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
AN ABRIDGMENT OF THE LAWES OF ENGLAND Touching Treasons Rebellious Murthers Conspiracies Burning of Houses Poysonings and other Capital Offences With such Readings thereon as shew the several wayes whereby Offenders in such cases may become Guilty By John Bridall Esq LONDON Printed for John Bellinger in Cliffords-Inne-Lane and Tho. Dring at the Harrow at Chacery-Lane-End in Fleet-street 1679. The general Titles contained in the TABLE ACcessories Affrayes Appeals Approver Assemblies Arraignment Attainder Battery Bribery Burning of Houses Causes Criminal Challenges of Jurors Chance-Medley Clergy Conspiracies Vide Treason Conviction Councel Duels Errors Execution Extortion Felo de se Felony Gifts Homicide Indictment Judgment Criminal Jurors King Larceny Ligeance Lex Talionis Libels Lawes Life Mispristons Murther Malice Mayhem Offences Petit Treason Poyson Piracy Punishment Principals Pain Fort Dure Pardon Rape Riots Robbery Roues Rumours Rebellion Vide Treason Se Defendendo Striking in the Kings Court. Theft Treason Verdict Advertisement THE Campagne of the French King in the Year 1677. In which is described Exactly the Three Sieges and taking in of Valenciennes by Assault and of the Town and Citadel of Cambray and of St. Omers With an Account of the Battel of Cassel Printed for T. Dring in Fleet-street JVs CRIMINIS OR THE Law of ENGLAND TOUCHING Matters Criminal JVS CRIMINIS or the Obligation of Crime is whereby a Subject for a Delict or Offence against the Imperial Crown of England is obnoxious and liable to punishment And a delict or offence is whereby the King and Common-wealth which make but one are injured Of Offences commonly termed Pleas of the Crown some are perpetrated mediatly against the Crown though not principally yet consequentially And some immediatly are said to be committed against the King Himself who is Head of the Common-wealth and in whom all general Injuries reside and to whom the Reformation of all Publique wrongs doth inseperably appertain The former kind may be divided into 3 Classes viz. 1. Into those that have Relation to life it self such as Homicide 2 Into those that respect the Body and Members as Battery Mayhem and Rape 3. Into those that belong to Dominion or property such as Theft and burning of Houses The latter kind do comprehend High-Treason Misprision of Treason Robbing the King's Treasure Bribery Extortion striking in any of the King's Courts where He resides Personally or by Representation and all manner of Breaches of the Publique Peace such as Conjurations Routs Ryots Affrayes Duels Lybels and false Rumours Of these several kinds in their Order 1. Of those Crimes that are committed mediatly contra Coronam dignitatem Regis and do relate to Life it self as Homicides In Homicide are worthy of Observation the Etymologie of it and its general Division Est homicidium Lib. 3. c. 4. nu 3. de corona sayes Bracton hominis Occisio ab homine facta si enim a Bove Cane vel alia re non dicetur proprie Homicidium Est dictum Homicidium ab komine Caedo quasi hominis Caedim And with Bracton doth Concurre in this matter another antient Author viz. Mr. Horne whose very words are these Homicide est Occision de Home per Home fait Mirror c. 1. Sect. 9. car si soit per beste ou mischeance nest Homicide Thus much of the Definition and Origination of the word Homicide As for the right division of Homicide take this as followeth Of Homicides some be done 1. Proposito voluntarily and of malice fore-thought as petty-Treason and Murther 2. Impetu voluntarily and not of malice fore-thought Of these some be Felony as Man-slaughter and some be no Felony Of which some be in respect of giving back inevitably in defence of himself upon an assault of Revenge Co. 3. Jnsti f. 54. and some without any giving back as upon the Assault of a Thief or Robber upon a man in house or abroad Some upon the Assault of one that is under Custody as the Sherif or Gaoler assaulted by his prisoner some in respect that he is an Officer or Minister of Justice without any assault in Execution of his Office or Lawful warrant 3. Casu such as be no Felony neither forethought nor voluntary as Man-slaughters by misadventure Having shewed the Reader Sr. Edward Cook 's division of Homicide I begin with the first Branch viz. Homicide voluntary and of malice fore-thought and this conteines petit Treason and Murder Treason being derived from Trabir which is treacherously to betray Trahue betrayed 1 Petit Treason and Trahison per Contractionem Treason is the betraying it self it is divided into two parts into High Treason and petit Treason It is called High or Grand Treason in respect of the Royal Majesty against whom it is perpetrated Co. 3. Inst f. 4. 