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
si minus idoneus sit levius castigatur Si fortuito incendium factum sit D. 49.9.11 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 Crimen laesae Majestatis 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 Masesty sayes the Mirror est un peche horrible fait al Roy c. Tacitus calls Crimen Majestatis vinculum necessitatem silendi Omnium acousationum complementum And in the Civil Law it is said thus D. 48.4.1 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 Vide D. 48.4.1 ad Legem Juliam Majestatis 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 Crobagan an Irish man was arraigned of Treason for that he being the Kings Subject at Lisbone in Spain Cro. 3. part Crohagans Case f. 332. used these words I will kill the King innuendo Dominum Carolum Regem Angliae if I may come unto him and that in August 9. Car. Regis he came into England for the same purpose To this he pleaded Not-guilty and was tryed by a Jury of Middlesex and it was directly proved by two Merchants that he spake these words at Lisbone in Spain in great heat of speech with Captain Baske and added these words Because he is an Heretick and for that his traiterous intent and the imagination of his heart is declared by these words it was held High treason by the course of the Common Law and within the express words of the Statute of 25. E. 3. And he coming into England and being arrrested by Warrant for this cause most insolently put his finger into his mouth and scornfully pulling it out said I care not this for your King c. all which speeches and actions though he now denyed the Jury found him guilty whereupon he had Judgment accordingly He confessed that he was a Dominican Fryer and made Priest in Spain And although this and his returning into England to seduce the Liege-People were Treason by the Stat. of 23. Eliz. yet the Kings Atturney said he would not proceed against him for that cause but upon the Stat. of 25. E. 3. of Treason So one Henry Challercomb was indicted of Treason for words and was found guilty and executed So John Williams was also indicted found guilty and executed for writing a Treasonable Book called Balaam Case These two last Presidents you may see cited in Pyne's Case in Crokes third part of his Reports It is commonly
calling him therein Traitour perjured Judge and scandalizing all the Professours of the Common Law and containing much other scandalous matter and fixed this Libel upon the great Gate at the entrance of Westminster Hall and in divers other publick Places And being upon this arraigned prayed that Councel might be assigned which was granted and he had them but would not be ruled to plead as they advised but put in a scandalous plea and insisting upon it affirmed that he would not plead otherwise whereupon it was adjudged He should be committed to the Marshall and that he should stand upon the Pillory at Westminster and Cheapside with a Paper mentioning the offence and with such Paper be brought to all the Courts at Westminster and be continued in Prison until he made his submission in every Court and that he should be bound with sureties to be of good behaviour during his life and should pay a thousand pounds fine Adam de Ravensworth was indicted in the Kings Bench for the making a Libel in writing in the French Tongue Mich. 10. E. 3. Coram Rege Rot. 92. Ebor. against Richard of Snowshal calling him therein Roy de Raveners c. wheupon he being arraigned pleaded thereunto Not-guilty and was found guilty So by what has been said a Libeller or publisher of a Libel committeth a publick offence and may be indicted therefore The words of the Civil Law touching Libellers are these Injuria committitur Just 4.4.1 si quis ad infamiam alieujus Libellum aut Carmen aut Historiam scripserit composuerit ediderit dolove malo fecerit quo quid eorum fieret Si quis famosum Libellum sive domi Cod. 9.36 De famosis Libellis sive in publico vel quocumque loco ignarus repererit aut corrumpat priusquam alter inveniat aut nulli confiteatur inventum Si vero non statim easdem Chartulas vel corruperit vel igni consumpserit sed vim earum manifestaverit sciat se quasi authorem hujusmodi delicti capitali sententiae subjugandum 11 and last False Rumours and slanderous news None shal report slanderous news whereby discord may arise between the King and his People 3. El. c. 34. or Great Men of the Realm And he that doth so shall be taken and kept in Prison until he hath brought him into the Court which was the first authors of the tale The penalty is the same for telling slanderous lies of the Great Men of the Realm 2. R. 2. c. 5. But by the 12. 