of the Iurors and that the Iuror in respect thereof doth beare an extraordinarie affection and is to make a recompence to the same partie and that therefore in this triall hée will fauour him and be a meane of Periurie and therefore if the Iuror be challenged for that cause he shall be drawen And some doe affirme the same cause of challenge and feare of Periurie to be 7. H. 6. 40. 19. H. 6. 66. if a Iuror hath béene godfather to either of the parties to that triall or to any childe of his 14 The Lawe expecting to be satisfied per Veredictum Iuratorum of the trueth of such causes as doe come to an issue dooth carefully foresée that those Iurors who are to deliuer the trueth by their verdict Periurie suspected in respect of ignorance of the cause should either before the time of the triall vpon their owne priuate knowledge or by their Euidence at the time of the triall be certainely informed of that trueth of the thing in question lest by ignorance mistaking falshoode for trueth they should slide into Periurie And because those that be dwelling or haue some land where the land lease or thing in question doth lie are more likely to haue intelligence of the trueth of the cause in question both to satisfie themselues and informe their Companions than other strangers of the same Countie are who dwell farre off the Lawe hath ordained by the Statute of Anno 27. Elizab. That there shall be sixe sufficient Hundredors impannelled vppon euery Issue ioyned which is to be tried in any of the Courts of the Kings Bench Stt. 27. El. 6. Common Pleas and the Exchequer Want of Hundredors or before the Iustices of Assise in all cases where euerie Iuror by the auncient lawes of this Realme ought to haue fortie shillings of fréeholde at the least And that at or vppon the triall of any personall action there shall two sufficient Hundredors at the least appeare And for that cause if in those cases there be not so many Hundredors at the least the Lawe doth conceiue they be ignorant of the truth of the Issue in triall And to that end for the auoiding of Periurie she will reiect the whole Iurie if they be challenged And so it is in an Assise where the plaintife is to be put in possession per Visum Iuratorum if he recouer or in any action where the Iurie is to haue the view of the land in question 8. Ed. 3. 69. Fitz. Chall 102. 169. if the same Iurors Want of the view or some of them had not the view of the land in question nor did know it before the Lawe will suspect that they will commit Periurie if they should be sworne séeing they be ignorant of the land and know it not in specie And therefore vpon challenge they shall be remooued 1. R. 3. 4. 15 Because our Law-makers haue in seuerall ages found by experience that nothing is a greater motiue enticement Periurie in respect of pouertie or rather inforcement to Periurie than néede and pouertie Therefore they haue endeuoured by many Statutes to prouide that such as be returned of Enquests should not onely be men of good behauiour and credite but also of conuenient liueliehoode estate and abilitie to liue of themselues for that Necessitie which hath no lawe nor bridle should not compell them to sell truth for rewardes nor to plunge themselues into Periurie for bribes And for the preuention of this Periurie in poore persons and such as bee of meane and weake estate Stt. 21. Ed. 1 by a Statute made Anno 21. Ed. 1. it was ordained That no Shiriffe Vndershiriffe or Bayliffe of Libertie shall put in any Recognisaunces of Assises Iuries Enquests or Attaints Iurors impanelled that shal passe out of their owne Counties that shall passe out of their proper County any person of their Bayliwickes except he hath lands and tenements to the yearely value of a hundred shillings at the least or that shall passe within the Countie except hée hath lands to the yearely value of xl s. And for the same cause vpon the same reason of preuention of periurie in poore and néedy persons by a Statute made Anno 3. H. 5. it was established St. 3. H. 5. 3 That no persons shall be admitted to passe in any enquest vpon triall of the death of a man or in any enquest betwéene partie and partie in plea reall or in plea personall whereof the debt or dammages declared do amount to xl Markes if the same person hath not lands and tenements of the yerely value of xl s̄ aboue all charges so that he be challenged for that cause by the party But by the Statute of An̄ 23. H. 8. St. 23. H. 8. 13. euery person being the Kings naturall subiect borne which by the name of a Citizen a fréeman Iurors to try felonies in corporat townes or any other name doth inioy the liberties of any Citie borough or town corporat where he dwelleth being worth in goods to the cléere value of xl li. shall be admitted in triall of Murders and felonies in euery Sessions and gaoles of deliuery kept in and for the libertie of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this Act extendeth not to any Knight or Esquire dwelling abyding or resorting in or to any such citie borough c. And by the Statute of An̄ 27. Eliz. it was enacted Sta. 27. El. 6. That in all cases where any Iuror to bee returned for the triall of any issue or issues ioyned in any of the Courts of the Kings Bench common Pleas the Exchequer or before Iustices of Assise by the Lawes of the Realme now in force ought to haue estate of fréehold in lands Where Iurors must haue 4. li. land tenements or hereditaments of the cléere yerely value of xl s̄ in euery such case the Iurors that shal be returned shall euery of them haue estate of fréehold in lands c. to the cléere yearely value of foure pounds at the least out of auncient demesne within the Countie where the issue is to be tried By the Statute of 11. H. 7. it is prouided St. 11. H. 7. 21. That no person shal be impannelled summoned or sworne in any Iury or Enquest in Courts within the citie of London Iurors in London except he be of lands tenements goods or cattels to the value of xl Markes And no person shall be impannelled summoned or sworne in Iuries or Enquests in any Court within the said Citie for lands or tenements or action personall wherein the debt or dammages amounteth to the summe of xl markes except he be in lands tenemēts goods or cattels to the value of one hundred marks St 19. H. 7. 13. By the Statute of Anno 19. H. 7. it was ordained That euery of the xxiiij persons dwelling within the shire where any riot
for commencing a wrong full suit for the law doth intend those suites to be pursued for vexation trouble and likewise in some other cases the def is amerced for the wrongfull detaining of that which is not his owne and for inforcing the plaintife by suit in law to séeke recouer his owne But as in all cases the vnlawfull maintainor of suits is in fault so is he in euery such case punishable For though the case of the plaintife or def which he vndertaketh to maintaine be iust and lawfull in him who prosecuteth or defendeth the suit whose the cause is yet in the maintainor it is vnlawfull for it is not his owne suit neither is it pursued or defended for the recouery or protection of that which he pretendeth to be due to himself and so in a sort he maketh complaint where he hath no wrong or maketh defence where none séeke to hurt him whereby opposing himselfe against others who do not contend with him he laboureth to disturbe the ordinary course of iustice and therewith to blemish the peace of the Realme for as it appeareth partly by the statute of Anno 1. Ed. 3. Sta. 1. E. 3. 14 and specially by the preamble of the statute of Anno 32. H. 8. St. 32. H. 8. 9 Nothing conserueth the people in more peace good concord then the due administration of iustice and the indifferent triall of titles and issues according to the Lawes of this Realme which being hindered letted by Maintenance Embracery Champertie Subornation of witnesses sinister labour and buying of titles there will of necessitie insue thereof great periurie vnquietnesse oppressions troubles wrongs and disheritances 2 And because this Maintenance is as an euill Trée hauing growne out of it many corrupt branches therefore the wisdome of the Realme hath frō time to time prouided seuerall statutes as it were sharpe hatchets to loppe or shred those boughes when they did spring and shoot out As King Ed. 3. Maintenance by men of authority perceiuing that his Counsellors Magistrates and Officers in his house certaine great men of the Realme by sending of Letters Messengers giuing of Liueries by other means did sollicite matters and maintaine quarrels and tooke parts in the Countrey St. 1. E. 3. 14 20. Ed. 3. 3. by a statute made Anno 1. of his raigne and another Anno 20. of his raigne did ordaine That common right should be done to all persons as well poore as rich and that none of his said Officers nor any Noblemen nor any other great or small should take vpon him to maintaine quarrels or to take parts to the let or disturbance of the common law Nor that any should take in hand or meddle with quarrels or questions but their owne And because there was no speciall punishment ordained by the said statute of Anno 1. Ed. 3. for those who should transgresse that Law therfore King R. 2. by a statute made in the first yeare of his raigne established St. 1. R. 2. 4. That if the kings Counsellors or great Officers should take vpon them to sustaine any quarrell by Maintenance in the Countrey or elsewhere he so offending should indure that paine which should be inflicted by the King himselfe by the aduice of the Lords of his Realme and other inferior officers and seruants of the Kings in the Exchequer and other Courts and his meniall seruants shall loose their offices and seruices and be imprisoned be ransomed at the kings pleasure euery of them according to his degrée estate and desert and all other persons of the Realme of what estate soeuer they be shal be imprisoned and ransomed as the other aforesaid St. 33. Ed. 1. 3 The statute intituled Definitio de conspiratoribus made Anno 33. E. 1. Maintenance by cōbination doth decypher another sort of Maintainors which there be called conspirators in this sort St. 1. R. 2. 7. viz. Conspirators be they that bind themselues by oath couenant or other alliance that euery of them shall helpe and sustaine the other falsely maliciously to indite or falsely to moue or maintaine pleas and also such as cause children within age to appeale men of felony whereby they are imprisoned sore grieued and such as retaine mē in the country with liueries or fées to maintaine their malicious enterprises and this extendeth aswell to the takers as to the giuers and stewards and bailifes of great lords Maintenance by noblemens officers which by their seigniorie office or power vndertake to vphold or maintaine quarrels pleas or debates that concerne other parties then such as touch the estate of their lords or themselues 4 There is also another kind of Maintenance which is called Champerty Maintenance by champerty and the offendors therin be called Champertors whom the foresaid statute of Anno 33. St. 33. Ed. 1. E. 1. doth define in this maner Who be champertors viz. Champertors be they that moue pleas and suits or cause to be moued either by their owne procurement or by others sue them at their proper costs for to haue part of the land in variance or part of the gaines which Champertors were accounted great maintainors of suits and professed enemies to peace whereupon it was ordained by the statute of West 1. St. 3. E. 1. 25. That no Officer of the Kings by themselues nor by other shall maintaine pleas suits or matters hanging in the Kings Court for Lands Tenements or other things for to haue part or profit thereof by couenant made betwéene them and he that doth shall be punished at the kings pleasure and after by the statute of Westm 2. St. 13. E. 1. 48 the same was expressed more at large by the which it was enacted That the Chauncellor Treasurer Iustices nor none of the Kings Councell no Clarke of the Chauncerie nor of the Exchequer nor of any Iustice or other Officer nor none of the Kings house Clarke nor Lay shall receiue any Church land nor tenement by gift in fée nor to farme nor for purchase nor otherwise so long as the thing is in plea in the Kings Court or before any of his Officers nor shall take reward therefore and hee that doth contrary to this Act eyther himselfe or by any other or make any bargaine shall bee punished at the Kings pleasure as well he that doth purchase as he that doth giue And because other Officers were not bound by the foresaid Statutes as well as the Kings and to the intent some certaine and more sharpe penaltie might bee imposed vpon the transgressor of the said statutes then before time had béene prouided Therefore by a statute made Anno 28. E. 1. St. 28. Ed. 1. 11. intituled Articuli super Chartas it was ordained That no Officer nor any other for to obtaine part of the thing in plea shall maintaine any matter that is in suit Nor none vpon such couenant shall giue vp his
the land or thing in variance so it is Maintenance to take part in any quarrell depending in suit in the Kings court or to worke any fraud whereby iustice may be hindered Westm 1. 3. E. 1. 28. as it appeareth by the statute of West 1. whereby it is ordained That if any Clerke of the kings or of any Iustice The penalty for maintaining of suits do receiue the presentment of any Church for the which any plea or debate is in the K. Court without the kings speciall licence he shal loose the Church and his seruice And if any Iustices or Shirifes Clerke take part in any quarrell depending in the Kings Court or doe worke any fraud whereby common right may be delayed or disturbed he shall loose his seruice and be further punished if the Trespas doe require St. 32. H. 8. 9 And after by a statute made Anno 32. H. 8. there was a greater penalty imposed vpon those who shall be maintainors of suits By which statute it was ordained That no person or persons whatsoeuer shall vnlawfully maintaine or cause or procure any vnlawfull maintenance in any action suit demaund or complaint in any of the Kings Courts of the Chauncerie Starre-chamber White hall or elsewhere within any of the K. dominions of England or Wales or the marches of the same where any person or persons haue authoritie by vertue of the K. Commission Patent or Writ to hold plea of lands or to heare examine or determine any title of lands or any matter of witnesse concerning the title right or interest of any lands tenements or hereditaments Or shall vnlawfully retaine for maintenance of any suit or plea Retaining for maintenance or imbracing or suborning of Iurors any person or persons or embrace any fréeholders or Iurors or suborne any witnesse by letters rewards promise or by any other sinister labour or meanes for to maintaine any matter or cause or to the disturbance or hinderance of iustice or to the procurement or occasion of any manner of Periurie by false verdict or otherwise in any of the Courts aforesaid vpon paine of forfeiture for euery such offence x. pounds to the king and Inf. to be recouered by him that will sue for the same in any of the kings Courts of Record by Action of Debt Bill Plaint or Information wherein no W.E.P. c. if the suit be commenced in any of the kings Courts within one yeare next after any such offence committed or els not 10 As it is Maintenance to haue by agréement part of the land in variance or part of the gaines of the suit in question so is it Maintenance to buy a pretenced right or title of another of or to lands or tenements whereof the seller hath no possession for this oft times the cause of Subornation of witnesses procurement of Periurie and of the subuersion of iustice For the redresse whereof by the last specified Statute of Anno 32. H. 8. St. 32. H. 8. 9 it was first enacted That all Statutes heretofore made concerning Maintenance Champertie and Embracerie or any of them then standing in force should be put in due execution according to the effects of the same And also by the same statute it was ouer that ordayned Maintenance by buying of pretēced titles That no person or persons of what estate degrée or condition soeuer he or they be shall bargaine buy or sell or by any meanes obtaine get or haue any pretenced rights or titles or take promise graunt or couenant to haue any right or title of any person or persons in or to any Manors Lands Tenements or other Hereditaments but if such person or persons which shall so bargaine giue graunt couenant or promise the same their auncestors or they by whom he or they claime the same haue béene in possession of the same or of the reuersion or remainder thereof or taken the rents or profites thereof by the space of one whole yeare next before the said bargaine couenant graunt or promise made vpon paine that he that shall make any such bargaine sale promise couenant or graunt shall forfeit the whole value of the Lands Tenements or Hereditaments so bargained sold promised couenanted or graunted contrary to the forme of this Act. And the buyer or taker thereof knowing the same shall also forfeit the said value of the said Landes Tenements or Hereditaments so by him bought or taken as is aforesaid the one halfe of the said forfeitures to be to the king and the other halfe to the party that will sue for the same in any of the kings Courts of Record by Action of Debt Bill P. or I. c. wherein no W. E. P. or I. c. if the suit be commenced by A. B. P. or I. in any of the kings Courts within one yeare next after any such offence committed or els not Prouided alwayes The possessor purchaseth a pretenced title That it shall be lawfull to any person or persons being in lawfull possession by taking of the yearely ferme rents or profites of any Manors Lands Tenements or Hereditaments to buy obtaine get or haue by any reasonable meanes the pretended right or title of any other person or persons to be made to of or in any such lands tenements or hereditaments whereof he shal be so in lawfull possession Any thing in this Act c. notwithstanding 22 23. El. Dyer 374. 6. Ed. 6. Dy. 74. Plow Com̄ 87. 11 If a man take a lease or promise a lease for the terme of certain yéeres to another of land contrary to the foresaid statute of Ann̄ 32. H. 8. What is selling of a pretenced title viz. of those lands whereof neither he himselfe nor any of his auncestors nor any by whō he doth clayme the same land haue béene in possession of the same nor of the reuersion nor remainder thereof nor taken the rents or profits thereof by the space of one whole yeare before the said bargaine graunt and demise made he is within the danger of the foresaid statute of Anno 32. H. 8. as well as if hée had made an estate for the terme of life in taile or in fée simple of the same lād for that the scope and effect of the statute is vtterly to root out of Maintenance and bargaines and promises of Titles for the which the words of the statute be That no person shall sell or buy any pretenced rights or titles And a lease is no more lawfull for one yeare then for an hundred yeares and some man will be as ready to maintaine to haue a lease for yeares as to haue a greater estate Wherefore he that doth make a lease for yeares or make promise of a lease for yeares of lands whereof he hath but a pretenced right or title shall forfeit to the King and him that will sue the whole value of the inheritance of the land as well as if he had bargained and sold the fée simple thereof But
Striking in Westminster Hall 27 And the same Law is Fitz. Cor. 280. M. 2. 3. P. M. Dy. 188. if one strike another in Westminster Hall during the time that the Kings Courts be sitting there and be indicted thereof this is misprision of Treason and an indignitie offered to the Magistrates and place of iustice Therefore in this case the offender shall haue iudgement to haue his right hand cut off to loose his lands and goods and to be perpetually imprisoned Reâ—scuing a prisoner arrested by a Iudge 28 If one of the Kings Iustices assigned M. 22. Ed. 3. 13. doe arrest any person which hath made a fray before him and a stranger will rescue the prisoner whereby he doth escape this is misprision of Treason and in this case as well the prisoner as he that made the rescous shall forfeit to the King his landes and goods and be imprisoned during their liues Because the attachment of such a Iustice is the Kings owne attachment in the construction of Lawe 29 Because striking in the Kings pallace or where he shall remaine in person is a kinde of disgrace offered vnto or contempt had of the maiestie of the king who is the head of the common wealth and the chiefe preseruer of peace therein and therefore it is to be accounted a great Misprision and worthy of seuere punishment wherefore for the preuention thereof Shedding of blood within the kings palace by a Statute made Anno 33. St. 33. H. 8. 12. H. 8. 12. it was established That if any person or persons shall malitiously strike any other person whereby blood shall be shedde in any of the Kings houses or Palaces or any other house wherein the king his heires or successors shall bee at that time abiding in his royall person viz. within any edifices courts places gardens orchards or houses within the Porters ward of any of the houses aboue rehearsed or within any Gardens priuie walkes orchards tilt-yards wood-yards tennice-plaies cocke-fights bowling alleyes néere adioyning to the said houses and béeing part of the same or within two hundred foot of the Standard of any outward gate or gates of any of the said houses commonly vsed for passage from any of the houses c. and shal be thereof indicted arraigned and attainted according to the forme of the said Statute he so offending shall haue his right hand cut off bee imprisoned during his life and make fine to the King at his pleasure But this Act and the paines and forfeitures before rehearsed shall not extend to any Noble man nor other person that shall strike his seruant within the said Palaces or Houses or the limits of the same with his hand or fist or any small staffe or sticke for correction for any offence committed Nor to any of the Kings officers that in execution of his office shall strike any person with his hand fist or small staffe sticke or tipstaffe Nor to any other person that in doing seruice at any triumph or any other time of seruice by the Kings or any of his Councel or other his head officers commandement shal for the execution of his said seruice strike any person with his hand fist smal staffe or stick or any tipstaffe within the same palace house c. although by reason of the same stroke or strokes there happen to bée any blood-shed of such person as shal be so stricken except the person so stricken die of the same stroke within one yeare next after And so it is to be noted by the foresaid Statute of 33. H. 8. and the foure cases next precedent that striking in the Kings Palace or House where himselfe doth make his abode is not so penall as striking or drawing a weapon to strike is where he is but represented by others in time and place of Iustice for the law doth inflict a more seuere punishment vpon him who striketh or draweth his weapon to strike in place time of execution of Iustice than it doth to him who offereth the like violence in the house and at the time where the kings owne person is remaining In which case the offendor receiueth no punishment at all for striking or drawing of his weapons to strike vnlesse blood be shed thereby Which lawes doe procéed of the great care and reuerend respect that is had of Iustice and of peace ensuing thereof 30 For as much as some doubts and questions were mooued that certaine kinds of Treasons Misprisions and concealements of Treasons committed out of this Realme could not by the common lawes of this Realme be enquired of heard and determined within this Realme of England for a plaine declaration whereof St. 35. H. 8. 2 26. H. 8. 13. 5. Ed. 6. 11. by a Statute made Anno 35. H. 8. it was enacted That all manner of offences béeing alreadie made or declared or hereafter to bee made or declared to be Treasons Misprisions of Treasons or concealements of Treasons and done perpetrated or committed by any person or persons out of this Realme of England shal be enquired of heard and determined before the Kings Iustices of his Bench for pleas to be holden before himselfe Trial of treasons committed out of the Realme by good and lawfull men of the same shire where the said Bench shall sit and bée kept or else before such Commissioners and in such shire of the Realme as shall be assigned by the Kings Commission and by good and lawfull men of the same Shire in like manner and forme to all intents as if such treasons c. had béene committed in the same shire where they shall be so inquired of heard and determined as is aforesaid And if any Péere of this Realme shall be indicted of any such Treasons c. then he shall haue his triall by his Péeres c. Which foresaid Statute of Anno 35. H. 8. remaineth in force notwithstanding the Statute of Anno 1. 2. P. M. 10. By which it is ordered h. 13. El. Dyer 298. That all Trials had awarded or made for any Treason shall bee had and vsed onely according to the course of the common lawes of this Realme and not otherwise Outlawrie of offendors in Treason beeing beyond Sea 31 By a branch of a Statute made Anno 26. H. 8. it was ordained That all Proces of Outlawrie to be made within this Realme against any offendors in Treason being resiant or inhabiting out of this Realme or beyond the Sea at the time of the Outlawrie pronounced shal be as good and effectuall in the law to all intents as if any such offendors had béene resiant within this Realme at the time of such Proces awarded Outlawrie pronounced And after by a Statute made Anno 5. E. 6. it was conditioned and prouided St. 5. E. 6. 11. That if the partie so outlawed shall within one yeare after the said Outlawrie pronounced or iudgement giuen thereupon yéeld himselfe to the chiefe Iustice
out the eyes of D. this shal be adiudged a maihem 13. H. 7. 14. for that A. had an intention at the first to do some hurt in striking at B. 60 The greatnesse or smalnes of the wound in some of the cases aforesaid doth make the difference whether it be a maihem or not Examination of a maihem which is to be examined by the Iustices of the court before whom the appeal of maihem is depending and by them to be decided if they be requested by the defendant in the appeall and will condiscend to do it And they may award the Kings writ to the shirif of the countie where the fact was done to warn two expert surgeons of that Countie 28. Ass p. 5. 28. E. 3. 94. citie or towne to appeare in the same court at a day prefixed to informe the court what they thinke of the wound and whether they conceiue it to be a maihem or not And if the wound be fresh and new and thereby hardly to be discerned 41. Ass pla 27. whether it will proue a maihem or not the Iustices néed not presently to examine it though the defendant in an appeal of maihem doth desire it or notwithstanding he doth plead that it is no maihem And if in an appeall of maihem the defendant doth plead not guilty 22. Ass pla 82. without requesting that the maihem may be examined by the court by this the defendant hath allowed that it is a maihem But if in an appeall of maihem the defendant doth pray that the maihem may be examined 21. H. 7. 40. if the Iustices and the surgeons that they will call vnto them be in doubt whether it be a maihem or not the Iustices may refuse the examination and compell the defendant to put him selfe vpon the triall of the countrie And yet in that case if the defendant do praie that the maihem may be examined 6. H. 7. 1. 22. Ass p. 99 by the court if the Iustices do adiudge it a maihem it is paremptorie to the defendant for he shall not after plead not guilty or any other plea in Barre séeing by his plea he hath allowed it to be a maihem But the court can not view the wound and examin whether it be a maihem or not 28. Ass p. 8. vnlesse the defendant in the appeal will request it and referre it to their iudgement If in an appeall of maihem the defendant doe plead not guiltie 22. Ass p. 82 without requesting that the maihem may be adiudged by the court though the Iurie who are to try the issue doe desire to sée the plaintife if he be maihemed or not the plaintife néed not to shew his wound for by pleading not guilty the defendant hath allowed that it is a maihem though he hath estraunged himselfe from the committing thereof 9. H. 4. 2. 61 If seuerall men do at one time assault one man and one of them doth maihem him in one part of his body Diuers appels of maihē for one offence and an other in an other part he may haue seuerall appeals of Maihem against them for that they be seuerall maihems which he hath receiued And yet if seuerall men do murder or otherwise kill a man there may be but one appeall of murder maintained against them all for that a man can haue but one death 40. Ass p. 1. But if a man sue an appeall of maihem against seuerall persons whereof against some as principals and some others as accessories and after apparance he is nonsuit he can not pursue an other appeall of maihem against the same persons and charge those as accessories which before he had named principals nor those principals who before were suggested to be accessories Principal and accessorie in maihem 62 In an appeall of maihem the plaintife may choose to make all principals or els to make him principall that did first strike him 40. Ass p. 9. 41. Ass pla 16. and the residue accessorie The Law was holden in auncient time that the plaintife in an appeall of maihem must haue declared against all the defendants as principals But now he may choose and make some principals and some accessories for an appeall of maihem is in effect but an action of Trespas wherein the plaintife shall recouer damages Maihem is a Trespas The iudgem̄t in appeall of maihem according to the quality quantitie of the offence and the defendant shall be imprisoned 8. H. 4. 2 1. And if the plaintife do bring an appeal of maihem whereas it doth appeare to the court that by the blow which was giuen him he is not maihemed he shall paie a fine Mainprise in an appeall of maihem 63 In an appeall of maihem if it do appeare to the court that the maihem is very apparant gréeuous bloudy and extreame 6. H. 7. 1. as if a mans legs or armes be broken or that the partie maihemed is in great perill of death the defendant shall not be let to mainprise no more then he should be in an appeall of murder or burglarie But if the maihem be not apparant or that it is doubtfull and questionable whether it be a maihem or not then the defendant in an appeall of maihem may be let to mainprise And that also appeareth by the statute intituled officium Coronatoris whereby it is ordained Stat. 3. E. 1. that vpon an appeall of maihem if the wounds be mortall they which be appealled shal forthwith be apprehended and kept vntill it be knowen whether he that is hurt shall recouer or not if he die they shall be retained if he liue they shall be attached by foure or sixe pledges according to the bignesse of the wound if it be for a maihem then there shall be no lesse then foure pledges if a small wound two will serue 64 In an appeall of maihem the plaintife doth declare that the defendant did maihem him felonice vt felo domini Regis Why maihem is supposed to be done felomously 40. Ass pla 40. 6. H. 7. 1. and so it may be called felony as petit Larcenie is called felony or it may be termed felony for that the blow which caused the maihem may be a meane of his death within the yeare and day after the stroke stricken and then it will be felony or for that he which did giue the blow had then a murdring mynd and so a felonious intent 65 It is a good plea in barre in an appeall of maihem for the defendant to plead Barres in appeall of maihem that the plaintife at the place aforesaid Li. intur f. 45. and at the day and yeare aforesaid did make assault vpon the defendant and would haue beaten and killed him vnlesse the defendant had then and there quickly defended himselfe against the plaintife and so the hurt and dammage if any were that then and there did come
lands hath béen made or after the same lands be holden with force he is either himselfe to reseise the same lands and put the partie in possession againe who was so forciblie expelled or kept out of possession or else he is to make his Precept to the Shirife of the same Countie to make restitution to the same partie The forme of which warrant or precept is this viz. Georgius Throckmorton Miles Buck. A warrant to the Shirife to make restitution vnus Iusticiariorum dnÌ„i Regis ad pacem in dicto Comitatu conseruandam assignatorum VicecomÌ„ eiusdem Comitatur salutem Cum per quandam Inquisitionem patriae coram me captum apud East-Claydon in Comitatu pÌ„dicto 2. die Dec. Anno regni dnÌ„i nostri Iacobi quarto suê‘ sacrÌ„m A. B. C. D. E. F. c. ac per formam statuti in hmÌ„odi casu ê“uisi compertuÌ„ fuerit qd ' L. M. de Horwood magna in ComÌ„pÌ„dict ' husb alij malefactores pacis dicti dnÌ„i Regis perturbatores 26. die No. anÌ„ dicti dnÌ„i Regis nunc quarto in quoddam messuagiuÌ„ c. N. T. in East-Claydon pÌ„dicta vi armis ingressi fuerunt ac ipsum N. T. inde expulerunt pÌ„dictuÌ„ mesuagiuÌ„ c. a pÌ„dicto 26. die c. vsque ad dictuÌ„ secunduÌ„ diem Decemb. manu forti cum potentia tenuerunt ê“ut per InquisitioneÌ„pÌ„dictam plenius liquet de recordo Ideo ex parte dicti dnÌ„i Regis tibi mando precipio quod ad hoc debitur requisitus vna cum posse Comitatur tui si necesse fuerit accedas ad mesuagiuÌ„ caetera praemissa ac eadeÌ„ cum ê‘tinentijs reseisiri facias pÌ„fatuÌ„ N. T. ad in plenam possessioneÌ„ suam inde ê“ut ipse ante ingressuÌ„pÌ„dictuÌ„ fuerat restituas mitti facias iuxta formaÌ„ dicti statuti de Ingressibus manu forti factis aediti ê“uisi Et hoc nullatenus omittas sub ê‘iculo incumbentur Teste me pÌ„fato G. Throckmorton Datum apud Fulbrooke c. tertio die Decembris c. 7. Ed. 4. 18. 4. H. 7. 18. 15. H. 7. 5. 10 If a man be indited before the Iustices of peace in the County Restitution awarded out of the K. bench for that he did with force expell and put another out of his possession of certaine lands within the same County and after this indictment is remoued into the kings bench by a Certiorari the Iustices of the same court may award a writ of Restitution to the shirife of the same County to restore possession to the party so expelled though the words of the statute of 8. H. 6. doe giue that authority only to the Iustices of peace of the County where the forcible entry is made and if he be indited before Iustices to heare determine and after the record is remoued into the K. Bench the Iustices of the same court may award restitution for that they who haue supreme authority and do represent the K. person now haue before them the record whereby the party was indited 11 By the words of the foresaid statute of 8. H. 6. it doth appeare No restitutioÌ„ but where the force is found by inguisition that one Iustice of peace alone may remoue the force 21. H. 6. 5. and also enquire thereof so may diuers Iustices But by the aforesaid statute no restitution can be made to the party put out of possession if the said expelling or putting out of possession be not found by inquisition nor but in case where the words of the Indictment vpon the statute of 8. 14. H. 6. 16. H. 6. be adhuc extratenet 12 In the foresaid statute of 8. H. 6. there is a prouiso That they which kéepe their possessions by force in any lands and tenements whereof they or their auncestors or they whose estate they haue in such lands or tenements haue continued their possession by the space of three yeares or more be not endammaged by the force of the said statute And by one other statute made Anno 31. St. 31. El. 11. Eliz. for the explanation and declaration of the meaning and intent of the said prouiso and of the law therein it was ordained declared and enacted That no restitution vpon any indictment of Forcible entry Where no restitutioÌ„ against thrée yeares possession or holding with force shal be made to any person or persons if the person or persons so indited hath had the occupation or hath béene in quiet possession by the space of thrée whole yeares together next before the day of such indictment so found his her or their estate or estates therein not ended nor determined which the party indited shall and may alledge for stay of restitution and restitution to stay vntill that be tried if the other will deny or trauerse the same And if the same allegation be tried against the same person or persons so indited then the same person or persons so indited to pay such costs damages to the other party as shal be assessed by the Iudges or Iustices before whom the same shal be tried the same costs and dammages to be recouered and leuied as is vsuall for costs and dammages contained in iudgements vpon other actions If a man hath béene in quiet and peaceable possession of lands thrée yéeres or more by a good title 4. 5. P. M Dy. 141. and then is expelled and disseised of them and the party offending is therefore indited vpon the statute of 8. H. 6. and the disseisée who was expelled is restored to his possession by a writ of Restitution and is in possession accordingly in this case he cannot iustifie the detainer of the possession of those lands by force of the foresaid prouiso contained in the statute of 8. H. 6. because his possession was interrupted discontinued for that possession must be thrée whole yéeres together without interruption before the said party may by the said prouiso kéepe his possession by force And likewise if he that is a iust and lawfull possessor of lands by the space of twenty yéeres together 3. 4. P. M. Dy. 141. be once clearely wholly remoued from the possession of the same land he cannot come againe with force and a multitude of people to put himselfe in possession therof and detaine the same with force by vertue of the prouiso in the said statute of 8. H. 6. because his possession was interrupted Neither in this case if he be indited of a Forcible entry according to the statute of 8. H. 6. shall he be relieued touching his restitution by the foresaid statute of 31. El. for that he had not the occupation nor had béene in quiet possession by the space of thrée whole yeares together of the same lands next before the day of such indictmeÌ„t found But if a man be seised of a lawfull possession by the space of thrée yéeres of any
