decorative border VIRTUTE DOCTRINA PARIT DE PACE REGIS ET REGNI. viz. A Treatise declaring which be the great and general Offences of the Realm, and the chief impediments of the peace of the King and the Kingdom, as Menaces, Assaults, Batteries, Treasons, Homicides, and Felonies, Riots, Routs, Unlawful assemblies, Forcible entries, Forgeries, Perjuries, Maintenance, Deceit, Extortion, Oppression: And how many and what sorts of them there be, and by whom, and what means the said Offences, and the Offenders therein are to be restrained, repressed, or punished. Which being reform or duly checked, Florebit pax Regis & Regni. Collected out of the Reports of the Common Laws of this Realm, and of the Statutes in force, and out of the painful works of the Reverend judges Sir Anthony Fitzharbert, Sir Robert Brooke, Sir William Stanford, Sir james Dyer, Sir Edward Coke, Knights, and other learned Writers of our Laws, By FERDINANDO PULRON of Lincoln's Inn, Esquire. LONDON, Printed for the Company of Stationers. An. Dom. 1609. Cum Privilegio. The Preface to the Reader. SEeing we all have received, and allow it for truth, That the ignorance of the Law doth excuse none of offence; and also, That the Law doth help the watchful, and not the slothful man: therefore it behoveth each person, first to seek the knowledge of those Laws under which he doth live, and whereby he is to receive benefit, or to sustain peril, and next, with all industry to frame his obedience unto them, or humbly to submit himself to the censure of them. And though we find by experience, that some men by the sluggishness of their natures, others by the carelessness of their own welfares, and a third sort wholly given over to pleasures and vanities, do little respect to know, and less to obey our criminal & capital Laws, being things of great moment and importance, and therefore do ofttimes taste the smart of them, and repent their follies when it is too late: Notwithstanding, for that there be many others which do endeavour to read them, and employ their industry to conceive them; some for the increase of their knowledge, others, in their actions to be directed by them, and many for the eschewing of the penalties of them, & yet do not wholly addict themselves to the study of the Law: therefore, as near as I can, to satisfy the desires, and to give contentment to all the persons aforesaid, I have done my endeavour in this Treatise, to lay open to all them that are willing to read, and thereby to know, which be the offences that the Law doth in general terms condemn, and do most tend to the breach or blemish of the peace of the Realm, and to the dislike of all the good members thereof, and what punishments she hath imposed upon the transgressors therein, and by whom, & in what manner to be inflicted. If one man do pretend title unto, & sue to recover any land, lease, or goods of another's, all strangers stand indifferent, and meddle no further, but only wish well to him that hath the best title, & desire that justice may be done, and right may prevail: but if a Treason, Murder, Burglary, Robbery, Theft, notorious Riot, Forgery, Perjury, Extortion, or Oppression be committed, than each man in conceit maketh it his own case, & doth in a sort take it to be done to himself; and all persons generally do find fault with the transgressors therein, they exclaim of them, condemn them, & in their hearts cry Crucifige upon them. And therefore the crimes aforesaid, & such like, may be termed general offences, partly, for that they do redound to the general dislike of all the good members of the realm; and partly for that they tend to the breach or blemish of the peace, being a thing generally embraced or wished for, & which the king & all his good subjects are bound, and in a sort have undertaken to maintain: and therefore as the king hath an interest in them, or jurisdiction over them all, to punish the offenders in them, as transgressors of his laws, and disquieters of his peace, and people, so hath every other well governed member of the Commonweal, a care and regard of them, foreseeing that he may receive the like wrong, and taste the same abuse, by the said, or other such malefactor's means; and for that cause doth proclaim open war against them, and is as desirous to root them out, as the husbandman his thistles out of his good corn, or the gardener his nettles from his sweet flowers. Wherefore, seeing a guilty person in any of the crimes aforesaid, is persecuted, in deed, or consent, by all wishing well to the Weal-public, or their own private estates: it is requisite that good men which eschew to offend for the love of virtue; and evil men, which fear to offend for the dread of punishment, should both know those laws which they are to make use of, and the penalties which be threatened to the infringers thereof, to the intent that the good man having a will to stand, may trust to his feet, remain firm, and continue his integrity; and the evil minded man beginning to stagger, may bend his endeavour to stay, and slide no further. All which by this work (good Reader) I labour to perform, to the intent, that the well meaning man being made the better, and he that before was lewdly disposed, the less hurtful, may both at the last meet and join in seeking and furtherance of that peace which will be comfortable to the King and Realm, and pleasing both to God and man. The question may be asked me, Wherefore I entitle my Book, De pace Regis & Regni, and yet do chief make mention therein, of those crimes which do most disturb the peace of the King and the kingdom, and so make the Book and the title as it were oppositum in subiecto? Whereunto I answer, That the peace whereof I do write, is not obtained by the said offences committed, but by the laws that do punish or restrain them, which laws also I have set down at large in this Treatise, being the principal mark that I desire the Reader to behold: As, many Physicians have written large volumes of several infirmities in man's body, and then expressed which be the Medicines to cure them; not to the intent to allure the Reader to seek the disease, but how to prevent it before he hath it; or how to be rid of it when he hath taken it. And several Divines have composed whole Tomes, of Pride, Malice, Covetousness, and such like offences, not to the intent to entice the frail man to fall into them, but to show the enormities of them, how grievous they be in God's sight, and how he hath threatened deeply to plague the offenders therein, to the end they might dehort and discourage transgressors from them, and might allure and win them to humility, forgiveness, patience, charity, repentance, and other virtues. And so I name my Book of the quiet event, and not of the persecuting cause; of the patiented cured, and not diseased; of the sinner reclaimed, and not persisting in vice; of that peace which I would have, and wish might flourish, and not of those Laws that by awe do work it. For these Laws whereof I do write, and some others, How the Laws do preserve the peace of the King. do preserve the peace of the King, in that they do assure us who is our King, do settle and continue the Crown on his head, do put the Sword and Sceptre in his hand, do attribute to him several Regal Titles, Honours, and Prerogatives, do bind his Subjects to perform all loyalty, duty, and obedience unto him, and lay heavy punishments upon the withstanders or deniers thereof. These Laws be as his Privy counsellors, incessantly respecting the preservation of his person, peace, Crown, and dignity: These be as his Gentlemen Pensioners, attending daily in his presence, to do him all princely honour and service: These be as the Yeomen of his guard, waiting day and night to protect his person in peace, from all forcible assaults, and other perils: These be as his great and goodly Ships, which lie hovering on the Seas, and his strong castles and forts of defence, which stand firmly upon the land, wherewith he doth prevent foreign hostility, repress inward tumults, and so keep himself and his people in peace: These be as the judges, justices, Sheriffs, Constables, and other Officers, watching every hour and moment in all the Shires, places, corners, and creeks of the Realm, to repress outrages, and to maintain his peace: And lastly, these be to him as his mint, by which he doth coin gold and silver to defend himself and his people in the time of war, and to support his honour and royal estate in the time of peace. How the Laws do preserve every person in peace. And also by the protection of these Laws every good member of the whole kingdom doth receive the like benefit of peace: for in fear of them each person doth enjoy his life and limbs in peace, and is defended from the bloody minded murderer, and manqueller, and the rage of the furious quarreler and fighter: And in fear of them the housekeeper resteth in peace, with his wife and family under his own roof, without being assaulted by burglers: And in fear of them the traveler journieth in peace from one country to another, without being spoiled by robbers: And in fear of them the Graziers cattle do feed quietly in his pasture, without being stolen by thieves. The terror of the Laws do ofttimes restrain choleric or contentious spirits from Batteries, Riots, Routs, Forcible entries, and other outrages; and covetous and greedy persons, from practising or procuring of forgeries; and godless and irreligious people, from persuading or committing of perjuries; and false and guileful persons, from putting in ure of frauds and deceits; and impudent and shameless men, to wrest from others by bribery, extortion, or oppression. And divers there be, who neither by the laws of God, of nature, or reason, will be bridled and reduced to virtue, yet by the penalties & fear of some of our capital and criminal laws, do yield to be kerbed, & refrain from the practice of their vicious lives, of whom the saying of the Poet may be verified, Oderunt peccare mali formidine poenae. And so I may truly verify, that the Laws whereof I do write, be the means of the peace of the K. and the kingdom: And so long as the offences in this Treatise specified shall be reform, or duly checked by these Laws, Florebit pax Regis & Regni. But though peace be mine end, and peace the mark that I rove at, yet there be some that think, that the divulging of our criminal and capital Laws, in our mother tongue, will not be a mean of that peace which I do so much aim at, for that, as they surmise, the same Laws may then be misconstrued by every ignorant and unlearned person, that can read English, and the sense and meaning thereof may be mistaken, the reader himself may be led into error, and others may be misinformed by his imbecility of judgement, seeing the same reader is able only to look into the letter of the law, and not to discern of the intent of the makers, or of the true sense thereof: And do allege for their reason, the same that was objected at the making of the Statute of Ann̄ 34. H. 8. St. 34. H. 8. ordained for the restraint of several persons to read the Scriptures in the English tongue, for fear of raising of heresies and schisms in God's church, surmising then, that ignorance was the mother of devotion, as these men now would make her of obedience: But if the same parties will look back, they shall find the said Statute repealed, St. 1. E. 6. 12 and by the learning and practice of the former, & our present age, the reason aforesaid refelled. Men may not surcease to read the Scriptures, because the devil misconstruing the Psalm, Psal. 90. Math. 4. would have persuaded thereby jesus Christ the son of God, to cast himself down headlong from the pinnacle of the Temple: Nor for that the Saducees being deceived in a place of deuteronomy, Deut. 25. Math 22. would have inferred by the woman which married seven brethren, that there is no resurrection of the dead: Nor for that S. Paul in his Epistles did write certain obscure things to be understood, 2. Pet. 3. which unlearned and unconstant men depraved as they did other Scriptures, to their own destruction: For this depraving, misconstruing, or wresting of the laws of God, or man, out of their true meaning, & proper sense, doth convince the reader of ignorance, pride, self love, or folly, and doth nothing impeach the credit of the same laws, nor the necessity or conveniency of them, nor the considerate judgement of the lawmakers. We perceive by the questions, demurrers, & arguments, which oft do arise amongst the reverent judges, and learned men in the laws of our Realm, touching the construction and true meaning of divers of our Statutes and common laws, that the old Proverb is true, Nemo nascitur artifex, viz. No man is borne unto, or at the first can obtain the perfect understanding of any learning, science, or art whatsoever, but every person beginneth in ignorance, & then increaseth in knowledge by little & little, according to his capacity and diligence: For, as the Pomander doth give a pleasant savour only when it is rubbed, and the flint doth yield fire only when it is beaten; so knowledge in all laws and other learn, is obtained only by much study, due consideration, & deep digestion thereof, as an hole is made in the hard stone, by the often dropping of the soft and liquid water. And therefore, if the busy searcher of other men's knowledge, and carper at their ignorance, will with the eyes of his mind look into the old and new Testament, and every book, place, and particle thereof, and into the works of every Rabbie, Counsel, Father, Doctor, and other Expositor of the same, thereby to learn which parts of the said Testament be written Hystorically, which prophetically, which metaphorically, which hyperbolically, and which literally, and how every of them are to be construed & taken: and into all the books of controversies in religion, which have been written in all former ages, and this our present time, and all the reasons produced for the maintenance of each several persons opinion, and then will bend his care upon the church of God, and learn by the report of the Ecclesiastical Historiographers, related from the first creation of man until this day, when, where, by whom, & whose means she hath flourished and increased, and again, when, where, & by what means she hath been obscured and blemished: And also will have respect to the Cosmographers and Chroniclers of the several kingdoms and provinces of the world, who did describe the situation of them, the nature and disposition of the people of each country, their form of government, their several laws and customs, the fertility and barrenness of their soils, and how in times they have flourished and decayed: And further, will revolve in his mind the hundreds of volumes which have been written of the Common and Civil Laws, and of the rites of other kingdoms, nations, and cities: And also will take notice of the infinite number of singular men, which in several ages have written learnedly and profoundly, of Grammar, Logic, Rhetoric, Philosophy, Physic, Arithmetic, Geometry, Music, and Astronomy, and published to all posterity the several grounds, principles, and maxims of every of them: And moreover, will diligently hearken unto the number of volumes collected in several ages, of the procreation, nature, and course of life, of all the beasts of the field, the worms of the earth, the fowls of the air, and the fishes of the sea: and of the beginning, increase, & virtue of all trees, herbs, roots, plants, & things vegetative: and of the operation of all stones, mines, quarreyes, metals, and other things which grow upon the face of the earth, or lie hidden in the ground: And further, will take a view in his memory of the millions of books which have been written in the Syriake, Chaldie, Hebrew, Greek, and Latin tongues, for the increase of all sorts of learning and knowledge: And lastly, will give his heart leave to think of the huge multitude of Treatises, which have been composed in verse, mitre and rhyme, in a sweet and harmonical tune: and then if the same curious carper at other men's ignorance, after his said due consideration had of all the writings and writers aforesaid, and of their several deep wisdoms, knowledges, and understandings in the arts, sciences, and things aforesaid, and how necessary, beneficial, or comfortable they be to man, will return home again, and look into his own breast and bosom, and examine himself seriously what he doth lack of all the arts and sciences aforesaid, and also how far from perfection he is in his own profession, I doubt not but whatsoever before he thought of himself, he will now find that he hath but a small drop, spark or particle of learning or knowledge, in respect of that he wanteth, and which he may perceive to have been in some others, and that he hath no cause to malign the ignorance of others, but rather to pity his own, and to say with the old Philosopher, Hoc solum scio quod nihil scio. Cratippus. Many wholly devoted to their own opinions, do desire to maintain Paradoxes, & to strain all their wits to defend them, though their assertions seem never so improbable, and their arguments never so weak to others: as appeareth by Rodolphus Agricola, who did write a book De vanitate scientiarum, which the whole wisdom of the world in all ages hath so much admired and honoured: and by Erasmus Roterodamus, who compiled a Treatise Of the praise of folly, attempting therein, to prove by a far fetched argument, that the folly of man and woman together, is the only cause of the propagation and continuance of mankind upon the face of the earth, and that the fault and folly of Adam in eating of the forbidden apple, contrary to God's commandment, being the breach of the peace between God and man, was the cause that moved jesus Christ the son of God, to descend from the bosom of his father, to take flesh of the blessed virgin Marie, to suffer his passion for the sins of man, and so to renew peace between God and man. And therefore we must not insist upon the private conceits, or particular fantasies of a few opinative persons, but shall do well rather to observe what care our fathers from one age to another, did take, and what ordinances they established in Parliament, that several penal, criminal, and capital laws and statutes should be read or proclaimed in Churches, St. 25. E. 1. 3 St. 7. R. 2. 6 St. 33. H. 8. 9 St. 5. El. 1. in Fairs, in Markets, at the general Assizes, and Quarter Sessions of every county, at Leets, and lawday, and in the Halls of every Inn of Court, and Chancery, and how the same is continued, and duly put in practice at this day, to the intent that the same laws, and the penalties thereof, should be heard, learned, known, and understood by all sorts of persons willing to perceive and apprehend the same. But if there be any, who persuading themselves that they do search further into the bowels of reason or experience, than all our foresaid lawmakers and others have done, and will by disputes encounter the publishing or reading of our foresaid laws in the English tongue, I must and will patiently content myself, suffer them to affirm what they please, and say with mine old Schoolmaster Cato, Arbitrij nostri non est quid quisque loquatur. OF MENACES, ASsaults, Batteries, Imprisonments, Maihems. 1VNdertaking to write of the peace of the King, and the Kingdom, and the chief impediments thereof, and to declare which be the great and general offences of the Realm, I have thought it good to begin with the very root and principal cause of the same, which are menaces, threatenings, and other bitter words, being as streams gushing out of contentious spirits, and venomous tongues, The evil fruits of menaces. their natural fountains and spring heads, from whence do ensue sometimes assaults, batteries, riots, routs, unlawful assemblies, forces, and forcible entries; some other times forgeries, perjuries, and oppressions; and ofttimes maihems, manslaughters, and murders. And therefore king David, having felt the sting of the bitter curses, opprobrious slanders, and sharp menaces of king Saul, Shemei, Nabol, and others, did very aptly and effectually decipher evil tongued persons by these words: Psal. 13. Sepulchrum patens est guttur eorum; linguis suis dolose agebant, venenum aspidum sub labijs eorum: Quorum os maledictione & amaritudine plenum est: Veloces pedes eorum ad effundendum sanguinem: Contricio & infoelicitas in vijs eorum, & viam pacis non cognoverunt. And again, speaking in their persons, Psal. 11. he saith, Qui dixerunt, linguam nostram magnificabimus, labia nostra a nobis sunt, quis noster dominus est? And for that case the same king, well observing the sea of mischiefs, miseries, and calamities, which daily do flow from evil tongues, made his humble prayer unto God, to grant him power to be watchful of his own tongue, Psal. 140. saying, Pone custodiam ori meo, et ostium circumstantiae labijs meis. And when he perceived that God had heard his prayer, Psal. 38. he said joyfully, Dixi, custodiam vias meas ut non delinquam in lingua mea, viz. I have made a full resolution, and promise to myself, that I will so use and govern my speech, that I will never offend in my tongue. And the said king telleth us plainly, that there is no other means to have the comfort of this life, Psal. 33. and to enjoy good days in this world, but to restrain the tongue from speaking of evil, the lips from pouring out mischief, and to seek peace and follow it. Prou. 18. And his son, king Solomon, confirmed the same, saying, Vita est mors in manibus linguae. And though slanderous speeches, and menaces, be but words, and may be taken but only as a smoke, a breath, or blast of wind and so to vanish and be dispersed in the air like dust; yet experience doth teach us, that by the imbecility of man's judgement, and the corruptionn of his nature, they be used as firebrands of private and open grudges, quarrels, conspiracies, & most other tragical & turbulent stratagems: and thereby a verbis ad verbera perventum est. And we seldom hear of any the said enormities effected, but they took their beginnings of menaces, threats, slanders, or other evil words: which offences growing by menaces, & other speeches tending to contention, and the breach of the peace, the whole body of this realm having deeply tasted the smart thereof, & desirous to prevent the like, by a stat. made ann 18. Stat. 18. E. 3. E. 3. did ordain, that the K. justices, amongst other articles, shallbe sworn, in case any of what estate or condition they be come before them in their Sessions with force & arms, or otherwise, against the peace, Sta. 2. E. 3. 3. or against the form of the statute thereof made, or disturb execution of the common law, or to menace the people that they may not pursue the law, they shall cause their bodies to be arrested & put in prison. Menacers shallbe imprisoned. And in case they be such, that they cannot arrest them, the same justices shall certify the K. of their names, & of their offence speedily, so that he may thereof provide convenient remedy. There is another foul puddle that ouzeth from the same corrupt gogmire, & distilleth out of a heart likewise infected with malice & envy, but is devised and practised by another mean than the former, which is by libeling, secret slandering, or defaming of another: for this privy backebiter doth not by words impeach his adversary in so manifest and turbulent manner, as the choleric menacer in his fury doth, but seeming to sit quietly in his study, he doth more deeply pinch him, & infixeth a more durable wound into his fame, & credit, than the other boisterous fellow doth into his body, who in a moment threateneth to do more, than peradventure he after is willing, or dareth to perform in an age. The menacer layeth open his name, & his grief, and standeth in the face of his enemy, & discovereth the corrosive of his mind, & doth thereby give a forewarning to his adversary to provide for, & defend himself: But this secret canker the libeler, concealeth his name, hideth himself in a corner, & privily stingeth him in fame, reputation, & credit, who then neither knoweth from whom, or upon what cause he receiveth his blows, nor yet hath means therein to defend himself. And whether this libeling, Co. li. 5.125 secret slandering or defaming, The enormities of privy defaming and libeling. be against a public magistrate, or a private person, yet it may tend to the breach of the peace, to the raising of quarrels, & effusion of blood, & so may be a special impediment of that peace which all good policy endeavoureth to maintain. For if it be against a public magistrate, it is a great scandal & offence to the king, his chief magistrates, & the whole government of the realm, to assign such an officer to rule and govern others, who himself is void of government, and shall deserve to be impeached with such crimes as he shallbe taxed with, or shallbe imputed unto him by such an infamous libel. And if it be but against a private person, yet seeing that a libel, or other note of infamy, is invented to defame him, to tread his honour & estimation in the dust, to extirpate and root out his reputation & credit from the face of the earth, to make him a scorn to his enemies, & to be derided & despised by his neighbours, it doth greatly kindle the wrath of him, & of such as be of his kindred, alliance, & true friendship, & urge them to revenge: whereupon do ofttimes ensue grudges, quarrels, frays, combats, & manslaughters. Sometimes the malicious defamor poureth out his venom in writing, by a scandalous book, ballad, epigram, or rhyme, either in mitre or prose: some other times by sons, scoffs, jests, or taunts: & divers times by hanging of pictures of reproach, signs of shame, or tokens of disgrace, near the place where the party thereby traduced doth most converse: as the picture of the gallows, pillory, cucking stool, horns, or other such like. In which cases the law hath provided, that the party delinquent, when he is found out & discovered, shallbe sharply punished: for he may either be indicted for the same offence by the ordinary course of the common Law: Or else a Bill may be exhibited against him in the Star chamber, The punishment of a secret Defamor. where he shall be punished according to the quality of his demerits, by fine & imprisonment; and if it be an exorbitant offence, then by Pillory, loss of his ears, whipping, or etc. or the party grieved may have an Action upon the case against the offendor, & recover his damages. Lib. Intr. fol. 13. And in this case it is not material whether the Libel be true or false, or the party scandalised thereby be living or dead, or be of good name, or evil: for though the libel be true, & the party defamed be evil, yet our good Laws be devised to punish him, & such like evil men by a due course of justice, after his offence is presented, inquired of, tried, & proved to his face before lawful magistrates thereunto assigned, and he is not to be carped at, accused, & condemned in a corner behind his back by any other private person, who intrudeth himself without warrant to be a censor of manners, & rather seeketh the discredit of the party, than the reformation of his faults: for this secret searching into, & sifting of other men's conditions, diving into their offences, & divulging them to their discredits, doth convince the offendor to be a man of lewd disposition, to have made shipwreck of his conscience, & doth brand him during his life with the name of an infamous Libeler, or slanderous backbiter. And therefore by Gods own commandment it is specially given in charge to every of his people: Non maledices principi populi tui. Non fasias calumniam proximo tuo. Psal. 100 And king David saith, Detrahentem secreto proximo suo, hunc persequebar. And God doth threaten, that he himself will take revenge of the slanderer, Psal. 49. saying: Sedens adversus fratrem tuum loquebaris, & adversus filium matris tuae ponebas scandalum, haec fecisti, & tacui, exictimasti inique quod ero tui similis, sed arguam te, et statuam contra faciem tuam. And as infamous libeling, & secret defaming, be oft times the causes of grudges, seeking of revenge, and thereby of quarrels, in like sort words of slander, or speeches of disgrace, openly published to the face of an other, or behind his back, be also firebrands of variance, dissension, fight, and the shedding of blood, and so be special means of the breach of the peace. Action upon the case for slander is contra pacem. As it may partly appear by the words of the kings writ always inserted in an action upon the case, brought by one person against an other for speaking of slanderous words, in which writ it is supposed that the words were spoken, Ad grave damnum ipsius querentis, & contra pacem nostram. And the same is further proved by the words of the statute of Ann 2. St. 2. R. 2. 5. R. 2. whereby it is ordained, That because publishing of false news, tales, and lies of Prelates, Dukes, Earls, Barons, Slandering of Noble men or great Officers. & other noble and great men of the Realm, or of the Chancellor, Treasurer, Clerk of the privy Seal, Steward of the King's house, justice of the one Bench, or of the other, or of other great Officers of the Realm, debate, discord, or matter of discord or slander may rise between the Lords & commons, whereof great peril may come to the Realm, and speedy subversion & destruction of the same: therefore it was enacted by the said statute, That if any do commit the before specified offence, he shall be taken & imprisoned (according to the statute of Westm 1. St. 3. E. 1. 34. ) until he hath brought forth him which did speak the same. St. 12. R. 2. 41. And further by an other statute made Ann 2. R. 2. it was moreover enacted, That when the said offendor is taken & imprisoned, and can not find him that spoke the words, than he shall be punished by the advise of the Council. And to the intent that such evil disposed persons, which by their lewd speeches & slanderous words or reports, do endeavour to break or disquiet the peace of the Realm, Sta. 1. & 2. P. & M. 3. might the sooner be inquired of, found out, & punished, By a stat. made Ann 1. & 2. P. & M. it was further established, That the justices of peace in every shire, city, & town corporat, within the limits of their several commissions shall have full power to examine hear & determine the causes abovesaid in the said 2. acts of 3. E. 1. & 2. R. 2. specified, & to put the said 2. stat. & every branch in them contained in due execution that condign punishment be not deferred from such offenders. And besides the before mentioned penalties assigned to be inflicted upon transgressors by the foresaid stat. every noble man, or great officer of the realm, against whom any scandalous words, 11. El. Dy. 285. Co. li. 4. 12. false news or lies be spoken, may prosecute against the offendor an action De scandalis magnatum, & recover damages against him. And in like sort may every inferior person for any such like words of infamy spoken against him pursue an action upon his case against the offendor & recover his damages. And further if one person shall exhibit a bill in the Star chamber against an other, & amongst other things charge him with murder, piracy, robbery, or other felony, or to be a procurer thereof, or accessary thereunto, or with any other offence which is not examinable in the said court, the defendant in the said bill may prosecute against the complainant therein an action upon the case & recover his damages; for this bill was exhibited of malice by the complainant to remain of record in the said court, to the infamy & slander of the defendant, & not to punish him for the said offences suggested in the sane bill by a course of justice, seeing the court of Star chamber hath no authority to inquire of, or punish the same offences. But if the complainant doth suggest in his said bill of complaint any matter against the defendant which is examinable in the said court, than no action upon the case is maintenable against him by the defendant therefore, though the matter surmised be merely false, for it is done in a course of justice: Et sub judice lis est, whether the matters suggested be true or false, until they be proved. And in former ages speeches tending to the reproach of others were so odious that K. Edgar ordained that his tongue should be cut out which did speak any infamous or slanderous words of an other. Edg. Lex. 4. But though it be true (as is aforesaid) that infamous libels, secret defamations, or public slanders, or reproaches, be oft times more offensive to the party taxed thereby, then open menaces and threats of violence are: Yet seeing for the most part menaces springing out of distemperate & choleric humours do more hastily break forth into further fury & extremities tending to the breach of the peace, then libeling & secret defamation do, which must have a breathing time to be inquired of, bolted forth, and then to be punished, Therefore I will omit to write any further of libeling or defamation & go forward with menaces etc. & tota sequela sua. 2 Menaces, assaults & batteries be things of several natures, & yet for the most part they tend to one effect, viz. to hurt him against whom they are bend, menacing is a threatening of some hurt to be done or procured by the speaker or some other by his means to the person of the hearer, or his wife, servant, tenant or other, The difference of menace, assault and battery. whereby he receiveth loss, or hurt. Assault is an attempt to execute the thing menaced by force & violence. Battery is the performing of the thing before threatened, viz. the beating of him that was first menaced, & then assaulted. Menacing beginneth the quarrel, assaulting doth increase it, & battery accomplisheth it: menacing layeth together fire & coals in the house of peace, assault bloweth it & maketh it burn. And battery doth endeavour to consume the whole building to the ground. And therefore because some sorts of menacing, assaulting, & battery be professed enemies to the peace whereof I do write, I will endeavour plainly to express which be those menaces, etc. that the law doth inhibit, & in what sort, & by what means she doth restrain, & punish the offenders therein. 