20. and Commparatively it is stiled petty Treason in respect it is committed against Subjects and inferior persons so that this petit Treason is when wilful Murder in the Estate Oeconomical is committed upon any Subject by one that is in subjection oweth Faith Duty and Obedience to the party Murdered as in these three Cases following which are only mentioned by the Statute of 25. E. 3. C. 2. de prodicionibus and likewise by Britton Cap. 8. 22. 1. When a servant slayeth his Master This was petit Treason by the Common Law for it appeareth by the Book 12. 12 Ass pl. 30. Ass that a woman servant killed her Mrs wherefore she had Judgment given to be burned which is the Judgment at this day of a woman for petit Treason And herewith agreeth 21 E. 3.17 Upon the Act aforesaid if the servant kill the wife of his Master 19 H. 6.47 Flowdens Com. 86. b. Crompt 20. it is petit Treason for he is servant both to the Husband and wife A servant upon malice pretended shooteth at a stranger and misseth him and killeth his Master being by this is petit Treason in the servant though he intended no hurt to his said Master yet because he intended Murther thereby A Servant commands one to beat his Master Crompt 20. and he killeth him this is petit Treason in the servant if he be present If a servant has an intent to kill his Master Co. lib. 1. Shellies case 99b 10. H. 6.47 Plowdens Com. 260. Co. 3. Inst f. 20. and before the Execution of his purpose departeth out of his Masters service and being out of his service put his Intent in Execution and kills him who was his Master this is petit Treason for the Execution of the Act hath a Retrospection to the Original Cause which was malice conceived when he was a servant A maid-servant conspires to kill her Mistress Moores Reports nu 227. f 91. it is petit Treason in her and Murder in the Actor 2. When a Wife slayeth her Husband The wife maliciously killeth her Husband this is petit Treason in her But if the Husband maliciously killeth his Wife this is
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
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 2 Of the Assistants 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 2 H 4 c 10 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 26 Ass pl 24 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 Co. lib. 6 f 14 Arundels case 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 1. H. 7 â— 22 b. from whence he was drawn by force but 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 Appeal brought Doctor Stud. lib. 2. c. 48. but that of common presumption the Appellant hath malice against the Apellee and therefore if the Judges should in those Cases shew themselves to Instruct the Appellees the Appellants would grutch and think them partial and therefore as well of the Indempnity of the Court as of the Appellee in that Case that he be not guilty the Law suffereth the Appellee to have Councel but when a man is Indicted at the Kings Suit the King intendeth nothing but Justice with Favour and that is to the rest and quietness of his faithful Subjects and to pull away Misdoers among them charitably and therefore the King will be contented that his Justices shall help forth the Offenders according to the Truth as far as Reason and Justice may suffer Note Co 3. Inst 29. that in Scotland in all Criminal Cases yea in cases of High Treason Pars rea may have Councel learned Thus much of the Assistants There is in Criminal or Publique Judgement a two-fold Judg â— Of the Judge one of matter of Fact and that is the Iury whose Office is to find out the truth of the Fact Co Lit. 226. a. lib. 4. Heydons case â—2 a. lib. 9. Dowmans case f 13 a. the other of Law-matters and that is the Kings Justice whose Office is to find out the truth of the Law Ad questionem facti nen respondent Iudices ita ad quoestionem Iuris non respondent Iuratores Of these particularly 1. Of the Iury. Iurors ought to be persons competent and that they be such it is required that every Juror that is returned for the Tryal of the life of man Co Lit 1â—5 b 272 a 78 b. ought to have three qualities 1. He ought to be Dwelling most near to the place where the question is moved for Lex intendit vicinum vicini facta scire Stat. 2. H 5 c. 3 Stat. 2. 