si minus idoneus sit levius castigatur Si fortuito incendium factum sit D. 49.9.11 venia indiget uisi tam lata culpa fuit ut Luxuriae aut dolo sit proxima Hitherto of criminal Pleas that are perpetrated against the King and Common-wealth mediately but principaliter in singulas personas I proceed to those that immediately touch the King and his Crown and they are 1. High Treason Crimen laesae Majestatis Stamford telleth us that the King is the Preserver nourisher and defender of all his People and that by his great travel study and labour his People only enjoy their Lives Lands and Goods And as the body of Man cannot live without a Head but will fall to the ground so the Realm cannot be governed without a Head which is the King Agreable to that of Seneca Ille est vinculum per quod Respublica cohaeret c. And therefore we his loving Subjects are obliged to watch for that him wakes for us And primum virtutis opus est servare servantem caetera If so what an abominable thing must it be to be a violator of Kingly Majesty Crime de Masesty sayes the Mirror est un peche horrible fait al Roy c. Tacitus calls Crimen Majestatis vinculum necessitatem silendi Omnium acousationum complementum And in the Civil Law it is said thus D. 48.4.1 Proximum Sacrilegio crimen est quod Majestatis dicitur id est crimini quo divina Majestas pulsatur High Treason does extend to several parts or kinds viz. Death to Violation to Leaving of Warr to Adhering to the Kings Enemies to Counterfeiting the Great Seal Privy Seal and the Kings Coyn to the bringing into this Realm counterfeit Money to the similitude of His Majesties Coyn of these several parts in their order 1. Touching Death 1. To compass or imagine the death of the King is Crimen laesae Majestatis as appears by Britton and Fleta Briiton thus Grand Treason est a compasser nostre mort Fleta hath this words Si quis mortem Regis ausu temerario machinatus fuerit c. quamvis voluntatem non perduxit ad effectum To depose the King or to take the King by force and strong hand and to imprison him untill he hath yeilded to certain demands this is a sufficient overt Act to prove the compassing and imagination of the death of the King for this is upon the matter to make the King subject and to despoil him of his Kingly Office of Royal Government And so it was resolved by all the Judges of England Hill 1. Jac. Regis in the Case of the Lord Cobham Lord Gray Watson and Clarke Seminary Priests So if divers conspire the death of the King and the manner how and thereupon provide weapons powder poyson assay harness send Letters c. or the like for execution of the Conspiracy this is a sufficient overt act to prove the compassing and imagination of the Kings death If any man shall attempt to make himself so strong that the King shall not be able to resist him he is guilty of Rebellion In the like manner the Law interpreteth that in every Rebellion there is a machination against the life of the King and his deposing For a Rebel will not suffer that King to live or reign which may afterwards punish or revenge such the treason or Rebellion These things are confirmed 1. by the Imperial or Civil Law Vide D. 48.4.1 ad Legem Juliam Majestatis whereby to do any thing against the safety of the Prince is holden to be treason 2. By the force of reason because it cannot be that which hath once given Law to the King should ever permit that the King should recover his former Authority or live least at any time he should recover it 3. By examplss drawn out of our English History as of Edward the Second and Richard the Second who being by force of Armes gotten by Subjects into their power were not long after deposed also and made away The Civil Law Quamvis regulariter ratione solius consensus nemo ad poenam obligatur sed secuto demum actu Aliud tamen obtinet in crimine in Principe in quo voluntas punitur sed intellige talem voluntatem cum qua conjunctum est initium facti i. e. factio vel conjuratio Sola enim nuda voluntas puniri nequit Note that there is difference taken by our Law between felony and High treason for it is not felony unless there be some act done Non efficit conatus nisi sequatur effectus But if one compass or imagine the death of the King who is the Head of the Common-wealth and declares his compassing or imagination by words or Writing it is High treason