3 The law hath always had that special regard to the preservation of the peace of the Realm, and of every member thereof, that she could not endure, neither would suffer one person so much as to menace or threaten another of life, or member, or of any thing tending to the breach of the peace: And therefore she hath not only assigned in all countries & places of this realm, Sheriffs, justices of peace, Constables, Thirdboroughs, and divers other officers, to be as watchmen, continually attending, & bending their cares & industries, to preserve the peace, and to defend each person from the violent sting of menace, assault, or battery: but also she hath given and provided for him who is only menaced, 40. E. 3. 40. an action of Trespass (as she hath done for him who is assaulted or beaten) whereby he shall recover his damages: so that the same menacing do tend to the hurt of him who was menaced, his servant, tenant, or any other person, by whom he liveth, or receiveth benefit. And therefore the plaintiff in an action of Trespass of menace, may declare, That he is an Attorney, The declaration in Trespass of Menace. and that in respect of the defendants menace, he durst not attend his client's suits, from such a day in M. until such a day in O. or that he is a husbandman, and could not attend or oversee his husbandry: or that he is a bailiff, or collector of rents, and could not in respect of such menace, 37. H. 6. 3. by the space of many months, attend his bailiwick, collection of rents, or other businesses: or that in regard of such menacing, 30. Ass. p. 14. he was not able, nor durst travel abroad, to apply his trade, or get his living, without such force and defence, as his estate was not able to maintain. As the collector of a fifteen brought an action of trespass for the king and himself, 27. Ass. p. 14. against one, and declared, That the defendant did so rebuke him, Rebuke in Assault. that he durst not tarry in the town to gather up the fifteen, for fear lest the defendant would have beaten him. And though the defendant did not beat him, yet this rebuke was adjudged an assault, and the plaintiff recovered an C. s. in damages. And in like sort one brought a bill of trespass in the Common pleas, for the king and himself, 30. Ass. p. 14. and declared, That whereas he was coming towards the Common pleas, to answer in a plea of land, the defendant came, and did so beat, assault, and menace him, that he durst not bring his writings, or come thither, without great charges, in contempt of the king, contrary to his peace, & to the damages of the plaintiff etc. Whereunto the defendant pleaded not guilty. And the defendant was compelled to find pledges of his good behaviour, & for the peace, & that he should not meddle with the plaintiff, by himself, nor by any others, Fitz. Trespass 159. openly nor secretly. In an action of Trespass the plaintiff declared, That the defendant so menaced him in one county, that he could not do his business in another county: and this was adjudged a good declaration, and it was ordered, 37. H. 6. 2. that the issue should be tried in the county where the menace was, for there was all the trespass committed, & the other county was put in only to increase the damages. Li. Intr. 592 22. Ass. p. 76. 20. H. 7. 5. 4 And in like sort, if one man do menace or threaten the servant of another, Menacing a servant, whereby he departeth, of life or member, in such sort as the same servant doth departed from his master, whereby the master doth for a time lose the service of his said servant: in this case the master shall have an action of trespass, & declare against him that did so menace his servant, That he made assault upon his servant, did beat him, wound him, and evil entreat him, & so often menaced to kill & dismember him, & did him so many injuries & wrongs, that his said servant durst not for such menaces, & for fear of being killed or maimed, attend his business (viz. the bailiwick of his husbandry, his service in husbandry, or keeping of his horses, beasts, sheep, etc.) And so his said business & service lay undone, & the said pl. lost the service of his said servant, from the 20. day of M. until the 20. day of N. them next following, to his great damage, & against the K. peace, whereof he complaineth, that he is endamaged 20. l. And so note, 7. E. 4. 24. 27. Ass. p. 11. that a man shall not have an Action of Trespass for menace only, unless he hath also thereby some other loss or hurt: for the menace and the hurt which the party doth sustain thereby, do make the Trespass, and do give cause of the action of Trespass. But it is otherwise, 20. H. 7. 5. if a man beat the wife or villain of another, for in those cases, the party wronged, viz. the husband, or Lord, shall have an action of Trespass, though he hath received no loss, nor hindrance in commodity: For he must join in suit with his wife, to recover recompense for the battery and wrong done unto her by the trespasser: and also he may punish him by action of Trespass, who beateth his villain, as he may do him who beateth his horse, cow, ox etc. Menacing a tenant, whereby he departeth. 5 And the same law is, if one man do so menace of life and member, Li. Intr. 592 20. H. 7. 5. 9 H. 7. 7. the tenants of another, which do hold of him certain lands and tenements at will, paying to him therefore certain yearly rent and services; in respect of which menace, the same tenants do departed from their said tenements, and leave the said rents unpaid, and the same services undone: In this case the Lord, or owner of the same tenements, may have an action of Trespass against such menacer, in the King's Bench, or Common Pleas, and declare of the said menacing of his tenants at will, of their departure from his tenancies thereby, and the loss and prejudice that he hath sustained by his rents unpaid, and services undone, and he shall recover damages accordingly. And in this case it is a good plea for the defendant, Menacing a Lords freeholder. to plead, That those tenants of the plaintiffs, which departed from their tenancies, were the freeholders, and the freehold tenants of the plaintiffs, and not his tenants at will: For if it be so, the plaintiff shall recover nothing against the defendant, because he hath other sufficient remedy to recover the services of his freeholders, or the land in stead of them. And so it is, to plead, that the tenants which departed, 21. H. 6. 31. were tenants for term of years. 6 In the cases aforesaid, he that is wronged in his own person, his servants, or tenants, by the menace of another, whereby he sustaineth loss, shall have his action of Trespass against the offendor, for the said menace, and the hurt which he receiveth thereby; and the king also shall have a fine of the offendor, for that the menace was of life and member, and suggested to be done vi & armis, and so tended to the breach of the peace. But if it be such a menace as doth not tend to the breach of the peace, Menace which is iustifyable. than the law is otherwise: for then the party menaced, shall neither have an action of Trespass, or other remedy against the menacer, neither shall the king have a fine of him. As, if a man die seized of certain lands, and a stranger will abate, 22. H. 6. 48 21. H. 6. 26. 9 H. 7. 7. and then the heir of him who died seized, will enter upon the stranger, and menace and threaten him, That if he will not departed from the possession of the same land, that then he shall repent it, as the law will allow: this is menace justifiable, for that he hath said no more, than the law will allow him to perform. And in like sort, if A. be disseised of his freehold, ejected out of his term of years, Li. Intr. 555 dispossessed of his goods, beaten, assaulted, or evil entreated by B. if in this case A. will say unto B. That he will not endure those wrongs, nor put them up at his hands, but will prosecute suit according to the law of the Realm, in the sharpest manner that he can, for the redress of those injuries, and for the due punishment of B. this is menace justifiable, and nothing tending to the breach of the peace: for A. hath said nothing, but that the law will permit him to do. And in these cases the menacer doth yield to make the law judge of his wrongs, and that also in peaceable manner: but in the former cases, the menacer doth threaten to be the revenger of his own injuries, and so to be his own judge, and that also in a forcible and unlawful sort. And so it is, if one man own money to another, and at the time assigned doth not pay, if the creditor do say to the debtor, that he will sue him according to the course of law, 16. E. 4. 7. and imprison him for his debt, this is menace justifiable, for the law doth allow him to do it. 7 As menace in words is accounted in many cases to be a mean of the breach of the peace, and so punishable by the laws of the realm: so menace by deeds, by behaviour, gesture, wearing of armour, or unusual and extraordinary number of servants or attendants, is accounted to be in affray and fear of the people, a mean of the breach of the peace, and so punishable: for the law doth intend, that he which in a peaceable time doth ride or go armed, without sufficient warrant or authority so to do, doth mean to break the peace, and to do some outrage: seeing she is able, and will be always ready to defend every member of the common weal, from taking or receiving of force or violence from others, if himself do not give cause to the contrary: Whereupon by a Statute made at Northhampton, St. 2. E. 3. 3. anno 2. Ed. 3. it was enacted: That no man great nor small of what condition soever he be (except the king's servants in his presence, & his ministers in executing of the king's precepts, or of their office, and such as be in their company assisting them, and also upon a Cry made for arms to keep the peace, and the same in such places, where such acts happen) be so hardy to come before the king's justices, or other the king's ministers in doing their offices, with force and arms: nor bring no force in affray of the peace, nor to go nor ride armed by day nor by night in fairs, markets, Menace by going or riding armed. nor in the presence of the justices, or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the king, & their bodies to prison, at the king's pleasure. And that the king's justices in their presence, Sheriffs, and other ministers in their bailiwicks, Lords of franchises, & their bailiffs in the same, & mayor's & bailiffs of cities & boroughs within the same cities & boroughs, & boroughholders', & wardens of the peace within their wards, shall have power to execute this act. And that the Just. assigned, at their coming down into the country shall have power to inquire, how such officers & Lords have executed their offices in this case, & to punish them whom they find have not done that which pertained to their office. St. 7. R. 2. 13 20. R. 2. 1. And after by a statute made anno 7. R. 2. it was ordained, That no Lord, Knight, nor other, little, or great, shall go nor ride by night or by day armed, nor bear salad or skull of iron, nor other armour, upon the pain of forfeiture thereof to the king (except the king's officers and ministers in doing their offices:) And by the same statute it was also assented, that none should ride or go with Launcegays Launcegaies'. (being an armour defensive then used) in affray of the people, but that the same Launcegays should be for ever put out. 8 And shortly after, the same Statute of 2. Ed. 3. was put in execution: Wearing of a privy coat. for a knight was attached and arraigned in the king's Bench, for that he did wear armour under his upper garment in the king's palace, 24. E. 3. 33. and in Westminster hall: who pleaded that there was debate between him and another knight, who did that week strike him, and yet did menace him, and that for fear of further peril, and to save his life he did wear the same armour: But this was adjudged no plea, for the court did award, that he should forfeit his armour, and be committed to the marshalsea. And though he desired to be let to mainprize, he was not admitted thereunto until the king's pleasure was known. And the other knight his adversary, was sent for into the king's Bench, and there commanded upon pain of all that he could forfeit, that he should not meddle, nor do any thing but that which was good to his said adversary. Labourers shall wear no weapons. 9 And because servants in husbandry, labourers, artificers, and other persons of mean degree, should take no encouragement nor occasion to break the peace, nor wear any weapons therewith to menace, threaten, or terrify others: Therefore by a Statute made anno 12. R. 2. it was ordained, St. 12. R. 2. 12. That no servant in husbandry, or labourer, nor servant of artificer, or victualler, shall bear any Buckler, Dagger, or Sword, upon pain of forfeiting of the same (except it be for the defence of the realm in the time of war, and then by the survey of Arraiers for the time being, or in traveling with their masters, or on their master's business.) And Sheriffs, Mayors, Bailiffs, and Constables shall have power to arrest all offenders against this Statute, and seize the said Bucklers, Swords, and Daggers, and keep them until the Sessions of the justices of peace, and the same shall present before the same justices in their Sessions, together with the names of them that did bear the same. But this shall not be prejudicial to the franchises of Lords touching forfeitures due to them. By the foresaid two Statutes of 2. Ed. 3. and 12. R. 2. it doth appear, that the meaning of the makers of those laws was, not only to preserve peace, & to eschew quarrels, but also to take away the instruments of fight and battery, and to cut off all means that may tend in affray or fear of the people. Assurances made by menace. 10 As menace of life and member giveth cause of an action of trespass, to him that receiveth loss or hurt thereby, & entituleth the king to a fine: 20. Ass. p. 14 28. H. 6. 8. in like sort an obligation, a release, or deed of annuity made, and granted by menace, are voidable by the law, so that the same menace be of life, member, or liberty: viz. of some hurt to be done to his body by death, maiheming, or imprisonment, and not to his lands or goods: for if A. will menace B. that if he will not make him an obligation of xx. l, that than he will disseise him of such land, 7. Ed. 4. 21. 4. H. 4. 2. 39 H. 6. 51. or dispossess or take from him such goods: in this case if B. do make and deliver the said obligation of xx. l to A. in an action of debt brought by A. against B, upon the said obligation, B. shall not avoid this obligation, in respect of this menace, because this menace did not tend to the hurt of the person of B. but to prejudice him in his lands, or goods: for the redress and recovery whereof, the law would have given B. a sufficient remedy, if A. should have done him the wrong which he menaced. And he that will take an advantage to avoid his deed by menace, must in this plea express, Fitz. Dures 13. how and in what sort the other party did menace him: viz. that he drew his sword against him, and threatened to kill him, if he would not seal and deliver such an obligation, release, annuity, etc. If A. do menace B. in one county, that he will kill or mayhem him, 33. H. 6. 24. 2. H. 5. 10. if he do not seal him an obligation of xx. l, or stand to the arbitrement of C. in a cause depending in question between them: And after B. being at liberty in another county doth seal the same obligation, or doth stand to the arbitrement of C. this obligation or arbitrement is void, for it shall be intended to be done by force of the first menace. And if A. do menace B. that he will kill him, imprison, mayhem, or beat him, if he do not make an obligation of xx. l to C. 39 H. 6. 36. Co. li. 2. 9 if in this case B. do become bound by obligation to pay unto C.xx. l. in an action of debt brought upon this obligation by C. against B. the same B. may avoid this Obligation which he made by this menace of A. though the menace was made by one man, & the Obligation was made to an other; for that the menace was the cause of the making of this Obligation, which the law doth respect and punish, and not only the party to whom the Obligation was made. 11 Assault & battery be for the most part an accomplishment of that which menace did threaten, & a performance by deeds of that, What is assault and battery. which the other forewarned by words: that is to say, a violent & forcible abusing, or attempting to abuse by blows and stripes the person of an other, contrary to the peace of the Realm, and the law of the same; which hath ordained, that no person shall be judge or revenger of his own wrong, but leave that to the censure of the law, that is always ready to hear & redress every man's just complaints: for he that doth attempt to assault or beat an other, to satisfy his own turbulent spirit, or to revenge his own private injury, doth as much as in him lieth to wrest the sword of government out of the K. hands, to take from the law her equal censure in justice, & to make himself both judge, & executioner in his own cause; & because this disordered person contemning the justice of the Law, hath assaulted or beaten an other without warrant of law, & broken thereby the peace of the realm; the law hath devised a quiet & peaceable course, to reduce him again to order, in punishing him by an action of Trespass of assault & battery, wherein being convicted, he shall satisfy the party grieved his damages, & pay to the K. a fine, & his body shall be committed to prison, until he hath satisfied it. Though the party menaced shall not have his remedy by action of Trespass, unless the same menace was of life & member, and also that the party menaced received some loss or prejudice thereby in his livelihood, or estate; for that the menace, & the hurt which the party doth receive thereby, being joined together do make the trespass, & give cause of the action of Trespass: Yet in an action of Trespass of Assault & battery, where it is proved & found, that the offendor did make an assault only (as one did strike at an other with a hatchet) but did make no battery, or hurt the person of any other, it is otherwise: for seeing assaulting doth tend to the breach of the peace, 22. Ass. p. 60 42. Ed. 3. 7. 40. Ed. 3. 40. 6. H. 7. 1. & he that maketh an assault, doth his endeavour to hurt, the law doth give to him that is assaulted an action of Trespass to recover his damages, & to the K. a fine: for by the assault, the party assaulted is put in fear, evil handled, & hindered of his business. And if he be divers times assaulted, 45. E. 3. 24. he may have one action of Trespass for all those assaults, & shall recover damages, according to the number and grievousness of them. And for an assault made to the wife, 22. Ass. p. 60 the husband & the wife shall have an action of Trespass against him that made the assault, 46. Ed. 3. 6. & the declaration shall be ad damnum ipsorum, though the husband only shall recover the damages. 12 But as he that is assaulted or beaten, justifying of beating in his own defence. shall have his remedy by action of Trespass against him that did assault or beat him, & also the K. shall have a fine therefore, if he that made the assault or battery did it without cause, & offered therein injury to the party assaulted; 16. Ed. 4. 11. 19 H. 6. 47. 6. H. 7. 1. 34. H. 6. 15. 43. Ed. 3. 23. because the king's peace is broken, & one member of the common weal hath abused & done wrong to an other: So on the other side, if he that was so assaulted or beaten, did first make an assault upon him that after did beat him, & would have beaten, wounded, or etc. and in his said assault did receive from the other some stripes or blows, the def. may justify his said assault & battery, as a thing done in defence of his own person from imminent & present peril, & wherein the Law will protect & defend him: And therefore in that case the def. doth answer the pl declaration, & pleadeth in bar, that the pl did assault him, & would have beaten him, & he defended himself, & the hurt which the pl received was by his own assault. And the pl in his replication doth plead, that the defendant did with force & arms, & of his own wrong, make assault upon him, beat him, & evil entreat him, contrary to the King's peace, without any such cause, as the defendant hath alleged; And so the issue is joined, whether the assault was begun and made by the plaintiff upon the defendant, or by the defendant upon the plaintiff: for if the assault & battery, 38. Ed. 3. 6. or assault only was first made and begun by the defendant upon the plaintiff; Then the defendant did it with force & arms, and against the king's peace, & is to answer damages to the plaintiff, according to the hurt which he received, & to pay a fine to the K. for using force & violence, & breaking his peace: for at all times in an action of Trespass vi & armis brought against any person, 19 H. 6. 8. if the defendant be convict, he shall pay a fine to the King. 8. Ed. 4. 15. But if the plaintiff made the first assault, and the defendant in his own defence (& rather than he would be beaten or wounded) did beat, strike, or wound the plaintiff, Then the plaintiff shall recover no damages against the defendant, but shallbe amerced to the King for his false suit: Neither shall the defendant be charged to pay to the king any fine. And if one man will assault, & offer to beat two, three, 12. Ed. 4. 6. or more persons, & they in their own defence do beat or wound him, he shall have no action of Trespass or other remedy against them, & one of them may defend & help the other. But it is to be observed in this case, that if one man do assault an other, if he which is assaulted may escape with his life, 2 H. 4. 8. 33. H. 6. 18. or without being wounded or maihemed, it is not lawful for him to beat or wound the other who made the assault. 13 As the law doth account it no breach of the peace for one man to beat an other in the defence of his own person from killing, justifying of beating in defence of others wounding, or beating, but a thing justifiable: So doth she impute it no fault punishable for the husband to beat him, that doth assault, & would beat, wound, 19 H. 6. 31. 66. Lib. intur 553. or evil entreat his wife, being both one flesh: or for the wife to beat him, that doth assault, and would beat, wound, or evil entreat her husband: Or for the son or daughter to beat him that doth assault, & would beat, wound or evil entreat his or her father or mother: Or for the father or mother to beat him that doth assault, Lib. intur 554 & would beat, wound, or evil entreat his or her son or daughter, being then within age, & not able to defend him or herself: Or for the Lord to beat him that doth assault, & would beat, wound or evil entreat his villain: Or for the servant to beat, him that doth assault, & would beat, wound, 35. H. 6. 51. 11. H. 6. 19 12. Ed. 4. 6. or evil entreat his master or mistress; or to take any weapons wherewith the assailant would beat, wound, or evil entreat his master, & to keep them until his rage be suaged; for the servant is bound to perform unto his master & mistress protection & duty, & he may kill a man in defence of his master, if his said master cannot otherwise escape. But the servant cannot justify the beating of him, 21. H. 8. 39 that doth assault, & attempteth to beat, wound, or evil entreat the father, mother, brother, sister, son, 9 Ed. 4. 48. or daughter of his master or mistress for he oweth no obedience or duty to any of them. Neither can the master justify the beating of him, that doth assault, & would beat, wound, or evil entreat his servant. Fitz. justification 3. 19 H. 6. 30. 66. But though the master cannot assault & beat an other that doth assault, & would beat, wound, or otherwise evil entreat his servant; Yet he may with a sword, staff, or other weapon aid & defend his servant assaulted, from being beaten, & that in respect of the loss of his service. And also after his servant is beaten, 22. H. 6. 43. 21. H. 6. 9 Fitz. Trespass 46. 20. H. 7. 5. Cook. lib. 5. 108. he may have an action of Trespass against him that did beat, wound or evil entreat his said servant (unless it were upon the same servants own assault) & recover so much in damages against the offendor, The master's remedy for the bea●ing of his servant. as he received prejudice, or hindrance by the loss of his said servants service: for if the servant be but so beaten, that he is able to do his service, as well as he was before, the master shall recover no damages for that beating. And as the master may have an action of trespass against the offendor, & recover so much in damages as he doth lose by the want of his said servants service: so likewise the same servant may have another action of trespass against the offendor, & recover so much in damages, as he shall receive hurt on his body, Fitz Trespass. 210. 21. H. 6. 8. 3. H. 6. 54. 34. H. 6. 28. 43. by the said assault & beating. In an action of trespass brought by the master for beating of his servant, whereby he did lose his service, it is a good plea for the defendant to say, that he was not the plaintiffs servant, or that he was the defendants servant, and not the plaintiffs: or that he was farmor, tenant, neighbour, or sojourner with the plaintiff, and not his servant: or that the party beaten was the plaintiffs wife. And in the said action of trespass of assault and battery for the beating of his servant, 22. H. 6. 43. he need not declare of the retainer of the same servant, for if he did but serve his master at his pleasure, yet the master shall have an action of trespass for the loss of his service. 14 As the law doth allow a man to beat another in defence of his person, Battery in defence of his goods. from extreme peril: so doth she tolerate one man to beat another for the preservation of his goods from rapine and spoil: for as it standeth not with the peace of the realm, that one man without some lawful cause should beat another: so it standeth not with the justice of the realm, that one man should take another's goods injuriously from him. And he that will attempt by force and violence to take away another man's goods wrongfully from him, 9 E. 4. 28. 19 H. 6. 31. 65. Kel. p. 92. may justly by force & strong hand be resisted: And if in that case he that shall make an assault to take those goods, be in the encounter beaten by the owner of the same goods, the law will excuse the owner therein, & protect him to defend those goods, whereof he hath a lawful property. And the same law is, if a man hath no property in goods, but only a possession by the bailment of another, to be redelivered when they shall be required: if in this case a stranger will assay by force to take the same away, Lib. Intr. 553. he that hath the possession of the same goods (though it be but a bloodhound) may defend the same by force: And if the said stranger shallbe hurt or beaten in that assault, he shall have no remedy by action of trespass, or otherwise, against him that had the said possession, for he may justify the defence of the goods so bailed unto him, in respect that he hath the lawful possession of them, and standeth chargeable to redeliver them, or the very value of them to him, the bailed them unto him, whensoever he shall be required. Battery in defence of his land, lease, or way. And so it is if one hath a mill whereunto a river or spring of water doth run, 3. H. 4. 9 and hath run time out of the remembrance of man, and another would stop the course of that water, & turn it another way, & the owner of the mill doth disturb him therein, whereupon that other doth assault and attempt to beat him: In this case, if the owner of the mill for his own safeguard, and for the defence of his ancient water course, doth beat him again, it is justifiable: for this beating was not an intended breach of the peace, but to defend him from violence offered to his person, Lib. Intr. 554. 11. H. 6. 33. 10. E. 4. 6. and injury to his freehold or term. And the same law is in every case of battery of another, who doth menace or assault the right owner, and attempt to beat him for the lawful defence of his own freehold, or term, or from his lawful high way. 9 E. 4. 3. 15 If one man do make assault upon another attempting to beat him, Battery inresisting a justice of peace. & so to break the peace, if a Iu. of peace do command him that maketh the assault to keep the peace, & to surcease his assault, & he will not do it, or will answer that he will not: the Iust. of peace may lay his hands upon the offendor, & arrest him to find sureties of his good behaviour: and if the offendor do make rescue, and resist the arrest by force, and then be beaten, he shall have no remedy against the same justice of peace, who hath done nothing but that which belonged to his office, and duty: and the offendor first in breaking the peace, and after in resisting the justice of the Law, being beaten by the justice of Peace, or any other in his company, hath worthily tasted the due reward of his own disobedience. And also the justice of peace may in this case commit the offendor to prison, until he hath found sureties to keep the peace: A justice of peace may arrest one to find surety of peace, 21. H. 7. 22. 9 E. 4. 3. and though he doth let the same party after to go at liberty, without finding surety of peace, yet he shall have no action or other remedy to punish the same justice, because he is justice of Record. A schoolmaster beateth his scholar. 16 In an action of trespass of assault and battery, 21. E. 4. 6. Li. Intr. 555 it is a good plea for the defendant to plead, that he is a schoolmaster, and a teacher & instructor of children, and that the plaintiff put himself to be scholar with him, & to be taught & instructed in his book; and because the plaintiff was careless and negligent in learning of that whereof he was instructed, or did beat & abuse other scholars his schoole-fellows, the defandant did beat him with a rod, as it was lawful for him to do. A master beateth his apprentice. 17 And likewise in an action of trespass of assault and battery, it is a good plea for the defendant to plead, that he is a free man of the city of London, 21. E. 4. 6. & 53. occupying the trade of a draper: & that the plaintiff being above the age of xiv. years, put himself apprentice unto him, to serve him in that trade, by the space of seven. years: And because the plaintiff was negligent in learning his trade, he did strip him, and beat him with a rod, as it was lawful for him to do: and if he did not sufficiently beat him for his offence at one time, he may beat him again: And in like sort, if a villain will not be justified by his Lord, nor obedient unto him, it is lawful for the Lord to chastise and beat him, or to imprison him, or to inflict any reasonable punishment upon him, so that he do not mayhem or kill him: for in the foresaid cases, the schoolmaster, master, and Lord have a civil power and authority over the scholar, servant, and villain. Some do hold that if an apprentice or servant be above the age of xxj. years, and then do his service negligently, that his master ought not to beat him therefore, but to have an action of covenant against him. But note the form of the Indenture of an apprentice touching chastising him: And it appeareth by the Statute of 33. H. 8. 12. that the master may strike his servant with his hand, fist, Stat. 33. H. 8. 12. small staff, or stick for correction, and though he do draw blood. S. Br. 28. Beating of a man that is frantic. 18 If a man be frantic, furious, or mad, 22. Assize p. 56. 22. E. 4. 45. and attempteth being at liberty to burn an house, or to do some other mischief, or to hurt himself, or others: it is lawful for his parents, kinsmen, and other friends, to take him, put him into an house, to bind him, and to beat him with rods, & to do any other forcible act to reclaim him, or to keep him in a house or place alone, where he shall do no hurt: And he shall have not action of trespass of assault and battery, action of false imprisonment, nor other remedy against them: for in this case, and the others before rehearsed, the peace of the realm was not broken, but a lawful punishment was inflicted upon those who had deserved it, to the end they should be reform, and hereafter do their duties the better. Beating of one that will not yield to arrest. 