contempt of the King c. and upon this being arraigned and found guilty because the Indictment was not that he did it in presence of the Justices nor in the presence of the King all the Judges agreed that the Judgment of cutting off his hand should not be given and so seriatim they delivered their opinions But because this offence was in the Palace neer the Hall door whereby tumults might have been made and because it was found sitting all the Courts and in disturbance of Justice and Law and in contempt of the King the Court awarded that he should be imprisoned for the said offence during the Kings pleasure and should pay 1000 pounds fine Thus much where the King is present by Representation If any strikes in the Kings Palace where the Kings Royal Person resideth he shall not lose his right hand unless he draw blood but if he draw blood then his right hand shall be strucken off he perpetually imprisoned and fined and ransomed By what hath been said a Man may perceive a great difference between a blow or stroke in or before the said Courts of Justice where the King is representatively present and the Kings Courts where his Royal Person resideth for in the Kings House blood must be drawn which needeth not in or before the Courts of Justice when the Judges are doing of that which to Justice appertaineth and the reason is Quia Justitia firmatur Solium 7. Routs A Rout is when People do assemble themselves together and after do proceed or rid or go forth or do move by the iustigation of one or more who is their Leader This is called a Rout because they do move and proceed in Routs and members Also where many assemble themselves together upon their own common Quarrel and brawles as if the Inhabitants of a Town will gather themselves together to break hedges pales or such like to have Common there or to beat another that hath done to them a common displeasure or such like that is a Rout and against the Law although they have not done or put in execution their mischievous intent if so be they do go ride or move forward after their first meeting Note that there is diversity between committing of a great Rout or the like and Levying of War for example as if three or four or more do rise to burn or put down an Inclosure in Dale which the Lord of the Mannour of Dale hath made there in that particular place this or the like is a Rout a Riot or an unlawfull Assembly and no Treason But if they have risen of purpose to alter Religion established within the Realm or Laws or to go from Town to Town generally and to cast down Enclosures this is a Levying of War though there be no great number of Conspiratours within the perview of the Statute of 25. E. 3. c. 2. because the Pretence is publique and general and not private in particular As it was resolved Pasch 39. Eliz. by all the Judges of England in the case of Richard Bradshaw Miller Robert Burton Mason and others of Oxfordshire 8. Riot Riot in Latine Riotum cometh of the French word Kioter id est Rixari and in the Common Law signifieth when three or more do an unlawful Act as to beat any Man or to hunt in his Park chase or warren or to enter or to take possession of another Mans Land or to cut or destroy his corn grasse or other profit c. By the Statute of 17. R. 2. and 13. H. 4. the Justices of Peace and Sheriff are to arrest those that commit Riot and to record that which they find done in their presence against the Law Each Man that is able ought to help to repress Riots upon pain of Imprisonment and to make fine to the King Evans and Cottington and 7. others were indicted for a Grand Riot that they with others there named to the number of 1000. persons made a Rescous and assault upon Henry Smith a Baylif who by virtue of a Warrant upon a Bill of Middlesex against William Cleer had arrested him and was carrying him to Prison and they procured him to escape The Arrest was at Charing Crost in the Parish of St. Martins and after the Arrest they assaulted the Bayliffes and beat them and the Bayliffes putting the Prisoner into an house for safe keeping against the tumult they assaulted the house and notwithstanding a Justice of Peace assisted with three Constables made proclamation for keeping the Peace and for their departure yet they continued their assault breaking open the house and with ladders taken from the Kings House of White-Hall where the King with His Court was resident upon the 24. of March 13 Car. in the afternoon of the said day made this Riot and Rescous and carryed the Prisoner away through the Kings House and caused him to escape Upon this Indictment 9. of them being arrested pleaded Not-guilty and 4. of them viz. Evans Cottington Groom and Heatly being arraigned were found guilty and 5. of them were found Not-guilty but against three of them was probable evidence that they were aiding to this Riot and Rescous but the Jury acquitted them wherefore because it was so great a Riot and offence being committed so neer the Court it was adjudged that the said four persons which were so convicted should be committed to Prison and every one of them should pay 500. pounds fine to the King And that every of them should stand on the Pillory at Westminster and Charing Cross where the Riot was done and that Thomas Groom who was a Cobler and entered into the house with a drawn sword and a kettle upon his head as an helmet to defend himself should stand on the Pillory with a sword in his hand and a kettle upon his head and should be bound with good secuties for their good behaviour before they should be delivered And the three which were acquitted against whom there was such probable evidence were bound to find securities for their good behaviour Note An unlawful Assembly is when three or more assemble themselves together to commit a Riot or Rout and do it not One or more sayes the Lord Coke may commit a force three or more may commit an unlawful Assembly a Riot or a Rout A multitude as Some have said must be ten or more Multitudinem decem faciunt And so said they it is said de grege bominum But Coke tells us that he could never read it restrained by the Common Law to any certain number but left to the discretion of the Judges In the Civil Law thus Decem homines populum tres Collegium duo Congregationem quindecim turbam constituunt in Jure Civili sed Jure in Communi Angliae tres turbam faciunt 9. Affraies Single Combats and Challenges c. Single Combats or Duels between any of the Kings Subjects of their own heads and for private malice
