house and within the said act of 39. Eliz. they prayed the discretion of the Court And it was resolved upon this special verdict being removed by Certiorari into the Kings Bench and the prisoner removed by Habeas corpus that this breaking open the chamber and taking 40. pounds out thereof nulla persona being therein although there were divers persons in other parts of the house was within the Stat. of 39. Eliz. which takes away Clergy from such offenders Wherefore Clergy was denyed to the said Evans and Judgment given in the Kings Bench that he should be hanged Thus much of Burglary and likewise of House-breaking 4. Pyracy The word Pyrat Co. Lit. 391. a. 3. Instit f. 113. in Latine Pirata is derived from the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which again is fetcht from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a transoundo mare of roveing upon the Sea and therefore in English a Pyrate is called a Rover and a robber upon the Sea Having shewed the Etymology I propound these Questions with their resolutions touching Piracy Whether Piracy were anciently treason Qu. 1 Before the Statute of 25. E. 3. c. 2. Resp De proditionibus if a Subject had committed Piracy upon another this was holden to be Petit treason 40. Ass pl. 25. for which he was to be drawn and hanged because Pirata est hostis humani generis and it was contra Ligeantiae suae dehitum but since the aforesaid Satute this is no treason in the case of a Subject Whether Piracy can alter property Qu 2 Piracy does not change property no more then theft at Land Hobart's Reports f. 78. Resp When goods are tortiously taken upon the Sea by Piracy Cro. 1. part Anonymus f. 685. it gaineth not any property in them against the owner and being sold on the Land unless it were in Market overt doth not alter the property The Civil Law speakes thus A Piratis aut latrenibus capti D. 49.15.19.2 liberi permanent Qui a latronibus captus est D. 49.15.24 servus latronum non est nec post liminium illi necessarium est Piratae quae capiunt non mutant dominium Grotius l. 3. c. 9. n. 16. De jure belli Whether Attainder for Piracy doth work corruption of blood or forfeiture of Lands Qu. 3 Resp If Piracy be tryed before the Lord Admiral in the Court of the Admiralty according to the Civil Law and the delinquents there attainted yet shall it work no corruption of blood nor forfeiture of his Lands otherwise it is if he be attainted before Commanders by force of the Statute of 28. H. 8. c. 15. Whether a Pardon of all felonies shall extended to Piracy Qu. 4 About the end of the Reign of Queen Elizabeth Resp certain English Pirates that had robbed on the Sea Merchants of Venice in amity with the Queen Co. Lit. 39. a. being not known obtained a Coronation Pardon whereby amongst other things the King pardoned them all felonies It was resolved by all the Judges of England upon conference and advisement that this did not pardon the Piracy Hill 2 Jac. Regis for seeing it was no felony whereof the Common Law took Conusance and the Stat. of 28. H. 8. did not alter the offence but ordained a Tryal and inflicted punishment therefore it ought to be pardoned especially or by words which tantamount and not by the general name of felony and according to this Resolution the delinquents were attainted and executed Thus much of Piracy 5. Burning of Houses Burning is a felony at the Common Law committed by any that maliciously and voluntarily in the night or day Co. 3. Inst f. 66. burneth the house of another Out of which we may observe two circumstances First To make it felony it must be done with malice and will for if it be done by mischance or negligence it is no felony But whether the Law doth sometime imply that the house was burnt maliciously and voluntarily may be a Quaere It is answered it does As if one intend to burn the house of A. only and not the house of B. and yet in the burning the the house of A. the house of B. is burnt in this case the burning of the house of A is felony Co 3. Inst f. 67. Plowd Com. f. 475. because it proceeded of the malicious and voluntary burning of the house of A and the event shall be coupled to the cause which was voluntarily and malicious And the rule is Involuntarium ex voluntario ortum habens moraliter pro voluntario habetur Secondly to make it felony it must be the house of another and not his own house As for example One W. Holmes was indicted in London for that he being possessed of an house in London in Throgmorton street Cro. 3. part Holmes's Case f. 377. in such a ward for six years the remainder to Is for three years the Reversion to the Corporation of Haberdashers in fee. He vi armis felouice voluntarie malitiose igne combussit c. his own house Upon this being arraigned at New-Gate he was found guilty add before Judgment this Indictment