persons vnlawfully assembled Then euery person which so being able and required doth willingly and obstinatly refuse so to doe shal suffer imprisonment for one yeare without baile or mainprise And as in al the cases aforesaid euery able person is bound vpon request to assist the Iustices shirifes other the Kings officers to pursue apprehend arrest and imprison Manquellors robbers felons or other disturbers of the peace and so to do his whole endeuor to be a conseruator of the peace of the Realme Euerie person must assist to execute the K. Writ In like sort is euery able person bound by the common law and by the Stat. of Westm̄ 1. Westm̄ 2. to be attendant vpon the Shirife St. 3. E. 1. 17. S. 13. E. 1. 39. or vndershirife in the execution of the kings writs and by that meanes to be a supporter of the justice of the Realme These offēces punishable in the Starre Chamber 86 Menaces assaults batteries imprisonments and maihems committed by some persons to some persons at some times in some places in some manner forme sort and with some circumstances besides the penalties aforesaid inflicted vpon the offendors therein are also punishable in the Kings high Court of the Starre chamber as other offences hereafter mentioned be as it doth more at large appeare in Oppressions 35. ¶ Of Riots Routs vnlawful and rebellious Assemblies RIots Routs The enormitie of Riots vnlawfull Rebellious assemblies haue bin so many times pernitious fatal enemies to this kingdom the peace tranquillity thereof haue so often shaken the foundation and put in hazard the very forme and state of gouernment of the same that our lawmakers haue béen enforced to deuise from age to age one law vpon an other one stat after another for the repressing punishing of them haue endeuoured by all their wits to snib the sprouts quench the very first sparkes of them as euery man may easily perceiue there was cause thereof who will looke back and call to his remembrance what that small Riot begun at Dartmouth in Kent in the raigne of King Richard the second betwéen the collector of a subsidy and a Tyler and his wife about the payment of one poore great did come vnto which being not repressed in time did grow to so great a rebelliō that after it put in hazard the life of the K. the burning of the Citie of London the ouerthrow of the whole Nobility gentlemen and all the learned of the land and the subuersion of this goodly Monarchy and forme of gouernment Or if they will call to mind the small Riot or quarrell begun in the raigne of King Henry the sixt between a Yeoman of the gard and a seruingman of Richard Neuils Earle of warwick which so farre increased for want of restraint that it was the roote of many wofull tragedies and a meane to bring to vntimely death first Richard Plantagenet Duke of Yorke proclaymed successor to the Crowne and the chiefe pillar of the house of Yorke and after him King Henry the sixt and Prince Edward his sonne the heires of the house of Lancaster and to ruinate with the one or the other of them most of the Péeres great men and gentlemen of the realme besides many thowsands of the common people West 1. 3 E. 1. 32. Sta. 7. Ed. 1. St. 13. E. 1. 6. And therefore King Edward the first did well ordaine That no Shirifes shall suffer Barretors or maintainers of quarrels in their Counties And that to all parliaments Treatises and other assemblies each man shall come peaceably without any armor and that euery man shall haue armor in his house according to his ability to kéepe the peace And King Edward the third prouided Statutes ordained to preuent forces or Riots that no man shall come before the Iustices St. 2. E. 3. 3. St. 5. E. 3. 14. nor goe or ride armed And that suspected lewd and riotous persons shall be arrested and safely kept vntill they be deliuered by the Iustices of Gaole deliuery St. 34. E. 1. 3. Sta. 2. R. 2. 6. And that Iustices of peace shall restraine offendors riotors and all other Barretors and pursue take and chasten them according to their Trespas and offence Sta. 5. R. 2. 6. St. 15. R. 2. 2 St. 7. R. 2. 13 King Richard the second did prohibit Riots Routs and forcible entries into lands that were made in diuers counties and partes of the Realme And that none from thenceforth should make any Riot or Rumor And that no man shall ride armed 20. Rich. 2. 1 nor vse Launcegaies And that no laborer seruant in husbandry or Artificer St. 12. R. 2. 6 or victualer shall weare any buckler sword or dagger And that all the Kings officers shall suppresse and imprison such as make any Riots Routs St. 17. R. 2. 8. or vnlawful assemblies against the peace King Henry the fourth enacted That the Iustices of peace the Shirife shall arrest those which commit any Riot Rout or vnlawfull assembly shall enquire of them and record their offences St. 13. H. 4. 7 King Henry the fift assigned commissioners to enquire of the same Iustices Shirifes defaults in that behalfe St. 2. H. 5. 8. and also limited what punishment offendors attainted of Riot should sustaine King Henry the seauenth ordained Sta. 19. H. 7. that such persons as were returned to enquire of Riots should haue sufficient fréehold or copihold land within the same Shire And that no maintenance should hinder their Inquisition And in the Raigne of Quéene Mary Sta. 1. M. 12. there was a necessary Statute established to restrain and punish vnlawfull and rebellious assemblies raised by a multitude of vnruly persons to commit certaine violent forcible and Riotous acts 2 As the said Lawes Statutes were deuised in seueral ages by the wisedom of the Realme to enquire of and restraine Riots Routs vnlawfull and rebellious assemblies and to checke violences and forces before they should grow to a head So haue our prouident forefathers erected the most honorable Court of Starre chamber The Court of Starre chambers authoritie to punish Riots c. to examine and punish those and other offences when they breake out to extremities viz. to great and haynous Riots or such like enormities thereby to kéepe euery person in awe and so the whole Realme in peace As appeareth by the Statute of Anno 3. H. 7. whereby it is inacted That the Chauncellour and Treasorer of England for the time being and the President of the Kings Councell St. 3. H. 7. 1. Stat. 21. H. 8. 22. and the kéeper of the Kings priuy seale or two of them calling to them a Bishop and a Temporall Lord of the Kings most honorable priuy Councell the two chiefe Iustices of the K. Bench and common place for the time being or other two Iust in their absence vpon bill or information put to
shall be attending vpon the Iustices to go and assist the same Iustices to arrest such offendors vpon paine of imprisonment and to make fine to the King 3 And forasmuch as the said Statute of 15. R. 2. doth not extend to Entries into tenements in peaceable manner and after holden with force nor if the persons which enter with force into any lands or tenements be wholy remoued and departed before the comming of the said Iustices or Iustice Neither is there any paine ordained if the Shirife do not obey the precepts of the Iustices in this behalfe St. 8. H. 6. 9. Therefore by an other Statute made An̄ 8. H. 6. it was ordained that the said former Statutes should be continued and executed And further that where any do make such forcible entrie into lands tenements or other possessions or hold them forcible Holding possession by force after complaint thereof made within the said Countie where such entrie is made to the Iustices of peace or to one of them by the partie grieued that the Iustices or Iustice so warned within a conuenient time cause the said Statute to be executed and that at the costes of the partie so grieued And whether such persons making such Entries be present or gone before the comming of the said Iustices or Iustice presently the same Iustices or Iustice in some good Towne next vnto the tenements so entred or in some other conuenient place according to their discretion shall haue authoritie to inquire by the people of the same Countie aswell of them that made such forcible entries into lands or tenements Feoffement of lands for maintenance as of them which hold the same with force And if it be found before any of them that any doth contrarie to this Statute then the said Iustices or Iustice shall cause the lands or tenements so entred or holden as aforesaid to be reseised and shal put the partie so put out in full possession of the same lands or tenements so entred or holden as before they were entred or holden And if any person after such entrie into lands or tenements holden with force make a feoffement or other discontinuance 〈◊〉 any Lord or other person to haue maintenaunce or to take away and defraud the possessor of his recouerie in any wise if after in an Assise or other action thereof to be taken or pursued before Iustices of Assise or other the Kings Iustices whatsoeuer they be by due inquirie thereof to be taken the same feoffements and discontinuances may be duely proued to be made for maintenance as is aforesaid then such feoffements or other discontinuances so as before made shall be void And if any person be put out or disseised of any lands or tenements in forcible manner or put out peaceablie after holden out with strong hand and armes against the Iustice of peace or after such entry any feoffement or discontinuance in any wise thereof be made An Assise or action of trespas againste disseisour by force to defraude take away the right of the possessor the party greiued in this behalfe shall haue an Assise of Nouel disseisin or a writ of Trespas against such disseisor And if the party grieued recouer by Assise or by action of Trespas and it be found by verdict or in any other manner by due forme of the Law that the partie defendant entred with force into the lands tenements or them after his entrie did hold with force then the plaintife shall recouer treble dammages against the defendant and moreouer the defendant shall make fine and ransome to the King The authority of officers of Cities and Townes enfranchised And the Maiors Iustices and Iustice of peace Shirifes and Bailifes of Cities and Boroughes hauing fraunchise shall haue in the said Cities Townes Boroughes like authoritie to auoid such Entries and in other articles aforesaid rising within the same as Iustices of peace and Shirifes in Counties and Shires haue 4 As by the foresaid Statute of 8. H. 6. if any person after entrie into lands or tenements holden with force shal make any feoffement or other discontinuance thereof to any Lord or other person to haue maintenance or to defraud the possessor of his recouery then the same feoffements discontinuances shall be void So by an other Statute made before that Anno 4. H. 4. St. 4. H. 4. 8. it was inacted A speciall Assise against a disseisor with force That if any man in his owne right to his vse or in an other mans right to his vse doth make any forcible entrie into an other mans lands by way of maintenaunce or doth take or carry away any goods of the possessors of the fréehold after any such forcible entrie then if the partie grieued or other lawfull man will affirme that the entry was made in such forcible manner the Chancellor of England may graunt to the partie greiued a speciall Assise And if the disseisor be attainted of such forcible disseisin he shall be one yeare imprisoned and pay to the partie grieued his double dammages and also dammages for his goods And one of the Iustices of the one Bench or of the other or the chiefe Baron of the Exchequer if he be learned in the law shall be named in euery such speciall Assise And no Supersedeas shal be granted to the contrarie of such Assise 5 Wherefore if a man be disseised by force of any lands or tenements by way of maintenance or that his goods be taken or carried away after such entrie made Or that he be put out or disseised of his lands in forcible manner Or that he be put out peaceablie and after holden out with force against a Iustice of peace Or after such entrie any feoffement or discontinuance be made to defraud and take away the right of the possessor then the partie grieued as his case requireth may haue a speciall Assise against the disseisor and recouer his double dammages Seuerall remedies for seuerall offences by force and dammages for his goods and the disseisor shall be one yeare imprisoned according to the foresaid Statute of 4. H. 4. St. 4. H. 4. 8. Or else he may haue an Assise of Nouel disseisin or an action of Trespas against the disseisor and recouer treble dammages and moreouer the disseisor shall make fine and ransom to the King according to the before rehearsed Statute of 8. H. 6. St. 8. H. 6. 9. Or if the plaintife will omit the benefit of recouerie of his dammages he may only craue and vse the assistance of a Iustice of peace to sée and remoue the force to record it to inquire of it and to make him restitution according as the truth of his case shall appeare to the said Iustice vpon his owne sight or be found by inquisition according to the former prouision of the said Statute of 8. H. 6. Or lastly he that is put out or holden out of his lands with force
of the stat of 18. El. 14 Maintenance Champertie buying of titles Embracery haue bin accounted so offensiue professed enemies to the iustice peace of the realm that though by the stat of an 18. El. it is ordained Stat. 18. El. 5 That euery informer vpon any other penall stat shal exhibit his suit in proper person pursue the same onely by himselfe or by his Atturney in court and that none shal be admitted to pursue against any person vpon any penall stat but by way of information or originall writ and not otherwise nor shall haue any deputy at all And that vpon euerie such information which shal be exhibited a speciall note shall be made of the very day moneth yere of the exhibiting therof into any office or to any officer which lawfully may receiue the same without any maner of antedate to be made thereof And that vpon euery such proces shal be indorced aswel the parties name that pursueth the same proces as also the stat vpon which the information in that behalfe made is grounded and that no Informer or plaintife shall compound or agrée with any person that shall offend or shal be surmised to offend against any penal statute for such offence but after answer made in court vnto the information or suit in that behalfe exhibited or prosecuted nor after answer but by the order or consent of the court in which the same information or suit shal be depending Yet in the said stat of 18. El. there is a prouiso That it shal be lawfull for any person or persons grieued by means of any maintenāce chāpertie buying of titles or other embracery to pursue vpō any stat prouided against maintenance champerty buying of titles or embracery as he or they might haue done before the making of the said act Which prouiso was made to the end that all persons grieued by reasons of any maintenance champertie buying of titles or embracery should be left at libertie to pursue chasten the offendors therin by all such means as former laws haue authorised thē not be restrained by any of the ordinances or articles before rehearsed for that the said offēces were by the makers of the said stat adiudged to be greater impedimēts obstacles to the execution of iustice than other penal stat were 15 As the policie of the realme hath deuised the foresaid popular actions and suits to enable euery person that will Assurances to haue mainte void in diuers cases to pursue prosecute maintainors champertors buyers of pretenced rights c. to the intent the sooner to root out extirpat those offendors who indeuor to wrest the execution of lawes out of their due course to subuert iustice thereby to hinder the peace of the realme so hath it in some cases gone further ordained that some assurances made for maintenance shal be presently void as it appeareth by the stat of an 8. St. 8. H. 6. 9 H. 6. wherby it was enacted Lands gotten by force assured to haue maintenance That if any person after his entry into lands or tenements holden with force do make a feoffement or other discontinuance to any Lord or other person to haue maintenance or to toll defraud the possessor of his recouerie in any wise If alter in an Assise or other action thereof to be takē or pursued before the Iust of Assise or other the kings Iustices whatsoeuer they be by due inquiry therof to be taken the same feoffements and discontinuances may be duly proued to be made for maintenance as is aforesaid that then such feoffements or other discontinuances so as before made shall be void St. 4. H. 4. 8. holdē for none And by the stat made an 4. H. 4. it was established That if any man great or small of what estate or condition they be Lands forcibly gotten by maintenance make any forcible entry in his own right or to his own vse or in anothers right to his vse by the way of maintenāce therof is attained at the suit of the party grieued he shal be one yere imprisoned pay to the partie grieued his double dammages And also he shall answer to the partie grieued damages for his goods cattels if vpon the said forcible disseisin he tooke away any 16 As by the before mentioned stat maintenance champerty What maintenance is punishable and what iustifiable embracerie buying of titles be in generall termes deciphered together with their seuerall penalties so haue the learned Iudges Sages of the law expounded the particular branches of euery of those stat as they grew in question were prosecuted in suit before them also resolued what maintenance is punishable and what iustifiable who may pursue an action writ bill or information c. of maintenance champerty c. against whom the same is to be brought for what offēce or cause the same is maintenable what pleas are to be pleaded to the writ or in bar of the said actions writs informations c. what iudgemēt shall ensue thereupon As euerie champertie is an vnlawful maintenāce prohibited by the foresaid stat of West 1. West 2. 9. H. 6. 64. St. 28. E. 1. 11. and punishable according to the before rehearsed stat of An. 28. E. 1. and euerie chāpertie is a maintenance the partie grieued may haue aswel a writ of Maintenance as of Champertie for by that meanes the champertor hauing bargained to haue part of the land or thing in question doth ofttimes moue further the suit suborneth witnesses corrupteth the Iurie and so subuerteth iustice but there must be a suit depending before it can be adiudged maintenance in any sort for if one man wil giue money to another to beginne and prosecute a suit against a third person 3. H. 6. 55. 8. H. 5. 8. 10. Ed. 4. 19. 30. Ed. 3. 3. this is no maintenance for that this mony was giuen when there was no suit depending and if there be a writ brought and neuer returned it is no maintenance No maintenance in a Iuror for giuing his verdict 17 If there be a suit depending betwéene two and they do ioyne an issue 18. E. 4. 2. 28. H. 6. 6. which is tried by xij men found for the plaintife in this case the defendant cannot haue an action of maintenance against the said Iurors or any of them for this verdit giuē for that they gaue their verdit according to their euidence and their knowledge of the truth of the matter and besides they did not thrust thēselues into that cause but were compelled to appeare by an ordinarie course of law being impanelled returned by the Sherife or some other lawfull officer Maintenance by a Iuror suing for iudgement but if after the verdit giuen any of the Iurie wil solicit or labor to the Iudge or Iudges of the court where the said suit
is depending to giue iudgement for the plaintife then the def may haue an action of Maintenance against him for that the same iudgemēt is a thing wholly belonging to the office of a Iudge and not of a Iuror therfore he doth therin intermeddle with another mans office and another mans cause more than he hath to do or may iustifie and so hath committed vnlawfull maintenance Maintenance in a Iuror 18 If a Iurie be charged to inquire of a matter in issue 17. E. 4. 5. 18. Ed. 4. 4. one Iuror may persuade his cōpanions or any of them to passe for the plaintife or def as he conceiueth the truth of the cause to be or as their euidence doth induce them this is no maintenance but if one of the Iurors will giue or promise money to another of his fellowes to giue his verdit for the pl. or def this is vnlawfull maintenance though he doth wage him to giue his verdit according to truth and right of the cause in issue Maintenance by speaking of words 19 If a man of great authoritie in a country will in the presence of a Iurie 22. H. 6. 5. 13. H. 4. 19. and the standers by at the tryall of an issue say openly that he will spend mony in the cause in question in the behalfe of the pl. or the def or that hee will giue money to labour the Iury or wil speake other great or high words in fauor of one of the parties this is vnlawful maintenāce in him though he do spend no mony in that cause nor doth labor the Iury therin for it may be that whē the Iury do by his words know his meaning they dare not in respect of his authoritie or greatnesse in that coūtie giue their verdit otherwise thā he would haue them None shall sit with the Iust of Assise on the bench And for the preuention of that kind of maintenance by a stat made An. 20. R. 2. it was ordained That no Lord or other of the country great or small St. 20. R. 2. 13. shall sit vpon the bench with the Iust of Assise in their Sessions in any of the Shires of England vpon paine of a great forfeiture to the King neither the Iustices shall suffer the contrarie to bée done Maintenance in comming to the barre with one of the parties And in like sort if a man of great authoritie in the Countie where an Issue is to be tried hauing nothing to doe in that cause doth come to the barre with the plaintife or defendant 22. H. 6. 6. that is one of the parties to an Issue that is then to bée tryed and standeth by him this is an vnlawfull maintenance in him though hée neither doth nor yet speaketh any thing in the matter for his presence and companie with the one partie doth shew to the Iurie his particular affection to the same partie and doth ofttimes induce them to fauour as much as labour and persuasion by words could doe And though the Iurie doe not respect him but giue their verdict for the other partie to that suit according to their euidence and the truth of the cause in question yet he hath done what in him lyeth to the contrarie 21. H. 6. 15. 22. H. 6. 5. 28. H. 6. 7. Dyer fo 95. 20 And so it is if two be in suit and do ioyne in issue Maintenance by giuing of money to labour a Iurie and the Master of one of the parties to that issue or any other will deliuer money of his owne to a stranger to labour the Iurie impanelled to try that issue to giue their verdit for his said seruant or friend this is maintenance vnlawfull in the Master or other though the partie to whom the money was giuen did neuer deliuer it to the Iurie nor did not labour vnto them in such sort as hée was directed or though the Iurie did giue their verdict against his said seruant for when the Master had deliuered the money to the stranger and told him to what purpose he should vse it he had done as much as he could do in that suit to hinder the course of iustice though his direction tooke no successe according to his desire And also it is vnlawfull maintenance if one giue money to a man that is impanelled of a Iurie to giue his verdict on the one side though that partie impanelled doth not appeare or do appeare and is drawne out by challenge or otherwise 22. H. 6. 6. And it is maintenance vnlawfull if one do threaten to kill or beat a Iuror if he do not giue his verdict for the one part to that issue which hee doth name though the same Iuror do otherwise 28. H. 6. 6. 21 If a Iurie do come to a mans house What is maintenance in a witnesse and what not and desire him to informe them of the truth of a matter whereof they do doubt and he doth informe them therof this is iustifiable But if one do come to a Iurie or of himselfe do labour to informe them of the truth of a cause in question this is maintenance vnlawfull and therefore punishable And so it is if the Court be informed by the plaintife or defendant when an issue is to be tryed that there is a man at the bar or in that place who doth know the truth of the matter in issue and doth desire that the same man may be examined by the Court to testifie the truth of that cause in question to the Iurie and the Court doth cause him to be called to testifie his knowledge therein and he at the commaundement of the Court deliuereth that which he doth know in that matter this is maintenance iustifiable But if the same partie will come to the barre of his owne head and testifie for the plaintife or the defendant this is vnlawfull maintenance and hée may be punished therefore 22. H. 6. 6. 22 If one man do labour to indict another by force whereof he is indicted Maintenance by procuring of an indictment in this case hee that is indicted may haue a writ of Maintenance against the procurer of that indictment and yet this is no quarrell but it is a taking of a part St. 1. E. 3. 14. and so prohibited by the stat of anno 1. E. 3. and it is in the nature of an action betwéene the King and the partie indicted and the foresaid statute is generall that it shall not be lawfull to any person great or smal to maintain quarels or to take parts to the let or disturbance of the Common law What is maintenance in a mainpernor 23 If a man be arrested indicted or sued 34. H. 6. 25. 14. H. 6. 6. 18. E. 4. 12. so that he is compelled to become bound with mainpernors for his apparance the mainpernor may come into the Court and sée the apparance of the same partie recorded and iustifie the
alwaies leuied of the buyers of such books contrarie to this statute For that it was then thought expedient that Printers and sellers of printed bookes should as well be restrained from the oppression of others by making excessiue prices in sale or binding of their bookes as it was by the said statute prouided that they should not be oppressed by others Therefore by the before rehearsed statute of Anno 25. H. 8. it was further established St. 25. H. 8. 15. That if any Printers or sellers of printed bookes inhabiting within this Realme do at any time in such wise inhance or increase the prices of any such printed books in sale or binding at too high and vnreasonable prices in such wise as complaint thereof be made to the King or vnto the Lord Chancellor Lord Treasurer or any of the chiefe Iustices of the one Bench or of the other Then the same Lords or two of any of them shall haue authoritie to enquire thereof as well by the othes of twelue honest and discréete persons as otherwise by due examinations by their discretions and after the same inhauncing and increasing of the prices of the said bookes and binding shal be so found by the said twelue men or otherwise by the examination of the saide Lord Chancellor Lord Treasurer and Iustices or two of them Then the same Lords or two of them at the least shall haue power to redresse such inhancing of the prices of printed bookes from time to time by their discretions and to limite the prices as well of the bookes as for the binding of them And ouer that the offender or offenders being conuict by examination of the saide Lordes or two of them or otherwise shall forfeit for euery booke by them solde whereof the price shall be enhaunced for the booke and binding thereof thrée shillings foure pence to the King and party grieued that will complaine vpon the same in manner and forme aforesaid St. 5. Ri. 2. 2. 14 It appeareth by the preamble of the statute of An̄ 5. R. 2. that the carying of gold or siluer in money vessell plate or iewells foorth of the Realme was then accounted a great mischiefe oppression and destruction of this land which the policie of this State hath before and since by seueral Statutes endeuoured to restraine As appeareth by the statutes of An̄ 9. Ed 3. Anno 5. Oppression by transporting of gold and siluer R. 2. Anno 2. H. 4. Anno 2. H. 6. Anno 17. Ed. 4. Anno 4. H. 7. and Anno 19. St. 9. Ed. 3. 1 St. 5 R. 2. 2 H. 7. Whereupon by the saide statute of An̄ 9. Ed. 3. Anno 5. R. 2. it was established That whosoeuer doth send or carrie out of the Realme of England any gold or siluer in mony bullion plate or vessell without the Kings licence St. 2. H. 4 5. sauing for his reasonable expences Anno 2. H. 4. shall forfeit the valew of the summe carried foorth And he which is vpon his passage in any shippe or vessell for to goe out of any port hauen or créeke shall immediatly confesse and declare after warning vnto him giuen by the Kings searcher what gold or siluer in coine or masse he hath with him for his expences or else that mony so concealed shall be also forfeited to the King But by the statute of Anno 2. St. 2. H. 6. 6. H. 6. Raunsoms for fines of English prisoners taken beyond the Sea and the mony that souldiers shall carrie with them for their reasonable costs be excepted so that the same be not done without the Kings licence And also by the same statute is excepted mony for things bought in Scotland to be brought to the parts adioyning And by the saide Statute of Anno 19. H. 7. it was ordained That no person shall carry or conuey nor cause to be carried out of this Realme St. 19. H. 7. 5 any bullion plate or coine of golde or siluer into Ireland aboue the summe of vj. s̄ viij d nor conuey any such bullion into any ship or boate vpon paine of forfeiture of the same and of imprisonment and fine at the Kings pleasure 15 Because there is no mine of copper mettall within this realme Oppression by transporting copper brasse c. where sufficient copper may be gotten for the vse of the King and his people and for that seuerall other mettalls be mixed therewith of which diuers vessells and instruments be made And therefore the transporting thereof beyond the sea was found by experience to be a great hinderance and oppression to the workers thereof and also to all those that should haue the vse and occupation of the same which were in effect all sorts of housekeepers wherefore for the restraint of the transportation of the same first one statute was made Anno 21. St. 21. H. 8. 10. St. 33. H. 8. 7 St. 2. E. 6. 37 H. 8. And after another Anno 33. H. 8. And lastly a third Anno 2. Ed. 6. By which two last Statutes it was enacted That no persons shall carry or conuey or ship to the intent to carry or conuey any brasse copper latten bel mettall pan mettall or shroffe mettall whether it be cléere or mixed tinne and lead onely excepted into any part beyond the sea or into any outward dominion vpon paine to forfeit the double value thereof and x. l. for euery thousand weight of the same mettall so carried or shipped to the intent to be caried to the King and him that will sue for the same in any of the Kings courts by A.B.P. or I. wherein no W.E.P. c. 16 For that a great nūber of persons occupying the trade faculty of pewterers within this Realme were decayed and oppressed in estate by reason that much ware made of tinne was brought out of other countries into this Realme and because strangers did learne the occupation of Pewterers in this Realme Oppression of pewterers and then did depart the Realme and taught it to the people of forraine Nations and for that sometime Englishmen borne would trauaile into other countries and teach the same to forrainers for the restraint wherof by a Statute made Anno 25. H. 8. it was ordained St. 25. H. 8. 9 St. 33. H. 8. 4 That no person inhabiting within this Realme shall buy or take by exchange for other wares any wares made out of this Realme of tinne or mixt with tinne as platters dishes sawcers pots basons ewers flaggons goblets saltsellers spoones or any other wares made of tin or pewter whatsoeuer it be vpon paine of forfeiture of the same wares in whose hands soeuer it may be found or taken to the vse of the King and the finders thereof and also lawfull currant mony of this Realme to the valew thereof And further that no stranger borne out of this Realme shall vse the said craft of Pewterers nor worke any manner of vessell or other ware aforesaid to be
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
ministers against the forme of the foresaid great Charter of the Forrest Therefore by the Stat. made an̄ 1. E. 3. it was ordained Punishment for vert or venison St. 1. E. 3. 8 That no man shal be taken or imprisoned for vert or venison vnlesse he be taken with the maner or else indited in forme aforesaid And then the chiefe warden of the Forrest shall let him to mainprise vntill the Eire of the Forrest without taking any thing for his deliuerance And if the said warden will not doe it there shal be a writ awarded out of the Chancerie which was in auncient time ordained for such persons so indited to let him to mainprise vntill the Eire And if the said warden after the receit of the same writ wil not deliuer to mainprise such person indited without delay then the plaintife shall haue a writ out of the Chancerie to the Sherife to attach the said warden to be before the K at a certaine day to answer wherefore he hath not repleuied him that was so taken And the Sherife calling to him the Verderers shall deliuer him which was taken to mainprise in the presence of the Verderers and shall deliuer the names of the mainpernours to the same Verderors to answer in Eire before the Iustices And if the chiefe warden shall be thereof attainted the plaintife shall haue his treble dammage awarded vnto him and the warden shal be committed to prison and ransomed at the Kings pleasure And by the Statute of an̄ 7. R. 2. it was ordained St. 7. R. 2. 4 That if any officer of the Forrest doth imprison any person or doth compell any person to make any Obligation or ransome vnto him against the ordinance aforesaid and is thereof attainted hee shall pay to the partie grieued his double dammages and make fine to the King 9 Whereas the before rehearsed stat of West 1. doth begin with those prisoners which before were Outlawed St. 3. E. 1. 15 c. yet there be some cases wherein such as be outlawed may be let to mainprise as where in an appeal of robberie or other felonie being not for the death of a man the defendant doth come in by Capias vtlagatum In what cases he that is outlawed may be let to mainprise and plead misnaming of himselfe 5. H. 7. 16. and hath a Scire facias against the appellant In this case he shal be let to baile And the same law is if he which is outlawed for felonie be taken and brought to the barre 19. H. 6. 2 and alleageth error in the Record the Court of fauour wil suffer him to find mainprise and to go and séeke to purchase his writ of Error Mainprise during the Prouers life 10 And the foresaid stat of West 1. saith further St. 3. E. 1. 15 that they which be appelled by Prouers shal not be let to mainprise so long as the Prouers doe liue if they be not of good fame yet in some cases he that is appealed by a prouer shal be let to mainprise during the Prouers life as where the Approuer doth waiue his appeale and that the defendant is not appealed by another approuer 25. Ed. 3. 42 hee shal be let to mainprise for if he bée appealed by another approuer hée shall not be let to mainprise And if the Appellée doe vanquish one Approuer in battell yet if he be appelled by another Approuer he shall not be let to mainprise St. 3. E. 1. 15 11 Whereas by the words of the foresaid Statute of West 1. such as be indited of Larcenie by Enquests taken before Sherifs or bailifes by their office shal be let at libertie vpon sufficient suretie Registrum de manucaptione Yet it appeareth by the Register that they shall not be let to mainprise if they be not also of good fame Mainprise vpon good name But if they be of good fame they are to be let to mainprise notwithstanding they be not indited before Sherifes or Bailifes but before any other Iustice that hath authoritie to heare and determine felonie and that aswell the principals as the accessories for the said Stat. of West 1. doth no more restraine the principals than the accessories in those cases where the same statute doth not prohibit to let to mainprise As if a man be indited of Burglarie as principall The principall in Burglarie or robbery mainpernable yet he may be let to mainprise 29. Ass p. 44 Registrum And the principall in an appeale of Robberie may be let to mainprise And in the Register there is a writ de Manucaptione graunted in that case 12 Though it doth not appeare by any words of the foresaid stat of West 1. that it doth prohibit the bailement of those which be attainted by verdict yet it is to be intended that the same Stat. doth as well prohibit the bailement of those which be attainted by verdict as it doth of thē who be attainted by Outlawrie 15. H. 7. 9. for séeing before the Statute of 18. El. 6. if a clerke conuict had beene deliuered to the Ordinarie he was not mainpernable which is a stronger case than a man attainted by verdict Therefore it is cleare No bailement of a prisoner attainted that a man attainted is not mainpernable for if a prisoner after that he hath pleaded not guilty be attainted by verdict that he killed a man in his owne defence or by misfortune yet he shall not be let to mainprise for it is in the Kings pleasure whether hée will grant him pardon or not 25. Ed. 3. 42 Fi. Cor. 354 297. But in that case the Iustices commanded the Sherife to put no yrons vpon the same prisoner and to shew him as much fauour as he could And the Iu. are to certifie the King of the said verdict who at his pleasure may write to the Sherife to baile the same prisoner No bailement of a prisoner conuicted And if a man that is arraigned of homicide doth plead not guiltie and is found guilty doth pray his Clergie 2. El. Dyer 179. and is repried without iudgement he is not baileable for hée is more than vehemently suspected béeing conuicted of felonie St. 3. H. 7. 3. 13 Whereas by the stat of an̄ 3. H. 7. it was enacted that no prisoner arrested for felony should be let to baile or mainprise by any one Iu. of peace but by the whole Iustices or at the least by two of them whereof one to be of the Quorum Since the making of which statute one Iustice of peace in the name of himselfe and one other of the Iustices his companion not making the said Iustice partie nor priuie vnto the case wherefore the prisoner should be bailed hath oft times by sinister labour and meanes set at large the greatest and notablest offendors such as be not repleuisable by the lawes of this Realme and yet the rather to
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
a Lords freeholder to plead That those tenants of the plaintifes which departed from their tenancies were the fréeholders and the fréehold tenants of the plaintifes and not his tenants at will For if it be so the plaintife shall recouer nothing against the defendant because hee hath other sufficient remedie to recouer the seruices of his fréeholders or the land in stead of thē And so it is to plead that the tenants which departed 21. H. 6. 31. were tenants for terme of yeares 6 In the cases aforesaid he that is wronged in his owne person his seruants or tenants by the menace of another whereby hée sustaineth losse shall haue his action of Trespasse against the offendor for the said menace and the hurt which he receiueth thereby and the king also shall haue a fine of the offendor for that the menace was of life and member and suggested to bee done vi armis and so tended to the breach of the peace But if it bée such a menace as doth not tend to the breach of the peace Menace which is iustifyable then the law is otherwise for then the partie menaced shall neither haue an action of Trespasse or other remedie against the menacer neither shall the king haue a fine of him As if a man dye seised of certaine lands and a stranger will abate 22. H. 6. 48 21. H. 6. 26. 9. H. 7. 7. and then the heire of him who dyed seised will enter vpon the stranger and menace and threaten him That if he will not depart from the possession of the same land that then hée shall repent it as the law will allow this is menace iustifiable for that he hath said no more than the law will allow him to performe And in like sort if A. be disseised of his fréehold eiected out of his terme of yeares Li. Intr. 555 dispossessed of his goods beaten assaulted or euill intreated by B. if in this case A. will say vnto B. That he will not endure those wrongs nor put them vp at his hands but will prosecute suit according to the law of the Realme in the sharpest maner that he can for the redresse of those iniuries and for the due punishment of B. this is menace iustifiable and nothing tending to the breach of the peace for A. hath said nothing but that the law will permit him to doe And in these cases the menacer doth yeeld to make the law iudge of his wrongs and that also in peaceable manner but in the former cases the menacer doth threaten to be the reuenger of his owne iniuries and so to be his owne iudge and that also in a forcible and vnlawfull sort And so it is if one man owe money to another and at the time assigned doth not pay if the creditor do say to the debtor that he will sue him according to the course of law 16. E. 4. 7. and imprison him for his debt this is menace iustifiable for the law doth allow him to doe it 7 As menace in words is accounted in many cases to be a meane of the breach of the peace and so punishable by the lawes of the realme so menace by deeds by behauiour gesture wearing of armour or vnusuall and extraordinarie number of seruants or attendants is accounted to be in affraie and feare of the people a meane of the breach of the peace and so punishable for the law doth intend that he which in a peaceable time doth ride or goe armed without sufficient warrant or authoritie so to doe doth meane to breake the peace and to doe some outrage seeing she is able and wil be alwaies ready to defend euery member of the common weale from taking or receiuing of force or violence from others if himselfe doe not giue cause to the contrarie Whereupon by a Statute made at Northhampton St. 2. E. 3. 3. anno 2. Ed. 3. it was enacted That no man great nor smal of what condition soeuer he be except the kings seruants in his presence his ministers in executing of the kings precepts or of their office and such as be in their companie assisting them and also vpon a Crie made for armes to keepe the peace and the same in such places where such acts happen be so hardie to come before the kings Iustices or other the kings ministers in doing their offices with force and armes nor bring no force in affraie of the peace nor to goe nor ride armed by day nor by night in faires markets Menace by going or riding armed nor in the presence of the Iustices or other ministers nor in no part elsewhere vpon paine to forfeit their armour to the king their bodies to prison at the kings pleasure And that the kings Iustices in their presence Sherifes and other ministers in their bailiwicks Lords of franchises their bailifs in the same mayors bailifs of cities boroughs within the same cities boroughs borough-holders wardens of the peace within their wards shal haue power to execute this act And that the Iust assigned at their cōming down into the coūtrey shall haue power to inquire how such officers Lords haue executed their offices in this case to punish them whom they find haue not done that which pertained to their office St. 7. R. 2. 13 20. R. 2. 1. And after by a statute made anno 7. R. 2. it was ordained That no Lord Knight nor other little or great shall go nor ride by night or by day armed nor beare sallet or skull of yron nor other armour vpon the paine of forfeiture thereof to the king except the kings officers and ministers in doing their offices And by the same statute it was also assented that none should ride or goe with Launcegaies Launcegaies beeing an armour defensiue then vsed in affraie of the people but that the same Launcegaies should be for euer put out 8 And shortly after the same Statute of 2. Ed. 3. was put in execution Wearing of a priuie coate for a knight was attached and arraigned in the kings Bench for that hee did weare armor vnder his vpper garment in the kings palace 24. E. 3. 33. and in Westminster hall who pleaded that there was debate betwéen him and another knight who did that weeke strike him and yet did menace him and that for feare of further perill and to saue his life hee did weare the same armour But this was adiudged no plea for the court did award that hee should forfeit his armour and be committed to the marshalsey And though he desired to be let to mainprise he was not admitted thereunto vntill the kings pleasure was knowne And the other knight his aduersarie was sent for into the kings Bench and there commanded vpon paine of all that he could forfeit that hee should not meddle nor doe any thing but that which was good to his said aduersarie Labourers shall weare no weapons
Leges Aluredi cap. 7. That if any man did strike or draw a weapon of iron to strike in the Kings pallace the King might it he pleased put him to death 29 Because they which vpon the Kings commaundement do come to his councell or vpon his summons doe resort to his Parliament doe make their repaire thitherto further the wealth and peace of the Realme it hath béen therfore thought reason that during the time of the said councel Parliament they should not be depriued of that peace which they endeaour to procure to others and themselues Assault vpon one which cōmeth to the Parliament Wherefore by a Statute made Anno 11. H. 6. Stat. 11. H. 6. 11. it was ordeined That if any assault or fray be made vpon any Lord Spirituall or Temporall Knight of the Shire Citizen or Burgesse which commeth to the Parliament or to the Kings Councell by his commaundement and there being and attending then Proclamation shall be made in the most open place of the Towne where the fray was made by thrée seuerall dayes that the partie which made such affraye or assault shall yéeld himselfe in the Kings Bench within a quarter of a yeare next after the Proclamation made if it be in the Terme tyme or otherwise at the first day of the Terme following the said quarter And if he doe not he shall be attainted of the deede and pay to the party grieued his double dammages to be taxed by the discretion of the Iustices of the same bench or by the inquest if it be needfull and shall make fine and ransom at the Kings pleasure And if he come and be found guiltie by inquest by examination or otherwise of such affray or assault then he shall pay to the partie grieued his double dammages found by the inquest or to be taxed by the discretion of the said Iustices and make fine and ransom at the Kings pleasure Assaulting the seruant of a Parliament man And by the Statute made Anno 5. H. 4. it was enacted St. 5. H. 4. 6. That he shall haue the like punishment which maketh assault or fray in the Parliament tyme vpon any meniall seruant of any Knight of the Parliament Citizen Burgesse c. which doth come to the Parliament with his master The libertie of the Clergie as a conuocation And by the Statute of Anno 8. H. 6. it was prouided St. 8. H. 6. 1. That al the Clergie which be called to the conuocation by the Kings writ and all their seruants and familiars shall fully vse and enioy such libertie or defence in comming tarying and returning as the great men and Commons of the Realme haue or are wont or ought to enioy which are called to the Parliament 30 Séeing the wealth and peace of the Realme doth chiefely consist in the due execution of Iustice which cannot be ministred without méete persons and places ordeined therefore for that cause the Law hath specially prouided that those persons and places which be designed to the same Administration of Iustice shall be so guarded and protected from force and violence offered vnto them or in them that shee hath inflicted déeper and more greiuous punishments to those who shall breake or disturbe the peace in the presence of those Magistrates or in those places than to them who shall breake the peace in the Kings own pallace where he is in person abiding or in the Parliament time ordeined for the making of Laws Assaulting a Iudge or Iuror And therefore it hath bene adiudged 22. Ed. 3. 13. That if one draw his sword to strike a Iustice assigned sitting in place of iudgement and be thereof found guiltie he shall forfeite his lands and chattels and haue his right hand cut off And likewise if one in the presence of the Iustices doe strike a Iuror he shall forfeite his lands and goods haue his right hand striken off and be committed to perpetuall prison And the same Law is if one of the Kings Iustices assigned doth arrest any person which hath made a fray before him and a straunger will rescue that prisoner whereby he doth escape in this case as well the prisoner as he that made the rescous shall be disherited and be perpetually imprisoned for that the attachment of such a Iustice is the Kings owne attachment in the construction of the Law Striking in time or place of Iustice And if one doe strike an other in Westminster Hall Fitz Cor. 280. 2. 3. P. M. Dy. 188. during the time that the Kings Courts do sit hee shall forfeite to the King his lands and goods haue his right hand cut off and bee committed to perpetuall prison 4. H. 7. 2. 31 In an action of Trespas of assault and batterie the defendant pleaded Arresting by watchmen that there were diuers felonies committed in those parts where he dwelt and he being watching in his house came into the high Stréete where the plaintife was at eleuen of the clocke in the night and the defendant came vnto him and laid his hands in peaceable maner vpon him to sée his face and when he perceiued that he was a true man he left him departed which was the same assault and batterie And this was allowed to be a good iustification for by the statute of Winchester watchmen may arrest Nightwalkers and also may appose them from whence they come and what they be but they must be such watchmen as be appointed by the Towne And so euery man may arrest Nightwalkers for it is for the good of the Common wealth The same law is in an action of Trespas brought of the assault and batterie of his seruant 4. H. 7. 18. 5. H. 7. 5. 2. Ed. 4. 8. whereby he did loose his seruice 3. daies and the defendant pleaded that A. was robbed at midnight of goods to the value of xl s̄ whereupon the said A. came to the Constable and prayed him to search for suspicious persons and to apprehend and arrest them and accordingly he did search and found the same seruant walking suspiciously in the stréete in the night and therefore he would haue arrested him but the said seruant fled and would not yéeld to the arrest and the defendant by the Constables commaundement pursued and tooke him This was adiudged a good plea in barre for when a felonie is committed the Constable or any others may arrest suspitious persons and if any that is arrested will not yéeld but assault him or them that do arrest him they may iustifie the beating of him for that he doth resist the peace and iustice of the Realme when he doth forciblie striue to flie and not to be iustified by it 30. Ed. 3. 4. 29. Ass p. 63. 28. Ed. 3. 92. 6. H. 4. 7. 32 If a man be assaulted and beaten Trespas for batterie before outlawrie and then be outlawed in an action of Trespas and after doth purchase his
Charter of pardon which is allowed he may haue an action of Trespas against the offendor for the assault batterie made before the Outlawrie for the said outlawrie shall not extinguish his action nor cause that offence which before was punishable to be vnpunished And if the partie beaten should not haue his Action the iniurie done vnto him should be vnpunished for the King shall haue no remedy to recouer damages for this batterie done to the person of him that was outlawed 29. Ass p. 47 63. as he might haue had if any debt had béen owing or any goods had béen taken from the outlaw before his outlawrie And the Law doth expect that for the peace broken and the wrong done to the partie grieued the same partie shall vpon his action of Trespas brought be recompenced by the recouerie of his dammages and the king satisfied for his peace broken by a fine 11. H. 4. 65. 9. H. 6. 60. 27. Ass p. 57 33 In an action of Trespas of assault and batterie A man first indicted of batterie and after sued for the same trespas the defendant pleaded not guiltie the plaintife replied that the defendant was before that time indicted before the Iustices of Peace of the same Countie of the said assault and batterie and thereupon proces was awarded against him for the kings fine who then appeared and pleaded that the hurt which the plaintife receiued was by his owne assault and thereupon they were at issue and before the verdict the defendant appeared and confessed the Trespas and submitted himselfe to the Kings fauour and made his fine and demaunded iudgement if he should be allowed to plead not guiltie contrarie to his owne confession and this was adiudged a good Replication and an Estoppell of the said plea in barre And then the defendant pleaded that the hurt which the plaintife receiued was by his owne assault vpon which plea the plaintife demurred séeing the defendant before had pleaded that plea against the King And then he also waiued that plea and confessed the trespas whereupon a writ was awarded to inquire of dammages And so for this assault and batterie the king was first intituled to a fine by the Indictment and after the partie grieued recouered dammages by an action of Trespas 34 Imprisonment is where a man is arrested by force against his will and is restrained of his libertie What imprysonment is and put in a common Gaole or other gaole Lib. Intrac fol. 319. in a cage or in the stockes or otherwise kept in the high streete or open field if he be in restraint and cannot go at libertie when he will but is bound to become obedient to the will of the Law and is in the custodie of the Law And in all the cases aforesaid the partie so restrained is said to be a prisoner so long as he hath not his liberty fréely to go at all times when he will without baile mainprise or other restraint And therefore if one person do arrest imprison or otherwise restraine an other person of that libertie without sufficient and lawfull cause the partie grieued may haue an action of False imprisonment or an action of Trespas against him that doth so arrest An action of False imprysonment or imprison him and recouer damages against him And the King shall also haue a fine of him for that his law is contemned and his peace is broken in that one of his subiects presumeth to imprison an other without sufficient warrant of him or his law seeing imprisonment of an other by only act will or commaundement without offence of the Law is one of the kings most royall prerogatiues and only annexed to the maiestie dignitie and imperiall Crowne of this Realme For by the Statute of Magna charta it was specially ordeined Stat. 9. H. 3. 29. That no man shall be taken or imprisoned or disseised of his fréehold or liberties or frée customes or be outlawed or exiled or any other wayes destroyed neither shall any passe or fit in iudgement vpon him but by lawfull iudgement of his Péeres or by the Law of the land And by the statute of AnÌ„ 28. Ed. 3. it was enacted Stat. 28. Ed. 3. 3. That no man shall be put out of his land or tenement nor imprysoned nor disherited nor put to death without being brought in aunswere by due proces of the Law And therefore whereas the Maior and Burgesses of a towne corporate being before authorized by the Kings letters patents to make ordinances for the good gouernment of the same Towne did condiscend amongst themselues Co. Lib. 5. 64. to leuie a summe of money for the charges of a lawfull and necessarie act to be done in the same Towne and did further agrée that if any of them did refuse to pay his part of that contribution money so assessed to be paied that then he should be committed to pryson vntill he had paid it and after one of the Burgesses of the Towne which before had agréed to the same assessement ordinance Voluntarie consent no cause of imprysonment refused to pay the money which he was by the residue assigned and assessed to pay whereupon the Maior of the same Towne committed him to pryson against whom the same Burgesse brought his action of False imprisonment and recouered dammages against the same Maior for though the same Burgesse all others of the same Corporation might haue submitted himselfe to haue paid a summe of money to haue béen leuied by distresse or action of debt if he or they had not performed the same order paid his part of that contribution yet the libertie or impriâ—onment of his bodie resteth in the censure iudgement of the Law and not in his owne disposition As if B. do promise C. or be bound by Obligation vnto him that if he do not paie vnto the same C. xx li. within sixe monethes that then C. shall take and impryson him vntill he hath paid it notwithstanding B. do not pay to C. the same xx l. at the time assessed C. may not imprison B. for it though it was his owne promise agréement or bond for that B. is not iudged by his péeres or condemned by the law of the land according to the foresaid statute of Magna Charta Neither is he brought to answere by due Proces of the law according to the purport of the before specified statute of An 28. E. 3. 35 But in many cases one person may arrest ImprisonmeÌ„t by the commaundment of the King his Iustices c. imprison and restrayne an other of his libertie and no action of false imprisonment action of Trespas or other remedie will be had against him As first it is a lawfull imprisonment which is done by the absolute commaundement of the King the chiefe Soueraigne head of the common weale by his owne mouth or by the priuie Councell which speake and direct by his Authoritie or by