or displeasure is prohibited by the Laws of this Realm for in setled State governed by Law no Man for any injury whatsoever ought to use private revenge because it belongeth to the King who is the Supream Magistrate and Gods Lieutenant on Earth And the Law herein is grounded upon the Law of God Deut. 32. 35. Rom. 12. 19. It is also against the Law of nature and Nations for a Man to be Judge in his own proper Cause especially in Duels where fury wrath malice and revenge are the rules of the Judgment Hinc est sayes one quod Legum reperta est sacra reverentia ut nihil manu nibil proprio ageretur impulsu Quid enim a bellica confusione pax tranquilla distat si per vim litigia terminantur But it may be objected that it is lawful vim vi repellere therefore private revenge is lawful The reason of the consequence is because by revenge force by force is repelled It is answered That the antecedent is not simply and universally true Vim vi repellere licet cum moderamine inculpatae tutelae in casu ultimae indeclinabilis necessitatis non semper quocumque modo Note that Duels are lawful if they are warranted by publick Authority such as heretofore our Tryals by batail ad probandam veritatem litis and such was the Duell betwixt David Goliah which was strucken by publick warrant and authority Vid. more of this in Grotius lib. 2. c. 1. nu 15. cap. 23. nu 10. Note further that albeit upon the Single Combat that proceeds not from publick authority no death ensue nor blood drawn yet the very Combat for revenge is an Affray and a great breach of the Kings Peace an Affright and terrour to the Kings Subjects and is to be punished by fine aud Imprisonment and to find sureties for their behaviour When any Affray is made by Single Combat any stander by that is no Officer may endeavour to part them and prevent further danger and the Law doth encourage them thereunto for if they receive any harme by the Affrayours they shall have their remedy by Law against them and if the Affrayours receive any hurt by the endeavouring only to part them the standers by may justify the same and the Affrayours have no remedy by Law But if either of the Parties be slain or wounded or so striken as he falls down for dead in that case the standers by ought to apprehend the Party so slaving c. or to endeavour the same by the Hue and Cry or else for his escape they shall be fined and Imprisoned But if the Sheriff Justice of Peace Constable or other Conservatour of the Peace do not part the Affrayours for the preservation of the Kings Peace and apprehend them being within his view or do not his uttermost to part and apprehend them they may be imprisoned for their neglect thereof for they may command others to assist them and therefore the rule holdeth in them qui non prohibet cum probibere passit in culpa est And if any be commanded to assist them therein and refuse or neglect the same it is a contempt in them to be punished by fine and Imprisonment The words Affray and Assault be indifferently used of most Men and that also in some of our Book Cases but yet according to Lambards opinion there wanteth not a just difference between them For Affray is derived of the French Cffraper which signifieth to terrify or bring fear which the Law understandeth to be a common wrong and therefore is it enquirable in the Turn of the Sheriff or in a Leete 4. H. 6. 10 and 8. E. 4. 5. otherwise it is of an Assault as it seemeth by those very Books yet may an Affray be without word or blow given as if a Man shall shew himself furnished with armes or weapon which is not usually worn and born it will strike a fear into others that be not armed as he is But an Assault as it is fetched from another fountain namely from the Latine Assultus which denoteth a leaping or flying upon a Man so can it not be performed without the offer of some hurtful blow or at the least of some fearful speech And therefore to strike at a Man although he were neither hurt or hit with the blow was adjudged an Assault 22. Ass Pl. 60. For this Assault doth always necessarily imply a hitting and therefore in Trespass of Assault and Battery a Man may be found guilty of the Assault and yet be excused of the Battery 40. E. 3. 40 45. E. 3. 24. 3. Challenges If any Subject by word Message or Writing challenge another to fight with him this is an offence before any combat be performed and punishable by Law and it is contra Pacem Coronam Dignitatem Regis For prohibetur cum aliquid prohibentur etiam media ad illud tendentia The means of such evills as well as the end are to be prevented 10. Libells A Libel signifieth a criminous report of any Man cast abroad be he Magistrate or a private Person or otherwise unlawfully published in writing and therefore for distinction sake it is called an Infamous Libel or Pasquil It matters not whether the Libel be true or false or whether the Party be of good fame or ill fame for it inciteth all the same Family Kindred or Society to revenge and so tendeth by consequence to the effusion of blood and to the breach of the publick Peace and therefore such Libelling be it true or false is punishable by our Law It was resolved in the Star-Chamber 44. Eliz. Hallywoods Case that if any find a Libel and would preserve himself out of danger if it be a private Man the finder may either burn it or presently deliver it to some Magistrate but if it concern a Magistrate or Publick Person he ought to give it to the Magistrate One Jesses was indicted for that he exhibited an infamous Libel directed unto the King against Sr Ed. Coke late Chief-Justice of the Kings Bench and against the said Court for a Judgment given in the said Court in the Case of Magdalen Colledge affirming the said Judgment to be Treason and calling him therein Traitour perjured Judge and scandalizing all the Professours of the Common Law and containing much other scandalous matter and fixed this Libel upon the great Gate at the entrance of West minster Hall and in divers other publick Places And being upon this arraigned prayed that Councel might be assigned which was granted and he had them but would not be ruled to plead as they advised but put in a scandalous plea and insisting upon it affirmed that he would not plead other wise whereupon it was adjudged He should be committed to the Marshall and that he should stand upon the Pillory at West minster and Cheapside with a Paper mentioning the offence and with such Paper be brought to all the
A Compendious COLLECTION OF THE LAWS OF ENGLAND Touching Matters Criminal Faithfully collected and Methodically digested not only for the use of Sheriffs Justices of the Peace Coroners Clerks of the Peace and others within that Verge but of all the People in general By J. B. Esq LONDON Printed for John Bellinger in Cliffords-Inne Lane near Fleet-street and Tho. Dring at the Harrow at Chancery-Lane end in Fleet-street 1676. Maximae Dignationis Ac quondam Coll. Regin IN ACAD OXONIENSIS Alumnis Ornatissimis Domino Josepho Williamson Equestris Senatorii Ordinis Socio Dignissimo M. Monarchae semper Aug. fimulac Clementissim nostri D. D. Caroli Secundi Primicerio eidemque Serenissimo Principi ab intimis suis Consiliis Thomae Lamplugh S. T. D. Ecclesiae Roff. Decan Archidiac Londinensi ac S. R. M. a Sacris Domesticis Necnon D. Roberto Southwell Militi Aurato S. R. M. Britanniae in Sanctiori suo Consilio Secretario in Concessu Ordinum totius Regni Senatori gravissimo TRACTATULUM HUNC De Jure ac Judicio Criminis non simulate sed vere ex animo consecrat Collegii Praefati olim etiam Alumnis atque amplitudini N N. suorum nunc Servus Devotissimus J. B. JVS CRIMINIS OR THE Law of ENGLAND TOUCHING Matters Criminal JUS CRIMINIS or the Obligation of Crime is whereby a Subject for a Delict or Offence against the Imperial Crown of England is obnoxious and liable to punishment And a delict or offence is whereby the King and Common-wealth which make but one are injured Of Offences commonly termed Pleas of the Crown some are perpetrated mediatly against