land without interruption 22. H. 6. 18. Fitz. Na. B. 249. he may kéepe his possession by force against all others And he is neither to be remoued from his possession by a Iust of peace though it be found by inquisition that he held that land by force nor yet by an action of Forcible entry brought against him vpon the said statute of 8. H. 6. Otherwise it is of a disseisor where restitution notwithstanding three yeares possession or of a man that commeth to land by a wrongful and vnlawfull title for if he hath detained the land by force thrée yeares 14. H. 7. 28. or twenty yeares he may be indited by vertue of the statute of 8. H. 6. before a Iustice of peace of forcible detaining of the same land and that being found the said Iustice of peace is to reseise the land and to award restitution to the party disseised or expelled thereof And also the same disseisor shall make fine and ransome to the King cui nullum tempus occurrit whose peace is brokeÌ„ by this long and vnlawfull detaining of the possession of another mans land by force But the party disseised expelled or kept out of possession cannot in this case maintaine an action of Forcible entry vpon the said statute of 8. H. 6. against the said disseisor séeing he hath omitted his time suffered the disseisor to gaine of him thrée yeares possession therby the benefit of the same prouiso contained in the said statute of 8. H. 6. 13 If a man who hath made an Entry vpon the possession of another of any lands or tenements by force or doth hold lands by force 1. R. 3. 4. after a peaceably entry made doe doubt that he shal be thereof indited before a Iustice of peace vpon the statute of 8. H. 6. and that restitution will be thereupon awarded he may haue a Certiorari out of the Kings Bench ready and when the Bill of Indictment is found he may presently deliuer it to the court and that shal be a Supersedeas to stay Restitution A Supersedeas to stay restitution for that by this Certiorari the indictment shal be remoued And though the indictment be found after the Teste of the writ of Certiorari it is not materiall for they be both the Kings Courts And when an indictment vpon the said statute of 8. H. 6. 2. 3. P. M. Dy. 122. is remoued into the kings Bench and that the party indited doth tender to trauerse the same the Iustices of the same Bench may graunt or stay restitution at their discretion according as the truth of the Title shall appeare to them But if a speciall sessions be procured to inquire of a Forcible entry or detaining of possession according to the said statute of 8. H. 6. and the Iustices to whom complaint is made do repaire to the place supposed to be entred vpon or holden with force 2. 3. P. M. Dy. 187. and doe sée the same according to the said statute after they do inquire thereof and that is found and thereupon they graunt restitution no other Iustice of peace can graunt a Supersedeas to stay the same restitution for by the said statute no other Iustice hath authority to graunt restitution but he or they to whom the complaint is made and before whom the force is found the writ shal be graunted vnder the Teste of one of them onely sauing the Iustices of the K. Bench who haue supreme authority and where the law doth intend that the King himselfe doth sit 14 Whereas the words of the foresaid statute of 8. H. 6. be Sta. 8. H. 6. 9. If it be found before any of the Iustices or Iustice of peace that any doth contrary to this statute viz. enter vpon or hold lands with force then the said Iustices or Iustice shall cause the lands or tenements so entred or holden to be reseised and shall put the party so put out in full possession of the same landes or tenements so entred or holden as before they were entred or holden And therefore if the father be put out of possession of lands by force and dieth before or after inquisition thereof his heire shall not haue restitution thereof vpon the said statute of 8. H. 6. for that he was not the same person which was put out And the same Law is if after the death of the father Where force found and no restitution dying seised of certaine lands a stranger doth abate and holdeth the same lands by force against his heire before he had gotten any possession indéed and that force is found before a Iustice of peace by an inquisition the same heire shall not haue restitution by the words of the said statute for that the same heire had but a possession in law and was not in actuall possession of that land neither is hée that party who was put out And so it is if tenant for terme of yéeres of certaine lands be put out of his terme by force and die though after his death the force he fâ—und by inquisition taken by a Iustice of peace his executors shall not be restored to the possession of that land by the same Iustice of peace causa qua supra But yet in the cases aforesaid the offendor shall be punished by imprisonment fine to the K. for by his forcible entry he hath broken the peace St. 15. R. 2. 2. 15 Whereas by the before rehearsed statute of 15. Rich. 2. it is ordayned That when any forcible entry shal be made into lands and complaint thereof come to a Iustice of peace he shall go to the place where the entry was made and if he find any that hold any such place forcibly after such entry made they shal be taken and put into the Gaole c. The forme of which Iustice of peace Mittimus whereby he shall send the same offendors to the Gaole is this viz. Francis Fortescue knight Buck. A Mittimus to send to the gaole such as do hold land by force one of the Iustices of peace of our Soueraigne Lord the King within the county of Buckingham to the keeper of his Ma. Gaole in Aylesbury in the said county and to his deputie and deputies there and to euery of them greeting Vpon complaint made to me by A. B. of Whaddon in the said county husbandman that C. D. E. F. of S. in the said county labourers and other malefactors and disturbers of the Kings peace had forcibly and with strong hand entred into his house c. in Whaddon aforesaid and him expulsed the same yet held with force I went this present day to the said house and there found the said C. D. E. F. holding the said house c. with swords and bucklers bils and staues to the great disturbance of his Ma. peace and against the forme of the said statute in that behalfe ordained And therefore I send you
21. H. 7. 39. As In what cases any pâ—rson may deâ—end himselfe and his by force if theeues or robbers do come to a mans house to rob or murther him he may defend his house by force and if he or his seruants do kill any of them they shall receiue no hurt thereby And if a man being in his house doe heare that another will come to his house to beat him he may lawfully assemble his neighbors and friends to assist and aid him in the defence of his person for his house is his castle and place of protection defence where he must dwell But if a man be threatened â—hat if he come to such a Market or Fayre or to such a place that then he shall be beaten in this case he may not assemble his neighbours and friends to go thither in safegard of his person for there is no necessitie that he should go thither seeing it would rather be a meane to seeke a quarrell then to eschew it but in that case he may take his remedy by surety of peace 16. Ed. 4. 17. 9. E. 4. 28. 19. H. 6. 31. 6. H. 7. 1. And if there be an atteÌ„pt made to maihem wound or beat a man his wife father mother or any of his children within age or to disseise him of his land or to dispossesse him of his goods or to disturbe him of his high way or to turne an ancient watercourse from his mill he may lawfully vse force to resist it 34 As the law hath prouided by the before rehearsed statute of 15. R. 2. St. 15. R. 2. 2. that wheÌ„ any forcible entry shal be made into any benefices or offices of the church a Iustice of peace shall take the power of the county and commit the offendors to the gaole So hath it further deuised that if there be debate betwéene two persons for one church and one of them doth enter into the church with a great power of lay men and holdeth out the other by force and armes then he which is holden out The writ of Vi laica remouenda to remoue force shall haue a writ of Vi laica remouenda directed to the Shirife commaunding him that he shal remoue the power which is within the church and the shirife shal be further commaunded that if he doe find any that doe resist he shall take with him the power of the county and attach the bodies of all the resisters and commit them to prison so that he may haue their bodies before the King at a certaine day to answer for their contempt Fitz. Na. B. 55. But by this writ the Shirife ought not to remoue the Incumbent who is in possession of the church be he in possession by right or wrong but only to remoue the force and to suffer the Incumbent to inioy his possession for if he do remoue the Incumbent the same Incumbent shall haue a writ to the Shirife to restore him to it againe Where force shal be remoued for the K. incumbent where not 35 If the King do bring a Quare impedit against the disturber and the Incumbent and the Kings title is found for him Br. force 20 whereupon his clarke is instituted by writ and after the first Incumbent doth enter by force great number of people and doth take the profits the Kings Incumbent shall not haue the Kings writ to the Shirife to remoue the force for that when the iudgemeÌ„t giuen by the court is executed the court hath no more power to deale in that cause But if the defendant had disturbed the Bishop to admit the Kings Incumbent then he should haue had such a writ ⧠Forgerie 1 HAuing vndertaken to write of the great and generall maladies of the Realme and the chiefe impediments of the iustice and peace of the kingdome I shall not farre digresse from my theame by treating of Forgerie Periury Maintenance Deceit Extortion and Oppression wherein though a man be not assaulted by the rapier and dagger pike-staffe or bilbow-blade as he is in a fray forcible entrie or riot yet a forged déed that conueyeth his land from him a false othe which depriueth him of his lease or vnlawfull mantenance that wresteth his credit or goods from him do longer disturbe the peace of his mind stick in his stomacke and infixeth a déeper and more durable impression of sorrow into his heart than a boxe on the eare a dust in the necke or a blow with a cudgell giuen on the sodaine will doe For the griefe of these later stripes is short and doe weare out of mans mind by little and little as his choller ceaseth and his hot bloud cooleth but the discontent and the wants which he receiueth of the former blowes doe continue with him and yéeld him most dislike when he is most patient and best aduised And therefore the wisedome of this Realme hath from age to age taken great care by lawes and statutes to represse them and to inflict vpon the offendors in euerie of them penalties correspondent to their deserts Our lawes doe chastise those that breake the peace by frayes assaults batteries riots or routs with imprisonment of their bodies vntill their hot blouds be cooled and their distemperat humors be qualified but they doe impose sharper and more durable punishments vpon such as doe forge déeds commit or procure periurie Forgerie periurie maintenance do ten 5 to the breach of the peace or bee maintainers of other mens suits or quarels accounting these last offences to tend more and for a longer time to the breach or blemish of the peace or hinderance of the iustice of the Realme than the former doe As hee that committeth forgerie in some cases shall bée set vpon the pillorie loose his eares haue his nostrels slit and pay to the partie grieued his double costs and dammages And in some other cases shall be hanged as a felon He that committeth periurie shall in some cases be one yeare imprisoned be set vpon the pillorie and neuer after be allowed as a witnesse And hee that maintaineth other mens suites shall in some cases be thrée yeres imprisoned and further punished at the kings pleasure And in some other cases sustaine other disgraces And therefore the preamble of the statute of anno 1. St. 1. H. 5. 3. H. 5. doth truely informe vs that forged déeds do trouble and change the lands of good people intending to be in peace And the statute of anno 32. St. 32. H. 8. 9 H. 8. doth teach vs that the suborning of witnesse for to maintain any matter or cause is to the disturbaÌ„ce or hinderance of iustice The enormity of Forgerie 2 The forging of false sealed Déeds Euidences or Writings or of Court Rols or of the will of any person or of any Obligation Bill obligatorie Release or other discharge or the pronouncing publishing or giuing in euidence of the same wherby any person shal be molested troubled charged
of their office or occupation Nor to any Liueries or Badges giuen in the defence of the King and his Realme Nor to the Constable or Marshal for giuing any Badge Liuerie or token for any feats of armes to bee done within this Realme Nor of any Wardens of the Marches toward Scotland for any Badge Liuerie or token by thē giuen frō Trent Northward at such time onely as shall be necessarie to leuie people for the defence of the Marches St. 7. H. 4. 14 And by the stat of anno 7. H. 4. it was ordained That no congregation or companie shall make any Liuerie of cloth or of hats at their owne costs vpon paine that euerie of the same congregation or companie shall forfeit fortie shillings except Guilds and Fraternities and also people of Artes and Sciences within Cities and Boroughes which be ordained to a good intent 13 As the wisedome of the Realme hath established from one age to another the foresaid lawes and statutes Publishing inquiring of and punishing of maintenāce for the repressing or snibbing of Champertie Embracerie buying of titles and all other sorts of Maintenance so hath she prouided trumpets to sound out and publish those laws into the ears and sinke them into the hearts of all people and secondly shee hath assigned watchmen and sentinels to sée who infringed those lawes and lastly she hath ordained Censors and Iudges to punish the offendors therein as it appeareth by the before specified statute of anno 32. St. 32 H. 8. 9 H. 8. wherby it is enacted That the Iustices of Assise shall in euerie Countie within their circuits two times in the yeare viz. in the time of their sittings for taking of Assises or deliuerie of the Gaoles cause open proclamation to be made as well of the said statute and euerie thing therin contained as also of all other statutes heretofore made against vnlawfull maintenance champertie embracerie or vnlawfull retayners to the intent that no person hearing the same should be ignorant or misconisant of the dammages and penalties therein contained And by the former rehearsed statute of anno 8. St. 8. Ed. 4. 2 E. 4. it is ordained That euerie person which will sue against any other for any offence committed contrarie to that statute or any other of the premisses viz. any other ordinance or statute before that time made against any persons for giuing or receiuing of Liueries or Badges before the Kings Iustices in his Bench before the Iustices of the Common Pleas Iustices of peace in their Sessions Iustices of Oier and Terminer and Gaole deliuerie Iustices of the countie Palantine of Lancaster and Chester and in the Court of Hexamshire and in the Court of the Bishop of Durham in the Countie Palatine of Durham shall be admitted thereunto by the discretion of the said Iudges to giue information for the king of any of the premisses committed within the iurisdiction of the same Courts And euerie Informer shall be admitted to sue for the King and himselfe action or actions vpon the same by information in any of the said Courts against as many such offendors in one Bill of Information as liketh him which Information shall be in stead of a Bill or originall writ wherein such Proces shall bee awarded as in an originall writ of Trespasse but that in the Counties Palantine of Lancaster and Chester nor in Duresme no Exigent shall be awarded vpon any information suit or proces to be made by force of this ordinance And if any be or any Outlawrie thereupon pronounced the same shal be void without any writ of Error And if any of the offendors be present in any of the said courts any of the Iustices may cōmaund him to be brought to answer to such bill vpon such information by an othe first to be taken vpon a booke by such informer before some one of the Iudges that his complaint is true without any other or further proces therein And euerie of the same Iudges within his iurisdiction may by his discretion examine euerie of the defendants vpon such information and iudge him conuict as well by examination as by triall and the King shal haue the one halfe of the forfeiture if it be not in a citie or towne corporat that hath the same by the grant of the king or c. and the informer the other halfe which also shall recouer his costs by the Iudges discretion and execution thereof as in recoueries vpon debt or trespas wherin no Essoine or Protection shall lye And the Maior Sherife Bailife or other chiefe officer of euerie citie borough towne or port within this realm hauing power to heare and determine personall pleas in the court holden before them or any of them within any such towne haue authoritie to receiue information of any person which offends in the premisses and to heare determine as wel by examination as by triall all things done concerning the same by or to the inhabitants within the iurisdictiō of the same court to put this stat for those offences prouided in execution And the King shal haue the one moitie of all penalties forfeited by the said stat and the Informer chiefe officers of such citie borough c. shall haue the other moitie equally to be diuided betwixt them And the said chiefe officers part shal be imployed to the vse the said citie borough towne or port c. And sithence the foresaid lawes statutes by one other stat ordayned an 33. Iust of peace may inquire of and punish maintenance H. 8. and confirmed an 37. H. 8. it was enacted St. 33. H. 8. 10. 37. H. 8. 7. That Iust of peace at their Quarter Sessions shal haue authoritie to inquire as wel by the othes of xij men as by information giuen to them by any person or persons of defaults contempts offences cōmitted against the lawes statutes made and prouided concerning or in any wise touching retainers giuing of liueries signs tokens or badges maintenance embracerie c. and euery of them to heare determine the said defaults offences c. And vpon any information touching the penalties or any of them to make proces by Venire fac ' one Capias an Exigēt vnder their seals against euery such person persons against whom such information or presentment shal be had for their apparance before them in their Sessions to answer to such information or presentment as shall be there made And if the person or persons so accused by information or presentment shal be conuicted vpon such information or c. by confession or verdit of xx men then the said Iust haue power to giue iudgemēt against euery such offendor so conuicted of imprisonment forfeiture of money or both of them as are limited by the said seuerall statutes for such offences whereof they are conuict and to cause execution therof to be made accordingly Why the pursuing of maintenance is left out
heices c. the other moitie to the party grieued which will sue for the same at any time during the said suit or within one yeare after the same cause discontinued or decréed and in his default of such suit to him or them that will sue for the same by originall writ B. P. or I. in the Kings Court of Starre-chamber or in any of his Courts of Record at Westminster in which suit by B. P. or I. no W. E. P. S. P. or any other delay shall be admitted The Clerkes duty Prouided neuerthelesse That it shal be lawfull for the Clerke to take for his paines for writing of euery such report or certificat twelue pence for the first side and two pence for euery side after and no more vpon paine to forfeit tenne shillings for euery penny taken ouer and aboue the said summes to be had and recouered as aforesaid Extortion in the shirife coroner other officers 3 For that the kings of this Realme haue allowed to their Officers from time to time sufficient Salaries to maintaine them according to their estates and degrées to the intent that they should not otherwise extort any thing from their subiects but such fées duties as the auncient customes laws or statutes of the realme did allow them Therfore by the statute of West 1. it was ordained That if any shirife coroner St. 3. E. 1. 26 or other officer of the kings do take any thing to execute his office but only that which the king alloweth him he shal render double to the party and shal be punished at the kings pleasure St. 3. E. 1. 29 4 To preuent extortion in certaine Officers of the Iudges Extortion in a Serieant Crier or Marshall of a Iudge by the same stat of West 1. it was enacted That if the Serient Crier or Marshall of any Iustice do wrongfully take mony of any which doth recouer land obtaine his suit leuie a fine or prosecute any suit touching any plea of the Crowne he shal be punished at the kings pleasure and yéeld treble damages to the party grieued And if hée be a Serieant of fée his Office shal be seised into the K. hands But in an attaint 29. Ass p. 13 if the plaintife be nonsuit euery of the petit Iurie shall pay xij d. to the Marshall and be discharged 5 To eschew extortion which in some cases before had béen committed by some Coroners St. 1. E. 1. 10. St. 1. H. 8. 7 first by the stat of anno 3. E. 1. Extortion in a Coroner and after that by the stat of anno 1. H. 8. it was established That a Coroner vpon request made to him to come and inquire vpon the view of any person slaine drowned or otherwise dead by misaduenture the same Coroner shall doe his office diligently vpon the view of the bodie of euerie such person or persons without taking any thing therefore vpon paine to euery Coroner that will not endeuor himselfe to doe his Office as is aforesaid or that hée taketh any thing for dooing of his Office vpon euerie person dead by misaduenture for euerie time fortie shillings 27. Ass p. 14 And vpon the said statute of Anno 3. Ed. 1. two Coroners were indicted of Extortion for that they had taken of some of the K. people halfe a mark at seuerall times contrarie to the foresaid stat and their othes and therefore they paid a fine to the King 6 Because the Sherife of euerie Countie is a great and necessarie Officer in the Commonweale and vsed as a speciall instrument to the furtherance of iustice in all suits pursued at the common law and his seruice is imployed in the beginning prosecuting and ending of the most of them therefore as the law hath alwayes had a speciall regard of him and foreséene that he shall be a man of wisedome of worth of credit countenance and ability and that he shall be allowed a conuenient stipend and salary for his pains in most cases so doth she carrie a vigilant and watchfull eye vpon him and his inferiour Officers or Substitutes knowing what grieuous oppressions might ensue if she should leaue a man of his authoritie and necessarie imployment at libertie to diue at his pleasure into other mens purses and to take what hee would and therefore she hath restrained him his Vndersherife Bailife of Franchise and other Bailife within certaine lists and assigned them what they shall take for Arrests Attachements Mainprises letting to Baile and seruing of Executions which if any of them do cxcéed he shall forfeit the penalties hereafter expressed and be adiudged an extortioner Extortion in Sherifes Vndersherifs Bailifes As appeareth by the stat of An. 23. St. 23. H. 6. 10. H. 6. whereby it was ordained That no Sherife Vndersherife Bailife of Franchise nor any other Bailif by occasion or vnder colour of his Office shall take any other thing by themselues or by any other person to their vse or to their profit of any person by any of them arrested or attached nor of any other for them for the omitting of any arrest or attachement to bée made by their bodies or of any person by any of them by force or colour of their office arrested or attached for fine fée mainprise letting to bayle or for shewing any ease or fauour to any such person so arrested The fées of the Sherife for arrests c. for their reward or profit but such as followeth viz. The Sherife xx d the Bailife which maketh the arrest or attachement iiij d. the Gaoler if the prisoner be cōmitted to his ward iiij The Sherifes duetie for the making of a copie of a Panel d. The Sherife Vndersherife Sherifes Clerke Steward or Bailif of Franchise seruant to the Bailife or Coroner shall not take by colour of his office by himselfe nor by any other person to his vse any thing of any person for making of any returne or panell and for the copie of a panell iiij d. No Sherife nor none of the officers aforesaid shall take or cause to be taken or made any obligation by colour of their office but onely to themselues of any person nor by any person which shall be in their ward by course of the law but in the name of their office and vpon condition written that the said prisoners shall appeare at the day of the said writs bils or warrants and in such places as the said writs bils or warrants shall require And if any of the said Sherifes or other officers aforesaid take any Obligation in any other forme by colour of their offices it shall be void And he shall take no more for making of any such obligation The Sherifes c. forfeiture for extortion warrant or precept by him to be made but iiij d. And all Sherifes Vndersherifes Clerks Bailifes Gaolers Coroners Stewards Bailifes of Franchises or any other Officers or Ministers which doe contrarie to
4. 23. by a Statute made Anno 2. H. 4. it was declared That the said Marshall may take the fees héereafter following viz. of euery person which commeth by Capias to the said Court iiij d and if he be let to mainprise vntill his day ij d more And of euery person being defendant which is impleaded of Trespas and findeth two Mampernors to keepe his day vntill the end of the plea ij d. And of euery person committed to prison by iudgement of the steward in whatsoeuer maner the same be iiij d and of euery ptrson deliuered of felony iiij d and of euery felon let to mainprise by the Court iiij d. But if the Marshall or any of his officers vnder him doe take any other fées than are before declared the said Marshall and euery of his officers shall lose their offices A Seruitor of bills in the Marshals Court. and also pay to the partie gréeued treble dammages for the which the said party shall haue his sute before the Steward of the said Court for the time being A seruitor of bills which beareth a staffe of the Court shall take for euery mile from the said Court vntil the same place where he shall do his seruice j. d and for xij miles xij d to serue a Venire facias or a Distringas out of the same court the double And if any Seruitor of Bills do the contrary he shall be imprisoned and make fine to the K. after the discretion of the Steward of the same court and also be foreiudged and banished the same court All which articles the steward at his comming into the country hath authoritie to proclaime and put in execution 21 And for that the kings of this realme haue from time to time bestowed vpon such as they assigned to be muster masters or captains in times of wars liberall and bountifull stipends and allowances the rather to the intent they should not exact or make a pray of such as should be or then were souldiers Therfore to preuent such like exaction by a statute made An̄ 4. 5. St. 4. 5. P. M. 3. P. M. it was ordained Muster masters exacting mony to spare souldiers That if any person which shall be commanded by the Q. her heirs or successors by commission leters or otherwise authorized to leuy muster or to make men to serue in her warres or otherwise for the defence of this Realme do by any meane exact leuie receiue or take or cause to be taken any mony or other reward or thing whatsoeuer of any persō for seruice in wars or that shal be appointed named or mustred to serue in any such seruice or for the sparing or discharging of such person from the said seruice then he shall forfeit ten times so much as he shall receiue exact or take to the Q. I. to be recouered by A.I. c. wherein no W.E.P. If any captaine petit captaine or other hauing charge of men shall for any aduantage or gaine by him to be receiued discharge or licence any of the men or souldiers appointed to serue in the warres vnder his rule or order to depart from the said seruice or shal not pay vnto his souldiers Exacting by captaines of their souldiers to euery of thē their full whole wages conduct and coat mony within x. daies next after he shal haue receiued the same then the party offending in giuing such licence or discharge shall forfeit for euery such offence x. times the value of the thing so receiued to the Q. I. to be recouered by A. I. wherin no W.E.P. c. And also he shal pay vnto euery such souldier from whom he shall with-hold any such wages conduct or coat money treble the summe so with-holden Extortion by taking of scauage of merchants 22 Because Scauage otherwise called Shewage was many times wrōgfully and extortiously taken by Magistrates of cities and corporat townes of merchants that transported or brought their marchandizes thither therefore by a statute made Anno 19. H. 7. it was prouided That if any maior shirife St. 19. H. 7. 8 bailife or other officer in any city borough or towne within this realme doe distraine take or leuie any custome called Scauage or Shewage of any merchant denizen or of any other the K. subiects denizens for any merchandize to the K. before truly customed that is brought by land or water to be vttered in any citie borough or towne in this land or if any maior shirife bailife or other officer in any city borough or towne for non paiment of the said scauage let or disturbe any merchants or any other persons denizens to sel and vtter their merchandize by them brought into any city borough or towne then he which offendeth shal forfet for euery offence xx l. to the K. the party grieued or any other that wil first sue by A. of debt in any shire wherein no W.E.P. shal be allowed But the maior shirifes cōmunalty of London and euery of them shall haue such summes of mony for scauage of euery person denizen as of right they ought to haue 23 Euery of the chiefe Iustices of the Kings Bench and Common Pleas and the maior of the Staple at Westminster and the Recorder of the Citie of London before whom any obligation being of the nature and force of a statute Staple shall be recognized St. 23. H. 8. 6 according to the statute of An̄ 23. H. 8. The Iustices Clarks fee vpon euery Recognisance shal take for euery such Recognisance iij. s̄ iiij d the clarke that shall write make and inroll the same iij. s̄ iiij d and for the certificat of euery one such obligation xx d. And if any of the said Iustices Maior Recorder or Clarke take of any of the K. subiects aboue the summe or summes to them limited by this statute then the same offendor shal forfeit for euery time so offending xl l. to the K. and I. to be recouered by A. I. wherein no W.E.P. c. And by the Stat. of An̄ 27. St. 27. Eli. 4. Eli. it was further ordained That no Clarke of the same Recognisances shall or may take for or in respect of any search to be made for or concerning any statute Merchant or of the Staple The Clarkes fée for search brought vnto him to be entred aboue ij d for one yéers search so after the rate of ij d for euery yéere not aboue vpon paine to forfeit lose to the partie or parties grieued twentie times as much as he shal take contrary to the true meaning of this Act to be recouered in any of the K. courts of Record by action of debt B. P. I. wherein no W.E.P. 24 Because it is well perceiued that learned and expert Atturnies be necessarie members in our State and great meanes to further iustice and to bring sutes to their expected ends and that they must therefore
person so taking or contracting or agréeing to take or haue any thing for the same shall forfeit double the summe of money or value of the thing so receiued and taken or agréed to be receiued or taken And euery person by whom or for whom any money gift or reward as aforesaid shal be giuen or agréed to be paid shal be vncapable of that place or roome for that time or turne shall not be nor had nor taken to be a lawfull fellow scholler or officer of any the churches colledges halls hospitals schooles or societies or to haue such room 〈◊〉 place there But they to whom it shall appertaine at any time thereafter 〈◊〉 and may elect choose present and nominate any other person fit to be elected presented or nominated into the said roome or fellowship as if the said person by or for whom any such money gift or reward shall be giuen or agréed to bée paid were dead or had resigned and left the same And to the intent that euery person that is or may be subiect to the said penalties may take notice thereof This Stat. shall be read at euery election by the said statute it was also ordained That at euery election of fellowes schollers and officers this Act and the Statutes of the same places concerning such election shal be publikely read vpon paine that euery person in whom the default shal be shal forfeit xl l to him that will sue and to the same colledge societie c. Extortion by gathering others money 36 If any person doe leuie and receiue money of certaine other persons 27. Ass p. 15 which they ought to pay in discharge of a fiftéene due by a towne to the king and he doth not pay the same money to the king he may be indited of extortion and the matter beeing found accordingly the offendor shall be distrained to pay the same money to the people of the said towne toward their discharge of the said fiftéene 48. Ed. 3. 8. 37 If a man be amerced in a Court Baron for a trespasse done to the Lord of the Manor and the amerciament is affâ—ired in the Lords court Extortion for amerciament in a court baron this is extortion in the Lord But if the Lord doe accept the amerciament that is a sufficient satisfaction for the trespasse and a good barre in an action of trespasse brought by the Lord against the offendor 38 But though extortion and exaction be prohibited by the lawes Stat. before specified as things offensiue to the lawes and iustice of the Realm No extortion to take lawful fees yet the same law doth allow to each officer and other person to haue a reasonable consideration and satisfaction for his paines according to his countenance degrée and calling and the paines and seruice which he shall doe and imploy in the furtherance or execution of iustice 34. H. 6. 38. 8. Ed. 4. 18. as the L. Chancellor and they which write to the great seale are not to make writs without their fées and if a prisoner be discharged of his imprisomnent by the court paying his fées the Marshall of the Kings Bench the Sherife of the countie nor any Gaoler or keeper of prison ought to detaine him in prison for meat drinke or other thing which he hath bought but for his fées onely But if a man be committed to prison for suspitioÌ„ of felonie 11. H. 7. 16. and after he is acquitted thereof and discharged by the court paying his fées the Sherife or Gaoler may take of him barre-fées and this is no extortion but iustifiable for this money is not taken coÌ„trarie to the foresaid stat of anÌ„ 23. H. 6. which prohibiteth the sherife to take money for shewing ease or fauour to any person arrested Taking of barre-fees no extortion For this barre-fée is money which the court froÌ„ one age to another hath in discretion assigned the prisoner so discharged to pay to the Sherife or Gaoler for his great paines and charge for the safe keeping of the prisoners for attending vpon them and for conueying of them safely to the barre and from it to the prison If a man bee committed to prison for two seuerall felonies 26. Ass p. 47. and after he is discharged by the court paying his fées he shal pay but one fée for the Gaolers attendance was but vpon one person And if the Sherife or Gaoler take from a prisoner in his custodie the money in his purse or any garment that he hath this is no extortion but a trespasse for the recouerie whereof the prisoner may haue an Action of trespasse against the same Sherife or Gaoler and recouer the value thereof in dammages No extortion for gloues giuen vpon the allowance of pardon And if a man indited and arraigned of felonie 4. Ed. 4. 10. doth plead and shew forth the Kings pardon of the same felonie which is allowed by the court whereupon hee doth pay and giue his fées of gloues to the Iustices and other officers of the court this is no extortion 34. H. 6. 38. but an auncieÌ„t fée and lawfully due vnto them If the Iustices in an especiall Assise doe take their lawfull fées this is no extortion for they are not bound to sit vnlesse they haue them 34. H. 6. 42. 39 If a man that is attainted of trespasse doe come into the court Extortion in taking fees of him that doth appeare gratis where he was attainted and prayeth to make his fine to the King and offereth pledges for his fine if the Warden of the Fléet or other Kéeper of a prison do take any fées of him it is extortion seeing hee came in gratis and out of ward and yéelded himselfe to the court But if there be proces awarded against him for his said fine and he be taken thereby then he shall pay his fées to the warden or Kéeper c. and it is no extortion to take them for that he came in by compulsion and not willingly St. 27. H. 8. 26. 40 After that by the Stat. of anÌ„ 27. H. 8. it was enacted That the Kings countrie or dominion of Wales should be incorporatd vnited and annexed to and with the Realme of England and that all persons borne and to be borne in the said Principalitie and dominion of Wales should haue enioy and inherit all and singular fréedomes liberties rights priuiledges and laws within this Realme and al other the kings dominions as other the Kings subiects borne within the same haue enioy and inherit And that the lawes ordinances and statutes of this Realme of England for euer and none other shall bée vsed and executed in the said dominion of Wales and euery part thereof in like manner forme and order as they be in this Realme And that the said dominion of Wales was by the said Statute of 27. H. 8. and by the statute of anÌ„ 34. H. 8. diuided into xij
