commission do only tend to the maintenance of justice the roote foundation and supporter of peace And whereas the King by the words of the said Commission doth appoint the persons therin named his Iustices to preserue his peace The Commission doth chiefely respect the peace and to kéepe and cause to be kept all ordinaunces and Statutes made for the conseruation of the peace and the quiet gouernment of his people These Statuts amongst many others chiefly be intended Sta. 2. E. 3. 6. 18. E. 3. 2. 34. Ed. 3. 1. the Statutes of Anno 2. Ed. 3. 18. Ed. 3. 34. Ed. 3. by which it is ordained that Iustices of peace shall haue power to heare and determine at the Kings suit all manner of felonies Why they be called Iustices of Peace and Trespasses committed against the peace in the same County and to restraine offendors riottors all other barretors and to pursue take and chasten them to imprison and punish them according to their Trespas and offence and to informe them according to the said Iustices discretion And to inquire of all those that haue béen pillers and robbers beyond the Sea and become againe and goe wandring and will not labour as they had wont to doe And to take and arrest all those which they can find by inditement or suspition and to commit them to prison Binding persons suspected to their good behauiour And to take of all those which be not of good fame in the place where they remaine sufficient suertie and maineprise of their good abearing or behauiour towards the King and his people and the other duelie to punish To the intent that the people be not by such Rioters troubled or endammaged nor the peace broken nor any passengers by the way disturbed or put in perill But the fines which Iustices shall assesse vpon any person shall be reasonable hauing regard the quantitie of the Trespas and the cause 70 So that it appeareth both by the words of the said Commission of peace A Iustice taking suertie of the peace and also by the foresaid Statutes That a Iustice of peace by vertue of his office hath authoritie to preuent the breach of the peace both by taking suertie for the kéeping of it and for the good behauiour of the offendors And that he may do either of his owne motion or discretion or els at the request or praier of an other And by his owne discretion he may cause a common Barretor Rioter or one that maketh an affray in his presence or other person to him suspected to be inclyned to the breach of the peace 9. E. 4. 3. or men menacing one to hurt or kill an other or contending in whote words to finde suertie of the peace And he may perswade one man to require the suertie of peace against an other man and he himselfe after may graunt it for it is no more then he might haue done of his owne authoritie which suertie of the peace What the suertie of the peace is is a recognizance taken by the said Iustice of peace of the partie and his suerties to the King for the kéeping of the peace And as a Iustice of peace may take this suertie of peace or suertie of good abearing as a Iudge by vertue of his office So may he doe it as a minister by force of a Supplicauit directed vnto him out of the Chauncerie Taking suerty of the peace by a Supplicauit in which case he is then only to direct his precept to compell the partie vpon the writ to finde suertie of the peace Which Supplicauit out of the Chauncerie is sometime directed to one Iustice of peace alone sometime to moe and sometime to the Shirife and sometime to him with others And then the same Iustice or Iustices of peace or Shirife must make retorne of the said writ of Supplicauit and a Certificat of his doing into the Court from whence the same was awarded And if the said Iustice of peace shall take the said Recognizance for the kéeping of the peace by vertue of his office Sta. 3. H. 7. 1 then by force of the Statute of Anno 3. H. 7. he shall certifie sende Certificat of a Recognizance or bring the same Recognizance at the next Sessions of the peace where he is or hath bin Iustice that the party so bound may be called And if the partie make default the same then there to be recorded And the same Recognizance with the record of that default shall be sent and certified into the Chauncerie the Kings Bench or into the Exchequer Suertie of good abearing And the suertie of good abearing is granted by authority of the foresaid commission of peace by the warrant of the before rehearsed statut of 34. E. 3. aswell as the suerty of peace is it is ordained for the preseruation of the peace it doth differ in nothing frō that of the peace but that there is more difficultie in the performance of it and the party bound may sooner slide into the peril danger of it The suerty of good abearing is most commonly granted in open sessions or by two or thrée Iust of P. Or vpon a Supplicauit great cause shewed proued it is granted in the Chancery or K. Bench. And though one Iustice of peace alone may grant it if he will yet it is sildom done so 9. E. 4. 3. Kel fo 41. vnles it be to preuent some great sodain imminent enormity or danger The suerty of peace is most times taken at the request of one for the preseruation of the peace chiefely against one But the suerty of good abearing is oftentimes graunted at the suit of diuers and those must be men of credit and to prouide for the safetie of many for the effect and purport thereof is that the partie bound shall demeane himselfe well in his port behauiour and company and doe nothing that may be the cause of the breach of the peace or in putting the people in feare or trouble And it is chieflie graunted against common Barretors common rioters common quarrellers common peace breakers and persons greatly defamed for resorting to houses suspected to maintaine incontinencie or adulterie and against those that be generally feared to be robbers or spoilers of the Kings people or which doe endamage disturbe trouble Articles exhibited to haue good abearing granted or put in peril passengers by the way Co. li. 4. 14. And therefore if one doe exhibit Articles to Iustices of peace against a certaine person comprehending diuers great abuses and misdemeanors not onely touching the Petitioner himselfe but many others to the intent that the same person may be bound to his good behauiour in this case the partie so accused shall not for any matter conteined in the said Articles maintaine an action vpon the case for the party or parties who exhibited the said Articles haue pursued an ordinarie course
DnÌ„i Reg. erga ipsuÌ„ dominuÌ„ Reg. cunctuÌ„ populuÌ„ suuÌ„ precipuè erga C. D. de Twyford in comÌ„ praedicto Husbandman conseruabit ideo ex parte dicti dnÌ„i regis vobis cuilibet vestruÌ„ mando quod de arrestando imprisonando seu aliqualiter molestando praedictuÌ„ A. B. ex causa pÌ„dicta Supersedeatis quilibet vestruÌ„ Supersedeat omnio Et si euÌ„ ex dict' causa non alia ceperitis seu imprisionaueritis seu aliquis vestruÌ„ ceperit seu imprisonauerit tunc à prisona illa sâ—ne dilatione deliberari faciatis Supersedeas in the Chancery for one bound in the common plaâ—e datuÌ„ apud Hilsdon c. 22. H. 6. 59. But if a man be arrested in the common place for the suertie of peace and he is lett to baile to a certaine day at which day he doth bring a Supersedias out of the Chauncerie that he hath found suerties in the Chauncery that is not alloweable because he was by baile which is an imprisonment in law and therefore the suertie in the Chauncery will not serue And it may be that the suerties in the Chancery be not sufficient and that the King and the Court was deceiued therein And yet the common place hath no authority to take suerty of peace 2. H. 7. 1. but of the peace broken before them 81 When the partie against whom the precept is awarded to find suerties for the kéeping of the peace A Recognizance for the keeping of the peace doth come before the Iustice of peace to be bound to the peace then it resteth in the discretion of the same Iustice of peace if he deale in this cause as a Iustice of peace by force of the generall commission of peace and so as a Iudge to assigne what number of suerties he will accept to be bound with the party in what summe of money the party his suerties shall be bound to allow or disallow of the sufficiencie of those suerties to limit the time how long the party shall be bound and to determine vpon some such other circumstances touching that matter But if the same Iust of peace be commanded as a minister in the erecution of the writ of Supplicauit to take the peace of any person then he must do as the writ doth direct him which sometime is to take sufficient suertie to be bound in a summe prescribed and some other time not then it resteth in his owne discretion The most vsuall maner is for a Iustice of peace to take two suerties besides the partie himselfe to be bound by Recognizance to the King viz. Domino Regi and that must alwaies be for the kéeping of the peace The forme of which Recognizance for the kéeping of the peace is as followeth viz. Memorandum qd ' nono die Augusti Anno regni dnÌ„i nostrÌ„ Regis Iacobi dei gratia c. 5. A.B. de Padburie in Comitatu pÌ„dict ' Husbandman Buck. in ê“pria persona sua venit coram me Richardo Ingols by Milite vno IusticiarioruÌ„ dicti dnÌ„i Regis ad pacem in dicto Comitatur conseruandam assignatoruÌ„ assumpsit proseipso sub poena xx li. et D.E. H.I. de C. in Comitatur praedictur Husbandmen adtunc ibmÌ„ in ê“prijs personis suis similiter venerunt manuceperunt pro praedicto A. B. viz quilibet eorum seperatim sub poena x. li. quod idem A. B. personaliter comparebit coram Iusticiarijs dicti domini Regis ad pacem ad ê“ximam generaleÌ„ Sessionem pacis in ComÌ„pÌ„dicto apud Buck. tenendam ad faciendum recipienduÌ„ quod ei per Curiam tunc ibidem iniungetur Et quod ipse interim pacem dicti dnÌ„i Regis custodiet erga ipsum dominuÌ„ Regem cunctum populuÌ„ suum praecipue versus L.M. de O. de comitatu praedict Et quod damnum vel malum aliquod corporale aut grauamen praefatur L.M. nec alicui de populo dicti domini Regis quod in laesionem aut perturbationem pacis ipsius Domini Regis seu praefati L.M. cedere valeat quouismodo non faciet nec fieri procurabit Quam quidem summam xx l' praedict ' A.B. quilibet manucaptorum praedictorum praedictas seperales summas x. l' recognouerunt se debere dicto domino Regi de terris tenementis bonis catallis suis cuiuslibet eorum ad opus dicti domini Regis fieri leuari ad quorumcunque manus deuenerunt si contigerit ipsum A.B. praemissa vel eorum aliquid in aliquo infringere inde legitimo modo conuinci In cuius rei testimonium ego pÌ„dictus Richardus Ingolsby sigillum meum apposui Datur apud Lethenborow die Anno supradict ' And the forme of the Recognizance for the good abearing is this viz. A Recognizance for the good abearing MemoranduÌ„ c. quod ipse A. B. interim se bene geret erga DnÌ„m Reg. cunctuÌ„ populuÌ„ suuÌ„ praecipuè erga L. M. Et quod ipse non inferet nec inferri ê“curabit per se nec per alios damnuÌ„ aliquod seu grauamen pÌ„fato L.M. seu alicui de populo ipsius dnÌ„i Regis de corporibus suis per insidias insultus seu aliquo alio modo quod in laesionem seu perturbationem pacis dicti dnÌ„i Regis cedere valeat quouismodo viz. vterque praedict ' D. E. et H. I. sub poena 50. librÌ„ et praedict ' A. B. sub poena 100. librÌ„ c. And this may be done by a single Recognizance in Latin with a Condition thereunto added in English for the kéeping of the peace or the good Abearing and for the day and place of the parties apparance at the Quarter Sessions 82 A Iustice of peace who vpon his owne discretion compelleth one to find suertie of the peace vntill a certaine day may vpon the like discretion release the same before that day A Releas of the suertie of peace But if a Iustice of peace do graunt the peace at the request of an other viz. at the suit of A. and that the Recognizance be taken to kéepe the peace against A. then may the same A. only releas it and none other before the same Iustice of peace or any other Iustice that will certifie the same releas before the Iustices of peace at the next quarter Sessions for that certificat being of record will discharge it which a releas by déed can not do the suertie of peace being a Recognizance and so of it selfe a record And though the Recognizance be versus cunctum populuÌ„ precipuè versus A. yet may the same A. releas it for though it may séeme populer and that others should haue equall interest therein with A. yet as it appeareth by the word precipuè it was specially taken for his safetie But though in some case a Iustice of peace may releas the suertie of the peace in some
9 And because seruants in husbandrie labourers artificers and other persons of meane degrée should take no incouragement nor occasion to breake the peace nor weare any weapons therewith to menace threaten or terrifie others Therefore by a Statute made anno 12. R. 2. it was ordained St. 12. R. 2. 12. That no seruant in husbandrie or labourer nor seruant of artificer or victualler shall beare any Buckler Dagger or Sword vpon paine of forfeiting of the same except it be for the defence of the realme in the time of warre and then by the suruey of Arraiers for the time beeing or in trauelling with their masters or on their masters businesse And Sherifes Mayors Baylifes and Constables shall haue power to arrest all offendors against this Statute and seize the said Bucklers Swords and Daggers and kéepe them vntill the Sessions of the Iustices of peace and the same shall present before the same Iustices in their Sessions together with the names of them that did beare the same But this shall not be preiudiciall to the franchises of Lords touching forfeitures due to them By the foresaid two Statutes of 2. Ed. 3. and 12. R. 2. it doth appeare that the meaning of the makers of those lawes was not onely to preserue peace to eschew quarrels but also to take away the instruments of fighting and batterie and to cut off all meanes that may tend in affraie or feare of the people Assurances made by menace 10 As menace of life and member giueth cause of an action of trespasse to him that receiueth losse or hurt thereby intituleth the king to a fine 20. Ass p. 14 28. H. 6. 8. in like sort an obligation a release or déed of annuitie made and granted by menace are voidable by the law so that the same menace be of life member or libertie viz. of some hurt to be done to his body by death maiheming or imprisonment and not to his lands or goods for if A. will menace B. that if he will not make him an obligation of xx l that then he wil disseise him of such land 7. Ed. 4. 21. 4. H. 4. 2. 39. H. 6. 51. or dispossesse or take from him such goods in this case if B. doe make and deliuer the said obligation of xx l to A. in an action of debt brought by A. against B vpon the said obligation B. shall not auoyd this obligation in respect of this menace because this menace did not tend to the hurt of the person of B. but to preiudice him in his lands or goods for the redresse and recouerie whereof the law would haue giuen B. a sufficient remedie if A. should haue done him the wrong which he menaced And he that will take an aduantage to auoid his déed by menace must in this plea expresse Fitz. Dures 13. how and in what sort the other partie did menace him viz. that he drewe his sword against him and threatened to kill him if he would not seale and deliuer such an obligation release annuitie c. If A. doe menace B. in one countie that he will kill or maihem him 33. H. 6. 24. 2. H. 5. 10. if hee doe not seale him an obligation of xx l or stand to the arbitrement of C. in a cause depending in question betweene them And after B. beeing at libertie in another countie doth seale the same obligation or doth stand to the arbitrement of C. this obligation or arbitrement is void for it shall be intended to bee done by force of the first menace And if A. doe menace B. that he wil kil him imprison maihem or beate him if he doe not make an obligation of xx l to C. 39. H. 6. 36. Co. li. 2. 9. if in this case B. do become bound by obligation to pay vnto C.xx l. in an action of debt brought vpon this obligation by C. against B. the same B. may auoid this Obligation which he made by this menace of A. though the menace was made by one man the Obligation was made to an other for that the menace was the cause of the making of this Obligation which the law doth respect and punish and not only the partie to whom the Obligation was made 11 Assault batterie be for the most part an accomplishment of that which menace did threaten a performance by déedes of that What is assault and batterie which the other forewarned by words that is to say a violent forcible abusing or attempting to abuse by blowes and stripes the person of an other contrary to the peace of the Realme and the law of the same which hath ordeined that no person shall be Iudge or reuenger of his own wrong but leaue that to the censure of the law that is alwaies readie to heare redresse euery mans iust complaints for he that doth attempt to assault or beat an other to satisfie his own turbulent spirit or to reuenge his owne priuat iniurie doth as much as in him lieth to wrest the sword of gouernmēt out of the K. hands to take from the law her equal censure in justice to make himself both Iudge executioner in his own cause because this disordered person contemning the justice of the Law hath assaulted or beaten an other without warrant of law broken thereby the peace of the realm the law hath deuised a quiet peaceable course to reduce him again to order in punishing him by an action of Trespas of assault batterie wherin being conuicted he shal satisfie the party grieued his damages pay to the K. a fine his body shal be committed to prison vntill he hath satisfied it Though the party menaced shall not haue his remedy by action of Trespas vnlesse the same menace was of life member and also that the party menaced receiued some losse or preiudice therby in his liuelyhood or estate for that the menace the hurt which the party doth receiue thereby being ioyned together do make the trespas giue cause of the action of Trespas Yet in an action of Trespas of Assault battery where it is proued found that the offendor did make an assault only as one did strike at an other with a hatchet but did make no batterie or hurt the person of any other it is otherwise for séeing assaulting doth tend to the breach of the peace 22. Ass p. 60 42. Ed. 3. 7. 40. Ed. 3. 40. 6. H. 7. 1. he that maketh an assault doth his indeuor to hurt the law doth giue to him that is assaulted an action of Trespas to recouer his damages to the K. a fine for by the assault the party assaulted is put in feare euill handled hindred of his busines And if he be diuers times assaulted 45. E. 3. 24. he may haue one action of Trespas for all those assaults shall recouer damages according to the number and grieuousnes of them And
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
good iustification for him though the Iustice of peace did erre in the awarding of the proces And the same law is if the Shirife doth erre in any warrant that he doth direct to the Bailife of a Libertie Arresting an offendor deliuering him to the Constable If a man do arrest an other 10. Ed. 4. 17. who he knoweth hath committed a robberie man slaughter or other felony do deliuer him to the Constable to carrie to the gaole and the Constable will set him at libertie or doth not carrie him to the gaole or that the same person arrested be rescued out of the possession or custodie of him that did arrest him yet in neither of the foresaid cases he that was arrested shall haue an action of False imprisonment against him that did arrest him for that there was no default in him that the offendor was not imprisoned according to his desert Imprisonmēt vntill he hath made an Obligation 50 An action of False imprisonment was brought for imprysoning the plaintife vntill he had made an Obligation of xl 2. Ed. 4. 19. pounds to the defendant and others vnknowen by duresse and this was adiudged maintenable for if the plaintife did not know their names he could not expresse their names for the Obligation is not the effect of this suit but the imprisonment and he shall not recouer dammages for the Obligation but for the imprisonment for that he is not yet damnified by the Obligation because when that is sued he may plead that it was made by duresse of imprysonment and so auoid it But if the action of False imprisonment be brought of an imprisonment vntil he had made a fine he shall recouer dammages for both for he is presently grieued by the fine and so is he not by the Obligation 51 If a master do imprison a man in a house 22. Ed. 4. 45. and deliuer the key of the doore of that house to his seruant The seruant not chargeable for the masters offence the partie imprysoned cannot haue an action of False imprysonment against the said seruant for the kéeping of the key But if the seruant that hath the key do know that the same partie were wrongfully imprysoned then he ought to let him go at libertie for the seruant is bound to obey his masters commaundement but in those things that be lawfull onely And if the seruant which kept the key did not know that the same partie was imprysoned in that house then vpon his plea of not guiltie he shall be excused in an action of False imprisonment brought against him by the partie imprisoned Imprisonmēt by force of a Iustices 52 If a writ of Natiuo habendo or a Iusticies be directed to the Shirif 2. H. 4. 24. he cannot iustify the impris of any man by force therof for they be but commissions to hold plea. And the bodie of a man shall not be arrested or taken but by proces awarded out of a court of record and by those Commissions the Shirises court is not made a court of record 9. Ed. 4. 30. 53 In an action of False imprisonment A warrant vpon a Supplicauit it is a good iustification for the defendant to plead that a Supplicauit came to the Shirife to apprehend the plaintife who made his warrant to the defendant to take him which he did accordingly And yet the Shirife can not giue his authority to an other to take suerty of him 5. H. 7. 6. 54 A Iustice of peace can not direct a warrant to apprehend him who hath broken the peace for he is to be punished by inditement Arresting him who would break the peace at the Kings suit or by action of Trespas of batterie at the partie grieued his suit But he may direct his warrant to apprehend him who he doth doubt meaneth to breake the peace in time to come and to bring him before himselfe or some other Iustice or else to commit him to prison for one Iustice of peace alone may doe his endeuor to preserue the peace before it be broken but being once broken it must be punished by inditement in the presence of diuers Iustices of peace or by action at the common Law Sta. 5. El. 4. 55 If any seruant woorkeman or laborer Imp. of a seruant for assaulting of his master shall wilfully or maliciously make any assault or affray vpon his master mistresse or dame or vpon any other that shall at that time haue the charge or ouersight of him or of the worke wherein he is appoynted or hired to worke and beeing thereof conuicted before any two of the Iustices of peace Maior or head officer of a towne corporat where the offence is committed or before either of the Lords Presidents of the North or Wales by the confession of the said seruant workman or laborer or by the witnesse and oath of two honest men Then euery such offendor shall suffer imprisonment by the space of one whole yeare or lesse by the discretion of two Iustices of peace if it be without a towne corporat if it be within a towne corporat then by the discretion of the Maior or head officer of the same towne corporat with two others of the discréetest persons of the same corporation at the least And if the offence shall require further punishment then to receiue such other open punishment so as it extende neyther to life or limme as the Iustices of peace in open Sessions or as the more part of them or the said maior or head officers or vj. or iiij at the least of the discréete persons of the same corporation before whom the offence shall be examined shall thinke conuenient for the qualitie of the said offence so committed 56 By which foresaid cases and many more Where imprisonment is lawfull and where not it appeareth that imprisonment is lawfull and sufficiently authorized by the Common Lawes and Statutes of this Realme in diuers respectes and for many crimes and there is by it no breach of the peace nor offence to the Law when it is inflicted by the warrant of the law for it aduaunceth as much the justice and peace of the Realme to haue offendors punished as to haue the innocent protected But the imprisonment which tendeth to the breach of the peace and the offence of the law is when one person or more vpon his or their owne authoritie eyther in reuenge of some supposed wrong receiued or in hope of a priuat gaine expected or for some other cause will of his or their owne authority imprison or arrest an other for the redresse whereof the party grieued shall haue an action of false imprisonment or an action of trespas recouer his damages And the same offendor which before did wrongfully imprison an other shall then vpon his conuiction by verdict or his owne confession be himselfe lawfully imprisoned vntill he hath paid to the king a
Ed. 1. 25. and doth not except an Enfant By the statute of Westm̄ 2. if he that is named a disseisour in an Assise do personally alleage any false exception whereby the taking of the assise is deferred viz. that at an other time an assise of the said tenements passed betwéene the said parties or that a writ of higher nature is depending betwéene them of the said tenements Imp. for failing of a record pleaded and doth vouch any rols or records to warrant the same and at the day giuen he faileth of his warrant he shall be adiudged a disseisour without recognizance of the assise and shall restore double dammages of that which shall be found and for his falshood shall be one yeare imprysoned And fourthly a man in diuers cases shall bee imprysoned for his stubbornesse wilfulnesse disobedience and contempt to subiugate and submit himselfe to the censure and iudgement of the Law and to performe accomplish that which the law doth expect at the hands of him and all others being in his case As if a Quid iuris clamat or Per quae seruitia be brought against a man Imp. for not atturning who doth appeare in Court and will not atturne to the plaintife nor plead in barre he shall be imprisoned for his stubbornes And if the tenant that ought to do homage or fealtie to his Lord Imprisonmēt for not doing his true seruice do appeare in Court and will not do such of the said seruices as be claimed of him neither plead in barre thereof Fitz. Per q̄ seruitia 23. he shall be imprisoned vntill he will do his foresaid seruices for his wilfull contempt of the law and disobedience to justice And if a writ of Estrepement be directed to the Shirife to prohibit him to commit wast in lands against whom a reall action Co. Lib. 5. 105. or action of Wast is depending for or touching the same lands the Shirife by force of the same writ may resist him who would do wast And if he cannot otherwise redresse the offence he may impryson him if néed be he may take the power of the Countie to assist him for this disobeying of the Kings writ and resistance of the Shirife is a wilfull frowardnesse and contempt of the law in the offendor and therefore he deserueth to tast the smart of the Law by imprisonment for his contumacy And in like sort by the statute of An̄ 27. Stat. 27. H. 8. 20. Stat. 32. H. 8. 7. H. 8. An̄ 32. H. 8. it was ordeined That if any person after sentence difinitiue giuen against him by the Ordinarie his Commissarie or other competent minister or lawfull Iudge do obstinatly refuse to pay his Tythes or duties or such summes of money adiudged wherein he is condemned for the same Then two Iustices of the peace of the same Shire whereof one to be of the Quorum shall haue authoritie vpon information Imp. for obstinate refusing to performe the Ordinaries sentence certificat or complaint made in writing by the ecclesiasticall Iudge that gaue the same sentence to cause the same person so refusing to be attached and committed to the next Gaole and there to remaine without bayle or mainprise vntill he hath found sufficient suerties to be bound by Recognizance or otherwise before the same Iustices to the vse of the King to performe the said sentence In the same maner may any one of the Kings Councell or two Iustices of peace vpon an Information or request made to them by the Ordinary St. 27. H. 8. 20. commit any offendor to ward for any contempt contumacie disobedience or any other misdemeanour of his in any suit for subtraction of Tythes offerings and other duties of the Church vntill he hath found suerties c. vt gladius gladium iuuet What is Matheining 58 Maiheming is an other gréeuance in the Realme and a speciall cause to disturbe the peace And that is when one member of the Common weale shall take from an other member of the same a naturall member of his bodie or the vse and benefit thereof and thereby disable him to serue the common weale by his weapons in the time of warre or by his labour in the time of peace and also diminisheth the strength of his body and weaken him thereby to get his owne lyuing and by that meanes the common weale is in a sort depriued of the vse of one of her members How many sorts there be of maiheming 59 This maiheming is a dismembring of a man or taking away some member or part of his body or the vse thereof As when a wound blow or hurt is giuen or done by one person or more to an other person whereby he is the lesse able to defend himselfe in the time of warre or to get his lyuing in time of peace And therefore if a man do put out the eye or cut off the hand or foote or any ioynt of the hand or foote of an other it is a Maihem though it be done by chaunce medley Sta. 5. H. 4. 5 But if one man of malice pretended do cut out the tongue or put out the eyes of any of the Kings subiects it is Felonie And if one man do crush the mouth or head of an other or break out his fore-téeth it is a maihem for with them he may defend him selfe in battaile but to breake his hinder téeth or to cut off his Nose Fitz. Corone 458. or Eares whereby he loseth his hearing is no maihem but a deformitie or blemish of his bodie and no weakning of his strength It is a Maihem to pull any boane out of a mans head or to cut off any finger of a mans hand 28. Ed. 3 94. Lib. in t fol. 45. or to breake any of them so that they become shronke vp or dried vp or dead or crooked Gelding of a man is also a maihem though it be in a secret place yet it maketh him more féeble and vnable to defend himselfe in in bataile or to worke for his liuing If by any wound receiued the sinewes or vaines of a man be shronke vp it is a maihem To cut off the chéeke or iawbone of any person Lib. intur fol. 45. or so to crush or breake any of them that the same person is the lesse able to take his meate or drinke is a maihem If one person or more doe take an other person by force and put him in the stocks or otherwise bind him fast and after poure so much skalding what oyle and vinegar or hoat melted lead or other skalding licor vpon any part of his body and so continue it vntill it doth wast and consume the flesh of the same part and drie vp and mortifie the veynes and sinewes of the same parte it is a maihem If A. do strike at B. and the weapon wherwith he striketh breaking or falling out of his hand by the force of the blow doth put
other case the partie yet the King can in neither of the said cases releas it vntill it be forfeited for the mischiefe that may come to A. thereby though the Recognizance be taken domino Regi for that it is not a debt vnto him vntill it be forfeited But being forfeited then the King and none other may releas pardon the forfeiture And in the cases aforesaid though the Iust of peace or the party may releas the suertie of the peace Buck. The Iustices release of the peace yet the Recognizance before taken for the suertie of the peace must not be cancelled least the peace was broken before the releas made so the Recognizance was forfeited And the forme of the Iustice of peace releas of the peace is this Ego p̄fatus Paulus Risley armiger vnus Iusticiariorū dn̄i Regis nunc ad pacem in Com̄p̄dictur conseruādam assignatur qui S. T. de Preston ad securitatē pacis inueniendam mea discretione compuli eandem securitatem pacis quantū in me est in mea discretione 10. die Maij An̄ 5. Reg. Iac. c. remisi relaxaui Dat' apud Chetwood c. And the forme of the release of the party before the same Iustice that tooke the Recognizance of the peace is this Memorandum quod 10. die Iulij Anno 5. The parties release of the peace Regis Iacobi c. A. B. venit coram me Francisco Cheney Milite vno Iusticiariorum dom̄ Regis nunc ad pacem c. gratis remisit relaxauit quantum in se est praedictam securitatem pacis per ipsum versus supranominatum S. T. petitam In cuius rei testimonium ego p̄fatus F. C. c. Datur apud Chessam Bois c. And in like sort the Iustice or Iustices of peace may doe which tooke suretie for the good abearing if they sée cause 83 The peace or good abearing is broken Causes of the breach of the peace or good abearing the Recognisance taken for the kéeping of the same is forfeited by violent extreame malicious and vnlawfull menacings assaults affrayes batteries strikings or imprisonments as if a man bound to the Peace doe wrongfully and malitiously menace assault beat or imprison another or doe forcibly thrust him into a riuer well or pond whereby he is in danger of drowning or doe rauish a woman against her will or doe commit manslaughter burglarie or robberie or treason against the person of the King Br. peace 20 And if a man be bound to the peace after he doth procure another to breake the peace this is a cause of forfeiture of his recognizance taken for the surety of the peace for that the peace is broken by his meanes 18. Ed. 4. 28. And if one be bound to the peace after doe menace I. S. to his face in his presence to kill or beate him this is a breach of the peace But if I. S. be absent when he is menaced then is it no breach of the peace vnles the same partie doe according to his menace lie in waight to kill or beate I. S. for then also it is a breach of the peace 22. Ed. 4. 35. And though the suertie of the peace be not broken without fighting 2. H. 7. 2. beating imprisoning or extremity of menacing yet the suertie of good abearing may be forfeited by the extraordinary number of people 10. H. 7. 12. that the partie bound hath attending vpon him or by his wearing of harneis or other weapons more then before he hath vsually done or be méete for his degrée or estate or by vsing of rigorous or terrible words or threatenings tending or inciting to the breach of the peace or indemeaning himselfe in his behauiour company or gesture or doing of any thing which shall tend to the breach of the peace or to put the people in dread or feare 84 As the wisdome of the Realme hath ordained Iustices of peace to be preseruors of the peace and men wholy or specially deuoted assigned to that office So hath she made choice of other magistrates who with their other offices haue the conseruation of the peace annexed to their charges as a thing incident or inseperable from their other functions and goe continually lincked arme in arme with them As euery Shirife in his County euery Coroner The Shirife Constable c. conseruators of the peace high constable of any lath-rape wapentake hundred or fraunchise and euery petit Constable Borshoulder Tithingman Headborough Boroughhead Thirdborough and chiefe pledge in euery Towne Village hamlet is within his limits and the precincts of his authoritie a conseruator of the peace And so is the Steward in euery Léete and view of franck pledge the Steward of euery Court of Pipowders a conseruator of the peace and if an affray be made in their presence sitting in their Court each of them may commit the offendors to prison And they all are in dutie first to bend their care foresight to preuent the breach of the peace next to imploy both their owne valor and strength to commaund the helpe force of others to pacifie those who by word or déed are in breaking of the peace And thirdly to punish those who haue broken the peace according to the law St. 5. F. 3. 14. And therefore any of the officers aforesaid may take and arrest suspected persons which walke in the night and sléepe in the day and carrie them before a Iustice of peace to finde suerties of their good behauiour Sta. 13. E. 1. And if any be taken by watchmen in the night watch that is suspected of euill behauiour they may take him and imprison him vntill he be deliuered by the ordinarie course of law And if any doe goe or ride armed by day or night in fayers or markets or other places sauing the Kings seruants in his presence or in executing of his precepts or such as doe pursue huy and cry where offences be done any of the same officers may take their armor from them to the Kings vse and commit them to the gaole And if any assemblies Rout or rumor shall be begun St. 17. R 2. 8 the Shirifes and other the Kings officers shall take the power of the County and disperse them and shall commit the offendors to prison vntill they be duely punished according to the law And if any do threaten to kill maihem or beate an other or doe attempt or goe about to doe it then any of the said officers may arrest the offendor to come before a Iustice of peace to finde suertie for the kéeping of the peace or els the same officer may commit him to prison 1. H. 7. 7. And if either of the said officers shal perceiue any other in his presence to be in breaking of the peace eyther dy drawing of their weapons or by assaulting or striking one of an other or by assaulting
Regis nunc ad pacem in Comitatu praedicto conseruandam A precept to the Shirife to returne a Iurie to inquire of a Riot nec non ad diuersas felonias transgressiones et alia malefacta in eodem Comitatu audiendum terminandum assignati vicecomiti Comitur praedicti salutem Ex parte dicti Domini Regis tibi praecipimus firmitèr iniungentes quod non omittas ê“pter aliquam libertatem in Balliua tua quin eam ingrediaris venire facias coram nobis apud Cauluerton in Comitatu praedicto 10. die huius mensis Ianuarij 24. ê“bos legales homines Comitatur praedicti quorum quilibet habeat terras tenementa infra dictuÌ„ Comitatum liberi tenementi per chartam ad valoreÌ„ viginti solidorum aut per Copiam Rotulorum curie ad valorem 26. s. 8. d. aut de vtroque vltra omnes reprisas ad inquirendum pro dicto dnÌ„o Rege de quodam Riotto apud C. in comitatu pÌ„dicto nuper commisso vt dicitur qd'suê‘ quemlibet IuratoruÌ„pÌ„dictoruÌ„ tunc returnes in exitibus xx s. Et hoc nullatenus omittas sub pena xx.li. quam noueris te incursurum si in executione pÌ„missorum tepidus seu remissus fueris Et habeas ibi hoc praeceptum Testibus nobis pÌ„fatis H.L. W. A. quarto die Martij AnÌ„ regni dnÌ„i nostrÌ„ Regis Iacobi dei gratia c. tertio And when the Shirife hath returned his precept at a day and place then two Iustices of peace at the least without the Shirife who is not to sit vpon the Inquisition are to make enquiry by the same Iury returned the forme of which Inquisition is this Buck. Inquisitio pro Domino Rege capta apud Wynslowe in Comitatu praedicto primo die Octobris Anno Regni dicti domini nostri Regis Iacobi c. quinto coram Roberto Dormer milite Anthonio Tiringham milite adtunc Iusticiarijs dicti Domini Regis ad pacem in Comitatu praedicto conseruandam necnon ad diuersas felonias c. assignatis super sacramentum A. B. C. D. E. F. G. c. The forme of an inquisition of a Riot Qui dicunt super sacramentuÌ„ suum quod H. I. K. L. M. N. de Addington in Comitatu praedicto husbandmen c. simul cum alijs malefactoribus pacis dicti Domini Regis perturbatoribus ignotis ad numerum decem personaruÌ„ vi armis modo guerrino arraiati viz. cum gladijs Bacculis Arcubus Sagittis vicesimo die Septembris Anno quinto supradicto inter horas septimam vndecimam ante meridiem eiusdem diei domum mansionalem cuiusdam S. T. de Wynslowe praedictur fregâ—runt intrauerunt in ipsum S. T. adtunc ibidem insultum fecerunt ipsum verberauerunt vulnerauerunt maletractauerunt ita qd ' de vita cius desperabatur in magnam perturbationem pacis dicti domini Regis populi sui terrorem ac contra formam statuti de Riotis Routis illicitis congregationibus in parliamento domini Henrici nuper Regis Angliae quarti Anno regni sui decimo tertio aediti St. 13. H. 4. 7 10 By the foresaid Statute of 13. H. 4. it is moreouer established that if the truth cannot be found in maner aforesaid then within a Moneth next after the same Iustices thrée or two of them and the said Shirife Certifying a Riot or Vndershirife shall certifie before the King and his Councell of the whole fact and the circumstances thereof which certificat shall be of the same force that a presentment by twelue men is Vpon which certificat the said trespassors and offendors shall be put to aunswere and they which shall be found guilty shall be punished by the discretion of the King and his Councell And if the same trespassors and offendors do trauerse the matter so certified Trauerse of a Certificat the same certificat and trauerse shall be sent into the Kings Bench there to be tried and determined according to the order of the Law St. 13. H. 4. 7 11 The same Statute of 13. H. 4. hath also prouided that if the said trespassors and offendors do not come before the King and his Councell Proces against offendors or into the Kings Bench at the first precept then an other precept shall be deliuered to the Shirife of the Shire to take the said trespassors and offendors if they may be found and to bring them at a certaine day before the King and his Councell or into the Kings Bench And if they cannot be found the Shirife or Vndershirife shall make proclamation in his full Countie next insuing the said second precept that they shall appeare before the King and his Councell or in the Kings Bench or in the Chauncerie in the time of vacation within thrée wéekes then next following And if the offendors do not appeare as is aforesaid and the proclamation be made and returned they shall be attainted and conuicted of the Riot Assemblie and Rout aforesaid St. 13. H. 4. 7 12 By the said Statute of 13. H. 4. it was lastly enacted The forfeiture of the Iustices which do not inquire of Riots that the Iustices of peace which dwell néerest in euery County where such Riot of people shall be together with the Shirife or Vndershirife of the same Coâ—ntie And also the Iustices of assise for the time that they shall be in their Sessions in case any such Riot assemblie or Rout be made in their presence shall doe execution of this Statute euery one vpon paine of C. li. to be paied to the King as often as they shall be found in default of execution of the same Statute 13 Because it was not prouided by the foresaid Statute of 13. H. 4. A commission to inquire of the Iustices c. default that the partie grieued should haue any other remedie if default should be in the said Iustices Shirife or Vndershirife where such Riot assemblie or rout should be made nor at whose costes the same riot should be repressed neither was it limitted what punishment the parties attainted of such Riots should suffer St. 2. H. 5. 8. Therefore by an other Statute made Anno 2. H. 5. it was established That if default be found in the said two Iustices of peace or Iustices of Assise and the Shirife or Vndershirife of the Countie where such Riot assemblie or rout shall be made touching the execution that they ought to make by vertue of the said statute of 13. H. 4. and whereof the said Statute maketh mention Then at the instance of the partie grieued the kings commission shall be awarded vnder the great Seale to inquire aswell of the truth of the case and of the originall matter for the partie complaynant as of the default or defaults of the said Iustices Shirife or Vndershirife in this behalfe supposed to be directed to sufficient and indifferent
women whereof the said Iustices and Shirife may take so many to assist them as they shall thinke good to arrest the offendors and to cary them to the Gaole And if the Iustices of peace be informed of a Riot committed at such a place and they go with the power of the Countie to suppresse it and finde no Riot there yet they are not to be blamed or fined for the leuying of the power of the Countie St. 13. H. 4. 7 27 By the said Statute of 13. H. 4. the Iustices of peace The Iustices record of a Riot Shirife or vndershirife haue power to record that which they shall finde done in their presence against the law and the trespassors and offendors shall be conuict by the Record of the same Iustices which recording must either be grounded vpon a thing done in their owne presence or else by inquirie vpon the oath of other men And therefore if two Iustices of peace assisted with the Shirife or vnder Shirife doe sée a Riot they may commaund the Riotors to be arrested then record the Riot without other inquirie But it is otherwise if they do not sée it for then they must first inquire of it by a Iury and after the same being found by inquisition they must make a record thereof which record that the said Iustices doe make must be in writing and is to remaine with one of them And they and none other of the Iustices ought to commit the Riotors to prison and to assesse their fines and to cause the same to be estreated into the Exchequer And if the Iustices do record a Riot of their owne fight the parties charged therewith shall neuer be allowed to trauerse it No trauerse to the record of a riot made of the Iustices own sight though indéed there was neuer any such Riot for their sight of the Riot being Iudges of record maketh that record in the iudgement of the law as strong and effectuall as if the supposed offendors had confessed the Riot befere them and touching the restrayning of trauerse more effectuall then if the Riot had béen found by a Iury vpon the euidence of others And if the Iustices of peace doe sée the Riot committed they may record the riot though the Riotors doe escape for that the fact is done in their presence which is the ground of their record And if the same Riotors doe escape from the Iustices at that time they cannot apprehend them at an other time for the apprehension and punishment of them must be whilest the Riot is committing or presently after and as it were whilest the blood is hot Neither in that case if the Riotors doe escape the Iustices can make any proces vpon their record neither ought it to be kept amongst the records of the peace but must be sent into the Kings Bench that proces may there be made vpon it And in that case 36. H. 6. 25. the offendors are not to be admitted to their trauerse but are of necessity to make fine for it If two Iustices of peace or more and the Shirife or vnderrshirife doe méet at a place appointed about the Kings seruice the affaires of the country or their owne priuate busines and any others to the number of thrée or aboue will make an assault in Riotous manner vpon them or any of them or vpon any other in their presence The credit of the Iustices record of a Riot they may arrest the offendors commit them to prison and record the Riot aswell as if they had come of purpose to sée and arrest Riotors but if they which doe begin a Riot doe flie into an other Countie before they doe commit the Riot then the Iustices must not meddle with them And this recording of a Riot by the Iustices of peace the Shirife or vndershirife is of that credit in the iudgement of the Law That if a man be bound by Recognizance to kéepe the peace and after such a record of being partie to the committing of a Riot is entred against him in a Scire facias awarded against him vpon his Recognizance he shall not be allowed either to iustifie the fact nor plead not guiltie thereunto 28 Whereas the said Statute of 13. H. 4. hath ordeined Stt. 3. H. 4. 7 that if the truth cannot be found then within a Moneth next after the same Iustices thrée or two of them shall certifie before the King and his Councel the whole fact and the circumstances thereof which words viz. the same haue relation to the Iustices of the Shire So that if two Iustices of the Shire and the Shirife or c. go to sée the Riot any other two Iustices may make inquirie of it and then they together or the first two or the last two may make certificat thereof Certificat of a Riot within a moneth after that inquisition taken But if the inquiry be made within a moneth after the Riot or c. committed and the certificat not made within a moneth after that then is not the certificat good nor according to the said Statute And yet if the Iustices do make an inquirie within a moneth after the Riot committed and then do giue day to the Iury to deliuer their verdict after the moneth expyred that is a good inquisition and according to the Statut for by that day giuen the Iury may enquire further and receiue more euidence to informe them of the truth of the matter If an enquest doe finde that a Riot was committed by x. persons and the Iustices doe certifie that it was committed by xx persons then the certificat and not the inquisition shall be taken for by that certificat of the Iustices it appeareth that the truth was not found by the inquisition And so it is if the inquisition be of x. persons and the certificat be of x. persons in harneis And likewise if the indictment be of a riotous assault only and the certificat bee of a riotous assault battery maiheming for though in the cases aforesaid the enquest haue found a truth yet they haue not foūd the whole truth neither that which is most for the Kings aduantage nor fully performed the meaning of the said statute but if the indictment and the Iustices certificat do vary in the day of the committing of the riot then the indictment shall be preferred before the certificat for the day doth alter nothing to qualifie or aggrauat the offence And yet séeing the said certificat is but only in the nature of a declaration to cause the parties accused to mak◠answer thereunto the same certificat ought to comprehend the certaine yeare and day though not the addition of the parties being not within the words of the statute of Additions made An̄ 1. H. 5. 5. St. 13. H. 4. 7. 29 And though the said Statute of 13. H. 4. The proces against riotors doth only make mention of a Capias yet it séemeth by the words
of the same that first there ought to be awarded a Venire facias against the offendors and if they do not appeare then a Capias for the words of the Statute be if they do not come before the King and his councel or into the Kings Bench at the first precept then another precept shal be deliuered to the Sherife to take the said offendors c. And this proces must be returned before the Kings councell or in the Kings Bench but if there be awarded against the offendors a Subpena or a priuie seale it shall be void St. 13. H. 4. 7 30 Notwithstanding the said Statute of 13. H. 4. The penaltie of C. l. for not executing this Statute hath inflicted a penalty of C. l. vpon the next Iustices of the county where such riot shal be committed if the execution of that Statute be not done yet if other Iustices of the same county do performe that office then the next Iustices shall be excused and the same penaltie shall be saued for the Statute doth wholy or chiefly respect that the offendors shal be arrested or disturbed their offences inquired of recorded and punished and by that meanes the peace preserued for all the Iustices of peace within the commission how farre off soeuer they dwel so that they dwel within the said countie if they haue notice of such a riot rout or vnlawfull assemblie ought to enquire of it to record it and to suppresse it or otherwise they may be fined by the Lords in the Star chamber though the penaltie of one C. l. shal be inflicted onely vpon the two next Iustices for that they are intended most likely and soonest to haue knowledge of it But if the Sherife or Vndersherife should not come to the Iustices béeing sent for to assist the same Iustices and to further the repressing of that riot and the performance of that seruice then all the said Iustices dwelling néere or remote shal be excused of the same penaltie of C. l. or any other for the said statute doth giue him equal authoritie and as it were ioyne him in commission in the copulatiue with them St. 13. H 4. 7. 31 It appeareth by the said stat of 13. H. 4. Trauerse to an Inditement of Riot that if the offendors trespassors do trauerse the matter certified by the Iustices of peace to the King his councell the same certificat and trauerse shal be sent into the K. Bench and there be tried determined according to the law And in like sort if the trespassors offendors do trauerse the matter found by Inquisition before the Iu. of peace in the countie the same Inquisition shal be sent to the Iustices of peace at the next Quarter Sessions of the same countie city borough or towne corporat hauing Iustices of Peace within themselues there the trauerse shal be tried and determined according to the Law the forme of which trauerse taken in a towne corporat is this Alià s scilicet ad Sessionem pacis tentam apud Buckingham in comitatu praedicto die Lune proximo post festum Sancte Trinitatur Anno regni dnÌ„i nrÌ„i Regis Iacobi dei gratur Angliae c. secundo coram Iohanne Nichols generoso Balliuo Burgi parochiae de Buckingham praedicta Francisco Fortescue milite Thoma Denton milite Richardo Ingolsbie milite Willihelmo Androwes milite Roberto Iohnson milite Paulo Risley armigero A trauerse to an InditemeÌ„t of riot Simone Lambard generoso alijs socijs suis Iusticiarijs dicti domini Regis ad pacem in dicto Burgo parochia conseruandam necnon ad diuersas felonias transgressiones alia malefacta in eisdem Burgo parochia perpetrata audienda terminanda assignatis per sacramÌ„ duodecem Iuratorum extitit presentatum Quod A.B.C.D.E.F. de Galcot cum diuersis alijs malefactoribus pacis dicti Domini Regis perturbatoribus modo guerrino arraiati vniti assemblati vicesimo die Maij hora quarta post meridiem eiusdem diei Anno eiusdem domini Regis nunc secundo vi armis viz. baculis gladijs pugionibus falcastris alijs armis tam inuasiuis quam defensiuis apud Prebend-end in Buckingham praedicta clausum cuiusdam L. M. vocatum Bone-hill close illicitè riotosè routosé fregerunt intrauerunt decem carractatas seni ad valenc ' quatuor librarum de bonis catallis dicti L. M. adtunc ibidem iniuste illicite ceperunt asportauerunt contra pacem dicti domini Regis contra formam statuti inde editi prouisi Per quod praeceptum fuit Iohanni Crooke subballiuo quod non omitteret propter aliquam libertatem c. quin venire faceret eosdem A.B.C.D.E.F. ad respondeÌ„dum c. Posteaque scilicet die Lune proximo post festum sancti Michaelis Archang ' anno regni domini Regis nrÌ„i Iacobi secuÌ„do coraÌ„ praefatis Iusticiarijs veneruÌ„t pÌ„dicti A.B.C.D.E.F. in proprijs personis suis habito auditu Indictamenti pÌ„dicti seperatim dicunt quod ipsi non sunt inde culpabiles Et de hoc ponunt se super patriam Et H. I. qui pro domino Rege in hac parte sequitur similiter Ideo veniunt inde Iuratur coram Iusticiarijs dicti dnÌ„i Regis ad pacem in Burgo parochia pÌ„d conseruandam assignatis c. ad Sessionem pacis apud Buck. pÌ„d die Lune proximo post Epiphaniam dnÌ„i tunc proximo futuro teneÌ„dam Et qui c. Ad recog c. Quia tam c. Idem dies datus est tam praefato H. I. qui sequitur ê“ DnÌ„o Rege quam pÌ„fatur A.B.C.D.E.F. Ad quas quidem Sessiones pacis tentas apud Buck. pÌ„d in comÌ„ pÌ„d dicto die Lune proximo post festum Epiphaniae domini Anno regni dicti Regis dnÌ„i nostri Iacobi tertio coram dicto Balliuo dictis F.F.T.D.R.I. socijs suis Iusticiarijs dicti DnÌ„i Regis ad pacem in dict' Burgo parochia conseruandam necnon ad diuersas felonias transgressiones alia malefacta in eodem Burgo parochia perpetrata audienda terminanda assignatis venerunt tam pÌ„fatus H.I. qui pro dnÌ„o Rege in hac parte sequitur quam pÌ„fatur A.B.C.D.E.F. in proprijs personis suis Et Iuratores ê‘ subballiutim Burgi parochie pÌ„d ad hoc impannellatur exacti viz. E.F. Mercer O.P. Draper c. similiter venerunt qui ad veritatur de pÌ„missis dicendam triati iurati dicunt super sacrum suum quod pÌ„d A.B.C.D.E.F. culpabiles sunt eoruÌ„ quilibet culpabilis est de transgressione contemptu riotto pÌ„d in Indictamento pÌ„d superius specificatis modo forma prout superius versus eos supponitur Ideo coÌ„cessuÌ„ est ê‘ curÌ„ ê™ pÌ„d A.B.C.D.E.F. capiantur ad satisfaciendum dicto domino Regi de finibus suis occasione transgressionis contemptus riotti
the land be seuerall yet their possession touching the profit thereof is ioynt And this Action is founded vpon the possession And whereas both the Statute of 1. H. 5. and 5. Eliz. doe ordaine that the partie and parties grieued shall and may at his and their pleasure haue and sue this Action of forger of false déedes in this case both the Ioyntenants and tenants in common be the parties grieued for that their land is molested troubled recouered or charged by this forged déed Fitzh Forger 5. But if there be two Ioyntenants or tenants in common of certaine land and one of them doth forge a false Release or other Déede whereby the whole land is intended to be conueied to himselfe in this case the other Ioyntenant or c. may haue an Action of forger of false déeds against his said ioyntenant or c. for that forged and false déede was made to the intent that the right or title of the forgers companion in estate should be molested troubled defeated or recouered And in this case he is the partie grieued to whose onely disherison the said forgery doth trench 21. H. 6. 4. 21 In an Action of forger of false déedes One sealeth a déed by an others commandement the Defendant pleaded that the Plaintife being seised of certaine land did couenant with a stranger to enfeoffe him of the same land whereupon the same stranger came to the defendant being a Clerk and requested him to make a déed of feoffment of the same land which he did and after by the plaintifes commaundement he sealed the same déede and after did reade the déede at the time of the liuerie and seisin which is the same forgerie and proclamation and that was adiudged a good Plea for when the defendant sealed the feoffement by the plaintifes commaundement and in his presence it was the plaintifes owne act and déede and his owne sealing and not the defendants for the plaintife did vse the defendants hand but as his instrument therein as men vnlearned doe vse an other mans hand to helpe or direct them to subscribe their names to a Deede 9. H. 6. 26. 7. H. 6. 34. 22 If the father do forge a déede and after dieth One forgeth and another doth publish and then his sonne doth find the same déede and doth pronounce publish or shew forth in euidence the same déede knowing the same to be false and forged to the intent the estate of fréehold or inheritance of any person of in or to any lands c. should be molested troubled defeated or recouered this is forgerie in the sonne and he shall be punished according to the foresaid Stat. of 5. El. And the same law is if one man do forge a déed or c. and an other man knowing thereof shall publish it to any of the intents aforesaid this is forgerie prohibited by the same statute for the same stat of 5. Eliz. is in the disiunctiue viz. if any person shall forge or publish Forgerie by antedating of a deed 23 If a man doe make a feoffement to one person of certaine land 27. H. 6. 3. and doth deliuer possession therof accordingly and after he doth make a feoffement to another person of the same land bearing date before the first feoffement but doth not deliuer it this last feoffement is not the feoffors déed But yet if hée do publish it to be his déed the first feoffée may haue an action of forger of false déeds against him for when he had made the first feoffement of the land hée then had nothing left in him of the same land And therefore when hée made the second antedated déed of that land it was a false and forged déed and then after publishing pronouncing or shewing it forth to be his déed it was with intent to molest trouble defeat recouer or charge the land of the first and lawfull feoffée and so he is punishable according to the foresaid stat of 5. El. as hée was before by the stat of 1. H. 5. 24 Though the foresaid two statutes of 1. H. 5. and 5. Eliz. were ordained to punish those who should forge any false déed or c. to the intent to molest trouble charge or recouer the right or title of any person in his lands tenements or hereditaments or to the intent that any person should claime any lease for yeares or annuitie or should forge any Obligation Bill obligatorie Release Acquitance or other discharge of any debt account action suit demaund or other thing personall yet was there no prouision in either of them to punish those who should get into their hands any money goods cattels iewels or things of any other persons by colour of a false token or forged or counterfeit letter for the redresse whereof by a statute made anno 33. H. 8. St. 33. H. 8. 1 it was enacted That if any person or persons of what estate or degrée soeuer hee or they be Getting of other mens goods by counterfeit tokens or letters shall falsely and deceitfully obtaine or get into his or their hands or possession any money goods cattels iewels or other things of any other person or persons by colour or means of any false tokē or counterfeit letter made in another mans name that then euerie such person persons so offending being thereof lawfully conuict by witnesses taken before the L. Chauncelor of England for the time being or by examination of witnesses or confession taken in the Star chamber before the K. honorable Counsel or before the Iust of Assise in their circuits for the time being or before the Iust of peace within any part of the K. dominions in their generall Sessions or by action in any of the K. courts of record shal haue suffer such correction punishment by imprisonment of his body setting vpō the pillorie or otherwise by any corporal pain except pain of death as shal be vnto him or them limited adiudged or appointed by the person and persons before whom he shal be so conuicted of the said offences or any of them Suspected persons called before the Iustices 25 As wel the Iust of Assise for the time being as also ij St. 33. H. 8. 1 Iust of peace in euerie countie whereof one to be of the Quorū shal haue power authoritie to call and conuent by proces otherwise to the said Assises or generall sessions any person or persons being suspected of any of the aforesaid offences to cōmit him or thē toward or to let him or thē to baile vntil the next Assises or general sessiōs there to be examined and further to be ordered by their discretions as is abouesayd Prouided alwayes that the Iustices of peace within euerie Citie Borough Towne and Franchise within this Realme or other the kings dominions shall haue like iurisdiction power and authoritie at their generall Sessions and otherwise to do and execute all and euerie
The penaltie for committing of wilfull periurie vnlawfull procurement sinister perswasion or meanes of any others or by their owne Act Consent or Agreement shall wilfully and corruptly commit any manner of wilfull periurie by his or their deposition in any of the Courts before mentioned or béeing examined ad perpetuam rei memoriam Then euerie person or persons offending shall for his or their said offence loose and forfeit twentie pounds to the King and the partie grieued hindered or molested by reason of any of the offences before mentioned that will sue for the same by A. B. P. or I. in any of the Kings courts of Record wherein no W. E. P. or I. shall be allowed and shall haue sixe months imprisonment without Baile or Maineprise And the oath of such person or persons so offending from thenceforth shall not bee receiued in any court of Record within England or Wales or the Marches of the same vntill such time as the iudgement giuen against the said person or persons shall be reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued to recouer his or their dammages against such person and persons as did procure the said iudgement so reuersed to be giuen against thē by action to be sued vpon his case And if the said offendor haue not any goods or cattels to the value of xx l. then he shall be set on the Pillorie in some market place within the shire citie or borough where the said offence shall be committed by the Sherife or his ministers if it be without any citie or towne corporat and if it be within any citie or towne corporat then by the head officer or officers of the same citie or c. or by his or their ministers there shall haue both his eares nailed and from thenceforth be discredited disabled for euer to be sworne in any of the courts of Record aforesaid vntill the iudgement shall be reuersed and thereupon shall recouer his dammages in manner and forme before mentioned In what courts Periurie shall be punished 23 As well the Iudge and Iudges of euery such of the said courts where any such suit is or shall be Sta. 5. El. 9. and whereupon any such periurie is or shal happen to be committed as also the Iustices of Assise and gaole deliuery in their seuerall circuits and the Iustices of the peace in euery countie within this realm or in Wales at their Quarter Sessions both within liberties and without shall haue authoritie by vertue hereof to enquire of all and euery the defaults and offences committed contrarie to this act by inquisition presentment bill or information before them exhibited or otherwise lawfully to heare and determine the same and thereupon to giue iudgement award processe and execution of the same according to the course of the lawes of this Realme Proclamatiō of this Statute 24 The Iustices of Assise of euery circuit within this Realme shal in euery countie within their circuits two times in the yeare St. 5. El. 9. viz. in the time of their sittings make open Proclamation of this Statute or of the effect thereof to the intent that no person shal be ignorant of the penalties herein contained Periurie punished in the spirituall court 25 Prouided that this Act or any thing therein contained St. 5. El. 9. shall not extend to any spirituall or Ecclesiasticall court within this Realme of England or Wales or the Marches of the same but all and euery such offendor and offendors as shall offend in forme aforesaid shall and may be punished by such vsuall and ordinarie lawes as heretofore hath bin and yet be vsed in the said Ecclesiasticall court any thing in this Act c. notwithstanding Periury punishable in the Starchāber 26 Prouided that this Act shall not extend to restraine the power or authoritie giuen by Act of Parliament made An̄ 11. H. 7. Sta. 5. El. 9. St. 11. H. 7. 25. to the Lord Chauncelor and others of the Kings Councel to examine and punish riots routs hainous Periuries and other offences which haue vsed to heare and determine such matters in the Starre-chamber at Westminster nor to restraine the power of the Lord President and Councell in the Marches of Wales or in the North nor of any other Iudge hauing absolute authoritie to punish Periurie before the making of this Statute But But they and euery of them shall procéede in the punishment of all offences heretofore punishable in such wise as they might haue done and vsed to do before the making of this Act to all purposes so that they set not vpon the offendors lesse punishment then is contained in this Act. 27 Because by the said statute of 5. Eliz. 9. there is no Ordinance made for the punishment of those Bankrupts who being sworne and examined vpon Interrogatories by Commissioners thereunto authorized shall commit Periurie Nor for the punishment of those witnesses who either by the procurement of others or by their owne consent shall commit Periurie being examined by the said Commissioners touching Bankrupts goods or debts Therefore by a statute made Anno 1. St. 1. Iac. 15. Iac. it was ordained That it shall be lawfull for the Commissioners authorized vnder the great Seale of England or the greatest part of them to take order with Bankrupts bodies lands tenemēts and hereditaments money goods cattels wares and debts to examine the said offendor or offendors vpon such interrogatories touching the lands tenements goods cattels and debts bils bonds bookes of accompt and such other things as may tend to disclose his her or their estate or the secret graunts cōueyances and eloigning of his her or their landes tenements goods money and debts as they shall thinke méet And if therein the offendor or offendors shall refuse to be examined or to answer fully to euery interrogatorie to him to be ministred by the said Commissioners or the greater part of them it shall be lawfull for the said Commissioners or the greater part of them to commit the said offendor or offendors to some strait or close imprisonment there to remaine vntill he she or they shall better conforme him or her selfe And if vpon his her or their examination it shal appeare that he she or they haue committed any wilfull or corrupt Periurie tending to the hurt or dammage of the creditors of the said Bankrupt Periury punished in Bankrupts to the value of tenne pounds of lawfull money of England or aboue the party so offending shall or may thereof be indited in any of the Kings Courts of Record and being lawfully conuicted therof shall stand vpon the Pillory in some publike place by the space of ij houres and haue one of his eares nailed to the Pillory and cut off And by the same statute of Anno 1. Iac. it is further established That if any person or persons other then the Bankrupt either by subornation vnlawfull procuremēt sinister persuasion
of their office or occupation Nor to any Liueries or Badges giuen in the defence of the King and his Realme Nor to the Constable or Marshal for giuing any Badge Liuerie or token for any feats of armes to bee done within this Realme Nor of any Wardens of the Marches toward Scotland for any Badge Liuerie or token by thē giuen frō Trent Northward at such time onely as shall be necessarie to leuie people for the defence of the Marches St. 7. H. 4. 14 And by the stat of anno 7. H. 4. it was ordained That no congregation or companie shall make any Liuerie of cloth or of hats at their owne costs vpon paine that euerie of the same congregation or companie shall forfeit fortie shillings except Guilds and Fraternities and also people of Artes and Sciences within Cities and Boroughes which be ordained to a good intent 13 As the wisedome of the Realme hath established from one age to another the foresaid lawes and statutes Publishing inquiring of and punishing of maintenāce for the repressing or snibbing of Champertie Embracerie buying of titles and all other sorts of Maintenance so hath she prouided trumpets to sound out and publish those laws into the ears and sinke them into the hearts of all people and secondly shee hath assigned watchmen and sentinels to sée who infringed those lawes and lastly she hath ordained Censors and Iudges to punish the offendors therein as it appeareth by the before specified statute of anno 32. St. 32 H. 8. 9 H. 8. wherby it is enacted That the Iustices of Assise shall in euerie Countie within their circuits two times in the yeare viz. in the time of their sittings for taking of Assises or deliuerie of the Gaoles cause open proclamation to be made as well of the said statute and euerie thing therin contained as also of all other statutes heretofore made against vnlawfull maintenance champertie embracerie or vnlawfull retayners to the intent that no person hearing the same should be ignorant or misconisant of the dammages and penalties therein contained And by the former rehearsed statute of anno 8. St. 8. Ed. 4. 2 E. 4. it is ordained That euerie person which will sue against any other for any offence committed contrarie to that statute or any other of the premisses viz. any other ordinance or statute before that time made against any persons for giuing or receiuing of Liueries or Badges before the Kings Iustices in his Bench before the Iustices of the Common Pleas Iustices of peace in their Sessions Iustices of Oier and Terminer and Gaole deliuerie Iustices of the countie Palantine of Lancaster and Chester and in the Court of Hexamshire and in the Court of the Bishop of Durham in the Countie Palatine of Durham shall be admitted thereunto by the discretion of the said Iudges to giue information for the king of any of the premisses committed within the iurisdiction of the same Courts And euerie Informer shall be admitted to sue for the King and himselfe action or actions vpon the same by information in any of the said Courts against as many such offendors in one Bill of Information as liketh him which Information shall be in stead of a Bill or originall writ wherein such Proces shall bee awarded as in an originall writ of Trespasse but that in the Counties Palantine of Lancaster and Chester nor in Duresme no Exigent shall be awarded vpon any information suit or proces to be made by force of this ordinance And if any be or any Outlawrie thereupon pronounced the same shal be void without any writ of Error And if any of the offendors be present in any of the said courts any of the Iustices may cōmaund him to be brought to answer to such bill vpon such information by an othe first to be taken vpon a booke by such informer before some one of the Iudges that his complaint is true without any other or further proces therein And euerie of the same Iudges within his iurisdiction may by his discretion examine euerie of the defendants vpon such information and iudge him conuict as well by examination as by triall and the King shal haue the one halfe of the forfeiture if it be not in a citie or towne corporat that hath the same by the grant of the king or c. and the informer the other halfe which also shall recouer his costs by the Iudges discretion and execution thereof as in recoueries vpon debt or trespas wherin no Essoine or Protection shall lye And the Maior Sherife Bailife or other chiefe officer of euerie citie borough towne or port within this realm hauing power to heare and determine personall pleas in the court holden before them or any of them within any such towne haue authoritie to receiue information of any person which offends in the premisses and to heare determine as wel by examination as by triall all things done concerning the same by or to the inhabitants within the iurisdictiō of the same court to put this stat for those offences prouided in execution And the King shal haue the one moitie of all penalties forfeited by the said stat and the Informer chiefe officers of such citie borough c. shall haue the other moitie equally to be diuided betwixt them And the said chiefe officers part shal be imployed to the vse the said citie borough towne or port c. And sithence the foresaid lawes statutes by one other stat ordayned an 33. Iust of peace may inquire of and punish maintenance H. 8. and confirmed an 37. H. 8. it was enacted St. 33. H. 8. 10. 37. H. 8. 7. That Iust of peace at their Quarter Sessions shal haue authoritie to inquire as wel by the othes of xij men as by information giuen to them by any person or persons of defaults contempts offences cōmitted against the lawes statutes made and prouided concerning or in any wise touching retainers giuing of liueries signs tokens or badges maintenance embracerie c. and euery of them to heare determine the said defaults offences c. And vpon any information touching the penalties or any of them to make proces by Venire fac ' one Capias an Exigēt vnder their seals against euery such person persons against whom such information or presentment shal be had for their apparance before them in their Sessions to answer to such information or presentment as shall be there made And if the person or persons so accused by information or presentment shal be conuicted vpon such information or c. by confession or verdit of xx men then the said Iust haue power to giue iudgemēt against euery such offendor so conuicted of imprisonment forfeiture of money or both of them as are limited by the said seuerall statutes for such offences whereof they are conuict and to cause execution therof to be made accordingly Why the pursuing of maintenance is left out
prices or the buying of anie dried or salted fish herring or sprats not forestalled and solde for reasonable prices or the buying of any corne fish butter or chéese by any such Badger lader kidder or carier as shall be assigned and allowed to that office or doing by thrée Iustices of Peace of the Countie where the said badger lader kidder or carier shall dwell which shall sell and deliuer in open faire or market or to any other victualler or to any other person or persons for the prouision of his or their house or houses all such corne graine butter and chéese as any such person shall buy or cause to be bought and that within one moneth next after he shall so buy any such corne graine butter or chéese so that the same shall be bought without forestalling or else that any such common prouision made or héereafter to be made without fraud or couin by any person or persons of any of the things abouesaid for any citie borough or towne corporat or for the prouision or victualling of any ship castle or fort within the kings dominions without forestalling which shall be imployed onely to that vse and purpose or the buying and prouision of any of the victualls aboue mentioned necessary for the furniture and prouision of the inhabitants or of the towne of Barwicke Holy Island or the Marches of England against Scotland which without fraud or couin shall be transported and conueied as soone as winde and weather may serue to such of the places aforesaid for the which the same shall be so prouided shall not be in any wise deemed adiudged or taken any offence contrarie to this Act. If any person or persons hauing sufficient corne and graine for the prouision of his or their owne house or houses St. 5. 6. Ed. 6. 14. and sowing of their grounds for one yeare doe buy any corne in any faire or market Buying of corne for the change of seede for the change of his or their séede and do not bring to the same faire or market the same day so much corne as he shall fortune to buy for his seede and sell the same if he can as the price of corne then goeth in the said market or faire then euery such person or persons so buying corne for séede shall forfeit and loose the double valew of the corne so bought If any person or persons shal buy any manner of oxen ronts stieres kine heifers St. 5. 6. Ed. 6. 14. calues shéepe lambs goats or kids liuing Buying and selling of cattell aliue and sell the same againe aliue vnlesse he or they do kéepe and féede the same by the space of fiue wéeks in his or their owne houses ground farme ground or else in such ground or grounds where he or they haue the herbage or common of pasture by graunt or prescription then euery person and persons so buying and selling againe shall loose the double valew of the cattell or things so bought and sold againe The moitie of all which forfeitures afore rehearsed shall be to the King and the other moitie to him or them that will sue in any of the Kings Courts of Record by B.P.A. or I. c. in the which no W.E.P. c. The Iustices of peace in euery County within this Realme or Wales at their quarter Sessions St. 5. 6. Ed. 6. 14. shall haue full power and authoritie by vertue of this Act to inquire heare and determine all and euery the defaults and offences The authoritie of Iustices of peace committed or done contrary to this Act within the County where any such Sessions shall be kept by Inquisition presentment bill or information before them exhibited by examination of two lawfull witnesses or by any of the same waies or meanes by the discretion of the said Iustices and to make processe thereupon as though they were indicted before them by Inquisition or by verdict of twelue men or more and vpon the conuiction of the offendor by information or sute of any other than the King to make extracts of the one moity of the forfeitures to be leuied to the Kings vse as they vse to doe of other fines issues and amerciaments growen in the Sessions of peace and to award execution of the other moity for the complainant or informer against the offendor by Fieri facias or Capias as the Kings Iustices at Westminster may doe and vse to doe And if any such conuiction or attainder shall héereafter happen to be at the Kings sute onely then the whole forfeitures to be extracted and leuied to the Kings vse onely Whatsoeuer person shall at anie time heereafter be punished by vertue of this Act But once punished for one offence for any thing mentioned in this Act then the same person shall not otherwise be vexed troubled sued or put to any paine or punishment for that one thing wherefore hée or they shall haue béene so punished Prouided alwaies St. 5. 6. E. 6. 14. that it shal be lawfull to euery person or persons which shal be assigned and allowed by thrée Iustices of the peace of the county where he shall dwell Transporting allowed by Iustices of peace thereunto to buy otherwise than by forestalling corne graine or cattell to be transported or carried by water from any port or place within the said Realme or Wales vnto any other port or place within the saide Realme or Dominions if he or they shall without fraud or couin shippe or imbarke the same within fortie dayes next after he or they shall haue bought the same or taken couenant or promise for the buying thereof and with such expedition and diligence as winde and weather shall serue to carrie and transport the same to such port or place as his or their cockets shall declare and there doe dis-barke vnlade and sell the same and doe bring a true certificat thereof from one Iustice of peace of the County or maior or bailife of the towne corporat where the same shall be vnladen and also of the Customer of the port where such vnlading shal be of the place and day where the saide corne or cattell shall be disbarked vnladen and solde to be directed vnto the Customer and Comptroller of the port where the same was imbarked At all times when wheate shall be commonly at the price of sixe shillings eight pence the quarter When corne may be ingrossed or vnder St. 5. 6. E. 6. 14. mault and barley at thrée shillings foure pence the quarter or vnder otes or otes maulted at the price of two shillings the quarter pease or beanes at the price of foure shillings the quarter or vnder and rie or mescelin at the price of fiue shillings the quarter or vnder all which quarters shall be intended to be of London measure then it shall be lawfull to euery person and persons not forestalling to buy ingrosse and keepe in his or their
grainers or houses such corne of the kindes aforesaide as without fraud or couin shal be bought at or vnder the prices before expressed any thing in this Act to the contrary notwithstanding Prouided alwaies that this Act Within what time the sute shal be commenced or any thing therein contained extend not to charge any person or persons for any the offences aboue mentioned vnlesse he or they be sued for the same within two yeares next after such offence done or committed 5. 6. Ed. 6. 14. Prouided alwayes that it shall be lawfull to euery of the kings subiects now dwelling inhabiting Buying and selling of fish neere the sea or that héereafter shal dwel and inhabite within one mile of the maine Sea to buy all manner of fish fresh and salted not forestalling the same to sel the same againe at reasonable prices this Act or any thing therein contained to the contrarie in any wise notwithstanding Prouided also Drouers licenced may buy and sell cattle that it shall be lawfull to all and euery person and persons knowne to be a common Drouer or Drouers being licenced or authorized and allowed in writing by thrée Iustices of peace whereof one to be of the Quorum of the Countie or Counties where the same Drouer or Drouers shall be most abiding and dwelling to buy cattell in such Shires and Counties where Drouers haue béene wont in times past accustomably to buy cattell at their frée liberties and pleasures and to sell the same as is aforesaid at reasonable prices in common faires and markets distant from the place or places where he or they shall buy the same fortie miles at the least so that the same cattell be not bought by the way of forestalling Prouided alwaies that such licence of the Iustices of the Peace shall not endure aboue one yeare The continuance of a licence vnlesse the same be yearely renewed by so many Iustices as is aforesaid St. 5. El. 12. 12 Because since the making of the foresaid Statute of An̄ 5. 6. Ed. 6. diuers persons by their owne sute were licenced to become drouers of cattel badgers laders kidders cariers buiers or transporters of corne graine butter and chéese thereby to liue easily and to leaue their honest labour in husbandry or manuall occupations and also to inhaunce the prices of corne graine and other victualls Oppression by badgers kidders laders cariers by which meanes they oppressed the common-wealth only to procure vnto themselues both wealth and ease for the redresse whereof by a Statute made Anno 5. Eliz. it was enacted That if anie licence shall be made to any badger lader kidder or carier of corne drouer of cattell buyer or transporter of corne and graine butter or chéese otherwise than in the generall and open Quarter Sessions of the peace holden in the shire where the partie admitted doth Obseruations necessarie in all licences and by the space of thrée yeares before the Teste of his Licence hath dwelled Or other than to such person as is or hath béene married is a housholder no houshold seruant or retainer thirtie yéeres of age at the least Or to haue continuance for more than one yéere or which beareth not date the day and place where the Sessions be holden Or is not signed and sealed with the handes and seales of thrée Iustices of peace being present at the same Sessions at the least whereof one to be of the Quorum the same Licence shall be voide And the party which taketh the same shall forfeit fiue pounds And no person shall vpon the paine of the forfeiture of fiue pounds by the authoritie of such Licence buy any corne out of open faire or market to sell the same againe except he be thereunto specially licenced by expresse words in his licence The moitie of which forfeitures shall be to the Q. her heires and successors and the other moitie to him or them that will sue for the same in any of the Q. Courts of Record by B.P.A. or I. wherein no W.E.P. c. But this Act shall not extend to preiudice the liberties of any citie or towne corporat but euery of them may lawfully assigne and licence Purueiors for the prouision of the same citie or towne as they might haue done before Neither shall this Act be preiudiciall to the Inhabitants within the Counties of Westmerland Comberland Lancaster Chester Yorke or any of them but they may doe as they haue vsed to doe And the Iustices of peace in euery Countie within this Realme or Wales shall haue authoritie to inquire heare and determine all offences committed contrary to this statute by inquisition presentment bill or information before them exhibited and by examination of two lawfull witnesses and to make processe thereupon as though they were indited by inquisition or verdict c. Oppression of Printers and Stationers 13 Though by the Statute of Anno 1. R. 3. St. 1. Ri. 3. 9. licence was giuen to aliens and strangers to bring books into this Realme and to sell and retaile them at their liberties for that there were then few Printers or skilfull binders of bookes within this Realme But séeing since there haue béene and are many expert and cunning Printers and skilfull binders of bookes within this Realme who haue wholly addicted themselues to the saide trades and made it their whole or chiefe liuing and therefore to bring into this Realme anie printed bookes bound or for any stranger to bring bookes into this Realme to be by them sold by retaile were a great oppression and preiudice to the Stationers and also the same bookes would be so much the dearer and so hurtfull to others who should buy those of them Therefore by a Statute made Anno 25. Oppression by Printers or Stationers H. 8. it was ordained St. 25. H. 8. 15. That if any person resiant or inhabitant within this realme shal buy to sell againe any printed bookes brought from any parts out of the Kings obedience ready bound in boords leather or parchment hée shall forfeit for euery booke bound out of the Kings obeisance and brought into this Realme and bought by any person within the same to sell againe vj. s̄ viij d to the King and the party that wil seise or sue for the same in any of the Kings courts of Record by B.P.I. c. wherein no W.E.P. c. And if anie person inhabitant or resiant within this realme shall buy within this realme of any stranger borne out of the kings obeisance other than of denizens any printed bookes brought from any parts beyond the sea except only in grosse and not by retaile he shal forfeit for euery booke so bought by retaile vj. s̄ viij d to the King and the party that wil seise or sue for the same in any of the kings courts of Record by B.P. or I. c. wherein no W.E.P. c. The said forfeitures to be
loose forf as one attainted of felony No Clergy St. 28. E. 1. 2 23 By the statute made An. 28. Ed. 1. it was established That if any make purueyance or prizes without warrant Purueiance without warrant and do carry them away against the will of the owner he shal be arrested by the town where the prizes were made and carried to the next Gaole and if he be therof attainted he shal be punished as a felon if the value of the goods do so require St. 25. E. 3. 15 24 By the Statute of Anno 25. Edw. 3. it was ordained That no Purueyor of the kings shall take any more Shéepe Purueying of shéepe before sheare time but so many as may reasonably suffice vntill sheare time and after that time they shall take as many shorne Shéepe and not other as may reasonably suffice for the time to come And if any Taker Purueyor or Buyer take any shéepe with their Wooll betwixt Easter and the Feast of Saint Iohn Baptist praise them at a small price and send them to his house to bee shorne to his owne profite and thereof be attainted at the suit of the king or the party he shal be vsed as a Théefe or a Robber St. 5. Ed. 3. 2. 10. Ed. 3. 1. 25. E. 3. 1. 36. Ed. 3. 2. 25 By the Statutes made Anno 5. Edw. 3. 10. Edw. 3. 25. Ed. 3. 36. Ed. 3. it was enacted That the Corne Cattell other victuall Appraisement of things purueied things which shal be taken for the kings house shal be taken in such place where most plenty is and in conuenient time and no more then is néedfull for that season And if the purueyor or buyer cannot well agrée with the seller for that which hee shall néed then the same shall be praised at the very value by the Constables and foure honest men of the Townes where such taking is thereunto sworne and the praysers shall not be constrained by menace threats duresse or other villanie to set any price other then their oathes doe require but as such things doe commonly goe in the next Markets And Indentures or Tallies shall be presently made betwixt the purueyors and those from whom the goods bee taken in the presence of the said Constables and foure praysers contayning the quantitie of their takings the price and of what persons and they shal be sealed with the purueyors seales by which Indentures or Tallies satisfaction shal be made to them from whom such goods be taken And if any Taker or Purueyor do make his prouision in other manner then by foure discréet men of the Towne or doe not deliuer Tallies or Indentures with his seale as is beforesaid he shall be incontinently arrested by the Towne where such purueyance was made and brought to the next Gaole and if hee bee thereof attainted he shall be punished as a felon if the quantity of the goods doe require Taking of cariage 26 By the Statute of Anno 36. Edw. 3. St. 36. E. 3. 2 it was enacted That if any Taker or Buyer after Commission to him directed doth puruey leuie or take any carriage in other manner then is comprised in his Commission it is Felony And by the Statute of Anno 36. Edw. 3. St. 36. E. 3. 4. it was ordained That Commissions shall be awarded to enquire of Purueyors behauior and if it be found at the king or parties suit by euidence of the indictors or other manner that the Purueyors haue taken more then they haue deliuered to the kings house and that they haue not paid for that which they haue taken it is felony they shal be punished as felons Forging of euidence 27 By the Statute of Anno 5. Eliz. it was ordained St. 5. El. 14 That it shall be Felony without benefit of Clergie or Sanctuarie eftsoones to commit any of the offences prohibited by the said Statute ordained against the forging of Euidences and Writings being once before conuicted or condemned of any of the said offences by any of the waies or meanes limitted by the said statute But there shall be no corruption of blood or forfeiture of dower by reason of this felony S. Forgerie 3. c. A Rogue banished 28 By the Statute of Anno 39. Eliz. it was enacted St. 39. El. 4. That it shall be felony for any Rogue beeing by the Iustices of Peace adiudged incorrigible and dangerous and therefore banished this Realme by the Iustices in their Quarter Sessions to return again into any part of this Realme or Wales without licence or warrant so to doe which felony shall be heard and determined in that County of this Realme or Wales in which the offendor shall be apprehended St. 1. Iae. 7. And by the statute made Anno 1. Iacob such Rogues as shall be adiudged as aforesaid incorrigible or dangerous Rogues incorrigible shall also by the iudgement of the same Iustices or the more part of them then present in their open Sessions of the Peace be branded in the left shoulder with an hot burning yron of the breadth of an English shilling with a great Romane R. vpon the yron and the branding vpon the shoulder to bee so thoroughly burnt and set on vpon the skinne and flesh that the letter R. be séene and remaine for a perpetuall marke vpon such Rogue during his or her life and thereupon bée sent by the same Iustices to the place of his dwelling if he haue any if not then to the place where he last dwelt by the space of a yeare if that can be knowne by his confession or otherwise and if that cannot be known then to the place of his birth there to be placed in labour as a true subiect ought to be and after such punishment of any such Rogue as aforesaid if any Rogue so punished shall offend againe in begging or wandering contrarie to the said stat of 39. El. 4. or this present act Lex Alure di Regis Then in euery such case the party offending shal be iudged a felon shall suffer as in cases of felony without benefit of clergie the same felony to be tried in the countie where any such offendor shal be taken St. 1. Iac. 12 29 By the statute of Anno 1. Iacob 12. it was enacted Coniuration witchcraft That if any person or persons shall vse practise or exercise any inuocation or coniuration of any euill and wicked spirit or shall consult couenant with entertaine employ féed or reward any euill or wicked spirit to or for any intent or purpose or take vp any dead man woman or child out of his her or their graue or any other place where the dead body resteth or the skinne bone or any other part of any dead person to bee employed or vsed in any manner of Witchcraft Sorcerie Charme or Enchantment or shall vse practise or exercise any Witchcraft Enchantment Charme or
