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
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
was then further enacted Who shal take the othe for the Quéenes supreame gogouernment That all and euery Archbishop Bishop and all and euerie other Ecclesiasticall person and other Ecclesiasticall Officer and Minister of what estate dignitie preheminence or degrée soeuer he or they be or shall be and all and euerie temporall Iudge Iustice Maior and other lay and temporall Officer and Minister and euery other person hauing the Quéenes fées or wages within this Realme or any of her Dominions shall make take and receiue a corporall othe vpon the Euangelists before such person or persons as shall please the Quéene her heires or successors to assigne and name to accept and take the same othe And euery person that at any time shal be preferred promoted or collated to any Archbishopricke or Bishopricke or to any other Ecclesiasticall benefice promotion dignitie office or ministrie or that shall be by the Quéene her heirs or successors preferred to any temporall or lay office ministrie or seruice within any her Dominions before he shall take vpon him to receiue vse exercise supplie or occupie any such Archbishopricke Bishopricke promotion dignitie office c. shall receiue the same othe before such persons as shal haue authoritie to admit any such person to any such office c. or else before such person or persons as by the Quéene c. vnder the great Seale shall be assigned to minister the sayd othe And euerie person temporall suing liuerie or Ouster le maine out of the hands of the Quéene her heires or successors before his liuerie or Ouster le maine sued forth and allowed And euerie temporall person doing any homage to the Quéene her heires and successors or that shall bee receiued into seruice with her c. shall take the foresaid corporall othe before the Lord Chancellor or Kéeper of the great Seale or before such person or persons as by the Quéene c. shal be appointed to receiue the same And euery person taking orders and euery other person which shal be preferred to any degrée of learning in any Vniuersitie within this Realme or dominions before he shall receiue such orders or be preferred to such degrée of learning shall take the foresayd othe before his Ordinary Commissary Chancellor or Vicechancellor or their sufficient deputie in the said Vniuersitie And by another stat made an 5. Eliz. it was further enacted St. 5. El. 1. That all other persons which haue taken or shall take orders commonly called Ordines sacros or Ecclesiasticall orders or haue béen or shal be promoted preferred or admitted to any degrée of learning in any Vniuersitie within this Realme or dominions to the same belonging And all Schoolmasters and publique and priuat teachers of children as also all maner of person and persons that haue taken or hereafter shal take any degrée of learning in or at the common laws of this realm as well vtter-barresters benchers readers ancients in any house or houses of court and al principal Treasurers and such as be of the grand companie in euery Inne of Chancerie all Atturneies Prothonotories and Philozers towards the laws of this realme And all manner of Sherifes Escheators and Feodaries and all other person and persons which haue taken or shall take vpon him or them or haue béen or shall be admitteed to any Ministrie or Office in at or belonging to the common law or any other law or lawes of to or for the execution of them or any of them vsed or allowed or at any time hereafter to be vsed or allowed within this Realme or any the Dominions or Countries belonging or which hereafter shall happen to belong to the Crowne or dignitie of the same And all other Officers or Ministers of or towards any Court whatsoeuer and euerie of them shall take and pronounce a corporall othe vpon the Euangelists before hée or they shall bée admitted allowed or suffered to take vpon him or them to vse exercise supply or occupie any such vocation office degrée ministrie roome or seruice as is aforesaid and that in the open Court whereunto hée doth or shall serue and belong And if he or they doe not or shal not serue or belong to any ordinarie or open Court then hée or they shall take and pronounce the othe aforesaid in an opē place before a conuenient assembly to witnesse the same and before such person or persons as haue or shall haue authoritie by common vse or otherwise to admit or call any such person or persons as is aforesaid to any such Vocation Office Ministrie roome or seruice or else before such person or persons as by the Queene her heires or successors by commission vnder the great Seale of England shall be named or assigned to accept and take the same according to the tenor effect and forme hereafter following viz. I A. B. doe vtterly testifie and declare in my conscience The Othe that the Queenes Highnesse is the onely supreame gouernour of this Realme and of all other her Highnesse Dominions and Countries as well in all Spirituall or Ecclesiasticall things or causes as temporall And that no forreine Prince Person Prelate State or Potentate hath or ought to haue any iurisdiction power superioritie preheminence or authoritie Ecclesiasticall or Spirituall within this Realme And therefore I doe vtterly renounce and forsake all forreine iurisdictions powers superiorities and authorities and doe promise that from henceforth I shall beare faith and true allegiance to the Queens Highnesse her heirs lawful successours and to my power shall assist and defend all iurisdictions priuiledges preheminences and authorities graunted or belonging to the Quéenes Highnesse her heires and successors or vnited and annexed to the imperiall Crowne of this Realme So helpe me God and by the contents of this booke And by the foresayd Statute of Anno 5. Elizab. 1. it was further enacted That euerie Archbishop and Bishop within this Realme A Bishop may tender the Othe and the Dominions of the same shall haue authoritie to tender or minister the othe aforesaid to euerie or any Spirituall or Ecclesiasticall person within their proper Diocesse as well in places and iurisdictions exempt as not exempt And that the Lord Chauncelor The L. Chācellor may grant commissions to tender the Othe or Kéeper of the great Seale of England for the time béeing shall and may at all times hereafter by vertue of this Act without further warrant make and direct Commission and Commissions vnder the great Seale of England to any person or persons giuing them thereby authoritie to tender and minister the othe aforesaid to such person or persons as by the foresaid Commission or Commissions the sayd Commissioners shall bée authorised to tender the sayd othe vnto And moreouer it was enacted That if any person or persons appointed or compellable by this Act The penaltie for the first refusall of the Othe or by the foresaid Act made Anno 1. El. 1. to take the sayd othe
of England for the time beeing and offer to trauerse the said indictment or Appel whereupon the said Outlawrie shal be pronounced then he shal be receiued to the said trauerse being thereupon found not guiltie by verdict of xij men he shal be cleerely discharged of the said Outlawrie and of all penalties and forfeitures by reason of the same as though no such Outlawrie had bin made And it is to be noted h. 12. El. Dyer 287. that the foresaid two Statutes doe extend to offendors in any manner of Treasons by the Common law or Statute and not to those onely which were declared to be Treasons by the Statute of 25. Edw. 3. 32 For the spéedie triall and punishment of such persons as shall commit any manner of Treasons within the Principalitie of Wales and the Marches of the same or elsewhere within the Kings dominions where his originall Writs in the Chauncerie of England commonly runne not by a Statute made Anno 32. H. 8. it was enacted That all such Treasons and Misprisions of Treasons as is aforesaid Triall of treasons committed in wales shall be presented St. 32. H. 8. 4. and tried by the oathes of twelue men inhabiting within any such Shires and before such commissioners as the King from time to time in such cases shall assigne and appoint by his Commission or Commissions of Oyer Determiner in like manner forme as if such Treasons or misprisions of treasons had bin done and committed within such of the said Shires into the which the said Commissions of Oyer and Determiner shall bée directed as is aforesaid And all Presentments Trials Processes Iudgements Executions and forfeitures hereafter to be had made or done by vertue of such Commissions shal be good and effectuall in the law to all purposes Any graunt custome or vsage to the cōtrarie notwithstanding c. After that by the Statute made an̄ 1. 2. P. M. it was enacted That all trials hereafter to be had St. 1. 2. P. M. 10. awarded or made for any Treason shal be had and vsed onely according to the due Order and Course of the common law of this Realme not otherwise Quaere whether this Statute of 1. 2. P. M. doth repell or take away the force of the before rehearsed Statute of 32. H. 8. St. 33. H. 8. 20. 33 By a statute made an̄ 33. H. 8. it was established The force of attainder of treason by the common law That if any person or persons shal be attainted of high Treason by the course of the common laws or statutes of this Realme in euery such case euery such attainder by the cōmon law shal be of as good strēgth value force effect as if it had bin done by authoritie of Parliament And the king his heires and successors shall haue as much aduantage by such attainder as well of vses rights entries conditions and possessions reuersions remainders and all other things as if it had béene done and declared by authoritie of Parliament and shal be deemed and adiudged in actuall and reall possession of the lands tenements hereditaments vses goods chattels and all other things of the offendors so attainted which his Highnesse ought lawfully to haue and which they so béeing attainted ought or might lawfully loose and forfeit if the attainder had béene done by the authoritie of Parliament without any office or inquisition to be found of the same Any Law Statute c. notwithstanding Sauing to all and euery perfect and persons and bodies politique and their heires assignes and successors and euery of them other than such person and persons which shall be attainted of high Treason and their heires and assignes and euery of them and all and euery other person and persons claiming by them or any of them or to the vses of any of them after the said Treasons committed all such right title vse possession entrie reuersions remainders interests conditions fees offices rents annuities commons leases and all other commodities profits and hereditaments whatsoeuer they or any of them should might or ought to haue had if this Act had neuer bin made 34 Because through corruption or negligent kéeping the Records of attainders of Treasons happen to be many times impaired blemished or otherwise to be defectiue St. 29. El. 2. therefore by a Statute made an̄ 29. El. it was ordained That no Record of attainder that now is of any person or persons No record of attainder shall be reuersed when the offendor is executed of or for any high Treason where the partie so attainted is or hath béene executed for the same Treason shall by the heire or heires of any such person or by any other whatsoeuer clayming in by from or vnder any such heire or heirs be in any wise hereafter reuersed vndone auoyded or impeached by any plea or for any error whatsoeuer But this Act shall not extend to any Record of attainder of or for any treason vpon which any writ of Error is now depending or which Record is already reuersed repealed or vndone by or for any error matter plea or cause whatsoeuer but the same shall be and remaine as vnto and against that partie at whose suit the same writ of Error is depending or at whose pursuit the same Record hath bin reuersed repealed or vndone his their heires and assignes onely as if this Act had neuer beene had or made Any thing in this Act c. M. 33. H. 8. Dyer 50. 35 If an offence be murder or other felonie by the common lawe Felony made treason by Statute and after the same offence shal be made treason by a Statute Then it is not punishable as murder and felonie but as Treason And no appeale will lie thereof and the Kings pardon of all Treasons will discharge the offendor therein An English traitor subiect to another prince 36 If an English man borne beeing indicted of high Treason P. 13. El. Dyer 300. will vpon his arraignment plead that he will not answer to the said indictment for that he is a subiect and seruant to a forraine Prince and not subiect to the King of England in this case the Court will record a Nihil dicit and he shall haue such iudgement as is vsed in cases of Attainder of Treason An alien borne committeth treason 37 If an alien borne doe commit high Treason in England in the time of peace betwéen England and that Nation where the same alien was borne P. 3. 4. P. M. Dyer 140. H. 33. H. 6. 1 he shal be indicted and arraigned of high treason and shall haue iudgement according to his desert But if it were in the time of warre betwéene England and that nation where the said alien was borne then the alien shall be ransomed and not arraigned Ioyning the kings armes with his owne 38 An Earle of this Realme was attainted of high treason
a statute made Anno 1. Ed. 4. it was ordained That vpon all Indictments and Presentments which shall bée taken before any of the Shirifes of Counties for the time béeing their Vndershirifes Clerkes Baylifes or Ministers at their Turnes or Law-daies they nor any of them shall haue power or authority to arrest attach or put in prison or to leuy any fines or amerciaments of any person or persons so indicted or presented by reason or colour of any such Indictment or Presentment taken before them or any of them or to leuy or take of any such person or persons so indicted or presented any fine or ransome But the said Shirifes vndershirifes Baylifes or Ministers shall bring present and deliuer all such Indictments and Presentments taken before them or any of them in their Turnes or Law-daies to the Iustices of the Peace Indictments taken in the shirifes Turnt shal be deliuered to the Iu. of peace at their next Session of the Peace which shal be holden in the County or Counties where such indictments and presentments shal be taken And if any of the said Shirifes Vndershirifes Clerkes Baylifes or Ministers doe not bring deliuer or present all such indictments or presentments so taken before them and euery of them in their Turnes or Law-daies as is aforesaid to such Sessions of the peace before the said Iustices then the said Shirifes Vndershirifes Clerkes Baylifes and their Ministers and euery of them which shall faile of the bringing deliuering or presenting of such Indictments or Presentments shal forfeit to the king forty pounds so often as they or any of them shall doe the contrarie And the said Iustices of peace shal haue power and authority to award proces vpon such Indictments and Presentments as the Law doth require Proces vpon Indictments awarded by I. of peace and in such like manner as if the said Indictments and Presentments had bin taken before the said Iustices of Peace in the same County or Counties and also to arraigne and deliuer all person and persons so indicted and presented before the said Shirifes Vndershirife their Clerkes Baylifes or Ministers or any of them in their Turnes or Lawdaies and to set such fine vpon euery person or persons indicted or presented of Trespas as it shall séeme good to their discretions And the Estreats of the same fines and amerciaments shall be inrolled and by Indenture deliuered to the said Shirifes Vndershirifs Clerks or Ministers or to some of them to the vse and profit of him which was shirife of the County at the time of the taking of such indictments or presentments And if any of the said Shirifes Vndershirifes Clerkes Bailifes or ministers shall cause to be arrested attached or put in prison or shall cause to be raised or taken any fine or ransome or leuy any amerciament of any person or persons so indicted or presented by reason or colour of any such indictment or presentment before him taken at his foresaid Turne or Law-day before they haue proces from the said Iustices of Peace or Estreats deliuered out of the said indictments or presentments so brought deliuered or presented vnto them then the shirifes which doe so shall forfeit an hundred pounds wherof the one moitie shal be imployed towards the expences of the kings house and the other to the party or parties that shal be endaÌ„maged And he or they shal haue an action of Debt at the common law and like proces as is vsed in an action of Debt at the common law wherein the defendants shal not be essoined wage their law Indictments in London nor haue any protection But this Ordinance shall not extend or be preiudiciall to the shirifes of the city of London touching indictments or presentments to be taken before them in the said city Neither shall this ordinance extend or be preiudiciall to any person or persons that haue graunt of any fines or other amerciaments by any letters patents of the king or of any of his progenitors or predecessors bearing date before the x. day of December next after the beginning of this Parliament being An. Dom. 1461. B This statute doth giue authority to Iustices of peace to award proces vpon all indictments taken in the shirifes Turne when they be brought and deliuered vnto them But yet it is alwaies intended That those Indictments shal be lawfull The shirife inquiring of things not inâ—uirable in 〈◊〉 Turne and containe matter whereof the Shirife hath iurisdiction in his Turne and power to make inquirie For if the Shirife in his Turne will make inquiry of the statute of Liueries 4. E. 4. 31. 8. E. 4. 5. or indict one who did feloniously rauish a woman or such other matters which be not inquirable in the shirifes Turne although he wil bring the indictments before the Iu. of peace and deliuer them according to the foresaid stat of 1. Ed. 4. yet they ought not to award proces vpon them for they were taken coram non iudice and so void 7 And for that Enquests were sometimes taken without being duly returned by the shirife of such persons as were outlawed before Iustices of Record and of some such as were fled to sanctuary for Felony or Treason to haue refuge by whom sometimes not only offendors were indicted but also seueral of the kings liege people not guilty by the conspiracie abbetment and false practise of others for their owne speciall aduantage and priuat gaine for the auoiding whereof there was a statute made Anno 11. H. 4. which doth enact St. 11. H. 4. 9 That no indictment shal be made by any such persons but by enquests of the kings liege people as it hath bin vsed in the time of the kings progenitors duly returned by shirifes or bailifes of Franchises without any maner of denomination before made to the said shirife or bailifes of Franchises by any person of the names of those who shal be impanelled by him Iurors in indictments shal be returned by the shirife without denomination vnlesse it be by the officers of the said shirifes or bailifes of Franchises knowne or sworne thereunto and other ministers to whom it appertaineth by the law of England to make the same And if any indictment be made in any point to the contrary the same shal be void reuoked and of no force According to this statute some haue béen discharged of their Indictments B. because certaine of the Indictors were before that outlawed of Felony This statute of Anno 11. H. 4. is altered by the next statute of Anno 3. H. 8. for so much onely as doth concerne denomination to be made by the Iustices 11. H. 4. 40. St. 3. H. 8. 12. for the reformation of Panels returned before them by the Shirifes when the said Iustices will haue the same Panels reformed But for all the residue it continueth in force 8 The whole authority of returning of Enquests to make Indictments without the denomination of
6. 28 for then was not the plaintife lawfully acquit according to the Statute of Westminst 2. Iudgement in conspiracie 12 When any is conuict in a writ of Conspiracie at the suit of the partie the iudgement is none other but that the plaintife shall recouer his damages 43. E. 3. 33. and that the defendants shall bée taken But if one be indicted and conuicted of conspiracie at the Kings suit the iudgement is more grieuous for then the iudgement is That they shall loose their frée law to the intent 27. As p. 59 46. As p. 11. 24. E. 3. 34. that they shall not after that time be put in Iuries or Assises nor otherwise produced as witnesses to testifie truth and if they haue to do in the Kings Court they shall make their Attourney to sue for them and that they shall not approach within twelue miles of the Kings Court and that their lands goods and cattels shall bée seised into the Kings hand and their houses wasted and their wiues and children thrust out of doores and their trées pulled vp by the rootes and their bodies taken and imprisoned And this is tearmed a villainous iudgement because it bringeth villanie and shame to him that receiueth it 13 And because that wicked offence of conspiracie should bee inquired of and punished as well by indictment as by writ there was a Statute made Anno 28. Ed. 1. called Articuli super chartas whereby it was ordayned St. 28. E. 1. That in right of Conspirators false informers and imbracers of Enquests Assises and Iuries the King hath prouided remedie by a Writ out of the Chauncery And from henceforth the King will that his Iustices of the one Bench the other and the Iust assigned to take Assises Inquirie of Conspiracies by Iustices when they come into the countrey to do their office shall make enquiry thereof at any mans plaint without writ Register fo 118. and shall without delay do right to the plaintifes And the Iustices may be commaunded by a writ directed vnto them out of the Chancery to execute the same statute although the statute of it selfe is a sufficient warrant and authoritie for them so to doe which remedie mentioned in the foresaid statute was intended to be ordained by another statute called the statute of Conspirators St. 20. E. 1. made Anno 20. Edw. 1. at Berwike vpon Tweed which doth prouide a writ of Conspiracie against conspirators maintainers of false quarels and champertors and expresseth the forme of that writ St. 28. Ed. 1 14 But because the foresayd Statute of Articuli super chartas did prouide onely a remedie at the plaint of the partie and did not giue the Iustices in the sayd Statute mentioned power to enquire of heare and determine conspiracies at the suit of the King neither did it giue authoritie to the said Iustices to adiourne the suit if for shortnesse of time it could not be determined in the countrey St. 4. E. 3. 11. Therefore by a statute made Anno 4. Edw. 3. Inquirie of conspirators at K. or parties suit the same enormities were redressed by these words viz. Where in times past diuers people of the Realme as well great as other haue made alliances confederacies and conspiracies to maintaine parties pleas and quarels whereby diuers haue béene wrongfully disherited and some ransomed and destroyed and some for feare beeing maymed and beaten durst not sue for their right nor complaine nor the Iurors of Enquests giue their verdicts to the great hurt of the people and slaunder of the Law and common right Therefore it is agréed that the Iustices of the one Bench and of the other and the Iustices assigned to take Assises whensoeuer they come to hold their Sessions to take Enquests vpon Nisi prius shall enquire heare and determine as well at the Kings suit as at the suit of the partie of such maintainers bearers and conspirators and also of champertors and of all other things contained in the sayd Article as well as Iustices in Eire should doe if they were in the same Countie And that which cannot be determined before the Iustices of the one Bench or of the other vpon the Nisi prius for shortnesse of time shall be adiourned into the places whereof they be Iustices and there shall be determined according to right and reason 15 Notwithstanding the foresaid Statutes there were such deuises and practises to execute malice and reuenge and desire to put others in perill of their liues lands and goods that some would frame indictments or appeales against others of the K. good and obedient subiects of Treason Felony or trespas in seuerall forrein counties liberties and franchises where the said persons did neuer dwel nor conuerse and there they were pursued to the Exigent and sometime outlawed before that they could know of it For the remedie whereof there was a stat St. 8. H. 6. 10 made Anno 8. H. 6. wherein amongst other things it was enacted That if any person shall be indicted or appealed of felony Procurers of an indictment or appeale in a forrein county treason or trespas in a forein county he shal in an action vpon the case recouer treble damages against euery procurer of such indictment or appeale after hee is duly acquited by verdict And the like proces shal be in the same as in an action of Trespas vi armis S. Appeales 61. An offence supposed to be in a place where there is none such 16 Because diuers people vpon malice enuie and desire of reuenge did ofttime cause the K. liege people to be appealed or indicted in diuers counties of Treasons or Felonies supposing by the said appeals or indictments that the said Treasons or Felonies were committed in one certaine place whereas there is no such place within the said county where the said indictmēt is found nor any such place in the county as is declared by the said Appeale Therefore by the stat made anno 7. H. 5. anno 9. H. 5. anno 18. H. 6. it was ordained St. 9. H. 5. 1. St. 18. H. 6. 12. That the said Appeals and indictments and the proces thereupon shal be void and adiudged of no force And that the said Appellées and Indictées may haue their writs of Conspiracie against their indictors procurors and conspirators and recouer their damages And that the indictors procurors and conspirators shal be punished by imprisonment fine and ransome for the K. aduantage by the Iustices discretion ⧠The Coroner and his Authoritie and dutie in Felonies c. 1 A Coroner is an antient officer of trust in this realm The Coroners Office ordained to be a principall preseruer and kéeper of the peace to make record of the pleas of the Crown and of his owne view and of abiurations and of outlawries and of Appeales and accusations of felons made before him and of nonsuits of plaintifes in Appeales and of all
take reward of any who will fréely licence all persons to prosecute their right giue full eare to the widowes complaint further the cause of the orphan and fatherlesse and suffer none that hée can helpe to receiue wrong who will not feare the countenance of the mightie nor disdaine the basenesse of the poore whom neither hatred fauor or priuat affection will moue but without respect of persons will yéeld to each wight that which his cause requireth who will remember and neuer forget that God hath endowed him with knowledge and vnderstanding Ecclesiast 17 that he hath made a couenant with him to shew him what true iustice and iudgement is that all his actions bée continually in Gods sight and that euerie moment from heauen the King of Kings doth behold them And finally who duely respecting both the commissions which he hath receiued from God and his prince will so indifferently temper iustice with mercie towards the poore prisoner standing trembling before him at the barre as he will hope for mercie when himselfe shall make his last and great account before the God of iustice and mercie 2 Whereas diuers antient Prerogatiues and Authorities of iustice appertaining to the Crown of this Realm were seuered and taken from the same by sundrie gifts of the Kings Progenitors Kings of this Realme to the great diminution of the royall estate of the same and to the hindrance and delay of iustice St. 27. H. 8. 25. for the reformation whereof by a Statute made Anno 27. H. 8. it was enected That no person or persons of what estate condition None shall make Iustices but the King or degree soeuer they bée shall haue any power or authoritie to make any Iustices of Eyre Iustices of Assise Iustices of Peace or Iustices of Gaole deliuerie but that all such Officers and Ministers shall bée made by Letters Patents vnder the Kings great Seale in the name and by authoritie of the King and his heires Kings of this Realme in all Shires Counties Counties Palantine and other places of this Realme Wales and the Marches of the same or in any other his Dominions at their pleasure and wills in such maner and forme as Iustices in Eyre c. bée commonly made in euerie Shire of this Realme Any graunts vsages Acts of Parliament or other thing notwithstanding The Iudge vpon the arraignment of a Péerâ—e of the Realme 3 When a Péere of the Realme and Lord of the Parliament 1. H. 4. 1â— 13. H. 8. 13. 10. Ed. 4. 6. is to be arraigned vpon any Treason or Felonie whereof he is indicted and whereunto he hath pleaded not guiltie the King by his letters patents shall assigne some noble and sage Lord of the Parliament to bee high Steward of England for the day of his arraignement who before the same day shall make a Precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him xviij or xx Lords of the Parliament vpon the same day c. S. Triall 2. 4 Where Treasons Misprisions of Treasons Murders Manslaughters and other malicious strikings by reason whereof blood hath béen shed against the K. peace were often committed within the limits of the Kings palace or house or other houses where his Maiestie was abiding in his royall person which offences when they be done be best knowne by his Highnesse Officers of his houshold and by his seruants of his Checke roll And if his Maiesty shall happen to remoue from such his palace or house or other house where such offences were done before the tryall and determination thereof then such offences might not lawfully be tryed heard and determined by and before the sayd Officers but bée remitted to bée tryed and determined by the order of the Common law by reason whereof the punishment of the sayd offendors in such cases hath beene long time delayed and sometime their offences forgotten and not remembred and so they escaped vnpunished For the redresse whereof by a Statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 12. That all Treasons Misprisions of Treasons Murders Manslaughters Bloudsheds and other malitious strikings by reason whereof bloud shall be shed against the Kings peace which shall bée done within any the Palaces or houses of the King or his heires or within any other house or houses at such time as his Maiestie shall bée then abiding in his royall person shall bee inquired of tryed heard and determined within any of the Kings houses or other house where his Maiestie shall bée abiding Iudge of treasons and felonies committed in the K. house before the Lord Steward of the Kings houshold and in his absence before the Treasorer and Comptroller of the K. houshold and Steward of the Marshalsey for the time beeing or two of them whereof the Steward of the Marshalsey to bee one by vertue of their offices without any Commission or other authoritie to them giuen And whether the King shall bée remooued from the house where such offences shall bée done or not before they be inquired of heard and determined yet such offences shall be inquired of tryed heard and determined before the Kings Officers of his houshold before named or two of them by the Inquisition and verdict of his houshold seruants in his Checke roll at such Palace or house where his Maiestie shall bée at any time abiding in manner and forme as is hereafter expressed The two Clerkes Comptrollers Clerkes of the Checke and Clerkes Marshals for the time being of the K. houshold or one of them vpon a Precept to them or any of them made by the Lord Steward or in his absence by the said Treasorer and Comptroller of the Kings houshold and the said Steward of the Marshalsey or by two of them whereof the sayd Steward of the Marshalsey to be one shall haue power to summon warne and returne the names of twentie foure persons being yeomen officers of the Kings sayd houshold in the sayd Checke roll to inquire of such Treasons Misprisions of Treasons Murders Manslaughters and other malitious strikings by reason whereof bloud shall bée shed against the Kings peace before the sayd Lord Steward and in his absence before the sayd Treasorer Comptroller and Steward of the Marshalsey or before two of them at the least whereof the Steward to bée one And it shall bee lawfull to the sayde Lord Steward and in his absence to the sayd Treasorer Comptroller and Steward of the Marshalsey aforesayd or two of them whereof the sayd Steward to bée one before whom such Returnes shall bée so made as is aforesayd to cause such number of the sayd foure and twentie persons so returned aboue the number of twelue persons as to him or them shall séeme expedient to inquire of such Treasons Misprisions of Treasons Murders Manslaughters or other malitious strikings by reason whereof bloud shal bée shed against the Kings peace
