before a Justice if it appears no Felony committed he may discharge him but if Felony be committed though it appears not that the party accused is guilty yet he cannot discharge him but must commit or bail him The cases wherein parties not bailable are 1. In respect of the hainousness of the Offence 1. In Charge of Treason against the King's Person counterfeiting the Seal Falsifying Money 2. Arson or burning Houses 3. In a Charge of Homicide 1. In case of a Charge of Murder Justices of Peace cannot bail but King's Bench may and do it at discretion for the Stat. West 1. extends not to that Court. 2. In case of Manslaughter tho' it be se defendendo and appear so to Justice of Peace they cannot bail the party accused If he confess the Fact upon examination if taken with the manner if apparently known or manifested that he killed another But if it be a non liquet and the Charge but Manslaughter there it seems they may bail Or if he had given a dangerous stroke till party dead he may be bailed But such bailment where Manslaughter or other Felony is committed must be 1. By two Justices of the Quorum 2. After Examination And these be all the persons excluded from bail simply in respect of the nature of the offence 1. All Accessaries before or after any Offence bailable but if Principal be attainted and Accessary indicted he shall not be bailed until he hath pleaded to the Indictment 2. Persons indicted of Larceny before Sheriff if of good name 3. Imprisonment for a light suspicion if of good name 4. Indicted or accused of petty Larceny only 5. Appeal of Approver after death of Approver 6. Accused for Trespass for which a man ought not to lose life or member and if bail not taken away by a subsequent Stat. hence also a party indicted for Burglary or Robbery may be bailed 2. As bail is ousted in some cases in respect of the greatness and consequence of the Offence charged so it is in respect of the notoriety of the Offence For bail is when indifferenter whether guilty or no. But when that indifferency is removed the Offender otherwise bailable is become not bailable 1. If a Person be Attaint by Outlary of any Felony yet if Defendant comes in and pleads in avoidance of the Outlary be it in Appeal or Indictment the King's Bench may bail him 2. If he be convict by Verdict or Confession of any Felony not bailable But if a man be convict of Manslaughter se defendendo the Justices of B. R. or Goal Delivery or special Writ may bail him but not Justices of Peace So if he have a Charter of Pardon 3. He that becomes an Approver cannot be bailed 4. He that Abjures cannot be bailed 5. He that 's taken with the manner not bailable and consequently he that 's taken freshly upon Hue and Cry Bridges's Case Justice of Peace fined 40 l. for bailing such 6. He that breaks Prison not bailable 7. Open and notorious thievery not bailable But he that is taken for a light suspicion bailable But if Presumption strong or Defamation great he may refuse to bail him This lies in discretion 8. Those that are appealed by Approvers unless 1. Approver die 2. Approver wave his Appeal 3. Unless he be of good name And the reason hereof because when the Appealer accuses another he confesses himself Guilty and therefore induceth a presumption of guilt in another But this concerns not Justices of Peace because no man can become Approver before them because they cannot assign a Coroner but they may take a Confession by way of Evidence But a bare Indictment or Appeal did not induce such presumption that may hinder the bailing of a Person otherwise bailable Westm 1. c. 25. But in Appeals of Death the Court in discretion admit not Defendant to bail but upon weighty cause If the party be acquitted within the year upon Indictment he is not to be discharged but remanded or bailed at discretion that an Appeal may be prosecuted against him 3. Who may take bail or bail Offenders Bail was taken either virtute brevis or ex officio 1. Bail taken virtute brevis that was either General or Special General Writs Homine replegiando Habeas Corpus Writ of Mainprise this was directed to Sheriff commanding him to deliver by the Mainprize of it the party indicted before him But now by Stat. 28 E. 3. c. 9. these Inquests before Sheriff are taken away and consequently the Writ of Mainprize Special Writ as where party is convict of Manslaughter se defendendo Special Writ to certifie 2. Bail ex officio 1. The King's Bench who have a higher Power than any other Power 1. They may either in case of an Original Suit by Indictment or Appeal before them or upon an Indictment or Commitment returned to them by Habeas Corpus or Certiorari bail where another Court cannot In cases prohihited by Stat. West 1. c. 15. v. 2. Inst parol viscount autres parol ne soient replevisable 2. Justices of Goal Delivery who may bail in cases where Justices of Peace cannot if it be a thing within their cognizance As a man convict of Manslaughter se defendendo or a person convict of Manslaughter that hath a Pardon to plead 1. Justices of Peace they cannot bail in any case but where they have cognizance of the cause therefore if taken with Process of Rebellion out of Chancery they cannot bail 2. The Statutes that give power to Justices of Peace to bail in case of Felony are 3 H. 7. c. 3. 1 2 Ph. Ma. c. 13. upon which two kinds of bailment 1. Upon the first Accusation and that doubtless must be done 1. By two Justices of Peace whereof one of Quorum 2. After Examination taken concerning the Offence 2. After commitment And though some Opinions be that he may be bailed by one Justice yet it seems otherwise for the Stat. of 1 R. 1. 3. that gave power to one stands repealed by 3 H. 7. 3. After Indictment and Process thereupon issued in case of Trespass or Misdemeanour or Penal Statute not prohibiting bail he may be bailed by two Justices whereof one of the Quorum and by some by one Justice but this holds not in case of Felony 4. The Sheriffs Baily or Officers of Indictment before them But these are removed from that power as it seems by the Stat. 28 E. 3. c. 9. 1 E. 3. c. 3. whereby they are not to make Process but to remove them to the Sessions of the Peace Having considered the person that may arrest and bail it makes way to consider the Offences against such Arrest or Imprisonment by breaking such Prison c. And herein ensues the second Consideration 2. What Prison within this Act 1. Stocks 2. Prison of the Lord of Franchises 3. The Custody of any that lawfully arrests or the house of the Constable or other
made in a house Constable may break open house to preserve peace or take the Offender 3. If in Affray assault be made upon Constable he may strike again or imprison Offender 4. Constable may in such cases imprison till he find surety of Peace 5. It seems if Affray pass and not in view of Constable he cannot imprison without warrant of Justice unless Felony done or like to be done 3. What by a Justice 1. In his presence the same power that a private person or Constable and may imprison till surety of Peace found the like upon Complaint 2. If dangerous hurt Justice may imprison till it appear whether the party die or live or bail the party The former the better discretion Riot When above the number of two meet to do some unlawful act and do act it but if they meet and act it not an unlawful Assembly in power of Justices to suppress them 13 H. 4. c. 7. A man for safeguard of his house against Malefactors or Trespassers may assemble his Friends for his Defence But he cannot assemble to prevent a beating threatned in his presence Riot recorded by one Justice traversable Forcible Entry Forcible Entry must be either manifest furnished with unusual weapons menace of life or limb breaking open doors contrary it seems of doors only hatched Ejecting forcibly the Possessor Cum multitudine gentium one may commit a Force three at least a Riot Forcible Detainer Menacing Possessor to go out upon pain of loss of life or member Unusual Weapons or Company refusing to admit the Justice to come in to view the Force Detainer with Force justifiable where party in possession three years but though his Possession be lawful yet within three years actually removed though restored by Justices enables not a Detainer with Force But if three years Possession hath been by Force then the last forcible Detainer punishable and hinders not Restitution If Disseisee within three years make lawful Claim this an Interruption of his Possession Restitution 1. Justices B. R. may restore upon Indictment before them 2. One Justice of Peace cannot restore upon an Indictment before him nor Sessions of Peace unless upon an Indictment found at Sessions 3. It seems Justice of Oyer and Terminer or Goal Delivery cannot Restore 2. How Upon view Upon Indictment must be sufficient adhuc extra tenet If Erroneous may be superseed by same Justice before Executed After it is Executed then Restitution in B. R. upon Indictment quashed Restitution stayed By Certiorari By quashing Indictment By pleading thereunto which is nevertheless Indiscretion Barretry Riding Armed Going Armed V. St. 2 R. 2. c. 1. 