le case and Trespasse Bro. Tresp F. N. B. fo 85. and 92. Fulb. fo 69. Plow second part 12. 13. Dier fo 36. n. 38. f. 208. n. 14. fo 285. n. 40. 2 He also is liable to this action who damnifies or hurts another by accident though it be not through any fault and deceâ—t o Bract. l. 3. tr 1. c. 36. Flet. l. 4. c. 17. Of Trespasses and Injuries TIT. IV. WEE have declared how that under this generall notion of trespass we comprehend every breach of the Law but we shall treat here especially of that which redounds to the disparagement and contumely of the person iniured as when one strikes beates wounds or maines another a Bract. l. 3. c. 19. â— 1. Flet. l. 2. c. 1. or where without any force he asperceth the credit and reputation of another by approbrious words b Id. ib. tr 2. c. 24. n. 3. Flet. l. 4. c. 40 41. Dier fo 105. n. 15. or by dispersing libells or falsly imprisoning him c Dier fo 72. n. 6. fo 75. n. 21. fo 118 n. 77. fo 236. n. 26. or ill intreating him in any such like sort d Bract. l. 3. c 19. 1. They seem also to be guilty of this trespasse who plot and imagine uniustly against the lives or fortunes of others whom our Lawyers call Conspirators e Dier fo 85. n. 87. fo 244. n. 61. F. N. B 114 G. 115. A. L. 116. M. N. 2. Nor are we only capable of being iniured in our selves but also in the persons of those who are under our power as of wives f Bro. Tresp 43. Fulb. 79. Children g Id. 90. and Servants h Id. 80. and Bo. Enter Trespasse in Servant and Villaines i Bro. Villenage 24. Trespass 53. Villenage 24. 3. A Trespasse may be either greater or lesser according to the circumstances now the circumstances we account seven viz. the cause which moves the Actor the Person as well of him that commits as of him who sufers the iniury the Place Time Quality Quantity and event And these are materiall either as to the aggravating or diminishing the punishment k Brac l 3 tr 1 c 6 Flet l 1 c 16 and l 2 c 1 4. We call a contumely or slanderous and iniurious words spoken against any nobâ—â— man Scandalum magnatum which deserves 〈◊〉 greater punishment then any other in regard of the Honour and Dignity of the person iniured l 3 E 1 c 33 1 R 2 c 5 and 12 R 2 c 11 unlesse it can be any way iustly excused m Dier fo 285 n 37 but it is much doubted whether slanders spoken against a Prince may be referred hither or not n Id 155 n 19 5 This Action as all other Actions of trespasse lies against him through whose fault and by whose will the Iniury was done o Brac. l. 3. tr 1 c. 6. and is given for the repairing the damages of the party iniured as himself esteemes them and the Jury who in this case are Judges shall give p Id. ib. 6. Nor will words which are too generall q Coo. l. 4. Sâ—anhops case fo 15 n 4 or which have a dubious Interpretation r Id. ib Hext c. or false accusations before a competent s Id. ib Bucklers case n 3. Judge give colour to this Action besides that it may be defended by Justification t Flet. l. 4. c. 17 and adnulled by the dissimulation or tergiverfation of the party iniured u Brac. l. 4. tr 1. c 28 Of Obligations which arise from imputed Crimes TIT. V. A Judge with us according to some makes the suit his own by mis-judging a Brac l 5 tr 5 c 15. but at this day the party who is prejudiced and wronged by a Judgement rather removes his cause to another Court either by a Writ of Errour if the Court were a Court of Record or otherwise by a Writ of false Judgement and requires amendment and correction of the former sentance b 27 Eliz. c 8 1. Yet are there Obligations with us also from imputed crimes as in case an under-Sheriff give false information to the Kings Court or make default in Executing the commands of the Justices the Sheriff himself shall undergo the penalty and not he c Dr Stu l 2 c 24 so also if the Kings Cup-bearer do substitute others in his Office he shall be obliged for their defaults d 25 E 3 Stat 2 c 21 which holds true not only in the Exchequer e 14 E 3 Stat 1 c 9 Dier 161 n 45 and 238 n 38 but in other Courts likewise where the Officers Deputies do not performe their duties f Cromâ— Juris 111 as also in Escheators who substitute another whose Act they refuse to be obliged by g 12 E 4 c 9 Coo. l 4 Mittan case fo 33 2. In the like manner are Hundreds of Counties obliged to the compensation of what is lost by Roberies committed within them unlesse they apprehend the Theife b And the Neighbouring Villiages to any place whose Trenches and Hedges are illegally throwne downe by persons unknown i Id c. 45. 