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
that may come before them judicially to the end that The Tryal may be more indifferent seeing the safety of the Prisoner consisteth in the indifferency of the Court Co. 3. Inss 29. And how can they be indifferent who have delivered their opinions before hand without hearing of the party when a smal addition or substraction may alter the Case 5. Judges ought in giving Sentence especially in ambiguous Cases Co. Lib 9. Dowmans Case 13. a. to avoid precipitation because ad poenitentiam properat cito qui judicat Festinatio Justitiae noverca Touching Temerity or Hastiness take these foreign Authors Temeritas est damnare quod nescias sayes Seneca Temeritate omnis actio vacare debet Ciccro 1. Offic. Nihil temeâ—itate turpius Id. dâ— Natura Nihil a gravitate Sapientis temeritate disiunctius 4. Academ Deliberabo Lex vult nihil temere fieri sayes Seneca lib. 2. Controv. 11. Hitherto of the Persons that are conversant in Judgment touching publick Crimes or offences 7. Of the Matters of Judgments Criminal and how they are brought to a judicial Decision The things or matters of publick or criminal Judgments are Causes proceeding from High treason Felony or other Misdemeanours Touching High treason and Felony two things are to be observed 1. In antient time every Treason was comprehended under the name of Felony but not e contra 2. E. 4.14.18 E. 4.10.23 Ass Pl. 49. and therefore in our antient Books by the Pardon of all felonies High treason or Counterfeiting the Great Seal and of the Kings Coyn c. was pardoned But the Law now is and of long time hath been otherwise holden And therefore by the Law at this day under the word Felony in all commissions c. Co. Litt. 391. a. are included Petit treason Murder Homicide Burning of Houses Burglary Robbery Rape c. Chance-medley Se defendendo and Petit Larceny but not High treason for it is not comprehended under the word Felony and therefore ought to be especially named in the Kings Pardon or Charter 2. That criminal or publick Causes are called Pleas of the Crown Co. 2. Inst f. 22. but they are not so called as some have said because the King Jure Coronae shall have the Suite and Common Pleas because they be held by Common Persons for a Plea of the Crown may be holden betwixt Common Persons as an Appeal of Murder Robbery Rape Mayhem c. and the King may be party to a Common Plea as a Quare impedit and the like But now how these criminal matters are brought to a judicial hearing is the question It is answered that they are brought by way of Accusation and Exception Accusation doth proceed either by way of Appeal 1. Of Accusations or by way of Indictment and first of Appeals Appeal Appeal Appellum cometh of the French word Appeller that signifieth to accuse Co. Litt. 123. b. 126. b. or to appeal or appeach An Appeal is therefore an Accusation of one upon another with a purpose to attaint him of Felony by words ordained for it Now Appeals are of three sorts Co. Litt. 287. b. 1. Of wrong to his Successor whose heir he is and that is only of Death which is of two sorts of Murder of Manslaughter but of Chancemedley no Appeal doth lye As touching Appeal of Murder this Quaere is put Qu. Whether Tryal of Murder by Appeal ought to be brought in the County where the fact was committed Resp It is adjudged that in an Appeal of Murder the writ shall abate if it be not brought in the County where the fact was committed for it is against a fundamental Rule of Law that a Tryal of murder by Appeal or otherwise Cro. 3. part Sontley v. Price 247. shall be out of the County where it is perpetrated And for this cause it was doubted at the Common Law where a stroak were given in one County and death ensued in another how it should be tryed And to avoid this doubt the Stat. of 2. E. 6. was made But it alwaies was clear that a fact in one County ought not to be tryed in another Note the Stat. of 26. H. 8. c. 6. allows that Indictments may be in County's next adjoyning but there is not any mention of Appeals and for this reason Certioraries have been granted to remove Indictments out of the Grand Sessions in Wales 2. Of wrong to the Husband and is by the Wife only of the death of her Husband to be prosecuted Co. Litt. 33. b. Touching this kind of Appeal I propose these Queries with Resolutions on them Qu. 1. Whether a Wife de facto shall have an Appeal Resp Some do hold and so do I that a Wife de facto shall have an Appeal of the death of her Husband but only she that is Wife de jure in favorem vitae and that there ne unques accoupse en loyal Matrimony shall be taken de jure strictly Qu. 2. Whether the Wife can have an Appeal although she cannot have a Writ of Dower Resp The Wife shall have an Appeal Co. Litt. 33. b. where she cannot have a Writ of Dower