But in case of an Indictment of death at the Suit of the King auterfoitz attaint de mesme le mort in Appeal is a good Plea Auterfoitz attaint de murder is a good Plea to an Indictment Co. 3. Inst f. 213. c. of Petit treason of the same death for in effect it hath the same Judgment and the self same forfeiture So likewise a Man may be attainted of Man-slaughter it is a good barre to an Indictment of murder of the same death and e converso Thus much of matters Judicial in criminal offences I go on now according to our first proposed Method to the Acts Judicial 8. Of Judicial Acts relating to publik Crimes Touching these Judicial Acts there are worthy of consideration these particulars The manner how Causes criminal are brought to Tryal 2. The Judgment or Sentence upon that Tryal or Arraignment 3. The Execution of that Sentence 4. The means whereby the Judgment or Execution may be escaped or delayed No Man is said to be arraigned 1. The manner of Arraigning a delinlinquent Co. Litt. 263. a. but meerly at the Suit of the King upon an Indictment found against him or other Record wherewith he is charged And there the Arraignment of the Prisoner is to take order that he appear and for the certainty of the Person to hold up his hand and to plead a sufficient plea to the Indictment or other Record whereupon they which follow for the Ring may orderly proceed If the party accused of Treason or Felony c. do at his Arraignment before the Judge deny the offence or as we say plead Not-guilty then shall he be tryed by a Jury of 12 Men dwelling nigh to the Vill where th offence was comitted such Men as to the Party accused be nothing allyed to certify the Judge upon the truth of the fact which at their appearance the Party arraigned may challenge peremptorily upon his own dislike without shewing any cause in favorem vitae the number of twenty in murder and other Felony And in case of High treason Petit treason Co. Litt. 156. b Co 3. Inst f. 227 228. and Misprision of treason he may challenge to the number of 35 And if he challenge peremptorily above 35 in case of Treason or Petit treason he forfeiteth his goods and Judgment of pain fort and dure shall be given against him as one that refuseth the Tryal of Law by challenging 3 full Juries Otherwise in case of Felony for no Law giveth forfeiture for challenging above twenty but the Court is to over-rule the Challenge But note Co. Litt. 156. b. that in case of Treason or Felony the Party arraigned may challenge for just cause as many as he can 2. But if the Party upon his Arraignment in case of Felony refuse to answer according to Law or say nothing he shall not be Judged to be hanged Co. Litt. 391. a. Co. 3. Inst 14 217. but for his contempt he shall undergo pain fort and dure which makes no Attainder for the felony nor forfeiture of his Lands nor corruption of Blood Otherwise in case of High treason for if the Party refuse to answer according to Law or say nothing he shall have such Judgment by Attainder as if he had been convicted by Verdict or Confession 3. Co. Litt. 391. a. If the Party arraigned be found Guilty by Verdict or Confession then he is said to be convicted which is before he hath Judgement or Sentence and thereupon he doth forfeit his goods and Chattels But note that the begging of the goods or Estate of the Delinquent indicted of any Treason Felony or other offence before he be convicted and attainted is utterly unlawfull Co. 2. Inst 43. Co. 3. Inst 1â—7 229. Co 3. Inst 229. because before Conviction and Attainder nothing is forfeited to the King nor granted by him And besides it either makes the Prosecution more violent and undue then quiet and equal proceeding of Law and Justice would permit or else by under hand Commission and agreement hinder the due course of Justice for examplary punishment of the offender Note further that before Indictment the goods or other things 2. Of the Judgment or Sentence pronounced of any criminal cannot be searched Inventoried or in any sort seised nor after Indictment seised and removed or taken away before Conviction or Attainder Thus much of the manner touching the Arraignment of a Delinquent Assoon as Judgment or Sentence is pronounced by the Judge the Party arraigned is said to be attainted mort en Lev But though the Delinquent by the Attainder be a dead Person in Law Co. 2. Inst f. 215 213. yet maugre the Attainder his Body may at the Suit of a Subject be taken in execution upon a Judgment or Stat. c. Cro. 1. part Ogâ—â—ll v. Paston Cro. 1. part Trussells Case And he may be executed for Treason or felony notwithstanding such Execution had against him As to Attainder take these Queries together with Solutions Qu. 1. Whether there be a diversity betwixt an Attainder and an Entry into Religion Resp There is a great difference between an Attainder of treason or felony and an Entry into Religion for he that is attainted of treason or felony Co. 3. Inst f. 215. hath capacity and may purchase Lands to him and his Heirs but so cannot he that is entered into Religion Qu. 2. When a felony is perpetrated whether there be a Discrimination in Law betwixt purchasing of Lands before and after Attainder Resp If a Man commit felony and after purchase Land and then is attainted he has capacity to purchase but not to hold it for in that case the Lord of the fee shall have the Escheat Co. Litt. f. 2. b. But if a Man attainted of felony purchase Lands in this case the King shall have it by his prerogative and not the Lord of the fee for a Man attainted hath no capacity to purchase but only for the benefit of the King Qu. 3. Whether a Person attainted after a Pardon can have an Action of Battery c. committed before the Pardon Resp If a Person be beaten Co. 3. Inst 215. or maimed or a Woman attainted be ravished after Pardon they shall have an Action of Battery Appeal of Maime or Rape It is to be known Co. Litt. 390. b. Perkins ss 27. that there be two manner of Attainders the one after appearance and that in 3 manners by Confession by Battel or by Verdict the other upon Processe to be outlawed which is an Attainder in Law But upon every one of these Judgment ought to be given otherwise it shall not be said an Attainder Now as upon conviction a Delinquent forfeiteth his good and Chattels so upon Attainder that is by Judgment given his Lands and Tenements are forfeited But touching the forfeiture of Lands there is a diversity betwixt an Attainder of felony by outlawry upon an