the absolute commaundement of the Kings Iustices Or for the forrest Or for the detestable offence of wilfull murder And the common law doth prohibit the prisoner to be mainpernable in all the foresaid cases Stat. 3. E. 1. 15. as it appeareth by the statute of WestmÌ„ 1. 36 He is lawfully imprisoned as a speciall disturber of the peace ImprisonmeÌ„t for notorious great offences who is committed to prison for any great and notorious offence viz. such as we doe call Mala per se which be hated abhorred and persecuted in all Kingdomes Prouinces Cities and well gouerned common weales As Treasons murders rapes burglaries robberies c. And it appeareth by the statute of West 1. that he is lawfully imprisoned which before was outlawed And he which is an approuer Stat. 3. E. 1. 15. And that felon which is taken with the manner And he which hath broken the Kings prison And he which is a théefe openly defamed and knowen And he which is appelled by an approuor And he which is taken for burning of a house feloniously done Or for false money Or for counterfeiting the Kings seale And he which is excommunicat taken at the Bishops request And he which is taken for a manifest offence or for Treason touching the King in which said cases the offendor shall be committed to prison and not be let to baile or mainprise St. 1. Iac. 12. And if any person shall be once conuicted that he did take vpon him by witchcraft inchantment charme Witchcraft charme sorcery or sorcerie to declare in what place any treasure of gold or siluer might be had or where things lost or stollen should be found or to the intent to prouoke any person to vnlawfull loue or whereby any cattell or goods of any person shall be distroyed wasted or impaired or to hurt or distroy any person in his or her body S. Felony by Statute although the same be not effected Then he shall suffer imprisonment one whole yeare without baile or mainprise and shall stand vpon the Pillorie c. for he that declareth the things aforesaid by any of the meanes aforesaid receiueth his knowledge therein and practiseth to effect the same by the inspiracion of the Deuill the professed enemie of mans peace and so committeth a great and notorious offence and worthily deserueth imprisonment 37 He is lawfully impâ—isoned who is found by verdict ImprisonmeÌ„t for offences done vi armis or by his owne confession conuicted for any offence done vi et armis and against the Kings peace for the law hath ordaâ—â—ed that all things shall be done and all sutes prosecuted betwéene one membâ—r of the common weale and an other with all tranquilitie and quietnes and he that doth any thing in perturbation of that tranquilitie breaketh the Kings peace and so shal be committed to prison as a disturber of the peace vntill he hath paied vnto the King a fine And therefore in an action of Trespas or false imprisonment if the plaintife do declare against the defendant that he did such an offence or made such a trespas vi armis contra pacem the defendant doth first and principally séeke to auoyd that to cleare him selfe of force and the breach of the peace and doth plead thereunto Quoad venire vi armis quicquid est contra pacem non est culpabilis c. Accordingly in an Assise brought against foure men 2. Ass p. 8. 12. Ass pla 33. it was found by verdict that one of them came with force and armes and all foure were committed to prison because in Trespas all be principals and none be accessories and yet if any of them had bin within age then he should not haue béen imprisoned 14. E. 3. 18. 16. Ass p. 7. But if a woman couert be found a disseisoresses with force she shall be committed to prison 22. ass p. 87. And if an action of Trespas of battery be brought against the husband and wife and it be found by verdict that the wife was guiltie of the battery but not the husband the wife shall be imprisoned and not the husband If he that is proued to be a disseisor in an assise be found to haue carried away any goods this is an attainder of force 11. H. 4. 17. and he shal be imprisoned without furder inquiry of the force for so it is ordayned by the statute of Anno 4. H. 4. St. 4. H. 4. 8. 17. Ass pla 14. If a man do giue councell to others to do a disseisin with force whereby they do it this shall be adiudged a disseisin in him and he shall be imprisoned In an Assise if the defendant do pleade a plea wherein an Duster is not denied which is found against him he shall be imprisoned 28. Ass p. 15 though he doth not confesse the Duster And he that confesseth an Duster 40. Ass pla 16. 19. H. 6. 8. if the Issue be found against him shal be imprisoned In an action of Trespas brought for fishing by force and armes in his seuerall fishing the defendant was found guiltie and was committed to prison In an assise of rent charge against thrée terre tenants it was found that the rent was behinde and the plaintife distrayned and one of them made rescous 39. Ass p. 4. and therefore they were all adiudged disseisors but none were imprisoned but he that made the Rescous 9. Ass p. 7. And in euery case of force where any Trespas is found vi armis false imprisonment or assise the iudgement shall be quod defend ' capiatur 22. Ass pla 87. for he shall be imprisoned for the Kings fine and when he doth pay the Kings fine he shall be deliuered 38 As one person may be imprisoned who menaceth assaulteth or beateth the person of an other or with force and armes entereth vpon his lands or tenements or violently taketh away his goods or chattels so by the statute of Anno 2. ImprisonmeÌ„t for Riots H. 5. St. 2. H. 5. 8. where thrée persons or more be attainted of great and heinous Riots they shall haue one whole yeares imprisonment at the least without being deliuered by baile or mainprise S. Riots 11. or in any other manner during the said yeare And if the Rioters be attainted of petit Riots they shall haue imprisonment as the King and his Councell shall thinke good And by the statute made Anno 1. M. it was enacted St. 1. M. 12. S. Riots 36. that if any persons aboue the number of two and vnder the number of twelue being assembled together shall intende practise or put in vre with force of armes vnlawfully to murder any of the kings subiects or to breake downe the pales hedges ditches walls or other inclosure of any parke or other ground inclosed or the bancke of any fish pond or poâ—le to the intent the same should remaine open or to doe any
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
good iustification for him though the Iustice of peace did erre in the awarding of the proces And the same law is if the Shirife doth erre in any warrant that he doth direct to the Bailife of a Libertie Arresting an offendor deliuering him to the Constable If a man do arrest an other 10. Ed. 4. 17. who he knoweth hath committed a robberie man slaughter or other felony do deliuer him to the Constable to carrie to the gaole and the Constable will set him at libertie or doth not carrie him to the gaole or that the same person arrested be rescued out of the possession or custodie of him that did arrest him yet in neither of the foresaid cases he that was arrested shall haue an action of False imprisonment against him that did arrest him for that there was no default in him that the offendor was not imprisoned according to his desert Imprisonmēt vntill he hath made an Obligation 50 An action of False imprisonment was brought for imprysoning the plaintife vntill he had made an Obligation of xl 2. Ed. 4. 19. pounds to the defendant and others vnknowen by duresse and this was adiudged maintenable for if the plaintife did not know their names he could not expresse their names for the Obligation is not the effect of this suit but the imprisonment and he shall not recouer dammages for the Obligation but for the imprisonment for that he is not yet damnified by the Obligation because when that is sued he may plead that it was made by duresse of imprysonment and so auoid it But if the action of False imprisonment be brought of an imprisonment vntil he had made a fine he shall recouer dammages for both for he is presently grieued by the fine and so is he not by the Obligation 51 If a master do imprison a man in a house 22. Ed. 4. 45. and deliuer the key of the doore of that house to his seruant The seruant not chargeable for the masters offence the partie imprysoned cannot haue an action of False imprysonment against the said seruant for the kéeping of the key But if the seruant that hath the key do know that the same partie were wrongfully imprysoned then he ought to let him go at libertie for the seruant is bound to obey his masters commaundement but in those things that be lawfull onely And if the seruant which kept the key did not know that the same partie was imprysoned in that house then vpon his plea of not guiltie he shall be excused in an action of False imprisonment brought against him by the partie imprisoned Imprisonmēt by force of a Iustices 52 If a writ of Natiuo habendo or a Iusticies be directed to the Shirif 2. H. 4. 24. he cannot iustify the impris of any man by force therof for they be but commissions to hold plea. And the bodie of a man shall not be arrested or taken but by proces awarded out of a court of record and by those Commissions the Shirises court is not made a court of record 9. Ed. 4. 30. 53 In an action of False imprisonment A warrant vpon a Supplicauit it is a good iustification for the defendant to plead that a Supplicauit came to the Shirife to apprehend the plaintife who made his warrant to the defendant to take him which he did accordingly And yet the Shirife can not giue his authority to an other to take suerty of him 5. H. 7. 6. 54 A Iustice of peace can not direct a warrant to apprehend him who hath broken the peace for he is to be punished by inditement Arresting him who would break the peace at the Kings suit or by action of Trespas of batterie at the partie grieued his suit But he may direct his warrant to apprehend him who he doth doubt meaneth to breake the peace in time to come and to bring him before himselfe or some other Iustice or else to commit him to prison for one Iustice of peace alone may doe his endeuor to preserue the peace before it be broken but being once broken it must be punished by inditement in the presence of diuers Iustices of peace or by action at the common Law Sta. 5. El. 4. 55 If any seruant woorkeman or laborer Imp. of a seruant for assaulting of his master shall wilfully or maliciously make any assault or affray vpon his master mistresse or dame or vpon any other that shall at that time haue the charge or ouersight of him or of the worke wherein he is appoynted or hired to worke and beeing thereof conuicted before any two of the Iustices of peace Maior or head officer of a towne corporat where the offence is committed or before either of the Lords Presidents of the North or Wales by the confession of the said seruant workman or laborer or by the witnesse and oath of two honest men Then euery such offendor shall suffer imprisonment by the space of one whole yeare or lesse by the discretion of two Iustices of peace if it be without a towne corporat if it be within a towne corporat then by the discretion of the Maior or head officer of the same towne corporat with two others of the discréetest persons of the same corporation at the least And if the offence shall require further punishment then to receiue such other open punishment so as it extende neyther to life or limme as the Iustices of peace in open Sessions or as the more part of them or the said maior or head officers or vj. or iiij at the least of the discréete persons of the same corporation before whom the offence shall be examined shall thinke conuenient for the qualitie of the said offence so committed 56 By which foresaid cases and many more Where imprisonment is lawfull and where not it appeareth that imprisonment is lawfull and sufficiently authorized by the Common Lawes and Statutes of this Realme in diuers respectes and for many crimes and there is by it no breach of the peace nor offence to the Law when it is inflicted by the warrant of the law for it aduaunceth as much the justice and peace of the Realme to haue offendors punished as to haue the innocent protected But the imprisonment which tendeth to the breach of the peace and the offence of the law is when one person or more vpon his or their owne authoritie eyther in reuenge of some supposed wrong receiued or in hope of a priuat gaine expected or for some other cause will of his or their owne authority imprison or arrest an other for the redresse whereof the party grieued shall haue an action of false imprisonment or an action of trespas recouer his damages And the same offendor which before did wrongfully imprison an other shall then vpon his conuiction by verdict or his owne confession be himselfe lawfully imprisoned vntill he hath paid to the king a
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
to the plaintife was of the plaintifes owne assault and in defence of the defendant Iustifiing in his owne defence And likewise it is a good plea in barre in an appeall of maihem for the defendant to plead the plaintifs release made vnto him after the supposed offence done of all actions personals or of all actions The plaintifes release or of all appeales or of all demaunds for in this case the plaintife is but to recouer dammages 7. H. 4. 30. 66 If an appeal of maihem be brought against diuers Execusion in appeal of maihem one of them doth appeare in court and confesse the maihem and is committed to the Marshalsea and the plaintife hath iudgement against him he can not sue against the residue vnlesse he will suffer him that hath confessed the maihem to goe at liberty for if he hath iudgement and the body of him who confessed the maihem to remaine in prison that shall be an execution for this whole maihem 67 The Sages and Iudges of the land in former ages did hold it for law An action of Trespas after an appeal of maihem that if one doe assault Fitz. Coron̄ 110. 22. Ass p. 82 beate and maihem an other and the partie maihemed doth bring an appeall of maihem against the offendor and recouer dammages against him yet after he may haue an action of Trespas of assault and battery against the same offendor and recouer dammages for his beating and the recouerie of dammages in the appeal of maihem shal be no plea in barre against the plaintife for the appeal doth only medle with the maiheming not with the beating But if the plaintife do bring an appeal of maihem in the Kings bench 43. Ass p. 39 and after apparance be nonsuit in the same and then doe bring an action of Trespas of assault and batterie for the same fact Then the defendant may plead the same appeal and nonsuit in barre against the plaintife and it is a good plea. 41. Ass p. 16 Co. Lib. 4. 43. But of late yeares viz. An̄ 31. Eliz. it was adiudged that in this and all cases when the plaintife for one wrong and iniurie is but to recouer dammages he shall not be for that cause satisfied twice for one offence And in these two actions of appeal of maihem and trespas the plaintife shall onely recouer dammages And therefore it was adiudged a good plea in barre in an appeal of maihem to plead that the plaintife had before brought an action of Trespas against the defendant of assault battery wounding and had recouered dammages therein and to auerre that the same assault batterie and wounding and this maiheming were all one offence 68 As the law hath prouided remedies to punish those who by menace Restraint of affraies by Iustices of peace assault battery imprisonment or maiheming do breake the peace So hath it alwaies had a vigilant eie by anticipation to preuent many others that would breake the peace by any of the meanes aforesaid and therefore hath from age to age appointed méet magistrates and watchmen to whose charge specially as selected Sentinels she did commit the preseruation of the peace who in times past before the raigne of King Edward the third were called Conseruators of the peace Stat. 1. E. 3. 26. and sithence they haue béen termed Iustices of peace because they be Iudges of record or otherwise they be named Commissioners of the peace because they haue and deriue their authority by the Kings Commission who him selfe being the chiefe and generall Conseruator and Preseruer of the peace throughout all his Dominions doth by his seuerall Commissions commit some particles of his authoritie touching the continuance of the peace and maintenance of certaine of his Lawes to some chiefe and select men in all the parts of the Realme whom he taketh to be the most méete men for the same in respect of their integritie wisdome learning courage and liuelyhood The forme of so much of which Commission as toucheth the Peace and good Abearing is this Iacobus c. praedilecto fideli Conciliario nostro Thomae domino Elsmere domino Cancellario nec non praedilectis A.B.C.D.E.F.G. H.I.L.M.N.O.P. c. The Commission of the Peace Sciatis quod assignauimus vos coniunctim diuisim quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro buck conseruand ' ac ad omnia ordinationes Statuta pro bono pacis nostrae ac pro conseruatione eiusdem pro quieto regimine gubernatione populi nostri aedita in omnibus singulis suis articulis in dicto comitatu nostro tam infra libertates quam extra iuxta vim formam effectum eorundem custodiend ' custo dire faciendum Et ad omnes contra formam ordinationū vel Statutorum illorum aut eorum alicuius in comitatu praedicto delinquentes castigandū puniendum prout secundum sormam ordinationū Statutorū illorum fuerit faciendum Et ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorū suarum minas fecerint ad sufficientē securitatem de pace vel bono gestu suo erga nos populum nostrū inueniendam coram vobis seu aliquo vestrum venire faciendum Et si huiusmodi securitatem inuenire recusauerint tunc eos in prisonis nostris quousque huiusmodi securitatem inuenirent saluo custodire faciendum Et ideo vobis cuilibet vestrum mandamus quod circa custodiam pacis ordinationum Statutorum omnium singulorum caeterorum praemissorum diligenter intendatis Et ad certos dies loca quae vos vel aliqui duo vel plures vestrū vt praedict ' est ad hoc prouideritis super praemissis faciatis inquisitiones premissa omnia singula audiatis terminetis ac ea faciatis expleatis in forma praedicta factur̄ in de quod ad Iusticiam pertinet secundū legem consuetudinem Regni nr̄i Angliae saluis nobis amerciamentis alijs ad nos inde spectantibus 69 And though there be many other offences mentioned in the said commission which the Iustices of peace are by force of the said Commission to enquire of heare and determine and to punish the offendors therin according to the lawes and Statutes of the Realme Yet as it appeareth by the words of the said commission the same hath his chiefe care and respect of the peace to the preseruation thereof And to the intent that the said Iustices or commissioners should the better remember and respect their charge and dutie they are called Iustices or commissioners of the peace and not commissioners of justice of conscience or equitie c. And so their names together with their offices and duties be in a sort written in their foreheads And the restraining or punishment of all the other offences mencioned in the said
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
of Iust nothing was attempted but the reformation of the mans conditions and to haue the peace and good behauiour continued The suertie of good abearing in other cases then for the peace And though this suerty of good abearing is chiefely prouided for the continuance of the peace yet by force of seuerall Statutes it is also grauntable in some other cases St. 10. E. â— 3 As if the King do graunt to any person a charter of pardon of any felony then he shall come within thrée Monthes before the Shirife and Coronors of the same Countie where the felony was done finde sixe sufficient Mainpernours for whom the said Shirife and Coronors will answere that he from thenceforth shall beare him selfe well and lawfully Sta. 1. M. 3 And if any man disturbe a Preacher in his Sermon he shall be bound to his good abearing for one yeare St. 3. Iac. 19. 5. El. 21. And he shall be bound to his good abearing for seauen yeares who doth vnlawfully hunt and steale deare or conies or take away wrongfully any haukes or haukes egges or shall vnlawfullie distroy or breake the head or damme of any pond poole moate stagne or stew whereas fish are put or shall wrongfully fish in any of them to the intent to steale or take away any of them against the will of the owner or possessor of the same not hauing lawfull authoritie so to doe And he shall be bound with two sufficient suerties in CC. Sta. 23. El. 1. l. to the good behauiour which doth absent himselfe from the Church by the space of twelue moneths c. 71 Because it appeareth by the words of the foresaid commission of peace that the said Iustices of peace shal cause al those to finde suerty of peace which doe threaten any of the Kings people to hurt them in body or to burne their houses For whom against whom the suertie of peace is to be graunted Therefore all lay persons vnder the degrée of Lords or Péers of the Realme and also Ecclesiasticall persons if they be not attendant vpon diuine seruice may be arrested to finde suerty for the peace And if the husband do threaten to kill his wife or outragiously to beate her or that she hath any notorious cause to feare that he will doe so Fitz. Nat. Bre. 80. 239. she may demaund the suertie of the peace against him and she shall haue it graunted And in like sort and for the like causes may the husband demaund suertie of the peace against his wife in which case shée her selfe shall not be bound but others shal be bound for her And a Iustice of peace vpon his owne discretion may in either of the foresaid cases grant suertie of peace And one Iustice of peace may vpon his owne discretion or at the request of an other graunt the suertie of peace against an other of his felow Iustices of peace of the same county And one Iustice of peace may demaund suertie of peace of an other of his fellow Iustices against an other man A man attainted of Treason or Felony or in a Praemunire A man attainted An Heretike A Dumb man An Enfant A Villeine or abiured or conuict of Heresie a dumbe man or an Enfant within the age of xiiij yeares may demaund ought vpon cause to haue suertie of peace And so may a Villeine haue suertie of peace against his Lord least that his Lord should maihem him the Lord may haue suertie of peace against his villein A dumbe man or an Enfant aboue the age of xiiij yeare may also be inforced to find suerties for the kéeping of the peace but then themselues are not to be bound but some others for them Or else they must be committed to prison vntill they can find suerties A Iustice of peace cannot graunt suertie of peace against a Baron of the Realme nor any other aboue the degrée of a Baron A Baron But the party who would haue the peace against him must bring him by Subpoena into the Chauncerie Fitzh Subpoena 20. there he must be bound to the peace A man that is frantike shall not haue the suertie of peace of his owne demaund A mad man because he hath not discretion to request it But a Iustice of peace vpon his own discretion may bind an other to kéepe the peace against him if he sée cause thereof Neither shall he who is a Alien borne no Denizen An Alien nor in friendship with the King the Realme haue suertie of peace graunted him 17. Ed. 4. 4. 72 If a man do threaten an other to imprison him the partie threatned shall not haue the suertie of peace against him that did so menace him Vpon what cause the suertie of peace is to be graunted for that after he is imprisoned he may haue against the other a Homine replegiando or an action of false imprisonment and recouer damages so be recompenced for his imprisonment But if one man do threaten an other to beate him the partie threatned may haue the suertie of peace against him for that beating may tend to the maiheming or killing of him which the suertie of peace might haue preuented If a man do feare that an other will kill him maihem him hurt him in bodie or burne his house or procure or cause the same to be done and will come before a Iustice of peace Fitz. Na. B. 79. take his corporall oath to that effect the Iustice of peace is to graunt him the suertie of peace against the man complained of for that may satisfie the conscience of the said Iustice that the partie doth complaine vpon méere feare and not vpon malice or vexation And though the partie against whom the peace is demaunded may séeme to the Iustice of peace to be a simple person weake féeble impotent or far vnable to incounter by force and strength with him that demaundeth the suertie of peace yet he may procure or cause the other to be slaine maihemed beaten or his house to be burned And further if the party that doth complaine and desiâ—eth the suertie of peace will sweare that he doth feare where indéed he neither doth feare nor hath cause of feare yet his oath doth therein discharge the conscience and oath of the Iustice of peace And the whole fault if any be shall be iustly imputed to the complainor 73 And whereas the words of the kings Commission be Suertie of peace inioyned by word or writing That the said Iustices of peace shal cause all those to find suertie of peace which do threaten any of the kings people to hurt them in bodie or to burne their houses It is to be obserued that in some cases a Iustice of peace may by his owne word only cause suertie of peace to be found sometime he must do it by writing As if one man do in the presence hearing
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
other case the partie yet the King can in neither of the said cases releas it vntill it be forfeited for the mischiefe that may come to A. thereby though the Recognizance be taken domino Regi for that it is not a debt vnto him vntill it be forfeited But being forfeited then the King and none other may releas pardon the forfeiture And in the cases aforesaid though the Iust of peace or the party may releas the suertie of the peace Buck. The Iustices release of the peace yet the Recognizance before taken for the suertie of the peace must not be cancelled least the peace was broken before the releas made so the Recognizance was forfeited And the forme of the Iustice of peace releas of the peace is this Ego p̄fatus Paulus Risley armiger vnus Iusticiariorū dn̄i Regis nunc ad pacem in Com̄p̄dictur conseruādam assignatur qui S. T. de Preston ad securitatē pacis inueniendam mea discretione compuli eandem securitatem pacis quantū in me est in mea discretione 10. die Maij An̄ 5. Reg. Iac. c. remisi relaxaui Dat' apud Chetwood c. And the forme of the release of the party before the same Iustice that tooke the Recognizance of the peace is this Memorandum quod 10. die Iulij Anno 5. The parties release of the peace Regis Iacobi c. A. B. venit coram me Francisco Cheney Milite vno Iusticiariorum dom̄ Regis nunc ad pacem c. gratis remisit relaxauit quantum in se est praedictam securitatem pacis per ipsum versus supranominatum S. T. petitam In cuius rei testimonium ego p̄fatus F. C. c. Datur apud Chessam Bois c. And in like sort the Iustice or Iustices of peace may doe which tooke suretie for the good abearing if they sée cause 83 The peace or good abearing is broken Causes of the breach of the peace or good abearing the Recognisance taken for the kéeping of the same is forfeited by violent extreame malicious and vnlawfull menacings assaults affrayes batteries strikings or imprisonments as if a man bound to the Peace doe wrongfully and malitiously menace assault beat or imprison another or doe forcibly thrust him into a riuer well or pond whereby he is in danger of drowning or doe rauish a woman against her will or doe commit manslaughter burglarie or robberie or treason against the person of the King Br. peace 20 And if a man be bound to the peace after he doth procure another to breake the peace this is a cause of forfeiture of his recognizance taken for the surety of the peace for that the peace is broken by his meanes 18. Ed. 4. 28. And if one be bound to the peace after doe menace I. S. to his face in his presence to kill or beate him this is a breach of the peace But if I. S. be absent when he is menaced then is it no breach of the peace vnles the same partie doe according to his menace lie in waight to kill or beate I. S. for then also it is a breach of the peace 22. Ed. 4. 35. And though the suertie of the peace be not broken without fighting 2. H. 7. 2. beating imprisoning or extremity of menacing yet the suertie of good abearing may be forfeited by the extraordinary number of people 10. H. 7. 12. that the partie bound hath attending vpon him or by his wearing of harneis or other weapons more then before he hath vsually done or be méete for his degrée or estate or by vsing of rigorous or terrible words or threatenings tending or inciting to the breach of the peace or indemeaning himselfe in his behauiour company or gesture or doing of any thing which shall tend to the breach of the peace or to put the people in dread or feare 84 As the wisdome of the Realme hath ordained Iustices of peace to be preseruors of the peace and men wholy or specially deuoted assigned to that office So hath she made choice of other magistrates who with their other offices haue the conseruation of the peace annexed to their charges as a thing incident or inseperable from their other functions and goe continually lincked arme in arme with them As euery Shirife in his County euery Coroner The Shirife Constable c. conseruators of the peace high constable of any lath-rape wapentake hundred or fraunchise and euery petit Constable Borshoulder Tithingman Headborough Boroughhead Thirdborough and chiefe pledge in euery Towne Village hamlet is within his limits and the precincts of his authoritie a conseruator of the peace And so is the Steward in euery Léete and view of franck pledge the Steward of euery Court of Pipowders a conseruator of the peace and if an affray be made in their presence sitting in their Court each of them may commit the offendors to prison And they all are in dutie first to bend their care foresight to preuent the breach of the peace next to imploy both their owne valor and strength to commaund the helpe force of others to pacifie those who by word or déed are in breaking of the peace And thirdly to punish those who haue broken the peace according to the law St. 5. F. 3. 14. And therefore any of the officers aforesaid may take and arrest suspected persons which walke in the night and sléepe in the day and carrie them before a Iustice of peace to finde suerties of their good behauiour Sta. 13. E. 1. And if any be taken by watchmen in the night watch that is suspected of euill behauiour they may take him and imprison him vntill he be deliuered by the ordinarie course of law And if any doe goe or ride armed by day or night in fayers or markets or other places sauing the Kings seruants in his presence or in executing of his precepts or such as doe pursue huy and cry where offences be done any of the same officers may take their armor from them to the Kings vse and commit them to the gaole And if any assemblies Rout or rumor shall be begun St. 17. R 2. 8 the Shirifes and other the Kings officers shall take the power of the County and disperse them and shall commit the offendors to prison vntill they be duely punished according to the law And if any do threaten to kill maihem or beate an other or doe attempt or goe about to doe it then any of the said officers may arrest the offendor to come before a Iustice of peace to finde suertie for the kéeping of the peace or els the same officer may commit him to prison 1. H. 7. 7. And if either of the said officers shal perceiue any other in his presence to be in breaking of the peace eyther dy drawing of their weapons or by assaulting or striking one of an other or by assaulting
himselfe he may commaund them vpon paine of imprisonment to surcease 5. H. 7. 6. or else he may with his weapon part kéepe them asunder and call and procure others likewise so to doe And then he may carrie them before a Iustice of peace to find suertie of the peace which if they refuse to doe he may commit them to prison 3. H. 4. 9. or els the Constable may take suerties of them by Obligation to kéepe the peace And if any of the offendors doe flée into a house 13. Ed. 4. 9. the said officer may breake open the dores and arrest him and so he may doe if the offendor doe flée into another Countie for that the arrest is for the benefite of the commonweale And likewise if any of the said officers shall learne that certaine persons be fighting or quarreling in a house in such sort that they are like to breake the peace or that a man and a woman be in a house together committing addultery or fornication 7. E. 3. 10. 1. H. 7. 6. he may breake open the dores and arrest them to come before a Iustice of peace to find suertie of the peace or otherwise if he will he may commit any of the said offendors to prison And if any of the parties to an affcay haue receiued any daungerous wound then the officer must arrest the offendor and carrie him to a Iustice of peace 22. Ass p. 56 who is eyther to commit him to prison or to let him to mainprise vntill the next Gaole deliuery that it be knowen whethir the partie wounded will liue or die thereof or els the officer himselfe may commit him to prison vntill the same be knowen 38. Ed. 3. 6. for if the partie wounded doe die the offence wil be felony If the common voice and fame of the County be that C.D. hath committed a felony any of those officers that doe suspect him thereof may arrest him for it And so he may search within the limits of his authority for any persōs suspected of felony for it is a chiefe parte of the Constables dutie to preserue the peace and represse felons And if any of the officers before mentioned do arrest an offendor or any person suspected for any of the causes aforesaid who ought to be carried to the Gaole or before a Iustice of peace the same officer néede not carrie him presently to the Gaole 22. Ed. 4. 35. or before the Iustice but he may put him in the stocks or some other safe custody for a time vntill he can prouide sufficient company to assist him to conduct the same offendor to the Gaole or to the Iustice 2. Ed. 4. 9. Or if the partie arrested be so sicke diseased or wounded that he cannot be presently carried without daunger of death the officer may stay him vntill he be recouered 85 But the peace of the Realme hath béen so precious to all ages Euery able person is a Conseruator of the peace and Treasons Felonies assaults batteries and other forcible violences and offences so odious that the Lawes and Statutes of the Realme and the wisedome of our forefathers haue made and appointed besides the Magistrates and officers before mencioned all sortes of able persons in some sort and to some purposes preseruers of the peace intending that as all the members of the common weale doe taste swéet comfort and pleasant repose by the benefit of peace so they should be all partakers when néede requireth of the paines to maintaine and continue the same peace and to punish the transgressors thereof Sta. 3. E. 1. 9. And therefore by the Statute of Westm̄ 1. it is ordained That all men generally shall be ready at the commaundement and summons of the Shirifes and at the crie of the country to pursue and arrest felons when néede shall be aswell within fraunchises as without and they that will not and be thereof attainted shall make a grieuous fine to the King Sta. 3. Ed. 1. By the statute intituled Officium Coronatoris it is enacted That vpon all Homicides Burglaries men slaine or put in great daunger huy and crie shall be leuied and euery man shall follow the huy and crie and the offendors steppes if it may be and whosoeuer doth not and is thereupon conuicted shall be attached to appeare before the Iustices of Gaole deliuerie St. 5. E. 3. 14. By the Statute of Anno 5. Ed. 3. it is established That if any man suspect lewd persons then termed robertsmen wasters or drawlatches of any manslaughters felonies or robberies be it by day or night they shall incontinently be arrested by the Constable of the towne and if it be within franchise deliuered to the Bailifes of the franchise and if in guildable to the shirife and kept vntill the comming downe of the Iustices of Gaole deliuerie who shall procéede to the deliueraunce of them St. 17. R. 2. 8. By the Statute of 17. R. 2. it is defended to all the Kings people aswell Lords as others that none shall make assemblies Riots or Rumors against the peace And if any such assemblie be begun as soone as the Shirife and other Ministers may haue knowledge thereof they with the strength of the country shal disturbe such offendors and put them in prison vntill the law be executed vpon them And all Lords and other liege people of the Realme shall be attending with all their strength and power to the Shirifes and Ministers aforesaid St. 2. H. 5. 8. By the Statut of An̄ 2. H. 5. it is prouided That the Kings people being able to trauaile in the Countie where Riots assemblies or routs against the law be shal be assistant to the Iustices Commissioners Shirife or vndershirif of the same Countie when they shall be reasonably warned to ride with the said Iustices Shirife c. in aide to resist such Riots Routs and Assemblies vpon paine of imprisonment and to make fine and ransom to the King St. 15. R. 2. 2 By the Statute of 15. R. 2. it is ordeined That if the Shirife or any other of the Countie doe not attend vpon a Iust of peace to arrest such offendors as doe make forcible entries into lands or tenements he or they so offending shall be imprisoned and pay a fine to the King Sta. 1. M. 12. By the Statute of An̄ 1. M. it is established That if any person being aboue the age of xviij yeares and vnder the age of lx being able to serue and not sick lame or impotent shall be required by any Iustice of peace or any Shirife of any County where any vnlawfull assembly of xij persons or aboue shall be to do any vnlawfull act prohibited by that statute or by any Maior Bailife or other head Officer of any Citie Borough or towne corporat or by any other by the commaundement of any such Iustice Shirife Maior c. to go with him or them to suppresse the
assemble for any of the sportes before mentioned but when the taking of parte with those that did quarrell beganne And therefore they onely who made themselues parties to that quarrell shall be punished as Riotors and none other And so it is if a Iurie be charged to trie an Issue if some of them fall out and fight this is no Riot in the residue assembling to a lawfull end 22. H. 6. 37 3. H. 7. 1. 10. St. 17. R. 2. 8. St. 1. M. 12. 8 St. 3. H. 4. 17 Sta. 8. H. 6. 9. St. 3. Ed. 1. 9. And it is lawfull for the Sheriffe Vndersheriffe or Bayliffe to take the power of the Countie what number they shall thinke good to execute the Kings processe And so may any Iustice or Iustices of Peace and the Sheriffe and the Vndersheriffe take any power of the Countie to represse Riots Routes vnlawfull or Rebellious Assemblies Or to remooue such persons as by Inquisition are found to haue made forcible Entries into other mens possessions or to detaine them with force And so may a Iustice of Peace Sheriffe or Constable take of the Countie any number that they will to pursue and apprehend Traytours Murderers Robbers or other felons or such as doe breake or goe about to breake or disturbe the peace For though in the cases last specified there be three or aboue assembled together yet it is to execute the iustice of the Lawe and by that meanes to preserue peace And it is a lawfull assembly which is gathered together to runne at Tilt Iusts or Barriers by the Kings commaundement for the cause beginning and end thereof doe tend to obedience the laudable exercise of true valour and manhood and to the encouragement and enabling of the actors therein to defend the Realme and the peace thereof 7 And though by the before specified Statute of Anno 34. Edw. 3. it is ordained that Iustices of Peace shall restraine offendors Riotors and all other Barrators and pursue take chasten imprison and punish them according to their trespasses and offences to the intent that the people bee not by such Riotors troubled or indammaged nor the peace broken nor any passengers by the way disturbed or put in perill Yet by force of that Statute the Iustices of Peace could not require the helpe of the Sherife nor commaund the power of the countie to helpe to assist them St. 17. R. 2. 8. to represse the said Riotors Whereupon by the before mentioned Statute of Anno 17. R. 2. it is defended That none shall make assemblies riot or rout against the peace in any wise And if any such assembly be begun as soone as the Sherifes Disturbing of riotors and other the Kings ministers may haue knowledge thereof they with the power of the countie where such case shall happen shall disturbe such malice with all their power and shall apprehend all such offendors and put them in prison vntill due execution of the law be made of them and all Lords and other liege people of the Realme shall attend with their whole strength and power the Sherifes and ministers aforesaid 8 But because the said Statute of 17. R. 2. or any other Statute or Law before that time made doth not enable the Iustices of Peace and Sherife to record that which they shall find done in their presence against the law nor to make enquirie thereof nor to heare and determine the same nor to make certificat thereof to the King and his counsell if the truth cannot be found Nor doth assigne what Proces shall bee awarded against the offendors nor doth inflict any penaltie vpon the Iustices which shall not execute the law Therefore by the before rehearsed Statute made Anno 13. St. 13. H. 4. 7 H. 4. it was established that if any riot assemblie or rout of people against the law be made in any part of the Realme the Iustices of peace three The Iustices and sherifs shall arrest Riotors or two of them at the least and the Sherife or Vndersherife of the shire where such riot assembly or rout shall be made shall come with the power of the countie if néed bée to arrest them And the Iustices Sherife or Vndersherife shall haue power to record that which they shall find done in their presence against the law And the same trespassors and offendors shall bee conuict by the Record of the same Iustices Sherife or Vndersherife in manner and forme as is contained in the Statute of forcible entries The forme of Recording of which riot is this Buck. Recording of a riot viz. Memorandum quod primo die Martij anno regni regis Domini nostri Iacobi dei gratur c. tertio Nos Franciscus Goodwin miles Alexander Hamden miles Iusticiarij domini Regis nunc ad pacem in comitatu praedicto conseruandam necnon c. assignati Richardus Ingolsby miles adtunc vicecomes eiusdem comitatus ad querimoniam A. B. de Wadsdon in comÌ„ praedicto yeoman in proprijs personis nostris accessimus ad domum mansionalem ipsius A.B. apud Wadsdon praedictur ibidem inuenimus quosdam C. D. E.F.G. alios malefactores pacis dicti domini Regis perturbatores ignotos ad numerum octo personarum modo guerrino arraiatos viz. cum gladijs baculis arcubus sagittis riotosè illegitimè aggregatos eandem domum sic custodientur in magnam perturbationem pacis dicti domini Regis populi sui terrorem contra formam statuti in Parliamento domini Henrici nuper Regis Angliae quarti Anno Regni sui decimo tertio tento editi Et ideo nos praefati F. G. A.H. corpora pÌ„dictoruÌ„ C.D.E.F.G. ad tunc arrestauimus ac proxime Gaole dicti domini Regis in Com' pÌ„dicto duci fecimus ê‘ recordum nostrum de transgressione praedicta conuictos in praesentia nostra ibidem moraturos quousque finem dicto domino Regi ê“ transgressione sua praedicta fecerunt In cuius rei testimonium huic recordo nostro sigilla nostra apposuimus Datur apud Wadsdon praedict ' die Anno praedictis 9 By the same Statute of 13. H. 4. it is further ordained St. 13. H. 4. 7 That if it happen such Trespassors and offendors be departed before the comming of such Iustices Inquirie of a Riot by the Iustices c. and Shirife or vndershirife the same Iustices thrée or two of them shall diligently inquire within a moneth after such Riot assembly or Rout of people so made and the same shall heare and determine according to the lawes of this Realme And because the said Iustices of peace Shirife c. are by this braunch of the Statute to make inquiry of the Riot which must be done by a Iury returned by the Shirife the forme of the said Iustices precept to the Shirife to returne the said Iury is this Buck. viz. Henricus Longuile miles Willihelmus Anderous miles Iusticiarij Domini
Regis nunc ad pacem in Comitatu praedicto conseruandam A precept to the Shirife to returne a Iurie to inquire of a Riot nec non ad diuersas felonias transgressiones et alia malefacta in eodem Comitatu audiendum terminandum assignati vicecomiti Comitur praedicti salutem Ex parte dicti Domini Regis tibi praecipimus firmitèr iniungentes quod non omittas ê“pter aliquam libertatem in Balliua tua quin eam ingrediaris venire facias coram nobis apud Cauluerton in Comitatu praedicto 10. die huius mensis Ianuarij 24. ê“bos legales homines Comitatur praedicti quorum quilibet habeat terras tenementa infra dictuÌ„ Comitatum liberi tenementi per chartam ad valoreÌ„ viginti solidorum aut per Copiam Rotulorum curie ad valorem 26. s. 8. d. aut de vtroque vltra omnes reprisas ad inquirendum pro dicto dnÌ„o Rege de quodam Riotto apud C. in comitatu pÌ„dicto nuper commisso vt dicitur qd'suê‘ quemlibet IuratoruÌ„pÌ„dictoruÌ„ tunc returnes in exitibus xx s. Et hoc nullatenus omittas sub pena xx.li. quam noueris te incursurum si in executione pÌ„missorum tepidus seu remissus fueris Et habeas ibi hoc praeceptum Testibus nobis pÌ„fatis H.L. W. A. quarto die Martij AnÌ„ regni dnÌ„i nostrÌ„ Regis Iacobi dei gratia c. tertio And when the Shirife hath returned his precept at a day and place then two Iustices of peace at the least without the Shirife who is not to sit vpon the Inquisition are to make enquiry by the same Iury returned the forme of which Inquisition is this Buck. Inquisitio pro Domino Rege capta apud Wynslowe in Comitatu praedicto primo die Octobris Anno Regni dicti domini nostri Regis Iacobi c. quinto coram Roberto Dormer milite Anthonio Tiringham milite adtunc Iusticiarijs dicti Domini Regis ad pacem in Comitatu praedicto conseruandam necnon ad diuersas felonias c. assignatis super sacramentum A. B. C. D. E. F. G. c. The forme of an inquisition of a Riot Qui dicunt super sacramentuÌ„ suum quod H. I. K. L. M. N. de Addington in Comitatu praedicto husbandmen c. simul cum alijs malefactoribus pacis dicti Domini Regis perturbatoribus ignotis ad numerum decem personaruÌ„ vi armis modo guerrino arraiati viz. cum gladijs Bacculis Arcubus Sagittis vicesimo die Septembris Anno quinto supradicto inter horas septimam vndecimam ante meridiem eiusdem diei domum mansionalem cuiusdam S. T. de Wynslowe praedictur fregâ—runt intrauerunt in ipsum S. T. adtunc ibidem insultum fecerunt ipsum verberauerunt vulnerauerunt maletractauerunt ita qd ' de vita cius desperabatur in magnam perturbationem pacis dicti domini Regis populi sui terrorem ac contra formam statuti de Riotis Routis illicitis congregationibus in parliamento domini Henrici nuper Regis Angliae quarti Anno regni sui decimo tertio aediti St. 13. H. 4. 7 10 By the foresaid Statute of 13. H. 4. it is moreouer established that if the truth cannot be found in maner aforesaid then within a Moneth next after the same Iustices thrée or two of them and the said Shirife Certifying a Riot or Vndershirife shall certifie before the King and his Councell of the whole fact and the circumstances thereof which certificat shall be of the same force that a presentment by twelue men is Vpon which certificat the said trespassors and offendors shall be put to aunswere and they which shall be found guilty shall be punished by the discretion of the King and his Councell And if the same trespassors and offendors do trauerse the matter so certified Trauerse of a Certificat the same certificat and trauerse shall be sent into the Kings Bench there to be tried and determined according to the order of the Law St. 13. H. 4. 7 11 The same Statute of 13. H. 4. hath also prouided that if the said trespassors and offendors do not come before the King and his Councell Proces against offendors or into the Kings Bench at the first precept then an other precept shall be deliuered to the Shirife of the Shire to take the said trespassors and offendors if they may be found and to bring them at a certaine day before the King and his Councell or into the Kings Bench And if they cannot be found the Shirife or Vndershirife shall make proclamation in his full Countie next insuing the said second precept that they shall appeare before the King and his Councell or in the Kings Bench or in the Chauncerie in the time of vacation within thrée wéekes then next following And if the offendors do not appeare as is aforesaid and the proclamation be made and returned they shall be attainted and conuicted of the Riot Assemblie and Rout aforesaid St. 13. H. 4. 7 12 By the said Statute of 13. H. 4. it was lastly enacted The forfeiture of the Iustices which do not inquire of Riots that the Iustices of peace which dwell néerest in euery County where such Riot of people shall be together with the Shirife or Vndershirife of the same Coâ—ntie And also the Iustices of assise for the time that they shall be in their Sessions in case any such Riot assemblie or Rout be made in their presence shall doe execution of this Statute euery one vpon paine of C. li. to be paied to the King as often as they shall be found in default of execution of the same Statute 13 Because it was not prouided by the foresaid Statute of 13. H. 4. A commission to inquire of the Iustices c. default that the partie grieued should haue any other remedie if default should be in the said Iustices Shirife or Vndershirife where such Riot assemblie or rout should be made nor at whose costes the same riot should be repressed neither was it limitted what punishment the parties attainted of such Riots should suffer St. 2. H. 5. 8. Therefore by an other Statute made Anno 2. H. 5. it was established That if default be found in the said two Iustices of peace or Iustices of Assise and the Shirife or Vndershirife of the Countie where such Riot assemblie or rout shall be made touching the execution that they ought to make by vertue of the said statute of 13. H. 4. and whereof the said Statute maketh mention Then at the instance of the partie grieued the kings commission shall be awarded vnder the great Seale to inquire aswell of the truth of the case and of the originall matter for the partie complaynant as of the default or defaults of the said Iustices Shirife or Vndershirife in this behalfe supposed to be directed to sufficient and indifferent
persons at the nomination and by the aduise of the Chauncellor of England And the said Commissioners incontinently shall send into the Chauncery the Enquests and matters before them in this behalfe taken and found Vpon the Cōmission the coronors shal returne the Iury 14 The Coroners of the same Countie for the time being St. 2. H. 5. 8. in which Countie such Riot Assemblie or Rout shall be made shall make the panell vpon the said commission retornable for the time that the Shirife so supposed in default shal remain in his office which Coroners shal return no persons but only such which haue lands c. to the value of x. l. by the yere at the least And also the same coroners shal return vpon euery of the said persons impannelled at the first day when issues be to be lost xx What issues shal be returned vpon the Iurors s. at the least at the second day xl s. at the least at the third day C. s. at the least at euery day after the double at the least which issues so returned because of non-appearance of such persons impanneled shall be forfait to the King and leuiable to his vse And if default be found in the said coronors touching the returne of such persons to be impanneled or touching the returne of such issues as afore is said euery of them shall pay to the Kings vse forty pounds Where the shirife shal return the Iury and not the coronors 15 And if the Shirife so reputed in default be discharged of his office St. 2. H. 5. 8. at the time that such commission shall goe out of the Chauncerie then the new Shirife of the same County his successor mediate or immediate and not the coronors shall make the pannell vpon this commission returnable in manner and forme as the said coronors should doe in time when the Shirife so reputed in default stood in his office And the same Shirife shall incurre like paine of xl li. to the King if any default in him be found touching the returne of other persons by him impannelled which haue not lands tenements or rents to the value of x. li by the yeare or of returning such issues as the said coronors be aboue charged to returne as the said coronors be to lose to the King in this behalfe A writ directed to enquire of a Riot 16 The Chauncellor of England as soone as he may haue knowledge St. 2. H. 5. 8. of such Riot assemblie or Rout shall cause to be sent the Kings writ to the Iustices of peace and to the Shirife or vndershirife of the County where they be so made that they shall put the foresaid Statute of 13. H. 4. in execution vpon the paine contained in the same And though such writ come not to the said Iustices Shirife or vndershirife they shall not be excused of the paine of 100. pounds aforesaid if they make not execution of the said Statute Riots shal be inquired of at the Kings costs 17 The Iustices and other officers aforesaid shall doe their offices at the Kings costs in going tarrying St. 2. H. 5. 8. and returning in dooing their said offices by payment thereof to be made by the Shirife of the same County for the time being by Indentures betwéene him and the said Iustices and other officers aforesaid to be made of the payment aforesaid whereof the said Shirife vpon his accompt in the Exchequer shall haue due allowaunce St. 2. H. 5. 8. 18 Such Riotors attainted of great and haynous Riots The punishment of Riotors shall haue one whole yeares imprisonment at the least without being let out of prison by baile mainprise or in any other manner during the yeare aforesaid and the Riotors attainted of petit Riots shall haue imprisonment as the King and his Councell shall thinke good St. 2. H. 5. 8. 19 The Kings liege people being able to trauaile in the Countie where such Riots assemblies or routs shall be made shal be assistant to the Iustices Each man shall helpe to represse Riots commissioners Shirife or vndershirife of the same County when they shal be reasonably required to ride with the said Iustices Shirife or vndershirife in aide to resist such Riots Routs and assemblies vpon paine of imprisonment and to make fine and ransom to the King St. 2. H. 5. 8. 20 The Bailifes of franchises Bailifes of Franchises shall impannell sufficient people as before vpon paine to loose xl li to the King in case that such sufficient persons may be found within the said franchises Corporat towns hauing Iustices And like ordinances and paines shall hold place and take effect in Cities Boroughs other places and townes enfranchised which haue Iustices of peace within them 21 Forasmuch as in the before rehearsed Statute of 13. H. 4. it is not expressed of what sufficiency the Iurors impannelled by the Shirife to inquire of Riots should be Nor what issues they should lose if they appeare not Nor any mention is made of any punishment the maintenors and embraceors of the Iurors that so shall be impannelled should haue for their misdemeanor A Iury to enquire of Riots if any should be St. 19. H. 7. 13. Therefore by a Statute made Ann̄ 19. H. 7. it was enacted that if any Riot Rout or vnlawfull assemblie be committed within this realme the Shirife hauing a precept directed to him shall returne xxiiij persons dwelling within the Shire where such Riot c. shall be so committed whereof euery of them shal haue lands and Tenements within the same shire to the yearely value of xx s. of Charter land or fréehold or xxvj s. viij d. of copihold or of both aboue all charges for to inquire of the said Riot Rout or vnlawfull assemblie And he shall returne vpon euery person so by him impanelled in issues at the first day xx s. at the second xl s̄ if that they appeare not and be sworne to enquire of the premisses at the first day And if default be found in the Shirife or vndershirife for returning of other persons being not of the same sufficiency or for not returning issues in forme aforesaid then the said Shirife shall forfeit to the King for either twenty pounds St. 19. H. 7. 13. 22 If the said Riot Rout or vnlawful assemblie be not found by the said Iury by reason of any maintenance or embracery of the Iurors Maintenance where by a Riot is not found then the same Iustices and the Shirife or vndershirife beside such certificat that they be bound to make according to the foresaid Statute of 13. H. 4. shall in the same certificat certifie the names of the mainteinors and embraceors in that behalfe if any be with their misdemeanors that they know vpon paine of euery one of the said Iustices and Shirife or vndershirife to forfait xx li. if they haue no reasonable excuse for not certifying of
