condemned and which be fugitiue wheresoeuer they bée found And if they haue any freehold it shall bée forthwith seised into the Kings hands and the King shall haue the profits thereof by the space of a yeare and a day and the land shall bée wasted and destroyed in the houses woods and gardens and in all things belonging to the same except men of certaine places priuiledged And after the King hath had the yeare day and wast the land shall bée restored to the chiefe Lord of the same fee vnlesse that before he redéeme the same yeare day and wast of the King by the paiment of a fine But there is a custome in the Countie of Glocester that after a yeare and a day the lands and tenements of Felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue discended if the felonie had not béene committed And in Kent in Gauelkind the father to the bough the sonne to the plough there all the heires males shall diuide their inheritance and likewise women but women shall not make partition with men 33 By force of which stat of Praerogatiua Regis The yere day and wast of lands of what title shal be forfeited euer sithence that time the King hath had all the thrée things aforesaid viz. the yeare the day and the wast of the lands of him which was attainted of felonie as one of the prerogatiues annexed to the Crowne in all cases where the felon had such an estate in his land Bracton de Corona cap. 13. that he might forfeit the same after his death and that hee himselfe might lawfully haue made wast in the same without being impeached therefore And therefore if the felon be but tenant for the terme of life or for the terme of yeares of lands the king shall not haue the yeare day and wast of them after the felons death for then he might wast another mans inheritance But if a man that is seised of lands in the right of his wife do commit felonie and is attainted thereof the king shall haue the profits of the land during the husbands life if the wife doe liue so long Fitz. Cor. 327. And some doe affirme that the king shall haue the yeare day and wast of the said wiues lands after the felons death because the felon during his life might haue committed wast therein and for that the felon had such an estate in his wiues lands that by the common law he might in his life haue made alienation of them and driuen his wife to her Cuiin vita to haue recouered them But that séemeth to be helped if any such law were before by the Statute of Anno 32. H. 8. where it is ordained That no fine feoffement or other act made suffered St. 32. H. 8. 28 or done by the husband onely of any lands tenements or other hereditaments being the inheritance or fréehold of his wife during the couerture betwéene them shall in any wise be or make any discontinuance thereof or be preiudiciall or hurtfull to the said wife or her heires or to such as shall haue title interest or right to the same by the death of such wife But the same wife or her heires and such other to whom such right shall appertaine after her decease shall and may then lawfully enter into such lands c. according to their rights and titles therein notwithstanding such fine feoffement or other act fines leuied by the husband and wife whereunto the said wife is partie and priuie only except By which Statute the wife after the death of her husband may enter into her owne land notwithstanding any attainder forfeiture or other act done by her husband No yere day and wast of lands holden by ioynt purchase 34 A man seised of land in fée simple holden of a common person did infeoffe thereof the husband and wife and their heires the husband committed felonie and was attainted thereof the King seised the land into his hands for his yere day and wast and after the Kings said terme expired 4. E. 3. 47. the Lord of the fée of whom the same land was holden did sue in the Chauncerie to haue the same land restored to him to whom by warrant the Escheator did deliuer the same lend vpon whose possession the wife of the felon attainted did enter and the said Lord of the fée reentred vpon her whereupon the sayd woman brought an Assise against the sayd Lord and recouered the land Because the fée simple of the same land being in the wife by reason of the ioynt purchase with her husband the K. ought not to haue had the yeare and day after the felons death nor the Lord of the fée the land after by Escheat 35 If tenant in tayle Tenant in tayle generall or speciall or tenant in franke mariage of land do commit petit Treason or Felonie and is attainted thereof and executed the King after his death shall neither haue the yeare day or wast in the felons land nor the Lord of the fée shall haue the land by Escheat but after the felons death the same land shall discend reuert or remaine secundum formam doni to the next heire in tayle of the felon or to him in the reuersion or remainder thereof for in this case the felon was in effect but tenant for the terme of his owne life and thereby could not forfeit a greater estate in his land than that which he had And in in like sort if he that hath land by fresh disseisin or is tenant in fee farme of land A disseiser Tenant in fée farme A mortgagée vpon condition to pay the vttermost yearely value thereof or hath land in Mortgage to be redeemed by the Mortgager vpon condition of payment of money or other condition doth commit petit treason or felonie and is attainted thereof the King shall not haue the yeare day and wast for that would tend to the preiudice of others not partie to the offence who haue or may haue a better right and title to the same lands than the felon attainted Fi. Cor. 310 36 If a man that is owner of land in antient demesne Tenant in antient demesne which hee may sell without consent of the Lord doe commit petit Treason or Felonie and is attainted thereof the King shall haue the yeare day and wast notwithstanding that he hath vsed to surrender the land into the Lords hands by a rod in the Court vpon euerie alienation thereof But if he be owner of the land in auntient demesne of a base tenure it is otherwise Fitz. Cor. 290. 37 A man that tooke a Church for felonie escaped and the towne pursued The yere day wast without attainder and killed him because he would not yéeld himselfe and this matter was presented before the Iustices in Eyre and they adiudged that his goods and the profits of his lands
Eliz. doth repeale as well the before mentioned statute of 1. H. 5. and all other statutes before that time made and prouided for forging of false deeds Lib. in t fol. 359. and hath ordained a new action of forger of false deeds to be founded vpon that Statute and other new remedies yet seeing both those statutes were made and prouided to one end viz. to auoid and punish the enormities of forgerie of false deeds to the disherison or hurt of others though vpon seuerall penalties Notwithstanding in some cases the like reason and so the same law is to be retained in the said statute of 5. Elizab. which was before in the first mentioned statute of 1. H. 5. As in action of Forger of false deeds 9. H. 6. 26. 20. H. 6. 11. 19. H. 6. 29. 21. H. 7. 15. 37. H. 6. 37. brought vpon the said statute of 1. H. 5. Pleas in bar of forgerie it is a good plea in barre for the defendant to plead not guiltie or that he did not forge that deed or to plead that he gaue to the plaintife a gallon of wine in satisfaction of the said offence which he did accept And so it is a good plea in barre in an action of forger of false deeds brought vpon the statute of 5. Elizab. and the same plea being confessed by the plaintife or found by verdict shall not onely barre the plaintife of the recouerie of his double costs and dammages but shall also discharge the defendant of all corporall punishments to be inflicted and of the forfeiture of the issues and profits of his land to the king For this is not a release or discharge after verdict but a discharge before verdict whereby the whole Action and sute is discharged and so not within the compasse of the said statute of 5. Eliz. 14. touching the plaintifes release or discharge after verdict Where one shall haue an Action of forgery though he hath but a right to the land 18 There be some cases where a man shall haue an Action of forger of false déeds though he hath neither possession reuersion or remainder but onely a title to the land As if a man die seised of certaine land and a stranger doth abate and enter vpon the same land before the entrie of the heire and holdeth out the heire and after the same abator doth forge some charter deed or other writing sealed of the same land to the intent to disturbe trouble or defeate the estate of the heire in the same in this case the heire may haue an Action of forger of false deeds against the same stranger though he hath then no possession reuersion or remainder in the same land And so it is 4. H. 6. 25. 22. H. 6. 15. 15. Ed. 4. 24. if one man doe disseise another man of land and after doth forge false deedes c. of the same land to the intent aforesaid the dissesee may maintaine an Action of forger of false deeds against the disseisor vpon the Statute of 5. Elizab. as he might haue done before vpon the Statute of 1. H. 5. for that his right and title to the same land is molested troubled defeated recouered or charged by the same forged deed And the same law is if a man doe bring a reall Action against an other of certaine land 9. Ed. 4. 37. and before iudgement one claiming a lease for the terme of yeares of the same land praieth to be receiued to saue his terme according to the Statute of Gloucester and doth shew his said lease which lease is forged Stat. 6. Ed. 1 11. In this case the Demandant in the saide Action may haue a writ of forger of false deedes against him that claimeth the said terme though he hath as yet nothing in possession reuersion or remainder in the same land but onelie a right for this lease is forged to â—he intent to defeate him of his right viz. of his present possession 19 If a man hath neither possession reuersion remainder or title of in or to land Where no Title no Action of forgerie and yet will bring against another an Action of forger of false deedes of the same land it is a good plea in barre for the defendant to pleade 21. H. 6. 51. 8. H. 6. 34. that hée himselfe is seised of the same land without that the plaintife hath any thing therein for if the plaintife hath nothing in the freehold or inheritance of the land nor any estate for yeares copihold or annuity in the same then he cannot be the party grieued in that Action neither his right title or interest of in or to the same can be molested troubled or defeated recouered or charged And the same law is if a man hath in land no mediate or immediate estate expectant vpon any lease or leases for life liues or yeares nor profit right of entry but onely a possibilitie 33. H. 6. 22. As if A. doe giue land to B. and the heires of his body lawfully begotten the remainder thereof to C. and his heires for euer If E. doe forge a deede containing that A. gaue same land to the said B. and the heires of his body lawfully begotten the remainder thereof to him the said E. and his heires for euer In this case C. cannot pursue an Action of forger of false deedes against E. during the liues of B. or of any of the heires of his body lawfully begotten for the said forgery séeing that during the said time his right title or interest into that land is not molested troubled defeated recouered No Action in respect of a possibilitie or charged for that he hath therein during that time but onely a possibilitie which possibilitie it may be shall neuer come into Esse And further C. cannot for the said forgery recouer double costs and dammages according to the said Statute of 5. Eli. for that he is not as yet a partie grieued nor damnified nor hath sustained any dammages neither peraduenture euer shall if B. and his heires doe continue from one generation to another and not die without issue of their bodies c. And of a bare possibilitie no value can be made neither single or double dammages assessed 18. H. 6. 5. 9. H. 6. 26. Kel fol. 114 20 If there be two Ioyntenants or tenants in common of land and a stranger doth forge a déede concerning the same land Forging of a déed touching ioyntenants land if one of those Ioyntenants or tenants in common doe bring an Action of forger of false déedes against the offender and the Defendant doe pleade that another hath an estate in Ioyntenancie or in common with the plaintife who is in full life this writ shall abate for séeing this Action is but in the nature of an Action of Trespas wherein the plaintifes are onely to recouer dammages Ioyntenants and tenants in common must ioyne in the same Action for though their right in
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
same in a writ of Maintenance brought against him but he cannot retaine or intreat a man learned in the law to be of counsell with the principall partie nor meddle further in that cause than to sée the mainprise performed and himselfe discharged Maintenance in respect of his interest in the land 24 Euerie person that hath any interest in land may meddle and maintain him who is impleaded for the same land and not bee punished therefore in a writ of Maintenance As if tenant for terme of life or in taile of land bée impleaded for the same land or any part thereof Bro. Maint 53. he in the reuersion or remainder thereof may at his owne charges maintaine him in that suit for the safegard of his owne estate for it is in a sort his owne case and the defence of it is to his owne benefit and the euiction to his owne disheritance But this maintenance must be after tenant for terme of life hath atturned vnto him in the reuersion for i◠he maintaine the suit before it is punishable in him 9. H. 6. 64. And so it is if a man being seised of land hath issue a daughter who is maried to another if the father in law be impleaded of that land in a reall action the sonne in law may maintaine him at his owne charges for that by possibilitie that land may after the decease of his father in law descend to his wife and so come to him in her right But if the daughter dye without issue of her bodie begotten by the said husband before the said suit commenced 14. H. 7. 2. 6. E. 4. 5. 19. E. 4. 3. then the sonne in law cannot maintaine the father in law in that suit Neither can hee maintaine him during the life of his wife if an action of Debt couenant account or any other personall action be brought against him for he is neither to take benefit or losse by any of those suits 6. E. 4. 2. 39. H. 6. 20. And if a man seised of land make a lease for certaine yeares of the same and after a suit is commenced betwéene the said lessée for yeares and a stranger touching the same land or any part thereof the lessor may giue euidence for the lessée vpon the triall of the cause in question or otherwise may maintaine him in that suit at his owne charges for it tendeth to his owne priuat benefit or losse And in some case a man may maintaine a suit lawfully though he be neither heire to the land nor in possession reuersion Maintenance in respect of his possibilitie or remainder thereof As if a man being seised of land 9. H. 6. 64. doe make a lease thereof to another for the terme of the life of the lessee and after doth grant to a straunger that if the said tenant for terme of life doe dye during the same lessors life that then the same stranger shall haue and enioy the same land for the terme of xx yeares after the death of the same tenant for life if in this case the tenant for life be impleaded for this land the same stranger may maintaine him for the sauing of his owne estate for yeares and yet he hath no certaintie but a possibilitie of a terme for yeares which peraduenture will neuer chance And likewise in some other case a man may maintaine a suit lawfully though he be neither in possession reuersion remainder or possibilitie of the thing in question Maintenance in respect of his warranty As if a man be seised of a rent going out of another persons land 11. H. 6. 49. to him and to his heires and by his déed doth graunt the same to another and to his heirs with clause of warrantie and the tenant of the land out of the which this rent is issuing doth atturne to the grauntée of this rent if after the grauntée be impleaded of this rent vpon tryall of the issue the grantor may come into the Court and shew to the Iurors such euidence as he hath to prooue the title of this rent and it is lawfull maintenance and not punishable in him though he was neither called into the Court by voucher to warrantie or by Warrantia Chartae And so might he haue done if he had beene called to warrantie by any of the meanes aforesaid vpon a warrantie made of land or rent for it is to preserue himselfe out of daunger and from recompencing in value of that whereof before he had made warrantie 25 As it is in lands and leases so is it in rents goods and debts Maintenance in respect of his rent for euerie person that hath interest in them may meddle and maintaine and defend him who is impleaded or prosecuted by suit or doth implead or prosecute by suit any other for any matter or cause concerning him or whereupon hee doth depend so that the same suit doth tend to impeach preiudice or trouble his estate therein or may redound to his benefit or profit or may be a meane thereof 9. H. 6. 64. As if a man haue a rent charge in fée out of certaine lands and another man hath in custodie a boxe of writings concerning the same rent and after hée that hath the rent doth graunt it to a stranger and his heires to the which graunt the tenant of the land charged doth atturne and moreouer the grantor of that rent charge doth graunt to the assignee of the same that if he can recouer the same boxe of writings that then the same assignee shall haue them If after this graunt the grauntor doth pursue a writ of Detinue against him that hath the custodie of this boxe of writings he to whom the same rēt charge was graunted may lawfully maintaine him in that suit for that by promise he is to haue the same boxe of writings if it be recouered for the preseruation of his estate in the said rent charge 11. H. 6. 47. And a Lord may maintaine his tenant if he be impleaded for his freehold A Lord may maintaine his tenant in respect of his rent and seruices that he is to receiue and haue of him And so it was before the Statute of Vses made anno 27. H. 8. if a man had made a feoffement of land to others to his owne vse the feoffor might maintaine the freehold tenant which held of his feoffees in respect of the vse which he hath in the rent and seruice of that tenant 15. H. 7. 2. 26 And the same law is touching debt As if A. do owe vnto B. xx l. and C. doe owe to A. xx l. due by Obligation Maintenance in respect of debt and A. will deliuer vnto B. the same Obligation in satisfaction of the xx l. which he doth owe him In this case B. may sue an Action of Debt vpon this Obligation against C. in the name of A. and retaine an Attourney and learned counsell and pursue and
