a Lords freeholder to plead That those tenants of the plaintifes which departed from their tenancies were the fréeholders and the fréehold tenants of the plaintifes and not his tenants at will For if it be so the plaintife shall recouer nothing against the defendant because hee hath other sufficient remedie to recouer the seruices of his fréeholders or the land in stead of thē And so it is to plead that the tenants which departed 21. H. 6. 31. were tenants for terme of yeares 6 In the cases aforesaid he that is wronged in his owne person his seruants or tenants by the menace of another whereby hée sustaineth losse shall haue his action of Trespasse against the offendor for the said menace and the hurt which he receiueth thereby and the king also shall haue a fine of the offendor for that the menace was of life and member and suggested to bee done vi armis and so tended to the breach of the peace But if it bée such a menace as doth not tend to the breach of the peace Menace which is iustifyable then the law is otherwise for then the partie menaced shall neither haue an action of Trespasse or other remedie against the menacer neither shall the king haue a fine of him As if a man dye seised of certaine lands and a stranger will abate 22. H. 6. 48 21. H. 6. 26. 9. H. 7. 7. and then the heire of him who dyed seised will enter vpon the stranger and menace and threaten him That if he will not depart from the possession of the same land that then hée shall repent it as the law will allow this is menace iustifiable for that he hath said no more than the law will allow him to performe And in like sort if A. be disseised of his fréehold eiected out of his terme of yeares Li. Intr. 555 dispossessed of his goods beaten assaulted or euill intreated by B. if in this case A. will say vnto B. That he will not endure those wrongs nor put them vp at his hands but will prosecute suit according to the law of the Realme in the sharpest maner that he can for the redresse of those iniuries and for the due punishment of B. this is menace iustifiable and nothing tending to the breach of the peace for A. hath said nothing but that the law will permit him to doe And in these cases the menacer doth yeeld to make the law iudge of his wrongs and that also in peaceable manner but in the former cases the menacer doth threaten to be the reuenger of his owne iniuries and so to be his owne iudge and that also in a forcible and vnlawfull sort And so it is if one man owe money to another and at the time assigned doth not pay if the creditor do say to the debtor that he will sue him according to the course of law 16. E. 4. 7. and imprison him for his debt this is menace iustifiable for the law doth allow him to doe it 7 As menace in words is accounted in many cases to be a meane of the breach of the peace and so punishable by the lawes of the realme so menace by deeds by behauiour gesture wearing of armour or vnusuall and extraordinarie number of seruants or attendants is accounted to be in affraie and feare of the people a meane of the breach of the peace and so punishable for the law doth intend that he which in a peaceable time doth ride or goe armed without sufficient warrant or authoritie so to doe doth meane to breake the peace and to doe some outrage seeing she is able and wil be alwaies ready to defend euery member of the common weale from taking or receiuing of force or violence from others if himselfe doe not giue cause to the contrarie Whereupon by a Statute made at Northhampton St. 2. E. 3. 3. anno 2. Ed. 3. it was enacted That no man great nor smal of what condition soeuer he be except the kings seruants in his presence his ministers in executing of the kings precepts or of their office and such as be in their companie assisting them and also vpon a Crie made for armes to keepe the peace and the same in such places where such acts happen be so hardie to come before the kings Iustices or other the kings ministers in doing their offices with force and armes nor bring no force in affraie of the peace nor to goe nor ride armed by day nor by night in faires markets Menace by going or riding armed nor in the presence of the Iustices or other ministers nor in no part elsewhere vpon paine to forfeit their armour to the king their bodies to prison at the kings pleasure And that the kings Iustices in their presence Sherifes and other ministers in their bailiwicks Lords of franchises their bailifs in the same mayors bailifs of cities boroughs within the same cities boroughs borough-holders wardens of the peace within their wards shal haue power to execute this act And that the Iust assigned at their cōming down into the coūtrey shall haue power to inquire how such officers Lords haue executed their offices in this case to punish them whom they find haue not done that which pertained to their office St. 7. R. 2. 13 20. R. 2. 1. And after by a statute made anno 7. R. 2. it was ordained That no Lord Knight nor other little or great shall go nor ride by night or by day armed nor beare sallet or skull of yron nor other armour vpon the paine of forfeiture thereof to the king except the kings officers and ministers in doing their offices And by the same statute it was also assented that none should ride or goe with Launcegaies Launcegaies beeing an armour defensiue then vsed in affraie of the people but that the same Launcegaies should be for euer put out 8 And shortly after the same Statute of 2. Ed. 3. was put in execution Wearing of a priuie coate for a knight was attached and arraigned in the kings Bench for that hee did weare armor vnder his vpper garment in the kings palace 24. E. 3. 33. and in Westminster hall who pleaded that there was debate betwéen him and another knight who did that weeke strike him and yet did menace him and that for feare of further perill and to saue his life hee did weare the same armour But this was adiudged no plea for the court did award that hee should forfeit his armour and be committed to the marshalsey And though he desired to be let to mainprise he was not admitted thereunto vntill the kings pleasure was knowne And the other knight his aduersarie was sent for into the kings Bench and there commanded vpon paine of all that he could forfeit that hee should not meddle nor doe any thing but that which was good to his said aduersarie Labourers shall weare no weapons
is depending to giue iudgement for the plaintife then the def may haue an action of Maintenance against him for that the same iudgemēt is a thing wholly belonging to the office of a Iudge and not of a Iuror therfore he doth therin intermeddle with another mans office and another mans cause more than he hath to do or may iustifie and so hath committed vnlawfull maintenance Maintenance in a Iuror 18 If a Iurie be charged to inquire of a matter in issue 17. E. 4. 5. 18. Ed. 4. 4. one Iuror may persuade his cōpanions or any of them to passe for the plaintife or def as he conceiueth the truth of the cause to be or as their euidence doth induce them this is no maintenance but if one of the Iurors will giue or promise money to another of his fellowes to giue his verdit for the pl. or def this is vnlawfull maintenance though he doth wage him to giue his verdit according to truth and right of the cause in issue Maintenance by speaking of words 19 If a man of great authoritie in a country will in the presence of a Iurie 22. H. 6. 5. 13. H. 4. 19. and the standers by at the tryall of an issue say openly that he will spend mony in the cause in question in the behalfe of the pl. or the def or that hee will giue money to labour the Iury or wil speake other great or high words in fauor of one of the parties this is vnlawful maintenāce in him though he do spend no mony in that cause nor doth labor the Iury therin for it may be that whē the Iury do by his words know his meaning they dare not in respect of his authoritie or greatnesse in that coūtie giue their verdit otherwise thā he would haue them None shall sit with the Iust of Assise on the bench And for the preuention of that kind of maintenance by a stat made An. 20. R. 2. it was ordained That no Lord or other of the country great or small St. 20. R. 2. 13. shall sit vpon the bench with the Iust of Assise in their Sessions in any of the Shires of England vpon paine of a great forfeiture to the King neither the Iustices shall suffer the contrarie to bée done Maintenance in comming to the barre with one of the parties And in like sort if a man of great authoritie in the Countie where an Issue is to be tried hauing nothing to doe in that cause doth come to the barre with the plaintife or defendant 22. H. 6. 6. that is one of the parties to an Issue that is then to bée tryed and standeth by him this is an vnlawfull maintenance in him though hée neither doth nor yet speaketh any thing in the matter for his presence and companie with the one partie doth shew to the Iurie his particular affection to the same partie and doth ofttimes induce them to fauour as much as labour and persuasion by words could doe And though the Iurie doe not respect him but giue their verdict for the other partie to that suit according to their euidence and the truth of the cause in question yet he hath done what in him lyeth to the contrarie 21. H. 6. 15. 22. H. 6. 5. 28. H. 6. 7. Dyer fo 95. 20 And so it is if two be in suit and do ioyne in issue Maintenance by giuing of money to labour a Iurie and the Master of one of the parties to that issue or any other will deliuer money of his owne to a stranger to labour the Iurie impanelled to try that issue to giue their verdit for his said seruant or friend this is maintenance vnlawfull in the Master or other though the partie to whom the money was giuen did neuer deliuer it to the Iurie nor did not labour vnto them in such sort as hée was directed or though the Iurie did giue their verdict against his said seruant for when the Master had deliuered the money to the stranger and told him to what purpose he should vse it he had done as much as he could do in that suit to hinder the course of iustice though his direction tooke no successe according to his desire And also it is vnlawfull maintenance if one giue money to a man that is impanelled of a Iurie to giue his verdict on the one side though that partie impanelled doth not appeare or do appeare and is drawne out by challenge or otherwise 22. H. 6. 6. And it is maintenance vnlawfull if one do threaten to kill or beat a Iuror if he do not giue his verdict for the one part to that issue which hee doth name though the same Iuror do otherwise 28. H. 6. 6. 21 If a Iurie do come to a mans house What is maintenance in a witnesse and what not and desire him to informe them of the truth of a matter whereof they do doubt and he doth informe them therof this is iustifiable But if one do come to a Iurie or of himselfe do labour to informe them of the truth of a cause in question this is maintenance vnlawfull and therefore punishable And so it is if the Court be informed by the plaintife or defendant when an issue is to be tryed that there is a man at the bar or in that place who doth know the truth of the matter in issue and doth desire that the same man may be examined by the Court to testifie the truth of that cause in question to the Iurie and the Court doth cause him to be called to testifie his knowledge therein and he at the commaundement of the Court deliuereth that which he doth know in that matter this is maintenance iustifiable But if the same partie will come to the barre of his owne head and testifie for the plaintife or the defendant this is vnlawfull maintenance and hée may be punished therefore 22. H. 6. 6. 22 If one man do labour to indict another by force whereof he is indicted Maintenance by procuring of an indictment in this case hee that is indicted may haue a writ of Maintenance against the procurer of that indictment and yet this is no quarrell but it is a taking of a part St. 1. E. 3. 14. and so prohibited by the stat of anno 1. E. 3. and it is in the nature of an action betwéene the King and the partie indicted and the foresaid statute is generall that it shall not be lawfull to any person great or smal to maintain quarels or to take parts to the let or disturbance of the Common law What is maintenance in a mainpernor 23 If a man be arrested indicted or sued 34. H. 6. 25. 14. H. 6. 6. 18. E. 4. 12. so that he is compelled to become bound with mainpernors for his apparance the mainpernor may come into the Court and sée the apparance of the same partie recorded and iustifie the
is an oppression and for the redresse thereof the same tenant may pursue against his lord a Writ of Ne iniuste vexes grounded vpon a braunch of the statute of Magna Charta St. 9. H. 3. 10 thereby commaunding the Lord that he shall not oppresse nor vniustly vexe his tenant for more rent or seruices then hée ought to pay or doe 12. E. 4. 7. 28. Ass p. 33 5. Ed. 4. 82. Or otherwise the tenant may auoid this surplusage of rent in an Assise Writ of Rescous or Cessauit brought against him by his lord but in a Repleuin he cannot auoid his lord of this rent newly incroched séeing the same lord hath had seisin thereof and so it is if the lord of a Manor 40. Ed. 3. 44. 49. Ed. 3. 22. 39. E. 3. 6. which is auncient demesne will encroch vpon his tenants and distraine them or any of them that hold their lands by Charter fréely to doe other seruices or customes to the same lord then they ought to doe or that their auncestors were accustomed to do this is an oppression of the same tenants and for the redresse thereof all the tenants of the said auncient demesne Manor may haue against their said lord the kings writ of Monstrauerunt directed to the said lord commaunding him thereby that hée shall not require nor cause to bée required of his said tenants more seruices or customes then they ought to doe Fitz. Na. Br. 14. or had wont to doe And if after the said writ directed he will distraine the goods of them or any of them againe to doe more seruices then they ought to doe Then the same tenants or such or so many of them as bee so distrained may procure an attachment against their said lord Fitz. Na. Br. 15. returnable in the K. Bench or common place for this oppression and contempt wherin euery of the same tenants shall recouer his dammages seuerally according to his losse 8 Euery excessiue amerciament which one person doth take of another Oppression by excessiue amerciament is also to be accounted an oppression of the party so amerced for by the Statutes of Magna Charta West 1. St. 9. H. 3. 14 3. Ed. 1 6. it is ordained That no Citie Borough Towne or man shall be amerced but for a reasonable cause and according to the quantitie of his offence and euery fréeman shall bée amerced sauing his fréehold a marchant sauing his marchandize and euery other mans villaine besides the kings sauing his villaine tenure and the same amerciaments shall bee assessed by the oath of honest and lawfull men of the same vicenage So that if one person doe take a much greater amerciament of another then the quantitie of his offence doth require in a Court Baron or other Court which is not of record or doe take that amerciament of his owne authoritie without being before assessed by others vpon their oathes and so maketh himselfe iudge in his owne cause this is an oppression of the party amerced for the redresse whereof the party grieued may procure to be directed to the lord of the said Manor or to his Baylife a Writ of Moderata misericordia which was founded vpon the said stat of Magna Charta commaunding them thereby Fitz. Na. Br. 75. that they shall take a moderat and indifferent amerciament of the same person according to the quantity of his offence And if the lord or his baylife will not then cease to distraine for the said excessiue amerciament the partie so oppressed may haue against the offendor an attachment directed to the Shirife of that Countie where the same Distresse is taken to attach him to appeare in the kings Court and to answere his said offence Oppression by committing of wast 9 The Wast and Estrepement which one person hauing a particular estate in another persons land doth make or commit to the disheritance of him in the reuersion or remainder of the same land without his consent may also be accounted an oppression of him in whom the said inheritance is for when one person doth lease or otherwise conuey his land to another for the terme of life liues or yeares he doth in effect but lend the same land to the sayd particular tenant for the terme betwéene them agréed vpon expecting to haue the same againe at the end of the terme in as good plight and in such sort as it was when he first did deliuer and lend it And therefore if the particular tenant during the continuance of his estate doe commit any wast in the same land he cannot deliuer it againe at the end of his terme in such plight and sort as at the first he did receiue and borrow it but by the wast the perpetuall profit of the land is impaired and therefore of so much in value hée in the reuersion or remainder is disherited And for the preuention thereof by the statute of Marlebridge it was ordained St. 52. H. 3. 24. That Farmors during their termes shall not make wast sale or exile of houses woods or men nor of any thing belonging to the Tenements which they haue in farme without they haue speciall graunt in writing making mention of a couenant that they may doe it And to the intent that condigne punishment might bée prouided and inflicted vpon such as should be transgressors and oppressors in these cases of Wast by the statute of Gloucester it was enacted St. 6. Ed. 1. 5 That a man shall haue an action of Wast in the Chauncerie against him which is tenant by the courtesie of England The tenants forf which cōmitteth wast or otherwise tenant for terme of life or for terme of yeares or against a woman which holdeth in Dower and he which shall bée attainted of Wast shall forfeit the thing wasted and besides shall pay treble so much as the Wast shall be taxed and after by the statute of Westminster the second the same was in a sort confirmed St. 13. E. 1. 14 and the said action of Wast was againe giuen against the foresaid tenants by the courtesie in dower for terme of life or yeares and also ordained to extend against Gardens And by the same statute the proces to be vsed in the said action of Wast was assigned to be Summons Attachment and Distresse and if the party defendant doe not appeare at the distresse then a writ shall be awarded to the Shirife to inquire of the wast by the oathes of twelue men And because diuers persons did let their lands to others sometime for terme of life or anothers life and sometime for terme of yeares and after the said tenants did graunt their estates which they had in the same Lands and Tenements to others to the intent that they in the reuersion viz. their lessors their heires or assignées should not take knowledge of their names and yet the first lessees did continually occupie the said Lands and tooke the profites to
persons vnlawfully assembled Then euery person which so being able and required doth willingly and obstinatly refuse so to doe shal suffer imprisonment for one yeare without baile or mainprise And as in al the cases aforesaid euery able person is bound vpon request to assist the Iustices shirifes other the Kings officers to pursue apprehend arrest and imprison Manquellors robbers felons or other disturbers of the peace and so to do his whole endeuor to be a conseruator of the peace of the Realme Euerie person must assist to execute the K. Writ In like sort is euery able person bound by the common law and by the Stat. of Westm̄ 1. Westm̄ 2. to be attendant vpon the Shirife St. 3. E. 1. 17. S. 13. E. 1. 39. or vndershirife in the execution of the kings writs and by that meanes to be a supporter of the justice of the Realme These offēces punishable in the Starre Chamber 86 Menaces assaults batteries imprisonments and maihems committed by some persons to some persons at some times in some places in some manner forme sort and with some circumstances besides the penalties aforesaid inflicted vpon the offendors therein are also punishable in the Kings high Court of the Starre chamber as other offences hereafter mentioned be as it doth more at large appeare in Oppressions 35. ¶ Of Riots Routs vnlawful and rebellious Assemblies RIots Routs The enormitie of Riots vnlawfull Rebellious assemblies haue bin so many times pernitious fatal enemies to this kingdom the peace tranquillity thereof haue so often shaken the foundation and put in hazard the very forme and state of gouernment of the same that our lawmakers haue béen enforced to deuise from age to age one law vpon an other one stat after another for the repressing punishing of them haue endeuoured by all their wits to snib the sprouts quench the very first sparkes of them as euery man may easily perceiue there was cause thereof who will looke back and call to his remembrance what that small Riot begun at Dartmouth in Kent in the raigne of King Richard the second betwéen the collector of a subsidy and a Tyler and his wife about the payment of one poore great did come vnto which being not repressed in time did grow to so great a rebelliō that after it put in hazard the life of the K. the burning of the Citie of London the ouerthrow of the whole Nobility gentlemen and all the learned of the land and the subuersion of this goodly Monarchy and forme of gouernment Or if they will call to mind the small Riot or quarrell begun in the raigne of King Henry the sixt between a Yeoman of the gard and a seruingman of Richard Neuils Earle of warwick which so farre increased for want of restraint that it was the roote of many wofull tragedies and a meane to bring to vntimely death first Richard Plantagenet Duke of Yorke proclaymed successor to the Crowne and the chiefe pillar of the house of Yorke and after him King Henry the sixt and Prince Edward his sonne the heires of the house of Lancaster and to ruinate with the one or the other of them most of the Péeres great men and gentlemen of the realme besides many thowsands of the common people West 1. 3 E. 1. 32. Sta. 7. Ed. 1. St. 13. E. 1. 6. And therefore King Edward the first did well ordaine That no Shirifes shall suffer Barretors or maintainers of quarrels in their Counties And that to all parliaments Treatises and other assemblies each man shall come peaceably without any armor and that euery man shall haue armor in his house according to his ability to kéepe the peace And King Edward the third prouided Statutes ordained to preuent forces or Riots that no man shall come before the Iustices St. 2. E. 3. 3. St. 5. E. 3. 14. nor goe or ride armed And that suspected lewd and riotous persons shall be arrested and safely kept vntill they be deliuered by the Iustices of Gaole deliuery St. 34. E. 1. 3. Sta. 2. R. 2. 6. And that Iustices of peace shall restraine offendors riotors and all other Barretors and pursue take and chasten them according to their Trespas and offence Sta. 5. R. 2. 6. St. 15. R. 2. 2 St. 7. R. 2. 13 King Richard the second did prohibit Riots Routs and forcible entries into lands that were made in diuers counties and partes of the Realme And that none from thenceforth should make any Riot or Rumor And that no man shall ride armed 20. Rich. 2. 1 nor vse Launcegaies And that no laborer seruant in husbandry or Artificer St. 12. R. 2. 6 or victualer shall weare any buckler sword or dagger And that all the Kings officers shall suppresse and imprison such as make any Riots Routs St. 17. R. 2. 8. or vnlawful assemblies against the peace King Henry the fourth enacted That the Iustices of peace the Shirife shall arrest those which commit any Riot Rout or vnlawfull assembly shall enquire of them and record their offences St. 13. H. 4. 7 King Henry the fift assigned commissioners to enquire of the same Iustices Shirifes defaults in that behalfe St. 2. H. 5. 8. and also limited what punishment offendors attainted of Riot should sustaine King Henry the seauenth ordained Sta. 19. H. 7. that such persons as were returned to enquire of Riots should haue sufficient fréehold or copihold land within the same Shire And that no maintenance should hinder their Inquisition And in the Raigne of Quéene Mary Sta. 1. M. 12. there was a necessary Statute established to restrain and punish vnlawfull and rebellious assemblies raised by a multitude of vnruly persons to commit certaine violent forcible and Riotous acts 2 As the said Lawes Statutes were deuised in seueral ages by the wisedom of the Realme to enquire of and restraine Riots Routs vnlawfull and rebellious assemblies and to checke violences and forces before they should grow to a head So haue our prouident forefathers erected the most honorable Court of Starre chamber The Court of Starre chambers authoritie to punish Riots c. to examine and punish those and other offences when they breake out to extremities viz. to great and haynous Riots or such like enormities thereby to kéepe euery person in awe and so the whole Realme in peace As appeareth by the Statute of Anno 3. H. 7. whereby it is inacted That the Chauncellour and Treasorer of England for the time being and the President of the Kings Councell St. 3. H. 7. 1. Stat. 21. H. 8. 22. and the kéeper of the Kings priuy seale or two of them calling to them a Bishop and a Temporall Lord of the Kings most honorable priuy Councell the two chiefe Iustices of the K. Bench and common place for the time being or other two Iust in their absence vpon bill or information put to
take into his or their hands or possessions all such copie customarie holds so holden of thē or any of thē immediatly to retain the same during only the life of such offēdor or offendors in such maner as he or they should haue had the rents or seruices of such copy or customary hold in case such person or persons so refusing had not refused A farmer required refuseth to serue 39 All euery farmer being a yeoman husbandman artificer or labourer 1. M. 12. beeing of the age of xviij yeares or more vnder the age of lx years not sick impotent lame maihemed nor hauing any other reasonable excuse or cause to the contrary being required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commissiō or letters c. they declaring their said authoritie or being required by their said Landlord or Landlords for the time being to whom the rents of such farmes shal be then rising growing or comming to serue the king for any the causes aboue rehearsed and refuse so to doe shall during only the life of such farmer or farmers so refusing forfeit and loose to such Landlord and Landlords as should haue had the rents of such farmer during the life liues of such person persons so refusing all their said farmes And it shal be lawfull to euery such Landlord c. their heires and assignes to whom the rents of such farmes should haue bin due during the life of such person or persons so refusing in case he or they had not refused to enter take into his or their hands or possessiō al such farms to retain the same only during the life of euery such offēdor or offendors But after the death expiration or determinatiō of the interest or terme of yeares of euery such copyholder customary holder or farmer as so shal offēd forfeit any of the said copi-holds customary holds or farmes as is aforesaid thē euery such person as should or ought to haue had the copy holds customary holds or farmes after or by the death expiration or determination of the interest or terme of years of such copie-holder customarie holder or farmer in case such copie-holder customarie holder or farmer had not so offended ne forfeited shall and may haue the same copie-hold customarie holds and farmes by entrie action admission or otherwise in like manner forme and condition and by such meanes as they and euery of them should might or ought to haue had if no such forfeiture or offence had bin had done or committed 40 If any person shal be spoken vnto moued 1. M. 12. or stirred to make any cōmotion Disclosing a commotion when one is moued insurrection or vnlawfull assembly for any of the intents aboue mētioned and doe not within 24. houres next after he shal be spoken vnto moued or stirred vnlesse he haue good and reasonable cause of excuse declare the same vnto one Iustice of the peace or Sherife of the said countie or to the Mayor Sherifes Bailifes or other head officers of any citie or town corporat where such commotion c. shall be had he shall suffer imprisonment by the space of thrée moneths without baile or mainprise vnlesse he shall be discharged by 3. Iustices of peace whereof one to bee of the Quorum of the same shire where the offence shall be committed 1. M 12. 41 If any person béeing aboue the age of eightéene yeares An able person required refuseth to serue and vnder the age of thréescore beeing able to serue and not sicke lame or impotent shall be required by any Iustice of peace or any Sherife of any Countie where any such assembly shall be or by any Mayor Bailife or other head Officer of any citie borough or towne corporat or by any other by the commandement of any such Iustice Sherife Maior c. to goe with him or them to suppresse the persons vnlawfully assembled in manner and forme aforesaid then euery person which so béeing able and required doth willingly and obstinately refuse so to doe shall suffer imprisonment for one whole yeare without baile or mainprise 1. M. 12. 42 If the King shall by his Letters patents make any Lieutenant in any Countie or Counties of this Realme Attendance vpon a lieutenant for the suppressing of any commotion rebellion or vnlawfull assemblie then as well all Iustices of peace and the Sherife and Sherifes of the same as all Maiors Baylifes and other head officers and all inhabitants and subiects of any Countie Citie Borough or towne corporat within euery such Countie shall vpon declaration of the said Letters patents and request made bee bound to giue attendance vpon the same Lieutenant to suppresse any commotion rebellion or vnlawfull assemblie vnlesse hee so required haue any reasonable excuse for his not attendance vpon paine of imprisonment for one whole yeare 1. M. 12. 43 The order and forme of the Proclamation that shall be made by the authoritie of this Act shal be as hereafter followeth The forme of the Proclamation or with the like order and words in effect viz. The Iustices or other persons authorized by this Act to make the said Proclamation shall make or cause to be made an Oyes and after that shall openly pronounce or cause to be pronounced these wordes or to the like effect The King our Soueraigne Lord chargeth and commandeth al persons being assembled immediately to disperse themselues and peaceably to depart to their habitations or their lawfull businesse vpon the paine contained in the act lately made against vnlawfull and rebellious assemblies And God saue the King 1. M. 12. 44 If any person or persons doe or shal molest let hinder Hinderance of the Proclamation or hurt any person or persons that shall proclaime or go to proclaime according to the proclamation and order aforesaid whereby such proclamation shal not be made then euery such person so molesting or hurting c. and hauing knowledge of his message shall incurre such daunger and suffer such paines and forfeitures the persons assembled to whom the proclamation should haue beene made should by this Act incurre for not obeying the Proclamation if it had béene made or for doing after the Proclamation of any the things before expressed And also all such persons beeing assembled to the number aforesaid to attempt or doe any the things aforesaid to whom Proclamation should or ought to haue beene made if the same had not beene let shall likewise in case they doe after put in vre and doe any the things aforesaid hauing any wayes knowledge of the let so made or by any meanes procuring the same let incurre like danger and suffer like paines and forfeitures aforesaid in euery their degrees as though the proclamation had beene made any clause article c. in this Act c. notwithstanding Other mens right saued 45 All
21. H. 7. 39. As In what cases any pâ—rson may deâ—end himselfe and his by force if theeues or robbers do come to a mans house to rob or murther him he may defend his house by force and if he or his seruants do kill any of them they shall receiue no hurt thereby And if a man being in his house doe heare that another will come to his house to beat him he may lawfully assemble his neighbors and friends to assist and aid him in the defence of his person for his house is his castle and place of protection defence where he must dwell But if a man be threatened â—hat if he come to such a Market or Fayre or to such a place that then he shall be beaten in this case he may not assemble his neighbours and friends to go thither in safegard of his person for there is no necessitie that he should go thither seeing it would rather be a meane to seeke a quarrell then to eschew it but in that case he may take his remedy by surety of peace 16. Ed. 4. 17. 9. E. 4. 28. 19. H. 6. 31. 6. H. 7. 1. And if there be an atteÌ„pt made to maihem wound or beat a man his wife father mother or any of his children within age or to disseise him of his land or to dispossesse him of his goods or to disturbe him of his high way or to turne an ancient watercourse from his mill he may lawfully vse force to resist it 34 As the law hath prouided by the before rehearsed statute of 15. R. 2. St. 15. R. 2. 2. that wheÌ„ any forcible entry shal be made into any benefices or offices of the church a Iustice of peace shall take the power of the county and commit the offendors to the gaole So hath it further deuised that if there be debate betwéene two persons for one church and one of them doth enter into the church with a great power of lay men and holdeth out the other by force and armes then he which is holden out The writ of Vi laica remouenda to remoue force shall haue a writ of Vi laica remouenda directed to the Shirife commaunding him that he shal remoue the power which is within the church and the shirife shal be further commaunded that if he doe find any that doe resist he shall take with him the power of the county and attach the bodies of all the resisters and commit them to prison so that he may haue their bodies before the King at a certaine day to answer for their contempt Fitz. Na. B. 55. But by this writ the Shirife ought not to remoue the Incumbent who is in possession of the church be he in possession by right or wrong but only to remoue the force and to suffer the Incumbent to inioy his possession for if he do remoue the Incumbent the same Incumbent shall haue a writ to the Shirife to restore him to it againe Where force shal be remoued for the K. incumbent where not 35 If the King do bring a Quare impedit against the disturber and the Incumbent and the Kings title is found for him Br. force 20 whereupon his clarke is instituted by writ and after the first Incumbent doth enter by force great number of people and doth take the profits the Kings Incumbent shall not haue the Kings writ to the Shirife to remoue the force for that when the iudgemeÌ„t giuen by the court is executed the court hath no more power to deale in that cause But if the defendant had disturbed the Bishop to admit the Kings Incumbent then he should haue had such a writ ⧠Forgerie 1 HAuing vndertaken to write of the great and generall maladies of the Realme and the chiefe impediments of the iustice and peace of the kingdome I shall not farre digresse from my theame by treating of Forgerie Periury Maintenance Deceit Extortion and Oppression wherein though a man be not assaulted by the rapier and dagger pike-staffe or bilbow-blade as he is in a fray forcible entrie or riot yet a forged déed that conueyeth his land from him a false othe which depriueth him of his lease or vnlawfull mantenance that wresteth his credit or goods from him do longer disturbe the peace of his mind stick in his stomacke and infixeth a déeper and more durable impression of sorrow into his heart than a boxe on the eare a dust in the necke or a blow with a cudgell giuen on the sodaine will doe For the griefe of these later stripes is short and doe weare out of mans mind by little and little as his choller ceaseth and his hot bloud cooleth but the discontent and the wants which he receiueth of the former blowes doe continue with him and yéeld him most dislike when he is most patient and best aduised And therefore the wisedome of this Realme hath from age to age taken great care by lawes and statutes to represse them and to inflict vpon the offendors in euerie of them penalties correspondent to their deserts Our lawes doe chastise those that breake the peace by frayes assaults batteries riots or routs with imprisonment of their bodies vntill their hot blouds be cooled and their distemperat humors be qualified but they doe impose sharper and more durable punishments vpon such as doe forge déeds commit or procure periurie Forgerie periurie maintenance do ten 5 to the breach of the peace or bee maintainers of other mens suits or quarels accounting these last offences to tend more and for a longer time to the breach or blemish of the peace or hinderance of the iustice of the Realme than the former doe As hee that committeth forgerie in some cases shall bée set vpon the pillorie loose his eares haue his nostrels slit and pay to the partie grieued his double costs and dammages And in some other cases shall be hanged as a felon He that committeth periurie shall in some cases be one yeare imprisoned be set vpon the pillorie and neuer after be allowed as a witnesse And hee that maintaineth other mens suites shall in some cases be thrée yeres imprisoned and further punished at the kings pleasure And in some other cases sustaine other disgraces And therefore the preamble of the statute of anno 1. St. 1. H. 5. 3. H. 5. doth truely informe vs that forged déeds do trouble and change the lands of good people intending to be in peace And the statute of anno 32. St. 32. H. 8. 9 H. 8. doth teach vs that the suborning of witnesse for to maintain any matter or cause is to the disturbaÌ„ce or hinderance of iustice The enormity of Forgerie 2 The forging of false sealed Déeds Euidences or Writings or of Court Rols or of the will of any person or of any Obligation Bill obligatorie Release or other discharge or the pronouncing publishing or giuing in euidence of the same wherby any person shal be molested troubled charged
in returning of those Iurors lest by their partialitie Truth may be concealed Periurie committed and so iustice subuerted Fitz. Challenge 113. 7. Ed. 4. 56. 33. Ass p. 12 12. Ass pl. 1. 26. Ass p. 56 12. Ass p. 36. 44. Ass p. 18 Plo. Com. fol. 425. 29. Ass p. 2. 28. Ass p. 22 7. H. 4. 10. Fitz. Challeng 94. 99. 8. H. 5. 5. 20. H. 6. 39. 11. H. 4. 26. 38. H. 6. 6. 24. Edw. 37. And for that cause the prouidence of the Lawe doth not allow that Shiriffe Vndershiriffe Bailiffe of Franchise Coroner Causes of suspition in Shiriffes in impannelling of Iuries or other person as indifferent or méete to impannell a Iurie who is a partie to the sute or matter in question or who doth maintaine either of the parties plaintife or defendant in the same sute or is of councell with either of them in that sute then in issue Nor who is within the distresse receiueth the yéerely fée or weareth the liuerie or robe of any of the parties to that sute Nor who is of kinred by nature or of affinitie by marriage to any of the parties to that sute Nor who doth returne that Enquest or any of the Iurors therein at the denomination or by the procurement of any of the parties to the same sute or of any other person whatsoeuer Nor who doth impannell that Enquest or any of the Iurors therein for the fauour which he doth beare more to the one partie than to the other Nor who was an Arbitrator in that cause in question and to be in triall and did treate and conferre of the same Nor who is then in sute of lawe with either of the parties to this question or triall for any matter of trespasse malice or euill will Nor who did baptize the childe of any of the parties to this sute and triall 4. Ed. 4. 11. or any of the parties to the same sute did baptize his childe All which the Lawe doth suspect as causes of fauor and affection in the Shiriffe his Vndershiriffe c. and to be moouers fauourers or consentors to Periurie and therefore vpon challenge of the Array so being impannelled and the same prooued the whole Array shal be quashed 4 As the Lawe hath great care that Shiriffes Vndershiriffes Bayliffes of Liberties Coroners and all others hauing authoritie to returne enquests should therein be voide of all partialitie or presumption or cause thereof to the intent that a gappe should not be left open by their meanes to those that be willing to enter into corruption of conscience and so to commit Periurie In like sort hath shée vigilantly foreséene that those Iurors which be returned by the said Shirifes c. may be so sifted tried and examined that they may be found in all respects Probi legales homines Euery Iuror must be an honest and lawfull man viz. honest vpright 33. H. 6. 55. 26. Ass p. 28 14 H. 4. 19. 9. Ed. 4. 16. 11. H. 4. 4. and lawfull men in the eie and iudgement of the Lawe and that none of them be an Alien a villaine or outlawe an excommunicate person and thereby not legalis homo nor conuicted in a Writ of Conspiracie or an Attaint and by that meanes not probus homo and so to be challenged in euery cause and by euery person and further that they may be prooued to bee men of indifferencie and voide of all partialitie and such as will wholy respect the trueth of the cause in question and in their verdict nothing regarde any that is partie thereunto And therefore if there be any lawfull cause to feare particular fauour and affection in any of the Iurors and that hée will rather incline to Periurie than giue eare to the trueth of the cause the Lawe doth allow to the partie grieued Challenges of Iurors suspected or suspecting the same seuerall Challenges to the same Iuror and thereby to haue him drawne and remooued out of that Enquest A witnesse 5 As if a man be a witnes in a cause in question he can not be a Iuror in the same cause for the witnes doth testifie vpon his certaine knowledge 23. Ass p. 11 12. Ass p. 12 11. Ass p. 19 and the Iurors of an Enquest must giue their verdict according to their euidence And besides he that produceth a witnesse expecteth at his hand a fauourable deliuery of his euidence or otherwise he would not produce him which fauor euery Iuror must be wholy voide of if he will auoide Periurie Periurie suspected by deliuering his verdict before hand 6 If a Iuror after he is returned and before he is sworne 20. H. 6. 39. 8. Ed. 3. 69. will say that he will passe for the plaintife or defendant and doth speake it for the fauour which he beareth to the one partie or the hatred which he hath to the other and not in respect of his owne knowledge of the trueth of the cause the Law doth feare periurie in him and therefore shée will remooue him out of that enquest if he be challenged therefore Periury suspected by lying at the charge of one of the parties 7 If one that is impannelled of a Iurie doth goe to the Assises with one of the parties to the issue and doth eate and drinke with him at his charges 8. Ed. 3. 69 13. H. 4. 13. Fitz. Challenge 177. the Law doth suspect the same Iuror of partialitie and so of inclination to Periurie in recompence of that kindnes receiued and therefore she will remooue him out of that Enquest if he be challenged therefore 20. H. 6. 39. 9. Ed. 4. 46. 7. H. 7. 18. 8 If two men be in question for any cause Periurie suspectcted by an Arbitrator in the cause in question and then do refer the matter in debate to be heard ended by two Arbitrators whereof the one doth make choice of one Arbitrator and the other of an other which Arbitrators doe méete together and confer of the cause but do not agrée whereupon the party grieued doth prosecute the said suit to an issue and one of the same Arbitrators is returned of that Enquest the law doth suspect the same Iuror of partialitie and so of inclination to Periurie and therfore she will remoue him out of that Enquest if he be challenged therefore for when he was chosen by one of the parties alone this election maketh him in a sort of councel with him that did choose him and so fauorable vnto him but if he had bin chosen by the consent of both the parties together 3 H. 6. 25. the law would haue made other construction of him and adiudged him indifferent 34. Ass p. 6. 9 If two men do combine themselues by Oath bond couenant or faithfull aduised promise that one of them will take an others part be his friend and assist him in all causes whatsoeuer And after there is a sute commenced betwéene one