3. So if a Servant by negligence burn his masters House and the neighbouring House to it the Master is obliged in like manner is the Master of a common Inn if his Servant k Plowd â—o 9. or any one else within his Inn l Dyer fo 158. n. 32. fo 266. n. 9. take Monies from any Guest within the Inn and the Keeper of a Prison if any of his Servants suffer a Prisoner to escape m Dr. Stu. l. 2. c. 24. but of this you shall finde many other kindes in our learned Writers n Fulb. Para v. Contracts fo 3. and 4 Of Actions TIT. VI. AN Action and a Writ are often times used promiâ—cuously for a Writ wherein a party is summoned containeth a breise and short narration of the Fact which produâ—â—th an Action But those Lawyers of ours who professe the Explication of Writs asfirm them to be of a far larger extent then Actions a The Author of the Register F. N. B. Bract. 1. 5. tr 5. c. 17. for that they contain many extrajudiciall commands of the supream power in those businesses which concern either it's self b F. N. B. 232. 251. 147. the Common-Wealth c Id. 170. 169. 164. or private persons d Id. 79. 164. but the cheife part of them are in cases of Judgment Of which some constitute Judges e Id. 110. some require those who are already constituted to administer Judgment to those who demand f Id. 153. 240. some free men for a certain time from Judgments for some speciall cause g Id. 28. some force those who are unwilling to give security to bear Judgment h Id. 85. some permit those who are in Suit to substitute others to prosecute for them
19. 193. and those also which are of the same nature q Id. 157. Plow 357 358 11. We may sue for a possession or for that which is of the same nature whether they be lost by force or detained being committed voluntarily to another against Right in which the former Cases we may be relieved by â—â—its which we call Assises r F. n. b. 177. 179 181 183. 134. 88. 190. 191. and those which are of the like nature s 13. Ed. 1. c. 25. Brac. l. 4. 12. And for the recovery of a possession which being voluntarily delivered to another is uniustly detained There are writs of Entry of divers kinds and others like them t F. n. b. 201. 205. 206. Brac. l. 4. tr 7. 13. Preiudiciall Actions also are reckoned â—mong reall now those are termed preiudiciall which arise from incident and emergent questions in which it is inquired whether one be born free or not if not then whether he be actually free or a Servant a Son or not a Son and if a Son then whether legitimate or Bastard c u Brac. l. 3. tr 1. c. 4. n. 9. Brit. c. 108. and they are called preiudiciall because they are iudged and determined before the principall Action w Id. ib. 14. Actions which are mixt being as well against the thing as the person and so called because they have a mixt cause relating to both as the dividing an Inheritance between Co-heirs the setting of Bounds amongst Neighbours for if we respect the persons they are both complainants and respondents although he is not properly said to be complainant who cites the other to come to Judgement The Writs which are proper in these Cases are these de Partitione x F n b. 61. de rationabilibus divisis y Id. 121. de perambulatione facienda z Id. 133. de Curia claudenda a Id. 127. de reparatione facienda b Id. ib. 15. Furthermore there are Actions which are given either solely as penall c Brac. l. 3. tr 1. c. 4. n. 5. or as beneficiall to both which some call Civill criminall or mixt d Glan l. 1. c. 1. Brac. l. 5. tr 5. c. 31. Littl. c. Releases 16. Those which relate meerly to a particular thing are all those which grow from Contracts or of the same nature and claim nothing for wrongfull detaining or nomine penae as a punishment of the Crime e F. n. b. fo 1. and those are penall which are ordained for the preventing of misdemeanours of which sort are those popular Actions which are given to Informers for the benefit of the Exchequer and themselves against the breakers of Statutes f Id. 171. and those relate both to the thing and person which regard the thing as the principall cause and the person as to personall performance g Brac. l. 3. tr 1. c. 4. n. 5. of this sort is a writ of Assise which claims the thing as to restitution and yet is against the disseisor as to Dammages for the iniury h Id. l. 4. tr 1 c. 6. n. 3. 20 H. 3. c. 4. and a writ of waste which requires the thing wasted and trebble dammages i 6 Ed. 1. c. 5. 