was removed by Certiorari into the Kings Bench and being argued by Grimston that it was not felony By Richardson Jones and Berkcley it was held that it was not felony to burn an house whereof he is in possession by vertue of a Lease for years For they said that burning of houses is not felony unless that they were aedes alienae And therefore Britton and Bracton mention that is felony to burn the house of another and the Year-Books and Co. lib. 11. Powlters Case which say that burning of houses generally are to be intended de aedibus alienis de non propriis And although the Indictment be ea intentione ad comburendum felonice c. yet intent only without fact is not felony Also Barkeley and Jones held that it cannot be said vi armis when it is in his possession and therefore it was resolved that it was not felony wherefore he was discharged thereof But because it was an exorbitant offence and found they ordered that he should be fined 500. pounds to the King and imprisoned during the Kings pleasure and should stand upon the Pillory with a paper upon his head signifying the offence at Westminster and at Cheap-side upon the Market day and where he committed the offence and should be bound with good sureties to his good behaviour during life Note 22 23. Car. 2. nunc Regis there is a late Act made to prevent the malicious burning of houses Stackes of Corn and Hay and killing and maiming of Cattel Touching burning the Civil Law speaks thus Qui aedes acervumque frumenti juxta domum D. 47.9.9 positum combusserit vinctus verberatus igni necari jubetur si modo sciens prudensque id commiserit Si vero casu id est negligentia aut noxiam sarcire jubetur aut
us that he could never read it restrained by the Common Law to any certain number but left to the discretion of the Judges In the Civil Law thus Decem homines populum tres Collegium Bartolus duo Congregationem quindecim turbam constituunt in Jure Civili sed Jure in Communi Angliae tres turbam faciunt 9. Affraies Single Combats and Challenges c. Single Combats 1. Single combat or Duels between any of the Kings Subjects of their own heads and for private malice or displeasure is prohibited by the Laws of this Realm for in setled State governed by Law no Man for any injury whatsoever ought to use private revenge because it belongeth to the King who is the Supream Magistrate and Gods Lieutenant on Earth And the Law herein is grounded upon the Law of God Deut. 32.35 〈◊〉 12.19 It is also against the Law of naâ—â—â—â— and Nations for a Man to be Judge in 〈◊〉 own proper Cause especially in Duels where fury wrath malice and revenge are the rulâ— of the Judgment Hinc est sayes one quâ—d Legum reperta est sa ra reverentia ut nihil manu nihil proprio ageretur impulsu Quid enim a bellica confusione pax tranquilla distat si per vim litigia terminantur But it may be objected Object that it is lawful vim vi repellere therefore private revenge is lawful The reason of the consequence is because by revenge force by force is repelled It is answered Resp That the antecedent is not simply and universally true Vim vi repellere licet cum moderamine inculpatae tutelae in casu ultimae indeclinabilis necessitatis non semper quocumque modo Note that Duels are lawful if they are warranted by publick Authority such as heretofore our Tryals by batail ad probandam veritatem litis and such was the Duell betwixt David Goliah which was strucken by publick warrant and authority Vid. more of this in Grotius lib. 2. c. 1. nu 15. cap. 23. nu 10. Note further that albeit upon the Single Combat that proceeds not from publick authority no death ensue nor blood drawn Affray yet the very Combat for revenge is an Affray and a great breach of the Kings Peace an Affright and terrour to the Kings Subjects and is to be punished by fine and Imprisonment and to find sureties for their behaviour When any Affray is made by Single Combat any stander by that is no Officer Co. 3. Inst f. 178. may endeavour to part them and prevent further danger and the Law doth encourage them thereunto for if they receive any harme by the Affrayours they shall have their remedy by Law against them and if the Affrayours receive any hurt by the endeavouring only to part them the standers by may justify the same and the Affrayours have no remedy by Law 8. E. 2. Cor. 295.22 Ass Pl. 56. But if either of the Parties be slain or wounded or so striken as he falls down for dead in that case the standers by ought to apprehend the Party so slaving c. or to endeavour the same by the Hue and Cry or else for his escape they shall be fined and Imprisoned But if the Sheriff Justice of Peace Constable or other Conservatour of the Peace do not part the Affrayours for the preservation of the Kings Peace and apprehend them being within his view or do not his uttermost to