shires and a President and Councel established there and in the Marches of the same with all officers clerkes and incidents to the same And that there should be Iustices of Assise and Gaole deliuerie there which should kéepe Sessions in euery of the said shires twice in the yeare and a Marshall and a Crier in euery circuit And that there should be original and iudiciall seales for the sealing of Writs and Proces in the said shires And that there should bee foure Prenotaries in Wales and also certaine Iustices of Peace and Quorum and a Custos Rotulorum Bailifs of Hundreds Sherifs Escheators Coronors Constables of Hundreds in euery of the said xij shires Then to preuent and auoyd extortion of the foresaid Officers in Wales and to the intent that the said Officers might know what money to demand and euery sutor what to paie for all Proces originall and iudiciall declarations pleadings c. by the said Stat. of anÌ„ 34. H. 8. it was particularly expressed how much should bee paied for the writing and sealing of originall and iudiciall Writs and proces The fées expressed to preuent extortion in Wales and what Prenotaries shal take for their fées what euery Marshall and Crier of the Iustices shall haue and what fées the said Sherifes and Coroners shall take in many diuers and seuerall cases But after in and by the said Stat. of anÌ„ 34. H. 8. it was further ordained That in all and euery Writs originall or iudiciall or other Proces pleas or writings which bée not expressed in the said ordinance the fées thereof as well for the seales as writing shal be rated by the said President Councell and Iustices or three of theÌ„ whereof the said President to be one by their discretion from time to time as the case shall require And they shall haue full power from time to time to assesse and appoint what fee the said Sherifes Escheators and Coroners and their ministers Prenotaries and their clerkes and other ministers of iustice in the said shire shall haue of the Kings subiects for any maner writs plaints pleas proces returnes or any other matter or thing concerning or belonging to the execution of their offices and roomes and to augment or diminish any fée or fées aboue declared as shal be thought by their discretions to be conuenient and méet for the common wealth of the kings subiects of those partes of Wales Oppression 1 OPpression is a grieuance done by one man or more to the hurt or preiudice of others What oppression is without any warrant of law or colour of iustice or it is a burden or charge which one man doth impose on another more than the law doth lay vpon him and is for the most part wrought by the superior in countenance abilitie or office to the inferior in the same for the oppressor sicuti Nimroth robustus venator tanquam Leo subuersor in domo sua is alwayes offering hard measure to them who are to deale with him vntill they be able and willing to resist him The fraudulent deceiuor yéeldeth a man something for his money or at the least giueth a faire colour so to do The extortioner is most times an officer and doth take paines and is worthy of his due reward so is tollerable vntill he wresteth more than his desert But the oppressor grapleth for what he can get and returneth nothing and wresteth to reap that which he hath not sowen and to gather fruit where he hath not grafted the marke he roueth at is his priuat profit respectâ—th not how many and how much he in that cause hurteth so that his owne purse be filled or his will be accomplished As Oppression by disseisin euerie disseisor who doth vnlawfully expell and put another man out of his fréehold may aptly be termed an oppressor for hee doth not put in practise that iniurie couertly and secretly by fraud and collusion vnder hand as the deceiuor extortioner do but by plain and open wrong and doth stand in the face of al his beholders and commonly iustifieth that which he hath done And therfore as the said disseisin and oppression is manifest so hath the stat of West 2. appointed a speedie and manifest remedie to the disseisée to redresse and reforme the same which is by an Assise of Nouel diss to the end that as he was newly and lately disseised so he might be quickly and spéedily restored And because the law doth adiudge a man oppressed and iniured who is disseised of estouers of wood Of what things one may be disseised or of profit to be taken in wood nuts acorns and of other fruit to be gathered or of a corrody of deliuering corne and other victuals and necessaries to bee receiued yearely in a place certaine or of toll tonnage passage pontage pawnage or such like things to be taken in places certain or of the kéeping of woods forrests parks chases warreines gates and other bailiwikes and offices in fée or of common of pasture turbaries fishing and such like which a man hath belonging to his fréehold or without his fréehold by speciall déed at the least for terme of life or when one man doth pasture anothers seuerall or when tenant for yeares or garden of a tenement doth alien the same in fée whereby the fréehold is transferred to the feoffée St. 13. E. 1. 25. therefore in all the cases aforesaid that said stat of West 2. doth giue to the party so oppressed and disseised his remedie to recouer the same by the said Ass of nouel diss in which the writ shal be De libero tenemento If tenant by Elegit be put out of the tenement which he hath in execution St. 13. E. 1. 25. St. 13. E. 1. or tenant by Statute marchant be put out of the land which he hath in execution or tenant by Stat. staple be put out of the land which he hath in execution or tenant by Recognisance in the nature of a Statute staple his executors St. 27. E. 3. 9 St. 23. H. 8. 9. administrators or assignes or any of them be disseised or put out of the land which he or they haue in executioÌ„ he or they so disseised or put out may haue maintaine an Assise for it is to him or them a disseisin an oppression St. 32. H 8. 7 If any person who hath an estate of inheritance or fréehold in any parsonage vicarage portion pention tithes oblations or other Ecclesiasticall profit made temporall be deforced kept or put from the same this is a disseisin and oppression the party so wronged may haue an Assise to recouer the same And if any Escheator St. 3. E. 1. 24 Sherife or other of the K. Bailifes shall by colour of his office without speciall warrant or certaine authoritie which belongeth to his office disseise any man of his fréehold or of any thing which belongeth to his fréehold this is an oppression
prices or the buying of anie dried or salted fish herring or sprats not forestalled and solde for reasonable prices or the buying of any corne fish butter or chéese by any such Badger lader kidder or carier as shall be assigned and allowed to that office or doing by thrée Iustices of Peace of the Countie where the said badger lader kidder or carier shall dwell which shall sell and deliuer in open faire or market or to any other victualler or to any other person or persons for the prouision of his or their house or houses all such corne graine butter and chéese as any such person shall buy or cause to be bought and that within one moneth next after he shall so buy any such corne graine butter or chéese so that the same shall be bought without forestalling or else that any such common prouision made or héereafter to be made without fraud or couin by any person or persons of any of the things abouesaid for any citie borough or towne corporat or for the prouision or victualling of any ship castle or fort within the kings dominions without forestalling which shall be imployed onely to that vse and purpose or the buying and prouision of any of the victualls aboue mentioned necessary for the furniture and prouision of the inhabitants or of the towne of Barwicke Holy Island or the Marches of England against Scotland which without fraud or couin shall be transported and conueied as soone as winde and weather may serue to such of the places aforesaid for the which the same shall be so prouided shall not be in any wise deemed adiudged or taken any offence contrarie to this Act. If any person or persons hauing sufficient corne and graine for the prouision of his or their owne house or houses St. 5. 6. Ed. 6. 14. and sowing of their grounds for one yeare doe buy any corne in any faire or market Buying of corne for the change of seede for the change of his or their séede and do not bring to the same faire or market the same day so much corne as he shall fortune to buy for his seede and sell the same if he can as the price of corne then goeth in the said market or faire then euery such person or persons so buying corne for séede shall forfeit and loose the double valew of the corne so bought If any person or persons shal buy any manner of oxen ronts stieres kine heifers St. 5. 6. Ed. 6. 14. calues shéepe lambs goats or kids liuing Buying and selling of cattell aliue and sell the same againe aliue vnlesse he or they do kéepe and féede the same by the space of fiue wéeks in his or their owne houses ground farme ground or else in such ground or grounds where he or they haue the herbage or common of pasture by graunt or prescription then euery person and persons so buying and selling againe shall loose the double valew of the cattell or things so bought and sold againe The moitie of all which forfeitures afore rehearsed shall be to the King and the other moitie to him or them that will sue in any of the Kings Courts of Record by B.P.A. or I. c. in the which no W.E.P. c. The Iustices of peace in euery County within this Realme or Wales at their quarter Sessions St. 5. 6. Ed. 6. 14. shall haue full power and authoritie by vertue of this Act to inquire heare and determine all and euery the defaults and offences The authoritie of Iustices of peace committed or done contrary to this Act within the County where any such Sessions shall be kept by Inquisition presentment bill or information before them exhibited by examination of two lawfull witnesses or by any of the same waies or meanes by the discretion of the said Iustices and to make processe thereupon as though they were indicted before them by Inquisition or by verdict of twelue men or more and vpon the conuiction of the offendor by information or sute of any other than the King to make extracts of the one moity of the forfeitures to be leuied to the Kings vse as they vse to doe of other fines issues and amerciaments growen in the Sessions of peace and to award execution of the other moity for the complainant or informer against the offendor by Fieri facias or Capias as the Kings Iustices at Westminster may doe and vse to doe And if any such conuiction or attainder shall héereafter happen to be at the Kings sute onely then the whole forfeitures to be extracted and leuied to the Kings vse onely Whatsoeuer person shall at anie time heereafter be punished by vertue of this Act But once punished for one offence for any thing mentioned in this Act then the same person shall not otherwise be vexed troubled sued or put to any paine or punishment for that one thing wherefore hée or they shall haue béene so punished Prouided alwaies St. 5. 6. E. 6. 14. that it shal be lawfull to euery person or persons which shal be assigned and allowed by thrée Iustices of the peace of the county where he shall dwell Transporting allowed by Iustices of peace thereunto to buy otherwise than by forestalling corne graine or cattell to be transported or carried by water from any port or place within the said Realme or Wales vnto any other port or place within the saide Realme or Dominions if he or they shall without fraud or couin shippe or imbarke the same within fortie dayes next after he or they shall haue bought the same or taken couenant or promise for the buying thereof and with such expedition and diligence as winde and weather shall serue to carrie and transport the same to such port or place as his or their cockets shall declare and there doe dis-barke vnlade and sell the same and doe bring a true certificat thereof from one Iustice of peace of the County or maior or bailife of the towne corporat where the same shall be vnladen and also of the Customer of the port where such vnlading shal be of the place and day where the saide corne or cattell shall be disbarked vnladen and solde to be directed vnto the Customer and Comptroller of the port where the same was imbarked At all times when wheate shall be commonly at the price of sixe shillings eight pence the quarter When corne may be ingrossed or vnder St. 5. 6. E. 6. 14. mault and barley at thrée shillings foure pence the quarter or vnder otes or otes maulted at the price of two shillings the quarter pease or beanes at the price of foure shillings the quarter or vnder and rie or mescelin at the price of fiue shillings the quarter or vnder all which quarters shall be intended to be of London measure then it shall be lawfull to euery person and persons not forestalling to buy ingrosse and keepe in his or their
said appeale is entred ought to be prisoner in the same Gaole and if not the same appeale is void S. Approuers 19. St. 28. E. 1. 9. H. 4. 2. Yet an approuer may appeale others that are not in prison but at large which is by force of the statute of 28. Ed. 1. de Appellatis And when an appeale is commenced before Iustices of Gaole deliuerie against diuers whereof there is but one in prison before them this appeale ought to be remooued into the Kings bench by a Certiorari and from thence proces shall be awarded against them which be at large Anno 1. M. Dyer 99. And Iustices of Assise may hold plea of appeales of robberie An appeale before Iu. of Assise by the commission of Gaole deliuerie An appeale before the I. of the Kings Bench. 45 As well as Iustices of Gaole deliuerie and the Sherife and Coroners haue authoritie to receiue an appeale by Bill 17. Ed. 3. 13 in like sort Iustices of the kings bench haue power to accept an appeale by Bill for they be the soueraigne coroners of the Realme Appeale against one Bayled 46 If one be in prison for felonie in the Kings bench 21. H. 7. 33. 32. H. 6. 4. or before the Iustices of Gaole deliuerie and after let to baile yet an appeale by bill may be commēced against him for he is a prisoner notwithstanding that bailement for they which tooke him in batle be his guardians and shall be charged if he escape some doe affirme that they may imprison him and some do hold that they shall be hanged for him And vpon his bailement he shall find sureties to answer to all persons No appeale against him that is let by mainprise But an appeale is not to be pursued against him 9. Ed. 4. 2. 39. H. 6. 27. who is let at libertie by mainprise for that he is not in ward No appeale before Iustices of peace 47 Some doe affirme that an appeale may be commenced before Iustices of peace for they haue authoritie by their commission 44. E. 3 44. and by the Statute of 18. Ed. 3. 2. to heare and determine felonies But others doe hold that they must onely procéed vpon indictment found by a Iurie before them and not vpon an appeale prosecuted at the suit of the partie grieued for the words of their commission be Ad inquirendum per Sacramentum proborum legalium hominum de comitatu praedicto per quos rei veritas melius sciri poterit de omnibus omnimodis felonijs c. Et ad omnia singula felonias c. indictamēta praedicta caeteraque omnia singula premissa secundum leges statuta regni nostri Angliae prout in huiusmodi casu fieri consueuit aut debuit audiendum terminandum By which words it is to be inferred that they shall enquire and punish at the Kings suit vpon indictment and not at the parties suit by appeale such felonies as shall bee committed within their Iurisdiction 48 If one of the Kings subiects doe kill another of his subiects in a forrain Realm the wife or next heire of him that was slain as the case requireth An appeale before the Constable and Marshall may haue an appeale of the same death in England before the Constable Marshall of England St. 1. H. 4. 14 by force of the Statute of 1. H. 4. which doth ordaine That all appeales of things committed within the Realme shall be tried and determined by the lawes of the Realme and of things committed out of the realme before the Constable and Marshall of England for the time being And no appeales fromhenceforth shal be made or pursued in Parliament No appeale in Parliamēt Bracton Britton 49 It doth appeare by Bracton and Britton Where there shal be diuers appeales for one felonie and where not that one might haue had in former ages one appeale against the principall and another against the Accessories but since that law is changed viz. The appellant shall haue but one appeale Co. li. 4. 47. in the which he must comprehend as well the principals as the accessories vnlesse it be in speciall cases and that is confirmed by the Stat. of West 1. St. 3. E. 1. 14 which doth ordaine That no person shall be outlawed vpon appeale of commandement force aide or receit vntill the principall be attainted But the appellant shall not let to attach his appeale at the next countie as well against the accessorie as against the principall But the Exigent against the accessorie shall staie vntill the principall be attainted by outlawrie or otherwise 9. H. 4. 1. 50 In an appeale against two if one doe appeare One only appeale for one felonie and the other make default yet the plaintife shall count against them both and the same law which compelleth the appellant to count at one time against them both doth enforce him to sue his appeale against them both for if an appellant doe bring an appeale against one person Co. l. 4. 47 and the appellée is attainted and hanged at his suit and after he will bring an other appeale against one or two others for the same offence he shall take no benefit by his suit for he should haue ioyned thē all in his first appeale 47. E. 3. 16. And the same law is if the first appellée had béene acquited or that the appellant had bin Non suit after apparance 51 It séemeth that in some cases at this day one may haue diuers appeals for one felonie Where diuers appeales for one felonie as if one in one countie doe procure another to robbe a man in another countie In this case the partie robbed shall haue one appeale against the principall in one countie and another against the accessorie in another countie or otherwise he should be without his remedie against the accessorie by Appeale St. 2. 3. E. 6. 24. But by the Statute of Anno 2. 3. E. 6. if one in one countie doe procure another to kill a man in another countie hee to whom the appeale of murder is giuen shall commence his appeale in the countie where the partie shall die S. Br. 37. 26. Ass p. 52 Co. li. 4. 48. 52 And so it is Two appeals founded vpon one felonie if the Appellant doe commence his appeale against the principall within a yeare and a day after the felonie committed and after the said appeale commenced another will receiue the same felon In this case the appellant may pursue another appeale against the said accessorie for these two be seuerall felonies which began at seuerall times S. Br. 35. Robbery of seuerall parcels of goods 53 If a man be robbed of two seuerall parcels of goods at one time he cannot haue two seuerall appeales for them and put parcel of the goods robbed in one appeale and parcel in
the appeale of the plaintife and then it shall be inquired by the Visne where the Felony was committed by the people of that County where the appeale is brought except it bee brought in London for London hath such a priuiledge that they shall not bée drawne to appeare vpon Iuries out of the Citie and the Kings Iustices cannot goe into the Citie and take the same by Nisi prius because it is but an Enquest of Office 1. H. 4. 5. 2. R. 3. 12. and therefore in that case they doe inquire of it by people of the County where the Felon was taken and from thence shall the Visne come But first the Court is to inquire of the Defendant in the appeale Fit Forfeit 15. if hée doe clayme any propertie in the goods or not and if hée clayme nothing therein then it must enquire if the goods were the plaintifes at the time of the Robbery committed and moreouer inquire of the Fresh suit 5 By the common Law there was no helpe for the party robbed by indictment of the Felon to recouer his goods againe or to haue restitution of them Restitution vpon attainder by indictment for although the enquest which tried the Felon vpon his arraignment would after they had found him guilty of the Felony Fi. Cor. 460. haue said that the party robbed had made Fresh suit yet that would not haue auailed to haue procured him restitution of his goods And therefore to redresse that enormitie there was a statute made Anno 21. H. 8. by which it was enacted St. 21. H. 8. 11. That if any Felon or Felons hereafter doe robbe or take away any money goods or cattels from any the Kings Subiects from their person or otherwise within this Realme and thereof the said Felon or Felons be indicted and after arraigned of the same Felony and found guilty thereof or otherwise attainted by reason of euidence giuen by the party so robbed or owner of the said mony goods and cattels and that as well the Iust of Gaole deliuery as other Iustices before whom any such Felon or Felons shal be found guilty or otherwise attainted by reason of euidence giuen by the party so robbed or owner or by any other by their procurement haue power by this act to award from time to time Writs of Restitution for the said money goods or cattels in like manner as though any such Felon or Felons were attainted at the suit of the party in appeale And so by force of this Statute the party robbed shall haue restitution of his stolne goods vpon euidence giuen by him or by any other by his procurement against the Felon though he neuer made any fresh suit S. Euidence 3. 4. Appeales 55. ⧠Dammages in Appeale 1 IVstice and reason doe require that when a mans life his fame and credit his lands his goods the disheritance of his posterity the corruption of his blood and all that he hath in this world to forfeit hath bin put in hazard and brought into question and triall without iust desert or other ground but only vpon the malicious accusation of some one or moe persoÌ„s and that he is found a true and lawfull man duly acquit by the country of the offence whereof he was appealed that he should haue recompence for it against his false accusor and if his accusor be not sufficient then against him or them that did procure or abet him to pursue the appeale And therefore the common law did giue dammages to the defendant in an appeale 48. Ed. 3. 22 and assigned him a meane to recouer them when he was acquit of the felony But because the dammages which were to be recouered against the procurors or abettors were to be recouered by writ originall viz. by a writ of Conspiracy and not otherwise which was not so spéedy a remedy as the great malice and wickednesse of the offence required the stat of West 2. was made for the quicker redresse thereof AnÌ„ 13. Ed. 1. the words whereof be these St. 13. E. 1. 12 viz. For as much as many through malice intending to grieue others do procure false appeales of homicide and other felonies to be sued by appellants hauing nothing wherewith to satisfie the king for their false appeale nor to answer to the party damages It is ordained that when any which is appealed of felony imposed vpon him doth acquite himselfe in the K. Court in due manner either at the appellants suit or the kings The punishment of the appellant and abettors wheÌ„ the appellée is acquit the Iustices before whom the said appeale shal be heard and determined shal punish the appellant by one yeres imprisonment and neuerthelesse such appellant shall yéeld to the appellée damages by the Iust discretion hauing respect to the imprisonment or arrest that the party hath sustained by reason of such appeale and to the slander which he hath receiued by the imprisonment or otherwise also he shal pay a grieuous fine to the K. And if the appellants be not able to recompeÌ„ce the damages inquiry shal be made by whose abetmeÌ„t the appeale was maliciously coÌ„menced if the appellée desire it And if it be found by the same Enquest that any man is aâ—ettor through malice he shal be distrained by a iudiciall writ to appeare before the I. at the appellées suit and if he be lawfully conuict of such abetment by malice he shall be imprisoned and restore dammages as is aforesaid of the appellant In an appeale of the death of a man there shall no Essoine lie for the appellant for any cause No Essoine for the Appellant in appeale of death in whatsoeuer court the appeale shal be determined The appeale must be commenced vpon malice 2 And whereas the words of the foresaid stat of West 2. be St. 13. E. 1. 12 For as much as many through malice it doth thereby appeare that if the defendant in an appeale be to recouer dammages it ought to be in respect that the appeale was grounded rather vpon malice then vpon good matter 40. Ed. 3. 41. 22. Ass p. 39 32. H. 6. 2. And therefore if the defendant were indicted of that Felony wherof the appeale was sued before the suit of the appeale although the def be after acquit thereof yet he shall not recouer dammages because it shal be intended that the indictment induced him to bring the appeale and not malice But the law is méere contrary if he were not indicted vntill after the appeale commenced Or if there be any such variance betwéene the appeale and the indictment that the acquitall of him vpon the one is not the acquitall of him vpon the other as if he be indicted as principall and appealed as accessory vel e conuerso And yet it is otherwise 14. H. 7. 2 if the variance be not in a matter of substance for such a variance shal not so preiudice but that the acquitall
Lord shall haue a Writ of Escheat and where he may enter 52 The forme of a Writ of Escheat 53 The kings remedy for lands escheated vnto him An office for those lands which doe escheat for Felony 54 The wiues forfeiture of title of Dower 55 What the appellee that wageth battell shall forfeit 56 A Rent-charge pro consilio not forfeited 57 The forfeitures of an outlaw Corruption of Blood Fol. 239. 1 Corruption of Blood salued by Parliament only 2 Where corruption of blood shall preiudice tenant by the courtesie 3 The eldest sonne attainted during his fathers life 4 Where attainder but no corruption of blood Restitution of stolne goods Fol. 240. 1 Restitution of goods vpon Fresh suit 2 What conuiction shal be sufficient to giue the owner restitution of his goods 3 Where the owner shall haue restitution 4 Before whom and by whom inquirie of Fresh suit is to bee made 5 Restitution vpon attainder by indictment Damages in Appeale Fol. 242. 1 The punishment of the appellant and the abettors when the appellee is acquit No Essoine for the appellant in an appeale of death 2 The appeale must bee commenced vpon malice 3 The statute of 13. Ed. 1. extendeth to all Felons 4 The defendant in an appeale acquited by battell 5 Where the accessarie in an Appeale shall recouer dammages 6 Where the defendant is said to acquit himselfe in due manner and where not 7 Acquitall at the Kings suit is only in appeale 8 What Iustices may inflict the penaltie vpon the Appellant 9 The dammages for seuerall persons assessed seuerally 10 Where the appellant shall pay a fine to the king 11 In what cases inquiry shall be made for the abettors 12 What pleas the abettors may plead 13 Proces against the abettors Nonsute in the proces against the abettors 14 A writ against the abettors by the appellee 15 Procurers of indictments for suits in spirituall courts A Writ of Conspiracie Fol. 245. 1 In what case a Writ of Conspiracie doth lye 2 Conspiracie maintenable vpon an acquitall in an indictment or appeale 3 The indictment must be false which giueth the Writ of Conspiracie 4 Conspiracie doubtfull whether true or false 5 The conspirators do become indictors A Iustice of Peace A giuer of Euidence 6 Who be conspirators 7 A Conspiracie must bee by more then one Where only one shal be charged in Conspiracie 8 No Writ of Conspiracie against the Husband and the Wife 9 The forme of the Writ of Conspiracie 10 The writ of Conspiracy for the accessarie 11 Barres in a writ of Conspiracie 12 Iudgement in Conspiracie A villanous iudgement 13 Inquiry of Conspiracie by Iustices 14 Inquiry of Conspirators at the kings or parties suit 15 Procurers of an indictment or an appeale in a forraine county 16 An offence supposed to bee done in a place where there is none such The Coroner and his authoritie and dutie in Felonies c. Fol. 249. 1 The office and duty of a Coroner 2 The Writ de Coronatore Eligendo 3 Who shall be Coroners and by whom they shal be chosen 4 Whether Coroners ought to be knights 5 Causes to remoue a Coroner 6 Where a Coroner shall haue fee and where not 7 What things Coroners shall inquire of 8 A Coroner shall execute his Office in his owne person A Câ—â—oner shall see the dead body A body buried taken vp againe 9 A Coroner must presently doe his office 10 A Coroner shall onely enquire of the death of a man A man slaine in an arme of the Sea A Coroner concealing or not apprehending a Felon 11 The force of a Coroners Record Which Coroners Record shall be preferred Abiuring before the Coroner Confession of breaking of Prison before the Coroner 12 Who ought to appeare vpon the Coroners Inquisition 13 The Coronour with the Sherife may take Appeales 14 Stopping vp of a place of daunger by the Coroners commaundement 15 Where the presence of all the Coroners is requisite and where but some one of them 16 The Coroner must record the euidence and bind the party to giue it 17 Inquiry of a man slaine within the Kings House and Verge 18 One man Coroner of the Kinges House and the Countie Who shall be Judge in Treason and Felony Fol. 253. 1 The King ought not to bee iudge in Treason or Felony What men of condition Iudges ought to be 2 None shall make Iudges but the King 3 Iudges vpon the arraignement of the Peeres of the Realme 4 Iudges of offences that are done in the Kings Pallace 5 Iudges of Conspiracies made to destroy the King or any Lord c. 6 Iudges within the Verge 7 Iudges of Treason committed out of the Realme 8 Iustices of Gaole deliuerie Iudges in Felony 9 Iudges of Nisi prius Iudges in Felony c. 10 Speciall commissioners Iudges at the arraignement of a Murderer 11 Iudges of piracie or offences done vpon the sea 12 Iustices of Peace Iudges in Felony 13 The Lord of a Mannour Iudge in Felony Infangtheefe Outfangtheefe 14 A Felon first executed and then iudged FINIS
any other priuat person who intrudeth himselfe without warrant to be a censor of manners rather séeketh the discredite of the partie then the reformation of his faults for this secreat searching into sifting of other mens conditions dyuing into their offences divulging them to their discredites doth conuince the offendor to be a man of lewde disposition to haue made shipwracke of his conscience doth brand him during his life with the name of an infamous Libeller or slaunderous backbiter And therefore by Gods owne commandement it is specially giuen in charge to euery of his people Non maledices principi populi tui Non fasias calumniam proximo tuo Psal 100. And king Dauid saith Detrahentem secreto proximo suo hunc persequebar And God doth threaten that he himselfe will take reuenge of the slaunderer Psal 49. saying Sedens aduersus fratrem tuum loquebaris aduersus filium matris tuae ponebas scandalum haec fecisti tacui exictimasti inique quod ero tui similis sed arguam te et statuam contra faciem tuam And as infamous libelling secret defaming be oft times the causes of grudges séeking of reuenge and thereby of quarrels in like sort words of slaunder or spéeches of disgrace openly published to the face of an other or behind his backe be also firebrands of variance dissention fighting and the shedding of bloud and so be speciall meanes of the breach of the peace Action vpon the case for slaunder is contra pacem As it may partly appeare by the words of the kings writ alwayes inserted in an action vpon the case brought by one person against an other for speaking of slaunderous words in which writ it is supposed that the words were spoken Ad graue damnum ipsius querentis contra pacem nostram And the same is further proued by the words of the statute of An̄ 2. St. 2. R. 2. 5. R. 2. whereby it is ordeined That because publishing of false newes tales and lyes of Prelates Dukes Earles Barons Slaundering of Noble men or great Officers other noble and great men of the Realme or of the Chauncellor Treasorer Clerke of the priuie Seale Steward of the Kings house Iustice of the one Bench or of the other or of other great Officers of the Realme debate discord or matter of discord or slaunder may rise betwéene the Lords commons whereof great perill may come to the Realme and spéedy subuersion destruction of the same therefore it was enacted by the said statute That if any do commit the before specified offence he shall be taken imprisoned according to the statute of Westm̄ 1. St. 3. E. 1. 34. vntill he hath brought forth him which did speake the same St. 12. R. 2. 41. And further by an other statute made An̄ 2. R. 2. it was moreouer enacted That when the said offendor is taken imprisoned and can not find him that spake the words then he shall be punished by the aduise of the Councell And to the intent that such euill disposed persons which by their lewde spéeches slaunderous words or reports do indeuor to breake or disquiet the peace of the Realme Sta. 1. 2. P. M. 3. might the sooner be inquired of found out punished By a stat made An̄ 1. 2. P. M. it was further established That the Iustices of peace in euery shire citie towne corporat within the limits of their seuerall commissions shall haue full power to examin heare determine the causes abouesaid in the said 2. acts of 3. E. 1. 2. R. 2. specified to put the said 2. stat euery branch in them conteyned in due execution that condigne punishment be not deferred from such offendors And besides the before mentioned penalties assigned to be inflicted vpon transgressors by the foresaid stat euery noble man or great officer of the realme against whom any scandalous words 11. El. Dy. 285. Co. li. 4. 12. false newes or lies be spoken may prosecute against the offendor an action De scandalis magnatū recouer damages against him And in like sort may euery inferior person for any such like words of infamie spoken against him pursue an action vpon his case against the offēdor recouer his damages And further if one person shall exhibit a bill in the Starre chamber against an other amongst other things charge him with murder piracy robbery or other felony or to be a procurer thereof or accessory thereunto or with any other offence which is not examinable in the said court the defendāt in the said bil may prosecute against the complainant therein an action vpon the case recouer his damages for this bil was exhibited of malice by the complainant to remaine of record in the said court to the infamie slander of the defendant not to punish him for the said offences suggested in the sāe bil by a course of justice séeing the court of Starre chamber hath no authoritie to inquire of or punish the same offences But if the complainant doth suggest in his said bill of complaint any matter against the defendant which is examinable in the said court then no action vpon the case is maintenable against him by the defendant therefore though the matter surmised be méerely false for it is done in a course of justice Et sub iudice lis est whether the matters suggested be true or false vntil they be proued And in former ages spéeches tēding to the reproch of others were so odious that K. Edgar ordeined that his tongue should be cut out which did speake any infamous or slaunderous words of an other Edg. Lex 4. But though it be true as is aforesaid that infamous libels secret defamations or publick slanders or reproches be oft times more offensiue to the party taxed therby then open menaces and threates of violence are Yet séeing for the most part menaces springing out of distemperat cholericke humors do more hastilie break forth into further fury extremities tending to the breach of the peace then libelling secret defamation doe which must haue a breathing time to be inquired of bolted forth and then to be punished Therefore I will omit to write any further of libelling or defamation goe forward with menaces c. tota sequela sua 2 Menaces assaults batteries be things of seuerall natures yet for the most part they tend to one effect viz. to hurt him against whom they are bent menacing is a threatening of some hurt to be done or procured by the speaker or some other by his meanes to the person of the hearer or his wife seruant tenant or other The differēce of menace assault and battery whereby he receiueth losse or hurt Assault is an attempt to execute the thing menaced by force violence Battery is the performing of the thing before threatened viz. the beating
did loose his seruice it is a good plea for the defendant to say that he was not the plaintifs seruant or that he was the defendants seruant and not the plaintifs or that he was farmor tenant neighbor or soiourner with the plaintife and not his seruant or that the partie beaten was the plaintifs wife And in the said action of trespas of assault and batterie for the beating of his seruant 22. H. 6. 43. he néed not declare of the retainer of the same seruant for if he did but serue his master at his pleasure yet the master shall haue an action of trespas for the losse of his seruice 14 As the law doth allow a man to beat another in defence of his person Battery in defence of his goods from extreame peril so doth she tollerate one man to beat another for the preseruation of his goods from rapine and spoile for as it standeth not with the peace of the realme that one man without some lawful cause should beat another so it standeth not with the iustice of the realme that one man should take anothers goods iniuriously from him And he that will attempt by force and violence to take away another mans goods wrongfully from him 9. E. 4. 28. 19. H. 6. 31. 65. Kel p. 92. may iustly by force strong hand be resisted And if in that case he that shall make an assault to take those goods be in the encounter beaten by the owner of the same goods the law will excuse the owner therin protect him to defend those goods wherof he hath a lawfull propertie And the same law is if a man hath no propertie in goods but onely a possession by the bailement of another to bee redeliuered when they shall be required if in this case a stranger will assay by force to take the same away Lib. Intr. 553. he that hath the possession of the same goods though it be but a bloodhound may defend the same by force And if the said stranger shal be hurt or beaten in that assault he shall haue no remedy by action of trespas or otherwise against him that had the said possession for he may iustifie the defence of the goods so bailed vnto him in respect that he hath the lawful possession of thē and standeth chargeable to redeliuer them or the very value of them to him the bailed them vnto him whensoeuer he shall be required Battery in defence of his land lease or way And so it is if one hath a mill whereunto a riuer or spring of water doth run 3. H. 4. 9. and hath run time out of the remembrance of man and another would stop the course of that water turne it another way the owner of the mill doth disturbe him therein wherupon that other doth assault and attempt to beat him In this case if the owner of the mill for his owne safegard and for the defence of his auncient water course doth beat him againe it is iustifiable for this beating was not an intended breach of the peace but to defend him from violence offered to his person Lib. Intr. 554. 11. H. 6. 33. 10. E. 4. 6. and iniurie to his fréehold or terme And the same law is in euery case of batterie of another who doth menace or assault the right owner and attempt to beat him for the lawfull defence of his owne fréehold or terme or from his lawfull high way 9. E. 4. 3. 15 If one man do make assault vpon another attempting to beat him Battery inresisting a Iustice of peace so to breake the peace if a Iu. of peace do command him that maketh the assault to kéep the peace to surcease his assault he wil not do it or wil answer that he will not the Iust of peace may lay his hands vpon the offendor arrest him to find sureties of his good behauiour and if the offendor doe make rescue and resist the arrest by force and then be beaten hee shall haue no remedie against the same Iustice of peace who hath done nothing but that which belonged to his office and dutie and the offendor first in breaking the peace and after in resisting the Iustice of the Law being beaten by the Iustice of Peace or any other in his company hath worthily tasted the due reward of his owne disobedience And also the Iustice of peace may in this case commit the offendor to prison vntill he hath found sureties to kéep the peace A Iustice of peace may arrest one to find suretie of peace 21. H. 7. 22. 9. E. 4. 3. and though he doth let the same partie after to goe at libertie without finding suretie of peace yet he shall haue no action or other remedy to punish the same Iustice because he is Iustice of Record A schoolemaster beateth his scholler 16 In an action of trespasse of assault and batterie 21. E. 4. 6. Li. Intr. 555 it is a good plea for the defendant to plead that he is a schoolemaster and a teacher instructer of children and that the plaintife put himselfe to be scholler with him to be taught instructed in his booke and because the plaintife was carelesse and negligent in learning of that whereof he was instructed or did beat abuse other schollers his schoole-fellows the defandant did beat him with a rod as it was lawfull for him to doe A master beateth his prentice 17 And likewise in an action of trespasse of assault and batterie it is a good plea for the defendant to plead that he is a free man of the citie of London 21. E. 4. 6. 53. occupying the trade of a draper that the plaintife beeing aboue the age of xiiij yeares put himselfe apprentise vnto him to serue him in that trade by the space of vij yeares And because the plaintife was negligent in learning his trade he did strip him and beat him with a rod as it was lawful for him to do and if he did not sufficiently beat him for his offence at one time hee may beat him againe And in like sort if a villaine wil not be iustified by his Lord nor obedient vnto him it is lawfull for the Lord to chastise and beat him or to imprison him or to inflict any reasonable punishmēt vpon him so that he do not maihem or kill him for in the foresaid cases the schoolemaster master and Lord haue a ciuill power and authoritie ouer the scholler seruant and villaine Some doe hold that if an apprentice or seruant be aboue the age of xxj years and then do his seruice negligently that his master ought not to beat him therefore but to haue an action of couenant against him But note the forme of the Indenture of an apprentice touching chastising him And it appeareth by the Statute of 33. H. 8. 12. that the master may strike his seruant with his hand fist Stat. 33.