suffer to bée drowned continually a Meddow or other ground demised for it is not lawfull for a particular Tenant to conuert ground to any other vse then hee receiued it as to turne Meddow into arable arable into Wood 29. H. 8. Dyer 37. Wood into Pasture or Meddow arable or Wood into Pooles or Ponds for thereby he doth wrong to the inheritance for his owne profit And likewise it is wast if the Tenant doe suffer the Bankes of the Sea or of a Riuer to be vsually ouerflowne and to decay whereby a Meddow a Pasture 20. H. 6. 1. or other ground which he holdeth for life or yeares that before was fruitfull shall become rushie sedgie or otherwise barren But if he suffer ground set with Saffron to decay or Land Meddow 10. H. 7. 2 Fit N.B. 59 2. H. 6. 10. or Pasture to grow full of Bushes or Thornes or to lye fresh and not manured it is no Wast but euill husbandrie If the owner of a Poole or Pond stored with fish doe assure the same for yeares life or c. and the tenant letteth foorth the water or otherwise fisheth the same and taketh foorth the fish or part thereof and yet leaueth it as sufficiently stored at the end of his terme 7. H. 3. Wast 141. 5. R. 2. Wast 97. Ed. 1. Wast 128. as at the beginning thereof he found it this is no Wast But if hée doe let foorth the water of the said poole or c. and suffer the same to lye continually dry or doe destroy by other meanes the fish therein and doe not repaire it and leaue it as well and sufficiently stored with fish as he receiued it by the view and iudgement of the countrey then it is wast and hée may bée punished therefore by an action of Wast And the same Law is if one doe assure to another for terme of yeares or life a Parke stored with Déere and the tenant destroyeth all the Déere and doth not store the same againe with as many before the end of his terme this is Wast If the tenant for terme of life yeares or c. of a seuerall Pasture or Close inclosed with a Wall Pale or Quick-set hedge 12. H. 8. 1. doe suffer the same to decay it is wast for by the decay of the Wall Pale or Quick-set hedge he hath made it no pasture but layed it in common As concerning wast in houses it is wast Wast in houses and an oppression of him or them in reuersion or remainder if the tenant for terme of yeares life or c. doe willingly pull downe 34. E 3. Wast 145. 3. H. 6. 53. 4. Ed. 3. Wast 22. 21. H. 6. 46. 38. E. 3. 7. 40. E. 3. Wast 90. or negligently suffer to decay a dwelling house or any Hall Parlour Chamber Buttery Kitchin Brew-house Bake-house Day-house Doue-house Barne Stable Oxe-house Kill-house Myll Cottage or any other House Cullice Leantor Edifice or Building being of the value of thrée shillings foure pence which being couered and in good repaire was standing and béeing vpon the ground when the same tenant did or lawfully might haue entred vpon the lands demised in respect of his Lease 17. E. 3. 7. 42. Ed. 3. 22. 17. Ed. 2. Wast 118. or other estate to him assured thereof And also it is wast if any of the particular tenants aforesaid doe during his estate build any new House Floore or Partition vpon any land demised or conueyed vnto him and after hée or his assignées doe pull downe the same againe or suffer the same to fall into ruine and decay for that the House Floore or Partition being builded was once parcell of the inheritance of the Lessor and therefore béeing againe pulled downe or decayed it is to his disheritance But if the Lessor doe build a house vpon the ground so demised or assured 49. Ed. 3. 1. during the estate of the particular Tenant therein and the Tenant doe pull it downe or suffer it to decay it is no Wast for it was not parcell of the thing demised neyther was there any couenant in Law that it should bée repaired And it is Wast if any of the Houses Edifices or Buildings aforesaid bée willingly or negligently burned 19. Ed. 3. Wast 30. 20. Ed. 3. Wast 32. pulled or throwne downe by the Tenant thereof or by any of his Family or Neighbours or by any other person whatsoeuer so that it bée not by the kings enemies Thunder Lightening extreame Wind or Tempest in which cases it is no Wast punishable by the Law 44. E. 3. 34. 43. Ed. 3. 6. 28. H. 8. Dyer 33. 33. H. 6. 1 séeing they were burned or throwne downe by the power and hand of God But it is otherwise if it bée burned or ouerthrowne by Rebels or others against whom the Tenant may haue his remedie and recompence by the Law For in that case it is punishable by action of Wast if it bée not repayred againe within conuenient time If a Tenant for life 44. E. 3. 44. 10. H. 7. 5. 29. H. 8. Dyer 36. 21. H. 6. 2 Fit N.B. 59. 40. Ass p. 22 yeares or c. doe suffer a Pale or a wall of Stone Bricke Timber or Mudde which is couered with Slate Tyle Timber or Thatch to decay or lye vncouered it is Wast But if any House Pale or Wall were ruinous or vncouered at the time when the estate of the sayd Tenant begun and after did decay and fall downe then the tenant is not chargeable therefore in an Action of Wast for hée is bound to kéepe them in none other repaire then he found them If the tenant for yeares or life or c. doe take away a partition or a loft in a house 10. H. 7. 5. 42. E. 3 6. whereby hée doth make two chambers or other two roomes or more but one it is wast for the tenant must maintaine the house and leaue it in such sort as it was demised vnto him and not transpose or alter any part thereof otherwise then hée receiued it And in like sort it is Wast if the said tenant doe take away a Furnace a Bench a Table fixed in the ground a Doore 21. H. 6. 26. or a Window from a house which were there at the time when his estate began for they bée made parcell of the inheritance of the house and were demised with it and cannot bée seuered from it but by him who hath the inheritance thereof And yet if the same were set there by the termor then hée may take them away againe at any time during his terme 20. H. 7. 13. but not after his terme expired And it is Wast if the Tenant doe take away the glasse of the windowes of a house Co. li. 4. 63. for whether the lessor or the lessée did set vp the same glasse and whether it bée set vp with nayles lyme or otherwise the â—ermor ought not to take it away
leases for the terme of his owne or another persons life of lands T. for life And because tenant in taile is in diuers respects but tenant for the terme of his owne life T. in tayle of his lands intailed therefore if he commit Petit Treason or Felonie he shall forfeit his said intailed lands but for terme of his owne life And he that hath land in another right shal forfeit for high Treason petit Treason Murder or other felony no longer or greater estate than he hath in the same lands as a man seised in the right of his wife of laÌ„ds T. in the right of his wife or church or in the right of his church Fitz. Forf 13. shal forfeit no further estate in the same lands but during his owne estate therein as it doth appeare not onely by the rules of the common lawes but the same is also confirmed by the Statute of 5. Ed. 6. 11. hereafter rehearsed The forf of lands in tayle 26 By the common law Tenant in tayle beeing attainted of high Treason should haue forfeited the lands whereof hée was so seised of an estate in tayle but onely for the terme of his owne life and the same after his death should haue discended to his heire But now by the Statute made Anno 26. H. 8. and Anno 5. Ed. 6. St. 26. H. 8. 16. St. 5. E. 6. 11 it is ordained That euerie offendor and offendors being hereafter lawfully conuict of any manner of high Treason by presentment confession verdict or Proces of Outlawrie according to the due course and custome of the lawes of this Realme shall loose and forfeit to the King his heires and successors all such lands tenements and hereditaments which any such offendor or offendors shal haue of any estate of inheritance in his own right in vse or possession by any right title or meanes within this realme of England or elsewhere within any the Kings dominions at the time of any such Treasons committed or at any time after 16. El. Dyer 332. As if the King giue land to the husband and wife and the heires males of their two bodies lawfully begotten the remainder thereof to the heires males of the body of the husband lawfully begotten reseruing the reuersion to himselfe and the husband and wife haue issue a sonne and the husband committeth high Treason is attainted thereof and executed and this attainder is confirmed by Act of Parliament and all the offendors lands bée giuen to the King Sauing to all Straungers their right other than to the Donor in Tayle and his heirs In this case after the death of the wife the King shall haue the land for that by reason of the fathers attainder of Treason the estate Taile was forfeyted and extinguished by force of the sayd Statutes of Anno 26. H. 8. and Anno 5. Edw. 6. and the bloud corrupt An estate taile forfeited and extinguished and the heirs disabled for that in his lineall conueyance of his discent to the land hée must deriue himselfe heire as well to his father as to his mother Br. Done 61 Co. li. 1. 103 And in like sort if a man seised of lands in fée simple maketh a feoffement thereof to certaine persons to the vse of his wife for the terme of her life the remainder thereof to the vse of the heires of his owne bodie lawfully begotten after the feoffor hath issue a sonne and is attainted of high Treason and executed In this case his sonne shall not inherit this land as heire to his father whose bloud was corrupt by his attainder but the land shall be forfeited to the King by the foresayd Statute of 26. H. 8. And as tenant in taile by committing of high Treason shall by force of the foresayd Statutes of 26. H. 8. 5. Ed. 6. forfeit those lands wherof he hath the possession reuersion or remainder in tayle so shall hée likewise forfeit to the King by committing of high Treason those lands whereunto hée hath but a right in taile Pl. Com. 547. As if the King giue lands to a man Forf of a right in tayle and to the heires males of his bodie lawfully begotten reseruing the reuersion to himselfe and the tenant in tayle hath issue a sonne and dyeth and the sonne doth enter and make a feoffement in fée to a stranger of the same land and then hath issue a sonne and committeth high Treason and is attainted thereof this land shall bée forfeited to the King for by this feoffement made by tenant in tayle to a straunger there passed none other estate from the same tenant in tayle but only an estate for the terme of his owne life and so the tayle and the right of the tayle remained in the tenant in tayle and by his attainder the estate in tayle is extinguished in the Kings reuersion in fée simple And the King shall bee sayd rather to haue this land reuerted vnto him as if all the issue of tenant in tayle were dead than by forfeiture for the words of the Statute of 26. H. 8. be All persons attainted of Treason shall loose and forfeit to the King his heires and successors all lands and tenements which such offendor shall haue of any estate of inheritance at the time of the Treason committed or at any time after Sauing to all others and their heires other than the offendors in Treason their heires and successors all their rights and possessions c. which they had at the day of the Treason committed or after And by these generall words That they shall loose and forfeit all lands and tenements which they haue of any estate of inheritance and by excluding the heire in the Sauing lands tayled shall bée forfeited and the lands in this case cannot be aptly termed to be forfeited to the King and his heires where hée had the fée simple before but are rather to be sayd reuerted to the King the tenant in tayle dying without any issue which by his attainder of Treason and the corruption of his blood Co. li. 7. 33. could inherit this land And if the King by his letters Patents vnder the great Seale doe create an Earle Forf of name or title of dignitie intailed and giue him the title and honour of an Earledome to him and the heires males of his body begotten and the grantée hath issue two sonnes by seuerall women and then dyeth and his eldest sonne doth enioy the same Earledome and after committeth Treason by leuying of warre in the Realme against the King and is attainted thereof and then dyeth without issue of his bodie begotten by this attainder the same shal be forf to the K. and not discend to the brother of the half blood nor to his heirs for this Earldom and name of dignity may be intailed according to the stat of W. 2. St. 13. E. 1. 1 De donis conditionalibê° for that it concerneth land must
nothing for that they be discharged of their charge and seruices which they did hold by which was as much as they receiued of the tenant perauaile And if they held of the King by lesse rent than their tenant perauaile held of them they shall haue the surplusage of that which was holden of them of the king by the way of petition Fitz. Assise 124. Fitz. Petition 19. And if the king doe not kéepe the land so escheated vnto him in his hands but will assure it to another hée must reuiue the tenure in the Mesne Lord to hold of them of whom it was holden before the attainder It appeareth by the statute of Praerogatiua Regis cap. 12. That the Kings and whole Court of Parliaments meaning was at that time when it was published and established by Parliament which were the Prerogatiues royall annexed to the Crowne of England by the common law That of such lands as did escheat to the King the seruice of the Lord of the fée should be reserued for the words of the Statute bee these viz. St. 17. Ed. 2. 12. The King shall haue escheat of the lands of Normans to whose sée soeuer they belong Sauing the seruice appertayning to the chiefe Lordes of the same Fée And King Henrie the third gaue the Escheates of Normans landes to bee holden of the chiefe Lordes of the Fee by Seruices and Customs due and accustomed thereunto Some of which Normans dwelling in Normandie at that time had lands in England and were subiects to the King of England and did forsake their obedience to the King of England and became subiects to the K. of Fraunce the King of Englands enemie and therby did forfeit those lands which they had in England by the common law and they did escheat to the king 48 In Petit Treason Who shal haue the forf in petit treason and felony and Felony the king shal not haue the escheat of the offendors land vnlesse it be holden immediatly of him but the king shal haue the profits of the said offendors land by the space of a yeare and a day and the land shall be wasted and destroyed in the houses woods and gardeins and in all things belonging to the same and then it shall bee deliuered to the chiefe Lord of the fée of whom the same land is immediatly holden And yet in some cases the King shall haue the forfeiture of the land of him which doth commit Petit Treason or Felonie though the land be holden of others and not of him St. 17. E. 2. 14. as it appeareth by the Statute of Praerogatiua Regis which hath ordained That the king shall haue the escheates of lands of Archbishops and Bishops fréeholders when such tenants be attainted of Felony committed in time of vacation whilest their temporalties were in the Kings hands to bestow in what sort it shall please him Sauing to such Prelats the seruice that to them is due and accustomed And therefore sauing in the cases aforesaid the mesne Lords of whom the lands be immediatly holden shall haue their escheats of their fréeholders lands that haue committed Petit Treason or Felonie which land after the King hath hath had the yere day and wast thereof they must haue deliuered vnto them out of the kings hands by suing out of a writ S. Br. 39. 49 If any stranger The Lords remedy for lands escheated vnto him or other sauing the King doth intrude into that land whereof the felon attainted was seised at the time of the felony committed the immediat Lord of the fée of whom the same land is holden may enter vpon him and put him out or else he may haue his writ of Escheat against him In the which writ he must rehearse the iudgement giuen against the person attainted viz. if he were attainted by outlawrie to alledge Eo quod praedictus A. feloniam fecit pro qua vtlagatus fuit and if he were attainted by abiuration to say Pro qua regnum nostrum abiurauit and if he were attainted by confession or verdict to say Pro qua suspensus fuit and if hee doe alledge one of those iudgements Fitz. Escheat 14. Fitz. Escheat 8. Fitz. Escheat 6. in the stead of another his writ shall abate And yet he néed not rehearse the manner of the felonie in his writ nor in his count but generally that he committed felonie And though there be error in the iudgement yet the Lord shall haue a writ of Escheat and the tenant shall not falsifie the iudgement by the errour 46. E. 3. 4. 50 Island escheat to the auncestor The heirs remedie for land escheated to his auncestor because his tenant was attainted of felonie and the auncestor dyeth before he doth bring his writ of Escheat or doth enter In this case the heire may haue a writ of Escheat and suppose that the partie attainted did hold of his auncestor Fitz. Escheat 17. 51 If a lease of land be made for the terme of life reseruing to the lessor a rent and the lessor payeth his seruices to the chiefe Lord and then the lessor is attainted of felonie Where the Lord shall haue his writ of Escheat and where he may enter and after the tenant for terme of life dyeth In this case the Lord paramount may haue a writ of escheat of the land for the rent which was reserued vpon the lease doth come in stead of the land and so in the consturction of law he died seised of the land But if no rent had béen reserued the Lord might haue entred into the land as escheated vnto him 6. H. 7. 9. but could not haue recouered it by a writ of Escheat no more than if his tenant being disseised had bin attainted of felony in which case his only remedy is to enter The forme of a 〈◊〉 of Escheat 52 This is the forme of the writ of Escheat Rex vicecomiti B. salutem Praecipe A. quod iuste sine dilatione reddat B. decem acras terrae cum pertinentijs in N. quas C de eò tenuit quae ad ipsum B. reuerti debent tanquam Escaeta sua eò quod praedict ' C. feloniam fecit pro qua suspensus fuit vt dicitur Vel pro qua vtlagatus fuit vt dicitur vel pro qua regnum abiurauit vt dicitur Et nisi c. And though the indictment was executed in other maner than is rehearsed in the writ yet the writ shall not abate Register fo 165. as if he were Decapitatus non suspensus for the execution of the iudgement is not material so that he had such a iudgement for the action is true though the writ be not true The K. remedie for land escheated to him 53 In all cases of felony if the king ought to haue the escheat he must haue an office found for him before he can enter for vntill the office found the king hath but a
shal be allowed but once 6 Killing a man by chaunce or in his owne defence Committing of petite Larcenie 7 Offendors in Treason 8 Confession of the Felony 9 Clergie taken away by Statute A Cutpurse 10 Forging of Writings 11 A committer of Buggerie 12 Counterfeiting to be Egiptians 13 Relieuing of a Iesuit or a Priest 14 Committers of Rape or Burglary 15 Taking a woman against her will 16 Practising of Coniuration or Witchcraft 17 Stabbing or thrusting to death 18 A Recusant not abiuring or returning 19 Abiuration of a Popish Recusant 20 A Souldier departing from his Captaine 21 Wandering Souldiers and Mariners 22 Taking away any person in Cumberland 23 Committing of Murther Poyson Burglarie 24 Stealing of a Horse 25 Stealing of goods in one Countie and carrying them into another 26 Robbing of houses booths tents 27 Robbing of a house in the day 28 Commandement or counsell of Felony 29 A Lord of the parliament shall haue the benefite of his Clergie 30 The Indictment must be according to the Statute The words of the Indictment must be proued 31 When Clergie shall be demaunded Clergie demaunded before verdict 32 Denying to be a Clarke and yet is Whether Clergie be allowable without request 33 Who shal allow of Clergy 34 A Felon readeth vnder the Gallowes 35 To what vse the Ordinarie is imployed Clerkes within orders shall be vsed as others be 36 What is reading as a Clerke 37 The Ordinaries attendance requisit Contention who is Ordinarie 38 A Priest shall haue no fetters 39 Bigamus shall haue his Clergie 40 Another time conuict How the conuict shall be marked How offendors within orders shal be vsed 41 Certificat into the K. Bench of Outlawries Attainders and Conuictions 42 A Clarke deliuered to the Ordinarie Clergy allowed without deliuery to the Ordinary The Kings Pardon Fol. 218. 1 The Kings oath at his Coronation touching pardons 2 None but the King can pardon Felonies 3 In what cases the King may graunt pardon 4 Non obstante in a pardon The Suggestion shall bee comprised in the pardon 5 The offences shal be specified in the pardon 6 Suit for an approuers pardon 7 Pardon of the Felony but not of the attainder 8 Pardon of the attainder but not of the Felony 9 A ioynt pardon to two or three 10 A graunt to be quit of escapes of Felony 11 A generall pardon by Parliament 12 The Kings pardon must be shewed vnder Seale A writ of the allowance of the Kings pardon 13 He that hath a Pardon shall find sureties of his good abearing 14 The good behauior broken after pardon 15 A Charter of Pardon must agree with the indictment 16 The pardon and allowance entred vpon the appeale 17 The Kings pardon in plea in appeale 18 Vpon a Pardon a Scire facias awarded against an Appellant 19 Nonsute doth not aid an appellee that is outlawed 20 The Kings Protection 21 Pardon of a Felony before it be committed Standing mute or answering indirectly Fol. 222. 1 Standing mute whereupon paine fort dure doth ensue 2 Felons refusing lawfull triall 3 Pennance onely vpon an Indictment 4 Pennance for Pyracie 5 No pennance for High Treason 6 No pennance for a man before attainted 7 Standing mute after coÌ„fession 8 Inquire of him that standeth mute 9 The iudgement in pennance Judgement and Execution Fol. 224. 