the Crown though not principally yet consequentially And some immediatly are said to be committed against the King Himself who is Head of the Common-wealth and in whom all general Injuries reside and to whom the Reformation of all Publique wrongs doth inseperably appertain The former kind may be divided into 3 Classes viz. 1. Into those that have Relation to life it self such as Homicide 2 Into those that respect the Body and Members as Battery Mayhem and Rape 3. Into those that belong to Dominion or property such as Theft and burning of Houses The latter kind do comprehend High-Treason Misprision of Treason Robbing the King's Treasure Bribery Extortion striking in any of the King's Courts where He resides Personally or by Representation and all manner of Breaches of the Publique Peace such as Conjurations Routs Ryots Affrayes Duels Lybels and false Rumours Of these several kinds in their Order 1. Of those Crimes that are committed mediatly contra Coronam dignitatem Regis and do relate to Life it self as Homicides In Homicide are worthy of Observation the Etymologie of it and its general Division Est homicidium sayes Bracton hominis Occisio ab homine facta si enim a Bove Cane vel alia re non dicetur proprie Homicidium Est dictum Homicidium ab homine Caedo quasi hominis Caedim And with Bracton doth Concurre in this matter another antient Author viz. Mr. Horne whose very words are these Homicide est Occision de Home per Home fait car si soit per beste ou mischeance nest Homicide Thus much of the Definition and Origination of the word Homicide As for the right division of Homicide take this as followeth Of Homicides some be done 1. Proposito voluntarily and of malice fore-thought as petty-Treason and Murther 2. Impetu voluntarily and not of malice fore-thought Of these some be Felony as Man-slaughter and some be no Felony Of which some be in respect of giving back inevitably in defence of himself upon an assault of Revenge and some without any giving back as upon the Assault of a Thief or Robber upon a man in house or abroad Some upon the Assault of one that is under Custody as the Sherif or Gaoler assaulted by his prisoner some in respect that he is an Officer or Minister of Justice without any assault in Execution of his Office or Lawful warrant 3. Casu such as be no Felony neither forethought nor voluntary as Man-slaughters by misadventure Having shewed the Reader Sr. Cook 's division of Homicide I begin with the first Branch viz. Homicide voluntary and of malice fore-thought and this conteines petit Treason and Murder Treason being derived from Trahir which is treacherously to betray Trahue betrayed and Trahison per Contractionem Treason is the betraying it self it is divided into two parts into High Treason and petit Treason It is called High or Grand Treason in respect of the Royal Majesty against whom it is perpetrated and Comparatively it is stiled petty Treason in respect it is committed against Subjects and inferior persons so that this petit Treason is when wilful Murder in the Estate Oeconomical is committed upon any Subject by one that is in subjection oweth Faith Duty and Obedience to the party Murdered as in these three Cases following which are only mentioned by the Statute of 25. E. 3. C. 2. de prodicionibus and likewise by Britton Cap. 8. 22. 1. When a servant slayeth his Master This was petit Treason by the Common Law for it appeareth by the Book 12. Ass that a woman servant killed her Mrs wherefore she had Judgment given to be burned which is the Judgment at this day of a woman for petit Treason And herewith agreeth 21 E. 3. 17. Upon the Act aforesaid if the servant kill the wife of his Master it is petit Treason for he is servant both to the Husband and wife A servant upon malice pretended shooteth at a stranger and misseth him and killeth his Master being by this is petit Treason in the servant though he intended no hurt to his said Master yet because he intended Murther thereby A Servant commands one to beat his Master and he killeth him this is petit Treason in the servant if he be present If a servant has an intent to kill his Master and before the Execution of his purpose departeth out of his Masters service and being out of his service put his Intent in Execution aud kills him who was his Master this is petit Treason for the Execution of the Act hath a Retrospection to the Original Cause which was malice conceived when he was a servant A maid-servant conspires to kill her Mistress it is petit Treason in her and Murder in the Actor 2. When a Wife slayeth her Husband The wife maliciously killeth her Husband this is petit Treason in her But if the Husband maliciously killeth his Wife this is only Murther the reason of this diversity is for that the one is in subjection and oweth Obedience and not the other The wife poysoneth an Apple to the intent to poyson a stranger therewith and laid it to that purpose in a secret place and the Husband by chance eateth of it and dyeth thereof within a Year and a day this is petit Treason in the
No Goods be forfeited untill it be lawfully found by the Oath of Twelve men that he is Felo de se And this doth belong to the Coroner super visum Corporis to enquire thereof and if it be found before the Coroner super visum Corporis that he was Felo de se the Executors or Administrators of the dead shall have no Traverse thereunto And this is the reason that no man can prescribe to have Felons goods because they are not forfeited untill it be found of Record that he is Felo de se How a Felo de se shall be enquired of where the body cannot be found If a man be Felo de se Resp and is cast into the Sea or otherwise so secretly hidden as the Coroner cannot have the view of the body and by consequence cannot enquire thereof In this case it may be inquired thereof by the Justices of Peace of that County for they have power by their Commission to inquire of all Felonies But if it be found before them the Executors or Administrators of the dead may have a Traverse thereunto but not to the Indictment taken before the Coroner super visum corporis as before is said Whether a joynt Tenant of Chattels personals becoming Felo de se doth forfeit the whole There is a diversity between Chattels personals in Action and in possession for if a debt be owing to two unless it be in case of Joynt-Merchants and the one is Felo de se he doth forfeit the whole but otherwise it is of goods in possession for there he forfeiteth but his part Whether a debt upon a bare Contract be forfeitable If a man that is Felo de se has a debt upon a bare contract and not upon specialty this shall not be forfeited unto the King Thus much of Felo de se 2. Of Murder in respect of another Bracton defineth this kind of Murder to be Homicidium quod nullo praesente nullo sciente nullo audiente nullo vidente clam perpetratur And of the same mind is Britton whose words are Murdre est occision de home disconu feloniousment fait dount home ne poit scaver per qui ne per quex As also Fleta Est murdrum occulta hominum occisio a manibus hominum nequiter perpetrata que nullo sciente vel vidente facta est preter solum Interfectorem suos coadjutores fautores yet Fleta saith also that it was not murder except it were