AN ABRIDGMENT OF THE LAWES OF ENGLAND Touching Treasons Rebellious Murthers Conspiracies Burning of Houses Poysonings and other Capital Offences With such Readings thereon as shew the several wayes whereby Offenders in such cases may become Guilty By John Bridall Esq LONDON Printed for John Bellinger in Cliffords-Inne-Lane and Tho. Dring at the Harrow at Chacery-Lane-End in Fleet-street 1679. The general Titles contained in the TABLE ACcessories Affrayes Appeals Approver Assemblies Arraignment Attainder Battery Bribery Burning of Houses Causes Criminal Challenges of Jurors Chance-Medley Clergy Conspiracies Vide Treason Conviction Councel Duels Errors Execution Extortion Felo de se Felony Gifts Homicide Indictment Judgment Criminal Jurors King Larceny Ligeance Lex Talionis Libels Lawes Life Mispristons Murther Malice Mayhem Offences Petit Treason Poyson Piracy Punishment Principals Pain Fort Dure Pardon Rape Riots Robbery Roues Rumours Rebellion Vide Treason Se Defendendo Striking in the Kings Court. Theft Treason Verdict Advertisement THE Campagne of the French King in the Year 1677. In which is described Exactly the Three Sieges and taking in of Valenciennes by Assault and of the Town and Citadel of Cambray and of St. Omers With an Account of the Battel of Cassel Printed for T. Dring in Fleet-street JVs CRIMINIS OR THE Law of ENGLAND TOUCHING Matters Criminal JVS CRIMINIS or the Obligation of Crime is whereby a Subject for a Delict or Offence against the Imperial Crown of England is obnoxious and liable to punishment And a delict or offence is whereby the King and Common-wealth which make but one are injured Of Offences commonly termed Pleas of the Crown some are perpetrated mediatly against the Crown though not principally yet consequentially And some immediatly are said to be committed against the King Himself who is Head of the Common-wealth and in whom all general Injuries reside and to whom the Reformation of all Publique wrongs doth inseperably appertain The former kind may be divided into 3 Classes viz. 1. Into those that have Relation to life it self such as Homicide 2 Into those that respect the Body and Members as Battery Mayhem and Rape 3. Into those that belong to Dominion or property such as Theft and burning of Houses The latter kind do comprehend High-Treason Misprision of Treason Robbing the King's Treasure Bribery Extortion striking in any of the King's Courts where He resides Personally or by Representation and all manner of Breaches of the Publique Peace such as Conjurations Routs Ryots Affrayes Duels Lybels and false Rumours Of these several kinds in their Order 1. Of those Crimes that are committed mediatly contra Coronam dignitatem Regis and do relate to Life it self as Homicides In Homicide are worthy of Observation the Etymologie of it and its general Division Est homicidium Lib. 3. c. 4. nu 3. de corona sayes Bracton hominis Occisio ab homine facta si enim a Bove Cane vel alia re non dicetur proprie Homicidium Est dictum Homicidium ab komine Caedo quasi hominis Caedim And with Bracton doth Concurre in this matter another antient Author viz. Mr. Horne whose very words are these Homicide est Occision de Home per Home fait Mirror c. 1. Sect. 9. car si soit per beste ou mischeance nest Homicide Thus much of the Definition and Origination of the word Homicide As for the right division of Homicide take this as followeth Of Homicides some be done 1. Proposito voluntarily and of malice fore-thought as petty-Treason and Murther 2. Impetu voluntarily and not of malice fore-thought Of these some be Felony as Man-slaughter and some be no Felony Of which some be in respect of giving back inevitably in defence of himself upon an assault of Revenge Co. 3. Jnsti f. 54. and some without any giving back as upon the Assault of a Thief or Robber upon a man in house or abroad Some upon the Assault of one that is under Custody as the Sherif or Gaoler assaulted by his prisoner some in respect that he is an Officer or Minister of Justice without any assault in Execution of his Office or Lawful warrant 3. Casu such as be no Felony neither forethought nor voluntary as Man-slaughters by misadventure Having shewed the Reader Sr. Edward Cook 's division of Homicide I begin with the first Branch viz. Homicide voluntary and of malice fore-thought and this conteines petit Treason and Murder Treason being derived from Trabir which is treacherously to betray Trahue betrayed 1 Petit Treason and Trahison per Contractionem Treason is the betraying it self it is divided into two parts into High Treason and petit Treason It is called High or Grand Treason in respect of the Royal Majesty against whom it is perpetrated Co. 3. Inst f. 4. 20. and Commparatively it is stiled petty Treason in respect it is committed against Subjects and inferior persons so that this petit Treason is when wilful Murder in the Estate Oeconomical is committed upon any Subject by one that is in subjection oweth Faith Duty and Obedience to the party Murdered as in these three Cases following which are only mentioned by the Statute of 25. E. 3. C. 2. de prodicionibus and likewise by Britton Cap. 8. 22. 1. When a servant slayeth his Master This was petit Treason by the Common Law for it appeareth by the Book 12. 