as if she Elope c. she is barred of her Dower but not of her Appeal West 2. c. 34. Co. Litt. 33. b. 37. a. Co. 3. Inst f. 215 35. H. 6.63 and the reason is for that the Stat. barreth her of her Dower but not of her Appeal So if the Husband be attainted of Treason or Petit treason his Wife shall not be endowed and yet if any do kill him the Wife shall have an Appeal for notwithstanding the Attainder he remained her Husband Qu. 3. Whether she ought to be sole and unmarried that brings an Appeal of her Husbands Death Resp It is requisite that she be sole and unmarried 〈◊〉 The Woins Law b. 5. ct 1. that makes this Appeal for if she marry again her Appeal is gone though the new married Husband be dead within the year and day after his death that was slain Qu. 4. Whether the taking of a second Husband after Judgment and before Execution can hinder the Execution of the Judgment Resp Not only a Widdow which hath an Appeal hanging abateth her Appeal and loseth it force by new Marriage but also if after Judgment and before Execution sma H. 4.41 she take an Husband she loseth the Execution of the Judgment Qu. 5 What is the true reason why a Woman hath an Appeal de morte Viri Resp The reason wherefore this Action is given to a Widdow is not as Glanvil makes it Quia una caro est vir uxor for then the Baron might have an Appeal de morte uxoris The Womans Lawer lib. which is never granted but her heir shall have it But the true reason why a Woman hath the Appeal de morte Viri is because by his death she is thought less able to live and maintain her self that
only Murther the reason of this diversity is for that the one is in subjection and oweth Obedience and not the other The wife poysoneth an Apple to the intent to poyson a stranger therewith Cromp. 20. and laid it to that purpose in a secret place and the Husband by chance eateth of it and dyeth thereof within a Year and a day this is petit Treason in the Wife for that she intended Murther thereby so if the Wife poysoneth an Apple or other thing and delivereth it to B. knowing of the poyson to give to C. and B. giveth it to the Husband without the assent of the Wife who eateth thereof in the Wives absence and he dyeth thereof this is petit Treason in the Wife But if the Wife poysoneth a thing Plowd Com. f 474. to the intent to poyson her Husband therewith the Husband eateth of it and becometh very sick but recovereth after a stranger eateth thereof and dyeth thereof this is onely murther in the Wife If the Wife and Servant conspire the Husbands death he is killed by the Servant Co 3 Just f 20. in the absence of the Wife this is petit Treason in them both and the Wife shall be burnt But if it had been a stranger it had been murder in him onely and petit Treason in the Wife Baron and Feme out of affection were resolved to go out of the World together The Wife buyes poyson both take it the Husband dyed It is a quaere in the Book whether this were murther in the Wife A Woman compasseth with her Avowterer The Womans Lawyer lib. 3. sect 44. the death of her Husband they assailed him Riding on the Highway beating wounding leaving him for dead and then they fled The Husband got up levied Hue and cry came before the Justices they sent after the Offenders which were gotten arraigned and the matter found by the Verdict the Adulterer was hanged the Woman burned to death the Husband living This Judgement was given when voluntas reputabatur pro facto Sic Metellus Celer Sergium damnavit non factum sed animus in questionem deductus est Plusque voluisse peccare nocuit quam non peccasse profuit But at this day in case of Felony Non debet obesse Conatus ubi injuria nullum habet effectum 3. When a Secular or Religious man stayeth his Prelate Ordinary or Superiour to whom he oweth Faith and Obedience Note that unto the Bishop of every Diocess the Clerks within their Diocess do owe Faith and Obedience which is called Canonical Obedience Note likewise that whatsoever Act will prove murder between strangers the same will make petit Treason from the Servant to his Master from the Wife to the Husband from the Clerk to his Prelate or Ordinary Mutatis Mutandis But whether from a Child to the Father or Mother c. may be a Quaere for some hold that it is petit Treason and others that it is not If the Child maliciously killeth the Father or Mother this sayes one is petit Treason although the Father or Mother at the same time gave neither meat drink or Apparel nor wages to such Child in respect of the duty of nature violated vide 21. E. 3.17 Book Treason 6. A Bastard killeth his Mother Crompt ' 21. this seemeth petit Treason for the Mother is certainly known The Son or Daughter in Law killeth the Father or Mother in Law with whom they dwell and do service and have meat Dalisons Rep. 1. Mar. 1. and drink