verdit or misdemeanors shall happen to be made shall haue full power to compell such Iurors and euery of them vpon paine of imprisonment to be bound by Recognisance in a certaine summe of money by their discretion to be limited that the same Iurors and euery of them shall personally appeare at a certaine day by the same Iusticiar Steward or other officer to be limited before the Lord President and other of the Councell aforesaid for the time being then and there to abide and stand to such direction and order as the same councell shall make ordaine and decree of in and vpon the same And the same councell shall thereupon haue authoritie by examination or otherwise to heare and determine all and euery such cause and shall haue like authoritie to commit euery of the same Iurors to prison or other punishment as shal be thought meet by the discretion of the said counsel or otherwise assesse or taxe euery such Iuror to his fine and ransome by the same discretion to be paied and leuied of their lands goods and cattels to the vse of the King Periurie committed by witnesses 20 Hauing written of the restraint and punishment of periurie in Iurors consisting of twelue persons at the least impannelled or sworn to deliuer their verdict according to their euidēce I am now to expresse what punishments the law doth inflictt vpon such which doe come one by one as deponents or witnesses to testifie the truth and to informe the Iudge or the Iurie of the veritie of the matter in issue or question according to their knowledge whereof euery man by himselfe may be called singularis testis though there be more witnesses sworne in that cause And séeing that iustice cannot be executed without the knowledge of the truth of the cause in question that truth is in most cases only to be deliuered by the othes and testimonies of such parties as were witnesses priuie or best acquainted with the matter in variance Therefore first it is to be obserued that the wisdom of the law hath thought it necessarie to prouide that such witnesses may be compelled vnder a great paine to appear in court and testifie their knowledge concerning such matter in question as by the Statute made Anno 5. A witnes vpon proces serued shall appeare El. it was ordained St. 5. El. 9. St. 29. El. 5. That if any person vpon whom any proces out of any of the courts of Record within this Realme or Wales shal be serued to testifie or depose concerning any matter depending in any of the same courts and hauing tendered to him according to his countenance or calling such reasonable sums of money for his costs and charges as hauing regard to the distance of the places is necessarie to be allowed in the behalfe doe not appeare according to the tenor of the said Proces hauing not a lawfull and reasonable let to the contrarie then the partie making default shall forfeit for euery such offence x. l and shall yéeld such further recompence to the partie grieued as by the discretion of the Iudge of the court out of the which the said proces shall be awarded according to the losse and hindrance that the partie which procured the said proces shall sustaine by reason of the non appearance of the said witnesse the said seuerall summes to be recouered by the partie so grieued against the offendor by A.I.B.P. c. in any of the K. courts of Record wherein no W.E. or P. c. 21 There were seuerall statutes made during the raignes of king H. 6. K. H. 7. and K. H. 8. against Periurie and the procurers and committers of periurie and lastly one was ordained Anno 32. H. 8. St. 32. H. 8. 9 against such as should suborne witnesses to the hindrance of Iustice and the procurement of periurie Sithence the making whereof for that the penaltie therein is small towards the offendors in that behalfe the said offence of subornation and sinister procurement of false witnesses did neuerthelesse greatly increase and by reason of the wilfull Periurie committed by the same suborned witnesses diuers persons did sustaine disherison and great impouerishment as well of their lands and tenements as of their goods and cattels The penaltie for procuring of wilfull periury in witnesses for the redresse and more sharpe punishment whereof St. 5. El. 9. 29. El. 5. by a Statute made Anno 5. El. it was enacted That all and euery person and persons which shall vnlawfully and corruptly procure any witnes or witnesses by Letters Rewards Promises or by any other sinister and vnlawfull labour or meanes whatsoeuer to commit any wilfull and corrupt Periurie in any matter or cause whatsoeuer depending in suit and variance by any Writ Action Bill Complaint or Information in any wise concerning any lands tenements or hereditaments or any goods cattels debts or dammages in any of the courts of the Chauncerie Starre chamber White hall or in any other of the Kings Courts of Record or in any Léet view of Franke pledge or Law day Auncient demesne Court Court Hundred Court Baron or in the Court or Courts of the Stannerie in the countie of Deuon and Cornewall Or shall likewise vnlawfully and corruptly procure or suborne any witnesse or witnesses which shall bée sworne to testifie in perpetuam rei memoriam Then euery such offendor or offendors shall for his hers or their said offence béeing thereof lawfully conuicted or attainted forfeit fourtie pounds to the King and the partie grieued hindered or molested by reason of any of the offences aforesaid that will sue for the same by A. B. P. or I. in any of the Kings Courts of Record wherein no W. E. P. or I. shall bée allowed And if it happen any such offendor or offendors béeing so conuicted or attainted as is aforesaid not to haue any goods or cattels Lands or Tenements to the value of fourtie pounds then euery such person or persons so conuicted or attainted of any of the offences aforesaid shall suffer imprisonment one halfe yeare without Baile or Maineprise and stand vpon the Pillorie one whole houre in some Market Towne neere or next adioyning to the place where the offence was committed in open market there And no person béeing so conuicted or attainted shall bée from thenceforth receiued as a witnesse to bée deposed in any court of Record within any of the Kings dominions of England Wales or the Marches of the same vntill the Iudgement giuen against him or them shall bée reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued shall recouer his or their dammages against all and euery such person and persons as did procure the said iudgement so reuersed to bee first giuen against them or any of them by action to be sued vpon his or their case according to the course of the common Law St. 5. El. 9. 22 If any person or persons either by the subornation
be adiudged to the pillory the third time he shal be imprisoned make fine the fourth time he shall forsweare the towne And in this manner shal it be done of all that offeÌ„d in like case as of cookes that séeth flesh or fish any waies that is not holesome for mans body or after that they haue kept it so long that it looseth the naturall holesomenesse then séeth it againe and sell it And in like sort St. 39. El. 10 by one other statute made An. 39. El. it was enacted That if any alien or stranger born or any denizen or naturall born subiect of this realme shal bring into any hauen port créeke or town of this realme any salt fish or salt herrings which shal not be good swéet seasonable méet for maÌ„s meat shal offer the same to be sold and shall be warned by any officer of such Port c. where the same shal be offered to be sold that the same be not seasonable nor méet for mans meat Then if he or they shall after that offer any of the said vnseasonable fish to be sold to any person within this Realme or being an alien borne and no denizen shall not depart with the same from the said Hauen Port or Towne so soone as conueniencie will serue Then all and euery person owners therof shall forfeit to the Queen all the said vnseasonable fish vnméet for mans meat as is aforesaid And by a statute made Anno 4. Ed. 3. it was established St. 4. E. 3. 12 That assay shall be made of wines twice euery yeare once at Easter and another time at Michaelmas and more oft if néed be by the lords of the Townes and their Baylifes and also by the Mayors and Baylifes of the same townes and all wines that be found corrupt shal be powred out and the vessels broken ⧠Extortion Exaction 1 EXtortion is a wrong done by an Officer What is Extortion as Ordinarie Archdeacon Officiall Maior Bailife Shirife Escheator Coroner Vndershirife Auditor Receiuer Clerke or other Officer or by any other by colour of an office in taking of an excessiue reward or fée and more then the law doth allow him for execution of his said office which offence in some degrées is worse then the priuy picking of a mans purse in secret and the transgressor in a sort may be compared to the Fréebooter which with drawne sword and with menacing words assaulteth the trauailer by the way who casteth down his purse to him for feare of further hurt And so is the poore sutor many times inforced to doe to the Officer when of necessitie he must vse his helpe It is a thing most odious and offensiue to the iustice and peace of the Realme and to all the members thereof that those men who be specially made choice of and principally selected to serue their prince and countrey and to further the execution of iustice in their offices and places and be sufficiently rewarded with conuenient stipends for their paines therein should in contempt of the law assesse their owne fées in a sort put their hands in other mens purses and there take what they will and thereby doe wrong vnder the colour and shadow of iustice Exaction is a wrong done by an officer What is Exaction or by one pretending to haue authoritie in demaunding and taking reward or fée for that matter cause or thing which the law doth allow no fée at all And as our common statute lawes haue declared which offences or acts they doe condemne and adiudge as Extortions and Exactions so haue they prescribed in most cases seuerall penalties to be inflicted vpon the seuerall transgressors therein leauing the residue to be punished at the kings pleasure or by the discretion of such of his Iudges Iustices or others by his commission authorized before whom the offendors shall be thereof conuicted And further our said statute lawes haue set downe for the most part what fées or duties the sutor ought to pay to the officer the officer is to demaund of him to the intent that the one shall not be ignorant what to offer nor the other what to require and to the end that the Law hauing written it in a sort in the officers forehead what his duty is he may blush when he looketh in the sutors face and demaundeth more 2 I will begin with an Exaction that no former generation did tast of heare of or feare but it hath sprung vp of later yeares bin greatly exclaimed of and condemned in this our present age which is taking of money or some other reward for a Report or Certificat wherein the offendor most commonly doth a double iniury and to two seuerall persons viz. first to him whose mony fee or other reward he taketh for the fauourable making of that report in his behalfe whereas the law doth allow him none for reporting but otherwise bountifully rewardeth him for that and all such other paines and next and chiefely to him in preiudice of whom or whose case he maketh that report He doth not now indifferently respect the cause in question but bendeth his eye vpoÌ„ the reward which he hath receiued and deuiseth to accomplish the request of the one and yet to yéeld to the other not the effect but some colour of iustice The King at his coronation doth promise to all his subiects Mag. Chart. St. 9. H. 3. 29 Quod nulli vendemus nulli negabimus aut differemus iusticiam whereupon the whole realme did take it vnkindly at their hands who being the kings Substitutes in place of iustice and receiuing but a small particle of his authoritie would doe then all the said offences at once and sell denie and deferre iustice to some of the kings subiects certifie that for good which was bad or that for iustice which was méere iniurie Or if they did make report and certificat of that which was iust and true would sell it and take money or other reward for it which the king himselfe vpon his oath refuseth to doe And therefore because all exâ—â—tions extortions and corruptions be odious as well in this as in all other well gouerned Commonweales and to the intent to preuent the like enormities in this and other ages by a statute made Anno 1. Iacob it was enacted St. 1. Iac. 10 That no person to whom any order or cause shal be committed Exaction by taking or reward for a report or referred by any of the Kings Iudges or Courts at Westminster or any other Court directly or indirectly or by any act shift colour or deuice haue take or receiue any money fée reward couenant obligation promise agréement or any other thing for his report or certificat by writing or otherwise vpon paine of forfeiture of one hundred pounds for euery such report or certificat and to be depriued of his office and place in the same Court The one moitie to be to the king his
Ordinarie nor other person or persons whatsoeuer hauing authoritie to take probation of any Testament by himselfe or any of his ministers for the probation insinuation and approbation of any testament or testaments or for the registring sealing writing praising making of Inuentories giuing of acquitances fines or any other things concerning the same shall take or cause to be taken of any person or persons onely thrée shillings six pence and not aboue whereof to the Ordinarie for him and his ministers two shillings six pence and to the scribe the xij d residue for registring of the same The goods exceeding xl l. And where the goods of the Testator doe amount aboue the cléere valew of fortie pounds sterling then the Ordinarie by himselfe nor any of his Ministers for the probation of any testament or for the registring sealing c. or for any thing concerning the same probat shall take of any person but onely fiue shillings and not aboue whereof to be to the saide Ordinarie for him and his ministers two shillings six pence and not aboue and two shillings six pence residue to be to the scribe for the registring of the same Or else the scribe to be at his libertie to refuse the two shillings six pence and to haue for the writing of euery tenne lines of the said testament a penny whereof euery line to containe in length tenne inches And euery such Bishop Ordinarie or other person hauing authority to take the probation of any testament their Registers Scribes and Ministers shall approoue insinuate seale and register the said Testaments and deliuer the same sealed with the seale of their office to the executor or executors named in such testaments for the summes abouesaid and in manner and forme aboue rehearsed with conuenient speede without any frustratorie delay If any person die intestate An administration granted or the executors named in any such testament refuse to prooue the said testament Then the Ordinarie or other person or persons hauing authoritie to take probat of testaments shall graunt the administration of the goods of the testator or person deceased to the widdow of the same person or to the next of his kinne or both as by the discretion of the same Ordinarie shall be thought good taking surety for the true administration of the same goods taking nothing for the said administration granted vnles the goods of the person so deceased amount aboue the value or summe of C. sÌ„ And in case the goods of the person so deceased amount aboue the value of C. sÌ„ and not aboue xl l. then hée his officers shall take only ij sÌ„ vj. d not aboue And in case any person or persons at any time require a copie or copies of a testament prooued or inuentorie made The fées for copies then the said ordinarie c. or his ministers shal from time to time with conuenient spéed without frustratory delay deliuer or cause to be deliuered a true copie or copies of the same vnto the said person or persons demanding the same taking for the search for the making of the copie of either of the said testameÌ„t or inuentorie but only such fée as is before rehearsed for the registring of the said testament or else the scribe or register to be at his libertie to demand haue take for euery x. lines thereof being of the proportion before rehersed j. d. But where any persons hauing authority to take probat of testameÌ„ts haue vsed to take lesse sums of mony than abouesaid for the probat of testameÌ„ts or coÌ„missioÌ„ of administâ—atioÌ„s or other cause concerning the same they shal take such sums for the same as they before the making of this act vsed to take not aboue Euery Bish ordinary archdeacoÌ„ chaÌ„celor coÌ„missary official other persoÌ„ persons hauing authoritie to take probat of Testaments their Registers Scribes Praisors Summoners Apparitors and all other their Ministers whatsoeuer they be The forfeture of the offendor that shall doe or attempt or cause to be done or attempted against this Act in any thing shall forfeit for euery time so offending to the partie grieued in that behalfe so much money as he shall take contrary to this Act and ouer that shall forfeit to the King and the party grieued ten pounds to be recouered by A. I. B. c. wherein no W.E.P. And euery of the same Bishops and other persons which shall incurre the danger of such penalty shall be charged onely for himselfe and none of them shal be chargeable to the penalty for others offences Extortion is an Ordinary for the Seale of a Citation 28 Shortly after the making of the foresaide Statute of Anno 21. H. 8. the graund Councell of the Realme being as carefull that Ordinaries or their Officers should no more commit extortion in sealing of Citations than they might in proouing of Willes granting of Administrations or such like did therefore by a statute made Anno 23. H. 8. ordaine St. 23. H. 8. 9 That if any Archbishop Bishop Ordinarie Officiall Commissarie or other person hauing spirituall iurisdiction or any substitute or minister of his doe aske demand take or receiue more than three pence for the seale of a Citation hée shall pay to the partie of whom he doth demand take or receiue the same double dammages and costs and shal forfeit for euery offence tenne pounds to the king and I. to be recouered by A.I. wherein no W.E.P. c. Mortuaries 29 Because in former times it was vncertaine and by this meanes oft times great question did grow what and how much Parsons Vicars or other spirituall men or their farmors ought to take for Mortuaries or Corse Presents after the death of their Parishioners Therefore to the intent that the same should be limited in certaintie and not be excessiue nor any Extortion Exaction or other wrong committed in the taking St. 21. H. 8. 6 or receiuing of them by a Statute made Anno 21. H. 8. it was established That no Parson Vicar Curate or parish Priest nor any other spirituall person nor their farmers Baylifes or Lessées shall haue take receiue or demaund of any person or persons within this Realme for any person or persons dying within the same any maner of Mortuarie or Corse present nor any money or other thing for the same more than is héereafter expressed Nor shall conuent or call any person before any Iudge spirituall for the recouerie of any such Mortuaries The penaltie for extorting for a Mortuarie or any other thing for the same more than is héereafter expressed vpon paine to forfeit for euerie time so demaunding receiuing taking conuenting or calling any such person or persons before any spirituall Iudge so much in valew as they shall take aboue the summe limited by this Act and ouer that fortie shillings to the partie grieued contrary to this Act for the which the partie grieued shal haue an action of
amend his vessels 25 It is an oppression to many thousand woollen cardmakers cardwierdrawers of this realme who do liue by the same trade Oppression by bringing in of woollen cards to haue cards for wooll brought out of forraine regions into this Realme here sold to the hinderance of the sale of their like wares And therefore if any person shall bring or send or cause to be brought or sent any such cards for wooll to be bartered or sold in England or Wales St. 39. El. 14 St. 1. Iac. 25 by the stat of An. 39. El. he shall forf them or the very value of them to the K. and him that will seise or sue for the same 26 If any person shall erect a new weare along the sea shore Oppression by erecting of weares or in any hauen harbour or créeke or within 5. miles of the mouth of any hauen or créeke or shall willingly take destroy or spoile any spawne fry or brood of any Sea fish in any weare or other engine or deuice whatsoeuer Oppression by destroying of fish this is an oppression to all those that liue by or vse fishing in those parts and a hinderance to the coÌ„monwealth St. 3. Iac. 11 And therefore by the stat of An. 3. Iac. the offendor shal forfeit for euery time so erecting setting vp taking or destroying of fish x. l. to the king I. And if any person shall fish with any drawnet or dagnet vnder three ynches meash viz. one ynch and a halfe from knot to knot except for the taking of Smoulds in Norfolke only or with any net with cannas Oppression by nets or other engine or deuice wherby the spawne fry or brood of sea fish may be destroied this is also an oppression to all those that liue by or vse fishing a hinderance to the commonwealth and therefore the offendor shall forf such net for euery time so doing x. sÌ„ whereof the one halfe to him that will sue and the other halfe to the poore of the city towne parish or liberty where the offence shal be committed 27 For that buying selling and regrating of wood by gréedy and couetous persons is a meane to make the same déerer and is a great oppression hurt to the commonwealth St. 7. E. 6. 7. therefore it is ordained by the stat of An. 7. Ed. 6. That if any person shall buy any fuell coales or wood but onely such as will burne or consume the same Oppression by buying selling of fuell or such persons as shall sell the same again by retaile to such as shall burne or consume the same for their owne occupying without fraud or couin or wharfingers or bargemen he shall forf to the K. I. the treble vâ—lue of the same wood coales or fuell as shal be otherwise bought for lucre gaine St. 15. H. 8. 2 28 If any person shall carrie and conuey Oppression by transporting of victuals or cause to bee carried and conueyed any victuals necessarie for mens sustenance to any parts beyond the Sea vnlesse it be by licence vnder the Kings great seale sauing for the victualling of Mariners and Marchants of Shippes passing the Sea and sauing barrelled butter and meale to be carried to the parts of Ireland as hath bin accustomed this is a meane to enhaunce the prices of victuals within this Realme an so an oppression to the inhabitants of the Realme And therefore by the Statute of Anno 25. H. 8. the partie offending shall forfeit the value of the thing carried to the K. and I. St. 37. H. 8. 9 St. 13. El. 8 St. 39. El. 18. 29 By the Statute of Anno 37. H. 8. Oppression by vsurie and confirmed and explaned by the Statute of Anno 13. El. it is ordained to be vnlawfull vsurie and an oppression if any man do sell any marchandises or wares to another and buy the same againe within thrée months for a lesse price knowing them to be the same that he sold And so it is if any person by any bargaine loane exchange or shift of any wares or other things shall take in gaines for the forbearing of his money or other thing one whole yeare aboue x. l. in the 100. l. And so it is if any person shall take aboue x. l. for the forbearing of 100. l. for a yeare vpon sale or morgage of lands of the profites of the same lands and in the cases aforesaid the offendor shall forfeit for euery such offence the treble value of the wares marchandizes and other things so bargained sold changed c. and the treble value of the issues and profits of the said lands so taken by bargaine sale or morgage to the K. and I. and shall suffer imprisonment make fine at the kings pleasure And all bands contracts and assurances collaterall made for payment of any principall or money to be lent or couenant to bée performed for any vsurie in lending or doing of any thing vpon or by which loane there shal be reserued or taken aboue the rate of x. l. for the 100. l. for one yeare shall be vtterly void and he that doth take or couenant or reserue to take x. l. for the forbearance of 100. l. for one yeare and so after that rate or any summe vnder x. l. shal forf only that x. l. or other lesse summe which he doth so take or couenant or reserue to take though it be but a penny or lesse then a penny to the K. and I. c. Fraudulent shadowing of vsurious bargaines If A. doe lend to B. 100. Co. li. 5. 70 l. and do bargaine agrée with him that if I. S. do liue one whole yéere next comming that then B. shal pay him xx l. for the loane of his 100. l. for a yéere and if I. S. doe die within the yéere that then B. shall pay him but his 100. l. again this is an oppression of B. and an vsurious bargaine and A. is to be punished according to the foresaid stat of 37. H. 8. For as he made reserued the interest of xx l. payable if I. S. should liue one yéere so he might as lawfully haue put in the liues of xx other persons and so deluded the true meaning of the makers of the said Statute And in like sort if A. do lend to B. 100. l. for a yéere do bargaine with B. that if I. S. shall liue vntill the end of that yéere then B. shal pay him xx l. for the interest or loane of his 100. l. for that yéere and if the same I. S. doe die within the said yéere that then B. shall repay to A. but lxxx l. of his principall money this is an vsurious contract and an oppression to be punished according to the said statute for in both the foresaid cases there was but a shaddow deuised by the lender to protect him from the penalty of that statute which at
the Kings Bench for that he did beate a woman great with childe with two children AnÌ„ 3. Ass pl. 2. M. 1. E. 3. 24 so that one of the children died presently and the other was borne baptised and had a name of Baptisme giuen and within two daies after that childe also died by the hurt it receiued by the foresaid beating this was adiudged no felonie for the reasons aforesaide But if a woman being deliuered of a childe doth presently kill it before it be baptized Fit cor 418 M. 2. El. Di. 186. this is felony in her though the childe had no name of Baptisme because the childe was in rerum natura before it was killed and it is knowen by whom and what meanes that childe came to his death 40 If a man doe beate or otherwise hurt another whereby hée dieth In homicide the pâ—rty must die within a yeare and a day it is requisite to make it Homicide Fit cor 303 that the partie doe die within a yeere and a day next after the batterie or hurt done Or else the Lawe will not adiudge it homicide or that the partie stricken did die of that beating or hurt And the same Lawe is if poison be giuen by one man to an other whereby hée dieth the Lawe will not construe it to be murder vnlesse the partie doe die within a yeere and a day next after the poison receiued 41 As a man may commit felonie in killing of an other Homicide by felo de se so he may commit felonie in killing of himselfe and then the Law doth aptly call him felo de se for though Homicide is most fitly and commonly termed where one man doth kill an other yet the same phrase may in good congruitie of speach be well applied to one that killeth himselfe for there is an Agent and a Patient a killer and one slaine and both in one and the selfe same person And though there may be many causes why a man may kill himselfe as there be many and seuerall humours opinions distractions and fantasies in men yet most coÌ„monly he becommeth felo de se Bracton de coro ca. 31. feloniously killeth himselfe who being guilty of any grieuous crime is apprehended for the same or vehemently suspected or accused thereof or being wearie of his life for extreamitie of paine or pouertie as being not able to kill his enemie or to be reuenged of him according to his desire doth therefore kill himselfe c. which felon of himselfe shall forfeit to the King his goodes chattells reall and personall Plow com 260. 261. Fitz. Cor. 362. 301. 426. and debts but not his lands for the Lawe doth so greatly fauour inheritance that it shall not escheate without attainder indéede Neither shall his wife forfeit her dower nor his blood shall be corrupt And the reason why the King shall haue the goodes chattels and debts of felo de se forfeited vnto him The cause of the forfeiture of felo de se is for that the King hath lost a subiect and the same subiect hath broken the Kings peace in killing of himselfe and giuen an euill example to his people and hath fled from and escaped the triall of the Lawe and he himselfe was the cause why he could not be tried by the Lawe Co. l. 5. 110. But the goodes of felo de se be not forfeited vntill his death be presented and found of Record And therefore those goods cannot be claimed by prescription And if felo de se be cast into the Sea or a great Riuer or so secretly buried that the Coroner cannot haue the sight of his body and by thgt meanes can not enquire thereof Then all such Iustices of Peace and Oier and Determiner which haue authoritie to enquire of felonies shall enquire thereof An Enfant or Lunatike killeth himselfe 42 If an Enfant furious or frantike man doe drowne Bracton de coron ca 31 21. H. 7. 31 Fitz. cor 244. Co. li. 1. 99. Plow com 260. or otherwise kill himselfe hée shall not forfeit his goodes c. because he wanteth reason and iudgement And if a man that is lunatike doe strike himselfe with his knife or other weapon and after doth recouer and notwithstanding dieth of the same stroke that himselfe did giue within one yéere and a day after the stroke giuen yet he shall not be adiudged felo de se nor forfeit his goods or any thing therefore for the Lawe doth respect what he was at the beginning when hee gaue himselfe the stroke which was the cause of his death and not what he was when he died For if a man that is frantike from day to day doe kill himselfe he shall not forfeit his goods But the Lawe is otherwise if a man doe kill himselfe who is frantike but at certaine times Fitz. coron 324. viz. per lucida interualla Killing of him selfe in the stead of an other 43 If a man doe strike an other to the ground and then draweth his knife to kill him and the defendant lying vpon the ground draweth his knife to defend himselfe H. 44. Ed. 3 44. and the assailant is so hastie to kill the defendant that hee falleth vpon the defendants knife and so is slaine In this case the assailant is felo de se for he had an intention to kill though not himselfe yet the defendant And so as the death intended by him was by his hast transferred from the defendant to himselfe so is the name of a murderer transfered to felo de se 44 If a lease of lands be made to the husband Plow com 258. and the wife for the terme of certaine yeares and the husband goeth into the water and drowneth himselfe in this case Forfeiture of lease made to felo de se and his wife after the death of the husband shal be found by the Coroner vpon the sight of the dead body and the title of this land shal be likewise found by an inquisition taken before commissioners authorised thereunto the foresaid lease and whole terme of yeeres shal be forfeited to the King and the wife shall haue no part thereof for this forfeiture shall haue relation to the husbands going into the water whereupon the drowning did ensue at the which goeing into the water hée had the whole interest of the lease in him so to dispose that hée might haue aliened the whole interest thereof from his wife and this going into the water wherupon this drowning and death did ensue was a forfeiture or alienation in law of the terme and was as much in construction of the law as if hée had then aliened the whole terme to the King And the finding of the death of this man before the Coroner vpon the sight of the bodie and the finding of the title of this lease before Commissioners bée equiuolent to a iudgement that might haue béene giuen against him in his
the sayd auntient law for they would not deliuer the prisoner vnto the Ordinarie vntill hée was indicted and also arraigned and that it was enquired by an Enquest of Office whether hée were guiltie or not In which case if he were found not guiltie they would discharge him and if he were found guiltie his goods should bée forfeited his lands taken into the Kings hands and his bodie deliuered to the Ordinarie And the cause of chaunging this law was that the Ordinarie might take greater charge of the prisoner being now indicted than before and to benefit the King by the forfeiture of the prisoners goods and to bréed a greater feare in Clerkes after that they should not offend Which alteration was obserued for law vntill the raigne of King Henry the sixt at which time the Iudges would not admit a prisoner to demaund his Clergie vpon his arraignment but put himselfe first to answer to the Felonie and if hée were found guiltie of the Felonie at his owne suit then to heare him demaund his Clergie and not before 3. H. 7. 1. 12. which is a more reasonable law than the former for before hee should haue forfeited his goods vpon an Enquest of Office whereunto hée could haue no challenge and now he shal be tryed at his owne suit and shall haue his challenge to the Enquest and then if he be found guiltie hée shall forfeit his goods and for the sauing of his life and his lands hée is to pray his Clergie Which hath bin vsed euer sithence and is obserued for law at this time vnlesse the prisoner himselfe will refuse the benefit thereof and pray to haue his booke without hearing the verdict As if a prisoner after an Enquest is charged vpon him Clergy demanded before verdict and before their returne againe will say that he is a Clerke and desire his booke at his perill in this case the Court hath allowed him his Clergie and yet after hath receiued a verdict as well in fauour of life as in fauour of the King for if he be found not guiltie the prisoner shall be discharged and if he bée found guiltie the King shall haue his goods as forfeit And the request of his booke in that case is more for the prisoners disaduantage than the Kings for it may bée a meane that the Iurie vnderstanding thereof will the rather find him guiltie of the felonie than otherwise they would haue done 26. Ass p. 19 33 If a prisoner doe say that hée is no Clerke Denying to be a Clerke and yet is yet after if before iudgement hée doe pray his Clergie where Clergie is allowable by the law and then doth read as a Clerke hée shall haue his Clergie notwithstanding his former words But it hath béene a question Whether clergie is allowable without request whether the Iudges ought to allow any man his Clergie without praying of it though the offendor be indicted by the name of Priest Fi. Cor. 254 Clerke c. or that by some other meanes the Iudges themselues doe know that hée is a Clerke or that without praying of his Clergie they shall giue iudgement of death against him And in this case some doe affirme that if the prisoner doth not pray his Clergie hée shall not haue it though the Iudge doth vpon his owne priuat knowledge vnderstand that hée is a Clerke for the Iudge must in those cases procéed according to his iudiciall knowledge and as by record things bée found proued and tryed before him and not according to his owne naturall knowledge And they bée the rather so induced to thinke by the words of the aforesayd statute of 1. Edw. 6. St. 1. E. 6. 12 which ordayned That a Péere of the Realme shall vpon request haue the benefit of his Clergie and so inferre that without request he shall not haue it nor any other without request which is to haue it vpon request 34 The temporall Court shall be Iudge to allow or disallow of Clergy Who shall allow of clergy and not the Ordinary 15. H. 7. 9. for it was entred into the roll of the court legit vt Clericus ideo tradatur Ordinario by which words it doth appear that the court doth giue allowance therof for the felony being the act which is cōmitted is temporal and the Iudge which did commit him to the Ordinary is temporal so is the authority wherby he did commit him And the Ordinary should haue bin punished if before the stat of 18. Eli. St. 18. El. 6. he had letten to baile or at liberty any prisoner cōmitted to him or if he had imprisoned him too straitly or too easily or would not haue suffered him to haue made his purgation and in that case the king might haue sent his Writ vnto the Ordinarie commaunding him to suffer his prisoner to make his purgation or might haue pardoned him or set him at liberty Fitz. Cor. 44. 17 without making his purgation and if one read as a Clerke and yet the Ordinarie will refuse him notwithstanding hee shall haue the benefite of his Clergie and on the other side if the Ordinarie will say that hee doth read as a Clerke whereas in truth hee doth not read as a Clerke the Court must giue iudgement that hée shall bee hanged and cause execution to bee done of him And further to prooue that the Temporall Court is Iudge of the reading the Court doth appoint the verse or place to the prisoner to read and not the Ordinarie And also doth set a fine vpon the Ordinary 34. H. 6. 49. 21. Ed. 4. 21. 9. E. 4. 28. for saying that the prisoner doth read as a Clerk where he doth not which the court could not do if the reading were referred to the Ordinarie A felon doth read vnder the gallowes 35 If a felon doth not read as a Clerke before the Iudge at the time of his arraignment whereupon he is adiudged to be hanged yet in fauor of life 34. H. 6. 49. if hée arraignment whereupon he is adiudged to be hanged yet in fauor of life if hée do demand it at another time vnder the gallows if any of the Iudges do passe that way and doth read as a Clerke he shall haue the benefit of his Clergie although there be no Ordinary there to demaund him But this is in case where the felon is arraigned and iudged before the Iust of the K. Bench 3. 4. El. Dy. fo 205. or else in case where he is arraigned and iudged before the Iust of gaole deliucrie and it is entred by the Court non legit vt Clericus and then for some cause he is repried vntill the next Session and then againe he is demanded if he can read and then he can and doth read in this case he shall haue his Clergy in fauor of life And though he was taught to read in the gaole this shall saue his life but the
9 And because seruants in husbandrie labourers artificers and other persons of meane degrée should take no incouragement nor occasion to breake the peace nor weare any weapons therewith to menace threaten or terrifie others Therefore by a Statute made anno 12. R. 2. it was ordained St. 12. R. 2. 12. That no seruant in husbandrie or labourer nor seruant of artificer or victualler shall beare any Buckler Dagger or Sword vpon paine of forfeiting of the same except it be for the defence of the realme in the time of warre and then by the suruey of Arraiers for the time beeing or in trauelling with their masters or on their masters businesse And Sherifes Mayors Baylifes and Constables shall haue power to arrest all offendors against this Statute and seize the said Bucklers Swords and Daggers and kéepe them vntill the Sessions of the Iustices of peace and the same shall present before the same Iustices in their Sessions together with the names of them that did beare the same But this shall not be preiudiciall to the franchises of Lords touching forfeitures due to them By the foresaid two Statutes of 2. Ed. 3. and 12. R. 2. it doth appeare that the meaning of the makers of those lawes was not onely to preserue peace to eschew quarrels but also to take away the instruments of fighting and batterie and to cut off all meanes that may tend in affraie or feare of the people Assurances made by menace 10 As menace of life and member giueth cause of an action of trespasse to him that receiueth losse or hurt thereby intituleth the king to a fine 20. Ass p. 14 28. H. 6. 8. in like sort an obligation a release or déed of annuitie made and granted by menace are voidable by the law so that the same menace be of life member or libertie viz. of some hurt to be done to his body by death maiheming or imprisonment and not to his lands or goods for if A. will menace B. that if he will not make him an obligation of xx l that then he wil disseise him of such land 7. Ed. 4. 21. 4. H. 4. 2. 39. H. 6. 51. or dispossesse or take from him such goods in this case if B. doe make and deliuer the said obligation of xx l to A. in an action of debt brought by A. against B vpon the said obligation B. shall not auoyd this obligation in respect of this menace because this menace did not tend to the hurt of the person of B. but to preiudice him in his lands or goods for the redresse and recouerie whereof the law would haue giuen B. a sufficient remedie if A. should haue done him the wrong which he menaced And he that will take an aduantage to auoid his déed by menace must in this plea expresse Fitz. Dures 13. how and in what sort the other partie did menace him viz. that he drewe his sword against him and threatened to kill him if he would not seale and deliuer such an obligation release annuitie c. If A. doe menace B. in one countie that he will kill or maihem him 33. H. 6. 24. 2. H. 5. 10. if hee doe not seale him an obligation of xx l or stand to the arbitrement of C. in a cause depending in question betweene them And after B. beeing at libertie in another countie doth seale the same obligation or doth stand to the arbitrement of C. this obligation or arbitrement is void for it shall be intended to bee done by force of the first menace And if A. doe menace B. that he wil kil him imprison maihem or beate him if he doe not make an obligation of xx l to C. 39. H. 6. 36. Co. li. 2. 9. if in this case B. do become bound by obligation to pay vnto C.xx l. in an action of debt brought vpon this obligation by C. against B. the same B. may auoid this Obligation which he made by this menace of A. though the menace was made by one man the Obligation was made to an other for that the menace was the cause of the making of this Obligation which the law doth respect and punish and not only the partie to whom the Obligation was made 11 Assault batterie be for the most part an accomplishment of that which menace did threaten a performance by déedes of that What is assault and batterie which the other forewarned by words that is to say a violent forcible abusing or attempting to abuse by blowes and stripes the person of an other contrary to the peace of the Realme and the law of the same which hath ordeined that no person shall be Iudge or reuenger of his own wrong but leaue that to the censure of the law that is alwaies readie to heare redresse euery mans iust complaints for he that doth attempt to assault or beat an other to satisfie his own turbulent spirit or to reuenge his owne priuat iniurie doth as much as in him lieth to wrest the sword of gouernmēt out of the K. hands to take from the law her equal censure in justice to make himself both Iudge executioner in his own cause because this disordered person contemning the justice of the Law hath assaulted or beaten an other without warrant of law broken thereby the peace of the realm the law hath deuised a quiet peaceable course to reduce him again to order in punishing him by an action of Trespas of assault batterie wherin being conuicted he shal satisfie the party grieued his damages pay to the K. a fine his body shal be committed to prison vntill he hath satisfied it Though the party menaced shall not haue his remedy by action of Trespas vnlesse the same menace was of life member and also that the party menaced receiued some losse or preiudice therby in his liuelyhood or estate for that the menace the hurt which the party doth receiue thereby being ioyned together do make the trespas giue cause of the action of Trespas Yet in an action of Trespas of Assault battery where it is proued found that the offendor did make an assault only as one did strike at an other with a hatchet but did make no batterie or hurt the person of any other it is otherwise for séeing assaulting doth tend to the breach of the peace 22. Ass p. 60 42. Ed. 3. 7. 40. Ed. 3. 40. 6. H. 7. 1. he that maketh an assault doth his indeuor to hurt the law doth giue to him that is assaulted an action of Trespas to recouer his damages to the K. a fine for by the assault the party assaulted is put in feare euill handled hindred of his busines And if he be diuers times assaulted 45. E. 3. 24. he may haue one action of Trespas for all those assaults shall recouer damages according to the number and grieuousnes of them And
for an assault made to the wife 22. Ass p. 60 the husband the wife shal haue an action of Trespas against him that made the assault 46. Ed. 3. 6. the declaration shal be ad damnuÌ„ ipsorum though the husband only shall recouer the damages 12 But as he that is assaulted or beaten Iustifying of beating in his owne defence shal haue his remedie by action of Trespas against him that did assault or beat him also the K. shall haue a fine therefore if he that made the assault or battery did it without cause offered therein iniurie to the party assaulted 16. Ed. 4. 11. 19. H. 6. 47. 6. H. 7. 1. 34. H. 6. 15. 43. Ed. 3. 23. because the kings peace is broken one member of the coÌ„mon weale hath abused done wrong to an other So on the other side if he that was so assaulted or beaten did first make an assault vpon him that after did beat him would haue beaten wounded or c. and in his said assault did receiue from the other some stripes or blowes the def may iustifie his said assault batterie as a thing done in defence of his owne person from imminent present perill wherin the Law will protect defend him And therfore in that case the def doth answer the pl declaration pledeth in bar that the pl did assault him would haue beaten him he defended himself the hurt which the pl receiued was by his own assault And the pl in his replication doth plead that the defendant did with force armes of his owne wrong make assault vpon him beate him euill intreate him contrary to the Kings peace without any such cause as the defendant hath alledged And so the issue is ioined whether the assault was begun and made by the plaintife vpon the defendant or by the defendant vpon the plaintife for if the assault batterie 38. Ed. 3. 6. or assault only was first made and begun by the defendant vpon the plaintife Then the defendant did it with force armes and against the kings peace is to answere damages to the plaintife according to the hurt which he receiued to pay a fine to the K. for vsing force violence breaking his peace for at all times in an action of Trespas vi armis brought against any person 19. H. 6. 8. if the defendant be conuict he shall pay a fine to the King 8. Ed. 4. 15. But if the plaintife made the first assault and the defendant in his own defence rather then he would be beaten or wounded did beate strike or wound the plaintife Then the plaintife shall recouer no dammages against the defendant but shal be amerced to the King for his false suit Neither shall the defendant be charged to pay to the king any fine And if one man wil assault offer to beate two thrée 12. Ed. 4. 6. or more persons they in their own defence doe beate or wound him he shall haue no action of Trespas or other remedie against them one of them may defend helpe the other But it is to be obserued in this case that if one man doe assault an other if he which is assaulted may escape with his life 2 H. 4. 8. 33. H. 6. 18. or without being wounded or maihemed it is not lawfull for him to beate or wound the other who made the assault 13 As the law doth accompt it no breach of the peace for one man to beate an other in the defence of his own person from killing Iustifying of beating in defence of others wounding or beating but a thing iustifiable So doth she impute it no fault punishable for the husband to beate him that doth assault would beate wound 19. H. 6. 31. 66. Lib. intur 553. or euil intreate his wife being both one flesh or for the wife to beate him that doth assault and would beate wound or euil intreate her husband Or for the sonne or daughter to beate him that doth assault would beate wound or euil intreate his or her father or mother Or for the father or mother to beat him that doth assault Lib. intur 554 would beate wound or euil intreat his or her sonne or daughter being then within age not able to defend him or her selfe Or for the Lord to beate him that doth assault would beate wound or euil intreat his villaine Or for the seruant to beate him that doth assault would beate wound 35. H. 6. 51. 11. H. 6. 19. 12. Ed. 4. 6. or euill intreate his master or mistris or to take any weapons wherewith the assailant would beate wound or euil intreat his master to kéepe them vntil his rage be swaged for the seruant is bound to performe vnto his master mistris protection dutie he may kill a man in defence of his master if his said master cannot otherwise escape But the seruant cannot iustifie the beating of him 21. H. 8. 39. that doth assault attempteth to beate wound or euil intreate the father mother brother sister son 9. Ed. 4. 48. or daughter of his master or mistris for he oweth no obedience or duty to any of them Neither can the master iustify the beating of him that doth assault would beat wound or euill intreat his seruant Fitz. Iustification 3. 19. H. 6. 30. 66. But though the master cannot assault beat an other that doth assault would beate wound or otherwise euill intreat his seruant Yet he may with a sword staffe or other weapon aide defend his seruant assaulted from being beaten that in respect of the losse of his seruice And also after his seruaÌ„t is beaten 22. H. 6. 43. 21. H. 6. 9. Fitz. Trespas 46. 20. H. 7. 5. Cook lib. 5. 108. he may haue an actioÌ„ of Trespas against him that did beat wound or euil intreat his said seruaÌ„t vnles it were vpon the same seruants own assault recouer so much in damages against the offeÌ„dor The masters remedy for the beaâ—ing of his seruant as he receiued preiudice or hinderance by the losse of his said seruants seruice for if the seruant be but so beaten that he is able to do his seruice as well as he was before the master shall recouer no damages for that beating And as the master may haue an action of trespas against the offendor recouer so much in damages as he doth loose by the want of his said seruants seruice so likewise the same seruaÌ„t may haue another action of trespas against the offendor recouer so much in damages as he shall receiue hurt on his bodie Fitz Trespas 210. 21. H. 6. 8. 3. H. 6. 54. 34. H. 6. 28. 43. by the said assault beating In an action of trespas brought by the master for beating of his seruant wherby he