12. R. 2. c. 12. R. 2. it is enacted that when any such is taken and imprisoned and cannot find him by whom the Speech be moved that he be punished by the advice of the Councel notwithstanding the said Statutes Note Inter Leges Alvaredi c. 28. the Law before the Conquest was That the Author and Spreader of false Rumours amongst the People had his tongue cut out if he redeemed it not by the estimation of his head To conclude It may easily and manifestly appear to all such as have been conversant in our Chronicles how pernicious and dangeto this our Kingdom unlawful Assemblies and false Rumours have been in all precedent Ages yea such as at the first were very small and inconsiderable and began upon very small occasions yet not being repressed in time grew to such greatness and height that they afterward put in hazard the State and Government of this Land And therefore it is behoveful and good wisdom for all Magistrates and Justices of Peace to endavour by all good means to quench the beginnings and first sparks of such offences as knowing that for want of timely restraint they may soon grow to like danger again And the axiome in our Law is Interest Reipublicae ut pax in Regno conservetur quaecumque paci adversentur provide declinentur i. e It it most necessary in a Common-wealth to provide that tranquility and peace be continued in the Realm and that all things being contrary thereunto may by foresight be eschewed Thus much of the first Part of my Treatise I proceed to the Second Judicium Criminis OR THE JUDGMENT OF ENGAND Touching PLEAS OF THE CROWN CONCERNING Judgments Criminal I shall present these particulars worthy of the Candid Readers observation 1. The Definition of punishment 2. The end of punishment 3. The Division or several kinds of punishment found in our Authours 4. The rules to be observed by our Judges for the inflicting of pains or punishments 5. The circumstances to be weighed in relation to punishments 6. The persons to be considered in Criminal Judgments 7. The matters of Judgements Criminal 8. The Judicial Acts according to our Law Of these in their order 1. Of the Definition of punishment Punishment in general signification is Malum passionis quod infligitur ob malum actionis Mirror c. 4 sect 12. but particularly it is defined by Mr Horn thus Payne est a satisfaction de Trespasse 〈◊〉 de peche 2. Of the end of punishment The principal end of punishment in our Law is that others by example may fear to offend Co. 3. Inft. f. 4. 6. 108. Co. Lib. 4. Beverleys Case 124. a b 3. H. 7. 1. b. Vt poena unius sit metus multorum and therefore a Man that is non compos mentis or an Infant that is within the age of discretion is not un Home within the statute of 25. E. 3. c. 2. de proditionibus for the end of punishment is that others may be deterred from the perpetration of similar offences But such punishment can be no example to mad Men or Infants that are not of the age of discretion Touching the end of punishment I shall offer the saying of Quintilian and Seneca Quintilian hath these words Omnis paena non tam ad delictum pertinet quam ad exemplum Seneca thus De C. C. l. 1. c. 21. In vindicandis injuriis haec tria Lex sequuta est quae Princeps quoque sequi debet ut aut eum quem punit emendet aut ut paena ejus caeteros meliores reddat aut ut sublatis malis securiores caeteri vivant 3. Of the Divisions or several modes of punishment The kinds or modes of pain whereby delinquents are asserted are these saith Bracton Sunt quaedam quae adimunt vitam Lib. 3. c. 6. Tract 1. de Actionibus vel membra sunt quae auferunt Civitatem Burgum vel Provinciam Sunt quae continent auxilium perpetuum vel ad tempus vel coercitionem ss Imprisonamentum vel ad tempus vel ad perpetuum Sunt quae fustigationem verber ationem poenam Pilloralem Tymboralem damuum cum infamia inducunt sunt etiam quaedam quae dignitatis ordinis inducunt depositionem vel alicajus actus privationem vel probibitionem The Division of Fleta is thus Personalium injuriarum quaedam sunt criminales quaedam Civiles Lib. 1. c. 16. Criminalium