proved that the party slain were English and no stranger But as Stamford s aith the Law in this point hath received an alteration by the Stat. of 14. E. 3. And therefore this murder is now otherwise to be defined or described It is when a Reasonable Creature be it man woman child Subject born or Alien persons outlawed or otherwise attainted of Treason Felony or premunire Christian Jew Heathen Turk or other Infidel being under the Kings peace is slain or killed by a man of sound memory and of the age of discretion with malice forethought either expressed by the party or implied by Law Touching the former viz. Malice expressed take these Queries with their Solutions Whether this same malice though it be intended against one it shall be extended towards another This Malice is so odious in Law as though it be intended against one it shall be extended towards another And therefore Bracton's words are siquis unum percusserit cum alium percutere vellet in felonia tenetur As if A. put poyson into a pot to the intent to poyson B. and set the same in a place where he supposeth B. will come and drink thereof and by accident one C. unto whom A. hath no malice cometh and of his own will taketh the pot and drinketh thereof of which poyson he dyeth This is murder in A. for the Law doth couple the event with the intention and the end with the cause But herein is a diversity between the principal and the Accessory For if A. command B. to kill I. S. and B. killeth I. D. mistaking him for I. S. this is murder in B. because he did the Act which sprang out of the Root of malice but A. is not Accessory because his own commandment was not pursued But on the other side if A. command B. to kill I. S. by poyson and he doth it by violence as by weapon sharpe or blunt Gun Cross-bow Crushing c in this case notwithstanding the fact be not executed according to the mean prescribed yet A. is Accessory nevertheless for the commandment was to kill which ensued though the mean was not followed Whether killing a man by poyson be more detestable than by any other means To kill a man by poyson sayes Coke is the most detestable of all because it is most horrible and fearful to the nature of man and of all others can be least prevented either by Manhood or providence This offence was so odious that by Act of Parliament it was made High Treason and it inflicted a more grievous and lingring death than the common Law prescribed viz. That the Offendor shall be boyled to death in hot water upon which Statute Margaret Davy a young woman was attainted of High Treason for povsoning her Mistress and some others was boyled to death in Smithfield the Seventeenth of March in the same year But this Act was afterwards repealed by 1. E. 6. c. 12. and 1. Mar. c. 1. Having given you the words of Sir Edward Coke touching poysoning I shall mention something in the civil Law concerning it Plus est hominem extinguere veneno quam occidere gladio For Clam interficere sayes Gothofredus on the Text gravius est quam palam Plus est hominem veneno extinguere quam gladio occidere Lege Cornelia veneficij Capite damnantur qui artibus odiosis tam venenis quam susurris magicis homines occiderint vel mala medicamenta publice vendiderint Whether an Infant within the age of Nine years can be guilty of Murder Vn Infant deins age ix ans occist un Enfant de ix ans Confesse le Felony auxi fuit trove que quant il luy avoit tue il luy occult auxi le Sanke que fuit sur luy effundes si il ceo cxcuse And the Judges held that he ought to be hanged But Fairefax said that the words of Fortescue were viz. That the Reason why a person is executed for Murder is for example that others may fear to offend But such punishment can be no example to such an Infant or to a person that hath not discretion Le Recorder de Londres monstre coment un enfant entra le age de x. ans xii ans suit endite de mort il fuit appose de ceo il dit que il gard barbettes ove cestuy que est mort
his cudgel and the said Payne having a Rope tyed about his middle and one end of the Rope hanging down the said Halloway tyed the end of that Rope to the Horses tayle and struck the said Payne two blows upon his back whereupon the said Payne being tyed to the Horses tayle and the Horse running away with him drew him upon the ground three Furlongs and by this meanes brake his shoulder whereof he instantly dyed and the said Halloway cast him over the pale into certain bushes and whether upon all this matter found the said Halloway be guilty of the Murder prout they pray the discretion of the Court and if the court shall adjudg him guilty of Murder they find him guilty of Murder if otherwise they find him guilty of Man-slaughter and this special Verdict by Certiorari was removed into the Kings Bench and depended three Termes and the opinion of all the Judges and Barons was demanded and they all besides Hutton who doubted thereof held clearly that it was Murder for when the Boy who was cutting on the Tree came down from thence upon his command and made no resistance and he then struck him two blowes and tyed him to the Horses tayle and struck him again whereupon the Horse ran away and he by that meanes slain the Law implies malice and it shall be said in Law to be malice prepensed he doing it to one who made no resistance he was adjudged to be hanged and was hanged accordingly If a man give poyson to another person of which poyson the party dyeth within the Year this implyeth malice and is adjudged wilful Murder of Malice prepensed Note that a man may be poysoned Four manner of wayes 1 Gustu by Taste that is by Eating or Drinking being infused into his meat or drink 2. Aubâ—litu by taking in breath as by a poysonous persume in a Chamber or other Room 3 Contactu by touching 4. and lastly Suppostu as by a Glister or the like Thus much of malice implyed in respect of the manner of the Deed. 2 Malice implyed doth happen in respect of the person slain And therefore it hath been resolved that if any Sheriff under-Sheriff Sergeant or Officer who hath execution of Process be slain in doing his Duty it is murder in him who kills him although there were not any former malice betwixt them for the Executing of Process is the life of the Law and therefore he who kills such an Officer shall loose his life for that Offence is Contra potestatem Regis Legis and therefore in such case there needs not any inquiry of malice The same Law is if any Justice of Peace Constable or any other Officer or any who comes with them in their Assistance for the preservation of the peace be slain in executing their Office it is murder through malice implyed so if a Watch-man be killed in staying Night-walkers it is murder One Thomas Pew was Arraigned for the murder of one Gardiner and upon evidence it appears that the said Gardiner was a Bayliff Sworn and known and Under-Bayliff to the Dean of Westminster and he having the Sheriffs Warrant to Arrest the said Thomas Pew upon a Capias out of the common Bench and seeing him in Shyre-lane within the liberty of Westminster the said Pew seeing him drew his Sword and the said Gardiner approaching to lay hold upon him not using any words of Arrest as was proved Thomas Pew said as it was proved upon the Examination of two Witnesses