7 R. 2. c. 13. 2 E. 2. c. 3. Stat. Northampton Nusances BRidges Publick Are not chargeable upon a particular person but ratione ten ' But Common Right repairable by whole Country The manner of Repairing directed by Stat. 2 H. 8. c. 3. Highways Highways Provisions 1. For their enlarging and removing Trees within 200 foot of either side 5 El. c. 13. 29 El. c. 5. 2 3 Ph. Ma. c. 8. The charge of repairing Highways lies on common right upon the Parish wherein they are unless 1. A Special Prescription cast it on another 2. Unless the Owner of the Land in which they are inclose it then it must be cast upon the Owner But they that have Ditches on either side ought to scoure them 8 H. 7.5 Inns Ale-houses Bawdy-houses Gaming-houses Nusances Common Inns. 1. ANY person may erect a Common Inn so it be not ad nocumentum 1. In respect of their multitude when there are enough ancient Inns before 2. In respect of the inconvenience of the place or situation 3. In respect of Disorders there committed All which are common Nusances and may be fined and presented 2. He that erects a Common Inn and refuses to entertain Guests may be Indicted for the same 3. If Common Inns contrary to Statute suffer persons to tipple there as Ale-houses he may be compelled to be bound or may be suppressed as Ale-house or may be Indicted at Sessions See for Ale-houses the suppressing of them and the punishment for tippling in them 5 E. 6. c. 25. Jac. c. 9. 4 Jac. c. 5. 7 Jac. c. 10.21 Jac. c. 7. 1 Car. c. 4. An Ale-house-keeper suppressed for the Offence 7 Jac. c. 18. 21 Jac. c. 7. for suffering tippling or 7 Jac. c. 10. for selling less than is there directed or 21 Jac. c. 7. for continuing drinking in another Ale-house or 21 Jac. for being drunk cannot be licensed in three years and if it be such License void Forgery Perjury Champerty OFfences not Capital more particularly by Statute Forgery by Stat. 5 El. c. 14. Perjury and Subornation 5 El. c. 9. Champerty Embraceries and Maintainance 32 H. 8. c. 9. Ingrossing Forestalling and Regrating 5 E. 6. c. 14. Salt Victual within Statute Apples and Cherries no Victual Mault seems not Corn and Grain expresly by 5 E. 6. A Stranger not Subject bringing Victual into Realm may sell them in gross but Vendee cannot neither may any Merchant buy within the Realm and sell in gross Attempting to inhance the price of Merchandize a kind of forestalling Selling Corn in the Sheaf unlawful Matters of Religion 1. REviling Sacrament Imprisonment Fine and Ransom 1 E. 6. c. 1. Rep. 1. Ma. c. 2. revived 1 El. c. 7. 2. Not coming to Church to hear Common Prayer by 5 E. 6. c. 1. subject to Church Censures Nota 3 E. 6. c. 1. settled a Book of Common Prayer Enjoyned the use Refusing to use using other or disproving it Imprisonment for six months for first for second a year life for third 5 E. 6. c. 1. Alters Prayers but applies Penalties to new Book Nota Rep. 1 Ma. that Rep. 1 Jac. c. 25. 1 El. c. 1. Enacts the use of the Book of 5 E. 6. with some Alterations 1. Any that refuse it 2. Use another form 3. Deprave it if Spiritual six months Imprisonment first offence one years Imprisonment second Offence Deprivation third Offence If Lay first Offence twelve months Imprisonment second offence during life Depraving Book of Common-Prayer first offence 100 Marks second offence 400 Marks third offence Goods and Imprisonment during life 3 El. c. 1. concerning Consecrating Bishops Concerning rejecting Church 1 El. 2. Every Sunday and Holiday super 12 per diem 23 El. c. 3. 10 l. per mensem for absenting and if absent 12 months upon Certificate bound to good behaviour 29 El. c. 2. Conviction of Recusancy 35 El. c. 1. Penalty of disswading from Church holding of Conventicles Convict to Prison without bail until Conformity Nonconformity within 3 months after Conviction shall abjure the Realm Not departing or returning Felony without benefit of Clergy Submitting discharged of the Penalty by this Act. Relapsing loseth benefit of Submission Ten pounds per mensem for every person retaining or relieving Recusant after notice C. 2. Recusants not to remove unless from dwelling 1 Jac. c. 4. the heir
of a Recusant conformable discharged third part forfeiture Penalty of sending Children into Seminaries 3 Jac. c. 4 5. Penalty for refusing Oath of Supremacy 1 El. c. 1. 5 El. c. 1. Of Obedience 3 Jac. 14. 7 Jac. c. 6. Kings Bench. NOW we come to consider of the proceeding against a party for Felony and therein 1. Concerning the Jurisdiction of Court wherein Proceedings are to be had in Capital Causes and those are principally 1. Kings Bench. 2. Justices of Goal Delivery 3. Justices of Oyer and Terminer and Assizes 4. Sheriffs and Coroners 5. Lord Steward of the Houshold The Kings Bench the Supream Court of Criminal Jurisdiction It is a Court of Oyer and Terminer Goal Delivery and Eyre in that County where it sits By the coming of the Kings Bench into any County during the sitting thereof in that County all power and proceedings of Oyer and Terminer is suspended But a Special Commission of Oyer and Terminer may be granted bearing Test in the Term and Kings Bench may adjourn and then they may sit Where the Kings Bench proceeds upon an Offence committed in the same County there need not fifteen days between Teste and Return of Venire facias but if they proceed upon a Cause removed by Certiorari they must have fifteen days Goal Delivery 1. JUstices of Peace ought to deliver the Indictments not determined unto those Justices and they may Arreign any person in Prison upon them 2. They may take Indictments against any person in Prison and so may Justices of Oyer and Terminer and herein they have a concurrent Justice 3. They may take a Pannel returned by Sheriff without Precept 4. They may deliver by Proclamation persons suspected when there is no Evidence to Indict them 5. May award Execution of persons in Prison Outlawed before Justices of Peace 6. May assign Coroner to Appeal and make Process against Appellors in Foreign County 7. May punish those that unduly bail Prisoners 1 2 Ph. Ma. c. 13. 8. May deliver the Goal of persons committed for High Treason 9. May Receive Appeals by Bill against persons in Prison 10. By Stat. 10 E. 3. must deliver their Records into Treasury at Michaelmas 11. Others may be added to the former Commission by Commission of Association or their power committed to fewer by Si non Omnes 12. By St. 2 3 Ph. Ma. c. 18. a General Commission of Goal Delivery through the County not be a Supersedeas to a Special Commission granted in a Corporation parcel thereof 13. By St. 1 E. 6. c. 7. subsequent Commissioners of Goal Delivery power to give Judgment upon such as were Repreived by former Commissioners of Peace Goal Delivery Oyer and Terminer and others not continued by granting new Commissions If a Prisoner be bailed he is yet in Prison to be Arreigned before those Justices for he is a Prisoner contrary in case of Mainprize 21 H. 7.33 9 E. 4.2 39 H. 6.27 Although their Commission determine with their Session after they are gone they may command a Reprieve or Execution Dyer 205. Licet soit ad Gaolum deliberandum hac vice uncore poit adjourner lour Commission Bro. Jur. 226. Commission d'Oyer Terminer Goal Deliberand poit Estoyer ensemble Ibid. Bro. Commission 24. Justices d'Oyer Terminer Goal Delivery poit enquirer per ambideux powers and make up their Records accordingly 9 H. 7.9 Bro. Jud. 226. Oyer and Terminer 1. JUstices Authority must be by Commission not by Writ otherwise their Proceeding void 2. They cannot proceed but by Indictment taken before themselves 3. Nota By good Opinion they may proceed the same day or Session against a party Indicted Nota le contrar ' ad estre adjudge 4. Where Offences are limited to be heard and determined in any Court of Record generally it may be heard or determined before them Quaere for Gregory's Case contra Dy. 236. 