carriage being ill beloved in the Country was found Guilty but reprieved by the Judges and hearing the Lord Treasurer had a Secretary of his Name applied himself to him promising to give him all his Estate having no Children if his Lord would bring him out of the danger he was in which by his power with the King he did and the Secretary within a short time after by the others death enjoyed an ample Estate Stewes and Brothel-Houses KING Henry VIII suppressed all the Stews or Brothel-Houses which long had continued on the Bank-side in Southwark and those infamous Women were not buried in Christian Burial when they were dead nor permitted to receive the rites of the Church whilst they lived This was by Proclamation under the Great Seal 30 Martii 37 H VIII Before the Reign of H. VII there were Eighteen of these Houses and that King for a time forbad them But afterwards Twelve only were permitted and had Signs painted on their Walls as The Cardinal's Hat The Boar's Head The Cross Keys c Stow. and 3 Inst 205. Many wicked and common Women had seated themselves in a Lane called Water-Lane next to the House of the Friers Carmelites in Fleet-street this being known King Edw. III. to the end these Friers might perform their Vows one of which was To live in perpetual Chastity took order for removing of these Women ibid. So odious and dangerous was this Vice the fairest end whereof is Beggery that Men in making of Leases of their Houses did add an express Condition That the Lessee c. should not suffer harbour or keep any Feme putiene within the said Houses ibid. 206. Nota Tho' Adultery and Fornication be punishable by the Ecclesiastical Law yet the keeping of a Bawdy-House being as it were a Common Nusance is punishable by indictment at the Common Law by Fine and Imprisonment ibid. Accessary IF I. S. counsel or command one to kill a Man and he kill another or to burn one Man's House and he burn another's or to steal a Horse and he steal a Cow or to steal a black Horse and he steal a white one or to steal a Goldsmith's Plate from him going to such a Fair and he go to his Shop in Cheapside and rob him there and break open his House to do it in these Cases the Counsellor shall not be Accessary because this is another Felony Plowd 475. But if one command a Felony and it be done in another Fashion Time or Place only than it was commanded he may be Accessary to it As if one bid another to rob I. D. on Shooters-Hill and he does it on Gads-Hill or to rob him one day and he does it another day or to do it himself and he does it by another or to kill him by Poyson and he does it by a Sword in all these Cases he shall be an Accessary ibid. See Stamf. 1. 45. If one counsel a Woman to murder the Child in her Body and after the Child is born alive and then she murders it in the absence of him that gave her the Counsel in this case he is an Accessary Dyer 186. Plowd 475. One Saunders had Poyson given him by another to poyson his Wife the Husband gave it to his Wife in a roasted Apple who eat part of it and gave the rest to her Daughter being an Infant the Wife recovered but the Child died and it was held That he that gave it for the Wife was not accessary to the murder of the Daughter For the Consent must not be extended farther than it was given Plowd 474. Saunder's Case Yet if I perswade or command one to go and beat another Man only and he do beat him and kill him by this I am made Accessary not only to the Beating but to the Murder for I commanded the unlawful Act which caused his death So it is Murder to kill one tho' the Malice be against another as if I strike at A. and kill B. because I had a malicious and felonious intent Felony to cut out Tongues Eyes c. BEFORE the Statute of 5. H. IV. cap. 5. which makes it Felony to cut out the Tongue or put out the Eyes of any of the King's Subjects of malice prepensed the mischief was that when one had been beaten wounded or robbed the Misdoers to the end the Party grieved might not be able to accuse them cut out their Tongues or put out their Eyes pretending the same to be no Felony which is therefore ordained and established to be so by this Act which has so terrified offenders that where before it was every days