17. There is also a third division of Actions for that some give barely the dammages k Brac. l. 3. tr 1. c. 4. n. 6. sustained some double some trebble and some ten-fold k Brac. l. 3. tr 1. c. 4. n 6. Those which give barely â—he Damages sustained are all Actions of Trespasse l New book of Entries Trespasse Those which give double damages as against such as make an assault against those who are called to the high Court of Parliament m 11. H. 6. c. 11. and against him who prosecutes any Action in the Court of Admiâ—alty which is not within the jurisdiction of â—he Court And lastly against those who â—et too high a rate upon Victuals n 2. H. 4. c. 11. Treble damages are against those who unjustly exâ—ct money for the probate of Wills and Teâ—â—aments o 23. Ed. 3. c. 6. Or who cause Ryots p 3. 4. E. 6. c. 5. And â—en-fold the damages are recoverable against 〈◊〉 Juror who receives a Bribe for bringing in 〈◊〉 Verdict q Ib. 1. Mar. Parl a. 1. c. 2. 18. Besides wee have not unaptly said some Actions to be bona fidei and some of â—rict Right for though no such distinction 〈◊〉 expresly found amongst our Lawyers yet 〈◊〉 finde them frequent in practice For the Damages which we receive from Contracts or Trespasses are left and remitted to the eâ—â—â—ty of the Jurors what and how much it 〈◊〉 and Judgment is given according to their estimation Where on the contrary in Actions which have reference principally to the thing unles the complainant prove the thing 〈◊〉 Action to be due and to be his the Action falls because neither the Jurors nor the 〈◊〉 have any other power in these then to condemn the Defendant as to the thing in Action or to free him Whence it happens that one and the same thing often occasions a double Action viz. a principall Action for the thing which is of strict Right and another which is accessory for the recovery of Damages which is bona fidei 19. In the distinction of arbitrary Actions from Actions bona fidei The Civiliaâ—â— doe not very punctually agree Nor do wee find any other of them in use amongst us in England more then these we have observed Only this we may adde That the Chancellour of England or the Keeper of the Great Seale whose Authority is almost the same to whose Conscience and Equity every one who is without remedy in the Law may appeale from other Courts before Judgement given is not bound or prescribed by any Lawes but that hee may decide and compose all causes which are for this purpose brought before him according to the Judgement and Conscience of a Good man and imprison him who is contumacious and refractory to his Decrees and detain him there untill he becomes conformable r Plowd 532. 20. We have no use with us of that which was called Actio de Peculio in regard we are not obliged by their Contracts who are under our power unlesse so farre as they be in order to our Commands s Dr. Stu. l. 2. c. 42. What is said to be a Contract made by him who is under the power of another TIT. VII THose Contracts which are made by our Servants by our command are binding â—o us a V. n. b. 62. F. n. b. 120. G. For if I make one of my Servants â—y Bailiffe and give him a power of taking Oren or other Cattel to graze in my pasture 〈◊〉 a certain price I cannot have an Action 〈◊〉 Trespasse or de conculcatione herbarum against him who shall upon such a Contract â—urn his Cattel into my
after the Fact is where any one wittingly or ignorantly q Dier fo 355 n. 36. receives cherisheth assisteth and comforteth a Felon r Stanf. l. 1. c. 46. or who receives stoln goods to keep them or to dispose of them together with the Theife s Fulb. par Theft fo 202. Lamb. fo 295. But a Wife who in this case conceales the secret of her Hushand is exculable through the necessity of her Duty t Stanf. l. 1. c. 46. which is also true in case shee commit the Fact upon his command u Id. ib. c. 19. And there are also Accessories of Accessories as where any one doth wittingly receive the Accessory of an Accessory w Id. ib. 33. The punishment due to Felons both principalls as Accessories is to hang by the neck untill they dye and to forfeit their Goods and Lands if they have any x 24 H. 8. c. 45 Coo. l. 4. Beverleys case 124. Only here is the difference That the Accessory cannot be punished before the Principall be convict and Attaint y Stanf. l. 1. c. 43. Plow 97. Dyeâ— fol. 120. n. 10. Now the Lands escheat to the Lord of the Mannor who notwithstanding was formerly compelled to expect untill the King had received his yeare and his day and waste unlesse the King himselfe â—ere Lord. z Stanf. l. 3. c. 3. Flet. l. 1. c. 28. Moreover the Issue of Felons is so infected that they are excluded from all hope or possibility of succeeding in the Inheritances of their Ancestors which otherwise should have descended to them unlesse there be any thing more favourably enacted in case of any particular crime contrary to the common and ordinary forme a 1 Mar. c. 14 1 Jam. c. 11 12. 