5. Others may be added or their power contracted by Association or Si non omnes 6. One sitting without Adjournment determines the Commission 7. Justices of Oyer and Terminer or of Peace cannot assign a Coroner as Justices of Goal Delivery may 8. By St. 9 E. 3. they are also to send their Records determined into the Exchequer 9. A Supersedeas suspends their power a Procedendo revives it the like of Commission of Nisi prius c. But it determines not without notice 1. By shewing the new Commission 2. Proclaiming it in the County 3. Or Sessions held by new Commission 10. An Award on the Roll not sufficient to return a Jury but a Precept under Seal of Commissioners 11. And Nota That a Special Commission of Oyer and Terminer may be granted to sit in one County to hear and determine Treason c. in another but then the Indictment must be found in proper County and the Tryal by Jurors of proper County By Stat. 27 E. 1. de finibus Justices of Assise have power to deliver Goals of Felons and Murderers And in case of Counterfeiting Coin c. upon Stat. 3 H. 7. St. 2. c. 7. they may have a Special Commission Justices of Peace THE Stat. of 18. E. 3. c. 2. gives them power by Commission to hear and determine Felonies and Trespasses against the Peace But then there must be a special Clause in their Commission Necnon ad aud ' terminand ' felonias c. Otherwise they cannot do it Yet that Clause doth not improperly make Justices of Peace Justices of Oyer and Terminer because that it is a distinct Commission therefore a Statute as that of 5 El. c. 14. limiting Forgery to be heard and determined before Justices of Oyer and Terminer gives not the power therein to Justices of Peace but Justices of Kings Bench are Justices of Oyer and Terminer within this Statute By force of general words of their Commissions they may enquire of Murder at their Sessions for though by Stat. 6 E. 1. c. 9. and 4 E. 3. Murder and other Homicides must stay till Goal Delivery yet the Stat. of 18 E. 3. c. 2. 34 E. 3. c. 1. 17 R. 2. c. 10. hath enlarged their Commission and Power Yet in respect of Stat. 1 2 Ph. Ma. c. 19. directs Justices of Peace to take Examinations in Cases of Homicides and other Felonies and to certifie them to Justices of Goal Delivery in point of Discretion they do forbear to proceed to determine Felonies But for Petty Larceny and other small Felonies they use to bind over Prosecutor to Sessions Justices of Peace may proceed upon Indictment taken before themselves or some Justice of Peace but cannot proceed upon Indictment before Coroner or Oyer and Terminer but Justices of Goal Delivery may and Justices of Peace are to deliver Indictments taken before them to Justices of Goal Delivery They cannot deliver persons suspect by Proclamation as Justices of Goal Delivery may In Cases of Felony by
Statute limitted to be heard before Justices of the Peace they may proceed at Sessions and consequently may bind over Informers and certifie Examinations at Sessions But such Felonies by Statute as are specially limitted to Justices of Oyer and Terminer or other Justices and not to them the Justices of Peace cannot proceed to take Indictments as upon Stat. 3 H. 7. c. 18. for contriving to destroy the King c. upon Stat. 33 H. 8. 12. Murderers in Kings Palace upon Stat. 18 H. 6. c. 12. of razing or imbezelling Records upon Stat. 13 H. 6. c. 1. secret imbezelling goods upon St. 2 3 Ed. 6. c. 24. striking in one City and dying in another City But in former cases it seems they may take Examinations and commit the Offenders and bind over Prosecutors If any Indictment be taken before Justices of Oyer and Terminer Goal Delivery or Coroner they cannot proceed upon them but upon Indictments taken before Sheriff in his Turn they may proceed by St. 1 E. 4. c. 2. In cases of Treason Misprision of Treason Premunire regularly Justices of Peace have no Jurisdiction yet two things may be done 1. In any case of Treason because 't is a breach of the Peace they may upon complaint imprison Offenders take Examinations bind Prosecutors over and certifie their proceedings into Kings Bench or Goal Delivery 2. In some cases they are enabled to take Indictments but not hear and determine the same but certifie the same into Kings Bench upon Stat. of 5 23 El. c. 1. 1. 1. The Maintainer of the Authority of the Sea of Rome 2. Obtaining Bulls c. 3. Withdrawing from Allegiance 4. Bringing in Agnus Dei A person brings one before Justice suspected of Felony and refuses to be bound to prosecute may be committed if it appear he can testifie materially They may Enquire of any Felony within the County though within the Verge 4 R. Wigg's Case Coroner CORONER Hath power in three Cases 1. To take Indictment of Death but this he can only do super visum corporis otherwise void Hence 1. If Body be interred before he comes the Township amerced and he must digg up the Body so if Township suffer Body to lie long to Putrefaction without sending for Coroner The like of one lying in Prison 2. If Coroner be remiss and comes not when sent for he shall be fined and imprisoned 3. He may enquire of flight and such Presentment not Traversable 4. If Body cannot be seen Justice of Peace may enquire thereof Nota The Record of the Coroner of great Authority if he Record a Confession of a Felony by Approver or a Confession of breach of Prison or an Abjuration it shall not be Traversed And it seems by some he hath power to enquire of Rapes breach of Prison He hath Jurisdiction upon Arms of the Sea where a man may see from side to side 2. Concerning Appeals Coroner together with Sheriff hath power in County Court to receive Appeals of Robberies and other Felonies but then it must be of a Felony in the same County Upon this Appeal they may grant Process till Outlary but it seems they cannot send an Exigent because prohibited by St. 6 M. c. 17. Such Appeal may be by Bill and it may be removed into Kings Bench by Certiorari but it must issue both to Sheriff and Coroner It appears By St. 3 H. 7. c. 1. That an Appeal of Murder by Bill lies before Sheriff and Coroner 3. The Coroner alone may take the Appeal of an Approver of a Felony in any County But then he cannot make Process thereupon but enter it in his Roll and send it to the Justices of Goal Delivery who thereupon may issue their Process to the Sheriff of the foreign County to take the Appellor 4. To take the Abjuration of him that acknowledges a Felony done in the same County or any other And note That though more Coroners than one in any County yet any one may execute any of the powers before But the Presentment of him that is first taken stands Abjuration dit esse toll oue Sanctuary per 21 Jac. Sheriff THE power of the Sheriff to take Indictments was either Virtute Commissionis or Officii which are taken away per Stat. 28 E. 3. c. 9. His Power and Office in the Turns 1. His Turn must be held infra mensem Paschae Michaelis otherwise the Indictments there are void per St. 31 E. 3. c. 15. 2. Indictments must be under Seal of the Jury by Stat. of West 2. c. 13. indented per Stat. 1 E. 3. c. 17. and the same for Lord of Franchises 3. Indictors must be of good name having 20 s. Freehold or 26 s. 8 d. Copyhold otherwise Sheriff punishable by Stat. 1 R. 3. c. 4. 4. The Turn can take no Indictment but of that which is Felony by Common Law or of such matters as are particularly by Act of Parliament limited to them and therefore an Indictment of Escape void there 5. Upon any Indictment of Felony before Sheriff in his Turn they can make out no Process but must remand them to Justices of Peace who have power to proceed thereupon as if taken before themselves by St. 1 E. 4. c. 2 The Court-Leet in effect hath the same Jurisdiction with the Turn but Presentments of Felony before them are to be sent before Justices of Goal Delivery 3 H. 4.18 Appeal HAving considered the Courts of Justice now we come to consider the way of bringing Capital Offenders to Trial and that is Regularly by one of these 3 ways Appeal Approver Indictment And herein some things are proper to each proceeding some things are common to them all which come to be considered after particulars proper to either dispatched viz. Process Arraignment and therein of Principal and Accessary Demeanour of the Party Arraigned Standing Mute Confessing Pleading and Pleas. Declinatory Sanctuary Clergy In Barr Pardon Auterfoits Acquit Anterfoits Convict To the Felony Trial per Battel per Jury And therein Process against Jury Challenge Verdict Per Peers in case of Nobility Judgment in the several Cases Capital Execution Reprieve Falsifier Per Errour Per Plea Appeal Appeals in respect of the manner of proceeding are of two kinds By Writ By Bill Touching Appeals by Bill they may be prosecuted 1. In the King's Bench against any that is in custod ' Marr ' or let to Bail They are Sovereign Coroners 2. In the Court before Commissioners of Goal Delivery against a Prisoner or one let to Bail but not to one let to Mainprize But if one of Appellees absent remove in B. R. by Certiorari 3. By some before Justices of Peace quod Quaere 44 E. 3. Coron 95. 4. Before Sheriff and Coroner as before and it may be removed by Certiorari in B. R. 3 H. 7. c. 1. 5. Before Constable and Marshal of a Felony done out of the Realm 1 H. 4. c. 14. Appeals are in matter 1.
