is not supposed the same and one but committed at divers dives 27. Ass Pl. 10. And this for Accessaries after the felony But when felony is done by force of Commanding and procurement of another he that shall be arraigned as Accessary may plead that he was acquit c. though it were as principal and the offences were at divers daies for vulnus praeâ—eptum factum sunt quasi unum factum Note in an Indictment or Appeal of death if it be found that he killed him in his own defence he is acquited of the felony for ever 3. Auterfoitz convict de mesine le felony devant Iudgement If a Man commit murder and be indicted convict or acquitted of Man-slaughter he shall never answer to any other Indictment of the same death for all is one and the same felony for the same death Wetberel brought an Appeal against Darby of murder the Defendant pleaded on culpable and was found guilty of Man-slaughter and had his Clergy afterwards he was indicted of murder and upon it arraigned at the Kings Suit and he pleaded the former conviction in the Appeal at the Parties Suite and it was adjudged a good Barre ad thereupon discharged for this was a good Barre at the Common Law and restrained by no Statute and the reason is because the Life of Man shall not be put twice in Jeopardy for the same offence 4. Auterfoitz convict d'un auter felony Before the Statutes of Qu. Eliz. c. 4. and 18. Eliz. c. 6. If a Man had committed divers felonies if he had been indicted of the last and had the benefit of his Clergy he could not have been impeached for any of the former felonies albeit for the same he could not have had his Clergy by the Act it is provided that notwithstanding the allowance of such Clergy he may be impeached for any former offence for which he could not have had his Clergy 5 and last Auterfoitz attaint de mesine le offence Anterfoitz attaint of the same felony was a good Plea as well in an Indictment as in an Appeal at the Common Law But by the Stat. of 3. H. 7. c. 1. in an Appeal of death at the Suit of the Party auterfoitz attaint de mesme le mort is no Plea at this day But in case of an Indictment of death at the Suit of the King auterfoitz attaint de mesme le mort in Appeal is a good Plea Auterfottz attaint bd murder is a good Plea to an Indictment c. of Petit treason of the same death for in effect it hath the same Judgment and the self same forfeiture So likewise a Man may be attainted of Man-slaughter it is a good barre to an Indictment of murder of the same death and eâ— converso Thus much of matters Judicial in criminal offences I go on now according to our first proposed Method to the Acts Judicial 8. Of Judicial Acts relating to publik Crimes Touching these Judicial Acts there are worthy of consideration these particulars The manner how Causes criminal are brought to Tryal 2. The Judgment or Sentence upon that Tryal or Arraignment 3. The Execution of that Sentence 4. The means whereby the Judgment or Execution may be escaped or delayed No Man is said to be arraigned but meerly at the Suit of the King upon an Indictment found against him or other Record wherewith he is charged And there the Arraignment of the Prisoner is to take order that he appear and for the certainty of the Person to hold up his hand and to plead a sufficient plea to the Indictment or other Record whereupon they which follow for the King may orderly proceed If the party accused of Treason or Felony c. do at his Arraignment before the Judge deny the offence or as we say plead Not-guilty then shall he be tryed by a Jury of 12 Men dwelling nigh to the Vill where th offence was comitted such Men as to the Party accused be nothing allyed to certify the Judge upon the truth of the fact which at their appearance the Party arraigned may challenge peremptorily upon his own dislike without shewing any cause in favorem vitae the number of twenty in murder and other Felony And in case of High treason Petit treason and Misprision of treason he may challenge to the number of 35 And if he challenge peremptorily above 35 in case of Treason or Petit treason he forfeiteth his goods and Judgment of pain fort and dure shall be given against him as one that refuseth the Tryal of Law by challenging 3 full Juries Otherwise in case of Felony for no Law giveth forfeiture for challenging above twenty but the Court is to over-rule the Challenge But note that in case of Treason or Felony the Party arraigned may challenge for just cause as many as he can 2. But if the Party upon his Arraignment in case of Felony refuse to answer according to Law or say nothing he shall not be Judged to be hanged but for his contempt he shall undergo pain fort and dâ—re which makes no Attainder for the felony nor forfeiture of his Lands nor corruption of Blood Otherwise in case of High treason for if the Party refuse to answer according to Law or say nothing he shall have such Judgment by Attainder as if he had been convicted by Verdict or Confession 3. If the Party-arraigned be found Guilty by Verdict or Confession then he is said to be convicted which is before he hath Judgement or Sentence and thereupon he doth forfeit his goods and Chattels But note that the begging of the goods or Estate of the Delinquent indicted of any Treason Felony or other offence before he be convicted and attainted is utterly unlawfull because before Conviction and Attainder nothing is forfeited to the King nor granted by him And besides it either makes the Prosecution more violent and undue then quiet and equal proceeding of Law and Justice would permit or else by under hand Commission and agreement hinder the due course of Justice for examplary punishment of the offender Note further that before Indictment the goods or other things of any criminal cannot be searched Inventoried or in any sort seised nor after Indictment seised and removed or taken away before Conviction or Attainder Thus much of the manner touching the Arraignment of a Delinquent Assoon as Judgment or Sentence is pronounced by the Judge the Party arraigned is said to be attainted mort en Ley But though the Delinquent by the Attainder be a dead Person in Law yet maugre the Attainder his Body may at the Suit of a Subject be taken in execution upon a Judgment or Stat. c. And he may be executed for Treason or felony notwithstanding such Execution had against him As to Attainder take these Queries together with Solutions Qu. 1. Whether there be a diversity betwixt an Attainder
