend wholly vpon the othes and testimonie of others And there is no case so plaine which commeth in question betweene partie and partie but one of the parties to the sute may pleade such a plea as shall come to be tried by the othes of others 2 Therefore as the Lawe doth reuerently respect the othes of men What sorts of persons are to be deposed taketh her intelligence of matters in fait from them doth cleaue leane vnto them and giueth such credite and approbation vnto them that shée doth found and build her iudgements in most cases of greatest importance vpon them So shée retaineth a vigilant and carefull eye that those othes be taken by men of sinceritie of life and maturitie of iudgement persons not stained with Periurie or other gréeuous or foule offences men indifferently affected and such as will in swearing respect the trueth of their knowledge and not the face of the person for if shée espie any of those defects in him she doth either wholly reiect his othe or else shée giueth little or no credite vnto it and further inflicteth condigne punishment vpon him according to his desert Mag. Char. 9. H. 3. 29. 3 And because the King himselfe at his Coronation is sworne that iustice shall be solde deferred or denied to no man nor that any man shall be condemned but by lawfull triall and euery of his Iudges be sworne that hée shall doe equall Lawe and execution of iustice to all the Kings Subiects Sta. 18. Ed. 3 rich and poore without hauing regard to any person All the parties to the execution of iustice sworne Therefore the law hath deuised that those Iudges before whome any cause is called in question and is brought to an issue shall be informed of the trueth of that issue by the othes and verdict of twelue Iurors who are impannelled returned and sworne to trie that issue to the end the same Iudges may ground their iudgement thereupon and so doe equall iustice to the parties according to their oathes and also that the saide Iurors shall be ascertained of the veritie of the fact by the Othes of witnesses or other euidences that they may giue their verdict thereupon according to their Othes And séeing those Iurors being the greatest number of persons that be vsually sworne for the furtherance and execution of iustice be returned by the Shiriffe of the Countie where the cause dependeth in question his vndershirife or the Bailife of some Libertie or for some default in them by the Coroners Therefore the Lawe hath further ordained that the saide Shiriffe Vndershiriffe or c. shall be indifferent persons of themselues and also deale vprightly
of his saide houses or buildings to fall downe or runne in decay and after doe make any déede of gift alienation or other conueyance of his moueable goodes or cattells in his life time to the intent after his death to defeate his successors of such iust Actions and Remedies as otherwise they might haue had for the same against their executours or the administratours of their goods Then the Successours of him which shall make such déede c. shall and may commence sute and haue such remedy in any Court Ecclesiasticall within this Realme competent for the matter against him or them to whom such déed of gift or alienation shall be so made for the amending and reparation of such Dilapidations or iust recompence for the same as hath hapned by his fact or default in such sort as he might should or ought lawfully to haue if he or they to whom such déed of gift were made were executor of him that made such déede c. or administrator of his goods c. 36 For the auoiding and preuenting of couin or collusion in suing of Actions popular which haue bin ordained from time to time to restraine and punish seuerall sorts of offenders and to the intent that the penalties of those Statutes might indéede be imposed vpon the transgressors thereof and the same offences might not be shadowed and the meaning of the makers of those Statutes might not be deluded by the couenous deceitfull and fraudulent sutes of the same offenders friendes whose practises haue béene to couer and not to punish the same offences by a Statute made Anno 11. H. 7. St. 11. H. 7. 20. it was established That if an Action popular be sued against any man by cellusion An Action popular sued by Collusion and the plaintife in the same doe recouer against the defendant or be barred any other person may after sue against the same defendant another Action popular with good faith and shall in the same recouer and haue execution if the Recouerie or barre in the first Action be found to be by couin And the defendant beign attainted of Couin shall haue two yeares imprisonment by processe of Capias and Vtlarie to be sued within the yeare after iudgement giuen or at any time after vntill the defendant be had and imprisoned and that aswell at the Kings suite as at euery other persons that will sue in that behalfe And no release of any common person made to any partie before or after an Action popular or indictment hanging shall be auaileable to let or surcease the said Action indictment processe or execution Prouided alwaies No couin shal be auerred where there hath béene triall by verdict that no plaintife or plaintifes be in any wise receiued to auerre any couin in any action popular where the point of the same Action or else collusion haue béene once tried or lawfully found with or against the plaintife by triall of twelue men and not otherwise St. 13. Eli. 7. 37 By the Statute made Anno 13. Elizab. intituled An Act touching orders for Bankerupts Fraudulent possessing of Bonkerupts lands goods or debts amongst other things it is enacted That if at anie time before or after that any such person viz. a Bankerupt departeth the Realme or shall kéepe his house or otherwise absent himselfe or take Sanctuarie or suffer himselfe to be arrested outlawed or yéelde his body to prison any person doe fraudulently by couin claime demaund recouer possesse or detaine any debts dueties goods cattels lands or tenements by writing trust or otherwise which were or shall be due or appertaine to any such offendor other than such as hée can and doth prooue to be due by right and conscience for money paid wares deliuered or other iust consideration to the iust valew thereof before the Commissioners thereunto authorized or the more part of them and the same to procéed bona fide without fraud or couin Then euery such person so craftily demaunding claiming hauing or possessing any such debt shall forfeit double as much as he shall so claime demaund detaine or possesse which said forfeiture shall be recouered leuied and imployed for the payment of the Creditors debts 38 Forasmuch as it was oftentimes put in vre to the defrauding of Creditors that such persons as were to haue the administration of the goods of others dying intestate committed vnto them if they require it would not accept the same but suffer or procure the administration to be graunted to some stranger of meane estate and not of kinne to the intestate from whom themselues or others by their meanes did take déedes of gift and authorities by letter of Atturney whereby they obtained the estate of the intestate into their handes and yet stood not subiect to pay any debts owing by the said intestate and so the creditor for lacke of knowledge of the place of habitation of the Administrator could not arrest him nor sue him and if they fortuned to finde him out yet for lacke of abilitie in him to satisfie of his owne goods the valew of that hée had conueied away of the intestates goods or released of his debts by way of wasting the creditors could not haue or recouer their iust and due debts For reformation whereof by a Statute made Anno 43. Fraudulent administratiō of intestates goods Elizab. it was ordained St. 43. El. 8. That euery person and persons that héereafter shall obtaine receiue or haue any goods or debts of any person dying intestate or a release or other discharge of any debt or duety that belonged to the intestate vpon any fraud as is aforefaid or without such valuable consideration as shall amount to the valew of the same goods and debts or néere thereabouts except it be in or towards satisfaction of some iust and principall debt of the valew of the same goods or debts to him owing by the intestate at the time of his decease shall be charged and chargeable as Executor of his owne wrong and so farre onely as all such goods and debts comming to his hands or whereof he is released or discharged by such Administrator will satisfie Allowance of iust debts and other lawfull payments deducting neuerthelesse to and for himselfe allowance of all iust due and principall debt vpon good consideration without fraud owing to him by the intestate at the time of his decease and of all other payments made by him which lawfull Executors or Administrators may and ought to haue and pay by the Lawes and Statutes of this Realme 39 By a Statute not imprinted made Anno 27. H. 8. it was enacted St. 27. H. 8. That all craftie and fraudulent Recoueries feoffements estates giftes grants and leases and euery of them made by any of the chiefe gouernours of such religious houses Fraudulent conueiances of Abbey lāds as were giuen to the King by that Statute viz. of such as had not in lands aboue two hundred pounds by the