wage Battel 5. Clerk Convict may 3. In what cases 1. None can approve but a person Indicted therefore if only in Prison upon suspicion he may indeed confess the Felony but such Confession amounteth not to an Attainder or Conviction though it be an Evidence and therefore cannot approve 2. The Appellee in Appeal cannot be an Approver 3. The Appellee of Approver cannot be Approver for that would be infinite 4. Though a person Indicted approve yet if after Appeal be against him Approver ceaseth 5. He that hath once pleaded to the Felony cannot be an Approver but shall be hanged for he is found false 4. Of what Offences It must be only of the Offences contained in the Indictment be it Felony or Treason and therefore not of another Offence nor of an Accessary before or after to the same yet his Oath general therefore as to other Offences it is but a Detection not an Approvement 5. Before whom Before such Judges only as can assign as Kings Bench Goal Delivery Oyer and Terminer High Steward but not before Justices of Court Baron or County Court. But it is in the discretion of the Court to suffer him to be Approver or to respite Judgment and Execution till he hath Convicted all his Partners 6. How Demeasned after Appeal 1. After Felony confessed upon Arraignment a Coroner assigned and sworn in Court to discover Offenders 2. A day prefixt within which he is to perfect his Appeal before the Coroner and in every of these days he must Appeal for if he fail and Court record it to be hanged The limit to perfect his Appeal by 5 E. 3. c. 34. 183 days but that Repealed 15 El. 3. During time limited for his Appeal he shall be at large and have 1 d. per diem till Appeal perfected 4. If he Appeal persons beyond Sea or if Appeal such as are not in rerum natura and that appear by Testimony of County or by Retorn of Sheriff quod non fuit invent ' he shall be hanged 5. After his Appeal formed before Coroner he must repeat it verbatim to Court and if he fail thereof and Court Record it he shall be hanged 7. Process in Appeal 1. In the same County Coroner may award Process to Sheriff till Exigent 2. If Appellee be in a foreign County yet the Judges before whom the Appeal is may grant Process viz. B. R. or Itinerant by Common Law And by Stat. 28 E. 3.1 de Appellis the Justices of Goal Delivery may send Process into a foreign County as well to apprehend the Appellee as a Venire Facias to try the Issue 8. Proceedings upon Trial. The Appellee may put himself upon County or wage Battel If five Appellees and they wage Battel he must fight them all If two approve against one Appellee if the Appellee vanquish the first he is acquitted against the rest though Appellor retract his Appeal or be vanquished yet if Offence be within Clergy he shall have it and so of Appellee 9. Proceedings after Trial. If Appellor convict Appellee either by Battel or Verdict the King ex merito justitiae is to pardon him and from the time of his Appeal till his Pardon or Conviction ought to have wages Indictments THESE things considerable 1. Where an Indictment requisite in cases Capital where not 2. What the quality of the Indicator 3. Of what matters they may Enquire 4. Before whom found 5. What requisite in the manner of them 1. Where an Indictment requisite for party to be Arraigned at King's Suit 1. By ancient Common Law if a man was taken in Larceny with the manner and that brought into Court with Prisoner Prisoner shall be Arraigned thereupon without Indictment St. P.C.f. 148. And such was the use of the Manner that had infang Thief Ibid. f. 29. v. 1 E. 3.17.17 Ass 99. but this disused 2. If Trespass be brought de muliere abductâ cum bonis viri and the Defendant found Guilty or if in Trespass for Goods the Defendant be found that he stole them this in the King's Bench equivalent to an Indictment and the Defendant be put to answer Felony 3. In some Cases upon Appeals by Appellors or Approvers not prosecuting c. Defendant Arraigned at King's Suit because it carries a presumption of truth and therefore if Defendant be both Appealed and Indicted upon a non prosecution of the Appeal the party shall be Arraigned upon the Appeal not the Indictment 4 E. 4.10 Wherein 1. If Plaintiff in Appeal by Writ be Nonsuit before Declaration he shall not be Arraigned at King's Suit 1. Because not certainty 2. Writ may be at anothers Suit but if it be by Bill either by Appellor or Approver it seems he shall because the certainty appears therefore in the former Case if there be no Indictment against him he is dismissed 2. If Plaintiff release his Appeal after he hath commenced it party shall be Arraigned at Kings Suit But if before it was commenced then not 3. If Plaintiff or Approver after Appeal commenced confess it false Appellor hang'd and Appelle discharged because amounts to a vanquishment 4. If Appeal abate by Act of Plaintiff as taking Husband or act in Law as death Appellee Arraigned at King's Suit but if it abate by insufficiency in the Appeal as by false Latin Misnomer or because Plaintiff disabled to commence Appeal as Utlary of Felony or Trespass or the year or day past or Plaintiff not Wife or Heir of Defendant not Arraigned upon Appeal but may be Indicted 5. If King pardon after Battel joined in Appeal by Approver no Arraignment at King's Suit but Appellee discharged And note where Prisoner Arraigned upon the Appeal a Cesset Process is entred upon the Indictment The return of the Sheriff of Rescue or Escape of a Felon not sufficient to put the party to answer the Felony 2. The second considerable is the quality of the Indictor Concerning Indictments in Leets and Turns v. ante upon Stat. W. 2. c. 13. 1 E. 3. c. 17. 1 R. 3. c. 4. 1 E. 4. c. 3. There is a general Statute that refers all Indictments as well in case of Felony as Treason 11 H. 4. c. 9. which requires 1. Indictors not to be 1. Persons fled to Sanctuary for Felony or Treason 2. Not outlawed 3. Not Indicted or Attainted 4. Not by Conspiracy 2. That Indictors be the King's Liege people 3. Returned by the Sheriff as Bailiff of Franchises 4. Not at the Denomination of any person And all Indictments taken contrary are void Hence it follows 1. That Prisoner upon Arraignment may plead this matter or any point of it and may plead over to the Felony Vide Scarle's Case 2. Though there be twenty of the grand Jury yet if one was outlawed or taken at the Denomination of another it voids the whole Indictment By Stat. 3 H. 8. c. 12. Justices of Goal Delivery or of Peace whereof one of the Quorum in open Sessions may reform the Pannel
Pardons ARE either of Course or Right such are 1. For a person Convict of Manslaughter or se defendendo 2. An Approver that vanquisheth Appellee Pardons of Grace some things requisite to their allowance per Stat. 1. Per Stat. 13 R. 2. c. 1. Pardon of Murder Rape or Treason must be especially expressed in the Pardon otherwise it ought not to be allowed in such cases 2. Per Stat. 10 E. 3. c. 2. there must be Surety of good bearing otherwise Charter void but special Non obstante may prevent it Matter at Common Law considerable 1. Charter of Pardon no barr of an Appeal and if party be Out-lawed in Appeal and King pardon he shall have a Scire Facias against Appellor who may pray Execution notwithstanding such Pardon but if ret ' feci and appears not that Appellee shall upon Pardon be discharged 2. Pardon of all Felonies is no barr to Exceptions if the Felon be Attaint yet an Exception of all Burglaries except the Burglary for which the party is Attainted 3. Pardon of all Attainders not good with a Pardon of the Felony 4. The Pardon of Felony reciting in the Pardon that the party is Indicted and he is not this is void 5. King may pardon the burning in the hand in Appeal Pleading the Pardon HE that pleads a General Pardon by Parliament wherein are Exceptions must averr that he is none of the persons excepted But of General Pardon by Parliament without Exception Court ex Officio must take notice He that pleads a Particular Pardon 1. Must shew it under Seal 2. Must have a Writ of Allowance 3. If vary must averr that the same person Thus far of Pleas in Barr upon Indictments or Appeals now we come to Pleas to the Fact Not Guilty 1. Regularly he that pleads any special matter in Barr in Cases Capital that confesseth not the Felony notwithstanding the Plea found against him the Felony shall be enquired of and therefore he shall plead over to the Felony 2. The immediate consequent to this Plea is Trial and that is either By Countrey Peers Battel 1. Concerning Trial per patriam and therein 1. Where Issues tried 2. What Process against Jury 3. Before whom 4. Challenge 5. Evidence to be given 6. Verdict Trial. 