1 Iudgement where the prisoner is acquited 2 The iudgement of a man attainted of high Treason 3 The iudgement of a woman attainted of Treason 4 The iudgement of a man attainted of petit Treason 5 The iudgement of a woman attainted of Felony 6 The iudgement in misprision of Treason 7 Attainder of Treason by the common Law 8 The iudgement of pennance viz. of paine for t dure 9 Iudgement in Felony by Iustices of Nisi prius 10 Iudgement by new Iustices 11 Iudgement in petit Larcenie 12 The staying of a womans execution being with child 13 A man hanged falleth down before he be dead Forfeiture Fol. 226. 1 A Felon shall forfeit lands and goods 2 Forfeiture of goods Flying for the Felony 3 The Accessarie fled for the Felony 4 Forfeiture for petite Larcenie 5 Forfeiture for flying before arrest Forfeiture without Attainder 6 Forfeiture vpon the exigent awarded 7 No forfeiture to the accessarie vntill the principall be attainted 8 Forâ—eiture notwithstanding apparance and pleading 9 Forfeiture of a Clarke conuict Of him that committeth Homicide by misaduenture Of him that killeth in his owne defence Of Felo de se Of him that doth stand mute 10 Forfeiture of a right or action No payment of Attainteds debts 11 Forfeiting of goods wherin the offendor hath no propertie 12 A Felon attainted at the suit of one where moe were to sue 13 Forfeiture of other mens goods and his owne 14 The forfeiture where a woman killeth her husband 15 An Executor shall not forfeit his Testators goods 16 The forfeiture of goods holden ioyntly 17 Confiscation of goods Confiscation of his own goods by disclaymer 18 Confiscation by disclaimer in the goods of others 19 Confiscation of goods left out of an Appeale 20 Confiscation of goods by a false Appeale 21 A Waife and the seising thereof 22 The owner seiseth his goods waiued 23 Sildome waife but of stoln goods When waife of goods not stolne 24 No waife of goods stolne from an alien 25 Forfeiture of lands Tenant for yeares Tenant for life or in taile Tenant in the right of his wife or Church 26 Forfeiture of Landes intailed 27 The forfeiture of landes in fee simple The forfeiture of an Annuitie 28 The forfeiture of Title to land 29 The forfeiture of Euidence 30 Forfeiture without attainder 31 Forfeiture of the yeare day and wast 32 By what meanes the King came by the yeare day and wast 33 The yeare day and wast of lands of what title shall be forfeit 34 No yeare day and wast of lands holden by ioint purchase 35 Whether any Forfeiture shall bee made by Tenant in taile A Disseisor Tenant in fee farme A Mortgage 36 Forfeiture of tenant in auncient demesne 37 The yeare day and wast forfeited without attainder 38 No yeare day and wast of a Clarke conuict Lands of small value 39 When the king shall haue the yeare day and wast 40 The yeare day and wast not grauntable from the Crowne 41 What goods of Felons the king shall haue 42 From what time the forfeiture of lands shall haue relation 43 From what time the forfeiture of goods shall haue relation 44 who shall seise and keepe Felons goods and when 45 The goods of an offendor shall not bee seised vntill he be attainted 46 Who shall haue the custody of Felons goods 47 To whom the forfeiture of lands of a person attainted of high Treason shall accrue 48 Who shall haue the forfeiture in petite Treason and Felonie 49 The Lords remedy for lands escheated vnto him 50 The heires remedie for lands escheated vnto his auncestor 51 Where the
of him that was first menaced then assaulted Menacing beginneth the quarrell assaulting doth increase it battery accōplisheth it menacing laieth togither fire coales in the house of peace assault bloweth it maketh it burn And battery doth endeuor to consume the whole building to the ground And therfore because some sorts of menacing assaulting battery be professed enemies to the peace wherof I do write I will endeuor plainly to expres which be those menaces c. that the law doth inhibit in what sort by what means she doth restrain punish the offēdors therein 3 The law hath alwayes had that speciall regard to the preseruation of the peace of the Realme and of euerie member thereof that she could not endure neither would suffer one person so much as to menace or threaten another of life or member or of any thing tending to the breach of the peace And therfore she hath not only assigned in all countries places of this realm Sherifes Iustices of peace Constables Thirdboroughs and diuers other officers to be as watchmen continually attending bending their cares industries to preserue the peace and to defend each person from the violent sting of menace assault or batterie but also she hath giuen and prouided for him who is only menaced 40. E. 3. 40. an action of Trespas as she hath done for him who is assaulted or beaten wherby he shall recouer his damages so that the same menacing do tend to the hurt of him who was menaced his seruant tenāt or any other person by whom he liueth or receiueth benefit And therefore the plaintife in an action of Trespas of menace may declare That he is an Atturney The declaration in Trespasse of Menace and that in respect of the defendants menace he durst not attend his clients suites from such a day in M. vntill such a day in O. or that he is a husbandman and could not attend or ouersée his husbandrie or that he is a bailife or collector of rents and could not in respect of such menace 37. H. 6. 3. by the space of many monethes attend his bailiwick collection of rents or other businesses or that in regard of such menacing 30. Ass p. 14. he was not able nor durst trauell abroad to apply his trade or get his liuing without such force and defence as his estate was not able to maintaine As the collector of a fiftéene brought an action of trespas for the king and himselfe 27. Ass p. 14. against one and declared That the defendant did so rebuke him Rebuke in Assault that he durst not tarie in the towne to gather vp the fiftéene for feare least the defendant would haue beaten him And though the defendant did not beat him yet this rebuke was adiudged an assault and the plaintife recouered an C. s̄ in damages And in like sort one brought a bill of trespas in the Cōmon pleas for the king and himselfe 30. Ass p. 14. and declared That whereas hee was comming towards the Commō pleas to answer in a plea of land the defendant came and did so beat assault and menace him that hee durst not bring his writings or come thither without great charges in contempt of the king contrarie to his peace to the damages of the plaintife c. Whereunto the defendant pleaded not guiltie And the defendant was compelled to find pledges of his good behauior for the peace that he should not meddle with the plaintife by himself nor by any others Fitz. Trespas 159. openly nor secretly In an action of Trespas the plaintif declared That the defendant so menaced him in one county that he could not do his businesse in another county and this was adiudged a good declaration and it was ordered 37. H. 6. 2. that the issue shold be tried in the county where the menace was for there was al the trespas cōmitted the other county was put in only to increase the damages Li. Intr. 592 22. Ass p. 76. 20. H. 7. 5. 4 And in like sort if one man do menace or threaten the seruant of another Menacing a seruant whereby he departeth of life or member in such sort as the same seruant doth depart frō his master wherby the master doth for a time lose the seruice of his said seruant in this case the master shal haue an action of trespas declare against him that did so menace his seruant That he made assault vpon his seruant did beat him wound him and euil intreat him so often menaced to kill dismēber him did him so many iniuries wrongs that his said seruant durst not for such menaces for feare of being killed or maimed attend his businesse viz. the bailiwike of his husbādry his seruice in husbādry or kéeping of his horses beasts shéep c. And so his said busines seruice lay vndone the said pl. lost the seruice of his said seruāt frō the 20. day of M. vntil the 20. day of N. thē next following to his great damage against the K. peace whereof he cōplaineth that he is endamaged 20. l. And so note 7. E. 4. 24. 27. Ass p. 11. that a man shall not haue an Action of Trespasse for menace onely vnlesse he hath also thereby some other losse or hurt for the menace and the hurt which the partie doth sustaine thereby doe make the Trespasse and doe giue cause of the action of Trespasse But it is otherwise 20. H. 7. 5. if a man beat the wife or villaine of another for in those cases the partie wronged viz. the husband or Lord shall haue an action of Trespasse though hée hath receiued no losse nor hindrance in commoditie For hée must ioyne in suit with his wife to recouer recompence for the batterie and wrong done vnto her by the trespassor and also hee may punish him by action of Trespasse who beateth his villaine as hée may doe him who beateth his horse cow oxe c. Menacing a tenant whereby he departeth 5 And the same law is if one man doe so menace of life and member Li. Intr. 592 20. H. 7. 5. 9. H. 7. 7. the tenants of another which doe hold of him certaine lands and tenements at will paying to him therefore certaine yearely rent and seruices in respect of which menace the same tenants doe depart from their said tenements and leaue the said rents vnpaid and the same seruices vndone In this case the Lord or owner of the same tenements may haue an action of Trespas against such menacer in the Kings Bench or Common Pleas and declare of the sayd menacing of his tenants at will of their departure from his tenancies thereby and the losse and preiudice that he hath sustained by his rents vnpaid and seruices vndone and he shal recouer damages accordingly And in this case it is a good plea for the defendant Menacing
for an assault made to the wife 22. Ass p. 60 the husband the wife shal haue an action of Trespas against him that made the assault 46. Ed. 3. 6. the declaration shal be ad damnuÌ„ ipsorum though the husband only shall recouer the damages 12 But as he that is assaulted or beaten Iustifying of beating in his owne defence shal haue his remedie by action of Trespas against him that did assault or beat him also the K. shall haue a fine therefore if he that made the assault or battery did it without cause offered therein iniurie to the party assaulted 16. Ed. 4. 11. 19. H. 6. 47. 6. H. 7. 1. 34. H. 6. 15. 43. Ed. 3. 23. because the kings peace is broken one member of the coÌ„mon weale hath abused done wrong to an other So on the other side if he that was so assaulted or beaten did first make an assault vpon him that after did beat him would haue beaten wounded or c. and in his said assault did receiue from the other some stripes or blowes the def may iustifie his said assault batterie as a thing done in defence of his owne person from imminent present perill wherin the Law will protect defend him And therfore in that case the def doth answer the pl declaration pledeth in bar that the pl did assault him would haue beaten him he defended himself the hurt which the pl receiued was by his own assault And the pl in his replication doth plead that the defendant did with force armes of his owne wrong make assault vpon him beate him euill intreate him contrary to the Kings peace without any such cause as the defendant hath alledged And so the issue is ioined whether the assault was begun and made by the plaintife vpon the defendant or by the defendant vpon the plaintife for if the assault batterie 38. Ed. 3. 6. or assault only was first made and begun by the defendant vpon the plaintife Then the defendant did it with force armes and against the kings peace is to answere damages to the plaintife according to the hurt which he receiued to pay a fine to the K. for vsing force violence breaking his peace for at all times in an action of Trespas vi armis brought against any person 19. H. 6. 8. if the defendant be conuict he shall pay a fine to the King 8. Ed. 4. 15. But if the plaintife made the first assault and the defendant in his own defence rather then he would be beaten or wounded did beate strike or wound the plaintife Then the plaintife shall recouer no dammages against the defendant but shal be amerced to the King for his false suit Neither shall the defendant be charged to pay to the king any fine And if one man wil assault offer to beate two thrée 12. Ed. 4. 6. or more persons they in their own defence doe beate or wound him he shall haue no action of Trespas or other remedie against them one of them may defend helpe the other But it is to be obserued in this case that if one man doe assault an other if he which is assaulted may escape with his life 2 H. 4. 8. 33. H. 6. 18. or without being wounded or maihemed it is not lawfull for him to beate or wound the other who made the assault 13 As the law doth accompt it no breach of the peace for one man to beate an other in the defence of his own person from killing Iustifying of beating in defence of others wounding or beating but a thing iustifiable So doth she impute it no fault punishable for the husband to beate him that doth assault would beate wound 19. H. 6. 31. 66. Lib. intur 553. or euil intreate his wife being both one flesh or for the wife to beate him that doth assault and would beate wound or euil intreate her husband Or for the sonne or daughter to beate him that doth assault would beate wound or euil intreate his or her father or mother Or for the father or mother to beat him that doth assault Lib. intur 554 would beate wound or euil intreat his or her sonne or daughter being then within age not able to defend him or her selfe Or for the Lord to beate him that doth assault would beate wound or euil intreat his villaine Or for the seruant to beate him that doth assault would beate wound 35. H. 6. 51. 11. H. 6. 19. 12. Ed. 4. 6. or euill intreate his master or mistris or to take any weapons wherewith the assailant would beate wound or euil intreat his master to kéepe them vntil his rage be swaged for the seruant is bound to performe vnto his master mistris protection dutie he may kill a man in defence of his master if his said master cannot otherwise escape But the seruant cannot iustifie the beating of him 21. H. 8. 39. that doth assault attempteth to beate wound or euil intreate the father mother brother sister son 9. Ed. 4. 48. or daughter of his master or mistris for he oweth no obedience or duty to any of them Neither can the master iustify the beating of him that doth assault would beat wound or euill intreat his seruant Fitz. Iustification 3. 19. H. 6. 30. 66. But though the master cannot assault beat an other that doth assault would beate wound or otherwise euill intreat his seruant Yet he may with a sword staffe or other weapon aide defend his seruant assaulted from being beaten that in respect of the losse of his seruice And also after his seruaÌ„t is beaten 22. H. 6. 43. 21. H. 6. 9. Fitz. Trespas 46. 20. H. 7. 5. Cook lib. 5. 108. he may haue an actioÌ„ of Trespas against him that did beat wound or euil intreat his said seruaÌ„t vnles it were vpon the same seruants own assault recouer so much in damages against the offeÌ„dor The masters remedy for the beaâ—ing of his seruant as he receiued preiudice or hinderance by the losse of his said seruants seruice for if the seruant be but so beaten that he is able to do his seruice as well as he was before the master shall recouer no damages for that beating And as the master may haue an action of trespas against the offendor recouer so much in damages as he doth loose by the want of his said seruants seruice so likewise the same seruaÌ„t may haue another action of trespas against the offendor recouer so much in damages as he shall receiue hurt on his bodie Fitz Trespas 210. 21. H. 6. 8. 3. H. 6. 54. 34. H. 6. 28. 43. by the said assault beating In an action of trespas brought by the master for beating of his seruant wherby he
at which sessions the said person vpon his reconciliation repentance before the said Iustices at the said sessions shall be deliuered out of prison vpon sufficient surety of his good abearing and behauiour to be then and there taken by the said Iustices for one whole yeare then next ensuing as by the discretion of the said Iustices then and there being or of the more part of them shall be thought conuenient And if the said person will not be reconciled and repent at the said quarter sessions then he shall be further committed to the said Gaole by the said Iustices there to remaine without baile or mainprise Rescuing the offendor or disturbing the arrest vntill he shall be reconciled and be penitent c. And if any person or persons of their owne authoritie willingly and vnlawfullie doe rescue any offendor so apprehended or will disturbe the said offendor to be apprehended then euery of the said Rescuers or disturbers shall suffer like imprisonment as is aforesaid and further shall pay for euery of his offences v. l. to the Quéene The punishment of the Town where the offendor dothe scape If any of the offendors aforesaid be not apprehended in time conuenient but doe escape then the said escape shall be lawfully presented before the Iustices of peace at the next quarter sessions c. and the Inhabitants of the parish where the said escape was suffred shall forfeite to the Quéene c. for euery such offence v. l. to be leuied and taken as other like amerciaments and fines be leuied vpon any village hundred or towne for the escape of any murderer or other felon for not making pursuit vpon huy and cry according to the Statute of Winchester and the statute of 3. Punishment by Ecclesiasticall laws H. 7. 1. This Act shall not extend to take away the authority and punishment of the Ecclesiasticall lawes standing in force for the punishment of any of the offences aforesaid But they shall be vsed in euerie thing as though this act had neuer ben made Whatsoeuer person offending in the premisses shal for any the offences afore recited receiue punishment of the Ordinary hauing Testimoniall thereof vnder the said Ordinaries seale shall not for the said offence eftsoones be conuicted before the Iustices Eté conuerso 27 To the intent vtterly to take away all quarreling brawling fraying and fighting openly in Churches and Churchyards by a statute made An. 5. 6. E. 6. it was ordained Sta. 5. 6. E. 6. 4 That if any person whatsoeuer doe by words only quarrell Chiding in a Church or Churchyard chide or brawle in any Church or Churchyard Then it shall be lawfull to the Ordinary of the place where the offence is done and proued by two lawfull witnesses to suspend him being a Layman ab ingressu Ecclesiae and being a clerke from the Ministration of his office so long as he thinketh méete Smiting in a Church or Churchyard according to the fault And if any person or persons shall smite or lay any violent hands vpon any other either in any Church or Churchyard then ipso facto euery person so offending shall be déemed excommunicat and be excluded from the fellowship and company of Christs congregation And if any person shall maliciously strike any person with any weapon in any Church or Churchyard Drawing or smiting with a weapon in a Church or shall draw any weapon in any Church or Churchyard to the intent to strike an other with the same weapon then euery person so offending and thereof being conuicted by verdict of xij men or by his owne confession or by two lawfull witnesses before the Iustices of assise Iustices of oyer and determiner or Iustices of peace in their sessions shall be adiudged by the same Iustices before whom such person shall be conuicted to haue one of his eares cut off And if the person or persons so offending haue none eares whereby they should receiue such punishment as is aforesaid Then he or they to be marked and burned in the chéeke with an hot yron hauing the letter F. whereby he or they may be knowne and taken for fray makers and fighters and besides that euery such person to be and stand ipso facto excommunicated as is aforesaid 28 As the law hath alwaies had a principall and most speciall regard that there should be no breach or disturbance of the peace to those persons places and tymes which be dedicated and deuoted to the seruice of God to the Ministration of his Sacraments and preaching of his worde So hath she a secondarie respect that the King the head of the Realme and chiefe fountaine of peace may haue tranquillitie and peace at the time and in the place where he doth rest and in person make his aboade whereupon by a Statute made Anno 33. H. 8. it was enacted Drawing of bloud within the Kings pallace That if any person shall maliciously strike any other person Stat. 33. H. 8. 12. whereby bloud shall be shed in any of the Kings houses or pallaces or in any other house where the Kings Maiestie his heires c. â—â—â—t be at that tyme abiding in his royall person viz. within any edifices courts places gardens orchards or houses within the Porters warde of any the houses aboue rehearsed or within any gardens priuy walkes orchards tilt-yards woodyards tennis playes cockfights bowling allies neare adioyning to any of the houses aforesaid and being part of the same or within 200. foote 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 shall be thereof indicted arraigned and attainted according to the Statute in that case prouided he shall haue his right hand stricken off be imprisoned during his life and make fine to the King at his pleasure But this act nor the paines and forfaitures before rehearsed shall not extend to any Noble man or other person that shall strike his seruant within the said pallaces 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 executing his office shall strike any person with his hand or fist or small staffe sticke or tipstaffe Nor to any other person that in doing seruice at any triumphe or any other time of seruice by the King or any of his Councell or other his head officers commaundement shall for the executing of his said seruice strike any person with his hand fist small staffe or sticke or any tipstaffe within the same pallace house c. although by reason of the same stroake or stroakes there happen to be any bloud shead of such person as shall be so striken except the person so stricken dye of the same stroake within one yeare next after Long time before the making of this statute King Alured ordeined a law
