without for Reward c. is an Adhering to the Kings Enemy and consequently Treason declared by the Act of 25. E. 3. Whether the Aiding or succouring of a Rebel beyond Sea be Treason A is out of the Realm at the time of a rebellion within England and one of the Rebels doth fly out of the Ream whom A knowing his treason doth aid or succour this is no Treason in A by the Stat. of 25. E. 3. because the Traitor is no enemy Vtrum Exteri qui cum Subditis contra Principem militant Rebelles sint habendi An Enemy coming in open hostility into England and taken shall be either executed by Marshal Law or ransomed for he cannot be indicted of Treason for that he was never within the Protection or Ligeance of the King and the Indictment of Treason saith Contra Ligeantiam suam debitam But if a Subject joyn with a Foreign Enemy and come into England with him he shall not be taken prisoner here and ransomed or proceeded with as an Enemy shall but he shall be taken as a Traitor to the King Whether an English Man born consulting with a Foreign Prince to invade his Country may be charged with High treason A Consultation was had concerning John Story Doctor of Law the Duke of Alva's Searcher whether he being an English Man born who in Brabant had consulted with a Foreign Prince about invading his Countrey and had shewed the means of Invasion might have been charged with High treason The skilfullest Lawyer affirmed that he might Whereupon he was arraigned and being to be charged with Treason for that amongst other things he had shewed to the Duke of Alva's Secretary the means to invade England raise Ireland into rebellion and excite the Scots to break into England all at once He refused to submit himself to Tryal and to the Laws of England and affirmed that the Judges had no power over him for that he was not a Subject sworn to the Queen of England but to the King of Spain But he was condemned according to the ordinary forme of Nihil dicit and suffered the death of a Traitor for that no Man can shake off his Countrey wherein he is born nor abjure his native saile or his Prince at his pleasure Nemo Putriam in qua natus est exuere nec Ligeantiae debitum ejurare possit With this Law doth concurre the Civil Law Origine propria neminem posse voluntate sua eximere manifestum est 5. Touching Fausonnery If a Man counterfeit the Kings Great or Privy Scale or his Money it is High treason All antient Authors agree that this was High treason by the Common Law as Bracton Britton Fleta and the Mirrour The Forging of the Kings Coyn is High treason without utterance of it for by the Act of 25. E. 3. the Counterfeiting is made High treason One Morgan and two others were indicted for Counterfeiting twenty Shilling Pieces of the Kings Coyn and Morgan for uttering those Pieces to the Kings Subjects knowing them to be counterfeit and being thereupon arraigned he pleaded Not guilty And evidence being pregnant against Morgan he was found guilty and the others were acquitted And Judgment given that he should be drawn and hang'd but not to be quartered according to the opinion of Stamford f. 182. Note that by the Stat. of 5. Eliz. to clip wash round or file for wicked lucre and gain is declared High treason So by the Statute of 18. Eliz. 't is enacted that diminishing scaling or lighting of the Kings Coyn within this Realm is High treason Touching Money the Civil Law speaks thus Qui falsam monetam percusserint si id totum formare noluerunt suffragio justae poenitentiae absolvuntur D. 48. 10. 19. De falsa Meneta Quicunque Nummos aureos partim raserit partim tinxerit vel finxerit si quidem liberi sunt ad bestias dari si servi summe supplicio affici debent D. 48. 10. 8. 6 and last Bringing into the Realm Counterfeit Coyn. If a Man bring false Money into this Realm counterfeit to the Money of England knowing the Money to be false to Merchandise or make payment in deceit of our Soveraign Lord the King and of his People it is High treason But note that the uttering of false Money in England though the Person know it to be false and counterfeit to the Likeness of the Coyn of England is no Treason within the Statute of 25. E. 3. unless he brought it from a Foreign Nation for the words of the Statute are Si Home apport faux Money en cest Realm Having related the several parts or kinds of Treason within the Stature of 25. E. 3. I shall add these few Queries touching High treason and so conclude Whether a mad Man may be guilty of High treason The antient Law was that if a mad Man had killed or offered to kill the King it was holden for Treason and so it appears by King Alfreds Law before the Conquest and in Beverleys Case for the King is Caput Salus Reipublicae a Capite bona valetudo transit in omnes and for this cause Kings Persons are so Sacred that none may offer them violence without being guilty of High treason Et pereat unus ne pereant omnes But now by the Statute of 25. E. 3. and by force of the words Fait compasser ou imaginer la mort he that is Non compos mentis and totally deprived of all compassings and imaginations cannot commit High treason by compassing or imagining the death of the King for furiosus solo furore punitur and furor in the Civil Law is continuata mentis alionatio qua quis omni intellectu caret If a Man commit Treason and confesseth the same or be thereof otherwise convict if afterwards he become de non sanae memoriae he shall not be called to answer or if after Judgment he become de non sanae memoriae he shall not be executed for it cannot be example to others The Civil Law Culpam non admittit qui suae mentis non est Si per furorem aliquis parentem occiderit impunitus erit Divi Fratres rescripserunt super eo qui per furorem matrem necaverat Nam sufficere furore ipso eum puniri Whether an Alien residing here can commit High treason All Aliens that are within the Realm of England and whose Soveraign are in amity with the King of England are within the protection of the King and do owe a Local or Topical obedience to the King are within the Act of 25. E. 3. and if they commit Treason against the King they shall be punished as Traitours and the Indictment shall say contra Legeantiae debitum Whether the killing of a Foreign Ambassadour residing here be High treason Albeit the malicious killing of an Ambassabour be justi