other vnlawfull act prohibited by that statute and being required by a Iustice of peace or shirife of the said County or by the Maior or chiefe officer of the city or towne corporat to returne to their inhabitations do not but attempt to put in vre any of the said things Then euery of the same persons shall be imprisoned one yeare without baile or mainprise for the offendors in both the cases aforesaid putting in practise their outrages with a multitude of persons bee great disturbers of the peace and Transgressours of the law 21. H. 6. 5. 39 In an action of False imprisonment Imprisoning him that holdeth land with force the defendant pleaded that the plaintif held the manor of D. by force and B.C. a Iustice of peace of the same County did take him recorded the force and sent him to the defendant being Gaoler of the same County to be imprisoned and this was allowed a good iustification though he was committed to prison but by one Iustice of peace And in like sort if the action of false imprisonment had bin brought against the Iustice of peace who committed the offendor to warde the same had béen a good plea in barre for him St. 8. H. 6. 9. for that the statute of AnÌ„ 8. H. 6. doth warrant him so to do giueth that authority to one Iustice alone or to more then one 29. Ed. 3. 9. 5. H. 7. 4. 40 If a Huy and Cry be leuied and pursued that a horse of such a colour or marke so many beasts of such a sort or age Imprisoning of one pursued by Huy crie or so many shéepe of such a brand be stolen one is taken leading or driuing of the said horses beastes or shéepe it is lawfull for any man to apprehend and stay him and to commit him to the Constables of the Towne where he is apprehended and by them to be put into the stockes or safe kept vntill he be deliuered by due course of law though he be not of euill fame or name but a man of good credite for séeing the law by the Huy and Cry hath accused him by a course of law he must be againe acquited and discharged And in this case he that is so taken though he be after acquit of the felony shall not haue an action of Trespas false imprisonment or other remedy against him that did apprehend him Fitz. barre 202. 3. H. 4. 9. 41 In an action of Trespas of assault battery and imprisonment Imprisoning him that doth breake the peace the defendant pleaded that the plaintife menaced to kill him and therefore he requested the Constables to arrest the plaintife to find suerties of his good abearing and the Constables and the defendant with them did come and arrest him and put him into the stockes vntill he did finde suerties and this was allowed to be a good iustification 5. H. 7. 6. And in like sort if one do make an assault vpon a Constable the same Constable may arrest and imprison him vntill he hath found suerties to kéepe the peace though the Constable be the same person vpon whom the said assault was made for in this case he doth nothing but preserue the peace and obserue the Law which is to be done aswell in his own case 13. H. 7. 10. as any others And moreouer if a Constable be informed that a lewd man is in a suspected house with a woman of euill name for incontinencie he may take so many of his neyghbors with him as he will Arresting suspected persons and arrest the said man and woman to find suerties of their good behauiour And they nor eyther of them shall haue any action of False imprisonment or other action therefore against the said Constable or any other of his assistants for the Constable was ordeyned to kéepe the peace 10. Ed. 4. 17. and to represse felons And he may take suertie by Obligation if he find any commiting of a fray but vpon no penaltie And if the partie will not find suerties the Constable may impryson him vntill he hath found suerties 9. Ed. 4. 26. 42 In an action of Trespas of assault battery and imprisonment Imprisoning him that doth attempt to rob the defendant pleaded that the plaintife lay in waite in a high way leading from the towne of A. to the towne of B. to rob such persons as trauailed in that way and assaulted to rob one L. and drew his sword and commaunded the same L. to deliuer his purse whereupon L. fled and leuied Huy and Cry and this defendant being trauailing that way pursued the plaintife and tooke him and committed him to the Constable to be put in the stockes who did it accordingly and this was adiudged a good iustification for euery man may arrest and imprison him that doth commit a felony or him who maketh it apparant that he doth intend and goe about to commit a felony for that he doth manifest him selfe to be a principall breaker of the law and peace of the realme Assisting to arrest by warrant 43 In an action of false imprisonment against two 19. H. 6. 43. 56. one of them pleaded that he had a precept to arrest the plaintife which he did accordingly And the other defendant pleaded that he came in company with the other to ayde and assist him to arrest the plaintife And this was allowed a good Iustification in them both for any straunger may assist a Sherife his Baylifes or any other that hath authority to execute the Kings writs or proces and he that wil not assist him being required shall paie a fine to the King And the Sherife may take as many persons as he will to aide him to execute the Kings writs 3. H. 7. 1. 17. E. 4. 5. for it is in furtheraunce of Iustice and no breach of the peace Breaking a house to arrest 44 If a man be indicted of Trespas 27. Ass pla 35. 18. E. 4. 4. and a Capias pro fine awarded to the Sherife to take the body of the same person The Sherife may breake open his house or close to arrest and imprison him it is a lawfull imprisonment But the Sherife may not breake any house or chest to make execution by vertue of a fieri facias to him directed S. Force 32. The Sherife arreâ—eth and doth not retorne his writ 45 If the Sherife haue a Capias to arrest a man and he doth arrest him and after doth not retorne his writ the partie arrested may haue an action of false imprisonment against the Sherife and recouer damages for his wrongfull arrest or Imprisonment for the Capias is ita quod habeas corpus cius c. and so if he haue not the parties body in the Kings Court at the day of the retorne of the writ it shall be intended that he did not arrest him by force of that writ nor according to the
fine ImprisonmeÌ„t for offences done to the iustice of the Realme 57 As in the cases aforesaid imprisonment of offendors is both tollerable requisit when it is inflicted for misdemeanors done to the peace of the Realme so in many other cases it is as necessary when it is imposed for offences done to the law justice of the Realme being the foundation principall piller of the same peace and without the due execution whereof there can not be a general and perfect peace And amongst many other transgressors who doe offend contrarie to the justice of the Realme and yet in a sort doe preserue the peace the law doth principally note foure kinde of persons worthy for their offences to be imprisoned Whereof the first be they who doe commit some acts that be wrongfull iniurious and prohibited by the common lawes or Statutes of the Realme The second be they who doe attempt and prosecute vniust and wrongfull actions or suits to molest trouble or charge others The third be they who being impleaded vpon iust and good causes doe plead false or dilatorie pleas in retardation of justice and hinderaunce of the due and ordinarie course of the law The fourth be they who vpon stubbornesse contumacie or wilfulnesse refuse to doe that whâ—â—â— they know the law doth require at their hands and may enforce them vnto of euery of which amongst many I will insert some fewe cases ImprisonmeÌ„t for coÌ„mitting vnlawful acts As to the first by the Statute of Anno 5. Sta. 5. El. 14. Eliz. he shall be imprisoned and set vpon the pillorie who doth falslie forge or willingly assent or cause to be forged or made any false déede charter or writing sealed Forging of deéds Court Roll or the will of any person in writing S. Forgery â— to the intent that the estate of fréehold or inheritance of any person in any lands should be recouered or charged c. for forging of déeds is an iniurious and wrongfull act and alwaies hath bin hated detested and persecuted in this Realme Sta. 13. E. 1. 11. By the Statute of Westm 2. If the master do assigne auditors to any Bailifes Seruants Chamberlaines or other receiuors which are bound to yéeld accompt Accomptants found in arrerrages and it chaunce them to be found in arrerages all things being to them allowed they shall be arrested and by the testimonie of those auditors committed to the next Gaole which the King hath in those parts and shall be receiued by the Sherife or his Gaoler and prisoned fettered in irons liuing of their owne goods vntill they haue fully satisfied their master of all the arrerages for detayning of the arrerages of an accompt is a plaine and manifest wrong to the master 27. H. 6. 8. And this imprisonment must be presently after the accompt taken Disseison contrarie to his owne lease and not any distance of tyme after And he that doth a disseisin or maketh an entrie contrarie to his owne déede 14. Ass pla 12. Or is conuicted for the imbeziling of an Exigent or for some other notorious deceits committeth open and manifest iniurie and therefore shall be imprisoned 8. Ass â— 20. 28. Ass pla 28. If one man do make a lease of a Tenement by writing to an other for terme of life of the lessée whereupon the lessée doth enter and enioyeth it and after the lessor doth enter and disseise the lessée for life and then the lessée do bring an Assise against the lessor and recouer against him the Tenement leased in this case the same lessor shall be imprisoned for that he made an entrie contrarie to his owne deede and so willingly committed an open and manifest wrong 18. Ass p. 3. The same law is if a man do make a disseisin of land of his whole title wherein he hath before made a release or confirmation to the tenant of the same land in this case he shall be imprysoned And if a Gardian do take a feoffement of his wardes land being within age Fitz. Assise 395. he shall be imprisoned therefore for this and all the former be iniurious acts and knowen to the offendors to be prohibited by the law As touching the second point they be also worthy to be imprisoned who do attempt or prosecute vnlawfull suits to the trouble vexation of others As if one do bring an Appeal against an other 50. Ed. 3. 1. Imp. for prosecuting vnlawfull suits and that appeal do abate by the plaintifes nonsuit or by any other default of his he shall be imprisoned A woman brought an Appeal of the death of her husband against one 9. H. 4. 2. who was attainted and hanged at her suit and after shee brought an appeal against an other man of her said husbands death who pleaded the attainder of the first man in barre whereupon the appeal was abated and the woman committed to pryson for her wrongfull vexation and suit A woman brought an appeal against a man of the death of her husband 8. H. 4. 18. and her said husband was brought into the court and shée was examined if that were her husband who said yea but shée supposed that he had béen dead and therefore shée was imprisoned for her false appeal If one do bring an appeal against an other for a Murder Burglarie Robberie or other felony committed in W. in the County of N. and there is no such W. in that County the appeal shall abate and the plaintife shall be imprisoned for it is manifest that this suit was commenced vpon malice and to put the defendant to vexation and trouble and not vpon any iust cause Thirdly they are worthy to be imprysoned who do plead false Imp. for false or dilatory pleas or dilatorie pleas in hinderance of suits and retardation of justice As if a man in his plea do denie his owne deed 33. H. 6. 54. 45. Ed. 3. 11 6. Ass p. 4. 24. E. 3. 74. Sta. 34. Ed. 1 or do plead a false déed made to himselfe which is found against him by verdict or do plead a déed that is rased enterlined or otherwise suspicious that is adiudged against him he shall be imprisoned By the statute intituled De coniunctim feoffatis if the tenant in Assise do plead iointenancie of the land in demaund with his wife ImprisonmeÌ„t for false pleading of iointenancie or a stranger and sheweth a déed to testifie the same to the intent to abate the plaintifes writ and if it be found by the Assise that the exception was maliciously alleaged to delay the plaintifes right the said tenant shall be one yeare imprysoned though the assise passe for him against the plaintife And if that tenant in the assise be an Enfant who doth plead iointenancie yet if that plea be found against him 37. Ass pl. 1. he shall be imprysoned for that the said statute is generall 3. H. 6. 51. St. 13.
Ed. 1. 25. and doth not except an Enfant By the statute of Westm̄ 2. if he that is named a disseisour in an Assise do personally alleage any false exception whereby the taking of the assise is deferred viz. that at an other time an assise of the said tenements passed betwéene the said parties or that a writ of higher nature is depending betwéene them of the said tenements Imp. for failing of a record pleaded and doth vouch any rols or records to warrant the same and at the day giuen he faileth of his warrant he shall be adiudged a disseisour without recognizance of the assise and shall restore double dammages of that which shall be found and for his falshood shall be one yeare imprysoned And fourthly a man in diuers cases shall bee imprysoned for his stubbornesse wilfulnesse disobedience and contempt to subiugate and submit himselfe to the censure and iudgement of the Law and to performe accomplish that which the law doth expect at the hands of him and all others being in his case As if a Quid iuris clamat or Per quae seruitia be brought against a man Imp. for not atturning who doth appeare in Court and will not atturne to the plaintife nor plead in barre he shall be imprisoned for his stubbornes And if the tenant that ought to do homage or fealtie to his Lord Imprisonmēt for not doing his true seruice do appeare in Court and will not do such of the said seruices as be claimed of him neither plead in barre thereof Fitz. Per q̄ seruitia 23. he shall be imprisoned vntill he will do his foresaid seruices for his wilfull contempt of the law and disobedience to justice And if a writ of Estrepement be directed to the Shirife to prohibit him to commit wast in lands against whom a reall action Co. Lib. 5. 105. or action of Wast is depending for or touching the same lands the Shirife by force of the same writ may resist him who would do wast And if he cannot otherwise redresse the offence he may impryson him if néed be he may take the power of the Countie to assist him for this disobeying of the Kings writ and resistance of the Shirife is a wilfull frowardnesse and contempt of the law in the offendor and therefore he deserueth to tast the smart of the Law by imprisonment for his contumacy And in like sort by the statute of An̄ 27. Stat. 27. H. 8. 20. Stat. 32. H. 8. 7. H. 8. An̄ 32. H. 8. it was ordeined That if any person after sentence difinitiue giuen against him by the Ordinarie his Commissarie or other competent minister or lawfull Iudge do obstinatly refuse to pay his Tythes or duties or such summes of money adiudged wherein he is condemned for the same Then two Iustices of the peace of the same Shire whereof one to be of the Quorum shall haue authoritie vpon information Imp. for obstinate refusing to performe the Ordinaries sentence certificat or complaint made in writing by the ecclesiasticall Iudge that gaue the same sentence to cause the same person so refusing to be attached and committed to the next Gaole and there to remaine without bayle or mainprise vntill he hath found sufficient suerties to be bound by Recognizance or otherwise before the same Iustices to the vse of the King to performe the said sentence In the same maner may any one of the Kings Councell or two Iustices of peace vpon an Information or request made to them by the Ordinary St. 27. H. 8. 20. commit any offendor to ward for any contempt contumacie disobedience or any other misdemeanour of his in any suit for subtraction of Tythes offerings and other duties of the Church vntill he hath found suerties c. vt gladius gladium iuuet What is Matheining 58 Maiheming is an other gréeuance in the Realme and a speciall cause to disturbe the peace And that is when one member of the Common weale shall take from an other member of the same a naturall member of his bodie or the vse and benefit thereof and thereby disable him to serue the common weale by his weapons in the time of warre or by his labour in the time of peace and also diminisheth the strength of his body and weaken him thereby to get his owne lyuing and by that meanes the common weale is in a sort depriued of the vse of one of her members How many sorts there be of maiheming 59 This maiheming is a dismembring of a man or taking away some member or part of his body or the vse thereof As when a wound blow or hurt is giuen or done by one person or more to an other person whereby he is the lesse able to defend himselfe in the time of warre or to get his lyuing in time of peace And therefore if a man do put out the eye or cut off the hand or foote or any ioynt of the hand or foote of an other it is a Maihem though it be done by chaunce medley Sta. 5. H. 4. 5 But if one man of malice pretended do cut out the tongue or put out the eyes of any of the Kings subiects it is Felonie And if one man do crush the mouth or head of an other or break out his fore-téeth it is a maihem for with them he may defend him selfe in battaile but to breake his hinder téeth or to cut off his Nose Fitz. Corone 458. or Eares whereby he loseth his hearing is no maihem but a deformitie or blemish of his bodie and no weakning of his strength It is a Maihem to pull any boane out of a mans head or to cut off any finger of a mans hand 28. Ed. 3 94. Lib. in t fol. 45. or to breake any of them so that they become shronke vp or dried vp or dead or crooked Gelding of a man is also a maihem though it be in a secret place yet it maketh him more féeble and vnable to defend himselfe in in bataile or to worke for his liuing If by any wound receiued the sinewes or vaines of a man be shronke vp it is a maihem To cut off the chéeke or iawbone of any person Lib. intur fol. 45. or so to crush or breake any of them that the same person is the lesse able to take his meate or drinke is a maihem If one person or more doe take an other person by force and put him in the stocks or otherwise bind him fast and after poure so much skalding what oyle and vinegar or hoat melted lead or other skalding licor vpon any part of his body and so continue it vntill it doth wast and consume the flesh of the same part and drie vp and mortifie the veynes and sinewes of the same parte it is a maihem If A. do strike at B. and the weapon wherwith he striketh breaking or falling out of his hand by the force of the blow doth put
commission do only tend to the maintenance of justice the roote foundation and supporter of peace And whereas the King by the words of the said Commission doth appoint the persons therin named his Iustices to preserue his peace The Commission doth chiefely respect the peace and to kéepe and cause to be kept all ordinaunces and Statutes made for the conseruation of the peace and the quiet gouernment of his people These Statuts amongst many others chiefly be intended Sta. 2. E. 3. 6. 18. E. 3. 2. 34. Ed. 3. 1. the Statutes of Anno 2. Ed. 3. 18. Ed. 3. 34. Ed. 3. by which it is ordained that Iustices of peace shall haue power to heare and determine at the Kings suit all manner of felonies Why they be called Iustices of Peace and Trespasses committed against the peace in the same County and to restraine offendors riottors all other barretors and to pursue take and chasten them to imprison and punish them according to their Trespas and offence and to informe them according to the said Iustices discretion And to inquire of all those that haue béen pillers and robbers beyond the Sea and become againe and goe wandring and will not labour as they had wont to doe And to take and arrest all those which they can find by inditement or suspition and to commit them to prison Binding persons suspected to their good behauiour And to take of all those which be not of good fame in the place where they remaine sufficient suertie and maineprise of their good abearing or behauiour towards the King and his people and the other duelie to punish To the intent that the people be not by such Rioters troubled or endammaged nor the peace broken nor any passengers by the way disturbed or put in perill But the fines which Iustices shall assesse vpon any person shall be reasonable hauing regard the quantitie of the Trespas and the cause 70 So that it appeareth both by the words of the said Commission of peace A Iustice taking suertie of the peace and also by the foresaid Statutes That a Iustice of peace by vertue of his office hath authoritie to preuent the breach of the peace both by taking suertie for the kéeping of it and for the good behauiour of the offendors And that he may do either of his owne motion or discretion or els at the request or praier of an other And by his owne discretion he may cause a common Barretor Rioter or one that maketh an affray in his presence or other person to him suspected to be inclyned to the breach of the peace 9. E. 4. 3. or men menacing one to hurt or kill an other or contending in whote words to finde suertie of the peace And he may perswade one man to require the suertie of peace against an other man and he himselfe after may graunt it for it is no more then he might haue done of his owne authoritie which suertie of the peace What the suertie of the peace is is a recognizance taken by the said Iustice of peace of the partie and his suerties to the King for the kéeping of the peace And as a Iustice of peace may take this suertie of peace or suertie of good abearing as a Iudge by vertue of his office So may he doe it as a minister by force of a Supplicauit directed vnto him out of the Chauncerie Taking suerty of the peace by a Supplicauit in which case he is then only to direct his precept to compell the partie vpon the writ to finde suertie of the peace Which Supplicauit out of the Chauncerie is sometime directed to one Iustice of peace alone sometime to moe and sometime to the Shirife and sometime to him with others And then the same Iustice or Iustices of peace or Shirife must make retorne of the said writ of Supplicauit and a Certificat of his doing into the Court from whence the same was awarded And if the said Iustice of peace shall take the said Recognizance for the kéeping of the peace by vertue of his office Sta. 3. H. 7. 1 then by force of the Statute of Anno 3. H. 7. he shall certifie sende Certificat of a Recognizance or bring the same Recognizance at the next Sessions of the peace where he is or hath bin Iustice that the party so bound may be called And if the partie make default the same then there to be recorded And the same Recognizance with the record of that default shall be sent and certified into the Chauncerie the Kings Bench or into the Exchequer Suertie of good abearing And the suertie of good abearing is granted by authority of the foresaid commission of peace by the warrant of the before rehearsed statut of 34. E. 3. aswell as the suerty of peace is it is ordained for the preseruation of the peace it doth differ in nothing frō that of the peace but that there is more difficultie in the performance of it and the party bound may sooner slide into the peril danger of it The suerty of good abearing is most commonly granted in open sessions or by two or thrée Iust of P. Or vpon a Supplicauit great cause shewed proued it is granted in the Chancery or K. Bench. And though one Iustice of peace alone may grant it if he will yet it is sildom done so 9. E. 4. 3. Kel fo 41. vnles it be to preuent some great sodain imminent enormity or danger The suerty of peace is most times taken at the request of one for the preseruation of the peace chiefely against one But the suerty of good abearing is oftentimes graunted at the suit of diuers and those must be men of credit and to prouide for the safetie of many for the effect and purport thereof is that the partie bound shall demeane himselfe well in his port behauiour and company and doe nothing that may be the cause of the breach of the peace or in putting the people in feare or trouble And it is chieflie graunted against common Barretors common rioters common quarrellers common peace breakers and persons greatly defamed for resorting to houses suspected to maintaine incontinencie or adulterie and against those that be generally feared to be robbers or spoilers of the Kings people or which doe endamage disturbe trouble Articles exhibited to haue good abearing granted or put in peril passengers by the way Co. li. 4. 14. And therefore if one doe exhibit Articles to Iustices of peace against a certaine person comprehending diuers great abuses and misdemeanors not onely touching the Petitioner himselfe but many others to the intent that the same person may be bound to his good behauiour in this case the partie so accused shall not for any matter conteined in the said Articles maintaine an action vpon the case for the party or parties who exhibited the said Articles haue pursued an ordinarie course
County that he will so that he dwell within a conuenient distance and not too farre from the parties owne habitation But if a Supplicauit of the peace be directed to the Iustices of the peace the Iustice to whom the writ is first deliuered shall only make the precept to apprehend the partie to find suerty of the peace and that precept shall be retornable before him only and he only shall take the suerties and only make the retorne without the others Co. lib. 5. 59 And a Iustice of peace may if he will make a warrant to the Constable to bring the partie before himselfe 5. Ed. 4. 12. 76 If a Iustice of peace doe direct his warrant to the Constable A warrant to find suertie to keepe the peace or some other to cause A.B. to finde suerties to kéepe the peace The same Constable or c. must first require the same A.B. to find suerties to kéepe the peace and if he doe refuse it then he may arrest the same A. B. for if A. B. will finde suerties then the said Constable may not arrest him because the purport of the precept is performed which is if he refuse so to doe that then he shall conuey him to the Gaole And if the Constable shall arrest A. B. after that he hath found suerties according to the precept the same A. B. may haue an action of false imprisonment against him for that he hath arrested and imprisoned him without warrant or cause And likewise if the Constable do arrest A. B. and doe not carrie him before some Iustice of peace 5. E. 4. 6. to find suerties to kéepe the peace or if he resist or refuse so to doe then if he doe not carrie him to the Gaole A.B. may haue an Action of false Imprisonment against the Constable The partie must offer his suerties And when the partie commeth to the Iustice of peace by force of a warrant he must offer suerties to the Iust of P. or else he may commit him to prison 14. H. 7. 5. for the Iust néedeth not to demaund suertie of him Suerty of the peace dieth with the king 77 The suertie of peace is discharged by the kings death 1. H. 7. 1. for the band is to obserue the peace of the King and when he is dead it is not his peace So doth the death of the recognisor so doth also the death of him at whose suit it was taken discharge the suertie of the peace if in those cases it were not forfeited before The Iustices authoritie dieth with the King And in like sort when the King by his commission doth appoint Iustices of peace and after dieth or giueth ouer his crowne the Authoritie of the same Iustices doth cease for he maketh them Iusticiarios suos and therefore when he dieth their authority endeth The suertie for the peace must be named 78 When a Iustice of peace doth take suerties for the peace 2. H. 7. 4. it is not sufficient to say that I. N. hath found sufficient suertie for the peace without naming the names of the suerties but he must name their names and surnames He that is vound to the peace must appeare c. 79 If a man doe finde suerties to kéepe the peace 39. H. 6. 26. and hath day vntill a time prefixed he must appeare the same day although he who demaunded the peace doe not appeare or otherwise he shall forfeit his band But it is otherwise where a suit is betwéene party and party and the defendant being taken by a Capias is bound to appeare vpon a day appoynted 80 When the suertie of peace is graunted against a man by a Iustice of peace he will sometime rather desire to be bound to the peace by an other Iustice then by him that graunted the same and made the warrant And therefore he may offer himselfe to become bound to the peace to some other Iustice of peace of that County if he will A Supersedeas for the peace then procure a Supersedeas from that other Iustice before whom he is bound to all other Iustices of that Countie to be discharged of any other arrest to be made of him for the law doth not require that he should be seuerall times bound for one cause And this Supersedeas is sufficient although it neither name the suertie nor contein the summes wherin they are bound but yet it is a better forme to expresse them both as the Chauncerie and Kings Bench doe And when a man doth heare of such a precept awarded or granted against him by a Iust of peace of the County where he dwelleth he may go eyther giue suertie of the peace in the K. Bench or els in the Chancery thereupon may procure a Supersedeas from the court where he is bound to restrain the Iust of peace of the County to take any suertie of peace of him And then the Iustices of peace of that County must forbeare to make any warrant for the peace against the partie and if any of them haue awarded it A precept awarded by force of a Supplicauit he must make a Supersedias to discharge it But a Iust of peace of the county by a Supersedeas cannot discharge a precept that is awarded by his felow Iust by force of a Supplicauit directed to him out of the Chancery or the K. Bench to take the suertie of peace of one resident in that County If any officer hauing a warrant from a Iust of P. to arrest a man to find suerty of the peace shall receiue a Supersedeas out of the Chancery or the Kings Bench or from any Iustice of the Kings Bench or from any Iustice of peace of that County where he is commorant to discharge the same suerty of peace wil neuertheles vrge that partie against whom the same warrant is granted to find new suertie for the peace he may refuse to giue it And if the said officer will therupon vnder the color of his warrant commit him to prison the party imprisoned may haue an action of false impris against him for the the said warrrant is discharged by as great authoritie or greater as it was made and the thing for the which it was made is effected The forme of which Supersedeas graunted by a Iustice of the peace is this viz Thomas Denton Miles Buck. vnus Iusticiariorum dn̄i Regis nunc ad pacem in Comitatu p̄dicto conseruandum assignatur Vicecomiti comitatus praedicti A Supersedeas for the peace Nec non cibus singulis Balliuis Constabularijs ceterisque dicti dn̄i Regis ministris tam infra libertates quam extra in eodem Con̄i Salutē Quia A. B. de Poundon in com̄ praedict ' Laborer venit corā me in venit sufficientē securitatur qd'ipse comparebit ad proximā generalē Sessionē pacis in com̄ praedicto tenend ' Et quod ipse interim pacē dicti
false déede or writing as aforesaid after the said first day of Iune Stat. 5. El. 14 11 This Act or any thing therein contained Persons not chargeable by this statute shall not extend to charge any Ordinarie or any their Commissaries Officials Registers or any other their Officers or Ministers with any the offences aforesaid for putting their seale of office to any will to be exhibited vnto them not knowing the same to be false or forged or for writing of the said will or probate of the same Neither shall this Act or any thing therein contained extend or be hurtfull to any Proctor Aduocate or Register of any Ecclesiasticall Court within this realm for the writing setting forth or pleading of any Proxie made according to the Ecclesiasticall lawes or customes heretofore allowed and vsed by the Ecclesiasticall Courts of this Realme for the apparance of any person or persons beeing cited to appeare in any of the said Courts Ecclesiasticall Officiall Nor to any Archdeacon or Officall for putting their authentique seale to the said proxies or proxie Nor yet to any Iudge Ecclesiasticall for admitting of the same but they and euerie of them may hereafter doe in all poynts concerning the same as they and euerie of them might lawfully haue done before the making of this Act. Neither shall this Act extend to any Attourney Attourney Lawyer or Counsellor Counsellor that shall for his client plead shew forth or giue in euidence any false and forged déed charter will court roll or other writing for true being not partie nor priuie to the forging of the same for the pleading shewing forth or giuing in euidence of the same Neither shall this Act extend to any person or persons Exemplification that shall plead or shew forth any deed or writing exemplified vnder the great Seale of England or vnder the great seale of any other authentique Court of this Realme A Iudge A Iustice Nor shall extend to any Iudge or Iustice or other person that shall cause any seale of any Court to bee set to any such déed charter or writing inrolled not knowing the same to bee false and forged Any thing in this Act to the contrarie notwithstanding Forging of a customarie booke 12 If one or more tenants of a Mannor 15. Eliz. Dy. 322. wherein there bee seuerall Copiholders doe make a customarie booke or roll of the same Mannor in parchment or paper and doe insert therein diuers customes whereof some be false and doe set his or their owne seales thereunto and the seales of some other Copiholders of the same Mannour and the same customarie booke or roll is intituled and pretended to be collected renewed set forth and allowed by the Lord and all the Freeholders and Copiholders of the said Mannour where in truth it is set forth and made without the priuitie or consent of the Lord of the same Mannour or of the residue of the Copiholders thereof This is a forgerie and false making of a writing sealed to the intent to benefit themselues and to disinherit the Lord of the Mannor and therefore punishable by the open and shamefull punishment contained in the foresayd Statute of 5. Elizab. The proces to leuie costs and damages of a forger 13 Whereas the sayd Statute of 5. Elizabeth hath ordayned 15. Eliz. Dyer 323. That if any person shall bée conuicted of forging of a false deed vpon a bill or information to bee exhibited into the Court of the Starre chamber according to the order and vse of the Court hee shall pay vnto the partie grieued his double costs and dammages to bee assessed in the same Court Therefore when any man is attainted of Forgerie in the Starre chamber for the recouerie of the double costs and dammages taxed by the Court a writ in English shall bee made and directed to the Sherife of the Countie where the offendor doth dwell reciting the Statute and the conuiction commaunding the Sherife to leuie the said costs and dammages of the goods cattels and profits of the lands and tenements of the offendor and to bring the money into the Starre chamber Which writ shall bee sealed with the great Seale and vnder the Teste of the King And there by the order of the Court the money shall be deliuered to the partie grieued The kings pardon of forgerie 14 If a man be attainted of Forgerie in the Starre Chamber 15. Eliz. Dyer 323. Co. li. 5. 50. or in an action of Forger of false déeds founded vpon the said statute of 5. Eliz. the king may pardon his corporall punishment of setting vpon the pillorie flitting his nostrels and perpetuall imprisonment viz. so much of the penaltie of the sayd statute as is to be inflicted for a terrour or example to his people for that hée onely hath interest therein as hée hath in the issues and profits of the said offendors lands And as he may pardon the second offence of him who béeing once conuicted of forgerie doth eftsoones commit the same againe and thereby doth become a felon And as the plaintifes release discharge or discontinuance by the words of the said statute shall discharge the defendants iudgement or execution touching such costs and dammages as the plaintife should haue had against the defendant So may the kings pardon discharge the same defendant of any penaltie or forfeiture that the same statute doth giue vnto him which be the corporall punishments and the issues and profits of the defendants lands 23. El. Dy. 302. 15 Whereas the said Statute of 5. Elizab. hath ordained Forging of Testament That if any shall forge the will of any person in writing to the intent c. That then hée shall be punished as is aforesaid Yet if one do forge the Testament of another person whereby any lease for yeares shall bée conueyed hée is within the danger and penaltie of the said statute though no mention bee made in the statute of a Testament and he shall be charged onely in respect that hée hath forged a writing sealed But of a will concerning fréehold or inheritance there is speciall mention made in the same statute 12. Eliz. Dyer 288. 16 If a Clerke doe write the will of another man which is deadly sicke and after the Testator is become speechlesse Inserting more in a will than is directed and past memorie doth insert some article or clause in the same will which the Testator did not direct him to doe yet this is no forgerie punishable by the sayd statute of 5. El. nor within the meaning of the makers of the same For the principall déed or writing which was the wil of the Testator was not forged neither was any false déed charter writing or will though the article or clause inserted therein hauing no sufficient warrant was false and therefore not the Testators wil nor part thereof nor to be proued therewith 17 And though the said statute of 5.