graine or to abate or diminish the Rents or yearely value of any Mannors Lands or Tenements or the price of any victuals corne or graine or any other thing vsuall for the sustenance of men and béeing required and commaunded by any Iustice of Peace or by the Sherife of the Countie or by the Maior Bailife or Bailifs or other head Officers of any Citie or Towne Corporat where such assembly shall bee had by Proclamation to bée made in the Quéenes name to retire or returne in peaceable manner to their places and houses from whence they came and they or any of them notwithstanding such Proclamation shall remaine or make their abode or continue together by the space of one whole houre after such commaundement or request made by Proclamation or after shall in that forcible manner doe or put in vre any of these things last before mentioned then as well euerie such abode or continuing together as euerie such act that after such commaundement or request by Proclamation had or made shall bée done practised or put in vre by any persons béeing aboue the number of twelue shall bee adiudged Felonie and the offendors therein shall be adiudged Felons and shall suffer onely execution of death as in case of Felonie If any person or persons vnlawfully and without authoritie Raising of vnlawful assemblies by some act or words by ringing of any Bell or Bells sounding of any Trumpet Drumme Horne or other instrument whatsoeuer or by firing of any Beacon or by malitious speaking or vttering of any words or making of any outcrye or by setting vp or casting of any bills or bill or writing whatsoeuer or by any other déed or act shall raise or cause to bée raysed or assembled any persons to the number of twelue or aboue to the intent that the same persons should doe or put in vre any of the acts or things abouesaid and that the persons to the number of twelue or aboue so raysed and assembled after request or commaundement had or giuen in forme aforesayd shall make their abode or continue together as is aforesayd or vnlawfully and in forcible manner perpetrate doe commit or put in vre any of the acts or things abouesayd then all and singular persons by whose speaking déed act or any other the meanes aboue specified any persons to the number of twelue shall bée raysed or assembled for the doing committing or putting in vre any of the acts or things aboue mentioned shall bée adiudged for his so speaking or doing a Felon and shall suffer execution of death as in case of Felonie Reléeuing them which be assembled If any wife or seruant of any of the same persons or any other person whatsoeuer shall willingly and without compulsion bring send deliuer or conuey any Money Harneyes Artillerie Weapons Meat Bread Drinke or other Victuall to any person or persons so being assembled as is aforesayd during such time as hée or they shall bee so assembled together in forcible manner as is aforesaid then euerie wise seruant or other person so bringing or conueying c. any of the foresayd things to the same persons so béeing assembled together in forcible manner or to any of them and not departing to their houses or dwelling places vpon request or commaundement made vnto them as is aforesaid shal be adiudged a felon and shall suffer execution of death as in case of felonie Vnlawful assembly by xl and more If any persons to the number of fortie or more shall assemble together in forcible manner vnlawfully and of their owne authoritie to the intent to execute doe or put in vre any of the things aboue specified or to do other felonious or rebellious act or acts and so shall continue together by the space of thrée houres after Proclamation shall bée made at or nigh the place where they shall bée so assembled or in some Market Towne thereunto next adioyning and after notice thereof to them giuen then euerie person so willingly assembled in forcible maner and so continuing together by the space of thrée houres after such Proclamation made and notice thereof giuen shal be adiudged a felon S. Riots c. 32. c. 32 By the Statute made Anno 39. Eliz. it was enacted St. 39. El. 17 That all idle and wandring Souldiers or Mariners Wandring souldiers and mariners or idle persons which now are or hereafter shall bée wandring as Souldiers or Mariners shall settle themselues in some seruice labour or other lawfull course of life without wandring or otherwise repaire to the places where they were borne or to their dwelling places if they haue any and there remaine betaking themselues to some lawfull trade or course of life vpon payne that all persons offending contrarie to this Act to bée reputed as Felons and to suffer as in case of Felonie without any benefit of Cleargie to bee allowed And euerie idle and wandring Souldier or Mariner which comming from his Captaine from the Seas or from beyond the Seas shall not haue a Testimoniall vnder the hand of some one Iustice of Peace of or néere the place where hee landed setting downe therein the place and time where and when hée landed and the place of his dwelling or birth vnto which he is to passe as aforesaid and a conuenient time therein limited for his passage or hauing such testimoniall shall wilfully excéed the time therein limited aboue fouretéene dayes And also as well euerie such idle and wandring Souldier or Mariner as euerie other idle person wandring as a Souldier or Mariner which shall at any time hereafter forge or counterfeit any such Testimoniall Forging a Testimoniall or haue with him or them any such Testimoniall forged or counterfeited as aforesayd knowing the same to bée counterfeited or forged in all these cases euerie such act or acts to bée Felonie and the offendors to suffer as aforesayd without any benefit of Clergie It shall and may bée lawfull for the Iustices of Assises Iustices of Gaole deliuerie and Iustices of Peace of euerie Countie and for all Iustices of Peace in Townes Corporat hauing authoritie to heare and determine Felonies to heare and determine all such offences in their generall Sessions and to execute the offendors which shall bée conuicted before them as in cases of Felonie is accustomed Except some honest person Retaining an offendor into seruice valued at the last Subsidie next before that time to tenne pounds in goods or fortie shillings in lands or else some honest Freeholder as by the sayd Iustices shall bee allowed will bee contented before such Iustices as such person shall bee arraigned of Felonie to take him or them into his seruice for one whole yeare then next following and before the sayd Iustices will bee bound in Recognisaunce of tenne pounds to bee leuied of his lands goods tenements and cattels to the vse of the King if hée kéepe not the sayd person or persons for one whole yeare and bring him
to the next Sessions for the Peace and Gaole deliuerie next ensuing after the sayd yeare And if any such person retained depart within the yeare Departing without licēce without the licence of him that so retained him then to be indicted tried and iudged as a felon and not to haue the benefit of his Clergie 33 By a Statute made Anno 31. Elizab. St. 31. El. 4. it was established Imbeciling the K. Armor c. That if any person or persons hauing at any time hereafter the charge or custodie of any Armour Ordnance Munition Shot Powder or Habiliments of Warre of the Quéenes her heires or successors or of a Victuals prouided for the victualing of any Souldiers Gunners Mariners or Pioners shall for any lucre or gaine or wittingly aduisedly and of purpose to hinder or impeach her Maiesties seruice imbecile purloyne or conuey away any the same Armour Ordnance Munition Shot or Powder Habiliments of Warre or Victuals to the value of twentie shillings at one or seuerall times then euerie such offence shall bée adiudged Felonie and the offendor and offendors therein to be tried procéeded on and suffer as in case of Felonie The suit within a yere after the offence But none shall bée impeached for any offence against this Statute vnlesse the same impeachment bée prosecuted or begun within a yeare next after the offence done And this Act nor any attainder or attainders of any person or persons for any offence made felonie by this Act shall in any wise extend or bée interpreted to make the offendor or offendors to forfeit any lands tenements or hereditaments any longer than during his or their life or liues or to make any corruption of blood to any the heire or heires of any such offendor or offendors No corruptiō of blood or forf of dower or to make the wife of any such offendor to loose or forfeit her dower or title of dower of or in any lands tenements or hereditaments or her action or interest to the same Proofe in discharge of the offendor any thing in this Act c. notwithstanding And such person or persons as shall be impeached for any offence made felonie by this Statute shall by vertue of this Act bee receiued and admitted to make any lawfull proofe that hée can by lawfull witnesse or otherwise for his discharge and defence in that behalfe any law c. notwithstanding Cutting downe of Powdike 34 By a Statute made Anno 22. H. 8. and reuiued Anno 2. 3. St. 22. H. 8. Ph. Mar. it was ordained That euerie peruerse and malitious cutting downe and breaking vp of any part or parts of the dike called new Powdike in Marshland in the Countie of Norffolke and the broken dike otherwise called Oldfield dike by Marshland in the isle of Ely in the Countie of Cambridge or of any other banke béeing parcell of the Rinde and vttermost part of the causey of Marshland aforesaid made for the defence and saluation of the sayd countrey of Marshland at euerie time and times from henceforth committed and done otherwise than in working of the sayd bankes or dykes for the fortifying repayring and amending of the same shall bee taken reputed and adiudged Felonie And the offendors and doers of the same and euerie of them shall bée adiudged and reputed felons And the Iustices of Peace of the sayd Counties of Norffolke and Cambridge within the sayd isle at euerie of their Sessions within the same isle and Counties to be kept shall haue power to cause inquirie to bée made of euerie such offence so at any time in forme aforesayd hereafter to bée done and committed and to award like Proces against euerie of the sayd offendors with like iudgement and execution of the same if they or any of them bée found guiltie by verdict or otherwise as the sayd Iustices haue vsed to do vpon other felonies being felonie by the common law Taking the othe for the Kings title 35 By a Statute made Anno 3. Iac. 4. it was enacted St. 3. Iac. 4. That euerie subiect of this Realme that after the tenth day of Iune next comming shall goe or passe out of this Realme to serue any forreine Prince State or Potentate or shall after the sayd tenth day of Iune passe ouer the Seas and there shall voluntarily serue any such forreine Prince State or Potentate not hauing before his or their going or passing taken the othe viz. That our Soueraigne Lord King Iames is lawfull and rightfull King of this Realme c. before the officer thereunto appointed shall be a felon And if any Gentleman or person of high degrée or any person or persons which hath borne or shall beare any office or place of Captaine Lieutenant or any other place charge or office in Campe Armie or Companie of Souldiers or Conductor of Souldiers shall after go or passe voluntarily out of this Realme to serue any such forrein Prince State or Potentat before that he and they shal become bound with two such suerties as shall be allowed of by the officers by this Act limited to take the said bond vnto the K. his heires or successors in the summe of xx.l. of currant English money at the least bound not to be reconciled nor to make conspiracie with condition to the effect following he shall be a felon viz. That if the within bounden c. shal not at any time thē after be recōciled to the pope or sea of Rome nor shal enter into or consent vnto any practise plot or conspiracie whatsoeuer against the Kings Maiestie his heires and successors or any of his or their estate and estates realms and dominions but shall within cōuenient time after knowledge therof had reueale disclose to the K. Maiestie his heires and successors or some of the Lords of his or their priuie Counsell all such practises plots and conspiracies then the said Obligation to be void St. 43. El. 13 36 By the stat made Anno 43. El. it was ordained Forcible carrying any person out of Cumberland c. That whosoeuer shall at any time hereafter without lawfull authoritie take away any of the K. subiects against his or their will or wils and carrie them out of the counties of Cumberland Northumberland Westmerland and the Bishopricke of Durham or to any other place within any of the said Counties or detaine force or imprison him or them as prisoners or against his or their wills to ransome them or to make a prey or spoyle of his or their person or goods vpon deadly fewd or otherwise Or whosoeuer shal be priuie consenting aiding or assisting to any such taking detaining or carrying away of any such person or persons as aforesaid Or whosoeuer shall take receiue or carrie to the vse of himselfe or wittingly to the vse of any other any money corne cattell or other consideration commonly called Blacke mayle for the protecting or defending of him or
but if it be during the day light though the sunne be set the countrie shal be charged therewith for whosoeuer doth trauel during the day light is in the guard and protection of the lawe and if any doe iourney by night he doth it at his owne perill St. 13. E. 1. 4 3 For the more suretie of the countrie and spéedier defecting of offendors warding of walled towns by the said Statute of Winchester it was enacted That in great townes beeing walled the gates shal be shut from the sunne setting vntill the sunne rising and no man shall lodge in the Suburbs or any place out of the town froÌ„ nine of the clocke vntil day vnlesse his Host will answer for him And the bailifs of townes euery weeke or at the least euery fifteenth day shall mak enquirie of all persons beeing lodged in the Suburbes or in forraine places of the townes and if they find any that hath receiued any suspitious persons not kéeping the Kings peace the baylifs shall execute right and iustice therein St. 13. E. 1â—4 4 And by the said statute of Winchester it was moreouer ordained That in all townes watch shall be kept as in times past it hath beene vsed That is to say When the night watch shall begin and end from the feast of the Ascension vntill Michaelmas in euery citie sixe men shall watch at euery gate in euery Borough twelue men in euery town sixe or foure according to the number of the inhabitants of the towne and they shall watch the towne at night from the sunne setting to the sunne rising And if any stranger doe passe by them he shall be arrested vntill the morning and if no suspition be found he shall goe quit and if they find cause of suspition they shall forthwith deliuer him to the Shirife and the Shirife shall receiue him without hurt vntill he be acquited in due manner And if he will not obey the arrest Resisting of arrest they shall leuie Huy and Cry vpon him and such as kéepe the Towne shall follow with Huy and Cry with all the Towne and Townes néere and from Towne to Towne vntill he be taken and deliuered to the Shirife as is beforesaid and for the arrestments of such strangers none shall be punished And by the Statute of Anno 5. H. 4. St. 5. H. 4. 3 Iustices of Peace haue power to make inquisition in their Sessions from time to time and to punish them which be found in default after the tenour of the foresaid statute of Winchester Enlarging of high waies 5 And for the more spéedie apprehension of felons and that they may haue the lesse meanes to escape when they haue robbed or otherwise offended St. 13. E. 1. 5. by the said statute of Winchester it is further established That the highwaies leading from one Market towne to another shal be enlarged there where any wood hedges or ditches be so that there shal be no ditch wood or bush where he that doth lewdly may escape within two hundred foot of the high way on the one side and two hundred foot on the other but this Statute extendeth not to Ashes or great Trees And if any robberies be done by default of breaking downe ditches vnderwood and bushes the Lord shall answer therefore and if it be a murder the Lord shal be punished at the Kings pleasure And if the Lord be not able to cut downe the vnderwood the Countrie shall helpe him And within the kings demesne woods in forrests and without the waies shal be enlarged as before is said And if any Parke be neere vnto the high way the Lord thereof shall diminish it by the space of two hundred foot from the high way or els make such a wall ditch or hedge that offendors cannot goe forward or backeward to any hurt 6 Because it is very hard and extreame to many persons for that by the foresaid Statutes of 13. Ed. 1. 28. E. 3. 11. they do remaine charged with the penalties therein contained notwithstanding their vnabilitie to satisfie the same and though they do as much as in reason might be required in pursuing such malefactors offendors whereby both large scope of negligence is giuen to the inhabitants resiants in other hundreds counties not to prosecute the huy crie made followed brought vnto them by reason they are not chargeable for any portion of the goods robbed nor with any dammages in that behalfe giuen also great incouragement imboldening is likewise giuen to the offendors to commit daily more felonies and robberies seeing it is in a maner impossible for the inhabitants and resiants of the said hundred and franchise wherein the robberie is committed to apprehend them without the ayde of other hundreds and counties adioyning And for that also the partie robbed hauing remedie by the foresaid statutes for the recouering of his goods robbed and dammages against the Hundred wherein the robberie was committed is many times negligent and carelesse in prosecuting and pursuing the saide malefactors and offendors The Hundred charged wher fresh sute shall cease For the qualifying of all which extreamities by a statute made Anno 27. Eliz. St. 27. El. 13 it was ordained That the inhabitants and resiants of euery or any such Hundred with the franchises within the precinct thereof wherein negligence fault or defect of pursute and fresh sute after huy and crie made shall happen to be shall answer and satisfie the one moitie or halfe of all and euery summe and summes of money and dammages as shall by force and vertue of the saide Statutes viz. of 13. Ed. 1. and 28. Ed. 3. or either of them be recouered or had against or of the same Hundred with the franchises therein in which any robberie or felonie shall at any time heereafter be committed or done And the same moitie shall and may at any time héereafter be recouered by action of debt bill plaint or information in any of the Quéenes Courts of Record at Westminster by and in the name of the Clerke of the Peace for the time being of The Clerke of the Peace shall prosecute the sute or in euery such Countie within this Realme where any such robberie and recouerie by the party or parties robbed shal be without naming the Christian name or the surname of the saide Clerke of the Peace Which moitie so recouered shall be to the only vse and behoofe of the inhabitants of the said Hundred where any such robberie or felonie shall be committed or done St. 27. El. 13 7 If any Clerke of the Peace of or in any Countie within this Realme shall at any time héereafter commence or preferre any such sute action or information and shall after the same so sued commenced or preferred The Clerke of the Peace doth die or is remooued happen to die or to be remooued out of his office before recouerie and execution had yet no such
a statute made Anno 1. Ed. 4. it was ordained That vpon all Indictments and Presentments which shall bée taken before any of the Shirifes of Counties for the time béeing their Vndershirifes Clerkes Baylifes or Ministers at their Turnes or Law-daies they nor any of them shall haue power or authority to arrest attach or put in prison or to leuy any fines or amerciaments of any person or persons so indicted or presented by reason or colour of any such Indictment or Presentment taken before them or any of them or to leuy or take of any such person or persons so indicted or presented any fine or ransome But the said Shirifes vndershirifes Baylifes or Ministers shall bring present and deliuer all such Indictments and Presentments taken before them or any of them in their Turnes or Law-daies to the Iustices of the Peace Indictments taken in the shirifes Turnt shal be deliuered to the Iu. of peace at their next Session of the Peace which shal be holden in the County or Counties where such indictments and presentments shal be taken And if any of the said Shirifes Vndershirifes Clerkes Baylifes or Ministers doe not bring deliuer or present all such indictments or presentments so taken before them and euery of them in their Turnes or Law-daies as is aforesaid to such Sessions of the peace before the said Iustices then the said Shirifes Vndershirifes Clerkes Baylifes and their Ministers and euery of them which shall faile of the bringing deliuering or presenting of such Indictments or Presentments shal forfeit to the king forty pounds so often as they or any of them shall doe the contrarie And the said Iustices of peace shal haue power and authority to award proces vpon such Indictments and Presentments as the Law doth require Proces vpon Indictments awarded by I. of peace and in such like manner as if the said Indictments and Presentments had bin taken before the said Iustices of Peace in the same County or Counties and also to arraigne and deliuer all person and persons so indicted and presented before the said Shirifes Vndershirife their Clerkes Baylifes or Ministers or any of them in their Turnes or Lawdaies and to set such fine vpon euery person or persons indicted or presented of Trespas as it shall séeme good to their discretions And the Estreats of the same fines and amerciaments shall be inrolled and by Indenture deliuered to the said Shirifes Vndershirifs Clerks or Ministers or to some of them to the vse and profit of him which was shirife of the County at the time of the taking of such indictments or presentments And if any of the said Shirifes Vndershirifes Clerkes Bailifes or ministers shall cause to be arrested attached or put in prison or shall cause to be raised or taken any fine or ransome or leuy any amerciament of any person or persons so indicted or presented by reason or colour of any such indictment or presentment before him taken at his foresaid Turne or Law-day before they haue proces from the said Iustices of Peace or Estreats deliuered out of the said indictments or presentments so brought deliuered or presented vnto them then the shirifes which doe so shall forfeit an hundred pounds wherof the one moitie shal be imployed towards the expences of the kings house and the other to the party or parties that shal be endaÌ„maged And he or they shal haue an action of Debt at the common law and like proces as is vsed in an action of Debt at the common law wherein the defendants shal not be essoined wage their law Indictments in London nor haue any protection But this Ordinance shall not extend or be preiudiciall to the shirifes of the city of London touching indictments or presentments to be taken before them in the said city Neither shall this ordinance extend or be preiudiciall to any person or persons that haue graunt of any fines or other amerciaments by any letters patents of the king or of any of his progenitors or predecessors bearing date before the x. day of December next after the beginning of this Parliament being An. Dom. 1461. B This statute doth giue authority to Iustices of peace to award proces vpon all indictments taken in the shirifes Turne when they be brought and deliuered vnto them But yet it is alwaies intended That those Indictments shal be lawfull The shirife inquiring of things not inâ—uirable in 〈◊〉 Turne and containe matter whereof the Shirife hath iurisdiction in his Turne and power to make inquirie For if the Shirife in his Turne will make inquiry of the statute of Liueries 4. E. 4. 31. 8. E. 4. 5. or indict one who did feloniously rauish a woman or such other matters which be not inquirable in the shirifes Turne although he wil bring the indictments before the Iu. of peace and deliuer them according to the foresaid stat of 1. Ed. 4. yet they ought not to award proces vpon them for they were taken coram non iudice and so void 7 And for that Enquests were sometimes taken without being duly returned by the shirife of such persons as were outlawed before Iustices of Record and of some such as were fled to sanctuary for Felony or Treason to haue refuge by whom sometimes not only offendors were indicted but also seueral of the kings liege people not guilty by the conspiracie abbetment and false practise of others for their owne speciall aduantage and priuat gaine for the auoiding whereof there was a statute made Anno 11. H. 4. which doth enact St. 11. H. 4. 9 That no indictment shal be made by any such persons but by enquests of the kings liege people as it hath bin vsed in the time of the kings progenitors duly returned by shirifes or bailifes of Franchises without any maner of denomination before made to the said shirife or bailifes of Franchises by any person of the names of those who shal be impanelled by him Iurors in indictments shal be returned by the shirife without denomination vnlesse it be by the officers of the said shirifes or bailifes of Franchises knowne or sworne thereunto and other ministers to whom it appertaineth by the law of England to make the same And if any indictment be made in any point to the contrary the same shal be void reuoked and of no force According to this statute some haue béen discharged of their Indictments B. because certaine of the Indictors were before that outlawed of Felony This statute of Anno 11. H. 4. is altered by the next statute of Anno 3. H. 8. for so much onely as doth concerne denomination to be made by the Iustices 11. H. 4. 40. St. 3. H. 8. 12. for the reformation of Panels returned before them by the Shirifes when the said Iustices will haue the same Panels reformed But for all the residue it continueth in force 8 The whole authority of returning of Enquests to make Indictments without the denomination of
any person before made béeing by force of the foresaid statute of 11. H. 4. in shirifes and bailifes of Franchises seuerall great extortions and oppressions were done in diuers Counties of this Realme by subtilty and vntrue demeanor of shirifes and their ministers to many persons by making and returning at euery Sessions holden within the said Counties for the body of the shire names of such persons as for the singular gaine of the said shirifes and bailifes would be wilfully forsworne by the sinister labour of the said shirifes and their ministers By reason whereof by their couin and falsehood many true and substantiall persons were diuers times wrongfully indicted of Murthers Felonies and other misbehauiours to the vtter losse of their liues goods and lands and sometime also by the labor of the said shirifs great Felonies and Murthers were concealed and not presented by the said persons partially returned by the same shirifs or their ministers to the intent to compell the offendors to make fines and giue rewards to the said Shirifes and their ministers For the preuention of which enormities by a stat made Anno 3. H. 8. it was established St. 3. H. 8. 12 That all panels to be returned which bée not at the suit of any party Panels for indictments reformed by the Iustices that shall be made and put in by euery shirife and their ministers before any I. of Gaole deliuery or I. of Peace whereof one to be of the Quorum in their open Sessions to inquire for the king shal be reformed by putting to and taking out of the names of the persons which so be impanelled by euery shirife and their ministers by the discretion of the same Iustices before whom such panels shall be returned And the same Iustice and Iustices shall commaund euery shirife and their ministers in his absence to put other persons in the same panels by their discretions And the same panels so reformed by the said Iustices be good and lawfull And if any shirife or any of their ministers at any time do not returne the same panels so reformed then euery such shirife or minister so offending for euery such offence shall forfeit xx l. the one halfe to the king and the other to him or them that will sue for the same by action of Debt at the common law or Bill c. wherin no W.E. or P. shal be allowed and the kings pardon shall be no barre against the party or parties that shall sue the same 9 It is to be thought that by force of the statutes before rehearsed sufficient honest and indifferent Iurors were returned by the shirifes of Counties or that the Panels by them returned were reformed by the Iustices so that if any defect were committed in Indictments or in concealing of offences or offendors then the same was in the Iury which were charged for the body of the Shire to make inquirie for the searching forth of the truth whereof and for the punishment of the said offendors according to their demerites by a statute made Anno 3. H. 7. it was ordained St. 3. H. 7. 1 That the Iustices of peace of euery Shire of this Realme for the time being may doe to take by their discretion an enquest Enquest to inquire of concealments whereof euery man shall haue Landes and Tenements to the yearely value of forty shillings at the least to inquire of the concealements of other Enquests taken before them and before other of such matters and offences as are to bée inquired and presented before Iustices of Peace whereof complaint shall be made by Bill or Bils as well within Franchise as without and if any such concealement be found of any Enquest had or made within the yeare after the same concealement euery person of the same Enquest shall bée amerced for the same concealements by the discretion of the same Iustices of Peace the said amerciaments to bée assessed in plene Sessions 10 For as much as seuerall persons vpon great grounds of vehement suspitions as well of high Treasons petit Treasons and misprision of Treason as of Murthers were many times sent for from diuers Shires and places of this Realme and other the Kings Dominions to the Kings great charges to be examined before the Kings Councell vpon their offences to the intent that conuiction or declaration of such persons should spéedily ensue as the merits of their cases should require And albeit that after great trauaile taken in the examination of such persons it appeared to the said Councell by confession witnesse or vehement suspect that such persons were rather guilty of such offences whereof they were examined then otherwise yet neuerthelesse such offendors so examined by the course of the common Lawes of this Realme must be indicted within the Shires or places where they committed their offences and also tried by the inhabitants and fréeholders of such Shires and places although by their confessions or by sufficient witnes their offences were certainely knowne to the Kings Councell By reason whereof besides the trauaile of the Kings Counsell the King was often put to great charges in remaunding such persons to the countries where they offended there to bée indicted and tried of their offences And sometimes the inhabitants and fréeholders of the Shires or places where such offences were done were compelled to appeare out of their shires or places for such causes to their great charges for the triall or declaration of such offences And sometime by occasion of the charges for remaunding such offendors to be indicted and tryed by the course of the common Law such offendors did lye still in prison and were forgotten whereby many times by the helpe of their confederats they escaped vnpunished to the great courage and euill example of euill doers For the reformation whereof by a statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 23. That if any person or persons being examined before the Kings Councell or thrée of them vpon any manner of Treasons misprision of Treasons or Murthers doe confesse any such offences or that the said Councell or thrée of them vpon such examination shall thinke any person so examined to be vehemently suspected of any Treason misprision of Treason or Murther then in euery such case by the Kings commaundement his Maiesties Commission of Oyer and Terminer vnder his great Seale shal be made by the Chancellor of England to such persons Indictments and trials where the king will and to such Shires and places as shall bée named and appointed by the Kings Highnesse for the spéedie triall conuiction or deliuerance of such offendors Which Commissioners shall haue authoritie to inquire heare and determine all such Treasons misprisions of Treasons and Murthers within the Shires and places limitted by their Commission by such good and lawfull persons as shal be returned before them by the Shirife or his ministers or any other hauing power to returne Writs and Proces for that
hide their affection in that behalfe haue signified the cause of their apprehension to bée but onely for suspition of felonie whereby the said offendors haue escaped vnpunished to the incouragement of théeues and euil doers For reformation whereof by a stat made Anno 1. 2. P. M. it was ordained St. 1. 2 P. M. 13 That no Iustice or Iustices of Peace shall let to baile or mainprise any such person or persons which for any offence Bailing of offendors by Iust of peace or offences by them or any of them cōmitted be declared not to bée repleuisable or bailed or forbiddē to be repleuied or bailed by the stat of West 1. made An̄ 3. E. 1. And furthermore that any person or persons arrested for manslaughter or felonie or suspition of manslaughter or felonie being baileable by the law shal not be let to baile or maineprise by any Iu. of Peace if it be not in open Sessions except it be by two Iu. of peace at the least whereof one to be of the Quorum and the same Iustices to be present together at the time of the said bailement or mainprise which bailement or mainprise they shall certifie in writing subscribed or signed with their owne hands at the next generall Gaole deliuerie to be holden within that countie where the said person or persons shal be arrested or suspected And the said Iu. or one of them beeing of the Quorum when any such prisoner is brought before them for any manslaughter or felonie before any bailement or mainprise shall take the examination of the said prisoner and information of them that bring him of the fact and circumstances thereof and the same or as much thereof as shal be materiall to prooue the felonie shall put in writing before they make the same bailement which said examination together with the said bailement the said Iu. shall certifie at the next generall Gaole deliuerie to be holden within the limits of their commission And euerie Coroner vpon any inquisition before him found The Coroners duty vpon an inquisition found wherby any person or persons shal be indited for murder or māslaughter or accessorie or accessories to the same before the murder or manslaughter committed shall put in writing the effect of the euidence giuen to the Iury before him being materiall And aswel the said Iu. as the said Coroner shall haue authoritie by this act to bind all such by recognizance or obligation as do declare any thing materiall to prooue the said murder or manslaughter offences or felonies or to be accessory or accessories to the same as is aforesaid to appeare at the next generall Gaole deliuerie to be holden within the county city or town corporat where the triall thereof shal be then there to giue euidence against the partie so indited at the time of his triall and shal certifie aswel the same euidence as such bond bonds in writing which he shal take together with the inquisition or inditement before him taken found at or before the time of his said triall thereof Certificat of a bond taken by a Iu. of peace to be had or made And likewise the said Iu. shall certifie all euery such bond taken before him in like maner as before is said of bailmēts and examination And in case any Iu. of peace or Quorum or Coroner shal offend in any thing contrarie to the true intent and meaning of this act then the Iu. of Gaole deliuerie of the shire citie towne or place where such offence shal happen to be committed vpon due proofe thereof by examination before them shal for euery such offence set such fine on euery of the same Iu. of peace Coroner as the same Iu. of Gaole deliuerie shall thinke méet and shall estreat the same as other fines and amerciaments assessed before Iustices of Gaole deliuerie ought to be Prouided alwaies that Iu. of Peace and Coroners within the city of London and the County of Middlesex in other Cities Boroughs and Townes corporat within this Realme and Wales shall within their seuerall iurisdictions haue authority to let to baile felons and prisoners in such manner forme as they haue bin heretofore accustomed This act or any thing therein contained to the contrary notwithstanding And also shall take examinations bonds as is aforesaid vpon euery bailement by them or any of them to be made and shall certifie euery such bailements bonds examinations by them or any of them takē or made at the next Gaole deliuery to be holdē within the shire city borough or towne where their seuerall iurisdictions extēdeth vpon like paine and forf as is before limitted in this present act 14 Because Sherifs and others did in times past let to mainprise notorious and knowne théeues being taken and imprisoned for murder and other felonies S. 3. E. 1. 15. and such as be not mainpernable contrarie to the forme of a Statute made touching those which bee repleuisable and which not and thereby such malefactors as were not repleuisable were let to mainprise And for to deliuer them deceitfully before the comming of the Iustices in Eire or other assigned for their deliuerance they procured and suborned by themselues and by their friends Iurors of the countie some they threatened And so partly for feare of the Sherifs and others which did let them to baile and partly for feare of those felons which were so let to mainprise many robberies and homicides were hidden and concealed from the Iustices of Gaole deliuerie for the preuention whereof by a Stat. made an̄ 27. E. 1. An. 27. E. 1. 3. intituled the Stat. of fines leuied it was ordained That Iustices assigned to take assises in euery countie where they take assises presently after the assises taken shall remaine both together if they be Laie And if one of them be a Clerke then one of the most discréet knights of that county being associate vnto him by the kings writ shall deliuer the Gaole in that countie aswell within liberties as without of all the prisoners according to the vsuall forme of deliuering of Gaoles Bailement of offendors by Sherifes And then the same Iustices shall inquire which sherifs and others haue let to baile any prisoners that were not repleuisable or haue offended in any thing contrarie to the Stat. of West 1. and to punish and chasten them in euery respect according to the forme of the said Statute 15 And for the causes aforesaid it was ordained by the stat of an̄ 4. E. 3. St. 4. E. 3. 2 that good and discréet persons other than of the places if they may be found sufficient shal be assigned in all the counties of England to take assises Iuries and certifications and to deliuer the Gaoles And the same Iustices shall take the assises Iuries and certifications shall deliuer the Gaoles thrice in the yeare at the least and more often if néed be And
Peace of the same Countie where such offendors shall happen to be shall vpon his or their corporall Oath before the Iustices of the Peace in the open Quarter Sessions of the same Countie where such offendors shall then bée or at the Assises and Gaole Deliuerie of the same Countie before the Iustices of the same Assises and Gaole Deliuerie abiure the Realme of England and all other the Quéenes Dominions for euer vnlesse her Maiestie shall licence the parties to returne and thereupon shall depart out of the Realme at such Hauen or Port and within such time as shall in that behalfe be assigned and appointed by the said Iustices before whom such abiuration shal be made vnlesse the same offendor bée letted or staied by such lawfull and reasonable meanes or causes as by the common lawes of this Realme are permitted and allowed in cases of abiuration for felonie And in such cases of let or stay then within such reasonable and conuenient time after as the common law requireh in case of abiuration for felony as is aforesaid And the Iustices of peace before whom any such abiuration shall happen to be made as is aforesaid shall cause the same presently to be entered of Record before them and shall certifie the same to the Iustices of Assises and Gaole deliuerie of the said Countie at the next Assises or Gaole deliuerie to be holden in the same countie And if any such offendor which by the tenour and intent of this act is to be abiured as is aforesaid shall refuse to make such abiuration as is aforesaid or after such abiuration made shal not go to such hauen and within such time as is before appointed from thence depart out of this Realme according to this present act or after such his departure shall returne or come againe into any the Qu. Realmes or Dominions without her speciall licence in that behalfe first had and obtained Then in euery such case the person so offending shal be abiudged a felon and suffer as in case of felonie without benefit of Clergie If any person or persons that shal at any time offend against this act shall before he or they be so warned or required to make abiuration according to the tenour of this act repaire to some parish Church on some sonday or other festiuall day and then and there heare diuine seruice and at Seruice time before the Sermon or reading of the gospel make publike and open submission and declaration of his and their conformity to her Maiesties lawes and statutes as in this act is hereafter declared appointed That then the same offendor shall thereupon be cléerely discharged of and from all the penalties and punishments inflicted or imposed by this act for any of the offences aforesaid Prouided that no Popish Recusant or seme couert shal be compelled to abiure by vertue of this act Prouided also that euery person that shall abiure by force of this act or refuse to abiure being thereunto required as is aforesaid shal forfeit and loose to her Maiestie all his goods and cattels and all his lands tenements and hereditaments during his life only and no longer But his wife shal not loose her dower neither shall his blood bée corrupt S. Felonie by stat 9. 17 By a statute made an̄ 35. El. 2. St 35. El. 2. intituled an act for the restraining of Popish Recusants to some certaine place of abode it is ordained Popish Recusants shall abiure the Realme That Recusants not conforming themselues to the obedience of the lawes of this realme in comming to the Church to heare diuine seruice which shall not vpon the request of two Iustices of peace or Coroner of the same countie abiure the realm and depart for the same and not returne without the Queenes licence shal be adiudged felons and suffer and loose as in case of felonie without benefit of Clergie S. Fel. by St. 10. St. 3. E. 1. 10 18 By the stat of West 1. made an̄ 3. E. 1. it is enacted Abiuration of a Trespasser That he which committeth trespasse in parkes or ponds shall abiure if hee cannot find suretie no more to doe the like offence But that abiuration is not for felonie neither shal he forfeit his lands or goods Pleading not guiltie HAuing made mention of one of the pleas which a prisoner brought to the barre to be arraigned of Treason or Felonie doth plead viz. of the Confession of the offence and shewed how many sorts of Confessions of felonie the law doth take notice of by what meanes she doth procéed against the parties confessing I am now to treat of a second or one other plea that the prisoner vpon his arraignment doth plead in his own defence which is the plea of Not guiltie For when a prisoner by an appeale or an Inditement is charged with treason or felonie he may estrange himselfe from the offence if he will and ioyne the same issue which the defendant oft times doth in an action of trespasse some other personall actions viz. he may plead and take for his issue Not guiltie This plea of not guiltie is the most common and vsual plea Pleading not guilty the most common plea. that he which is arraigned of treason or felonie hath to plead vpon an inditement or an appeale and it is the plea whereunto euery person that is arraigned shall be enforced vnlesse it be in speciall cases viz. where he hath matter of Iustification or matter in Law to plead And this plea of Not guiltie doth tend to the fact that is to the felony and therefore it receiueth great fauour in Law 7. Ed. 4. 15. 4. H. 6. 15 4. H. 7. 5. 10. H. 4. 4. 9. H. 4. 2. for the Law doth allow this plea to him who is arraigned after he hath pleaded in abatement or barre of the appeale or inditement so that his barre doe not comprehend such matter as doth confesse the felonie as a Release of the appellant or the Kings pardō And that plea he shall haue also though one of his pleas were matter in law for though those pleas doe require diuers trials 29. Ed. 3. 91. 22. E. 4. 39. 27. As p. 3 14. Ed. 4. 7 yet in fauour of life hee shall haue both those pleas as well as he shall haue when he doth plead matter triable by the Bishop or by Record viz. and moreouer not guiltie Which pleas he shall haue notwithstanding he doe not conclude moreouer not guiltie that is to say Pleading not guilty after other pleas he shall come time enough to plead not guiltie after the matter triable by the Bishop or by Record is found against him And the manner of pleading in all those cases is to plead his plea and to pray allowance thereof and ouer to the felonie not guiltie Vpon the plea of not guilty no coūcel allowed 2 Vpon this plea of onely not guiltie the partie indited shall not haue coūcell
be graunted vpon an inquiry according to the stat of West 2. So that if the abettors be not distrainable the def in an appeal shal be without any remedy And further the damages which the abettors are to pay by force of the said statute of West 2. be the dammages that the defendant hath recouered against the appellant which dammages the abettors are to pay for the defendant or for his insufficiencie or nonabilitie and not for themselues And so it may be said that they may satisfie for themselues in a writ of Conspiracie to be brought against them or otherwise their offence shal be vnpunished Conspiracy maintenable vpon acquitall in an appeale or indictment And therefore notwithstanding the said statute of West 2. a Writ of Conspiracie doth lye at this day as well where the defendant is acquited vpon an appeale as where he is acquited vpon an Indictment And accordingly there is a Writ of Conspiracie in the Register deuised for that purpose 33. H. 6. 2. 40. Ed. 3. 42 22. As p. 39 14. H. 7. 2. amongst other Writs of Conspiracie But in an appeale founded vpon an indictment if the defendant be acquite vpon the appeale he shall not haue a Writ of Conspiracie because it cannot be intended to be founded vpon malice when it is founded vpon an Indictment And likewise if an Appeale be founded vpon an Indictment although the appellant be Non-sute after declaration and the defendant be arraigned and acquite at the Kings suit yet the defendant shall not haue a Writ of Conspiracy causa qua supra 3 He against whom a Writ of Conspiracie is to be brought The indictment must be false which giueth the writ of Conspiracy must be charged that he conspired with others to indict the plaintife falsely and maliciously without any good or lawfull cause 22. As p. 77 Fi. Cōsp 21. 24. or els the Writ will not lye and therefore if by the conspiracie of two or moe one is indicted of Murther and vpon his arraignement it is found that he did kill the man in his owne defence or by misaduenture or by any other meanes which by the Law is iustifiable he shall not haue a Writ of Conspiracie for the Indictment was framed vpon good cause viz. the death of a man and neither vpon falsehood or malice and in like sort if he that is indicted or appealed of Felony doth purchase his Charter of Pardon thereof and pleadeth it he shall not haue a Writ of Conspiracie for by that pardon sued he doth in a sort confesse the committing of the felonie and so cléere the falshood or malice of any which did deuise to indite him And yet notwithstanding the obtaining of his pardon he may waiue it and plead not guiltie and then if he be acquit of the felonie he may haue his writ of conspiracie 11. H. 4. 40. 7. E. 6. Dyer 85. 28. H. 8. Dyer 28. But if the pardon be by act of Parliament he cannot waiue it for the Iustices ought to allow him his pardon without pleading of it if it be a generall pardon 33. H. 6. 2 4 If two be indited or appealed of felonie the one as principall A conspiracie doubtfull and the other as accessorie and the principall hath his charter of pardon or doth die before he be attainted the accessorie shall not haue a writ of conspiracie against the parties that sued the appeale or deuised to indite the principal and him for that it is not yet discussed but standeth indifferent whether the conspiracie were false or true 21. E. 3. 17 7. H. 4. 31. 27. Ass p. 12 30. Ass p. 21 22. Ass p. 77 5 If after a conspiracie for an inditement agréed vpon The conspirators doe become indictors to be preferred by two or more the same conspirators be sworne vpon an Enquest to enquire of felonies and they with the residue of the Enquest that be sworne with them do indict him of felony against whom they did before conspire in this case he shall not haue a Writ of Conspiracy against them because it cannot be intended false and malicious when they did it by vertue of their oathes and also did it with others besides themselues And the same Law is if after the conspirators be sworne vpon the Enquest of inquirie and haue spoken and conferred with their companions the Iustices shall remooue them from the Enquest yet in that they were once sworne and the conspiracie thereby discharged this remoouing them from the Enquest which commeth after 20. H. 6. 5. 35. shall not make them to bée againe in danger and charge of the Writ of Conspiracie And so it is of a Iustice of Peace A Iustice of peace he shall not be charged by a Writ of Conspiracy for any thing which he doth in open Sessions as a Iustice of Peace 27. Ass p. 12 12. E. 4. 18 21. E. 4. 67. 47. Ed. 3. 17. for he is a Iudge of record and sworne to execute his office duly and may informe for the kings benefit and to punish offendors as well as he can But the Law is méere contrary if one who is no Iustice of record doth it for he shal be charged by a Writ of Conspiracy if he do it with others And in like sort 35. H. 6. 14. 27. As p. 12 20. H. 6. 5. 9. H. 4. 11. 21. H. 7. Kel 81. if one doth come into the Court A giuer of Euidence and discouereth a felony and is sworn and doth giue euidence to the Enquest he shall not thereupon be charged in conspiracie if he doth not before conspire with others falsely and maliciously In a writ of Conspiracy the def pleaded that when the Iurors had taken their oathes vpon the indictment he was sworn to informe them But because an act done by him only without others cannot be said to be any conspiracy 35. H. 6. 14. 27. As p. 12 and so was no answer to that wherewith the plaintife charged him for that cause he wayued his plea and pleaded not guilty for he that is to be charged with a conspiracy must be charged in respect that he did it with others and falsely and maliciously Who be conspirators 6 And for that it might be knowne to all men whom the Law did construe to be conspirators and were worthy to be punished as conspirators Therefore there was a stat made An̄ 33. Ed. 1. which defineth them in this manner viz. St. 33 E. 1. Conspirators be they which bind themselues by oath couenant or other alliance that euery one shall helpe and maintaine others purpose falsely and maliciously to indict or to moue and maintaine suites and also that cause infants to appeale others of felony whereby they are imprisoned and much grieued and such as retaine men in the country with liueries or fées to maintaine their leud enterprises and to subuert the truth as wel the takers as the giuers
and suffer such pains of death losses of lands goods and cattels as if they had béen conuicted of any treasons felonies robberies or other the said offences done vpon the land without benefit of Clergie or Sanctuarie Prouided alwayes that this Act shall not extend or be preiudiciall to any person or persons for taking of any victuals Taking things vpon necessitie gables ropes anchors or sayles which any such person or persons compelled by necessitie taketh of or in any ship which may conueniently spare the same so the same person or persons pay out of hand for the same victuall gables ropes anchors or sayles mony or mony worth to the value of the thing so taken or doe deliuer for the same a sufficient bill obligatorie to bée payd in forme following viz. if the taking of the same things bée on this side the straits of Marrok then to bée payd within foure monethes and it beyond the said Straits then to be paid within twelue monethes next ensuing the making of the sayd bill And that the makers of the sayd bils well and truely pay the same debt at the day to be limited within the said bills Prouidâ—d alwayes Commissions directed into the fine ports that whensoeuer any such Commission for the punishment of the offences aforesayd or of any of them shal be directed or sent to any place within the iurisdiction of the fiue Ports that then euery such Commission shall bee directed vnto the Lord Warden of the sayd Ports for the time being or to his deputie and vnto thrée or foure such other persons as the Lord Chauncellor for the time béeing shall appoint And that when any Commission shall be directed vnto the fiue Ports for the inquisition and tryall of any of the offences expressed in this Act that euerie such inquisition and tryall to be had by vertue of such Commission shall be made and had by the inhabitants in the said fiue ports or the members therof Any thing in this Act to the contrarie notwithstanding So much of this stat as concerneth the triall of treasons is altered by the stat of Anno 1. 2. P. M. 10. and the same made triable onely by the course of the common law St. 18. E. 3. 2 12 The Iustices of peace of euery county by vertue of the K. commission to them directed and by force of the stat of Anno 18. Ed. 3. be Iudges in felonie Iust of peace Iudges in felonie and haue authoritie to heare and determine felonies the words of which stat be these viz. Two or thrée of the most worthy men of counties shal be assigned kéepers of the peace by the K. commission and at what time need shall bée the same with otherwise and learned in the law shall be appointed by the K. commission to heare and determine felonies and trespasses done against the peace in the same county and to execute punishment reasonably according to law reason and the maner of the fact And the words of the kings commission which doth authorize Iustices of peace to be Iudges of Felonie and to heare and determin felonies amongst others be these viz. Iacobus Dei gratia Angliae The words of the commission of the peace Scotiae Franciae Hiberniae Rex fidei defensor c. Praedilectis A. B. C. D. E. H. c. Salutem Sciatis quod assignauimus vos quoslibet duos vel plures vestrum Quorum aliquem vestrum A. B. C. D. vnum esse volumus Iustitiarios nostros ad pacem nostram in comitatu nostro Buckingham conseruandam ad inquirendum per sacramentum proborum legalium hominum de comitatu praedicto per quos rei veritas melius sciri poterit de omnibus omnimodis felonijs transgressionibus c. ac de omnibus singulis alijs malefactis offensis de quibus Iustitiarij nostri pacis legitimè inquirere possunt aut debent per quoscunque aut qualitercunque in Comitatu praedicto factis siue perpetratis Vel quae in posterum ibidem fieri vel attemptari contigerit c. Et ad omnia singula Felonias c. indictamenta praedicta ceteraque omnia singula praemissa secundum leges statuta Regni nostri Angliae prout in huiusmodi casu fieri consueuit debuit audiendum terminandum And though it doth plainely appeare by the words of the foresayd Commission that the King doth giue authoritie to Iustices of Peace to inquire of heare and determine all manner of Felonies viz. as well of such as bée made Felonies by Statute as of such offences as were Felonies by the Common law yet because there hath béene a scruple and question moued by some that the foresaid Statute of Anno 18. Edw. 3. did meane and was to bee expounded to giue authoritie to Iustices of Peace to inquire of heare and determine those felonies onely which were at the time of the making of that Statute felonies viz. That were felonies by the Common law and not to giue them authoritie to inquire of heare and determine those offences as felonies which were made felonies by seuerall Statutes ordained sithence that time and that the Kings Commission authorised by that Statute did giue them no further authoritie than that Statute meant Therefore not to adde to the law but to satisfie euerie reader and to make that thing more plaine and perspicuous to all men which to some did séeme doubtfull the makers of the stat of anno 8. El. 3. touching the transporting of shéepe and of the stat of anno 25. H. 8. 6. ordained against buggery and of the stat of anno 18. H. 6. 19. established to punish Souldiers that depart from their Captains without licence and of the stat of an 39. El. 4. an 1. Iac. 7. touching dangerous and incorrigible rogues and of the stat prouided an 39. El. 17. against wandering souldiers and mariners and of the stat of an 22. H. 8. 11. established against the cutting downe of powdike and of the stat of an 43. El. 13. enacted against the carrying away of any persons against their wils out of Cumberland Northumberland Westmerland or the Bishopricke of Durham did by speciall words ordaine that the I. of the peace of the counties wherein any of the foresaid seuerall offences were committed should haue authoritie at their generall Quarter Sessions to inquire of heare and determine the said offences And the like authoritie was giuen by the said seuerall stat to the Iust of Assise and Iust of Gaole deliuerie to inquire of heare and determine the said offences in the counties where the same were committed within their seuerall commissions And by the stat of an 1. E. 4. it waâ— ordained That the I. of peace of euery county St. 1. E. 4. 2 shal haue authoritie and power to arraigne and deliuer all person and persons indicted or presented befor the Sherifes Vndersherifes their Clerks Bailifs or Ministers
the patient cured and not diseased of the sinner reclaimed and not persisting in vice of that peace which I would haue and wish might flourish and not of those Lawes that by awe do worke it For these Lawes whereof I doe write and some others How the Lawes doe preserue the peace of the King doe preserue the peace of the King in that they doe assure vs who is our King doe settle and continue the Crowne on his head do put the Sword and Scepter in his hand doe attribute to him seuerall Regall Titles Honours and Prerogatiues doe bind his Subiects to performe all loyaltie duetie and obedience vnto him and lay heauie punishments vpon the withstanders or deniers thereof These Lawes bee as his Priuie Counsellours incessantly respecting the preseruation of his person peace Crowne and dignitie These be as his Gentlemen Pentioners attending daily in his presence to do him all princely honor and seruice These bee as the Yeomen of his guard waiting day and night to protect his person in peace from all forcible assaults and other perils These bee as his great and goodly Shippes which lye houering on the Seas and his strong castles and forts of defence which stand firmly vpon the land wherewith he doth preuent forrein hostilitie represse inward tumults and so keep himself and his people in peace These be as the Iudges Iustices Sherifes Constables and other Officers watching euerie houre and moment in all the Shires places corners and creekes of the Realme to represse outrages and to maintain his peace And lastly these be to him as his mynt by which he doth coyn gold and siluer to defend himselfe and his people in the time of warre and to support his honour and royall estate in the time of peace How the Lawes doe preserue euerie person in peace And also by the protection of these Lawes euerie good member of the whole kingdome doth receiue the like benefit of peace for in feare of them each person doth enioy his life and limmes in peace and is defended from the bloudie minded murderer and manqueller and the rage of the furious quareller and fighter And in feare of them the housekeeper resteth in peace with his wife and family vnder his owne roof without being assaulted by burglers And in feare of them the traueller iournieth in peace from one country to another without being spoiled by robbers And in feare of them the Grasiers cattell do feed quietly in his pasture without being stolne by theeues The terrour of the Lawes do ofttimes restraine cholericke or contentious spirits from Batteries Riots Routs Forcible entries and other outrages and couetous and greedy persons from practising or procuring of forgeries and godlesse and irreligious people from persuading or committing of periuries and false and guilefull persons from putting in vre of frauds and deceits and impudent and shamelesse men to wrest from others by briberie extortion or oppression And diuers there be who neither by the lawes of God of nature or reason will be bridled and reduced to vertue yet by the penalties feare of some of our capital and criminal laws do yeeld to be curbed refrain from the practise of their vicious liues of whom the saying of the Poet may be verified Oderunt peccare mali formidine poenae And so I may truly verifie that the Lawes whereof I do write be the meanes of the peace of the K. and the kingdom And so long as the offences in this Treatise specified shall be reformed or duely checked by these Lawes Florebit pax Regis Regni But though peace be mine end and peace the marke that I roue at yet there be some that thinke that the diuulging of our criminall and capitall Laws in our mother tongue will not be a meane of that peace which I do so much ayme at for that as they surmise the same Lawes may then be misconstrued by euerie ignorant and vnlearned person that can read English and the sence and meaning thereof may be mistaken the reader himselfe may be led into errour and others may be misinformed by his imbecilitie of iudgement seeing the same reader is able only to looke into the letter of the law and not to discerne of the intent of the makers or of the true sence thereof And do alledge for their reason the same that was obiected at the making of the Statute of Ann̄ 34. H. 8. St. 34. H. 8. ordained for the restraint of seuerall persons to read the Scriptures in the English tongue for feare of raising of heresies and schismes in Gods church surmising then that ignorance was the mother of deuotion as these men now would make her of obedience But if the same parties will looke backe they shall find the said Statute repealed St. 1. E. 6. 12 and by the learning and practise of the former our present age the reason aforesaid refelled Men may not surcease to read the Scriptures because the diuell misconstruing the Psalme Psal 90. Math. 4. would haue persuaded thereby Iesus Christ the sonne of God to cast himselfe downe headlong from the pynacle of the Temple Nor for that the Saduces being deceiued in a place of Deutronomie Deut. 25. Math 22. would haue inferred by the woman which maried seuen brethren that there is no resurrection of the dead Nor for that S. Paul in his Epistles did write certaine obscure things to be vnderstood 2. Pet. 3. which vnlearned and vnconstant men depraued as they did other Scriptures to their owne destruction For this deprauing misconstruing or wresting of the lawes of God or man out of their true meaning proper sence doth conuince the reader of ignorance pride selfe loue or folly and doth nothing impeach the credit of the same laws nor the necessitie or conueniencie of them nor the considerat iudgement of the law-makers We perceiue by the questions demurrers argumēts which oft do arise amongst the reuerent Iudges and learned men in the lawes of our Realme touching the construction and true meaning of diuers of our Statutes and common lawes that the old Prouerbe is true Nemo nascitur artifex viz. No man is borne vnto or at the first can obtaine the perfect vnderstanding of any learning science or art whatsoeuer but euerie person beginneth in ignorance then increaseth in knowledge by little little according to his capacitie and diligence For as the Pomander doth giue a pleasant sauour only whē it is rubbed and the flint doth yeeld fire onely when it is beaten so knowledge in all lawes and other learnings is obtained onely by much studie due consideration deep digestion thereof as an hole is made in the hard stone by the often dropping of the soft and liquid water And therfore if the busie searcher of other mens knowledge and carper at their ignorance will with the eyes of his mind looke into the old and new Testament and euery booke place and particle thereof and into
infoelicitas in vijs eorum viam pacis non cognouerunt And againe speaking in their persons Psal 11. he saith Qui dixerunt linguam nostram magnificabimus labia nostra a nobis sunt quis noster dominus est And for that case the same king well obseruing the sea of mischiefes miseries and calamities which daily doe flow from euill tongues made his humble prayer vnto God to graunt him power to be watchfull of his owne tongue Psal 140. saying Pone custodiam ori meo et ostium circumstantiae labijs meis And when he perceiued that God had heard his prayer Psal 38. he said ioyfully Dixi custodiam vias meas vt non delinquam in lingua mea viz. I haue made a full resolution and promise to my selfe that I wil so vse and gouerne my spéech that I will neuer offend in my tongue And the said king telleth vs plainely that there is no other meanes to haue the comfort of this life Psal 33. and to enioy good daies in this world but to restraine the tong from speaking of euill the lips from powring out mischiefe and to séeke peace and follow it Prou. 18. And his sonne king Salomon confirmed the same saying Vita est mors in manibus linguae And though slaunderous speeches and menaces be but words and may be taken but only as a smoke a breath or blast of wind and so to vanish and be dispersed in the aire like dust yet experience doth teach vs that by the imbecilitie of mans iudgement and the corruptionn of his nature they be vsed as firebrands of priuat and open grudges quarrels conspiracies most other tragicall turbulent stratagems and therby a verbis ad verbera peruentum est And we seldome heare of any the said enormities effected but they tooke their beginnings of menaces threats slanders or other euill words which offences growing by menaces other spéeches tending to contention and the breach of the peace the whole bodie of this realm hauing déeply tasted the smart therof desirous to preuēt the like by a stat made an̄ 18. Stat. 18. E. 3. E. 3. did ordain that the K. Iustices amongst other articles shal be sworn in case any of what estate or condition they be come before thē in their Sessions with force armes or otherwise against the peace Sta. 2. E. 3. 3. or against the form of the statute therof made or disturbe execution of the common law or to menace the people that they may not pursue the law they shall cause their bodies to be arrested put in prison Menacers shal be imprisoned And in case they be such that they cānot arrest them the same Iustices shall certifie the K. of their names of their offence speedily so that he may therof prouide conuenient remedie There is another foule puddle that ouzeth frō the same corrupt gogmire distilleth out of a heart likewise infected with malice enuie but is deuised and practised by another mean thā the former which is by libelling secret slandering or defaming of another for this priuie backebiter doth not by words impeach his aduersarie in so manifest and turbulent maner as the cholerick menacer in his furie doth but seeming to sit quietly in his studie he doth more déeply pinch him infixeth a more durable wound into his fame credit than the other boistrous fellow doth into his bodie who in a moment threatneth to do more than peraduenture he after is willing or dareth to performe in an age The menacer layeth open his name his grief and standeth in the face of his enemy discouereth the corasiue of his mind doth thereby giue a forewarning to his aduersarie to prouide for defend himselfe But this secret canker the libeller concealeth his name hideth himselfe in a corner priuily stingeth him in fame reputation credit who then neither knoweth from whom or vpon what cause he receiueth his blows nor yet hath means therin to defend himselfe And whether this libelling Co. li. 5.125 secret slandering or defaming The enormities of priuie defaming and libelling be against a publike magistrat or a priuat person yet it may tend to the breach of the peace to the raising of quarels effusion of blood so may be a speciall impedimēt of that peace which all good policie endeuoreth to maintaine For if it be against a publike magistrat it is a great scandall offence to the king his chief magistrats the whole gouernment of the realm to assigne such an officer to rule and gouerne others who himselfe is void of gouernmēt and shall deserue to be impeached with such crimes as he shal be taxed with or shal be imputed vnto him by such an infamous libell And if it be but against a priuat person yet seeing that a libel or other note of infamie is inuented to defame him to tread his honor estimation in the dust to extirpate and root out his reputation credit from the face of the earth to make him a scorne to his enemies to be derided despised by his neighbors it doth greatly kindle the wrath of him of such as be of his kindred alliance true friendship vrge them to reuenge whereupon do ofttimes ensue grudges quarels fraies combats manslaughters Sometimes the malicious defamor powreth out his venim in writing by a scandalous booke ballad epigram or rime either in mitre or prose some other times by sons scofs iests or taunts diuers times by hanging of pictures of reproach signs of shame or tokens of disgrace néer the place where the party therby traduced doth most conuerse as the picture of the gallowes pillorie cucking stoole hornes or other such like In which cases the law hath prouided that the partie delinquent when he is found out discouered shal be sharply punished for he may either be indicted for the same offence by the ordinarie course of the common Law Or else a Bill may be exhibited against him in the Starre chamber The punishment of a secret Defamor where he shal be punished according to the qualitie of his demerits by fine imprisonment and if it be an exorbitant offence then by Pillorie losse of his eares whipping or c. or the party gréeued may haue an Action vpon the case against the offendor recouer his damages Lib. Intr. fol. 13. And in this case it is not material whether the Libel be true or false or the party scandalized thereby be lyuing or dead or be of good name or euill for though the libell be true the party defamed be euill yet our good Lawes be deuised to punish him such like euill men by a due course of justice after his offence is presented inquired of tried proued to his face before lawfull magistrates thereunto assigned and he is not to be carped at accused condemned in a corner behind his backe by
any other priuat person who intrudeth himselfe without warrant to be a censor of manners rather séeketh the discredite of the partie then the reformation of his faults for this secreat searching into sifting of other mens conditions dyuing into their offences divulging them to their discredites doth conuince the offendor to be a man of lewde disposition to haue made shipwracke of his conscience doth brand him during his life with the name of an infamous Libeller or slaunderous backbiter And therefore by Gods owne commandement it is specially giuen in charge to euery of his people Non maledices principi populi tui Non fasias calumniam proximo tuo Psal 100. And king Dauid saith Detrahentem secreto proximo suo hunc persequebar And God doth threaten that he himselfe will take reuenge of the slaunderer Psal 49. saying Sedens aduersus fratrem tuum loquebaris aduersus filium matris tuae ponebas scandalum haec fecisti tacui exictimasti inique quod ero tui similis sed arguam te et statuam contra faciem tuam And as infamous libelling secret defaming be oft times the causes of grudges séeking of reuenge and thereby of quarrels in like sort words of slaunder or spéeches of disgrace openly published to the face of an other or behind his backe be also firebrands of variance dissention fighting and the shedding of bloud and so be speciall meanes of the breach of the peace Action vpon the case for slaunder is contra pacem As it may partly appeare by the words of the kings writ alwayes inserted in an action vpon the case brought by one person against an other for speaking of slaunderous words in which writ it is supposed that the words were spoken Ad graue damnum ipsius querentis contra pacem nostram And the same is further proued by the words of the statute of An̄ 2. St. 2. R. 2. 5. R. 2. whereby it is ordeined That because publishing of false newes tales and lyes of Prelates Dukes Earles Barons Slaundering of Noble men or great Officers other noble and great men of the Realme or of the Chauncellor Treasorer Clerke of the priuie Seale Steward of the Kings house Iustice of the one Bench or of the other or of other great Officers of the Realme debate discord or matter of discord or slaunder may rise betwéene the Lords commons whereof great perill may come to the Realme and spéedy subuersion destruction of the same therefore it was enacted by the said statute That if any do commit the before specified offence he shall be taken imprisoned according to the statute of Westm̄ 1. St. 3. E. 1. 34. vntill he hath brought forth him which did speake the same St. 12. R. 2. 41. And further by an other statute made An̄ 2. R. 2. it was moreouer enacted That when the said offendor is taken imprisoned and can not find him that spake the words then he shall be punished by the aduise of the Councell And to the intent that such euill disposed persons which by their lewde spéeches slaunderous words or reports do indeuor to breake or disquiet the peace of the Realme Sta. 1. 2. P. M. 3. might the sooner be inquired of found out punished By a stat made An̄ 1. 2. P. M. it was further established That the Iustices of peace in euery shire citie towne corporat within the limits of their seuerall commissions shall haue full power to examin heare determine the causes abouesaid in the said 2. acts of 3. E. 1. 2. R. 2. specified to put the said 2. stat euery branch in them conteyned in due execution that condigne punishment be not deferred from such offendors And besides the before mentioned penalties assigned to be inflicted vpon transgressors by the foresaid stat euery noble man or great officer of the realme against whom any scandalous words 11. El. Dy. 285. Co. li. 4. 12. false newes or lies be spoken may prosecute against the offendor an action De scandalis magnatū recouer damages against him And in like sort may euery inferior person for any such like words of infamie spoken against him pursue an action vpon his case against the offēdor recouer his damages And further if one person shall exhibit a bill in the Starre chamber against an other amongst other things charge him with murder piracy robbery or other felony or to be a procurer thereof or accessory thereunto or with any other offence which is not examinable in the said court the defendāt in the said bil may prosecute against the complainant therein an action vpon the case recouer his damages for this bil was exhibited of malice by the complainant to remaine of record in the said court to the infamie slander of the defendant not to punish him for the said offences suggested in the sāe bil by a course of justice séeing the court of Starre chamber hath no authoritie to inquire of or punish the same offences But if the complainant doth suggest in his said bill of complaint any matter against the defendant which is examinable in the said court then no action vpon the case is maintenable against him by the defendant therefore though the matter surmised be méerely false for it is done in a course of justice Et sub iudice lis est whether the matters suggested be true or false vntil they be proued And in former ages spéeches tēding to the reproch of others were so odious that K. Edgar ordeined that his tongue should be cut out which did speake any infamous or slaunderous words of an other Edg. Lex 4. But though it be true as is aforesaid that infamous libels secret defamations or publick slanders or reproches be oft times more offensiue to the party taxed therby then open menaces and threates of violence are Yet séeing for the most part menaces springing out of distemperat cholericke humors do more hastilie break forth into further fury extremities tending to the breach of the peace then libelling secret defamation doe which must haue a breathing time to be inquired of bolted forth and then to be punished Therefore I will omit to write any further of libelling or defamation goe forward with menaces c. tota sequela sua 2 Menaces assaults batteries be things of seuerall natures yet for the most part they tend to one effect viz. to hurt him against whom they are bent menacing is a threatening of some hurt to be done or procured by the speaker or some other by his meanes to the person of the hearer or his wife seruant tenant or other The differēce of menace assault and battery whereby he receiueth losse or hurt Assault is an attempt to execute the thing menaced by force violence Battery is the performing of the thing before threatened viz. the beating
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
a Lords freeholder to plead That those tenants of the plaintifes which departed from their tenancies were the fréeholders and the fréehold tenants of the plaintifes and not his tenants at will For if it be so the plaintife shall recouer nothing against the defendant because hee hath other sufficient remedie to recouer the seruices of his fréeholders or the land in stead of thē And so it is to plead that the tenants which departed 21. H. 6. 31. were tenants for terme of yeares 6 In the cases aforesaid he that is wronged in his owne person his seruants or tenants by the menace of another whereby hée sustaineth losse shall haue his action of Trespasse against the offendor for the said menace and the hurt which he receiueth thereby and the king also shall haue a fine of the offendor for that the menace was of life and member and suggested to bee done vi armis and so tended to the breach of the peace But if it bée such a menace as doth not tend to the breach of the peace Menace which is iustifyable then the law is otherwise for then the partie menaced shall neither haue an action of Trespasse or other remedie against the menacer neither shall the king haue a fine of him As if a man dye seised of certaine lands and a stranger will abate 22. H. 6. 48 21. H. 6. 26. 9. H. 7. 7. and then the heire of him who dyed seised will enter vpon the stranger and menace and threaten him That if he will not depart from the possession of the same land that then hée shall repent it as the law will allow this is menace iustifiable for that he hath said no more than the law will allow him to performe And in like sort if A. be disseised of his fréehold eiected out of his terme of yeares Li. Intr. 555 dispossessed of his goods beaten assaulted or euill intreated by B. if in this case A. will say vnto B. That he will not endure those wrongs nor put them vp at his hands but will prosecute suit according to the law of the Realme in the sharpest maner that he can for the redresse of those iniuries and for the due punishment of B. this is menace iustifiable and nothing tending to the breach of the peace for A. hath said nothing but that the law will permit him to doe And in these cases the menacer doth yeeld to make the law iudge of his wrongs and that also in peaceable manner but in the former cases the menacer doth threaten to be the reuenger of his owne iniuries and so to be his owne iudge and that also in a forcible and vnlawfull sort And so it is if one man owe money to another and at the time assigned doth not pay if the creditor do say to the debtor that he will sue him according to the course of law 16. E. 4. 7. and imprison him for his debt this is menace iustifiable for the law doth allow him to doe it 7 As menace in words is accounted in many cases to be a meane of the breach of the peace and so punishable by the lawes of the realme so menace by deeds by behauiour gesture wearing of armour or vnusuall and extraordinarie number of seruants or attendants is accounted to be in affraie and feare of the people a meane of the breach of the peace and so punishable for the law doth intend that he which in a peaceable time doth ride or goe armed without sufficient warrant or authoritie so to doe doth meane to breake the peace and to doe some outrage seeing she is able and wil be alwaies ready to defend euery member of the common weale from taking or receiuing of force or violence from others if himselfe doe not giue cause to the contrarie Whereupon by a Statute made at Northhampton St. 2. E. 3. 3. anno 2. Ed. 3. it was enacted That no man great nor smal of what condition soeuer he be except the kings seruants in his presence his ministers in executing of the kings precepts or of their office and such as be in their companie assisting them and also vpon a Crie made for armes to keepe the peace and the same in such places where such acts happen be so hardie to come before the kings Iustices or other the kings ministers in doing their offices with force and armes nor bring no force in affraie of the peace nor to goe nor ride armed by day nor by night in faires markets Menace by going or riding armed nor in the presence of the Iustices or other ministers nor in no part elsewhere vpon paine to forfeit their armour to the king their bodies to prison at the kings pleasure And that the kings Iustices in their presence Sherifes and other ministers in their bailiwicks Lords of franchises their bailifs in the same mayors bailifs of cities boroughs within the same cities boroughs borough-holders wardens of the peace within their wards shal haue power to execute this act And that the Iust assigned at their cōming down into the coūtrey shall haue power to inquire how such officers Lords haue executed their offices in this case to punish them whom they find haue not done that which pertained to their office St. 7. R. 2. 13 20. R. 2. 1. And after by a statute made anno 7. R. 2. it was ordained That no Lord Knight nor other little or great shall go nor ride by night or by day armed nor beare sallet or skull of yron nor other armour vpon the paine of forfeiture thereof to the king except the kings officers and ministers in doing their offices And by the same statute it was also assented that none should ride or goe with Launcegaies Launcegaies beeing an armour defensiue then vsed in affraie of the people but that the same Launcegaies should be for euer put out 8 And shortly after the same Statute of 2. Ed. 3. was put in execution Wearing of a priuie coate for a knight was attached and arraigned in the kings Bench for that hee did weare armor vnder his vpper garment in the kings palace 24. E. 3. 33. and in Westminster hall who pleaded that there was debate betwéen him and another knight who did that weeke strike him and yet did menace him and that for feare of further perill and to saue his life hee did weare the same armour But this was adiudged no plea for the court did award that hee should forfeit his armour and be committed to the marshalsey And though he desired to be let to mainprise he was not admitted thereunto vntill the kings pleasure was knowne And the other knight his aduersarie was sent for into the kings Bench and there commanded vpon paine of all that he could forfeit that hee should not meddle nor doe any thing but that which was good to his said aduersarie Labourers shall weare no weapons
did loose his seruice it is a good plea for the defendant to say that he was not the plaintifs seruant or that he was the defendants seruant and not the plaintifs or that he was farmor tenant neighbor or soiourner with the plaintife and not his seruant or that the partie beaten was the plaintifs wife And in the said action of trespas of assault and batterie for the beating of his seruant 22. H. 6. 43. he néed not declare of the retainer of the same seruant for if he did but serue his master at his pleasure yet the master shall haue an action of trespas for the losse of his seruice 14 As the law doth allow a man to beat another in defence of his person Battery in defence of his goods from extreame peril so doth she tollerate one man to beat another for the preseruation of his goods from rapine and spoile for as it standeth not with the peace of the realme that one man without some lawful cause should beat another so it standeth not with the iustice of the realme that one man should take anothers goods iniuriously from him And he that will attempt by force and violence to take away another mans goods wrongfully from him 9. E. 4. 28. 19. H. 6. 31. 65. Kel p. 92. may iustly by force strong hand be resisted And if in that case he that shall make an assault to take those goods be in the encounter beaten by the owner of the same goods the law will excuse the owner therin protect him to defend those goods wherof he hath a lawfull propertie And the same law is if a man hath no propertie in goods but onely a possession by the bailement of another to bee redeliuered when they shall be required if in this case a stranger will assay by force to take the same away Lib. Intr. 553. he that hath the possession of the same goods though it be but a bloodhound may defend the same by force And if the said stranger shal be hurt or beaten in that assault he shall haue no remedy by action of trespas or otherwise against him that had the said possession for he may iustifie the defence of the goods so bailed vnto him in respect that he hath the lawful possession of thē and standeth chargeable to redeliuer them or the very value of them to him the bailed them vnto him whensoeuer he shall be required Battery in defence of his land lease or way And so it is if one hath a mill whereunto a riuer or spring of water doth run 3. H. 4. 9. and hath run time out of the remembrance of man and another would stop the course of that water turne it another way the owner of the mill doth disturbe him therein wherupon that other doth assault and attempt to beat him In this case if the owner of the mill for his owne safegard and for the defence of his auncient water course doth beat him againe it is iustifiable for this beating was not an intended breach of the peace but to defend him from violence offered to his person Lib. Intr. 554. 11. H. 6. 33. 10. E. 4. 6. and iniurie to his fréehold or terme And the same law is in euery case of batterie of another who doth menace or assault the right owner and attempt to beat him for the lawfull defence of his owne fréehold or terme or from his lawfull high way 9. E. 4. 3. 15 If one man do make assault vpon another attempting to beat him Battery inresisting a Iustice of peace so to breake the peace if a Iu. of peace do command him that maketh the assault to kéep the peace to surcease his assault he wil not do it or wil answer that he will not the Iust of peace may lay his hands vpon the offendor arrest him to find sureties of his good behauiour and if the offendor doe make rescue and resist the arrest by force and then be beaten hee shall haue no remedie against the same Iustice of peace who hath done nothing but that which belonged to his office and dutie and the offendor first in breaking the peace and after in resisting the Iustice of the Law being beaten by the Iustice of Peace or any other in his company hath worthily tasted the due reward of his owne disobedience And also the Iustice of peace may in this case commit the offendor to prison vntill he hath found sureties to kéep the peace A Iustice of peace may arrest one to find suretie of peace 21. H. 7. 22. 9. E. 4. 3. and though he doth let the same partie after to goe at libertie without finding suretie of peace yet he shall haue no action or other remedy to punish the same Iustice because he is Iustice of Record A schoolemaster beateth his scholler 16 In an action of trespasse of assault and batterie 21. E. 4. 6. Li. Intr. 555 it is a good plea for the defendant to plead that he is a schoolemaster and a teacher instructer of children and that the plaintife put himselfe to be scholler with him to be taught instructed in his booke and because the plaintife was carelesse and negligent in learning of that whereof he was instructed or did beat abuse other schollers his schoole-fellows the defandant did beat him with a rod as it was lawfull for him to doe A master beateth his prentice 17 And likewise in an action of trespasse of assault and batterie it is a good plea for the defendant to plead that he is a free man of the citie of London 21. E. 4. 6. 53. occupying the trade of a draper that the plaintife beeing aboue the age of xiiij yeares put himselfe apprentise vnto him to serue him in that trade by the space of vij yeares And because the plaintife was negligent in learning his trade he did strip him and beat him with a rod as it was lawful for him to do and if he did not sufficiently beat him for his offence at one time hee may beat him againe And in like sort if a villaine wil not be iustified by his Lord nor obedient vnto him it is lawfull for the Lord to chastise and beat him or to imprison him or to inflict any reasonable punishmēt vpon him so that he do not maihem or kill him for in the foresaid cases the schoolemaster master and Lord haue a ciuill power and authoritie ouer the scholler seruant and villaine Some doe hold that if an apprentice or seruant be aboue the age of xxj years and then do his seruice negligently that his master ought not to beat him therefore but to haue an action of couenant against him But note the forme of the Indenture of an apprentice touching chastising him And it appeareth by the Statute of 33. H. 8. 12. that the master may strike his seruant with his hand fist Stat. 33.