it is petit Treason although such Child take no wages but the Indictment shall be by the name of Servant But my L. Coke says thus If the Child commit Parricide in killing his Father and Mother of which Solon interrogatus cur nullus parricidio supplicium indixisset Se id neminem facturum putasse respondit The Law-makers never imagined any child would do this case is out of the Stat. of 25. E. 3 c. 2. unless the child served the Father or Mother for wages or meat drink or apparel for that it is none of those three kinds specified in the Law aforesaid And yet sayes he the offence is far more hainous and impious in a child than in a servant for peccata contra naturam sunt gravissima but the Judges are restrained by the said Act to interpret it a simili or a Minore 〈◊〉 Majus The hainousness of this Parricide appears by that punishment which is ordained in the civil Law for those that are guilty of the Crime Paena parricidij more Majorum haec instituta est ut parricida virgis sanguineis verberatus deinde culleo insuatur cum Cane gallo gallinaceo vipera simia deinde in more profundum Culleus jactetur D. 48.9 9. Thus much of petit Treason Murder cometh of the Saxon word Mordrue ◠Murder Co Litt 287 b Stamfords Plees of Crown Lib 1 or Mordren and Mordridus is the Murderer even untill this day amongst them in Saxony from whence we have most of our words or it may be derived of Mort and Dire as Mors Dira a Cruel or Horrible death This Murther in our Law is Two-fold either of himself or of another 1. Of Murdering a mans self called Felo de se Felo de se sayes Coke is a man or woman which being Compos mentis of sound memory and of the Age of Discretion killeth himself which being lawfully found by the Oath of Twelve men all the Goods and Chattels of the party so offending are forfeited And the Reason why Felo de se doth forfeit all his Goods and Chattels is because it is an offence against the King who by that perpetration is deprived of a Subject And indeed no man by the Law of nature hath such power over his own life as to take it away or to oblige it by any Contract or Bargain vide Grot. Lib. 2. c. 21. nu 11. Lib. 3. c. 11. nu 18. Having shewed the Description of Felo de se and the Reason of forfeiting his Chattels I propose these Queries with their Resolutions Whether a person that is non compos mentis Quaere 1 giving himself a mortal wound and after recovering his memory before death ensues be Felo de se If one during the time that he is non compos mentis giveth himself a mortal wound Resp whereof he when he hath recovered his memory dyeth he is not Felo de se And the Reason is because the stroke which was the cause of his death was given when he was not Compos mentis Et actus non facit Reum nisi meus sit rea And this is agreeable to the civil Law Maleficia voluntas propositum distinguit D 47 253 voluntas propositum maleficium delinquentis distinguit Delictam cessat ubi delinquendi animus non est Whether a man can be said to be Felo de se upon an involuntary Act Qu 2 A man may be so As
therefore when she taketh another Husband cessante causa ceffat effectus and her Appeal is gone as la Widdowes Quarentine is determined when she is once remarried 3. 1. Robbery Of wrong done to the Appellants themselves as Robbery Rape and Maihem If in an Appeal of Robbery Co. 3. Inst f. 227. the Plaintiff omit any of the goods stoln they are forfeit to the King for the favour which the Law persumeth the Plaintiff beareth to the Felon and for that he cannot have restitution for more then is in his Appeal If the Jury find in an Appeal of Robbery for goods 2. E. 3. Cor. 367 368. that the Defendant found them in the High-way in this case the Plaintiff for his false Appeal seeking the blood of the Innocent shall forfeit his goods to the King If any Virgin 2. Rape Widdow or single Woman be ravished she her self may sue an Appeal of Rape prosecute the Felon to death and the Kings Pardon cannot aid him But if a Feme Covert be ravished she cannot have an Appeal without her Husband as appears 8. H. 4.21 If a Feme Covert be ravished and consent to the Ravisher the Husband alone may have the Appeal 11. H. 4.13 and this by the Stat. of 6. R. 2. c. 6. And the Husband that this Statute speaketh of which may sue the Appeal must be a lawful Husband in Right and possession for He unques accouple en loyal Matrimony is a good Plea against him An Appeal of Maihem was brought by one Milles. 