not be such a Discretion as confounds all Discretion but they must weigh the Circumstances and go according to Law and Judgment and certainly the law intended such Bail if any be accepted should be bound Body for Body for otherwise it seems no security And therefore many wise men wondered the other day when Count Conning smark was Acquitted on the Indictment for the Barbarous Murder of Esquire Thynn that he was suffered to go so soon abroad for being a Stranger he was never like to come again into Enggland and being so rich what values he to discharge the Forfeitures of his Sureties Recognizances which likewise may be easily Compounded At most the Forfeieure is to the King and what is it that to the next Heir or Kinsman He is by this means Outed of his Legal Remedy to Revenge the Blood of his near and dear Relation Sed haec Obiter The form of an Appeal of Murder I C. Hic Instanter Appellat W. E. c. In English thus I here instantly Appeals W. F. of the death of his Brother H. C. For that whereas the aforesaid H. was in the Peace of God and the King at Tonbridge in the County of Rent the twenty eighth day of March in the thirty fourth year of the Reign of our Lord Charles the Second c. at seven a Clock in the Evening of the same Day cama the said W. F. as a Felon of our Lord the King in a premeditated Assault with Force and Arms c. And upon him the said H. C. then and there felonionsly an Assault did make and with a certain Sword of the price of twelve pence Which he then and there in his Right Hand did hold the aforesaid H. upon his Head did strike and one mortal wound of two Inches long in forepart of his Head even unto the Brain to the said H. did then and there Feloniously give of which said wound the said H for three days then next following did Languish and then viz. the such a day of such a month he there died or if the case be so Instantly died And so the said W. H. as a Felon of our Lord the King the aforesaid H. Feloniously did Kill and Murder against the Peace of our said Lord the King his Crown and Dignity And that this he did wickedly and as a Felon against the Peace of God and our Lord the King the aforesaid osters that the same be detained as the Court of our Lord the King shall think meet Diversity of Courts and Jurisdictions Written in the time of King Hen. 8. 1. Note That a women cannot now bring an Appeal for the death of any other Ancestors being baried there from by Magna Charta Cap. 34. whereas as you have heard it is provided that none shall be taken or Imprisoned upon the Appeal of any woman for the death of any Person but only of her Husband But she may at this day bring an Appeal of Robbery c. For wherein she is not by that Statute restrained Coke 2d Instit fol. 68. 2. The women that brings an Appeal for the death of her Husband must be his Wife not only de Facto but de Jure not only called and reputed or cohabiting with him but actually and legally Married to him and of such a Wife the Antient-Law-Books speaks de morte viri Inter Brachia sua Interfecti the Husband is killed within her Arms. that is whilst he was legally in her possession but that the Appellant and the person killed were not ever lawfully coupled in Matrimony is a good Plea in an Appeal 3. This Right of Appeal for the death of her Husband is annexed to her Widdow-hood as her Quarentine is and therefore if the Wife of the Dead Marry again her Appeal is gone even altho the second Husband should die within the year day after the Murder of the first For she must all the while before the Appeal be brought continue Faemini viri sui his Widdow upon whose death the Appeal is brought furthermore if she bring the Appeal during her Widdow-hood and take a Husband whilst it is depending the Appeal shall Abate that is be out of doors for ever Nay if on her Appeal she hath Judgment against the Defendant if afterwards she take an Husband before the Defendant be Hanged she can never have Execution of death against him 4. By the Statute of Glocest. made in the sixth year of King Edw. 1. Cap. 9. It is Enacted that if an Appeal set forth the Deed the year the day the hour the Reign of the King and the Town where the Deed was done and with what Weapon the Party was slain the Appeal shall stand in effect and shall not be abated for default of fresh Suit if the party shall Sue within the year and the day after the Deed done 5. As for the year and day here mentioned it is to be acconnted for the whole year according to the Calendar and not for twelve Months at twenty eight days to the Month. So likewise the day intended is a Natural day And this year and day must be accounted after the Felony and Murder Committed Now if a man be Mortally Wounded on the first day of May and thereof Languishes to the first day of June and then dies the Question here arises whether the year and the day allowed for bringing the Appeal is to be reckoned from the giving the Wound or the time of Death Some have held the former For that the Death ensuing hath Relation to it and that is the Cause of the Death and the Offender did nothing the day of the Death But the truth is the year and day shall be accounted only from the first of June the day of the Death for before that time no Felony was Committed and thus it hath often been resolved and Adjudged and the reason abovesaid grounded upon Relation which is a Fiction in Law holdeth not in this Case Coke 2. Ingit fol. 320. 