H. 8. 12. small staffe or sticke for correction and though he do draw blood S. Br. 28. Beating of a man that is franticke 18 If a man be franticke furious or mad 22. Assise p. 56. 22. E. 4. 45. and attempteth being at liberty to burne an house or to doe some other mischiefe or to hurt himselfe or others it is lawfull for his parents kinsmen and other friends to take him put him into an house to bind him and to beat him with rods to doe any other forcible act to reclaime him or to kéep him in a house or place alone where he shal do no hurt And he shall haue not action of trespasse of assault and batterie action of false imprisonment nor other remedie against them for in this case and the others before rehearsed the peace of the realme was not broken but a lawfull punishment was inflicted vpon those who had deserued it to the end they should be reformed and hereafter doe their duties the better Beating of one that will not yéeld to arrest 19 If one man do enter a plaint against another in a court hauing iurisdiction to hold plea of that suit 2. E. 4. 6. 21. H. 7. 39. and the Sergeant of the court doth arrest the defendant and the defendant will draw his sword to defend himselfe and after doth run away with intent to escape from the Sergeant if in this case the Sergeant and he that did enter the plaint do pursue him beate hurt him if he will not be apprehended and yéeld to the arrest they may iustifie the same in an action of Trespas of assault and batterie for they haue not broken the peace nor offended the Law in séeking to iustifie him who doth attempt to flie from the justice and indifferent triall of the law But if the partie had not béen arrested the Sergeant nor any other with him could haue iustified the beating of him 38. H. 6. 25. 20 In an action of Trespas of assault and batterie the defendant pleaded Beating of a seruant departing out of his seruice that the plaintife was his seruant retained departed out of his seruice and that he laid hold vpon him and led him home to his house to doe his seruice But this was adiudged no plea for it is not lawfull for the Master in this case to beate or forciblie to compell his seruant against his will to returne and do his seruice but to require him to do it and if he will not then the Master may haue an action of Couenant against his seruant and recouer so much in dammages as he hath receiued hinderance by the losse of his seruice But by the statute made AnÌ„ 5. Sta. 5. El. 4. Eliz. it is ordeined That if any seruant retained to serue in husbandry shall depart from his master mistresse or dames seruice before the end of his terme vnlesse it be for some reasonable and sufficient cause to be allowed by a Iustice of peace of the Countie or the Maior or other head officer of the Citie borough or towne corporat wherein the said Master mistresse or dame inhabiteth Or if any seruant at the end of his terme depart from his master mistresse or dames seruice without one quarters warning giuen before the end of his terme and before two lawfull witnesses Then vpon complaint made by the said Master c. to two Iustices of peace of the Countie or to the Maior or head officer of the citie borough c. they or any of them shall haue power to heare and examine the matter and finding the said seruant or the partie so refusing faultie in the premisses vpon such proofes and good matter as to their discretions shall be thought sufficient to coâ—mit him toward there to remaine without baile or mainprise vntill he shall be bound to the partie to whom the offence shall be made to continue with him for the wages limitted by this statute and then to be discharged vpon his deliuerie without paying any fée to the Gaoler where he shall be so imprisoned And as the Master cannot by beating nor by force compell his seruant 38. H. 6. 25. 21. Ass p. 85 to serue him against his will No more can a Lord compell his ward A Gardian may not beat his ward by beating or by force to come vnto him or to tarie with him against his will But if he doe depart from him then his Lord is to haue his action against him 22. Ass pla 59. 27. Ass p. 4. Fitz Trespas 238. 21 H. 6. 39. 21 If A. commaund procure or hyre B. to smite Commaundement of batterie or beate C. and he doth assault and beate C. in the presence of A. In this case C. may haue an action of Trespas of assault and batterie against A. and recouer dammages against him or against A. and B. together for here the peace was broken and wrong done to C. by the meanes and perswasion of A. And B. had not striken with his weapon if A. had not first striken with his tongue And the same law is if A. go to fight with C. and desireth B. to go with him and after doth méete with C. and doth assault and beate him In this case C. may haue an action of Trespas against A. and B. together or against B. alone though B. did not assault C. nor giue him any blowe and recouer dammages against him because he came in company with one that intended to breake the peace and to doe an vnlawfull act Hurting at some exercise 22 If two or more doe agrée together to runne at tilt iuste barriers Fitz. barre 244. or to play at backsword bucklers footebal or such like one of them doth beat bruise or wound an other the party grieued shal not haue an action of Trespas of assault batterie against the other for that it was a combate by consent put in practise to try their strength valour or agilitie not to break the peace But if the same day or some other after that the pastime is at an end they departed a sunder one will assault or beate an other in respect of some wrong conceiued to be receiued in the time of the said play then an action of Trespas of assault battery may be pursued by him that is so beaten against the trespassor Whipping of a Vagabond 23 In an action of Trespas of assault battery it is a good plea for the defendant to plead that the plaintif was by the stat made An. 39. St. 39. El. 4. El. intituled an Act for punishment of Rogues Vagabonds sturdy beggers declared to be a Rogue Vagabond or sturdy begger that he was taken begging vagrant misordering himselfe at L. in the County of N. that vpon his apprehension by the appointment of A. B. one of the Iustices of peace of the said County of N. or of the Constable Headborough or
Tithingman of the same parish of L. he was by this defendant stripped naked from the middle vpward and openly whipped vntill his body was bloudy And the same law is if any Iustice of peace Maior Bailife or other head officer shall commit any offendor which shall cut or vnlawfully take away any corne or graine growing or robbe any orchards or gardens or breake or cut any hedge pales railes or fence or digge pul vp or take vp any fruit trées or trées in any orchard garden or elsewhere to the intent to take cary the same away Or shall cut or spoile any woods or vnderwoods poles or trées standing not being felony by the lawes of this Realme Or shall be a procuror or receiuor knowing the same contrary to the statute therefore made An. 43. El. intituled Sta. 43. El. 7. an act to auoid and preuent diuers misdemeanors in lewd and idle persons shal be committed by a I. of Peace or by a head officer of a city borough c. to some Constable or other inferiour officer of the city borough Towne or Hamlet where the offence shall be committed or the partie apprehended to be whipped If in this case the said Constable or other inferior officer shall whip the same offendor vntill his body shal be bloudie the same offendor shall neither haue an action of Trespas of assault battery nor other remedy against the said Constable or officer for in the foresaid cases Punishments by the order of law in all other cases where an offendor is punished for petit Larceny by whipping for other offences by the pillorie the stocks the tumbrell or otherwise for any offeÌ„ce committed by him contrary to any of the lawes or statutes of the Realme there is no peace broken nor blame to be imputed to him or them which do execute that punishment for it is the iustice of the law which doth inflict those punishments vpon offendors for transgressing the law the executioners of those punishments be but the instruments of the law as the axe is in the Carpenters hand Battery for disobeying of a writ or warrant 24 In an action of Trespas of assault battery 21. H. 7. 39. Fitz. Trespas 108. it is a good plea for the def to plead that he had a warrant to arrest the plaintife and that by force of that warrant he did arrest him then the plaintife made assault vpon him therefore the hurt which he receiued was by his own assault for euery subiect is bouÌ„d to obey the K. writs all mandates precepts warrants awarded by his Iustices shirifes and officers sufficiently authorized And he that doth resist them or denyeth to obey them encountreth the iustice of the law and therefore the beating of him who refuseth to submit himselfe to the obedience of the Law is no breach of the peace but a meane to performe the law 25 Though the Law hath a regard to preserue peace betwéen all persons and in all places and caryeth a vigilant eye that one person shall not menace assault beate maihem or imprison an other but in certaine cases and for some speciall causes and imposeth an heauie burden vpon such as shall breake that peace by any of the meanes aforesaid Yet she hath a more speciall respect to some ceraine places to some tymes and to some persons and caryeth that reuerend and due care and consideration of them that she inflicteth a more sharpe and bitter punishment vpon such as shall violate the peace in them or to the offence of them And therefore for the auoiding of the disturbance of the peace in the Church where God is to be honoured and all peace to be preserued and to continue peace to preists clerks and others whilest they are dooing diuine seruice There was a statute made Anno 50. E. 3. and after rehersed and continued Anno 1. Sta. 50. E. 3. 1. 1. R. 2. 15. R. 2. whereby it was enacted That if any of the Kings officers or other person doe arrest any priest clerke or other Arresting one in a Church dooing diuine seruice which is doing any diuine seruice in the Church Churchyard or other place dedicated to God he shall be imprisoned and punished at the Kings pleasure and further shall recompence the partie arrested But no people of the Church shall kéepe them within the Church or Sanctuarie by fraud or â—ellusion 26 And because it is most necessarie in euery Christian common weale to prouide that peace and tranquility may be preserued and continued among the people and specially in holy Church in the time of diuine seruice and preaching and that all things being contrary thereunto or that are or may be in disturbance thereof may by forsight be eschewed and auoyded and remedy therefore prouided Sta. 1. M. 3. By a like statute made Anno 1. Reg. M. it was ordeined That if any person of his owne authoritie Disturbance of a preacher in his sermon shall willingly and of purpose by open words or déeds maliciously or contemtuously disturbe or by any other vnlawfull wayes disquiet or misuse any Preacher allowed to preach by the Quéene or by any Archbishop or Bishop of this realme or by any other lawfull Ordinary or by any of the Vniuersities of Oxford and Cambridge or otherwise lawfully authorized or charged by reason of his cure benefice or spirituall promotion or charge in his open sermon preaching or collation that he shall preach or pronounce in any Church Chappell or Churchyard or in any other place vsed or appointed then euery such offendor his aydors procurors or abbettors immediatly after any of the said misdemeanors committed or at any time after shal be arrested by any Constable or Churchwarden of the said parish towne or place where the said offence shal be so committed or by any other officer or by any other person then being present at the time of the said offence and carried to any Iustice of peace within the said shire or within any City borough Libertie or towne corporat wherein Iust of P. be where the said offence shal be so committed And the said Iustices vpon due accusations thereupon made by the apprehendor or other person of the offendor forthwith shal commit him to safe kéeping within 6. days immediatly after the said accusation so made the said Iust with one other Iust of P. within the shire city borough liberty or town corporat shal diligently examin the offence aforesaid And if the said two Iustices shall vpon their examination find the person so accused guiltie of any of the said offences whereof he shall be accused and that by two sufficient witnesses or by his confession then they shall commit him to the Gaole of the said Shire City Borough c. where the offence was committed there to remaine without baile or mainprise by the space of thrée moneths then next ensuing and further to the next quarter sessions c.
Leges Aluredi cap. 7. That if any man did strike or draw a weapon of iron to strike in the Kings pallace the King might it he pleased put him to death 29 Because they which vpon the Kings commaundement do come to his councell or vpon his summons doe resort to his Parliament doe make their repaire thitherto further the wealth and peace of the Realme it hath béen therfore thought reason that during the time of the said councel Parliament they should not be depriued of that peace which they endeaour to procure to others and themselues Assault vpon one which cōmeth to the Parliament Wherefore by a Statute made Anno 11. H. 6. Stat. 11. H. 6. 11. it was ordeined That if any assault or fray be made vpon any Lord Spirituall or Temporall Knight of the Shire Citizen or Burgesse which commeth to the Parliament or to the Kings Councell by his commaundement and there being and attending then Proclamation shall be made in the most open place of the Towne where the fray was made by thrée seuerall dayes that the partie which made such affraye or assault shall yéeld himselfe in the Kings Bench within a quarter of a yeare next after the Proclamation made if it be in the Terme tyme or otherwise at the first day of the Terme following the said quarter And if he doe not he shall be attainted of the deede and pay to the party grieued his double dammages to be taxed by the discretion of the Iustices of the same bench or by the inquest if it be needfull and shall make fine and ransom at the Kings pleasure And if he come and be found guiltie by inquest by examination or otherwise of such affray or assault then he shall pay to the partie grieued his double dammages found by the inquest or to be taxed by the discretion of the said Iustices and make fine and ransom at the Kings pleasure Assaulting the seruant of a Parliament man And by the Statute made Anno 5. H. 4. it was enacted St. 5. H. 4. 6. That he shall haue the like punishment which maketh assault or fray in the Parliament tyme vpon any meniall seruant of any Knight of the Parliament Citizen Burgesse c. which doth come to the Parliament with his master The libertie of the Clergie as a conuocation And by the Statute of Anno 8. H. 6. it was prouided St. 8. H. 6. 1. That al the Clergie which be called to the conuocation by the Kings writ and all their seruants and familiars shall fully vse and enioy such libertie or defence in comming tarying and returning as the great men and Commons of the Realme haue or are wont or ought to enioy which are called to the Parliament 30 Séeing the wealth and peace of the Realme doth chiefely consist in the due execution of Iustice which cannot be ministred without méete persons and places ordeined therefore for that cause the Law hath specially prouided that those persons and places which be designed to the same Administration of Iustice shall be so guarded and protected from force and violence offered vnto them or in them that shee hath inflicted déeper and more greiuous punishments to those who shall breake or disturbe the peace in the presence of those Magistrates or in those places than to them who shall breake the peace in the Kings own pallace where he is in person abiding or in the Parliament time ordeined for the making of Laws Assaulting a Iudge or Iuror And therefore it hath bene adiudged 22. Ed. 3. 13. That if one draw his sword to strike a Iustice assigned sitting in place of iudgement and be thereof found guiltie he shall forfeite his lands and chattels and haue his right hand cut off And likewise if one in the presence of the Iustices doe strike a Iuror he shall forfeite his lands and goods haue his right hand striken off and be committed to perpetuall prison And the same Law is if one of the Kings Iustices assigned doth arrest any person which hath made a fray before him and a straunger will rescue that prisoner whereby he doth escape in this case as well the prisoner as he that made the rescous shall be disherited and be perpetually imprisoned for that the attachment of such a Iustice is the Kings owne attachment in the construction of the Law Striking in time or place of Iustice And if one doe strike an other in Westminster Hall Fitz Cor. 280. 2. 3. P. M. Dy. 188. during the time that the Kings Courts do sit hee shall forfeite to the King his lands and goods haue his right hand cut off and bee committed to perpetuall prison 4. H. 7. 2. 31 In an action of Trespas of assault and batterie the defendant pleaded Arresting by watchmen that there were diuers felonies committed in those parts where he dwelt and he being watching in his house came into the high Stréete where the plaintife was at eleuen of the clocke in the night and the defendant came vnto him and laid his hands in peaceable maner vpon him to sée his face and when he perceiued that he was a true man he left him departed which was the same assault and batterie And this was allowed to be a good iustification for by the statute of Winchester watchmen may arrest Nightwalkers and also may appose them from whence they come and what they be but they must be such watchmen as be appointed by the Towne And so euery man may arrest Nightwalkers for it is for the good of the Common wealth The same law is in an action of Trespas brought of the assault and batterie of his seruant 4. H. 7. 18. 5. H. 7. 5. 2. Ed. 4. 8. whereby he did loose his seruice 3. daies and the defendant pleaded that A. was robbed at midnight of goods to the value of xl s̄ whereupon the said A. came to the Constable and prayed him to search for suspicious persons and to apprehend and arrest them and accordingly he did search and found the same seruant walking suspiciously in the stréete in the night and therefore he would haue arrested him but the said seruant fled and would not yéeld to the arrest and the defendant by the Constables commaundement pursued and tooke him This was adiudged a good plea in barre for when a felonie is committed the Constable or any others may arrest suspitious persons and if any that is arrested will not yéeld but assault him or them that do arrest him they may iustifie the beating of him for that he doth resist the peace and iustice of the Realme when he doth forciblie striue to flie and not to be iustified by it 30. Ed. 3. 4. 29. Ass p. 63. 28. Ed. 3. 92. 6. H. 4. 7. 32 If a man be assaulted and beaten Trespas for batterie before outlawrie and then be outlawed in an action of Trespas and after doth purchase his
Charter of pardon which is allowed he may haue an action of Trespas against the offendor for the assault batterie made before the Outlawrie for the said outlawrie shall not extinguish his action nor cause that offence which before was punishable to be vnpunished And if the partie beaten should not haue his Action the iniurie done vnto him should be vnpunished for the King shall haue no remedy to recouer damages for this batterie done to the person of him that was outlawed 29. Ass p. 47 63. as he might haue had if any debt had béen owing or any goods had béen taken from the outlaw before his outlawrie And the Law doth expect that for the peace broken and the wrong done to the partie grieued the same partie shall vpon his action of Trespas brought be recompenced by the recouerie of his dammages and the king satisfied for his peace broken by a fine 11. H. 4. 65. 9. H. 6. 60. 27. Ass p. 57 33 In an action of Trespas of assault and batterie A man first indicted of batterie and after sued for the same trespas the defendant pleaded not guiltie the plaintife replied that the defendant was before that time indicted before the Iustices of Peace of the same Countie of the said assault and batterie and thereupon proces was awarded against him for the kings fine who then appeared and pleaded that the hurt which the plaintife receiued was by his owne assault and thereupon they were at issue and before the verdict the defendant appeared and confessed the Trespas and submitted himselfe to the Kings fauour and made his fine and demaunded iudgement if he should be allowed to plead not guiltie contrarie to his owne confession and this was adiudged a good Replication and an Estoppell of the said plea in barre And then the defendant pleaded that the hurt which the plaintife receiued was by his owne assault vpon which plea the plaintife demurred séeing the defendant before had pleaded that plea against the King And then he also waiued that plea and confessed the trespas whereupon a writ was awarded to inquire of dammages And so for this assault and batterie the king was first intituled to a fine by the Indictment and after the partie grieued recouered dammages by an action of Trespas 34 Imprisonment is where a man is arrested by force against his will and is restrained of his libertie What imprysonment is and put in a common Gaole or other gaole Lib. Intrac fol. 319. in a cage or in the stockes or otherwise kept in the high streete or open field if he be in restraint and cannot go at libertie when he will but is bound to become obedient to the will of the Law and is in the custodie of the Law And in all the cases aforesaid the partie so restrained is said to be a prisoner so long as he hath not his liberty fréely to go at all times when he will without baile mainprise or other restraint And therefore if one person do arrest imprison or otherwise restraine an other person of that libertie without sufficient and lawfull cause the partie grieued may haue an action of False imprisonment or an action of Trespas against him that doth so arrest An action of False imprysonment or imprison him and recouer damages against him And the King shall also haue a fine of him for that his law is contemned and his peace is broken in that one of his subiects presumeth to imprison an other without sufficient warrant of him or his law seeing imprisonment of an other by only act will or commaundement without offence of the Law is one of the kings most royall prerogatiues and only annexed to the maiestie dignitie and imperiall Crowne of this Realme For by the Statute of Magna charta it was specially ordeined Stat. 9. H. 3. 29. That no man shall be taken or imprisoned or disseised of his fréehold or liberties or frée customes or be outlawed or exiled or any other wayes destroyed neither shall any passe or fit in iudgement vpon him but by lawfull iudgement of his Péeres or by the Law of the land And by the statute of AnÌ„ 28. Ed. 3. it was enacted Stat. 28. Ed. 3. 3. That no man shall be put out of his land or tenement nor imprysoned nor disherited nor put to death without being brought in aunswere by due proces of the Law And therefore whereas the Maior and Burgesses of a towne corporate being before authorized by the Kings letters patents to make ordinances for the good gouernment of the same Towne did condiscend amongst themselues Co. Lib. 5. 64. to leuie a summe of money for the charges of a lawfull and necessarie act to be done in the same Towne and did further agrée that if any of them did refuse to pay his part of that contribution money so assessed to be paied that then he should be committed to pryson vntill he had paid it and after one of the Burgesses of the Towne which before had agréed to the same assessement ordinance Voluntarie consent no cause of imprysonment refused to pay the money which he was by the residue assigned and assessed to pay whereupon the Maior of the same Towne committed him to pryson against whom the same Burgesse brought his action of False imprisonment and recouered dammages against the same Maior for though the same Burgesse all others of the same Corporation might haue submitted himselfe to haue paid a summe of money to haue béen leuied by distresse or action of debt if he or they had not performed the same order paid his part of that contribution yet the libertie or impriâ—onment of his bodie resteth in the censure iudgement of the Law and not in his owne disposition As if B. do promise C. or be bound by Obligation vnto him that if he do not paie vnto the same C. xx li. within sixe monethes that then C. shall take and impryson him vntill he hath paid it notwithstanding B. do not pay to C. the same xx l. at the time assessed C. may not imprison B. for it though it was his owne promise agréement or bond for that B. is not iudged by his péeres or condemned by the law of the land according to the foresaid statute of Magna Charta Neither is he brought to answere by due Proces of the law according to the purport of the before specified statute of An 28. E. 3. 35 But in many cases one person may arrest ImprisonmeÌ„t by the commaundment of the King his Iustices c. imprison and restrayne an other of his libertie and no action of false imprisonment action of Trespas or other remedie will be had against him As first it is a lawfull imprisonment which is done by the absolute commaundement of the King the chiefe Soueraigne head of the common weale by his owne mouth or by the priuie Councell which speake and direct by his Authoritie or by
other vnlawfull act prohibited by that statute and being required by a Iustice of peace or shirife of the said County or by the Maior or chiefe officer of the city or towne corporat to returne to their inhabitations do not but attempt to put in vre any of the said things Then euery of the same persons shall be imprisoned one yeare without baile or mainprise for the offendors in both the cases aforesaid putting in practise their outrages with a multitude of persons bee great disturbers of the peace and Transgressours of the law 21. H. 6. 5. 39 In an action of False imprisonment Imprisoning him that holdeth land with force the defendant pleaded that the plaintif held the manor of D. by force and B.C. a Iustice of peace of the same County did take him recorded the force and sent him to the defendant being Gaoler of the same County to be imprisoned and this was allowed a good iustification though he was committed to prison but by one Iustice of peace And in like sort if the action of false imprisonment had bin brought against the Iustice of peace who committed the offendor to warde the same had béen a good plea in barre for him St. 8. H. 6. 9. for that the statute of AnÌ„ 8. H. 6. doth warrant him so to do giueth that authority to one Iustice alone or to more then one 29. Ed. 3. 9. 5. H. 7. 4. 40 If a Huy and Cry be leuied and pursued that a horse of such a colour or marke so many beasts of such a sort or age Imprisoning of one pursued by Huy crie or so many shéepe of such a brand be stolen one is taken leading or driuing of the said horses beastes or shéepe it is lawfull for any man to apprehend and stay him and to commit him to the Constables of the Towne where he is apprehended and by them to be put into the stockes or safe kept vntill he be deliuered by due course of law though he be not of euill fame or name but a man of good credite for séeing the law by the Huy and Cry hath accused him by a course of law he must be againe acquited and discharged And in this case he that is so taken though he be after acquit of the felony shall not haue an action of Trespas false imprisonment or other remedy against him that did apprehend him Fitz. barre 202. 3. H. 4. 9. 41 In an action of Trespas of assault battery and imprisonment Imprisoning him that doth breake the peace the defendant pleaded that the plaintife menaced to kill him and therefore he requested the Constables to arrest the plaintife to find suerties of his good abearing and the Constables and the defendant with them did come and arrest him and put him into the stockes vntill he did finde suerties and this was allowed to be a good iustification 5. H. 7. 6. And in like sort if one do make an assault vpon a Constable the same Constable may arrest and imprison him vntill he hath found suerties to kéepe the peace though the Constable be the same person vpon whom the said assault was made for in this case he doth nothing but preserue the peace and obserue the Law which is to be done aswell in his own case 13. H. 7. 10. as any others And moreouer if a Constable be informed that a lewd man is in a suspected house with a woman of euill name for incontinencie he may take so many of his neyghbors with him as he will Arresting suspected persons and arrest the said man and woman to find suerties of their good behauiour And they nor eyther of them shall haue any action of False imprisonment or other action therefore against the said Constable or any other of his assistants for the Constable was ordeyned to kéepe the peace 10. Ed. 4. 17. and to represse felons And he may take suertie by Obligation if he find any commiting of a fray but vpon no penaltie And if the partie will not find suerties the Constable may impryson him vntill he hath found suerties 9. Ed. 4. 26. 42 In an action of Trespas of assault battery and imprisonment Imprisoning him that doth attempt to rob the defendant pleaded that the plaintife lay in waite in a high way leading from the towne of A. to the towne of B. to rob such persons as trauailed in that way and assaulted to rob one L. and drew his sword and commaunded the same L. to deliuer his purse whereupon L. fled and leuied Huy and Cry and this defendant being trauailing that way pursued the plaintife and tooke him and committed him to the Constable to be put in the stockes who did it accordingly and this was adiudged a good iustification for euery man may arrest and imprison him that doth commit a felony or him who maketh it apparant that he doth intend and goe about to commit a felony for that he doth manifest him selfe to be a principall breaker of the law and peace of the realme Assisting to arrest by warrant 43 In an action of false imprisonment against two 19. H. 6. 43. 56. one of them pleaded that he had a precept to arrest the plaintife which he did accordingly And the other defendant pleaded that he came in company with the other to ayde and assist him to arrest the plaintife And this was allowed a good Iustification in them both for any straunger may assist a Sherife his Baylifes or any other that hath authority to execute the Kings writs or proces and he that wil not assist him being required shall paie a fine to the King And the Sherife may take as many persons as he will to aide him to execute the Kings writs 3. H. 7. 1. 17. E. 4. 5. for it is in furtheraunce of Iustice and no breach of the peace Breaking a house to arrest 44 If a man be indicted of Trespas 27. Ass pla 35. 18. E. 4. 4. and a Capias pro fine awarded to the Sherife to take the body of the same person The Sherife may breake open his house or close to arrest and imprison him it is a lawfull imprisonment But the Sherife may not breake any house or chest to make execution by vertue of a fieri facias to him directed S. Force 32. The Sherife arreâ—eth and doth not retorne his writ 45 If the Sherife haue a Capias to arrest a man and he doth arrest him and after doth not retorne his writ the partie arrested may haue an action of false imprisonment against the Sherife and recouer damages for his wrongfull arrest or Imprisonment for the Capias is ita quod habeas corpus cius c. and so if he haue not the parties body in the Kings Court at the day of the retorne of the writ it shall be intended that he did not arrest him by force of that writ nor according to the
purport of it but of his owne wrong But if the Sherifes Baylie doe arrest the man 11. H. 4. 58. 21. H. 7. 22. and the Sherife doth not retorne the writ the partie arrested shall not haue an action of false imprisonment against the Bailie for the Sherifes offence shall not preiudice the Baylie and the Baylie can not compell the Sherife to returne the writ for a Shirife or a Bailie errant which is knowen and sworne may arrest a man without shewing his warrant A knowne officer may arrest without shewing his warrant for euery man is bound to take knowledge of them But where the Sherife doth make a precept to an other to arrest he must shew his warrant 21. H. 7. 22. 11. H. 4. 36. And if a Capias be awarded to the Sherife without an originall to take a man and he doth take him yet the partie grieued shall not haue his action of false imprisonment against the Sherife for that he did it by warrant of the Kings writ Arresting a man by a Capias without an originall for it is a good plea in an action of False imprisonment to say that he is Shirife of the Countie of M. and that he did arrest the plaintife by force of a Capias directed to him which is the same imprysonment 22. E. 4. 47. Arresting vpon suspicion of felony 46 In an action of False imprisonment 7. H. 4. 35. 27. H. 8. 23. it is no plea for the defendant to plead that it was told him that the plaintife had brought cattell to the towne and put them in a blind corner and that there was great cause of suspicion that the plaintife had stollen them whereupon he did arrest him for suspicion only without a felony committed is no cause to arrest an other But if a felonie be done in those parts and one doth suspect an other to haue committed the same felony then he may arrest him for a Iustice of peace can not arrest an other of suspition of felonie 14. H. 8. 16. vnlesse he himselfe doth suspect him to haue committed felonie And somuch an other may doe that doth suspect one to haue committed felony viz. if he himselfe doth suspect him to haue committed the felony The common voice fame of the countrey cause of suspition The common voyce and fame of the Country is a great cause of suspition of felony where a felonie is committed 2. H. 7. 15. 5. H. 7. 4. 11. E. 4. 4. And therefore in an action of false Imprisonment the defendant pleaded that there was a felonie committed and the common voyce and fame of the Countrie was that the plaintife was a man of euill behauiour and had done the same felony whereupon he that was robbed came to the Constable and requested him to arrest the plaintife and the Constable came to the defendant and desired him to assist him to arrest the plaintife the which he did and they arrested him And this was allowed a good iustification and sufficient cause to arrest the plaintife séeing there was a Robbery committed and the common voyce and fame of the Countrie accused the plaintife thereof 5. H. 7. 4. And in like sorte in an action of false imprisonment the defendant pleaded that I. S. was poysoned and that the common voyce and fame of the Countrie was that the plaintife had poysoned him whereupon the defendant apprehended the plaintife Suspected of poysoning and committed him to prison as it was lawfull for him to doe And this was also adiudged a good Plea in barre of the said action for séeing a felony was committed and the common voyce and fame of the Countrie had accused the plaintife thereof euery person who him selfe hath suspition that the plaintife hath committed the same felony may arrest him thereof And so it is if in an action of false imprisonment the defendant doe pleade that before the imprisonment A. B. was slaine at C. and the plaintife was in the company of those who killed him at the time of the felony committed 7. Ed. 4 10. 7. Eliz. Dy. 236. Suspected of Manslaughter and the common voice and fame of the Countrie at C. was that the plaintife was partie to the felonie whereupon the defendant found the plaintife at C. and arrested him for suspition of felonie and committed him to the Sherife which is the same imprisonment And this was allowed a good and sufficient Plea and not double though the defendant did alledge the common voice and fame of the country and the being in company with those that killed A. B. for where a man doth iustifie for suspition of felonie he may shew as many causes of suspition as he can And it is a good cause of suspition to say Causes of suspition that huy and crie was leuied after a felony committed and that the plaintife was a man suspected Or to say that the plaintife was a vagarant exercising no trade to get his liuing by and no laborer Or to pleade that parcell of the goods stollen were taken in the possession of the plaintife 38. Ed. 3. 6. 10. H. 7. 20. 47 In an action of false imprisonment Arresting vpon doubts of Manslaughter the defendant pleaded that the plaintife had so beaten and wounded an other man that he was in great perill and daunger of death and that vpon the same huy and cry was leuied whereupon the defendant being Constable did arrest and imprison the plaintife foure dayes vntill it might be knowen whether the partie wounded were like to liue or dye and when he perceiued that the partie beaten was like to liue he did let the plaintife go at libertie and this was adiudged a good plea in barre 24. Ed. 3. 9. And in the like case in an action of False imprisonment brought against one the defendant pleaded that the King had directed a Commission to certaine persons to apprehend those that were notoriously slaundered for felonies or great trespasses notwithstanding they were not indicted thereof and that the plaintife had most dangerously wounded I.S. whereupon the Commissioners directed their warrant to the defendant to apprehend the plaintife which he did accordingly And this was allowed a good iustification and the plaintife was barred of his action for in both these cases the peace was broken and at the time of the arrest it was vncertaine whether the offence would proue felonie or not A Iustice of peace warrāt to arrest a felon 48 In an action of False imprisonment the defendant iustified 14. H. 8. 16. for that a Iustice of peace directed a warrant vnto him to arrest the plaintife for felony which he did And it was holden that a Iustice of peace cannot make a warrant to arrest a Felon vnlesse he be indicted for he is a Iudge of record and he must haue a record whereupon hee doth award his proces But if a Bailife serue his warrant it is a
fine ImprisonmeÌ„t for offences done to the iustice of the Realme 57 As in the cases aforesaid imprisonment of offendors is both tollerable requisit when it is inflicted for misdemeanors done to the peace of the Realme so in many other cases it is as necessary when it is imposed for offences done to the law justice of the Realme being the foundation principall piller of the same peace and without the due execution whereof there can not be a general and perfect peace And amongst many other transgressors who doe offend contrarie to the justice of the Realme and yet in a sort doe preserue the peace the law doth principally note foure kinde of persons worthy for their offences to be imprisoned Whereof the first be they who doe commit some acts that be wrongfull iniurious and prohibited by the common lawes or Statutes of the Realme The second be they who doe attempt and prosecute vniust and wrongfull actions or suits to molest trouble or charge others The third be they who being impleaded vpon iust and good causes doe plead false or dilatorie pleas in retardation of justice and hinderaunce of the due and ordinarie course of the law The fourth be they who vpon stubbornesse contumacie or wilfulnesse refuse to doe that whâ—â—â— they know the law doth require at their hands and may enforce them vnto of euery of which amongst many I will insert some fewe cases ImprisonmeÌ„t for coÌ„mitting vnlawful acts As to the first by the Statute of Anno 5. Sta. 5. El. 14. Eliz. he shall be imprisoned and set vpon the pillorie who doth falslie forge or willingly assent or cause to be forged or made any false déede charter or writing sealed Forging of deéds Court Roll or the will of any person in writing S. Forgery â— to the intent that the estate of fréehold or inheritance of any person in any lands should be recouered or charged c. for forging of déeds is an iniurious and wrongfull act and alwaies hath bin hated detested and persecuted in this Realme Sta. 13. E. 1. 11. By the Statute of Westm 2. If the master do assigne auditors to any Bailifes Seruants Chamberlaines or other receiuors which are bound to yéeld accompt Accomptants found in arrerrages and it chaunce them to be found in arrerages all things being to them allowed they shall be arrested and by the testimonie of those auditors committed to the next Gaole which the King hath in those parts and shall be receiued by the Sherife or his Gaoler and prisoned fettered in irons liuing of their owne goods vntill they haue fully satisfied their master of all the arrerages for detayning of the arrerages of an accompt is a plaine and manifest wrong to the master 27. H. 6. 8. And this imprisonment must be presently after the accompt taken Disseison contrarie to his owne lease and not any distance of tyme after And he that doth a disseisin or maketh an entrie contrarie to his owne déede 14. Ass pla 12. Or is conuicted for the imbeziling of an Exigent or for some other notorious deceits committeth open and manifest iniurie and therefore shall be imprisoned 8. Ass â— 20. 28. Ass pla 28. If one man do make a lease of a Tenement by writing to an other for terme of life of the lessée whereupon the lessée doth enter and enioyeth it and after the lessor doth enter and disseise the lessée for life and then the lessée do bring an Assise against the lessor and recouer against him the Tenement leased in this case the same lessor shall be imprisoned for that he made an entrie contrarie to his owne deede and so willingly committed an open and manifest wrong 18. Ass p. 3. The same law is if a man do make a disseisin of land of his whole title wherein he hath before made a release or confirmation to the tenant of the same land in this case he shall be imprysoned And if a Gardian do take a feoffement of his wardes land being within age Fitz. Assise 395. he shall be imprisoned therefore for this and all the former be iniurious acts and knowen to the offendors to be prohibited by the law As touching the second point they be also worthy to be imprisoned who do attempt or prosecute vnlawfull suits to the trouble vexation of others As if one do bring an Appeal against an other 50. Ed. 3. 1. Imp. for prosecuting vnlawfull suits and that appeal do abate by the plaintifes nonsuit or by any other default of his he shall be imprisoned A woman brought an Appeal of the death of her husband against one 9. H. 4. 2. who was attainted and hanged at her suit and after shee brought an appeal against an other man of her said husbands death who pleaded the attainder of the first man in barre whereupon the appeal was abated and the woman committed to pryson for her wrongfull vexation and suit A woman brought an appeal against a man of the death of her husband 8. H. 4. 18. and her said husband was brought into the court and shée was examined if that were her husband who said yea but shée supposed that he had béen dead and therefore shée was imprisoned for her false appeal If one do bring an appeal against an other for a Murder Burglarie Robberie or other felony committed in W. in the County of N. and there is no such W. in that County the appeal shall abate and the plaintife shall be imprisoned for it is manifest that this suit was commenced vpon malice and to put the defendant to vexation and trouble and not vpon any iust cause Thirdly they are worthy to be imprysoned who do plead false Imp. for false or dilatory pleas or dilatorie pleas in hinderance of suits and retardation of justice As if a man in his plea do denie his owne deed 33. H. 6. 54. 45. Ed. 3. 11 6. Ass p. 4. 24. E. 3. 74. Sta. 34. Ed. 1 or do plead a false déed made to himselfe which is found against him by verdict or do plead a déed that is rased enterlined or otherwise suspicious that is adiudged against him he shall be imprisoned By the statute intituled De coniunctim feoffatis if the tenant in Assise do plead iointenancie of the land in demaund with his wife ImprisonmeÌ„t for false pleading of iointenancie or a stranger and sheweth a déed to testifie the same to the intent to abate the plaintifes writ and if it be found by the Assise that the exception was maliciously alleaged to delay the plaintifes right the said tenant shall be one yeare imprysoned though the assise passe for him against the plaintife And if that tenant in the assise be an Enfant who doth plead iointenancie yet if that plea be found against him 37. Ass pl. 1. he shall be imprysoned for that the said statute is generall 3. H. 6. 51. St. 13.