within the sayd Palaces or other the sayd houses at any time committed And if any person or persons bée indicted by the sayd Iurie so sworne before them as is aforesaid or by Inquisition before the Coroner of the sayd houshold and certified before the sayd Lord Steward or in his absence before the sayd Treasorer Comptroller and Steward of the Marshalsey or two of them whereof the sayd Steward of the Marshalsey to bee one Then immediatly the said Lord Steward or c. Treasorer Comptroller and Steward of the Marshalsey or two of them whereof c. before whom the sayd Presentment Inquisition or Indictment shall bée so found or certified by the sayd Coroner shall arraigne before them euerie such person so indicted according to the course of the common law and forthwith after issue ioyned betwéene the King and the prisoner so arraigned the same day and place or any other shall make another Precept to the sayd Clerks Comptrollers Clerkes of the Checke and Clerkes Marshals of the said houshold or to one of them to summon and returne one Iurie of foure and twenty persons to appeare before the sayd Lord Steward or c. Treasorer Comptroller and Steward of the Marshalsey or two of them whereof the sayd Steward of the Marshalsey to be one at such day time and place and vpon such paine as shal be then limited of the Serieants and Gentlemen Officers of the Kings chamber and of the sayd houshold which shall take wages by the K. Checke roll And the sayd Steward or c. Treasorer Comptroller and Steward of the sayd Marshalsey or two of them whereof the sayd Steward to be one before whom such Iurie shall bée so returned shall cause twelue of the same Iurie to bée sworne truely to try between the King and such person as shall bée so indictected and arraigned of such Treasons Misprisions of treasons Murders Manslaughters and other malitious strikings by reason whereof bloud shall bee shed against the Kings peace or any of them And if any such person or persons so arraigned be found guiltie of any Treason Misprision of Treason Murders or Manslaughters then hee shall haue iudgement of life and member and suffer such paines of death and shall forfeit all their mannors lands tenements goods and cattels in like manner as if the same person and persons had beene found guiltie of any of the sayd offences by the order of the common law without the benefit of Clergie or Sanctuarie Prouided alwayes that the tryall of Peeres for any offence before mentioned shal be as it hath beene vsed in times past St. 3. H. 7. 14 5 By the stat made Anno 3. H. 7. it was ordayned That the Steward Treasorer Iudges of conspiracie in the K. house and Comptroller of the Kings house for the time beeing or one of them shall haue authoritie to inquire by twelue sad men and discréet persons of the Checke rol of the Kings houshould if any seruant admitted to be his seruant sworne and his name put in the Checke roll of his houshold whatsoeuer he be seruing in any office or roome reputed and taken vnder the estate of a Lord make any confederacies coÌ„passings conspiracies or imaginations with any person or persons to destroy or murder the K. or any Lord of this realm or any other person sworne to the kings Counsel Steward Treasorer or Comptroller of the Kings house And if it be found before the said Steward for the time being by the said xij sad men that any such of the K. seruants as is abouesaid hath confederat compassed conspired or imagined as is abouesaid hee so found by the inquirie shall bee put thereupon to answer And the Steward Treasorer and Comptroller or two of them haue power to determine the same matter according to the law and if he put him in tryall then it shall bée tryed by other twelue sad men of the said houshold And if such misdoers shall be found guiltie by confession or otherwise the said offence shall be iudged felonie S. Felonie by Stat. 1. Iudges within the Verge 6 The Iustices of the Kings Bench the Iustices of Oyer and Terminer Co. li. 4. 47. Iustices of Gaole deliuerie and Iustices of Peace haue power to inquire heare and determine all murders and felonies within the Verge for that their authoritie and iurisdiction is generall through the whole countie and so it hath beene alwayes vsed 7 The Iustices of the Kings Bench Iudges of the K. Bench. without hauing Commission may heaâ—e and determine all maner of Treasons and Felonies And by the Stat. of Anno 35. H. 8. Anno 5. Ed. 6. it is enacted St. 35. H. 8. 2 St. 5. E. 6. 11 That all manner of offences being alreadie made or declared or hereafter to be made or declared by any laws and statutes of this Realme to be Treasons Misprisions of Treasons or concealments of Treasons done perpetrated or committed or hereafter to bee done Iudges of Treasons committed beyond the Sea perpetrated or committed by any person or persons out of this Realme of England shall bee inquired of heard and determined before the Kings Iustices of his Bench for Pleas to be holden before himselfe Dy. fol. 287 298. by good and lawfull men of the same Shire where the sayd Bench shall sit and be kept or else before such Commissioners and in such Shire of this Realme as shall bée assigned by the Kings Commission and by good and lawful men of the same Shire in like manner and forme to all intents and purposes as if such Treasons Misprisions of Treasons and concealements of Treasons had béene done and committed within the same Shire where they shal be so inquired of heard and determined Prouided alwayes that if any Peeres of this Realme shal be indicted of any such Treasons or other offences then they shall haue their triall by their Péeres as heretofore hath béene accustomed 8 By the Stat. intituled De finibus St. 27. E. 1. 2. St. 4. E. 3. 2 made Anno 27. Ed. 1. and also by the stat of Anno 4. E. 3. it is ordayned That good and discréet persons other than of the Benches Iudges of gaole deliuery if they may be found sufficient shal be assigned in all the shires of England to take Assises Iuries Certifications and to deliuer the gaoles And the Iustices assigned to deliuer the gaoles shall haue power to deliuer the same gaoles of those that shal be indicted before the gardeins of the peace And the said gardeins shall send their indictments before the Iustices And they shall haue authoritie to inquire of Sherifes Gaolers and others in whose ward such indicted persons shal be if they make deliuerance or let to mainprise any so indicted which be not mainpernable and to punish the said Sherifes Gaolers St. 3. H. 7. 1 and others offending against this Act. And by the stat of An. 3. H. 7. it is
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
to the plaintife was of the plaintifes owne assault and in defence of the defendant Iustifiing in his owne defence And likewise it is a good plea in barre in an appeall of maihem for the defendant to plead the plaintifs release made vnto him after the supposed offence done of all actions personals or of all actions The plaintifes release or of all appeales or of all demaunds for in this case the plaintife is but to recouer dammages 7. H. 4. 30. 66 If an appeal of maihem be brought against diuers Execusion in appeal of maihem one of them doth appeare in court and confesse the maihem and is committed to the Marshalsea and the plaintife hath iudgement against him he can not sue against the residue vnlesse he will suffer him that hath confessed the maihem to goe at liberty for if he hath iudgement and the body of him who confessed the maihem to remaine in prison that shall be an execution for this whole maihem 67 The Sages and Iudges of the land in former ages did hold it for law An action of Trespas after an appeal of maihem that if one doe assault Fitz. Coron̄ 110. 22. Ass p. 82 beate and maihem an other and the partie maihemed doth bring an appeall of maihem against the offendor and recouer dammages against him yet after he may haue an action of Trespas of assault and battery against the same offendor and recouer dammages for his beating and the recouerie of dammages in the appeal of maihem shal be no plea in barre against the plaintife for the appeal doth only medle with the maiheming not with the beating But if the plaintife do bring an appeal of maihem in the Kings bench 43. Ass p. 39 and after apparance be nonsuit in the same and then doe bring an action of Trespas of assault and batterie for the same fact Then the defendant may plead the same appeal and nonsuit in barre against the plaintife and it is a good plea. 41. Ass p. 16 Co. Lib. 4. 43. But of late yeares viz. An̄ 31. Eliz. it was adiudged that in this and all cases when the plaintife for one wrong and iniurie is but to recouer dammages he shall not be for that cause satisfied twice for one offence And in these two actions of appeal of maihem and trespas the plaintife shall onely recouer dammages And therefore it was adiudged a good plea in barre in an appeal of maihem to plead that the plaintife had before brought an action of Trespas against the defendant of assault battery wounding and had recouered dammages therein and to auerre that the same assault batterie and wounding and this maiheming were all one offence 68 As the law hath prouided remedies to punish those who by menace Restraint of affraies by Iustices of peace assault battery imprisonment or maiheming do breake the peace So hath it alwaies had a vigilant eie by anticipation to preuent many others that would breake the peace by any of the meanes aforesaid and therefore hath from age to age appointed méet magistrates and watchmen to whose charge specially as selected Sentinels she did commit the preseruation of the peace who in times past before the raigne of King Edward the third were called Conseruators of the peace Stat. 1. E. 3. 26. and sithence they haue béen termed Iustices of peace because they be Iudges of record or otherwise they be named Commissioners of the peace because they haue and deriue their authority by the Kings Commission who him selfe being the chiefe and generall Conseruator and Preseruer of the peace throughout all his Dominions doth by his seuerall Commissions commit some particles of his authoritie touching the continuance of the peace and maintenance of certaine of his Lawes to some chiefe and select men in all the parts of the Realme whom he taketh to be the most méete men for the same in respect of their integritie wisdome learning courage and liuelyhood The forme of so much of which Commission as toucheth the Peace and good Abearing is this Iacobus c. praedilecto fideli Conciliario nostro Thomae domino Elsmere domino Cancellario nec non praedilectis A.B.C.D.E.F.G. H.I.L.M.N.O.P. c. The Commission of the Peace Sciatis quod assignauimus vos coniunctim diuisim quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro buck conseruand ' ac ad omnia ordinationes Statuta pro bono pacis nostrae ac pro conseruatione eiusdem pro quieto regimine gubernatione populi nostri aedita in omnibus singulis suis articulis in dicto comitatu nostro tam infra libertates quam extra iuxta vim formam effectum eorundem custodiend ' custo dire faciendum Et ad omnes contra formam ordinationū vel Statutorum illorum aut eorum alicuius in comitatu praedicto delinquentes castigandū puniendum prout secundum sormam ordinationū Statutorū illorum fuerit faciendum Et ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorū suarum minas fecerint ad sufficientē securitatem de pace vel bono gestu suo erga nos populum nostrū inueniendam coram vobis seu aliquo vestrum venire faciendum Et si huiusmodi securitatem inuenire recusauerint tunc eos in prisonis nostris quousque huiusmodi securitatem inuenirent saluo custodire faciendum Et ideo vobis cuilibet vestrum mandamus quod circa custodiam pacis ordinationum Statutorum omnium singulorum caeterorum praemissorum diligenter intendatis Et ad certos dies loca quae vos vel aliqui duo vel plures vestrū vt praedict ' est ad hoc prouideritis super praemissis faciatis inquisitiones premissa omnia singula audiatis terminetis ac ea faciatis expleatis in forma praedicta factur̄ in de quod ad Iusticiam pertinet secundū legem consuetudinem Regni nr̄i Angliae saluis nobis amerciamentis alijs ad nos inde spectantibus 69 And though there be many other offences mentioned in the said commission which the Iustices of peace are by force of the said Commission to enquire of heare and determine and to punish the offendors therin according to the lawes and Statutes of the Realme Yet as it appeareth by the words of the said commission the same hath his chiefe care and respect of the peace to the preseruation thereof And to the intent that the said Iustices or commissioners should the better remember and respect their charge and dutie they are called Iustices or commissioners of the peace and not commissioners of justice of conscience or equitie c. And so their names together with their offices and duties be in a sort written in their foreheads And the restraining or punishment of all the other offences mencioned in the said
commission do only tend to the maintenance of justice the roote foundation and supporter of peace And whereas the King by the words of the said Commission doth appoint the persons therin named his Iustices to preserue his peace The Commission doth chiefely respect the peace and to kéepe and cause to be kept all ordinaunces and Statutes made for the conseruation of the peace and the quiet gouernment of his people These Statuts amongst many others chiefly be intended Sta. 2. E. 3. 6. 18. E. 3. 2. 34. Ed. 3. 1. the Statutes of Anno 2. Ed. 3. 18. Ed. 3. 34. Ed. 3. by which it is ordained that Iustices of peace shall haue power to heare and determine at the Kings suit all manner of felonies Why they be called Iustices of Peace and Trespasses committed against the peace in the same County and to restraine offendors riottors all other barretors and to pursue take and chasten them to imprison and punish them according to their Trespas and offence and to informe them according to the said Iustices discretion And to inquire of all those that haue béen pillers and robbers beyond the Sea and become againe and goe wandring and will not labour as they had wont to doe And to take and arrest all those which they can find by inditement or suspition and to commit them to prison Binding persons suspected to their good behauiour And to take of all those which be not of good fame in the place where they remaine sufficient suertie and maineprise of their good abearing or behauiour towards the King and his people and the other duelie to punish To the intent that the people be not by such Rioters troubled or endammaged nor the peace broken nor any passengers by the way disturbed or put in perill But the fines which Iustices shall assesse vpon any person shall be reasonable hauing regard the quantitie of the Trespas and the cause 70 So that it appeareth both by the words of the said Commission of peace A Iustice taking suertie of the peace and also by the foresaid Statutes That a Iustice of peace by vertue of his office hath authoritie to preuent the breach of the peace both by taking suertie for the kéeping of it and for the good behauiour of the offendors And that he may do either of his owne motion or discretion or els at the request or praier of an other And by his owne discretion he may cause a common Barretor Rioter or one that maketh an affray in his presence or other person to him suspected to be inclyned to the breach of the peace 9. E. 4. 3. or men menacing one to hurt or kill an other or contending in whote words to finde suertie of the peace And he may perswade one man to require the suertie of peace against an other man and he himselfe after may graunt it for it is no more then he might haue done of his owne authoritie which suertie of the peace What the suertie of the peace is is a recognizance taken by the said Iustice of peace of the partie and his suerties to the King for the kéeping of the peace And as a Iustice of peace may take this suertie of peace or suertie of good abearing as a Iudge by vertue of his office So may he doe it as a minister by force of a Supplicauit directed vnto him out of the Chauncerie Taking suerty of the peace by a Supplicauit in which case he is then only to direct his precept to compell the partie vpon the writ to finde suertie of the peace Which Supplicauit out of the Chauncerie is sometime directed to one Iustice of peace alone sometime to moe and sometime to the Shirife and sometime to him with others And then the same Iustice or Iustices of peace or Shirife must make retorne of the said writ of Supplicauit and a Certificat of his doing into the Court from whence the same was awarded And if the said Iustice of peace shall take the said Recognizance for the kéeping of the peace by vertue of his office Sta. 3. H. 7. 1 then by force of the Statute of Anno 3. H. 7. he shall certifie sende Certificat of a Recognizance or bring the same Recognizance at the next Sessions of the peace where he is or hath bin Iustice that the party so bound may be called And if the partie make default the same then there to be recorded And the same Recognizance with the record of that default shall be sent and certified into the Chauncerie the Kings Bench or into the Exchequer Suertie of good abearing And the suertie of good abearing is granted by authority of the foresaid commission of peace by the warrant of the before rehearsed statut of 34. E. 3. aswell as the suerty of peace is it is ordained for the preseruation of the peace it doth differ in nothing frō that of the peace but that there is more difficultie in the performance of it and the party bound may sooner slide into the peril danger of it The suerty of good abearing is most commonly granted in open sessions or by two or thrée Iust of P. Or vpon a Supplicauit great cause shewed proued it is granted in the Chancery or K. Bench. And though one Iustice of peace alone may grant it if he will yet it is sildom done so 9. E. 4. 3. Kel fo 41. vnles it be to preuent some great sodain imminent enormity or danger The suerty of peace is most times taken at the request of one for the preseruation of the peace chiefely against one But the suerty of good abearing is oftentimes graunted at the suit of diuers and those must be men of credit and to prouide for the safetie of many for the effect and purport thereof is that the partie bound shall demeane himselfe well in his port behauiour and company and doe nothing that may be the cause of the breach of the peace or in putting the people in feare or trouble And it is chieflie graunted against common Barretors common rioters common quarrellers common peace breakers and persons greatly defamed for resorting to houses suspected to maintaine incontinencie or adulterie and against those that be generally feared to be robbers or spoilers of the Kings people or which doe endamage disturbe trouble Articles exhibited to haue good abearing granted or put in peril passengers by the way Co. li. 4. 14. And therefore if one doe exhibit Articles to Iustices of peace against a certaine person comprehending diuers great abuses and misdemeanors not onely touching the Petitioner himselfe but many others to the intent that the same person may be bound to his good behauiour in this case the partie so accused shall not for any matter conteined in the said Articles maintaine an action vpon the case for the party or parties who exhibited the said Articles haue pursued an ordinarie course
County that he will so that he dwell within a conuenient distance and not too farre from the parties owne habitation But if a Supplicauit of the peace be directed to the Iustices of the peace the Iustice to whom the writ is first deliuered shall only make the precept to apprehend the partie to find suerty of the peace and that precept shall be retornable before him only and he only shall take the suerties and only make the retorne without the others Co. lib. 5. 59 And a Iustice of peace may if he will make a warrant to the Constable to bring the partie before himselfe 5. Ed. 4. 12. 76 If a Iustice of peace doe direct his warrant to the Constable A warrant to find suertie to keepe the peace or some other to cause A.B. to finde suerties to kéepe the peace The same Constable or c. must first require the same A.B. to find suerties to kéepe the peace and if he doe refuse it then he may arrest the same A. B. for if A. B. will finde suerties then the said Constable may not arrest him because the purport of the precept is performed which is if he refuse so to doe that then he shall conuey him to the Gaole And if the Constable shall arrest A. B. after that he hath found suerties according to the precept the same A. B. may haue an action of false imprisonment against him for that he hath arrested and imprisoned him without warrant or cause And likewise if the Constable do arrest A. B. and doe not carrie him before some Iustice of peace 5. E. 4. 6. to find suerties to kéepe the peace or if he resist or refuse so to doe then if he doe not carrie him to the Gaole A.B. may haue an Action of false Imprisonment against the Constable The partie must offer his suerties And when the partie commeth to the Iustice of peace by force of a warrant he must offer suerties to the Iust of P. or else he may commit him to prison 14. H. 7. 5. for the Iust néedeth not to demaund suertie of him Suerty of the peace dieth with the king 77 The suertie of peace is discharged by the kings death 1. H. 7. 1. for the band is to obserue the peace of the King and when he is dead it is not his peace So doth the death of the recognisor so doth also the death of him at whose suit it was taken discharge the suertie of the peace if in those cases it were not forfeited before The Iustices authoritie dieth with the King And in like sort when the King by his commission doth appoint Iustices of peace and after dieth or giueth ouer his crowne the Authoritie of the same Iustices doth cease for he maketh them Iusticiarios suos and therefore when he dieth their authority endeth The suertie for the peace must be named 78 When a Iustice of peace doth take suerties for the peace 2. H. 7. 4. it is not sufficient to say that I. N. hath found sufficient suertie for the peace without naming the names of the suerties but he must name their names and surnames He that is vound to the peace must appeare c. 79 If a man doe finde suerties to kéepe the peace 39. H. 6. 26. and hath day vntill a time prefixed he must appeare the same day although he who demaunded the peace doe not appeare or otherwise he shall forfeit his band But it is otherwise where a suit is betwéene party and party and the defendant being taken by a Capias is bound to appeare vpon a day appoynted 80 When the suertie of peace is graunted against a man by a Iustice of peace he will sometime rather desire to be bound to the peace by an other Iustice then by him that graunted the same and made the warrant And therefore he may offer himselfe to become bound to the peace to some other Iustice of peace of that County if he will A Supersedeas for the peace then procure a Supersedeas from that other Iustice before whom he is bound to all other Iustices of that Countie to be discharged of any other arrest to be made of him for the law doth not require that he should be seuerall times bound for one cause And this Supersedeas is sufficient although it neither name the suertie nor contein the summes wherin they are bound but yet it is a better forme to expresse them both as the Chauncerie and Kings Bench doe And when a man doth heare of such a precept awarded or granted against him by a Iust of peace of the County where he dwelleth he may go eyther giue suertie of the peace in the K. Bench or els in the Chancery thereupon may procure a Supersedeas from the court where he is bound to restrain the Iust of peace of the County to take any suertie of peace of him And then the Iustices of peace of that County must forbeare to make any warrant for the peace against the partie and if any of them haue awarded it A precept awarded by force of a Supplicauit he must make a Supersedias to discharge it But a Iust of peace of the county by a Supersedeas cannot discharge a precept that is awarded by his felow Iust by force of a Supplicauit directed to him out of the Chancery or the K. Bench to take the suertie of peace of one resident in that County If any officer hauing a warrant from a Iust of P. to arrest a man to find suerty of the peace shall receiue a Supersedeas out of the Chancery or the Kings Bench or from any Iustice of the Kings Bench or from any Iustice of peace of that County where he is commorant to discharge the same suerty of peace wil neuertheles vrge that partie against whom the same warrant is granted to find new suertie for the peace he may refuse to giue it And if the said officer will therupon vnder the color of his warrant commit him to prison the party imprisoned may haue an action of false impris against him for the the said warrrant is discharged by as great authoritie or greater as it was made and the thing for the which it was made is effected The forme of which Supersedeas graunted by a Iustice of the peace is this viz Thomas Denton Miles Buck. vnus Iusticiariorum dn̄i Regis nunc ad pacem in Comitatu p̄dicto conseruandum assignatur Vicecomiti comitatus praedicti A Supersedeas for the peace Nec non cibus singulis Balliuis Constabularijs ceterisque dicti dn̄i Regis ministris tam infra libertates quam extra in eodem Con̄i Salutē Quia A. B. de Poundon in com̄ praedict ' Laborer venit corā me in venit sufficientē securitatur qd'ipse comparebit ad proximā generalē Sessionē pacis in com̄ praedicto tenend ' Et quod ipse interim pacē dicti
DnÌ„i Reg. erga ipsuÌ„ dominuÌ„ Reg. cunctuÌ„ populuÌ„ suuÌ„ precipuè erga C. D. de Twyford in comÌ„ praedicto Husbandman conseruabit ideo ex parte dicti dnÌ„i regis vobis cuilibet vestruÌ„ mando quod de arrestando imprisonando seu aliqualiter molestando praedictuÌ„ A. B. ex causa pÌ„dicta Supersedeatis quilibet vestruÌ„ Supersedeat omnio Et si euÌ„ ex dict' causa non alia ceperitis seu imprisionaueritis seu aliquis vestruÌ„ ceperit seu imprisonauerit tunc à prisona illa sâ—ne dilatione deliberari faciatis Supersedeas in the Chancery for one bound in the common plaâ—e datuÌ„ apud Hilsdon c. 22. H. 6. 59. But if a man be arrested in the common place for the suertie of peace and he is lett to baile to a certaine day at which day he doth bring a Supersedias out of the Chauncerie that he hath found suerties in the Chauncery that is not alloweable because he was by baile which is an imprisonment in law and therefore the suertie in the Chauncery will not serue And it may be that the suerties in the Chancery be not sufficient and that the King and the Court was deceiued therein And yet the common place hath no authority to take suerty of peace 2. H. 7. 1. but of the peace broken before them 81 When the partie against whom the precept is awarded to find suerties for the kéeping of the peace A Recognizance for the keeping of the peace doth come before the Iustice of peace to be bound to the peace then it resteth in the discretion of the same Iustice of peace if he deale in this cause as a Iustice of peace by force of the generall commission of peace and so as a Iudge to assigne what number of suerties he will accept to be bound with the party in what summe of money the party his suerties shall be bound to allow or disallow of the sufficiencie of those suerties to limit the time how long the party shall be bound and to determine vpon some such other circumstances touching that matter But if the same Iust of peace be commanded as a minister in the erecution of the writ of Supplicauit to take the peace of any person then he must do as the writ doth direct him which sometime is to take sufficient suertie to be bound in a summe prescribed and some other time not then it resteth in his owne discretion The most vsuall maner is for a Iustice of peace to take two suerties besides the partie himselfe to be bound by Recognizance to the King viz. Domino Regi and that must alwaies be for the kéeping of the peace The forme of which Recognizance for the kéeping of the peace is as followeth viz. Memorandum qd ' nono die Augusti Anno regni dnÌ„i nostrÌ„ Regis Iacobi dei gratia c. 5. A.B. de Padburie in Comitatu pÌ„dict ' Husbandman Buck. in ê“pria persona sua venit coram me Richardo Ingols by Milite vno IusticiarioruÌ„ dicti dnÌ„i Regis ad pacem in dicto Comitatur conseruandam assignatoruÌ„ assumpsit proseipso sub poena xx li. et D.E. H.I. de C. in Comitatur praedictur Husbandmen adtunc ibmÌ„ in ê“prijs personis suis similiter venerunt manuceperunt pro praedicto A. B. viz quilibet eorum seperatim sub poena x. li. quod idem A. B. personaliter comparebit coram Iusticiarijs dicti domini Regis ad pacem ad ê“ximam generaleÌ„ Sessionem pacis in ComÌ„pÌ„dicto apud Buck. tenendam ad faciendum recipienduÌ„ quod ei per Curiam tunc ibidem iniungetur Et quod ipse interim pacem dicti dnÌ„i Regis custodiet erga ipsum dominuÌ„ Regem cunctum populuÌ„ suum praecipue versus L.M. de O. de comitatu praedict Et quod damnum vel malum aliquod corporale aut grauamen praefatur L.M. nec alicui de populo dicti domini Regis quod in laesionem aut perturbationem pacis ipsius Domini Regis seu praefati L.M. cedere valeat quouismodo non faciet nec fieri procurabit Quam quidem summam xx l' praedict ' A.B. quilibet manucaptorum praedictorum praedictas seperales summas x. l' recognouerunt se debere dicto domino Regi de terris tenementis bonis catallis suis cuiuslibet eorum ad opus dicti domini Regis fieri leuari ad quorumcunque manus deuenerunt si contigerit ipsum A.B. praemissa vel eorum aliquid in aliquo infringere inde legitimo modo conuinci In cuius rei testimonium ego pÌ„dictus Richardus Ingolsby sigillum meum apposui Datur apud Lethenborow die Anno supradict ' And the forme of the Recognizance for the good abearing is this viz. A Recognizance for the good abearing MemoranduÌ„ c. quod ipse A. B. interim se bene geret erga DnÌ„m Reg. cunctuÌ„ populuÌ„ suuÌ„ praecipuè erga L. M. Et quod ipse non inferet nec inferri ê“curabit per se nec per alios damnuÌ„ aliquod seu grauamen pÌ„fato L.M. seu alicui de populo ipsius dnÌ„i Regis de corporibus suis per insidias insultus seu aliquo alio modo quod in laesionem seu perturbationem pacis dicti dnÌ„i Regis cedere valeat quouismodo viz. vterque praedict ' D. E. et H. I. sub poena 50. librÌ„ et praedict ' A. B. sub poena 100. librÌ„ c. And this may be done by a single Recognizance in Latin with a Condition thereunto added in English for the kéeping of the peace or the good Abearing and for the day and place of the parties apparance at the Quarter Sessions 82 A Iustice of peace who vpon his owne discretion compelleth one to find suertie of the peace vntill a certaine day may vpon the like discretion release the same before that day A Releas of the suertie of peace But if a Iustice of peace do graunt the peace at the request of an other viz. at the suit of A. and that the Recognizance be taken to kéepe the peace against A. then may the same A. only releas it and none other before the same Iustice of peace or any other Iustice that will certifie the same releas before the Iustices of peace at the next quarter Sessions for that certificat being of record will discharge it which a releas by déed can not do the suertie of peace being a Recognizance and so of it selfe a record And though the Recognizance be versus cunctum populuÌ„ precipuè versus A. yet may the same A. releas it for though it may séeme populer and that others should haue equall interest therein with A. yet as it appeareth by the word precipuè it was specially taken for his safetie But though in some case a Iustice of peace may releas the suertie of the peace in some
the said Chauncellor for the King or any other against any person for any misbehauing by vnlawfull maintenances giuing of liueries signes and tokens retainers by Indentures oathes writings or otherwise embracery of the Kings subiects vntrue demeanings of Shirifes in making of pannels and other vntrue returnes by taking of money by iniuries by great Riots and vnlawfull assemblies haue authority to cal before them by writ or by priuy seale the said misdooers and they and other by their discretion by whom the truth may be knowne to examine and such as they finde therein defectiue to punish them according to their demerits after the forme and effect of the Statutes thereof made in like manner and forme as they should or ought to be punished if they were thereof conuict after the due order of the law And though the Iustices of peace doe assesse a fine in the Country vpon some that haue committed a Riot there yet the Lords in the Starre chamber may assesse vpon the said offendrs for the same Riot a greater penalty if they sée cause for in this case the offendors be not twice punished for one offence but part of the due punishment is inflicted at one time and part at another And the Lords doe sufficiently punish an offence which was but remisly done by the Iustices 3 A Riot is where thrée persons or aboue do assemble themselues together to the intent to beate or maihem a man to pul downe a house wall pale What is a Riot hedge or ditch wrongfully to claime or take common or way in a ground to destroy any parke warren douehouse pond poole barne mill or stacke of corne or to doe any other vnlawfull act with force and violence and against the peace and they doe it If a man goe abroade with his houshold seruants which he hath commonly of his owne familie though they be more then his abilitie or degrée is to maintaine and doth make a fray by the way this is no Riot vnlesse the Master did before make his seruants priuy that hée meant to make an affray for it is no riot except there be an intent before to doe some violence and hurt If thrée foure or more doe enter into landes with force vppon the possession of an other though their entrie be lawfull yet is it a Riot St. 5. R. 2. 7. for the Statute of Anno 5. Richard 2. doth prohibite entrie into Landes and Tenements with force or a multitude of people 4 An vnlawfull assembly is where thrée persons or aboue What is an vnlawfull assembly doe assemble themselues together to the intent to doe any of the Actes aforesaide or any other such vnlawfull act with force and violence against the Peace although they doe it not indéede but after their assemblie they departe by their owne consent vpon some feare conceiued or other cause without dooing of any outrage for their intent of assembling was vnlawfull though the act subsequent did not ensue according to the same 5 A Route is where thrée persons or aboue doe assemble themselues What is a Rout. for the reuenge of their owne common quarrell As if the Inhabitants of a Towne doe assemble together to pull downe a house wall pale ditch or other inclosure of a parke pasture or close or the head of a poole where they wrongfully pretend to haue title of common or a way or to beate or maihem one man or more that haue done to them all some publike offence If they once méete 17. Ed. 4. 4 procéede and goe forward towardes the execution of any of the Actes aforesaide and doe shew by Armour Gesture or Spéech that they meane to doe any violence or to terrifie or feare any of the Kings people it is a Rout whether they put their intended purpose in execution or not But if a Maior and Aldermen or Bayliffe and Burgesses or the fellowes of any societie doe assemble in their common quarrell and make a Riot Rout or Vnlawfull assembly this shall be punished in their owne priuate naturall persons and not in the body politike for it was their priuate persons that assembled to offend the Lawe and not the bodie politike If a man goe to the Sessions Market Faire Rout by wearing of Armour or other assemblie of company with his seruants in Harnesse though he hath no intent to fight or to commit any Riot yet this is a Rout by the manner of his comming and is contrary to the Statute of 2. St. 2. Ed. 3. 3 Edw. 3. which hath ordained That no man shall bring any force in affray of the peace nor shall go armed in faires markets or elsewhere vpon paine of imprisonment and forfeiture of his Armour Lawfull assemblies of thrée persons or more 6 An Assembly of thrée persons or more which is not to the terrour of the people nor to doe some Act with force and violence against the peace is not vnlawfull nor prohibited by any of the Statutes before mentioned The watch in London vpon Midsummer night is lawfull and so be such like in other Cities and Townes Assemblies be lawfull that be vsed vppon Maie day to fetch in Maie boughs or floures and so be assemblies at Church-Ales Whitson or Midsummer-Ales Assemblies at the fetching home setting vp or dauncing about a Maie-pole and assemblies at the bayting of a Bull or Beare or at the mowing or making of Dole or Reuell meade and assemblies of Minstrells and their fellowes at certaine places and times of the yéere allowed by old and ancient customes are also lawfull And Assemblies to play at Cardes Tables Bowles Clash Bucklers Wasters halfe Sword Tennis Quoits Cailes or such other games be likewise by the common lawe tollerable though some of the same games be prohibited vpon some penalties by Statute to be vsed by some persons and assemblies to runne at Quintall Sand bagge Base Footeball Stooleball Handball St. 33. H. 8. 9 or such like disports be also lawfull For these assemblies be not made with the intent to breake or disturbe the Peace or to offer violence force or hurt to the person of any but either to trie Actiuity or to increase societie amitie and neighbourly friendship And if in any of the said assemblies any of the parties the same shall make a fray with a stranger that is no Riot neither doth it make the residue of the same company Riotors who came thither for their disports and not to any euill or vnlawfull intent But if any of the same company shall fall out with a stranger or some others of their owne associates and then some of them doe take one parte and some of them another An Assembly lawfully begunne doth end riotously whereby a Riot is committed then so many of both sides as shall take sides and be parties to that quarrell shall be adiudged Riotors but not the residue for the Riot did not take his beginning at the first méeting when they did all