viz. that he of malice prepensed killed IS A. pleadeth that he is not guilty modo forma yet the Jury may find him guilty of Man-slaughter without malice prepensed because the killing of IS is the matter and malice prepensed is but a circumstance From Accusation both by way of Appeal and Indictment which is as it were the Declaration I proceed to the Pleas of the Parties accused which are denominated exceptions Now the Pleas or Exceptions in Indictments or Appeals are these § Anterfoitz attaint d'un auter offence Auterfoitz Acquit Auterfoitz convict de mesme le Felony devant Iudgement Auterfoitz convict d'un auter Felony auterfoitz attaint de mesme le offence Of these briefly in order 1. Auterfoitz attaint d'un auter Offence It is a sore saying which some Men have to plead for themselves viz. That they are already condemned to be hanged and ask Judgment whether during the attainder they should answer to the felony whereof they are condemned or to any other And this plea serveth where the Party condemned hath already forfeited as much as he can forfeit so that it is to no purpose to travel him any further But in some special cases when there is some end of it a Man already condemned may be arraigned again As if a Man attainted of felony Co. 3. Inst f. 213. were guilty of Treason also at the time of the felony committed he may now be put to answer the Treason notwithstanding his Attainder of felony because the King thereby was entitled to have the forfeiture of all his Landes of whomsoever they were holden 1. H. 6.5 Otherwise it is if the Treason were committed after the Felony or at the least if it were after the Attainder had of the felony for then the Title vested in the Seigniours before the Kings Title might not be devised by matter accruing ex post facto but if a Man be attainted of Treason he cannot be after attainted of a former Treason v. Cro. 2. part Sr Walter Rawleighs Case 495. But the Queries may be Qu. 1. Whether in divers Appeals of Robbery against one Person he shall be attaint at every one of their Suits Resp It is answered The Womans Lawyer lib. 5 sect 13 that if divers Men have divers Appeals of Robbery against one to the end that every Man may have again his goods were of he was robbed by making fresh Suit he shall be attaint at every one of their Suits Qu. 2. Whether an Appeal of Robbery doth lye for a Robbery done before the felony of which the Party was attainted Resp It is answered that the Party may have his Appeal of Robbery Co. 3. Inst f. 213. for a Robbery done before the felony whereof he was attainted because in the Appeal he is to have Restitution of his goods besides Judgment of death Qu. 3. Whether a Man attainted of Petit Larceny can be after attainted of Felony Resp It is answered If a Man be attainted of Petit Larceny Ibid. he may be attainted of felony for the which he shall have Judgment of death because it is an higher offence and is to have another Judgment Qu. 4. Whether a Man attainted of felony and pardoned shall answer at the Kings Suit to other felonies committed before and whereof he was not indicted at the time of the Attainder Resp It is answered that per aliquos videtur quod ita as well as at the Suit of the Party in an Appeal yet some held otherwise 10. H. 4. That a Man can die but once at the Suit of the King and he that is pardoned is as a New Man all Judgments as against the King being determined But note If a Man be adjudged to his Penance of Paine Dyer 14. Eliz. 308. Cobhams Case Fort and Dure yet he may be impeached for any former felony because the Judgment is not given for the felony but for his Contumacy 2. Auterfoitz acquit This Plea the Common Law doth allow because it commandeth that a Mans life should not be put in Jeopardy twice for one and the same offence But then the Acquital must be of the very same offence or else his Plea is to no purpose Therefore if two Men be indicted of felony as principals and afterwards by another Indictment it is found that one of them did the felony and the other did feloniously receive him after the felony committed he that is secondarily indicted and arraigned as accessary shall not be discharged by pleading arraignment and acquital upon the first Indictment for the offence is not supposed the same and one but committed at divers daies 27. Ass Pl. 10. And this for Accessaries after the felony But when felony is done by force of Commanding and procurement of another he that shall be arraigned as Accessary may plead that he was acquit c. though it were as principal and the offences were at divers daies for vulnus praeceptum factum sunt quasi unum factum Note in an Indictment or Appeal of death