before the Coroner stand off come not near me I know you well enough come at your peril and the Bayliff taking hold of him he thrust him with his Sword that he dyed immediatly It was held by all the Court that it was murder for he coming as an Officer to Arrest and not offering any violence or provocation although he used not words I Arrest you or shewed him any Warrant because peradventure he had not time nor was demanded the cause the Law presumes it to be malice and murder in him that so kills one being an Officer and coming to execute process Resolved that if there be Error in Awarding of process or in the mistake of one process for another and an Officer be slain in the Execution thereof the offendor shall not have the Advantage of such Error no more then a Sheriff who suffers a prisoner to escape shall take advantage of any Error thereby but the Resisting of an Officer when he comes to make an Arrest in the Kings name is murder But a man shall take advantage against an Officer where he is slain in doing an unlawful act so likewise upon a variance in an essential part of the parties Name As to the former take this Resolution One Cook was Indicted for the Murder of Marshal upon his Arraignment pleading not guilty it was found that the said Marshal was a Bayliff to the Sheriff of and had several Warrants upon several Capias ad satisfac against the said Cook and his Father directed unto him and other Bayliffs and that they by vertue or colour thereof entred into the said Cookes stable and out-house and hid themselves all Night and at 8 of the clock next morning coming to Cooks dwelling House called to open his doors and suffer them to enter because they had such Warrants upon such Writs at the Suit of such persons to Arrest him and willed him to obey them But the said Cook commanded them to depart telling them they should not enter and thereupon they brake the Window and afterward came unto the door of the said House and offered to force that open and brake one of the Hinges thereof whereupon the said Cook discharged his Musquet at the said Marshal and strook him of which stroke the day following he Dyed and whether upon all this matter he be guilty of Murder or Manslaughter was the doubt After Argument for Cook at the Bar all the Justices delivered their opinions that it was not Murder but Man-slaughter only for although he killed a Bayliff yet he killed him not in duly executing process for it is not Murder unless there be Malitia praecgitata or Malitia implicita as to Murder one suddenly or in Resistance of an Officer doing his Office by serving the process of Law wherein he is assisted Cum potestate Regis Legis But here this Bayliff was slain in doing an unlawful Act in seeking to break open the House to execute process for a Subject which he ought not to do by Law although he might have Entred if the door had been open and arrested the party and it had been lawful yet he ought not to break open the House for that it is not Warranted by Law and especially lying there in the night and in the morning breaking the Window and offering to force the door which is not sufferable for under colour thereof one may enter who hath not any such Authority and every one is to
against his will it is no Homicide But Briton cap. 5. De Homicides saith that if one who is not of the mystery of a Physician or Chirurgion take upon him the Cure of a man and he dieth of the potion or Medicine this is saith he Covert felony In the Civill Law it is thus Medico imputari eventus mortalitatis not debet Ita quod per imperitiam commisit imputari ei debet praetextu humanae fragilitatis delictum decipientis in periculo homines inoxium esse non debet Imperitlia culpae adnumerontur veluti si Medicus ideo servum tuum occiderit quia male secuerit aut perperam ei medicamentum dederit Thus much of the Pleas of the Crown that have relation to the life of man I proceed now to those that respect the body and members 2. Of those Crimes that appertain to mans body or members and they are Battery Mayhem and Rape Battery is when a man assaulteth and beateth another this is against the Law and Peace of the Realm which ordaineth that no man shall be his own Judge or revenger of his own private wrong but shall leave this to the Censure of the Law And this is agreable to the Roman Laws Generali lege decernimus neminem sibi esse judicem vel jus sibi dicere debcre In re enim propria iniquum admodum est alicui licentiam tribuere sententiae Again Non est singulis concedendum quod per Magistratum publice possit fieri ne occasio sit Majoris tumultus faciendi wherefore he that is so beaten may indict the other party who upon it shall be fined to the King But some there are that may in a reasonable and moderate manner chastise correct and beat others 1. In respect of power proceeding from the Law of nature as Parents may correct their own Children 2. In respect of Authority oeconomical as the Master may chastise his Servant or Apprentice 3. In respect of power arising from Civil Justice as the Gaoler and his servant the unruly prisoners the Officers him that is arrested and will not otherwise obey Also a man may justify the beating of another in defence of his own person or of the person of his Wife Father Mother or Master But when any is assaulted or beaten in Church or Churchyard it is not lawful for him to return or give any blows in his own defence as he may elsewhere in other places Mahim or maime Mahemium cometh of the old French Mehaigne a Maime a corporal hurt whereby a man loseth the use of any member The Canonists call it Membri mutilationem or Mayhem is where by the wrougful Act of another auy member is hurt or taken away whereby the party so hurt is made unperfect to fight As if a bone be taken out of the head or a bone be broken in any other part of the body or foot or hand or finger or joynt of a foot or any member be cut or by some wounds the sinews be made to shrink or other member or the fingers made crooked or if any eye be put out or the fore-teeth broken or any other hurt in a mans body by means whereof he is made the less able to defend himself or offend his enemy But the cutting of an ear or nose or breaking the hinder teeth or such like is no Mayhem because it is rather a deformity of the body then diminishing of strength and that is commonly tryed by beholding the party by the Justices And if the Justices stand in doubt whether the hurt be a Mayhem or not they use and will of their own discretion take the help and opinion of some skilful Chirurgeon to consider thereof before they determine upon the Cause But whether a man may be indicted for maiming himself To this it answered that he may As it appears in the Case of one Wright anno 11. Jac. in the Country of Leicester who being a yong strong and lusty rogue to make himself important thereby to have the more colour to beg or to be relieved without putting himself to any labor caused his Companion to stricke off his left hand and both of them were indicted fined and ransomed therefore and that by the opinion of the rest of the Justices for the members of every subject are under the safeguard and protection of the King to the end that they may serve the King when occasion shall be offred and therefore not in the power of a subject to maim or hurt his own body or limbs or to cause another to do it And this is agreable to the Civil Law Nemo membrorum suorum est dominus Liber home suo nomine utilem aquiliae habet actionem directam enim non habet quoniam dominio membrooum suorum nemo videtur By the ancient Law of England he that maimed any man whereby he lost any part of his body the Defendant should loose the like part as he that took away another mans life should loose his own And this was grounded upon the Law of God Levit 24 v. 18 19. 