the same which certificat so made shall be of like force and effect in the law as if the matter contained in the same were duly found by the verdit of xij men And euery person duly proued to be a mainteinor or embraceor of the same shall forfeite to the King xx l. and shall be committed toward there to remaine by the discretion of the Iustices What one Iustice of peace may doe alone in a Riot 23 One Iustice of peace alone can neither make inquiry of a Riot Rout 7. Ed. 4. 18. or vnlawfull assemblie when it is done nor assesse any fine nor award any proces for it nor otherwise meddle with it in the nature of a Riot or Rout but only as a trespas against the peace or vpon the statute of Northampton or the Statut of 34. Ed. 3. or vpon the Stat. of forcible entries for the wordes of the foresaid Statute of 13. H. 4. be That if such trespassors or offendors be departed before the comming of the said Iustices Shirife or c. the same Iustices thrée or two of them shall diligently enquire c. So that there must be two of them at the least to make such inquirie 14. H. 7. 9. But if one Iustice of peace doe heare of any Riot Rout or vnlawfull assembly he alone with his seruants may goe to the place where the assemblie is reported to be made and if he finde any riotously gathered together he may arrest them to finde suerties of their good behauiour according to the Statute of 34. Ed. 3. Kel fo 41. he may take their weapons from them and retaine them vntill their hot bloud be cooled And if they refuse to finde suerties of their good behauiour he may commit them to prison But this must be done presently vpon the act doing for if there be any meane time he hath then no authority to commit them to prison And if he come to the place whither he doth vnderstand that some persons will repaire to commit some Riot Rout or violent act against the peace and the same persons be not yet come thither he may leaue his seruants there to restraine them from committing their intended Riots or other offences or else to arrest them to finde suerties of their good behauiour if they doe offer to commit any Riot or to breake the peacce And so may he also doe if he shall be sicke and heare of any Riot c. intended to be done he may send his seruants to represse it or to bring the offendors before him or some other Iustice of peace to finde suerties to kéepe the peace or else to commit them to the Gaole So that one Iustice of peace alone may by the warrant of the said Statute of 34. Ed. 3. doe much in preuention of a Riot c. before it be done for the stayiâ—â— of it whilest it is in dooing but nothing to punish it as a Riot when it is done for that statute of 34. Ed. 3. was made for the common profit of the Realm spéedily to interrupt and preuent present mischiefes to disperse malefactors Barretors and other Riotors in their very first méeting and encounter and so farre as may be to parte and cut off the quarrell before it grow to any head or extremity which peraduenture would not be easily pacified if one Iustice should doe nothing vntill some other of his fellowes came to assist him therein And a Iustice of peace may by word only without warrant in writing commaund his owne seruants or any of them to apprehend those that are about to commit a Riot in his presence And they may iustifie the taking of them though those Riotors be gone or fled away out of the presence of the same Iustice before his said seruants can lay hold on them 24 Although this Statute of 13. H. 4. doth not make that mention which the Statute of 8. H. 6. of Forcible entries doth touching complaint to be made to the Iustices of peace of a Riot Rout or vnlawfull assemblie but doth hinde the next Iustices of peace to doe execution of this Statute euery one vpon pain of C.li. yet the Sages of the Realme and the wisedom of the interpreters of the law The Iustices must haue notice of the Riot haue thought it reason 4. El. Dy. 210. that notice should be giuen vnto the said next Iustices thereof before they should incurre the said penaltie of C.li. vnles it be some great notorious and very perilous Riot which by common intendment euery person in those parts may take knowledge of for as the said Statute of 13. H. 4. doth relate to the Statute of 8. H. 6. touching the conuiction of offendors by the record of the Iustices So it is like that the meaning of the makers thereof was it should doe in giuing notice or making of complaint of the wrong receiued 25 If the Iustices doe assemble themselues the Shirife The parties agréement no discharge of the inquisition and the Iurie to make inquirie of a Riot within a moneth according to the Statute and after at the parties request they do not inquire of it but doe dismisse the Iurie for that the parties haue agréed betwéene themselues Yet the Iustices shall pay a fine to the King although none doe giue euidence for the King vpon that Riot for they ought to take and charge an enquest and to make enquiry of that Riot whereof they were enformed or of all Riots séeing it may be that the Iurors themselues haue knowledge of the Riot And moreouer they must make proclamation if any will enforme the Kings Iustices of any Riots Routs c. And the said Statute of 13. H. 4. which giueth authoritie to the Iustices and Shirife c. to inquire of the Riot and to heare and determine it according to the law was ordained to punish Riotors for breaking of the Kings peace and thereby to make them an example to others and also to intitle the King to a fine And therefore the law will not permit that the satisfaction of the parties grieued should depriue the King of his fine or ease the offendors of their due and deserued punishment and also yéeld incouragement to others vpon hope of agréement to put in practise the like Riots or other outrages St. 13. H. 4. 7 26 And whereas the said Statute of 13. H. 4. hath ordained that if any Riot or c. against the law shall be made the Iustices of peace the Shirife or vndershirife shall come with the power of the Countie if néede be to arrest them That power of the County is expressed before by the Statute of 17. What power of the County the Iustices shall vse to represse Riots R. 2. viz. Al Lords and other liege people of the Realme as Knights Esquires gentlemen yeomen laborers seruants apprentises villaines and all others of the age of 15. yeares or aboue which be not of the Clergie decrepite or
and euery the heire and heires of all and euery the offendor and offendors in any the cases aforesaid and all and euery person and persons 1. M. 12. bodies politicke and corporat their heires successors and executors and euery of them other than such person and persons onely as shall be attainted conuicted and outlawed of any the foresaid offences of felonie shall haue hold enioy all such right title entrie interest leases possessions rents conditions profits and aduaÌ„tages as they or any of them shall or of right ought to haue in or to any mannors lands rents reuersions seruices or hereditaments whatsoeuer or in or to any part thereof in as large manner to all intents as if such attainder had neuer beene had any thing in this act c. notwithstanding c. Sauing to euery person and persons bodies politicke and corporate and their successors their liberties and franchises in such maner as if this act had neuer beene made Procuring others to offend 46 If any person or persons doe moue stirre 1. M. 12. or procure any person or persons to commit any of the offences in this Act specified then euery such person and persons which shall procure stirre or mooue any person or persons so to offend shall suffer such punishment by imprisonmeÌ„t without baile or mainprise as is before expressed in this Act against counsellors of such offendors Vnlawful assemblies by xl or aboue 47 If any persons to the number of fourtie or more 1. M. 12. shall assemble together in forcible manner vnlawfully and of their owne authoritie to the intent to execute doe or put in vre any of the things aboue specified or to doe any other felonious or rebellious act or acts and so shall continue together by the space of three houres after proclamation shall bee made at or nigh the place where they shall be so assembled or in some market towne thereunto next adioyning and after notice to them giuen thereof Then euery person so willingly assembled in forcible manner and so continuing together by the space of three houres after such proclamation made and notice thereof giuen shall bée adiudged a felon A lieutenant shall not appoint a deputie 48 No lieutenant that shall bee made by authoritie or colour of this Act 1. M. 12. or for to execute this Act shall constitute vnder him or in his place any deputy nor shall call or appoint to appeare before him by the onely authoritie of lieutenancie or of commission of lieutenancy any person for any cause or matter whatsoeuer saue onely for the causes and matters expressed in this Acte and for none other Aiding of the offendors after the offence 49 No person or persons shall bee put to any losse forfeiture paine 1. M. 12. or punishment of life land or goods as accessorie to any person or persons that shall commit any of the offences contained in this act for receiuing comforting or aiding of any such offendor after such act committed or done 1. M. 12. 50 No attainder or conuiction of any person or persons The attainder of those offences no corruption of blood for any offence or offences herein contained shall be any corruption of blood betwixt the offendor and any of his auncestors or such person or persons as should haue beene heire to such offendor if no such attainder or conuiction had béene had sauing to euery person and persons bodies politicke and corporat c. their liberties and franâ—â—â—ses in such manner as if this Act had neuer beene made ⧠Of Force forcible Entries and forcible retayning of possessions Vnlawfull force an enemy to peace 1 FOrce and violence executed without warrant of Law be so méere contrarie to the peace and justice of the Realme as disobedience is to loyaltie and contempt to gouernment for whosoeuer doth make a Forcible entrie into lands in the possession of an other doth secretly reuolue in his mind and distrust to himselfe that there is no Law in the Realme to redresse his wrong or no ministers to execute the same and therefore he will sit in iudgement of that cause himselfe and take into his owne hands the distribution of justice and assume into his possession by the strength of his arme what the phantasie of his head shall resolue to be his due whereas the Law in conuenient time would truely satisfie him whether the land in question by the rules of justice be his or not and also assigne him a milde and calme course to recouer all his whole dutie with valuable damages for the time he is iniured And because this force and forcible entrie into lands is so opposite and méere repugnant to the peace and justice of the Realme and tendeth so much to the dishonour of the King and his Crowne and the discredit of the Law that any person by byrth and oath deuoted to the obedience of the King and his Lawes should presume of his owne authoritie by force and strong hand to resist them both and as it were in contempt of them violently to intrude himselfe into an other mans possession before the law hath decided his title therein Therefore the wisedome of the Realme hath by the space of many generations first prouided to restraine those forces and forcible Entries and next to inflict condigne punishment vpon them which were offendors therein Whereupon by a Statute made AnÌ„ 5. There shal be no forcible entry into lands R. 2. the King defended St. 5. R. 2. 7. that none from thenceforth should make any Entrie into any lands and tenements but in case where entrie is giuen by the Law and then not with strong hand nor with multitude of people but only in a peaceble course maner And if any from henceforth do the contrary and thereof be duely conuict he shall be punished by imprysonment of his bodie and thereof ransomed at the Kings pleasure 2 But for that the said Statute of 5. R. 2. did giue no spéedie remedie to those which were expelled out of their lands or tenements nor assigned any speciall persons to suppresse the said disorder Therefore by an other Statute made AnÌ„ 15. St. 15. R. 2. 2 R. 2. it was further ordained The penaltie of forcible entrie into lands or benefices That when any such forcible entrie shall be made into lands or tenements or into any Benefices or offices of the Church and the complaint thereof come to the Iustices of the peace or any of them that the same Iustices or Iustice take sufficient power of the County and go to the place where such forcible entrie is made if he or they find any that holdeth such place forcible after such entrie made they shall be taken and put into the Gaole there to abide conuict by the record of the same Iustices or Iustice vntill they haue made fine and ransom to the King And all they of the Countie aswell the Shirife as other
shall be attending vpon the Iustices to go and assist the same Iustices to arrest such offendors vpon paine of imprisonment and to make fine to the King 3 And forasmuch as the said Statute of 15. R. 2. doth not extend to Entries into tenements in peaceable manner and after holden with force nor if the persons which enter with force into any lands or tenements be wholy remoued and departed before the comming of the said Iustices or Iustice Neither is there any paine ordained if the Shirife do not obey the precepts of the Iustices in this behalfe St. 8. H. 6. 9. Therefore by an other Statute made An̄ 8. H. 6. it was ordained that the said former Statutes should be continued and executed And further that where any do make such forcible entrie into lands tenements or other possessions or hold them forcible Holding possession by force after complaint thereof made within the said Countie where such entrie is made to the Iustices of peace or to one of them by the partie grieued that the Iustices or Iustice so warned within a conuenient time cause the said Statute to be executed and that at the costes of the partie so grieued And whether such persons making such Entries be present or gone before the comming of the said Iustices or Iustice presently the same Iustices or Iustice in some good Towne next vnto the tenements so entred or in some other conuenient place according to their discretion shall haue authoritie to inquire by the people of the same Countie aswell of them that made such forcible entries into lands or tenements Feoffement of lands for maintenance as of them which hold the same with force And if it be found before any of them that any doth contrarie to this Statute then the said Iustices or Iustice shall cause the lands or tenements so entred or holden as aforesaid to be reseised and shal put the partie so put out in full possession of the same lands or tenements so entred or holden as before they were entred or holden And if any person after such entrie into lands or tenements holden with force make a feoffement or other discontinuance 〈◊〉 any Lord or other person to haue maintenaunce or to take away and defraud the possessor of his recouerie in any wise if after in an Assise or other action thereof to be taken or pursued before Iustices of Assise or other the Kings Iustices whatsoeuer they be by due inquirie thereof to be taken the same feoffements and discontinuances may be duely proued to be made for maintenance as is aforesaid then such feoffements or other discontinuances so as before made shall be void And if any person be put out or disseised of any lands or tenements in forcible manner or put out peaceablie after holden out with strong hand and armes against the Iustice of peace or after such entry any feoffement or discontinuance in any wise thereof be made An Assise or action of trespas againste disseisour by force to defraude take away the right of the possessor the party greiued in this behalfe shall haue an Assise of Nouel disseisin or a writ of Trespas against such disseisor And if the party grieued recouer by Assise or by action of Trespas and it be found by verdict or in any other manner by due forme of the Law that the partie defendant entred with force into the lands tenements or them after his entrie did hold with force then the plaintife shall recouer treble dammages against the defendant and moreouer the defendant shall make fine and ransome to the King The authority of officers of Cities and Townes enfranchised And the Maiors Iustices and Iustice of peace Shirifes and Bailifes of Cities and Boroughes hauing fraunchise shall haue in the said Cities Townes Boroughes like authoritie to auoid such Entries and in other articles aforesaid rising within the same as Iustices of peace and Shirifes in Counties and Shires haue 4 As by the foresaid Statute of 8. H. 6. if any person after entrie into lands or tenements holden with force shal make any feoffement or other discontinuance thereof to any Lord or other person to haue maintenance or to defraud the possessor of his recouery then the same feoffements discontinuances shall be void So by an other Statute made before that Anno 4. H. 4. St. 4. H. 4. 8. it was inacted A speciall Assise against a disseisor with force That if any man in his owne right to his vse or in an other mans right to his vse doth make any forcible entrie into an other mans lands by way of maintenaunce or doth take or carry away any goods of the possessors of the fréehold after any such forcible entrie then if the partie grieued or other lawfull man will affirme that the entry was made in such forcible manner the Chancellor of England may graunt to the partie greiued a speciall Assise And if the disseisor be attainted of such forcible disseisin he shall be one yeare imprisoned and pay to the partie grieued his double dammages and also dammages for his goods And one of the Iustices of the one Bench or of the other or the chiefe Baron of the Exchequer if he be learned in the law shall be named in euery such speciall Assise And no Supersedeas shal be granted to the contrarie of such Assise 5 Wherefore if a man be disseised by force of any lands or tenements by way of maintenance or that his goods be taken or carried away after such entrie made Or that he be put out or disseised of his lands in forcible manner Or that he be put out peaceablie and after holden out with force against a Iustice of peace Or after such entrie any feoffement or discontinuance be made to defraud and take away the right of the possessor then the partie grieued as his case requireth may haue a speciall Assise against the disseisor and recouer his double dammages Seuerall remedies for seuerall offences by force and dammages for his goods and the disseisor shall be one yeare imprisoned according to the foresaid Statute of 4. H. 4. St. 4. H. 4. 8. Or else he may haue an Assise of Nouel disseisin or an action of Trespas against the disseisor and recouer treble dammages and moreouer the disseisor shall make fine and ransom to the King according to the before rehearsed Statute of 8. H. 6. St. 8. H. 6. 9. Or if the plaintife will omit the benefit of recouerie of his dammages he may only craue and vse the assistance of a Iustice of peace to sée and remoue the force to record it to inquire of it and to make him restitution according as the truth of his case shall appeare to the said Iustice vpon his owne sight or be found by inquisition according to the former prouision of the said Statute of 8. H. 6. Or lastly he that is put out or holden out of his lands with force
lands hath béen made or after the same lands be holden with force he is either himselfe to reseise the same lands and put the partie in possession againe who was so forciblie expelled or kept out of possession or else he is to make his Precept to the Shirife of the same Countie to make restitution to the same partie The forme of which warrant or precept is this viz. Georgius Throckmorton Miles Buck. A warrant to the Shirife to make restitution vnus Iusticiariorum dnÌ„i Regis ad pacem in dicto Comitatu conseruandam assignatorum VicecomÌ„ eiusdem Comitatur salutem Cum per quandam Inquisitionem patriae coram me captum apud East-Claydon in Comitatu pÌ„dicto 2. die Dec. Anno regni dnÌ„i nostri Iacobi quarto suê‘ sacrÌ„m A. B. C. D. E. F. c. ac per formam statuti in hmÌ„odi casu ê“uisi compertuÌ„ fuerit qd ' L. M. de Horwood magna in ComÌ„pÌ„dict ' husb alij malefactores pacis dicti dnÌ„i Regis perturbatores 26. die No. anÌ„ dicti dnÌ„i Regis nunc quarto in quoddam messuagiuÌ„ c. N. T. in East-Claydon pÌ„dicta vi armis ingressi fuerunt ac ipsum N. T. inde expulerunt pÌ„dictuÌ„ mesuagiuÌ„ c. a pÌ„dicto 26. die c. vsque ad dictuÌ„ secunduÌ„ diem Decemb. manu forti cum potentia tenuerunt ê“ut per InquisitioneÌ„pÌ„dictam plenius liquet de recordo Ideo ex parte dicti dnÌ„i Regis tibi mando precipio quod ad hoc debitur requisitus vna cum posse Comitatur tui si necesse fuerit accedas ad mesuagiuÌ„ caetera praemissa ac eadeÌ„ cum ê‘tinentijs reseisiri facias pÌ„fatuÌ„ N. T. ad in plenam possessioneÌ„ suam inde ê“ut ipse ante ingressuÌ„pÌ„dictuÌ„ fuerat restituas mitti facias iuxta formaÌ„ dicti statuti de Ingressibus manu forti factis aediti ê“uisi Et hoc nullatenus omittas sub ê‘iculo incumbentur Teste me pÌ„fato G. Throckmorton Datum apud Fulbrooke c. tertio die Decembris c. 7. Ed. 4. 18. 4. H. 7. 18. 15. H. 7. 5. 10 If a man be indited before the Iustices of peace in the County Restitution awarded out of the K. bench for that he did with force expell and put another out of his possession of certaine lands within the same County and after this indictment is remoued into the kings bench by a Certiorari the Iustices of the same court may award a writ of Restitution to the shirife of the same County to restore possession to the party so expelled though the words of the statute of 8. H. 6. doe giue that authority only to the Iustices of peace of the County where the forcible entry is made and if he be indited before Iustices to heare determine and after the record is remoued into the K. Bench the Iustices of the same court may award restitution for that they who haue supreme authority and do represent the K. person now haue before them the record whereby the party was indited 11 By the words of the foresaid statute of 8. H. 6. it doth appeare No restitutioÌ„ but where the force is found by inguisition that one Iustice of peace alone may remoue the force 21. H. 6. 5. and also enquire thereof so may diuers Iustices But by the aforesaid statute no restitution can be made to the party put out of possession if the said expelling or putting out of possession be not found by inquisition nor but in case where the words of the Indictment vpon the statute of 8. 14. H. 6. 16. H. 6. be adhuc extratenet 12 In the foresaid statute of 8. H. 6. there is a prouiso That they which kéepe their possessions by force in any lands and tenements whereof they or their auncestors or they whose estate they haue in such lands or tenements haue continued their possession by the space of three yeares or more be not endammaged by the force of the said statute And by one other statute made Anno 31. St. 31. El. 11. Eliz. for the explanation and declaration of the meaning and intent of the said prouiso and of the law therein it was ordained declared and enacted That no restitution vpon any indictment of Forcible entry Where no restitutioÌ„ against thrée yeares possession or holding with force shal be made to any person or persons if the person or persons so indited hath had the occupation or hath béene in quiet possession by the space of thrée whole yeares together next before the day of such indictment so found his her or their estate or estates therein not ended nor determined which the party indited shall and may alledge for stay of restitution and restitution to stay vntill that be tried if the other will deny or trauerse the same And if the same allegation be tried against the same person or persons so indited then the same person or persons so indited to pay such costs damages to the other party as shal be assessed by the Iudges or Iustices before whom the same shal be tried the same costs and dammages to be recouered and leuied as is vsuall for costs and dammages contained in iudgements vpon other actions If a man hath béene in quiet and peaceable possession of lands thrée yéeres or more by a good title 4. 5. P. M Dy. 141. and then is expelled and disseised of them and the party offending is therefore indited vpon the statute of 8. H. 6. and the disseisée who was expelled is restored to his possession by a writ of Restitution and is in possession accordingly in this case he cannot iustifie the detainer of the possession of those lands by force of the foresaid prouiso contained in the statute of 8. H. 6. because his possession was interrupted discontinued for that possession must be thrée whole yéeres together without interruption before the said party may by the said prouiso kéepe his possession by force And likewise if he that is a iust and lawfull possessor of lands by the space of twenty yéeres together 3. 4. P. M. Dy. 141. be once clearely wholly remoued from the possession of the same land he cannot come againe with force and a multitude of people to put himselfe in possession therof and detaine the same with force by vertue of the prouiso in the said statute of 8. H. 6. because his possession was interrupted Neither in this case if he be indited of a Forcible entry according to the statute of 8. H. 6. shall he be relieued touching his restitution by the foresaid statute of 31. El. for that he had not the occupation nor had béene in quiet possession by the space of thrée whole yeares together of the same lands next before the day of such indictmeÌ„t found But if a man be seised of a lawfull possession by the space of thrée yéeres of any
breue nobis remittentes Teste c. S. Manasse c. 7. When the Shirife or Iustice or Iustices of peace to whom the foresaid writ is directed hath caused thrée proclamations to be made according to the purport of the said writ then he or they may enter and make search in the house houses or place suspected and search whether there bee any force of armour or weapons worne borne or vsed against the said proclamation or otherwise he is warranted by the said writ to inquire thereof by a Iurie And if any such armour or weapons be found he must imprison the offendors and seise and praise their armour and weapons so found with them to the Kings vse And if vpon the proclamation they doe depart in peaceable manner then he hath no warrant by the writ to commit them to prison But by this writ the Shirife or Iustices haue onely authority to remoue the force but not to put the party expelled in possession againe What shal be said to be force 29 Because I haue written of force forcible entry and forcible detaining of possession it is conuenient that I should somewhat declare what the law doth accompt to be force and what acts and in what manner done to be forcible This forcible entry or forcible detaining of possession which the statutes before rehearsed do prohibite must be done with some weapons either offēsiue or defensiue as with swords bucklers pykes iauelines bills clubs pitchforkes staues halberts bowes arrowes crossebowes gunnes harneys casting of stones or blocks pouring of hot coales scalding water or lead or with any other thing wherewith one man may hurt the person of another Force by number of seruants And further if a man doth enter vpon the possession of another 10. H. 7. 11. or doth kéepe a possession taken with more seruants or attendants then he doth cōmonly maintaine it is force and it shal be adiudged in him a forcible entry or a forcible detaining of possession And so it is if diuers do come with bowes bills gunnes or other weapons to a ground or to a house and enter without the disturbance of any this is an entry by force for the words of the statute of 5. R. 2. be Sta. 5. R. 2. 7 That none shall enter with multitude of people but only in a peaceable manner And in like sort if a man doe enter peaceably into a house Force by nūber of weapōs and after doth bring into the same more weapons then he and his ordinary family do commonly vsually weare besides those weapons that he doth find in the house whereof hée must make no vse to defend his possession it is a forcible detaining of possession And moreouer if complaint be made to a Iustice of peace that one hath entred forcibly into a house and doth detaine the same with force and the said Iustice of peace doth goe thither and findeth the dores shut and him or those within denying him to enter this is a detayning of possession with force though there be no weapon shewed or vsed and though there be but one person within the house for in this case the offendor doth vse the dore as his buckler to keepe the possession If the Iustice of peace doe find in the house any great number of people or any persons in harneis or hauing harneis lying by them this is a detainer with force Wherefore in all the cases aforesaid the Iustice of peace may take the power of the County breake open the dores commit the offendors to prison 11. Ass p. 25 And if a man do mowe reape sheare or sickle corne or grasse or by such other labor which cannot be done without the hands of man wherunto he hath no title this shal be adiudged an entry disseisin with force If a man do kéepe his beasts by force in another mās seueral ground 27. Ass p. 30 claiming common therein whereas he hath no common there this is a disseisin of the land by force 30. Ass p. 50 And if a man do enter into the possession of another mans land and after doth fell or lop wood there this is a disseisin by force If a man do enter into another mans house or land 11. H. 4. 16. disseise or expel him thereof after doth carry away certaine goods of the disseisées this is a disseisin with force arms and the disseisor shal be imprisoned for it 16. Assis p. 7. 14. Ass p. 18. 12. H. 4. 22. 22. Ass p. 33. 30 A woman couert may commit a disseisin with force Who may cōmit a forcible entry and be imprisoned therfore and so may an infant of the age of 18. yéeres or aboue commit a disseisin by force be imprisoned But if he be of tender age he shal not be adiudged a disseisor with force nor be imprisoned 31 Though force being opposed against the law What force is lawfull to the persons of mē is a professed enemy to the peace of the Realme yet being vsed in the maintenance of the law it is a principall protector of the same peace for the law doth put the sword of iustice into the kings hand to protect himselfe and euery of his subiects from the violēce and oppression of others and to relieue each one that hath iust cause of complaint and thereby to yeeld him peace Wherefore force is to be resembled to fire which being abused may consume the whole house and being wel guided is a meane to yeeld sustenance and comfort to euery person therein And so force may be lawfully vsed by all the kings Officers Ministers and Subiects thereunto deputed with the helpe of all others to assist them when need shall require to execute or aduance iustice or the iudgements of the Law It is lawfull force wherby all offendors in Treason Felony other great crimes be apprehended 7. E. 8. 16. caried to prison brought to their answers receiue condigne punishments inflicted vpon them for their offences It is lawful force wherby the Shirife his Vndershirife Baylifes or Deputies doe with strength apprehend any person by vertue of the kings writs to answere or satisfie the purport of the same writs St. 8. H. 6. 9. It is lawfull force whereby Iustices of peace doe remoue those vnlawfull Entries or vnlawfull detainings of possession which one man doth make into another mans land contrary to the Laws and Statutes abouesaid and whereby they doe put him againe in possession who was wrongfully disseised or expelled thereof And it is lawfull force which Iustices of peace Shirifes Coroners Constables Tithingmen Headboroughes Boroughholders al other charged and authorized to preserue the peace together with their assistants deputies or assignées shall vse in apprehending or committing to prison such as doe attempt to disturbe or breake the peace within their iurisdictions or being commanded wil refuse to put in sufficient sureties for the keeping of
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
the land or thing in variance so it is Maintenance to take part in any quarrell depending in suit in the Kings court or to worke any fraud whereby iustice may be hindered Westm 1. 3. E. 1. 28. as it appeareth by the statute of West 1. whereby it is ordained That if any Clerke of the kings or of any Iustice The penalty for maintaining of suits do receiue the presentment of any Church for the which any plea or debate is in the K. Court without the kings speciall licence he shal loose the Church and his seruice And if any Iustices or Shirifes Clerke take part in any quarrell depending in the Kings Court or doe worke any fraud whereby common right may be delayed or disturbed he shall loose his seruice and be further punished if the Trespas doe require St. 32. H. 8. 9 And after by a statute made Anno 32. H. 8. there was a greater penalty imposed vpon those who shall be maintainors of suits By which statute it was ordained That no person or persons whatsoeuer shall vnlawfully maintaine or cause or procure any vnlawfull maintenance in any action suit demaund or complaint in any of the Kings Courts of the Chauncerie Starre-chamber White hall or elsewhere within any of the K. dominions of England or Wales or the marches of the same where any person or persons haue authoritie by vertue of the K. Commission Patent or Writ to hold plea of lands or to heare examine or determine any title of lands or any matter of witnesse concerning the title right or interest of any lands tenements or hereditaments Or shall vnlawfully retaine for maintenance of any suit or plea Retaining for maintenance or imbracing or suborning of Iurors any person or persons or embrace any fréeholders or Iurors or suborne any witnesse by letters rewards promise or by any other sinister labour or meanes for to maintaine any matter or cause or to the disturbance or hinderance of iustice or to the procurement or occasion of any manner of Periurie by false verdict or otherwise in any of the Courts aforesaid vpon paine of forfeiture for euery such offence x. pounds to the king and Inf. to be recouered by him that will sue for the same in any of the kings Courts of Record by Action of Debt Bill Plaint or Information wherein no W.E.P. c. if the suit be commenced in any of the kings Courts within one yeare next after any such offence committed or els not 10 As it is Maintenance to haue by agréement part of the land in variance or part of the gaines of the suit in question so is it Maintenance to buy a pretenced right or title of another of or to lands or tenements whereof the seller hath no possession for this oft times the cause of Subornation of witnesses procurement of Periurie and of the subuersion of iustice For the redresse whereof by the last specified Statute of Anno 32. H. 8. St. 32. H. 8. 9 it was first enacted That all Statutes heretofore made concerning Maintenance Champertie and Embracerie or any of them then standing in force should be put in due execution according to the effects of the same And also by the same statute it was ouer that ordayned Maintenance by buying of pretēced titles That no person or persons of what estate degrée or condition soeuer he or they be shall bargaine buy or sell or by any meanes obtaine get or haue any pretenced rights or titles or take promise graunt or couenant to haue any right or title of any person or persons in or to any Manors Lands Tenements or other Hereditaments but if such person or persons which shall so bargaine giue graunt couenant or promise the same their auncestors or they by whom he or they claime the same haue béene in possession of the same or of the reuersion or remainder thereof or taken the rents or profites thereof by the space of one whole yeare next before the said bargaine couenant graunt or promise made vpon paine that he that shall make any such bargaine sale promise couenant or graunt shall forfeit the whole value of the Lands Tenements or Hereditaments so bargained sold promised couenanted or graunted contrary to the forme of this Act. And the buyer or taker thereof knowing the same shall also forfeit the said value of the said Landes Tenements or Hereditaments so by him bought or taken as is aforesaid the one halfe of the said forfeitures to be to the king and the other halfe to the party that will sue for the same in any of the kings Courts of Record by Action of Debt Bill P. or I. c. wherein no W. E. P. or I. c. if the suit be commenced by A. B. P. or I. in any of the kings Courts within one yeare next after any such offence committed or els not Prouided alwayes The possessor purchaseth a pretenced title That it shall be lawfull to any person or persons being in lawfull possession by taking of the yearely ferme rents or profites of any Manors Lands Tenements or Hereditaments to buy obtaine get or haue by any reasonable meanes the pretended right or title of any other person or persons to be made to of or in any such lands tenements or hereditaments whereof he shal be so in lawfull possession Any thing in this Act c. notwithstanding 22 23. El. Dyer 374. 6. Ed. 6. Dy. 74. Plow Com̄ 87. 11 If a man take a lease or promise a lease for the terme of certain yéeres to another of land contrary to the foresaid statute of Ann̄ 32. H. 8. What is selling of a pretenced title viz. of those lands whereof neither he himselfe nor any of his auncestors nor any by whō he doth clayme the same land haue béene in possession of the same nor of the reuersion nor remainder thereof nor taken the rents or profits thereof by the space of one whole yeare before the said bargaine graunt and demise made he is within the danger of the foresaid statute of Anno 32. H. 8. as well as if hée had made an estate for the terme of life in taile or in fée simple of the same lād for that the scope and effect of the statute is vtterly to root out of Maintenance and bargaines and promises of Titles for the which the words of the statute be That no person shall sell or buy any pretenced rights or titles And a lease is no more lawfull for one yeare then for an hundred yeares and some man will be as ready to maintaine to haue a lease for yeares as to haue a greater estate Wherefore he that doth make a lease for yeares or make promise of a lease for yeares of lands whereof he hath but a pretenced right or title shall forfeit to the King and him that will sue the whole value of the inheritance of the land as well as if he had bargained and sold the fée simple thereof But