6. If an Appeal of Murder be brought and depending the Suit and after the Year and Day is elapsed one become accessary to the Murder the Plaintiff shall have an Appeal against him after the Year and Day past after the Death but it must be brought within the Year and Day after this new Felony as accessary 7. If a Man be Indicted for Murder and Convicted only of Man-slaughter and have the Benefit of his Clergy it seems the Wife and Heir cannot afterwards bring their Appeal Touching which the Lord Cook 3 Instit Fo. 131. cites a Case in these words Thomas Burghe Brother and Heir of Henry Burghe brought an Appeal of Murder against Thomas Holcroft of the Death of the said Henry The Defendant pleaded that before the Coroner he was Indicted of Man-slaughter and before Commissioners of Oyer and Terminer he was upon that Indictment Arraigned and confessed the Indictment and prayed his Clergy and thereupon was Entred Curia advisare vult the Court will consider
no new Laws bind the People of England but such as are by common consent agreed on in that great Council By the second He has a share in the Executive part of the Law no Causes being Tryed nor any man Adjudged to lose Life Member or Estate but upon the Verdict of his Peers or Equals his Neighbours and of his own Condition these two Grand Pillars of English Liberty are the Fundamental Vital Priviledges whereby we have been and are preserv'd more free and happy than any other People in the World and we trust shall ever continue so For whoever shall design to Impair Pervert or Undermine either of these do strike at the very Conisttution of our Government and ought to be Prosecuted and Punished with the utmost Zeal and Rigour To cut down the Banks and let in the Sea or to Poyson all the Springs and Rivers in the Kingdom could not be a greater Mischief for this would only affect the present Age but the other will Ruine and Enslave all our Posterity But besides these General Paramount Priviledges which the English are Estated in by the Original Constitution of their Government there are others more particularly declared and expressed in diverse Acts of Parliament of which several of the most remarkable and usefull are here presented at large to the Reader with some Notes thereupon for his better understanding of the same MAGNA CHARTA or the Great Charter made in the ninth Year of King Henry the Third and confirmed by King Edward the First in the eight and twentieth Year of his Reign EDward By the Grace of God King of England Lord of Ireland and Duke of Guyan To all Arch-Bishops Bishops c. We have seen the great Charter of the Lord Henry sometimes King of England our Father of the Liberties of England in these Words HEnry By the Grace of God King of England Lord of Ireland Duke of Normandy and Guyan and Earl of Anjou To all Arch-Bishops Bishops Abbots Priors Earls Barons Sheriffs Provosts Officers and to all Baysliffs and other our Faithful Subjects which shall see this present Charter Greeting Know you that We unto the Honour of Almighty God and for the Salvation of the Souls of our Progenitors and Successors Kings of England to the Advancement of Holy Church and Amendment of our Realm of our meer and free Will have Given and Granted to all Arch-Bishops Bishops Abbots Priors Earls Barons and to all Free-men of this our Realm these Liberties following to be kept in our Kingdom of England for ever CHAP. I. A Confirmation of Liberties FIrst We have granted to God and by this our present Charter have confirm'd for Us our Heirs for ever That the Church of England shall be free and shall have all her whole Rights and Liberties Inviolable 2 We have granted also and given to all the Free-men of our Realm for Us and our Heirs for ever these Liberties under-written to have and to hold to them and their Heirs for ever CHAP. II. The Relief of the Kings Tenant of full Age. IF any of our Earls or Barons or any other which Hold of Us in Chief by Knights Service dye and at the time of his Death his Heir be of full Age and oweth to us Relief he shall have his Inheritance by the old Relief that is to say the Heir or Heirs of an Earl for a whole Earldom by one hundred pound the Heir or Heirs of a Baron for an whole Barony by one hundred marks the Heir or Heirs of a Knight for one whole Knights Fee one hundred shillings at the most And he that hath less shall give less according to the old Custom of the Fees CHAP. III. The Wardship of an Heir within Age The Heir a Knight BUt if the Heir of any such be within Age his Lord shall not have the Ward of him nor of his Land before that he hath taken of him Homage 2. And after that such an Heir hath been in Ward when he is come to full Age that is to say to the Age of one and twenty Years he shall have his Inheritance without Relief and without time so that if such an Heir being within Age be made Knight yet nevertheless his Land shall remain in the keeping of his Lord unto the Term aforesaid CHAP. IV. No wast shall be made by a Guardian in Wards Lands THE Keeper of the Land of such an Heir