was established That if any Felon or Felons doe robbe or take away any money goods or cattels from any of the kings subiects from their person or otherwise within this Realme and thereof be indicted and after be arraigned of the same Felony and found guilty thereof or otherwise attainted by reason of Euidence giuen by the party so robbed or owner of the said money goods or cattels or by any other by their procurement then the party so robbed or owner shal be restored to his said money goods and cattels Before which statute the party robbed or owner of the goods stolne could not haue had restitution without suing of an Appeale against the Felon Euidence giuen by a stranger 4 If the seruant be robbed the master may giue euidence against the Felon and haue restitution by this statute if so be that the goods robbed were the goods of the master for the words of the statute be The party so robbed or owner Also if he that was robbed doth not giue Euidence himselfe but procure another to giue the euidence this is sufficient by the words of the statute to obtaine restitution of his stolne goods There must be two accusors to giue euidence in Treason 5 By a Braunch of a statute made Ann̄ 5. Ed. 6. St. 5. E. 6. 11 it was ordained That no person or persons shall be indicted arraigned conuicted condemned or attainted for any Treasons that now be or hereafter shal be vnlesse the same offendor or offendors be therof accused by two lawfull accusors which said accusors at the time of the arraignment of the party accused if they be then liuing shal be brought in person before the party so accused and auow and maintain that which they haue to say against the said party to proue him guilty of the Treasons or offences contained in the bill of indictment layed against the party arraigned vnlesse the said party arraigned shall willingly without violence confesse the same But after by the statute of An. 1. 2. P. M. St. 1. 2. P. M. 10. T. 2. 3. P. M. Dyer 132. it was ordained That all tryals to be had awarded or made for any Treason shall be had and vsed onely according to the due order and course of the common lawes of this Realme and not otherwise Quaere whether the said stat of 1. 2. P. Ma. do take away the force of the foresaid stat of 5. Ed. 6. which it is thought it doth not but that the said statute of Anno 5. Ed. 6. doth remaine in force séeing it was ordained onely for the accusation or euidence and not for the time place or order of the triall Euidence in high Treason 6 If there be an accusor of high Treason of his owne knowledge 1. M. Dy. 98. or of his owne hearing and he doth vtter it to another that other may well be an accusor or witnesse And likewise if the second man do vtter it to the third and the third to the fourth man euery of them may be an accusor or witnesse Euidence against abettors to offēces 7 By the statute of Anno 5. Eliz. St. 5. El. 1. it is ordained That no person or persons shal be indicted for assisting aiding maintaining comforting or abetting of any person or persons for any of the offences mentioned in the said statute in extolling setting forth or defending of the vsurped power and authority of the bishop of Rome vnlesse he or they be thereof lawfully accused by such good and sufficient testimony or proofe as by the Iury by whom he shall be so indicted shal be thought good lawfull and sufficient to proue him or them guilty of the said offences S. Treasons 15. 8 By the Statute made Anno 31. Eliz. St. 31. Eli. 4. it is ordained Euidence on the def part That such person and persons as shall bée impeached for any offence made Felony by that Statute béeing intituled an act against imbesilling of armour habiliments of warre and victuals shall by vertue of this act be receiued and admitted to make any lawfull proofe that he can by lawfull witnesse or otherwise for his discharge and defence in that behalfe any Law to the contrary notwithstanding S. Felonies by Statute 33. ⧠Verdict 1 AFter the prisoner hath pleaded not guilty hath béen thereupon arraigned and euidence giuen against him in open court before the Iudges and the Iury the same Iury do depart from the barre to consider of their euidence proofes which being done they return again to the court to giue vp their verdict which as the issue of not guilty is generall so may they deliuer their verdict guilty or not guilty if they will and that their euidence be cleare and do induce them therunto But it is not alwaies requisit to giue a generall verdict for if the fact whereupon the prisoner was arraigned be such that the Iury doe stand in doubt whether it be felony or not they shall best discharge their consciences to giue a speciall verdict that is to say a verdict at large viz. a verdict declaring at large the whole truth of the matter which may be done as well in case of felony as in an assise A verdict at large in felony or action of Trespas as they may deliuer their verdict 44. E. 3. 44 Fi. Cor. 284 286. 287. 47. Ass p. 31 that the prisoner which is arraigned for the killing of a man did slay the same man in his owne defence for he that is arraigned must plead not guilty séeing that in his plea he cannot iustifie the killing of a man and then the Iury in their verdict may declare the whole circumstance of the fact and conclude that he killed him in his own defence for it is not a sufficient verdict for the Iury to say that the prisoner killed the man in his owne defence but they must shew the cause manner and circumstance of the fact that the court may discerne iudge whether the fact which the prisoner hath committed be felony or not whether the prisoner standeth in the Kings mercy or not and whether hee shall loose his goods or not The verdict lesse penall thē the indictment 2 As a Iury may giue a speciall verdict touching a man that killed another in his own defence so may they giue a speciall verdict where he that is arraigned killed another by misfortune Or where he which cōmitted the homicide was not of perfect memory or deafe dumbe or an infant without discretion Or that the thing which was stoln was not worth aboue x. d. Or that he which is indicted arraigned for committing of a murther T. 26. H. 8. 5 P. 9. El. Dy. 261. Pl. com 101 Br. Cor. 221 Br. Appeale 122. did kil the man by chance medley or in his owne defence and not of malice prepenced And if two be indicted for cōmitting of a felony do plead
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
in returning of those Iurors lest by their partialitie Truth may be concealed Periurie committed and so iustice subuerted Fitz. Challenge 113. 7. Ed. 4. 56. 33. Ass p. 12 12. Ass pl. 1. 26. Ass p. 56 12. Ass p. 36. 44. Ass p. 18 Plo. Com. fol. 425. 29. Ass p. 2. 28. Ass p. 22 7. H. 4. 10. Fitz. Challeng 94. 99. 8. H. 5. 5. 20. H. 6. 39. 11. H. 4. 26. 38. H. 6. 6. 24. Edw. 37. And for that cause the prouidence of the Lawe doth not allow that Shiriffe Vndershiriffe Bailiffe of Franchise Coroner Causes of suspition in Shiriffes in impannelling of Iuries or other person as indifferent or méete to impannell a Iurie who is a partie to the sute or matter in question or who doth maintaine either of the parties plaintife or defendant in the same sute or is of councell with either of them in that sute then in issue Nor who is within the distresse receiueth the yéerely fée or weareth the liuerie or robe of any of the parties to that sute Nor who is of kinred by nature or of affinitie by marriage to any of the parties to that sute Nor who doth returne that Enquest or any of the Iurors therein at the denomination or by the procurement of any of the parties to the same sute or of any other person whatsoeuer Nor who doth impannell that Enquest or any of the Iurors therein for the fauour which he doth beare more to the one partie than to the other Nor who was an Arbitrator in that cause in question and to be in triall and did treate and conferre of the same Nor who is then in sute of lawe with either of the parties to this question or triall for any matter of trespasse malice or euill will Nor who did baptize the childe of any of the parties to this sute and triall 4. Ed. 4. 11. or any of the parties to the same sute did baptize his childe All which the Lawe doth suspect as causes of fauor and affection in the Shiriffe his Vndershiriffe c. and to be moouers fauourers or consentors to Periurie and therefore vpon challenge of the Array so being impannelled and the same prooued the whole Array shal be quashed 4 As the Lawe hath great care that Shiriffes Vndershiriffes Bayliffes of Liberties Coroners and all others hauing authoritie to returne enquests should therein be voide of all partialitie or presumption or cause thereof to the intent that a gappe should not be left open by their meanes to those that be willing to enter into corruption of conscience and so to commit Periurie In like sort hath shée vigilantly foreséene that those Iurors which be returned by the said Shirifes c. may be so sifted tried and examined that they may be found in all respects Probi legales homines Euery Iuror must be an honest and lawfull man viz. honest vpright 33. H. 6. 55. 26. Ass p. 28 14 H. 4. 19. 9. Ed. 4. 16. 11. H. 4. 