Doct. and Stud. lib. 2. cap. 41. Co. 3. Inst f. 5.12 H. 8.36 b. 13. H. 8.13 Bendlones Rep. Smith v. Spurle And therefore these following words were adjudged High treason viz. If the King dye without Issue Male that he would be King and also the party arraigned spake that if the King should commit him to Prison that he would kill him with his dagger So one Crobagan an Irish man was arraigned of Treason for that he being the Kings Subject at Lisbone in Spain Cro. 3. part Crohagans Case f. 332. used these words I will kill the King innuendo Dominum Carolum Regem Angliae if I may come unto him and that in August 9. Car. Regis he came into England for the same purpose To this he pleaded Not-guilty and was tryed by a Jury of Middlesex and it was directly proved by two Merchants that he spake these words at Lisbone in Spain in great heat of speech with Captain Baske and added these words Because he is an Heretick and for that his traiterous intent and the imagination of his heart is declared by these words it was held High treason by the course of the Common Law and within the express words of the Statute of 25. E. 3. And he coming into England and being arrrested by Warrant for this cause most insolently put his finger into his mouth and scornfully pulling it out said I care not this for your King c. all which speeches and actions though he now denyed the Jury found him guilty whereupon he had Judgment accordingly He confessed that he was a Dominican Fryer and made Priest in Spain And although this and his returning into England to seduce the Liege-People were Treason by the Stat. of 23. Eliz. yet the Kings Atturney said he would not proceed against him for that cause but upon the Stat. of 25. E. 3. of Treason So one Henry Challercomb was indicted of Treason for words and was found guilty and executed So John Williams was also indicted found guilty and executed for writing a Treasonable Book called Balaam Case These two last Presidents you may see cited in Pyne's Case in Crokes third part of his Reports It is commonly
said That bare words may make an Heretick but not a Traitor without an overt Act And therefore to make compassing by bare words or sayings High treason it must be by some particular Statute such were the Statutes of 26. H. 8. c. 13. 1. E. 6. c. 13.1 2. Phil. and Mar. c. 9.1 Eliz. c. 6.13 Eliz. c. 1. 14. Eliz c. 1. but all these are either repealed or expired Co. 3 Inst f. 140. yet compassings or imaginations against the King by word without an overt Act is an High misprision Note that there is a Law made for the Preservation of His now Majestie 's Person and Government 13. Car. II. Reg. c. 1. against Treasonable and seditious practises during his natural life which God long continue proceeding from Printing Writing Preaching or malicious and advised speaking Note further that to calculate or seek to know by setting of a figure or Witchcraft how long the King shall Reign or live Co. 3. Inst f. 6. is no Treason for it is no compassing or the imagination of the death of the King within the Stat. of 25. E. 3. And this appeareth by the Judgment of the Parliament in 23. Eliz. whereby this offence was made felony during the life of Q. Elizabeth which before was punishable by fine and imprisonment But Scipio Gentilis in his first Book De conjuratione sayes De vita Principis inquirere praesertim per Astrologos capitale esse neque hoc solum sed etiam de ea dubitare vel desperare pro crimine Majestatis bahitum esse si ea desperatio indiciis esset aliquibus patefacta Thus much of the King himself If any do compass or imagine the death of the Queen Confort or Prince 25. E. 3. c. 2. De proditionibus the Kings Son being Heir apparent to the Crown for the time being and declare it by some overt Act the very intent is Treason as in case of the King himself If a man slay the Chancellor Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Justices of Assize and all other Justices assigned to hear and determine 25. E. 3. c. 2. being in their places doing their Offices And the reason wherefore it is Treason in these Cases is because sitting judicially in their places that is in the Kings Courts and doing their Office in administration of Justice they represent the Kings Person who by his Oath is bound that the same be done 2. Touching violation or Carnal knowledge To violate or