being within Age shall not take of the Lands of the Heir but reasonable Issues reasonable Customs and Reasonable Services and that without destruction and waste of his Men and his Goods 2. And if we commit the Custody of any such Land to the Sheriff or to any other which is answerable unto us for the Issues of the same Land and he make destruction or waste of those things that he hath in Custody we will take of him amends and recompence therefore 3. And the Land shall be committed to two lawful and discreet men of that Fee which shall answer unto Us for the Issues of the same Land or unto him whom we will Assign 4. And if we give or sell to any man the Custody of any such Land and he therein do make destruction or waste he shall lose the same Custody And it shall be Assigned to two lawful and discreet men of that Fee which also in like manner shall be answerable to Us as afore is said CHAP. V. Guardians shall maintain the Inheritance of their Wards And of Bishopricks THe Keeper so long as he hath the Custody of the Land of such an Heir shall keep up the Houses Parks Warrens Ponds Mills and other things pertaining to the same Land with the Issues of the said Land And he shall deliver to the Heir when he cometh to his full Age all his Land stored with Ploughs and all other things at the least as he receiv'd it All these things shall be observed in the Custody of Arch-Bishopricks Bishopricks Abbeys Priories Churches and Dignities vacant which appertain to Us Except this that such Custody shall not be sold CHAP. VI. Heirs shall be Married without Disparagement HEirs shall be Married without Disparagement CHAP. VII A Widow shall have her Marriage Inheritance and Quarentine The Kings Widow A Widow after the Death of her Husband Incontinent and without any difficulty shall have her Marriage and her Inheritance 2. And shall give nothing for her Dower her Marriage or her Inheritance which her Husband and She held the day of the Death of her Husband 3. And She shall tarry in the chief House of her Husband by forty days after the Death of her Husband within which days her Dower shall be Assigned her if it were not Assigned her before or that the House be a Castle 4. And if she depart from the Castle then a competent House shall be forthwith provided for her in the which She may honestly dwell until her Dower be to her Assigned as it is aforesaid And She shall have in the
the Chancellor without Warrant is no Treason Fixing a new Great Seal to another Patent is a great Misprision but no Treason being not a Counterfeiting within this Act But Aiders and Consenters are within this Act. The Counterfeiting of the Privy Signet or Sign Manual is no Treason within this Act but made by the Statute 1. Mar. c. 6. 10. Treason concerning Coin is either Counterfeiting the Kings Coin and this was Treason at Common Law and Judgment only as of Pettit Treason but Clipping c being made Treason by subsequent Statutes the Judgment is to be Drawn Hang'd and Quarter'd Money here extends only to the Proper Money of this Realm But now by the 1. M. c. 6. Forging or Counterfeiting Money made current by Proclamation is High Treason and by 14. Eliz. c. 3. Forging of Forreign Coin not current here is Misprision of Treason in the Forgers their Aiders and Abettors And not that the bare Forging of the Kings Coin without Uttering is Treason The second Offence concerning Money here declared to be Treason is If any person bring into this Realm Counterfeit Money Where note 1. It must be Counterfeit 2. Counterfeited to the similitude of English Money 3. It must be brought from a Forreign Realm and therefore not from Ireland 4. It must be brought knowingly 5. Brought and not barely uttered here But by the Statute De Moneta if false or clipt money be found in a persons hands and he be suspitious he may be Arrested till he can clear himself 6. He must merchandize therewith that is make payment thereof 11. As this Statute leaves all other doubtful matters to be declared Treason in Parliameâ—t but not to be punish'd as such till so declared So in succeeding Kings Reigns abundance of other matters were declared Treason which being found very grievous and dangerous by the Statute of 1 Mar. Cap. 1. it is Enacted That thenceforth no Act Deed or Offence being by Act of Parliament or Statute made Treason Petty Treason or Misprision of Treason by Words Writing Ciphering Deeds or otherwise however shall be taken had Deemed or Adjudged to be High-Treason Petty Treason or Misprision of Treason but only such as be declared and expressed to be Treason Petty Treason or Misprision of Treason by this Statute of the 25. Edw. 3. 