4. and lawfull men in the eie and iudgement of the Lawe and that none of them be an Alien a villaine or outlawe an excommunicate person and thereby not legalis homo nor conuicted in a Writ of Conspiracie or an Attaint and by that meanes not probus homo and so to be challenged in euery cause and by euery person and further that they may be prooued to bee men of indifferencie and voide of all partialitie and such as will wholy respect the trueth of the cause in question and in their verdict nothing regarde any that is partie thereunto And therefore if there be any lawfull cause to feare particular fauour and affection in any of the Iurors and that hée will rather incline to Periurie than giue eare to the trueth of the cause the Lawe doth allow to the partie grieued Challenges of Iurors suspected or suspecting the same seuerall Challenges to the same Iuror and thereby to haue him drawne and remooued out of that Enquest A witnesse 5 As if a man be a witnes in a cause in question he can not be a Iuror in the same cause for the witnes doth testifie vpon his certaine knowledge 23. Ass p. 11 12. Ass p. 12 11. Ass p. 19 and the Iurors of an Enquest must giue their verdict according to their euidence And besides he that produceth a witnesse expecteth at his hand a fauourable deliuery of his euidence or otherwise he would not produce him which fauor euery Iuror must be wholy voide of if he will auoide Periurie Periurie suspected by deliuering his verdict before hand 6 If a Iuror after he is returned and before he is sworne 20. H. 6. 39. 8. Ed. 3. 69. will say that he will passe for the plaintife or defendant and doth speake it for the fauour which he beareth to the one partie or the hatred which he hath to the other and not in respect of his owne knowledge of the trueth of the cause the Law doth feare periurie in him and therefore shée will remooue him out of that enquest if he be challenged therefore Periury suspected by lying at the charge of one of the parties 7 If one that is impannelled of a Iurie doth goe to the Assises with one of the parties to the issue and doth eate and drinke with him at his charges 8. Ed. 3. 69 13. H. 4. 13. Fitz. Challenge 177. the Law doth suspect the same Iuror of partialitie and so of inclination to Periurie in recompence of that kindnes receiued and therefore she will remooue him out of that Enquest if he be challenged therefore 20. H. 6. 39. 9. Ed. 4. 46. 7. H. 7. 18. 8 If two men be in question for any cause Periurie suspectcted by an Arbitrator in the cause in question and then do refer the matter in debate to be heard ended by two Arbitrators whereof the one doth make choice of one Arbitrator and the other of an other which Arbitrators doe méete together and confer of the cause but do not agrée whereupon the party grieued doth prosecute the said suit to an issue and one of the same Arbitrators is returned of that Enquest the law doth suspect the same Iuror of partialitie and so of inclination to Periurie and therfore she will remoue him out of that Enquest if he be challenged therefore for when he was chosen by one of the parties alone this election maketh him in a sort of councel with him that did choose him and so fauorable vnto him but if he had bin chosen by the consent of both the parties together 3 H. 6. 25. the law would haue made other construction of him and adiudged him indifferent 34. Ass p. 6. 9 If two men do combine themselues by Oath bond couenant or faithfull aduised promise that one of them will take an others part be his friend and assist him in all causes whatsoeuer And after there is a sute commenced betwéene one
of the Iurors and that the Iuror in respect thereof doth beare an extraordinarie affection and is to make a recompence to the same partie and that therefore in this triall hée will fauour him and be a meane of Periurie and therefore if the Iuror be challenged for that cause he shall be drawen And some doe affirme the same cause of challenge and feare of Periurie to be 7. H. 6. 40. 19. H. 6. 66. if a Iuror hath béene godfather to either of the parties to that triall or to any childe of his 14 The Lawe expecting to be satisfied per Veredictum Iuratorum of the trueth of such causes as doe come to an issue dooth carefully foresée that those Iurors who are to deliuer the trueth by their verdict Periurie suspected in respect of ignorance of the cause should either before the time of the triall vpon their owne priuate knowledge or by their Euidence at the time of the triall be certainely informed of that trueth of the thing in question lest by ignorance mistaking falshoode for trueth they should slide into Periurie And because those that be dwelling or haue some land where the land lease or thing in question doth lie are more likely to haue intelligence of the trueth of the cause in question both to satisfie themselues and informe their Companions than other strangers of the same Countie are who dwell farre off the Lawe hath ordained by the Statute of Anno 27. Elizab. That there shall be sixe sufficient Hundredors impannelled vppon euery Issue ioyned which is to be tried in any of the Courts of the Kings Bench Stt. 27. El. 6. Common Pleas and the Exchequer Want of Hundredors or before the Iustices of Assise in all cases where euerie Iuror by the auncient lawes of this Realme ought to haue fortie shillings of fréeholde at the least And that at or vppon the triall of any personall action there shall two sufficient Hundredors at the least appeare And for that cause if in those cases there be not so many Hundredors at the least the Lawe doth conceiue they be ignorant of the truth of the Issue in triall And to that end for the auoiding of Periurie she will reiect the whole Iurie if they be challenged And so it is in an Assise where the plaintife is to be put in possession per Visum Iuratorum if he recouer or in any action where the Iurie is to haue the view of the land in question 8. Ed. 3. 69. Fitz. Chall 102. 169. if the same Iurors Want of the view or some of them had not the view of the land in question nor did know it before the Lawe will suspect that they will commit Periurie if they should be sworne séeing they be ignorant of the land and know it not in specie And therefore vpon challenge they shall be remooued 1. R. 3. 4. 15 Because our Law-makers haue in seuerall ages found by experience that nothing is a greater motiue enticement Periurie in respect of pouertie or rather inforcement to Periurie than néede and pouertie Therefore they haue endeuoured by many Statutes to prouide that such as be returned of Enquests should not onely be men of good behauiour and credite but also of conuenient liueliehoode estate and abilitie to liue of themselues for that Necessitie which hath no lawe nor bridle should not compell them to sell truth for rewardes nor to plunge themselues into Periurie for bribes And for the preuention of this Periurie in poore persons and such as bee of meane and weake estate Stt. 21. Ed. 1 by a Statute made Anno 21. Ed. 1. it was ordained That no Shiriffe Vndershiriffe or Bayliffe of Libertie shall put in any Recognisaunces of Assises Iuries Enquests or Attaints Iurors impanelled that shal passe out of their owne Counties that shall passe out of their proper County any person of their Bayliwickes except he hath lands and tenements to the yearely value of a hundred shillings at the least or that shall passe within the Countie except hée hath lands to the yearely value of xl s. And for the same cause vpon the same reason of preuention of periurie in poore and néedy persons by a Statute made Anno 3. H. 5. it was established St. 3. H. 5. 3 That no persons shall be admitted to passe in any enquest vpon triall of the death of a man or in any enquest betwéene partie and partie in plea reall or in plea personall whereof the debt or dammages declared do amount to xl Markes if the same person hath not lands and tenements of the yerely value of xl s̄ aboue all charges so that he be challenged for that cause by the party But by the Statute of An̄ 23. H. 8. St. 23. H. 8. 13. euery person being the Kings naturall subiect borne which by the name of a Citizen a fréeman Iurors to try felonies in corporat townes or any other name doth inioy the liberties of any Citie borough or town corporat where he dwelleth being worth in goods to the cléere value of xl li. shall be admitted in triall of Murders and felonies in euery Sessions and gaoles of deliuery kept in and for the libertie of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this Act extendeth not to any Knight or Esquire dwelling abyding or resorting in or to any such citie borough c. And by the Statute of An̄ 27. Eliz. it was enacted Sta. 27. El. 6. That in all cases where any Iuror to bee returned for the triall of any issue or issues ioyned in any of the Courts of the Kings Bench common Pleas the Exchequer or before Iustices of Assise by the Lawes of the Realme now in force ought to haue estate of fréehold in lands Where Iurors must haue 4. li. land tenements or hereditaments of the cléere yerely value of xl s̄ in euery such case the Iurors that shal be returned shall euery of them haue estate of fréehold in lands c. to the cléere yearely value of foure pounds at the least out of auncient demesne within the Countie where the issue is to be tried By the Statute of 11. H. 7. it is prouided St. 11. H. 7. 21. That no person shal be impannelled summoned or sworne in any Iury or Enquest in Courts within the citie of London Iurors in London except he be of lands tenements goods or cattels to the value of xl Markes And no person shall be impannelled summoned or sworne in Iuries or Enquests in any Court within the said Citie for lands or tenements or action personall wherein the debt or dammages amounteth to the summe of xl markes except he be in lands tenemēts goods or cattels to the value of one hundred marks St 19. H. 7. 13. By the Statute of Anno 19. H. 7. it was ordained That euery of the xxiiij persons dwelling within the shire where any riot