2. He that passeth in an Enquest of Life and death ought to have Lands and Tenements to the value of 40 Shillings 3. He ought to be least suspicious that is to be indifferent as he stands unsworn and then he is accounted Liber legalis homo otherwise he may be challenged and not sufferred to be sworn The Determination of the matter of fact by Jurors Co Lit. 226. a. Co. lib. 9. f. 13. a. Dowmans Case is termed in our Law a Verdict in Latin Veredictum quasi dictum veri satis And of Verdicts some are general some special or at large It is called a Special Verdict or at Large because the Jurours find the special matter at large Co. Lit. f. 226. b. leave the Judgment of Law thereupon to the Court Of which kind of Verdict it is said Omnis conclusio boni veri Judicii sequitur ex bonis veris praemissis dictis Juratorum Touching special Verdicts in Crown matters Vide Cro. 3. part Hallowayes case Cookes case f. 537. 2. Of the Judge in matters of Law The Judges that are to decide and discusse matters in Law are bound to observe these particulars § 1. They ought to judge secundum allegata probata Quotiescunque sententiam fert Judex secundum allegata probata ferre debet 2. They ought to see that the Indictment Co. 3. Inst f. 1â—7 Tryal and other proceeding be good and sufficient in Law otherwise they will by their erronious Judgment attaint the Prisoner unjustly 3. The Court ought to be instead of Countel for the Prisoner to see that nothing be urged against him contrary to Law and right Co. 3. Inst f. 29. nay any Learned Man that is present may informe the Court for the benefit of the Prisoner of any thing that may make the proceedings erronious 4. The Jadges ought not to deliver their opinions before hand of any Criminal cause
But in case of an Indictment of death at the Suit of the King auterfoitz attaint de mesme le mort in Appeal is a good Plea Auterfoitz attaint de murder is a good Plea to an Indictment Co. 3. Inst f. 213. c. of Petit treason of the same death for in effect it hath the same Judgment and the self same forfeiture So likewise a Man may be attainted of Man-slaughter it is a good barre to an Indictment of murder of the same death and e converso Thus much of matters Judicial in criminal offences I go on now according to our first proposed Method to the Acts Judicial 8. Of Judicial Acts relating to publik Crimes Touching these Judicial Acts there are worthy of consideration these particulars The manner how Causes criminal are brought to Tryal 2. The Judgment or Sentence upon that Tryal or Arraignment 3. The Execution of that Sentence 4. The means whereby the Judgment or Execution may be escaped or delayed No Man is said to be arraigned 1. The manner of Arraigning a delinlinquent Co. Litt. 263. a. but meerly at the Suit of the King upon an Indictment found against him or other Record wherewith he is charged And there the Arraignment of the Prisoner is to take order that he appear and for the certainty of the Person to hold up his hand and to plead a sufficient plea to the Indictment or other Record whereupon they which follow for the Ring may orderly proceed If the party accused of Treason or Felony c. do at his Arraignment before the Judge deny the offence or as we say plead Not-guilty then shall he be tryed by a Jury of 12 Men dwelling nigh to the Vill where th offence was comitted such Men as to the Party accused be nothing allyed to certify the Judge upon the truth of the fact which at their appearance the Party arraigned may challenge peremptorily upon his own dislike without shewing any cause in favorem vitae the number of twenty in murder and other Felony And in case of High treason Petit treason Co. Litt. 156. b Co 3. Inst f. 227 228. and Misprision of treason he may challenge to the number of 35 And if he challenge peremptorily above 35 in case of Treason or Petit treason he forfeiteth his goods and Judgment of pain fort and dure shall be given against him