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. anÌ 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 AnnÌ 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 teÌporall 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
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 offeÌd 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 maÌs 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 exââtions 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
dammages In appeale the acquitall of the principall is not the acquitall of the accessorie for if he will recouer dammages he must be tried notwithstanding the acquitall of the principall But some doe thinke that he shall recouer dammages by the acquitall of the principall without being further tried or otherwise it would ensue that the Court should admit an accessorie where there had béene no principall which were inconuenient ⧠Breaking of Prison and Rescous BY the common Law of this Realme if a man had béen imprisoned and broken the prison hée should haue béene hanged for what cause soeuer he had béene imprisoned yea although it had béene but for trespasse Which great enormitie was redressed by the statute of Anno 1. Ed. 2. intituled St. 1. Ed. 2. De frangentibus prisonam the wordes wââreof be these Touching prisoners breaking of prison our Lord the King doth will and commaund that none which from hencefoorth doe breake prison shall haue iudgement of life and member for the breaking of prison onely except the cause for the which he was taken and imprisoned doth require such iudgement if hée should haue béene conuicted thereof according to the lawe and custome of the Realme though in times past it hath béene otherwise vsed And therefore it is to be considered who is a prisoner and what is breaking of prison Who is a prisoner according to the meaning of the foresaide Statute Euery person who is vnder arrest for felony is a prisoner aswel being out of the Gaole as within So that if hée be but in the Stockes in the stréete or out of the Stockes in the possession of any that hath arrested him 1. Ed. 3. 17. 1. M. Di. 99 and doth make an escape that is a breaking of prison in the prisoner for imprisonment is none other but a restraint of libertie 2 Though the letter of the stat of AnÌ 1. Ed. 2. 1. H. 7. 6. 25. Ed. 3. 42 1. Ed. 3. 17. be touching prisoners breaking of prison A stranger breaketh prison yet if a stranger do breake the prison he is within the compasse of this statute for that by the common lawe this was a breaking of prison in a stranger and felonie in him at that time and is felonie also at this time in the prisoner that escapeth by force of such breaking of prison by a stranger although before the said Statute it was not felony in the prisoner Letting a prisoner escape 3 If a Gaoler or any other which kéepeth a prisoner vnder arrest doe let him goe at libertie this is not felonie in the prisoner because it was no breaking of prison in the Gaoler But all the felonie in this case resteth in him who did let the prisoner escape and that is by a voluntary escape and not by breaking of prison which is felony in him that suffered him to escape 2. Ed. 3. 1 4 If by the negligence of the Gaoler or any other which hath the prisoner vnder arrest the prisoner doe escape Negligent escape this is felonie in the prisoner that doth escape for that the prisoner in making of escape did breake the prison but it is not felonie in him out of whose custodie he did escape 5 To breake prison is intended aswell of a Rescous made of a prisoner Rescuing of a prisoner as of breaking of prison 1. H. 7. 6. As if a prisoner be vnder arrest for felony and a stranger will feloniously take him out of the possession of him that hath arrested him this Rescous is a breaking of prison and is felonie as wel in the partie which escapeth as in him that made the Rescous and so was it by the common law Fi. Cor. 333 6 If a stranger disturbe the arresting of a felon Disturbing of arrest that manner of Rescous is not felonie for the letting of a felon escape which is not arrested for felony is not felonie but if the felon had beene taken and arrested and after rescued this had béene felonie 2. Ed. 3. 1. 1. H. 7. 6. 7 If the Sherife returne a Rescous The Sherife returneth a Rescous of a felon taken out of his possession or doe returne an escape that the prisoner escaped from him this wil not serue as an indictment to put the partie to answer thereunto for that it is contrarie to the Statutes of 25. Ed. 3. 28. Ed. 3. 42. Ed. 3. St. 25. E. 3. 4 St. 28. E. 3. 3 St. 42. E. 3. 2. which haue ordained That none shall be imprisoned or put out of his fréehold without an indictment or presentment before Iustices or some matter of Record or by due Proces or by writ originall which the Sherifes returne is not S. Indictments 19. 2. Ed. 3. 1. 8 It is no difference whose prison the offendor doth breake viz. Whos 's the prison broken must be whether it be the Kings prison the Lords of a fraunchise or any other persons for whose soeuer it be the offendor is within the compasse of this statute though it was otherwise before the Statute Britton viz. it was not felonie vnlesse he had broken the Kings prison 9 If one be attached taken for trespasse Attachment for trespasse and he which is attached doth ecape or is rescued by a stranger this is no felonie but trespas for that the Statute saith St. 1. E. 2. Except the cause for the which he is taken and imprisoned doth require such iudgement But yet the fine shal be according to the qualitie of the person to whom the rescous is made according to the time and place wheÌ where it is done 22. Ed. 3. 13 A Iustice sitting in iudgement arresteth an offendor And therfore if a Iustice assigned shall arrest a man that maketh a fraie before him and a stranger doth rescue him by force whereof the prisoner escapeth in this case as wel the prisoner as he that made the rescous shal be disherited and shal suffer perpetuall imprisonment for that the attachment of such a Iustice was the attachment of the King himselfe in the iudgement of the law But if such a Iustice make an arrest when he is out of his place then such an arrest and escape is but fineable nor of any other effect but as if the Sherife or some other officer had made the arrest 1. H. 7. 6. 10 If a maÌ be rescued at the gallows or as he is in going to executioÌ this is within the compasse of this Statute Rescous after iudgement for the words of the Statute shal be inteÌded aswell in the preter tence as in the present tence viz. as well of iudgemeÌt giuen as of iudgement to be giuen for the cause for the which he was taken and imprisoned did require such iudgement The imprisonment and not the attainder respected 11 It is not material whether the prisoner which did escape was 1. Ed. 3.17 or
desire to haue remoued or put out of his Iurie certaine persons And hée may therein haue more fauour than either of the parties to a suit shall haue in other tryals betwéene partie and partie For being arraigned of felonie he may haue a peremptory challenge Peremptorie Challenge in fauour of life which is to say challenge without shewing cause And though he can shew no cause to challenge him that he doth challenge yet if his phantasie or affection doth not stand vnto him by this peremptorie challenge he may cause him to bee remoued and put from the Iurie And by the common law this peremptorie challenge was permitted to the number of 35. persons viz. to so many as would make vp full thrée Iuries sauing one man But sithence by a Statute made Anno 22. H. 8. St. 22. H. 8. 14. Anno 32. H. 8. 3. it is enacted That no person arraigned for any petit Treason Murder or Felonie shall be from henceforth admitted to any peremptorie challenge aboue the number of twentie And so by this statute the number is abridged in three special cases viz. in Petit treason Murder and Felonie And so for High treason peremptorie challenge did remaine as it was at the common law vntill it was wholly taken away by the Statute of Anno 33. H. 8. St. 33. H. 8. 23. which did ordaine That peremptorie challenge should not thenceforth be admitted or allowed in cases of High treason or Misprision of treason And yet after that challenge was againe reuiued in cases of High treason by a statute made Anno 1. 2. P. M. St. 1. 2. P. M. 10. whereby it was enacted That all tryals hereafter to bée had awarded or made for any Treason shall bee had and vsed onely according to the due order and course of the common Lawes of this Realme and not otherwise And then if all tryals in Treasons shall bée according to the common Law peremptorie challenge shall be allowed vpon trial according to the course of the common law as well in Petit treason as in High treason A man being arraigned of High treason 32. H. 6. 20 14. H. 7. 19 and pleading not guiltie certaine of the Iurors were sworne and tried the residue being drawne forth by challenge and the Enquest remaining for default of Iurors at another day the defendant did peremptorily challenge some of those that were first sworne and the challenge was allowed in fauour of life 2. R. 3. 13. And in an Appeale of Robberie the defendant challenged a Iuror for a cause which was tryed against him and then the Iurie remained for default of Iurors and at another day hee challenged the same Iuror peremptorily and he was allowed so to do This peremptorie challenge is not to be taken but where the life of the prisoner is in ieopardie by the tryall And therefore if a man be outlawed of treason or felonie and brought to the barre and there doth plead misnaming or some other plea in auoidance of the sayd outlawrie in that case he shal not haue his peremptorie challenge for that neither treason nor felonie is to be tryed by this issue because they were at an end before by the outlawrie Seuerance in challenge If two thrée foure or more persons be indicted or appealed and arraigned of one offence 9. Ed. 4. 27. Pl. Com. 100. and one enquest is charged to trye them al if one of those persons arraigned do challenge peremptorily any of those Iurors he shal be drawne and put out for them all though one or some other doe desire that he may be sworne for though they be all arraigned together yet in the iudgement of law it is seuerall arraignments for that their offences be seuerall and not one though they be indicted of one offence and so euerie of the prisoners shall haue his challenge so that he do not challenge peremptorily aboue the number of twentie persons But if the Court will it may diuide the panell and also the Tales and make them seuerall for euerie of the prisoners and then euery prisoners challenge shal be by it selfe and auaile himselfe onely that maketh it 2 Besides the foresaid peremptorie challenge which is grounded vpon opinion or phantasie without cause there is another kinde of challenge which is called Challenge vpon cause Challenge vpon cause and is not allowable but vpon reasonable and good cause ordained by the common lawes or statutes of this Realme Whereof one challenge which was at the common law and is also confirmed by statute is a challenge of the indictors for as Britton Britton saith when the defendant doth submit himselfe to be tryed by the countrey and the Iurors doe appeare at the barre they may be challenged and the prisoner may say 27. As p. 13. This man ought not to bée of my Iurie for he did indict me and I doe presume of him and of all my indictors Indictor that they doe carrie the same affection towards me now which they did when they indicted me and this exception is to be alowed in case of death And the same law is confirmed and in a sort augmented by the statute de proditionibus made Anno 25. Ed. 3. St. 25. E. 3. 3 by the which it was accorded That no indictor shall bée put in Enquests vpon the deliuerance of the indictées of Trespasse or of Felonies if hée be challenged for that cause by him that is indicted And as it may appeare this Statute is but a confirmation of the common law in this point and so to be taken fauourably 8. H. 4. 3. 7. E. 4 4 and by that meanes it may be extended as well to Treasons as to Felonies And also it may be construed as well where the prisoner is indicted arraigned vpon an Appeale as where hée is indicted and arraigned vpon the indictment though the same be not contained within the expresse words of the sayd statute Challenge for want of medietateÌ linguae 3 There is another challenge vpon cause which is to the Array and that is when an Alien is arraigned of Felonie and pleadeth to an Issue and the Enquest is returned all of English men this is a cause of challenge by force of the Statute of Anno 28. Edw. 3. St. 28. E. 3. 13 which did ordaine That in all manner of Enquests and proofes which be to be taken or made amongst aliens and Denizens be they Marchants or others as well before the Mayor of the Staple as before any other Iustices or Ministers although the king be party the one halfe of the Enquest or proofe shall be by Denizens and the other halfe of Aliens if so many Aliens be in the Towne or place where such Enquest or proofe is to be taken that be not parties nor with the parties in contracts pleas or other quarrels whereof such enquests or proofes ought to bée taken And if there be not so
thereunto not guilty the Iury may find that one of them committed the felony by the procuremeÌt of the other but that he which was the procurer was not present at the coÌmitting of the felony 3 And as a Iury may giue a speciall verdict to attenuate an offence The verdict more penall then the Indictment and to make it lesse penall then is contained in the Indictment as in the cases aforesaid so may they by a speciall verdict aggrauate the offence more then the Indictment did As a man was indicted and arraigned for the stealing of linnen Cloth to the value of two shillings whereunto the prisoner pleaded not guilty Fi. Cor. 115 and the Iury found that he did rob the owner of the linnen cloth to the value of x. s. and further that he tooke it from the person of a man whereupon hée was adiudged to be hanged 4 When a man is indicted of the death of another man before the Coroner Where a Iury shall find who killed the dead man vpon the sight of the body slaine and after is acquite the Iury which acquited him must find one that killed him 14. H. 7. 2. 13. E. 4. 3. 22. As p. 39 7. Eli. Dyer 238. or els the meanes whereby he came to his death and if they find that I.N. killed him this shall serue for an indictment against I.N. for it is certaine that there is such a person dead séeing the Coroner did sée him and so recorded it and therfore the maner of this persons death must not cease to be tried vntill it be found But it is otherwise where the prisoner is indicted before other Iustices because notwithstanding such an indictment it may be there was no such person dead for the body was not séene by the Iustices before whom that indictment passed as in the other case it was by the Coroner and therefore their record in that case touching the death of a man cannot be of so great force as the coroners is vnles it be where the death of the man is notorious and generally knowne then if he which vpon an appeale or indictment of the death of that man is arraigned 21. E. 3. 17 pleadeth not guilty is by the Iury found not guilty the Iury shal be charged to inquire who killed him as a man was indicted and arraigned for the killing of another man who thereunto pleaded not guilty and the Iury found him not guilty and because the man was knowne to be killed in the presence of many the Iustices charged the Iury to inquire and find who killed him 37. Ass p. 13 and theÌ they found that the same man which was killed was in a Tauerne and drunken and fell vpon his owne knife by mischance and so was the cause of his owne death ⧠Clergie What Clergy is 1 CLergie is an auncient liberty of the holy Church and it is when a priest or one within holy orders or any other in whoÌ there is no impossibility to be a priest is arraigned of Felony before a secular Iudge hee may pray to haue his Clergy which was as much before the statute of 18. Eli. St. 18. Eli. 6. as if he had prayed to be dismissed of the temporall Iudge and to be deliuered to the Ordinary to purge him of that offence and now sithence that statute it is as much as if he should pray after the burning in the hand to be enlarged and deliuered out of prison And it appeareth by the statute of Articuli Cleri made Anno 9. Ed. 2. St. 9. E. 2. 15 That a Clerke ought not to be iudged by a Temporall Iudge nor any thing may be done against him that concerneth his life or dismembring of him and though this priuiledge had his beginning from the Cannon Law and not from the common Law of this Realme yet it hath bin confirmed by diuers parliaments and the temporall Iudges haue so fauorably vsed it that they haue graunted it to all that can read although they be no priests nor within holy orders which is more then the Cannon Law requireth for the Cannon Law expecteth no more then that it shal be graunted to priests and such as be within holy orders Where no Clergy by the common Law 2 None of them in whom there is any impediment to be Priest can by the common Law haue the priuiledge of Clergy as he that is blind or maimed or one such as by no dispensation by the Lawes of the Church can be Priest can haue the priuiledge of Clergy Fi. Cor. 461 Neither can any woman haue the priuiledge of Clergy Committer of Sacriledge 3 He that hath committed Sacriledge Fi. Cor. 120 283. 257 26. As p. 1â 27. Ass p. 42 shall not haue the priuiledge of clergy by the common Law if the Ordinary do refuse him the secular Iudge do assent to his refusall and yet it is otherwise if the Ordinary will clayme him for a Clerke and receiue him But if one that hath committed Sacriledge be arraigned of another felony then of that Sacriledge for the which he doth pray his Clergy and doth read well and the Ordinary knowing that he hath committed Sacriledge or some other grieuous crime doth refuse him the said offendor shal be hanged 21. Ed. 4.21 though the Ordinary doth not shew to the Iudges the cause of his refusall S. Br. 24. Fi. Cor. 233. 26. Ass p. 19 4 If one that is a priest or within holy orders hauing not the habit or tonsure of a clerke Habite or tonsure of a clerk do demaund his clergy if the Ordinary do refuse him for it he shal be hanged 9. E. 4. 28. so shall he be if the court do refuse him for that cause though the Ordinary do not refuse him S. Br. 5. 5 He that had his clergy once Clergy allowed but once should haue had it againe by the coÌmon law and so oft times but by the stat of 4. H. 7. St. 4. H. 7. 13 it was enacted That euery person not being within orders which once hath béen admitted to the benefit of his clergy being eftsoones arraigned of any such offence shall not be admitted to the priuiledge of his clergy And euery person so conuicted for murther shal be marked with an M. vpon the brawne of the left thumbe and if it be for any other felony he shal be marked with a T. in the same place of the thumbe and those markes to be made by the gaoler openly in the court before the Iudge before the person be deliuered And after by the stat of 28. H. 8. 32. H. 8. St. 28. H. 8. 1. St. 32. H. 8. 3 it was enacted That such as be within holy orders shall be and stand vnder the same paines dangers for their offences and be vsed and ordered to all intents as other persons not being within holy orders shal be 6 He that killeth a
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 coÌmitted 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 coÌmitted 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
gaoler shal be punished for it 36 The Court vpon the suit of the prisoner may allow him the priuiledge of his Clergie in the absence of the Ordinarie or without the aduice of the Ordinarie or without demanding of the Ordinary vtruÌ legit vt Clericus an non 9. E. 4. 28 and so the court néed not expect the presence of the Ordinary if he faile of his attendance for the court doth vse the Ordinary but as a minister in this cause to confirme their iudgement in allowance of Clergie and to heare his opinion if the prisoner be worthy of Clergy or not To what vse the Ordinarie is imployed Because the maner and order is for the Ordinary to deliuer a booke to the Iust who open it and assigne the verse that the prisoner shall read and the Ordinary receiuing the booke of the Iustices doth come to the prisoner and command him to read that verse which béeing done the court doth demand of the Ordinary vtruÌ legit vt Clericus an non and the Ordinarie doth answer legit or non legit and then the court doth allow that which the Ordinarie saith if it be true or otherwise not And moreouer the Ordinarie was in former times vsed by the Iustices to another purpose viz. to know if the prisoner were within orders or not which the temporall court could not take knowledge of for if he were within orders he should haue had the priuiledge of the church whether he did read or not by shewing the letters of his orders or by the Ordinaries certificat vntill the stat of anno 28. H. 8. St. 28. H. 8. 1 was made by the which it was ordained That such as be within holy orders shal be and stand vnder the paines and damages for their offences and be vsed and ordered to all intents Clerks within Orders shal be vsed as others be as other persons not being within holy orders shall be And further it may be that the offendor hath bin a committer of sacriledge an heretike or an Apostata or some other grieuous offendor so that the court hearing the Ordinary willing to refuse him would also refuse him What is reading as a Clerke 37 There is a difference of reading for it may be that the prisoner may read two or thrée words of the verse that is assigned vnto him by the court but not the whole verse which is a kind of reading 9. Ed. 4. 28. but not such a reading as a Clerke ought to make for if hée will read as a Clerke hée must read the whole verse But although at the first hée beginneth with spelling and after doth read as a Clerke yet in fauour of life he shal be allowed for a Clerke and the forme of entry vpon request of Clergie 4. Eliz. Dyer 215. is Et tradito ei libro legit vt clericus 38 Though the Court may giue allowance of Clergie in the Ordinaries absence yet that shall not excuse the Ordinary of his attendance The Ordinaries attendaÌcâ in proper person or by his deputie vpon paine of a fine to be assessed vpon him by the Court which deputy ought to haue and bring with him sufficient letters of the Ordinarie vnder his seale testifying the authoritie which the Ordinary hath giuen him 25. E. 3. 40. And though his warrant be but to challenge Clerkes arraigned and not Clerks conuicted yet the warrant is good ynough and shal be allowed Contention who is Ordinarie And if two seuerall persons do claime to be Ordinaries the Court ought not to allow either of them but must write to the Metropolitan to make certificat who of right ought to be Ordinarie Fi. Cor. 432 39 He that is indicted by the name of a Clerke A Priest shall haue âo fetters or appeareth to the Iudge to be a Priest shall not vpon his arraignment stand at the bar in fetters And so was the law in antient time for euery prisoner as Britton Britton reporteth 40 Bigamie in times past was a counterplea to clergy viz. to alledge that he who demandeth the priuiledge of his clergy was maried to such a woman at such a place within such a dioces and that the said woman dyed and that he maried another woman in such a place in the same or another dioces and so hée is Bigamus Or if he hath béene but once maried to say that she which hée maried was a widow and before had bin the wife of such a man which allegation should haue bin tried by the bishop of the dioces where the mariage was alledged to be solemnized And it being certified by the bishop that he was Bigamus the prisoner should haue béene put from his clergie Which was by a Constitution made at the Counsell of Lions as it appeareth by the stat of Bigamie made anno 4. Ed. 1. St. 4. Ed. 1. 5. for before that Counsell of Lions euery man that had bin twice maried or had maried a widow should haue had the priuiledge of clergie But that law was sithence altered by the stat of anno 1. Ed. 6. St. 1. E. 6. 12 wherby it is enacted Bigamus shal haue his Clergie That if any person or persons by this stat or by any other stat or lawes of this realme S. Br. 24. ought to haue or to be admitted to the benefit of his or clergie that the same person or persons shal be from henceforth admitted and allowed to haue his or their clergy although they or any of them haue bin diuers and sundrie times maried to any single woman or single women or to any widow of widowes or to two wiues or mo Any law statute or vsage to the contrarie notwithstanding And though some haue affirmed that the foresaid stat of 1. Ed. 6. St. 1. Ed. 6. was abrogated by a braunch of a stat made 1. 2. P. M. 8. which did repeale all stat prouisions and articles made against the sea of Rome since the xx yere of K. H. 8. and the Pope by his decretals brought in the same exception of Bigamy which was obserued and obeyed as a common law vntill the said stat of 1. E. 6. But that foresaid stat of 1. 2. P. M. 8. was also after repealed by the stat of an 1. El. 1. for the which and some other causes it is agréed and holden for law 3. Eliz. Dyer fol. 201. that the before rehearsed stat of 1. Ed. 6. doth stand and remaine in force and Bigamus shall haue his Clergie 41 It is a good counterplea to him who demaundeth his Clergy to say Another time conuict that he had another time the benefit of his Clergie when he was arraigned of another felony and shew the certainty therof when and where he was arraigned and had his Clergie to demaund iudgement if hée shall haue his Clergie againe Which counterplea was ordayned by the statute of Anno
