felony neither shall he die for it for others of discretion cannot take example at him A man killeth one that is outlawed of felony this is not felony of death A man that is deafe dumbe and blinde killeth a man this is neither felony manslaughter nor murder causa qua supra A man beateth a woman that is with childe and shee laboureth and the childe is dead borne this is neither murder nor manslaughter A man cutteth a tree and the branches of the tree fall upon I. S. and kill him unknowne to him that cutteth the tree this is not felony for it is not done with a felonious intent A man shooteth at the pricks and killeth a man this is not felony for the marks bee certaine every man ought to keep himselfe off but otherwise it is where the pricks bee not certaine for then hee that shooteth must take heede where hee shootes Two men fight and one of them killeth I. S. being behinde him as hee striketh at his adversary this is not felony because he doth not see him but otherwise it had been if he had seen him A man hath judgement to bee hanged and the Sheriffe doth behead him this is murder A man striketh another downe to the ground and holding his dagger in his hand the other for haste to arise to strike him againe runneth upon his dagger and is killed this is neither murder nor manslaughter in him that held the dagger A man striketh another which dyeth without a yeer and a day it is neither murder nor manslaughter for if hee dyed out of the yeere it shall bee intended hee dyed of the visitation of God and not of the stroke A man impaleth his ground and putteth in his Deere and hath a Keeper to keep them and I. S. commeth through the Parke and hunteth and the Keeper cryeth unto him to yeeld him to the Keeper and hee will not and the Keeper killeth him this is murder per Statutum de malefactoribus in Parcis and it is not materiall be it by day or by night for it is no Park if the Lord have not the Kings Leters Patents A man perceiveth his Father to be sick and under pretence of amity hee carryeth him from Towne to seek Physick and killeth him by importunate carriage this is murder A Physician or Surgeon taketh a man in cure which doth kill him by the insufficient medicine this is not murder nor manslaughter A man that is neither Physician nor Surgeon taketh upon him to know Physick and Surgery and taketh upon him the cure of men and one dyeth for the insufficiency of medicine this is murder A man abjur'd going to his Port or Sanctuary meeteth a man in the high way and killeth him this is murder but hee shall not bee arraigned for it for hee had judgement of death before and hee shall not have another judgement of death before that he have avoyded the first judgement The Prince striketh a man of malice which dyeth of the stroke and the King dyeth this is not felony for by the death of the King the Prince is King and cannot be a felon A Turke or a Jew cometh into England without the Kings licence and I. S. killeth him this is not felony for hee is neither or the faith of Christ nor under the Kings protection I. S. Deane of Pauls and fourteene of the Chapiter steale sheep this is not felony in the Body politick but in their materiall bodies A man cometh to a Park and findeth the Keeper and bindeth him to a tree and gaggs him this is murder if he dye CHAP. IIII. What acts and misdemeanors may be called Robbery and what not and what Felony and what Burglary A Man assaulteth another to rob him and taketh from him but one penny this is robbery and felony for the feare hee putteth the other in A man assaulteth another to rob him and snatcheth at his purse and taketh hold of his girdle and the true man escapeth away with his purse and the thiefe hath but the girdle this is felony A thiefe goeth by the high way and findeth I. S. sleeping and the thiefe taketh out of I. S. his purse 12. d. and leaves him sleeping this is not felony for I. S. was never put in feare of his life A man meeteth his Villein in the night and taketh from him his horse this is no felony for hee may take any thing away from him by way of seisure Lord and Tenant The Lord cometh to the house of the Tenant in the night and taketh from him his bacon or his beefe for rent or service in arrere this was not felony for it was not with a felonious intent A Writ is directed to the Sheriffe to attach I. S. in a personall action and comming in the night findeth I. S. leading his horse in his hand and tacheth I. S. by his horse this is not felony for hee hath colour to take his horse by precept A Tailor receiveth of I. S. cloth to make for him a coat and the Tailor putteth in other lining then I. S. his lining I. S. taketh the coat and lining from the Tailor this is not felony for