is depending to giue iudgement for the plaintife then the def may haue an action of Maintenance against him for that the same iudgemēt is a thing wholly belonging to the office of a Iudge and not of a Iuror therfore he doth therin intermeddle with another mans office and another mans cause more than he hath to do or may iustifie and so hath committed vnlawfull maintenance Maintenance in a Iuror 18 If a Iurie be charged to inquire of a matter in issue 17. E. 4. 5. 18. Ed. 4. 4. one Iuror may persuade his cōpanions or any of them to passe for the plaintife or def as he conceiueth the truth of the cause to be or as their euidence doth induce them this is no maintenance but if one of the Iurors will giue or promise money to another of his fellowes to giue his verdit for the pl. or def this is vnlawfull maintenance though he doth wage him to giue his verdit according to truth and right of the cause in issue Maintenance by speaking of words 19 If a man of great authoritie in a country will in the presence of a Iurie 22. H. 6. 5. 13. H. 4. 19. and the standers by at the tryall of an issue say openly that he will spend mony in the cause in question in the behalfe of the pl. or the def or that hee will giue money to labour the Iury or wil speake other great or high words in fauor of one of the parties this is vnlawful maintenāce in him though he do spend no mony in that cause nor doth labor the Iury therin for it may be that whē the Iury do by his words know his meaning they dare not in respect of his authoritie or greatnesse in that coūtie giue their verdit otherwise thā he would haue them None shall sit with the Iust of Assise on the bench And for the preuention of that kind of maintenance by a stat made An. 20. R. 2. it was ordained That no Lord or other of the country great or small St. 20. R. 2. 13. shall sit vpon the bench with the Iust of Assise in their Sessions in any of the Shires of England vpon paine of a great forfeiture to the King neither the Iustices shall suffer the contrarie to bée done Maintenance in comming to the barre with one of the parties And in like sort if a man of great authoritie in the Countie where an Issue is to be tried hauing nothing to doe in that cause doth come to the barre with the plaintife or defendant 22. H. 6. 6. that is one of the parties to an Issue that is then to bée tryed and standeth by him this is an vnlawfull maintenance in him though hée neither doth nor yet speaketh any thing in the matter for his presence and companie with the one partie doth shew to the Iurie his particular affection to the same partie and doth ofttimes induce them to fauour as much as labour and persuasion by words could doe And though the Iurie doe not respect him but giue their verdict for the other partie to that suit according to their euidence and the truth of the cause in question yet he hath done what in him lyeth to the contrarie 21. H. 6. 15. 22. H. 6. 5. 28. H. 6. 7. Dyer fo 95. 20 And so it is if two be in suit and do ioyne in issue Maintenance by giuing of money to labour a Iurie and the Master of one of the parties to that issue or any other will deliuer money of his owne to a stranger to labour the Iurie impanelled to try that issue to giue their verdit for his said seruant or friend this is maintenance vnlawfull in the Master or other though the partie to whom the money was giuen did neuer deliuer it to the Iurie nor did not labour vnto them in such sort as hée was directed or though the Iurie did giue their verdict against his said seruant for when the Master had deliuered the money to the stranger and told him to what purpose he should vse it he had done as much as he could do in that suit to hinder the course of iustice though his direction tooke no successe according to his desire And also it is vnlawfull maintenance if one giue money to a man that is impanelled of a Iurie to giue his verdict on the one side though that partie impanelled doth not appeare or do appeare and is drawne out by challenge or otherwise 22. H. 6. 6. And it is maintenance vnlawfull if one do threaten to kill or beat a Iuror if he do not giue his verdict for the one part to that issue which hee doth name though the same Iuror do otherwise 28. H. 6. 6. 21 If a Iurie do come to a mans house What is maintenance in a witnesse and what not and desire him to informe them of the truth of a matter whereof they do doubt and he doth informe them therof this is iustifiable But if one do come to a Iurie or of himselfe do labour to informe them of the truth of a cause in question this is maintenance vnlawfull and therefore punishable And so it is if the Court be informed by the plaintife or defendant when an issue is to be tryed that there is a man at the bar or in that place who doth know the truth of the matter in issue and doth desire that the same man may be examined by the Court to testifie the truth of that cause in question to the Iurie and the Court doth cause him to be called to testifie his knowledge therein and he at the commaundement of the Court deliuereth that which he doth know in that matter this is maintenance iustifiable But if the same partie will come to the barre of his owne head and testifie for the plaintife or the defendant this is vnlawfull maintenance and hée may be punished therefore 22. H. 6. 6. 22 If one man do labour to indict another by force whereof he is indicted Maintenance by procuring of an indictment in this case hee that is indicted may haue a writ of Maintenance against the procurer of that indictment and yet this is no quarrell but it is a taking of a part St. 1. E. 3. 14. and so prohibited by the stat of anno 1. E. 3. and it is in the nature of an action betwéene the King and the partie indicted and the foresaid statute is generall that it shall not be lawfull to any person great or smal to maintain quarels or to take parts to the let or disturbance of the Common law What is maintenance in a mainpernor 23 If a man be arrested indicted or sued 34. H. 6. 25. 14. H. 6. 6. 18. E. 4. 12. so that he is compelled to become bound with mainpernors for his apparance the mainpernor may come into the Court and sée the apparance of the same partie recorded and iustifie the
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
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
alwaies leuied of the buyers of such books contrarie to this statute For that it was then thought expedient that Printers and sellers of printed bookes should as well be restrained from the oppression of others by making excessiue prices in sale or binding of their bookes as it was by the said statute prouided that they should not be oppressed by others Therefore by the before rehearsed statute of Anno 25. H. 8. it was further established St. 25. H. 8. 15. That if any Printers or sellers of printed bookes inhabiting within this Realme do at any time in such wise inhance or increase the prices of any such printed books in sale or binding at too high and vnreasonable prices in such wise as complaint thereof be made to the King or vnto the Lord Chancellor Lord Treasurer or any of the chiefe Iustices of the one Bench or of the other Then the same Lords or two of any of them shall haue authoritie to enquire thereof as well by the othes of twelue honest and discréete persons as otherwise by due examinations by their discretions and after the same inhauncing and increasing of the prices of the said bookes and binding shal be so found by the said twelue men or otherwise by the examination of the saide Lord Chancellor Lord Treasurer and Iustices or two of them Then the same Lords or two of them at the least shall haue power to redresse such inhancing of the prices of printed bookes from time to time by their discretions and to limite the prices as well of the bookes as for the binding of them And ouer that the offender or offenders being conuict by examination of the saide Lordes or two of them or otherwise shall forfeit for euery booke by them solde whereof the price shall be enhaunced for the booke and binding thereof thrée shillings foure pence to the King and party grieued that will complaine vpon the same in manner and forme aforesaid St. 5. Ri. 2. 2. 14 It appeareth by the preamble of the statute of An̄ 5. R. 2. that the carying of gold or siluer in money vessell plate or iewells foorth of the Realme was then accounted a great mischiefe oppression and destruction of this land which the policie of this State hath before and since by seueral Statutes endeuoured to restraine As appeareth by the statutes of An̄ 9. Ed 3. Anno 5. Oppression by transporting of gold and siluer R. 2. Anno 2. H. 4. Anno 2. H. 6. Anno 17. Ed. 4. Anno 4. H. 7. and Anno 19. St. 9. Ed. 3. 1 St. 5 R. 2. 2 H. 7. Whereupon by the saide statute of An̄ 9. Ed. 3. Anno 5. R. 2. it was established That whosoeuer doth send or carrie out of the Realme of England any gold or siluer in mony bullion plate or vessell without the Kings licence St. 2. H. 4 5. sauing for his reasonable expences Anno 2. H. 4. shall forfeit the valew of the summe carried foorth And he which is vpon his passage in any shippe or vessell for to goe out of any port hauen or créeke shall immediatly confesse and declare after warning vnto him giuen by the Kings searcher what gold or siluer in coine or masse he hath with him for his expences or else that mony so concealed shall be also forfeited to the King But by the statute of Anno 2. St. 2. H. 6. 6. H. 6. Raunsoms for fines of English prisoners taken beyond the Sea and the mony that souldiers shall carrie with them for their reasonable costs be excepted so that the same be not done without the Kings licence And also by the same statute is excepted mony for things bought in Scotland to be brought to the parts adioyning And by the saide Statute of Anno 19. H. 7. it was ordained That no person shall carry or conuey nor cause to be carried out of this Realme St. 19. H. 7. 5 any bullion plate or coine of golde or siluer into Ireland aboue the summe of vj. s̄ viij d nor conuey any such bullion into any ship or boate vpon paine of forfeiture of the same and of imprisonment and fine at the Kings pleasure 15 Because there is no mine of copper mettall within this realme Oppression by transporting copper brasse c. where sufficient copper may be gotten for the vse of the King and his people and for that seuerall other mettalls be mixed therewith of which diuers vessells and instruments be made And therefore the transporting thereof beyond the sea was found by experience to be a great hinderance and oppression to the workers thereof and also to all those that should haue the vse and occupation of the same which were in effect all sorts of housekeepers wherefore for the restraint of the transportation of the same first one statute was made Anno 21. St. 21. H. 8. 10. St. 33. H. 8. 7 St. 2. E. 6. 37 H. 8. And after another Anno 33. H. 8. And lastly a third Anno 2. Ed. 6. By which two last Statutes it was enacted That no persons shall carry or conuey or ship to the intent to carry or conuey any brasse copper latten bel mettall pan mettall or shroffe mettall whether it be cléere or mixed tinne and lead onely excepted into any part beyond the sea or into any outward dominion vpon paine to forfeit the double value thereof and x. l. for euery thousand weight of the same mettall so carried or shipped to the intent to be caried to the King and him that will sue for the same in any of the Kings courts by A.B.P. or I. wherein no W.E.P. c. 16 For that a great nūber of persons occupying the trade faculty of pewterers within this Realme were decayed and oppressed in estate by reason that much ware made of tinne was brought out of other countries into this Realme and because strangers did learne the occupation of Pewterers in this Realme Oppression of pewterers and then did depart the Realme and taught it to the people of forraine Nations and for that sometime Englishmen borne would trauaile into other countries and teach the same to forrainers for the restraint wherof by a Statute made Anno 25. H. 8. it was ordained St. 25. H. 8. 9 St. 33. H. 8. 4 That no person inhabiting within this Realme shall buy or take by exchange for other wares any wares made out of this Realme of tinne or mixt with tinne as platters dishes sawcers pots basons ewers flaggons goblets saltsellers spoones or any other wares made of tin or pewter whatsoeuer it be vpon paine of forfeiture of the same wares in whose hands soeuer it may be found or taken to the vse of the King and the finders thereof and also lawfull currant mony of this Realme to the valew thereof And further that no stranger borne out of this Realme shall vse the said craft of Pewterers nor worke any manner of vessell or other ware aforesaid to be
the time of his loane he meant to offend And therefore the stat of 13. Eliz. 8. hath wel prouided that the same stat of 37. H. 8. shal be most largely strongly cōstrued for the repressing of vsurie and against all persons that shal offend against the true meaning of the said statute by any way or deuice directly or indirectly Oppression by cutting out the head or pipe of a conduit Oppression by burning a cart laden Oppression by cutting off eares Oppression by barking of trées 30 It is an oppression and manifest and palpable iniury if any person do wilfully maliciously and vnlawfully cut or cause to be cut out the head or pipe of any conduit of any other persons Or burne or cause to be burned any wain or cart laden with coales or any other goods or any heape of wood of any other persons prepared felled for making of coales billet or Tallwood Or to cut or cause to bee cut out the tongue of any tame beast being aliue of any other persons Or to cut or cause to be cut off the eare or eares of any of the kings subiects otherwise then by authoritie of Law chance-medley sudden affray or aduenture Or to barke any Appletrées Pearetrées or other fruit trées of any other persons in all which cases by force of the statute of Ann. 37. H. 8. the offendor shall forfeit to the party grieued treble dammages St. 37. H. 8. 6 to be recouered by action of Trespas at the common law and to the king 10. l. for a fine 31 It is an oppression and a resolued intent to do hurt wrong to others Oppression by hawking or hunting in corn growing if any person shall hawke or hunt with his spaniels in any ground except his owne where corne or graine shall then grow at such time as any eared or codded corne or graine shal be standing and growing vpon the same or before such time as such corne or graine shal be shocked cocked hiled or copped in which cases the stat made an 23. St. 23. El. 10. El. hath ordained That the offendor shall forf for euery time that he shall so hawke or hunt without consent of the owner of the corne to such person as shal be owner of the eared or codded corne xl s̄ 32 If any person shal by day or night vnlawfully without authority break Oppression by taking of fish cut downe cut out or destroy the head or dam of any pond poole moat stagn stewe or seuerall pit wherein fish shal be put or stored by the owner thereof Or shall wrongfully fish in any of the said seuerall ponds c. to the intent to destroy kill take or steale away any of the same fish against the will of the owner or possessor thereof not hauing lawfull authority so to do this is an oppression to the said owner or possessor St. 5. El. 21 and therefore by the stat of an 5. El. it is enacted That the offendor being lawfully conuict of any of the said offences at the suit of the K. or the party grieued shall pay to the party grieued his treble damages suffer imprisonment 3. moneths find sufficient surety for his good abearing for the space of 7. yéeres or els remain in prisō without baile or main-prise vntill he hath found such surety And it shal be lawfull for the party grieued to take his further remedy against the offēdor for his losse damages and vpon satisfaction or confession of the dammages to release the offendor of the suretiship and good abearing at any time within vij yeares 33 I will draw toward an end of this title of Oppression Oppression by decaying o◠townes houses of husbandry with one of the greatest and most durable of all oppressions viz. with oppression by pulling downe of Towns houses of Husbandry and decaying of Tillage When the realme ceased to be oppressed by the long tedious ciuile warres which before were many yéeres continued betwéene the ij houses of Yorke and Lancaster and that K. Edward the fourth had ouerthrowne Q. Margaret Prince Edward her sonne at Tewksbury field setled the title of the Crowne planted peace in the Realme then some men of stirring spirits diuerting their bloudy humors to couetous humors pulled downe townes laid wast houses of husbandry thrusting forth of dores men women children cōuerting the same to their owne priuat vses which offence then daily increasing though it were but in Cunabilis being about 120. yeres sithence was so bewailed exclaimed of cried out vpon in open parliament that the same may in a sort be resēbled to the pitifull lamentation which the prophet Ieremy sitting downe wéeping made Threnae Ierem. after the temple of God the city of Hierusalē were destroyed the priests Leuits Elders slaine by Nabuchadnezzar K. of Babilon Or the same may be cōpared to those wofull miseries calamities which the prophet Esay foretold should after fall vpō the said great city of Babilon Esay 13. for as it appeareth by the stat of an 4. St. 4. H. 7. 12 St. 7. H. 8. 1. H. 7. 12. 19. 7. H. 8. 1. it was then holden That by the desolation pulling downe of houses and townes and laying to pasture land which customably hath beene manured occupied with tillage idlenesse the ground and beginning of all mischiefes doth increase men women and children that were dayly occupied and liued by the sowing of Corne and bréeding of Cattell and other increase were diminished husbandry the greatest commodity of this Realme for sustenance was decaied Churches were destroyed the seruice of God was withdrawne Christian people there buried are not praied for the Patrons and Curats were wronged Cities and market towns were brought to great ruine and decay necessaries for mans sustenance were made scarce and deare the people of the realme were sore minished the power defence therof was féebled decayed to the high displeasure of God against his lawes and to the subuersion of the Commonwealth desolation of the same Which grieuous dolefull mone made and enormities so displaied the grand counsell of this realme hauing commiseration vpon did indeuor to reforme at seuerall parliaments as appeareth by the stat of An. 4. H. 7. 12. 19. Ann. 7. H. 8. 1. An. 27. H. 8. 22. An. 5. E. 6. 6. An. 2. 3. P. M. 8. An. 5. El. 2. which said stat were all after repealed by a stat made an 39. St. 39. El. 1 El. And then by the same stat it was enacted That euery house that now hath viz. 24. die Octob. an 39 Reg. El. An. Do. 1597. Which is an house of husbandry or heretofore had 20. acres of arable land meddow and pasture or more therunto belonging and so occupied or letten to farme by the space of 3. yéeres together at any time sithence the beginning of the Qu.
adiudged Felonie or Trespasse according to the law of the land in auncient time vsed and according as the case doth require And if in such case or any like the Iustices haue adiudged it Treason before this time and there by the offendors lands and tenements haue come into the kings hands as forfeit the chiefe Lords of the fée shal haue their Escheats of those tenements which be holden of them whether the same tenements be in the hands of the King or of any other by gift or in other manner sauing to our Lord the King the yeare and wast and the forfeiture of the chattels which doe belong vnto him in the cases aforesaid And in such cases writs of Scire facias shal be awarded against the tenants of the land without any other originall and without allowing the kings protection in the same suit And touching those lands which be in the kings hands there shal be writs granted to the Sherifes of the Counties where the lands be to deliuer them out of the kings hands without delay 2 By which statute it doth appeare that there be two sorts of Treason by the auncient common lawes of this Realme viz. High Treason and Petit Treason High treason High Treason when any of the grieuous offences aforesaid be done or attempted to the vniuersall and generall Maiestie of gouernment that is to say to the bodie of the whole Commonwealth or to the King the head ruler and directer thereof Petit treason in his person wife issues or authoritie Petit Treason is when the bloudie and grieuous offence of wilfull murder is done and committed by an inferiour person and one in subiection to another that hath a dominion or a kind of Maiestie in gouernmēt ouer the same partie And though sithence the before mentioned Statute of 25. Ed. 3. diuers other offences haue béene made Treason by the Statutes of 21. R. 2. 3. H. 5. 4. H. 5. 8. H. 6. 14. H. 6. 20. H. 6. 4. H. 7. 22. H. 8. 26. H. 8. 27. H. 8. 28. H. 8. 31. H. 8. 32. H. 8. 33. H. 8. 35. H. 8. 1. Ed. 6. yet euerie of the succéeding ages were soone wearie of the sayd new Treasons and thought that the grieuous paines and most hainous punishments of them were too heauy and vnsupportable for the Subiects of this Realme to endure As the Lords and Commons in the Parliament holden Anno 4. St. 4. H. 4. 10 H. 4. 10. did complaine that diuers paines were ordained to be Treason by the statute of 21. R. 2. insomuch that no man did know how he ought to behaue himselfe to doe to speake or say for doubt of such paines and thereupon it was enacted That in no time to come any treason shall bée adiudged otherwise than was ordained by the Statute of 25. Ed. 3. And long time after the makers of the statute of Anno 1. Mar. considering and rehearsing that the state of euerie King Ruler and Gouernour of any Realme Dominion or Comminaltie consisteth more assured by the loue and fauour of the subiects towards their Gouernour than in the dread and feare of lawes made with rigorous paynes and extreame punishment and that lawes iustly made for the preseruation of the Commonwealth without extreame punishment or great penaltie are more often obeyed and kept than lawes and statutes made with great and extreame punishments and in speciall such lawes and statutes so made whereby not only the ignorant vnlearned and rude people but also learned and expert persons minding honestie are often trapped and snared yea many times for words only without any other fact or déed done or perpetrated and therefore to the intent that the seueritie of such like extreame dangerous and perillous laws might be abolished A repeale of former treasons and adnulled St. 1. M. by the said statute of Anno 1. M. Parl. 1. it was ordained That from thenceforth none act déed or offence being by act of Parliament or stat made Treason Petit Treason or Misprisiō of Treasō by words writing ciphering déeds or otherwise whatsoeuer shal be taken had déemed or adiudged to bee High treason Petit treason or Misprisiō of treason but only such as be declared expressed to be high Treason Petit treason or Misprision of Treason in or by the stat of 25. E. 3. concerning Treason or the declarations of Treasons and none other Nor that any paines of death penalty or forfeiture in any wise ensue or be to any offendor or offendors for the doing or committing of any Treason Petit Treason or Misprision of Treason other than such as bée in the said stat of 25. E. 3. ordained and prouided By force of which stat made Anno 1. M. the subiects of this Realme were eased and vnburdened of al acts déeds and offences made or declared to be treason by the space of two hundred and more years before Or as it may more aptly be said of all offences made Treason by any stat or act of parliament whatsoeuer But sithence the stat of repeale made Anno 1. M. there haue béen diuers other offences made or declared to be treason by the stat of An. 1. M. 6. 1. 2. P. M. 11. 5. El. 11. 18. Offences made treason by Statutes El. 1. 5. El. 1. 13. El. 2. 23. El. 1. 27. El. 2. 3. Iac. 4. whereof the first foure were but as an addition augmentation enlargement or exposition of the before specified Treasons ordained by the common law or declared by the foresaid stat of 25. E. 3. All which said last mentioned Treasons I will set downe and expresse verbatim after I haue somewhat more particularly expressed how the Sages and Iudges of this Realme haue construed and expounded seueral branches of the said statute of explanation made Anno 25. Ed. 3. 3 The foresaid statute of 25. Ed. 3. doth confirme it to be high treason for any person to compasse or imagine the death of our Soueraigne Lord the K. the Quéen c. by which words it doth approue what a great regard and reuerend respect the common law hath alwayes had to the person of the K. which it hath endeuored religiously carefully to preserue as a thing consecrated by almightie God and by him ordained to be the head health wealth of the kingdome and therefore it hath ingrafted a déepe and setled feare in the hearts of all sorts of subiects to offer violence or force vnto it vnder the paine of high treason Leges Aluredi cap. 4. Co. li. 4. 124 in somuch as if he that is non compos mentis do kil or attempt to kill the K. it shal be adiudged in him high treason though if he do cōmit petit treason homicide or larceny it shall not be imputed vnto him as felonie for that hee knew not what he did neither had he malice prepenced nor a felonious intent And this law doth not only restrain al persons from laying
violent hands vpon the person of the K. but also by preuention it doth inhibit them so much as to compasse or imagin Compassing or imagining the death of the K. c. or to deuise or thinke in their hearts to cut off by violent or vntimely death the life of the K. Qu. c. for the only compassing or imagination Bracton de Corona cap. 3. without bringing it to effect is High treason because that compassing and imagination doth procéed from false and traiterous hearts and out of cruell bloudy and murdering minds 19. H. 6. 47. 13. H. 8. 13. Co. li. 1. 28. But séeing compassing imagination is a secret thing lying hidden in the breast of man and cannot bee knowne but by an open fact or déed it is requisit to haue some thing or means to notifie the same to others before it can be discouered and punished and therfore if it be vttered by words it is a sufficient signification therof Conspiracy by diuers executed by some of them If two thrée or more P. 1. M. Dyer 98. Co. li. 1. 28. doe conspire to commit High treason as to compasse or imagin the kings death or to leuie warre and some of them after do commit and execute it this is High treason in them all by the common law Leuying of war or adhering to the K. enemies 4 And because by the said statute of 25. E. 3. it is declared to be High treason to leuie warre against the king in his Realme or to be adherent to his enemies aiding them in his Realme or elsewhere 13. Eliz. Dyer 298. therefore if a subiect borne of this Realme being beyond the seas doth practise with a prince or gouernor of another countrey to inuade this Realme with great power and doe declare where how and by what meanes the inuasion may best bee made it is High treason for an inuasian with great power cannot be but of likelyhood it will tend to the destruction or great perill of the K. and hurt to the Realme moreouer the said offendor hath manifested himselfe to be adherent to the K. enemy and to aid him with his counsell though not in the Realme yet elsewhere And this offence shal be tryed in the K. Bence The tryall of his offence or elsewhere before such commissioners and in such countie as the king by commission shal appoint according to the stat of 35. H. 8. 2. If a man do confederat with others to destroy the King Co. li. 1. 28 subuert the realme and to aduance a rebell to be king and doe indeuor by such friends meanes as he can to put the same in practise this is high treason and he shall suffer death and forfeit as in case of High treason And if a man accōpanied with a conuenient number of persons do ride towards the king 21. Ed. 3. 23. to help him in his wars another doth encounter him and kill him this is high treason for he doth leuie warre against the king who doch incounter in fight such as be assisting to the king in his wars and he is adherent and giueth comfort to the K. enemies who in open field giueth battell to the K. friends for taking he K. part Before the foresaid stat of 25. E. 3. it was adiudged Treason to kill the K. messenger 22. Ass p. 49 who was sent to execute his commandement 5 And though the words of the foresaid stat of 25. E. 3. be Counterfeiting the kings Seale That it is High Treason for a man to counterfeit the K. great seale or his priuie seale yet the law doth construe it a counterfeiting of the great seal 2. H. 4. 26. 40. Ass p. 33 to take the waxe printed with the great seale to affixe it to a writing made in the K. name and to vse it as the kings commission to gather money of the kings people though this is not making or counterfeiting of a new seale but the abusing of an old seale to remoue it from one Patent to another and thereby to abuse the K. prerogatiue and authoritie and to exact money of his subiects And so though the letter of the law be not infringed A. 37. H. 8. Brooke Treason 3 yet the meaning of the law which is the essence and substance of the law is broken wherefore the offendor shal be punished in this case as a traitor And yet when a Chaplein had affixed an old seale of the kings to a Patent of Non-residence it was adiudged but Misprision of treason and not High treason And notwithstanding that in the foresaid stat of 25. Ed. 3. Consenters aiders to treason there is no mention made of any consenters or aiders to this counterfeiting yet the consenters and aiders be taken to be within the puruiew of this stat for in that they be aiders and consenters to a treason 19. H. 6. 47. they be offendors and in treason all the offendors be principals and none accessarie and therefore they be principall traitors in this fact 6. H. 7. 13. 1. R. 3. 1. 6 And whereas it appeareth by the foresaid stat of Anno 25. E. 3. Counterfeiting but not vttering of false money that if a man do counterfeit or forge the K. money it shall be Treason the meaning of the said law is that the counterfeiting or forging of the sayd money shall bee construed and expounded Treason although the offendor doth not vtter the same in paiment for the K. by his prerogatiue royall hath the onely authority to coyne money and to make the price or value of the quantitie thereof and to set a seale therupon 3. H. 7. 10. 11. Eliz. Dyer 266. But if false mony be made within the Realm in Ireland or any the Dominions thereof and another knowing thereof doth vtter it in paiment he committeth not high treason but misprision of treason And the receiuing helping and comforting of him which hath coyned money of false mettall like to the money of England knowing him to haue coyned it is but misprision of treason 23. Ass p. 2 A woman that did coine money before the foresaid stat of 25. E. 3. was adiudged a traitor and burned for the same which doth prooue that the said offence amongst the others before rehearsed was high treason by the common law and not newly ordained by that stat He who coineth money by warrant doth abuse it If he which doth coine money by the kings warrant in the tower of London 3. H. 7. 10. or elsewhere maketh it lesse in weight by much than the old and antient ordinance or coyneth false mettal it is high treason in him But yet they which do vtter it in paiment to the K. subiects within the Realme be not traitors for it is in them onely Misprision of Treason 7 And whereas the words of the foresaid stat of 25. E. 3. be Petit treason That there is