12. The Offences made High Treason by Statutes since this first of Mary are as follow Refusing the Oath of Supremacy upon second Tender is Treason by 5. Eliz. Cap. 1. but no Corruption of Blood so likewise is Extolling the Power of the Bishop of Rome a Premunire and the bringing in of Bulls or putting them in Execution or Reconciling to the Church of Rome is Treason by the same Statute Bringing in Dei's is a Premunire 23. Eliz. C. 1. Also absolving Subjects from their Obedience or Reconciling them to the Obedience of Rome is Treason 27. Eliz. Cap. 2. So is it likewise for a Priest coming into England not submiting in two days The like for English men in Forreign Seminaries But Besides these Old Treasons since the happy Retâ—uration of His Majesty The zealous regards his Subjects in Parliament had for the safety of his Sacred Person and Government thought sit to prefer and make the Statute following Anno Regni Car. 2. Regis decimo tertio CAP. I. An Act for Safety and Preservation of His Majesties Person and Government against Treasonable and Soditious Practises and Attempts THe Lords and Commons Assembled in Parliament deeply Weighing and Considering the Miseries and Calamities of well high twenty years before your Majesties Happy Return and withâ—l Reflecting on the Causes and Occasions of so great and diplorable Confusions do in all humility and thankfulness acknowledge your Majesties incomparable Grace and Goodness to your People in your Free and General Pardon Indempnity and Oblivion by which roar Majesty hath been pleased to deliver your Subjects not only from the Punishment but also from the Reproach of their former Miâ—carringes which unexempted Piety and Clemency of your Majestie hath Enflamed the Hearts of us your Subjects with an ardent desire to express all possible Zeal and Duty in the Care and Preservation of your Majesties Person in whose Honour and Happiness consists the good and welfare of your people and in preventing as much as may be all Treasonable and Sedititious Practises and Attempts for the time to come 2 And because the Growth and Increase of the late Troubles and Disorders did in a very great measure proceed from a multitude of Seditious Sermons Pamphlets and Speeches daily Preached Printed and Published with a Transcendent boldness defaming the Person and Government of your Majesty and your Royal Father wherein men were too much Encouraged and above all from a wilful mistake of the Supream and Lawful Authority whilst men were forward to cry up and maintain those Orders and Ordinances Oaths and Covenants to be Acts Legal and Warrantable which in themselves had not the least Colour of Law or Justice to support them from which kind of Distempers as the present Age is not wholly freed so Posterity may be apt to Relapse into them if a timely Remedy be not provided 3 We therefore the Lords and Commons in Parliament Assembled having duly considered the Premisses and Remembring that in the thirteenth year of the Reign of Queen Elizabeth of ever blessed Memory a right good and profitable Law was made for Preservation of Her Majesties Person do most humbly beseech your most Excellent Majesty that it may be Enacted 4 And be it Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords and Commons in this present Parliament Assembled and by Authority of the same That if any Person or Persons whatsoever after the four and twentieth day of June in the year of our Lord one thousand six hundred sixty and one during the Natural Life of our most Gracious Soveraign Lord the King whom God Almighty Preserve and Bless with a Long and Prosperous Reign shall within the Realm or without Compass Imagine Invent Devise or intend Death or Destruction or any Bodily Harm tending to the Death or Destruction Maim or Wounding Imprisonment or Restraint of the Person of the same our Soveraign Lord the King 5 Or to deprive or depose him from the Style Honour or Kingly Name of the Imperial Crown of this Realm or of any other His Majesties Dominions or Countries 6 To Levy War against His Majesty within this Realm or without 7 Or to move or stir any Forraigner and Strangers with force to Invade this Realm or any other His Majesties Dominions or Countries being under His Majesties Obeysance 8. And such Compassings Imaginations Inventions Devices or Intentions or any of them shall express utter or declare by any Printing Writing Preaching or malicious and advised Speaking being Lawfully Convicted thereof upon the Oaths of two Lawful and Credible Witnesses upon Tryal or otherwise Convicted or Attainted by due Course of Law then every
in good Sureties as Esquires or Gentlemen And that no pardon were granted but by Parliament Thirdly For that the King hath granted Pardons of Felonies upon false Suggestions it is provided that every Charter of Felony which shall be granted at the Suggestion of any the name of him that maketh the Suggestion shall be comprised in the Charter and if the Suggestion be found untrue the Charter shall be disallowed And the like provision is made by the Statute of 5. H. 4. Cap 2. for the Pardon of an Approver Fourthly It is provided that no Charter of Pardon for Murder Treason or Rape shall be allowed c. If they be not specified in the same Charter Statute 13. R 2. Before this Statute of 13. R 2. by the Pardon of all Felonies Treason was Pardoned and so was Murder c. At this day by the Pardon of all Felonies the death of man is not Pardoned These be excellent Laws for direction and for the Peace of the Realm But it hath been conceived which we will not question that the King may dispence with these Laws by a Non Obstante notwithstanding be it General or Special albeit we find not any such Clauses of non Obstante notwithstanding to dispense with any of these Statutes but of late times These Statutes are