Iurors to enquire of riots rout or vnlawfull assembly shall be committed which shall be returned by the Sherife to enquire thereof shall haue lands and tenements within the same shire to the yearely value of xx s. of Charter land or freehold or twentie sixe shillings eight pence of copiehold or of both aboue all charges But in that case by the Statute of Anno 2. H 5. St. 2. H. 5. 8. if they be returned by the Coroners then euery of them shall haue lands and tenements or rents to the yearely value of tenne pounds at the least By the Statute of Anno 1. St. 1. R. 3. 4. R. 3. it was enacted That no officer shall returne in any panell to be taken or put in Iurors in the sherifs Turne or vpon any inquisition or inquirie before the Sherife in his Turne other than such which bee of good name and fame and which haue lands or tenements of freehold within the same countie to the yearly value of xx s̄ at the least or else copyhold lands to the yearely value of xxvj s̄ viij d. at the least aboue all charges By the Statute of An̄ 8. H. 6. Sta. 8. H. 6. 9 it was prouided That euery person which shall be returned to inquire of any forcible entrie into lands Iurors to inquire of forcible entrie or detayning of lands by force shall be a sufficient indifferent person and shall haue lands and tenements to the cléere yearely value of xl s̄ By the Statute of An̄ 1. H. 8. it was established Sta. 1. H. 8. 8. That euery Iuror which is returned before any escheator Iurors returned before Escheators or commissioner to inquire of lands or tenements or some other to his vse shall haue lands or tenements of the yearely value of xl s. aboue all charges in the same shire where the inquirie shall be made St. 11. H. 7. 21. 23. H. 8. 3. 37. H. 8. 5. And by the stat made An̄ 11. H. 7. An̄ 23. H. 8. An̄ 37. H. 8. The Iurors returned vpon an attaint in London or els where shal be of more or greater ability in lands tenements goods or cattels then is before specified 16 The law hauing first vsed al good deuises to cause shirifes vndershirifes Bailifes of liberties coroners al others authorized to return impannel Iuries to be indifferent to returne the said Iuries Iurors without al partiality that they shal be no furtherers maintainors nor assistors to periury subornation or embracery also hauing prouided that all those Iurors which be so returned vpon Enquests to try issues betwéen party party may again one by one be sifted tried examined whether they standing vnsworne be indifferent or not She doth then expect to receiue from those Iurors Veredictū a true tale that is to say a true verdit or presentment of such things as be giuen them in charge according to their euidence But if the same Iurors will decline from truth and make a false presentment contrarie to their euidence then is it not to be termed Veredictum but Periurium and it will be returned to them as Maledictum for by the common Law they being attainted by the verdict of xxiiij other Iurors shall receiue a cursed and villanous iudgement therefore viz. the said Iurors shall loose the fréedom of the Law their wiues children shall be thrust out of their houses Fit Ass 396. 46. Ed. 3. 23. 42. Ed. 3. 26 6. Assi◠p. 7. 30. Ass p. 24 40. Ass p. 20. 41. Ass p. 18. Li. Int. fo 92 The iudgement in an at the common law of a Iury proued periured their houses shall be pulled downe to the ground their orchards gardens shall be supplanted their trées shall be digged vp by the roots their meadowes shall be eyred vp All the goods cattels which they had at the time of the Attaint brought or at any time after shal be forfeited to the King The King shall haue all the profits of their lands during their liues And they shall be committed to perpetuall prison Which iudgement was deuised many yeres put in execution to the intent it might be knowen how much the common Law did detest and punish wilfull Periurie and falshood in those who shée trusted in place of justice and from whom shée accompted to receiue truth 17 But sithence by the Statute of An̄ 11. H. 7. and An̄ 23. H. 8. the said iudgement against a petit Iurie attainted is in some cases altered and qualified Sta. 11. H. 7. 21. for by the Statute of 11. H. 7. it is ordained That the party grieued by any false verdict giuen in any of the Courts of the Citie of London shall and may sue Attaint by Bill in the Hustings of London The iudgement in Attaint in London holden for common Pleas before the Maior Aldermen of the same Citie And if the graund Iurie sworne in the same Attaint find that the petit Iurie haue giuen an vntrue verdict then the iudgement shal be against the defendant as is vsed in attaint sued by writ at the common Law And the iudgement shall be against the petit Iurie that euery of them shall loose xx li. or more by the discretion of the Maior and Aldermen of the said Citie kéeping the Hustings to such vses as other issues and penalties béen forfeited in any action or plaint commenced before the Mayor and Aldermen of the said citie and his bodie to bee imprisoned there to remaine without baile or mainprise vj. moneths or lesse by the discretion of the Mayor and Aldermen and to be disabled for euer to be sworn in any Iurie before any temporall Iudge But the iudgement in such Attaint shall not extend to any lands or tenements St. 23. H. 8. 3 An. 13. El. 25. ne to other punishment of the petit Iurie And by the before mentioned Statute of Anno 23. H. 8. it was enacted That vpon euery vntrue verdit giuen betwéene partie and partie in any suit plaint or demaund before any Iustices or Iudges of Record where the thing in demaund and verdict thereupon giuen extendeth to the value of fourtie pounds An attaint where the thing eetendeth to xl l. and concerneth not the ieopardie of mans life the partie grieued by the same verdict shall haue a writ of Attaint against euery person so giuing an vntrue verdict and euery of them and against the partie which shall haue iudgement vpon the same verdict And euery one that shall passe in the same Attaint shall haue lands and tenements to the value of twentie markes by yeare of fréehold out of auncient demesne And if the graund Iurie find that the petit Iurie gaue an vntrue verdict then euery of the said petit Iurie shall forfeit twentie pounds whereof one halfe shall be to the King and the other halfe to him that sueth to be leuied by Capias ad satisfaciendum fieri facias
of the stat of 18. El. 14 Maintenance Champertie buying of titles Embracery haue bin accounted so offensiue professed enemies to the iustice peace of the realm that though by the stat of an 18. El. it is ordained Stat. 18. El. 5 That euery informer vpon any other penall stat shal exhibit his suit in proper person pursue the same onely by himselfe or by his Atturney in court and that none shal be admitted to pursue against any person vpon any penall stat but by way of information or originall writ and not otherwise nor shall haue any deputy at all And that vpon euerie such information which shal be exhibited a speciall note shall be made of the very day moneth yere of the exhibiting therof into any office or to any officer which lawfully may receiue the same without any maner of antedate to be made thereof And that vpon euery such proces shal be indorced aswel the parties name that pursueth the same proces as also the stat vpon which the information in that behalfe made is grounded and that no Informer or plaintife shall compound or agrée with any person that shall offend or shal be surmised to offend against any penal statute for such offence but after answer made in court vnto the information or suit in that behalfe exhibited or prosecuted nor after answer but by the order or consent of the court in which the same information or suit shal be depending Yet in the said stat of 18. El. there is a prouiso That it shal be lawfull for any person or persons grieued by means of any maintenāce chāpertie buying of titles or other embracery to pursue vpō any stat prouided against maintenance champerty buying of titles or embracery as he or they might haue done before the making of the said act Which prouiso was made to the end that all persons grieued by reasons of any maintenance champertie buying of titles or embracery should be left at libertie to pursue chasten the offendors therin by all such means as former laws haue authorised thē not be restrained by any of the ordinances or articles before rehearsed for that the said offēces were by the makers of the said stat adiudged to be greater impedimēts obstacles to the execution of iustice than other penal stat were 15 As the policie of the realme hath deuised the foresaid popular actions and suits to enable euery person that will Assurances to haue mainte void in diuers cases to pursue prosecute maintainors champertors buyers of pretenced rights c. to the intent the sooner to root out extirpat those offendors who indeuor to wrest the execution of lawes out of their due course to subuert iustice thereby to hinder the peace of the realme so hath it in some cases gone further ordained that some assurances made for maintenance shal be presently void as it appeareth by the stat of an 8. St. 8. H. 6. 9 H. 6. wherby it was enacted Lands gotten by force assured to haue maintenance That if any person after his entry into lands or tenements holden with force do make a feoffement or other discontinuance to any Lord or other person to haue maintenance or to toll defraud the possessor of his recouerie in any wise If alter in an Assise or other action thereof to be takē or pursued before the Iust of Assise or other the kings Iustices whatsoeuer they be by due inquiry therof to be taken the same feoffements and discontinuances may be duly proued to be made for maintenance as is aforesaid that then such feoffements or other discontinuances so as before made shall be void St. 4. H. 4. 