Charter of pardon which is allowed he may haue an action of Trespas against the offendor for the assault batterie made before the Outlawrie for the said outlawrie shall not extinguish his action nor cause that offence which before was punishable to be vnpunished And if the partie beaten should not haue his Action the iniurie done vnto him should be vnpunished for the King shall haue no remedy to recouer damages for this batterie done to the person of him that was outlawed 29. Ass p. 47 63. as he might haue had if any debt had béen owing or any goods had béen taken from the outlaw before his outlawrie And the Law doth expect that for the peace broken and the wrong done to the partie grieued the same partie shall vpon his action of Trespas brought be recompenced by the recouerie of his dammages and the king satisfied for his peace broken by a fine 11. H. 4. 65. 9. H. 6. 60. 27. Ass p. 57 33 In an action of Trespas of assault and batterie A man first indicted of batterie and after sued for the same trespas the defendant pleaded not guiltie the plaintife replied that the defendant was before that time indicted before the Iustices of Peace of the same Countie of the said assault and batterie and thereupon proces was awarded against him for the kings fine who then appeared and pleaded that the hurt which the plaintife receiued was by his owne assault and thereupon they were at issue and before the verdict the defendant appeared and confessed the Trespas and submitted himselfe to the Kings fauour and made his fine and demaunded iudgement if he should be allowed to plead not guiltie contrarie to his owne confession and this was adiudged a good Replication and an Estoppell of the said plea in barre And then the defendant pleaded that the hurt which the plaintife receiued was by his owne assault vpon which plea the plaintife demurred séeing the defendant before had pleaded that plea against the King And then he also waiued that plea and confessed the trespas whereupon a writ was awarded to inquire of dammages And so for this assault and batterie the king was first intituled to a fine by the Indictment and after the partie grieued recouered dammages by an action of Trespas 34 Imprisonment is where a man is arrested by force against his will and is restrained of his libertie What imprysonment is and put in a common Gaole or other gaole Lib. Intrac fol. 319. in a cage or in the stockes or otherwise kept in the high streete or open field if he be in restraint and cannot go at libertie when he will but is bound to become obedient to the will of the Law and is in the custodie of the Law And in all the cases aforesaid the partie so restrained is said to be a prisoner so long as he hath not his liberty fréely to go at all times when he will without baile mainprise or other restraint And therefore if one person do arrest imprison or otherwise restraine an other person of that libertie without sufficient and lawfull cause the partie grieued may haue an action of False imprisonment or an action of Trespas against him that doth so arrest An action of False imprysonment or imprison him and recouer damages against him And the King shall also haue a fine of him for that his law is contemned and his peace is broken in that one of his subiects presumeth to imprison an other without sufficient warrant of him or his law seeing imprisonment of an other by only act will or commaundement without offence of the Law is one of the kings most royall prerogatiues and only annexed to the maiestie dignitie and imperiall Crowne of this Realme For by the Statute of Magna charta it was specially ordeined Stat. 9. H. 3. 29. That no man shall be taken or imprisoned or disseised of his fréehold or liberties or frée customes or be outlawed or exiled or any other wayes destroyed neither shall any passe or fit in iudgement vpon him but by lawfull iudgement of his Péeres or by the Law of the land And by the statute of AnÌ„ 28. Ed. 3. it was enacted Stat. 28. Ed. 3. 3. That no man shall be put out of his land or tenement nor imprysoned nor disherited nor put to death without being brought in aunswere by due proces of the Law And therefore whereas the Maior and Burgesses of a towne corporate being before authorized by the Kings letters patents to make ordinances for the good gouernment of the same Towne did condiscend amongst themselues Co. Lib. 5. 64. to leuie a summe of money for the charges of a lawfull and necessarie act to be done in the same Towne and did further agrée that if any of them did refuse to pay his part of that contribution money so assessed to be paied that then he should be committed to pryson vntill he had paid it and after one of the Burgesses of the Towne which before had agréed to the same assessement ordinance Voluntarie consent no cause of imprysonment refused to pay the money which he was by the residue assigned and assessed to pay whereupon the Maior of the same Towne committed him to pryson against whom the same Burgesse brought his action of False imprisonment and recouered dammages against the same Maior for though the same Burgesse all others of the same Corporation might haue submitted himselfe to haue paid a summe of money to haue béen leuied by distresse or action of debt if he or they had not performed the same order paid his part of that contribution yet the libertie or impriâ—onment of his bodie resteth in the censure iudgement of the Law and not in his owne disposition As if B. do promise C. or be bound by Obligation vnto him that if he do not paie vnto the same C. xx li. within sixe monethes that then C. shall take and impryson him vntill he hath paid it notwithstanding B. do not pay to C. the same xx l. at the time assessed C. may not imprison B. for it though it was his owne promise agréement or bond for that B. is not iudged by his péeres or condemned by the law of the land according to the foresaid statute of Magna Charta Neither is he brought to answere by due Proces of the law according to the purport of the before specified statute of An 28. E. 3. 35 But in many cases one person may arrest ImprisonmeÌ„t by the commaundment of the King his Iustices c. imprison and restrayne an other of his libertie and no action of false imprisonment action of Trespas or other remedie will be had against him As first it is a lawfull imprisonment which is done by the absolute commaundement of the King the chiefe Soueraigne head of the common weale by his owne mouth or by the priuie Councell which speake and direct by his Authoritie or by
good iustification for him though the Iustice of peace did erre in the awarding of the proces And the same law is if the Shirife doth erre in any warrant that he doth direct to the Bailife of a Libertie Arresting an offendor deliuering him to the Constable If a man do arrest an other 10. Ed. 4. 17. who he knoweth hath committed a robberie man slaughter or other felony do deliuer him to the Constable to carrie to the gaole and the Constable will set him at libertie or doth not carrie him to the gaole or that the same person arrested be rescued out of the possession or custodie of him that did arrest him yet in neither of the foresaid cases he that was arrested shall haue an action of False imprisonment against him that did arrest him for that there was no default in him that the offendor was not imprisoned according to his desert Imprisonmēt vntill he hath made an Obligation 50 An action of False imprisonment was brought for imprysoning the plaintife vntill he had made an Obligation of xl 2. Ed. 4. 19. pounds to the defendant and others vnknowen by duresse and this was adiudged maintenable for if the plaintife did not know their names he could not expresse their names for the Obligation is not the effect of this suit but the imprisonment and he shall not recouer dammages for the Obligation but for the imprisonment for that he is not yet damnified by the Obligation because when that is sued he may plead that it was made by duresse of imprysonment and so auoid it But if the action of False imprisonment be brought of an imprisonment vntil he had made a fine he shall recouer dammages for both for he is presently grieued by the fine and so is he not by the Obligation 51 If a master do imprison a man in a house 22. Ed. 4. 45. and deliuer the key of the doore of that house to his seruant The seruant not chargeable for the masters offence the partie imprysoned cannot haue an action of False imprysonment against the said seruant for the kéeping of the key But if the seruant that hath the key do know that the same partie were wrongfully imprysoned then he ought to let him go at libertie for the seruant is bound to obey his masters commaundement but in those things that be lawfull onely And if the seruant which kept the key did not know that the same partie was imprysoned in that house then vpon his plea of not guiltie he shall be excused in an action of False imprisonment brought against him by the partie imprisoned Imprisonmēt by force of a Iustices 52 If a writ of Natiuo habendo or a Iusticies be directed to the Shirif 2. H. 4. 24. he cannot iustify the impris of any man by force therof for they be but commissions to hold plea. And the bodie of a man shall not be arrested or taken but by proces awarded out of a court of record and by those Commissions the Shirises court is not made a court of record 9. Ed. 4. 30. 53 In an action of False imprisonment A warrant vpon a Supplicauit it is a good iustification for the defendant to plead that a Supplicauit came to the Shirife to apprehend the plaintife who made his warrant to the defendant to take him which he did accordingly And yet the Shirife can not giue his authority to an other to take suerty of him 5. H. 7. 6. 54 A Iustice of peace can not direct a warrant to apprehend him who hath broken the peace for he is to be punished by inditement Arresting him who would break the peace at the Kings suit or by action of Trespas of batterie at the partie grieued his suit But he may direct his warrant to apprehend him who he doth doubt meaneth to breake the peace in time to come and to bring him before himselfe or some other Iustice or else to commit him to prison for one Iustice of peace alone may doe his endeuor to preserue the peace before it be broken but being once broken it must be punished by inditement in the presence of diuers Iustices of peace or by action at the common Law Sta. 5. El. 4. 55 If any seruant woorkeman or laborer Imp. of a seruant for assaulting of his master shall wilfully or maliciously make any assault or affray vpon his master mistresse or dame or vpon any other that shall at that time haue the charge or ouersight of him or of the worke wherein he is appoynted or hired to worke and beeing thereof conuicted before any two of the Iustices of peace Maior or head officer of a towne corporat where the offence is committed or before either of the Lords Presidents of the North or Wales by the confession of the said seruant workman or laborer or by the witnesse and oath of two honest men Then euery such offendor shall suffer imprisonment by the space of one whole yeare or lesse by the discretion of two Iustices of peace if it be without a towne corporat if it be within a towne corporat then by the discretion of the Maior or head officer of the same towne corporat with two others of the discréetest persons of the same corporation at the least And if the offence shall require further punishment then to receiue such other open punishment so as it extende neyther to life or limme as the Iustices of peace in open Sessions or as the more part of them or the said maior or head officers or vj. or iiij at the least of the discréete persons of the same corporation before whom the offence shall be examined shall thinke conuenient for the qualitie of the said offence so committed 56 By which foresaid cases and many more Where imprisonment is lawfull and where not it appeareth that imprisonment is lawfull and sufficiently authorized by the Common Lawes and Statutes of this Realme in diuers respectes and for many crimes and there is by it no breach of the peace nor offence to the Law when it is inflicted by the warrant of the law for it aduaunceth as much the justice and peace of the Realme to haue offendors punished as to haue the innocent protected But the imprisonment which tendeth to the breach of the peace and the offence of the law is when one person or more vpon his or their owne authoritie eyther in reuenge of some supposed wrong receiued or in hope of a priuat gaine expected or for some other cause will of his or their owne authority imprison or arrest an other for the redresse whereof the party grieued shall haue an action of false imprisonment or an action of trespas recouer his damages And the same offendor which before did wrongfully imprison an other shall then vpon his conuiction by verdict or his owne confession be himselfe lawfully imprisoned vntill he hath paid to the king a
of Iust nothing was attempted but the reformation of the mans conditions and to haue the peace and good behauiour continued The suertie of good abearing in other cases then for the peace And though this suerty of good abearing is chiefely prouided for the continuance of the peace yet by force of seuerall Statutes it is also grauntable in some other cases St. 10. E. â— 3 As if the King do graunt to any person a charter of pardon of any felony then he shall come within thrée Monthes before the Shirife and Coronors of the same Countie where the felony was done finde sixe sufficient Mainpernours for whom the said Shirife and Coronors will answere that he from thenceforth shall beare him selfe well and lawfully Sta. 1. M. 3 And if any man disturbe a Preacher in his Sermon he shall be bound to his good abearing for one yeare St. 3. Iac. 19. 5. El. 21. And he shall be bound to his good abearing for seauen yeares who doth vnlawfully hunt and steale deare or conies or take away wrongfully any haukes or haukes egges or shall vnlawfullie distroy or breake the head or damme of any pond poole moate stagne or stew whereas fish are put or shall wrongfully fish in any of them to the intent to steale or take away any of them against the will of the owner or possessor of the same not hauing lawfull authoritie so to doe And he shall be bound with two sufficient suerties in CC. Sta. 23. El. 1. l. to the good behauiour which doth absent himselfe from the Church by the space of twelue moneths c. 71 Because it appeareth by the words of the foresaid commission of peace that the said Iustices of peace shal cause al those to finde suerty of peace which doe threaten any of the Kings people to hurt them in body or to burne their houses For whom against whom the suertie of peace is to be graunted Therefore all lay persons vnder the degrée of Lords or Péers of the Realme and also Ecclesiasticall persons if they be not attendant vpon diuine seruice may be arrested to finde suerty for the peace And if the husband do threaten to kill his wife or outragiously to beate her or that she hath any notorious cause to feare that he will doe so Fitz. Nat. Bre. 80. 239. she may demaund the suertie of the peace against him and she shall haue it graunted And in like sort and for the like causes may the husband demaund suertie of the peace against his wife in which case shée her selfe shall not be bound but others shal be bound for her And a Iustice of peace vpon his owne discretion may in either of the foresaid cases grant suertie of peace And one Iustice of peace may vpon his owne discretion or at the request of an other graunt the suertie of peace against an other of his felow Iustices of peace of the same county And one Iustice of peace may demaund suertie of peace of an other of his fellow Iustices against an other man A man attainted of Treason or Felony or in a Praemunire A man attainted An Heretike A Dumb man An Enfant A Villeine or abiured or conuict of Heresie a dumbe man or an Enfant within the age of xiiij yeares may demaund ought vpon cause to haue suertie of peace And so may a Villeine haue suertie of peace against his Lord least that his Lord should maihem him the Lord may haue suertie of peace against his villein A dumbe man or an Enfant aboue the age of xiiij yeare may also be inforced to find suerties for the kéeping of the peace but then themselues are not to be bound but some others for them Or else they must be committed to prison vntill they can find suerties A Iustice of peace cannot graunt suertie of peace against a Baron of the Realme nor any other aboue the degrée of a Baron A Baron But the party who would haue the peace against him must bring him by Subpoena into the Chauncerie Fitzh Subpoena 20. there he must be bound to the peace A man that is frantike shall not haue the suertie of peace of his owne demaund A mad man because he hath not discretion to request it But a Iustice of peace vpon his own discretion may bind an other to kéepe the peace against him if he sée cause thereof Neither shall he who is a Alien borne no Denizen An Alien nor in friendship with the King the Realme haue suertie of peace graunted him 17. Ed. 4. 4. 72 If a man do threaten an other to imprison him the partie threatned shall not haue the suertie of peace against him that did so menace him Vpon what cause the suertie of peace is to be graunted for that after he is imprisoned he may haue against the other a Homine replegiando or an action of false imprisonment and recouer damages so be recompenced for his imprisonment But if one man do threaten an other to beate him the partie threatned may haue the suertie of peace against him for that beating may tend to the maiheming or killing of him which the suertie of peace might haue preuented If a man do feare that an other will kill him maihem him hurt him in bodie or burne his house or procure or cause the same to be done and will come before a Iustice of peace Fitz. Na. B. 79. take his corporall oath to that effect the Iustice of peace is to graunt him the suertie of peace against the man complained of for that may satisfie the conscience of the said Iustice that the partie doth complaine vpon méere feare and not vpon malice or vexation And though the partie against whom the peace is demaunded may séeme to the Iustice of peace to be a simple person weake féeble impotent or far vnable to incounter by force and strength with him that demaundeth the suertie of peace yet he may procure or cause the other to be slaine maihemed beaten or his house to be burned And further if the party that doth complaine and desiâ—eth the suertie of peace will sweare that he doth feare where indéed he neither doth feare nor hath cause of feare yet his oath doth therein discharge the conscience and oath of the Iustice of peace And the whole fault if any be shall be iustly imputed to the complainor 73 And whereas the words of the kings Commission be Suertie of peace inioyned by word or writing That the said Iustices of peace shal cause all those to find suertie of peace which do threaten any of the kings people to hurt them in bodie or to burne their houses It is to be obserued that in some cases a Iustice of peace may by his owne word only cause suertie of peace to be found sometime he must do it by writing As if one man do in the presence hearing
County that he will so that he dwell within a conuenient distance and not too farre from the parties owne habitation But if a Supplicauit of the peace be directed to the Iustices of the peace the Iustice to whom the writ is first deliuered shall only make the precept to apprehend the partie to find suerty of the peace and that precept shall be retornable before him only and he only shall take the suerties and only make the retorne without the others Co. lib. 5. 59 And a Iustice of peace may if he will make a warrant to the Constable to bring the partie before himselfe 5. Ed. 4. 12. 76 If a Iustice of peace doe direct his warrant to the Constable A warrant to find suertie to keepe the peace or some other to cause A.B. to finde suerties to kéepe the peace The same Constable or c. must first require the same A.B. to find suerties to kéepe the peace and if he doe refuse it then he may arrest the same A. B. for if A. B. will finde suerties then the said Constable may not arrest him because the purport of the precept is performed which is if he refuse so to doe that then he shall conuey him to the Gaole And if the Constable shall arrest A. B. after that he hath found suerties according to the precept the same A. B. may haue an action of false imprisonment against him for that he hath arrested and imprisoned him without warrant or cause And likewise if the Constable do arrest A. B. and doe not carrie him before some Iustice of peace 5. E. 4. 6. to find suerties to kéepe the peace or if he resist or refuse so to doe then if he doe not carrie him to the Gaole A.B. may haue an Action of false Imprisonment against the Constable The partie must offer his suerties And when the partie commeth to the Iustice of peace by force of a warrant he must offer suerties to the Iust of P. or else he may commit him to prison 14. H. 7. 5. for the Iust néedeth not to demaund suertie of him Suerty of the peace dieth with the king 77 The suertie of peace is discharged by the kings death 1. H. 7. 1. for the band is to obserue the peace of the King and when he is dead it is not his peace So doth the death of the recognisor so doth also the death of him at whose suit it was taken discharge the suertie of the peace if in those cases it were not forfeited before The Iustices authoritie dieth with the King And in like sort when the King by his commission doth appoint Iustices of peace and after dieth or giueth ouer his crowne the Authoritie of the same Iustices doth cease for he maketh them Iusticiarios suos and therefore when he dieth their authority endeth The suertie for the peace must be named 78 When a Iustice of peace doth take suerties for the peace 2. H. 7. 4. it is not sufficient to say that I. N. hath found sufficient suertie for the peace without naming the names of the suerties but he must name their names and surnames He that is vound to the peace must appeare c. 79 If a man doe finde suerties to kéepe the peace 39. H. 6. 26. and hath day vntill a time prefixed he must appeare the same day although he who demaunded the peace doe not appeare or otherwise he shall forfeit his band But it is otherwise where a suit is betwéene party and party and the defendant being taken by a Capias is bound to appeare vpon a day appoynted 80 When the suertie of peace is graunted against a man by a Iustice of peace he will sometime rather desire to be bound to the peace by an other Iustice then by him that graunted the same and made the warrant And therefore he may offer himselfe to become bound to the peace to some other Iustice of peace of that County if he will A Supersedeas for the peace then procure a Supersedeas from that other Iustice before whom he is bound to all other Iustices of that Countie to be discharged of any other arrest to be made of him for the law doth not require that he should be seuerall times bound for one cause And this Supersedeas is sufficient although it neither name the suertie nor contein the summes wherin they are bound but yet it is a better forme to expresse them both as the Chauncerie and Kings Bench doe And when a man doth heare of such a precept awarded or granted against him by a Iust of peace of the County where he dwelleth he may go eyther giue suertie of the peace in the K. Bench or els in the Chancery thereupon may procure a Supersedeas from the court where he is bound to restrain the Iust of peace of the County to take any suertie of peace of him And then the Iustices of peace of that County must forbeare to make any warrant for the peace against the partie and if any of them haue awarded it A precept awarded by force of a Supplicauit he must make a Supersedias to discharge it But a Iust of peace of the county by a Supersedeas cannot discharge a precept that is awarded by his felow Iust by force of a Supplicauit directed to him out of the Chancery or the K. Bench to take the suertie of peace of one resident in that County If any officer hauing a warrant from a Iust of P. to arrest a man to find suerty of the peace shall receiue a Supersedeas out of the Chancery or the Kings Bench or from any Iustice of the Kings Bench or from any Iustice of peace of that County where he is commorant to discharge the same suerty of peace wil neuertheles vrge that partie against whom the same warrant is granted to find new suertie for the peace he may refuse to giue it And if the said officer will therupon vnder the color of his warrant commit him to prison the party imprisoned may haue an action of false impris against him for the the said warrrant is discharged by as great authoritie or greater as it was made and the thing for the which it was made is effected The forme of which Supersedeas graunted by a Iustice of the peace is this viz Thomas Denton Miles Buck. vnus Iusticiariorum dn̄i Regis nunc ad pacem in Comitatu p̄dicto conseruandum assignatur Vicecomiti comitatus praedicti A Supersedeas for the peace Nec non cibus singulis Balliuis Constabularijs ceterisque dicti dn̄i Regis ministris tam infra libertates quam extra in eodem Con̄i Salutē Quia A. B. de Poundon in com̄ praedict ' Laborer venit corā me in venit sufficientē securitatur qd'ipse comparebit ad proximā generalē Sessionē pacis in com̄ praedicto tenend ' Et quod ipse interim pacē dicti
himselfe he may commaund them vpon paine of imprisonment to surcease 5. H. 7. 6. or else he may with his weapon part kéepe them asunder and call and procure others likewise so to doe And then he may carrie them before a Iustice of peace to find suertie of the peace which if they refuse to doe he may commit them to prison 3. H. 4. 9. or els the Constable may take suerties of them by Obligation to kéepe the peace And if any of the offendors doe flée into a house 13. Ed. 4. 9. the said officer may breake open the dores and arrest him and so he may doe if the offendor doe flée into another Countie for that the arrest is for the benefite of the commonweale And likewise if any of the said officers shall learne that certaine persons be fighting or quarreling in a house in such sort that they are like to breake the peace or that a man and a woman be in a house together committing addultery or fornication 7. E. 3. 10. 1. H. 7. 6. he may breake open the dores and arrest them to come before a Iustice of peace to find suertie of the peace or otherwise if he will he may commit any of the said offendors to prison And if any of the parties to an affcay haue receiued any daungerous wound then the officer must arrest the offendor and carrie him to a Iustice of peace 22. Ass p. 56 who is eyther to commit him to prison or to let him to mainprise vntill the next Gaole deliuery that it be knowen whethir the partie wounded will liue or die thereof or els the officer himselfe may commit him to prison vntill the same be knowen 38. Ed. 3. 6. for if the partie wounded doe die the offence wil be felony If the common voice and fame of the County be that C.D. hath committed a felony any of those officers that doe suspect him thereof may arrest him for it And so he may search within the limits of his authority for any persōs suspected of felony for it is a chiefe parte of the Constables dutie to preserue the peace and represse felons And if any of the officers before mentioned do arrest an offendor or any person suspected for any of the causes aforesaid who ought to be carried to the Gaole or before a Iustice of peace the same officer néede not carrie him presently to the Gaole 22. Ed. 4. 35. or before the Iustice but he may put him in the stocks or some other safe custody for a time vntill he can prouide sufficient company to assist him to conduct the same offendor to the Gaole or to the Iustice 2. Ed. 4. 9. Or if the partie arrested be so sicke diseased or wounded that he cannot be presently carried without daunger of death the officer may stay him vntill he be recouered 85 But the peace of the Realme hath béen so precious to all ages Euery able person is a Conseruator of the peace and Treasons Felonies assaults batteries and other forcible violences and offences so odious that the Lawes and Statutes of the Realme and the wisedome of our forefathers haue made and appointed besides the Magistrates and officers before mencioned all sortes of able persons in some sort and to some purposes preseruers of the peace intending that as all the members of the common weale doe taste swéet comfort and pleasant repose by the benefit of peace so they should be all partakers when néede requireth of the paines to maintaine and continue the same peace and to punish the transgressors thereof Sta. 3. E. 1. 9. And therefore by the Statute of Westm̄ 1. it is ordained That all men generally shall be ready at the commaundement and summons of the Shirifes and at the crie of the country to pursue and arrest felons when néede shall be aswell within fraunchises as without and they that will not and be thereof attainted shall make a grieuous fine to the King Sta. 3. Ed. 1. By the statute intituled Officium Coronatoris it is enacted That vpon all Homicides Burglaries men slaine or put in great daunger huy and crie shall be leuied and euery man shall follow the huy and crie and the offendors steppes if it may be and whosoeuer doth not and is thereupon conuicted shall be attached to appeare before the Iustices of Gaole deliuerie St. 5. E. 3. 14. By the Statute of Anno 5. Ed. 3. it is established That if any man suspect lewd persons then termed robertsmen wasters or drawlatches of any manslaughters felonies or robberies be it by day or night they shall incontinently be arrested by the Constable of the towne and if it be within franchise deliuered to the Bailifes of the franchise and if in guildable to the shirife and kept vntill the comming downe of the Iustices of Gaole deliuerie who shall procéede to the deliueraunce of them St. 17. R. 2. 8. By the Statute of 17. R. 2. it is defended to all the Kings people aswell Lords as others that none shall make assemblies Riots or Rumors against the peace And if any such assemblie be begun as soone as the Shirife and other Ministers may haue knowledge thereof they with the strength of the country shal disturbe such offendors and put them in prison vntill the law be executed vpon them And all Lords and other liege people of the Realme shall be attending with all their strength and power to the Shirifes and Ministers aforesaid St. 2. H. 5. 8. By the Statut of An̄ 2. H. 5. it is prouided That the Kings people being able to trauaile in the Countie where Riots assemblies or routs against the law be shal be assistant to the Iustices Commissioners Shirife or vndershirif of the same Countie when they shall be reasonably warned to ride with the said Iustices Shirife c. in aide to resist such Riots Routs and Assemblies vpon paine of imprisonment and to make fine and ransom to the King St. 15. R. 2. 2 By the Statute of 15. R. 2. it is ordeined That if the Shirife or any other of the Countie doe not attend vpon a Iust of peace to arrest such offendors as doe make forcible entries into lands or tenements he or they so offending shall be imprisoned and pay a fine to the King Sta. 1. M. 12. By the Statute of An̄ 1. M. it is established That if any person being aboue the age of xviij yeares and vnder the age of lx being able to serue and not sick lame or impotent shall be required by any Iustice of peace or any Shirife of any County where any vnlawfull assembly of xij persons or aboue shall be to do any vnlawfull act prohibited by that statute or by any Maior Bailife or other head Officer of any Citie Borough or towne corporat or by any other by the commaundement of any such Iustice Shirife Maior c. to go with him or them to suppresse the
case of felony Relieuing them which be assembled 35 If any wife or seruant of any of the same persons 1. M. 12. or any other person whatsoeuer shall willingly and without compulsion bring send deliuer or conuey any money harnesse artillerie weapon meat bread drinke or other victuall to any person or persons so beeing assembled as is aforesaid during such time as he or they shall so be assembled or be together as is aforesaid then euery wife seruant or other person so bringing or conueying c. any of the foresaid things to the same persons so beeing assembled together in forcible manner or to any of them and not departing to their houses or dwelling places vpon request or commandement made vnto them as is aforesaid shall bee adiudged a felon shal suffer execution of death as in case of felonie Vnlawful assemblies aboue two and vnder twelue 36 If any persons aboue the number of 2. and vnder the number of 12. 1. M. 12. beeing assembled together shal intend goe about practise or put in vre with force of armes vnlawfully of their owne authoritie to murder kill or slay any of the kings subiects or to ouerthrowe cut breake or cast downe or dig vp the pales hedges ditches wall or other closure of any parkes or parke or other ground inclosed or the bankes of any fish-pond or poole to the intent that the same or any of them from thenceforth should remaine open not inclosed or void or to haue common or way in the same parks or parke or other grounds or ground inclosed or in any of them or to destroy any parkes or parke or fish-pond or poole or any warrens or warren of conies or any doue-houses or to pul or cut down any house barne or mil or to burne any stacke of corne or graine or to alter defaulke or abate the rents or yearely value of any mannors lands or tenements of any of the Kings subiects or the price of any victual corne or graine or any other thing vsuall for the sustenance or apparell of men and being required or commanded by any Iustice of peace or the sherife of the countie or by any mayor bailife or bailifes or other head officer of any citie or towne corporat where such assembly shall be had by Proclamation to be made in the Kings name to retire or returne to their habitations places or houses and they so required by such proclamation shall not so do but after that shall in forcible manner in forme aforesaid attempt to do or put in vre any of the things last aboue mentioned then euery of the same persons beeing aboue the number of two and vnder the number of twelue shall suffer imprisonment of his or their bodies by the space of one whole yeare without baile or mainprise The remedie of the parties grieued And also if any person or persons shall be damnified or hurt by the doing committing or putting in vre of any vnlawfull act or thing aboue mentioned then all and singular persons so damnified and hurt shall recouer and haue dammages with the costs of their suit sustained in that behalfe trebled against the offendors therein 1. M. 12. 37 If any persons aboue the number of two shal vnlawfully of their own authoritie assemble together to the intent with force and armes to do practise Raising of power to suppresse vnlawful assemblies or put in vre any of the things aboue mentioned Then it shall be lawfull to euery Iustice of peace to euery Sherife in any countie beeing within the K. dominions and to euery mayor bailife and other head officer of any citie or towne corporat for the time he shall be in office or any other person or persons hauing the K. commission or Letters from his highnes as wel to raise and assemble the kings louing subiects in maner of warre to be arraied in such great number as he or they then shall thinke meet or able to the intent by violence of strength to suppresse apprehend and take the said persons that shall bee so vnlawfully assembled And if the said persons so vnlawfully assembled after such cammandement or request by proclamation made shal continue together and not endeauour themselues to returne towards their habitations houses or places from whence they came in as short time as they may conueniently Then it shall be lawful to euery I. of peace sherife and also euery mayor bailife and other head officer of any citie or town corporat to euery other person hauing authoritie as is aforesaid after such commandement or request by proclamation made and to such persons as shal be assembled with any Iustice of peace or sherife or with any mayor bailife or other head officer of any citie or town corporat and with euery other person hauing authoritie as is aforesaid to suppresse apprehend take those persons so vnlawfully assembled which after such proclamation made shall continue together and not endeauour thēselues to returne towards their habitations c. And if the said persons so vnlawfully assembled together or any of them shall fortune to be killed slaine maihemed or hurt in or about the suppressing or taking of them then euery such Iustice Sherife Maior c. and euery other person hauing authoritie as is aforesaid and all and singular persons by him or them assembled shal be frée discharged and vnpunishable as well against the king as against all and euery other person and persons of for or concerning the killing maiheming or hurting of any person or persons so vnlawfully assembled that shall be killed slaine maihemed or hurt about or by occasiō of taking or suppressing of thē c. 1. M. 12. 38 All and euery Copieholder and Customary holder being a yeoman artificer husbandman A copieholder being required refuseth to serue or labourer being of the age of xviij yeares or more vnder the age of lx years not sicke impotent lame maihemed neither hauing any other iust or reasonable excuse or cause to the contrary and beeing required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commission or letters c. they declaring their said authoritie or being required by the immediat Lord or Lords of whom such copie or customary holds then shall be holden to serue the King for any the causes aboue rehearsed and refuse so to doe shall only during the life of such person or persons so refusing forfeit to his Lord or Lords of whom such copie or customarie holds then shal be immediatly holden should be holden during the life of such person or persons so refusing in case he had not refused all their copie customarie holds And it shal be lawful to euery such Lord c. his heirs or assignes of whom such copy or customary holds shal be immediatly holden should haue bin holden in case that such persons or persons had not so refused to enter
and euery the heire and heires of all and euery the offendor and offendors in any the cases aforesaid and all and euery person and persons 1. M. 12. bodies politicke and corporat their heires successors and executors and euery of them other than such person and persons onely as shall be attainted conuicted and outlawed of any the foresaid offences of felonie shall haue hold enioy all such right title entrie interest leases possessions rents conditions profits and aduaÌ„tages as they or any of them shall or of right ought to haue in or to any mannors lands rents reuersions seruices or hereditaments whatsoeuer or in or to any part thereof in as large manner to all intents as if such attainder had neuer beene had any thing in this act c. notwithstanding c. Sauing to euery person and persons bodies politicke and corporate and their successors their liberties and franchises in such maner as if this act had neuer beene made Procuring others to offend 46 If any person or persons doe moue stirre 1. M. 12. or procure any person or persons to commit any of the offences in this Act specified then euery such person and persons which shall procure stirre or mooue any person or persons so to offend shall suffer such punishment by imprisonmeÌ„t without baile or mainprise as is before expressed in this Act against counsellors of such offendors Vnlawful assemblies by xl or aboue 47 If any persons to the number of fourtie or more 1. M. 12. shall assemble together in forcible manner vnlawfully and of their owne authoritie to the intent to execute doe or put in vre any of the things aboue specified or to doe any other felonious or rebellious act or acts and so shall continue together by the space of three houres after proclamation shall bee made at or nigh the place where they shall be so assembled or in some market towne thereunto next adioyning and after notice to them giuen thereof Then euery person so willingly assembled in forcible manner and so continuing together by the space of three houres after such proclamation made and notice thereof giuen shall bée adiudged a felon A lieutenant shall not appoint a deputie 48 No lieutenant that shall bee made by authoritie or colour of this Act 1. M. 12. or for to execute this Act shall constitute vnder him or in his place any deputy nor shall call or appoint to appeare before him by the onely authoritie of lieutenancie or of commission of lieutenancy any person for any cause or matter whatsoeuer saue onely for the causes and matters expressed in this Acte and for none other Aiding of the offendors after the offence 49 No person or persons shall bee put to any losse forfeiture paine 1. M. 12. or punishment of life land or goods as accessorie to any person or persons that shall commit any of the offences contained in this act for receiuing comforting or aiding of any such offendor after such act committed or done 1. M. 12. 50 No attainder or conuiction of any person or persons The attainder of those offences no corruption of blood for any offence or offences herein contained shall be any corruption of blood betwixt the offendor and any of his auncestors or such person or persons as should haue beene heire to such offendor if no such attainder or conuiction had béene had sauing to euery person and persons bodies politicke and corporat c. their liberties and franâ—â—â—ses in such manner as if this Act had neuer beene made ⧠Of Force forcible Entries and forcible retayning of possessions Vnlawfull force an enemy to peace 1 FOrce and violence executed without warrant of Law be so méere contrarie to the peace and justice of the Realme as disobedience is to loyaltie and contempt to gouernment for whosoeuer doth make a Forcible entrie into lands in the possession of an other doth secretly reuolue in his mind and distrust to himselfe that there is no Law in the Realme to redresse his wrong or no ministers to execute the same and therefore he will sit in iudgement of that cause himselfe and take into his owne hands the distribution of justice and assume into his possession by the strength of his arme what the phantasie of his head shall resolue to be his due whereas the Law in conuenient time would truely satisfie him whether the land in question by the rules of justice be his or not and also assigne him a milde and calme course to recouer all his whole dutie with valuable damages for the time he is iniured And because this force and forcible entrie into lands is so opposite and méere repugnant to the peace and justice of the Realme and tendeth so much to the dishonour of the King and his Crowne and the discredit of the Law that any person by byrth and oath deuoted to the obedience of the King and his Lawes should presume of his owne authoritie by force and strong hand to resist them both and as it were in contempt of them violently to intrude himselfe into an other mans possession before the law hath decided his title therein Therefore the wisedome of the Realme hath by the space of many generations first prouided to restraine those forces and forcible Entries and next to inflict condigne punishment vpon them which were offendors therein Whereupon by a Statute made AnÌ„ 5. There shal be no forcible entry into lands R. 2. the King defended St. 5. R. 2. 7. that none from thenceforth should make any Entrie into any lands and tenements but in case where entrie is giuen by the Law and then not with strong hand nor with multitude of people but only in a peaceble course maner And if any from henceforth do the contrary and thereof be duely conuict he shall be punished by imprysonment of his bodie and thereof ransomed at the Kings pleasure 2 But for that the said Statute of 5. R. 2. did giue no spéedie remedie to those which were expelled out of their lands or tenements nor assigned any speciall persons to suppresse the said disorder Therefore by an other Statute made AnÌ„ 15. St. 15. R. 2. 2 R. 2. it was further ordained The penaltie of forcible entrie into lands or benefices That when any such forcible entrie shall be made into lands or tenements or into any Benefices or offices of the Church and the complaint thereof come to the Iustices of the peace or any of them that the same Iustices or Iustice take sufficient power of the County and go to the place where such forcible entrie is made if he or they find any that holdeth such place forcible after such entrie made they shall be taken and put into the Gaole there to abide conuict by the record of the same Iustices or Iustice vntill they haue made fine and ransom to the King And all they of the Countie aswell the Shirife as other