Wife for that she intended Murther thereby so if the Wife poysoneth an Apple or other thing and delivereth it to B. knowing of the poyson to give to C. and B. giveth it to the Husband without the assent of the Wife who eateth thereof in the Wives absence and he dyeth thereof this is petit Treason in the Wife But if the Wife poysoneth a thing to the intent to poyson her Husband therewith the Husband eateth of it and becometh very sick but recovereth after a stranger eateth thereof and dyeth thereof this is onely murther in the Wife If the Wife and Servant conspire the Husbands death he is killed by the Servant in the absence of the Wife this is petit Treason in them both and the Wife shall be burnt But if it had been a stranger it had been murder in him onely and petit Treason in the Wife Baron and Feme out of affection were resolved to go out of the World together The Wife buyes poyson both take it the Husband dyed It is a quaere in the Book whether this were murther in the Wife A Woman compasseth with her Avowterer the death of her Husband they assailed him Riding on the Highway beating wounding leaving him for dead and then they fled The Husband got up levied Hue and cry came before the Justices they sent after the Offenders which were gotten arraigned and the matter found by the Verdict the Adulterer was hanged the Woman burned to death the Husband living This Judgement was given when voluntas reputabatur pro facto Sic Metellus Celer Sergium damnavit non facturm sed animus in questionem deductus est Plusque voluisse peccare nocuit quam non peccasse profuit But at this day in case of Felony Non debet obesse Conatus ubi injuria nullum habet effectum 3. When a Secular or Religious man slayeth his Prelate Ordinary or Superiour to whom he oweth Faith and Obedience Note that unto the Bishop of every Diocess the Clerks within their Diocess do owe Faith and Obedience which is called Canonical Obedience Note likewise that whatsoever Act will prove murder between strangers the same will make petit Treason from the Servant to his Master from the Wife to the Husband from the Clerk to his Prelate or Ordinary Mutatis Mutandis But whether from a Child to the Father or Mother c. may be a Quaere for some hold that it is petit Treason and others that it is not If the Child maliciously killeth the Father or Mother this sayes one is petit Treason although the Father or Mother at the same time gave neither meat drink or Apparel nor wages to such Child in respect of the duty of nature violated vide 21. E. 3. 17 Book Treason 6. A Bastard killeth his Mother this seemeth petit Treason for the Mother is certainly known The Son or Daughter in Law killeth the Father or Mother in Law with whom they dwell and do service and have meat and drink it is petit Treason although such Child take no wages but the Indictment shall be by the name of Servant But my L. Coke says thus If the Child commit Parricide in killing his Father and Mother of which Solon interrogatus cur nullus parricidio supplicium indixisset Se id neminem facturum putasse respondit The Law-makers never imagined any child would do this case is out of the Stat. of 25. E. 3 c. 2. unless the child served the Father or Mother for wages or meat drink or apparel for that it is none of those three kinds specified in the Law aforesaid And yet sayes he the offence is far more heinous and impious in a child than in a servant for peccata contra naturam sunt gravissima but the Judges are restrained by the said Act to interpret it a simili or a Minore ad Majus The hainousness of this Parricide appears by that punishment which is ordained in the civil Law for those that are guilty of the Crime Paena parricidij more Majorum haec instituta est ut parricida virgis sanguineis verberatus deinde culleo insuatut cum Cane gallo gallinaceo vipera simia deinde in mare profundum Culleus jactetur D. 48. 9 9. Thus much of petit Treason Murder cometh of the Saxon word Mordrue or Mordren and Mordridus is the Murderer even untill this day amongst them in Saxony from whence we have most of our words or it may be derived of Mort and Dire as Mors Dira a Cruel or Horrible death This Murther in our Law is Two-fold either of himself or of another 1. Of Murdering a mans self called Felo de se Felo de se sayes Coke is a man or woman which being Compos mentis of sound memory and of the Age of Discretion killeth himself which being lawfully found by the Oath of Twelve men all the Goods and Chattels of the party so offending are forfeited And the Reason why Felo de se doth forfeit all his Goods and Chattels is because it is an offence against the King who by that perpetration is deprived of a Subject And indeed no man by the Law of nature hath such power over his own life as to take it away or to oblige it by any Contract or Bargain vide Grot. Lib. 2. c. 21. nu 11. Lib. 3. c. 11. nu 18. Having shewed the Description of Felo de se and the Reason of forfeiting his Chattels I propose these Queries with their Resolutions Whether a person that is non compos mentis giving himself a mortal wound and after recovering his memory before death ensues be Felo de se If one during the time that he is non compos mentis giveth himself a mortal wound whereof he when he hath recovered his memory dyeth he is not Felo de se And the Reason is because the stroke which was the cause of his death was given when he was not Compos mentis Et actus non facit Reum nisi meus sit rea And this is agreeable to the civil Law Maleficia voluntas propositum distinguit voluntas propositum maleficium delinquentis distinguit Delictam cessat ubi delinquendi animus non est Whether a man can be said to be Felo de se upon an involuntary Act A man may be so Resp As if A. give B. such a stroke as he felleth him to the ground B. draweth his knife and holds it up for his own defence A. in hast meaning to fall upon B. to kill him falleth upon the knife of B. whereby he is wounded to death he is Felo de se For B. did nothing but that which was lawful in his own defence Et vim vi defendere sayes the civil Law omnes leges omnisque jure permittunt D. 9. 2 45 4. Whether the goods of Felo de se be forfeited before it be found of Record that he is Felo de se
ils happen a variance per que illuy ferist en le gule puis en le Teste issint en divers Lieux del corps tanque qu'il fuit mort donques il trahist le corps en le corne les Justices pur sonrendr ' pur ceo que il narroit le matter playnem ent respite le Judgment plusours Justic disont que il fuit deigne mort c. And the Reason is quia malitia supplet etatem with this our Rule do concur the Roman Laws Impunitas delicti propter etatem non datur si modo in ea quis sit in quam crimen quod intenditur cadere potest i. e. si modo sit proximus pubertati ea sentiat in quibus deliquit Malitia minor is etatem justam esse representat ac supplet vel sic Malitioe non succurritur Whether Malice prepensed must be continuing till the mort al wound given Albeit there had been malice between two and after they are pacified and made friends and after this upon a new occasion fall out and the one killeth the other this is Homicide but no murder because the former malice continued not So if A. command B. to kill C. and before the Act be done A. repenteth and countermandeth his Commandment and charge B. not to do it if B. after killeth him A. is not accessory to it for the malicious mind of the Accessory ought to continue to do ill untill the Act done Whether Murder can be committed of a child in utero matris If a Woman be quick with Child and by a Potion or otherwise killeth it in her womb or if a man beat her whereby the Child dyeth in her Body and she is delivered of a dead Child this is a great misprision and no murder But if the Child be born alive and dyeth of the Potion Battery or other cause this is murder for in Law it is accounted a reasonable