3. Maihem and the Maihem was assigned in his shoulder and the Defendant demanded the view and it was said that he should not have it because it was done de son tort demesue 21. H. 7.23 b. also it was said that Surgeons may heal and cure him and although he shall be tryed by Inspection of the Court or by Chirurgeons it was held be it one way or other it is peremptory for him c. It was held by all the Justices of the Kings Bench 21. H. 7.40 a. that in an Appeal of Maihem if the Defendant pray that the Maihem may be examined if the Justices or Surveyors which they require be in doubt whether it be a Maihem or not the Judges may refuse the examination and compel the Party to put it upon the Country Thus much of wrong done to the Appellants themselves I shall conclude this Learning touching Appeals with these Queries Qu. 1. Whether all Appeals ought to be sued in proper Person Resp It is answered that all Appeals are to be sued in proper Person and not by Attorney 21. E. 4.72 73. as Appeal of Maihem must be in proper Person A Woman which was Grossement euseint The Womans Lawer lib. 5. sect 2. sued this Appeal and the Defendant was attainted the Womans Appearance was recorded for the whole Terme and yet by the better opinion she might not pray Execution by her Councel but ought to come in proper person therefore one of the Judges did ride to Islington to her to see if she were alive and desired Execution which she required and the Defendant had Judgment Qu. 2. Whether an Appeal may be commenced more then one way Resp It is answered that Appeals are commenced two wayes either by Writ or by Bill 1. By Writ when a Writ is purchased out of the Chancery by one Man against another commanding him that he shall appeal a third Man of some felony or other offence by him committed and to find Pledges that he shall do this with effect and this Writ is to be delivered to the Sheriff to be recorded 2. By Bill when a Man of himself giveth his Accusation of another Man in Writing to the Sheriff or Coroner and taketh upon himself the burthen of appealing him that is named in the said Writing And note that there is a diversity worthy of observation betwixt an Appeal by Bill and by Writ for in the Appeal by Original Writ both principals and accessories Co. 2. Inst f. 183. are generally charged alike without any distinction who be principals and who be accessories but otherwise in the Appeal by Bill Thus much of the Accusation by way of Appeal I proceed now to speak of the other kind of Accusation viz. by Indictment Indictment cometh of the French word Enditer Indictment Co. Litt. f. 126. b. and signifieth in Law an Accusation found by an Enquest of 12 Men or more upon their Oaths and the Accusation in Latin is called Indictamentum And as the Appeal is ever the Suite of the Party so the Indictment is alwayes the Suite of the King and as it were his Declaration For the clearer understanding of Indictments take these following Rules That there be words so appropriated to offences criminal Reg. 1. that they cannot be Legally by any other words or Periphrasis The word Rapuit Rape in an Indictment of Rape must be used for carnaliter cognovit eam or the like will not serve Co. Lit. 124. a. Co. 2. Inst 180. Cro. 2. part Fitzwilliams Case An Indictment Murder Quod felonice ex malitia sua praecogitata occidit such a one without saying Murdravit is no Indictment for Murther although these words Tantamount Cro. 3. part Fitzwilliams Case Co. l. 4. Brookes Case 39. b. 8. E. 6. Dyer 69. a. 304. b. No Indictment can be of High treason High treason without this word proditorie Co. 3. Inst f. 15 4. In an Indictment of Maihem Maihemavit cannot be expressed by any word Maybem as mutilavit truncavit or the like Co. Litt. 126. b. The word Felonice Felony must be used in all Indictments of Felony and cannot be expressed by any other word Co. Litt. 391. a. False Latine shall not quash an Indictment if the word be sensible Reg. 2. Co. leb 5. Lowes Case It is moved in Arrest of Judgment that an Indictment was not good being fecerunt Cro. 〈◊〉 part Cholme leges Case whereas it was found only Billa vera against one sed non allocatur Because it was exhibited against two and it is but false Latine Misrecital of a Statute Reg. 3. being fatal in Indictments the sure way is to draw the Indictment with conclusion contra formam Statati and with no Recital of the Act. Co. l. 4. 48. a. Every Indictment ought to have the Addition of the Party indicted Reg. 4. and his place of Abode Cro. 2. part Reads Case and Johnsons Case 610. In all Cases of death the word percussit Reg. 5. ought to be used except in case of poysoning Co. lib. 5. Longs Case Where a Man indicted is not convicted Reg. 6. or acquitted he may be arraigned upon a new Indictment Cro. 3. part Withipools Case Where the substance of the Indictment Reg. 7. Co. Litt. f. 282. a. lib. 9. Mackaleyes Case no matter for circumstances As if A. be indicted of murder