Co. 3. Inst f. 213 214. if it be found that he killed him in his own defence he is acquited of the felony for ever 3. Auterfoitz convict de mesme le felony devant Iudgement If a Man commit murder and be indicted Co. Lib. 4. Holecrofts case convict or acquitted of Man-slaughter he shall never answer to any other Indictment of the same death for all is one and the same felony for the same death Wetherel brought an Appeal against Darby of murder Co. lib. 4. fol. 40. a. the Defendant pleaded Nan culpable and was found guilty of Man-slaughter and had his Clergy afterwards he was indicted of murder and upon it arraigned at the Kings Suit and he pleaded the former conviction in the Appeal at the Parties Suite and it was adjudged a good Barre ad thereupon discharged for this was a good Barre at the Common Law and restrained by no Statute and the reason is because the Life of Man shall not be put twice in Jeopardy for the same offence 4. Auterfoitz convict d'un auter felony Before the Statutes of Qu. Eliz. c. 4. and 18. Eliz. c. 6. If a Man had committed divers felonies if he had been indicted of the last and had the benefit of his Clergy he could not have been impeached for any of the former felonies albeit for the same he could not have had his Clergy by the Act it is provided that notwithstanding the allowance of such Clergy he may be impeached for any former offence for which he could not have had his Clergy 5 and last Auterfoitz attaint de mesme le offence Auterfoitz attaint of the same felony was a good Plea Co. 3. Inst 213. as well in an Indictment as in an Appeal at the Common Law But by the Stat. of 3. H. 7. c. 1. in an Appeal of death at the Suit of the Party auterfoitz attaint de mesme le mort is no Plea at this day
Appeal and upon an Indictment for in the case of an Appeal of death or other felony Co. Litt. 390. b 13. a b. Process being awarded against the Defendant and hanging the Process the Defenfendant conveyeth away the Land and after is outlawed the conveyance is good and shall defeat the Lord of his Escheat But if a Man indicted of felony and hanging the Process against him he conveyeth away the Land and and after is outlawed the conveyance shall not in that case prevent the Lord of his Escheat For in the case of the Appeal the Writ containeth no time when the felony was committed and therefore the Escheat can relate but to the outlawry pronounced but the Indictment contriveth the time when the felony was committed and therefore the Escheat upon the outlawry shall relate to that time But note that in case of an Indictment there is also a difference observed for as hath been said it shall refer to the time alledged in the Indictment for avoiding of Estates Charges and Incumbrances made by the Felon Co. Litt. 390. b. Plowd Com. f. 488. b. after the perpetration but for the mean profits of the Land it shall relate only to the Judgment as well in the case of outlawry as in other Cases There is a Question raised in the Case betwixt Grosse and Gayer viz. Whether an Attainder to a praemunire Cro. 3. part f. 172 173. shall have relation to the offence for the forfeiture of his Lands or only to the time of the Judgment pronounced But the Judges did give no Resolution of it being a point of difficulty Note Perkins sect 29. All the Attainders as to Goods and Chattels shall have relation but unto the Judgment given so that a gift c. made of such Goods by a Felon before the Judgment is good Touching Alienations by a Criminal the Civil Law says thus Post contractum capitale Crimen donationes factae non valent ex constitutione Divorum Severi Antonini D. 39.5.15 Si quis mortis causa donaverit D. 39.6.7 poena fuerit capitis affectus removetur donatio ut imperfecta quamvis caeterae donationes fine suspitione poenae factae valeant Having shew'd the Law touching Alienations I shall present to the Reader 's view the things imply'd at this day both in the Judgment of Treason and Felony 1. In the Judgment of High Treason In the Judgment relating to Crimen laesae Majestatis is imply'd at this day First Co. 3. Inst 211. Co. 3. Inst 19. 