this Indictment was removed by Certiorari into the Kings Bench and being argued by Grimston that it was not felony By Richardson Jones and Berkeley it was held that it was not felony to burn an house whereof he is in possession by vertue of a Lease for years For they said that burning of houses is not felony unless that they were aedes alienae And therefore Britton and Bracton mention that is felony to burn the house of another and the Year-Books and Co. lib. 11. Powlters Case which say that burning of houses generally are to be intended de aedibus alienis de non propriis And although the Indictment be ea intentione ad comburendum felonice c. yet intent only without fact is not felony Also Barkeley and Jones held that it cannot be said vi armis when it is in his possession and therefore it was resolved that it was not felony wherefore he was discharged thereof But because it was an exorbitant offence and found they ordered that he should be fined 500. pounds to the King and imprisoned during the Kings pleasure and should stand upon the Pillory with a paper upon his head signifying the offence at Westminster and at Cheap-side upon the Market day and where he committed the offence and should be bound with good sureties to his good behaviour during life Note there is a late Act made to prevent the malicious burning of houses Stackes of Corn and Hay and killing and maiming of Cattel Touching burning the Civil Law speaks thus Qui aedes acervumque frumenti juxta domum positum combusserit vinctus verberatus igni necari jubetur si modo sciens prudensque id commiserit Si vero casu id est negligentia aut noxiam sarcire jubetur aut si minus idoneus sit levius castigatur Si fortuito incendium factum sit venia indiget uisi tam lata culpa fuit ut Luxuriae aut dolo sit proxima Hitherto of criminal Pleas that are perpetrated against the King and Common-wealth mediately but principaliter in singulas personas I proceed to those that immediately touch the King and his Crown and they are 1. High Treason Stamford telleth us that the King is the Preserver nourisher and defender of all his People and that by his great travel study and labour his People only enjoy their Lives Lands and Goods And as the body of Man cannot live without a Head but will fall to the ground so the Realm cannot be governed without a Head which is the King Agreable to that of Seneca Ille est vinculum per quod Respublica cohaeret c. And therefore we his loving Subjects are obliged to watch for that him wakes for us And primum virtutis opus est servare servantem caetera If so what an abominable thing must it be to be a violator of Kingly Majesty Crime de Majesty sayes the Mirror est un peche horrible fait al Roy c. Tacitus calls Crimen Majestatis vinculum necessitatem silendi Omnium accusationum complementum And in the Civil Law it is said thus Proximum Sacrilegio crimen est quod Majestatis dicitur id est crimini quo divina Majestas pulsatur High Treason does extend to several parts or kinds viz. Death to Violation to Leaving of Warr to Adhering to the Kings Enemies to Counterfeiting the Great Seal Privy Seal and the Kings Coyn to the bringing into this Realm counterfeit Money to the similitude of His Majesties Coyn of these several parts in their order 1. Touching Death 1. To compass or imagine the death of the King is Crimen laesae Majestatis as appears by Britton and Fleta Briiton thus Grand Treason est a compasser nostre mort Fleta hath this words Si quis mortem Regis ausu temerario machinatus fuerit c. quamvis voluntatem non perduxit ad effectum To depose the King or to take the King by force and strong hand and to imprison him untill he hath yeilded to certain demands this is a sufficient overt Act to prove the compassing and imagination of the death of the King for this is upon the matter to make the King subject and to despoil him of his Kingly Office of Royal Government And so it was resolved by all the Judges of England Hill 1. Jac. Regis in the Case of the Lord Cobham Lord Gray Watson and Clarke Seminary Priests So if divers conspire the death of the King and the manner how and thereupon provide weapons powder poyson assay harness send Letters c. or the like for execution of the Conspiracy this is a sufficient overt act to prove the compassing and imagination of the Kings death If any man shall attempt to make himself so strong that the King shall not be able to resist him he is guilty of Rebellion In the like manner the Law interpreteth that in every Rebellion there is a machination against the life of the King and his deposing For a Rebel will not suffer that King to live or reign which may afterwards punish or revenge such the treason or Rebellion These things are confirmed 1. by the Imperial or Civil Law whereby to do any thing against the safety of the Prince is holden to be treason 2. By the force of reason because it cannot be that which hath once given Law to the King should ever permit that the King should recover his former Authority or live least at any time he should recover it 3. By examplss drawn out of our English History as of Edward the Second and Richard the Second who being by force of Armes gotten by Subjects into their power were not long after deposed also and made away The Civil Law Quamvis regulariter ratione solius consensus nemo ad poenam obligatur sed secuto demum actu Aliud tamen obtinet in crimine in Principe in quo voluntas punitur sed intellige talem voluntatem cum qua conjunctum est initium facti i.e. factio vel conjuratio Sola enim nuda voluntas puniri nequit Note that there is difference taken by our Law between felony and High treason for it is not felony unless there be some act done Non efficit conatus nisi sequatur effectus But if one compass or imagine the death of the King who is the Head of the Common-wealth and declares his compassing or imagination by words or Writing it is High treason Doct. and Stud. lib. 2. cap. 41. Co. 3. Inst f. 5. 12. H. 8. 36. b. 13. H. 8. 13. Bendlones Rep. Smith v. Spurle And therefore these following words were adjudged High treason viz. If the King dye without Issue Male that he would be King and also the party arraigned spake that if the King should commit him to Prison that he would kill him with his dagger So one Crohagan an Irish man was arraigned of Treason for that he being the Kings Subject at Lisbone in Spain used