the same which certificat so made shall be of like force and effect in the law as if the matter contained in the same were duly found by the verdit of xij men And euery person duly proued to be a mainteinor or embraceor of the same shall forfeite to the King xx l. and shall be committed toward there to remaine by the discretion of the Iustices What one Iustice of peace may doe alone in a Riot 23 One Iustice of peace alone can neither make inquiry of a Riot Rout 7. Ed. 4. 18. or vnlawfull assemblie when it is done nor assesse any fine nor award any proces for it nor otherwise meddle with it in the nature of a Riot or Rout but only as a trespas against the peace or vpon the statute of Northampton or the Statut of 34. Ed. 3. or vpon the Stat. of forcible entries for the wordes of the foresaid Statute of 13. H. 4. be That if such trespassors or offendors be departed before the comming of the said Iustices Shirife or c. the same Iustices thrée or two of them shall diligently enquire c. So that there must be two of them at the least to make such inquirie 14. H. 7. 9. But if one Iustice of peace doe heare of any Riot Rout or vnlawfull assembly he alone with his seruants may goe to the place where the assemblie is reported to be made and if he finde any riotously gathered together he may arrest them to finde suerties of their good behauiour according to the Statute of 34. Ed. 3. Kel fo 41. he may take their weapons from them and retaine them vntill their hot bloud be cooled And if they refuse to finde suerties of their good behauiour he may commit them to prison But this must be done presently vpon the act doing for if there be any meane time he hath then no authority to commit them to prison And if he come to the place whither he doth vnderstand that some persons will repaire to commit some Riot Rout or violent act against the peace and the same persons be not yet come thither he may leaue his seruants there to restraine them from committing their intended Riots or other offences or else to arrest them to finde suerties of their good behauiour if they doe offer to commit any Riot or to breake the peacce And so may he also doe if he shall be sicke and heare of any Riot c. intended to be done he may send his seruants to represse it or to bring the offendors before him or some other Iustice of peace to finde suerties to kéepe the peace or else to commit them to the Gaole So that one Iustice of peace alone may by the warrant of the said Statute of 34. Ed. 3. doe much in preuention of a Riot c. before it be done for the stayiâ—â— of it whilest it is in dooing but nothing to punish it as a Riot when it is done for that statute of 34. Ed. 3. was made for the common profit of the Realm spéedily to interrupt and preuent present mischiefes to disperse malefactors Barretors and other Riotors in their very first méeting and encounter and so farre as may be to parte and cut off the quarrell before it grow to any head or extremity which peraduenture would not be easily pacified if one Iustice should doe nothing vntill some other of his fellowes came to assist him therein And a Iustice of peace may by word only without warrant in writing commaund his owne seruants or any of them to apprehend those that are about to commit a Riot in his presence And they may iustifie the taking of them though those Riotors be gone or fled away out of the presence of the same Iustice before his said seruants can lay hold on them 24 Although this Statute of 13. H. 4. doth not make that mention which the Statute of 8. H. 6. of Forcible entries doth touching complaint to be made to the Iustices of peace of a Riot Rout or vnlawfull assemblie but doth hinde the next Iustices of peace to doe execution of this Statute euery one vpon pain of C.li. yet the Sages of the Realme and the wisedom of the interpreters of the law The Iustices must haue notice of the Riot haue thought it reason 4. El. Dy. 210. that notice should be giuen vnto the said next Iustices thereof before they should incurre the said penaltie of C.li. vnles it be some great notorious and very perilous Riot which by common intendment euery person in those parts may take knowledge of for as the said Statute of 13. H. 4. doth relate to the Statute of 8. H. 6. touching the conuiction of offendors by the record of the Iustices So it is like that the meaning of the makers thereof was it should doe in giuing notice or making of complaint of the wrong receiued 25 If the Iustices doe assemble themselues the Shirife The parties agréement no discharge of the inquisition and the Iurie to make inquirie of a Riot within a moneth according to the Statute and after at the parties request they do not inquire of it but doe dismisse the Iurie for that the parties haue agréed betwéene themselues Yet the Iustices shall pay a fine to the King although none doe giue euidence for the King vpon that Riot for they ought to take and charge an enquest and to make enquiry of that Riot whereof they were enformed or of all Riots séeing it may be that the Iurors themselues haue knowledge of the Riot And moreouer they must make proclamation if any will enforme the Kings Iustices of any Riots Routs c. And the said Statute of 13. H. 4. which giueth authoritie to the Iustices and Shirife c. to inquire of the Riot and to heare and determine it according to the law was ordained to punish Riotors for breaking of the Kings peace and thereby to make them an example to others and also to intitle the King to a fine And therefore the law will not permit that the satisfaction of the parties grieued should depriue the King of his fine or ease the offendors of their due and deserued punishment and also yéeld incouragement to others vpon hope of agréement to put in practise the like Riots or other outrages St. 13. H. 4. 7 26 And whereas the said Statute of 13. H. 4. hath ordained that if any Riot or c. against the law shall be made the Iustices of peace the Shirife or vndershirife shall come with the power of the Countie if néede be to arrest them That power of the County is expressed before by the Statute of 17. What power of the County the Iustices shall vse to represse Riots R. 2. viz. Al Lords and other liege people of the Realme as Knights Esquires gentlemen yeomen laborers seruants apprentises villaines and all others of the age of 15. yeares or aboue which be not of the Clergie decrepite or
women whereof the said Iustices and Shirife may take so many to assist them as they shall thinke good to arrest the offendors and to cary them to the Gaole And if the Iustices of peace be informed of a Riot committed at such a place and they go with the power of the Countie to suppresse it and finde no Riot there yet they are not to be blamed or fined for the leuying of the power of the Countie St. 13. H. 4. 7 27 By the said Statute of 13. H. 4. the Iustices of peace The Iustices record of a Riot Shirife or vndershirife haue power to record that which they shall finde done in their presence against the law and the trespassors and offendors shall be conuict by the Record of the same Iustices which recording must either be grounded vpon a thing done in their owne presence or else by inquirie vpon the oath of other men And therefore if two Iustices of peace assisted with the Shirife or vnder Shirife doe sée a Riot they may commaund the Riotors to be arrested then record the Riot without other inquirie But it is otherwise if they do not sée it for then they must first inquire of it by a Iury and after the same being found by inquisition they must make a record thereof which record that the said Iustices doe make must be in writing and is to remaine with one of them And they and none other of the Iustices ought to commit the Riotors to prison and to assesse their fines and to cause the same to be estreated into the Exchequer And if the Iustices do record a Riot of their owne fight the parties charged therewith shall neuer be allowed to trauerse it No trauerse to the record of a riot made of the Iustices own sight though indéed there was neuer any such Riot for their sight of the Riot being Iudges of record maketh that record in the iudgement of the law as strong and effectuall as if the supposed offendors had confessed the Riot befere them and touching the restrayning of trauerse more effectuall then if the Riot had béen found by a Iury vpon the euidence of others And if the Iustices of peace doe sée the Riot committed they may record the riot though the Riotors doe escape for that the fact is done in their presence which is the ground of their record And if the same Riotors doe escape from the Iustices at that time they cannot apprehend them at an other time for the apprehension and punishment of them must be whilest the Riot is committing or presently after and as it were whilest the blood is hot Neither in that case if the Riotors doe escape the Iustices can make any proces vpon their record neither ought it to be kept amongst the records of the peace but must be sent into the Kings Bench that proces may there be made vpon it And in that case 36. H. 6. 25. the offendors are not to be admitted to their trauerse but are of necessity to make fine for it If two Iustices of peace or more and the Shirife or vnderrshirife doe méet at a place appointed about the Kings seruice the affaires of the country or their owne priuate busines and any others to the number of thrée or aboue will make an assault in Riotous manner vpon them or any of them or vpon any other in their presence The credit of the Iustices record of a Riot they may arrest the offendors commit them to prison and record the Riot aswell as if they had come of purpose to sée and arrest Riotors but if they which doe begin a Riot doe flie into an other Countie before they doe commit the Riot then the Iustices must not meddle with them And this recording of a Riot by the Iustices of peace the Shirife or vndershirife is of that credit in the iudgement of the Law That if a man be bound by Recognizance to kéepe the peace and after such a record of being partie to the committing of a Riot is entred against him in a Scire facias awarded against him vpon his Recognizance he shall not be allowed either to iustifie the fact nor plead not guiltie thereunto 28 Whereas the said Statute of 13. H. 4. hath ordeined Stt. 3. H. 4. 7 that if the truth cannot be found then within a Moneth next after the same Iustices thrée or two of them shall certifie before the King and his Councel the whole fact and the circumstances thereof which words viz. the same haue relation to the Iustices of the Shire So that if two Iustices of the Shire and the Shirife or c. go to sée the Riot any other two Iustices may make inquirie of it and then they together or the first two or the last two may make certificat thereof Certificat of a Riot within a moneth after that inquisition taken But if the inquiry be made within a moneth after the Riot or c. committed and the certificat not made within a moneth after that then is not the certificat good nor according to the said Statute And yet if the Iustices do make an inquirie within a moneth after the Riot committed and then do giue day to the Iury to deliuer their verdict after the moneth expyred that is a good inquisition and according to the Statut for by that day giuen the Iury may enquire further and receiue more euidence to informe them of the truth of the matter If an enquest doe finde that a Riot was committed by x. persons and the Iustices doe certifie that it was committed by xx persons then the certificat and not the inquisition shall be taken for by that certificat of the Iustices it appeareth that the truth was not found by the inquisition And so it is if the inquisition be of x. persons and the certificat be of x. persons in harneis And likewise if the indictment be of a riotous assault only and the certificat bee of a riotous assault battery maiheming for though in the cases aforesaid the enquest haue found a truth yet they haue not foūd the whole truth neither that which is most for the Kings aduantage nor fully performed the meaning of the said statute but if the indictment and the Iustices certificat do vary in the day of the committing of the riot then the indictment shall be preferred before the certificat for the day doth alter nothing to qualifie or aggrauat the offence And yet séeing the said certificat is but only in the nature of a declaration to cause the parties accused to mak◠answer thereunto the same certificat ought to comprehend the certaine yeare and day though not the addition of the parties being not within the words of the statute of Additions made An̄ 1. H. 5. 5. St. 13. H. 4. 7. 29 And though the said Statute of 13. H. 4. The proces against riotors doth only make mention of a Capias yet it séemeth by the words
case of felony Relieuing them which be assembled 35 If any wife or seruant of any of the same persons 1. M. 12. or any other person whatsoeuer shall willingly and without compulsion bring send deliuer or conuey any money harnesse artillerie weapon meat bread drinke or other victuall to any person or persons so beeing assembled as is aforesaid during such time as he or they shall so be assembled or be together as is aforesaid then euery wife seruant or other person so bringing or conueying c. any of the foresaid things to the same persons so beeing assembled together in forcible manner or to any of them and not departing to their houses or dwelling places vpon request or commandement made vnto them as is aforesaid shall bee adiudged a felon shal suffer execution of death as in case of felonie Vnlawful assemblies aboue two and vnder twelue 36 If any persons aboue the number of 2. and vnder the number of 12. 1. M. 12. beeing assembled together shal intend goe about practise or put in vre with force of armes vnlawfully of their owne authoritie to murder kill or slay any of the kings subiects or to ouerthrowe cut breake or cast downe or dig vp the pales hedges ditches wall or other closure of any parkes or parke or other ground inclosed or the bankes of any fish-pond or poole to the intent that the same or any of them from thenceforth should remaine open not inclosed or void or to haue common or way in the same parks or parke or other grounds or ground inclosed or in any of them or to destroy any parkes or parke or fish-pond or poole or any warrens or warren of conies or any doue-houses or to pul or cut down any house barne or mil or to burne any stacke of corne or graine or to alter defaulke or abate the rents or yearely value of any mannors lands or tenements of any of the Kings subiects or the price of any victual corne or graine or any other thing vsuall for the sustenance or apparell of men and being required or commanded by any Iustice of peace or the sherife of the countie or by any mayor bailife or bailifes or other head officer of any citie or towne corporat where such assembly shall be had by Proclamation to be made in the Kings name to retire or returne to their habitations places or houses and they so required by such proclamation shall not so do but after that shall in forcible manner in forme aforesaid attempt to do or put in vre any of the things last aboue mentioned then euery of the same persons beeing aboue the number of two and vnder the number of twelue shall suffer imprisonment of his or their bodies by the space of one whole yeare without baile or mainprise The remedie of the parties grieued And also if any person or persons shall be damnified or hurt by the doing committing or putting in vre of any vnlawfull act or thing aboue mentioned then all and singular persons so damnified and hurt shall recouer and haue dammages with the costs of their suit sustained in that behalfe trebled against the offendors therein 1. M. 12. 37 If any persons aboue the number of two shal vnlawfully of their own authoritie assemble together to the intent with force and armes to do practise Raising of power to suppresse vnlawful assemblies or put in vre any of the things aboue mentioned Then it shall be lawfull to euery Iustice of peace to euery Sherife in any countie beeing within the K. dominions and to euery mayor bailife and other head officer of any citie or towne corporat for the time he shall be in office or any other person or persons hauing the K. commission or Letters from his highnes as wel to raise and assemble the kings louing subiects in maner of warre to be arraied in such great number as he or they then shall thinke meet or able to the intent by violence of strength to suppresse apprehend and take the said persons that shall bee so vnlawfully assembled And if the said persons so vnlawfully assembled after such cammandement or request by proclamation made shal continue together and not endeauour themselues to returne towards their habitations houses or places from whence they came in as short time as they may conueniently Then it shall be lawful to euery I. of peace sherife and also euery mayor bailife and other head officer of any citie or town corporat to euery other person hauing authoritie as is aforesaid after such commandement or request by proclamation made and to such persons as shal be assembled with any Iustice of peace or sherife or with any mayor bailife or other head officer of any citie or town corporat and with euery other person hauing authoritie as is aforesaid to suppresse apprehend take those persons so vnlawfully assembled which after such proclamation made shall continue together and not endeauour thēselues to returne towards their habitations c. And if the said persons so vnlawfully assembled together or any of them shall fortune to be killed slaine maihemed or hurt in or about the suppressing or taking of them then euery such Iustice Sherife Maior c. and euery other person hauing authoritie as is aforesaid and all and singular persons by him or them assembled shal be frée discharged and vnpunishable as well against the king as against all and euery other person and persons of for or concerning the killing maiheming or hurting of any person or persons so vnlawfully assembled that shall be killed slaine maihemed or hurt about or by occasiō of taking or suppressing of thē c. 1. M. 12. 38 All and euery Copieholder and Customary holder being a yeoman artificer husbandman A copieholder being required refuseth to serue or labourer being of the age of xviij yeares or more vnder the age of lx years not sicke impotent lame maihemed neither hauing any other iust or reasonable excuse or cause to the contrary and beeing required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commission or letters c. they declaring their said authoritie or being required by the immediat Lord or Lords of whom such copie or customary holds then shall be holden to serue the King for any the causes aboue rehearsed and refuse so to doe shall only during the life of such person or persons so refusing forfeit to his Lord or Lords of whom such copie or customarie holds then shal be immediatly holden should be holden during the life of such person or persons so refusing in case he had not refused all their copie customarie holds And it shal be lawful to euery such Lord c. his heirs or assignes of whom such copy or customary holds shal be immediatly holden should haue bin holden in case that such persons or persons had not so refused to enter
take into his or their hands or possessions all such copie customarie holds so holden of thē or any of thē immediatly to retain the same during only the life of such offēdor or offendors in such maner as he or they should haue had the rents or seruices of such copy or customary hold in case such person or persons so refusing had not refused A farmer required refuseth to serue 39 All euery farmer being a yeoman husbandman artificer or labourer 1. M. 12. beeing of the age of xviij yeares or more vnder the age of lx years not sick impotent lame maihemed nor hauing any other reasonable excuse or cause to the contrary being required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commissiō or letters c. they declaring their said authoritie or being required by their said Landlord or Landlords for the time being to whom the rents of such farmes shal be then rising growing or comming to serue the king for any the causes aboue rehearsed and refuse so to doe shall during only the life of such farmer or farmers so refusing forfeit and loose to such Landlord and Landlords as should haue had the rents of such farmer during the life liues of such person persons so refusing all their said farmes And it shal be lawfull to euery such Landlord c. their heires and assignes to whom the rents of such farmes should haue bin due during the life of such person or persons so refusing in case he or they had not refused to enter take into his or their hands or possessiō al such farms to retain the same only during the life of euery such offēdor or offendors But after the death expiration or determinatiō of the interest or terme of yeares of euery such copyholder customary holder or farmer as so shal offēd forfeit any of the said copi-holds customary holds or farmes as is aforesaid thē euery such person as should or ought to haue had the copy holds customary holds or farmes after or by the death expiration or determination of the interest or terme of years of such copie-holder customarie holder or farmer in case such copie-holder customarie holder or farmer had not so offended ne forfeited shall and may haue the same copie-hold customarie holds and farmes by entrie action admission or otherwise in like manner forme and condition and by such meanes as they and euery of them should might or ought to haue had if no such forfeiture or offence had bin had done or committed 40 If any person shal be spoken vnto moued 1. M. 12. or stirred to make any cōmotion Disclosing a commotion when one is moued insurrection or vnlawfull assembly for any of the intents aboue mētioned and doe not within 24. houres next after he shal be spoken vnto moued or stirred vnlesse he haue good and reasonable cause of excuse declare the same vnto one Iustice of the peace or Sherife of the said countie or to the Mayor Sherifes Bailifes or other head officers of any citie or town corporat where such commotion c. shall be had he shall suffer imprisonment by the space of thrée moneths without baile or mainprise vnlesse he shall be discharged by 3. Iustices of peace whereof one to bee of the Quorum of the same shire where the offence shall be committed 1. M 12. 41 If any person béeing aboue the age of eightéene yeares An able person required refuseth to serue and vnder the age of thréescore beeing able to serue and not sicke lame or impotent shall be required by any Iustice of peace or any Sherife of any Countie where any such assembly shall be or by any Mayor Bailife or other head Officer of any citie borough or towne corporat or by any other by the commandement of any such Iustice Sherife Maior c. to goe with him or them to suppresse the persons vnlawfully assembled in manner and forme aforesaid then euery person which so béeing able and required doth willingly and obstinately refuse so to doe shall suffer imprisonment for one whole yeare without baile or mainprise 1. M. 12. 42 If the King shall by his Letters patents make any Lieutenant in any Countie or Counties of this Realme Attendance vpon a lieutenant for the suppressing of any commotion rebellion or vnlawfull assemblie then as well all Iustices of peace and the Sherife and Sherifes of the same as all Maiors Baylifes and other head officers and all inhabitants and subiects of any Countie Citie Borough or towne corporat within euery such Countie shall vpon declaration of the said Letters patents and request made bee bound to giue attendance vpon the same Lieutenant to suppresse any commotion rebellion or vnlawfull assemblie vnlesse hee so required haue any reasonable excuse for his not attendance vpon paine of imprisonment for one whole yeare 1. M. 12. 43 The order and forme of the Proclamation that shall be made by the authoritie of this Act shal be as hereafter followeth The forme of the Proclamation or with the like order and words in effect viz. The Iustices or other persons authorized by this Act to make the said Proclamation shall make or cause to be made an Oyes and after that shall openly pronounce or cause to be pronounced these wordes or to the like effect The King our Soueraigne Lord chargeth and commandeth al persons being assembled immediately to disperse themselues and peaceably to depart to their habitations or their lawfull businesse vpon the paine contained in the act lately made against vnlawfull and rebellious assemblies And God saue the King 1. M. 12. 44 If any person or persons doe or shal molest let hinder Hinderance of the Proclamation or hurt any person or persons that shall proclaime or go to proclaime according to the proclamation and order aforesaid whereby such proclamation shal not be made then euery such person so molesting or hurting c. and hauing knowledge of his message shall incurre such daunger and suffer such paines and forfeitures the persons assembled to whom the proclamation should haue beene made should by this Act incurre for not obeying the Proclamation if it had béene made or for doing after the Proclamation of any the things before expressed And also all such persons beeing assembled to the number aforesaid to attempt or doe any the things aforesaid to whom Proclamation should or ought to haue beene made if the same had not beene let shall likewise in case they doe after put in vre and doe any the things aforesaid hauing any wayes knowledge of the let so made or by any meanes procuring the same let incurre like danger and suffer like paines and forfeitures aforesaid in euery their degrees as though the proclamation had beene made any clause article c. in this Act c. notwithstanding Other mens right saued 45 All
may haue a writ directed out of the Chauncerie to the Shirife only or to the Shirife and the Iustices of peace vpon the Statute of Northhampton made AnÌ„ 2. Ed. 3. St. 2. E. 3. 3. commaunding that proclamation may be made vpon that Statute 6 And for that it is conuenient that he who is with force expelled out of his lands or by force detained from the same should not be long kept out of possession thereof but that there should be a spéedie redresse to restore him to his owne and also because it is meant that the inquisition of that force should be made by men of good estate and so the more like to be indifferent of better vnderstanding and to declare the truth in those cases Therefore by the foresaid statute of Anno 8. Sta. 8. H. 6. 9. H. 6. it was moreouer ordained That when the said Iustices or Iustice shall make such inquiries as are beforesaid they shall cause their warrants and precepts to be directed to the Shirife of the same Countie A precept to the Shirife to impannell a Iurie commaunding him on the Kings behalfe to cause to come before them and euery of them sufficient and indifferent persons dwelling next about the lands so entred vpon as before to enquire of such entries whereof euery man that shall be impannelled and may inquire in this behalfe shall haue lands or tenements to the value of xl s. by the yeare at the least aboue reprises and that the Shirife returne issues vpon euery of them at the day of the first precept returnable xx s. and at the second day xl s. and at the third day fiue pounds and at euery day after the double And if any Shirife or Baylife within a fraunchise hauing the returne of the Kings writs be slacke and make not execution duly of the said precepts to him directed to make such inquiries he shall forfeit to the King xx.li. for euery such default Shirifes forfaiture and moreouer shall make fine and ransom to the King And aswell the Iustices or Iustice aforesaid as the Iustices of Assise and euery of them at their comming into the Country to take Assises haue power to heare and determine such defaults and negligences of the said Shirifes and Bailifes and euery of them aswell by bill at the sute of the party greiued for himselfe as for the King to sue by Inditement only to be taken for the King And if the Shirife or Bailife be duly attainted in this behalfe by Indictment or by bill he which sueth for himselfe and for the King shall haue the one moitie of the forfaiture of xx li. together with his costs and expences The proces And the same proces shall be made against such persons indited or sued by bill in this behalfe as should be against persons indited or sued by writ of Trespas with force and armes against the Kings peace 7 The forme of which precept by a Iustice of peace Buck. to the Shirife to returne a Iurie to enquire of Forcible entries is this Edwardus Tirrell miles vnus Iusticiariorum dnÌ„i Regis The forme of a Precept to the Shirife to returne a Iurie ad pacem in Comitatu Buck. conseruandam assignatorum vicecomiti eiusdem Comitatus salutem Ex parte dicti Domini Regis tibi mando quod venire facias coramme apud Thornborough in Comitatu praedicto 10. die Octobris proximo futuro 24. probos sufficientes legales homines de viceneto de Thornborough praedicto quorum quilibet habeat 40. solidos terrarum tenementorum vel reddituum pet annum ad minus vltra reprisas ad inquirendum super sacramentum suum si A. B. de Adstock in dicto Comitatu Buck. blacksmith alij malefactores pacis dicti domini Regis perturbatores in vnum mesuagium 20. acras terrae alia tenementa de C. D. husband de T. praedict ' manu forti super possessionem dicti C. D. ingressi sunt aut eadem cum fortitudine adhuc tenent occupant Et videas quod super quilibet Iuratorum in hoc parte impan nellandorum xx s. ad primum diem returnes hoc nullatenus omittas sub pena xx.li. quam noueris te incursurum si in executione praemissorum tepidus aut remissus fueris Et habeas ibi hoc praeceptum Datur apud Thornton xx die Septemb. Anno Regni domini nostri Regis Iacobi c. tertio 8 The forme of an inquisition or verdit of the Iury which are returned and sworne to enquire of forcible Entrie into lands or tenements or of the forcible detayning of them taken by a Iustice of peace is this Buck. The forme of an Inquisition of forcible entrie viz. Inquisitio pro domino Rege capta apud Buckingham in ComÌ„ praedicto xx die N. Anno Regni domini nostri Regis Iacobi c. quarto super sacramentum A. B. C. D. E. F. G. c. coram Thoma Temple milite vno IusticiarÌ„ dicti domini Regis ad pacem in dicto Comitatu conseruandam assignatorum Qui dicunt quod vbi H. I. de Tyngswicke in Comitur praedict husbandman qui legitime pacifice seisitus fuit in dominico suo vt defecdo de vno mesuagio cum pertinentijs in Tyngswick praedicto possessionem suam sic continuauit quousque L. M. de Maydsmoorton in Comitatu praedicto laborer alij malefactores pacis dicti domini Regis perturbatores xxx die O. iam vltimo elapso vi armis viz. cum baculis gladijs arcubus sagittis fustibus gunnis balistis in mesuagium praedictum c. intrauerunt ipsum H. I. inde expulerunt idem mesuagium c. a praedicto xxx die O. vsque ad diem captionis huius inquisitionis c. cum huiusmodi fortitudine potentia tenuerÌ„ occupauerunt in magnam pacis dicti domini Regis perturbationem contra formam statuti in tali casu editi ê“uisi vbi nullus eorum nec aliquis alius cuius statum ipsi aut aliquis eorum habuerunt aut habuit aliquid in eodem mesuagio c. aut aliqua inde parcella habuerunt aut habuit infra tres annos proximos ante ingressuÌ„ suum praedictuÌ„ nequè aliquo tempore praecedente ad notitiam Iuratorum pÌ„dictorum 9 And for that the said Statute of 8. H. 6. hath ordained That if it be found before any of the said Iustices of peace that any doth contrarie to that Statute then the said Iustices or Iustice shall cause the lands or tenements so entred or holden with force to be reseised and shall put the partie so put out in full possession of the same lands so entred or holden as before they were entred or holden Therefore when the Iustice of peace shall by the said Inquisition be informed or by the view of his owne eye perceiue that any such forcible entrie into any
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
by the bringers hereof the bodies of the said C. D. E. F. conuicted of the said forcible holding by my record commanding you and euery of you in his Ma. name that you receiue them safely keepe them in your said Goale vntill they shall haue made their fine and ransome to the King and be deliuered thence by the order of the law Hereof faile you not vpon the perill that will fall thereof Dated at Salden the 30. day of I. in the third yere of the raigne of our soueraign Lord K. Iames c. 16 And though the words of the before rehearsed stat of 8. H. 6. be Vpō cōplaint made to the I. of P. or one of thē c. yet those words do not alwais bind a I. of P. to expect the cōplaint of the party grieued or to omit to do his duty in inquiring of repressing punishing of force because the party grieued by the forcible entry or detaining of possessiō is ignorāt in séeking lawfull redres for his receiued iniury or doth intēd to take his remedy by other means but a I. of P. hauing notice of such forcible entry A Iustice may inquire of forcible entries without complaint or detaining of possession by force though it be by others and not by the party grieued may and of duty ought to goe to the place where the same force is committed to make inquisition thereof 7. E. 4. 18. and if the force be found to make restitution to the party expelled or put out by force And so by his meanes the offendor shall be punished according to his desert the partie wronged shal be restored the king shall be intituled to a fine all which without the said Iustices diligence would be omitted An action of forcible entry 17 If a man that is seised of lands or tenements of an estate in fée simple Fitz. Na. B. 248. fée taile for terme of his owne life or for the terme of anothers life be disseised or expelled thereof by force he may haue an action of Trespas of forcible entry vpon the foresaid statute of 8. H. 6. against him or them that did so disseise or expell him thereof and so he may if he be put out 6. H. 7. 12. or disseised of his lands or tenements peaceably and after the disseisor or he that doth expell him 14. H. 6. 1. doth hold them with force And in like sort he may haue the same action 3. E. 4. 19. 10. E. 4. 11. if any doth enter into his said lands or tenements with force after doth defend and hold them by force then he which is so put out and holden out with force may haue this action though the words of the statute be in the disiunctiue viz. disseised with force or disseised quietly after holden out with force for that the intent of the statute was to punish all such forces whether it were vpon the entry disseisin made or vpon the holding and detaining of the land with force in all which cases he who is so disseised or put out may haue an action of forcible entry vpon the said statute of 8. H. 6. and shall recouer his damages and costs to the treble of that which shal be found by the Enquest that he is endammaged 19. H. 6. 6. 22. H. 6. 57. 9. H. 6. 19. hath spent in his suit The writ of forcible entry must be Vi armis as wel for the occupation as for the first entry And it is to be noted that the writ declaration in an action of forcible entry must be that the def entred vi armis and not illicite or by any other such words for if the writ be otherwise it shall abate seeing a writ of forcible entry is alwaies vi armis 37. H. 6. 23. 38. H. 6. 1. and proces of Outlawry lieth in it and the declaration must expresse the certainty of the lands whereupon the defendant did make his forcible entry and which they be and not suggest that he did enter vpon certaine lands in D. And in this action of Forcible entry 35. H. 6. 6. 49. Ed. 3. 2. Co. lib. 3. 12. and in all actions Quare vi et armis a Capias doth lie and where a Capias doth lie in the proces there after iudgement a Capias ad satisfaciendum doth lie and there the king shall haue a Capias pro fine Who may brīg an actiō of forcible entry 18 None can pursue or maintaine this action of Forcible entry Fit Na. B. 248. but he who hath fréehold at the least in the lands or tenemēts so entred vpon for tenant for terme of yéeres or a copyholder cannot maintaine this action for that the words of the said stat of 8. H. 6. be If any person be put out Sta. 8. H. 6. 9 or disseised of any lāds c. and the words of the writ grounded vpon the said statute be Expulit et disseisiuit and tenant for terme of yéeres or a copyholder cānot be disseised séeing disseisin is alwaies of a fréehold which neither of them haue in that land But if tenant for terme of yéeres or a copiholder be put out by force or put out peaceably after holden out with force of land which either of them doth hold by the said estate then vpon cōplaint made by the party grieued to a I. of peace after inquisition thereof by a Iury the same force found the said Iust may reseise the said lands cause restitution thereof to be made to the party so put out for in this case the same cōplaint may be made to the said I. of P. aswell by him in the reuersiō as by the tenāt for terme of yeres or copiholder séeing he in the reuersiō who is disseised of his fréehold by this forcible entry is may as well be termed the party grieued as the tenant for terme of yéeres or the copyholder for their said particular estates And when the Iustice of peace hath made restitution the particular tenant for terme of yeares or copyholder and also he or they in reuersion shall hold and enioy their said seuerall estates in the same lands 4. 5. P. M. Di. f. 142. in such sort as they did before the said Forcible entry made But if tenant for terme of yeares be expelled out of that land which he so holdeth for the terme of yeeres he in the reuersion cannot bring an action of Forcible entry vpon the statute of 8. H. 6. for the same although it be a disseisin to him for that the expulsion is not done immediatly to him Fit Na Br. 248. 9. H. 6. 19. 19 If a man do enter by force into lands or tenements He that hath title entreth by force wherunto he hath right or title to enter doth put out him who hath the freehold of the same lāds in this case he who is so
breue nobis remittentes Teste c. S. Manasse c. 7. When the Shirife or Iustice or Iustices of peace to whom the foresaid writ is directed hath caused thrée proclamations to be made according to the purport of the said writ then he or they may enter and make search in the house houses or place suspected and search whether there bee any force of armour or weapons worne borne or vsed against the said proclamation or otherwise he is warranted by the said writ to inquire thereof by a Iurie And if any such armour or weapons be found he must imprison the offendors and seise and praise their armour and weapons so found with them to the Kings vse And if vpon the proclamation they doe depart in peaceable manner then he hath no warrant by the writ to commit them to prison But by this writ the Shirife or Iustices haue onely authority to remoue the force but not to put the party expelled in possession againe What shal be said to be force 29 Because I haue written of force forcible entry and forcible detaining of possession it is conuenient that I should somewhat declare what the law doth accompt to be force and what acts and in what manner done to be forcible This forcible entry or forcible detaining of possession which the statutes before rehearsed do prohibite must be done with some weapons either offēsiue or defensiue as with swords bucklers pykes iauelines bills clubs pitchforkes staues halberts bowes arrowes crossebowes gunnes harneys casting of stones or blocks pouring of hot coales scalding water or lead or with any other thing wherewith one man may hurt the person of another Force by number of seruants And further if a man doth enter vpon the possession of another 10. H. 7. 11. or doth kéepe a possession taken with more seruants or attendants then he doth cōmonly maintaine it is force and it shal be adiudged in him a forcible entry or a forcible detaining of possession And so it is if diuers do come with bowes bills gunnes or other weapons to a ground or to a house and enter without the disturbance of any this is an entry by force for the words of the statute of 5. R. 2. be Sta. 5. R. 2. 7 That none shall enter with multitude of people but only in a peaceable manner And in like sort if a man doe enter peaceably into a house Force by nūber of weapōs and after doth bring into the same more weapons then he and his ordinary family do commonly vsually weare besides those weapons that he doth find in the house whereof hée must make no vse to defend his possession it is a forcible detaining of possession And moreouer if complaint be made to a Iustice of peace that one hath entred forcibly into a house and doth detaine the same with force and the said Iustice of peace doth goe thither and findeth the dores shut and him or those within denying him to enter this is a detayning of possession with force though there be no weapon shewed or vsed and though there be but one person within the house for in this case the offendor doth vse the dore as his buckler to keepe the possession If the Iustice of peace doe find in the house any great number of people or any persons in harneis or hauing harneis lying by them this is a detainer with force Wherefore in all the cases aforesaid the Iustice of peace may take the power of the County breake open the dores commit the offendors to prison 11. Ass p. 25 And if a man do mowe reape sheare or sickle corne or grasse or by such other labor which cannot be done without the hands of man wherunto he hath no title this shal be adiudged an entry disseisin with force If a man do kéepe his beasts by force in another mās seueral ground 27. Ass p. 30 claiming common therein whereas he hath no common there this is a disseisin of the land by force 30. Ass p. 50 And if a man do enter into the possession of another mans land and after doth fell or lop wood there this is a disseisin by force If a man do enter into another mans house or land 11. H. 4. 16. disseise or expel him thereof after doth carry away certaine goods of the disseisées this is a disseisin with force arms and the disseisor shal be imprisoned for it 16. Assis p. 7. 14. Ass p. 18. 12. H. 4. 22. 22. Ass p. 33. 30 A woman couert may commit a disseisin with force Who may cōmit a forcible entry and be imprisoned therfore and so may an infant of the age of 18. yéeres or aboue commit a disseisin by force be imprisoned But if he be of tender age he shal not be adiudged a disseisor with force nor be imprisoned 31 Though force being opposed against the law What force is lawfull to the persons of mē is a professed enemy to the peace of the Realme yet being vsed in the maintenance of the law it is a principall protector of the same peace for the law doth put the sword of iustice into the kings hand to protect himselfe and euery of his subiects from the violēce and oppression of others and to relieue each one that hath iust cause of complaint and thereby to yeeld him peace Wherefore force is to be resembled to fire which being abused may consume the whole house and being wel guided is a meane to yeeld sustenance and comfort to euery person therein And so force may be lawfully vsed by all the kings Officers Ministers and Subiects thereunto deputed with the helpe of all others to assist them when need shall require to execute or aduance iustice or the iudgements of the Law It is lawfull force wherby all offendors in Treason Felony other great crimes be apprehended 7. E. 8. 16. caried to prison brought to their answers receiue condigne punishments inflicted vpon them for their offences It is lawful force wherby the Shirife his Vndershirife Baylifes or Deputies doe with strength apprehend any person by vertue of the kings writs to answere or satisfie the purport of the same writs St. 8. H. 6. 9. It is lawfull force whereby Iustices of peace doe remoue those vnlawfull Entries or vnlawfull detainings of possession which one man doth make into another mans land contrary to the Laws and Statutes abouesaid and whereby they doe put him againe in possession who was wrongfully disseised or expelled thereof And it is lawfull force which Iustices of peace Shirifes Coroners Constables Tithingmen Headboroughes Boroughholders al other charged and authorized to preserue the peace together with their assistants deputies or assignées shall vse in apprehending or committing to prison such as doe attempt to disturbe or breake the peace within their iurisdictions or being commanded wil refuse to put in sufficient sureties for the keeping of
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
thing and things in all points as other Iustices of Assise in their circuits or Iustices of peace in the Counties by vertue of this Act be limited and appointed to do and execute for the punishment and correction of like offendors as beforesaid is limited Sauing to the partie grieued by such deceit such remedie by way of action The remedie of the partie grieued or otherwise of for the same money goods cattels iewels or other things so obtained as he might haue had if this Act had neuer bin made Any thing in this Act c. notwithstanding 26 Forgerie of writings hath béene alwayes so hatefull in this realme that our law-makers haue pursued the practisers therof with sharpe and bitter punishment though in some cases the same was not put in vse to molest or euict any man of his land lease annuitie debt account action suit or other demaund nor to get into his hands any others goods cattels or iewels but only to escape the ordinance and censure of the law As by a statute made anno 5. Eliz. it is established St. 5. El. 7. That no person retained in husbandry or in certain inferior arts or faculties in the said statute mentioned shal depart out of one citie towne or parish into another nor out of the Lathe Rape Wapentake or Hundred nor out of the County or Shire where he last serued to serue in another Citie Towne Forging of a testimoniall c. vnlesse he haue a Testimoniall of the said Citie or town corporat from whence he departed or of the Constable or other officer c. And if any such person shall be taken with any counterfeit or forged testimoniall then he shal be whipped as a vagabond ⧠Periurie Subornation of witnesses Truth tried by the othes of men 1 THe Law of the Realme desirous to trie out truth in all causes called in question before her to the end she might procéed in iudgement and execute iustice accordingly hath in all ages prooued it to bee the best meanes to search out this truth by the othes of honest lawful and indifferent persons intending that the man who doth professe God to bee his Creator Redéemer and Sanctifier and hopeth to be saued by his blood when hee doth come in the presence of that God and his people and doth aduisely sweare that he will declare the trueth according to his knowledge in that matter in question as God shall help him which is to say as he will expect the blessing of God in this life and eternall saluation in the life to come is void of all partialitie and priuat affection in all respects to be credited and will tell the whole truth and nothing but the truth And therefore an othe is aptly termed Sacramentum a holy band or sacred tie or godly vow The credit of an othe some do call it firmamētum veritatis the foundation ground of truth and some other vinculum pacis a meane of the knot or lincke of peace And if it be taken and found by a whole Iurie consisting vpon twelue persons or aboue it is called veredictum viz. a presentment of truth And others doe hold it a ceremonie instituted by God wherein himselfe is a partie and therefore he will see it verified or sharply punished Wée know that the proofe of most of our acts déeds and writings doe depend vpon the othes of others and whatsoeuer men do for their owne particular account most certaine is altogether in most cases vncertaine vnlesse it may be iustified by the othes of others As if one doe commit murder rape burglarie robberie or other offence whatsoeuer and it be denied and cannot be prooued by the othe of some other the offendor shall escape vnpunished for it And likewise if a man do buy land of another if the feoffor doe make him a déed of feoffement thereof do seale and deliuer it and giue him possession and after will denie it vnlesse it can be prooued by the othe of some other the feoffée shall loose his land and money And so it is of leases annuities releases acquitances obligations bargaines contracts couenants promises offences entries disseisins and other matters in fait if they be denied trauersed and called in question the proof and validitie of them doth depend wholly vpon the othes and testimonie of others And there is no case so plaine which commeth in question betweene partie and partie but one of the parties to the sute may pleade such a plea as shall come to be tried by the othes of others 2 Therefore as the Lawe doth reuerently respect the othes of men What sorts of persons are to be deposed taketh her intelligence of matters in fait from them doth cleaue leane vnto them and giueth such credite and approbation vnto them that shée doth found and build her iudgements in most cases of greatest importance vpon them So shée retaineth a vigilant and carefull eye that those othes be taken by men of sinceritie of life and maturitie of iudgement persons not stained with Periurie or other gréeuous or foule offences men indifferently affected and such as will in swearing respect the trueth of their knowledge and not the face of the person for if shée espie any of those defects in him she doth either wholly reiect his othe or else shée giueth little or no credite vnto it and further inflicteth condigne punishment vpon him according to his desert Mag. Char. 9. H. 3. 29. 3 And because the King himselfe at his Coronation is sworne that iustice shall be solde deferred or denied to no man nor that any man shall be condemned but by lawfull triall and euery of his Iudges be sworne that hée shall doe equall Lawe and execution of iustice to all the Kings Subiects Sta. 18. Ed. 3 rich and poore without hauing regard to any person All the parties to the execution of iustice sworne Therefore the law hath deuised that those Iudges before whome any cause is called in question and is brought to an issue shall be informed of the trueth of that issue by the othes and verdict of twelue Iurors who are impannelled returned and sworne to trie that issue to the end the same Iudges may ground their iudgement thereupon and so doe equall iustice to the parties according to their oathes and also that the saide Iurors shall be ascertained of the veritie of the fact by the Othes of witnesses or other euidences that they may giue their verdict thereupon according to their Othes And séeing those Iurors being the greatest number of persons that be vsually sworne for the furtherance and execution of iustice be returned by the Shiriffe of the Countie where the cause dependeth in question his vndershirife or the Bailife of some Libertie or for some default in them by the Coroners Therefore the Lawe hath further ordained that the saide Shiriffe Vndershiriffe or c. shall be indifferent persons of themselues and also deale vprightly
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
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
verdit or misdemeanors shall happen to be made shall haue full power to compell such Iurors and euery of them vpon paine of imprisonment to be bound by Recognisance in a certaine summe of money by their discretion to be limited that the same Iurors and euery of them shall personally appeare at a certaine day by the same Iusticiar Steward or other officer to be limited before the Lord President and other of the Councell aforesaid for the time being then and there to abide and stand to such direction and order as the same councell shall make ordaine and decree of in and vpon the same And the same councell shall thereupon haue authoritie by examination or otherwise to heare and determine all and euery such cause and shall haue like authoritie to commit euery of the same Iurors to prison or other punishment as shal be thought meet by the discretion of the said counsel or otherwise assesse or taxe euery such Iuror to his fine and ransome by the same discretion to be paied and leuied of their lands goods and cattels to the vse of the King Periurie committed by witnesses 20 Hauing written of the restraint and punishment of periurie in Iurors consisting of twelue persons at the least impannelled or sworn to deliuer their verdict according to their euidēce I am now to expresse what punishments the law doth inflictt vpon such which doe come one by one as deponents or witnesses to testifie the truth and to informe the Iudge or the Iurie of the veritie of the matter in issue or question according to their knowledge whereof euery man by himselfe may be called singularis testis though there be more witnesses sworne in that cause And séeing that iustice cannot be executed without the knowledge of the truth of the cause in question that truth is in most cases only to be deliuered by the othes and testimonies of such parties as were witnesses priuie or best acquainted with the matter in variance Therefore first it is to be obserued that the wisdom of the law hath thought it necessarie to prouide that such witnesses may be compelled vnder a great paine to appear in court and testifie their knowledge concerning such matter in question as by the Statute made Anno 5. A witnes vpon proces serued shall appeare El. it was ordained St. 5. El. 9. St. 29. El. 5. That if any person vpon whom any proces out of any of the courts of Record within this Realme or Wales shal be serued to testifie or depose concerning any matter depending in any of the same courts and hauing tendered to him according to his countenance or calling such reasonable sums of money for his costs and charges as hauing regard to the distance of the places is necessarie to be allowed in the behalfe doe not appeare according to the tenor of the said Proces hauing not a lawfull and reasonable let to the contrarie then the partie making default shall forfeit for euery such offence x. l and shall yéeld such further recompence to the partie grieued as by the discretion of the Iudge of the court out of the which the said proces shall be awarded according to the losse and hindrance that the partie which procured the said proces shall sustaine by reason of the non appearance of the said witnesse the said seuerall summes to be recouered by the partie so grieued against the offendor by A.I.B.P. c. in any of the K. courts of Record wherein no W.E. or P. c. 21 There were seuerall statutes made during the raignes of king H. 6. K. H. 7. and K. H. 8. against Periurie and the procurers and committers of periurie and lastly one was ordained Anno 32. H. 8. St. 32. H. 8. 9 against such as should suborne witnesses to the hindrance of Iustice and the procurement of periurie Sithence the making whereof for that the penaltie therein is small towards the offendors in that behalfe the said offence of subornation and sinister procurement of false witnesses did neuerthelesse greatly increase and by reason of the wilfull Periurie committed by the same suborned witnesses diuers persons did sustaine disherison and great impouerishment as well of their lands and tenements as of their goods and cattels The penaltie for procuring of wilfull periury in witnesses for the redresse and more sharpe punishment whereof St. 5. El. 9. 29. El. 5. by a Statute made Anno 5. El. it was enacted That all and euery person and persons which shall vnlawfully and corruptly procure any witnes or witnesses by Letters Rewards Promises or by any other sinister and vnlawfull labour or meanes whatsoeuer to commit any wilfull and corrupt Periurie in any matter or cause whatsoeuer depending in suit and variance by any Writ Action Bill Complaint or Information in any wise concerning any lands tenements or hereditaments or any goods cattels debts or dammages in any of the courts of the Chauncerie Starre chamber White hall or in any other of the Kings Courts of Record or in any Léet view of Franke pledge or Law day Auncient demesne Court Court Hundred Court Baron or in the Court or Courts of the Stannerie in the countie of Deuon and Cornewall Or shall likewise vnlawfully and corruptly procure or suborne any witnesse or witnesses which shall bée sworne to testifie in perpetuam rei memoriam Then euery such offendor or offendors shall for his hers or their said offence béeing thereof lawfully conuicted or attainted forfeit fourtie pounds to the King and the partie grieued hindered or molested by reason of any of the offences aforesaid 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 bée allowed And if it happen any such offendor or offendors béeing so conuicted or attainted as is aforesaid not to haue any goods or cattels Lands or Tenements to the value of fourtie pounds then euery such person or persons so conuicted or attainted of any of the offences aforesaid shall suffer imprisonment one halfe yeare without Baile or Maineprise and stand vpon the Pillorie one whole houre in some Market Towne neere or next adioyning to the place where the offence was committed in open market there And no person béeing so conuicted or attainted shall bée from thenceforth receiued as a witnesse to bée deposed in any court of Record within any of the Kings dominions of England Wales or the Marches of the same vntill the Iudgement giuen against him or them shall bée reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued shall recouer his or their dammages against all and euery such person and persons as did procure the said iudgement so reuersed to bee first giuen against them or any of them by action to be sued vpon his or their case according to the course of the common Law St. 5. El. 9. 22 If any person or persons either by the subornation
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