1. WHERE Tried 1. For Trial of foreign Treasons and foreign Accessaries or strokes in one County and death in another v. supra in Indictments For Trial foreign Pleas per Stat. 20 H. 8. c. 14. made proper to all 32 H. 8. c. 3. Foreign Pleas pleaded by a person Indicted of Felony and Triable per County shall be tried where party is Arraigned but it is now in Treason triable in foreign County by vertute of Stat. 1 2 Ph. Ma. Process against Jury 1. Justices of Goal Delivery have their Pannel returned by Sheriff without any Precept by a bare Award but Justices of Oyer and Terminer not 2. Per bon Opinion Justices of Peace and Oyer and Terminer cannot make their Venire Facias to try any Issue retornable the same Sessions but Justices of Goal Delivery clearly may 3. If several persons Arraigned upon an Indictment or Appeal and they severally plead Not Guilty Plaintiff may take out one Venire Facias or several 4. If Venire Facias be joint and Challenge by one drawn against all 5. Though Pannel be joint and Tales awarded yet Court of Goal Delivery may after send the Pannel to prevent that Incumbrance 6. In Appeals if after Issue Plaintiff tries it not a Venire Facias by Proviso may be for Defendant yet upon a Venire Plaintiff may have a Tales Tales 1. If a full Jury appear not or be Challenged in Indictment or Appeal Plaintiff may have a Tales 2. Upon Indictment or Appeal because Defendant may challenge peremptorily Tales may be granted larger then principal Pannel as forty Tales 14 H. 7.7 3. But succeeding Tales must be less than former unless the former be quashed and then the same number with that which is quashed 4. If any of Jury die before sworn a new Tales grantable Before whom 1. A Nisi prius not grantable where King Party unless prayed by Attorney 2. Per Stat. 14. H. 6. c. power to Justices of Nisi prius to give Judgment in Felony and Treason tried before them 3. Per Stat. 42 E. 3. c. 7. Enquest in Assize and Goal Delivery may be taken before the Pannel returned in that Court but not in other Cases Challenge of Array or Polls 1. EX parte Regis per Stat. 33 E. 1. c. King shall not Challenge without Cause but yet he is not compellable to shew cause till Pannel perused 2. Ex parte prisonarii the Challenge is either Peremptory or upon Cause I. Peremptory Challenge 1. Peremptory Challenge not allowable but when life of Prisoner comes in question and therefore not upon Collateral Issues 2. At Common Law he might have challenged peremptorily 35 under three full Juries and if he challenged above he should have Judgment to be hanged 3 H. 7. 12. But per Stat. 22 H. 8. c. 4. made perpetual by 32 H. 8. c. it is reduced to 20 and now if he Challenge above 20 he shall not be hanged but his Challenge Over-ruled and he put upon his Trial yet vid. Statham Coron ' contr ' 3. In Cases of Treason and petty Treason the Challenge of 35 restored per Stat. 1 2 P. M. c. 10. II. Challenge for Cause we mention but 1. Cause of insufficiency per St. 2 H. 5. c. 3. 40 s. per Ann. required in County but this as to Aliens corrected by 8 H. 6. and ultra in Cities by Stat. 23 H. 8. c. 13. Goods to value of 40 l. 2. Unindifferency Indictors not to be of Jury per Stat. 25 E. 3. c. 3. 3. In reference to an Alien medietat ' linguae where 1. In no Case Indicator ought to be de medietat ' linguae 2. In Treason trial per medietat ' linguae rep per St. 1 2 Ph. Ma. quaere ad Appeal 28 E. 3. in that Case 3. In Appeal an Alien against an Alien no medietat ' linguae 4. Scot no Alien to have medietat ' linguae 5. Jurors need not be of same Nation but any Aliens 6. He that will have advantage of Trial per medietat ' linguae must pray it otherwise he cannot have benefit by way of Challenge Dy. 304.357 7. Egyptians excluded from the Trial per 1 2 Ph. Ma. c. 4. Evidence to petty Jury 1. IN Case of Treason There must be two Accusers or Witnesses per Stat. 1 E. 6. c. 12. 5 E 6. c. 7. and this stands notwithstanding Stat. 1 2 Ph. Ma. c. 11. but only in Case of Treason for Counterfeiting Coin Those Witnesses must be only by hearsay 2. In Case of Felony 1. What allowed as Evidence per Stat. 1 2 Ph. Ma. c. 13. 2 3 Ph. Ma. c. 10. the Justices have power to
caetero qui prisonam fregerit subeat Judicium vitae vel membrorum pro fractione prisonae nisi causa pro qua capt ' imprisonat ' fuit tale Judicium requirit And herein these things are inquirable 1. Who may Arrest or Imprison 2. What a Prison 3. What breaking a Prison 4. What cause that requires a Judgment to make this Felony 1. Who may Arrest or Imprison 1. Why a private person 2. Why a publick Officer 1. Arrests by a private person and that of two kinds 1. Either commanded or enjoyned by Law 2. Or permitted or allowed by Law Arrests commanded by Law 1. Persons present at the committing of a Felony must use their endeavours to apprehend the Offender otherwise they are to be fined and imprisoned Hence it is that if a Murder be committed in the day in a Town not inclosed the Town shall be amerced and if in a walled Town be it night or day the Town shall be amerced if Offender escape Stat. 3 H. 7.1 So it seems if one strike another dangerously though death hath not yet hapned Upon Hue and Cry well levied every man may and must arrest the Offender upon whom it is levied by Stat. Winchester and want of pursuit thereof is punishable by Fine and Imprisonment The manner of levying Hue and Cry where a Felony is committed or a dangerous stroke given is this Resort to the Constable declare the Fact describe the Party and the way he is gone who thereupon is to raise the Town be it by night or by day and to give the next Constable warning and he the rest I aid an Officer that has a lawful warrant in fait or in Law to arrest a Malefactor And in these cases it seems it is in the power of such private person to break the house if upon demand he cannot be admitted to take the Offender 4 Ins 177. Videtur sur felony fait just suspicion ascun puit arrester 3. N'est punishable licet Constable suffer luy d'escape A permissive Arrest per private person If a Felony in fact be committed and a private person suspect another upon probable cause he may be arrested though in truth innocent And these probable causes Hue and Cry levied Company with the Offender Goods in his Custody Living vagrantly Common Fame But upon such suspicion he cannot break open the door of a house but may enter the door being open The person arrested by either of these means must be brought to the Constable and if Constable be not to be found to a Justice and in case of a Felon known put into Stocks or Common Goal till he be brought to a Constable Arrest per a publick Officer without Process of Law Nota Whatsoever a private person may do in this case an Officer as a private person may do Now these Officers 1. Constable If complaint be made to a Constable