practice now it is very rarely done See 3 Inst 62. It extends not to cutting off Ears which is no Felony as appears by the Stat. of 37 H. VIII cap. 6. The offender had the benefit of his Clergy but that is now taken away by Stat. 22 and 23 Car. II. cap. 11. which enacts that if any Person on purpose and of malice fore-thought and by lying in wait shall unlawfully cut out or disable the Tongue put out an Eye slit the Nose cut off a Nose or Lip or cut off or disable any Limb or Member of any Subject of his Majesty with intention in so doing to Maim or Disfigure him in any of these Manners he is declared a Felon without benefit of Clergy But Note by this Act it is provided that he shall forfeit neither Lands Goods or Chattels The cutting off a Man's Privy Members was Felony by the Common Law for Bracton lib. 3. fol. 144. b. says Quid dicitur si quis alterius virilia absciderit illum libidinis causa vel convitii castraverit tenetur sive hoc volens fecerit vel invitus sequitur poena aliquando capitalis aliquando perpetuum exilium cum omni bonorum ademptione Agreeable to this is the Record in Bracton's time viz. Henricus Hall A. uxor ejus capti detenti sunt in Prisonâ de Evil-chester eo quod rectati fuerunt quod ipsi absciderunt virilia Johannis Monachi quem idem Henricus deprehendit cum praedictâ A. uxore ejus c. But Fleta says lib. 1. cap. 38. Si quis Castratus fuerit talis pro Mahemiato poterit adjudicari And so was the Law holden in my Lord Coke's time as he says 3 Inst 63. and 118. Where an Attaint lies tho' every word of the Verdict be true A MAN shall have an Attaint in some special Case where every Word of the Verdict is true As if one hath had Common Appendant to his Land time out of mind and brings an Assise of the Common and makes Title that he hath had Common time out of mind c. without speaking of the Appendancy and it is found for him The Defendant shall have an Attaint for the Plaintiffs Title is for Common in Gross and not Common Appendant yet the words of the Verdict are true that he hath had Common time out of mind c. but not
at Rovers or at a Bird or hewing a Tree and the Hatchet-head flies off or a School-Master in reasonable manner beating a Scholar or a Father his Son or a Master his Servant and Death ensues it is Chancemedley Dalt 351. 352. Quaere If a Man beat his Wife for Correction only and she die thereof King William Rufus was shot by accident in New Forest by Sir Walter Tyrel And in the Reign of King James I. Arch-Bishop Abbot a Man of a holy and unblameable Life medling with edg'd Tools that he used not to handle in his Study by a sad accident killed a Keeper with a forked Arrow as he was shooting at a Deer where-upon he retired to Guilford in great perplexity but the King granted out a Commission to enquire whether casual Homicide did make the Arch-Bishop irregular and in the disquisition of it he found many Friends that restored him to his Palace Wilson's King James 198. Buggery or Sodomy BUGGERY is a detestable and abominable Sin not to be named amongst Christians committed by carnal Knowledge against the Ordinance of the Creator and Order of Nature by Mankind with Mankind or with brute Beasts or by Woman-kind with brute Beasts 3 Inst 58. Bugeria is an Italian Word and signifies this description and it was complained of in Parliament that the Lombards Italians had brought into the Realm the shameful sin of Sodomy inter Christianos non nominandum as it is said Rot. Parl. 50 E. 3. nu 58. The words of the Indictment be Contra ordinationem Creatoris naturae ordinem rem habuit veneream dictumque puerum carnaliter cognovit c. so as there must be penetratio i. e. res in re either with Mankind or with Beast but the least penetration maketh it Carnal Knowledge See the Indictment of Stafford Coke lib. Intr. for committing Buggery with a Boy for which he was attainted and hanged Emissio Seminis makes it not Buggery but is an Evidence in that case of penetration 3 Inst 59. If the Party Buggered be within the age of discretion it is no Felony in him but in the Agent only ib. Note the Words of Stat 25. H. 8. c. 6. that makes this offence Felony are No Person offending c. which extends as well to a Woman as to a Man and