34. But these things which wee have spoken concerning the punishments of Treasons and Felonies must have their distinctions therefore it were requisite to explain them Now the way of impeaching any of these crimes is double one by Appeal b Stanf. l. 2. c. 52 53 54 55 56 57 58 59. the other by Indictment at the suite of the Supream Power c Id. c. 59. If they proceed by way of Appeale and that it be an Accuser who takes upon him the proofe of the crime it is at the election of the Defendant unlesse hee will confesse the fact to wage his Battaile with the Appellor or to be tryed by his Country Or in case he were a Peer of the Realm to be tryed by a Verdict of his Peers or Pares d Id. l. 3. c. 1. Flet. 1. c. 21. 31 32. But if he be indicted he is left solely to the tryall of his Country or Peers And if in either case he be convict he is punished with Death 35. But it sometimes happens that the party accused through contumacy refuseth to be tryed either way but either stands mute or pleads not so As by his answer Issue may be joyned to come to Tryall In which cases if it be by Appeale he is immediately adjudged to dye e Dyer 441. n. 49. If by Indictment then is it taken Pro Confesso in case of Treason And in cases of Felony he shall be impressed viz he shall be committed to the Prison from whence hee was brought where he shall be carryed into some low dark place and being stripped naked he shall be laid upon the bare ground his Pudâ—ndâ—e only covered and his Arms and Legs pulled out by four ropes fastned to the four corners of the room hee shall be stretched out upon his back Then being bound in this manner hee shall have so great a weight of Iron or Stone laid upon his Breast as hee is able to beare without confusion The day following he shall have 3. crusts of barly bread without drink next day to that he shall have three draughts of the water next to the Prison povided it be not running water but without Bread And so by turns he shall be fed with bread or water every day untill hee dye through the extremities of weight hunger and cold f Flet. l. 1. c. 32. Stanf. l. 2. c. 60. Dyer 241. n. 49. 36. Now a Woman who is condemned for any the aforesaid Crimes if she be with Child hath the Execution of Judgment deferr'd untill shee be delivered of her Infant g Flet. l. 1. c. 38. 37. There is also a misprision of Felony As in case any one knowes another to have committed Felony and doth not discover it unto the Supream Power or to a Magistrate h Termes of the Law v. misprision Cromp. fol. 39. Now the punishment for this crime is That the party shall be committed to prison untill hee have put in Security for the payment of such a Fine as the Judges shall impose upon him before whom he is convened i Id. ib. And it is to be observed That in all Treasons and Felonies there is a misprision of Treason or Felony comprehended And therefore it is in the power of the Supreame Power if in its clemency it thinks good so to doe to suppose him guilty of misprision only who really is guilty of a greater crime k Id. ib. 38. Next to these which are capitall are those crimes which used to be punished with perpetuall Exile and Banishment As those persons who having committed Treason or Felony and taken Sanctuary were accustomed having confest their crime before the Coroner to abjure the Realm and thereby avoid a greater punishment l Stanf. l. 2. c. 38 39. Terms of the Law v. Abiuration but this is long since altered m 21 H. 8. c. 2. 22 H. 8. cap. 14. 33 H. c. 12. And indeed there are few Facts at this day subject to this and many even of those are not so high as he who kills Deere and cannot finde security to put in for the payment of the Fine imposed is compelled to abjure the Common-wealth n Charta de Forest c. 10. Dier fol. 238. n. 34. which also hee is bound to doe who marries a Woman-Heir having stollen her out of the custody of her Guardian and is not able to satisfie for the value of her Marriage o 13 E. 1 c. 45. So also hee who accepts of a Benefice being elected by the Pope p 13. R. 2. Stat. 2. c. 2. And lastly a Papist who refuseth to come to Church according to Act of Parliament q 35 Eliz. c. 1. 