or Elegit or by Action of Debt against euery person of the petit Iurie so forfeiting and against his Executors and Administrators hauing then sufficient goods of their said Testator not administred And euery of the said petit Iurie shall seuerally make fine by the discretion of the Iustices before whom the said false Serement shall be found after their seuerall offences defaults and sufficiencie of them And those of the petit Iurie so attainted shall neuer be after of any credit nor their oath accepted in any court And if a false verdict be giuen in any action suit or demaund before any Iustice or Iudge of Record Attaint wher the thing doth not extend to xl l. of any thing personal as debt trespas and other like which shall be vnder the value of xl pounds then the partie grieued shall haue an Attaint And if the petit Iurie be attainted then euery of them shall forfeit fiue pounds to the King and the partie after the forme aforesaid and also shall make fine by the discretion of the Iustices And euery person that may dispend fiue markes by the yeare of fréehold out of auncient demesne or is worth an hundred markes in goods is able to passe in the same Attaint 18 The Law doth so hate Periurie and so much endeauour to extirpate the very roote thereof that shée doth sometime punish it in the onely will and intention of a man though that will neuer come to effect so that the same will and meaning may bée laid open vnto her The meaning to commit periurie punished by due proofe as it appeareth by a braunch of the before specified Statute of Anno 11. Hen. 7. St. 11. H. 7. 21. whereby it is ordained That if it be found by the graund Iurie that the petit Iurie haue giuen a true verdict in any of the courts of the citie of London in a suit whereupon an Attaint is brought then the graund Iurie shall haue authoritie to inquire if any of the petit Iurie hath receiued any summe of money or other reward or promise of money or other reward of the named defendants or tenants in the same Attaint or of any other person by the commandement couin or assent of any of them for the intent of their verdict giuing whereupon the same Attaint is grounded And after any such corruption by the said graund Iurie found Decies tantuÌ„ then the Iuror that is so found defectiue in taking money or rewards c. shall pay to the plaintife named in the said Attaint tenne times the value of the summe or other reward so taken or promised and shall suffer imprisonment without Baile or Maineprise sixe moneths or lesse by the discretion of Mayor and Aldermen of the said citie and shall bee disabled for euer to bée sworne in any Iurie before any temporall Iudge And such defendant and tenant in the same Attaint shall pay to such vse as other penalties bee forfeited within the same citie tenne times the value of the summe of money or other reward by him so giuen to any of the said petit Iurie and shal be imprisoned without Baile or Maineprise during sixe moneths or lesse by the discretion of the said Mayor and Aldermen And in like sort St. 34. E. 3. 8 38. E. 3. â—2 and for the same cause the Statutes of Anno 34. Edw. 3. 38. Edw. 3. were prouided whereby it was enacted That if any Iuror sworn in Assises or other Enquests to be taken betwéene the King and the partie or betwéene partie and partie doe by himselfe or any other take any thing of the plaintife or defendant to giue his verdict and thereof is attainted at the suit of the partie which will sue for himselfe or for the King or of any other person entring his plaint by Bill immediately before the Iustices before whom the Iurie was sworne the said Iuror shall pay tenne times so much as he hath receiued Decies tantuÌ„ And all those which bee Imbraceors Imbraceors to lead and procure such Enquests in the Countrie to make a gaine and profit thereof shall be punished as the Iurors And if the Iuror or Imbraceor so attainted haue not wherewith to make recompence in forme aforesaid he shal be one yeare imprisoned which imprisonment shall not be pardoned for any fine and the partie grieued may haue his action before other Iustices if hée will But no Iustice or other officer shall inquire of office vpon any of the points of this Statute but onely at the suit of the partie and of others as aforesaid By which foresaid Statutes it doth appeare that the Law doth punish Periurie not onely in such Iurors as doe commit it but also in those persons who bée the Imbraceors Perswaders or Procuters of it and not onely in those who doe commit or procure it but likewise in those who giue or take rewards to haue it done though it bée neuer effected for shee accounteth that when a man hath giuen his heart leaue for a reward to bée sworne it is the reward he respecteth in his oath and not the truth of the cause which reward will lead him blindfold into the dungeon of Periurie and therefore hee deserueth to be punished as a periured person S. Maintenance c. 6. 19 Because diuers did resort to Iurors in Wales and the Marches thereof and suborned them to acquit Murderers Felons and Accessories openly knowns St. 26. H. 8. 4 therefore by a Statute made Anno 26. H. 8. it was enacted That forthwith vpon the charge giuen to any Enquest to bee taken and sworne before any Iustices Steward Lieutenant or other officer within Wales or the Marches of the same of for or vpon any Trauerse against the King or the triall of any Recognizance broken or any other forfeiture forfeited to the King or of for and vpon the triall of any Murderer felon or accessorie of felonie or murder an officer shall be sworne for the kéeping of the same Iurors And if the same Iurors doe acquit any such felon murderer or accessorie vpon whose triall they shall be charged or giue any vntrue verdict against the King vpon the triall of any Trauerse Recognizance or other forfeiture The punishment of periurie committed by an enquest in Wales contrarie to the good and pregnant euidence ministred to them by the persons sworne before the said Iustice Steward Lieutenant or other officer Or that the said Iurors or any of them doe eate drinke or speake to or with any person or persons than to such as be sworn with them or otherwise misdemeane themselues after they be sworne and before they haue giuen their verdict Then the Lord President or other of the Councell of the Marches for the time béeing vpon notice or complaint thereof to be made shall not onely haue authoritie to call such Iurors before them but also the same Iusticiar Steward or other officers afore whome any such acquitall vntrue
The penaltie for committing of wilfull periurie vnlawfull procurement sinister perswasion or meanes of any others or by their owne Act Consent or Agreement shall wilfully and corruptly commit any manner of wilfull periurie by his or their deposition in any of the Courts before mentioned or béeing examined ad perpetuam rei memoriam Then euerie person or persons offending shall for his or their said offence loose and forfeit twentie pounds to the King and the partie grieued hindered or molested by reason of any of the offences before mentioned that will sue for the same by A. B. P. or I. in any of the Kings courts of Record wherein no W. E. P. or I. shall be allowed and shall haue sixe months imprisonment without Baile or Maineprise And the oath of such person or persons so offending from thenceforth shall not bee receiued in any court of Record within England or Wales or the Marches of the same vntill such time as the iudgement giuen against the said person or persons shall be reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued to recouer his or their dammages against such person and persons as did procure the said iudgement so reuersed to be giuen against thē by action to be sued vpon his case And if the said offendor haue not any goods or cattels to the value of xx l. then he shall be set on the Pillorie in some market place within the shire citie or borough where the said offence shall be committed by the Sherife or his ministers if it be without any citie or towne corporat and if it be within any citie or towne corporat then by the head officer or officers of the same citie or c. or by his or their ministers there shall haue both his eares nailed and from thenceforth be discredited disabled for euer to be sworne in any of the courts of Record aforesaid vntill the iudgement shall be reuersed and thereupon shall recouer his dammages in manner and forme before mentioned In what courts Periurie shall be punished 23 As well the Iudge and Iudges of euery such of the said courts where any such suit is or shall be Sta. 5. El. 9. and whereupon any such periurie is or shal happen to be committed as also the Iustices of Assise and gaole deliuery in their seuerall circuits and the Iustices of the peace in euery countie within this realm or in Wales at their Quarter Sessions both within liberties and without shall haue authoritie by vertue hereof to enquire of all and euery the defaults and offences committed contrarie to this act by inquisition presentment bill or information before them exhibited or otherwise lawfully to heare and determine the same and thereupon to giue iudgement award processe and execution of the same according to the course of the lawes of this Realme Proclamatiō of this Statute 24 The Iustices of Assise of euery circuit within this Realme shal in euery countie within their circuits two times in the yeare St. 5. El. 9. viz. in the time of their sittings make open Proclamation of this Statute or of the effect thereof to the intent that no person shal be ignorant of the penalties herein contained Periurie punished in the spirituall court 25 Prouided that this Act or any thing therein contained St. 5. El. 9. shall not extend to any spirituall or Ecclesiasticall court within this Realme of England or Wales or the Marches of the same but all and euery such offendor and offendors as shall offend in forme aforesaid shall and may be punished by such vsuall and ordinarie lawes as heretofore hath bin and yet be vsed in the said Ecclesiasticall court any thing in this Act c. notwithstanding Periury punishable in the Starchāber 26 Prouided that this Act shall not extend to restraine the power or authoritie giuen by Act of Parliament made An̄ 11. H. 7. Sta. 5. El. 9. St. 11. H. 7. 25. to the Lord Chauncelor and others of the Kings Councel to examine and punish riots routs hainous Periuries and other offences which haue vsed to heare and determine such matters in the Starre-chamber at Westminster nor to restraine the power of the Lord President and Councell in the Marches of Wales or in the North nor of any other Iudge hauing absolute authoritie to punish Periurie before the making of this Statute But But they and euery of them shall procéede in the punishment of all offences heretofore punishable in such wise as they might haue done and vsed to do before the making of this Act to all purposes so that they set not vpon the offendors lesse punishment then is contained in this Act. 27 Because by the said statute of 5. Eliz. 9. there is no Ordinance made for the punishment of those Bankrupts who being sworne and examined vpon Interrogatories by Commissioners thereunto authorized shall commit Periurie Nor for the punishment of those witnesses who either by the procurement of others or by their owne consent shall commit Periurie being examined by the said Commissioners touching Bankrupts goods or debts Therefore by a statute made Anno 1. St. 1. Iac. 15. Iac. it was ordained That it shall be lawfull for the Commissioners authorized vnder the great Seale of England or the greatest part of them to take order with Bankrupts bodies lands tenemēts and hereditaments money goods cattels wares and debts to examine the said offendor or offendors vpon such interrogatories touching the lands tenements goods cattels and debts bils bonds bookes of accompt and such other things as may tend to disclose his her or their estate or the secret graunts cōueyances and eloigning of his her or their landes tenements goods money and debts as they shall thinke méet And if therein the offendor or offendors shall refuse to be examined or to answer fully to euery interrogatorie to him to be ministred by the said Commissioners or the greater part of them it shall be lawfull for the said Commissioners or the greater part of them to commit the said offendor or offendors to some strait or close imprisonment there to remaine vntill he she or they shall better conforme him or her selfe And if vpon his her or their examination it shal appeare that he she or they haue committed any wilfull or corrupt Periurie tending to the hurt or dammage of the creditors of the said Bankrupt Periury punished in Bankrupts to the value of tenne pounds of lawfull money of England or aboue the party so offending shall or may thereof be indited in any of the Kings Courts of Record and being lawfully conuicted therof shall stand vpon the Pillory in some publike place by the space of ij houres and haue one of his eares nailed to the Pillory and cut off And by the same statute of Anno 1. Iac. it is further established That if any person or persons other then the Bankrupt either by subornation vnlawfull procuremēt sinister persuasion
officers requisit to be had for the spéed of the said suits which shall do their dueties without any rewards for their counsels helpe and businesse in the same And the same law and order shal be obserued in all such suits to be made before the K. Iustices of his Common pleas Barons of his Exchequer and all other Iust in Courts of Record where any such suits shal be 30 As Maintenance in the cases aforesaid is lawfull and iustifiable Maintenance in respect of kindred or alliance in respect of the parties priuat profit or interest in the thing in question or when it is done without malice or hope of profit vpon a charitable disposition so is it in diuers cases allowable in regard of the linke or bond of nature whereby one person is by loue or dutie tied to another 34. H. 6. 26. 6. Ed. 3. 33. as the father may maintaine his son and heire and giue money of his owne in defence of him or his title or suit for he is bound to find him but so he may not doe for another kinsman And the sonne may maintaine the father and mother and one brother another and one néere kinsman another 21. H. 6. 16. 14. H. 7. 2. 20. H. 6. 1. 19. Ed. 4. 3. 21. H. 6. 16. and one ally another in some cases and in some sort as if a man be impleaded another that is his brother or kinsmā or of his alliance may go to the bar with him stand by him comfort him or he may ride to his counsell with him or he may request a man that is learned in the law to bée of counsell with him in that cause 9. Ed. 4. 32. but he must not retaine that learned man nor giue him any mony of his own to be of counsel neither must he giue or promise money to the Iurors or any of them to giue their verdict for him for then it is vnlawfull maintenance in him so it is in a stranger who hath nothing to do in that cause if he doe goe to the barre with him that is impleaded or do stand by him of purpose for to countenance the cause in question or doe request a learned man in the law to bée of counsell with him or doe giue money to any of the Iurors for their verdict this is vnlawfull Maintenance in him And in the cases aforesayd and all other cases of Maintenance Vnlawfull maintenance is continuall this vnlawfull Maintenance is a continuall Maintenance during that suit vnlesse the partie grieued doe in the meane time release the same But if the same Maintenance bee in respect of alliance and that hee who is supposed to bee the maintainor hath maried the daughter sister néece or other kinswoman of one of the parties to the first suit wherein the maintenance was supposed be he must pleade 6. Ed. 4. that his wife was liuing at the time of the maintenance supposed to be for if she were then dead the alliance betwéene them is dissolued and then he had no cause to maintaine that suit but shal be punished as a stranger And yet in that case 14. H. 7. 2. if the same woman hath any issue of her bodie begotten who may inherit the land of him whose suit that husband of the deceased woman and the father of that issue did maintaine then is the maintenance lawfull in any action brought against the same partie in respect of the kindred and also of the benefit that may come to his owne issue And in a writ of maintenance it is a good plea for the defendant to plead Maintenance in respect of gossiprie that hee was gossip to him whose cause he was supposed to maintaine 6. Ed. 4. 5. for that gossiprie is in law adiudged a kind of affinitie Maintenance in respect the partie could not speake English 31 A. brought a writ of Maintenance against B. and supposed 34. H. 6. 26. 15. H. 7. 2. that the same B. did maintaine L. in an action which he brought against the said L. on the part of the said L. Whereunto the sayd B. pleaded that the same L. was a Dutchman borne out of the Kings obedience and could not speake the English or Latine tongue and therefore being acquainted with B. the defendant who could speake the Dutch tongue he desired him to bring him to some man learned in the law to be of his counsell in that suit and to informe that learned man of the truth of his cause in question whereupon hee brought him to one M. a man learned in the law and opened the truth of his case vnto the said M. as he receiued it from the said L. in Dutch which is the same maintenance And this was adiudged a good plea in barre and a lawfull maintenance for it is a déed of charitie to aid and helpe him who could not helpe himselfe And the Dutchman had no meanes to helpe himselfe being a straunger borne and not vnderstanding the English nor Latine tongue but by the assistance and information of some English man Maintenance in a professor of the Law 32 If a Serieant at law an Apprentice or other Councellor 6. Ed. 4. 5. being retained for his fee doe giue vnto his Client the best counsell that he can for the recouerie or defence of the suit which he vndertaketh according to the ordinarie course of the law or doth enforce the euidence at the barre so much as he can at the tryall of his clients cause this is lawfull maintenance and iustifiable But if he doe pay or promise money to any of the Iurie to giue his verdict for his client or do threaten any of them to be killed beaten 22. H. 6. 6. or otherwise euill intreated if they do giue their verdit against his client or if he do spēd 11. H. 6. 13. or do offer to spend his own mony in defence of his clients cause this is vnlawful mainnance and punishable according to the before rehearsed stat of ann 1. R. 2. for those things he doth not as a lawyer or according to the course of the law nor by the warrant of law but by iniustice and vpon his owne corruption and wrong But in the first specified case if a man that is not learned in the law 22. H. 6. 5 hauing himselfe no interest in the cause in question will declare to the Iurie or to the partie or to his counsell the cause in question and the circumstances thereof as a man learned in the law this is vnlawfull Maintenance in him though hee doe it as well as a man learned in the law for hee doeth it vpon Maintenance where the learned man doeth it for his fee. And so it is if a man that hath land in suit or question will bring and shew his euidences and writings to a Nobleman Fitz. Maint 21. Gentleman or other man of countenance that is not learned in the law and
law doth allow him to doe in respect the sooner to deliuer his seruant from suit and trouble that hée may not loose the benefit of his seruice for the longer he doth lacke his mans seruice the greater is the Masters losse And if the seruant be arrested in any priuiledged place the Master may maintaine him and spend his owne money to deliuer him in respect that otherwise he should loose his seruice for by that meanes he doth maintaine him in his owne behalfe and to auoid his owne hinderance But if the seruant be impleaded in a reall action wherein he may appeare and answer by Attourney and that his owne presence is not requisit 21. H. 7. 40. then the master may not maintaine him therein for that the Master shall receiue no preiudice if the land in question shall be recouered from his seruant And in like sort the seruant may maintaine the Master How the seruant may maintaine his Master in any suit commenced by or against his said Master in all lawfull manner As he may trauaile in furtherance of his Masters suit 19. H. 6. 31. 19. Ed. 4. 3. he may retaine his counsell with his Masters money and shew his counsell or the Iurie vpon the tryall of his Masters cause in question his Masters euidence for he is bound to doe his Master his diligent seruice and that which his Master commaundeth him to do touching his suit is his Masters seruice But that seruant which may iustifie to maintaine his Master in such sort as is aforesaid must be a seruant who is retained with his Master for a yeare 39. H. 6. 5. or some long time and to do all such seruices as he shal be imployed in by his said Master for if he be a seruant onely hired for a day two or thrée or to ride but some one iourney or to do but some one speciall seruice then if he do maintaine his Master or his Master maintaine him in any sort as aforesaid it is vnlawfull maintenance in him But if in either of the cases aforesaid the Master for his seruant or the seruant for his Master shall giue or promise money or other reward to any of the Iurie to giue his verdict or do threaten any of them to be killed beaten maimed dispossessed of their farmes 12. E. 4. 14. 19. H. 6. 31. or do giue his owne money to the Sherife to arrest the other partie to that suit then it is punishable by action of Maintenance in him that shal so offend ⧠Deceit Couin Collusion Fraud 1 DEceit Couin Collusion and Fraud bée great offences to the Commonweale and speciall impediments of the iustice and peace of the Realm wherof there be so many and of so generall sorts and kinds as there be wicked deuises in the hearts of men and lewd persons to put them in practise And it were a worke almost as infinite to diuulge the particulars and to reduce into writing all the Deceits The multitude and enormitie of Deceits and Frauds Couins Collusions and Frauds which in time haue béene inuented and effected as it were to poise the weight of the sands of the sea or to decipher the number of the starres of the element for by how many meanes a man may trust by so many and more hee may bee deceiued And therefore I will vndertake to treat of no more than our common and statute lawes haue detected and accused to bée deceits frauds c. and amongst others but of those which the makers expositors and Sages of our lawes haue noted to be chiefely offensiue and most opposite to the due execution of iustice vpon which this peace whereof I doe write doth chiefely depend For the wisedome of this Realme first in the making of our lawes and after in expounding them haue bent their chiefe care to crush and beat downe Deceit and Fraud plainely séeing that the greatest part of the crimes which bée committed in this kingdome from the highest treason to the smallest trespasse haue some intermixture with them And that if they with their dependants could bée fully extirpat both iustice and peace would more brightly flourish And notwithstanding they doe not begin their quarrels with rapier and dagger sword and buckler as some other of the offences before mentioned do yet is there grafted in the root of them as much gawle and venim and more durable and bitter extremities do spring from them than â—oe ensue by the Canon shot the light horsemans staffe or the footmans bill For though some part of euerie kings raign hath had a calme and repose from war and hostilitie yet neuer any age or yeare was cléerely fréed of falshoods corruptions deceits and frauds 2 The wisedome of the Realme perceiuing how necessarie a thing iustice is and how opposite and repugnant vnto it deceits and frauds bee doth therefore specially prouide to make choyce of such men of all sorts The reward for paines and punishments for deceit of officers towards the law to execute the same iustice as she is persuaded by their learning and experience can by their vertue integritie will performe to euerie person his due and tread beat downe fraud whose pains she doth requite with reuerend respect liberal rewards titles of credit large priuiledges But if she do find any of the said officers whom she putteth in trust to deceiue her expectation and to practise falshood or guile then she doth as sharply punish them as she did before munificently wage them As appeareth by the stat of An. 8. St. 8. R. 2. 4. R. 2. wherby it was ordained A Iudge A Clerke That if any Iudge or Clerke do make any false entring of a plea rase any rol or change any verdict whereby any person receiueth disheritance he be thereof conuict before the K. and his Counsell he shal be punished by fine ransome at the K. pleasure and satisfie the partie And for the recouerie of the inheritance the partie shall sue by writ according to the law And for the auoyding of corruption which may happen in officers in those courts places wherein there is requisit to be had the true administration of iustice to the intent that worthy persons should bée preferred to the places of iustice none other should attaine the same for fée or reward by a stat made An. 5. Stat. 5. 6. E. 6. 16. 6. E. 6. it was enacted No office of iustice shal be sold or bought That if any person bargaine or sell any office or deputation of office or take any mony fée reward or other profit directly or indirectly or take any promise agréement couenant bond or assurance to receiue or haue any mony reward c. for any office or the deputatioÌ„ of any office or any part of any of theÌ„ or to the intent that any person shold enioy any office or the deputation of any of theÌ„ or any part or parcel of any
of them which office or any part of it doth concerne the administration or execution of iustice or which shall cōcern any clerkeship to be occupied in any court of record wherin iustice is to be ministred then he so offending shall not loose onely all his right estate which hée shall then haue of in or to the sayd office or deputation but also he that shal giue or promise any money fée or reward for any such office or deputation shall immediatly vpō the said gift or promise be adiudged a disabled person in the law to all intents to haue or enioy the said office or deputatiō And euerie such bargain sale bond couenant promise and assurance shall bée void to and against him by whom the same is made But this Act shall not be preiudiciall to the chiefe Iust of the K. Bench Common pleas or to the Iust of Assise but they may do in euerie behalfe concerning any office to be granted by any of thē as they might haue done before the making of the same Act. And because the prouidence of the realm did conceiue some iealousie suspition in those learned men in the lawes of this realm who by their owne means industrie for their own cōmoditie and ease obtained to be Iust of Assise in the counties where they were borne or did dwell and did feare that affection fauor towards their kinsmen allies neighbors and friends might sometime allure thē to decline from the beaten path of iustice therfore by one stat made An. 8. St. 8 R. 2. 2. St. 33. H. 8. 14. R. 2. another An. 33. H. 8. it was enacted No man shal be iustice of Assise in his owne countie That no Iustice nor other man learned in the laws of this realm shal exercise the office of Iust of Assise within the countie where he was borne or doth inhabit vpon pain to forfeit for euery offence done contrary to this act C. l. to the K. him that will sue by B. P. I. or actiō of debt wherin no W. E. P. But this stat doth not extēd to any Clerk of Assise associat to any Iust of Assise nor to the Iustices Iustices Clerks or Clerk of Assise withithin the Duchie and County Palantine of Lancaster nor to the I. of the one Bench or the other for taking hearing determining of Assises in the said courts nor to any Iust that shal take any Assise vpon adiournment for difficultie of the same nor to any Maiors Sherifes Recorders Stewards Bailifs Sutors or other officers in any citie borough or towne but they may be I. of Assise of Fresh force and of other Assises in the same towne c. where he or they do dwell or were borne as they might haue bin before And in like sort by the stat of W. 1. A Serieant A Pleader it was established That if any Serieant Pleader St. 3. Ed. 1. 2 or other do any deceit in the K. court or do consent therunto to beguile the court or the partie is therof attainted he shal be imprisoned a yeare a day and being a counsellor he shal not any more be receiued to plead in the K. court for any man and if he be any other than a pleader he shal be imprisoned as aforesaid And if the trespas require a greater punishmēt it shal be at the K. pleasure And by the stat of An. 10. A Philozer An Exigēter H. 6. An. 18. H. 6. it was enacted That if any Philozer Exigenter St. 10. H. 6. 4 18. H. 6. 9. or any other officer of the K. Bench or Common pleas do make any entry in any suit that the plaintife in the same suit hath offered himselfe in his owne proper person except the pl. in the same suit before such entrie be made do appeare in his own proper person before some of the Iust of the place where the plea is depēding there be sworn vpō a book that he is the same person in whose name the said suit is pursued or that some other credible person of the K. counsell wil take such oth for him the said philozer exigenter c. shal forf xl s. to the K. euery time that he shal be attainted by the examinatiō of any of the I. of the same place where any such entry or record is 3 And because Atturneies be also necessary mēbers in the cōmonweale special means to solicit further the executiō of iustice therfore the law hath had a careful regard that they should be men of integrity vertuous and of good name and hath prouided seueral stat to punish such of thē as shall cōmit any notorious falshood guile fraud slacknes ignorance omissiō or contempt of dutie As by the stat of An. 4. H. 4. it was ordained St. 4. H. 4. 18 That all Atturnies shal be examined by the Iust by their discretiōs their names shal be put in the rol they that be good vertuous learned of good name shal be receiued sworne wel truly to serue in their offices specially that they make no suit in a forein coūty And if any such Atturney be notoriously found in any default of record or otherwise he shal forsweare the court neuer after be receiued to make any suit in the K. courts And this ordināce shal be performed in the Exchequer after the discretiō of the treasurer the barōs there And accordingly by one other stat made an 3. Ia. it was enacted St. 3. Iac. 7. That none shall from henceforth be admitted Atturneies in any of the K. courts of record at West but such as haue bin brought vp in the same courts Who shal be Atturneyes or otherwise wel practised in soliciting of causes Soliciters haue bin foūd by their dealing to be skilful of honest dispositiō and none to be suffered to solicit any cause or causes in any of the courts aforesayd but only such as are known to be men of honest dispositiō And no Atturney shal admit any other to follow any suit in his name Following a suit in anothers name vpō paine that both the Atturney he that followeth the suit in his name shal each of thē forf for such offence xx l. to the K. and the party grieued to be recouered in any of the said courts of record by A. B. P. I. wherin no W. E. P. c. And the Atturney in such case shal be excluded frō being an Atturney for euer hereafter By the stat of an 18. H. 6. it was enacted St. 18. H. 6. 9 That in all cases wherin proces of Capias Exigēt lyeth if the Atturney haue not his warrant of record the same terme that the Exigent is awarded he shal lose xl s. to the K. if he be attainted therof by examinatiō of the Iust And by the stat made an 32. H. 8. St. 32. H. 8.
30. St. 18. El. 13. an 18. El. it was established That euery such person which shal be Atturney for any other person or persons being demandant or plaintife tenāt or defendāt in any actiō or suit cōmenced in any of the K. courts of record at West plead to an issue in the same shal deliuer or cause to be deliuered his lawfull warrant of Atturney to be entred of record for euery of the said actions or suits wherin he is named an Atturney to the officer or his deputy ordained for the receit or entring therof in the same terme whē the issue is entred of record in the said court or before vpon paine of forf of x. l. for euery default for not deliuery of the said warrāt the one moity to the K. his heirs successors the other to such officer to whō or in whose office the same warrāt shold be deliuered entred or filed to be rec by A. of det B. P. or I. wherin no W. E. P. c. also he shal suffer such imprisonmēt as by the discretiō of the I. of the Court where any such default shall be made shall be thought good Fit N. B. 9 6 If a man make an Atturney in a real action brought against him Deceit by an Atturney after by couin agréed vpon betwéene the demandant and the said Atturney the same Atturney maketh default whereby the tenant doth loose his land then the same tenant who lost his land may haue a writ of Deceit against the Atturney And so it is if a man bring an action of Trespasse against two others Register fo 113. Fit N. B. 96. and the plaintife and an Atturney by couin agréed vpon betwéene them doe cause two straungers not parties to the writ to come into the court and to say that they be the same two defendants named in the writ and that they do constitute the same man to be their Atturney in that suit wherupon the same Atturney as Atturney to the defendants named in the writ do plead to an issue and after suffer the enquest to passe by his default by which meanes the plaintife doth recouer against the defendant in this case they who be indéed defendants and against whom the same action of Trespasse was brought may haue a writ of Deceit against the same Atturney that appeared as Atturney for them and shall recouer their dammages 10. Ed. 4. 9. 20. Eliz. Dyer 367. If an Atturney be informed by his client to plead a false plea which he cannot in conscience plead he may procure this Entrie to bée made Quod non fuit veracitér informatus ideo nihil c. to defend him in a writ of Deceit brought against him by his said client If an Atturney do sue forth a Capias where there was no originall writ before 20. H. 6. 39. he shal be committed to prison and thrust out of his place in that and all other Courts 4 As the law doth punish her Officers who do practise or commit any deceit or fraud in stead of truth in place of iustice The law reiecteth fraudulent acts so doth she renounce and condemne all acts of greatest importance if they be intermixt with guile and falshood For though Iudiciall acts as Fines Recoueries Warranties deedes inrolled c. being of their owne natures iust and lawfull and meanes to settle titles to appease controuersies and to yeeld each person his due bee therefore greatly respected and fauoured in her sight yet if any of them be deuised or executed by couin or to deceiue then she doth vtterly reiect them and adiudge them void Co. li. 3. 77. As a man was Lord of the Mannor of D. wherein there was a tenant which had some parcels of freehold land in fee simple the Lord demised certaine lands parcell of the demesnes of his said Mannor to the said freeholder for xxj yeares reseruing certaine rent and demised some other lands parcell of the said demesnes to the same fréeholder at will reseruing another rent and graunted by copie of Court roll certaine other lands parcell of the same Mannor to the sayd freeholder for the terme of life according to the custome of the sayd Mannour reseruing a third rent And after the same freeholder demised all the sayd lands which hee held by lease for yeares at will and by copie in D. to a straunger for the terme of life and then the same freeholder leuied a fine with proclamations of so many messuages so many acres of land medow pasture c. as he had by lease for yeres at will by copie of Court roll of his owne inheritance in D. by couin fraud to barre the lord of his inheritance All the proclamations were made and the fiue yeres were past the same fréeholder continued in possession of the land which was graunted to him by lease for yeres at will and by copie and paid to the Lord yerely his seuerall rents for the same And after the stranger to whom the fréeholder made the lease for life died and the lease which the Lord made to the fréeholder for xxj yeares expired And then the same freeholder claimed the inheritance of all the land which the Lord demised vnto him for yeares at will by copie intending to barre the Lord thereof by force of the fine with proclamations the fiue yeares past But this fine was adiudged void against the Lord and that it did not barre him to clayme and enter vpon his land for that it was leuied by him who had but estate in those lands for yéeres at will or by copy of court Roll and that neither had nor could pretend any title to the inheritance of the land but only by fraud practised the disheritance of the leassor And whereas the meaning of the makers of the statute of Anno 4. H. 7. St. 4. H. 7. 24 was as it may appeare by the preamble of the same that fines ought to be of the greatest strength to auoid strifes and debates when the lessée for yeares at will or copyholder shall make an assurance by fraud and couin A fine leuied of land to defraud the right owner therof to the intent a fine may be leuied to disherit the right owner of his land this is not a meanes to auoid or appease strife but to begin it where none was before and therefore the same statute did not intend to ratifie such an estate begun by deceit And further the meaning of the makers of the said statute was not That he who could not leuie a fine of this land in respect of the debilitie of his estate therin should be enabled by his owne practise and deceit to leuie a fine therof to barre him who had a lawfull title therein and a right to leuie a fine thereof And the same lessée for yeares tenant at will and copyholder contriued his fraud in so secret manner that by his couert practise he depriued his
the foresaid ordinances in any point of the same shall lose to the partie in this behalfe endammaged or grieued his treble dammages and shal forfeit xl l. at euery time that any do the contrarie in any point of the same whereof the king shall haue the one halfe to be imployed onely to the vse of his house the party that will sue The warden of the Fleete the other But the Warden of the Fléet and of the K. palace at West shall not be preiudiced by this ordinance in his dutie of his office Extortion in a Sherife for sparing of a Iuror 7 To the intent that the Sherife nor any of his officers should take any reward for the sparing to returne any Iuror and by that meanes commit extortion by a stat made anno 27. El. it was prouided That if any Sherife St. 27. El. 6. Vndersherife Sherifes deputie Sherife or Vndersherifes Clerke or any Bailife of Franchise shall receiue haue or take by himselfe or any other any summe of money reward or other profit directly or indirectly or do take any promise make any agréement or assent to haue any summe of money reward or other profit directly or indirectly of any person or persons for the sparing not warning or not returning of any person to be sworn as a Iuror for the tryal of any issue ioyned in any of the courts of the K. Bench Common Pleas and Exchequer or before any Iustice then euery Sherife c. so offending shal forfeit for euery such offence v. l. to the K. and I. to be recouered in any Court of Record by A. B. P. I. c. wherein no W.E.P. c. How much Sherifes may take for seruing of an execution 8 And for that our later age thought it as expedient to preuent extortion or oppression in Sherifes and other their Officers in seruing of executions as the former age did in making of arrests or attachements c. and to the intent that the Sherife and his Officers might know what to demaund and take for the seruing of an execution without danger of extortion and that the sutor might be ascertained what to offer and pay therefore without any scruple of receiuing iniurie by a statute made An. 29. Eliz or rather An. 28. St. 29. El. 4. St. 28. El. 4. Eliz. it was enacted That it shal not be lawful to or for any Sherif Vnder-sherife Bialife of Franchises or liberties nor for any of their or either of their officers ministers seruants Balifes or Deputies nor for any of them by reason or colour of their or either of their offices to haue receiue or take of any person or persons whatsoeuer directly or indirectly for the seruing and executing of any extent or execution vpon the body lands goods or chattels of any person or persons whatsoeuer more or other consideration or recompence than in this Act is and shall be limited which shall be lawfull to bee had receiued and taken viz. twelue pence of and for euery 20. shillings where the summe excéedeth not an hundred pounds and sixe pence of and for euery 20. shillings being ouer aboue the said summe of an hundred pounds that he or they shall so leuy or extend and deliuer in execution or take the body in execution for by vertue and force of any such extent or execution whatsoeuer vpon paine penaltie that all and euery Shirife Vndershirife Baylife of Franchises c. which at any time shall directly or indirectly doe the contrary shall loose to the party grieued his treble dammages shall forf xl l. of lawful English money for euery time that he they or any of them shall do the contrary to the Q. I. to be recouered by A. S. B. or I. wherein no W.E.P. Prouided alwaies Execution within cities or townes corporat that this act shall not extend to any fées to be taken or had for any execution within any city or towne corporat St. 2. H. 4. 8 9 By the stat of An. 2. H. 4. it was established Extortion in the chirographer of the common place That the Chirographer of the common place nor his fermor deputy or lieutenant shall not take any more then iiij s̄ for any fine leuied in the same court And if the fermor deputy or lieutenant do take any more he shall forf his office be excluded the same court suffer one yéeres imprisonment pay to the party grieued his treble damages and the party grieued shall haue his suit before the same Iustices Sta. 33. H. 8. 39. 10 By the stat of Ann. 33. H. 8. it was enacted Extortion in auditors or their clerkes That if any auditor of the Exchequer Duchy of Lancaster court of Wards and Liueries or any of his clerkes or any other to their or any of their vse shall take for the inrolment of any letters patents decrées of the same courts grants or indentures of leases or for the allowance of the same aboue 3. s̄ 4. d. he so offēding shal forf 6. s̄ 8. d for euery peny that he taketh aboue the foresaid summe to the K. I. c. to be recouered by A. I. wherein no W.E.P. c. And if any person doe offer to any such auditor any such letters patents decrées or leases to be inrolled hée shall inroll the same or as much thereof as shall appertaine to his office St. 33. H. 8. 39. 11 By the same stat of An. 33. H. 8. it was moreouer ordained Extortion in the kings receiuers That euery receiuer of the Exchequer Duchy of Lancaster court of Wards Liueries which shall pay to any person an annuity pention or other rent shall if the same person will vpon the receit thereof deliuer vnto him a sufficient acquittance sealed signed testifying the same receit receiue the same without taking any reward therefore vpon paine to forf for euery penny or pennyworth receiued 6. s̄ 8. d. And if the party do not deliuer such a sufficient acquittance but that the receiuer or his clerke doth make the same he shall haue therefore 4. d. and if he take aboue 4. d. he shall forf for euery penny or pennyworth so taken 6. s̄ 8. d. And if any Treasurer Receiuer or Minister accomptant Extortion in them who doe pay fées pentions c. or their deputies which shall pay to any person any fée annuity pention dutie warrant or rent do retaine receiue or take of the party to whom he shal pay the same in way of reward or otherwise aboue 4. d. for euery l. that he shal pay he shal forf 6. s̄ 8. d. for euery penny or pennyworth that he shall receiue ouer to the party grieued to be recouered by A. B. or P. wherein no W. E. or P. c. 12 By the stat of An. 26. H. 8. it was ordained Extortion in officers of the Exchequer That if any Officer of the exchequer do