8. holdē for none And by the stat made an 4. H. 4. it was established That if any man great or small of what estate or condition they be Lands forcibly gotten by maintenance make any forcible entry in his own right or to his own vse or in anothers right to his vse by the way of maintenāce therof is attained at the suit of the party grieued he shal be one yere imprisoned pay to the partie grieued his double dammages And also he shall answer to the partie grieued damages for his goods cattels if vpon the said forcible disseisin he tooke away any 16 As by the before mentioned stat maintenance champerty What maintenance is punishable and what iustifiable embracerie buying of titles be in generall termes deciphered together with their seuerall penalties so haue the learned Iudges Sages of the law expounded the particular branches of euery of those stat as they grew in question were prosecuted in suit before them also resolued what maintenance is punishable and what iustifiable who may pursue an action writ bill or information c. of maintenance champerty c. against whom the same is to be brought for what offēce or cause the same is maintenable what pleas are to be pleaded to the writ or in bar of the said actions writs informations c. what iudgemēt shall ensue thereupon As euerie champertie is an vnlawful maintenāce prohibited by the foresaid stat of West 1. West 2. 9. H. 6. 64. St. 28. E. 1. 11. and punishable according to the before rehearsed stat of An. 28. E. 1. and euerie chāpertie is a maintenance the partie grieued may haue aswel a writ of Maintenance as of Champertie for by that meanes the champertor hauing bargained to haue part of the land or thing in question doth ofttimes moue further the suit suborneth witnesses corrupteth the Iurie and so subuerteth iustice but there must be a suit depending before it can be adiudged maintenance in any sort for if one man wil giue money to another to beginne and prosecute a suit against a third person 3. H. 6. 55. 8. H. 5. 8. 10. Ed. 4. 19. 30. Ed. 3. 3. this is no maintenance for that this mony was giuen when there was no suit depending and if there be a writ brought and neuer returned it is no maintenance No maintenance in a Iuror for giuing his verdict 17 If there be a suit depending betwéene two and they do ioyne an issue 18. E. 4. 2. 28. H. 6. 6. which is tried by xij men found for the plaintife in this case the defendant cannot haue an action of maintenance against the said Iurors or any of them for this verdit giuē for that they gaue their verdit according to their euidence and their knowledge of the truth of the matter and besides they did not thrust thēselues into that cause but were compelled to appeare by an ordinarie course of law being impanelled returned by the Sherife or some other lawfull officer Maintenance by a Iuror suing for iudgement but if after the verdit giuen any of the Iurie wil solicit or labor to the Iudge or Iudges of the court where the said suit
is depending to giue iudgement for the plaintife then the def may haue an action of Maintenance against him for that the same iudgemēt is a thing wholly belonging to the office of a Iudge and not of a Iuror therfore he doth therin intermeddle with another mans office and another mans cause more than he hath to do or may iustifie and so hath committed vnlawfull maintenance Maintenance in a Iuror 18 If a Iurie be charged to inquire of a matter in issue 17. E. 4. 5. 18. Ed. 4. 4. one Iuror may persuade his cōpanions or any of them to passe for the plaintife or def as he conceiueth the truth of the cause to be or as their euidence doth induce them this is no maintenance but if one of the Iurors will giue or promise money to another of his fellowes to giue his verdit for the pl. or def this is vnlawfull maintenance though he doth wage him to giue his verdit according to truth and right of the cause in issue Maintenance by speaking of words 19 If a man of great authoritie in a country will in the presence of a Iurie 22. H. 6. 5. 13. H. 4. 19. and the standers by at the tryall of an issue say openly that he will spend mony in the cause in question in the behalfe of the pl. or the def or that hee will giue money to labour the Iury or wil speake other great or high words in fauor of one of the parties this is vnlawful maintenāce in him though he do spend no mony in that cause nor doth labor the Iury therin for it may be that whē the Iury do by his words know his meaning they dare not in respect of his authoritie or greatnesse in that coūtie giue their verdit otherwise thā he would haue them None shall sit with the Iust of Assise on the bench And for the preuention of that kind of maintenance by a stat made An. 20. R. 2. it was ordained That no Lord or other of the country great or small St. 20. R. 2. 13. shall sit vpon the bench with the Iust of Assise in their Sessions in any of the Shires of England vpon paine of a great forfeiture to the King neither the Iustices shall suffer the contrarie to bée done Maintenance in comming to the barre with one of the parties And in like sort if a man of great authoritie in the Countie where an Issue is to be tried hauing nothing to doe in that cause doth come to the barre with the plaintife or defendant 22. H. 6. 6. that is one of the parties to an Issue that is then to bée tryed and standeth by him this is an vnlawfull maintenance in him though hée neither doth nor yet speaketh any thing in the matter for his presence and companie with the one partie doth shew to the Iurie his particular affection to the same partie and doth ofttimes induce them to fauour as much as labour and persuasion by words could doe And though the Iurie doe not respect him but giue their verdict for the other partie to that suit according to their euidence and the truth of the cause in question yet he hath done what in him lyeth to the contrarie 21. H. 6. 15. 22. H. 6. 5. 28. H. 6. 7. Dyer fo 95. 20 And so it is if two be in suit and do ioyne in issue Maintenance by giuing of money to labour a Iurie and the Master of one of the parties to that issue or any other will deliuer money of his owne to a stranger to labour the Iurie impanelled to try that issue to giue their verdit for his said seruant or friend this is maintenance vnlawfull in the Master or other though the partie to whom the money was giuen did neuer deliuer it to the Iurie nor did not labour vnto them in such sort as hée was directed or though the Iurie did giue their verdict against his said seruant for when the Master had deliuered the money to the stranger and told him to what purpose he should vse it he had done as much as he could do in that suit to hinder the course of iustice though his direction tooke no successe according to his desire And also it is vnlawfull maintenance if one giue money to a man that is impanelled of a Iurie to giue his verdict on the one side though that partie impanelled doth not appeare or do appeare and is drawne out by challenge or otherwise 22. H. 6. 6. And it is maintenance vnlawfull if one do threaten to kill or beat a Iuror if he do not giue his verdict for the one part to that issue which hee doth name though the same Iuror do otherwise 28. H. 6. 6. 21 If a Iurie do come to a mans house What is maintenance in a witnesse and what not and desire him to informe them of the truth of a matter whereof they do doubt and he doth informe them therof this is iustifiable But if one do come to a Iurie or of himselfe do labour to informe them of the truth of a cause in question this is maintenance vnlawfull and therefore punishable And so it is if the Court be informed by the plaintife or defendant when an issue is to be tryed that there is a man at the bar or in that place who doth know the truth of the matter in issue and doth desire that the same man may be examined by the Court to testifie the truth of that cause in question to the Iurie and the Court doth cause him to be called to testifie his knowledge therein and he at the commaundement of the Court deliuereth that which he doth know in that matter this is maintenance iustifiable But if the same partie will come to the barre of his owne head and testifie for the plaintife or the defendant this is vnlawfull maintenance and hée may be punished therefore 22. H. 6. 6. 22 If one man do labour to indict another by force whereof he is indicted Maintenance by procuring of an indictment in this case hee that is indicted may haue a writ of Maintenance against the procurer of that indictment and yet this is no quarrell but it is a taking of a part St. 1. E. 3. 14. and so prohibited by the stat of anno 1. E. 3. and it is in the nature of an action betwéene the King and the partie indicted and the foresaid statute is generall that it shall not be lawfull to any person great or smal to maintain quarels or to take parts to the let or disturbance of the Common law What is maintenance in a mainpernor 23 If a man be arrested indicted or sued 34. H. 6. 25. 14. H. 6. 6. 18. E. 4. 12. so that he is compelled to become bound with mainpernors for his apparance the mainpernor may come into the Court and sée the apparance of the same partie recorded and iustifie the
