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
nisi modum excedant quia emendationis non injurioe gratia videntur adhiberi puniuntur cum quis per iram ab extraneo pulsatus est 2. Persona nam magis delinquit qui patrem vel matrem vel dominum interficit 3. Locus qui facit ut idem sit furtum vel sacrilegium secundum hoc minor poena vel major 4. Tempus hoc discernit proedonem a fure a Burglatore furemque diurnum a nocturno 5. Quantitas hoec discernit furene ab Ambiguo plus enim peccat qui gregem surripuerit quam qui ovem 6. Eventus ut si ex voluntate conscientia certa fecerit quis aliquid sicut homicidium an ex eventu Et secundum hoc aut erit felonia aut infortunium Gothofredus on the Digest hath these words In factis dictis scriptis Consiliis Causa Persona Locus Tempus Qualitas Quantitas Eventus consideranda sunt Quintil. 6. Inst Atrocitas crescit ex his quid factum sit a quo in quem quo animo quo loco quo tempore quo modo 6. Of the Persons to be coesidered in Criminal Judgments The Persons that constitute Judgment criminal are § Parties Assistants and Judge 1. Of the Parties in Judgment Of these in their order The Parties are Accuser and Accused called sometime Appellor and Appellee sometime Indictor and Indictee Britton telleth us Cap. 22. that it is not for every Person to accuse or appeal for a Man outlawed neither he that hath forjured the Realm nor a Man attainted nor an Approver that hath failed in his probation nor an Infant within the age of 14 yeares nor a mad Man nor an Ideot nor a mute nor one that is deaf nor a leper nor a Man within Holy Orders are not receivable in Appeals c. The Mirror saith that Women Infants Ideots Lepers c. 1. sect 3. or Professours in Order of Religion or Clerks or Persons attainted of felony or non compes mentis cannot be Approvours Now an Approvour is he who hath committed some felony which he confesseth and appealeth or approveth that is to say accuseth others which were coadjutours or helpers with him in doing the same or other felonies which thing he will approve and this proof is to be either by Battaile or by the Countrey at his election that appealed This Accusation is often done before the Coroner who either is assigned to the felon by the Court to take and record that which he saith or is called by the felon himself and required for the good of the Prince and Common-wealth to record that which he shall say If upon his appeal all those Partners be convicted the King ex merito Justitioe is to pardon him But it is in the discretion of the Court either to suffer him to be an Approver 21. H. 6.29 b. 34. b. or after his approvement to respite Judgment and execution until he hath convicted all his Partners Note If a Man that is of good fame be appealed by an approver by which he is apprehended and kept in prison yet het may have a writ to be directed to the Sheriff commanding him to suffer the Party appealed to be Bayled by good sureties But if a Man appealed by an Approver be kept in prison and afterwards the Approver dieth there he may sue a Writ directed to the Sheriff to suffer him to be Bayled upon good surety if he be not a notorious felon although he be not of good fame Fitzh N.B. 250. d. Note further that before Indictment no person can approve because if his approvement be false 43. Ass Pl. 39.15 E. 3. Cor. 113.11 H. 7.5 no Judgment whatsoever he confessed can be given against him unless he be indicted and no Judgment can be given against him if his Appeal be false but of the offence contained in the Indictment and so are the Books to be understood Thus much of the Party accusing As for the party accused or appealed he is alwayes arraigned either as principal or accessary Of these distinctly and apart 1. Of Principals It is a sure rule that in alta proditione Co. 3. Inst 138. nullus potest esse accessorius sed Principalis solummodo As if many men conspire to Levy War Co. 3. Inst f. 9. and some of them do Levy the same according to the conspiracy this is High treason in all for in Treason all be principalls If a man committeth Treason 19. H. 6.47 3. H. 7.10 Co. 3. Inst f. 138. and thereby becometh a Traitor if any other man knowing him to be a Traitor doth receive comfort and aid him he is guilty of Treason as principal for that there be no accessaries in High Treason Note Co. Litt. 57. b. Co. 3. Inst 20 21.57 Inst 20 21. Co. 3. Just 138. Co. lib. 4. Vaâ—xes Case Plowd Com. 47â— Saunders's Case Co. lib. 9. Gores case that in the lowest offences there are no accessaries but all are principals as in Riots Routs c. There is another rule Nullus dicitur felo principalis nisi actor aut qui proesens aut auxilians actorem ad feloniam faciendam But this rule hath his exceptions for in ease of poysoning if one layeth poyson for one or infuseth it into a broth or the like albeit he be not present when the same is taken and either the party intended or another is poysoned yet he is a principal and in that case both the principal and procurer or accessory may be absent So there is a felony wherein all be principals Co. 2. Iust 138. Co. 3. Inst f. 61. as well before as after though they be absent at the doing of the felony but this is specially provided by the Statute of 3. H. 7. c. 2. of Taking Women against their wills Note If any be present abetting and aiding any to do an Act Co. 3. Inst f. 59. 