Pleas of the Crown 135 136 How they are brought to a Judicial hearing 136 Challenges to fight 107 Challenges of Jurors What number the Party may challenge what not 156 Chance-medley What it is 47 One Trained Souldier hurting another by mischance 47 Where the killing of another by misfortune shall be murder and where not 48 Where 't is Homicide in a Physician and where Covert Felony 49 Clergy In what particulars the benefit of Clergy is taken away at this day 127 A Rule touching this Clergy 128 Conviction When a Man is said to be convicted 151 Councel What advantages a Prisoner may take in case of Treason or Felony to have Council assign'd him 131 Council allow'd in Appeals but not in Indictments the reason of the diversity 131 132 A Prisoner may have Council in matters of fact 130 131 Duels They are against the Law of God Nature and the Laws of the Realm 102 The punishment of Duellists though no blood be shed 103 What Duells lawful 102 103. Error 157 Execution Where it ought to be done by a right Officer 156 Where it ought to be according to the Judgment Id. The means by which Execution may be avoided 157 Extortion What it is 96 More odious then Robbery 97 Felo de se The Description of a Felo de se 8 The reason why he forfeits Goods Ib. Where a Man shall be said Felo de se and where not 9 How Felo de se shall be enquired of where the Body cannot be found 10 His Goods not forfeited till found of Record 9 10 Where a Joyntenant becoming Felo de se shall forfeit but part where the whole 10 A Debt owing to Felo de se upon a bare Contract is not forfeitable to the King 11 Felony A Pardon of all Felonies is no Pardon of Treason at this day 135 The extent of the word Felony Ib. To break a Prison where by the Felons may escape is Felony 83 The begging of the Estate of a Delinquent before conviction and Attainder is illegal 151 Where none may seise the Goods of any Person before conviction Ib. No Goods of an Offender ought to be fearched or Inventoried before Indictment nor removed before conviction Ib. Falsifying Attainders 157 Gifts 95 96 Homicide The Etymology of the word Homicide 2 It s right division Ib. How many sorts of Homicides there be 3 What Homicides are Felony and what not Ib. The Description of Homicide 2 Homicide voluntary what it contains 3 Jus criminis what 1 Indictment The signification and derivation of the word Indictment 141 142 The difference betwixt an Appeal Indictment 142 In Indictments words are so appropriated to offences that they cannot be expressed by any other words Ibid. Rules touching Indictments 142 143 Judge No man to be Judge in his owne Cause 50 Judges in criminal Causes ought to deliver their opinion before hand 134 The duty of Judges 133 134 Who Judges of Fact and who of Law 132 133 Judgement criminal The Persons consider'd in it Assistants in it who 130 Their duty Ib. In Judgement of High-Treason or Felony what is implyed 155 156 Jurors The properties of Jurous 132 133 King His Treasure the sinews of War 96 Head and health of the Common-Wealth 1 75 87 Making War solely appertains to him 82 Larceny Larceny what 55 It s twofold 55 56 What shall be said a felonious taking what not 56 57 Whether an Infant unper the age of discretion can commit Larceny 57 58 Where there must be a felonious taking as well as a felonious carrying to make a Larceny 56 Where and where not a Feme Covert may be guilty of a Larceny 58 59 Where the Wife cannot steal the Goods of her Husband Ib. It may be committed of a thing that is delivered by Replevin 59 What shall be said a felonious carrying away to make it a Larceny 59 60 Larceny cannot be committed of Personal Goods that savor of the Realty Ibid. Where 't is Larceny to steal the sheets from the Dead 61 Where a Man may steal his own Goods Ib. Ligeance It cannot be shaken off 85 Lex Talionis 53 Libels Libel what it signifies 107 Libelling be it true or false is punishable by our Law Ib. How a Man must demean himself that finds a Libel 106 A French Libel punishable 107 A Libel punishable by Indictment Ib. Laws The Greek Law touching a Childs stealing of Goods 58 What the Civil is touching these following particulars § Self-Defence 9 A Mans Intention 9 44 Poysoning 13 Malice 14 A Woman pregnant 15 Physicians and Surgeons 49 A Mans Limbs 52 Life 8 Theft 55 An Infants stealing 58 Death 61 A Man stealing his own Goods 61 62 Robbery 64 Sacrilege 66 67 Pyrats 71 Burning of Houses 74 75 Treason 78 Calculation 80 81 Authority of making War 82 Ligeance 85 Fausonnery 86 Mad-Men 88 The Custom of places 90 Treasure 93 Robbing of Treasure 94 Gifts and Bribery 95 96 Rape 54 Riots c. 103 Force 102 Libels 107 Punishments 114 117 Personal offences 118 119 Doubtfull Interpretations 119 Circumstances 120 Principal and Accessory 128 Alienations 154 Life No Man has power over his own Life nor members 8 52 Misprisions The Derivation of the word and its Derivation 91 It is twofold 91 92 The punishment of Misprision of Treason 93 Every Treason and felony includes in it a Misprision 193 Where words