39. Our Statutes also inflict a great penalty upon those who sue or implead any one in a Forreign Realm when the Action belongs properly to the Cognisance of our Courts or where Judgement hath in the same case been given by the Justices here As likewise upon those who by prosecuting a Plaint in another Court endeavour to retard or impeach Judgment given in the Supream Courts of our Supream Power For such Offenders being summoned by distresse either upon the Lands in question or upon any other of
i Id. 156. some prohibite and keep within compasse those Judges who stretch their Jurisdictions too farr k Id. 39. some remove causes from one place to another l Id. 70. 69. Lastly some informe and commence processe m Regist Origin and others prosecute and bring to an end those which are begun n Reg. Judiciale now those which begin processe are called originall Writs and those which promote and end processe begun iudiciall o Regist Brev. 1. All Actions flow either from the common Law or from Statutes p Bro. Action populer Sur le Statut. but from which soever they flow they are all either against the person or the Estate or both q Brac. l. 2. c. 3. n. 234. 2. Personall Actions are those which arise against any one from a Contract reall or imputed or from a crime reall and proper or imputed Now those Writs which are Issued forth in either case upon Contracts are for the most part these A Writ of Covenant r F. N. B. fo 145. of Account s Id. 116. of Debt t Id. 119. of Detinue u Id. 138. of Trespasse w Id. 92. upon the case in which the assumption is contained x Bro. Acton Sur le case 24. 3. Those which are issued out in either case as touching Crimes are those of Trespasse y F. N. B. 85. Deceit z Id. 95. breaking of a Park a Id. 100. or Inclosure Rescous b Id. 105. Attaint c Id. 105. Conspiracy d Id. 114. Champerty e Id. 171. 4. Reall Actions are those who are maintainable against any one not obliged to us by any Right because our estate corporall or incorporall which is immoveable is possest by him or as it were in his possession which he may either restore or name the party in whose name he possesseth it as if one demands of any one a thing certain viz. a Fee Lands an Advowson pretending ones self owner of it and sues not for the value or so much in the same kind but the same specificall thing and for this that the demandant supposeth the thing his and brings his Action against the Tenant who denies it the Action or Plea shall be against the thing it self f Brac. l. 3. tr 1. c. 3. n. 3. 5. If the thing sued for be a moveabe as an Ox an Asse a Garment or something consisting either in weight or measure although the Action or Plea at first seems to be as well against the thing as the person because a certain thing is sued for and for that he who possesseth it is bound to restitution yet in truth the Action is against the person because the party sued is not precisely bound to restore the specificall thing but under a disiunction either the thing or its value and he is freed by paying the value onely whether the thing be to be had or not and therefore if any one claim a thing moveable taken away upon any occasion or lent he ought in his Action to ascertain a value otherwise it is of no force nor signifieth any thing g Brac. l. 3. tr 1. c. 4. n. 4. Fleta l. 2. c. 60. 6. Now of Actions civill and for a particular thing as the claim of a particular thing some are confessory and some negative confessory as where one affirms a corporall or incorporall thing to be his as a Fee also where he affirms himself to have a Right of going through his neighbours Fee or of drawing water even whether his neighbour will or not and it is therefore stiled an Action for a particular thing because he requires his particular incorporall thing viz. his Right of a way through a Fee and confessory because it is by words of affirmation But an Action negative is that which the Lord or owner of a Fee brings against one who is accustomed to have a way through his Fee denying that he hath any such Right and this Action is said to be for a particular thing Because by it the Lord of the Fee doth by it claim his Liberty and these kind of Actions are not for the Dominion or property of a thing but onely touching the Right of Estates h Brac. ib. n. 7. Flet. l. 5. c. 37. 