triall by battel in that case so doth it ratifie and confirme the euent and successe thereof to be iustifiable And the law depending vpon the iudgement of God who giueth victory according to the truth hath assigned either of theÌ„ to doe execution of iustice vpon the other as it hath assigned the Sherife to do execution of iustice vpon him that after verdict confession or outlawrie is condemned to die Homicide vpon necessitie 11 Homicide vpon necessitie as before is said is when one man killeth an other with griefe of mind and sorrow of heart and beeing enforced vnto it therby to deliuer him selfe or that which is his or some other persons that he is bound to defend from further petill which otherwise cannot be auoyded and this homicide is by law iustifiable As if one or diuers persons come to a mans house to burne his house Homicide in dâ—fence of his house from burning but he or they doe not burne it 26. As p. 23 if the owner of the house or any of his seruants doe shoote forth of the house Co. l. 5. 91. and kill the offendors or any of them this is homicide by necessitie in defence of his house and not felony Lex Alâ—re di And in like sort if one or more come to a mans house to rob him Homicide in defence of a man â—rom robbery and the owner or any of his seruants or company being with him in the house doe kill the offendors or any of them this is homicide by necessitie in defence of his goods and thereby iustifiable for a seruant may iustifie the killing of an other in defence of his masters person 21. H. 7. 39. or house if the offence can not be otherwise auoided And he may iustifie the killing of him who robbed and killed his Master 26. Ass p. 23 so that he doe it presently And if one doe attempt to robbe an other being out of his house and pursueth him to that end 26. As p. 32. the true man may kill the offendor and shall be discharged thereof without any forfeiture or suing of the Kings pardon And so shall he in the other former cases where anie doe attempt to burne or robbe a mans house for a mans house is his Castle out of which the Lawe will not compell him to flie 21. H. 7. 39. 12 Forasmuch as it was in question and doubt if any euill disposed person or persons doe attempt feloniously to robbe or murder any person or persons in or nigh any common high way cart way horse way or foote way or in their mansion messuages or dwelling places Or that feloniously do attempt to breake any dwelling house in the night time should happen being in their such felonious intent to be slaine by him or them whom the said euill doers should so attempt to robbe or murder or by any person or persons being in the dwelling house which the same euill doers shall attempt burglarily to breake by night if the saide person so happening in such cases to slay any person so attempting to commit such murder or burglarie should for the death of such euill disposed person forfeit and loose his goods and cattells for the same as any other person should doe that by chaunce medley should happen to kill any other person in his or their defence for the declaration of which ambiguitie and doubt by a Statute made Anno 24. St. 24. H. 8. 5 H. 8. it was enacted That if any person or persons shall be indicted or appealed for the death of any such euill disposed person or persons attempting to murder robbe No forfeiture for homicide vpon necessitie or burglarily to breake mansion houses as is aforesaide that the person or persons so indicted or appealed thereof and of the same by verdict so found and tried shall not forfeit or loose any lands tenements goods or cattells for the death of any such euill disposed person in such manner slaine but shall be thereof and for the same fully acquited and discharged in like maner as the same person or persons should be if he or they were lawfully acquited of the death of the said euill disposed person or persons 13 But if one man doe come in the day time to an other mans house Killing another in his owne defence in his owne house and doth make an assault vpon him in his owne house Fi. Cor. 305 and doth fight with him if the owner of the house doe slay the assailant in his owne defence the owner of the house shall forfeit his goods and be driuen to sue for the Kings pardon except that it be prooued and found that the assailant came also to robbe the other in his house 14 Homicide in a mans owne defence ought to be so great Necessitie ineuitable is requisite in homicide in his owne defence and vpon such necessitie that it must be estéemed to be ineuitable or otherwise it will not excuse for héere the killer of the man hath not to doe with a felon as in some of the former cases but with a lawfull and true man And it is not materiall whether the person that did kill or the person which was slaine did beginne the fray but the whole matter will consist vpon the ineuitable necessity without the which the killing is by no meanes excusable The definition of homicide in his owne defence And therefore the true definition of Homicide in his owne defence is when the assailant doth make a fray Fi. Cor. 284 286. 287. 297. or offer force to the defendant and doth strike him the defendant doth flée so far as he can for sauing of his life so that he is come to a straite beyond the which he cannot flie and the Assailant doth continue his assault whereupon the defendant doth strike the assailant and doth kill him this is homicide in his owne defence For if the defendant could haue auoyded the assailant and did not but when the assailant did strike him 43. Ass p. 31 he did strike him againe and killed him this is felonie in the defendant And though the defendant doth giue to the assailant diuers wounds yet that is not materiall if he flie to a straite before he doth giue him the mortall wound for the Law doth allowe that iustifiable which a man doth in defence of his owne person And yet in the case aforesaid if the defendant vpon malice prepenced doth strike another and theÌ„ flie to a wall or straite and the other doth pursue and strike him Fi. Cor. 387 and the defendant who fled doth kill the pursuer this is murder and not homicide in his owne defence for the malice prepenced was the ground and beginner of this homicide and not necessitie ineuitable Where in homicide in his owne defence goods shall be forfeit and where not 15 One man did strike another to the ground 44. Ass p. 17 and then
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
his wife such a woman and had issue betwéene them B. their eldest sonne and hee which was slaine their second sonne and the appellant their youngest sonne and that he which was slaine died liuing B. their eldest sonne The appellāt in appeale of death may sue by atturney 21 For that by the common Lawe hée that will sue an appeale must sue it in proper person which sute is long and costly and maketh the partie appellant wearie to sue For the reformation whereof it was ordained by the Statute of Anno 3. H. 7. St. 3. H. 7. 1 That the Appellant in any appeale of murder or death of a man where battaile by the course of the common Lawe lieth not may make his atturney and appeare by the same in the saide appeale after it is commenced to the end and Execution of the same Who shall maintaine an appeale of robberie 22 As concerning an appeale of Robberie who shall maintaine it Fi. Cor. 100 and for what causes it is to bée obserued That hée from whom the goods be taken may haue the same appeale As the Seruant shall haue an Appeale of Robberie if the goods of his Masters bée taken out of his custodie and possession and yet hée had onely the possession but no propertie in the goods robbed A Carrier And so it is if a Stranger bee commaunded to carrie another mans goods and as hée is in carrying of them 2. Ed. 4. 15. hée is robbed of them and they taken from him In this case the same Stranger may haue an Appeale of Robberie against those Robbers because hee standeth charged to him who commaunded him to carry the same goods Fi. Cor. 357 23 A woman A woman may haue an appeale of robberie and so may an infant An Infant Likewise Executors Executors may haue an appeale of Robberie of a Robberie of the Testators goods done to themselues but not done to their Testator for if a man be robbed and after maketh his Executors and die the Executors shall not haue an appeale of Robberie for an appeale being a personall action dieth with the partie and shall not accrew to his Executors Fit Cor. 17. 24 A Villaine Villaine shall not haue an appeale of robberie against his Lord Lord. for any goods robbed or taken from him by his said Lord Because all the goods of the Villaine be the Lords at his pleasure 17. Ed. 3. 13 25 One may haue an appeale of robberie for the King or the Quéene Appeale for the King or Queene Stealing the goods of a mā attainted of treason as of any iewelles plate or other goodes of the Kings or Quéenes robbed or taken from him 11. H. 4. 40. And a man may be indicted of felonie for the stealing of goods of another that was attainted of Treason which goods by the said attainder were forfeited to the King 26 There be some Cases where one may haue an appeale of robberie An appeale of robbery done to an other though the robberie was not done to him but to another as if there be two marchants Fi. Cor. 392 or other tradesmen that doe merchandize or occupie their goods in common and one of them is robbed and slaine In this case the other merchant or tradesman may haue an appeale of robberie against the Robbers And in like sort if one doe steale my goods from me and another doth steale them from him In this case I may haue an appeale against the second felon because by the first taking the propertie was not out of me for a felon doth not claime any propertie in the thing stolen in such sort as hée doth 4. H. 7. 5. 13. Ed. 4. 