20. Deut. 19. v. 21. It is called among the Latines Lex Talionis or Reparationis among the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 per quam quis Patitur quod alteri fecit This offence of May em is under all felonies deserving death and above all other inferiour offences so as it may be truly said of it that it is Inter crimina majora minimum inter minora maximum Rape is the violent deflouring of a Woman against her will and this offence is felony as well in the principal as in his Aiders vide 11. Hen. 4. c. 13. 1. E. 4. c. 1. West 2. c. 13. Cromptons Justice of Peace f. 43 44. But my Lord Coke defines it thus It is when a man hath carnal knowledge of a woman by force and against her will or Rape is felony by the Common-Law declared by Parliament for the unlawful and carnal knowledg and abuse of any woman above the age of ten years against her will or of a woman child under the age of ten years with her will and the offender shall not have the benefit of Clergy Vide 18. Eliz. c. 6. If the party that is ravished conceive by the Ravisher a child at the time of the Ravishment this is no Rape because she could not conceive unless she assent Bracton in 24th chapter of his third book sheweth that by the Antique Law of King Athelstan He that meeting a Virgin sole or with company did but touch her unhonestly was guilty of breaking the Kings Edict It against her will he threw her on the ground he lost the Kings favour if he discovered her and cast himself upon her he lost all his possessions if he lay with her he suffereth Judgement of life and member yea if he were an Horse-man his horse lost his tail and main His hawk likewise lost
Courts at Westminster and be continued in Prison until he made his submission in every Court and that he should be bound with sureties to be of good behaviour during his life and should pay a thousand pounds fine Adam de Ravensworth was indicted in the Kings Bench for the making a Libel in writing in the French Tongue against Richard of Snowshal calling him therein Roy de Raveners c. wheupon he being arraigned pleaded thereunto Not-guilty and was found guilty So by what has been said a Libeller or publisher of a Libel committeth a publick offence and may be indicted therefore The words of the Civil Law touching Libellers are these Injuria committitur si quis insamiam alicujus Libellum aut Carmen an t Historiam scripserit composuerit ediderit dolove malo fecerit quo quid eorum fieret Si quis famosum Libellum five domi five in publico vel quocumque loco ignarus repererit aut corrumpat priusquam alter inveniat aut nulli confiteatur inventum Si vero non statim easdem Chartulas vel corruperit vel igni consumpserit sed vim earum manifestaverit sciat se quasi authorem hujusmodi delicti capitali sententiae subjugandum 11 and last False Rumoâ—rs and slanderons news None shal report slanderous news whereby discord may arise between the King and his People or Great Men of the Realm And he that doth so shall be taken and kept in Prison until he hath brought him into the Court which was the first authors of the tale The penalty is the same for telling slanderous lies of the Great Men of the Realm But by the 12. R. 2. it is enacted that when any such is taken and imprisoned and cannot find him by whom the Speech be moved that he be punished by the advice of the Councel not withstanding the said Statutes Note the Law before the Conquest was That the Author and Spreader of false Rumours amongst the People had his tongue cut out if he redeemed it not by the estimation of his head To conclude It may easily and manifestly appear to all such as have been conversant in our Chronicles how pernicious and dangeto this our Kingdom unlawful Assemblies and false Rumours have been in all precedent Ages yea such as at the first were very small and inconsiderable and began upon very small occasions yet not being repressed in time grew to such greatness and height that they afterward put in hazard the State and Government of this Land And therefore it is behoveful and good wisdom for all Magistrates and Justices of Peace to endavour by all good means to quench the beginnings and first sparks of such offences as knowing that for want of timely restraint they may soon grow to like danger again And the axiome in our Law is Interest Reipublicae ut pax in Regno conservetur quaecumque paci adversentur provide declinentur i. e It is most necessary in a Common-wealth to provide that tranquility and peace be continued in the Realm and that all things being contrary thereunto may by foresight be eschewed Thus much of the first Part of my Treatise I proceed to the Second Judicium Criminis OR THE JUDGMENT OF ENGAND Touching PLEAS OF THE CROWN CONCERNING Judgments Criminal I shall present these particulars worthy of the Candid Readers observation 1. The Definition of punishment 2. The end of punishment 3. The Division or several kinds of punishment found in our Authours 4 The rules to be observed by our Judges for the inflicting of pains or punishments 5. The circumstances to be weighed in relation to punishments 6. The persons to be considered in Criminal Judgments 7. The matters of Judgements Criminal 8. The Judicial Acts according to our Law Of these in their order 1. Of the Definition of punishment Punishment in general signification is Malum passionis quod infligitur ob malum actionis but particularly it is defined by Mr Horn thus Papne est a satisfaction de Trespasse on de peche 2. Of the end of punishment The principal end of punishment in our Law is that others by example may fear to offend Vt poena unius sit metus multorum and therefore a Man that is non compos mentis or an Infant that is within the age of discretion is not un name within the statute of 25. E. 3. c. 2. de proditionibus for the end of punishment is that others may be deterred from the perpetration of similar offences But such punishment can be no example to mad Men oâ— Infants that are not of the age of discretion Touching the end of punishment I shall offer the saying of Quintilian and Seneca Quintilian hath these words Omnis poena non tam ad delictum pertinet quam ad exemplum Seneca thus In vindicandis injuriis haâ— tria Lex sequuta est quae Princeps quoque sequi debet ut aut eum quem punit emendet aut ut paena ejus caeteros meliores reddat aut ut sublatis malis secuciores caeteri vivant 3. Of the Divisions or several modes of punishment The kinds or modes of pain whereby delinquents are asserted are these saith Bracton Sunt quaedam quae adimunt vitam vel membra sunt quae auferunt Civitatem Burgum vel Provinctam Sunt quae continent auxilium perpetuum vel ad tempus vel coercitionem ss Imprisonamentum