19 If one man do enter a plaint against another in a court having jurisdiction to hold plea of that suit, 2. E. 4. 6. 21. H. 7. 39 and the Sergeant of the court doth arrest the defendant, and the defendant will draw his sword to defend himself, and after doth run away, with intent to escape from the Sergeant, if in this case, the Sergeant and he that did enter the plaint, do pursue him, beat, & hurt him, if he will not be apprehended and yield to the arrest, they may justify the same in an action of Trespass of assault and battery; for they have not broken the peace, nor offended the Law, in seeking to justify him, who doth attempt to fly from the justice and indifferent trial of the law. But if the party had not been arrested, the Sergeant, nor any other with him could have justified the beating of him. 38. H. 6. 25. 20 In an action of Trespass of assault and battery, the defendant pleaded, Beating of a servant departing out of his service. that the plaintiff was his servant retained, & departed out of his service, and that he laid hold upon him, and led him home to his house to do his service: But this was adjudged no plea; for it is not lawful for the Master in this case to beat, or forcibly to compel his servant against his will to return and do his service; but to require him to do it, and if he will not, than the Master may have an action of Covenant against his servant, and recover so much in damages, as he hath received hindrance by the loss of his service. But by the statute made Ann 5. Sta. 5. El. 4. Eliz. it is ordained, That if any servant retained to serve in husbandry, shall departed from his master, mistress, or dames service, before the end of his term, unless it be for some reasonable and sufficient cause to be allowed by a justice of peace of the County, or the Mayor, or other head officer of the City, borough, or town corporat, wherein the said Master, mistress, or dame inhabiteth: Or if any servant at the end of his term departed from his master, mistress, or dames service, without one quarters warning given before the end of his term, and before two lawful witnesses; Then upon complaint made by the said Master, etc. to two justices of peace of the County, or to the Mayor, or head officer of the city, borough, etc. they or any of them shall have power to hear and examine the matter, and finding the said servant, or the party so refusing, faulty in the premises, upon such proofs and good matter, as to their discretions shall be thought sufficient, to co●mit him toward, there to remain without bail or mainprize, until he shall be bound to the party to whom the offence shall be made, to continue with him for the wages limited by this statute, and then to be discharged upon his delivery, without paying any fee to the Gaoler where he shall be so imprisoned. And as the Master cannot by beating, nor by force compel his servant, 38. H. 6. 25. 21. Ass. p. 85 to serve him against his will: No more can a Lord compel his ward, A Guardian may not beat his ward. by beating, or by force to come unto him, or to tarry with him against his will: But if he do departed from him, than his Lord is to have his action against him. 22. Ass. pla. 59 27. Ass. p. 4. Fitz Trespass 238. 21 H. 6. 39 21 If A. command, procure, or hire B. to smite, Commandment of battery. or beat C. and he doth assault and beat C. in the presence of A. In this case, C. may have an action of Trespass of assault and battery against A. and recover damages against him, or against A. and B. together; for here the peace was broken, and wrong done to C. by the means and persuasion of A. And B. had not stricken with his weapon, if A. had not first stricken with his tongue. And the same law is, if A. go to fight with C. and desireth B. to go with him, and after doth meet with C. and doth assault and beat him; In this case C. may have an action of Trespass against A. and B. together, or against B. alone, though B. did not assault C. nor give him any blow, and recover damages against him, because he came in company with one, that intended to break the peace, and to do an unlawful act. Hurting at some exercise. 22 If two or more do agree together to run at tilt, just, barriers, Fitz. bar 244. or to play at backsword, bucklers, football, or such like, & one of them doth beat, bruise, or wound an other; the party grieved shall not have an action of Trespass of assault & battery against the other: for that it was a combat by consent, & put in practice to try their strength, valour, or agility, & not to break the peace. But if the same day or some other after that the pastime is at an end, & they departed a sunder, one will assault or beat an other, in respect of some wrong conceived to be received in the time of the said play; then an action of Trespass of assault & battery may be pursued by him that is so beaten against the trespasser. Whipping of a Vagabond. 23 In an action of Trespass of assault & battery, it is a good plea for the defendant, to plead, that the plaintiff was by the stat. made An. 39 St. 39 El. 4. El. (entitled an Act for punishment of Rogues, Vagabonds, & sturdy beggars) declared to be a Rogue, Vagabond, or sturdy beggar, & that he was taken begging, vagrant, & misordering himself at L. in the County of N. & that upon his apprehension, by the appointment of A. B. one of the justices of peace of the said County of N. or of the Constable, Headborough, or Tithingman of the same parish of L. he was by this defendant stripped naked from the middle upward, and openly whipped until his body was bloody. And the same law is if any justice of peace, Mayor, bailiff, or other head officer shall commit any offendor which shall cut or unlawfully take away any corn or grain growing, or rob any orchards or gardens, or break or cut any hedge, pales, rails, or fence, or dig, pull up, or take up any fruit trees, or trees in any orchard, garden, or elsewhere, to the intent to take & carry the same away; Or shall cut or spoil any woods, or underwoods, poles, or trees standing, not being felony by the laws of this Realm: Or shall be a procuror or receivor knowing the same (contrary to the statute therefore made An. 43. El. entitled, Sta. 43. El. 7. an act to avoid and prevent divers misdemeanours in lewd and idle persons) shallbe committed by a I. of Peace, or by a head officer of a city, borough etc. to some Constable or other inferior officer of the city, borough, Town, or Hamlet, where the offence shall be committed, or the party apprehended, to be whipped. If in this case the said Constable, or other inferior officer shall whip the same offendor until his body shallbe bloody; the same offendor shall neither have an action of Trespass of assault & battery, nor other remedy against the said Constable or officer: for in the foresaid cases, Punishments by the order of law. & in all other cases, where an offendor is punished for petit Larceny by whipping, & for other offences by the pillory, the stocks, the tumbril, or otherwise, for any offence committed by him contrary to any of the▪ laws or statutes of the Realm, there is no peace broken, nor blame to be imputed to him or them which do execute that punishment; for it is the justice of the law, which doth inflict those punishments upon offenders for transgressing the law, & the executioners of those punishments be but the instruments of the law; as the axe is in the Carpenter's hand. Battery for disobeying of a writ or warrant. 24 In an action of Trespass of assault & battery, 21. H. 7. 39 Fitz. Trespass 108. it is a good plea for the def. to plead, that he had a warrant to arrest the plaintiff, and that by force of that warrant he did arrest him, & then the plaintiff made assault upon him, & therefore the hurt which he received, was by his own assault: for every subject is bound to obey the K. writs, & all mandates, precepts, & warrants awarded by his justices, sheriffs and officers sufficiently authorized: And he that doth resist them, or denieth to obey them, encountereth the justice of the law; and therefore the beating of him who refuseth to submit himself to the obedience of the Law, is no breach of the peace, but a mean to perform the law. 25 Though the Law hath a regard to preserve peace between all persons, and in all places, and carrieth a vigilant eye, that one person shall not menace, assault, beat, mayhem, or imprison an other (but in certain cases, and for some special causes) and imposeth an heavy burden upon such as shall break that peace by any of the means aforesaid: Yet she hath a more special respect to some ceraine places, to some times, and to some persons; and carrieth that reverend and due care and consideration of them; that she inflicteth a more sharp and bitter punishment upon such as shall violate the peace in them, or to the offence of them. And therefore for the avoiding of the disturbance of the peace in the Church (where God is to be honoured and all peace to be preserved) and to continue peace to priests, clerks, and others, whilst they are doing divine service; There was a statute made Anno 50. E. 3. and after rehearsed and continued Anno 1. Sta. 50. E. 3. 1. 1. R. 2. 15. R. 2. whereby it was enacted; That if any of the King's officers, or other person, do arrest any priest, clerk, or other, Arresting one in a Church doing divine service. which is doing any divine service in the Church, Churchyard, or other place dedicated to God, he shall be imprisoned, and punished at the King's pleasure, and further shall recompense the party arrested. But no people of the Church, shall keep them within the Church, or Sanctuary by fraud or ●ellusion. 26 And because it is most necessary in every Christian common weal to provide that peace and tranquillity may be preserved and continued among the people, and specially in holy Church in the time of divine service, and preaching, and that all things being contrary thereunto, or that are or may be in disturbance thereof may by foresight be eschewed and avoided, and remedy therefore provided: Sta. 1. M. 3. By a like statute made Anno 1. Reg. M. it was ordained, That if any person of his own authority, Disturbance of a preacher in his sermon. shall willingly and of purpose by open words or deeds, maliciously or contemtuously disturb, or by any other unlawful ways disquiet or misuse any Preacher allowed to preach by the Queen, or by any Archbishop or Bishop of this realm, or by any other lawful Ordinary, or by any of the Universities of Oxford and Cambridge, or otherwise lawfully authorized, or charged by reason of his cure, benefice, or spiritual promotion, or charge, in his open sermon, preaching, or collation, that he shall preach or pronounce in any Church, chapel, or Churchyard, or in any other place used or appointed: then every such offendor, his aiders, procurors, or abettors, immediately after any of the said misdemeanours committed, or at any time after, shall be arrested by any Constable or Churchwarden of the said parish, town, or place where the said offence shall be so committed, or by any other officer, or by any other person then being present at the time of the said offence, and carried to any justice of peace within the said shire, or within any City, borough, Liberty or town corporat, wherein Iust. of P. be, where the said offence shallbe so committed: And the said justices upon due accusations thereupon made by the apprehendor, or other person, of the offendor, forthwith shall commit him to safe keeping: & within 6. days immediately after the said accusation so made, the said Iust. with one other Iust. of P. within the shire, city, borough, liberty, or town corporat shall diligently examine the offence aforesaid. And if the said two justices shall upon their examination find the person so accused guilty of any of the said offences, whereof he shall be accused, and that by two sufficient witnesses, or by his confession; then they shall commit him to the jail of the said Shire, City, Borough etc. where the offence was committed; there to remain without bail or mainprize by the space of three months then next ensuing, and further to the next quarter sessions etc. at which sessions the said person upon his reconciliation & repentance before the said justices at the said sessions, shall be delivered out of prison upon sufficient surety of his good abearing, and behaviour, to be then and there taken by the said justices for one whole year than next ensuing, as by the discretion of the said justices then and there being, or of the more part of them shall be thought convenient. And if the said person will not be reconciled, and repent at the said quarter sessions, than he shall be further committed to the said jail by the said justices; there to remain without bail or mainprize, Rescuing the offendor, or disturbing the arrest. until he shall be reconciled and be penitent etc. And if any person or persons of their own authority willingly and unlawfully do rescue any offendor so apprehended, or will disturb the said offendor to be apprehended; then every of the said Rescuers or disturbers shall suffer like imprisonment as is aforesaid, and further shall pay for every of his offences v. l. to the Queen. The punishment of the Town where the offendor doth scape. If any of the offenders aforesaid be not apprehended in time convenient but do escape, than the said escape shall be lawfully presented before the justices of peace at the next quarter sessions etc. and the Inhabitants of the parish where the said escape was suffered, shall forfeit to the Queen etc. for every such offence v. l. to be levied and taken as other like amerciaments and fines be levied upon any village, hundred, or town, for the escape of any murderer, or other fellow, for not making pursuit upon hue and cry, according to the Statute of Winchester, and the statute of 3. Punishment by Ecclesiastical laws. H. 7. 1. This Act shall not extend to take away the authority and punishment of the Ecclesiastical laws standing in force, for the punishment of any of the offences aforesaid: But they shall be used in every thing, as though this act had never been made. Whatsoever person offending in the premises, shall for any the offences afore recited, receive punishment of the Ordinary, having Testimonial thereof under the said Ordinaries seal, shall not for the said offence eftsoons be convicted before the justices: Eté converso. 27 To the intent utterly to take away all quarrelling, brawling, fraying, and fight openly in Churches and Churchyards, by a statute made An. 5. & 6. E. 6. it was ordained; Sta. 5. & 6. E. 6. 4 That if any person whatsoever do by words only quarrel, Chiding in a Church or Churchyard. chide, or brawl in any Church or Churchyard; Then it shall be lawful to the Ordinary of the place, where the offence is done, and proved by two lawful witnesses, to suspend him being a Layman ab ingressu Ecclesiae, and being a clerk from the Ministration of his office, so long as he thinketh meet, Smiting in a Church or Churchyard. according to the fault. And if any person or persons shall smite or lay any violent hands upon any other, either in any Church, or Churchyard; than ipso facto every person so offending shall be deemed excommunicate, and be excluded from the fellowship and company of Christ's congregation. And if any person shall maliciously strike any person with any weapon in any Church or Churchyard, Drawing or smiting with a weapon in a Church. or shall draw any weapon in any Church or Churchyard, to the intent to strike an other with the same weapon; then every person so offending, and thereof being convicted by verdict of xii. men, or by his own confession, or by two lawful witnesses before the justices of assize, justices of oyer and determiner, or justices of peace in their sessions, shall be adjudged by the same justices before whom such person shall be convicted, to have one of his ears cut off. And if the person or persons so offending have none ears, whereby they should receive such punishment, as is aforesaid; Then he or they to be marked and burned in the cheek with an hot iron having the letter F. whereby he or they may be known and taken for fray makers, and fighters; and besides that, every such person to be and stand ipso facto excommunicated as is aforesaid. 28 As the law hath always had a principal and most special regard, that there should be no breach, or disturbance of the peace, to those persons, places, and times, which be dedicated and devoted to the service of God, to the Ministration of his Sacraments, and preaching of his word: So hath she a secondary respect, that the King the head of the Realm and chief fountain of peace, may have tranquility and peace, at the time, and in the place, where he doth rest, and in person make his abode: whereupon by a Statute made Anno 33. H. 8. it was enacted, Drawing of blood within the King's palace. That if any person shall maliciously strike any other person, Stat. 33. H. 8. 12. whereby blood shall be shed in any of the King's houses or palaces, or in any other house, where the King's Majesty his heirs etc. ●●●t be at that time abiding in his royal person, (viz. within any edifices, courts, places, gardens, orchards, or houses within the Porter's ward of any the houses above rehearsed, or within any gardens, privy walks, orchards, tilt-yards, woodyards, tennis plays, cockfights, bowling allies, near adjoining to any of the houses aforesaid, and being part of the same, or within 200. foot of the standard of any outward gate, or gates of any of the said houses, commonly used for passage from any of the houses etc. and shall be thereof indicted, arraigned, and attainted according to the Statute in that case provided, he shall have his right hand stricken off, be imprisoned during his life, and make fine to the King at his pleasure. But this act, nor the pains and forfeitures before rehearsed, shall not extend to any Noble man, or other person that shall strike his servant within the said palaces or houses, or the limits of the same, with his hand, or fist, or any small staff, or stick for correction for any offence committed; Nor to any of the King's officers, that in executing his office shall strike any person with his hand or fist, or small staff, stick, or tipstaff; Nor to any other person, that in doing service at any triumph, or any other time of service, by the King, or any of his Council, or other his head officers commandment, shall for the executing of his said service, strike any person, with his hand, fist, small staff, or stick, or any tipstaff within the same palace, house etc. although by reason of the same stroke or strokes there happen to be any blood shed of such person as shall be so stricken, except the person so stricken die of the same stroke within one year next after. Long time before the making of this statute King Alured ordained a law, Leges Aluredi cap. 7. That if any man did strike or draw a weapon of iron to strike in the King's palace, the King might, it he pleased, put him to death. 29 Because they which upon the King's commandment do come to his council, or upon his summons do resort to his Parliament, do make their repair thitherto further the wealth and peace of the Realm; it hath been therefore thought reason that during the time of the said council & Parliament they should not be deprived of that peace which they endeaour to procure to others and themselves. Assault upon one which cometh to the Parliament. Wherefore by a Statute made Anno 11. H. 6. Stat. 11. H. 6. 11. it was ordained: That if any assault or fray be made upon any Lord Spiritual, or Temporal, Knight of the Shire, Citizen, or Burgess, which cometh to the Parliament, or to the King's Council by his commandment, and there being and attending; then Proclamation shall be made in the most open place of the Town where the fray was made by three several days, that the party which made such affray or assault shall yield himself in the King's Bench within a quarter of a year next after the Proclamation made, if it be in the Term time, or otherwise at the first day of the Term following the said quarter. And if he do not, he shall be attainted of the deed, and pay to the party grieved his double damages, to be taxed by the discretion of the justices of the same bench, or by the inquest if it be needful, and shall make fine and ransom at the King's pleasure. And if he come, and be found guilty by inquest, by examination, or otherwise, of such affray or assault, than he shall pay to the party grieved his double damages found by the inquest, or to be taxed by the discretion of the said justices, and make fine and ransom at the King's pleasure. Assaulting the servant of a Parliament man. And by the Statute made Anno 5. H. 4. it was enacted, St. 5. H. 4. 6. That he shall have the like punishment which maketh assault or fray, in the Parliament time, upon any menial servant of any Knight of the Parliament, Citizen, Burgess etc. which doth come to the Parliament with his master. The liberty of the Clergy as a convocation. And by the Statute of Anno 8. H. 6. it was provided, St. 8. H. 6. 1. That all the Clergy, which be called to the convocation by the King's writ, and all their servants, and familiars, shall fully use, and enjoy such liberty, or defence, in coming, tarrying, and returning, as the great men and Commons of the Realm have, or are wont, or aught to enjoy, which are called to the Parliament. 30 Seeing the wealth and peace of the Realm doth chiefly consist in the due execution of justice, which cannot be ministered without meet persons, and places ordained therefore; for that cause the Law hath specially provided, that those persons and places which be designed to the same Administration of justice, shall be so guarded and protected from force and violence offered unto them, or in them, that she hath inflicted deeper and more grievous punishments to those who shall break or disturb the peace, in the presence of those Magistrates, or in those places, than to them who shall break the peace in the Kings own palace, where he is in person abiding, or in the Parliament time ordained for the making of Laws. Assaulting a judge or juror. And therefore it hath been adjudged; 22. Ed. 3. 13. That if one draw his sword to strike a justice assigned sitting in place of judgement, and be thereof found guilty, he shall forfeit his lands and chattels, and have his right hand cut off. And likewise if one in the presence of the justices do strike a juror, he shall forfeit his lands and goods, have his right hand stricken off, and be committed to perpetual prison. And the same Law is, if one of the King's justices assigned doth arrest any person, which hath made a fray before him, and a stranger will rescue that prisoner, whereby he doth escape, in this case, as well the prisoner, as he that made the rescous shall be disherited, and be perpetually imprisoned, for that the attachment of such a justice is the Kings own attachment in the construction of the Law. Striking in time or place of justice. And if one do strike an other in Westminster Hall, Fitz: Cor. 280. 2. & 3. P. &. M. Dy. 188. during the time that the King's Courts do sit, he shall forfeit to the King his lands and goods, have his right hand cut off, and be committed to perpetual prison. 4. H. 7. 2. 31 In an action of Trespass of assault and battery, the defendant pleaded, Arresting by watchmen. that there were divers felonies committed in those parts where he dwelled, and he being watching in his house, came into the high Street, where the plaintiff was at eleven of the clock in the night, and the defendant came unto him, and laid his hands in peaceable manner upon him to see his face, and when he perceived that he was a true man, he left him & departed, which was the same assault and battery: And this was allowed to be a good justification; for by the statute of Winchester, watchmans may arrest Nightwalkers, and also may appose them from whence they come, and what they be; but they must be such watchmen, as be appointed by the Town: And so every man may arrest Nightwalkers, for it is for the good of the Common wealth. The same law is in an action of Trespass brought of the assault and battery of his servant, 4. H. 7. 18. 5. H. 7. 5. 2. Ed. 4. 8. whereby he did lose his service 3. days, and the defendant pleaded, that A. was rob at midnight, of goods to the value of xl. s. whereupon the said A. came to the Constable, and prayed him to search for suspicious persons, and to apprehend and arrest them, and accordingly he did search, and found the same servant walking suspiciously in the street in the night, and therefore he would have arrested him, but the said servant fled, and would not yield to the arrest, and the defendant by the Constable's commandment pursued and took him: This was adjudged a good plea in bar; for when a felony is committed, the Constable, or any others may arrest suspicious persons: and if any that is arrested will not yield, but assault him or them that do arrest him, they may justify the beating of him, for that he doth resist the peace, and justice of the Realm, when he doth forcibly strive to fly, and not to be justified by it. 30. Ed. 3. 4. 29. Ass. p. 63. 28. Ed. 3. 92. 6. H. 4. 7. 32 If a man be assaulted and beaten, Trespass for battery before outlawry. and then be outlawed in an action of Trespass, and after doth purchase his Charter of pardon, which is allowed; he may have an action of Trespass against the offendor, for the assault & battery made before the outlawry, for the said outlawry shall not extinguish his action, nor cause that offence, which before was punishable to be unpunished: And if the party beaten should not have his Action, the injury done unto him should be unpunished: for the King shall have no remedy to recover damages for this battery done to the person of him that was outlawed, 29. Ass. p. 47 63. as he might have had, if any debt had been owing, or any goods had been taken from the outlaw before his outlawry: And the Law doth expect, that for the peace broken, and the wrong done to the party grieved, the same party shall upon his action of Trespass brought, be recompensed by the recovery of his damages, and the king satisfied for his peace broken by a fine. 11. H. 4. 65. 9 H. 6. 60. 27. Ass. p. 57 33 In an action of Trespass of assault and battery, A man first indicted of battery, and after sued for the same trespass. the defendant pleaded not guilty, the plaintiff replied, that the defendant was before that time indicted before the justices of Peace of the same County, of the said assault and battery, and thereupon process was awarded against him for the kings fine, who then appeared, and pleaded, that the hurt which the plaintiff received was by his own assault, and thereupon they were at issue, and before the verdict, the defendant appeared, and confessed the Trespass, and submitted himself to the King's favour, and made his fine; and demanded judgement, if he should be allowed to plead not guilty, contrary to his own confession: and this was adjudged a good Replication, and an estoppel of the said plea in bar. And then the defendant pleaded, that the hurt which the plaintiff received was by his own assault, upon which plea the plaintiff demurred, seeing the defendant before had pleaded that plea against the King. And then he also waived that plea, and confessed the trespass: whereupon a writ was awarded to inquire of damages. And so for this assault and battery the king was first entitled to a fine by the Indictment, and after the party grieved recovered damages, by an action of Trespass. 34 Imprisonment is where a man is arrested by force, & against his will, and is restrained of his liberty, What imprisonment is. and put in a common jail, or other jail, Lib. Intrac. fol. 319. in a cage, or in the stocks, or otherwise kept in the high street, or open field, if he be in restraint, and cannot go at liberty when he will, but is bound to become obedient to the will of the Law, and is in the custody of the Law. And in all the cases aforesaid, the party so restrained, is said to be a prisoner, so long as he hath not his liberty, freely to go at all times, when he will, without bail, mainprize, or other restraint: And therefore if one person do arrest, imprison, or otherwise restrain an other person of that liberty, without sufficient and lawful cause, the party grieved may have an action of False imprisonment, or an action of Trespass against him that doth so arrest, An action of False imprisonment. or imprison him, and recover damages against him. And the King shall also have a fine of him, for that his law is contemned, and his peace is broken, in that one of his subjects presumeth to imprison an other without sufficient warrant of him, or his law; seeing imprisonment of an other by only act, will, or commandment (without offence of the Law) is one of the kings most royal prerogatives, and only annexed to the majesty, dignity, and imperial Crown of this Realm: For by the Statute of Magna charta it was specially ordained, Stat. 9 H. 3. 29. That no man shall be taken or imprisoned, or disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other ways destroyed, neither shall any pass or fit in judgement upon him, but by lawful judgement of his Peers, or by the Law of the land. And by the statute of Ann 28. Ed. 3. it was enacted, Stat. 28. Ed. 3. 3. That no man shall be put out of his land or tenement, nor imprisoned, nor disherited, nor put to death, without being brought in answer by due process of the Law. And therefore whereas the Mayor and Burgesses of a town corporate (being before authorized by the King's letters patents to make ordinances for the good government of the same Town) did condescend amongst themselves, Co. Lib. 5. 64. to levy a sum of money for the charges of a lawful and necessary act to be done in the same Town, and did further agree, that if any of them did refuse to pay his part of that contribution money so assessed, to be paid, that then he should be committed to prison until he had paid it: and after one of the Burgesses of the Town which before had agreed to the same assessment & ordinance, Voluntary consent, no cause of imprisonment. refused to pay the money which he was by the residue assigned and assessed to pay: whereupon the Mayor of the same Town committed him to prison, against whom the same Burgess brought his action of False imprisonment, and recovered damages against the same Mayor: for though the same Burgess, & all others of the same Corporation might have submitted himself to have paid a sum of money, to have been levied by distress, or action of debt, if he or they had not performed the same order, & paid his part of that contribution: yet the liberty or imprisonment of his body resteth in the censure & judgement of the Law, and not in his own disposition. As if B. do promise C. or be bound by Obligation unto him, that if he do not pay unto the same C. xx. li. within six months, that then C. shall take and imprison him, until he hath paid it: notwithstanding B. do not pay to C. the same xx. l. at the time assessed, C. may not imprison B. for it, though it was his own promise, agreement, or bond: for that B. is not judged by his peers or condemned by the law of the land according to the foresaid statute of Magna Charta. Neither is he brought to answer by due Process of the law according to the purport of the before specified statute of An 28. E. 3. 35 But in many cases one person may arrest, Imprisonment by the commandment of the King, his justices, etc. imprison and restrain an other of his liberty and no action of false imprisonment, action of Trespass, or other remedy will be had against him. As first it is a lawful imprisonment which is done by the absolute commandment of the King, the chief Sovereign head of the common weal by his own mouth, or by the privy Council, (which speak and direct by his Authority) or by the absolute commandment of the King's justices: Or for the forest: Or for the detestable offence of wilful murder. And the common law doth prohibit the prisoner to be mainpernable in all the foresaid cases, Stat. 3. E. 1. 15. as it appeareth by the statute of Westm 1. 36 He is lawfully imprisoned as a special disturber of the peace, Imprisonment for notorious & great offences. who is committed to prison, for any great and notorious offence, viz. such as we do call Mala per se, which be hated, abhorred, and persecuted in all Kingdoms, Provinces, Cities, and well governed common weals: As Treasons, murders, rapes, burglaries, robberies etc. And it appeareth by the statute of West. 1. that he is lawfully imprisoned which before was outlawed: And he which is an approver: Stat. 3. E. 1. 