therefore if she commit Buggery with a Beast she is a Person that commits Buggery with a Beast to which end the Word Person was used and the rather for that somewhat before the making of this Act a great Lady had committed Buggery with a Baboon and conceived by it c. ibid. And of late Years one Hick's was Indicted at the old Baily upon this Statute having suffered a Dog to copulate with her which being fully proved and found by the Jury she was condemned and hanged at Tyburn and the Dog on a Tree by 3 Keeble 800. See Hutton's Rep. 115. the Lord Audley's Case He was Indicted that Deum prae oculis non habens nec naturae ordinem respiciens sed instigatione Diabolicâ motus c. Vi Armis in quendam Florence Fitz-Patrick Yeoman insultum fecit cum eodem felonicè contra naturam rem veneream habuit ipsumque F. c. carnalitèr cognovit peccatumque illud Sodomiticum c. cum eodem F. commisit c. The like Indictment for the same offence with the same Person at another time and being tried by his Peers Twelve of the Lords acquitted him and Fifteen found him guilty and so he had Judgment Felony Rape Burglary IF a Woman kill a Man that assaults her to ravish her 't is not Felony because he comes to commit a known Felony himself Hales Pla. cor tit Felonies If a House be broken and enter'd with an Intent to commit a Rape it is Burglary whether the Intent be executed or not Hales tit Burglary For note Rape was Felony at Common Law then by Stat. Westm 1. c. 13. made but Misdemeanor then by 13 E. 1. c. 34. restored to Felony again Rape is a violent deflouring of a Woman or carnal Knowledge had of the Body of a Woman against her Will. If a Woman at the time of the supposed Rape do Conceive with Child by the Ravisher this is no Rape for a Woman cannot Conceive with Child except she doth consent Dalton's Inst cap. 160. pag. 392. One W. D. was Arraigned in Banco Regis upon an Indictment of the Rape of a Girl of the age of Seven Years Scil. Quod ipsam felonicè rapuit carnalitèr cognovit he pleaded Non Culp but was found Guilty upon the Evidence of several Matrons But note the Court doubted of a Rape in so tender a Child but had she been Nine Years old and more then it might be otherwise Dyer 304. pla 51. Post The Law is That a Wife shall not be endowed unless she be past the age of Nine Years at the time of the Death of her Husband and the reason is Quia Junior non potest dotem promereri neque virum Sustinere Co. Lit. Sect. 36. which perhaps was the ground of the Opinion in the former Case One Woman Principal to the Rape of another IF a Man and a Woman be present with purpose that the Man shall by Violence carnally know the Body of another Woman there also present against her Will and the Man doth the fact in the presence of the other Woman she being present shall be a Principal Ravisher as well as the Man He the Agent and She the Co-adjutant And so one Woman may be a Principal to the Ravishment of another Dod. 138. Dalton 392. cap. 160. To Ravish a Harlot Felony IT is a good Plea in an Appeal of Rape to say That before the Ravishment supposed she was his Concubine as Bracton says And yet to ravish an Harlot against her will is Felony for Licet Meretrix fuerit ante certe tunc temporis non fuit cùm nequitiae ejus reclamando consentire noluit Bract. l. 2. Dalton ubi sup Consent to Rape NOTE Tho' if a Woman prove with Child it is no Rape for that she cannot conceive unless she consent as it was observed before yet if a Man Ravish a Woman who consents for fear of Death this is Ravishment against her Will for that Consent ought to be voluntary and free Dalton ubi sup To Ravish a Woman where she neither consents before nor after or to Ravish any Woman with force tho' she do consent after is Felony and the offender has no benefit of Clergy ibid. 13 E. 1. 34. 6. R. 2. c. 6. But if a Woman be under Ten Years then tho' she do consent before yet by Stat. 18. El. cap. 7. it is a Rape Hales tit Felonies by Stat. Cromp. 47. Dalt 393. By the Statute 6 R. 2. c. 6. both the Ravisher and Ravished where she consents after the fact are dissabled to have or challenge any Inheritance Dower or Joint Estate after the death of her Husband or Ancestor