belli causa and contra jus Gentium yet the killing of him is no Treason within the Stat. of 25. E. 3. until itl be so declared by Parliament as it was in the Case of Kerby and Algere who were attainted for the killing of John Imperial Ambassadour from the State of Genoa but that Declaration was taken away by the Statute of 1. Mar. Whether an Ambassadour which raiseth Rebellion ahainst the Prince to whom he is sent may enjoy the priviledge of an Ambassadour and be not subject to punishment as an Enemy Such an Ambassadour hath by the Law of Nations and by the Civil Law of the Romans forfeited all the Priviledges of an Ambassadour and is subject to punishment If a Foreign Ambassadour fayes Coke committeth here in our Realm any crime which is contra jus Gentium as Treason Felony Adultery or any other crime which is against the Law of Nations he looseth the Priviledg and Dignity of an Ambassadour as unworthy of so high a Place and may be punished here as any other private Alien and not to be remanded to his Soveraign but of courtesy But if any thing be malum prohibitum by any Act of Parliament Private Law or Custom of the Realm which is not malum in se jure Gentium nor contra jus Gentium an Embassadour residing here shall not be bound by any of them but otherwise it is of the Subjects of either Kingdom c. And the reason why private Aliens are bound by our Acts of Parliament Private Laws and Customs is given by the learned Grotius viz. Quia ad gubernationem Populi moraliter necessarium est ut qui ei vel ad tempus se admiscent quod fit intrando territorium ij conformes reddant ejus Populi institutis Whether a Foreign Prince by his dwelling and residing here can commit Treason When a Foreign Prince comes with leave into England he subjects himself under the Protection of the King of England and as by well doing he enjoyes the benefit of the Laws so by ill doing he is subject to the Equity thereof according to that saying of the Lawers He deserveth not the benefit of the Law which offendeth against the Law Otherwise better were the condition of a Foreign Prince offending in another Princes Kingdom than his that reigneth well He is thought also to be a Subject though not originary yet temporary because two absolute Princes in respect of Royal Authority cannot be in one Kingdom at once and therefore it is a received opinion of the learned in the Laws A King without his own Dominions except it be in an Expedition of War is but a private Man and consequently can neither confer nor exercise Royalties Moreover it is said that such a Prince by his offence looseth merum Imperium his meer and absolute Soveraignty and that such are subject by their dwelling only and place of abode might commit Treason and that a Prince hath power or Jurisdict over another Prince that is his equal as often as any hath subjected himself under the Judgment of his Equal either by express words or Covert Contract or by offending within the Jurisdiction of his Equal Vide Cambdens Eliz. in 29. year of her Reign touching the Queen of Scots 2. Misprision of Treason Touching Misprision 4 things are to be principally observed The Etymology of the word its Description its Division and the Punishment therefore 1. The Etymology or Origination of the word Misprision cometh of the French word Mespris which properly signifieth neglect or contempt for mes in Composition in the French signifieth mal as mis doth in the English Tongue as mischance for an ill chance and so Misprise is ill apprehended or known 2. It s Description In legal understanding Misprision of treason is either when one knoweth that another hath committed treason and will not discover him to the King or to the Councel or to any Magistrate but doth conceal the same it is when one hath committed some hainous offence under the degree of treason 3. It s Division Miâ—prision of treason is twofold Passive called 〈◊〉 omissionâ—is as in concealment oâ— not discovery of treason And therefore by the Statute of 5. E 6. concealment or keeping secret of any High treason iâ— declared only Misprision of Treason As for example It is Misprision of High treason in concealing of a Bull from the Pope of Rome So the receiving of one that hath counterfeited the Kings Coyn and comforting of him knowing him to have counterfeited the King Coyn is but a Misprision But by the Common Law concealment of High treason was Treason as appeareth in the Case of the Lord Scrope anno 3. H 5 and by Bracton lib. 3. f. 118. b 119. a. And with our Common Law the words of Isocrates to Nicâ—oles are agreable viz. Eadem poena digni sunt supprimentes hujusmodi faciâ—us qua facinorosi 2. Active called Crimen commissionis as in committing some heinous offence under the degree of Treason as when one fixes an old Seale of a Patent to a new Patent of Non-Residence this is holden to be a Misprision of Treason only for it is an abuse of the great Seale and not counterfeiting of it So if a man know Money to be counterfeit and bring the same out of Ireland hither into England and utter it in payment this is but a Misprision and no Treason So the compassings or imaginations against the King by word without an overt Act is a High Misprision 4. The punishment of this offence In all Cases of Misprision of Treason the party offendour shall forfeit his Goods and Dutie for ever and the profits of his Lands for terme of his life and to be imprisoned during life From which punishment if any will save himself that knoweth of any High treason he ought with as much speed as conveniently he may to reveal the saâ—e to the King or some of his Privy Councel or any other Magistrate Note that in every Treason or felony is included Misprision and where any hath committed Treason or felony the King may cause the same to be indicted and arraigned but of Misprision only if he will 3. Robbing the Kings Treasure The Robbing the King of his Treasure or Money is accounted Dumnum iâ— aestimabile for the Kings Treasure is the sinew of War and the honour and safety of the King in time of Peace The Civil Law doth accord with our Law in this point Peouniae nervus Reipublicae seu beâ—â—iâ—ur itâ—a Imperium sine vectigalibus nullo modo esse potest Cicero Militares expansâ—e Hostium â—icursions multa regent diligentia non possunt â—itra pecuniam haec agi N. 8. 2. 10. 2. Fourscore and one persons whereof the Abbot of Westminster and 48 of his Monks were part brake into the Receipt and feloniously robbed the King of a hundred thousand pounds