vel ad tempus vel ad perpetuum Sunt quae fustigationem verberationem poenam Pilloralem Tymboralem damnum cum infamia inducunt sunt etiam quaedam quae dignitatis ordinis inducunt depositionem vel alicujus actus privationem vel prohibitionem The Division of Fleta is thus Personalium injuriarum quoedam sunt criminales quaedam Civiles Criminalium quaedam sententialiter mortem inducunt quoedam vero minime Horne thus Of pains violent there be two sorts Corporal and Pecuniary of Corporal some be Mortal and some be Venial Having given the Reader the several punishments in our Law it will not be amifs to shew briefly the several sorts of inflictions used amongst the Jews and Romans 1. Amongst the Jews Their punishments were either Capital or not Capital Their Capital contained four sorts of Death 1. Lapidation or Stoning 2. Combustion or burning 3. Decollation or Beheading 4. Suffocation or Strangling The manner of burning was twofold some they burnt with wood and fagots this was termed by them the Burning of the Body Others they burnt by pouring in scalding hot lead in at their mouthes which descending into their bowels killed them the bulk of their Body remaining whole and this was termed therefore the burning of the Soul The lesser punishments not Capital were chiefly four 1. Imprisonement 2. Restitution 3. Talio or Retaliation 4. Scourging 2. Amongst the Romans Punishments publickly insticted on Malâ—factors were either Pecuniary mulcts or Corporal punishments The Pecuniary mulcts were two sorts either an
inadvertence there omitted the Printer has thought it not much amiss to put it at the end of this Discourse by way of Appendix And thus the Author treats concerning the Statutes of Hue and Cry BY the Statutes of 13. E. 1. of Winton c. 1. 28. E. 3. c. 11 and 28. 1. c. 17. the Country shall answer if the Robbers be not taken By the Statâ—te of 27. Eliz. c. 13. are enacted these particularities § 1. That the Inhabitants of a hundred shall be chargeable with the moyety where a fresh Suit shall cease 2. That the Clerk of the Peace shall prosecute the Suit which Suit commenced shall not cease upon the death or remotion of the said Clerk of the Peace 3. A Remedy for those against whom the Recovery and Execution is had to have Contribution 4. That there shall be no penalty where any of the offenders be apprehended 5. The Suit shall be commenced within one year next after such perpetration or Robbery or else the Person or Persons robbed shall not take any benefit by vertue of any of the said former Laws or Statutes 6. That the Party robbed must give notice and intelligence of the Robbery committed unto some of the Inhabitants of some Town Village or Hamlet near unto the place where any such Robbery shall be committed 7. That the Party robbed shall not have any Action upon any of the Statutes aforesaid except he shall first within twenty days next after such Action to be brought be examined upon his Corporal Oath before some Justice of Peace of the County where the robbery was committed whether he doth know the Parties that committed the Robbery or any of them and then shall become bound to prosecute the offenders Having given a summary of these Statutes upon Hue and Cry I shall present to the Reader several Resolutions given at the Courts of Westminster upon the Statute of Winchester and the Stat. of 27. Eliz. The former you must kow gives penalty and Remedy the latter shews how the Examination shall be and in what time before the Action brought 1. Resolves on the Stat. of Winton A Robbery for which the hundred must answer by force of the Statute of Winton is to be done openly so as the Country may take notice thereof themselves but a robbery done secretly in the House the Country cannot take notice thereof for every one may keep his house as strong as he will at his peril for it was adjudged in Ashpoles Case that the Party robbed needed not to give notice thereof to the Country for it may be the Party robbed was bound or Maimed c. so as he could not make Hue and Cry to give notice A Robbery was done in January presently after the Sun-setting during day light and it was adjudged that the hundred shall answer for the same for it was convenient time for Men to travel or to be about their Business A Robbery was done in the Morning ante lucem the hundred shall not be charged It was held by Anderson and all the Justices that whereas the Stat. of Winchester speakes of Robberies done in the day before night yet if a Robbery be committed in the Morning before day or in the Evening after the day in any time of the night in which Men use commonly to travel that the hundred is answerable for it but if it be at twelve or one of the Clock in the night at which time every one is intended to be in bed the hundred is not answerable for the Robbery The Jury found that the Robbery was done post lucem ejusdem diei ante Solis ortum Anglice After day-break and before Sun-rising and upon this the Court advised and Judgement was given for the Plaintiff and a President shewn Pasch 28. of Eliz. Rot. 130. where the Robbery was done post occasum Solis per diuruum lumen Anglice day light and there adjudged for the Plaintiff If an house be robbed in the day and the Felons escape Hue and Cry being made whether the hundred shall answer for that Robbery by the Stat. of Winton Gawdy and Popham conceived that the hundred shall not be charged For the Stat. of Winton extends only to Robberies done to the Person And was principally made for safeguard of travellors But every one ought to keep his own house at his peril for it is his Castle and no other ought to meddle there therefore it is not reason that any should be charged if he be robbed there Robbery done on a Sunday shall be chargeable to the Country 2. Resolves on the Stat. of 27. Eliz. By the Stat. of 27. Eliz. c. 13. none shall have Action upon the said Statute except the Parties robbed so soon as he may give notice of the same to any of the Inhabitants of any Village Town or Hamlet next to the place where the Robbery was done and if they in pursuit apprehend any of the offenders that will excuse the Town Action upon the Statute of Winton for that one Brook his Servant was robbed and alledges that the Plaintiff himself came before a Justice of Place and was sworn according to the Stat. of 27. Eliz. And after Verdict it was alledged in Arrest of Judgement that the Servant was to be sworn and not the Master and so was the opinion of the Court For the Servant might know the Persons when the Servant was robbed and the Master was not in company and the Intent of the Stat. is that he that had notice shall be sworn and thereupon Judgment was staid Action upon the Stat. of Winton whereas one Palmer the Plaintiffs Servant was robbed within the hundred of 68 pounds by Persons unknown and had made Hue and Cry according to the Stat. and one of the Thieves were taken and the said Palmer had made oath before such a Justice of Peace of the said County next adjoining to the said hundred within 20 daies before this Action brought that he did not know any of the Parties who robbed him that the said hundred had not made him any recompense And upon Not guilty pleaded and tryed at the Bar this Terme and found for the Plaintiff it was moved in Arrest of Judgment that this Action lyes not because the Plaintiff himself was not sworn that he knew not any of the Parties who did the Robbery for it is not sufficient that the Servant who was robbed was sworn for by the Statute of 27. Eliz. the Party who brings the Action ought to make that Oath and it was argued that the Servant who was robbed onght to have brought the Action and then his Oath would have been sufficient But when the Master brings the Action he himself ought to be sworn that he knew not any of the Robbers otherwise he might not bring it and therefore the Action lyes not But it was resolved by the Court that the Action well lyes for the Master and