breue nobis remittentes Teste c. S. Manasse c. 7. When the Shirife or Iustice or Iustices of peace to whom the foresaid writ is directed hath caused thrée proclamations to be made according to the purport of the said writ then he or they may enter and make search in the house houses or place suspected and search whether there bee any force of armour or weapons worne borne or vsed against the said proclamation or otherwise he is warranted by the said writ to inquire thereof by a Iurie And if any such armour or weapons be found he must imprison the offendors and seise and praise their armour and weapons so found with them to the Kings vse And if vpon the proclamation they doe depart in peaceable manner then he hath no warrant by the writ to commit them to prison But by this writ the Shirife or Iustices haue onely authority to remoue the force but not to put the party expelled in possession againe What shal be said to be force 29 Because I haue written of force forcible entry and forcible detaining of possession it is conuenient that I should somewhat declare what the law doth accompt to be force and what acts and in what manner done to be forcible This forcible entry or forcible detaining of possession which the statutes before rehearsed do prohibite must be done with some weapons either offēsiue or defensiue as with swords bucklers pykes iauelines bills clubs pitchforkes staues halberts bowes arrowes crossebowes gunnes harneys casting of stones or blocks pouring of hot coales scalding water or lead or with any other thing wherewith one man may hurt the person of another Force by number of seruants And further if a man doth enter vpon the possession of another 10. H. 7. 11. or doth kéepe a possession taken with more seruants or attendants then he doth cōmonly maintaine it is force and it shal be adiudged in him a forcible entry or a forcible detaining of possession And so it is if diuers do come with bowes bills gunnes or other weapons to a ground or to a house and enter without the disturbance of any this is an entry by force for the words of the statute of 5. R. 2. be Sta. 5. R. 2. 7 That none shall enter with multitude of people but only in a peaceable manner And in like sort if a man doe enter peaceably into a house Force by nūber of weapōs and after doth bring into the same more weapons then he and his ordinary family do commonly vsually weare besides those weapons that he doth find in the house whereof hée must make no vse to defend his possession it is a forcible detaining of possession And moreouer if complaint be made to a Iustice of peace that one hath entred forcibly into a house and doth detaine the same with force and the said Iustice of peace doth goe thither and findeth the dores shut and him or those within denying him to enter this is a detayning of possession with force though there be no weapon shewed or vsed and though there be but one person within the house for in this case the offendor doth vse the dore as his buckler to keepe the possession If the Iustice of peace doe find in the house any great number of people or any persons in harneis or hauing harneis lying by them this is a detainer with force Wherefore in all the cases aforesaid the Iustice of peace may take the power of the County breake open the dores commit the offendors to prison 11. Ass p. 25 And if a man do mowe reape sheare or sickle corne or grasse or by such other labor which cannot be done without the hands of man wherunto he hath no title this shal be adiudged an entry disseisin with force If a man do kéepe his beasts by force in another mās seueral ground 27. Ass p. 30 claiming common therein whereas he hath no common there this is a disseisin of the land by force 30. Ass p. 50 And if a man do enter into the possession of another mans land and after doth fell or lop wood there this is a disseisin by force If a man do enter into another mans house or land 11. H. 4. 16. disseise or expel him thereof after doth carry away certaine goods of the disseisées this is a disseisin with force arms and the disseisor shal be imprisoned for it 16. Assis p. 7. 14. Ass p. 18. 12. H. 4. 22. 22. Ass p. 33. 30 A woman couert may commit a disseisin with force Who may cōmit a forcible entry and be imprisoned therfore and so may an infant of the age of 18. yéeres or aboue commit a disseisin by force be imprisoned But if he be of tender age he shal not be adiudged a disseisor with force nor be imprisoned 31 Though force being opposed against the law What force is lawfull to the persons of mē is a professed enemy to the peace of the Realme yet being vsed in the maintenance of the law it is a principall protector of the same peace for the law doth put the sword of iustice into the kings hand to protect himselfe and euery of his subiects from the violēce and oppression of others and to relieue each one that hath iust cause of complaint and thereby to yeeld him peace Wherefore force is to be resembled to fire which being abused may consume the whole house and being wel guided is a meane to yeeld sustenance and comfort to euery person therein And so force may be lawfully vsed by all the kings Officers Ministers and Subiects thereunto deputed with the helpe of all others to assist them when need shall require to execute or aduance iustice or the iudgements of the Law It is lawfull force wherby all offendors in Treason Felony other great crimes be apprehended 7. E. 8. 16. caried to prison brought to their answers receiue condigne punishments inflicted vpon them for their offences It is lawful force wherby the Shirife his Vndershirife Baylifes or Deputies doe with strength apprehend any person by vertue of the kings writs to answere or satisfie the purport of the same writs St. 8. H. 6. 9. It is lawfull force whereby Iustices of peace doe remoue those vnlawfull Entries or vnlawfull detainings of possession which one man doth make into another mans land contrary to the Laws and Statutes abouesaid and whereby they doe put him againe in possession who was wrongfully disseised or expelled thereof And it is lawfull force which Iustices of peace Shirifes Coroners Constables Tithingmen Headboroughes Boroughholders al other charged and authorized to preserue the peace together with their assistants deputies or assignées shall vse in apprehending or committing to prison such as doe attempt to disturbe or breake the peace within their iurisdictions or being commanded wil refuse to put in sufficient sureties for the keeping of
of the Iurors and that the Iuror in respect thereof doth beare an extraordinarie affection and is to make a recompence to the same partie and that therefore in this triall hée will fauour him and be a meane of Periurie and therefore if the Iuror be challenged for that cause he shall be drawen And some doe affirme the same cause of challenge and feare of Periurie to be 7. H. 6. 40. 19. H. 6. 66. if a Iuror hath béene godfather to either of the parties to that triall or to any childe of his 14 The Lawe expecting to be satisfied per Veredictum Iuratorum of the trueth of such causes as doe come to an issue dooth carefully foresée that those Iurors who are to deliuer the trueth by their verdict Periurie suspected in respect of ignorance of the cause should either before the time of the triall vpon their owne priuate knowledge or by their Euidence at the time of the triall be certainely informed of that trueth of the thing in question lest by ignorance mistaking falshoode for trueth they should slide into Periurie And because those that be dwelling or haue some land where the land lease or thing in question doth lie are more likely to haue intelligence of the trueth of the cause in question both to satisfie themselues and informe their Companions than other strangers of the same Countie are who dwell farre off the Lawe hath ordained by the Statute of Anno 27. Elizab. That there shall be sixe sufficient Hundredors impannelled vppon euery Issue ioyned which is to be tried in any of the Courts of the Kings Bench Stt. 27. El. 6. Common Pleas and the Exchequer Want of Hundredors or before the Iustices of Assise in all cases where euerie Iuror by the auncient lawes of this Realme ought to haue fortie shillings of fréeholde at the least And that at or vppon the triall of any personall action there shall two sufficient Hundredors at the least appeare And for that cause if in those cases there be not so many Hundredors at the least the Lawe doth conceiue they be ignorant of the truth of the Issue in triall And to that end for the auoiding of Periurie she will reiect the whole Iurie if they be challenged And so it is in an Assise where the plaintife is to be put in possession per Visum Iuratorum if he recouer or in any action where the Iurie is to haue the view of the land in question 8. Ed. 3. 69. Fitz. Chall 102. 169. if the same Iurors Want of the view or some of them had not the view of the land in question nor did know it before the Lawe will suspect that they will commit Periurie if they should be sworne séeing they be ignorant of the land and know it not in specie And therefore vpon challenge they shall be remooued 1. R. 3. 4. 15 Because our Law-makers haue in seuerall ages found by experience that nothing is a greater motiue enticement Periurie in respect of pouertie or rather inforcement to Periurie than néede and pouertie Therefore they haue endeuoured by many Statutes to prouide that such as be returned of Enquests should not onely be men of good behauiour and credite but also of conuenient liueliehoode estate and abilitie to liue of themselues for that Necessitie which hath no lawe nor bridle should not compell them to sell truth for rewardes nor to plunge themselues into Periurie for bribes And for the preuention of this Periurie in poore persons and such as bee of meane and weake estate Stt. 21. Ed. 1 by a Statute made Anno 21. Ed. 1. it was ordained That no Shiriffe Vndershiriffe or Bayliffe of Libertie shall put in any Recognisaunces of Assises Iuries Enquests or Attaints Iurors impanelled that shal passe out of their owne Counties that shall passe out of their proper County any person of their Bayliwickes except he hath lands and tenements to the yearely value of a hundred shillings at the least or that shall passe within the Countie except hée hath lands to the yearely value of xl s. And for the same cause vpon the same reason of preuention of periurie in poore and néedy persons by a Statute made Anno 3. H. 5. it was established St. 3. H. 5. 3 That no persons shall be admitted to passe in any enquest vpon triall of the death of a man or in any enquest betwéene partie and partie in plea reall or in plea personall whereof the debt or dammages declared do amount to xl Markes if the same person hath not lands and tenements of the yerely value of xl s̄ aboue all charges so that he be challenged for that cause by the party But by the Statute of An̄ 23. H. 8. St. 23. H. 8. 13. euery person being the Kings naturall subiect borne which by the name of a Citizen a fréeman Iurors to try felonies in corporat townes or any other name doth inioy the liberties of any Citie borough or town corporat where he dwelleth being worth in goods to the cléere value of xl li. shall be admitted in triall of Murders and felonies in euery Sessions and gaoles of deliuery kept in and for the libertie of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this Act extendeth not to any Knight or Esquire dwelling abyding or resorting in or to any such citie borough c. And by the Statute of An̄ 27. Eliz. it was enacted Sta. 27. El. 6. That in all cases where any Iuror to bee returned for the triall of any issue or issues ioyned in any of the Courts of the Kings Bench common Pleas the Exchequer or before Iustices of Assise by the Lawes of the Realme now in force ought to haue estate of fréehold in lands Where Iurors must haue 4. li. land tenements or hereditaments of the cléere yerely value of xl s̄ in euery such case the Iurors that shal be returned shall euery of them haue estate of fréehold in lands c. to the cléere yearely value of foure pounds at the least out of auncient demesne within the Countie where the issue is to be tried By the Statute of 11. H. 7. it is prouided St. 11. H. 7. 21. That no person shal be impannelled summoned or sworne in any Iury or Enquest in Courts within the citie of London Iurors in London except he be of lands tenements goods or cattels to the value of xl Markes And no person shall be impannelled summoned or sworne in Iuries or Enquests in any Court within the said Citie for lands or tenements or action personall wherein the debt or dammages amounteth to the summe of xl markes except he be in lands tenemēts goods or cattels to the value of one hundred marks St 19. H. 7. 13. By the Statute of Anno 19. H. 7. it was ordained That euery of the xxiiij persons dwelling within the shire where any riot
or Elegit or by Action of Debt against euery person of the petit Iurie so forfeiting and against his Executors and Administrators hauing then sufficient goods of their said Testator not administred And euery of the said petit Iurie shall seuerally make fine by the discretion of the Iustices before whom the said false Serement shall be found after their seuerall offences defaults and sufficiencie of them And those of the petit Iurie so attainted shall neuer be after of any credit nor their oath accepted in any court And if a false verdict be giuen in any action suit or demaund before any Iustice or Iudge of Record Attaint wher the thing doth not extend to xl l. of any thing personal as debt trespas and other like which shall be vnder the value of xl pounds then the partie grieued shall haue an Attaint And if the petit Iurie be attainted then euery of them shall forfeit fiue pounds to the King and the partie after the forme aforesaid and also shall make fine by the discretion of the Iustices And euery person that may dispend fiue markes by the yeare of fréehold out of auncient demesne or is worth an hundred markes in goods is able to passe in the same Attaint 18 The Law doth so hate Periurie and so much endeauour to extirpate the very roote thereof that shée doth sometime punish it in the onely will and intention of a man though that will neuer come to effect so that the same will and meaning may bée laid open vnto her The meaning to commit periurie punished by due proofe as it appeareth by a braunch of the before specified Statute of Anno 11. Hen. 7. St. 11. H. 7. 21. whereby it is ordained That if it be found by the graund Iurie that the petit Iurie haue giuen a true verdict in any of the courts of the citie of London in a suit whereupon an Attaint is brought then the graund Iurie shall haue authoritie to inquire if any of the petit Iurie hath receiued any summe of money or other reward or promise of money or other reward of the named defendants or tenants in the same Attaint or of any other person by the commandement couin or assent of any of them for the intent of their verdict giuing whereupon the same Attaint is grounded And after any such corruption by the said graund Iurie found Decies tantuÌ„ then the Iuror that is so found defectiue in taking money or rewards c. shall pay to the plaintife named in the said Attaint tenne times the value of the summe or other reward so taken or promised and shall suffer imprisonment without Baile or Maineprise sixe moneths or lesse by the discretion of Mayor and Aldermen of the said citie and shall bee disabled for euer to bée sworne in any Iurie before any temporall Iudge And such defendant and tenant in the same Attaint shall pay to such vse as other penalties bee forfeited within the same citie tenne times the value of the summe of money or other reward by him so giuen to any of the said petit Iurie and shal be imprisoned without Baile or Maineprise during sixe moneths or lesse by the discretion of the said Mayor and Aldermen And in like sort St. 34. E. 3. 8 38. E. 3. â—2 and for the same cause the Statutes of Anno 34. Edw. 3. 38. Edw. 3. were prouided whereby it was enacted That if any Iuror sworn in Assises or other Enquests to be taken betwéene the King and the partie or betwéene partie and partie doe by himselfe or any other take any thing of the plaintife or defendant to giue his verdict and thereof is attainted at the suit of the partie which will sue for himselfe or for the King or of any other person entring his plaint by Bill immediately before the Iustices before whom the Iurie was sworne the said Iuror shall pay tenne times so much as he hath receiued Decies tantuÌ„ And all those which bee Imbraceors Imbraceors to lead and procure such Enquests in the Countrie to make a gaine and profit thereof shall be punished as the Iurors And if the Iuror or Imbraceor so attainted haue not wherewith to make recompence in forme aforesaid he shal be one yeare imprisoned which imprisonment shall not be pardoned for any fine and the partie grieued may haue his action before other Iustices if hée will But no Iustice or other officer shall inquire of office vpon any of the points of this Statute but onely at the suit of the partie and of others as aforesaid By which foresaid Statutes it doth appeare that the Law doth punish Periurie not onely in such Iurors as doe commit it but also in those persons who bée the Imbraceors Perswaders or Procuters of it and not onely in those who doe commit or procure it but likewise in those who giue or take rewards to haue it done though it bée neuer effected for shee accounteth that when a man hath giuen his heart leaue for a reward to bée sworne it is the reward he respecteth in his oath and not the truth of the cause which reward will lead him blindfold into the dungeon of Periurie and therefore hee deserueth to be punished as a periured person S. Maintenance c. 6. 19 Because diuers did resort to Iurors in Wales and the Marches thereof and suborned them to acquit Murderers Felons and Accessories openly knowns St. 26. H. 8. 4 therefore by a Statute made Anno 26. H. 8. it was enacted That forthwith vpon the charge giuen to any Enquest to bee taken and sworne before any Iustices Steward Lieutenant or other officer within Wales or the Marches of the same of for or vpon any Trauerse against the King or the triall of any Recognizance broken or any other forfeiture forfeited to the King or of for and vpon the triall of any Murderer felon or accessorie of felonie or murder an officer shall be sworne for the kéeping of the same Iurors And if the same Iurors doe acquit any such felon murderer or accessorie vpon whose triall they shall be charged or giue any vntrue verdict against the King vpon the triall of any Trauerse Recognizance or other forfeiture The punishment of periurie committed by an enquest in Wales contrarie to the good and pregnant euidence ministred to them by the persons sworne before the said Iustice Steward Lieutenant or other officer Or that the said Iurors or any of them doe eate drinke or speake to or with any person or persons than to such as be sworn with them or otherwise misdemeane themselues after they be sworne and before they haue giuen their verdict Then the Lord President or other of the Councell of the Marches for the time béeing vpon notice or complaint thereof to be made shall not onely haue authoritie to call such Iurors before them but also the same Iusticiar Steward or other officers afore whome any such acquitall vntrue
or meanes of any others or by his owne act consent or agréement shall wilfully and corruptly commit any manner of wilfull Periury Periury committed by witnesses for Bankrupts by his deposition to be taken before the said Commissioners or the greater part of them as is aforesaid Then the party or parties so offending and all and euery person and persons that shall vnlawfully and corruptly procure any such vnlawfull wilfull and corrupt Periurie shall or may therefore be indited in any of the Kings Courts of Record and after his or their conuiction thereof shall incurre such forfeiture and receiue and haue such paines and punishment as are limitted by the statute made concerning Periury St. an̄ 5. El. 9. Anno 5. Eliz. 9. Co. li. 5. f. 99 28 A man cannot be indited for Periurie vpon the foresaid statute of 5. Periury committed vpon an indictment of Riot El. for giuing false euidence on his oath to the Enquest at a Sessions vpon an Indictment of Riot For the statute was ordained against procurers of Periurie in a matter depending in suit and variance by any Writ Action Bill Complaint or Information and so procurement of Periurie vpon an indictment is out of this braunch of the said statute And the second braunch of the same statute touching committing of Periury shal haue the same construction which the first hath though it be not there in words and shall haue reference to the first And it shal be expounded as if the words of the statute had béene If any person shall wilfully and corruptly commit any wilfull Periurie in any cause depending in suit by any Writ Bill Action c. And the same law is if a man commit wilfull Periury Periury vpon an indictment of Felony vpon euidence giuen to the great Enquest vpon an indictment of Felony he is not to be punished by force of the foresaid statute of Anno 5. Eliz. Periury in prouing a suggestion for a prohibition 29 If wilfull Periurie be committed in the Kings bench 7. 8. Eliz. Dyer 243. by any witnesse produced to proue a Suggestion for a Prohibition there graunted against an Ecclesiasticall Iudge according to the statute of 2. 3. E. 6. St. 2. E. 6. 13 whereby the party is staied of this consultation this shall not be examined and punished in the Starre chamber for the statute of 3. H. 7. St. 3. H. 7. 1 which maketh mention of such things as the Court of Starre chamber is to hold plea of prouideth no more punishment by speciall words for Periurie then it doth for Murder or Rape There is a prouiso in the foresaid statute of Anno 5. El. That the Lord Chancelor and others of the Qu. Counsell shall and may procéed in the punishment of all offences in such wise as they might haue done and vsed to do before the making of the said Act to all purposes so that they set vpon the offendors no lesse punishment then is contained in the said Act. 30 A Bill of Periurie may be sued in the Chancery for a periurie committed in the same Court A suit vpon periury in the Chancery contrary to the foresaid statute of Anno 5. 12. El. Dy. 288. El. and if the defendant do plead vnto it not guilty he shall be sworne to his plea and also shall answer to Interrogatories as it is vsually done in the Starre chamber for the L. Chauncellor had absolute power before the said statute of Ann̄ 5. El. to punish Periury And therefore by a prouiso in the said statute his power therein is not restrained by the same statute And if the Court of Chauncery will examine Periury committed there it must be done by a bill in Latin and pleaded in Latin and the issue shal be ioyned there and tried in the K. Bench as it is vsed in the like cases Where periury shal be punished in the tēporall court where in the spirituall 31 There is no remedy or punishment for Periurie in a spirituall Court against indictors that do endite a man of felony which be periured 22. H. 8. Kel 39. or against a Iury which doth giue a false verdict betwéene party and party And if a suit be commenced in the spirituall court against an offendor in Periurie in either of those cases he may haue a prohibition for this periury doth rise vpon a cause that is temporall viz. the Treason or Felony Debt Trespas or plea of land and for this periury the offendors shall be punished by attaint by the common law or otherwise And so it is if a man be defamed by a false indictment there is no remedy in the spirituall Court for his defamation for that it groweth vpon a matter which is temporall But where the Periury doth rise vpon a matter which is spirituall as vpon a Testament Matrimony or Legacie or such like then the spirituall Iudge hath authority to punish it and in that case a Prohibition will not lie And as there is no punishment in the Ecclesiastical Court for Periury that doth rise vpon a cause that is temporall So the Law hath prouided Co. lib. 4. 20 that defamation Defamation which is another euill fruit of a malicious and corrupt heart and of a leud and venomous tongue shall not be punished in the Ecclesiasticall Court vnlesse it concerne matter that is méerely spirituall and determinable in the Ecclesiasticall Court as to call a man Hereticke Schismaticke Adulterer Fornicator c. and vnlesse it doth concerne matter that is méerely spirituall onely For if such a defamation doe concerne any thing that is determinable at the common Law the Ecclesiasticall Iudge shal not hold plea thereof And yet if such a defamation be méerely spirituall and onely spirituall notwithstanding he that doth sue in the Ecclesiasticall Court for being defamed cannot sue there for recompence or dammages but only for the punishment of the offence ⧠Maintenance Champertie Embracerie and Buying of Titles MAintenance is where a man giueth to another that is demaundant What maintenance is the enormities thereof or tenant plaintife or defendant in any suit or to any other in his behalfe or to his vse any summe of money or other reward for to maintaine his plea or suit Or otherwise vseth persuasion or maketh labour for him or vseth other meanes to countenance aid or assist him when he himselfe hath nothing therewith to doe Which is an offence that the wisdome of the Realme from age to age hath condemned and hath indeuored to inflict diuers punishments vpon the transgressors therein as it may appeare by the statutes of West 1. West 2. 28. Ed. 1. 33. Ed. 1. 8. H. 6. 19. H. 7. 32. H. 8. 18. El. The law doth so greatly desire the continuance of peace betwéene one member of the Commonweale and another so much condemneth variance suits without cause that many times and in many causes the plaintife is amerced
the land or thing in variance so it is Maintenance to take part in any quarrell depending in suit in the Kings court or to worke any fraud whereby iustice may be hindered Westm 1. 3. E. 1. 28. as it appeareth by the statute of West 1. whereby it is ordained That if any Clerke of the kings or of any Iustice The penalty for maintaining of suits do receiue the presentment of any Church for the which any plea or debate is in the K. Court without the kings speciall licence he shal loose the Church and his seruice And if any Iustices or Shirifes Clerke take part in any quarrell depending in the Kings Court or doe worke any fraud whereby common right may be delayed or disturbed he shall loose his seruice and be further punished if the Trespas doe require St. 32. H. 8. 9 And after by a statute made Anno 32. H. 8. there was a greater penalty imposed vpon those who shall be maintainors of suits By which statute it was ordained That no person or persons whatsoeuer shall vnlawfully maintaine or cause or procure any vnlawfull maintenance in any action suit demaund or complaint in any of the Kings Courts of the Chauncerie Starre-chamber White hall or elsewhere within any of the K. dominions of England or Wales or the marches of the same where any person or persons haue authoritie by vertue of the K. Commission Patent or Writ to hold plea of lands or to heare examine or determine any title of lands or any matter of witnesse concerning the title right or interest of any lands tenements or hereditaments Or shall vnlawfully retaine for maintenance of any suit or plea Retaining for maintenance or imbracing or suborning of Iurors any person or persons or embrace any fréeholders or Iurors or suborne any witnesse by letters rewards promise or by any other sinister labour or meanes for to maintaine any matter or cause or to the disturbance or hinderance of iustice or to the procurement or occasion of any manner of Periurie by false verdict or otherwise in any of the Courts aforesaid vpon paine of forfeiture for euery such offence x. pounds to the king and Inf. to be recouered by him that will sue for the same in any of the kings Courts of Record by Action of Debt Bill Plaint or Information wherein no W.E.P. c. if the suit be commenced in any of the kings Courts within one yeare next after any such offence committed or els not 10 As it is Maintenance to haue by agréement part of the land in variance or part of the gaines of the suit in question so is it Maintenance to buy a pretenced right or title of another of or to lands or tenements whereof the seller hath no possession for this oft times the cause of Subornation of witnesses procurement of Periurie and of the subuersion of iustice For the redresse whereof by the last specified Statute of Anno 32. H. 8. St. 32. H. 8. 9 it was first enacted That all Statutes heretofore made concerning Maintenance Champertie and Embracerie or any of them then standing in force should be put in due execution according to the effects of the same And also by the same statute it was ouer that ordayned Maintenance by buying of pretēced titles That no person or persons of what estate degrée or condition soeuer he or they be shall bargaine buy or sell or by any meanes obtaine get or haue any pretenced rights or titles or take promise graunt or couenant to haue any right or title of any person or persons in or to any Manors Lands Tenements or other Hereditaments but if such person or persons which shall so bargaine giue graunt couenant or promise the same their auncestors or they by whom he or they claime the same haue béene in possession of the same or of the reuersion or remainder thereof or taken the rents or profites thereof by the space of one whole yeare next before the said bargaine couenant graunt or promise made vpon paine that he that shall make any such bargaine sale promise couenant or graunt shall forfeit the whole value of the Lands Tenements or Hereditaments so bargained sold promised couenanted or graunted contrary to the forme of this Act. And the buyer or taker thereof knowing the same shall also forfeit the said value of the said Landes Tenements or Hereditaments so by him bought or taken as is aforesaid the one halfe of the said forfeitures to be to the king and the other halfe to the party that will sue for the same in any of the kings Courts of Record by Action of Debt Bill P. or I. c. wherein no W. E. P. or I. c. if the suit be commenced by A. B. P. or I. in any of the kings Courts within one yeare next after any such offence committed or els not Prouided alwayes The possessor purchaseth a pretenced title That it shall be lawfull to any person or persons being in lawfull possession by taking of the yearely ferme rents or profites of any Manors Lands Tenements or Hereditaments to buy obtaine get or haue by any reasonable meanes the pretended right or title of any other person or persons to be made to of or in any such lands tenements or hereditaments whereof he shal be so in lawfull possession Any thing in this Act c. notwithstanding 22 23. El. Dyer 374. 6. Ed. 6. Dy. 74. Plow Com̄ 87. 11 If a man take a lease or promise a lease for the terme of certain yéeres to another of land contrary to the foresaid statute of Ann̄ 32. H. 8. What is selling of a pretenced title viz. of those lands whereof neither he himselfe nor any of his auncestors nor any by whō he doth clayme the same land haue béene in possession of the same nor of the reuersion nor remainder thereof nor taken the rents or profits thereof by the space of one whole yeare before the said bargaine graunt and demise made he is within the danger of the foresaid statute of Anno 32. H. 8. as well as if hée had made an estate for the terme of life in taile or in fée simple of the same lād for that the scope and effect of the statute is vtterly to root out of Maintenance and bargaines and promises of Titles for the which the words of the statute be That no person shall sell or buy any pretenced rights or titles And a lease is no more lawfull for one yeare then for an hundred yeares and some man will be as ready to maintaine to haue a lease for yeares as to haue a greater estate Wherefore he that doth make a lease for yeares or make promise of a lease for yeares of lands whereof he hath but a pretenced right or title shall forfeit to the King and him that will sue the whole value of the inheritance of the land as well as if he had bargained and sold the fée simple thereof But
it is specially to bée respected in that case that he hath but a pretenced right or title at the time of his Lease made for if he hath a good title in the same land at the time of the said Lease then is he not within the danger of the said Statute though neither hée himselfe nor any of his auncestors nor any by whom he doth clayme the same land haue béene in possession thereof nor of the reuersion or remainder thereof nor haue taken the rents or profites thereof by the space of one whole yeare before the said Lease made For if a man doe enter into lands that be holden of him for an alienation in Mortmaine Or if hée doe recouer lands by a reall action hée may sell the same land or make a Lease of the same land within a yeare after the Entry or Recouerie though neyther hée nor his auncestors nor they by whom hee claymeth the same land haue béene in possession thereof nor taken the Rents or Profites thereof by the space of one whole yeare before Br. Maint 38 6. E. 6. And so it is if a man doe morgage his Land for diuers yeares vpon condition of repayment of money at a certaine day or vpon any other condition If after hée doe redéeme his Land hée may sell it or Lease it within one yeare after though he hath not béene in possession thereof nor taken the Rents or Profites thereof by the space of many yeares before For the meaning of the Statute is not to restraine the bargaining buying or selling of good and cleare Rights but of pretended Righs and Titles And this pretenced Right or Title is What is a pretenced title when one man is in possession of Lands or Tenements and another man who is out of possession of them doth clayme them or doth sue for them for hée is not aptly sayd to haue title to land who is in possession of the same And therefore if he that is out of possession of land doth bargaine sell or make any Agréement Couenant or Promise to depart from the same land or to make any assurance thereof after hée shall recouer the said Land hee is within the danger of the said Statute whether he hath a good title to the same land or not And so it is if one who hath a pretenced Right or Title to copyhold Lands doth bargaine and sell it to another Co. lib. 4. 26 he is within the compasse and danger of the foresaid statute of Anno 32. H. 8. For the words of the statute be If any doe bargaine buy or sell c. any right or title in or to any lands or ténements So that those words any right or title doe extend to all manner of rights or titles and consequently to copyhold lands And séeing a great part of the land of the Realme is graunted by copie Therefore the meaning of the makers of the said Statute of Anno 32. H. 8. was to include them for the auoiding of Suits Maintenance and Champertie and not to leaue all copyhold estates to the mischiefes mentioned in the preamble of the sayd Act. Maintenance by giving of Liueries and retaining 12 Giuing of Liueries Badges Signes and Tokens and retayning of vnnecessarie seruants is an euill budde springing out of the foresayd Branch of Maintenance being put in practise by men of great countenance authoritie and estate and it hath béene from age to age accounted a meane to stirre vp quarrels to boulster Suites to procure Periurie and to subuert iustice And therefore the chiefe Gouernours of this Realme haue endeuoured by many Acts of Parliament to represse or snibbe it as by the Statute of Anno 1. R. 2. 7. Hen. 4. it was ordained St. 1. R. 2. 7. 7. H. 4. 14. That if any person shall giue any Chaperons Hats or such like Liueries to any man for maintenance of quarrels or other confederacies he shall forfeit an hundred shillings for euery such Liuerie and he which receiueth such Liuerie shall forfeit fortie shillings And by the statute of 8. H. 6. it was enacted Sta. 8. H. 6. 4 That if any person of his owne authoritie and proper costs doe buy or weare for his clothing any Clothes or Hats called Liueries of the sort or suit of any Lord Ladie Knight Esquire or other person to haue supportation succour or maintenance in any quarrell or in any other matter and being therof lawfully conuict he shall forfeit fortie shillings and be one yeare imprisoned And by the statute of Anno 1. H. 4. it was prouided St. 1. H. 4. 7. That if any which is a Knight or Esquire meniall of the Kings or who is of his retinue to whom his Maiestie shall giue his honourable Liuerie doe weare his said Liuery in the countrey or Countie where he is resiant or dwelling or in any other place of the Realme out of the Kings presence sauing in going or comming from the Kings house and is thereof duly attainted he shall loose his Liuerie and forfeit his fées for euer And by the statute of Anno 8. Ed. 4. it was established Sta. 8. E. 4. 2. Sta. 1. H. 4. 7. That no person by himselfe or any other for him shall giue any Liuerie or Badge or retaine any person other then his meniall Seruant Officer or learned man in the one Law or in the other by any writing oath or promise And if any doe the contrary hee shall forfeit for euery such Liuerie or Badge giuen an hundred shillings And he which doth retaine or take of any other such oath writing or promise or is retained by Indenture shall forfeit an hundred shillings for euery moneth that any person is so retayned with him by Oath Writing Indenture or Promise And euery person which is retained by Writing Indenture Oath or Promise for euery moneth that he is so retained shall forfeit an hundred shillings But this act shal not extend or be preiudiciall to any Gift Graunt or Confirmation made of any Fée Annuity Pention Rent Lands or Tenements by the King or any others to any person or persons for their counsell giuen or to be giuen or for their lawfull seruice done or to be done and for no other vnlawfull cause or vnlawfull intent although the person to whom such gift graunt or confirmation is made be not learned in the one law or the other Neither doth it extend to any libertie giuen at the Kings or Quéenes coronation or at the instalment of any Archbishop or Bishop or erection creation or mariage of any Lord or Lady of estate or at the creation of any Knights of the Bathe or at the commencement of any clerke in an Vniuersitie or at the creation of Serieants of the law or giuen by any Fraternitie Guild or Mysterie corporat or by the Maior Sherife or other chiefe Officer of any Citie Borough Towne or Port of this Realm of England for the time being during that time for the executing
request his opinion of them whether they will serue to defend his title in the cause in suit and the partie doth affirme them to be good and sufficient in law to iustifie and maintaine his cause this is vnlawfull maintenance in that person who giueth this counsell for by this meanes the partie may be encouraged to prosecute or defend a suit which the law will not warrant him to effect Co. li. 1. 177 And if L. being a man that is not learned in the law will publish that B. hath good right and title to the Mannor of D. wheras in truth B. hath no good right title thereunto but C. hath the onely right title to the same in this case because L. hath taken vpon him the knowledge of the law and intermedled in a matter wherin he hath nothing to do C. may haue an action vpon the case against the said L. for slandering of his title and shall recouer his damages against him and his ignorance of the law will not excuse him 33 In an Action of Maintenance the plaintife declared Maintenance by an Atturney That the defendant maintained one B. in the court of L. in an action of Couenant 36. H. 6. 37. which the plaintife brought against the said B. in the same court Whereunto the defendant pleaded That he was retained to be the Atturney of the same B. in the said suit which the plaintife did prosecute against him by force wherof he came to a man learned in the law by the commandement of the said B. his client and desired him to be of counsel with the said B. and gaue him his fée of the money of the said B. the which is the same maintenance And this was adiudged maintenance iustifiable for when an expert and learned man is Atturney for another he is to do all lawfull things which he can touching that suit for the benefit of his client with the priuitie or direction of his client as in retaining of learned counsell suing forth of originall or iudiciall proces procuring a Iurie to be impanelled Kel fol. 50 13. H. 4. 19. and returned by the Sherife by obtaining a Supersedeas for his client when cause doth require it and he may giue euidence to the Iury vpon the tryall of his clients cause and also he may request any of the Iurors impanelled for the triall of the said cause to appeare for the spéedy end of the said suit 34. H. 6. 26. But neither the same Attourney who is retained for that only cause nor a generall Attourney that is constituted by any person in al his causes according to the stat of West 2. St. 13. E. 1. 10. may do any vnlawfull thing in his clients behalfe as to giue or promise money or other reward of his owne or his clients to a Iuror 11. H. 6. 10. to giue his verdict for his client or to threaten him if hée doe otherwise or to defend or offer to defend his clients cause at his owne charges or to procure the Sherife to returne a Iurie at his denomination for the tryal of his clients cause for in all these cases last specified the maintenance is vnlawfull and punishable for he cannot do them as an Attourney but as a straunger a maintainor and of his owne wrong And if a man do maintaine a suit by an Atturney 22. H. 6. 24. an action of Maintenance doth lye against the Master Maintenance in a Sherife or his bailifes And if the Sherife of any Countie his Vndersherife or any Bailife do any of the things aforesaid 13. H. 4. 19. in any suit prosecuted betwéene partie and partie other than impanell a Iury and summon them to appeare at a day time prefixed by the kings writ it is vnlawfull maintenance in him 22. H. 6. 35. 34 In an action of Maintenance the defendant pleaded Maintenance in respect of neighborhood That he whō it is supposed that he maintained is his neighbour and that hee came vnto him and told him that the plaintife had procured a Capias to arrest him therefore praied the defendant to giue him counsell what he were best to doe and hée this defendant aduised his said neighbour to goe to London and to yéeld his bodie to the Iustices and to procure a Supersedeas which is the same maintenance whereupon the action is brought And this was adiudged no vnlawfull maintenance but a neighbourly and friendly counsell which euerie person may giue to another For if a husbandman or any other doe come to his neighbour and tell him that a stranger doth owe him money or doth detaine his goods from him and request his counsell that neighbour may aduise him to bring an action of Debt or Detinue against the same straunger 12. Ed. 4. 14. 19. Ed. 4. 3. Or if one neighbour shall tell another that hée hath a cause to put in suit and desire that hee will instruct him what learned man in the law he doth know to whom he may repaire for counsell his neighbour may informe him of such one as hee taketh to bee learned and also may goe with him to that learned man and bee present when he doth retaine him of his counsell and open his case vnto him and also hee being a meane man and of small countenance or authoritie in the countrey may goe to the barre and stand by him at the tryall of his cause in question but if that neighbour shall giue any money to the counsellor to be retained with his neighbour or shall giue any money or other reward to the Sherife or Vndersherife or to any Bailife to arrest the other partie in his neighbours behalfe or to answer his suit then is it vnlawfull maintenance in him and hee is by action of Maintenance to bee punished therefore Where the master may maintaine his seruant 35 In an action of Maintenance brought by A. against B. the plaintife declared 31. H. 6. 8. that where he brought another action before against C. the said defendant did maintaine the same C. in the same first action whereunto B. the defendant pleaded That the same C. is his seruant retained in his seruice for one whole yeare and therefore he retained one M. an Apprentice of the law to be of counsell with the said C. his seruant and paid the said M. his fee with part of the wages due to the said C. which was the same maintenance and this was adiudged a good plea in barre and lawfull maintenance 22. H. 6. 35. 9. H. 6. 64. 28. H. 6. 12. 19. Ed. 4. 3. 19. H. 6. 30. for it is lawfull for the Master to request a man that is learned in the law to be of counsel with his seruant in his suit and to pay the same counsellor his fée with part of the wages of his said seruant and to goe with his seruant to the barre at the tryall of his cause in question which the