to the plaintife was of the plaintifes owne assault and in defence of the defendant Iustifiing in his owne defence And likewise it is a good plea in barre in an appeall of maihem for the defendant to plead the plaintifs release made vnto him after the supposed offence done of all actions personals or of all actions The plaintifes release or of all appeales or of all demaunds for in this case the plaintife is but to recouer dammages 7. H. 4. 30. 66 If an appeal of maihem be brought against diuers Execusion in appeal of maihem one of them doth appeare in court and confesse the maihem and is committed to the Marshalsea and the plaintife hath iudgement against him he can not sue against the residue vnlesse he will suffer him that hath confessed the maihem to goe at liberty for if he hath iudgement and the body of him who confessed the maihem to remaine in prison that shall be an execution for this whole maihem 67 The Sages and Iudges of the land in former ages did hold it for law An action of Trespas after an appeal of maihem that if one doe assault Fitz. Coron̄ 110. 22. Ass p. 82 beate and maihem an other and the partie maihemed doth bring an appeall of maihem against the offendor and recouer dammages against him yet after he may haue an action of Trespas of assault and battery against the same offendor and recouer dammages for his beating and the recouerie of dammages in the appeal of maihem shal be no plea in barre against the plaintife for the appeal doth only medle with the maiheming not with the beating But if the plaintife do bring an appeal of maihem in the Kings bench 43. Ass p. 39 and after apparance be nonsuit in the same and then doe bring an action of Trespas of assault and batterie for the same fact Then the defendant may plead the same appeal and nonsuit in barre against the plaintife and it is a good plea. 41. Ass p. 16 Co. Lib. 4. 43. But of late yeares viz. An̄ 31. Eliz. it was adiudged that in this and all cases when the plaintife for one wrong and iniurie is but to recouer dammages he shall not be for that cause satisfied twice for one offence And in these two actions of appeal of maihem and trespas the plaintife shall onely recouer dammages And therefore it was adiudged a good plea in barre in an appeal of maihem to plead that the plaintife had before brought an action of Trespas against the defendant of assault battery wounding and had recouered dammages therein and to auerre that the same assault batterie and wounding and this maiheming were all one offence 68 As the law hath prouided remedies to punish those who by menace Restraint of affraies by Iustices of peace assault battery imprisonment or maiheming do breake the peace So hath it alwaies had a vigilant eie by anticipation to preuent many others that would breake the peace by any of the meanes aforesaid and therefore hath from age to age appointed méet magistrates and watchmen to whose charge specially as selected Sentinels she did commit the preseruation of the peace who in times past before the raigne of King Edward the third were called Conseruators of the peace Stat. 1. E. 3. 26. and sithence they haue béen termed Iustices of peace because they be Iudges of record or otherwise they be named Commissioners of the peace because they haue and deriue their authority by the Kings Commission who him selfe being the chiefe and generall Conseruator and Preseruer of the peace throughout all his Dominions doth by his seuerall Commissions commit some particles of his authoritie touching the continuance of the peace and maintenance of certaine of his Lawes to some chiefe and select men in all the parts of the Realme whom he taketh to be the most méete men for the same in respect of their integritie wisdome learning courage and liuelyhood The forme of so much of which Commission as toucheth the Peace and good Abearing is this Iacobus c. praedilecto fideli Conciliario nostro Thomae domino Elsmere domino Cancellario nec non praedilectis A.B.C.D.E.F.G. H.I.L.M.N.O.P. c. The Commission of the Peace Sciatis quod assignauimus vos coniunctim diuisim quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro buck conseruand ' ac ad omnia ordinationes Statuta pro bono pacis nostrae ac pro conseruatione eiusdem pro quieto regimine gubernatione populi nostri aedita in omnibus singulis suis articulis in dicto comitatu nostro tam infra libertates quam extra iuxta vim formam effectum eorundem custodiend ' custo dire faciendum Et ad omnes contra formam ordinationū vel Statutorum illorum aut eorum alicuius in comitatu praedicto delinquentes castigandū puniendum prout secundum sormam ordinationū Statutorū illorum fuerit faciendum Et ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorū suarum minas fecerint ad sufficientē securitatem de pace vel bono gestu suo erga nos populum nostrū inueniendam coram vobis seu aliquo vestrum venire faciendum Et si huiusmodi securitatem inuenire recusauerint tunc eos in prisonis nostris quousque huiusmodi securitatem inuenirent saluo custodire faciendum Et ideo vobis cuilibet vestrum mandamus quod circa custodiam pacis ordinationum Statutorum omnium singulorum caeterorum praemissorum diligenter intendatis Et ad certos dies loca quae vos vel aliqui duo vel plures vestrū vt praedict ' est ad hoc prouideritis super praemissis faciatis inquisitiones premissa omnia singula audiatis terminetis ac ea faciatis expleatis in forma praedicta factur̄ in de quod ad Iusticiam pertinet secundū legem consuetudinem Regni nr̄i Angliae saluis nobis amerciamentis alijs ad nos inde spectantibus 69 And though there be many other offences mentioned in the said commission which the Iustices of peace are by force of the said Commission to enquire of heare and determine and to punish the offendors therin according to the lawes and Statutes of the Realme Yet as it appeareth by the words of the said commission the same hath his chiefe care and respect of the peace to the preseruation thereof And to the intent that the said Iustices or commissioners should the better remember and respect their charge and dutie they are called Iustices or commissioners of the peace and not commissioners of justice of conscience or equitie c. And so their names together with their offices and duties be in a sort written in their foreheads And the restraining or punishment of all the other offences mencioned in the said
of Iust nothing was attempted but the reformation of the mans conditions and to haue the peace and good behauiour continued The suertie of good abearing in other cases then for the peace And though this suerty of good abearing is chiefely prouided for the continuance of the peace yet by force of seuerall Statutes it is also grauntable in some other cases St. 10. E. â— 3 As if the King do graunt to any person a charter of pardon of any felony then he shall come within thrée Monthes before the Shirife and Coronors of the same Countie where the felony was done finde sixe sufficient Mainpernours for whom the said Shirife and Coronors will answere that he from thenceforth shall beare him selfe well and lawfully Sta. 1. M. 3 And if any man disturbe a Preacher in his Sermon he shall be bound to his good abearing for one yeare St. 3. Iac. 19. 5. El. 21. And he shall be bound to his good abearing for seauen yeares who doth vnlawfully hunt and steale deare or conies or take away wrongfully any haukes or haukes egges or shall vnlawfullie distroy or breake the head or damme of any pond poole moate stagne or stew whereas fish are put or shall wrongfully fish in any of them to the intent to steale or take away any of them against the will of the owner or possessor of the same not hauing lawfull authoritie so to doe And he shall be bound with two sufficient suerties in CC. Sta. 23. El. 1. l. to the good behauiour which doth absent himselfe from the Church by the space of twelue moneths c. 71 Because it appeareth by the words of the foresaid commission of peace that the said Iustices of peace shal cause al those to finde suerty of peace which doe threaten any of the Kings people to hurt them in body or to burne their houses For whom against whom the suertie of peace is to be graunted Therefore all lay persons vnder the degrée of Lords or Péers of the Realme and also Ecclesiasticall persons if they be not attendant vpon diuine seruice may be arrested to finde suerty for the peace And if the husband do threaten to kill his wife or outragiously to beate her or that she hath any notorious cause to feare that he will doe so Fitz. Nat. Bre. 80. 239. she may demaund the suertie of the peace against him and she shall haue it graunted And in like sort and for the like causes may the husband demaund suertie of the peace against his wife in which case shée her selfe shall not be bound but others shal be bound for her And a Iustice of peace vpon his owne discretion may in either of the foresaid cases grant suertie of peace And one Iustice of peace may vpon his owne discretion or at the request of an other graunt the suertie of peace against an other of his felow Iustices of peace of the same county And one Iustice of peace may demaund suertie of peace of an other of his fellow Iustices against an other man A man attainted of Treason or Felony or in a Praemunire A man attainted An Heretike A Dumb man An Enfant A Villeine or abiured or conuict of Heresie a dumbe man or an Enfant within the age of xiiij yeares may demaund ought vpon cause to haue suertie of peace And so may a Villeine haue suertie of peace against his Lord least that his Lord should maihem him the Lord may haue suertie of peace against his villein A dumbe man or an Enfant aboue the age of xiiij yeare may also be inforced to find suerties for the kéeping of the peace but then themselues are not to be bound but some others for them Or else they must be committed to prison vntill they can find suerties A Iustice of peace cannot graunt suertie of peace against a Baron of the Realme nor any other aboue the degrée of a Baron A Baron But the party who would haue the peace against him must bring him by Subpoena into the Chauncerie Fitzh Subpoena 20. there he must be bound to the peace A man that is frantike shall not haue the suertie of peace of his owne demaund A mad man because he hath not discretion to request it But a Iustice of peace vpon his own discretion may bind an other to kéepe the peace against him if he sée cause thereof Neither shall he who is a Alien borne no Denizen An Alien nor in friendship with the King the Realme haue suertie of peace graunted him 17. Ed. 4. 4. 72 If a man do threaten an other to imprison him the partie threatned shall not haue the suertie of peace against him that did so menace him Vpon what cause the suertie of peace is to be graunted for that after he is imprisoned he may haue against the other a Homine replegiando or an action of false imprisonment and recouer damages so be recompenced for his imprisonment But if one man do threaten an other to beate him the partie threatned may haue the suertie of peace against him for that beating may tend to the maiheming or killing of him which the suertie of peace might haue preuented If a man do feare that an other will kill him maihem him hurt him in bodie or burne his house or procure or cause the same to be done and will come before a Iustice of peace Fitz. Na. B. 79. take his corporall oath to that effect the Iustice of peace is to graunt him the suertie of peace against the man complained of for that may satisfie the conscience of the said Iustice that the partie doth complaine vpon méere feare and not vpon malice or vexation And though the partie against whom the peace is demaunded may séeme to the Iustice of peace to be a simple person weake féeble impotent or far vnable to incounter by force and strength with him that demaundeth the suertie of peace yet he may procure or cause the other to be slaine maihemed beaten or his house to be burned And further if the party that doth complaine and desiâ—eth the suertie of peace will sweare that he doth feare where indéed he neither doth feare nor hath cause of feare yet his oath doth therein discharge the conscience and oath of the Iustice of peace And the whole fault if any be shall be iustly imputed to the complainor 73 And whereas the words of the kings Commission be Suertie of peace inioyned by word or writing That the said Iustices of peace shal cause all those to find suertie of peace which do threaten any of the kings people to hurt them in bodie or to burne their houses It is to be obserued that in some cases a Iustice of peace may by his owne word only cause suertie of peace to be found sometime he must do it by writing As if one man do in the presence hearing
of a Iust of peace threaten to kill maihem wound or beate an other or to burne his house or in his presence do offer to strike or beate an other the Iustice of peace may commaund him by word to find suertie of peace Or if one man will demaund of a Iustice of peace the suertie of the peace against an other man who is then in the presence of the said Iustice of peace and will then and there be sworne that he is affraid of him the Iustice of peace may by word commaund the same partie to find suertie of peace or otherwise he may commaund the Shirife Bailife or some knowen officer or his owne seruant being then present to arrest the same partie and to bring him before him to find suertie of peace But if the partie against whom the peace is demaunded or the Shirife or Baylife be absent and not at that time in the presence of the Iustice of peace Then the same Iustice must make a warrant or precept in writing to the Constables Boursholders Tythingmen c. or to any other man though he be no Officer to arrest the same partie and to bring him before him or some of his fellow Iustices to find suertie of peace In which Precept must be conteined the cause why the peace was graunted and at whose suit to the intent that the partie to be bound may prouide his suerties ready and take them with him to the Iustice of peace Suertie of peace commaunded by writing And the warrant ought to beare date of the place where it was made 14. H. 8. 18. to the intent that if an action of False imprisonment be brought against him that made the same arrest by force of that warrant the defendant in his plea must shew the place where it was made If suertie of peace be required of a Iustice of peace of one County which at that time remayneth out of the Countie where he is Iustice against a man of the Countie where he is Iustice the same Iustice may graunt a precept to be serued in the Countie where he is Iustice A Iustice remayning out of the countie But when the partie shall be warned to find suerties Plow Com. fol. 37. 13. Ed. 4. 8. the officer must not carrie him out of that Countie to the Iustice that made the precept but to some other Iustice of that Countie for a Iustice hath no authoritie but in the Countie where he is Iustice The seruing of proces for the peace 74 If a Precept be made by a Iustice of peace either as he is a Iudge or as he is a minister to two men to arrest a man to find suertie of the peace yet one of them alone may do it If it be directed to the Shirife he may commaund his Vndershirife Bailife or other sworne or knowen officer to serue it Who may serue a warrant without writing who not without any precept by writing But if he will commaund an other man that is no knowen officer to serue it he must deliuer him a precept in writing for otherwise he doth if not by sufficient warrant so a writ of False imprysonment will lie against him for the arrest And if a Iust of peace do direct his warrant to the Shirifes Bailife his owne seruant or to a stranger to arrest one for to find suertie of the peace the partie to whom that warrant is made must serue it himselfe for he can commaund none other to do it either by precept or word A sworne knowen officer be he Shirife Vndershirife or Bailife Who may serue a warrant without shewing of it and who not c. 8. E. 4. 14. 20. H. 7. 13. néed not to shew his warrant to a man when he commeth to serue it vpon him for his knowen office doth authorize him But if a Iustice of peace will direct his warrant to his seruant or to an other stranger to serue he must shew his warrant to the partie if he will demaund it or otherwise the partie may make resistance and néed not to obey it And if the party against whom the suertie of the peace is graunted Refusing to obey the Iustices warrāt will vpon the seruing of the Iustices precept refuse to come to be bound to the peace the partie to whom the warrant is directed may commit him to the gaole of the same Countie there to remaine vntill he will find suerties A warrant for the peace Buck. The forme of which warrant for the peace is this viz. Anthonius Greenway Miles vnus Iusticiariorum domini Regis nunc ad pacem in Comitatu praedicto conseruandam assignatus vicecomiti comitatus praedicti Nec non omnibus singulis Balliuis Constabularijs ceterisque Dn̄i Regis ministris tam infra libertates quam extra in eodem com̄ salutem Quia A. B. de Bechampton in comitatu praedicto Taylor venit coram me sacramentū praestitit corporale quod ipse sibi metuit damnum vel malum de vita mutilatione membrorum per R.C. de Stonistratford in comitatu praedict ' Butcher vel per alium per eius procurationem ficri Ideo vobis cuilibet vestrū exparte dicti Domini Regis mando quod capiatis seu vnus vestrum capiat p̄fatū R. C. ita quod habeatis seu vnus vestrū habeat corpus eius coram me vel aliquo sociorum meorum Iusticiaor̄ dicti dn̄i Regis ad pacem in p̄dict Comitur conseruandā assignatur quā cito capi possit ad inueniendā sufficientē securitatē quod ipse aliquod malum vel damnum de vita seu mutilitatione membrorū dicto A. B. non faciet nec fieri procurabit quouismodo Et si hoc facere recusauerit tunc ipsū R. C. Gaole dicti dn̄i Regis in comitatu p̄dict ' duci faciatur seu vnus vestrum duci faciat ibidem moraturum quousque hoc gratis facere voluerit Et qualiter hoc praeceptū fuerit executum scire facias dictis Iusticiarijs ad proxima generalem Sessionem pacis in com' paedict ' tenendam habeas ibi tunc hoc preceptum Dat. apud Lecomstead c. 21. H. 7. 21. Co. li. 5. 59. 75 If a Iustice of peace doe direct his warrant to a Constable or other officer to arrest one and to bring him before the same Iustice To which Iustice of peace the partie arrested is to be brought or some other of his companions to find suertie of the peace and he doth arrest him accordingly but will not bring him before such a Iustice of peace as the partie arrested will nominate but before some other yet notwithstanding the party arrested shall not haue an action of false Imprisonment or an action of the case nor other remedy against the same Constable or officer for it is in the discretion of the same Constable or officer to bring the party arrested before which Iustice of peace of that
County that he will so that he dwell within a conuenient distance and not too farre from the parties owne habitation But if a Supplicauit of the peace be directed to the Iustices of the peace the Iustice to whom the writ is first deliuered shall only make the precept to apprehend the partie to find suerty of the peace and that precept shall be retornable before him only and he only shall take the suerties and only make the retorne without the others Co. lib. 5. 59 And a Iustice of peace may if he will make a warrant to the Constable to bring the partie before himselfe 5. Ed. 4. 12. 76 If a Iustice of peace doe direct his warrant to the Constable A warrant to find suertie to keepe the peace or some other to cause A.B. to finde suerties to kéepe the peace The same Constable or c. must first require the same A.B. to find suerties to kéepe the peace and if he doe refuse it then he may arrest the same A. B. for if A. B. will finde suerties then the said Constable may not arrest him because the purport of the precept is performed which is if he refuse so to doe that then he shall conuey him to the Gaole And if the Constable shall arrest A. B. after that he hath found suerties according to the precept the same A. B. may haue an action of false imprisonment against him for that he hath arrested and imprisoned him without warrant or cause And likewise if the Constable do arrest A. B. and doe not carrie him before some Iustice of peace 5. E. 4. 6. to find suerties to kéepe the peace or if he resist or refuse so to doe then if he doe not carrie him to the Gaole A.B. may haue an Action of false Imprisonment against the Constable The partie must offer his suerties And when the partie commeth to the Iustice of peace by force of a warrant he must offer suerties to the Iust of P. or else he may commit him to prison 14. H. 7. 5. for the Iust néedeth not to demaund suertie of him Suerty of the peace dieth with the king 77 The suertie of peace is discharged by the kings death 1. H. 7. 1. for the band is to obserue the peace of the King and when he is dead it is not his peace So doth the death of the recognisor so doth also the death of him at whose suit it was taken discharge the suertie of the peace if in those cases it were not forfeited before The Iustices authoritie dieth with the King And in like sort when the King by his commission doth appoint Iustices of peace and after dieth or giueth ouer his crowne the Authoritie of the same Iustices doth cease for he maketh them Iusticiarios suos and therefore when he dieth their authority endeth The suertie for the peace must be named 78 When a Iustice of peace doth take suerties for the peace 2. H. 7. 4. it is not sufficient to say that I. N. hath found sufficient suertie for the peace without naming the names of the suerties but he must name their names and surnames He that is vound to the peace must appeare c. 79 If a man doe finde suerties to kéepe the peace 39. H. 6. 26. and hath day vntill a time prefixed he must appeare the same day although he who demaunded the peace doe not appeare or otherwise he shall forfeit his band But it is otherwise where a suit is betwéene party and party and the defendant being taken by a Capias is bound to appeare vpon a day appoynted 80 When the suertie of peace is graunted against a man by a Iustice of peace he will sometime rather desire to be bound to the peace by an other Iustice then by him that graunted the same and made the warrant And therefore he may offer himselfe to become bound to the peace to some other Iustice of peace of that County if he will A Supersedeas for the peace then procure a Supersedeas from that other Iustice before whom he is bound to all other Iustices of that Countie to be discharged of any other arrest to be made of him for the law doth not require that he should be seuerall times bound for one cause And this Supersedeas is sufficient although it neither name the suertie nor contein the summes wherin they are bound but yet it is a better forme to expresse them both as the Chauncerie and Kings Bench doe And when a man doth heare of such a precept awarded or granted against him by a Iust of peace of the County where he dwelleth he may go eyther giue suertie of the peace in the K. Bench or els in the Chancery thereupon may procure a Supersedeas from the court where he is bound to restrain the Iust of peace of the County to take any suertie of peace of him And then the Iustices of peace of that County must forbeare to make any warrant for the peace against the partie and if any of them haue awarded it A precept awarded by force of a Supplicauit he must make a Supersedias to discharge it But a Iust of peace of the county by a Supersedeas cannot discharge a precept that is awarded by his felow Iust by force of a Supplicauit directed to him out of the Chancery or the K. Bench to take the suertie of peace of one resident in that County If any officer hauing a warrant from a Iust of P. to arrest a man to find suerty of the peace shall receiue a Supersedeas out of the Chancery or the Kings Bench or from any Iustice of the Kings Bench or from any Iustice of peace of that County where he is commorant to discharge the same suerty of peace wil neuertheles vrge that partie against whom the same warrant is granted to find new suertie for the peace he may refuse to giue it And if the said officer will therupon vnder the color of his warrant commit him to prison the party imprisoned may haue an action of false impris against him for the the said warrrant is discharged by as great authoritie or greater as it was made and the thing for the which it was made is effected The forme of which Supersedeas graunted by a Iustice of the peace is this viz Thomas Denton Miles Buck. vnus Iusticiariorum dn̄i Regis nunc ad pacem in Comitatu p̄dicto conseruandum assignatur Vicecomiti comitatus praedicti A Supersedeas for the peace Nec non cibus singulis Balliuis Constabularijs ceterisque dicti dn̄i Regis ministris tam infra libertates quam extra in eodem Con̄i Salutē Quia A. B. de Poundon in com̄ praedict ' Laborer venit corā me in venit sufficientē securitatur qd'ipse comparebit ad proximā generalē Sessionē pacis in com̄ praedicto tenend ' Et quod ipse interim pacē dicti
himselfe he may commaund them vpon paine of imprisonment to surcease 5. H. 7. 6. or else he may with his weapon part kéepe them asunder and call and procure others likewise so to doe And then he may carrie them before a Iustice of peace to find suertie of the peace which if they refuse to doe he may commit them to prison 3. H. 4. 9. or els the Constable may take suerties of them by Obligation to kéepe the peace And if any of the offendors doe flée into a house 13. Ed. 4. 9. the said officer may breake open the dores and arrest him and so he may doe if the offendor doe flée into another Countie for that the arrest is for the benefite of the commonweale And likewise if any of the said officers shall learne that certaine persons be fighting or quarreling in a house in such sort that they are like to breake the peace or that a man and a woman be in a house together committing addultery or fornication 7. E. 3. 10. 1. H. 7. 6. he may breake open the dores and arrest them to come before a Iustice of peace to find suertie of the peace or otherwise if he will he may commit any of the said offendors to prison And if any of the parties to an affcay haue receiued any daungerous wound then the officer must arrest the offendor and carrie him to a Iustice of peace 22. Ass p. 56 who is eyther to commit him to prison or to let him to mainprise vntill the next Gaole deliuery that it be knowen whethir the partie wounded will liue or die thereof or els the officer himselfe may commit him to prison vntill the same be knowen 38. Ed. 3. 6. for if the partie wounded doe die the offence wil be felony If the common voice and fame of the County be that C.D. hath committed a felony any of those officers that doe suspect him thereof may arrest him for it And so he may search within the limits of his authority for any persōs suspected of felony for it is a chiefe parte of the Constables dutie to preserue the peace and represse felons And if any of the officers before mentioned do arrest an offendor or any person suspected for any of the causes aforesaid who ought to be carried to the Gaole or before a Iustice of peace the same officer néede not carrie him presently to the Gaole 22. Ed. 4. 35. or before the Iustice but he may put him in the stocks or some other safe custody for a time vntill he can prouide sufficient company to assist him to conduct the same offendor to the Gaole or to the Iustice 2. Ed. 4. 9. Or if the partie arrested be so sicke diseased or wounded that he cannot be presently carried without daunger of death the officer may stay him vntill he be recouered 85 But the peace of the Realme hath béen so precious to all ages Euery able person is a Conseruator of the peace and Treasons Felonies assaults batteries and other forcible violences and offences so odious that the Lawes and Statutes of the Realme and the wisedome of our forefathers haue made and appointed besides the Magistrates and officers before mencioned all sortes of able persons in some sort and to some purposes preseruers of the peace intending that as all the members of the common weale doe taste swéet comfort and pleasant repose by the benefit of peace so they should be all partakers when néede requireth of the paines to maintaine and continue the same peace and to punish the transgressors thereof Sta. 3. E. 1. 9. And therefore by the Statute of Westm̄ 1. it is ordained That all men generally shall be ready at the commaundement and summons of the Shirifes and at the crie of the country to pursue and arrest felons when néede shall be aswell within fraunchises as without and they that will not and be thereof attainted shall make a grieuous fine to the King Sta. 3. Ed. 1. By the statute intituled Officium Coronatoris it is enacted That vpon all Homicides Burglaries men slaine or put in great daunger huy and crie shall be leuied and euery man shall follow the huy and crie and the offendors steppes if it may be and whosoeuer doth not and is thereupon conuicted shall be attached to appeare before the Iustices of Gaole deliuerie St. 5. E. 3. 14. By the Statute of Anno 5. Ed. 3. it is established That if any man suspect lewd persons then termed robertsmen wasters or drawlatches of any manslaughters felonies or robberies be it by day or night they shall incontinently be arrested by the Constable of the towne and if it be within franchise deliuered to the Bailifes of the franchise and if in guildable to the shirife and kept vntill the comming downe of the Iustices of Gaole deliuerie who shall procéede to the deliueraunce of them St. 17. R. 2. 8. By the Statute of 17. R. 2. it is defended to all the Kings people aswell Lords as others that none shall make assemblies Riots or Rumors against the peace And if any such assemblie be begun as soone as the Shirife and other Ministers may haue knowledge thereof they with the strength of the country shal disturbe such offendors and put them in prison vntill the law be executed vpon them And all Lords and other liege people of the Realme shall be attending with all their strength and power to the Shirifes and Ministers aforesaid St. 2. H. 5. 8. By the Statut of An̄ 2. H. 5. it is prouided That the Kings people being able to trauaile in the Countie where Riots assemblies or routs against the law be shal be assistant to the Iustices Commissioners Shirife or vndershirif of the same Countie when they shall be reasonably warned to ride with the said Iustices Shirife c. in aide to resist such Riots Routs and Assemblies vpon paine of imprisonment and to make fine and ransom to the King St. 15. R. 2. 2 By the Statute of 15. R. 2. it is ordeined That if the Shirife or any other of the Countie doe not attend vpon a Iust of peace to arrest such offendors as doe make forcible entries into lands or tenements he or they so offending shall be imprisoned and pay a fine to the King Sta. 1. M. 12. By the Statute of An̄ 1. M. it is established That if any person being aboue the age of xviij yeares and vnder the age of lx being able to serue and not sick lame or impotent shall be required by any Iustice of peace or any Shirife of any County where any vnlawfull assembly of xij persons or aboue shall be to do any vnlawfull act prohibited by that statute or by any Maior Bailife or other head Officer of any Citie Borough or towne corporat or by any other by the commaundement of any such Iustice Shirife Maior c. to go with him or them to suppresse the
persons vnlawfully assembled Then euery person which so being able and required doth willingly and obstinatly refuse so to doe shal suffer imprisonment for one yeare without baile or mainprise And as in al the cases aforesaid euery able person is bound vpon request to assist the Iustices shirifes other the Kings officers to pursue apprehend arrest and imprison Manquellors robbers felons or other disturbers of the peace and so to do his whole endeuor to be a conseruator of the peace of the Realme Euerie person must assist to execute the K. Writ In like sort is euery able person bound by the common law and by the Stat. of Westm̄ 1. Westm̄ 2. to be attendant vpon the Shirife St. 3. E. 1. 17. S. 13. E. 1. 39. or vndershirife in the execution of the kings writs and by that meanes to be a supporter of the justice of the Realme These offēces punishable in the Starre Chamber 86 Menaces assaults batteries imprisonments and maihems committed by some persons to some persons at some times in some places in some manner forme sort and with some circumstances besides the penalties aforesaid inflicted vpon the offendors therein are also punishable in the Kings high Court of the Starre chamber as other offences hereafter mentioned be as it doth more at large appeare in Oppressions 35. ¶ Of Riots Routs vnlawful and rebellious Assemblies RIots Routs The enormitie of Riots vnlawfull Rebellious assemblies haue bin so many times pernitious fatal enemies to this kingdom the peace tranquillity thereof haue so often shaken the foundation and put in hazard the very forme and state of gouernment of the same that our lawmakers haue béen enforced to deuise from age to age one law vpon an other one stat after another for the repressing punishing of them haue endeuoured by all their wits to snib the sprouts quench the very first sparkes of them as euery man may easily perceiue there was cause thereof who will looke back and call to his remembrance what that small Riot begun at Dartmouth in Kent in the raigne of King Richard the second betwéen the collector of a subsidy and a Tyler and his wife about the payment of one poore great did come vnto which being not repressed in time did grow to so great a rebelliō that after it put in hazard the life of the K. the burning of the Citie of London the ouerthrow of the whole Nobility gentlemen and all the learned of the land and the subuersion of this goodly Monarchy and forme of gouernment Or if they will call to mind the small Riot or quarrell begun in the raigne of King Henry the sixt between a Yeoman of the gard and a seruingman of Richard Neuils Earle of warwick which so farre increased for want of restraint that it was the roote of many wofull tragedies and a meane to bring to vntimely death first Richard Plantagenet Duke of Yorke proclaymed successor to the Crowne and the chiefe pillar of the house of Yorke and after him King Henry the sixt and Prince Edward his sonne the heires of the house of Lancaster and to ruinate with the one or the other of them most of the Péeres great men and gentlemen of the realme besides many thowsands of the common people West 1. 3 E. 1. 32. Sta. 7. Ed. 1. St. 13. E. 1. 6. And therefore King Edward the first did well ordaine That no Shirifes shall suffer Barretors or maintainers of quarrels in their Counties And that to all parliaments Treatises and other assemblies each man shall come peaceably without any armor and that euery man shall haue armor in his house according to his ability to kéepe the peace And King Edward the third prouided Statutes ordained to preuent forces or Riots that no man shall come before the Iustices St. 2. E. 3. 3. St. 5. E. 3. 14. nor goe or ride armed And that suspected lewd and riotous persons shall be arrested and safely kept vntill they be deliuered by the Iustices of Gaole deliuery St. 34. E. 1. 3. Sta. 2. R. 2. 6. And that Iustices of peace shall restraine offendors riotors and all other Barretors and pursue take and chasten them according to their Trespas and offence Sta. 5. R. 2. 6. St. 15. R. 2. 2 St. 7. R. 2. 13 King Richard the second did prohibit Riots Routs and forcible entries into lands that were made in diuers counties and partes of the Realme And that none from thenceforth should make any Riot or Rumor And that no man shall ride armed 20. Rich. 2. 1 nor vse Launcegaies And that no laborer seruant in husbandry or Artificer St. 12. R. 2. 6 or victualer shall weare any buckler sword or dagger And that all the Kings officers shall suppresse and imprison such as make any Riots Routs St. 17. R. 2. 8. or vnlawful assemblies against the peace King Henry the fourth enacted That the Iustices of peace the Shirife shall arrest those which commit any Riot Rout or vnlawfull assembly shall enquire of them and record their offences St. 13. H. 4. 7 King Henry the fift assigned commissioners to enquire of the same Iustices Shirifes defaults in that behalfe St. 2. H. 5. 8. and also limited what punishment offendors attainted of Riot should sustaine King Henry the seauenth ordained Sta. 19. H. 7. that such persons as were returned to enquire of Riots should haue sufficient fréehold or copihold land within the same Shire And that no maintenance should hinder their Inquisition And in the Raigne of Quéene Mary Sta. 1. M. 12. there was a necessary Statute established to restrain and punish vnlawfull and rebellious assemblies raised by a multitude of vnruly persons to commit certaine violent forcible and Riotous acts 2 As the said Lawes Statutes were deuised in seueral ages by the wisedom of the Realme to enquire of and restraine Riots Routs vnlawfull and rebellious assemblies and to checke violences and forces before they should grow to a head So haue our prouident forefathers erected the most honorable Court of Starre chamber The Court of Starre chambers authoritie to punish Riots c. to examine and punish those and other offences when they breake out to extremities viz. to great and haynous Riots or such like enormities thereby to kéepe euery person in awe and so the whole Realme in peace As appeareth by the Statute of Anno 3. H. 7. whereby it is inacted That the Chauncellour and Treasorer of England for the time being and the President of the Kings Councell St. 3. H. 7. 1. Stat. 21. H. 8. 22. and the kéeper of the Kings priuy seale or two of them calling to them a Bishop and a Temporall Lord of the Kings most honorable priuy Councell the two chiefe Iustices of the K. Bench and common place for the time being or other two Iust in their absence vpon bill or information put to
the said Chauncellor for the King or any other against any person for any misbehauing by vnlawfull maintenances giuing of liueries signes and tokens retainers by Indentures oathes writings or otherwise embracery of the Kings subiects vntrue demeanings of Shirifes in making of pannels and other vntrue returnes by taking of money by iniuries by great Riots and vnlawfull assemblies haue authority to cal before them by writ or by priuy seale the said misdooers and they and other by their discretion by whom the truth may be knowne to examine and such as they finde therein defectiue to punish them according to their demerits after the forme and effect of the Statutes thereof made in like manner and forme as they should or ought to be punished if they were thereof conuict after the due order of the law And though the Iustices of peace doe assesse a fine in the Country vpon some that haue committed a Riot there yet the Lords in the Starre chamber may assesse vpon the said offendrs for the same Riot a greater penalty if they sée cause for in this case the offendors be not twice punished for one offence but part of the due punishment is inflicted at one time and part at another And the Lords doe sufficiently punish an offence which was but remisly done by the Iustices 3 A Riot is where thrée persons or aboue do assemble themselues together to the intent to beate or maihem a man to pul downe a house wall pale What is a Riot hedge or ditch wrongfully to claime or take common or way in a ground to destroy any parke warren douehouse pond poole barne mill or stacke of corne or to doe any other vnlawfull act with force and violence and against the peace and they doe it If a man goe abroade with his houshold seruants which he hath commonly of his owne familie though they be more then his abilitie or degrée is to maintaine and doth make a fray by the way this is no Riot vnlesse the Master did before make his seruants priuy that hée meant to make an affray for it is no riot except there be an intent before to doe some violence and hurt If thrée foure or more doe enter into landes with force vppon the possession of an other though their entrie be lawfull yet is it a Riot St. 5. R. 2. 7. for the Statute of Anno 5. Richard 2. doth prohibite entrie into Landes and Tenements with force or a multitude of people 4 An vnlawfull assembly is where thrée persons or aboue What is an vnlawfull assembly doe assemble themselues together to the intent to doe any of the Actes aforesaide or any other such vnlawfull act with force and violence against the Peace although they doe it not indéede but after their assemblie they departe by their owne consent vpon some feare conceiued or other cause without dooing of any outrage for their intent of assembling was vnlawfull though the act subsequent did not ensue according to the same 5 A Route is where thrée persons or aboue doe assemble themselues What is a Rout. for the reuenge of their owne common quarrell As if the Inhabitants of a Towne doe assemble together to pull downe a house wall pale ditch or other inclosure of a parke pasture or close or the head of a poole where they wrongfully pretend to haue title of common or a way or to beate or maihem one man or more that haue done to them all some publike offence If they once méete 17. Ed. 4. 4 procéede and goe forward towardes the execution of any of the Actes aforesaide and doe shew by Armour Gesture or Spéech that they meane to doe any violence or to terrifie or feare any of the Kings people it is a Rout whether they put their intended purpose in execution or not But if a Maior and Aldermen or Bayliffe and Burgesses or the fellowes of any societie doe assemble in their common quarrell and make a Riot Rout or Vnlawfull assembly this shall be punished in their owne priuate naturall persons and not in the body politike for it was their priuate persons that assembled to offend the Lawe and not the bodie politike If a man goe to the Sessions Market Faire Rout by wearing of Armour or other assemblie of company with his seruants in Harnesse though he hath no intent to fight or to commit any Riot yet this is a Rout by the manner of his comming and is contrary to the Statute of 2. St. 2. Ed. 3. 3 Edw. 3. which hath ordained That no man shall bring any force in affray of the peace nor shall go armed in faires markets or elsewhere vpon paine of imprisonment and forfeiture of his Armour Lawfull assemblies of thrée persons or more 6 An Assembly of thrée persons or more which is not to the terrour of the people nor to doe some Act with force and violence against the peace is not vnlawfull nor prohibited by any of the Statutes before mentioned The watch in London vpon Midsummer night is lawfull and so be such like in other Cities and Townes Assemblies be lawfull that be vsed vppon Maie day to fetch in Maie boughs or floures and so be assemblies at Church-Ales Whitson or Midsummer-Ales Assemblies at the fetching home setting vp or dauncing about a Maie-pole and assemblies at the bayting of a Bull or Beare or at the mowing or making of Dole or Reuell meade and assemblies of Minstrells and their fellowes at certaine places and times of the yéere allowed by old and ancient customes are also lawfull And Assemblies to play at Cardes Tables Bowles Clash Bucklers Wasters halfe Sword Tennis Quoits Cailes or such other games be likewise by the common lawe tollerable though some of the same games be prohibited vpon some penalties by Statute to be vsed by some persons and assemblies to runne at Quintall Sand bagge Base Footeball Stooleball Handball St. 33. H. 8. 9 or such like disports be also lawfull For these assemblies be not made with the intent to breake or disturbe the Peace or to offer violence force or hurt to the person of any but either to trie Actiuity or to increase societie amitie and neighbourly friendship And if in any of the said assemblies any of the parties the same shall make a fray with a stranger that is no Riot neither doth it make the residue of the same company Riotors who came thither for their disports and not to any euill or vnlawfull intent But if any of the same company shall fall out with a stranger or some others of their owne associates and then some of them doe take one parte and some of them another An Assembly lawfully begunne doth end riotously whereby a Riot is committed then so many of both sides as shall take sides and be parties to that quarrell shall be adiudged Riotors but not the residue for the Riot did not take his beginning at the first méeting when they did all
assemble for any of the sportes before mentioned but when the taking of parte with those that did quarrell beganne And therefore they onely who made themselues parties to that quarrell shall be punished as Riotors and none other And so it is if a Iurie be charged to trie an Issue if some of them fall out and fight this is no Riot in the residue assembling to a lawfull end 22. H. 6. 37 3. H. 7. 1. 10. St. 17. R. 2. 8. St. 1. M. 12. 8 St. 3. H. 4. 17 Sta. 8. H. 6. 9. St. 3. Ed. 1. 9. And it is lawfull for the Sheriffe Vndersheriffe or Bayliffe to take the power of the Countie what number they shall thinke good to execute the Kings processe And so may any Iustice or Iustices of Peace and the Sheriffe and the Vndersheriffe take any power of the Countie to represse Riots Routes vnlawfull or Rebellious Assemblies Or to remooue such persons as by Inquisition are found to haue made forcible Entries into other mens possessions or to detaine them with force And so may a Iustice of Peace Sheriffe or Constable take of the Countie any number that they will to pursue and apprehend Traytours Murderers Robbers or other felons or such as doe breake or goe about to breake or disturbe the peace For though in the cases last specified there be three or aboue assembled together yet it is to execute the iustice of the Lawe and by that meanes to preserue peace And it is a lawfull assembly which is gathered together to runne at Tilt Iusts or Barriers by the Kings commaundement for the cause beginning and end thereof doe tend to obedience the laudable exercise of true valour and manhood and to the encouragement and enabling of the actors therein to defend the Realme and the peace thereof 7 And though by the before specified Statute of Anno 34. Edw. 3. it is ordained that Iustices of Peace shall restraine offendors Riotors and all other Barrators and pursue take chasten imprison and punish them according to their trespasses and offences to the intent that the people bee not by such Riotors troubled or indammaged nor the peace broken nor any passengers by the way disturbed or put in perill Yet by force of that Statute the Iustices of Peace could not require the helpe of the Sherife nor commaund the power of the countie to helpe to assist them St. 17. R. 2. 8. to represse the said Riotors Whereupon by the before mentioned Statute of Anno 17. R. 2. it is defended That none shall make assemblies riot or rout against the peace in any wise And if any such assembly be begun as soone as the Sherifes Disturbing of riotors and other the Kings ministers may haue knowledge thereof they with the power of the countie where such case shall happen shall disturbe such malice with all their power and shall apprehend all such offendors and put them in prison vntill due execution of the law be made of them and all Lords and other liege people of the Realme shall attend with their whole strength and power the Sherifes and ministers aforesaid 8 But because the said Statute of 17. R. 2. or any other Statute or Law before that time made doth not enable the Iustices of Peace and Sherife to record that which they shall find done in their presence against the law nor to make enquirie thereof nor to heare and determine the same nor to make certificat thereof to the King and his counsell if the truth cannot be found Nor doth assigne what Proces shall bee awarded against the offendors nor doth inflict any penaltie vpon the Iustices which shall not execute the law Therefore by the before rehearsed Statute made Anno 13. St. 13. H. 4. 7 H. 4. it was established that if any riot assemblie or rout of people against the law be made in any part of the Realme the Iustices of peace three The Iustices and sherifs shall arrest Riotors or two of them at the least and the Sherife or Vndersherife of the shire where such riot assembly or rout shall be made shall come with the power of the countie if néed bée to arrest them And the Iustices Sherife or Vndersherife shall haue power to record that which they shall find done in their presence against the law And the same trespassors and offendors shall bee conuict by the Record of the same Iustices Sherife or Vndersherife in manner and forme as is contained in the Statute of forcible entries The forme of Recording of which riot is this Buck. Recording of a riot viz. Memorandum quod primo die Martij anno regni regis Domini nostri Iacobi dei gratur c. tertio Nos Franciscus Goodwin miles Alexander Hamden miles Iusticiarij domini Regis nunc ad pacem in comitatu praedicto conseruandam necnon c. assignati Richardus Ingolsby miles adtunc vicecomes eiusdem comitatus ad querimoniam A. B. de Wadsdon in comÌ„ praedicto yeoman in proprijs personis nostris accessimus ad domum mansionalem ipsius A.B. apud Wadsdon praedictur ibidem inuenimus quosdam C. D. E.F.G. alios malefactores pacis dicti domini Regis perturbatores ignotos ad numerum octo personarum modo guerrino arraiatos viz. cum gladijs baculis arcubus sagittis riotosè illegitimè aggregatos eandem domum sic custodientur in magnam perturbationem pacis dicti domini Regis populi sui terrorem contra formam statuti in Parliamento domini Henrici nuper Regis Angliae quarti Anno Regni sui decimo tertio tento editi Et ideo nos praefati F. G. A.H. corpora pÌ„dictoruÌ„ C.D.E.F.G. ad tunc arrestauimus ac proxime Gaole dicti domini Regis in Com' pÌ„dicto duci fecimus ê‘ recordum nostrum de transgressione praedicta conuictos in praesentia nostra ibidem moraturos quousque finem dicto domino Regi ê“ transgressione sua praedicta fecerunt In cuius rei testimonium huic recordo nostro sigilla nostra apposuimus Datur apud Wadsdon praedict ' die Anno praedictis 9 By the same Statute of 13. H. 4. it is further ordained St. 13. H. 4. 7 That if it happen such Trespassors and offendors be departed before the comming of such Iustices Inquirie of a Riot by the Iustices c. and Shirife or vndershirife the same Iustices thrée or two of them shall diligently inquire within a moneth after such Riot assembly or Rout of people so made and the same shall heare and determine according to the lawes of this Realme And because the said Iustices of peace Shirife c. are by this braunch of the Statute to make inquiry of the Riot which must be done by a Iury returned by the Shirife the forme of the said Iustices precept to the Shirife to returne the said Iury is this Buck. viz. Henricus Longuile miles Willihelmus Anderous miles Iusticiarij Domini
persons at the nomination and by the aduise of the Chauncellor of England And the said Commissioners incontinently shall send into the Chauncery the Enquests and matters before them in this behalfe taken and found Vpon the Cōmission the coronors shal returne the Iury 14 The Coroners of the same Countie for the time being St. 2. H. 5. 8. in which Countie such Riot Assemblie or Rout shall be made shall make the panell vpon the said commission retornable for the time that the Shirife so supposed in default shal remain in his office which Coroners shal return no persons but only such which haue lands c. to the value of x. l. by the yere at the least And also the same coroners shal return vpon euery of the said persons impannelled at the first day when issues be to be lost xx What issues shal be returned vpon the Iurors s. at the least at the second day xl s. at the least at the third day C. s. at the least at euery day after the double at the least which issues so returned because of non-appearance of such persons impanneled shall be forfait to the King and leuiable to his vse And if default be found in the said coronors touching the returne of such persons to be impanneled or touching the returne of such issues as afore is said euery of them shall pay to the Kings vse forty pounds Where the shirife shal return the Iury and not the coronors 15 And if the Shirife so reputed in default be discharged of his office St. 2. H. 5. 8. at the time that such commission shall goe out of the Chauncerie then the new Shirife of the same County his successor mediate or immediate and not the coronors shall make the pannell vpon this commission returnable in manner and forme as the said coronors should doe in time when the Shirife so reputed in default stood in his office And the same Shirife shall incurre like paine of xl li. to the King if any default in him be found touching the returne of other persons by him impannelled which haue not lands tenements or rents to the value of x. li by the yeare or of returning such issues as the said coronors be aboue charged to returne as the said coronors be to lose to the King in this behalfe A writ directed to enquire of a Riot 16 The Chauncellor of England as soone as he may haue knowledge St. 2. H. 5. 8. of such Riot assemblie or Rout shall cause to be sent the Kings writ to the Iustices of peace and to the Shirife or vndershirife of the County where they be so made that they shall put the foresaid Statute of 13. H. 4. in execution vpon the paine contained in the same And though such writ come not to the said Iustices Shirife or vndershirife they shall not be excused of the paine of 100. pounds aforesaid if they make not execution of the said Statute Riots shal be inquired of at the Kings costs 17 The Iustices and other officers aforesaid shall doe their offices at the Kings costs in going tarrying St. 2. H. 5. 8. and returning in dooing their said offices by payment thereof to be made by the Shirife of the same County for the time being by Indentures betwéene him and the said Iustices and other officers aforesaid to be made of the payment aforesaid whereof the said Shirife vpon his accompt in the Exchequer shall haue due allowaunce St. 2. H. 5. 8. 18 Such Riotors attainted of great and haynous Riots The punishment of Riotors shall haue one whole yeares imprisonment at the least without being let out of prison by baile mainprise or in any other manner during the yeare aforesaid and the Riotors attainted of petit Riots shall haue imprisonment as the King and his Councell shall thinke good St. 2. H. 5. 8. 19 The Kings liege people being able to trauaile in the Countie where such Riots assemblies or routs shall be made shal be assistant to the Iustices Each man shall helpe to represse Riots commissioners Shirife or vndershirife of the same County when they shal be reasonably required to ride with the said Iustices Shirife or vndershirife in aide to resist such Riots Routs and assemblies vpon paine of imprisonment and to make fine and ransom to the King St. 2. H. 5. 8. 20 The Bailifes of franchises Bailifes of Franchises shall impannell sufficient people as before vpon paine to loose xl li to the King in case that such sufficient persons may be found within the said franchises Corporat towns hauing Iustices And like ordinances and paines shall hold place and take effect in Cities Boroughs other places and townes enfranchised which haue Iustices of peace within them 21 Forasmuch as in the before rehearsed Statute of 13. H. 4. it is not expressed of what sufficiency the Iurors impannelled by the Shirife to inquire of Riots should be Nor what issues they should lose if they appeare not Nor any mention is made of any punishment the maintenors and embraceors of the Iurors that so shall be impannelled should haue for their misdemeanor A Iury to enquire of Riots if any should be St. 19. H. 7. 13. Therefore by a Statute made Ann̄ 19. H. 7. it was enacted that if any Riot Rout or vnlawfull assemblie be committed within this realme the Shirife hauing a precept directed to him shall returne xxiiij persons dwelling within the Shire where such Riot c. shall be so committed whereof euery of them shal haue lands and Tenements within the same shire to the yearely value of xx s. of Charter land or fréehold or xxvj s. viij d. of copihold or of both aboue all charges for to inquire of the said Riot Rout or vnlawfull assemblie And he shall returne vpon euery person so by him impanelled in issues at the first day xx s. at the second xl s̄ if that they appeare not and be sworne to enquire of the premisses at the first day And if default be found in the Shirife or vndershirife for returning of other persons being not of the same sufficiency or for not returning issues in forme aforesaid then the said Shirife shall forfeit to the King for either twenty pounds St. 19. H. 7. 13. 22 If the said Riot Rout or vnlawful assemblie be not found by the said Iury by reason of any maintenance or embracery of the Iurors Maintenance where by a Riot is not found then the same Iustices and the Shirife or vndershirife beside such certificat that they be bound to make according to the foresaid Statute of 13. H. 4. shall in the same certificat certifie the names of the mainteinors and embraceors in that behalfe if any be with their misdemeanors that they know vpon paine of euery one of the said Iustices and Shirife or vndershirife to forfait xx li. if they haue no reasonable excuse for not certifying of
the same which certificat so made shall be of like force and effect in the law as if the matter contained in the same were duly found by the verdit of xij men And euery person duly proued to be a mainteinor or embraceor of the same shall forfeite to the King xx l. and shall be committed toward there to remaine by the discretion of the Iustices What one Iustice of peace may doe alone in a Riot 23 One Iustice of peace alone can neither make inquiry of a Riot Rout 7. Ed. 4. 18. or vnlawfull assemblie when it is done nor assesse any fine nor award any proces for it nor otherwise meddle with it in the nature of a Riot or Rout but only as a trespas against the peace or vpon the statute of Northampton or the Statut of 34. Ed. 3. or vpon the Stat. of forcible entries for the wordes of the foresaid Statute of 13. H. 4. be That if such trespassors or offendors be departed before the comming of the said Iustices Shirife or c. the same Iustices thrée or two of them shall diligently enquire c. So that there must be two of them at the least to make such inquirie 14. H. 7. 9. But if one Iustice of peace doe heare of any Riot Rout or vnlawfull assembly he alone with his seruants may goe to the place where the assemblie is reported to be made and if he finde any riotously gathered together he may arrest them to finde suerties of their good behauiour according to the Statute of 34. Ed. 3. Kel fo 41. he may take their weapons from them and retaine them vntill their hot bloud be cooled And if they refuse to finde suerties of their good behauiour he may commit them to prison But this must be done presently vpon the act doing for if there be any meane time he hath then no authority to commit them to prison And if he come to the place whither he doth vnderstand that some persons will repaire to commit some Riot Rout or violent act against the peace and the same persons be not yet come thither he may leaue his seruants there to restraine them from committing their intended Riots or other offences or else to arrest them to finde suerties of their good behauiour if they doe offer to commit any Riot or to breake the peacce And so may he also doe if he shall be sicke and heare of any Riot c. intended to be done he may send his seruants to represse it or to bring the offendors before him or some other Iustice of peace to finde suerties to kéepe the peace or else to commit them to the Gaole So that one Iustice of peace alone may by the warrant of the said Statute of 34. Ed. 3. doe much in preuention of a Riot c. before it be done for the stayiâ—â— of it whilest it is in dooing but nothing to punish it as a Riot when it is done for that statute of 34. Ed. 3. was made for the common profit of the Realm spéedily to interrupt and preuent present mischiefes to disperse malefactors Barretors and other Riotors in their very first méeting and encounter and so farre as may be to parte and cut off the quarrell before it grow to any head or extremity which peraduenture would not be easily pacified if one Iustice should doe nothing vntill some other of his fellowes came to assist him therein And a Iustice of peace may by word only without warrant in writing commaund his owne seruants or any of them to apprehend those that are about to commit a Riot in his presence And they may iustifie the taking of them though those Riotors be gone or fled away out of the presence of the same Iustice before his said seruants can lay hold on them 24 Although this Statute of 13. H. 4. doth not make that mention which the Statute of 8. H. 6. of Forcible entries doth touching complaint to be made to the Iustices of peace of a Riot Rout or vnlawfull assemblie but doth hinde the next Iustices of peace to doe execution of this Statute euery one vpon pain of C.li. yet the Sages of the Realme and the wisedom of the interpreters of the law The Iustices must haue notice of the Riot haue thought it reason 4. El. Dy. 210. that notice should be giuen vnto the said next Iustices thereof before they should incurre the said penaltie of C.li. vnles it be some great notorious and very perilous Riot which by common intendment euery person in those parts may take knowledge of for as the said Statute of 13. H. 4. doth relate to the Statute of 8. H. 6. touching the conuiction of offendors by the record of the Iustices So it is like that the meaning of the makers thereof was it should doe in giuing notice or making of complaint of the wrong receiued 25 If the Iustices doe assemble themselues the Shirife The parties agréement no discharge of the inquisition and the Iurie to make inquirie of a Riot within a moneth according to the Statute and after at the parties request they do not inquire of it but doe dismisse the Iurie for that the parties haue agréed betwéene themselues Yet the Iustices shall pay a fine to the King although none doe giue euidence for the King vpon that Riot for they ought to take and charge an enquest and to make enquiry of that Riot whereof they were enformed or of all Riots séeing it may be that the Iurors themselues haue knowledge of the Riot And moreouer they must make proclamation if any will enforme the Kings Iustices of any Riots Routs c. And the said Statute of 13. H. 4. which giueth authoritie to the Iustices and Shirife c. to inquire of the Riot and to heare and determine it according to the law was ordained to punish Riotors for breaking of the Kings peace and thereby to make them an example to others and also to intitle the King to a fine And therefore the law will not permit that the satisfaction of the parties grieued should depriue the King of his fine or ease the offendors of their due and deserued punishment and also yéeld incouragement to others vpon hope of agréement to put in practise the like Riots or other outrages St. 13. H. 4. 7 26 And whereas the said Statute of 13. H. 4. hath ordained that if any Riot or c. against the law shall be made the Iustices of peace the Shirife or vndershirife shall come with the power of the Countie if néede be to arrest them That power of the County is expressed before by the Statute of 17. What power of the County the Iustices shall vse to represse Riots R. 2. viz. Al Lords and other liege people of the Realme as Knights Esquires gentlemen yeomen laborers seruants apprentises villaines and all others of the age of 15. yeares or aboue which be not of the Clergie decrepite or
praedicti Qui quidem A. B. C. D. E. F. adtūc ibid p̄sentes in cur̄ petierūt se ad finē cū dict' dn̄o Rege occasione p̄d admitti Et inde pon̄ se seperatur in miserecordia dn̄i Regis Et assessatur finis eiusd A.B. per Iusticiar̄ p̄d ad 5. li. Et assessatur finis eiusdem C.D. ad 3. li. c. bone legalis monetur Angliae ad opus vsum dicti dn̄i Regis 32 Thogh the laws statutes before rehearsed or mētioned did take sufficiēt order for the inquiring of repressing punishing of such as did cōmit riots routs or vnlawfull assemblies by iij. iiij.v or some small number of persons and then were apprehended or dispersed by the Iustices of Peace the sherife or vndersherife with the help of the countrie when néed required Yet there was no sufficient law deuised to suppresse and punish such as did assemble in great numbers routs and tumults and would in contempt of the law and in rebellious manner put in practise vnlawfull forcible and violent acts and being by authoritie of the same law in calme manner required to the contrary would yet stand at the staues end with the peace of the realme and the iustice of the law and as it were in despite of all gouernment and gouernors procéed in their furie Therfore to continue peace and tranquilitie in the common weale and by a more sharpe corrasiue to bridle or punish so great maladies St. 1. M. 12. by a statute made Anno 1. M. it was enacted Twelue or aboue assembled to change lawes That if any persons to the number of xij or aboue being assembled together shall intend goe about practise or put in vre by force of armes vnlawfully and of their owne authoritie to alter or change any lawes made or established for religion by authoritie of Parliament which stand in force or any other laws or statutes of this realm or any of them the same number being commanded or required by the sherife of the shire or by any Iu. of peace of the same shire or by the mayor sherife I. of peace or by the baylifs of any citie borough or towne corporat where such assemblies shal be vnlawfully had and made by proclamation in the Queens name to retire and repaire to their owne houses and habitations or places frō whence they came and they or any of them notwithstanding such Proclamation shall remaine and make their abode and continue together by the space of one whole houre after such commandement or request made by Proclamation or after that shall willingly in forcible and riotous manner attempt to do or put in vre any thing aboue specified Then as well euery such abode or continuing together as euery such act or offence that after such commandement or request by Proclamation had or made shal be attempted to be done practised or put in vre by any of the persons being of the number aforesaid shal be iudged felonie in all and singular those persons that so shall make their abode or continue together or shall attempt or commit any act And the offendors therein shal be adiudged felons and shall suffer only execution of death as in case of felony St. 1. M. 12. 33 If any persons to the said number of twelue or aboue shall intend Practising to destroy parks ponds conduits goe about practise and put in vre in manner and forme aforesaid to ouerthrowe cut breake cast downe or digge vp the pales hedges ditches or other inclosure of any Parkes or Parke or other grounds or ground inclosed or the bankes of any fish-pond or poole or any conduits for water conduit heads or conduit pipes hauing course of water to the intent that the same or any of them from thenceforth should remaine open not inclosed or voyd Common or way or vnlawfully to haue common or way in the same Parkes or Parke or other groundes or ground inclosed or in any of them or to destroy in manner and forme aforesaid the Deere in any Parks or Parke or any warrens or warren of Conies Destruction of déere conies doue-houses fish Pulling downe houses burning stacks of corne abating of rents or any Doue-houses or any fish in any fish-pond or poole or to pull or cut downe any houses barnes milles or bayes or to burne any stackes of corne or graine or to abate or diminish the rents or yearely value of any mannors lands or tenements or the price of any victuall corne or graine or any other thing vsuall for the sustenance of men being required or commanded by any I. of peace or by the Sherife of the countie or by the mayor bailife or bailifs or other head officers of any citie or towne corporat where such assemblie shall be had by proclamation to bee made in the Quéenes name to retire returne in peaceable maner to their places and houses from whence they came and they or any of them notwithstanding such proclamation shall remaine or make their abode or continue together by the space of one whole houre after such cōmandement or request made by proclamation or after that shall in forcible maner do or put in vre any of those things last before mentioned Then aswell euery such abode or continuing together as euery such act that after such commandement or request by proclamation or request had or made shall be done practised or put in vre by any of the persons being aboue the number of twelue shal be adiudged felonie and the offendors therein shall be adiudged felons and shall suffer only the execution of death as in case of felonie Raising of vnlawfull assemblies by some acts or words 34 If any person or persons vnlawfully and without authority 1. M. 12. by ringing of any bell or bels sounding of any trumpet drumme horne or other instrument whatsoeuer or by fiering of any beacon or by malitious speaking or vttering of any words or making of any outcrie or by setting vp or casting of any bils or bil or writing whatsoeuer or by any other déed or act shall raise or cause to be raised or assembled any persons to the number of twelue or aboue to the intent that the same persons should doe or put in vre any of the things aboue mentioned that the persons to the number of twelue or aboue so raised and assembled after request or commandemēt had or giuen in forme aforesaid shall make their abode or continue together as is aforesaid or vnlawfully and in forcible manner perpetrate doe commit or put in vre any the acts or things abouesaid Then all and singular persons by whose speaking deed act or any other the meanes aboue specified any persons to the number of twelue or aboue shall be raised or assembled for the doing committing or putting in vre of any the acts or things aboue mentioned shal be adiudged for his so speaking or doing a felon shall suffer executiō of death as in
case of felony Relieuing them which be assembled 35 If any wife or seruant of any of the same persons 1. M. 12. or any other person whatsoeuer shall willingly and without compulsion bring send deliuer or conuey any money harnesse artillerie weapon meat bread drinke or other victuall to any person or persons so beeing assembled as is aforesaid during such time as he or they shall so be assembled or be together as is aforesaid then euery wife seruant or other person so bringing or conueying c. any of the foresaid things to the same persons so beeing assembled together in forcible manner or to any of them and not departing to their houses or dwelling places vpon request or commandement made vnto them as is aforesaid shall bee adiudged a felon shal suffer execution of death as in case of felonie Vnlawful assemblies aboue two and vnder twelue 36 If any persons aboue the number of 2. and vnder the number of 12. 1. M. 12. beeing assembled together shal intend goe about practise or put in vre with force of armes vnlawfully of their owne authoritie to murder kill or slay any of the kings subiects or to ouerthrowe cut breake or cast downe or dig vp the pales hedges ditches wall or other closure of any parkes or parke or other ground inclosed or the bankes of any fish-pond or poole to the intent that the same or any of them from thenceforth should remaine open not inclosed or void or to haue common or way in the same parks or parke or other grounds or ground inclosed or in any of them or to destroy any parkes or parke or fish-pond or poole or any warrens or warren of conies or any doue-houses or to pul or cut down any house barne or mil or to burne any stacke of corne or graine or to alter defaulke or abate the rents or yearely value of any mannors lands or tenements of any of the Kings subiects or the price of any victual corne or graine or any other thing vsuall for the sustenance or apparell of men and being required or commanded by any Iustice of peace or the sherife of the countie or by any mayor bailife or bailifes or other head officer of any citie or towne corporat where such assembly shall be had by Proclamation to be made in the Kings name to retire or returne to their habitations places or houses and they so required by such proclamation shall not so do but after that shall in forcible manner in forme aforesaid attempt to do or put in vre any of the things last aboue mentioned then euery of the same persons beeing aboue the number of two and vnder the number of twelue shall suffer imprisonment of his or their bodies by the space of one whole yeare without baile or mainprise The remedie of the parties grieued And also if any person or persons shall be damnified or hurt by the doing committing or putting in vre of any vnlawfull act or thing aboue mentioned then all and singular persons so damnified and hurt shall recouer and haue dammages with the costs of their suit sustained in that behalfe trebled against the offendors therein 1. M. 12. 37 If any persons aboue the number of two shal vnlawfully of their own authoritie assemble together to the intent with force and armes to do practise Raising of power to suppresse vnlawful assemblies or put in vre any of the things aboue mentioned Then it shall be lawfull to euery Iustice of peace to euery Sherife in any countie beeing within the K. dominions and to euery mayor bailife and other head officer of any citie or towne corporat for the time he shall be in office or any other person or persons hauing the K. commission or Letters from his highnes as wel to raise and assemble the kings louing subiects in maner of warre to be arraied in such great number as he or they then shall thinke meet or able to the intent by violence of strength to suppresse apprehend and take the said persons that shall bee so vnlawfully assembled And if the said persons so vnlawfully assembled after such cammandement or request by proclamation made shal continue together and not endeauour themselues to returne towards their habitations houses or places from whence they came in as short time as they may conueniently Then it shall be lawful to euery I. of peace sherife and also euery mayor bailife and other head officer of any citie or town corporat to euery other person hauing authoritie as is aforesaid after such commandement or request by proclamation made and to such persons as shal be assembled with any Iustice of peace or sherife or with any mayor bailife or other head officer of any citie or town corporat and with euery other person hauing authoritie as is aforesaid to suppresse apprehend take those persons so vnlawfully assembled which after such proclamation made shall continue together and not endeauour thēselues to returne towards their habitations c. And if the said persons so vnlawfully assembled together or any of them shall fortune to be killed slaine maihemed or hurt in or about the suppressing or taking of them then euery such Iustice Sherife Maior c. and euery other person hauing authoritie as is aforesaid and all and singular persons by him or them assembled shal be frée discharged and vnpunishable as well against the king as against all and euery other person and persons of for or concerning the killing maiheming or hurting of any person or persons so vnlawfully assembled that shall be killed slaine maihemed or hurt about or by occasiō of taking or suppressing of thē c. 1. M. 12. 38 All and euery Copieholder and Customary holder being a yeoman artificer husbandman A copieholder being required refuseth to serue or labourer being of the age of xviij yeares or more vnder the age of lx years not sicke impotent lame maihemed neither hauing any other iust or reasonable excuse or cause to the contrary and beeing required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commission or letters c. they declaring their said authoritie or being required by the immediat Lord or Lords of whom such copie or customary holds then shall be holden to serue the King for any the causes aboue rehearsed and refuse so to doe shall only during the life of such person or persons so refusing forfeit to his Lord or Lords of whom such copie or customarie holds then shal be immediatly holden should be holden during the life of such person or persons so refusing in case he had not refused all their copie customarie holds And it shal be lawful to euery such Lord c. his heirs or assignes of whom such copy or customary holds shal be immediatly holden should haue bin holden in case that such persons or persons had not so refused to enter
take into his or their hands or possessions all such copie customarie holds so holden of thē or any of thē immediatly to retain the same during only the life of such offēdor or offendors in such maner as he or they should haue had the rents or seruices of such copy or customary hold in case such person or persons so refusing had not refused A farmer required refuseth to serue 39 All euery farmer being a yeoman husbandman artificer or labourer 1. M. 12. beeing of the age of xviij yeares or more vnder the age of lx years not sick impotent lame maihemed nor hauing any other reasonable excuse or cause to the contrary being required by the sherife Iustice or Iustices of peace or other hauing authoritie by this act or by commissiō or letters c. they declaring their said authoritie or being required by their said Landlord or Landlords for the time being to whom the rents of such farmes shal be then rising growing or comming to serue the king for any the causes aboue rehearsed and refuse so to doe shall during only the life of such farmer or farmers so refusing forfeit and loose to such Landlord and Landlords as should haue had the rents of such farmer during the life liues of such person persons so refusing all their said farmes And it shal be lawfull to euery such Landlord c. their heires and assignes to whom the rents of such farmes should haue bin due during the life of such person or persons so refusing in case he or they had not refused to enter take into his or their hands or possessiō al such farms to retain the same only during the life of euery such offēdor or offendors But after the death expiration or determinatiō of the interest or terme of yeares of euery such copyholder customary holder or farmer as so shal offēd forfeit any of the said copi-holds customary holds or farmes as is aforesaid thē euery such person as should or ought to haue had the copy holds customary holds or farmes after or by the death expiration or determination of the interest or terme of years of such copie-holder customarie holder or farmer in case such copie-holder customarie holder or farmer had not so offended ne forfeited shall and may haue the same copie-hold customarie holds and farmes by entrie action admission or otherwise in like manner forme and condition and by such meanes as they and euery of them should might or ought to haue had if no such forfeiture or offence had bin had done or committed 40 If any person shal be spoken vnto moued 1. M. 12. or stirred to make any cōmotion Disclosing a commotion when one is moued insurrection or vnlawfull assembly for any of the intents aboue mētioned and doe not within 24. houres next after he shal be spoken vnto moued or stirred vnlesse he haue good and reasonable cause of excuse declare the same vnto one Iustice of the peace or Sherife of the said countie or to the Mayor Sherifes Bailifes or other head officers of any citie or town corporat where such commotion c. shall be had he shall suffer imprisonment by the space of thrée moneths without baile or mainprise vnlesse he shall be discharged by 3. Iustices of peace whereof one to bee of the Quorum of the same shire where the offence shall be committed 1. M 12. 41 If any person béeing aboue the age of eightéene yeares An able person required refuseth to serue and vnder the age of thréescore beeing able to serue and not sicke lame or impotent shall be required by any Iustice of peace or any Sherife of any Countie where any such assembly shall be or by any Mayor Bailife or other head Officer of any citie borough or towne corporat or by any other by the commandement of any such Iustice Sherife Maior c. to goe with him or them to suppresse the persons vnlawfully assembled in manner and forme aforesaid then euery person which so béeing able and required doth willingly and obstinately refuse so to doe shall suffer imprisonment for one whole yeare without baile or mainprise 1. M. 12. 42 If the King shall by his Letters patents make any Lieutenant in any Countie or Counties of this Realme Attendance vpon a lieutenant for the suppressing of any commotion rebellion or vnlawfull assemblie then as well all Iustices of peace and the Sherife and Sherifes of the same as all Maiors Baylifes and other head officers and all inhabitants and subiects of any Countie Citie Borough or towne corporat within euery such Countie shall vpon declaration of the said Letters patents and request made bee bound to giue attendance vpon the same Lieutenant to suppresse any commotion rebellion or vnlawfull assemblie vnlesse hee so required haue any reasonable excuse for his not attendance vpon paine of imprisonment for one whole yeare 1. M. 12. 43 The order and forme of the Proclamation that shall be made by the authoritie of this Act shal be as hereafter followeth The forme of the Proclamation or with the like order and words in effect viz. The Iustices or other persons authorized by this Act to make the said Proclamation shall make or cause to be made an Oyes and after that shall openly pronounce or cause to be pronounced these wordes or to the like effect The King our Soueraigne Lord chargeth and commandeth al persons being assembled immediately to disperse themselues and peaceably to depart to their habitations or their lawfull businesse vpon the paine contained in the act lately made against vnlawfull and rebellious assemblies And God saue the King 1. M. 12. 44 If any person or persons doe or shal molest let hinder Hinderance of the Proclamation or hurt any person or persons that shall proclaime or go to proclaime according to the proclamation and order aforesaid whereby such proclamation shal not be made then euery such person so molesting or hurting c. and hauing knowledge of his message shall incurre such daunger and suffer such paines and forfeitures the persons assembled to whom the proclamation should haue beene made should by this Act incurre for not obeying the Proclamation if it had béene made or for doing after the Proclamation of any the things before expressed And also all such persons beeing assembled to the number aforesaid to attempt or doe any the things aforesaid to whom Proclamation should or ought to haue beene made if the same had not beene let shall likewise in case they doe after put in vre and doe any the things aforesaid hauing any wayes knowledge of the let so made or by any meanes procuring the same let incurre like danger and suffer like paines and forfeitures aforesaid in euery their degrees as though the proclamation had beene made any clause article c. in this Act c. notwithstanding Other mens right saued 45 All
and euery the heire and heires of all and euery the offendor and offendors in any the cases aforesaid and all and euery person and persons 1. M. 12. bodies politicke and corporat their heires successors and executors and euery of them other than such person and persons onely as shall be attainted conuicted and outlawed of any the foresaid offences of felonie shall haue hold enioy all such right title entrie interest leases possessions rents conditions profits and aduaÌ„tages as they or any of them shall or of right ought to haue in or to any mannors lands rents reuersions seruices or hereditaments whatsoeuer or in or to any part thereof in as large manner to all intents as if such attainder had neuer beene had any thing in this act c. notwithstanding c. Sauing to euery person and persons bodies politicke and corporate and their successors their liberties and franchises in such maner as if this act had neuer beene made Procuring others to offend 46 If any person or persons doe moue stirre 1. M. 12. or procure any person or persons to commit any of the offences in this Act specified then euery such person and persons which shall procure stirre or mooue any person or persons so to offend shall suffer such punishment by imprisonmeÌ„t without baile or mainprise as is before expressed in this Act against counsellors of such offendors Vnlawful assemblies by xl or aboue 47 If any persons to the number of fourtie or more 1. M. 12. shall assemble together in forcible manner vnlawfully and of their owne authoritie to the intent to execute doe or put in vre any of the things aboue specified or to doe any other felonious or rebellious act or acts and so shall continue together by the space of three houres after proclamation shall bee made at or nigh the place where they shall be so assembled or in some market towne thereunto next adioyning and after notice to them giuen thereof Then euery person so willingly assembled in forcible manner and so continuing together by the space of three houres after such proclamation made and notice thereof giuen shall bée adiudged a felon A lieutenant shall not appoint a deputie 48 No lieutenant that shall bee made by authoritie or colour of this Act 1. M. 12. or for to execute this Act shall constitute vnder him or in his place any deputy nor shall call or appoint to appeare before him by the onely authoritie of lieutenancie or of commission of lieutenancy any person for any cause or matter whatsoeuer saue onely for the causes and matters expressed in this Acte and for none other Aiding of the offendors after the offence 49 No person or persons shall bee put to any losse forfeiture paine 1. M. 12. or punishment of life land or goods as accessorie to any person or persons that shall commit any of the offences contained in this act for receiuing comforting or aiding of any such offendor after such act committed or done 1. M. 12. 50 No attainder or conuiction of any person or persons The attainder of those offences no corruption of blood for any offence or offences herein contained shall be any corruption of blood betwixt the offendor and any of his auncestors or such person or persons as should haue beene heire to such offendor if no such attainder or conuiction had béene had sauing to euery person and persons bodies politicke and corporat c. their liberties and franâ—â—â—ses in such manner as if this Act had neuer beene made ⧠Of Force forcible Entries and forcible retayning of possessions Vnlawfull force an enemy to peace 1 FOrce and violence executed without warrant of Law be so méere contrarie to the peace and justice of the Realme as disobedience is to loyaltie and contempt to gouernment for whosoeuer doth make a Forcible entrie into lands in the possession of an other doth secretly reuolue in his mind and distrust to himselfe that there is no Law in the Realme to redresse his wrong or no ministers to execute the same and therefore he will sit in iudgement of that cause himselfe and take into his owne hands the distribution of justice and assume into his possession by the strength of his arme what the phantasie of his head shall resolue to be his due whereas the Law in conuenient time would truely satisfie him whether the land in question by the rules of justice be his or not and also assigne him a milde and calme course to recouer all his whole dutie with valuable damages for the time he is iniured And because this force and forcible entrie into lands is so opposite and méere repugnant to the peace and justice of the Realme and tendeth so much to the dishonour of the King and his Crowne and the discredit of the Law that any person by byrth and oath deuoted to the obedience of the King and his Lawes should presume of his owne authoritie by force and strong hand to resist them both and as it were in contempt of them violently to intrude himselfe into an other mans possession before the law hath decided his title therein Therefore the wisedome of the Realme hath by the space of many generations first prouided to restraine those forces and forcible Entries and next to inflict condigne punishment vpon them which were offendors therein Whereupon by a Statute made AnÌ„ 5. There shal be no forcible entry into lands R. 2. the King defended St. 5. R. 2. 7. that none from thenceforth should make any Entrie into any lands and tenements but in case where entrie is giuen by the Law and then not with strong hand nor with multitude of people but only in a peaceble course maner And if any from henceforth do the contrary and thereof be duely conuict he shall be punished by imprysonment of his bodie and thereof ransomed at the Kings pleasure 2 But for that the said Statute of 5. R. 2. did giue no spéedie remedie to those which were expelled out of their lands or tenements nor assigned any speciall persons to suppresse the said disorder Therefore by an other Statute made AnÌ„ 15. St. 15. R. 2. 2 R. 2. it was further ordained The penaltie of forcible entrie into lands or benefices That when any such forcible entrie shall be made into lands or tenements or into any Benefices or offices of the Church and the complaint thereof come to the Iustices of the peace or any of them that the same Iustices or Iustice take sufficient power of the County and go to the place where such forcible entrie is made if he or they find any that holdeth such place forcible after such entrie made they shall be taken and put into the Gaole there to abide conuict by the record of the same Iustices or Iustice vntill they haue made fine and ransom to the King And all they of the Countie aswell the Shirife as other