right to another and if any doe and bée attainted thereof the taker shall forfeit to the King so much of his lands and goods as doth amount to the value of the part that he hath purchased for such Maintenance and to obtaine that any person that will shall be receiued to sue for the king before those Iustices before whom the suit doth depend and the iudgement shal be giuen by them But it may not be vnderstood in this case Pleaders may giue counsell for their fées that a man may not haue counsell of pleaders and learned men for his fée nor of his next friends And after to the intent to impose a sharper punishment vpō such as should be offendors in Maintenance Champerty or the like by a statute made Ann̄ 33. E. 1. it was enacted St. 33. Ed. 1. That if any person do take vpō him for Maintenance Champerty or the like bargaine any manner of suit or plea against another The punishment of champertors is attainted of such assumption suit or bargaine or of consent thereunto he shal be thrée yeares imprisoned and further punished at the kings pleasure 8 And so it appeareth by the foresaid statutes that it is Champerty Fit Nat. Br. 171. 7. Ed. 3. 9. Fit champ 6. where a man by couenant or agréement made by writing or word What is chāperty what not doth bargaine to haue parcell of the land debt or other thing which is in suit if it be recouered to aid and maintain the party to that suit and in this case he that is the other party to that suit oppressed or grieued by this Maintenance may prosecute a writ of Champerty against the same offendor 9. H. 6. 64. or a writ of Maintenance at his choice for euery Champerty is Maintenance but euery Maintenance is not Champerty And in this case of Champerty he that selleth his land or demiseth his land for life or yeares or any part thereof during the time that the same land is in suit shall be punished according to the foresaid statute of 28. Ed. 1. as well as he that purchaseth the same land Fit champ 5. 30. Ass p. 5. 8. Ed. 4. 13. And the writ of Champerty may be brought against the buyer alone or against the seller alone And it is all one penalty where he selleth his land for mony or other consideration and where hée fréely doth giue his land for if it be giuen during the time that the land is in suit it is Champertie for the Law doth prohibite euery man to obtaine land when it is in suit But if a man purchase land after iudgement it is no Champertie for then there is no suit depending touching that land and if a man that is learned in the Law and doth giue counsell therein 13. H. 4. 19. doe take part of the land that was in variance of his client for his fées after the same is recorded this is no Champerty So that the bargaine be made after the recouery of the land and not depending the suit 47. E. 3. 9. 7. E. 4. 15. And if a man doe bring an action against another and do recouer the thing in question against the defendant yet the plaintife may haue an action of Maintenance against euery person that shall maintaine the defendant in that suit though he hath lost nothing by that Maintenance for that the same Statute of 28. Edw. 1. is a prohibition of Champertie And if a man doe bargaine for land before any suit is commenced for the same and after a suit is prosecuted against the tenant of the land for the same Fit champ 15. if the same tenant doe make a feoffement or other assurance to the purchasor according to his bargaine of the same land during the time of the same suit yet this is no Champertie For in this case the seller did not assure this land to the purchasor vpon couenant to haue Maintenance but to performe his former bargaine and the sale was before the suit though the performance thereof was after And if a man doe make a feoffement of land to others to his owne vse 8. E. 4. 13 during the time that a suit is depending for the same land this is no Champertie for the feoffement was not made to haue Maintenance in that suit but to haue the possession of the land to bée transferred to others and yet to the same vse it was before And a man may giue land to his sonne in Franke-marriage 6 E. 3. 33. or for the terme of his life during the time that a suit is depending against him of the same land and it is no Champertie for that the words of the statute of Anno 28. Edw. 1. be But it is not intended that a man shall not haue counsell of pleaders and of learned for his fée nor of his next friends and the father is bound to relieue and helpe his sonne as much as he may and it is no Maintenance nor Champertie in him to assure the land to his sonne nor in the sonne to take it 21. Ed. 3. 52. And in a writ of Champertie it is a good plea for the defendant to plead That he purchased the land of him who recouered it for his money and not for Champertie to maintaine the suit And if a man doe make a lease for the terme of life of land Fit champ 14. and after the tenant for life is impleaded for the same land and depending that plea the tenant for life doth surrender his estate for life to him in Reuersion this is no Champertie 6 Maintenance may also bée committed in other sorts then be aforesaid Maintenance by Embracery viz. by Embraceors St. 33. Ed. 1. and by Iuries By the Statute of Anno 33. Edw. 1. an Embraceor is described to be one that commeth to the barre with the party and speaketh in the matter and is there to suruey the Iurie And he is accounted an Embraceor Fit Nat. Br. 171. who will threaten the Iurie or any of them if they doe not giue their verdict by his direction and he also who is a procuror of a Iurie to appeare 13. H. 4. 19. that is commonly called a leader of Enquests And the punishment of Maintenance both in Embraceors and Iurors is assigned by the Statutes of Anno 34. Edw. 3. Anno 38. Edw. 3. whereby it is ordained St. 34. E. 3. 8. 38. Ed. 3. 12. That if any Iuror sworne in Assises Maintenance by Iurors or other Enquests to be taken betwéene the King and the party or betwéene party and party 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 party which will sue for himselfe or for the king or of any other person entring his plaint by Bill immediatly before the Iustices before whom the Iurie was sworne the
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
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
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
maintaine the suit and so may A. for either of them hath interest in this debt and one of them may aid assist and maintaine the other to recouer his debt against C. in respect of their seuerall interests in the same debt But if in this case A. had promised to B. but part of this debt to haue prosecuted and maintained this suit then it had beene Champertie and vnlawfull maintenance in B. And the same law is 34. H. 6. 30. if one man be bound by Obligation to pay another man xx l. to the vse of a third man the Obligée and hee to whose vse the Obligation was made may both meddle in the suit of this Obligation 27 And so it is in goods for he that hath any propertie title Maintenance in respect of his title to goods or lawfull possession in goods 39. H. 6. 20. may maintaine a suit that is prosecuted against another touching the same goods As B. brought an action of Debt against A. in London and the Sherife returned that A. had nothing c. Wherupon at the plaintifes surmise certain goods of A. were attached in the hands of I. according to the custome of the said Citie and a Scire facias was awarded against the same I. to answer for those goods in which A. did maintaine the same I. in nominating vnto him a learned man in the law to whom by his aduice he went for his counsell and this was awarded maintenance iustifiable for that the propertie of the goods fo attached in the hands of I. were and did continue in the said A. Maintenance in detaing of a writing deliuered in trust So it is if one man doe deliuer a déed or other writing to another to be kept if a straunger will bring an action of Detinue against him to whom the same was deliuered the partie who deliuered that writing may lawfully maintaine him in that suit for the interest hee hath in the same writing And yet the recouerie of that writing would not haue bound him that did deliuer it but hée might haue had his action for the same against him that did recouer it Maintenance in respect of his ioynt interest with others 28 As euerie person may lawfully maintaine any suit that shall be prosecuted which concerneth his priuat and particular land lease rent debt or goods so may he maintaine a suit touching any land or other thing which hée hath ioyntly or in common with others 18. E. 4. 2. As the Parson of a Church brought an action of Trespasse against one of his Parishioners for digging of his ground and spoyling of his grasse Whereunto the defendant pleaded That the place where the Trespasse was supposed to be done is a Churchyard consecrate by the Bishop and that he and all those who are inhabitants in the same Parish haue vsed to haue their Sacraments and buriall for their dead there And that one of the inhabitants of the same Parish dyed and hee with others brought his bodie to the Church and after made a graue for him in the same Churchyard and there buried him which is the same digging whereof the plaintife hath conceiued his action Whereupon they were at issue In this case it was agreed by all the Iustices that euerie inhabitant of the same Parish may lawfully giue euidence and otherwise maintaine this issue though they be not parties thereunto for euerie of them hath the like interest in the Churchyard Maintenance by all the inhabitants of a parish as the partie to that suit And the same reason and law seemeth to be if there be a suit commenced betweene one or more inhabitants of a village Hamlet or Parish and some other person or persons for a common or way or for the digging of a pit of stone marle grauell morter sand c. vsed or claimed to belong or of right to bee due to the inhabitants of the same Village Hamlet or Parish after issue ioyned touching the right or title of the same common way or pit the residue of the inhabitants of the said Village Hamlet or Parish may aide and assist their neighbour or neighbours partie to that issue and it is lawfull maintenance for it tendeth to the benefit or preiudice of all the said inhabitants and is in a sort their owne case Maintenance of a poore man in his suit 29 In a Writ of Maintenance the plaintife supposed that the defendant did maintaine one A. in an action which the plaintife brought against the sayd A. Whereunto the defendant pleaded That the same A. was a poore man 32. H. 6. 35. 21. H. 6. 15. and had nothing to defend himselfe in the suit which the plaintif had commenced against him and that the defendant of his almes gaue him xx s. which is the same maintenance This was allowed a lawfull maintenance and iustifiable for any man to doe for whereas vnlawfull maintenance is in case when a man doth maintaine a suit to haue the whole or parcell of the land 9. H. 6. 64. or thing in question or to haue some other consideration to further or vphold that suit or where a man hauing nothing to do nor colour to meddle yet wil vndertake for euill will to maintaine that cause in question this giuing mony to a poore man to defend his right is not to either of the intents aforesaid but bestowed vpon a charitable disposition to search out truth and further the execution of iustice which appeareth by the stat of 11. H. 7. wherin the king and the whole parliament willing indifferent iustice to be ministred according to the common laws as wel to the poore as to the rich and perceiuing that the poore were not of abilitie to sue according to the law of the realme for the redresse of their iniuries and wrongs ordained that the king himselfe the L. Chancellor and some of each profession towards the law should in a sort aid and assist them the words of which stat be these St. 11. H. 7. 12 viz Euerie poore person which shall haue cause of action against any other shal haue by the discretion of the Chancellor Proces counsellors and Atturneyes assigned to aid the poore writs originall writs of Subpena according to the nature of his cause nothing paying to the K. for the seales of the same nor to any person for the writing of the same writs And the said Chancellor shall assigne such of the clerkes which shal vse the making and writing of the writs to write the same readie to be sealed and also learned Counsell Atturneyes for the same without taking any reward therefore And after the said writs be returned if it bee before the King in his Bench the Iustices there shal assigne to the same poore person counsel learned by their discretions which shall giue their counsell nothing taking for the same And likewise the Iustices shall appoint Atturneyes for the same poore person all other
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
be adiudged to the pillory the third time he shal be imprisoned make fine the fourth time he shall forsweare the towne And in this manner shal it be done of all that offeÌ„d in like case as of cookes that séeth flesh or fish any waies that is not holesome for mans body or after that they haue kept it so long that it looseth the naturall holesomenesse then séeth it againe and sell it And in like sort St. 39. El. 10 by one other statute made An. 39. El. it was enacted That if any alien or stranger born or any denizen or naturall born subiect of this realme shal bring into any hauen port créeke or town of this realme any salt fish or salt herrings which shal not be good swéet seasonable méet for maÌ„s meat shal offer the same to be sold and shall be warned by any officer of such Port c. where the same shal be offered to be sold that the same be not seasonable nor méet for mans meat Then if he or they shall after that offer any of the said vnseasonable fish to be sold to any person within this Realme or being an alien borne and no denizen shall not depart with the same from the said Hauen Port or Towne so soone as conueniencie will serue Then all and euery person owners therof shall forfeit to the Queen all the said vnseasonable fish vnméet for mans meat as is aforesaid And by a statute made Anno 4. Ed. 3. it was established St. 4. E. 3. 12 That assay shall be made of wines twice euery yeare once at Easter and another time at Michaelmas and more oft if néed be by the lords of the Townes and their Baylifes and also by the Mayors and Baylifes of the same townes and all wines that be found corrupt shal be powred out and the vessels broken ⧠Extortion Exaction 1 EXtortion is a wrong done by an Officer What is Extortion as Ordinarie Archdeacon Officiall Maior Bailife Shirife Escheator Coroner Vndershirife Auditor Receiuer Clerke or other Officer or by any other by colour of an office in taking of an excessiue reward or fée and more then the law doth allow him for execution of his said office which offence in some degrées is worse then the priuy picking of a mans purse in secret and the transgressor in a sort may be compared to the Fréebooter which with drawne sword and with menacing words assaulteth the trauailer by the way who casteth down his purse to him for feare of further hurt And so is the poore sutor many times inforced to doe to the Officer when of necessitie he must vse his helpe It is a thing most odious and offensiue to the iustice and peace of the Realme and to all the members thereof that those men who be specially made choice of and principally selected to serue their prince and countrey and to further the execution of iustice in their offices and places and be sufficiently rewarded with conuenient stipends for their paines therein should in contempt of the law assesse their owne fées in a sort put their hands in other mens purses and there take what they will and thereby doe wrong vnder the colour and shadow of iustice Exaction is a wrong done by an officer What is Exaction or by one pretending to haue authoritie in demaunding and taking reward or fée for that matter cause or thing which the law doth allow no fée at all And as our common statute lawes haue declared which offences or acts they doe condemne and adiudge as Extortions and Exactions so haue they prescribed in most cases seuerall penalties to be inflicted vpon the seuerall transgressors therein leauing the residue to be punished at the kings pleasure or by the discretion of such of his Iudges Iustices or others by his commission authorized before whom the offendors shall be thereof conuicted And further our said statute lawes haue set downe for the most part what fées or duties the sutor ought to pay to the officer the officer is to demaund of him to the intent that the one shall not be ignorant what to offer nor the other what to require and to the end that the Law hauing written it in a sort in the officers forehead what his duty is he may blush when he looketh in the sutors face and demaundeth more 2 I will begin with an Exaction that no former generation did tast of heare of or feare but it hath sprung vp of later yeares bin greatly exclaimed of and condemned in this our present age which is taking of money or some other reward for a Report or Certificat wherein the offendor most commonly doth a double iniury and to two seuerall persons viz. first to him whose mony fee or other reward he taketh for the fauourable making of that report in his behalfe whereas the law doth allow him none for reporting but otherwise bountifully rewardeth him for that and all such other paines and next and chiefely to him in preiudice of whom or whose case he maketh that report He doth not now indifferently respect the cause in question but bendeth his eye vpoÌ„ the reward which he hath receiued and deuiseth to accomplish the request of the one and yet to yéeld to the other not the effect but some colour of iustice The King at his coronation doth promise to all his subiects Mag. Chart. St. 9. H. 3. 29 Quod nulli vendemus nulli negabimus aut differemus iusticiam whereupon the whole realme did take it vnkindly at their hands who being the kings Substitutes in place of iustice and receiuing but a small particle of his authoritie would doe then all the said offences at once and sell denie and deferre iustice to some of the kings subiects certifie that for good which was bad or that for iustice which was méere iniurie Or if they did make report and certificat of that which was iust and true would sell it and take money or other reward for it which the king himselfe vpon his oath refuseth to doe And therefore because all exâ—â—tions extortions and corruptions be odious as well in this as in all other well gouerned Commonweales and to the intent to preuent the like enormities in this and other ages by a statute made Anno 1. Iacob it was enacted St. 1. Iac. 10 That no person to whom any order or cause shal be committed Exaction by taking or reward for a report or referred by any of the Kings Iudges or Courts at Westminster or any other Court directly or indirectly or by any act shift colour or deuice haue take or receiue any money fée reward couenant obligation promise agréement or any other thing for his report or certificat by writing or otherwise vpon paine of forfeiture of one hundred pounds for euery such report or certificat and to be depriued of his office and place in the same Court The one moitie to be to the king his
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
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
seasonable wood bée of it selfe no wast 40. E. 3. 15. 12. H. 8. 1. 10. H. 7. 5. yet if Willowes or any of the trées aforesaid doe growe within the viewe or scite of a Mannor house to defend the house from tempests and stormes or néere vnto the banke of a Riuer to defend the Banke then the felling of them is wast and the tenant of the land is punishable for the same by an action of Wast If a tenant for yeares life 20. Ed. 3. Wast 32. 9. H. 6. 66. 11. H. 6. 1. 22. H. 6. 12. 4. H. 3. Wast 140. or c. doe fell Oakes Ashes or Elmes and after he hath felled them he doth suffer cattell to come into the same ground which doe croppe and spoyle the sprouts or newe springs growing out of the rootes of the same trees then this is a newe and another Wast and punishable by the same Action of Wast that the Trees bée or by another in which Action hée in the Reuersion or Remainder shall recouer treble dammages first for the Trees felled and also treble dammages for the springs spoiled though hee can but once recouer the place wasted If the Termor doe fell greene wood to burne 20. E. 3. Wast 32. 7. H. 6. 40. 22. H. 6. 24. where hee hath dead wood sufficient it is Wast But the felling of dead wood which will beare no leaues in Summer is no Wast neither is the pulling downe of a hedge Wast or of a Pale or Wall that is vncouered Wast And the foresaid Writ of Wast proceedeth further to punish wast in Gardens Wast in gardens Therefore if the Termor doe fell and destroy Appletrees or Pearetrees growing dispersed in seuerall places of the ground demised vnto him it is no Wast for hee may fell them and take them to burne as seasonable wood 10. H. 7. 5. 21. H. 6. 46. But if he fell a whole Garden or Orchard of Apple-trees or Pearetrees or any great number therein it is wast for the wordes of the Writ of Wast doe expresse so much which be Non liceat alicui vastum vendicionem seu destructionem facere in terris domibus Boscis seu Gardinis And if any Appletrees or Pearetrees be throwne downe by the winde in an Orchard or Garden 44. E. 3. 44. and they doe leane vpon some of their boughes and the spurres or rootes of them continuing fast in the ground doe so cherrish the trees that they doe beare fruit it is wast to fell and carrie them away And to make an end of this Braunch with the wordes of the foresaid Statute of Marlebridge touching exile of men If the tenant for yeares life or c. of a Mannor doe so vexe the villeins regardant of the same Mannor by Distresses Wast in men Fines Amerciaments 29. H. 8. Dyer 37. Fit N.B. 55 Fitz. Wast 2. 113. 118. 130. 131. or otherwise that the same villeins doe depart from their Tenements this is to the disheritance of him in the Reuersion or Remainder and therefore punishable by an Action of Wast But if the Termor of a Mannor during his estate doe enfraunchise a villeine regardant to a Mannor this is no Wast punishable by the Lawe 2. H 6. 11. for after the particular estate ended he in the Reuersion or Remainder may seize the same villeine againe cum tota sequela sua If the tenant for yeares life or c. of a Manor or other land wherein there bée cottages or small Tenements doe demise the same Cottages or c. to seuerall Tenants and they doe die of the Plague and the same Leassée can get none other tenants to inhabit the same Cottages or c. whereby they doe decay and fall downe 44. E. 3. 21. Fitz. Wast 104. 105. the Leassée is not punishable therefore by an Action of Wast for that the wast which ensued by the death of those Cotiées or inferiour tenants came by the visitation and hand of God and not by any default of the Termor and therefore the said Termor doing his endeauour to reforme the defect and to prouide other tenants and béeing not able to performe it could not redresse the same 10 When one person doth bargain couenant or coÌ„clude with another for any paimeÌ„t matter cause or thing to be ê‘formed is once fully satisfied therof by money wares or other means according to the true inteÌ„t of the same agréemÌ„t if the same partie doe after sue or attempt by course of Law to obtaine a new or other satisfaction for the same contract this a plaine and manifest wrong and oppression for the said partie doth in a sort endeauour to bee twice satisfied for one debt or dutie And likewise it is an oppression and wrong if one person doe endeauour to lay a burden or charge vpon others which the Lawe of the Realme will not impose vpon them or which himselfe alone or himselfe with others ought to sustaine or when one person shall imprison or restraine another of his libertie who by law ought to bée free As if one person bée bound to another by Statute marchant or Statute Staple for the paiment of a summe of money whereof there is a defeasaunce that if the Conusor doe pay to the Conusée a lesse summe of money at a day prefixed 46. Ed. 3. 4. 47. Ed. 3. 26. 20. E 3. Fi. N.B. 105 or diuers summes at seuerall daies or doe performe certaine couenants or agreements in the said defeasaunce or in certaine Indentures made betwéene them specified and the conusor doth pay the said summe or seuerall summes of money or doth performe all the couenants in the said Indenture specified according to the purport of the said defeasaunce and that notwithstanding the Conusée doth sue execution of the said Statute against the Conusor this is a manifest wrong and oppression pretended to the Conusor Wherefore the Conusor for his reliefe may haue an Audita querela directed out of the Chauncerie to the Iustices of the Kings Bench Oppressions redressed by an Audita querela or Common Place comprehending the whole matter and charging them to call before them the parties Plaintife and Defendant and to doe them iustice according to the Law and Custome of the Realme which is either to graunt a Supersedeas to stay the Execution or to set the bodie of the Conusor at libertie if hée be taken and imprisoned therefore and to discharge his lands and goods of execution if the suggestion of the plaintife in the said writ be prooued to bée true And if the Conusée in the case aforesaid doe take away the defeasaunce or Indenture from the Conusor 47. Ed. 3. 26 Fi. N.B. 103 and after extend the same Statute against him this is likewise an oppression and to bée redressed by an Audita querela And in like sort if the Conusée after the said Statute acknowledged doe make a Release or Acquitance of the same to the Conusor and
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
such offence of returning or being in this realme or c. without submission as is aforesaid shall be adiudged a Traitor and suffer and loose and forfeit as in case of high Treason 20 Hauing treated of Treasons generally and first shewed which be high Treasons and which petit Treasons by the common lawe and which be made treasons by Statutes It resteth that I declare what is Misprision of treason how many sortes thereof there be and what is the penaltie or punishment of the offendors therein What misprision of treason is Misprision of treason or felony is most properly when any person doth vnderstand or know that another person hath committed treason or felony and he will not disclose it to the King or his Councell or to some Magistrate that it may be repressed and punished but doth conceale it Bracton writeth Bracton de Corona cap. 3 That if any man doth know another to be guilty of a treason or to be vehemently suspected thereof he ought presently and without any delay come to the King if he can or send to him if he be not able to come or to some other néere about the King and to declare euery thing in order he ought not tarrie in one place two daies or two nights before he doth sée the Kings person neither must he attend any other busines be it of neuer so great importance for hée is scarcely allowed to looke backe because if he doe delay and conceale the matter for a time he shall be accounted a manifest deceiuer of the King and as consenting and agreeing to the offence whether the partie which is accused be his familiar friend or a stranger and if he would after accuse the offendor he shall not be heard vnlesse he can prooue that he was hindered vpon good cause And to the intent it might be certainely knowen what misprision of treason is the Statutes of 5. 6. Ed. 6. St. 5. E. 6. 11 1. 2. P. M. 10. and 1. 2. Ph. M. haue defined it in this manner viz. concealement or kéeping secret of any high treason shal be déemed and taken only misprision of treason the offendors therein to forfeit and suffer as in cases of misprision of treason as héeretofore hath béene vsed The forfeture in misprision And in all cases of misprision of treason the offendor shall forfeit to the King his goodes and his lands during this life 2. R. 3. 10. and he shall be imprisoned during his life And euery treason or felony doth include Misprision so that where any person hath committed treason or felony the King if hée will may cause the offendor to be indicted and arraigned but of misprision But some other offences partly by the common Lawe and partly by Statute be misprision of treason besides concealement or kéeping secret of treason which be héereafter expressed 21 By reason that diuers euill disposed persons as well without this Realme as within were boldened to counterfait and forge such kinde of golde and siluer and vtter the same in the Realme as is not the proper coine of this Realme nor currant in paiment in this Realme because before there was no condigne punishment prouided for such offences For the redresse whereof St. 14. El. 3 by a Statute made Anno 14. Elizab. 3. it was enacted That if any person or persons shall héereafter falsely forge Counterfaiting of money not currant or counterfait any such coine of golde or siluer as is not the proper coine of this Realme nor permitted to be currant within this Realme Then euery such offence shall be déemed and adiudged Misprision of high Treason And the offendors therein their procurors aiders and abettors being conuicted according to the Lawes of this Realme of such offences shall be imprisoned and forfeit such Landes goodes and Chattells as in cases of Misprision of treason for concealement of treason S. Br. 6. St. 23. Eli. 1 22 By the Statute made Anno 23. Elizab. 1. Aiding of perswaders to Romish religion it is enacted and declared That all and euerie person and persons that shall wittingly bée Aidors or Maintainors of such persons as shall offend in perswading or reconciling to the Romish Religion or in being reconciled thereunto or in any of the same offences knowing the same or which shall conceale any of the saide offences and shall not within twentie daies at the furthest after such persons knowledge of such offence disclose the same to some Iustice of Peace or other higher officer shall be taken tried and iudged and shall suffer and forfeit as offendors in misprision of Treason S. Br. 17. Concealing of reconciliation offered 23 By the Statute made Anno 13. Elizab. 2. it was ordained St. 13. Eli. 2. That if any person or persons to whom anie absolution reconciliation bull writing or instrument obtained from the Bishop of Rome or any of his successors or from any other claiming authoritie from or by them shall be offered mooued or perswaded to be vsed put in vre or executed shall conceale the same offer motion or perswasion and not disclose and signifie the same by writing or otherwise within sixe wéekes then next following to some of the Quéenes priuie Councell or to the president or vicepresident established in the North or the Marches of Wales for the time being Then the same person or persons so concealing shall incurre the penaltie and forfeit of misprision of high Treason But no person or persons shall be troubled in or for misprision of high Treason for any offence made Treason by this Act other than such as by this Act before are declared to be in case of misprision of high Treason S. Br. 16. Recording an indictment not found 24 If a Iustice of Peace doe inroll a bill of indictment not found by the Countrey amongst other indictments which be found 2. R. 3. 10. This is a great misprision and fineable and he shall loose his office Drawing a sword to strike a Iustice 25 If one draw his sword to strike a Iustice assigned Mi. 22. Ed. 3 13. sitting in place of Iudgement this is misprision of Treason and the offender being indicted and found guiltie thereof shall haue iudgement to forfeit his landes and chattels to haue his right hand cut off to be perpetually imprisoned for that the Iustice assigned by the Kings Commission to execute iustice sitteth in the place and stead of the King and so the offender opposeth himselfe against the King and the office of iustice Striking a Iuror in a Iustices presence 26 If in the presence of a Iustice assigned M. 19. Ed. 3. Fitz. Iudgement 174. one doe strike a Iurour that is returned vpon an Enquest this is misprision of Treason and the offender being indicted thereof shall haue iudgement to loose his lands and goodes to the King to haue his right hand stricken off and to be committed to perpetuall prison
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
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
persons by him or them assembled shal be free discharged and vnpunished as well against the King as against all and euery other person and persons of for or concerning such killing maiheming hurting c. for it is homicide by iustice done and committed by persons lawfully authorised vpon such riotous and rebellious persons which after Proclamation made will not depart and seuer themselues asunder and submit and yeeld themselues obedient to the law of the Realme S. Riots 37. 5 As any man may iustifie the killing of another before arrest Killing him that is carrying to the Gaole if he wil not yeeld so may he doe after arrest if there be any ineuitable necessitie therein as if an offendor be arrested for felony 22. Ass p. 55 Fitz. Cor. 288. and when he is in leading towards the Gaole he breaketh from those that doe conduct him and flieth away and his conductors doe pursue him so that they cannot apprehend and take him againe without killing of him In this case if they doe kill him this is homicide by iustice and iustifiable for that the offendors would not yeeld to the triall iustice of the law But if he which killed the offendor procured the matter which is iustifiable for the cause aforesaid to be found before himselfe in respect of some iurisdiction which he hath to enquire of felonies Fi. Cor. 328 he shall not bée discharged vpon such an indictment found vntill he be arraigned thereof and the matter also found by verdict because he himselfe was Iudge But the law is otherwise if it were found before other commissioners 6 As a man may kill an offendor before arrest Killing a prisoner attempting to escape or after arrest if he will not yéeld so in some case a man may kil him that is vnder arrest in prison As a Gaoler came in the night with a Lanthorne in his hand to see his prisoners who before his comming had broken their yrons 22. Ass p 55 and stood all ready to kil him and did beat and euill intreat him and he hauing a hatchet in his hand therewith slew two of them and escaped from the residue This was adiudged to be well done and to deserue no punishment for this was by the Gaoler homicide done by iustice to kill them who attempted to kill him and who indeauoured to escape the triall and iustice of the law St. 24. H. 8. 5 7 It appeareth by the Statute of an̄ 24. H. 8. 5. Killing him that attempteth robbery or burglary That it is homicide iustifiable if a man doe kill an offendor which attempteth feloniously to robbe or murder him 22. Ass p. 55 26. As p. 23 32. Co. l. 5. f. 91 Fi. Cor. 303 305. in or néere any high way cart way horse way or foot way or in his mansion house or to kill him which attempteth burglarie to breake his dwelling house in the night and that the same shal be by verdict so found and tried for he shall neither loose lands goods or cattels for the death of any such euill disposed person but shal be fully discharged as if he were acquit thereof 8 To the intent that Trespassors in forrests chases parkes and warrens Killing of an offendor in a Parke warren or forrest may more charily eschew and feare to enter and trespasse in the same by a Statute made an̄ 21. Stat. 11. E. 1. E. 1. it was ordained That if any forester parke-kéeper or warreiner shall find any offendors within his Bailiwicke there wandring and doing hurt which after Huy Crie leuied to kéep the peace and obey the law will not yéeld themselues to the Forrester c. but will flie defend themselues by violence Then though the Forresters Park-kéepers and Warreiners any other comming in their companie to kéep the Kings peace endeauouring to arrest such offendors doe kil any of the same offendors he shal neither suffer death nor sustaine any other trouble or punishment therefore But if any of the said Forresters Parke-keepers or Warriners or any other by reason of contention despite or hatred will lay to any mans charge passing through his Bailiwicke that hee came thither to doe hurt whereas hee did not neither was found wandring or offending and so kill him and thereof be conuicted he shal be punished for his death as he ought to be for the death of an other being in the Kings peace And by this meanes the Forrester doth commit homicide by iustice vpon the offendor because he will not submit himselfe and yeeld to be iustified by the law 9 If the king haue an auncient Chace whereof the Lieutenants M. 15. 16 El. Dyer 327. or Kéepers haue vsed time out of the remēbrance of man as well by night as by day to hunt in the Manor of Dale adioyning to the said Chace such deare as do strate out of the same Chace into the said Manor as in the purlewe of the said chace but yet diuided from the same with hedge and ditch And after the same Manor of Dale doth come vnto the Kings hands and the King doth grant the same Manor to another and his heires and further doth grant vnto the same person frée Warreine in all his demesne lands of the said Manor Vnity of possession in a chace and a manor adioyning hauing free warrein which frée Warreine hath bin before confirmed by diuers auncient Charters with these words viz. Ita quod nullus intret in Warrennam illam ad fugandum sine licentia voluntate of the grauntée of the said Manor In this case notwithstanding the vnitie of the possession of the Chace and the Manor of D. in the king and notwithstanding the Kings grant of the manor and the confirmation of the warreine with the generall words of the Prohibition aforesaid which doe onely extend to the Subiect the kings libertie of the purlewe doth remain vnextinguished And therefore if one of the Kings Kéepers of the said Chace shall come into the said Manor of D. being purliew to fetch in his straied déere it is not lawfull for the Lord of the said manor of D. or for any of his seruants to kill him after huy and crie made to kéep the peace and obey the law and if he doe it is not iustifiable by the foresaid Statute of 21. Ed. 1. for he cannot commit homicide by iustice nor iustifie the killing of him in his Warreine who hath in a sort and to some purpose interest to come into the said ground to fetch forth his straied deere One killing another in combat 10 If in Appell of murder burglarie or other felonie the defendant doe 37 H. 6. 21 plead not guiltie ready to defend it by his body and the Appellant and Appellée doe ioyne in the combat and one of them doe kill another in battell This is Homicide by iustice and not punishable for as the law of the Realme doth allow
his life and safetie is oppressed therewith and dieth Or where two men doe run at Tilt Iust or fight at Barriers together by the Kings commandement and one of them doth kill another in these cases the like the offēces shal be adiudged as homicide by misaduēture P. 11. H. 7 33. But if a mā being in doing of an vnlawful act as casting of stones into a high way where men doe vsually passe or shooting of arrowes into a Market or other place whither men doe vsually resort or fighting at Barriers or running at Tilt or Iustes with others without the kings commandement P. 11. H. 7. 23 whereby a man is slaine in these last specified cases it is felonie at the least viz. manslaughter if it be not murder for the offendor beeing doing of an vnlawfull act by his owne will the law will construe his meaning and will therein by the successe of the act As if two men be fighting together and a third man commeth to part them he is slaine Fitz. Cor. 262. 22. Ass p. 71 by one of those two without any malice prepenced or euill intent in him that slue him this is murder in him that killed him and not Homicide by misaduenture because they both that fought together were doing of an vnlawfull act And if they both that did fight together 2. 3. P. M. Dyer 128. came thither with malice prepenced one intending to kill the other then is it murder in them both The like order in misaduenture as in his owne defence 20 The same order shal be obserued in the pleading verdict forfeiture and pardon of one which killeth another by misaduenture as shal be of him who slayeth another in his owne defence St. 6. Ed. 1. 9 And the before rehearsed Statute of Gloucester shall extend as well to the one as to the other Homicide by murder or manslaughter 21 Homicide by murder is when one man vpon malice prepenced doth kil another feloniously And because it should be certainly knowne to all persons which offences should be adiudged murder by a Statute made at Marlbridge Anno 52. H. 3. it was ordained St. 52. H. 3. 26. That murder from henceforth shall not be iudged before the Kings Iustices What is murder where it is foūd misfortune onely but murder shal be intended vpon them which bee feloniously slaine viz. with a premeditate and malitious mind Pl. com 261 And some doe define murder to be a secret killing of one man by another none being present nor none knowing thereof But if one man kill another vpon malice prepenced the law doth not respect whether he doe kill him secretly or openly or whether he that was slaine be an English man or other countrie man so that he liued vnder the Kings protection Neither doth the law regard who gaue the first blow for though he that was slaine did strike the first blowe yet if he were slaine vpon malice prepenced it shal be adiudged murder in him that killed him What is manslaughter And manslaughter otherwise called Chance medley is when two doe fight together vpon the suddaine Pl. com 261 without any malice precedent and one of them doth kill the other in which case the offendor shall haue his Clergie The name of murder 22 The name of murder is an old and auncient terme and it is the rather continued to make a difference betwéen Homicide committed by Chance medley and Homicide committed by malice prepenced And therefore if a man be indicted of murder Murder more grieuous than felonie a pardon of al felonies wil not excuse discharge him as it appeareth by the Statute of an̄ 13. R. 2. which hath ordained St. 13. R. 2. 1 Stat. 2. S. Pardon 5 That no charter of pardon shal be allowed before any Iustice for murder for the death of a man slaine by a wait assault or malice prepenced Treason or Rape of a woman vnlesse the same murder c. be specified in the same Charter For murder is a more grieuous and hatefull offence in the hearts and eares of men than other felonies be And yet if a Commission be granted to certaine persons to enquire of all felonies they may thereby take indictments of murder Kel fol. 91. though a pardon of all felonies will not auaile him who hath committed murder but that is in respect of the Statute aforesaid St. 1. E. 6. 12 23 By a Statute made Anno 1. Ed. 6. it was ordained Wilfull poysoning That all wilful killing by poysoning of any person or persons that at any time hereafter shall be committed or done shall be adiudged and taken wilfull murder of malice prepenced and that the offendors therein their aydors abettors procurers and councellours shall suffer death and forfeit in euery behalfe as in other cases of wilfull murder of malice prepenced 24 To the end that stabbing and killing men on the sodaine done by many inhumane and wicked persons in the time of their rage drunkennes hidden displeasure or other passion of minde may be from henceforth restrained thorough feare of due punishment to be inflicted on such cruell and bloodie malefactors who heretofore haue béene thereunto imboldened by presuming on the benefite of Clergie St. 1. Iac. 8. Therefore by a Statute made Anno 1. Iac. it was enacted That if any person or persons shall stabbe Stabbing to death wilfull murder or thrust anie person or persons that hath not then a weapon drawen or hath not then first stricken the partie which shall so stabbe or thrust so as the person or persons so stabbed or thrust shall die within the space of sixe moneths then next following although it cannot be prooued that the same was done of malice forethought yet the party so offending and being therof conuicted by verdict of xii men confession or otherwise according to the lawes of this realme shall be excluded from the benefite of his or their Cleargie and suffer death as in case of wilfull murder Prouided alwaies that this Act shall not extend to any person or persons which shall kil any person or persons se defendendo or by misfortune or in any other manner than as is aforesaide nor shall extend to any person or persons that in kéeping and preseruing the peace shall chaunce to commit manslaughter so as the said manslaughter be not committed wittingly willingly and of purpose vnder colour or pretence of kéeping of the peace nor shall extend to any person or persons which in chastising his childe or seruant shall besides his or their intents or purpose chance to commit manslaughter Co. l. 4. 40. 25 If vpon a fray made the Constable with others to assist him Constable or other is slaine in parting of a fray do come to part the fray and to preserue the peace and in doing of his office the Constable or any of his assistants shal be slaine this is wilfull
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
Sorcery whereby any person shall be killed destroyed wasted consumed pyned or lamed in his or her body Lex Athelstani 6. or any part thereof then euery such offendor or offendors their aydors abbettors and counsellors being of any the said offences duely and lawfully conuicted and attainted shall suffer paines of death as a felon or felons and shall loose the priuiledge and benefite of Clergie and Sanctuarie If any person or persons shall take vpon him or them by witchcraft Finding of treasure inchantment charme or sorcerie to tell or declare in what place any treasure of gold or siluer should or might be found or had in the earth or other secret places Or where goods or things lost or stollen should be found or become Declaring where goods lost should be found Prouoking to loue Destroying of any person or cattell Or to the intent to prouoke any person to vnlawfull loue Or whereby any cattell or goods of any person shal be destroyed wasted or impaired or to hurt or destroy any person in his or her bodie although the same be not effected and done Then all and euery such person and persons so offending and beeing thereof lawfully conuicted shall for the said offence suffer imprisonment by the space of one whole yeare without baile or mainprise and once in euery quarter of the said yeare shall in some market towne vpon the market day or at such time as any Faire shal be kept there stand openly vpon the Pillorie by the space of sixe houres and there shall openly confesse his or her error or offence If any person or persons being once conuicted of the same offences as is aforesaid doe eftsoones perpetrate and commit the like offence then euery such offendor being of any the said offences the second time lawfully and duly conuicted and attainted as is aforesaid shall suffer paines of death as a felon or felons and shall loose the benefite and priuiledge of Clergie and Sanctuarie sauing to the wife of such person as shall offend in any thing contrarie to this Act her title of Dower and also to the heire and successor of euery such person his and their title of inheritance succession and other rights as though no such attainder of the auncestor or predecessor had béene made Prouided alwayes That if the offendor in any the cases aforesaid shall happen to bee a Péere of the Realme then his triall therein to bee had by his Péeres as it is vsed in cases of Felony or Treason and not otherwise Hunting with Visors 30 By a Statute made Anno 1. H. 7. St. 1. H. 7. 7 it was ordained That at euery such time as any information shall be made of any vnlawfull hunting by night or with painted faces in Forrest Parke or Warren to any of the Kings Councell or to any Iustice of Peace of the Countie where such hunting shall be of any person suspected thereof It shall bee lawfull to any of the same Councell or Iustice of Peace to whom such information shall bee made to make a Warrant to the Shirife or to any Constable Baylife or other Officer of the same County to arrest and take the same person to haue him before the maker of the same Warrant or any other of the Kings councell or Iustice of Peace of the same Countie And the Counsellor or Iustice before whom such person shall bee brought shall haue power to examine him of the said hunting and of the doers thereof and if he conceale the offence or any offendor it is felony and if he confesse the truth and all that he shall be examined of and knoweth in that behalfe then the offence of hunting by him done shall be against the King but trespas fineable to be assessed at the next generall Sessions by the Iustices there And if any Rescous Rescous or disobedience be made to any person hauing authority to doe execution or iustice by any such warrant by any person which should be arrested so that execution of the same warrant be not had then the same rescous and disobedience shal be felony and the same felony shall be enquired of and determined as other felonies béene Twelue or aboue assembled together to change any law 31 By a Statute made Anno 1. Ma. 1. Eliz. it was ordained St. 1. M. 12 St. 1. El. 16 That if any persons to the number of twelue or aboue being assembled together shall intend goe about practise or put in vre with force of armes vnlawfully and of their owne authority to alter or change any lawes made or established for Religion by authoritie of Parliament which stand in force or any other Lawes or Statutes of this Realme or any of them the same number being commaunded or required by the Shirife of the Shire or by any Iustice of Peace of the same Shire or by the Mayor Shirife Iustices of Peace or Baylifes of any Citie Borough or Towne Corporate where any such assemblies shall be vnlawfully had or made by proclamation in the Quéenes name to retire and repaire to their owne houses and habitations or places from whence they came And they or any of them notwithstanding such proclamation shall remaine and make their abode or continue together by the space of one whole houre after such commaundement or request made by proclamation or after that shall willingly in forcible and riotous manner attempt to doe or put in vre any things aboue specified then as well euery such abode or continuing together as euerie such act or offence that after such commaundement or request by proclamation had or made shall bée attempted to bée done practised or put in vre by any persons being of the number aforesaid shall be adiudged Felonie in all and singular those persons that so shall make their abode and continue together or shall attempt or commit any such act And the offendors therein shall be adiudged Felons and shall suffer onely execution of death as in case of Felony If any persons to the sayd number of twelue or aboue shall intend Practising to destroy parks ponds conduits goe about practise or put in vre in manner and forme aforesayd to ouerthrow cut breake cast downe or digge vp the pales hedges ditches or other inclosure of any Parkes or Parke or other ground inclosed or the bankes of any Fish Pond or Poole or any Conduits for water Conduit heads or Conduit pipes hauing course for water to the intent that the same or any of them from henceforth should remaine open not inclosed or voyd Or vnlawfully to haue common or way in the sayd Parkes or Parke or other grounds or ground inclosed or in any of them or to destroy in manner and forme aforesayd the Déere in any Parkes or Parke or any Warreins or Warrein of Conies or any Doue-houses or any Fish in any Fish ponds or Poole or to pull or cut downe any Houses Barnes Mills or Bayes or to burne any stackes of corne or
dammages In appeale the acquitall of the principall is not the acquitall of the accessorie for if he will recouer dammages he must be tried notwithstanding the acquitall of the principall But some doe thinke that he shall recouer dammages by the acquitall of the principall without being further tried or otherwise it would ensue that the Court should admit an accessorie where there had béene no principall which were inconuenient ⧠Breaking of Prison and Rescous BY the common Law of this Realme if a man had béen imprisoned and broken the prison hée should haue béene hanged for what cause soeuer he had béene imprisoned yea although it had béene but for trespasse Which great enormitie was redressed by the statute of Anno 1. Ed. 2. intituled St. 1. Ed. 2. De frangentibus prisonam the wordes wâ—â—reof be these Touching prisoners breaking of prison our Lord the King doth will and commaund that none which from hencefoorth doe breake prison shall haue iudgement of life and member for the breaking of prison onely except the cause for the which he was taken and imprisoned doth require such iudgement if hée should haue béene conuicted thereof according to the lawe and custome of the Realme though in times past it hath béene otherwise vsed And therefore it is to be considered who is a prisoner and what is breaking of prison Who is a prisoner according to the meaning of the foresaide Statute Euery person who is vnder arrest for felony is a prisoner aswel being out of the Gaole as within So that if hée be but in the Stockes in the stréete or out of the Stockes in the possession of any that hath arrested him 1. Ed. 3. 17. 1. M. Di. 99 and doth make an escape that is a breaking of prison in the prisoner for imprisonment is none other but a restraint of libertie 2 Though the letter of the stat of AnÌ„ 1. Ed. 2. 1. H. 7. 6. 25. Ed. 3. 42 1. Ed. 3. 17. be touching prisoners breaking of prison A stranger breaketh prison yet if a stranger do breake the prison he is within the compasse of this statute for that by the common lawe this was a breaking of prison in a stranger and felonie in him at that time and is felonie also at this time in the prisoner that escapeth by force of such breaking of prison by a stranger although before the said Statute it was not felony in the prisoner Letting a prisoner escape 3 If a Gaoler or any other which kéepeth a prisoner vnder arrest doe let him goe at libertie this is not felonie in the prisoner because it was no breaking of prison in the Gaoler But all the felonie in this case resteth in him who did let the prisoner escape and that is by a voluntary escape and not by breaking of prison which is felony in him that suffered him to escape 2. Ed. 3. 1 4 If by the negligence of the Gaoler or any other which hath the prisoner vnder arrest the prisoner doe escape Negligent escape this is felonie in the prisoner that doth escape for that the prisoner in making of escape did breake the prison but it is not felonie in him out of whose custodie he did escape 5 To breake prison is intended aswell of a Rescous made of a prisoner Rescuing of a prisoner as of breaking of prison 1. H. 7. 6. As if a prisoner be vnder arrest for felony and a stranger will feloniously take him out of the possession of him that hath arrested him this Rescous is a breaking of prison and is felonie as wel in the partie which escapeth as in him that made the Rescous and so was it by the common law Fi. Cor. 333 6 If a stranger disturbe the arresting of a felon Disturbing of arrest that manner of Rescous is not felonie for the letting of a felon escape which is not arrested for felony is not felonie but if the felon had beene taken and arrested and after rescued this had béene felonie 2. Ed. 3. 1. 1. H. 7. 6. 7 If the Sherife returne a Rescous The Sherife returneth a Rescous of a felon taken out of his possession or doe returne an escape that the prisoner escaped from him this wil not serue as an indictment to put the partie to answer thereunto for that it is contrarie to the Statutes of 25. Ed. 3. 28. Ed. 3. 42. Ed. 3. St. 25. E. 3. 4 St. 28. E. 3. 3 St. 42. E. 3. 2. which haue ordained That none shall be imprisoned or put out of his fréehold without an indictment or presentment before Iustices or some matter of Record or by due Proces or by writ originall which the Sherifes returne is not S. Indictments 19. 2. Ed. 3. 1. 8 It is no difference whose prison the offendor doth breake viz. Whos 's the prison broken must be whether it be the Kings prison the Lords of a fraunchise or any other persons for whose soeuer it be the offendor is within the compasse of this statute though it was otherwise before the Statute Britton viz. it was not felonie vnlesse he had broken the Kings prison 9 If one be attached taken for trespasse Attachment for trespasse and he which is attached doth ecape or is rescued by a stranger this is no felonie but trespas for that the Statute saith St. 1. E. 2. Except the cause for the which he is taken and imprisoned doth require such iudgement But yet the fine shal be according to the qualitie of the person to whom the rescous is made according to the time and place wheÌ„ where it is done 22. Ed. 3. 13 A Iustice sitting in iudgement arresteth an offendor And therfore if a Iustice assigned shall arrest a man that maketh a fraie before him and a stranger doth rescue him by force whereof the prisoner escapeth in this case as wel the prisoner as he that made the rescous shal be disherited and shal suffer perpetuall imprisonment for that the attachment of such a Iustice was the attachment of the King himselfe in the iudgement of the law But if such a Iustice make an arrest when he is out of his place then such an arrest and escape is but fineable nor of any other effect but as if the Sherife or some other officer had made the arrest 1. H. 7. 6. 10 If a maÌ„ be rescued at the gallows or as he is in going to executioÌ„ this is within the compasse of this Statute Rescous after iudgement for the words of the Statute shal be inteÌ„ded aswell in the preter tence as in the present tence viz. as well of iudgemeÌ„t giuen as of iudgement to be giuen for the cause for the which he was taken and imprisoned did require such iudgement The imprisonment and not the attainder respected 11 It is not material whether the prisoner which did escape was 1. Ed. 3.17 or