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
put out by force cannot maintaine an action of trespas of forcible entry against him who hath title to enter for that his entry was no disseisin to the other who was not lawfully seised thereof but he may invite him for this forcible entry this indictment being found he shal be restored to his possession againe by a Iust of peace by vertue of the said statute of 8. H. 6. And after that 22. H. 6. 18. he that did first enter forcibly by lawful title may again enter peaceably or bring an assise of Nouel disseisin at his pleasure Fit Na. B. 249. 22. H. 6. 37. 20 If a man do enter into lands or tenements disseise one with force He that hath possessiō sueth a writ of forcible entry and after the disseisée doth réenter againe yet the same disseisee may pursue an actiō of Trespas of forcible entry against the disseisor recouer his treble damages though he be seised of the land at the time of the writ brought And therefore it is not a sufficient plea in a writ of forcible entry for the def to plead that the plaintife was seised of the same land the day of the said writ brought 20. H. 6. 12. 22. H. 6. 23. 21 A man may haue a writ of Forcible entry of a rent as well as of land Forcible entry of a rent or common for one may distraine with force for rent and that doth counteruaile an entry with force And one may haue a writ of Entry of a rent which doth suppose that the def did enter into the rent And in an Assise of rent the disseisin may be found to be done by force 39. Ass p. 4. If there be thrée iointenants of land out of the which there is a rent going vpon a distresse taken one of thē maketh rescous by force he only shal be imprisoned yet the others be disseisors And the like law is of a commō of pasture for a commoner may be force be expelled or kept out of his common And a man may kéepe his beasts in another mans ground by force 27. Ass p. 30 claiming common where he hath no common and that is disseisin by force And in either of the cases aforesaid a Iust of peace vpō complaint to him made may remoue the force but not award restitution because they are to be taken vsed in another mans land 2. H. 7. 16. 17. Ass p. 14 22 If diuers do enter with force to the vse of another Forcible entry to the vse of another who himself doth not enter but after doth agrée to this entry to his vse this agréement doth make him a disseisor or a trespassor but he shall not thereby be punished for the force for there can be no forcible entry without an actuall entry Forcible detaining by words only And yet there may be a forcible detaining of possession by words only without act as if he that hath wrongfully but peaceably entred into another mans house expelled and put out the owner thereof shall say to the same owner if he do come thither againe to enter he will kill him this is a forcible detaining of possession 23 If there be two iointenants or tenants in common of certaine lands one of them doth expell put forth the other out of possession of the said lands by force Iointenants or tenants in common expelling each other by force he that is so expelled 8. Ed. 4. 9. 19. 10. H. 7. 27. Fit Na. Br. 249. 21. E. 4. 10. 18. H. 6. 5. may haue an action of Trespas of forcible entry against his companion that did so expell him vpon the said statute of 8. H. 6. for the words of the writ may be verified Expulit Disseisiuit and therupon he shall haue a writ of Restitution to restore him to his former estate But if one iointenant or tenant in common of lands doe expell the other by force out of the same lands he that is so expelled cannot maintaine a writ of Entry vpon the statute of 5. R. 2. against his companion that so put him foorth and suppose that he did enter into the same lands vbi ingressus non datur per legē for that his entry and possession in that land is lawful through the whole land in respect of his owne moitie or estate and further séeing by that action the plaintife is to recouer but only dammages as in an action of Trespas and not to be restored to his possession which action of Trespasse one iointenant or tenant in common cannot maintaine against another for any Trespas done in the land so holden by them Who may bring a writ of Entry vpon the statute of 5. R. 2. 24 None can maintaine a writ of Entry vpon the said statute of 5. R. 2. 8. E. 4. 9. 19. vbi ingressus non datur per legem but onely tenant in fée simple tenant in fée taile or tenant for terme of life at the least for tenant for terme of yeares a copyholder or a tenant at will cannot pursue and maintaine it seeing they haue but the manurance and occupation of the land 4. H. 7. 1. Neither can the King bring the said Action nor an Assise Eiectione firmae nor action vpon the statute of 8. H. 6. Nor any other action which doth proue him out of possession of the land Turning a watercourse by force 25 If a man do enter into another mans ground Plow Com̄ 467. and turne away by force an ancient watercourse which he hath running to his myll the party grieued may haue a speciall Assise of Nusance vpon the statute of 4. H. 4. against the offendor recouer his double damages yet he was not put out nor disseised of his freehold but a Nusance was done to the dammage thereof The plea of not guilty in forcible entry 26 In a writ of Forcible entry the defendant may plead not guilty Lib. int̄ fol. 330. Fit N. B. 249. 14 H. 6. 16. 22. H. 6. 57. 22. H. 6. 17. 9. H. 6. 19. 21. H. 6. 39. that shal be a good plea. But if the defendant doe plead some matter in barre yet he must in the end of the barre trauerse and deny the entry with force which is alledged against him as to say without that he did enter with force c. And the plaintife must answer to that speciall matter alledged in the barre without answering to the Trauerse of the force and vpon that speciall matter the issue must be ioyned and not vpon the force And if that speciall matter alledged in the barre be found by verdict with the defendant he shal be excused and the force shall not be inquired of But if it be found with the plaintife and against the defendant then the defendant shal be attainted of force and render treble dammages and treble costes without inquirie of the force
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
lessor of the remedy which the said statute of Anno 4. H. 7. did giue him viz. to make his entry or to pursue his action within fiue yeares which he could not do being ignorant of the lease for life which his tenant had made of this land to a stranger and also conceiuing that the lessée hauing land of his owne fée simple in the same towne he leuied a fine of that land which hee might lawfully doe And the deceit and fraud in this case is the more odious because it was practised by the lessée against his lessor and by the copyholder against his Lord who is by the law bound to do fealty to the lessor and Lord which is a bond of confidence and a linke of trust And if a man seised of land in fée Fit Fines 120. do make a lease to another thereof for terme of life and the lessée for life doth leuie a fine therof to a stranger he in the reuersion may enter into the same land for a forfeiture and put forth the conusée in the fine and auoid the fine for it was leuied by deceit to defraud him of his reuersion If a fine be leuied of lands to secret vses to deceiue the purchasor of the same land it may be auerred to be leuied by fraud and so by the statute of 27. El. 4. auoided St. 27. Eli. 4. And so if a fine be leuied vpon an vsurious contract and that be auerred the same fine shal be void by the stat of 13. Eliz. 8. St. 13. Eli. 8 A fine leuied of ancient demesne lands to defraud the Lord. 5 The law is as prouident to protect mens seigniories rents and seruices from euiction by deceit as she is their lands and tenements knowing that a fine in some cases leuied by couin of the one may be as preiudiciall to his inheritance as of the other hath therefore ordained seuerall remedies to redresse seuerall wrongs as if a man seised of lands in ancient demesne do leuy a fine thereof at the common law to another this is a deceit to the lord of that manor of whom the said lands be holden 21. Ed. 3. 20 Fit Nat. Br. 98. therefore he may haue a writ of Deceit against the cognisor and the tenant of the lord thereby auoid the said fine and then he that leuied the said fine shall be restored to the possession and the title which he had before in the same land and also the same land shall returne and become auncient demesne as it was before for that the said fine shal be vtterly void 21. Ed. 3. 56. And he that is lord of a manor of auncient demesne but for the terme of his life only may maintaine this writ of Deceit And so may he in reuersion if tenant for the terme of life doe not bring it during his life and either of them by his said writ may auoid the same fine for by the leuying of a fine at the common law of lands in ancient demesne 8. E. 4. 6. or by recouerie of them at the common law the same lands do become Franke fée and pleadable at the common law and so the lord should be deceiued of his right and loose his seigniorie in them And the writ of Deceit will auoid the said fine or recouerie because the fine was leuied and the recouerie was suffered coram non iudice in deceit of the Lord viz. not before that Iudge nor in that Court where they ought to haue béene 17. Ed. 3. 31. 7. H. 4. 44. 8. H. 4. 23. Fitz. Na. Br. 98. But if a man seised of lands whereof parcell be auncient demesne and parcell Franke fée doe leuie a fine at the common law of both parcels in this case though the Lord of the auncient demesne doe by his writ of Deceit auoid the fine for so much as is ancient demesne yet the residue of those lands which be Franke fée shall continue in force for a fine leuied of them was no wrong or deceit to any 6 And the same law is where land is recouered by deceit A writ of Deceit to auoid a recouery as if one man do bring a Praecipe quod reddat against another and demaund certaine land by force whereof the tenant ought to be summoned to be before the Iustices at a certaine day and the shirife doth returne the tenant of the land against whom the said Praecipe is brought Fit Nat. Br. 97. summoned whereas in truth he was not summoned by which false returne and deceit of the shirife the demaundant doth vpon the Graund Cape recouer seisin of the land by default of the tenant in this case the tenant to whom this deceit is done 3. E. 3. 28. Fitz. Deceit 49. may after iudgemēt giuen for the demaundant haue a writ of Deceit against him that did recouer and against the shirife for his false return And by this writ of Deceit the tenant shal be restored to his land againe 18. E. 4. 11. so that it be brought during the life of the summoners viewers and pernors or any of them for if it bee not brought vntill all the summoners viewers and pernors be dead it will not lye for after the death of them the tenant shall not haue a writ of Deceit for proces shal be awarded against the summoners viewers and pernors to appeare in Court and by the examination of them it is to be tried whether the tenant was summoned or not 50. Ed. 3. 16. 8. H. 6. 1. Fitz. Deceit 48. Fitz. Deceit 32. 33. 34. 46 for the summons must be made by two summoners at the least and two viewers And if any of them did not their duty then the writ was not executed as it ought to haue béene and therefore the plaintife in the writ of Deceit ought to be restored But the K. shall haue the issues of the land in the meane time And if the demaundant who did recouer by the shirifes false returne do make a feoffement of the land then the writ of Deceit must be brought against the demaundant the feoffée and the shirife and if the demaundant that doth recouer 8. E. 3. 6. 10. Ed. 3. 43. the shirife also be both dead yet the writ of Deceit may be brought against the heire of the demaundant and the tenant of the land if the summoners viewers and pernors be liuing And if a man do lose his land by default in a Praecipe quod reddat Fit Nat. Br. 98. Fitz. Deceit 43. 80. whereby he was not summoned and then dieth his heire may haue a writ of Deceit as well as his auncestor and shall haue restitution and the vouchée The vouchée may haue a writ of Deceit where he doth loose by default if he were not summoned 7 And so it is if a man sue a Scire facias against another Deceit to auoid a recouerie vpon a Scire facias
dispose or otherwise imploy or suffer or cause to be paid disposed or imploied to any of the foresaid vses or to any of the like vses aboue the terme of 20. yeares next after the first making and beginning of any such vses shal be vtterly voide But for the preuenting of collusion and fraud which might bee deuised for the further establishing or corroboration of such vses by the said Statute of an 23. H. 8. Collaterall conueyaunces to defraud the assurance to Churches it was moreouer prouided That if any person or persons in defraud of the said Statute doth bind or ordaine any of their heirs or successors or any other persons that they shall suffer such vses intents or purposes to continue contrarie to the said statute vpon paine of losse of any other lands or of any other thing or doe deuise by any colour craft or meanes any thing to make such vses declared contrarie to the meaning of the said Act to continue for any longer time then is aboue limitted for the same Then euerie such penaltie craft colour and euery other thing that is made or deuised in defraud of the said act shal be voide for the said Statute shal be interpreted as beneficiallie as may be to the destruction or vtter auoyding of the vses aboue remembred and of all other like other then such as are before expressed Co. lib. 1. 26 Notwithstanding the foresaid Statute of An̄ 23. H. 8. To what vses lands may be giuen it is lawfull for any person at this day to giue his lands tenements or hereditaments to any person or persons to his or their heirs for to find a preacher for the maintenāce of a Schoole for the reliefe of maihemed souldiers for the sustentation of poore people for the reparation of churches highwayes bridges cawseis for the discharge of the poore inhabitants of a towne of cōmon charges for to make a stock for poore labourers in husbandrie poore apprentices for the mariage of poore maids or for such other charitable vses for the said stat was made onely to restraine the assuring of lands to superstitious vses and not to charitable vses And in this case it shal be expedient that the feoffor which doth assure his land to any of the vses aforesaid doe reserue to himselfe some annuall rent or take some money of the feoffées at the first for then the feoffement or assurance shal be good to the feoffées and their heires though the vse be vnlawfull And it appeareth by the stat made an 43. Stat. 43. El. 4. El. that they be accounted good and charitable vses no superstitious vses to giue lands tenements rents annuities profits hereditaments goods chattels money and stocks of money for the reliefe of aged impotent and poore people or for the maintenance of sicke and maihemed souldiers mariners schooles of learning frée schooles schollers in Vniuersities or for repaire of bridges ports hauens cawseys churches sea-bāks high waies or for education or preferment of orphans or for or toward reliefe stocke or maintenance for houses of correction or for mariage of poore maids or for supportation helpe ayd of yong trades-men handicrafts-men and persons decaied or for reliefe or redemption of prisoners or captiues or for aid or ease of any poore inhabitants concerning paiment of fifteens setting out of souldiers and other taxes For the said Stat. of 43. El. doth giue authoritie to the L. Chauncelor the L. Kéeper c. to the Chauncelor of the Duchie to award commissions from time to time into all or any parts of this Realme to certaine persons to enquire of al singular such gifts assignments appointments and of the abuses breaches of the truce negligences misimployments not imploying concealing defrauding misconuerting or misgouernment of any lands tenements rents c. goods chattels money c. heretofore giuen or assigned or which hereafter shal be giuen limited or assigned to or for any the charitable or godly vses before rehearsed And after such enquiry hearing and examining thereof to set downe such orders iudgements and decrées as the same lands tenements rents goods money c. may be duly and faithfully imployed to and for such of the charitable vses and intents aforesaid respectiuely for which they were giuen or appointed by the donors and founders thereof 26 Because when tenants for terme of life tenants in dower or by the curtesie of England or tenants after possibilitie of issue extinct were impleaded they would often be of couin with the demandants that the tenemēts demanded should be recouered against them they would not pray in ayde nor vouch to warrantie them in the reuersiō but plead in chiefe such a plea wherby they knew the tenements should be lost for the preuention and eschewing of which couin St. 13. R. 2. 16. by a stat made an 13. R. 2. it was ordained That if any such tenant be impleaded and he in the reuersion come into the Court and prayeth to be receiued to defend his right at the day that the tenant doth plead to the action or before he shal be receiued to plead in chiefe to the action without taking delay by voucher ayd-prayer nonage or other delay whatsoeuer Couin by a particular tenant to defraud him in the reuersion so that after such receipt he shal haue no delay by protection essoine of the Kings seruice or common Essoine but the sute shal be hastened as much as it may be by the lawe And dayes of grace shal be giuen by discretion of the Iudges betwixt the demaundant and him which is receiued and not the common daies giuen in pleas of land except the demaundant will thereunto assent to the intent the demaundant shal not be too much delaied which must plead with two aduersaries And he in the Reuersion which praieth to be receiued shall finde sureties for the issues of the Land aswel where the receite is counter-pleaded as where it is grauted Stat. West 2. 13. Ed. 1. 3 And by the Statute of Westminster 2 it was established That if by default or yeelding of such tenant in dower or c. iudgement shal be giuen then the heyres or they which haue the reuersion shal recouer after the death of such tenants by a writ of Entrie ad communem legem The wiues receit vpon the husbands default And by the same Statute of Westminster 2. it is also ordained That if in an Action brought against the husband and the wife of lands which bee the right of the wife the husband will absent himselfe and will not defend his wiues right or will against his wiues consent yeeld the land If the wife wil come before iudgement and be ready to answere to the demaundant and to defend her right she shal be thereunto admitted And for the further auoiding of Couin in Recoueries suffred by particular tenants by the Statute of Anno 14. Eliz. it was enacted Stat. 14. El. 8.