testimony as strong as that of another Witness Glyn. Ch. J. answered that in his opinion the Dr. had taken as strong an Oath as any of the other Witnesses but that for his own part if himself were to be sworn he would according to the accustomed way lay his Right hand upon the Book The same Answer which he gave before to another Jury 2 Siderf 6. Jews sworn upon the old Testament only ON Evidence to a Jury the Witnesses produced were Jews and sworn upon the Old Testament only Per Cur. a good Oath by 5 Eliz. c. 9. to make Perjury And within the general Words of S. Evangelia so of the Common Prayer-Book that hath the Epistles and Gospels Contra by Windham of a Psalm-Book only 2 Keb. 314. Murder of a Child in the Womb. ONE beats a Woman great with Child and after the Child is born alive with Signs and Bruises in his Body of the said battery and after dies thereof Fenner and Popham held it to be Murder for the difference is where the Child is born Dead and where Alive in the first Case it is not Murder because Non constat whether the Child were living at the time of the Battery or not or if the beating were the cause of it's Death but when it is born Alive and the Wounds appear in his Body and then dies the Batteror shall be arraigned of Murder for now it may be proved whether these Wounds were the cause of the Death or not and therefore if it be found he shall be condemned Goldsb Rep. 176. If a Woman quick with Child take a Potion to kill it and accordingly it is destroyed without being born alive this is a great Misprision but no Felony but if born alive and after dies of that Potion it is Murder Dalt c. 93. Hales tit Felonies Nemo tenetur prodere seipsum A MAN was sued for Incontinency in the Spiritual Court and the Judges there would have him answer upon his Oath if he ever had Carnal Knowledge of such a Woman upon which he prayed a Prohibition and 't was granted for no one is obliged to betray himself in such cases of Defamation but only in causes Testamentary and Matrimonial where no discredit can be to the Party by his Oath Cro. Eliz. 201. Moor 906. 4 Leon. 194. Cullier's Case Dr. Hunt was indicted that being Commissary to the Arch-Deacon of Norwich he caused I. S. to be Summoned before him to compel him to take an Oath concerning Incontinency which touched himself It being referred to the Chief Justices and Chief Baron they certified That where the Knowledge of the matter did belong to the Court Christian they may proceed according to the Civil Law Note the King's Bench was of opinion in this case that the Oath cannot be ministred to the Party but where the Offence is first presented by Two Men. Cro. Eliz. 262. If a Woman be Sued in the Eccl siastical Court upon a Contract of Marriage and enters into Bond to the Court with condition not to Marry or live in Fornication with any one pendente lite she cannot afterwards be examined there upon her Oath whether she be a single Woman for that tends to the Forfeiture of the Obligation 2 Roll. 305. Clifford and Huntley Bastardy IF Husband and Wife continue Man and Wife their whole Lives their Issue cannot be Bastarded by a Divorce after their Death for the Divorce in the Spiritual Court est pro peccatis which cannot be after they are Dead and therefore such Divorce there is only to disinherit the Issue which they cannot do 39 E. 3. 31. b. 32. for by such means any one may be disinherited 31 Ass Pl. 10. Bastardy IF the Wife of an Infant under Fourteen Years has Issue it is a Bastard Noy's Rep. 142. 1 Roll. 359. 1 H. VI. 3. b. If a Wife elope and live in Adultery with another and has Issue yet by our Law the Child is legitimate agreed per Cur. in Edgerton's Case 1 Roll. 358. but the Husband must be within the Four Seas so as by Intendment he may come to her otherwise such Issue is a Bastard But vide 40 E. 16. 3 b. contra If a Feme Covert goes into another County and takes Husband and has Issue by him the first Husband being within the Seas the Issue is legitimate 7 H. IV. 9. b. A Married Man takes another Woman to Wife his Issue by her is Bastard by Common and Civil Law for the second Marriage is void Co. 7. 44. If there be an unlawful Marriage as between Brother and Sister and they have Issue and one of 'em dies before any Divorce had between them the Issue cannot now be Bastarded see Co. 7. 