of Felony committed or of a dangerous blow given though the party not dead in case there be an assault upon the Constable or in case there be any other breach of the Peace the Constable may imprison the party in the Stocks in the Goal or in his House till he can bring him before a Justice of Peace But if it be a bare breach of the Peace unless it be in his view he cannot arrest the party but complaint must be made to a Justice of Peace for the Constable is but Conservator not Justice of Peace unless a Felony be done If the Constable see an Affray and the Malefactor fly into another County before arrest he may pursue him and arrest him there and must bring him before Justice of the County where arrested But if the Escape was after arrest then he may retake him in another County and bring him to the first County He may break a door open to take an Offender where Felony committed or dangerous wound given 2. A Justice of Peace upon complaint may issue out his Warrant to arrest the party 1. A general Warrant to search for Felony or stoln Goods not good 2. If a Justice hath cause of suspicion he may arrest a common person not as a Justice 3. Upon complaint of a Felony committed and when doubt may be of apprehending the Offender in assistance of the party suspecting he may grant his Warrant to the Constable to apprehend the party but the party suspecting ought to be present because 't is his arrest But by vertue of such Warrant doors cannot be broke open 4. But at Sessions the Justices may award a Capias against the person indicted and by vertue thereof the Sheriff may break open a door A party being apprehended by such Warrant is either to be Committed Bailed or Discharged The Commitment by a Justice ought to be to Common Goal by Stat. 13 H. 6.12 and the Mittimus ought to be 1. Under Seal 2. To contain the Cause 3. To have an apt Conclusion viz. and there to stay till delivered by Law otherwise Warrant void And note That a person committed for Treason Felony or otherwise cannot be discharged till indicted and acquitted or Ignoramus found or discharged by Proclamation by Kings Bench upon Habeas Corpus In order to the consideration of Arrests and Escapes here fit to consider of Bail and Mainprise in cases of Felony 1. What Bail is 2. In what cases 3. By whom Bail 1. BAIL are Sureties taken by a person authorized to appear at a day and to answer and be justified by Law The difference between Bail and Mainprise is That Mainprise are only Surety but Bail is a Custody and therefore the Bail may reseize the Prisoner if they doubt he will fly or detain him and bring him before a Justice and the Justice ought to commit the Prisoner in discharge of the Bail or put him to find new Sureties The like may be done by the Justices in case of inefficient Bail If a Justice of Peace take inefficient Bail and the party appear not the Justice finable by Justices of Goal Delivery The sufficiency of Bail in respect of number two at least and those Subsidy men in case of Felony And in respect of the sum forty pounds at least Bail is either a certain sum or corpus pro corpore in which case the Offender not appearing the Surety shall not be Executed but Fined 29 Assis 44. 2. In what Cases 1. Generally To refuse Bail where the party ought to be bailed the party refusing the same is finable as a Misdemeanour and admitting Bail when it ought not punishable by Justices of Goal Delivery or punished as a negligent Escape at Common Law de quo infra 2. Particularly At Common Law Bail in all Cases but Homicide But now the Stat. Westm. 1. c. 15. directs what Cases bailable what not At this day in all Offences below Felony the party accused is bailable unless 1. Ousted by that Statute or some other Statute 2. After Judgment be given If a person be brought
Examine Offenders and Informers 2. The Examination of the Offender not upon Oath but Subscribed by him 3. Examination of others must be upon Oath 4. This must be certified by Justices 1. If it be a small Felony to Sessions 2. If it be a great Felony c. to next Goal Delivery 5. These Examinations if persons dead or absent may be given in Evidence But Prudence to have the Justice or his Clerk sworn to truth of Examinations 6. But Examinations taken upon Cause of Divorce for a forcible Marriage not allowed to be read upon an Indictment upon 3 H. 7. for same Marriage 2. By whom 1. Wife or her Examination not to be used for or against her Husband 2. The Examination of an Infant of Thirteen nay of Nine allowed in some Cases 3. One Attaint of Conspiracy Forgery or Perjury not allowed a Witness 4. One duly set on Pillory 3. In what manner 1. Evidence for King always upon Oath but Evidence for Prisoner not upon Oath yet no known Law that restrains it But by some Statutes in some Cases Evidence for Prisoner upon Oath as 31 El. c. 4. 4 Jac. c. 2. The Confession of the Offender taken upon Examination Evidence with Oath not of the Informer 4. Where Evidence maintains the Indictment 1. If the Indictment be of a Felony at one day though the Evidence be of another day the Jury may find generally against Prisoner and leave the person that is interessed in point of time to falsifie or the Jury may find the true day upon their Verdict and then the forfeiture shall relate thither 2. If the Indictment lay the Felony at one place the Evidence proving the Fact at another place in the same County maintains the Indictment 3. If the Indictment and Evidence differ in specie mortis then it maintains it not as Indictment of Poisoning Evidence of stabbing maintains it not But if the Indictment be of poisoning with one kind of Poison and the Evidence of another or if the killing with a Dagger and the Evidence is of killing with a Staff there it maintains the Indictment for it agrees in substance and kind The like of Accessary before though Poison or Weapon differ 4. Indictment that A. gave a mortal blow and B. C. and D. were presentes abettantes Evidence that B. gave the blow and A. C. and D. presentes abettantes yet it maintains the Indictment 5. Indictment of A. as Accessary to B. and C. Evidence proves him only Accessary to B. maintains the Indictment 6. Indictment of Murder ex malitia praecogit ' Evidence of malice in Law as killing an Officer without provocation yet maintains the Indictment 7. Evidence upon Statute of stabbing 21 Jac. Evidence that the dead stroke first yet Evidence to mantain Indictment 23 Car ' Howards 8. Two Indicted as Principals Evidence proves one as Accessary before he shall be discharged of that Indictment 28 H. 8.5 9. Vid. Stat. 21 Jac. c. 27. Mother endeavouring to conceal the death of her Bastard-child shall suffer death as in case of Murder unless she prove by one Witness that Child was born dead Vide Act. 17 Car. infine for the further Relief of his Majesties Army in the Northern parts Act continued till end of next Sessions continued over till some Act of Parliament for their continuance or discontinuance Verdict VERDICT in Cases Capital 1. It must be given and Jury cannot be discharged till it be given 2. It must be given openly in Court and no privy Verdict 3. It may be found Specially as an Indictment of Murder the Jury may find him Guilty 1. Of Manslaughter 2. Per Infortunium 3. Se Defendendo But then it must find the manner of it that Court may Judge thereof so to the value or manner of the Larceny Now we should come to Trial By Battel Process Vide the whole Process there of C.P.C. 27. Judgment in several Cases I. IN High Treason In all Cases except Counterfeiting Coin Drawn Hang'd Entrals taken out and burnt Head cut off Body quartered and Quarters hang'd up 2. In Counterfeiting Coin Drawn and Hang'd but the Judgment of Women in those Cases is Drawn and Burnt II. In Petty Treason 