ils happen a variance per que illuy ferist en le gule puis en le Teste issint en divers Lieux del corps tanque qu'il fuit mort donques il trahist le corps en le corne les Justices pur sonrendr ' pur ceo que il narroit le matter playnem ent respite le Judgment plusours Justic disont que il fuit deigne mort c. And the Reason is quia malitia supplet etatem with this our Rule do concur the Roman Laws Impunitas delicti propter etatem non datur si modo in ea quis sit in quam crimen quod intenditur cadere potest i. e. si modo sit proximus pubertati ea sentiat in quibus deliquit Malitia minor is etatem justam esse representat ac supplet vel sic Malitioe non succurritur Whether Malice prepensed must be continuing till the mort al wound given Albeit there had been malice between two and after they are pacified and made friends and after this upon a new occasion fall out and the one killeth the other this is Homicide but no murder because the former malice continued not So if A. command B. to kill C. and before the Act be done A. repenteth and countermandeth his Commandment and charge B. not to do it if B. after killeth him A. is not accessory to it for the malicious mind of the Accessory ought to continue to do ill untill the Act done Whether Murder can be committed of a child in utero matris If a Woman be quick with Child and by a Potion or otherwise killeth it in her womb or if a man beat her whereby the Child dyeth in her Body and she is delivered of a dead Child this is a great misprision and no murder But if the Child be born alive and dyeth of the Potion Battery or other cause this is murder for in Law it is accounted a reasonable Creature in rerum natura when it is born alive The Law holden in Bracton's time was si aliquis qui mulierem pregnantem percusserit vel ei venenum dederit per quod fecerit abortivus si puerperium jam formatum fuerit maxime si fuerit animatum facit homicidium And let us now see what the civil Law saith de partu abacto si mulierem visceribus suis vim intulisse quo partum abigeret constiterit eam in exilium preses Provinciae exiget Cicero in oratione pro Cluentio Avito scripsit Milesiam quandam mulierem cum esset in Asia guod ab hberedibus secundis accepta pecunia partum sibi medicamentis ipsa abegisset rei Capitalis essedamnatam Whether it be murder in a Mother to conceal the death of her Bastard Child It is Enacted That if any Woman be delivered of any Issue Male or Female which being born alive should by the Lawes be a Bastard and she endeavour privately either by drowning or secret burying thereof as that it may not come to light whether it were born alive or not but be concealed In every such case the said Mother so offending shall suffer death as in case of murder except such Mother can make proof by one witness at least that the Child whose death was by her so intended to be concealed was born dead Whether he that stabbeth another to death shall suffer as in case of wilful murder It is Enacted That every person which shall stab or thrust any person that hath not then any Weapon drawn or hath not then first stricken the party which shall be so stabbed or thrust so as the person stabbed or thrust shall thereof dye within the space of six months although it cannot be proved that the same was done of malice forethought yet the party so offending and being thereof convicted by the Verdict of Twelve men Consession or otherwise according to the Laws of this Realm shall be excluded from the benefit of his Clergie and suffer death as in case of wilful murder Whether a Murder committed out of the Realm can be tryed by the Common Law If two of the Kings Subjects go over into a Forreign Countrey and fight there and the one kill the other this Murder being done out of the Realm cannot be for want of Tryal heard and determined by the common Law of England but it may be heard and determined before the Constable and Marshal whose Sentence is upon the testimony of witnesses and combat and accordingly where a Subject of the King was slain in Scotland by others of the Kings Subjects the Wife of the party slain had her appeal therefore before the Constable and Marshal and so it was resolved in the 35th year of Queen Elizabeth in the case of Sir Francis Drake who strook off the head of Dowtie in partibus transmarinis that his Brother and Heir might have an appeal So if a man be mortally wounded in France and dyeth thereof in England it is said that an Appeal doth lye upon the statutes of 12 R. 2. c. 2. and 1 H. 4. c. 14. for it is not punishable by the common Law because the stroak was given there where no Visne can come and therefore the same shall be heard and determined before the Constable and Marshal Thus much of Murder proceeding from Malice prepensed and expressed as for Malice implyed it hapneth in three cases 1 In respect of the manner of the deed as if one killeth another without any provocation of the part of him that is slain the Law implyeth malice if one make a wry or distorted mouth or the like countenance upon another and the other immediatly pursues and kills him it is murder for it shall be presumed to bemalice precedent and that such a slight provocation is not a sufficient ground or pretence for a Quarrel One Halloway was Indicted and Arraigned at Newgate for Murthering one Payne the Indictment was that he Ex malitia proecogitata tyed the said Payne at the Horses tayle and strook him two stroaks with a cudgel being tyed to the said Horse whereupon the Horse ran away with him and drew him upon the ground three Furlongs and thereby brake his shoulder whereof he instantly dyed and murdered him Upon this Indictment he being arraigned pleaded nor guilty and thereupon a special Verdict found that the Earl of Denbigh was possessed of a Park called Austerly Park and that the said Halloway was Wood-ward of his Woods in the said Park and that the said Payne with others unknown entred the said Park to cut Wood there and that the said Payne climbed up a Tree and with an hatcket cut down some boughs thereof and that the said Halloway came riding into the Park and seeing the said Payne on the Tree commanded him to descend and he descending from thence the said Halloway stroke him two blows upon the back with