the words of the Statute be And if they bee lawfully conuict of such abetment by malice which doth proue that they shal haue their answer to that which was found by the Enquest And also it is a good answer for him that is charged to be an abettor to shew sufficient matter to proue Fi. Cor. 386 that the defendant ought not to recouer his damages against the appellant or that the defendant was not lawfully acquit but erroniously But if the abettors would take exception to the inquisition found for that the enquest did not find at what day Fi. Cor. 45 M. 22. E. 4. yeare and place the abetment was made that is no good exception for in that they haue found the abetment they haue performed the words of the statute which be That inquirie shall be made by whose abetment and that they haue found And touching the yeare day and place the defendant in the Appeale must adde to the inquisition and so supply that which wanteth Proces against the abettors 13 Because the said statute hath ordained St. 13. E. 1. 12 that after by an Enquest an abettor is found he shal be distrained by a iudiciall writ at the appellees suit to appeare before the Iustices Therfore it is to be gathered by words of the said statute that the proces against abettors is distresse infinit for this proces of distresse is alwayes pursued by him that is acquit who for his spéedie remedie may prosecute it although the apppellant be not in the Court as where the Appellant was nonsuit in the Appeale and the defendant was arraigned at the Kings suit and acquit and his damages taxed and the abettors found Fi. DamÌ 77. in this case the defendant shall haue proces against the abettors presently although the iudgement of damages shal be suspended vntill a Scire facias shall be awarded and returned against the appellant Nonsute in the proces against the abettors And the defendant who is acquit in an Appeale may be nonsuit in the proces which hee doth pursue against the abettors and begin againe if he will for that nonsuit is not peremptorie to him Fit Co. 386 A Writ against the abettors by the appellee 14 There is an originall writ to be purchased by the Appellée who is acquit by verdict against the abettors for their abetment Fitz. Act. sur stat 28. wherein he may count abettors of greater damages than were assessed by the Iustices in the Appeal for of those damages taxed in the Appeale there will lye no attaint because the inquirie touching them is but of office And the defendant in the Appeale cannot compell the Iustices to increase those damages and therefore it is reason that he should releeue himselfe by this action Procurors of indictments for suits in spirituall Courts 13 The same remedie which is giuen by the foresaid stat of West 2. to the def in an appeale of Felony if he be acquite is giuen by the stat made An. 1. R. 2. to him who is falsely indicted for pursuing in a spirituall Court a matter pertaining to the temporall iurisdiction after that he is acquite thereof St. 1. R. 2. 13 The words of which stat be these The Prelates Clergy of the realme do greatly complaine for that people of holy Church suing in the spirituall court for their tithes other things which ought of right and of auncient time were wont to appertaine to the same spirituall court that the Iudges of spirituall courts other persons dealing therein according to the Law be maliciously and vnduly for that cause indicted imprisoned and by the secular power horribly oppressed and also enforced by violence by oathes by grieuous obligations and by many other meanes vnduly compelled to desist and vtterly to leaue off from the things aforesaid contrary to the liberties of the holy Church Wherefore it is enacted That all such Obligations made or to be made by duresse or violence shal be of no value And touching those which do procure by malice such indictments themselues to be indictors after that the same indictées be thereof acquite such procurors and indictors shall haue and incurre the same paine which is contained in the statute of West 2. touching those which do procure false appeales to be made And the Iustices of Assise or other Iustices before whom such persons indicted shal be acquite shall haue authority to inquire of such indictors and procurors and to punish them duly euery person according to his desert ⧠A Writ of Conspiracie Where a writ of Conspiracy doth lie 1 A Writ of Conspiracy doth lie where two or thrée persons or more of malice and by coâ in doe conspire and deuise to indict another person falsely and after he which is so indicted is acquited in this case he shall haue a writ of Conspiracy against those who did so conspire to indict him But this writ doth lye against two persons at the least 28. Ass p. 12 11. H. 4. 2. which doe so conspire for if one person of malice and his own false imagination doth labour and cause one to be falsely indicted the party which was so indicted shall not haue a writ of Conspiracy but an action vpon âhe case against him who caused him to be falsely indicted 2 At the common law a writ of Conspiracy did lie as well vpon an acquitall in an appeale as it doth at this day on an acquitall vpon an indictment But there hath growne a question thereof sithence the stat of West 2. was made St. 13. E. 1. 12 Registrum for that in the writ of Conspiracy in the Register it is noted for a rule and also it is affirmed by some others That a writ of Conspiracy doth not lye vpon an appeale for that the said stat of West 2. gaue to the def dammages against the appellant and the abettors Fit Na. Bre. 114. and so in a sort prouided for him another remedy But to say generally that the def shall not haue a writ of Conspiracy vpoÌ an acquital in an appeale for that he may haue damages against the appellant and the abettors is no sufficient reason for the said stat doth not giue to the def inquiry against the abettors but vpon his owne request and therefore if he will omit to desire it he shal haue the remedy ordained by the common law which law is not changed by the foresaid stat of West 2. that is in the affirmatiue doth not restraine the benefit giuen by the common law And it may be that the damages assessed by the enquest of office will not be so beneficiall vnto him as the damages which wil be giuen by a Iury that is taken at the parties suit whereunto he shall haue his challenges and an attaint if they giue a false verdict Also in a Writ of Conspiracy proces is to be awarded by Capias and Exigent which proces is not to
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 gouernmeÌt 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
Leges Aluredi cap. 7. That if any man did strike or draw a weapon of iron to strike in the Kings pallace the King might it he pleased put him to death 29 Because they which vpon the Kings commaundement do come to his councell or vpon his summons doe resort to his Parliament doe make their repaire thitherto further the wealth and peace of the Realme it hath béen therfore thought reason that during the time of the said councel Parliament they should not be depriued of that peace which they endeaour to procure to others and themselues Assault vpon one which coÌmeth to the Parliament Wherefore by a Statute made Anno 11. H. 6. Stat. 11. H. 6. 11. it was ordeined That if any assault or fray be made vpon any Lord Spirituall or Temporall Knight of the Shire Citizen or Burgesse which commeth to the Parliament or to the Kings Councell by his commaundement and there being and attending then Proclamation shall be made in the most open place of the Towne where the fray was made by thrée seuerall dayes that the partie which made such affraye or assault shall yéeld himselfe in the Kings Bench within a quarter of a yeare next after the Proclamation made if it be in the Terme tyme or otherwise at the first day of the Terme following the said quarter And if he doe not he shall be attainted of the deede and pay to the party grieued his double dammages to be taxed by the discretion of the Iustices of the same bench or by the inquest if it be needfull and shall make fine and ransom at the Kings pleasure And if he come and be found guiltie by inquest by examination or otherwise of such affray or assault then he shall pay to the partie grieued his double dammages found by the inquest or to be taxed by the discretion of the said Iustices and make fine and ransom at the Kings pleasure Assaulting the seruant of a Parliament man And by the Statute made Anno 5. H. 4. it was enacted St. 5. H. 4. 6. That he shall haue the like punishment which maketh assault or fray in the Parliament tyme vpon any meniall seruant of any Knight of the Parliament Citizen Burgesse c. which doth come to the Parliament with his master The libertie of the Clergie as a conuocation And by the Statute of Anno 8. H. 6. it was prouided St. 8. H. 6. 1. That al the Clergie which be called to the conuocation by the Kings writ and all their seruants and familiars shall fully vse and enioy such libertie or defence in comming tarying and returning as the great men and Commons of the Realme haue or are wont or ought to enioy which are called to the Parliament 30 Séeing the wealth and peace of the Realme doth chiefely consist in the due execution of Iustice which cannot be ministred without méete persons and places ordeined therefore for that cause the Law hath specially prouided that those persons and places which be designed to the same Administration of Iustice shall be so guarded and protected from force and violence offered vnto them or in them that shee hath inflicted déeper and more greiuous punishments to those who shall breake or disturbe the peace in the presence of those Magistrates or in those places than to them who shall breake the peace in the Kings own pallace where he is in person abiding or in the Parliament time ordeined for the making of Laws Assaulting a Iudge or Iuror And therefore it hath bene adiudged 22. Ed. 3. 13. That if one draw his sword to strike a Iustice assigned sitting in place of iudgement and be thereof found guiltie he shall forfeite his lands and chattels and haue his right hand cut off And likewise if one in the presence of the Iustices doe strike a Iuror he shall forfeite his lands and goods haue his right hand striken off and be committed to perpetuall prison And the same Law is if one of the Kings Iustices assigned doth arrest any person which hath made a fray before him and a straunger will rescue that prisoner whereby he doth escape in this case as well the prisoner as he that made the rescous shall be disherited and be perpetually imprisoned for that the attachment of such a Iustice is the Kings owne attachment in the construction of the Law Striking in time or place of Iustice And if one doe strike an other in Westminster Hall Fitz Cor. 280. 2. 3. P. M. Dy. 188. during the time that the Kings Courts do sit hee shall forfeite to the King his lands and goods haue his right hand cut off and bee committed to perpetuall prison 4. H. 7. 2. 31 In an action of Trespas of assault and batterie the defendant pleaded Arresting by watchmen that there were diuers felonies committed in those parts where he dwelt and he being watching in his house came into the high Stréete where the plaintife was at eleuen of the clocke in the night and the defendant came vnto him and laid his hands in peaceable maner vpon him to sée his face and when he perceiued that he was a true man he left him departed which was the same assault and batterie And this was allowed to be a good iustification for by the statute of Winchester watchmen may arrest Nightwalkers and also may appose them from whence they come and what they be but they must be such watchmen as be appointed by the Towne And so euery man may arrest Nightwalkers for it is for the good of the Common wealth The same law is in an action of Trespas brought of the assault and batterie of his seruant 4. H. 7. 18. 5. H. 7. 5. 2. Ed. 4. 8. whereby he did loose his seruice 3. daies and the defendant pleaded that A. was robbed at midnight of goods to the value of xl sÌ whereupon the said A. came to the Constable and prayed him to search for suspicious persons and to apprehend and arrest them and accordingly he did search and found the same seruant walking suspiciously in the stréete in the night and therefore he would haue arrested him but the said seruant fled and would not yéeld to the arrest and the defendant by the Constables commaundement pursued and tooke him This was adiudged a good plea in barre for when a felonie is committed the Constable or any others may arrest suspitious persons and if any that is arrested will not yéeld but assault him or them that do arrest him they may iustifie the beating of him for that he doth resist the peace and iustice of the Realme when he doth forciblie striue to flie and not to be iustified by it 30. Ed. 3. 4. 29. Ass p. 63. 28. Ed. 3. 92. 6. H. 4. 7. 32 If a man be assaulted and beaten Trespas for batterie before outlawrie and then be outlawed in an action of Trespas and after doth purchase his
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 impriâonment 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 ImprisonmeÌt 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
fine ImprisonmeÌt for offences done to the iustice of the Realme 57 As in the cases aforesaid imprisonment of offendors is both tollerable requisit when it is inflicted for misdemeanors done to the peace of the Realme so in many other cases it is as necessary when it is imposed for offences done to the law justice of the Realme being the foundation principall piller of the same peace and without the due execution whereof there can not be a general and perfect peace And amongst many other transgressors who doe offend contrarie to the justice of the Realme and yet in a sort doe preserue the peace the law doth principally note foure kinde of persons worthy for their offences to be imprisoned Whereof the first be they who doe commit some acts that be wrongfull iniurious and prohibited by the common lawes or Statutes of the Realme The second be they who doe attempt and prosecute vniust and wrongfull actions or suits to molest trouble or charge others The third be they who being impleaded vpon iust and good causes doe plead false or dilatorie pleas in retardation of justice and hinderaunce of the due and ordinarie course of the law The fourth be they who vpon stubbornesse contumacie or wilfulnesse refuse to doe that whâââ they know the law doth require at their hands and may enforce them vnto of euery of which amongst many I will insert some fewe cases ImprisonmeÌt for coÌmitting vnlawful acts As to the first by the Statute of Anno 5. Sta. 5. El. 14. Eliz. he shall be imprisoned and set vpon the pillorie who doth falslie forge or willingly assent or cause to be forged or made any false déede charter or writing sealed Forging of deéds Court Roll or the will of any person in writing S. Forgery â to the intent that the estate of fréehold or inheritance of any person in any lands should be recouered or charged c. for forging of déeds is an iniurious and wrongfull act and alwaies hath bin hated detested and persecuted in this Realme Sta. 13. E. 1. 11. By the Statute of Westm 2. If the master do assigne auditors to any Bailifes Seruants Chamberlaines or other receiuors which are bound to yéeld accompt Accomptants found in arrerrages and it chaunce them to be found in arrerages all things being to them allowed they shall be arrested and by the testimonie of those auditors committed to the next Gaole which the King hath in those parts and shall be receiued by the Sherife or his Gaoler and prisoned fettered in irons liuing of their owne goods vntill they haue fully satisfied their master of all the arrerages for detayning of the arrerages of an accompt is a plaine and manifest wrong to the master 27. H. 6. 8. And this imprisonment must be presently after the accompt taken Disseison contrarie to his owne lease and not any distance of tyme after And he that doth a disseisin or maketh an entrie contrarie to his owne déede 14. Ass pla 12. Or is conuicted for the imbeziling of an Exigent or for some other notorious deceits committeth open and manifest iniurie and therefore shall be imprisoned 8. Ass â 20. 28. Ass pla 28. If one man do make a lease of a Tenement by writing to an other for terme of life of the lessée whereupon the lessée doth enter and enioyeth it and after the lessor doth enter and disseise the lessée for life and then the lessée do bring an Assise against the lessor and recouer against him the Tenement leased in this case the same lessor shall be imprisoned for that he made an entrie contrarie to his owne deede and so willingly committed an open and manifest wrong 18. Ass p. 3. The same law is if a man do make a disseisin of land of his whole title wherein he hath before made a release or confirmation to the tenant of the same land in this case he shall be imprysoned And if a Gardian do take a feoffement of his wardes land being within age Fitz. Assise 395. he shall be imprisoned therefore for this and all the former be iniurious acts and knowen to the offendors to be prohibited by the law As touching the second point they be also worthy to be imprisoned who do attempt or prosecute vnlawfull suits to the trouble vexation of others As if one do bring an Appeal against an other 50. Ed. 3. 1. Imp. for prosecuting vnlawfull suits and that appeal do abate by the plaintifes nonsuit or by any other default of his he shall be imprisoned A woman brought an Appeal of the death of her husband against one 9. H. 4. 2. who was attainted and hanged at her suit and after shee brought an appeal against an other man of her said husbands death who pleaded the attainder of the first man in barre whereupon the appeal was abated and the woman committed to pryson for her wrongfull vexation and suit A woman brought an appeal against a man of the death of her husband 8. H. 4. 18. and her said husband was brought into the court and shée was examined if that were her husband who said yea but shée supposed that he had béen dead and therefore shée was imprisoned for her false appeal If one do bring an appeal against an other for a Murder Burglarie Robberie or other felony committed in W. in the County of N. and there is no such W. in that County the appeal shall abate and the plaintife shall be imprisoned for it is manifest that this suit was commenced vpon malice and to put the defendant to vexation and trouble and not vpon any iust cause Thirdly they are worthy to be imprysoned who do plead false Imp. for false or dilatory pleas or dilatorie pleas in hinderance of suits and retardation of justice As if a man in his plea do denie his owne deed 33. H. 6. 54. 45. Ed. 3. 11 6. Ass p. 4. 24. E. 3. 74. Sta. 34. Ed. 1 or do plead a false déed made to himselfe which is found against him by verdict or do plead a déed that is rased enterlined or otherwise suspicious that is adiudged against him he shall be imprisoned By the statute intituled De coniunctim feoffatis if the tenant in Assise do plead iointenancie of the land in demaund with his wife ImprisonmeÌt for false pleading of iointenancie or a stranger and sheweth a déed to testifie the same to the intent to abate the plaintifes writ and if it be found by the Assise that the exception was maliciously alleaged to delay the plaintifes right the said tenant shall be one yeare imprysoned though the assise passe for him against the plaintife And if that tenant in the assise be an Enfant who doth plead iointenancie yet if that plea be found against him 37. Ass pl. 1. he shall be imprysoned for that the said statute is generall 3. H. 6. 51. St. 13.
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 aduaÌtages 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 imprisonmeÌt 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 franâââses 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
the same peace 32 As in the causes aforesaid force may be lawfully vsed to the persons of men so in some other cases forces may be vsed forcible entries may be lawfully made into the lands and tenements of others Where the house of a man may be broken by force and where not As for Treason or Felony or suspition of Felony one may by force breake open a house if the dores be shut to apprehend the Felon 13. E. 4. 9. For as a Felon is an enemy to the Common-wealth so is it for the benefit of the Commonwealth to apprehend him And the King as head of the CoÌmonwealth hath interest in felony to punish it and so a house doth not defend an entry to pursue and arrest one that hath committed felony or is suspected therof As if one hath wounded a man 7. E. 3. 16. whereby he is in perill of death and the offendor doth flie into a house the Constable or those that do pursue him may breake open the house to apprehend him if the dores be shut And in like sort if a fray be made or a quarrell be moued in a house whereof the dores be shut whereby the peace is broken or like to be broken the Shirife a Iustice of peace or a Constable may by force breake open the dore of the house to appease that quarrell or to take surety of the offendors to kéepe the peace And if a man be outlawed of Treason or Felony or in a personall action whereby a Capias vtlagatum is directed to the Shirife to apprehend and take him the Shirife may breake open the dores of the house if they be shut apprehend the same Outlaw and commit him to prison And if it be found by an inquisition before a Iustice of peace that one hath entred into another mans house by force or doth detaine it by force after peaceable entry made he may breake open the house by force to reseise the same land and to put the party so put out in possession againe and so may the Shirife doe hauing the Iustices warrant If a man be indited of Trespas and a Capias pro fine is awarded to the Shirife to take him 27. Ass p. 35 the Shirife may breake open the house to take him if the dores be shut And in all cases where the king is party the Shirife may breake the house of the party offeÌding Co. li. 5. 91. 13. Ed. 4. 9. or the house where he is to apprehend him or otherwise to execute the Kings proces if the dores be not open or that he cannot otherwise enter for where the King hath interest the writ or action is in the nature of a writ of Non omittas propter aliquam libertatem But this is to be obserued that alwaies before the Shirife or other Officer doth breake open the house or dores of any man Fitz. Execution 252. he must signifie the cause of his comming and desire that the dore may be opened vnto him for if there be no default in the owner the law doth condemne the breaking of a house which was prouided for the dwelling and safetie of men And therefore in any of the cases aforesaid if the Shirife doe breake open the house where some of the dores of the same be open whereby he may enter or that he may open the dore by the key or without breaking he is a Trespassor and is chargeable therefore to the owner of the house in an action of Trespas Sta. 3. E. 1. 17 13. Ed. 1. 38. If one man doe distraine another mans cattell and after doe put them into a Castle Fortresse or other strong hold house or place and then the owner of the cattell doth sue a Repleuin directed to the Shirife to make deliuery to him of the same cattell then if the same Castle Fortresse House or Hold be not opened to the Shirife vpon his solemne request when he commeth to make deliuerance of the cattell according to the purport of his writ he may take the force and power of his County and breake downe the same castle fortresse or house c. and make deliuerance of the same cattell for it would tend to the dishonor of the King his Crowne that the Shirife hauing the kings writ should be resisted with force by any of his owne subiects to execute the same and to make deliuerance of the cattell When any house is recouered by one man against another in any reall action Co. lib. 5. 91 or by an Erectione firmae the Shirife hauing the K. writ of Habere facias seisinam or possessioneÌ may breake open the same house if the dores be shut to deliuer seisin or possession to the demaundant or plaintife for after iudgement the house in right by the censure of the law is none of the tenants or defendants But it is not lawfull for the Shirife at the suit of any common person to breake the house of the defendant in the same suit to execute proces though he doe make request and be denied it for thereupon might ensue great inconuenience 18. E. 4. 4. that vpon colour of any fained suit a man should haue his house being his castle of defence broken by day or by night by any Vndershirife or Baylife being many times of small abilitie And therfore if in that case the Shirife breake any mans house to make execution of any proces at the suit of a common person he is a trespassor to the owner of the same house who may haue an action of Trespas against him therefore as against any other person and shall recouer his dammages But notwithstanding the execution which the said Shirife shall then and there make is good And yet the house of a man is a castle and place of priuiledge but for himselfe his wife Co. li. 5. 93 seruants and ordinarie resiants and for his owne goods for it will not protect any other man which will flie into his house or the goods of any other person which shal be brought into his house to preuent lawfull execution and to escape the ordinary proces of the law And therefore in any of those cases if the Shirife hauing proces to doe execution vpon the body or goods of a man do make request to haue the dore opened or to haue the body of the party flying thither or the goods of another brought thither to be deliuered vnto him and it be denied him or that it be not done the Shirife may breake the house and execute the proces 33 As force is to be vsed lawfully where it is for the benefit of the king or to auaile the Commonwealth so euery man being of himselfe a little world his family a small Commonwealth he the head thereof may in diuers cases defend the same Commonwealth by force Cok. lib. 5. 91. 26. Ass p. 23 32. Fitz. Cor. 303. 305. 22. Assise p. 55. St. 24. H. 8. 5
21. H. 7. 39. As In what cases any pârson may deâend 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 âhat 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 atteÌpt 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 iudgemeÌt 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 disturbaÌce 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
thing and things in all points as other Iustices of Assise in their circuits or Iustices of peace in the Counties by vertue of this Act be limited and appointed to do and execute for the punishment and correction of like offendors as beforesaid is limited Sauing to the partie grieued by such deceit such remedie by way of action The remedie of the partie grieued or otherwise of for the same money goods cattels iewels or other things so obtained as he might haue had if this Act had neuer bin made Any thing in this Act c. notwithstanding 26 Forgerie of writings hath béene alwayes so hatefull in this realme that our law-makers haue pursued the practisers therof with sharpe and bitter punishment though in some cases the same was not put in vse to molest or euict any man of his land lease annuitie debt account action suit or other demaund nor to get into his hands any others goods cattels or iewels but only to escape the ordinance and censure of the law As by a statute made anno 5. Eliz. it is established St. 5. El. 7. That no person retained in husbandry or in certain inferior arts or faculties in the said statute mentioned shal depart out of one citie towne or parish into another nor out of the Lathe Rape Wapentake or Hundred nor out of the County or Shire where he last serued to serue in another Citie Towne Forging of a testimoniall c. vnlesse he haue a Testimoniall of the said Citie or town corporat from whence he departed or of the Constable or other officer c. And if any such person shall be taken with any counterfeit or forged testimoniall then he shal be whipped as a vagabond ⧠Periurie Subornation of witnesses Truth tried by the othes of men 1 THe Law of the Realme desirous to trie out truth in all causes called in question before her to the end she might procéed in iudgement and execute iustice accordingly hath in all ages prooued it to bee the best meanes to search out this truth by the othes of honest lawful and indifferent persons intending that the man who doth professe God to bee his Creator Redéemer and Sanctifier and hopeth to be saued by his blood when hee doth come in the presence of that God and his people and doth aduisely sweare that he will declare the trueth according to his knowledge in that matter in question as God shall help him which is to say as he will expect the blessing of God in this life and eternall saluation in the life to come is void of all partialitie and priuat affection in all respects to be credited and will tell the whole truth and nothing but the truth And therefore an othe is aptly termed Sacramentum a holy band or sacred tie or godly vow The credit of an othe some do call it firmameÌtum veritatis the foundation ground of truth and some other vinculum pacis a meane of the knot or lincke of peace And if it be taken and found by a whole Iurie consisting vpon twelue persons or aboue it is called veredictum viz. a presentment of truth And others doe hold it a ceremonie instituted by God wherein himselfe is a partie and therefore he will see it verified or sharply punished Wée know that the proofe of most of our acts déeds and writings doe depend vpon the othes of others and whatsoeuer men do for their owne particular account most certaine is altogether in most cases vncertaine vnlesse it may be iustified by the othes of others As if one doe commit murder rape burglarie robberie or other offence whatsoeuer and it be denied and cannot be prooued by the othe of some other the offendor shall escape vnpunished for it And likewise if a man do buy land of another if the feoffor doe make him a déed of feoffement thereof do seale and deliuer it and giue him possession and after will denie it vnlesse it can be prooued by the othe of some other the feoffée shall loose his land and money And so it is of leases annuities releases acquitances obligations bargaines contracts couenants promises offences entries disseisins and other matters in fait if they be denied trauersed and called in question the proof and validitie of them doth depend wholly vpon the othes and testimonie of others And there is no case so plaine which commeth in question betweene partie and partie but one of the parties to the sute may pleade such a plea as shall come to be tried by the othes of others 2 Therefore as the Lawe doth reuerently respect the othes of men What sorts of persons are to be deposed taketh her intelligence of matters in fait from them doth cleaue leane vnto them and giueth such credite and approbation vnto them that shée doth found and build her iudgements in most cases of greatest importance vpon them So shée retaineth a vigilant and carefull eye that those othes be taken by men of sinceritie of life and maturitie of iudgement persons not stained with Periurie or other gréeuous or foule offences men indifferently affected and such as will in swearing respect the trueth of their knowledge and not the face of the person for if shée espie any of those defects in him she doth either wholly reiect his othe or else shée giueth little or no credite vnto it and further inflicteth condigne punishment vpon him according to his desert Mag. Char. 9. H. 3. 29. 3 And because the King himselfe at his Coronation is sworne that iustice shall be solde deferred or denied to no man nor that any man shall be condemned but by lawfull triall and euery of his Iudges be sworne that hée shall doe equall Lawe and execution of iustice to all the Kings Subiects Sta. 18. Ed. 3 rich and poore without hauing regard to any person All the parties to the execution of iustice sworne Therefore the law hath deuised that those Iudges before whome any cause is called in question and is brought to an issue shall be informed of the trueth of that issue by the othes and verdict of twelue Iurors who are impannelled returned and sworne to trie that issue to the end the same Iudges may ground their iudgement thereupon and so doe equall iustice to the parties according to their oathes and also that the saide Iurors shall be ascertained of the veritie of the fact by the Othes of witnesses or other euidences that they may giue their verdict thereupon according to their Othes And séeing those Iurors being the greatest number of persons that be vsually sworne for the furtherance and execution of iustice be returned by the Shiriffe of the Countie where the cause dependeth in question his vndershirife or the Bailife of some Libertie or for some default in them by the Coroners Therefore the Lawe hath further ordained that the saide Shiriffe Vndershiriffe or c. shall be indifferent persons of themselues and also deale vprightly