Creature in rerum natura when it is born alive The Law holden in Bracton's time was si aliquis qui mulierem pregnantem percusserit vel ei venenum dederit per quod fecerit abortivus si puerperium jam formatum fuerit maxime si fuerit animatum facit homicidium And let us now see what the civil Law saith de partu abacto si mulierem visceribus suis vim intulisse quo partum abigeret constiterit eam in exilium preses Provinciae exiget Cicero in oratione pro Cluentio Avito scripsit Milesiam quandam mulierem cum esset in Asia guod ab hberedibus secundis accepta pecunia partum sibi medicamentis ipsa abegisset rei Capitalis essedamnatam Whether it be murder in a Mother to conceal the death of her Bastard Child It is Enacted That if any Woman be delivered of any Issue Male or Female which being born alive should by the Lawes be a Bastard and she endeavour privately either by drowning or secret burying thereof as that it may not come to light whether it were born alive or not but be concealed In every such case the said Mother so offending shall suffer death as in case of murder except such Mother can make proof by one witness at least that the Child whose death was by her so intended to be concealed was born dead Whether he that stabbeth another to death shall suffer as in case of wilful murder It is Enacted That every person which shall stab or thrust any person that hath not then any Weapon drawn or hath not then first stricken the party which shall be so stabbed or thrust so as the person stabbed or thrust shall thereof dye within the space of six months although it cannot be proved that the same was done of malice forethought yet the party so offending and being thereof convicted by the Verdict of Twelve men Consession or otherwise according to the Laws of this Realm shall be excluded from the benefit of his Clergie and suffer death as in case of wilful murder Whether a Murder committed out of the Realm can be tryed by the Common Law If two of the Kings Subjects go over into a Forreign Countrey and fight there and the one kill the other this Murder being done out of the Realm cannot be for want of Tryal heard and determined by the common Law of England but it may be heard and determined before the Constable and Marshal whose Sentence is upon the testimony of witnesses and combat and accordingly where a Subject of the King was slain in Scotland by others of the Kings Subjects the Wife of the party slain had her appeal therefore before the Constable and Marshal and so it was resolved in the 35th year of Queen Elizabeth in the case of Sir Francis Drake who strook off the head of Dowtie in partibus transmarinis that his Brother and Heir might have an appeal So if a man be mortally wounded in France and dyeth thereof in England it is said that an Appeal doth lye upon the statutes of 12 R. 2. c. 2. and 1 H. 4. c. 14. for it is not punishable by the common Law because the stroak was given there where no Visne can come and therefore the same shall be heard and determined before the Constable and Marshal Thus much of Murder proceeding from Malice prepensed and expressed as for Malice implyed it hapneth in three cases 1 In respect of the manner of the deed as if one killeth another without any provocation of the part of him that is slain the Law implyeth malice if one make a wry or distorted mouth or the like countenance upon another and the other immediatly pursues and kills him it is murder for it shall be presumed to bemalice precedent and that such a slight provocation is not a sufficient ground or pretence for a Quarrel One Halloway was Indicted and Arraigned at Newgate for Murthering one Payne the Indictment was that he Ex malitia proecogitata tyed the said Payne at the Horses tayle and strook him two stroaks with a cudgel being tyed to the said Horse whereupon the Horse ran away with him and drew him upon the ground three Furlongs and thereby brake his shoulder whereof he instantly dyed and murdered him Upon this Indictment he being arraigned pleaded nor guilty and thereupon a special Verdict found that the Earl of Denbigh was possessed of a Park called Austerly Park and that the said Halloway was Wood-ward of his Woods in the said Park and that the said Payne with others unknown entred the said Park to cut Wood there and that the said Payne climbed up a Tree and with an hatcket cut down some boughs thereof and that the said Halloway came riding into the Park and seeing the said Payne on the Tree commanded him to descend and he descending from thence the said Halloway stroke him two blows upon the back with
his cudgel and the said Payne having a Rope tyed about his middle and one end of the Rope hanging down the said Halloway tyed the end of that Rope to the Horses tayle and struck the said Payne two blows upon his back whereupon the said Payne being tyed to the Horses tayle and the Horse running away with him drew him upon the ground three Furlongs and by this meanes brake his shoulder whereof he instantly dyed and the said Halloway cast him over the pale into certain bushes and whether upon all this matter found the said Halloway be guilty of the Murder prout they pray the discretion of the Court and if the court shall adjudg him guilty of Murder they find him guilty of Murder if otherwise they find him guilty of Man-slaughter and this special Verdict by Certiorari was removed into the Kings Bench and depended three Termes and the opinion of all the Judges and Barons was demanded and they all besides Hutton who doubted thereof held clearly that it was Murder for when the Boy who was cutting on the Tree came down from thence upon his command and made no resistance and he then struck him two blowes and tyed him to the Horses tayle and struck him again whereupon the Horse ran away and he by that meanes slain the Law implies malice and it shall be said in Law to be malice prepensed he doing it to one who made no resistance he was adjudged to be hanged and was hanged accordingly If a man give poyson to another person of which poyson the party dyeth within the Year this implyeth malice and is adjudged wilful Murder of Malice prepensed Note that a man may be poysoned Four manner of wayes 1 Gustu by Taste that is by Eating or Drinking being infused into his meat or drink 2. Aubâ—litu by taking in breath as by a poysonous persume in a Chamber or other Room 3 Contactu by touching 4. and lastly Suppostu as by a Glister or the like Thus much of malice implyed in respect of the manner of the Deed. 2 Malice implyed doth happen in respect of the person slain And therefore it hath been resolved that if any Sheriff under-Sheriff Sergeant or Officer who hath execution of Process be slain in doing his Duty it is murder in him who kills him although there were not any former malice betwixt them for the Executing of Process is the life of the Law and therefore he who kills such an Officer shall loose his life for that Offence is Contra potestatem Regis Legis and therefore in such case there needs not any inquiry of malice The same Law is if any Justice of Peace Constable or any other Officer or any who comes with them in their Assistance for the