ought not to let him goe but the towne where the Constable dwelleth shal be charged with the kéeping of him vntill the next Gaole deliuerie Prisoner by matter of record 24 The law hath two seuerall respects to two sorts of prisoners whereof the one is prisoner by matter of Record and the other by matter in déed A prisoner by matter of Record is when one that is present in Court is committed to prison by the Court. In this case if the kéeper of the prison hath not this prisoner alwaies readie when the Court will send for him Fi. Cor. 466 or else doe shewe a reasonable cause why he cannot haue him the Court will iudge this an escape by the Kéeper without further inquitie But if the Kéeper of the prison bee in this case examined by the court of his prisoner 39 H. 6. 33. and he will say nothing the Court will adiudge it a voluntarie escape Fi. Cor. 352 25 If it be found in the Coroners Roll that one did flie to the Church Escape by a towne and no abiuration is found in the same Roll in this case the court will adiudge an escape vpon the whole towne without further presentment A man killed beeing in carrying to the Gaole And if a man be apprehended for felonie in a towne Fi. Cor. 346 and carried towards the Gaole by certain of the same towne and if he doe resist them whereupon they doe kill him in this case it shal be adiudged an escape vpon that town for in that hee was not safely carried to the Gaole attainted of felonie the king doth loose his escheats 26 When the Deciners doe present that a felon is apprehended for felony Escape by the Sherife and deliuered to the Sherife it will be adiudged an escape if they doe not declare to which Sherife he is deliuered and name him so that his rolls may bée searched and seene whether the prisoner came within the charge of the Sherife Fi. Cor. 345. and if it be not found how he came out of the Sherifs ward according to the law of the Realme an escape shal be adiudged vpon the Sherife 39. H. 6. 33. 27 It is vsed in the Kings Bench A Coroner sent to the Marshalsey to enquire c. to send a Coroner once or twice euery Terme to the Marshalsey to see all the prisoners that be committed to the marshall by matter of Record and if any of them be wanting cannot be found there to set his name in a booke and to informe the Iustices thereof and then the Court will examine the Marshall thereof and if he cannot sufficiently excuse himselfe the Court will record escapes vpon him for euery of them 21. As p. 12. 28 And touching those which bee prisoners of Record Confessing auoiding of an escape the Kéeper of the prison cannot trauerse the escape but confesse and auoyd it as in alleadging that the prison was burnt or broken by the Kings enemies or by saying that he which is supposed to be escaped is not the same prisoner which was committed to him 29 Prisoner by matter in fait is where one is prisoner by arrest onely Prisoner by matter in fait viz. by arrest whether it be by the Sherife the Constable or any other and he doth escape there the Escape shall bee presented before he shall aunswer vnto it And this presentment ought to be before the Iustices of the Kings Bench the Iustices in Eire or some other Iustices that haue authoritie to enquire thereof Before whom an escape shall be presented As it appeareth by the Statute of Westminster 1. the words whereof be these It is ordained St. 3. E. 1. 4. that nothing shall be demanded nor taken nor leuied by the sherife nor by any other for the escape of any theefe or felon vntill it shal be adiudged by the Iustices in Eire And he that shall doe otherwise shall restore to him that paid it so much as he hath receiued and to the King as much And likewise by the Statute of 31. Ed. 3. St. 31. E. 3. 14. it is prouided That the Escape of felons and Clerkes conuict shall bee adiudged by the Iustices and by their viewe leuied And though the foresaid Statute of Westminster the first doth not make mention of any but of Iustices in Eire 21 As p. 12. 27. As p. 1. yet it doth also extend to the Iustices of the Kings Bench because the Kings Bench is in Eire and higher then an Eire for if the Iustices in Eire doe sit in a Countie and the Iustices of the Kings Bench come thither the Eire shall cease Iu. of peace and Coroner shall enquire of escapes 30 And by the Statute of 1. R. 3. St. 1. R. 3. 3. Iustices of Peace may enquire of all manner of Escapes of euery person arrested and imprisoned for felonie And by the Statute of 3. H. 7. St. 3. H. 7. 1. They may enquire of the escape of any that hath committed murder and make certificat thereof into the Kings Bench. And also by the said Statute of 3. H. 7. the Coroner vpon the viewe of the dead body may enquire of the escape of the murderer for if he doe commit the murder in the day and escape the towne shal be amerced And also the Coroner shall deliuer his Inquisition therof to the Iustices at the next Gaole deliuerie of the same Countie Trauerse to a presentment of an escape 31 Vpon an escape for the which no fine is to be paied Fi. Cor. 291 328. 346. but an Amerciament he or they which be charged therewith shal haue no Trauerse to the presentment thereof Quia de minimis non curat lex Escapes inquirable in Leetes and Turnes 32 Although Escapes of felons be at this day inquirable in Léetes and Sherifes Turnes yet it shall not be leuied vntill it be adiudged before the Iustices for that should bee contrarie to the foresaid Statute of Westminster 1. The penalties of escapes 33 The penaltie of him which doth voluntarily suffer one arrested for felonie to escape is the forfeiture of all that he hath because it is felonie The penaltie of him which doth suffer a negligent escape of a felon is to pay a fine The penaltie for the escape of him which was neuer arrested is but an amerciament And if any doe suffer him that is attainted of felonie negligently to escape he shall pay to the King for a fine an hundred pounds And if the partie escaping were but indicted and not attainted then he shall paie to the King for a fine a hundred shillings If one which is not indicted nor taken with the manner nor apprehended at the suit of the partie 42. As p. 5. but onely taken by a straunger for susption of felonie do escape there shal no penaltie nor punishment follow thereof But yet if after the same escape he
but if it be during the day light though the sunne be set the countrie shal be charged therewith for whosoeuer doth trauel during the day light is in the guard and protection of the lawe and if any doe iourney by night he doth it at his owne perill St. 13. E. 1. 4 3 For the more suretie of the countrie and spéedier defecting of offendors warding of walled towns by the said Statute of Winchester it was enacted That in great townes beeing walled the gates shal be shut from the sunne setting vntill the sunne rising and no man shall lodge in the Suburbs or any place out of the town froÌ„ nine of the clocke vntil day vnlesse his Host will answer for him And the bailifs of townes euery weeke or at the least euery fifteenth day shall mak enquirie of all persons beeing lodged in the Suburbes or in forraine places of the townes and if they find any that hath receiued any suspitious persons not kéeping the Kings peace the baylifs shall execute right and iustice therein St. 13. E. 1â—4 4 And by the said statute of Winchester it was moreouer ordained That in all townes watch shall be kept as in times past it hath beene vsed That is to say When the night watch shall begin and end from the feast of the Ascension vntill Michaelmas in euery citie sixe men shall watch at euery gate in euery Borough twelue men in euery town sixe or foure according to the number of the inhabitants of the towne and they shall watch the towne at night from the sunne setting to the sunne rising And if any stranger doe passe by them he shall be arrested vntill the morning and if no suspition be found he shall goe quit and if they find cause of suspition they shall forthwith deliuer him to the Shirife and the Shirife shall receiue him without hurt vntill he be acquited in due manner And if he will not obey the arrest Resisting of arrest they shall leuie Huy and Cry vpon him and such as kéepe the Towne shall follow with Huy and Cry with all the Towne and Townes néere and from Towne to Towne vntill he be taken and deliuered to the Shirife as is beforesaid and for the arrestments of such strangers none shall be punished And by the Statute of Anno 5. H. 4. St. 5. H. 4. 3 Iustices of Peace haue power to make inquisition in their Sessions from time to time and to punish them which be found in default after the tenour of the foresaid statute of Winchester Enlarging of high waies 5 And for the more spéedie apprehension of felons and that they may haue the lesse meanes to escape when they haue robbed or otherwise offended St. 13. E. 1. 5. by the said statute of Winchester it is further established That the highwaies leading from one Market towne to another shal be enlarged there where any wood hedges or ditches be so that there shal be no ditch wood or bush where he that doth lewdly may escape within two hundred foot of the high way on the one side and two hundred foot on the other but this Statute extendeth not to Ashes or great Trees And if any robberies be done by default of breaking downe ditches vnderwood and bushes the Lord shall answer therefore and if it be a murder the Lord shal be punished at the Kings pleasure And if the Lord be not able to cut downe the vnderwood the Countrie shall helpe him And within the kings demesne woods in forrests and without the waies shal be enlarged as before is said And if any Parke be neere vnto the high way the Lord thereof shall diminish it by the space of two hundred foot from the high way or els make such a wall ditch or hedge that offendors cannot goe forward or backeward to any hurt 6 Because it is very hard and extreame to many persons for that by the foresaid Statutes of 13. Ed. 1. 28. E. 3. 11. they do remaine charged with the penalties therein contained notwithstanding their vnabilitie to satisfie the same and though they do as much as in reason might be required in pursuing such malefactors offendors whereby both large scope of negligence is giuen to the inhabitants resiants in other hundreds counties not to prosecute the huy crie made followed brought vnto them by reason they are not chargeable for any portion of the goods robbed nor with any dammages in that behalfe giuen also great incouragement imboldening is likewise giuen to the offendors to commit daily more felonies and robberies seeing it is in a maner impossible for the inhabitants and resiants of the said hundred and franchise wherein the robberie is committed to apprehend them without the ayde of other hundreds and counties adioyning And for that also the partie robbed hauing remedie by the foresaid statutes for the recouering of his goods robbed and dammages against the Hundred wherein the robberie was committed is many times negligent and carelesse in prosecuting and pursuing the saide malefactors and offendors The Hundred charged wher fresh sute shall cease For the qualifying of all which extreamities by a statute made Anno 27. Eliz. St. 27. El. 13 it was ordained That the inhabitants and resiants of euery or any such Hundred with the franchises within the precinct thereof wherein negligence fault or defect of pursute and fresh sute after huy and crie made shall happen to be shall answer and satisfie the one moitie or halfe of all and euery summe and summes of money and dammages as shall by force and vertue of the saide Statutes viz. of 13. Ed. 1. and 28. Ed. 3. or either of them be recouered or had against or of the same Hundred with the franchises therein in which any robberie or felonie shall at any time heereafter be committed or done And the same moitie shall and may at any time héereafter be recouered by action of debt bill plaint or information in any of the Quéenes Courts of Record at Westminster by and in the name of the Clerke of the Peace for the time being of The Clerke of the Peace shall prosecute the sute or in euery such Countie within this Realme where any such robberie and recouerie by the party or parties robbed shal be without naming the Christian name or the surname of the saide Clerke of the Peace Which moitie so recouered shall be to the only vse and behoofe of the inhabitants of the said Hundred where any such robberie or felonie shall be committed or done St. 27. El. 13 7 If any Clerke of the Peace of or in any Countie within this Realme shall at any time héereafter commence or preferre any such sute action or information and shall after the same so sued commenced or preferred The Clerke of the Peace doth die or is remooued happen to die or to be remooued out of his office before recouerie and execution had yet no such
countie where the rauishment was committed 3. H. 7. 12. And though shee doe declare of the taking of her in another countie yet it shal be tried onely in the countie where the appeale is brought for the declaring of taking of her in another countie was but surplusage and néeded not to haue béene inserted which doth not cause her count to abate And in this case the woman appellant shall recouer nothing but the defendants death for the felonie which she shall obtaine in respect of his rauishment of her in the countie wherunto he forcibly carried her wherein only the felonie was committed Appeale of Robberie 39 By the same reason if a man doe take another by force in one countie 3. H. 7. 12. and then carrie him into another countie and there robbe him or kill him an appeale of felonie shal be commenced onely in the countie where the robberie or murder was done for the taking and carrying him away out of the first countie was but trespasse and there was no felonie committed vntill the robberie or murder was committed Threatning in one county to bring money into another 40 If one man doe threaten another in one countie that he will kill him if he doe not bring him a summe of money into another countie such a day 44. E. 3. 14 4. H. 4. 3. In this case if he that is threatened doe in respect of that menace carrie and pay the said summe of money to him that threatened him according to his promise in the said other countie this is robberie though the partie néeded not to haue paid the said money according to his promise for that his said promise was by menace and not voluntarie nor vpon cause And there is reason that the appeale of robberie shal be commenced in the countie where the money was paid and not in the countie where the menace was made for the effect and successe of the matter maketh it felonie which is the paiment of the money and not the first cause which was the threatening Goods robbed caried into diuers coūties 41 If a felon commit a robberie in one countie 7. H. 7. 44 4. H. 7. 5. and then carrie the goods stolen into diuers other counties hee that is robbed may haue his appeale of felonie in which of those Counties he will for the felon committeth felonie in euerie of the Counties Co. li. 7. 2. 26. As p. 32. whither he carrieth any of the goods And in which of those Counties the partie robbed doth commence his Appeale of Felony there it shal be tried for the propertie of those goods was alwayes in the first and right owner of them But he that is robbed may commence his Appeale of Robberie onely in that Countie where hee was robbed for there is no robberie done but in that Countie onely But if a man being in one Countie doe procure another man to commit a robberie in another Countie 29. H 8. Dyer 40 which he doth accordingly in this case the partie robbed shall haue his Appeale of Robberie against the said procurer as accessorie to this felonie in the Countie where the procurement was and not where the robberie was committed for there was his felonie committed where he did persuade and procure the robberie to be done 42 He that may pursue an Appeale is at his choyce whether he will haue it by writ Britton or by bill If he pursue it by bill Before Whōe an appeale shal be broght then he must find to the Sherife in the full Countie two sufficient pledges being of the Countie where the felonie was committed and distrainable within the sayd Countie that hee shall prosecute his Appeale according to the law of the Realme and he shal be thereunto receiued And then the Coroner shall enter his Appeale and the names of his pledges 22. As p. 97. and after the Baily of the place where the felonie was committed shall be commaunded that he shall bring the bodies of those that be appealed to the next Countie Court to answer to the plaintife And if the Baily doe answer at the second Countie Court that he cannot find them then it shall bee ordained that they which be principall Appellees of the fact shall bée solemnly commaunded to yéeld to the Kings peace and to appeare and stand to the answer of such a felonie whereof they be appealed And so they shall be demanded from Countie to Countie vntill they do appeare or bee Outlawed And yet because the Statute of Magna Charta hath ordayned That no Sherife Constable St. 9. H. 3. 17 Escheator Coroner or other Bailife of the Kings shall hold plea of the Crowne It is agréed for law that vpon an Appeale commenced before the Sherife and the Coroners although they may award proces against the Appellées vntil the Exigent yet they cannot award the Exigent against the Appellée if he do not appear neither if he do appear they can cause him to answer but onely they may commit him to prison and that by force of the sayd statute of Magna Charta 43 When an appeale is commenced before the Sherife and the Coroners in the countie it may be remooued into the Kings bench by a Certiorari Remoouing an appeale out of the countie which must be awarded out of the Chauncerie or out of the Kings bench and is to be directed to the Sherife and the Coroners which prooueth that an appeale is begunne and of Record as well before the Sherife as before the Coroners according to the Statute of West St. 3. E. 1. 10 1. which hath ordained That the Coroners shall lawfully attach and represent the pleas of the Crowne and that the Sherife shall haue counter-rolles with the Coroners as well of appeals as of Enquests of Attachments or other things that doe belong vnto this office And therefore a Certiorari to remooue an appeale directed to the sherife onely is voyd 4. H. 6. 15 and an appeale of murder may be commenced as well before the Sherife as before the Coroners as it is prooued by these words of the Statute of 3. H. 7. St. 3. H. 7. 1 viz. The wife or heire of the person slaine or murdered as case shal require may commence their appeale in proper person at any time within the yeare after the felonie done before the Shirife and Coroners of the Countie where the said felonie and murder was done or before the King in his Bench or Iustices of Gaole deliuerie 44 An appeale by Bill may be commenced before Iustices of Gaole deliuerie An appeale before Iustices of Gaole deliuerie but then the Appellée at the time of the Appeale begun against him 13. H. 4. 10. 9. H. 4. 2. must be prisoner in the same Gaole whereof those Iustices are to make deliuerie or else such an appeale is not to be receiued Or otherwise one of them at the least against whom and others the
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
supposed is and was conuersant within the countie whereof the indictment or appeale maketh mention but the like proces shal be made against such indicted or appealed person as hath béene vsed 62 And because after the making of the sayd Statute of Anno 8. H. 6. some intending to defraud the sayd Statute did sue to remooue such appeales and indictments out of the hands of the Iustices or Commissioners aforesayd into the Kings bench and elsewhere by Certiorari or otherwise vnknowne to the partie so indicted and therupon sued the proces vsed at the common law before the making of the said Statute in the Kings Bench and elsewhere after the remoouing therof to the great impouerishment of diuers the kings subiects Therefore by the Statute made Anno 10. H. 6. St. 10. H. 6. 6 it was enacted Proces vpon an indictment or appeale remoued into the K. bench That if any such indictments taken before any Iustices of peace or any other hauing power to take such indictments or appeales or other Iustices or Commissioners in any county franchise or libertie of England shal be remoued into the Kings Bench or elsewhere by Certiorari or otherwise then after such remoouing before any Exigent awarded vpoÌ„ any such indictment or appeal in form aforesaid taken immediatly after the first writ of Capias vpon euery such indictment or appeale awarded and returned another writ of Capias shall bee awarded directed to the Sherife of the countie wherof he that is indicted or appealed is or was supposed to be conuersant by the same indictment or appeale returnable in the K. Bench at a certaine day contayning the space of thrée moneths from the date of the said last writ of Capias according to the maner and forme that the I. of peace and others ought to haue done before such remouing And if any Exigent be awarded vpon any such indictment or appeale after such remouing against the forme aforesaid or any outlawrie thereupon pronounced as wel the same Exigent as the outlawrie and euery of them shal be void In the Appeale he must be supposed to be of a forrein County 63 The foresaid stat of 8. H. 6. doth not take place St. 8. H. 5. 10. but where by the Appeal or by the Indictment it is precisely supposed that the defendant was dwelling in a forrein county for if he be supposed to be dwelling there by an Alià s dictê° it is out of the compasse of the stat 1. E. 4. 1. As in an appeal or indictment in the county of Middlesex against A.B. in comitatu tuo yeoman alias dictum A.B. de C. in comitatu Sussex yeoman Because that which is supposed by the Alià s dictê° is not trauersable nor materiall And likewise it is in an appeale or indictment against I. of S. in comitatu H. nuper de L. in comitatu K. nuper de R. in comÌ„ T. An appellée dwelling in no place certaine 64 If a man be appealed to be dwelling in no place certaine the day of the Appeale commenced but in this maner Fitz. Proces 192. viz. nuper de S. in comitatÌ„ L. and nuper de B. in comitÌ„ T. then proces shal be awarded into all the counties whereof he is so supposed to be of late dwelling Proces into a County Palantine 65 The foresaid stat of 8. H. 6. hath ordained That after the first Capias St. 8. H. 6. 10 another Capias shal be awarded to the Sherife of the county whereof he which is so indicted is or was supposed to be dwelling by the same indictment And therefore if an appeale or indictment be exhibited against one in the countie of M. naming him of D. in the county of Chester or of some other place which is a countie Palantine In this case no proces can be awarded vpon this Stat. which may be directed to the Sherife according to the words of the Statute But proces shal be awarded vpon this statute to the prince or his lieutenant 19. H. 6. 2 31. H. 6. 11. for it is in like mischiefe and the statute is generall in all the Realme which doth bind as well those which be of a Countie Palantine as others But if they of the Countie Palantine will not serue and returne the writ directed to them vpon this statute then without further delay the Exigent shall be awarded otherwise the party should be infinitly delaied Proces against principal accessory 66 The foresaid Proces specified in the before rehearsed stat of 8. H. 6. shal extend as well to accessories as to principals sauing that the Exigent as to the accessories shall be staied vntill the principals be outlawed And that by the Statute of West 1. the words whereof be these St. 3. E. 1. 14 Because men haue vsed in some counties to outlaw such persons as be appealed of commandement force aide or escape within the same terme that they do outlaw him which is appealed of the fact it is ordained that none shal be outlawed for an appeale of commandement force ayd or receit vntill he that is appealed of the déed be attainted so that one law shal be thereof through the whole Realme But the appellant shall not let to attach his appeale at the next countie against them as well as against the appellées of the déed But the Exigent against the Accessorie shal stay vntill the appellée of the déed be attainted by outlawrie or otherwise And Britton Britton doth affirme That as soone as the principals be outlawed the Exigent shal be awarded against the accessories St. 3. E. 1. 14 67 The before rehearsed statute of West 1. séemeth onely to extend to Appeales commenced by bill The stat of W. 1. exteÌ„deth onely to Appeals commenced by bil for in an Appeale commenced by writ it appeareth not vntill the declaration made thereupon that there bée any accessories in the Appeale but for any thing contained in the writ all doe appeare to be principals 43. Ed. 3. 17. and for that cause the Exigent is awarded against them all at one time And therefore the plaintife must be aduised how he doth pray the Exigent and against whom for if he do pray the Exigent against them all he is therby concluded after to count against any of them as accessories for the law intendeth that he must take knowledge which were accessories and which not And therefore in that case he should haue staid the demaunding of the Exigent against them vntill the principals had béene attainted And that is the difference betwéene the principals and the accessories as touching the time of the awarding of the Exigent 68 If an Appeale be brought against diuers and one doth appeare plead In Appeale one doth appeare and another makes default yet proces shall be continued against the residue But if hee which appeareth doth plead in abatement of the Appeale or matter in barre which proueth that the Appeale
plead that the plaintife is outlawed 17. Ass p. 26 11. Ass p. 27 18. E. 3. 35 Fi. Cor. 3 or is attainted of Treason or Felony or otherwise is disabled to maintaine an appeale as if a woman doe bring an appeale of the death of her husband and the defendant doth plead that she and her said husband were neuer accoupled in lawfull marriage or that she hath married another husband Or that the appeale was not cōmenced within the yeare day after the offence committed Or that the appellant hath an elder brother liuing to whom the appeale is giuen Fit cor 384 387. not to the plaintife And all those matters which shal be a barre to the plaintife to bring the appeale shall also be a barre to the K. to take any aduātage against the appellée vpō the same appeal for in all these cases it may appeare that the appeale was cōmenced without cause grounded vpon false insufficient matter And the king shall be in no better condition than the appellant for the defendant is arraigned vpon the declaration of the appellant and yet it is otherwise where the Appeale was at the first grounded vpon sufficient and true matter But in all the cases aforesaid though the king can take no aduantage of the Appeale against the defendant yet he may compel him to answer to an indictment of the same felonie for that by these pleas the defendant is not discharged of the felonie though he be discharged of the Appeale S. Approuers 15. 17. 18. 19. No appeale of Treason 97 If an act which was murder felony or other offence by the cōmon law be after made treason by stat then one doth offend in the same no Appeal wil lye against him therefore for that no Appeale will lye of High or Petit Treason And therefore whereas wilfull poysoning was wilfull murder by the common law and after by the stat of 22. H. 8. 9. the same was made high treason and ordained that the offendor therein should be boyled to death which stat was sithence repealed by the stat of 1. Ed. 6. 12. 1. M. yet during the said stat of 22. H. 8. in force the sonne and heire of a man poysoned brought an appeale against a woman for poysoning her husband and because the offence was then high Treason M. 33. H. 8. Dyer 50. and no appeale will lye of Treason the appeale was adiudged not maintanable And yet by the ancient lawes of this realme as Bracton affirmeth the accusor might haue pursued an appeale of high Treason against the defendant or party accused Bracton de coron̄ c. 3 and the defendant might haue thereunto pleaded not guilty and waged battell with the accusor But that Law is sithence altered ⧠Indictments What an Indictment is 1 AN Indictment of Treason Felony Trespas or other offence is an inquisition taken and made by twelue men at the least thereunto sworne whereby they doe find and present that such a person of such a name and sirname dwelling in such a place of such a County and of such a degrée hath committed such a Treason Murther Rape Burglarie Robberie Felony Trespas or other offence at such a place vpon such a day and in such a manner against the Kings peace his Crowne and Dignitie and contrary to the Lawes of this realme and so it is an accusation by the Iury of the offendor and an information of the Court from whence they receiue their charge of his offence and of all such necessary circumstances thereof and in such certaintie that thereupon the same Court may procéed to the triall or arraignement of the party accused if he be present or otherwise may award Proces against him to appeare and to make answere thereunto if he be absent And because this Indictment and accusation doth sometime concerne the life or member of man sometime his liberty sometime his fame and credite sometime his Lands and Tenements and some other time his Goods Cattels Therefore the Law hath a speciall regard that the procéedings therein may be effected with all sinceritie and vpright dealing and doth carry a vigilant and watchfull eye not onely vpon the Iurors which are returned and sworne in those Enquests that they may be men of integritie sufficiencie and indifferencie but also vpon Shirifes and Baylifes of Liberties who haue authoritie to returne the same Iurors for she hath prouided by seuerall Statutes That they shall take no Indictments by Commissions procured at their owne sute but in their Turnes That they shall hold their Turnes St. 28. E. 3. 9 St. 31. E. 3. 14 St. 13. E. 1. 13 St. 1. E. 3. 16 and take Indictments but in conuenient and vsuall times That they shall take Indictments by twelue men at the least and then by Roll indented That they shal take their Indictments by men of good name credit and sufficient of estate St. 1. R. 3. 4 St. 1. E. 4 3. That they shall bring their Indictments and Presentments found and made in their Turnes to the Iustices of Peace of the same Countie that they may award Proces against those that be indicted and set fines vpon them That Iurors impanelled to make inquiries St. 11. H. 4. 9 shall be lawfully returned by shirifes or baylifes of Franchises without the denomination of any other person That Panels returned by the Shirife to make inquiries St. 3. H. 8. 12 St. 3. H. 7. 1 may be reformed by the Iustices and that one Enquest may be impanelled and charged to inquire of concealements of offences made by another Enquest So that the Law hath prouided that Indictments may be found by men of worth and vpon iust causes And as touching Commissions because in times past Shirifes of diuers Counties by vertue of Commissions generall Writs graunted vnto them at their owne sute for their priuat gaine did take diuers Enquests to indict people at their owne pleasures Commissions to shirifes to take indictments and then tooke fines and ransomes of them to their owne vses and after set at liberty the parties and neuer brought the same persons so indicted before the Kings Iustices to be deliuered there according to the forme of Law It was therefore by a Statute made Anno 28. Ed. 3. St. 28. E. 3. 9 ordained That all such Commissions Writs should be from thenceforth repealed and that none such should be at any time after graunted By force of which Statute the Shirife is restrained to make any inquirie by Writ or Commission The shirife may inquire of Felonies But yet by vertue of his office he may at this day make inquirie in his Turne of Felonies obseruing such orders as by the statutes hereafter limitted be expressed St. 9. H. 3. 36 2 Whereas by the statute of Magna Charta it was ordayned That no Shirife or his Baylife shall hold his Turne by Hundreds but twice in the yeare in
a statute made Anno 1. Ed. 4. it was ordained That vpon all Indictments and Presentments which shall bée taken before any of the Shirifes of Counties for the time béeing their Vndershirifes Clerkes Baylifes or Ministers at their Turnes or Law-daies they nor any of them shall haue power or authority to arrest attach or put in prison or to leuy any fines or amerciaments of any person or persons so indicted or presented by reason or colour of any such Indictment or Presentment taken before them or any of them or to leuy or take of any such person or persons so indicted or presented any fine or ransome But the said Shirifes vndershirifes Baylifes or Ministers shall bring present and deliuer all such Indictments and Presentments taken before them or any of them in their Turnes or Law-daies to the Iustices of the Peace Indictments taken in the shirifes Turnt shal be deliuered to the Iu. of peace at their next Session of the Peace which shal be holden in the County or Counties where such indictments and presentments shal be taken And if any of the said Shirifes Vndershirifes Clerkes Baylifes or Ministers doe not bring deliuer or present all such indictments or presentments so taken before them and euery of them in their Turnes or Law-daies as is aforesaid to such Sessions of the peace before the said Iustices then the said Shirifes Vndershirifes Clerkes Baylifes and their Ministers and euery of them which shall faile of the bringing deliuering or presenting of such Indictments or Presentments shal forfeit to the king forty pounds so often as they or any of them shall doe the contrarie And the said Iustices of peace shal haue power and authority to award proces vpon such Indictments and Presentments as the Law doth require Proces vpon Indictments awarded by I. of peace and in such like manner as if the said Indictments and Presentments had bin taken before the said Iustices of Peace in the same County or Counties and also to arraigne and deliuer all person and persons so indicted and presented before the said Shirifes Vndershirife their Clerkes Baylifes or Ministers or any of them in their Turnes or Lawdaies and to set such fine vpon euery person or persons indicted or presented of Trespas as it shall séeme good to their discretions And the Estreats of the same fines and amerciaments shall be inrolled and by Indenture deliuered to the said Shirifes Vndershirifs Clerks or Ministers or to some of them to the vse and profit of him which was shirife of the County at the time of the taking of such indictments or presentments And if any of the said Shirifes Vndershirifes Clerkes Bailifes or ministers shall cause to be arrested attached or put in prison or shall cause to be raised or taken any fine or ransome or leuy any amerciament of any person or persons so indicted or presented by reason or colour of any such indictment or presentment before him taken at his foresaid Turne or Law-day before they haue proces from the said Iustices of Peace or Estreats deliuered out of the said indictments or presentments so brought deliuered or presented vnto them then the shirifes which doe so shall forfeit an hundred pounds wherof the one moitie shal be imployed towards the expences of the kings house and the other to the party or parties that shal be endaÌ„maged And he or they shal haue an action of Debt at the common law and like proces as is vsed in an action of Debt at the common law wherein the defendants shal not be essoined wage their law Indictments in London nor haue any protection But this Ordinance shall not extend or be preiudiciall to the shirifes of the city of London touching indictments or presentments to be taken before them in the said city Neither shall this ordinance extend or be preiudiciall to any person or persons that haue graunt of any fines or other amerciaments by any letters patents of the king or of any of his progenitors or predecessors bearing date before the x. day of December next after the beginning of this Parliament being An. Dom. 1461. B This statute doth giue authority to Iustices of peace to award proces vpon all indictments taken in the shirifes Turne when they be brought and deliuered vnto them But yet it is alwaies intended That those Indictments shal be lawfull The shirife inquiring of things not inâ—uirable in 〈◊〉 Turne and containe matter whereof the Shirife hath iurisdiction in his Turne and power to make inquirie For if the Shirife in his Turne will make inquiry of the statute of Liueries 4. E. 4. 31. 8. E. 4. 5. or indict one who did feloniously rauish a woman or such other matters which be not inquirable in the shirifes Turne although he wil bring the indictments before the Iu. of peace and deliuer them according to the foresaid stat of 1. Ed. 4. yet they ought not to award proces vpon them for they were taken coram non iudice and so void 7 And for that Enquests were sometimes taken without being duly returned by the shirife of such persons as were outlawed before Iustices of Record and of some such as were fled to sanctuary for Felony or Treason to haue refuge by whom sometimes not only offendors were indicted but also seueral of the kings liege people not guilty by the conspiracie abbetment and false practise of others for their owne speciall aduantage and priuat gaine for the auoiding whereof there was a statute made Anno 11. H. 4. which doth enact St. 11. H. 4. 9 That no indictment shal be made by any such persons but by enquests of the kings liege people as it hath bin vsed in the time of the kings progenitors duly returned by shirifes or bailifes of Franchises without any maner of denomination before made to the said shirife or bailifes of Franchises by any person of the names of those who shal be impanelled by him Iurors in indictments shal be returned by the shirife without denomination vnlesse it be by the officers of the said shirifes or bailifes of Franchises knowne or sworne thereunto and other ministers to whom it appertaineth by the law of England to make the same And if any indictment be made in any point to the contrary the same shal be void reuoked and of no force According to this statute some haue béen discharged of their Indictments B. because certaine of the Indictors were before that outlawed of Felony This statute of Anno 11. H. 4. is altered by the next statute of Anno 3. H. 8. for so much onely as doth concerne denomination to be made by the Iustices 11. H. 4. 40. St. 3. H. 8. 12. for the reformation of Panels returned before them by the Shirifes when the said Iustices will haue the same Panels reformed But for all the residue it continueth in force 8 The whole authority of returning of Enquests to make Indictments without the denomination of
any person before made béeing by force of the foresaid statute of 11. H. 4. in shirifes and bailifes of Franchises seuerall great extortions and oppressions were done in diuers Counties of this Realme by subtilty and vntrue demeanor of shirifes and their ministers to many persons by making and returning at euery Sessions holden within the said Counties for the body of the shire names of such persons as for the singular gaine of the said shirifes and bailifes would be wilfully forsworne by the sinister labour of the said shirifes and their ministers By reason whereof by their couin and falsehood many true and substantiall persons were diuers times wrongfully indicted of Murthers Felonies and other misbehauiours to the vtter losse of their liues goods and lands and sometime also by the labor of the said shirifs great Felonies and Murthers were concealed and not presented by the said persons partially returned by the same shirifs or their ministers to the intent to compell the offendors to make fines and giue rewards to the said Shirifes and their ministers For the preuention of which enormities by a stat made Anno 3. H. 8. it was established St. 3. H. 8. 12 That all panels to be returned which bée not at the suit of any party Panels for indictments reformed by the Iustices that shall be made and put in by euery shirife and their ministers before any I. of Gaole deliuery or I. of Peace whereof one to be of the Quorum in their open Sessions to inquire for the king shal be reformed by putting to and taking out of the names of the persons which so be impanelled by euery shirife and their ministers by the discretion of the same Iustices before whom such panels shall be returned And the same Iustice and Iustices shall commaund euery shirife and their ministers in his absence to put other persons in the same panels by their discretions And the same panels so reformed by the said Iustices be good and lawfull And if any shirife or any of their ministers at any time do not returne the same panels so reformed then euery such shirife or minister so offending for euery such offence shall forfeit xx l. the one halfe to the king and the other to him or them that will sue for the same by action of Debt at the common law or Bill c. wherin no W.E. or P. shal be allowed and the kings pardon shall be no barre against the party or parties that shall sue the same 9 It is to be thought that by force of the statutes before rehearsed sufficient honest and indifferent Iurors were returned by the shirifes of Counties or that the Panels by them returned were reformed by the Iustices so that if any defect were committed in Indictments or in concealing of offences or offendors then the same was in the Iury which were charged for the body of the Shire to make inquirie for the searching forth of the truth whereof and for the punishment of the said offendors according to their demerites by a statute made Anno 3. H. 7. it was ordained St. 3. H. 7. 1 That the Iustices of peace of euery Shire of this Realme for the time being may doe to take by their discretion an enquest Enquest to inquire of concealments whereof euery man shall haue Landes and Tenements to the yearely value of forty shillings at the least to inquire of the concealements of other Enquests taken before them and before other of such matters and offences as are to bée inquired and presented before Iustices of Peace whereof complaint shall be made by Bill or Bils as well within Franchise as without and if any such concealement be found of any Enquest had or made within the yeare after the same concealement euery person of the same Enquest shall bée amerced for the same concealements by the discretion of the same Iustices of Peace the said amerciaments to bée assessed in plene Sessions 10 For as much as seuerall persons vpon great grounds of vehement suspitions as well of high Treasons petit Treasons and misprision of Treason as of Murthers were many times sent for from diuers Shires and places of this Realme and other the Kings Dominions to the Kings great charges to be examined before the Kings Councell vpon their offences to the intent that conuiction or declaration of such persons should spéedily ensue as the merits of their cases should require And albeit that after great trauaile taken in the examination of such persons it appeared to the said Councell by confession witnesse or vehement suspect that such persons were rather guilty of such offences whereof they were examined then otherwise yet neuerthelesse such offendors so examined by the course of the common Lawes of this Realme must be indicted within the Shires or places where they committed their offences and also tried by the inhabitants and fréeholders of such Shires and places although by their confessions or by sufficient witnes their offences were certainely knowne to the Kings Councell By reason whereof besides the trauaile of the Kings Counsell the King was often put to great charges in remaunding such persons to the countries where they offended there to bée indicted and tried of their offences And sometimes the inhabitants and fréeholders of the Shires or places where such offences were done were compelled to appeare out of their shires or places for such causes to their great charges for the triall or declaration of such offences And sometime by occasion of the charges for remaunding such offendors to be indicted and tryed by the course of the common Law such offendors did lye still in prison and were forgotten whereby many times by the helpe of their confederats they escaped vnpunished to the great courage and euill example of euill doers For the reformation whereof by a statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 23. That if any person or persons being examined before the Kings Councell or thrée of them vpon any manner of Treasons misprision of Treasons or Murthers doe confesse any such offences or that the said Councell or thrée of them vpon such examination shall thinke any person so examined to be vehemently suspected of any Treason misprision of Treason or Murther then in euery such case by the Kings commaundement his Maiesties Commission of Oyer and Terminer vnder his great Seale shal be made by the Chancellor of England to such persons Indictments and trials where the king will and to such Shires and places as shall bée named and appointed by the Kings Highnesse for the spéedie triall conuiction or deliuerance of such offendors Which Commissioners shall haue authoritie to inquire heare and determine all such Treasons misprisions of Treasons and Murthers within the Shires and places limitted by their Commission by such good and lawfull persons as shal be returned before them by the Shirife or his ministers or any other hauing power to returne Writs and Proces for that
purpose in whatsoeuer other Shire or place within the Kings Dominions or without such offences of Treasons misprisions of Treasons or Murthers so examined were done or committed and that in such cases no challenge for the Shire or Hundred shall bee allowed After which Statute there was a Statute made Anno 1. 2. Ph. Ma. whereby it was ordained St. 1. 2. P. M. 10. That trials to be hereafter had awarded Triall of Treason or made for any Treason shal be had and vsed only according to the due order and course of the common lawes of this Realme and not otherwise 12. El. Dyer fol. 286 The foresaid stat of 33. H. 8. is repealed by the said stat of 1. 2. Ph. M. touching the indictment and triall of Traitors B for they are to be indicted and tried in the county where the offence was committed or by fréeholders of that county according to the course of the common law notwithstanding that they haue confessed their offences before iij. of the K. Councell But for the triall of Murther the said stat of 33. H. 8. doth continue in force 11 For as much as some doubts and questions were moued whether certaine kinds of Treasons misprisions and concealements of Treasons committed out of the Realme of England and other the Kings dominions can or may by the common lawes of this Realme be inquired of heard and determined within the Realme of England Therefore for a plaine order remedy Indictments and trials of Treasons cōmitted out of this Realme and declaration therein to be had St. 35. H. 8. 2 by a statute made Ann̄ 35. H. 8. it was enacted That all manner of offences being already made or declared or hereafter to be made or declared by any of the Lawes and Statutes of this realme to be Treasons misprisions of Treasons or concealements of Treasons and done perpetrated or committed or hereafter to be done perpetrated or committed by any person or persons out of this Realme of England shall be from henceforth inquired of heard and determined before the kings Iustices of his Bench for pleas to be holden before himselfe by good and lawfull men of the same shire where the said Bench shall sit and be kept Or els before such commissioners and in such shire of the realme as shal be assigned by the kings commission and by good and lawfull men of the same shire in like manner forme to all intents and purposes as if such treasons misprisions of treasons or concealements of treasons had bin done committed within the same shire where they shal be inquired of heard and determined as is aforesaid But if any péere of this Realme shall be indicted of any such Treasons or c. he shall haue his triall by his Péeres B If any subiect of this Realme being beyond the sea doth practise with the Prince or Gouernour of another countrey to inuade this Realme of England with a great power and in his practise doth declare by what meanes how and in what place the same may be done 13. El. Dyer 298. and though there be no such inuasion yet this practise is high Treason Treason practised beyond the sea for an inuasion with power may tend to the destruction or great perill of the person of the King And this offence shall bée tryed according to the foresaid Statute of 35. H. 8. which Statute doth remaine in force and is not repealed by the before rehearsed Statute of 1. 2. Ph. Ma. 10. Indictment in the County of Lancaster of a forraine 12 For the conseruation tranquillity and peace of the Kings liege people as well within the County Palantine of Lancaster as of other his liege people out of the said County within the Realme of England by a statute made Anno 33. H. 6. it was established St. 33. H. 6. 2 That euery Indictment to be taken before any of the Kings Iustices in the County Palantine of Lancaster or before any Shirife in his Turne in the said County whereby any person or persons be supposed by the same Indictment to be or to haue béene inhabiting or conuersant out of the said Countie and within any other Countie within England shall be taken by verdict of twelue men whereof euery of them or some other to their vse shall haue Lands and Tenements to the yearely value of an hundred shillings and no proces shall be made out of such Indictment before it be duly examined before the Iustices within the sayd County whether the said Indictors and euery of them at the time of such Indictment taken had lands and tenemēts within the said County of Lancaster to the yearely value of an hundred shillings aboue all charges And if it be found that euery of the said indictors at the time of the said Indictment taken had not lands c. to the said yearely value of 100. shillings then the Indictment as to such persons so indicted supposed by the said Indictment to be inhabiting or conuersant out of the said County of Lancaster shal be void Indictment in a forraine County of a Lancashire man 13 And by the same statute of Ann̄ 33. H. 6. it was likewise enacted St. 33. H. 6. 2 That euery Indictment from henceforth to be taken within any County of the said Realme and out of the said County of Lancaster before any Iustice or the shirife in his Turne whereby any person or persons supposed by the same indictment to be or to haue bin conuersant or inhabiting within the said county of Lancaster and without such county where such indictment shall happen to be taken shal be taken by verdict of twelue men whereof euery of thē or some other person or persons to their owne vses shall haue lands and tenements to the value of 100. shillings And that no proces be made out of any such indictments before it be duly examined and inquired before the K. Iustices hauing power to award any proces vpon such indictments whether the said indictors and euery of them at the time of such indictments taken or any other person or persons to their vse had any Lands or Tenements to the yearely value of an hundred shillings within the same Countie aboue all charges where such Indictments happen to be taken And if it be found before the King or any of his Iustices that the said Indictors or any of them had not at the time of such Indictment taken nor that none other to their vse had Lands and Tenements to the yearely value of an hundred shillings that then the said Indictment as to any such person or persons supposed by the said Indictment to be or to haue bin inhabitants or conuersant within the said County of Lancaster shal be void and of none effect 14 Though by the rules of the common Law euery offendor shall be tried in that County wherein he is indicted and he shall be both
indicted and tried in the County where he doth commit the offence whereof he is so indicted yet for the preseruation of mans life and condignely to punish such persons as vnlawfully and wilfully murther slay or destroy men and to preuent the practise of those Théeues and Robbers that doe steale or robbe in one Countie and conuey their spoyle or part thereof to some of their adherents knowing thereof in another Countie St. 2. 3. Ed. 6. 24. by a Statute made Anno 2. 3. Edw. 6. it was enacted That where any person or persons shall be feloniously stricken or poysoned in one County A man strickeÌ„ or poysoned in one county dieth in another and dye of the same stroake or poysoning in another County that then an Indictment found by Iurors of the County where the death shall happen whether it shall be found before the Coroner vpon the sight of any such dead body or before the Iustices of Peace or any other Iustices or Commissioners which shall haue authoritie to enquire of such offences shall bee as good and effectuall in Law as if the stroake or poysoning had béene done or committed in the same Countie where the party shall dye or where such Indictment shall bée so found And by the same Statute it was further ordayned That where any Murther or Felony shall bée committed and done in one County and another person or moe shall bée accessarie or accessaries in any manner wise to any such Murther or Felony in any other County Indictment of an accessary in one county to an offeÌ„ce done in another that then an Indictment found or taken against such accessarie or accessaries vpon the circumstance of such matter before the Iustices of Peace or other Iustices or Commissioners to inquire of felonies in the County where such offences of accessarie or accessaries in any manner of wise shall bée committed or done shall bée as good and effectuall in the Law as if the principall offence had béen committed or done within the same County where the same Indictment against such accessary shal be found 6. H. 7. 10 7. H. 7. 8 Before which Statute made the manner was B to carry the body of the offendor to the County where the first offence was committed and there to indict and try him A man was indicted in the County of Middlesex for that hee in the same County procured another man to kill a third man in the Countie of Essex Fi. Cor. 33 by force whereof hée did kill him accordingly This was a good and sufficient Indictment for hée was indicted in the county where he committed his offence Kel fol. 67. viz. the procurement And if a man being in one county doth procure another to kill a third person in another couÌ„ty whereby he doth kill him accordingly in this case a Iury of the county where the murther was committed may indict this procuror as accessory for that this murther was begun by his procurement Insidiatores viarum depopulatores agrorum 15 By the Statute of Anno 4. H. 4. it was ordained St. 4. H. 4. 2. That the words Insidiatorum viarum Depopulatores agrorum shall not be from henceforth vsed or put in Indictments Arraignements Appeales nor other impeachments Nor that by force of any such word or terme any of the kings people shall be arraigned appealed impeached nor grieued before any secular Iudge But the Iustices may take and receiue before them Indictments Arraignements and Appeales of Felony containing in them the effect of the said words and termes if any shal be hereafter indicted arraigned or appealed before them of any such Felonies And if in time to come any Clerkes shall be indicted arraigned or appealed and their indiments arraignements or appeales doe purport the effect of the said wordes or other wordes of the like effect notwithstanding they shall enioy the priuiledge of their Clergie Words not necessarie in Indictments 16 By a Statute made Anno 37. H. 8. the words vi armis viz. St. 37. H. 8. 8 cum baculis cultellis arcubus sagittis or such other like before time commonly vsed and comprised in all Indictments and inquisitions of Treason Murther Felony Trespas and other offences shall not of necessitie bée put or comprised in any Inquisition or Indictment Nor the party being indicted of any offence shall take aduantage by Writ of Error Plea or otherwise to auoid any such Inquisition or Indictment for that the said wordes or any of them shall not bée put in the said Inquisition or Indictment But the said Inquisitions or Indictments lacking the foresaid words or any of them shall bée taken to all intents as good and effectuall in Law as if the said words were in them No more shall be in an indictment then is true 17 By these two last Statutes it doth appeare St. 4. H. 4. 2. St. 37. H. 8. 8 that the Realms was offended because Indictments were stuffed with more words then the offence required and that of purpose to aggrauate the offence more then it was grieuous in it selfe For the circumstances of euery offence doe augment or diminish it according to the qualities thereof And therefore it is requisite that there shall be no further circumstance put in Indictments more then the fact sauing that which is true least Periurie should ensue and Iustice bée subuerted thereby for such words be not words of forme but as materiall and necessarie as Proditorié or Felonicè which ought to be put in euery Indictment of Treason or Felony or otherwise the Indictment is not good for they doe expresse the intent wherewith the fact was committed Felonice omitted in an indictment of felony which maketh the offence to bee knowne As one was indicted That he tooke his father being sicke Fi. Indict 3. carried him against his will from towne to towne in a great frost wherof he died and for that this word Felonicè was not in the indictment it was adiudged void And if one be indicted of murther or manslaughter 1. M. Di. 99. there must be of necessitie in the indictment a stroke supposed viz. tali die anno felonicè ex malitia praecogitata interfecit murdrauit c. without saying percussit And if a man be indicted of Piracy Piracie in an indictment there ought to be in the indictment not only this word felonicè Stamf. 114. but also this word piraticè 18. E. 3. 32. Fitz. Cor. 122. 13. Ass p. 6 18 In an action of trespas brought for the taking away of a mans wife Where a verdict shal be an indictment and the goods of the husband the def pleaded not guiltie and was found by verdict guiltie in this case the same verdict shall serue as an indictment for the K. and the def shal be thereupon arraigned of felony And in like sort â—n an action of trespas brought for the taking