part and apprehend them they may be imprisoned for their neglect thereof for they may command others to assist them and therefore the rule holdeth in them qui non prohibet 3. H. 7.10.6 Bedingseilds case cum prohibere possit in culpa est And if any be commanded to assist them therein and refuse or neglect the same it is a contempt in them to be punished by fine and Imprisonment The words Affray and Assault be indifferently used of most Men and that also in some of our Book Cases but yet according to Lambards opinion there wanteth not a just difference between them For Affray is derived of the French Effrayer which signifieth to terrify or bring fear which the Law understandeth to be a common wrong and therefore is it enquirable in the Turn of the Sheriff or in a Leete 4. H. 6.10 and 8. E. 4.5 otherwise it is of an Assault as it seemeth by those very Books yet may an Affray be without word or blow given as if a Man shall shew himself furnished with armes or weapon which is not usually worn and born it will strike a fear into others that be not armed as he is But an Assault as it is fetched from another fountain namely from the Latine Assultus which denoteth a leaping or flying upon a Man so can it not be performed without the offer of some hurtful blow or at the least of some fearful speech And therefore to strike at a Man although he were neither hurt or hit with the blow was adjudged an Assault 22. Ass Pl. 60. For this Assault doth always necessarily imply a hitting and therefore in Trespass of Assault and Battery a Man may be found guilty of the Assault and yet be excused of the Battery 40. E. 3.40 45. E. 3.24 3. Challenges Co. 3. Inst f. 158. v. Hobarts Reports Barrow v. Llewillen f. 62. Hickes case 215. If any Subject by word Message or Writing challenge another to fight with him this is an offence before any combat be performed and punishable by Law and it is contra Pacem Coronam Dignitatem Regis For prohibetur cum aliquid prohibentur etiam media ad illud tendentia The means of such evills as well as the end are to be prevented 10. Libells A Libel signifieth a criminous report of any Man cast abroad be he Magistrate or a private Person or otherwise unlawfully published in writing and therefore for distinction sake it is called an Infamous Libel or Pasquil It matters not whether the Libel be true or false or whether the Party be of good fame or ill fame for it inciteth all the same Family Kindred or Society to revenge and so tendeth by consequence to the effusion of blood and to the breach of the publick Peace and therefore such Libelling be it true or false is punishable by our Law It was resolved in the Star-Chamber 44. Eliz. Hallywoods Case that if any find a Libel and would preserve himself out of danger if it be a private Man the finder may either burn it or presently deliver it to some Magistrate but if it concern a Magistrate or Publick Person he ought to give it to the Magistrate One Jeffes was indicted for that he exhibited an infamous Libel Cro. 3. part Jeffes case f. 175. directed unto the King against Sr Ed. Coke late Chief-Justice of the Kings Bench and against the said Court for a Judgment given in the said Court in the Case of Magdalen Colledge affirming the said Judgment to be Treason and
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
parts of the Exchequer which were before of antient building and weak The punishment of this crime in the Civil Law is this Peculatus poena aquae ignis interdictionem in quam hodie successit deportatio continet Porro qui in eum statum deducitur sicut omnia pristina jura ita bona amittit 4. Bribery Bribery sayes Coke is a great Misprision Crimen Repetundarum when any man in Judicial place takes any Fee or Pension Robe or Livery Gift Reward or Brocage of any person that hath to do before him any way for doing his Office or by colour of his Office but of the King only unless it be of meat and drink and that of small value upon divers and grevious punishments Having given you a description of Bribery I propose these Queries with Resolutions upon them and then shew what the Civil Law saith touching Bribery and Reward Whether Bribery can be committed Quaest although there be no suit depending in foro contentioso Bribery may be committed not only when a Suit dependeth in foro contentioso Resp but also when any in Judicial place doth any thing virtute or colore Officii though there be no Suit at all For example Co. 3. Inst f. 148. if the Lord Treasurer for any gift or brocage shall make any Customer Controller or any Officer or Minister of the King this is Bribery for he ought to take nothing in that Case Laws made contra Ambitus by the Statutes of 12. R. 2. c 2.5 E. 6.5.6 Co. Litt. f. 234. a. Co. 3. Inst f. 154. Hobarts Reports Roy v. Bishop of Norwich f. 75. but that he