15. And that fellow which is taken with the manner: And he which hath broken the King's prison: And he which is a thief openly defamed, and known: And he which is appealed by an approvor: And he which is taken for burning of a house feloniously done: Or for false money: Or for counterfeiting the King's seal: And he which is excommunicate taken at the Bishop's request: And he which is taken for a manifest offence, or for Treason touching the King: in which said cases the offendor shall be committed to prison and not be let to bail or mainprize. St. 1. jac. 12. And if any person shall be once convicted that he did take upon him by witchcraft, enchantment, charm, Witchcraft, charm, sorcery. or sorcery to declare in what place any treasure of gold or silver might be had, or where things lost, or stolen, should be found, or to the intent to provoke any person to unlawful love, or whereby any cattle or goods of any person shall be destroyed, wasted, or impaired, or to hurt or destroy any person in his or her body, S. Felony by Statute. although the same be not effected: Then he shall suffer imprisonment one whole year without bail, or mainprize, and shall stand upon the Pillory etc. for he that declareth the things aforesaid, by any of the means aforesaid, receiveth his knowledge therein, and practiseth to effect the same, by the inspiration of the Devil, the professed enemy of man's peace, and so committeth a great and notorious offence, and worthily deserveth imprisonment. 37 He is lawfully imprisoned who is found by verdict, Imprisonment for offences done vi & armis. or by his own confession convicted for any offence done vi et armis and against the King's peace: for the law hath ordained that all things shall be done, and all suits prosecuted between one member of the common weal and an other with all tranquility and quietness, and he that doth any thing in perturbation of that tranquility, breaketh the King's peace, and so shall be committed to prison, as a disturber of the peace, until he hath paid unto the King a fine. And therefore in an action of Trespass or false imprisonment, if the plaintiff do declare against the defendant, that he did such an offence, or made such a trespass, vi & armis & contra pacem, the defendant doth first and principally seek to avoid that, to clear himself of force, and the breach of the peace, and doth plead thereunto Quoad venire vi & armis & quicquid est contra pacem non est culpabilis etc. Accordingly in an Assize brought against four men, 2. Ass. p. 8. 12. Ass. pla. 33. it was found by verdict that one of them came with force and arms, and all four were committed to prison because in Trespass all be principals, and none be accessories; and yet if any of them had been within age, than he should not have been imprisoned. 14. E. 3. 18. 16. Ass. p. 7. But if a woman covert be found a disseisoresses with force, she shall be committed to prison, 22. ass. p. 87. And if an action of Trespass of battery be brought against the husband and wife, and it be found by verdict that the wife was guilty of the battery, but not the husband, the wife shall be imprisoned, and not the husband. If he that is proved to be a disseisor in an assize be found to have carried away any goods, this is an attainder of force, 11. H. 4. 17. and he shall be imprisoned without further inquiry of the force, for so it is ordained by the statute of Anno 4. H. 4. St. 4. H. 4. 8. 17. Ass pla. 14. If a man do give council to others to do a disseisin with force, whereby they do it, this shall be adjudged a disseisin in him, and he shall be imprisoned. In an Assize if the defendant do plead a plea wherein an Duster is not denied, which is found against him, he shall be imprisoned, 28. Ass. p. 15 though he doth not confess the Duster: And he that confesseth an Duster, 40. Ass. pla. 16. 19 H. 6. 8. if the Issue be found against him shallbe imprisoned. In an action of Trespass brought for fishing by force and arms in his several fishing, the defendant was found guilty, and was committed to prison. In an assize of rend charge against three terre tenants, it was found that the rent was behind, and the plaintiff distrained, and one of them made rescous, 39 Ass. p. 4. and therefore they were all adjudged disseisors, but none were imprisoned but he that made the Rescous. 9 Ass. p. 7. And in every case of force where any Trespass is found vi & armis, false imprisonment, or assize, the judgement shall be, quod defend' capiatur, 22. Ass. pla. 87. for he shall be imprisoned for the King's fine, and when he doth pay the King's fine he shall be delivered. 38 As one person may be imprisoned who menaceth, assaulteth, or beateth the person of an other, or with force and arms entereth upon his lands or tenements or violently taketh away his goods or chattels; so by the statute of Anno 2. Imprisonment for Riots. H. 5. St. 2. H. 5. 8. where three persons or more be attainted of great and heinous Riots, they shall have one whole years imprisonment at the least, without being delivered by bail or mainprize, S. Riots 11. or in any other manner during the said year: And if the Rioters be attainted of petit Riots, they shall have imprisonment as the King and his Council shall think good. And by the statute made Anno 1. M. it was enacted, St. 1. M. 12. S. Riots 36. that if any persons above the number of two, and under the number of twelve being assembled together, shall intend, practice, or put in ure, with force of arms unlawfully, to murder any of the king's subjects, or to break down the pales, hedges, ditches, walls, or other enclosure of any park or other ground enclosed, or the bank of any fish pond or po●le, to the intent the same should remain open, or to do any other unlawful act, prohibited by that statute, and being required by a justice of peace, or sheriff of the said County, or by the Mayor or chief officer of the city or town corporat to return to their inhabitations, do not, but attempt to put in ure any of the said things. Then every of the same persons shall be imprisoned one year without bail or mainprize: for the offenders in both the cases aforesaid, putting in practise their outrages with a multitude of persons be great disturbers of the peace, and Transgressors of the law. 21. H. 6. 5. 39 In an action of False imprisonment, Imprisoning him that holdeth land with force. the defendant pleaded that the plaintiff held the manor of D. by force and B.C. a justice of peace of the same County did take him, recorded the force, and sent him to the defendant being Gaoler of the same County to be imprisoned, and this was allowed a good justification, though he was committed to prison but by one justice of peace. And in like sort if the action of false imprisonment had been brought against the justice of peace who committed the offendor to ward, the same had been a good plea in bar for him, St. 8. H. 6. 9 for that the statute of Ann 8. H. 6. doth warrant him so to do, & giveth that authority to one justice alone, or to more than one. 29. Ed. 3. 9 5. H. 7. 4. 40 If a Hue and Cry be levied and pursued that a horse of such a colour or mark, so many beasts of such a sort, or age, Imprisoning of one pursued by Hue & cry. or so many sheep of such a brand be stolen, & one is taken leading or driving of the said horses, beasts, or sheep: it is lawful for any man to apprehend and stay him, and to commit him to the Constables of the Town where he is apprehended, and by them to be put into the stocks, or safe kept, until he be delivered by due course of law, though he be not of evil fame, or name, but a man of good credit: for seeing the law by the Hue and Cry hath accused him, by a course of law, he must be again acquitted and discharged: And in this case he that is so taken though he be after acquit of the felony, shall not have an action of Trespass, false imprisonment, or other remedy against him, that did apprehend him. Fitz. bar 202. 3. H. 4. 9 41 In an action of Trespass of assault, battery and imprisonment, Imprisoning him that doth break the peace. the defendant pleaded that the plaintiff menaced to kill him, and therefore he requested the Constables to arrest the plaintiff to find sureties of his good abearing, and the Constables, and the defendant with them, did come and arrest him, and put him into the stocks until he did find sureties: and this was allowed to be a good justification. 5. H. 7. 6. And in like sort if one do make an assault upon a Constable, the same Constable may arrest and imprison him, until he hath found sureties to keep the peace, though the Constable be the same person upon whom the said assault was made: for in this case he doth nothing but preserve the peace, and observe the Law, which is to be done aswell in his own case, 13. H. 7. 10. as any others: And moreover if a Constable be informed, that a lewd man is in a suspected house, with a woman of evil name, for incontinency, he may take so many of his neighbours with him as he will, Arresting suspected persons. and arrest the said man and woman to find sureties of their good behaviour. And they, nor either of them shall have any action of False imprisonment or other action therefore against the said Constable, or any other of his assistants; for the Constable was ordained to keep the peace, 10. Ed. 4. 17. and to repress felons. And he may take surety by Obligation, if he find any committing of a fray, but upon no penalty. And if the party will not find sureties, the Constable may imprison him, until he hath found sureties. 9 Ed. 4. 26. 42 In an action of Trespass of assault, battery, and imprisonment, Imprisoning him that doth attempt to rob. the defendant pleaded, that the plaintiff lay in wait in a high way leading from the town of A. to the town of B. to rob such persons as travailed in that way, and assaulted to rob one L. and drew his sword, and commanded the same L. to deliver his purse, whereupon L. fled and levied Hue and Cry, and this defendant being travailing that way, pursued the plaintiff, and took him, and committed him to the Constable to be put in the stocks, who did it accordingly: and this was adjudged a good justification: for every man may arrest and imprison him that doth commit a felony, or him who maketh it apparent, that he doth intend, and go about to commit a felony: for that he doth manifest himself to be a principal breaker of the law and peace of the realm. Assisting to arrest by warrant. 43 In an action of false imprisonment against two, 19 H. 6. 43. 56. one of them pleaded that he had a precept to arrest the plaintiff which he did accordingly, And the other defendant pleaded that he came in company with the other to aid and assist him to arrest the plaintiff. And this was allowed a good justification in them both: for any stranger may assist a Sheriff, his Bailiffs or any other that hath authority to execute the King's writs or process, and he that will not assist him being required shall pay a fine to the King: And the Sheriff may take as many persons as he will to aid him to execute the King's writs, 3. H. 7. 1. 17. E. 4. 5. for it is in furtherance of justice and no breach of the peace. Breaking a house to arrest 44 If a man be indicted of Trespass, 27. Ass. pla. 35. 18. E. 4. 4. and a Capias pro fine awarded to the Sheriff to take the body of the same person, The Sheriff may break open his house, or close to arrest and imprison him, & it is a lawful imprisonment. But the Sheriff may not break any house or chest to make execution by virtue of a fieri facias to him directed. S. Force 32. The Sheriff arre●eth and doth not return his writ 45 If the Sheriff have a Capias to arrest a man, and he doth arrest him, and after doth not return his writ, the party arrested may have an action of false imprisonment against the Sheriff, and recover damages for his wrongful arrest or Imprisonment: for the Capias is, ita quod habeas corpus cius etc. and so if he have not the party's body in the King's Court at the day of the return of the writ, it shall be intended that he did not arrest him by force of that writ, nor according to the purport of it, but of his own wrong. But if the Sheriffs bailie do arrest the man, 11. H. 4. 58. 21. H. 7. 22. and the Sheriff doth not return the writ, the party arrested shall not have an action of false imprisonment against the Bailie: for the Sheriffs offence shall not prejudice the bailie, and the bailie can not compel the Sheriff to return the writ: for a Sheriff or a Bailie errant which is known and sworn may arrest a man without showing his warrant, A known officer may arrest without showing his warrant. for every man is bound to take knowledge of them; But where the Sheriff doth make a precept to an other to arrest, he must show his warrant. 21. H. 7. 22. 11. H. 4. 36. And if a Capias be awarded to the Sheriff without an original to take a man, and he doth take him, yet the party grieved shall not have his action of false imprisonment against the Sheriff, for that he did it by warrant of the Kings writ, Arresting a man by a Capias without an original. for it is a good plea in an action of False imprisonment to say that he is Sheriff of the County of M. and that he did arrest the plaintiff by force of a Capias directed to him, which is the same imprisonment. 22. E. 4. 47. Arresting upon suspicion of felony. 46 In an action of False imprisonment, 7. H. 4. 35. 27. H. 8. 23. it is no plea for the defendant to plead, that it was told him, that the plaintiff had brought cattle to the town, and put them in a blind corner, and that there was great cause of suspicion that the plaintiff had stolen them, whereupon he did arrest him; for suspicion only without a felony committed, is no cause to arrest an other. But if a felony be done in those parts, and one doth suspect an other to have committed the same felony, than he may arrest him: for a justice of peace can not arrest an other of suspicion of felony, 14. H. 8. 16. unless he himself doth suspect him to have committed felony, And somuch an other may do that doth suspect one to have committed felony viz. if he himself doth suspect him to have committed the felony. The common voice & fame of the country, cause of suspicion. The common voice and fame of the Country is a great cause of suspicion of felony where a felony is committed. 2. H. 7. 15. 5. H. 7. 4. 11. E. 4. 4. And therefore in an action of false Imprisonment, the defendant pleaded that there was a felony committed, and the common voice and fame of the Country was, that the plaintiff was a man of evil behaviour, and had done the same felony: whereupon he that was rob, came to the Constable and requested him to arrest the plaintiff, and the Constable came to the defendant and desired him to assist him to arrest the plaintiff, the which he did, and they arrested him. And this was allowed a good justification, and sufficient cause to arrest the plaintiff, seeing there was a Robbery committed, and the common voice and fame of the Country accused the plaintiff thereof. 5. H. 7. 4. And in like sort in an action of false imprisonment the defendant pleaded that I. S. was poisoned, and that the common voice and fame of the Country was that the plaintiff had poisoned him, whereupon the defendant apprehended the plaintiff, Suspected of poisoning. and committed him to prison, as it was lawful for him to do: And this was also adjudged a good Plea in bar of the said action, for seeing a felony was committed and the common voice and fame of the Country had accused the plaintiff thereof, every person who himself hath suspicion that the plaintiff hath committed the same felony may arrest him thereof. And so it is if in an action of false imprisonment, the defendant do plead, that before the imprisonment A. B. was slain at C. and the plaintiff was in the company of those who killed him at the time of the felony committed, 7. Ed. 4 10. 7. Eliz. Dy. 236. Suspected of Manslaughter. and the common voice and fame of the Country at C. was that the plaintiff was party to the felony, whereupon the defendant found the plaintiff at C. and arrested him for suspicion of felony, and committed him to the Sheriff, which is the same imprisonment. And this was allowed a good and sufficient Plea and not double, though the defendant did allege the common voice and fame of the country, and the being in company with those that killed A. B. for where a man doth justify for suspicion of felony, he may show as many causes of suspicion as he can. And it is a good cause of suspicion to say, Causes of suspicion. that hue and cry was levied after a felony committed, and that the plaintiff was a man suspected, Or to say that the plaintiff was a vagrant, exercising no trade to get his living by, and no labourer, Or to plead that parcel of the goods stolen were taken in the possession of the plaintiff. 38. Ed. 3. 6. 10. H. 7. 20. 47 In an action of false imprisonment, Arresting upon doubts of Manslaughter. the defendant pleaded that the plaintiff had so beaten and wounded an other man, that he was in great peril and danger of death, and that upon the same hue and cry was levied, whereupon the defendant being Constable did arrest and imprison the plaintiff four days, until it might be known whether the party wounded were like to live, or die, and when he perceived that the party beaten was like to live, he did let the plaintiff go at liberty: and this was adjudged a good plea in bar. 24. Ed. 3. 9 And in the like case in an action of False imprisonment brought against one, the defendant pleaded, that the King had directed a Commission to certain persons to apprehend those that were notoriously slandered for felonies, or great trespasses, notwithstanding they were not indicted thereof, and that the plaintiff had most dangerously wounded I.S. whereupon the Commissioners directed their warrant to the defendant, to apprehend the plaintiff, which he did accordingly: And this was allowed a good justification, and the plaintiff was barred of his action; for in both these cases the peace was broken, and at the time of the arrest it was uncertain whether the offence would prove felony or not. A justice of peace warrant to arrest a fellow. 48 In an action of False imprisonment, the defendant justified, 14. H. 8. 16. for that a justice of peace directed a warrant unto him to arrest the plaintiff for felony, which he did. And it was holden that a justice of peace cannot make a warrant to arrest a Felon, unless he be indicted, for he is a judge of record, and he must have a record whereupon he doth award his process. But if a bailiff serve his warrant, it is a good justification for him, though the justice of peace did err in the awarding of the process. And the same law is, if the Sheriff doth err in any warrant that he doth direct to the bailiff of a Liberty. Arresting an offendor, & delivering him to the Constable. If a man do arrest an other, 10. Ed. 4. 17. who he knoweth hath committed a robbery, man slaughter, or other felony, & do deliver him to the Constable to carry to the jail, and the Constable will set him at liberty, or doth not carry him to the jail, or that the same person arrested be rescued out of the possession or custody of him that did arrest him; yet in neither of the foresaid cases, he that was arrested shall have an action of False imprisonment against him that did arrest him, for that there was no default in him, that the offendor was not imprisoned according to his desert. Imprisonment until he hath made an Obligation. 50 An action of False imprisonment was brought for imprisoning the plaintiff, until he had made an Obligation of xl. 2. Ed. 4. 19 pounds to the defendant and others unknown by duresse, and this was adjudged maintenable, for if the plaintiff did not know their names, he could not express their names, for the Obligation is not the effect of this suit, but the imprisonment, and he shall not recover damages for the Obligation, but for the imprisonment, for that he is not yet damnified by the Obligation; because when that is sued, he may plead, that it was made by duresse of imprisonment, and so avoid it. But if the action of False imprisonment be brought of an imprisonment until he had made a fine, he shall recover damages for both, for he is presently grieved by the fine, and so is he not by the Obligation. 51 If a master do imprison a man in a house, 22. Ed. 4. 45. and deliver the key of the door of that house to his servant, The servant not chargeable for the master's offence. the party imprisoned cannot have an action of False imprisonment against the said servant for the keeping of the key. But if the servant that hath the key do know that the same party were wrongfully imprisoned, than he ought to let him go at liberty: for the servant is bound to obey his master's commandment, but in those things that be lawful only. And if the servant which kept the key did not know that the same party was imprisoned in that house, then upon his plea of not guilty, he shall be excused in an action of False imprisonment brought against him by the party imprisoned. Imprisonment by force of a justices. 52 If a writ of Nativo habendo, or a justicies be directed to the Shirif, 2. H. 4. 24. he cannot justify the impris. of any man by force thereof, for they be but commissions to hold plea. And the body of a man shall not be arrested or taken, but by process awarded out of a court of record, and by those Commissions the Shirises court is not made a court of record. 9 Ed. 4. 30. 53 In an action of False imprisonment, A warrant upon a Supplicavit. it is a good justification for the defendant to plead, that a Supplicavit came to the Sheriff to apprehend the plaintiff, who made his warrant to the defendant to take him, which he did accordingly. And yet the Sheriff can not give his authority to an other to take surety of him. 5. H. 7. 6. 54 A justice of peace can not direct a warrant to apprehend him who hath broken the peace, for he is to be punished by indictment, Arresting him who would break the peace. at the King's suit, or by action of Trespass of battery at the party grieved his suit. But he may direct his warrant to apprehend him who he doth doubt meaneth to break the peace in time to come, and to bring him before himself, or some other justice, or else to commit him to prison; for one justice of peace alone may do his endeavour to preserve the peace before it be broken: but being once broken it must be punished by indictment in the presence of divers justices of peace, or by action at the common Law. Sta. 5. El. 4. 55 If any servant, workman, or labourer, Imp. of a servant for assaulting of his master. shall wilfully or maliciously make any assault or affray upon his master, mistress, or dame, or upon any other that shall at that time have the charge or oversight of him, or of the work wherein he is appointed, or hired to work and being thereof convicted before any two of the justices of peace, Mayor, or head officer of a town corporat where the offence is committed, or before either of the Lords Precedents of the North, or Wales, by the confession of the said servant, workman, or labourer, or by the witness and oath of two honest men: Then every such offendor shall suffer imprisonment by the space of one whole year, or less, by the discretion of two justices of peace (if it be without a town corporat) & if it be within a town corporat, then by the discretion of the Mayor or head officer of the same town corporat, with two others of the discreetest persons of the same corporation at the least. And if the offence shall require further punishment, then to receive such other open punishment (so as it extend neither to life or limb) as the justices of peace in open Sessions, or as the more part of them, or the said mayor or head officers, or vj. or iiij. at the least of the discreet persons of the same corporation, before whom the offence shall be examined shall think convenient, for the quality of the said offence so committed. 56 By which foresaid cases, and many more, Where imprisonment is lawful, and where not. it appeareth that imprisonment is lawful, and sufficiently authorized by the Common Laws and Statutes of this Realm in divers respects, and for many crimes, and there is by it no breach of the peace, nor offence to the Law, when it is inflicted by the warrant of the law: for it advanceth as much the justice and peace of the Realm to have offenders punished, as to have the innocent protected. But the imprisonment which tendeth to the breach of the peace, and the offence of the law is, when one person or more upon his or their own authority, either in revenge of some supposed wrong received, or in hope of a private gain expected, or for some other cause, will of his or their own authority imprison or arrest an other; for the redress whereof the party grieved shall have an action of false imprisonment, or an action of trespass, & recover his damages. And the same offendor which before did wrongfully imprison an other, shall then upon his conviction by verdict, or his own confession, be himself lawfully imprisoned, until he hath paid to the king a fine. Imprisonment for offences done to the justice of the Realm. 57 As in the cases aforesaid, imprisonment of offenders is both tolerable & requisite, when it is inflicted for misdemeanours done to the peace of the Realm: so in many other cases it is as necessary when it is imposed for offences done to the law & justice of the Realm, being the foundation & principal pillar of the same peace, and without the due execution whereof there can not be a general and perfect peace. And amongst many other transgressors who do offend contrary to the justice of the Realm, and yet in a sort do preserve the peace, the law doth principally note four kind of persons worthy for their offences to be imprisoned. Whereof the first be they who do commit some acts that be wrongful, injurious, and prohibited by the common laws, or Statutes of the Realm: The second be they who do attempt and prosecute unjust and wrongful actions or suits, to molest, trouble, or charge others: The third be they who being impleaded upon just and good causes, do plead false, or dilatory pleas, in retardation of justice and hindrance of the due and ordinary course of the law: The fourth be they who upon stubborness, contumacy, or wilfulness, refuse to do that wh●●● they know the law doth require at their hands, and may enforce them unto: of every of which amongst many, I will insert some few cases. Imprisonment for committing unlawful acts As to the first by the Statute of Anno 5. Sta. 5. El. 14. Eliz. he shall be imprisoned, and set upon the pillory, who doth falsely forge, or willingly assent, or cause to be forged, or made, any false deed, charter or writing sealed, Forging of deéds. Court Roll, or the will of any person in writing, S. Forgery ● to the intent that the estate of freehold or inheritance of any person in any lands should be recovered or charged &c. for forging of deeds is an injurious and wrongful act, and always hath been hated, detested, and persecuted in this Realm. Sta. 13. E. 1. 11. By the Statute of Westm. 2. If the master do assign auditors to any bailiffs, Servants, Chamberlains, or other receivors which are bound to yield account, accountants found in arrerrages. and it chance them to be found in arrearages (all things being to them allowed) they shall be arrested, and by the testimony of those auditors committed to the next jail which the King hath in those parts, and shall be received by the Sheriff, or his Gaoler, and prisoned, fettered in irons, living of their own goods, until they have fully satisfied their master of all the arrearages; for detaining of the arrearages of an account is a plain and manifest wrong to the master: 27. H. 6. 8. And this imprisonment must be presently after the account taken, Disseison contrary to his own lease. and not any distance of time after. And he that doth a disseisin, or maketh an entry contrary to his own deed, 14. Ass. pla. 12. Or is convicted for the imbeziling of an Exigent, or for some other notorious deceits, committeth open and manifest injury, and therefore shall be imprisoned. 8. Ass. ●. 20. 28. Ass. pla. 28. If one man do make a lease of a Tenement by writing to an other for term of life of the lessée, whereupon the lessée doth enter and enjoyeth it, and after the lessor doth enter and disseise the lessée for life, and then the lessée do bring an Assize against the lessor, and recover against him the Tenement leased: in this case the same lessor shall be imprisoned, for that he made an entry contrary to his own deed, and so willingly committed an open and manifest wrong. 18. Ass. p. 3. The same law is, if a man do make a disseisin of land, of his whole title wherein he hath before made a release, or confirmation to the tenant of the same land, in this case he shall be imprisoned. And if a Guardian do take a feoffment of his wards land, being within age, Fitz. Assize 395. he shall be imprisoned therefore, for this, and all the former be injurious acts, and known to the offenders to be prohibited by the law. As touching the second point; they be also worthy to be imprisoned, who do attempt or prosecute unlawful suits, to the trouble & vexation of others: As if one do bring an Appeal against an other, 50. Ed. 3. 1. Imp. for prosecuting unlawful suits. and that appeal do abate by the plaintiffs nonsuit, or by any other default of his, he shall be imprisoned. A woman brought an Appeal of the death of her husband against one, 9 H. 4. 2. who was attainted and hanged at her suit; and after she brought an appeal against an other man of her said husband's death, who pleaded the attainder of the first man in bar, whereupon the appeal was abated, and the woman committed to prison for her wrongful vexation and suit. A woman brought an appeal against a man of the death of her husband, 8. H. 4. 18. and her said husband was brought into the court, and she was examined if that were her husband, who said yea, but she supposed that he had been dead, and therefore she was imprisoned for her false appeal. If one do bring an appeal against an other, for a Murder, Burglary, Robbery, or other felony committed in W. in the County of N. and there is no such W. in that County, the appeal shall abate, and the plaintiff shall be imprisoned: for it is manifest, that this suit was commenced upon malice, and to put the defendant to vexation and trouble, and not upon any just cause. Thirdly, they are worthy to be imprisoned, who do plead false, Imp. for false or dilatory pleas. or dilatory pleas, in hindrance of suits, and retardation of justice. As if a man in his plea do deny his own deed; 33. H. 6. 54. 45. Ed. 3. 11 6. Ass. p. 4. 24. E. 3. 74. Sta. 34. Ed. 1 or do plead a false deed made to himself, which is found against him by verdict; or do plead a deed that is razed, interlined, or otherwise suspicious that is adjudged against him, he shall be imprisoned. By the statute entitled De coniunctim feoffatis, if the tenant in Assize do plead jointenancy of the land in demand with his wife, Imprisonment for false pleading of jointenancy. or a stranger, and showeth a deed to testify the same, to the intent to abate the plaintiffs writ: and if it be found by the Assize that the exception was maliciously alleged to delay the plaintiffs right, the said tenant shall be one year imprisoned, though the assize pass for him against the plaintiff. And if that tenant in the assize be an Enfant, who doth plead jointenancy, yet if that plea be found against him, 37. Ass. pl. 1. he shall be imprisoned: for that the said statute is general, 3. H. 6. 51. St. 13. Ed. 1. 25. and doth not except an Enfant. By the statute of Westm 2. if he that is named a disseisor in an Assize, do personally allege any false exception, whereby the taking of the assize is deferred, viz. that at an other time an assize of the said tenements passed between the said parties, or that a writ of higher nature is depending between them of the said tenements, Imp. for failing of a record pleaded. and doth vouch any rolls or records to warrant the same, and at the day given he faileth of his warrant, he shall be adjudged a disseisor, without recognisance of the assize, and shall restore double damages of that which shall be found, and for his falsehood shall be one year imprisoned. And four, a man in divers cases shall be imprisoned for his stubborness, wilfulness, disobedience, and contempt to subjugate, and submit himself to the censure and judgement of the Law, and to perform & accomplish that which the law doth expect at the hands of him and all others being in his case. As if a Quid juris clamat, or Per quae seruitia, be brought against a man, Imp. for not attorning. who doth appear in Court, and will not attorn to the plaintiff, nor plead in bar, he shall be imprisoned for his stubbornness. And if the tenant that ought to do homage or fealty to his Lord, Imprisonment for not doing his true service. do appear in Court, and will not do such of the said services as be claimed of him, neither plead in bar thereof, Fitz. Per q seruitia 23. he shall be imprisoned until he will do his foresaid services, for his wilful contempt of the law, and disobedience to justice. And if a writ of Estrepement be directed to the Sheriff to prohibit him to commit waist in lands against whom a real action, Co. Lib. 5. 105. or action of Waste is depending, for, or touching the same lands: the Sheriff by force of the same writ may resist him who would do waist, And if he cannot otherwise redress the offence, he may imprison him, & if need be, he may take the power of the County to assist him; for this disobeying of the Kings writ, and resistance of the Sheriff, is a wilful frowardness and contempt of the law in the offendor, and therefore he deserveth to taste the smart of the Law by imprisonment for his contumacy. And in like sort by the statute of Ann 27. Stat. 27. H. 8. 