he may plead the same acquitall in bar for that no mans life shall be twice put in ieopardie of triall for one offence and one man can be but once slaine But it is otherwise in an indictment of robberie for a man may be robbed by one person at seuerall times and in seueral counties and so the acquitall of one of the same robberies will not serue him for the other And therfore if one be indicted of robbery in one county the defendant cannot plead 4. H. 7. 5. that he was indicted of the same robberie in another county and acquited for no man can be indicted or arraigned for a robbery but in the coūty where the same robbery was committed and though the def doth surmise that it is but one and the same felony yet that cannot be tried for the county where the first indictment was taken and the county where the last was taken cannot ioyne to make triall thereof But some do affirme that it is a good plea in an Appeale of robbery for by the Appeale the plaintif is to recouer his goods by the common law and so he is not vpon an indictment Indictment of rape A man was indicted in the K. bench of a rape and robbery committed in the county of C. and he pleaded 41. As p. 9. that he was before indicted of the same rape before the Iust of Assise in the county of C. and arraigned and acquited of the same fact And for that it was of the same fact he was discharged Arraigned vpon an insufficient indictment or appeale 42 It is not a sufficient plea in bar in an Appeale or Indictment of felony to plead that he was at another time acquited if there were not sufficient matter of felony in that apeale or indictment whereof he was acquited Co. li. 4. 45. Fitz. Cor. 414. for if there were not sufficient matter of felony in the first appeale or indictment and the same partie is againe indicted of new by an indictment which doth comprehend sufficient matter of felony he shal be againe arraigned because in that case he neuer put his life in ieopardy For when an offendor is discharged vpon an insufficient indictment the law hath not had his end neither was the life of the party in the iudgement of law at any time in ieopardie And the law will not suffer great offences to go vnpunished Acquit vpon an erronious appeale 43 If one be acquited vpon an erronious appeale which acquitall is reuersed by errour he shall now be arraigned at the K. suit vpon an indictment 9. H. 5. 2. for that by the reuersall he is become in that state as if he had not béene acquited But vntill that reuersal be made it shal be a good plea to plead Fitz. Cor. 444. another time acquit And it séemeth that the same is when the errour is in Proces that is not materiall which the defendant doth appeare and answer to the originall writ But the def shal not any more make answer to the appellant although the first acquitall be reuersed for so the appellant might delude the court infinitly and the defendant should neuer be deliuered 21. H. 6. 20 44 If one do bring an Appeale which hath no cause to maintaine the same Acquit vpon an Appeale brought by one that hath no right As if one which is not the lawfull wife or the next heire of him that was slain do bring an Appeale and the defendant doth take no aduantage thereof but pleadeth not guiltie and is acquit yet this acquitall will not serue to barre the lawfull wife or next heire of the dead when they shal bring their Appeale neither in this case the king shal be barred to arraigne him vpon a indictment or vpon a new appeale when the partie plaintife is nonsuit therein 16. Ed. 4. 11. 8. H. 5. 6. 45 If one bée arraigned vpon an Indictment at the Kings suit One arraigned vpon an indictment before the parties appeale be determined and acquited where by the order of law the King ought to haue tarried vntill the Appeale which was depending had béen determined yet this is no errour but the foresayd plea viz. another time acquit of the same felonie shall serue him that doth plead it Fitz. Cor. 375. 46 If a man be indicted of felony and arraigned at the Kings suit Acquit by battell in an Appeale it is no plea for him to say that at another time he was acquited of the same felony in an Appeale if so be that the same acquitall were not by enquest but by battell And the reason is because tryall by battell lyeth not against the King and therefore it is not méet that he should be bound by that tryall whereunto hée neither was Bracton nor could be partie And yet Bracton sayth that if the appellée in an Appeale doth make his choyce to defend himselfe by his bodie and all things be readie which doe ioyne the Appeale battell shal be presently waged and if in that case he that is appealed by diuers of one fact and of one wound doe defend himselfe against one of them hée shall goe acquit against all the residue of the appellants And so it is at the Kings suit for by this meanes he doth purge his innocencie against them all as much as i◠hée had put himselfe vpon the countrey and the countrey had cléerely acquited him Ideo quaere 47 Because by the common law A murderer indicted and arraigned at the K. suit within a yeare and a day after any murder or homicide had beene done the felonie should not haue béene determined at the kings suit for sauing of the parties Appeale wherein the partie was oft-times slow and also agréed with and by the end of the yeare all was forgotten And also for that hée which wil sue an Appeale must sue it in proper person which suit is long and costly and maketh the appellant diuers times weary thereof which were occasions of murder and manslaughter for the reformation whereof by a statute made Anno 3. H. 7. St. 3. H. 7. 1. it was enacted That if any man be slaine or murdered and the slaiers murderers abettors maintainers and comforters of the same bée indicted therefore the same slayers and murderers and all other accessories of the same shal be arraigned determined of the same felony murder at any time at the K. suit within the yeare after the same felonie murder done and not tary the yere day for any appeal to be taken for the same felony or murder And if it happē any person so named as principall or accessorie to be acquited of such murder at the Kings suit within the yeare and day then the Iustices before whom he is acquited shall not suffer him to go at large but either shall remit him againe to prison or else let him to baile after their discretion till the yeare and day
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
but only they that were taken for the death of a man by the cōmandement of the K. or his Iust or for the forest therefore by the stat of W. 1. viz. 3. E. 1. it was ordained St. 3. E. 1. 15 That prisoners which before were outlawed Who are mainpernable and who not and they which haue abiured the realm prouers and they which be taken with the maner and such as haue broken the K. prison théeues openly defamed knowne and such as be appealed by prouers so long as the prouer doth liue except he be of good fame and such as be taken for burning of a house feloniously done or for false mony or for counterfeiting the Kings Seale Or persons excommunicat taken at the Bishops request or for a manifest offence or for treason touching the King shall be in no wise mainpernable by a common writ nor without writ But souch as be indicted of larceny by enquests taken before Sherifs or Bailifs by their office or of light suspition or for petit larceny that amounteth not aboue the value of xij d. if they were not guiltie of some larceny before or guiltie of receit of théeues or felons or of commandement or force or of aid in felony done or guilty of some other trespas for which one ought not to loose life or member And a man appealed of an approuer after the death of the approuer if he be no common théefe nor defamed shal be let out by sufficient suertie whereof the Sherife will be answerable and that without giuing any part of their goods Bailement by the Sherife If the Sherife or any other let one go at large by suertie St. 3. E. 1. 1◠which is not repleuisable if he be Sherife Constable or any other Bailife of fée which hath the kéeping of prisoners and is thereof attainted he shal loose his fée and office for euer And if the Vndersherife Constable or Bailif of such as haue fée for kéeping of prisoners do it contrary to the will of his Master or any other Bailife being not of fée they shal haue iij. yeres imprisonment and make fine at the K. pleasure Withholding of prisoners repleuisable Whosoeuer doth withhold prisoners repleuisable St. 3. E 1. 15. after they haue offered sufficient suerty shal pay a grieuous amerciamēt to the K. he that doth take any reward for the deliuerance of such shall pay double to the prisoner and also a grieuous amerciament to the King 6 By the foresaid Stat. of West 1. 15. it doth appeare that in foure cases a man was not mainpernable at the common law In what cases no mainprise at the common law viz. they that were taken for the death of a man or by the Kings commandement or of his Iustices or for the forrest Touching the death of a man it is intreated of before And as concerning the Kings commandement this is intended the Kings commaundement The kings commandement by his owne mouth or by his councell which is incorporat to him doe speake with the Kings mouth and by authoritie from him Or otherwise if those words should be taken his generall commandement it may be said that euery Capias in a personall action is the Kings commandement for it is Precipimus tibi quod capias c. and yet in that case the defendant is repleuisable by the common law And as touching the Iustices commandement The Iustices commandement this shall be intended their absolute commandement for if it be their ordinary commandement he is repleuisable by the Sherife sauing in certain cases prohibited by the statute 7 Because in times past diuers persons that were indited of felonies robberies larcenies did remoue the same inditements into the K. Bench there yéelded themselues prisoners were presētly bailed by the marshals of the same Bench and after did lie in wait to kill or misuse their inditors And also for the certain persons appealed of felonie after the Exigent awarded did yéeld themselues in the K. Bench St. 5. Ed. 3. 8 then were let to baile by the marshals of the said bēch for the preuention whereof it was enacted by a statute made an̄ 5. E. 3. The marshall of the Kings bench shall baile no prisoner That such inditées and appellées shal be safely and surely kept in prison according to the charge which the said marshals shal haue of the Iustices And the marshals of the K. Bench shal not baile any felons but shal kéep them in prison and shal not suffer them to go wandring abroad by baile nor without baile And if any such prisoner be found wandring out of prison by baile or without baile that be proued at the K. suit or the parties the marshals which shal be found guilty thereof shal be halfe yeare imprisoned ransomed at the Kings pleasure And the Iustices shal inquire therof when they sée cause And if the marshals suffer the prisoner to escape by their assent they shal be at the law as before time they haue bin And so it appeareth by this Stat. that imprisonment by commandement of a Iustice was not sufficient to restraine bailement in all cases where bailement was not prohibited by the law A Iustices ordinarie cōmandement and absolute vntil the foresaid Stat. of an̄ 5. E. 3. was made and that is to be intended of an ordinarie commandement of a Iu. for if he doe giue an absolute commandement the prisoner is not baileable As if the Iustice command one to prison without shewing cause why he doth so command or for misdemeanor done in his presence or for some other cause which lieth in the discretion of the Iustice more than in his ordinary power 8 The fourth cause why a man is not repleuisable by the common law is the forrest St. Char. Forest 16. for whereas by the Statute of Charta forestae made an̄ 9. H. 3. and confirmed by King E. 1. The king did graunt for him and his heires that of trespasses committed in his Forrests of vert and venison that the Forresters in whose Bailiwickes such trespasses should be committed should present the same trespasses at the next Swanimot before the Forresters Verderers Regardors and Agistors and other ministers aforesaid by the oathes as well of Knights as others wise and lawful men and not suspitious of the parts next adioyning and néerest where those trespasses shal be so presented and where the truth may best and most certainly be inquired of and the same truth being once found out those presentments by the common assent and agreement of all the Officers aforesaid shal be solemnely written sealed with their seales And if any inditement be made in other manner it shal be accounted void And because the chiefe wardens of Forrests did not obserue the said order but that diuers people were disherited ransomed and vndone by the chiefe wardens of the Forrest on this side Trent and beyond and by other
hide their affection in that behalfe haue signified the cause of their apprehension to bée but onely for suspition of felonie whereby the said offendors haue escaped vnpunished to the incouragement of théeues and euil doers For reformation whereof by a stat made Anno 1. 2. P. M. it was ordained St. 1. 2 P. M. 13 That no Iustice or Iustices of Peace shall let to baile or mainprise any such person or persons which for any offence Bailing of offendors by Iust of peace or offences by them or any of them cōmitted be declared not to bée repleuisable or bailed or forbiddē to be repleuied or bailed by the stat of West 1. made An̄ 3. E. 1. And furthermore that any person or persons arrested for manslaughter or felonie or suspition of manslaughter or felonie being baileable by the law shal not be let to baile or maineprise by any Iu. of Peace if it be not in open Sessions except it be by two Iu. of peace at the least whereof one to be of the Quorum and the same Iustices to be present together at the time of the said bailement or mainprise which bailement or mainprise they shall certifie in writing subscribed or signed with their owne hands at the next generall Gaole deliuerie to be holden within that countie where the said person or persons shal be arrested or suspected And the said Iu. or one of them beeing of the Quorum when any such prisoner is brought before them for any manslaughter or felonie before any bailement or mainprise shall take the examination of the said prisoner and information of them that bring him of the fact and circumstances thereof and the same or as much thereof as shal be materiall to prooue the felonie shall put in writing before they make the same bailement which said examination together with the said bailement the said Iu. shall certifie at the next generall Gaole deliuerie to be holden within the limits of their commission And euerie Coroner vpon any inquisition before him found The Coroners duty vpon an inquisition found wherby any person or persons shal be indited for murder or māslaughter or accessorie or accessories to the same before the murder or manslaughter committed shall put in writing the effect of the euidence giuen to the Iury before him being materiall And aswel the said Iu. as the said Coroner shall haue authoritie by this act to bind all such by recognizance or obligation as do declare any thing materiall to prooue the said murder or manslaughter offences or felonies or to be accessory or accessories to the same as is aforesaid to appeare at the next generall Gaole deliuerie to be holden within the county city or town corporat where the triall thereof shal be then there to giue euidence against the partie so indited at the time of his triall and shal certifie aswel the same euidence as such bond bonds in writing which he shal take together with the inquisition or inditement before him taken found at or before the time of his said triall thereof Certificat of a bond taken by a Iu. of peace to be had or made And likewise the said Iu. shall certifie all euery such bond taken before him in like maner as before is said of bailmēts and examination And in case any Iu. of peace or Quorum or Coroner shal offend in any thing contrarie to the true intent and meaning of this act then the Iu. of Gaole deliuerie of the shire citie towne or place where such offence shal happen to be committed vpon due proofe thereof by examination before them shal for euery such offence set such fine on euery of the same Iu. of peace Coroner as the same Iu. of Gaole deliuerie shall thinke méet and shall estreat the same as other fines and amerciaments assessed before Iustices of Gaole deliuerie ought to be Prouided alwaies that Iu. of Peace and Coroners within the city of London and the County of Middlesex in other Cities Boroughs and Townes corporat within this Realme and Wales shall within their seuerall iurisdictions haue authority to let to baile felons and prisoners in such manner forme as they haue bin heretofore accustomed This act or any thing therein contained to the contrary notwithstanding And also shall take examinations bonds as is aforesaid vpon euery bailement by them or any of them to be made and shall certifie euery such bailements bonds examinations by them or any of them takē or made at the next Gaole deliuery to be holdē within the shire city borough or towne where their seuerall iurisdictions extēdeth vpon like paine and forf as is before limitted in this present act 14 Because Sherifs and others did in times past let to mainprise notorious and knowne théeues being taken and imprisoned for murder and other felonies S. 3. E. 1. 15. and such as be not mainpernable contrarie to the forme of a Statute made touching those which bee repleuisable and which not and thereby such malefactors as were not repleuisable were let to mainprise And for to deliuer them deceitfully before the comming of the Iustices in Eire or other assigned for their deliuerance they procured and suborned by themselues and by their friends Iurors of the countie some they threatened And so partly for feare of the Sherifs and others which did let them to baile and partly for feare of those felons which were so let to mainprise many robberies and homicides were hidden and concealed from the Iustices of Gaole deliuerie for the preuention whereof by a Stat. made an̄ 27. E. 1. An. 27. E. 1. 3. intituled the Stat. of fines leuied it was ordained That Iustices assigned to take assises in euery countie where they take assises presently after the assises taken shall remaine both together if they be Laie And if one of them be a Clerke then one of the most discréet knights of that county being associate vnto him by the kings writ shall deliuer the Gaole in that countie aswell within liberties as without of all the prisoners according to the vsuall forme of deliuering of Gaoles Bailement of offendors by Sherifes And then the same Iustices shall inquire which sherifs and others haue let to baile any prisoners that were not repleuisable or haue offended in any thing contrarie to the Stat. of West 1. and to punish and chasten them in euery respect according to the forme of the said Statute 15 And for the causes aforesaid it was ordained by the stat of an̄ 4. E. 3. St. 4. E. 3. 2 that good and discréet persons other than of the places if they may be found sufficient shal be assigned in all the counties of England to take assises Iuries and certifications and to deliuer the Gaoles And the same Iustices shall take the assises Iuries and certifications shall deliuer the Gaoles thrice in the yeare at the least and more often if néed be And
may make relation of those offences and of the whole circumstances thereof Confession before the Coroner 4 There is also a third kinde of confession made by an offendor in felonie which is not in Court before the Iudge as the other two be but before the Coroner in a church or priuiledged place whereupon the offendor by the antient Lawe of this Realme is to make his abiuration out of the Realme Of which approuing and abiuration I will write in the two next chapters Approuer AN Approuer is a felon that hath committed a felonie Who is an Approuer and after confesseth the same and then doth appeale and accuse others who were helpers or coadiutours with him to commit the same felonie which thing being done he is thereby called an Approuer who in latine is termed Probator for that he must prooue that which is contained in his appeale or accusation And the proofe must be by battell or by the verdict of twelue men at the choice of him who is appealed And if he doe prooue it the kings of this Realme haue vsed to graunt him pardon of his life Britton because he doth fight for the peace of the Realme and doth deliuer the countrie of malefactors for he is to make couenant or promise to the Iudge who will be sutor to obtaine his pardon how many offendors he will conuince and accordingly he is to vanquish them in battell attaint them by verdict or cause them to flée and so by that meanes to become outlawes But yet he shall be banished the Realme Bracton de coron̄ c. 34. and not continue therein An Approuer banished though he would finde pledges for his good abearing 19. H. 6. 47. 12. Ed. 4. 10 Fi. Cor. 231 387. 2 A man imprisoned for felonie may approue of treason if he will Of what offēces approuement may be and in like sort he that is imprisoned for treason may approue of felonie if he wil for when the Iustices doe admit him to approue they doe sweare him vpon a booke to approue of all felonies and treasons that he doth knowe And yet many doe affirme that approuement must be onely of the thing whereof the approuer is indicted Bracton de coron̄ c. 33. 25. Ed. 3. 39 and of none other and of that treason or felonie which he himselfe with others did commit and that approuement of all other offences is voide As if one will appeale an other for robbing of him viz. of the Approuer it is voide Or if one will appeale an other for procuring the saide approuer to commit a felonie Or that where he the saide Approuer had committed a felonie the appellée knowing thereof did feloniously receiue him and comfort him 10. E. 4. 14. 40. Ass p. 39 it is voide because those offences hée could not commit for he could not robbe himselfe nor be accessorie to himselfe Sed de hijs quaere Quaere Séeing the approuer is sworne to approue of all the felonies and treasons that he doth know Approuement in an Indictment and not Appeale 3 A man may approue in an indictment of felonie 11. H. 7. 5. Fi. Cor. 113 but not in an appeale of felonie for if he should approue in an appeale of felonie he should thereby delay the Plaintife in the appeale to haue execution of him And in like sort if one that is indicted of felonie doth become an approuer and after an appeale is sued against him vpon the same indictment Fi. Cor. 442 in this case he shall surcease to procéede any further in his approuement But vpon an indictment of felonie the prisoner which is arraigned may confesse the felonie pray a Coroner and so approue And though some haue thought that if a prisoner be not indicted but doth stand at the barre as one that is to be deliuered by Proclamation if he will refuse the benefit thereof confesse a felonie Fi. Cor. 231 and pray to become an approuer that he shall be thereunto receiued And some others haue béene of opinion that if a man be in prison but for suspition of felony he may confesse the felony before a Coroner and become an approuer But that cannot be by the Lawe for a man cannot be attainted by his confession if he be not indicted or appealed thereof before and it is alwaies requisite for him which shal become an approuer An Approuer must confesse the felonie that his confession be made vpon such matter vpon which the Iudge at all times at his pleasure may giue iudgement to attaint him Before whom one may approue 4 One may become an approuer before those who haue authoritie to assigne him a Coroner as the Iustices of the Kings Bench the Iustices in Eire and the Iustices of gaole deliuerie But so can not Iustices of Peace and therefore a man can not become approuer before them 2. H. 4. 19. 9. H. 4. 1. Neither can a man become an approuer in a Court Baron before the Steward and Sutors Nor in the Countie court before the Shirife and Suitors Nor before any other speciall Iudge vnlesse his Commission doth extend thereunto How an Approuer shall vse himselfe 5 He that will become an approuer must when he is at the barre before the Iudge confesse the felonie whereof he is arraigned and pray that a Coroner may be assigned vnto him to heare his approuement or appeale against others for without confession of the offence whereof he is arraigned Fi. Cor. 441 2. H. 7. 3. 21. Ed. 3. 18 19. H. 6. 47. Fi. Cor. 440 he cannot pray a Coroner No approuement after pleading And this confession must be at the beginning before hée hath pleaded any plea to the contrary therof For if he will pleade not guilty he cannot after waiue that plea and confesse the felonie and pray a Coroner And the reason is because it cannot be intended that hée will proue that which he hath affirmed against others when he hath shewed himselfe so false and vnconstant in his answer before for he is called an Approuer viz. Probator to the intent that he shall prooue that which he alleadgeth against others whereof there is small hope to be conceiued when in the beginning he hath made a lie of himselfe for if he will haue his approuement allowed for good An Approuer must tell truth he must alwaies be found to speake trueth without any lying And when the Court doth perceiue that he hath made a lie 25. Ed. 3. 42 they presently take his approuement from him and giue iudgement that he shall be hanged As an approuer did appeale diuers and the Shirife and Coroners did testifie that there were none such in that countie and without further inquirie the approuer was adiudged to be hanged And if vpon the appeale of an approuer 21. H. 6. 34 processe be awarded against those which he doth appeale and the Shirife returneth non sunt inuenti
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
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
linguae Therefore the more to encourage Marchants to continue here and also others to come with their marchandizes into this Realme by a Statute made Anno 8. H. 6. St. 8. H. 6. 29 it was declared That the same Statute made Anno 2. H. 5. should be no wayes preiudiciall to the foresaid first statute made 28. Edw. 3. nor was not meant that it should extend to any but onely to Enquests to be taken betwéene Denizon and Denizon and not to the other Enquests or proofes mentioned in the sayd Statute of 28. Ed. 3. viz. to Enquests to be taken betwéene Denizons and Aliens And that the first statute of 28. Ed. 3. should bée effectuall stand in force and be put in execution according to the forme thereof notwithstanding the later Statute of 2. H. 5. and notwithstanding that Aliens haue not lands or tenements of the yearely value of fortie shillings according to the purport of the sayd later statute of 2. H. 5. And so by this statute want of sufficient fréehold is the cause of Challenge to Aliens which bée impanelled with English men But yet it séemeth to be a cause to challenge English men who bée impanelled with Aliens for the perclose of this Statute doth wholly relye vpon Aliens This last rehearsed Statute of 8. H. 6. willeth That the intent of the other Statute of 2. H. 5. should bée preferred before the words thereof and so the Iudges of the law haue expounded it 9. H. 6. 27. for they haue allowed a Iuror which had not fortie shillings of fréehold to bée sworne in an Enquest if others had so much land to his vse And where the words of the statute be If he hath not lands or tenements of the yearely value of fortie shillings and doth not expresse in what Countie yet they doe take it by intendment that the lands must bée in the Countie where the issue is to bée tryed 9. H. 7. 1. M. 12. H. 7. 4 H. 32. H. 8. 20. P. 21. H. 6. 39. And for that the words be in the Present tense viz. if hée hath not they doe expound it that the Iuror must haue so much land in the same Countie at that time when he is sworne for though he had so much land when he was impanelled yet if he hath aliened it or that the same was euicted from him by an auncient title before the time hee was sworne the challenge of insufficiencie shall bée allowed vnto the prisoner And whereas the foresayd statute of 2. H. 5. hath ordayned That no person shall be admitted to passe in any Enquest vpon the tryal of the death of a man if hée hath not lands of the yearely value of fortie shillings this is not meant of the tryall of the death of a man which is slaine but of the tryall of the death of a man which standeth at the barre vpon the question of his life or death And then will this challenge serue for want of sufficient lands vpon the triall of all maner of felonies and treasons By the Statute of 33. H. 8. it is enacted That he which is arraigned of treason St. 33. H. 8. 12. murder or manslaughter committed within the Verge shall haue no maner of challenge to any of the Iury malice only excepted and so shall haue no challenge for want of sufficient fréehold And in like sort it is ordained by the Statute of Anno 3. H. 7. St. 3. H. 7. 14 That hee which being the Kings seruant sworne and whose name is in the checke Roll of the Kings houshold vnder the degrée of a Lord which is arraigned for conspiring with any other to destroy any Lord of this Realme or any other sworne to the Kings Councell Or the Steward Treasurer or Controller of the Kings house shall not haue any challenge but for mallice and so shall haue no challenge for want of sufficient fréehold By a Statute made Anno 33. H. 8. St. 33. H. 8. 13. it was enacted That if a Commission of Oyer and Determiner bée directed into any County for the tryall of any person which doth confesse any Murther to thrée of the Kings Councell or is vehemently susspected thereof no challenge for the Hundred or Shire shall bée allowed vnto him But the challenge of any Iuror for lacke of Fréehold of the yearely value of forty shillings shall bée allowed as hath béene accustomed And because Trials in Murthers and Felonies in Cities Boroughes and Townes corporat within this Realme hauing authoritie in the deliuerance of such offendors were oftentimes deferred and delayed by reason of challenge made by such offendors of Iurors for lacke of sufficiency of fréehold to the great hinderance of iustice for the redresse thereof by a statute made Anno 23. H. 8. St. 23. H. 8. 13. it was enacted That euery person being the kings naturall subiect borne which either by the name of a citizen or a fréeman or any other name doth enioy the liberties of any City Borough or Town◠corporat where he dwelleth being worth in mooueable goods to the cleare value of forty pounds shall bée admitted in tryall of Murthers and Felonies in euery Sessions and Gaoles of deliuery kept in and for the liberty of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this act extendeth not to any Knight or Esquire dwelling abiding or resorting to any such City Borough or Towne corporat any thing in the same act to the contrary hereof notwithstanding 5 Vpon the arraignement of a prisoner the king by his prerogatiue might haue challenged euery of the Iurors peremptorily by the common law without shewing of any cause thereof and by that challenge the same Iuror should haue béene presently drawne But this was a great mischiefe and offence to the subiect who by that meanes was infinitely delayed and had often put out of the Iury the most discréet and indifferent men which were returned for his tryall For the remedy whereof by a Statute intituled Ordinatio de inquisitionibus Challenge for the king made Anno 33. Edw. 1. St. 33. E. 1. it was established That touching Inquisitions to bée made before any Iustices wherein the king is any way a party although it bée alleadged by those which doe prosecute for the king that the Iurors of those Inquisitions or any of them bée not good for the king those Inquisitions shall not therefore remaine to bée taken But if they which doe pursue for the king will challenge any of those Iurors they shall shew a certaine cause of their challenge and the truth of that challenge whether it bée true or not shal be inquired of according to the Iustices discretion But he that doth prosecute the sute for the king néede not presently shew the cause vpon his challenge as a common person should do if he were party against the king for he may shew that cause when he hath perused the whole pannell But if he that is arraigned
1. H. 5. 10 Fit Chall ' 105. 38. Ass p. 22 doe challenge any of the Polles hee must shewe the cause vpon his Challenge which must be presently tried for that it is in a plea of the crowne wherein the king is a party 6 A man outlawed of Felonie An Outlaw of Felony shall haue his challenges vpon an Issue taken for the auoidance of the Felony Fi. Chall ' 153. 165. For though hée cannot challenge a worse man then himselfe béeing outlawed for Felony yet séeing it is in Issue to trie whether hee bee an Outlaw or not and by this tryall if it bée found for him to defeat the same Outlawry that opinion of him ought to bee holden in suspence vntill the said issue shall be tried against him 21. H. 6. 30. 14. H. 4. 19. 7 It is a good Challenge vpon cause to say that one of the Iurors is an Alien or a Villaine or an Outlaw A Iuror an alien villaine or outlaw for then hée is not Liber legalis homo For though an Alien borne hath dwelt in this Realme from his childhood and be sworne in a Léet or other Court to the Kings obedience yet he is not the Kings liege man for the Steward of a Léet nor any other can make an Alien Legalis homo but onely the King ⧠Euidence 1 WHen a prisoner is indicted of Treason or Felony hath pleaded not guilty is therupon arraigned and finished his challenges then euidence is to be giuen against him to proue him guilty which euery person shall bée admitted to doe for the king And because the euidence of those that tooke the said offendor with the manner did first accuse him or brought him before the Iustices of Peace to be examined of the supposed offence hath béene alwaies adiudged most pregnant and effectuall Therefore by a statute made Anno 1. 2. Ph. Ma. St. 1. 2. P. M. 13. it was ordayned That two Iustices of Peace at the least Euidence against an offeÌ„dor let to batle wherof one of them to be of the Quorum when any prisoner is brought before them for any manslaughter or felony before any bailement or mainprise shall take the examination of the said prisoner and information of them that bring him of the fact and circumstances thereof and the same or as much thereof as shal be materiall to proue the felony shall put in writing before they make the same bailement which said examination together with the said bailement the said Iustices shall certifie at the next generall Gaole deliuerie to bée holden within their Commission and that euery Coroner vpon any inquisition before him found whereby any person or persons shall bée indicted for murther or manslaughter or as accessorie or accessories to the same before the murther or manslaughter committed shall put in writing the effect of the euidence giuen to the Iury before him béeing materiall And as well the said Iustices as the said Coroner shall haue authority by this act to bind all such by Recognisance or Obligation as doe declare any thing materiall to proue the said murther or manslaughter offences or felonies or to bée accessories or accessories to the same as is aforesaid to appeare at the next generall Gaole deliuerie to bée holden within the County City or Towne corporat where the tryall thereof shall bée then and there to giue euidence against the party so indicted at the time of his triall and shall certifie as well the same euidence as such bond and bonds in writing as hée shall take together with the Inquisition or Indictment before him taken and found or before the time of his sayd tryall thereof to bée had or made And likewise the said Iustices shall certifie all and euery such bond taken before them in like manner as is before said of baylements and examination And in case any Iustice of peace or Quorum or Coroner shall offend in any thing contrary to the true intent and meaning of this act then the Iustices of Gaole deliuery of the Shire City Towne or Place where such offences shal happen to be committed vpon due proofe thereof by examination before them shall for euery such offence set such fine on euery such Iustice of Peace and Coroner as the same Iustices of Gaole deliuery shall thinke méet and shall estreat the same as other Fines and Amerciaments assessed before Iustices of Gaole deliuery ought to bee S. Mainprise 13. 2 Because the foresaid statute of 1. 2. Ph. Ma. 13. doth not extend to any such prisoners as shall be brought before any Iustice of Peace for Manslaughter or Felony and by such Iustice shall be committed to ward for the suspition of such Manslaughter or Felony and not bayled in which case the examination of such prisoner and of such as shall bring him is as necessary or rather more then where such prisoner shall be let to bayle For the reformation whereof St. 1. 2. P. M. 10. by a statute made Anno 2. 3. Ph. Ma. it was enacted That such Iusticâ—s or Iustice before whom any person shall bée brought Euidence against an offendor coÌ„mitted to prison for Manslaughter or Felony or for suspition thereof before he or they shall commit or send such prisoner to ward shall take the examination of such prisoner and information of those that bring him of the fact and circumstances thereof and the same or as much thereof as shall be materiall to prooue the Felony shall put in writing within two dayes after the said examination and the same shall certifie in such manner and forme and at such time as they should and ought to doe if such prisoner so committed or sent to ward had béene bayled or let to mainprise vpon such paine as in the said former act is limitted and appointed for not taking or not certifying such examinations as in the said former act is expressed And the said Iustices shall haue authority by this act to bind all such by Recognisance or Obligation as doe declare any thing materiall to proue the said Manslaughter or Felony against such prisoner as shall bee so committed to ward to appeare at the next generall Gaole deliuery to be holden within the County City or Towne corporat where the triall of the said Manslaughter or Felony shall be then and there to giue Euidence against the party And the said Iustices shall certifie the sayd bands taken before them in like manner as they should and ought to certifie the bands mentioned in the said former act vpon the paine as in the said former act is mentioned for not certifying such bands as by the said former act is limitted and appointed to be certified 3 And for that men should be the readier and more willing to giue Euidence against Robbers and other Felons Restitution vpon attainder by euideÌ„ce by a statute made Anno 21. H. 8. St. 21. H. 8. 11 it
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
conuicted or Clerke attainted and the day and place of his outlawrie conuiction and attainder and the day and place where and when the said felony or other offence whereupon the said person or persons shal be so indicted outlawed or Clerke attainted shall be made and done before the K. in his bench at West in the county of Midd. there to remaine of record for euer among other the K. records there within xl daies next after any such attainder conuiction or outlawrie shall be had made or procured if the terme be thē if not within xx dayes next after the beginning of the terme next following the said xl daies but also shall deliuer a transcript of euerie such indictment whereupon the said person persons shal fortune hereafter so to be conuicted or Clerkes attainted to the Ordinary to whom the body of the said person or persons shall be committed at the time that the sayd person or persons shall bee committed the sayd Ordinarie paying to euerie such Clerke as shall write the sayd Transcript for euerie copie of such indictment twelue pence for his paines vpon paine that euery Clerke of the Crowne Clerke of the peace and Clerke of Assise for the time being before whom such Indictment Attainder Outlary or Conuiction shal be so had made pronounced or remaine for the non-certifying of euery such record and deliuering of the copy of such Indictment to the said Ordinaries according to this statute to loose and forfeit forty shillings the one moity thereof to be to the king and the other moity to him that will sue for the same by action of Debt Bill Information or otherwise in any of the kings Courts of Record wherein no Wager of Law Essoine or Protection shal be allowed and the clerke of the Crowne in the kings Bench shall receiue the said certificats and transcripts at such time as they shall be tendered and profered vnto them by the said clerkes of the Crowne clerkes of the peace and clerkes of assise or by their deputy or deputies without taking any thing for the same vpon paine of forfeiture of forty shillings for euery such certificat by him refused Prouided alwaies that if there be any more persons contained and named in any such Indictment other then such person so attainted conuicted or outlawed that then such clerke of the crowne clerke of assise or clerke of peace with whom the record of such attainder outlary or conuiction shall remaine shall within the time before in this act limitted certifie the transcript of such indictment outlarie or conuiction onely concerning such person or persons so indicted and attainted outlawed or conuicted into the kings Bench at Westminster as is aforesaid which transcript so certified shall be had and taken as good effectuall and auaileable in the Law to all intents and purposes against such person and persons against whom it shall be so obiected alledged or pleaded as if the very record thereof whereupon he or they were so indicted were there present And be it enacted c. That the said clerke of the crowne in the kings Bench for the time being shall at all such times as the Iustices of Gaole Deliuerie or Iustices of Peace in euery County within this Realme of England doe write vnto him for the names of such persons which be so attainted by Outlarie or clerkes attainted or conuicted and certified into the said Bench shall incontinently without delay certifie the said names and surnames of the said persons with the causes why and wherefore they were conuict or attainted vnto the Iustices of Gaole deliuery or Iustices of Peace vpon paine and penalty to forfeit for euery name of such persons which shall be so written for and not certified by the said Clerk of the Crowne in the Kings Bench to the said Iustices fortie shillings Prouided that this Act nor any thing therein contained shall not extend to the Clerkes of the Crowne Clerkes of the Peace Clerkes of Gaole deliuerie neither to any of the Prenotaries within the Counties of Wales and Chester or within the Counties Palantine of Lancaster and Duresme or any of them to make any transcript of any such attainder conuiction or outlawrie of any person or persons conuicted attainted or outlawed before the Kings Iustices of his Counties of Wales nor Chester or Countie of Lancaster Duresme or any of them but that the same Records shall and may remaine and be in the custodie and kéeping of the sayd Clerkes and Prenotaries in such maner and wise as they are at this day this Act or any thing therein contained to the contrarie notwithstanding 43 Though the deliuering of him to the Ordinarie who hath the benefit of his Clergie and making of purgation bée taken away the Statute of 18. Eliz. 6. yet because both deliuering to the Ordinarie and making of purgation were vsed by the space of many generations in this realme and seuerall lawes statutes and some prouinciall councells were made and ordained touching the ordering direction and gouernance of those which as Clerks conuict or attaint were committed to the Ordinary and were to make purgation or not I will therefore briefly set downe the effect of some of those laws as antiquitie did retaine them He which had the priuiledge of his Clergie and was deliuered to the Ordinarie that did demaund him was not set at libertie to goe wandring vp and downe the Countrie but was safely and straitly kept in the Bishoppes prison In what sort a clerke deliuered to the Ordinarie was vsed hauing for foode vppon the Sonday bread ale and pease and vpon all the other daies courser bread and small drinke once in the day onely or in the Kings prison if the Bishop would haue it so vntill hée had purged himselfe of the crime wherewith hée was charged or otherwise had failed of his purgation and could not make it And if the Bishop would not admitte him to make his purgation then the King would direct his Writte to the Bishoppe commaunding him to suffer the same prisoner to make his purgation 15. H. 7. 19. or the King at his pleasure might pardon the prisoner or cause him to be set at libertie without making any purgation And when a Clerke was to make his purgation the King was to be made priuie thereunto who did direct his Writ to the Shirife of the countie where the offendor was prisoner commaunding him to make proclamation through his Countie that if any man could shew cause why such an offendor viz. A. B. prisoner in the Kings or Bishoppes prison should not make his purgation that then he should appeare such a day and in such a place and shew the same cause And in London the Preacher at Paules Crosse did likewise notifie that A. B. The manner of making purgation prisoner in such a prison was to make his purgation in such a Diocesse at such a place vpon such a day at which day assigned whether any crime or not to giue
euidence against him they vsed to bring forth the prisoner and to arraigne him of the principall fact and if hée pleaded or saide that hée was not guiltie thereunto then an Enquest of Clerkes was charged And if by the saide Enquest of Clerkes he was found not guilty of the same offence then he was set at libertie and if hée were found guiltie he was disgraded There be two sorts of Clerkes whereof the one is a Clerke conuict and the other is a Clerke attainted A Clerke conuict A Clerke conuict is hée who praieth his Clergie before Iudgement be giuen against him of death and hath his Clergie allowed vnto him such a Clerke before the Statute of 18. Elizab. might haue made his purgation sauing in certaine especiall cases As a common thiefe could not make his purgation Fi. Cor. 247 notwithstanding that hée were but a Clerke conuict for it is better for the common wealth to haue such an incorrigible person continually to remaine in prison than to goe at libertie to doe more hurt Fi. Cor. 417 And likewise a Monke that was a Clerke conuict should haue béene deliuered to his Abbot to haue remained in the Abbey continually without making his purgation Fi. Cor. 109 147. And also in an appeale if the Defendant had béene conuict by verdict and had enioyed his Clergie as a Clerke conuict he should not haue made his purgation for if hée had made his purgation then the Plaintife in the appeale should haue recouered his goodes without cause for that by the purgation it doth appeare that hée was not guiltie of the felonie A Clerke attainted Clerke attainted is he who praieth his Clergie after Iudgement of felonie giuen of him Such a Clerke could not haue made his purgation for that when he was condemned of felony by iudgement hée could not contrarie to that Iudgement be purged thereof that iudgement remaining in force and therefore there was none other remedy for him but to purchase the Kings pardon or else hée must haue remained in prison during his life And whether this Iudgement of death did follow either vpon Confession before the Coroner Clergie after Confession vpon abiuration or before the Iustices vpon his arraignement or vpon triall by verdict of twelue men if this iudgement were once giuen hée should not after make his purgation And though after his confession of the felony and before Iudgement giuen against him thereupon he doth pray his Clergie he shall haue it and might haue made his purgation for that the confession being before a secular Iudge who is not his Iudge is voide And for that cause the statute of Articuli Cleri cap. 16. doth ground St. 9. E. 2. 16 That an approuer Approuer shall haue the benefit of his Clergie and yet he hath confessed his offence before a secular Iudge And it is not to be interpreted that the benefit of this Statute is to be extended onely to saue the approuers life and not to set him at libertie by making his purgation for then hée should haue but part of the benefit of Clergie and not the whole which is contrary to the saide Statute of Articuli Cleri If an approuer had waiued his appeale holden him to his Clergie he should haue made his purgation Fi. Cor. 128 because the Temporall court doth dismisse him as a man in whom it hath no iurisdiction which waiuer of the appeale did not waiue the confession that hée had made before 27. H. 6. 7 13. E. 4. 3 Fi. Cor. 56 247 And though an approuer in some Cases should not haue made his purgation yet that was in such cases onely where he did not pray his Clergie vntill Iudgement was giuen against him of felonie If one that shall abiure the Realme for felony had come againe into the Realme without the Kings licence whereupon he was taken and brought to the Barre and that it was demaunded of him whie hée should not be put to death and he had demaunded his Clergie and that was allowed yet he should not haue béene deliuered to the Ordinarie but sent to prison againe Fi. Cor. 155 vntill hée had obtained the Kings pardon For Clergie would haue serued him for the felonie but not to excuse the contempt which he made by comming againe into the Realme without the Kings licence But it had béene otherwise if he had prayed his Clergie at the time when he fled to the Church By the entrie into the Roule of the Court which made mention of the prisoners deliuerie to the Ordinarie In whom rested the making of purgation it appeareth that the making or not making of purgation did rest much in the Temporall Court and not in the Ordinarie for if he were not to make his purgation then the entrie was Quod talis commissus est Ordinaria absque purgatione facienda and if hée were to make his purgation then the wordes Absque purgatione facienda were omitted and in all cases where the Temporall court had determined that purgation did not lie as in the case of Clerke attaint or such like if the Ordinarie had admitted the prisoner to haue made purgation and thereby set him at libertie Escape for suffering purgation he should haue bin charged with an escape for the authority whereby he was committed to prison was temporall and he receiued him from the temporall court or otherwise the Ordinary could not haue retained him in prison And therefore the temporall court had somewhat to doe with setting him at libertie out of prison If one had béene conuicted of diuerse felonies and had béene admitted to his Clergie in that case hée ought to haue made purgation for them all But the force of the foresaide Lawes Fi. Cor. 232 touching committing of clerkes to the Ordinary and making of purgation is alterd by the before mentioned statute of Anno 18. Eliz. St. 18. El. 6 whereby it was enacted That euerie person and persons which shall be admitted and allowed to haue the benefit or priuiledge of his or their Clergie shall not thereupon be deliuered to the Ordinarie as hath béene accustomed but after such Clergie allowed and burning in the hand St. 4. H. 7. 13 according to the statute in that behalfe prouided shall forthwith be enlarged deliuered out of prison by the Iustices before whom such Clergie shall be graunted that cause notwithstanding Clergie allowed without deliuery to the Ordinarie Prouided neuerthelesse that the Iustices before whom any such allowance of Clergie shal be had shall and may for the further correction of such persons to whom Clergie shall be allowed detaine and kéepe them in prison for such conuenient time as the same Iustices in their discretions shall thinke conuenient so as the same doe not excéede one yeeres imprisonment Any lawe or vsage heretofore had to the contrary in any wise notwithstanding ⧠The Kings Pardon THe Kings Pardon is a barre to an Indictment
of treason or felonie which graunting of Pardon is one of the most ancient and honourable prerogatiues that is annexed to the Imperiall Crowne of this Realme being an authoritie in a sort to reuiue a dead man and to continue him in life whom the Lawe adiudged to die And it is only granted vpon a good hope that the king hath of the amendment of the life of that subiect who hath offended his lawes and whose crime his owne conscience doth assure him that he may pardon notwithstanding his othe taken at his coronation which othe is that he will to the vttermost of his power cause equall and right iustice to be done in all iudgements and discretion in mercy and truth for as Bracton Bracton saith The King at his coronation The Kings oath at his coronation by an oathe taken in the name of Iesus Christ the sonne of God ought to promise his subiects thrée things The first that he will commaund and doe his whole indeuour during his raigne that true peace may be performed to the Church of God and all his people The second that he will by all meanes restraine euery kind of rapine and oppression The third that in all Iudgements he will commaund iustice and mercie to be obserued that by his mercifull dealing with others the God of mercie may take commiseration vpon him and that by his iustice all his people may enioy peace 2 Because authoritie to remitt and pardon Treasons Murders Manslaughters and other felonies with diuers others of the most ancient prerogatiues and authorities of Iustice appertaining to the imperiall Crowne of this Realme were seuered and taken from the saide Crowne by sundrie gifts of the Kings of this Realme to the great diminution and detriment of the royall estate of the same and to the hindrance and delay of iustifie For reformation whereof by a statute made Anno 27. H. 8. St. 27. H. 8. 25. it was enacted That no person or persons of what estate or degree soeuer they be shall haue anie power or authoritie to pardon or remit any treasons None but the king shal pardon treasons felonies c. murders manslaughters or felonies whatsoeuer they be nor any accessories to any treasons murders manslaughters or felonies or any outlawries for any such offences aforesaid committed done or diuulged by or against any person or persons in any parts of this Realme or Wales or the Marches of the same But that the King his heires and successors kings of this Realme shall haue the whole and sole power and authoritie thereof vnited and knit to the imperiall crowne of this realme as of good right and equitie it appertaineth any graunts vsages Acts of parliament or any other thing to the contrary notwithstanding 3 But because the Kings of this Realme haue not had that circumspection in graunting of pardons which Bracton doth thinke fit and haue béene many times deceiued in their grants by false suggestions and for that offendors in times past were greatly encouraged and lesse feared to offend in respect that pardons of manslaughters robberies felonies and other trespasses against the Peace were so easily graunted For the redresse whereof by a statute made Anno 2. Ed. 3. St. 2. Ed. 3. 2 it was ordained In which cases onely the K. may grant pardon of felonie c. That no such charters should be graunted but where the King may doe it by his oathe that is to say in case where a man doth kill an other in his owne defence or by misfortune which laide Statute was after rehearsed and confirmed by an other Statute made Anno 4. Ed. 3. St. 4. E. 3. 13 And also by another Statute made Anno 14. Ed. 3. St. 14. Ed. 3. 10. the effect of the same was rehearsed and confirmed and it was moreouer ordained That if any charter of pardon were from thenceforth graunted contrarie to the purport of the said Statutes that then the same should be accompted as voide 4 And though there be wordes large enough in the foresaide Statutes to make frustrate all those charters of pardon which be graunted against the forme of the same Statutes Non obstante in a pardon yet by putting into the Charters of pardon these wordes viz. Non obstante aliquo statuto actu ordinatione in contrarium edito the force of those Statutes be cleane taken away and not onely of those but also of all other in which this clause of Non obstante is inserted for it is a dispensation of the Statute and commonly put in euerie Letters patents But because the Kings of this Realme were oft times deceiued in granting of charters of pardon by the false and vntrue suggestion of others Therefore to auoide those abuses by a Statute made Anno 27. Ed. 3. St. 27. E. 3. 2 it was accorded That in euery charter of pardon of felonie The suggestion comprised in the pardon which shall be graunted at the suggestion of any person the suggestion and the name of him that maketh it shall be comprised in the same charter And if after the suggestion be found vntrue the Charter shall be disallowed and accounted nothing worth And the Iustices before whom such Charters shall be alleaged shall enquire of the same suggestions and if they finde them vntrue they shall disallow the Charters and procéede further as the Lawe requireth 5 Because the Commons did complaine in Parliament of the outrages mischiefes and dammages which did come to the Realme by treasons murders rauishments of women commonly done committed and the rather for that charters of pardon were too easily granted thereof and did desire the King that such charters of pardon might no more be granted in those Cases Whereunto the K. did answer that he would yéeld to their petition sauing the prerogatiue and regal authority which his progenitors before that time had And to the intent that the King would be certainely informed before of what offences he did graunt pardon Therefore by a Statute made Anno 13. R. 2. St. 13. R. 1. 1 Stat. 2. the King did graunt with the assent of the Parliament That no Charter of pardon shall be allowed before any Iustice for murder The offences shall be specified in the pardon for the death of a man slaine by awaite assault or malice prepensed treason or rape of a woman vnlesse the same murder death of a man slaine by awaite assault or malice prepensed treason or rape of a woman be specified in the same Charter And if a Charter of the death of a man be alleadged before any Iustice in which Charter it is not specified that hée of whose death any such is arraigned was murdered or slaine by awaite assault or malice prepensed the same Iustices shall enquire by a good Enquest of the visne where the dead was slaine if hée were murdered or slaine by awaite assault or malice prepensed And if they shall find that he was murdered or