3. who taketh a thing as a trespassor 27 Touching an appeale of rape Appeale of rape and who by the Lawe shall maintaine the same it is to be noted That if a woman sole be rauished she may haue an appeale of rape 8. H. 4. 21. But if a woman married be rauished she cannot haue an appeale without her husband 28 If a woman couert be rauished An appeale where a woman rauished consenteth and after she doth consent to the rauisher her husband onely shall haue an appeale of rape by the Statute of Anno 6. Ric. 2. St. 6. R. 2. 6 the words whereof be these It is ordained that wheresoeuer and whensoeuer any Ladies Noblemens daughters or other women be rauished and after the same rape committed doe consent to the rauishers as well the rauishers as they that be rauished and euerie of them shal be disabled and be disabled ipso facto to haue or challenge all manner of inheritance dower or ioint feoffment after the death of their husbands and auncestors And the husbands of such women if they haue husbands or if they haue no husbandes liuing then their Fathers or other their next knismen in blood shall haue the sute to prosecute and may pursue against the same offendours and rauishers in this behalfe and to conuict them of felonie though the same woman after the Rape doe consent to the Rauishers And in this case the Defendant shall not wage battell but the truth of the matter shal be tried by the Countrie S. Felonies by Statute 4. A lawfull husband 29 The wordes of this Statute be That the husbands of such women c. which is to be intended of her lawfull husband That is to say that her husband in right and possession shall haue the Appeale 11. H. 4. 14. for neuer accoupled in lawfull marriage is a good plea in barre against him And in like sort it is if the appeale be brought by the husband and wife because the appeale is in the right and so hée must be her lawfull and rightfull husband that must maintaine the appeale alone or iointly with his wife Where the father or kinsman shal haue an appeale of rape 30 This Statute of 6. Ric. 2. doth giue the appeale for default of the husband to the father or to some other their next kinsman in blood and so by the expresse words of this Statute an appeale of rape is giuen to the father and yet hée shall not haue an appeale of the death of his sonne or daughter And where the said statute doth giue the appeale for default of the husband to the father or c. That is to be intended where the woman doth consent to the rauisher St. 13. E. 1. 34 for otherwise the woman shall haue an appeale vpon the statute of Westminster 2. 31 If a Lord doe rauish his Niefe A Lord rauisheth his niefe Fit Cor. 17 she shall not haue an appeale of Rape against him But the King shall punish him by indictment Pledges in rape 32 It appeareth by the statute intituled Officium Coronatoris St. 3. Ed. 1. That if any be appealed of rape hée shall be attached by foure or sixe pledges if
thereupon cause the Shirife to indite them at his next Turne Sanctuarie and Abiuration SAnctuarie in Gréeke called Asylum What Sanctuarie is and by some in Latin termed Templum misericordiae is a place priuiledged by the King or chiefe gouernor of a country for the safegard of the life of such a person as doth offend the king his Lawes crowne and dignitie royall Which priuiledged places were deuised and instituted by the lawe of mercie vpon deuotion and the great reuerence and honour that Princes chiefe Rulers had to such places wherein they graunted such priuiledges As first almighty God himselfe the chiefe Author of mercie gaue in charge to his seruant Moses when the children of Israel were in their peregrination towards the land of Promise that certaine Cities or places of refuge or Sanctuarie might be prouided for those to flie vnto Deut. 19. By whome Sanctuaries were instituted and to escape the hands of the reuengers of blood who should by mischance and not willingly slay others And after Iosua 20 the same people being setled in the same Land he caused Iosua to execute the same commandement by assigning six cities to that purpose And long time after that Mulmutius Dunwallo one of the renowned kings of the Brittons who made many most worthy lawes for the well gouerning of his subiects which were called Mulmutius Lawes at the least 440. yeares before the natiuitie of our Sauior Christ ordained for Sanctuaries places of priuiledge or defence of mans life certaine Temples and the foure great high waies which he before had caused to be made or begunne at his owne charges viz Fosse Watling stréete Erming stréete and Ikeneld stréete and in some cases and for some purposes euery plough which Franchises or Liberties Belinus his sonne did after more fully effect and confirme And some of the ancient Princes Kings or Gouernors in this Realme graunted places of defence or sanctuarie to such as should commit treason some others to such as should commit murder robberie burglarie or other offences whatsoeuer which in that point was further than the priuiledge which God gaue to his owne Sanctuarie Exodus 21 that was ordained onely for him which should kill another vnwillingly for God commanded that if any did slay his neighbor vpon malice prepenced or by assault he should be taken from his Altar and put to death 2 Abiuration is an othe that a man or woman doth take What Abiuration is when they haue committed felonie and do flie to a Church or churchyard for the safegarde of their liues choosing rather to be perpetually banished out of the realme than to stand to the Lawe and to be tried of the felony and this was one of saint Edwards Lawes that was King of this Realme before the Conquest and instituted by him which is also founded vpon the Lawe of Mercy that the Kings of this Realme did extend for the great reuerence that they did beare to the Temple of God and to places dedicated to him which was alwayes vsed sithence that time without alteration vntill the one and twentie yeare of King Henry the eight St. 21. H 8. 2 And this abiuration is an attainder in it selfe of felonie that is confessed which attainder by confession is the most strong that may be for the vehement presumption that it hath of trueth for it should be very absurd to say that he hath not committed such a felonie when the partie himselfe hath confessed it to the ouerthrow of himselfe and all his posteritie All Sanctuaries be extinguished 3 By the Statute of Anno 32. H. 8. it was enacted St. 32. H. 8. 12. That all Sanctuaries and places priuiledged which haue béene vsed or taken for Sanctuarie except parish churches and their churchyards cathedrall churches hospitalls and churches collegiate and all chappels dedicate vsed as parish churches and the Sanctuaries to euerie of them belonging and except such places and territories as hereafter be appointed to be places of tuition and priuiledge viz. Welles Westminster Northampton Norwich Yorke Darbie Launceston and Westchester shall be vtterly extinguished adnulled and voide for euer And by the Statute of Anno 22. H. 8. it was ordained St. 22. H. 8. 14. That if any person flie or resort to any parish church Cemitorie or other like halowed place for tuition of his life by occasion of any murder robbery or other felony by the same person committed and thereupon confesse any murder felonie Abiuration by the commō Lawe out of the Realme or other offence before the Coroner wherefore the same person by the Lawes of this Realme heretofore vsed should abiure and passe out of the same The same person thereupon shall abiure from all his libertie of this Realme and from his liberall and free habitations resorts and passages to and from the vniuersall places of this Realme which appertaine to the libertie of the Kings subiects vndefamed and shall forthwith be directed by the Coroner Abiuration to a place within this Realme taking and recording such abiuration to any one Sanctuary within this Realme which the same person will elect and choose there to remaine as a Sanctuary person abiured during his life and to be sworne before the Coroner so to doe and to be marked with a hot yron vpon the brawne of the thumbe of the right hand according to the statute of Anno 21. H. 8. 2. St. 21. H. 8. 2 And by the statute made Anno 1. Iac. 25. St. 1. Iac. 25 it was enacted That so much of all Statutes as concerneth abiured persons and Sanctuaries or ordering or gouerning of persons abiured or in Sanctuaries made before the fiue and thirtieth yéere of the late Quéene Elizabeths raigne shall stand repealed and be voide And so all Sanctuaries being adnulled and extinguished by the foresaid statute of 32. H. 8. 12. sauing churches and churchyards which were Sanctuaries by the common Law and sauing Welles Westminster Northampton c. erected and made by the said Statute of 32. H. 8. 12. 33. H. 8. 15. which are also sithence extinguished and adnulled by the foresaide statute of 1. Iac. 25. And therefore by no Lawes or Statutes that wée haue in force there be any Sanctuaries remaining neither can any person take the benefit of Sanctuary in any place or in any case where there is no such thing in rerum natura sauing churches and churchyards which neuer were Sanctuaries aboue fortie dayes at the vttermost and that but in certaine Cases and yet now out of vse But whether by the strict course of the common Lawes or any Statute in force they be now to any intent in force or not Quaere And for that so much of all stat as concerneth abiured persons or ordering or gouerning of abiured persons made before an̄ 35. El. be repealed and made void by the before rehearsed Statute of 1. Iac. 25. viz. the statute of 21. H. 8. 2. 22. H. 8. 14.