20. Stat. 32. H. 8. 7. H. 8. & Ann 32. H. 8. it was ordained, That if any person after sentence difinitive given against him, by the Ordinary, his Commissary, or other competent minister, or lawful judge, do obstinately refuse to pay his Tithes, or duties, or such sums of money adjudged, wherein he is condemned for the same: Then two justices of the peace of the same Shire (whereof one to be of the Quorum) shall have authority upon information, Imp. for obstinate refusing to perform the Ordinaries sentence. certificate, or complaint made in writing by the ecclesiastical judge that gave the same sentence, to cause the same person so refusing to be attached, and committed to the next jail, and there to remain without bail or mainprize, until he hath found sufficient sureties to be bound by recognisance, or otherwise, before the same justices, to the use of the King to perform the said sentence. In the same manner may any one of the King's Council, or two justices of peace, upon an Information or request made to them by the Ordinary, St. 27. H. 8. 20. commit any offendor to ward, for any contempt, contumacy, disobedience, or any other misdemeanour of his in any suit, for subtraction of Tithes, offerings, and other duties of the Church, until he hath found sureties etc. ut gladius gladium iwet. What is Matheining. 58 Maiheming is an other gréevance in the Realm, and a special cause to disturb the peace: And that is when one member of the Common weal shall take from an other member of the same, a natural member of his body, or the use and benefit thereof, and thereby disable him to serve the common weal by his weapons in the time of war, or by his labour in the time of peace, and also diminisheth the strength of his body, and weaken him thereby to get his own living, and by that means the common weal is in a sort deprived of the use of one of her members. How many sorts there be of maiheming. 59 This maiheming is a dismembering of a man, or taking away some member, or part of his body, or the use thereof; As when a wound, blow, or hurt is given or done by one person or more to an other person, whereby he is the less able to defend himself in the time of war, or to get his living in time of peace: And therefore, if a man do put out the eye, or cut off the hand, or foot, or any joint of the hand, or foot of an other, it is a Maihem, though it be done by chance medley. Sta. 5. H. 4. 5 (But if one man of malice pretended, do cut out the tongue, or put out the eyes of any of the King's subjects, it is Felony) And if one man do crush the mouth, or head of an other, or break out his foretéeth, it is a mayhem, for with them he may defend himself in battle: but to break his hinder teeth, or to cut off his Nose, Fitz. Corone 458. or Ears, whereby he loseth his hearing, is no mayhem, but a deformity, or blemish of his body, and no weakening of his strength. It is a Maihem to pull any bone out of a man's head, or to cut off any finger of a man's hand, 28. Ed. 3 94. Lib. in't. fol. 45. or to break any of them so, that they become shrunk up, or dried up, or dead, or crooked. Gelding of a man is also a mayhem; though it be in a secret place, yet it maketh him more feeble, and unable to defend himself in in battle, or to work for his living. If by any wound received the sinews, or veins of a man be shrunk up, it is a mayhem. To cut off the cheek or jawbone of any person, Lib. intur fol. 45. or so to crush, or break any of them that the same person is the less able to take his meat or drink is a mayhem. If one person or more do take an other person by force, and put him in the stocks or otherwise bind him fast, and after pour so much scalding what oil, and vinegar, or hot melted lead, or other scalding liquor upon any part of his body, and so continue it until it doth waste, and consume the flesh of the same part, and dry up and mortify the veins and sinews of the same part, it is a mayhem. If A. do strike at B. and the weapon wherewith he striketh, breaking, or falling out of his hand by the force of the blow doth put out the eyes of D. this shallbe adjudged a mayhem, 13. H. 7. 14. for that A. had an intention at the first to do some hurt in striking at B. 60 The greatness or smallness of the wound in some of the cases aforesaid doth make the difference, whether it be a mayhem or not, Examination of a mayhem. which is to be examined by the justices of the court before whom the appeal of mayhem is depending, and by them to be decided, if they be requested by the defendant in the appeal and will condescend to do it. And they may award the Kings writ to the shirif of the county where the fact was done, to warn two expert surgeons of that County, 28. Ass. p. 5. 28. E. 3. 94. city or town, to appear in the same court at a day prefixed, to inform the court what they think of the wound, and whether they conceive it to be a mayhem or not: And if the wound be fresh, and new, and thereby hardly to be discerned, 41. Ass. pla. 27. whether it will prove a mayhem or not, the justices need not presently to examine it though the defendant in an appeal of mayhem doth desire it, or notwithstanding he doth plead that it is no mayhem. And if in an appeal of mayhem the defendant doth plead not guilty, 22. Ass. pla. 82. without requesting that the mayhem may be examined by the court, by this the defendant hath allowed that it is a mayhem. But if in an appeal of mayhem the defendant doth pray that the mayhem may be examined, 21. H. 7. 40. if the justices and the surgeons, (that they will call unto them) be in doubt whether it be a mayhem or not, the justices may refuse the examination, and compel the defendant to put himself upon the trial of the country: And yet in that case, if the defendant do pray that the mayhem may be examined, 6. H. 7. 1. 22. Ass. p. 99 by the court, if the justices do adjudge it a mayhem, it is paremptorie to the defendant, for he shall not after plead not guilty, or any other plea in Bar, seeing by his plea he hath allowed it to be a mayhem. But the court can not view the wound, and examine whether it be a mayhem or not, 28. Ass. p. 8. unless the defendant in the appeal will request it and refer it to their judgement. If in an appeal of mayhem the defendant do plead not guilty, 22. Ass. p. 82 without requesting that the mayhem, may be adjudged by the court, though the jury who are to try the issue do desire to see the plaintiff if he be maihemed or not, the plaintiff need not to show his wound, for by pleading not guilty the defendant hath allowed that it is a mayhem though he hath estranged himself from the committing thereof. 9 H. 4. 2. 61 If several men do at one time assault one man, and one of them doth mayhem him in one part of his body, divers appels of mayhem for one offence and an other in an other part, he may have several appeals of Maihem against them: for that they be several maihems which he hath received: And yet if several men do murder or otherwise kill a man, there may be but one appeal of murder maintained against them all, for that a man can have but one death. 40. Ass. p. 1. But if a man sue an appeal of mayhem against several persons, whereof against some as principals, and some others as accessories, and after appearance he is nonsuit, he can not pursue an other appeal of mayhem against the same persons, and charge those as accessories, which before he had named principals, nor those principals who before were suggested to be accessories. Principal and accessory in mayhem. 62 In an appeal of mayhem the plaintiff may choose to make all principals, or else to make him principal that did first strike him, 40. Ass. p. 9 41. Ass. pla. 16. and the residue accessory. The Law was holden in ancient time that the plaintiff in an appeal of mayhem, must have declared against all the defendants as principals: But now he may choose and make some principals, and some accessories: for an appeal of mayhem is in effect but an action of Trespass wherein the plaintiff shall recover damages, Maihem is a Trespass. The judgement in appeal of mayhem. according to the quality & quantity of the offence, and the defendant shall be imprisoned. 8. H. 4. 2 1. And if the plaintiff do bring an appeal of mayhem whereas it doth appear to the court that by the blow which was given him he is not maihemed, he shall pay a fine. Mainprize in an appeal of mayhem. 63 In an appeal of mayhem if it do appear to the court that the mayhem is very apparent, grievous, bloody, and extreme, 6. H. 7. 1. as if a man's legs or arms be broken, or that the party maihemed is in great peril of death, the defendant shall not be let to mainprize, no more than he should be in an appeal of murder, or burglary. But if the mayhem be not apparent, or that it is doubtful, and questionable whether it be a mayhem or not, than the defendant in an appeal of mayhem may be let to mainprize. And that also appeareth by the statute entitled officium Coronatoris: whereby it is ordained, Stat. 3. E. 1. that upon an appeal of mayhem, if the wounds be mortal, they which be appealed shall forthwith be apprehended, and kept until it be known whether he that is hurt shall recover or not: if he die they shall be retained, if he live, they shall be attached by four or six pledges according to the bigness of the wound, if it be for a mayhem then there shall be no less than four pledges, if a small wound two will serve. 64 In an appeal of mayhem the plaintiff doth declare that the defendant did mayhem him felonice ut felo domini Regis: Why mayhem is supposed to be done felomously. 40. Ass. pla. 40. 6. H. 7. 1. and so it may be called felony as petit Larcenie is called felony, or it may be termed felony, for that the blow which caused the mayhem may be a mean of his death within the year and day after the stroke stricken, and then it will be felony, or for that he which did give the blow had then a murdering mind and so a felonious intent. 65 It is a good plea in bar in an appeal of mayhem for the defendant to plead, Bars in appeal of mayhem. that the plaintiff at the place aforesaid, Li. intur f. 45. and at the day and year aforesaid, did make assault upon the defendant, and would have beaten and killed him, unless the defendant had then and there quickly defended himself against the plaintiff, and so the hurt and damage (if any were) that then and there did come to the plaintiff was of the plaintiffs own assault and in defence of the defendant. Iustifiing in his own defence. And likewise it is a good plea in bar in an appeal of mayhem for the defendant to plead the plaintiffs release made unto him after the supposed offence done of all actions personals, or of all actions, The plaintiffs release. or of all appeals, or of all demands: for in this case the plaintiff is but to recover damages. 7. H. 4. 30. 66 If an appeal of mayhem be brought against divers, execution in appeal of mayhem. & one of them doth appear in court and confess the mayhem, and is committed to the Marshalsea, and the plaintiff hath judgement against him, he can not sue against the residue, unless he will suffer him that hath confessed the mayhem to go at liberty: for if he hath judgement, and the body of him who confessed the mayhem to remain in prison, that shall be an execution for this whole mayhem. 67 The Sages and judges of the land in former ages did hold it for law, An action of Trespass after an appeal of mayhem. that if one do assault, Fitz. Coron 110. 22. Ass. p. 82 beat, and mayhem an other, and the party maihemed doth bring an appeal of mayhem against the offendor, and recover damages against him, yet after he may have an action of Trespass of assault and battery against the same offendor, and recover damages for his beating: and the recovery of damages in the appeal of mayhem shallbe no plea in bar against the plaintiff, for the appeal doth only meddle with the maiheming, & not with the beating. But if the plaintiff do bring an appeal of mayhem in the King's bench, 43. Ass. p. 39 and after appearance be nonsuit in the same, and then do bring an action of Trespass of assault and battery for the same fact, Then the defendant may plead the same appeal and nonsuit in bar against the plaintiff, and it is a good plea. 41. Ass. p. 16 Co. Lib. 4. 43. But of late years, viz. Ann 31. Eliz. it was adjudged, that in this and all cases, when the plaintiff for one wrong and injury is but to recover damages, he shall not be for that cause satisfied twice for one offence: And in these two actions of appeal of mayhem and trespass, the plaintiff shall only recover damages. And therefore it was adjudged a good plea in bar in an appeal of mayhem to plead, that the plaintiff had before brought an action of Trespass against the defendant of assault, battery, & wounding, and had recovered damages therein, and to aver that the same assault, battery, and wounding, and this maiheming were all one offence. 68 As the law hath provided remedies to punish those who by menace, Restraint of affrays by justices of peace. assault, battery, imprisonment, or maiheming, do break the peace, So hath it always had a vigilant eye by anticipation to prevent many others that would break the peace by any of the means aforesaid, and therefore hath from age to age, appointed meet magistrates and watchmen, to whose charge specially (as selected Sentinels) she did commit the preservation of the peace, who in times passed before the reign of King Edward the third were called conservators of the peace, Stat. 1. E. 3. 26. and sithence they have been termed justices of peace, because they be judges of record, or otherwise they be named Commissioners of the peace, because they have and derive their authority by the King's Commission: who himself being the chief and general Conseruator and Preserver of the peace throughout all his Dominions, doth by his several Commissions commit some particles of his authority, touching the continuance of the peace, and maintenance of certain of his Laws, to some chief and select men in all the parts of the Realm, whom he taketh to be the most meet men for the same, in respect of their integrity, wisdom, learning, courage, and livelihood. The form of so much of which Commission as toucheth the Peace and good Abearing is this. jacobus etc. praedilecto & fideli Conciliario nostro Thomae domino Elsmere domino Cancellario, nec non praedilectis, A.B.C.D.E.F.G. H.I.L.M.N.O.P. etc. The Commission of the Peace. Sciatis quod assignavimus vos coniunctim & divisim, & quemlibet vestrum justiciarios nostros ad pacem nostram in Comitatu nostro buck. conseruand', ac ad omnia ordinationes & Statuta pro bono pacis nostrae, ac pro conseruatione eiusdem, & pro quieto regimine, & gubernation populi nostri aedita in omnibus & singulis suis articulis in dicto comitatu nostro (tam infra libertates quam extra) juxta vim, formam, & effectum eorundem custodiend', & custo dire faciendum. Et ad omnes contra formam ordinationum vel Statutorum illorum aut eorum alicuius in comitatu praedicto delinquentes, castigandun & puniendum, prout secundum sormam ordinationum & Statutorun illorum fuerit faciendum. Et ad omnes illos qui alicui vel aliquibus de populo nostro, de corporibus suis, vel de incendio domorum suarum minas fecerint, ad sufficientem securitatem, de pace vel bono gestu suo, erga nos & populum nostrum, inveniendam, coram vobis seu aliquo vestrum venire faciendum: Et (si huiusmodi securitatem invenire recusaverint) tunc eos in prisonis nostris (quousque huiusmodi securitatem invenirent) saluo custodire faciendum. Et ideo vobis & cuilibet vestrum mandamus, quod circa custodiam pacis, ordinationum, Statutorum, & omnium & singulorum caeterorum praemissorum diligenter intendatis; Et ad certos dies, & loca, quae vos vel aliqui duo, vel plures vestrum (ut praedict' est) ad hoc provideritis, super praemissis faciatis inquisitiones, & premissa omnia & singula audiatis & terminetis, ac ea faciatis & expleatis in forma praedicta, factur in de quod ad justiciam pertinet, secundum legem & consuetudinem Regni nostri Angliae, saluis nobis amerciamentis, & alijs ad nos inde spectantibus. 69 And though there be many other offences mentioned in the said commission which the justices of peace are by force of the said Commission to inquire of, hear, and determine, and to punish the offenders therein, according to the laws and Statutes of the Realm: Yet as it appeareth by the words of the said commission, the same hath his chief care and respect of the peace, & to the preservation thereof. And to the intent that the said justices, or commissioners should the better remember and respect their charge and duty, they are called justices or commissioners of the peace, and not commissioners of justice, of conscience, or equity etc. And so their names, together with their offices, and duties be in a sort written in their foreheads. And the restraining or punishment of all the other offences mentioned in the said commission, do only tend to the maintenance of justice, the root, foundation, and supporter of peace. And whereas the King by the words of the said Commission doth appoint the persons therein named his justices to preserve his peace, The Commission doth chiefly respect the peace. and to keep and cause to be kept all ordinances, and Statutes made for the conservation of the peace, and the quiet government of his people: These Statutes amongst many others chief be intended, Sta. 2. E. 3. 6. 18. E. 3. 2. 34. Ed. 3. 1. the Statutes of Anno 2. Ed. 3. 18. Ed. 3. & 34. Ed. 3. by which it is ordained, that justices of peace shall have power to hear and determine at the King's suit all manner of felonies, Why they be called justices of Peace. and Trespasses, committed against the peace in the same County: and to restrain offenders, riottors, & all other barrators, and to pursue, take, and chasten them, to imprison and punish them according to their Trespass and offence, and to inform them according to the said justices discretion: And to inquire of all those that have been pillars and robbers beyond the Sea and become again, and go wandering, and will not labour as they had wont to do: And to take and arrest all those, which they can find by indictment, or suspicion, and to commit them to prison: Binding persons suspected to their good behaviour. And to take of all those which be not of good fame in the place where they remain sufficient surety and mainprize of their good abearing or behaviour towards the King and his people, and the other duly to punish, To the intent that the people be not by such Rioters troubled, or endamaged, nor the peace broken, nor any passengers by the way disturbed, or put in peril. But the fines which justices shall assess upon any person shall be reasonable, having regard the quantity of the Trespass, and the cause. 70 So that it appeareth both by the words of the said Commission of peace, A justice taking surety of the peace. and also by the foresaid Statutes, That a justice of peace by virtue of his office hath authority to prevent the breach of the peace, both by taking surety for the keeping of it, and for the good behaviour of the offenders, And that he may do either of his own motion, or discretion, or else at the request or prayer of an other. And by his own discretion he may cause a common Barretor, Rioter, or one that maketh an affray in his presence, or other person to him suspected to be inclined to the breach of the peace, 9 E. 4. 3. or men menacing one to hurt or kill an other, or contending in hot words, to find surety of the peace. And he may persuade one man to require the surety of peace against an other man, and he himself after may grant it: for it is no more than he might have done of his own authority: which surety of the peace, What the surety of the peace is. is a recognisance taken by the said justice of peace of the party and his sureties to the King, for the keeping of the peace. And as a justice of peace may take this surety of peace, or surety of good abearing, as a judge by virtue of his office; So may he do it as a minister by force of a Supplicavit directed unto him out of the Chancery; Taking surety of the peace by a Supplicavit. in which case he is then only to direct his precept to compel the party upon the writ to find surety of the peace. Which Supplicavit out of the Chancery is sometime directed to one justice of peace alone, sometime to more, and sometime to the Sheriff, and sometime to him with others: And then the same justice or justices of peace, or Sheriff must make return of the said writ of Supplicavit, and a Certificate of his doing into the Court from whence the same was awarded. And if the said justice of peace shall take the said recognisance for the keeping of the peace by virtue of his office, Sta. 3. H. 7. 1 then by force of the Statute of Anno 3. H. 7. he shall certify, send, Certificate of a recognisance or bring the same recognisance at the next Sessions of the peace where he is, or hath been justice, that the party so bound may be called. And if the party make default, the same then there to be recorded: And the same recognisance with the record of that default shall be sent and certified into the Chancery, the King's Bench, or into the Exchequer. Surety of good abearing. And the surety of good abearing is granted by authority of the foresaid commission of peace, & by the warrant of the before rehearsed statut of 34. E. 3. aswell as the surety of peace is, & it is ordained for the preservation of the peace, & it doth differ in nothing from that of the peace, but that there is more difficulty in the performance of it, and the party bound may sooner slide into the peril & danger of it. The surety of good abearing is most commonly granted in open sessions, or by two, or three Iust. of P. Or upon a Supplicavit, & great cause showed, & proved, it is granted in the Chancery or K. Bench. And though one justice of peace alone may grant it if he will, yet it is seldom done so, 9 E. 4. 3. Kel. fo. 41. unless it be to prevent some great, sudden, & imminent enormity or danger. The surety of peace is most times taken at the request of one for the preservation of the peace chiefly against one. But the surety of good abearing is oftentimes granted at the suit of divers, and those must be men of credit, and to provide for the safety of many: for the effect and purport thereof is, that the party bound shall demean himself well in his port, behaviour, and company, and do nothing that may be the cause of the breach of the peace, or in putting the people in fear or trouble: And it is chiefly granted against common Barrators, common rioters, common quarrelers, common peace breakers, and persons greatly defamed for resorting to houses suspected to maintain incontinency or adultery, and against those that be generally feared to be robbers or spoilers of the King's people, or which do endamage, disturb, trouble, Articles exhibited to have good abearing granted. or put in peril passengers by the way: Co. li. 4. 14. And therefore if one do exhibit Articles to justices of peace against a certain person, comprehending divers great abuses, and misdemeanours, not only touching the Petitioner himself, but many others, to the intent that the same person may be bound to his good behaviour: in this case the party so accused shall not for any matter contained in the said Articles maintain an action upon the case; for the party or parties who exhibited the said Articles have pursued an ordinary course of Iust. & nothing was attempted but the reformation of the man's conditions, and to have the peace and good behaviour continued. The surety of good abearing in other cases then for the peace. And though this surety of good abearing is chiefly provided for the continuance of the peace, yet by force of several Statutes it is also grauntable in some other cases. St. 10. E. ●. 3 As if the King do grant to any person a charter of pardon of any felony, than he shall come within three Months before the Sheriff and Coronors of the same County where the felony was done, & find six sufficient Mainpernours (for whom the said Sheriff and Coronors will answer) that he from thenceforth shall bear himself well and lawfully. Sta. 1. M. 3 And if any man disturb a Preacher in his Sermon he shall be bound to his good abearing for one year. St. 3. jac. 19 5. El. 21. And he shall be bound to his good abearing for seven years who doth unlawfully hunt and steal dear, or coneys or take away wrongfully any hawks, or hawks eggs, or shall unlawfully destroy or break the head or dam of any pond, pool, moat, stagne or stew whereas fish are put, or shall wrongfully fish in any of them, to the intent to steal or take away any of them, against the will of the owner or possessor of the same, not having lawful authority so to do. And he shall be bound with two sufficient sureties in CC. Sta. 23. El. 1. l. to the good behaviour which doth absent himself from the Church by the space of twelve months etc. 71 Because it appeareth by the words of the foresaid commission of peace, that the said justices of peace shall cause all those to find surety of peace which do threaten any of the King's people to hurt them in body, or to burn their houses: For whom & against whom the surety of peace is to be granted. Therefore all lay persons under the degree of Lords or peers of the Realm; and also Ecclesiastical persons, if they be not attendant upon divine service may be arrested to find surety for the peace. And if the husband do threaten to kill his wife, or outrageously to beat her, or that she hath any notorious cause to fear that he will do so, Fitz. Nat. Bre. 80. 239. she may demand the surety of the peace against him, and she shall have it granted. And in like sort and for the like causes may the husband demand surety of the peace against his wife, in which case she herself shall not be bound, but others shall be bound for her. And a justice of peace upon his own discretion may in either of the foresaid cases grant surety of peace. And one justice of peace may upon his own discretion, or at the request of an other grant the surety of peace, against an other of his fellow justices of peace of the same county. And one justice of peace may demand surety of peace of an other of his fellow justices against an other man. A man attainted of Treason, or Felony, or in a Praemunire, A man attainted. An Heretic. A Dumb man An Enfant. A Villeine. or abjured, or convict of Heresy, a dumb man, or an Enfant within the age of xiv. years, may demand & aught upon cause to have surety of peace. And so may a Villeine have surety of peace against his Lord, lest that his Lord should mayhem him, & the Lord may have surety of peace against his villain. A dumb man, or an Enfant above the age of xiv. year may also be enforced to find sureties for the keeping of the peace: but then themselves are not to be bound, but some others for them: Or else they must be committed to prison until they can find sureties. A justice of peace cannot grant surety of peace against a Baron of the Realm, nor any other above the degree of a Baron: A Baron. But the party who would have the peace against him, must bring him by Subpoena into the Chancery, Fitzh. Subpoena 20. & there he must be bound to the peace. A man that is frantic shall not have the surety of peace of his own demand, A mad man. because he hath not discretion to request it. But a justice of peace upon his own discretion may bind an other to keep the peace against him, if he see cause thereof. Neither shall he who is a Alien borne, & no Denizen, An Alien. nor in friendship with the King & the Realm have surety of peace granted him. 17. Ed. 4. 4. 72 If a man do threaten an other to imprison him, the party threatened shall not have the surety of peace against him that did so menace him, Upon what cause the surety of peace is to be granted. for that after he is imprisoned, he may have against the other a Homine replegiando, or an action of false imprisonment, and recover damages, & so be recompensed for his imprisonment. But if one man do threaten an other to beat him, the party threatened may have the surety of peace against him: for that beating may tend to the maiheming or killing of him, which the surety of peace might have prevented. If a man do fear that an other will kill him, mayhem him, hurt him in body, or burn his house, or procure, or cause the same to be done, and will come before a justice of peace, Fitz. Na. B. 79. & take his corporal oath to that effect, the justice of peace is to grant him the surety of peace against the man complained of: for that may satisfy the conscience of the said justice, that the party doth complain upon mere fear, and not upon malice or vexation. And though the party against whom the peace is demanded may seem to the justice of peace to be a simple person, weak, feeble, impotent, or far unable to encounter by force and strength with him that demandeth the surety of peace, yet he may procure, or cause the other to be slain, maihemed, beaten, or his house to be burned: And further if the party that doth complain and desires the surety of peace, will swear that he doth fear, where indeed he neither doth fear, nor hath cause of fear, yet his oath doth therein discharge the conscience and oath of the justice of peace. And the whole fault (if any be) shall be justly imputed to the complainor. 73 And whereas the words of the king's Commission be, Surety of peace enjoined by word or writing. That the said justices of peace shall cause all those to find surety of peace, which do threaten any of the king's people to hurt them in body, or to burn their houses. It is to be observed, that in some cases a justice of peace may by his own word only cause surety of peace to be found, & sometime he must do it by writing: As if one man do in the presence & hearing of a Iust. of peace, threaten to kill, mayhem, wound, or beat an other, or to burn his house, or in his presence do offer to strike, or beat an other, the justice of peace may command him by word to find surety of peace: Or if one man will demand of a justice of peace, the surety of the peace against an other man, who is then in the presence of the said justice of peace, and will then and there be sworn that he is afraid of him, the justice of peace may by word command the same party to find surety of peace: or otherwise he may command the Sheriff, bailiff, or some known officer, or his own servant being then present, to arrest the same party, and to bring him before him to find surety of peace. But if the party against whom the peace is demanded, or the Sheriff, or Bailiff be absent, and not at that time in the presence of the justice of peace: Then the same justice must make a warrant or precept in writing to the Constables, Boursholders, tithingmen, etc. or to any other man (though he be no Officer) to arrest the same party, and to bring him before him, or some of his fellow justices to find surety of peace. In which Precept must be contained the cause why the peace was granted, and at whose suit, to the intent that the party to be bound may provide his sureties ready, and take them with him to the justice of peace. Surety of peace commanded by writing. And the warrant aught to bear date of the place where it was made, 14. H. 8. 18. to the intent that if an action of False imprisonment be brought against him that made the same arrest by force of that warrant, the defendant in his plea must show the place where it was made. If surety of peace be required of a justice of peace of one County (which at that time remaineth out of the County where he is justice) against a man of the County where he is justice, the same justice may grant a precept to be served in the County where he is justice: A justice remaining out of the county. But when the party shall be warned to find sureties, Blow. Com. fol. 37. 13. Ed. 4. 8. the officer must not carry him out of that County to the justice that made the precept, but to some other justice of that County: for a justice hath no authority but in the County where he is justice. The serving of process for the peace. 74 If a Precept be made by a justice of peace (either as he is a judge, or as he is a minister) to two men to arrest a man to find surety of the peace, yet one of them alone may do it: If it be directed to the Sheriff, he may command his undersheriff, bailiff, or other sworn or known officer to serve it, Who may serve a warrant without writing, who not. without any precept by writing: But if he will command an other man that is no known officer to serve it, he must deliver him a precept in writing, for otherwise he doth if not by sufficient warrant, & so a writ of False imprisonment will lie against him for the arrest. And if a Iust. of peace do direct his warrant to the Sheriffs bailiff, his own servant, or to a stranger, to arrest one for to find surety of the peace, the party to whom that warrant is made must serve it himself, for he can command none other to do it, either by precept or word. A sworn & known officer, be he Sheriff, undersheriff, or bailiff, Who may serve a warrant without showing of it, and who not. etc. 8. E. 4. 14. 20. H. 7. 