38 39 40. 7. We have also something paralel to that which was anciently called Actio Rescissorla for if any one be dispossest of his Estate being in durance and the Lands descend to the Heir of the Disseisor the Disseisee hath liberty to recover his possession by his own proper Act or as we term it to re-enter and if Judgement be given against him he may reverse it afterwards by a Writ of Error because his absence was not through contempt but by reason of Durance and imprisonment and therefore it seems contrary to reason that he should be prejudiced by any such Record and there is the same law for those who are in the Kings service or who are beyond the Seas in any businesse which concerns the Common wealth and are in the mean time disscised being unable to make their continuall claim nay there are some who affirm that he who is beyond Seas about i Litt. l. 3 c. continuall claim his own businesse if he be disseised may upon his return upon his own authority reenter upon the Heir of the Disseisor without bringing his Assise k id ibid. 8. And there is somthing likewise which answers to that same Actio Pauliana and which is afforded by a particular act of Parliament l 13 Eliz. c. 5. which renders all manner of alienations of Lands and Goods made by the Debtor to defraud the Creditor void and of none effect and moreover inflicts a penalty upon all those who are guilty of it and who defend it as lawfull 9. Nor do we want that which equalls the ancient Actio Serviana for the Lestor may of proper Right distrain upon goods which are brought upon his Fee and detain them untill his Rent be satisfied because we also do tacitely esteem these in the nature of Gages or Pledges although this be not without Distinction m Bro. Distresse 13. 57. 99. To this also may be added that Actio hypâ—thecaria quasi Serviana for if any one receive monies borrowed of another under a Pledge or Pawn and cannot afterwards receive his pawn upon tender of the monies the Creditor refusing to redeliver it the Debtor may in this Case have his Action n F. n. b. 86. G. and he is said to sue upon an Action quasi Serviana who being seised of Lands as by way Mortgage is disseised or elected out of them 10. Now writs which are proper to reall Actions are either to recover a property or a possession o Flet. l. 6. c. 1. those which appertain to a property are writs of Right which are of divers kinds p F. n. b. 1. 6. 11.
their Lands to be made by the Sheriffe to appeare personally in the Chancery or in either Bench or before Justices particularly for that purpose deputed to answer such contempt if they appeare not Then are they their Procurators Attorneys Executors Notaries and Summoners deprived of protection their Lands Goods and Chattels forfeited to the Supream Power and their Bodies wheresoever found and taken kept in Prison untill they have paid a Fine to be imposed upon them at the will and pleasure of the Supreame Power r 27 E. 3. c. 1. Bro. tit Praemanire 10. 40. Those also are lyable to this who seeke for any presentations to Churches Prebendaries or other Ecclesiasticall Benefices from Rome Or who seeke and obtaine any Processe concerning the premises any Excommucations Bulls or other Instruments from thence Nor they only but their Procurers Executors Notaries Summoners Promoters and Assisters s 13 R. 2. c. 2. So also those who procure any Provisions from the Pope by which they become absolved from their Obedience or obtaine any Office in any Religious House c. t 2 H. 4. c. 3. As Arch-bishops Bishops Abbors who paid a greater summe then usuall to the Pope for their Benefices u 6 H. 4. c. 1. together with those Rectors and Vicars under the Jurisdiction of the Arch-Deacon of Richmond who impose too great exactions upon the Subject w 26 H. 8. 41. To which wee may adde those who defend or promote any Authority or Jurisdiction of the Pope which hee shall claime in ENGLAND either by word writing or Act Or those who shall assist help or comfort any manner of way any person or persons who shall defend or promote the same x 5 Eliz. c. 1. 28 H. 8. c. 10. 