that he did cause some lawfull punishment to be inflicted vpon certaine of them for their crimes notwithstanding all these or such like misdemeanors be neither Treason nor Felony by the Law but a Riot and yet in respect of the basenesse of the parties which committed this wrong of the cause for the which they put it in practise of the worthinesse of the person and of his place vpon whom it was executed of the barbarous course taken in the performance therof of the perillous exāple giuen to other malefactors these riotors deserue to bée censured with a much sharper punishment then the former For as there be no bounds obserued by leud and wicked persons of their outrages so be there no certaine means or limits assigned of their punishments but the said most honourable Court of estate may draw forth his Maiesties sword of iustice and first punish the said offences according to the particuler lawes and statutes prouided therfore and then euery person transgressing by himselfe according to the circumstance of his demerits as partly may appeare by the statute of anno 3. H. 7. St. 3. H. 7. 1. which expresseth some parts of the authority giuen to the Lords of the said Court and more by a branch of the statute of Magna Charta whereby it is enacted St. 9. H. 3. 14 That euery fréeman shall be amerced viz. punished for reasonable cause according to the quantity of his offence And further by the statute of Anno 33. H. 8. St. 33. H. 8. 1 which giueth the lords of the said Court of Starre-chamber authority to punish those who by counterfeit letters or tokens shall get other mens goods into their hands by imprisonment setting vpon the pillory or other corporall paine whatsoeuer except death ⧠Treasons 1 CRimen lesae Maiestatis What is Treason in our English tongue called Treason is a great offence done to the Maiesty of gouernement and the peace of the land which the wisdome of this Realme hath from age to age so much hated and abhorred that they haue persecuted those that were guiltie therin with most violent and vntimely death and with extreame and seuere tortures they haue ordained that an offendor therein shall be hanged and cut downe aliue that his bowels shall bée cut off and burned in his sight that his head shall bée seuered from his bodie that his quarters shall bée diuided asunder and disposed at the Kings pleasure and made food for the birds of the aire or the beasts of the field and that his wife and children shall be thrust out of his house and liuings that his séed and blood shall be corrupted that his lands and goods shall be confiscated and as by the statute of 29. H. 6. 1. it is ordained of the Traitor Iohn Cade he shall be called a false Traytor for euer And as our respectiue and considerat forefathers haue deuised to yéeld vnto those grieuous offendors Legem talionis and to teare their bodies lands and goods who doe practise to rent and pull asunder this Maiestie of gouernement by destroying the head or such as are like to be the principall succéeding members thereof or by diuiding the bodie into parts or by weakning the force and strength thereof or by subuerting the chiefe Magistrats of iustice or by counterfeiting staining or blemishing of the peculiar and royall Ensignes Cognisances and Sinewes thereof so haue they béene carefull and prouident that there should be no greater number of those dreadfull sharpe and bitter lawes than vrgent necessitie for the preseruation of that Maiestie of gouernment required And because it was in former times greatly doubted and ofttimes called in question amongst the Sages of the Realme and learned in the lawes which offences were by the common law high Treason and which not and which were petit Treason and which not and seuerall men were of seuerall opinions therein and to the intent that al future ages might know and be more vigilant to eschew the penalties thereof King Edward the third at his Parliament begun at Westminster the thirtéenth day of Ianuarie St. 25. E. 3. 2 in the 25. yere of his raign at the request of his Lords and petition of his Commons made a declaration thereof in manner as hereafter followeth viz. It is high Treason where a man doth compasse High treason or imagin the death of our Soueraigne Lord the King or of our Ladie the Quéene his wife or of their eldest sonne and heire or if a man doth deflower the Kings wife or the Kings eldest daughter being vnmaried or the kings eldest sonne and heires wife or if a man doe leuie warre against our Lord the king in his Realme or be adherent to the kings enemies in his Realme giuing to them aid and comfort in his Realme or else where and thereof be probably attainted of open deed by people of their owne condition And if a man do counterfeit the Kings great Seale or his priuie Seale or his money which offences Bracton doth terme Crimen falsi And if a man bring false money into this Realme counterfeit to the money of England knowing the money to be false Bracton de Corona cap. 3. to marchandise or make paiment in deceit of our Lord the King and his people And if a man kill the Chauncellor Treasurer or the Kings Iustice of the one Bench or the other Iustices of Eire and of Assises and all other Iustices assigned to heare and determine beeing in their places doing their Offices And it is to bée vnderstood that in the cases aforesaid it ought to bee adiudged Treason which extendeth to our Lord the King and his royall Maiestie And of such Treason the forfeiture of the escheat doth appertaine to our Lord the King as well of the lands and tenements holden of others as of himselfe And moreouer there is another manner of Treason Petit treason that is to say When a seruant killeth his Master or a wife her husband or when a secular or religious man killeth his Prelat to whom he oweth faith and obedience And such manner of Treason giueth the escheats to euery Lord of his owne fée And because many other cases of like Treason may happen in time to come which a man cannot thinke of nor declare at this present It is accorded that if any other case supposed to be treason that is not before specified doth happen of new before Iustices the Iustices shall stay without proceeding to iudgement of Treason vntill the case be declared and shewed before the King and his Parliament whether it ought to be adiudged Treason or other Felonie And in case any man of this Realme doe ride armed openly or secretly with people armed against another for to kill or rob him or to take and detaine him vntill he hath made fine and ransome to be deliuered it is not the King or his Counsels wil that in such case it shall be adiudged Treason but it shall be
An. 38. H. 8. Bro. Treason 2. for ioyning the Armes of England before the Conquest and the Armes since to his owne Armes for some other offences Quaere within which words of the first rehearsed Statute of 25. E. 3. or of any other Statute at the time of his arraignment in force that offence was comprised and made Treason S. Triall by Peeres 2. ⧠Homicide HOmicide is a word compound and is deriued of these two words Bâ—acton de corona viz. hominis cedium and the most apt and proper definition thereof is when one man or moe men doe kill another man for if a man be killed by a dogge a beast or other thing it is not properly termed homicide The said homicide may be committed by seuerall meanes viz. by iustice Homicide by iustice as when a Iudge doth command or pronounce his sentence that a man attainted by course of law shal be put to death By necessitie Homicide by necessitie as when one man killeth an other with griefe and sorrowe of minde thereby to deliuer himselfe or that which is his or some other persons or things which he is bound to defend from further perill which he or they cannot otherwise escape By mischance By mischance as when a man casteth a stone at a bird or a beast or is in lopping or felling of a trée and another man passing by is slaine therewith without the foreknowledge and against the will of him who did the déede By will By will as when one man hath a will to fight with another and then doth kill him or some other that is in his company and doth take his part in that combate But of this Homicide by will there bée two sortes whereof the one is called Murder and that is By murder when one man vpon malice prepenced and forethought doth feloniously kill an other And the other is called Manslaughter or Chance medley and that is By manslaughter when two men fight together vpon a suddaine heat of blood without any malice precedent and one of them doth kill the other 2 If a man be adiudged by the court to be hanged Homicide by iustice and the Sherife is commanded by the Iudge to doe execution in that manner and he doth it accordingly this is Homicide by iustice But if the Sherife do behead him or cause him to be beheaded or by any other meanes to be put to death than according to the Iudgement M. 35. H. 6. 58. this is no Homicide by iustice but felonie in the Sherife The order of law not obserued in execution of Iustice for that he hath not obserued the order of the Law viz. the iudgement in putting the offendor to death And the same law is if one which is not Sherife or other officer thereunto lawfully deputed will put to death an offendor that is condemned to die vpon his owne authoritie for that is no Homicide by iustice but felonie in him who beeing not the Kings officer thereunto assigned hath killed one of the Kings Subiects without warrant of his law And therefore if the Iudge himselfe who gaue iudgement of death against an offendor shall after put the same offendor to death it is not iustifiable but beeing indited and arraigned thereof he must plead not guiltie And in this case the wife may haue an Appell of the death of her husband so put to death against the said Sherife or other person though the heire cannot haue an Appell of the death of his father so executed because his blood is corrupted by the Attainder 35. H. 6. 57. No man may kill him that is outlawed of felony or attainted in a Praemunire 3 If a man be attainted of felonie by Outlawrie it is Homicide by iustice for the Iudge before whom he is brought to command him to be put to death and for the sherife to sée executioÌ„ done of him according to the iudgement 2. Ass p. 3. 27. Ass p. 4. 35. H. 6. 58. viz. to hang him But it is felonie and not Homicide by iustice for any other man of his owne authoritie to kill him And for as much as it was doubtfull whether by the lawes of this realme there was any punishment for such as kill or slea any person or persons attainted in or vpon any Praemunire Therefore by a Statute made anÌ„ 5. El. 1. it was enacted St. 5. El. 1. That it shall not be lawfull to any person or persons to slea or kil any person or persons in any manner attainted or hereafter to be attainted of in or vpon any Praemunire by pretence reason or authoritie or force of any word or words thing or things contained or specified in any Statute or Law of Prouision and Praemunire or in any of them Any Law Statute Opinion or Exposition to the contrarie notwithstanding So that to kill any person attainted vpon a Praemunire is felonie and not Homicide by iustice Killing a felon that will not be arrested 4 A shirife a bayly 22. Ass p. 45 Fi. Cor. 261 or any other which hath warrant to arrest a man indicted of Felony may well iustifie the killing of him if he wil not suffer himselfe to be arrested but that he doth stand at his defence in such manner that the officer and his assistants cannot arrest him without killing of him And in this case the officer shal be discharged without the kings pardon for this is homicide by iustice done vpon him who refuseth to yéeld vnto and submit himselfe to the iustice of the Law And euery person as well he that hath no warrant as he that hath may apprehend a Felon and if he wil not yeeld to be arrested but stand to his defence or flie the pursuer may kill him without blame the arrest being for Felony and therein he shall commit homicide by iustice And by the statute of Anno 1. Killing of such as be vnlawfully assembled M. it is established That if any persons St. 1. M. 12. aboue the number of two shall vnlawfully assemble together to the intent with force armes to doe practise or put in vre any of the things in the said statute mentioned then it shall be lawfull to euery Iustice of peace and to euery Shirife Mayor Bailife and other head officer of any Citie or Towne corporat or to any other hauing the Kings commission or letters to raise assemble the Kings subiects in maner of warre to be arraied in such great number as he or they shall thinke méet or able to the intent by violence of strength to suppresse and take the said persons so vnlawfully assembled And if the said persons so vnlawfully assembled or any of theÌ„ shall fortune to be slaine maihemed or hurt in or about the repressing or taking of them then euery such Iustice mayor sherife c. and euery other person hauing authoritie as is aforesaid and euery person and
felons and shall incurre the paine of felony And the Iudges of the said Courts of the one Bench or of the other haue power to heare and determine such defaults before them and thereof to make due punishment as is aforesaid 2. R. 3. 10 Br. Cor. 173 If a Iudge doe file an indictment with other indictments The penalties of Iudges or officers abusing Records which was not found by the Iury that did find other indictments Or if he do imbesill or rase a Record or such like this is but misprision in the Iudge but this is felony in another person who is no Iudge and the Iudge shal be indited and arraigned thereof shall make a fine loose his office for this misprision And if the steward of a Liberty doth arraigne a man by the colour of Infangthéefe and doth adiudge him to death the liberty shall be seised therefore but no punishment shal be inflicted vpon the steward for he did it by colour of the liberty and so no felony and if a man do sue another by an action of debt to the exigent wherupon he is outlawed another maÌ„ doth rase the originall the 3. capias the exigent and maketh part in London and the residue in Middlesex and doth write in them W. B. for I.B. this is felony by the foresaid statute of 8. H. 6. which is if a Record in either of the Benches or in the Exchequer bee imbesiled carried away withdrawne or auoided wherby a iudgement shal be reuersed that then it shal be inquired by clerkes of those Courts and others it shal be adiudged by the Iustices of the same court and it shall be ordained as felonie and this rasure doth auoid the whole Record so that it cannot be redressed by error it is a greater offence then if part onely had bin auoided 2. R. 3. 10 and all which be agreeing thereunto be felons 17 By a stat made an 5. H. 4. St. 5. H. 4. 5. it was enacted That the offendors which do cut the tongues or put out the eies Cutting of tongues putting out of eies of any of the K. liege people and that duely proued and found that such déed was done of malice pretenced shall incurre the paine of felony 18 By the stat made anno 5. H. 4. it was ordained St. 5. H. 4. 4. That none shall vse to multiply gold or siluer nor practise the art of Multiplication Multiplication and if any do he shall incurre the paine of felony in this case 19 By the Statute made Anno 34. Ed. 3. and 37. Ed. 3. St. 34. E. 3.22 St. 37. E. 3.19 it was enacted Withholding of a hauke That whosoeuer findeâ—h a falkon Tarcelet Laner Laneret or other Hawke which the owner thereof hath lost shall immediately bring the same to the Sherife of the Countie whâ—ch shall make proclamation in all the good Townes of the Countie that he hâ—th such a hawke in his custodie and if the owner which lost the hawke or any of his seruants come to challenge it and proouâ—th that it is his Maisters hée shall pay for the costs and haue it And if none doe come within foure moneths to challenge it thâ—n the Sherife shall haue the hawke agréeing with him that tooke it vp if hée be a simple man and if hée be a Gentleman and of estate to haue a hawke then the Sherife shall deliuer him the hawke taking reasonable allowance for the kéeping thereof And whosoeuer taketh a hawke and the same concealeth from the owner or from his falkoners or takâ—th away a hawke from the owner or stealeth a hawke and carrieth it away not obseruing the foresaid ordinances and is thereof attainted shall be vsed as a felon which hath stolen a horse or other thing CoÌ„gregatioÌ„s by masons 20 By a Statute made Anno 3. H. 6. St. 3. H. 6. â— it was ordained That Congregations and Confederacies shall not be holden by Masons in their generall assemblies And if any such bee made they that cause such Chapters and Congregations to be assembled and holden if they be thereof conuict shall be adiudged for felons And all other Masons that come to such Chapters and Congregations shall be punished by imprisonment of their bodies and make fine and ransome at the Kings will A Souldier departing from his captaine 21 By the statutes of Anno 18. H. 6. Anno 2. E. 6. 2. and Anno 4. 5. P. M. St. 1â— H. 6. 19 St. 2 E. 6. 2. St 4 5. P. M. 3. it was enacted That if any Souldier man of Armes or Archer which hath taken parcel of his wages of his captaine hath mustred and is entred of record the Kings souldier doth not passe the sea or go with his captaine except notorious sicknesse or impediment by Gods visitation doth stay him which he shal immediatly certifie his captaine and repay his money or els being in the enemies countrey in garrison or elsewhere in the K. seruice where he is appointed to serue doth depart without licence of the kings Lieutenant Deputy high Admirall vice-Admiral Warden Captaine or in their absence of their Deputies then he shall be taken iudged and executed as a Felon without hauing any aduantage of Clergie or Sanctuarie And Iustices of Peace shall haue authoritie to enquire thereof and to heare and determine the same as they do other felonies committed in that Shire where such Souldior shall be taken And by a braunch of a statute wade anÌ„ 5. Eli. it was ordained That the foresaid statute of 18. H. 6. in all pains St. 5. El. 5. 2. lâ—e 25. forfeitures and other things did doth and hereafter shall extend as well to all and euery mariner and gunner A Mariner or Gunner hauing taken or which hereafter shall take prest or wages to serue the king his heires or successors to all intents and purposes as the same did or doth to any souldier S. the statutes of 7. H. 7. 1. 3. H. 8. 5. made to the like effect St. 7. H. 7. 1. 3. H. 8. 5 Co. li. 6. 27. Et Quaere whether the first stat which were made for couenant souldiors or the later stat which were ordained for pressed Souldiors bee or ought to be put in execution wherein haue respect to the meaning of the makers of the foresaid stat of an 5. El. 5. 22 By the statute of Anno 27. El. 2. St. 27. El. 2. it was ordained Receiuing or relieuing of Iesuits That euery person which shall wittingly willingly receiue relieue comfort aid or maintain any Iesuit Seminary priest or other priest made out of the realm of England Deacon or religious or Ecclesiasticall person being at liberty or out of hold knowing him to be a Iesuit Seminary priest or other such priest Deacon or religious or ecclesiasticall person shal for such offeÌ„ce be adiudged a felon without benefit of clergy suffer death
the appeale be fresh and the signe of truth apparant by effusion of blood or an open outcrie leuied But if it be without any manifest token or outcrie two pledges shall suffice Within what time an appeale shal be commenced 33 The before mentioned Statute of Gloucester hath ordained St. 6. Ed. 1. 9 That an appeale shall not be abated for default of fresh sute where a man doth sue within a yéere and a day after the déede done These words of the Statute be generall not making mention more of an appeale of death than of an appeale of any other felonie But yet conferring them with the other words in the statute they may be intended specialy to extend to an appeale of death and to none other appeale for if a man that is robbed doth make fresh sute 7. H. 4 44. and doe his endeuour to apprehend the felon and vse all his diligence to find him although he doe not commence his appeale two or thrée yeares after the robberie committed yet he may then well pursue it And so in appeale of robberie fresh sute shall be decided by the discretion of the Iustices H. 22. Ed. 4 39. But in an appeale of death it is a good plea for the Defendant to pleade that he of whose death this appeale is pursued died aboue a yeare and a day before the said appeale commenced 34 The words of the foresaid Statute of Gloucester be St. 6. Ed. 1. 9 That a man shall pursue his Appeale within a yeare and day after the déed done From what time the yeare shal haue relation touching an appeale And therefore if one man doe strike another vpon one day and he dieth of the same stroake certaine daies after Co. l. 4. 42 the Appeale shal be commenced within the yeare and day after the death and not within the yeare and day after the stroake giuen for there was no felonie committed vntill the man was dead But yet if one mā doe giue to another a mortall wound in Februarie and the king doth in April next giue pardon to the offendor of all felonies before that time committed Plo. com f. 401 and the partie stricken doth die of the same wound in May following How the K. pardon shal haue relation this pardon shall discharge the offendor because the wound giuen by the offendor was the cause of the felonie the which wound was the offence towards the King and that the king hath pardoned and so thereby the death of the partie and all other things depending vpon the same offence be pardoned 35 Where the words of the Statute of Gloucester be The yere shall haue relation to that offēce That a man shall pursue his Appeale within a year and a day after the deed done St. 6. E. 1. 9. Those words viz. the déed done shal be intended of the felonie whereupon the appeale is commenced for if one be accessorie to another a yeare after the homicide or murder committed 26. Ass p. 52 an appeale shal be pursued against him and yet it is not within the yeare and day after the homicide or murder committed S. Br. 52. St. 3. E. 1. 13 36 It appeareth by Britton and also by the Statute of Westminster 1. that an appeale of Rape ought to be commenced within fourtie daies after the fact done Within what time an appeal of rape shal be commenced But then Rape was but a trespasse which after by the Statute of Westminster 2. was made felonie St. 13. E. 1. 34. In which Statute of Westminster 2. there is no time limited within the which a woman shal be compellable to pursue her Appeale of Rape And therefore it séemeth she is at libertie to bring it when she will so that it be within a reasonable time 18. Ed. 3. 32 37 An appeale ought to be brought in the Countie where the felonie was committed as if it be murder or homicide In what countie an appeale shal be brought where the same murder or homicide was done But if a man be striken in one county and then goeth into another countie and there dieth of the same wound by the common law an appeale may be commenced either in the countie where the stroake was giuen A man strickē in one countie dieth in another or in the countie where the partie stricken did after die and the trial thereof shal be by the Iurors of both the counties 3. H. 7. 12. 4. H. 7. 18. viz. as well of the countie where he was stricken as of the countie where he died And so it was at the plaintifes pleasure to bring his appeale in which of those two coūties he would But since by the Statutes of Anno 2. 3. E. 6. St. 2. 3. E. 6. 24. it is ordained That where any person shal be feloniously stricken or poisoned in one countie and die of the same stroake or poysoning in another countie then an indictment thereof found by Iurors of the countie where the death shall happen whether it be found before the Coroner vpon the sight of such dead bodie or before the Iustices of peace or other Iustices or Commissioners which shall haue authoritie to enquire of such offences shal be as good in law as if the stroake or poysoning had béene committed in the same countie where the partie shall die or where such inditement shal be found And such party to whom appeale of murder shal be giuen by the law may commence take and sue Appeale of murder in the same countie where the partie so feloniously stricken or poysoned shall die as well against the principal and principals as against euery accessorie to the same offences in whatsoeuer countie or place the accessorie shal be guiltie to the same And the Iustices before whom any such appeale shall be commenced sued and taken within the yeare and day after such murder manslaughter committed shall procéede against euery such accessorie in the same countie where such appeale shal be so taken in like manner and forme as if the same offence of accessorie had beene committed in the same countie where such appeale shal be so taken as well by the triall of the Iurors of the countie where such appeale shal be taken vpon the plea of not guiltie pleaded by such offendor Accessories in other offences sauing murder as otherwise But note that no Appeale is giuen by this Statute Stamford nor remedie prouided against accessories in a forreine countie of other felonies sauing for murder or manslaughter but the same is left to the common law In what coūtie an appeale of Rape shall be brought 38 An appeale of Rape ought to be brought in the countie where the Rauishment was done And therefore if a man doe take a woman against her will in one countie and then carrie her into another countie and there doe rauish her the appeale shal be onely commenced in the
be passed And if the same Felons Murderers and Accessories or any of them so arraigned be acquited or the principall of the sayd felonie or any of them be attainted the wife or next heire to him so slaine as case shall require may take their Appeale of the same death and murder within the yeare and day after the same felonie and murder done against the said person so arraigned and acquit and all other their accessories or against the accessories of the sayd principall or any of them so attainted or against the sayd principall so attainted if they be then liuing and the benefit of the Clergie thereof before not had And the appellant shall haue such aduantages as if the sayd acquitall and attainder had not béene the acquitall or attainder notwithstanding The wife or heire of the person so slaine or murdered as case shall require may commence their Appeale in proper person at any time within the yeare after the felonie done before the Sherif and Coroners of the Countie where the sayd felony and murder was done or before the King in his Bench or Iustices of gaole deliuerie And though that by force of the sayd statute of 3. H. 7. at another time acquited is no plea in an Appeale of death at this day Another time acquit no plea in Appeale but in Indictment yet in an indictment of death it is a good plea to plead that he was at another time acquited in an Appeale brought of the same parties death S. Appeales 93. 48 And so it appeareth that the before rehearsed enormities that were at the common law and some others touching the indicting and arraigning of murderers and manquellers be remedied by the foresaid statute of 3. H. 7. but in other Appeales the rules of the common law doe continue in force For if a man be indicted of robberie and hee that was robbed hath an Appeale depending of the same robberie No indictmēt of robbery vntil the Appeal be tryed against the partie indicted in which Appeale he hath procéeded so farre that the Iust may perceiue that it is of the same robbery they ought to surcease to try the Appellée vpon the indictment 31. H. 6. 11 vntill the plaintife hath made his declaration For in an Appeale by writ the robbery cannot be certainly known vntil he hath made his declaration though it be otherwise in an Appeale commenced by bill 49 Though at another time conuicted or attainted of the same felony Another time conuict of the same felonie was and is a good plea for him that is the second time or more often indicted and arraigned againe vpon the same felony yet by the common law if one had béen indicted and arraigned of felonie and deliuered to the Ordinarie as a Clerke conuict and before he had made his purgation of the same felony he had broken the Ordinaries prison and escaped he might haue bin another time arraigned vpon the same indictment And it was no plea for him to plead Fitz. Cor. 232. that hee was another time conuict of the same felony and deliuered to the Ordinarie or that he was a Clerke and could not answer without his Ordinarie because hée remained vnpurged of the felonie and did loose the benefit of his Clergie by the breaking of prison And yet at that time if hee had not broken the Ordinaries prison but departed by his licence then at another time conuict shold haue bin a good plea for him vpon his second arraignmēt But now sithence by the stat of an 18. El. St. 18. El. 6. euery person which shal be admitted to haue the benefit of his clergie shal not therupō be deliuered to the Ordinarie as hath bin accustomed but after such clergie allowed and burning in the hand shal forthwith be enlarged and deliuered out of prison by the Iust before whō such clergy shal be granted Therefore at this day if one bee conuicted of felonie and hath the benefit of his Clergie Co. li. 4. 40. 45. and is burned in the hand if after in any case he shall be indicted and arraigned of the same felonie it shal be a good plea for him to plead that hée was another time conuict of the same felonie because the life of a man shall not be twice put in ieopardie for one offence yea though he shall breake the prison and depart from thence within that time after his conuiction which the Iustices shall thinke conuenient to detaine him in prison for his further correction for now he is not in prison for felonie but for correction 50 It is a good plea for him that is arraigned of felonie to plead that he is attainted of felonie Another time attainted of felonie and to demand iudgement if during this attainder he shal be put to answer to that felony whereof he is attainted or to any other felonie for if he should be put to answer no more could be recouered of him than is recouered 28. E. 3. 90 neither can he forf more than he hath forfeited hauing forfeited life lands goods and all that he hath and therefore it should bee to no purpose to trouble him any more But it is otherwise where it is to any end or purpose to put him to answer and plead againe to a new indictment as in some speciall cases it may be done As a man attainted of felony hath also committed treason at the time of the felonie committed in this case he shal answer to the treason for the K. aduantage 1. H. 6. 5. notwithstanding his attainder of felony before because if he be attainted of treason the king shall haue the escheat of his lands of whomsoeuer they be holden but if the treason were committed after the felony or at the least after the attainder of felony then it were otherwise for then the title which was vested in the chiefe Lord of whom his lands were holden 4. E. 4. 11. cannot be deuested by a matter accrued ex post facto And also where diuers men haue seuerall Appeals of robbery against one man though he be attainted at the suit of one of them yet to the intent that euerie of them may recouer his goods which were robbed and taken from him vpon his fresh suit hée shal be againe arraigned at euery of their suits And it is no plea for him in this case to plead that he was another time attainted of felony 51 In all cases where the defendant would discharge himselfe by pleading that he was attainted of another felony thē this whereof he is now arraigned The K. pard◠obiected against another time attainted it may be replied for the party or the king that after the same attainder the K. did pardon him that felony whereof he saith he was attainted and his attainder thereof 6. H. 4. 6. whereby he was restored to the law and so he ought to answer to all other felonies notwithstanding they were committed before this
iudgement shall be giuen that the approuer shall be hanged And in like sort it is Fi. Cor. 456 if an approuer doe appeale seuerall persons in seuerall counties and processes be awarded against them vntill some of them be attainted and some of them depend in processe not attainted and the Iustices be informed by credible persons of the same countie wherein they were appealed that there be no such men to their knowledge in rerum natura the approuer shall be hanged An approuer did appeale two men in London and proces was awarded against them and it was returned that there were no such men dwelling in the city of London and the approuer agréeing to the same returne Fi. Cor. 460 saide that they were dwelling within the city of Lincolne and he was not thereunto receiued but was adiudged to be hanged So that if there be any falshood or lying in the approuer be it before his approuement or after and that the court do perceiue it they will take his appealing from him and adiudge him to be hanged And if they do otherwise Approuement after pleading not guiltie it is more of fauour than of right 12. Ed. 4. 10 for of fauour the court may allow the prisoner to waiue his plea of Not guiltie and to confesse the felonie and to become an approuer 21. H. 6. 35 And if an approuer doe appeale one who by his owne confession is out of the Realme he shall be hanged for the appellée cannot be attainted at his sute for though he should be outlawed yet he may reuerse it at his returne for that cause 6 When a prisoner vpon his arraignement doth confesse the felonie An Approuers othe and praieth a Coroner which is assigned vnto him by the court he must be sworn in the same court before his departing to appeale of all felonies and treasons which he doth knowe and the court shall appoint him a number of daies wherein to make his appeale in the which daies and in euery of them hée ought to appeale for if thrée dayes be appointed and in two of them he doth appeale 12. Ed. 4. 10. 26. As p. 19. Fit Cor. 439 and the third day he will affirme to the Coroner that he can say no more and the Coroner doth report the same to the court iudgement shall be giuen that he shall be hanged 7 An approuer shall haue wages of the King euery day that is assigned him by the court to approue in viz. a penny a day And some do affirme An Approuers wages that he shall haue no wages Fi. Cor. 439 vntill he hath made his proofe by vanquishing some appellée in battell or by conuicting him by verdict and then he shall haue wages of the King for euery day 8 When a Coroner is assigned to an approuer An Approuer set at liberty the approuer must he let out of prison to the intent that hee may approue or appeale of his owne frée will being at liberty without any dures for if it be by dures when he commeth againe before the Iustices hée may rehearse his appeale and disauow it for that cause which shal be tried by the examination of the Coroner vpon his othe Fi. Cor. 118 169. 255. And if the Coroner do say that the same appeale was not by dures the appeale shall stand and the approuer shall be hanged And when the approuer hath made his appeale before the Coroner he shall come againe before the Iustices and rehearse his appeale before them for they will not reade his appeale vnto him and if hée doe faile in the rehearsall of his appeale 26. As p. 19 in anie word otherwise than the Coroner hath recorded it he shall be hanged as if in his rehearsall he doe say that there was a blacke horse stollen where it it was recorded by the Coroner a redde Horse An Approuers appeale must be certaine For the Approuer must declare the thing certainely with all the circumstaunces thereof without any varying or alteration Bracton and he must know the person whom he hath appealed when hée is brought into question for if he know him not it is to be presumed that they were neuer companions Processe against the appellees 9 After an Approuer hath made his appeale before the Coroner if the appellees be dwelling in the Countie where the appeale is made the Coroner hath authoritie to award processe against them vntill the Exigent and to direct his processe to the Shirife to serue But so he cannot doe 29. Ed. 3. 42 if the appellées be dwelling in another countie for then he must not award processe against them but referre it to the iustices before whom he is to record the same appeale And they may award processe as the Iustices of the Kings bench and Iustices in Eire may do who may award processe by the common law and Iustices of Gaole Deliuerie by the statute De Appellatis made Anno 28. Ed. 1. which hath ordained St. 28. Ed. 1. That whosoeuer shal be appealed by any Approuers remaining in the Gaoles which the Iustices of Gaole deliuerie shall deliuer in what places soeuer of the Realme the persons appealed shall remaine immediatly the Shirife of that countie where such persons appealed be conuersant or may be found shall be commaunded by the Kings Writs vnder the testimonie of the same Iustices that he shall apprehend those persons appealed and conuey them to the Gaole where the approuers by whose appeale they be apprehended be imprisoned And the Shirife or Gaoler of that prison shall receiue them and there they shall answer before the same Iustices And if they put themselues vpon the country the Iustices shall send by a iudiciall Writ to the Shirife of the Countie where the felonie was committed that hée shall returne an Enquest before them at the place where the approuers do remaine at a certaine day Pleas for the Appellee against the Approuer 10 It is a good exception for the appellée in his owne defence to alleage against the approuer that the approuer is a person attainted of treason 11. As p. 27. Fi. Cor. 387 443 21. Ed. 3. 17 or felonie and to shew how viz. either by verdict outlawrie or abiuration or in any other manner for such a person is out of the Lawe and so disabled to appeale or accuse others And the same lawe is if the approuer be a clerke conuict for hee commeth now too late to confesse a felonie 17. Ed. 3. 13. when hée hath pleaded not guilty thereunto before which was found false at his owne sute and therefore it cannot be intended that the thing hée saith now is true And although hée had his clergie vpon confession of the felonie An Approuer conuict of felonie yet hée shall not now become an approuer for that he saide nothing at that time when hee ought to haue approued and therefore the Lawe cannot intend that hée hath