13. need not to show his warrant to a man when he cometh to serve it upon him, for his known office doth authorize him. But if a justice of peace will direct his warrant to his servant, or to an other stranger to serve, he must show his warrant to the party (if he will demand it) or otherwise the party may make resistance, and need not to obey it. And if the party against whom the surety of the peace is granted, Refusing to obey the justices warrant. will upon the serving of the justices precept, refuse to come to be bound to the peace, the party to whom the warrant is directed, may commit him to the jail of the same County, there to remain until he will find sureties. A warrant for the peace. Buck. The form of which warrant for the peace is this, viz. Antonius Greenway Miles, unus Iusticiariorum domini Regis nunc, ad pacem in Comitatu praedicto conseruandam assignatus, vicecomiti comitatus praedicti. Nec non omnibus & singulis Ballivis, Constabularijs ceterisque Dni Regis ministris, tam infra libertates quam extra in eodem come salutem. Quia A. B. de Bechampton in comitatu praedicto Taylor venit coram me, & sacramentum praestitit corporale, quod ipse sibi metuit damnum vel malum de vita & mutilatione membrorum per R.C. de Stonistratford in comitatu praedict' Butcher, vel per alium per eius procurationem ficri. Ideo vobis & cuilibet vestrum exparte dicti Domini Regis mando quod capiatis, seu unus vestrum capiat pfatum R. C. ita quod habeatis, seu unus vestrum habeat corpus eius coram me, vel aliquo sociorum meorum Iusticiaor̄ dicti dni Regis ad pacem in predict. Comitur conseruandam assignatur quam cito capi possit ad inueniendam sufficientem securitatem, quod ipse aliquod malum vel damnum de vita seu mutilitatione membrorum dicto A. B. non faciet nec fieri procurabit quovismodo. Et si hoc facere recusaverit tunc ipsum R. C. jail dicti dni Regis in comitatu predict' duci faciatur, seu unus vestrum duci faciat, ibidem moraturum, quousque hoc gratis facere volverit. Et qualiter hoc praeceptum fuerit executum scire facias dictis justiciarijs ad proxima generalem Sessionem pacis in com' paedict' tenendam, & habeas ibi tunc hoc preceptum. Dat. apud Lecomstead etc. 21. H. 7. 21. Co. li. 5. 59 75 If a justice of peace do direct his warrant to a Constable or other officer, to arrest one, and to bring him before the same justice, To which justice of peace the party arrested is to be brought. or some other of his companions to find surety of the peace, and he doth arrest him accordingly, but will not bring him before such a justice of peace as the party arrested will nominate, but before some other, yet notwithstanding the party arrested shall not have an action of false Imprisonment, or an action of the case, nor other remedy against the same Constable, or officer: for it is in the discretion of the same Constable, or officer, to bring the party arrested before which justice of peace of that County that he will, so that he dwell within a convenient distance, and not too far from the parties own habitation. But if a Supplicavit of the peace be directed to the justices of the peace, the justice to whom the writ is first delivered shall only make the precept to apprehend the party to find surety of the peace, and that precept shall be returnable before him only, and he only shall take the sureties, and only make the return without the others. Co. lib. 5. 59 And a justice of peace may if he will make a warrant to the Constable to bring the party before himself. 5. Ed. 4. 12. 76 If a justice of peace do direct his warrant to the Constable, A warrant to find surety to keep the peace or some other to cause A.B. to find sureties to keep the peace, The same Constable or etc. must first require the same A.B. to find sureties to keep the peace, and if he do refuse it, than he may arrest the same A. B. for if A. B. will find sureties, than the said Constable may not arrest him, because the purport of the precept is performed (which is if he refuse so to do, that then he shall convey him to the jail.) And if the Constable shall arrest A. B. after that he hath found sureties according to the precept, the same A. B. may have an action of false imprisonment against him, for that he hath arrested and imprisoned him without warrant, or cause. And likewise if the Constable do arrest A. B. and do not carry him before some justice of peace, 5. E. 4. 6. to find sureties to keep the peace or if he resist, or refuse so to do, then if he do not carry him to the jail, A.B. may have an Action of false Imprisonment against the Constable: The party must offer his sureties. And when the party cometh to the justice of peace by force of a warrant, he must offer sureties to the Iust. of P. or else he may commit him to prison: 14. H. 7. 5. for the Iust. needeth not to demand surety of him. Surety of the peace dieth with the king 77 The surety of peace is discharged by the king's death, 1. H. 7. 1. for the band is to observe the peace of the King, and when he is dead it is not his peace: So doth the death of the recognisor, & so doth also the death of him at whose suit it was taken, discharge the surety of the peace if in those cases it were not forfeited before. The justices authority dieth with the King. And in like sort when the King by his commission doth appoint justices of peace and after dieth, or giveth over his crown, the Authority of the same justices doth cease: for he maketh them justiciarios suos, and therefore when he dieth their authority endeth. The surety for the peace must be named. 78 When a justice of peace doth take sureties for the peace, 2. H. 7. 4. it is not sufficient to say, that I. N. hath found sufficient surety for the peace without naming the names of the sureties: but he must name their names and surnames. He that is vound to the peace must appear etc. 79 If a man do find sureties to keep the peace, 39 H. 6. 26. and hath day until a time prefixed, he must appear the same day (although he who demanded the peace do not appear) or otherwise, he shall forfeit his band. But it is otherwise where a suit is between party and party, and the defendant being taken by a Capias is bound to appear upon a day appointed. 80 When the surety of peace is granted against a man by a justice of peace, he will sometime rather desire to be bound to the peace by an other justice, then by him that granted the same, and made the warrant: And therefore he may offer himself to become bound to the peace to some other justice of peace of that County if he will, A Supersedeas for the peace. & then procure a Supersedeas from that other justice before whom he is bound to all other justices of that County to be discharged of any other arrest to be made of him, for the law doth not require that he should be several times bound for one cause. And this Supersedeas is sufficient although it neither name the surety, nor contain the sums wherein they are bound, but yet it is a better form to express them both, as the Chancery and King's Bench do. And when a man doth hear of such a precept awarded or granted against him by a Iust. of peace of the County where he dwelleth, he may go & either give surety of the peace in the K. Bench or else in the Chancery, & thereupon may procure a Supersedeas from the court where he is bound, to restrain the Iust. of peace of the County to take any surety of peace of him. And then the justices of peace of that County must forbear to make any warrant for the peace against the party; and if any of them have awarded it, A precept awarded by force of a Supplicavit. he must make a Supersedias to discharge it. But a Iust. of peace of the county by a Supersedeas cannot discharge a precept that is awarded by his fellow Iust. by force of a Supplicavit directed to him out of the Chancery or the K. Bench to take the surety of peace of one resident in that County. If any officer having a warrant from a Iust. of P. to arrest a man to find surety of the peace shall receive a Supersedeas out of the Chancery, or the King's Bench, or from any justice of the King's Bench or from any justice of peace of that County where he is commorant, to discharge the same surety of peace, will nevertheless urge that party against whom the same warrant is granted to find new surety for the peace, he may refuse to give it: And if the said officer will thereupon under the colour of his warrant commit him to prison, the party imprisoned may have an action of false impris. against him: for the the said warrant is discharged by as great authority, or greater, as it was made, and the thing for the which it was made is effected. The form of which Supersedeas granted by a justice of the peace is this, viz: Thomas Denton Miles, Buck. unus Iusticiariorum dni Regis nunc ad pacem in Comitatu pndicto conseruandum assignatur, Vicecomiti comitatus praedicti: A Supersedeas for the peace. Nec non cibus & singulis Ballivis, Constabularijs, ceterisque dicti dni Regis ministris, tam infra libertates quam extra in eodem Coni Saluten. Quia A. B. de Poundon in come praedict' labourer venit coram me, & in venit sufficientem securitatur qd'ipse comparebit ad proximam generalem Sessionem pacis in come praedicto tenend'. Et quod ipse interim pacem dicti Dni Reg. erga ipsum dominum Reg. & cunctum populum suum, & precipuè erga C. D. de Twyford in come praedicto Husbandman conseruabit ideo ex part dicti dni regis vobis & cuilibet vestrum mando, quod de arrestando, imprisonando, seu aliqualiter molestando praedictum A. B. ex causa pndicta Supersedeatis, & quilibet vestrum Supersedeat omnio. Et si eum ex dict' causa, & non alia ceperitis, seu imprisionaveritis, seu aliquis vestrum ceperit, seu imprisonauerit, tunc à prisona illa s●ne dilatione deliberari faciatis, Supersedeas in the Chancery for one bound in the common pla●e. datum apud Hilsdon etc. 22. H. 6. 59 But if a man be arrested in the common place for the surety of peace, and he is let to bail, to a certain day, at which day he doth bring a Supersedias out of the Chancery, that he hath found sureties in the Chancery: that is not alloweable, because he was by bail, which is an imprisonment in law, and therefore the surety in the Chancery will not serve. And it may be that the sureties in the Chancery be not sufficient, and that the King and the Court was deceived therein. And yet the common place hath no authority to take surety of peace, 2. H. 7. 1. but of the peace broken before them. 81 When the party against whom the precept is awarded to find sureties for the keeping of the peace, A recognisance for the keeping of the peace. doth come before the justice of peace to be bound to the peace, than it resteth in the discretion of the same justice of peace (if he deal in this cause as a justice of peace by force of the general commission of peace, and so as a judge) to assign what number of sureties he will accept to be bound with the party, in what sum of money the party & his sureties shall be bound, to allow, or disallow of the sufficiency of those sureties, to limit the time how long the party shall be bound, and to determine upon some such other circumstances touching that matter. But if the same Iust. of peace be commanded as a minister in the execution of the writ of Supplicavit, to take the peace of any person, than he must do as the writ doth direct him, which sometime is to take sufficient surety to be bound in a sum prescribed, and some other time not, & then it resteth in his own discretion. The most usual manner is for a justice of peace to take two sureties, besides the party himself, to be bound by recognisance to the King, viz. Domino Regi, and that must always be for the keeping of the peace. The form of which recognisance for the keeping of the peace is as followeth, viz. Memorandum qd' nono die Augusti, Anno regni dni nostr' Regis jacobi dei gratia etc. 5. A.B. de Padburie in Comitatu predict' Husbandman, Buck. in propria persona sua venit coram me Richardo Ingols by Milite, uno Iusticiariorum dicti dni Regis ad pacem in dicto Comitatur conseruandam assignatorun, & assumpsit proseipso sub poena xx. li. et D.E. & H.I. de C. in Comitatur praedictur Husbandmen, adtunc & ibm' in ꝓprijs personis suis similiter venerunt, & manuceperunt pro praedicto A. B. viz quilibet eorum seperatim sub poena x. li. quod idem A. B. personaliter comparebit coram justiciarijs dicti domini Regis ad pacem ad ꝓximam generalem Sessionem pacis in Commpndicto apud Buck. tenendam, ad faciendum & recipiendun quod ei per Curiam tunc & ibidem iniungetur. Et quod ipse interim pacem dicti dni Regis custodiet erga ipsum dominum Regem & cunctum populum suum, & praecipue versus L.M. de O. de comitatu praedict. Et quod damnum vel malum aliquod corporale, aut gravamen praefatur L.M. nec alicui de populo dicti domini Regis quod in laesionem aut perturbationem pacis ipsius Domini Regis seu praefati L.M. cedere valeat, quovismodo non faciet, nec fieri procurabit. Quam quidem summam xx. l'. praedict' A.B. & quilibet manucaptorum praedictorum praedictas seperales summas x. l'. recognoverunt se debere dicto domino Regi, de terris & tenementis bonis, & catallis suis, & cuiuslibet eorum ad opus dicti domini Regis fieri & levari ad quorumcunque manus devenerunt, si contigerit ipsum A.B. praemissa vel eorum aliquid in aliquo infringere, & inde legitimo modo convinci. In cuius rei testimonium ego pndictus Richardus Ingolsby sigillum meum apposui. Datur apud Lethenborow die & Anno supradict'. And the form of the recognisance for the good abearing is this, viz. A recognisance for the good abearing. Memorandun etc. & quod ipse A. B. interim se bene geret erga Dnmm Reg. & cunctum populum suum, & praecipuè erga L. M. Et quod ipse non inferet nec inferri ꝓcurabit per se nec per alios, damnum aliquod seu gravamen pfato L.M. seu alicui de populo ipsius dni Regis de corporibus suis, per insidias, insultus, seu aliquo alio modo quod in laesionem seu perturbationem pacis dicti dni Regis cedere valeat quovismodo, viz. uterque praedict' D. E. et H. I. sub poena 50. libr', et praedict' A. B. sub poena 100 libr' etc. And this may be done by a single recognisance in Latin, with a Condition thereunto added in English for the keeping of the peace, or the good Abearing, and for the day and place of the party's appearance at the Quarter Sessions. 82 A justice of peace who upon his own discretion compelleth one to find surety of the peace until a certain day, may upon the like discretion release the same before that day: A Release of the surety of peace. But if a justice of peace do grant the peace at the request of an other, viz. at the suit of A. and that the recognisance be taken to keep the peace against A. then may the same A. only release it, and none other, before the same justice of peace, or any other justice, that will certify the same release before the justices of peace at the next quarter Sessions; for that certificate being of record will discharge it, which a release by deed can not do, the surety of peace being a recognisance, and so of itself a record. And though the recognisance be versus cunctum populum, & precipuè versus A. yet may the same A. release it: for though it may seem popular, and that others should have equal interest therein with A. yet as it appeareth by the word precipuè, it was specially taken for his safety. But though in some case a justice of peace may release the surety of the peace, & in some other case the party, yet the King can in neither of the said cases release it until it be forfeited, for the mischief that may come to A. thereby, though the recognisance be taken domino Regi, for that it is not a debt unto him until it be forfeited: But being forfeited, than the King, and none other may release & pardon the forfeiture. And in the cases aforesaid, though the Iust. of peace, or the party may release the surety of the peace, Buck. The justices release of the peace. yet the recognisance before taken for the surety of the peace must not be canceled, lest the peace was broken before the release made, & so the recognisance was forfeited. And the form of the justice of peace release of the peace is this: Ego pfatus Paulus Risley armiger, unus Iusticiariorum dni Regis nunc ad pacem in Commpndictur conseruamdam assignatur, qui S. T. de Preston ad securitatem pacis inveniendam mea discretione compuli eandem securitatem pacis, quantum in me est, in mea discretione 10. die Maij Ann 5. Reg. jac. etc. remisi & relaxavi. Dat' apud Chetwood etc. And the form of the release of the party before the same justice that took the recognisance of the peace is this: Memorandum quod 10. die julij Anno 5. The parties release of the peace. Regis jacobi etc. A. B. venit coram me Francisco Cheney Milite, uno Iusticiariorum dom Regis nunc ad pacem etc. & gratis remisit & relaxavit (quantum in se est) praedictam securitatem pacis per ipsum versus supranominatum S. T. petitam. In cuius rei testimonium, ego pfatus F. C. etc. Datur apud Chessam Bois etc. And in like sort the justice or justices of peace may do, which took surety for the good abearing, if they see cause. 83 The peace or good abearing is broken, Causes of the breach of the peace, or good abearing. & the Recognisance taken for the keeping of the same, is forfeited by violent, extreme, malicious, and unlawful menacings, assaults, affrays, batteries, strikings, or imprisonments: as if a man bound to the Peace, do wrongfully and maliciously menace, assault, beat, or imprison another: or do forcibly thrust him into a river, well, or pond, whereby he is in danger of drowning: or do ravish a woman against her will: or do commit manslaughter, burglary, or robbery, or treason against the person of the King. Br. peace 20 And if a man be bound to the peace, & after he doth procure another to break the peace, this is a cause of forfeiture of his recognisance, taken for the surety of the peace, for that the peace is broken by his means. 18. Ed. 4. 28. And if one be bound to the peace, & after do menace I. S. to his face, & in his presence to kill or beat him, this is a breach of the peace. But if I. S. be absent when he is menaced, then is it no breach of the peace, unless the same party do, according to his menace, lie in weight to kill or beat I. S. for then also it is a breach of the peace. 22. Ed. 4. 35. And though the surety of the peace be not broken without fight, 2. H. 7. 2. beating, imprisoning, or extremity of menacing, yet the surety of good abearing may be forfeited by the extraordinary number of people, 10. H. 7. 12. that the party bound hath attending upon him, or by his wearing of harness, or other weapons more than before he hath usually done, or be meet for his degree or estate, or by using of rigorous or terrible words, or threatenings tending or inciting to the breach of the peace, or indemeaning himself in his behaviour, company or gesture, or doing of any thing which shall tend to the breach of the peace, or to put the people in dread or fear. 84 As the wisdom of the Realm hath ordained justices of peace to be preseruors of the peace, and men wholly or specially devoted & assigned to that office. So hath she made choice of other magistrates, who with their other offices have the conservation of the peace annexed to their charges, & as a thing incident or inseparable from their other functions, and go continually linked arm in arm with them: As every Sheriff in his County, every Coroner, The Sheriff, Constable, etc. conservators of the peace. high constable of any lath-rape, wapentake, hundred or franchise, and every petit Constable, Borshoulder, Tithingman, Headborough, Boroughhead, Thirdborough, and chief pledge in every Town, Village, & hamlet, is within his limits and the precincts of his authority a conseruator of the peace. And so is the Steward in every Léete, and view of frank pledge, & the Steward of every Court of Pipowders a conseruator of the peace, and if an affray be made in their presence sitting in their Court, each of them may commit the offenders to prison. And they all are in duty first to bend their care & foresight to prevent the breach of the peace, next to employ both their own valour and strength, & to command the help & force of others to pacify those who by word or deed are in breaking of the peace: And thirdly to punish those who have broken the peace, according to the law. St. 5. F. 3. 14. And therefore any of the officers aforesaid may take, and arrest suspected persons which walk in the night, and sleep in the day, and carry them before a justice of peace to find sureties of their good behaviour. Sta. 13. E. 1. And if any be taken by watchmen in the night watch that is suspected of evil behaviour, they may take him and imprison him, until he be delivered by the ordinary course of law. And if any do go or ride armed by day or night in fairs, or markets, or other places (saving the King's servants in his presence, or in executing of his precepts, or such as do pursue hue and cry where offences be done) any of the same officers may take their armour from them to the King's use, and commit them to the jail. And if any assemblies, Rout, or rumour shall be begun, St. 17. R 2. 8 the Sheriffs and other the King's officers, shall take the power of the County and disperse them, and shall commit the offenders to prison until they be duly punished according to the law. And if any do threaten to kill mayhem, or beat an other, or do attempt or go about to do it; then any of the said officers may arrest the offendor to come before a justice of peace, to find surety for the keeping of the peace, or else the same officer may commit him to prison. 1. H. 7. 7. And if either of the said officers shall perceive any other in his presence to be in breaking of the peace, either die drawing of their weapons, or by assaulting or striking one of an other, or by assaulting himself, he may command them upon pain of imprisonment to surcease, 5. H. 7. 6. or else he may with his weapon part & keep them asunder, and call and procure others likewise so to do. And then he may carry them before a justice of peace to find surety of the peace, which if they refuse to do, he may commit them to prison, 3. H. 4. 9 or else the Constable may take sureties of them by Obligation to keep the peace. And if any of the offenders do flee into a house, 13. Ed. 4. 9 the said officer may break open the doors and arrest him, and so he may do if the offendor do flee into another County, for that the arrest is for the benefit of the commonweal. And likewise if any of the said officers shall learn that certain persons be fight or quarrelling in a house, in such sort that they are like to break the peace, or that a man and a woman be in a house together committing addultery or fornication, 7. E. 3. 10. 1. H. 7. 6. he may break open the doors and arrest them to come before a justice of peace to find surety of the peace, or otherwise if he will, he may commit any of the said offenders to prison. And if any of the parties to an affcay have received any dangerous wound, than the officer must arrest the offendor, and carry him to a justice of peace, 22. Ass. p. 56 who is either to commit him to prison, or to let him to mainprize until the next jail delivery, that it be known whethir the party wounded will live or die thereof: or else the officer himself may commit him to prison until the same be known: 38. Ed. 3. 6. for if the party wounded do die, the offence will be felony. If the common voice and fame of the County be that C.D. hath committed a felony, any of those officers that do suspect him thereof may arrest him for it. And so he may search within the limits of his authority for any people suspected of felony, for it is a chief part of the Constable's duty to preserve the peace and repress felons. And if any of the officers before mentioned do arrest an offendor, or any person suspected for any of the causes aforesaid, who ought to be carried to the jail, or before a justice of peace, the same officer need not carry him presently to the jail, 22. Ed. 4. 35. or before the justice, but he may put him in the stocks, or some other safe custody for a time, until he can provide sufficient company to assist him to conduct the same offendor to the jail or to the justice: 2. Ed. 4. 9 Or if the party arrested be so sick, diseased, or wounded that he cannot be presently carried without danger of death, the officer may stay him until he be recovered. 85 But the peace of the Realm hath been so precious to all ages; Every able person is a Conseruator of the peace, and Treasons, Felonies, assaults, batteries, and other forcible violences and offences so odious, that the Laws and Statutes of the Realm, and the wisdom of our forefathers have made and appointed (besides the Magistrates and officers before mentioned) all sorts of able persons, in some sort, and to some purposes, preservers of the peace; intending that as all the members of the common weal, do taste sweet comfort, and pleasant repose by the benefit of peace, so they should be all partakers, when need requireth of the pains to maintain and continue the same peace, and to punish the transgressors thereof. Sta. 3. E. 1. 9 And therefore by the Statute of Westm 1. it is ordained, That all men generally shall be ready at the commandment and summons of the Sheriffs, and at the cry of the country, to pursue and arrest felons, when need shall be, aswell within franchises as without; and they that will not, and be thereof attainted, shall make a grievous fine to the King. Sta. 3. Ed. 1. By the statute entitled Officium Coronatoris it is enacted, That upon all Homicides, Burglaries, men slain, or put in great danger, hue and cry shall be levied, and every man shall follow the hue and cry, and the offenders steps if it may be: and whosoever doth not, and is thereupon convicted, shall be attached to appear before the justices of jail delivery. St. 5. E. 3. 14. By the Statute of Anno 5. Ed. 3. it is established, That if any man suspect lewd persons (then termed robertsmen, wasters, or drawlatches) of any manslaughters, felonies, or robberies, be it by day, or night, they shall incontinently be arrested by the Constable of the town, and if it be within franchise delivered to the bailiffs of the franchise, and if in guildable to the sheriff, and kept until the coming down of the justices of jail delivery, who shall proceed to the deliverance of them. St. 17. R. 2. 8. By the Statute of 17. R. 2. it is defended to all the King's people aswell Lords as others, that none shall make assemblies, Riots, or Rumours against the peace. And if any such assembly be begun, as soon as the Sheriff and other Ministers may have knowledge thereof, they with the strength of the country shall disturb such offenders, and put them in prison until the law be executed upon them. And all Lords and other liege people of the Realm shall be attending with all their strength and power to the Sheriffs and Ministers aforesaid. St. 2. H. 5. 8. By the Statut of Ann 2. H. 5. it is provided, That the King's people being able to travail in the County where Riots, assemblies, or routs against the law be shallbe assistant to the justices, Commissioners, Sheriff, or undershirif of the same County, when they shallbe reasonably warned, to ride with the said justices, Sheriff etc. in aid to resist such Riots, Routs, and Assemblies, upon pain of imprisonment, and to make fine and ransom to the King. St. 15. R. 2. 2 By the Statute of 15. R. 2. it is ordained, That if the Sheriff, or any other of the County do not attend upon a Iust. of peace, to arrest such offenders as do make forcible entries into lands or tenements, he or they so offending shall be imprisoned, and pay a fine to the King. Sta. 1. M. 12. By the Statute of Ann 1. M. it is established, That if any person being above the age of xviij. years, and under the age of lx. being able to serve, and not sick, lame, or impotent, shall be required by any justice of peace, or any Sheriff of any County, where any unlawful assembly of xii. persons or above shall be to do any unlawful act prohibited by that statute; or by any Mayor, bailiff, or other head Officer of any City, Borough, or town corporat; or by any other by the commandment of any such justice, Sheriff, Mayor, etc. to go with him or them to suppress the persons unlawfully assembled: Then every person, which so being able and required, doth willingly and obstinately refuse so to do, shall suffer imprisonment for one year without bail or mainprize. And as in all the cases aforesaid every able person is bound upon request to assist the justices, sheriffs, & other the King's officers, to pursue, apprehend, arrest, and imprison Manquellers, robbers, felons, or other disturbers of the peace, and so to do his whole endeavour to be a conseruator of the peace of the Realm: Every person must assist to execute the K. Writ. In like sort is every able person bound by the common law, and by the Stat. of Westm 1. & Westm 2. to be attendant upon the Sheriff, St. 3. E. 1. 17. S. 13. E. 1. 39 or undersheriff, in the execution of the king's writs, and by that means to be a supporter of the justice of the Realm. These offences punishable in the Star Chamber. 86 Menaces, assaults, batteries, imprisonments, and maihems committed by some persons, to some persons, at some times, in some places & in some manner, form, sort, and with some circumstances (besides the penalties aforesaid inflicted upon the offenders therein) are also punishable in the King's high Court of the Star chamber as other offences hereafter mentioned be, as it doth more at large appear in Oppressions 35. ¶ Of Riots, Routs, unlawful and rebellious Assemblies. RIots, Routs, The enormity of Riots. unlawful & Rebellious assemblies have been so many times pernicious, & fatal enemies to this kingdom, the peace, & tranquillity thereof, & have so often shaken the foundation, and put in hazard the very form and state of government of the same, that our lawmakers have been enforced to devise from age to age one law upon an other, & one stat. after another for the repressing & punishing of them, & have endeavoured by all their wits to snib the sprouts, & quench the very first sparks of them: as every man may easily perceive there was cause thereof, who will look back, and call to his remembrance, what that small Riot begun at Dartmouth in Kent in the reign of King Richard the second between the collector of a subsidy, and a Tyler and his wife, about the payment of one poor great did come unto, which being not repressed in time, did grow to so great a rebellion, that after it put in hazard the life of the K. the burning of the City of London, the overthrow of the whole Nobility, gentlemen, and all the learned of the land, and the subversion of this goodly Monarchy and form of government: Or if they will call to mind the small Riot, or quarrel begun in the reign of King Henry the sixth between a Yeoman of the guard and a servingman of Richard Nevil's, Earl of warwick, which so far increased for want of restraint, that it was the root of many woeful tragedies, and a mean to bring to untimely death, first Richard Plantagenet Duke of York proclaimed successor to the Crown, and the chief pillar of the house of York, and after him King Henry the sixth, and Prince Edward his son, the heirs of the house of Lancaster; and to ruinated with the one, or the other of them, most of the Peers, great men, and gentlemen of the realm, besides many thousands of the common people. West. 1. 3 E. 1. 32. Sta. 7. Ed. 1. St. 13. E. 1. 6. And therefore King Edward the first did well ordain, That no Sheriffs shall suffer Barrators or maintainers of quarrels in their Counties: And that to all parliaments, Treatises, and other assemblies, each man shall come peaceably, without any armour: and that every man shall have armour in his house according to his ability to keep the peace. And King Edward the third provided, Statutes ordained to prevent forces or Riots. that no man shall come before the justices, St. 2. E. 3. 3. St. 5. E. 3. 14. nor go or ride armed. And that suspected, lewd, and riotous persons, shall be arrested and safely kept until they be delivered by the justices of jail delivery. St. 34. E. 1. 3. Sta. 2. R. 2. 6. And that justices of peace shall restrain offenders, rioters, and all other Barrators, and pursue, take, and chasten them, according to their Trespass and offence. Sta. 5. R. 2. 6. St. 15. R. 2. 2 St. 7. R. 2. 13 King Richard the second did prohibit Riots, Routs, and forcible entries into lands, that were made in divers counties and parts of the Realm. And that none from thenceforth should make any Riot, or Rumour. And that no man shall ride armed, 20. Rich. 2. 1 nor use Launcegays. And that no labourer, servant in husbandry, or Artificer, St. 12. R. 2. 6 or victualler, shall wear any buckler, sword, or dagger. And that all the King's officers shall suppress and imprison such as make any Riots, Routs, St. 17. R. 2. 8. or unlawful assemblies against the peace. King Henry the fourth enacted, That the justices of peace, & the Sheriff shall arrest those which commit any Riot, Rout, or unlawful assembly; shall inquire of them, and record their offences. St. 13. H. 4. 7 King Henry the fift assigned commissioners to inquire of the same justices & Sheriffs defaults in that behalf, St. 2. H. 5. 