preservation of the peace be slain in executing their Office it is murder through malice implyed so if a Watch-man be killed in staying Night-walkers it is murder One Thomas Pew was Arraigned for the murder of one Gardiner and upon evidence it appears that the said Gardiner was a Bayliff Sworn and known and Under-Bayliff to the Dean of Westminster and he having the Sheriffs Warrant to Arrest the said Thomas Pew upon a Capias out of the common Bench and seeing him in Shyre-lane within the liberty of Westminster the said Pew seeing him drew his Sword and the said Gardiner approaching to lay hold upon him not using any words of Arrest as was proved Thomas Pew said as it was proved upon the Examination of two Witnesses before the Coroner stand off come not near me I know you well enough come at your peril and the Bayliff taking hold of him he thrust him with his Sword that he dyed immediatly It was held by all the Court that it was murder for he coming as an Officer to Arrest and not offering any violence or provocation although he used not words I Arrest you or shewed him any Warrant because peradventure he had not time nor was demanded the cause the Law presumes it to be malice and murder in him that so kills one being an Officer and coming to execute process Resolved that if there be Error in Awarding of process or in the mistake of one process for another and an Officer be slain in the Execution thereof the offendor shall not have the Advantage of such Error no more then a Sheriff who suffers a prisoner to escape shall take advantage of any Error thereby but the Resisting of an Officer when he comes to make an Arrest in the Kings name is murder But a man shall take advantage against an Officer where he is slain in doing an unlawful act so likewise upon a variance in an essential part of the parties Name As to the former take this Resolution One Cook was Indicted for the Murder of Marshal upon his Arraignment pleading not guilty it was found that the said Marshal was a Bayliff to the Sheriff of and had several Warrants upon several Capias ad satisfac against the said Cook and his Father directed unto him and other Bayliffs and that they by vertue or colour thereof entred into the said Cookes stable and out-house and hid themselves all Night and at 8 of the clock next morning coming to Cooks dwelling House called to open his doors and suffer them to enter because they had such Warrants upon such Writs at the Suit of such persons to Arrest him and willed him to obey them But the said Cook commanded them to depart telling them they should not enter and thereupon they brake the Window and afterward came unto the door of the said House and offered to force that open and brake one of the Hinges thereof whereupon the said Cook discharged his Musquet at the said Marshal and strook him of which stroke the day following he Dyed and whether upon all this matter he be guilty of Murder or Manslaughter was the doubt After Argument for Cook at the Bar all the Justices delivered their opinions that it was not Murder but Man-slaughter only for although he killed a Bayliff yet he killed him not in duly executing process for it is not Murder unless there be Malitia praecgitata or Malitia implicita as to Murder one suddenly or in Resistance of an Officer doing his Office by serving the process of Law wherein he is assisted Cum potestate Regis Legis But here this Bayliff was slain in doing an unlawful Act in seeking to break open the House to execute process for a Subject which he ought not to do by Law although he might have Entred if the door had been open and arrested the party and it had been lawful yet he ought not to break open the House for that it is not Warranted by Law and especially lying there in the night and in the morning breaking the Window and offering to force the door which is not sufferable for under colour thereof one may enter who hath not any such Authority and every one is to
give back he should be in danger of his life he may in this Case defend himself and if in that Defence he killeth A. it is Se Defedendo because it is not done Felleo animo and consequently Justifiable with our Law dos Concur the Law Imperial Jure hoc evenit ut quod quisque ob tutelam Corporis sui fecerit jure secisse existimetnr Non injuria fecit qui se tueri voluit cum alias non posset 2. If a Thief offer to Rob or Murder B. either abroad or in his House and thereupon on Assault him and B. defend himself without any giving back and in his Defence killeth the Thief this is no Felony for a man shall never give way to a Thief c. neither shall he Forfeit any thing and so it is declared by the statute of 24 H. 8. c. 5. One Cooper being Indicted in the County of Surrey of the murder of one W. L. in Southwark he pleaded Not Guilty and upon his Arraignment it appeared that the said Cooper being a prisoner in the Kings Bench and lying in the House of one Anne Carrick who kept a Tavern within the Rules the said W. L. at one of the clock in the Night assaulted the said House and offered to break the staple thereof and swore he would enter the House and slit the Nose of the said Anne Carrick because she was a Bawd and kept a Bawdy-House and the said Cooper disswading him from these Courses and reprehending him he swore that if he could enter he would cut the said Coopers Throat and he brake a window in the lower Room of the House and thrust his Rapier in at the window against the said Cooper who in defence of the House and himself thrust the said W. L. into the eye of which stroak he dyed The Question was whether this were within the Statute of 24 H. 8. and the opinion of the Court was that if it were true that he brake the House with an intent to commit Burglary or to kill any therein and a party within the House although he be not the Master but a Lodger or Sojourner therein kill him who made the Assault and intended mischief to any in it that it is not Felony but excusable by the Statute of 24 H. 8. which was made in the affirmance of the Common Law wherefore the Jury were appointed to consider of the circumstances of the Fact and they being a substantial Jury of Surrey found the said Cooper not Guilty upon the Indictment whereupon he was discharged 3. If a prisoner assault the Goaler the Goaler is not by Law inforced to give back but if in defence of himself he kill the prisoner this is no Felony 4. If any Officer or Minister of Justice that hath lawful Warrant and the party assault the Officer or Minister of Justice he is not bound by Law to give back but to carry him away and if in execution of his Office he cannot otherwise avoid it but in striving kill him it is no Felony Note if men tilt or turney in the presence of the King or if two Masters of Defence playing their prizes kill one another this is no Felony 11 H. 7. 