slaine by await assault or malice prepensed the charter shal be disalowed and further therein shal be done as the Law requireth which saide stat was after confirmed by the statute of Anno 16. R. 2. St. 16. R. 2. 6 1. Ed. 3. 24 And therefore whereas if a man before this Statute had counterfeited the Kings great or priuy Seale and the King had pardoned him all felonies homicides robberies and other trespasses by the common Lawe his pardon should haue béene allowed and he discharged which sithence would not be allowed vnlesse the treason were specified in the charter of pardon 6 For that many common and notorious Théeues indited of seuerall felonies murders and rapes in diuers countries and vpon the same as well before the Kings Iustices as before the King himselfe being arraigned of the same felonies for the sauing of their liues did in times past become approuers to the intent that in the meane time by Brocage and great gifts bestowed vpon certaine persons they might purchase and obtaine their charters of pardon and then after their deliuerance became more notorious Théeues than they were before for the redresse whereof and to the intent to punish him with discredit and forfeture who pursueth such a charter there was a statute made Anno 5. H. 4. St. 5. H. 4. 2 which doth ordaine Sute for an Approuers pardon That if any man or woman doe desire or pursue or cause to be requested or pursued for any charter of pardon for any felon arraigned of felonie murder or rape which for the safegard of his life doth become an approuer then the name of him or her which pursueth such charter shal be put in the same charter making mention that the same charter is graunted at his request and instance And if he to whom the charter is granted after his deliueraunce becommeth a felon the same person who pursued for his charter shall forfeit a hundred pounds to be leuied to the Kings vse Pardon of the felonie but not of the attainder 7 If a man be attainted of felonie 9. Ed. 4. 28. 11. H. 4. 15 46. Fi. Cor. 124 S. Abiuration 15 and the King doth pardon him all feloniâ—s this is not sufficieÌ„t neither wil it auaile him because in the charter there is no pardon of the attainder As one abiured the Realme for the death of a man and returned againe without the Kings licence and beeing brought to the barre he pleaded the kings pardon and because it made no mention of his aâ—iucaâ—ion which was his attainder it was disalowed If the King do by Act of parliament grant a generall pardon of all felonies except burglarie Co. l. 6. 13 and an offendor is attainted of burglary he shal haue no benefit of this pardon for the offence of burglarie doth remaine notwithstanding the attainder thereof 〈…〉 8 If a man commit felonie and is attainted thereof 8. H. 4. 22. Co. li. 6. 13 if the King do pardon him the attainder and the execution this will not auaile him because the felonie doth yet remaine vnpardoned 22. Ed. 4. 7 28 29 H. 8. Dyer f. 34 9 If the king doe pardon two thrée A ioynt pardoÌ„ to two or thrée or moe men all felonies by them or any of them committed this will not auaile them because felonie is alwaies seuerall though the sequell of the Charter be seuerall yet it shall not make that which in the beginning of the Charter was ioynt to bee seuerall But it is otherwise if the beginning of the Charter had beene seuerall the sequell ioynt 3. H. 7. 15 10 If the King graunt to a man Grant to be quit of escapes of felons that he shal be quit of the escape of prisoners out of his prison beeing there for felonie or Treason yet this will not discharge him of voluntarie escape but onely of negligent escape for voluntarie escape is felonie and the King cannot licence a man to commit felonie but he ought to restraine him of the doing thereof 11. H. 4. 41. 11 Euery prisoner shall take aduantage of a generall pardon graunted by Act of Parliament A generall pardon by Parliament without pleading of it And the court shall giue him the aduantage thereof though he doth waiue and refuse the benefit of the same Act but that is to be intended where the act is general without any exception For if there be any persons excepted in the same pardon graÌ„ted by Act of Parliament 8. E. 4. 7 Pl. com 401 then he ought to plead that he is not any of those which is excepted and that he was not adherent to E. and so must plead to euery point and thing excepted in the said Act of Parliament to the intent to prooue himselfe enabled to enioy the benefit of the said pardon vnlesse in the said Act of Parliament there be mention made that euery person may take aduantage of it without pleading of it And if he that doth plead that pardon be of the same name that any of those is which is excepted in the pardon hee then must in pleading declare the same and shew that he is another man and not he which is excepted in the pardon or otherwise he shall come too late to plead it after And if he plead it before the Iustices in the countrey where the Kings atturney is not present the Iustices shall cause proclamation to be made that if any will speake for the King let him come forth c. 12 The partie whom it doth concerne ought not onely to plead the Kings pardon granted vnto him by his Charter without Parliament but hee must also shew it vnder Seale The Kings pardon must be sheÌ„wed vnder seale for that the custodie thereof belongeth onely to him and to none other And therefore though he will say that he was at another time arraigned of the same felonie at the Kings suit in such a countie where he pleaded the said Charter H. 11. H. 4. 41. and that was allowed which allowance is of Record yet that is no good plea without shewing the Charter But the court of fauour will respite the partie that pleadeth it to bring in the Charter at the day assigned 13 When a man doth plead the Kings pardon of any homicide robberie A writ of allowance of the Kings pardon felonie or other trespasse he ought also to bring with him a writ of allowance testifying that he hath found suretie according to the Statute of anÌ„ 10. Ed. 3. St. 10. E. 3. 3 which hath established That if the King doe grant to any person any Charter of pardon of any homicide robberie or felonie then he to whom the same is granted shall come within thrée moneths next after the making of the same before the Sherife and Coroners of the Countie where the felonie was done and shall find sixe good and sufficient mainpernors for whom the said sherife and
Coroners will answer He that hath a pardon shal find sureties for his good abearing that he from thenceforth shall beare himselfe well and lawfully And the maineprises shal be sealed and returned into the chancerie within thrée moneths after the end of the said thrée moneths And if hée which hath such Charter will ayd himselfe thereby and hath not found such mainprises or after such mainprise found doth beare himselfe otherwise against the peace than he ought his charter shal be accounted void of no force The good behauiour broken after a pardon 14 A prisoner that was indited outlawed of felonie 3. H. 7. 7. pleadeth the Kings pardon of the same felonie and outlawrie but shewed no writ of allowance testifying that he had found suretie in the Chauncerie according to the foresaid Statute of 10. Ed. 3. neither did he make mention in his plea that he had fouÌ„d suretie according to that Statute nor yet did he vouch the Record thereof in the Chauncerie therefore the Iustices had no cause to allow of his Charter of pardon And the same offendor after his pardon graunted was indited before the Iustices of peace of the countie where he dwelt that he did beat and wouÌ„d A.B. against the Kings peace and thereof was conuict before the same Iustices of peace by his owne confession which Record of his conuiction was sent into the Kings Bench by the said Iustices of peace and for that he had borne himselfe otherwise than he ought toward the peace his charter of pardon was adnulled he had iudgement of death and was hanged A pardon must agree with the inditement 15 A Charter of pardon ought to agrée with the Indictment in the name surname and addition of the partie to whom the same Charter is graunted to the intent that he may be knowne to be the same person which is indited or otherwise it is not allowable sauing in some speciall cases As 11. H. 4. 3â— in appeale of death where the plaintife was non-suit after declaration and the defendant was arraigned at the Kings suit vpon the declaration whereunto he pleaded the Kings pardon which did not agrée with the appeale in the name of him that was slaine Where a charter may vary from the indictment nor in the day but agréed with the inditement in the death of the selfe same man to the which inditement this pardon had before time bin pleaded and allowed And for that it may well be intended of the same death séeing one man cannot haue two deaths it was allowed notwithstanding the variance Two men were outlawed in appeale of murder 28. 29. H. 8. Dy. 34. and they purchased their pardon and had a Scire facias against the Plaintife in the appeale and also a Scire facias against the Lords mediate or immediate and the pardon did not agrée with the inditement in the additions but the parties tooke an auerment that they were the same parties which were indited and an exception was taken to the pardon for the words of the pardon were Pardonauimus c. W.B. L.B. omnes omnimodas vtlagarias versus praefatos W.B. L. B. seu versus eorum alterum promulgatas which words in the premisses of the pardon be ioynt where they should haue been Pardonauimus c. W.B. L.B. eorum alteri because that euery felonie is seuerall and for these seuerall felonies they should haue had seuerall pardons And yet the pardon was allowed If a man be indited of felonie by the name of A.B. yeoman and after the King doth pardon him by the name of A. B. gentleman esquire 20. H. 7. Kel fol. 58. knight or c. all manner of felonies he may plead this pardon and auerre that A. B. yeoman and A. B. gentleman or c. be one person and this pardon will discharge him for it may be he was a yeoman at the time of the inditement and after made gentleman by the King or by some office 4. E. 4. 10 16 When after non-suit in appeale the Kings pardon is allowed it is vsed to enter the pardon and alowance vpon the bill of appeale The pardon and alowance entred vpon the appeale and thâ—refore if there be any inditement of the same felonie against the defendant it shalbée good for him to cause these words to be entred and indorced vpoÌ„ the indictmeÌ„t viz. Cesset processus faciendus super indictamentum eo quod defendens acquietatus recessit ab Appello 4. Ed. 4. 10 17 All this matter of pardons is in effect to be referred to indictments because the Kings pardon is no plea to the parties appeale A pardon no plea to an appeale for the felon shalbée put to death notwithstanding that But it is a good plea against the King when the appeale is determined And if it be determined by act in law and not by the act of the partie the pardon shall not be allowed without warning of the partie as in appeal the plaintife doth pursue it vntill he hath outlawed the defendant in this case by the Outlawry the appeale is determined and yet if the king doe pardon the defendant the pardon shall not bée allowed vntill hée hath sued a Scire facias against the party at whose suit he was outlawed And if at the day of the Scire facias returned the partie doe appeare the Appellant may pray execution of him notwithstanding the pardon but if the Appellant be returned warned and doth make default the Charter shal be allowed without further suit Co. l. 50. 100 3. El. Dyer 201 261 The Kings pardon of burning in the hand In an appeale of murder the defendant pleaded not guiltie vpon his arraignment and by the enquest was found guiltie of manslaughter and then prayed and had his Clergie Whereupon by force of the Statute of anÌ„ 4. H. 7. 13. St. 4. H. 7. 13 he being a conuict person ought to bée marked by the Gaoler openly in the Court which marking or burning in the hand the king did and may pardon though it be in an appeale for burning in the hand is no part of the iudgement but onely a meane to notifie to the Iudge vpon an offendors second conuiction that he once before had his Clergie vpon a former conuiction And for that it was ordained by the Statute of anÌ„ 18. El. 6. St. 18. El. 6 That after Clergie allowed and burning in the hand the prisoner shall be forthwith enlarged and deliuered out of prison which act doth extend as well to the case of the Appeale as to the case of an Indictment Therefore the King hauing pardon the burning in the hand the partie was also discharged of his imprisonment 2. R. 3. 8 18 A Scire facias vpon a Charter of pardon may be graunted against an appellant Vpon a pardon a Scire facias against an appellant though the appellée which doth pray it sheweth
not any release of the appellants made vnto him or any such other matter in discharge of the appeale for he shall come time enough to shew that when the appellant doth appeare vpon the Scire facias And the appellée may haue a Scire facias against the appellant though in the Charter there be not this clause viz. ita quod stet rectus in curia Fi. Char. 17 19 An appeale was brought against a principall and accessorie Non-sute doth not aide an appellee that is outlawed the principall was pursued to an Outlawrie whereupon an Exigent was awarded against the Accessorie returnable at a certaine day at which day the Plaintife was Non-suit in his Appeale and then the Principall came with a Charter of Pardon and prayed allowance thereof for that the plaintife was Non-suite which would not bée graunted by the Court for that the non-suit did not ayde him seeing the appeale was determined before against him by the Outlawrie 20 A man beeing arraigned of felonie pleaded not guiltie 8. Ed. 4. 29 and beeing demanded how he would be tried he shewed forth the Kings protection The Kings protection and said that the same was a sufficient discharge for him and would make none other answere whereupon the Iustices agreed that he should be put to his penance viz. to his paine for t dure And yet at another time Fi. Cor. 239 one béeing found guiltie of felonie shewed the Kings Charter which did not containe any pardon but onely that the King had retained him to goe with him into Gascoigne that was allowed and the Iustices did surcease to procéed any further against him Pardon of a felonie before it was committed 21 A. was indicted for that he did the 13. day of February Plo. com 401. anÌ„ 13. ReginÌ„ Eliz strike B. whereof the said B. died the 18. day of Iune then next following A. vpon his arraignmeÌ„t pleaded the generall pardon by Parliament by which all felonies offences misdemeanours c. in the act not excepted which might bée pardoned before and vntill the 14. day of February were pardoned released and discharged against the Quéene and auerred that neither hee nor the said offence were excepted in the said pardon and praied to be discharged And he was discharged by the said pardon for that the wound giuen by the prisoner was the cause of the felonie the giuing of which wound was an offence misdemeanour against the Crowne the which was pardoned by the Act of Parliament and by that meanes all acts ensuing vpon the same offence were pardoned ⧠Standing mute or answering indirectly AT some time he that is arraigned of felonie is so farre both from making confession of the felonie whereof he is indited and also of pleading not guiltie thereunto that hee will make no answer at all but stand mute of malice and euill will or otherwise plead such matter which is no answer to the felonie whereof hée is arraigned or such a peruerse plea which is no direct answer to the offence whereof he is indited Stand mute or not answering directly Or if he doe answer to the offence yet he will so conclude his plea that the same plea can haue no triall Fi. Cor. 233 283 359 4. Ed. 4. 11 Kel fol. 70. In all which cases he shall be put to his penance for contemning the law and refusing of the ordinarie triall deuised by the law that is to say he shall be put to paine grieuous and durable otherwise tearmed to paine fort dure and as it is commonly tearmed he shal be pressed to death Which paine is called grieuous for that it is so heauie and weightie that hée is not able to endure it and it is called durable because the offendor shall neuer haue ease or reliefe of it but shall die in it 2 The paine grieuous and durable was not at the common law but Felons refusing lawfull triall ordained by the Statute of Westminst 1. made anÌ„ 3. Ed. 1. St. 3. E. 1. 12 whereby it was enacted That notorious felons openly knowne of euill name who will not put themselues vpon enquests of felonies which men doe prosecute before the Iustices at the Kings suit shal be put in hard and strong prison as they which refuse to be tried by the law of the Realme But this is not to be intended of prisoners which be taken for light suspition By which Statute it doth appeare that none shal be adiudged to this paine if there be not euident or very probable matter to conuince him of the offence whereof he is arraigned or otherwise that he is a notable théefe or openly known to be of an euil name which the Iudge ought strictly to examine before hee procéed to iudgement against him â—â—nnance onâ—â— vpon an indictment and not vpon an appeale 3 The iudgement of pennance is only to be giuen when a prisoner is arraigned at the Kings suit and not where he is arraigned at the parties suit 21. Ed. 3. 18 for the words of the Statute be and will not put themselues vpon enquests of felonies which men do prosecute before the Iustices at the Kings suit and therefore in an appeale prosecuted at the suit of the party the iudgemeÌ„t of pennance viz. of paine grieuous durable shall not be giuen but another iudgement that is to say that the offendor shal be hanged And an offendor shal haue this iudgement of pennance at the K. suit 40. Ass p. 40 although that suit be begun before his due time viz. within the yeare after the offence committed where the king ought to haue taried vntill the yeres end for the interest of the party who was to pursue his appeale within the yeare Pennance for piracie 4 If a man be indicted and arraigned before Commissioners to heare and determine for Piracie and Robbery committed vpon the sea 7. El. Dyer 242. and he wil stand mute and not answere directly he shall haue iudgement of pennance viz. of painefort dure and that is by force of the statute of Anno 28. H. 8. St. 28. H. 8. 15. which hath ordained That all Treasons Felonies Robberies Murthers and confederacies committed vpon the Sea or in any other Hauen Riuer Créeke or place where the admirall hath or pretendeth to haue iurisdiction shal be inquired heard cried determined and iudged in such shires places in the realme as shal be limitted in the kings Commission or Commissions to be directed for the same in like forme as if any such offences had béene committed vpon the land And such Commissions shal be had vnder the great Seale directed to the Admirall or his Lieutenant and Deputy and to thrée or foure such other as shal be appointed by the Lord Chancelor as often as néed shal require to heare and determine such offences after the common course of the laws of this land vsed for Treasons Felonies Robberies Murthers and
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
murderer was voide and consequently the finding of the flying The diffrence of the Coroners and the Iustices authoritie But if one man be indicted of felonie as principall and another as accessorie after the offence committed before Iustices and the principall is attainted by verdict and the accessorie is acquitte and it is found that hée did flie for the felonie he shall forfeit his goodes for that Iustices assigned haue authority to enquire as well of accessories after the felonie committed as of accessories before the felonie The forfeture for petit larcenie 4 If one be indicted but of petit larceny Fi. Cor. 406 and vpon his arraignement be thereof acquit and it is found that hée did flée for the felonie he shall forfeit his goods And likewise if he be attainted of petit larceny he shall forfeit his goods but not his lands 5 This flying away whereupon the forfeiture of goods doth ensue may be as well where the offendor doth flie before arrest Forfeiture vpon flying before arrest as where he doth flie after arrest as if a man that is vehemently suspected to haue committed a murder or other felonie is attempted to be arrested by the Shirife Coroner or anie others and hée doth flie away and is pursued and because hée will not yéelde himselfe to the Kings peace Fi. Cor. 289 290. 312. and be taken is slaine in the pursuite by those that would haue arrested him or by some others that did come to assist them and that be presented of record before the Iustices hauing authoritie to enquire thereof Forfeiture without attainder In this Case his goodes shall be forfeit to the King although being slaine hée could neither be acquit nor attainted of the felonie whereof hée was suspected And yet if this man had béene taken aliue and that it had béene found that he had fled for the felonie 42. As p. 5. if hée had not also béene indited of the felonie hée should haue forfeited nothing for without an indictment it could not be prooued that a felonie was committed and he could not flie for a felonie if none such were done S. Bra. 30. 22. Ass p. 81 41. Ass p. 13 Co. l. 5. 110 6 If Processe be awarded vpon an appeale or indictment of felonie against any person who doth absent himselfe and not appeare vntill the Exigent shall be awarded against him Forfeiture vpon the Exigent awarded this long absence which is a flieing in Lawe shall cause him to forfeit his goodes although after he be acquit of the felonie And the reason is for that it doth appeare of Record that hée did flie or withdraw himselfe when he absented himselfe vntill the Exigent was awarded against him But if he hath any reasonable excuse of his absence as that he was in prison at the time of the Exigent awarded or beyond the Sea Fitz. forf 19. 31. or such like reasonable excuse then he shall not forfeit his goodes and yet if the Defendant in an appeale were out of prison at the time of the awarding of the Exigent against him and after when the Outlawrie was pronounced against him he was in prison by his imprisonment he may reuerse the Outlawrie but he can not reuerse the awarding of the Exigent which was lawfully awarded against him whereupon the forfeiture of his goods did accrue to the King And the like Lawe is if the King had pardoned the felonie before the Exigent awarded and the offendor had found suretie in the Chauncerie according to the Statute of Anno 10. Edw. 3. 3. yet if the Exigent were after awarded against the offendor 43. E. 3. 18. the offendors goodes should not be forfeited for it doth appeare of Record for what cause the goodes were saued viz. because the felonie was pardoned and therefore the awarding of the Exigent against him vpon an indictment of felonie is reuersable whereupon he should forfeit his goods 7 If an appeale be pursued against two viz. against one of them as principall and against the other as accessorie and the Exigent is awarded against the accessorie 43. Ed. 3. 17 before the principall is outlawed the accessorie shall not forfeit his goodes St. 3. E. 1. 14 though hée did flie for the felony for the Statute of Westminster 1. hath ordained That no person shall be outlawed vpon appeale of commaundement force aide or receipt vntill the principall shall be attainted No forfeiture by the accessorie vntil the principall be attainted And yet the appellor 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 But this is intended of an appeale commenced by Bill and not by Writ for in an appeale by Writ it doth not appeare who is principall and who is accessorie 43. Ed. 3. 17. vntill the appellant hath declared against them Forfeiture notwithstanding apparance and pleading 8 If an Exigent be well awarded against the defendant 43. Ed. 3. 17. and then hée doth appeare and the appellant doth count against him notwithstanding there be a default in the Writte or Count whereuppon the Writte doth abate yet the defendants goodes shall be forfeit for by the awarding of the Exigent the goodes shall be forfeit and no Count which the plaintife can make after shall cause the defendant to haue his goods againe And when the defendant hath appeared and pleaded the processe is determined which processe is the Kings title and thereunto the defendant hath made no aunswer The forfeture of a Clarke conuict 9 A Clarke conuict shall forfeit his goodes viz. he that is indicted or appealed of felonie and thereunto pleadeth Not guiltie and vppon his arraignement doth desire to be tried by his Countrie which findeth him guiltie of the felonie and then hée praieth his Clergie before iudgement of death is giuen against him is called a Clarke conuict He that committeth homicide by misaduenture Pomicide by misaduenture shall forfeit his goodes 4. H. 7. 2. And so shall hée which doth kill a man in his owne defence Killing in his owne defence forfeit his goods And likewise he that killeth himselfe and is felo de se Felo de se shall forfeit his goodes And he that being indited of felonie will stand mute Standing mute not answer directly or challenge peremptorily aboue twentie persons shall forfeit his goodes Forfeiting of a right or action 10 In some cases an offendor shall forfeit a right or a thing whereof hée hath no possession but onely an action or title thereunto As if goodes be wrongfully taken or holden from the possession of the owner and after the owner is attainted of treason or felonie those goodes shall be forfeited to the King 6. H. 7. 9. and the Court of the Kings Exchequer may award processe
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
that all men may kill him without punishment and specially if he defend himselfe or flie away in such sort that he may be hardly apprehended But if he doe not flie or defend himselfe then he that killeth a man so taken shal answere for him as for any other man for that life and death be in the kings hands vnlesse there be a custome to the contrary as in the Counties of Hereford and Glocester And he shal forfeit the benefit of Law for he which being outlawed will be so bold as to returne without the kings licence shall die without law or further examination in iudgement And he cannot appeale others for he hath lost the benefit of law and carieth with him his iudgement vpon his head he can haue no defence so long as the Outlary standeth in force It is vpright iustice that he shal perish without law and iudgement who refuseth to liue according to the law And he shall forfeit his right and possession of all things that he hath gotten or may get And all bonds obligations homages fealties oathes and other contracts made with him be dissolued which can neuer be reuiued but vpon a new contract though he be restored And he shal forfeit all his tenements and hereditaments from him and his heires and euery action that was due to him before his Outlary though he be after restored by the kings pardon And Outlary of felony and euery other iudgement of felony doth dissolue all the gifts sales of land that he made sithence the time of the felony committed The outlawes goods shal be the kings for he cannot be outlawed in any other place but in the kings Court as in the Country Court or in the Hustings of London ⧠Corruption of Blood 1 BY attainder of Treason or Felony commeth corruption of Blood that is to say that the offendors children cannot be heires to him that is attainted nor to any other auncestor Corruption of blood salued by Parliament only And if the offendor were a Nobleman or a Gentleman before by this attainder he is become ignoble and not onely he himselfe but also all his children hauing respect to the Nobilitie which they had by their birth And this corruption of Blood is so grieuous that it cannot bee salued otherwise then by authoritie of Parliament But if the King will pardon the offendor it will cleanse the corruption of blood of those children which be borne after the pardon and they which be borne after the pardon may inherite the land which their auncestor purchased at the time of the pardon or after but so cannot they which were borne before the pardon And also he that is attainted of Treason or Felony shall not bee heire to his father but his disabilitie shall hinder others to be heire so that during his life the land shall rather escheat to the lord of the fée 27. Ed. 3. 77. Fi. Petit. 20 then discend to another But if he that is attainted doe die without issue of his body during the life of his auncestor then his younger brother sister or cousin shall inherite for if the eldest sonne be hanged Fi. Discēt 6. 26. As p. 2. or doth abiure the Realme for Felony during the fathers life it is no impediment but that the youngest sonne may inherite 29. As p. 11 13. H. 4. 8. Fit Discent 17. And if he which is attainted of Treason or Felony in the life time of his auncestor doe purchase the Kings pardon before the death of his auncestor yet he shall not be heire to his said auncestor but the land shall rather escheat to the lord of the fée But if the eldest sonne be a Clerke conuict in the life of his father and after his father dieth in this case he shall inherite his fathers land because he was not attainted of Felony for by the common Law hée should haue inherited after hée had made his purgation And now by the Statute of Anno 18. Eliz. hée shall bee forthwith enlarged after burning in the hand Fi. Cor. 382 St. 18. Eli. 6. and deliuered out of prison and not committed to the Ordinary to make his purgation and so he is in case as if he had made his purgation Where corruption of blood shall preiudice tenant by the courtesie 2 If a man that hath land in the right of his wife haue issue 13. H. 7. 17 and doth commit Felony for the which he is attainted and the king doth pardon him in this case if his wife doe die before him he shall not be tenant by the courtesie for the corruption of blood of that issue But it is otherwise if he hath issue after the pardon for then he shall be tenant by the courtesie although the issue which he had before the pardon be not inheritable The eldest sonne attainted of felony during his fathers life 3 If a man seised of lands hath issue two sonnes 32. H. 8. Dyer 48. and the eldest is attainted of Felony in the life of his father and is executed for the felony or otherwise dieth during the life of his father and after the father dieth seised of the land the land shal discend to the youngest sonne as heire to his father if the eldest sonne hath no issue then liuing But if the eldest sonne that was attainted hath any issue in life which should haue inherited but for the attainder the land shall escheat to the lord and not discend to the younger brother for that the blood of the eldest brother is corrupted Where an attainder but n◠corruption of blood 4 S. Forfeiture 27 That the attainder of Treason or Felony in certaine cases shal not extend to make any corruption of blood the disinheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other then of the offendor or offendors during his or their naturall liues only ⧠Restitution of stolne goods 1 HAuing written of Robberies and other Felonies and declared how Felons are to be prosecuted by Arrest Appeale Indictment Arraignment Tryall and Iudgement and what they shall forfeit I meane now to shew how true men whose goods were robbed stoln or feloniously taken from them by such Felons shall be restored to their goods againe As it is necessary for the Commonwealth that Felons should be punished least the impunity of some should incourage them and also allure others to commit the like offences so is it fit that they chiefely whose goods were taken from them and therby haue tasted the smart and receiued the losse by the Felons and are more likely to know who they be and where they be then others are should doe their vttermost endeauor to procure those Felons to be apprehended brought to their answers and to haue them punished according to their demerits that is to say he that was robbed What is fresh suit or whose goods were stolne from him ought presently after the
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
be graunted vpon an inquiry according to the stat of West 2. So that if the abettors be not distrainable the def in an appeal shal be without any remedy And further the damages which the abettors are to pay by force of the said statute of West 2. be the dammages that the defendant hath recouered against the appellant which dammages the abettors are to pay for the defendant or for his insufficiencie or nonabilitie and not for themselues And so it may be said that they may satisfie for themselues in a writ of Conspiracie to be brought against them or otherwise their offence shal be vnpunished Conspiracy maintenable vpon acquitall in an appeale or indictment And therefore notwithstanding the said statute of West 2. a Writ of Conspiracie doth lye at this day as well where the defendant is acquited vpon an appeale as where he is acquited vpon an Indictment And accordingly there is a Writ of Conspiracie in the Register deuised for that purpose 33. H. 6. 2. 40. Ed. 3. 42 22. As p. 39 14. H. 7. 2. amongst other Writs of Conspiracie But in an appeale founded vpon an indictment if the defendant be acquite vpon the appeale he shall not haue a Writ of Conspiracie because it cannot be intended to be founded vpon malice when it is founded vpon an Indictment And likewise if an Appeale be founded vpon an Indictment although the appellant be Non-sute after declaration and the defendant be arraigned and acquite at the Kings suit yet the defendant shall not haue a Writ of Conspiracy causa qua supra 3 He against whom a Writ of Conspiracie is to be brought The indictment must be false which giueth the writ of Conspiracy must be charged that he conspired with others to indict the plaintife falsely and maliciously without any good or lawfull cause 22. As p. 77 Fi. Cōsp 21. 24. or els the Writ will not lye and therefore if by the conspiracie of two or moe one is indicted of Murther and vpon his arraignement it is found that he did kill the man in his owne defence or by misaduenture or by any other meanes which by the Law is iustifiable he shall not haue a Writ of Conspiracie for the Indictment was framed vpon good cause viz. the death of a man and neither vpon falsehood or malice and in like sort if he that is indicted or appealed of Felony doth purchase his Charter of Pardon thereof and pleadeth it he shall not haue a Writ of Conspiracie for by that pardon sued he doth in a sort confesse the committing of the felonie and so cléere the falshood or malice of any which did deuise to indite him And yet notwithstanding the obtaining of his pardon he may waiue it and plead not guiltie and then if he be acquit of the felonie he may haue his writ of conspiracie 11. H. 4. 40. 7. E. 6. Dyer 85. 28. H. 8. Dyer 28. But if the pardon be by act of Parliament he cannot waiue it for the Iustices ought to allow him his pardon without pleading of it if it be a generall pardon 33. H. 6. 2 4 If two be indited or appealed of felonie the one as principall A conspiracie doubtfull and the other as accessorie and the principall hath his charter of pardon or doth die before he be attainted the accessorie shall not haue a writ of conspiracie against the parties that sued the appeale or deuised to indite the principal and him for that it is not yet discussed but standeth indifferent whether the conspiracie were false or true 21. E. 3. 17 7. H. 4. 31. 27. Ass p. 12 30. Ass p. 21 22. Ass p. 77 5 If after a conspiracie for an inditement agréed vpon The conspirators doe become indictors to be preferred by two or more the same conspirators be sworne vpon an Enquest to enquire of felonies and they with the residue of the Enquest that be sworne with them do indict him of felony against whom they did before conspire in this case he shall not haue a Writ of Conspiracy against them because it cannot be intended false and malicious when they did it by vertue of their oathes and also did it with others besides themselues And the same Law is if after the conspirators be sworne vpon the Enquest of inquirie and haue spoken and conferred with their companions the Iustices shall remooue them from the Enquest yet in that they were once sworne and the conspiracie thereby discharged this remoouing them from the Enquest which commeth after 20. H. 6. 5. 35. shall not make them to bée againe in danger and charge of the Writ of Conspiracie And so it is of a Iustice of Peace A Iustice of peace he shall not be charged by a Writ of Conspiracy for any thing which he doth in open Sessions as a Iustice of Peace 27. Ass p. 12 12. E. 4. 18 21. E. 4. 67. 47. Ed. 3. 17. for he is a Iudge of record and sworne to execute his office duly and may informe for the kings benefit and to punish offendors as well as he can But the Law is méere contrary if one who is no Iustice of record doth it for he shal be charged by a Writ of Conspiracy if he do it with others And in like sort 35. H. 6. 14. 27. As p. 12 20. H. 6. 5. 9. H. 4. 11. 21. H. 7. Kel 81. if one doth come into the Court A giuer of Euidence and discouereth a felony and is sworn and doth giue euidence to the Enquest he shall not thereupon be charged in conspiracie if he doth not before conspire with others falsely and maliciously In a writ of Conspiracy the def pleaded that when the Iurors had taken their oathes vpon the indictment he was sworn to informe them But because an act done by him only without others cannot be said to be any conspiracy 35. H. 6. 14. 27. As p. 12 and so was no answer to that wherewith the plaintife charged him for that cause he wayued his plea and pleaded not guilty for he that is to be charged with a conspiracy must be charged in respect that he did it with others and falsely and maliciously Who be conspirators 6 And for that it might be knowne to all men whom the Law did construe to be conspirators and were worthy to be punished as conspirators Therefore there was a stat made An̄ 33. Ed. 1. which defineth them in this manner viz. St. 33 E. 1. Conspirators be they which bind themselues by oath couenant or other alliance that euery one shall helpe and maintaine others purpose falsely and maliciously to indict or to moue and maintaine suites and also that cause infants to appeale others of felony whereby they are imprisoned and much grieued and such as retaine men in the country with liueries or fées to maintaine their leud enterprises and to subuert the truth as wel the takers as the giuers
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
guiltie thereunto if the Coroner doth record that he did at another time confesse it before him And if an Approuer Approuer to prolong his life doe appeale others where there be none such and that bee testified by the Coroner the Approuer shall be hanged 25. Ed. 3. 24. without further enquirie of the approuement Who ought to appeare vpon the Coroners inquisition 12 By the Statute of Marlbridge made Anno 52. H. 3. St. 52. H. 3. 24. it was ordayned That vpon an inquisition to be taken by a Coroner of the death of a man euerie one of the age of twelue yeares ought to appeare except they haue a reasonable excuse of their absence The Coroner may take appeals 13 And though the foresayd Statute of Officium Coronatoris doe make mention but of certaine Appeales as â—n Appeale of Rape Mayhem c. yet the Coroner with the Sherife hath authoritie to take Appeales of Robberie and other Felonies and also to take the Appeale of an Approuer in this sort and manner following viz. he may take an Appeale of Robberie or other felonie committed in the same countie where he is Coroner and not elsewhere But he may take the Appeale of an Approuer of an offence committed in any countie of England and the reason of this difference is because by the approuement the Approuer is attainted of Felonie but so is not the offendor in the other case and therefore if in the former case he should receiue such an Appeale of Robberie Fitz. Cor. 437. or other Felonie it could not be tryed by a Iury of the countie where he is Coroner for that the felonie was committed in a forrein countie And yet in the foresaid case of approuement in another countie the Coroner cannot award Proces thereupon but he must enter it into his roll and send it to the Iustices of Gaole deliuerie Fitz. Cor. 462. who shall award Proces vnto the Sherife of that forreine countie to apprehend him which is so appealed And as the Coroner may take the Appeale of an Approuer in another countie so vpon the same reason he may take the abiuration of one which hath confessed a felonie committed by him in another countie Fitz. Cor. 416. 14 If the Coroner shall find any person drowned in a daungerous pond or pit he must commaund the towne where the same pond or pit is to stop it vp Stopping vp a place of danger and enter the same his commandement into his Roll And if after it bée found before the Iustices in Eire that the same pond or c. is not stopped vp the whole towne where it is shal be amerced 15 Though there be diuers Coroners in a Countie Where the presence of all the Coroners is requisit and where but of some one of them yet it is not requisit to haue more than one to enquire vpon the sight of a dead bodie And in like sort one is sufficient to giue iudgement vpon an Outlawrie 14. H. 4. 35 39. H. 6. 41. and in Redisseisin it is sufficient to haue two Coroners But where Proces is to bee awarded to the Coroners in default of the Sherife there all the Coroners within the Countie ought to serue or otherwise it is not good for they execute that office as ministers and not as Iudges as they doe in other cases And by the statute of Anno 23. H. 6. St. 23. H. 6. 11. euery of the Coroners shall bée present in his proper person at the assessing of the wages of the Knights of the same Shire for the Parliament with the Sherife Vndersherife Baylifes and others that will be present to assesse the wages of the sayd Knights after the deliuerance of the Kings writ De solutione feodi Militum Parliamenti and proclamation thereof made vpon paine of forfeiture of euery of them making default xl sÌ„ to the King St. 1. 2. P. M. 13. 16 By the Statute made Anno 1. 2. P. M. it is ordained The Coroner must record the euidence and bind the parties to giue it That euery Coroner vpon any inquisition before him found whereby any person shall bée indicted for murder or maÌ„slaughter or as accessory to the same before the murder or manslaughter committed shall put in writing the effect of the euidence giuen to the Iurie before him being materiall And he hath authoritie to bind all such by Recognisance or Obligation as doe declare any thing materiall to prooue the sayd murder or manslaughter or to be accessorie to the same to appeare at the next generall gaole deliuerie to be holden within the countie citie or towne corporat where the tryall thereof shall be then and there to giue euidence against the partie so indicted at the time of his tryall and shall certifie as well the same euidence as such bond in writing which he shall take together with the Inquisition or Indictment before him taken and found at or before his sayd tryall to be made And if any Coroner shall offend in any thing to the contrarie then the Iustices of gaole deliuerie for the Shire Citie Towne or place where such offence shal be committed vpon due proofe thereof by examination before them shall for euerie such offence set such fine on such Coroner as they shall thinke méet Inquirie of a man slaine within the K. house verge 17 Forasmuch as heretofore many felonies that haue béene committed within the Verge haue béene vnpunished because the Coroners of the county haue not béene authorized to inquire of felonies done within the Verge but onely the Coroner of the Kings house which neuer continueth in one place by reason whereof there can be no triall made in due manner nor the selons put in Exigent nor outlawed nor nothing presented in the Eire which hath beene great damage to the King and to the hindrance of his peace For the redresse whereof by a Statute made Anno 28. Ed. 1. St. 28. E. 1. 3 intituled Articuli super chartas it was ordained That if the death of a man where the Coroners Office is to make view and Enquest doth chaunce in any countie where the Kings house is and within the Verge the Coroner of the same countie shal be commanded with the Coroner of the Kings house to execute his office and to inroll it And that thing which cannot be determined before the Steward shall bee committed to the common law so that Exigents Outlawries and Presentments shal be thereupon made to the Iustices in their circuits by the Coroner of the countie as well as of other felonies done out of the Verge Neuerthelesse they shal not omit by reason hereof to make attachmeÌ„ts freshly vpon the felonies done Which foresaid statute for so much thereof as doth touch or concerne the K. house onely is in part altered by the statute of Anno 33. H. 8. St. 33. H. 8. 12. whereby it is ordayned Inquirie if a
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
take reward of any who will fréely licence all persons to prosecute their right giue full eare to the widowes complaint further the cause of the orphan and fatherlesse and suffer none that hée can helpe to receiue wrong who will not feare the countenance of the mightie nor disdaine the basenesse of the poore whom neither hatred fauor or priuat affection will moue but without respect of persons will yéeld to each wight that which his cause requireth who will remember and neuer forget that God hath endowed him with knowledge and vnderstanding Ecclesiast 17 that he hath made a couenant with him to shew him what true iustice and iudgement is that all his actions bée continually in Gods sight and that euerie moment from heauen the King of Kings doth behold them And finally who duely respecting both the commissions which he hath receiued from God and his prince will so indifferently temper iustice with mercie towards the poore prisoner standing trembling before him at the barre as he will hope for mercie when himselfe shall make his last and great account before the God of iustice and mercie 2 Whereas diuers antient Prerogatiues and Authorities of iustice appertaining to the Crown of this Realm were seuered and taken from the same by sundrie gifts of the Kings Progenitors Kings of this Realme to the great diminution of the royall estate of the same and to the hindrance and delay of iustice St. 27. H. 8. 25. for the reformation whereof by a Statute made Anno 27. H. 8. it was enected That no person or persons of what estate condition None shall make Iustices but the King or degree soeuer they bée shall haue any power or authoritie to make any Iustices of Eyre Iustices of Assise Iustices of Peace or Iustices of Gaole deliuerie but that all such Officers and Ministers shall bée made by Letters Patents vnder the Kings great Seale in the name and by authoritie of the King and his heires Kings of this Realme in all Shires Counties Counties Palantine and other places of this Realme Wales and the Marches of the same or in any other his Dominions at their pleasure and wills in such maner and forme as Iustices in Eyre c. bée commonly made in euerie Shire of this Realme Any graunts vsages Acts of Parliament or other thing notwithstanding The Iudge vpon the arraignment of a Péerâ—e of the Realme 3 When a Péere of the Realme and Lord of the Parliament 1. H. 4. 1â— 13. H. 8. 13. 10. Ed. 4. 6. is to be arraigned vpon any Treason or Felonie whereof he is indicted and whereunto he hath pleaded not guiltie the King by his letters patents shall assigne some noble and sage Lord of the Parliament to bee high Steward of England for the day of his arraignement who before the same day shall make a Precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him xviij or xx Lords of the Parliament vpon the same day c. S. Triall 2. 4 Where Treasons Misprisions of Treasons Murders Manslaughters and other malicious strikings by reason whereof blood hath béen shed against the K. peace were often committed within the limits of the Kings palace or house or other houses where his Maiestie was abiding in his royall person which offences when they be done be best knowne by his Highnesse Officers of his houshold and by his seruants of his Checke roll And if his Maiesty shall happen to remoue from such his palace or house or other house where such offences were done before the tryall and determination thereof then such offences might not lawfully be tryed heard and determined by and before the sayd Officers but bée remitted to bée tryed and determined by the order of the Common law by reason whereof the punishment of the sayd offendors in such cases hath beene long time delayed and sometime their offences forgotten and not remembred and so they escaped vnpunished For the redresse whereof by a Statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 12. That all Treasons Misprisions of Treasons Murders Manslaughters Bloudsheds and other malitious strikings by reason whereof bloud shall be shed against the Kings peace which shall bée done within any the Palaces or houses of the King or his heires or within any other house or houses at such time as his Maiestie shall bée then abiding in his royall person shall bee inquired of tryed heard and determined within any of the Kings houses or other house where his Maiestie shall bée abiding Iudge of treasons and felonies committed in the K. house before the Lord Steward of the Kings houshold and in his absence before the Treasorer and Comptroller of the K. houshold and Steward of the Marshalsey for the time beeing or two of them whereof the Steward of the Marshalsey to bee one by vertue of their offices without any Commission or other authoritie to them giuen And whether the King shall bée remooued from the house where such offences shall bée done or not before they be inquired of heard and determined yet such offences shall be inquired of tryed heard and determined before the Kings Officers of his houshold before named or two of them by the Inquisition and verdict of his houshold seruants in his Checke roll at such Palace or house where his Maiestie shall bée at any time abiding in manner and forme as is hereafter expressed The two Clerkes Comptrollers Clerkes of the Checke and Clerkes Marshals for the time being of the K. houshold or one of them vpon a Precept to them or any of them made by the Lord Steward or in his absence by the said Treasorer and Comptroller of the Kings houshold and the said Steward of the Marshalsey or by two of them whereof the sayd Steward of the Marshalsey to be one shall haue power to summon warne and returne the names of twentie foure persons being yeomen officers of the Kings sayd houshold in the sayd Checke roll to inquire of such Treasons Misprisions of Treasons Murders Manslaughters and other malitious strikings by reason whereof bloud shall bée shed against the Kings peace before the sayd Lord Steward and in his absence before the sayd Treasorer Comptroller and Steward of the Marshalsey or before two of them at the least whereof the Steward to bée one And it shall bee lawfull to the sayde Lord Steward and in his absence to the sayd Treasorer Comptroller and Steward of the Marshalsey aforesayd or two of them whereof the sayd Steward to bée one before whom such Returnes shall bée so made as is aforesayd to cause such number of the sayd foure and twentie persons so returned aboue the number of twelue persons as to him or them shall séeme expedient to inquire of such Treasons Misprisions of Treasons Murders Manslaughters or other malitious strikings by reason whereof bloud shal bée shed against the Kings peace
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
enacted That the wife or heire of any person murdered or slaine Iudges in appeale of murder or manslaughter as case shall require may commence their Appeale in proper person at any time within the yere after the felony done before the Sherife Coroners where the said felonie and murder was done or before the King in his Bench or Iustices of Gaole deliuerie 9 To the intent to inable the Iust Iustices of Nisi prius Iudges in felonie treason of Nisi prius to giue iudgement of such persons as be either attainted or acquit of treason or felonie by a stat made an 14. H. 6. it was established St. 14. H. 6. 1 That the Iust before whom Enquests Inquisitions and Iuries shal be taken by the K. writ of Nisi prius according to the form of the stat thereof made shall haue power of all the cases of felony and of treason to giue iudgement Though this stat of 14. H. 6. doth giue authoritie to Iustices of Nisi prius to giue iudgement as wel vpon acquital 10. Ed. 4. 14 as vpon attainder of treason or felonie notwithstanding if in an Appeale the defendant bée acquit before them they cannot award damages against the plaintife Awarding of damages and inquiring of abettors nor inquire of abettors for their power by this stat extendeth but to treason and felonie onely wherof they may giue iudgement and of nothing else for the awarding of damages and inquiring of abettors doth yet remaine as it was at the common law St. 33. H. 8. 23. 10 By the stat of Anno 33. H. 8. it is ordained Iudges of murders by speciall commission That if any person or persons being examined before the K. Counsell or thrée of them vpon any maner of murders do confesse any such offences or that the said Counsell or thrée of them vpon such examination shall thinke any person so examined to bée vehemently suspected of any murder then in euery such case by the kings commandement the K. Commission of Oyer and Terminer vnder the great Seale shal be made to such persons and to such Shires or places as shal be appointed by his Highnesse for the spéedie tryall conuiction or deliuerance of such offendors which Commissioners shall haue authoritie to inquire heare and determine all such murders within the Shire and places limited by their Commission by such good and lawfull persons as shall bee returned before them by the Sherife his minister or other hauing power to returne writs proces for that purpose in whatsoeuer other Shire or place within the K. dominions or without such offences were cōmitted But Péers of the realme being indicted of the said offence shall be tried by their Péeres This stat was also made for the triall of treasons and misprision of treasons by speciall commission But by the stat St. 1. 2. P. M. 10. of an 1. 2. P. M. it was enacted That all trials to bee made for any treasons shal be only vsed according to the course of the common law 11 Where Traitors Pirats Théeues Robbers Murderers and confederators vpon the Sea many times escaped vnpunished because the tryall of their offences hath heretofore béene ordered iudged and determined before the Admirall or his Lieutenant or Commissarie after the course of the Ciuile lawes the nature whereof is that before any iudgement of death can be giuen against the offendors either they must plainly confesse their offences which they will neuer doe without torture or paines or else their offences must be so plainely and directly prooued by witnesses indifferent such as saw their offences committed which cannot bée gotten but by chaunce at few times because such offendors commit their offences vpon the Sea and many times murder and kill such persons being the ship or boat where they commit their offences which should bée witnesse against them in that behalfe and also such as should beare witnesse bee commonly Mariners and shipmen which because of their often voyages and passages vpon the Sea depart without long tarrying and protracting of time to the great costs and charges as well of the King as such as would pursue such offendors For reformation whereof by a Statute made Anno 28. H. 8. it was enacted That all Treasons St. 28. H. 8. 15. Felonies Robberies Murders and Confederacies committed in or vpon the Sea or in any other Hauen Riuer Créeke or place where the Admirall or Admirals haue or pretend to haue power authoritie or iurisdiction shall bee inquired tryed heard determined and iudged in such Shires and places in the Realme as shall bée limited by the Kings Commission or Commissions to be directed for the same in like forme and condition as if any such offence or offences had beene committed or done in and vpon the land And such Commissions shall bee had vnder the great Seale directed to the Admirall or Admirals Iudges in piracie where the Admirall hath iurisdiction or to his or their Lieutenant Deputie and Deputies and to three or foure other such substantiall persons as shall bee named or appointed by the Lord Chauncellor for the time being from time to time and as oft as néed shall require to heare and determine such offences after the course of the common lawes of this land vsed for Treasons Felonies Robberies Murders and Confederacies of the same done and committed vpon the land within the Realme And such persons to whome such Commission or Commissions shall bee directed or foure of them at the least shall haue authoritie to inquire of such offences and euerie of them by the othes of twelue good and lawfull inhabitants of the Shire limited in their Commission in such manner and forme as if such offences had beene committed vpon the land within the same Shire And euerie Indictment found and presented before such Commissioners of any Treasons Felonies Robberies Murders Manslaughters or such other offences committed or done in or vpon the Seas or in or vpon any Riuer Hauen or Creeke shall be good and effectual in the law And if any person or persons happen to be indicted for any such offence done vpon the Seas or in any other place aboue limited then such order Proces Iudgement and execution shal be vsed had done and made to and against euerie such person and persons so being indicted as against traitors felons and murderers for treason felonie robberie murder or other such offences done vpon the land as by the law of this Realm is accustomed And the trial of such offence or offences if it be denied by the offendor or offendors shal be had by xij lawfull men inhabited in the Shire limited in such commission which shall be directed as is aforesaid No challenge for the hūdred and no challenge to be had for the Hundred And such as shal be conuict of any such offence or offences by verdict confession or proces by authoritie of any such commission shall haue