That all recoueries to be had or prosecuted by agreement of the parties Recoueries against particular tenants by Couin to defraud him in the reuertion or by Couin against any tenants by the Curtesie of England Tenants in taile after possibilitie of issue extinct or otherwise onely for the terme of life or liues or of estates determinable vpon life or liues of any lands Tenements or hereditaments whereof the same particular Tenant is or shal be seised of any such particular estate as is aforesaid or against any other with Voucher ouer of any such particular Tenant or of any hauing or that had right or title to any such particular estate or tenancie as is aforesaid shal as against such person or persons to whom any reuersion or remainder thereof by force of any Conueyance or deuise before that time had or made shall ought or lawfully may appertaine and against their heyres and successors be vtterly voide Prouided alwaies that this Act shall not extend to any person or persons that shall by good title recouer any lands tenemēts or hereditaments without fraud or Couin by reason of any former right or title But al euery such recouerie and recoueries vpon former rights and titles shall stand and be in like force as they were before the making of this Acte And in all and euerie recouerie and recoueries to be had or prosecuted of any lands tenements or hereditaments by the assent and agreement of any person or persons to whom any reuersion or remainder thereof then shall or ought to appertaine so that the same assent and agréement doe appeare of record in any of the Kings Courts shall stand in like strength and of like effect against such person and persons that shal so assent and agree their heyres successors as they were before the making of this act 27 And for that Couin and fraud should be restrained and punished when it shall be put in practise or intended by those in reuersion to defeate their Lessees of their termes for yeares as it was by the aforesaid Statutes when it was executed by particular Tenants to the preiudice or disheritance of them in the Reuersion Couin by him in the reuersion to defeate his Lessee for yeeres Therefore by a Statute made Anno 21. H. 8. Stat. 21. H. 8. 15 Stat. 6. E. 1. 11. it was enacted That if any persons doe make leases of their lands tenements or other hereditaments by Indentures or without writing to other persons for terme of yeares if after the same Lessors their heires or assignes do cause or suffer recoueries to be had against them in the Kings or any other Lordes Court vpon fained and vntrue title by craft and Couin to put the said Termors from their Termes all such Termor shall and may falsifie for his terme only such recouerie in such wise and forme as a tenant of fréehold shall may doe by the course of the cōmon law where such tenant was neither priuie nor party to such recouerie And the same Termors their Executors assignees notwithstanding such recouerie so had shall enioy retaine and hold their said termes according to their said leases against all such recouerors their heyres and assignees And the said recouerers their heyres and assignees after such recouerie so had shal haue like remedy against the said termors their Executors and assignees by auowrie or action of debt for the rents and seruices reserued vpon the same leases being due after the same recoueries also like actions against them for waste done after the same recoueries so had in like manner and forme as the said Lessors should or might haue had if the same recoueries had neuer beene had No manner of Statute of the Staple Couin to auoide a Statute or recognisance statute marchant nor execution by Elegit shal be auoided by meanes of any such feyned recouerie but all persons hauing any lands tenements or other hereditaments in execution or being intituled to haue execution of any lands or tenements by any such meanes shal haue like remedie to auoide and falsifie the same recouerie as before is prouided for the lessee for terme of yeares 28 There haue beene many lawes and Statutes deuised from age to age to restraine and punish seueral sorts of deceits Couins collusions and frauds but most to encounter and checke fraudulent deeds cōtriued of malice or guile to defeate Stat. 50 Ed. 3. 6. 1. R. 2. 9. 2. R. 2. 3. 3. H. 7. 4. 13. El. 5. 27. El. 4. delay or hinder others of their lands leases goods cattels debts c. as it appeareth by the statute made A. 50. Ed. 3. 1. R. 2. 2. R. 2. 3. H. 7. 13. El. 27. El. But as deceit and fraud increased in this realme so new penalties and greater punishments were inuented from time to time to inflict vpon the transgressors therin And because fained couenous and fraudulent Feoffmēts gifts graunts alienations conueyances bonds sutes iudgements executions of lands and tenements goods and cattels being deuised of Couin guile to defraud creditors and others of their iust and lawful actions dets c. be not only to the let of the due course and execution of law iustice but also to the ouerthrow of all true and plaine dealing bargaining and cheuisance betweene man and man without the which no common weale or ciuill societie can bee maintained or continued Therefore by a Statute made A. 13. El. it was enacted Stat. 13. El. 5 Stat 29. El. 5. That all and euery Feoffment gift graunt bargaine alienation Fraudulent deeds to auoide other mens debts and duties and conueyaunce of lands tenements hereditaments goods cattels or of any of them or of any lease rent common or other profite or charge out of the same lands hereditaments goods c. or any of them by writing or otherwise And all and euery bond sute iudgement and execution at any time had or made sithence the beginning of Queen Elizabeths raigne or at any time hereafter to be had or made which haue beene and are deuised contriued of malice fraud couin collusion or guile to the intent c. to delay hinder or defraud creditors others of their iust lawfull actions sutes debts accompts damages penalties forfeitures hariots mortuaries or reliefes shal be taken deemed onely as against that person his heires executors successors or assignes whose actions sutes debts accoūts c. by such guileful couenous or fraudulēt deeds deuises practises as is aforesaid are shall or mought be in any wise disturbed hindered delaied or defrauded to be cléerly void of none effect any colour fayned cōsideration expressing of vse or any other matter to the cōtrary notwtstanding And al euery the parties to such fained or fraudulēt feoffment gift graunt alienation bargaine conueyance bond sute iudgement execution Parties to fraudulent deedes c. or being priuie and knowing of the same or any of them which
heices c. the other moitie to the party grieued which will sue for the same at any time during the said suit or within one yeare after the same cause discontinued or decréed and in his default of such suit to him or them that will sue for the same by originall writ B. P. or I. in the Kings Court of Starre-chamber or in any of his Courts of Record at Westminster in which suit by B. P. or I. no W. E. P. S. P. or any other delay shall be admitted The Clerkes duty Prouided neuerthelesse That it shal be lawfull for the Clerke to take for his paines for writing of euery such report or certificat twelue pence for the first side and two pence for euery side after and no more vpon paine to forfeit tenne shillings for euery penny taken ouer and aboue the said summes to be had and recouered as aforesaid Extortion in the shirife coroner other officers 3 For that the kings of this Realme haue allowed to their Officers from time to time sufficient Salaries to maintaine them according to their estates and degrées to the intent that they should not otherwise extort any thing from their subiects but such fées duties as the auncient customes laws or statutes of the realme did allow them Therfore by the statute of West 1. it was ordained That if any shirife coroner St. 3. E. 1. 26 or other officer of the kings do take any thing to execute his office but only that which the king alloweth him he shal render double to the party and shal be punished at the kings pleasure St. 3. E. 1. 29 4 To preuent extortion in certaine Officers of the Iudges Extortion in a Serieant Crier or Marshall of a Iudge by the same stat of West 1. it was enacted That if the Serient Crier or Marshall of any Iustice do wrongfully take mony of any which doth recouer land obtaine his suit leuie a fine or prosecute any suit touching any plea of the Crowne he shal be punished at the kings pleasure and yéeld treble damages to the party grieued And if hée be a Serieant of fée his Office shal be seised into the K. hands But in an attaint 29. Ass p. 13 if the plaintife be nonsuit euery of the petit Iurie shall pay xij d. to the Marshall and be discharged 5 To eschew extortion which in some cases before had béen committed by some Coroners St. 1. E. 1. 10. St. 1. H. 8. 7 first by the stat of anno 3. E. 1. Extortion in a Coroner and after that by the stat of anno 1. H. 8. it was established That a Coroner vpon request made to him to come and inquire vpon the view of any person slaine drowned or otherwise dead by misaduenture the same Coroner shall doe his office diligently vpon the view of the bodie of euerie such person or persons without taking any thing therefore vpon paine to euery Coroner that will not endeuor himselfe to doe his Office as is aforesaid or that hée taketh any thing for dooing of his Office vpon euerie person dead by misaduenture for euerie time fortie shillings 27. Ass p. 14 And vpon the said statute of Anno 3. Ed. 1. two Coroners were indicted of Extortion for that they had taken of some of the K. people halfe a mark at seuerall times contrarie to the foresaid stat and their othes and therefore they paid a fine to the King 6 Because the Sherife of euerie Countie is a great and necessarie Officer in the Commonweale and vsed as a speciall instrument to the furtherance of iustice in all suits pursued at the common law and his seruice is imployed in the beginning prosecuting and ending of the most of them therefore as the law hath alwayes had a speciall regard of him and foreséene that he shall be a man of wisedome of worth of credit countenance and ability and that he shall be allowed a conuenient stipend and salary for his pains in most cases so doth she carrie a vigilant and watchfull eye vpon him and his inferiour Officers or Substitutes knowing what grieuous oppressions might ensue if she should leaue a man of his authoritie and necessarie imployment at libertie to diue at his pleasure into other mens purses and to take what hee would and therefore she hath restrained him his Vndersherife Bailife of Franchise and other Bailife within certaine lists and assigned them what they shall take for Arrests Attachements Mainprises letting to Baile and seruing of Executions which if any of them do cxcéed he shall forfeit the penalties hereafter expressed and be adiudged an extortioner Extortion in Sherifes Vndersherifs Bailifes As appeareth by the stat of An. 23. St. 23. H. 6. 10. H. 6. whereby it was ordained That no Sherife Vndersherife Bailife of Franchise nor any other Bailif by occasion or vnder colour of his Office shall take any other thing by themselues or by any other person to their vse or to their profit of any person by any of them arrested or attached nor of any other for them for the omitting of any arrest or attachement to bée made by their bodies or of any person by any of them by force or colour of their office arrested or attached for fine fée mainprise letting to bayle or for shewing any ease or fauour to any such person so arrested The fées of the Sherife for arrests c. for their reward or profit but such as followeth viz. The Sherife xx d the Bailife which maketh the arrest or attachement iiij d. the Gaoler if the prisoner be cōmitted to his ward iiij The Sherifes duetie for the making of a copie of a Panel d. The Sherife Vndersherife Sherifes Clerke Steward or Bailif of Franchise seruant to the Bailife or Coroner shall not take by colour of his office by himselfe nor by any other person to his vse any thing of any person for making of any returne or panell and for the copie of a panell iiij d. No Sherife nor none of the officers aforesaid shall take or cause to be taken or made any obligation by colour of their office but onely to themselues of any person nor by any person which shall be in their ward by course of the law but in the name of their office and vpon condition written that the said prisoners shall appeare at the day of the said writs bils or warrants and in such places as the said writs bils or warrants shall require And if any of the said Sherifes or other officers aforesaid take any Obligation in any other forme by colour of their offices it shall be void And he shall take no more for making of any such obligation The Sherifes c. forfeiture for extortion warrant or precept by him to be made but iiij d. And all Sherifes Vndersherifes Clerks Bailifes Gaolers Coroners Stewards Bailifes of Franchises or any other Officers or Ministers which doe contrarie to
lesse without award of the Kings Court he shall make fine according to the quantitie of the trespas and neuerthelesse sufficient amends shal be to them which haue receiued losse by such distresse Distraining out of his fee. Or if one do distrain another to come to his Court which is not of his fée or vpon whom hee hath no iurisdiction by reason of his Hundred or Bailiwike or doe take a distresse without his fée or the place where he hath iurisdiction or bailiwike hee shall make fine according to the quantitie of his offence Excessiue distresse Or if one do take any vnreasonable excessiue distresses which is grieuous and more than the quantitie of the debt or damages this is an oppression an he shall be amerced 41. Ed. 3. 26 29. Ed. 3. 23. As a man auowed the distraining of 200. shéepe and 16. beasts for ij pence rent and he was amerced therefore for all that he tooke aboue vj. shéepe were adiudged an oppression and so vnlawful But if a man distraine for homage 28. Ass p. 50 42. Ed. 3. 26. Co. li. 4. 8. Fitz. Na. Br. 178. 27. Ass p. 51 28. Ass p. 50 the distresse cannot be too excessiue how many beasts soeuer he doth take for that homage is not valuable though for rent fealtie and other seruices it may be excessiue And in like sort Oppression by often distresse if the Lord of a Mannor or any other who hath rent issuing forth of certaine land do distraine the tenant of the same land diuers times for rent or seruices where none is behind vnpaid this is an oppression of the same tenant who is distrained for in this case the partie who claimeth this rent cannot distraine for rent séeing none was due to him but his distresse is onely taken to vexe the tenant of the land and so to oppresse him And therefore the sayd tenant may haue an Assise of Souent foits distresse against the same Lord and recouer dammages of him according to the losse he hath receiued by the same distresses viz. for not plowing or for not manuring his land Lib. in t 82. Co. li. 4. 8. or for taking no profit thereby But it is otherwise if the same seuerall distresses were taken for homage Seueral distresses for one thing And so it is if a man do distraine for rent or seruices or for any other thing Fit Nat. Br. 71. and depending a suit betwéene the parties for the same rent seruice or other thing he who did distrain doth distrain again for the same rent seruice or thing for the which he did distrain before the beasts or goods of him whose hée did first distraine this is an oppression of him whose goods be twice distrained For the redresse whereof hée may haue a writ of Recaption A writ of Recaption against him who so did distraine his goods twice for one cause whereby hée shall recouer dammages for his second distresse And also hée that did take the same distresse shall make fine to the King for his oppression and wrong though the first distresse were lawfully taken yea and though the rent or seruice for the which he did distraine were behind vnpayed or vndone séeing by the first distresse the cause being prooued true and lawfull hée might haue had returne of the goods or cattell which hee did distraine vntill hée had béene satisfied of the rent seruice or thing for the which hée did distraine But a man may distraine the cattell of him who bée eating of his corne or grasse Distresses for damages for t or doing any other hurt in his ground 47. Ed. 3. 7 so often as he shall find them doing hurt therein and it is no oppression or wrong so to do for he doth not distraine twice for one cause as in the former case but distraineth seuerall times for seuerall new offences 4 And euerie Trespasse which the law doth interpret to bee iniuriously committed vi armis may also fitly be termed an oppression for it is done vpon the offendors owne wrong without warrant of law St. 5. R. 2. â— As if one person doe enter vpon anothers land expell him out of the possession therof whereas his entry is not giuen by the law or doth enter with strong hand or multitude of people Fitz. Tresp 13. 45. 234 20. H. 6. 22. 9. Ed. 4. 28. 9. H. 6. 64. 21. H. 6. 5. 21. Ed. 4. 18. 9. Ed. 4. 29. 10. Ed. 4. 4. 21. Ed. 4. 4. 1. H. 7. 10. 37. H. 6. 36. 21. H. 7. 1â— 11. H. 4. 64. 20. H. 6. 14. 3. H. 6. 12. 10. H. 6. 16. 43. Ed 3. 13. 4. Ed. 3. 48 47. Ed. 3. 22 43. Ed. 3. 35 1. H. 5. 1. and not in peaceable manner this is an oppression And so it is Oppression by Trespasses if one person doe pull downe breake or impaire anothers house or any part thereof Or if one person doe fell cut downe or carrie away the Timber Trées or Wood of another Or if one person doe fell cut tread downe or carrie away the corne or grasse of another Or if one person doe with his cattell depasture feed or eat the corne grasse or hay of another Or if one person doe take and carrie away the money plate iewels houshold-stuffe cattell corne hay or any kind of goods of anothers Or if one person doe plough till eyre or digge the ground or soyle of another Or if one person doe mayme imprison wound or beat another or doth mayme wound or beat the seruant of another whereby he looseth his seruice Or if one person doe hunt chase or hawke in the frée Warren of another or doe take kill or destroy his game there Or if one person doe fish in the Pond Poole Mildam Stew or other seuerall fishing of another Or if one person doe breake the doue-house of another or destroy the flight of the doues of another Or if one person doe digge the Myne of Tinne Lead Stone Coale Grauell Sand Matle Chalke c. of another Or if one person doe pull vp take away the meerestones which by consent haue béen set betwéen his own ground and anothers In all and euerie of which cases the partie grieued may pursue an Action of Trespasse against the offendor and declare that hée committed any of the said offences vi armâ—s wherein if the defendant be attainted hée shall pay to the plaintife his dammages sustained and to the King a fine for that he hath done an oppression to one of his subiects and made an offence to the law Fit Nat. Br. 183. 4. Ass p. 3. 5 Euerie Nusance which one person doth to the land of another Oppression by Nusances wherein the owner hath an estate for the terme of life in tayle or in fée simple may also bée accounted an oppression for those Nusances be put in practise by the offendors onely will and by his owne open playne and manifest
the time of his loane he meant to offend And therefore the stat of 13. Eliz. 8. hath wel prouided that the same stat of 37. H. 8. shal be most largely strongly cōstrued for the repressing of vsurie and against all persons that shal offend against the true meaning of the said statute by any way or deuice directly or indirectly Oppression by cutting out the head or pipe of a conduit Oppression by burning a cart laden Oppression by cutting off eares Oppression by barking of trées 30 It is an oppression and manifest and palpable iniury if any person do wilfully maliciously and vnlawfully cut or cause to be cut out the head or pipe of any conduit of any other persons Or burne or cause to be burned any wain or cart laden with coales or any other goods or any heape of wood of any other persons prepared felled for making of coales billet or Tallwood Or to cut or cause to bee cut out the tongue of any tame beast being aliue of any other persons Or to cut or cause to be cut off the eare or eares of any of the kings subiects otherwise then by authoritie of Law chance-medley sudden affray or aduenture Or to barke any Appletrées Pearetrées or other fruit trées of any other persons in all which cases by force of the statute of Ann. 37. H. 8. the offendor shall forfeit to the party grieued treble dammages St. 37. H. 8. 6 to be recouered by action of Trespas at the common law and to the king 10. l. for a fine 31 It is an oppression and a resolued intent to do hurt wrong to others Oppression by hawking or hunting in corn growing if any person shall hawke or hunt with his spaniels in any ground except his owne where corne or graine shall then grow at such time as any eared or codded corne or graine shal be standing and growing vpon the same or before such time as such corne or graine shal be shocked cocked hiled or copped in which cases the stat made an 23. St. 23. El. 10. El. hath ordained That the offendor shall forf for euery time that he shall so hawke or hunt without consent of the owner of the corne to such person as shal be owner of the eared or codded corne xl s̄ 32 If any person shal by day or night vnlawfully without authority break Oppression by taking of fish cut downe cut out or destroy the head or dam of any pond poole moat stagn stewe or seuerall pit wherein fish shal be put or stored by the owner thereof Or shall wrongfully fish in any of the said seuerall ponds c. to the intent to destroy kill take or steale away any of the same fish against the will of the owner or possessor thereof not hauing lawfull authority so to do this is an oppression to the said owner or possessor St. 5. El. 21 and therefore by the stat of an 5. El. it is enacted That the offendor being lawfully conuict of any of the said offences at the suit of the K. or the party grieued shall pay to the party grieued his treble damages suffer imprisonment 3. moneths find sufficient surety for his good abearing for the space of 7. yéeres or els remain in prisō without baile or main-prise vntill he hath found such surety And it shal be lawfull for the party grieued to take his further remedy against the offēdor for his losse damages and vpon satisfaction or confession of the dammages to release the offendor of the suretiship and good abearing at any time within vij yeares 33 I will draw toward an end of this title of Oppression Oppression by decaying o◠townes houses of husbandry with one of the greatest and most durable of all oppressions viz. with oppression by pulling downe of Towns houses of Husbandry and decaying of Tillage When the realme ceased to be oppressed by the long tedious ciuile warres which before were many yéeres continued betwéene the ij houses of Yorke and Lancaster and that K. Edward the fourth had ouerthrowne Q. Margaret Prince Edward her sonne at Tewksbury field setled the title of the Crowne planted peace in the Realme then some men of stirring spirits diuerting their bloudy humors to couetous humors pulled downe townes laid wast houses of husbandry thrusting forth of dores men women children cōuerting the same to their owne priuat vses which offence then daily increasing though it were but in Cunabilis being about 120. yeres sithence was so bewailed exclaimed of cried out vpon in open parliament that the same may in a sort be resēbled to the pitifull lamentation which the prophet Ieremy sitting downe wéeping made Threnae Ierem. after the temple of God the city of Hierusalē were destroyed the priests Leuits Elders slaine by Nabuchadnezzar K. of Babilon Or the same may be cōpared to those wofull miseries calamities which the prophet Esay foretold should after fall vpō the said great city of Babilon Esay 13. for as it appeareth by the stat of an 4. St. 4. H. 7. 12 St. 7. H. 8. 1. H. 7. 12. 19. 7. H. 8. 1. it was then holden That by the desolation pulling downe of houses and townes and laying to pasture land which customably hath beene manured occupied with tillage idlenesse the ground and beginning of all mischiefes doth increase men women and children that were dayly occupied and liued by the sowing of Corne and bréeding of Cattell and other increase were diminished husbandry the greatest commodity of this Realme for sustenance was decaied Churches were destroyed the seruice of God was withdrawne Christian people there buried are not praied for the Patrons and Curats were wronged Cities and market towns were brought to great ruine and decay necessaries for mans sustenance were made scarce and deare the people of the realme were sore minished the power defence therof was féebled decayed to the high displeasure of God against his lawes and to the subuersion of the Commonwealth desolation of the same Which grieuous dolefull mone made and enormities so displaied the grand counsell of this realme hauing commiseration vpon did indeuor to reforme at seuerall parliaments as appeareth by the stat of An. 4. H. 7. 12. 19. Ann. 7. H. 8. 1. An. 27. H. 8. 22. An. 5. E. 6. 6. An. 2. 3. P. M. 8. An. 5. El. 2. which said stat were all after repealed by a stat made an 39. St. 39. El. 1 El. And then by the same stat it was enacted That euery house that now hath viz. 24. die Octob. an 39 Reg. El. An. Do. 1597. Which is an house of husbandry or heretofore had 20. acres of arable land meddow and pasture or more therunto belonging and so occupied or letten to farme by the space of 3. yéeres together at any time sithence the beginning of the Qu.
that he did cause some lawfull punishment to be inflicted vpon certaine of them for their crimes notwithstanding all these or such like misdemeanors be neither Treason nor Felony by the Law but a Riot and yet in respect of the basenesse of the parties which committed this wrong of the cause for the which they put it in practise of the worthinesse of the person and of his place vpon whom it was executed of the barbarous course taken in the performance therof of the perillous exāple giuen to other malefactors these riotors deserue to bée censured with a much sharper punishment then the former For as there be no bounds obserued by leud and wicked persons of their outrages so be there no certaine means or limits assigned of their punishments but the said most honourable Court of estate may draw forth his Maiesties sword of iustice and first punish the said offences according to the particuler lawes and statutes prouided therfore and then euery person transgressing by himselfe according to the circumstance of his demerits as partly may appeare by the statute of anno 3. H. 7. St. 3. H. 7. 1. which expresseth some parts of the authority giuen to the Lords of the said Court and more by a branch of the statute of Magna Charta whereby it is enacted St. 9. H. 3. 14 That euery fréeman shall be amerced viz. punished for reasonable cause according to the quantity of his offence And further by the statute of Anno 33. H. 8. St. 33. H. 8. 1 which giueth the lords of the said Court of Starre-chamber authority to punish those who by counterfeit letters or tokens shall get other mens goods into their hands by imprisonment setting vpon the pillory or other corporall paine whatsoeuer except death ⧠Treasons 1 CRimen lesae Maiestatis What is Treason in our English tongue called Treason is a great offence done to the Maiesty of gouernement and the peace of the land which the wisdome of this Realme hath from age to age so much hated and abhorred that they haue persecuted those that were guiltie therin with most violent and vntimely death and with extreame and seuere tortures they haue ordained that an offendor therein shall be hanged and cut downe aliue that his bowels shall bée cut off and burned in his sight that his head shall bée seuered from his bodie that his quarters shall bée diuided asunder and disposed at the Kings pleasure and made food for the birds of the aire or the beasts of the field and that his wife and children shall be thrust out of his house and liuings that his séed and blood shall be corrupted that his lands and goods shall be confiscated and as by the statute of 29. H. 6. 1. it is ordained of the Traitor Iohn Cade he shall be called a false Traytor for euer And as our respectiue and considerat forefathers haue deuised to yéeld vnto those grieuous offendors Legem talionis and to teare their bodies lands and goods who doe practise to rent and pull asunder this Maiestie of gouernement by destroying the head or such as are like to be the principall succéeding members thereof or by diuiding the bodie into parts or by weakning the force and strength thereof or by subuerting the chiefe Magistrats of iustice or by counterfeiting staining or blemishing of the peculiar and royall Ensignes Cognisances and Sinewes thereof so haue they béene carefull and prouident that there should be no greater number of those dreadfull sharpe and bitter lawes than vrgent necessitie for the preseruation of that Maiestie of gouernment required And because it was in former times greatly doubted and ofttimes called in question amongst the Sages of the Realme and learned in the lawes which offences were by the common law high Treason and which not and which were petit Treason and which not and seuerall men were of seuerall opinions therein and to the intent that al future ages might know and be more vigilant to eschew the penalties thereof King Edward the third at his Parliament begun at Westminster the thirtéenth day of Ianuarie St. 25. E. 3. 2 in the 25. yere of his raign at the request of his Lords and petition of his Commons made a declaration thereof in manner as hereafter followeth viz. It is high Treason where a man doth compasse High treason or imagin the death of our Soueraigne Lord the King or of our Ladie the Quéene his wife or of their eldest sonne and heire or if a man doth deflower the Kings wife or the Kings eldest daughter being vnmaried or the kings eldest sonne and heires wife or if a man doe leuie warre against our Lord the king in his Realme or be adherent to the kings enemies in his Realme giuing to them aid and comfort in his Realme or else where and thereof be probably attainted of open deed by people of their owne condition And if a man do counterfeit the Kings great Seale or his priuie Seale or his money which offences Bracton doth terme Crimen falsi And if a man bring false money into this Realme counterfeit to the money of England knowing the money to be false Bracton de Corona cap. 3. to marchandise or make paiment in deceit of our Lord the King and his people And if a man kill the Chauncellor Treasurer or the Kings Iustice of the one Bench or the other Iustices of Eire and of Assises and all other Iustices assigned to heare and determine beeing in their places doing their Offices And it is to bée vnderstood that in the cases aforesaid it ought to bee adiudged Treason which extendeth to our Lord the King and his royall Maiestie And of such Treason the forfeiture of the escheat doth appertaine to our Lord the King as well of the lands and tenements holden of others as of himselfe And moreouer there is another manner of Treason Petit treason that is to say When a seruant killeth his Master or a wife her husband or when a secular or religious man killeth his Prelat to whom he oweth faith and obedience And such manner of Treason giueth the escheats to euery Lord of his owne fée And because many other cases of like Treason may happen in time to come which a man cannot thinke of nor declare at this present It is accorded that if any other case supposed to be treason that is not before specified doth happen of new before Iustices the Iustices shall stay without proceeding to iudgement of Treason vntill the case be declared and shewed before the King and his Parliament whether it ought to be adiudged Treason or other Felonie And in case any man of this Realme doe ride armed openly or secretly with people armed against another for to kill or rob him or to take and detaine him vntill he hath made fine and ransome to be deliuered it is not the King or his Counsels wil that in such case it shall be adiudged Treason but it shall be
life time for murder of another person And if this man had béene outlawed or otherwise attainted of Felonie in his life time this lease should haue béene forfeited to the King and the wife should haue had no part thereof P. 16. E. 4. 7 P. 9. Eliz. Dyer 262. 45 If one which is felo de se hath a debt due to him vpon a contract No forfeiture of a debt vpon a simple contract and not by specialtie hée shall not forfeit the debt to the King amongst his other goods and chattels for that the sayd debtor shall bée rebutted of his law against the King Pl. Com. 260. 262. 46 If a villeine doe giue himselfe a deadly wound A villeine felo de se and then his Lord seiseth his goods and after the Lord of the same villeine doth seise his goods and then this villeine doth dye within a yeare and a day after the wound giuen and so becommeth felo de se and after the whole matter is found before the Coroner those goods of the villeines shal bée forfeit to the King and the King shall haue them out of the Lords possession for the forfeiture shall haue relation to the wound which the villeine gaue himselfe and that was before the Lords seisure of his goods For if a man doth giue himselfe a deadly wound and dyeth thereof within a yere and a day after all the goods cattels and debts which hee had at the time of the blow giuen or at any time after shall bée forfeited to the King and in his life time hee hath no authoritie to dispose of them after the wound was giuen 4. 5. P. M. Dy. 160 47 A man was bound with two Suerties One mortgaged his goods and then became felo de se for the payment of twentie pounds at two seuerall dayes and the principall debtor for the securitie of his Suerties by his Indenture did sell vnto his sayd two Suerties twentie oxen for twentie pounds with a Prouiso in the Indenture That if hée did discharge or saue them harmelesse of the sayd Obligation of twentie pounds that then the said sale of the twentie oxen should bée void And it was agréed betwéene them that the principall debtor should haue the occupation and vse of the said twentie oxen at the will of the said Suerties and to bée vsed as his owne And after one day of paiment due to the Obligée and no money payd by the seller or principall debtor and before the second paiment was due the seller killed himselfe and became felo de se hauing those twentie Oxen in his possession and the Suerties seised the beasts as their owne And notwithstanding the propertie was in them by the not performance of the condition yet it was adiudged that the Aulmoner should haue the beasts or the money which they were sold for and then hée should discharge the Suerties against the Creditor And so the Aulmoner was awarded to haue in these beasts the best estate of the seller and the same that the Debtor might haue had if hee had payed the debt at the due times which were agréed vpon Homicide by casualtie 48 Though Homicide is most vsually knowne and termed by the killing of one man or woman or more by another man or woman or more yet hominis cedium whereof the same word Homicide is deriued may bée done by some other casualtie though when a man is slayne by some other mischaunce than by the hand or meanes of another man as by the fall of a pit of earth or stone or a trée or killed by a Beare or Bull or such like it is not aptly nor vsually sayd that Homicide is committed but that such a man is slaine 49 When a man commeth to his death by the meanes of any thing that falleth vpon him or by the meanes of a hurt which himselfe receiueth in falling from some other thing without the procurement of another man that thing which is the cause of his death shall bée forfeited to the King taken for a Deodand A Deodand and distributed in almes And it is not materiall whether the thing that killed the man was moouing or not at that time when it killed him for though it were not moouing yet it shall bée taken and accounted as a Deodand as well as if it were moouing Fitz. Cor. 403. M. 6. E. 6. Dyer 77. because all things moouing with the thing which was the cause of the mans death shall bée forfeited in like sort as the principall thing according to the old rule Omnia quae mouent ad mortem sunt Deodanda And yet those goods which bée forfeited as Deodand bée not forfeited vntill the matter be found of Record Co. li. 5. 110 and therefore they cannot be claimed by prescription And the same Iurie which doth find the death of the man must also find and appraise the Deodand A trée and the bough of another tree do kil a man 50 If a man do fell a trée Fitz. Cor. 398. and that trée falleth vpon the bough of another trée which bough falleth vpon a man and killeth him in this case both the bough that killed the man and also the trée which did fall vpon that bough shal be Deodand for they both did moue vnto and were the cause of his death Falling off a cart or from a cart 51 If a man do ride in a cart and the same cart falleth vpon him Fitz. Cor. 388. and killeth him as well the same cart as the horses that drew the cart shall be Deodands And in like sort if a man bee in a cart and by the stirring of the horses which drew the cart or any of them he is cast out of the cart and dyeth thereof Fitz. Cor. 397. Pl. Com. 323. as well the horses which drew the cart as also the cart shall be Deodands for the horses and cart béeing fastened together bée all the cause of the mans death Falling from a cart laden 52 If a man fall from a cart laden with Corne Hay Wood Fitz. Cor. 326. c. and the wheele of the cart breaketh his necke backe or c. whereby hée dieth as wel the Corne Falling from cart that is in lading Hay Wood or c. as the cart shal be Deodands But if a man do fall from a cart as he is lading of Corne Hay Wood Fi. Cor. 326 c. by the stirring of the horses and thereby breaketh his necke backe or c. whereby he dyeth the cart and horses shal be Deodands but not the corne c. for that the corne c. were not the cause of his death If a man that doth driue a cart doe clime vpon one of the whéeles of the cart Fitz. Cor. 409. to gather apples plums or c. and doe fall from that whéele and breaketh his necke back or c. whereof he dieth if it be
the appeale be fresh and the signe of truth apparant by effusion of blood or an open outcrie leuied But if it be without any manifest token or outcrie two pledges shall suffice Within what time an appeale shal be commenced 33 The before mentioned Statute of Gloucester hath ordained St. 6. Ed. 1. 9 That an appeale shall not be abated for default of fresh sute where a man doth sue within a yéere and a day after the déede done These words of the Statute be generall not making mention more of an appeale of death than of an appeale of any other felonie But yet conferring them with the other words in the statute they may be intended specialy to extend to an appeale of death and to none other appeale for if a man that is robbed doth make fresh sute 7. H. 4 44. and doe his endeuour to apprehend the felon and vse all his diligence to find him although he doe not commence his appeale two or thrée yeares after the robberie committed yet he may then well pursue it And so in appeale of robberie fresh sute shall be decided by the discretion of the Iustices H. 22. Ed. 4 39. But in an appeale of death it is a good plea for the Defendant to pleade that he of whose death this appeale is pursued died aboue a yeare and a day before the said appeale commenced 34 The words of the foresaid Statute of Gloucester be St. 6. Ed. 1. 9 That a man shall pursue his Appeale within a yeare and day after the déed done From what time the yeare shal haue relation touching an appeale And therefore if one man doe strike another vpon one day and he dieth of the same stroake certaine daies after Co. l. 4. 42 the Appeale shal be commenced within the yeare and day after the death and not within the yeare and day after the stroake giuen for there was no felonie committed vntill the man was dead But yet if one mā doe giue to another a mortall wound in Februarie and the king doth in April next giue pardon to the offendor of all felonies before that time committed Plo. com f. 401 and the partie stricken doth die of the same wound in May following How the K. pardon shal haue relation this pardon shall discharge the offendor because the wound giuen by the offendor was the cause of the felonie the which wound was the offence towards the King and that the king hath pardoned and so thereby the death of the partie and all other things depending vpon the same offence be pardoned 35 Where the words of the Statute of Gloucester be The yere shall haue relation to that offēce That a man shall pursue his Appeale within a year and a day after the deed done St. 6. E. 1. 9. Those words viz. the déed done shal be intended of the felonie whereupon the appeale is commenced for if one be accessorie to another a yeare after the homicide or murder committed 26. Ass p. 52 an appeale shal be pursued against him and yet it is not within the yeare and day after the homicide or murder committed S. Br. 52. St. 3. E. 1. 13 36 It appeareth by Britton and also by the Statute of Westminster 1. that an appeale of Rape ought to be commenced within fourtie daies after the fact done Within what time an appeal of rape shal be commenced But then Rape was but a trespasse which after by the Statute of Westminster 2. was made felonie St. 13. E. 1. 34. In which Statute of Westminster 2. there is no time limited within the which a woman shal be compellable to pursue her Appeale of Rape And therefore it séemeth she is at libertie to bring it when she will so that it be within a reasonable time 18. Ed. 3. 32 37 An appeale ought to be brought in the Countie where the felonie was committed as if it be murder or homicide In what countie an appeale shal be brought where the same murder or homicide was done But if a man be striken in one county and then goeth into another countie and there dieth of the same wound by the common law an appeale may be commenced either in the countie where the stroake was giuen A man strickē in one countie dieth in another or in the countie where the partie stricken did after die and the trial thereof shal be by the Iurors of both the counties 3. H. 7. 12. 4. H. 7. 18. viz. as well of the countie where he was stricken as of the countie where he died And so it was at the plaintifes pleasure to bring his appeale in which of those two coūties he would But since by the Statutes of Anno 2. 3. E. 6. St. 2. 3. E. 6. 24. it is ordained That where any person shal be feloniously stricken or poisoned in one countie and die of the same stroake or poysoning in another countie then an indictment thereof found by Iurors of the countie where the death shall happen whether it be found before the Coroner vpon the sight of such dead bodie or before the Iustices of peace or other Iustices or Commissioners which shall haue authoritie to enquire of such offences shal be as good in law as if the stroake or poysoning had béene committed in the same countie where the partie shall die or where such inditement shal be found And such party to whom appeale of murder shal be giuen by the law may commence take and sue Appeale of murder in the same countie where the partie so feloniously stricken or poysoned shall die as well against the principal and principals as against euery accessorie to the same offences in whatsoeuer countie or place the accessorie shal be guiltie to the same And the Iustices before whom any such appeale shall be commenced sued and taken within the yeare and day after such murder manslaughter committed shall procéede against euery such accessorie in the same countie where such appeale shal be so taken in like manner and forme as if the same offence of accessorie had beene committed in the same countie where such appeale shal be so taken as well by the triall of the Iurors of the countie where such appeale shal be taken vpon the plea of not guiltie pleaded by such offendor Accessories in other offences sauing murder as otherwise But note that no Appeale is giuen by this Statute Stamford nor remedie prouided against accessories in a forreine countie of other felonies sauing for murder or manslaughter but the same is left to the common law In what coūtie an appeale of Rape shall be brought 38 An appeale of Rape ought to be brought in the countie where the Rauishment was done And therefore if a man doe take a woman against her will in one countie and then carrie her into another countie and there doe rauish her the appeale shal be onely commenced in the
by the heire it is a good plea to plead 20. H. 6. 47. Kel fol. 120 Fi. Cor. 384 27. Ass p. 25 that he which is dead hath a wife liuing to whom the appeale is giuen or that the plaintife who supposeth himselfe to be heire is not next heire to him that was slaine but that he hath an elder brother or that he is a bastard or to plead that the plaintife in this appeale of death hath surceased his time for that the appeale was not brought within the yeare and day after the death of him who is supposed to be killed or to say 8. H. 4. 18 that he of whose death this appeal is brought is liuing at such a place or to bring the party supposed to bee slaine into the court that he may be séene and knowne to be liuing Fi. Cor. 17 11. H. 4. 14 91 In an appeale of Robbery it is a good plea to plead that the plaintife is his villaine And in appeale of Rape brought by the husband and wife Robbery Rape it is a good plea to plead neuer accoupled in lawfull marriage or to plead villenage in the plaintife In an appeale of Robberie it is no good plea for the defendant to plead in barre Co. lib. 4. 43 2. R. 3. 14 that the appellant brought an action of Trespas against him for the same goods caried away and recouered for the appeale of Robbery is of a higher nature and concerneth the life of a man 92 There be some other pleas in barre in an appeale which bee generall Generall pleas in barre in appeale and will serue for all manner of appeales of Felony Fi. Cor. 32 2 as to plead that the plaintife is attainted of Treason or Felony Or that he is a Monke a Priest not of perfect memorie dumbe deafe a lazar a naturall foole or that he is maymed by another and not by the defendant But if the plaintifes attainder bée but by Outlawrie which is erronious then his attainder is no barre but for the time Fit Vtlarie 47. viz. vntill he hath reuersed the Vtlary S. Approuers 10. 14. 93 It is a good plea in barre in an appeale The plaintife brought another appeale to say that the plaintife at another time brought an appeale of the same felony against the defendant 9. H. 4. 2. 47. Ed. 3. 16. in the which he was Nonsute or made a Retraxit Or that the plaintife did at another time pursue an appeale of the same felony against another who was attainted or acquit at his sute If a man be indicted of Manslaughter and vpon his arraignment he confesseth the felony and prayeth and hath his Clergy If after an appeale of murther be brought against the said offendor Co. li. 4. 40. 45. of the murther of the same man it is a good plea for him to plead that he was at another time conuict of the same felony And the same law is if one bring an appeale of Murther against another and the defendant pleadeth not guilty and is found guilty of manslaughter and hath his Clergy if after he be indicted arraigned of the same offence and he doth plead the former conuiction it is a good plea in barre S. Indictments 47. Fit Cor. 98. 94 It is a good plea in barre in an appeale for the defendant to plead The plaintifs release in barre that the plaintife made vnto him a Release of the same offence for it will not serue to plead a Release made to any other sauing to himselfe though the other to whom the Release is made be named with him in the appeale And in like sort though the plaintife made a Retraxit against one of them this shall not barre him against them both but the appeale shall stand good against the other 95 And when the defendant hath pleaded any of the foresaid pleas Pleading not guilty after other pleas yet in fauor of life the law doth permit him to plead ouer to the felony viz. not guilty and his plea by that means shall not be adiudged double 22. E. 4. 39. vnlesse it be in the case of a release for there he shall not be allowed to plead ouer to the felony because it is contrary to his foresaid plea Neither shall he plead ouer to the felony when the defendant in an appeale of Robbery doth plead Villenage in the plaintife for if hee should plead ouer to the felony the plaintife by that meanes should bée infranchised 28. E. 3. 91. 18. E. 3. 32 But if the Villenage be found against the defendant hee shall haue this plea of not guiltie as well as hee shall haue when he pleadeth any of the foresaid barres without concluding ouer to the felony yet notwithstanding if the barre be fouÌ„d against him he may plead ouer to the felony viz. not guilty sauing in pleading of a release for by that plea he confesseth the felony by implication Where the K. may prosecute an appeale begun by another 96 If the appellant do surcease to prosecute his appeale against the defendant the king may pursue it for the appellant may by seuerall meanes leaue off and omit to prosecute his appeale as by Nonsute Release Retraxit 3. H. 6. Fi. Cor. 3 or a woman by taking a husband during the sute of Appeale and because in all those cases the sute doth cease by the act of the party plaintife therfore in which of them soeuer it doth cease after declaration in the appeale the defeÌ„dant shall not go at liberty but shal be arraigned at the kings sute vpon the same declaration for that it doth appeare by the declaration there is a felony committed and the yeare day and place where and when the said felony was committed and the same is not yet tried and the law will not allow such great offences whereof she taketh notice to be concealed and remaine vnpunished And the same law is if the appellants appeale doe cease by the act of God 21. E. 3. 18. as if the appellant doe die Or if it cease by the act of the Law as if the appellant be hanged Or if the appellant do take the priuiledge of his Clergy Fi. Cor. 369 in which cases the defendant likewise shal be arraigned at the K. sute But in euery arraignment which is to be at the K. sute vpon an appeale begun by an appellant the declaration in the same appeale must be once good and true for if it were neuer good and abated for that cause Fit cor 1â—1 the appellée shall not be arraigned at the kings sute notwithstanding the abatement be after declaration And therefore if the appeale be abated by misnaming of the defendant 4. H. 6. 16 he shall not be arraigned at the kings sute Or if it be abated by misnaming of the plaintife or of the towne or for want of a materiall word And so it is if the defendant in an appeale doe