shall be attending vpon the Iustices to go and assist the same Iustices to arrest such offendors vpon paine of imprisonment and to make fine to the King 3 And forasmuch as the said Statute of 15. R. 2. doth not extend to Entries into tenements in peaceable manner and after holden with force nor if the persons which enter with force into any lands or tenements be wholy remoued and departed before the comming of the said Iustices or Iustice Neither is there any paine ordained if the Shirife do not obey the precepts of the Iustices in this behalfe St. 8. H. 6. 9. Therefore by an other Statute made An̄ 8. H. 6. it was ordained that the said former Statutes should be continued and executed And further that where any do make such forcible entrie into lands tenements or other possessions or hold them forcible Holding possession by force after complaint thereof made within the said Countie where such entrie is made to the Iustices of peace or to one of them by the partie grieued that the Iustices or Iustice so warned within a conuenient time cause the said Statute to be executed and that at the costes of the partie so grieued And whether such persons making such Entries be present or gone before the comming of the said Iustices or Iustice presently the same Iustices or Iustice in some good Towne next vnto the tenements so entred or in some other conuenient place according to their discretion shall haue authoritie to inquire by the people of the same Countie aswell of them that made such forcible entries into lands or tenements Feoffement of lands for maintenance as of them which hold the same with force And if it be found before any of them that any doth contrarie to this Statute then the said Iustices or Iustice shall cause the lands or tenements so entred or holden as aforesaid to be reseised and shal put the partie so put out in full possession of the same lands or tenements so entred or holden as before they were entred or holden And if any person after such entrie into lands or tenements holden with force make a feoffement or other discontinuance 〈◊〉 any Lord or other person to haue maintenaunce or to take away and defraud the possessor of his recouerie in any wise if after in an Assise or other action thereof to be taken or pursued before Iustices of Assise or other the Kings Iustices whatsoeuer they be by due inquirie thereof to be taken the same feoffements and discontinuances may be duely proued to be made for maintenance as is aforesaid then such feoffements or other discontinuances so as before made shall be void And if any person be put out or disseised of any lands or tenements in forcible manner or put out peaceablie after holden out with strong hand and armes against the Iustice of peace or after such entry any feoffement or discontinuance in any wise thereof be made An Assise or action of trespas againste disseisour by force to defraude take away the right of the possessor the party greiued in this behalfe shall haue an Assise of Nouel disseisin or a writ of Trespas against such disseisor And if the party grieued recouer by Assise or by action of Trespas and it be found by verdict or in any other manner by due forme of the Law that the partie defendant entred with force into the lands tenements or them after his entrie did hold with force then the plaintife shall recouer treble dammages against the defendant and moreouer the defendant shall make fine and ransome to the King The authority of officers of Cities and Townes enfranchised And the Maiors Iustices and Iustice of peace Shirifes and Bailifes of Cities and Boroughes hauing fraunchise shall haue in the said Cities Townes Boroughes like authoritie to auoid such Entries and in other articles aforesaid rising within the same as Iustices of peace and Shirifes in Counties and Shires haue 4 As by the foresaid Statute of 8. H. 6. if any person after entrie into lands or tenements holden with force shal make any feoffement or other discontinuance thereof to any Lord or other person to haue maintenance or to defraud the possessor of his recouery then the same feoffements discontinuances shall be void So by an other Statute made before that Anno 4. H. 4. St. 4. H. 4. 8. it was inacted A speciall Assise against a disseisor with force That if any man in his owne right to his vse or in an other mans right to his vse doth make any forcible entrie into an other mans lands by way of maintenaunce or doth take or carry away any goods of the possessors of the fréehold after any such forcible entrie then if the partie grieued or other lawfull man will affirme that the entry was made in such forcible manner the Chancellor of England may graunt to the partie greiued a speciall Assise And if the disseisor be attainted of such forcible disseisin he shall be one yeare imprisoned and pay to the partie grieued his double dammages and also dammages for his goods And one of the Iustices of the one Bench or of the other or the chiefe Baron of the Exchequer if he be learned in the law shall be named in euery such speciall Assise And no Supersedeas shal be granted to the contrarie of such Assise 5 Wherefore if a man be disseised by force of any lands or tenements by way of maintenance or that his goods be taken or carried away after such entrie made Or that he be put out or disseised of his lands in forcible manner Or that he be put out peaceablie and after holden out with force against a Iustice of peace Or after such entrie any feoffement or discontinuance be made to defraud and take away the right of the possessor then the partie grieued as his case requireth may haue a speciall Assise against the disseisor and recouer his double dammages Seuerall remedies for seuerall offences by force and dammages for his goods and the disseisor shall be one yeare imprisoned according to the foresaid Statute of 4. H. 4. St. 4. H. 4. 8. Or else he may haue an Assise of Nouel disseisin or an action of Trespas against the disseisor and recouer treble dammages and moreouer the disseisor shall make fine and ransom to the King according to the before rehearsed Statute of 8. H. 6. St. 8. H. 6. 9. Or if the plaintife will omit the benefit of recouerie of his dammages he may only craue and vse the assistance of a Iustice of peace to sée and remoue the force to record it to inquire of it and to make him restitution according as the truth of his case shall appeare to the said Iustice vpon his owne sight or be found by inquisition according to the former prouision of the said Statute of 8. H. 6. Or lastly he that is put out or holden out of his lands with force
may haue a writ directed out of the Chauncerie to the Shirife only or to the Shirife and the Iustices of peace vpon the Statute of Northhampton made AnÌ„ 2. Ed. 3. St. 2. E. 3. 3. commaunding that proclamation may be made vpon that Statute 6 And for that it is conuenient that he who is with force expelled out of his lands or by force detained from the same should not be long kept out of possession thereof but that there should be a spéedie redresse to restore him to his owne and also because it is meant that the inquisition of that force should be made by men of good estate and so the more like to be indifferent of better vnderstanding and to declare the truth in those cases Therefore by the foresaid statute of Anno 8. Sta. 8. H. 6. 9. H. 6. it was moreouer ordained That when the said Iustices or Iustice shall make such inquiries as are beforesaid they shall cause their warrants and precepts to be directed to the Shirife of the same Countie A precept to the Shirife to impannell a Iurie commaunding him on the Kings behalfe to cause to come before them and euery of them sufficient and indifferent persons dwelling next about the lands so entred vpon as before to enquire of such entries whereof euery man that shall be impannelled and may inquire in this behalfe shall haue lands or tenements to the value of xl s. by the yeare at the least aboue reprises and that the Shirife returne issues vpon euery of them at the day of the first precept returnable xx s. and at the second day xl s. and at the third day fiue pounds and at euery day after the double And if any Shirife or Baylife within a fraunchise hauing the returne of the Kings writs be slacke and make not execution duly of the said precepts to him directed to make such inquiries he shall forfeit to the King xx.li. for euery such default Shirifes forfaiture and moreouer shall make fine and ransom to the King And aswell the Iustices or Iustice aforesaid as the Iustices of Assise and euery of them at their comming into the Country to take Assises haue power to heare and determine such defaults and negligences of the said Shirifes and Bailifes and euery of them aswell by bill at the sute of the party greiued for himselfe as for the King to sue by Inditement only to be taken for the King And if the Shirife or Bailife be duly attainted in this behalfe by Indictment or by bill he which sueth for himselfe and for the King shall haue the one moitie of the forfaiture of xx li. together with his costs and expences The proces And the same proces shall be made against such persons indited or sued by bill in this behalfe as should be against persons indited or sued by writ of Trespas with force and armes against the Kings peace 7 The forme of which precept by a Iustice of peace Buck. to the Shirife to returne a Iurie to enquire of Forcible entries is this Edwardus Tirrell miles vnus Iusticiariorum dnÌ„i Regis The forme of a Precept to the Shirife to returne a Iurie ad pacem in Comitatu Buck. conseruandam assignatorum vicecomiti eiusdem Comitatus salutem Ex parte dicti Domini Regis tibi mando quod venire facias coramme apud Thornborough in Comitatu praedicto 10. die Octobris proximo futuro 24. probos sufficientes legales homines de viceneto de Thornborough praedicto quorum quilibet habeat 40. solidos terrarum tenementorum vel reddituum pet annum ad minus vltra reprisas ad inquirendum super sacramentum suum si A. B. de Adstock in dicto Comitatu Buck. blacksmith alij malefactores pacis dicti domini Regis perturbatores in vnum mesuagium 20. acras terrae alia tenementa de C. D. husband de T. praedict ' manu forti super possessionem dicti C. D. ingressi sunt aut eadem cum fortitudine adhuc tenent occupant Et videas quod super quilibet Iuratorum in hoc parte impan nellandorum xx s. ad primum diem returnes hoc nullatenus omittas sub pena xx.li. quam noueris te incursurum si in executione praemissorum tepidus aut remissus fueris Et habeas ibi hoc praeceptum Datur apud Thornton xx die Septemb. Anno Regni domini nostri Regis Iacobi c. tertio 8 The forme of an inquisition or verdit of the Iury which are returned and sworne to enquire of forcible Entrie into lands or tenements or of the forcible detayning of them taken by a Iustice of peace is this Buck. The forme of an Inquisition of forcible entrie viz. Inquisitio pro domino Rege capta apud Buckingham in ComÌ„ praedicto xx die N. Anno Regni domini nostri Regis Iacobi c. quarto super sacramentum A. B. C. D. E. F. G. c. coram Thoma Temple milite vno IusticiarÌ„ dicti domini Regis ad pacem in dicto Comitatu conseruandam assignatorum Qui dicunt quod vbi H. I. de Tyngswicke in Comitur praedict husbandman qui legitime pacifice seisitus fuit in dominico suo vt defecdo de vno mesuagio cum pertinentijs in Tyngswick praedicto possessionem suam sic continuauit quousque L. M. de Maydsmoorton in Comitatu praedicto laborer alij malefactores pacis dicti domini Regis perturbatores xxx die O. iam vltimo elapso vi armis viz. cum baculis gladijs arcubus sagittis fustibus gunnis balistis in mesuagium praedictum c. intrauerunt ipsum H. I. inde expulerunt idem mesuagium c. a praedicto xxx die O. vsque ad diem captionis huius inquisitionis c. cum huiusmodi fortitudine potentia tenuerÌ„ occupauerunt in magnam pacis dicti domini Regis perturbationem contra formam statuti in tali casu editi ê“uisi vbi nullus eorum nec aliquis alius cuius statum ipsi aut aliquis eorum habuerunt aut habuit aliquid in eodem mesuagio c. aut aliqua inde parcella habuerunt aut habuit infra tres annos proximos ante ingressuÌ„ suum praedictuÌ„ nequè aliquo tempore praecedente ad notitiam Iuratorum pÌ„dictorum 9 And for that the said Statute of 8. H. 6. hath ordained That if it be found before any of the said Iustices of peace that any doth contrarie to that Statute then the said Iustices or Iustice shall cause the lands or tenements so entred or holden with force to be reseised and shall put the partie so put out in full possession of the same lands so entred or holden as before they were entred or holden Therefore when the Iustice of peace shall by the said Inquisition be informed or by the view of his owne eye perceiue that any such forcible entrie into any
lands hath béen made or after the same lands be holden with force he is either himselfe to reseise the same lands and put the partie in possession againe who was so forciblie expelled or kept out of possession or else he is to make his Precept to the Shirife of the same Countie to make restitution to the same partie The forme of which warrant or precept is this viz. Georgius Throckmorton Miles Buck. A warrant to the Shirife to make restitution vnus Iusticiariorum dnÌ„i Regis ad pacem in dicto Comitatu conseruandam assignatorum VicecomÌ„ eiusdem Comitatur salutem Cum per quandam Inquisitionem patriae coram me captum apud East-Claydon in Comitatu pÌ„dicto 2. die Dec. Anno regni dnÌ„i nostri Iacobi quarto suê‘ sacrÌ„m A. B. C. D. E. F. c. ac per formam statuti in hmÌ„odi casu ê“uisi compertuÌ„ fuerit qd ' L. M. de Horwood magna in ComÌ„pÌ„dict ' husb alij malefactores pacis dicti dnÌ„i Regis perturbatores 26. die No. anÌ„ dicti dnÌ„i Regis nunc quarto in quoddam messuagiuÌ„ c. N. T. in East-Claydon pÌ„dicta vi armis ingressi fuerunt ac ipsum N. T. inde expulerunt pÌ„dictuÌ„ mesuagiuÌ„ c. a pÌ„dicto 26. die c. vsque ad dictuÌ„ secunduÌ„ diem Decemb. manu forti cum potentia tenuerunt ê“ut per InquisitioneÌ„pÌ„dictam plenius liquet de recordo Ideo ex parte dicti dnÌ„i Regis tibi mando precipio quod ad hoc debitur requisitus vna cum posse Comitatur tui si necesse fuerit accedas ad mesuagiuÌ„ caetera praemissa ac eadeÌ„ cum ê‘tinentijs reseisiri facias pÌ„fatuÌ„ N. T. ad in plenam possessioneÌ„ suam inde ê“ut ipse ante ingressuÌ„pÌ„dictuÌ„ fuerat restituas mitti facias iuxta formaÌ„ dicti statuti de Ingressibus manu forti factis aediti ê“uisi Et hoc nullatenus omittas sub ê‘iculo incumbentur Teste me pÌ„fato G. Throckmorton Datum apud Fulbrooke c. tertio die Decembris c. 7. Ed. 4. 18. 4. H. 7. 18. 15. H. 7. 5. 10 If a man be indited before the Iustices of peace in the County Restitution awarded out of the K. bench for that he did with force expell and put another out of his possession of certaine lands within the same County and after this indictment is remoued into the kings bench by a Certiorari the Iustices of the same court may award a writ of Restitution to the shirife of the same County to restore possession to the party so expelled though the words of the statute of 8. H. 6. doe giue that authority only to the Iustices of peace of the County where the forcible entry is made and if he be indited before Iustices to heare determine and after the record is remoued into the K. Bench the Iustices of the same court may award restitution for that they who haue supreme authority and do represent the K. person now haue before them the record whereby the party was indited 11 By the words of the foresaid statute of 8. H. 6. it doth appeare No restitutioÌ„ but where the force is found by inguisition that one Iustice of peace alone may remoue the force 21. H. 6. 5. and also enquire thereof so may diuers Iustices But by the aforesaid statute no restitution can be made to the party put out of possession if the said expelling or putting out of possession be not found by inquisition nor but in case where the words of the Indictment vpon the statute of 8. 14. H. 6. 16. H. 6. be adhuc extratenet 12 In the foresaid statute of 8. H. 6. there is a prouiso That they which kéepe their possessions by force in any lands and tenements whereof they or their auncestors or they whose estate they haue in such lands or tenements haue continued their possession by the space of three yeares or more be not endammaged by the force of the said statute And by one other statute made Anno 31. St. 31. El. 11. Eliz. for the explanation and declaration of the meaning and intent of the said prouiso and of the law therein it was ordained declared and enacted That no restitution vpon any indictment of Forcible entry Where no restitutioÌ„ against thrée yeares possession or holding with force shal be made to any person or persons if the person or persons so indited hath had the occupation or hath béene in quiet possession by the space of thrée whole yeares together next before the day of such indictment so found his her or their estate or estates therein not ended nor determined which the party indited shall and may alledge for stay of restitution and restitution to stay vntill that be tried if the other will deny or trauerse the same And if the same allegation be tried against the same person or persons so indited then the same person or persons so indited to pay such costs damages to the other party as shal be assessed by the Iudges or Iustices before whom the same shal be tried the same costs and dammages to be recouered and leuied as is vsuall for costs and dammages contained in iudgements vpon other actions If a man hath béene in quiet and peaceable possession of lands thrée yéeres or more by a good title 4. 5. P. M Dy. 141. and then is expelled and disseised of them and the party offending is therefore indited vpon the statute of 8. H. 6. and the disseisée who was expelled is restored to his possession by a writ of Restitution and is in possession accordingly in this case he cannot iustifie the detainer of the possession of those lands by force of the foresaid prouiso contained in the statute of 8. H. 6. because his possession was interrupted discontinued for that possession must be thrée whole yéeres together without interruption before the said party may by the said prouiso kéepe his possession by force And likewise if he that is a iust and lawfull possessor of lands by the space of twenty yéeres together 3. 4. P. M. Dy. 141. be once clearely wholly remoued from the possession of the same land he cannot come againe with force and a multitude of people to put himselfe in possession therof and detaine the same with force by vertue of the prouiso in the said statute of 8. H. 6. because his possession was interrupted Neither in this case if he be indited of a Forcible entry according to the statute of 8. H. 6. shall he be relieued touching his restitution by the foresaid statute of 31. El. for that he had not the occupation nor had béene in quiet possession by the space of thrée whole yeares together of the same lands next before the day of such indictmeÌ„t found But if a man be seised of a lawfull possession by the space of thrée yéeres of any
land without interruption 22. H. 6. 18. Fitz. Na. B. 249. he may kéepe his possession by force against all others And he is neither to be remoued from his possession by a Iust of peace though it be found by inquisition that he held that land by force nor yet by an action of Forcible entry brought against him vpon the said statute of 8. H. 6. Otherwise it is of a disseisor where restitution notwithstanding three yeares possession or of a man that commeth to land by a wrongful and vnlawfull title for if he hath detained the land by force thrée yeares 14. H. 7. 28. or twenty yeares he may be indited by vertue of the statute of 8. H. 6. before a Iustice of peace of forcible detaining of the same land and that being found the said Iustice of peace is to reseise the land and to award restitution to the party disseised or expelled thereof And also the same disseisor shall make fine and ransome to the King cui nullum tempus occurrit whose peace is brokeÌ„ by this long and vnlawfull detaining of the possession of another mans land by force But the party disseised expelled or kept out of possession cannot in this case maintaine an action of Forcible entry vpon the said statute of 8. H. 6. against the said disseisor séeing he hath omitted his time suffered the disseisor to gaine of him thrée yeares possession therby the benefit of the same prouiso contained in the said statute of 8. H. 6. 13 If a man who hath made an Entry vpon the possession of another of any lands or tenements by force or doth hold lands by force 1. R. 3. 4. after a peaceably entry made doe doubt that he shal be thereof indited before a Iustice of peace vpon the statute of 8. H. 6. and that restitution will be thereupon awarded he may haue a Certiorari out of the Kings Bench ready and when the Bill of Indictment is found he may presently deliuer it to the court and that shal be a Supersedeas to stay Restitution A Supersedeas to stay restitution for that by this Certiorari the indictment shal be remoued And though the indictment be found after the Teste of the writ of Certiorari it is not materiall for they be both the Kings Courts And when an indictment vpon the said statute of 8. H. 6. 2. 3. P. M. Dy. 122. is remoued into the kings Bench and that the party indited doth tender to trauerse the same the Iustices of the same Bench may graunt or stay restitution at their discretion according as the truth of the Title shall appeare to them But if a speciall sessions be procured to inquire of a Forcible entry or detaining of possession according to the said statute of 8. H. 6. and the Iustices to whom complaint is made do repaire to the place supposed to be entred vpon or holden with force 2. 3. P. M. Dy. 187. and doe sée the same according to the said statute after they do inquire thereof and that is found and thereupon they graunt restitution no other Iustice of peace can graunt a Supersedeas to stay the same restitution for by the said statute no other Iustice hath authority to graunt restitution but he or they to whom the complaint is made and before whom the force is found the writ shal be graunted vnder the Teste of one of them onely sauing the Iustices of the K. Bench who haue supreme authority and where the law doth intend that the King himselfe doth sit 14 Whereas the words of the foresaid statute of 8. H. 6. be Sta. 8. H. 6. 9. If it be found before any of the Iustices or Iustice of peace that any doth contrary to this statute viz. enter vpon or hold lands with force then the said Iustices or Iustice shall cause the lands or tenements so entred or holden to be reseised and shall put the party so put out in full possession of the same landes or tenements so entred or holden as before they were entred or holden And therefore if the father be put out of possession of lands by force and dieth before or after inquisition thereof his heire shall not haue restitution thereof vpon the said statute of 8. H. 6. for that he was not the same person which was put out And the same Law is if after the death of the father Where force found and no restitution dying seised of certaine lands a stranger doth abate and holdeth the same lands by force against his heire before he had gotten any possession indéed and that force is found before a Iustice of peace by an inquisition the same heire shall not haue restitution by the words of the said statute for that the same heire had but a possession in law and was not in actuall possession of that land neither is hée that party who was put out And so it is if tenant for terme of yéeres of certaine lands be put out of his terme by force and die though after his death the force he fâ—und by inquisition taken by a Iustice of peace his executors shall not be restored to the possession of that land by the same Iustice of peace causa qua supra But yet in the cases aforesaid the offendor shall be punished by imprisonment fine to the K. for by his forcible entry he hath broken the peace St. 15. R. 2. 2. 15 Whereas by the before rehearsed statute of 15. Rich. 2. it is ordayned That when any forcible entry shal be made into lands and complaint thereof come to a Iustice of peace he shall go to the place where the entry was made and if he find any that hold any such place forcibly after such entry made they shal be taken and put into the Gaole c. The forme of which Iustice of peace Mittimus whereby he shall send the same offendors to the Gaole is this viz. Francis Fortescue knight Buck. A Mittimus to send to the gaole such as do hold land by force one of the Iustices of peace of our Soueraigne Lord the King within the county of Buckingham to the keeper of his Ma. Gaole in Aylesbury in the said county and to his deputie and deputies there and to euery of them greeting Vpon complaint made to me by A. B. of Whaddon in the said county husbandman that C. D. E. F. of S. in the said county labourers and other malefactors and disturbers of the Kings peace had forcibly and with strong hand entred into his house c. in Whaddon aforesaid and him expulsed the same yet held with force I went this present day to the said house and there found the said C. D. E. F. holding the said house c. with swords and bucklers bils and staues to the great disturbance of his Ma. peace and against the forme of the said statute in that behalfe ordained And therefore I send you
by the bringers hereof the bodies of the said C. D. E. F. conuicted of the said forcible holding by my record commanding you and euery of you in his Ma. name that you receiue them safely keepe them in your said Goale vntill they shall haue made their fine and ransome to the King and be deliuered thence by the order of the law Hereof faile you not vpon the perill that will fall thereof Dated at Salden the 30. day of I. in the third yere of the raigne of our soueraign Lord K. Iames c. 16 And though the words of the before rehearsed stat of 8. H. 6. be Vpō cōplaint made to the I. of P. or one of thē c. yet those words do not alwais bind a I. of P. to expect the cōplaint of the party grieued or to omit to do his duty in inquiring of repressing punishing of force because the party grieued by the forcible entry or detaining of possessiō is ignorāt in séeking lawfull redres for his receiued iniury or doth intēd to take his remedy by other means but a I. of P. hauing notice of such forcible entry A Iustice may inquire of forcible entries without complaint or detaining of possession by force though it be by others and not by the party grieued may and of duty ought to goe to the place where the same force is committed to make inquisition thereof 7. E. 4. 18. and if the force be found to make restitution to the party expelled or put out by force And so by his meanes the offendor shall be punished according to his desert the partie wronged shal be restored the king shall be intituled to a fine all which without the said Iustices diligence would be omitted An action of forcible entry 17 If a man that is seised of lands or tenements of an estate in fée simple Fitz. Na. B. 248. fée taile for terme of his owne life or for the terme of anothers life be disseised or expelled thereof by force he may haue an action of Trespas of forcible entry vpon the foresaid statute of 8. H. 6. against him or them that did so disseise or expell him thereof and so he may if he be put out 6. H. 7. 12. or disseised of his lands or tenements peaceably and after the disseisor or he that doth expell him 14. H. 6. 1. doth hold them with force And in like sort he may haue the same action 3. E. 4. 19. 10. E. 4. 11. if any doth enter into his said lands or tenements with force after doth defend and hold them by force then he which is so put out and holden out with force may haue this action though the words of the statute be in the disiunctiue viz. disseised with force or disseised quietly after holden out with force for that the intent of the statute was to punish all such forces whether it were vpon the entry disseisin made or vpon the holding and detaining of the land with force in all which cases he who is so disseised or put out may haue an action of forcible entry vpon the said statute of 8. H. 6. and shall recouer his damages and costs to the treble of that which shal be found by the Enquest that he is endammaged 19. H. 6. 6. 22. H. 6. 57. 9. H. 6. 19. hath spent in his suit The writ of forcible entry must be Vi armis as wel for the occupation as for the first entry And it is to be noted that the writ declaration in an action of forcible entry must be that the def entred vi armis and not illicite or by any other such words for if the writ be otherwise it shall abate seeing a writ of forcible entry is alwaies vi armis 37. H. 6. 23. 38. H. 6. 1. and proces of Outlawry lieth in it and the declaration must expresse the certainty of the lands whereupon the defendant did make his forcible entry and which they be and not suggest that he did enter vpon certaine lands in D. And in this action of Forcible entry 35. H. 6. 6. 49. Ed. 3. 2. Co. lib. 3. 12. and in all actions Quare vi et armis a Capias doth lie and where a Capias doth lie in the proces there after iudgement a Capias ad satisfaciendum doth lie and there the king shall haue a Capias pro fine Who may brīg an actiō of forcible entry 18 None can pursue or maintaine this action of Forcible entry Fit Na. B. 248. but he who hath fréehold at the least in the lands or tenemēts so entred vpon for tenant for terme of yéeres or a copyholder cannot maintaine this action for that the words of the said stat of 8. H. 6. be If any person be put out Sta. 8. H. 6. 9 or disseised of any lāds c. and the words of the writ grounded vpon the said statute be Expulit et disseisiuit and tenant for terme of yéeres or a copyholder cānot be disseised séeing disseisin is alwaies of a fréehold which neither of them haue in that land But if tenant for terme of yéeres or a copiholder be put out by force or put out peaceably after holden out with force of land which either of them doth hold by the said estate then vpon cōplaint made by the party grieued to a I. of peace after inquisition thereof by a Iury the same force found the said Iust may reseise the said lands cause restitution thereof to be made to the party so put out for in this case the same cōplaint may be made to the said I. of P. aswell by him in the reuersiō as by the tenāt for terme of yeres or copiholder séeing he in the reuersiō who is disseised of his fréehold by this forcible entry is may as well be termed the party grieued as the tenant for terme of yéeres or the copyholder for their said particular estates And when the Iustice of peace hath made restitution the particular tenant for terme of yeares or copyholder and also he or they in reuersion shall hold and enioy their said seuerall estates in the same lands 4. 5. P. M. Di. f. 142. in such sort as they did before the said Forcible entry made But if tenant for terme of yeares be expelled out of that land which he so holdeth for the terme of yeeres he in the reuersion cannot bring an action of Forcible entry vpon the statute of 8. H. 6. for the same although it be a disseisin to him for that the expulsion is not done immediatly to him Fit Na Br. 248. 9. H. 6. 19. 19 If a man do enter by force into lands or tenements He that hath title entreth by force wherunto he hath right or title to enter doth put out him who hath the freehold of the same lāds in this case he who is so
As one brought an action of Forcible entry vpon the statute of 8. H. 6. and supposed that the defendant with force and armes entred into a messuage c. 15. H. 7. 17. Whereunto the defendant pleaded The finding of the speciall matter doth charge or discharge the def of force That a stranger was seised of the same messuage c. and enfeoffed him thereof by means wherof he entred peaceably without that that he entred by force And the plaintife made a title and trauersed the barre and the issue was found for the plaintife 1. H. 7. 19. and thereupon it was adiudged that the force should not be inquired of For séeing the title is found against the defendant he shall be conuict of the force as on the other side if the barre had béene found for the defendant the force should not haue béene inquired of for that if the title of the plaintife be not good although the defendant doth enter with force the plaintife hath no cause of action and yet in that case he that entreth with force shal be indited thereof and shall pay a fine to the K. therefore And if the defendant doth enter peaceably where his entry is not lawfull he may plead that he did not enter contra formam statuti and by that meanes the force and the disseisin shal be inquired of But if he make a title to the land by pleading in barre as is aforesaid then it shal be adiudged his owne folly As in a writ of Forcible entry when the defendant doth plead in barre yet he must trauerse the force So in a presentment of Forcible entry Presentment of forcible entry before the Iustices of peace 7. H. 6. 13. it was found and presented that A. was seised of the manor of B. in his demesne as of fée vntill C. did enter vpon the said manor and put him out with force and armes against the kings peace And this presentment being remoued into the kings bench and proces being awarded for the king against C. he appeared and pleaded to the force and armes all that is against the peace not guiltie But the court enforced him to plead to his entry and then he iustified his entry by reason of a remainder intailed to his father of the same land and that his father entred and died seised thereof that he as heire to his father did enter And so it is if a man be indited for the taking away of certaine goods by force and armes he shal answer to the taking and if he be found guilty of the Trespas there shal be no inquirie made of the force and armes 19. H. 6. 32. 27 A man brought an action of Forcible entry against diuers others vpon the statute of 8. H. 6. and counted One action for entring detaining with force that they did with force armes enter vpon his land and put him out and so declared according to the statute whereupon they were at issue And it was found by verdict that some of the defendants entred vpon the land with force and armes and did not hold it with force and some others of them did enter peaceably into the same land and held it with force and armes and so the Iurie taxed the dammages seuerally vpon both those points vpon which verdict it was adiudged That the plaintife should recouer treble dammages against those that entred forcibly and also should recouer treble dammages against those that entred peaceably and held with force and the costs of his suite and further that the said plaintife should bée amerced for that he supposed that all did enter with force which was found against him And in like sort if two be indited of Forcible entry and detayning with force and vpon their Trauerse it is found that one of them entred with force and the other detained with force yet restitution shall be awarded to the party put out of possession Fit Na. B. 249. 28 And further if a man do enter by force or detaine by force any lands or tenements the partie grieued may haue a writ out of the Chauncery directed to the Sherife of the Countie onely or to the Sherife and Iustices of peace or some of them Sta. 2. E. 3. 3. vpon the statute made at Northampton anno 2. Ed. 3. The form of which writ is this viz. Iacobus Dei gratia c. vicecomiti Buck. Salutem A writ vpon the statute of Northamptō Quia datum est nobis intelligi quod quamplures malefactores pacis nostrae perturbatores in conuenticulis congregati armati modo guerrino arraiati apud Westburie accederunt et clausuras et domos quorundam legiorum nostrorum ibidem per vim potentiam armati intrauerunt res redditus prouentus ac alia bona sua quaecunque de quibuscunque possessoribus suis ibidem prouenientia capere consenserunt asportare intendunt ad hoc parant in nostri contemptum ac quorundam de populo nostro ibidem terrorē commotionē manifestam ac contra formam statuti apud Northampton de armis contra pacē domini Edwardi nuper Regis Angliae tertij progenitoris nostri non portandis editi contra pacem nostram Nos statutum praedictum inuiolabiliter obseruari idem infringentes iuxta vim effectum eiusdem statuti castigari facere volentes puniri Tibi praecipimus quod apud villam de Westbury et alibi in comitatu tuo vbi necesse fuerit publice proclamari ex parte nostra firmiter inhiberi facias ne quis cuiuscunque status seu conditionis fuerit ibidē armatus cōtra pacem nostram ac contra formam statuti praedicti accedat nec armatam potentiam nec quicquid aliud ibidem seu alibi facere per quod pax nostra seu statutum praedict ' laedi vel populus noster turbari terreri aut indebité grauari poterit quouismodo sub poena amissionis armorum suorum incarcerationis corporū suorum ad voluntatē nostram prout in statuto praedicto plenius continetur Et omnes illos quos post contra proclamationē et inhibitionem p̄dictam inueneris contraria facientes vel per inquisitionem per te modo forma debita capiendam inueneris fecisse vnà cum armis armaturis suis secum inuentis arrestari capi corpora ipsorum arrestatorum in prisona nostra quousque aliud a nobis pro deliberatione sua habueritis in mandatis saluò custodiri et arma armatur̄ praedicta appreciari nobis inde responderi facias Nos verò in Cancellaria nostra sub sigillo tuo de nominibus arrestatorum praedictorum de armis armaturis suis quae cuiusmodi fuerint de pretio de vero valore eorundē ac de toto facto tuo in hac parte reddatis distinctè apertè sine dilatione certiores hoc
breue nobis remittentes Teste c. S. Manasse c. 7. When the Shirife or Iustice or Iustices of peace to whom the foresaid writ is directed hath caused thrée proclamations to be made according to the purport of the said writ then he or they may enter and make search in the house houses or place suspected and search whether there bee any force of armour or weapons worne borne or vsed against the said proclamation or otherwise he is warranted by the said writ to inquire thereof by a Iurie And if any such armour or weapons be found he must imprison the offendors and seise and praise their armour and weapons so found with them to the Kings vse And if vpon the proclamation they doe depart in peaceable manner then he hath no warrant by the writ to commit them to prison But by this writ the Shirife or Iustices haue onely authority to remoue the force but not to put the party expelled in possession againe What shal be said to be force 29 Because I haue written of force forcible entry and forcible detaining of possession it is conuenient that I should somewhat declare what the law doth accompt to be force and what acts and in what manner done to be forcible This forcible entry or forcible detaining of possession which the statutes before rehearsed do prohibite must be done with some weapons either offēsiue or defensiue as with swords bucklers pykes iauelines bills clubs pitchforkes staues halberts bowes arrowes crossebowes gunnes harneys casting of stones or blocks pouring of hot coales scalding water or lead or with any other thing wherewith one man may hurt the person of another Force by number of seruants And further if a man doth enter vpon the possession of another 10. H. 7. 11. or doth kéepe a possession taken with more seruants or attendants then he doth cōmonly maintaine it is force and it shal be adiudged in him a forcible entry or a forcible detaining of possession And so it is if diuers do come with bowes bills gunnes or other weapons to a ground or to a house and enter without the disturbance of any this is an entry by force for the words of the statute of 5. R. 2. be Sta. 5. R. 2. 7 That none shall enter with multitude of people but only in a peaceable manner And in like sort if a man doe enter peaceably into a house Force by nūber of weapōs and after doth bring into the same more weapons then he and his ordinary family do commonly vsually weare besides those weapons that he doth find in the house whereof hée must make no vse to defend his possession it is a forcible detaining of possession And moreouer if complaint be made to a Iustice of peace that one hath entred forcibly into a house and doth detaine the same with force and the said Iustice of peace doth goe thither and findeth the dores shut and him or those within denying him to enter this is a detayning of possession with force though there be no weapon shewed or vsed and though there be but one person within the house for in this case the offendor doth vse the dore as his buckler to keepe the possession If the Iustice of peace doe find in the house any great number of people or any persons in harneis or hauing harneis lying by them this is a detainer with force Wherefore in all the cases aforesaid the Iustice of peace may take the power of the County breake open the dores commit the offendors to prison 11. Ass p. 25 And if a man do mowe reape sheare or sickle corne or grasse or by such other labor which cannot be done without the hands of man wherunto he hath no title this shal be adiudged an entry disseisin with force If a man do kéepe his beasts by force in another mās seueral ground 27. Ass p. 30 claiming common therein whereas he hath no common there this is a disseisin of the land by force 30. Ass p. 50 And if a man do enter into the possession of another mans land and after doth fell or lop wood there this is a disseisin by force If a man do enter into another mans house or land 11. H. 4. 16. disseise or expel him thereof after doth carry away certaine goods of the disseisées this is a disseisin with force arms and the disseisor shal be imprisoned for it 16. Assis p. 7. 14. Ass p. 18. 12. H. 4. 22. 22. Ass p. 33. 30 A woman couert may commit a disseisin with force Who may cōmit a forcible entry and be imprisoned therfore and so may an infant of the age of 18. yéeres or aboue commit a disseisin by force be imprisoned But if he be of tender age he shal not be adiudged a disseisor with force nor be imprisoned 31 Though force being opposed against the law What force is lawfull to the persons of mē is a professed enemy to the peace of the Realme yet being vsed in the maintenance of the law it is a principall protector of the same peace for the law doth put the sword of iustice into the kings hand to protect himselfe and euery of his subiects from the violēce and oppression of others and to relieue each one that hath iust cause of complaint and thereby to yeeld him peace Wherefore force is to be resembled to fire which being abused may consume the whole house and being wel guided is a meane to yeeld sustenance and comfort to euery person therein And so force may be lawfully vsed by all the kings Officers Ministers and Subiects thereunto deputed with the helpe of all others to assist them when need shall require to execute or aduance iustice or the iudgements of the Law It is lawfull force wherby all offendors in Treason Felony other great crimes be apprehended 7. E. 8. 16. caried to prison brought to their answers receiue condigne punishments inflicted vpon them for their offences It is lawful force wherby the Shirife his Vndershirife Baylifes or Deputies doe with strength apprehend any person by vertue of the kings writs to answere or satisfie the purport of the same writs St. 8. H. 6. 9. It is lawfull force whereby Iustices of peace doe remoue those vnlawfull Entries or vnlawfull detainings of possession which one man doth make into another mans land contrary to the Laws and Statutes abouesaid and whereby they doe put him againe in possession who was wrongfully disseised or expelled thereof And it is lawfull force which Iustices of peace Shirifes Coroners Constables Tithingmen Headboroughes Boroughholders al other charged and authorized to preserue the peace together with their assistants deputies or assignées shall vse in apprehending or committing to prison such as doe attempt to disturbe or breake the peace within their iurisdictions or being commanded wil refuse to put in sufficient sureties for the keeping of
the same peace 32 As in the causes aforesaid force may be lawfully vsed to the persons of men so in some other cases forces may be vsed forcible entries may be lawfully made into the lands and tenements of others Where the house of a man may be broken by force and where not As for Treason or Felony or suspition of Felony one may by force breake open a house if the dores be shut to apprehend the Felon 13. E. 4. 9. For as a Felon is an enemy to the Common-wealth so is it for the benefit of the Commonwealth to apprehend him And the King as head of the Cōmonwealth hath interest in felony to punish it and so a house doth not defend an entry to pursue and arrest one that hath committed felony or is suspected therof As if one hath wounded a man 7. E. 3. 16. whereby he is in perill of death and the offendor doth flie into a house the Constable or those that do pursue him may breake open the house to apprehend him if the dores be shut And in like sort if a fray be made or a quarrell be moued in a house whereof the dores be shut whereby the peace is broken or like to be broken the Shirife a Iustice of peace or a Constable may by force breake open the dore of the house to appease that quarrell or to take surety of the offendors to kéepe the peace And if a man be outlawed of Treason or Felony or in a personall action whereby a Capias vtlagatum is directed to the Shirife to apprehend and take him the Shirife may breake open the dores of the house if they be shut apprehend the same Outlaw and commit him to prison And if it be found by an inquisition before a Iustice of peace that one hath entred into another mans house by force or doth detaine it by force after peaceable entry made he may breake open the house by force to reseise the same land and to put the party so put out in possession againe and so may the Shirife doe hauing the Iustices warrant If a man be indited of Trespas and a Capias pro fine is awarded to the Shirife to take him 27. Ass p. 35 the Shirife may breake open the house to take him if the dores be shut And in all cases where the king is party the Shirife may breake the house of the party offēding Co. li. 5. 91. 13. Ed. 4. 9. or the house where he is to apprehend him or otherwise to execute the Kings proces if the dores be not open or that he cannot otherwise enter for where the King hath interest the writ or action is in the nature of a writ of Non omittas propter aliquam libertatem But this is to be obserued that alwaies before the Shirife or other Officer doth breake open the house or dores of any man Fitz. Execution 252. he must signifie the cause of his comming and desire that the dore may be opened vnto him for if there be no default in the owner the law doth condemne the breaking of a house which was prouided for the dwelling and safetie of men And therefore in any of the cases aforesaid if the Shirife doe breake open the house where some of the dores of the same be open whereby he may enter or that he may open the dore by the key or without breaking he is a Trespassor and is chargeable therefore to the owner of the house in an action of Trespas Sta. 3. E. 1. 17 13. Ed. 1. 38. If one man doe distraine another mans cattell and after doe put them into a Castle Fortresse or other strong hold house or place and then the owner of the cattell doth sue a Repleuin directed to the Shirife to make deliuery to him of the same cattell then if the same Castle Fortresse House or Hold be not opened to the Shirife vpon his solemne request when he commeth to make deliuerance of the cattell according to the purport of his writ he may take the force and power of his County and breake downe the same castle fortresse or house c. and make deliuerance of the same cattell for it would tend to the dishonor of the King his Crowne that the Shirife hauing the kings writ should be resisted with force by any of his owne subiects to execute the same and to make deliuerance of the cattell When any house is recouered by one man against another in any reall action Co. lib. 5. 91 or by an Erectione firmae the Shirife hauing the K. writ of Habere facias seisinam or possessionē may breake open the same house if the dores be shut to deliuer seisin or possession to the demaundant or plaintife for after iudgement the house in right by the censure of the law is none of the tenants or defendants But it is not lawfull for the Shirife at the suit of any common person to breake the house of the defendant in the same suit to execute proces though he doe make request and be denied it for thereupon might ensue great inconuenience 18. E. 4. 4. that vpon colour of any fained suit a man should haue his house being his castle of defence broken by day or by night by any Vndershirife or Baylife being many times of small abilitie And therfore if in that case the Shirife breake any mans house to make execution of any proces at the suit of a common person he is a trespassor to the owner of the same house who may haue an action of Trespas against him therefore as against any other person and shall recouer his dammages But notwithstanding the execution which the said Shirife shall then and there make is good And yet the house of a man is a castle and place of priuiledge but for himselfe his wife Co. li. 5. 93 seruants and ordinarie resiants and for his owne goods for it will not protect any other man which will flie into his house or the goods of any other person which shal be brought into his house to preuent lawfull execution and to escape the ordinary proces of the law And therefore in any of those cases if the Shirife hauing proces to doe execution vpon the body or goods of a man do make request to haue the dore opened or to haue the body of the party flying thither or the goods of another brought thither to be deliuered vnto him and it be denied him or that it be not done the Shirife may breake the house and execute the proces 33 As force is to be vsed lawfully where it is for the benefit of the king or to auaile the Commonwealth so euery man being of himselfe a little world his family a small Commonwealth he the head thereof may in diuers cases defend the same Commonwealth by force Cok. lib. 5. 91. 26. Ass p. 23 32. Fitz. Cor. 303. 305. 22. Assise p. 55. St. 24. H. 8. 5
21. H. 7. 39. As In what cases any pâ—rson may deâ—end himselfe and his by force if theeues or robbers do come to a mans house to rob or murther him he may defend his house by force and if he or his seruants do kill any of them they shall receiue no hurt thereby And if a man being in his house doe heare that another will come to his house to beat him he may lawfully assemble his neighbors and friends to assist and aid him in the defence of his person for his house is his castle and place of protection defence where he must dwell But if a man be threatened â—hat if he come to such a Market or Fayre or to such a place that then he shall be beaten in this case he may not assemble his neighbours and friends to go thither in safegard of his person for there is no necessitie that he should go thither seeing it would rather be a meane to seeke a quarrell then to eschew it but in that case he may take his remedy by surety of peace 16. Ed. 4. 17. 9. E. 4. 28. 19. H. 6. 31. 6. H. 7. 1. And if there be an atteÌ„pt made to maihem wound or beat a man his wife father mother or any of his children within age or to disseise him of his land or to dispossesse him of his goods or to disturbe him of his high way or to turne an ancient watercourse from his mill he may lawfully vse force to resist it 34 As the law hath prouided by the before rehearsed statute of 15. R. 2. St. 15. R. 2. 2. that wheÌ„ any forcible entry shal be made into any benefices or offices of the church a Iustice of peace shall take the power of the county and commit the offendors to the gaole So hath it further deuised that if there be debate betwéene two persons for one church and one of them doth enter into the church with a great power of lay men and holdeth out the other by force and armes then he which is holden out The writ of Vi laica remouenda to remoue force shall haue a writ of Vi laica remouenda directed to the Shirife commaunding him that he shal remoue the power which is within the church and the shirife shal be further commaunded that if he doe find any that doe resist he shall take with him the power of the county and attach the bodies of all the resisters and commit them to prison so that he may haue their bodies before the King at a certaine day to answer for their contempt Fitz. Na. B. 55. But by this writ the Shirife ought not to remoue the Incumbent who is in possession of the church be he in possession by right or wrong but only to remoue the force and to suffer the Incumbent to inioy his possession for if he do remoue the Incumbent the same Incumbent shall haue a writ to the Shirife to restore him to it againe Where force shal be remoued for the K. incumbent where not 35 If the King do bring a Quare impedit against the disturber and the Incumbent and the Kings title is found for him Br. force 20 whereupon his clarke is instituted by writ and after the first Incumbent doth enter by force great number of people and doth take the profits the Kings Incumbent shall not haue the Kings writ to the Shirife to remoue the force for that when the iudgemeÌ„t giuen by the court is executed the court hath no more power to deale in that cause But if the defendant had disturbed the Bishop to admit the Kings Incumbent then he should haue had such a writ ⧠Forgerie 1 HAuing vndertaken to write of the great and generall maladies of the Realme and the chiefe impediments of the iustice and peace of the kingdome I shall not farre digresse from my theame by treating of Forgerie Periury Maintenance Deceit Extortion and Oppression wherein though a man be not assaulted by the rapier and dagger pike-staffe or bilbow-blade as he is in a fray forcible entrie or riot yet a forged déed that conueyeth his land from him a false othe which depriueth him of his lease or vnlawfull mantenance that wresteth his credit or goods from him do longer disturbe the peace of his mind stick in his stomacke and infixeth a déeper and more durable impression of sorrow into his heart than a boxe on the eare a dust in the necke or a blow with a cudgell giuen on the sodaine will doe For the griefe of these later stripes is short and doe weare out of mans mind by little and little as his choller ceaseth and his hot bloud cooleth but the discontent and the wants which he receiueth of the former blowes doe continue with him and yéeld him most dislike when he is most patient and best aduised And therefore the wisedome of this Realme hath from age to age taken great care by lawes and statutes to represse them and to inflict vpon the offendors in euerie of them penalties correspondent to their deserts Our lawes doe chastise those that breake the peace by frayes assaults batteries riots or routs with imprisonment of their bodies vntill their hot blouds be cooled and their distemperat humors be qualified but they doe impose sharper and more durable punishments vpon such as doe forge déeds commit or procure periurie Forgerie periurie maintenance do ten 5 to the breach of the peace or bee maintainers of other mens suits or quarels accounting these last offences to tend more and for a longer time to the breach or blemish of the peace or hinderance of the iustice of the Realme than the former doe As hee that committeth forgerie in some cases shall bée set vpon the pillorie loose his eares haue his nostrels slit and pay to the partie grieued his double costs and dammages And in some other cases shall be hanged as a felon He that committeth periurie shall in some cases be one yeare imprisoned be set vpon the pillorie and neuer after be allowed as a witnesse And hee that maintaineth other mens suites shall in some cases be thrée yeres imprisoned and further punished at the kings pleasure And in some other cases sustaine other disgraces And therefore the preamble of the statute of anno 1. St. 1. H. 5. 3. H. 5. doth truely informe vs that forged déeds do trouble and change the lands of good people intending to be in peace And the statute of anno 32. St. 32. H. 8. 9 H. 8. doth teach vs that the suborning of witnesse for to maintain any matter or cause is to the disturbaÌ„ce or hinderance of iustice The enormity of Forgerie 2 The forging of false sealed Déeds Euidences or Writings or of Court Rols or of the will of any person or of any Obligation Bill obligatorie Release or other discharge or the pronouncing publishing or giuing in euidence of the same wherby any person shal be molested troubled charged
thing and things in all points as other Iustices of Assise in their circuits or Iustices of peace in the Counties by vertue of this Act be limited and appointed to do and execute for the punishment and correction of like offendors as beforesaid is limited Sauing to the partie grieued by such deceit such remedie by way of action The remedie of the partie grieued or otherwise of for the same money goods cattels iewels or other things so obtained as he might haue had if this Act had neuer bin made Any thing in this Act c. notwithstanding 26 Forgerie of writings hath béene alwayes so hatefull in this realme that our law-makers haue pursued the practisers therof with sharpe and bitter punishment though in some cases the same was not put in vse to molest or euict any man of his land lease annuitie debt account action suit or other demaund nor to get into his hands any others goods cattels or iewels but only to escape the ordinance and censure of the law As by a statute made anno 5. Eliz. it is established St. 5. El. 7. That no person retained in husbandry or in certain inferior arts or faculties in the said statute mentioned shal depart out of one citie towne or parish into another nor out of the Lathe Rape Wapentake or Hundred nor out of the County or Shire where he last serued to serue in another Citie Towne Forging of a testimoniall c. vnlesse he haue a Testimoniall of the said Citie or town corporat from whence he departed or of the Constable or other officer c. And if any such person shall be taken with any counterfeit or forged testimoniall then he shal be whipped as a vagabond ⧠Periurie Subornation of witnesses Truth tried by the othes of men 1 THe Law of the Realme desirous to trie out truth in all causes called in question before her to the end she might procéed in iudgement and execute iustice accordingly hath in all ages prooued it to bee the best meanes to search out this truth by the othes of honest lawful and indifferent persons intending that the man who doth professe God to bee his Creator Redéemer and Sanctifier and hopeth to be saued by his blood when hee doth come in the presence of that God and his people and doth aduisely sweare that he will declare the trueth according to his knowledge in that matter in question as God shall help him which is to say as he will expect the blessing of God in this life and eternall saluation in the life to come is void of all partialitie and priuat affection in all respects to be credited and will tell the whole truth and nothing but the truth And therefore an othe is aptly termed Sacramentum a holy band or sacred tie or godly vow The credit of an othe some do call it firmamētum veritatis the foundation ground of truth and some other vinculum pacis a meane of the knot or lincke of peace And if it be taken and found by a whole Iurie consisting vpon twelue persons or aboue it is called veredictum viz. a presentment of truth And others doe hold it a ceremonie instituted by God wherein himselfe is a partie and therefore he will see it verified or sharply punished Wée know that the proofe of most of our acts déeds and writings doe depend vpon the othes of others and whatsoeuer men do for their owne particular account most certaine is altogether in most cases vncertaine vnlesse it may be iustified by the othes of others As if one doe commit murder rape burglarie robberie or other offence whatsoeuer and it be denied and cannot be prooued by the othe of some other the offendor shall escape vnpunished for it And likewise if a man do buy land of another if the feoffor doe make him a déed of feoffement thereof do seale and deliuer it and giue him possession and after will denie it vnlesse it can be prooued by the othe of some other the feoffée shall loose his land and money And so it is of leases annuities releases acquitances obligations bargaines contracts couenants promises offences entries disseisins and other matters in fait if they be denied trauersed and called in question the proof and validitie of them doth depend wholly vpon the othes and testimonie of others And there is no case so plaine which commeth in question betweene partie and partie but one of the parties to the sute may pleade such a plea as shall come to be tried by the othes of others 2 Therefore as the Lawe doth reuerently respect the othes of men What sorts of persons are to be deposed taketh her intelligence of matters in fait from them doth cleaue leane vnto them and giueth such credite and approbation vnto them that shée doth found and build her iudgements in most cases of greatest importance vpon them So shée retaineth a vigilant and carefull eye that those othes be taken by men of sinceritie of life and maturitie of iudgement persons not stained with Periurie or other gréeuous or foule offences men indifferently affected and such as will in swearing respect the trueth of their knowledge and not the face of the person for if shée espie any of those defects in him she doth either wholly reiect his othe or else shée giueth little or no credite vnto it and further inflicteth condigne punishment vpon him according to his desert Mag. Char. 9. H. 3. 29. 3 And because the King himselfe at his Coronation is sworne that iustice shall be solde deferred or denied to no man nor that any man shall be condemned but by lawfull triall and euery of his Iudges be sworne that hée shall doe equall Lawe and execution of iustice to all the Kings Subiects Sta. 18. Ed. 3 rich and poore without hauing regard to any person All the parties to the execution of iustice sworne Therefore the law hath deuised that those Iudges before whome any cause is called in question and is brought to an issue shall be informed of the trueth of that issue by the othes and verdict of twelue Iurors who are impannelled returned and sworne to trie that issue to the end the same Iudges may ground their iudgement thereupon and so doe equall iustice to the parties according to their oathes and also that the saide Iurors shall be ascertained of the veritie of the fact by the Othes of witnesses or other euidences that they may giue their verdict thereupon according to their Othes And séeing those Iurors being the greatest number of persons that be vsually sworne for the furtherance and execution of iustice be returned by the Shiriffe of the Countie where the cause dependeth in question his vndershirife or the Bailife of some Libertie or for some default in them by the Coroners Therefore the Lawe hath further ordained that the saide Shiriffe Vndershiriffe or c. shall be indifferent persons of themselues and also deale vprightly
for commencing a wrong full suit for the law doth intend those suites to be pursued for vexation trouble and likewise in some other cases the def is amerced for the wrongfull detaining of that which is not his owne and for inforcing the plaintife by suit in law to séeke recouer his owne But as in all cases the vnlawfull maintainor of suits is in fault so is he in euery such case punishable For though the case of the plaintife or def which he vndertaketh to maintaine be iust and lawfull in him who prosecuteth or defendeth the suit whose the cause is yet in the maintainor it is vnlawfull for it is not his owne suit neither is it pursued or defended for the recouery or protection of that which he pretendeth to be due to himself and so in a sort he maketh complaint where he hath no wrong or maketh defence where none séeke to hurt him whereby opposing himselfe against others who do not contend with him he laboureth to disturbe the ordinary course of iustice and therewith to blemish the peace of the Realme for as it appeareth partly by the statute of Anno 1. Ed. 3. Sta. 1. E. 3. 14 and specially by the preamble of the statute of Anno 32. H. 8. St. 32. H. 8. 9 Nothing conserueth the people in more peace good concord then the due administration of iustice and the indifferent triall of titles and issues according to the Lawes of this Realme which being hindered letted by Maintenance Embracery Champertie Subornation of witnesses sinister labour and buying of titles there will of necessitie insue thereof great periurie vnquietnesse oppressions troubles wrongs and disheritances 2 And because this Maintenance is as an euill Trée hauing growne out of it many corrupt branches therefore the wisdome of the Realme hath frō time to time prouided seuerall statutes as it were sharpe hatchets to loppe or shred those boughes when they did spring and shoot out As King Ed. 3. Maintenance by men of authority perceiuing that his Counsellors Magistrates and Officers in his house certaine great men of the Realme by sending of Letters Messengers giuing of Liueries by other means did sollicite matters and maintaine quarrels and tooke parts in the Countrey St. 1. E. 3. 14 20. Ed. 3. 3. by a statute made Anno 1. of his raigne and another Anno 20. of his raigne did ordaine That common right should be done to all persons as well poore as rich and that none of his said Officers nor any Noblemen nor any other great or small should take vpon him to maintaine quarrels or to take parts to the let or disturbance of the common law Nor that any should take in hand or meddle with quarrels or questions but their owne And because there was no speciall punishment ordained by the said statute of Anno 1. Ed. 3. for those who should transgresse that Law therfore King R. 2. by a statute made in the first yeare of his raigne established St. 1. R. 2. 4. That if the kings Counsellors or great Officers should take vpon them to sustaine any quarrell by Maintenance in the Countrey or elsewhere he so offending should indure that paine which should be inflicted by the King himselfe by the aduice of the Lords of his Realme and other inferior officers and seruants of the Kings in the Exchequer and other Courts and his meniall seruants shall loose their offices and seruices and be imprisoned be ransomed at the kings pleasure euery of them according to his degrée estate and desert and all other persons of the Realme of what estate soeuer they be shal be imprisoned and ransomed as the other aforesaid St. 33. Ed. 1. 3 The statute intituled Definitio de conspiratoribus made Anno 33. E. 1. Maintenance by cōbination doth decypher another sort of Maintainors which there be called conspirators in this sort St. 1. R. 2. 7. viz. Conspirators be they that bind themselues by oath couenant or other alliance that euery of them shall helpe and sustaine the other falsely maliciously to indite or falsely to moue or maintaine pleas and also such as cause children within age to appeale men of felony whereby they are imprisoned sore grieued and such as retaine mē in the country with liueries or fées to maintaine their malicious enterprises and this extendeth aswell to the takers as to the giuers and stewards and bailifes of great lords Maintenance by noblemens officers which by their seigniorie office or power vndertake to vphold or maintaine quarrels pleas or debates that concerne other parties then such as touch the estate of their lords or themselues 4 There is also another kind of Maintenance which is called Champerty Maintenance by champerty and the offendors therin be called Champertors whom the foresaid statute of Anno 33. St. 33. Ed. 1. E. 1. doth define in this maner Who be champertors viz. Champertors be they that moue pleas and suits or cause to be moued either by their owne procurement or by others sue them at their proper costs for to haue part of the land in variance or part of the gaines which Champertors were accounted great maintainors of suits and professed enemies to peace whereupon it was ordained by the statute of West 1. St. 3. E. 1. 25. That no Officer of the Kings by themselues nor by other shall maintaine pleas suits or matters hanging in the Kings Court for Lands Tenements or other things for to haue part or profit thereof by couenant made betwéene them and he that doth shall be punished at the kings pleasure and after by the statute of Westm 2. St. 13. E. 1. 48 the same was expressed more at large by the which it was enacted That the Chauncellor Treasurer Iustices nor none of the Kings Councell no Clarke of the Chauncerie nor of the Exchequer nor of any Iustice or other Officer nor none of the Kings house Clarke nor Lay shall receiue any Church land nor tenement by gift in fée nor to farme nor for purchase nor otherwise so long as the thing is in plea in the Kings Court or before any of his Officers nor shall take reward therefore and hee that doth contrary to this Act eyther himselfe or by any other or make any bargaine shall bee punished at the Kings pleasure as well he that doth purchase as he that doth giue And because other Officers were not bound by the foresaid Statutes as well as the Kings and to the intent some certaine and more sharpe penaltie might bee imposed vpon the transgressor of the said statutes then before time had béene prouided Therefore by a statute made Anno 28. E. 1. St. 28. Ed. 1. 11. intituled Articuli super Chartas it was ordained That no Officer nor any other for to obtaine part of the thing in plea shall maintaine any matter that is in suit Nor none vpon such couenant shall giue vp his
of the stat of 18. El. 14 Maintenance Champertie buying of titles Embracery haue bin accounted so offensiue professed enemies to the iustice peace of the realm that though by the stat of an 18. El. it is ordained Stat. 18. El. 5 That euery informer vpon any other penall stat shal exhibit his suit in proper person pursue the same onely by himselfe or by his Atturney in court and that none shal be admitted to pursue against any person vpon any penall stat but by way of information or originall writ and not otherwise nor shall haue any deputy at all And that vpon euerie such information which shal be exhibited a speciall note shall be made of the very day moneth yere of the exhibiting therof into any office or to any officer which lawfully may receiue the same without any maner of antedate to be made thereof And that vpon euery such proces shal be indorced aswel the parties name that pursueth the same proces as also the stat vpon which the information in that behalfe made is grounded and that no Informer or plaintife shall compound or agrée with any person that shall offend or shal be surmised to offend against any penal statute for such offence but after answer made in court vnto the information or suit in that behalfe exhibited or prosecuted nor after answer but by the order or consent of the court in which the same information or suit shal be depending Yet in the said stat of 18. El. there is a prouiso That it shal be lawfull for any person or persons grieued by means of any maintenāce chāpertie buying of titles or other embracery to pursue vpō any stat prouided against maintenance champerty buying of titles or embracery as he or they might haue done before the making of the said act Which prouiso was made to the end that all persons grieued by reasons of any maintenance champertie buying of titles or embracery should be left at libertie to pursue chasten the offendors therin by all such means as former laws haue authorised thē not be restrained by any of the ordinances or articles before rehearsed for that the said offēces were by the makers of the said stat adiudged to be greater impedimēts obstacles to the execution of iustice than other penal stat were 15 As the policie of the realme hath deuised the foresaid popular actions and suits to enable euery person that will Assurances to haue mainte void in diuers cases to pursue prosecute maintainors champertors buyers of pretenced rights c. to the intent the sooner to root out extirpat those offendors who indeuor to wrest the execution of lawes out of their due course to subuert iustice thereby to hinder the peace of the realme so hath it in some cases gone further ordained that some assurances made for maintenance shal be presently void as it appeareth by the stat of an 8. St. 8. H. 6. 9 H. 6. wherby it was enacted Lands gotten by force assured to haue maintenance That if any person after his entry into lands or tenements holden with force do make a feoffement or other discontinuance to any Lord or other person to haue maintenance or to toll defraud the possessor of his recouerie in any wise If alter in an Assise or other action thereof to be takē or pursued before the Iust of Assise or other the kings Iustices whatsoeuer they be by due inquiry therof to be taken the same feoffements and discontinuances may be duly proued to be made for maintenance as is aforesaid that then such feoffements or other discontinuances so as before made shall be void St. 4. H. 4. 8. holdē for none And by the stat made an 4. H. 4. it was established That if any man great or small of what estate or condition they be Lands forcibly gotten by maintenance make any forcible entry in his own right or to his own vse or in anothers right to his vse by the way of maintenāce therof is attained at the suit of the party grieued he shal be one yere imprisoned pay to the partie grieued his double dammages And also he shall answer to the partie grieued damages for his goods cattels if vpon the said forcible disseisin he tooke away any 16 As by the before mentioned stat maintenance champerty What maintenance is punishable and what iustifiable embracerie buying of titles be in generall termes deciphered together with their seuerall penalties so haue the learned Iudges Sages of the law expounded the particular branches of euery of those stat as they grew in question were prosecuted in suit before them also resolued what maintenance is punishable and what iustifiable who may pursue an action writ bill or information c. of maintenance champerty c. against whom the same is to be brought for what offēce or cause the same is maintenable what pleas are to be pleaded to the writ or in bar of the said actions writs informations c. what iudgemēt shall ensue thereupon As euerie champertie is an vnlawful maintenāce prohibited by the foresaid stat of West 1. West 2. 9. H. 6. 64. St. 28. E. 1. 11. and punishable according to the before rehearsed stat of An. 28. E. 1. and euerie chāpertie is a maintenance the partie grieued may haue aswel a writ of Maintenance as of Champertie for by that meanes the champertor hauing bargained to haue part of the land or thing in question doth ofttimes moue further the suit suborneth witnesses corrupteth the Iurie and so subuerteth iustice but there must be a suit depending before it can be adiudged maintenance in any sort for if one man wil giue money to another to beginne and prosecute a suit against a third person 3. H. 6. 55. 8. H. 5. 8. 10. Ed. 4. 19. 30. Ed. 3. 3. this is no maintenance for that this mony was giuen when there was no suit depending and if there be a writ brought and neuer returned it is no maintenance No maintenance in a Iuror for giuing his verdict 17 If there be a suit depending betwéene two and they do ioyne an issue 18. E. 4. 2. 28. H. 6. 6. which is tried by xij men found for the plaintife in this case the defendant cannot haue an action of maintenance against the said Iurors or any of them for this verdit giuē for that they gaue their verdit according to their euidence and their knowledge of the truth of the matter and besides they did not thrust thēselues into that cause but were compelled to appeare by an ordinarie course of law being impanelled returned by the Sherife or some other lawfull officer Maintenance by a Iuror suing for iudgement but if after the verdit giuen any of the Iurie wil solicit or labor to the Iudge or Iudges of the court where the said suit
law doth allow him to doe in respect the sooner to deliuer his seruant from suit and trouble that hée may not loose the benefit of his seruice for the longer he doth lacke his mans seruice the greater is the Masters losse And if the seruant be arrested in any priuiledged place the Master may maintaine him and spend his owne money to deliuer him in respect that otherwise he should loose his seruice for by that meanes he doth maintaine him in his owne behalfe and to auoid his owne hinderance But if the seruant be impleaded in a reall action wherein he may appeare and answer by Attourney and that his owne presence is not requisit 21. H. 7. 40. then the master may not maintaine him therein for that the Master shall receiue no preiudice if the land in question shall be recouered from his seruant And in like sort the seruant may maintaine the Master How the seruant may maintaine his Master in any suit commenced by or against his said Master in all lawfull manner As he may trauaile in furtherance of his Masters suit 19. H. 6. 31. 19. Ed. 4. 3. he may retaine his counsell with his Masters money and shew his counsell or the Iurie vpon the tryall of his Masters cause in question his Masters euidence for he is bound to doe his Master his diligent seruice and that which his Master commaundeth him to do touching his suit is his Masters seruice But that seruant which may iustifie to maintaine his Master in such sort as is aforesaid must be a seruant who is retained with his Master for a yeare 39. H. 6. 5. or some long time and to do all such seruices as he shal be imployed in by his said Master for if he be a seruant onely hired for a day two or thrée or to ride but some one iourney or to do but some one speciall seruice then if he do maintaine his Master or his Master maintaine him in any sort as aforesaid it is vnlawfull maintenance in him But if in either of the cases aforesaid the Master for his seruant or the seruant for his Master shall giue or promise money or other reward to any of the Iurie to giue his verdict or do threaten any of them to be killed beaten maimed dispossessed of their farmes 12. E. 4. 14. 19. H. 6. 31. or do giue his owne money to the Sherife to arrest the other partie to that suit then it is punishable by action of Maintenance in him that shal so offend ⧠Deceit Couin Collusion Fraud 1 DEceit Couin Collusion and Fraud bée great offences to the Commonweale and speciall impediments of the iustice and peace of the Realm wherof there be so many and of so generall sorts and kinds as there be wicked deuises in the hearts of men and lewd persons to put them in practise And it were a worke almost as infinite to diuulge the particulars and to reduce into writing all the Deceits The multitude and enormitie of Deceits and Frauds Couins Collusions and Frauds which in time haue béene inuented and effected as it were to poise the weight of the sands of the sea or to decipher the number of the starres of the element for by how many meanes a man may trust by so many and more hee may bee deceiued And therefore I will vndertake to treat of no more than our common and statute lawes haue detected and accused to bée deceits frauds c. and amongst others but of those which the makers expositors and Sages of our lawes haue noted to be chiefely offensiue and most opposite to the due execution of iustice vpon which this peace whereof I doe write doth chiefely depend For the wisedome of this Realme first in the making of our lawes and after in expounding them haue bent their chiefe care to crush and beat downe Deceit and Fraud plainely séeing that the greatest part of the crimes which bée committed in this kingdome from the highest treason to the smallest trespasse haue some intermixture with them And that if they with their dependants could bée fully extirpat both iustice and peace would more brightly flourish And notwithstanding they doe not begin their quarrels with rapier and dagger sword and buckler as some other of the offences before mentioned do yet is there grafted in the root of them as much gawle and venim and more durable and bitter extremities do spring from them than â—oe ensue by the Canon shot the light horsemans staffe or the footmans bill For though some part of euerie kings raign hath had a calme and repose from war and hostilitie yet neuer any age or yeare was cléerely fréed of falshoods corruptions deceits and frauds 2 The wisedome of the Realme perceiuing how necessarie a thing iustice is and how opposite and repugnant vnto it deceits and frauds bee doth therefore specially prouide to make choyce of such men of all sorts The reward for paines and punishments for deceit of officers towards the law to execute the same iustice as she is persuaded by their learning and experience can by their vertue integritie will performe to euerie person his due and tread beat downe fraud whose pains she doth requite with reuerend respect liberal rewards titles of credit large priuiledges But if she do find any of the said officers whom she putteth in trust to deceiue her expectation and to practise falshood or guile then she doth as sharply punish them as she did before munificently wage them As appeareth by the stat of An. 8. St. 8. R. 2. 4. R. 2. wherby it was ordained A Iudge A Clerke That if any Iudge or Clerke do make any false entring of a plea rase any rol or change any verdict whereby any person receiueth disheritance he be thereof conuict before the K. and his Counsell he shal be punished by fine ransome at the K. pleasure and satisfie the partie And for the recouerie of the inheritance the partie shall sue by writ according to the law And for the auoyding of corruption which may happen in officers in those courts places wherein there is requisit to be had the true administration of iustice to the intent that worthy persons should bée preferred to the places of iustice none other should attaine the same for fée or reward by a stat made An. 5. Stat. 5. 6. E. 6. 16. 6. E. 6. it was enacted No office of iustice shal be sold or bought That if any person bargaine or sell any office or deputation of office or take any mony fée reward or other profit directly or indirectly or take any promise agréement couenant bond or assurance to receiue or haue any mony reward c. for any office or the deputatioÌ„ of any office or any part of any of theÌ„ or to the intent that any person shold enioy any office or the deputation of any of theÌ„ or any part or parcel of any