12 Ass pl. 30. Ass that a woman servant killed her Mrs wherefore she had Judgment given to be burned which is the Judgment at this day of a woman for petit Treason And herewith agreeth 21 E. 3.17 Upon the Act aforesaid if the servant kill the wife of his Master 19 H. 6.47 Flowdens Com. 86. b. Crompt 20. it is petit Treason for he is servant both to the Husband and wife A servant upon malice pretended shooteth at a stranger and misseth him and killeth his Master being by this is petit Treason in the servant though he intended no hurt to his said Master yet because he intended Murther thereby A Servant commands one to beat his Master Crompt 20. and he killeth him this is petit Treason in the servant if he be present If a servant has an intent to kill his Master Co. lib. 1. Shellies case 99b 10. H. 6.47 Plowdens Com. 260. Co. 3. Inst f. 20. and before the Execution of his purpose departeth out of his Masters service and being out of his service put his Intent in Execution and kills him who was his Master this is petit Treason for the Execution of the Act hath a Retrospection to the Original Cause which was malice conceived when he was a servant A maid-servant conspires to kill her Mistress Moores Reports nu 227. f 91. it is petit Treason in her and Murder in the Actor 2. When a Wife slayeth her Husband The wife maliciously killeth her Husband this is petit Treason in her But if the Husband maliciously killeth his Wife this is
only Murther the reason of this diversity is for that the one is in subjection and oweth Obedience and not the other The wife poysoneth an Apple to the intent to poyson a stranger therewith Cromp. 20. and laid it to that purpose in a secret place and the Husband by chance eateth of it and dyeth thereof within a Year and a day this is petit Treason in the Wife for that she intended Murther thereby so if the Wife poysoneth an Apple or other thing and delivereth it to B. knowing of the poyson to give to C. and B. giveth it to the Husband without the assent of the Wife who eateth thereof in the Wives absence and he dyeth thereof this is petit Treason in the Wife But if the Wife poysoneth a thing Plowd Com. f 474. to the intent to poyson her Husband therewith the Husband eateth of it and becometh very sick but recovereth after a stranger eateth thereof and dyeth thereof this is onely murther in the Wife If the Wife and Servant conspire the Husbands death he is killed by the Servant Co 3 Just f 20. in the absence of the Wife this is petit Treason in them both and the Wife shall be burnt But if it had been a stranger it had been murder in him onely and petit Treason in the Wife Baron and Feme out of affection were resolved to go out of the World together The Wife buyes poyson both take it the Husband dyed It is a quaere in the Book whether this were murther in the Wife A Woman compasseth with her Avowterer The Womans Lawyer lib. 3. sect 44. the death of her Husband they assailed him Riding on the Highway beating wounding leaving him for dead and then they fled The Husband got up levied Hue and cry came before the Justices they sent after the Offenders which were gotten arraigned and the matter found by the Verdict the Adulterer was hanged the Woman burned to death the Husband living This Judgement was given when voluntas reputabatur pro facto Sic Metellus Celer Sergium damnavit non factum sed animus in questionem deductus est Plusque voluisse peccare nocuit quam non peccasse profuit But at this day in case of Felony Non debet obesse Conatus ubi injuria nullum habet effectum 3. When a Secular or Religious man stayeth his Prelate Ordinary or Superiour to whom he oweth Faith and Obedience Note that unto the Bishop of every Diocess the Clerks within their Diocess do owe Faith and Obedience which is called Canonical Obedience Note likewise that whatsoever Act will prove murder between strangers the same will make petit Treason from the Servant to his Master from the Wife to the Husband from the Clerk to his Prelate or Ordinary Mutatis Mutandis But whether from a Child to the Father or Mother c. may be a Quaere for some hold that it is petit Treason and others that it is not If the Child maliciously killeth the Father or Mother this sayes one is petit Treason although the Father or Mother at the same time gave neither meat drink or Apparel nor wages to such Child in respect of the duty of nature violated vide 21. E. 3.17 Book Treason 6. A Bastard killeth his Mother Crompt ' 21. this seemeth petit Treason for the Mother is certainly known The Son or Daughter in Law killeth the Father or Mother in Law with whom they dwell and do service and have meat Dalisons Rep. 1. Mar. 1. and drink it is petit Treason although such Child take no wages but the Indictment shall be by the name of Servant But my L. Coke says thus If the Child commit Parricide in killing his Father and Mother of which Solon interrogatus cur nullus parricidio supplicium indixisset Se id neminem facturum putasse respondit The Law-makers never imagined any child would do this case is out of the Stat. of 25. E. 3 c. 2. unless the child served the Father or Mother for wages or meat drink or apparel for that it is none of those three kinds specified in the Law aforesaid And yet sayes he the offence is far more hainous and impious in a child than in a servant for peccata contra naturam sunt gravissima but the Judges are restrained by the said Act to interpret it a simili or a Minore 〈◊〉 Majus The hainousness of this Parricide appears by that punishment which is ordained in the civil Law for those that are guilty of the Crime Paena parricidij more Majorum haec instituta est ut parricida virgis sanguineis verberatus deinde culleo insuatur cum Cane gallo gallinaceo vipera simia deinde in more profundum Culleus jactetur D. 48.9 9. Thus much of petit Treason Murder cometh of the Saxon word Mordrue ◠Murder Co Litt 287 b Stamfords Plees of Crown Lib 1 or Mordren and Mordridus is the Murderer even untill this day amongst them in Saxony from whence we have most of our words or it may be derived of Mort and Dire as Mors Dira a Cruel or Horrible death This Murther in our Law is Two-fold either of himself or of another 1. Of Murdering a mans self called Felo de se Felo de se sayes Coke is a man or woman which being Compos mentis of sound memory and of the Age of Discretion killeth himself which being lawfully found by the Oath of Twelve men all the Goods and Chattels of the party so offending are forfeited And the Reason why Felo de se