plead that the plaintife is outlawed 17. Ass p. 26 11. Ass p. 27 18. E. 3. 35 Fi. Cor. 3 or is attainted of Treason or Felony or otherwise is disabled to maintaine an appeale as if a woman doe bring an appeale of the death of her husband and the defendant doth plead that she and her said husband were neuer accoupled in lawfull marriage or that she hath married another husband Or that the appeale was not cōmenced within the yeare day after the offence committed Or that the appellant hath an elder brother liuing to whom the appeale is giuen Fit cor 384 387. not to the plaintife And all those matters which shal be a barre to the plaintife to bring the appeale shall also be a barre to the K. to take any aduātage against the appellée vpō the same appeal for in all these cases it may appeare that the appeale was cōmenced without cause grounded vpon false insufficient matter And the king shall be in no better condition than the appellant for the defendant is arraigned vpon the declaration of the appellant and yet it is otherwise where the Appeale was at the first grounded vpon sufficient and true matter But in all the cases aforesaid though the king can take no aduantage of the Appeale against the defendant yet he may compel him to answer to an indictment of the same felonie for that by these pleas the defendant is not discharged of the felonie though he be discharged of the Appeale S. Approuers 15. 17. 18. 19. No appeale of Treason 97 If an act which was murder felony or other offence by the cōmon law be after made treason by stat then one doth offend in the same no Appeal wil lye against him therefore for that no Appeale will lye of High or Petit Treason And therefore whereas wilfull poysoning was wilfull murder by the common law and after by the stat of 22. H. 8. 9. the same was made high treason and ordained that the offendor therein should be boyled to death which stat was sithence repealed by the stat of 1. Ed. 6. 12. 1. M. yet during the said stat of 22. H. 8. in force the sonne and heire of a man poysoned brought an appeale against a woman for poysoning her husband and because the offence was then high Treason M. 33. H. 8. Dyer 50. and no appeale will lye of Treason the appeale was adiudged not maintanable And yet by the ancient lawes of this realme as Bracton affirmeth the accusor might haue pursued an appeale of high Treason against the defendant or party accused Bracton de coron̄ c. 3 and the defendant might haue thereunto pleaded not guilty and waged battell with the accusor But that Law is sithence altered ⧠Indictments What an Indictment is 1 AN Indictment of Treason Felony Trespas or other offence is an inquisition taken and made by twelue men at the least thereunto sworne whereby they doe find and present that such a person of such a name and sirname dwelling in such a place of such a County and of such a degrée hath committed such a Treason Murther Rape Burglarie Robberie Felony Trespas or other offence at such a place vpon such a day and in such a manner against the Kings peace his Crowne and Dignitie and contrary to the Lawes of this realme and so it is an accusation by the Iury of the offendor and an information of the Court from whence they receiue their charge of his offence and of all such necessary circumstances thereof and in such certaintie that thereupon the same Court may procéed to the triall or arraignement of the party accused if he be present or otherwise may award Proces against him to appeare and to make answere thereunto if he be absent And because this Indictment and accusation doth sometime concerne the life or member of man sometime his liberty sometime his fame and credite sometime his Lands and Tenements and some other time his Goods Cattels Therefore the Law hath a speciall regard that the procéedings therein may be effected with all sinceritie and vpright dealing and doth carry a vigilant and watchfull eye not onely vpon the Iurors which are returned and sworne in those Enquests that they may be men of integritie sufficiencie and indifferencie but also vpon Shirifes and Baylifes of Liberties who haue authoritie to returne the same Iurors for she hath prouided by seuerall Statutes That they shall take no Indictments by Commissions procured at their owne sute but in their Turnes That they shall hold their Turnes St. 28. E. 3. 9 St. 31. E. 3. 14 St. 13. E. 1. 13 St. 1. E. 3. 16 and take Indictments but in conuenient and vsuall times That they shall take Indictments by twelue men at the least and then by Roll indented That they shal take their Indictments by men of good name credit and sufficient of estate St. 1. R. 3. 4 St. 1. E. 4 3. That they shall bring their Indictments and Presentments found and made in their Turnes to the Iustices of Peace of the same Countie that they may award Proces against those that be indicted and set fines vpon them That Iurors impanelled to make inquiries St. 11. H. 4. 9 shall be lawfully returned by shirifes or baylifes of Franchises without the denomination of any other person That Panels returned by the Shirife to make inquiries St. 3. H. 8. 12 St. 3. H. 7. 1 may be reformed by the Iustices and that one Enquest may be impanelled and charged to inquire of concealements of offences made by another Enquest So that the Law hath prouided that Indictments may be found by men of worth and vpon iust causes And as touching Commissions because in times past Shirifes of diuers Counties by vertue of Commissions generall Writs graunted vnto them at their owne sute for their priuat gaine did take diuers Enquests to indict people at their owne pleasures Commissions to shirifes to take indictments and then tooke fines and ransomes of them to their owne vses and after set at liberty the parties and neuer brought the same persons so indicted before the Kings Iustices to be deliuered there according to the forme of Law It was therefore by a Statute made Anno 28. Ed. 3. St. 28. E. 3. 9 ordained That all such Commissions Writs should be from thenceforth repealed and that none such should be at any time after graunted By force of which Statute the Shirife is restrained to make any inquirie by Writ or Commission The shirife may inquire of Felonies But yet by vertue of his office he may at this day make inquirie in his Turne of Felonies obseruing such orders as by the statutes hereafter limitted be expressed St. 9. H. 3. 36 2 Whereas by the statute of Magna Charta it was ordayned That no Shirife or his Baylife shall hold his Turne by Hundreds but twice in the yeare in
but only they that were taken for the death of a man by the cōmandement of the K. or his Iust or for the forest therefore by the stat of W. 1. viz. 3. E. 1. it was ordained St. 3. E. 1. 15 That prisoners which before were outlawed Who are mainpernable and who not and they which haue abiured the realm prouers and they which be taken with the maner and such as haue broken the K. prison théeues openly defamed knowne and such as be appealed by prouers so long as the prouer doth liue except he be of good fame and such as be taken for burning of a house feloniously done or for false mony or for counterfeiting the Kings Seale Or persons excommunicat taken at the Bishops request or for a manifest offence or for treason touching the King shall be in no wise mainpernable by a common writ nor without writ But souch as be indicted of larceny by enquests taken before Sherifs or Bailifs by their office or of light suspition or for petit larceny that amounteth not aboue the value of xij d. if they were not guiltie of some larceny before or guiltie of receit of théeues or felons or of commandement or force or of aid in felony done or guilty of some other trespas for which one ought not to loose life or member And a man appealed of an approuer after the death of the approuer if he be no common théefe nor defamed shal be let out by sufficient suertie whereof the Sherife will be answerable and that without giuing any part of their goods Bailement by the Sherife If the Sherife or any other let one go at large by suertie St. 3. E. 1. 1◠which is not repleuisable if he be Sherife Constable or any other Bailife of fée which hath the kéeping of prisoners and is thereof attainted he shal loose his fée and office for euer And if the Vndersherife Constable or Bailif of such as haue fée for kéeping of prisoners do it contrary to the will of his Master or any other Bailife being not of fée they shal haue iij. yeres imprisonment and make fine at the K. pleasure Withholding of prisoners repleuisable Whosoeuer doth withhold prisoners repleuisable St. 3. E 1. 15. after they haue offered sufficient suerty shal pay a grieuous amerciamēt to the K. he that doth take any reward for the deliuerance of such shall pay double to the prisoner and also a grieuous amerciament to the King 6 By the foresaid Stat. of West 1. 15. it doth appeare that in foure cases a man was not mainpernable at the common law In what cases no mainprise at the common law viz. they that were taken for the death of a man or by the Kings commandement or of his Iustices or for the forrest Touching the death of a man it is intreated of before And as concerning the Kings commandement this is intended the Kings commaundement The kings commandement by his owne mouth or by his councell which is incorporat to him doe speake with the Kings mouth and by authoritie from him Or otherwise if those words should be taken his generall commandement it may be said that euery Capias in a personall action is the Kings commandement for it is Precipimus tibi quod capias c. and yet in that case the defendant is repleuisable by the common law And as touching the Iustices commandement The Iustices commandement this shall be intended their absolute commandement for if it be their ordinary commandement he is repleuisable by the Sherife sauing in certain cases prohibited by the statute 7 Because in times past diuers persons that were indited of felonies robberies larcenies did remoue the same inditements into the K. Bench there yéelded themselues prisoners were presētly bailed by the marshals of the same Bench and after did lie in wait to kill or misuse their inditors And also for the certain persons appealed of felonie after the Exigent awarded did yéeld themselues in the K. Bench St. 5. Ed. 3. 8 then were let to baile by the marshals of the said bēch for the preuention whereof it was enacted by a statute made an̄ 5. E. 3. The marshall of the Kings bench shall baile no prisoner That such inditées and appellées shal be safely and surely kept in prison according to the charge which the said marshals shal haue of the Iustices And the marshals of the K. Bench shal not baile any felons but shal kéep them in prison and shal not suffer them to go wandring abroad by baile nor without baile And if any such prisoner be found wandring out of prison by baile or without baile that be proued at the K. suit or the parties the marshals which shal be found guilty thereof shal be halfe yeare imprisoned ransomed at the Kings pleasure And the Iustices shal inquire therof when they sée cause And if the marshals suffer the prisoner to escape by their assent they shal be at the law as before time they haue bin And so it appeareth by this Stat. that imprisonment by commandement of a Iustice was not sufficient to restraine bailement in all cases where bailement was not prohibited by the law A Iustices ordinarie cōmandement and absolute vntil the foresaid Stat. of an̄ 5. E. 3. was made and that is to be intended of an ordinarie commandement of a Iu. for if he doe giue an absolute commandement the prisoner is not baileable As if the Iustice command one to prison without shewing cause why he doth so command or for misdemeanor done in his presence or for some other cause which lieth in the discretion of the Iustice more than in his ordinary power 8 The fourth cause why a man is not repleuisable by the common law is the forrest St. Char. Forest 16. for whereas by the Statute of Charta forestae made an̄ 9. H. 3. and confirmed by King E. 1. The king did graunt for him and his heires that of trespasses committed in his Forrests of vert and venison that the Forresters in whose Bailiwickes such trespasses should be committed should present the same trespasses at the next Swanimot before the Forresters Verderers Regardors and Agistors and other ministers aforesaid by the oathes as well of Knights as others wise and lawful men and not suspitious of the parts next adioyning and néerest where those trespasses shal be so presented and where the truth may best and most certainly be inquired of and the same truth being once found out those presentments by the common assent and agreement of all the Officers aforesaid shal be solemnely written sealed with their seales And if any inditement be made in other manner it shal be accounted void And because the chiefe wardens of Forrests did not obserue the said order but that diuers people were disherited ransomed and vndone by the chiefe wardens of the Forrest on this side Trent and beyond and by other
that case he shall be arraigned at the Kings sute though he be acquit against the appellant by his release An Approuer confesseth his appeale to be false 17 If an approuer 21. H. 6. 34. when an Enquest doth appeare vpon the issue ioined betwéene him and the appellée and be ready to trie the same issue will confesse his appeale to be false yet notwithstanding the appellée shall be arraigned at the Kings suite But if the approuer when the appellée is in the field ready to deraigne battaile will confesse his appeale to be false the appellée shall goe quit and not be arraigned at the Kings suite and the approuer shall be hanged for it is as much as if the appellee had vanquished the approuer in battaile The appeale abating before declaration 18 If an appeale commenced by Writ doe abate before declaration so that the Court can not be informed of the yéere day and place where and when the felonie was committed In that Case the Court doth vse to examine the Coroner if he be present if there be any indictment depending of the same felony or not and if he say no then to send to the Shirife of the Countie where the felonie was supposed to be committed to know if hée haue any indictment or not and in the meane time to let the Defendant to mainprise or otherwise the Court will set the Defendant at libertie There was a time when if a felon had bin taken with the manoure A felon taken with the manoure and that the felon and the manoure had beene brought into the Court the Iudges would haue arraigned the offendor vpon the manoure without appeale or indictment Sed obsoletum 19 In euery arraignement which is to be at the Kings sute vpon an Appeale begunne by the appellant No arraignement at the Kings suite vpon a false declaration the declaration in the same appeale is intended to be once good and true for if it were neuer good and abated for that cause the appellee shall not be arraigned at the kings suite notwithstanding the abatement be after declaration And therefore if an appeale be abated by mis-naming of the Defendant 4. H. 6. 16 hée shall not be arraigned at the kings sute though the abatement be by the Plaintifes owne confession And yet in that case it might be said that the appeale abated by couin for that the said exception was not tried but confessed by the Plaintife And the same Lawe is if the appeale shall be abated by mis-naming of the Plaintife or of the Towne or for lacke of a materiall word And so it is if in an appeale the Defendant doe pleade Fi. Cor. 121 17. As p. 26. 11. As p. 27 18. Ed. 3. 35. Fitz. Cor. 3. 384. 387. 27. Ass p. 25 that the Plaintife is outlawed or is attainted of treason or felonie or otherwise is disabled to maintaine an appeale As if a woman doe bring an appeale of the death of her husband and the Defendant doth pleade that shee and her said husband were neuer accoupled in lawfull marriage or that shée hath married another husband Or that the appeale was not commenced within the yéere and day after the offence committed Or that the appellant hath an elder brother liuing to whome the appeale is giuen and not to the Plaintife And all those matters which shall be a Barre to the plaintife to bring the appeale shall also Barre the king to take any aduantage against the Appellée vpon the same appeale for in all these Cases it may appeare that the appeale was commenced without cause and grounded vpon false matter S. Br. 15. And yet it is otherwise where the appeale was at the first grounded vpon sufficient and true matter But in all the Cases aforesaid though the king cannot take an aduantage of the appeale against the defendant If not an Appeale yet an Indictment at the Kings suite yet he shal compell him to answer to an indictment of the same felony for that by these pleas the defendant is not discharged of the felonie though he be discharged of the appeale And further if the appellée be discharged both against the party and also against the King yet the Court may bind him to his good Abearing Good abearing Fi. Cor. 387 if they shall thinke it méete 13. Ed. 4. 8 3. Ed. 3. 10 20 If an Excommunication be pleaded against the plaintife in appeale The plaintife in appeale excommunicate notwithstanding the plea be thereby delayed yet the Defendant shall not be arraigned at the kings sute for the Plaintife may be absolued and then procéede in his appeale And therefore the appeale shal be continued vntill a certaine day to the intent that the Plaintife may in the meane time procure his absolution and during that time the Defendant shall be let to mainprise But if the appellant be outlawed The plaintife in appeale outlawed though the Outlawrie be not for felonie but for trespas 17. As p. 26 Fit Vtlawrie 47. yet by that meanes the Defendant shal be set at liberty aswel against the king as against the appellant Notwithstanding in that case there is no impossibilitie but the Plaintife might purchase his charter of pardon or reuerse the outlawrie for that it is erronious and thereby be enabled to pursue his appeale An Approuer pardoned the Appellée shall be discharged 21 If one be appealed by an approuer 47. E. 3. 5. 47. E. 3. 16. and the King doth pardon the approuer he that is appealed by the approuer shall be set at libertie without being arraigned at the Kings suite for by the pardon the felonie is extinct in him and so he ceaseth to be an approuer for the approuement shall continue no longer then the approuer is partaker of the felonie whereof the approuement is made Vanquishing one approuer 22 If thrée men doe become approuers seuerally against one man 7. Ed. 3. 11. of one and the same felony and he ioyneth battell with them all and doth vanquish that approuer which first ioyneth with him by that meanes he shal be acquit against them all and likewise against the King and the other two approuers shall be hanged But it is otherwise if the approuement be of seuerall felonies for in that case though the appellee doth ioyne battell with them all 25. Ed. 3. 42 and after vanquish that approuer which first ioyneth with him he shall be remaunded to prison vntill he hath ioyned battell with the other two for that there must be seuerall trialls where there be seuerall felonies and seuerall issues Examining an offendor condemned 23 If a man would become an approuer 21. Ed. 3. 18 and cannot be suffered by the Lawe for some disablement or for the impediments before mentioned yet before he shal be put to execution the Court will send the Shirife vnto him to heare who they be that he can accuse and
27. H. 8. 19. 32. H. 8. 3. 32. H. 8. 12. And by that means abiuration at the common law is restored to his former course I will therefore write so much of abiuration and abiured persons as is warranted by the common lawes of this Realme onely and not by any Statute sauing by the statute of Articuli cleri made an̄ 9. Ed. 2. 10. which is rather a confirmation or exposition of the common law than a new law and except so much as is contained or mentioned in the statute of 35. Eliz. 1. 2. or in any other law made sithence that time which I doe rather set downe that the Reader may knowe what the law hath beene or is then how it is vsed and put in practise 4 Abiuration doth not lie for him which offendeth in high treason No abiuration for high treason because the Coroner cannot attaint him vpon his confession thereof for that he is not his Iudge of that offence neither can he be Iudge as Coroner though hée haue a commission from the King to doe it And if the offendor béeing in a Church would of purpose confesse a felonie to the intent to escape Treason yet if the Coroner be informed that hee is charged with treason hée ought not to suffer him to abiure and that for the Kings aduantage for it is better for the King to attaint him of Treason than of felonie in respect of the Escheat which in case of Treason doth wholly belong to the King of whomsoeuer the offendors lands be holden And the same law is in petit Treason for the Coroner ought not to record his abiuration thereof No abiuratiō for petit treason any more than hee may doe of high Treason Neither the Coroner ought to let him passe by abiuration of another felonie if he be informed that the offendor hath committed petit treason and that for the grieuousnesse of the offence though the king shall receiue no more benefit in petit treason than in felonie And the statutes which were made in the time of k. H. 8. St. 21. H. 8. 2 22. H. 8. 14. 27 H. 8. 19 32. H. 8. 12 touching abiuration be a speciall argument and proofe thereof which doe onely make mention of abiuration for murder and felonie but not for petit treason Fi. Cor. 420 9. Ed. 4. 28 5 If a man doe robbe a Church and flie to another Church for the said offence and there would abiure No abiuratiō for the robber of a Church he shall not be receiued thereunto but shall violently be pulled forth of the Church and thrust into prison Quia frustra legis auxilium inuocat qui in lege delinquit Fit cor 313 9. E. 4. 28. 6 If a man that is attainted of felonie and in carrying to the gallowes to be put to death doe escape from the Sherife and flie to a Church No abiuratiō for a man attainted he cannot abiure and though the Coroner would take his abiuration and let him goe at libertie the Sherife may take him againe and put him to execution notwithstanding the said abiuration for it is void and the Coroner in that case shal be grieuously amerced for this escape and so shall the towne where he was let at libertie and the reason is for that a man cannot haue two Iudgements for one offence Fi. Cor. 335 And so it is and for the same reason if a man that is attainted of felonie and is carried to the gallowes and hanged breaketh the halter falleth downe and then riseth vp and doth flie to a Church he cannot abiure but must be taken againe by the sherife hanged vntil he be dead according to his iudgement No abiuratiō for a man before abiured 7 If a man doe abiure the Realme before a Coroner for felonie 9. Ed. 4. 28 8. H. 4. 3. Fi. Cor. 410 and after doth returne into the Realme without the Kings pardon and then flie to a Church and would abiure againe he shall not be allowed so to do but shall be taken forth by violence and put to execution for that he was before attainted of felonie vpon his owne confession and had his iudgement of abiuration and cannot be twice attainted or haue two iudgements Where an offendor may by violence bee drawne out of a Church 8 If a man doe flie to a Church claiming the priuiledge therof for the safeguard of his life in some cases he may be drawne forth of the same by violence as if he come into the Church to claime the benefit thereof for an vnlawfull cause at the beginning viz. for treason robbing of a Church beeing formerly abiured or such like in those cases he may be drawne forth of the Church by violence by the people of the same towne and in like sort 3. H. 7. 12. Bro Cor. 180. if he doe flie to a Church and saith he doth take it for the safeguard of his life and will not declare that he hath committed felonie and that therefore he claimeth the priuiledge of the Church in that case the officers of the towne may by strength take him out of the Church But if he doe say that he doth take the Church for felonie that is sufficient without declaring what felonie or the manner thereof for he is not bound to shewe that but to the Coroner before whom hee doth make his abiuration The offendors confessiō before the Coroner and then he must confesse and shew the yeare day and place where and when the felonie was committed for that iudgement is to be giuen vpon his confession which must be grounded vpon certaintie Tarrying in a Church aboue the time appointed 9 If an offendors being in a Church were once lawfull although he tarrie there aboue the time which the law hath appointed him yet hee ought not for that cause be drawne out of the Church by violence Fi. Cor. 313 but meat and drinke shall be withholden from him and euery person shall be forbidden to succour him and he that doth relieue him shal be punished at the Kings suit which punishment some doe affirme shal be for a lay man death Britton Bracton and for a Clerke banishment for he that taketh a Church for felonie ought not to tarrie there aboue one night if a Coroner will come vnto him and be ready to take his abiuration otherwise he may tarrie there fourtie daies The manner of abiuration 10 The manner of abiuration is that he who taketh a Church ought to declare that he doth take it for felonie which he hath committed and when the Coroner commeth he must confesse before him the felonie certainely viz. the yeare day and place where and when hee committed the felonie and pray to abiure the Realme and to haue the tuition of the Church vntill he can prouide for his iourney and this confession must be taken by the Coroner himselfe and not by his deputie And then he
an appeale or an indictment then the matter commeth to be tried betwéene the King and him or the appellant and him whether he be guiltie Triall of the plea Not guiltie or not If it be in an appeale it may be tried by Verdict or by Battell as the appellée will sauing in certaine Cases But vpon an Indictment there is no triall by battell nor otherwise sauing onely by verdict In an Indictment of treason or felonie against one of the Péeres of the Realme the triall is by his Péeres which manner of triall in an appeale is not allowable The arraignment of a Peere of the Realme 2 When a Péere of the Realme 1. H. 4. 1. 13. H. 8. 13. 10 Ed. 4. 6. and Lord of the parliament is to be arraigned vpon any treason or felonie whereof he is indicted and whereunto he hath pleaded Not guiltie the King by his Letters patents shall assigne some great and sage Lord of the parliament to be high Steward of England for the day of his arraignement who before the same day shall make a precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him eightéene or twentie Lords of the parliament vpon the same day And then at the day appointed when the high Steward shall be set vnder the cloth of Estate vpon the arraignement of the prisoner and hath caused his Commission to be read the same Serieant shall returne his precept and thereupon the Lords shall be called and when they haue appeared and be set in their places the Constable of the Tower shall be called to bring his prisoner into the Court who then shall bring the prisoner to the Barre And then the high Steward shall declare vnto the prisoner the cause why the King hath assembled thither those Lords and him and perswade him to answer without feare And then hée shall cause the Clerke of the Crowne to reade his Indictment vnto him and to aske him if hée be guiltie or not whereunto when hée hath aunswered Not guiltie the Clerke of the Crowne shall aske him how he will be tried and then he will say by God by his Péeres And then the K. Serieants and Atturney will giue Euidence against him whereunto when the prisoner hath made answer the Constable shall be commaunded to retire the prisoner from the Barre to some other place while the Lords doe secretly conferre together in the Court and then the Lords shall rise out of their places and consult among themselues and what they affirme shall be done vpon their honours without any othe to be ministred vnto them And when they all or the greatest part of them be agréed they shall returne to their places and sit downe And then the high Steward shall aske of the yongest Lord by himselfe if he that is arraigned be guilty or not of the offence whereof he is arraigned and then of the yongest next him and so of the residue one by one vntill he hath asked them all and euery Lord shall answer by himselfe And then the high Steward shall send for the prisoner againe who shall be led to the Barre to whom the high Steward shal reherse the verdict of the Péeres and giue iudgement accordingly But if an Earle the sonne and heire apparant of a Duke or a Lord the sonne and heire apparant of a Marques or Earle 38. H. 8. Br. Treason 2 be indicted of high treason he shall be tried by Knights and Gentlemen and not by Péeres for he is not an Earle by Creation but by Natiuitie But if he be of dignity by creation and a Lord of the Parliament hee shall be tried by his Peeres 3 The foresaid manner of Triall séemeth to be appointed by the Statute of Magna Charta St. 9. H. 3. 29. which hath ordained That no frée man shall be taken or imprisoned or disseised of his fréehold liberties or frée customes nor shall be outlawed banished or by any meanes brought to destruction Neither wée will passe or sit in iudgement vpon him but by the lawfull iudgement of his Péeres or by the lawe of the Realme We will not sell deny or deferre iustice or right to any It appeareth by this statute of Magna Charta By whom Péeres appealed shal be tried that a Péere of the Realme shall be tried by his Péeres onely in case where he is indicted at the Kings suite of treason or felony for the words of the statute be we will not passe or sit in iudgement vpon him but by his Péeres 10. Ed. 4. 6 But if an appeale of murder or other felony be sued by any common person against a Péere of the Realme he shall be tried by common persons and not by his Péeres And because there was no mention made in the said statute of Magna Charta how women Ladies of great estate because of their husbands Péeres of the Realme married or sole viz. Duchesses Countesses or Baronesses should be put to answer nor before what Iudges they should be iudged vpon indictments of treasons or felonies by them committed and for that the saide statute of Magna Charta doth onely make mention of a man Therefore by a statute made Anno 20. H. 6. 9. St. 20. H. 6. 9 it was enacted By whom ladies shal be tried That such Ladies of great estate viz. Duchesses Countesses and Baronesses which shall be indicted of any treason or felony by them committed whether they be married or sole shall be brought to their answer and put to answer and iudged before such Iudges and Péeres of the realme as Péeres of the realme should be if they were indicted or impeached of such treasons or felonies committed 4 None of the foresaid statutes haue béene put in practise to extend to Bishops Bishops though they enioy the name of Lords of the parliament for they haue that name of Bishops in respect of their office or function and not in respect of their nobilitie neither haue they places in parliament in respect of their nobilitie but in regard of their possessions being ancient Baronies annexed to their dignities If a Péere of the Realme be indicted of treason or felonie he may be thereupon arraigned in parliament Arraignment in parliament if it shall please the King 10. E. 4. 6 and then the Lords spirituall shall make one Procurator for them for that by the Cannon lawe they cannot condemne any man to death A Bishop was arraigned in the Kings Bench and not by any Lords of parliament for that hée came to the parliament by summons and departed without licence 3. E. 3. 19 and because this was an offence as well to the King as to the Péeres and the King may comemnce a suite where he please for a trespas done to him therefore this was accepted a lawfull indictment though the complaint was made in an inferiour Court for an offence done in an higher
linguae Therefore the more to encourage Marchants to continue here and also others to come with their marchandizes into this Realme by a Statute made Anno 8. H. 6. St. 8. H. 6. 29 it was declared That the same Statute made Anno 2. H. 5. should be no wayes preiudiciall to the foresaid first statute made 28. Edw. 3. nor was not meant that it should extend to any but onely to Enquests to be taken betwéene Denizon and Denizon and not to the other Enquests or proofes mentioned in the sayd Statute of 28. Ed. 3. viz. to Enquests to be taken betwéene Denizons and Aliens And that the first statute of 28. Ed. 3. should bée effectuall stand in force and be put in execution according to the forme thereof notwithstanding the later Statute of 2. H. 5. and notwithstanding that Aliens haue not lands or tenements of the yearely value of fortie shillings according to the purport of the sayd later statute of 2. H. 5. And so by this statute want of sufficient fréehold is the cause of Challenge to Aliens which bée impanelled with English men But yet it séemeth to be a cause to challenge English men who bée impanelled with Aliens for the perclose of this Statute doth wholly relye vpon Aliens This last rehearsed Statute of 8. H. 6. willeth That the intent of the other Statute of 2. H. 5. should bée preferred before the words thereof and so the Iudges of the law haue expounded it 9. H. 6. 27. for they haue allowed a Iuror which had not fortie shillings of fréehold to bée sworne in an Enquest if others had so much land to his vse And where the words of the statute be If he hath not lands or tenements of the yearely value of fortie shillings and doth not expresse in what Countie yet they doe take it by intendment that the lands must bée in the Countie where the issue is to bée tryed 9. H. 7. 1. M. 12. H. 7. 4 H. 32. H. 8. 20. P. 21. H. 6. 39. And for that the words be in the Present tense viz. if hée hath not they doe expound it that the Iuror must haue so much land in the same Countie at that time when he is sworne for though he had so much land when he was impanelled yet if he hath aliened it or that the same was euicted from him by an auncient title before the time hee was sworne the challenge of insufficiencie shall bée allowed vnto the prisoner And whereas the foresayd statute of 2. H. 5. hath ordayned That no person shall be admitted to passe in any Enquest vpon the tryal of the death of a man if hée hath not lands of the yearely value of fortie shillings this is not meant of the tryall of the death of a man which is slaine but of the tryall of the death of a man which standeth at the barre vpon the question of his life or death And then will this challenge serue for want of sufficient lands vpon the triall of all maner of felonies and treasons By the Statute of 33. H. 8. it is enacted That he which is arraigned of treason St. 33. H. 8. 12. murder or manslaughter committed within the Verge shall haue no maner of challenge to any of the Iury malice only excepted and so shall haue no challenge for want of sufficient fréehold And in like sort it is ordained by the Statute of Anno 3. H. 7. St. 3. H. 7. 14 That hee which being the Kings seruant sworne and whose name is in the checke Roll of the Kings houshold vnder the degrée of a Lord which is arraigned for conspiring with any other to destroy any Lord of this Realme or any other sworne to the Kings Councell Or the Steward Treasurer or Controller of the Kings house shall not haue any challenge but for mallice and so shall haue no challenge for want of sufficient fréehold By a Statute made Anno 33. H. 8. St. 33. H. 8. 13. it was enacted That if a Commission of Oyer and Determiner bée directed into any County for the tryall of any person which doth confesse any Murther to thrée of the Kings Councell or is vehemently susspected thereof no challenge for the Hundred or Shire shall bée allowed vnto him But the challenge of any Iuror for lacke of Fréehold of the yearely value of forty shillings shall bée allowed as hath béene accustomed And because Trials in Murthers and Felonies in Cities Boroughes and Townes corporat within this Realme hauing authoritie in the deliuerance of such offendors were oftentimes deferred and delayed by reason of challenge made by such offendors of Iurors for lacke of sufficiency of fréehold to the great hinderance of iustice for the redresse thereof by a statute made Anno 23. H. 8. St. 23. H. 8. 13. it was enacted That euery person being the kings naturall subiect borne which either by the name of a citizen or a fréeman or any other name doth enioy the liberties of any City Borough or Town◠corporat where he dwelleth being worth in mooueable goods to the cleare value of forty pounds shall bée admitted in tryall of Murthers and Felonies in euery Sessions and Gaoles of deliuery kept in and for the liberty of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this act extendeth not to any Knight or Esquire dwelling abiding or resorting to any such City Borough or Towne corporat any thing in the same act to the contrary hereof notwithstanding 5 Vpon the arraignement of a prisoner the king by his prerogatiue might haue challenged euery of the Iurors peremptorily by the common law without shewing of any cause thereof and by that challenge the same Iuror should haue béene presently drawne But this was a great mischiefe and offence to the subiect who by that meanes was infinitely delayed and had often put out of the Iury the most discréet and indifferent men which were returned for his tryall For the remedy whereof by a Statute intituled Ordinatio de inquisitionibus Challenge for the king made Anno 33. Edw. 1. St. 33. E. 1. it was established That touching Inquisitions to bée made before any Iustices wherein the king is any way a party although it bée alleadged by those which doe prosecute for the king that the Iurors of those Inquisitions or any of them bée not good for the king those Inquisitions shall not therefore remaine to bée taken But if they which doe pursue for the king will challenge any of those Iurors they shall shew a certaine cause of their challenge and the truth of that challenge whether it bée true or not shal be inquired of according to the Iustices discretion But he that doth prosecute the sute for the king néede not presently shew the cause vpon his challenge as a common person should do if he were party against the king for he may shew that cause when he hath perused the whole pannell But if he that is arraigned
1. H. 5. 10 Fit Chall ' 105. 38. Ass p. 22 doe challenge any of the Polles hee must shewe the cause vpon his Challenge which must be presently tried for that it is in a plea of the crowne wherein the king is a party 6 A man outlawed of Felonie An Outlaw of Felony shall haue his challenges vpon an Issue taken for the auoidance of the Felony Fi. Chall ' 153. 165. For though hée cannot challenge a worse man then himselfe béeing outlawed for Felony yet séeing it is in Issue to trie whether hee bee an Outlaw or not and by this tryall if it bée found for him to defeat the same Outlawry that opinion of him ought to bee holden in suspence vntill the said issue shall be tried against him 21. H. 6. 30. 14. H. 4. 19. 7 It is a good Challenge vpon cause to say that one of the Iurors is an Alien or a Villaine or an Outlaw A Iuror an alien villaine or outlaw for then hée is not Liber legalis homo For though an Alien borne hath dwelt in this Realme from his childhood and be sworne in a Léet or other Court to the Kings obedience yet he is not the Kings liege man for the Steward of a Léet nor any other can make an Alien Legalis homo but onely the King ⧠Euidence 1 WHen a prisoner is indicted of Treason or Felony hath pleaded not guilty is therupon arraigned and finished his challenges then euidence is to be giuen against him to proue him guilty which euery person shall bée admitted to doe for the king And because the euidence of those that tooke the said offendor with the manner did first accuse him or brought him before the Iustices of Peace to be examined of the supposed offence hath béene alwaies adiudged most pregnant and effectuall Therefore by a statute made Anno 1. 2. Ph. Ma. St. 1. 2. P. M. 13. it was ordayned That two Iustices of Peace at the least Euidence against an offeÌ„dor let to batle wherof one of them to be of the Quorum when any prisoner is brought before them for any manslaughter or felony before any bailement or mainprise shall take the examination of the said prisoner and information of them that bring him of the fact and circumstances thereof and the same or as much thereof as shal be materiall to proue the felony shall put in writing before they make the same bailement which said examination together with the said bailement the said Iustices shall certifie at the next generall Gaole deliuerie to bée holden within their Commission and that euery Coroner vpon any inquisition before him found whereby any person or persons shall bée indicted for murther or manslaughter or as accessorie or accessories to the same before the murther or manslaughter committed shall put in writing the effect of the euidence giuen to the Iury before him béeing materiall And as well the said Iustices as the said Coroner shall haue authority by this act to bind all such by Recognisance or Obligation as doe declare any thing materiall to proue the said murther or manslaughter offences or felonies or to bée accessories or accessories to the same as is aforesaid to appeare at the next generall Gaole deliuerie to bée holden within the County City or Towne corporat where the tryall thereof shall bée then and there to giue euidence against the party so indicted at the time of his triall and shall certifie as well the same euidence as such bond and bonds in writing as hée shall take together with the Inquisition or Indictment before him taken and found or before the time of his sayd tryall thereof to bée had or made And likewise the said Iustices shall certifie all and euery such bond taken before them in like manner as is before said of baylements and examination And in case any Iustice of peace or Quorum or Coroner shall offend in any thing contrary to the true intent and meaning of this act then the Iustices of Gaole deliuery of the Shire City Towne or Place where such offences shal happen to be committed vpon due proofe thereof by examination before them shall for euery such offence set such fine on euery such Iustice of Peace and Coroner as the same Iustices of Gaole deliuery shall thinke méet and shall estreat the same as other Fines and Amerciaments assessed before Iustices of Gaole deliuery ought to bee S. Mainprise 13. 2 Because the foresaid statute of 1. 2. Ph. Ma. 13. doth not extend to any such prisoners as shall be brought before any Iustice of Peace for Manslaughter or Felony and by such Iustice shall be committed to ward for the suspition of such Manslaughter or Felony and not bayled in which case the examination of such prisoner and of such as shall bring him is as necessary or rather more then where such prisoner shall be let to bayle For the reformation whereof St. 1. 2. P. M. 10. by a statute made Anno 2. 3. Ph. Ma. it was enacted That such Iusticâ—s or Iustice before whom any person shall bée brought Euidence against an offendor coÌ„mitted to prison for Manslaughter or Felony or for suspition thereof before he or they shall commit or send such prisoner to ward shall take the examination of such prisoner and information of those that bring him of the fact and circumstances thereof and the same or as much thereof as shall be materiall to prooue the Felony shall put in writing within two dayes after the said examination and the same shall certifie in such manner and forme and at such time as they should and ought to doe if such prisoner so committed or sent to ward had béene bayled or let to mainprise vpon such paine as in the said former act is limitted and appointed for not taking or not certifying such examinations as in the said former act is expressed And the said Iustices shall haue authority by this act to bind all such by Recognisance or Obligation as doe declare any thing materiall to proue the said Manslaughter or Felony against such prisoner as shall bee so committed to ward to appeare at the next generall Gaole deliuery to be holden within the County City or Towne corporat where the triall of the said Manslaughter or Felony shall be then and there to giue Euidence against the party And the said Iustices shall certifie the sayd bands taken before them in like manner as they should and ought to certifie the bands mentioned in the said former act vpon the paine as in the said former act is mentioned for not certifying such bands as by the said former act is limitted and appointed to be certified 3 And for that men should be the readier and more willing to giue Euidence against Robbers and other Felons Restitution vpon attainder by euideÌ„ce by a statute made Anno 21. H. 8. St. 21. H. 8. 11 it