3 4. P. M. Justice Dalisons Reports though the offence be personal and to be done by one only as to commit a Rape not only he that doth the Act is a Principal but also they that be present abetting and aiding the misdoer are principalls also 2. Of Accessary In case of felony as there be principals so there be Accessories and accessories be of two sorts by the Common Law and by the Statute Law Accessory by the Common Law is also of two sorts § 1. Accessory before the offence or fact and it is he that commandeth or procureth an other to commit felony and is not there present himself when the other doth it but if he be present then he is also a principal As where I. S. doth hold I. X. and commands I. D. to kill him whereupon I. D. doth give him a wound to his heart whereof he instantly dies It is held that both be principals because both are parties to the wound 13. H. 7.10 a. So a Woman servant conspired to rob her Mistress and
therefore when she taketh another Husband cessante causa ceffat effectus and her Appeal is gone as la Widdowes Quarentine is determined when she is once remarried 3. 1. Robbery Of wrong done to the Appellants themselves as Robbery Rape and Maihem If in an Appeal of Robbery Co. 3. Inst f. 227. the Plaintiff omit any of the goods stoln they are forfeit to the King for the favour which the Law persumeth the Plaintiff beareth to the Felon and for that he cannot have restitution for more then is in his Appeal If the Jury find in an Appeal of Robbery for goods 2. E. 3. Cor. 367 368. that the Defendant found them in the High-way in this case the Plaintiff for his false Appeal seeking the blood of the Innocent shall forfeit his goods to the King If any Virgin 2. Rape Widdow or single Woman be ravished she her self may sue an Appeal of Rape prosecute the Felon to death and the Kings Pardon cannot aid him But if a Feme Covert be ravished she cannot have an Appeal without her Husband as appears 8. H. 4.21 If a Feme Covert be ravished and consent to the Ravisher the Husband alone may have the Appeal 11. H. 4.13 and this by the Stat. of 6. R. 2. c. 6. And the Husband that this Statute speaketh of which may sue the Appeal must be a lawful Husband in Right and possession for He unques accouple en loyal Matrimony is a good Plea against him An Appeal of Maihem was brought by one Milles. 3. Maihem and the Maihem was assigned in his shoulder and the Defendant demanded the view and it was said that he should not have it because it was done de son tort demesue 21. H. 7.23 b. also it was said that Surgeons may heal and cure him and although he shall be tryed by Inspection of the Court or by Chirurgeons it was held be it one way or other it is peremptory for him c. It was held by all the Justices of the Kings Bench 21. H. 7.40 a. that in an Appeal of Maihem if the Defendant pray that the Maihem may be examined if the Justices or Surveyors which they require be in doubt whether it be a Maihem or not the Judges may refuse the examination and compel the Party to put it upon the Country Thus much of wrong done to the Appellants themselves I shall conclude this Learning touching Appeals with these Queries Qu. 1. Whether all Appeals ought to be sued in proper Person Resp It is answered that all Appeals are to be sued in proper Person and not by Attorney 21. E. 4.72 73. as Appeal of Maihem must be in proper Person A Woman which was Grossement euseint The Womans Lawer lib. 5. sect 2. sued this Appeal and the Defendant was attainted the Womans Appearance was recorded for the whole Terme and yet by the better opinion she might not pray Execution by her Councel but ought to come in proper person therefore one of the Judges did ride to Islington to her to see if she were alive and desired Execution which she required and the Defendant had Judgment Qu. 2. Whether an Appeal may be commenced more then one way Resp It is answered that Appeals are commenced two wayes either by Writ or by Bill 1. By Writ when a Writ is purchased out of the Chancery by one Man against another commanding him that he shall appeal a third Man of some felony or other offence by him committed and to find Pledges that he shall do this with effect and this Writ is to be delivered to the Sheriff to be recorded 2. By Bill when a Man of himself giveth his Accusation of