42. Kenn's Case 1 Brownl 42. and 2. Roll. 357. Upon a Motion to stay an Information brought against the Prosecutors of one Brown for a Bastard Justice Twisden said that the Stat. 18 Eliz. cap. 3. shall be taken by equity and that although Bastards are intended Children Born yet the Justices may take security of such as are Big or of reputed Fathers during that time lest they be gone before the Child is born Curia accord ' sed adjornatur Lamb. I. P. 119. 3 Keb. 708. If a Man has Issue by a Woman and after Marries her by our Law the Child is a Bastard yet note such issue shall be called their Child in Law for a Remainder limited to it by that name is good Co. 6. 65. If a Man Marry his Cousin within the degrees the Issue between them is not Bastard until Divorce had for the Marriage is not void as it is where a Husband takes a second Wife living the first and has Issue by her it is a Bastard because the second Marriage is void An Ideot à nativitate may consent to Marry and his Issue shall be legitimate Stile and West 1 Roll. 357. Fine Lease confirmed before it is made yet good A BISHOP made a Lease for Years the second day of May and the Dean and Chapter confirmed it the first of May Catlyne and Southcote held it a good Lease after the Bishop's Death Wray demanded How a Lease could be confirmed before it was made the others answered That the Assent before is a good Confirmation after Owen 33. Vide 2 Roll. 26. Number 30. that if a Parson grant an Annuity and the Patron seals and delivers a Deed of Confirmation before the Grant and after the Grant delivers the Deed again this second Delivery is void for altho' by the first Delivery it took not effect as a Confirmation but was void in operation quod nota yet it was his Deed for he could not plead Non est factum See 8 H. VI. 6. b. and 39 H. 6. 37. b. contra Where the Lord shall have the Land against his own Confirmation LORD and Tenant of a Carve of Land the Tenant has Issue and is attainted of Felony and the King pardons him and after the Lord confirms his Estate and the
them to an Image in a consecrated Church this had made as good a change of the property of my Goods as if I had sold them in a Market overt but if I found the Goods after in the Wrong-doers possession I might take them again 34 H. VI. 10. Co. 10. 91. a. Degg 147. Property in Negroes IN the Case of Butts and Penny 3 Keb. 785. it was resolved by the Court that Negroes are by Usage tanquam bona and shall go to Administrator until they become Christians and thereby they are infranchised This was upon a special Verdict in an Action of Trover the Jury finding that Negroes are usually bought and sold in India So Trover lies for Monkeys because they are Merchandise and valuable without shewing they are tame or reclaimed 2 Cro. 262. Libel for Knave LIBEL for calling one Knave Prohibition lies because in the time of H. VI. Knave was a good Addition Week's Case Trin 12 Jac. B. R. Latch 156. 1 Siderf 149. Attorney made a Knight IF I make I. S. my Attorney and he the Warrant of Attorney still continuing is made a Knight yet the Warrant of Attorney is not determined tho' the Word Knight which is now part of his Name be not in it By Brown Justice Owen's Rep. 31. Creation of a Gentleman A GENTLEMAN is by Descent yet says the Lord Coke I read of the Creation of a Gentleman and thus it was A French Knight came into England and challenged John Kingston Yeoman a good and a Strong Man at Arms but no Gentleman at certain Points and Deeds of Arms c. Unde Rex saith the Record ut dictus Johannes honorabiliùs in praemissis accipiatur ipsum Johannem in ordinem Generosum adoptavit Armigerum constituit caetera honoris Insignia ei concessit 2 Instit 595. and 668. Addition A GENTLEMAN by Reputation that is neither Gentle by Birth Office or Creation but commonly called Gentleman and known by that Name is a sufficient Addition within the Stat. 1 H. V. c. 5. Cater's Case cited 6 Rep. 67. a. But if he is named Yeoman he cannot abate the Writ 2 Inst 668. 