or if any person or persons to whom the sayd othe by any Commission or Commissions shall be limited or appointed to be tendered refuse to take or pronounce the said othe in manner and forme aforesaid that then the partie so refusing and being thereof lawfully indicted or presented within one yeare next after such refusall and conuicted or attainted at any time after according to the lawes of this Realme shall suffer and incurre the daungers penalties paines and forfeitures ordained and appointed by the Statute of Prouision and Praemunire made An. 16. R. 2. St. 16. R. 2. 5. And also if any of the persons aboue named and appointed by this Act to take the othe aforesaide doe after the space of thrée moneths next after the first tender thereof The second refusall of the Othe high Treason the second time refuse to take and pronounce or doe not take and pronounce the same in forme aforesaide to be tendered That then euerie such offendor and offendors for the same second offence and offences shall forfeit loose and suffer such like and the same paines forfeiture iudgement and execution as is vsed in cases of high treason No corruption of blood or forfeiture of dower But no attainder by force of this Act shall extend to make any corruption of blood the dis-heriting of any heire forfeiture of dower nor to the preiudice of the right or title of any person other than of the offendor during his her or their naturall liues onely c. But forasmuch as the Quéene is otherwise sufficiently assured of the faith and loyaltie of the Temporall Lordes of her high Court of Parliament Therefore this Act shall not extend to compell any temporall Lord of or aboue the degrée of a Baron of this Realme Temporall Lords discharged of the Othe to take or pronounce the Othe aforesaide nor to incurre anie penaltie limited by this Acte for not taking or refusing the same Prouided alwayes that no person shall be compelled by vertue of this Acte to take the Othe aboue mentioned at or vpon the second time of offering the same according to the forme appointed by this Statute except the same person hath béene is or shall bée an Ecclesiasticall person that had hath Who only shal take the Othe vpon the second tender or shall haue in the time of one of the Raignes of the Quéenes father brother or sister or in the time of the Quéenes Maiestie her heires or successors charge care or office in the Church Or such person or persons as had hath or heereafter shall haue any office or ministerie in any Ecclesiasticall Court of this Realme vnder any Archbishop or Bishop in any the times or raignes aforesaide Or such person or persons as shall wilfully refuse to obserued the orders and rites for diuine seruice that bee authorized to be vsed and obserued in the Church of England after that he or they shal be publikely by the Ordinary or some of his Officers for Ecclesiasticall causes admonished to kéepe and obserue the same Or such as shall openly and aduisedly depraue by wordes writings or any other open fact any of the rites and ceremonies at anie time vsed and authorized to be vsed in the Church of England Or that shall say or heare priuate Masse prohibited by the Lawes of the Realme And all such persons shall be compellable to take the Othe vpon the second tender or offer of the same and incurre the penalties for not taking the saide Othe and none other 16 Because diuers seditious and euill disposed people haue lately procured and obtained to themselues from the Bishoppe of Rome and his Sée diuers Bulles and Writings the effect whereof hath béene and is to absolue and reconcile all those that will be contented to forsake their due obedience to the Quéene and to yéelde and submit themselues to the vnlawfull and vsurped authoritie of the saide Bishoppe and his Sée and by colour of the saide Bulles and Writings haue by their lewd practises and perswasions so farre wrought that sundry simple and ignorant persons haue béene contented to be reconciled to the saide vsurped authoritie and and to take Absolution at the handes of the aforesaide subtile practisers whereby there hath growen disobedience in many to absent themselues from diuine seruice and thought themselues discharged from all allegeance to her Maiestie whereby vnnaturall Rebellion hath ensued For redresse whereof and to preuent great inconueniences that might ensue by a Statute made Anno 13. Elizab. 2. it was enacted St. 13. El. 2. That if any person or persons shall vse or put in vre in any place within this Realme Giuing or taking absolution by any bulles from Rome or any the Quéenes dominions any bull writing or instrument written or printed of absolution or reconciliation obtained from the Bishop of Rome or any his successors or from any other person or persons authorized or claiming authoritie by or from the said Bishoppe his predecessors or successors or Sée of Rome Or if any person or persons shall take vpon him or them by colour of any such bull writing instrument or authoritie to absolue or reconcile any person or persons or to graunt or promise to any person or persons within the Realme or any other the Queenes Dominions any such absolution or reconciliation by any speach preaching teaching writing or any other open déede Or if any person or persons within this Realme Obtaining of bulles from Rome or any the Quéenes Dominions shall willingly receiue and take any such absolution or reconciliation Or else if any person or persons haue obtained or gotten since the last day of the Parliament holden Anno 1. Elizab. or shall obtaine or get from the said Bishop of Rome or any his successors or Sée of Rome any manner of bull writing or instrument written or printed containing any thing matter or cause whatsoeuer or shall publish or by any waies or meanes put in vre any such bull writing or instrument Then all and euery such Act and Acts offence and offences shall be déemed and adiudged to be high treason and the offendor and offendors therein their procurers abettors and councellors to the fact and committing of the saide offence or offences shall be déemed and adiudged high traitors to the King and the Realme and being thereof lawfully indicted and attainted according to the course of the Lawes of this Realme shall suffer death and forfeit all their lands hereditaments c. and cattells as in cases of high treason by the Lawes of this Realme ought to be lost and forfeited c. All and euery ayders The forfeiâ—â—res of Ayâ—â—rs Mainâ—â—inors c. after the offence comforters or maintainers of any of the saide offendor or offendors after the committing of any of the saide actes or offences to the intent to set foorth vpholde or allow the dooing drexecution of the saide vsurped power iurisdiction or authoritie concerning the premisses or any part thereof
St. 16. R. 2. 5 shall incurre the paines and penalties containeâ—â—n the Statute of Premunire made Anno 16. Ri. 2. 17 Because diuerse persons euill affected had practised contrarie to the meaning of the foresaide Statute of 13. Elizab. 2. by other meanes than by Bulles or Instruments written or printed to withdrawe seuerall of the Quéenes subiects from their naturall obedience to her Maiestie to obey the vsurped authoritie of the Bishop of Rome and in respect of the same to perswade great numbers to withdrawe their due obedience to her Maiesties Lawes established for the due seruice of God Perswading to the Romish religion For reformation whereof St. â— 3. Eli. 1 and to declare the true meaning of the same Lawe by a Statute made Anno 23. Elizab. 1. it was declared and enacted That all persons whatsoeuer which haue or shall haue or shall pretend to haue power or shall by any wayes or meanes put in practise to absolue perswade or withdrawe any of the Quéenes subiects or any within her Realmes or Dominions from their naturall obedience to her Maiestie or to withrawe them for that intent from the Religion now by her Highnesse authoritie established within her Highnesse Dominions to the Romish Religion or mooue them or any of them to promise any obedience to anie pretended authoritie of the Sea of Rome or of anie other Prince State or Potentate to be had or vsed within her Dominions or shall doe anie ouert Act to that intent or purpose and euerie of them shall be to all intents adiudged to be traitours and being thereof lawfully conuicted shall haue iudgement suffer and forfeit as in case of high Treason And if any person shall by any meanes be willingly absolued or withdrawen as aforesaide or willingly be reconciled Being perswaded to the Romish Religion or shall promise anie obedience to any such pretended authoritie Prince State or Potentate as is aforesaide Then euerie such person and persons their Procurers and councellors thereunto being thereof lawfully conuicted shall be taken tried and iudged and shall suffer and forfeit as in cases of high Treason And for the further confirmation and explanation of the saide Statute of Anno 23. Elizab. 1. and for a more augmentation thereof in some sort there was an other Statute made Anno 3. St. 3. Iac. 4 Iacob 4. whereby it was enacted That if any person or persons shall either vpon the Seas or beyond the Seas or in any other place within the Dominions of the King his heires or successours put in practise to absolue perswade or withdrawe any of the Subiects of the King his heires Practising to absolue or reconcile to the Romish Religion or successours of this Realme of England from their naturall obedience to his Maiestie his heires or successours Or to reconcile them to the Pope or Sea of Rome or to mooue them or any of them to promise obedience to anie pretended Authoritie of the Sea of Rome or to any other Prince State or Potentate Then euery such person and persons their Procurors Aidors Councellors and Maintainors knowing the same shall be to all intents adiudged Traitours and being conuicted shall haue iudgement suffer and forfeit as in case of high Treason And if any such person as is aforesaide either vpon the Seas or beyond the Seas or in anie other place within the Dominions of the King his heires or successours shall be willingly absolued or withdrawen as aforesaide or willingly reconciled or shall promise obedience to anie such pretended authoritie Prince Absolued or reconciled State or Potentate as is aforesaide Euery such person and persons their Procurers Councellours Aidors and Maintainours knowing the same shall be to all intents adiudged Traitours and being conuict shall haue iudgement suffer and forfeit as in case of high Treason But this Clause touching Reconciliation shall not extend to anie person which shall bée reconciled to the Pope or Sea of Rome that shall returne into this Realme and within sixe daies after his returne A reconciled person submitteth before the Bishoppe of the Diocesse or two Iustices of the Peace of the Countie where hée shall arriue shall submit himselfe to the King and his lawes and take the othe of Supremacie ordained Anno 1. Eliz. 1. and the othe set downe in this Act. 18 Whereas diuerse persons called or professed Iesuites Seminarie priests and other priests made beyond the Sea according to the order of the Romish Church haue come and béene sent into this Realme of purpose not onely to withdraw the Quéenes subiects from their due obedienes to her Maiestie but also to mooue sedition rebellion and open hostilitie within her Highnesse Dominions For reformation whereof by a Statute made Anno 27. Elizab. it was enacted That it shall not be lawfull to Iesuites and Priests shall not come into this Realme or for any Iesuite Seminarie Priest or other such Priest Deacon or other Religious or Ecclesiasticall person whatsoeuer St. 27. 2 E. 2 being borne within this Realme or any of the Dominions thereof and héeretofore since 24. Iun. Anno 1. reginae Eliza. made ordained or professed or héereafter to be made ordained or professed by any authoritie or iurisdiction deriued challenged or pretended from the Sea of Rome by or of what name title or degrée soeuer the same shall be called or knowen to come into be or remaine in any part of this Realme or any Dominions thereof other than in such cases and vpon such speciall occasions onely and for such time onely as is expressed in this Act viz. if he be so weake and infirme of body that hée cannot passe out of this Realme And if hée doe then euery such offence shall be adiudged high Treason And euery person so offending shall for his offence be adiudged a Traitor and shall suffer loose and forfeit as in case of high Treason 19 By a Statute made Anno 27. Elizab. it was established That if any the Quéenes subiects not being a Iesuite Seminarie Priest St. 27. El. 2. or other Priest Deacon or Religious or Ecclesiasticall person as is before mentined now being or which héereafter shall be of or brought vp in any Colledge of Iesuites Seminarie persons shall retire into England or Seminaries already erected or ordained or héereafter to be erected or ordained in any parts beyond the Seas or out of this realme in any forraine parts shall not within sixe moneths next after Proclamation in that behalfe to be made within the citie of London vnder the great Seale of England returne into this Realme and thereupon within two dayes next after such returne before the Bishop of the Diocesse or two Iustices of peace of the County where hée shall arriue submit himselfe to her Maiestie and her Lawes and take the Othe set foorth Anno 1. Elizab. 1. Then euery such person which shall otherwise returne come into or be in this Realme or any other the Dominions thereof for
life time for murder of another person And if this man had béene outlawed or otherwise attainted of Felonie in his life time this lease should haue béene forfeited to the King and the wife should haue had no part thereof P. 16. E. 4. 7 P. 9. Eliz. Dyer 262. 45 If one which is felo de se hath a debt due to him vpon a contract No forfeiture of a debt vpon a simple contract and not by specialtie hée shall not forfeit the debt to the King amongst his other goods and chattels for that the sayd debtor shall bée rebutted of his law against the King Pl. Com. 260. 262. 46 If a villeine doe giue himselfe a deadly wound A villeine felo de se and then his Lord seiseth his goods and after the Lord of the same villeine doth seise his goods and then this villeine doth dye within a yeare and a day after the wound giuen and so becommeth felo de se and after the whole matter is found before the Coroner those goods of the villeines shal bée forfeit to the King and the King shall haue them out of the Lords possession for the forfeiture shall haue relation to the wound which the villeine gaue himselfe and that was before the Lords seisure of his goods For if a man doth giue himselfe a deadly wound and dyeth thereof within a yere and a day after all the goods cattels and debts which hee had at the time of the blow giuen or at any time after shall bée forfeited to the King and in his life time hee hath no authoritie to dispose of them after the wound was giuen 4. 5. P. M. Dy. 160 47 A man was bound with two Suerties One mortgaged his goods and then became felo de se for the payment of twentie pounds at two seuerall dayes and the principall debtor for the securitie of his Suerties by his Indenture did sell vnto his sayd two Suerties twentie oxen for twentie pounds with a Prouiso in the Indenture That if hée did discharge or saue them harmelesse of the sayd Obligation of twentie pounds that then the said sale of the twentie oxen should bée void And it was agréed betwéene them that the principall debtor should haue the occupation and vse of the said twentie oxen at the will of the said Suerties and to bée vsed as his owne And after one day of paiment due to the Obligée and no money payd by the seller or principall debtor and before the second paiment was due the seller killed himselfe and became felo de se hauing those twentie Oxen in his possession and the Suerties seised the beasts as their owne And notwithstanding the propertie was in them by the not performance of the condition yet it was adiudged that the Aulmoner should haue the beasts or the money which they were sold for and then hée should discharge the Suerties against the Creditor And so the Aulmoner was awarded to haue in these beasts the best estate of the seller and the same that the Debtor might haue had if hee had payed the debt at the due times which were agréed vpon Homicide by casualtie 48 Though Homicide is most vsually knowne and termed by the killing of one man or woman or more by another man or woman or more yet hominis cedium whereof the same word Homicide is deriued may bée done by some other casualtie though when a man is slayne by some other mischaunce than by the hand or meanes of another man as by the fall of a pit of earth or stone or a trée or killed by a Beare or Bull or such like it is not aptly nor vsually sayd that Homicide is committed but that such a man is slaine 49 When a man commeth to his death by the meanes of any thing that falleth vpon him or by the meanes of a hurt which himselfe receiueth in falling from some other thing without the procurement of another man that thing which is the cause of his death shall bée forfeited to the King taken for a Deodand A Deodand and distributed in almes And it is not materiall whether the thing that killed the man was moouing or not at that time when it killed him for though it were not moouing yet it shall bée taken and accounted as a Deodand as well as if it were moouing Fitz. Cor. 403. M. 6. E. 6. Dyer 77. because all things moouing with the thing which was the cause of the mans death shall bée forfeited in like sort as the principall thing according to the old rule Omnia quae mouent ad mortem sunt Deodanda And yet those goods which bée forfeited as Deodand bée not forfeited vntill the matter be found of Record Co. li. 5. 110 and therefore they cannot be claimed by prescription And the same Iurie which doth find the death of the man must also find and appraise the Deodand A trée and the bough of another tree do kil a man 50 If a man do fell a trée Fitz. Cor. 398. and that trée falleth vpon the bough of another trée which bough falleth vpon a man and killeth him in this case both the bough that killed the man and also the trée which did fall vpon that bough shal be Deodand for they both did moue vnto and were the cause of his death Falling off a cart or from a cart 51 If a man do ride in a cart and the same cart falleth vpon him Fitz. Cor. 388. and killeth him as well the same cart as the horses that drew the cart shall be Deodands And in like sort if a man bee in a cart and by the stirring of the horses which drew the cart or any of them he is cast out of the cart and dyeth thereof Fitz. Cor. 397. Pl. Com. 323. as well the horses which drew the cart as also the cart shall be Deodands for the horses and cart béeing fastened together bée all the cause of the mans death Falling from a cart laden 52 If a man fall from a cart laden with Corne Hay Wood Fitz. Cor. 326. c. and the wheele of the cart breaketh his necke backe or c. whereby hée dieth as wel the Corne Falling from cart that is in lading Hay Wood or c. as the cart shal be Deodands But if a man do fall from a cart as he is lading of Corne Hay Wood Fi. Cor. 326 c. by the stirring of the horses and thereby breaketh his necke backe or c. whereby he dyeth the cart and horses shal be Deodands but not the corne c. for that the corne c. were not the cause of his death If a man that doth driue a cart doe clime vpon one of the whéeles of the cart Fitz. Cor. 409. to gather apples plums or c. and doe fall from that whéele and breaketh his necke back or c. whereof he dieth if it be
the house fearing that they will enter his house and rob him doth cast out vnto them mony or plate which the felons do take and then depart this is robbery for it is in construction of the law taken from the person of a man and for feare 9. E. 4. 26. 29 If one lye in the high way to rob passengers Robbery in will but not in déed and draweth his sword against a man that trauelleth the same way and commaundeth him to deliuer his purse whereupon the same party encountreth him is too strong for him and apprehendeth him or leuieth Huy and Cry and the offendor is thereby taken yet this is no Robberie nor Felony for there was no act done though there was an intent and will to robbe Quia voluntas non reputabitur pro facto 30 Burglary is What is Burglary when one or more persons do in the time of peace breake a house a Church a Wall a Tower or Gatehouse in the night with a felonious intent to robbe kill a man or commit some other Felonie for the which Burglarie the offendor shal be hanged Fit cor 264 22. Ass p. 95 though he take nothing away But that breaking of the house must bee to commit some Felonie For if the offendor be indicted for the breaking of a house to beat some person that is but Trespas 13. H. 4. 8 but if it be to kill another then it is Felony And if a man bée indicted for the breaking of a Close to kill or robbe another it is not Burglarie 1. M. Dy. 99. 31 If a man doe breake a house and doe not enter into it Breaking a house but not entring then it is no Burglarie for a man was indicted Quod burglaritèr fregit ecclesiam in nocte intrauit ad depraedandum bona parochianorum in eadem existentur sed nihil abstulit and this was adiudged Burglary for that the party indicted did enter 32 Burglary cannot be committed in the day but in the night No Burglary in the day for all the indictments of Burglary be Noctantèr fregit St. 39. El. 15. for though by the statute of 39. Eliz. the benefit of Clergie is taken away from any person conuicted for the felonious taking away in the day time of any money or goods of the value of fiue shillings or vpwards in any dwelling house or out-house although no person shal be in the same at the time of the said felony committed and so that offenceis made as penall as Burglary by the losse of the benefite of Clergie yet is it not Burglary for it may be committed in the day time the penaltie of loosing of his Clergy is not inflicted vnlesse the money or goods taken away be of the value of fiue shillings or vpwards Breaking a dwelling house where no person is 33 If a man hath a mansion house Co. li. 4. 40. and he and his family doth vpon some cause goe forth of the house and in the meane time one doth come and breake the house in the night to commit felony this is Burglary For although the owner nor any of his family were in the house yet it is his mansion house for the words of an appeale or indictment of Burglarie be Domum mansionalem ipsius A. B. fregit And in like sort if a man haue two houses and doth inhabite sometime in one of them and some other time in another and hath a familie or seruants in them both and in the night when the seruants be out of the house felons doe breake the house this is Burglarie for that the house is broken ⧠Felonies by Statute ANd now hauing expressed which bee felonies by the common Law it resteth that I declare which be felonies by Statute with the reasons and causes why the same statutes were made so farre as I may be warranted by the same statutes And as in Treasons I began with those Treasons which did concerne the K. and his chiefe magistrates of iustice So in reporting of such lawes and statutes as haue béene made for the supply of some defects at the common Law I will begin with a statute which indeuoreth to restraine such as practise or confederat to destroy the king or his chiefe officers attending on his person or estate 1 For as much as by quarrels made to such as haue béene in great authority office and of counsell with the kings of this Realme hath ensued the destruction of the kings and thereby the vndoing of this Realme so as it hath appeared euidently when compassing of the death of such as were of the kings true subiects was had the destruction of the prince was imagined therby and for the most part it hath growne and béene occasion by enuie and mallice of the kings owne houshold seruants And for that by the lawes of this land if actuall déeds were not had there was no remedy for such false compassings imaginations and confederacies had against any lord or any of the kings Councell or any of the kings great Officers in his houshold or Steward Treasurer Controller and so great inconueniences did ensue because such vngodly demeanor was not straitly punished before that an actuall déed was done for the remedy whereof by a statute made An. 3. H. 7. 14. Conspiring to destroy the king or any lord c. it was ordained St. 3. H. 7. 14. That the Steward Treasurer and Controller of the kings house for the time being or one of them shall haue full authority and power to enquire by xij sad men and discréet persons of the Checke Roll of the kings honourable houshold if any seruant admitted to be his seruant sworne and his name put into the Checke Roll of houshold whatsoeuer he be seruing in any maner office or roome reputed had and taken vnder the estate of a lord make any confederacies compassings conspiracies or imaginations with any person or persons to destroy or murder the king or any lord of this realme or any other person sworne to the kings Councell Steward Treasurer Controller of the kings house that if it be found afore the said steward for the time being by the said xij men that any such of the kings seruants as is abouesaid hath confedered compassed conspired or imagined as abouesaid that he so found by the inquiry be put thereupon to answere And the Steward Treasurer and Controller or two of them haue power to determine the same matter according to the law And if he be put in triall that then it be tried by other xij sad men of the same houshold Challenge And that such misdoers haue no challenge but for mallice And if such misdoers be found guilty by confession or otherwise that the said offence be iudged felony and they to haue iudgement and execution as felons attainted ought to haue by the common law 2 For that vnlawfull and forcible violence and also detestable aduowtrie were committed in
felons and shall incurre the paine of felony And the Iudges of the said Courts of the one Bench or of the other haue power to heare and determine such defaults before them and thereof to make due punishment as is aforesaid 2. R. 3. 10 Br. Cor. 173 If a Iudge doe file an indictment with other indictments The penalties of Iudges or officers abusing Records which was not found by the Iury that did find other indictments Or if he do imbesill or rase a Record or such like this is but misprision in the Iudge but this is felony in another person who is no Iudge and the Iudge shal be indited and arraigned thereof shall make a fine loose his office for this misprision And if the steward of a Liberty doth arraigne a man by the colour of Infangthéefe and doth adiudge him to death the liberty shall be seised therefore but no punishment shal be inflicted vpon the steward for he did it by colour of the liberty and so no felony and if a man do sue another by an action of debt to the exigent wherupon he is outlawed another maÌ„ doth rase the originall the 3. capias the exigent and maketh part in London and the residue in Middlesex and doth write in them W. B. for I.B. this is felony by the foresaid statute of 8. H. 6. which is if a Record in either of the Benches or in the Exchequer bee imbesiled carried away withdrawne or auoided wherby a iudgement shal be reuersed that then it shal be inquired by clerkes of those Courts and others it shal be adiudged by the Iustices of the same court and it shall be ordained as felonie and this rasure doth auoid the whole Record so that it cannot be redressed by error it is a greater offence then if part onely had bin auoided 2. R. 3. 10 and all which be agreeing thereunto be felons 17 By a stat made an 5. H. 4. St. 5. H. 4. 5. it was enacted That the offendors which do cut the tongues or put out the eies Cutting of tongues putting out of eies of any of the K. liege people and that duely proued and found that such déed was done of malice pretenced shall incurre the paine of felony 18 By the stat made anno 5. H. 4. it was ordained St. 5. H. 4. 4. That none shall vse to multiply gold or siluer nor practise the art of Multiplication Multiplication and if any do he shall incurre the paine of felony in this case 19 By the Statute made Anno 34. Ed. 3. and 37. Ed. 3. St. 34. E. 3.22 St. 37. E. 3.19 it was enacted Withholding of a hauke That whosoeuer findeâ—h a falkon Tarcelet Laner Laneret or other Hawke which the owner thereof hath lost shall immediately bring the same to the Sherife of the Countie whâ—ch shall make proclamation in all the good Townes of the Countie that he hâ—th such a hawke in his custodie and if the owner which lost the hawke or any of his seruants come to challenge it and proouâ—th that it is his Maisters hée shall pay for the costs and haue it And if none doe come within foure moneths to challenge it thâ—n the Sherife shall haue the hawke agréeing with him that tooke it vp if hée be a simple man and if hée be a Gentleman and of estate to haue a hawke then the Sherife shall deliuer him the hawke taking reasonable allowance for the kéeping thereof And whosoeuer taketh a hawke and the same concealeth from the owner or from his falkoners or takâ—th away a hawke from the owner or stealeth a hawke and carrieth it away not obseruing the foresaid ordinances and is thereof attainted shall be vsed as a felon which hath stolen a horse or other thing CoÌ„gregatioÌ„s by masons 20 By a Statute made Anno 3. H. 6. St. 3. H. 6. â— it was ordained That Congregations and Confederacies shall not be holden by Masons in their generall assemblies And if any such bee made they that cause such Chapters and Congregations to be assembled and holden if they be thereof conuict shall be adiudged for felons And all other Masons that come to such Chapters and Congregations shall be punished by imprisonment of their bodies and make fine and ransome at the Kings will A Souldier departing from his captaine 21 By the statutes of Anno 18. H. 6. Anno 2. E. 6. 2. and Anno 4. 5. P. M. St. 1â— H. 6. 19 St. 2 E. 6. 2. St 4 5. P. M. 3. it was enacted That if any Souldier man of Armes or Archer which hath taken parcel of his wages of his captaine hath mustred and is entred of record the Kings souldier doth not passe the sea or go with his captaine except notorious sicknesse or impediment by Gods visitation doth stay him which he shal immediatly certifie his captaine and repay his money or els being in the enemies countrey in garrison or elsewhere in the K. seruice where he is appointed to serue doth depart without licence of the kings Lieutenant Deputy high Admirall vice-Admiral Warden Captaine or in their absence of their Deputies then he shall be taken iudged and executed as a Felon without hauing any aduantage of Clergie or Sanctuarie And Iustices of Peace shall haue authoritie to enquire thereof and to heare and determine the same as they do other felonies committed in that Shire where such Souldior shall be taken And by a braunch of a statute wade anÌ„ 5. Eli. it was ordained That the foresaid statute of 18. H. 6. in all pains St. 5. El. 5. 2. lâ—e 25. forfeitures and other things did doth and hereafter shall extend as well to all and euery mariner and gunner A Mariner or Gunner hauing taken or which hereafter shall take prest or wages to serue the king his heires or successors to all intents and purposes as the same did or doth to any souldier S. the statutes of 7. H. 7. 1. 3. H. 8. 5. made to the like effect St. 7. H. 7. 1. 3. H. 8. 5 Co. li. 6. 27. Et Quaere whether the first stat which were made for couenant souldiors or the later stat which were ordained for pressed Souldiors bee or ought to be put in execution wherein haue respect to the meaning of the makers of the foresaid stat of an 5. El. 5. 22 By the statute of Anno 27. El. 2. St. 27. El. 2. it was ordained Receiuing or relieuing of Iesuits That euery person which shall wittingly willingly receiue relieue comfort aid or maintain any Iesuit Seminary priest or other priest made out of the realm of England Deacon or religious or Ecclesiasticall person being at liberty or out of hold knowing him to be a Iesuit Seminary priest or other such priest Deacon or religious or ecclesiasticall person shal for such offeÌ„ce be adiudged a felon without benefit of clergy suffer death
Sorcery whereby any person shall be killed destroyed wasted consumed pyned or lamed in his or her body Lex Athelstani 6. or any part thereof then euery such offendor or offendors their aydors abbettors and counsellors being of any the said offences duely and lawfully conuicted and attainted shall suffer paines of death as a felon or felons and shall loose the priuiledge and benefite of Clergie and Sanctuarie If any person or persons shall take vpon him or them by witchcraft Finding of treasure inchantment charme or sorcerie to tell or declare in what place any treasure of gold or siluer should or might be found or had in the earth or other secret places Or where goods or things lost or stollen should be found or become Declaring where goods lost should be found Prouoking to loue Destroying of any person or cattell Or to the intent to prouoke any person to vnlawfull loue Or whereby any cattell or goods of any person shal be destroyed wasted or impaired or to hurt or destroy any person in his or her bodie although the same be not effected and done Then all and euery such person and persons so offending and beeing thereof lawfully conuicted shall for the said offence suffer imprisonment by the space of one whole yeare without baile or mainprise and once in euery quarter of the said yeare shall in some market towne vpon the market day or at such time as any Faire shal be kept there stand openly vpon the Pillorie by the space of sixe houres and there shall openly confesse his or her error or offence If any person or persons being once conuicted of the same offences as is aforesaid doe eftsoones perpetrate and commit the like offence then euery such offendor being of any the said offences the second time lawfully and duly conuicted and attainted as is aforesaid shall suffer paines of death as a felon or felons and shall loose the benefite and priuiledge of Clergie and Sanctuarie sauing to the wife of such person as shall offend in any thing contrarie to this Act her title of Dower and also to the heire and successor of euery such person his and their title of inheritance succession and other rights as though no such attainder of the auncestor or predecessor had béene made Prouided alwayes That if the offendor in any the cases aforesaid shall happen to bee a Péere of the Realme then his triall therein to bee had by his Péeres as it is vsed in cases of Felony or Treason and not otherwise Hunting with Visors 30 By a Statute made Anno 1. H. 7. St. 1. H. 7. 7 it was ordained That at euery such time as any information shall be made of any vnlawfull hunting by night or with painted faces in Forrest Parke or Warren to any of the Kings Councell or to any Iustice of Peace of the Countie where such hunting shall be of any person suspected thereof It shall bee lawfull to any of the same Councell or Iustice of Peace to whom such information shall bee made to make a Warrant to the Shirife or to any Constable Baylife or other Officer of the same County to arrest and take the same person to haue him before the maker of the same Warrant or any other of the Kings councell or Iustice of Peace of the same Countie And the Counsellor or Iustice before whom such person shall bee brought shall haue power to examine him of the said hunting and of the doers thereof and if he conceale the offence or any offendor it is felony and if he confesse the truth and all that he shall be examined of and knoweth in that behalfe then the offence of hunting by him done shall be against the King but trespas fineable to be assessed at the next generall Sessions by the Iustices there And if any Rescous Rescous or disobedience be made to any person hauing authority to doe execution or iustice by any such warrant by any person which should be arrested so that execution of the same warrant be not had then the same rescous and disobedience shal be felony and the same felony shall be enquired of and determined as other felonies béene Twelue or aboue assembled together to change any law 31 By a Statute made Anno 1. Ma. 1. Eliz. it was ordained St. 1. M. 12 St. 1. El. 16 That if any persons to the number of twelue or aboue being assembled together shall intend goe about practise or put in vre with force of armes vnlawfully and of their owne authority to alter or change any lawes made or established for Religion by authoritie of Parliament which stand in force or any other Lawes or Statutes of this Realme or any of them the same number being commaunded or required by the Shirife of the Shire or by any Iustice of Peace of the same Shire or by the Mayor Shirife Iustices of Peace or Baylifes of any Citie Borough or Towne Corporate where any such assemblies shall be vnlawfully had or made by proclamation in the Quéenes name to retire and repaire to their owne houses and habitations or places from whence they came And they or any of them notwithstanding such proclamation shall remaine and make their abode or continue together by the space of one whole houre after such commaundement or request made by proclamation or after that shall willingly in forcible and riotous manner attempt to doe or put in vre any things aboue specified then as well euery such abode or continuing together as euerie such act or offence that after such commaundement or request by proclamation had or made shall bée attempted to bée done practised or put in vre by any persons being of the number aforesaid shall be adiudged Felonie in all and singular those persons that so shall make their abode and continue together or shall attempt or commit any such act And the offendors therein shall be adiudged Felons and shall suffer onely execution of death as in case of Felony If any persons to the sayd number of twelue or aboue shall intend Practising to destroy parks ponds conduits goe about practise or put in vre in manner and forme aforesayd to ouerthrow cut breake cast downe or digge vp the pales hedges ditches or other inclosure of any Parkes or Parke or other ground inclosed or the bankes of any Fish Pond or Poole or any Conduits for water Conduit heads or Conduit pipes hauing course for water to the intent that the same or any of them from henceforth should remaine open not inclosed or voyd Or vnlawfully to haue common or way in the sayd Parkes or Parke or other grounds or ground inclosed or in any of them or to destroy in manner and forme aforesayd the Déere in any Parkes or Parke or any Warreins or Warrein of Conies or any Doue-houses or any Fish in any Fish ponds or Poole or to pull or cut downe any Houses Barnes Mills or Bayes or to burne any stackes of corne or