against his will it is no Homicide But Briton cap. 5. De Homicides saith that if one who is not of the mystery of a Physician or Chirurgion take upon him the Cure of a man and he dieth of the potion or Medicine this is saith he Covert felony In the Civill Law it is thus Medico imputari eventus mortalitatis not debet Ita quod per imperitiam commisit imputari ei debet praetextu humanae fragilitatis delictum decipientis in periculo homines inoxium esse non debet Imperitlia culpae adnumerontur veluti si Medicus ideo servum tuum occiderit quia male secuerit aut perperam ei medicamentum dederit Thus much of the Pleas of the Crown that have relation to the life of man I proceed now to those that respect the body and members 2. Of those Crimes that appertain to mans body or members and they are Battery Mayhem and Rape Battery is when a man assaulteth and beateth another this is against the Law and Peace of the Realm which ordaineth that no man shall be his own Judge or revenger of his own private wrong but shall leave this to the Censure of the Law And this is agreable to the Roman Laws Generali lege decernimus neminem sibi esse judicem vel jus sibi dicere debcre In re enim propria iniquum admodum est alicui licentiam tribuere sententiae Again Non est singulis concedendum quod per Magistratum publice possit fieri ne occasio sit Majoris tumultus faciendi wherefore he that is so beaten may indict the other party who upon it shall be fined to the King But some there are that may in a reasonable and moderate manner chastise correct and beat others 1. In respect of power proceeding from the Law of nature as Parents may correct their own Children 2. In respect of Authority oeconomical as the Master may chastise his Servant or Apprentice 3. In respect of power arising from Civil Justice as the Gaoler and his servant the unruly prisoners the Officers him that is arrested and will not otherwise obey Also a man may justify the beating of another in defence of his own person or of the person of his Wife Father Mother or Master But when any is assaulted or beaten in Church or Churchyard it is not lawful for him to return or give any blows in his own defence as he may elsewhere in other places Mahim or maime Mahemium cometh of the old French Mehaigne a Maime a corporal hurt whereby a man loseth the use of any member The Canonists call it Membri mutilationem or Mayhem is where by the wrougful Act of another auy member is hurt or taken away whereby the party so hurt is made unperfect to fight As if a bone be taken out of the head or a bone be broken in any other part of the body or foot or hand or finger or joynt of a foot or any member be cut or by some wounds the sinews be made to shrink or other member or the fingers made crooked or if any eye be put out or the fore-teeth broken or any other hurt in a mans body by means whereof he is made the less able to defend himself or offend his enemy But the cutting of an ear or nose or breaking the hinder teeth or such like is no Mayhem because it is rather a deformity of the body then diminishing of strength and that is commonly tryed by beholding the party by the Justices And if the Justices stand in doubt whether the hurt be a Mayhem or not they use and will of their own discretion take the help and opinion of some skilful Chirurgeon to consider thereof before they determine upon the Cause But whether a man may be indicted for maiming himself To this it answered that he may As it appears in the Case of one Wright anno 11. Jac. in the Country of Leicester who being a yong strong and lusty rogue to make himself important thereby to have the more colour to beg or to be relieved without putting himself to any labor caused his Companion to stricke off his left hand and both of them were indicted fined and ransomed therefore and that by the opinion of the rest of the Justices for the members of every subject are under the safeguard and protection of the King to the end that they may serve the King when occasion shall be offred and therefore not in the power of a subject to maim or hurt his own body or limbs or to cause another to do it And this is agreable to the Civil Law Nemo membrorum suorum est dominus Liber home suo nomine utilem aquiliae habet actionem directam enim non habet quoniam dominio membrooum suorum nemo videtur By the ancient Law of England he that maimed any man whereby he lost any part of his body the Defendant should loose the like part as he that took away another mans life should loose his own And this was grounded upon the Law of God Levit 24 v. 18 19. 20. Deut. 19. v. 21. It is called among the Latines Lex Talionis or Reparationis among the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 per quam quis Patitur quod alteri fecit This offence of May em is under all felonies deserving death and above all other inferiour offences so as it may be truly said of it that it is Inter crimina majora minimum inter minora maximum Rape is the violent deflouring of a Woman against her will and this offence is felony as well in the principal as in his Aiders vide 11. Hen. 4. c. 13. 1. E. 4. c. 1. West 2. c. 13. Cromptons Justice of Peace f. 43 44. But my Lord Coke defines it thus It is when a man hath carnal knowledge of a woman by force and against her will or Rape is felony by the Common-Law declared by Parliament for the unlawful and carnal knowledg and abuse of any woman above the age of ten years against her will or of a woman child under the age of ten years with her will and the offender shall not have the benefit of Clergy Vide 18. Eliz. c. 6. If the party that is ravished conceive by the Ravisher a child at the time of the Ravishment this is no Rape because she could not conceive unless she assent Bracton in 24th chapter of his third book sheweth that by the Antique Law of King Athelstan He that meeting a Virgin sole or with company did but touch her unhonestly was guilty of breaking the Kings Edict It against her will he threw her on the ground he lost the Kings favour if he discovered her and cast himself upon her he lost all his possessions if he lay with her he suffereth Judgement of life and member yea if he were an Horse-man his horse lost his tail and main His hawk likewise lost