Appellée be within the lists ready to atchieue the combate That none but the two combaters shall be so hardie to stirre or make any noyse whatsoeuer he shall sée or heare whereby the battell may be disturbed And whosoeuer shall doe any thing contrarie to the said Proclamation Britton shall bée imprisoned a yeare and a day And they shall fight with weapons of small length béeing bare headed and hauing their hands and féet bare with two staues of one length horned at both endes And either of thē shall haue a Scutchian foure cornerd without any yron for that one shall not hurt the other with the yron Bracton de coron c. 21. And if the appellée can defend himselfe vntill Starres may be séene in the firmament then he shal goe quit from the appellant And also when the appellant and the appellée be in the field ready to ioyne battell or in the Battell it is a sufficient vanquishment if the appellant will confesse his appeale to be false 21. H. 6. 34. Fi. Cor. 98 for by this acknowledgement he shal be adiudged to be ouercome in the field and barred of his appeale for euer And on the other side if the appellée doe confesse himselfe in the field to be vanquished Bracton de coron c. 21. he shal be presently hanged As in an appeale the defendant pleaded not guiltie and made his choyce to trie it by Battel and as they were in the combate the appellant cast the appellée to the ground did grieuously beat him 19. H. 6. 35. and the Iustices sent for the appellée and when he was brought vnto them they demanded of him if he would any more of the battell or not who answered that he would not and said further that by the oath which hée had taken hée was not guiltie of the felonie whereof he was appealed to whom the Iustices said That if he would any more of the battell he should be laid in the same sort that he was when they sent for him but he answered that he would no more of the battell and therefore hée was presently hanged The reason why the def may be tried by battel in appeale 3 The reason why in an appeale the Defendant shall bée admitted to trie his cause by Battell is for that no euident or probable matter doth appeare against him to prooue him guiltie of the felonie whereof hée is appealed but onely the bare accusation of the Appellant which is no witnesse of credit in his owne cause And therefore séeing the appellant doth demaund iudgement of death against the Appellée by an appeale and hath no other probable euidence to attaint him but his owne accusation it is more reason that the appellant shall aduenture his life with the appellée for the triall thereof if the defendant doe require it than to put the triall thereof vpon the countrey which for default of euidence may be ignorant of the truth thereof and so giue a false verdit and by that meanes to leaue it to God to whom the truth of all things be knowne to giue the verdit in this cause by attributing the victorie or vanquishment to which partie it shall please him Counter-pleas to the battel 4 If the appellant haue any vehement presumption or sufficient testimony to prooue that his appeale is true it will bée a good counter-plea and sufficiently serue him to put the appellée from his triall by Battell As if the Defendant were indited of this Felonie before the appeale commenced 22. E. 4. 19. 20. E. 4. 6 14. E. 4. 7. 4. Ass p. 1 Bracton de coron̄ c. 18. Britton or was taken with the manoure or was taken with a bloodie knife or other weapon ouer the bodie of him that was slaine or néere vnto him whereby there was vehement suspition that he killed him or that the defendant did lie alone in the house with him that was killed or that he and others did lie in the house with him that was slaine and receiued no blowes or wounds in his defence or that he made no Huy and Crie after the théeues or murderers to apprehend them or that he will not confesse which of those that were in the house with him did kill the man that was slaine or committed the felonie that was done or that he receiued the man that was slaine into his house which was séene to goe in aliue and after was found dead there and no meane prooued how he came by his death Taken with the manoure 5 If the Defendant be taken with the manoure as in an appeale of death with a bloodie knife or other weapon he shal be barred from waging of battel And so it shall be if he be taken with the manoure in an appeale of Robberie 7. H. 4. 44 Fit cor 230 4. Ed. 3. 9 which manoure the plaintife must bring into the Court at the time when the Appellée doth offer to ioyne in battell or otherwise he must plead that the Appellée was taken with the manoure which manoure hee would haue brought into the Court but that he was not able to bring it or else hee may say that the manoure is in the possession of another and pray the Court to write for it To which manoure when it commeth into the Court the defendant shall haue no trauerse or other exception if the thing brought into the Court for the manoure doe not varie from those goods or things which be contained in the Appeale 22. Ed. 4. 19 And in appeale of robberie if the Appellée be apprehended vpon fresh suit by Huy and Crie and some of the money robbed be taken in his custodie this is a sufficient taking with the manoure to put him from waging of Battell Fi. Cor. 375 though the money cannot be knowne from other money And the reasons why in an appeale of robberie the defendant being taken with the manoure shall not wage battell against the appellant be for that by the Appeale the plaintife doth endeauour to attaint the Appellée of felonie and also to haue his goods againe And it may be that if it should be tried by Battell the Appellée might vanquish the Appellant in combate though the appellee be guiltie of the felonie and by that meanes also retaine his goods stollen without cause Taken with the manoure And the manoure was accounted so pregnant an euidence in former ages that the Iustices would as readily arraigne a prisoner vpon the manoure taken in his possession as vpon an indictment 6 It is also a good counter-plea to the battell for the Appellant to say Breaking of prison that the defendant when he was taken or arrested for that felonie whereof the appeale is sued Fi. Cor. 251 281 1. As p. 6. and therefore imprisoned did breake the prison and escaped or did what he could to escape for it is a very great presumption against him that he is guiltie of the felonie whereof he is
appealed in that hee did breake the prison and flie or would haue fled for the felonie and that hée did not relie vpon and trust to his innocencie and be iustified and tried by the law And the Appellée may reply to that counter-plea and trauerse the arrest for felonie or the breaking of the prison if he will or he may plead the Kings pardon for the breaking of the prison 1. As p. 3 Fi. Cor. 154 157. which trauerse or pardon being tried or allowed he shal be restored to his triall by battell 7 As there be impediments of the defendants part Le ts of trial by battell on the plaintifes part why he may not wage battell against the appellant so be there lets of the appellants part that the appellée cannot wage battell against him for as vehement presumptions of the defendants guiltinesse be causes to put him from waging of battell so be vehement presumptions of the appellants infirmities or weakenesse sufficient barres to exclude the appellée from triall by battell with him As if the appellant be within the age of fouretéene yéeres or aboue the age of thréescore and tenne yéeres Fi. Cor. 230 268. 22. E. 4. 20 or within orders or a woman or be maihemed whether he were maihemed by the appellée at the time that the saide appellée robbed him or at any other time or as some doe affirme whether he was maihemed by the appellée or by any other And some doe holde it for Lawe that if the appellant be aboue the age of thréescore yeares the appellée shall no more wage battell against him than against an infant within age or a woman But if the appellée will wage battell being of that age he may for though he may discharge himselfe of battell in respect of his saide age if hée will Bracton yet in that the Lawe hath giuen him his choice whether he will be tried by battell or by the Countrey hée may refuse the benefit of his age and wage battell Priuiledge of the Appellāts person 8 In some cases the priuiledge of the person of the appellant shall put the appellée from the triall by battel with him as the person of the King when the defendant is arraigned at his suit in an appeale for in an arraignment vpō an Indictment at his suit The King the partie indited shall not wage battell for the vehement presumption that the Inditement is true béeing found by the oathes of twelue lawfull men of the Countrey Plo. com 335. And as the person of the King shall be exempt from battell so shall all other to whom the King shal please to grant such an exemption As in former ages such a graunt hath béene made by some King of this Realme to the Citizens of London that battel shal not be waged against any of them in any appeale whatsoeuer brought by any of them Fi. Cor. 125 157. And if a citizen of London Citizens of London will bring an appeale against another and the defendant will offer to wage battell with him though the Appellant would refuse the benefit of this priuiledge and ioyne battell with him yet the battell shall not be performed for the Mayor and Comminaltie of London must sue a writ out of the Chauncerie directed to the Iudges where that triall should bée made rehearsing their libertie and pray allowance thereof to stay the trial by battell And though in the foresaid case and other cases Fi. Cor. 125 where counter-pleas to battell be pleaded the plaintife doth count that if the defendant will denie it he is ready to prooue it by his body yet the defendant in his plea cannot take aduantage thereof for those be but words of forme and not of substance and notwithstanding this conclusion he may make his trial by the countrie or otherwise as the law will 9 By the Statute of an̄ 6. R. 2. St. 6. R. 2. 