26. H. 8. c. 13.33 H. 8. c. 20.5 6. E. 6. c. 11. the forfeiture of all the Traitors Mannors Lands Tenements and Hereditaments in Fee simple or in Fee Tayle of whomsoever they be holden Also of Rent-Charges Rents seck Commons Corodys and other Hereditaments which are not holden for in case of High treason the Tenure is not material Also of Uses 33. H. 8. c. 20.5 E. 6. c. 11. Co. lib. 7. Inglefields Case Conditions unless inseparably knit to the Person of Rights of Entry of Lands in the Right of the Wife during the Coverture of the profits of Land which the delinquent hath for life during his life of trusts in Chattels Reals but not of Freehold Cro. 2. part f. 512. Pl. 23. vid. Andersons Reports Inglefeilds Case Co. lib. 12. f. 6. Dyer 288. b 289. a. Note that Rights of Actions where the Entry is taken away are not forfeitable Secondly his Wife to lose her Dower Thirdly he shall lose his Children for they become base and ignoble Fourthly he shall lose his Posterity for his Blood is stained and corrupted and they cannot inherit to him or any other Ancestor Fifthly all his Goods and Chahttels are forfeited c. and reason is says Coke his Body Lands Coods Posterity c. should be torn pulled asunder and destroy'd that intended to tear and destroy the Majesty of Government 2 In Judgement of Felony A felon impliedly is punished in these particulars 1. Co. Litt. f. 41. a. 392. a b. Co. 3. Iust 47. He doth lose his Children that they shall become base and ignoble 2. He shall lose his Posterity for his blood is stained and corrupted that they cannot inherit unto him or any other Ancestor 3. He shall forfeit all his Lands and Tenements which he hath in Fee and which he hath in taile during his life 4. All his Goods and Chattels Note that before the Stat. 1. E. 6 c. 2 5. E. 6. c. 11. the Wife of a Person attainted of Misprision of treason Murder or Felony losed her Dower but since she is dowable by these Statutes Hitherto of the Judgment or Sentence it self In doing of Execution 3. Execution of the Judgment pronounced both in Treason and Felony two things are worthy of the Reader 's notice Co. 3 Inst f. 52.211.212 1. That it be done by the right Officer as the Sheriff or Marshal for if any other execute offendours it is felony Execution must be made by the Sheriff or Marshal according to the Judgment for it is a maxime in the Law of England Non alio modo puniatur quis quam secundum quod se habeat Condemnatio Punishment may be avoided or escaped 4. Of the means by which the Judgment or Execution may be avoided in part or in all in part or totally either 1. By the means of Justice as By Writ of Error or Falsifying the Attainder 2. By the means of Mercy as By the Kings Pardon or By Restitution of these in their order 2. Of Writs of Error If the Judgment be erronious both the Judgment and Execution thereupon and all the former proceedings shall be reversed by Writ of Error but if the the former proceeding and the Execution be erronious the Execution only shall be reversed 2. Of Falsifying Attainder To falsify in Legal understanding is to prove false that is to avoid Co. 3. Inst f. 210. or to defeat the Attainder in Latin Falsare seu falsificare falsum facere Wheresoever the Judgment is void or coram non Judice Co. 3. Inst f. 231. the party is not driven to his Writ of error but may falfify the â—ttainder by Plea shewing the special matter which proveth it void or coram non Judice In which case the Party forfeiteth neither Lands nor Goods If a Man committeth Treason or felony and is thereof attainted in due form of Law and after this Treason or Felony is pardoned by a general Pardon hereby the foundation is self viz. Treason or Felony being by Authority of Parliament is discharged pardoned Dyer 20. Eliz 135. Co. Lib. 6. f. 13 14 in Arundels Case the Attainder being builded thereupon cann't stand but may be satisfy'd and avoided by Plea for he hath no other Remedy by Writ of error or otherwise If A be indicted before the Coroner for the death of another and that A fled for the same hereby are all the Goods and
2 Petit Treason What it is 3 How many ways it happens 3 4 What may be said Petit Treason in a Servant 4 Execution of a Servants Act hath a retrospection to the Original cause Ib. What may be said Petit Treason in a Wife 5 Parricide whether Petit Treason or not 6 7 Poyson How many ways a Man may be poysoned 35 36 Piracy The Etymology of the word Pirat 70 71 Piracy where antiently Treason where not Ibid. It alters not property unless it be in Market overt Ib. Where there shall be no corruption of blood in case of piracy 71 72 Where a Pardon of all felonies shall not extend to Piracy Ib. Punishment It s definition 113 The true end thereof 114 It s several sorts in our Law in the Jewish and Romane Laws 114 115 116 117 Circumstances observable relating to punishments 