1. For a Man Drawn and Hang'd 2. For a Woman Drawn and Burnt III. In Felony Hang'd till Dead and this cannot be altered by King to Beheading IV. In Petty Larceny To be Whipt Forfeits Goods V. Death per Infortunium No express Judgment yet Forfeits Goods VI. Death se defendendo No express Judgment yet Forfeits Goods Misprision of Treason Forfeits Goods Forfeits Profits of Land during Life perpetual Imprisonment Vide for Seisure of Goods 1. Not before Indictment 2. Not removed before Attainder 1 R. 3. c. 3. Falsifying of Attainders 1. BY the Party by Writ of Error 2. What others may falsifie it 1. A Purchaser may falsifie an Attainder of the Felon by Outlary or Confession in this point if he Purchase before Attainder and after time of Felony supposed 2. A Purchaser mesne between the time of Felony committed and the Attainder by Verdict cannot falsifie in point of Offence but he may for the times 3. If Attainder was by such as had no good Commission the Party himself may falsifie Attainder Cas Com. Leicest 4. If the Principal Attainted and then Accessary and Principal reverse the Attainder the Attainder of the Accessary is eo ipso avoided and his Heirs may have Mortdanc ' against Lord per Escheat 5. Attaint of Treason and then the Treason is pardoned by Act of Parliament the Party or his Heir shall falsifie Attainder 6. In Case of Goods 1. Fugam fecit found by Coroner cannot be falsified though upon his Arraignment it be found he did not fly but if Indictment be void or insufficient no Forfeiture 2. A man Indicted before Justices of Oyer and Terminer acquit by Verdict and found he fled and the particulars of his Goods found they may be Traversed 3. Default till Exigent though after acquitted Goods Forfeited for it is a fugam fecit in Law But if the Indictment Appeal or Process insufficient their Forfeiture saved so if it be reversed by Errour or pardoned before Exigent Memorandum Flight or Exigent in case of Petty Larceny Forfeits Goods Execution and Reprieve 1. EXECUTION must be pursuant to Judgment and cannot be altered by King as from Beheading to Hanging 2. But King may pardon part of the Execution as in Treason he may pardon all but Beheading 3. It must be done by proper Officer 4. If a Woman Convict of Treason and Felony be quick with Child she shall have one Reprieve but not second time Vn est trove culp ' de Treason Felony c. Reprieve devant Judgment Roy Mort ' uncore Judgment poit FINIS Books printed for Richard Tonson THE Courtiers Calling shewing the ways of making a Fortune and the Art of Living at Court By a Person of Honour Price 1 s. 6 d. Don Carlos
reinforced the Statute 25 E. 3. and reduced all new Treasons to the old Standard of 25 E. 3. and so all Treasons declared between 25 E. 3. and 1 Ma. were abrogate 3. All Treason includes Felony therefore if the Indictment want proditoriè a Pardon of all Felonies discharges it Now concerning the kinds of High Treason Compassing and imagining the death of the King Queen or Prince and declaring the same by some open Deed. I. What is a Compassing the death Declaring by an open act a design to Depose or Imprison the King is an Overt act to manifest the compassing of his Death II. What a King 1. A King before his Coronation a King within this Statute when the Crown descends upon him 2. A King de facto and not de jure a King within this Act and a Treason against him is punishable though the right Heir get the Crown 3. A Titular King that is not Regnant as the Husband of the Queen not a King within this Act and the Stat. 1 2. Ph. Ma. c. 10. but the Queen is 4. The right Heir to the Crown yet not in Possession therefore is not a King within this Act. III. What the King's Wife It extends not to the Queen Dowager IV. What the eldest Son and Heir of the King within this Act The second Son after the death of the eldest within the Act. The eldest Son of the Queen Regnant within the Statute The Collateral Heir apparent as Roger Mortimer 11 R. 2. the Duke of York 39 H. 6. not Son and Heir within this Act yet Quaere V. What an Overt act requisite to make such comparing Treason 1. An Overt act must be alledged in every such Indictment proved 2. Compassing by bare words is not an Overt act as appears by many temporary Statutes against it 1 El. c. 6. 13 El. c. 1. but the same set down by him in writing is an Overt act yet now it has been adjudged that words are an Overt act and the Law taken accordingly 3. Conspiring the death of the King and providing weapons to effect it or sending Letters to second it assembling People to take the King into their power Lord Cobham's writing Letters to a Foreign King to invade an Overt act Conspiring to levy War no Overt act unless levied because relates to a distinct Treason II. Treason levying War against the King 1. Conspiring or compassing to levy War without a War de facto no Treason but if a War levied the Conspirators Traytors as well as the Actors This appears by the Stat. 13 El. c. 1. that made such Conspiracy Treason during the Queens life 2. Raising a Force to burn or throw down a particular Inclosure only a Riot but if it had been to have gone from Town to Town and cast in all Inclosures Bradshaw's case or to change Religion or to inhance the Salaries of Labourers a levying of War because the Enemy publique 3. Joyning with Rebels pro timore mortis and recessed quam cito potuerunt ad Castles no Treason 3 Inst 10. 4. Holding a Force or Castle against the King's Force a levying of War III. Treason adhering to the King's Enemies giving them Aid within the Land and without 1. What adhering Giving Aid and Comfort to them surrendring the King's Castle for reward 2. What an Enemy The Subject of the King becoming a Rebel he that out of the Realm succours him this not adhering to an Enemy within the Clause An Enemy coming hostilely into England shall be dealt with as an Enemy executed by Marshal Law or ransomed but a Subject assisting shall be dealt with as a Traytor The Scots invading England in the Queens time adjudged Enemies though Scotland then in Amity Lord Herris Case 3 Inst p. 11. 3. Within the Land or without how that Foreign Treason shall be tried 1. At Common Law for a Foreign Treason the Indictment and Trial must be where the Land lies 2. Per Stat. 35 H. 8. c. 2. yet in Force it may be tried or inquired of in B. R. or by Commissiion in any County where the King appears the King's Signiture may be either to the Commission or Warrant thereof Treason done in Ireland is within that Statute Perrot's Case Per Stat. 28 H. 8. c. 15. Treason upon the Sea inquirable and triable by Commission in any County at Common Law it must be before the Lord Admiral IV. Treason Violation 1. The King's Wife extends not to a Dowager if she consent 't is Treason in her 2. The Prince's Wife same Law as before 3. The King 's eldest Daughter then living Thus far of Treason that relates to the King's Person and nearest Relations wherein generally 1. There must be an Overt act to manifest the Evidence and word of mouth is Overt act as it has been adjudged vide the Statute of 13 Car. 2. cap. 1. 