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
of those parties a straunger and they come to issue the other partie who made the same combination is returned vpon the Enquest to trie the matter in issue betwéene his companion and that stranger Periurie suspected by combination the law doth suspect him of fauor and periurie so will reiect him if he be challenged therefore for she doth feare that his old friendship former league with the party to that issue hath suncke déeply into his brest and will further preuaile with him then the truth of a straungers case to be presently examined and tried will doe be it neuer so apparant Fitz. Chal. 106. 10 If two men be at controuersie and in sute of law Periury suspected if one of the parties a Iuror be at sute in law and depending that sute there is an other controuersie and sute in law commenced betwéene one of those parties a stranger 8. H. 5. 11. and they discend to an issue and the other party to the first sute is returned one of that Enquest In this case the law doth suspect him of malice and will remoue him out of that enquest if he be challenged therefore by his former aduersarie for she doth feare that the grudge which he hath conceiued in his hart against his aduersarie vpon the first sute will moue him to reuenge which is one of the grounds and causes of periurie 8. H. 4. 3. 27. Ass p. 13 11 If two persons or more doe conspire and agrée betwéen themselues to indite an other of felonie and accordingly they doe procure him to be indited of the same felony of which felony vpon his arraignement he is acquit if the partie indited doe bring a writ of conspiracie against the said conspirators and they doe come to an issue to be tried by a Iury Periury suspected for that the Iuror passed against him before if any of those who were the Inditors of the same person be returned vpon the enquest to trie the conspiracie the law will suspect him of partialitie and not admit him to be sworn to try the conspiracie for feare of periurie for she conceiueth that he will doe his indeuor to iustifie and maintaine that which before he had found vpon the inditement though it be false for the sauing of his owne credit And the like law is if a man be one of those who doe indite an other of felonie and after when the partie indited hath pleaded not guilty and doth submit himselfe to be tried by the Country 7. E. 4. 4. 12. Ass p. 36 the same Inditor is returned vpon the enquest to trie innocencie or guilt of the man vpon the challenge of him by the partie indited he shall be remoued for the law will suspect him of periury and that he will rather respect his owne credit and iustifie his former oth and the inditement to be true then regard his euidence the life of the man arraigned and the truth of the case in triall And it is specially prouided by the Statute of AnÌ 25. Ed. 3. St. 25. E. 3. 3 That no Inditor shall be put in Enquests vpon the deliueraunce of the Inditées if hée be challenged for the same cause by him which is indited Periurie suspected in respect of Subiection or gouernment 12 And the Lawe doth suspect one that is returned of a Iurie of partialitie and fauour who is within the distresse of either of the parties to that sute Fitz. Challenge 19. 27. 46. 61. 4. H. 6. 25. 44. Ed. 3. 5. or that is within the Iurisdiction of the Court Hundred or Court Leete of the plaintife or defendant or of any other in whose right to whose vse or by whose commaundement either of them do claime for if he hath any land in his owne right or his wiues or that any other is seised to the vse of him or his wife of any land whereof he taketh the profit 38. Ed. 3. 25 which is holden mediately or immediately of either of the parties to that sute the Lawe dooth suspect him of Periurie and being challenged therefore hee shall be drawen and not sworne of that Enquest 22. Ed. 4. 1. And so it is if any of the persons returned to be of a Iurie be seruant to either of the parties to that Issue the Lawe doth suspect him of Periurie for that hée is at the commaundement and vnder the correction of his Master and therefore being challenged hée shall be drawen out of that Iurie And the like Lawe is if either of the parties to the sute 2. H. 4. 13. be seruant to any of the Iury and that Iuror be challenged therefore hée shall not be sworne for feare of Periurie which hée may commit for his seruants benefit Periurie suspected in respect of kinred aliance or profite 13 The Lawe doth also perceiue 8. H. 6. 15. 7. H. 6. 40. that Nature and priuate profite be oft times speciall motions to Partialitie Fauour and Periurie As if any person be returned of a Iury who is néere of kinred or affinitie to either of the parties to that sute or to his wife viz. within the degrées of Marriage and specially if the same Iuror may by any presumption or likeliehoode after take benefit of the thing in question Or if either of the parties to that Issue may be heire to the Iuror or the Iuror or his heire be heire to the said partie then the Lawe vpon Challenge doth reiect that Iuror for feare of Periurie But if the kinred or aliance betwéene the partie to that sute 40. Ass p. 20. and the Iuror be farre off and many degrées asunder Or that one be a kinsman on the fathers side and the other of the mothers side or one be a kinsman to the other of the halfe blood or a Bastard or otherwise Fitz. Challenge 102. in such sort that the land of the one can not by the course of inheritance and the rules of the Lawe discend to the other Or if the alliance be such that the sonne of the one hath married the daughter of the other and not betwéene themselues 3. Ed. 4. 12. then the Lawe doth not feare Periurie in the same Iuror but hee may be sworne to trie that Issue And if there be a sute commenced betwéene a Corporation and a priuate person and that doth come to be tried by a Iurie if any of the same Iurie be neare of kinred or alliance to any person of that Corporation 34. Aff. p. 6. 7. Ed. 4. 4. or to any principall Officer of that Corporation the Lawe doth suspect him of Periurie therefore and if hée be challenged for that cause hée shall be drawen out of that Enquest 2. H. 4. 15. 10. H. 6. 24. The Lawe doth account it a kinde of affinitie One godfather to the others child if one of the parties to the sute haue baptized and béene godfather to a childe of one
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 sÌ aboue all charges so that he be challenged for that cause by the party But by the Statute of AnÌ 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 AnÌ 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 sÌ 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 tenemeÌts 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
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 euideÌce 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
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
of the stat of 18. El. 14 Maintenance Champertie buying of titles Embracery haue bin accounted so offensiue professed enemies to the iustice peace of the realm that though by the stat of an 18. El. it is ordained Stat. 18. El. 5 That euery informer vpon any other penall stat shal exhibit his suit in proper person pursue the same onely by himselfe or by his Atturney in court and that none shal be admitted to pursue against any person vpon any penall stat but by way of information or originall writ and not otherwise nor shall haue any deputy at all And that vpon euerie such information which shal be exhibited a speciall note shall be made of the very day moneth yere of the exhibiting therof into any office or to any officer which lawfully may receiue the same without any maner of antedate to be made thereof And that vpon euery such proces shal be indorced aswel the parties name that pursueth the same proces as also the stat vpon which the information in that behalfe made is grounded and that no Informer or plaintife shall compound or agrée with any person that shall offend or shal be surmised to offend against any penal statute for such offence but after answer made in court vnto the information or suit in that behalfe exhibited or prosecuted nor after answer but by the order or consent of the court in which the same information or suit shal be depending Yet in the said stat of 18. El. there is a prouiso That it shal be lawfull for any person or persons grieued by means of any maintenaÌce chaÌpertie buying of titles or other embracery to pursue vpoÌ any stat prouided against maintenance champerty buying of titles or embracery as he or they might haue done before the making of the said act Which prouiso was made to the end that all persons grieued by reasons of any maintenance champertie buying of titles or embracery should be left at libertie to pursue chasten the offendors therin by all such means as former laws haue authorised theÌ not be restrained by any of the ordinances or articles before rehearsed for that the said offeÌces were by the makers of the said stat adiudged to be greater impedimeÌts obstacles to the execution of iustice than other penal stat were 15 As the policie of the realme hath deuised the foresaid popular actions and suits to enable euery person that will Assurances to haue mainte void in diuers cases to pursue prosecute maintainors champertors buyers of pretenced rights c. to the intent the sooner to root out extirpat those offendors who indeuor to wrest the execution of lawes out of their due course to subuert iustice thereby to hinder the peace of the realme so hath it in some cases gone further ordained that some assurances made for maintenance shal be presently void as it appeareth by the stat of an 8. St. 8. H. 6. 9 H. 6. wherby it was enacted Lands gotten by force assured to haue maintenance That if any person after his entry into lands or tenements holden with force do make a feoffement or other discontinuance to any Lord or other person to haue maintenance or to toll defraud the possessor of his recouerie in any wise If alter in an Assise or other action thereof to be takeÌ or pursued before the Iust of Assise or other the kings Iustices whatsoeuer they be by due inquiry therof to be taken the same feoffements and discontinuances may be duly proued to be made for maintenance as is aforesaid that then such feoffements or other discontinuances so as before made shall be void St. 4. H. 4. 8. holdeÌ for none And by the stat made an 4. H. 4. it was established That if any man great or small of what estate or condition they be Lands forcibly gotten by maintenance make any forcible entry in his own right or to his own vse or in anothers right to his vse by the way of maintenaÌce therof is attained at the suit of the party grieued he shal be one yere imprisoned pay to the partie grieued his double dammages And also he shall answer to the partie grieued damages for his goods cattels if vpon the said forcible disseisin he tooke away any 16 As by the before mentioned stat maintenance champerty What maintenance is punishable and what iustifiable embracerie buying of titles be in generall termes deciphered together with their seuerall penalties so haue the learned Iudges Sages of the law expounded the particular branches of euery of those stat as they grew in question were prosecuted in suit before them also resolued what maintenance is punishable and what iustifiable who may pursue an action writ bill or information c. of maintenance champerty c. against whom the same is to be brought for what offeÌce or cause the same is maintenable what pleas are to be pleaded to the writ or in bar of the said actions writs informations c. what iudgemeÌt shall ensue thereupon As euerie champertie is an vnlawful maintenaÌce prohibited by the foresaid stat of West 1. West 2. 9. H. 6. 64. St. 28. E. 1. 11. and punishable according to the before rehearsed stat of An. 28. E. 1. and euerie chaÌpertie is a maintenance the partie grieued may haue aswel a writ of Maintenance as of Champertie for by that meanes the champertor hauing bargained to haue part of the land or thing in question doth ofttimes moue further the suit suborneth witnesses corrupteth the Iurie and so subuerteth iustice but there must be a suit depending before it can be adiudged maintenance in any sort for if one man wil giue money to another to beginne and prosecute a suit against a third person 3. H. 6. 55. 8. H. 5. 8. 10. Ed. 4. 19. 30. Ed. 3. 3. this is no maintenance for that this mony was giuen when there was no suit depending and if there be a writ brought and neuer returned it is no maintenance No maintenance in a Iuror for giuing his verdict 17 If there be a suit depending betwéene two and they do ioyne an issue 18. E. 4. 2. 28. H. 6. 6. which is tried by xij men found for the plaintife in this case the defendant cannot haue an action of maintenance against the said Iurors or any of them for this verdit giueÌ for that they gaue their verdit according to their euidence and their knowledge of the truth of the matter and besides they did not thrust theÌselues into that cause but were compelled to appeare by an ordinarie course of law being impanelled returned by the Sherife or some other lawfull officer Maintenance by a Iuror suing for iudgement but if after the verdit giuen any of the Iurie wil solicit or labor to the Iudge or Iudges of the court where the said suit
is depending to giue iudgement for the plaintife then the def may haue an action of Maintenance against him for that the same iudgemeÌt 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 coÌpanions 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 maintenaÌce in him though he do spend no mony in that cause nor doth labor the Iury therin for it may be that wheÌ the Iury do by his words know his meaning they dare not in respect of his authoritie or greatnesse in that couÌtie giue their verdit otherwise thaÌ 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
officers requisit to be had for the spéed of the said suits which shall do their dueties without any rewards for their counsels helpe and businesse in the same And the same law and order shal be obserued in all such suits to be made before the K. Iustices of his Common pleas Barons of his Exchequer and all other Iust in Courts of Record where any such suits shal be 30 As Maintenance in the cases aforesaid is lawfull and iustifiable Maintenance in respect of kindred or alliance in respect of the parties priuat profit or interest in the thing in question or when it is done without malice or hope of profit vpon a charitable disposition so is it in diuers cases allowable in regard of the linke or bond of nature whereby one person is by loue or dutie tied to another 34. H. 6. 26. 6. Ed. 3. 33. as the father may maintaine his son and heire and giue money of his owne in defence of him or his title or suit for he is bound to find him but so he may not doe for another kinsman And the sonne may maintaine the father and mother and one brother another and one néere kinsman another 21. H. 6. 16. 14. H. 7. 2. 20. H. 6. 1. 19. Ed. 4. 3. 21. H. 6. 16. and one ally another in some cases and in some sort as if a man be impleaded another that is his brother or kinsmaÌ or of his alliance may go to the bar with him stand by him comfort him or he may ride to his counsell with him or he may request a man that is learned in the law to bée of counsell with him in that cause 9. Ed. 4. 32. but he must not retaine that learned man nor giue him any mony of his own to be of counsel neither must he giue or promise money to the Iurors or any of them to giue their verdict for him for then it is vnlawfull maintenance in him so it is in a stranger who hath nothing to do in that cause if he doe goe to the barre with him that is impleaded or do stand by him of purpose for to countenance the cause in question or doe request a learned man in the law to bée of counsell with him or doe giue money to any of the Iurors for their verdict this is vnlawfull Maintenance in him And in the cases aforesayd and all other cases of Maintenance Vnlawfull maintenance is continuall this vnlawfull Maintenance is a continuall Maintenance during that suit vnlesse the partie grieued doe in the meane time release the same But if the same Maintenance bee in respect of alliance and that hee who is supposed to bee the maintainor hath maried the daughter sister néece or other kinswoman of one of the parties to the first suit wherein the maintenance was supposed be he must pleade 6. Ed. 4. that his wife was liuing at the time of the maintenance supposed to be for if she were then dead the alliance betwéene them is dissolued and then he had no cause to maintaine that suit but shal be punished as a stranger And yet in that case 14. H. 7. 2. if the same woman hath any issue of her bodie begotten who may inherit the land of him whose suit that husband of the deceased woman and the father of that issue did maintaine then is the maintenance lawfull in any action brought against the same partie in respect of the kindred and also of the benefit that may come to his owne issue And in a writ of maintenance it is a good plea for the defendant to plead Maintenance in respect of gossiprie that hee was gossip to him whose cause he was supposed to maintaine 6. Ed. 4. 5. for that gossiprie is in law adiudged a kind of affinitie Maintenance in respect the partie could not speake English 31 A. brought a writ of Maintenance against B. and supposed 34. H. 6. 26. 15. H. 7. 2. that the same B. did maintaine L. in an action which he brought against the said L. on the part of the said L. Whereunto the sayd B. pleaded that the same L. was a Dutchman borne out of the Kings obedience and could not speake the English or Latine tongue and therefore being acquainted with B. the defendant who could speake the Dutch tongue he desired him to bring him to some man learned in the law to be of his counsell in that suit and to informe that learned man of the truth of his cause in question whereupon hee brought him to one M. a man learned in the law and opened the truth of his case vnto the said M. as he receiued it from the said L. in Dutch which is the same maintenance And this was adiudged a good plea in barre and a lawfull maintenance for it is a déed of charitie to aid and helpe him who could not helpe himselfe And the Dutchman had no meanes to helpe himselfe being a straunger borne and not vnderstanding the English nor Latine tongue but by the assistance and information of some English man Maintenance in a professor of the Law 32 If a Serieant at law an Apprentice or other Councellor 6. Ed. 4. 5. being retained for his fee doe giue vnto his Client the best counsell that he can for the recouerie or defence of the suit which he vndertaketh according to the ordinarie course of the law or doth enforce the euidence at the barre so much as he can at the tryall of his clients cause this is lawfull maintenance and iustifiable But if he doe pay or promise money to any of the Iurie to giue his verdict for his client or do threaten any of them to be killed beaten 22. H. 6. 6. or otherwise euill intreated if they do giue their verdit against his client or if he do speÌd 11. H. 6. 13. or do offer to spend his own mony in defence of his clients cause this is vnlawful mainnance and punishable according to the before rehearsed stat of ann 1. R. 2. for those things he doth not as a lawyer or according to the course of the law nor by the warrant of law but by iniustice and vpon his owne corruption and wrong But in the first specified case if a man that is not learned in the law 22. H. 6. 5 hauing himselfe no interest in the cause in question will declare to the Iurie or to the partie or to his counsell the cause in question and the circumstances thereof as a man learned in the law this is vnlawfull Maintenance in him though hee doe it as well as a man learned in the law for hee doeth it vpon Maintenance where the learned man doeth it for his fee. And so it is if a man that hath land in suit or question will bring and shew his euidences and writings to a Nobleman Fitz. Maint 21. Gentleman or other man of countenance that is not learned in the law and
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 whoÌ 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
of them which office or any part of it doth concerne the administration or execution of iustice or which shall coÌcern any clerkeship to be occupied in any court of record wherin iustice is to be ministred then he so offending shall not loose onely all his right estate which hée shall then haue of in or to the sayd office or deputation but also he that shal giue or promise any money fée or reward for any such office or deputation shall immediatly vpoÌ the said gift or promise be adiudged a disabled person in the law to all intents to haue or enioy the said office or deputatioÌ And euerie such bargain sale bond couenant promise and assurance shall bée void to and against him by whom the same is made But this Act shall not be preiudiciall to the chiefe Iust of the K. Bench Common pleas or to the Iust of Assise but they may do in euerie behalfe concerning any office to be granted by any of theÌ as they might haue done before the making of the same Act. And because the prouidence of the realm did conceiue some iealousie suspition in those learned men in the lawes of this realm who by their owne means industrie for their own coÌmoditie and ease obtained to be Iust of Assise in the counties where they were borne or did dwell and did feare that affection fauor towards their kinsmen allies neighbors and friends might sometime allure theÌ to decline from the beaten path of iustice therfore by one stat made An. 8. St. 8 R. 2. 2. St. 33. H. 8. 14. R. 2. another An. 33. H. 8. it was enacted No man shal be iustice of Assise in his owne countie That no Iustice nor other man learned in the laws of this realm shal exercise the office of Iust of Assise within the countie where he was borne or doth inhabit vpon pain to forfeit for euery offence done contrary to this act C. l. to the K. him that will sue by B. P. I. or actioÌ of debt wherin no W. E. P. But this stat doth not exteÌd to any Clerk of Assise associat to any Iust of Assise nor to the Iustices Iustices Clerks or Clerk of Assise withithin the Duchie and County Palantine of Lancaster nor to the I. of the one Bench or the other for taking hearing determining of Assises in the said courts nor to any Iust that shal take any Assise vpon adiournment for difficultie of the same nor to any Maiors Sherifes Recorders Stewards Bailifs Sutors or other officers in any citie borough or towne but they may be I. of Assise of Fresh force and of other Assises in the same towne c. where he or they do dwell or were borne as they might haue bin before And in like sort by the stat of W. 1. A Serieant A Pleader it was established That if any Serieant Pleader St. 3. Ed. 1. 2 or other do any deceit in the K. court or do consent therunto to beguile the court or the partie is therof attainted he shal be imprisoned a yeare a day and being a counsellor he shal not any more be receiued to plead in the K. court for any man and if he be any other than a pleader he shal be imprisoned as aforesaid And if the trespas require a greater punishmeÌt it shal be at the K. pleasure And by the stat of An. 10. A Philozer An ExigeÌter H. 6. An. 18. H. 6. it was enacted That if any Philozer Exigenter St. 10. H. 6. 4 18. H. 6. 9. or any other officer of the K. Bench or Common pleas do make any entry in any suit that the plaintife in the same suit hath offered himselfe in his owne proper person except the pl. in the same suit before such entrie be made do appeare in his own proper person before some of the Iust of the place where the plea is depeÌding there be sworn vpoÌ a book that he is the same person in whose name the said suit is pursued or that some other credible person of the K. counsell wil take such oth for him the said philozer exigenter c. shal forf xl s. to the K. euery time that he shal be attainted by the examinatioÌ of any of the I. of the same place where any such entry or record is 3 And because Atturneies be also necessary meÌbers in the coÌmonweale special means to solicit further the executioÌ of iustice therfore the law hath had a careful regard that they should be men of integrity vertuous and of good name and hath prouided seueral stat to punish such of theÌ as shall coÌmit any notorious falshood guile fraud slacknes ignorance omissioÌ or contempt of dutie As by the stat of An. 4. H. 4. it was ordained St. 4. H. 4. 18 That all Atturnies shal be examined by the Iust by their discretioÌs their names shal be put in the rol they that be good vertuous learned of good name shal be receiued sworne wel truly to serue in their offices specially that they make no suit in a forein couÌty And if any such Atturney be notoriously found in any default of record or otherwise he shal forsweare the court neuer after be receiued to make any suit in the K. courts And this ordinaÌce shal be performed in the Exchequer after the discretioÌ of the treasurer the baroÌs there And accordingly by one other stat made an 3. Ia. it was enacted St. 3. Iac. 7. That none shall from henceforth be admitted Atturneies in any of the K. courts of record at West but such as haue bin brought vp in the same courts Who shal be Atturneyes or otherwise wel practised in soliciting of causes Soliciters haue bin fouÌd by their dealing to be skilful of honest dispositioÌ and none to be suffered to solicit any cause or causes in any of the courts aforesayd but only such as are known to be men of honest dispositioÌ And no Atturney shal admit any other to follow any suit in his name Following a suit in anothers name vpoÌ paine that both the Atturney he that followeth the suit in his name shal each of theÌ forf for such offence xx l. to the K. and the party grieued to be recouered in any of the said courts of record by A. B. P. I. wherin no W. E. P. c. And the Atturney in such case shal be excluded froÌ being an Atturney for euer hereafter By the stat of an 18. H. 6. it was enacted St. 18. H. 6. 9 That in all cases wherin proces of Capias ExigeÌt lyeth if the Atturney haue not his warrant of record the same terme that the Exigent is awarded he shal lose xl s. to the K. if he be attainted therof by examinatioÌ of the Iust And by the stat made an 32. H. 8. St. 32. H. 8.