be adiudged to the pillory the third time he shal be imprisoned make fine the fourth time he shall forsweare the towne And in this manner shal it be done of all that offeÌ„d in like case as of cookes that séeth flesh or fish any waies that is not holesome for mans body or after that they haue kept it so long that it looseth the naturall holesomenesse then séeth it againe and sell it And in like sort St. 39. El. 10 by one other statute made An. 39. El. it was enacted That if any alien or stranger born or any denizen or naturall born subiect of this realme shal bring into any hauen port créeke or town of this realme any salt fish or salt herrings which shal not be good swéet seasonable méet for maÌ„s meat shal offer the same to be sold and shall be warned by any officer of such Port c. where the same shal be offered to be sold that the same be not seasonable nor méet for mans meat Then if he or they shall after that offer any of the said vnseasonable fish to be sold to any person within this Realme or being an alien borne and no denizen shall not depart with the same from the said Hauen Port or Towne so soone as conueniencie will serue Then all and euery person owners therof shall forfeit to the Queen all the said vnseasonable fish vnméet for mans meat as is aforesaid And by a statute made Anno 4. Ed. 3. it was established St. 4. E. 3. 12 That assay shall be made of wines twice euery yeare once at Easter and another time at Michaelmas and more oft if néed be by the lords of the Townes and their Baylifes and also by the Mayors and Baylifes of the same townes and all wines that be found corrupt shal be powred out and the vessels broken ⧠Extortion Exaction 1 EXtortion is a wrong done by an Officer What is Extortion as Ordinarie Archdeacon Officiall Maior Bailife Shirife Escheator Coroner Vndershirife Auditor Receiuer Clerke or other Officer or by any other by colour of an office in taking of an excessiue reward or fée and more then the law doth allow him for execution of his said office which offence in some degrées is worse then the priuy picking of a mans purse in secret and the transgressor in a sort may be compared to the Fréebooter which with drawne sword and with menacing words assaulteth the trauailer by the way who casteth down his purse to him for feare of further hurt And so is the poore sutor many times inforced to doe to the Officer when of necessitie he must vse his helpe It is a thing most odious and offensiue to the iustice and peace of the Realme and to all the members thereof that those men who be specially made choice of and principally selected to serue their prince and countrey and to further the execution of iustice in their offices and places and be sufficiently rewarded with conuenient stipends for their paines therein should in contempt of the law assesse their owne fées in a sort put their hands in other mens purses and there take what they will and thereby doe wrong vnder the colour and shadow of iustice Exaction is a wrong done by an officer What is Exaction or by one pretending to haue authoritie in demaunding and taking reward or fée for that matter cause or thing which the law doth allow no fée at all And as our common statute lawes haue declared which offences or acts they doe condemne and adiudge as Extortions and Exactions so haue they prescribed in most cases seuerall penalties to be inflicted vpon the seuerall transgressors therein leauing the residue to be punished at the kings pleasure or by the discretion of such of his Iudges Iustices or others by his commission authorized before whom the offendors shall be thereof conuicted And further our said statute lawes haue set downe for the most part what fées or duties the sutor ought to pay to the officer the officer is to demaund of him to the intent that the one shall not be ignorant what to offer nor the other what to require and to the end that the Law hauing written it in a sort in the officers forehead what his duty is he may blush when he looketh in the sutors face and demaundeth more 2 I will begin with an Exaction that no former generation did tast of heare of or feare but it hath sprung vp of later yeares bin greatly exclaimed of and condemned in this our present age which is taking of money or some other reward for a Report or Certificat wherein the offendor most commonly doth a double iniury and to two seuerall persons viz. first to him whose mony fee or other reward he taketh for the fauourable making of that report in his behalfe whereas the law doth allow him none for reporting but otherwise bountifully rewardeth him for that and all such other paines and next and chiefely to him in preiudice of whom or whose case he maketh that report He doth not now indifferently respect the cause in question but bendeth his eye vpoÌ„ the reward which he hath receiued and deuiseth to accomplish the request of the one and yet to yéeld to the other not the effect but some colour of iustice The King at his coronation doth promise to all his subiects Mag. Chart. St. 9. H. 3. 29 Quod nulli vendemus nulli negabimus aut differemus iusticiam whereupon the whole realme did take it vnkindly at their hands who being the kings Substitutes in place of iustice and receiuing but a small particle of his authoritie would doe then all the said offences at once and sell denie and deferre iustice to some of the kings subiects certifie that for good which was bad or that for iustice which was méere iniurie Or if they did make report and certificat of that which was iust and true would sell it and take money or other reward for it which the king himselfe vpon his oath refuseth to doe And therefore because all exâ—â—tions extortions and corruptions be odious as well in this as in all other well gouerned Commonweales and to the intent to preuent the like enormities in this and other ages by a statute made Anno 1. Iacob it was enacted St. 1. Iac. 10 That no person to whom any order or cause shal be committed Exaction by taking or reward for a report or referred by any of the Kings Iudges or Courts at Westminster or any other Court directly or indirectly or by any act shift colour or deuice haue take or receiue any money fée reward couenant obligation promise agréement or any other thing for his report or certificat by writing or otherwise vpon paine of forfeiture of one hundred pounds for euery such report or certificat and to be depriued of his office and place in the same Court The one moitie to be to the king his
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
raigne that now is which is not or hath not bin the castle or dwelling house of any nobleman or gentleman nor the chiefe mansion house of any manor is and shal be adiudged a house of husbandry for euer and all acres spoken of in this statute shal be adiudged acres according to the Statute or Ordinance de terris mensurandis Which is an acre of land And euery person persons bodies politique and corporat which shall offend in not building erecting repairing continuing or maintaining of houses of husbandry according to the purport true meaning of the said statute The forf for not building a house of husbandry shall for euery house that shal not be erected builded repaired continued or maintained in necessary reparations tenantable according to the intent of the same act by the space of one yéere forf x. l. and so yéerely x. l. vntill the same shal be sufficiētly erected continued repaired c. and for euery acre of land meddow or pasture which shal not be laid vnto or let with such houses of husbandry when the same shal be demised shal forf for euery yéere that he or they shal so offend the summe of x. s̄ as long as often as such acre shall not in those respects be ordered vsed according to the intent of this act of which forf the K. shal haue one part the poore of the parish where the offence was committed the second part and he that will sue in any of the K. courts of record at Westminster the third and if none will sue thē the K. shal haue also that third part But no offendor shall be impeached or sued by vertue of this act Within what time the suit shal be presēted except the suit be brought and commenced by the party for the king himselfe within 2. yeares of the same offence done but where the suit shal be prosecuted for the K. only c. then within 3. yeeres after the offence done Oppression by decay of Tillage 34 By the stat of an 39. El. 2. it was ordained St. 39. El. 2 That all lands and grounds which now are vsed in tillage or for tillage hauing bin tillable lands fields or grounds such as next before the first day of this parliament haue béene by the space of 12. yeres together at the least vsed in tillage or for tillage according to the nature of the soile course of husbandry vsed in that part of the countrey shall not be cōuerted to any shéepe pasture or to the grazing or fatting of cattel by the occupiers or possessors thereof but shall according to the nature of that soile course of husbandry vsed in the part of the country continue to be vsed in tillage and for tillage for corne graine not for wood And if any person body politique or corporat shal offend against the premisses thē the offēdor shal forf for euery acre not restored or not cōtinued as is aforesaid x. s̄ for euery yere that he or they so offēd to be diuided into 3. parts then to be distributed as is aforesaid so that the suit be cōmenced or prosecuted wtin the time or times before mentioned I haue for some special causes herein set down but only the offēces penalties mentioned in the two last specified stat of an 39. El. 1. 2. Wherefore the two last stat bee not set down at large omitting purposely the exceptions reseruations prouisoes and some other matters in the same 35 As Menaces Assaults Batteries Imprisonments Maihems Riots Routs vnlawful assemblies Forgeries Periuries Maintenances Deceits Extortions Oppressions all other the crimes before mentioned haue from one age to another bin noted accused as maladies in the common wealth and adiudged condemned as professed enemies to the peace of the realme and by seuerall lawes statutes diuers penalties haue bin imposed vpō the transgressors thereof in a measure certaine within some limits So the prouidence of our forefathers sounding déeper into the corruptiō of mans nature foreséeing that sometime his cholerike passions turbulent spirit sometime the gall and bitternes of his heart sometime his couetous insatiable affections eftsoons his secret desires deuices of reuenge doe carry him headlong into exorbitant vnusuall designments practises be they neuer so contrary to the Lawes of God of Nature Reason in seueral degrées further thē our said lawmakers did then either fore-thinke feare or by particular words restraine knowing also that the subtiltie of the Serpent and of men of the serpents nature doth excéed the other beasts of the field haue therefore erected established the most honorable Court of Starre-chamber All the former offences punishable in the Star-chāber to the intent that the wisedome of that Court authorized partly by the K. prerogatiue partly by seuerall lawes statutes of the realme might search forth the serpents subtilty and vtterly crush dash the same and séeing the dead letter of each law doth ordaine in most cases but one kind of punishment for one sort of offence the circumspection of the makers of that law were they neuer so wise or experiēced could not foresée all the circumstances which in time might ensue in the maner of transgressing of that law Therfore the lords others of that high Court being now the speaking law representing the persons of the dead lawmakers carefull expositors of their meanings by their graue foresights déep considerations do looke into those offēces which be cōmitted contrary to the same lawes do search into euery quarter corner circumstance therof do pierce through the very bowels intrailes of them and the transgressors thereof as what persons of what estate St. 13. H. 4. 7 St. 2. H. 5. 8 degrée ability function or calling cōmitted the offēce to whom in what manner in what place at what time before whom with what number for what cause the same was done then do inflict punishmēt vpon the transgressors thereof first according to the lawes statutes therfore prouided then do qualifie or aggrauate the same according to the circumstances As it is a Riot punishable by the stat of An. 13. H. 4. Ann. 2. H. 5. if thrée persons or more do assemble together and beat or mayme a man pull downe his house pale or ditch wrongfully c. so if a great number of meane persons of small ability or credit shall assault a péere of the realme or a Knight or Esquire that is Custōs Rotulorum of the shire or a Iustice of peace and Quorum in his country shall strip and whip him shall pull downe his house to the ground shall set him in the stockes or on the pillory shall beat his wife and children kill his cattell and spoyle his corne before his face and shall vse other acts and wordes of infamie and disgrace vnto him and only for
St. 16. R. 2. 5 shall incurre the paines and penalties containeâ—â—n the Statute of Premunire made Anno 16. Ri. 2. 17 Because diuerse persons euill affected had practised contrarie to the meaning of the foresaide Statute of 13. Elizab. 2. by other meanes than by Bulles or Instruments written or printed to withdrawe seuerall of the Quéenes subiects from their naturall obedience to her Maiestie to obey the vsurped authoritie of the Bishop of Rome and in respect of the same to perswade great numbers to withdrawe their due obedience to her Maiesties Lawes established for the due seruice of God Perswading to the Romish religion For reformation whereof St. â— 3. Eli. 1 and to declare the true meaning of the same Lawe by a Statute made Anno 23. Elizab. 1. it was declared and enacted That all persons whatsoeuer which haue or shall haue or shall pretend to haue power or shall by any wayes or meanes put in practise to absolue perswade or withdrawe any of the Quéenes subiects or any within her Realmes or Dominions from their naturall obedience to her Maiestie or to withrawe them for that intent from the Religion now by her Highnesse authoritie established within her Highnesse Dominions to the Romish Religion or mooue them or any of them to promise any obedience to anie pretended authoritie of the Sea of Rome or of anie other Prince State or Potentate to be had or vsed within her Dominions or shall doe anie ouert Act to that intent or purpose and euerie of them shall be to all intents adiudged to be traitours and being thereof lawfully conuicted shall haue iudgement suffer and forfeit as in case of high Treason And if any person shall by any meanes be willingly absolued or withdrawen as aforesaide or willingly be reconciled Being perswaded to the Romish Religion or shall promise anie obedience to any such pretended authoritie Prince State or Potentate as is aforesaide Then euerie such person and persons their Procurers and councellors thereunto being thereof lawfully conuicted shall be taken tried and iudged and shall suffer and forfeit as in cases of high Treason And for the further confirmation and explanation of the saide Statute of Anno 23. Elizab. 1. and for a more augmentation thereof in some sort there was an other Statute made Anno 3. St. 3. Iac. 4 Iacob 4. whereby it was enacted That if any person or persons shall either vpon the Seas or beyond the Seas or in any other place within the Dominions of the King his heires or successours put in practise to absolue perswade or withdrawe any of the Subiects of the King his heires Practising to absolue or reconcile to the Romish Religion or successours of this Realme of England from their naturall obedience to his Maiestie his heires or successours Or to reconcile them to the Pope or Sea of Rome or to mooue them or any of them to promise obedience to anie pretended Authoritie of the Sea of Rome or to any other Prince State or Potentate Then euery such person and persons their Procurors Aidors Councellors and Maintainors knowing the same shall be to all intents adiudged Traitours and being conuicted shall haue iudgement suffer and forfeit as in case of high Treason And if any such person as is aforesaide either vpon the Seas or beyond the Seas or in anie other place within the Dominions of the King his heires or successours shall be willingly absolued or withdrawen as aforesaide or willingly reconciled or shall promise obedience to anie such pretended authoritie Prince Absolued or reconciled State or Potentate as is aforesaide Euery such person and persons their Procurers Councellours Aidors and Maintainours knowing the same shall be to all intents adiudged Traitours and being conuict shall haue iudgement suffer and forfeit as in case of high Treason But this Clause touching Reconciliation shall not extend to anie person which shall bée reconciled to the Pope or Sea of Rome that shall returne into this Realme and within sixe daies after his returne A reconciled person submitteth before the Bishoppe of the Diocesse or two Iustices of the Peace of the Countie where hée shall arriue shall submit himselfe to the King and his lawes and take the othe of Supremacie ordained Anno 1. Eliz. 1. and the othe set downe in this Act. 18 Whereas diuerse persons called or professed Iesuites Seminarie priests and other priests made beyond the Sea according to the order of the Romish Church haue come and béene sent into this Realme of purpose not onely to withdraw the Quéenes subiects from their due obedienes to her Maiestie but also to mooue sedition rebellion and open hostilitie within her Highnesse Dominions For reformation whereof by a Statute made Anno 27. Elizab. it was enacted That it shall not be lawfull to Iesuites and Priests shall not come into this Realme or for any Iesuite Seminarie Priest or other such Priest Deacon or other Religious or Ecclesiasticall person whatsoeuer St. 27. 2 E. 2 being borne within this Realme or any of the Dominions thereof and héeretofore since 24. Iun. Anno 1. reginae Eliza. made ordained or professed or héereafter to be made ordained or professed by any authoritie or iurisdiction deriued challenged or pretended from the Sea of Rome by or of what name title or degrée soeuer the same shall be called or knowen to come into be or remaine in any part of this Realme or any Dominions thereof other than in such cases and vpon such speciall occasions onely and for such time onely as is expressed in this Act viz. if he be so weake and infirme of body that hée cannot passe out of this Realme And if hée doe then euery such offence shall be adiudged high Treason And euery person so offending shall for his offence be adiudged a Traitor and shall suffer loose and forfeit as in case of high Treason 19 By a Statute made Anno 27. Elizab. it was established That if any the Quéenes subiects not being a Iesuite Seminarie Priest St. 27. El. 2. or other Priest Deacon or Religious or Ecclesiasticall person as is before mentined now being or which héereafter shall be of or brought vp in any Colledge of Iesuites Seminarie persons shall retire into England or Seminaries already erected or ordained or héereafter to be erected or ordained in any parts beyond the Seas or out of this realme in any forraine parts shall not within sixe moneths next after Proclamation in that behalfe to be made within the citie of London vnder the great Seale of England returne into this Realme and thereupon within two dayes next after such returne before the Bishop of the Diocesse or two Iustices of peace of the County where hée shall arriue submit himselfe to her Maiestie and her Lawes and take the Othe set foorth Anno 1. Elizab. 1. Then euery such person which shall otherwise returne come into or be in this Realme or any other the Dominions thereof for
such offence of returning or being in this realme or c. without submission as is aforesaid shall be adiudged a Traitor and suffer and loose and forfeit as in case of high Treason 20 Hauing treated of Treasons generally and first shewed which be high Treasons and which petit Treasons by the common lawe and which be made treasons by Statutes It resteth that I declare what is Misprision of treason how many sortes thereof there be and what is the penaltie or punishment of the offendors therein What misprision of treason is Misprision of treason or felony is most properly when any person doth vnderstand or know that another person hath committed treason or felony and he will not disclose it to the King or his Councell or to some Magistrate that it may be repressed and punished but doth conceale it Bracton writeth Bracton de Corona cap. 3 That if any man doth know another to be guilty of a treason or to be vehemently suspected thereof he ought presently and without any delay come to the King if he can or send to him if he be not able to come or to some other néere about the King and to declare euery thing in order he ought not tarrie in one place two daies or two nights before he doth sée the Kings person neither must he attend any other busines be it of neuer so great importance for hée is scarcely allowed to looke backe because if he doe delay and conceale the matter for a time he shall be accounted a manifest deceiuer of the King and as consenting and agreeing to the offence whether the partie which is accused be his familiar friend or a stranger and if he would after accuse the offendor he shall not be heard vnlesse he can prooue that he was hindered vpon good cause And to the intent it might be certainely knowen what misprision of treason is the Statutes of 5. 6. Ed. 6. St. 5. E. 6. 11 1. 2. P. M. 10. and 1. 2. Ph. M. haue defined it in this manner viz. concealement or kéeping secret of any high treason shal be déemed and taken only misprision of treason the offendors therein to forfeit and suffer as in cases of misprision of treason as héeretofore hath béene vsed The forfeture in misprision And in all cases of misprision of treason the offendor shall forfeit to the King his goodes and his lands during this life 2. R. 3. 10. and he shall be imprisoned during his life And euery treason or felony doth include Misprision so that where any person hath committed treason or felony the King if hée will may cause the offendor to be indicted and arraigned but of misprision But some other offences partly by the common Lawe and partly by Statute be misprision of treason besides concealement or kéeping secret of treason which be héereafter expressed 21 By reason that diuers euill disposed persons as well without this Realme as within were boldened to counterfait and forge such kinde of golde and siluer and vtter the same in the Realme as is not the proper coine of this Realme nor currant in paiment in this Realme because before there was no condigne punishment prouided for such offences For the redresse whereof St. 14. El. 3 by a Statute made Anno 14. Elizab. 3. it was enacted That if any person or persons shall héereafter falsely forge Counterfaiting of money not currant or counterfait any such coine of golde or siluer as is not the proper coine of this Realme nor permitted to be currant within this Realme Then euery such offence shall be déemed and adiudged Misprision of high Treason And the offendors therein their procurors aiders and abettors being conuicted according to the Lawes of this Realme of such offences shall be imprisoned and forfeit such Landes goodes and Chattells as in cases of Misprision of treason for concealement of treason S. Br. 6. St. 23. Eli. 1 22 By the Statute made Anno 23. Elizab. 1. Aiding of perswaders to Romish religion it is enacted and declared That all and euerie person and persons that shall wittingly bée Aidors or Maintainors of such persons as shall offend in perswading or reconciling to the Romish Religion or in being reconciled thereunto or in any of the same offences knowing the same or which shall conceale any of the saide offences and shall not within twentie daies at the furthest after such persons knowledge of such offence disclose the same to some Iustice of Peace or other higher officer shall be taken tried and iudged and shall suffer and forfeit as offendors in misprision of Treason S. Br. 17. Concealing of reconciliation offered 23 By the Statute made Anno 13. Elizab. 2. it was ordained St. 13. Eli. 2. That if any person or persons to whom anie absolution reconciliation bull writing or instrument obtained from the Bishop of Rome or any of his successors or from any other claiming authoritie from or by them shall be offered mooued or perswaded to be vsed put in vre or executed shall conceale the same offer motion or perswasion and not disclose and signifie the same by writing or otherwise within sixe wéekes then next following to some of the Quéenes priuie Councell or to the president or vicepresident established in the North or the Marches of Wales for the time being Then the same person or persons so concealing shall incurre the penaltie and forfeit of misprision of high Treason But no person or persons shall be troubled in or for misprision of high Treason for any offence made Treason by this Act other than such as by this Act before are declared to be in case of misprision of high Treason S. Br. 16. Recording an indictment not found 24 If a Iustice of Peace doe inroll a bill of indictment not found by the Countrey amongst other indictments which be found 2. R. 3. 10. This is a great misprision and fineable and he shall loose his office Drawing a sword to strike a Iustice 25 If one draw his sword to strike a Iustice assigned Mi. 22. Ed. 3 13. sitting in place of Iudgement this is misprision of Treason and the offender being indicted and found guiltie thereof shall haue iudgement to forfeit his landes and chattels to haue his right hand cut off to be perpetually imprisoned for that the Iustice assigned by the Kings Commission to execute iustice sitteth in the place and stead of the King and so the offender opposeth himselfe against the King and the office of iustice Striking a Iuror in a Iustices presence 26 If in the presence of a Iustice assigned M. 19. Ed. 3. Fitz. Iudgement 174. one doe strike a Iurour that is returned vpon an Enquest this is misprision of Treason and the offender being indicted thereof shall haue iudgement to loose his lands and goodes to the King to haue his right hand stricken off and to be committed to perpetuall prison
Striking in Westminster Hall 27 And the same Law is Fitz. Cor. 280. M. 2. 3. P. M. Dy. 188. if one strike another in Westminster Hall during the time that the Kings Courts be sitting there and be indicted thereof this is misprision of Treason and an indignitie offered to the Magistrates and place of iustice Therefore in this case the offender shall haue iudgement to haue his right hand cut off to loose his lands and goods and to be perpetually imprisoned Reâ—scuing a prisoner arrested by a Iudge 28 If one of the Kings Iustices assigned M. 22. Ed. 3. 13. doe arrest any person which hath made a fray before him and a stranger will rescue the prisoner whereby he doth escape this is misprision of Treason and in this case as well the prisoner as he that made the rescous shall forfeit to the King his landes and goods and be imprisoned during their liues Because the attachment of such a Iustice is the Kings owne attachment in the construction of Lawe 29 Because striking in the Kings pallace or where he shall remaine in person is a kinde of disgrace offered vnto or contempt had of the maiestie of the king who is the head of the common wealth and the chiefe preseruer of peace therein and therefore it is to be accounted a great Misprision and worthy of seuere punishment wherefore for the preuention thereof Shedding of blood within the kings palace by a Statute made Anno 33. St. 33. H. 8. 12. H. 8. 12. it was established That if any person or persons shall malitiously strike any other person whereby blood shall be shedde in any of the Kings houses or Palaces or any other house wherein the king his heires or successors shall bee at that time abiding in his royall person viz. within any edifices courts places gardens orchards or houses within the Porters ward of any of the houses aboue rehearsed or within any Gardens priuie walkes orchards tilt-yards wood-yards tennice-plaies cocke-fights bowling alleyes néere adioyning to the said houses and béeing part of the same or within two hundred foot of the Standard of any outward gate or gates of any of the said houses commonly vsed for passage from any of the houses c. and shal be thereof indicted arraigned and attainted according to the forme of the said Statute he so offending shall haue his right hand cut off bee imprisoned during his life and make fine to the King at his pleasure But this Act and the paines and forfeitures before rehearsed shall not extend to any Noble man nor other person that shall strike his seruant within the said Palaces or Houses or the limits of the same with his hand or fist or any small staffe or sticke for correction for any offence committed Nor to any of the Kings officers that in execution of his office shall strike any person with his hand fist or small staffe sticke or tipstaffe Nor to any other person that in doing seruice at any triumph or any other time of seruice by the Kings or any of his Councel or other his head officers commandement shal for the execution of his said seruice strike any person with his hand fist smal staffe or stick or any tipstaffe within the same palace house c. although by reason of the same stroke or strokes there happen to bée any blood-shed of such person as shal be so stricken except the person so stricken die of the same stroke within one yeare next after And so it is to be noted by the foresaid Statute of 33. H. 8. and the foure cases next precedent that striking in the Kings Palace or House where himselfe doth make his abode is not so penall as striking or drawing a weapon to strike is where he is but represented by others in time and place of Iustice for the law doth inflict a more seuere punishment vpon him who striketh or draweth his weapon to strike in place time of execution of Iustice than it doth to him who offereth the like violence in the house and at the time where the kings owne person is remaining In which case the offendor receiueth no punishment at all for striking or drawing of his weapons to strike vnlesse blood be shed thereby Which lawes doe procéed of the great care and reuerend respect that is had of Iustice and of peace ensuing thereof 30 For as much as some doubts and questions were mooued that certaine kinds of Treasons Misprisions and concealements of Treasons committed out of this Realme could not by the common lawes of this Realme be enquired of heard and determined within this Realme of England for a plaine declaration whereof St. 35. H. 8. 2 26. H. 8. 13. 5. Ed. 6. 11. by a Statute made Anno 35. H. 8. it was enacted That all manner of offences béeing alreadie made or declared or hereafter to bee made or declared to be Treasons Misprisions of Treasons or concealements of Treasons and done perpetrated or committed by any person or persons out of this Realme of England shal be enquired of heard and determined before the Kings Iustices of his Bench for pleas to be holden before himselfe Trial of treasons committed out of the Realme by good and lawfull men of the same shire where the said Bench shall sit and bée kept or else before such Commissioners and in such shire of the Realme as shall be assigned by the Kings Commission and by good and lawfull men of the same Shire in like manner and forme to all intents as if such treasons c. had béene committed in the same shire where they shall be so inquired of heard and determined as is aforesaid And if any Péere of this Realme shall be indicted of any such Treasons c. then he shall haue his triall by his Péeres c. Which foresaid Statute of Anno 35. H. 8. remaineth in force notwithstanding the Statute of Anno 1. 2. P. M. 10. By which it is ordered h. 13. El. Dyer 298. That all Trials had awarded or made for any Treason shall bee had and vsed onely according to the course of the common lawes of this Realme and not otherwise Outlawrie of offendors in Treason beeing beyond Sea 31 By a branch of a Statute made Anno 26. H. 8. it was ordained That all Proces of Outlawrie to be made within this Realme against any offendors in Treason being resiant or inhabiting out of this Realme or beyond the Sea at the time of the Outlawrie pronounced shal be as good and effectuall in the law to all intents as if any such offendors had béene resiant within this Realme at the time of such Proces awarded Outlawrie pronounced And after by a Statute made Anno 5. E. 6. it was conditioned and prouided St. 5. E. 6. 11. That if the partie so outlawed shall within one yeare after the said Outlawrie pronounced or iudgement giuen thereupon yéeld himselfe to the chiefe Iustice
An. 38. H. 8. Bro. Treason 2. for ioyning the Armes of England before the Conquest and the Armes since to his owne Armes for some other offences Quaere within which words of the first rehearsed Statute of 25. E. 3. or of any other Statute at the time of his arraignment in force that offence was comprised and made Treason S. Triall by Peeres 2. ⧠Homicide HOmicide is a word compound and is deriued of these two words Bâ—acton de corona viz. hominis cedium and the most apt and proper definition thereof is when one man or moe men doe kill another man for if a man be killed by a dogge a beast or other thing it is not properly termed homicide The said homicide may be committed by seuerall meanes viz. by iustice Homicide by iustice as when a Iudge doth command or pronounce his sentence that a man attainted by course of law shal be put to death By necessitie Homicide by necessitie as when one man killeth an other with griefe and sorrowe of minde thereby to deliuer himselfe or that which is his or some other persons or things which he is bound to defend from further perill which he or they cannot otherwise escape By mischance By mischance as when a man casteth a stone at a bird or a beast or is in lopping or felling of a trée and another man passing by is slaine therewith without the foreknowledge and against the will of him who did the déede By will By will as when one man hath a will to fight with another and then doth kill him or some other that is in his company and doth take his part in that combate But of this Homicide by will there bée two sortes whereof the one is called Murder and that is By murder when one man vpon malice prepenced and forethought doth feloniously kill an other And the other is called Manslaughter or Chance medley and that is By manslaughter when two men fight together vpon a suddaine heat of blood without any malice precedent and one of them doth kill the other 2 If a man be adiudged by the court to be hanged Homicide by iustice and the Sherife is commanded by the Iudge to doe execution in that manner and he doth it accordingly this is Homicide by iustice But if the Sherife do behead him or cause him to be beheaded or by any other meanes to be put to death than according to the Iudgement M. 35. H. 6. 58. this is no Homicide by iustice but felonie in the Sherife The order of law not obserued in execution of Iustice for that he hath not obserued the order of the Law viz. the iudgement in putting the offendor to death And the same law is if one which is not Sherife or other officer thereunto lawfully deputed will put to death an offendor that is condemned to die vpon his owne authoritie for that is no Homicide by iustice but felonie in him who beeing not the Kings officer thereunto assigned hath killed one of the Kings Subiects without warrant of his law And therefore if the Iudge himselfe who gaue iudgement of death against an offendor shall after put the same offendor to death it is not iustifiable but beeing indited and arraigned thereof he must plead not guiltie And in this case the wife may haue an Appell of the death of her husband so put to death against the said Sherife or other person though the heire cannot haue an Appell of the death of his father so executed because his blood is corrupted by the Attainder 35. H. 6. 57. No man may kill him that is outlawed of felony or attainted in a Praemunire 3 If a man be attainted of felonie by Outlawrie it is Homicide by iustice for the Iudge before whom he is brought to command him to be put to death and for the sherife to sée executioÌ„ done of him according to the iudgement 2. Ass p. 3. 27. Ass p. 4. 35. H. 6. 58. viz. to hang him But it is felonie and not Homicide by iustice for any other man of his owne authoritie to kill him And for as much as it was doubtfull whether by the lawes of this realme there was any punishment for such as kill or slea any person or persons attainted in or vpon any Praemunire Therefore by a Statute made anÌ„ 5. El. 1. it was enacted St. 5. El. 1. That it shall not be lawfull to any person or persons to slea or kil any person or persons in any manner attainted or hereafter to be attainted of in or vpon any Praemunire by pretence reason or authoritie or force of any word or words thing or things contained or specified in any Statute or Law of Prouision and Praemunire or in any of them Any Law Statute Opinion or Exposition to the contrarie notwithstanding So that to kill any person attainted vpon a Praemunire is felonie and not Homicide by iustice Killing a felon that will not be arrested 4 A shirife a bayly 22. Ass p. 45 Fi. Cor. 261 or any other which hath warrant to arrest a man indicted of Felony may well iustifie the killing of him if he wil not suffer himselfe to be arrested but that he doth stand at his defence in such manner that the officer and his assistants cannot arrest him without killing of him And in this case the officer shal be discharged without the kings pardon for this is homicide by iustice done vpon him who refuseth to yéeld vnto and submit himselfe to the iustice of the Law And euery person as well he that hath no warrant as he that hath may apprehend a Felon and if he wil not yeeld to be arrested but stand to his defence or flie the pursuer may kill him without blame the arrest being for Felony and therein he shall commit homicide by iustice And by the statute of Anno 1. Killing of such as be vnlawfully assembled M. it is established That if any persons St. 1. M. 12. aboue the number of two shall vnlawfully assemble together to the intent with force armes to doe practise or put in vre any of the things in the said statute mentioned then it shall be lawfull to euery Iustice of peace and to euery Shirife Mayor Bailife and other head officer of any Citie or Towne corporat or to any other hauing the Kings commission or letters to raise assemble the Kings subiects in maner of warre to be arraied in such great number as he or they shall thinke méet or able to the intent by violence of strength to suppresse and take the said persons so vnlawfully assembled And if the said persons so vnlawfully assembled or any of theÌ„ shall fortune to be slaine maihemed or hurt in or about the repressing or taking of them then euery such Iustice mayor sherife c. and euery other person hauing authoritie as is aforesaid and euery person and
murder in him that slew him although the murderer did not know the party whom hée killed and although the fray was on the sodaine Because the Constable and his assistants came by authoritie warrant and commaund of the Lawe to kéepe the peace and auoide the danger which might ensue by the breach thereof And therefore the Lawe doth adiudge this murder and that the murderer had a prepenced malice in him to oppose himselfe against the Lawe and the iustice of the Realme And if the Shiriffe or any of his Bayliffes or Officers be killed in the execution of the Kings Processe or in doing their office The Shiriffe or his officer is slaine in execution of Processs◠this is murder And it is murder if a watchman be killed in watching and doing of his office for in those cases the Lawe doth construe the offence not onely as done to the person that is slaine but to the office of execution of iustice or the keeping of the peace which the law had imposed vpon him that was slaine and so the offender by killing of this man hath done as much as in him lieth to restraine the execution of iustice or to hinder the preseruation of the peace Murder and manslaughter committed in the death of one man 26 If a man goe with malice prepenced to fight with an other and to kill him and a third person séeing them fighting Plo. Com. 100. goeth on the suddaine without malice to take the part of him that went with his malice and to fight for him and then they two strike and kill the man that was by them assaulted This is wilfull murder in the first man which went with the malice prepenced to kill and but manslaughter and no murder in the other who went to take his friends part and had no malice prepenced to kill As if the master vpon malice prepenced doth lie in the way to assault and kill a man and taketh some of his seruants with him that hee doth not acquaint with this malitious intention and the master doth assault the same person who he did lie in waight for and doth fight with him and the seruants doe take their masters part and also fight with the partie assaulted and they altogether doe kill him This is willfull murder in the master and but manslaughter in the seruants for that in them there was no malice prepenced towardes the partie slaine But if the master had made his seruants priuie to his intention and they had gone with him and killed the other it should haue beene adiudged murder in the seruants also 27 If a man vpon malice prepenced do lie in waight to kill an other man Plo. Com. 101. and doth méet him A man bearing malice to one doth kill an other assaile and fight with him a third man being in the companie of him that is assailed doth fight and defend him In this case if the first man that made the assault doe kill the third man who tooke part and defended the second man that was assailed it is in him wilfull murder though at the first he did beare no malice to him that hee killed neyther knew him But when the first man did beare malice to the second man that hee first assaulted and ment to haue killed him and to haue put his intended malitious purpose in execution against him and slew one other who resisted his purpose the law doth construe it that he caried a malicious and reuenging mind against all those that did resist his wicked purpose And therefore as he slew one in the defence of an other so is his malicious and murdering minde and intention expounded to be transferred from the one to the other and he shal be adiudged a murderer as if he had killed the first man And the same lawe is if one man doe lie in waight in a place to kill an other man and a stranger doth come to the same place and he that doth lie and waite to kill mistaking the man doth kill that straunger thinking he had bin the same person which he did meane to kill This killing shal be adiudged wilfull murder for it is grounded vpon malice prepenced though it were not executed vpon him to whom he did beare the malice And therefore it shal be adiudged the like offence as if hee had slaine the same person that hee meant to haue killed And so it is if a man vpon malice prepenced doe shoote at one man with intent to kill him and his arrow or pellet doth kill an other man to whom he did beare no malice this shal be adiudged murder in him for in his act doing he intended murder and séeing he directed his arrow to kill one man and that slew another the offence shall be accounted in equall degrée as if had killed him whom he meant to haue slaine for the end of the fact shall be iudged by the beginning thereof and the later part shall taste of the first and the first part which was the shooting of the arrow or pellet was grounded vpon malice prepenced and a murdering minde and so the offence in Lawe shall be iudged wilfull murder Plow com 474 28 The husband did giue to his wife a rosted apple wherein hée had put poison with intent to poison and kill her and the wife not knowing the intent of her husband nor that the apple was poisoned deliuered the same apple in the presence of her husband to a yoong childe of their owne to eate who did eate of it and died thereof within few daies after Giuing poison to one another taketh it dieth This was adiudged wilfull murder in the husband for that he deliuered the poisoned apple with intent to kill one person and séeing by his act death did ensue although it was to another person than he meant to kill yet it shall be adiudged murder in him for he was the originall founder and only cause of this death and this murder should be vnpunished if he should not be punished therefore for the wife which deliuered the poisoned apple to her owne childe could not be guiltie of any offence for that she was ignorant of the mischiefe pretended But if one doe lay rats-bane or other venomed thing in a house or place with intent to kill rattes mice or other vermine and a man or woman doth eate of it and dieth thereof this is no murder or other felony in him that laied it for that he had no intent to hurt any man or woman M. 2. El. Di. 186 29 An aduouterer and a harlot being by him begotten with childe Two agréeing vppon a murder and one of them doth it did agrée that after the womans deliuery the childe should be killed whereupon the mother after her deliuerie perswaded the Midwife to kill the childe who did it accordingly viz. she cut the throat of it In this case the mother and midwife were adiudged principall murderers and the aduouterer
the Kings Bench for that he did beate a woman great with childe with two children AnÌ„ 3. Ass pl. 2. M. 1. E. 3. 24 so that one of the children died presently and the other was borne baptised and had a name of Baptisme giuen and within two daies after that childe also died by the hurt it receiued by the foresaid beating this was adiudged no felonie for the reasons aforesaide But if a woman being deliuered of a childe doth presently kill it before it be baptized Fit cor 418 M. 2. El. Di. 186. this is felony in her though the childe had no name of Baptisme because the childe was in rerum natura before it was killed and it is knowen by whom and what meanes that childe came to his death 40 If a man doe beate or otherwise hurt another whereby hée dieth In homicide the pâ—rty must die within a yeare and a day it is requisite to make it Homicide Fit cor 303 that the partie doe die within a yeere and a day next after the batterie or hurt done Or else the Lawe will not adiudge it homicide or that the partie stricken did die of that beating or hurt And the same Lawe is if poison be giuen by one man to an other whereby hée dieth the Lawe will not construe it to be murder vnlesse the partie doe die within a yeere and a day next after the poison receiued 41 As a man may commit felonie in killing of an other Homicide by felo de se so he may commit felonie in killing of himselfe and then the Law doth aptly call him felo de se for though Homicide is most fitly and commonly termed where one man doth kill an other yet the same phrase may in good congruitie of speach be well applied to one that killeth himselfe for there is an Agent and a Patient a killer and one slaine and both in one and the selfe same person And though there may be many causes why a man may kill himselfe as there be many and seuerall humours opinions distractions and fantasies in men yet most coÌ„monly he becommeth felo de se Bracton de coro ca. 31. feloniously killeth himselfe who being guilty of any grieuous crime is apprehended for the same or vehemently suspected or accused thereof or being wearie of his life for extreamitie of paine or pouertie as being not able to kill his enemie or to be reuenged of him according to his desire doth therefore kill himselfe c. which felon of himselfe shall forfeit to the King his goodes chattells reall and personall Plow com 260. 261. Fitz. Cor. 362. 301. 426. and debts but not his lands for the Lawe doth so greatly fauour inheritance that it shall not escheate without attainder indéede Neither shall his wife forfeit her dower nor his blood shall be corrupt And the reason why the King shall haue the goodes chattels and debts of felo de se forfeited vnto him The cause of the forfeiture of felo de se is for that the King hath lost a subiect and the same subiect hath broken the Kings peace in killing of himselfe and giuen an euill example to his people and hath fled from and escaped the triall of the Lawe and he himselfe was the cause why he could not be tried by the Lawe Co. l. 5. 110. But the goodes of felo de se be not forfeited vntill his death be presented and found of Record And therefore those goods cannot be claimed by prescription And if felo de se be cast into the Sea or a great Riuer or so secretly buried that the Coroner cannot haue the sight of his body and by thgt meanes can not enquire thereof Then all such Iustices of Peace and Oier and Determiner which haue authoritie to enquire of felonies shall enquire thereof An Enfant or Lunatike killeth himselfe 42 If an Enfant furious or frantike man doe drowne Bracton de coron ca 31 21. H. 7. 31 Fitz. cor 244. Co. li. 1. 99. Plow com 260. or otherwise kill himselfe hée shall not forfeit his goodes c. because he wanteth reason and iudgement And if a man that is lunatike doe strike himselfe with his knife or other weapon and after doth recouer and notwithstanding dieth of the same stroke that himselfe did giue within one yéere and a day after the stroke giuen yet he shall not be adiudged felo de se nor forfeit his goods or any thing therefore for the Lawe doth respect what he was at the beginning when hee gaue himselfe the stroke which was the cause of his death and not what he was when he died For if a man that is frantike from day to day doe kill himselfe he shall not forfeit his goods But the Lawe is otherwise if a man doe kill himselfe who is frantike but at certaine times Fitz. coron 324. viz. per lucida interualla Killing of him selfe in the stead of an other 43 If a man doe strike an other to the ground and then draweth his knife to kill him and the defendant lying vpon the ground draweth his knife to defend himselfe H. 44. Ed. 3 44. and the assailant is so hastie to kill the defendant that hee falleth vpon the defendants knife and so is slaine In this case the assailant is felo de se for he had an intention to kill though not himselfe yet the defendant And so as the death intended by him was by his hast transferred from the defendant to himselfe so is the name of a murderer transfered to felo de se 44 If a lease of lands be made to the husband Plow com 258. and the wife for the terme of certaine yeares and the husband goeth into the water and drowneth himselfe in this case Forfeiture of lease made to felo de se and his wife after the death of the husband shal be found by the Coroner vpon the sight of the dead body and the title of this land shal be likewise found by an inquisition taken before commissioners authorised thereunto the foresaid lease and whole terme of yeeres shal be forfeited to the King and the wife shall haue no part thereof for this forfeiture shall haue relation to the husbands going into the water whereupon the drowning did ensue at the which goeing into the water hée had the whole interest of the lease in him so to dispose that hée might haue aliened the whole interest thereof from his wife and this going into the water wherupon this drowning and death did ensue was a forfeiture or alienation in law of the terme and was as much in construction of the law as if hée had then aliened the whole terme to the King And the finding of the death of this man before the Coroner vpon the sight of the bodie and the finding of the title of this lease before Commissioners bée equiuolent to a iudgement that might haue béene giuen against him in his
felons and shall incurre the paine of felony And the Iudges of the said Courts of the one Bench or of the other haue power to heare and determine such defaults before them and thereof to make due punishment as is aforesaid 2. R. 3. 10 Br. Cor. 173 If a Iudge doe file an indictment with other indictments The penalties of Iudges or officers abusing Records which was not found by the Iury that did find other indictments Or if he do imbesill or rase a Record or such like this is but misprision in the Iudge but this is felony in another person who is no Iudge and the Iudge shal be indited and arraigned thereof shall make a fine loose his office for this misprision And if the steward of a Liberty doth arraigne a man by the colour of Infangthéefe and doth adiudge him to death the liberty shall be seised therefore but no punishment shal be inflicted vpon the steward for he did it by colour of the liberty and so no felony and if a man do sue another by an action of debt to the exigent wherupon he is outlawed another maÌ„ doth rase the originall the 3. capias the exigent and maketh part in London and the residue in Middlesex and doth write in them W. B. for I.B. this is felony by the foresaid statute of 8. H. 6. which is if a Record in either of the Benches or in the Exchequer bee imbesiled carried away withdrawne or auoided wherby a iudgement shal be reuersed that then it shal be inquired by clerkes of those Courts and others it shal be adiudged by the Iustices of the same court and it shall be ordained as felonie and this rasure doth auoid the whole Record so that it cannot be redressed by error it is a greater offence then if part onely had bin auoided 2. R. 3. 10 and all which be agreeing thereunto be felons 17 By a stat made an 5. H. 4. St. 5. H. 4. 5. it was enacted That the offendors which do cut the tongues or put out the eies Cutting of tongues putting out of eies of any of the K. liege people and that duely proued and found that such déed was done of malice pretenced shall incurre the paine of felony 18 By the stat made anno 5. H. 4. it was ordained St. 5. H. 4. 4. That none shall vse to multiply gold or siluer nor practise the art of Multiplication Multiplication and if any do he shall incurre the paine of felony in this case 19 By the Statute made Anno 34. Ed. 3. and 37. Ed. 3. St. 34. E. 3.22 St. 37. E. 3.19 it was enacted Withholding of a hauke That whosoeuer findeâ—h a falkon Tarcelet Laner Laneret or other Hawke which the owner thereof hath lost shall immediately bring the same to the Sherife of the Countie whâ—ch shall make proclamation in all the good Townes of the Countie that he hâ—th such a hawke in his custodie and if the owner which lost the hawke or any of his seruants come to challenge it and proouâ—th that it is his Maisters hée shall pay for the costs and haue it And if none doe come within foure moneths to challenge it thâ—n the Sherife shall haue the hawke agréeing with him that tooke it vp if hée be a simple man and if hée be a Gentleman and of estate to haue a hawke then the Sherife shall deliuer him the hawke taking reasonable allowance for the kéeping thereof And whosoeuer taketh a hawke and the same concealeth from the owner or from his falkoners or takâ—th away a hawke from the owner or stealeth a hawke and carrieth it away not obseruing the foresaid ordinances and is thereof attainted shall be vsed as a felon which hath stolen a horse or other thing CoÌ„gregatioÌ„s by masons 20 By a Statute made Anno 3. H. 6. St. 3. H. 6. â— it was ordained That Congregations and Confederacies shall not be holden by Masons in their generall assemblies And if any such bee made they that cause such Chapters and Congregations to be assembled and holden if they be thereof conuict shall be adiudged for felons And all other Masons that come to such Chapters and Congregations shall be punished by imprisonment of their bodies and make fine and ransome at the Kings will A Souldier departing from his captaine 21 By the statutes of Anno 18. H. 6. Anno 2. E. 6. 2. and Anno 4. 5. P. M. St. 1â— H. 6. 19 St. 2 E. 6. 2. St 4 5. P. M. 3. it was enacted That if any Souldier man of Armes or Archer which hath taken parcel of his wages of his captaine hath mustred and is entred of record the Kings souldier doth not passe the sea or go with his captaine except notorious sicknesse or impediment by Gods visitation doth stay him which he shal immediatly certifie his captaine and repay his money or els being in the enemies countrey in garrison or elsewhere in the K. seruice where he is appointed to serue doth depart without licence of the kings Lieutenant Deputy high Admirall vice-Admiral Warden Captaine or in their absence of their Deputies then he shall be taken iudged and executed as a Felon without hauing any aduantage of Clergie or Sanctuarie And Iustices of Peace shall haue authoritie to enquire thereof and to heare and determine the same as they do other felonies committed in that Shire where such Souldior shall be taken And by a braunch of a statute wade anÌ„ 5. Eli. it was ordained That the foresaid statute of 18. H. 6. in all pains St. 5. El. 5. 2. lâ—e 25. forfeitures and other things did doth and hereafter shall extend as well to all and euery mariner and gunner A Mariner or Gunner hauing taken or which hereafter shall take prest or wages to serue the king his heires or successors to all intents and purposes as the same did or doth to any souldier S. the statutes of 7. H. 7. 1. 3. H. 8. 5. made to the like effect St. 7. H. 7. 1. 3. H. 8. 5 Co. li. 6. 27. Et Quaere whether the first stat which were made for couenant souldiors or the later stat which were ordained for pressed Souldiors bee or ought to be put in execution wherein haue respect to the meaning of the makers of the foresaid stat of an 5. El. 5. 22 By the statute of Anno 27. El. 2. St. 27. El. 2. it was ordained Receiuing or relieuing of Iesuits That euery person which shall wittingly willingly receiue relieue comfort aid or maintain any Iesuit Seminary priest or other priest made out of the realm of England Deacon or religious or Ecclesiasticall person being at liberty or out of hold knowing him to be a Iesuit Seminary priest or other such priest Deacon or religious or ecclesiasticall person shal for such offeÌ„ce be adiudged a felon without benefit of clergy suffer death
Sorcery whereby any person shall be killed destroyed wasted consumed pyned or lamed in his or her body Lex Athelstani 6. or any part thereof then euery such offendor or offendors their aydors abbettors and counsellors being of any the said offences duely and lawfully conuicted and attainted shall suffer paines of death as a felon or felons and shall loose the priuiledge and benefite of Clergie and Sanctuarie If any person or persons shall take vpon him or them by witchcraft Finding of treasure inchantment charme or sorcerie to tell or declare in what place any treasure of gold or siluer should or might be found or had in the earth or other secret places Or where goods or things lost or stollen should be found or become Declaring where goods lost should be found Prouoking to loue Destroying of any person or cattell Or to the intent to prouoke any person to vnlawfull loue Or whereby any cattell or goods of any person shal be destroyed wasted or impaired or to hurt or destroy any person in his or her bodie although the same be not effected and done Then all and euery such person and persons so offending and beeing thereof lawfully conuicted shall for the said offence suffer imprisonment by the space of one whole yeare without baile or mainprise and once in euery quarter of the said yeare shall in some market towne vpon the market day or at such time as any Faire shal be kept there stand openly vpon the Pillorie by the space of sixe houres and there shall openly confesse his or her error or offence If any person or persons being once conuicted of the same offences as is aforesaid doe eftsoones perpetrate and commit the like offence then euery such offendor being of any the said offences the second time lawfully and duly conuicted and attainted as is aforesaid shall suffer paines of death as a felon or felons and shall loose the benefite and priuiledge of Clergie and Sanctuarie sauing to the wife of such person as shall offend in any thing contrarie to this Act her title of Dower and also to the heire and successor of euery such person his and their title of inheritance succession and other rights as though no such attainder of the auncestor or predecessor had béene made Prouided alwayes That if the offendor in any the cases aforesaid shall happen to bee a Péere of the Realme then his triall therein to bee had by his Péeres as it is vsed in cases of Felony or Treason and not otherwise Hunting with Visors 30 By a Statute made Anno 1. H. 7. St. 1. H. 7. 7 it was ordained That at euery such time as any information shall be made of any vnlawfull hunting by night or with painted faces in Forrest Parke or Warren to any of the Kings Councell or to any Iustice of Peace of the Countie where such hunting shall be of any person suspected thereof It shall bee lawfull to any of the same Councell or Iustice of Peace to whom such information shall bee made to make a Warrant to the Shirife or to any Constable Baylife or other Officer of the same County to arrest and take the same person to haue him before the maker of the same Warrant or any other of the Kings councell or Iustice of Peace of the same Countie And the Counsellor or Iustice before whom such person shall bee brought shall haue power to examine him of the said hunting and of the doers thereof and if he conceale the offence or any offendor it is felony and if he confesse the truth and all that he shall be examined of and knoweth in that behalfe then the offence of hunting by him done shall be against the King but trespas fineable to be assessed at the next generall Sessions by the Iustices there And if any Rescous Rescous or disobedience be made to any person hauing authority to doe execution or iustice by any such warrant by any person which should be arrested so that execution of the same warrant be not had then the same rescous and disobedience shal be felony and the same felony shall be enquired of and determined as other felonies béene Twelue or aboue assembled together to change any law 31 By a Statute made Anno 1. Ma. 1. Eliz. it was ordained St. 1. M. 12 St. 1. El. 16 That if any persons to the number of twelue or aboue being assembled together shall intend goe about practise or put in vre with force of armes vnlawfully and of their owne authority to alter or change any lawes made or established for Religion by authoritie of Parliament which stand in force or any other Lawes or Statutes of this Realme or any of them the same number being commaunded or required by the Shirife of the Shire or by any Iustice of Peace of the same Shire or by the Mayor Shirife Iustices of Peace or Baylifes of any Citie Borough or Towne Corporate where any such assemblies shall be vnlawfully had or made by proclamation in the Quéenes name to retire and repaire to their owne houses and habitations or places from whence they came And they or any of them notwithstanding such proclamation shall remaine and make their abode or continue together by the space of one whole houre after such commaundement or request made by proclamation or after that shall willingly in forcible and riotous manner attempt to doe or put in vre any things aboue specified then as well euery such abode or continuing together as euerie such act or offence that after such commaundement or request by proclamation had or made shall bée attempted to bée done practised or put in vre by any persons being of the number aforesaid shall be adiudged Felonie in all and singular those persons that so shall make their abode and continue together or shall attempt or commit any such act And the offendors therein shall be adiudged Felons and shall suffer onely execution of death as in case of Felony If any persons to the sayd number of twelue or aboue shall intend Practising to destroy parks ponds conduits goe about practise or put in vre in manner and forme aforesayd to ouerthrow cut breake cast downe or digge vp the pales hedges ditches or other inclosure of any Parkes or Parke or other ground inclosed or the bankes of any Fish Pond or Poole or any Conduits for water Conduit heads or Conduit pipes hauing course for water to the intent that the same or any of them from henceforth should remaine open not inclosed or voyd Or vnlawfully to haue common or way in the sayd Parkes or Parke or other grounds or ground inclosed or in any of them or to destroy in manner and forme aforesayd the Déere in any Parkes or Parke or any Warreins or Warrein of Conies or any Doue-houses or any Fish in any Fish ponds or Poole or to pull or cut downe any Houses Barnes Mills or Bayes or to burne any stackes of corne or
them or his or their lands tenements goods or chattels from such thefts spoyles and robberies as is aforesaid Or whosoeuer shall giue any such money corne cattel or other consideration called Blacke mayle for such protection as is aforesaid Or shall wilfully and of malice burne or cause to be burned or aid procure or consent to the burning of any barne or stacke of corne or grain within any of the said Counties or places aforesaid shal be of the said seueral offences or any of them indicted lawfully conuicted or shall stand mute or shall challenge peremptorily aboue the number of xx before the Iust of Assises I. of Gaole deliuerie I. of Dier and Terminer or I. of peace within any of the said counties at some of their generall Sessions within some of the said counties to be holden shal be adiudged reputed and taken to be as felons and shall suffer death without any benefit of Clergie Sanctuarie or Abiuration and shall forfeit as in case of felonie St. 1. Ed. 2. 37 By the stat of An. 1. E. 2. it was ordained in this maner viz. Touching prisoners breaking of prison Breaking of prison the K. doth will and command that none which from henceforth doth breake prison shall haue iudgement of life and member for the breaking of prison onely except the cause for which hee was taken and imprisoned do require such iudgement if he should haue been conuicted thereof according to the law and custom of the Realm though in times past it hath beene otherwise vsed ⧠Principall and Accessorie 1 HAuing treated sufficiently of Treasons Homicides and other Felonies and shewed how many of euerie of them there be I am now to write of those that be culpable therein and to declare which be the chiefe and most grieuous offendors in those crimes whoÌ„ the law doth terme adiudge Principals and which be but Abettors Procurers and Receiuers whom the law doth brand mark with the name of Accessories and which of those be Accessories before the offence committed and which after in what cases one of them shal be arrested imprisoned appealed indicted arraigned or attainted before the other and in what not when the acquital of the one shall discharge the other and when not and where the punishment of the one shal be greater than of the other and where not And in this title to begin with the greatest highest offence The law doth hold it a rule infallible 3. H. 7. 10. that in High Treason there is no Accessorie No accessorie in high treasoÌ„ for all the aduisers counsellors persuaders and assistants therein be Principals as much as if they were actors or doers so that whatsoeuer offence doth make a man Accessorie in Felonie the like maketh him Principall in High Treason But in Petit Treason there is oftentimes a Principall and an Accessorie as there is in Homicide Robberie and other Felonies Accessorie before the offence committed 2 There be two sorts of Accessories in Felonie whereof the one is Accessorie before the felonie committed and the other is Accessorie after the offence done As if one hire procure or commaund another to commit a Felonie 10. Ed. 4. 14. but is not present when the other doth it this procurer or commaunder is Accessorie before the offence committed But otherwiâ—e it is if hee bee present at the time of the felonie committed for in that case he is Principal 4. H. 7. 18. 7. H. 4. 27. And in some case one may be appealed as Principall and Accessorie in one Appeale Procurement of felonie 3 If one bée present at the death of a man 4. H. 7. 18. 13. H 7. 10. Plo. Com. 100. and moueth another to strike and kill him by this meanes hée is principall though hée did strike no stroke as well as hée that killed him For the blowes of hâ—m that did strike him bée in construction of law the blowes of him which commaunded him when hée was present for if the commaunder had sayd nothing the man slaine had not béene killed 21. Ed. 4 71. 4 If one be present at the killing of a man CoÌ„ming purposely to a manslaughter and commeth thither for that cause although he at that time doth not moue another to strike or kill him neither doth any thing yet hée shall bee adiudged principall For when diueâ—s doe come to doe an euill act Bro. Cor. 171. Kel fol. 161 Pl. Com. 98 and one alone doth it and the others bée present abetting him or readie to aid him in the fact they bée principals to all intents as fully as hée who did the act for the presence of the other is a terrour to him that was assaulted and the occasion that hée durst not defend himselfe for when one doth see his enemie and diuers of his companions comming to assault him 13. H. 7. 10. and they all doe draw their swords and doe enuiron him and one onely doth strike him so that hée dyeth thereof the others shall be adiudged as great offendors as hee who did strike him for if the others had not béene present peraduenture hée would haue desended himselfe and haue escaped for the number of the others that were present and also readie to strike him was a great feare vnto him and an abatement of his courage and a cause to make him dispaire of his defence and so the occasion of his death And though but one man gaue the blow which was the cause of his death yet the law will adiudge it the stroke of them all giuen by the hands of that one man and to bée in each degrée as penall to thâ—m all as if they all had holden their hands at one time vpon that sword or staffe and giuen him his deadly wound Fitz. Cor. 309. 5 If one béeing present at the killing of a man doth nothing A will to assist a felon but would haue aided his companion if the partie that was slaine had made any resistance Fitz. Cor. 314. 350. 433. 11. H. 4. 13. hée shall thereby bee adiudged principall For all those which come in companie in any place where any assembly is gathered that an euill fact is committed bée it Homicide Robbeâ—â—e or other Trespasse euery of them shall bée adiudged a principall actor though they stand by and doe not hurt As if one come with others to doe a dissâ—â—â—â—â— and a man is killed by another and hee therein did nothing Fitz. Cor. 314. 350. notwithstanding hee shall bee adiudged principall though hée came not to any such purpose because hée came to doe an vnlawfull act 6 If one chaunce to bée present when another is slayne In company but not consenting to a felony or when any other felonie is committed and doth not come in companie with the felons neither is of their confederacie although hée doth not make any resistance or disturbe the felon or leuie Huy and Crye yet he is
Felonie as Rape Robberie c. for in Rape if one do not commit the act Fitz. Cor. 314. 350. but aideth and assisteth his companion hee is principall as well as hee that committeth the fact And the same law is if one doe commit a Robberie and others be in his companie and do come with him for that purpose they bée all principals 13 Accessorie after the offence is he Accessorie after the offence committed who knowing that another hath committed a felonie doth receiue him ayd him or comfort him As if one do receiue a felon before he is attainted of felonie knowing of the felonie which he hath committed 26. Ass p. 47 or doth fauour him or ayd him with money meat drinke or lodging by that meanes he shal be adiudged accessorie What act of the accessorie maketh him a felon what not But this difference is to be taken of aid or counsell for if he aid him by his good word or suit for his deliuerance or do send a letter for his enlargement this doth not make him acessorie to the felonie Receit of a felon attainted in the same Countie 14 If one receiue a felon that is attainted of Felonie by verdict or confession in the same Countie where the receiuer is commorant or dwelling and doth ayd him he is accessorie to the Felonie Fi. Cor. 377 Bracton though he doth not know that the other hath committed Felonie because hee is a Felon by matter of record whereof euerie straunger dwelling or commorant in the same Countie is to take notice And it is Felonie if one be indicted of the receit of another that is Outlawed of Felonie in the same Countie where the receiuer dwelleth for that the offendor is attainted of Felonie in that Countie by matter of record S. Indictments 34. Receit of a felon attainted in another Countie 15 If one be attainted of Felonie by verdict confession Fi. Cor. 377 or outlawry in one Countie and another doth receiue him and aid him in another Countie he is not accessorie to the Felonie vnlesse he doth know of the Felonie because hée cannot take knowledge of an act done in another Countie though it be by matter of record S. Indictments 34. Indictment of an accessorie in one County to an offence done in another 16 Because that Théeues and Robbers that had robbed or stollen in one Countie would conuey their spoile or part thereof so robbed and stollen vnto some of their adherents in another countie where the principall offence was not committed who knowing of such felonie willingly and by couin did receiue the same in which case though the principall felon were attainted in one countie the accessorie escaped by reason that he was accessorie in another Countie and that the Iurors of the same countie by the common law could take no knowledge of the principall felonie ne attainder in the first countie and so such accessories escaped thereof vnpunished For the remedie whereof by a Statute made Anno 2. 3. E. 6. it was ordained St. 2. 3. E. 6. 24. That where any murder or felonie shall be committed in one countie Triall of an accessorie in one County to an offence done in another and another person or moe shall be accessorie to the same in another countie Then an Inditement found or taken against such accessorie and accessories vpon the circumstance of such matter before the Iustices of Peace or other Iustices or commissioners to enquire of felonies in the countie where such offences of accessorie shal be committed shal be as good in the law as if the said principall offence had bin committed within the same coūtie where the same indictment against such accessorie shal be found And the Iustices of Gaole deliuerie or Oyer Terminer or two of them of or in such countie where the offence of any such accessorie shal be committed or done vpon suit to them made shall write to the Custos Rotulorum or Kéepers of the Records where such principall shal be attainted or conuict to certifie them whether such principall be attainted or conuicted or otherwise discharged of such principall felonie who vpon such writing shall make sufficient Certificat in writing vnder their Seale or seales to the said Iustices whether such principall bee attainted conuicted or otherwise discharged or not And after that they doe certifie that such principall is attainted conuicted or otherwise discharged of such offence Then the said Iustices c. shall procéed vpon euery such accessorie in the Countie where he became accessorie in such manner and forme as if both the said principall offence and accessorie had beene committed in the same Countie where the offence of accessorie was committed and euery such accessorie and other offendors aboue expressed shall answer vpon their Arraignments and receiue such Triall Iudgement order and execution and suffer such forfeitures as is vsed in other cases of Felonie 27. Ass p. 69 25. Ed. 3. 39. 9. H. 4. 1. 17 If one receiue goods stollen or any parcell thereof yet hée shall not bée accessorie to the felonie if he do not receiue the Felon himselfe But if he doe receiue the goods stollen Receiuing of of stolne goods and also the Felon he shall be accessorie to the felonie so that the same Felon be before accessorie of the same felonic S. Indict 34. Fitz. Cor. 427. 18 If a Felon doth flie and come to his friends house Receiuing the Felon and his friend doth shut the doore and the countrey which pursueth him doe thinke that the Felon doth continue in the house whereas he escapeth in this case the friend shall bée adiudged accessorie to this felonie for that his friend did ayd and reléeue him and endeuoured to defend him from the iustice of the law S. Escape 2. 26. Ass p. 52 19 And also a man may be accessorie to an accessorie Accessorie to an accessorie as if one doe receiue him who is accessorie to a felonie by this meanes he himselfe shall be accessorie to this accessorie because that first accessorie is a felon 1. H. 7. 6. 20 If one doe rescue him that is arrested conuicted Rescue of a Felon or attainted of felonie hée is a principall Felon and not an Accessorie and the reason is for that this is a new felonie by it selfe though it doth depend vpon the former felonie 21 A woman couert cannot bée accessorie in felonie to her husband A wife no Accessorie to her husband A maried wife a principall Felon for that by the lawes of God shée ought not discouer his counsell But by force of a Statute made Anno 1. Mar. a wife shall be a principall Felon if shee doe send deliuer or conuey any reliefe to her husband which amongst others to the number of twelue or aboue shall bée assembled practise and put in vre any of the offences prohibited by the said stat prouided against Rebellious
ought not to let him goe but the towne where the Constable dwelleth shal be charged with the kéeping of him vntill the next Gaole deliuerie Prisoner by matter of record 24 The law hath two seuerall respects to two sorts of prisoners whereof the one is prisoner by matter of Record and the other by matter in déed A prisoner by matter of Record is when one that is present in Court is committed to prison by the Court. In this case if the kéeper of the prison hath not this prisoner alwaies readie when the Court will send for him Fi. Cor. 466 or else doe shewe a reasonable cause why he cannot haue him the Court will iudge this an escape by the Kéeper without further inquitie But if the Kéeper of the prison bee in this case examined by the court of his prisoner 39 H. 6. 33. and he will say nothing the Court will adiudge it a voluntarie escape Fi. Cor. 352 25 If it be found in the Coroners Roll that one did flie to the Church Escape by a towne and no abiuration is found in the same Roll in this case the court will adiudge an escape vpon the whole towne without further presentment A man killed beeing in carrying to the Gaole And if a man be apprehended for felonie in a towne Fi. Cor. 346 and carried towards the Gaole by certain of the same towne and if he doe resist them whereupon they doe kill him in this case it shal be adiudged an escape vpon that town for in that hee was not safely carried to the Gaole attainted of felonie the king doth loose his escheats 26 When the Deciners doe present that a felon is apprehended for felony Escape by the Sherife and deliuered to the Sherife it will be adiudged an escape if they doe not declare to which Sherife he is deliuered and name him so that his rolls may bée searched and seene whether the prisoner came within the charge of the Sherife Fi. Cor. 345. and if it be not found how he came out of the Sherifs ward according to the law of the Realme an escape shal be adiudged vpon the Sherife 39. H. 6. 33. 27 It is vsed in the Kings Bench A Coroner sent to the Marshalsey to enquire c. to send a Coroner once or twice euery Terme to the Marshalsey to see all the prisoners that be committed to the marshall by matter of Record and if any of them be wanting cannot be found there to set his name in a booke and to informe the Iustices thereof and then the Court will examine the Marshall thereof and if he cannot sufficiently excuse himselfe the Court will record escapes vpon him for euery of them 21. As p. 12. 28 And touching those which bee prisoners of Record Confessing auoiding of an escape the Kéeper of the prison cannot trauerse the escape but confesse and auoyd it as in alleadging that the prison was burnt or broken by the Kings enemies or by saying that he which is supposed to be escaped is not the same prisoner which was committed to him 29 Prisoner by matter in fait is where one is prisoner by arrest onely Prisoner by matter in fait viz. by arrest whether it be by the Sherife the Constable or any other and he doth escape there the Escape shall bee presented before he shall aunswer vnto it And this presentment ought to be before the Iustices of the Kings Bench the Iustices in Eire or some other Iustices that haue authoritie to enquire thereof Before whom an escape shall be presented As it appeareth by the Statute of Westminster 1. the words whereof be these It is ordained St. 3. E. 1. 4. that nothing shall be demanded nor taken nor leuied by the sherife nor by any other for the escape of any theefe or felon vntill it shal be adiudged by the Iustices in Eire And he that shall doe otherwise shall restore to him that paid it so much as he hath receiued and to the King as much And likewise by the Statute of 31. Ed. 3. St. 31. E. 3. 14. it is prouided That the Escape of felons and Clerkes conuict shall bee adiudged by the Iustices and by their viewe leuied And though the foresaid Statute of Westminster the first doth not make mention of any but of Iustices in Eire 21 As p. 12. 27. As p. 1. yet it doth also extend to the Iustices of the Kings Bench because the Kings Bench is in Eire and higher then an Eire for if the Iustices in Eire doe sit in a Countie and the Iustices of the Kings Bench come thither the Eire shall cease Iu. of peace and Coroner shall enquire of escapes 30 And by the Statute of 1. R. 3. St. 1. R. 3. 3. Iustices of Peace may enquire of all manner of Escapes of euery person arrested and imprisoned for felonie And by the Statute of 3. H. 7. St. 3. H. 7. 1. They may enquire of the escape of any that hath committed murder and make certificat thereof into the Kings Bench. And also by the said Statute of 3. H. 7. the Coroner vpon the viewe of the dead body may enquire of the escape of the murderer for if he doe commit the murder in the day and escape the towne shal be amerced And also the Coroner shall deliuer his Inquisition therof to the Iustices at the next Gaole deliuerie of the same Countie Trauerse to a presentment of an escape 31 Vpon an escape for the which no fine is to be paied Fi. Cor. 291 328. 346. but an Amerciament he or they which be charged therewith shal haue no Trauerse to the presentment thereof Quia de minimis non curat lex Escapes inquirable in Leetes and Turnes 32 Although Escapes of felons be at this day inquirable in Léetes and Sherifes Turnes yet it shall not be leuied vntill it be adiudged before the Iustices for that should bee contrarie to the foresaid Statute of Westminster 1. The penalties of escapes 33 The penaltie of him which doth voluntarily suffer one arrested for felonie to escape is the forfeiture of all that he hath because it is felonie The penaltie of him which doth suffer a negligent escape of a felon is to pay a fine The penaltie for the escape of him which was neuer arrested is but an amerciament And if any doe suffer him that is attainted of felonie negligently to escape he shall pay to the King for a fine an hundred pounds And if the partie escaping were but indicted and not attainted then he shall paie to the King for a fine a hundred shillings If one which is not indicted nor taken with the manner nor apprehended at the suit of the partie 42. As p. 5. but onely taken by a straunger for susption of felonie do escape there shal no penaltie nor punishment follow thereof But yet if after the same escape he
action sute bill plaint or information sued commenced or preferred shall by such displacing or death be abated discontinued or ended But it shall and may be lawfull to and for the Clerke for the Peace next succéeding in the saide Countie to prosecute pursue and follow all and euery such action bill plaint sute and information for the causes aforesaid so hanging and depending in such maner and forme to all intents and purposes as that Clerke of the Peace might haue done which first commenced or preferred the said sute bill plaint or information 8 Although the whole Hundred where such robberies and felonies are committed with the liberties within the precincts thereof are by the said two former statutes charged with the answering to the partie robbed his dammages yet neuerthelesse the recouerie and execution by and for the partie or parties robbed is had against one or a very few persons of the saide inhabitants and he and they so charged haue not héeretofore by Lawe had any meane or way to haue any contribution of or from the residue of the saide Hundred where the said robbery is committed to the great impouerishment of them against whom such recouerie or execution is had for the remedy whereof by the saide statute of An̄ 27. Eliz. St. 27. El. 13 it was enacted That after execution of dammages by the partie or parties so robbed had it shall and may be lawfull vpon complaint made by the partie or parties so charged to and for two Iustices of the Peace whereof one to be of the Quorum of the same Countie inhabiting within the saide Hundred or neare vnto the same where anie such execution shall be had to assesse and taxe ratably and proportionably according to their discretions all and euerie the Townes A remedy for an equall contribution Parishes Villages and Hamlets as well of the saide Hundred where any such robberies shall be committed as of the Liberties within the saide Hundred to and towards an equall contribution to be had and made for the reliefe of the saide inhabitant or inhabitants against whom the partie or parties robbed before that time had his or their execution And that after such taxation made the Constables Constable Headboroughs or Headborough of euerie such Towne Parish Village and Hamlet shall by vertue of this Act haue full power and authoritie within their seuerall limites ratably and proportionably to taxe and assesse according to their abilities euerie inhabitant and dweller in euerie such Towne Parish Village and Hamlet for and towardes the paiment of such taxation and assessement as shall be so made vpon euery such Towne Parish Village and Hamlet as aforesaide by the saide Iustices And if any Inhabitant of any such Towne Parish Village or Hamlet shall obstinately refuse and denie to pay the saide Taxation and assessement so by the said Constables Constable Headboroughs or Headborough taxed assessed then it shall and may be lawfull to and for the said constables headboroughs euery of thē within their seuerall limits iurisdictions to distraine all and euery person and persons so refusing and denying by his their goods and chattels the same distresse to sell and the mony therof comming to retaine to the vse aforesaid And if the goods or chattells so distrained and solde shall be of more value than the said Taxation shall come vnto then the residue of the said money ouer and aboue the saide Taxation shall be deliuered vnto the said person or persons so distrained Deliuering the contribute money 9 All and euery the saide Constables and Headboroughs St. 27. El. 13 after that they haue within their seuerall limites and iurisdictions leuied and collected their said rates and summes of mony so taxed shall within ten daies after such collection pay and deliuer the same ouer vnto the said Iustices of Peace or one of them to the vse and behoofe of the saide Inhabitant or Inhabitants for whom such rate taxation or assessement shall be had or made as aforesaide Which money so paied shal by the Iustices or Iustice so receiuing the same be deliuered ouer vpon request made vnto the saide Inhabitant or Inhabitants to whose vse the same shall be collected Leuying of cantribution 10 And the like taxation assessement leuying by distresse and payment St. 27. El. 13 as aforesaide shall be had and done within euerie Hundred where default or negligence of pursute and fresh sute shall be for and to the benefite of all and euery Inhabitant or Inhabitants of the same Hundred where such default shall be that shall at any time héereafter by vertue of this Act haue any dammages or money leuied of them for or to the paiment of the one moitie or halfe of the mony recouered against the said Hundred where any robberie shall be hereafter committed No penaltie where any of the offenders be apprehended 11 Prouided that where any robberie is St. 27. El. 13 or shal be hereafter committed by two or a greater number of malefactors and that it happen any one of the said offenders to be apprehended by pursute to be made according to the saide former mentioned Lawes and Statutes according to this present Act that then and in such case no hundred or franchise shall in any wise incurre or fall into the penaltie losse or forfeiture mentioned either in this present Act or in any the saide former statutes although the residue of the saide malefactors shall happen to escape and not to be apprehended Any thing in this statute or in the said former statutes to the contrary notwithstanding Which saide Braunch doth in some sort qualifie part of the foresaid statute of Winchester for by the saide statute Col. 7. fol. 7 the Country must agrée for the saide robberie within halfe a yéere or else they shall be answerable for the bodies of the saide offendors which is of all the offendors But by this statute it is sufficient if they take any of the offendors although not all St. 27. Eli. 13 12 Prouided also Within what time the sute shal be commenced That no person or persons héereafter robbed shall take any benefite by vertue of any the saide former Statutes to charge any Hundred where any such robberie shall be committed except hée or they so robbed shal commence his or their sute or action within one yeere next after such robberie so to be committed St. 27. Eli. 13 13 No huy and crie In what maner huy and crie shal be made or pursute héereafter to be done or made by the Country or inhabitants of any Hundred shall be allowed and taken to be a lawful huy and crie or pursute vpon or after any of the saide felons or offendors except the same huy and crie and pursute be done and made by horsemen and footmen Any vsage or custome to the contrary notwithstanding St. 27. El. 13 14 No person or persons that shal hereafter happen to be robbed