23. a. Hobarts Reports Weaver v. Ward f. 134. And the reason given is for that in Friendly manner they contend to try their strength and to be able to do the King service in that kind as occasion should be offered Hitherto of Homicides that be voluntary and no Felony whereof some be in respect of giving back inevitably in defence of himself upon an assault of Revenge and some without any giving back c. I now proceed to that Homicide that is not Felony neither fore-thought nor voluntary and this we call Man-slaughter by misadventure or Chance-medley 3. Of Homicide by misadventure Chance medley or per Infortunium is when one is slain casually and by misadventure without the will of him that doth the Act whereupon death ensueth Or Homicide by misadventure is when a man without any evil intent doth a lawful thing or that is not prohibited by Law and another is slain or cometh to his death thereby as if one shoot at Butts or at pricks and kill a man by swarving his hands this is no felony The same Law is of tiling an House and a tile fall and killeth one So if one trained Souldier hurteth another in skirmish of which hurt he dies this being by misadventure is no felony But in any of these Cases before put if a man be hurt or maimed only an Action of Trespass lieth against him that was the cause of the hurt or maime though it be done against the parties mind and will because in Civil Trespasses and injuries that are of an inferior nature the Law doth rather consider the damage of the party wronged then the mind of him that was the wrong doer Vide Hobarts Reports Weaver against Ward f. 134. But to return from whence I have made a digression It is to be considered whether he that commiteth this Homicide by misadventure in doing a lawful Act and likewise without an evil intent for if the Act be unlawful or done with an evil purpose it will prove murther 1. Touching an unlawful Act If a man shoot at a Cock or Hen or any fowl of another man and the arrow by mischance kill a man this is said to be murther for the Act was unlawful So if a man doth beat another and with intent not to kill him yet if the party be killed by this battery it is felony So if two are fighting together and a third cometh to part them and is killed by one of them two without any malice fore-thought yet this is murther in him and not Homicide by Chancemedley or misadventure because that they two that fought together were in doing of an unlawful Act. And if they were met with prepensed malice the one intending to kill the other then it is murther in them both 2. Touching an evil Intent If a man knowing that many people come in the street from a Sermon throw a stone over a wall intending only to fear them or to give them a light hurt and thereupon one is killed this is murther for he had an evil intent though that intent extended not to death and though he knew not the party slain Note though the killing of a man by misadventure or by chance be not felony Quia in maleficiis voluntas spectatur non exitus D. 48. 8. 14. yet the party guilty shall forfeit therefore all his Goods and Chattels to the intent that men should be cautious as they tend not to the effusion of mans blood I shall conclude this learning touching Homicides with somewhat appertaining to Physicians and Chirurgians If one that is of the mystery of a Physician take a man in Cure and giveth him such Physick as within 3 dayes he dies thereof without any felonious intent and
All these fourscore and one were indicted of this felony and committed to the Tower of London c. and this was the occasion of the new building of both parts of the Exchequer which were before of antient building and weak The punishment of this crime in the Civil Law is this Peculatus pâ—ena aquae ignis interdictionem in quam hodie successit deportatio continet Porro qui in eum statum deducitur sicut omnia pristina jura ita bona amittit 4. Bribery Bribery sayes Coke is a great Misprision when any man in Judicial place takes any Fee or Pension Robe or Livery Gift Reward or Brocage of any person that hath to do before him any way for doing his Office or by colour of his Office but of the King only unless it be of meat and drink and that of small value upon divers and grevious punishments Having given you a description of Bribery I propose these Queries with Resolutions upon them and then shew what the Civil Law saith touching Bribery and Reward Whether Bribery can be committed although there be no suit depending in fota contentioso Bribery may be committed not only when a Suit dependeth in foro contentioso but also when any in Judicial place doth any thing virtute or colore Officii though there be no Suit at all For example if the Lord Treasurer for any gift or brocage shall make any Customer Controller or any Officer or Minister of the King this is Bribery for he ought to take nothing in that Case by the Statutes of 12. R. 2. c 2. 5. E. 6. 5. 6. Co. Litt. f. 234. a. Co. 3. Inst f. 154. Hobarts Reports Roy v. Bishop of Norwich f. 75. but that he make all such Officers and Ministers of the best and most lawfull Men and sufficient for their estimation and knowledg These Laws aforementioned made contra crimen Ambitus are worthy to be known by all but more worthy to be put in execution for they prevent Bribery and extortion They that buy will sell Whether this offence of Bribery can be perpetrated by one that hath a Judicial place in the Ecclesiastical Court The Statute of 5 E. 6. c. 16. doth extend as well to Ecclesiastical Office as temporal which concern the Administration and execution of Justice and therefore any Chief Judicial Officer Ecclesiastical taking any thing virtute or colore Officii for any Office Ministerial or Judicial is guilty of Bribery Touching Gifts and Bribery take notice what the Civil Law sayes Non in totum Xeniis abstinere debebit Proconsul sed modum adjicere ut neque morose in totum abstineat neque avare modum Xeniorum excedat quam rem Divus Severus Imperator Antonius clegantissime epistola sunt moderati cujus epistolae verba haec sunt Quantum ad Xenia pertinet Audi quid sentimus Vetus preverbium est neque omnia neque quovis tempore neque ab omnibus Nam valde inhumanum est a nemine accipere sed passim vilissimum est omnia avarissimum Imo non est inhumanum Nam munera exâ—oecant oculos sapientum ac pervertunt verba Justorum verum hic agitur saies Gothofredus de muneribus quae dantur Proconsuli ut hospiti non ut Judici Et hic aperte Xenia ut appellat quoque hic Jurisconsultus Xeniola distinguntur a dono munere seu muâ—terum qualitate Aliud ii est munus aliud Xenion Xeniolon Lege Julia repetundarum tenetur qui cum aliquam potestatem haberet pecuniam ob judicandum decernendumque acceperit Qui munus publice mandatum accept a pecunia rumperunt crimine repetundarum postulantur 5. Extortion Extortion is a Misprision by wresting or unlawfully taking by any Officer by Colour of his Office any money or valuable thing of or from any Man either that is not due or more then is or before it be due Quod non est debitum vel quod est ultra debitum vel ante tempus quod est debitum Of this crime it is said that in no other than Robbery and another saith that it is more odious than Robbery for Robbery is apparent and hath a face of a crime but extortion puts on the vizor of vertue for expedition of Justice and the like and it is ever accompany'd with that grevious sin of perjury we call it in Latin Crimen expilationis seu concussionis But the Quaere may be whether Extortion