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 coÌmitted 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
debt by W. B. P. or I. in any of the K. Courts A Legacie giuen to a spirituall person wherein no W.E.P. c. But it is lawfull for any spiritual person to take any summe of mony or other thing which by any person dying shal be giuen bequeathed to him or to the high altar of the Church No Mortuary or Corse present shall be giuen or demaunded of any person St. 21. H. 8. 6 but in such place onely where Mortuaries haue béene vsed to be paied and giuen Nor any person shall paie Mortuaries in more places than one that is to say But one Mortuarie for any person in the place of his most dwelling and habitation and there but one Mortuarie St. 21. H. 8. 6 No Mortuarie shal be taken or demaunded of any person whatsoeuer he be which at the time of his death hath in moueable goods vnder the value of ten markes No parson curat or other spirituall person nor any of their farmors The parsons dutie for all Mortuaries bailifes or lessées shall for any person dying or dead and being at the time of his death of the value in moueable goods of ten markes or more aboue his debts paied and vnder the summe of thirtie pounds take for a mortuarie aboue thrée shillings foure pence in the whole And for a person being at the time of his death of the value of thirtie pounds aboue his debts paied in moueable goods and vnder the value of fortie pounds there shall no more be taken for a mortuarie then sixe shillings eight pence And for a person hauing at the time of his death of the value in moueable goods of fortie pounds or aboue to any summe there shall no more be taken paied or demaunded for a Mortuarie then ten shillings in the whole St. 21. H. 8. 6 No Parson Vicar Curat c. or other shall take demaund or aske any Mortuarie or other thing by way of mortuarie Who shall pay no Mortuaries for any woman being couert baron nor for any childe nor for any person not keeping house nor for any waifaring man or other that maketh not residence in the place where they shall happen to die But the mortuaries of such wayfaring persons shal be answerable in places where mortuaries haue béene accustomed to be paied and in maner forme and rate aboue mentioned and none otherwise in the places where such wayfaring persons at the time of their death had their most habitation house and dwelling place and no where else St. 21. H. 8. 6 No mortuaries or Corse presents nor any summe of money for them shal be demaunded or had in the parts of Wales Mortuaries in Wales Barwicke and the Marches nor in the Marches of the same nor in the towne of Barwicke or the Marches of the same but onely in such places where Mortuaries haue béene accustomed to be paid Neither shal any Mortâaries nor Corse presents nor any thing for them be demaunded or had in those places but only after the order and manner aboue specified and none otherwise nor for any other person then is aboue limitted But it is lawfull to the Bishop of Bangor Landaffe S. Dauid and S. Asse and likewise to the Archdeacon of Chester to take such mortuaries of the priests within their Diocesses iurisdictions as heretofore haue béene accustomed St. 21. H. 8. 6 No person shal be compelled in such places where mortuaries haue beene accustomed to be taken of lesse value then is aforesaid to pay any other mortuaries or more for any mortuarie then hath béene accustomed Mortuaries of lesse value by custome Nor any mortuarie shal be demaunded taken or had in such place of any person or persons exempt by this Act nor contrarie to this Act. 30 There be certaine other extortions or exactions in spirituall Ecclesiasticall or Scholasticall causes which antiquitie did not know or dreame of and therefore neither made Statutes or ordained any temporall lawes against them but the same hauing great societie and intermixture with Simonie and being sprung out of a spurre of the roote of Auarice are so secretly put in practise that humane policie only will be hardly able to know them and lesse to represse them for in most cases the offendors therein do wittingly enter into corrupt and wilfull periurie and vpon premeditate consideration doe violate their oathes solemnly and aduisedly taken when they doe first enter into their owne vocations and degrees It is a soule and odious fact and hatefull in the eies eares and hearts of all good persons that a man to whom the law hath giuen no profit interest or right in the tythes glebe or other fruits of a Benefice but onely a bare and naked authoritie to present collate or admit a worthy meet and fit man to the same should for a lease annuitie money or other reward present collate or admit a man be he worthy or vnworthy to the same Or that a man who doth or ought to come to a benefice with cure of soules fréely should for any money pension or other consideration corruptly resigne or exchange the same Or that a man in whom the law hath reposed a speciall trust to make choice of ministers and preachers according to their vertue learning and worth should admit them for money or other reward Or that they who haue but onely the nomination or presentation of a fellow scholler or other person to any place in a colledge schoole or other societie should take money or other reward for their voices or assents in such election Or that he who hath place in such a societie should take reward for the resigning or leauing of it as if the same places and liuings were their owne lawfull freehold and they authorised to make sale thereof The which grieuous and irreligious enormities the high court of Parliament assembled Anno 31. St. 31. El. 6. El. did there indeauour and shew their good meaning to reforme by an Act wherein it was agréed That if any person or persons bodies politique or corporat shall or doe for any summe of money reward Exaction for presenting or collating to a Benefice gift or profit directly or indirectly or for or by reason of any promise agréement graunt bond couenant or other assurance directly or indirectly present or collate any person to any Benefice with cure of Soules dignitie prebend or liuing Ecclesiasticall Or giue or bestowe the same for or in respect of any such corrupt cause or consideration Then euery such presentation collation gift and bestowing and euery admission institution inuesture and induction thereupon shall be vtterly void and of none effect in law And it shall and may be lawfull to and for the Quéene her heires and successors to present collate vnto or giue or bestowe euery such Benefice dignitie prebend and liuing Ecclesiasticall for that one time or turne onely And all and euery person or persons bodies politique and corporat that
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 armâs 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
wrong to the disheritance of another or to the preiudice of his Fréehold without any warrant of law 18. Ed. 3. 22. 21. Ed. 3. 2 Co. li. 5. 101. Li. Int. 406. or colour of iustice As if one person doe build or leuie a house a wall a shead a leantor a chimney a gutter or other structarie in his owne ground to the offence of anothers fréehold or to the drowning or rotting of his house or to the stopping of his light or way thereunto this is an oppression 46. Ed. 3. 23. 7. Ed. 3. 56. And if one person doe leuie rayse abate or pull downe a Damme Poole Pond or Ditch to the hurt of anothers Fréehold that is an oppression 27. Ed. 3. 88. 12. H. 4. 3. 8. Ed. 4. 5. 48. Ed. 3. 27 8. Eliz. Dyer 2 50. 14. Eliz. Dyer 319. And if one person doe stoppe straiten or turne an auncient water-course to the hurt of anothers Freehold or in such sort as it doth drowne the ground or soyle of another that is an oppression And if one person do stoppe streiten or greatly impaire anothers highway which hée hath belonging to his Fréehold that is an oppression If one person doe conuey water to his house or ground by a pipe of lead timber or vault of stone and another person will make another pype out of that pype to take away part of the same water that is an oppression of him that made the first pype And if one doe erect a lime-kill néere vnto anothers dwelling house 4. Ed. 3. 36 5. Ed. 3. 43. 4. Ass p. 3. the smoake and heat whereof when it is set on fire doth annoy the inhabitant of the said house and his familie or doth scorch or dry vp the fruit trées in his orchard that is an oppression And if one person hath the fréehold of a seueral fishing in a riuer pond poole moat mill damme or other water Lib. in t 406. and another person wil build a dye-house adioyning or neere vnto it and then will powre out or cause to run from thence corrupt ashes dung slime filth or other annoyances into the said seuerall fishing place to the distruction of the fish there whereby the owner doth loose the benefit of his seuerall fishing that is an oppression of him And if one person will erect or settle vp a Faire or Market Fit Nat. Br. 184. Register 197. 199. Li. Int. 407. to the preiudice or hinderance of anothers Faire or Market that is an oppression of him who had the first Faire or Market And if one person do lay timber faggots stones lime sand grauell dung or any other thing vpon or against the house of another which do rot putrifie corrupt or impaire the walls timber or other part of the same house or any corrupt noisome or stinking thing the sauor or smell whereof is offensiue to the inhabitant of the same house and his familie that is an oppression of the same inhabitant The remedies for oppression by Nusances In which foresaid cases the parties grieued by the said Nusances and oppressions may in some cases haue their remedies by Assise of Nusance brought in the Common Pleas in some other cases by writs of Nusance called Vicountiels tryed in the Countie before the Sherife in some other cases by the writ of Quod permittat in some other cases by action vpon the case and in most of the sayd cases the sayd parties grieued by the sayd Nusances may take away pull downe Co. li. 5. 101. and remooue the same Nusances as their seuerall estates will enable them or their seuerall cases doe require Oppression by Rescous 6 Euerie Rescous that is vnlawfully made of cattel or other goods distrained is an oppression for the offendor doth a wrong of his owne authoritie to the preiudice of another in contempt of the iustice of the Realme without any warrant or colour of law Séeing when the partie grieued by himselfe 44. Ed. 3. 20 40. Ed. 3. 32. 17. Ed. 3. 43. 18. Ed. 3. 30 2. H. 4. 15. or some other doth distraine within his fée for his rent or seruices behind for dammages which hée hath sustained for amerciaments a rent charge or for some other cause which hée taketh to bée lawfull the cattell or other goods of him who he doth conceiue detaineth his due rent or seruice from him or whose cattell haue eaten or spoyled his corne or grasse or otherwise haue trespassed in his ground and doth in quiet and peaceable manner driue them towards the pownd there to remaine as a pledge sub custodia legis vntill the law hath decided whether there was iust cause of distresse or not the owner of the same cattell or some other in his behalfe will by force and strong hand make Rescous of this cattell and take them from him who distrayned them and so will not submit himselfe to the censure of the law nor tarrie vntill it be discussed by the ordinarie course of iustice whether the party that distrained had lawfull cause so to doe or not but will be his owne iudge and take the authoritie of reuenge to himselfe which is an oppression of him whose rent or seruices were due and vnpayd or whose corne or grasse was eaten c. and who was also forcibly depriued of the ordinarie remedie which the law did assigne him for the recouerie of his owne duetie And moreouer it is a contempt of the law which the same offendor doth refuse to be iudged by 7. H. 6. 1. 22. H. 6. 54. Fitz. Na. Br. 101. and therefore in this case the partie grieued may pursue against the offendor a writ of Rescous for this Rescous made and oppression done vnto him and thereby recouer his dammages and also the King shall haue a fine of him for this contempt of his law and his peace broken Li. Int. 527. and the offendor shall be imprisoned vntill hée hath paid the same 7 Euery Encrochment which one person doth make vpon anothers land Oppression by incrochments ground couered with water rent or seruice is also an Oppression for they be done and put in practise by the offendors own open plaine manifest wrong without any warrant or colour of the law As it is an oppression for one person by ploughing earing ditching hedging remoouing of Méerestones or land markes 22. Ass p. 93 to get away the ground or soyle of another and so it is for one person to draw away or alter an auncient Riuer Brooke or Streame of another persons out of the old and wonted course and so it is if there be lord and tenant and the tenant doth hold his land of his lord by fealty fiue shillings of yearely rent and of late yeares the lord hath had seisin of more rent of the tenant by the tenants owne payment without cohertion of Distresse if in this case the lord will distraine his tenants Cattell for that surplusage of rent that
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 coÌmitteth 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
seasonable wood bée of it selfe no wast 40. E. 3. 15. 12. H. 8. 1. 10. H. 7. 5. yet if Willowes or any of the trées aforesaid doe growe within the viewe or scite of a Mannor house to defend the house from tempests and stormes or néere vnto the banke of a Riuer to defend the Banke then the felling of them is wast and the tenant of the land is punishable for the same by an action of Wast If a tenant for yeares life 20. Ed. 3. Wast 32. 9. H. 6. 66. 11. H. 6. 1. 22. H. 6. 12. 4. H. 3. Wast 140. or c. doe fell Oakes Ashes or Elmes and after he hath felled them he doth suffer cattell to come into the same ground which doe croppe and spoyle the sprouts or newe springs growing out of the rootes of the same trees then this is a newe and another Wast and punishable by the same Action of Wast that the Trees bée or by another in which Action hée in the Reuersion or Remainder shall recouer treble dammages first for the Trees felled and also treble dammages for the springs spoiled though hee can but once recouer the place wasted If the Termor doe fell greene wood to burne 20. E. 3. Wast 32. 7. H. 6. 40. 22. H. 6. 24. where hee hath dead wood sufficient it is Wast But the felling of dead wood which will beare no leaues in Summer is no Wast neither is the pulling downe of a hedge Wast or of a Pale or Wall that is vncouered Wast And the foresaid Writ of Wast proceedeth further to punish wast in Gardens Wast in gardens Therefore if the Termor doe fell and destroy Appletrees or Pearetrees growing dispersed in seuerall places of the ground demised vnto him it is no Wast for hee may fell them and take them to burne as seasonable wood 10. H. 7. 5. 21. H. 6. 46. But if he fell a whole Garden or Orchard of Apple-trees or Pearetrees or any great number therein it is wast for the wordes of the Writ of Wast doe expresse so much which be Non liceat alicui vastum vendicionem seu destructionem facere in terris domibus Boscis seu Gardinis And if any Appletrees or Pearetrees be throwne downe by the winde in an Orchard or Garden 44. E. 3. 44. and they doe leane vpon some of their boughes and the spurres or rootes of them continuing fast in the ground doe so cherrish the trees that they doe beare fruit it is wast to fell and carrie them away And to make an end of this Braunch with the wordes of the foresaid Statute of Marlebridge touching exile of men If the tenant for yeares life or c. of a Mannor doe so vexe the villeins regardant of the same Mannor by Distresses Wast in men Fines Amerciaments 29. H. 8. Dyer 37. Fit N.B. 55 Fitz. Wast 2. 113. 118. 130. 131. or otherwise that the same villeins doe depart from their Tenements this is to the disheritance of him in the Reuersion or Remainder and therefore punishable by an Action of Wast But if the Termor of a Mannor during his estate doe enfraunchise a villeine regardant to a Mannor this is no Wast punishable by the Lawe 2. H 6. 11. for after the particular estate ended he in the Reuersion or Remainder may seize the same villeine againe cum tota sequela sua If the tenant for yeares life or c. of a Manor or other land wherein there bée cottages or small Tenements doe demise the same Cottages or c. to seuerall Tenants and they doe die of the Plague and the same Leassée can get none other tenants to inhabit the same Cottages or c. whereby they doe decay and fall downe 44. E. 3. 21. Fitz. Wast 104. 105. the Leassée is not punishable therefore by an Action of Wast for that the wast which ensued by the death of those Cotiées or inferiour tenants came by the visitation and hand of God and not by any default of the Termor and therefore the said Termor doing his endeauour to reforme the defect and to prouide other tenants and béeing not able to performe it could not redresse the same 10 When one person doth bargain couenant or coÌclude with another for any paimeÌt matter cause or thing to be êformed is once fully satisfied therof by money wares or other means according to the true inteÌt of the same agréemÌt if the same partie doe after sue or attempt by course of Law to obtaine a new or other satisfaction for the same contract this a plaine and manifest wrong and oppression for the said partie doth in a sort endeauour to bee twice satisfied for one debt or dutie And likewise it is an oppression and wrong if one person doe endeauour to lay a burden or charge vpon others which the Lawe of the Realme will not impose vpon them or which himselfe alone or himselfe with others ought to sustaine or when one person shall imprison or restraine another of his libertie who by law ought to bée free As if one person bée bound to another by Statute marchant or Statute Staple for the paiment of a summe of money whereof there is a defeasaunce that if the Conusor doe pay to the Conusée a lesse summe of money at a day prefixed 46. Ed. 3. 4. 47. Ed. 3. 26. 20. E 3. Fi. N.B. 105 or diuers summes at seuerall daies or doe performe certaine couenants or agreements in the said defeasaunce or in certaine Indentures made betwéene them specified and the conusor doth pay the said summe or seuerall summes of money or doth performe all the couenants in the said Indenture specified according to the purport of the said defeasaunce and that notwithstanding the Conusée doth sue execution of the said Statute against the Conusor this is a manifest wrong and oppression pretended to the Conusor Wherefore the Conusor for his reliefe may haue an Audita querela directed out of the Chauncerie to the Iustices of the Kings Bench Oppressions redressed by an Audita querela or Common Place comprehending the whole matter and charging them to call before them the parties Plaintife and Defendant and to doe them iustice according to the Law and Custome of the Realme which is either to graunt a Supersedeas to stay the Execution or to set the bodie of the Conusor at libertie if hée be taken and imprisoned therefore and to discharge his lands and goods of execution if the suggestion of the plaintife in the said writ be prooued to bée true And if the Conusée in the case aforesaid doe take away the defeasaunce or Indenture from the Conusor 47. Ed. 3. 26 Fi. N.B. 103 and after extend the same Statute against him this is likewise an oppression and to bée redressed by an Audita querela And in like sort if the Conusée after the said Statute acknowledged doe make a Release or Acquitance of the same to the Conusor and
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 coÌstrued 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 sÌ 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 prisoÌ 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 offeÌdor 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 oâ 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 coÌuerting 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 reseÌbled to the pitifull lamentation which the prophet Ieremy sitting downe wéeping made Threnae Ierem. after the temple of God the city of HierusaleÌ were destroyed the priests Leuits Elders slaine by Nabuchadnezzar K. of Babilon Or the same may be coÌpared to those wofull miseries calamities which the prophet Esay foretold should after fall vpoÌ 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.
raigne that now is which is not or hath not bin the castle or dwelling house of any nobleman or gentleman nor the chiefe mansion house of any manor is and shal be adiudged a house of husbandry for euer and all acres spoken of in this statute shal be adiudged acres according to the Statute or Ordinance de terris mensurandis Which is an acre of land And euery person persons bodies politique and corporat which shall offend in not building erecting repairing continuing or maintaining of houses of husbandry according to the purport true meaning of the said statute The forf for not building a house of husbandry shall for euery house that shal not be erected builded repaired continued or maintained in necessary reparations tenantable according to the intent of the same act by the space of one yéere forf x. l. and so yéerely x. l. vntill the same shal be sufficieÌtly erected continued repaired c. and for euery acre of land meddow or pasture which shal not be laid vnto or let with such houses of husbandry when the same shal be demised shal forf for euery yéere that he or they shal so offend the summe of x. sÌ as long as often as such acre shall not in those respects be ordered vsed according to the intent of this act of which forf the K. shal haue one part the poore of the parish where the offence was committed the second part and he that will sue in any of the K. courts of record at Westminster the third and if none will sue theÌ the K. shal haue also that third part But no offendor shall be impeached or sued by vertue of this act Within what time the suit shal be preseÌted except the suit be brought and commenced by the party for the king himselfe within 2. yeares of the same offence done but where the suit shal be prosecuted for the K. only c. then within 3. yeeres after the offence done Oppression by decay of Tillage 34 By the stat of an 39. El. 2. it was ordained St. 39. El. 2 That all lands and grounds which now are vsed in tillage or for tillage hauing bin tillable lands fields or grounds such as next before the first day of this parliament haue béene by the space of 12. yeres together at the least vsed in tillage or for tillage according to the nature of the soile course of husbandry vsed in that part of the countrey shall not be coÌuerted to any shéepe pasture or to the grazing or fatting of cattel by the occupiers or possessors thereof but shall according to the nature of that soile course of husbandry vsed in the part of the country continue to be vsed in tillage and for tillage for corne graine not for wood And if any person body politique or corporat shal offend against the premisses theÌ the offeÌdor shal forf for euery acre not restored or not coÌtinued as is aforesaid x. sÌ for euery yere that he or they so offeÌd to be diuided into 3. parts then to be distributed as is aforesaid so that the suit be coÌmenced or prosecuted wtin the time or times before mentioned I haue for some special causes herein set down but only the offeÌces penalties mentioned in the two last specified stat of an 39. El. 1. 2. Wherefore the two last stat bee not set down at large omitting purposely the exceptions reseruations prouisoes and some other matters in the same 35 As Menaces Assaults Batteries Imprisonments Maihems Riots Routs vnlawful assemblies Forgeries Periuries Maintenances Deceits Extortions Oppressions all other the crimes before mentioned haue from one age to another bin noted accused as maladies in the common wealth and adiudged condemned as professed enemies to the peace of the realme and by seuerall lawes statutes diuers penalties haue bin imposed vpoÌ the transgressors thereof in a measure certaine within some limits So the prouidence of our forefathers sounding déeper into the corruptioÌ of mans nature foreséeing that sometime his cholerike passions turbulent spirit sometime the gall and bitternes of his heart sometime his couetous insatiable affections eftsoons his secret desires deuices of reuenge doe carry him headlong into exorbitant vnusuall designments practises be they neuer so contrary to the Lawes of God of Nature Reason in seueral degrées further theÌ our said lawmakers did then either fore-thinke feare or by particular words restraine knowing also that the subtiltie of the Serpent and of men of the serpents nature doth excéed the other beasts of the field haue therefore erected established the most honorable Court of Starre-chamber All the former offences punishable in the Star-chaÌber to the intent that the wisedome of that Court authorized partly by the K. prerogatiue partly by seuerall lawes statutes of the realme might search forth the serpents subtilty and vtterly crush dash the same and séeing the dead letter of each law doth ordaine in most cases but one kind of punishment for one sort of offence the circumspection of the makers of that law were they neuer so wise or experieÌced could not foresée all the circumstances which in time might ensue in the maner of transgressing of that law Therfore the lords others of that high Court being now the speaking law representing the persons of the dead lawmakers carefull expositors of their meanings by their graue foresights déep considerations do looke into those offeÌces which be coÌmitted contrary to the same lawes do search into euery quarter corner circumstance therof do pierce through the very bowels intrailes of them and the transgressors thereof as what persons of what estate St. 13. H. 4. 7 St. 2. H. 5. 8 degrée ability function or calling coÌmitted the offeÌce to whom in what manner in what place at what time before whom with what number for what cause the same was done then do inflict punishmeÌt vpon the transgressors thereof first according to the lawes statutes therfore prouided then do qualifie or aggrauate the same according to the circumstances As it is a Riot punishable by the stat of An. 13. H. 4. Ann. 2. H. 5. if thrée persons or more do assemble together and beat or mayme a man pull downe his house pale or ditch wrongfully c. so if a great number of meane persons of small ability or credit shall assault a péere of the realme or a Knight or Esquire that is CustoÌs Rotulorum of the shire or a Iustice of peace and Quorum in his country shall strip and whip him shall pull downe his house to the ground shall set him in the stockes or on the pillory shall beat his wife and children kill his cattell and spoyle his corne before his face and shall vse other acts and wordes of infamie and disgrace vnto him and only for
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 exaÌple 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
another manner of Treason when a seruant killeth his Master c. although there be therein no mention made of the Mistresse yet if a man or woman seruant do kill his or her Mistresse or Dame A seruant killeth his Master or Mistresse it is Petit treason 19. H. 6. 47. 12. Ass p. 30 and within the puruiew and meaning of the said stat though it be not within the letter thereof and it was Petit Treason by the common law for the seruant is retained to serue as well the one as the other and to be obedient as well to the one as to the other and one of them hath affiance in the seruant as wel as the other And if a seruant kill his Master after he is out of seruice 33. Ass p. 7 Co. li. 1. 99. if it be vpon a premeditat malice conceiued against him during the time that he was in seruice it is petit Treason for the execution of the fact doth respect and looke backe to the originall cause which was the malice the seruant conceiued against his Master when he was his seruant If a seruant do procure one to kill his Master 40. Ass p. 25 who doth kill him in the seruants presence this is petit Treason in the seruant but if he do kill him in the seruants absence then is it not petit Treason in the seruant but he is accessory to murder 2. 3. P. M. Dy. 128 A woman seruant conspired with a stranger to rob her Mistresse and at a time appointed in the night she did let him into the house and led him to the bed with a candle where her Mistresse lay sléeping the same stranger killed her Mistresse in her bed the seruant saying or doing nothing but holding the candle in this case the seruant committed petit Treason and was adiudged a principall therein though the partie who did the bloudy fact The wife coÌspireth with another to kill her husband was but a murderer P. 16. Eliz. Dyer 332. If a wife and a seruant do conspire to kill the husband and appoint a time and place for it and the seruant killeth the husbaÌd in the wiues absence this is petit Treason in them both though the wife bée absent and yet the law is otherwise if he be not a seruant but a stranger for if a woman procure a straÌger to kil her husband which he doth in her absence she shal be hanged and not burned for that the principall offendor was a murderer and not a Traitor as the seruant was in the former case 4. Ass p. 25. And so abettors and procurers Abettors and procurers in petit Treason be within this part of the stat touching petit Treason although they are not expresly named within the letter of the statute The son killeth father or mother 8 Some do affirme it to be petit Treason in the sonne or daughter 21. Ed. 3. 17. to kill the father or mother and some others doe not thinke it to bée so vnlesse the father or mother doe at the same time giue meat and drinke to that sonne or daughter which doth kill him or her as to a seruant and so that the Treason should be in respect of the duetie of seruice broken and not of duetie of nature violated Breaking of prison 9 It is Petit Treason if a man outlawed of felonie 1. H. 6. 5. and imprisoned in the K. Bench be attainted for breaking of prison and letting at libertie such persons as were there imprisoned for Treason and the offendor shalbâ drawn and hanged An Indictor doth discouer counsell And it hath béene adiudged petit Treason in some age 27. Ass p. 6â and felony in another age S. Felonie c. 15. for one of the indictors to discouer the K. counsell and his fellowes but sithence it hath béene taken onely as finable to the King Treasons by Statutes 10 Besides the before mentioned offences which be explained to be Treasons by the common lawes of this realme and besides all the offences aforesaid which were made Treason by the seuerall stat before rehearsed and after repealed by the foresaid stat of An. 1. M. there haue béen sithence that time seuerall other offences made high Treason by seueral stat which I wil set down in order as they were made and as néere as I can gather expresse the causes why they were made For as much as by the lawes of this Realme small and no due and condigne punishment was before prouided for such euill disposed persons as shold counterfeit or forge such kind of gold or siluer of other realms as is not the proper coine of this realm and yet permitted by the Quéens consent and heretofore suffered by her progenitors to be currant in paiment within this realme nor for such persons as shold counterfeit the Quéens signe manuall St. 1. M. 6. her priuie signet or her priuie seale therfore by a stat made An. 1. M. 6. it was enacted Forging the coins of other realms curraÌt in this realme That if any person or persons shall hereafter falsly forge or counterfeit any such kind of gold or siluer as is not the proper coine of this realme and is or shal be currant within this realme by the consent of the Q. her heires or successors or if any person or persons at any time hereafter doe falsly forge or counterfeit the Qu. signe manuall priuie signet or priuie seale Forging the Kings signet Manuall c. that then euery such offence shal be déemed adiudged high treason the offendors therein their counsellors procurers aiders and abettors being conuict according to the lawes of this realme of any the said offences shall be likewise déemed and adiudged Traitors against the Qu. her heires and successors and the realme and shall suffer and haue such paines of death forf of lands goods and cattels and lose the priuiledge of all Sanctuarie as in case of high Treason is vsed and ordained 11 Where sundrie coynes of gold and siluer of other realms not being the proper coine of this realme of England and by the sufferance of the K. and Q. be currant in paiment within this realm many euil disposed persons for their owne corrupt lucre did bring into this realme from the parts beyond the sea great quantitie of forged and counterfeit money like to the said coine of other forreine realmes and did vtter the same by marchandises and otherwise to diuers subiects of this realme to their great damage for that there was not any sufficient law then prouided for the condigne punishment of the offendors in that behalfe St. 1. 2. P. M. 11. therfore by a stat made An. 1. 2. P. M. it was established That if any person or persons shal bring from the parts beyoÌd the sea into this realme or into any of the dominions of the same Bringing in of