another Man in Writing to the Sheriff or Coroner and taketh upon himself the burthen of appealing him that is named in the said Writing And note that there is a diversity worthy of observation betwixt an Appeal by Bill and by Writ for in the Appeal by Original Writ both principals and accessories Co. 2. Inst f. 183. are generally charged alike without any distinction who be principals and who be accessories but otherwise in the Appeal by Bill Thus much of the Accusation by way of Appeal I proceed now to speak of the other kind of Accusation viz. by Indictment Indictment cometh of the French word Enditer Indictment Co. Litt. f. 126. b. and signifieth in Law an Accusation found by an Enquest of 12 Men or more upon their Oaths and the Accusation in Latin is called Indictamentum And as the Appeal is ever the Suite of the Party so the Indictment is alwayes the Suite of the King and as it were his Declaration For the clearer understanding of Indictments take these following Rules That there be words so appropriated to offences criminal Reg. 1. that they cannot be Legally by any other words or Periphrasis The word Rapuit Rape in an Indictment of Rape must be used for carnaliter cognovit eam or the like will not serve Co. Lit. 124. a. Co. 2. Inst 180. Cro. 2. part Fitzwilliams Case An Indictment Murder Quod felonice ex malitia sua praecogitata occidit such a one without saying Murdravit is no Indictment for Murther although these words Tantamount Cro. 3. part Fitzwilliams Case Co. l. 4. Brookes Case 39. b. 8. E. 6. Dyer 69. a. 304. b. No Indictment can be of High treason High treason without this word proditorie Co. 3. Inst f. 15 4. In an Indictment of Maihem Maihemavit cannot be expressed by any word Maybem as mutilavit truncavit or the like Co. Litt. 126. b. The word Felonice Felony must be used in all Indictments of Felony and cannot be expressed by any other word Co. Litt. 391. a. False Latine shall not quash an Indictment if the word be sensible Reg. 2. Co. leb 5. Lowes Case It is moved in Arrest of Judgment that an Indictment was not good being fecerunt Cro. 〈◊〉 part Cholme leges Case whereas it was found only Billa vera against one sed non allocatur Because it was exhibited against two and it is but false Latine Misrecital of a Statute Reg. 3. being fatal in Indictments the sure way is to draw the Indictment with conclusion contra formam Statati and with no Recital of the Act. Co. l. 4. 48. a. Every Indictment ought to have the Addition of the Party indicted Reg. 4. and his place of Abode Cro. 2. part Reads Case and Johnsons Case 610. In all Cases of death the word percussit Reg. 5. ought to be used except in case of poysoning Co. lib. 5. Longs Case Where a Man indicted is not convicted Reg. 6. or acquitted he may be arraigned upon a new Indictment Cro. 3. part Withipools Case Where the substance of the Indictment Reg. 7. Co. Litt. f. 282. a. lib. 9. Mackaleyes Case no matter for circumstances As if A. be indicted of murder
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
the Suit and so the Master should have the loss by his falshood therefore the Master shall bring the Action and have his Servant who was robbed be his witness whereupon it was adjudged for the Plaintiff Action upon the Stat. of Hue and Cry supposing that he was robbed in such a High way in divisis Hundredorum Cro. 2. part Foster v. Inhitantes Hundredorum de Spehar f. 675. and that he gave notice thereof to the Inhabitants of the Hundred near to the Place where he was robbed After Verdict for the Plaintiff it was moved in Arrest of Judgment that this declaration is not good because he doth not shew that the High way is within any Hundred And in truth it out to be given to the Inhabitants of both Hundreds and so be divers Presidents that notice was given in the other Hundred to the Inhabitants of that hundred Sed non allocatur wherefore it was adjudged for the Plaintiff Hue and Cry made in the next Vill adjoyning though it were in another County Cro. 3. part Tutter v. Inhabitants of Daccorar is good enough for a Stranger cannot know the division of Countys Vide Cro. 3. part Merrik v. Hundred de Rapesgate 379. Action upon the Stat. Co. 2. part Andrews v. Hundred of Lewknour 187. of Winton of Hue and Cry and shews in his Count the said Statute and that such a day he was robbed of so much within that Hundred and that he made Hue and Cry and shews according to the Statute of 27. Eliz. And that within 40 days before the Action brought he was sworn before such a Justice of Peace that he was robbed of so much and did not know any of the Felons that as yet the Defendants had not taken any of the Felons nor satify'd him contra formam Stat. praedict unde Actio accrevit After Verdict for the Plaintiff it was moved that this Declaration was not good because the Action is founded