excellent Instructions for a Religious and Prudent King to follow for in these Cases Vt summae potestatis Regiae est posse quantum velit sic Magnitudinis est velle quantum possit As it is the highest Kingly power to be able to Act what he Wills so it is his Greatness and Nobleness to Will only what he lawfully can Hereof you may Read more in Justice Standford Lib. 2. Cap. 35. in diverse places of that Chapter of his grave Advice in that behalf Most certain it is that the Word of God has set down this undisputable General Rule Quia non profetur Cito Contra malos sententia filii hominum sine timore ullo perpetrant because Sentence against evil men is not speedily Executed therefore the hearts of the Children of men are set in them to do evil And thereupon the Rule of Law is grounded Spes Impunitatis Continuum Affectum tribuit delinquendi the hope of Impunity encourageth Offenders Et veniae facilitas Incentivum est Delinquendi and the facility of obtaining Pardon is an Incentive to Commit Offences This is to be Added that the Intention of the said Act of 13. R. 2. Was not that the King should grant a Pardon of Murder by express Name in the Charter but because the whole Parliament conceived that he would neuer Pardon Murder by special Name for the Causes aforesaid therefore that provision made which was as in other Cases I have observed grounded upon the Law of God Quicunque effuderit humanum sanguinem fundetur sanguis illius ad imaginem quippe Dei creatus est homo nec aliter Expiati potest nisi per ejus sanguinem qui alterius sanguinem effuderit whosoever shall shed mans blood by man also shall his blood be shed because man was Created after the Image of God neither can it be expiated otherwise then by his blood who spilt the blood of another And the words of every Pardon is after the Recital of the offence nos pietate moti c. we being moved with Piety c. But it can be no Piety to violate an express Law of God by letting Murder scape unpunisht Thus Coke whereby we see what opinion he had of such Pardons A brief digression concerning the Nature of APPEALS THis Discourse of Pardons puts us in mind of another kind of Legal Prosecution called an Appeal of which it may be very convenient to give the Reader some brief account You must know then for several Offences for which a man deserveth death and particularly for Murder there are two ways to bring him to Answer for the same one by Indictment which is at the Kings Suit and the other by Appeal which is at the Suit of a Party which is wronged or injured by the Murder as a Woman whose Husband or a Child or Brother whose Father or Brother is Killed Now upon an Indictment if the Offender be found Guilty because it s to be at the Suit of the King it has been said by some may be and too often a Pardon has been obtained tho even That too be against Law as appears by the Premisses But in an Appeal all agree the King can grant no Pardon Nay if a person be tryed by Indictment and Acquitted or Convicted and get a Pardon yet an Appeal may be brought and if he be thereupon Convicted notwithstanding such his former Acquital or Pardon he must be Hanged The word Appeal is derived from the French Verb Appeller to Call because he or she that brings it Calls the Defendant to Judgment but the meaning thereof is all one with An Accusation And is peculiarly in Legal signification applyed to Appeals of Three sorts First an Appeal brought by an Heir Male for some wrong done to his Ancestor whose Heir he is Secondly Of wrong done to an Husband and is by the Wife only if it be for the death of her Husband to be Prosecuted The third is of wrongs done to the Appellants themselvess as for Robbery Rape or Maim Coke 1. Instit Sect. 500. Note that this Appeal must be brought within a year and a day after the Murder is committed For afterwards it cannot be brought at all And antiently it was customary not to bring an Indictment for the King till after the year and the day waiting in the mean time for the Prosecution of the Party but this was found very inconvenient for the Party was frequently compounded with and at the years end the business was forgot and so Offenders escaped Justice And therefore the same was altered by the Statute 3. Hen. 7. Cap. 1. Whereby it is Enacted That the Coroner shall do his Office and the Offenders may be Arraigned at any time within the year at the Kings Suit but if Acquitted yet the party within the year and day should have liberty to bring an Appeal against such person either Acquitted or Attainted if the benefit of the Clergy be not before thereof had And in order thereunto that when any person happened to be Acquitted for the death of a man within the year the Justices before whom he is Acquitted shall not suffer him to go at large but either to remit him again to the Prison or else to let him to Bail after their discretion till that the day and the year be passed that so he may be forth coming to Answer an Appeal if it shall happen to be brought Thus that Statute as to the latter Clause whereof you see the Judges have power in Case of Acquittal to keep the Party in Prison still till the day and year be over Or else to admit him to Bail and tho this be left to their Discretion yet it must