to carnally know the Kings Companion 25. E. 3. c. 2. or the Kings eldest Daughter unmarried or the Wife of the Kings eldest Son and Heir apparent is High treason The reason that the eldest Daughter only is mentioned in Stat. of 25. E. 3. is for that for defaut of Issue Male she only is inheritable to Crown 3. Touching War To levy War against our Lord the King is High treason 25. E. 3. c. 2. This was so by the Common Law for no Subject can levy War within the Realm without Authority from the King for to him it only belongeth F. N. B. 113. Co. lib. 2. Wisemans Case f. 15. b. In the Codes of Justinian is extant the Constitution of Valentinian and Valens Nulli prorsus nobis insciis atque inconsultis quorumlibet Armorum movendorum copia tribuatur Huc pertinet illud Augustius Ordo naturalis mortalium paci accommodatus hoc poscit ut suscipiendi Belli auctoritas atque Consilium penes Principes sit If any levy War to expulse Strangers to deliver men out of Prison to remove Counsellors Co. 3. Inst f. 9. or against any Statute or to any other end pretending Reformation this is levying of War against the King because they take upon them Royal Authority which is against the King So if any with Strength and Weapons invasive and defensive doth hold and defend a Castle or Fort Co. 3. Inst f. 10. against the King and his Power this is levying of War against the King within the Statute of 25. E. 3. One Thomas Bensted was indicted and arraigned before special Commissioners of Oyer and Terminer in Southwark Cro. 3. part Bensteds Cafe f. 583. wherem all the Justices and Barons were in Commission and present at which time upon Conference with all the Justices it was resolved First that going to Lambeth House in warlike manner to surprize the Arch-Bishop who was a Privy Counsellor it being with Drums and a multitude as the Indictment was to the number of 300. persons was Treason And Secondly It was resolved by ten of the said Justices seriatim that the breaking of a Prison wherein Traitors be in Durance and causing them to escape was Treason although the Party did not know that there was any Traitors three upon the Stat. of 1 H. 6. c. 5. And so to break a Prison whereby Felons escape is felony without knowing them to be imprisoned for such offence Note A Compassing or Conspiracy to levy War is no Treason for there must be a levying of War de facto 4. Touching Adhesion to the Kings Enemies If a man be adherent to the Kings Enemies in his Realm 25. E. 3. c. 2. giving to them aid and comfort in the Realm or elsewhere it is High treason Having given you the words of the Stat. 25. E. 3. I propose these Queries Whether the delivery of a Castle or Fort to an Enemy be an Adhering to the Kings Enemy Qu. 1 To deliver or surrender the Kings Castles Resp or Fort by the Kings Captain thereof to the Kings Enemy within the Realm or without for Reward c. is an Adhering to the Kings Enemy and consequently Treason declared by the Act of 25. E. 3 Whether the Aiding or succouring of a Rebel beyond Sea be Treason Qu. 1 A Resp is out of the Realm at the time of a rebellion within England and one of the Rebels doth fly out of the Ream Co. 3. Inst f. 10. 13. Eliz. Dyer f. 298. whom A knowing his treason doth aid or succour this is no Treason in A by the Stat. of 25. E. 3. because the Traitor is no enemy Vtrum Exteri Qu. 2 qui cum Subditis contra Principem militant Rebelles sint habendi An Enemy coming in open hostility into England Resp and taken shall be either executed by Marshal Law or ransomed Dyer 4. Mar. f. 145. a. Co. Lib. 7. Calevins Case for he cannot be indicted of Treason for that he was never within the Protection or Ligeance of the King and the Indictment of Treason saith Contra Ligeantiam suam debitam But if a Subject joyn with a Foreign Enemy and come into England with him he shall not be taken prisoner here 13. Eliz. Dyer f. 298. and ransomed or proceeded with as an Enemy shall but he shall be taken as a Traitor to the King Whether an English Man born consulting with a Foreign Prince to