Appellée be within the lists ready to atchieue the combate That none but the two combaters shall be so hardie to stirre or make any noyse whatsoeuer he shall sée or heare whereby the battell may be disturbed And whosoeuer shall doe any thing contrarie to the said Proclamation Britton shall bée imprisoned a yeare and a day And they shall fight with weapons of small length béeing bare headed and hauing their hands and féet bare with two staues of one length horned at both endes And either of thē shall haue a Scutchian foure cornerd without any yron for that one shall not hurt the other with the yron Bracton de coron c. 21. And if the appellée can defend himselfe vntill Starres may be séene in the firmament then he shal goe quit from the appellant And also when the appellant and the appellée be in the field ready to ioyne battell or in the Battell it is a sufficient vanquishment if the appellant will confesse his appeale to be false 21. H. 6. 34. Fi. Cor. 98 for by this acknowledgement he shal be adiudged to be ouercome in the field and barred of his appeale for euer And on the other side if the appellée doe confesse himselfe in the field to be vanquished Bracton de coron c. 21. he shal be presently hanged As in an appeale the defendant pleaded not guiltie and made his choyce to trie it by Battel and as they were in the combate the appellant cast the appellée to the ground did grieuously beat him 19. H. 6. 35. and the Iustices sent for the appellée and when he was brought vnto them they demanded of him if he would any more of the battell or not who answered that he would not and said further that by the oath which hée had taken hée was not guiltie of the felonie whereof he was appealed to whom the Iustices said That if he would any more of the battell he should be laid in the same sort that he was when they sent for him but he answered that he would no more of the battell and therefore hée was presently hanged The reason why the def may be tried by battel in appeale 3 The reason why in an appeale the Defendant shall bée admitted to trie his cause by Battell is for that no euident or probable matter doth appeare against him to prooue him guiltie of the felonie whereof hée is appealed but onely the bare accusation of the Appellant which is no witnesse of credit in his owne cause And therefore séeing the appellant doth demaund iudgement of death against the Appellée by an appeale and hath no other probable euidence to attaint him but his owne accusation it is more reason that the appellant shall aduenture his life with the appellée for the triall thereof if the defendant doe require it than to put the triall thereof vpon the countrey which for default of euidence may be ignorant of the truth thereof and so giue a false verdit and by that meanes to leaue it to God to whom the truth of all things be knowne to giue the verdit in this cause by attributing the victorie or vanquishment to which partie it shall please him Counter-pleas to the battel 4 If the appellant haue any vehement presumption or sufficient testimony to prooue that his appeale is true it will bée a good counter-plea and sufficiently serue him to put the appellée from his triall by Battell As if the Defendant were indited of this Felonie before the appeale commenced 22. E. 4. 19. 20. E. 4. 6 14. E. 4. 7. 4. Ass p. 1 Bracton de coron̄ c. 18. Britton or was taken with the manoure or was taken with a bloodie knife or other weapon ouer the bodie of him that was slaine or néere vnto him whereby there was vehement suspition that he killed him or that the defendant did lie alone in the house with him that was killed or that he and others did lie in the house with him that was slaine and receiued no blowes or wounds in his defence or that he made no Huy and Crie after the théeues or murderers to apprehend them or that he will not confesse which of those that were in the house with him did kill the man that was slaine or committed the felonie that was done or that he receiued the man that was slaine into his house which was séene to goe in aliue and after was found dead there and no meane prooued how he came by his death Taken with the manoure 5 If the Defendant be taken with the manoure as in an appeale of death with a bloodie knife or other weapon he shal be barred from waging of battel And so it shall be if he be taken with the manoure in an appeale of Robberie 7. H. 4. 44 Fit cor 230 4. Ed. 3. 9 which manoure the plaintife must bring into the Court at the time when the Appellée doth offer to ioyne in battell or otherwise he must plead that the Appellée was taken with the manoure which manoure hee would haue brought into the Court but that he was not able to bring it or else hee may say that the manoure is in the possession of another and pray the Court to write for it To which manoure when it commeth into the Court the defendant shall haue no trauerse or other exception if the thing brought into the Court for the manoure doe not varie from those goods or things which be contained in the Appeale 22. Ed. 4. 19 And in appeale of robberie if the Appellée be apprehended vpon fresh suit by Huy and Crie and some of the money robbed be taken in his custodie this is a sufficient taking with the manoure to put him from waging of Battell Fi. Cor. 375 though the money cannot be knowne from other money And the reasons why in an appeale of robberie the defendant being taken with the manoure shall not wage battell against the appellant be for that by the Appeale the plaintife doth endeauour to attaint the Appellée of felonie and also to haue his goods againe And it may be that if it should be tried by Battell the Appellée might vanquish the Appellant in combate though the appellee be guiltie of the felonie and by that meanes also retaine his goods stollen without cause Taken with the manoure And the manoure was accounted so pregnant an euidence in former ages that the Iustices would as readily arraigne a prisoner vpon the manoure taken in his possession as vpon an indictment 6 It is also a good counter-counter-plea to the battell for the Appellant to say Breaking of prison that the defendant when he was taken or arrested for that felonie whereof the appeale is sued Fi. Cor. 251 281 1. As p. 6. and therefore imprisoned did breake the prison and escaped or did what he could to escape for it is a very great presumption against him that he is guiltie of the felonie whereof he is
and Terminer Nisi prius for the defendant in appeale 4 Although by the common Lawe a Nisi prius is grantable for the king but not grantable against the king where he is partie to the suite or where the matter in question doth touch the kings right or where he is party thereunto but by aide praier vnlesse his Atturney will assent thereunto yet in an appeale of felonie when the appellant and appellee be at issue the Defendant may haue a Nisi prius to pursue the same issue 21. H. 7. 34 if there be any default in the Plaintife that he doth not pursue it with effect though the K. be in a sort party to that suite for otherwise the appellée should continually remaine in prison to his vtter vndoing and neuer haue remedy Neither the Defendant in an appeale shall not haue a Venire facias with a prouiso 14. H. 7. 7. 15 H. 7. 9 21. H. 6. 36 vntill hée hath assigned some default in the Plaintife in the pursute of it And yet the Plaintife may at his pleasure stay the Defendant in procéeding further with his processe in praying a Tales vpon the Defendants processe Remaunding of prisoners out of the K. Bench to be tried in the Countrie 5 Because diuers felons and murderers vpon vntrue surmises did oftentimes remooue as well their bodies as their Indictments by Writte and otherwise before the King in his Bench and could not by the order of the Lawe be remaunded and sent downe to the Iustices of Gaole deliuerie or of the peace nor other Iustices or Commissioners to proceede vpon them after the due course of the common lawe for that a Record which is once remoued into an higher Court can not by the common Lawe be sent backe to a more base and inferiour Court For the redresse whereof by a statute made An̄ 6. H. 8. it was ordained St. 6. H. 8. 6 That the Iustices of the K. Bench for the time being haue authoritie by their discretions to remaund and send downe as well the bodies of all felons and murderers brought and remoued or that shall be remoued or brought before the king in his Bench as their indictments into the counties whereas the same murders or felonies haue béen committed or done and to commaund all Iustices of Gaole deliuery Iustices of Peace and other Iustices and Commissioners and euery of them to procéed and determine vpon all the foresaid bodies and indictments so remoued after the course of the common law in such maner as the same Iustices of gaole deliuerie Iustices of peace and other Commissioners or any of them might or should haue done if the said prisoners or indictmēts had neuer bin brought into the said K. bench St. 4. Iac. 1. 6 By a stat made Anno 4. Iac. it was enacted Triall of felonies committed by English men in Scotland That all offences of coniurations witchcraft dealing with euill and wicked spirits murder manslaughter felonious burning of houses and corne burglary robbing of houses by day robberie theft the detestable vice of buggerie committed with mankind or beast and rape heretofore done and committed since his Maiesties comming to the crown of England or hereafter to be done or committed by any his Maiesties naturall borne subiects of this realme of England or the dominions of the same within the realme of Scotland or the dominions thereof and the accessories of and to the same shal be from henceforth inquired of heard and determined before his Maiesties Iust of Assise or his Commissioners of Oyer and Terminer or Gaole deliuery being naturall borne subiects within this realme of England and none other by good and lawfull men of the Counties of Cumberland Northumberland Westmerland or any of the said counties at the election of the said Iust of Assises or Commissioners in like maner and forme to all intents and purposes the alterations hereafter in this Act expressed only excepted as if such offences had béene done and committed within the same Shire where they shal be so inquired of heard and determined as is aforesaid At which trials for the better discouerie of the truth Witnesses allowed to him that is arraigned and for the better information of the consciences of the Iurie and Iustices there shall bée allowed vnto the party so arraigned the benefit of such witnesses only to be examined vpon othe that can be produced for his better cléering and iustification as hereafter in this Act are permitted and allowed St. 4. Iac. 1. 7 Euery Iustice of peace of the counties aforesaid The prosecutors and witnesses bound to giue euidence vnto whom complaint shal be made shall haue full power and authoritie by vertue of this Act to bind ouer by recognisance in a conuenient summe taken to his Maiesties vse as well the partie prosecuting as any witnesses which he shall desire to produce so as the said witnesses may haue their reasonable charges first tendred vnto them to prosecute and giue in euidence before such his Maiesties Iustices as aforesaid as the case shall require St. 4. Iac. 1. 8 Euery commander procurer counsellor abettor comforter receiuer The accessory tryed though the principall be not or other accessorie of or to any the offendors or offences aforesaid so committed in Scotland as aforesaid offending within the realms of England or Scotland shal be produced withall indicted tried iudged and executed without delay notwithstanding the principals or any of them be not conuicted or attainted And that no such offendor either accessorie or principall shall be allowed the benefit of his clergy No clergie No peremptorie challenge aboue v. The words of the Indictment nor admitted to his peremptory chalenge of aboue the number of fiue And that euery indictment of any of the offences aforesaid so committed as aforesaid shal be adiudged of as good force in law notwithstanding the words contra pacem coronam dignitatem nostras be omitted as if the said words had béen therein contained Euery Iuror must haue v. l. of fréehold 9 No Sherife Vndersherife or other Minister to whom it appertaineth St. 4. Iac. 1. shall returne any Iuror to enquire of or try any of the offences aforesaid so committed as aforesaid except euery such Iuror shall haue fréehold in possession to the value of v. l. by the yeare in the county where such inquirie and triall shall be vpon pain to forf for euery Iuror that shal be returned contrary to this Act the summe of xl l. to the K. and I. to be recouered by A. of debt B. P. or I. in any of the K. courts at West wherein no E.P. or W. c. And the offendor shall or may challenge any Iuror that shall passe vpon his life for want of such fréehold as aforesaid The offendor shall forf no lands 10 No naturall subiect of his Maiestie of the realme of England St. 4. Iac. 1. or of the dominions
gaoler shal be punished for it 36 The Court vpon the suit of the prisoner may allow him the priuiledge of his Clergie in the absence of the Ordinarie or without the aduice of the Ordinarie or without demanding of the Ordinary vtruÌ„ legit vt Clericus an non 9. E. 4. 28 and so the court néed not expect the presence of the Ordinary if he faile of his attendance for the court doth vse the Ordinary but as a minister in this cause to confirme their iudgement in allowance of Clergie and to heare his opinion if the prisoner be worthy of Clergy or not To what vse the Ordinarie is imployed Because the maner and order is for the Ordinary to deliuer a booke to the Iust who open it and assigne the verse that the prisoner shall read and the Ordinary receiuing the booke of the Iustices doth come to the prisoner and command him to read that verse which béeing done the court doth demand of the Ordinary vtruÌ„ legit vt Clericus an non and the Ordinarie doth answer legit or non legit and then the court doth allow that which the Ordinarie saith if it be true or otherwise not And moreouer the Ordinarie was in former times vsed by the Iustices to another purpose viz. to know if the prisoner were within orders or not which the temporall court could not take knowledge of for if he were within orders he should haue had the priuiledge of the church whether he did read or not by shewing the letters of his orders or by the Ordinaries certificat vntill the stat of anno 28. H. 8. St. 28. H. 8. 1 was made by the which it was ordained That such as be within holy orders shal be and stand vnder the paines and damages for their offences and be vsed and ordered to all intents Clerks within Orders shal be vsed as others be as other persons not being within holy orders shall be And further it may be that the offendor hath bin a committer of sacriledge an heretike or an Apostata or some other grieuous offendor so that the court hearing the Ordinary willing to refuse him would also refuse him What is reading as a Clerke 37 There is a difference of reading for it may be that the prisoner may read two or thrée words of the verse that is assigned vnto him by the court but not the whole verse which is a kind of reading 9. Ed. 4. 28. but not such a reading as a Clerke ought to make for if hée will read as a Clerke hée must read the whole verse But although at the first hée beginneth with spelling and after doth read as a Clerke yet in fauour of life he shal be allowed for a Clerke and the forme of entry vpon request of Clergie 4. Eliz. Dyer 215. is Et tradito ei libro legit vt clericus 38 Though the Court may giue allowance of Clergie in the Ordinaries absence yet that shall not excuse the Ordinary of his attendance The Ordinaries attendaÌ„câ— in proper person or by his deputie vpon paine of a fine to be assessed vpon him by the Court which deputy ought to haue and bring with him sufficient letters of the Ordinarie vnder his seale testifying the authoritie which the Ordinary hath giuen him 25. E. 3. 40. And though his warrant be but to challenge Clerkes arraigned and not Clerks conuicted yet the warrant is good ynough and shal be allowed Contention who is Ordinarie And if two seuerall persons do claime to be Ordinaries the Court ought not to allow either of them but must write to the Metropolitan to make certificat who of right ought to be Ordinarie Fi. Cor. 432 39 He that is indicted by the name of a Clerke A Priest shall haue â—o fetters or appeareth to the Iudge to be a Priest shall not vpon his arraignment stand at the bar in fetters And so was the law in antient time for euery prisoner as Britton Britton reporteth 40 Bigamie in times past was a counterplea to clergy viz. to alledge that he who demandeth the priuiledge of his clergy was maried to such a woman at such a place within such a dioces and that the said woman dyed and that he maried another woman in such a place in the same or another dioces and so hée is Bigamus Or if he hath béene but once maried to say that she which hée maried was a widow and before had bin the wife of such a man which allegation should haue bin tried by the bishop of the dioces where the mariage was alledged to be solemnized And it being certified by the bishop that he was Bigamus the prisoner should haue béene put from his clergie Which was by a Constitution made at the Counsell of Lions as it appeareth by the stat of Bigamie made anno 4. Ed. 1. St. 4. Ed. 1. 5. for before that Counsell of Lions euery man that had bin twice maried or had maried a widow should haue had the priuiledge of clergie But that law was sithence altered by the stat of anno 1. Ed. 6. St. 1. E. 6. 12 wherby it is enacted Bigamus shal haue his Clergie That if any person or persons by this stat or by any other stat or lawes of this realme S. Br. 24. ought to haue or to be admitted to the benefit of his or clergie that the same person or persons shal be from henceforth admitted and allowed to haue his or their clergy although they or any of them haue bin diuers and sundrie times maried to any single woman or single women or to any widow of widowes or to two wiues or mo Any law statute or vsage to the contrarie notwithstanding And though some haue affirmed that the foresaid stat of 1. Ed. 6. St. 1. Ed. 6. was abrogated by a braunch of a stat made 1. 2. P. M. 8. which did repeale all stat prouisions and articles made against the sea of Rome since the xx yere of K. H. 8. and the Pope by his decretals brought in the same exception of Bigamy which was obserued and obeyed as a common law vntill the said stat of 1. E. 6. But that foresaid stat of 1. 2. P. M. 8. was also after repealed by the stat of an 1. El. 1. for the which and some other causes it is agréed and holden for law 3. Eliz. Dyer fol. 201. that the before rehearsed stat of 1. Ed. 6. doth stand and remaine in force and Bigamus shall haue his Clergie 41 It is a good counterplea to him who demaundeth his Clergy to say Another time conuict that he had another time the benefit of his Clergie when he was arraigned of another felony and shew the certainty therof when and where he was arraigned and had his Clergie to demaund iudgement if hée shall haue his Clergie againe Which counterplea was ordayned by the statute of Anno
4. H. 7. St. 4. H. 7. 13 for by the common law if a man had once enioyed the benefit of his Clergie for felonie and after committed felonie againe yet he should haue had the priuiledge of his Clergie againe and so often as hée had committed felony vntil the said statute did restraine him by these words viz. Where vpon trust of the priuiledge of the church diuers persons haue bin the more bold to commit murder rape robberie theft and all other mischiuous déeds because they haue béen continually admitted to the benefit of their clergie as oft as they did offend in any of the premisses In auoidance of such presumptuous boldnesse it is ordained That euerie person not being within orders which once hath bin admitted to the benefit of his Clergie eftsoones arraigned of any such offences be not admitted to haue the benefit or priuiledge of his clergy and that euery such person so conuicted for murder How the conuict shal be marked to be marked with an M. vpon the brawne of the left thumb if it be for felony the same person to be marked with a T. in the same place of the thumb these markes to be made by the gaoler openly in the court before the Iudge before such person be deliuered to the Ordinarie Prouided alwayes if any person at the second time of asking his clergie because hee is within orders hath not there ready his letters of his orders or a certificat of his Ordinarie witnessing the same that then the Iustices before whom hee is so arraigned shall giue him a day by their discretion to bring in his said letters or certificat And if he faile and bring not in at such a day his said letters nor certificat then the same person to loose the benefit of his clergie as he shall doe that is without orders By which stat it doth appeare that he that is within orders is excepted and that he may haue his clergie the second time vpon the shewing of his letters of orders or his Ordinaries certificat of the same this statute notwithstanding But after by the statute made Anno 28. H. 8. 32. H. 8. St. 28. H. 8. 1 32. H. 8. 3 it was enacted How offendors that be within orders shal be vsed That all such persons as be or shall be within holy orders which by the lawes of this Realme ought or may haue their clergie for any felonies and shal be admitted to the same shal be burned in the hand in like maner and forme as lay Clerkes béene accustomed in such cases and shall suffer and incurre after all such paines damages and forfeitures and bee ordered and vsed for their offences of felony to all intents and purposes as lay persons admitted to their clergie be or ought to be ordered and vsed by the lawes and statutes of this Realme Any lawes statutes prouisions customes c. notwithstanding The force and effect of part of which said statutes of 28. H. 8. 32. H. 8. is in some sort attenuated by a braunch of the stat of Anno 1. Ed. 6. St. 1. E. 6. 12 S. Br. 24. as some do conceiue it which doth ordaine That in all other cases sauing such as be mentioned in the sayd Act all and singular person persons which shall be arraigned or found guiltie vpon his or their arraignement or should confesse the same or stand mute or would not answer directly should haue and enioy the priuiledge and benefit of his and their clergie the libertie and priuiledge of Sanctuarie in like manner and forme as he or they might or should haue done before the foure and twentieth day of Aprill Anno 1. H. 8. at which time a man within orders should haue had the priuiledge of his clergie seuerall times And by this Statute he shall not be burned in the hand as a lay man shall But yet in all those cases wherein a man is put out of his Clergie by the Statute of Anno 1. Ed. 6. and also in all other cases wherein Clergie is taken away by any Statute made sithence Anno primo Edw. 6. a man within orders is as well put out of his Clergie as a lay man euery of those Statutes being generall and without exception 42 Because diuers persons haue béene in times past indicted arraigned and some of them Clerkes conuict and some of them Clerkes attainted and some of them outlawed for Murder Burglarie Robberie and other Felonies before Iustices of Peace Iustices of Gaole deliuerie and Iustices of Oyer and Terminer within diuers Cities Counties Franchises and Liberties within this Realme The records of which attainders outlawries and conuictions many times by the negligence of the Clerke of the Crowne Clerke of the Peace Clerke of Assise and such other as haue had the order rule kéeping and gouernance of the same Records haue béene imbeciled and not readie to be obiected against such persons as haue béen newly arraigned before the King in his Bench or before other the Kings Iustices for the like and such other offences by them committed or done And for that it hath not béene knowne certainely whither to resort for the same Records because they were not certified into any place certaine by reason whereof sometimes such persons and like offendors which haue béene newly arraigned as is aforesayd haue had the benefit of his or their Clergie where they ought not ne should haue had the same if the said Records had béene then present in the same place where such person or persons were so newly arraigned or else certified into some other place certaine where the same Records might haue bin séen sent for or written for to haue béene obiected against such person or persons so newly arraigned whereby as well the King as also all other persons haue many times lost their Escheats and other aduantages and forfeitures that they should haue had by meane of the sayd attainders to the great losses of the King and other persons and also the sayd offendors haue had their Clergie where they ought not to haue had to the great boldnesse and encouragement of like offendors For the reformation whereof by a Statute made Anno 34. 35. H. 8. St. 34. 35. H. 8. 14. it was enacted That the Clerke of the Crowne Certificat into the K. bench of outlawries attainders conuictions Clerke of the Peace and Clerkes of Assise for the time being where any such attainder outlawrie or conuiction shall so bée had shall not onely certifie a Transcript briefly and in few words containing the tenor and effect of euerie such indictment outlawrie or conuiction and Clerke attainted before them so to be had made or pronounced that is to say the name sirname and addition of euerie such person and persons as shall be so indicted and thereupon outlawed conuicted or Clerke attainted and the certaintie of the sayd felonie or other offence whereupon he or they shal be so outlawed
Confederacies of the same committed vpon the land within this Realme And if any person happen to be indicted for any such offence done vpon the Seas or in any other place aboue limitted then such order proces iudgement and execution shall be vsed and made to and against euery such person so indicted as against Traytors Felons and Murderers for Treason Felony Robbery Murther or other such offences done vpon the land and such as shal be conuict of any such offeÌ„ce by verdict confession or proces shall suffer such paines of death losse of lands goods and cattels as if they had bin attainted and conuicted of any of the said offences done vpon the land No pennance for high Treason 5 The foresaid statute of West 1. maketh mention only of felons and felonies and therefore in high Treason whether it be by indictment 15. E. 4. 33 M. 3. 4. El. Dy. 205 300 or by any other meanes whatsoeuer the offendor shal not haue the said iudgement of pennance viz. of paine grieuous and durable but shall haue another iudgement that is to say as of a Traitor conuict No pennance for a man before attainted 6 If a man that is attainted of Felony be brought to the barre 8. H. 4. 2 26. As p. 19 and asked what cause he can shew why he should not be put to death and he will stand mute in this case he shal be hanged and not put to his penance for hee cannot put himselfe vpon an Enquest of felonie because he was attainted thereof before and so he is out of the case of the stat 7 If a man vpon his arraignement doth confesse the felony Standing mute after confession and before iudgement at another day he will stand mute by fraud and so it is found in this case he shal be hanged 14. E. 4. 7. and not put to his penance for his iudgement shall be giuen vpon his confession And so it is Demurring in law if he do demur in law vpon any point which is adiudged against him he shal be hanged for in both those cases he is out of the puruiew of the foresaid stat of West 1. And in like sort he shal be hanged and not put to his penance if he be indicted and arraigned for a murder or manslaughter committed within the Kings Palace or where hée doth abide according to the stat of Anno 33. H. 8. St. 33. H. 8. 12. if he do stand mute or will answer indirectly 8 In all cases where a man vpon his arraignement doth stand mute Inquirie of him that standeth mute before he shal be hanged put to his penance or otherwise suffer death it shal be inquired if he do stand mute by fraud or by the act of God for if it bee by the act of God 43. Ass p. 30 the Court ex officio ought to inquire if he be the same person and of all other pleas that he might haue pleaded if hée had not béene mute to haue staid execution M. 8. H. 4. 1. And this inquirie is but of office and shall be made by the Marshals seruants and others But if it be in case where an issue is ioyned by the consent of the parties and after when the Enquest doth come the prisoner doth stand mute there the Court shall charge the Enquest which appeareth therewith without putting any of the Marshals seruants vnto them and so change that which was a Iurie by the consent of the parties to an Enquest of office And their charge shall be to enquire of the time when he did speake and if he be mute of malice or in delay of his execution or by the act of God But this charge or inquirie ought not to be made or giuen where the prisoner did speak to the Court when he was at the bar and after the same day because he would not ioyne issue or challenge peremptorily aboue the number appointed to him by the law be adiudged to his penance for then it doth appear to the court that he doth it of malice 10. E. 4. 19 And the same law is if a prisoner after his confession or attainder hath continually remained in prison and is brought before the same Iustices before whom hée did confesse his felonie or was attainted to answer why execution should not be done of him and he will stand mute in this case there néedeth no inquirie to be made if he be the same person or not for that doth appeare to the Iustices by his continuall remaining in prison But it is otherwise if he goe at libertie after his attainder by abiuration outlawrie and such like 4. E. 4. 11. 14. Ed. 4. 7. 8. H. 4. 2. 9 The iudgement in the sayd penance The Iudgâ—ment in penance viz. in the said paine heauie and grieuous is That the prisoner shall be sent to the prison from whence hée came and put into a meane house stopped from light there shal be laid vpon the bare ground without any litter straw or other couering and without any garment about him sauing something to couer his priuie members and that he shall lie vpon his backe and his head shal be couered and his féet bare and that one of his armes shall be drawne with a cord to one side of the house and the other arme to the other side and that his legges shall be vsed in the same manner and that vpon his bodie shal be laid so much yron and stone as he can beare and more and that the first day after he shall haue thrée morcels of barlie bread without any drinke and the second day he shall drinke so much as he can thrée times of the water which is next the prison doore sauing running water The forfeiture without any bread and this shal be his diet vntil he die Fitz. Escheat 10. And he against whom this iudgement of penance shal be giuen shall forfeit to the king his goods but he shall forfeit no land Iudgement and Execution in Treasons Felonies c. HAuing written of Treasons Felonies shewed who be principals and who be accessories therein how the offendors therein are to be pursued by Appeales or inditements what pleas they may plead how they are to be tried that the truth of each persons innocency or guiltinesse may appeare I am now to treat of the iudgement execution which by the lawes statutes of this Realme must follow therupon As first Iudgement where the prisoner is acquit if he that is arraigned of treason or felonie be acquit thereof there is none other iudgement but that the Court doth discharge him paying his fées 2 The iudgement of a man attainted of high Treason is Iudgement in high treason of a man that he shall bée led backe againe to the place from whence he came and from thence be drawn vpon a hurdle to the place of execution and there be hanged by the necke
and then be cut downe aliue and his intrals and priuie members be cut from his bodie and be burned in his sight and his head to be cut off and his body to bée diuided into foure parts 6. El. Dyer 230. and then to be disposed at the Kings pleasure Sauing that the iudgement of a man which is attainted for clipping the Kings money contrarie to the Statute of an̄ 25. Ed. 3. 2. shal be onely that he shalbée drawne and hanged though it was high treason by the common law so is expounded confirmed by that Statute But if any man shal be attainted of treson for cōmitting any of the offences made high treason by either of the Stat. of an̄ 1. M. 6. 1. 2. P. M. 11. 5. El. 11. 18. El. 1. 5. El. 1. 13. El. 2. 23 El. 1. 27. El. 2. 3. Iac. 4. he shal be adiudged a traitour S. Treasons and shall haue iudgement and suffer as in cases of high treason viz. he shal be drawne hanged and quartered as is before mentioned And though there be no mention made thereof in the iudgement yet he that is attainted of treason or felonie by verdict confession outlawrie or abiuration shall also forfeit his lands and goods his wife shall loose her dower and his blood shal be corrupted sauing in certaine cases 3 The iudgement of a woman which shal be attainred of high Treason or petite treason The iudgement of a woman traitour is 1. R. 3. 4 That she shall be ledde backe againe to the place from whence shée came and from thence be drawne vpon a hurdle to the place of execution and there be burned to death 8. El. Dy. 254. But if one man doe murder an other and the wife of him that was murdered be accessorie to her husbandes death the murderer and the wife both shall be hanged and she shall not be burned because she was but accessory 4 The iudgement of a man attainted of petit treason Iudgement of a man in petit treason is That hée shall be ledde backe againe to the place from whence hee came and from thence drawne vpon an hurdle to the place of execution and there to be hanged by the necke vntill he be dead Iudgement in felonie 5 The iudgement of a man attainted of murder burglarie robberie or other felonie is That he shall be ledde backe againe to the place from whence he came and from thence carried to the place of execution and there be hanged by the necke vntill he be dead And the like iudgement is giuen against a woman being attainted of anie of the same offences 6 The iudgement in misprision Misprision of treason is That the offendor shall forfeit to the King his goodes and his lands during his life and shall be perpetually imprisoned during his life Attainder of treason by the common lawe 7 In the foresaide iudgement giuen in high treason by the order of the common Lawe there can be no errour assigned St. 33. H. 8. 20. but it is as strong as if it had béene doone by Act of Parliament For the Statute made Anno 33. H. 8. hath ordained That if any person or persons shall be attainted of high treason by the course of the common Lawes or Statutes of this Realme that in euery such case such attainder by the common Lawe shall be of as good strength value force and effect as if it had beene done by authoritie of Parliament Iudgement of pennance 8 The iudgement of him who being indited of felonie will stand mute of malice or not answer directly or will refuse lawfull triall P. 4. E. 4. 11. being called Pennaunce or paine for t dure is That the prisoner shall be sent to the place from whence he came c. S. Standing mute c. 9. Iudgements in felony by Iustices of Nisi prius 9 As touching those who shall giue iudgement against the offendors aforesaide it is ordained by the Statute of Anno 14. H. 6. St. 14. H. 6. 1 That the Iustices before whome Inquisitions Enquests and Iuries shall be taken by the Kings Writte called Nisi prius according to the forme of the Statute thereof made haue power of all the cases of felonie and of treason to giue their iudgements as well where a man is acquitte of felonie or of treason as where he is thereof attainted at the day and place where the saide Inquisitions Enquests and Iuries shall be taken and then from thenceforth to awarde Execution to be made by force of the saide Iudgements 10 Because it oft times falleth out that an offendor is found guiltie of treason or felonie before some Iustices of Gaole Deliuerie for the which Iudgement of death should or might ensue and yet that person is reposed to prison without iudgement at that time giuen against him and then before the next Gaole deliuerie the same Iustices of Gaole deliuerie doe die or be remooued and others be assigned Iustices of Gaole deliuerie in their places by the Kings Commission which as many did conceiue it could not giue iudgement of that prisoner so repried by the former Iustices by warrant of the foresaide Statute of 14. H. 6. 1. or for some other cause For the remedy whereof by a Statute made Anno 1. Edw. 6. St. 1. E. 6. 7. it is enacted Iudgement by new Iustices That in all Cases where any person shall be found guiltie of any Treason Murder Manslaughter Rape or other felonie whatsoeuer for the which iudgement of death should or may ensue and shall be repried to prison without iudgement at that time giuen against him Those persons that at any time shall by the Kings Letters patents be assigned Iustices to deliuer the Gaole where anie such person found guiltie shall remaine shall haue full power to giue Iudgement of death against such person so found guiltie and repried as the same Iustices before whome such person was found guiltie might haue done if their Commission of Gaole Deliuerie had remained in full force 11 The Iudgement in petit Larceny Iudgement in petit larcenie is that the offendor shall be ledde backe againe to the Gaole Stockes or place from whence hee came and there to remaine a wéeke a moneth or c. and then in such a Citie Borough Market towne Village where the fact was done or other place assigned by the Iustices to be tied to a carte stripped from the girdle vpward and whipped vntill his bodie doe bléede once twice or thrice c. according to the Iustices discretion 12 If a woman be indicted and arraigned of felonie Stay of a womans execution being with childe it is no plea for her to say that shée is with childe but she must pleade to the felonie Not guiltie and if she be found guiltie then shee may alleadge that shée is with childe and then the Marshall or Sherife shall be commanded to returne an
Felon both dwell and therefore vpon a fugam fecit presented before the Coroner 22. As p. 96. the goods ought to be seised by the Shirife and praysed by an Enquest and the appraisement must bée inrolled in the Coroners Roll and the goods shal be deliuered to the towne to answere to the king for them Fi. Cor. 366 and though the goods be not deliuered to the towne yet if the goods were in the Felons possession at the time of his conuiction or flying the towne shall answere for them And some do affirme that the shirife and the Dozeners may seize Felons goods into the kings hands and the shirife shall deliuer those goods to the towne to answere to the king at the comming of the Iustices in Eyre But if neither the Shirife nor the Dozeners doe seize the same goods yet the towne shall answere to the king for them at the comming of the Iustices in Eyre For as soone as a fugam fecit is found before the Coroner Fi. Forf 32 the towne shal be presently charged with the goods of him that did flye away And though it be presented before the Iustices that a Felon was deliuered to the shirife with the manoure and with all his goods yet the towne shal be charged with the said Felons goods though the same was found and presented with intent to ease or discharge the same town And in like sort notwithstanding it doth appeare by the Coroners Roll Fi. Cor. 300 that the goods of a Felon were deliuered to one man of the town yet the king shall leuy those goods of the whole towne But when the shirife doth come to leuy those goods of the town by the shirifes consent they may be leuied of him only who had them in custody Fit Co. 181 One that was indicted of Felony appeared at the Exigent and pleaded and was acquit and his goods being forfeited because he did not come in before the Exigent awarded were praised by the Enquest which acquitted him at forty shillings and the same Enquest found what towne was charged with them which said presentment of the Enquest was inrolled and it was adiudged that the same towne may seize the same Felons goods in what place soeuer they can find them And because the towne where the Felons goods be shall answere for them therefore they which doe take into their possession any of the same Felons goods and other goods which do belong vnto the king as Deodands and such like are to be amerced by the Iustices in Eyre if the same goods be not deliuered vnto them by the towne which hath the charge of them for that the same towne hath the custody of them But by a Statute made Anno 31. Ed. 3. St. 31. E. 3. 3 the towne shal be eased of this charge if they can shew what other person hath detained those goods and that they could neuer haue possession of them the words of which statute be If any man or towne be charged in the Exchequer by the Estreats of the Iustices of the goods of Fugitiues and Felons and he will alledge in discharge of himselfe another that is chargeable he shal be heard and right shal be done And therfore if it be found by office before the Escheator that the goods of a man attainted of Felony be in the custody of such a person in this case a Scire facias shal be awarded vpon the same office against the said person to shew if he hath any thing to say why he should not answer those goods But if it be found by the Enquest which did attaint the Felon before Iustices of Gaole deliuery Iustices of Oier and Determiner or Iustices of Peace that any person doth detaine the goods of a Felon attainted the said Iustices cannot award proces thereupon against the party that doth detaine the same goods but they must send their Estreats into the Exchequer and the officers of the exchequer will award proces against the same party to leuy the same goods And yet if he that is presented to detaine the same goods do find himselfe grieued therewith he cannot haue a Trauerse in the Exchequer to that which is found by the Iury because the court of Exchequer hath not the record before thē neither can he trauerse the same before the Iustices of Gaole deliuerie Iustices of Oyer and Determiner or Iustices of peace for that they cannot award a Supersedeas to the Barons of the Exchequer to surcease their Proces But his onely remedie in this case is to procure a Certiorari to remooue the Record into the Kings Bench and there to tender his trauerse and auerrement and to haue a Supersedeas from thence to the Barons of the Exchequer to surcease their Proces And the same law is if the like thing be found by an Enquest in the Kings Bench after they haue deliuered their Records thereof into the Exchequer And a man which was indicted for the taking of goods of one that was attainted of Treason was put to the answer thereof So that sithence the sayd statute of 31. Edw. 3. others haue béene charged with felons goods as well as townes But the Sherife was alwayes charged with the profits of felons fugitiues lands Fi. Cor. 39◠according to the extent thereof The Sherife charged with felons lands and not any towne And so he was charged with goods cōfiscat as where vpō an indictment of felonie Fitz. Cor. 355. 368. the manoure is brought into the Court and the partie indicted doth disclaime therein by this disclaimer the King shall haue the manoure and the Sherife shall be charged therewith And the same manoure shall be praysed by the Enquest that doth trye the felonie and if it be found by the same Iurie that it was impaired by the Constable or any other who had the same in kéeping the Sherife shal be commaunded to leuie so much in value as it was impaired by the said Constable or other And in some cases the Sherife shall be charged with a felons goods Fitz. Cor. 290. 308. and not the towne where the felon did dwel or where his goods remained but that must be by agréement betwéene the said Sherife and the towne To whom the forf of lands for high treason shal accrue 47 In High treason the King shall haue the forfeiture of the offendors lands of whom soeuer they be holden and that by the common law for the offence committed is not to any subiect but to the Soueraigne gouernour himselfe his Crowne and Realme which is an offence of so high a nature that it cannot be recompenced with all that the offendor hath and then it should bée lesse counteruailed if any other should bée partaker with the King therin And the meane Lords shall receiue no losse thereby for they had nothing in the land but a Seigniorie out of it And if they hold ouer of the King by the like seruices then haue they lost