doth forfeit all his Goods and Chattels is because it is an offence against the King who by that perpetration is deprived of a Subject And indeed no man by the Law of nature hath such power over his own life as to take it away or to oblige it by any Contract or Bargain vide Grot. Lib. 2. c. 21. nu 11. Lib. 3. c. 11. nu 18. Having shewed the Description of Felo de se and the Reason of forfeiting his Chattels I propose these Queries with their Resolutions Whether a person that is non compos mentis Quaere 1 giving himself a mortal wound and after recovering his memory before death ensues be Felo de se If one during the time that he is non compos mentis giveth himself a mortal wound Resp whereof he when he hath recovered his memory dyeth he is not Felo de se And the Reason is because the stroke which was the cause of his death was given when he was not Compos mentis Et actus non facit Reum nisi meus sit rea And this is agreeable to the civil Law Maleficia voluntas propositum distinguit D 47 253 voluntas propositum maleficium delinquentis distinguit Delictam cessat ubi delinquendi animus non est Whether a man can be said to be Felo de se upon an involuntary Act Qu 2 A man may be so As
Plus est hominem veneno extinguere Doctores ad Just 4 18 5 Just 4 28 5 D 48 81 3 quam gladio occidere Lege Cornelia veneficij Capite damnantur qui artibus odiosis tam venenis quam susurris magicis homines occiderint vel mala medicamenta publice vendiderint Whether an Infant within the age of Nine years can be guilty of Murder Qu 3 Vn Infant deins age ix ans occist un Enfant de ix ans Confesse le Felony Sul 〈◊〉 auxi fuit trove que quant il luy avoit tue il luy occult auxi le Sanke que fuit sur luy effundes si il ceo excuse And the Judges held that he ought to be hanged 3 H 7 1 b. But Fairefax said that the words of Fortescue were viz. That the Reason why a person is executed for Murder is for example that others may fear to offend But such punishment can be no example to such an Infant or to a person that hath not discretion Le Recorder de Londres monstre coment un enfant entra le age de x. ans xii ans fuit endite de mort il fuit appose de ceo il dit que il gard barbettes ove cestuy que est mort ils happen a variance per que il luy ferist en le gule puis en le Teste issint en divers Lieux del corps tanque qu'il fuit mort 3 H 7 12 b 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 Cod 9 47 7 do Poenis Gothofredus Qu 4 cadere potest i. e. si modo sit proximus pubertati ea sentiat in quibus deliquit Malitia minor is etatem justam esse representat ae supplet vel sic Malitiae non succurritur Whether Malice prepensed must be continuing till the mort al wound given Albeit there had been malice between two Sol and after they are pacified and made friends and after this upon a new occasion fall out Co 3 Inst f 51 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. Ibid 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 Qu 5 If a Woman be quick with Child Sol and by a Potion or otherwise killeth it in her womb or if a man beat her 22 E. 3 Cor 263. 8 E. 2 Cor. 418 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 D 48 8 8 quo partum abigeret constiterit eam in exilium preses Provinciae exiget Cicero in oratione pro Cluentio Avito scripsit D 48 19 39 de partu abact◠Milesiam quandam mulierem cum esset in Asia quod ab heredibus secundis accepta pecunia partum sibi medicamentis ipsa abegisset rei Capitalis esse damnatam Whether it be murder in a Mother to conceal the death of her Bastard Child Qu 6 It is Enacted Sol That if any Woman be delivered of any Issue Male or Female which being born alive 21 Jac c 27 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 Qu 7 as in case of wilful murder It is Enacted Sol That every person which shall stab 1 Jac c 8 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 Confession 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 Qu 8 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 Sol 13 H 4 5 6 and fight there and the one kill the other Stamf pl. cor f. 65. Co. Lit. 70. a b 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 flain 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 Franee Co. Lit. 70. b. Co. 3 Inst 48 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 Co lib. 9. Mac. Rellyes 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 be malice precedent and that such a slight provocation is not a sufficient ground or pretence for a Quarrel Cro. 1. part Wats v. Braine f. 779. 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 Cro. 3 part Hallow case 131. 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 Co. 3. Inst 52. 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 in fused into his meat or drink 2. Auhelitu by taking in breath as by a poysonous perfume 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 Co lib 9. Mackalleys case Cro 2 part Mackalleys case Co. lib 4. Youngs case 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 Co. Inst f. 52. 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 Cro 2 part Mackalleyes case 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 Crook 3
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 11. H. 7.23 a. 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 Co. 3. Inst f. 57. 