2 Petit Treason What it is 3 How many ways it happens 3 4 What may be said Petit Treason in a Servant 4 Execution of a Servants Act hath a retrospection to the Original cause Ib. What may be said Petit Treason in a Wife 5 Parricide whether Petit Treason or not 6 7 Poyson How many ways a Man may be poysoned 35 36 Piracy The Etymology of the word Pirat 70 71 Piracy where antiently Treason where not Ibid. It alters not property unless it be in Market overt Ib. Where there shall be no corruption of blood in case of piracy 71 72 Where a Pardon of all felonies shall not extend to Piracy Ib. Punishment It s definition 113 The true end thereof 114 It s several sorts in our Law in the Jewish and Romane Laws 114 115 116 117 Circumstances observable relating to punishments 120 Principals In Treason all are principals 123 Rules touching principals Ib. Where a Man may be principal though he be not present at the Act. Ib. Where a Man may be principal as well before as after though he be absent at the doing of the fact 124 Where the being present and abetting an offence makes all principals though the offence be personal Ibid. Where the Attainder of an Accessary depends upon the Attainder of the principal 128 Pain Fort Dure In what cases a Man that stands mute shall have Judgement of Pain Fort and Dure and in what not 150 Where the Judgement of Pain Fort and Dure shall be no Plea to a former felony 146 Pardon The Description and Etymology of it 158 159 How many sorts of Pardons there be Ib. Where a Writ of Allowance is necessary to a Pardon and where not Ib. 160 Rape c. 83 84 Riots The Description of a Riots and its derivation 101 Stat. touching Riots Ibid. What number of Persons may commit a Riot a Rout ad unlawful Assembly 103 Robbery It s definition 60 The Difference betwixt a Robber and a Cut-purse 63 What shall be a taking in case of Robbery and what shall be said a taking from his Person 63 64 65 The Thieves reception only may make a Robbery 64 Routs The description of a Rout. 98 The difference between a Levying of War and committing a great Rout c. 100 101 Rumours The punishment before the Conquest and what since of those that are authors of false Rumours 110 They were heretofore very dangerous to our Kingdom Ib. Se Defendendo What Homicide se defendendo is 44 Where a Man ought to give back to prevent Homicide where not 45 46 Sacrilege 68 69 70 Striking in the Kings Court. A diversity betwixt a stroke in or before the Courts of Justice and the Kings Courts where His Royal Person resideth 99 Where to strike in Westminst Hall or the Kings Palace is a great Misprision the punishment of it 97 98 Theft The Etymology of the word Furtum 55 Its Definition Ib. Forbidden by the Law of Nature Ib. The several sorts of Theft Ib. Treason It s derivation and how divided 3 Violation of Royal Majesty a most abominable thing 75 76 To compasse or imagine the death of the King High Treason 76 What are sufficient overt Acts to prove the imagination of the Kings death Ib. 77 In every rebellion by Interpretation of Law there is a machination against the Life of the King 77 A diversity betwixt Treason and Felony 78 Where words or Writing are sufficient overt Acts of Compassing the Kings death Ibid. Where words may make a Heretique but not a Traytor 80 No words are Treason unless made so by some particular Statute Ib. No Treason at this day but what is made by the Stat. of 25 E. 3. Where to set a figure to know how long the King shall live or Reign is no Treason Ib. Where to practise to depose the King to imprison him or to take him into their power shall be Treason 76 77 The compassing or imagining the death of the Queen or Prince is High Treason 81 Where slaying the Chancellor c. shall be High Treason Ib. Carnal knowledge of the Kings Consort the Kings Eldest Sons Wife or of the Kings Eldest Daughter Treason Ib. What shall be said Levying of Wartomake it Treason 82 83 To go in Warlike manner with a multitude to assault a Privy Councellor at his House is Treason Ibid. The breaking of a Prison wherein Traitors be in Durance and causing them to escape is High Treason though the Parties did not know there were any Traitors there Ib. There must be Levying of War de facto to make it Treason Ib. What shall be said an adhering to the Kings Enemies to make a Treas within the Stat. of 25. E. 3. 83 84 Where a conspiracy with a Foreign Prince shall be Treason and where not 84 85 The aiding and succouring a Rebel beyond Seas is no Treason Ibid. Who shall be said Enemies and who Traitors Ibid. To counterfeit the Great-Seal or Mony is Treason Ib. Forging the Kings Coyn without uttering it is High Treason 85 86 Bringing into the Realm counterfeit Coyn High Treason 87 By the Antient Law a Mad-Man might be guilty of High Treason 88 Where a Non compos mentis cannot be guilty of High Treason at this day Ib. What Aliens may commit Treason Ib. Where the killing of an Embassador was adjudged High Treason 89 An Embassador shall loose the Priviledges of an Embassador for committing High Treason Ib. A Foreign Prince by residing here may commit Treason 90 91 The Judgement in Treason for Counterfeiting Mony 86 Verdict The signification and derivation of the word 133 Several kinds of Verdicts Ibid.