120 Principals In Treason all are principals 123 Rules touching principals Ib. Where a Man may be principal though he be not present at the Act. Ib. Where a Man may be principal as well before as after though he be absent at the doing of the fact 124 Where the being present and abetting an offence makes all principals though the offence be personal Ibid. Where the Attainder of an Accessary depends upon the Attainder of the principal 128 Pain Fort Dure In what cases a Man that stands mute shall have Judgement of Pain Fort and Dure and in what not 150 Where the Judgement of Pain Fort and Dure shall be no Plea to a former felony 146 Pardon The Description and Etymology of it 158 159 How many sorts of Pardons there be Ib. Where a Writ of Allowance is necessary to a Pardon and where not Ib. 160 Rape c. 83 84 Riots The Description of a Riots and its derivation 101 Stat. touching Riots Ibid. What number of Persons may commit a Riot a Rout ad unlawful Assembly 103 Robbery It s definition 60 The Difference betwixt a Robber and a Cut-purse 63 What shall be a taking in case of Robbery and what shall be said a taking from his Person 63 64 65 The Thieves reception only may make a Robbery 64 Routs The description of a Rout. 98 The difference between a Levying of War and committing a great Rout c. 100 101 Rumours The punishment before the Conquest and what since of those that are authors of false Rumours 110 They were heretofore very dangerous to our Kingdom Ib. Se Defendendo What Homicide se defendendo is 44 Where a Man ought to give back to prevent Homicide where not 45 46 Sacrilege 68 69 70 Striking in the Kings Court. A diversity betwixt a stroke in or before the Courts of Justice and the Kings Courts where His Royal Person resideth 99 Where to strike in Westminst Hall or the Kings Palace is a great Misprision the punishment of it 97 98 Theft The Etymology of the word Furtum 55 Its Definition Ib. Forbidden by the Law of Nature Ib. The several sorts of Theft Ib. Treason It s derivation and how divided 3 Violation of Royal Majesty a most abominable thing 75 76 To compasse or imagine the death of the King High Treason 76 What are sufficient overt Acts to prove the imagination of the Kings death Ib. 77 In every rebellion by Interpretation of Law there is a machination against the Life of the King 77 A diversity betwixt Treason and Felony 78 Where words or Writing are sufficient overt Acts of Compassing the Kings death Ibid. Where words may make a Heretique but not a Traytor 80 No words are Treason unless made so by some particular Statute Ib. No Treason at this day but what is made by the Stat. of 25 E. 3. Where to set a figure to know how long the King shall live or Reign is no Treason Ib. Where to practise to depose the King to imprison him or to take him into their power shall be Treason 76 77 The compassing or imagining the death of the Queen or Prince is High Treason 81 Where slaying the Chancellor c. shall be High Treason Ib. Carnal knowledge of the Kings Consort the Kings Eldest Sons Wife or of the Kings Eldest Daughter Treason Ib. What shall be said Levying of Wartomake it Treason 82 83 To go in Warlike manner with a multitude to assault a Privy Councellor at his House is Treason Ibid. The breaking of a Prison wherein Traitors be in Durance and causing them to escape is High Treason though the Parties did not know there were any Traitors there Ib. There must be Levying of War de facto to make it Treason Ib. What shall be said an adhering to the Kings Enemies to make a Treas within the Stat. of 25. E. 3. 83 84 Where a conspiracy with a Foreign Prince shall be Treason and where not 84 85 The aiding and succouring a Rebel beyond Seas is no Treason Ibid. Who shall be said Enemies and who Traitors Ibid. To counterfeit the Great-Seal or Mony is Treason Ib. Forging the Kings Coyn without uttering it is High Treason 85 86 Bringing into the Realm counterfeit Coyn High Treason 87 By the Antient Law a Mad-Man might be guilty of High Treason 88 Where a Non compos mentis cannot be guilty of High Treason at this day Ib. What Aliens may commit Treason Ib. Where the killing of an Embassador was adjudged High Treason 89 An Embassador shall loose the Priviledges of an Embassador for committing High Treason Ib. A Foreign Prince by residing here may commit Treason 90 91 The Judgement in Treason for Counterfeiting Mony 86 Verdict The signification and derivation of the word 133 Several kinds of Verdicts Ibid.