felony committed to pursue the Felon so hastily that if it be possible he may take him with the manoure and thereupon bring his appeale against him Fi. Cor. 379. and conuince him of the Felony And the said spéedy and diligent pursute of his is called Fresh suit which thing being found by a Iury the king ought to make restitution to the appellant of his goods contayned in the appeale which his officer or any other to his vse did seize But if it be not found by a Iury that the owner did make Fresh suit the said owner shall loose his goods and the king shall haue them although the Felon be conuict at the same parties suit For as the Law doth so abhorre Felonies and Felons that it punisheth a Felon with the losse of his life his lands goods and all that he hath so doth it in such sort condemne the concealing wincking at or slacke pursute of a felon that it punisheth a true man with the forfeiture of his goods stolne from him for omitting his duty in making fresh sute after prosecuting and pursuing to death of a knowne Felon If the manoure wherwith the Felon is taken be portable or otherwise may be conueniently done it ought to be brought into the Court before the Iustices and if it be in a chest boxe cloake-bag Fi. Cor. 392. or male the appellant must declare the goods particularly which be in it before it be opened or that he can haue it restored vnto him againe And if the Fresh suit be made by the seruant of him that is robbed and not by the party himselfe Fresh suit by the seruant yet it is sufficient to procure him restitution of his goods And if the Felon which committed a Robbery or other Felony be not taken by the space of a yeare after the Felony committed yet if the party that was robbed or whose goods were stolne do his endeuour to apprehend the Felon and make diligent and speciall inquiry for him and after he is taken 7. H. 4. 43. though not at the suit of the party robbed or c. yet that shal be adiudged a sufficient Fresh suit and vpon his appeale brought and the offendor conuicted he shal haue restitution of his goods robbed or stolne What conuiction shal be sufficient to giue the owner restitution of his goods 2 Though in former times it was not adiudged sufficient for the appellant to conuict the offendor of Felony but he must haue attainted him thereof before he could haue had restitution of his goods and if the Felon were in that case that he could not be attainted at the owners suit he should not haue had restitution of his goods but they should haue bin forfeited to the king Fi. Cor. 319 were the suit neuer so fresh As if the felon being pursued by the party robbed with huy and cry did flie to a Church and made his abiuration H. 8. E. 3. 10. or that the Felon was in prison and died before the owners appeale commenced But now the law is otherwise construed for it is thought to be a great extremity that the party which was robbed should loose his goods when he hath done all that hée could that there was no default in him And therefore it is now agréed Fi. Cor. 379 380. 26. As◠p. 32 Fit Forfeit 15. 8. H. 4. 1. 10. H. 4. 5 that if after the appeale commenced the Felon do die in prison or do breake the prison and flie to a Church and there abiure the Fresh suit shal be inquired of and if it be found the party robbed shall haue restitution of his goods And in like sort if the offendor will stand mute of malice or challenge peremptorily aboue the number that the law doth appoint him or will demaund his clergy in all these cases the Fresh suit shal be enquired of and if it be found the appellant shall be restored to his goods and yet in these cases the Felon is not attainted But because the appellant hath done his indeuor and all that is in him to attaint the Felon it is reason that he shall haue restitution of his goods When the owner shall haue restitution 3 Restitution shal be graunted and made to the owner of his goods stolne 21. Ed. 4. 73. Fit Co. 392 as soone as the Felon shal be attainted or conuicted by his appeale the Fresh suit shal be found though the appellant doth not pray or sue execution of the body of the appellée for the appellant hath prosecuted the suit so farre that hée hath brought the felon to the kings mercy so that the appellant nor any other for him can stay or release the execution but only the king and therefore it is reason that he now should haue restitution of his goods And some do affirme that when the appellant hath so farre prosecuted the appellée 21. Ed. 4. 16. that he is outlawed that the appellant shall haue restitution of his goods without inquirie of the Fresh suit because he hath pursued the suit against the offendor so farre as he can If an appeale be sued against the principall and accessorie and the principall is attainted and the Fresh suit is found 21. E. 4. 16 10. H. 4. 5. the appellant shall haue restitution of his goods without suing against the accessory And though he doe continue his suit against the accessory yet that shall not hinder his restitution for that he hath procured the attainder of the principall Felon and whether the accessorie bée attaint or acquit yet the appellant shall haue restitution of his goods And in like sort if an appeale be sued against two as principals and one of them is attainted and the other is acquited and the Fresh suit is found the appellant shall haue restitution of his goods for that it doth appeare that the appellant was robbed of his goods and had cause to sue for though the appeale be found false in part touching him that is acquit yet that shall not preiudice the appellant séeing that falsehood commeth not of his owne declaration but by the verdict of the Iury. If one man do robbe diuers men whereupon they doe bring their seuerall appeales and the Felon is attainted at the suit of one of them 4. E. 4. 11. and that it is moreouer found that he hath made Fresh suit in this case the residue shall not haue restitution vntill the Felon be found guilty at their seuerall suites and the Fresh suit also seuerally found 4 Before Restitution can be awarded of Felons goods Before whom and by whom inquirie of fresh suit is to be made an enquirie is to bée made of the Fresh suit before the Iustices and not before the Shirife though it be but an Enquest of Office and it is to bee done by the Iury that doth find the defendant in the appeale guilty of the Felony vnlesse it bée in case where the defendant doth confesse
doth acquite himselfe either at the appellants suit or at the Kings suit This suit of the K. is alwaies intended vpon an appeale when the def is arraigned vpon an appeale after that the appellant hath declared in his appeale and is Nonsute for if the def were acquite at the kings suit vpō an indictment of the same Felony yet he shall recouer no dammages And the manner how he shall recouer dammages being acquite at the kings suit doth somewhat vary from recouering of dammages at the parties suit for when it is at the kings suit he shall not recouer his dammages though he be acquite vntill he hath sued a Scire facias against the appellant to bring him into the Court againe being out of the Court before by his Nonsute But if he be acquit at the appellants suit he shall haue his iudgement to recouer dammages without suing of any further Proces And if a woman that is appellant be Nonsute and after doth take a husband Fit Damag 77. the Scire facias shall bée awarded against the wife onely B. What Iustices may inflict the penalty vpon the appellant 8 And though the foresaid statute of West 2. hath prouided St. 13. E. 1. 12 That the Iustices before whom the said appeale shal be heard and determined shall punish the appellant by a yeares imprisonment that punishment cannot be inflicted by the Iust of Nisi prius and yet by the statute of Anno 14. H. 6. St. 14. H. 6. 1 the Iustices of Nisi prius haue power to giue iudgement in Treason and Felony tried before them and that as well where the defendant is acquite as where he is attainted But yet they be not such Iustices as this statute doth meane 2. 3. P. M. Dy. 120. 14. E. 4. 14. 22. E. 4. 18. For that all the plea of Appeale was not heard before them but a parcell viz. the triall onely The dammages for seueral persons assessed seuerally 9 And whereas the said statute of West 2. would haue the Iustices in assessing of dammages for the defendant in an appeale St. 13. E. 1. 1◠to haue respect to his imprisonment arrest slander Therefore in an appeale brought against diuers if they be all acquite the dammages shal be taxed seuerally that is to say 8. H. 5. 6. Fi. Dam̄ 77. euery of the defendants shall haue his dammages taxed by himselfe for it may bée that one hath cause to recouer more then the other as if one were appealed as principall and the other as accessory or that the one were a gentleman or a man of greater estate and the other of a meaner degrée But yet this Recouery of dammages must be intended in one who is by the law enabled to recouer dammages for if an appeale be brought against a woman couert onely Fi. Cor. 276. without her husband as it must be vnles the husband committed felony with his wife the wife shall not recouer dammages though she be acquite And yet if the appeale be brought against the husband and wife together they be both acquite Fitz. Iudg. 108. then the dammages shal be seuerally taxed that is to say the husband shall recouer for his owne imprisonment and the husband and wife shall recouer iointly for the imprisonment of the wife St. 13. E. 1. 12 10 Though the foresaid statute of West 2. doth ordaine Where the appellant shall pay a fine to the king That the appellant shall be grieuously fined to the king yet that is to be intended where the appellant shall yéeld dammages to the defendant 9. H. 5. 1 for if the case be such as that the appellant shall not render dammages to the def then he shall not pay a fine to the K. but shal be amerced only as where an appeale doth abate by misnaming the appellant shal be only amerced And yet if the appellant be Nonsute after declaration 41. Ass p. 8. he shal pay a fine to the king and the Court will award proces against him for the same fine and though the defendant be after acquite at the kings suit by which meanes he shal recouer dammages against the appellant yet the appellant shall not pay a new fine to the king for that he hath paied it before And if the defendant be found guilty when he is tryed at the kings suit the appellant hath no remedy to recouer the fine which he hath paied before for by the common Law the plaintife in an appeale should haue paied a fine for his Nonsute which is the cause that a fine shal be paied by the appellant presently vpon his Nonsute St. 13. E. 1. 12 11 And for that the words of the said statute of West 2. be In what case inquiry shal be of the abettors If the appellants be not able to recompence the dammages inquiry shal be made by whose abetment the appeale was commenced by those words it is to be gathered that if dammages be not to be recouered against the appellant there shall neuer any inquiry be made of the abettors as in the cases aforesaid And where the words of the statute be If the appellant be not able to recompence the dammages it is intended all the dammages for if the appellant be sufficient to render part of the dammages 8. H. 5. 6. 8. Ed. 4. 3. but not the whole inquiry shal be made of the abettors and they shall pay the residue St. 13. E. 1. 12 12 The foresaid statute doth ordaine That inquiry shal be made of the abettors if the appellée do desire it so that the Court of Office ought not to inquire thereof but at the appellees request And if an appeale be brought against two and one of them is acquit by verdict if the Court do inquire of the abettors at the request of the same defendant and the Enquest doth find that there be no abettors and after the other defendant is arraigned and also acquite and if he do request also that inquiry may be made of the abettors the verdict of the former Enquest wherunto he was not priuy neither against which he shall haue any remedy being but an Enquest of Office shall not bind him but according to the words of the said statute inquiry shall be made againe at his request of the abettors for though it be commonly inquired of the abettors by the same Iury which doth trie the def yet their inquiry therein is but an Enquest of office for if they do find abettors the abettors when they doe appeare may trauerse all that the Enquest hath found As if they haue found that the appellant was not sufficient What pleas the abettors may plead or that such a man or such a one were abettors 8. Ed. 4. 3. because they that be supposed abettors may say by protestation not confessing the felonie for their plea that the appellant is sufficient or that they were no abettors for
6. 28 for then was not the plaintife lawfully acquit according to the Statute of Westminst 2. Iudgement in conspiracie 12 When any is conuict in a writ of Conspiracie at the suit of the partie the iudgement is none other but that the plaintife shall recouer his damages 43. E. 3. 33. and that the defendants shall bée taken But if one be indicted and conuicted of conspiracie at the Kings suit the iudgement is more grieuous for then the iudgement is That they shall loose their frée law to the intent 27. As p. 59 46. As p. 11. 24. E. 3. 34. that they shall not after that time be put in Iuries or Assises nor otherwise produced as witnesses to testifie truth and if they haue to do in the Kings Court they shall make their Attourney to sue for them and that they shall not approach within twelue miles of the Kings Court and that their lands goods and cattels shall bée seised into the Kings hand and their houses wasted and their wiues and children thrust out of doores and their trées pulled vp by the rootes and their bodies taken and imprisoned And this is tearmed a villainous iudgement because it bringeth villanie and shame to him that receiueth it 13 And because that wicked offence of conspiracie should bee inquired of and punished as well by indictment as by writ there was a Statute made Anno 28. Ed. 1. called Articuli super chartas whereby it was ordayned St. 28. E. 1. That in right of Conspirators false informers and imbracers of Enquests Assises and Iuries the King hath prouided remedie by a Writ out of the Chauncery And from henceforth the King will that his Iustices of the one Bench the other and the Iust assigned to take Assises Inquirie of Conspiracies by Iustices when they come into the countrey to do their office shall make enquiry thereof at any mans plaint without writ Register fo 118. and shall without delay do right to the plaintifes And the Iustices may be commaunded by a writ directed vnto them out of the Chancery to execute the same statute although the statute of it selfe is a sufficient warrant and authoritie for them so to doe which remedie mentioned in the foresaid statute was intended to be ordained by another statute called the statute of Conspirators St. 20. E. 1. made Anno 20. Edw. 1. at Berwike vpon Tweed which doth prouide a writ of Conspiracie against conspirators maintainers of false quarels and champertors and expresseth the forme of that writ St. 28. Ed. 1 14 But because the foresayd Statute of Articuli super chartas did prouide onely a remedie at the plaint of the partie and did not giue the Iustices in the sayd Statute mentioned power to enquire of heare and determine conspiracies at the suit of the King neither did it giue authoritie to the said Iustices to adiourne the suit if for shortnesse of time it could not be determined in the countrey St. 4. E. 3. 11. Therefore by a statute made Anno 4. Edw. 3. Inquirie of conspirators at K. or parties suit the same enormities were redressed by these words viz. Where in times past diuers people of the Realme as well great as other haue made alliances confederacies and conspiracies to maintaine parties pleas and quarels whereby diuers haue béene wrongfully disherited and some ransomed and destroyed and some for feare beeing maymed and beaten durst not sue for their right nor complaine nor the Iurors of Enquests giue their verdicts to the great hurt of the people and slaunder of the Law and common right Therefore it is agréed that the Iustices of the one Bench and of the other and the Iustices assigned to take Assises whensoeuer they come to hold their Sessions to take Enquests vpon Nisi prius shall enquire heare and determine as well at the Kings suit as at the suit of the partie of such maintainers bearers and conspirators and also of champertors and of all other things contained in the sayd Article as well as Iustices in Eire should doe if they were in the same Countie And that which cannot be determined before the Iustices of the one Bench or of the other vpon the Nisi prius for shortnesse of time shall be adiourned into the places whereof they be Iustices and there shall be determined according to right and reason 15 Notwithstanding the foresaid Statutes there were such deuises and practises to execute malice and reuenge and desire to put others in perill of their liues lands and goods that some would frame indictments or appeales against others of the K. good and obedient subiects of Treason Felony or trespas in seuerall forrein counties liberties and franchises where the said persons did neuer dwel nor conuerse and there they were pursued to the Exigent and sometime outlawed before that they could know of it For the remedie whereof there was a stat St. 8. H. 6. 10 made Anno 8. H. 6. wherein amongst other things it was enacted That if any person shall be indicted or appealed of felony Procurers of an indictment or appeale in a forrein county treason or trespas in a forein county he shal in an action vpon the case recouer treble damages against euery procurer of such indictment or appeale after hee is duly acquited by verdict And the like proces shal be in the same as in an action of Trespas vi armis S. Appeales 61. An offence supposed to be in a place where there is none such 16 Because diuers people vpon malice enuie and desire of reuenge did ofttime cause the K. liege people to be appealed or indicted in diuers counties of Treasons or Felonies supposing by the said appeals or indictments that the said Treasons or Felonies were committed in one certaine place whereas there is no such place within the said county where the said indictmēt is found nor any such place in the county as is declared by the said Appeale Therefore by the stat made anno 7. H. 5. anno 9. H. 5. anno 18. H. 6. it was ordained St. 9. H. 5. 1. St. 18. H. 6. 12. That the said Appeals and indictments and the proces thereupon shal be void and adiudged of no force And that the said Appellées and Indictées may haue their writs of Conspiracie against their indictors procurors and conspirators and recouer their damages And that the indictors procurors and conspirators shal be punished by imprisonment fine and ransome for the K. aduantage by the Iustices discretion ⧠The Coroner and his Authoritie and dutie in Felonies c. 1 A Coroner is an antient officer of trust in this realm The Coroners Office ordained to be a principall preseruer and kéeper of the peace to make record of the pleas of the Crown and of his owne view and of abiurations and of outlawries and of Appeales and accusations of felons made before him and of nonsuits of plaintifes in Appeales and of all
man be slaine within the K. house verge That all Inquisitions vpon the view of persons slaine within any of the Kings Palaces or houses or any other house at such time as he shall bee abiding in his royall person viz. within Edifices Courts places gardens orchards or houses within the Porters ward of any of the house or houses aboue rehearsed or within any gardens priuie walkes orchards tylt-yards wood-yards tenice playes cocke fights bowling allyes neere adioyning to any of the houses aboue rehearsed and being part of the same or within two hundred foot of the standard of any outward gate or gates of any of the houses aboue rehearsed commonly vsed for passage out or from any of the house or houses aboue specified shal be taken by the Coroner of the houshold of the King or his heires without adioyning of any other Coroner of any Shire by the othes of twelue or more of the Yeomen officers of the Kings c. houshold returned by the two Clerkes Comptrollers the Clerkes of the Checke Clerks Marshall or one of them for the time being of the foresayd houshold to whom the sayd Coroner shall direct his Precept which Coroner c. shall be assigned by the L. Steward for the time being And the said Coroner shall from time to time for euer without delay certifie vnder his Scale and the Seals of such persons as shal be so sworne before him all such Inquisitions Indictments and Offices vpon the view of all dead bodies which shall bee slaine within any of the K. Palaces or houses or other house aforesaid before the sayd L. Steward and in his absence before the Treasurer Comptroller and Steward of the Marshalsey or before two of them whereof the said Steward of the Marshalsey to be one And such Inquisitions and Offices so certified shal be taken as good to all intents as any Inquisition taken vpon the view of the bodie of any person being dead by any Coroner of any countie of this Realme hath béene or shal be adiudged St. 28. E. 1. 3 18 Whereas the foresaid stat of 28. E. 1. hath ordained One man Coroner of the K. house and of the county That if the death of a man doth chance in any county where the K. house is and within the Verge the Coroner of the same countie shal be commanded with the Coroner of the K. house to execute his office and to inroll it But if a murder or manslaughter be found within the countie of M. within the Verge by an Inquisition taken before one which is then both one of the Coroners of the county of M. and also Coroner of the K. house Co. li. 4. 46. and then there one is indicted of the same murder or manslaughter this is a good indictment for the intent and meaning of the said stat of 28. Ed. 1. is performed though not by two persons yet by one man hauing two offices and also the mischiefe recited in the said Act is auoyded for though the Court doth remoue yet the Coroner of the county may procéed ⧠Who shall be Iudge of Treason and Felonie 1HAuing written at large of Treasons and Felonies and shewed what sorts and how many of either of them there be and which of those were deliuered vs by the common law and which ordained by statute And declared who be principals and who be accessories in the said crimes how the offendors therein vpon a pricke and guilt of conscience doe ofttimes breake prison and indeuor to escape and how by Huy and cry and other means they be apprehended and brought to be tryed by the iustice of the law how they be accused by Appeals or Indictments in what sort they shal be restained and kept sub custodia legis in prison or by mainprise or bail vntil they haue answered their said offences And also hauing expressed what pleas the partie accused hath to plead for himselfe or other helps to defend himselfe by whom and what means those pleas shal be examined and what fauours bee affoorded him in the tryall therof and what iudgement execution forfeitures the law doth inflict vpon those that in contempt of her do commit the said capitall and most grieuous offence And further hauing dilated how a true man being vpon malice and falsly charged with felony by an Appeale or Indictment shall in some satisfaction of his discredit and losses recouer damages against the appellant his abettors or the conspirators And hauing laid open the authority duty of the Coroner who is a most antient officer of trust in this Realm a speciall preseruer of the peace of the King and the kingdome I am now lastly to write who shall bee Iudge in the foresaid Treasons and Felonies and shal inflict punishment vpon euerie transgressor of the said lawes according to his desert Wherein is to be considered that the dead letter of the common or statute law cannot be that Iudge to inquire of felons examine them commit them to prison indict them arraigne them allow them their lawfull triall examine their causes and yéeld them iustice according to their seueral demerits by acquital or condemnation but it must be Lex loquēs viz. That Iudge must be a man of learning and vprightnesse which by his mouth will speake and attribute to euery person that which the wisdome and integritie of his heart doth conceiue to be iust lawfull and due vnto them And though that Iudge ought so to be countenanced and protected by the regall authoritie that he shall not néed to feare the face of any man for doing of iustice and shall be enabled to crush and suppresse all offences within his iurisdiction yet the king himselfe cannot be that Iudge The K. cannot be Iudge in Treason or Felonie nor sit in iudgement in causes of treason or felonie because he is one of the parties to the iudgement for al treasons felonies be done be supposed to be done contrary to the peace crowne dignitie of the K. And further the escheates and other forf of lands leafes goods and cattels which do come by the attainder of any person of treason or felonie do for the most part by the law accrue to the king And so if the King might be Iudge hee should bee Iudge in his owne cause which Ius gentium doth not permit But the King by his Commission may commit that authoritie to others who may iudge betwéene him and the supposed offendor What sort of men ought to be Iudges And the King ought to make choyce of such a man to be Iudge as is wise and doth feare God who hath truth in his mouth and no couetousnesse in his heart who will neither decline from the troden path of iustice to the right hand nor to the left for the hope of prosperity or feare of aduersitie nor will draw the Kings sword to reuenge his owne wrongs who will denie iustice to none neither himselfe will expect or
within the sayd Palaces or other the sayd houses at any time committed And if any person or persons bée indicted by the sayd Iurie so sworne before them as is aforesaid or by Inquisition before the Coroner of the sayd houshold and certified before the sayd Lord Steward or in his absence before the sayd Treasorer Comptroller and Steward of the Marshalsey or two of them whereof the sayd Steward of the Marshalsey to bee one Then immediatly the said Lord Steward or c. Treasorer Comptroller and Steward of the Marshalsey or two of them whereof c. before whom the sayd Presentment Inquisition or Indictment shall bée so found or certified by the sayd Coroner shall arraigne before them euerie such person so indicted according to the course of the common law and forthwith after issue ioyned betwéene the King and the prisoner so arraigned the same day and place or any other shall make another Precept to the sayd Clerks Comptrollers Clerkes of the Checke and Clerkes Marshals of the said houshold or to one of them to summon and returne one Iurie of foure and twenty persons to appeare before the sayd Lord Steward or c. Treasorer Comptroller and Steward of the Marshalsey or two of them whereof the sayd Steward of the Marshalsey to be one at such day time and place and vpon such paine as shal be then limited of the Serieants and Gentlemen Officers of the Kings chamber and of the sayd houshold which shall take wages by the K. Checke roll And the sayd Steward or c. Treasorer Comptroller and Steward of the sayd Marshalsey or two of them whereof the sayd Steward to be one before whom such Iurie shall bée so returned shall cause twelue of the same Iurie to bée sworne truely to try between the King and such person as shall bée so indictected and arraigned of such Treasons Misprisions of treasons Murders Manslaughters and other malitious strikings by reason whereof bloud shall bee shed against the Kings peace or any of them And if any such person or persons so arraigned be found guiltie of any Treason Misprision of Treason Murders or Manslaughters then hee shall haue iudgement of life and member and suffer such paines of death and shall forfeit all their mannors lands tenements goods and cattels in like manner as if the same person and persons had beene found guiltie of any of the sayd offences by the order of the common law without the benefit of Clergie or Sanctuarie Prouided alwayes that the tryall of Peeres for any offence before mentioned shal be as it hath beene vsed in times past St. 3. H. 7. 14 5 By the stat made Anno 3. H. 7. it was ordayned That the Steward Treasorer Iudges of conspiracie in the K. house and Comptroller of the Kings house for the time beeing or one of them shall haue authoritie to inquire by twelue sad men and discréet persons of the Checke rol of the Kings houshould if any seruant admitted to be his seruant sworne and his name put in the Checke roll of his houshold whatsoeuer he be seruing in any office or roome reputed and taken vnder the estate of a Lord make any confederacies coÌ„passings conspiracies or imaginations with any person or persons to destroy or murder the K. or any Lord of this realm or any other person sworne to the kings Counsel Steward Treasorer or Comptroller of the Kings house And if it be found before the said Steward for the time being by the said xij sad men that any such of the K. seruants as is abouesaid hath confederat compassed conspired or imagined as is abouesaid hee so found by the inquirie shall bee put thereupon to answer And the Steward Treasorer and Comptroller or two of them haue power to determine the same matter according to the law and if he put him in tryall then it shall bée tryed by other twelue sad men of the said houshold And if such misdoers shall be found guiltie by confession or otherwise the said offence shall be iudged felonie S. Felonie by Stat. 1. Iudges within the Verge 6 The Iustices of the Kings Bench the Iustices of Oyer and Terminer Co. li. 4. 47. Iustices of Gaole deliuerie and Iustices of Peace haue power to inquire heare and determine all murders and felonies within the Verge for that their authoritie and iurisdiction is generall through the whole countie and so it hath beene alwayes vsed 7 The Iustices of the Kings Bench Iudges of the K. Bench. without hauing Commission may heaâ—e and determine all maner of Treasons and Felonies And by the Stat. of Anno 35. H. 8. Anno 5. Ed. 6. it is enacted St. 35. H. 8. 2 St. 5. E. 6. 11 That all manner of offences being alreadie made or declared or hereafter to be made or declared by any laws and statutes of this Realme to be Treasons Misprisions of Treasons or concealments of Treasons done perpetrated or committed or hereafter to bee done Iudges of Treasons committed beyond the Sea perpetrated or committed by any person or persons out of this Realme of England shall bee inquired of heard and determined before the Kings Iustices of his Bench for Pleas to be holden before himselfe Dy. fol. 287 298. by good and lawfull men of the same Shire where the sayd Bench shall sit and be kept or else before such Commissioners and in such Shire of this Realme as shall bée assigned by the Kings Commission and by good and lawful men of the same Shire in like manner and forme to all intents and purposes as if such Treasons Misprisions of Treasons and concealements of Treasons had béene done and committed within the same Shire where they shal be so inquired of heard and determined Prouided alwayes that if any Peeres of this Realme shal be indicted of any such Treasons or other offences then they shall haue their triall by their Péeres as heretofore hath béene accustomed 8 By the Stat. intituled De finibus St. 27. E. 1. 2. St. 4. E. 3. 2 made Anno 27. Ed. 1. and also by the stat of Anno 4. E. 3. it is ordayned That good and discréet persons other than of the Benches Iudges of gaole deliuery if they may be found sufficient shal be assigned in all the shires of England to take Assises Iuries Certifications and to deliuer the gaoles And the Iustices assigned to deliuer the gaoles shall haue power to deliuer the same gaoles of those that shal be indicted before the gardeins of the peace And the said gardeins shall send their indictments before the Iustices And they shall haue authoritie to inquire of Sherifes Gaolers and others in whose ward such indicted persons shal be if they make deliuerance or let to mainprise any so indicted which be not mainpernable and to punish the said Sherifes Gaolers St. 3. H. 7. 1 and others offending against this Act. And by the stat of An. 3. H. 7. it is
said Iuror shall pay tenne times so much as he hath receiued And all those which be Embraceors to lead and procure such Enquests in the Countrey The penalty of Maintenance in Iurors and Embraceors to make againe and profit thereof shal be punished as the Iurors And if the Iuror or Embraceor so attainted haue not wherewith to make recompence in forme aforesaid he shall be one yeare imprisoned which imprisonment shall not bee pardoned for any fine and the party grieued may haue his action before other Iustices if he will But no Iustice or other officer shall inquire of office vpon any of the points of this Statute but onely at the Suite of the partie or of others as is aforesaid See Periurie 18. Maintenance punished by a Decies tantū 7 Vpon the foresaid Statutes of 34. Edw. 3. 38. Edw. 3. is the writ of Decies tantum grounded By the which writ the party grieued by any such Maintenance and taking of money by a Iuror or Embraceor shall recouer against the offendor tenne times so much as he hath taken whereof the King shall haue the onely halfe and the same party who doth recouer the other halfe 40 E. 3. 33. 41. Ed. 3. 9. And a man may haue one writ of Decies tantum against all the Iurors of an Enquest if they all did take money to giue their verdict or against so many of them as did take money Fitz. Decies tantum 1. And so he may haue one writ against the Embraceors and the Iurors and recouer against euery of them tenne times so much as he receiued to giue his verdict or to embrace as if one of them tooke tenne shillings another twenty shillings a third 5. pounds c. and the dammages shall be taxed against euery of them seuerally And therefore when one action is brought against seuerall Iurors for taking of money to giue their verdict euery of them must plead his plea seuerally 21. H. 6. 20. and by himselfe If a Iuror doe take money to giue his verdict on the one part if after he doth giue no verdict or if hee with his companions doe giue a true verdict or such a verdict as the party who bringeth the writ receiueth no hurt thereby or if the plaintife be nonsute 37. H. 6. 31. yet a Decies tantum may bée brought against him For it is not the giuing of the verdict which the Law doth respect and punish but the taking of the money to giue his verdict and so to doe an vnlawfull act But otherwise it is of an Embraceor for if he take money to embrace and yet doth not embrace no action will lye against him for he is no Embraceor if he doe not embrace In a writ of Decies tantum if the Iury find 41. E. 3. 9. that one of the Iurie in the former Issue did take land for fortie pounds lesse then it was worth to giue his verdict the same Iuror shall forfeit to the King and the party tenne times so much viz. foure hundred pounds And so shall the Embraceor forfeit tenne times so much if he hath the land for lesse then it is worth after the Iurie hath giuen their verdict by his meanes or persuasion And the one moytie which is due to the King in this case according to the foresaid Statute of Anno 38. Edward 3. 41. Ed. 3.15 Fitz. Decies tantum 12. 44. Ed. 3. 36. is a fine to the King for his offence and not a debt to the King and therefore the partie grieued shall be first satisfied of his moytie and after him the King shall bée payed in the receit of the Exchquer Men that be learned in the Law may for their fées speake to the Iury 6. E. 4. 5. and enforce their clients euidence vnto them so much as they can openly vpon the triall of the cause But they may not otherwise labour to the Iury to giue their verdict and receiue money to that end for then they be Embraceors If he that is the party grieued who may haue against any Iuror a Decies tantum for taking of money doe release to the same Iuror all actions this will not auaile the same Iuror for by the said statute any person that will being a stranger may haue a Decies tantum against the same Iuror But if the King doe release before any suit commenced it is a good barre against all persons as it is in other popular actions 1. H. 7. 3. 5. E. 4. 2. and yet if the party hath begun his suit the Kings release wil not discharge it but for his owne part for that which was before popular is now become his priuat action and a condemnation or acquitall at his suit is a discharge against the King and all others 8 There is another kind of Maintenance by Iurors Maintenance by Ambidexter that the Law doth prohibite which is when a Iuror doth take money or other thing of the one part and the other who is commonly called Ambidexter for the punishment of whom Sta. 5. E. 3. 10 by a statute made An. 5. E. 3. it was ordained That if any Iuror in Assises Iuries or Enquests take of the one part and of the other and be thereof duly attainted he shall not after be put in any Assises Iuries or Enquests but shall be sent to prison and further punished at the Kings pleasure And the Iustices before whom such Assises Iuries Enquests shall passe haue power to inquire and determine according to this statute As this gréedie Ambidexter doth offend two Lawes so it is prouided to impose two seuerall punishments vpon him vpon a writ of Decies tantum brought against him he shall be compelled to pay to the King and the party grieued ten times so much as he hath receiued to giue his verdict according to the statute of 38. E. 3. And shall be no more put in Enquests but sent to prison and punished at the Kings pleasure according to the foresaid statute of Anno 5. Ed. 3. But no person shall be punished according to the said statute of Anno 5. 44. E. 3. 39. Fit Dec. tantum 12. Ed. 3. vpon any writ of Decies tantum brought against him but only vpon an Indictment at the Kings suit If any Iuror doe take money of eyther of the parties to a suit after his verdict giuen for giuing his verdict without making couenant therefore before hand 39. Ass p. 19 he shall not be punished according to any of the foresaid statutes of Anno 5. E. 3. 34. Ed. 3. or 38. E. 3. for he is out of the danger of the writ of Decies tantum and he shall not be imprisoned by force of the statute of Anno 5 Ed. 3. for he did not take mony contrary to the meaning of that statute But in that case he shall pay a fine to the king 9 As it is Champertie and therewith Maintenance to haue part of