the lining and the thred bee of the same nature as the principall is which is the coat A man claymeth as heire lowmes after the death of his Father more stuffe then hee ought to have and cometh in the night and taketh them from the Executors by force this is not felony for hee maketh title unto the goods A man meeteth another in the night with a grey-hound in his slip and assaulteth him to rob him of his dog this is felony although the taking of the dog without feare is not felony yet because the party was put in feare of his life it is felony A man cometh into a wood and cutteth and taketh away trees to the value of 20. s. it is not felony for they bee parcell of the Franktenement but otherwise it is if a man steale away trees that bee felled If a man ravish a woman it is felony A man cometh into an house to rob a man and sudden feare taketh him and he departeth without doing any harme this is felony A man cometh to the house of I. S. to arrest one S. for felony and I. S. doth resist him this is felony in I. S. A man is robbed and pursueth the felon and arresteth him and taketh his goods and suffereth the felon to goe this is felony in him that was robbed A man entreth into an house to rob and no body lyeth in the house and hee retireth againe and taketh nothing yet this is burglary and felony A man taketh a flight of Doves in the field this is no felony A man stealeth fish out of my severall ponds to the value of 13. d. this is felony for the Stat. of 22. H. 8. which is revived maketh mention where a
THE READING OF M. ROBERT BROOK SERIEANT of the Law and RECORDER of LONDON Upon the Stat. of MAGNA CHARTA CHAP. 16. LONDON Printed by M. FLESHER and R. YOUNG and are sold by Laurence Chapman and William Coke Anno 1641. The Contents Chap. I. OF high Treason pag. 1 Chap. II. of petie Treason pag. 3 Chap. III. of Murder Manslaughter and what not pag. 4 Chap. IIII. What acts and misdemeanours may bee called Robbery and what not and what Felony and what Burglary pag. 9 Chap. V. Accessaries and good Indictments c. pag. 14 Chap. VI Arraignment of Felons and what pleas they shall have and what not and where they shall bee put to penance and where not and where a man shall bee arraigned twice for one Felony and where ones life shall be put twice in jeopardy for one felony pag. 19. The Reading of Mr. ROBERT BROOKE Serjeant of the Law and Recorder of London upon the Stat. of Magna Charta the seventeenth Chapter CHAP. I. of high Treason INprimis If any man imagine the death of the King or of the Prince or Princesse or of any that is Heire apparent to the Crowne it is high Treason If any keep warre against the King in his Realme it is high Treason by the Stat. of 25. E. 3. If any bee ayders or assistants to the Kings enemies either within the Realme or elsewhere it is high Treason If any affirme by writing or other act that the King is not supreme Head of the Church of England or if any imagine to deprive the King of his estate Royall or of the titles of his Realme it is high Treason If any to whom the Crowne is committed by Act of Parliament usurpe it or demeane it in other manner then is expressed in the Act or will keepe the King from it it is high Treason by Stat. If any man kill the Chancellor or Treasurer or any of the Justices of one Bench or other Justices of Oyer Justices of Assize or of Oyer and Terminer sitting in their Offices it is high Treason If any counterfeit the Kings Seale manuall Privy Seale or his Signet it is high Treason If any countefeit the Kings coyne of this Realm or of any other coyne currant in England or clip wash file round or diminish the said coyne it is high Treason If any man bring false money or counterfeit into England having knowledge of that money to bee counterfeit it is high Treason If any man kill the Kings Messenger in his message it is high Treason If any man kill one that rideth with men to aide the King it is high Treason CHAP. II Of petie Treason IF the Wife kill the Husband or the Husband the Wife or the Servant his Master or Mistris this is petie Treason A woman of the age of thirteene yeeres killeth her Mistris this is petie Treason but shee shall not bee hanged and drawne but burnt The Servant procureth another to kill his Master which killeth him it is not petie Treason in the Servant for the principall is no Traytor and the accessary is no ways cast and so they be both Felons A man beateth his servant which departeth from him and after the end of his terme hee killeth him that was his Master in revenging his old quarrell this is petie Treason for the murder cometh of the malice that began in his service A man marryeth his cousin and she killeth him this is not petie Treason for they