Notice must be giuen of the robberie shal haue or maintaine any action or take any benefite by vertue of the saide two mentioned Statutes or either of them except the saide person or persons so robbed shall with as much conuenient spéede as may be giue notice and intelligence of the same felonie or robberie so committed vnto some of the inhabitants of some Towne Village or Hamlet neare vnto the place where any such robberie shall be committed Nor shall bring or haue any action vpon or by vertue of any the statutes aforesaide except hée or they shall first within twentie dayes next before such action to be brought be examined vpon his or their corporall Othe to be taken before some one Iustice of the Peace of the Countie where the robberie was committed inhabiting within the said Hundred where the robberie was committed The party robbed examined â— bound to prosecute the offenders or neare vnto the same whether hée or they doe knowe the parties that committed the said robberie or any of them And if vpon such examination it be confessed that he or they doe know the parties that committed the saide robberie or anie of them then he or they so confessing shall before the saide action be commenced or brought enter into sufficient bond by Recognisance before the saide Iustice before whome the saide examination is had effectually to prosecute the same person and persons so knowen to haue committed the saide robbery by indictment or otherwise according to the due course of the Lawes of this Realme 15 Because the inhabitants of the Hundred of Benherst in the countie of Berke consisting onely vpon fiue small villages and three hamlets and hauing in it two great road waies of three miles in length at the least through the Thicket haue béene ouercharged by seuerall Braunches of the said Statute of Anno 27. Eli. 13. In reformation thereof by a Statute made anÌ„ 39. Elizab. St. 39. E. 2â— it was enacted That the inhabitants of the Hundred of Benherst alias Beinersh within the Countie of Berke shall and may to their owne proper vse A remedy for the inhabitaÌ„ts of Benherst in Barkshire in the name of the Clerke of the Peace of the said Countie of Berke recouer haue and leuie all such summes of money costs and dammages as hereafter shall be recouered or leuied of or against them by the foresaide Statutes or any of them against the inhabitants and resiants of euery or any such Hundred with the franchises within the precincts thereof wherein negligence fault or defect of such pursute and fresh sute as by the said Statute of 27. Elizab. is appointed to be made shall happen to be after notice giuen or huy and crie brought to the saide inhabitants or resiants or any of them of or vpon any robberies which shall be at any time héereafter done within the saide Hundred of Beinersh And this present Act shal giue as full power and authoritie in all respects to the inhabitants of the saide Hundred of Benherst in the name of the Clerke of the Peace of the saide Countie for recouerie hauing and leuying of all the saide money costs and dammages as aforesaide as the aforesaide Statute of 27. Elizab. gaue or intended to giue for the recouerie of a moitie or one halfe thereof Prouided alwaies that no such remedie or recouerie shall be had In what cases onely the recouerie shall be had by this Statute for all or the whole summe or summes of money and dammages aforesaide but onely in these two Cases viz. The one where no such notice or intelligence as by the said Statute of 27. Elizab. was appointed to be giuen of euery or any Robberie shall be giuen to the inhabitants of the saide hundred of Benherst alias Beinersh The other where the inhabitants of the same Hundred after such notice of any Robberie to them or some of them giuen or after huy and crie for the same to them brought shall make or cause to be made fresh sute and pursute after the offenders with horsemen and footmen according to the saide Statute of 27. Elizab. and where neuerthelesse the offenders or any or one of them shall not be apprehended within fortie daies after the Robberie committed 16 Two ioynt owners of a sumine of mony P. 24. El. Di. 370. which were robbed by felons vnknowen at A. in the Hundred of B. in the countie of C. brought their action against the inhabitants of the said Hundred of B. and declared that wheras huy and crie was leuied by them and notice there giuen and the felons were not appreheÌ„ded nor descried nor amends made within the six months according to the statute of Winchester whereunto the defendants viz. the inhabitants of the saide Hundred of B. pleaded in barre of the action that immediately vpon the huy and crie leuied they made fresh sute from the said Towne of A. where the robbery was committed thorow their other townes vnto the towne of D. which is next adioyning to the said Hundred and there huy and crie was giuen to the inhabitants of the saide Hundred â—â—rsute wil not serue â—â—thout apprehensioâ— of thâ—â—â—lonâ— or descrying theÌ„ But this maner of pursute was adiudged no excuse according to the meaning of the said statute of Winchester without apprehending or answering of the robbeâ—s or descrying of their names that they might be indicted and outlawed And in this case the plaintifes may ioyne in action because they were ioynt owners of the money But if the summes of money had béene seuerall and they had seuerall properties in them they would not haue ioyned in Action Arresting of him â—hat is pu sued by huy and crie 17 If a man be driuing of cattell and be pursued by huy and crie 29. Ed. 3. 39. the Shirifes Bailiffe or any other may arrest him and the cattell supposed to be stolen and commit them to the Towne where they be apprehended to answer to the King according to the Lawe though the man arrested be not of euill name suspicious nor a stranger in those partes nor indited For the Lawe doth giue that credite to huy and crie that euerie man is a sufficient Bailiffe and officer to apprehend him that is pursued by huy and crie and taken with the thing supposed to be stollen And therefore if one man doe leuie huy and crie vpon an other without cause both the one partie and the other shall be attached to answer it as disturbers of the Peace Appeales WHen a murder manslaughter rape burglarie robberie or other felonie is committed and that the offendor be he principall or accessorie is apprehended by huy and crie or by any other meanes and so by imprisonment or mainprise brought to his answer Or otherwise if he flée and escape when he is so discouered and knowen that Processe may be awarded against him by name to take him and bring him into the Kings court of his answer Then either the
the appeale be fresh and the signe of truth apparant by effusion of blood or an open outcrie leuied But if it be without any manifest token or outcrie two pledges shall suffice Within what time an appeale shal be commenced 33 The before mentioned Statute of Gloucester hath ordained St. 6. Ed. 1. 9 That an appeale shall not be abated for default of fresh sute where a man doth sue within a yéere and a day after the déede done These words of the Statute be generall not making mention more of an appeale of death than of an appeale of any other felonie But yet conferring them with the other words in the statute they may be intended specialy to extend to an appeale of death and to none other appeale for if a man that is robbed doth make fresh sute 7. H. 4 44. and doe his endeuour to apprehend the felon and vse all his diligence to find him although he doe not commence his appeale two or thrée yeares after the robberie committed yet he may then well pursue it And so in appeale of robberie fresh sute shall be decided by the discretion of the Iustices H. 22. Ed. 4 39. But in an appeale of death it is a good plea for the Defendant to pleade that he of whose death this appeale is pursued died aboue a yeare and a day before the said appeale commenced 34 The words of the foresaid Statute of Gloucester be St. 6. Ed. 1. 9 That a man shall pursue his Appeale within a yeare and day after the déed done From what time the yeare shal haue relation touching an appeale And therefore if one man doe strike another vpon one day and he dieth of the same stroake certaine daies after Co. l. 4. 42 the Appeale shal be commenced within the yeare and day after the death and not within the yeare and day after the stroake giuen for there was no felonie committed vntill the man was dead But yet if one mā doe giue to another a mortall wound in Februarie and the king doth in April next giue pardon to the offendor of all felonies before that time committed Plo. com f. 401 and the partie stricken doth die of the same wound in May following How the K. pardon shal haue relation this pardon shall discharge the offendor because the wound giuen by the offendor was the cause of the felonie the which wound was the offence towards the King and that the king hath pardoned and so thereby the death of the partie and all other things depending vpon the same offence be pardoned 35 Where the words of the Statute of Gloucester be The yere shall haue relation to that offēce That a man shall pursue his Appeale within a year and a day after the deed done St. 6. E. 1. 9. Those words viz. the déed done shal be intended of the felonie whereupon the appeale is commenced for if one be accessorie to another a yeare after the homicide or murder committed 26. Ass p. 52 an appeale shal be pursued against him and yet it is not within the yeare and day after the homicide or murder committed S. Br. 52. St. 3. E. 1. 13 36 It appeareth by Britton and also by the Statute of Westminster 1. that an appeale of Rape ought to be commenced within fourtie daies after the fact done Within what time an appeal of rape shal be commenced But then Rape was but a trespasse which after by the Statute of Westminster 2. was made felonie St. 13. E. 1. 34. In which Statute of Westminster 2. there is no time limited within the which a woman shal be compellable to pursue her Appeale of Rape And therefore it séemeth she is at libertie to bring it when she will so that it be within a reasonable time 18. Ed. 3. 32 37 An appeale ought to be brought in the Countie where the felonie was committed as if it be murder or homicide In what countie an appeale shal be brought where the same murder or homicide was done But if a man be striken in one county and then goeth into another countie and there dieth of the same wound by the common law an appeale may be commenced either in the countie where the stroake was giuen A man strickē in one countie dieth in another or in the countie where the partie stricken did after die and the trial thereof shal be by the Iurors of both the counties 3. H. 7. 12. 4. H. 7. 18. viz. as well of the countie where he was stricken as of the countie where he died And so it was at the plaintifes pleasure to bring his appeale in which of those two coūties he would But since by the Statutes of Anno 2. 3. E. 6. St. 2. 3. E. 6. 24. it is ordained That where any person shal be feloniously stricken or poisoned in one countie and die of the same stroake or poysoning in another countie then an indictment thereof found by Iurors of the countie where the death shall happen whether it be found before the Coroner vpon the sight of such dead bodie or before the Iustices of peace or other Iustices or Commissioners which shall haue authoritie to enquire of such offences shal be as good in law as if the stroake or poysoning had béene committed in the same countie where the partie shall die or where such inditement shal be found And such party to whom appeale of murder shal be giuen by the law may commence take and sue Appeale of murder in the same countie where the partie so feloniously stricken or poysoned shall die as well against the principal and principals as against euery accessorie to the same offences in whatsoeuer countie or place the accessorie shal be guiltie to the same And the Iustices before whom any such appeale shall be commenced sued and taken within the yeare and day after such murder manslaughter committed shall procéede against euery such accessorie in the same countie where such appeale shal be so taken in like manner and forme as if the same offence of accessorie had beene committed in the same countie where such appeale shal be so taken as well by the triall of the Iurors of the countie where such appeale shal be taken vpon the plea of not guiltie pleaded by such offendor Accessories in other offences sauing murder as otherwise But note that no Appeale is giuen by this Statute Stamford nor remedie prouided against accessories in a forreine countie of other felonies sauing for murder or manslaughter but the same is left to the common law In what coūtie an appeale of Rape shall be brought 38 An appeale of Rape ought to be brought in the countie where the Rauishment was done And therefore if a man doe take a woman against her will in one countie and then carrie her into another countie and there doe rauish her the appeale shal be onely commenced in the
said appeale is entred ought to be prisoner in the same Gaole and if not the same appeale is void S. Approuers 19. St. 28. E. 1. 9. H. 4. 2. Yet an approuer may appeale others that are not in prison but at large which is by force of the statute of 28. Ed. 1. de Appellatis And when an appeale is commenced before Iustices of Gaole deliuerie against diuers whereof there is but one in prison before them this appeale ought to be remooued into the Kings bench by a Certiorari and from thence proces shall be awarded against them which be at large Anno 1. M. Dyer 99. And Iustices of Assise may hold plea of appeales of robberie An appeale before Iu. of Assise by the commission of Gaole deliuerie An appeale before the I. of the Kings Bench. 45 As well as Iustices of Gaole deliuerie and the Sherife and Coroners haue authoritie to receiue an appeale by Bill 17. Ed. 3. 13 in like sort Iustices of the kings bench haue power to accept an appeale by Bill for they be the soueraigne coroners of the Realme Appeale against one Bayled 46 If one be in prison for felonie in the Kings bench 21. H. 7. 33. 32. H. 6. 4. or before the Iustices of Gaole deliuerie and after let to baile yet an appeale by bill may be commēced against him for he is a prisoner notwithstanding that bailement for they which tooke him in batle be his guardians and shall be charged if he escape some doe affirme that they may imprison him and some do hold that they shall be hanged for him And vpon his bailement he shall find sureties to answer to all persons No appeale against him that is let by mainprise But an appeale is not to be pursued against him 9. Ed. 4. 2. 39. H. 6. 27. who is let at libertie by mainprise for that he is not in ward No appeale before Iustices of peace 47 Some doe affirme that an appeale may be commenced before Iustices of peace for they haue authoritie by their commission 44. E. 3 44. and by the Statute of 18. Ed. 3. 2. to heare and determine felonies But others doe hold that they must onely procéed vpon indictment found by a Iurie before them and not vpon an appeale prosecuted at the suit of the partie grieued for the words of their commission be Ad inquirendum per Sacramentum proborum legalium hominum de comitatu praedicto per quos rei veritas melius sciri poterit de omnibus omnimodis felonijs c. Et ad omnia singula felonias c. indictamēta praedicta caeteraque omnia singula premissa secundum leges statuta regni nostri Angliae prout in huiusmodi casu fieri consueuit aut debuit audiendum terminandum By which words it is to be inferred that they shall enquire and punish at the Kings suit vpon indictment and not at the parties suit by appeale such felonies as shall bee committed within their Iurisdiction 48 If one of the Kings subiects doe kill another of his subiects in a forrain Realm the wife or next heire of him that was slain as the case requireth An appeale before the Constable and Marshall may haue an appeale of the same death in England before the Constable Marshall of England St. 1. H. 4. 14 by force of the Statute of 1. H. 4. which doth ordaine That all appeales of things committed within the Realme shall be tried and determined by the lawes of the Realme and of things committed out of the realme before the Constable and Marshall of England for the time being And no appeales fromhenceforth shal be made or pursued in Parliament No appeale in Parliamēt Bracton Britton 49 It doth appeare by Bracton and Britton Where there shal be diuers appeales for one felonie and where not that one might haue had in former ages one appeale against the principall and another against the Accessories but since that law is changed viz. The appellant shall haue but one appeale Co. li. 4. 47. in the which he must comprehend as well the principals as the accessories vnlesse it be in speciall cases and that is confirmed by the Stat. of West 1. St. 3. E. 1. 14 which doth ordaine That no person shall be outlawed vpon appeale of commandement force aide or receit vntill the principall be attainted But the appellant shall not let to attach his appeale at the next countie as well against the accessorie as against the principall But the Exigent against the accessorie shall staie vntill the principall be attainted by outlawrie or otherwise 9. H. 4. 1. 50 In an appeale against two if one doe appeare One only appeale for one felonie and the other make default yet the plaintife shall count against them both and the same law which compelleth the appellant to count at one time against them both doth enforce him to sue his appeale against them both for if an appellant doe bring an appeale against one person Co. l. 4. 47 and the appellée is attainted and hanged at his suit and after he will bring an other appeale against one or two others for the same offence he shall take no benefit by his suit for he should haue ioyned thē all in his first appeale 47. E. 3. 16. And the same law is if the first appellée had béene acquited or that the appellant had bin Non suit after apparance 51 It séemeth that in some cases at this day one may haue diuers appeals for one felonie Where diuers appeales for one felonie as if one in one countie doe procure another to robbe a man in another countie In this case the partie robbed shall haue one appeale against the principall in one countie and another against the accessorie in another countie or otherwise he should be without his remedie against the accessorie by Appeale St. 2. 3. E. 6. 24. But by the Statute of Anno 2. 3. E. 6. if one in one countie doe procure another to kill a man in another countie hee to whom the appeale of murder is giuen shall commence his appeale in the countie where the partie shall die S. Br. 37. 26. Ass p. 52 Co. li. 4. 48. 52 And so it is Two appeals founded vpon one felonie if the Appellant doe commence his appeale against the principall within a yeare and a day after the felonie committed and after the said appeale commenced another will receiue the same felon In this case the appellant may pursue another appeale against the said accessorie for these two be seuerall felonies which began at seuerall times S. Br. 35. Robbery of seuerall parcels of goods 53 If a man be robbed of two seuerall parcels of goods at one time he cannot haue two seuerall appeales for them and put parcel of the goods robbed in one appeale and parcel in
supposed is and was conuersant within the countie whereof the indictment or appeale maketh mention but the like proces shal be made against such indicted or appealed person as hath béene vsed 62 And because after the making of the sayd Statute of Anno 8. H. 6. some intending to defraud the sayd Statute did sue to remooue such appeales and indictments out of the hands of the Iustices or Commissioners aforesayd into the Kings bench and elsewhere by Certiorari or otherwise vnknowne to the partie so indicted and therupon sued the proces vsed at the common law before the making of the said Statute in the Kings Bench and elsewhere after the remoouing therof to the great impouerishment of diuers the kings subiects Therefore by the Statute made Anno 10. H. 6. St. 10. H. 6. 6 it was enacted Proces vpon an indictment or appeale remoued into the K. bench That if any such indictments taken before any Iustices of peace or any other hauing power to take such indictments or appeales or other Iustices or Commissioners in any county franchise or libertie of England shal be remoued into the Kings Bench or elsewhere by Certiorari or otherwise then after such remoouing before any Exigent awarded vpoÌ„ any such indictment or appeal in form aforesaid taken immediatly after the first writ of Capias vpon euery such indictment or appeale awarded and returned another writ of Capias shall bee awarded directed to the Sherife of the countie wherof he that is indicted or appealed is or was supposed to be conuersant by the same indictment or appeale returnable in the K. Bench at a certaine day contayning the space of thrée moneths from the date of the said last writ of Capias according to the maner and forme that the I. of peace and others ought to haue done before such remouing And if any Exigent be awarded vpon any such indictment or appeale after such remouing against the forme aforesaid or any outlawrie thereupon pronounced as wel the same Exigent as the outlawrie and euery of them shal be void In the Appeale he must be supposed to be of a forrein County 63 The foresaid stat of 8. H. 6. doth not take place St. 8. H. 5. 10. but where by the Appeal or by the Indictment it is precisely supposed that the defendant was dwelling in a forrein county for if he be supposed to be dwelling there by an Alià s dictê° it is out of the compasse of the stat 1. E. 4. 1. As in an appeal or indictment in the county of Middlesex against A.B. in comitatu tuo yeoman alias dictum A.B. de C. in comitatu Sussex yeoman Because that which is supposed by the Alià s dictê° is not trauersable nor materiall And likewise it is in an appeale or indictment against I. of S. in comitatu H. nuper de L. in comitatu K. nuper de R. in comÌ„ T. An appellée dwelling in no place certaine 64 If a man be appealed to be dwelling in no place certaine the day of the Appeale commenced but in this maner Fitz. Proces 192. viz. nuper de S. in comitatÌ„ L. and nuper de B. in comitÌ„ T. then proces shal be awarded into all the counties whereof he is so supposed to be of late dwelling Proces into a County Palantine 65 The foresaid stat of 8. H. 6. hath ordained That after the first Capias St. 8. H. 6. 10 another Capias shal be awarded to the Sherife of the county whereof he which is so indicted is or was supposed to be dwelling by the same indictment And therefore if an appeale or indictment be exhibited against one in the countie of M. naming him of D. in the county of Chester or of some other place which is a countie Palantine In this case no proces can be awarded vpon this Stat. which may be directed to the Sherife according to the words of the Statute But proces shal be awarded vpon this statute to the prince or his lieutenant 19. H. 6. 2 31. H. 6. 11. for it is in like mischiefe and the statute is generall in all the Realme which doth bind as well those which be of a Countie Palantine as others But if they of the Countie Palantine will not serue and returne the writ directed to them vpon this statute then without further delay the Exigent shall be awarded otherwise the party should be infinitly delaied Proces against principal accessory 66 The foresaid Proces specified in the before rehearsed stat of 8. H. 6. shal extend as well to accessories as to principals sauing that the Exigent as to the accessories shall be staied vntill the principals be outlawed And that by the Statute of West 1. the words whereof be these St. 3. E. 1. 14 Because men haue vsed in some counties to outlaw such persons as be appealed of commandement force aide or escape within the same terme that they do outlaw him which is appealed of the fact it is ordained that none shal be outlawed for an appeale of commandement force ayd or receit vntill he that is appealed of the déed be attainted so that one law shal be thereof through the whole Realme But the appellant shall not let to attach his appeale at the next countie against them as well as against the appellées of the déed But the Exigent against the Accessorie shal stay vntill the appellée of the déed be attainted by outlawrie or otherwise And Britton Britton doth affirme That as soone as the principals be outlawed the Exigent shal be awarded against the accessories St. 3. E. 1. 14 67 The before rehearsed statute of West 1. séemeth onely to extend to Appeales commenced by bill The stat of W. 1. exteÌ„deth onely to Appeals commenced by bil for in an Appeale commenced by writ it appeareth not vntill the declaration made thereupon that there bée any accessories in the Appeale but for any thing contained in the writ all doe appeare to be principals 43. Ed. 3. 17. and for that cause the Exigent is awarded against them all at one time And therefore the plaintife must be aduised how he doth pray the Exigent and against whom for if he do pray the Exigent against them all he is therby concluded after to count against any of them as accessories for the law intendeth that he must take knowledge which were accessories and which not And therefore in that case he should haue staid the demaunding of the Exigent against them vntill the principals had béene attainted And that is the difference betwéene the principals and the accessories as touching the time of the awarding of the Exigent 68 If an Appeale be brought against diuers and one doth appeare plead In Appeale one doth appeare and another makes default yet proces shall be continued against the residue But if hee which appeareth doth plead in abatement of the Appeale or matter in barre which proueth that the Appeale
plead that the plaintife is outlawed 17. Ass p. 26 11. Ass p. 27 18. E. 3. 35 Fi. Cor. 3 or is attainted of Treason or Felony or otherwise is disabled to maintaine an appeale as if a woman doe bring an appeale of the death of her husband and the defendant doth plead that she and her said husband were neuer accoupled in lawfull marriage or that she hath married another husband Or that the appeale was not cōmenced within the yeare day after the offence committed Or that the appellant hath an elder brother liuing to whom the appeale is giuen Fit cor 384 387. not to the plaintife And all those matters which shal be a barre to the plaintife to bring the appeale shall also be a barre to the K. to take any aduātage against the appellée vpō the same appeal for in all these cases it may appeare that the appeale was cōmenced without cause grounded vpon false insufficient matter And the king shall be in no better condition than the appellant for the defendant is arraigned vpon the declaration of the appellant and yet it is otherwise where the Appeale was at the first grounded vpon sufficient and true matter But in all the cases aforesaid though the king can take no aduantage of the Appeale against the defendant yet he may compel him to answer to an indictment of the same felonie for that by these pleas the defendant is not discharged of the felonie though he be discharged of the Appeale S. Approuers 15. 17. 18. 19. No appeale of Treason 97 If an act which was murder felony or other offence by the cōmon law be after made treason by stat then one doth offend in the same no Appeal wil lye against him therefore for that no Appeale will lye of High or Petit Treason And therefore whereas wilfull poysoning was wilfull murder by the common law and after by the stat of 22. H. 8. 9. the same was made high treason and ordained that the offendor therein should be boyled to death which stat was sithence repealed by the stat of 1. Ed. 6. 12. 1. M. yet during the said stat of 22. H. 8. in force the sonne and heire of a man poysoned brought an appeale against a woman for poysoning her husband and because the offence was then high Treason M. 33. H. 8. Dyer 50. and no appeale will lye of Treason the appeale was adiudged not maintanable And yet by the ancient lawes of this realme as Bracton affirmeth the accusor might haue pursued an appeale of high Treason against the defendant or party accused Bracton de coron̄ c. 3 and the defendant might haue thereunto pleaded not guilty and waged battell with the accusor But that Law is sithence altered ⧠Indictments What an Indictment is 1 AN Indictment of Treason Felony Trespas or other offence is an inquisition taken and made by twelue men at the least thereunto sworne whereby they doe find and present that such a person of such a name and sirname dwelling in such a place of such a County and of such a degrée hath committed such a Treason Murther Rape Burglarie Robberie Felony Trespas or other offence at such a place vpon such a day and in such a manner against the Kings peace his Crowne and Dignitie and contrary to the Lawes of this realme and so it is an accusation by the Iury of the offendor and an information of the Court from whence they receiue their charge of his offence and of all such necessary circumstances thereof and in such certaintie that thereupon the same Court may procéed to the triall or arraignement of the party accused if he be present or otherwise may award Proces against him to appeare and to make answere thereunto if he be absent And because this Indictment and accusation doth sometime concerne the life or member of man sometime his liberty sometime his fame and credite sometime his Lands and Tenements and some other time his Goods Cattels Therefore the Law hath a speciall regard that the procéedings therein may be effected with all sinceritie and vpright dealing and doth carry a vigilant and watchfull eye not onely vpon the Iurors which are returned and sworne in those Enquests that they may be men of integritie sufficiencie and indifferencie but also vpon Shirifes and Baylifes of Liberties who haue authoritie to returne the same Iurors for she hath prouided by seuerall Statutes That they shall take no Indictments by Commissions procured at their owne sute but in their Turnes That they shall hold their Turnes St. 28. E. 3. 9 St. 31. E. 3. 14 St. 13. E. 1. 13 St. 1. E. 3. 16 and take Indictments but in conuenient and vsuall times That they shall take Indictments by twelue men at the least and then by Roll indented That they shal take their Indictments by men of good name credit and sufficient of estate St. 1. R. 3. 4 St. 1. E. 4 3. That they shall bring their Indictments and Presentments found and made in their Turnes to the Iustices of Peace of the same Countie that they may award Proces against those that be indicted and set fines vpon them That Iurors impanelled to make inquiries St. 11. H. 4. 9 shall be lawfully returned by shirifes or baylifes of Franchises without the denomination of any other person That Panels returned by the Shirife to make inquiries St. 3. H. 8. 12 St. 3. H. 7. 1 may be reformed by the Iustices and that one Enquest may be impanelled and charged to inquire of concealements of offences made by another Enquest So that the Law hath prouided that Indictments may be found by men of worth and vpon iust causes And as touching Commissions because in times past Shirifes of diuers Counties by vertue of Commissions generall Writs graunted vnto them at their owne sute for their priuat gaine did take diuers Enquests to indict people at their owne pleasures Commissions to shirifes to take indictments and then tooke fines and ransomes of them to their owne vses and after set at liberty the parties and neuer brought the same persons so indicted before the Kings Iustices to be deliuered there according to the forme of Law It was therefore by a Statute made Anno 28. Ed. 3. St. 28. E. 3. 9 ordained That all such Commissions Writs should be from thenceforth repealed and that none such should be at any time after graunted By force of which Statute the Shirife is restrained to make any inquirie by Writ or Commission The shirife may inquire of Felonies But yet by vertue of his office he may at this day make inquirie in his Turne of Felonies obseruing such orders as by the statutes hereafter limitted be expressed St. 9. H. 3. 36 2 Whereas by the statute of Magna Charta it was ordayned That no Shirife or his Baylife shall hold his Turne by Hundreds but twice in the yeare in
indicted and tried in the County where he doth commit the offence whereof he is so indicted yet for the preseruation of mans life and condignely to punish such persons as vnlawfully and wilfully murther slay or destroy men and to preuent the practise of those Théeues and Robbers that doe steale or robbe in one Countie and conuey their spoyle or part thereof to some of their adherents knowing thereof in another Countie St. 2. 3. Ed. 6. 24. by a Statute made Anno 2. 3. Edw. 6. it was enacted That where any person or persons shall be feloniously stricken or poysoned in one County A man strickeÌ„ or poysoned in one county dieth in another and dye of the same stroake or poysoning in another County that then an Indictment found by Iurors of the County where the death shall happen whether it shall be found before the Coroner vpon the sight of any such dead body or before the Iustices of Peace or any other Iustices or Commissioners which shall haue authoritie to enquire of such offences shall bee as good and effectuall in Law as if the stroake or poysoning had béene done or committed in the same Countie where the party shall dye or where such Indictment shall bée so found And by the same Statute it was further ordayned That where any Murther or Felony shall bée committed and done in one County and another person or moe shall bée accessarie or accessaries in any manner wise to any such Murther or Felony in any other County Indictment of an accessary in one county to an offeÌ„ce done in another that then an Indictment found or taken against such accessarie or accessaries vpon the circumstance of such matter before the Iustices of Peace or other Iustices or Commissioners to inquire of felonies in the County where such offences of accessarie or accessaries in any manner of wise shall bée committed or done shall bée as good and effectuall in the Law as if the principall offence had béen committed or done within the same County where the same Indictment against such accessary shal be found 6. H. 7. 10 7. H. 7. 8 Before which Statute made the manner was B to carry the body of the offendor to the County where the first offence was committed and there to indict and try him A man was indicted in the County of Middlesex for that hee in the same County procured another man to kill a third man in the Countie of Essex Fi. Cor. 33 by force whereof hée did kill him accordingly This was a good and sufficient Indictment for hée was indicted in the county where he committed his offence Kel fol. 67. viz. the procurement And if a man being in one county doth procure another to kill a third person in another couÌ„ty whereby he doth kill him accordingly in this case a Iury of the county where the murther was committed may indict this procuror as accessory for that this murther was begun by his procurement Insidiatores viarum depopulatores agrorum 15 By the Statute of Anno 4. H. 4. it was ordained St. 4. H. 4. 2. That the words Insidiatorum viarum Depopulatores agrorum shall not be from henceforth vsed or put in Indictments Arraignements Appeales nor other impeachments Nor that by force of any such word or terme any of the kings people shall be arraigned appealed impeached nor grieued before any secular Iudge But the Iustices may take and receiue before them Indictments Arraignements and Appeales of Felony containing in them the effect of the said words and termes if any shal be hereafter indicted arraigned or appealed before them of any such Felonies And if in time to come any Clerkes shall be indicted arraigned or appealed and their indiments arraignements or appeales doe purport the effect of the said wordes or other wordes of the like effect notwithstanding they shall enioy the priuiledge of their Clergie Words not necessarie in Indictments 16 By a Statute made Anno 37. H. 8. the words vi armis viz. St. 37. H. 8. 8 cum baculis cultellis arcubus sagittis or such other like before time commonly vsed and comprised in all Indictments and inquisitions of Treason Murther Felony Trespas and other offences shall not of necessitie bée put or comprised in any Inquisition or Indictment Nor the party being indicted of any offence shall take aduantage by Writ of Error Plea or otherwise to auoid any such Inquisition or Indictment for that the said wordes or any of them shall not bée put in the said Inquisition or Indictment But the said Inquisitions or Indictments lacking the foresaid words or any of them shall bée taken to all intents as good and effectuall in Law as if the said words were in them No more shall be in an indictment then is true 17 By these two last Statutes it doth appeare St. 4. H. 4. 2. St. 37. H. 8. 8 that the Realms was offended because Indictments were stuffed with more words then the offence required and that of purpose to aggrauate the offence more then it was grieuous in it selfe For the circumstances of euery offence doe augment or diminish it according to the qualities thereof And therefore it is requisite that there shall be no further circumstance put in Indictments more then the fact sauing that which is true least Periurie should ensue and Iustice bée subuerted thereby for such words be not words of forme but as materiall and necessarie as Proditorié or Felonicè which ought to be put in euery Indictment of Treason or Felony or otherwise the Indictment is not good for they doe expresse the intent wherewith the fact was committed Felonice omitted in an indictment of felony which maketh the offence to bee knowne As one was indicted That he tooke his father being sicke Fi. Indict 3. carried him against his will from towne to towne in a great frost wherof he died and for that this word Felonicè was not in the indictment it was adiudged void And if one be indicted of murther or manslaughter 1. M. Di. 99. there must be of necessitie in the indictment a stroke supposed viz. tali die anno felonicè ex malitia praecogitata interfecit murdrauit c. without saying percussit And if a man be indicted of Piracy Piracie in an indictment there ought to be in the indictment not only this word felonicè Stamf. 114. but also this word piraticè 18. E. 3. 32. Fitz. Cor. 122. 13. Ass p. 6 18 In an action of trespas brought for the taking away of a mans wife Where a verdict shal be an indictment and the goods of the husband the def pleaded not guiltie and was found by verdict guiltie in this case the same verdict shall serue as an indictment for the K. and the def shal be thereupon arraigned of felony And in like sort â—n an action of trespas brought for the taking
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
there shall be assigned good lawfull men in euery Countie to keepe the peace and at the said assignements mention shal be made that such as shal be indited or taken by the said wardens shal not be let to mainprise by the Sherifs nor by any other if they be not mainpernable by the law Nor that such persons indited shal be deliuered Bailement of offendors by sherifes and others but according to the course of the common law And the Iustices assigned to deliuer the gaoles shall haue power to deliuer the Gaoles of those that be indited before the gardeins of the peace And the same gardeins shall send before the said Iust their inditements And the same Iustices shall haue power to enquire of Sherifes Gaolers and others in whose custodie such persons indited shal be if they deliuered or let to mainprise any so indited which be not mainpernable to punish the same Sherifes Gaolers and others if they haue done any thing contrarie to this Statute This statute of 4. E. 3. doth make no mention that the Iustices of Gaole deliuerie shall punish sherifs and others according to the foresaid statute of West as the other statute of 27. E. 1. doth but ordaineth generally that they shal be punished without determining in what maner And yet it is to be intended that they shal be punished according to the forme of the said Stat. of West 1. And moreouer the said Iustices of Gaole deliuerie may punish them by the common law 25. E. 3. 39. for a negligent escape Where mainprise is a negligent escape for it is a negligent escape to let one to maineprise who by law is not mainpernable And one Iustice did in that case set a fine vpon the Sherife for the like Bailement a hundred shillings 16 In all cases where a statute doth ordaine that an offendors bodie shal be imprisoned at the Kings pleasure Imprisonmēt at the Kings pleasure the prisoner cannot be deliuered or let to maineprise vntil the King hath signified his pleasure of him As if one be imprisoned for going or riding armed contrary to the Statute of Northampton made Anno 2. E. 3. 3. 24. Ed. 3. 42. 17 There is a difference betwéene bailement in felonie and bailement in a personall action The differēce betwéene bailement in felonie and in a personall action for in felonie the bailement shall containe a certaine summe of money to be forfeited if the prisoner doe not appeare at a day prefixed And in a personall action it is but fineable 21. H. 7. 20. And the bailement in felonie is Ad standum rectum de latrocinio praedicto secundum legem consuetudinem regni nostri Angliae as it doth appeare by the writs of Manucaptione in the register which doe imply as much as they that haue him to baile shall not onely cause him to appeare but also to answer 18 If one doe find mainprise in Court it is presently matter of Record Mainprise is matter of Record 8. Ed. 4. 5. though it be not entered into the Roll vntil the next Terme Confession of the Offence WHen a prisoner is appealed or indited of treason or felonie and brought to the barre to be arraigned thereof and his inditement is read vnto him he is asked by the Court what he will say vnto it Then either hée doth confesse the offence and the inditement to bée true or he estrangeth himselfe from the offence and pleadeth Not guiltie An offendour pleadeth one of thrée pleas or else hée doth answer indirectly and so in effect he standeth mute and maketh no answer Of the which later two I will intreate héereafter 2 And therefore beginning with the prisoners Confession of the offence vpon his arraignement That confession may be made in two sorts Confession in two sorts and to two seuerall ends whereof the one is he may confesse the offence whereof he is indited openly in the Court before the Iudge and that he hath committed that act whereof he is indited and arraigned and submit himselfe to the censure and iudgement of the Lawe Which Confession of the offence by the prisoner himselfe in person is the most assured answer and best satisfaction that can be deliuered to the Iudge to condemne the offendour and to all the hearers to giue approbation thereof So that the said Confession do procéede fréely and of his owne good will without menace Confession must be trée and without menace threats rigor or other extreamities For if the Iudge doe perceiue that the offendors confession doth growe vpon either of those extreamities he ought not to record the confession but to cause the prisoner pleade to the offence not guiltie As a woman was indited for the felonious stealing of bread to the value of two shillings 27. As p. 40 and being arraigned thereof she confessed the felonie and saide that she did it by the commaundement of her husband and the Iudges for pitie would not record her confession but caused her to pleade not guiltie to the felonie whereupon a Iurie being charged it was found that she did steale the bread by the compulsion of her husband against her will by which meanes she was discharged And in like sort if the Iudges doe perceiue that the offendour doth confesse the offence in mistaking of the Lawe they may shew him that fauour as not to record his confession but cause him to pleade to the inditement not guiltie As a man being indited of the death of another man pleaded that he and one B. hauing a quarrell 22. As p. 71 and fighting each with the other the party of whose death he was indited came betwéene them to part the fray and he against his will by misfortune gaue him a blowe whereof hée died For though by the Lawe this was felonie in him being fighting and intending to hurt or kill B. yet he did mistake the Lawe therein and did not take it to be so for that his quarrell was not towardes him which he slue but to B. who had no hurt And further this confession of the Offence is not so penall to the prisoner though he doth it fréely and without menace or other extreamitie that he is thereby presently attainted or condemned of that felonie but in many cases he may be saued from death the most bitter rigour of the Lawe by the benefit of his cleargie or by the Kings pardon He that confesseth doth become an Approuer 3 The other kinde of confession of felonie that is made by a prisoner at his arraignement openly in court before the Iudge is when the prisoner doth confesse the inditement to be true and that he hath committed the offence whereof he is indited and then doth become an approuer viz. an accuser of others who haue committed the same offence whereof he is indicted or other offences with him and then doth request the Iudge to haue a Coroner assigned vnto him to whome hée
may make relation of those offences and of the whole circumstances thereof Confession before the Coroner 4 There is also a third kinde of confession made by an offendor in felonie which is not in Court before the Iudge as the other two be but before the Coroner in a church or priuiledged place whereupon the offendor by the antient Lawe of this Realme is to make his abiuration out of the Realme Of which approuing and abiuration I will write in the two next chapters Approuer AN Approuer is a felon that hath committed a felonie Who is an Approuer and after confesseth the same and then doth appeale and accuse others who were helpers or coadiutours with him to commit the same felonie which thing being done he is thereby called an Approuer who in latine is termed Probator for that he must prooue that which is contained in his appeale or accusation And the proofe must be by battell or by the verdict of twelue men at the choice of him who is appealed And if he doe prooue it the kings of this Realme haue vsed to graunt him pardon of his life Britton because he doth fight for the peace of the Realme and doth deliuer the countrie of malefactors for he is to make couenant or promise to the Iudge who will be sutor to obtaine his pardon how many offendors he will conuince and accordingly he is to vanquish them in battell attaint them by verdict or cause them to flée and so by that meanes to become outlawes But yet he shall be banished the Realme Bracton de coron̄ c. 34. and not continue therein An Approuer banished though he would finde pledges for his good abearing 19. H. 6. 47. 12. Ed. 4. 10 Fi. Cor. 231 387. 2 A man imprisoned for felonie may approue of treason if he will Of what offēces approuement may be and in like sort he that is imprisoned for treason may approue of felonie if he wil for when the Iustices doe admit him to approue they doe sweare him vpon a booke to approue of all felonies and treasons that he doth knowe And yet many doe affirme that approuement must be onely of the thing whereof the approuer is indicted Bracton de coron̄ c. 33. 25. Ed. 3. 39 and of none other and of that treason or felonie which he himselfe with others did commit and that approuement of all other offences is voide As if one will appeale an other for robbing of him viz. of the Approuer it is voide Or if one will appeale an other for procuring the saide approuer to commit a felonie Or that where he the saide Approuer had committed a felonie the appellée knowing thereof did feloniously receiue him and comfort him 10. E. 4. 14. 40. Ass p. 39 it is voide because those offences hée could not commit for he could not robbe himselfe nor be accessorie to himselfe Sed de hijs quaere Quaere Séeing the approuer is sworne to approue of all the felonies and treasons that he doth know Approuement in an Indictment and not Appeale 3 A man may approue in an indictment of felonie 11. H. 7. 5. Fi. Cor. 113 but not in an appeale of felonie for if he should approue in an appeale of felonie he should thereby delay the Plaintife in the appeale to haue execution of him And in like sort if one that is indicted of felonie doth become an approuer and after an appeale is sued against him vpon the same indictment Fi. Cor. 442 in this case he shall surcease to procéede any further in his approuement But vpon an indictment of felonie the prisoner which is arraigned may confesse the felonie pray a Coroner and so approue And though some haue thought that if a prisoner be not indicted but doth stand at the barre as one that is to be deliuered by Proclamation if he will refuse the benefit thereof confesse a felonie Fi. Cor. 231 and pray to become an approuer that he shall be thereunto receiued And some others haue béene of opinion that if a man be in prison but for suspition of felony he may confesse the felony before a Coroner and become an approuer But that cannot be by the Lawe for a man cannot be attainted by his confession if he be not indicted or appealed thereof before and it is alwaies requisite for him which shal become an approuer An Approuer must confesse the felonie that his confession be made vpon such matter vpon which the Iudge at all times at his pleasure may giue iudgement to attaint him Before whom one may approue 4 One may become an approuer before those who haue authoritie to assigne him a Coroner as the Iustices of the Kings Bench the Iustices in Eire and the Iustices of gaole deliuerie But so can not Iustices of Peace and therefore a man can not become approuer before them 2. H. 4. 19. 9. H. 4. 1. Neither can a man become an approuer in a Court Baron before the Steward and Sutors Nor in the Countie court before the Shirife and Suitors Nor before any other speciall Iudge vnlesse his Commission doth extend thereunto How an Approuer shall vse himselfe 5 He that will become an approuer must when he is at the barre before the Iudge confesse the felonie whereof he is arraigned and pray that a Coroner may be assigned vnto him to heare his approuement or appeale against others for without confession of the offence whereof he is arraigned Fi. Cor. 441 2. H. 7. 3. 21. Ed. 3. 18 19. H. 6. 47. Fi. Cor. 440 he cannot pray a Coroner No approuement after pleading And this confession must be at the beginning before hée hath pleaded any plea to the contrary therof For if he will pleade not guilty he cannot after waiue that plea and confesse the felonie and pray a Coroner And the reason is because it cannot be intended that hée will proue that which he hath affirmed against others when he hath shewed himselfe so false and vnconstant in his answer before for he is called an Approuer viz. Probator to the intent that he shall prooue that which he alleadgeth against others whereof there is small hope to be conceiued when in the beginning he hath made a lie of himselfe for if he will haue his approuement allowed for good An Approuer must tell truth he must alwaies be found to speake trueth without any lying And when the Court doth perceiue that he hath made a lie 25. Ed. 3. 42 they presently take his approuement from him and giue iudgement that he shall be hanged As an approuer did appeale diuers and the Shirife and Coroners did testifie that there were none such in that countie and without further inquirie the approuer was adiudged to be hanged And if vpon the appeale of an approuer 21. H. 6. 34 processe be awarded against those which he doth appeale and the Shirife returneth non sunt inuenti
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
and Terminer Nisi prius for the defendant in appeale 4 Although by the common Lawe a Nisi prius is grantable for the king but not grantable against the king where he is partie to the suite or where the matter in question doth touch the kings right or where he is party thereunto but by aide praier vnlesse his Atturney will assent thereunto yet in an appeale of felonie when the appellant and appellee be at issue the Defendant may haue a Nisi prius to pursue the same issue 21. H. 7. 34 if there be any default in the Plaintife that he doth not pursue it with effect though the K. be in a sort party to that suite for otherwise the appellée should continually remaine in prison to his vtter vndoing and neuer haue remedy Neither the Defendant in an appeale shall not haue a Venire facias with a prouiso 14. H. 7. 7. 15 H. 7. 9 21. H. 6. 36 vntill hée hath assigned some default in the Plaintife in the pursute of it And yet the Plaintife may at his pleasure stay the Defendant in procéeding further with his processe in praying a Tales vpon the Defendants processe Remaunding of prisoners out of the K. Bench to be tried in the Countrie 5 Because diuers felons and murderers vpon vntrue surmises did oftentimes remooue as well their bodies as their Indictments by Writte and otherwise before the King in his Bench and could not by the order of the Lawe be remaunded and sent downe to the Iustices of Gaole deliuerie or of the peace nor other Iustices or Commissioners to proceede vpon them after the due course of the common lawe for that a Record which is once remoued into an higher Court can not by the common Lawe be sent backe to a more base and inferiour Court For the redresse whereof by a statute made An̄ 6. H. 8. it was ordained St. 6. H. 8. 6 That the Iustices of the K. Bench for the time being haue authoritie by their discretions to remaund and send downe as well the bodies of all felons and murderers brought and remoued or that shall be remoued or brought before the king in his Bench as their indictments into the counties whereas the same murders or felonies haue béen committed or done and to commaund all Iustices of Gaole deliuery Iustices of Peace and other Iustices and Commissioners and euery of them to procéed and determine vpon all the foresaid bodies and indictments so remoued after the course of the common law in such maner as the same Iustices of gaole deliuerie Iustices of peace and other Commissioners or any of them might or should haue done if the said prisoners or indictmēts had neuer bin brought into the said K. bench St. 4. Iac. 1. 6 By a stat made Anno 4. Iac. it was enacted Triall of felonies committed by English men in Scotland That all offences of coniurations witchcraft dealing with euill and wicked spirits murder manslaughter felonious burning of houses and corne burglary robbing of houses by day robberie theft the detestable vice of buggerie committed with mankind or beast and rape heretofore done and committed since his Maiesties comming to the crown of England or hereafter to be done or committed by any his Maiesties naturall borne subiects of this realme of England or the dominions of the same within the realme of Scotland or the dominions thereof and the accessories of and to the same shal be from henceforth inquired of heard and determined before his Maiesties Iust of Assise or his Commissioners of Oyer and Terminer or Gaole deliuery being naturall borne subiects within this realme of England and none other by good and lawfull men of the Counties of Cumberland Northumberland Westmerland or any of the said counties at the election of the said Iust of Assises or Commissioners in like maner and forme to all intents and purposes the alterations hereafter in this Act expressed only excepted as if such offences had béene done and committed within the same Shire where they shal be so inquired of heard and determined as is aforesaid At which trials for the better discouerie of the truth Witnesses allowed to him that is arraigned and for the better information of the consciences of the Iurie and Iustices there shall bée allowed vnto the party so arraigned the benefit of such witnesses only to be examined vpon othe that can be produced for his better cléering and iustification as hereafter in this Act are permitted and allowed St. 4. Iac. 1. 7 Euery Iustice of peace of the counties aforesaid The prosecutors and witnesses bound to giue euidence vnto whom complaint shal be made shall haue full power and authoritie by vertue of this Act to bind ouer by recognisance in a conuenient summe taken to his Maiesties vse as well the partie prosecuting as any witnesses which he shall desire to produce so as the said witnesses may haue their reasonable charges first tendred vnto them to prosecute and giue in euidence before such his Maiesties Iustices as aforesaid as the case shall require St. 4. Iac. 1. 8 Euery commander procurer counsellor abettor comforter receiuer The accessory tryed though the principall be not or other accessorie of or to any the offendors or offences aforesaid so committed in Scotland as aforesaid offending within the realms of England or Scotland shal be produced withall indicted tried iudged and executed without delay notwithstanding the principals or any of them be not conuicted or attainted And that no such offendor either accessorie or principall shall be allowed the benefit of his clergy No clergie No peremptorie challenge aboue v. The words of the Indictment nor admitted to his peremptory chalenge of aboue the number of fiue And that euery indictment of any of the offences aforesaid so committed as aforesaid shal be adiudged of as good force in law notwithstanding the words contra pacem coronam dignitatem nostras be omitted as if the said words had béen therein contained Euery Iuror must haue v. l. of fréehold 9 No Sherife Vndersherife or other Minister to whom it appertaineth St. 4. Iac. 1. shall returne any Iuror to enquire of or try any of the offences aforesaid so committed as aforesaid except euery such Iuror shall haue fréehold in possession to the value of v. l. by the yeare in the county where such inquirie and triall shall be vpon pain to forf for euery Iuror that shal be returned contrary to this Act the summe of xl l. to the K. and I. to be recouered by A. of debt B. P. or I. in any of the K. courts at West wherein no E.P. or W. c. And the offendor shall or may challenge any Iuror that shall passe vpon his life for want of such fréehold as aforesaid The offendor shall forf no lands 10 No naturall subiect of his Maiestie of the realme of England St. 4. Iac. 1. or of the dominions
1. H. 5. 10 Fit Chall ' 105. 38. Ass p. 22 doe challenge any of the Polles hee must shewe the cause vpon his Challenge which must be presently tried for that it is in a plea of the crowne wherein the king is a party 6 A man outlawed of Felonie An Outlaw of Felony shall haue his challenges vpon an Issue taken for the auoidance of the Felony Fi. Chall ' 153. 165. For though hée cannot challenge a worse man then himselfe béeing outlawed for Felony yet séeing it is in Issue to trie whether hee bee an Outlaw or not and by this tryall if it bée found for him to defeat the same Outlawry that opinion of him ought to bee holden in suspence vntill the said issue shall be tried against him 21. H. 6. 30. 14. H. 4. 19. 7 It is a good Challenge vpon cause to say that one of the Iurors is an Alien or a Villaine or an Outlaw A Iuror an alien villaine or outlaw for then hée is not Liber legalis homo For though an Alien borne hath dwelt in this Realme from his childhood and be sworne in a Léet or other Court to the Kings obedience yet he is not the Kings liege man for the Steward of a Léet nor any other can make an Alien Legalis homo but onely the King ⧠Euidence 1 WHen a prisoner is indicted of Treason or Felony hath pleaded not guilty is therupon arraigned and finished his challenges then euidence is to be giuen against him to proue him guilty which euery person shall bée admitted to doe for the king And because the euidence of those that tooke the said offendor with the manner did first accuse him or brought him before the Iustices of Peace to be examined of the supposed offence hath béene alwaies adiudged most pregnant and effectuall Therefore by a statute made Anno 1. 2. Ph. Ma. St. 1. 2. P. M. 13. it was ordayned That two Iustices of Peace at the least Euidence against an offeÌ„dor let to batle wherof one of them to be of the Quorum when any prisoner is brought before them for any manslaughter or felony before any bailement or mainprise shall take the examination of the said prisoner and information of them that bring him of the fact and circumstances thereof and the same or as much thereof as shal be materiall to proue the felony shall put in writing before they make the same bailement which said examination together with the said bailement the said Iustices shall certifie at the next generall Gaole deliuerie to bée holden within their Commission and that euery Coroner vpon any inquisition before him found whereby any person or persons shall bée indicted for murther or manslaughter or as accessorie or accessories to the same before the murther or manslaughter committed shall put in writing the effect of the euidence giuen to the Iury before him béeing materiall And as well the said Iustices as the said Coroner shall haue authority by this act to bind all such by Recognisance or Obligation as doe declare any thing materiall to proue the said murther or manslaughter offences or felonies or to bée accessories or accessories to the same as is aforesaid to appeare at the next generall Gaole deliuerie to bée holden within the County City or Towne corporat where the tryall thereof shall bée then and there to giue euidence against the party so indicted at the time of his triall and shall certifie as well the same euidence as such bond and bonds in writing as hée shall take together with the Inquisition or Indictment before him taken and found or before the time of his sayd tryall thereof to bée had or made And likewise the said Iustices shall certifie all and euery such bond taken before them in like manner as is before said of baylements and examination And in case any Iustice of peace or Quorum or Coroner shall offend in any thing contrary to the true intent and meaning of this act then the Iustices of Gaole deliuery of the Shire City Towne or Place where such offences shal happen to be committed vpon due proofe thereof by examination before them shall for euery such offence set such fine on euery such Iustice of Peace and Coroner as the same Iustices of Gaole deliuery shall thinke méet and shall estreat the same as other Fines and Amerciaments assessed before Iustices of Gaole deliuery ought to bee S. Mainprise 13. 2 Because the foresaid statute of 1. 2. Ph. Ma. 13. doth not extend to any such prisoners as shall be brought before any Iustice of Peace for Manslaughter or Felony and by such Iustice shall be committed to ward for the suspition of such Manslaughter or Felony and not bayled in which case the examination of such prisoner and of such as shall bring him is as necessary or rather more then where such prisoner shall be let to bayle For the reformation whereof St. 1. 2. P. M. 10. by a statute made Anno 2. 3. Ph. Ma. it was enacted That such Iusticâ—s or Iustice before whom any person shall bée brought Euidence against an offendor coÌ„mitted to prison for Manslaughter or Felony or for suspition thereof before he or they shall commit or send such prisoner to ward shall take the examination of such prisoner and information of those that bring him of the fact and circumstances thereof and the same or as much thereof as shall be materiall to prooue the Felony shall put in writing within two dayes after the said examination and the same shall certifie in such manner and forme and at such time as they should and ought to doe if such prisoner so committed or sent to ward had béene bayled or let to mainprise vpon such paine as in the said former act is limitted and appointed for not taking or not certifying such examinations as in the said former act is expressed And the said Iustices shall haue authority by this act to bind all such by Recognisance or Obligation as doe declare any thing materiall to proue the said Manslaughter or Felony against such prisoner as shall bee so committed to ward to appeare at the next generall Gaole deliuery to be holden within the County City or Towne corporat where the triall of the said Manslaughter or Felony shall be then and there to giue Euidence against the party And the said Iustices shall certifie the sayd bands taken before them in like manner as they should and ought to certifie the bands mentioned in the said former act vpon the paine as in the said former act is mentioned for not certifying such bands as by the said former act is limitted and appointed to be certified 3 And for that men should be the readier and more willing to giue Euidence against Robbers and other Felons Restitution vpon attainder by euideÌ„ce by a statute made Anno 21. H. 8. St. 21. H. 8. 11 it
offēce made felony by the foresaid act of ann̄ 3. H. 7. or which shal be indicted arraigned of or for any such offence stand mute or make no direct answere or challenge peremptorily aboue the number of xx shal in euery such case loose his and their benefit of Clergy Prouided alwaies that this act shal not extend to take away the benefit of Clergy but onely from such person and persons as hereafter shall be principals or procurers or accessaries before such offence cōmitted S. Felonies by Stat. 5. 17 By the statute of An. 1. Iac. St. 1. Iac. 12 it is enacted Coniuration Witchcraft That if any person or persons shal vse practise or exercise any inuocation or coniuration of any euil wicked spirit or shall consult couenant with entertaine imploy féede or reward any euill wicked spirit to or for any intent or purpose or take vp any dead man woman or child out of his her or their graue or any other place where the dead body resteth or the skin bone or any other part of any dead person to be imploied or vsed in any maner of Witchcraft Sorcerie Charme or Inchantment or shall vse practise or exercise any Witchcraft Inchantment Charme or Sorcerie whereby any person shall be killed destroyed wasted consumed pined or lamed in his or her body or any part thereof then euery such offendor or offendors their aidors abettors and councellors being of any the said offences duly and lawfully conuicted and attainted shall suffer pains of death as a felon or felons and shall loose the priuiledge and benefit of Clergy Sanctuary and if any person or persons shall take vpon him or thē by Witchcraft Inchantmēt Charme or Sorcery to tell or declare in what place any treasure of gold or siluer should or might be found or had in the earth Telling where things lost may be found or other secret places or where goods lost or stolne should be found or become or to the intent to prouoke any person to vnlawfull loue Prouoking to loue or whereby any goods or cattels of any person shal be destroyed wasted or impaired or to hurt or destroy any person in his or her body although the same be not effected and done and béeing once conuicted of the same offences Destroying of men or cattell as is aforesaid do eftsoones perpetrate and commit the like offence then euery such offendor being of any the said offences the second time lawfully and duly conuicted and attainted shall suffer pains of death as a felon and shall loose the benefit and priuiledge of clergy and sanctuarie S. Felonies by Stat. 29. 18 By the statute of Anno 1. Iac. St. 1. Iac. 8 S. Murther 24. it is enacted That if any person or persons shall stabbe or thrust Stabbing or thrusting any person or persons that hath not then any weapon drawne or that hath not then first stricken the party which shall so stabbe or thrust so as the person or persons so stabbed or thrust shall therof die within the space of sixe moneths then next following although it cannot be proued that the same was done of mallice forethought yet the party so offending and béeing thereof conuict by verdict of twelue men confession or otherwise according to the Lawes of this Realme shal be excluded from the benefit of his or their Clergy and shall suffer death as in case of wilfull murther S. Homicide 24. A Recusant not abiuring or returning 19 If any such offendor which by the tenor and effect of the act made Ann̄ 35. Eliz. St. 35. El. 1. intituled an act to retaine the Quéenes Subiects in due obedience is to be abiured the Realme shall refuse to make such abiuration as by that statute is appointed Or after such abiuration shall not goe to such Hauen and within such time as is appointed and from thence depart the Realme according to the said statute Or after his departure shall returne againe into any of the kings Realmes or Dominions without his speciall licence in that behalfe first had and obtained then in euery such case the person so offending shal be adiudged a felon and suffer as in case of felony without benefit of clergy S. Felonies by Stat. 9. Abiuration of a Popish Recusant 20 If any such offendor which by the tenor and intent of the act made Ann̄ 35. Eliz. St. 35. El. 2. intituled an act for the restraining of Popish Recusants to some place of abode is to be abiured the Realme shall refuse to make such abiuration Or after such abiuration made shall not goe to such hauen and within such time as is appointed and from thence depart out of this Realme according to the said act Or after such departure shall returne and come againe into any of the kings Dominions without his speciall licence in that behalfe first obtained and had then in euery such case the person so offending shall be adiudged a felon and loose as in case of felony without benefit of Clergy S. Felonies by Stat. 11. A Souldier departing frō his captaine 21 By the statute of Ann̄ 18. H. 6. St. 18. H. 6. 10. it is enacted That if any souldier man of Armes or Archer which hath taken parcell of his wages of his Captaine and is entred of record the kings souldier except notorious sicknes or impediment by Gods visitation doth let which he shall imediately certifie his captaine and repaie his money or els being in the enemies countrie in garrison or els where in the kings seruice where he is appointed to serue doth depart without licence of the kings lieutenant deputie high admirall viceadmirall captaine or in their absence of their deputies he shal be taken iudged and executed as a felon And by the Stat. of Anno 2. 3. Ed. 6. St. 2. 3. Ed. 6. 2. he shal not haue aduantage of his Clergie or sanctuarie S. Felon by Stat. 21. St. 39. El. 17 22 By the Stat. of An. 39. El. it is ordained That if any idle and wandring Souldier or Mariner Wandering souldiers and mariners doe not settle himselfe to labour seruice or other lawfull course of life without wandring or otherwise repaire to the place where he was born or to his dwelling place and there remain betaking himselfe to some lawfull trade or course of life Or comming from his Captaine shall not haue a testimonial of a Iustice of peace c. or shal counterfeit or forge such testimoniall or haue with him any such testimoniall forged knowing the same to be forged being retained into seruice or shall depart within the yeare without the licence of him that retained him into seruice Then he shal be iudged as a felon without the benefit of clergie S. Fel. by Stat. 3. 23 By the Stat. of An. 43. El. St. 43. Eli. 13 it is established Taking away any person against his will in Cumberland c. That whosoeuer shal
4. H. 7. St. 4. H. 7. 13 for by the common law if a man had once enioyed the benefit of his Clergie for felonie and after committed felonie againe yet he should haue had the priuiledge of his Clergie againe and so often as hée had committed felony vntil the said statute did restraine him by these words viz. Where vpon trust of the priuiledge of the church diuers persons haue bin the more bold to commit murder rape robberie theft and all other mischiuous déeds because they haue béen continually admitted to the benefit of their clergie as oft as they did offend in any of the premisses In auoidance of such presumptuous boldnesse it is ordained That euerie person not being within orders which once hath bin admitted to the benefit of his Clergie eftsoones arraigned of any such offences be not admitted to haue the benefit or priuiledge of his clergy and that euery such person so conuicted for murder How the conuict shal be marked to be marked with an M. vpon the brawne of the left thumb if it be for felony the same person to be marked with a T. in the same place of the thumb these markes to be made by the gaoler openly in the court before the Iudge before such person be deliuered to the Ordinarie Prouided alwayes if any person at the second time of asking his clergie because hee is within orders hath not there ready his letters of his orders or a certificat of his Ordinarie witnessing the same that then the Iustices before whom hee is so arraigned shall giue him a day by their discretion to bring in his said letters or certificat And if he faile and bring not in at such a day his said letters nor certificat then the same person to loose the benefit of his clergie as he shall doe that is without orders By which stat it doth appeare that he that is within orders is excepted and that he may haue his clergie the second time vpon the shewing of his letters of orders or his Ordinaries certificat of the same this statute notwithstanding But after by the statute made Anno 28. H. 8. 32. H. 8. St. 28. H. 8. 1 32. H. 8. 3 it was enacted How offendors that be within orders shal be vsed That all such persons as be or shall be within holy orders which by the lawes of this Realme ought or may haue their clergie for any felonies and shal be admitted to the same shal be burned in the hand in like maner and forme as lay Clerkes béene accustomed in such cases and shall suffer and incurre after all such paines damages and forfeitures and bee ordered and vsed for their offences of felony to all intents and purposes as lay persons admitted to their clergie be or ought to be ordered and vsed by the lawes and statutes of this Realme Any lawes statutes prouisions customes c. notwithstanding The force and effect of part of which said statutes of 28. H. 8. 32. H. 8. is in some sort attenuated by a braunch of the stat of Anno 1. Ed. 6. St. 1. E. 6. 12 S. Br. 24. as some do conceiue it which doth ordaine That in all other cases sauing such as be mentioned in the sayd Act all and singular person persons which shall be arraigned or found guiltie vpon his or their arraignement or should confesse the same or stand mute or would not answer directly should haue and enioy the priuiledge and benefit of his and their clergie the libertie and priuiledge of Sanctuarie in like manner and forme as he or they might or should haue done before the foure and twentieth day of Aprill Anno 1. H. 8. at which time a man within orders should haue had the priuiledge of his clergie seuerall times And by this Statute he shall not be burned in the hand as a lay man shall But yet in all those cases wherein a man is put out of his Clergie by the Statute of Anno 1. Ed. 6. and also in all other cases wherein Clergie is taken away by any Statute made sithence Anno primo Edw. 6. a man within orders is as well put out of his Clergie as a lay man euery of those Statutes being generall and without exception 42 Because diuers persons haue béene in times past indicted arraigned and some of them Clerkes conuict and some of them Clerkes attainted and some of them outlawed for Murder Burglarie Robberie and other Felonies before Iustices of Peace Iustices of Gaole deliuerie and Iustices of Oyer and Terminer within diuers Cities Counties Franchises and Liberties within this Realme The records of which attainders outlawries and conuictions many times by the negligence of the Clerke of the Crowne Clerke of the Peace Clerke of Assise and such other as haue had the order rule kéeping and gouernance of the same Records haue béene imbeciled and not readie to be obiected against such persons as haue béen newly arraigned before the King in his Bench or before other the Kings Iustices for the like and such other offences by them committed or done And for that it hath not béene knowne certainely whither to resort for the same Records because they were not certified into any place certaine by reason whereof sometimes such persons and like offendors which haue béene newly arraigned as is aforesayd haue had the benefit of his or their Clergie where they ought not ne should haue had the same if the said Records had béene then present in the same place where such person or persons were so newly arraigned or else certified into some other place certaine where the same Records might haue bin séen sent for or written for to haue béene obiected against such person or persons so newly arraigned whereby as well the King as also all other persons haue many times lost their Escheats and other aduantages and forfeitures that they should haue had by meane of the sayd attainders to the great losses of the King and other persons and also the sayd offendors haue had their Clergie where they ought not to haue had to the great boldnesse and encouragement of like offendors For the reformation whereof by a Statute made Anno 34. 35. H. 8. St. 34. 35. H. 8. 14. it was enacted That the Clerke of the Crowne Certificat into the K. bench of outlawries attainders conuictions Clerke of the Peace and Clerkes of Assise for the time being where any such attainder outlawrie or conuiction shall so bée had shall not onely certifie a Transcript briefly and in few words containing the tenor and effect of euerie such indictment outlawrie or conuiction and Clerke attainted before them so to be had made or pronounced that is to say the name sirname and addition of euerie such person and persons as shall be so indicted and thereupon outlawed conuicted or Clerke attainted and the certaintie of the sayd felonie or other offence whereupon he or they shal be so outlawed
conuicted or Clerke attainted and the day and place of his outlawrie conuiction and attainder and the day and place where and when the said felony or other offence whereupon the said person or persons shal be so indicted outlawed or Clerke attainted shall be made and done before the K. in his bench at West in the county of Midd. there to remaine of record for euer among other the K. records there within xl daies next after any such attainder conuiction or outlawrie shall be had made or procured if the terme be thē if not within xx dayes next after the beginning of the terme next following the said xl daies but also shall deliuer a transcript of euerie such indictment whereupon the said person persons shal fortune hereafter so to be conuicted or Clerkes attainted to the Ordinary to whom the body of the said person or persons shall be committed at the time that the sayd person or persons shall bee committed the sayd Ordinarie paying to euerie such Clerke as shall write the sayd Transcript for euerie copie of such indictment twelue pence for his paines vpon paine that euery Clerke of the Crowne Clerke of the peace and Clerke of Assise for the time being before whom such Indictment Attainder Outlary or Conuiction shal be so had made pronounced or remaine for the non-certifying of euery such record and deliuering of the copy of such Indictment to the said Ordinaries according to this statute to loose and forfeit forty shillings the one moity thereof to be to the king and the other moity to him that will sue for the same by action of Debt Bill Information or otherwise in any of the kings Courts of Record wherein no Wager of Law Essoine or Protection shal be allowed and the clerke of the Crowne in the kings Bench shall receiue the said certificats and transcripts at such time as they shall be tendered and profered vnto them by the said clerkes of the Crowne clerkes of the peace and clerkes of assise or by their deputy or deputies without taking any thing for the same vpon paine of forfeiture of forty shillings for euery such certificat by him refused Prouided alwaies that if there be any more persons contained and named in any such Indictment other then such person so attainted conuicted or outlawed that then such clerke of the crowne clerke of assise or clerke of peace with whom the record of such attainder outlary or conuiction shall remaine shall within the time before in this act limitted certifie the transcript of such indictment outlarie or conuiction onely concerning such person or persons so indicted and attainted outlawed or conuicted into the kings Bench at Westminster as is aforesaid which transcript so certified shall be had and taken as good effectuall and auaileable in the Law to all intents and purposes against such person and persons against whom it shall be so obiected alledged or pleaded as if the very record thereof whereupon he or they were so indicted were there present And be it enacted c. That the said clerke of the crowne in the kings Bench for the time being shall at all such times as the Iustices of Gaole Deliuerie or Iustices of Peace in euery County within this Realme of England doe write vnto him for the names of such persons which be so attainted by Outlarie or clerkes attainted or conuicted and certified into the said Bench shall incontinently without delay certifie the said names and surnames of the said persons with the causes why and wherefore they were conuict or attainted vnto the Iustices of Gaole deliuery or Iustices of Peace vpon paine and penalty to forfeit for euery name of such persons which shall be so written for and not certified by the said Clerk of the Crowne in the Kings Bench to the said Iustices fortie shillings Prouided that this Act nor any thing therein contained shall not extend to the Clerkes of the Crowne Clerkes of the Peace Clerkes of Gaole deliuerie neither to any of the Prenotaries within the Counties of Wales and Chester or within the Counties Palantine of Lancaster and Duresme or any of them to make any transcript of any such attainder conuiction or outlawrie of any person or persons conuicted attainted or outlawed before the Kings Iustices of his Counties of Wales nor Chester or Countie of Lancaster Duresme or any of them but that the same Records shall and may remaine and be in the custodie and kéeping of the sayd Clerkes and Prenotaries in such maner and wise as they are at this day this Act or any thing therein contained to the contrarie notwithstanding 43 Though the deliuering of him to the Ordinarie who hath the benefit of his Clergie and making of purgation bée taken away the Statute of 18. Eliz. 6. yet because both deliuering to the Ordinarie and making of purgation were vsed by the space of many generations in this realme and seuerall lawes statutes and some prouinciall councells were made and ordained touching the ordering direction and gouernance of those which as Clerks conuict or attaint were committed to the Ordinary and were to make purgation or not I will therefore briefly set downe the effect of some of those laws as antiquitie did retaine them He which had the priuiledge of his Clergie and was deliuered to the Ordinarie that did demaund him was not set at libertie to goe wandring vp and downe the Countrie but was safely and straitly kept in the Bishoppes prison In what sort a clerke deliuered to the Ordinarie was vsed hauing for foode vppon the Sonday bread ale and pease and vpon all the other daies courser bread and small drinke once in the day onely or in the Kings prison if the Bishop would haue it so vntill hée had purged himselfe of the crime wherewith hée was charged or otherwise had failed of his purgation and could not make it And if the Bishop would not admitte him to make his purgation then the King would direct his Writte to the Bishoppe commaunding him to suffer the same prisoner to make his purgation 15. H. 7. 19. or the King at his pleasure might pardon the prisoner or cause him to be set at libertie without making any purgation And when a Clerke was to make his purgation the King was to be made priuie thereunto who did direct his Writ to the Shirife of the countie where the offendor was prisoner commaunding him to make proclamation through his Countie that if any man could shew cause why such an offendor viz. A. B. prisoner in the Kings or Bishoppes prison should not make his purgation that then he should appeare such a day and in such a place and shew the same cause And in London the Preacher at Paules Crosse did likewise notifie that A. B. The manner of making purgation prisoner in such a prison was to make his purgation in such a Diocesse at such a place vpon such a day at which day assigned whether any crime or not to giue