That all recoueries to be had or prosecuted by agreement of the parties Recoueries against particular tenants by Couin to defraud him in the reuertion or by Couin against any tenants by the Curtesie of England Tenants in taile after possibilitie of issue extinct or otherwise onely for the terme of life or liues or of estates determinable vpon life or liues of any lands Tenements or hereditaments whereof the same particular Tenant is or shal be seised of any such particular estate as is aforesaid or against any other with Voucher ouer of any such particular Tenant or of any hauing or that had right or title to any such particular estate or tenancie as is aforesaid shal as against such person or persons to whom any reuersion or remainder thereof by force of any Conueyance or deuise before that time had or made shall ought or lawfully may appertaine and against their heyres and successors be vtterly voide Prouided alwaies that this Act shall not extend to any person or persons that shall by good title recouer any lands tenemēts or hereditaments without fraud or Couin by reason of any former right or title But al euery such recouerie and recoueries vpon former rights and titles shall stand and be in like force as they were before the making of this Acte And in all and euerie recouerie and recoueries to be had or prosecuted of any lands tenements or hereditaments by the assent and agreement of any person or persons to whom any reuersion or remainder thereof then shall or ought to appertaine so that the same assent and agréement doe appeare of record in any of the Kings Courts shall stand in like strength and of like effect against such person and persons that shal so assent and agree their heyres successors as they were before the making of this act 27 And for that Couin and fraud should be restrained and punished when it shall be put in practise or intended by those in reuersion to defeate their Lessees of their termes for yeares as it was by the aforesaid Statutes when it was executed by particular Tenants to the preiudice or disheritance of them in the Reuersion Couin by him in the reuersion to defeate his Lessee for yeeres Therefore by a Statute made Anno 21. H. 8. Stat. 21. H. 8. 15 Stat. 6. E. 1. 11. it was enacted That if any persons doe make leases of their lands tenements or other hereditaments by Indentures or without writing to other persons for terme of yeares if after the same Lessors their heires or assignes do cause or suffer recoueries to be had against them in the Kings or any other Lordes Court vpon fained and vntrue title by craft and Couin to put the said Termors from their Termes all such Termor shall and may falsifie for his terme only such recouerie in such wise and forme as a tenant of fréehold shall may doe by the course of the cōmon law where such tenant was neither priuie nor party to such recouerie And the same Termors their Executors assignees notwithstanding such recouerie so had shall enioy retaine and hold their said termes according to their said leases against all such recouerors their heyres and assignees And the said recouerers their heyres and assignees after such recouerie so had shal haue like remedy against the said termors their Executors and assignees by auowrie or action of debt for the rents and seruices reserued vpon the same leases being due after the same recoueries also like actions against them for waste done after the same recoueries so had in like manner and forme as the said Lessors should or might haue had if the same recoueries had neuer beene had No manner of Statute of the Staple Couin to auoide a Statute or recognisance statute marchant nor execution by Elegit shal be auoided by meanes of any such feyned recouerie but all persons hauing any lands tenements or other hereditaments in execution or being intituled to haue execution of any lands or tenements by any such meanes shal haue like remedie to auoide and falsifie the same recouerie as before is prouided for the lessee for terme of yeares 28 There haue beene many lawes and Statutes deuised from age to age to restraine and punish seueral sorts of deceits Couins collusions and frauds but most to encounter and checke fraudulent deeds cōtriued of malice or guile to defeate Stat. 50 Ed. 3. 6. 1. R. 2. 9. 2. R. 2. 3. 3. H. 7. 4. 13. El. 5. 27. El. 4. delay or hinder others of their lands leases goods cattels debts c. as it appeareth by the statute made A. 50. Ed. 3. 1. R. 2. 2. R. 2. 3. H. 7. 13. El. 27. El. But as deceit and fraud increased in this realme so new penalties and greater punishments were inuented from time to time to inflict vpon the transgressors therin And because fained couenous and fraudulent Feoffmēts gifts graunts alienations conueyances bonds sutes iudgements executions of lands and tenements goods and cattels being deuised of Couin guile to defraud creditors and others of their iust and lawful actions dets c. be not only to the let of the due course and execution of law iustice but also to the ouerthrow of all true and plaine dealing bargaining and cheuisance betweene man and man without the which no common weale or ciuill societie can bee maintained or continued Therefore by a Statute made A. 13. El. it was enacted Stat. 13. El. 5 Stat 29. El. 5. That all and euery Feoffment gift graunt bargaine alienation Fraudulent deeds to auoide other mens debts and duties and conueyaunce of lands tenements hereditaments goods cattels or of any of them or of any lease rent common or other profite or charge out of the same lands hereditaments goods c. or any of them by writing or otherwise And all and euery bond sute iudgement and execution at any time had or made sithence the beginning of Queen Elizabeths raigne or at any time hereafter to be had or made which haue beene and are deuised contriued of malice fraud couin collusion or guile to the intent c. to delay hinder or defraud creditors others of their iust lawfull actions sutes debts accompts damages penalties forfeitures hariots mortuaries or reliefes shal be taken deemed onely as against that person his heires executors successors or assignes whose actions sutes debts accoūts c. by such guileful couenous or fraudulēt deeds deuises practises as is aforesaid are shall or mought be in any wise disturbed hindered delaied or defrauded to be cléerly void of none effect any colour fayned cōsideration expressing of vse or any other matter to the cōtrary notwtstanding And al euery the parties to such fained or fraudulēt feoffment gift graunt alienation bargaine conueyance bond sute iudgement execution Parties to fraudulent deedes c. or being priuie and knowing of the same or any of them which
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
is an oppression and for the redresse thereof the same tenant may pursue against his lord a Writ of Ne iniuste vexes grounded vpon a braunch of the statute of Magna Charta St. 9. H. 3. 10 thereby commaunding the Lord that he shall not oppresse nor vniustly vexe his tenant for more rent or seruices then hée ought to pay or doe 12. E. 4. 7. 28. Ass p. 33 5. Ed. 4. 82. Or otherwise the tenant may auoid this surplusage of rent in an Assise Writ of Rescous or Cessauit brought against him by his lord but in a Repleuin he cannot auoid his lord of this rent newly incroched séeing the same lord hath had seisin thereof and so it is if the lord of a Manor 40. Ed. 3. 44. 49. Ed. 3. 22. 39. E. 3. 6. which is auncient demesne will encroch vpon his tenants and distraine them or any of them that hold their lands by Charter fréely to doe other seruices or customes to the same lord then they ought to doe or that their auncestors were accustomed to do this is an oppression of the same tenants and for the redresse thereof all the tenants of the said auncient demesne Manor may haue against their said lord the kings writ of Monstrauerunt directed to the said lord commaunding him thereby that hée shall not require nor cause to bée required of his said tenants more seruices or customes then they ought to doe Fitz. Na. Br. 14. or had wont to doe And if after the said writ directed he will distraine the goods of them or any of them againe to doe more seruices then they ought to doe Then the same tenants or such or so many of them as bee so distrained may procure an attachment against their said lord Fitz. Na. Br. 15. returnable in the K. Bench or common place for this oppression and contempt wherin euery of the same tenants shall recouer his dammages seuerally according to his losse 8 Euery excessiue amerciament which one person doth take of another Oppression by excessiue amerciament is also to be accounted an oppression of the party so amerced for by the Statutes of Magna Charta West 1. St. 9. H. 3. 14 3. Ed. 1 6. it is ordained That no Citie Borough Towne or man shall be amerced but for a reasonable cause and according to the quantitie of his offence and euery fréeman shall bée amerced sauing his fréehold a marchant sauing his marchandize and euery other mans villaine besides the kings sauing his villaine tenure and the same amerciaments shall bee assessed by the oath of honest and lawfull men of the same vicenage So that if one person doe take a much greater amerciament of another then the quantitie of his offence doth require in a Court Baron or other Court which is not of record or doe take that amerciament of his owne authoritie without being before assessed by others vpon their oathes and so maketh himselfe iudge in his owne cause this is an oppression of the party amerced for the redresse whereof the party grieued may procure to be directed to the lord of the said Manor or to his Baylife a Writ of Moderata misericordia which was founded vpon the said stat of Magna Charta commaunding them thereby Fitz. Na. Br. 75. that they shall take a moderat and indifferent amerciament of the same person according to the quantity of his offence And if the lord or his baylife will not then cease to distraine for the said excessiue amerciament the partie so oppressed may haue against the offendor an attachment directed to the Shirife of that Countie where the same Distresse is taken to attach him to appeare in the kings Court and to answere his said offence Oppression by committing of wast 9 The Wast and Estrepement which one person hauing a particular estate in another persons land doth make or commit to the disheritance of him in the reuersion or remainder of the same land without his consent may also be accounted an oppression of him in whom the said inheritance is for when one person doth lease or otherwise conuey his land to another for the terme of life liues or yeares he doth in effect but lend the same land to the sayd particular tenant for the terme betwéene them agréed vpon expecting to haue the same againe at the end of the terme in as good plight and in such sort as it was when he first did deliuer and lend it And therefore if the particular tenant during the continuance of his estate doe commit any wast in the same land he cannot deliuer it againe at the end of his terme in such plight and sort as at the first he did receiue and borrow it but by the wast the perpetuall profit of the land is impaired and therefore of so much in value hée in the reuersion or remainder is disherited And for the preuention thereof by the statute of Marlebridge it was ordained St. 52. H. 3. 24. That Farmors during their termes shall not make wast sale or exile of houses woods or men nor of any thing belonging to the Tenements which they haue in farme without they haue speciall graunt in writing making mention of a couenant that they may doe it And to the intent that condigne punishment might bée prouided and inflicted vpon such as should be transgressors and oppressors in these cases of Wast by the statute of Gloucester it was enacted St. 6. Ed. 1. 5 That a man shall haue an action of Wast in the Chauncerie against him which is tenant by the courtesie of England The tenants forf which cōmitteth wast or otherwise tenant for terme of life or for terme of yeares or against a woman which holdeth in Dower and he which shall bée attainted of Wast shall forfeit the thing wasted and besides shall pay treble so much as the Wast shall be taxed and after by the statute of Westminster the second the same was in a sort confirmed St. 13. E. 1. 14 and the said action of Wast was againe giuen against the foresaid tenants by the courtesie in dower for terme of life or yeares and also ordained to extend against Gardens And by the same statute the proces to be vsed in the said action of Wast was assigned to be Summons Attachment and Distresse and if the party defendant doe not appeare at the distresse then a writ shall be awarded to the Shirife to inquire of the wast by the oathes of twelue men And because diuers persons did let their lands to others sometime for terme of life or anothers life and sometime for terme of yeares and after the said tenants did graunt their estates which they had in the same Lands and Tenements to others to the intent that they in the reuersion viz. their lessors their heires or assignées should not take knowledge of their names and yet the first lessees did continually occupie the said Lands and tooke the profites to
their owne vse and in the said Lands and Tenements did commit wast and destruction to the disheritance of them in the reuersion For the restraint and punishment of which said offence being both an oppression and also a fraud and deceit St. 11. H. 6. 5 Fit N.B. 59 by a Statute made Anno 11. H. 6. it was ordayned That they in the reuersion in such case may haue and maintaine a writ of Wast against the said Tenants for terme of life anothers life A termor alieneth his estate occupieth the land coÌ„mitteth wast or for yeares and so recouer against them the place wasted and their treble dammages for the wast so by them done as they ought to haue done for the wast done by them before the said Graunt and Lease of their estate Prouided That this Ordinance shall not hold place but where the first Tenants before the Graunt and Lease of their estates in the manner and forme abouesaid were punishable of wast and also where after the said Graunt and Lease the said first Tenants of the said Landes and Tenements do take the profits at the time of the wast done to their owne proper vse And though the wordes of the said Statute doe giue an action of Wast in the case aforesaid but onely to him in the reuersion Co. li. 5. 77. yet he in the remainder also being in the like mischiefe shall or may take the benefit thereof and maintaine an action of Wast in this case against his particular Tenant for life or yeares if eyther of them doe commit wast to his disheritance And whatsoeuer the intent of the Grauntor is in the case aforesaid yet if the Grauntée doe assigne his Lease take the profits thereof and commit Wast he is punishable according to the sayd Statute for his intent shall not be issuable nam exitus acta probat viz. the taking of the profites doe sufficiently expresse his intent and euery assignée of the first Tenant mediat or immediat is within the compasse of this Statute for the Statute was made to suppresse Fraud Wast and Oppression And so was the Statute of Westminster the second béeing made and prouided to restraine Wast and Oppression committed by one Tenant in common to the preiudice and disheritance of another by which it was ordayned St. 13. E. 1. 22 That whereas two or more doe hold Wood Wast coÌ„mitted by a tenant in common Turbarie Fishing or such like things in common wherein none knoweth his owne seuerall and one of them doth commit Wast against the will of the other an action of Wast may lye and when it is come vnto iudgement the defendant shall chuse eyther to take his part in a place certaine by the assignement of the Shirife and by the view and oath of his neighbours sworne and tryed for the same intent or els he shall grant to take nothing from thenceforth in the same Wood 3. E. 1. Wast 25. 50. Ed. 3. 3. Turbarie and such other but as his parteners will take And if he doe chuse to take his part in a place certaine the place wasted shall be assigned for his part according as it was before he committed the Wast And because the before rehearsed statute of Marlebridge doth expresse in generall termes in what thinges Wast may be committed as in Houses Woods and Men and the words of the writ of Wast in the Register be Quare fecit vastum venditionem seu destructionem de terris domibus Boscis Gardinis and the foresaid Statutes of Anno 6. Edw. 1. 13. Edw. 1. and 11. H. 6. doe declare who are forbidden to doe that Wast and séeing Wast in Lands Houses Woods or c. is a great wrong and oppression to him or them in reuersion or remainder of the same therefore I will somewhat particularly explaine which the Law doth construe and expound to be Wasts prohibited and punishable by the foresaid Statutes or either of them to the intent that both he that hath the inheritance and also the particular Tenant may know what is due to either of them in respect of their seuerall estates and what to take and what to leaue And to begin with the words of the Writ touching Wast in Land Wast in land If one person doe demise or conuey to another for the terme of yeares life or c. Land 22. H. 6. 18 2. H. 7. 14 17. E. 3. 7. 9. Ed. 4. 35. Co. li. 5. 11. Fit Nat. Br. 149. Lib. in t 6â—6 where there is included in the bowels of the earth Tynne Yron Lead Coale Stone Grauell Morter Sand Chalke or Marle if the Myne or Pit thereof be not open when the Lessées estate or terme doth begin the said Tenant may not open the ground make a new Myne and take the same Coale Stone Grauell or c. for if he doe it is Wast of the land and he in the reuersion or remainder may punish him therefore by an action of Wast For whereas there was assured to the Tenant but Vesturam terrae and the annuall profit of the Land hée hath digged and carried away the Land it selfe and impaired the inheritance thereof for euer But if there bée a Myne or Pit open in any part of the ground so demised or assured at the time of the Lease or assurance thereof or at the time when the estate of the Tenant did begin then the Tenant may digge there and take and carry away so much of the Coale Stone Grauell as shall be necessarily vsed or imployed for or towards the repaire or maintenance of the House Land or other commodities therewith demised and it is no Wast But if he do giue sell 41. E. 3. Wast 82. or otherwise dispose the same to any other person place or vse sauing as is aforesaid then for so much as he shall so mis-imploy it is Wast If one person doe lease or assure his Land to another and all the Mynes or Pits therein for yeares life Co. li. 5. 11. or c. the Lessée may open and digge the ground for Coale Morter Stone c. and take and carry away the same though there was not any Myne open at the time of the Lease or estate made For by the assurance it doth appeare that the Lessor was contented that wast should be made in any part of the ground leased by myning or digging and in this case the Lessée may sell or otherwise dispose the same Coale Stone Marle or c. at his pleasure 17. Ed. 3. 7 for it is as much as if the Lease or assurance had béene made to the Tenant without impeachment of any manner of Wast to be committed by Mynes Pits or diggings If the Tenant for yeares life or c. doe eyre plough vp and conuert into Tillage or Wood ground an auncient and vsuall mâ—wen Meddow it is Wast and so it is 15. H. 3. Wast 131. 46. Ed. 3. Wast 91. if he doe drowne or
for without the glasse it is not a perfect house The same Law is of Wainscot whether it bée affixed to the house by the lessor or by the lessée or whether it bée fastened by great nayles or small nayles or by screwes or yrons put through the postes or wals or by any other meanes yet if it bée taken away it is Wast and the Tenant of the house shall bée punished for it by action of Wast for it is made parcell of the house as séeling and plastering of a house is For the sayd Furnace Bench Table Doore Glasse 20. H. 7. 13. 21. H. 7. 26. and Wainscot are made parcell of the inheritance of the house as the Wals Beames and Transomes bee and they shall discend to the heire of the house and not accrue to the executors Neither shall they bée forfeited by Vtlarie nor attached in an Assise as Chattels may But if in any of the cases aforesaid the Tenant doe repaire the house or thing wasted 20. E 3. Wast 32. 22. H. 6. 58. 28. H. 6. 2. 38. Ass p. 1 42. Ed. 3. 22. and make it so long so broad so high and in such and so good sort as it was when his estate did begin before any action of Wast shall bée brought against him therefore then no action of Wast is maintenable against him for that cause Notwithstanding if any house wall couered or c. were ruinous at the time of the beginning of the Tenants estate 22 H. 6. 18 21. Ed. 4. 39. and after the Tenant doe pull it downe and build it againe though it bée not so large as it was before yet is it no Wast neither is the Tenant punishable therefore by an action of Wast for that he had not béen punishable therefore if hée had suffered it wholly to decay and not haue builded againe any part thereof If Wast bée committed in seuerall principall parts of a house 4. Ed. 3. 32. 8. Ed 2. Wast 112. 12 Ed. 3. Wast 108. 127. he in the reuersion or remainder thereof may by an action of Wast recouer the whole house for this dispersed Wast As in like case if Timber Trées of Oake Ash or Elme bée felled in seuerall parts of a Wood or Close hée in the reuersion or remainder may by an action of Wast recouer against the Tenant the whole Wood or Close for this dispersed Wast To procéede according to the wordes of the Writ with Wast in Woods Wast in woods If the Lessée for yeares Lessée for life Tenant in Dower Plo. Com. 470. 3. E. 6. Dyer 65. 7. H. 6. 40 21. H. 6. 46 14. H. 4. 12. or c. doe sell or fell Oakes Ashes or Elmes béeing of twenty yeares growth and aboue the value of thrée shillings foure pence this is Wast and punishable by an Action of Wast For those Trées of that age will endure long bée méete for Building and bée parcell of the inheritance of him in the reuersion or remainder 27. H. 6. Wast 8. 29. H. 8. Dyer 36. Co. li. 4. 64 and notwithstanding the said lease or any other particular estate for life assured the same trees be the leassors and not the leassees though the leassor cannot fell them or graunt or sell them to any other without consent of the tenant for that the said tenant hath the loppe and maste of them and shade for his cattell And likewise if the boughes or braunches of any of the same trées beeing of the said age of twentie yeares bée cut downe by the tenant the same is also wast for they in like sort may serue for building But if a house with certaine ground be assured to a tenant for terme of yeares life or c. whereupon Oake 7. H. 6. 40. 41. Ed. 3. Wast 82. Ash or Elme aboue twentie yeares of age be growing if the same house doe fall in decay during the said terme the said tenant of his owne authoritie without the assignement of the Leassor may fell sufficient of the said Oake Ashe or Elme to repaire the same house for the Law hath ordained that one commoditie or parcell of the farme demised shall help to maintaine the other And so the tenant if hee will may fell timber to repaire the house though the same were in decay at the time of his entrie Notwithstanding 12. H. 8. 1. 7. H. 6. 40. 29. H. 8. Dyer 36. 49. E. 3. 1. 42. Ed. 3. 22. 11. H. 4. 31. 9. H. 4. Wast 59. 9. H. 6. 66. if hee bée so disposed hee may permit the same house which he so found in decay to bee vtterly ruinated and fall downe for hée need not keepe the house in other repaire than he receiued it But if the tenant doe giue or sell any timber or fell more for any of the vses aforesaid than is necessarie and sufficient or doe fell any timber to build a newe house where there was none vpon the ground before then he may bee punished therefore by an Action of wast And the same Law is of a Copieholder who can fell no timber but to repaire his houses which hee holdeth by copie of Court Roll. The felling of Maples Sallowes Willowes Hornebeams Crabtrees 46. E. 3. 17. Hasils Thornes or such like is no wast for that they will not continue long nor serue for building And therefore they are accounted seasonable wood and are lawfully to bée felled by the termor and to bée spent vpon the same ground for house-bot 12. H. 8. 1. plough-bot hedge-bot fold-bote or fire-bote which the Law doth allowe to the termor for yeares or life And the tenant may fell Oakes Ashes or Elmes for any of the purposes aforesaid 21. H. 6. 46. if there be no vnderwood growing vpon the same ground to be imployed to those vses By the custome of some countrie where wood is plentifull Oakes Ashes and Elmes vnder twentie yeares groweth be called vnderwood 11. H. 6. 1. Lib. Intr. 617. or seasonable wood and may be felled by the termor for any of the vses aforesaid and so may wrangles aboue twentie years growth which are neuer like to prooue timber or méete for building but in some other countries where wood is scant it is otherwise Felling of seasonable wood 40. E. 3. 25. Fitz. N.B. 59. which is vsed to bée cut euery seauen tenne fiftéene or twenty yeares is no wast Neither is it wast for the tenant to fell and take dotards or to take windfalles wherein there is no timber for they bee the tenants to vse and spend as is aforesaid 7. H 6. 40. Co li. 4. 64. Fit N.B. 59 29. Ed. 3. 33. But windfalles wherein there is any timber bée the Leassors And so is the timber of a house which doth decay and fall downe during the terme the Leassors vnlesse the tenant will reedifie the same house and imploy the said timber in the building thereof againe Though the felling of Willowes or other such like