without overt Act are as punishable as Misprision of Treason 92 Murder It s Derivation 8 How divided Ib. Murder how heretofore how at this day defined 11 Where a mistake in the principal shall make the Accessary guilty of murder and where not 12 What Persons are capable of being murdered 11 Poysoning the worst of Murders 13 Whether an Infant within the age of 9 years can be guilty of Murder 13 14 Where there ought to be a continued malice to make it murder and where not 14 15 Where 't is no Murder to kill an Infant en ventre de sa mere 15 Murder in a Mother to conceal the death of her Bastard-Child 16 Stabbing another where wilful murder Ib. What murders tryable before the Constable and Marshal 32 33 What Officers it is murder to kill 36 Malice Where to kill another without provocation is malice implied 33 34 How many kinds there be of malice impli'd Ib. Mayhem The signification and derivation of the word Mayhem 51 In what cases a Mayhem may be done and what not 51 Judges may use the help of Surgeons in point of a Mayhem 51 52 Mayhem how termed by the Canonists 51 Where a Man was indicted for mayming himself Ib. The antient punishment for him that maymed another 52 Maliciously to cut the nose is felony at this day 51 The degree of this offence called mayhem 53 Offences An offence or delict what 1 How many ways offences are committed Ib. What offences despoil Men of their property 54 Offences that injure Mans Body or members 50 Offences relating to life
Chattels of A forfeited Co. ◠Inst f. 233. which he had at the time of the Verdict given and this cannot be falsified by Traverse If the Party be arraigned upon the same Indictment before Justices of Gaol delivery and is by Verdict acquitted of the Felony and that he did not fly for the same yet he shall forfeit his Goods and Chattels Co. Litt. 373. b. But such a fugam fecit may be satisfy'd by matter in Law for if the Indictment be void or insufficient there is no forfeiture 3. Of Pardons Touching Pardons these particulars are worthy of observation Pardon in Latin is called Perdonatio 1. The Etymology of the word Pardon Co. 3. Inst f. 233. which is derived a per and dono per is a Preposition and in the Saxon Tongue for is orvor as to forgive is throughly to remit and fore-think is to repeat forbear is to bear with patience A Pardon is a work of Mercy whereby the King doth remit or forgive a felonious offence 2. The Description of a Pardon perpetrated against his Imperial Crown either before Attainder or Conviction or after A Pardon says one is twofold 3. The Division of Pardons one ex gratia Regis the other per Course del Ley by Course of Law Pardon ex gratia is that which the King in some special regard of the Person or other circumstance sheweth or affordeth upon his prerogative Royal or power Pardon by course of Law is that which the Law in equity affordeth for a light offence as Homicide casual when one killeth a Man having not such meaning West Part. 2. Symb. Tit. Indict sect 46. All Pardons of Treason or Felony says Coke are to be made by the King and in his Name only and are either general or special All Pardon 's either general or special are either by Act of Parliament whereof the Court in some Cases shall take notice or by the Charter of the King which must always be pleaded And these again are either absolute or under Condition Exception or Qualification General Pardons are by Act of Parliament Co. 3. Inst f. 234. and if any of these Pardons be general and absolute the Court must take notice of them though the party plead it not but would waive the same No particular Pardon be it at the Coronation or any other 4. The Allowance of Pardons or any offence or offences whatsoever that is absolute without any condition c. need any Writ of Allowance but when the Pardon is conditional by force of the Act of 10. Co. 〈◊〉 Inst f. 234 235. E. 3. c. 2. there a Writ of Allowance out of Chaucery testifying that the Condition is performed viz. surety found according to that Act may be had or the Party may plead the finding of Surety c. and vouch the Record Touching Allowance of Pardons I shall mention two Cases out of Crokes Reports First upon the 14 day of November 1640 Sir Matthew Mennes Cro. 3. part-Mints his Case Knight of the Bath who was convicted of Man-slaughter and had his Clergy and his burning in the hand was respited and now he pleaded his Pardon whereby the burning in the hand and all other Felonies committed by him alia malefacta before 8th of July last were pardoned and there was an especial Clause that he should not find Suretys for his behaviour and the Pardon bore date 31 of Octob. last And although there were many misdemeanors by him after the said 8th of July for which he deserved to be bound to the good behaviour yet he had his Pardon allow'd and