ought not to let him goe but the towne where the Constable dwelleth shal be charged with the kéeping of him vntill the next Gaole deliuerie Prisoner by matter of record 24 The law hath two seuerall respects to two sorts of prisoners whereof the one is prisoner by matter of Record and the other by matter in déed A prisoner by matter of Record is when one that is present in Court is committed to prison by the Court. In this case if the kéeper of the prison hath not this prisoner alwaies readie when the Court will send for him Fi. Cor. 466 or else doe shewe a reasonable cause why he cannot haue him the Court will iudge this an escape by the Kéeper without further inquitie But if the Kéeper of the prison bee in this case examined by the court of his prisoner 39 H. 6. 33. and he will say nothing the Court will adiudge it a voluntarie escape Fi. Cor. 352 25 If it be found in the Coroners Roll that one did flie to the Church Escape by a towne and no abiuration is found in the same Roll in this case the court will adiudge an escape vpon the whole towne without further presentment A man killed beeing in carrying to the Gaole And if a man be apprehended for felonie in a towne Fi. Cor. 346 and carried towards the Gaole by certain of the same towne and if he doe resist them whereupon they doe kill him in this case it shal be adiudged an escape vpon that town for in that hee was not safely carried to the Gaole attainted of felonie the king doth loose his escheats 26 When the Deciners doe present that a felon is apprehended for felony Escape by the Sherife and deliuered to the Sherife it will be adiudged an escape if they doe not declare to which Sherife he is deliuered and name him so that his rolls may bée searched and seene whether the prisoner came within the charge of the Sherife Fi. Cor. 345. and if it be not found how he came out of the Sherifs ward according to the law of the Realme an escape shal be adiudged vpon the Sherife 39. H. 6. 33. 27 It is vsed in the Kings Bench A Coroner sent to the Marshalsey to enquire c. to send a Coroner once or twice euery Terme to the Marshalsey to see all the prisoners that be committed to the marshall by matter of Record and if any of them be wanting cannot be found there to set his name in a booke and to informe the Iustices thereof and then the Court will examine the Marshall thereof and if he cannot sufficiently excuse himselfe the Court will record escapes vpon him for euery of them 21. As p. 12. 28 And touching those which bee prisoners of Record Confessing auoiding of an escape the Kéeper of the prison cannot trauerse the escape but confesse and auoyd it as in alleadging that the prison was burnt or broken by the Kings enemies or by saying that he which is supposed to be escaped is not the same prisoner which was committed to him 29 Prisoner by matter in fait is where one is prisoner by arrest onely Prisoner by matter in fait viz. by arrest whether it be by the Sherife the Constable or any other and he doth escape there the Escape shall bee presented before he shall aunswer vnto it And this presentment ought to be before the Iustices of the Kings Bench the Iustices in Eire or some other Iustices that haue authoritie to enquire thereof Before whom an escape shall be presented As it appeareth by the Statute of Westminster 1. the words whereof be these It is ordained St. 3. E. 1. 4. that nothing shall be demanded nor taken nor leuied by the sherife nor by any other for the escape of any theefe or felon vntill it shal be adiudged by the Iustices in Eire And he that shall doe otherwise shall restore to him that paid it so much as he hath receiued and to the King as much And likewise by the Statute of 31. Ed. 3. St. 31. E. 3. 14. it is prouided That the Escape of felons and Clerkes conuict shall bee adiudged by the Iustices and by their viewe leuied And though the foresaid Statute of Westminster the first doth not make mention of any but of Iustices in Eire 21 As p. 12. 27. As p. 1. yet it doth also extend to the Iustices of the Kings Bench because the Kings Bench is in Eire and higher then an Eire for if the Iustices in Eire doe sit in a Countie and the Iustices of the Kings Bench come thither the Eire shall cease Iu. of peace and Coroner shall enquire of escapes 30 And by the Statute of 1. R. 3. St. 1. R. 3. 3. Iustices of Peace may enquire of all manner of Escapes of euery person arrested and imprisoned for felonie And by the Statute of 3. H. 7. St. 3. H. 7. 1. They may enquire of the escape of any that hath committed murder and make certificat thereof into the Kings Bench. And also by the said Statute of 3. H. 7. the Coroner vpon the viewe of the dead body may enquire of the escape of the murderer for if he doe commit the murder in the day and escape the towne shal be amerced And also the Coroner shall deliuer his Inquisition therof to the Iustices at the next Gaole deliuerie of the same Countie Trauerse to a presentment of an escape 31 Vpon an escape for the which no fine is to be paied Fi. Cor. 291 328. 346. but an Amerciament he or they which be charged therewith shal haue no Trauerse to the presentment thereof Quia de minimis non curat lex Escapes inquirable in Leetes and Turnes 32 Although Escapes of felons be at this day inquirable in Léetes and Sherifes Turnes yet it shall not be leuied vntill it be adiudged before the Iustices for that should bee contrarie to the foresaid Statute of Westminster 1. The penalties of escapes 33 The penaltie of him which doth voluntarily suffer one arrested for felonie to escape is the forfeiture of all that he hath because it is felonie The penaltie of him which doth suffer a negligent escape of a felon is to pay a fine The penaltie for the escape of him which was neuer arrested is but an amerciament And if any doe suffer him that is attainted of felonie negligently to escape he shall pay to the King for a fine an hundred pounds And if the partie escaping were but indicted and not attainted then he shall paie to the King for a fine a hundred shillings If one which is not indicted nor taken with the manner nor apprehended at the suit of the partie 42. As p. 5. but onely taken by a straunger for susption of felonie do escape there shal no penaltie nor punishment follow thereof But yet if after the same escape he
said appeale is entred ought to be prisoner in the same Gaole and if not the same appeale is void S. Approuers 19. St. 28. E. 1. 9. H. 4. 2. Yet an approuer may appeale others that are not in prison but at large which is by force of the statute of 28. Ed. 1. de Appellatis And when an appeale is commenced before Iustices of Gaole deliuerie against diuers whereof there is but one in prison before them this appeale ought to be remooued into the Kings bench by a Certiorari and from thence proces shall be awarded against them which be at large Anno 1. M. Dyer 99. And Iustices of Assise may hold plea of appeales of robberie An appeale before Iu. of Assise by the commission of Gaole deliuerie An appeale before the I. of the Kings Bench. 45 As well as Iustices of Gaole deliuerie and the Sherife and Coroners haue authoritie to receiue an appeale by Bill 17. Ed. 3. 13 in like sort Iustices of the kings bench haue power to accept an appeale by Bill for they be the soueraigne coroners of the Realme Appeale against one Bayled 46 If one be in prison for felonie in the Kings bench 21. H. 7. 33. 32. H. 6. 4. or before the Iustices of Gaole deliuerie and after let to baile yet an appeale by bill may be commēced against him for he is a prisoner notwithstanding that bailement for they which tooke him in batle be his guardians and shall be charged if he escape some doe affirme that they may imprison him and some do hold that they shall be hanged for him And vpon his bailement he shall find sureties to answer to all persons No appeale against him that is let by mainprise But an appeale is not to be pursued against him 9. Ed. 4. 2. 39. H. 6. 27. who is let at libertie by mainprise for that he is not in ward No appeale before Iustices of peace 47 Some doe affirme that an appeale may be commenced before Iustices of peace for they haue authoritie by their commission 44. E. 3 44. and by the Statute of 18. Ed. 3. 2. to heare and determine felonies But others doe hold that they must onely procéed vpon indictment found by a Iurie before them and not vpon an appeale prosecuted at the suit of the partie grieued for the words of their commission be Ad inquirendum per Sacramentum proborum legalium hominum de comitatu praedicto per quos rei veritas melius sciri poterit de omnibus omnimodis felonijs c. Et ad omnia singula felonias c. indictamēta praedicta caeteraque omnia singula premissa secundum leges statuta regni nostri Angliae prout in huiusmodi casu fieri consueuit aut debuit audiendum terminandum By which words it is to be inferred that they shall enquire and punish at the Kings suit vpon indictment and not at the parties suit by appeale such felonies as shall bee committed within their Iurisdiction 48 If one of the Kings subiects doe kill another of his subiects in a forrain Realm the wife or next heire of him that was slain as the case requireth An appeale before the Constable and Marshall may haue an appeale of the same death in England before the Constable Marshall of England St. 1. H. 4. 14 by force of the Statute of 1. H. 4. which doth ordaine That all appeales of things committed within the Realme shall be tried and determined by the lawes of the Realme and of things committed out of the realme before the Constable and Marshall of England for the time being And no appeales fromhenceforth shal be made or pursued in Parliament No appeale in Parliamēt Bracton Britton 49 It doth appeare by Bracton and Britton Where there shal be diuers appeales for one felonie and where not that one might haue had in former ages one appeale against the principall and another against the Accessories but since that law is changed viz. The appellant shall haue but one appeale Co. li. 4. 47. in the which he must comprehend as well the principals as the accessories vnlesse it be in speciall cases and that is confirmed by the Stat. of West 1. St. 3. E. 1. 14 which doth ordaine That no person shall be outlawed vpon appeale of commandement force aide or receit vntill the principall be attainted But the appellant shall not let to attach his appeale at the next countie as well against the accessorie as against the principall But the Exigent against the accessorie shall staie vntill the principall be attainted by outlawrie or otherwise 9. H. 4. 1. 50 In an appeale against two if one doe appeare One only appeale for one felonie and the other make default yet the plaintife shall count against them both and the same law which compelleth the appellant to count at one time against them both doth enforce him to sue his appeale against them both for if an appellant doe bring an appeale against one person Co. l. 4. 47 and the appellée is attainted and hanged at his suit and after he will bring an other appeale against one or two others for the same offence he shall take no benefit by his suit for he should haue ioyned thē all in his first appeale 47. E. 3. 16. And the same law is if the first appellée had béene acquited or that the appellant had bin Non suit after apparance 51 It séemeth that in some cases at this day one may haue diuers appeals for one felonie Where diuers appeales for one felonie as if one in one countie doe procure another to robbe a man in another countie In this case the partie robbed shall haue one appeale against the principall in one countie and another against the accessorie in another countie or otherwise he should be without his remedie against the accessorie by Appeale St. 2. 3. E. 6. 24. But by the Statute of Anno 2. 3. E. 6. if one in one countie doe procure another to kill a man in another countie hee to whom the appeale of murder is giuen shall commence his appeale in the countie where the partie shall die S. Br. 37. 26. Ass p. 52 Co. li. 4. 48. 52 And so it is Two appeals founded vpon one felonie if the Appellant doe commence his appeale against the principall within a yeare and a day after the felonie committed and after the said appeale commenced another will receiue the same felon In this case the appellant may pursue another appeale against the said accessorie for these two be seuerall felonies which began at seuerall times S. Br. 35. Robbery of seuerall parcels of goods 53 If a man be robbed of two seuerall parcels of goods at one time he cannot haue two seuerall appeales for them and put parcel of the goods robbed in one appeale and parcel in
proces in Appeale that hee bring the bodies of the apellées to the next countie to answer the plaintife And if the said Serieant do answer at the second county that he cannot find them Proces vpon Appeal before the Coroner thē an Exigent shal be awarded against the principals But the Exigent touching the accessories shall stay vntill the principals be outlawed And so it appeareth by Britton 22. Ass p. 81 Fi. Cor. 234 Fitz. Proces 226. some other authoritie that an Exigent shal be awarded in Appeale of death cōmenced before the coroner in the coūty after the first Capias returned Fitz. Proces 226. Fitz. Cor. 184. St. 25. Ed. 3. 14. 59 But in an Appeale or Indictment of robbery or other felony Proces vpon an Appeale or Indictment of felonie there shal be two Capias awarded before the Exigent And the same is confirmed by these words of the stat de proditionibus made 25. E. 3. viz. It is agréed that after any man be indicted of feloni ebefore the Iust to heare and determine in their Sessions the Sherif◠shal be commanded to attach his body by a writ or precept called Capias And if the Sherife returne in the said precept that the body is not found another writ or precept of Capias shall incontinently be awarded returnable thrée wéekes after and in the same writ or precept it shall bée comprised that the Sherife shall cause to be seised all his chattels and safely kéepe them vntill the day of the writ or precept returned And if the Sherife returne that the body is not found and the indictée commeth not S. Forf 44. the Exigent shal be awarded and the chattels shal be forfeited as the law of the crown commaundeth But if he come and yéeld himselfe or be taken by the Sherife or other minister before the returne of the second Capias then the goods and chattels shall be saued This statute doth not make mention of the death of a man nor of robberie but of felonie generally which includeth all And yet some doe affirme that it was intended to be made onely for robberie and larcenie Fitz Proces 226. but it is prouided for those which be indicted before Iust to heare and determine and not for those against whom an Appeale is commenced before the Coroner and it was rather ordained to seise the felons goods vpon the second Capias than to giue proces Proces against indictées in another county 60 And because some persons appealed or indicted of diuers felonies in one countie or outlawed in the same countie were dwelling or receiued in another county whereby such felonious persons indicted and outlawed haue béen incouraged in their mischiefe for that they might not be attached in another countie for the redresse whereof by a stat made anno 5. E. 3. it was ordained St. 5. E. 3 11 That the Iust assigned to heare and determine such felonies shall direct their writ to all the counties of England where néed shall be to take such persons indicted 61 Because diuers persons for their singular reuenge and not of right malitiously of their subtill imagination haue caused and procured falsly to indict and appeale seuerall of the Kings subiects of diuers treasons felonies and trespasses before I. of peace and other commissioners other Iust hauing authoritie to take indictments or appeals in diuers forreine counties liberties and franchises of England wherein the said liege people neither bee nor euer were conuersant or dwelling By force of which appeales and indictments and the processes therupon made in the said counties franchises and liberties the said persons so indicted haue béen put in Exigent and after outlawed and therupon their goods and chattels lands and tenements haue bin forf and they in great perill of their liues whereas the said persons so indicted appealed or put in Exigent or outlawed had neuer knowledge of such indictmēts appeals Exigents or Outlawries For the preuention whereof it was ordained by the stat of an 8. H. 6. St. 8. H. 6. 10 That vpon euery indictment or appeale by the which any of K. liege people dwelling in other counties Appeale of indictments of persons dwelling in forrein Counties than there where the indictment or appeale shal be taken of treason felony trespas before I. of peace or any other hauing power to take such indictments or appeales or other Commissioners or Iustices in any county franchise or libertie within England before any Exigent awarded vpon any indictment or appeale to be taken in forme aforesaid immediatly after the first writ of Capias vpon euery such indictment or appeale awarded and returned another writ of Capias shal be awarded directed to the Sherife of the county whereof he which is indicted is or was supposed to be conuersant by the same indictment returnable before the same Iustices or Commissioners before whom he is indicted or appealed at a certaine day containing the space of iij. moneths from the date of the said last writ by the which writ of second Capias it shal be contained commanded to the same Sherife to take the body of him which is so indicted or appealed if he may bée found within his bailiwike if he cannot be found within his bailiwike that the Sherife shall make proclamation in two counties before the returne of the same writ that he which is so indicted or appealed shal appeare before the same Iust or Commissioners in the countie liberty or franchise where he is so indicted or appealed at the day contained in the said last writ of Capias to answer to the K. or to the party of the felony treason or trespas whereof he is indicted or appealed After which second writ of Capias so serued and returned if hée which is so indicted or appealed doth not come at the day of the said writ of Capias returned the Exigent shal be awarded against such indictees or appellées and euery of them And if any Exigent be awarded vpon any such indictment or appeale against the foresaid forme or any outlawrie therupon pronounced the sayd Exigent and the Outlawrie thereupon pronounced and euery of them shall bee void And the partie against whom such Exigent is awarded or outlawrie pronounced against the foresaid forme shall not bee endamaged in his life lands goods c. And euery one which is indicted or appealed in forme aforesaid after he is acquited by verdict in forme of law may haue an action vpon the case against euery procurer of such indictments or appeales in which actiō there shal be like proces as in an action of trespas vi armis And if the said procurers be attainted the plaintife shall recouer treble damages But this stat extendeth not to indictments or appeals taken in the countie of Chester Nor to any indictment or appeale of felonie or treason taken of any of the K. liege people which at the time of the same felonie or treason
any person before made béeing by force of the foresaid statute of 11. H. 4. in shirifes and bailifes of Franchises seuerall great extortions and oppressions were done in diuers Counties of this Realme by subtilty and vntrue demeanor of shirifes and their ministers to many persons by making and returning at euery Sessions holden within the said Counties for the body of the shire names of such persons as for the singular gaine of the said shirifes and bailifes would be wilfully forsworne by the sinister labour of the said shirifes and their ministers By reason whereof by their couin and falsehood many true and substantiall persons were diuers times wrongfully indicted of Murthers Felonies and other misbehauiours to the vtter losse of their liues goods and lands and sometime also by the labor of the said shirifs great Felonies and Murthers were concealed and not presented by the said persons partially returned by the same shirifs or their ministers to the intent to compell the offendors to make fines and giue rewards to the said Shirifes and their ministers For the preuention of which enormities by a stat made Anno 3. H. 8. it was established St. 3. H. 8. 12 That all panels to be returned which bée not at the suit of any party Panels for indictments reformed by the Iustices that shall be made and put in by euery shirife and their ministers before any I. of Gaole deliuery or I. of Peace whereof one to be of the Quorum in their open Sessions to inquire for the king shal be reformed by putting to and taking out of the names of the persons which so be impanelled by euery shirife and their ministers by the discretion of the same Iustices before whom such panels shall be returned And the same Iustice and Iustices shall commaund euery shirife and their ministers in his absence to put other persons in the same panels by their discretions And the same panels so reformed by the said Iustices be good and lawfull And if any shirife or any of their ministers at any time do not returne the same panels so reformed then euery such shirife or minister so offending for euery such offence shall forfeit xx l. the one halfe to the king and the other to him or them that will sue for the same by action of Debt at the common law or Bill c. wherin no W.E. or P. shal be allowed and the kings pardon shall be no barre against the party or parties that shall sue the same 9 It is to be thought that by force of the statutes before rehearsed sufficient honest and indifferent Iurors were returned by the shirifes of Counties or that the Panels by them returned were reformed by the Iustices so that if any defect were committed in Indictments or in concealing of offences or offendors then the same was in the Iury which were charged for the body of the Shire to make inquirie for the searching forth of the truth whereof and for the punishment of the said offendors according to their demerites by a statute made Anno 3. H. 7. it was ordained St. 3. H. 7. 1 That the Iustices of peace of euery Shire of this Realme for the time being may doe to take by their discretion an enquest Enquest to inquire of concealments whereof euery man shall haue Landes and Tenements to the yearely value of forty shillings at the least to inquire of the concealements of other Enquests taken before them and before other of such matters and offences as are to bée inquired and presented before Iustices of Peace whereof complaint shall be made by Bill or Bils as well within Franchise as without and if any such concealement be found of any Enquest had or made within the yeare after the same concealement euery person of the same Enquest shall bée amerced for the same concealements by the discretion of the same Iustices of Peace the said amerciaments to bée assessed in plene Sessions 10 For as much as seuerall persons vpon great grounds of vehement suspitions as well of high Treasons petit Treasons and misprision of Treason as of Murthers were many times sent for from diuers Shires and places of this Realme and other the Kings Dominions to the Kings great charges to be examined before the Kings Councell vpon their offences to the intent that conuiction or declaration of such persons should spéedily ensue as the merits of their cases should require And albeit that after great trauaile taken in the examination of such persons it appeared to the said Councell by confession witnesse or vehement suspect that such persons were rather guilty of such offences whereof they were examined then otherwise yet neuerthelesse such offendors so examined by the course of the common Lawes of this Realme must be indicted within the Shires or places where they committed their offences and also tried by the inhabitants and fréeholders of such Shires and places although by their confessions or by sufficient witnes their offences were certainely knowne to the Kings Councell By reason whereof besides the trauaile of the Kings Counsell the King was often put to great charges in remaunding such persons to the countries where they offended there to bée indicted and tried of their offences And sometimes the inhabitants and fréeholders of the Shires or places where such offences were done were compelled to appeare out of their shires or places for such causes to their great charges for the triall or declaration of such offences And sometime by occasion of the charges for remaunding such offendors to be indicted and tryed by the course of the common Law such offendors did lye still in prison and were forgotten whereby many times by the helpe of their confederats they escaped vnpunished to the great courage and euill example of euill doers For the reformation whereof by a statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 23. That if any person or persons being examined before the Kings Councell or thrée of them vpon any manner of Treasons misprision of Treasons or Murthers doe confesse any such offences or that the said Councell or thrée of them vpon such examination shall thinke any person so examined to be vehemently suspected of any Treason misprision of Treason or Murther then in euery such case by the Kings commaundement his Maiesties Commission of Oyer and Terminer vnder his great Seale shal be made by the Chancellor of England to such persons Indictments and trials where the king will and to such Shires and places as shall bée named and appointed by the Kings Highnesse for the spéedie triall conuiction or deliuerance of such offendors Which Commissioners shall haue authoritie to inquire heare and determine all such Treasons misprisions of Treasons and Murthers within the Shires and places limitted by their Commission by such good and lawfull persons as shal be returned before them by the Shirife or his ministers or any other hauing power to returne Writs and Proces for that
but only they that were taken for the death of a man by the cōmandement of the K. or his Iust or for the forest therefore by the stat of W. 1. viz. 3. E. 1. it was ordained St. 3. E. 1. 15 That prisoners which before were outlawed Who are mainpernable and who not and they which haue abiured the realm prouers and they which be taken with the maner and such as haue broken the K. prison théeues openly defamed knowne and such as be appealed by prouers so long as the prouer doth liue except he be of good fame and such as be taken for burning of a house feloniously done or for false mony or for counterfeiting the Kings Seale Or persons excommunicat taken at the Bishops request or for a manifest offence or for treason touching the King shall be in no wise mainpernable by a common writ nor without writ But souch as be indicted of larceny by enquests taken before Sherifs or Bailifs by their office or of light suspition or for petit larceny that amounteth not aboue the value of xij d. if they were not guiltie of some larceny before or guiltie of receit of théeues or felons or of commandement or force or of aid in felony done or guilty of some other trespas for which one ought not to loose life or member And a man appealed of an approuer after the death of the approuer if he be no common théefe nor defamed shal be let out by sufficient suertie whereof the Sherife will be answerable and that without giuing any part of their goods Bailement by the Sherife If the Sherife or any other let one go at large by suertie St. 3. E. 1. 1◠which is not repleuisable if he be Sherife Constable or any other Bailife of fée which hath the kéeping of prisoners and is thereof attainted he shal loose his fée and office for euer And if the Vndersherife Constable or Bailif of such as haue fée for kéeping of prisoners do it contrary to the will of his Master or any other Bailife being not of fée they shal haue iij. yeres imprisonment and make fine at the K. pleasure Withholding of prisoners repleuisable Whosoeuer doth withhold prisoners repleuisable St. 3. E 1. 15. after they haue offered sufficient suerty shal pay a grieuous amerciamēt to the K. he that doth take any reward for the deliuerance of such shall pay double to the prisoner and also a grieuous amerciament to the King 6 By the foresaid Stat. of West 1. 15. it doth appeare that in foure cases a man was not mainpernable at the common law In what cases no mainprise at the common law viz. they that were taken for the death of a man or by the Kings commandement or of his Iustices or for the forrest Touching the death of a man it is intreated of before And as concerning the Kings commandement this is intended the Kings commaundement The kings commandement by his owne mouth or by his councell which is incorporat to him doe speake with the Kings mouth and by authoritie from him Or otherwise if those words should be taken his generall commandement it may be said that euery Capias in a personall action is the Kings commandement for it is Precipimus tibi quod capias c. and yet in that case the defendant is repleuisable by the common law And as touching the Iustices commandement The Iustices commandement this shall be intended their absolute commandement for if it be their ordinary commandement he is repleuisable by the Sherife sauing in certain cases prohibited by the statute 7 Because in times past diuers persons that were indited of felonies robberies larcenies did remoue the same inditements into the K. Bench there yéelded themselues prisoners were presētly bailed by the marshals of the same Bench and after did lie in wait to kill or misuse their inditors And also for the certain persons appealed of felonie after the Exigent awarded did yéeld themselues in the K. Bench St. 5. Ed. 3. 8 then were let to baile by the marshals of the said bēch for the preuention whereof it was enacted by a statute made an̄ 5. E. 3. The marshall of the Kings bench shall baile no prisoner That such inditées and appellées shal be safely and surely kept in prison according to the charge which the said marshals shal haue of the Iustices And the marshals of the K. Bench shal not baile any felons but shal kéep them in prison and shal not suffer them to go wandring abroad by baile nor without baile And if any such prisoner be found wandring out of prison by baile or without baile that be proued at the K. suit or the parties the marshals which shal be found guilty thereof shal be halfe yeare imprisoned ransomed at the Kings pleasure And the Iustices shal inquire therof when they sée cause And if the marshals suffer the prisoner to escape by their assent they shal be at the law as before time they haue bin And so it appeareth by this Stat. that imprisonment by commandement of a Iustice was not sufficient to restraine bailement in all cases where bailement was not prohibited by the law A Iustices ordinarie cōmandement and absolute vntil the foresaid Stat. of an̄ 5. E. 3. was made and that is to be intended of an ordinarie commandement of a Iu. for if he doe giue an absolute commandement the prisoner is not baileable As if the Iustice command one to prison without shewing cause why he doth so command or for misdemeanor done in his presence or for some other cause which lieth in the discretion of the Iustice more than in his ordinary power 8 The fourth cause why a man is not repleuisable by the common law is the forrest St. Char. Forest 16. for whereas by the Statute of Charta forestae made an̄ 9. H. 3. and confirmed by King E. 1. The king did graunt for him and his heires that of trespasses committed in his Forrests of vert and venison that the Forresters in whose Bailiwickes such trespasses should be committed should present the same trespasses at the next Swanimot before the Forresters Verderers Regardors and Agistors and other ministers aforesaid by the oathes as well of Knights as others wise and lawful men and not suspitious of the parts next adioyning and néerest where those trespasses shal be so presented and where the truth may best and most certainly be inquired of and the same truth being once found out those presentments by the common assent and agreement of all the Officers aforesaid shal be solemnely written sealed with their seales And if any inditement be made in other manner it shal be accounted void And because the chiefe wardens of Forrests did not obserue the said order but that diuers people were disherited ransomed and vndone by the chiefe wardens of the Forrest on this side Trent and beyond and by other
murderer was voide and consequently the finding of the flying The diffrence of the Coroners and the Iustices authoritie But if one man be indicted of felonie as principall and another as accessorie after the offence committed before Iustices and the principall is attainted by verdict and the accessorie is acquitte and it is found that hée did flie for the felonie he shall forfeit his goodes for that Iustices assigned haue authority to enquire as well of accessories after the felonie committed as of accessories before the felonie The forfeture for petit larcenie 4 If one be indicted but of petit larceny Fi. Cor. 406 and vpon his arraignement be thereof acquit and it is found that hée did flée for the felonie he shall forfeit his goods And likewise if he be attainted of petit larceny he shall forfeit his goods but not his lands 5 This flying away whereupon the forfeiture of goods doth ensue may be as well where the offendor doth flie before arrest Forfeiture vpon flying before arrest as where he doth flie after arrest as if a man that is vehemently suspected to haue committed a murder or other felonie is attempted to be arrested by the Shirife Coroner or anie others and hée doth flie away and is pursued and because hée will not yéelde himselfe to the Kings peace Fi. Cor. 289 290. 312. and be taken is slaine in the pursuite by those that would haue arrested him or by some others that did come to assist them and that be presented of record before the Iustices hauing authoritie to enquire thereof Forfeiture without attainder In this Case his goodes shall be forfeit to the King although being slaine hée could neither be acquit nor attainted of the felonie whereof hée was suspected And yet if this man had béene taken aliue and that it had béene found that he had fled for the felonie 42. As p. 5. if hée had not also béene indited of the felonie hée should haue forfeited nothing for without an indictment it could not be prooued that a felonie was committed and he could not flie for a felonie if none such were done S. Bra. 30. 22. Ass p. 81 41. Ass p. 13 Co. l. 5. 110 6 If Processe be awarded vpon an appeale or indictment of felonie against any person who doth absent himselfe and not appeare vntill the Exigent shall be awarded against him Forfeiture vpon the Exigent awarded this long absence which is a flieing in Lawe shall cause him to forfeit his goodes although after he be acquit of the felonie And the reason is for that it doth appeare of Record that hée did flie or withdraw himselfe when he absented himselfe vntill the Exigent was awarded against him But if he hath any reasonable excuse of his absence as that he was in prison at the time of the Exigent awarded or beyond the Sea Fitz. forf 19. 31. or such like reasonable excuse then he shall not forfeit his goodes and yet if the Defendant in an appeale were out of prison at the time of the awarding of the Exigent against him and after when the Outlawrie was pronounced against him he was in prison by his imprisonment he may reuerse the Outlawrie but he can not reuerse the awarding of the Exigent which was lawfully awarded against him whereupon the forfeiture of his goods did accrue to the King And the like Lawe is if the King had pardoned the felonie before the Exigent awarded and the offendor had found suretie in the Chauncerie according to the Statute of Anno 10. Edw. 3. 3. yet if the Exigent were after awarded against the offendor 43. E. 3. 18. the offendors goodes should not be forfeited for it doth appeare of Record for what cause the goodes were saued viz. because the felonie was pardoned and therefore the awarding of the Exigent against him vpon an indictment of felonie is reuersable whereupon he should forfeit his goods 7 If an appeale be pursued against two viz. against one of them as principall and against the other as accessorie and the Exigent is awarded against the accessorie 43. Ed. 3. 17 before the principall is outlawed the accessorie shall not forfeit his goodes St. 3. E. 1. 14 though hée did flie for the felony for the Statute of Westminster 1. hath ordained That no person shall be outlawed vpon appeale of commaundement force aide or receipt vntill the principall shall be attainted No forfeiture by the accessorie vntil the principall be attainted And yet the appellor shall not let to attach his appeale at the next Countie as well against the accessorie as against the principall But the Exigent against the accessorie shall staie vntill the principall be attainted by Outlawrie or otherwise But this is intended of an appeale commenced by Bill and not by Writ for in an appeale by Writ it doth not appeare who is principall and who is accessorie 43. Ed. 3. 17. vntill the appellant hath declared against them Forfeiture notwithstanding apparance and pleading 8 If an Exigent be well awarded against the defendant 43. Ed. 3. 17. and then hée doth appeare and the appellant doth count against him notwithstanding there be a default in the Writte or Count whereuppon the Writte doth abate yet the defendants goodes shall be forfeit for by the awarding of the Exigent the goodes shall be forfeit and no Count which the plaintife can make after shall cause the defendant to haue his goods againe And when the defendant hath appeared and pleaded the processe is determined which processe is the Kings title and thereunto the defendant hath made no aunswer The forfeture of a Clarke conuict 9 A Clarke conuict shall forfeit his goodes viz. he that is indicted or appealed of felonie and thereunto pleadeth Not guiltie and vppon his arraignement doth desire to be tried by his Countrie which findeth him guiltie of the felonie and then hée praieth his Clergie before iudgement of death is giuen against him is called a Clarke conuict He that committeth homicide by misaduenture Pomicide by misaduenture shall forfeit his goodes 4. H. 7. 2. And so shall hée which doth kill a man in his owne defence Killing in his owne defence forfeit his goods And likewise he that killeth himselfe and is felo de se Felo de se shall forfeit his goodes And he that being indited of felonie will stand mute Standing mute not answer directly or challenge peremptorily aboue twentie persons shall forfeit his goodes Forfeiting of a right or action 10 In some cases an offendor shall forfeit a right or a thing whereof hée hath no possession but onely an action or title thereunto As if goodes be wrongfully taken or holden from the possession of the owner and after the owner is attainted of treason or felonie those goodes shall be forfeited to the King 6. H. 7. 9. and the Court of the Kings Exchequer may award processe