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
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
who was accessarie before the birth of the childe and the murder done was adiudged to continue accessarie after the murder done and to suffer death without the benefit of his Clergie Fitz. Cor. 383 30 If a man intending the death of another Meaning without act is not homicide doth beate him so gréeuously that he doth leaue him by all the beholders iudgement thought to be dead and then doth flie away and after the other doth reuiue and liue this is not felony in him that did that violence though it doth plainely appeare that hée had a meaning to kill him for it is not felony except the partie stricken be indéede killed and die within a yéere and a day after the stripes giuen But on the other side if one man doe strike another with intent onely to beate him yet if hée die of this battery within a yeare and a day after it is felonie in him that did strike him For though as Bracton affirmeth Act without meaning is homicide the old Lawe of this Realme did hold Quod in maleficijs spectatur voluntas non exitus nihil interest vtrùm quis occidat an causam mortis praebeat But now we say Lex antiqua mutatur and doe affirme Quod exitus in maleficijs spectatur non voluntas duntaxat Co. l. 4. 40. 31 A man brought drinke to another that was mingled with poison Homicide by giuing poisoned drinke to another and aduised him to drinke it telling him that it would be a meane to procure him to get a childe of his wife by reason of which perswasion he to whom that poisoned drinke was brought did receiue it after drunke it in the absence of him who brought it vnto him and shortly after died In this case hee that brought the drinke was adiudged a principall murderer though he was not present at the time of the receipt of the drinke or otherwise he shoulde haue beene guiltie of that horrible offence and yet haue escaped vnpunished for there was none in this case to whom hee could be accessarie And so note this for a speciall case where a felonie is committed and neither principall nor accessarie be present at it Many doe attempt an vnlawfull acte and one of them committeth homicide 32 If seuerall persons assemble together to doe a disseisin Fitz. Cor. 350. 11. H. 4. 13. to breake a house or commit any vnlawfull act and of them killeth a man he and all the other shal be adiudged principall fellons because they all came to doe an euill acte though not that act As if they all had come to haue killed or robbed one man and after they killed or robbed an other Homicide by carying abroad 33 A man was indicted that he did feloniously carry his owne father being sicke against his will in a frostie and colde time from one towne to an other whereof he died and this was adiudged felony in him 2. Ed. 3. 18 for in this case the sonne had a meaning that his fathers life should be shortened and he brought to his death A man dieth in the hands of a Phisition or Surgion 34 If a phisition ar surgion hath a man in his cure Fit cor 163 who dieth being in his cure or at any time after this is not felony in the same phisition or surgion bicause he did not any thing to his patient with a felonious intent but against his will And moreouer it is not to be discerned whether the man came to his death by any willfull default in the said Phisition or Surgion or by his former infirmitie or other cause Homicide vpon the euill wordes of an other 35 Anno. 3. Ed. 3. Itin. North Fit cor 331 it was presented that through the euill wordes of a woman two men did fall out and fought and one of them killed an other and this was adiudged felony in the woman But it must be intended that the woman by her words did perswade councell or aduise them or one of them to fight with the other and so was accessarie before the felonie committed Homicide by a franticke man 36 A man that is franticke though he kill an other man M. 21. H. 7. 13. Fitz. forf 33 Fi. Dower 183. Fitz. N. b. 202. d Fitz. cor 193 351. Co. l. 4. 42 26. Ass p. 27 Plow com 19. Co. l. 4. 125 cannot commit murder for he hath not a felonious intent nor doth carrie within him malice prepenced to any neyther doth know what he doth And therefore he is not to be arraigned for the killing of a man in his Lunacie though after hee doth recouer his memorie neither shall he be inforced to sue for his pardon And the same law is of a man that is deafe and dumbe who can not commit murder for he hath not a felonious intent neither doth he know what hee doth And therefore if he kill a man he shall not be arraigned thereof nor driuen to sue for his pardon But if a man that is drunke doe in his drunkennes kill an other man it is felony and he shal be hanged therefore for it is voluntarie ignorance in him to be drunke Homicide by an Infant 37 An Infant of the age of twelue yeares 3. H. 7. 2. 12. 12. Aff. p. 30 or aboue may commit murder and so may an Infant of the age of eight or nine yeares if it may appeare by hiding of the person slaine or by any other act that the aboundance of his malice doth excéede the tendernes of his yéeres But if an enfant of tender and yonger yéeres doe kill a man this is no felonie because he wanteth discretion and vnderstanding Pl. com 19. and the Lawe will impute it to the ignorance which commeth to him by nature Fit cor 311. 38 If a man hath a beast that is accustomed to doe hurt Homicide by a beast and the owner knowing thereof doth not tie him or otherwise kéepe him fast shut vp but suffer him to goe at libertie and after that beast killeth a man this is felony in the owner for by his sufferance of the beast to goe at libertie the owner doth seeme to haue a will to kill or that hée vsed this beast as an instrument wherewith to kill And this was a Lawe ordained by Alured Alured king of the West Saxons Fit cor 263 22. Ass p. 94 39 To make it Homicide it is requisite that the partie killed be in Esse In homicide the party killed must be in Esse viz. in rerum natura for if a man kill an infant in his mothers wombe this is no felonie neither shall he forfeit any thing for it and that for two causes the one because the thing had no name of Baptisme the other for that it is hard to iudge if the infant died of that batterie or not or vpon some other cause Wherefore a man being indicted in
attainted by Outlawrie to whom he is appealed or indicted as accessorie without hauing regard to the residue 41 To haue Processe awarded against the Enquest for the triall of the accessorie it is requisite that the attainder of the principall be in the same sute The attainder must be in the same sute in the which he and the accessorie be sued for if he be attainted in another sute that shall not enforce the accessorie to procéede with his Enquest vntill the principall which is sued with him doth appéere or be attainted by processe of outlawrie c. As in appeale of homicide against the principall and accessorie 7. H. 4. 36 and the principall before that time is attainted of the death of the same man vpon an indictment at the Kings sute And the accessory shall pleade for his owne discharge the acquitall of the principall in an other sute so that it be an acquitall for that offence for the which he is charged as accessorie 7. H. 4. 27 42 If the principall be attainted of the death of a man and then dieth The principall attainted and dieth and the Iustices before whom the accessorie is sued haue the record of the same attainder before them then they may procéede against the accessorie otherwise not for it doth by the Record appéere vnto them that hée which was appealed of the fact is by Lawe attainted of felonie according to the foresaid Statute of Westminster 1. though he was not executed therefore The principall standeth mute 43 And though the Lawe be Fit Cor. 58 that an Enquest shall not procéede against the accessorie to trie him vntill the principall doe appeare or be attainted by outlawrie yet if the principall doe appeare and will say nothing but stand mute the accessorie shall be arraigned Sed quaere for the principall is not attainted of felonie Error in the Attainder of the principall 44 If the Attainder of the principall be erronious 2. R. 3. 22. yet the accessorie shall be arraigned for the accessory shall take no aduantage of any errour committed in the attainder of the principall An absured accessorie returneth 45 If one do abiure as accessory and after doth returne againe Fi. Cor. 124 the principall not being attainted the accessorie shall be hanged for that he hath confessed the felonie before the Coroner and did returne without the Kings pardon or licence The accessory tried vpon his owne request 46 If the accessory of his owne desire wil wage battel before the principal be attainted and be subdued therein Fit Cor. 12 or will desire to haue an Enquest to try him before the principall be attainted and be found guiltie therefore In both these Cases he shall be hanged though by the Lawe he was not compellable to either of the said trialles vntill the principall had béene attainted for hée hath aduentured his life in hope to gaine his libertie 47 If the principall be found not guilty The principall found not guiltie by verdict Bracton the accessorie shall be discharged thereby for where there is no déeâ—e there can no force ayde or commaundement hurt in that the intended iniury tooke no effect So that the acquitall of the principall is in Lawe the acquitall of the accessorie The principall dieth in prison before attainder 48 If the principall can not be tried as if he die in prison before he be attainted of the felonie the accessorie shall be thereby discharged for there can none be found accessorie to a felonie Co. l. 4. 43 where there is none attainted to commit the same felonie But otherwise it is if the principall be attainted of the felonie and dieth there the accessorie shall be arraigned and hanged if he be found guiltie The principall attainted of an other felonie 49 If the principall be attainted of another felonie and hanged Fi. Cor. 378. before he is attainted of this felonie whereof he and the accessorie be indicted the accessorie to this felonie shall be discharged thereby And the same Lawe is if hee be attainted of the first felonie though he be not hanged because in that case after attainder he shall not answer to other felonies but onely to robberie and treason The principall slew the paâ—tie in his owne defence 50 If it be found by verdict that the principall slew him Fi. Cor. 116 of whose death he is arraigned in his owne defence the accessory shal be therby discharged And yet the principall shall be enforced to purchase his pardon But this pardon prooueth not that he is guilty in other maner than in his owne defence Notwithstanding in an other pardon it is otherwise for if a principall pleade his pardon to a felony generally without any special matter found which should cause the pardon 2. Ed. 3. 27 Fi. Cor. 260 3. Ass p. 14 42. Ass p. 16 and is by that discharged yet that will not discharge the Accessorie but he shall be hanged if he be found guiltie of the felonie for by that pardon the felony is confessed of the which felonie he praieth to be discharged by the Kings fauour and not by the benefit of lawe as he doth in the other case 3. H. 7. 12 10. H. 4. 5 13. Ed. 4. 3 Bro. Cor. 184 51 And in the like case and vpon the same reason The principall hath his clergie if the principall and accessorie be arraigned of felonie and both be found guilty and the principall doth pray and hath the benefit of his clergie yet the accessorie shal be hanged for by the praying of his clergie the felonie is confessed and the principall in this case is not saued by his innocencie but by a priuiledge in Lawe which the accessorie being no clarke cannot take the benefit of But it is otherwise if there be principall and accessorie and the principall is pardoned or hath his Clergie before iudgement Co. l. 4. 43 the accessorie shall not be arraigned for where there is no fact there is no force and where there is no principall The principall is pardoned or hath his clergie before iudgemeÌ„t there can be no accessorie and no man can be accompted principall before it be so prooued and adiudged by the Lawe and that must be by a iudgement vpon a verdict confession or outlawrie and it is not sufficient that indéed there be a principall vntil that appéereth by a iudgemeÌ„t in Law And the acceptance of pardon or the praying of his clergy is an argumeÌ„t but no iudgement in law that he is guiltie But if the principal after attainder be pardoned or hath his clergie alowed the accessory shal be arraigned and hanged if he be found guiltie for it doth appeare iudicially that he was principall 41. As p. 24 52 The acquitall of the principall is the acquitall of the accessorie as is asaide if it be not in an appeale where the accessorie is to recouer
blood againe If the husband be killed by his wife The husband killed by his wife his sonne shall haue an appeale 33. H 8. Dyer 50 18. Ed. 4.1 And yet if in that case the King doe pardon the wife all treasons the sonne shall be barred of his appeale Appeale of death by the heire 9 If he that was slaine had no wife liuing at the time he was killed then his next heire by the common Lawe if he be male shall haue the appeale But if hée which bringeth the appeale be the next heire male to him that was slaine yet if there be another liuing which is his heire by the common Lawe though not his heire male his appeale shall abate As if he that was slaine had issue a daughter and no sonne 27. As p. 25. Fi. Cor. 384 his brother cannot maintaine an appeale against the offendor though hée be his next heire male because he is not next heire by the common Lawe to him that was slaine but his daughter is And by the same reason a Bastard nor the youngest sonne which doth inherite lands in Borough English A Bastard Heire in Borough English shall not maintaine an appeale because neither of them is heire by the common Lawe It was a custome in olde time if one were found guiltie in an appeale of murder that his wife The maner of a murderers death and all the nearest of his kinne which was murdered 11. H. 4.11 Plo. com 306 should drawe the felon who committed the murder by a long rope to the place of execution An appeale dieth with the Appellant or by his non-suite c. 10 This appeale of the death of the auncester is so tied and affixed to the next heire male at the Common Lawe of him that was slaine that if it be once attached by him although that hée die hanging the suite or be non-suite therein or doe discontinue the suite and that within the yéere 38. H. 6.13 9. H. 7.5 16. H. 7.15 yet the appeale is extinct for euer because it is but a personall action and not auncestrell for he that was slaine could not haue maintained it and therefore being but personall it doth die with the person of the appellant But it is otherwise if the appeale were not attached by the heire during his life 11. H. 4.11 â—0 H. 6.46 but that hée died before hée brought his appeale or died in the life of his auncester that was killed In that case hée which is next heire male liuing shall haue the appeale 9. H. 7.5 Stamf. fo 59 11 If the eldest sonne before the appeale commenced and within the the yeare doth release the appeale and then dieth The heire doth release and die the second sonne and euery other which claimeth as heire to the partie slaine shall bée barred thereby 16. H. 7.15 38. H. 6.13 12 If the eldest sonne doe bring an appeale and hath iudgement Recouery and death before execution and before execution of the offendor dieth his heire shall not haue execution for if he should he is to haue it as heire to him that recouered and not as heire to the partie slaine which cannot be for hée that demaundeth reuenge of his auncestors death must make himselfe immediate heire to the same auncestor which was slaine or otherwise his sute shall not be allowed which the heire of the eldest sonne in this case cannot doe 13 If the eldest sonne after the title of appeale accrued vnto him The eldest sonne disabling himselfe or during the life of his auncester that was slaine doe disable himselfe by attainder of felonie or by being a Monke a Priest or mayhemed by the Defendant Fitz. Cor. 235.322 or by any other cause So that by such disabilitie hee cannot haue an appeale yet the second sonne shall not haue it 14 If the eldest sonne doth kill his father or his mother Killing father mother brother or wife the second sonne shall haue an appeale against him Fi. Cor. 459. And if there be thrée brethren and the middlemost killeth the elder brother the youngest brother shall haue an appeale against him And yet in the foresaide cases hée that bringeth the appeale 18. Ed. 4.1 33. H. 8. Dyer 50. is not heire to him that is slaine And if the husband doe kill his wife his sonne shall haue an appeale against him 1. H. 4.6 Littl. vill 15 If the Lord doe kill his Villaine the heire of him that was slaine The Lord killeth his villaine may haue an appeale against his Lord notwithstanding that the Plaintifs in the appeale is villaine to the Defendant for the villaines heire doth not sue for the recouerie of lands goods or liberty from the Lord but onely for a lawfull reuenge of his auncesters death And if the villaines heire should not haue an appeale in this case the said offence should remaine vnpunished by appeale for none other may pursue it 41. As p. 14. 45. Ed. 3.25 27. Ed. 3.83 Kel fol. 120 32. As p. 8. 16 An Infant An Infant within the age of twenty and one yeares may haue an appeale of the death of his auncester and in like sort hée may haue any maner of appeale But notwithstanding the plea shall remaine to be tried vntill he come to his full age of one and twentie yeares for that in this case the Defendant cannot wage battell against him Attamen quaere A man of 70. yeares of age 17 A man of the age of thrée score and tenne yeares may haue an appeale of the death of his auncestour Fi. Cor. 385 and in like sort may haue any manner of appeale and yet being of that age hée shall put the Defendant from waging of battell with him Disabilities to bring an appeale 18 If the Plaintife which ought to sue the Appeale be attainted of treason or felonie or a Monke or a Priest or mayhemed by the Defendant Fi. Cor. 32â— he shall not haue an appeale Disabilities in the appellant 19 A man that is not of perfect memorie or that is deafe and dumbe Britton or a Lazar or a foole naturall shall not haue an appeale of death nor any other appeale For battell cannot be waged against any of them euery of them being vnperfect to performe the same Pleading that the appellant hath an elder brother 20 If one brother doe bring an appeale of the death of his auncestor 7. Ed. 4. 15 it is no plea for the appellée to say that the said auncestor at the time of his death and after the Writ purchased had an elder brother named B. to whom the appeale is giuen and not to him that is plaintife for it may be that the same B. was his brother of the halfe bloud And therefore the surest way is to begin his plea with the father of him that was slaine as to say that such a man tooke to
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
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
shal take an oath which is his abiuration The oath of abiuration in this manner viz. Heare you this Master Coroner Bracton Britton That I A.B. am a théefe of two beasts or a killer of a man and a felon of the kings of England and because I haue committed many offences and thefts in this Realme I doe abiure the Kingdome of our Soueraigne Lord King Iames And I must make haste towards the port of S. which thou hast giuen mee And I must not goe out of the high waie and if I doe then I yéeld to bee taken as a théefe and felon of our Soueraigne Lord the Kings at the port I will diligently séeke passage and will not tarrie there but one flowing and ebbing if I may haue passage And if I cannot haue passage in this time I will go euery day vp to the knées into the sea assaying to passe ouer And if I cannot do it within fourtie daies together I will returne to the Church as a thiefe and felon of our soueraigne Lord the King So helpe me God c. And notwithstaÌ„ding the words of the said oath the offendor not the Coroner ought to make the election of the port whither he will goe where he will make his passage and he must make his abiuration at the dore of the Church-yard Fi. Cor. 407 Britton 11 He that doth abiure the Realme must haue vpon him but his coate The attire of an abiured person his shirt and his bréeches and his head shal be vncouered he must carrie a crosse in his hand which as Polidore saith is a token that his life is saued by religion and whatsoeuer he hath beside is forfeited to the King and neither the Coroner nor any of his seruants shall take any thing of the offendors for their fée St. 9. E. 2. 10 12 By the Statute of Lincolne made anÌ„ 9. E. 2. The vsing of persons abiured They they that abiure the Realme so long as they be in the high way shal be in the Kings peace and bée troubled of no man And whilest they be in the Church their kéepers shall not tarie in the Church-yard except necessitie or perill of escape doe require it and so long as they be in the Church they shall not be compelled to depart but may haue those things which be necessarie for their liuelihood and may go forth to discharge nature 7. H. 7. 7. Fi. Cor. 14 But if an abiured person be molested in the high way and drawne out of the way and imprisoned yet that will not excuse him when he is againe at libertie if he doe not within conuenient time after his libertie returne to the way leading him to the port or place whereunto vpon his abiuraration he made choice to goe But if he doe goe out of the high way vpon ignorance or to ease nature that shall not hurt him so that he doe returne to the high way in conuenient time or doe his good will to returne 13 After abiuration if the offendor doe any thing contrarie to his oath After abiuration broken death viz. contrary to his abiuration he shal be put to execution vnlesse he be a Clerke and in that case shal be saued from death by his Clergie because the Prelates and Clergie did complaine in Parliament that though a Clerke ought not to be iudged by a temporall Iudge nor any thing may be done against him that concerneth life or member neuerthelesse temporall Iudges caused Clerks flying vnto the Church and confessing their offences to abiure the Realme and for that cause admitted their abiurations although hereupon they cannot bée their Iudges and that so power was wrongfully giuen to Laie persons in the punishment of such Clerks And if such should chance after to returne into the Realme the said Prelates and Clergie desired such remedie to bee prouided therein that the immunitie or priuiledge of the Church may be preserued vnbroken St. 9. E. 2. 15 Vpon which request by a Stat. made anÌ„ 9. E. 2. intituled Articuli cleri it was enacted That a Clerke flying to the Church for felonie to obtaine the priuiledge of the Church shall not be compelled to abiure the realme but yéelding himselfe to the law of the realme shall enioy the priuiledge of the Church according to the laudible custome of the Realme heretofore vsed Which said Statute being but a rehersall restoring and confirmation of the common law is thought not to be repealed by the words of the foresaid stat of 1. Iac. â—â— 1. Iac. 25. And so it appeareth by this stat that if he which doth flie to a Church will say that hée is a Clerke A Clerke need not abiure he shall not be compelled to abiure and if he doe abiure of his own good will and thereby doth lose his lands yet to saue him from execution hee shall haue his Clergie S. St. 28. H. 8. 1. Clergie 5. Where no felonie no abiuration for felonie 14 A maried wife béeing desirous to bee deliuered from her husband Fi. Cor. 425 did flie to a Church and acknowledged a felonie where she neuer had committed any felonie and desired to abiure and her husband vnderstanding of it came to her and then shée fled out of the Church and escaped and towne or person were amerced for this escape for there could no felon escape where no felonie was committed Neither can there be any abiuration where no felonie is committed And therefore an offendor cannot abiure for petit larcenie Br. Cor. 182 The abiured pleadeth that he is not the same person 15 He that doth abiure and is taken againe and arraigned Fi. Cor. 124 may plead that he is not the same person which did abiure and then that shal be tried by the Coroner who tooke his abiuration Or hee may plead the Kings pardon The Kings pardon granted to him of the felonie and abiuration 9. E. 4. 28. for if the pardon make no mention of the abiuration it is not good S. Pardon 7. A Recusant vsing conuenticles shall abiure the realm 16 By the statute of anÌ„ 35. El. it was ordained St. 35. El. 1 that if any person or persons aboue the age of sixtéene yeares which shall offend against the said Acte in persuading others to impugne the Quéenes Ecclesiasticall lawes shall not within thrée moneths after they shall be conuicted for their said offence conforme themselues to the obedience of the Lawes and Statutes of this Realme in comming to Church to heare diuine Seruice and in making such publike confession and submission as in the said Act is expressed béeing thereunto required by the Bishop of the Dioces or any Iustice of the Peace in the same countie where the said person shall happen to be or by the minister or Curat of the Parish In euery such case euery such offendor béeing thereunto warned or required by any such Iustice of