was established That if any Felon or Felons doe robbe or take away any money goods or cattels from any of the kings subiects from their person or otherwise within this Realme and thereof be indicted and after be arraigned of the same Felony and found guilty thereof or otherwise attainted by reason of Euidence giuen by the party so robbed or owner of the said money goods or cattels or by any other by their procurement then the party so robbed or owner shal be restored to his said money goods and cattels Before which statute the party robbed or owner of the goods stolne could not haue had restitution without suing of an Appeale against the Felon Euidence giuen by a stranger 4 If the seruant be robbed the master may giue euidence against the Felon and haue restitution by this statute if so be that the goods robbed were the goods of the master for the words of the statute be The party so robbed or owner Also if he that was robbed doth not giue Euidence himselfe but procure another to giue the euidence this is sufficient by the words of the statute to obtaine restitution of his stolne goods There must be two accusors to giue euidence in Treason 5 By a Braunch of a statute made Ann̄ 5. Ed. 6. St. 5. E. 6. 11 it was ordained That no person or persons shall be indicted arraigned conuicted condemned or attainted for any Treasons that now be or hereafter shal be vnlesse the same offendor or offendors be therof accused by two lawfull accusors which said accusors at the time of the arraignment of the party accused if they be then liuing shal be brought in person before the party so accused and auow and maintain that which they haue to say against the said party to proue him guilty of the Treasons or offences contained in the bill of indictment layed against the party arraigned vnlesse the said party arraigned shall willingly without violence confesse the same But after by the statute of An. 1. 2. P. M. St. 1. 2. P. M. 10. T. 2. 3. P. M. Dyer 132. it was ordained That all tryals to be had awarded or made for any Treason shall be had and vsed onely according to the due order and course of the common lawes of this Realme and not otherwise Quaere whether the said stat of 1. 2. P. Ma. do take away the force of the foresaid stat of 5. Ed. 6. which it is thought it doth not but that the said statute of Anno 5. Ed. 6. doth remaine in force séeing it was ordained onely for the accusation or euidence and not for the time place or order of the triall Euidence in high Treason 6 If there be an accusor of high Treason of his owne knowledge 1. M. Dy. 98. or of his owne hearing and he doth vtter it to another that other may well be an accusor or witnesse And likewise if the second man do vtter it to the third and the third to the fourth man euery of them may be an accusor or witnesse Euidence against abettors to offēces 7 By the statute of Anno 5. Eliz. St. 5. El. 1. it is ordained That no person or persons shal be indicted for assisting aiding maintaining comforting or abetting of any person or persons for any of the offences mentioned in the said statute in extolling setting forth or defending of the vsurped power and authority of the bishop of Rome vnlesse he or they be thereof lawfully accused by such good and sufficient testimony or proofe as by the Iury by whom he shall be so indicted shal be thought good lawfull and sufficient to proue him or them guilty of the said offences S. Treasons 15. 8 By the Statute made Anno 31. Eliz. St. 31. Eli. 4. it is ordained Euidence on the def part That such person and persons as shall bée impeached for any offence made Felony by that Statute béeing intituled an act against imbesilling of armour habiliments of warre and victuals shall by vertue of this act be receiued and admitted to make any lawfull proofe that he can by lawfull witnesse or otherwise for his discharge and defence in that behalfe any Law to the contrary notwithstanding S. Felonies by Statute 33. ⧠Verdict 1 AFter the prisoner hath pleaded not guilty hath béen thereupon arraigned and euidence giuen against him in open court before the Iudges and the Iury the same Iury do depart from the barre to consider of their euidence proofes which being done they return again to the court to giue vp their verdict which as the issue of not guilty is generall so may they deliuer their verdict guilty or not guilty if they will and that their euidence be cleare and do induce them therunto But it is not alwaies requisit to giue a generall verdict for if the fact whereupon the prisoner was arraigned be such that the Iury doe stand in doubt whether it be felony or not they shall best discharge their consciences to giue a speciall verdict that is to say a verdict at large viz. a verdict declaring at large the whole truth of the matter which may be done as well in case of felony as in an assise A verdict at large in felony or action of Trespas as they may deliuer their verdict 44. E. 3. 44 Fi. Cor. 284 286. 287. 47. Ass p. 31 that the prisoner which is arraigned for the killing of a man did slay the same man in his owne defence for he that is arraigned must plead not guilty séeing that in his plea he cannot iustifie the killing of a man and then the Iury in their verdict may declare the whole circumstance of the fact and conclude that he killed him in his own defence for it is not a sufficient verdict for the Iury to say that the prisoner killed the man in his owne defence but they must shew the cause manner and circumstance of the fact that the court may discerne iudge whether the fact which the prisoner hath committed be felony or not whether the prisoner standeth in the Kings mercy or not and whether hee shall loose his goods or not The verdict lesse penall thē the indictment 2 As a Iury may giue a speciall verdict touching a man that killed another in his own defence so may they giue a speciall verdict where he that is arraigned killed another by misfortune Or where he which cōmitted the homicide was not of perfect memory or deafe dumbe or an infant without discretion Or that the thing which was stoln was not worth aboue x. d. Or that he which is indicted arraigned for committing of a murther T. 26. H. 8. 5 P. 9. El. Dy. 261. Pl. com 101 Br. Cor. 221 Br. Appeale 122. did kil the man by chance medley or in his owne defence and not of malice prepenced And if two be indicted for cōmitting of a felony do plead
conuicted or Clerke attainted and the day and place of his outlawrie conuiction and attainder and the day and place where and when the said felony or other offence whereupon the said person or persons shal be so indicted outlawed or Clerke attainted shall be made and done before the K. in his bench at West in the county of Midd. there to remaine of record for euer among other the K. records there within xl daies next after any such attainder conuiction or outlawrie shall be had made or procured if the terme be thē if not within xx dayes next after the beginning of the terme next following the said xl daies but also shall deliuer a transcript of euerie such indictment whereupon the said person persons shal fortune hereafter so to be conuicted or Clerkes attainted to the Ordinary to whom the body of the said person or persons shall be committed at the time that the sayd person or persons shall bee committed the sayd Ordinarie paying to euerie such Clerke as shall write the sayd Transcript for euerie copie of such indictment twelue pence for his paines vpon paine that euery Clerke of the Crowne Clerke of the peace and Clerke of Assise for the time being before whom such Indictment Attainder Outlary or Conuiction shal be so had made pronounced or remaine for the non-certifying of euery such record and deliuering of the copy of such Indictment to the said Ordinaries according to this statute to loose and forfeit forty shillings the one moity thereof to be to the king and the other moity to him that will sue for the same by action of Debt Bill Information or otherwise in any of the kings Courts of Record wherein no Wager of Law Essoine or Protection shal be allowed and the clerke of the Crowne in the kings Bench shall receiue the said certificats and transcripts at such time as they shall be tendered and profered vnto them by the said clerkes of the Crowne clerkes of the peace and clerkes of assise or by their deputy or deputies without taking any thing for the same vpon paine of forfeiture of forty shillings for euery such certificat by him refused Prouided alwaies that if there be any more persons contained and named in any such Indictment other then such person so attainted conuicted or outlawed that then such clerke of the crowne clerke of assise or clerke of peace with whom the record of such attainder outlary or conuiction shall remaine shall within the time before in this act limitted certifie the transcript of such indictment outlarie or conuiction onely concerning such person or persons so indicted and attainted outlawed or conuicted into the kings Bench at Westminster as is aforesaid which transcript so certified shall be had and taken as good effectuall and auaileable in the Law to all intents and purposes against such person and persons against whom it shall be so obiected alledged or pleaded as if the very record thereof whereupon he or they were so indicted were there present And be it enacted c. That the said clerke of the crowne in the kings Bench for the time being shall at all such times as the Iustices of Gaole Deliuerie or Iustices of Peace in euery County within this Realme of England doe write vnto him for the names of such persons which be so attainted by Outlarie or clerkes attainted or conuicted and certified into the said Bench shall incontinently without delay certifie the said names and surnames of the said persons with the causes why and wherefore they were conuict or attainted vnto the Iustices of Gaole deliuery or Iustices of Peace vpon paine and penalty to forfeit for euery name of such persons which shall be so written for and not certified by the said Clerk of the Crowne in the Kings Bench to the said Iustices fortie shillings Prouided that this Act nor any thing therein contained shall not extend to the Clerkes of the Crowne Clerkes of the Peace Clerkes of Gaole deliuerie neither to any of the Prenotaries within the Counties of Wales and Chester or within the Counties Palantine of Lancaster and Duresme or any of them to make any transcript of any such attainder conuiction or outlawrie of any person or persons conuicted attainted or outlawed before the Kings Iustices of his Counties of Wales nor Chester or Countie of Lancaster Duresme or any of them but that the same Records shall and may remaine and be in the custodie and kéeping of the sayd Clerkes and Prenotaries in such maner and wise as they are at this day this Act or any thing therein contained to the contrarie notwithstanding 43 Though the deliuering of him to the Ordinarie who hath the benefit of his Clergie and making of purgation bée taken away the Statute of 18. Eliz. 6. yet because both deliuering to the Ordinarie and making of purgation were vsed by the space of many generations in this realme and seuerall lawes statutes and some prouinciall councells were made and ordained touching the ordering direction and gouernance of those which as Clerks conuict or attaint were committed to the Ordinary and were to make purgation or not I will therefore briefly set downe the effect of some of those laws as antiquitie did retaine them He which had the priuiledge of his Clergie and was deliuered to the Ordinarie that did demaund him was not set at libertie to goe wandring vp and downe the Countrie but was safely and straitly kept in the Bishoppes prison In what sort a clerke deliuered to the Ordinarie was vsed hauing for foode vppon the Sonday bread ale and pease and vpon all the other daies courser bread and small drinke once in the day onely or in the Kings prison if the Bishop would haue it so vntill hée had purged himselfe of the crime wherewith hée was charged or otherwise had failed of his purgation and could not make it And if the Bishop would not admitte him to make his purgation then the King would direct his Writte to the Bishoppe commaunding him to suffer the same prisoner to make his purgation 15. H. 7. 19. or the King at his pleasure might pardon the prisoner or cause him to be set at libertie without making any purgation And when a Clerke was to make his purgation the King was to be made priuie thereunto who did direct his Writ to the Shirife of the countie where the offendor was prisoner commaunding him to make proclamation through his Countie that if any man could shew cause why such an offendor viz. A. B. prisoner in the Kings or Bishoppes prison should not make his purgation that then he should appeare such a day and in such a place and shew the same cause And in London the Preacher at Paules Crosse did likewise notifie that A. B. The manner of making purgation prisoner in such a prison was to make his purgation in such a Diocesse at such a place vpon such a day at which day assigned whether any crime or not to giue
of treason or felonie which graunting of Pardon is one of the most ancient and honourable prerogatiues that is annexed to the Imperiall Crowne of this Realme being an authoritie in a sort to reuiue a dead man and to continue him in life whom the Lawe adiudged to die And it is only granted vpon a good hope that the king hath of the amendment of the life of that subiect who hath offended his lawes and whose crime his owne conscience doth assure him that he may pardon notwithstanding his othe taken at his coronation which othe is that he will to the vttermost of his power cause equall and right iustice to be done in all iudgements and discretion in mercy and truth for as Bracton Bracton saith The King at his coronation The Kings oath at his coronation by an oathe taken in the name of Iesus Christ the sonne of God ought to promise his subiects thrée things The first that he will commaund and doe his whole indeuour during his raigne that true peace may be performed to the Church of God and all his people The second that he will by all meanes restraine euery kind of rapine and oppression The third that in all Iudgements he will commaund iustice and mercie to be obserued that by his mercifull dealing with others the God of mercie may take commiseration vpon him and that by his iustice all his people may enioy peace 2 Because authoritie to remitt and pardon Treasons Murders Manslaughters and other felonies with diuers others of the most ancient prerogatiues and authorities of Iustice appertaining to the imperiall Crowne of this Realme were seuered and taken from the saide Crowne by sundrie gifts of the Kings of this Realme to the great diminution and detriment of the royall estate of the same and to the hindrance and delay of iustifie For reformation whereof by a statute made Anno 27. H. 8. St. 27. H. 8. 25. it was enacted That no person or persons of what estate or degree soeuer they be shall haue anie power or authoritie to pardon or remit any treasons None but the king shal pardon treasons felonies c. murders manslaughters or felonies whatsoeuer they be nor any accessories to any treasons murders manslaughters or felonies or any outlawries for any such offences aforesaid committed done or diuulged by or against any person or persons in any parts of this Realme or Wales or the Marches of the same But that the King his heires and successors kings of this Realme shall haue the whole and sole power and authoritie thereof vnited and knit to the imperiall crowne of this realme as of good right and equitie it appertaineth any graunts vsages Acts of parliament or any other thing to the contrary notwithstanding 3 But because the Kings of this Realme haue not had that circumspection in graunting of pardons which Bracton doth thinke fit and haue béene many times deceiued in their grants by false suggestions and for that offendors in times past were greatly encouraged and lesse feared to offend in respect that pardons of manslaughters robberies felonies and other trespasses against the Peace were so easily graunted For the redresse whereof by a statute made Anno 2. Ed. 3. St. 2. Ed. 3. 2 it was ordained In which cases onely the K. may grant pardon of felonie c. That no such charters should be graunted but where the King may doe it by his oathe that is to say in case where a man doth kill an other in his owne defence or by misfortune which laide Statute was after rehearsed and confirmed by an other Statute made Anno 4. Ed. 3. St. 4. E. 3. 13 And also by another Statute made Anno 14. Ed. 3. St. 14. Ed. 3. 10. the effect of the same was rehearsed and confirmed and it was moreouer ordained That if any charter of pardon were from thenceforth graunted contrarie to the purport of the said Statutes that then the same should be accompted as voide 4 And though there be wordes large enough in the foresaide Statutes to make frustrate all those charters of pardon which be graunted against the forme of the same Statutes Non obstante in a pardon yet by putting into the Charters of pardon these wordes viz. Non obstante aliquo statuto actu ordinatione in contrarium edito the force of those Statutes be cleane taken away and not onely of those but also of all other in which this clause of Non obstante is inserted for it is a dispensation of the Statute and commonly put in euerie Letters patents But because the Kings of this Realme were oft times deceiued in granting of charters of pardon by the false and vntrue suggestion of others Therefore to auoide those abuses by a Statute made Anno 27. Ed. 3. St. 27. E. 3. 2 it was accorded That in euery charter of pardon of felonie The suggestion comprised in the pardon which shall be graunted at the suggestion of any person the suggestion and the name of him that maketh it shall be comprised in the same charter And if after the suggestion be found vntrue the Charter shall be disallowed and accounted nothing worth And the Iustices before whom such Charters shall be alleaged shall enquire of the same suggestions and if they finde them vntrue they shall disallow the Charters and procéede further as the Lawe requireth 5 Because the Commons did complaine in Parliament of the outrages mischiefes and dammages which did come to the Realme by treasons murders rauishments of women commonly done committed and the rather for that charters of pardon were too easily granted thereof and did desire the King that such charters of pardon might no more be granted in those Cases Whereunto the K. did answer that he would yéeld to their petition sauing the prerogatiue and regal authority which his progenitors before that time had And to the intent that the King would be certainely informed before of what offences he did graunt pardon Therefore by a Statute made Anno 13. R. 2. St. 13. R. 1. 1 Stat. 2. the King did graunt with the assent of the Parliament That no Charter of pardon shall be allowed before any Iustice for murder The offences shall be specified in the pardon for the death of a man slaine by awaite assault or malice prepensed treason or rape of a woman vnlesse the same murder death of a man slaine by awaite assault or malice prepensed treason or rape of a woman be specified in the same Charter And if a Charter of the death of a man be alleadged before any Iustice in which Charter it is not specified that hée of whose death any such is arraigned was murdered or slaine by awaite assault or malice prepensed the same Iustices shall enquire by a good Enquest of the visne where the dead was slaine if hée were murdered or slaine by awaite assault or malice prepensed And if they shall find that he was murdered or
Coroners will answer He that hath a pardon shal find sureties for his good abearing that he from thenceforth shall beare himselfe well and lawfully And the maineprises shal be sealed and returned into the chancerie within thrée moneths after the end of the said thrée moneths And if hée which hath such Charter will ayd himselfe thereby and hath not found such mainprises or after such mainprise found doth beare himselfe otherwise against the peace than he ought his charter shal be accounted void of no force The good behauiour broken after a pardon 14 A prisoner that was indited outlawed of felonie 3. H. 7. 7. pleadeth the Kings pardon of the same felonie and outlawrie but shewed no writ of allowance testifying that he had found suretie in the Chauncerie according to the foresaid Statute of 10. Ed. 3. neither did he make mention in his plea that he had fouÌ„d suretie according to that Statute nor yet did he vouch the Record thereof in the Chauncerie therefore the Iustices had no cause to allow of his Charter of pardon And the same offendor after his pardon graunted was indited before the Iustices of peace of the countie where he dwelt that he did beat and wouÌ„d A.B. against the Kings peace and thereof was conuict before the same Iustices of peace by his owne confession which Record of his conuiction was sent into the Kings Bench by the said Iustices of peace and for that he had borne himselfe otherwise than he ought toward the peace his charter of pardon was adnulled he had iudgement of death and was hanged A pardon must agree with the inditement 15 A Charter of pardon ought to agrée with the Indictment in the name surname and addition of the partie to whom the same Charter is graunted to the intent that he may be knowne to be the same person which is indited or otherwise it is not allowable sauing in some speciall cases As 11. H. 4. 3â— in appeale of death where the plaintife was non-suit after declaration and the defendant was arraigned at the Kings suit vpon the declaration whereunto he pleaded the Kings pardon which did not agrée with the appeale in the name of him that was slaine Where a charter may vary from the indictment nor in the day but agréed with the inditement in the death of the selfe same man to the which inditement this pardon had before time bin pleaded and allowed And for that it may well be intended of the same death séeing one man cannot haue two deaths it was allowed notwithstanding the variance Two men were outlawed in appeale of murder 28. 29. H. 8. Dy. 34. and they purchased their pardon and had a Scire facias against the Plaintife in the appeale and also a Scire facias against the Lords mediate or immediate and the pardon did not agrée with the inditement in the additions but the parties tooke an auerment that they were the same parties which were indited and an exception was taken to the pardon for the words of the pardon were Pardonauimus c. W.B. L.B. omnes omnimodas vtlagarias versus praefatos W.B. L. B. seu versus eorum alterum promulgatas which words in the premisses of the pardon be ioynt where they should haue been Pardonauimus c. W.B. L.B. eorum alteri because that euery felonie is seuerall and for these seuerall felonies they should haue had seuerall pardons And yet the pardon was allowed If a man be indited of felonie by the name of A.B. yeoman and after the King doth pardon him by the name of A. B. gentleman esquire 20. H. 7. Kel fol. 58. knight or c. all manner of felonies he may plead this pardon and auerre that A. B. yeoman and A. B. gentleman or c. be one person and this pardon will discharge him for it may be he was a yeoman at the time of the inditement and after made gentleman by the King or by some office 4. E. 4. 10 16 When after non-suit in appeale the Kings pardon is allowed it is vsed to enter the pardon and alowance vpon the bill of appeale The pardon and alowance entred vpon the appeale and thâ—refore if there be any inditement of the same felonie against the defendant it shalbée good for him to cause these words to be entred and indorced vpoÌ„ the indictmeÌ„t viz. Cesset processus faciendus super indictamentum eo quod defendens acquietatus recessit ab Appello 4. Ed. 4. 10 17 All this matter of pardons is in effect to be referred to indictments because the Kings pardon is no plea to the parties appeale A pardon no plea to an appeale for the felon shalbée put to death notwithstanding that But it is a good plea against the King when the appeale is determined And if it be determined by act in law and not by the act of the partie the pardon shall not be allowed without warning of the partie as in appeal the plaintife doth pursue it vntill he hath outlawed the defendant in this case by the Outlawry the appeale is determined and yet if the king doe pardon the defendant the pardon shall not bée allowed vntill hée hath sued a Scire facias against the party at whose suit he was outlawed And if at the day of the Scire facias returned the partie doe appeare the Appellant may pray execution of him notwithstanding the pardon but if the Appellant be returned warned and doth make default the Charter shal be allowed without further suit Co. l. 50. 100 3. El. Dyer 201 261 The Kings pardon of burning in the hand In an appeale of murder the defendant pleaded not guiltie vpon his arraignment and by the enquest was found guiltie of manslaughter and then prayed and had his Clergie Whereupon by force of the Statute of anÌ„ 4. H. 7. 13. St. 4. H. 7. 13 he being a conuict person ought to bée marked by the Gaoler openly in the Court which marking or burning in the hand the king did and may pardon though it be in an appeale for burning in the hand is no part of the iudgement but onely a meane to notifie to the Iudge vpon an offendors second conuiction that he once before had his Clergie vpon a former conuiction And for that it was ordained by the Statute of anÌ„ 18. El. 6. St. 18. El. 6 That after Clergie allowed and burning in the hand the prisoner shall be forthwith enlarged and deliuered out of prison which act doth extend as well to the case of the Appeale as to the case of an Indictment Therefore the King hauing pardon the burning in the hand the partie was also discharged of his imprisonment 2. R. 3. 8 18 A Scire facias vpon a Charter of pardon may be graunted against an appellant Vpon a pardon a Scire facias against an appellant though the appellée which doth pray it sheweth
enquest of twelue women before the Iustices 22. As p. 71 25. Ed. 3. 42. 12. As p. 11 23. As p. 2. Fitz. Cor. 240. 253. who being then sworne to examine and trie the trueth shall take that woman into a chamber and search and trie whether she be quicke with childe or not and if she be found to be quicke with childe then execution of her shall be staied vntill she shall be deliuered But if shée be not quicke with child she shal be hanged presently for it will not auaile her to be yong with childe And yet whether shée be with child or not Iudgement shall not be delayed but shal be presently giuen against her that she shal be hanged but only the execution of that iudgement shal be stayed If after she is repried and deliuered of her childe and before the next Gaole deliuerie she be with child againe though she be quicke with childe execution shall not be staied but she shal be put to execution presently And yet in that case the truth of the matter being inquired of and found the shirife marshall or gaoler which had the custodie of her shal be fined for kéeping her so slackly that shée had the company of a man 13 If a man attainted of felonie be adiudged to be hanged Fi. Cor. 335 and the sherife doth carrie him to the place of execution and doth hang him and he breaketh the Rope and falleth downe before he be dead A man hanged falleth downe before he be dead In this case the sherife must take him and hang him againe for his iudgement is that he shal be carried to the place of execution and there be hanged vntill he be dead And so vntill he be dead the iudgement is not fully executed ⧠Forfeiture AFter an offendor is attainted of treason or felonie A felon shal forfeit lands and goods and hath had iudgement of death hée shall presently thereby forfeit his goods and also his lands sauing in certaine cases hereafter expressed though it be not mentioned in the iudgement And notwithstanding there is a difference betwéene treason and felonie concerning the forfeiture of lands yet touching the forfeiture of goodes they be all one for they shall be forfeited to the King St. 17. Ed. 2 16 as it appeareth by the Statute intituled Prerogatiua Regis which hath ordained That the King shall haue all the goodes of felons which be condemned and which be fugitiue wheresoeuer they be found and if they haue any fréeholde it shall be forthwith seised into the Kings hands and the King shall haue the profites thereof by the space of a yéere and a day and the land shall be wasted and destroyed in the houses woodes and gardeins and in all things belonging to the same except men of certaine priuiledged places And after the King hath had the yeare day and waste the land shall be restored to the chiefe Lord of the same Fée vnlesse that before hée redéeme the same yéere day and waste of the King by payment of a fine But there is a custome in the countie of Gloucester that after a yeare and day the lands and tenements of felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue descended if the felonie had not béene committed And in Kent in Gauelkinde the Father to the Bough the Sonne to the Plough there all the heires males shall diuide their inheritaunce and likewise women but women shall not make partition with men And a woman after the death of her husband shall be endowed of the moitie And if a woman doe committe fornication in her widdowhoode or take any husband she shall loose her Dower 22. As p. 96 Fit forfeiture 35. 2 A man being indicted before the Coroner of the death of an other man Forfeiture of goods and if it be further found by the same indictment that hée did flie for the said felonie although after he be acquitte of the same felonie 7. Eli. 35. Dy. 238. Co. l. 5. 109 and notwithstanding that the Enquest which did acquitte him doe say that he did not flie for the felonie yet his goodes shall be forfeited to the King For the King shal take holde of that Record which is most for his benefit and that is the Coroners Record And in like sort if one that is indicted of felonie Fitz. forf 32. Fi. Cor. 290 344. is acquitte thereof by verdict Flying for felonie if the Iury which did acquitte him will say that he did flie for the felonie he shall forfeit his goodes which he had at the time of the verdict giuen which being an auncient lawe of this Realme is grounded vpon this reason that notwithstanding his acquitall of the felonie yet he is to be suspected of the felonie for the vehement presumption which is risen of him as well in respect of his flying away as by the indictment And though the Enquest which did finde that he fled for the felonie be as touching that part of their verdict but an Enquest of office yet it is not trauersable because it is onely touching goodes for the which goodes no trauerse against the King is allowed by the Lawe for the Lawe doth accompt goodes inter minima de minimis non curat lex And though goods be in comparison of mans life or his lands in the eie of the Lawe called and accompted Minima yet they be not of so small value or so little to be regarded but the Iudge or the Coroner ought with all due circumspection foresée that the Iurie be not vpon ignoraunce or small euidence seduced to finde an vntrueth to the vtter vndooing of the partie indicted or accused Fi. Cor. 308 338. And in like sort if a man be indicted and arraigned of felonie and it is found by the Enquest or the Coroners Roll that hée fledde for the felonie he shall forfeit his goodes though hée hath the Kings pardon of the felonie for the charter of pardon doth containe the presumption of him that he is guiltie of the felonie An accessorie fled for the felonie 3 If a man be indited before the Coroner as accessorie to the death of an other man and it be found that he fled for the felonie 4. H. 7. 18 in this Case hée shall forfeit his goodes if hée were accessorie before the felonie committed But if it be found before the Coroner that hée was accessorie to the felonie after the offence committed and that he fled for the felonie hée shall not forfeit his goodes for the Coroner hath no authoritie to meddle with any that was accessorie after the homicide committed but onely with such by whose meanes the dead man was slaine or who were the causes of his death which the accessorie after the offence committed could not be And therefore when hée indicted one for receiuing of a murderer and that he fled this inditement of the receipt of the
to him and so no other person is intituled to haue those goods the King shall haue them as confiscat according to the old text Quod non capit Christus capit fiscus And the appellant shal be thus punished by the losse of his goods for his negligence attenuating concealing of the robbers offence Confiscation by a false appeale 20 If a man bring an Appeale of Robberie against another which tooke the Appellants goods lawfully Fitz. Cor. 367. and not feloniously viz. found them in the high way it is so found by verdict in this case though the appellée hath no cause to detaine them against the appellant for that they were his owne goods yet the plaintife shall loose them for his false appeale and they shall bee confiscat to the King and also the appellant shall bée committed to prison for charging the defendant with robberie whom he did know came lawfully by the goods Co. li. 5. 110 and so for malitious séeking of a mans bloud without cause and the defendant shal be discharged 21 There is another kind of forfeiture of felons goods to the King which is called a waif A waife and that is when a felon vpon huy and cry or other pursuit after him or for feare to bee taken er otherwise to ease himselfe of carriage Co. li. 5. 109 doth without Huy and crye wayue cast away or goe from the goods that hée did steals and hath in his possession or some part thereof and doth flye away whereupon the Kings Officers or some other in the Kings right doth seise those goods Seising of a waife In this case the goods so seised be called a waife and the King shall retaine them to his proper vse if the owner of them doth not make fresh suit after the felon to attaint him for those goods And if the owner doe make fresh suit after the felon hée shall haue his goods againe notwithstanding the waiuing and seising of them And this forfeiture of goods by waife is a penaltie which the law imposeth vpon the owner of those goods for default of fresh suit against the felon and for omitting his duetie in pursuing and apprehending of the felon being a pernitious and corrupt member of the Commonwealth St. 21. H. 8. 11. And by the Statute of 21. H. 8. the Iustices before whom any felon or felons shal be found guiltie or otherwise attainted by reason of euidence giuen by the partie robbed or owner of any money goods or cattels robbed or by any other by his procurement haue power to award from time to time writs of Restitution for the said money goods or cattels as though any such Felon or Felons were attainted at the suit of the party in Appeale But if a felon doe steale goods Co. li. 5. 109 and carrie them into a Mannor and there leaue them or leaue them in his owne house or in the house of any other or in the custodie of any other or hide them in the ground or in any secret place and after doth flie these goods shall not be adiudged in law to be waiued nor shall bée forfeited for if the felon hath not the goods with him when he doth flie or doth waiue them for feare to be taken they shall not be accounted waiued or forfeited but the owner may take them againe without fresh suit for that there is no default in him 22 If a felon do steale goods and after doth waiue them The owner seiseth goods waiued the owner of them may reseise the same goods and carrie them away twentie yeres after the waiuing of them if in the meane time no Officer of the Kings nor of any Lord of a libertie 21. Ed. 4. 16. hath seised them before the owner But if any Officer of the Kings or of any Lord of a Franchise hath seised them before then the owner must sue an Appeale against the felon and so he may haue his goods againe if hée hath made fresh suit or else the owner must procure the felon to be indicted arraigned and found guiltie or otherwise to be attainted by euidence giuen by himselfe or by some other by his procurement and by that meanes obtaine a writ of Restitution to be awarded by the Iustices before whom the sayd felon shall be arraigned according to the foresaid statute of 21. H. 8. 11. And the like law is if a felon do steale goods and doth not waiue them nor any Huy and crie is made vpon him but one in the Kings right doth take the goods from the felon vpon suspition that he hath stolne them yet the owner vpon fresh suit shall haue restitution of them againe for it may be that the owner had not intelligence of the stealing of his goods a long time after they were stolne and then could not make fresh suit nor leuie huy and crie 23 There can be no waife but of goods stolne sauing in certaine cases for if one do take goods as a trespassor and doth goe from them No waife but of stoln goods no man can seise them as a waife P. 13. E. 4. 5 And therefore in an action of Trespas of goods taken away if the defendant do iustifie for a waife it is a good issue for the plaintife to ioine that the goods were not stolne And if a man do fly for a felonie and leaue his house goods yet those goods shall not be a waife for that they were not stolne And in some speciall case there may be a waife though there be no stealing Waif of goods not stolne as vpon a huy and cry leuied 29. E. 3. 29. a man that hath committed no felony doth leaue his owne goods and doth flie to a church those goods may be seised to the Kings vse for a waife No waife of goods stolne from an Alien 24 If the goods of an Alien which hath the Kings safe conduct both for bodie and goods be stolne from him and by the felon bée after wayued and refused yet those goods cannot bée claimed or seised by the Officers of the King or of any Lord of a Franchise for a waife for when the King hath graunted to the Alien safeconduct both in bodie and goods and this is a couenant betwéene the King and him then if a felon doe steale his goods and after waiue them it is no reason that the Alien should loose them and be put to sue against the felon but he must sue to the King vpon his couenant And therefore the K. cannot haue those goods as waife and by the same reason hee cannot graunt them to another neither can any haue them by prescription Forf of lands 25 As he that is attainted of Treason or Felonie shal loose his goods debts and rights Tenant for yeares so also shall be forfeit his leases for terme of yeares of lands the lands which he holdeth by extent of Statutes Recognisances or Iudgemēts his
be supported and maintained with land to vphold the countenāce charge of the owner thereof And therfore this Earldome being by the K. giuen to the Earle the heires males of his body begotten is an inheritance which may discend from one heire male to an other and then by the speciall words of the before rehearsed Statute of 26. H. 8. and 5. Ed. 6. it shall be forfeited to the King by the said heires attainder of high treason for it was in the same heire an hereditament and whereof he had an estate of inheritance And moreouer when the King at the first did giue to this Earle and the heires males of his body begotten the foresaide great title of honour though there was no condition expressed in the same grant yet there was a secret condition implied therein viz. that the said grauntée and the heires males of his body should be assistant and seruiceable to the King his heires and successors by his Councell in the time of peace and by his force and prowesse in the time of warre Therefore when the heire male of this Earle the first grauntée did take Councell to breake the peace of the King and leuied warres and imployed his force and power against him he first brake the same secret condition which was annexed to his ancestors graunt of the Earledome And so there is reason and cause whie his said title of honour depending vpon the same condition should therewith cease and determine and that the same should returne againe to the Crowne from whence it was deriued The forfeture of lands in fée simple 27 Besides the forfeitures aforesaide 30. H. 6. 5. euery person that is attainted of high treason petit treason or felonie shall also forfeit his lands in fée simple which he hath in his owne right in vse or possession sauing that the attainder of treason by force of the Statute of Anno 5. El. 1. St. 5. El. 1. ordained against the maintaining of the authoritie of the Bishops and Sea of Rome shall not extend to make any corruption of bloud the disheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other than the offendor or offendors during his or their naturall liues onely And sauing that the attainder of treason by force of the Statute of Anno 5. Eliz. 11. St. 5. El. 11 prouided against the clipping washing filing or rounding of money maketh no corruption of bloud in the heire or forfeiture of dower in the wife And sauing that the attainder of treason by force of the Statute established Anno 18. El. 1. against impairing diminishing falsifying skaling St. 18. El. 1 or lightning of money maketh no corruption of bloud nor the wife to loose her dower for he that is attainted of that treason shall suffer death and forfeit all his goods and chattels to the King and all his lands during his life onely And likewise sauing that the attainder of felonie by force of the Statute made Anno 1. Iac. 12. against coniuration witchcraft enchantment St. 1. Iac. 12 charme and sorcerie maketh no corruption of bloud nor the forfeiture of the heires or successors inheritance of any land nor of the wiues title of dower And further sauing that the attainder of felonie by force of the Statute prouided Anno 1. M. 12. against vnlawfull assemblies St. 1. M. 12 maketh no corruption of bloud And moreouer sauing that the attainder of felonie by force of the Statute ordained Anno 5. El. 14. against the forging of Euidences St. 5. El. 14. and writings maketh no corruption of bloud nor forfeiture of land or dower And furthermore sauing that the attainder of felonie by force of the Statute of Anno 31. Eliz. 4. St. 31. El. 4 prouided against the imbeseling of the Quéenes ordnance armour or artillery maketh the offendor to forfeit no lands tenements or hereditaments any longer than during his life St. 4. Iac. 1. S. Triall by the country 10. Co. li. 7. 34 S. Br. 56. no corruption of bloud nor the wife to forfeit her dower And the same lawe is if an Englishman doe commit any felonie in Scotland And if a man haue an annuitie to him and his heires The forfeture of an annuity and he doe commit high treason and is attainted thereof he shall forfeit to the King the same annuitie by force of the before recited Statute of Anno 26. H. 8. 13. for that the same annuitie is an inheritance 28 He that is attainted of high treason petit treason or felonie Forfeiting of a title to land shall also forfeit such lands whereof he hath neither possession reuersion or remainder but onely a title or right or cause of action As if a man be disseised of lands and then the disseisée committeth high treason Co. l. 3. 10 after an office found thereof the king may seise those lands as forfeited and escheated vnto him in respect of the same persons attainder of treason And if the disseisée be attainted of petit treason or felonie the Lord of the Fée of whom the same lands be holden may enter into the same lands as escheated vnto him in respect o◠the attainder of his lawfull tenant But the Lord cannot haue a writ or escheat or other action to recouer the same land because his tenant died not or was not seized thereof but his onely remedie is to enter 6. H. 7. 9 And if a man make a lease for the terme of life of his land and after committeth felony and then the tenant for the terme of life dieth the Lord may enter but cannot haue a writ of escheat 29 As he that is attainted of treason or felony shal forfeit his lands Forfeiting of euidence so shal the Lord to whom those lands be forfeited 49. H. 6. 14 haue the euidēce of the same lands as escheated or forfeited vnto him to maintaine his title in the same lands escheated and to prooue how his late tenant came by and held the same lands St. 9. H. 3. 29 30 Though it is ordained by the statute of Magna Charta That iustice shall not be sold deferred or denied to no man neither shall any man be condemned but by lawfull triall and that it be further established by the statute of Anno 5. Edw. 3. St. 5. E. 3. 9 That no man shal be attached nor foreiudged of life lands or goods against the forme of the great Charter and the Law of the Realme So that the Law of the Realme doth allow to euery man that is an offendor his answere and lawfull triall be his crime supposed to be neuer so great and the proofe thereof neuer so manifest But if a man that is arrested of Treason or Felony or being vehemently suspected to haue committed Treason or Felony is attempted to be arrested be so wilfull stubborne or rebellious Forfeiture without at-attainder that he will
man be slaine within the K. house verge That all Inquisitions vpon the view of persons slaine within any of the Kings Palaces or houses or any other house at such time as he shall bee abiding in his royall person viz. within Edifices Courts places gardens orchards or houses within the Porters ward of any of the house or houses aboue rehearsed or within any gardens priuie walkes orchards tylt-yards wood-yards tenice playes cocke fights bowling allyes neere adioyning to any of the houses aboue rehearsed and being part of the same or within two hundred foot of the standard of any outward gate or gates of any of the houses aboue rehearsed commonly vsed for passage out or from any of the house or houses aboue specified shal be taken by the Coroner of the houshold of the King or his heires without adioyning of any other Coroner of any Shire by the othes of twelue or more of the Yeomen officers of the Kings c. houshold returned by the two Clerkes Comptrollers the Clerkes of the Checke Clerks Marshall or one of them for the time being of the foresayd houshold to whom the sayd Coroner shall direct his Precept which Coroner c. shall be assigned by the L. Steward for the time being And the said Coroner shall from time to time for euer without delay certifie vnder his Scale and the Seals of such persons as shal be so sworne before him all such Inquisitions Indictments and Offices vpon the view of all dead bodies which shall bee slaine within any of the K. Palaces or houses or other house aforesaid before the sayd L. Steward and in his absence before the Treasurer Comptroller and Steward of the Marshalsey or before two of them whereof the said Steward of the Marshalsey to be one And such Inquisitions and Offices so certified shal be taken as good to all intents as any Inquisition taken vpon the view of the bodie of any person being dead by any Coroner of any countie of this Realme hath béene or shal be adiudged St. 28. E. 1. 3 18 Whereas the foresaid stat of 28. E. 1. hath ordained One man Coroner of the K. house and of the county That if the death of a man doth chance in any county where the K. house is and within the Verge the Coroner of the same countie shal be commanded with the Coroner of the K. house to execute his office and to inroll it But if a murder or manslaughter be found within the countie of M. within the Verge by an Inquisition taken before one which is then both one of the Coroners of the county of M. and also Coroner of the K. house Co. li. 4. 46. and then there one is indicted of the same murder or manslaughter this is a good indictment for the intent and meaning of the said stat of 28. Ed. 1. is performed though not by two persons yet by one man hauing two offices and also the mischiefe recited in the said Act is auoyded for though the Court doth remoue yet the Coroner of the county may procéed ⧠Who shall be Iudge of Treason and Felonie 1HAuing written at large of Treasons and Felonies and shewed what sorts and how many of either of them there be and which of those were deliuered vs by the common law and which ordained by statute And declared who be principals and who be accessories in the said crimes how the offendors therein vpon a pricke and guilt of conscience doe ofttimes breake prison and indeuor to escape and how by Huy and cry and other means they be apprehended and brought to be tryed by the iustice of the law how they be accused by Appeals or Indictments in what sort they shal be restained and kept sub custodia legis in prison or by mainprise or bail vntil they haue answered their said offences And also hauing expressed what pleas the partie accused hath to plead for himselfe or other helps to defend himselfe by whom and what means those pleas shal be examined and what fauours bee affoorded him in the tryall therof and what iudgement execution forfeitures the law doth inflict vpon those that in contempt of her do commit the said capitall and most grieuous offence And further hauing dilated how a true man being vpon malice and falsly charged with felony by an Appeale or Indictment shall in some satisfaction of his discredit and losses recouer damages against the appellant his abettors or the conspirators And hauing laid open the authority duty of the Coroner who is a most antient officer of trust in this Realm a speciall preseruer of the peace of the King and the kingdome I am now lastly to write who shall bee Iudge in the foresaid Treasons and Felonies and shal inflict punishment vpon euerie transgressor of the said lawes according to his desert Wherein is to be considered that the dead letter of the common or statute law cannot be that Iudge to inquire of felons examine them commit them to prison indict them arraigne them allow them their lawfull triall examine their causes and yéeld them iustice according to their seueral demerits by acquital or condemnation but it must be Lex loquēs viz. That Iudge must be a man of learning and vprightnesse which by his mouth will speake and attribute to euery person that which the wisdome and integritie of his heart doth conceiue to be iust lawfull and due vnto them And though that Iudge ought so to be countenanced and protected by the regall authoritie that he shall not néed to feare the face of any man for doing of iustice and shall be enabled to crush and suppresse all offences within his iurisdiction yet the king himselfe cannot be that Iudge The K. cannot be Iudge in Treason or Felonie nor sit in iudgement in causes of treason or felonie because he is one of the parties to the iudgement for al treasons felonies be done be supposed to be done contrary to the peace crowne dignitie of the K. And further the escheates and other forf of lands leafes goods and cattels which do come by the attainder of any person of treason or felonie do for the most part by the law accrue to the king And so if the King might be Iudge hee should bee Iudge in his owne cause which Ius gentium doth not permit But the King by his Commission may commit that authoritie to others who may iudge betwéene him and the supposed offendor What sort of men ought to be Iudges And the King ought to make choyce of such a man to be Iudge as is wise and doth feare God who hath truth in his mouth and no couetousnesse in his heart who will neither decline from the troden path of iustice to the right hand nor to the left for the hope of prosperity or feare of aduersitie nor will draw the Kings sword to reuenge his owne wrongs who will denie iustice to none neither himselfe will expect or