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 Co. 3. Just 257. and giveth him such Physick as within 3 dayes he dies thereof without any felonious intent and against his will it is no Homicide But Briton cap. 5. De Homicides saith that if one who is not of the mystery of a Physician or Chirurgion take upon him the Cure of a man and he dieth of the potion or Medicine this is saith he Covert felony In the Civill Law it is thus Medico imputari eventus mortalitatis non debet D. S 18.6.7 Ita quod per imperitiam commisit imputari ei debet praetextu humanae fragilitatis delictum decipientis in periculo homines inoxium esse non debet Imperitia culpae adnumerontur Just 4.3.7 veluti si Medicus ideo servum tuum occiderit quia male secuerit aut perperam ei medicamentum dederit Thus much of the Pleas of the Crown that have relation to the life of man I proceed now to those that respect the body and members 2. Of those Crimes that appertain to mans body or members and they are Battery Mayhem and Rape Battery 1. Of Battery is when a man assaulteth and beateth another this is against the Law and Peace of the Realm which ordaineth that no man shall be his own Judge or revenger of his own private wrong but shall leave this to the Censure of the Law And this is agreable to the Roman Laws Cod. 3.5 1. Generali lege decernimus neminem sibi esse judicem vel jus sibi dicere debere In re enim propria iniquum admodum est alicui licentiam tribuere sententiae D. 50.17.176 Again Non est singulis concedendum quod per Magistratum publiâ—â— possit fieri ne occasio sit Majoris tumultus faciendi wherefore he that is so beaten may indict the other party who upon it shall be fined to the King But some there are that may in a reasonable and moderate manner chastise correct and beat others 1. In respect of power proceeding from the Law of nature as Parents may correct their own Children 2. In respect of Authority oeconomical as the Master may chastise his Servant or Apprentice 3. In respect of power arising from Civil Justice as the Gaoler and his servant the unruly prisoners the Officers him that is arrested and will not otherwise obey Also a man may justify the beating of another in defence of his own person or of the person of his Wife Father Mother or Master But when any is assaulted or beaten in Church or Churchyard Cro. 2 part Frances v. it is not lawful for him to return or give any blows in his own defence as he may elsewhere in other places Mahim 2. Of Mahim Co. Lit. 126. a. F. 288. a. or maime Mahemium cometh of the old French Mehaigne a Maime a corporal hurt whereby a man loseth the use of any member The Canonists call it Membri mutilationem or Mayhem is where by the wrougful Act of another any member is hurt or taken away whereby the party so hurt is made unperfect to fight As if a bone be taken out of the head or a bone be broken in any other part of the body or foot or hand or finger or joynt of a foot or any member be cut or by some wounds the sinews be made to shrink or other member or the fingers made crooked or if any eye be put out or the fore-teeth broken or any other hurt in a mans body by means whereof he is made the less able to defend himself or offend his enemy But the cutting of an ear or * Note that to cut maliciously the nose of another is made felony by a Law enacted in the Reign of his now Majesty nose or breaking the hinder teeth or such like is no Mayhem because it is rather a deformity of the body then diminishing of strength and that is commonly tryed by beholding the party by the Justices And if the Justices stand in doubt whether the hurt be a Mayhem or not they use and will of their own discretion take the help and opinion of some skilful Chirurgeon to consider thereof before they determine upon the Cause But whether a man may be indicted for maiming himself Co. Lit. 127. a b. To this it answered that he may As it appears in the Case of one Wright anno 11.
William Wallers Case f. 373 374. 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 contempt of the King c. and upon this being arraigned and found guilty because the Indictment was not that he did it in presence of the Justices nor in the presence of the King all the Judges agreed that the Judgment of cutting off his hand should not be given and so seriatim they delivered their opinions But because this offence was in the Palace neer the Hall door whereby tumults might have been made and because it was found sitting all the Courts and in disturbance of Justice and Law and in contempt of the King the Court awarded that he should be imprisoned for the said offence during the Kings pleasure and should pay 1000 pounds fine Thus much where the King is present by Representation If any strikes in the Kings Palace 33. H. 8. c. 12. where the Kings Royal Person resideth he shall not lose his right hand unless he draw blood but if he draw blood then his right hand shall be strucken off he perpetually imprisoned and fined and ransomed By what hath been said a Man may perceive a great differenee between a blow or stroke in or before the said Courts of Justice where the King is representatively present and the Kings Courts where his Royal Person resideth for in the Kings House blood must be drawn which needeth not in or before the Courts of Justice when the Judges are doing of that which to Justice appertaineth and the reason is Quia Justitia firmatur Solium 7. Routs A Rout is when People do assemble themselves together and after do proceed or rid or go forth or do move by the instigation of one or more who is their Leader This is called a Rout because they do move and proceed in Routs and members Also where many assemble themselves together upon their own common Quarrel and brawles as if the Inhabitants of a Town will gather themselves together to break hedges pales or such like to have Common there or to beat another that hath done to them a common displeasure Co. 3. Inst 176. Lamb. lib. 2. c. 5. or such like that is a Rout and against the Law although they have not done or put in execution their mischievous intent if so be they do go ride or move forward after their first meeting Note that there is diversity between committing of a great Rout or the like and Levying of War for example as if three or four or more do rise to burn or put down an Inclosure in Dale Co. 3 Inst f. 9 10. which the Lord of the Mannour of Dale hath made there in that particular place this or the like is a Rout a Riot or an unlawfull Affembly and no Treason But if they have risen of purpose to alter Religion established within the Realm or Laws or to go from Town to Town generally and to cast down Enclosures this is a Levying of War though there be no great number of Conspiratours within the perview of the Statute of 25. E. 3. c. 2. because the Pretence is publique and general and not private in particular As it was resolved Pasch 39. Eliz. by all the Judges of England in the case of Richard Bradshaw Miller Robert Burton Mason and others of Oxfordshire 8. Riot Riot in Latine Riotum cometh of the French word Rioter id est Rixari Co. 3. Inst f. 176. and in the Common Law signifieth when three or more do an unlawful Act as to beat any Man or to hunt in his Park chase or warren or to enter or to take possession of another Mans Land or to cut or destroy his corn grasse or other profit c. By the Statute of 17. R. 2. and 13. H 4. 