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 pârty 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 coÌmonly 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
proued that neither the horses nor cart did stirre then the whéele of the cart onely shall be a Deodand and not the horses nor the residue of the cart for that none of them did moue to the carters death Fitz. Cor. 401. 53 If a man ride into the water to water a horse Falling from a horse into the water A horse killeth a man From what time a Deodand shal haue relation and then falleth from the horse and is drowned the horse shal be a Deodand And if a horse bull boare c. do strike a man Fitz. Cor. 298. Pl. Com. 260. and after he dyeth of that blow the horse bull boare c. shal be a Deodand And if the owner of the horse that did giue the same mortall blow doe alien the horse to another betweene the time of the stroke giuen and the death of the man yet the King may seise that horse as forf for a Deodand for the forfeiture shall haue relation from the stroke giuen which was the cause of the mans death Fitz. Cor. 405. 54 If a beame whereupon a bell in a Church doth hang A beame of a bell of a church doe fall vpon a man and kill him as well the beame as the bell shall be Deodands notwithstanding that they were before the goods of the Church and in a sort Deo datum Fitz. Forf 20. But if a man be digging in a pit mine or quarrey of stone marle grauel sand coale or turfe and a great heap of earth do fall vpon him and kill him the same heape of earth onely shall be forf to the K. and not the whole pit mine or quarrey Fi. Cor. 389 55 If a man do fall from a bridge into the water The whéele of a mill and is carried by the force of the streame vnder the wheele of a mill and thereby is slain the whéele of the mill only shal be a Deodand Kel fol. 68 If timber boords wainscot or other goods do fall vpon a man and oppresse him to death the same shal be a Deodand Fitz. Cor. 314. 56 If a man falleth from his horse and breaketh his head necke back Falling from a horse against a trunke c. against a trunck péece of timber or any other thing wherby he dieth the horse onely shall bée a Deodand and not the trunck timber or c. because it did not mooue Fitz. Cor. 348. 57 If a man fall from a ricke or houell of corne hay Falling from a houel or rick or c. whereby hée is killed the same houell or ricke shall be forfeit to the king as a Deodand And so Deodands may be of some things that a man doth moue vnto or from them as well as of those things which moue to a man to kill him 58 If a man do fall from a ship that is sailing and dye thereof Falling from a ship neither the marchandise nor any other thing in the ship is the cause of his death but onely the ship Bracton Britton and therefore the ship only shal be a Deodand And that ship must be vpon the fresh water for if it be vpon the salt water and one doe fall from it then it shal be no Deodand Within the age of xiiij yeares 59 If he that doth come to his death by any casualtie Fitz. Cor. 389. be within the age of xiiij yeares nothing shal be forf to the king as a Deodand for him for the form of the Presentment is A. filius B. vltra aetatem quatuor decem annorum sed quaere The Sherife shal be charged with the Deodand 60 The Sherife of that countie where a Deodand shall be found to bee Fitz. Cor. 298. shall be charged with the price of euerie Deodand and shal answer for it and he shall leuie the value thereof of the same towne where it falleth notwithstanding it was not committed to them to keepe And therefore when such a mischance is found the presenters thereof must also find appraise the Deodand A man found dead in the field 61 If a man be found dead in the field his apparell Fitz. Indict 27. and the money which he hath about him shal be giuen to a Church and shal be distributed to the poore c. and it shall not be taken as a Deodand for it doth varie from the nature of a Deodand being no cause of his death But that distribution shall bee in case where the same man is vnknowne for if he be knowne his money apparell and other things about him shal be deliuered to his executors or administrators or to the Ordinarie ⧠Felonies by the Common Law Larcenie Theft 1 LArcenie is a fraudulent taking away of another maÌs goods aboue the value of twelue pence What is Larcenie with intent to steale them without the knowledge of him whose the goods be 17. H. 8. 22. For if the goods do not excéed the value of twelue pence it is not felonie but petit Larcenie Fitz. Cor. 430. 451. 27. H. 8. 22. for the which the offendor shal be imprisoned Petit larcenie or otherwise punished by the discretion of the Iustices before whom hee is arraigned and also shall forfeit his goods but he shal not be put to death And this intent of stealing to make it Larcenie The intent of the stealing must be at the time of the receit of the goods ought to bee at the time when the partie doth first come to the possession of the goods for if the partie doth come lawfully to the possession of the goods though hée hath an euill intent after to conuert them to his owne vse it is not felonie in him As if a man doth deliuer goods to another who after doth conuert them to his owne vse it is not felonie in him 13. Ed. 4. 9 for no felonie is intended to be done but with violence and vi armis contra pacem which cannot be supposed in this case séeing they were deliuered vnto him by the owner of them and so hée came lawfully to them 2 If any person at seuerall times doe steale seueral parcels of goods which parcels being put together Fitz. Cor. 415. do amount aboue the value of xij d. it is felonie Stealing goods at seuerall times aboue the value of xij d. Felonie in seuerall persons and the offendor shall be hanged And if two thrée or more together doe steale goods to the value of twelue pence Fitz. Cor. 404. this is felonie in them all for the felonie in them is seuerall though the stealing be ioint Fitz. Cor. 451. 3 If any person be indicted for stealing of goods aboue the value of twelue pence and arraigned thereupon The Iurie may find an vnder value of the goods yet the Iurie that passeth vpon his arraignement may giue a speciall verdict and say that the goods did not excéed
the house fearing that they will enter his house and rob him doth cast out vnto them mony or plate which the felons do take and then depart this is robbery for it is in construction of the law taken from the person of a man and for feare 9. E. 4. 26. 29 If one lye in the high way to rob passengers Robbery in will but not in déed and draweth his sword against a man that trauelleth the same way and commaundeth him to deliuer his purse whereupon the same party encountreth him is too strong for him and apprehendeth him or leuieth Huy and Cry and the offendor is thereby taken yet this is no Robberie nor Felony for there was no act done though there was an intent and will to robbe Quia voluntas non reputabitur pro facto 30 Burglary is What is Burglary when one or more persons do in the time of peace breake a house a Church a Wall a Tower or Gatehouse in the night with a felonious intent to robbe kill a man or commit some other Felonie for the which Burglarie the offendor shal be hanged Fit cor 264 22. Ass p. 95 though he take nothing away But that breaking of the house must bee to commit some Felonie For if the offendor be indicted for the breaking of a house to beat some person that is but Trespas 13. H. 4. 8 but if it be to kill another then it is Felony And if a man bée indicted for the breaking of a Close to kill or robbe another it is not Burglarie 1. M. Dy. 99. 31 If a man doe breake a house and doe not enter into it Breaking a house but not entring then it is no Burglarie for a man was indicted Quod burglaritèr fregit ecclesiam in nocte intrauit ad depraedandum bona parochianorum in eadem existentur sed nihil abstulit and this was adiudged Burglary for that the party indicted did enter 32 Burglary cannot be committed in the day but in the night No Burglary in the day for all the indictments of Burglary be Noctantèr fregit St. 39. El. 15. for though by the statute of 39. Eliz. the benefit of Clergie is taken away from any person conuicted for the felonious taking away in the day time of any money or goods of the value of fiue shillings or vpwards in any dwelling house or out-house although no person shal be in the same at the time of the said felony committed and so that offenceis made as penall as Burglary by the losse of the benefite of Clergie yet is it not Burglary for it may be committed in the day time the penaltie of loosing of his Clergy is not inflicted vnlesse the money or goods taken away be of the value of fiue shillings or vpwards Breaking a dwelling house where no person is 33 If a man hath a mansion house Co. li. 4. 40. and he and his family doth vpon some cause goe forth of the house and in the meane time one doth come and breake the house in the night to commit felony this is Burglary For although the owner nor any of his family were in the house yet it is his mansion house for the words of an appeale or indictment of Burglarie be Domum mansionalem ipsius A. B. fregit And in like sort if a man haue two houses and doth inhabite sometime in one of them and some other time in another and hath a familie or seruants in them both and in the night when the seruants be out of the house felons doe breake the house this is Burglarie for that the house is broken ⧠Felonies by Statute ANd now hauing expressed which bee felonies by the common Law it resteth that I declare which be felonies by Statute with the reasons and causes why the same statutes were made so farre as I may be warranted by the same statutes And as in Treasons I began with those Treasons which did concerne the K. and his chiefe magistrates of iustice So in reporting of such lawes and statutes as haue béene made for the supply of some defects at the common Law I will begin with a statute which indeuoreth to restraine such as practise or confederat to destroy the king or his chiefe officers attending on his person or estate 1 For as much as by quarrels made to such as haue béene in great authority office and of counsell with the kings of this Realme hath ensued the destruction of the kings and thereby the vndoing of this Realme so as it hath appeared euidently when compassing of the death of such as were of the kings true subiects was had the destruction of the prince was imagined therby and for the most part it hath growne and béene occasion by enuie and mallice of the kings owne houshold seruants And for that by the lawes of this land if actuall déeds were not had there was no remedy for such false compassings imaginations and confederacies had against any lord or any of the kings Councell or any of the kings great Officers in his houshold or Steward Treasurer Controller and so great inconueniences did ensue because such vngodly demeanor was not straitly punished before that an actuall déed was done for the remedy whereof by a statute made An. 3. H. 7. 14. Conspiring to destroy the king or any lord c. it was ordained St. 3. H. 7. 14. That the Steward Treasurer and Controller of the kings house for the time being or one of them shall haue full authority and power to enquire by xij sad men and discréet persons of the Checke Roll of the kings honourable houshold if any seruant admitted to be his seruant sworne and his name put into the Checke Roll of houshold whatsoeuer he be seruing in any maner office or roome reputed had and taken vnder the estate of a lord make any confederacies compassings conspiracies or imaginations with any person or persons to destroy or murder the king or any lord of this realme or any other person sworne to the kings Councell Steward Treasurer Controller of the kings house that if it be found afore the said steward for the time being by the said xij men that any such of the kings seruants as is abouesaid hath confedered compassed conspired or imagined as abouesaid that he so found by the inquiry be put thereupon to answere And the Steward Treasurer and Controller or two of them haue power to determine the same matter according to the law And if he be put in triall that then it be tried by other xij sad men of the same houshold Challenge And that such misdoers haue no challenge but for mallice And if such misdoers be found guilty by confession or otherwise that the said offence be iudged felony and they to haue iudgement and execution as felons attainted ought to haue by the common law 2 For that vnlawfull and forcible violence and also detestable aduowtrie were committed in
said master or mistresse go away with the said caskets iewels mony or cattels or any part thereof to the intent to steale the same defraud his or their said master or mistresse thereof contrary to the trust confidence in him or theÌ put by his or their master or mistresse or els being in the seruice of his said master or mistresse without assent or commaundement of his master or mistresse hee imbesill the same caskets iewels money goods or cattels or any part thereof or otherwise conuert the same to his owne vse with like purpose to steale it if the said caskets iewels money goods or cattels that any such seruant shall go away with or which he shall imbesill with purpose to steale it as is aforesaid be of the value of forty shillings or aboue then the same false fraudulent and vntrue act shal be from henceforth déemed and adiudged felony and he or they so offending shal be punished as other felons be punished for felonies coÌmitted by the course of the common law Prouided alwaies that this act or any thing therein contained shall not in any wise extend or be preiudiciall to any appreÌtice or appreÌtices nor to any person being within the age of xviij yéeres going away with his or their masters goods or iewels or otherwise conuerting the same to his or their owne vses during the time of their apprentiship or being within the said age of xviij yeares but that euery apprentice or apprentices such person or persons being within the said age doing or offending contrarie to this act shal be and stand in like case as they and euery of them were before the making of this act If a man do deliuer an obligation to his seruant to receiue xx M. 25. H. 8. Dyer 5. l. and the seruant doth receiue the money of the obligor Receiuing money vpon an obligation and theÌ goeth away with the same or doth conuert it to his owne vse this is not felony within the compasse of the foresaid stat of 21. H. 8. for the master did not deliuer any goods to his seruant in this case but an obligation which is not valuable but a thing in action and moreouer the money was not deliuered to the seruant by the hands of his master but by the obligor But if one of a mans seruants doth deliuer to another of his seruants goods of the masters being aboue the value of 40. sÌ and he doth go away with it or conuert it to his owne vse this is felony If a man do deliuer to his apprentice wares or marchandises M. 25. H. 8. Dyer 5. to sell at a faire Receiuing money for wares or a market and he selleth them and receiueth the mony and then goeth away with the mony or conuerteth it to his own vse this is not felony by the stat of 21. H. 8. for he had not the mony by the deliuery of his master neyther went he away with the thing that was deliuered vnto him Seruants imbesilling their masters goods after his death 13 By the stat of AnÌ 31. H. 6. it was ordained St. 31. H. 6. 1 That executors shall haue a writ out of the Chancery by the aduice of the Chauncelor two chiefe Iustices and the chiefe Baron of the Exchequer with two proclamations returnable in the K. Bench against such houshold seruants of the Testator as haue spoiled or eloigned the goods of their master after the death of the Testator And if the writ be returned serued the defendants make default they shall be attainted of felony and if they appeare they shal be coÌmitted to prison there to remaine at the discretion of the Iustices vntill the defendants do answer vnto the said executors in such actions which the said executors will declare against them or any of them by bill or writ for the riot taking and spoiling aforesaid and that the same actions be determined so that such actions be pursued with effect and not slackly to retaine the same persons in prison And if the same persons be enlarged out of prison by the said Iustices then they shal find sufficient sureties to the executors by recognizance to kéepe such daies as they shal haue assigned by the Court. And if the kéeper of the prison whereunto they shal be committed doe let them go at large without order of the Iustices then the said kéeper shall forfeit xl l. to the executors No protection shall lye in any action vpon this statute 14 By the stat of AnÌ 14. E. 3. it was accorded Enforcing a prisoner to become an approuer That shirifes shall haue the kéeping of gaoles St. 14. E. 3. 10 as they had wont to haue and put in such kéepers for whom they will answer And if any kéeper of prison or vnder kéeper shall by too great dures of imprisonment and paine cause any prisoner which he hath in his custody to become an approuer against his will and is thereof attainted he shall be adiudged a felon 15 By the stat of anÌ 5. El. it was enacted Egyptians that euery person persons which shal be séene or found within this realme of England or Wales St. 5. El. 20. in any coÌpany of vagabonds commonly called or calling themselues Egyptians or counterfeiting transforming or disguising theÌselues by their apparell speech or other behauiour like vnto such vagabonds commonly called or calling themselues Egyptians so shall or doe remaine continue in the same by the space of one moneth then the same person or persons shall be déemed iudged a felon and felons and shall suffer paines of death losse of lands goods as in cases of felony by the order of the common lawes of this realme Triall and shall vpon triall of them or any of them be tried in the countrey and by the inhabitants of the county or place where he or they shall be apprehended or taken and not per medietatem linguae No Clergy and shall loose the priuiledge and benefit of Sanctuary and Clergy Prouided Xiiij. yeares That this act shall not in any wise extend to any child or children being within the age of 14. yeares St. 8. H. 6. 12. 16 By the stat made An. 8. H. 6. it was ordained That if any Record Imbesilling of Records or parcell of the same Writ Returne Pannell Proces Warrant of Atturney in the Courts of Chauncery Exchequer the one Bench or the other or the Treasury be willingly stolne taken away withdrawne or auoided by any Clerke or other person by cause wherof any iudgement be reuersed such stealer taker away withdrawer or auoider their procurors counsellors abbettors being thereof indicted and by proces thereupon made therof duly conuict by their owne confession or by enquest to be taken of lawfull men wherof the one halfe shal be of the men of any court of the same courts and the other halfe of other shal be iudged for
them or his or their lands tenements goods or chattels from such thefts spoyles and robberies as is aforesaid Or whosoeuer shall giue any such money corne cattel or other consideration called Blacke mayle for such protection as is aforesaid Or shall wilfully and of malice burne or cause to be burned or aid procure or consent to the burning of any barne or stacke of corne or grain within any of the said Counties or places aforesaid shal be of the said seueral offences or any of them indicted lawfully conuicted or shall stand mute or shall challenge peremptorily aboue the number of xx before the Iust of Assises I. of Gaole deliuerie I. of Dier and Terminer or I. of peace within any of the said counties at some of their generall Sessions within some of the said counties to be holden shal be adiudged reputed and taken to be as felons and shall suffer death without any benefit of Clergie Sanctuarie or Abiuration and shall forfeit as in case of felonie St. 1. Ed. 2. 37 By the stat of An. 1. E. 2. it was ordained in this maner viz. Touching prisoners breaking of prison Breaking of prison the K. doth will and command that none which from henceforth doth breake prison shall haue iudgement of life and member for the breaking of prison onely except the cause for which hee was taken and imprisoned do require such iudgement if he should haue been conuicted thereof according to the law and custom of the Realm though in times past it hath beene otherwise vsed ⧠Principall and Accessorie 1 HAuing treated sufficiently of Treasons Homicides and other Felonies and shewed how many of euerie of them there be I am now to write of those that be culpable therein and to declare which be the chiefe and most grieuous offendors in those crimes whoÌ the law doth terme adiudge Principals and which be but Abettors Procurers and Receiuers whom the law doth brand mark with the name of Accessories and which of those be Accessories before the offence committed and which after in what cases one of them shal be arrested imprisoned appealed indicted arraigned or attainted before the other and in what not when the acquital of the one shall discharge the other and when not and where the punishment of the one shal be greater than of the other and where not And in this title to begin with the greatest highest offence The law doth hold it a rule infallible 3. H. 7. 10. that in High Treason there is no Accessorie No accessorie in high treasoÌ for all the aduisers counsellors persuaders and assistants therein be Principals as much as if they were actors or doers so that whatsoeuer offence doth make a man Accessorie in Felonie the like maketh him Principall in High Treason But in Petit Treason there is oftentimes a Principall and an Accessorie as there is in Homicide Robberie and other Felonies Accessorie before the offence committed 2 There be two sorts of Accessories in Felonie whereof the one is Accessorie before the felonie committed and the other is Accessorie after the offence done As if one hire procure or commaund another to commit a Felonie 10. Ed. 4. 14. but is not present when the other doth it this procurer or commaunder is Accessorie before the offence committed But otherwiâe it is if hee bee present at the time of the felonie committed for in that case he is Principal 4. H. 7. 18. 7. H. 4. 27. And in some case one may be appealed as Principall and Accessorie in one Appeale Procurement of felonie 3 If one bée present at the death of a man 4. H. 7. 18. 13. H 7. 10. Plo. Com. 100. and moueth another to strike and kill him by this meanes hée is principall though hée did strike no stroke as well as hée that killed him For the blowes of hâm that did strike him bée in construction of law the blowes of him which commaunded him when hée was present for if the commaunder had sayd nothing the man slaine had not béene killed 21. Ed. 4 71. 4 If one be present at the killing of a man CoÌming purposely to a manslaughter and commeth thither for that cause although he at that time doth not moue another to strike or kill him neither doth any thing yet hée shall bee adiudged principall For when diueâs doe come to doe an euill act Bro. Cor. 171. Kel fol. 161 Pl. Com. 98 and one alone doth it and the others bée present abetting him or readie to aid him in the fact they bée principals to all intents as fully as hée who did the act for the presence of the other is a terrour to him that was assaulted and the occasion that hée durst not defend himselfe for when one doth see his enemie and diuers of his companions comming to assault him 13. H. 7. 10. and they all doe draw their swords and doe enuiron him and one onely doth strike him so that hée dyeth thereof the others shall be adiudged as great offendors as hee who did strike him for if the others had not béene present peraduenture hée would haue desended himselfe and haue escaped for the number of the others that were present and also readie to strike him was a great feare vnto him and an abatement of his courage and a cause to make him dispaire of his defence and so the occasion of his death And though but one man gaue the blow which was the cause of his death yet the law will adiudge it the stroke of them all giuen by the hands of that one man and to bée in each degrée as penall to thâm all as if they all had holden their hands at one time vpon that sword or staffe and giuen him his deadly wound Fitz. Cor. 309. 5 If one béeing present at the killing of a man doth nothing A will to assist a felon but would haue aided his companion if the partie that was slaine had made any resistance Fitz. Cor. 314. 350. 433. 11. H. 4. 13. hée shall thereby bee adiudged principall For all those which come in companie in any place where any assembly is gathered that an euill fact is committed bée it Homicide Robbeââe or other Trespasse euery of them shall bée adiudged a principall actor though they stand by and doe not hurt As if one come with others to doe a dissâââââ and a man is killed by another and hee therein did nothing Fitz. Cor. 314. 350. notwithstanding hee shall bee adiudged principall though hée came not to any such purpose because hée came to doe an vnlawfull act 6 If one chaunce to bée present when another is slayne In company but not consenting to a felony or when any other felonie is committed and doth not come in companie with the felons neither is of their confederacie although hée doth not make any resistance or disturbe the felon or leuie Huy and Crye yet he is
neither principall nor accessorie Fitz. Cor. 395. 14. H. 7. 31. for it is no felonie in him but finable as a Trespasse And some do hold that he shal be but amerced in that case and if he be within age hee shall haue no punishment 25. Ed. 4. 44 13. H. 7. 10. 7 If one man doe hold another in his armes or doe bind him Holding a maÌ vntill he be slaine vntill a thirdman hath killed him hée that did hold the partie slaine in his armes is principall But that holding in his armes must bee proued to bee done of a wicked and felonious intent Bracton for sometimes a man holdeth his friend in his armes of a louing mind to kéepe him from taking or doing of hurt and vpon no malicious or euill intent One thing commanded another effected 8 If one commaund another to lay hold vpon a third man and the party commaunded goeth and robbeth him if the commaunder be absent when this Robberie is done this is not Felony in him for the party to whom the commaundement was giuen excéedeth his commaundement and also the commaundement might haue béene performed without the Robberie But otherwise it is if the commaundement were to beat him Fitz. Cor. 314. and the party commaunded did kill him in the commaunders absence in this case he is accessory to the felony for it is hard to beat a man so that he shall be sure that he shall not die of that beating Councelling to rob one and another is killed 9 If A. doe commaund B. to robbe C. and hee attempteth to robbe him and D. doth defend C. and fighteth with B. that assayleth him Plo. Com. 475. and B. doth kill D. in this case A. shall bee accessorie to this murther for that B. attempting to robbe C. doth pursue the commaundement of A. and so being in the pursuit of that commaundement and resisted another thing doth chaunce viz. the death of D. therefore A. shall bee partaker of that fact and of the punisâment thereof for that his commaundement was the cause thereof Commanding to beat one and hée is killed And the same Law is Fitz. Cor. 314. 350. Pl. Com. 474. if A. doe commaund to beat C. and he doth beat him so that hee dyeth thereof A. shall bee accessorie to this murther For his commaundement was the foundation of this murther and the murther is the sequele of the commaundement and if A. be present at this beating Commaundement of burning one house and another is burned then he shall be adiudged principall And so it is if A. doe commaund B. feloniously to burne the house of C. in the night and he doth it and the same fire doth also burne the house of D. neighbour to C. in this case A. shall be accessorie as well to the burning of the house of D. as of C. for séeing the burning of the house of D. doth ensue vpon the burning of the house of C. and the first house was burned by the commaundement of A. whereunto A. was accessorie he must also be accessorie to the burning of the second house viz. of the house of D. for he that commaundeth an euill and vnlawfull act to be done shall be adiudged accessorie to all that shall ensue vpon the same euill act but not to any other distinct thing Counsell of one act and another is done But it is otherwise Pl. Com. 475. where A. doth commaund B. to burne the house of C. whom hee knoweth and hee doth burne the house of D. or doth commaund him to steale a Horse and he stealeth an Oxe or doth commaund him to steale a white Horse and hée stealeth a blacke Horse or doth commaund him to robbe another by the high way of his money and he doth rob him in his house of his plate this doth differ from the commaundement of A. and therefore these acts cannot bée drawne within the compasse of his commaundements and so hée shall bée adiudged no Accessorie to any of the foresaid offences for these bee other acts and other felonies and not any of those which A. did commaund or counsell to bée done The felonie commanded committed in another maner And yet if B. shall commit the same felonie which A. doth commaund or counsell to bée done though he doth it at another day at another time with another instrument or in another sort than A. doth commaund or counsell him to doe it A. shall bee accessorie thereunto As if A. doe counsell B. to kill C. by poysoning of him and hee doth kill him with his dagger or doth counsell him to kill C. by the high way and he killeth him in his house or doth counsell him to kill him vpon one day and he killeth him vpon another day in all these cases and the like A. shall bée accessorie to the murder for the murder is the substance and principall matter that doth ensue vpon the commandement or counsell of A. which the law doth wholly respect and not the circumstances being onely the maner and forme of the facts Pl. Com. 476. 10 If A. do commaund or counsel B. to kill C. and before he hath killed him A. doth repent him and commeth vnto B. and telleth him The felonie commaunded countermaunded that hee is sorie for his wicked counsell and persuadeth and chargeth B. that he shall not kill C. and yet after that B. doth kill C. in this case A. shall not be adiudged accessorie to the death of C. but it is the onely murder and act of B. because A. did countermaund his first counsell And the law doth adiudge no man accessorie to a Felonie before the Felonie committed but him onely whose mind and meaning is that the Felonie should bée committed at that time that it is done Pl. Com. 475. 11 If A. doe procure and counsell B. to poyson C. and to that end doth buy some venim or poyson and deliuereth it to B. who tempereth it in an apple Counselling to poison one and another is poisoned or other thing and deliuereth it to C. with intent to poison him and C. not knowing the poyson in the apple nor the intention of the said B. doth giue the sayd apple to E. to eat who eateth it and is poysoned therby and dyeth of the same poyson within few dayes after In this case notwithstanding this bée wilful murder in B. that deliuered the poysoned apple to C. though it poysoned not him who hée meant to haue poysoned but E. a straunger to whom hee pretended no hurt yet A. who procured and counselled B. to giue this poyson to C. is not accessorie to the murder of E. for that he neuer persuaded nor gaue his counsell that E. should be poisoned which assent of his the law will neuer straine further than he gaue it 12 As commaundement and ayde is in Murder and Homicide Commanding or aiding to Rape or Robberie so is it in euerie other