or any of them in their Turnes or Lawdayes And as of other felonies 3. H. 7. 5. 5. E. 6. D. 69 9. H. 4. 1. so I. of peace may inquire of murder Murder because wilfull murder is felony But Iust of peace cannot inquire of treason Treason for neither the before mentioned stat of 18. E. 3. nor the words of their commission do authorise them so to do The Lord of a Mannor Iudge in felonie 13 There be some that haue libertie of Soc and Sac Tol and Them Bracton de Corona cap. 35. 2. R. 3. 10. Infangthéefe and Outfangthéefe these in their own courts may giue iudgement of him who is found within their liberty possessed of any manifest theft as if he be hand hauing and back bearing and that Sathaber viz. he whose the goods be do pursue him Kel fol. 150 for vnlesse he be in possession of the goods though another doth pursue him as a théefe yet that Court Hundred or Wapentake cannot hold plea of such a theft nor make inquirie by the Countrey whether such a man which was not possessed of the goods bee culpable or not Neither shall any wage battell without possession It is called Infangtheefe Infangthéefe where a Theefe is taken possessed of goods stolne within any such Manor or Libertie who is commorant and dwelling within the same libertie and one of the said Lords owne people Outfangthéefe Outfangthéef is a théefe that is a stranger comming from some other place into the Mannor of the Lord who hath such a libertie and is there taken with the manoure And yet he that hath such a libertie cannot fetch one of his owne people who hath committed larcenie out of his libertie and bring him into his libertie and iudge him there according to his libertie for euery person must receiue the punishment of the law where he hath offended the law But he may giue iudgement as well against his own people as against strangers committing larcenie that be taken within his libertie 46. Ed. 3. 15 14. H. 4. 15 And in this libertie of Infangthéefe and Outfangthéefe and in waife and stray and wreck of the sea a man may prescribe but so he cannot do in goods of felons and fugitiues for they do belong to the Crowne and cannot passe without the Kings graunt Fitz. Prescription 65 14 The custome of some countrey is such A felon first executed and then iudged that if one hath committed burglarie or other felonie and he be pursued by huy and cry from towne to town and so taken flying he must be beheaded in the presence of the inhabitants of foure townes and so by the vsage of that countrey he is accounted a felon And this must be recorded in the Coroners roll and after the Coroner must present it before the Iustices and they will adiudge him a felon And so he must be first put to death and after iudged a felon FINIS ⧠The generall Titles of this Booke 1MEnace Assault Batterie Jmprisonment Maiheming 2 Riots Routs vnlawfull and rebellious Assemblies 3 Force and Forcible Entries and Forcible detaining of possessions 4 Forgerie 5 Periurie and Subornation of Witnesse 6 Maintenance Champertie Embracerie 7 Deceit Couin Collusion Fraud 8 Extortion Exaction 9 Oppression 10 Treasons 11 Homicides 12 Felonies by the common Law 13 Felonies by Statute 14 Principall and Accessorie 15 Breaking of Prison and Rescous 16 Escapes of Felons 17 Pursute by Huy and Cry 18 Appeales of Felony 19 Jndictments 20 Mainprise and Bayle 21 Confession of the offence 22 Approuer 23 Sanctuarie and Abiuration 24 Pleading not guilty 25 Triall of the plea of not guilty by Battell 26 Triall by Peeres 27 Triall by the Countrey 28 Challenges 29 Euidence 30 The Verdict 31 Clergie 32 The Kings Pardon 33 Standing mute or answering indirectly 34 Judgement and Execution 35 Forfeitures for Treason or Felony 36 Corruption of Blood 37 Restitution of stolne goods 38 Dammages in an Appeale 39 A Writ of Conspiracie 40 The Coroner and his authority and dutie in Felonies 41 Who shall be Judge in Treason and Felonie ⧠A briefe effect of euery Braunch or Chapter in this Treatise Menace Assault Batterie Imprisonment Maiheming Fol. 1. 1 THe euill fruits of menaces Menacers shal be imprisoned The enormitie of libelling and defaming 2 The differences of Menacing Assault and Batterie 3 The declaration in trespas of menacing A rebuke accounted a Menace or Assault 4 Menacing a seruant wherby he departeth out of seruice 5 Menacing a tenant whereby he departeth from his tenancie Menacing of a Lords Freeholder 6 Menacing which is iustifiable 7 Menacing by going or riding armed 8 Wearing of a priuie coat a Menace 9 Labourers shall weare no weapons to preuent Menaces 10 Assurances made by Menace 11 What is an assault What is a batterie 12 Iustifying of beating in his owne defence Barre in trespas of Assault and Batterie 13 Iustifying of beating in defence of others The mastâ—rs remedy for beating of his seruant 14 Batterie in defence of his goods Battery in defence of his land lease or way 15 Batterie in resisting of a Iustice of Peace 16 A Schoolemaster beateth his Sholler 17 A Master beateth his Prentice 18 Beating of a man that is franticke 19 Beating of one that will not yeeld to arrest 20 Beating of a seruant departing out of seruice Beating of a Ward 21 Commaundement of Batterie 22 Battery or hurting at some exercise or disport 23 Battery by whipping of a vagabond Punishments by the order of Law 24 Battery for disobeying of a writ or warrant 25 Arresting one in a Church that is doing diuine seruice 26 Disturbing of a Preacher in his Sermon 27 Chiding in a Church or Churchyard Smiting in a church or churchyard Drawing or smiting with a weapon in a Church or c. 28 Drawing of blood within the kings palace 29 Assaulting one which commeth to the Parliament Assaulting the seruant of a Parliament man The liberty of the Clergie at a Conuocation house touching assaults 30 Assaulting a Iudge or Iuror Striking in time or place of iustice 31 Arresting by watchmen 32 Trespas for a battery before Outlawrie 33 A man first indicted for batterie and after sued for the same 34 What imprisonment is Voluntary consent no cause of imprisonment 35 Imprisonment by the commandement of the king or his Iustices c. 36 Imprisonment for notorious and grieuous offences 37 Imprisonment for offences done vi armis 38 Imprisonment for Riots 39 Imprisonment for holding land with force 40 Imprisonment of one that is pursued by huy and cry 41 Imprisonment of him that doth breake the peace Arresting of suspected persons 42 Imprisoning of him that doth attempt to rob 43 Assisting him to arrest that hath a warrant 44 Breaking of a house to arrest in what case lawfull 45 The shirife doth arrest and doth not returne his writ 46 Arresting vpon suspition of felony Causes of suspition of felony
excommunication in the plaintife 5 Who are mainpernable who not Bailement by the Shirife With-holding of Prisoners mainpernable 6 In what cases no mainprise by the common Law The King or Iustices commandement 7 The Marshall shall baile no prisoner The Iustices ordinarie or absolute commaundement 8 Mainprise for offendors in Vert or Venison 9 In what case hee that is outlawed may be bayled 10 Mainprise during an approuers life 11 Maineprise vpon good name The principall in Burglary and Robbery mainpernable 12 No bailement for a prisoner attainted 13 Bailement of offendors by Iustices of Peace 14 Bailement of offendors by the Shirife 15 Bailement by Shirifes and others 16 Imprisonment at the Kings pleasure 17 The difference betweene bailement in Felony and in a personall Action 18 Mainprise is matter of Record Confession of the offence Fol. 184. 1 An offendor in felony pleadeth one of three pleas 2 Confession of the offence before the Iudge vpon the prisoners arraignement may bee in two sorts Confession of the offence must be free and without menace 3 He that doth confesse his offence before the Iudge doth become an approuer 4 Confession of the offence before the Coroner whereupon abiuration doth ensue Approuer Fol. 185. 1 Who is an Approuer An Approuer shal be banished 2 Of what offences approuement may be 3 Approuement in an Indictment and not in an appeale 4 Before whom one may approue 5 How an Approuer shall vse himselfe No approuing after pleading An Approuer must tell truth 6 An Approuers oath 7 An Approuers wages 8 An Approuer set at liberty An Approuers appeale must be certaine 9 Proces against the appellees after the approuement 10 Pleas for the appellee against the approuer An Approuer attainted or conuict of Felony 11 An appellee cannot appeale others 12 An Approuer not in prison for felony or at liberty 13 The appellee an honest and credible man 14 Generall pleas in barre of the appeale 15 Where the king may pursue an Appeale begun 16 The appellants release to the appellee 17 An Approuer confesseth his Appeale to be false 18 An Appeale abating before declaration A Felon taken with the mannoure 19 No arraignment at the kings suit vpon a false declaration Where if not an appeale yet an Indictment may bee at the kings suit 20 The plaintife in the appeale excommunicat or outlawed 21 An Approuer pardoned the appellee shal be discharged 22 Vanquishing of one of the approuers 23 Examining of an offendor condemned Sanctuary and Abiuration Fol. 189. 1 What Sanctuarie is 2 What Abiuration is 3 All Sanctuaries be extinguished Abiuration by the common Law Abiuration to a place within the Realme 4 No abiuration for Treason 5 No abiuration for the robberie of a Church 6 No abiuration for a man attainted 7 No abiuration for a man before abiured 8 Where an offendor may bee drawne out of the Church by violence The offendors confession before the Coroner 9 Tarrying in a Church aboue the time limitted 10 The manner of Abiuration The oath of Abiuration 11 The attire of an abiured person 12 The vsing of persons abiured 13 The abiuration broken death ensueth A Clarke need not to abiure 14 Where no Felony no abiuration for Felony 15 The abiured pleadeth that he is not the same person The Kings pardon of Abiuration 16 Abiuration by a Recusant 17 Abiuration by a Popish Recusant 18 Abiuration by him that committeth Trespas Pleading not guilty Fol. 192. 1 The plea of not guilty the most common for a prisoner One may plead not guilty after other pleas 2 Where vpon the plea of not guilty counsel shal be allowed and where not Triall by Battaile Fol. 193. 1 Triall of not guilty by Battaile or by the Countrey 2 The forme of triall by Battaile 3 The reason why the defendant in an appeale may be tried by battaile 4 Counterpleas to the Battaile 5 Taken with the manoure 6 Breaking of prison 7 Le ts of triall by battell on the plaintifes part 8 Priuiledges of the appellants person The King A Citizen of London 9 No wager of battell in an appeale of Rape 10 One fighting with seuerall men 11 An Appeale by an approuer 12 The appellee wageth battell and then becommeth blind Triall by Peeres Fol. 196. 1 The triall of the plea of not guilty by Peeres 2 The forme of arraignement and triall of a Peere of this realme 3 By whom Peeres appealed shal be tried By whom Ladies shall be tryed 4 The triall of Bishops Arraignement and Tryall in Parliament 5 Triall of Treason committed in Ireland 6 Triall of Misprision of Treason The number of Peeres at the triall 7 Triall of Peeres by Peeres in all cases of Treason and Felonie Triall by the Countrey Fol. 198. 1 Triall of the plea of not guilty by the countrey 2 Triall by the country of forraine pleas A man stricken vpon the Sea dieth vpon the land 3 The Proces against the Iurie The Proces in an Appeale and not in an Indictment 4 Where a Nisi prius is grauntable in an Appeale 5 Remaunding of prisoners out of the Kings Bench into the Countrey 6 Triall of Felonies committed by English men in Scotland 7 The prosecutors and witnesses bound to giue euidence 8 The accessary tried though the principall be not 9 Euery Iuror must haue fiue pounds of freehold 10 The offendor shall forfeit no lands 11 A like Act made in Scotland 12 Scottishmen repairing into England to giue euidence shal be free from arresting 13 The offence shall be layed where it is done 14 Hee that is once tried shall not be eftsoones called into question 15 None shall bee sent out of England to receiue his tryall 16 The Iurors shall allow of or reiect the witnesses Challenge Fol. 201. 1 Where the prisoner is allowed to challenge peremptorily Seuerance in challenges 2 Which be challenges vpon cause for that hee was an indictor 3 Challenge for want of Medietatem linguae 4 Challenge for want of sufficient freehold 5 Challenge for the king 6 A man outlawed of Felony shall haue his challenge 7 A Iuror challenged for that he is an Alien a Villaine or Outlaw Euidence Fol. 204. 1 Some bound to giue euidence against an offendor let to baile 2 Some bound to giue euidēce against an offendor imprisoned 3 Restitution of goods vpon an attainder by euidence 4 Euidence giuen by a stranger 5 There must be two accusors to giue euidence in Treason 6 Euidence or accusors in high Treason 7 Euidence against abettors to offences 8 Euidence on the defendants part in Felony Verdict Fol. 206. 1 A Verdict at large may bee giuen in Felony 2 The Verdict sometime lesse penall then the Indictment 3 The Verdict sometime more penall then the Indictment 4 Where the Iury shal find who killed the dead man Clergy Fol. 207. 1 What Clergy is 2 Who shal not haue his clergy by the common Law 3 A committer of Sacriledge 4 The habite or tonsure of a Clerke 5 Clergie
Lord shall haue a Writ of Escheat and where he may enter 52 The forme of a Writ of Escheat 53 The kings remedy for lands escheated vnto him An office for those lands which doe escheat for Felony 54 The wiues forfeiture of title of Dower 55 What the appellee that wageth battell shall forfeit 56 A Rent-charge pro consilio not forfeited 57 The forfeitures of an outlaw Corruption of Blood Fol. 239. 1 Corruption of Blood salued by Parliament only 2 Where corruption of blood shall preiudice tenant by the courtesie 3 The eldest sonne attainted during his fathers life 4 Where attainder but no corruption of blood Restitution of stolne goods Fol. 240. 1 Restitution of goods vpon Fresh suit 2 What conuiction shal be sufficient to giue the owner restitution of his goods 3 Where the owner shall haue restitution 4 Before whom and by whom inquirie of Fresh suit is to bee made 5 Restitution vpon attainder by indictment Damages in Appeale Fol. 242. 1 The punishment of the appellant and the abettors when the appellee is acquit No Essoine for the appellant in an appeale of death 2 The appeale must bee commenced vpon malice 3 The statute of 13. Ed. 1. extendeth to all Felons 4 The defendant in an appeale acquited by battell 5 Where the accessarie in an Appeale shall recouer dammages 6 Where the defendant is said to acquit himselfe in due manner and where not 7 Acquitall at the Kings suit is only in appeale 8 What Iustices may inflict the penaltie vpon the Appellant 9 The dammages for seuerall persons assessed seuerally 10 Where the appellant shall pay a fine to the king 11 In what cases inquiry shall be made for the abettors 12 What pleas the abettors may plead 13 Proces against the abettors Nonsute in the proces against the abettors 14 A writ against the abettors by the appellee 15 Procurers of indictments for suits in spirituall courts A Writ of Conspiracie Fol. 245. 1 In what case a Writ of Conspiracie doth lye 2 Conspiracie maintenable vpon an acquitall in an indictment or appeale 3 The indictment must be false which giueth the Writ of Conspiracie 4 Conspiracie doubtfull whether true or false 5 The conspirators do become indictors A Iustice of Peace A giuer of Euidence 6 Who be conspirators 7 A Conspiracie must bee by more then one Where only one shal be charged in Conspiracie 8 No Writ of Conspiracie against the Husband and the Wife 9 The forme of the Writ of Conspiracie 10 The writ of Conspiracy for the accessarie 11 Barres in a writ of Conspiracie 12 Iudgement in Conspiracie A villanous iudgement 13 Inquiry of Conspiracie by Iustices 14 Inquiry of Conspirators at the kings or parties suit 15 Procurers of an indictment or an appeale in a forraine county 16 An offence supposed to bee done in a place where there is none such The Coroner and his authoritie and dutie in Felonies c. Fol. 249. 1 The office and duty of a Coroner 2 The Writ de Coronatore Eligendo 3 Who shall be Coroners and by whom they shal be chosen 4 Whether Coroners ought to be knights 5 Causes to remoue a Coroner 6 Where a Coroner shall haue fee and where not 7 What things Coroners shall inquire of 8 A Coroner shall execute his Office in his owne person A Câ—â—oner shall see the dead body A body buried taken vp againe 9 A Coroner must presently doe his office 10 A Coroner shall onely enquire of the death of a man A man slaine in an arme of the Sea A Coroner concealing or not apprehending a Felon 11 The force of a Coroners Record Which Coroners Record shall be preferred Abiuring before the Coroner Confession of breaking of Prison before the Coroner 12 Who ought to appeare vpon the Coroners Inquisition 13 The Coronour with the Sherife may take Appeales 14 Stopping vp of a place of daunger by the Coroners commaundement 15 Where the presence of all the Coroners is requisite and where but some one of them 16 The Coroner must record the euidence and bind the party to giue it 17 Inquiry of a man slaine within the Kings House and Verge 18 One man Coroner of the Kinges House and the Countie Who shall be Judge in Treason and Felony Fol. 253. 1 The King ought not to bee iudge in Treason or Felony What men of condition Iudges ought to be 2 None shall make Iudges but the King 3 Iudges vpon the arraignement of the Peeres of the Realme 4 Iudges of offences that are done in the Kings Pallace 5 Iudges of Conspiracies made to destroy the King or any Lord c. 6 Iudges within the Verge 7 Iudges of Treason committed out of the Realme 8 Iustices of Gaole deliuerie Iudges in Felony 9 Iudges of Nisi prius Iudges in Felony c. 10 Speciall commissioners Iudges at the arraignement of a Murderer 11 Iudges of piracie or offences done vpon the sea 12 Iustices of Peace Iudges in Felony 13 The Lord of a Mannour Iudge in Felony Infangtheefe Outfangtheefe 14 A Felon first executed and then iudged FINIS
VIRTVTE DOCTRINA PARIT DE PACE REGIS ET REGNI viz. A Treatise declaring which be the great and generall Offences of the Realme and the chiefe impediments of the peace of the King and the Kingdome as Menaces Assaults Batteries Treasons Homicides and Felonies Ryots Routs Vnlawfull assemblies Forcible entries Forgeries Periuries Maintenance Deceit Extortion Oppression And how many and what sorts of them there be and by whome and what means the sayd Offences and the Offendors therein are to bee restrained repressed or punished Which being reformed or duly checked Florebit pax Regis Regni Collected out of the Reports of the Common Lawes of this Realme and of the Statutes in force and out of the painfull workes of the Reuerend Iudges Sir Anthonie Fitzharbert Sir Robert Brooke Sir William Stanford Sir Iames Dyer Sir Edward Coke Knights and other learned Writers of our Lawes By FERDINANDO PVLRON of Lincolnes Inne Esquier LONDON Printed for the Companie of Stationers An. Dom. 1609. Cum Priuilegio The Preface to the Reader SEeing wee all haue receiued and allow it for truth That the ignorance of the Law doth excuse none of offence and also That the Law doth helpe the watchfull and not the slothfull man therefore it behoueth each person first to seeke the knowledge of those Lawes vnder which he doth liue and whereby he is to receiue benefit or to sustaine perill and next with al industry to frame his obedience vnto them or humbly to submit himselfe to the censure of them And though wee find by experience that some men by the sluggishnesse of their natures others by the carelesnesse of their owne welfares and a third sort wholly giuen ouer to pleasures and vanities do little respect to know and lesse to obey our criminall capitall Laws being things of great moment and importance and therfore doe ofttimes tast the smart of them and repent their follies when it is too late Notwithstanding for that there be many others which do endeuour to read them and imploy their industrie to conceiue them some for the increase of their knowledge others in their actions to be directed by them and many for the eschewing of the penalties of them yet do not wholly addict themselues to the studie of the Law therefore as neere as I can to satisfie the desires and to giue contentment to al the persons aforesaid I haue done my endeuor in this Treatise to lay open to all them that are willing to read and thereby to know which be the offences that the Law doth in generall tearmes condemne and do most tend to the breach or blemish of the peace of the Realme and to the dislike of all the good members thereof and what punishments she hath imposed vpon the transgressors therein and by whom in what maner to be inflicted If one man do pretend title vnto sue to recouer any land lease or goods of anothers all strangers stand indifferent and meddle no further but onely wish well to him that hath the best title desire that iustice may be done and right may preuaile but if a Treason Murder Burglarie Robberie Theft notorious Riot Forgerie Periurie Extortion or Oppression be committed then each man in conceit maketh it his owne case doth in a sort take it to bee done to himselfe and all persons generally do find fault with the transgressors therein they exclaime of them condemne thē in their hearts cry Crucifige vpon them And therefore the crimes aforesaid such like may bee tearmed generall offences partly for that they do redownd to the generall dislike of all the good members of the realm and partly for that they tend to the breach or blemish of the peace being a thing generally imbraced or wished for which the king all his good subiects are bound and in a sort haue vndertaken to maintaine and therefore as the king hath an interest in them or iurisdiction ouer them all to punish the offendors in them as transgressors of his lawes and disquieters of his peace and people so hath euery other well gouerned member of the Commonweale a care and regard of them foreseeing that he may receiue the like wrong and tast the same abuse by the said or other such malefactors meanes and for that cause doth proclaime open warre against them and is as desirous to root them out as the husbandman his thistles out of his good corne or the gardner his nettles from his sweet flowers Wherefore seeing a guiltie person in any of the crimes aforesaid is persecuted in deed or consent by all wishing well to the Weale-publique or their owne priuat estates it is requisit that good men which eschew to offend for the loue of vertue and euill men which feare to offend for the dread of punishment should both know those lawes which they are to make vse of and the penalties which be threatned to the infringers thereof to the intent that the good man hauing a will to stand may trust to his feet remaine firme and continue his integritie and the euill minded man beginning to stagger may bend his endeuour to stay and slide no further All which by this worke good Reader I labour to performe to the intent that the well meaning man being made the better and he that before was lewdly disposed the lesse hurtfull may both at the last meet and ioyne in seeking and furtherance of that peace which will be comfortable to the King and Realme and pleasing both to God and man The question may be asked me Wherefore I intitle my Booke De pace Regis Regni and yet do chiefly make mention therein of those crimes which doe most disturbe the peace of the King and the kingdome and so make the Booke and the title as it were oppositum in subiecto Whereunto I answer That the peace whereof I do write is not obtained by the said offences committed but by the lawes that do punish or restraine them which lawes also I haue set downe at large in this Treatise being the principall marke that I desire the Reader to behold As many Physitians haue written large volumes of seuerall infirmities in mans bodie and then expressed which bee the Medicines to cure them not to the intent to allure the Reader to seeke the disease but how to preuent it before he hath it or how to be rid of it when he hath taken it And seuerall Diuines haue composed whole Tomes of Pride Malice Couetousnesse and such like offences not to the intent to intice the fraile man to fall into them but to shew the enormities of them how grieuous they bee in Gods sight and how hee hath threatned deepely to plague the offendors therein to the end they might dehort and discourage transgressors from them and might allure and winne them to humilitie forgiuenesse patience charitie repentance and other vertues And so I name my Booke of the quiet euent and not of the persecuting cause of
the patient cured and not diseased of the sinner reclaimed and not persisting in vice of that peace which I would haue and wish might flourish and not of those Lawes that by awe do worke it For these Lawes whereof I doe write and some others How the Lawes doe preserue the peace of the King doe preserue the peace of the King in that they doe assure vs who is our King doe settle and continue the Crowne on his head do put the Sword and Scepter in his hand doe attribute to him seuerall Regall Titles Honours and Prerogatiues doe bind his Subiects to performe all loyaltie duetie and obedience vnto him and lay heauie punishments vpon the withstanders or deniers thereof These Lawes bee as his Priuie Counsellours incessantly respecting the preseruation of his person peace Crowne and dignitie These be as his Gentlemen Pentioners attending daily in his presence to do him all princely honor and seruice These bee as the Yeomen of his guard waiting day and night to protect his person in peace from all forcible assaults and other perils These bee as his great and goodly Shippes which lye houering on the Seas and his strong castles and forts of defence which stand firmly vpon the land wherewith he doth preuent forrein hostilitie represse inward tumults and so keep himself and his people in peace These be as the Iudges Iustices Sherifes Constables and other Officers watching euerie houre and moment in all the Shires places corners and creekes of the Realme to represse outrages and to maintain his peace And lastly these be to him as his mynt by which he doth coyn gold and siluer to defend himselfe and his people in the time of warre and to support his honour and royall estate in the time of peace How the Lawes doe preserue euerie person in peace And also by the protection of these Lawes euerie good member of the whole kingdome doth receiue the like benefit of peace for in feare of them each person doth enioy his life and limmes in peace and is defended from the bloudie minded murderer and manqueller and the rage of the furious quareller and fighter And in feare of them the housekeeper resteth in peace with his wife and family vnder his owne roof without being assaulted by burglers And in feare of them the traueller iournieth in peace from one country to another without being spoiled by robbers And in feare of them the Grasiers cattell do feed quietly in his pasture without being stolne by theeues The terrour of the Lawes do ofttimes restraine cholericke or contentious spirits from Batteries Riots Routs Forcible entries and other outrages and couetous and greedy persons from practising or procuring of forgeries and godlesse and irreligious people from persuading or committing of periuries and false and guilefull persons from putting in vre of frauds and deceits and impudent and shamelesse men to wrest from others by briberie extortion or oppression And diuers there be who neither by the lawes of God of nature or reason will be bridled and reduced to vertue yet by the penalties feare of some of our capital and criminal laws do yeeld to be curbed refrain from the practise of their vicious liues of whom the saying of the Poet may be verified Oderunt peccare mali formidine poenae And so I may truly verifie that the Lawes whereof I do write be the meanes of the peace of the K. and the kingdom And so long as the offences in this Treatise specified shall be reformed or duely checked by these Lawes Florebit pax Regis Regni But though peace be mine end and peace the marke that I roue at yet there be some that thinke that the diuulging of our criminall and capitall Laws in our mother tongue will not be a meane of that peace which I do so much ayme at for that as they surmise the same Lawes may then be misconstrued by euerie ignorant and vnlearned person that can read English and the sence and meaning thereof may be mistaken the reader himselfe may be led into errour and others may be misinformed by his imbecilitie of iudgement seeing the same reader is able only to looke into the letter of the law and not to discerne of the intent of the makers or of the true sence thereof And do alledge for their reason the same that was obiected at the making of the Statute of Ann̄ 34. H. 8. St. 34. H. 8. ordained for the restraint of seuerall persons to read the Scriptures in the English tongue for feare of raising of heresies and schismes in Gods church surmising then that ignorance was the mother of deuotion as these men now would make her of obedience But if the same parties will looke backe they shall find the said Statute repealed St. 1. E. 6. 12 and by the learning and practise of the former our present age the reason aforesaid refelled Men may not surcease to read the Scriptures because the diuell misconstruing the Psalme Psal 90. Math. 4. would haue persuaded thereby Iesus Christ the sonne of God to cast himselfe downe headlong from the pynacle of the Temple Nor for that the Saduces being deceiued in a place of Deutronomie Deut. 25. Math 22. would haue inferred by the woman which maried seuen brethren that there is no resurrection of the dead Nor for that S. Paul in his Epistles did write certaine obscure things to be vnderstood 2. Pet. 3. which vnlearned and vnconstant men depraued as they did other Scriptures to their owne destruction For this deprauing misconstruing or wresting of the lawes of God or man out of their true meaning proper sence doth conuince the reader of ignorance pride selfe loue or folly and doth nothing impeach the credit of the same laws nor the necessitie or conueniencie of them nor the considerat iudgement of the law-makers We perceiue by the questions demurrers argumēts which oft do arise amongst the reuerent Iudges and learned men in the lawes of our Realme touching the construction and true meaning of diuers of our Statutes and common lawes that the old Prouerbe is true Nemo nascitur artifex viz. No man is borne vnto or at the first can obtaine the perfect vnderstanding of any learning science or art whatsoeuer but euerie person beginneth in ignorance then increaseth in knowledge by little little according to his capacitie and diligence For as the Pomander doth giue a pleasant sauour only whē it is rubbed and the flint doth yeeld fire onely when it is beaten so knowledge in all lawes and other learnings is obtained onely by much studie due consideration deep digestion thereof as an hole is made in the hard stone by the often dropping of the soft and liquid water And therfore if the busie searcher of other mens knowledge and carper at their ignorance will with the eyes of his mind looke into the old and new Testament and euery booke place and particle thereof and into
and the disseisée may at his choyce either haue an Assise and recouer double dammages and the defendant shal be amerced or else the K. vpon complaint shall redresse the matter If lands be graunted by the Kings Patent without any title sound by Enquest St. 1. H. 4. 8. or where the Kings entrie is not giuen by the law and if any be put out or disseised of his fréehold thereby this is an oppression And the partie put out shal haue a speciall Assise against the kings Patentée and recouer treble dammages Oppression by approuement of common 2 If the Lord of a Mannor wherein he hath certaine fréehold tenants and certaine neighbours do approue some part of the wasts woods or pastures of the same Mannor not leauing to his said tenants and neighbours sufficient common of pasture vnto their tenements or not sufficient and conuenient ingresse and regresse to the same this is an oppression of the same tenants and a disseisin of their common And the sayd tenants and neighbours or any of them may by force of the Statutes of Merton and West 2. St. 20. H. 3. 4 St. 13. E. 1. 46. bring an Assise of Common of pasture against the Lord who doth so approue and oppresse And if it be found by the Iurie that their ingresse and regresse were any thing hindered by the deforceors or that they had not sufficient pasture then they shall recouer their seisin by the view of the Iurors so that by their discretion and othe they shall haue sufficient pasture ingresse and regresse and the disseisors shall be amerced and render dammages which dammages by force of the statute of Anno 3. Ed. 6. St. 3. E. 6. 3. shall be trebled by the iudgement of the Court where such Assise and iudgement shall be had Oppression by surcharge of common And so it is if the Lord of a Manor doth surcharge the common with so many cattell Fitz. Admes 11. Common 29. as that his fréeholders or neighbours cannot haue sufficient common for their cattell as they had woont to haue or as they ought to haue belonging to their tenements this is an oppression and disseisin of their common and any of them may bring an Assise of Common of pasture against the said Lord and recouer his common and his dammages Inclosure of common by cause of vicinage is no oppression But if there be two Lords of two seuerall Mannors which haue two wasts adioyning parcell of their mannors Co. li. 4. 38. lying together without inclosure or seperation and yet the bounds of each mannor is well knowne by certaine méers and marks in which wasts the tenants of the one mannor and of the other haue reciprocally had and vsed common by cause of vicinage 13. H. 7. 14 M. 14 Eliz. Dyer 316. In this case one of those Lords may inclose against the other by that meanes vtterly take away his common by cause of vicinage from him though it hath béene otherwise vsed time out of the remembrance of man And this common per cause de vicinage is rather an excuse of a Trespasse when the cattell of the tenant of one Mannor do stray into the wasts of the other Mannor than any certaine inheritance for the tenants of one Mannor may not put their cattell into the wast of the other Mannor but they may come thither onely by escape and this inclosure is onely to preuent the escape of the cattell which is a lawfull act and no oppression For in the case aforesaid where the wasts of both the Mannors be adioyning together and that the one of them hath common with the other by cause of vicinage Co. li. 7. 5. and that the one village hath an hundred acres of common and the other but fiftie acres of common Commoners shall charge common according to the quantity thereof in this case the inhabitants of the village which hath but fiftie acres of common can put no more cattell into their sayd common of fiftie acres than it will maintaine without hauing respect to the common in the said hundred acres for if they do it is an oppression and wrong nece conuerso for the originall cause of this common by cause of vicinage was not for profit but for preuenting of suits in a Champion countrey in respect of reciprocall escapes from one towne to another 3 It appeareth by the preamble of the statute of Marlebridge that they who tooke distresses of their tenants or neighbours for rents supposed to bée due to them or for any trespasses done to them and after did driue the same distresses forth of the countie where they were taken to be impownded in another countie were accounted to do it to oppresse them whose cattell they so did distrain and impownd and the same was also adiudged an act done against the peace whereupon for the eschewing of such oppressions by the same statute and also by the statute of West 1. St. 25. H. 3. 4 St. 3. E. 1. 16. it was ordained Oppression by distresses That no man shall cause a distresse to be driuen forth of the Countie wherein it was taken And for the auoiding of the like oppressions vexations and troubles by a statute made Anno 1. St. 1. 2. P. M. 12. 2. P. M. it was enacted That whosoeuer shall driue any distresse out of the Hundred Rape Wapentake or Lath where it was taken except it be to a pownd ouert within the same shire being not aboue thrée miles distant from the place where it is taken or shall impownd in seuerall places goods distrained for any cause at one time whereby the owner shall be constrained to sue seuerall Repleuies for the deliuerie of the same distresses shall forfeit to the partie grieued for euerie such offence fiue pounds and treble dammages And whosoeuer doth take for kéeping in pownd pondage Pondage money or the impownding of a whole distresse aboue iiij d. or doth take so much where lesse hath vsually béen taken shall forfeit to the partie grieued fiue pounds and so much as hée taketh ouer the said iiij pence And because the law hath deuised that one neighbour may distraine the goods of another for his debt duetie or dammages sustained and that the same distresse shall be reasonable according to the quantitie of the sayd supposed debt or dammages and that then the same distresse shall bée put in a pownd ouert sub custodia legis vntill it bée decided whether the same was taken vpon iust cause or not and not to the end that one neighbour should by distraining vniustly oppresse another or demaund of him that which is not due or put him to further charge or trouble than the necessitie of that cause for the recouerie of his owne debt or damages required therefore by the before mentioned statute of Marlebridge it was further established That if one neighbour take a distresse of another whereby he hath receiued
who was accessarie before the birth of the childe and the murder done was adiudged to continue accessarie after the murder done and to suffer death without the benefit of his Clergie Fitz. Cor. 383 30 If a man intending the death of another Meaning without act is not homicide doth beate him so gréeuously that he doth leaue him by all the beholders iudgement thought to be dead and then doth flie away and after the other doth reuiue and liue this is not felony in him that did that violence though it doth plainely appeare that hée had a meaning to kill him for it is not felony except the partie stricken be indéede killed and die within a yéere and a day after the stripes giuen But on the other side if one man doe strike another with intent onely to beate him yet if hée die of this battery within a yeare and a day after it is felonie in him that did strike him For though as Bracton affirmeth Act without meaning is homicide the old Lawe of this Realme did hold Quod in maleficijs spectatur voluntas non exitus nihil interest vtrùm quis occidat an causam mortis praebeat But now we say Lex antiqua mutatur and doe affirme Quod exitus in maleficijs spectatur non voluntas duntaxat Co. l. 4. 40. 31 A man brought drinke to another that was mingled with poison Homicide by giuing poisoned drinke to another and aduised him to drinke it telling him that it would be a meane to procure him to get a childe of his wife by reason of which perswasion he to whom that poisoned drinke was brought did receiue it after drunke it in the absence of him who brought it vnto him and shortly after died In this case hee that brought the drinke was adiudged a principall murderer though he was not present at the time of the receipt of the drinke or otherwise he shoulde haue beene guiltie of that horrible offence and yet haue escaped vnpunished for there was none in this case to whom hee could be accessarie And so note this for a speciall case where a felonie is committed and neither principall nor accessarie be present at it Many doe attempt an vnlawfull acte and one of them committeth homicide 32 If seuerall persons assemble together to doe a disseisin Fitz. Cor. 350. 11. H. 4. 13. to breake a house or commit any vnlawfull act and of them killeth a man he and all the other shal be adiudged principall fellons because they all came to doe an euill acte though not that act As if they all had come to haue killed or robbed one man and after they killed or robbed an other Homicide by carying abroad 33 A man was indicted that he did feloniously carry his owne father being sicke against his will in a frostie and colde time from one towne to an other whereof he died and this was adiudged felony in him 2. Ed. 3. 18 for in this case the sonne had a meaning that his fathers life should be shortened and he brought to his death A man dieth in the hands of a Phisition or Surgion 34 If a phisition ar surgion hath a man in his cure Fit cor 163 who dieth being in his cure or at any time after this is not felony in the same phisition or surgion bicause he did not any thing to his patient with a felonious intent but against his will And moreouer it is not to be discerned whether the man came to his death by any willfull default in the said Phisition or Surgion or by his former infirmitie or other cause Homicide vpon the euill wordes of an other 35 Anno. 3. Ed. 3. Itin. North Fit cor 331 it was presented that through the euill wordes of a woman two men did fall out and fought and one of them killed an other and this was adiudged felony in the woman But it must be intended that the woman by her words did perswade councell or aduise them or one of them to fight with the other and so was accessarie before the felonie committed Homicide by a franticke man 36 A man that is franticke though he kill an other man M. 21. H. 7. 13. Fitz. forf 33 Fi. Dower 183. Fitz. N. b. 202. d Fitz. cor 193 351. Co. l. 4. 42 26. Ass p. 27 Plow com 19. Co. l. 4. 125 cannot commit murder for he hath not a felonious intent nor doth carrie within him malice prepenced to any neyther doth know what he doth And therefore he is not to be arraigned for the killing of a man in his Lunacie though after hee doth recouer his memorie neither shall he be inforced to sue for his pardon And the same law is of a man that is deafe and dumbe who can not commit murder for he hath not a felonious intent neither doth he know what hee doth And therefore if he kill a man he shall not be arraigned thereof nor driuen to sue for his pardon But if a man that is drunke doe in his drunkennes kill an other man it is felony and he shal be hanged therefore for it is voluntarie ignorance in him to be drunke Homicide by an Infant 37 An Infant of the age of twelue yeares 3. H. 7. 2. 12. 12. Aff. p. 30 or aboue may commit murder and so may an Infant of the age of eight or nine yeares if it may appeare by hiding of the person slaine or by any other act that the aboundance of his malice doth excéede the tendernes of his yéeres But if an enfant of tender and yonger yéeres doe kill a man this is no felonie because he wanteth discretion and vnderstanding Pl. com 19. and the Lawe will impute it to the ignorance which commeth to him by nature Fit cor 311. 38 If a man hath a beast that is accustomed to doe hurt Homicide by a beast and the owner knowing thereof doth not tie him or otherwise kéepe him fast shut vp but suffer him to goe at libertie and after that beast killeth a man this is felony in the owner for by his sufferance of the beast to goe at libertie the owner doth seeme to haue a will to kill or that hée vsed this beast as an instrument wherewith to kill And this was a Lawe ordained by Alured Alured king of the West Saxons Fit cor 263 22. Ass p. 94 39 To make it Homicide it is requisite that the partie killed be in Esse In homicide the party killed must be in Esse viz. in rerum natura for if a man kill an infant in his mothers wombe this is no felonie neither shall he forfeit any thing for it and that for two causes the one because the thing had no name of Baptisme the other for that it is hard to iudge if the infant died of that batterie or not or vpon some other cause Wherefore a man being indicted in