8. and also limited what punishment offenders attainted of Riot should sustain. King Henry the seventh ordained, Sta. 19 H. 7. that such persons as were returned to inquire of Riots should have sufficient freehold or copyhold land within the same Shire. And that no maintenance should hinder their Inquisition. And in the Reign of Queen Mary, Sta. 1. M. 12. there was a necessary Statute established to restrain and punish unlawful and rebellious assemblies raised by a multitude of unruly persons, to commit certain violent, forcible, and Riotous acts. 2 As the said Laws & Statutes were devised in several ages by the wisdom of the Realm, to inquire of, and restrain Riots, Routs, unlawful, and rebellious assemblies, and to check violences, and forces, before they should grow to a head: So have our provident forefathers erected the most honourable Court of Star chamber, The Court of Star chambers authority to punish Riots, etc. to examine and punish those, and other offences, when they break out to extremities, viz. to great and heinous Riots, or such like enormities, thereby to keep every person in awe, and so the whole Realm in peace. As appeareth by the Statute of Anno 3. H. 7. whereby it is enacted, That the Chancellor, and Treasurer of England for the time being (and the Precedent of the King's Council, St. 3. H. 7. 1. Stat. 21. H. 8. 22. and the keeper of the King's privy seal, or two of them) calling to them a Bishop, and a Temporal Lord of the Kings most honourable privy Council, & the two chief justices of the K. Bench, and common place for the time being (or other two Iust. in their absence) upon bill, or information put to the said Chancellor for the King, or any other against any person (for any misbehaving by unlawful maintenances, giving of liveries, signs and tokens, retainers by Indentures, oaths, writings or otherwise, embracery of the King's subjects, untrue demeanings of Sheriffs, in making of panels, and other untrue returns, by taking of money, by injuries, by great Riots and unlawful assemblies) have authority to call before them by writ, or by privy seal, the said misdoers and they, and other, by their discretion by whom the truth may be known, to examine, and such as they find therein defective, to punish them according to their demerits, after the form and effect of the Statutes thereof made, in like manner and form, as they should or ought to be punished, if they were thereof convict after the due order of the law. And though the justices of peace do assess a fine in the Country upon some that have committed a Riot there, yet the Lords in the Star chamber, may assess upon the said offendrs for the same Riot, a greater penalty, if they see cause; for in this case the offenders be not twice punished for one offence, but part of the due punishment is inflicted at one time, and part at another: And the Lords do sufficiently punish an offence, which was but remissly done by the justices. 3 A Riot is where three persons or above do assemble themselves together, to the intent to beat or mayhem a man, to pull down a house, wall, pale, What is a Riot. hedge, or ditch wrongfully, to claim or take common or way in a ground, to destroy any park, warren, dove-house, pond, pool, barn, mill, or stack of corn, or to do any other unlawful act with force and violence, and against the peace, and they do it. If a man go abroad with his household servants which he hath commonly of his own family (though they be more than his ability or degree is to maintain) and doth make a fray by the way, this is no Riot, unless the Master did before make his servants privy, that he meant to make an affray: for it is no riot, except there be an intent before to do some violence and hurt. If three, four, or more do enter into lands with force, upon the possession of an other, though their entry be lawful, yet is it a Riot, St. 5. R. 2. 7. for the Statute of Anno 5. Richard. 2. doth prohibit entry into Lands and Tenements with force, or a multitude of people. 4 An unlawful assembly is, where three persons, or above, What is an unlawful assembly. do assemble themselves together, to the intent to do any of the Acts aforesaid, or any other such unlawful act, with force and violence against the Peace, although they do it not indeed, but after their assembly they depart by their own consent, upon some fear conceived, or other cause, without doing of any outrage, for their intent of assembling was unlawful, though the act subsequent did not ensue according to the same. 5 A Rout is, where three persons or above do assemble themselves, What is a Rout. for the revenge of their own common quarrel. As, if the Inhabitants of a Town do assemble together to pull down a house, wall, pale, ditch, or other enclosure, of a park, pasture, or close, or the head of a pool, where they wrongfully pretend to have title of common, or a way, or to beat, or mayhem one man, or more, that have done to them all some public offence. If they once meet, 17. Ed. 4. 4 proceed, and go forward, towards the execution of any of the Acts aforesaid, and do show by Armour, Gesture, or Speech, that they mean to do any violence, or to terrify or fear any of the King's people, it is a Rout, whether they put their intended purpose in execution, or not: But if a Mayor and Aldermen, or Bailiff and Burgesses, or the fellows of any society do assemble in their common quarrel, and make a Riot, Rout, or Unlawful assembly, this shall be punished in their own private natural persons, and not in the body politic, for it was their private persons that assembled to offend the Law, and not the body politic. If a man go to the Sessions, Market, Fair, Rout by wearing of Armour. or other assembly of company, with his servants in Harness, though he hath no intent to fight, or to commit any Riot, yet this is a Rout by the manner of his coming, and is contrary to the Statute of 2. St. 2. Ed. 3. 3 Edw. 3. which hath ordained, That no man shall bring any force in affray of the peace, nor shall go armed in fairs, markets, or elsewhere, upon pain of imprisonment, and forfeiture of his Armour. Lawful assemblies of three persons, or more. 6 An Assembly of three persons or more, which is not to the terror of the people, nor to do some Act with force and violence against the peace, is not unlawful nor prohibited by any of the Statutes before mentioned. The watch in London upon Midsummer night is lawful, and so be such like in other Cities and Towns. Assemblies be lawful that be used upon May day, to fetch in May boughs, or flowers; and so be assemblies at Church-Ales, Whitsun, or Midsummer-Ales. Assemblies at the fetching home, setting up, or dancing about a Maypole, and assemblies at the baiting of a Bull, or Bear, or at the mowing or making of Dole or Revel mead, and assemblies of Minstrels and their fellows at certain places, and times of the year, allowed by old and ancient customs are also lawful: And Assemblies to play at Cards, Tables, Bowls, Clash, Bucklers, Wasters, half Sword, Tennis, Quoits, Cailes, or such other games be likewise by the common law tolerable (though some of the same games be prohibited upon some penalties by Statute to be used by some persons) and assemblies to run at Quintall, Sand bag, Base, Football, Stooleball, Handball, St. 33. H. 8. 9 or such like disports be also lawful: For these assemblies be not made with the intent to break or disturb the Peace, or to offer violence, force, or hurt to the person of any; but either to try Activity, or to increase society, amity, and neighbourly friendship. And if in any of the said assemblies, any of the parties the same, shall make a fray with a stranger, that is no Riot, neither doth it make the residue of the same company Riotors, who came thither for their disports, and not to any evil or unlawful intent. But if any of the same company shall fall out with a stranger, or some others of their own associates, and then some of them do take one part, and some of them another, An Assembly lawfully begun doth end riotously, whereby a Riot is committed: then so many of both sides as shall take sides, and be parties to that quarrel, shall be adjudged Riotors, but not the residue; for the Riot did not take his beginning at the first meeting, when they did all assemble for any of the sports before mentioned, but when the taking of part with those that did quarrel began. And therefore they only, who made themselves parties to that quarrel, shall be punished as Riotors, and none other. And so it is, if a jury be charged to try an Issue, if some of them fall out, and fight; this is no Riot in the residue assembling to a lawful end. 22. H. 6. 37 3. H. 7. 1. & 10. St. 17. R. 2. 8. St. 1. M. 12. 8 St. 3. H. 4. 17 Sta. 8. H. 6. 9 St. 3. Ed. 1. 9 And it is lawful for the Sheriff, Undersheriff, or Bailiff to take the power of the County, what number they shall think good, to execute the King's process: And so may any justice or justices of Peace, and the Sheriff, and the Undersheriff, take any power of the County to repress Riots, Routs, unlawful or Rebellious Assemblies: Or to remove such persons, as by Inquisition are found to have made forcible Entries into other men's possessions, or to detain them with force. And so may a justice of Peace, Sheriff or Constable take of the County any number that they will to pursue and apprehend Traitors, Murderers, Robbers, or other felons, or such as do break, or go about to break, or disturb the peace: For though in the cases last specified there be three or above assembled together, yet it is to execute the justice of the Law, and by that means to preserve peace. And it is a lawful assembly which is gathered together to run at Tilt, justs, or Barriers by the King's commandment: for the cause, beginning, and end thereof, do tend to obedience, the laudable exercise of true valour, and manhood, and to the encouragement and enabling of the actors therein to defend the Realm, and the peace thereof. 7 And though by the before specified Statute of Anno 34. Edw. 3. it is ordained, that justices of Peace shall restrain offenders, Riotors, and all other Barrators, and pursue, take, chasten, imprison, and punish them according to their trespasses and offences, to the intent that the people be not by such Riotors troubled, or endamaged, nor the peace broken, nor any passengers by the way disturbed, or put in peril: Yet by force of that Statute the justices of Peace could not require the help of the Sheriff, nor command the power of the county to help to assist them, St. 17. R. 2. 8. to repress the said Riotors. Whereupon by the before mentioned Statute of Anno 17. R. 2. it is defended, That none shall make assemblies, riot, or rout against the peace in any wise. And if any such assembly be begun, as soon as the Sheriffs, Disturbing of rioters. and other the King's ministers may have knowledge thereof, they with the power of the county, where such case shall happen, shall disturb such malice with all their power, and shall apprehend all such offenders, and put them in prison, until due execution of the law be made of them: and all Lords and other liege people of the Realm shall attend with their whole strength and power, the Sheriffs and ministers aforesaid. 8 But because the said Statute of 17. R. 2. or any other Statute or Law before that time made, doth not enable the justices of Peace, and Sheriff to record that, which they shall find done in their presence against the law, nor to make enquiry thereof, nor to hear and determine the same, nor to make certificate thereof to the King and his counsel, if the truth cannot be found: Nor doth assign what Process shall be awarded against the offenders, nor doth inflict any penalty upon the justices which shall not execute the law: Therefore by the before rehearsed Statute made Anno 13. St. 13. H. 4. 7 H. 4. it was established, that if any riot, assembly, or rout of people against the law be made in any part of the Realm, the justices of peace, three, The justices and sheriffs shall arrest Riotors. or two of them at the least, and the Sheriff or Undersheriff of the shire, where such riot, assembly, or rout shall be made, shall come with the power of the county, if need be to arrest them. And the justices, Sheriff, or Undersheriff, shall have power to record that which they shall find done in their presence against the law: And the same trespassors and offenders shall be convict by the Record of the same justices, Sheriff, or Undersheriff, in manner and form as is contained in the Statute of forcible entries. The form of Recording of which riot is this; Buck. Recording of a riot. viz. Memorandum quod primo die Martij anno regni regis Domini nostri jacobi dei gratur etc. tertio, Nos Franciscus Goodwin miles, & Alexander Hamden miles justiciarij domini Regis nunc ad pacem in comitatu praedicto conseruandam, necnon etc. assignati, & Richardus Ingolsby miles adtunc vicecomes eiusdem comitatus, ad querimoniam A. B. de Wadsdon in come praedicto yeoman in proprijs personis nostris accessimus ad domum mansionalem ipsius A.B. apud Wadsdon praedictur; & ibidem invenimus quosdam C. D. E.F.G. & alios malefactores, & pacis dicti domini Regis perturbatores ignotos, ad numerum octo personarum modo guerrino arraiatos, viz. cum gladijs, baculis, arcubus, & sagittis riotosè, & illegitimè aggregatos, & eandem domum sic custodientur, in magnam perturbationem pacis dicti domini Regis & populi sui terrorem, & contra formam statuti in Parliamento domini Henrici nuper Regis Angliae quarti, Anno Regni sui decimo tertio tento, editi. Et ideo nos praefati F. G. & A.H. corpora predictorum C.D.E.F.G. ad tunc arrestavimus, ac proxime jail dicti domini Regis in Com' pndicto duci fecimus ꝑ recordum nostrum de transgressione praedicta convictos in praesentia nostra, ibidem moraturos, quousque finem dicto domino Regi ꝓ transgressione sua praedicta fecerunt. In cuius rei testimonium huic recordo nostro sigilla nostra apposuimus. Datur apud Wadsdon praedict' die & Anno praedictis. 9 By the same Statute of 13. H. 4. it is further ordained, St. 13. H. 4. 7 That if it happen such Trespassors and offenders be departed before the coming of such justices, Inquirie of a Riot by the justices, etc. and Sheriff, or undersheriff, the same justices, three, or two of them shall diligently inquire within a month after such Riot, assembly, or Rout of people so made, and the same shall hear and determine according to the laws of this Realm: And because the said justices of peace, Sheriff etc. are by this branch of the Statute, to make inquiry of the Riot, which must be done by a jury returned by the Sheriff, the form of the said justices precept to the Sheriff to return the said jury is this, Buck. viz. Henricus Longuile miles, & Willihelmus Anderous miles justiciarij Domini Regis nunc ad pacem in Comitatu praedicto conseruandam, A precept to the Sheriff to return a jury to inquire of a Riot. nec non ad diversas felonias, transgressiones, et alia malefacta in eodem Comitatu audiendum & terminandum assignati, vicecomiti Comitur praedicti salutem. Ex part dicti Domini Regis tibi praecipimus firmitèr iniungentes, quod non omittas ꝓpter aliquam libertatem in Balliva tua, quin eam ingrediaris, & venire facias coram nobis apud Cauluerton in Comitatu praedicto 10. die huius mensis januarij 24. ꝓbos & legales homines Comitatur praedicti, quorum quilibet habeat terras & tenementa infra dictum Comitatum liberi tenementi per chartam ad valorem viginti solidorum, aut per Copiam Rotulorum curie ad valorem 26. s. 8. d. aut de utroque ultra omnes reprisas; ad inquirendum pro dicto dno Rege de quodam Riotto apud C. in comitatu pndicto nuper commisso, ut dicitur, & qd'suꝑ quemlibet Iuratorumpredictorum tunc returns in exitibus xx. s. Et hoc nullatenus omittas sub pena xx.li. quam noveris te incursurum, si in executione pmmissorum tepidus seu remissus fueris. Et habeas ibi hoc praeceptum, Testibus nobis pfatis H.L. & W. A. quarto die Martij, Ann regni dni nostr' Regis jacobi dei gratia etc. tertio. And when the Sheriff hath returned his precept at a day and place, than two justices of peace at the least (without the Sheriff, who is not to sit upon the Inquisition) are to make inquiry by the same jury returned, the form of which Inquisition is this. Buck. Inquisitio pro Domino Rege capta apud Wynslowe in Comitatu praedicto, primo die Octobris Anno Regni dicti domini nostri Regis jacobi etc. quinto, coram Roberto Dormer milite, & Anthonio Tiringham milite, adtunc justiciarijs dicti Domini Regis ad pacem in Comitatu praedicto conseruandam, necnon ad diversas felonias etc. assignatis super sacramentum A. B. C. D. E. F. G. etc. The form of an inquisition of a Riot. Qui dicunt super sacramentum suum quod H. I. K. L. M. N. de Addington in Comitatu praedicto husbandmen etc. simul cum alijs malefactoribus, & pacis dicti Domini Regis perturbatoribus ignotis, ad numerum decem personarum vi & armis, modo guerrino arraiati, viz. cum gladijs, Bacculis, Arcubus & Sagittis, vicesimo die Septembris, Anno quinto supradicto, inter horas septimam & undecimam ante meridiem eiusdem diei, domum mansionalem cuiusdam S. T. de Wynslowe praedictur freg●runt & intraverunt & in ipsum S. T. adtunc & ibidem insultum fecerunt, & ipsum verberaverunt, vulneraverunt, & maletractaverunt, ita qd' de vita cius desperabatur, in magnam perturbationem pacis dicti domini Regis, & populi sui terrorem, ac contra formam statuti de Riotis, Routis, & illicitis congregationibus, in parliamento domini Henrici nuper Regis Angliae quarti, Anno regni sui decimo tertio, aediti. St. 13. H. 4. 7 10 By the foresaid Statute of 13. H. 4. it is moreover established, that if the truth cannot be found in manner aforesaid, then within a month next after, the same justices, three, or two of them, and the said Sheriff, Certifying a Riot. or undersheriff; shall certify before the King and his Council, of the whole fact, and the circumstances thereof: which certificate shall be of the same force, that a presentment by twelve men is: Upon which certificate, the said trespassors and offenders shall be put to answer, and they which shall be found guilty, shall be punished by the discretion of the King and his Council. And if the same trespassors and offenders do traverse the matter so certified, Traverse of a Certificate. the same certificate and traverse shall be sent into the King's Bench; there to be tried and determined according to the order of the Law. St. 13. H. 4. 7 11 The same Statute of 13. H. 4. hath also provided, that if the said trespassors and offenders do not come before the King, and his Council, Process against offenders. or into the King's Bench, at the first precept; then an other precept shall be delivered to the Sheriff of the Shire to take the said trespassors and offenders, if they may be found, and to bring them at a certain day before the King and his Council, or into the King's Bench: And if they cannot be found, the Sheriff or undersheriff shall make proclamation in his full County next ensuing the said second precept, that they shall appear before the King and his Council, or in the King's Bench; (or in the Chancery in the time of vacation) within three weeks then next following. And if the offenders do not appear, as is aforesaid, and the proclamation be made, and returned, they shall be attainted and convicted of the Riot, Assembly, and Rout aforesaid. St. 13. H. 4. 7 12 By the said Statute of 13. H. 4. it was lastly enacted, The forfeiture of the justices, which do not inquire of Riots. that the justices of peace, which dwell nearest in every County, where such Riot of people shall be, together with the Sheriff, or undersheriff of the same Coontie; And also the justices of assize, for the time that they shall be in their Sessions (in case any such Riot, assembly, or Rout be made in their presence) shall do execution of this Statute, every one upon pain of C. li. to be paid to the King, as often as they shall be found in default of execution of the same Statute. 13 Because it was not provided by the foresaid Statute of 13. H. 4. A commission to inquire of the justices, etc. default. that the party grieved should have any other remedy, if default should be in the said justices, Sheriff, or undersheriff, where such Riot, assembly, or rout should be made, nor at whose costs the same riot should be repressed, neither was it limited what punishment the parties attainted of such Riots should suffer: St. 2. H. 5. 8. Therefore by an other Statute made Anno 2. H. 5. it was established, That if default be found in the said two justices of peace, or justices of Assize, and the Sheriff, or undersheriff of the County where such Riot, assembly, or rout shall be made, touching the execution that they ought to make by virtue of the said statute of 13. H. 4. and whereof the said Statute maketh mention: Then at the instance of the party grieved, the king's commission shall be awarded under the great Seal, to inquire aswell of the truth of the case, and of the original matter, for the party complainant, as of the default or defaults of the said justices, Sheriff, or undersheriff in this behalf supposed, to be directed to sufficient and indifferent persons, at the nomination, and by the advise of the Chancellor of England. And the said Commissioners incontinently shall send into the Chancery the Inquests and matters before them in this behalf taken and found. Upon the Commission the coronors shall return the jury. 14 The Coroners of the same County for the time being, St. 2. H. 5. 8. in which County such Riot, Assembly, or Rout shall be made, shall make the panel upon the said commission returnable for the time that the Sheriff so supposed in default shall remain in his office: which Coroners shall return no persons, but only such which have lands etc. to the value of x. l. by the year at the least. And also the same coroners shall return upon every of the said persons impanelled at the first day when issues be to be lost xx. What issues shallbe returned upon the jurors. s. at the least; at the second day xl. s. at the least; & at the third day C. s. at the least; at every day after the double at the least; which issues so returned because of non-appearance of such persons empaneled, shall be forfeit to the King and leviable to his use. And if default be found in the said coronors touching the return of such persons, to be empaneled, or touching the return of such issues as afore is said, every of them shall pay to the Kings use forty pounds. Where the sheriff shall return the jury and not the coronors. 15 And if the Sheriff so reputed in default be discharged of his office, St. 2. H. 5. 8. at the time that such commission shall go out of the Chancery, than the new Sheriff of the same County, his successor mediate or immediate, and not the coronors, shall make the panel upon this commission returnable in manner and form as the said coronors should do in time when the Sheriff so reputed in default stood in his office. And the same Sheriff shall incur like pain of xl. li. to the King, if any default in him be found, touching the return of other persons by him impanelled, which have not lands, tenements or rents to the value of x. li. by the year, or of returning such issues as the said coronors be above charged to return, as the said coronors be to lose to the King in this behalf. A writ directed to inquire of a Riot. 16 The Chancellor of England, as soon as he may have knowledge, St. 2. H. 5. 8. of such Riot, assembly, or Rout, shall cause to be sent the Kings writ to the justices of peace, and to the Sheriff or undersheriff of the County, where they be so made, that they shall put the foresaid Statute of 13. H. 4. in execution upon the pain contained in the same. And though such writ come not to the said justices, Sheriff, or undersheriff, they shall not be excused of the pain (of 100 pounds) aforesaid, if they make not execution of the said Statute. Riots shallbe inquired of at the King's costs. 17 The justices and other officers aforesaid shall do their offices at the King's costs, in going, tarrying, St. 2. H. 5. 8. and returning in doing their said offices, by payment thereof to be made by the Sheriff of the same County for the time being, by Indentures between him and the said justices, and other officers aforesaid, to be made of the payment aforesaid, whereof the said Sheriff upon his account in the Exchequer shall have due allowance. St. 2. H. 5. 8. 18 Such Riotors attainted of great and heinous Riots, The punishment of Riotors. shall have one whole years imprisonment at the least without being let out of prison, by bail, mainprize, or in any other manner during the year aforesaid: and the Riotors attainted of petit Riots shall have imprisonment as the King and his Council shall think good. St. 2. H. 5. 8. 19 The King's liege people being able to travail in the County where such Riots, assemblies, or routs shall be made, shallbe assistant to the justices, Each man shall help to repress Riots. commissioners, Sheriff or undersheriff of the same County, when they shallbe reasonably required, to ride with the said justices, Sheriff, or undersheriff, in aid to resist such Riots, Routs, and assemblies, upon pain of imprisonment, and to make fine and ransom to the King. St. 2. H. 5. 8. 20 The bailiffs of franchises bailiffs of Franchises. shall impannell sufficient people as before, upon pain to lose xl. li. to the King, in case that such sufficient persons may be found within the said franchises. Corporat towns having justices. And like ordinances and pains shall hold place and take effect in Cities, Boroughs, & other places, and towns enfranchised, which have justices of peace within them. 21 Forasmuch as in the before rehearsed Statute of 13. H. 4. it is not expressed of what sufficiency the jurors impanelled by the Sheriff to inquire of Riots should be, Nor what issues they should lose, if they appear not, Nor any mention is made of any punishment the maintenors and embraceors of the jurors that so shall be impanelled, should have for their misdemeanour, A jury to inquire of Riots if any should be: St. 19 H. 7. 13. Therefore by a Statute made Ann̄ 19 H. 7. it was enacted, that if any Riot, Rout, or unlawful assembly be committed within this realm, the Sheriff having a precept directed to him shall return xxiv. persons dwelling within the Shire where such Riot, etc. shall be so committed whereof every of them shall have lands and Tenements within the same shire to the yearly value of xx. s. of Charter land or freehold, or xxuj. s. viii. d. of copyhold, or of both, above all charges, for to inquire of the said Riot, Rout, or unlawful assembly. And he shall return upon every person so by him impanelled in issues at the first day xx. s. at the second xl. s. (if that they appear not and be sworn to inquire of the premises at the first day.) And if default be found in the Sheriff, or undersheriff, for returning of other persons, being not of the same sufficiency, or for not returning issues in form aforesaid, than the said Sheriff shall forfeit to the King for either twenty pounds. St. 19 H. 7. 13. 22 If the said Riot, Rout, or unlawful assembly be not found by the said jury, by reason of any maintenance or embracery of the jurors, Maintenance where by a Riot is not found. than the same justices, and the Sheriff, or undersheriff (beside such certificate that they be bound to make according to the foresaid Statute of 13. H. 4.) shall in the same certificate certify the names of the mainteinors and embraceors in that behalf, if any be, with their misdemeanours that they know, upon pain of every one of the said justices and Sheriff or undersheriff to forfeit xx. li. if they have no reasonable excuse for not certifying of the same: which certificate so made shall be of like force and effect in the law, as if the matter contained in the same were duly found by the verdict of xii. men. And every person duly proved to be a mainteinor or embraceor of the same, shall forfeit to the King xx. l. and shall be committed toward, there to remain by the discretion of the justices. What one justice of peace may do alone in a Riot. 23 One justice of peace alone can neither make inquiry of a Riot, Rout, 7. Ed. 4. 18. or unlawful assembly, when it is done, nor assess any fine, nor award any process for it, nor otherwise meddle with it in the nature of a Riot, or Rout, but only as a trespass against the peace, or upon the statute of Northampton, or the Statut of 34. Ed. 3. or upon the Stat. of forcible entries; for the words of the foresaid Statute of 13. H. 4. be: That if such trespassors or offenders be departed before the coming of the said justices, Sheriff, or etc. the same justices, three or two of them shall diligently inquire etc. So that there must be two of them at the least to make such inquiry. 14. H. 7. 9 But if one justice of peace do hear of any Riot, Rout, or unlawful assembly, he alone with his servants may go to the place, where the assembly is reported to be made, and if he find any riotously gathered together, he may arrest them to find sureties of their good behaviour according to the Statute of 34. Ed. 3. Kel. fo. 41. & he may take their weapons from them, and retain them until their hot blood be cooled. And if they refuse to find sureties of their good behaviour, he may commit them to prison. But this must be done presently upon the act doing, for if there be any mean time, he hath then no authority to commit them to prison. And if he come to the place, whither he doth understand, that some persons will repair to commit some Riot, Rout, or violent act against the peace, and the same persons be not yet come thither, he may leave his servants there, to restrain them from committing their intended Riots, or other offences, or else to arrest them to find sureties of their good behaviour, if they do offer to commit any Riot, or to break the peacce. And so may he also do, if he shall be sick and hear of any Riot etc. intended to be done; he may send his servants to repress it, or to bring the offenders before him, or some other justice of peace, to find sureties to keep the peace, or else to commit them to the jail. So that one justice of peace alone may by the warrant of the said Statute of 34. Ed. 3. do much in prevention of a Riot etc. before it be done, & for the staying of it, whilst it is in doing, but nothing to punish it as a Riot, when it is done: for that statute of 34. Ed. 3. was made for the common profit of the Realm, speedily to interrupt, and prevent present mischiefs, & to disperse malefactors, Barrators, and other Riotors in their very first meeting and encounter, and so far as may be to part and cut off the quarrel, before it grow to any head or extremity, which peradventure would not be easily pacified, if one justice should do nothing, until some other of his fellows came to assist him therein. And a justice of peace may by word only, without warrant in writing, command his own servants, or any of them, to apprehend those, that are about to commit a Riot in his presence: And they may justify the taking of them, though those Riotors be gone or fled away out of the presence of the same justice, before his said servants can lay hold on them. 24 Although this Statute of 13. H. 4. doth not make that mention which the Statute of 8. H. 6. of Forcible entries doth, touching complaint to be made to the justices of peace, of a Riot, Rout, or unlawful assembly, but doth hind the next justices of peace to do execution of this Statute, every one upon pain of C.li yet the Sages of the Realm, and the wisdom of the interpreters of the law, The justices must have notice of the Riot. have thought it reason, 4. El. Dy. 210. that notice should be given unto the said next justices thereof, before they should incur the said penalty of C.li unless it be some great, notorious, and very perilous Riot, which by common intendment, every person in those parts may take knowledge of; for as the said Statute of 13. H. 4. doth relate to the Statute of 8. H. 6. touching the conviction of offenders by the record of the justices: So it is like, that the meaning of the makers thereof was, it should do, in giving notice, or making of complaint of the wrong received. 25 If the justices do assemble themselves, the Sheriff, The party's agreement, no discharge of the inquisition. and the jury to make inquiry of a Riot within a month, according to the Statute, and after at the party's request, they do not inquire of it, but do dismiss the jury, for that the parties have agreed between themselves; Yet the justices shall pay a fine to the King, although none do give evidence for the King upon that Riot: for they ought to take and charge an inquest, and to make inquiry of that Riot, whereof they were informed, or of all Riots, seeing, it may be, that the jurors themselves have knowledge of the Riot. And moreover they must make proclamation, if any will inform the King's justices of any Riots, Routs etc. And the said Statute of 13. H. 4. which giveth authority to the justices and Sheriff &c. to inquire of the Riot, and to hear and determine it, according to the law, was ordained to punish Riotors for breaking of the King's peace, and thereby to make them an example to others, and also to entitle the King to a fine. And therefore the law will not permit, that the satisfaction of the parties grieved should deprive the King of his fine, or ease the offenders of their due and deserved punishment, and also yield encouragement to others, upon hope of agreement, to put in practise the like Riots or other outrages. St. 13. H. 4. 