was discharged from finding Suretys c. Secondly Sir Henry Linley who was indicted of Treason Cro. 1. part Linley's Case being brought to the Bar and demanded whether he could say any thing why the Court should not proceed upon the Indictment which was before Commissioners of Oyer Terminer he produced the Queens Pardon without any Writ of Allowance thereof And Pope Second Clerk of the Crown inform'd the Court that the Presidents were that in case of Treason it was used to allow of the Pardon but not in Felony whereupon the Pardon was allowed Thus much of Pardons 4. Of Restitutions All that is forfeited to the King by any Attainder c. he may restore by his Charter But if by the Attainder the Blood be corrupted that must be restor'd by Authority of Parliament and the reason wherefore the King may by his Charters pardon the Execution and restore the Party or his Heirs to the Lands forfeited by the Attainder and remaining in the Crown is for that no Person hath thereby any prejudice but to make restitution of his Blood the King cannot do it but by Act of Parliament because it should be to the prejudice of others And the Rules are Non poterit Rex gratiam facere cum injuria damno aliorum Quod alienum est dare non potest Rex per suam gratiam Quacunqne forma Princeps alienat salvum manet Jus tertii Aliorum honores aliis damnorum occasionem fierinon oportet Note Of Restitutions by Parliament some be in Blood only that is to make his Resort as heir in Blood to the Party attainted and other his Ancestors and not to any Dignity Inheritance of Lands c. and this is Restitutio 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 secundum quid seu in partem And some be general Restitutions to Blood Honours Dignities Inheritance and all that was lost by the Attainder Co. 3. Inst 240. and this is Restitutio in integrum and Restituere generally nihil aliud est quam in pristinum statum reducere Thus now concluding this slender Treatise with the Kings Mercy that is convey'd to his Subjects by Pardons and Restitutions I humbly apply to our most Gracious Soveraign the words which Seneca did once intimate to the Roman Emperor § Occidere contra Legem nemo potest servare nemo praeter te The Author hath written somewhat touching the Satutes of Hue and Cry for the better and more speedy apprehension of such as are guilty of Robberies which should have been placed before under the Title of Robbery but it being by some inadvertence there omitted the Printer has thought it not much amiss to put it at the end of this Discourse by way of Appendix And thus the Author treats concerning the Statutes of Hue and Cry BY the Statutes of 13. E. 1. of Winton c. 1.28 E. 3. c. 11 and 28.1 c. 17. 13. E. 1. c. 1. the Country shall answer if the Robbers be not taken By the Statute of 27. Eliz. c. 13. are enacted these particularities § 27. Eliz c. 13. 1. That the Inhabitants of a hundred shall be chargeable with the moyety where a fresh Suit shall cease 2. That the Clerk of the Peace shall prosecute the Suit which Suit commenced shall not cease upon the death or remotion of the said Clerk of the Peace 3. A Remedy
for those against whom the Recovery and Execution is had to have Contribution 4. That there shall be no penalty where any of the offenders be apprehended 5. The Suit shall be commenced within one year next after such perpetration or Robbery or else the Person or Persons robbed shall not take any benefit by vertue of any of the said former Laws or Statutes 6. That the Party robbed must give notice and intelligence of the Robbery committed unto some of the Inhabitants of some Town Village or Hamlet near unto the place where any such Robbery shall be committed 7. That the Party robbed shall not have any Action upon any of the Statutes aforesaid except he shall first within twenty days next after such Action to be brought be examined upon his Corporal Oath before some Justice of Peace of the County where the robbery was committed whether he doth know the Parties that committed the Robbery or any of them and then shall become bound to prosecute the offenders Having given a summary of these Statutes upon Hue and Cry I shall present to the Reader several Resolutions given at the Courts of Westminster upon the Statute of Winchester and the Stat. of 27. Eliz. The former you must kow gives penalty and Remedy the latter shews how the Examination shall be and in what time before the Action brought 1. Resolves on the Stat. of Winton A Robbery for which the hundred must answer by force of the Statute of Winton Co. Lib. 7. Sendills Case f. 6. is to be done openly so as the Country may take notice thereof themselves but a robbery done secretly in the House the Country cannot take notice thereof for every one may keep his house as strong as he will at his peril