17. R. 2. c. 8.13 H 4. c. 7. the Justices of Peace and Sheriff are to arrest those that commit Riot and to record that which they find done in their presence against the Law Each Man that is able 2. H. 5.8 ought to help to repress Riots upon pain of Imprisonment and to make fine to the King Evans and Cottington and 7. others were indicted for a Grand Riot that they with others there named to the number of 1000. persons made a Rescous and assault upon Henry Smith a Baylif who by virtue of a Warrant upon a Bill of Middlesex against William Cleer had arrested him and was carrying him to Prison and they procured him to escape The Arrest was at Charing Cross in the Parish of St. Martins aad after the Arrest they assaulted the Bayliffes and beat them and the Bayliffes putting the Prisoner into an house for safe keeping against the tumult they assaulted the house and notwithstanding a Justice of Peace assisted with three Constables made proclamation for keeping the Peace and for their departure yet they continued their assault breaking open the house and with ladders taken from the Kings House of White-Hall where the King with His Court was resident upon the 24. of March 13 Car. in the afternoon of the said day made this Riot and Rescous and carryed the Prisoner away through the Kings House and caused him to escape Upon this Indictment 9. of them being arrested pleaded Not-guilty and 4. of them viz. Evans Cottington Groom and Heatly being arraigned were found guilty and 5 of them were found Not-guilty but against three of them was probable evidence that they were aiding to this Riot and Rescous but the Jury acquitted them wherefore because it was so great a Riot and offence being committed so neer the Court it was adjudged that the said four persons which were so convicted should be committed to Prison and every one of them should pay 500. pounds fine to the King And that every of them should stand on the Pillory at Westminster and Charing Cross where the Riot was done and that Thomas Groom who was a Cobler and entered into the house with a drawn sword and a kettle upon his head as an helmet to defend himself should stand on the Pillory with a sword in his hand and a kettle upon his head and should be bound with good secuties for their good behaviour before they should be delivered And the three which were acquitted against whom there was such probable evidence were bound to find securities for their good behaviour Note Co. 3. Inst f. 176. An unlawful Assembly is when three or more assemble themselves together to commit a Riot or Rout and do it not One or more sayes the Lord Coke may commit a force Co. Litt. 257 a. Co. 3. Inst f. 176. three or more may commit an unlawful Assembly a Riot or a Rout A multitude as Some have said must be ten or more Multitudinem decem faciunt And so said they it is said de grege hominum But Coke tells
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 2 Of the Assistants 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 2 H 4 c 10 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 26 Ass pl 24 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 Co. lib. 6 f 14 Arundels case 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 1. H. 7 â— 22 b. from whence he was drawn by force but 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 Appeal brought Doctor Stud. lib. 2. c. 48. but that of common presumption the Appellant hath malice against the Apellee and therefore if the Judges should in those Cases shew themselves to Instruct the Appellees the Appellants would grutch and think them partial and therefore as well of the Indempnity of the Court as of the Appellee in that Case that he be not guilty the Law suffereth the Appellee to have Councel but when a man is Indicted at the Kings Suit the King intendeth nothing but Justice with Favour and that is to the rest and quietness of his faithful Subjects and to pull away Misdoers among them charitably and therefore the King will be contented that his Justices shall help forth the Offenders according to the Truth as far as Reason and Justice may suffer Note Co 3. Inst 29. that in Scotland in all Criminal Cases yea in cases of High Treason Pars rea may have Councel learned Thus much of the Assistants There is in Criminal or Publique Judgement a two-fold Judg â— Of the Judge one of matter of Fact and that is the Iury whose Office is to find out the truth of the Fact Co Lit. 226. a. lib. 4. Heydons case â—2 a. lib. 9. Dowmans case f 13 a. the other of Law-matters and that is the Kings Justice whose Office is to find out the truth of the Law Ad questionem facti nen respondent Iudices ita ad quoestionem Iuris non respondent Iuratores Of these particularly 1. Of the Iury. Iurors ought to be persons competent and that they be such it is required that every Juror that is returned for the Tryal of the life of man Co Lit 1â—5 b 272 a 78 b. ought to have three qualities 1. He ought to be Dwelling most near to the place where the question is moved for Lex intendit vicinum vicini facta scire Stat. 2. H 5 c. 3 Stat. 2. 2. He that passeth in an Enquest of Life and death ought to have Lands and Tenements to the value of 40 Shillings 3. He ought to be least suspicious that is to be indifferent as he stands unsworn and then he is accounted Liber legalis homo otherwise he may be challenged and not sufferred to be sworn The Determination of the matter of fact by Jurors Co Lit. 226. a. Co. lib. 9. f. 13. a. Dowmans Case is termed in our Law a Verdict in Latin Veredictum quasi dictum veri satis And of Verdicts some are general some special or at large It is called a Special Verdict or at Large because the Jurours find the special matter at large Co. Lit. f. 226. b. leave the Judgment of Law thereupon to the Court Of which kind of Verdict it is said Omnis conclusio boni veri Judicii sequitur ex bonis veris praemissis dictis Juratorum Touching special Verdicts in Crown matters Vide Cro. 3. part Hallowayes case Cookes case f. 537. 