make all such Officers and Ministers of the best and most lawfull Men and sufficient for their estimation and knowledg These Laws aforementioned made contra crimen Ambitus are worthy to be known by all but more worthy to be put in execution for they prevent Bribery and extortion They that buy will sell Whether this offence of Bribery can be perpetrated Qu. 2. by one that hath a Judicial place in the Ecclesiastical Court The Statute of 5 E. 6. c. 16. Resp doth extend as well to Ecclesiastical Office as temporal which concern the Administration and execution of Justice Co 3. Inst 148. Cro. 2. part Trevons Case f. 269. and therefore any Chief Judicial Officer Ecclesiastical taking any thing virtute or colore Officii for any Office Ministerial or Judicial is guilty of Bribery Touching Gifts and Bribery take notice what the Civil Law sayes Non in totum Xeniis abstinere debebit Proconsul sed modum adjicere 1. De Xeniis ut neque morose in tetum abstineat neque avare modum Xeniorum excedat quam rem Divus Severus Imperator Antonius elegantissime epistola sunt moderati D. 4.16.6.3 cujus epistolae verba haec sunt Quantum ad Xenia pertinet Audi quid sentimus Vetus proverbium est neque omnia neque quovis tempore neque ab omnibus Nam valde inhumanum est a nemine accipere sed passim vilissimum est omnia avarissimum Imo non est inhumanum Nam munera excoecant oculos sapientum ac pervertunt verba Justorum verum hic agitur saies Gothofre dus de muneribus quae dantur Proconsuli ut hospiti non ut Judici Et hic aperte Xenia ut appellat quoque hic Jurisconsultus Xeniola distinguntur a dono munere seu munerum qualitate Aliud ii est munus aliud Xenion Xeniolon Lege Julia repetundarum tenetur 2. De Repetundis D. 48.11.3 D. 48.11.9 qui cum aliquam potestatem haberet pecuniam ob judicandum decernendumque acceperit Qui munus publice mandatum accepta pecunia rumperunt crimine repetundarum postulantur 5. Extortion Extortion is a Misprision by wresting or unlawfully taking by any Officer by Colour of his Office any money or valuable thing of or from any Man either that is not due or more then is or before it be due Quod non est debitum Co. Litt. 368. b. vel quod est ultra debitum vel ante tempus quod est debitum Of this crime it is said that in no other than Robbery and another saith that it is more odious than Robbery Co. Lit. 368. b. for Robbery is apparent and hath a face of a crime but extortion puts on the vizor of vertue for expedition of Justice and the like and it is ever accompany'd with that grevious sin of perjury we call it in Latin Crimen expilationis seu concussionis But the Quaere may be whether Extortion and Exaction are all one It is answered They are not for there is this difference taken between Exaction and Extortion Extortion is where an Officer demandeth and wresteth a greater summe or reward than his just Fee And Exaction is where an Officer or other Man demandeth and wresteth a Fee or reward where no Fee or reward is due at all 6. Striking in the Kings Courts where he resides personally or by Representation If any Man in Westminster Hall Co. 3. Inst f. 140. or in any other Place sitting the Courts of Chancery the Kings Bench the Common Bench the Exchequer or before Justices of Assize or Justices of Oyer Terminer shall draw a weapon upon a Judge or Justice though he strike not this is a great Misprision for the which he shall loss his right hand 12. E. 3.13 and forfeit his Lands and goods and his Body to perpetual imprisonment The reason is because it tendeth ad impedimentum Legis terre So it is if in Westminster Hall or any other Place sitting the said Courts there or before Justices of Assize or Oyer and Terminer and within the view of the same a Man doth strike a Jury 3. Eliz. Dyer 188. or any other with weapon hand shoulder elbow or foot he shall have the like punishment but in that case if he make an assault and strike not the offender shall not have the like punishment One Peter Cary was indicted for drawing his sword in Aula Westm sedentibus Curiis Cro. 1. part Cary's Case 405. and in disturbing the Sheriff in making an Arrest upon one T. by force of a Bill of Middlesex and being arraigned and found guilty had Judgment of perpetual Imprisonment and to pay one hundred pounds to the Queen And note that upon the evidence it appeared to be upon the stairs ascending the Court of Wards and so out of the view of the Courts But Popham said although it were out of the view of the Courts yet if the Indictment had been as it ought to have been viz coram Domina Regina the Judgment should have been that his right hand should have been cut off and that he should forfeit all his Lands and Chattels and have perpetual Imprisonment Sr William Waller was indicted for that he in the Palace of Westminster neer the Great Hall Cro. 3. part Sr.