and suffer such pains of death losses of lands goods and cattels as if they had béen conuicted of any treasons felonies robberies or other the said offences done vpon the land without benefit of Clergie or Sanctuarie Prouided alwayes that this Act shall not extend or be preiudiciall to any person or persons for taking of any victuals Taking things vpon necessitie gables ropes anchors or sayles which any such person or persons compelled by necessitie taketh of or in any ship which may conueniently spare the same so the same person or persons pay out of hand for the same victuall gables ropes anchors or sayles mony or mony worth to the value of the thing so taken or doe deliuer for the same a sufficient bill obligatorie to bée payd in forme following viz. if the taking of the same things bée on this side the straits of Marrok then to bée payd within foure monethes and it beyond the said Straits then to be paid within twelue monethes next ensuing the making of the sayd bill And that the makers of the sayd bils well and truely pay the same debt at the day to be limited within the said bills Prouidâ—d alwayes Commissions directed into the fine ports that whensoeuer any such Commission for the punishment of the offences aforesayd or of any of them shal be directed or sent to any place within the iurisdiction of the fiue Ports that then euery such Commission shall bee directed vnto the Lord Warden of the sayd Ports for the time being or to his deputie and vnto thrée or foure such other persons as the Lord Chauncellor for the time béeing shall appoint And that when any Commission shall be directed vnto the fiue Ports for the inquisition and tryall of any of the offences expressed in this Act that euerie such inquisition and tryall to be had by vertue of such Commission shall be made and had by the inhabitants in the said fiue ports or the members therof Any thing in this Act to the contrarie notwithstanding So much of this stat as concerneth the triall of treasons is altered by the stat of Anno 1. 2. P. M. 10. and the same made triable onely by the course of the common law St. 18. E. 3. 2 12 The Iustices of peace of euery county by vertue of the K. commission to them directed and by force of the stat of Anno 18. Ed. 3. be Iudges in felonie Iust of peace Iudges in felonie and haue authoritie to heare and determine felonies the words of which stat be these viz. Two or thrée of the most worthy men of counties shal be assigned kéepers of the peace by the K. commission and at what time need shall bée the same with otherwise and learned in the law shall be appointed by the K. commission to heare and determine felonies and trespasses done against the peace in the same county and to execute punishment reasonably according to law reason and the maner of the fact And the words of the kings commission which doth authorize Iustices of peace to be Iudges of Felonie and to heare and determin felonies amongst others be these viz. Iacobus Dei gratia Angliae The words of the commission of the peace Scotiae Franciae Hiberniae Rex fidei defensor c. Praedilectis A. B. C. D. E. H. c. Salutem Sciatis quod assignauimus vos quoslibet duos vel plures vestrum Quorum aliquem vestrum A. B. C. D. vnum esse volumus Iustitiarios nostros ad pacem nostram in comitatu nostro Buckingham conseruandam ad inquirendum per sacramentum proborum legalium hominum de comitatu praedicto per quos rei veritas melius sciri poterit de omnibus omnimodis felonijs transgressionibus c. ac de omnibus singulis alijs malefactis offensis de quibus Iustitiarij nostri pacis legitimè inquirere possunt aut debent per quoscunque aut qualitercunque in Comitatu praedicto factis siue perpetratis Vel quae in posterum ibidem fieri vel attemptari contigerit c. Et ad omnia singula Felonias c. indictamenta praedicta ceteraque omnia singula praemissa secundum leges statuta Regni nostri Angliae prout in huiusmodi casu fieri consueuit debuit audiendum terminandum And though it doth plainely appeare by the words of the foresayd Commission that the King doth giue authoritie to Iustices of Peace to inquire of heare and determine all manner of Felonies viz. as well of such as bée made Felonies by Statute as of such offences as were Felonies by the Common law yet because there hath béene a scruple and question moued by some that the foresaid Statute of Anno 18. Edw. 3. did meane and was to bee expounded to giue authoritie to Iustices of Peace to inquire of heare and determine those felonies onely which were at the time of the making of that Statute felonies viz. That were felonies by the Common law and not to giue them authoritie to inquire of heare and determine those offences as felonies which were made felonies by seuerall Statutes ordained sithence that time and that the Kings Commission authorised by that Statute did giue them no further authoritie than that Statute meant Therefore not to adde to the law but to satisfie euerie reader and to make that thing more plaine and perspicuous to all men which to some did séeme doubtfull the makers of the stat of anno 8. El. 3. touching the transporting of shéepe and of the stat of anno 25. H. 8. 6. ordained against buggery and of the stat of anno 18. H. 6. 19. established to punish Souldiers that depart from their Captains without licence and of the stat of an 39. El. 4. an 1. Iac. 7. touching dangerous and incorrigible rogues and of the stat prouided an 39. El. 17. against wandering souldiers and mariners and of the stat of an 22. H. 8. 11. established against the cutting downe of powdike and of the stat of an 43. El. 13. enacted against the carrying away of any persons against their wils out of Cumberland Northumberland Westmerland or the Bishopricke of Durham did by speciall words ordaine that the I. of the peace of the counties wherein any of the foresaid seuerall offences were committed should haue authoritie at their generall Quarter Sessions to inquire of heare and determine the said offences And the like authoritie was giuen by the said seuerall stat to the Iust of Assise and Iust of Gaole deliuerie to inquire of heare and determine the said offences in the counties where the same were committed within their seuerall commissions And by the stat of an 1. E. 4. it waâ— ordained That the I. of peace of euery county St. 1. E. 4. 2 shal haue authoritie and power to arraigne and deliuer all person and persons indicted or presented befor the Sherifes Vndersherifes their Clerks Bailifs or Ministers
or any of them in their Turnes or Lawdayes And as of other felonies 3. H. 7. 5. 5. E. 6. D. 69 9. H. 4. 1. so I. of peace may inquire of murder Murder because wilfull murder is felony But Iust of peace cannot inquire of treason Treason for neither the before mentioned stat of 18. E. 3. nor the words of their commission do authorise them so to do The Lord of a Mannor Iudge in felonie 13 There be some that haue libertie of Soc and Sac Tol and Them Bracton de Corona cap. 35. 2. R. 3. 10. Infangthéefe and Outfangthéefe these in their own courts may giue iudgement of him who is found within their liberty possessed of any manifest theft as if he be hand hauing and back bearing and that Sathaber viz. he whose the goods be do pursue him Kel fol. 150 for vnlesse he be in possession of the goods though another doth pursue him as a théefe yet that Court Hundred or Wapentake cannot hold plea of such a theft nor make inquirie by the Countrey whether such a man which was not possessed of the goods bee culpable or not Neither shall any wage battell without possession It is called Infangtheefe Infangthéefe where a Theefe is taken possessed of goods stolne within any such Manor or Libertie who is commorant and dwelling within the same libertie and one of the said Lords owne people Outfangthéefe Outfangthéef is a théefe that is a stranger comming from some other place into the Mannor of the Lord who hath such a libertie and is there taken with the manoure And yet he that hath such a libertie cannot fetch one of his owne people who hath committed larcenie out of his libertie and bring him into his libertie and iudge him there according to his libertie for euery person must receiue the punishment of the law where he hath offended the law But he may giue iudgement as well against his own people as against strangers committing larcenie that be taken within his libertie 46. Ed. 3. 15 14. H. 4. 15 And in this libertie of Infangthéefe and Outfangthéefe and in waife and stray and wreck of the sea a man may prescribe but so he cannot do in goods of felons and fugitiues for they do belong to the Crowne and cannot passe without the Kings graunt Fitz. Prescription 65 14 The custome of some countrey is such A felon first executed and then iudged that if one hath committed burglarie or other felonie and he be pursued by huy and cry from towne to town and so taken flying he must be beheaded in the presence of the inhabitants of foure townes and so by the vsage of that countrey he is accounted a felon And this must be recorded in the Coroners roll and after the Coroner must present it before the Iustices and they will adiudge him a felon And so he must be first put to death and after iudged a felon FINIS ⧠The generall Titles of this Booke 1MEnace Assault Batterie Jmprisonment Maiheming 2 Riots Routs vnlawfull and rebellious Assemblies 3 Force and Forcible Entries and Forcible detaining of possessions 4 Forgerie 5 Periurie and Subornation of Witnesse 6 Maintenance Champertie Embracerie 7 Deceit Couin Collusion Fraud 8 Extortion Exaction 9 Oppression 10 Treasons 11 Homicides 12 Felonies by the common Law 13 Felonies by Statute 14 Principall and Accessorie 15 Breaking of Prison and Rescous 16 Escapes of Felons 17 Pursute by Huy and Cry 18 Appeales of Felony 19 Jndictments 20 Mainprise and Bayle 21 Confession of the offence 22 Approuer 23 Sanctuarie and Abiuration 24 Pleading not guilty 25 Triall of the plea of not guilty by Battell 26 Triall by Peeres 27 Triall by the Countrey 28 Challenges 29 Euidence 30 The Verdict 31 Clergie 32 The Kings Pardon 33 Standing mute or answering indirectly 34 Judgement and Execution 35 Forfeitures for Treason or Felony 36 Corruption of Blood 37 Restitution of stolne goods 38 Dammages in an Appeale 39 A Writ of Conspiracie 40 The Coroner and his authority and dutie in Felonies 41 Who shall be Judge in Treason and Felonie ⧠A briefe effect of euery Braunch or Chapter in this Treatise Menace Assault Batterie Imprisonment Maiheming Fol. 1. 1 THe euill fruits of menaces Menacers shal be imprisoned The enormitie of libelling and defaming 2 The differences of Menacing Assault and Batterie 3 The declaration in trespas of menacing A rebuke accounted a Menace or Assault 4 Menacing a seruant wherby he departeth out of seruice 5 Menacing a tenant whereby he departeth from his tenancie Menacing of a Lords Freeholder 6 Menacing which is iustifiable 7 Menacing by going or riding armed 8 Wearing of a priuie coat a Menace 9 Labourers shall weare no weapons to preuent Menaces 10 Assurances made by Menace 11 What is an assault What is a batterie 12 Iustifying of beating in his owne defence Barre in trespas of Assault and Batterie 13 Iustifying of beating in defence of others The mastâ—rs remedy for beating of his seruant 14 Batterie in defence of his goods Battery in defence of his land lease or way 15 Batterie in resisting of a Iustice of Peace 16 A Schoolemaster beateth his Sholler 17 A Master beateth his Prentice 18 Beating of a man that is franticke 19 Beating of one that will not yeeld to arrest 20 Beating of a seruant departing out of seruice Beating of a Ward 21 Commaundement of Batterie 22 Battery or hurting at some exercise or disport 23 Battery by whipping of a vagabond Punishments by the order of Law 24 Battery for disobeying of a writ or warrant 25 Arresting one in a Church that is doing diuine seruice 26 Disturbing of a Preacher in his Sermon 27 Chiding in a Church or Churchyard Smiting in a church or churchyard Drawing or smiting with a weapon in a Church or c. 28 Drawing of blood within the kings palace 29 Assaulting one which commeth to the Parliament Assaulting the seruant of a Parliament man The liberty of the Clergie at a Conuocation house touching assaults 30 Assaulting a Iudge or Iuror Striking in time or place of iustice 31 Arresting by watchmen 32 Trespas for a battery before Outlawrie 33 A man first indicted for batterie and after sued for the same 34 What imprisonment is Voluntary consent no cause of imprisonment 35 Imprisonment by the commandement of the king or his Iustices c. 36 Imprisonment for notorious and grieuous offences 37 Imprisonment for offences done vi armis 38 Imprisonment for Riots 39 Imprisonment for holding land with force 40 Imprisonment of one that is pursued by huy and cry 41 Imprisonment of him that doth breake the peace Arresting of suspected persons 42 Imprisoning of him that doth attempt to rob 43 Assisting him to arrest that hath a warrant 44 Breaking of a house to arrest in what case lawfull 45 The shirife doth arrest and doth not returne his writ 46 Arresting vpon suspition of felony Causes of suspition of felony
47 Arresting vpon doubt of Manslaughter 48 A Iustice of peace his Warrant to arrest a felon 49 Arresting of an offendor and committing him to the Constable 50 Imprisonment vntill he had made an Obligation 51 The seruant not chargeable for the masters offence by imprisonment 52 No imprisonment by force of a Iusticies 53 Imprisonment by force of a warrant vpon a Supplicauit 54 Arresting him that would breake the peace 55 Imprisoning of a seruant that doth assault his master 56 In what cases imprisonment is lawfull and in what not 57 Imprisonment for offences done to the Iustices of the realme 58 What is maiheming 59 How many sorts there bee of maiheming 60 Examination of a maihem by the Iustices or Surgeons 61 Where diuers appeales of maihem for one offence 62 Principall and Accessarie in maihem The iudgement in an appeale of maihem 63 Mainprise in an appeale of maihem 64 Why maihem is supposed to be done feloniously 65 Barres in an appeale of maihem 66 Execution in an appeale of maihem 67 An action of Trespas maintenable after an appeale of maihem 68 The peace preserued and affraies restrained by Iustices of Peace The commission of the peace 69 The cōmission doth chiefely respect the peace Why they be called Iustices of the peace Binding suspected persons to their good behauior 70 A Iustice of Peace may take surety of the peace What the surety of the Peace is Certificat of a Recognisance The surety of good abearing 71 For whom and against whō the surety of Peace is to be graunted 72 Vpon what causes the surety of peace is to be graunted 73 Surety of peace enioined by word or writing 74 The seruing of Proces for the peace A warrant of the peace Who may serue it without writing and who without shewing it and who not Refusing to obey the warrant 75 To which Iustice of Peace the party arrested is to be brought 76 A warrant to find sureties to keepe the peace The party must offer his sureties 77 Surety of Peace doth dye with the king The Iustices authority dyeth with the king 78 The sureties of the Peace must be named 79 Hee that is bound to the Peace must appeare at a day prefixed 80 A Supersedeas for the peace 81 Taking a Recognisance for the keeping of the peace Taking a Recognisance for the good abearing 82 A Release of the suretie of Peace The parties release of the peace The Iustices Release of the Peace 83 Causes of the breach of the Peace or good abearing 84 The Sherife Constable and seuerall other officers be conseruators of the Peace 85 Euery able person when need requireth must be a conseruator of the Peace 86 Menaces Assaults Batteries c. in some cases are punishable in the Starre-chamber Riots Routs vnlawfull and Rebellious Assemblies Fol. 24. 1 The enormity of Riots Statutes ordained to preuent forces or Riots 2 The Court of Star-chamber authority to punish Riots c. 3 What is a Riot 4 What is an vnlawfull assembly 5 What is a Rout. Rout by wearing of armour 6 Lawfull assemblies of three persons or more An assembly lawfully begun doth end riotously 7 Disturbing of Riotors 8 The Iustices and Shirifes c. shall arrest Riotors Recording of a Riot 9 Inquiry of a Riot by the Iustices c. A Precept to the Shirife to returne a Iury to inquire of a Riot The forme of an inquisition of a Riot 10 Certifying of a Riot Trauerse of a Certificat 11 Proces against offendors 12 The forfeiture of Iustices which doe not inquire of Riots 13 A Commission to inquire of the Iustices c. default 14 Vpon the Commission the Coroner shall returne the Iurie What issues shal be returned vpon the Iurors 15 Where the Sherife shall returne the Iury and not the Coroner 16 A Writ directed to inquire of Riots 17 Riots shal be inquired of at the Kings costs 18 The punishment of Riotors 19 Each man shall helpe to represse Riots 20 Baylifes of Franchises Riots in Cities and Townes corporat 21 A Iury to inquire of Riots 22 Maintenance wherby a riot is not found 23 What one Iustice of Peace may do alone in a Riot 24 The Iustices must haue notice of a Riot 25 The parties agreement no discharge of the inquisition of a Riot 26 What power of the Countie the Iustices shall vse to represse Riots 27 The Iustices record of a Riot where no trauerse thereunto 28 The credit of the Iustices Record Certificat of a Riot 29 The proces against Riotors 30 The penalty for not executing of this statute 31 A trauerse to an indictment of Riot 32 Twelue or aboue assembled to change lawes 33 Practising to destroy Parks Ponds Conduits Common or Way Destroying of Deere Conies Douehouses Fish Pulling downe houses burning stackes of corne c. 34 Raising of vnlawfull assemblies by acts or words 35 Relieuing them which bee assembled 36 Vnlawfull assemblies aboue two and vnder twelue The remedy of the party grieued 37 Raising of power to suppresse vnlawfull assemblies 38 A copiholder being required refuseth to serue the king 39 A farmer required refuseth to serue 40 Disclosing a commotion wherein one is moued 41 An able person required refuseth to serue 42 Attendance vpon a Lieutenant 43 The forme of the Proclamation 44 Hinderance of the Proclamation 45 Other mens rights saued 46 Procuring others to offend 47 Vnlawfull assemblies by xl or aboue 48 A Lieutenant shall not appoint a deputie 49 Aiding of the offendor before the offence 50 The attainder of those offences no corruption of blood Force and Forcible Entries Fol. 34. 1 Vnlawfull force is an enemie to peace There shall be no forcible entry into lands 2 The penalty of forcible entry into lands or benefices 3 Holding possession by force Feoffement of lands for maintenance An Assise or action of Trespas against a disseisor by force The authority of officers in Cities and Towns enfranchised touching force 4 A speciall Assise against a disseisor with force 5 Seuerall remedies for seuerall offences by force 6 A Precept to the Sherife to impanell a Iury. The Shirifes forfeiture for not due executing of a Precept The proces against offendors in force 7 The forme of a Precept to the shirife to impanell a Iury. 8 The forme of an inquisition of forcible entry 9 A warrant to the Shirife to make restitution 10 Restitution awarded out of the Kings bench 11 No restitution but where forces is found by inquisition 12 Where no restitution against three yeares possession Where restitution notwithstanding three yeares possession 13 A Supersedeas to stay restitution 14 Where force found and yet no restitution 15 A Mittimus to send to the Gaole such as doe hold land by force 16 A Iustice may enquire of Forcible Entries without complaint 17 In an action of forcible entry the writ must be Vi armis 18 Who may bring an action of Forcible entry 19 He that hath title entereth by force 20 Hee that
in houses Wast in gardens Wast in men 10 Oppressions redressed by an Audita querela 11 Oppression by forestallers Ingrossers and Regrators Who is a Forestaller Who is an Ingrosser Who is a Regrator The punishment of Forestallers c. In what cases ingrossing and regrating be tollerable Changing of seed Buying and selling of cattell aliue The authoritie of I. of peace in these cases Trasporting allowed by Iustices When corne may bee transported Buying and selling of fish neere the Sea Drouers licenced to buy and sell cattell 12 Oppression by badgers laders c. Obseruations necessarie in all licences 13 Oppression of Printers and Stationers Oppression by Printers and Stationers 14 Oppression by transporting of gold and siluer 15 Oppression by transporting of copper c. 16 Oppression by Pewterers 17 Oppression of inhabitants of Market Townes 18 Oppression by taking of seuerall farmes Taking of farmes in the Isle of Wight 19 Oppression by keeping of many sheepe 20 Oppression by spiritual persons in taking of farmes Oppression by them in buying and selling Oppression by them in farming of Parsonages Oppression by them in keeping of Tan-houses or Brew-houses 21 Oppression by taking of excessiue toll 22 Oppression ought not to be done to aliens and strangers 23 Oppression by making of yron workes 24 Oppression by Brewers 25 Oppression by bringing into the Realme woollen cards 26 Oppression by erecting of Weares Oppression by destroying of spawne or fry of fish Oppression by fishing with vnlawfull nets 27 Oppression by buying and selling of fuell 28 Oppression by transporting of victuall 29 Oppression by vsurie 30 Oppression by cutting out the head of a conduit Oppression by burning of a cart laden Oppression by cutting out the tongue of a beast Oppression by cutting off the eares of a man Oppression by barking of trees 31 Oppression by hawking or hunting in corne growing 32 Oppression by taking of other mens fish 33 Oppression by decaying of townes and houses of husbandry 34 Oppression by decaying of tillage 35 Oppressions and all the former offences punishable in the Starre chamber Treasons Fol. 109. 1 What is Treason 2 A repeale of former Treasons Offences made Treason by Stat. 3 Compassing or imagining the death of the King c. A conspiracie by diuers executed by some of them 4 Leuying of warre or adhering to the Kinges enemies 5 Counterfeiting the K. Seale Conspyrators and ayders in Treason 6 Counterfeiting the Kings money Coyners of money by warrant doe abuse it 7 Petit Treason A seruant killeth his master or mistresse The wife conspireth to kill her husband 8 The sonne killeth father or mother 9 Treason in breaking of prison An indictor discouereth counsel 10 Treason by statute Treason by forging the coine of other realmes Treason by forging the Kings signe manuell 11 Bringing into the realm money counterfeit 12 Treason by clipping washing or filing of money 13 Treason by diminishing scaling or lightning of money 14 Treason by the maintaining the authoritie of the Bishop of Rome 15 The othe touching the Q. supreame gouernment Praemunire for the first refusall of the othe Treason for the second refusall of the othe 16 Treason for giuing or taking absolution from Rome Treason to obtaine Bulls from Rome 17 Treason to persuade to the Romish religion Treason to be persuaded to the Romish religion Practising to absolue or reconcile 18 Treason for Iesuites or Priests to come into the Realme 19 Treason in Seminary priests not returning 20 What Misprision of Treason is The forfeiture in Misprision 21 Misprision to counterfeit money not currant 22 Misprision to ayd persuaders to the Romish religion 23 Misprision to conceale reconciliation offered 24 Misprision to inroll an indictment not found 25 Misprision in drawing of a sword to strike a Iudge sitting in his place 26 Misprision in striking of a Iuror in a Iudges presence 27 Misprision by striking a man in Westminster Hall the Court sitting 28 Misprision by rescuing of a prisoner arrested by a Iudge 29 Shedding of bloud within the K. house 30 Triall of Treasons committed out of the Realme 31 Outlawrie of offendors in Treason being out of the realme 32 Triall of Treasons committed in Wales 33 The force of attainder of Treason by the common law 34 No record of Attainder shal be reuersed where the offendor is executed 35 Felonie made Treason by statute 36 An English traitor subiect to a forreine prince 37 An Alien borne committeth Treason 38 A subiect ioyneth the Kinges Armes to his owne Homicide Fol. 120. 1 Homicide by Iustice By necessitie By chaunce or misfortune By will 2 Homicide by Iustice The order of law not obserued in the execution of iustice 3 None may kill a man that is outlawed or attainted in Praemunire 4 Killing of a felon that wil not be arrested Euerie person may arrest a felon Killing of such as be vnlawfully assembled 5 Killing of him that is in carying to the gaole 6 Killing of a prisoner attempting to escape 7 Killing him that attempteth robberie or burglarie 8 Killing of an offendor in a Parke c. 9 Vnitie of possession in a chase or mannor 10 One killing of another in combat 11 Homicide vpon necessity in defence of his house from burning Homicide in defending himself from robberie 12 No forfeiture for Homicide vpon necessitie 13 Killing of another in his owne defence in his owne house 14 Necessitie ineuitable requisit in homicide in his own defence The definition of Homicide in his owne defence 15 Where in Homicide in his owne defence his goods shall bee forfeited and where not 16 Killing a man in his own defence found by verdict 17 The prisoner indicted for killing in his owne defence must plead not guiltie 18 How he shall be discharged that killeth a man in his owne defence 19 What is Homicide by misaduenture 20 The like order in misaduenture as in his owne defence 21 What is Homicide by murder What is Homicide by manslaughter 22 The name of murder Murder more grieuous than felonie 23 Wilfull poysoning is murder 24 Stabbing to death is murder 25 Murder by killing of a Constable comming to part a fray Murder by killing of a Sherife or his Officers in seruing of Proces Murder by killing of a watchman 26 Murder and Manslaughter committed in the death of one man 27 A man bearing malice to one killeth another 28 A man giueth poyson to one another taketh it and dyeth 29 Two agreeing to commit a Murder one of them doth it 30 Meaning to kil without the act is not Homicide Act in killing without meaning is Homicide 31 Homicide by giuing poisoned drinke to another 32 Many do attempt to doe an vnlawfull act and one of them doth kill a man 33 Homicide by carrying a sicke man into the ayre or cold 34 A man dyeth vnder the Physitians or Chirurgians care 35 Homicide vpon the euill words of another 36 Homicide by a Franticke man Homicide by a man that is deaf and dumbe Homicide
32 Pledges in Appeale of Rape 33 Within what time an Appeale shal be commenced 34 From what time the yeare shall haue relation 35 The yeare shall haue relation from the offence done 36 Within what time an appeale of Rape shal be commenced 37 In what County Appeale shal be brought 38 In what county an Appeale of Rape shal be brought 39 In what county an Appeale of Robbery shal be brought 40 Threatening in one county to bring money into another 41 Goods robbed carried into diuers Counties 42 Before whom an Appeale shal be brought 43 Remouing an Appeale out of the County 44 An Appeale before the Iustices of Gaole deliuery 45 An Appeale before the Iustices of the Kings Bench. 46 An Appeale against one bayled No Appeale against him that is let by mainprise 47 Appeale before Iustices of Peace 48 Appeale before the Constable and Marshall No Appeale in Parliament 49 Diuers Appeales for one felony 50 One onely Appeale for one Felony 51 Where diuers Appellees for one Felony 52 Two Appeals founded vpon one Felony 53 Robbery of seuerall parcels of goods 54 Where one shall answere to diuers Appeales or Indictments 55 Answere to diuers Indictments as well as to Appeales 56 He that hath his clergy shal answere to an Appeale of former offences 57 A Clarke shall answere to a former Appeale or Indictment of former offences 58 Proces in Appeale before the Coroner 59 Proces vpon an Appeale or Indictment 60 Proces against indictors in another County 61 Proces against Appellees and Indictees in forraine Counties 62 Proces vpon an Appeale remoued into the Kings Bench. 63 The party appealed must be supposed to be of a forraine countie 64 An appellee dwelling in no place certaine 65 Proces into a County Palantine 66 Proces against Principall and Accessarie 67 The Statute of West 1. extendeth onely to Appeales commenced by Bill 68 In Appeale one appeareth and others make default 69 Proces to remoue an Appeale 70 A Certiorari into the countie 71 Proces against the plaintife after an appeale remoued 72 Proces against the defendant after an appeale remoued 73 Proces against one that by the Shirifes returne escaped 74 Proces with a prouiso for the appellee 75 Proces to remoue prisoners or records 76 How the appellee shall bee led to the barre 77 Count in an Appeale An Appeale of Murther The yeare day houre time of the king and the towne materiall 78 The place where the fact was done 79 Count in an Appeale of death against three as principals The fact must be declared 80 Count in an Appeale of Robbery 81 Where in an appeale of Rape the Statute must be rehearsed in the Count and where not 82 Defence in an Appeale 83 Pleas to the Writ in Appeale 84 The forme of the Writ in an Appeale of Rape This word Rapuit materiall 85 Not two Appeales for one offence 86 Pleading of one in an Appeale brought against two 87 The plaintife in an Appeale misnamed 88 Two or three pleas to the Writ 89 Barres in Appeale Barre in Appeale of death brought by the wife 90 Barre in Appeale of death brought by the heire 91 Barre in Appeale of Rape or Robberie 92 Generall pleas in barre in Appeale 93 Barre for that the plaintife brought another Appeale 94 Barre by the plaintifes release 95 Pleading not guilty after other pleas 96 Where the king may prosecute an Appeale begun 97 No Appeale of Treason Indictments Fol. 169. 1 Commissions to Sherifes to take Indictments 2 When the Sherife shall hold his Turne An Indictment found in an vnlawfull time 3 Sherifes shall enquire by xij men at the least 4 Indictment before the Sherife shall bee by Roll indented 5 Of what sufficiencie Iurors returned in the Sherifes Turne shall be 6 Indictments taken in the Shirifes Turne shal be deliuered to the Iustices of Peace 7 Iurors in Indictments shal be returned without the denomination of any 8 Pannels for Indictments may be reformed by the Iustices 9 An Enquest to inquire of the concealement of other Enquests 10 In what case indictment and triall shall bee where the King will 11 Indictments and Trials of Treason committed out of the Realme 12 Indictment in the county of Lancaster of a forrainer 13 Indictment of a Lancashire man in a forraine County 14 Indictment for the striking or poisoning of a man in one coūtie who dieth in another Indictment of an accessary to an offence committed in another County 15 Indictments lacking these words Insidiatores viarum depopulatores agrorum 16 Words not necessary in Indictments 17 No more shall be in an Indictment then is true Felonicè or Piraticè in an Indictment 18 Where a verdict in an action of Trespas shall be an Indictment of Felony 19 The Sherifes returne is no Indictment 20 The yeare day and place necessary in an Indictment 21 An Indictment must be certaine in the matter 22 An Indictment must be certaine in the persons receiued 23 An Indictment vncertaine at what Court 24 Indictment for making of money 25 Indictment of a common theefe Indictment of the Ordinarie 26 The foresaid A. in an Indictment where none is before named 27 Indictment for the killing of a man vnknowne Indictment for the stealing of the goods of a man vnknowne 28 Indictment for the stealing of the goods of a Church or Chappell 29 An Indictment depending vpon an argument or implication 30 In an Indictment furatus est without felonicè or in Rape carnaliter cognouit without rapuit 31 An Indictment before Iustices of Peace 32 An Indictment before the Maior of London vpon sight of the body 33 Indictment of the receit of a Felon as accessarie 34 Indictment of the receit of the goods stolne and of the Felon 35 Indictments void for one purpose will serue for another 36 A prisoner discharged and after retained in prison 37 The difference between an Appeale and Indictment 38 Pleading another time acquit of the same Felony 39 Indictment of the death of a man knowne by two surnames 40 Indicted of the same mans death 41 Indicted in two counties of one offence 42 Arraigned vpon an insufficient Indictment or Appeale 43 Acquit vpon an erronious Appeale 44 Acquit vpon an Appeale brought by one that hath no right 45 Arraigned vpon an Indictment before the parties Appeale be determined 46 Acquit by battaile in an Appeale 47 A Murtherer indicted and arraigned at the Kings suit Another time acquit no plea in an Appeale but in an Indictment 48 No Indictment of Robberie vntill the Appeale bee tried 49 Pleading another time conuict of the same Felony 50 Another time attainted of the same Felony 51 The Kings Pardon obiected against the plea of another time attainted 52 Who is said attainted and who conuict of Felony Mainprise and Baile Fol. 180. 1 In what cases a prisoner is mainpernable in what not 2 The principall in Appeale of death not mainpernable 3 Where the principall let to mainprise 4 Pleading
excommunication in the plaintife 5 Who are mainpernable who not Bailement by the Shirife With-holding of Prisoners mainpernable 6 In what cases no mainprise by the common Law The King or Iustices commandement 7 The Marshall shall baile no prisoner The Iustices ordinarie or absolute commaundement 8 Mainprise for offendors in Vert or Venison 9 In what case hee that is outlawed may be bayled 10 Mainprise during an approuers life 11 Maineprise vpon good name The principall in Burglary and Robbery mainpernable 12 No bailement for a prisoner attainted 13 Bailement of offendors by Iustices of Peace 14 Bailement of offendors by the Shirife 15 Bailement by Shirifes and others 16 Imprisonment at the Kings pleasure 17 The difference betweene bailement in Felony and in a personall Action 18 Mainprise is matter of Record Confession of the offence Fol. 184. 1 An offendor in felony pleadeth one of three pleas 2 Confession of the offence before the Iudge vpon the prisoners arraignement may bee in two sorts Confession of the offence must be free and without menace 3 He that doth confesse his offence before the Iudge doth become an approuer 4 Confession of the offence before the Coroner whereupon abiuration doth ensue Approuer Fol. 185. 1 Who is an Approuer An Approuer shal be banished 2 Of what offences approuement may be 3 Approuement in an Indictment and not in an appeale 4 Before whom one may approue 5 How an Approuer shall vse himselfe No approuing after pleading An Approuer must tell truth 6 An Approuers oath 7 An Approuers wages 8 An Approuer set at liberty An Approuers appeale must be certaine 9 Proces against the appellees after the approuement 10 Pleas for the appellee against the approuer An Approuer attainted or conuict of Felony 11 An appellee cannot appeale others 12 An Approuer not in prison for felony or at liberty 13 The appellee an honest and credible man 14 Generall pleas in barre of the appeale 15 Where the king may pursue an Appeale begun 16 The appellants release to the appellee 17 An Approuer confesseth his Appeale to be false 18 An Appeale abating before declaration A Felon taken with the mannoure 19 No arraignment at the kings suit vpon a false declaration Where if not an appeale yet an Indictment may bee at the kings suit 20 The plaintife in the appeale excommunicat or outlawed 21 An Approuer pardoned the appellee shal be discharged 22 Vanquishing of one of the approuers 23 Examining of an offendor condemned Sanctuary and Abiuration Fol. 189. 1 What Sanctuarie is 2 What Abiuration is 3 All Sanctuaries be extinguished Abiuration by the common Law Abiuration to a place within the Realme 4 No abiuration for Treason 5 No abiuration for the robberie of a Church 6 No abiuration for a man attainted 7 No abiuration for a man before abiured 8 Where an offendor may bee drawne out of the Church by violence The offendors confession before the Coroner 9 Tarrying in a Church aboue the time limitted 10 The manner of Abiuration The oath of Abiuration 11 The attire of an abiured person 12 The vsing of persons abiured 13 The abiuration broken death ensueth A Clarke need not to abiure 14 Where no Felony no abiuration for Felony 15 The abiured pleadeth that he is not the same person The Kings pardon of Abiuration 16 Abiuration by a Recusant 17 Abiuration by a Popish Recusant 18 Abiuration by him that committeth Trespas Pleading not guilty Fol. 192. 1 The plea of not guilty the most common for a prisoner One may plead not guilty after other pleas 2 Where vpon the plea of not guilty counsel shal be allowed and where not Triall by Battaile Fol. 193. 1 Triall of not guilty by Battaile or by the Countrey 2 The forme of triall by Battaile 3 The reason why the defendant in an appeale may be tried by battaile 4 Counterpleas to the Battaile 5 Taken with the manoure 6 Breaking of prison 7 Le ts of triall by battell on the plaintifes part 8 Priuiledges of the appellants person The King A Citizen of London 9 No wager of battell in an appeale of Rape 10 One fighting with seuerall men 11 An Appeale by an approuer 12 The appellee wageth battell and then becommeth blind Triall by Peeres Fol. 196. 1 The triall of the plea of not guilty by Peeres 2 The forme of arraignement and triall of a Peere of this realme 3 By whom Peeres appealed shal be tried By whom Ladies shall be tryed 4 The triall of Bishops Arraignement and Tryall in Parliament 5 Triall of Treason committed in Ireland 6 Triall of Misprision of Treason The number of Peeres at the triall 7 Triall of Peeres by Peeres in all cases of Treason and Felonie Triall by the Countrey Fol. 198. 1 Triall of the plea of not guilty by the countrey 2 Triall by the country of forraine pleas A man stricken vpon the Sea dieth vpon the land 3 The Proces against the Iurie The Proces in an Appeale and not in an Indictment 4 Where a Nisi prius is grauntable in an Appeale 5 Remaunding of prisoners out of the Kings Bench into the Countrey 6 Triall of Felonies committed by English men in Scotland 7 The prosecutors and witnesses bound to giue euidence 8 The accessary tried though the principall be not 9 Euery Iuror must haue fiue pounds of freehold 10 The offendor shall forfeit no lands 11 A like Act made in Scotland 12 Scottishmen repairing into England to giue euidence shal be free from arresting 13 The offence shall be layed where it is done 14 Hee that is once tried shall not be eftsoones called into question 15 None shall bee sent out of England to receiue his tryall 16 The Iurors shall allow of or reiect the witnesses Challenge Fol. 201. 1 Where the prisoner is allowed to challenge peremptorily Seuerance in challenges 2 Which be challenges vpon cause for that hee was an indictor 3 Challenge for want of Medietatem linguae 4 Challenge for want of sufficient freehold 5 Challenge for the king 6 A man outlawed of Felony shall haue his challenge 7 A Iuror challenged for that he is an Alien a Villaine or Outlaw Euidence Fol. 204. 1 Some bound to giue euidence against an offendor let to baile 2 Some bound to giue euidēce against an offendor imprisoned 3 Restitution of goods vpon an attainder by euidence 4 Euidence giuen by a stranger 5 There must be two accusors to giue euidence in Treason 6 Euidence or accusors in high Treason 7 Euidence against abettors to offences 8 Euidence on the defendants part in Felony Verdict Fol. 206. 1 A Verdict at large may bee giuen in Felony 2 The Verdict sometime lesse penall then the Indictment 3 The Verdict sometime more penall then the Indictment 4 Where the Iury shal find who killed the dead man Clergy Fol. 207. 1 What Clergy is 2 Who shal not haue his clergy by the common Law 3 A committer of Sacriledge 4 The habite or tonsure of a Clerke 5 Clergie
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.
and euery the heire and heires of all and euery the offendor and offendors in any the cases aforesaid and all and euery person and persons 1. M. 12. bodies politicke and corporat their heires successors and executors and euery of them other than such person and persons onely as shall be attainted conuicted and outlawed of any the foresaid offences of felonie shall haue hold enioy all such right title entrie interest leases possessions rents conditions profits and aduaÌ„tages as they or any of them shall or of right ought to haue in or to any mannors lands rents reuersions seruices or hereditaments whatsoeuer or in or to any part thereof in as large manner to all intents as if such attainder had neuer beene had any thing in this act c. notwithstanding c. Sauing to euery person and persons bodies politicke and corporate and their successors their liberties and franchises in such maner as if this act had neuer beene made Procuring others to offend 46 If any person or persons doe moue stirre 1. M. 12. or procure any person or persons to commit any of the offences in this Act specified then euery such person and persons which shall procure stirre or mooue any person or persons so to offend shall suffer such punishment by imprisonmeÌ„t without baile or mainprise as is before expressed in this Act against counsellors of such offendors Vnlawful assemblies by xl or aboue 47 If any persons to the number of fourtie or more 1. M. 12. shall assemble together in forcible manner vnlawfully and of their owne authoritie to the intent to execute doe or put in vre any of the things aboue specified or to doe any other felonious or rebellious act or acts and so shall continue together by the space of three houres after proclamation shall bee made at or nigh the place where they shall be so assembled or in some market towne thereunto next adioyning and after notice to them giuen thereof Then euery person so willingly assembled in forcible manner and so continuing together by the space of three houres after such proclamation made and notice thereof giuen shall bée adiudged a felon A lieutenant shall not appoint a deputie 48 No lieutenant that shall bee made by authoritie or colour of this Act 1. M. 12. or for to execute this Act shall constitute vnder him or in his place any deputy nor shall call or appoint to appeare before him by the onely authoritie of lieutenancie or of commission of lieutenancy any person for any cause or matter whatsoeuer saue onely for the causes and matters expressed in this Acte and for none other Aiding of the offendors after the offence 49 No person or persons shall bee put to any losse forfeiture paine 1. M. 12. or punishment of life land or goods as accessorie to any person or persons that shall commit any of the offences contained in this act for receiuing comforting or aiding of any such offendor after such act committed or done 1. M. 12. 50 No attainder or conuiction of any person or persons The attainder of those offences no corruption of blood for any offence or offences herein contained shall be any corruption of blood betwixt the offendor and any of his auncestors or such person or persons as should haue beene heire to such offendor if no such attainder or conuiction had béene had sauing to euery person and persons bodies politicke and corporat c. their liberties and franâ—â—â—ses in such manner as if this Act had neuer beene made ⧠Of Force forcible Entries and forcible retayning of possessions Vnlawfull force an enemy to peace 1 FOrce and violence executed without warrant of Law be so méere contrarie to the peace and justice of the Realme as disobedience is to loyaltie and contempt to gouernment for whosoeuer doth make a Forcible entrie into lands in the possession of an other doth secretly reuolue in his mind and distrust to himselfe that there is no Law in the Realme to redresse his wrong or no ministers to execute the same and therefore he will sit in iudgement of that cause himselfe and take into his owne hands the distribution of justice and assume into his possession by the strength of his arme what the phantasie of his head shall resolue to be his due whereas the Law in conuenient time would truely satisfie him whether the land in question by the rules of justice be his or not and also assigne him a milde and calme course to recouer all his whole dutie with valuable damages for the time he is iniured And because this force and forcible entrie into lands is so opposite and méere repugnant to the peace and justice of the Realme and tendeth so much to the dishonour of the King and his Crowne and the discredit of the Law that any person by byrth and oath deuoted to the obedience of the King and his Lawes should presume of his owne authoritie by force and strong hand to resist them both and as it were in contempt of them violently to intrude himselfe into an other mans possession before the law hath decided his title therein Therefore the wisedome of the Realme hath by the space of many generations first prouided to restraine those forces and forcible Entries and next to inflict condigne punishment vpon them which were offendors therein Whereupon by a Statute made AnÌ„ 5. There shal be no forcible entry into lands R. 2. the King defended St. 5. R. 2. 7. that none from thenceforth should make any Entrie into any lands and tenements but in case where entrie is giuen by the Law and then not with strong hand nor with multitude of people but only in a peaceble course maner And if any from henceforth do the contrary and thereof be duely conuict he shall be punished by imprysonment of his bodie and thereof ransomed at the Kings pleasure 2 But for that the said Statute of 5. R. 2. did giue no spéedie remedie to those which were expelled out of their lands or tenements nor assigned any speciall persons to suppresse the said disorder Therefore by an other Statute made AnÌ„ 15. St. 15. R. 2. 2 R. 2. it was further ordained The penaltie of forcible entrie into lands or benefices That when any such forcible entrie shall be made into lands or tenements or into any Benefices or offices of the Church and the complaint thereof come to the Iustices of the peace or any of them that the same Iustices or Iustice take sufficient power of the County and go to the place where such forcible entrie is made if he or they find any that holdeth such place forcible after such entrie made they shall be taken and put into the Gaole there to abide conuict by the record of the same Iustices or Iustice vntill they haue made fine and ransom to the King And all they of the Countie aswell the Shirife as other
the land be seuerall yet their possession touching the profit thereof is ioynt And this Action is founded vpon the possession And whereas both the Statute of 1. H. 5. and 5. Eliz. doe ordaine that the partie and parties grieued shall and may at his and their pleasure haue and sue this Action of forger of false déedes in this case both the Ioyntenants and tenants in common be the parties grieued for that their land is molested troubled recouered or charged by this forged déed Fitzh Forger 5. But if there be two Ioyntenants or tenants in common of certaine land and one of them doth forge a false Release or other Déede whereby the whole land is intended to be conueied to himselfe in this case the other Ioyntenant or c. may haue an Action of forger of false déeds against his said ioyntenant or c. for that forged and false déede was made to the intent that the right or title of the forgers companion in estate should be molested troubled defeated or recouered And in this case he is the partie grieued to whose onely disherison the said forgery doth trench 21. H. 6. 4. 21 In an Action of forger of false déedes One sealeth a déed by an others commandement the Defendant pleaded that the Plaintife being seised of certaine land did couenant with a stranger to enfeoffe him of the same land whereupon the same stranger came to the defendant being a Clerk and requested him to make a déed of feoffment of the same land which he did and after by the plaintifes commaundement he sealed the same déede and after did reade the déede at the time of the liuerie and seisin which is the same forgerie and proclamation and that was adiudged a good Plea for when the defendant sealed the feoffement by the plaintifes commaundement and in his presence it was the plaintifes owne act and déede and his owne sealing and not the defendants for the plaintife did vse the defendants hand but as his instrument therein as men vnlearned doe vse an other mans hand to helpe or direct them to subscribe their names to a Deede 9. H. 6. 26. 7. H. 6. 34. 22 If the father do forge a déede and after dieth One forgeth and another doth publish and then his sonne doth find the same déede and doth pronounce publish or shew forth in euidence the same déede knowing the same to be false and forged to the intent the estate of fréehold or inheritance of any person of in or to any lands c. should be molested troubled defeated or recouered this is forgerie in the sonne and he shall be punished according to the foresaid Stat. of 5. El. And the same law is if one man do forge a déed or c. and an other man knowing thereof shall publish it to any of the intents aforesaid this is forgerie prohibited by the same statute for the same stat of 5. Eliz. is in the disiunctiue viz. if any person shall forge or publish Forgerie by antedating of a deed 23 If a man doe make a feoffement to one person of certaine land 27. H. 6. 3. and doth deliuer possession therof accordingly and after he doth make a feoffement to another person of the same land bearing date before the first feoffement but doth not deliuer it this last feoffement is not the feoffors déed But yet if hée do publish it to be his déed the first feoffée may haue an action of forger of false déeds against him for when he had made the first feoffement of the land hée then had nothing left in him of the same land And therefore when hée made the second antedated déed of that land it was a false and forged déed and then after publishing pronouncing or shewing it forth to be his déed it was with intent to molest trouble defeat recouer or charge the land of the first and lawfull feoffée and so he is punishable according to the foresaid stat of 5. El. as hée was before by the stat of 1. H. 5. 24 Though the foresaid two statutes of 1. H. 5. and 5. Eliz. were ordained to punish those who should forge any false déed or c. to the intent to molest trouble charge or recouer the right or title of any person in his lands tenements or hereditaments or to the intent that any person should claime any lease for yeares or annuitie or should forge any Obligation Bill obligatorie Release Acquitance or other discharge of any debt account action suit demaund or other thing personall yet was there no prouision in either of them to punish those who should get into their hands any money goods cattels iewels or things of any other persons by colour of a false token or forged or counterfeit letter for the redresse whereof by a statute made anno 33. H. 8. St. 33. H. 8. 1 it was enacted That if any person or persons of what estate or degrée soeuer hee or they be Getting of other mens goods by counterfeit tokens or letters shall falsely and deceitfully obtaine or get into his or their hands or possession any money goods cattels iewels or other things of any other person or persons by colour or means of any false tokē or counterfeit letter made in another mans name that then euerie such person persons so offending being thereof lawfully conuict by witnesses taken before the L. Chauncelor of England for the time being or by examination of witnesses or confession taken in the Star chamber before the K. honorable Counsel or before the Iust of Assise in their circuits for the time being or before the Iust of peace within any part of the K. dominions in their generall Sessions or by action in any of the K. courts of record shal haue suffer such correction punishment by imprisonment of his body setting vpō the pillorie or otherwise by any corporal pain except pain of death as shal be vnto him or them limited adiudged or appointed by the person and persons before whom he shal be so conuicted of the said offences or any of them Suspected persons called before the Iustices 25 As wel the Iust of Assise for the time being as also ij St. 33. H. 8. 1 Iust of peace in euerie countie whereof one to be of the Quorū shal haue power authoritie to call and conuent by proces otherwise to the said Assises or generall sessions any person or persons being suspected of any of the aforesaid offences to cōmit him or thē toward or to let him or thē to baile vntil the next Assises or general sessiōs there to be examined and further to be ordered by their discretions as is abouesayd Prouided alwayes that the Iustices of peace within euerie Citie Borough Towne and Franchise within this Realme or other the kings dominions shall haue like iurisdiction power and authoritie at their generall Sessions and otherwise to do and execute all and euerie
adiudged Felonie or Trespasse according to the law of the land in auncient time vsed and according as the case doth require And if in such case or any like the Iustices haue adiudged it Treason before this time and there by the offendors lands and tenements haue come into the kings hands as forfeit the chiefe Lords of the fée shal haue their Escheats of those tenements which be holden of them whether the same tenements be in the hands of the King or of any other by gift or in other manner sauing to our Lord the King the yeare and wast and the forfeiture of the chattels which doe belong vnto him in the cases aforesaid And in such cases writs of Scire facias shal be awarded against the tenants of the land without any other originall and without allowing the kings protection in the same suit And touching those lands which be in the kings hands there shal be writs granted to the Sherifes of the Counties where the lands be to deliuer them out of the kings hands without delay 2 By which statute it doth appeare that there be two sorts of Treason by the auncient common lawes of this Realme viz. High Treason and Petit Treason High treason High Treason when any of the grieuous offences aforesaid be done or attempted to the vniuersall and generall Maiestie of gouernment that is to say to the bodie of the whole Commonwealth or to the King the head ruler and directer thereof Petit treason in his person wife issues or authoritie Petit Treason is when the bloudie and grieuous offence of wilfull murder is done and committed by an inferiour person and one in subiection to another that hath a dominion or a kind of Maiestie in gouernmēt ouer the same partie And though sithence the before mentioned Statute of 25. Ed. 3. diuers other offences haue béene made Treason by the Statutes of 21. R. 2. 3. H. 5. 4. H. 5. 8. H. 6. 14. H. 6. 20. H. 6. 4. H. 7. 22. H. 8. 26. H. 8. 27. H. 8. 28. H. 8. 31. H. 8. 32. H. 8. 33. H. 8. 35. H. 8. 1. Ed. 6. yet euerie of the succéeding ages were soone wearie of the sayd new Treasons and thought that the grieuous paines and most hainous punishments of them were too heauy and vnsupportable for the Subiects of this Realme to endure As the Lords and Commons in the Parliament holden Anno 4. St. 4. H. 4. 10 H. 4. 10. did complaine that diuers paines were ordained to be Treason by the statute of 21. R. 2. insomuch that no man did know how he ought to behaue himselfe to doe to speake or say for doubt of such paines and thereupon it was enacted That in no time to come any treason shall bée adiudged otherwise than was ordained by the Statute of 25. Ed. 3. And long time after the makers of the statute of Anno 1. Mar. considering and rehearsing that the state of euerie King Ruler and Gouernour of any Realme Dominion or Comminaltie consisteth more assured by the loue and fauour of the subiects towards their Gouernour than in the dread and feare of lawes made with rigorous paynes and extreame punishment and that lawes iustly made for the preseruation of the Commonwealth without extreame punishment or great penaltie are more often obeyed and kept than lawes and statutes made with great and extreame punishments and in speciall such lawes and statutes so made whereby not only the ignorant vnlearned and rude people but also learned and expert persons minding honestie are often trapped and snared yea many times for words only without any other fact or déed done or perpetrated and therefore to the intent that the seueritie of such like extreame dangerous and perillous laws might be abolished A repeale of former treasons and adnulled St. 1. M. by the said statute of Anno 1. M. Parl. 1. it was ordained That from thenceforth none act déed or offence being by act of Parliament or stat made Treason Petit Treason or Misprisiō of Treasō by words writing ciphering déeds or otherwise whatsoeuer shal be taken had déemed or adiudged to bee High treason Petit treason or Misprisiō of treason but only such as be declared expressed to be high Treason Petit treason or Misprision of Treason in or by the stat of 25. E. 3. concerning Treason or the declarations of Treasons and none other Nor that any paines of death penalty or forfeiture in any wise ensue or be to any offendor or offendors for the doing or committing of any Treason Petit Treason or Misprision of Treason other than such as bée in the said stat of 25. E. 3. ordained and prouided By force of which stat made Anno 1. M. the subiects of this Realme were eased and vnburdened of al acts déeds and offences made or declared to be treason by the space of two hundred and more years before Or as it may more aptly be said of all offences made Treason by any stat or act of parliament whatsoeuer But sithence the stat of repeale made Anno 1. M. there haue béen diuers other offences made or declared to be treason by the stat of An. 1. M. 6. 1. 2. P. M. 11. 5. El. 11. 18. Offences made treason by Statutes El. 1. 5. El. 1. 13. El. 2. 23. El. 1. 27. El. 2. 3. Iac. 4. whereof the first foure were but as an addition augmentation enlargement or exposition of the before specified Treasons ordained by the common law or declared by the foresaid stat of 25. E. 3. All which said last mentioned Treasons I will set downe and expresse verbatim after I haue somewhat more particularly expressed how the Sages and Iudges of this Realme haue construed and expounded seueral branches of the said statute of explanation made Anno 25. Ed. 3. 3 The foresaid statute of 25. Ed. 3. doth confirme it to be high treason for any person to compasse or imagine the death of our Soueraigne Lord the K. the Quéen c. by which words it doth approue what a great regard and reuerend respect the common law hath alwayes had to the person of the K. which it hath endeuored religiously carefully to preserue as a thing consecrated by almightie God and by him ordained to be the head health wealth of the kingdome and therefore it hath ingrafted a déepe and setled feare in the hearts of all sorts of subiects to offer violence or force vnto it vnder the paine of high treason Leges Aluredi cap. 4. Co. li. 4. 124 in somuch as if he that is non compos mentis do kil or attempt to kill the K. it shal be adiudged in him high treason though if he do cōmit petit treason homicide or larceny it shall not be imputed vnto him as felonie for that hee knew not what he did neither had he malice prepenced nor a felonious intent And this law doth not only restrain al persons from laying