rob or to do some other felony but the like offence committed by day we call House-breaking or Robbing and not Burglary and this kind of felony is provided for by the Stat. of 39. Eliz. That if any man shall break a house by day and take away thence money or goods to the value of five shillings or more in any part of the dweling house or Out-house belonging to the same though no person be therein for this felony he shall lose the benefit of his Clergy so as for this offence the party shall suffer death as in case of Burglary Upon this Law happened this Case following Evans and Finch were arrigned at the Gaole delivery of New-Gate for that they about 12. a clock in the fore-noon brake open Domum mansionalem Hugonis Audeley in the Inner Temple no person being in the said house and stole from thence 40. pounds And upon evidence it appeared that the said Evans by a ladder climbed to the upper window of the said Audeley's chamber and took out thereof the said 40. pounds And that the said Finch stood upon the ladder in the view of the said Evans and saw Evans in the chamber and was assisting to the committing of the said robbery and took part of the money And all this matter being found it was adjudged because the said Finch did not enter into the chamber that he was not within the Statute of 39. Eliz. which takes away Clergy where an house is broken open and the robbery is above the value of five shillings no person therein that he should have his Clergy which was allowed him And as for Evans the special verdict found that he was in the chamber of Hugh Audeley in the Inner Temple and that the robbery was committed between 12 and one of the clock in the day time no person being within the chamber at the time of the breaking thereof but that divers persons were in the Inner Temple Hall and in other places of the house And whether this be a breaking open the house and taking of goods above the value of five shillings nnulla persona being within the house and within the said act of 39. Eliz. they prayed the discretion of the Court And it was resolved upon this special verdict being removed by Certiorari into the Kings Bench and the prisoner removed by Habeas corpus that this breaking open the chamber and taking 40. pounds out thereof nulla persona being therein although there were divers persons in other parts of the house was within the Stat. of 39. Eliz. which takes away Clergy from such offenders Wherefore Clergy was denyed to the said Evans and Judgment given in the Kings Bench that he should be hanged Thus much of Burglary and likewise of House-breaking 4. Pyracy The word Pyrat in Latine Pirata is derived from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which again is fetcht from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a transeundo mare of roveing upon the Sea and therefore in English a Pyrate is called a Rover and a robber upon the Sea Having shewed the Etymology I propound these Questions with their resolutions touching Piracy Whether Piracy were anciently treason Before the Statute of 25. E. 3. c. 2. De proditionibus if a Subject had committed Piracy upon another this was holden to be Petit treason for which he was to be drawn and hanged because Pirata est hostis humani generis and it was contrae Ligeantiae suae dehitum but since the aforesaid Satute this is no treason in the case of a Subject Whether Piracy can alter property Piracy does not change property no more then theft at Land Hobart's Reports f. 78. When goods are tortiously taken upon the Sea by Piracy it gaineth not any property in them against the owner and being sold on the Land unless it were in Market overt doth not alter the property The Civil Law speakes thus A Piratis aut latrenibus capti liberi permanent Qui a latronibus captus est servus latronum non est nec post liminium illi necessarium est Piratae quae capiunt non mutant dominium Grotius l. 3. c. 9. n. 16. De jure belli Whether Attainder for Piracy doth work corruption of blood or forfeiture of Lands If Piracy be tryed before the Lord Admiral in the Court of the Admiralty according to the Civil Law and the delinquents there attainted yet shall it work no corruption of blood nor forfeiture of his Lands otherwise it is if he be attainted before Commanders by force of the Statute of 28. H. 8. c. 15. Whether a Pardon of all felonies shall extended to Piracy About the end of the Reign of Queen Elizabeth certain English Pirates that had robbed on the Sea Merchants of Venice in amity with the Queen being not known obtained a Coronation Pardon whereby amongst other things the King pardoned them all felonies It was resolved by all the Judges of England upon conference and advisement that this did not pardon the Piracy for seeing it was no felony whereof the Common Law took Conusance and the Stat. of 28. H. 8. did not alter the offence but ordained a Tryal and inflicted punishment therefore it ought to be pardoned especially or by words which tantamount and not by the general name of felony and according to this Resolution the delinquents were attainted and executed Thus much of Piracy 5. Burning of Houses Burning is a felony at the Common Law committed by any that maliciously and voluntarily in the night or day burneth the house of another Out of which we may observe two circumstances First To make it felony it must be done with malice and will for if it be done by mischance or negligence it is no felony But whether the Law doth sometime imply that the house was burnt maliciously and voluntarily may be a Quaere It is answered it does As if one intend to burn the house of A. only and not the house of B. and yet in the burning the the house of A. the house of B. is burnt in this case the burning of the house of A is felony because it proceeded of the malicious and voluntary burning of the house of A and the event shall be coupled to the cause which was voluntarily and malicious And the rule is Involuntarium ex voluntario ortum habens moraliter pro voluntario habetur Secondly to make it felony it must be the house of another and not his own house As for example One W. Holmes was indicted in London for that he being possessed of an house in London in Throgmorton street in such a ward for six years the remainder to Is for three years the Reversion to the Corporation of Haberdashers in fee He vi armis felonice voluntarie malitiose igne combussit c. his own house Upon this being arraigned at New-Gate he was found guilty add before Judgment