ought not to let him goe but the towne where the Constable dwelleth shal be charged with the kéeping of him vntill the next Gaole deliuerie Prisoner by matter of record 24 The law hath two seuerall respects to two sorts of prisoners whereof the one is prisoner by matter of Record and the other by matter in déed A prisoner by matter of Record is when one that is present in Court is committed to prison by the Court. In this case if the kéeper of the prison hath not this prisoner alwaies readie when the Court will send for him Fi. Cor. 466 or else doe shewe a reasonable cause why he cannot haue him the Court will iudge this an escape by the Kéeper without further inquitie But if the Kéeper of the prison bee in this case examined by the court of his prisoner 39 H. 6. 33. and he will say nothing the Court will adiudge it a voluntarie escape Fi. Cor. 352 25 If it be found in the Coroners Roll that one did flie to the Church Escape by a towne and no abiuration is found in the same Roll in this case the court will adiudge an escape vpon the whole towne without further presentment A man killed beeing in carrying to the Gaole And if a man be apprehended for felonie in a towne Fi. Cor. 346 and carried towards the Gaole by certain of the same towne and if he doe resist them whereupon they doe kill him in this case it shal be adiudged an escape vpon that town for in that hee was not safely carried to the Gaole attainted of felonie the king doth loose his escheats 26 When the Deciners doe present that a felon is apprehended for felony Escape by the Sherife and deliuered to the Sherife it will be adiudged an escape if they doe not declare to which Sherife he is deliuered and name him so that his rolls may bée searched and seene whether the prisoner came within the charge of the Sherife Fi. Cor. 345. and if it be not found how he came out of the Sherifs ward according to the law of the Realme an escape shal be adiudged vpon the Sherife 39. H. 6. 33. 27 It is vsed in the Kings Bench A Coroner sent to the Marshalsey to enquire c. to send a Coroner once or twice euery Terme to the Marshalsey to see all the prisoners that be committed to the marshall by matter of Record and if any of them be wanting cannot be found there to set his name in a booke and to informe the Iustices thereof and then the Court will examine the Marshall thereof and if he cannot sufficiently excuse himselfe the Court will record escapes vpon him for euery of them 21. As p. 12. 28 And touching those which bee prisoners of Record Confessing auoiding of an escape the Kéeper of the prison cannot trauerse the escape but confesse and auoyd it as in alleadging that the prison was burnt or broken by the Kings enemies or by saying that he which is supposed to be escaped is not the same prisoner which was committed to him 29 Prisoner by matter in fait is where one is prisoner by arrest onely Prisoner by matter in fait viz. by arrest whether it be by the Sherife the Constable or any other and he doth escape there the Escape shall bee presented before he shall aunswer vnto it And this presentment ought to be before the Iustices of the Kings Bench the Iustices in Eire or some other Iustices that haue authoritie to enquire thereof Before whom an escape shall be presented As it appeareth by the Statute of Westminster 1. the words whereof be these It is ordained St. 3. E. 1. 4. that nothing shall be demanded nor taken nor leuied by the sherife nor by any other for the escape of any theefe or felon vntill it shal be adiudged by the Iustices in Eire And he that shall doe otherwise shall restore to him that paid it so much as he hath receiued and to the King as much And likewise by the Statute of 31. Ed. 3. St. 31. E. 3. 14. it is prouided That the Escape of felons and Clerkes conuict shall bee adiudged by the Iustices and by their viewe leuied And though the foresaid Statute of Westminster the first doth not make mention of any but of Iustices in Eire 21 As p. 12. 27. As p. 1. yet it doth also extend to the Iustices of the Kings Bench because the Kings Bench is in Eire and higher then an Eire for if the Iustices in Eire doe sit in a Countie and the Iustices of the Kings Bench come thither the Eire shall cease Iu. of peace and Coroner shall enquire of escapes 30 And by the Statute of 1. R. 3. St. 1. R. 3. 3. Iustices of Peace may enquire of all manner of Escapes of euery person arrested and imprisoned for felonie And by the Statute of 3. H. 7. St. 3. H. 7. 1. They may enquire of the escape of any that hath committed murder and make certificat thereof into the Kings Bench. And also by the said Statute of 3. H. 7. the Coroner vpon the viewe of the dead body may enquire of the escape of the murderer for if he doe commit the murder in the day and escape the towne shal be amerced And also the Coroner shall deliuer his Inquisition therof to the Iustices at the next Gaole deliuerie of the same Countie Trauerse to a presentment of an escape 31 Vpon an escape for the which no fine is to be paied Fi. Cor. 291 328. 346. but an Amerciament he or they which be charged therewith shal haue no Trauerse to the presentment thereof Quia de minimis non curat lex Escapes inquirable in Leetes and Turnes 32 Although Escapes of felons be at this day inquirable in Léetes and Sherifes Turnes yet it shall not be leuied vntill it be adiudged before the Iustices for that should bee contrarie to the foresaid Statute of Westminster 1. The penalties of escapes 33 The penaltie of him which doth voluntarily suffer one arrested for felonie to escape is the forfeiture of all that he hath because it is felonie The penaltie of him which doth suffer a negligent escape of a felon is to pay a fine The penaltie for the escape of him which was neuer arrested is but an amerciament And if any doe suffer him that is attainted of felonie negligently to escape he shall pay to the King for a fine an hundred pounds And if the partie escaping were but indicted and not attainted then he shall paie to the King for a fine a hundred shillings If one which is not indicted nor taken with the manner nor apprehended at the suit of the partie 42. As p. 5. but onely taken by a straunger for susption of felonie do escape there shal no penaltie nor punishment follow thereof But yet if after the same escape he
supposed is and was conuersant within the countie whereof the indictment or appeale maketh mention but the like proces shal be made against such indicted or appealed person as hath béene vsed 62 And because after the making of the sayd Statute of Anno 8. H. 6. some intending to defraud the sayd Statute did sue to remooue such appeales and indictments out of the hands of the Iustices or Commissioners aforesayd into the Kings bench and elsewhere by Certiorari or otherwise vnknowne to the partie so indicted and therupon sued the proces vsed at the common law before the making of the said Statute in the Kings Bench and elsewhere after the remoouing therof to the great impouerishment of diuers the kings subiects Therefore by the Statute made Anno 10. H. 6. St. 10. H. 6. 6 it was enacted Proces vpon an indictment or appeale remoued into the K. bench That if any such indictments taken before any Iustices of peace or any other hauing power to take such indictments or appeales or other Iustices or Commissioners in any county franchise or libertie of England shal be remoued into the Kings Bench or elsewhere by Certiorari or otherwise then after such remoouing before any Exigent awarded vpoÌ any such indictment or appeal in form aforesaid taken immediatly after the first writ of Capias vpon euery such indictment or appeale awarded and returned another writ of Capias shall bee awarded directed to the Sherife of the countie wherof he that is indicted or appealed is or was supposed to be conuersant by the same indictment or appeale returnable in the K. Bench at a certaine day contayning the space of thrée moneths from the date of the said last writ of Capias according to the maner and forme that the I. of peace and others ought to haue done before such remouing And if any Exigent be awarded vpon any such indictment or appeale after such remouing against the forme aforesaid or any outlawrie thereupon pronounced as wel the same Exigent as the outlawrie and euery of them shal be void In the Appeale he must be supposed to be of a forrein County 63 The foresaid stat of 8. H. 6. doth not take place St. 8. H. 5. 10. but where by the Appeal or by the Indictment it is precisely supposed that the defendant was dwelling in a forrein county for if he be supposed to be dwelling there by an Alià s dictê° it is out of the compasse of the stat 1. E. 4. 1. As in an appeal or indictment in the county of Middlesex against A.B. in comitatu tuo yeoman alias dictum A.B. de C. in comitatu Sussex yeoman Because that which is supposed by the Alià s dictê° is not trauersable nor materiall And likewise it is in an appeale or indictment against I. of S. in comitatu H. nuper de L. in comitatu K. nuper de R. in comÌ T. An appellée dwelling in no place certaine 64 If a man be appealed to be dwelling in no place certaine the day of the Appeale commenced but in this maner Fitz. Proces 192. viz. nuper de S. in comitatÌ L. and nuper de B. in comitÌ T. then proces shal be awarded into all the counties whereof he is so supposed to be of late dwelling Proces into a County Palantine 65 The foresaid stat of 8. H. 6. hath ordained That after the first Capias St. 8. H. 6. 10 another Capias shal be awarded to the Sherife of the county whereof he which is so indicted is or was supposed to be dwelling by the same indictment And therefore if an appeale or indictment be exhibited against one in the countie of M. naming him of D. in the county of Chester or of some other place which is a countie Palantine In this case no proces can be awarded vpon this Stat. which may be directed to the Sherife according to the words of the Statute But proces shal be awarded vpon this statute to the prince or his lieutenant 19. H. 6. 2 31. H. 6. 11. for it is in like mischiefe and the statute is generall in all the Realme which doth bind as well those which be of a Countie Palantine as others But if they of the Countie Palantine will not serue and returne the writ directed to them vpon this statute then without further delay the Exigent shall be awarded otherwise the party should be infinitly delaied Proces against principal accessory 66 The foresaid Proces specified in the before rehearsed stat of 8. H. 6. shal extend as well to accessories as to principals sauing that the Exigent as to the accessories shall be staied vntill the principals be outlawed And that by the Statute of West 1. the words whereof be these St. 3. E. 1. 14 Because men haue vsed in some counties to outlaw such persons as be appealed of commandement force aide or escape within the same terme that they do outlaw him which is appealed of the fact it is ordained that none shal be outlawed for an appeale of commandement force ayd or receit vntill he that is appealed of the déed be attainted so that one law shal be thereof through the whole Realme But the appellant shall not let to attach his appeale at the next countie against them as well as against the appellées of the déed But the Exigent against the Accessorie shal stay vntill the appellée of the déed be attainted by outlawrie or otherwise And Britton Britton doth affirme That as soone as the principals be outlawed the Exigent shal be awarded against the accessories St. 3. E. 1. 14 67 The before rehearsed statute of West 1. séemeth onely to extend to Appeales commenced by bill The stat of W. 1. exteÌdeth onely to Appeals commenced by bil for in an Appeale commenced by writ it appeareth not vntill the declaration made thereupon that there bée any accessories in the Appeale but for any thing contained in the writ all doe appeare to be principals 43. Ed. 3. 17. and for that cause the Exigent is awarded against them all at one time And therefore the plaintife must be aduised how he doth pray the Exigent and against whom for if he do pray the Exigent against them all he is therby concluded after to count against any of them as accessories for the law intendeth that he must take knowledge which were accessories and which not And therefore in that case he should haue staid the demaunding of the Exigent against them vntill the principals had béene attainted And that is the difference betwéene the principals and the accessories as touching the time of the awarding of the Exigent 68 If an Appeale be brought against diuers and one doth appeare plead In Appeale one doth appeare and another makes default yet proces shall be continued against the residue But if hee which appeareth doth plead in abatement of the Appeale or matter in barre which proueth that the Appeale
any person before made béeing by force of the foresaid statute of 11. H. 4. in shirifes and bailifes of Franchises seuerall great extortions and oppressions were done in diuers Counties of this Realme by subtilty and vntrue demeanor of shirifes and their ministers to many persons by making and returning at euery Sessions holden within the said Counties for the body of the shire names of such persons as for the singular gaine of the said shirifes and bailifes would be wilfully forsworne by the sinister labour of the said shirifes and their ministers By reason whereof by their couin and falsehood many true and substantiall persons were diuers times wrongfully indicted of Murthers Felonies and other misbehauiours to the vtter losse of their liues goods and lands and sometime also by the labor of the said shirifs great Felonies and Murthers were concealed and not presented by the said persons partially returned by the same shirifs or their ministers to the intent to compell the offendors to make fines and giue rewards to the said Shirifes and their ministers For the preuention of which enormities by a stat made Anno 3. H. 8. it was established St. 3. H. 8. 12 That all panels to be returned which bée not at the suit of any party Panels for indictments reformed by the Iustices that shall be made and put in by euery shirife and their ministers before any I. of Gaole deliuery or I. of Peace whereof one to be of the Quorum in their open Sessions to inquire for the king shal be reformed by putting to and taking out of the names of the persons which so be impanelled by euery shirife and their ministers by the discretion of the same Iustices before whom such panels shall be returned And the same Iustice and Iustices shall commaund euery shirife and their ministers in his absence to put other persons in the same panels by their discretions And the same panels so reformed by the said Iustices be good and lawfull And if any shirife or any of their ministers at any time do not returne the same panels so reformed then euery such shirife or minister so offending for euery such offence shall forfeit xx l. the one halfe to the king and the other to him or them that will sue for the same by action of Debt at the common law or Bill c. wherin no W.E. or P. shal be allowed and the kings pardon shall be no barre against the party or parties that shall sue the same 9 It is to be thought that by force of the statutes before rehearsed sufficient honest and indifferent Iurors were returned by the shirifes of Counties or that the Panels by them returned were reformed by the Iustices so that if any defect were committed in Indictments or in concealing of offences or offendors then the same was in the Iury which were charged for the body of the Shire to make inquirie for the searching forth of the truth whereof and for the punishment of the said offendors according to their demerites by a statute made Anno 3. H. 7. it was ordained St. 3. H. 7. 1 That the Iustices of peace of euery Shire of this Realme for the time being may doe to take by their discretion an enquest Enquest to inquire of concealments whereof euery man shall haue Landes and Tenements to the yearely value of forty shillings at the least to inquire of the concealements of other Enquests taken before them and before other of such matters and offences as are to bée inquired and presented before Iustices of Peace whereof complaint shall be made by Bill or Bils as well within Franchise as without and if any such concealement be found of any Enquest had or made within the yeare after the same concealement euery person of the same Enquest shall bée amerced for the same concealements by the discretion of the same Iustices of Peace the said amerciaments to bée assessed in plene Sessions 10 For as much as seuerall persons vpon great grounds of vehement suspitions as well of high Treasons petit Treasons and misprision of Treason as of Murthers were many times sent for from diuers Shires and places of this Realme and other the Kings Dominions to the Kings great charges to be examined before the Kings Councell vpon their offences to the intent that conuiction or declaration of such persons should spéedily ensue as the merits of their cases should require And albeit that after great trauaile taken in the examination of such persons it appeared to the said Councell by confession witnesse or vehement suspect that such persons were rather guilty of such offences whereof they were examined then otherwise yet neuerthelesse such offendors so examined by the course of the common Lawes of this Realme must be indicted within the Shires or places where they committed their offences and also tried by the inhabitants and fréeholders of such Shires and places although by their confessions or by sufficient witnes their offences were certainely knowne to the Kings Councell By reason whereof besides the trauaile of the Kings Counsell the King was often put to great charges in remaunding such persons to the countries where they offended there to bée indicted and tried of their offences And sometimes the inhabitants and fréeholders of the Shires or places where such offences were done were compelled to appeare out of their shires or places for such causes to their great charges for the triall or declaration of such offences And sometime by occasion of the charges for remaunding such offendors to be indicted and tryed by the course of the common Law such offendors did lye still in prison and were forgotten whereby many times by the helpe of their confederats they escaped vnpunished to the great courage and euill example of euill doers For the reformation whereof by a statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 23. That if any person or persons being examined before the Kings Councell or thrée of them vpon any manner of Treasons misprision of Treasons or Murthers doe confesse any such offences or that the said Councell or thrée of them vpon such examination shall thinke any person so examined to be vehemently suspected of any Treason misprision of Treason or Murther then in euery such case by the Kings commaundement his Maiesties Commission of Oyer and Terminer vnder his great Seale shal be made by the Chancellor of England to such persons Indictments and trials where the king will and to such Shires and places as shall bée named and appointed by the Kings Highnesse for the spéedie triall conuiction or deliuerance of such offendors Which Commissioners shall haue authoritie to inquire heare and determine all such Treasons misprisions of Treasons and Murthers within the Shires and places limitted by their Commission by such good and lawfull persons as shal be returned before them by the Shirife or his ministers or any other hauing power to returne Writs and Proces for that
he may plead the same acquitall in bar for that no mans life shall be twice put in ieopardie of triall for one offence and one man can be but once slaine But it is otherwise in an indictment of robberie for a man may be robbed by one person at seuerall times and in seueral counties and so the acquitall of one of the same robberies will not serue him for the other And therfore if one be indicted of robbery in one county the defendant cannot plead 4. H. 7. 5. that he was indicted of the same robberie in another county and acquited for no man can be indicted or arraigned for a robbery but in the couÌty where the same robbery was committed and though the def doth surmise that it is but one and the same felony yet that cannot be tried for the county where the first indictment was taken and the county where the last was taken cannot ioyne to make triall thereof But some do affirme that it is a good plea in an Appeale of robbery for by the Appeale the plaintif is to recouer his goods by the common law and so he is not vpon an indictment Indictment of rape A man was indicted in the K. bench of a rape and robbery committed in the county of C. and he pleaded 41. As p. 9. that he was before indicted of the same rape before the Iust of Assise in the county of C. and arraigned and acquited of the same fact And for that it was of the same fact he was discharged Arraigned vpon an insufficient indictment or appeale 42 It is not a sufficient plea in bar in an Appeale or Indictment of felony to plead that he was at another time acquited if there were not sufficient matter of felony in that apeale or indictment whereof he was acquited Co. li. 4. 45. Fitz. Cor. 414. for if there were not sufficient matter of felony in the first appeale or indictment and the same partie is againe indicted of new by an indictment which doth comprehend sufficient matter of felony he shal be againe arraigned because in that case he neuer put his life in ieopardy For when an offendor is discharged vpon an insufficient indictment the law hath not had his end neither was the life of the party in the iudgement of law at any time in ieopardie And the law will not suffer great offences to go vnpunished Acquit vpon an erronious appeale 43 If one be acquited vpon an erronious appeale which acquitall is reuersed by errour he shall now be arraigned at the K. suit vpon an indictment 9. H. 5. 2. for that by the reuersall he is become in that state as if he had not béene acquited But vntill that reuersal be made it shal be a good plea to plead Fitz. Cor. 444. another time acquit And it séemeth that the same is when the errour is in Proces that is not materiall which the defendant doth appeare and answer to the originall writ But the def shal not any more make answer to the appellant although the first acquitall be reuersed for so the appellant might delude the court infinitly and the defendant should neuer be deliuered 21. H. 6. 20 44 If one do bring an Appeale which hath no cause to maintaine the same Acquit vpon an Appeale brought by one that hath no right As if one which is not the lawfull wife or the next heire of him that was slain do bring an Appeale and the defendant doth take no aduantage thereof but pleadeth not guiltie and is acquit yet this acquitall will not serue to barre the lawfull wife or next heire of the dead when they shal bring their Appeale neither in this case the king shal be barred to arraigne him vpon a indictment or vpon a new appeale when the partie plaintife is nonsuit therein 16. Ed. 4. 11. 8. H. 5. 6. 45 If one bée arraigned vpon an Indictment at the Kings suit One arraigned vpon an indictment before the parties appeale be determined and acquited where by the order of law the King ought to haue tarried vntill the Appeale which was depending had béen determined yet this is no errour but the foresayd plea viz. another time acquit of the same felonie shall serue him that doth plead it Fitz. Cor. 375. 46 If a man be indicted of felony and arraigned at the Kings suit Acquit by battell in an Appeale it is no plea for him to say that at another time he was acquited of the same felony in an Appeale if so be that the same acquitall were not by enquest but by battell And the reason is because tryall by battell lyeth not against the King and therefore it is not méet that he should be bound by that tryall whereunto hée neither was Bracton nor could be partie And yet Bracton sayth that if the appellée in an Appeale doth make his choyce to defend himselfe by his bodie and all things be readie which doe ioyne the Appeale battell shal be presently waged and if in that case he that is appealed by diuers of one fact and of one wound doe defend himselfe against one of them hée shall goe acquit against all the residue of the appellants And so it is at the Kings suit for by this meanes he doth purge his innocencie against them all as much as iâ hée had put himselfe vpon the countrey and the countrey had cléerely acquited him Ideo quaere 47 Because by the common law A murderer indicted and arraigned at the K. suit within a yeare and a day after any murder or homicide had beene done the felonie should not haue béene determined at the kings suit for sauing of the parties Appeale wherein the partie was oft-times slow and also agréed with and by the end of the yeare all was forgotten And also for that hée which wil sue an Appeale must sue it in proper person which suit is long and costly and maketh the appellant diuers times weary thereof which were occasions of murder and manslaughter for the reformation whereof by a statute made Anno 3. H. 7. St. 3. H. 7. 1. it was enacted That if any man be slaine or murdered and the slaiers murderers abettors maintainers and comforters of the same bée indicted therefore the same slayers and murderers and all other accessories of the same shal be arraigned determined of the same felony murder at any time at the K. suit within the yeare after the same felonie murder done and not tary the yere day for any appeal to be taken for the same felony or murder And if it happeÌ any person so named as principall or accessorie to be acquited of such murder at the Kings suit within the yeare and day then the Iustices before whom he is acquited shall not suffer him to go at large but either shall remit him againe to prison or else let him to baile after their discretion till the yeare and day
but only they that were taken for the death of a man by the coÌmandement 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. 1â 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 amerciameÌt 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 preseÌtly 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 beÌch for the preuention whereof it was enacted by a statute made anÌ 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 coÌmandement and absolute vntil the foresaid Stat. of anÌ 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 anÌ 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
any thing to say now that is true séeing he would not speake it at that time when hée might haue béene heard But in the foresaid cases if the approuer can shew any sufficient matter which doth restore him to the lawe 21. Ed. 3. 17 as the Kings pardon and such like then the appellée shall answer to the approuer S. Appeales 92. An Appellée cannot appeale others 11 If he which is appealed by an approuer will confesse the appeale and pray that he may become an approuer and appeale others hée shall not bée receiued thereunto for seuerall causes one is for that he is appealed of felonie and not indicted of felonie and in an appeale there lieth no approuement another cause is for that if his approuement should be of the same felonie he should thereby falsifie the appeale of the first approuer in that he did not at the first discouer all his companions being sworne thereunto And a third cause is Fi. Cor. 113 for then by that meanes approuements would be infinite and also the appellée is in a sort out of the lawe for that the approuer hath deraigned an appeale against him 21. Ed 3. 18. Fi. Cor. 231 12 It is a good exception for the appellée to obiect against the approuer Approuer not in prison for felony or at libertie that the approuer is not in prison for any felonie or treason but for debt or trespasse or some other offence or to say that the approuer is not in prison but at large for he cannot be an approuer vnlesse he be first indicted of felonie and doth confesse it before a Iudge and then become an approuer Bracton 13 It is a good plea as some doe affirme for him that is appealed The appelleé an honest and credible man to say that he is a lawfull man and in the franke pledge and in the Assise of our soueraigne Lord the King and that hée hath a Lord which will be his pledge And if that be trauersed and found for the appellée he shall be discharged thereby Sed quaere Fi. Cor. 322 14 In an appeale by an approuer the appellée may pleade General plees in Barre of the appeale that the same approuer is a priest not of perfect memorie deafe dumbe a lazar a naturall foole a woman a man aboue thréescore and tenne yéeres of age or within age or that he is mayhemed by some other and not by the appellée for that in these cases the approuer cannot deraigne or wage battell with him S. Appeales 93. 15 In diuers cases if the appellant doe surcease to prosecute his appeale Where the King may pursue an appeale begunne the king may pursue it for the appellant may by seuerall meanes leaue off to prosecute his appeale 3. H. 6. 50. as by Non-suite Release Retraxit or a woman by taking a husband during the suite of appeale for in all these Cases the appeale doth cease by the act of the partie therefore in which case soeuer that Cesser is after declaration in the appeale the Defendant shall not goe at libertie but shall be arraigned at the Kings suite vpon the same declaration for that it doth appeare there is a felony committed and the same is not yet tried And the same Lawe is if the appeale doe cease by the act of God as if the appellant doe die 21. Ed. 3. 18 Fit Cor. 369 Or if it cease by the act of the Lawe as if the appellant after his appeale made be hanged Or if the appellant doe take the priuiledge of his Cleargie for an appeale by an approuer is a great presumption against the Defendant that he is guilty of the offence whereof he is appealed and that is for the great punishment which the appellant is to suffer if he at any time doe faile of his appeale viz. death And an appeale doth worke a greater presumption against the Defendant than an Indictment doth 4. Ed. 4. 10 for that it is vsed if a man be appealed and indicted of one offence and the Plaintife in the appeale after declaration is Non-suite the Defendant shall be arraigned at the Kings sute vpon the declaration in the appeale and not vpon the Indictment But this presumption riseth where the appellant hath appeared to his suite 8. Ed. 4 25. and declared for vntill that time it carieth not with it any presumption Because any man may sue a Writte of appeale out of the Chauncerie in a strangers name and finde pledges to prosecute it and cause the Writ to be deliuered to the Shirife of Record that stranger not knowing thereof in which Case it shall not be saide that strangers suite vntill he hath appeared in proper person thereunto and declared 7. H. 7. 5. Fi. Cor. 384 for vntill that time Non-suite in the appeale is not peremptorie to the stranger Neither shall the Defendant be arraigned at the Kings suite by this Non-suite any more than if hée had not béene Non-suite But in that Case if a stranger doe bring a new appeale against the Defendant the Defendant shall aunswere him as hée should haue done if no such Non-suite had béene But the Lawe is otherwise in an appeale commenced by Bill for that suite of necessitie must be made by the party himselfe in his owne proper person 22. As p. 97 and his apparance must be recorded by the Shirife and Coroners and the yéere day and place expressed where and when the felonie was committed and who were principalles in the same felonie and who were accessories And so in an appeale by Writ the Plaintifes Non-suite before declaration doth giue the King no aduantage against the Defendant but in an appeale commenced by Bill before the Shirife and Coroners or in an appeale by an approuer it is otherwise for in such an appeale all the certaintie of the felonie is declared and comprised 2 3. P. M. Dy 121. In an appeale of murder against thrée if one of them pleade Not guiltie ready to defend himselfe by his body and so wageth battaile vpon which plea the Plaintife demurreth in lawe which demurrer is adiudged against him in this Case the same appellée shall be arraigned at the Kings suite for that the felonie is not yet tried nor he acquit thereof And if one of the other appellées doe pleade Not guiltie and that the Plaintife doth demurre thereupon and it is adiudged a good plea and the same appellée is acquit against the appellant yet he shall be arraigned at the Kings suite of the same murder S. Appeales 96. The Appellants release to the Appellée 16 If the Defendant in an appeale do pleade a Release inrolled Fit Cor. 12 and of record made vnto him by the appellant before the appeale commenced he shall be presently deliuered But if it be made after the appeale commenced the the Court will intend that it is of purpose to defraud the King and therefore in