6. it was enacted That if any Noble mans daughters Ladies or other women be rauished and after the same rape committed doe consent to the Rauishers the husbands of such women if they haue husbands or if they haue no husbands liuing then their fathers or other their next kinsmen in blood shall haue the suit to prosecute and may pursue against the same offendors and rauishers in this behalfe and to conuict them of felonie No wager of battell in appeale of Rape though the same woman after the rape doe consent to the rauishers And in this case the defendant shall not wage battell but the truth of the matter shall be tried by the countrey S. Felonies by Stat. 2. One fighting with seueral men 10 If one man doe appeale diuers men of one felonie 47. E 3 5. 19. H. 6. 35 and they all ioyne in battell with the Appellant he must fight with them all one after another if it doe not so chance that he is slaine by one of them before he can performe the battell with the residue which if it happen all the residue of the defendants shall be discharged of the appeale But if when the Appellant doth come into the field to fight with one of the Appellées Fi. Cor. 98 he will then confesse his appeale to be false towards him yet that shall not discharge the residue of the appeale but they shall procéed in their triall with the appellant And likewise if one man be appealed by three men of seuerall felonies and he doe plead not guiltie ready to trie it by his bodie in this case hee must fight with them all one after another and though he doe vanquish or kill one of them this will not discharge him against the other Bracton de cor ca. 19 But if thrée men doe appeale one man but of one felonie then if the Appellée doe vanquish one of them he shal be discharged against the other two And in that case if the said thrée Appellants be Approuers 7. Ed. 3. 12 then the other two shal be hanged 11 And all that is before written touching Triall by Battell may be applied as well to the appeale of an approuer An Appeale by approuer who confesseth himselfe to be a felon as to an appeale commenced by a true man Fi. Droit 57 12 If a man be appealed of felonie The Appellee wageth battell and then becommeth blinde and wageth battell with the appellant and after he doth become blinde by infirmitie and not by his owne procurement he shall be discharged of the battell and so it is in a writ of Right for in this case the appellée hath pleaded such a plea as the Lawe doth allowe him and his disabilitie to performe it commeth by the act of God But if after the Defendant hath waged battell with the appellant the same appellant shall become blinde by what meanes soeuer the appellée shall be arraigned at the Kings suite S. Appeales 96. Triall by Peeres WHen the Defendant hath pleaded Not guiltie to
Confederacies of the same committed vpon the land within this Realme And if any person happen to be indicted for any such offence done vpon the Seas or in any other place aboue limitted then such order proces iudgement and execution shall be vsed and made to and against euery such person so indicted as against Traytors Felons and Murderers for Treason Felony Robbery Murther or other such offences done vpon the land and such as shal be conuict of any such offeÌ„ce by verdict confession or proces shall suffer such paines of death losse of lands goods and cattels as if they had bin attainted and conuicted of any of the said offences done vpon the land No pennance for high Treason 5 The foresaid statute of West 1. maketh mention only of felons and felonies and therefore in high Treason whether it be by indictment 15. E. 4. 33 M. 3. 4. El. Dy. 205 300 or by any other meanes whatsoeuer the offendor shal not haue the said iudgement of pennance viz. of paine grieuous and durable but shall haue another iudgement that is to say as of a Traitor conuict No pennance for a man before attainted 6 If a man that is attainted of Felony be brought to the barre 8. H. 4. 2 26. As p. 19 and asked what cause he can shew why he should not be put to death and he will stand mute in this case he shal be hanged and not put to his penance for hee cannot put himselfe vpon an Enquest of felonie because he was attainted thereof before and so he is out of the case of the stat 7 If a man vpon his arraignement doth confesse the felony Standing mute after confession and before iudgement at another day he will stand mute by fraud and so it is found in this case he shal be hanged 14. E. 4. 7. and not put to his penance for his iudgement shall be giuen vpon his confession And so it is Demurring in law if he do demur in law vpon any point which is adiudged against him he shal be hanged for in both those cases he is out of the puruiew of the foresaid stat of West 1. And in like sort he shal be hanged and not put to his penance if he be indicted and arraigned for a murder or manslaughter committed within the Kings Palace or where hée doth abide according to the stat of Anno 33. H. 8. St. 33. H. 8. 12. if he do stand mute or will answer indirectly 8 In all cases where a man vpon his arraignement doth stand mute Inquirie of him that standeth mute before he shal be hanged put to his penance or otherwise suffer death it shal be inquired if he do stand mute by fraud or by the act of God for if it bee by the act of God 43. Ass p. 30 the Court ex officio ought to inquire if he be the same person and of all other pleas that he might haue pleaded if hée had not béene mute to haue staid execution M. 8. H. 4. 1. And this inquirie is but of office and shall be made by the Marshals seruants and others But if it be in case where an issue is ioyned by the consent of the parties and after when the Enquest doth come the prisoner doth stand mute there the Court shall charge the Enquest which appeareth therewith without putting any of the Marshals seruants vnto them and so change that which was a Iurie by the consent of the parties to an Enquest of office And their charge shall be to enquire of the time when he did speake and if he be mute of malice or in delay of his execution or by the act of God But this charge or inquirie ought not to be made or giuen where the prisoner did speak to the Court when he was at the bar and after the same day because he would not ioyne issue or challenge peremptorily aboue the number appointed to him by the law be adiudged to his penance for then it doth appear to the court that he doth it of malice 10. E. 4. 19 And the same law is if a prisoner after his confession or attainder hath continually remained in prison and is brought before the same Iustices before whom hée did confesse his felonie or was attainted to answer why execution should not be done of him and he will stand mute in this case there néedeth no inquirie to be made if he be the same person or not for that doth appeare to the Iustices by his continuall remaining in prison But it is otherwise if he goe at libertie after his attainder by abiuration outlawrie and such like 4. E. 4. 11. 14. Ed. 4. 7. 8. H. 4. 2. 9 The iudgement in the sayd penance The Iudgâ—ment in penance viz. in the said paine heauie and grieuous is That the prisoner shall be sent to the prison from whence hée came and put into a meane house stopped from light there shal be laid vpon the bare ground without any litter straw or other couering and without any garment about him sauing something to couer his priuie members and that he shall lie vpon his backe and his head shal be couered and his féet bare and that one of his armes shall be drawne with a cord to one side of the house and the other arme to the other side and that his legges shall be vsed in the same manner and that vpon his bodie shal be laid so much yron and stone as he can beare and more and that the first day after he shall haue thrée morcels of barlie bread without any drinke and the second day he shall drinke so much as he can thrée times of the water which is next the prison doore sauing running water The forfeiture without any bread and this shal be his diet vntil he die Fitz. Escheat 10. And he against whom this iudgement of penance shal be giuen shall forfeit to the king his goods but he shall forfeit no land Iudgement and Execution in Treasons Felonies c. HAuing written of Treasons Felonies shewed who be principals and who be accessories therein how the offendors therein are to be pursued by Appeales or inditements what pleas they may plead how they are to be tried that the truth of each persons innocency or guiltinesse may appeare I am now to treat of the iudgement execution which by the lawes statutes of this Realme must follow therupon As first Iudgement where the prisoner is acquit if he that is arraigned of treason or felonie be acquit thereof there is none other iudgement but that the Court doth discharge him paying his fées 2 The iudgement of a man attainted of high Treason is Iudgement in high treason of a man that he shall bée led backe againe to the place from whence he came and from thence be drawn vpon a hurdle to the place of execution and there be hanged by the necke
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