contempt of the King c. and upon this being arraigned and found guilty because the Indictment was not that he did it in presence of the Justices nor in the presence of the King all the Judges agreed that the Judgment of cutting off his hand should not be given and so seriatim they delivered their opinions But because this offence was in the Palace neer the Hall door whereby tumults might have been made and because it was found sitting all the Courts and in disturbance of Justice and Law and in contempt of the King the Court awarded that he should be imprisoned for the said offence during the Kings pleasure and should pay 1000 pounds fine Thus much where the King is present by Representation If any strikes in the Kings Palace where the Kings Royal Person resideth he shall not lose his right hand unless he draw blood but if he draw blood then his right hand shall be strucken off he perpetually imprisoned and fined and ransomed By what hath been said a Man may perceive a great difference between a blow or stroke in or before the said Courts of Justice where the King is representatively present and the Kings Courts where his Royal Person resideth for in the Kings House blood must be drawn which needeth not in or before the Courts of Justice when the Judges are doing of that which to Justice appertaineth and the reason is Quia Justitia firmatur Solium 7. Routs A Rout is when People do assemble themselves together and after do proceed or rid or go forth or do move by the iustigation of one or more who is their Leader This is called a Rout because they do move and proceed in Routs and members Also where many assemble themselves together upon their own common Quarrel and brawles as if the Inhabitants of a Town will gather themselves together to break hedges pales or such like to have Common there or to beat another that hath done to them a common displeasure or such like that is a Rout and against the Law although they have not done or put in execution their mischievous intent if so be they do go ride or move forward after their first meeting Note that there is diversity between committing of a great Rout or the like and Levying of War for example as if three or four or more do rise to burn or put down an Inclosure in Dale which the Lord of the Mannour of Dale hath made there in that particular place this or the like is a Rout a Riot or an unlawfull Assembly and no Treason But if they have risen of purpose to alter Religion established within the Realm or Laws or to go from Town to Town generally and to cast down Enclosures this is a Levying of War though there be no great number of Conspiratours within the perview of the Statute of 25. E. 3. c. 2. because the Pretence is publique and general and not private in particular As it was resolved Pasch 39. Eliz. by all the Judges of England in the case of Richard Bradshaw Miller Robert Burton Mason and others of Oxfordshire 8. Riot Riot in Latine Riotum cometh of the French word Kioter id est Rixari and in the Common Law signifieth when three or more do an unlawful Act as to beat any Man or to hunt in his Park chase or warren or to enter or to take possession of another Mans Land or to cut or destroy his corn grasse or other profit c. By the Statute of 17. R. 2. and 13. H. 4. the Justices of Peace and Sheriff are to arrest those that commit Riot and to record that which they find done in their presence against the Law Each Man that is able ought to help to repress Riots upon pain of Imprisonment and to make fine to the King Evans and Cottington and 7. others were indicted for a Grand Riot that they with others there named to the number of 1000. persons made a Rescous and assault upon Henry Smith a Baylif who by virtue of a Warrant upon a Bill of Middlesex against William Cleer had arrested him and was carrying him to Prison and they procured him to escape The Arrest was at Charing Crost in the Parish of St. Martins and after the Arrest they assaulted the Bayliffes and beat them and the Bayliffes putting the Prisoner into an house for safe keeping against the tumult they assaulted the house and notwithstanding a Justice of Peace assisted with three Constables made proclamation for keeping the Peace and for their departure yet they continued their assault breaking open the house and with ladders taken from the Kings House of White-Hall where the King with His Court was resident upon the 24. of March 13 Car. in the afternoon of the said day made this Riot and Rescous and carryed the Prisoner away through the Kings House and caused him to escape Upon this Indictment 9. of them being arrested pleaded Not-guilty and 4. of them viz. Evans Cottington Groom and Heatly being arraigned were found guilty and 5. of them were found Not-guilty but against three of them was probable evidence that they were aiding to this Riot and Rescous but the Jury acquitted them wherefore because it was so great a Riot and offence being committed so neer the Court it was adjudged that the said four persons which were so convicted should be committed to Prison and every one of them should pay 500. pounds fine to the King And that every of them should stand on the Pillory at Westminster and Charing Cross where the Riot was done and that Thomas Groom who was a Cobler and entered into the house with a drawn sword and a kettle upon his head as an helmet to defend himself should stand on the Pillory with a sword in his hand and a kettle upon his head and should be bound with good secuties for their good behaviour before they should be delivered And the three which were acquitted against whom there was such probable evidence were bound to find securities for their good behaviour Note An unlawful Assembly is when three or more assemble themselves together to commit a Riot or Rout and do it not One or more sayes the Lord Coke may commit a force three or more may commit an unlawful Assembly a Riot or a Rout A multitude as Some have said must be ten or more Multitudinem decem faciunt And so said they it is said de grege bominum But Coke tells us that he could never read it restrained by the Common Law to any certain number but left to the discretion of the Judges In the Civil Law thus Decem homines populum tres Collegium duo Congregationem quindecim turbam constituunt in Jure Civili sed Jure in Communi Angliae tres turbam faciunt 9. Affraies Single Combats and Challenges c. Single Combats or Duels between any of the Kings Subjects of their own heads and for private malice