as one that refuseth the Tryal of Law by challenging 3 full Juries Otherwise in case of Felony for no Law giveth forfeiture for challenging above twenty but the Court is to over-rule the Challenge But note Co. Litt. 156. b. that in case of Treason or Felony the Party arraigned may challenge for just cause as many as he can 2. But if the Party upon his Arraignment in case of Felony refuse to answer according to Law or say nothing he shall not be Judged to be hanged Co. Litt. 391. a. Co. 3. Inst 14 217. but for his contempt he shall undergo pain fort and dure which makes no Attainder for the felony nor forfeiture of his Lands nor corruption of Blood Otherwise in case of High treason for if the Party refuse to answer according to Law or say nothing he shall have such Judgment by Attainder as if he had been convicted by Verdict or Confession 3. Co. Litt. 391. a. If the Party arraigned be found Guilty by Verdict or Confession then he is said to be convicted which is before he hath Judgement or Sentence and thereupon he doth forfeit his goods and Chattels But note that the begging of the goods or Estate of the Delinquent indicted of any Treason Felony or other offence before he be convicted and attainted is utterly unlawfull Co. 2. Inst 43. Co. 3. Inst 1â—7 229. Co 3. Inst 229. because before Conviction and Attainder nothing is forfeited to the King nor granted by him And besides it either makes the Prosecution more violent and undue then quiet and equal proceeding of Law and Justice would permit or else by under hand Commission and agreement hinder the due course of Justice for examplary punishment of the offender Note further that before Indictment the goods or other things 2. Of the Judgment or Sentence pronounced of any criminal cannot be searched Inventoried or in any sort seised nor after Indictment seised and removed or taken away before Conviction or Attainder Thus much of the manner touching the Arraignment of a Delinquent Assoon as Judgment or Sentence is pronounced by the Judge the Party arraigned is said to be attainted mort en Lev But though the Delinquent by the Attainder be a dead Person in Law Co. 2. Inst f. 215 213. yet maugre the Attainder his Body may at the Suit of a Subject be taken in execution upon a Judgment or Stat. c. Cro. 1. part Ogâ—â—ll v. Paston Cro. 1. part Trussells Case And he may be executed for Treason or felony notwithstanding such Execution had against him As to Attainder take these Queries together with Solutions Qu. 1. Whether there be a diversity betwixt an Attainder and an Entry into Religion Resp There is a great difference between an Attainder of treason or felony and an Entry into Religion for he that is attainted of treason or felony Co. 3. Inst f. 215. hath capacity and may purchase Lands to him and his Heirs but so cannot he that is entered into Religion Qu. 2. When a felony is perpetrated whether there be a Discrimination in Law betwixt purchasing of Lands before and after Attainder Resp If a Man commit felony and after purchase Land and then is attainted he has capacity to purchase but not to hold it for in that case the Lord of the fee shall have the Escheat Co. Litt. f. 2. b. But if a Man attainted of felony purchase Lands in this case the King shall have it by his prerogative and not the Lord of the fee for a Man attainted hath no capacity to purchase but only for the benefit of the King Qu. 3. Whether a Person attainted after a Pardon can have an Action of Battery c. committed before the Pardon Resp If a Person be beaten Co. 3. Inst 215. or maimed or a Woman attainted be ravished after Pardon they shall have an Action of Battery Appeal of Maime or Rape It is to be known Co. Litt. 390. b. Perkins ss 27. that there be two manner of Attainders the one after appearance and that in 3 manners by Confession by Battel or by Verdict the other upon Processe to be outlawed which is an Attainder in Law But upon every one of these Judgment ought to be given otherwise it shall not be said an Attainder Now as upon conviction a Delinquent forfeiteth his good and Chattels so upon Attainder that is by Judgment given his Lands and Tenements are forfeited But touching the forfeiture of Lands there is a diversity betwixt an Attainder of felony by outlawry upon an
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.