of the same shall for any the offences aforesaid committed within the realme of Scotland or for being accessory to the same forfeit any lands tenements or hereditaments either frée copie or customary hold neither shall the blood of such offendor be corrupted nor the wife lose her dower yet neuerthelesse the said offendors shall forf to his Ma. his heires and successors their goods chattels and credits whatsoeuer A like Act made in Scotland 11 And forasmuch as it is intended St. 4. Iac. 1. that an Act like vnto this shal be ordained in the realme of Scotland for the tryall and punishment of offendors being his Ma. natural born subiects of the same realm which shal commit any of the offences aforesaid within the realme of England or the dominions therof and shall after escape or returne backe into Scotland therefore be it enacted that vpon complaint made by any of his Ma. subiects of the realm of England to any of the Iust of Assise Commissioners of Oyer and Terminer or gaole deliuerie or Iust of the peace within the precincts of their seueral commissions respectiuely being naturall borne subiects within the realme of England concerning any such offences committed by any his subiects of the realme of Scotland within the realme of England in case where the offendor is returned into the realm of Scotland as aforesaid the said Iust or commissioner shal haue full power and authoritie Binding the complainant or witnesses to giue euidence in Scotland to bind ouer as well the said party complaining or prosecuting as any witnesses that he shall desire to produce so as their reasonable charges be first tendred vnto them by recognisance in a conuenient sum to his Maiesties vse to prosecute and giue in euidence within the realme of Scotland wherein if default shal be made and the same proued by certificat or otherwise before the Lord Treasorer Chauncellor and Barons of the Exchequer or any of them in the Exchequer chamber and a decrée there made that the same recognisance shall stand forfeited then the court of Exchequer shall thereupon procéed for the leuying of the debt of the said recognisance as if it were adiudged forfeited by the course of the common law St. 4. Iac. 1. 12 On the other part Scottish men repairing into England to giue euidence shal be frée frō arresting euery of his Maiesties subiects of the realme of Scotland either party grieued or witnesse which shall prosecute in any the cases aforesaid within the realme of England and therby shall haue occasion to make his repaire hither either voluntarie or by the like bond as is before expressed on the part of the realme of England shall haue and enioy priuiledge and immunitie from all maner of arrests concerning all offences or other causes as well capitall as others committed done or occasioned before he shall come into England as aforesaid except treason or wilfull murder so long as he or they shal be necessarily going comming or abiding within the said realme of England for the prosecution of the sayd offendors St. 4. Iac. 1. 13 Prouided neuerthelesse The offence shal be laid where it is done that euery such offence so committed as aforesaid shal be laid and alledged in the indictment or other declaration to be done and committed in the realm of Scotland according to the truth of the fact and not in the counties where the trial is limited to be had and made as aforesaid any thing in this Act formerly contained to the contrarie notwithstanding St. 4. Iac. 1. 14 Prouided He that is once tried shall not be eftsoones called into question that if any of his Maiesties subiects of the realme of Scotland shall bee proceeded with and tryed in the Realme of Scotland vpon the prosecution of any party grieued and vpon euidence in open court for any offence done or committed within the Realme of England that no such person shal be eftsoons called into questiō or procéeded with for the same fact within the realme of England but that it shal be lawfull for euery such persons to plead and alledge for himselfe vpon his arraignment that he was formerly lawfully acquited conuicted or attainted of the same offence within the realme of Scotland and that thereupon all further procéeding shal stay vntill the Court haue sufficiently informed themselues by certificat from the realme of Scotland or by any other good wayes and meanes of the truth of the said allegations which if they shall find true the said person shal be forthwith discharged of all further impeachment or procéeding St. 4. Iac. 1. 15 No naturall borne subiect of the Realme of England None shal be sent out of England to receiue his triall or the Dominions of the same shall for any High Treason Misprision or concealement of High treason Petit treason or any other whatsoeuer offence or cause committed within Scotland be sent out of England where he is apprehended to receiue his triall vntill such time as both Realmes shall be made one in lawes and gouernment St. 4. Iac. 1. 16 At all such tryals the Iurors then and there sworne The Iurors shall allow of or reiect the witnesses or the greater part of them who in respect of the great trust and charge which must now be layd vpon them are by vertue of this Act as before appeareth to be persons of better conditions and qualitie than the law required heretofore for Iurors in tryal of like offences shall haue in their power and election according to their consciences and discretion vpon their othes to receiue and admit onely such sufficient good and lawfull witnesses vpon their othes either for or against the partie arraigned as shall not appeare to them or the greater part of them to be vnfit and vnworthy to bée witnesses in that case either in regard of their hatred and malice or their fauour and affection either to the party prosecuting or to the partie arraigned or of their former euill life and conuersation Triall by Péeres 17 Prouided that if the offendor in any the cases aforesaid St. 4. Iac. 1. shall be a Péere of the Realme then his tryall therein shal be by his Péeres as is vsed in case of Felony or Treason and not otherwise 1 Triall of him which woundeth a man in one county whereof he dyeth in another S. Principall c. 16. 2 Triall of a felonie committed in one countie and accessorie thereunto in another S. Principall c. 17. 18. 3 Triall of Treason Misprision of Treason and Murders where the King will S. Indictments 10. 4 Indictments and trials of Treasons committed out of the Realme S. Indictments 11. ⧠Challenge 1 WHen the prisoner standing at the barre hath pleaded not guiltie and that the same issue is to bée tryed betwéene the King and him or the appellant and him the law doth allow him to challenge viz. calumniari to take exception vnto or to
man in his owne defence Killing a man by mischance or in his owne defence or by misaduenture by the common Law shall not haue his clergy Br. Cor. 183 Neither shall he who committeth petite Larceny Petit larcenie haue his clergy and the reason is for that in those cases he shall not haue iudgement of death 19. H. 6. 47. Fit Co. 283 St. 25. E. 3.4 7 He which had offended in high Treason Offendors in Treasons by the common law should not haue had his clergy neither he which had offended in petit Treason vntill by the stat of An̄ 25. E. 3. pro Clero it was enacted That all Clerkes as well secular as religious which shal be from henceforth conuict before the secular Iustices for any manner Treasons and Felonies touching other persons thē the King himselfe or his royall Maiesty shall fréely haue and enioy the priuiledge of holy Church and shal be without any impeachment or delay deliuered to the Ordinaries demaunding them It appeareth by the statute of Anno 4. H. 4. St. 4. H. 4. 3 That the Clergie promised to the King in Parliament that a Clerke conuict for Treason touching the King himselfe or for being a common théefe notoriously detected and deliuered to the Ordinary shall not make his purgation 8 He that had confessed a felony Confession of felony could not haue had his Clergy by the common Law vntill the stat of An̄ 9. E. 2. St. 9. E. 2. 15 viz. Articuli Cleri was made Because after his confession he could not purge him of that offence and therefore it was in vaine to haue him deliuered to the Ordinary to be tryed of that offence But the spirituall men at that time intended that the same confession of a Clerke before a Temporall Iudge was void for that he could not be Iudge of a Clerke and therefore they obtained remedie by the said articles in two speciall cases viz. Abiuration and Approuement and by the equitie of the said statute and in fauour of life it is now permitted in all other cases of attainders Clergy taken away by seueral statutes A Cutpurse 9 By the statute of An. 8. Eliz. St. 8. El. 4. it is enacted That no person or persons which shal be indicted or appelled for felonious taking of any money goods or cattels from the person of any other priuily without his knowledge in any place whatsoeuer and thereupon found guilty by verdict of xij men or shall confesse the same vpon his or their arraignment or will not answer directly to the same according to the lawes of this Realme or shall stand wilfully or of malice or obstinatly mute or challenge peremptorily aboue the number of xx or shal be vpon such indictment or appeale outlawed shall be admitted to haue the benefit of his or their clergy but be excluded therof and shall suffer death in such manner forme as they should if they were no clerks Forging of writings 10 By the stat of An. 5. El. St. 5. El. 14. it is established That if any person or persons being conuicted or condemned of any of the offences specified in that Statute prouided against the forging of euidences writings by any of the waies or meanes in the same statute limitted shall after any such his or their conuiction or condemnation eftsoones commit or perpetrate any of the said offences in the forme therin mentioned that then euery such second offence or offences shal be adiudged felony the parties thereof conuicted or attainted shall suffer death losse forfeiture of their goods cattels lands tenemēts as in cases of felony without hauing any aduantage or benefit of Clergy or Sanctuary S. Forging c. 8. and Felonies by Statute 27. 11 By the statutes of An̄ 25. H. 8. An̄ 5. El. St. 25. H. 8. 6 St. 5. El. 17. it is enacted That if any do commit Buggery Buggery with mankind or beast the same offence shal be adiudged felony and that no person offending in the same shal be admitted to his clergy S. Felonies by Stat. 11. 12 By the statute of An̄ 5. El. St. 5. El. 20 it is enacted That euery person and persons of the age of xiiij yeares or aboue calling himselfe an Egyptian Egyptians or béeing in company with them or counterfeiting or disguising himselfe by his apparell spéech or other behauior like vnto the vagabonds calling themselues Egyptians and so doth continue at one or seuerall times by the space of a moneth shal be adiudged a felon and shall loose the priuiledge and benefit of Sanctuary and Clergy S. Felonies by Stat. 15. Relieuing of a Iesuit or Priest 14 By the stat of Ann̄ 27. El. St. 27. Eli. 2. it is enacted That euery person which shall wittingly willingly receiue relieue comfort aid or maintaine any Iesuit seminary priest or other priest deacō or religious or ecclesiastical persō whatsoeuer being borne within this realme or any the dominions thereof heretofore sithence the feast of S. Iohn the Baptist an̄ 1. Reg. El. ordained made or professed or hereafter to be made ordained or professed by any authoritie or iurisdiction deriued from the Sea of Rome being at liberty or out of hold knowing him to be a Iesuite Seminarie Priest or such other Priest Deacon or religious or ecclesiasticall person as is aforesaid shal for such offence be adiudged a felon without benefit of Clergy and shal suffer death loose and forfeit as in case of one attainted of felony S. Felonies by Stat. 22. 15 By the Statute of Anno 18. Eliz. St. 18. El. 6. it is ordained That if any person or persons shall fortune to commit or doe any manner of felonious Rape Rape Rauishment or Burglary Burglary or shall vnlawfully and carnally know and abuse any woman child vnder the age of tenne yeares and shal be therof found guilty by verdict be outlawed or confesse the same vpon his arraignment he shall suffer paines of death and forfeit as in cases of felony without any allowance or priuiledge of Clergy 16 By the statute of An̄ 3. H. 7. St. 3. H. 7. 2 it is enacted Taking a woman against her will That if any person or persons shall take any maid widow or wife which hath any lands or goods or is heire apparant to her auncestor against her wil vnlawfully such taking procuring and abotting to the same and also receiuing wittingly the same woman so taken against her will knowing the same shal be felony and such misdoers takers and procurators to the same shal be reputed taken as principall Felons But this act doth not extend to any person taking a woman onely clayming her as his ward or bondwoman Ward Bondwoman And by the stat of 39. El. St. 39. El. 9. it is ordained That euery such person persons as shal be conuicted or attainted of or for any
the sayd auntient law for they would not deliuer the prisoner vnto the Ordinarie vntill hée was indicted and also arraigned and that it was enquired by an Enquest of Office whether hée were guiltie or not In which case if he were found not guiltie they would discharge him and if he were found guiltie his goods should bée forfeited his lands taken into the Kings hands and his bodie deliuered to the Ordinarie And the cause of chaunging this law was that the Ordinarie might take greater charge of the prisoner being now indicted than before and to benefit the King by the forfeiture of the prisoners goods and to bréed a greater feare in Clerkes after that they should not offend Which alteration was obserued for law vntill the raigne of King Henry the sixt at which time the Iudges would not admit a prisoner to demaund his Clergie vpon his arraignment but put himselfe first to answer to the Felonie and if hée were found guiltie of the Felonie at his owne suit then to heare him demaund his Clergie and not before 3. H. 7. 1. 12. which is a more reasonable law than the former for before hee should haue forfeited his goods vpon an Enquest of Office whereunto hée could haue no challenge and now he shal be tryed at his owne suit and shall haue his challenge to the Enquest and then if he be found guiltie hée shall forfeit his goods and for the sauing of his life and his lands hée is to pray his Clergie Which hath bin vsed euer sithence and is obserued for law at this time vnlesse the prisoner himselfe will refuse the benefit thereof and pray to haue his booke without hearing the verdict As if a prisoner after an Enquest is charged vpon him Clergy demanded before verdict and before their returne againe will say that he is a Clerke and desire his booke at his perill in this case the Court hath allowed him his Clergie and yet after hath receiued a verdict as well in fauour of life as in fauour of the King for if he be found not guiltie the prisoner shall be discharged and if he bée found guiltie the King shall haue his goods as forfeit And the request of his booke in that case is more for the prisoners disaduantage than the Kings for it may bée a meane that the Iurie vnderstanding thereof will the rather find him guiltie of the felonie than otherwise they would haue done 26. Ass p. 19 33 If a prisoner doe say that hée is no Clerke Denying to be a Clerke and yet is yet after if before iudgement hée doe pray his Clergie where Clergie is allowable by the law and then doth read as a Clerke hée shall haue his Clergie notwithstanding his former words But it hath béene a question Whether clergie is allowable without request whether the Iudges ought to allow any man his Clergie without praying of it though the offendor be indicted by the name of Priest Fi. Cor. 254 Clerke c. or that by some other meanes the Iudges themselues doe know that hée is a Clerke or that without praying of his Clergie they shall giue iudgement of death against him And in this case some doe affirme that if the prisoner doth not pray his Clergie hée shall not haue it though the Iudge doth vpon his owne priuat knowledge vnderstand that hée is a Clerke for the Iudge must in those cases procéed according to his iudiciall knowledge and as by record things bée found proued and tryed before him and not according to his owne naturall knowledge And they bée the rather so induced to thinke by the words of the aforesayd statute of 1. Edw. 6. St. 1. E. 6. 12 which ordayned That a Péere of the Realme shall vpon request haue the benefit of his Clergie and so inferre that without request he shall not haue it nor any other without request which is to haue it vpon request 34 The temporall Court shall be Iudge to allow or disallow of Clergy Who shall allow of clergy and not the Ordinary 15. H. 7. 9. for it was entred into the roll of the court legit vt Clericus ideo tradatur Ordinario by which words it doth appear that the court doth giue allowance therof for the felony being the act which is cōmitted is temporal and the Iudge which did commit him to the Ordinary is temporal so is the authority wherby he did commit him And the Ordinary should haue bin punished if before the stat of 18. Eli. St. 18. El. 6. he had letten to baile or at liberty any prisoner cōmitted to him or if he had imprisoned him too straitly or too easily or would not haue suffered him to haue made his purgation and in that case the king might haue sent his Writ vnto the Ordinarie commaunding him to suffer his prisoner to make his purgation or might haue pardoned him or set him at liberty Fitz. Cor. 44. 17 without making his purgation and if one read as a Clerke and yet the Ordinarie will refuse him notwithstanding hee shall haue the benefite of his Clergie and on the other side if the Ordinarie will say that hee doth read as a Clerke whereas in truth hee doth not read as a Clerke the Court must giue iudgement that hée shall bee hanged and cause execution to bee done of him And further to prooue that the Temporall Court is Iudge of the reading the Court doth appoint the verse or place to the prisoner to read and not the Ordinarie And also doth set a fine vpon the Ordinary 34. H. 6. 49. 21. Ed. 4. 21. 9. E. 4. 28. for saying that the prisoner doth read as a Clerk where he doth not which the court could not do if the reading were referred to the Ordinarie A felon doth read vnder the gallowes 35 If a felon doth not read as a Clerke before the Iudge at the time of his arraignment whereupon he is adiudged to be hanged yet in fauor of life 34. H. 6. 49. if hée arraignment whereupon he is adiudged to be hanged yet in fauor of life if hée do demand it at another time vnder the gallows if any of the Iudges do passe that way and doth read as a Clerke he shall haue the benefit of his Clergie although there be no Ordinary there to demaund him But this is in case where the felon is arraigned and iudged before the Iust of the K. Bench 3. 4. El. Dy. fo 205. or else in case where he is arraigned and iudged before the Iust of gaole deliucrie and it is entred by the Court non legit vt Clericus and then for some cause he is repried vntill the next Session and then againe he is demanded if he can read and then he can and doth read in this case he shall haue his Clergy in fauor of life And though he was taught to read in the gaole this shall saue his life but the