1 Eliz. c. 1. Those who entertaine or assist any who shall bring any Bulls Writings or Instruments of Absolution or Reconciliation from the Sea of ROME or from any person exercising the Authority of the said Sea Or who shall under such colour absolve or reconcile any person or who shall accept of any such Absolution Lastly those who shall bring over from the Pope or See of ROME or from any one claiming his Authority any Agnus Dei Crosses Pictures Beads c. and shall deliver them to any Subject here or procure them to be delivered or offered to the end that they should make use of them And those also who shall receive any such thing being offered and not apprehend the person offering them or not deliver him to the Ordinary or some Justice of Peace within three days together with the thing so received y 13 Eliz. c. 2. 42. They also come under the same notion who being compellable refuse the Oath of Supremacy being lawfully tendered z 1 Eliz. c. 1. 5 Eliz. c. 1. Or who doe directly or indirectly give any money or sustenance or any other thing to any Jusuite or Priest remaining in any Seminary or to any other Priest Deacon Religious or Ecclesiasticall person or to the maintenance of any of their Seminaries or Colledges beyond the Seas a 27 Eliz. c. 2. 43. And lastly Those who take or procure for Usurers by way of Usury though under the notion of any Sale or Contract above a tenth per annum b 19 Eliz. c. 8. But some of our Lawyers through gaine or ambition have too violently extended this strict punishment by stretching the words of one Statute c 16 R. 2. c. 5. which are meant in the generality to every light offence of Judges especially Ecclesiasticall d Cromp. fo 52 to whom I shall only say That that Candor of some were to be desired and that Ignorance of others lamented which a very learned Man did lately most accurately perswade and refute e Cosmus part 3. c. 7 fol. 85. 44. Those Crimes which are punished with the losse of Protection are not to bee esteemed light Now they incur this who being five times lawfully summoned in a full County doe not give their appearance to a personall Action or an Indictment f 13 E. 1. c. 35 31 Eliz. cap. 3. for they are pronounced Utlawed And if it be a civill Action they forfeit all their Goods and Chattels with the profits naturally arising from their Lands g Bro. forfeitures 30. And if it be criminall then they forfeit all their Lands and Tenements also to the publique Exchequer for ever h Terms of the Law v. Utlawry and are ipso facto deprived of the benefit of all Lawes and of the priviledges of Subiects so that according to the Ancients any one might kill them unpunished i Brac. l. 3. tr 2. c. 11. But this Law being altered k 5 Eliz. c. 1. they are now referred to a pecuniary Fine Those also are liable to this punishment who remove or throw down the Sea-marks by which Marriners are secured from wandring and directed to their Port if the Offenders be not worth a hundred pound whereby they may with moneyes satisfie for their oftence l 8 Eliz. c. 13. 45. Periury committed by any person who was of a Jury in any Court was so odious to our Ancestors that it was decreed that all such Offenders should have their Medowes and Gardens digged up their Houses pull'd downe their Woods extirpated and grub'd up and all their Lands confiscate m Termes v. Altaint And moreover according to some they were io be committed to Prison and for ever rendered so infamous that they were deprived of the benefit of the Lawes and their Testimonies never to be admitted in any Cause n Fleta 46. Those who committed periury in any Court were fined twenty pound and suffered sixe moneths imprisonment without Baile or Maine prize and made incapable for ever after of bearing Witness in any Court of Record And if any person did procure or suborn another to commit periury in any Court hee is to be fined forty pound And if hee have not so much in Goods and Chattells he is then to suffer six months imprisonment without Bale and to stand in the Pillory in the same Towne or in some other in open Market for the space of an houre and furthermore is made uncapable for ever of bearing Witnesse in any Court of Record o 5 Eliz. c. 9 But periury was wont frequently to be punished with en extraordinary Censure in that Honourable Assembly of Peeres in the Starr-Chamber p Dyer fol. 242. n. 53. 47. Next to this are those Crimes which were punished with dis-membring or Mutilation of the Body As the cutting off the hand q 33 H. 8. 6. 12. of him who presumed to strike another within the Verge of the Court of the Supreame Power The losse of his Eare who maliciously struck another with a Weapon in a Church or Church-yard or who presumed to draw a Weapon for that end r 5 E. 6. c. 4. And if the person so offending happened