2. That it must be made appear by manifest proof and not by conjectures 3. He must be lawfully attaint thereof either by Confession or by his Peers in his life time And therefore if a Person be slain in open War he forfeits nothing neither can he be attaint in such case but by Parliament Thus far of Treasons relating to the King immediately now follows that which is interpretative Treason Killing the Chancellor Treasurer Justice of one Bench or other Justice in Eyre or of Assise or Oyer and Terminer in their place doing their Offices 1. This extends but to the Persons here named not to the Lord Steward Constable or Marshal or Lords of Parliament 2. It extends to those only during their Office 3. It extends only to killing not wounding without death But by Stat. 3 H. 7. c. 14. compassing to kill the King or any of his Councel made Felony Counterfeiting the Great Seal or Privy Seal 1. It must be an actual counterfeiting thereof compassing to do it no Treason 2. Affixing the Great Seal by Chancellor without Warrant no Treason 3. Fixing a new Great Seal to to another Patent is a great Misprision but no Treason nor a Counterfeiting within this Statute 4. Aiders and Consenters to such Counterfeiting are within this Act. 5. The Counterfeiting of the Privy Sign or Sign Manual no Treason within this Act but made so by the Statute 1 Ma. c. 6. V. Treason concerning the Coyn. 1. Counterfeiting the Kings Coyn this was Treason at Common Law and Judgment only as of Petty Treason But whereas Clipping c. is made Treason by subsequent Statutes the Judgment is to be hang'd drawn and quartered because introductive of a new Law Herein considerable 1. What shall be a Counterfeiting Clipping Washing and Filing of Mony for lucre or gain any of the proper mony of the Realm or of other Realms allowed to be current by Proclamation not within this Statute but made High Treason by Stat. 18 El. c. 1. but without corruption of blood or loss of Dower 2. What is Mony
Justice Homicide in Execution of Justice requires certain prescripts 1. That the Judgment given be by one that hath Jurisdiction in the Cause If a Justice of Peace give Judgment in Treason the Execution thereof Murder in Judge and Officer But if he give Judgment of Felony in Treason Felony in the Judge but not in him that executes it 2. That it be done by a lawful Officer Therefore if a Stranger of his own head or the Judge that gives the Sentence Executes when it is to be done by Sheriff Felony 3. That it be done pursuant to Judgment Judgment to be hang'd Sheriff beheads him Felony Homicide in advancement of Justice in Causes Criminal Civil 1. In Causes Criminal If a Sheriff or Bailiff having warrant to arrest a Person indicted of Felony and he will not obey and suffer himself to be arrested the Bailiff kills him no Felony The same if any Person pursues upon Hue and Cry or otherwise to arrest a Felon that flies If a Felon arrested break away from his Conductors to Goal they may kill if they cannot otherwise take him But in this latter Case there must be a Felony done If a Prisoner assault his Goaler and he kill his Prisoner no Felony Rioters or forcible Enterers or Deteinors standing in opposition to the Justice's lawful warrant and one of them slain no Felony Keeper or Parker may kill hunter if they fly or defend themselves 2. In Civil Causes Though Sheriff cannot kill a man who flies from the execution of a Civil Process yet if he resist the arrest the Sheriff or his Officers need not give back but may kill the Assailant so if in the arrest and striving together Officer kill him no Felony Now touching all the former Homicides these things observable 1. There must be no malice coloured under pretence of necessity for if it be it alters the Case and makes it Murder 2. The Party that did the Fact must be arreigned and upon Not Guilty pleaded the Special Matter must be found 3. Upon this Special Matter thus found the Party is to be dismist without any forfeiture or pardon purchased Thus of Homicide ex necessitate in reference to Publique Justice Others there are that are grounded upon Private Interest and they are of two kinds 1. Justifiable and consequently inducing no forfeiture at all nor needing pardon 2. Excusable and yet inducing forfeiture 1. Justifiable and inducing no forfeiture where a Person comes to commit a known Felony 1. If a man come to burn my House and I shoot out of my House and kill him no Felony 2. If a Woman kill him that assaulteth her to ravish her no Felony 3. If Thieves assault me in the Highway or in my House to rob me I or any of my Servants kill them no Felony or Forfeiture But if the assault in my House were not to rob but to beat me c. there 't would be only se defendendo and Goods forfeited and a Pardon of course to be granted because they came not to commit a known Felony for it cannot be judged whether he meant to kill me If one come to enter into my house claiming Title and I kill him Manslaughter Homicide excusable se defendendo where though it save the Life yet the Goods are forfeited this requires these things 1. It must be inevitable necessity yet in case of justifiable Homicide as of a Thief that comes to rob me or by an Officer resisted in the Execution of an Arrest the Party need not give back to the Wall But in this Homicide se defendendo the Party that is assaulted not excusable unless he give back to the Wall But if the assault be so furious and in such a place that giving back would endanger his life he need not give back A man fights and then falls to the ground then flying not necessary 2. It must be done in his own defence If A. be assaulted by B. before a mortal wound given A. gives back until he come to the wall and then in his defence kills B. this is se defendendo But if mortal wound first given then Manslaughter If A. upon malice praepense strike B. and then fly to the wall there in his own defence kills B. this is Murder But if there be malice between A. and B. A. strikes first B. retreats to the wall and in his own defence kills A. this is se defendendo If malice be betwixt A. and B. A. assaults B. B. retreats to the wall and then kills A. in his own defence if it be in the Highway he shall be discharged if not se defendendo Copston's Case Thus far of Homicides involuntary Homicide voluntary is either ex malitia praecogitata or sine malitia the former Murder the latter Manslaughter 1. Who shall be said a person killing A man that is Non compos mentis kills another this is no Felony the same for a Lunatick during his Lunacy But he that incites a madman to kill another is a principal Murderer A man dumb kills another Felony An Infant within years of discretion kills another no Felony as if he be nine or ten years old But if by circumstance it appeareth he could distinguish between Good and Evil it is Felony as if he hide the body make excuses c. But in such Case Execution in prudence respited to get a Pardon 2. What said Malice It is either implied or expressed Implied malice is collected either from the manner of doing or from the person slain or from the person killing 1. Malice implied in the manner of doing Poisoning wilfully any man implied malice If a man do an act that must apparently introduce harm and death ensue as to run among a multitude with a Horse used to strike But note If it were with an intention to do harm then Murder if without such intention Manslaughter The like of throwing a stone over a house among many people the intention of doing harm makes it Murder want of such intention Manslaughter because an unlawful act For an intention of evil though not against a particular person makes malice Killing any person without provocation Murder A. comes to B. who resists and strikes A. kills him Murder A. Distorts his mouth and laughs at B. who thereupon kills him Murder 2. Malice implied in respect of the person killed If a Watchman or Constable or any that comes on his assistance doing their Office be killed it is Murder though Killer knew him not to be such If any Magistrate or Minister of Justice having a lawful Warrant be killed 't is Murder As where a Serjeant comes to Arrest 1. Though in the Night 2. Though on Sunday 3. Though upon Arrest he shew not out of what Court or whose Suit 4. Though Process Erroneous 5. Though he shew not his Warrant or Mace where 't is not demanded But if Officer do what is not warrantable as break open a window to arrest