for it was adjudged in Ashpoles Case that the Party robbed needed not to give notice thereof to the Country for it may be the Party robbed was bound or Maimed c. so as he could not make Hue and Cry to give notice A Robbery was done in January presently after the Sun-setting during day light Ibidem and it was adjudged that the hundred shall answer for the same for it was convenient time for Men to travel or to be about their Business A Robbery was done in the Morning Co. Lib. 7. Milbornes Case ante lucem the hundred shall not be charged It was held by Anderson and all the Justices that whereas the Stat. of Winchester speakes of Robberies done in the day Cro. 1. part Ridgeley v. Hundred of Warrington 70. before night yet if a Robbery be committed in the Morning before day or in the Evening after the day in any time of the night in which Men use commonly to travel that the hundred is answerable for it but if it be at twelve or one of the Clock in the night at which time every one is intended to be in bed the hundred is not answerable for the Robbery The Jury found Cro. 2. part May v. Inhabitants of Hundred de Morley 106. that the Robbery was done post lucem ejusdem diei ante Solis ortum Anglice After day-break and before Sun-rising and upon this the Court advised and Judgement was given for the Plaintiff and a President shewn Pasch 28. of Eliz. Rot. 130. where the Robbery was done post occasum Solis per diurnum lumen Anglice day light and there adjudged for the Plaintiff If an house be robbed in the day and the Felons escape Cro. 1. part Anoâ—ymus 753. Hue and Cry being made whether the hundred shall answer for that Robbery by the Stat. of Winton Gawdy and Popham conceived that the hundred shall not be charged For the Stat. of Winton extends only to Robberies done to the Person And was principally made for safeguard of travellors But every one ought to keep his own house at his peril for it is his Castle and no other ought to meddle there therefore it is not reason that any should be charged if he be robbed there Robbery done on a Sunday shall be chargeable to the Country Cro. 2. part Wait v. Hundred of Stoke f. 496. 2. Resolves on the Stat. of 27. Eliz. By the Stat. of 27. Eliz. c. 13. none shall have Action upon the said Statute Co. Lib. 7. f. 6. Sendils Case except the Parties robbed so soon as he may give notice of the same to any of the Inhabitants of any Village Town or Hamlet next to the place where the Robbery was done and if they in pursuit apprehend any of the offenders that will excuse the Town Action upon the Statute of Winton Cro. 1. part Greens case f. 142. for that one Brook his Servant was robbed and alledges that the Plaintiff himself came before a Justice of Place and was sworn according to the Stat. of 27. Eliz. And after Verdict it was alledged in Arrest of Judgement that the Servant was to be sworn and not the Master and so was the opinion of the Court For the Servant might know the Persons when the Servant was robbed and the Master was not in company and the Intent of the Stat. is that he that had notice shall be sworn and thereupon Judgment was staid Action upon the Stat. of Winton Cro. 3. part Reymond v. Hundred de Oking 37 38. whereas one Palmer the Plaintiffs Servant was robbed within the hundred of 68 pounds by Persons unknown and had made Hue and Cry according to the Stat. and one of the Thieves were taken and the said Palmer had made oath before such a Justice of Peace of the said County next adjoyning to the said hundred within 20 daies before this Action brought that he did not know any of the Parties who robbed him that the said hundred had not made him any recompense And upon Not-guilty pleaded and tryed at the Bar this Terme and found for the Plaintiff it was moved in Arrest of Judgment that this Action lyes not because the Plaintiff himself was not sworn that he knew not any of the Parties who did the Robbery for it is not sufficient that the Servant who was robbed was sworn for by the Statute of 27. Eliz. the Party who brings the Action ought to make that Oath and it was argued that the Servant who was robbed ought to have brought the Action and then his Oath would have been sufficient But when the Master brings the Action he himself ought to be sworn that he knew not any of the Robbers otherwise he might not bring it and therefore the Action lyes not But it was resolved by the Court that the Action well lyes for the Master and that the Servants Oath was sufficient for it is properly in his notice that he was robbed and did not know any of the Robbers and the Master knows it not that he was robbed or who were the Persons but by the report of his Servant and it would be inconvenient if the Master should not bring the Action but the Servant might release or compound or discontinue