against the possessor of them to bring them into the same Court. And so the King shall haue the benefite of an action of trespasse Forfeiture of a trespasse which the partie attainted might haue had against the other for those goodes wrongfully taken or holden away But if he that was attainted were beaten or mayhemed by another the King shall not haue an action of trespasse of battery 29. As p. 63 30. Ed. 3. 4 appeale of mayheme or other remedy against that partie which did the foresaid iniurie to the person attainted for that the money to be recouered by the action of trespasse is reduced to no certaintie And if money be owing to a man by obligation or simple contract Forfeiture of a debt and after he to whome the money is payable is attainted of treason or felonie Fi. Cor. 343. that obligation and duetie shall be forfeited to the King And if one man or more be bound by obligation to two men or more for the paiment of a summe of money or any other dutie Ioynt debt forfeited and one of the Obligées is outlawed or attainted of treason or felonie the King shall haue the whole Obligation and the money or dutie arising or payable thereby 19. H. 6. 47. 28. H. 8. Dy. 30. and the King or he to whom the King will giue the same debt shall haue an action in his owne name to recouer it which action shall bée maintainable though there be variance betweene the action and the specialtie 50. As p. 5 28. Ed. 3. 92 And in like sort if a man be Receiuer to another of his money An account forfeited and hee to whom he is receiuer be attainted of Treason or Felonie after office found thereof the King may haue a Scire facias against the Receiuer to receiue this money and by that meanes the King shall haue the benefit of the action of account which the partie attainted might haue had Forfeitiâ—g of an interest And in some cases an offendor in treason or felonie shall forfeit an interest in lands whereof he himselfe neuer had or could haue possession but an authoritie to dispose As if hée that hath the reuersion of lands in fée simple whereof another hath the possession for the terme of yeares 14. El. Dy. 309 doth graunt and assure this land to others to the vse of himselfe for terme of his life and after his decease to the vse of the Executors and Assignes of the grauntor for the terme of twentie yeares next after the death of the grauntor the remainder ouer in taile and after the grantor is attainted of treason by Act of Parliament and all his lands tenements goods and cattels which he had to his owne proper vse were forfeited to the King and vested in his actuall possession without office and the grauntor died intestate without assignement of this lease In this case the King shall haue this terme of twentie yeares as forfeit to him for it was an interest in the grauntor and did and might well remaine in him in expectancie notwithstanding his estate for the terme of his life and if the grauntors executors should haue had this lease they must not haue enioyed it to their owne vse but as assets in their hands And though the King shall haue such goods The King shall not pay the attainted persons debts debts money due vpon accounts and interest in lands as were due to the partie attainted of treason Fi. Cor. 317 334. or felonie yet he shall not pay such debts as the said person attainted did owe. 11 As in the cases aforesaid and some others a person attainted may forfeit goods debts and rights whereof he hath no possession but onely an action or title so in some other cases hee may forfeit goods whereof he hath no propertie but onely a possession As if a man deliuer money out of a bagge Forfeiting of goods wherein the offendor hath no propertie or corne out of a sacke to another to kéepe and to restore againe when the owner will require it if the partie to whom the money or corne was deliuered be attainted of Treason or felonie the money or corne shal be forfeited to the King and the partie who deliuered the same hath no remedie to recouer it for the first owner who deliuered it cannot prooue that it was his money when it was out of a bagge or that it was his corne when it was out of a sacke for that one sort of money cannot be knowne from another nor one sort of corne from another Fi. Cor. 317 3â—3 But if the money were deliuered in a bagge or the corne in a sacke then the owner that deliuered it may come vnto the Iustices before whom the offendor is attainted and shewe the deliuerie of it and signifie that it was to be restored vpon his request whereof the Iustices shal enquire by an Enquest of office and if his suggestion be found to bée true hee shall haue his money or corne againe But if the money or other thing deliuered by the owner be conuerted to another commoditie then the law is otherwise as if a man deliuer money to another to buy wooll or some such other commoditie and to worke it lay it vp or to kéepe it in his house Fitz. Cor. 334. and the partie to whom the money is deliuered doth buy wooll or c. and bringeth it to his owne house and then is attainted of Treason or Felonie the King shall haue the wooll or c. as forfeit and the partie who deliuered the mony is without remedie to recouer his money or the wooll or c. for though hée might haue had an action of Account against the partie to whom hee deliuered his money if he had liued and remained vnattainted yet hée shall haue no action or remedie against the King Forf for default of pursuit 12 If a man doe steale goods at diuers times from seuerall men and he is attainted at the suit of one of them for the goods stolne from him 44. E. 3. 44. but is not attainted at the suit of the others by this attainder the felon shall forfeit to the King not onely his owne goods but also the goods stolne from those other at whose suit hée was not attainted though hee had no propertie but only a possession in those goods for a felon hath no propertie in goods stolne A felon hath no property in goods stolne but it doth alwayes remaine in the right owner which propertie in this case for default of pursuing the felon is forfeited to the King Forf of other mens goods his owne 13 In like sort if a man doe steale goods from another Fi. Cor. 318 and before his attainder hée doth kill himselfe hée shall forfeit to the King not onely his owne goods but also the goods which hée did steale from that other though hée had no propertie but
should be forfeited to the King from the time of his flying vntill the presentment and also that the King should haue the yeare day and wast S. Br. 30. But this land shall not come to the Lord of the fée by Escheat because hée was not attainted of felonie Pi. Cor. 332 38 The King shall not haue the yeare day The yere day and wast of a Clerke conuict Land of small value and wast of the lands of a clerk conuict neither shall the Lord of the fée haue the forseiture thereof for that the offendor is not attainted but onely conuict of felonie And if the land of the felon attainted be but of the yearely value of thrée or foure shillings or of so small value Fi. Cor. 327 that it will cost more to obtaine it by suit out of the Kings hands than it is worth then the King shall not haue the yeare day and wast thereof St. 17. E. 2. 16 39 The words of the foresayd Stat. of Praerogatiua Regis be If they haue any fréehold When the K. shall haue the felons yeare day and wast it shall bée presently seised into the Kings hands This word presently ought to bee intended immediatly after the Office found and not before 49. E. 3. 11. Fitz. N. B. fol. 144. And therefore if an Office of that land bee not found vntill it bee many yeares after the felons attainder yet from the time of the Office found vntill a yeare and a day after the King shall haue the Felons lands And also the King shall haue the profit of the Felons lands from the time of his attainder vntill the Office bée found thereof though it bée twentie years betwéene the attainder and the Office for the heire of the felon cannot haue it in respect of the corruption of bloud And the Lord must not haue it by Escheat vntill the King bée intituled vnto it by Office and vntill one yeare and a day after and vntill the King hath wasted it vnlesse the Lord doth agrée with the King in the meane time for the sayd yeare day and wast And moreouer Fitz. Trauerse 48. 4. E. 3. 47. the Lord cannot at any time enter into the same land as escheated vnto him vntill hée hath sued a writ to haue it deliuered vnto him out of the Kings hands for after a writ is awarded to find the land of him that is attainted of Felonie another Writ shall bée directed to enquire if the King hath had the yeare Regist fol. 165. day and wast and that beeing found the Lord shall haue the land out of the Kings hands and not before because though the attainder of the Felon was found and that the King ought to haue had the yeare day and wast yet it may bee that the King neuer had the profit thereof but was interrupted by some pâ—â—â—on or by some casuall meanes 40 This commoditie to the King and forfeiture of the felon of the yeare Fit Cor. 310 day and wast is such a benefit to the King and so firmely and highly annexed to the Crowne The yere day and wast not grantable froÌ„ the Crowne that it cannot be seuered from it or granted to any other neither can any person claime it by colour of any franchise or libertie But after the King is intituled vnto it by Office hée may graunt or commit the land to another during the yeare and day and also giue him authoritie to take the benefit of the wast What goods of felons the king shal haue 41 The words of the foresaid stat of Praerog Regis be The K. shal haue all the goods of felons which be condemned and which bee fugitiue which is as much to say as he shall haue all their goods mouable and vnmouable for the King shal haue the corne growing vpon the land of the felon attainted and the issues and profits of the land which he hath in his owne right or in the right of his wife during the time of his life or vntill he doth purchase his pardon But touching the profit of fugitiues lands there is a difference betwéene a flying presented before the Coroner and a flying found by verdict vpon an acquitall for vpon a flying presented before the Coroner Forfeiture vpon flying Fi. Cor. 296 344. he shall forfeit the profits of his lands vntill his death or vntill he be acquit or vntill he hath purchased the K. pardon but vpon a flying found by verdict vpon acquitall he shall forf no issues of his lands for by his acquitall the land is discharged and consequently the issues thereof From what time forf of land shal haue relation 42 The law hath restrained offendors in Treason and Felonie to certaine times to make alienation of their lands and goods and hath prefixed limits whereunto the forfeiture of their said lands and goods shall haue relation and yet with this difference That as soone as any Treason or Felonie is committed the offendor therein is restrained to make any alienation of his lands for then it is not his land but by the committing of the Treason or Felonie Pl. Com. 263. 30. H. 6. 5. Bracton Fitz. Forf 30. Bracton l. 2. 13. hee hath forfeited all the estate which he had therein And therefore if betwéen the time of the committing of the Treason or Felonie and of the offendors attainder thereof the offendor doth make any alienation or assurance of his land after the time that the offendor shall be attainted of the same Treason or Felonie the said assurance shall bée void whether the same attainder bée by verdict confession or outlawrie for the forfeiture of the land shall haue relation from the time of the offence committed From what time the forf of goods shall haue relation 43 The forfeiture of goods and chattels shall not looke backe so farre as forfeyture of landes nor shall haue relation from the time of the Treason or Felonie committed but from the time of the Attaynder of the Treason or Felonie And therefore if one doe commit Treason or Felony Fi. Forf 30 and in the meane time betwéene the Treason or Felony committed and the offendors attainder thereof the offendor doth giue away his goods this is a good gift for as yet they be not forfeit but be his owne to maintaine himselfe and his family vntill he be attainted of Treason or Felony and by the Law adiudged not worthy to possesse or enioy goods nor to haue sustenance And therefore if vpon a fugam fecit presented before the Coroner one doe forfeit his goods he shall not forfeit those goods that hée had at the time of the Felony committed but he shall onely forfeit those goods which he had at that day when the fugam fecit was presented against him And in like sort if one that is indicted of Felony be acquit thereof by verdict and in their verdict the Iury doe find Fi. Cor. 296 that
possession in law and not in déed notwithstanding the death of him which is attainted But by the stat of an 33. H. 8. the king shal haue the lands St. 33. H. 8. 20. goods cattels and all other things of the offendors attainted of high Treason without any office the words of which stat be these viz. If any person or persons shal be attainted of high Treason by the course of the common lawes or statutes of this realme in euery such case euery such attainder by the common law shal be of as good strength value force and effect as if it had bin done by authoritie of Parliament And the K. his heires and successors shall haue as much aduantage by such attainder as well of vses rights entries conditions possessions reuersions remainders and all other things as if it had bée done and declared by authoritie of Parliament and shal be déemed and adiudged in actuall and real possession of the lands tenements hereditaments vses goods chattels and all other things of the offendors so attainted which his Highnes ought lawfully to haue and which they so being attainted ought or might lawfully loose and forf as if the attainder had bin done by authoritie of Parliament without any office or inquisition to be found of the same Any law statute c. notwithstanding By force of which stat the King shall be in actuall and reall possession of those lands which do escheat vnto him by any attainder of high Treason An office of those lands which do escheat for felonie without any office or inquisition thereof found though for those lands which do escheat vnto him by any attainder of felonie there must be an office found for him before he can enter according to the antient course of the common law Forf of title of Dower 54 By the common law any man attainted of Treason or felonie should haue forfeited that title which his wife had by their espousals to be endowed of his lands to the intent that if the care of his owne life could not stay him from the committing of felony or treason yet the loue which he did beare to his wife and children should restrain him therof whom he was assured by that wicked act to vndoe and vtterly to depriue them of all likelihood wherewith to maintaine them And some do affirme that this law was at the first deuised to punish the wise and to auoid her dower for that it was intended that the wife gaue consent vnto or at the least did know of the Treason or Felonie which her husband committed and either by intreatie persuasion or some other meanes might haue withdrawne him from it But the common law in that case is altered by the stat of Anno 1. Ed. 6. St. 1. E. 6. 12 whereby it is enacted That albeit any person or persons of what estate condition or degrée he or they be shal fortune to be attainted conuicted or outlawed of any Treason petit Treason Misprision of treason Murder or Felony whatsoeuer yet that notwithstanding euerie woman that is or shall fortune to be wife of the person so attainted conuicted or outlawed shal be endowable and enabled to demaund haue and enioy her dower in like maner and forme as though her husband had not béene attainted conuicted or outlawed Any statute law custom c. notwithstanding But after some part of the foresaid stat of Anno 1. E. 6. was altered by a braunch of a stat St. 5. 6. E. 6. 11. made Anno 5. 6. Ed. 6. whereby it was prouided and enacted That the wise or wiues whose husband or husbands hereafter shal be attainted of any Treasons whatsoeuer they be shall in no wise be receiued to aske challenge demand or haue dower of any the lands tenements or hereditaments of any the person or persons to be attainted of treason as is aforesaid during the said attainder in his force And yet sithence the foresaid stat of 5. 6. Ed. 6. it was specially prouided and ordained by the stat made Anno 5. El. 1. Anno 5. El. 11. An. 18. El. 1. That the husbands attainder of treason by force of any of the foresaid stat should cause no forf of dower in the wife S. Br. 27. Br. Appeale 117. Fitz. Iudg. 225 Plo. Com. 261. 55 If in an Appeale the Appellée do wage battell What the Appellée that wageth battell shall forf and the Appellant doth slay him in the field the Appellee shall forf all his goods chattels but his land shall not escheat for inheritance is so greatly fauoured that it shall not be forf without attainder by iudgement But if the Appellant do vanquish the Appellee then his land shal be forf for when he is vanquished and not killed iudgement shal be giuen that he shal be hanged and by that meanes he shall forf his land 6. H. 8. Dyer 2. 56 If a man seised of land in fée A rent charge pro consilio not forfeited doth grant a rent charge out of the same to another for the terme of the life of the grantee pro bono cōsilio suo impendendo with clause of distres within the same land if the grantée of this rent charge be attainted of treason and committed to prison yet hee shall not forf this rent charge to the K. for it is incident to the cause for the which it was giuen viz. to the counsell to be giuen by the grantée to the grantor which was a trust that the grantor reposed in the grantée to giue him counsell which trust the grantée cannot assigne or forf to another And though the grantée of this rent charge be attainted of treason and imprisoned yet the grantor may come or send to him for his counsel and he may giue it him and so there wil be no fault in him But if a man do purchase a rent charge for the time of his life out of another mans lands in consideration of a summe of money paid by the grantée to the grantor and after the grantee is attainted of treason or felony the same rent charge shal be forf to the K. and paid to him during the life of the grauntée S. Br. 27. The forfeitures of an Outlaw 57 Out of all which foresaid forfeitures Bracton de coron̄ c 13 the words of Bracton may be verified who writeth That a man outlawed or otherwise attainted of Treason or Felony shall forfeit his coūtrey and kingdome and shall become a banished man who in English is called an Outlaw And in former times he hath béene tearmed a Friendlesse man and so he hath séemed to forfeit his friends for if any man after his Outlary doth willingly féed him receiue him kéepe company with him or hide him he shal be punished in the same sort that the Outlaw shall Also he shall forfeit all things which be peaceable séeing that from the time he is an Outlaw he carieth a Wolues head so
man be slaine within the K. house verge That all Inquisitions vpon the view of persons slaine within any of the Kings Palaces or houses or any other house at such time as he shall bee abiding in his royall person viz. within Edifices Courts places gardens orchards or houses within the Porters ward of any of the house or houses aboue rehearsed or within any gardens priuie walkes orchards tylt-yards wood-yards tenice playes cocke fights bowling allyes neere adioyning to any of the houses aboue rehearsed and being part of the same or within two hundred foot of the standard of any outward gate or gates of any of the houses aboue rehearsed commonly vsed for passage out or from any of the house or houses aboue specified shal be taken by the Coroner of the houshold of the King or his heires without adioyning of any other Coroner of any Shire by the othes of twelue or more of the Yeomen officers of the Kings c. houshold returned by the two Clerkes Comptrollers the Clerkes of the Checke Clerks Marshall or one of them for the time being of the foresayd houshold to whom the sayd Coroner shall direct his Precept which Coroner c. shall be assigned by the L. Steward for the time being And the said Coroner shall from time to time for euer without delay certifie vnder his Scale and the Seals of such persons as shal be so sworne before him all such Inquisitions Indictments and Offices vpon the view of all dead bodies which shall bee slaine within any of the K. Palaces or houses or other house aforesaid before the sayd L. Steward and in his absence before the Treasurer Comptroller and Steward of the Marshalsey or before two of them whereof the said Steward of the Marshalsey to be one And such Inquisitions and Offices so certified shal be taken as good to all intents as any Inquisition taken vpon the view of the bodie of any person being dead by any Coroner of any countie of this Realme hath béene or shal be adiudged St. 28. E. 1. 3 18 Whereas the foresaid stat of 28. E. 1. hath ordained One man Coroner of the K. house and of the county That if the death of a man doth chance in any county where the K. house is and within the Verge the Coroner of the same countie shal be commanded with the Coroner of the K. house to execute his office and to inroll it But if a murder or manslaughter be found within the countie of M. within the Verge by an Inquisition taken before one which is then both one of the Coroners of the county of M. and also Coroner of the K. house Co. li. 4. 46. and then there one is indicted of the same murder or manslaughter this is a good indictment for the intent and meaning of the said stat of 28. Ed. 1. is performed though not by two persons yet by one man hauing two offices and also the mischiefe recited in the said Act is auoyded for though the Court doth remoue yet the Coroner of the county may procéed ⧠Who shall be Iudge of Treason and Felonie 1HAuing written at large of Treasons and Felonies and shewed what sorts and how many of either of them there be and which of those were deliuered vs by the common law and which ordained by statute And declared who be principals and who be accessories in the said crimes how the offendors therein vpon a pricke and guilt of conscience doe ofttimes breake prison and indeuor to escape and how by Huy and cry and other means they be apprehended and brought to be tryed by the iustice of the law how they be accused by Appeals or Indictments in what sort they shal be restained and kept sub custodia legis in prison or by mainprise or bail vntil they haue answered their said offences And also hauing expressed what pleas the partie accused hath to plead for himselfe or other helps to defend himselfe by whom and what means those pleas shal be examined and what fauours bee affoorded him in the tryall therof and what iudgement execution forfeitures the law doth inflict vpon those that in contempt of her do commit the said capitall and most grieuous offence And further hauing dilated how a true man being vpon malice and falsly charged with felony by an Appeale or Indictment shall in some satisfaction of his discredit and losses recouer damages against the appellant his abettors or the conspirators And hauing laid open the authority duty of the Coroner who is a most antient officer of trust in this Realm a speciall preseruer of the peace of the King and the kingdome I am now lastly to write who shall bee Iudge in the foresaid Treasons and Felonies and shal inflict punishment vpon euerie transgressor of the said lawes according to his desert Wherein is to be considered that the dead letter of the common or statute law cannot be that Iudge to inquire of felons examine them commit them to prison indict them arraigne them allow them their lawfull triall examine their causes and yéeld them iustice according to their seueral demerits by acquital or condemnation but it must be Lex loquēs viz. That Iudge must be a man of learning and vprightnesse which by his mouth will speake and attribute to euery person that which the wisdome and integritie of his heart doth conceiue to be iust lawfull and due vnto them And though that Iudge ought so to be countenanced and protected by the regall authoritie that he shall not néed to feare the face of any man for doing of iustice and shall be enabled to crush and suppresse all offences within his iurisdiction yet the king himselfe cannot be that Iudge The K. cannot be Iudge in Treason or Felonie nor sit in iudgement in causes of treason or felonie because he is one of the parties to the iudgement for al treasons felonies be done be supposed to be done contrary to the peace crowne dignitie of the K. And further the escheates and other forf of lands leafes goods and cattels which do come by the attainder of any person of treason or felonie do for the most part by the law accrue to the king And so if the King might be Iudge hee should bee Iudge in his owne cause which Ius gentium doth not permit But the King by his Commission may commit that authoritie to others who may iudge betwéene him and the supposed offendor What sort of men ought to be Iudges And the King ought to make choyce of such a man to be Iudge as is wise and doth feare God who hath truth in his mouth and no couetousnesse in his heart who will neither decline from the troden path of iustice to the right hand nor to the left for the hope of prosperity or feare of aduersitie nor will draw the Kings sword to reuenge his owne wrongs who will denie iustice to none neither himselfe will expect or
enacted That the wife or heire of any person murdered or slaine Iudges in appeale of murder or manslaughter as case shall require may commence their Appeale in proper person at any time within the yere after the felony done before the Sherife Coroners where the said felonie and murder was done or before the King in his Bench or Iustices of Gaole deliuerie 9 To the intent to inable the Iust Iustices of Nisi prius Iudges in felonie treason of Nisi prius to giue iudgement of such persons as be either attainted or acquit of treason or felonie by a stat made an 14. H. 6. it was established St. 14. H. 6. 1 That the Iust before whom Enquests Inquisitions and Iuries shal be taken by the K. writ of Nisi prius according to the form of the stat thereof made shall haue power of all the cases of felony and of treason to giue iudgement Though this stat of 14. H. 6. doth giue authoritie to Iustices of Nisi prius to giue iudgement as wel vpon acquital 10. Ed. 4. 14 as vpon attainder of treason or felonie notwithstanding if in an Appeale the defendant bée acquit before them they cannot award damages against the plaintife Awarding of damages and inquiring of abettors nor inquire of abettors for their power by this stat extendeth but to treason and felonie onely wherof they may giue iudgement and of nothing else for the awarding of damages and inquiring of abettors doth yet remaine as it was at the common law St. 33. H. 8. 23. 10 By the stat of Anno 33. H. 8. it is ordained Iudges of murders by speciall commission That if any person or persons being examined before the K. Counsell or thrée of them vpon any maner of murders do confesse any such offences or that the said Counsell or thrée of them vpon such examination shall thinke any person so examined to bée vehemently suspected of any murder then in euery such case by the kings commandement the K. Commission of Oyer and Terminer vnder the great Seale shal be made to such persons and to such Shires or places as shal be appointed by his Highnesse for the spéedie tryall conuiction or deliuerance of such offendors which Commissioners shall haue authoritie to inquire heare and determine all such murders within the Shire and places limited by their Commission by such good and lawfull persons as shall bee returned before them by the Sherife his minister or other hauing power to returne writs proces for that purpose in whatsoeuer other Shire or place within the K. dominions or without such offences were cōmitted But Péers of the realme being indicted of the said offence shall be tried by their Péeres This stat was also made for the triall of treasons and misprision of treasons by speciall commission But by the stat St. 1. 2. P. M. 10. of an 1. 2. P. M. it was enacted That all trials to bee made for any treasons shal be only vsed according to the course of the common law 11 Where Traitors Pirats Théeues Robbers Murderers and confederators vpon the Sea many times escaped vnpunished because the tryall of their offences hath heretofore béene ordered iudged and determined before the Admirall or his Lieutenant or Commissarie after the course of the Ciuile lawes the nature whereof is that before any iudgement of death can be giuen against the offendors either they must plainly confesse their offences which they will neuer doe without torture or paines or else their offences must be so plainely and directly prooued by witnesses indifferent such as saw their offences committed which cannot bée gotten but by chaunce at few times because such offendors commit their offences vpon the Sea and many times murder and kill such persons being the ship or boat where they commit their offences which should bée witnesse against them in that behalfe and also such as should beare witnesse bee commonly Mariners and shipmen which because of their often voyages and passages vpon the Sea depart without long tarrying and protracting of time to the great costs and charges as well of the King as such as would pursue such offendors For reformation whereof by a Statute made Anno 28. H. 8. it was enacted That all Treasons St. 28. H. 8. 15. Felonies Robberies Murders and Confederacies committed in or vpon the Sea or in any other Hauen Riuer Créeke or place where the Admirall or Admirals haue or pretend to haue power authoritie or iurisdiction shall bee inquired tryed heard determined and iudged in such Shires and places in the Realme as shall bée limited by the Kings Commission or Commissions to be directed for the same in like forme and condition as if any such offence or offences had beene committed or done in and vpon the land And such Commissions shall bee had vnder the great Seale directed to the Admirall or Admirals Iudges in piracie where the Admirall hath iurisdiction or to his or their Lieutenant Deputie and Deputies and to three or foure other such substantiall persons as shall bee named or appointed by the Lord Chauncellor for the time being from time to time and as oft as néed shall require to heare and determine such offences after the course of the common lawes of this land vsed for Treasons Felonies Robberies Murders and Confederacies of the same done and committed vpon the land within the Realme And such persons to whome such Commission or Commissions shall bee directed or foure of them at the least shall haue authoritie to inquire of such offences and euerie of them by the othes of twelue good and lawfull inhabitants of the Shire limited in their Commission in such manner and forme as if such offences had beene committed vpon the land within the same Shire And euerie Indictment found and presented before such Commissioners of any Treasons Felonies Robberies Murders Manslaughters or such other offences committed or done in or vpon the Seas or in or vpon any Riuer Hauen or Creeke shall be good and effectual in the law And if any person or persons happen to be indicted for any such offence done vpon the Seas or in any other place aboue limited then such order Proces Iudgement and execution shal be vsed had done and made to and against euerie such person and persons so being indicted as against traitors felons and murderers for treason felonie robberie murder or other such offences done vpon the land as by the law of this Realm is accustomed And the trial of such offence or offences if it be denied by the offendor or offendors shal be had by xij lawfull men inhabited in the Shire limited in such commission which shall be directed as is aforesaid No challenge for the hūdred and no challenge to be had for the Hundred And such as shal be conuict of any such offence or offences by verdict confession or proces by authoritie of any such commission shall haue