if A. give B. Resp such a stroke as he felleth him to the ground B. draweth his knife and holds it up for his own defence A. in hast meaning to fall upon B. 44 E 3 44 3 E 3 Cor 286 Co 3 Inst f. 54 to kill him falleth upon the knife of B. whereby he is wounded to death he is Felo de se For B. did nothing but that which was lawful in his own defence Et vim vi defendere sayes the civil Law omnes leges omnicque jura permittunt D. 9.2 45 4. Whether the goods of Felo de se be forfeited before it be found of Record that he is Felo de se Qu 3 No Goods be forfeited Resp untill it be lawfully found by the Oath of Twelve men that he is Felo de se Plowd fol 360 b. And this doth belong to the Coroner super visum Corporis to enquire thereof and if it be found before the Coroner super visum Corporis that he was Felo de se the Executors or Administrators of the dead shall have no Traverse thereunto Co Lit f 114 ab l 5 f 109. And this is the reason that no man can prescribe to have Felons goods because they are not forfeited untill it be found of Record that he is Felo de se How a Felo de se shall be enquired of Qu 4 where the body cannot be found If a man be Felo de se Resp and is cast into the Sea or otherwise so secretly hidden as the Coroner cannot have the view of the body Hill 37 Eliz in the Kings-Bench by the whole Court in the Case of one Laughton of Cheshire and by consequence cannot enquire thereof In this case it may be inquired thereof by the Justices of Peace of that County for they have power by their Commission to inquire of all Felonies But if it be found before them the Executors or Administrators of the dead may have a Traverse thereunto but not to the Indictment taken before the Coroner super visum corporis as before is said Whether a joynt Tenant of Chattels personals Qu 5 becoming Felo de se doth forfeit the whole There is a diversity between Chattels personals in Action Resp 8 E 4 4 7 E 4 7 a Plowd Com 259 b and in possession for if a debt be owing to two unless it be in case of Joynt-Merchants and the one is Felo de se he doth forfeit the whole but otherwise it is of goods in possession for there he forfeiteth but his part Whether a debt upon a bare Contract be forfeitable Qu 6 If a man that is Felo de se has a debt upon a bare contract and not upon specialty Resp Dyer 262 a this shall not be forfeited unto the King Thus much of Felo de se 2 Of Murder in respect of another Bracton defineth this kind of Murder to be Homicidium quod nullo praesente Lib 3 c 15 nu 1 de Corona Britton c 6 nullo sciente nullo audiente nullo vidente clam perpetratur And of the same mind is Britton whose words are Murdre est occision de home disconu feloniousment fait dount home ne poit scaver per qui ne per quex As also Fleta Est murdrum occulta hominum occisio Lib 1 c 30 a manibus hominum nequiter perpetrata que nullo sciente vel vidente facta est preter solum Interfectorem suos coadjutores fautores yet Fleta saith also that it was not murder except it were proved that the party slain were English and no stranger But as Stamford saith the Law in this point hath received an alteration by the Stat. of 14. E. 3. 