calling him therein Traitour perjured Judge and scandalizing all the Professours of the Common Law and containing much other scandalous matter and fixed this Libel upon the great Gate at the entrance of Westminster Hall and in divers other publick Places And being upon this arraigned prayed that Councel might be assigned which was granted and he had them but would not be ruled to plead as they advised but put in a scandalous plea and insisting upon it affirmed that he would not plead otherwise whereupon it was adjudged He should be committed to the Marshall and that he should stand upon the Pillory at Westminster and Cheapside with a Paper mentioning the offence and with such Paper be brought to all the Courts at Westminster and be continued in Prison until he made his submission in every Court and that he should be bound with sureties to be of good behaviour during his life and should pay a thousand pounds fine Adam de Ravensworth was indicted in the Kings Bench for the making a Libel in writing in the French Tongue Mich. 10. E. 3. Coram Rege Rot. 92. Ebor. against Richard of Snowshal calling him therein Roy de Raveners c. wheupon he being arraigned pleaded thereunto Not-guilty and was found guilty So by what has been said a Libeller or publisher of a Libel committeth a publick offence and may be indicted therefore The words of the Civil Law touching Libellers are these Injuria committitur Just 4.4.1 si quis ad infamiam alieujus Libellum aut Carmen aut Historiam scripserit composuerit ediderit dolove malo fecerit quo quid eorum fieret Si quis famosum Libellum sive domi Cod. 9.36 De famosis Libellis sive in publico vel quocumque loco ignarus repererit aut corrumpat priusquam alter inveniat aut nulli confiteatur inventum Si vero non statim easdem Chartulas vel corruperit vel igni consumpserit sed vim earum manifestaverit sciat se quasi authorem hujusmodi delicti capitali sententiae subjugandum 11 and last False Rumours and slanderous news None shal report slanderous news whereby discord may arise between the King and his People 3. El. c. 34. or Great Men of the Realm And he that doth so shall be taken and kept in Prison until he hath brought him into the Court which was the first authors of the tale The penalty is the same for telling slanderous lies of the Great Men of the Realm 2. R. 2. c. 5. But by the 12. 12. R. 2. c. 12. R. 2. it is enacted that when any such is taken and imprisoned and cannot find him by whom the Speech be moved that he be punished by the advice of the Councel notwithstanding the said Statutes Note Inter Leges Alvaredi c. 28. the Law before the Conquest was That the Author and Spreader of false Rumours amongst the People had his tongue cut out if he redeemed it not by the estimation of his head To conclude It may easily and manifestly appear to all such as have been conversant in our Chronicles how pernicious and dangeto this our Kingdom unlawful Assemblies and false Rumours have been in all precedent Ages yea such as at the first were very small and inconsiderable and began upon very small occasions yet not being repressed in time grew to such greatness and height that they afterward put in hazard the State and Government of this Land And therefore it is behoveful and good wisdom for all Magistrates and Justices of Peace to endavour by all good means to quench the beginnings and first sparks of such offences as knowing that for want of timely restraint they may soon grow to like danger again And the axiome in our Law is Interest Reipublicae ut pax in Regno conservetur quaecumque paci adversentur provide declinentur i. e It it most necessary in a Common-wealth to provide that tranquility and peace be continued in the Realm and that all things being contrary thereunto may by foresight be eschewed Thus much of the first Part of my Treatise I proceed to the Second Judicium Criminis OR THE JUDGMENT OF ENGAND Touching PLEAS OF THE CROWN CONCERNING Judgments Criminal I shall present these particulars worthy of the Candid Readers observation 1. The Definition of punishment 2. The end of punishment 3. The Division or several kinds of punishment found in our Authours 4. The rules to be observed by our Judges for the inflicting of pains or punishments 5. The circumstances to be weighed in relation to punishments 6. The persons to be considered in Criminal Judgments 7. The matters of Judgements Criminal 8. The Judicial Acts according to our Law Of these in their order 1. Of the Definition of punishment Punishment in general signification is Malum passionis quod infligitur ob malum actionis Mirror c. 4 sect 12. but particularly it is defined by Mr Horn thus Payne est a satisfaction de Trespasse 〈◊〉 de peche 2. Of the end of punishment The principal end of punishment in our Law is that others by example may fear to offend Co. 3. Inft. f. 4. 6. 