and suffer such pains of death losses of lands goods and cattels as if they had béen conuicted of any treasons felonies robberies or other the said offences done vpon the land without benefit of Clergie or Sanctuarie Prouided alwayes that this Act shall not extend or be preiudiciall to any person or persons for taking of any victuals Taking things vpon necessitie gables ropes anchors or sayles which any such person or persons compelled by necessitie taketh of or in any ship which may conueniently spare the same so the same person or persons pay out of hand for the same victuall gables ropes anchors or sayles mony or mony worth to the value of the thing so taken or doe deliuer for the same a sufficient bill obligatorie to bée payd in forme following viz. if the taking of the same things bée on this side the straits of Marrok then to bée payd within foure monethes and it beyond the said Straits then to be paid within twelue monethes next ensuing the making of the sayd bill And that the makers of the sayd bils well and truely pay the same debt at the day to be limited within the said bills Prouidâ—d alwayes Commissions directed into the fine ports that whensoeuer any such Commission for the punishment of the offences aforesayd or of any of them shal be directed or sent to any place within the iurisdiction of the fiue Ports that then euery such Commission shall bee directed vnto the Lord Warden of the sayd Ports for the time being or to his deputie and vnto thrée or foure such other persons as the Lord Chauncellor for the time béeing shall appoint And that when any Commission shall be directed vnto the fiue Ports for the inquisition and tryall of any of the offences expressed in this Act that euerie such inquisition and tryall to be had by vertue of such Commission shall be made and had by the inhabitants in the said fiue ports or the members therof Any thing in this Act to the contrarie notwithstanding So much of this stat as concerneth the triall of treasons is altered by the stat of Anno 1. 2. P. M. 10. and the same made triable onely by the course of the common law St. 18. E. 3. 2 12 The Iustices of peace of euery county by vertue of the K. commission to them directed and by force of the stat of Anno 18. Ed. 3. be Iudges in felonie Iust of peace Iudges in felonie and haue authoritie to heare and determine felonies the words of which stat be these viz. Two or thrée of the most worthy men of counties shal be assigned kéepers of the peace by the K. commission and at what time need shall bée the same with otherwise and learned in the law shall be appointed by the K. commission to heare and determine felonies and trespasses done against the peace in the same county and to execute punishment reasonably according to law reason and the maner of the fact And the words of the kings commission which doth authorize Iustices of peace to be Iudges of Felonie and to heare and determin felonies amongst others be these viz. Iacobus Dei gratia Angliae The words of the commission of the peace Scotiae Franciae Hiberniae Rex fidei defensor c. Praedilectis A. B. C. D. E. H. c. Salutem Sciatis quod assignauimus vos quoslibet duos vel plures vestrum Quorum aliquem vestrum A. B. C. D. vnum esse volumus Iustitiarios nostros ad pacem nostram in comitatu nostro Buckingham conseruandam ad inquirendum per sacramentum proborum legalium hominum de comitatu praedicto per quos rei veritas melius sciri poterit de omnibus omnimodis felonijs transgressionibus c. ac de omnibus singulis alijs malefactis offensis de quibus Iustitiarij nostri pacis legitimè inquirere possunt aut debent per quoscunque aut qualitercunque in Comitatu praedicto factis siue perpetratis Vel quae in posterum ibidem fieri vel attemptari contigerit c. Et ad omnia singula Felonias c. indictamenta praedicta ceteraque omnia singula praemissa secundum leges statuta Regni nostri Angliae prout in huiusmodi casu fieri consueuit debuit audiendum terminandum And though it doth plainely appeare by the words of the foresayd Commission that the King doth giue authoritie to Iustices of Peace to inquire of heare and determine all manner of Felonies viz. as well of such as bée made Felonies by Statute as of such offences as were Felonies by the Common law yet because there hath béene a scruple and question moued by some that the foresaid Statute of Anno 18. Edw. 3. did meane and was to bee expounded to giue authoritie to Iustices of Peace to inquire of heare and determine those felonies onely which were at the time of the making of that Statute felonies viz. That were felonies by the Common law and not to giue them authoritie to inquire of heare and determine those offences as felonies which were made felonies by seuerall Statutes ordained sithence that time and that the Kings Commission authorised by that Statute did giue them no further authoritie than that Statute meant Therefore not to adde to the law but to satisfie euerie reader and to make that thing more plaine and perspicuous to all men which to some did séeme doubtfull the makers of the stat of anno 8. El. 3. touching the transporting of shéepe and of the stat of anno 25. H. 8. 6. ordained against buggery and of the stat of anno 18. H. 6. 19. established to punish Souldiers that depart from their Captains without licence and of the stat of an 39. El. 4. an 1. Iac. 7. touching dangerous and incorrigible rogues and of the stat prouided an 39. El. 17. against wandering souldiers and mariners and of the stat of an 22. H. 8. 11. established against the cutting downe of powdike and of the stat of an 43. El. 13. enacted against the carrying away of any persons against their wils out of Cumberland Northumberland Westmerland or the Bishopricke of Durham did by speciall words ordaine that the I. of the peace of the counties wherein any of the foresaid seuerall offences were committed should haue authoritie at their generall Quarter Sessions to inquire of heare and determine the said offences And the like authoritie was giuen by the said seuerall stat to the Iust of Assise and Iust of Gaole deliuerie to inquire of heare and determine the said offences in the counties where the same were committed within their seuerall commissions And by the stat of an 1. E. 4. it waâ— ordained That the I. of peace of euery county St. 1. E. 4. 2 shal haue authoritie and power to arraigne and deliuer all person and persons indicted or presented befor the Sherifes Vndersherifes their Clerks Bailifs or Ministers
or any of them in their Turnes or Lawdayes And as of other felonies 3. H. 7. 5. 5. E. 6. D. 69 9. H. 4. 1. so I. of peace may inquire of murder Murder because wilfull murder is felony But Iust of peace cannot inquire of treason Treason for neither the before mentioned stat of 18. E. 3. nor the words of their commission do authorise them so to do The Lord of a Mannor Iudge in felonie 13 There be some that haue libertie of Soc and Sac Tol and Them Bracton de Corona cap. 35. 2. R. 3. 10. Infangthéefe and Outfangthéefe these in their own courts may giue iudgement of him who is found within their liberty possessed of any manifest theft as if he be hand hauing and back bearing and that Sathaber viz. he whose the goods be do pursue him Kel fol. 150 for vnlesse he be in possession of the goods though another doth pursue him as a théefe yet that Court Hundred or Wapentake cannot hold plea of such a theft nor make inquirie by the Countrey whether such a man which was not possessed of the goods bee culpable or not Neither shall any wage battell without possession It is called Infangtheefe Infangthéefe where a Theefe is taken possessed of goods stolne within any such Manor or Libertie who is commorant and dwelling within the same libertie and one of the said Lords owne people Outfangthéefe Outfangthéef is a théefe that is a stranger comming from some other place into the Mannor of the Lord who hath such a libertie and is there taken with the manoure And yet he that hath such a libertie cannot fetch one of his owne people who hath committed larcenie out of his libertie and bring him into his libertie and iudge him there according to his libertie for euery person must receiue the punishment of the law where he hath offended the law But he may giue iudgement as well against his own people as against strangers committing larcenie that be taken within his libertie 46. Ed. 3. 15 14. H. 4. 15 And in this libertie of Infangthéefe and Outfangthéefe and in waife and stray and wreck of the sea a man may prescribe but so he cannot do in goods of felons and fugitiues for they do belong to the Crowne and cannot passe without the Kings graunt Fitz. Prescription 65 14 The custome of some countrey is such A felon first executed and then iudged that if one hath committed burglarie or other felonie and he be pursued by huy and cry from towne to town and so taken flying he must be beheaded in the presence of the inhabitants of foure townes and so by the vsage of that countrey he is accounted a felon And this must be recorded in the Coroners roll and after the Coroner must present it before the Iustices and they will adiudge him a felon And so he must be first put to death and after iudged a felon FINIS ⧠The generall Titles of this Booke 1MEnace Assault Batterie Jmprisonment Maiheming 2 Riots Routs vnlawfull and rebellious Assemblies 3 Force and Forcible Entries and Forcible detaining of possessions 4 Forgerie 5 Periurie and Subornation of Witnesse 6 Maintenance Champertie Embracerie 7 Deceit Couin Collusion Fraud 8 Extortion Exaction 9 Oppression 10 Treasons 11 Homicides 12 Felonies by the common Law 13 Felonies by Statute 14 Principall and Accessorie 15 Breaking of Prison and Rescous 16 Escapes of Felons 17 Pursute by Huy and Cry 18 Appeales of Felony 19 Jndictments 20 Mainprise and Bayle 21 Confession of the offence 22 Approuer 23 Sanctuarie and Abiuration 24 Pleading not guilty 25 Triall of the plea of not guilty by Battell 26 Triall by Peeres 27 Triall by the Countrey 28 Challenges 29 Euidence 30 The Verdict 31 Clergie 32 The Kings Pardon 33 Standing mute or answering indirectly 34 Judgement and Execution 35 Forfeitures for Treason or Felony 36 Corruption of Blood 37 Restitution of stolne goods 38 Dammages in an Appeale 39 A Writ of Conspiracie 40 The Coroner and his authority and dutie in Felonies 41 Who shall be Judge in Treason and Felonie ⧠A briefe effect of euery Braunch or Chapter in this Treatise Menace Assault Batterie Imprisonment Maiheming Fol. 1. 1 THe euill fruits of menaces Menacers shal be imprisoned The enormitie of libelling and defaming 2 The differences of Menacing Assault and Batterie 3 The declaration in trespas of menacing A rebuke accounted a Menace or Assault 4 Menacing a seruant wherby he departeth out of seruice 5 Menacing a tenant whereby he departeth from his tenancie Menacing of a Lords Freeholder 6 Menacing which is iustifiable 7 Menacing by going or riding armed 8 Wearing of a priuie coat a Menace 9 Labourers shall weare no weapons to preuent Menaces 10 Assurances made by Menace 11 What is an assault What is a batterie 12 Iustifying of beating in his owne defence Barre in trespas of Assault and Batterie 13 Iustifying of beating in defence of others The mastâ—rs remedy for beating of his seruant 14 Batterie in defence of his goods Battery in defence of his land lease or way 15 Batterie in resisting of a Iustice of Peace 16 A Schoolemaster beateth his Sholler 17 A Master beateth his Prentice 18 Beating of a man that is franticke 19 Beating of one that will not yeeld to arrest 20 Beating of a seruant departing out of seruice Beating of a Ward 21 Commaundement of Batterie 22 Battery or hurting at some exercise or disport 23 Battery by whipping of a vagabond Punishments by the order of Law 24 Battery for disobeying of a writ or warrant 25 Arresting one in a Church that is doing diuine seruice 26 Disturbing of a Preacher in his Sermon 27 Chiding in a Church or Churchyard Smiting in a church or churchyard Drawing or smiting with a weapon in a Church or c. 28 Drawing of blood within the kings palace 29 Assaulting one which commeth to the Parliament Assaulting the seruant of a Parliament man The liberty of the Clergie at a Conuocation house touching assaults 30 Assaulting a Iudge or Iuror Striking in time or place of iustice 31 Arresting by watchmen 32 Trespas for a battery before Outlawrie 33 A man first indicted for batterie and after sued for the same 34 What imprisonment is Voluntary consent no cause of imprisonment 35 Imprisonment by the commandement of the king or his Iustices c. 36 Imprisonment for notorious and grieuous offences 37 Imprisonment for offences done vi armis 38 Imprisonment for Riots 39 Imprisonment for holding land with force 40 Imprisonment of one that is pursued by huy and cry 41 Imprisonment of him that doth breake the peace Arresting of suspected persons 42 Imprisoning of him that doth attempt to rob 43 Assisting him to arrest that hath a warrant 44 Breaking of a house to arrest in what case lawfull 45 The shirife doth arrest and doth not returne his writ 46 Arresting vpon suspition of felony Causes of suspition of felony
47 Arresting vpon doubt of Manslaughter 48 A Iustice of peace his Warrant to arrest a felon 49 Arresting of an offendor and committing him to the Constable 50 Imprisonment vntill he had made an Obligation 51 The seruant not chargeable for the masters offence by imprisonment 52 No imprisonment by force of a Iusticies 53 Imprisonment by force of a warrant vpon a Supplicauit 54 Arresting him that would breake the peace 55 Imprisoning of a seruant that doth assault his master 56 In what cases imprisonment is lawfull and in what not 57 Imprisonment for offences done to the Iustices of the realme 58 What is maiheming 59 How many sorts there bee of maiheming 60 Examination of a maihem by the Iustices or Surgeons 61 Where diuers appeales of maihem for one offence 62 Principall and Accessarie in maihem The iudgement in an appeale of maihem 63 Mainprise in an appeale of maihem 64 Why maihem is supposed to be done feloniously 65 Barres in an appeale of maihem 66 Execution in an appeale of maihem 67 An action of Trespas maintenable after an appeale of maihem 68 The peace preserued and affraies restrained by Iustices of Peace The commission of the peace 69 The cōmission doth chiefely respect the peace Why they be called Iustices of the peace Binding suspected persons to their good behauior 70 A Iustice of Peace may take surety of the peace What the surety of the Peace is Certificat of a Recognisance The surety of good abearing 71 For whom and against whō the surety of Peace is to be graunted 72 Vpon what causes the surety of peace is to be graunted 73 Surety of peace enioined by word or writing 74 The seruing of Proces for the peace A warrant of the peace Who may serue it without writing and who without shewing it and who not Refusing to obey the warrant 75 To which Iustice of Peace the party arrested is to be brought 76 A warrant to find sureties to keepe the peace The party must offer his sureties 77 Surety of Peace doth dye with the king The Iustices authority dyeth with the king 78 The sureties of the Peace must be named 79 Hee that is bound to the Peace must appeare at a day prefixed 80 A Supersedeas for the peace 81 Taking a Recognisance for the keeping of the peace Taking a Recognisance for the good abearing 82 A Release of the suretie of Peace The parties release of the peace The Iustices Release of the Peace 83 Causes of the breach of the Peace or good abearing 84 The Sherife Constable and seuerall other officers be conseruators of the Peace 85 Euery able person when need requireth must be a conseruator of the Peace 86 Menaces Assaults Batteries c. in some cases are punishable in the Starre-chamber Riots Routs vnlawfull and Rebellious Assemblies Fol. 24. 1 The enormity of Riots Statutes ordained to preuent forces or Riots 2 The Court of Star-chamber authority to punish Riots c. 3 What is a Riot 4 What is an vnlawfull assembly 5 What is a Rout. Rout by wearing of armour 6 Lawfull assemblies of three persons or more An assembly lawfully begun doth end riotously 7 Disturbing of Riotors 8 The Iustices and Shirifes c. shall arrest Riotors Recording of a Riot 9 Inquiry of a Riot by the Iustices c. A Precept to the Shirife to returne a Iury to inquire of a Riot The forme of an inquisition of a Riot 10 Certifying of a Riot Trauerse of a Certificat 11 Proces against offendors 12 The forfeiture of Iustices which doe not inquire of Riots 13 A Commission to inquire of the Iustices c. default 14 Vpon the Commission the Coroner shall returne the Iurie What issues shal be returned vpon the Iurors 15 Where the Sherife shall returne the Iury and not the Coroner 16 A Writ directed to inquire of Riots 17 Riots shal be inquired of at the Kings costs 18 The punishment of Riotors 19 Each man shall helpe to represse Riots 20 Baylifes of Franchises Riots in Cities and Townes corporat 21 A Iury to inquire of Riots 22 Maintenance wherby a riot is not found 23 What one Iustice of Peace may do alone in a Riot 24 The Iustices must haue notice of a Riot 25 The parties agreement no discharge of the inquisition of a Riot 26 What power of the Countie the Iustices shall vse to represse Riots 27 The Iustices record of a Riot where no trauerse thereunto 28 The credit of the Iustices Record Certificat of a Riot 29 The proces against Riotors 30 The penalty for not executing of this statute 31 A trauerse to an indictment of Riot 32 Twelue or aboue assembled to change lawes 33 Practising to destroy Parks Ponds Conduits Common or Way Destroying of Deere Conies Douehouses Fish Pulling downe houses burning stackes of corne c. 34 Raising of vnlawfull assemblies by acts or words 35 Relieuing them which bee assembled 36 Vnlawfull assemblies aboue two and vnder twelue The remedy of the party grieued 37 Raising of power to suppresse vnlawfull assemblies 38 A copiholder being required refuseth to serue the king 39 A farmer required refuseth to serue 40 Disclosing a commotion wherein one is moued 41 An able person required refuseth to serue 42 Attendance vpon a Lieutenant 43 The forme of the Proclamation 44 Hinderance of the Proclamation 45 Other mens rights saued 46 Procuring others to offend 47 Vnlawfull assemblies by xl or aboue 48 A Lieutenant shall not appoint a deputie 49 Aiding of the offendor before the offence 50 The attainder of those offences no corruption of blood Force and Forcible Entries Fol. 34. 1 Vnlawfull force is an enemie to peace There shall be no forcible entry into lands 2 The penalty of forcible entry into lands or benefices 3 Holding possession by force Feoffement of lands for maintenance An Assise or action of Trespas against a disseisor by force The authority of officers in Cities and Towns enfranchised touching force 4 A speciall Assise against a disseisor with force 5 Seuerall remedies for seuerall offences by force 6 A Precept to the Sherife to impanell a Iury. The Shirifes forfeiture for not due executing of a Precept The proces against offendors in force 7 The forme of a Precept to the shirife to impanell a Iury. 8 The forme of an inquisition of forcible entry 9 A warrant to the Shirife to make restitution 10 Restitution awarded out of the Kings bench 11 No restitution but where forces is found by inquisition 12 Where no restitution against three yeares possession Where restitution notwithstanding three yeares possession 13 A Supersedeas to stay restitution 14 Where force found and yet no restitution 15 A Mittimus to send to the Gaole such as doe hold land by force 16 A Iustice may enquire of Forcible Entries without complaint 17 In an action of forcible entry the writ must be Vi armis 18 Who may bring an action of Forcible entry 19 He that hath title entereth by force 20 Hee that
in houses Wast in gardens Wast in men 10 Oppressions redressed by an Audita querela 11 Oppression by forestallers Ingrossers and Regrators Who is a Forestaller Who is an Ingrosser Who is a Regrator The punishment of Forestallers c. In what cases ingrossing and regrating be tollerable Changing of seed Buying and selling of cattell aliue The authoritie of I. of peace in these cases Trasporting allowed by Iustices When corne may bee transported Buying and selling of fish neere the Sea Drouers licenced to buy and sell cattell 12 Oppression by badgers laders c. Obseruations necessarie in all licences 13 Oppression of Printers and Stationers Oppression by Printers and Stationers 14 Oppression by transporting of gold and siluer 15 Oppression by transporting of copper c. 16 Oppression by Pewterers 17 Oppression of inhabitants of Market Townes 18 Oppression by taking of seuerall farmes Taking of farmes in the Isle of Wight 19 Oppression by keeping of many sheepe 20 Oppression by spiritual persons in taking of farmes Oppression by them in buying and selling Oppression by them in farming of Parsonages Oppression by them in keeping of Tan-houses or Brew-houses 21 Oppression by taking of excessiue toll 22 Oppression ought not to be done to aliens and strangers 23 Oppression by making of yron workes 24 Oppression by Brewers 25 Oppression by bringing into the Realme woollen cards 26 Oppression by erecting of Weares Oppression by destroying of spawne or fry of fish Oppression by fishing with vnlawfull nets 27 Oppression by buying and selling of fuell 28 Oppression by transporting of victuall 29 Oppression by vsurie 30 Oppression by cutting out the head of a conduit Oppression by burning of a cart laden Oppression by cutting out the tongue of a beast Oppression by cutting off the eares of a man Oppression by barking of trees 31 Oppression by hawking or hunting in corne growing 32 Oppression by taking of other mens fish 33 Oppression by decaying of townes and houses of husbandry 34 Oppression by decaying of tillage 35 Oppressions and all the former offences punishable in the Starre chamber Treasons Fol. 109. 1 What is Treason 2 A repeale of former Treasons Offences made Treason by Stat. 3 Compassing or imagining the death of the King c. A conspiracie by diuers executed by some of them 4 Leuying of warre or adhering to the Kinges enemies 5 Counterfeiting the K. Seale Conspyrators and ayders in Treason 6 Counterfeiting the Kings money Coyners of money by warrant doe abuse it 7 Petit Treason A seruant killeth his master or mistresse The wife conspireth to kill her husband 8 The sonne killeth father or mother 9 Treason in breaking of prison An indictor discouereth counsel 10 Treason by statute Treason by forging the coine of other realmes Treason by forging the Kings signe manuell 11 Bringing into the realm money counterfeit 12 Treason by clipping washing or filing of money 13 Treason by diminishing scaling or lightning of money 14 Treason by the maintaining the authoritie of the Bishop of Rome 15 The othe touching the Q. supreame gouernment Praemunire for the first refusall of the othe Treason for the second refusall of the othe 16 Treason for giuing or taking absolution from Rome Treason to obtaine Bulls from Rome 17 Treason to persuade to the Romish religion Treason to be persuaded to the Romish religion Practising to absolue or reconcile 18 Treason for Iesuites or Priests to come into the Realme 19 Treason in Seminary priests not returning 20 What Misprision of Treason is The forfeiture in Misprision 21 Misprision to counterfeit money not currant 22 Misprision to ayd persuaders to the Romish religion 23 Misprision to conceale reconciliation offered 24 Misprision to inroll an indictment not found 25 Misprision in drawing of a sword to strike a Iudge sitting in his place 26 Misprision in striking of a Iuror in a Iudges presence 27 Misprision by striking a man in Westminster Hall the Court sitting 28 Misprision by rescuing of a prisoner arrested by a Iudge 29 Shedding of bloud within the K. house 30 Triall of Treasons committed out of the Realme 31 Outlawrie of offendors in Treason being out of the realme 32 Triall of Treasons committed in Wales 33 The force of attainder of Treason by the common law 34 No record of Attainder shal be reuersed where the offendor is executed 35 Felonie made Treason by statute 36 An English traitor subiect to a forreine prince 37 An Alien borne committeth Treason 38 A subiect ioyneth the Kinges Armes to his owne Homicide Fol. 120. 1 Homicide by Iustice By necessitie By chaunce or misfortune By will 2 Homicide by Iustice The order of law not obserued in the execution of iustice 3 None may kill a man that is outlawed or attainted in Praemunire 4 Killing of a felon that wil not be arrested Euerie person may arrest a felon Killing of such as be vnlawfully assembled 5 Killing of him that is in carying to the gaole 6 Killing of a prisoner attempting to escape 7 Killing him that attempteth robberie or burglarie 8 Killing of an offendor in a Parke c. 9 Vnitie of possession in a chase or mannor 10 One killing of another in combat 11 Homicide vpon necessity in defence of his house from burning Homicide in defending himself from robberie 12 No forfeiture for Homicide vpon necessitie 13 Killing of another in his owne defence in his owne house 14 Necessitie ineuitable requisit in homicide in his own defence The definition of Homicide in his owne defence 15 Where in Homicide in his owne defence his goods shall bee forfeited and where not 16 Killing a man in his own defence found by verdict 17 The prisoner indicted for killing in his owne defence must plead not guiltie 18 How he shall be discharged that killeth a man in his owne defence 19 What is Homicide by misaduenture 20 The like order in misaduenture as in his owne defence 21 What is Homicide by murder What is Homicide by manslaughter 22 The name of murder Murder more grieuous than felonie 23 Wilfull poysoning is murder 24 Stabbing to death is murder 25 Murder by killing of a Constable comming to part a fray Murder by killing of a Sherife or his Officers in seruing of Proces Murder by killing of a watchman 26 Murder and Manslaughter committed in the death of one man 27 A man bearing malice to one killeth another 28 A man giueth poyson to one another taketh it and dyeth 29 Two agreeing to commit a Murder one of them doth it 30 Meaning to kil without the act is not Homicide Act in killing without meaning is Homicide 31 Homicide by giuing poisoned drinke to another 32 Many do attempt to doe an vnlawfull act and one of them doth kill a man 33 Homicide by carrying a sicke man into the ayre or cold 34 A man dyeth vnder the Physitians or Chirurgians care 35 Homicide vpon the euill words of another 36 Homicide by a Franticke man Homicide by a man that is deaf and dumbe Homicide
Lord shall haue a Writ of Escheat and where he may enter 52 The forme of a Writ of Escheat 53 The kings remedy for lands escheated vnto him An office for those lands which doe escheat for Felony 54 The wiues forfeiture of title of Dower 55 What the appellee that wageth battell shall forfeit 56 A Rent-charge pro consilio not forfeited 57 The forfeitures of an outlaw Corruption of Blood Fol. 239. 1 Corruption of Blood salued by Parliament only 2 Where corruption of blood shall preiudice tenant by the courtesie 3 The eldest sonne attainted during his fathers life 4 Where attainder but no corruption of blood Restitution of stolne goods Fol. 240. 1 Restitution of goods vpon Fresh suit 2 What conuiction shal be sufficient to giue the owner restitution of his goods 3 Where the owner shall haue restitution 4 Before whom and by whom inquirie of Fresh suit is to bee made 5 Restitution vpon attainder by indictment Damages in Appeale Fol. 242. 1 The punishment of the appellant and the abettors when the appellee is acquit No Essoine for the appellant in an appeale of death 2 The appeale must bee commenced vpon malice 3 The statute of 13. Ed. 1. extendeth to all Felons 4 The defendant in an appeale acquited by battell 5 Where the accessarie in an Appeale shall recouer dammages 6 Where the defendant is said to acquit himselfe in due manner and where not 7 Acquitall at the Kings suit is only in appeale 8 What Iustices may inflict the penaltie vpon the Appellant 9 The dammages for seuerall persons assessed seuerally 10 Where the appellant shall pay a fine to the king 11 In what cases inquiry shall be made for the abettors 12 What pleas the abettors may plead 13 Proces against the abettors Nonsute in the proces against the abettors 14 A writ against the abettors by the appellee 15 Procurers of indictments for suits in spirituall courts A Writ of Conspiracie Fol. 245. 1 In what case a Writ of Conspiracie doth lye 2 Conspiracie maintenable vpon an acquitall in an indictment or appeale 3 The indictment must be false which giueth the Writ of Conspiracie 4 Conspiracie doubtfull whether true or false 5 The conspirators do become indictors A Iustice of Peace A giuer of Euidence 6 Who be conspirators 7 A Conspiracie must bee by more then one Where only one shal be charged in Conspiracie 8 No Writ of Conspiracie against the Husband and the Wife 9 The forme of the Writ of Conspiracie 10 The writ of Conspiracy for the accessarie 11 Barres in a writ of Conspiracie 12 Iudgement in Conspiracie A villanous iudgement 13 Inquiry of Conspiracie by Iustices 14 Inquiry of Conspirators at the kings or parties suit 15 Procurers of an indictment or an appeale in a forraine county 16 An offence supposed to bee done in a place where there is none such The Coroner and his authoritie and dutie in Felonies c. Fol. 249. 1 The office and duty of a Coroner 2 The Writ de Coronatore Eligendo 3 Who shall be Coroners and by whom they shal be chosen 4 Whether Coroners ought to be knights 5 Causes to remoue a Coroner 6 Where a Coroner shall haue fee and where not 7 What things Coroners shall inquire of 8 A Coroner shall execute his Office in his owne person A Câ—â—oner shall see the dead body A body buried taken vp againe 9 A Coroner must presently doe his office 10 A Coroner shall onely enquire of the death of a man A man slaine in an arme of the Sea A Coroner concealing or not apprehending a Felon 11 The force of a Coroners Record Which Coroners Record shall be preferred Abiuring before the Coroner Confession of breaking of Prison before the Coroner 12 Who ought to appeare vpon the Coroners Inquisition 13 The Coronour with the Sherife may take Appeales 14 Stopping vp of a place of daunger by the Coroners commaundement 15 Where the presence of all the Coroners is requisite and where but some one of them 16 The Coroner must record the euidence and bind the party to giue it 17 Inquiry of a man slaine within the Kings House and Verge 18 One man Coroner of the Kinges House and the Countie Who shall be Judge in Treason and Felony Fol. 253. 1 The King ought not to bee iudge in Treason or Felony What men of condition Iudges ought to be 2 None shall make Iudges but the King 3 Iudges vpon the arraignement of the Peeres of the Realme 4 Iudges of offences that are done in the Kings Pallace 5 Iudges of Conspiracies made to destroy the King or any Lord c. 6 Iudges within the Verge 7 Iudges of Treason committed out of the Realme 8 Iustices of Gaole deliuerie Iudges in Felony 9 Iudges of Nisi prius Iudges in Felony c. 10 Speciall commissioners Iudges at the arraignement of a Murderer 11 Iudges of piracie or offences done vpon the sea 12 Iustices of Peace Iudges in Felony 13 The Lord of a Mannour Iudge in Felony Infangtheefe Outfangtheefe 14 A Felon first executed and then iudged FINIS
euidence against him they vsed to bring forth the prisoner and to arraigne him of the principall fact and if hée pleaded or saide that hée was not guiltie thereunto then an Enquest of Clerkes was charged And if by the saide Enquest of Clerkes he was found not guilty of the same offence then he was set at libertie and if hée were found guiltie he was disgraded There be two sorts of Clerkes whereof the one is a Clerke conuict and the other is a Clerke attainted A Clerke conuict A Clerke conuict is hée who praieth his Clergie before Iudgement be giuen against him of death and hath his Clergie allowed vnto him such a Clerke before the Statute of 18. Elizab. might haue made his purgation sauing in certaine especiall cases As a common thiefe could not make his purgation Fi. Cor. 247 notwithstanding that hée were but a Clerke conuict for it is better for the common wealth to haue such an incorrigible person continually to remaine in prison than to goe at libertie to doe more hurt Fi. Cor. 417 And likewise a Monke that was a Clerke conuict should haue béene deliuered to his Abbot to haue remained in the Abbey continually without making his purgation Fi. Cor. 109 147. And also in an appeale if the Defendant had béene conuict by verdict and had enioyed his Clergie as a Clerke conuict he should not haue made his purgation for if hée had made his purgation then the Plaintife in the appeale should haue recouered his goodes without cause for that by the purgation it doth appeare that hée was not guiltie of the felonie A Clerke attainted Clerke attainted is he who praieth his Clergie after Iudgement of felonie giuen of him Such a Clerke could not haue made his purgation for that when he was condemned of felony by iudgement hée could not contrarie to that Iudgement be purged thereof that iudgement remaining in force and therefore there was none other remedy for him but to purchase the Kings pardon or else hée must haue remained in prison during his life And whether this Iudgement of death did follow either vpon Confession before the Coroner Clergie after Confession vpon abiuration or before the Iustices vpon his arraignement or vpon triall by verdict of twelue men if this iudgement were once giuen hée should not after make his purgation And though after his confession of the felony and before Iudgement giuen against him thereupon he doth pray his Clergie he shall haue it and might haue made his purgation for that the confession being before a secular Iudge who is not his Iudge is voide And for that cause the statute of Articuli Cleri cap. 16. doth ground St. 9. E. 2. 16 That an approuer Approuer shall haue the benefit of his Clergie and yet he hath confessed his offence before a secular Iudge And it is not to be interpreted that the benefit of this Statute is to be extended onely to saue the approuers life and not to set him at libertie by making his purgation for then hée should haue but part of the benefit of Clergie and not the whole which is contrary to the saide Statute of Articuli Cleri If an approuer had waiued his appeale holden him to his Clergie he should haue made his purgation Fi. Cor. 128 because the Temporall court doth dismisse him as a man in whom it hath no iurisdiction which waiuer of the appeale did not waiue the confession that hée had made before 27. H. 6. 7 13. E. 4. 3 Fi. Cor. 56 247 And though an approuer in some Cases should not haue made his purgation yet that was in such cases onely where he did not pray his Clergie vntill Iudgement was giuen against him of felonie If one that shall abiure the Realme for felony had come againe into the Realme without the Kings licence whereupon he was taken and brought to the Barre and that it was demaunded of him whie hée should not be put to death and he had demaunded his Clergie and that was allowed yet he should not haue béene deliuered to the Ordinarie but sent to prison againe Fi. Cor. 155 vntill hée had obtained the Kings pardon For Clergie would haue serued him for the felonie but not to excuse the contempt which he made by comming againe into the Realme without the Kings licence But it had béene otherwise if he had prayed his Clergie at the time when he fled to the Church By the entrie into the Roule of the Court which made mention of the prisoners deliuerie to the Ordinarie In whom rested the making of purgation it appeareth that the making or not making of purgation did rest much in the Temporall Court and not in the Ordinarie for if he were not to make his purgation then the entrie was Quod talis commissus est Ordinaria absque purgatione facienda and if hée were to make his purgation then the wordes Absque purgatione facienda were omitted and in all cases where the Temporall court had determined that purgation did not lie as in the case of Clerke attaint or such like if the Ordinarie had admitted the prisoner to haue made purgation and thereby set him at libertie Escape for suffering purgation he should haue bin charged with an escape for the authority whereby he was committed to prison was temporall and he receiued him from the temporall court or otherwise the Ordinary could not haue retained him in prison And therefore the temporall court had somewhat to doe with setting him at libertie out of prison If one had béene conuicted of diuerse felonies and had béene admitted to his Clergie in that case hée ought to haue made purgation for them all But the force of the foresaide Lawes Fi. Cor. 232 touching committing of clerkes to the Ordinary and making of purgation is alterd by the before mentioned statute of Anno 18. Eliz. St. 18. El. 6 whereby it was enacted That euerie person and persons which shall be admitted and allowed to haue the benefit or priuiledge of his or their Clergie shall not thereupon be deliuered to the Ordinarie as hath béene accustomed but after such Clergie allowed and burning in the hand St. 4. H. 7. 13 according to the statute in that behalfe prouided shall forthwith be enlarged deliuered out of prison by the Iustices before whom such Clergie shall be graunted that cause notwithstanding Clergie allowed without deliuery to the Ordinarie Prouided neuerthelesse that the Iustices before whom any such allowance of Clergie shal be had shall and may for the further correction of such persons to whom Clergie shall be allowed detaine and kéepe them in prison for such conuenient time as the same Iustices in their discretions shall thinke conuenient so as the same doe not excéede one yeeres imprisonment Any lawe or vsage heretofore had to the contrary in any wise notwithstanding ⧠The Kings Pardon THe Kings Pardon is a barre to an Indictment