fortia nulla Et ubi non est principalis non potest esse accessorius As if the principal and accessory be arraigned and both found guilty and the principal has his book before Judgment It was adjudged the accessory shall be discharged and also if the principal confess and hath his book the accessory shall be discharged because Judgment was new given against the principall So where the principal before attainder is pardoned the accessory is discharged It is resolved that where the principal was found guilty of Man-slaughter and not guilty of murder and had his Clergy the accessory shall be discharged for till Judgment it doth not appear judicially that there was a principal But if the principal prayes his Clergy after he hath had Judgment or if he be pardoned yet the accessory shall be arraigned for it appears judicially that there was a principal By what has been said you see that the accessory ought not to be condemned but where the principal is attainted and not where he is convicted only and had his Clergy which Clergy is a Refuge provided by the Common Law in favour of Learning to save the life of an offender Literate in certain cases I say in certain cases because the benefit of the Clergy is taken away in many particulars as 1. For stealing of horses 1. E. 6. c. 33. 2. For robbing dwelling houses c. in or neer the high way 5. E. 6. c. 9. 3. For burning of houses or Burns 5. Ph. M. c. 4. For stealing of 5. Shillings in any dwelling house or any place adjoyning 39. Eliz. chap. 15. 5. For Burglary and Rape 18. Eliz. c. 17. 6. For stealing 12 pence or more without the knowledg of the Person c. 8. Eliz. c. 4. 7. For killing one that hath no weapon drawn 1. Jac. c. 9. c. But to conclude this learning of Clergy It is a Rule whensoever felony is made by any Statute and the benefit of Clergy is not taken away the offender shall have his Clergy The accessory ought not to be put to answer before the principal be attainted for Juri non est consonum quod aliquis accessorius in Curia Regis convincatur antequani aliquis de facto fuerit attinctus And consequentially by the Reversal and acquittal of the principal the dependant Judgment against the accessory cannot stand And this is agreable to the Rules of the Imperial Laws Cum principalis causa non consistat plerumque ne ea quidem quoe sequuntur locum habent Quando res aliqua sit accessoria principali vitiato principali corruit accessorium Thus much of the Rules and now for the Quaeries with Solutions A Man being made accessorie to two whether he can be found accessory to one If an Appeal be brought against two as principalls and against another as accessory to them in this case both of them must be attainted before the accessory be outlawed and if one of the principals be found not guilty the accessory is discharged for the Plaintiff made him accessory to two and therefore he cannot be found accessory to one Qu. 2. Whether the Writing of Letters c. in Favour of a Felon can make him an Accessory Resp If a man write Letters for a Felons deliverance or in favour of him or the like he is no Accessory for that he received not the Felon Qu. 2. Whether the Instructing of a Felon to Read will make the Person Instructing an Accessory Res A Vicar Instructing an Approver which could not Read whilst he was in prison to Read whereby he escaped was adjudged not Accessory to the Felony Qu. 3. Whether the perswading Witnesses not to Appear to give Evidence against a Felon will make one an Accessory to the Felony Res Catlin and Brown Justices of Assize in the County of Suffolk put this Case to all the Judges A man committed Felony in the County of Suffolk for the which he was committed to the Goal and R. an Attorney advised the Friends of the Felon to perswade the Witnesses not to Appear to give Evidence against him which was done accordingly And it was Resolved that neither the Friends nor the Attorney were Accessories to the Felony but it was a great Contempt and Misprision for which they might be fined and imprisoned Hitherto of the Parties in Judgements Criminal The Assistants in Judgements Criminal are of two sorts the one appertaining to the King as the Kings Serjeants his Attorney and Solicitor General and the Clerk of the Crown the other to the party Arraigned assigned to him upon his prayer by the Court The Duty of the Kings Councel learned in the Laws is to manage the Evidence against the prisoner at his Tryal and the Function of the Clerk of the Crown is to frame read and record all Indictments against Traytors Felons and other Offenders Arraigned in the Kings Bench upon any publique Crime Note by the Statute of 2 H 4. this Clerk of the Crown if fourscore or a hundred men be Indicted of Felony or Trespass of one Felony or one Trespass and they plead to an Issue as not Guilty the said Clerk ought not to take for the Venire Facias nor for the Entring of the Plea but two shillings only and not two shillings for every one which Act is made in affirmance of the Common Law So if one man be Indicted of two several Felonies or Trespasses and is acquitted he shall pay but for one Deliverance As to the Councel belonging to the Party Arraigned the Law of England is thus Where any person is Indicted of Treason or Felony and pleadeth to the Treason or Felony Not Guilty which goeth to the Fact best known to the party it is holden that the party in that Case shall not have an Advocate assigned to defend his Cause or alledge any matter for him but if the party Arraigned hath any matter of Law to plead he shall have Councel assigned by the Court to plead the same as to plead a general Pardon or a particular Pardon or to plead in Arrest of Judgement if the Verdict be found against him that the Tryal came not out of the right place as it fell out in Arundels Case convicted by a Jury of wilful Murder or any other matter of Law Sir Humphrey Stafford had an Advocate assigned him concerning the priviledge of Sanctuary from whence he was drawn by Force bnt for the matter of High Treason he pleaded his own Cause But though the party Arraigned upon an Indictment of Treason or Felony and pleading to the Treason or Felony Not Guilty which goeth to the Fact cannot have Councel to give in Evidence or alledg any matter for him yet in Appeals which are the Suites of the Subject Councel is allowed and the Reason why Councel is not prohibited in an Appeal as it is in an Indictment may be this There is no