108. Co. Lib. 4. Beverleys Case 124. a b 3. H. 7. 1. b. Vt poena unius sit metus multorum and therefore a Man that is non compos mentis or an Infant that is within the age of discretion is not un Home within the statute of 25. E. 3. c. 2. de proditionibus for the end of punishment is that others may be deterred from the perpetration of similar offences But such punishment can be no example to mad Men or Infants that are not of the age of discretion Touching the end of punishment I shall offer the saying of Quintilian and Seneca Quintilian hath these words Omnis paena non tam ad delictum pertinet quam ad exemplum Seneca thus De C. C. l. 1. c. 21. In vindicandis injuriis haec tria Lex sequuta est quae Princeps quoque sequi debet ut aut eum quem punit emendet aut ut paena ejus caeteros meliores reddat aut ut sublatis malis securiores caeteri vivant 3. Of the Divisions or several modes of punishment The kinds or modes of pain whereby delinquents are asserted are these saith Bracton Sunt quaedam quae adimunt vitam Lib. 3. c. 6. Tract 1. de Actionibus vel membra sunt quae auferunt Civitatem Burgum vel Provinciam Sunt quae continent auxilium perpetuum vel ad tempus vel coercitionem ss Imprisonamentum vel ad tempus vel ad perpetuum Sunt quae fustigationem verber ationem poenam Pilloralem Tymboralem damuum cum infamia inducunt sunt etiam quaedam quae dignitatis ordinis inducunt depositionem vel alicajus actus privationem vel probibitionem The Division of Fleta is thus Personalium injuriarum quaedam sunt criminales quaedam Civiles Lib. 1. c. 16. Criminalium
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
viz. that he of malice prepensed killed IS A. pleadeth that he is not guilty modo forma yet the Jury may find him guilty of Man-slaughter without malice prepensed because the killing of IS is the matter and malice prepensed is but a circumstance From Accusation both by way of Appeal and Indictment which is as it were the Declaration I proceed to the Pleas of the Parties accused which are denominated exceptions Now the Pleas or Exceptions in Indictments or Appeals are these § Anterfoitz attaint d'un auter offence Auterfoitz Acquit Auterfoitz convict de mesme le Felony devant Iudgement Auterfoitz convict d'un auter Felony auterfoitz attaint de mesme le offence Of these briefly in order 1. Auterfoitz attaint d'un auter Offence It is a sore saying which some Men have to plead for themselves viz. That they are already condemned to be hanged and ask Judgment whether during the attainder they should answer to the felony whereof they are condemned or to any other And this plea serveth where the Party condemned hath already forfeited as much as he can forfeit so that it is to no purpose to travel him any further But in some special cases when there is some end of it a Man already condemned may be arraigned again As if a Man attainted of felony Co. 3. Inst f. 213. were guilty of Treason also at the time of the felony committed he may now be put to answer the Treason notwithstanding his Attainder of felony because the King thereby was entitled to have the forfeiture of all his Landes of whomsoever they were holden 1. H. 6.5 Otherwise it is if the Treason were committed after the Felony or at the least if it were after the Attainder had of the felony for then the Title vested in the Seigniours before the Kings Title might not be devised by matter accruing ex post facto but if a Man be attainted of Treason he cannot be after attainted of a former Treason v. Cro. 2. part Sr Walter Rawleighs Case 495. But the Queries may be Qu. 1. Whether in divers Appeals of Robbery against one Person he shall be attaint at every one of their Suits Resp It is answered The Womans Lawyer lib. 5 sect 13 that if divers Men have divers Appeals of Robbery against one to the end that every Man may have again his goods were of he was robbed by making fresh Suit he shall be attaint at every one of their Suits Qu. 2. Whether an Appeal of Robbery doth lye for a Robbery done before the felony of which the Party was attainted Resp It is answered that the Party may have his Appeal of Robbery Co. 3. Inst f. 213. for a Robbery done before the felony whereof he was attainted because in the Appeal he is to have Restitution of his goods besides Judgment of death Qu. 3. Whether a Man attainted of Petit Larceny can be after attainted of Felony Resp It is answered If a Man be attainted of Petit Larceny Ibid. he may be attainted of felony for the which he shall have Judgment of death because it is an higher offence and is to have another Judgment Qu. 4. Whether a Man attainted of felony and pardoned shall answer at the Kings Suit to other felonies committed before and whereof he was not indicted at the time of the Attainder Resp It is answered that per aliquos videtur quod ita as well as at the Suit of the Party in an Appeal yet