2. Of the Judge in matters of Law The Judges that are to decide and discusse matters in Law are bound to observe these particulars § 1. They ought to judge secundum allegata probata Quotiescunque sententiam fert Judex secundum allegata probata ferre debet 2. They ought to see that the Indictment Co. 3. Inst f. 1â—7 Tryal and other proceeding be good and sufficient in Law otherwise they will by their erronious Judgment attaint the Prisoner unjustly 3. The Court ought to be instead of Countel for the Prisoner to see that nothing be urged against him contrary to Law and right Co. 3. Inst f. 29. nay any Learned Man that is present may informe the Court for the benefit of the Prisoner of any thing that may make the proceedings erronious 4. The Jadges ought not to deliver their opinions before hand of any Criminal cause
that may come before them judicially to the end that The Tryal may be more indifferent seeing the safety of the Prisoner consisteth in the indifferency of the Court Co. 3. Inss 29. And how can they be indifferent who have delivered their opinions before hand without hearing of the party when a smal addition or substraction may alter the Case 5. Judges ought in giving Sentence especially in ambiguous Cases Co. Lib 9. Dowmans Case 13. a. to avoid precipitation because ad poenitentiam properat cito qui judicat Festinatio Justitiae noverca Touching Temerity or Hastiness take these foreign Authors Temeritas est damnare quod nescias sayes Seneca Temeritate omnis actio vacare debet Ciccro 1. Offic. Nihil temeâ—itate turpius Id. dâ— Natura Nihil a gravitate Sapientis temeritate disiunctius 4. Academ Deliberabo Lex vult nihil temere fieri sayes Seneca lib. 2. Controv. 11. Hitherto of the Persons that are conversant in Judgment touching publick Crimes or offences 7. Of the Matters of Judgments Criminal and how they are brought to a judicial Decision The things or matters of publick or criminal Judgments are Causes proceeding from High treason Felony or other Misdemeanours Touching High treason and Felony two things are to be observed 1. In antient time every Treason was comprehended under the name of Felony but not e contra 2. E. 4.14.18 E. 4.10.23 Ass Pl. 49. and therefore in our antient Books by the Pardon of all felonies High treason or Counterfeiting the Great Seal and of the Kings Coyn c. was pardoned But the Law now is and of long time hath been otherwise holden And therefore by the Law at this day under the word Felony in all commissions c. Co. Litt. 391. a. are included Petit treason Murder Homicide Burning of Houses Burglary Robbery Rape c. Chance-medley Se defendendo and Petit Larceny but not High treason for it is not comprehended under the word Felony and therefore ought to be especially named in the Kings Pardon or Charter 2. That criminal or publick Causes are called Pleas of the Crown Co. 2. Inst f. 22. but they are not so called as some have said because the King Jure Coronae shall have the Suite and Common Pleas because they be held by Common Persons for a Plea of the Crown may be holden betwixt Common Persons as an Appeal of Murder Robbery Rape Mayhem c. and the King may be party to a Common Plea as a Quare impedit and the like But now how these criminal matters are brought to a judicial hearing is the question It is answered that they are brought by way of Accusation and Exception Accusation doth proceed either by way of Appeal 1. Of Accusations or by way of Indictment and first of Appeals Appeal Appeal Appellum cometh of the French word Appeller that signifieth to accuse Co. Litt. 123. b. 126. b. or to appeal or appeach An Appeal is therefore an Accusation of one upon another with a purpose to attaint him of Felony by words ordained for it Now Appeals are of three sorts Co. Litt. 287. b. 1. Of wrong to his Successor whose heir he is and that is only of Death which is of two sorts of Murder of Manslaughter but of Chancemedley no Appeal doth lye As touching Appeal of Murder this Quaere is put Qu. Whether Tryal of Murder by Appeal ought to be brought in the County where the fact was committed Resp It is adjudged that in an Appeal of Murder the writ shall abate if it be not brought in the County where the fact was committed for it is against a fundamental Rule of Law that a Tryal of murder by Appeal or otherwise Cro. 3. part Sontley v. Price 247. 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 Co. Litt. 33. b. Touching this kind of Appeal I propose these Queries 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 jure in favorem vitae and that there ne unques accoupse 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 Co. Litt. 33. b. where she cannot have a Writ of Dower as if she Elope c. she is barred of her Dower but not of her Appeal West 2. c. 34. Co. Litt. 33. b. 37. a. Co. 3. Inst f. 215 35. H. 6.63 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 〈◊〉 The Woins Law b. 5. ct 1. 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 hinder 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 sma H. 4.41 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 caro est vir uxor for then the Baron might have an Appeal de morte uxoris The Womans Lawer lib. 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