were never lawfully marryed A man retaineth J. at S. to bee his Steward of his Courts and hee killeth his Master this is not Treason for hee is no servant that oweth to his Master obedience as is contained in the Statute of 25. E. 3. If an infant of the age of ten yeares marry a wife of the age of nine yeeres and shee killeth her husband this is petie Treason for at that age shee shall bee endowed A man retaining a woman for 40. s. a yeere to bee his Concubine and shee kill him this is no Treason for the retaining was not lawfull and therefore shee was not his servant The Husband and the Wife bee divorced causâ frigiditatis and after shee killeth her Husband this is petie Treason for that is but a divorce from table and bed and matrimony doth continue and therefore shee ought to bee faithfull and obedient The Husband and the Wife bee divorced causâ consanguinitatis and after shee killeth her Husband this is no Treason for the marriage was against the Law A man marryeth with a Turke or a Jew and shee kils him this is no Treason for the marriage was unlawfull A Villein killeth his Master this is no Treason The Tenant doth homage unto his Lord and after killeth him this is no Treason A man hireth an infant of the age of 10. yeeres and hee killeth his Master this is not Treason for the retaining was voyd CHAP. III. Of Murder Manslaughter and what not WHat shall bee said Murder and what Manslaughter and where a man may justifie the killing of a man A man is indicted of felony and a Cap ' is awarded to take him and hee resisteth if the Officer kill him hee may justifie it if he could not otherwise take him The Gaoler cometh into the prison and findeth his prisoners at large and breaking their fetters if hee kill them hee may justifie that act if hee could not otherwise take them A prisoner in ward for felony breaketh the prison and escapes and I. S. cometh to him and cannot take him but by killing of him and so doth kill him this is justifiable Two women fight and I. S. cometh to part them and one of them striketh I. S. and killeth him without malice this is manslaughter and felony and shee shall die for it for shee seeth I. S. But quere if shee had stroke him behinde his back if it had been felony or not A thiefe cometh to the house of I. S. and setteth fire on it and I. S. shooteth at him and killeth him this is neither felony murder nor manslaughter The Master and the Servant riding by the way a thiefe assaulteth the Master and striketh the Master to death the servant hastily to rescue his Master killeth the thiefe this is neither murder nor manslaughter A thiefe assaulteth I. S. to rob him and I. S. killeth him this is neither murder nor manslaughter A man goeth in an high way within a Parke and the Keeper hath malice towards him and cryeth to yeeld and hee will not but standeth at defence and the Keeper killeth him this is felony of his death An Infant within the age of discretion that is nine yeeres killeth his companion and after excuseth himselfe this is felony of death for by the excusing of himselfe it doth appeare that hee hath discretion to know good from evill A man non sanae memoriae killeth a man this is no
man hunteth with a visard or disguised A man entreth into the Church in the night to rob it and findeth nothing this is burglary A man that is Lord claymeth the best beast that his Tenant hath for herriot custome and the Lord taketh his herriot in the night this is no felony for the property of the beast is in the Lord by the death of his Tenant A thiefe stealeth my horse and I pursue him and for feare he delivereth me my horse and I take him I am neither felon nor accessary for it is at mine election to make the taking of my horse felony or trespasse but otherwise it is if I arrest him by an Officer A man stealeth goods that bee wrecked up in the sea it is not felony for the propertie of the goods is in no man A man lyeth in an Inne and in the night taketh his sheets and coverlets and hideth them and goeth for his horse and before hee can escape away hee is taken this is felony by Statute A man commandeth his Wife to steale money from I. S. shee doth it is not felony in the Wife for by the compulsion of her husband shee is obedient A woman that is heire apparant unto her Father is taken away against her will by I. S. and after is by him marryed by cohercion this is felony by Statute A man stealeth I. S. and putteth out one of his eyes this is not felony for the Statute speaketh of putting out both the eyes and a penall Statute shall bee taken strictly for hee hath put out but one eye A man stealeth a box of evidence this is not felony for the box is of the same nature as the Charters are and the Charters