some held otherwise 10. H. 4. That a Man can die but once at the Suit of the King and he that is pardoned is as a New Man all Judgments as against the King being determined But note If a Man be adjudged to his Penance of Paine Dyer 14. Eliz. 308. Cobhams Case Fort and Dure yet he may be impeached for any former felony because the Judgment is not given for the felony but for his Contumacy 2. Auterfoitz acquit This Plea the Common Law doth allow because it commandeth that a Mans life should not be put in Jeopardy twice for one and the same offence But then the Acquital must be of the very same offence or else his Plea is to no purpose Therefore if two Men be indicted of felony as principals and afterwards by another Indictment it is found that one of them did the felony and the other did feloniously receive him after the felony committed he that is secondarily indicted and arraigned as accessary shall not be discharged by pleading arraignment and acquital upon the first Indictment for the offence is not supposed the same and one but committed at divers daies 27. Ass Pl. 10. And this for Accessaries after the felony But when felony is done by force of Commanding and procurement of another he that shall be arraigned as Accessary may plead that he was acquit c. though it were as principal and the offences were at divers daies for vulnus praeceptum factum sunt quasi unum factum Note in an Indictment or Appeal of death Co. 3. Inst f. 213 214. if it be found that he killed him in his own defence he is acquited of the felony for ever 3. Auterfoitz convict de mesme le felony devant Iudgement If a Man commit murder and be indicted Co. Lib. 4. Holecrofts case convict or acquitted of Man-slaughter he shall never answer to any other Indictment of the same death for all is one and the same felony for the same death Wetherel brought an Appeal against Darby of murder Co. lib. 4. fol. 40. a. the Defendant pleaded Nan culpable and was found guilty of Man-slaughter and had his Clergy afterwards he was indicted of murder and upon it arraigned at the Kings Suit and he pleaded the former conviction in the Appeal at the Parties Suite and it was adjudged a good Barre ad thereupon discharged for this was a good Barre at the Common Law and restrained by no Statute and the reason is because the Life of Man shall not be put twice in Jeopardy for the same offence 4. Auterfoitz convict d'un auter felony Before the Statutes of Qu. Eliz. c. 4. and 18. Eliz. c. 6. If a Man had committed divers felonies if he had been indicted of the last and had the benefit of his Clergy he could not have been impeached for any of the former felonies albeit for the same he could not have had his Clergy by the Act it is provided that notwithstanding the allowance of such Clergy he may be impeached for any former offence for which he could not have had his Clergy 5 and last Auterfoitz attaint de mesme le offence Auterfoitz attaint of the same felony was a good Plea Co. 3. Inst 213. as well in an Indictment as in an Appeal at the Common Law But by the Stat. of 3. H. 7. c. 1. in an Appeal of death at the Suit of the Party auterfoitz attaint de mesme le mort is no Plea at this day
Appeal and upon an Indictment for in the case of an Appeal of death or other felony Co. Litt. 390. b 13. a b. Process being awarded against the Defendant and hanging the Process the Defenfendant conveyeth away the Land and after is outlawed the conveyance is good and shall defeat the Lord of his Escheat But if a Man indicted of felony and hanging the Process against him he conveyeth away the Land and and after is outlawed the conveyance shall not in that case prevent the Lord of his Escheat For in the case of the Appeal the Writ containeth no time when the felony was committed and therefore the Escheat can relate but to the outlawry pronounced but the Indictment contriveth the time when the felony was committed and therefore the Escheat upon the outlawry shall relate to that time But note that in case of an Indictment there is also a difference observed for as hath been said it shall refer to the time alledged in the Indictment for avoiding of Estates Charges and Incumbrances made by the Felon Co. Litt. 390. b. Plowd Com. f. 488. b. after the perpetration but for the mean profits of the Land it shall relate only to the Judgment as well in the case of outlawry as in other Cases There is a Question raised in the Case betwixt Grosse and Gayer viz. Whether an Attainder to a praemunire Cro. 3. part f. 172 173. shall have relation to the offence for the forfeiture of his Lands or only to the time of the Judgment pronounced But the Judges did give no Resolution of it being a point of difficulty Note Perkins sect 29. All the Attainders as to Goods and Chattels shall have relation but unto the Judgment given so that a gift c. made of such Goods by a Felon before the Judgment is good Touching Alienations by a Criminal the Civil Law says thus Post contractum capitale Crimen donationes factae non valent ex constitutione Divorum Severi Antonini D. 39.5.15 Si quis mortis causa donaverit D. 39.6.7 poena fuerit capitis affectus removetur donatio ut imperfecta quamvis caeterae donationes fine suspitione poenae factae valeant Having shew'd the Law touching Alienations I shall present to the Reader 's view the things imply'd at this day both in the Judgment of Treason and Felony 1. In the Judgment of High Treason In the Judgment relating to Crimen laesae Majestatis is imply'd at this day First Co. 3. Inst 211. Co. 3. Inst 19. 