Peace of the same Countie where such offendors shall happen to be shall vpon his or their corporall Oath before the Iustices of the Peace in the open Quarter Sessions of the same Countie where such offendors shall then bée or at the Assises and Gaole Deliuerie of the same Countie before the Iustices of the same Assises and Gaole Deliuerie abiure the Realme of England and all other the Quéenes Dominions for euer vnlesse her Maiestie shall licence the parties to returne and thereupon shall depart out of the Realme at such Hauen or Port and within such time as shall in that behalfe be assigned and appointed by the said Iustices before whom such abiuration shal be made vnlesse the same offendor bée letted or staied by such lawfull and reasonable meanes or causes as by the common lawes of this Realme are permitted and allowed in cases of abiuration for felonie And in such cases of let or stay then within such reasonable and conuenient time after as the common law requireh in case of abiuration for felony as is aforesaid And the Iustices of peace before whom any such abiuration shall happen to be made as is aforesaid shall cause the same presently to be entered of Record before them and shall certifie the same to the Iustices of Assises and Gaole deliuerie of the said Countie at the next Assises or Gaole deliuerie to be holden in the same countie And if any such offendor which by the tenour and intent of this act is to be abiured as is aforesaid shall refuse to make such abiuration as is aforesaid or after such abiuration made shal not go to such hauen and within such time as is before appointed from thence depart out of this Realme according to this present act or after such his departure shall returne or come againe into any the Qu. Realmes or Dominions without her speciall licence in that behalfe first had and obtained Then in euery such case the person so offending shal be abiudged a felon and suffer as in case of felonie without benefit of Clergie If any person or persons that shal at any time offend against this act shall before he or they be so warned or required to make abiuration according to the tenour of this act repaire to some parish Church on some sonday or other festiuall day and then and there heare diuine seruice and at Seruice time before the Sermon or reading of the gospel make publike and open submission and declaration of his and their conformity to her Maiesties lawes and statutes as in this act is hereafter declared appointed That then the same offendor shall thereupon be cléerely discharged of and from all the penalties and punishments inflicted or imposed by this act for any of the offences aforesaid Prouided that no Popish Recusant or seme couert shal be compelled to abiure by vertue of this act Prouided also that euery person that shall abiure by force of this act or refuse to abiure being thereunto required as is aforesaid shal forfeit and loose to her Maiestie all his goods and cattels and all his lands tenements and hereditaments during his life only and no longer But his wife shal not loose her dower neither shall his blood bée corrupt S. Felonie by stat 9. 17 By a statute made anÌ 35. El. 2. St 35. El. 2. intituled an act for the restraining of Popish Recusants to some certaine place of abode it is ordained Popish Recusants shall abiure the Realme That Recusants not conforming themselues to the obedience of the lawes of this realme in comming to the Church to heare diuine seruice which shall not vpon the request of two Iustices of peace or Coroner of the same countie abiure the realm and depart for the same and not returne without the Queenes licence shal be adiudged felons and suffer and loose as in case of felonie without benefit of Clergie S. Fel. by St. 10. St. 3. E. 1. 10 18 By the stat of West 1. made anÌ 3. E. 1. it is enacted Abiuration of a Trespasser That he which committeth trespasse in parkes or ponds shall abiure if hee cannot find suretie no more to doe the like offence But that abiuration is not for felonie neither shal he forfeit his lands or goods Pleading not guiltie HAuing made mention of one of the pleas which a prisoner brought to the barre to be arraigned of Treason or Felonie doth plead viz. of the Confession of the offence and shewed how many sorts of Confessions of felonie the law doth take notice of by what meanes she doth procéed against the parties confessing I am now to treat of a second or one other plea that the prisoner vpon his arraignment doth plead in his own defence which is the plea of Not guiltie For when a prisoner by an appeale or an Inditement is charged with treason or felonie he may estrange himselfe from the offence if he will and ioyne the same issue which the defendant oft times doth in an action of trespasse some other personall actions viz. he may plead and take for his issue Not guiltie This plea of not guiltie is the most common and vsual plea Pleading not guilty the most common plea. that he which is arraigned of treason or felonie hath to plead vpon an inditement or an appeale and it is the plea whereunto euery person that is arraigned shall be enforced vnlesse it be in speciall cases viz. where he hath matter of Iustification or matter in Law to plead And this plea of Not guiltie doth tend to the fact that is to the felony and therefore it receiueth great fauour in Law 7. Ed. 4. 15. 4. H. 6. 15 4. H. 7. 5. 10. H. 4. 4. 9. H. 4. 2. for the Law doth allow this plea to him who is arraigned after he hath pleaded in abatement or barre of the appeale or inditement so that his barre doe not comprehend such matter as doth confesse the felonie as a Release of the appellant or the Kings pardoÌ And that plea he shall haue also though one of his pleas were matter in law for though those pleas doe require diuers trials 29. Ed. 3. 91. 22. E. 4. 39. 27. As p. 3 14. Ed. 4. 7 yet in fauour of life hee shall haue both those pleas as well as he shall haue when he doth plead matter triable by the Bishop or by Record viz. and moreouer not guiltie Which pleas he shall haue notwithstanding he doe not conclude moreouer not guiltie that is to say Pleading not guilty after other pleas he shall come time enough to plead not guiltie after the matter triable by the Bishop or by Record is found against him And the manner of pleading in all those cases is to plead his plea and to pray allowance thereof and ouer to the felonie not guiltie Vpon the plea of not guilty no couÌcel allowed 2 Vpon this plea of onely not guiltie the partie indited shall not haue couÌcell
learned in the law to plead for him or to say any thing in his behalfe in the same plea vnlesse it be in an appeale which is the suit of the partie for when the offendor is put to answer to an inditement of treason or felonie he must answer it in proper person and not by atturney or councel learned For this plea of Not guiltie doth tend to the fact that which the party himselfe doth best know and therefore hee can best make answer vnto it And if his councell learned should plead his plea for him and defend him it may be that they would be so couert in their spéeches and so shadow the matter with words and so attenuate the proofs and euidence that it would be hard or long to haue the truth appeare Also if the partie himselfe defend it peraduenture his conscience will pricke him to vtter the truth or his countenance or gesture wil shew some tokens thereof 9. Ed. 4. 2. or by his simple spéeches somewhat may be drawne from him to bolt out the veritie of the cause which would not be wonne of men learned in the law who indeauour to speake prouidently and artificially which be the causes that the offendor shall answer in his owne person and not by councell learned And yet if the plea of the partie indited be such that it doth excéed his learning and knowledge to answer 1. H. 7. 15 12. El. Dyer 296. 7. H. 4. 36. and plead vnto Where councell shal be allowed Informing the Court of a default then hee shall haue learned councel assigned vnto him though it be against the King And one that is in the Court at the time of the inditement or arraignment of a prisoner may as Amicus Curiae informe the Court that there is a defect in the inditement to the benefit of the prisoner ⧠Triall by Battell THere is an auncient triall of the plea of Not guiltie by the common law much vsed in former ages which is triall by combate viz. by Battell which triall the defendant in an Appeale of felonie may choose and combate with the Appellant for the triall if he be guiltie or not of the felonie whereof the appellant hath commenced his appeale against him And if the Appellée hath so good successe in that battell that he doth therein vanquish the appellant he shall barre him of his appeale for euer And though this triall by battell is not so much in vse as it was in the raignes of king Edward the 3. king Richard the 2. and king Henry the 4. yet is it at this day lawfull Triall by battel or by the countrey and not so much disused but it may be put in practise in an appeale if the defendant will and that there be no lawfull counter-plea thereof Or else the defendant in an appeale may at his choyce plead not guiltie and referre himselfe to be tried by the countrie This triall in an appeale by battell shall be betwéene the appellant and the appellée themselues in their own persons and not by Champions as it is in a writ of right And this triall by battell is an auncient law of this realme 37. H. 6. 3 it is also put in practise and allowed by the ciuill law which it is thought the Romans learned and embraced euer since that renowned combate that was fought in the time of Tullus Hostilius third king of the Romans and of Metius Suffetius dictator of the Albans Tit. Liu. l. 1 betwéene the thrée brethren Horatij Romans and the thrée brethren Curiatij Albans by the consent and in the presence of both the Captaines and Armies for the perpetuall gouernment of both the kingdomes wherein M. Horatius vanquished and slew in the field the thrée Curiatij who presently before had killed his other two brethren and by that meanes obtained to the Romans the perpetuall gouernment of the citie and countrey of the Albans and deliuered his owne nation from continuall seruitude The forme of trial by battel 2 The order and forme of triall by Battell is this when the defendant in an appeale hath pleaded not guiltie ready to defend the same by his body hee must cast his gauntlet into the court and if the Pl wil reioyne to the Battel hée must take vp the Gauntlet Fit Cor. 385 But if the Plaintife will counterplead the Battell then hée must let the Gauntlet lie and then the Defendant may demurre in law thereupon if he do let his gauntlet lie If it be in an appeale of death and that the appellant and the appellée doe ioyne in wager of Battell the Appellant shall rehearse his appeale word by word as he did at the first and the appellée shall likewise make his defence as he did at the first and then the defendant shall wage the battel in this manner 17. E. 3. 2. 17. Ass p. 1 9. H. 4. 4 viz. Thomas the appellée shall with his left hand take I. the appellant by the right hand and lay his owne right hand vpon a booke and say thus Heare you this you man which doe call your selfe Iohn by your name of Baptisme that I man which doe call my selfe Thomas by name of Baptisme such a day and such an year did not kill William your father by name as you doe surmise neither am I guiltie of this felonie so helpe me God and shall kisse the booke and this I will defend against you by my bodie as this Court will award And after I. the Appellant shall with his left hand take T. the appellée by the right hand and lay his owne right hand vpon the Booke and say in this manner Heare you this you man which by name of Baptisme doe call your selfe Thomas that you furiously such a day and in such a yeare did kill William by name my Father so helpe me God and shall kisse the Booke and this I will iustifie against you by my bodie as this Court will award And the Court shall appoint them a day to make their combate and the appellée shall put in pledges to the Court to performe the battell and to defend himselfe and the plaintife shall put in pledges to deraigne the battell at the day assigned And the Appellant shall goe at libertie and the appellée shall bée kept in prison at ease and haue sufficient meat and drinke And the Marshall shall apparell the appellant and the appellée both alike at their owne costes the night before the combate shall be fought to the ende that they may bee in the field the next morning ready to performe the combate by the sunne rising And the appellées head shall be polled but not the appellants and the Marshall shall bring them attired into the field ready to performe the Battell Which combate shall be tried before the Iustices 19. H. 6. 15 Br. Battel 16 Bracton de cor ca. 21 who shall cause Proclamation to bée made when they be set and the Appellant and the
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
of the same shall for any the offences aforesaid committed within the realme of Scotland or for being accessory to the same forfeit any lands tenements or hereditaments either frée copie or customary hold neither shall the blood of such offendor be corrupted nor the wife lose her dower yet neuerthelesse the said offendors shall forf to his Ma. his heires and successors their goods chattels and credits whatsoeuer A like Act made in Scotland 11 And forasmuch as it is intended St. 4. Iac. 1. that an Act like vnto this shal be ordained in the realme of Scotland for the tryall and punishment of offendors being his Ma. natural born subiects of the same realm which shal commit any of the offences aforesaid within the realme of England or the dominions therof and shall after escape or returne backe into Scotland therefore be it enacted that vpon complaint made by any of his Ma. subiects of the realm of England to any of the Iust of Assise Commissioners of Oyer and Terminer or gaole deliuerie or Iust of the peace within the precincts of their seueral commissions respectiuely being naturall borne subiects within the realme of England concerning any such offences committed by any his subiects of the realme of Scotland within the realme of England in case where the offendor is returned into the realm of Scotland as aforesaid the said Iust or commissioner shal haue full power and authoritie Binding the complainant or witnesses to giue euidence in Scotland to bind ouer as well the said party complaining or prosecuting as any witnesses that he shall desire to produce so as their reasonable charges be first tendred vnto them by recognisance in a conuenient sum to his Maiesties vse to prosecute and giue in euidence within the realme of Scotland wherein if default shal be made and the same proued by certificat or otherwise before the Lord Treasorer Chauncellor and Barons of the Exchequer or any of them in the Exchequer chamber and a decrée there made that the same recognisance shall stand forfeited then the court of Exchequer shall thereupon procéed for the leuying of the debt of the said recognisance as if it were adiudged forfeited by the course of the common law St. 4. Iac. 1. 12 On the other part Scottish men repairing into England to giue euidence shal be frée froÌ arresting euery of his Maiesties subiects of the realme of Scotland either party grieued or witnesse which shall prosecute in any the cases aforesaid within the realme of England and therby shall haue occasion to make his repaire hither either voluntarie or by the like bond as is before expressed on the part of the realme of England shall haue and enioy priuiledge and immunitie from all maner of arrests concerning all offences or other causes as well capitall as others committed done or occasioned before he shall come into England as aforesaid except treason or wilfull murder so long as he or they shal be necessarily going comming or abiding within the said realme of England for the prosecution of the sayd offendors St. 4. Iac. 1. 13 Prouided neuerthelesse The offence shal be laid where it is done that euery such offence so committed as aforesaid shal be laid and alledged in the indictment or other declaration to be done and committed in the realm of Scotland according to the truth of the fact and not in the counties where the trial is limited to be had and made as aforesaid any thing in this Act formerly contained to the contrarie notwithstanding St. 4. Iac. 1. 14 Prouided He that is once tried shall not be eftsoones called into question that if any of his Maiesties subiects of the realme of Scotland shall bee proceeded with and tryed in the Realme of Scotland vpon the prosecution of any party grieued and vpon euidence in open court for any offence done or committed within the Realme of England that no such person shal be eftsoons called into questioÌ or procéeded with for the same fact within the realme of England but that it shal be lawfull for euery such persons to plead and alledge for himselfe vpon his arraignment that he was formerly lawfully acquited conuicted or attainted of the same offence within the realme of Scotland and that thereupon all further procéeding shal stay vntill the Court haue sufficiently informed themselues by certificat from the realme of Scotland or by any other good wayes and meanes of the truth of the said allegations which if they shall find true the said person shal be forthwith discharged of all further impeachment or procéeding St. 4. Iac. 1. 15 No naturall borne subiect of the Realme of England None shal be sent out of England to receiue his triall or the Dominions of the same shall for any High Treason Misprision or concealement of High treason Petit treason or any other whatsoeuer offence or cause committed within Scotland be sent out of England where he is apprehended to receiue his triall vntill such time as both Realmes shall be made one in lawes and gouernment St. 4. Iac. 1. 16 At all such tryals the Iurors then and there sworne The Iurors shall allow of or reiect the witnesses or the greater part of them who in respect of the great trust and charge which must now be layd vpon them are by vertue of this Act as before appeareth to be persons of better conditions and qualitie than the law required heretofore for Iurors in tryal of like offences shall haue in their power and election according to their consciences and discretion vpon their othes to receiue and admit onely such sufficient good and lawfull witnesses vpon their othes either for or against the partie arraigned as shall not appeare to them or the greater part of them to be vnfit and vnworthy to bée witnesses in that case either in regard of their hatred and malice or their fauour and affection either to the party prosecuting or to the partie arraigned or of their former euill life and conuersation Triall by Péeres 17 Prouided that if the offendor in any the cases aforesaid St. 4. Iac. 1. shall be a Péere of the Realme then his tryall therein shal be by his Péeres as is vsed in case of Felony or Treason and not otherwise 1 Triall of him which woundeth a man in one county whereof he dyeth in another S. Principall c. 16. 2 Triall of a felonie committed in one countie and accessorie thereunto in another S. Principall c. 17. 18. 3 Triall of Treason Misprision of Treason and Murders where the King will S. Indictments 10. 4 Indictments and trials of Treasons committed out of the Realme S. Indictments 11. ⧠Challenge 1 WHen the prisoner standing at the barre hath pleaded not guiltie and that the same issue is to bée tryed betwéene the King and him or the appellant and him the law doth allow him to challenge viz. calumniari to take exception vnto or to
in any dwelling house or houses or to do or commit any robberie in or néere any highway in the Realme of England or in any other the Quéenes Dominions or to commit or doe any robberie in any place within the Marches of England against Scotland or wilfully to burne any dwelling house or any part therof or any barne then hauing corne or graine in the same then euery such offendor and offendors and euery of them being outlawed of the same or being thereof arraigned and found guiltie by the order of the law or being otherwise lawfully attainted or conuicted of the same offence or being arraigned thereof do stand mute of malice or froward mind or doe challenge peremptorily aboue the number of xx persons or will not answer directly to such offence shall not haue the benefit of his or their clergy Euery Lord and Péere of the realme hauing place and voyce in Parliament vpon euery indictment for any of the offences aforesaid shall bee tryed by his Péeres A man was indicted of the robberie of another in his mansion house P. 2. Eliz. Dyer 183. he being in his house and put in feare And another was indicted for that he did feloniously before the sayd robberie procure and counsell the principall to commit the sayd robberie in which indictment of the accessorie this word malitiously was omitted Malitiously omitted in the indictment for the default of which word this accessorie had his clergie for this word malitiously shall haue relation to all the aforesaid offences of Petit treason murder robberie and burning of houses 30 By the before specified Statute of Anno 1. Ed. 6. St. 1. E. 6. 12 Where a Lord of the Parliament shal haue the benefit of his Clergie among other things it is enacted That in all and euerie case and cases where any of the kings subiects shall and may vpon his praier haue the priuiledge of Clergie as a Clerke conuict that may make purgation in all those cases and euerie of them and also in all and euerie case and cases of felonie wherein the priuiledge or benefit of Clergie is restrained excepted or taken away by this Statute wilfull murder and poysoning of malice prepenced only excepted the Lord and Lords of the Parliament S Br. 24. and Péere and Péers of the Realme hauing place and voice in Parliament shall by vertue of this Act of common grace vpon his or their requests and prayer alledging that he is a Lord or Péere of this Realme claiming the benefit of this Act though he cannot read without burning in the hand losse of inheritance or corruption of his bloud be adiudged déemed taken and vsed for the first time onely to all constructions intents and purposes as a Clerke conuict which may make purgation without any further or other benefit of Clergie to any such Lord or Péer from thenceforth at any time after for any cause to be allowed adiudged or admitted Any law custome statute or other thing to the contrarie notwithstanding By this Statute a Lord of the Parliament shall haue the priuiledge of his Clergie where a common person shall not viz. for the breaking of a house by day or night or for robbing of any in the highway and in all other cases excepted in the sayd statute of Anno 1. Ed. 6. sauing in wilfull murder and poysoning But in all other cases wherein Clergie is taken away by any statute made sithence the sayd statute of Anno 1. Ed. 6. he is in the same degrée that a common and inferiour person is But the Court will not giue him the benefit of this statute if he doth not require it If a Lord of the Parliament doth confesse his offence vpon his arraignment or doth abiure or is outlawed for felony it séemeth that in these cases he may haue the benefit of this statute viz. his Clergie for that by the Statute of 18. Elizab. 6. hée nor any other need to make his purgation but shall bée forthwith deliuered out of prison by the Iustices sed quaere 31 In all the foresaid cases of wilfull murder breaking of houses The indictment must beeÌ according to the statute robbing in or néere the highway buggerie stabbing and such like where a man is put out of his Clergie by statute it is necessarie that in the indictment mention should he made of the offence in such manner as the same offence is expressed in the statute P. 9. Eliz. Dyer 261. or otherwise the offendor shall haue his Clergie for if the indictment be onely murdrauit without adding ex malitia praecogitata the partie meant to be indicted of wilfull murder shall haue his Clergie and so of all the residue for his attainder or conuiction is vpon the matter contained in the appeale or indictment and if in the appeale or indictment no matter is contained which doth put him out of his Clergie then it cannot be sayd that hée is attaint or conuict of any matter contained in the Statute which should cause him to loose the benefit thereof And the Iudge is to haue speciall regard and consideration when those words be put into the indictment that they which do giue euidence do proue the same words well and substantially The words of the indictment to be proued as well as the principall fact and if they doe not the Iudge is to admonish the Iurie thereof viz. that there is no proofe of those words by the euidence and that therefore they are not bound to find them if they doe not know them of their owne knowledge Or otherwise for default of good examination the life and lands of any man may be lost by the malice of another which will put false words in an indictment that cannot be proued by euidence When Clergy shal be demanded 32 By the auntient law of the Realme if a Clerke of any order or dignitie had béene taken for the death of a man or other felonie or offence and imprisoned and the Ordinarie had demaunded him Bracton the temporall Iudge ought to haue deliuered him presently to the Ordinarie his Officiall or to some other by his warrant without inquiring of him viz. before his indictment Not to the intent that the Ordinarie should set him at libertie but kéepe him in prison vntill the offendor were purged of his cryme For it was then holden for law that the King could not kéepe him in prison whom hée could not iudge neither could hée disgrade any of his Clergie because hée could not admit any to his Clergie But because the Statute of Westminst 1. St. W. 3. E. 1 doth ordaine That they which bée indicted of Felonie in the Kings Court by the solemne othe of lawfull witnesses shall bée deliuered to the Ordinarie vpon his request according to the priuiledge of holy Church but yet in no manner without due purgation Fitz. Cor. 233. 386. 417. M. 40. E. 3 42. Therefore they that came after this Statute chaunged
not yéeld to be iustified and tried by the Law but will either kill himselfe or giue cause to other men to slay him Fi. Cor. 289 290 312. S. Br. 5. for resisting and not submitting his obedience to the Law then he shal forfeit his goods so that this offence be found and presented by twelue men before the Coroner or some Iustices after his death for in this case the default is in the offendor and not in the Law that he came not to lawfull triall of his offence for the law requireth no more but that the supposed offendor shal be safely kept sub custodia legis by imprisonment or maineprise vntill it be tried whether he be an offendor or not But though the person thus slaine shall for his disobedience forfeit his goods béeing not attainted either of treason or felonie yet in the like case he shall not forfeit his lands if hee bee slaine in arresting or after arrest or otherwise die before he be attainted St. 34. E. 3. 12. as it appeareth by the Stat. of anÌ 34. Ed. 3. 12. which hath established That for forfeitures of dead persons not attainted nor adiudged in their liues their heires or land-tenants shall not be impeached or challenged nor of any other forfeiture except the forfeitures in old time adiudged after the death of the persons by presentment in Eyre or in the Kings bench or of felons of themselues or others And yet some doe affirme if a man doe leuie warre or open rebellion against the King or is assistant to his enemies in the field and then is slaine in battell he shall forfeit his lands goods And others doe adde thereunto that the same his Treason and manner of death must also after his death be found by a Iurie super visum corporis Co. li. 4. 57 Pl. Com. 262. 263. before the chiefe Iustice of England being the soueraigne Coroner of the realm and he must returne it into the Kings Bench and make a Record therof and then that person shall forfeit his lands and goods And vpon those words of the sayd Statute of 34. Ed. 3. viz. Except the forfeitures in old time adiudged after the death of the persons by presentment in Eire or in the Kings Bench or c. some doe inferre that if a presentment in Eire or in the Kings Bench be made of such an open rebellion and battell thereupon foughten and of those that manifestly shewing themselues to bée open enemies or rebels to the King were slaine therein that by the words of the same Statute they shall forfeit their lands But if a man bée arrested for counterfeiting the K. great or priuie Seale for forging of his money or for a priuy conspiracie of the death of the King or c. and is slaine in resisting the said arrest or for a rescous attempted before or after the sayd arrest hee shall forfeit his goods but not his lands And if he bée arrested for any of the sayd offences and committed to prison for the same and after doth dye in prison before he bee attainted of any of the sayd offences he shall neither forfeit lands nor goods though he be taken with the manoure viz. found hand hauing and backe bearing for though it is a mischiefe that a man committing high Treason shall forfeit neither life lands or goods yet the law doth rather beare with that mischiefe than to suffer such an inconuenience that a man onely accused or but only a supposed offendor should bée attainted and forfeit his lands and goods where being preuented by death viz. by the hand of God hee cannot come to answer and defend himselfe and by that meanes cannot bée condemned by such lawfull tryall which is meant and specified in the before rehearsed Statute of Magna charta But for the auoiding of questioÌ and doubt in the case aforesaid they which haue béene knowne parties to such open and manifest rebellions St. 29. H. 6. 1 St. 12. El. 16 St. 29. El. 1 St. 35. El. 5. St. 3. Iac. 2. haue béen of late yeares attainted by Act of Parliament and their lands and goods giuen as forfeit to the King As it appeareth by the stat of Anno 29. H. 6. 13. El. 29. El. 35. El. 3. Iac. The forf of the yeare day and wast 31 There is another forfeiture besides the losse of life lands annuities Fi. Cor. 310 290. 327. and goods wherewith the law hath deuised to punish those that doe commit petit Treason or Felonie and be attainted thereof which is called in Latine the forfeiture of Diem annum vastum the forfeiture of the yeare day and wast which is executed vpon the houses and lands of the offendor that be holden of any other sauing of the king That is the felons houses and lands shall bée seised into the Kings hands where they shall remaine by the space of a yeare and day and then the houses shall be throwne downe to the ground the trées shall be pulled vp by the roots the medowes shal be ploughed vp and all things which the felon did build or plant shal be cast downe digged vp Fitz. Cor. 358. and supplanted Which punishment was ordained in despight of offendors and to shew to others how much the law doth detest murderers committers of burglarie robberie and other felonies and as much as may be to terrifie and discourage others to attempt or practise the like 32 It appeareth by Bracton that by the common law the King should haue had but onely the wast of a Felons lands viz. the benefit to pull downe his houses root vp his trées plough vp his medowes and such other commodities as he could haue raised by spoyling and wasting of the felons houses trées and lands and that then the land so wasted should haue béene presently deliuered to the Lord of the fée of whom the same lands were holden which wast and spoyle was then made without redemption And after by a composition made betwéene the King and the Lords it was agréed By what means the K. came by the yere day and wast That the King should haue the benefit of the felons lands a yeare and a day to redeeme the spoyle and wast which hée might make of the sayd felons lands And the K. graunt by the great Charter made Anno 9. H. 3. St. 9. H. 4. 3 22. tendeth to the same effect viz. Wee will not hold the lands of those that bée conuict of felonie but a yere and a day and then they shall bée deliuered to the Lords of the fées And so it séemeth that King Henrie the third and King Edward the first did hold themselues satisfied with the yeare and day of the felons lands without taking the wast thereof St. 17. E. 2. 16 But after Anno 17. Ed. 2. the Kings Prerogatiues royall béeing expressed or enacted by Parliament amongst others it is ordayned That the King shall haue all the goods of felons which be