concerne the Franktenement A man delivereth his beasts for another to sell for him which flyeth with them this is not felony because hee came lawfully by them A man delivereth his plate to his Butler to keepe and hee flyeth with it this is felony for so long as the plate remaineth within his house it is in his possession The Wife taketh the goods of her Husband and carryeth them away secretly this is not felony Quaere the Receiver A man stealeth young Doves out of their nests this is felony Hawkes taken out of their nests is felony but if they be taken with nets when they are branchers it is not felony for they bee out of every mans possession A man stealeth fish out of my trunk in the day this is felony A man stealeth Faulcons eggs out of the nests this is felony by Statute If a man burn another mans house it is felony A woman that is marryed and I. S. bee confederated to rob the Husband and the Wife stealeth the goods and delivereth them to I. S. this is felony in I. S. but not in the Wife A man stealeth my Popingay or Linet or other such bird of pleasure it is not felony The same law for stealing of Hounds but if a man steale a Mastiffe it is felony for Hounds be but things of pleasure and not of profit but the Mastiffe is contrary A man entreth into my house in the day to rob and taketh nothing it is felony A Gaoler compelleth a prisoner to approve or appeale others that are not guilty it is felony in the Gaoler by Statute If a man steale at twenty times twenty pence it is felony yet if hee had stollen twenty pence at one time it had been but pety larceny A man stealeth a seat out of the Church this is not felony for it is parcell of the Franktenement A man maketh a grant of the next voydance of a Benefice and I. S. stealeth it this is felony for the Charter is of the nature of a Charter royall A man stealeth milstones off a mill it is no felony A man is outlawed in the common law by the name of I. S. for debt and one raseth the record and putteth in T. D. this is felony by Statute A man baileth goods to I. S. to keepe and after the bailor stealeth the goods from the bailee it is not felony for the property is in himselfe but it is adjudged contrary A man stealeth glasse out of windowes which be made fast with sprignailes it is felony But contrary if they be fastned with great nailes for then they be parcell of the Franktenement Felons doe breake my doores towers or ports to the intent to rob kill or feare any man this is felony though they take nothing CHAP. V. Accessaries and good Indictments What persons may bee called accessaries to the felons and what not and where the accessaries shall bee put to answer and where not and which shall bee said good indictments of felony and which not NOte That there bee two kindes or manners of Accessaries one before the felony and another after the felony Accessary before the felony is hee that moveth the felon to doe the felony Accessary after is hee that receiveth or doth aide or help the felon in any manner after the felony done to his knowledge Principall and Accessary the principall not being arraigned the accessary shall not bee put to answer The principall is taken and put in prison and dyeth in prison the accessary shall not bee put to answer for by the death of the principall the accessary is discharged Two men are indicted for killing of a man the one as accessary the other as principall and it is found the principall killed him se defendendo the accessary shall not bee put to answer for when the principall is acquit of the felony the accessary shall not be in worse case A man committeth felony and I. S. saith for his deliverance according to the Law hee is not accessary to his felony I. S. is accessary to a felony and W. S. knowing of it receiveth or comforteth I. S. hee is accessary and it is felony in him for hee that is accessary is a felon and the first accessary is a felon and therefore hee is accessary to the felony A man procureth I. S. that he should procure I. K. to kill W. D. the first procurer is accessary A man stealeth goods and I. S. is indicted quòd ipse felonicè recepit knowing that the goods were stollen I. S. is attainted and there is another accessary to I. S. he shall never be put to answer for hee is accessary to the goods and not to the man If an infant or a man that is mad receive goods that be stollen it is not felony nor accessary If the principall pleade the Kings pardon the accessary shall not bee put to answer If a woman covert baron receive a felon or goods at his hands knowing that they bee stollen shee is accessary If the principall plead not guilty and bee found guilty and pray his clergy and hath it the accessary shall not bee put to answer