and Exaction are all one It is answered They are not for there is this difference taken between Exaction and Extortion Extortion is where an Officer demandeth and wresteth a greater summe or reward than his just Fee And Exaction is where an Officer or other Man demandeth and wresteth a Fee or reward where no Fee or reward is due at all 6. Striking in the Kings Courts where he resides personally or by Representation If any Man in Westminster Hall or in any other Place sitting the Courts of Chancery the Kings Bench the Common Bench the Exchequer or before Justices of Assize or Justices of Oyer Terminer shall draw a weapon upon a Judge or Justice though he strike not this is a great Misprision for the which he shall loss his right hand and forfeit his Lands and goods and his Body to perpetual imprisonment The reason is because it tendeth ad impedimentum Legis terrae So it is if in Westminster Hall or any other Place sitting the said Courts there or before Justices of Assize or Oyer and Terminer and within the view of the same a Man doth strike a Jury or any other with weapon hand shoulder elbow or foot he shall have the like punishment but in that case if he make an assault and strike not the offender shall not have the like punishment One Peter Caery was indicted for drawing his sword in Aula Westm sedentibus Curiis and in disturbing the Sheriff in making an Arrest upon one T. by force of a Bill of Middlesex and being arraigned and found guilty had Judgment of perpetual Imprisonment and to pay one hundred pounds to the Queen And note that upon the evidence it appeared to be upon the stairs ascending the Court of Wards and so out of the view of the Courts But Popham said although it were out of the view of the Courts yet if the Indictment had been as it ought to have been viz. coram Domina Regina the Judgment should have been that his right hand should have been cut off and that he should forfeit all his Lands and Chattels and have perpetual Imprisonment St William Waller was indicted for that he in the Palace of Westminster neer the Great Hall the Justices in the Kings Bench Chancery and Common Bench judicially sitting to hear Causes made an assault and affray upon Sr Thomas Reignolds and beat him in disturbance of the Law and
fortia nulla Et ubi non est principalis non potest esse accessorius As if the principal and accessory be arraigned and both found guilty and the principal has his book before Judgment It was adjudged the accessory shall be discharged and also if the principal confess and hath his book the accessory shall be discharged because Judgment was new given against the principall So where the principal before attainder is pardoned the accessory is discharged It is resolved that where the principal was found guilty of Man-slaughter and not guilty of murder and had his Clergy the accessory shall be discharged for till Judgment it doth not appear judicially that there was a principal But if the principal prayes his Clergy after he hath had Judgment or if he be pardoned yet the accessory shall be arraigned for it appears judicially that there was a principal By what has been said you see that the accessory ought not to be condemned but where the principal is attainted and not where he is convicted only and had his Clergy which Clergy is a Refuge provided by the Common Law in favour of Learning to save the life of an offender Literate in certain cases I say in certain cases because the benefit of the Clergy is taken away in many particulars as 1. For stealing of horses 1. E. 6. c. 33. 2. For robbing dwelling houses c. in or neer the high way 5. E. 6. c. 9. 3. For burning of houses or Burns 5. Ph. M. c. 4. For stealing of 5. Shillings in any dwelling house or any place adjoyning 39. Eliz. chap. 15. 5. For Burglary and Rape 18. Eliz. c. 17. 6. For stealing 12 pence or more without the knowledg of the Person c. 8. Eliz. c. 4. 7. For killing one that hath no weapon drawn 1. Jac. c. 9. c. But to conclude this learning of Clergy It is a Rule whensoever felony is made by any Statute and the benefit of Clergy is not taken away the offender shall have his Clergy The accessory ought not to be put to answer before the principal be attainted for Juri non est consonum quod aliquis accessorius in Curia Regis convincatur antequani aliquis de facto fuerit attinctus And consequentially by the Reversal and acquittal of the principal the dependant Judgment against the accessory cannot stand And this is agreable to the Rules of the Imperial Laws Cum principalis causa non consistat plerumque ne ea quidem quoe sequuntur locum habent Quando res aliqua sit accessoria principali vitiato principali corruit accessorium Thus much of the Rules and now for the Quaeries with Solutions A Man being made accessorie to two whether he can be found accessory to one If an Appeal be brought against two as principalls and against another as accessory to them in this case both of them must be attainted before the accessory be outlawed and if one of the principals be found not guilty the accessory is discharged for the Plaintiff made him accessory to two and therefore he cannot be found accessory to one Qu. 2. Whether the Writing of Letters c. in Favour of a Felon can make him an Accessory Resp If a man write Letters for a Felons deliverance or in favour of him or the like he is no Accessory for that he received not the Felon Qu. 2. Whether the Instructing of a Felon to Read will make the Person Instructing an Accessory Res A Vicar Instructing an Approver which could not Read whilst he was in prison to Read whereby he escaped was adjudged not Accessory to the Felony Qu. 3. Whether the perswading Witnesses not to Appear to give Evidence against a Felon will make one an Accessory to the Felony Res Catlin and Brown Justices of Assize in the County of Suffolk put this Case to all the Judges A man committed Felony in the County of Suffolk for the which he was committed to the Goal and R. an Attorney advised the Friends of the Felon to perswade the Witnesses not to Appear to give Evidence against him which was done accordingly And it was Resolved that neither the Friends nor the Attorney were Accessories to the Felony but it was a great Contempt and Misprision for which they might be fined and imprisoned Hitherto of the Parties in Judgements Criminal The Assistants in Judgements Criminal are of two sorts the one appertaining to the King as the Kings Serjeants his Attorney and Solicitor General and the Clerk of the Crown the other to the party Arraigned assigned to him upon his prayer by the Court The Duty of the Kings Councel learned in the Laws is to manage the Evidence against the prisoner at his Tryal and the Function of the Clerk of the Crown is to frame read and record all Indictments against Traytors Felons and other Offenders Arraigned in the Kings Bench upon any publique Crime Note by the Statute of 2 H 4. this Clerk of the Crown if fourscore or a hundred men be Indicted of Felony or Trespass of one Felony or one Trespass and they plead to an Issue as not Guilty the said Clerk ought not to take for the Venire Facias nor for the Entring of the Plea but two