14 E 3 c 4 And therefore this murder is now otherwise to be defined or described It is when a Reasonable Creature be it man woman child Subject born or Alien persons outlawed or otherwise attainted of Treason Felony or premunire Christian Jew Heathen Turk or other Infidel being under the Kings peace is slain or killed by a man of sound memory and of the age of discretion with malice forethought either expressed by the party or implied by Law Touching the former viz. Malice expressed take these Queries with their Solutions Whether this same malice Qu 1 though it be intended against one it shall be extended towards another This Malice is so odious in Law as though it be intended against one it shall be extended towards another Sol And therefore Bracton's words are siquis unum percusserit cum alium percutere vellet Co Lib 9 Gores Case 81 in felonia tenetur As if A. put poyson into a pot to the intent to poyson B. and set the same in a place where he supposeth B. will come and drink thereof and by accident one C. unto whom A. hath no malice cometh and of his own will taketh the pot and drinketh thereof of which poyson he dyeth This is murder in A. for the Law doth couple the event with the intention and the end with the cause But herein is a diversity between the principal and the Accessory For if A. command B. to kill I. S. and B. killeth I. D. mistaking him for I. S. this is murder in B. because he did the Act which sprang out of the Root of malice Plowd Com Saunders Case but A. is not Accessory because his own commandment was not pursued But on the other side if A. command B. to kill I. S. by poyson and he doth it by violence as by weapon sharpe or blunt Gun Cross-bow Crushing c. in this case notwithstanding the fact be not executed according to the mean prescribed yet A. is Accessory nevertheless for the commandment was to kill which ensued though the mean was not followed Whether killing a man by poyson be more detestable than by any other means Qu. 2 To kill a man by poyson sayes Coke Sol is the most detestable of all because it is most horrible and fearful to the nature of man and of all others can be least prevented either by Manhood or providence This offence was so odious 22 H 8 c 9 that by Act of Parliament it was made High Treason and it inflicted a more grievous and lingring death than the common Law prescribed viz. That the Offendor shall be boyled to death in hot water upon which Statute Margaret Davy a young woman was attainted of High Treason for povsoning her Mistress and some others Anno 33 H 8 was boyled to death in Smithfield the Seventeenth of March in the same year But this Act was afterwards repealed by 1. E. 6. c. 12. and 1. Mar. c. 1. Having given you the words of Sir Edward Coke touching poysoning I shall mention something in the civil Law concerning it Plus est hominem extinguere veneno Cod 9 1 8 quam occidere gladio For Clam interficere sayes Gothofredus on the Text gravius est quam palam
Verdict was found which was removed into the Kings Bench by Certiorari Cro 2. part â— Royleys case 296. whereupon the case was found to be such that William Royley Son of the said Royley fighting with the said Derman and the said Derman beating him so as his Nose bled he thereupon went to his Father telling and complaining unto him of that Battery whereupon the Father instantly went into the field and finding Derman called him Villein and other opprobrious terms and struck him with a little cudgel of which stroke he afterwards dyed and whether that were murder or only man-slaughter they doubted and prayed the discretion of the Court and all the Court Resolved that it was but man-slaughter for he going upon the complaint of his Son not having any malice before and in that anger beating him of which stroke he dyed the Law shall adjudg it to be upon that sudden occasion and stirring of Blood being also provoked at the fight of his Sons blood that he made that Assault and will not presume it to be upon malice unless it be found And although the distance of the place where his Son complained was a mile it is not material being all upon one passion So if one hear that his Brother Cousin or Servant is fighting upon a sudden occasion and he go to the place where they are fighting although a mile or more distant and finding the Adversary fights with him and kills him it is not Murder but Manslaughter and being before the general Pardon was discharged thereby Thus much of Man-slaughter that is not of malice prepensed but yet Felony 3. Of Se Defedendo that is Voluntary and not Felony Se Defedendo is voluntary Homicide and yet being done upon an inevitable occasion is no Felony as if A. be Assaulted by B. and they fight together and before any mortal blow given A. giveth back until he cometh to a hedg wall or other straight beyond which he cannot pass and then in his own Defence killeth the other this is voluntary and yet no Felony and the Jury that find it was