be graunted vpon an inquiry according to the stat of West 2. So that if the abettors be not distrainable the def in an appeal shal be without any remedy And further the damages which the abettors are to pay by force of the said statute of West 2. be the dammages that the defendant hath recouered against the appellant which dammages the abettors are to pay for the defendant or for his insufficiencie or nonabilitie and not for themselues And so it may be said that they may satisfie for themselues in a writ of Conspiracie to be brought against them or otherwise their offence shal be vnpunished Conspiracy maintenable vpon acquitall in an appeale or indictment And therefore notwithstanding the said statute of West 2. a Writ of Conspiracie doth lye at this day as well where the defendant is acquited vpon an appeale as where he is acquited vpon an Indictment And accordingly there is a Writ of Conspiracie in the Register deuised for that purpose 33. H. 6. 2. 40. Ed. 3. 42 22. As p. 39 14. H. 7. 2. amongst other Writs of Conspiracie But in an appeale founded vpon an indictment if the defendant be acquite vpon the appeale he shall not haue a Writ of Conspiracie because it cannot be intended to be founded vpon malice when it is founded vpon an Indictment And likewise if an Appeale be founded vpon an Indictment although the appellant be Non-sute after declaration and the defendant be arraigned and acquite at the Kings suit yet the defendant shall not haue a Writ of Conspiracy causa qua supra 3 He against whom a Writ of Conspiracie is to be brought The indictment must be false which giueth the writ of Conspiracy must be charged that he conspired with others to indict the plaintife falsely and maliciously without any good or lawfull cause 22. As p. 77 Fi. CoÌsp 21. 24. or els the Writ will not lye and therefore if by the conspiracie of two or moe one is indicted of Murther and vpon his arraignement it is found that he did kill the man in his owne defence or by misaduenture or by any other meanes which by the Law is iustifiable he shall not haue a Writ of Conspiracie for the Indictment was framed vpon good cause viz. the death of a man and neither vpon falsehood or malice and in like sort if he that is indicted or appealed of Felony doth purchase his Charter of Pardon thereof and pleadeth it he shall not haue a Writ of Conspiracie for by that pardon sued he doth in a sort confesse the committing of the felonie and so cléere the falshood or malice of any which did deuise to indite him And yet notwithstanding the obtaining of his pardon he may waiue it and plead not guiltie and then if he be acquit of the felonie he may haue his writ of conspiracie 11. H. 4. 40. 7. E. 6. Dyer 85. 28. H. 8. Dyer 28. But if the pardon be by act of Parliament he cannot waiue it for the Iustices ought to allow him his pardon without pleading of it if it be a generall pardon 33. H. 6. 2 4 If two be indited or appealed of felonie the one as principall A conspiracie doubtfull and the other as accessorie and the principall hath his charter of pardon or doth die before he be attainted the accessorie shall not haue a writ of conspiracie against the parties that sued the appeale or deuised to indite the principal and him for that it is not yet discussed but standeth indifferent whether the conspiracie were false or true 21. E. 3. 17 7. H. 4. 31. 27. Ass p. 12 30. Ass p. 21 22. Ass p. 77 5 If after a conspiracie for an inditement agréed vpon The conspirators doe become indictors to be preferred by two or more the same conspirators be sworne vpon an Enquest to enquire of felonies and they with the residue of the Enquest that be sworne with them do indict him of felony against whom they did before conspire in this case he shall not haue a Writ of Conspiracy against them because it cannot be intended false and malicious when they did it by vertue of their oathes and also did it with others besides themselues And the same Law is if after the conspirators be sworne vpon the Enquest of inquirie and haue spoken and conferred with their companions the Iustices shall remooue them from the Enquest yet in that they were once sworne and the conspiracie thereby discharged this remoouing them from the Enquest which commeth after 20. H. 6. 5. 35. shall not make them to bée againe in danger and charge of the Writ of Conspiracie And so it is of a Iustice of Peace A Iustice of peace he shall not be charged by a Writ of Conspiracy for any thing which he doth in open Sessions as a Iustice of Peace 27. Ass p. 12 12. E. 4. 18 21. E. 4. 67. 47. Ed. 3. 17. for he is a Iudge of record and sworne to execute his office duly and may informe for the kings benefit and to punish offendors as well as he can But the Law is méere contrary if one who is no Iustice of record doth it for he shal be charged by a Writ of Conspiracy if he do it with others And in like sort 35. H. 6. 14. 27. As p. 12 20. H. 6. 5. 9. H. 4. 11. 21. H. 7. Kel 81. if one doth come into the Court A giuer of Euidence and discouereth a felony and is sworn and doth giue euidence to the Enquest he shall not thereupon be charged in conspiracie if he doth not before conspire with others falsely and maliciously In a writ of Conspiracy the def pleaded that when the Iurors had taken their oathes vpon the indictment he was sworn to informe them But because an act done by him only without others cannot be said to be any conspiracy 35. H. 6. 14. 27. As p. 12 and so was no answer to that wherewith the plaintife charged him for that cause he wayued his plea and pleaded not guilty for he that is to be charged with a conspiracy must be charged in respect that he did it with others and falsely and maliciously Who be conspirators 6 And for that it might be knowne to all men whom the Law did construe to be conspirators and were worthy to be punished as conspirators Therefore there was a stat made AnÌ 33. Ed. 1. which defineth them in this manner viz. St. 33 E. 1. Conspirators be they which bind themselues by oath couenant or other alliance that euery one shall helpe and maintaine others purpose falsely and maliciously to indict or to moue and maintaine suites and also that cause infants to appeale others of felony whereby they are imprisoned and much grieued and such as retaine men in the country with liueries or fées to maintaine their leud enterprises and to subuert the truth as wel the takers as the giuers
hath possession sueth a Writ of Forcible Entry 21 Forcible entry of a Rent or Common 22 Forcible entry to the vse of another Forcible detaining by words onely 23 Iointenants or Tenants in common expelling each other by force 24 Who may bring a Writ of Entry vpon the Statute of 5. Richard 2. 25 Turning a water-course by force 26 The plea of not guiltie in Forcible entry The finding of the speciall matter doth charge or discharge the defendant of force Presentment of Forcible entry 27 One action for entring and detaining with force 28 A writ vpon the Statute of North-hampton 29 What shal be said to be force Force by number of seruants Force by number of weapons 30 Who may make a Forcible entry 31 What force is lawfull to the persons of men 32 Where the house of a man may be broken by force where not 33 A particular person may defend himselfe and his by force 34 The Writ of Vi laica remouenda 35 Where force shal be remoued for the K. Incumbent where not Forgerie Fol. 43. 1 Forgerie Periurie and Maintenance doe tend to the breach of the Peace 2 The enormitie of Forgerie A repeale of former Statutes of Forgerie 3 Forging of deeds whereby anothers landes shall bee troubled 4 Forging a deed whereby a lease or annuity may be claimed 5 Seuerall remedies against a forger 6 A forger not twice punished for one offence 7 The plaintifes release of forgerie shall only discharge his own remedy 8 The punishment for the second offence of forgery 9 The Iustices of Assise shall heare and determine forgery 10 Forging of deedes before the statute of 5. El. Pleading of a forged deed made before the said statute 11 Persons not chargeable of forgerie by the said stat of 5. El. 12 Forging of a customarie booke 13 The proces to leuie costes and damages of a forger 14 The kings pardon of forgerie 15 Forging of a Testament 16 Inserting more in a wil then is directed 17 Pleas in barre of forgerie 18 Where one shall haue an action of Forgery though he hath but a right to the land 19 Where no title to land lease c. no action of forgery 20 Forging of a deed touching iointenants lands 21 One sealeth a deed by anothers commaundement 22 One forgeth a deed and another doth publish it 23 Forgery by antedating of a deed 24 Getting of other mens goods by forged letters or tokens 25 Suspected persons of that kind of forgerie called before the Iustices 26 Forging of a Testimoniall Periurie Subornation Fol. 48. 1 Truth is to be tried by the oathes of men The credit of an oath 2 What sorts of persons are to be deposed and what not 3 All the parties to the execution of iustice sworne Causes of suspition in Sherifes in impanelling of Iurors 4 Euery Iuror ought to be an honest and lawfull man Challenges of Iurors suspected 5 A witnesse cannot be a Iuror 6 Periury suspected by deliuery of his verdict before hand 7 Periury suspected by lying at the charge of one of the parties 8 Periury suspected by beeing an arbitrator in the cause in question 9 Periury suspected by combination 10 Periury suspected if one of the parties and a Iuror bee in suit of law 11 Periury suspected for that the Iuror passed against him before 12 Periurie suspected in respect of subiection or gouernement 13 Periurie suspected in respect of alliance kinred or profit One godfather to the others child 14 Periury suspected in respect of ignorance of the cause Want of Hundredors Want of the View 15 Periurie suspected in respect of the pouertie of the Iurors 16 The iudgement in an Attaint at the common law against a Iury proued periured 17 The iudgement in an Attaint in London An Attaint where the thing in question amounteth to 40. pouÌds and where not 18 The meaning to commit Periurie punished Decies tantum Embraceors 19 The punishment of Periurie committed by an Enquest in Wales 20 Periury committed by witnesses A witnesse vpon proces serued shall appeare 21 The penalty for procuring of vnlawfull Periury 22 The penalty for committing of wilfull Periury 23 In what Courts Periurie shal be punished 24 Proclamation of the statute of Periury 25 Periury punished in the spirituall Court 26 Periurie punished in the Starre-chamber 27 Periurie punished in Bankrupts Periury committed by witnesses for Bankrupts 28 Periury committed vpon an indictment of Riot Periury vpon an indictment of Felony 29 Periury in prouing a Suggestion for a prohibition 30 A suit vpon Periury in the Chauncerie 31 Where Periury shall be punished in the temporall court and where in the spirituall Maintenance Champertie Embracerie and buying of Titles Fol. 56. 1 What Maintenance is and the enormitie thereof 2 Maintenance by men of authority 3 Maintenance by combination Maintenance by Noblemens officers 4 Maintenance by champerty Who be champertors Pleaders may giue counsell for their fees The punishmeÌt of champertors 5 What is Champerty and what not 6 Maintenance by Embracery Maintenance by Iurors The penalty of maintenance in Iurors and Embraceors 7 Maintenance punished by the writ of Decies tantum 8 Maintenance by Ambidexter 9 Maintenance of suits in law and the penalties thereof 10 Maintenance by buying of pretenced Titles 11 What is selling of a pretenced Title What is a pretenced Title 12 Maintenance by giuing of liueries and retaining of seruants or officers 13 The publishing inquiring of and punishment of Maintenance 14 Why the pursuing of maintenance is left out of the statute of 18. Eliz. 15 Assurances to haue maintenance void Lands gotten by force assured to haue maintenance 16 What maintenance is punishable and what iustifiable 17 It is no maintenance in a Iuror for giuing of his verdict Maintenance in a Iuror by suing for iudgement 18 What is Maintenance in a Iuror and what not 19 Maintenance by speaking of words Maintenance by comming to the barre with one of the parties 20 Maintenance by giuing of money to labour a Iury. 21 What is maintenance in witnesses and what not 22 Maintenance by procuring of an Indictment 23 What is maintenance in a Mainpernor 24 Maintenance in respect of his interest in the land Maintenance in respect of his possibility to haue the land Maintenance in respect of his warranty 25 Maintenance in respect of his rent A Lord may maintaine his tenant 26 Maintenance in respect of his debt 27 Maintenance in respect of his title to goods Maintenance by detaining of a writing deliuered in trust 28 Maintenance in respect of his ioint estate with others Maintenance by all the inhabitants of a parish 29 Maintenance of the poore in their suits Clerkes Counsellours and Atturneyes assigned to aid the poore 30 Maintenance in respect of kinred or alliance Vnlawfull maintenance is continuall during that suit Maintenance in respect of Gossiprie 31 Maintenance in respect the party could not speake English 32 Maintenance in a professor of the Law 33 Maintenance by an Atturney 34
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 theÌ 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 AnnÌ 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 argumeÌts 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 wheÌ 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
for commencing a wrong full suit for the law doth intend those suites to be pursued for vexation trouble and likewise in some other cases the def is amerced for the wrongfull detaining of that which is not his owne and for inforcing the plaintife by suit in law to séeke recouer his owne But as in all cases the vnlawfull maintainor of suits is in fault so is he in euery such case punishable For though the case of the plaintife or def which he vndertaketh to maintaine be iust and lawfull in him who prosecuteth or defendeth the suit whose the cause is yet in the maintainor it is vnlawfull for it is not his owne suit neither is it pursued or defended for the recouery or protection of that which he pretendeth to be due to himself and so in a sort he maketh complaint where he hath no wrong or maketh defence where none séeke to hurt him whereby opposing himselfe against others who do not contend with him he laboureth to disturbe the ordinary course of iustice and therewith to blemish the peace of the Realme for as it appeareth partly by the statute of Anno 1. Ed. 3. Sta. 1. E. 3. 14 and specially by the preamble of the statute of Anno 32. H. 8. St. 32. H. 8. 9 Nothing conserueth the people in more peace good concord then the due administration of iustice and the indifferent triall of titles and issues according to the Lawes of this Realme which being hindered letted by Maintenance Embracery Champertie Subornation of witnesses sinister labour and buying of titles there will of necessitie insue thereof great periurie vnquietnesse oppressions troubles wrongs and disheritances 2 And because this Maintenance is as an euill Trée hauing growne out of it many corrupt branches therefore the wisdome of the Realme hath froÌ time to time prouided seuerall statutes as it were sharpe hatchets to loppe or shred those boughes when they did spring and shoot out As King Ed. 3. Maintenance by men of authority perceiuing that his Counsellors Magistrates and Officers in his house certaine great men of the Realme by sending of Letters Messengers giuing of Liueries by other means did sollicite matters and maintaine quarrels and tooke parts in the Countrey St. 1. E. 3. 14 20. Ed. 3. 3. by a statute made Anno 1. of his raigne and another Anno 20. of his raigne did ordaine That common right should be done to all persons as well poore as rich and that none of his said Officers nor any Noblemen nor any other great or small should take vpon him to maintaine quarrels or to take parts to the let or disturbance of the common law Nor that any should take in hand or meddle with quarrels or questions but their owne And because there was no speciall punishment ordained by the said statute of Anno 1. Ed. 3. for those who should transgresse that Law therfore King R. 2. by a statute made in the first yeare of his raigne established St. 1. R. 2. 4. That if the kings Counsellors or great Officers should take vpon them to sustaine any quarrell by Maintenance in the Countrey or elsewhere he so offending should indure that paine which should be inflicted by the King himselfe by the aduice of the Lords of his Realme and other inferior officers and seruants of the Kings in the Exchequer and other Courts and his meniall seruants shall loose their offices and seruices and be imprisoned be ransomed at the kings pleasure euery of them according to his degrée estate and desert and all other persons of the Realme of what estate soeuer they be shal be imprisoned and ransomed as the other aforesaid St. 33. Ed. 1. 3 The statute intituled Definitio de conspiratoribus made Anno 33. E. 1. Maintenance by coÌbination doth decypher another sort of Maintainors which there be called conspirators in this sort St. 1. R. 2. 7. viz. Conspirators be they that bind themselues by oath couenant or other alliance that euery of them shall helpe and sustaine the other falsely maliciously to indite or falsely to moue or maintaine pleas and also such as cause children within age to appeale men of felony whereby they are imprisoned sore grieued and such as retaine meÌ in the country with liueries or fées to maintaine their malicious enterprises and this extendeth aswell to the takers as to the giuers and stewards and bailifes of great lords Maintenance by noblemens officers which by their seigniorie office or power vndertake to vphold or maintaine quarrels pleas or debates that concerne other parties then such as touch the estate of their lords or themselues 4 There is also another kind of Maintenance which is called Champerty Maintenance by champerty and the offendors therin be called Champertors whom the foresaid statute of Anno 33. St. 33. Ed. 1. E. 1. doth define in this maner Who be champertors viz. Champertors be they that moue pleas and suits or cause to be moued either by their owne procurement or by others sue them at their proper costs for to haue part of the land in variance or part of the gaines which Champertors were accounted great maintainors of suits and professed enemies to peace whereupon it was ordained by the statute of West 1. St. 3. E. 1. 25. That no Officer of the Kings by themselues nor by other shall maintaine pleas suits or matters hanging in the Kings Court for Lands Tenements or other things for to haue part or profit thereof by couenant made betwéene them and he that doth shall be punished at the kings pleasure and after by the statute of Westm 2. St. 13. E. 1. 48 the same was expressed more at large by the which it was enacted That the Chauncellor Treasurer Iustices nor none of the Kings Councell no Clarke of the Chauncerie nor of the Exchequer nor of any Iustice or other Officer nor none of the Kings house Clarke nor Lay shall receiue any Church land nor tenement by gift in fée nor to farme nor for purchase nor otherwise so long as the thing is in plea in the Kings Court or before any of his Officers nor shall take reward therefore and hee that doth contrary to this Act eyther himselfe or by any other or make any bargaine shall bee punished at the Kings pleasure as well he that doth purchase as he that doth giue And because other Officers were not bound by the foresaid Statutes as well as the Kings and to the intent some certaine and more sharpe penaltie might bee imposed vpon the transgressor of the said statutes then before time had béene prouided Therefore by a statute made Anno 28. E. 1. St. 28. Ed. 1. 11. intituled Articuli super Chartas it was ordained That no Officer nor any other for to obtaine part of the thing in plea shall maintaine any matter that is in suit Nor none vpon such couenant shall giue vp his
same in a writ of Maintenance brought against him but he cannot retaine or intreat a man learned in the law to be of counsell with the principall partie nor meddle further in that cause than to sée the mainprise performed and himselfe discharged Maintenance in respect of his interest in the land 24 Euerie person that hath any interest in land may meddle and maintain him who is impleaded for the same land and not bee punished therefore in a writ of Maintenance As if tenant for terme of life or in taile of land bée impleaded for the same land or any part thereof Bro. Maint 53. he in the reuersion or remainder thereof may at his owne charges maintaine him in that suit for the safegard of his owne estate for it is in a sort his owne case and the defence of it is to his owne benefit and the euiction to his owne disheritance But this maintenance must be after tenant for terme of life hath atturned vnto him in the reuersion for iâ he maintaine the suit before it is punishable in him 9. H. 6. 64. And so it is if a man being seised of land hath issue a daughter who is maried to another if the father in law be impleaded of that land in a reall action the sonne in law may maintaine him at his owne charges for that by possibilitie that land may after the decease of his father in law descend to his wife and so come to him in her right But if the daughter dye without issue of her bodie begotten by the said husband before the said suit commenced 14. H. 7. 2. 6. E. 4. 5. 19. E. 4. 3. then the sonne in law cannot maintaine the father in law in that suit Neither can hee maintaine him during the life of his wife if an action of Debt couenant account or any other personall action be brought against him for he is neither to take benefit or losse by any of those suits 6. E. 4. 2. 39. H. 6. 20. And if a man seised of land make a lease for certaine yeares of the same and after a suit is commenced betwéene the said lessée for yeares and a stranger touching the same land or any part thereof the lessor may giue euidence for the lessée vpon the triall of the cause in question or otherwise may maintaine him in that suit at his owne charges for it tendeth to his owne priuat benefit or losse And in some case a man may maintaine a suit lawfully though he be neither heire to the land nor in possession reuersion Maintenance in respect of his possibilitie or remainder thereof As if a man being seised of land 9. H. 6. 64. doe make a lease thereof to another for the terme of the life of the lessee and after doth grant to a straunger that if the said tenant for terme of life doe dye during the same lessors life that then the same stranger shall haue and enioy the same land for the terme of xx yeares after the death of the same tenant for life if in this case the tenant for life be impleaded for this land the same stranger may maintaine him for the sauing of his owne estate for yeares and yet he hath no certaintie but a possibilitie of a terme for yeares which peraduenture will neuer chance And likewise in some other case a man may maintaine a suit lawfully though he be neither in possession reuersion remainder or possibilitie of the thing in question Maintenance in respect of his warranty As if a man be seised of a rent going out of another persons land 11. H. 6. 49. to him and to his heires and by his déed doth graunt the same to another and to his heirs with clause of warrantie and the tenant of the land out of the which this rent is issuing doth atturne to the grauntée of this rent if after the grauntée be impleaded of this rent vpon tryall of the issue the grantor may come into the Court and shew to the Iurors such euidence as he hath to prooue the title of this rent and it is lawfull maintenance and not punishable in him though he was neither called into the Court by voucher to warrantie or by Warrantia Chartae And so might he haue done if he had beene called to warrantie by any of the meanes aforesaid vpon a warrantie made of land or rent for it is to preserue himselfe out of daunger and from recompencing in value of that whereof before he had made warrantie 25 As it is in lands and leases so is it in rents goods and debts Maintenance in respect of his rent for euerie person that hath interest in them may meddle and maintaine and defend him who is impleaded or prosecuted by suit or doth implead or prosecute by suit any other for any matter or cause concerning him or whereupon hee doth depend so that the same suit doth tend to impeach preiudice or trouble his estate therein or may redound to his benefit or profit or may be a meane thereof 9. H. 6. 64. As if a man haue a rent charge in fée out of certaine lands and another man hath in custodie a boxe of writings concerning the same rent and after hée that hath the rent doth graunt it to a stranger and his heires to the which graunt the tenant of the land charged doth atturne and moreouer the grantor of that rent charge doth graunt to the assignee of the same that if he can recouer the same boxe of writings that then the same assignee shall haue them If after this graunt the grauntor doth pursue a writ of Detinue against him that hath the custodie of this boxe of writings he to whom the same reÌt charge was graunted may lawfully maintaine him in that suit for that by promise he is to haue the same boxe of writings if it be recouered for the preseruation of his estate in the said rent charge 11. H. 6. 47. And a Lord may maintaine his tenant if he be impleaded for his freehold A Lord may maintaine his tenant in respect of his rent and seruices that he is to receiue and haue of him And so it was before the Statute of Vses made anno 27. H. 8. if a man had made a feoffement of land to others to his owne vse the feoffor might maintaine the freehold tenant which held of his feoffees in respect of the vse which he hath in the rent and seruice of that tenant 15. H. 7. 2. 26 And the same law is touching debt As if A. do owe vnto B. xx l. and C. doe owe to A. xx l. due by Obligation Maintenance in respect of debt and A. will deliuer vnto B. the same Obligation in satisfaction of the xx l. which he doth owe him In this case B. may sue an Action of Debt vpon this Obligation against C. in the name of A. and retaine an Attourney and learned counsell and pursue and
law doth allow him to doe in respect the sooner to deliuer his seruant from suit and trouble that hée may not loose the benefit of his seruice for the longer he doth lacke his mans seruice the greater is the Masters losse And if the seruant be arrested in any priuiledged place the Master may maintaine him and spend his owne money to deliuer him in respect that otherwise he should loose his seruice for by that meanes he doth maintaine him in his owne behalfe and to auoid his owne hinderance But if the seruant be impleaded in a reall action wherein he may appeare and answer by Attourney and that his owne presence is not requisit 21. H. 7. 40. then the master may not maintaine him therein for that the Master shall receiue no preiudice if the land in question shall be recouered from his seruant And in like sort the seruant may maintaine the Master How the seruant may maintaine his Master in any suit commenced by or against his said Master in all lawfull manner As he may trauaile in furtherance of his Masters suit 19. H. 6. 31. 19. Ed. 4. 3. he may retaine his counsell with his Masters money and shew his counsell or the Iurie vpon the tryall of his Masters cause in question his Masters euidence for he is bound to doe his Master his diligent seruice and that which his Master commaundeth him to do touching his suit is his Masters seruice But that seruant which may iustifie to maintaine his Master in such sort as is aforesaid must be a seruant who is retained with his Master for a yeare 39. H. 6. 5. or some long time and to do all such seruices as he shal be imployed in by his said Master for if he be a seruant onely hired for a day two or thrée or to ride but some one iourney or to do but some one speciall seruice then if he do maintaine his Master or his Master maintaine him in any sort as aforesaid it is vnlawfull maintenance in him But if in either of the cases aforesaid the Master for his seruant or the seruant for his Master shall giue or promise money or other reward to any of the Iurie to giue his verdict or do threaten any of them to be killed beaten maimed dispossessed of their farmes 12. E. 4. 14. 19. H. 6. 31. or do giue his owne money to the Sherife to arrest the other partie to that suit then it is punishable by action of Maintenance in him that shal so offend ⧠Deceit Couin Collusion Fraud 1 DEceit Couin Collusion and Fraud bée great offences to the Commonweale and speciall impediments of the iustice and peace of the Realm wherof there be so many and of so generall sorts and kinds as there be wicked deuises in the hearts of men and lewd persons to put them in practise And it were a worke almost as infinite to diuulge the particulars and to reduce into writing all the Deceits The multitude and enormitie of Deceits and Frauds Couins Collusions and Frauds which in time haue béene inuented and effected as it were to poise the weight of the sands of the sea or to decipher the number of the starres of the element for by how many meanes a man may trust by so many and more hee may bee deceiued And therefore I will vndertake to treat of no more than our common and statute lawes haue detected and accused to bée deceits frauds c. and amongst others but of those which the makers expositors and Sages of our lawes haue noted to be chiefely offensiue and most opposite to the due execution of iustice vpon which this peace whereof I doe write doth chiefely depend For the wisedome of this Realme first in the making of our lawes and after in expounding them haue bent their chiefe care to crush and beat downe Deceit and Fraud plainely séeing that the greatest part of the crimes which bée committed in this kingdome from the highest treason to the smallest trespasse haue some intermixture with them And that if they with their dependants could bée fully extirpat both iustice and peace would more brightly flourish And notwithstanding they doe not begin their quarrels with rapier and dagger sword and buckler as some other of the offences before mentioned do yet is there grafted in the root of them as much gawle and venim and more durable and bitter extremities do spring from them than âoe ensue by the Canon shot the light horsemans staffe or the footmans bill For though some part of euerie kings raign hath had a calme and repose from war and hostilitie yet neuer any age or yeare was cléerely fréed of falshoods corruptions deceits and frauds 2 The wisedome of the Realme perceiuing how necessarie a thing iustice is and how opposite and repugnant vnto it deceits and frauds bee doth therefore specially prouide to make choyce of such men of all sorts The reward for paines and punishments for deceit of officers towards the law to execute the same iustice as she is persuaded by their learning and experience can by their vertue integritie will performe to euerie person his due and tread beat downe fraud whose pains she doth requite with reuerend respect liberal rewards titles of credit large priuiledges But if she do find any of the said officers whom she putteth in trust to deceiue her expectation and to practise falshood or guile then she doth as sharply punish them as she did before munificently wage them As appeareth by the stat of An. 8. St. 8. R. 2. 4. R. 2. wherby it was ordained A Iudge A Clerke That if any Iudge or Clerke do make any false entring of a plea rase any rol or change any verdict whereby any person receiueth disheritance he be thereof conuict before the K. and his Counsell he shal be punished by fine ransome at the K. pleasure and satisfie the partie And for the recouerie of the inheritance the partie shall sue by writ according to the law And for the auoyding of corruption which may happen in officers in those courts places wherein there is requisit to be had the true administration of iustice to the intent that worthy persons should bée preferred to the places of iustice none other should attaine the same for fée or reward by a stat made An. 5. Stat. 5. 6. E. 6. 16. 6. E. 6. it was enacted No office of iustice shal be sold or bought That if any person bargaine or sell any office or deputation of office or take any mony fée reward or other profit directly or indirectly or take any promise agréement couenant bond or assurance to receiue or haue any mony reward c. for any office or the deputatioÌ of any office or any part of any of theÌ or to the intent that any person shold enioy any office or the deputation of any of theÌ or any part or parcel of any