Pleas of the Crown 135 136 How they are brought to a Judicial hearing 136 Challenges to fight 107 Challenges of Jurors What number the Party may challenge what not 156 Chance-medley What it is 47 One Trained Souldier hurting another by mischance 47 Where the killing of another by misfortune shall be murder and where not 48 Where 't is Homicide in a Physician and where Covert Felony 49 Clergy In what particulars the benefit of Clergy is taken away at this day 127 A Rule touching this Clergy 128 Conviction When a Man is said to be convicted 151 Councel What advantages a Prisoner may take in case of Treason or Felony to have Council assign'd him 131 Council allow'd in Appeals but not in Indictments the reason of the diversity 131 132 A Prisoner may have Council in matters of fact 130 131 Duels They are against the Law of God Nature and the Laws of the Realm 102 The punishment of Duellists though no blood be shed 103 What Duells lawful 102 103. Error 157 Execution Where it ought to be done by a right Officer 156 Where it ought to be according to the Judgment Id. The means by which Execution may be avoided 157 Extortion What it is 96 More odious then Robbery 97 Felo de se The Description of a Felo de se 8 The reason why he forfeits Goods Ib. Where a Man shall be said Felo de se and where not 9 How Felo de se shall be enquired of where the Body cannot be found 10 His Goods not forfeited till found of Record 9 10 Where a Joyntenant becoming Felo de se shall forfeit but part where the whole 10 A Debt owing to Felo de se upon a bare Contract is not forfeitable to the King 11 Felony A Pardon of all Felonies is no Pardon of Treason at this day 135 The extent of the word Felony Ib. To break a Prison where by the Felons may escape is Felony 83 The begging of the Estate of a Delinquent before conviction and Attainder is illegal 151 Where none may seise the Goods of any Person before conviction Ib. No Goods of an Offender ought to be fearched or Inventoried before Indictment nor removed before conviction Ib. Falsifying Attainders 157 Gifts 95 96 Homicide The Etymology of the word Homicide 2 It s right division Ib. How many sorts of Homicides there be 3 What Homicides are Felony and what not Ib. The Description of Homicide 2 Homicide voluntary what it contains 3 Jus criminis what 1 Indictment The signification and derivation of the word Indictment 141 142 The difference betwixt an Appeal Indictment 142 In Indictments words are so appropriated to offences that they cannot be expressed by any other words Ibid. Rules touching Indictments 142 143 Judge No man to be Judge in his owne Cause 50 Judges in criminal Causes ought to deliver their opinion before hand 134 The duty of Judges 133 134 Who Judges of Fact and who of Law 132 133 Judgement criminal The Persons consider'd in it Assistants in it who 130 Their duty Ib. In Judgement of High-Treason or Felony what is implyed 155 156 Jurors The properties of Jurous 132 133 King His Treasure the sinews of War 96 Head and health of the Common-Wealth 1 75 87 Making War solely appertains to him 82 Larceny Larceny what 55 It s twofold 55 56 What shall be said a felonious taking what not 56 57 Whether an Infant unper the age of discretion can commit Larceny 57 58 Where there must be a felonious taking as well as a felonious carrying to make a Larceny 56 Where and where not a Feme Covert may be guilty of a Larceny 58 59 Where the Wife cannot steal the Goods of her Husband Ib. It may be committed of a thing that is delivered by Replevin 59 What shall be said a felonious carrying away to make it a Larceny 59 60 Larceny cannot be committed of Personal Goods that savor of the Realty Ibid. Where 't is Larceny to steal the sheets from the Dead 61 Where a Man may steal his own Goods Ib. Ligeance It cannot be shaken off 85 Lex Talionis 53 Libels Libel what it signifies 107 Libelling be it true or false is punishable by our Law Ib. How a Man must demean himself that finds a Libel 106 A French Libel punishable 107 A Libel punishable by Indictment Ib. Laws The Greek Law touching a Childs stealing of Goods 58 What the Civil is touching these following particulars § Self-Defence 9 A Mans Intention 9 44 Poysoning 13 Malice 14 A Woman pregnant 15 Physicians and Surgeons 49 A Mans Limbs 52 Life 8 Theft 55 An Infants stealing 58 Death 61 A Man stealing his own Goods 61 62 Robbery 64 Sacrilege 66 67 Pyrats 71 Burning of Houses 74 75 Treason 78 Calculation 80 81 Authority of making War 82 Ligeance 85 Fausonnery 86 Mad-Men 88 The Custom of places 90 Treasure 93 Robbing of Treasure 94 Gifts and Bribery 95 96 Rape 54 Riots c. 103 Force 102 Libels 107 Punishments 114 117 Personal offences 118 119 Doubtfull Interpretations 119 Circumstances 120 Principal and Accessory 128 Alienations 154 Life No Man has power over his own Life nor members 8 52 Misprisions The Derivation of the word and its Derivation 91 It is twofold 91 92 The punishment of Misprision of Treason 93 Every Treason and felony includes in it a Misprision 193 Where words without overt Act are as punishable as Misprision of Treason 92 Murder It s Derivation 8 How divided Ib. Murder how heretofore how at this day defined 11 Where a mistake in the principal shall make the Accessary guilty of murder and where not 12 What Persons are capable of being murdered 11 Poysoning the worst of Murders 13 Whether an Infant within the age of 9 years can be guilty of Murder 13 14 Where there ought to be a continued malice to make it murder and where not 14 15 Where 't is no Murder to kill an Infant en ventre de sa mere 15 Murder in a Mother to conceal the death of her Bastard-Child 16 Stabbing another where wilful murder Ib. What murders tryable before the Constable and Marshal 32 33 What Officers it is murder to kill 36 Malice Where to kill another without provocation is malice implied 33 34 How many kinds there be of malice impli'd Ib. Mayhem The signification and derivation of the word Mayhem 51 In what cases a Mayhem may be done and what not 51 Judges may use the help of Surgeons in point of a Mayhem 51 52 Mayhem how termed by the Canonists 51 Where a Man was indicted for mayming himself Ib. The antient punishment for him that maymed another 52 Maliciously to cut the nose is felony at this day 51 The degree of this offence called mayhem 53 Offences An offence or delict what 1 How many ways offences are committed Ib. What offences despoil Men of their property 54 Offences that injure Mans Body or members 50 Offences relating to life