upon two Statutes and both mentioned in the Declaration yet he concludes contra formam Statuti praedicti which is not good and the Court thereupon doubted and appointed Presidents to be searched and after divers Presidents of this Court and the Common Bench shewn unto them wherein some were Contra formam Stat. praedicti and some Statutorum praedictorum And the Court held that the best forme was Statuti praedicti For the Action was grounded only upon the Statute of Winton which gives penalty and remedy the other shews only how the Examination shall be and in what time before the Action brought otherwise he shall not have the Action and Statuti praedicti refers only to the Stat. of Winton which gives the Action therefore the best form to declare is Contra formam Statuti praedicti Thus much of the Satutes touching Hue and Câ—y FINIS THE TABLE A. Accessories IN what offences Accessories may be and in what not 123 The several sorts of Accessories 124 Accessories by the Common Law what 124 125 Accessories by Statute Law what 125 126 Where the Common Law or Statute Law makes a Felony Accessories are still included 126 Rules touching Accessories Id. Where an Accessory cannot be guilty of Petit-Treason when the principal of Felony Id. Where the Accessory shall not be tried if the Principal hath his Clergy or be pardoned 126 127 Writing of Letters in favour of a Felon will not make the Party an Accessory 129 Instructing a Felon to read will not make an Accessory 129 Perswading Witnesses not to appear will not make an Accessory 129 Quaeries touching Accessories 128 129. c. Affrays The derivation of the Word Affray and the diversity betwixt it and an Assault 106 The punishment of an affray 103 What persons are bound to part Affraies 103 The punishment of those that refuse to part Affraies 103 104 Affraies inquirable in Leetes 106 Appeals The Description and Derivation of an Appeal 136 Who may and who may not Appeal accuse c. 121 Where the Wife shall have an Appeal of the death of the Husband and where not 137 138 Where the Wife shall have an Appeal and yet not be endow'd and e converso Ibid. The true reason why the Wife hath an Appeal de Morte Viri 138 139 She ought to be Sole and unmarried that brings an Appeal 138 The taking of a second Husband after Judgment and before Execution hinders the Execution of the Judgment 138 An Appeal ought to be sued in proper Person 140 141 Appeals how many ways commenced 141 A Diversity betwixt an Appeal by Bill and by Writ Ib. Approver Who may and who may not be an Approver 123 His Description Ib. Where none can be an Approver upon an Appeal 122 Where a Man appealed by an Approver and thereupon kept in prison may be Bailed by good Sureties given 122 Assemblies Assemblies unlawful how dangerous in former times 110 Arraignment Arraignment of a Prisoner what 149 The manner of Arraigning of a delinquent 149 Attainder Where a Man attainted shall be liable to Arrests and Executions for debt 151 152 A Diversity betwixt an Attainder and an Entry into Religion 152 A diversity betwixt purchasing of Lands before and after an Attainder Ib. A Person attainted after a Pardon may have an Action of Battery c. done before the Pardon granted Ib. The several sorts of Attainders 153 A difference betwixt a Person attainted and convicted Ib. Where upon an Attainder of Felony in an Appeal the Defendant shall forfeit no Lands but those he had at the time of Outlawry pronounced secus in an Indictment Ib. Attainders as to Chattels shall relate but unto the Judgment pronounced 154 Battery What it is 50 Who may chastise and correct in a moderate manner Ib. Where a Man may return blows in his own defence or in the defence of another 51 Where a Man may not return or give any blows in his own defence Id. Bribery Bribery what 94 It may be committed though no Suit depending in foro contentioso 94 95 It may be committed by one that is a Judicial Officer in the Ecclesiastical Court 95 Difference betwixt it and Extortion 97 Burglary The Etymology and definition of it 64 65 What shall be said an entry into breaking of an House to make it Burglary Ib. Where it shall be Burglary though but one doth enter Ib. Where a Man may commit Burglary though he breaketh not the House 65 66 What shall be said a Mansion House the breaking whereof makes it Burglary 66 67 A Chamber of Innes of Court or Chancery is a Mansion House 67 To break an House to the intent to beat another not Burglary 68 House breaking 68 69 70 Burning of Houses It s Description 72 What shall be said Burning of Houses to make make it Felony 73 Where the Burning of an House without an intent to do it shall be Felony and wheren ot Ib. The Burning of a Man 's own Houses is no Felony 73 74 Causes Criminal Why Causes Criminal are called
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.