'T was moved to quash an Indictment of Forcible Entry because the Addition of the Parties was in English scil Weaver Confectioner c. but the Court over-ruled it for many Persons have been hanged that have had no other Addition in their Indictment Note It is the constant practice to put them in English in Indictments 1 Siderf 101. the King against March c. If a Gentleman by birth be a Mercer or c. and be named so in an Original c. he may abate the Writ for he ought to be named by the degree of a Gentleman because it is worthier than the Addition of any Mystery 2 Inst 668. 669. Wife loses Money at Play OUR Law excludes not the Wife from using her Husband's Goods in common with him which is the reason that a Wife cannot feloniously take her Husband's Goods and tho' she so take 'em and deliver 'em to a Stranger yet no Felony in the Stranger And that if a Feme Covert say of I. S. He stole my Plate out of my Chamber altho' she may not have Plate of her own yet because in common Speech 't is well known that the Wife accounts her Husband's Goods her Goods the Words are Actionable Cro. Car. 52. yet for all this she cannot dispose of her Husband's Goods and therefore 't was adjudged in Stephens his Case that where a Wife played at Cards and lost 40 l. of her Husband's Money that the Husband should recover it again in Trover against the Gamester 1 Siderfin 122. 1 Keb. 340. Quaere what Remedy for the Gamester if he loses to the Wife or will the Law construe it a Gift of the Money to her c. A. takes B's Wife and Cloths her AN Adulterer takes away another Man's Wife and puts her in new Clothes the Husband may take the Wife with her Clothes for it is as it were a Gift of the said Apparel unto her Besides the more worthy thing draws to it things of less worthiness as a base Mine where there is Ore shall be the King 's for the worthiness of the Ore Finch's Law 22 23. Vide Cro. Car. 344. Woman Indicted for copulating with a Dog ONE Hicks was Indicted at the Old Baily on the 12th of July 1677. upon Stat. 25 H. VIII cap. 6. for Buggery having suffered a Dog to copulate with her which being fully proved against her and found by the Jury she was condemned and hanged at Tyburn on the 18th of July following and the Dog on a Tree by 3 Keb. 800. The King and Hicks See Leviticus chap. 18. v. 23. Thou shalt not lie with any Beast to defile thy self therewith neither shall any Woman stand before a Beast to lie down thereto It is Confusion Woman promises never to Marry again A GENTLEWOMAN took her Husband's Death so heavily that she said She would never Marry again but her Son comforted her saying God will provide a new Husband and said he would give her 10 l. to pay 100 l. when she married she accepted the Money and within half a Year after Married whereupon the Son brought an Assumpsit for the 100 l. and this being brought into the Chancery the Master of the Rolls awarded him only 10 l. saying he would give never a Penny more for that it was unreasonable to barr a Gentlewoman from Marriage Owen 34. Vide 2. Keble 865. Bond not to sell his Wifes ' Clothes A MAN was obliged with condition not to sell his Wife's Apparel and held a good Bond tho' it was moved to be against Law and contrary to the liberty of a Husband so to oblige himself but Coke held it clearly good as if one should oblige himself to a Stranger to pay to his Wife yearly 20 l. this without question is good 1 Roll. Rep. 334. Smith and Watson's Case Deed takes effect from the Delivery not the Date IF A. covenant that B. shall have all his Trees now standing this refers to the Trees standing at the time of the delivery and if any be felled after the Date and before the delivery he has no remedy for them by Flemming 2 Cro. 264. Vide Dyer 139. a. and 2 Roll. 21. In an Action of Debt upon a Bond the Defendant pleaded Deins Age the Case was That when the Obligation was Sealed and Delivered the Defendant was of full Age but at the time when the Bond bore date he was under Age 't was ruled that the time of making the Bond was when it was sealed and not when it bore date 1 Brownl 30. 31. Deed enrolled the Day of the Date yet good THE Stat. 27 H. VIII c. 16. says expresly That Bargains and Sales to an use of Inheritance of Freehold must be by Deed indented and enrolled within six Months after the date thereof c. yet it has been held that a Deed may be enrolled