that the Servants Oath was sufficient for it is properly in his notice that he was robbed and did not know any of the Robbers and the Master knows it not that he was robbed or who were the Persons but by the report of his Servant and it would be inconvenient if the Master should not bring the Action but the Servant might release or compound or discontinue the Suit and so the Master should have the loss by his falshood therefore the Master shall bring the Action and have his Servant who was robbed be his witness whereupon it was adjudged for the Plaintiff Action upon the Stat. of Hue and Cry supposing that he was robbed in such a High way in divisis Hundredorum and that he gave notice thereof to the Inhabitants of the Hundred near to the Place where he was robbed After Verdict for the Plaintiff it was moved in Arrest of Judgment that this declaration is not good because he doth not shew that the High way is within any Hundred And in truth it out to be given to the Inhabitants of both Hundreds and so be divers Presidents that notice was given in the other Hundred to the Inhabitants of that hundred Sed non allocatur wherefore it was adjudged for the Plaintiff Hue and Cry made in the next Vill adjoyning though it were in another County is good enough for a Stranger cannot know the division of Countys Vide Cro. 3. part Merrik v. Hundred de Rapesgate 379. Action upon the Stat. of Winton of Hue and Cry and shews in his Count the said Statute and that such a day he was robbed of so much within that Hundred and that he made Hue and Cry and shews according to the Statute of 27. Eliz. And that within 40 days before the Action brought he was sworn before such a Justice of Peace that he was robbed of so much and did not know any of the Felons that as yet the Defendants had not taken any of the Felons nor satify'd him contra formam Stat. praedict unde Actio accrevit After Verdict for the Plaintiff it was moved that this Declaration was not good because the Action is founded upon two Statutes and both mentioned in the Declaration yet he concludes contra formam Statuti praedicti which is not good and the Court thereupon doubted and appointed Presidents to be searched and after divers Presidents of this Court and the Common Bench shewn unto them wherein some were Contra formam Stat. praedicti and some Statutorum praedictorum And the Court held that the best forme was Statuti praedicti For the Action was grounded only upon the Statute of Winton which gives penalty and remedy the other shews only how the Examination shall be and in what time before the Action brought otherwise he shall not have the Action and Statuti praedicti refers only to the Stat. of Winton which gives the Action therefore the best form to declare is Contra formam Statuti praedicti Thus much of the Satutes touching Hue and Cry FINIS THE TABLE A. Accessories IN what offences Accessories may be and in what not 123 The several sorts of Accessories 124 Accessories by the Common Law what 124 125 Accessories by Statute Law what 125 126 Where the Common Law or Statute Law makes a Felony Accessories are still included 126 Rules touching Accessories Id. Where an Accessory cannot be guilty of Petit-Treason when the principal of Felony Id. Where the Accessory shall not be tried if the Principal hath his Clergy or be pardoned 126 127 Writing of Letters in favour of a Felon will not make the Party an Accessory 129 Instructing a Felon to read will not make an Accessory 129 Perswading Witnesses not to appear will not make an Accessory 129 Quaeries touching Accessories 128 129 c. Affrays The derivation of the Word Affray and the diversity betwixt it and an Assault 106 The punishment of an affray 103 What persons are bound to part Affraies 103 The punishment of those that refuse to part Affraies 103 104 Affraies inquirable in Leetes 106 Appeals The Description and Derivation of an Appeal 136 Who may and who may not Appeal accuse c. 121 Where the Wife shall have an Appeal of the death of the Husband and where not 137 138 Where the Wife shall have an Appeal and yet not be endow'd and e converso Ibid. The true reason why the Wife hath an Appeal de Morte Viri 138 139 She ought to be Sole and unmarried that brings an Appeal 138 The taking of a second Husband after Judgment and before Execution hinders the Execution of the Judgment 138 An Appeal ought to be sued in proper Person 140 141 Appeals how many ways commenced 141 A Diversity betwixt an Appeal by Bill and by Writ Ib. Approver Who may and who may not be an Approver 123 His Description Ib. Where none can be an Approver upon an Appeal 122 Where a Man appealed by an Approver and thereupon kept in prison may be Bailed by good Sureties given 122 Assemblies Assemblies unlawful how dangerous in former times 110 Arraignment Arraignment of a Prisoner what 149 The manner of Arraigning of a delinquent 149 Attainder Where a Man attainted shall be liable to Arrests and Executions for debt 151 152 A Diversity betwixt an Attainder and an Entry into Religion 152 A diversity betwixt purchasing of Lands before and after an Attainder Ib. A Person attainted after a Pardon may have an Action of Battery c. done before the Pardon granted Ib. The several sorts of Attainders 153 A difference betwixt a Person attainted and convicted Ib. Where upon an Attainder of Felony in an Appeal the Defendant shall forfeit no Lands but those he had at the time of Outlawry pronounced secus in an Indictment Ib. Attainders as to Chattels shall relate but unto the Judgment pronounced 154 Battery What it is 50 Who may chastise and correct in a moderate manner Ib. Where a Man may return blows in his own defence or in the defence of another 51 Where a Man may not return or give any blows in his own defence Id. Bribery Bribery what 94 It may be committed though no Suit depending in foro contentioso 94 95 It may be committed by one that is a Judicial Officer in the Ecclesiastical Court 95 Difference betwixt it and Extortion 97 Burglary The Etymology and definition of it 64 65 What shall be said an entry into breaking of an House to make it Burglary Ib. Where it shall be Burglary though but one doth enter Ib. Where a Man may commit Burglary though he breaketh not the House 65 66 What shall be said a Mansion House the breaking whereof makes it Burglary 66 67 A Chamber of Innes of Court or Chancery is a Mansion House 67 To break an House to the intent to beat another not Burglary 68 House breaking 68 69 70 Burning of Houses It s Description 72 What shall be said Burning of Houses to make