shillings only and not two shillings for every one which Act is made in affirmance of the Common Law So if one man be Indicted of two several Felonies or Trespasses and is acquitted he shall pay but for one Deliverance As to the Councel belonging to the Party Arraigned the Law of England is thus Where any person is Indicted of Treason or Felony and pleadeth to the Treason or Felony Not Guilty which goeth to the Fact best known to the party it is holden that the party in that Case shall not have an Advocate assigned to defend his Cause or alledge any matter for him but if the party Arraigned hath any matter of Law to plead he shall have Councel assigned by the Court to plead the same as to plead a general Pardon or a particular Pardon or to plead in Arrest of Judgement if the Verdict be found against him that the Tryal came not out of the right place as it fell out in Arundels Case convicted by a Jury of wilful Murder or any other matter of Law Sir Humphrey Stafford had an Advocate assigned him concerning the priviledge of Sanctuary from whence he was drawn by Force bnt for the matter of High Treason he pleaded his own Cause But though the party Arraigned upon an Indictment of Treason or Felony and pleading to the Treason or Felony Not Guilty which goeth to the Fact cannot have Councel to give in Evidence or alledg any matter for him yet in Appeals which are the Suites of the Subject Councel is allowed and the Reason why Councel is not prohibited in an Appeal as it is in an Indictment may be this There is no
murder by Appeal or otherwise shall be out of the County where it is perpetrated And for this cause it was doubted at the Common Law where a stroak were given in one County and death ensued in another how it should be tryed And to avoid this doubt the Stat. of 2. E. 6. was made But it alwaies was clear that a fact in one County ought not to be tryed in another Note the Stat. of 26. H. 8. c. 6. allows that Indictments may be in County's next adjoyning but there is not any mention of Appeals and for this reason Certioraries have been granted to remove Indictments out of the Grand Sessions in Wales 2. Of wrong to the Husband and is by the Wife only of the death of her Husband to be prosecuted Touching this kind of Appeal I propose these Qâ—eries with Resolutions on them Qu. 1. Whether a Wife de facto shall have an Appeal Resp Some do hold and so do I that a Wife de facto shall have an Appeal of the death of her Husband but only she that is Wife de â—ure in fâ—vorem vitae and that there ne unques â—ccouple en loyal Matrimony shall be taken de jure strictly Qu. 2. Whether the Wife can have an Appeal although she cannot have a Writ of Dower Resp The Wife shall have an Appeal where she cannot have a Writ of Dower as if she Elope c. she is barred of her Dower but not of her Appeal and the reason is for that the Stat. barreth her of her Dower but not of her Appeal So if the Husband be attainted of Treason or Petit treason his Wife shall not be endowed and yet if any do kill him the Wife shall have an Appeal for notwithstanding the Attainder he remained her Husband Qu. 3. Whether she ought to be sole and unmarried that brings an Appeal of her Husbands Death Resp It is requisite that she be sole and unmarried that makes this Appeal for if she marry again her Appeal is gone though the new married Husband be dead within the year and day after his death that was slain Qu. 4. Whether the taking of a second Husband after Judgment and before Execution can binder the Execution of the Judgment Resp Not only a Widdow which hath an Appeal hanging abateth her Appeal and loseth it force by new Marriage but also if after Judgment and before Execution she take an Husband she loseth the Execution of the Judgment Qu. 5 What is the true reason why a Woman hath an Appeal de morte Viri Resp The reason wherefore this Action is given to a Widdow is not as Glanvil makes it Quia una cara est vir uxor for then the Baron might have an Appeal de morte uxoris which is never granted but her heir shall have it But the true reason why a Woman hath the Appeal de morte Viri is because by his death she is thought less able to live and maintain her self that therefore when she taketh another Husband cessante causa cessat effectus and her Appeal is gone as la Widdowes Quarentine is determined when she is once remarried 3. Of wrong done to the Appellants themselves as Robbery Rape and Maihem If in an Appeal of Robbery the Plaintiff omit any of the goods stoln they are forfeit to the King for the favour which the Law persumeth the Plaintiff beareth to the Felon and for that he cannot have restitution for more then is in his Appeal If the Jury find in an Appeal of Robbery for goods that the Defendant found them in the High-way in this case the Plaintiff for his false Appeal â—eking the blood of the Innocent shall forfeit his goods to the King If any Virgin Widdow or single Woman be ravished she her self may sue an Appeal of Rape prosecute the Felon to death and the Kings Pardon cannot aid him But if a Feme Covert be ravished she cannot have an Appeal without her Husband as appears 8. H. 4. 21. If a Feme Covert be ravished and consent to the Ravisher the Husband alone may have the Appeal and this by the Stat. of 6. R. 2. c. 6. And the Husband that this Statute speaketh of which may sue the Appeal must be a lawful Husband in Right and possession for ne unques accouple en loyal matrimony is a good Plea against him An Appeal of Maihem was brought by one Milles and the Maihem was assigned in his shoulder and the Defendant demanded the view and it was said that he should not have it because it was done de son tort demesue also it was said that Surgeons may heal and cure him and although he shall be tryed by Inspection of the Court or by Chirurgeons it was held be it one way or other it is peremptory for him c. It was held by all the Justices of the Kings Bench that in an Appeal of Maihem if the Defendant pray that the Maihem may be examined if the Justices or Surveyors which they require be in doubt whether it be a Maihem or not the Judges may refuse the examination and compel the Party to put it upon the Country Thus much of wrong done to the Appellants themselves I shall conclude this Learning touching Appeals with these Queries Qu. 1. Whether all Appeals ought to be sued in proper Person Resp It is answered that all Appeals are to be sued in proper Person and not by Attorney as Appeal of Maihem must be in proper Person A Woman which was Crossement enseint sued this Appeal and the Defendant was attainted the Womans Appearance was recorded for the whole Terme and yet by the better opinion she might not pray Execution by her Councel but ought to come in proper person therefore one of the Judges did ride to Islington to her to see if she were alive and desired Execution which she required and the Defendant had Judgment Qu. 2. Whether an Appeal may be commenced more then one way Resp It is answered that Appeals are commenced two wayes either by Writ or by Bill 1. By Writ when a Writ is purchased out of the Chancery by one Man against another commanding him that he shall appeal a third Man of some felony or other offence by him committed and to find Pledges that he shall do this with effect and this Writ is to be delivered to the Sheriff to be recorded 2. By Bill when a Man of himself giveth his Accusation of another Man in Writing to the Sheriff or Coroner and taketh upon himself the burthen of appealing him that is named in the said Writing And note that there is a diversity worthy of observation betwixt an Appeal by Bill and by Writ for in the Appeal by Original Writ both principals and accessories are generally charged alike without any distinction who be principals and who be accessories but otherwise in the Appeal by Bill Thus much