against the possessor of them to bring them into the same Court. And so the King shall haue the benefite of an action of trespasse Forfeiture of a trespasse which the partie attainted might haue had against the other for those goodes wrongfully taken or holden away But if he that was attainted were beaten or mayhemed by another the King shall not haue an action of trespasse of battery 29. As p. 63 30. Ed. 3. 4 appeale of mayheme or other remedy against that partie which did the foresaid iniurie to the person attainted for that the money to be recouered by the action of trespasse is reduced to no certaintie And if money be owing to a man by obligation or simple contract Forfeiture of a debt and after he to whome the money is payable is attainted of treason or felonie Fi. Cor. 343. that obligation and duetie shall be forfeited to the King And if one man or more be bound by obligation to two men or more for the paiment of a summe of money or any other dutie Ioynt debt forfeited and one of the Obligées is outlawed or attainted of treason or felonie the King shall haue the whole Obligation and the money or dutie arising or payable thereby 19. H. 6. 47. 28. H. 8. Dy. 30. and the King or he to whom the King will giue the same debt shall haue an action in his owne name to recouer it which action shall bée maintainable though there be variance betweene the action and the specialtie 50. As p. 5 28. Ed. 3. 92 And in like sort if a man be Receiuer to another of his money An account forfeited and hee to whom he is receiuer be attainted of Treason or Felonie after office found thereof the King may haue a Scire facias against the Receiuer to receiue this money and by that meanes the King shall haue the benefit of the action of account which the partie attainted might haue had Forfeitiâ—g of an interest And in some cases an offendor in treason or felonie shall forfeit an interest in lands whereof he himselfe neuer had or could haue possession but an authoritie to dispose As if hée that hath the reuersion of lands in fée simple whereof another hath the possession for the terme of yeares 14. El. Dy. 309 doth graunt and assure this land to others to the vse of himselfe for terme of his life and after his decease to the vse of the Executors and Assignes of the grauntor for the terme of twentie yeares next after the death of the grauntor the remainder ouer in taile and after the grantor is attainted of treason by Act of Parliament and all his lands tenements goods and cattels which he had to his owne proper vse were forfeited to the King and vested in his actuall possession without office and the grauntor died intestate without assignement of this lease In this case the King shall haue this terme of twentie yeares as forfeit to him for it was an interest in the grauntor and did and might well remaine in him in expectancie notwithstanding his estate for the terme of his life and if the grauntors executors should haue had this lease they must not haue enioyed it to their owne vse but as assets in their hands And though the King shall haue such goods The King shall not pay the attainted persons debts debts money due vpon accounts and interest in lands as were due to the partie attainted of treason Fi. Cor. 317 334. or felonie yet he shall not pay such debts as the said person attainted did owe. 11 As in the cases aforesaid and some others a person attainted may forfeit goods debts and rights whereof he hath no possession but onely an action or title so in some other cases hee may forfeit goods whereof he hath no propertie but onely a possession As if a man deliuer money out of a bagge Forfeiting of goods wherein the offendor hath no propertie or corne out of a sacke to another to kéepe and to restore againe when the owner will require it if the partie to whom the money or corne was deliuered be attainted of Treason or felonie the money or corne shal be forfeited to the King and the partie who deliuered the same hath no remedie to recouer it for the first owner who deliuered it cannot prooue that it was his money when it was out of a bagge or that it was his corne when it was out of a sacke for that one sort of money cannot be knowne from another nor one sort of corne from another Fi. Cor. 317 3â—3 But if the money were deliuered in a bagge or the corne in a sacke then the owner that deliuered it may come vnto the Iustices before whom the offendor is attainted and shewe the deliuerie of it and signifie that it was to be restored vpon his request whereof the Iustices shal enquire by an Enquest of office and if his suggestion be found to bée true hee shall haue his money or corne againe But if the money or other thing deliuered by the owner be conuerted to another commoditie then the law is otherwise as if a man deliuer money to another to buy wooll or some such other commoditie and to worke it lay it vp or to kéepe it in his house Fitz. Cor. 334. and the partie to whom the money is deliuered doth buy wooll or c. and bringeth it to his owne house and then is attainted of Treason or Felonie the King shall haue the wooll or c. as forfeit and the partie who deliuered the mony is without remedie to recouer his money or the wooll or c. for though hée might haue had an action of Account against the partie to whom hee deliuered his money if he had liued and remained vnattainted yet hée shall haue no action or remedie against the King Forf for default of pursuit 12 If a man doe steale goods at diuers times from seuerall men and he is attainted at the suit of one of them for the goods stolne from him 44. E. 3. 44. but is not attainted at the suit of the others by this attainder the felon shall forfeit to the King not onely his owne goods but also the goods stolne from those other at whose suit hée was not attainted though hee had no propertie but only a possession in those goods for a felon hath no propertie in goods stolne A felon hath no property in goods stolne but it doth alwayes remaine in the right owner which propertie in this case for default of pursuing the felon is forfeited to the King Forf of other mens goods his owne 13 In like sort if a man doe steale goods from another Fi. Cor. 318 and before his attainder hée doth kill himselfe hée shall forfeit to the King not onely his owne goods but also the goods which hée did steale from that other though hée had no propertie but
be supported and maintained with land to vphold the countenāce charge of the owner thereof And therfore this Earldome being by the K. giuen to the Earle the heires males of his body begotten is an inheritance which may discend from one heire male to an other and then by the speciall words of the before rehearsed Statute of 26. H. 8. and 5. Ed. 6. it shall be forfeited to the King by the said heires attainder of high treason for it was in the same heire an hereditament and whereof he had an estate of inheritance And moreouer when the King at the first did giue to this Earle and the heires males of his body begotten the foresaide great title of honour though there was no condition expressed in the same grant yet there was a secret condition implied therein viz. that the said grauntée and the heires males of his body should be assistant and seruiceable to the King his heires and successors by his Councell in the time of peace and by his force and prowesse in the time of warre Therefore when the heire male of this Earle the first grauntée did take Councell to breake the peace of the King and leuied warres and imployed his force and power against him he first brake the same secret condition which was annexed to his ancestors graunt of the Earledome And so there is reason and cause whie his said title of honour depending vpon the same condition should therewith cease and determine and that the same should returne againe to the Crowne from whence it was deriued The forfeture of lands in fée simple 27 Besides the forfeitures aforesaide 30. H. 6. 5. euery person that is attainted of high treason petit treason or felonie shall also forfeit his lands in fée simple which he hath in his owne right in vse or possession sauing that the attainder of treason by force of the Statute of Anno 5. El. 1. St. 5. El. 1. ordained against the maintaining of the authoritie of the Bishops and Sea of Rome shall not extend to make any corruption of bloud the disheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other than the offendor or offendors during his or their naturall liues onely And sauing that the attainder of treason by force of the Statute of Anno 5. Eliz. 11. St. 5. El. 11 prouided against the clipping washing filing or rounding of money maketh no corruption of bloud in the heire or forfeiture of dower in the wife And sauing that the attainder of treason by force of the Statute established Anno 18. El. 1. against impairing diminishing falsifying skaling St. 18. El. 1 or lightning of money maketh no corruption of bloud nor the wife to loose her dower for he that is attainted of that treason shall suffer death and forfeit all his goods and chattels to the King and all his lands during his life onely And likewise sauing that the attainder of felonie by force of the Statute made Anno 1. Iac. 12. against coniuration witchcraft enchantment St. 1. Iac. 12 charme and sorcerie maketh no corruption of bloud nor the forfeiture of the heires or successors inheritance of any land nor of the wiues title of dower And further sauing that the attainder of felonie by force of the Statute prouided Anno 1. M. 12. against vnlawfull assemblies St. 1. M. 12 maketh no corruption of bloud And moreouer sauing that the attainder of felonie by force of the Statute ordained Anno 5. El. 14. against the forging of Euidences St. 5. El. 14. and writings maketh no corruption of bloud nor forfeiture of land or dower And furthermore sauing that the attainder of felonie by force of the Statute of Anno 31. Eliz. 4. St. 31. El. 4 prouided against the imbeseling of the Quéenes ordnance armour or artillery maketh the offendor to forfeit no lands tenements or hereditaments any longer than during his life St. 4. Iac. 1. S. Triall by the country 10. Co. li. 7. 34 S. Br. 56. no corruption of bloud nor the wife to forfeit her dower And the same lawe is if an Englishman doe commit any felonie in Scotland And if a man haue an annuitie to him and his heires The forfeture of an annuity and he doe commit high treason and is attainted thereof he shall forfeit to the King the same annuitie by force of the before recited Statute of Anno 26. H. 8. 13. for that the same annuitie is an inheritance 28 He that is attainted of high treason petit treason or felonie Forfeiting of a title to land shall also forfeit such lands whereof he hath neither possession reuersion or remainder but onely a title or right or cause of action As if a man be disseised of lands and then the disseisée committeth high treason Co. l. 3. 10 after an office found thereof the king may seise those lands as forfeited and escheated vnto him in respect of the same persons attainder of treason And if the disseisée be attainted of petit treason or felonie the Lord of the Fée of whom the same lands be holden may enter into the same lands as escheated vnto him in respect o◠the attainder of his lawfull tenant But the Lord cannot haue a writ or escheat or other action to recouer the same land because his tenant died not or was not seized thereof but his onely remedie is to enter 6. H. 7. 9 And if a man make a lease for the terme of life of his land and after committeth felony and then the tenant for the terme of life dieth the Lord may enter but cannot haue a writ of escheat 29 As he that is attainted of treason or felony shal forfeit his lands Forfeiting of euidence so shal the Lord to whom those lands be forfeited 49. H. 6. 14 haue the euidēce of the same lands as escheated or forfeited vnto him to maintaine his title in the same lands escheated and to prooue how his late tenant came by and held the same lands St. 9. H. 3. 29 30 Though it is ordained by the statute of Magna Charta That iustice shall not be sold deferred or denied to no man neither shall any man be condemned but by lawfull triall and that it be further established by the statute of Anno 5. Edw. 3. St. 5. E. 3. 9 That no man shal be attached nor foreiudged of life lands or goods against the forme of the great Charter and the Law of the Realme So that the Law of the Realme doth allow to euery man that is an offendor his answere and lawfull triall be his crime supposed to be neuer so great and the proofe thereof neuer so manifest But if a man that is arrested of Treason or Felony or being vehemently suspected to haue committed Treason or Felony is attempted to be arrested be so wilfull stubborne or rebellious Forfeiture without at-attainder that he will
not yéeld to be iustified and tried by the Law but will either kill himselfe or giue cause to other men to slay him Fi. Cor. 289 290 312. S. Br. 5. for resisting and not submitting his obedience to the Law then he shal forfeit his goods so that this offence be found and presented by twelue men before the Coroner or some Iustices after his death for in this case the default is in the offendor and not in the Law that he came not to lawfull triall of his offence for the law requireth no more but that the supposed offendor shal be safely kept sub custodia legis by imprisonment or maineprise vntill it be tried whether he be an offendor or not But though the person thus slaine shall for his disobedience forfeit his goods béeing not attainted either of treason or felonie yet in the like case he shall not forfeit his lands if hee bee slaine in arresting or after arrest or otherwise die before he be attainted St. 34. E. 3. 12. as it appeareth by the Stat. of an̄ 34. Ed. 3. 12. which hath established That for forfeitures of dead persons not attainted nor adiudged in their liues their heires or land-land-tenants shall not be impeached or challenged nor of any other forfeiture except the forfeitures in old time adiudged after the death of the persons by presentment in Eyre or in the Kings bench or of felons of themselues or others And yet some doe affirme if a man doe leuie warre or open rebellion against the King or is assistant to his enemies in the field and then is slaine in battell he shall forfeit his lands goods And others doe adde thereunto that the same his Treason and manner of death must also after his death be found by a Iurie super visum corporis Co. li. 4. 57 Pl. Com. 262. 263. before the chiefe Iustice of England being the soueraigne Coroner of the realm and he must returne it into the Kings Bench and make a Record therof and then that person shall forfeit his lands and goods And vpon those words of the sayd Statute of 34. Ed. 3. viz. Except the forfeitures in old time adiudged after the death of the persons by presentment in Eire or in the Kings Bench or c. some doe inferre that if a presentment in Eire or in the Kings Bench be made of such an open rebellion and battell thereupon foughten and of those that manifestly shewing themselues to bée open enemies or rebels to the King were slaine therein that by the words of the same Statute they shall forfeit their lands But if a man bée arrested for counterfeiting the K. great or priuie Seale for forging of his money or for a priuy conspiracie of the death of the King or c. and is slaine in resisting the said arrest or for a rescous attempted before or after the sayd arrest hee shall forfeit his goods but not his lands And if he bée arrested for any of the sayd offences and committed to prison for the same and after doth dye in prison before he bee attainted of any of the sayd offences he shall neither forfeit lands nor goods though he be taken with the manoure viz. found hand hauing and backe bearing for though it is a mischiefe that a man committing high Treason shall forfeit neither life lands or goods yet the law doth rather beare with that mischiefe than to suffer such an inconuenience that a man onely accused or but only a supposed offendor should bée attainted and forfeit his lands and goods where being preuented by death viz. by the hand of God hee cannot come to answer and defend himselfe and by that meanes cannot bée condemned by such lawfull tryall which is meant and specified in the before rehearsed Statute of Magna charta But for the auoiding of questiō and doubt in the case aforesaid they which haue béene knowne parties to such open and manifest rebellions St. 29. H. 6. 1 St. 12. El. 16 St. 29. El. 1 St. 35. El. 5. St. 3. Iac. 2. haue béen of late yeares attainted by Act of Parliament and their lands and goods giuen as forfeit to the King As it appeareth by the stat of Anno 29. H. 6. 13. El. 29. El. 35. El. 3. Iac. The forf of the yeare day and wast 31 There is another forfeiture besides the losse of life lands annuities Fi. Cor. 310 290. 327. and goods wherewith the law hath deuised to punish those that doe commit petit Treason or Felonie and be attainted thereof which is called in Latine the forfeiture of Diem annum vastum the forfeiture of the yeare day and wast which is executed vpon the houses and lands of the offendor that be holden of any other sauing of the king That is the felons houses and lands shall bée seised into the Kings hands where they shall remaine by the space of a yeare and day and then the houses shall be throwne downe to the ground the trées shall be pulled vp by the roots the medowes shal be ploughed vp and all things which the felon did build or plant shal be cast downe digged vp Fitz. Cor. 358. and supplanted Which punishment was ordained in despight of offendors and to shew to others how much the law doth detest murderers committers of burglarie robberie and other felonies and as much as may be to terrifie and discourage others to attempt or practise the like 32 It appeareth by Bracton that by the common law the King should haue had but onely the wast of a Felons lands viz. the benefit to pull downe his houses root vp his trées plough vp his medowes and such other commodities as he could haue raised by spoyling and wasting of the felons houses trées and lands and that then the land so wasted should haue béene presently deliuered to the Lord of the fée of whom the same lands were holden which wast and spoyle was then made without redemption And after by a composition made betwéene the King and the Lords it was agréed By what means the K. came by the yere day and wast That the King should haue the benefit of the felons lands a yeare and a day to redeeme the spoyle and wast which hée might make of the sayd felons lands And the K. graunt by the great Charter made Anno 9. H. 3. St. 9. H. 4. 3 22. tendeth to the same effect viz. Wee will not hold the lands of those that bée conuict of felonie but a yere and a day and then they shall bée deliuered to the Lords of the fées And so it séemeth that King Henrie the third and King Edward the first did hold themselues satisfied with the yeare and day of the felons lands without taking the wast thereof St. 17. E. 2. 16 But after Anno 17. Ed. 2. the Kings Prerogatiues royall béeing expressed or enacted by Parliament amongst others it is ordayned That the King shall haue all the goods of felons which be
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
vpon the one shal be also an acquitall vpon the other By the letter of the said statute of Westm 2. this word Malice doth only referre it selfe to Abettors and Procurors but yet it is commonly taken to extend as well to the appellant as to them The Statute extendeth to all felonies 3 The said stat of West 2. saith when any is appealed of felony St. 13. E. 1. 12 this word felony is not only intended of such offences which were felonies at the time of making the said statute but also of all other offences which haue béen made felony by stat sithence the said statute And therfore in an appeale of rape which was made felony by the same stat of West 2. the plaintife was nonsute when the Enquest was to be taken and the def was arraigned at the kings suit Fi. Cor. 275 381. and found not guilty and the Iury was charged to inquire of the abettors The defendant acquited by battell 4 The words of the said statute of West 2. be When any doth acquit himselfe in due manner which may be intended as wel that the defendant shal recouer dammages where he doth acquite himselfe by battell St. 13. E. 1. 12 as where he doth acquite himselfe by the country But that acquital by battell is to be construed in this manner where the appellant when he is in the field will acknowledge his appeale to be false for that is a kind of vanquishment Fit Cor. 98. for it must not bée intended where the appellant is slain in the field séeing when the person of the appellant is dead the dammages be also gone for euer without any recouery to be had of them 5 It is to be noted that there is an acquitall in law as well 〈◊〉 an acquitall in déed for if two be appealed one as principall and the other as accessory and the principall is acquite by this acquitall the accessory shall recouer his damages against the appellant if the Enquest which tried the principall Where the accessory in appeale shall recouer damages were also charged vpon the accessory 2. 3. P. M. Dy. 120. 35. H. 6. 2. though they gaue no verdict of the accessory for in this case the accessory shall haue a writ of Conspiracy by the common Law because by a meane he put his life in ieopardy But it is otherwise if the principall be acquit and the accessory did not appeare but depended in proces for in that case he ought expressely to be acquit by verdict 41. As p. 24 or otherwise he shal not recouer dammages by force of this statute neither shal he haue a writ of Conspiracy by the common law St. 13. E. 1. 12 6 These words of the foresaid stat of West 2. be of great moment viz. whē any which is appealed of Felony doth acquite himselfe in due maner for if the def doth barre the plaintife of his appeale Where the def is said to acquite himselfe in due maner and where not he cannot recouer damages thereby against the plaintife except the barre be such as doth acquite the def of the Felony And therefore if the def doth plead that the appellant is a bastard or hath an elder brother or was neuer accoupled in lawfull mariage or such like pleas in barre and by these pleas doth barre the plaintife yet he shall not recouer damages against him for the def may be indicted againe of the same Felony and attainted 27. Ass p. 25 Fi. Cor. 77. notwithstanding by either of these pleas he is discharged of the appeale as well against the king as against the appellant for those pleas which do not trythe def innocency in the Felony do neuer giue him dammages any more then if he had pleaded in abatement of the writ of Appeale such a plea as had abated it For notwithstanding such a plea doth discharge him of the appeale as well against the K. as against the party yet it doth not discharge him of the felony Fit Cor. 12. And the like law is if in an appeale the def do barre the appellant by a demurrer in law yet he shal not recouer damages against him for the def innocency in the felony doth not by that meanes come to triall And so it is if in an appeale of the death of a man the def do plead to issue is foūd by verdict to kill the man in his owne defence 22. As p. 77. or by misaduenture in these cases he shall recouer no dammages against the appellant for this is no acquitall of the Felony because the def is inforced to purchase his pardon to purge him of the Felony and besides it doth appeare that this appeale was not commenced vpon malice Fi. Cor. 386. In like sort if the def in an appeale vpon his arraignmēt will demand his Clergy the Court wil take an Enquest of office to inquire whether he be guilty or not and the enquest doth find him not guilty yet by this acquitall he shall not recouer damages for in that he demaunded his clergy before triall he did rather in a sort confesse the Felony by implication then otherwise But if he had refused his clergy and put himselfe vpon the enquest who had acquited him then he had bin acquite in due manner according to the foresaid statute should haue recouered his damages And so it is if the def in an appeal hath the release of the appellant or the K. pardon will waiue them plead not guilty put himselfe vpon the countrey and is acquit he shall recouer damages yet he hath done a thing of record viz. by purchasing the K. pardon wherin by implication he doth confesse the Felony But if it were a pardon by act of Parliament 11. H. 4. 40 he could not weiue it If the def be acquit erroniously without due proces he shal not recouer his damages against the plaintife for that the words of the foresaid statute of West 2. be Se acquietauerit in curia Regis modo debito As 9. H. 52 where the def doth appeare by the Exigent vpon whom the Shirife hath returned Cepi corpus defendentis where he should haue returned Exegi feci and the defendant doth appeare vpon the Euidence and without taking aduantage thereof pleadeth not guilty to the appeale and it is so found for him yet some do affirme that he shall not recouer his dammages because he is acquit erroniously without due proces But others vpon greater reason do hold that the Error in the proces is not materiall Fi. Cor. 444. so long as there is no Error in the writ of appeale declaration or pleading for the def is arraigned vpon the originall Writ and not vpon the meane proces Acquite at the K. suit is only vpō an appeal 7 The foresaid statute of West 2. hath ordained St. 13. E. 1. 12 That when any which is appealed of felony
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
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