done Se defedendo ought to find the special matter But yet there are some Cases wherein a man is bound to give back as 1. Fleta lib. 1. c. 23. Co. 3. Inst 56. If A. Assault B. so fiercely and violently and in such a place and in such a manner as if B. should give back he should be in danger of his life he may in this Case defend himself and if in that Defence he killeth A. it is Se Defedendo because it is not done Felleo animo and consequently Justifiable with our Law dos Concur the Law Imperial D 1.7 3. Jure hoc evenit ut quod quisque ob tutelam Corporis sui fecerit D. 47.9 3.7 jure fecisse existimetnr Non injuria fecit qui so tueri voluit cum alias non posset 2. Co. lib. 5. Semaynts case 21. 1 H 7. 39 Co. 3. Inst 56. If a Thief offer to Rob or Murder B. either abroad or in his House and thereupon Assault him and B. defend himself without any giving back and in his Defence killeth the Thief this is no Felony for a man shall never give way to a Thief c. neither shall he Forfeit any thing and so it is declared by the statute of 24 H. 8. c. 5. One Cooper being Indicted in the County of Surrey of the murder of one W. L. in Southwark he pleaded Not Guilty Cro. 3. part Cowpers case 554 and upon his Arraignment it appeared that the said Cooper being a prisoner in the Kings Bench and lying in the House of one Anne Carrick who kept a Tavern within the Rules the said W. L. at one of the clock in the Night assaulted the said House and offered to break the staple thereof and swore he would enter the House and slit the Nose of the said Anne Carrick because she was a Bawd and kept a Bawdy-House and the said Cooper disswading him from these Courses and reprehending him he swore that if he could enter he would cut the said Coopers Throat and he brake a window in the lower Room of the House and thrust his Rapier in at the window against the said Cooper who in defence of the House and himself thrust the said W. L. into the eye of which stroak he dyed The Qâ—estion was whether this were within the Statute of 24 H. 8. and the opinion of the Court was that if it were true that he brake the House with an intent to commit Burglary or to kill any therein and a party within the House although he be not the Master but a Lodger or Sojourner therein kill him who made the Assault and intended mischief to any in it that it is not Felony but excusable by the Statute of 24. H. 8. which was made in the affirmance of the Common Law wherefore the Jury were appointed to consider of the circumstances of the Fact and they being a substantial Jury of Surrey found the said Cooper not Guilty upon the Indictment whereupon he was discharged 3. 22 Ass pl. 55. If a prisoner assault the Goaler the Goaler is not by Law inforced to give back but if in defence of himself he kill the prisoner this is no Felony 4. 3 E. 3. Cor. 290. If any Officer or Minister of Justice that hath lawful Warrant and the party assault the Officer or Minister of Justice he is not bound by Law to give back but to carry him away and if in execution of his Office he cannot otherwise avoid it but in striving kill him it is no Felony Note if men tilt or turney in the presence of the King or if two Masters of Defence playing their prizes kill one another this is no Felony 11 H. 7.23 a. Hobarts Reports Weaver v. Ward f. 134. And the reason given is for that in Friendly manner they contend to try their strength and to be able to do the King service in that kind as occasion should be offered Hitherto of Homicides that be voluntary and no Felony whereof some be in respect of giving back inevitably in defence of himself upon an assault of Revenge and some without any giving back c. I now proceed to that Homicide that is not Felony neither fore-thought nor voluntary and this we call Man-slaughter by misadventure or Chance-medley 3. Of Homicide by misadventure Chancemedley or per Infortunium Co. Litt. 287.6 is when one is slain casually and by misadventure without the will of him that doth the Act whereupon death ensueth 11. H. 7.23 a. 21. H. 7 28. a. 6. E. 4.7 Or Homicide by misadventure is when a man without any evil intent doth a lawful thing or that is not prohibited by Law and another is slain or cometh to his death thereby as if one shoot at Butts or at pricks and kill a man by swarving his hands this is no felony Bract. l. 3. c. 4. n. 3.