26. H. 8. c. 13.33 H. 8. c. 20.5 6. E. 6. c. 11. the forfeiture of all the Traitors Mannors Lands Tenements and Hereditaments in Fee simple or in Fee Tayle of whomsoever they be holden Also of Rent-Charges Rents seck Commons Corodys and other Hereditaments which are not holden for in case of High treason the Tenure is not material Also of Uses 33. H. 8. c. 20.5 E. 6. c. 11. Co. lib. 7. Inglefields Case Conditions unless inseparably knit to the Person of Rights of Entry of Lands in the Right of the Wife during the Coverture of the profits of Land which the delinquent hath for life during his life of trusts in Chattels Reals but not of Freehold Cro. 2. part f. 512. Pl. 23. vid. Andersons Reports Inglefeilds Case Co. lib. 12. f. 6. Dyer 288. b 289. a. Note that Rights of Actions where the Entry is taken away are not forfeitable Secondly his Wife to lose her Dower Thirdly he shall lose his Children for they become base and ignoble Fourthly he shall lose his Posterity for his Blood is stained and corrupted and they cannot inherit to him or any other Ancestor Fifthly all his Goods and Chahttels are forfeited c. and reason is says Coke his Body Lands Coods Posterity c. should be torn pulled asunder and destroy'd that intended to tear and destroy the Majesty of Government 2 In Judgement of Felony A felon impliedly is punished in these particulars 1. Co. Litt. f. 41. a. 392. a b. Co. 3. Iust 47. He doth lose his Children that they shall become base and ignoble 2. He shall lose his Posterity for his blood is stained and corrupted that they cannot inherit unto him or any other Ancestor 3. He shall forfeit all his Lands and Tenements which he hath in Fee and which he hath in taile during his life 4. All his Goods and Chattels Note that before the Stat. 1. E. 6 c. 2 5. E. 6. c. 11. the Wife of a Person attainted of Misprision of treason Murder or Felony losed her Dower but since she is dowable by these Statutes Hitherto of the Judgment or Sentence it self In doing of Execution 3. Execution of the Judgment pronounced both in Treason and Felony two things are worthy of the Reader 's notice Co. 3 Inst f. 52.211.212 1. That it be done by the right Officer as the Sheriff or Marshal for if any other execute offendours it is felony Execution must be made by the Sheriff or Marshal according to the Judgment for it is a maxime in the Law of England Non alio modo puniatur quis quam secundum quod se habeat Condemnatio Punishment may be avoided or escaped 4. Of the means by which the Judgment or Execution may be avoided in part or in all in part or totally either 1. By the means of Justice as By Writ of Error or Falsifying the Attainder 2. By the means of Mercy as By the Kings Pardon or By Restitution of these in their order 2. Of Writs of Error If the Judgment be erronious both the Judgment and Execution thereupon and all the former proceedings shall be reversed by Writ of Error but if the the former proceeding and the Execution be erronious the Execution only shall be reversed 2. Of Falsifying Attainder To falsify in Legal understanding is to prove false that is to avoid Co. 3. Inst f. 210. or to defeat the Attainder in Latin Falsare seu falsificare falsum facere Wheresoever the Judgment is void or coram non Judice Co. 3. Inst f. 231. the party is not driven to his Writ of error but may falfify the â—ttainder by Plea shewing the special matter which proveth it void or coram non Judice In which case the Party forfeiteth neither Lands nor Goods If a Man committeth Treason or felony and is thereof attainted in due form of Law and after this Treason or Felony is pardoned by a general Pardon hereby the foundation is self viz. Treason or Felony being by Authority of Parliament is discharged pardoned Dyer 20. Eliz 135. Co. Lib. 6. f. 13 14 in Arundels Case the Attainder being builded thereupon cann't stand but may be satisfy'd and avoided by Plea for he hath no other Remedy by Writ of error or otherwise If A be indicted before the Coroner for the death of another and that A fled for the same hereby are all the Goods and
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
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.