make it Felony 73 Where the Burning of an House without an intent to do it shall be Felony and wheren ot Ib. The Burning of a Man 's own Houses is no Felony 73 74 Causes Criminal Why Causes Criminal are called Pleas of the Crown 135 136 How they are brought to a Judicial hearing 136 Challenges to fight 107 Challenges of Jurors What number the Party may challenge what not 156 Chance-medley What it is 47 One Trained Souldier hurting another by mischance 47 Where the killing of another by misfortune shall be murder and where not 48 Where 't is Homicide in a Physician and where Covert Felony 49 Clergy In what particulars the benefit of Clergy is taken away at this day 127 A Rule touching this Clergy 128 Conviction When a Man is said to be convicted 151 Councel What advantages a Prisoner may take in case of Treason or Felony to have Council assign'd him 131 Council allow'd in Appeals but not in Indictments the reason of the diversity 131 132 A Prisoner may have Council in matters of fact 130 131 Duels They are against the Law of God Nature and the Laws of the Realm 102 The punishment of Duellists though no blood be shed 103 What Duells lawful 102 103. Error 157 Execution Where it ought to be done by a right Officer 156 Where it ought to be according to the Judgment Id. The means by which Execution may be avoided 157 Extortion What it is 96 More odious then Robbery 97 Felo de se The Description of a Felo de se 8 The reason why he forfeits Goods Ib. Where a Man shall be said Felo de se and where not 9 How Felo de se shall be enquired of where the Body cannot be found 10 His Goods not forfeited till found of Record 9 10 Where a Joyntenant becoming Felo de se shall forfeit but part where the whole 10 A Debt owing to Felo de se upon a bâ—re Contract is not forfeitable to the King 11 Felony A Pardon of all Felonies is no Pardon of Treason at this day 135 The extent of the word Felony Ib. To break a Prison whereby the Felons may escape is Felony 83 The begging of the Estate of a Delinquent before conviction and Attainder is illegal 151 Where none may seise the Goods of any Person before conviction Ib. No Goods of an Offender ought to be searched or Inventoried before Indictment nor removed before conviction Ib. Falsifying Attainders 157 Gifts 95 96 Homicide The Etymology of the word Homicide 2 It s right division Ib. How many sorts of Homicides there be 3 What Homicides are Felony and what not Ib. The Description of Homicide 2 Homicide voluntary what it contains 3 Jus criminis what 1 Indictment The signification and derivation of the word Indictment 141 142 The difference betwixt an Appeal Indictment 142 In Indictments words are so appropriated to offences that they cannot be expressed by any other words Ibid. Rules touching Indictments 142 143 Judge No man to be Judge in his owne Cause 50 Judges in criminal Causes ought to deliver their opinion before hand 134 The duty of Judges 133 134 Who Judges of Fact and who of Law 132 133 Judgement criminal The Persons consider'd in it Assistants in it who 130 Their duty Ib. In Judgement of High-Treason or Felony what is implyed 155 156 Jurors The properties of Jurors 132 133 King His Treasure the sinews of War 96 Head and health of the Common-Wealth 1 75 87 Making War solely appertains to him 82 Larceny Larceny what 55 It s twofold 55 56 What shall be said a felonious taking what not 56 57 Whether an Infant uâ—per the age of discretion can commit Larceny 57 58 Where there must be a felonious taking as well as a felonious carrying to make a Larceny 56 Where and where not a Feme Covert may be guilty of a Larceny 58 59 Where the Wife cannot steal the Goods of her Husband Ib. It may be committed of a thing that is delivered by Replevin 59 What shall be said a felonious carrying away to make it a Larceny 59 60 Larceny cannot be committed of Personal Goods that savor of the Realty Ibid. Where 't is Larceny to steal the sheets from the Dead 61 Where a Man may steal his own Goods Ib. Ligeance It cannot be shaken off 85 Lex Talionis 53 Libels Libel what it signifies 107 Libelling be it true or false is punishable by our Law Ib. How a Man must demean himself that finds a Libel 106 A French Libel punishable 107 A Libel punishable by Indictment Ib. Laws The Greek Law touching a Childs stealing of Goods 58 What the Civil is touching these following particulars § Self-Defence 9 A Mans Intention 9 44 Poysoning 13 Malice 14 A Woman pregnant 15 Physicians and Surgeons 49 A Mans Limbs 52 Life 8 Theft 55 An Infants stealing 58 Death 61 A Man stealing his own Goods 61 62 Robbery 64 Sacrilege 66 67 Pyrats 71 Burning of Houses 74 75 Treason 78 Calculation 80 81 Authority of making War 82 Ligeance 85 Fausonnery 86 Mad-Men 88 The Custom of places 90 Treasure 93 Robbing of Treasure 94 Gifts and Bribery 95 96 Rape 54 Riots c. 103 Force 102 Libels 107 Punishments 114 117 Personal offences 118 119 Doubtfull Interpretations 119 Circumstances 120 Principal and Accessory 128 Alienations 154 Life No Man has power over his own Life nor members 8 52 Misprisions The Derivation of the word and its Derivation 91 It is twofold 91 92 The punishment of Misprision of Treason 93 Every Treason and felony includes in it a Misprision 193 Where words without overt Act are as punishable as Misprision of Treason 92 Murder It s Derivation 8 How divided Ib. Murder how heretofore how at this day defined 11 Where a mistake in the principal shall make the Accessary guilty of murder and where not 12 What Persons are capable of being murdered 11 Poysoning the worst of Murders 13 Whether an Infant within the age of 9 years can be guilty of Murder 13 14 Where there ought to be a continued malice to make it murder and where not 14 15 Where 't is no Murder to kill an Infant en ventre de sa mere 15 Murder in a Mother to conceal the death of her Bastard-Child 16 Stabbing another where wilful murder Ib. What murders tryable before the Constable and Marshal 32 33 What Officers it is murder to kill 36 Malice Where to kill another without provocation is malice implied 33 34 How many kinds there be of malice impli'd Ib. Mayhem The signification and derivation of the word Mayhem 51 In what cases a Mayhem may be done and what not 51 Judges may use the help of Surgeons in point of a Mayhem 51 52 Mayhem how termed by the Canonâ—sts 51 Where a Man was indicted for mayming himself Ib. The antient punishment for him that maymed another 52 Maliciously to cut the nose is felony at this day 51 The degree of