of treason or felonie which graunting of Pardon is one of the most ancient and honourable prerogatiues that is annexed to the Imperiall Crowne of this Realme being an authoritie in a sort to reuiue a dead man and to continue him in life whom the Lawe adiudged to die And it is only granted vpon a good hope that the king hath of the amendment of the life of that subiect who hath offended his lawes and whose crime his owne conscience doth assure him that he may pardon notwithstanding his othe taken at his coronation which othe is that he will to the vttermost of his power cause equall and right iustice to be done in all iudgements and discretion in mercy and truth for as Bracton Bracton saith The King at his coronation The Kings oath at his coronation by an oathe taken in the name of Iesus Christ the sonne of God ought to promise his subiects thrée things The first that he will commaund and doe his whole indeuour during his raigne that true peace may be performed to the Church of God and all his people The second that he will by all meanes restraine euery kind of rapine and oppression The third that in all Iudgements he will commaund iustice and mercie to be obserued that by his mercifull dealing with others the God of mercie may take commiseration vpon him and that by his iustice all his people may enioy peace 2 Because authoritie to remitt and pardon Treasons Murders Manslaughters and other felonies with diuers others of the most ancient prerogatiues and authorities of Iustice appertaining to the imperiall Crowne of this Realme were seuered and taken from the saide Crowne by sundrie gifts of the Kings of this Realme to the great diminution and detriment of the royall estate of the same and to the hindrance and delay of iustifie For reformation whereof by a statute made Anno 27. H. 8. St. 27. H. 8. 25. it was enacted That no person or persons of what estate or degree soeuer they be shall haue anie power or authoritie to pardon or remit any treasons None but the king shal pardon treasons felonies c. murders manslaughters or felonies whatsoeuer they be nor any accessories to any treasons murders manslaughters or felonies or any outlawries for any such offences aforesaid committed done or diuulged by or against any person or persons in any parts of this Realme or Wales or the Marches of the same But that the King his heires and successors kings of this Realme shall haue the whole and sole power and authoritie thereof vnited and knit to the imperiall crowne of this realme as of good right and equitie it appertaineth any graunts vsages Acts of parliament or any other thing to the contrary notwithstanding 3 But because the Kings of this Realme haue not had that circumspection in graunting of pardons which Bracton doth thinke fit and haue béene many times deceiued in their grants by false suggestions and for that offendors in times past were greatly encouraged and lesse feared to offend in respect that pardons of manslaughters robberies felonies and other trespasses against the Peace were so easily graunted For the redresse whereof by a statute made Anno 2. Ed. 3. St. 2. Ed. 3. 2 it was ordained In which cases onely the K. may grant pardon of felonie c. That no such charters should be graunted but where the King may doe it by his oathe that is to say in case where a man doth kill an other in his owne defence or by misfortune which laide Statute was after rehearsed and confirmed by an other Statute made Anno 4. Ed. 3. St. 4. E. 3. 13 And also by another Statute made Anno 14. Ed. 3. St. 14. Ed. 3. 10. the effect of the same was rehearsed and confirmed and it was moreouer ordained That if any charter of pardon were from thenceforth graunted contrarie to the purport of the said Statutes that then the same should be accompted as voide 4 And though there be wordes large enough in the foresaide Statutes to make frustrate all those charters of pardon which be graunted against the forme of the same Statutes Non obstante in a pardon yet by putting into the Charters of pardon these wordes viz. Non obstante aliquo statuto actu ordinatione in contrarium edito the force of those Statutes be cleane taken away and not onely of those but also of all other in which this clause of Non obstante is inserted for it is a dispensation of the Statute and commonly put in euerie Letters patents But because the Kings of this Realme were oft times deceiued in granting of charters of pardon by the false and vntrue suggestion of others Therefore to auoide those abuses by a Statute made Anno 27. Ed. 3. St. 27. E. 3. 2 it was accorded That in euery charter of pardon of felonie The suggestion comprised in the pardon which shall be graunted at the suggestion of any person the suggestion and the name of him that maketh it shall be comprised in the same charter And if after the suggestion be found vntrue the Charter shall be disallowed and accounted nothing worth And the Iustices before whom such Charters shall be alleaged shall enquire of the same suggestions and if they finde them vntrue they shall disallow the Charters and procéede further as the Lawe requireth 5 Because the Commons did complaine in Parliament of the outrages mischiefes and dammages which did come to the Realme by treasons murders rauishments of women commonly done committed and the rather for that charters of pardon were too easily granted thereof and did desire the King that such charters of pardon might no more be granted in those Cases Whereunto the K. did answer that he would yéeld to their petition sauing the prerogatiue and regal authority which his progenitors before that time had And to the intent that the King would be certainely informed before of what offences he did graunt pardon Therefore by a Statute made Anno 13. R. 2. St. 13. R. 1. 1 Stat. 2. the King did graunt with the assent of the Parliament That no Charter of pardon shall be allowed before any Iustice for murder The offences shall be specified in the pardon for the death of a man slaine by awaite assault or malice prepensed treason or rape of a woman vnlesse the same murder death of a man slaine by awaite assault or malice prepensed treason or rape of a woman be specified in the same Charter And if a Charter of the death of a man be alleadged before any Iustice in which Charter it is not specified that hée of whose death any such is arraigned was murdered or slaine by awaite assault or malice prepensed the same Iustices shall enquire by a good Enquest of the visne where the dead was slaine if hée were murdered or slaine by awaite assault or malice prepensed And if they shall find that he was murdered or
Coroners will answer He that hath a pardon shal find sureties for his good abearing that he from thenceforth shall beare himselfe well and lawfully And the maineprises shal be sealed and returned into the chancerie within thrée moneths after the end of the said thrée moneths And if hée which hath such Charter will ayd himselfe thereby and hath not found such mainprises or after such mainprise found doth beare himselfe otherwise against the peace than he ought his charter shal be accounted void of no force The good behauiour broken after a pardon 14 A prisoner that was indited outlawed of felonie 3. H. 7. 7. pleadeth the Kings pardon of the same felonie and outlawrie but shewed no writ of allowance testifying that he had found suretie in the Chauncerie according to the foresaid Statute of 10. Ed. 3. neither did he make mention in his plea that he had fouÌ„d suretie according to that Statute nor yet did he vouch the Record thereof in the Chauncerie therefore the Iustices had no cause to allow of his Charter of pardon And the same offendor after his pardon graunted was indited before the Iustices of peace of the countie where he dwelt that he did beat and wouÌ„d A.B. against the Kings peace and thereof was conuict before the same Iustices of peace by his owne confession which Record of his conuiction was sent into the Kings Bench by the said Iustices of peace and for that he had borne himselfe otherwise than he ought toward the peace his charter of pardon was adnulled he had iudgement of death and was hanged A pardon must agree with the inditement 15 A Charter of pardon ought to agrée with the Indictment in the name surname and addition of the partie to whom the same Charter is graunted to the intent that he may be knowne to be the same person which is indited or otherwise it is not allowable sauing in some speciall cases As 11. H. 4. 3â— in appeale of death where the plaintife was non-suit after declaration and the defendant was arraigned at the Kings suit vpon the declaration whereunto he pleaded the Kings pardon which did not agrée with the appeale in the name of him that was slaine Where a charter may vary from the indictment nor in the day but agréed with the inditement in the death of the selfe same man to the which inditement this pardon had before time bin pleaded and allowed And for that it may well be intended of the same death séeing one man cannot haue two deaths it was allowed notwithstanding the variance Two men were outlawed in appeale of murder 28. 29. H. 8. Dy. 34. and they purchased their pardon and had a Scire facias against the Plaintife in the appeale and also a Scire facias against the Lords mediate or immediate and the pardon did not agrée with the inditement in the additions but the parties tooke an auerment that they were the same parties which were indited and an exception was taken to the pardon for the words of the pardon were Pardonauimus c. W.B. L.B. omnes omnimodas vtlagarias versus praefatos W.B. L. B. seu versus eorum alterum promulgatas which words in the premisses of the pardon be ioynt where they should haue been Pardonauimus c. W.B. L.B. eorum alteri because that euery felonie is seuerall and for these seuerall felonies they should haue had seuerall pardons And yet the pardon was allowed If a man be indited of felonie by the name of A.B. yeoman and after the King doth pardon him by the name of A. B. gentleman esquire 20. H. 7. Kel fol. 58. knight or c. all manner of felonies he may plead this pardon and auerre that A. B. yeoman and A. B. gentleman or c. be one person and this pardon will discharge him for it may be he was a yeoman at the time of the inditement and after made gentleman by the King or by some office 4. E. 4. 10 16 When after non-suit in appeale the Kings pardon is allowed it is vsed to enter the pardon and alowance vpon the bill of appeale The pardon and alowance entred vpon the appeale and thâ—refore if there be any inditement of the same felonie against the defendant it shalbée good for him to cause these words to be entred and indorced vpoÌ„ the indictmeÌ„t viz. Cesset processus faciendus super indictamentum eo quod defendens acquietatus recessit ab Appello 4. Ed. 4. 10 17 All this matter of pardons is in effect to be referred to indictments because the Kings pardon is no plea to the parties appeale A pardon no plea to an appeale for the felon shalbée put to death notwithstanding that But it is a good plea against the King when the appeale is determined And if it be determined by act in law and not by the act of the partie the pardon shall not be allowed without warning of the partie as in appeal the plaintife doth pursue it vntill he hath outlawed the defendant in this case by the Outlawry the appeale is determined and yet if the king doe pardon the defendant the pardon shall not bée allowed vntill hée hath sued a Scire facias against the party at whose suit he was outlawed And if at the day of the Scire facias returned the partie doe appeare the Appellant may pray execution of him notwithstanding the pardon but if the Appellant be returned warned and doth make default the Charter shal be allowed without further suit Co. l. 50. 100 3. El. Dyer 201 261 The Kings pardon of burning in the hand In an appeale of murder the defendant pleaded not guiltie vpon his arraignment and by the enquest was found guiltie of manslaughter and then prayed and had his Clergie Whereupon by force of the Statute of anÌ„ 4. H. 7. 13. St. 4. H. 7. 13 he being a conuict person ought to bée marked by the Gaoler openly in the Court which marking or burning in the hand the king did and may pardon though it be in an appeale for burning in the hand is no part of the iudgement but onely a meane to notifie to the Iudge vpon an offendors second conuiction that he once before had his Clergie vpon a former conuiction And for that it was ordained by the Statute of anÌ„ 18. El. 6. St. 18. El. 6 That after Clergie allowed and burning in the hand the prisoner shall be forthwith enlarged and deliuered out of prison which act doth extend as well to the case of the Appeale as to the case of an Indictment Therefore the King hauing pardon the burning in the hand the partie was also discharged of his imprisonment 2. R. 3. 8 18 A Scire facias vpon a Charter of pardon may be graunted against an appellant Vpon a pardon a Scire facias against an appellant though the appellée which doth pray it sheweth
the prisoner did flye for the Felony in this case the same prisoner shall forfeit those goods which hee had the day of the verdict giuen and not any goods which he had before And so it is if one be conuict by verdict 7. H. 4. 41. the goods shall be forfeited which the offendor had the day of the verdict giuen and not those which he had before And he that is outlawed of Treason or Felony shall forfeit those goods which he hath at the time of the Exigent awarded and not those which he had before and hath aliened But if a man doe commit a Treason or Felony and is arrested thereof and as he is in carrying to a Iustice of Peace to be examined or to the Gaole by the Constables or others doe breake away or in making of rescous or resistance is slaine by those which do so carry him because he will not yéeld and be iustified by the law Fi. Cor. 290 in this case those goods shal be forfeited which he had at the time of the felony committed And so it is if one commit a Felony and when the Shirife Coroner Constable or others do attempt to apprehend him he is slain because he doth resist and will not yeeld to be arrested the goods shal be forfeited which he hath at the time of the felony committed 44 It appeareth by the statute of 3. Ed. 1. St. 3. E. 1. intituled Officium Coronatoris Who shal seise and keepe Felons goods and when That if any person be found guilty before the Coroner of the death of another presently the Coroner shall goe to his house and inquire what cattell hee hath and what corne he hath in his graunge and what on the ground and if he be a Fréeman what land he hath and how much it is worth by the yeare and when they haue so inquired of all things they shall cause the land the corne and cattell to bée priced as if they should be forthwith sold and immediatly they shall be deliuered to the whole Towne to answere for the same before the Iustices And in like sort when it is found before the Coroner that one did flye for a Felony 22. Ass p. 96 the Shirife shall presently seize his lands into the Kings hands by word without Enquest and also shall seize all his goods into the Kings hands and shall appraise them by an Enquest as well of Villaines as of Freemen and the prices shalbée inrolled in the Coroners Roll and deliuered to the Towne to answere to the King for the same for by that which is found before the Coroner the goods bée forfeited without further inquiry 43. E. 3. 24 And so may another Officer of the Kings seize the goods of a Felon before attainder and if the Felon doth find surety the Officer must leaue them in his custody But whether hée doth find surety or not the Officer ought not to carry them away but must leaue them in the custodie of the Felons neighbours For if one bée indicted of Felony his goods shall not be remoued forth of his house vntill he be attainted 7. H. 4. â—1 but shal be kept by his neighbours all the time of his imprisonment and the Felon shal be maintained with them And according thereunto there is a writ in the Register Registrum viz. Quod tenementa bona taliter capta videantur imbreuiantur saluo custodiantur per balliuum ipsius capti qui securitatem Regiinueniet ei respondendi si c. saluis inde ipfi capto familiae suae necessarijs quamdiu fuerit in prisona By which writ it doth appeare and also by the assertions of Bracton and Britton that one which is indicted or imprisoned for Felony shall not bée put out of the possession of his goods vntill he be conuict of Felony but he must haue reasonable maintenance of his goods for him and his family vntill he bée conuict and then that which doth remaine shal be the kings And yet the felon must not disorderly sell or wast his goods and so this difference is to be obserued in seising of a Felons goods viz. where the goods be forfeited before the felony tried and where they be not forfeited vntill the felony tried For if they be forfeited before the felony tried they shal be presently seised vpon the forfeiture of them though there be no conuiction of felony as in the foresaid cases where one is found guilty before the Coroner of the death of another or where it is found before the Coroner that one did flie for a felony But if they be not forfeited vntill the felony tried then they shall not be seised vntill the Felon be conuicted The goods of a prisoner shal not be seised vntill he be attainted 45 And because that diuers persons were often arrested and imprisoned for suspition of Felony sometime of malice and sometime of light suspition and were kept in prison without baile or mainprise and for that sometime shirifes escheators baylifes of Liberties and others did seise and take away the goods of some persons arrested or imprisoned for Felony before the same person was conuict or attainted of the same Felony contrary to the common law Therefore partly to confirme the common law and partly to giue to the party grieued a more ample recompence for his wrong receiued then the coÌ„mon law before did viz. to giue him the double value of his goods so takeÌ„ or seised where the common law gaue him the single value and partly to giue him a speedy remedy to recouer the same there was a stat made AnnÌ„ 1. R. 3. St. 1. R. 3. 3 by the which it is ordained That no Shirife Vndershirife Escheator Baylife of Franchise or other person shall take or seise the goods of any person arrested or imprisoned before the same person or persons so arrested or imprisoned be conuict or attainted of such felony according to the law of England or otherwise that the same goods be in some manner lawfully forfeited vpon paine to loose the double value of the goods so taken to him or them which be endamaged therby by action of Debt in this behalfe to be pursued by like proces iudgement execution as is commonly vsed in other actions of Debt pursued at the common law wherin no wager of law essoine or protection shall be allowed This stat of 1. R. 3. exteÌ„deth only to those that be arrested or imprisoned for notwithstanding this statute the shirife may seise the goods of them which be at liberty and indicted of felony at the second Capias by force of the stat of 25. E. 3. St. 2â— E. 3. 14 as it appeareth Appeales 59. 46 The custody of the goods of those which be conuict of Felony Who shal haue the custody of felons goods forfeited or which be Fugitiues after they be forfeited doth belong to the Towne where the same goods be or where the
Felon both dwell and therefore vpon a fugam fecit presented before the Coroner 22. As p. 96. the goods ought to be seised by the Shirife and praysed by an Enquest and the appraisement must bée inrolled in the Coroners Roll and the goods shal be deliuered to the towne to answere to the king for them Fi. Cor. 366 and though the goods be not deliuered to the towne yet if the goods were in the Felons possession at the time of his conuiction or flying the towne shall answere for them And some do affirme that the shirife and the Dozeners may seize Felons goods into the kings hands and the shirife shall deliuer those goods to the towne to answere to the king at the comming of the Iustices in Eyre But if neither the Shirife nor the Dozeners doe seize the same goods yet the towne shall answere to the king for them at the comming of the Iustices in Eyre For as soone as a fugam fecit is found before the Coroner Fi. Forf 32 the towne shal be presently charged with the goods of him that did flye away And though it be presented before the Iustices that a Felon was deliuered to the shirife with the manoure and with all his goods yet the towne shal be charged with the said Felons goods though the same was found and presented with intent to ease or discharge the same town And in like sort notwithstanding it doth appeare by the Coroners Roll Fi. Cor. 300 that the goods of a Felon were deliuered to one man of the town yet the king shall leuy those goods of the whole towne But when the shirife doth come to leuy those goods of the town by the shirifes consent they may be leuied of him only who had them in custody Fit Co. 181 One that was indicted of Felony appeared at the Exigent and pleaded and was acquit and his goods being forfeited because he did not come in before the Exigent awarded were praised by the Enquest which acquitted him at forty shillings and the same Enquest found what towne was charged with them which said presentment of the Enquest was inrolled and it was adiudged that the same towne may seize the same Felons goods in what place soeuer they can find them And because the towne where the Felons goods be shall answere for them therefore they which doe take into their possession any of the same Felons goods and other goods which do belong vnto the king as Deodands and such like are to be amerced by the Iustices in Eyre if the same goods be not deliuered vnto them by the towne which hath the charge of them for that the same towne hath the custody of them But by a Statute made Anno 31. Ed. 3. St. 31. E. 3. 3 the towne shal be eased of this charge if they can shew what other person hath detained those goods and that they could neuer haue possession of them the words of which statute be If any man or towne be charged in the Exchequer by the Estreats of the Iustices of the goods of Fugitiues and Felons and he will alledge in discharge of himselfe another that is chargeable he shal be heard and right shal be done And therfore if it be found by office before the Escheator that the goods of a man attainted of Felony be in the custody of such a person in this case a Scire facias shal be awarded vpon the same office against the said person to shew if he hath any thing to say why he should not answer those goods But if it be found by the Enquest which did attaint the Felon before Iustices of Gaole deliuery Iustices of Oier and Determiner or Iustices of Peace that any person doth detaine the goods of a Felon attainted the said Iustices cannot award proces thereupon against the party that doth detaine the same goods but they must send their Estreats into the Exchequer and the officers of the exchequer will award proces against the same party to leuy the same goods And yet if he that is presented to detaine the same goods do find himselfe grieued therewith he cannot haue a Trauerse in the Exchequer to that which is found by the Iury because the court of Exchequer hath not the record before thē neither can he trauerse the same before the Iustices of Gaole deliuerie Iustices of Oyer and Determiner or Iustices of peace for that they cannot award a Supersedeas to the Barons of the Exchequer to surcease their Proces But his onely remedie in this case is to procure a Certiorari to remooue the Record into the Kings Bench and there to tender his trauerse and auerrement and to haue a Supersedeas from thence to the Barons of the Exchequer to surcease their Proces And the same law is if the like thing be found by an Enquest in the Kings Bench after they haue deliuered their Records thereof into the Exchequer And a man which was indicted for the taking of goods of one that was attainted of Treason was put to the answer thereof So that sithence the sayd statute of 31. Edw. 3. others haue béene charged with felons goods as well as townes But the Sherife was alwayes charged with the profits of felons fugitiues lands Fi. Cor. 39◠according to the extent thereof The Sherife charged with felons lands and not any towne And so he was charged with goods cōfiscat as where vpō an indictment of felonie Fitz. Cor. 355. 368. the manoure is brought into the Court and the partie indicted doth disclaime therein by this disclaimer the King shall haue the manoure and the Sherife shall be charged therewith And the same manoure shall be praysed by the Enquest that doth trye the felonie and if it be found by the same Iurie that it was impaired by the Constable or any other who had the same in kéeping the Sherife shal be commaunded to leuie so much in value as it was impaired by the said Constable or other And in some cases the Sherife shall be charged with a felons goods Fitz. Cor. 290. 308. and not the towne where the felon did dwel or where his goods remained but that must be by agréement betwéene the said Sherife and the towne To whom the forf of lands for high treason shal accrue 47 In High treason the King shall haue the forfeiture of the offendors lands of whom soeuer they be holden and that by the common law for the offence committed is not to any subiect but to the Soueraigne gouernour himselfe his Crowne and Realme which is an offence of so high a nature that it cannot be recompenced with all that the offendor hath and then it should bée lesse counteruailed if any other should bée partaker with the King therin And the meane Lords shall receiue no losse thereby for they had nothing in the land but a Seigniorie out of it And if they hold ouer of the King by the like seruices then haue they lost
6. 28 for then was not the plaintife lawfully acquit according to the Statute of Westminst 2. Iudgement in conspiracie 12 When any is conuict in a writ of Conspiracie at the suit of the partie the iudgement is none other but that the plaintife shall recouer his damages 43. E. 3. 33. and that the defendants shall bée taken But if one be indicted and conuicted of conspiracie at the Kings suit the iudgement is more grieuous for then the iudgement is That they shall loose their frée law to the intent 27. As p. 59 46. As p. 11. 24. E. 3. 34. that they shall not after that time be put in Iuries or Assises nor otherwise produced as witnesses to testifie truth and if they haue to do in the Kings Court they shall make their Attourney to sue for them and that they shall not approach within twelue miles of the Kings Court and that their lands goods and cattels shall bée seised into the Kings hand and their houses wasted and their wiues and children thrust out of doores and their trées pulled vp by the rootes and their bodies taken and imprisoned And this is tearmed a villainous iudgement because it bringeth villanie and shame to him that receiueth it 13 And because that wicked offence of conspiracie should bee inquired of and punished as well by indictment as by writ there was a Statute made Anno 28. Ed. 1. called Articuli super chartas whereby it was ordayned St. 28. E. 1. That in right of Conspirators false informers and imbracers of Enquests Assises and Iuries the King hath prouided remedie by a Writ out of the Chauncery And from henceforth the King will that his Iustices of the one Bench the other and the Iust assigned to take Assises Inquirie of Conspiracies by Iustices when they come into the countrey to do their office shall make enquiry thereof at any mans plaint without writ Register fo 118. and shall without delay do right to the plaintifes And the Iustices may be commaunded by a writ directed vnto them out of the Chancery to execute the same statute although the statute of it selfe is a sufficient warrant and authoritie for them so to doe which remedie mentioned in the foresaid statute was intended to be ordained by another statute called the statute of Conspirators St. 20. E. 1. made Anno 20. Edw. 1. at Berwike vpon Tweed which doth prouide a writ of Conspiracie against conspirators maintainers of false quarels and champertors and expresseth the forme of that writ St. 28. Ed. 1 14 But because the foresayd Statute of Articuli super chartas did prouide onely a remedie at the plaint of the partie and did not giue the Iustices in the sayd Statute mentioned power to enquire of heare and determine conspiracies at the suit of the King neither did it giue authoritie to the said Iustices to adiourne the suit if for shortnesse of time it could not be determined in the countrey St. 4. E. 3. 11. Therefore by a statute made Anno 4. Edw. 3. Inquirie of conspirators at K. or parties suit the same enormities were redressed by these words viz. Where in times past diuers people of the Realme as well great as other haue made alliances confederacies and conspiracies to maintaine parties pleas and quarels whereby diuers haue béene wrongfully disherited and some ransomed and destroyed and some for feare beeing maymed and beaten durst not sue for their right nor complaine nor the Iurors of Enquests giue their verdicts to the great hurt of the people and slaunder of the Law and common right Therefore it is agréed that the Iustices of the one Bench and of the other and the Iustices assigned to take Assises whensoeuer they come to hold their Sessions to take Enquests vpon Nisi prius shall enquire heare and determine as well at the Kings suit as at the suit of the partie of such maintainers bearers and conspirators and also of champertors and of all other things contained in the sayd Article as well as Iustices in Eire should doe if they were in the same Countie And that which cannot be determined before the Iustices of the one Bench or of the other vpon the Nisi prius for shortnesse of time shall be adiourned into the places whereof they be Iustices and there shall be determined according to right and reason 15 Notwithstanding the foresaid Statutes there were such deuises and practises to execute malice and reuenge and desire to put others in perill of their liues lands and goods that some would frame indictments or appeales against others of the K. good and obedient subiects of Treason Felony or trespas in seuerall forrein counties liberties and franchises where the said persons did neuer dwel nor conuerse and there they were pursued to the Exigent and sometime outlawed before that they could know of it For the remedie whereof there was a stat St. 8. H. 6. 10 made Anno 8. H. 6. wherein amongst other things it was enacted That if any person shall be indicted or appealed of felony Procurers of an indictment or appeale in a forrein county treason or trespas in a forein county he shal in an action vpon the case recouer treble damages against euery procurer of such indictment or appeale after hee is duly acquited by verdict And the like proces shal be in the same as in an action of Trespas vi armis S. Appeales 61. An offence supposed to be in a place where there is none such 16 Because diuers people vpon malice enuie and desire of reuenge did ofttime cause the K. liege people to be appealed or indicted in diuers counties of Treasons or Felonies supposing by the said appeals or indictments that the said Treasons or Felonies were committed in one certaine place whereas there is no such place within the said county where the said indictmēt is found nor any such place in the county as is declared by the said Appeale Therefore by the stat made anno 7. H. 5. anno 9. H. 5. anno 18. H. 6. it was ordained St. 9. H. 5. 1. St. 18. H. 6. 12. That the said Appeals and indictments and the proces thereupon shal be void and adiudged of no force And that the said Appellées and Indictées may haue their writs of Conspiracie against their indictors procurors and conspirators and recouer their damages And that the indictors procurors and conspirators shal be punished by imprisonment fine and ransome for the K. aduantage by the Iustices discretion ⧠The Coroner and his Authoritie and dutie in Felonies c. 1 A Coroner is an antient officer of trust in this realm The Coroners Office ordained to be a principall preseruer and kéeper of the peace to make record of the pleas of the Crown and of his owne view and of abiurations and of outlawries and of Appeales and accusations of felons made before him and of nonsuits of plaintifes in Appeales and of all
enquire vpon the view of any person slaine drowned or otherwise dead by misaduenture the sayd Coroner shall diligently doe his Office vpon the view of the bodie of euerie such person or persons without any thing taking therefore vpon paine to euerie Coroner that will not endeuour himselfe to doe his Office as is aforesaid or that hee taketh any thing of any person for doing of his Office vpon euery person dead by misaduenture for euerie time fortie shillings And the Iustices of Assises and Iustices of Peace within the countrey where such default of Coroners be haue authoritie to enquire thereof and to determine the same as well by examination as by presentment But by a statute made Anno 3. H. 7. it was prouided St. 3. H. 7. 1. That a Coroner shall haue for his fée vpon euerie Inquisition taken vpon the view of a bodie murdered or otherwise slaine iij. s̄ iiij d. of the goods and cattels of the murderer if he haue any and if he haue no goods the Coroner shall haue his fee of such amerciaments as any towneship shall be amerced for escape of any such murderer And though by the common law the Coroner hath a fee Fitz. Cor. 321. 372. a penie of euerie Visinage as appendant to his Office at the comming of the Iustices in Eire yet that fee is not repugnant to the foresayd statute of Westminst 1. for hee taketh not that to execute his Office but as a fee of right incident to his office though he do nothing in the execution of the said Office St. 3. Ed. 1. Bracton de Corona cap. 5. 7 It appeareth both by the stat intituled Officium Coronatoris Of what things Coroners shall inquire and by Bracton that if any Coroners be aduertised by the K. Bailifes or other honest men of the countrey to come to those that be slaine sodainly dead or wounded or to house breakers or to any place where treasure is found they shall immediatly come and forthwith commaund foure fiue or sixe of the next townes that they appeare before them in such a place and when they come the Coroners vpon their othe shall inquire Murder if they did know of that man that was killed where he was first slaine whether in the field or in the house bed Tauerne or in any companie and who were there Inquirie of the offendors Likewise they shal inquire who were culpable either of the act or force and who were present either men or women and of what age they be so they can speak and haue discretion And they which be found guiltie by inquisition in the foresaid maner shal be taken deliuered to the Sherif and committed to the gaole and as many of them as be not found guiltie shal be attached vntil the comming of the Iustices and their names inrolled A man found slaine And if any man be sodainly slain and found in the fields or woods it is to be considered whether he were slaine there or not if hée were brought thither their steps that brought him if it may be shall bee followed and so shall the tracke of horse and cart And also it shall be inquired if he that was slaine were knowne or vnknowne and where he lodged the night before And if any be found guiltie of the death of such immediatly the Coroners shal come to his house and inquire what cattell he hath and what corne in his graunge and what on the ground and if he be a frée man what frée land hée hath and what it is worth by the yeare beside the Lord of the fées seruice but the land shall remaine in the kings hands vntill the Lord of the fée hath made a fine for it And when they haue enquired of all things then they shal cause them to be priced as if they should straight way be sold and the bodie of him that is dead shall be buried Moreouer the Coroners shall enquire of them which be drowned sodainly slaine Sodainly slaine or strangled by the signe of a coard tyed strait about their neckes or about any of their members or vpon any other hurt found vpon their bodies or some other manifest token and shall attache the finders and al other in their company A Coroner ought to inquire of treasure that is found Treasure trone who were the finders and who are suspected thereof which may be gathered by some mans delicat liuing and frequenting of Tauernes which vpon suspition shall be attached by foure or sixe or mo pledges If any be appealed of Rape Rape he shall be attached by foure or sixe pledges if the appeale be fresh and the signe of the truth apparant or an open outcrie leuyed But if it be without any manifest token or outcry two pledges shall suffice Vpon Appeale of Maihem if the wounds Maihem or wound be mortall they which bee appealed shall bée forthwith apprehended and kept vntill it be knowne whether he that is hurt shall recouer or not if he dye they shall be retained if he liue they shall be attached by foure or sixe pledges according to the bignesse of the wound If it be for a Maihem then there shall be no lesse than foure pledges if a small wound be then two will serue The length breadth and déepenesse of all wounds The length breadth and déepnesse of wounds ought to be viewed and with what weapons and in what part of the bodie the partie was hurt and also how many wounds there be how many be culpable and who gaue the wound all which things shall bee inrolled in the Coroners roll Horses boats carts commonly called Deodands Deodands wherby any person shall perish shall be valued and deliuered to the whole township which shal be answerable therefore Whosoeuer layeth hands vpon the wreck of the sea Wrecke of the Sea shal be attached by sufficient pledges The price of the wrecke shal be valued and deliuered to the towne to answer c. 8 It doth first appeare by the words of this stat St. 3. Ed. 1. that the Coroner ought to do his office in his owne proper person The Coroner shall execute his Office in his owne person and not by Deputie viz. They shall presently come to those that bée slaine or sodainely dead And so also it is declared by the Statute of Excester St. 14. E. 1. and prooued by the foresayde definition of the Office or Authoritie of a Coroner viz. That a Coroner shall make a Record of his owne view which is that hée shall sée the dead bodie when hée doth make the inquirie or otherwise the inquirie is not good Fi. Cor. 10◠For if hee will inquire of any dead person without the sight of him this is without authoritie and so void The Coroner shall sée the dead body And therefore if the bodie bée buried before his comming hée must record it in his Rolles to the intent that the towne where
take reward of any who will fréely licence all persons to prosecute their right giue full eare to the widowes complaint further the cause of the orphan and fatherlesse and suffer none that hée can helpe to receiue wrong who will not feare the countenance of the mightie nor disdaine the basenesse of the poore whom neither hatred fauor or priuat affection will moue but without respect of persons will yéeld to each wight that which his cause requireth who will remember and neuer forget that God hath endowed him with knowledge and vnderstanding Ecclesiast 17 that he hath made a couenant with him to shew him what true iustice and iudgement is that all his actions bée continually in Gods sight and that euerie moment from heauen the King of Kings doth behold them And finally who duely respecting both the commissions which he hath receiued from God and his prince will so indifferently temper iustice with mercie towards the poore prisoner standing trembling before him at the barre as he will hope for mercie when himselfe shall make his last and great account before the God of iustice and mercie 2 Whereas diuers antient Prerogatiues and Authorities of iustice appertaining to the Crown of this Realm were seuered and taken from the same by sundrie gifts of the Kings Progenitors Kings of this Realme to the great diminution of the royall estate of the same and to the hindrance and delay of iustice St. 27. H. 8. 25. for the reformation whereof by a Statute made Anno 27. H. 8. it was enected That no person or persons of what estate condition None shall make Iustices but the King or degree soeuer they bée shall haue any power or authoritie to make any Iustices of Eyre Iustices of Assise Iustices of Peace or Iustices of Gaole deliuerie but that all such Officers and Ministers shall bée made by Letters Patents vnder the Kings great Seale in the name and by authoritie of the King and his heires Kings of this Realme in all Shires Counties Counties Palantine and other places of this Realme Wales and the Marches of the same or in any other his Dominions at their pleasure and wills in such maner and forme as Iustices in Eyre c. bée commonly made in euerie Shire of this Realme Any graunts vsages Acts of Parliament or other thing notwithstanding The Iudge vpon the arraignment of a Péerâ—e of the Realme 3 When a Péere of the Realme and Lord of the Parliament 1. H. 4. 1â— 13. H. 8. 13. 10. Ed. 4. 6. is to be arraigned vpon any Treason or Felonie whereof he is indicted and whereunto he hath pleaded not guiltie the King by his letters patents shall assigne some noble and sage Lord of the Parliament to bee high Steward of England for the day of his arraignement who before the same day shall make a Precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him xviij or xx Lords of the Parliament vpon the same day c. S. Triall 2. 4 Where Treasons Misprisions of Treasons Murders Manslaughters and other malicious strikings by reason whereof blood hath béen shed against the K. peace were often committed within the limits of the Kings palace or house or other houses where his Maiestie was abiding in his royall person which offences when they be done be best knowne by his Highnesse Officers of his houshold and by his seruants of his Checke roll And if his Maiesty shall happen to remoue from such his palace or house or other house where such offences were done before the tryall and determination thereof then such offences might not lawfully be tryed heard and determined by and before the sayd Officers but bée remitted to bée tryed and determined by the order of the Common law by reason whereof the punishment of the sayd offendors in such cases hath beene long time delayed and sometime their offences forgotten and not remembred and so they escaped vnpunished For the redresse whereof by a Statute made Anno 33. H. 8. it was enacted St. 33. H. 8. 12. That all Treasons Misprisions of Treasons Murders Manslaughters Bloudsheds and other malitious strikings by reason whereof bloud shall be shed against the Kings peace which shall bée done within any the Palaces or houses of the King or his heires or within any other house or houses at such time as his Maiestie shall bée then abiding in his royall person shall bee inquired of tryed heard and determined within any of the Kings houses or other house where his Maiestie shall bée abiding Iudge of treasons and felonies committed in the K. house before the Lord Steward of the Kings houshold and in his absence before the Treasorer and Comptroller of the K. houshold and Steward of the Marshalsey for the time beeing or two of them whereof the Steward of the Marshalsey to bee one by vertue of their offices without any Commission or other authoritie to them giuen And whether the King shall bée remooued from the house where such offences shall bée done or not before they be inquired of heard and determined yet such offences shall be inquired of tryed heard and determined before the Kings Officers of his houshold before named or two of them by the Inquisition and verdict of his houshold seruants in his Checke roll at such Palace or house where his Maiestie shall bée at any time abiding in manner and forme as is hereafter expressed The two Clerkes Comptrollers Clerkes of the Checke and Clerkes Marshals for the time being of the K. houshold or one of them vpon a Precept to them or any of them made by the Lord Steward or in his absence by the said Treasorer and Comptroller of the Kings houshold and the said Steward of the Marshalsey or by two of them whereof the sayd Steward of the Marshalsey to be one shall haue power to summon warne and returne the names of twentie foure persons being yeomen officers of the Kings sayd houshold in the sayd Checke roll to inquire of such Treasons Misprisions of Treasons Murders Manslaughters and other malitious strikings by reason whereof bloud shall bée shed against the Kings peace before the sayd Lord Steward and in his absence before the sayd Treasorer Comptroller and Steward of the Marshalsey or before two of them at the least whereof the Steward to bée one And it shall bee lawfull to the sayde Lord Steward and in his absence to the sayd Treasorer Comptroller and Steward of the Marshalsey aforesayd or two of them whereof the sayd Steward to bée one before whom such Returnes shall bée so made as is aforesayd to cause such number of the sayd foure and twentie persons so returned aboue the number of twelue persons as to him or them shall séeme expedient to inquire of such Treasons Misprisions of Treasons Murders Manslaughters or other malitious strikings by reason whereof bloud shal bée shed against the Kings peace
within the sayd Palaces or other the sayd houses at any time committed And if any person or persons bée indicted by the sayd Iurie so sworne before them as is aforesaid or by Inquisition before the Coroner of the sayd houshold and certified before the sayd Lord Steward or in his absence before the sayd Treasorer Comptroller and Steward of the Marshalsey or two of them whereof the sayd Steward of the Marshalsey to bee one Then immediatly the said Lord Steward or c. Treasorer Comptroller and Steward of the Marshalsey or two of them whereof c. before whom the sayd Presentment Inquisition or Indictment shall bée so found or certified by the sayd Coroner shall arraigne before them euerie such person so indicted according to the course of the common law and forthwith after issue ioyned betwéene the King and the prisoner so arraigned the same day and place or any other shall make another Precept to the sayd Clerks Comptrollers Clerkes of the Checke and Clerkes Marshals of the said houshold or to one of them to summon and returne one Iurie of foure and twenty persons to appeare before the sayd Lord Steward or c. Treasorer Comptroller and Steward of the Marshalsey or two of them whereof the sayd Steward of the Marshalsey to be one at such day time and place and vpon such paine as shal be then limited of the Serieants and Gentlemen Officers of the Kings chamber and of the sayd houshold which shall take wages by the K. Checke roll And the sayd Steward or c. Treasorer Comptroller and Steward of the sayd Marshalsey or two of them whereof the sayd Steward to be one before whom such Iurie shall bée so returned shall cause twelue of the same Iurie to bée sworne truely to try between the King and such person as shall bée so indictected and arraigned of such Treasons Misprisions of treasons Murders Manslaughters and other malitious strikings by reason whereof bloud shall bee shed against the Kings peace or any of them And if any such person or persons so arraigned be found guiltie of any Treason Misprision of Treason Murders or Manslaughters then hee shall haue iudgement of life and member and suffer such paines of death and shall forfeit all their mannors lands tenements goods and cattels in like manner as if the same person and persons had beene found guiltie of any of the sayd offences by the order of the common law without the benefit of Clergie or Sanctuarie Prouided alwayes that the tryall of Peeres for any offence before mentioned shal be as it hath beene vsed in times past St. 3. H. 7. 14 5 By the stat made Anno 3. H. 7. it was ordayned That the Steward Treasorer Iudges of conspiracie in the K. house and Comptroller of the Kings house for the time beeing or one of them shall haue authoritie to inquire by twelue sad men and discréet persons of the Checke rol of the Kings houshould if any seruant admitted to be his seruant sworne and his name put in the Checke roll of his houshold whatsoeuer he be seruing in any office or roome reputed and taken vnder the estate of a Lord make any confederacies coÌ„passings conspiracies or imaginations with any person or persons to destroy or murder the K. or any Lord of this realm or any other person sworne to the kings Counsel Steward Treasorer or Comptroller of the Kings house And if it be found before the said Steward for the time being by the said xij sad men that any such of the K. seruants as is abouesaid hath confederat compassed conspired or imagined as is abouesaid hee so found by the inquirie shall bee put thereupon to answer And the Steward Treasorer and Comptroller or two of them haue power to determine the same matter according to the law and if he put him in tryall then it shall bée tryed by other twelue sad men of the said houshold And if such misdoers shall be found guiltie by confession or otherwise the said offence shall be iudged felonie S. Felonie by Stat. 1. Iudges within the Verge 6 The Iustices of the Kings Bench the Iustices of Oyer and Terminer Co. li. 4. 47. Iustices of Gaole deliuerie and Iustices of Peace haue power to inquire heare and determine all murders and felonies within the Verge for that their authoritie and iurisdiction is generall through the whole countie and so it hath beene alwayes vsed 7 The Iustices of the Kings Bench Iudges of the K. Bench. without hauing Commission may heaâ—e and determine all maner of Treasons and Felonies And by the Stat. of Anno 35. H. 8. Anno 5. Ed. 6. it is enacted St. 35. H. 8. 2 St. 5. E. 6. 11 That all manner of offences being alreadie made or declared or hereafter to be made or declared by any laws and statutes of this Realme to be Treasons Misprisions of Treasons or concealments of Treasons done perpetrated or committed or hereafter to bee done Iudges of Treasons committed beyond the Sea perpetrated or committed by any person or persons out of this Realme of England shall bee inquired of heard and determined before the Kings Iustices of his Bench for Pleas to be holden before himselfe Dy. fol. 287 298. by good and lawfull men of the same Shire where the sayd Bench shall sit and be kept or else before such Commissioners and in such Shire of this Realme as shall bée assigned by the Kings Commission and by good and lawful men of the same Shire in like manner and forme to all intents and purposes as if such Treasons Misprisions of Treasons and concealements of Treasons had béene done and committed within the same Shire where they shal be so inquired of heard and determined Prouided alwayes that if any Peeres of this Realme shal be indicted of any such Treasons or other offences then they shall haue their triall by their Péeres as heretofore hath béene accustomed 8 By the Stat. intituled De finibus St. 27. E. 1. 2. St. 4. E. 3. 2 made Anno 27. Ed. 1. and also by the stat of Anno 4. E. 3. it is ordayned That good and discréet persons other than of the Benches Iudges of gaole deliuery if they may be found sufficient shal be assigned in all the shires of England to take Assises Iuries Certifications and to deliuer the gaoles And the Iustices assigned to deliuer the gaoles shall haue power to deliuer the same gaoles of those that shal be indicted before the gardeins of the peace And the said gardeins shall send their indictments before the Iustices And they shall haue authoritie to inquire of Sherifes Gaolers and others in whose ward such indicted persons shal be if they make deliuerance or let to mainprise any so indicted which be not mainpernable and to punish the said Sherifes Gaolers St. 3. H. 7. 1 and others offending against this Act. And by the stat of An. 3. H. 7. it is
or any of them in their Turnes or Lawdayes And as of other felonies 3. H. 7. 5. 5. E. 6. D. 69 9. H. 4. 1. so I. of peace may inquire of murder Murder because wilfull murder is felony But Iust of peace cannot inquire of treason Treason for neither the before mentioned stat of 18. E. 3. nor the words of their commission do authorise them so to do The Lord of a Mannor Iudge in felonie 13 There be some that haue libertie of Soc and Sac Tol and Them Bracton de Corona cap. 35. 2. R. 3. 10. Infangthéefe and Outfangthéefe these in their own courts may giue iudgement of him who is found within their liberty possessed of any manifest theft as if he be hand hauing and back bearing and that Sathaber viz. he whose the goods be do pursue him Kel fol. 150 for vnlesse he be in possession of the goods though another doth pursue him as a théefe yet that Court Hundred or Wapentake cannot hold plea of such a theft nor make inquirie by the Countrey whether such a man which was not possessed of the goods bee culpable or not Neither shall any wage battell without possession It is called Infangtheefe Infangthéefe where a Theefe is taken possessed of goods stolne within any such Manor or Libertie who is commorant and dwelling within the same libertie and one of the said Lords owne people Outfangthéefe Outfangthéef is a théefe that is a stranger comming from some other place into the Mannor of the Lord who hath such a libertie and is there taken with the manoure And yet he that hath such a libertie cannot fetch one of his owne people who hath committed larcenie out of his libertie and bring him into his libertie and iudge him there according to his libertie for euery person must receiue the punishment of the law where he hath offended the law But he may giue iudgement as well against his own people as against strangers committing larcenie that be taken within his libertie 46. Ed. 3. 15 14. H. 4. 15 And in this libertie of Infangthéefe and Outfangthéefe and in waife and stray and wreck of the sea a man may prescribe but so he cannot do in goods of felons and fugitiues for they do belong to the Crowne and cannot passe without the Kings graunt Fitz. Prescription 65 14 The custome of some countrey is such A felon first executed and then iudged that if one hath committed burglarie or other felonie and he be pursued by huy and cry from towne to town and so taken flying he must be beheaded in the presence of the inhabitants of foure townes and so by the vsage of that countrey he is accounted a felon And this must be recorded in the Coroners roll and after the Coroner must present it before the Iustices and they will adiudge him a felon And so he must be first put to death and after iudged a felon FINIS ⧠The generall Titles of this Booke 1MEnace Assault Batterie Jmprisonment Maiheming 2 Riots Routs vnlawfull and rebellious Assemblies 3 Force and Forcible Entries and Forcible detaining of possessions 4 Forgerie 5 Periurie and Subornation of Witnesse 6 Maintenance Champertie Embracerie 7 Deceit Couin Collusion Fraud 8 Extortion Exaction 9 Oppression 10 Treasons 11 Homicides 12 Felonies by the common Law 13 Felonies by Statute 14 Principall and Accessorie 15 Breaking of Prison and Rescous 16 Escapes of Felons 17 Pursute by Huy and Cry 18 Appeales of Felony 19 Jndictments 20 Mainprise and Bayle 21 Confession of the offence 22 Approuer 23 Sanctuarie and Abiuration 24 Pleading not guilty 25 Triall of the plea of not guilty by Battell 26 Triall by Peeres 27 Triall by the Countrey 28 Challenges 29 Euidence 30 The Verdict 31 Clergie 32 The Kings Pardon 33 Standing mute or answering indirectly 34 Judgement and Execution 35 Forfeitures for Treason or Felony 36 Corruption of Blood 37 Restitution of stolne goods 38 Dammages in an Appeale 39 A Writ of Conspiracie 40 The Coroner and his authority and dutie in Felonies 41 Who shall be Judge in Treason and Felonie ⧠A briefe effect of euery Braunch or Chapter in this Treatise Menace Assault Batterie Imprisonment Maiheming Fol. 1. 1 THe euill fruits of menaces Menacers shal be imprisoned The enormitie of libelling and defaming 2 The differences of Menacing Assault and Batterie 3 The declaration in trespas of menacing A rebuke accounted a Menace or Assault 4 Menacing a seruant wherby he departeth out of seruice 5 Menacing a tenant whereby he departeth from his tenancie Menacing of a Lords Freeholder 6 Menacing which is iustifiable 7 Menacing by going or riding armed 8 Wearing of a priuie coat a Menace 9 Labourers shall weare no weapons to preuent Menaces 10 Assurances made by Menace 11 What is an assault What is a batterie 12 Iustifying of beating in his owne defence Barre in trespas of Assault and Batterie 13 Iustifying of beating in defence of others The mastâ—rs remedy for beating of his seruant 14 Batterie in defence of his goods Battery in defence of his land lease or way 15 Batterie in resisting of a Iustice of Peace 16 A Schoolemaster beateth his Sholler 17 A Master beateth his Prentice 18 Beating of a man that is franticke 19 Beating of one that will not yeeld to arrest 20 Beating of a seruant departing out of seruice Beating of a Ward 21 Commaundement of Batterie 22 Battery or hurting at some exercise or disport 23 Battery by whipping of a vagabond Punishments by the order of Law 24 Battery for disobeying of a writ or warrant 25 Arresting one in a Church that is doing diuine seruice 26 Disturbing of a Preacher in his Sermon 27 Chiding in a Church or Churchyard Smiting in a church or churchyard Drawing or smiting with a weapon in a Church or c. 28 Drawing of blood within the kings palace 29 Assaulting one which commeth to the Parliament Assaulting the seruant of a Parliament man The liberty of the Clergie at a Conuocation house touching assaults 30 Assaulting a Iudge or Iuror Striking in time or place of iustice 31 Arresting by watchmen 32 Trespas for a battery before Outlawrie 33 A man first indicted for batterie and after sued for the same 34 What imprisonment is Voluntary consent no cause of imprisonment 35 Imprisonment by the commandement of the king or his Iustices c. 36 Imprisonment for notorious and grieuous offences 37 Imprisonment for offences done vi armis 38 Imprisonment for Riots 39 Imprisonment for holding land with force 40 Imprisonment of one that is pursued by huy and cry 41 Imprisonment of him that doth breake the peace Arresting of suspected persons 42 Imprisoning of him that doth attempt to rob 43 Assisting him to arrest that hath a warrant 44 Breaking of a house to arrest in what case lawfull 45 The shirife doth arrest and doth not returne his writ 46 Arresting vpon suspition of felony Causes of suspition of felony
47 Arresting vpon doubt of Manslaughter 48 A Iustice of peace his Warrant to arrest a felon 49 Arresting of an offendor and committing him to the Constable 50 Imprisonment vntill he had made an Obligation 51 The seruant not chargeable for the masters offence by imprisonment 52 No imprisonment by force of a Iusticies 53 Imprisonment by force of a warrant vpon a Supplicauit 54 Arresting him that would breake the peace 55 Imprisoning of a seruant that doth assault his master 56 In what cases imprisonment is lawfull and in what not 57 Imprisonment for offences done to the Iustices of the realme 58 What is maiheming 59 How many sorts there bee of maiheming 60 Examination of a maihem by the Iustices or Surgeons 61 Where diuers appeales of maihem for one offence 62 Principall and Accessarie in maihem The iudgement in an appeale of maihem 63 Mainprise in an appeale of maihem 64 Why maihem is supposed to be done feloniously 65 Barres in an appeale of maihem 66 Execution in an appeale of maihem 67 An action of Trespas maintenable after an appeale of maihem 68 The peace preserued and affraies restrained by Iustices of Peace The commission of the peace 69 The cōmission doth chiefely respect the peace Why they be called Iustices of the peace Binding suspected persons to their good behauior 70 A Iustice of Peace may take surety of the peace What the surety of the Peace is Certificat of a Recognisance The surety of good abearing 71 For whom and against whō the surety of Peace is to be graunted 72 Vpon what causes the surety of peace is to be graunted 73 Surety of peace enioined by word or writing 74 The seruing of Proces for the peace A warrant of the peace Who may serue it without writing and who without shewing it and who not Refusing to obey the warrant 75 To which Iustice of Peace the party arrested is to be brought 76 A warrant to find sureties to keepe the peace The party must offer his sureties 77 Surety of Peace doth dye with the king The Iustices authority dyeth with the king 78 The sureties of the Peace must be named 79 Hee that is bound to the Peace must appeare at a day prefixed 80 A Supersedeas for the peace 81 Taking a Recognisance for the keeping of the peace Taking a Recognisance for the good abearing 82 A Release of the suretie of Peace The parties release of the peace The Iustices Release of the Peace 83 Causes of the breach of the Peace or good abearing 84 The Sherife Constable and seuerall other officers be conseruators of the Peace 85 Euery able person when need requireth must be a conseruator of the Peace 86 Menaces Assaults Batteries c. in some cases are punishable in the Starre-chamber Riots Routs vnlawfull and Rebellious Assemblies Fol. 24. 1 The enormity of Riots Statutes ordained to preuent forces or Riots 2 The Court of Star-chamber authority to punish Riots c. 3 What is a Riot 4 What is an vnlawfull assembly 5 What is a Rout. Rout by wearing of armour 6 Lawfull assemblies of three persons or more An assembly lawfully begun doth end riotously 7 Disturbing of Riotors 8 The Iustices and Shirifes c. shall arrest Riotors Recording of a Riot 9 Inquiry of a Riot by the Iustices c. A Precept to the Shirife to returne a Iury to inquire of a Riot The forme of an inquisition of a Riot 10 Certifying of a Riot Trauerse of a Certificat 11 Proces against offendors 12 The forfeiture of Iustices which doe not inquire of Riots 13 A Commission to inquire of the Iustices c. default 14 Vpon the Commission the Coroner shall returne the Iurie What issues shal be returned vpon the Iurors 15 Where the Sherife shall returne the Iury and not the Coroner 16 A Writ directed to inquire of Riots 17 Riots shal be inquired of at the Kings costs 18 The punishment of Riotors 19 Each man shall helpe to represse Riots 20 Baylifes of Franchises Riots in Cities and Townes corporat 21 A Iury to inquire of Riots 22 Maintenance wherby a riot is not found 23 What one Iustice of Peace may do alone in a Riot 24 The Iustices must haue notice of a Riot 25 The parties agreement no discharge of the inquisition of a Riot 26 What power of the Countie the Iustices shall vse to represse Riots 27 The Iustices record of a Riot where no trauerse thereunto 28 The credit of the Iustices Record Certificat of a Riot 29 The proces against Riotors 30 The penalty for not executing of this statute 31 A trauerse to an indictment of Riot 32 Twelue or aboue assembled to change lawes 33 Practising to destroy Parks Ponds Conduits Common or Way Destroying of Deere Conies Douehouses Fish Pulling downe houses burning stackes of corne c. 34 Raising of vnlawfull assemblies by acts or words 35 Relieuing them which bee assembled 36 Vnlawfull assemblies aboue two and vnder twelue The remedy of the party grieued 37 Raising of power to suppresse vnlawfull assemblies 38 A copiholder being required refuseth to serue the king 39 A farmer required refuseth to serue 40 Disclosing a commotion wherein one is moued 41 An able person required refuseth to serue 42 Attendance vpon a Lieutenant 43 The forme of the Proclamation 44 Hinderance of the Proclamation 45 Other mens rights saued 46 Procuring others to offend 47 Vnlawfull assemblies by xl or aboue 48 A Lieutenant shall not appoint a deputie 49 Aiding of the offendor before the offence 50 The attainder of those offences no corruption of blood Force and Forcible Entries Fol. 34. 1 Vnlawfull force is an enemie to peace There shall be no forcible entry into lands 2 The penalty of forcible entry into lands or benefices 3 Holding possession by force Feoffement of lands for maintenance An Assise or action of Trespas against a disseisor by force The authority of officers in Cities and Towns enfranchised touching force 4 A speciall Assise against a disseisor with force 5 Seuerall remedies for seuerall offences by force 6 A Precept to the Sherife to impanell a Iury. The Shirifes forfeiture for not due executing of a Precept The proces against offendors in force 7 The forme of a Precept to the shirife to impanell a Iury. 8 The forme of an inquisition of forcible entry 9 A warrant to the Shirife to make restitution 10 Restitution awarded out of the Kings bench 11 No restitution but where forces is found by inquisition 12 Where no restitution against three yeares possession Where restitution notwithstanding three yeares possession 13 A Supersedeas to stay restitution 14 Where force found and yet no restitution 15 A Mittimus to send to the Gaole such as doe hold land by force 16 A Iustice may enquire of Forcible Entries without complaint 17 In an action of forcible entry the writ must be Vi armis 18 Who may bring an action of Forcible entry 19 He that hath title entereth by force 20 Hee that
felon 21 A wife not accessory to her husband 22 A wife may bee a principall felon 22 Accessaries to offēces made Felony by Statute 23 In Rape the assistant principall 24 Procurors and abettors in imbesilling of records 25 Accessaries to offendors in rebellious assemblies 26 Aidors and abettors in coniuration 27 Procurers to take a woman against her will 28 In what cases aiders bee principals 29 Acquitall of the principall acquitall of the accessarie 30 Principall and Accessary in Manslaughter 31 Two sorts of Attainders and which they be The principall shal be attainted before the accessary 32 Accessary in an appeale cōmenced by bill or writ 33 The principall shall be attainted before the Exigent shall bee awarded against the accessarie 34 The principall maketh default and the Accessarie appeareth 35 The Accessarie wageth battell 36 The accessarie pleadeth in abatement of the writ 37 Both the principall and accessary doe appeare Where the principals plea shal be tried before the accessaries answer 38 The principall pleadeth in abatement of the writ 39 The principall pleadeth not guilty 40 Seuerall principals and one accessarie 41 The attainder of the principall must be in the same suit 42 The principall attainted and dieth 43 The principall doth stand mute 44 Error in the attainder of the principall 45 An abiured accessarie returneth 46 The accessarie tryed vpon his owne request 47 The principall found not guilty 48 The principall dieth in prison before attainder 49 The principall attainted of another felony 50 The principal slew the dead man in his owne defence 51 The principall hath his clergie or pardon 52 In an appeale the acquitall of the principall is no acquitall of the accessary Breaking of Prison and Rescous Fol. 148. 1 Who is a prisoner 2 A stranger breaketh prison 3 Letting a prisoner escape 4 Negligent escape 5 Rescuing of a prisoner 6 Disturbing of an arrest 7 The Sherife returneth a Rescous 8 Whos 's the prison broken must be 9 Escaping or rescuing of one attached of Trespas 10 Rescuing of an offendor after iudgement 11 The imprisonment and not the attainder respected in escape 12 Letting escape one imprisoned for Treason 13 Disobeying of a warrant to arrest Hunters 14 Confession before a Coroner of breaking of prison 15 Opening the prison but not escaping Escape Fol. 149. 1 Voluntarie escape and what it is 2 Escape of an offendor not arrested 3 It must be felony at the time of the escape 4 Negligent escape and what it is 5 Killing of him that escapeth 6 Taking againe the party escaping 7 Licencing the prisoner to go to another towne 8 Licencing the prisoner to go into the same towne 9 Escape by bayling one not mainpernable 10 Escape of one arrested of petite Larcenie 11 Escape by the returne of Cepi Corpus 12 What is a double escape 13 Where an escape may bee without an arrest 14 Who shall be charged with an escape 15 Escape in a Towne walled 16 Flying to a Church and escaping 17 Escaping by making of abiuration 18 Escaping before or after arrest 19 Where the Sherife and where the Towne shal be charged with an escape 20 Where the Hundred shal be charged with an escape 21 Escape of one imprisoned for a time 22 Where the Towne Hundred or County shall bee charged with an escape 23 Who shall be charged with a prisoner if the Gaoler will not receiue him 24 Who is prisoner by matter of Record 25 Where a Towne shall bee charged with an escape 26 Where a Sherife shall bee charged with an escape 27 A Coroner sent to the Marshalsea to enquire of Escapes 28 Confessing and auoyding of an escape 29 Who is a prisoner by matter in fait Before whom an escape shall be presented 30 Iustices of Peace and the Coronor shall enquire of Escapes 31 Trauerse to a presentment of an escape 32 Escapes inquirable in Leets and Turnes 33 The penalties of Escapes 34 Where a man arrested may bee set at libertie without further tryall and where not Pursute by Huy and Cry Fol. 152. 1 All men shall pursue the huy and cry The punishment of concealement and not attaching of Felons 2 Fresh suit and inquiry shal be made after Felons The penalty if a Felon be not taken 3 Warding of townes that be walled 4 When the night watch shall be giuen and end The penalty of resisting of arrest 5 How highwaies shall be enlarged 6 The Hundred charged where Fresh suit vpon huy and cry shall cease The clerke of the Peace shall prosecute the suit 7 Who shall prosecute the suit if the clerke of the Peace doe die or be remoued 8 A remedie for equall contribution 9 Deliuering of the contribute money 10 Leuying of contribution 11 No penalty where any of the offendors be taken 12 Within what time the suit shal be commenced 13 In what manner huy and cry shal be made 14 Notice must bee giuen of the robberie The party robbed examined and bound to prosecute the offendors 15 A remedie for the inhabitants of Benherst in Barkeshire In what cases only their recouerie shal be had 16 Pursute will not serue without apprehension or descrying the Felons 17 Arresting of him that is pursued by huy and cry Appeales of Felonie Fol. 156. 1 What an appeale is Appeale by a woman of the death of her husband 2 An appellant conueyeth his title by a woman 3 The declaration in an appeale of Murther 4 The woman appellant must be the dead mans lawfull wife 5 The woman must liue vnmarried 6 The woman marrieth betweene iudgement and execution 7 Where an appeale for a woman but no dower 8 Where the wife may haue an appeale none other shall 9 Who shall haue the Appeale if the man slaine haue no wife A bastard Heire in borough English 10 An Appeale dyeth with the Appellant or by his Non-sute 11 The heire doth release the appeale and die 12 The heire doth recouer and die before the appellees execution 13 The eldest sonne disableth himselfe to bring an appeale 14 Who shall haue the appeale for killing of father mother brother or wife 15 A Lord killeth his villaine 16 An infant may haue an appeale 17 A man of threescore and tenne yeares of age may haue an appeale 18 Disabilities to bring an appeale 19 Disabilities in the appellant 20 Pleading that the appellant hath an elder brother 21 Atturny for the appellant in appeale 22 Who may pursue an Appeale of Robberie Robbing of a Carrier 23 The appeale of a woman of an infant of executors 24 A villaine shall not haue an appeale of Robberie against his Lord. 25 An Appeale or an Indictment for the kings goods 26 An Appeale of Robberie done to another 27 An Appeale of Rape 28 Who shall haue the appeale where a woman rauished consenteth 29 A lawful husband shal haue the Appeale of Rape 30 Where the father or kinsman shall haue an Appeale of Rape 31 An Appeale where the Lord doth rauish his Niefe
32 Pledges in Appeale of Rape 33 Within what time an Appeale shal be commenced 34 From what time the yeare shall haue relation 35 The yeare shall haue relation from the offence done 36 Within what time an appeale of Rape shal be commenced 37 In what County Appeale shal be brought 38 In what county an Appeale of Rape shal be brought 39 In what county an Appeale of Robbery shal be brought 40 Threatening in one county to bring money into another 41 Goods robbed carried into diuers Counties 42 Before whom an Appeale shal be brought 43 Remouing an Appeale out of the County 44 An Appeale before the Iustices of Gaole deliuery 45 An Appeale before the Iustices of the Kings Bench. 46 An Appeale against one bayled No Appeale against him that is let by mainprise 47 Appeale before Iustices of Peace 48 Appeale before the Constable and Marshall No Appeale in Parliament 49 Diuers Appeales for one felony 50 One onely Appeale for one Felony 51 Where diuers Appellees for one Felony 52 Two Appeals founded vpon one Felony 53 Robbery of seuerall parcels of goods 54 Where one shall answere to diuers Appeales or Indictments 55 Answere to diuers Indictments as well as to Appeales 56 He that hath his clergy shal answere to an Appeale of former offences 57 A Clarke shall answere to a former Appeale or Indictment of former offences 58 Proces in Appeale before the Coroner 59 Proces vpon an Appeale or Indictment 60 Proces against indictors in another County 61 Proces against Appellees and Indictees in forraine Counties 62 Proces vpon an Appeale remoued into the Kings Bench. 63 The party appealed must be supposed to be of a forraine countie 64 An appellee dwelling in no place certaine 65 Proces into a County Palantine 66 Proces against Principall and Accessarie 67 The Statute of West 1. extendeth onely to Appeales commenced by Bill 68 In Appeale one appeareth and others make default 69 Proces to remoue an Appeale 70 A Certiorari into the countie 71 Proces against the plaintife after an appeale remoued 72 Proces against the defendant after an appeale remoued 73 Proces against one that by the Shirifes returne escaped 74 Proces with a prouiso for the appellee 75 Proces to remoue prisoners or records 76 How the appellee shall bee led to the barre 77 Count in an Appeale An Appeale of Murther The yeare day houre time of the king and the towne materiall 78 The place where the fact was done 79 Count in an Appeale of death against three as principals The fact must be declared 80 Count in an Appeale of Robbery 81 Where in an appeale of Rape the Statute must be rehearsed in the Count and where not 82 Defence in an Appeale 83 Pleas to the Writ in Appeale 84 The forme of the Writ in an Appeale of Rape This word Rapuit materiall 85 Not two Appeales for one offence 86 Pleading of one in an Appeale brought against two 87 The plaintife in an Appeale misnamed 88 Two or three pleas to the Writ 89 Barres in Appeale Barre in Appeale of death brought by the wife 90 Barre in Appeale of death brought by the heire 91 Barre in Appeale of Rape or Robberie 92 Generall pleas in barre in Appeale 93 Barre for that the plaintife brought another Appeale 94 Barre by the plaintifes release 95 Pleading not guilty after other pleas 96 Where the king may prosecute an Appeale begun 97 No Appeale of Treason Indictments Fol. 169. 1 Commissions to Sherifes to take Indictments 2 When the Sherife shall hold his Turne An Indictment found in an vnlawfull time 3 Sherifes shall enquire by xij men at the least 4 Indictment before the Sherife shall bee by Roll indented 5 Of what sufficiencie Iurors returned in the Sherifes Turne shall be 6 Indictments taken in the Shirifes Turne shal be deliuered to the Iustices of Peace 7 Iurors in Indictments shal be returned without the denomination of any 8 Pannels for Indictments may be reformed by the Iustices 9 An Enquest to inquire of the concealement of other Enquests 10 In what case indictment and triall shall bee where the King will 11 Indictments and Trials of Treason committed out of the Realme 12 Indictment in the county of Lancaster of a forrainer 13 Indictment of a Lancashire man in a forraine County 14 Indictment for the striking or poisoning of a man in one coūtie who dieth in another Indictment of an accessary to an offence committed in another County 15 Indictments lacking these words Insidiatores viarum depopulatores agrorum 16 Words not necessary in Indictments 17 No more shall be in an Indictment then is true Felonicè or Piraticè in an Indictment 18 Where a verdict in an action of Trespas shall be an Indictment of Felony 19 The Sherifes returne is no Indictment 20 The yeare day and place necessary in an Indictment 21 An Indictment must be certaine in the matter 22 An Indictment must be certaine in the persons receiued 23 An Indictment vncertaine at what Court 24 Indictment for making of money 25 Indictment of a common theefe Indictment of the Ordinarie 26 The foresaid A. in an Indictment where none is before named 27 Indictment for the killing of a man vnknowne Indictment for the stealing of the goods of a man vnknowne 28 Indictment for the stealing of the goods of a Church or Chappell 29 An Indictment depending vpon an argument or implication 30 In an Indictment furatus est without felonicè or in Rape carnaliter cognouit without rapuit 31 An Indictment before Iustices of Peace 32 An Indictment before the Maior of London vpon sight of the body 33 Indictment of the receit of a Felon as accessarie 34 Indictment of the receit of the goods stolne and of the Felon 35 Indictments void for one purpose will serue for another 36 A prisoner discharged and after retained in prison 37 The difference between an Appeale and Indictment 38 Pleading another time acquit of the same Felony 39 Indictment of the death of a man knowne by two surnames 40 Indicted of the same mans death 41 Indicted in two counties of one offence 42 Arraigned vpon an insufficient Indictment or Appeale 43 Acquit vpon an erronious Appeale 44 Acquit vpon an Appeale brought by one that hath no right 45 Arraigned vpon an Indictment before the parties Appeale be determined 46 Acquit by battaile in an Appeale 47 A Murtherer indicted and arraigned at the Kings suit Another time acquit no plea in an Appeale but in an Indictment 48 No Indictment of Robberie vntill the Appeale bee tried 49 Pleading another time conuict of the same Felony 50 Another time attainted of the same Felony 51 The Kings Pardon obiected against the plea of another time attainted 52 Who is said attainted and who conuict of Felony Mainprise and Baile Fol. 180. 1 In what cases a prisoner is mainpernable in what not 2 The principall in Appeale of death not mainpernable 3 Where the principall let to mainprise 4 Pleading
excommunication in the plaintife 5 Who are mainpernable who not Bailement by the Shirife With-holding of Prisoners mainpernable 6 In what cases no mainprise by the common Law The King or Iustices commandement 7 The Marshall shall baile no prisoner The Iustices ordinarie or absolute commaundement 8 Mainprise for offendors in Vert or Venison 9 In what case hee that is outlawed may be bayled 10 Mainprise during an approuers life 11 Maineprise vpon good name The principall in Burglary and Robbery mainpernable 12 No bailement for a prisoner attainted 13 Bailement of offendors by Iustices of Peace 14 Bailement of offendors by the Shirife 15 Bailement by Shirifes and others 16 Imprisonment at the Kings pleasure 17 The difference betweene bailement in Felony and in a personall Action 18 Mainprise is matter of Record Confession of the offence Fol. 184. 1 An offendor in felony pleadeth one of three pleas 2 Confession of the offence before the Iudge vpon the prisoners arraignement may bee in two sorts Confession of the offence must be free and without menace 3 He that doth confesse his offence before the Iudge doth become an approuer 4 Confession of the offence before the Coroner whereupon abiuration doth ensue Approuer Fol. 185. 1 Who is an Approuer An Approuer shal be banished 2 Of what offences approuement may be 3 Approuement in an Indictment and not in an appeale 4 Before whom one may approue 5 How an Approuer shall vse himselfe No approuing after pleading An Approuer must tell truth 6 An Approuers oath 7 An Approuers wages 8 An Approuer set at liberty An Approuers appeale must be certaine 9 Proces against the appellees after the approuement 10 Pleas for the appellee against the approuer An Approuer attainted or conuict of Felony 11 An appellee cannot appeale others 12 An Approuer not in prison for felony or at liberty 13 The appellee an honest and credible man 14 Generall pleas in barre of the appeale 15 Where the king may pursue an Appeale begun 16 The appellants release to the appellee 17 An Approuer confesseth his Appeale to be false 18 An Appeale abating before declaration A Felon taken with the mannoure 19 No arraignment at the kings suit vpon a false declaration Where if not an appeale yet an Indictment may bee at the kings suit 20 The plaintife in the appeale excommunicat or outlawed 21 An Approuer pardoned the appellee shal be discharged 22 Vanquishing of one of the approuers 23 Examining of an offendor condemned Sanctuary and Abiuration Fol. 189. 1 What Sanctuarie is 2 What Abiuration is 3 All Sanctuaries be extinguished Abiuration by the common Law Abiuration to a place within the Realme 4 No abiuration for Treason 5 No abiuration for the robberie of a Church 6 No abiuration for a man attainted 7 No abiuration for a man before abiured 8 Where an offendor may bee drawne out of the Church by violence The offendors confession before the Coroner 9 Tarrying in a Church aboue the time limitted 10 The manner of Abiuration The oath of Abiuration 11 The attire of an abiured person 12 The vsing of persons abiured 13 The abiuration broken death ensueth A Clarke need not to abiure 14 Where no Felony no abiuration for Felony 15 The abiured pleadeth that he is not the same person The Kings pardon of Abiuration 16 Abiuration by a Recusant 17 Abiuration by a Popish Recusant 18 Abiuration by him that committeth Trespas Pleading not guilty Fol. 192. 1 The plea of not guilty the most common for a prisoner One may plead not guilty after other pleas 2 Where vpon the plea of not guilty counsel shal be allowed and where not Triall by Battaile Fol. 193. 1 Triall of not guilty by Battaile or by the Countrey 2 The forme of triall by Battaile 3 The reason why the defendant in an appeale may be tried by battaile 4 Counterpleas to the Battaile 5 Taken with the manoure 6 Breaking of prison 7 Le ts of triall by battell on the plaintifes part 8 Priuiledges of the appellants person The King A Citizen of London 9 No wager of battell in an appeale of Rape 10 One fighting with seuerall men 11 An Appeale by an approuer 12 The appellee wageth battell and then becommeth blind Triall by Peeres Fol. 196. 1 The triall of the plea of not guilty by Peeres 2 The forme of arraignement and triall of a Peere of this realme 3 By whom Peeres appealed shal be tried By whom Ladies shall be tryed 4 The triall of Bishops Arraignement and Tryall in Parliament 5 Triall of Treason committed in Ireland 6 Triall of Misprision of Treason The number of Peeres at the triall 7 Triall of Peeres by Peeres in all cases of Treason and Felonie Triall by the Countrey Fol. 198. 1 Triall of the plea of not guilty by the countrey 2 Triall by the country of forraine pleas A man stricken vpon the Sea dieth vpon the land 3 The Proces against the Iurie The Proces in an Appeale and not in an Indictment 4 Where a Nisi prius is grauntable in an Appeale 5 Remaunding of prisoners out of the Kings Bench into the Countrey 6 Triall of Felonies committed by English men in Scotland 7 The prosecutors and witnesses bound to giue euidence 8 The accessary tried though the principall be not 9 Euery Iuror must haue fiue pounds of freehold 10 The offendor shall forfeit no lands 11 A like Act made in Scotland 12 Scottishmen repairing into England to giue euidence shal be free from arresting 13 The offence shall be layed where it is done 14 Hee that is once tried shall not be eftsoones called into question 15 None shall bee sent out of England to receiue his tryall 16 The Iurors shall allow of or reiect the witnesses Challenge Fol. 201. 1 Where the prisoner is allowed to challenge peremptorily Seuerance in challenges 2 Which be challenges vpon cause for that hee was an indictor 3 Challenge for want of Medietatem linguae 4 Challenge for want of sufficient freehold 5 Challenge for the king 6 A man outlawed of Felony shall haue his challenge 7 A Iuror challenged for that he is an Alien a Villaine or Outlaw Euidence Fol. 204. 1 Some bound to giue euidence against an offendor let to baile 2 Some bound to giue euidēce against an offendor imprisoned 3 Restitution of goods vpon an attainder by euidence 4 Euidence giuen by a stranger 5 There must be two accusors to giue euidence in Treason 6 Euidence or accusors in high Treason 7 Euidence against abettors to offences 8 Euidence on the defendants part in Felony Verdict Fol. 206. 1 A Verdict at large may bee giuen in Felony 2 The Verdict sometime lesse penall then the Indictment 3 The Verdict sometime more penall then the Indictment 4 Where the Iury shal find who killed the dead man Clergy Fol. 207. 1 What Clergy is 2 Who shal not haue his clergy by the common Law 3 A committer of Sacriledge 4 The habite or tonsure of a Clerke 5 Clergie
Lord shall haue a Writ of Escheat and where he may enter 52 The forme of a Writ of Escheat 53 The kings remedy for lands escheated vnto him An office for those lands which doe escheat for Felony 54 The wiues forfeiture of title of Dower 55 What the appellee that wageth battell shall forfeit 56 A Rent-charge pro consilio not forfeited 57 The forfeitures of an outlaw Corruption of Blood Fol. 239. 1 Corruption of Blood salued by Parliament only 2 Where corruption of blood shall preiudice tenant by the courtesie 3 The eldest sonne attainted during his fathers life 4 Where attainder but no corruption of blood Restitution of stolne goods Fol. 240. 1 Restitution of goods vpon Fresh suit 2 What conuiction shal be sufficient to giue the owner restitution of his goods 3 Where the owner shall haue restitution 4 Before whom and by whom inquirie of Fresh suit is to bee made 5 Restitution vpon attainder by indictment Damages in Appeale Fol. 242. 1 The punishment of the appellant and the abettors when the appellee is acquit No Essoine for the appellant in an appeale of death 2 The appeale must bee commenced vpon malice 3 The statute of 13. Ed. 1. extendeth to all Felons 4 The defendant in an appeale acquited by battell 5 Where the accessarie in an Appeale shall recouer dammages 6 Where the defendant is said to acquit himselfe in due manner and where not 7 Acquitall at the Kings suit is only in appeale 8 What Iustices may inflict the penaltie vpon the Appellant 9 The dammages for seuerall persons assessed seuerally 10 Where the appellant shall pay a fine to the king 11 In what cases inquiry shall be made for the abettors 12 What pleas the abettors may plead 13 Proces against the abettors Nonsute in the proces against the abettors 14 A writ against the abettors by the appellee 15 Procurers of indictments for suits in spirituall courts A Writ of Conspiracie Fol. 245. 1 In what case a Writ of Conspiracie doth lye 2 Conspiracie maintenable vpon an acquitall in an indictment or appeale 3 The indictment must be false which giueth the Writ of Conspiracie 4 Conspiracie doubtfull whether true or false 5 The conspirators do become indictors A Iustice of Peace A giuer of Euidence 6 Who be conspirators 7 A Conspiracie must bee by more then one Where only one shal be charged in Conspiracie 8 No Writ of Conspiracie against the Husband and the Wife 9 The forme of the Writ of Conspiracie 10 The writ of Conspiracy for the accessarie 11 Barres in a writ of Conspiracie 12 Iudgement in Conspiracie A villanous iudgement 13 Inquiry of Conspiracie by Iustices 14 Inquiry of Conspirators at the kings or parties suit 15 Procurers of an indictment or an appeale in a forraine county 16 An offence supposed to bee done in a place where there is none such The Coroner and his authoritie and dutie in Felonies c. Fol. 249. 1 The office and duty of a Coroner 2 The Writ de Coronatore Eligendo 3 Who shall be Coroners and by whom they shal be chosen 4 Whether Coroners ought to be knights 5 Causes to remoue a Coroner 6 Where a Coroner shall haue fee and where not 7 What things Coroners shall inquire of 8 A Coroner shall execute his Office in his owne person A Câ—â—oner shall see the dead body A body buried taken vp againe 9 A Coroner must presently doe his office 10 A Coroner shall onely enquire of the death of a man A man slaine in an arme of the Sea A Coroner concealing or not apprehending a Felon 11 The force of a Coroners Record Which Coroners Record shall be preferred Abiuring before the Coroner Confession of breaking of Prison before the Coroner 12 Who ought to appeare vpon the Coroners Inquisition 13 The Coronour with the Sherife may take Appeales 14 Stopping vp of a place of daunger by the Coroners commaundement 15 Where the presence of all the Coroners is requisite and where but some one of them 16 The Coroner must record the euidence and bind the party to giue it 17 Inquiry of a man slaine within the Kings House and Verge 18 One man Coroner of the Kinges House and the Countie Who shall be Judge in Treason and Felony Fol. 253. 1 The King ought not to bee iudge in Treason or Felony What men of condition Iudges ought to be 2 None shall make Iudges but the King 3 Iudges vpon the arraignement of the Peeres of the Realme 4 Iudges of offences that are done in the Kings Pallace 5 Iudges of Conspiracies made to destroy the King or any Lord c. 6 Iudges within the Verge 7 Iudges of Treason committed out of the Realme 8 Iustices of Gaole deliuerie Iudges in Felony 9 Iudges of Nisi prius Iudges in Felony c. 10 Speciall commissioners Iudges at the arraignement of a Murderer 11 Iudges of piracie or offences done vpon the sea 12 Iustices of Peace Iudges in Felony 13 The Lord of a Mannour Iudge in Felony Infangtheefe Outfangtheefe 14 A Felon first executed and then iudged FINIS