7 26 And whereas the said Statute of 13. H. 4. hath ordained, that if any Riot or etc. against the law shall be made, the justices of peace, the Sheriff or undersheriff shall come with the power of the County, if need be, to arrest them: That power of the County is expressed before by the Statute of 17. What power of the County the justices shall use to repress Riots. R. 2. viz. All Lords and other liege people of the Realm, as Knights, Esquires, gentlemen, yeomen, labourers, servants, apprentices, villains, and all others of the age of 15. years or above (which be not of the Clergy, decrepit, or women) whereof the said justices and Sheriff may take so many to assist them as they shall think good to arrest the offenders, and to carry them to the jail. And if the justices of peace be informed of a Riot committed at such a place, and they go with the power of the County to suppress it, and find no Riot there, yet they are not to be blamed or fined for the levying of the power of the County. St. 13. H. 4. 7 27 By the said Statute of 13. H. 4. the justices of peace, The justices record of a Riot. Sheriff or undersheriff, have power to record that which they shall find done in their presence against the law, and the trespassors and offenders shall be convict by the Record of the same justices; which recording must either be grounded upon a thing done in their own presence, or else by inquiry upon the oath of other men: And therefore if two justices of peace assisted with the Sheriff or under Sheriff, do see a Riot, they may command the Riotors to be arrested, & then record the Riot, without other inquiry. But it is otherwise, if they do not see it, for than they must first inquire of it by a jury, and after the same being found by inquisition, they must make a record thereof, which record that the said justices do make, must be in writing, and is to remain with one of them. And they and none other of the justices ought to commit the Riotors to prison, and to assess their fines, and to cause the same to be estreated into the Exchequer. And if the justices do record a Riot of their own fight, the parties charged therewith shall never be allowed to traverse it, No traverse to the record of a riot made of the justices own sight. though indeed there was never any such Riot: for their sight of the Riot being judges of record, maketh that record in the judgement of the law, as strong and effectual, as if the supposed offenders had confessed the Riot before them; and (touching the restraining of traverse) more effectual, then if the Riot had been found by a jury upon the evidence of others. And if the justices of peace do see the Riot committed, they may record the riot, though the Riotors do escape for that the fact is done in their presence, which is the ground of their record. And if the same Riotors do escape from the justices at that time, they cannot apprehend them at an other time; for the apprehension and punishment of them must be whilst the Riot is committing, or presently after, and as it were, whilst the blood is hot. Neither in that case, if the Riotors do escape, the justices can make any process upon their record; neither ought it to be kept amongst the records of the peace, but must be sent into the King's Bench, that process may there be made upon it: And in that case, 36. H. 6. 25. the offenders are not to be admitted to their traverse, but are of necessity to make fine for it. If two justices of peace or more, and the Sheriff or underrshirife, do meet at a place appointed about the King's service, the affairs of the country, or their own private business, and any others to the number of three or above will make an assault in Riotous manner upon them, or any of them, or upon any other in their presence, The credit of the justices record of a Riot. they may arrest the offenders, commit them to prison, and record the Riot, aswell as if they had come of purpose to see and arrest Riotors; but if they which do begin a Riot do fly into an other County before they do commit the Riot then the justices must not meddle with them. And this recording of a Riot by the justices of peace, the Sheriff, or undersheriff is of that credit in the judgement of the Law; That if a man be bound by recognisance to keep the peace, and after such a record of being party to the committing of a Riot is entered against him, in a Scire facias awarded against him, upon his recognisance, he shall not be allowed either to justify the fact, nor plead not guilty thereunto. 28 Whereas the said Statute of 13. H. 4. hath ordained, Stt. 3. H. 4. 7 that if the truth cannot be found, then within a month next after, the same justices, three, or two of them shall certify, before the King and his Council, the whole fact, and the circumstances thereof, which words (viz. the same) have relation to the justices of the Shire; So that if two justices of the Shire, and the Sheriff, or etc. go to see the Riot, any other two justices may make inquiry of it, and then they together, or the first two, or the last two may make certificate thereof, Certificate of a Riot. within a month after that inquisition taken. But if the inquiry be made within a month after the Riot, or &c. committed, and the certificate not made within a month after that, then is not the certificate good, nor according to the said Statute; And yet if the justices do make an inquiry within a month after the Riot committed, and then do give day to the jury to deliver their verdict after the month expired, that is a good inquisition and according to the Statut; for by that day given the jury may inquire further, and receive more evidence to inform them of the truth of the matter. If an inquest do find that a Riot was committed by x. persons and the justices do certify, that it was committed by xx. persons, than the certificate, and not the inquisition shall be taken, for by that certificate of the justices it appeareth, that the truth was not found by the inquisition. And so it is, if the inquisition be of x. persons, and the certificate be of x. persons in harness. And likewise if the indictment be of a riotous assault only, and the certificate be of a riotous assault, battery, & maiheming: for though in the cases aforesaid the inquest have found a truth, yet they have not found the whole truth, neither that which is most for the King's advantage, nor fully performed the meaning of the said statute: but if the indictment and the justices certificate do vary in the day of the committing of the riot, than the indictment shall be preferred before the certificate; for the day doth alter nothing to qualify or aggravat the offence. And yet seeing the said certificate is but only in the nature of a declaration, to cause the parties accused to mak● answer thereunto, the same certificate ought to comprehend the certain year, and day, though not the addition of the parties, being not within the words of the statute of Additions made Ann 1. H. 5. 5. St. 13. H. 4. 7. 29 And though the said Statute of 13. H. 4. The process against rioters. doth only make mention of a Capias, yet it seemeth by the words of the same, that first there aught to be awarded a Venire facias against the offenders, and if they do not appear, than a Capias: for the words of the Statute be, if they do not come before the King and his council, or into the King's Bench at the first precept, than another precept shall be delivered to the Sheriff to take the said offenders etc. And this process must be returned before the King's council, or in the King's Bench: but if there be awarded against the offenders, a Subpena, or a privy seal, it shall be void. St. 13. H. 4. 7 30 Notwithstanding the said Statute of 13. H. 4. The penalty of C. l. for not executing this Statute. hath inflicted a penalty of C. l. upon the next justices of the county where such riot shallbe committed, if the execution of that Statute be not done: yet if other justices of the same county do perform that office, than the next justices shall be excused, and the same penalty shall be saved: for the Statute doth wholly or chief respect, that the offenders shallbe arrested or disturbed, their offences inquired of, recorded, and punished, and by that means the peace preserved: for all the justices of peace within the commission, how far off soever they dwell (so that they dwell within the said county) if they have notice of such a riot, rout, or unlawful assembly, aught to inquire of it, to record it, and to suppress it, or otherwise they may be fined by the Lords in the Star chamber, though the penalty of one C. l. shallbe inflicted only upon the two next justices, for that they are intended most likely and soon to have knowledge of it. But if the Sheriff or Undersheriff should not come to the justices, being sent for to assist the same justices, and to further the repressing of that riot, and the performance of that service, than all the said justices dwelling near or remote shallbe excused of the same penalty of C. l. or any other, for the said statute doth give him equal authority, and as it were join him in commission in the copulative with them. St. 13. H 4. 7. 31 It appeareth by the said stat. of 13. H. 4. Traverse to an Indictment of Riot. that if the offenders & trespassors do traverse the matter certified by the justices of peace, to the King & his council, the same certificate and traverse shall be sent into the K. Bench, and there be tried & determined according to the law. And in like sort, if the trespassors & offenders do traverse the matter found by Inquisition before the Iu. of peace in the county, the same Inquisition shallbe sent to the justices of peace at the next Quarter Sessions of the same county, city, borough, or town corporat, having justices of Peace within themselves, & there the traverse shallbe tried and determined according to the Law: the form of which traverse taken in a town corporat is this; Alias, scilicet ad Sessionem pacis tentam apud Buckingham in comitatu praedicto die Lune proximo post festum Sancte Trinitatur, Anno regni dni nostri Regis jacobi dei gratur Angliae etc. secundo, coram johann Nichols generoso Ballivo Burgi & parochiae de Buckingham praedicta, & Francisco Fortescue milite, Thoma Denton milite, Richardo Ingolsbie milite, Willihelmo andrew's milite, Roberto johnson milite, Paulo Risley armigero, A traverse to an Indictment of riot. & Simone Lambard generoso, & alijs socijs suis justiciarijs dicti domini Regis ad pacem in dicto Burgo & parochia conseruandam, necnon ad diversas felonias, transgressiones, & alia malefacta in eisdem Burgo & parochia perpetrata, audienda, & terminanda, assignatis, per sacram duodecem juratorum extitit presentatum, Quod A.B.C.D.E.F. de Galcot, cum diversis alijs malefactoribus & pacis dicti Domini Regis perturbatoribus modo guerrino arraiati, uniti, & assemblati, vicesimo die Maij, hora quarta post meridiem eiusdem diei, Anno eiusdem domini Regis nunc secundo, vi & armis, viz. baculis, gladijs, pugionibus, falcastris, & alijs armis tam invasivis, quam defensivis apud Prebend-end in Buckingham praedicta clausum cuiusdam L. M. vocatum Bone-hill close, illicitè, riotosè, & routosé fregerunt, & intraverunt, & decem carractatas seni ad valenc' quatuor librarum de bonis & catallis dicti L. M. adtunc & ibidem injust & illicit ceperunt, & asportaverunt, contra pacem dicti domini Regis, & contra formam statuti inde editi & provisi. Per quod praeceptum fuit johanni Crook subballivo, quod non omitteret propter aliquam libertatem etc. quin venire faceret eosdem A.B.C.D.E.F. ad respondendum etc. Posteaque scilicet die Lune proximo post festum sancti Michaelis Archang ' anno regni domini Regis nostri jacobi secundo coram praefatis justiciarijs venerunt pndicti A.B.C.D.E.F. in proprijs personis suis, & habito auditu Indictamenti pndicti, seperatim dicunt, quod ipsi non sunt inde culpabiles. Et de hoc ponunt se super patriam: Et H. I. qui pro domino Rege in hac part sequitur similiter. Ideo veniunt inde juratur coram justiciarijs dicti dni Regis ad pacem in Burgo & parochia pnd conseruandam assignatis etc. ad Sessionem pacis apud Buck. pnd die Lune proximo post Epiphaniam dni tunc proximo futuro tenendam. Et qui etc. Ad recog. etc. Quia tam etc. Idem dies datus est tam praefato H. I. qui sequitur ꝓ Dno Rege, quam pfatur A.B.C.D.E.F. Ad quas quidem Sessiones pacis tentas apud Buck. pnd in come pnd dicto die Lune proximo post festum Epiphaniae domini, Anno regni dicti Regis dni nostri jacobi tertio, coram dicto Ballivo & dictis F.F.T.D.R.I. & socijs suis justiciarijs dicti Dni Regis ad pacem in dict' Burgo & parochia conseruandam, necnon ad diversas felonias, transgressiones, & alia malefacta in eodem Burgo & parochia perpetrata, audienda, & terminanda assignatis, venerunt tam pfatus H.I. qui pro dno Rege in hac part sequitur, quam pfatur A.B.C.D.E.F. in proprijs personis suis: Et juratores ꝑ subballiutim Burgi & parochie pnd ad hoc impannellatur & exacti; viz. E.F. Mercer. O.P. Draper, etc. similiter venerunt, qui ad veritatur de pmmissis dicendam triati & iurati dicunt super sacrum suum: quod pnd A.B.C.D.E.F. culpabiles sunt, & eorum quilibet culpabilis est de transgressione, contemptu, & riotto pnd in Indictamento pnd superius specificatis, modo & forma prout superius versus eos supponitur. Ideo concessum est ꝑ cur', qd pnd A.B.C.D.E.F. capiantur ad satisfaciendum dicto domino Regi de finibus suis occasione transgressionis, contemptus, & riotti praedicti. Qui quidem A. B. C. D. E. F. adtunc & ibid pnsentes in cur' petierunt se ad finem cum dict' dno Rege occasione pnd admitti. Et inde pon̄ se seperatur in miserecordia dni Regis. Et assessatur finis eiusd. A.B. per Iusticiar' pnd ad 5. li. Et assessatur finis eiusdem C.D. ad 3. li. etc. bone & legalis monetur Angliae ad opus & usum dicti dni Regis. 32 Though the laws & statutes before rehearsed, or mentioned did take sufficient order for the enquiring of, repressing, & punishing of such as did commit riots, routs, or unlawful assemblies, by iij. iiij.v. or some small number of persons, and then were apprehended, or dispersed by the justices of Peace, the sheriff, or undersherife, with the help of the country, when need required: Yet there was no sufficient law devised to suppress, and punish such, as did assemble in great numbers, routs, and tumults, and would in contempt of the law, and in rebellious manner, put in practice, unlawful, forcible, and violent acts, and being by authority of the same law, in calm manner required to the contrary, would yet stand at the staves end with the peace of the realm, and the justice of the law, and as it were in despite of all government and governors proceed in their fury: Therefore to continue peace and tranquility in the common weal, and by a more sharp corrosive to bridle or punish so great maladies, St. 1. M. 12. by a statute made Anno 1. M. it was enacted, Twelve or above assembled to change laws. That if any persons to the number of xii. or above, being assembled together, shall intend, go about, practice, or put in ure by force of arms, unlawfully, and of their own authority, to alter, or change any laws made or established for religion by authority of Parliament, which stand in force, or any other laws or statutes of this realm, or any of them, the same number being commanded or required by the sheriff of the shire, or by any Iu. of peace of the same shire, or by the mayor, sheriff, I. of peace, or by the bailiffs of any city, borough, or town corporat, where such assemblies shallbe unlawfully had and made, by proclamation in the Queen's name, to retire, and repair to their own houses and habitations, or places from whence they came; and they or any of them, notwithstanding such Proclamation, shall remain, and make their abode and continue together by the space of one whole hour after such commandment or request made by Proclamation, or after that shall willingly in forcible and riotous manner attempt to do or put in ure any thing above specified: Then as well every such abode or continuing together, as every such act or offence, that after such commandment or request by Proclamation had or made, shallbe attempted to be done, practised, or put in ure by any of the persons being of the number aforesaid, shallbe judged felony in all and singular those persons, that so shall make their abode or continue together, or shall attempt or commit any act. And the offenders therein shallbe adjudged felons, and shall suffer only execution of death, as in case of felony. St. 1. M. 12. 33 If any persons to the said number of twelve, or above, shall intend, Practising to destroy parks, ponds, conduits. go about, practice, and put in ure, in manner and form aforesaid, to overthrow, cut, break, cast down, or dig up the pales, hedges, ditches, or other enclosure of any Parks or Park, or other grounds or ground enclosed, or the banks of any fishpond or pool, or any conduits for water, conduit heads, or conduit pipes, having course of water, to the intent, that the same or any of them from thenceforth should remain open, not enclosed, or void, Common or way. or unlawfully to have common or way in the same Parks or Park, or other grounds or ground enclosed, or in any of them, or to destroy in manner and form aforesaid the Deer in any Parks or Park, or any warrens or warren of Coneys, Destruction of dear, coneys, dove-houses, fish. Pulling down houses, burning stacks of corn, abating of rents. or any Dove-houses, or any fish in any fishpond or pool, or to pull or cut down any houses, barns, mills, or bays, or to burn any stacks of corn or grain, or to abate or diminish the rents or yearly value of any manors, lands, or tenements, or the price of any victual, corn, or grain, or any other thing usual for the sustenance of men, & being required or commanded by any I. of peace, or by the Sheriff of the county, or by the mayor, bailiff, or bailiffs, or other head officers of any city or town corporat, where such assembly shall be had by proclamation to be made in the queens name, to retire, & return in peaceable manner to their places and houses from whence they came, and they or any of them (notwithstanding such proclamation) shall remain or make their abode, or continue together by the space of one whole hour after such commandment or request made by proclamation; or after that shall in forcible manner do, or put in ure any of those things last before mentioned: Then aswell every such abode, or continuing together, as every such act, that after such commandment or request by proclamation, or request had or made, shall be done, practised, or put in ure, by any of the persons being above the number of twelve, shallbe adjudged felony, and the offenders therein shall be adjudged felons, and shall suffer only the execution of death, as in case of felony. Raising of unlawful assemblies by some acts or words. 34 If any person or persons unlawfully, and without authority, 1. M. 12. by ringing of any bell, or bells, sounding of any trumpet, drum, horn, or other instrument whatsoever, or by firing of any beacon, or by malicious speaking or uttering of any words, or making of any outcry, or by setting up, or casting of any bills or bill, or writing whatsoever, or by any other deed or act, shall raise or cause to be raised or assembled any persons to the number of twelve or above, to the intent, that the same persons should do, or put in ure, any of the things above mentioned; & that the persons to the number of twelve or above so raised and assembled after request or commandment had or given in form aforesaid, shall make their abode, or continue together, as is aforesaid, or unlawfully and in forcible manner perpetrate, do, commit, or put in ure any the acts or things abovesaid: Then all and singular persons, by whose speaking, deed, act, or any other the means above specified, any persons to the number of twelve or above shall be raised or assembled, for the doing, committing, or putting in ure of any the acts or things above mentioned, shallbe adjudged for his so speaking or doing a fellow, & shall suffer execution of death, as in case of felony. Relieving them which be assembled. 35 If any wife, or servant of any of the same persons, 1. M. 12. or any other person whatsoever, shall willingly and without compulsion, bring, send, deliver, or convey, any money, harness, artillery, weapon, meat, bread, drink, or other victual to any person or persons so being assembled as is aforesaid, during such time as he or they shall so be assembled, or be together, as is aforesaid: then every wife, servant, or other person, so bringing or conveying &c. any of the foresaid things to the same persons so being assembled together in forcible manner, or to any of them, and not departing to their houses or dwelling places, upon request or commandment made unto them as is aforesaid, shall be adjudged a fellow, & shall suffer execution of death, as in case of felony. Unlawful assemblies above two and under twelve. 36 If any persons above the number of 2. and under the number of 12. 1. M. 12. being assembled together, shall intend, go about, practice, or put in ure with force of arms unlawfully, & of their own authority, to murder, kill, or slay any of the king's subjects, or to overthrow, cut, break, or cast down, or dig up the pales, hedges, ditches, wall, or other closure of any parks or park, or other ground enclosed, or the banks of any fishpond or pool, to the intent that the same or any of them from thenceforth should remain open, not enclosed, or void, or to have common or way in the same parks or park, or other grounds or ground enclosed, or in any of them, or to destroy any parks or park, or fishpond, or pool, or any warrens or warren of coneys, or any dove-houses, or to pull, or cut down any house, barn, or mil, or to burn any stack of corn or grain, or to alter, defaulke, or abate the rents, or yearly value of any manors, lands, or tenements of any of the King's subjects, or the price of any victual, corn, or grain, or any other thing usual for the sustenance or apparel of men, and being required or commanded by any justice of peace, or the sheriff of the county, or by any mayor, bailiff, or bailiffs, or other head officer of any city or town corporat, where such assembly shall be had, by Proclamation to be made in the King's name, to retire or return to their habitations, places, or houses: and they so required by such proclamation shall not so do, but after that shall in forcible manner in form aforesaid, attempt to do or put in ure any of the things last above mentioned: then every of the same persons being above the number of two and under the number of twelve, shall suffer imprisonment of his or their bodies by the space of one whole year, without bail or mainprize. The remedy of the parties grieved. And also if any person or persons shall be damnified or hurt by the doing, committing, or putting in ure of any unlawful act or thing above mentioned, than all and singular persons so damnified and hurt shall recover and have damages with the costs of their suit sustained in that behalf trebled against the offenders therein. 1. M. 12. 37 If any persons above the number of two shall unlawfully & of their own authority assemble together, to the intent with force and arms to do, practice, Raising of power to suppress unlawful assemblies. or put in ure any of the things above mentioned: Then it shall be lawful to every justice of peace, & to every Sheriff in any county, being within the K. dominions, and to every mayor, bailiff, and other head officer of any city, or town corporat, for the time he shall be in office, or any other person or persons having the K. commission, or Letters from his highness, as well to raise and assemble the kings loving subjects in manner of war to be arrayed in such great number, as he or they then shall think meet or able, to the intent by violence of strength to suppress, apprehend, and take the said persons that shall be so unlawfully assembled. And if the said persons so unlawfully assembled, after such cammandement or request by proclamation made, shall continue together and not endeavour themselves to return towards their habitations, houses, or places from whence they came, in as short time as they may conveniently: Then it shall be lawful to every I. of peace, sheriff, and also every mayor, bailiff, and other head officer of any city or town corporat, & to every other person having authority as is aforesaid, after such commandment or request by proclamation made, and to such persons as shallbe assembled with any justice of peace, or sheriff, or with any mayor, bailiff, or other head officer of any city or town corporat, and with every other person having authority as is aforesaid, to suppress, apprehend, & take those persons so unlawfully assembled, which after such proclamation made, shall continue together, and not endeavour themselves to return towards their habitations etc. And if the said persons so unlawfully assembled together, or any of them shall fortune to be killed, slain, maihemed, or hurt, in, or about the suppressing or taking of them, than every such justice, Sheriff, Mayor, etc. and every other person having authority as is aforesaid, and all and singular persons by him or them assembled shallbe free, discharged, and unpunishable: as well against the king, as against all and every other person and persons, of, for, or concerning the kill, maiheming, or hurting of any person or persons so unlawfully assembled, that shall be killed, slain, maihemed, or hurt about or by occasion of taking or suppressing of them etc. 1. M. 12. 38 All and every Copieholder and Customary holder, being a yeoman, artificer, husbandman, A copieholder being required refuseth to serve. or labourer, & being of the age of xviij. years, or more, & under the age of lx. years, not sick, impotent, lame, maihemed, neither having any other just or reasonable excuse or cause to the contrary, and being required by the sheriff, justice, or justices of peace, or other having authority by this act, or by commission, or letters etc. they declaring their said authority, or being required by the immediate Lord or Lords of whom such copy or customary holds then shall be holden, to serve the King, for any the causes above rehearsed, and refuse so to do, shall (only during the life of such person or persons so refusing) forfeit to his Lord or Lords, of whom such copy or customary holds then shall be immediately holden, & should be holden during the life of such person or persons so refusing, in case he had not refused, all their copy & customary holds: And it shallbe lawful to every such Lord, etc. his heirs or assigns of whom such copy or customary holds shallbe immediately holden, & should have been holden, in case that such persons or persons had not so refused, to enter & take into his or their hands or possessions all such copy & customary holds so holden of them, or any of them immediately, & to retain the same during only the life of such offendor or offenders, in such manner as he or they should have had the rents or services of such copy or customary hold, in case such person or persons so refusing, had not refused. A farmer required refuseth to serve. 39 All & every farmer being a yeoman, husbandman, artificer, or labourer, 1. M. 12. & being of the age of xviij. years, or more, & under the age of lx. years, not sick, impotent, lame, maihemed, nor having any other reasonable excuse or cause to the contrary, & being required by the sheriff, justice, or justices of peace, or other having authority by this act, or by commission, or letters etc. they declaring their said authority; or being required by their said Landlord or Landlords for the time being, to whom the rents of such farms shallbe then rising, growing, or coming, to serve the king, for any the causes above rehearsed, and refuse so to do, shall (during only the life of such farmer or farmers so refusing) forfeit and lose to such Landlord and Landlords as should have had the rents of such farmer during the life & lives of such person & persons so refusing, all their said farms. And it shallbe lawful to every such Landlord etc. their heirs and assigns to whom the rents of such farms should have been due, during the life of such person or persons so refusing (in case he or they had not refused) to enter & take into his or their hands or possession all such farms, & to retain the same only during the life of every such offendor or offenders. But after the death, expiration, or determination of the interest or term of years of every such copyholder, customary holder, or farmer, as so shall offend, & forfeit any of the said copyholds, customary holds, or farms, as is aforesaid: them every such person as should, or aught to have had the copy holds, customary holds, or farms, after, or by the death, expiration, or determination of the interest, or term of years of such copieholder, customary holder, or farmer (in case such copieholder, customary holder, or farmer, had not so offended ne forfeited) shall and may have the same copie-hold, customary holds, and farms by entry, action, admission, or otherwise, in like manner, form, and condition, and by such means, as they and every of them should, might, or aught to have had, if no such forfeiture or offence had been had, done, or committed. 40 If any person shallbe spoken unto, moved, 1. M. 12. or stirred to make any commotion, Disclosing a commotion when one is moved. insurrection, or unlawful assembly for any of the intents above mentioned, and do not within 24. hours next after he shallbe spoken unto, moved, or stirred (unless he have good and reasonable cause of excuse) declare the same unto one justice of the peace, or Sheriff of the said county, or to the Mayor, Sheriffs, bailiffs, or other head officers of any city or town corporat, where such commotion etc. shall be had; he shall suffer imprisonment by the space of three months, without bail or mainprize, unless he shall be discharged by 3. justices of peace (whereof one to be of the Quorum) of the same shire where the offence shall be committed. 1. M 12. 41 If any person being above the age of eighteen years, An able person required refuseth to serve. and under the age of threescore, being able to serve, and not sick, lame, or impotent, shall be required by any justice of peace, or any Sheriff of any County, where any such assembly shall be, or by any Mayor, bailiff, or other head Officer, of any city, borough, or town corporat, or by any other by the commandment of any such justice, Sheriff, Mayor, etc. to go with him, or them, to suppress the persons unlawfully assembled in manner and form aforesaid: then every person which so being able, and required, doth willingly and obstinately refuse so to do, shall suffer imprisonment for one whole year, without bail or mainprize. 1. M. 12. 42 If the King shall by his Letters patents make any Lieutenant in any County or Counties of this Realm, Attendance upon a lieutenant. for the suppressing of any commotion, rebellion, or unlawful assembly; then as well all justices of peace, and the Sheriff and Sheriffs of the same, as all Majors, Bailiffs, and other head officers, and all inhabitants and subjects of any County, City, Borough, or town corporat, within every such County, shall upon declaration of the said Letters patents and request made, be bound to give attendance upon the same Lieutenant, to suppress any commotion, rebellion, or unlawful assembly, unless he so required have any reasonable excuse for his not attendance, upon pain of imprisonment for one whole year. 1. M. 12. 43 The order and form of the Proclamation that shall be made by the authority of this Act, shallbe as hereafter followeth, The form of the Proclamation. or with the like order and words in effect, viz. The justices or other persons authorized by this Act, to make the said Proclamation, shall make or cause to be made an Oyes, and after that shall openly pronounce or cause to be pronounced these words, or to the like effect: The King our Sovereign Lord chargeth and commandeth all persons being assembled, immediately to disperse themselves, and peaceably to departed to their habitations, or their lawful business, upon the pain contained in the act, lately made against unlawful and rebellious assemblies: And God save the King. 1. M. 12. 44 If any person or persons do, or shall molest, let, hinder, Hindrance of the Proclamation. or hurt any person or persons, that shall proclaim, or go to proclaim, according to the proclamation and order aforesaid, whereby such proclamation shall not be made; then every such person so molesting or hurting, etc. and having knowledge of his message, shall incur such danger, and suffer such pains and forfeitures, the persons assembled, to whom the proclamation should have been made, should by this Act incur, for not obeying the Proclamation (if it had been made,) or for doing after the Proclamation of any the things before expressed. And also all such persons being assembled to the number aforesaid, to attempt or do any the things aforesaid, to whom Proclamation should or ought to have been made, if the same had not been let, shall likewise in case they do after put in ure, and do any the things aforesaid, having any ways knowledge of the let so made, or by any means procuring the same let, incur like danger, and suffer like pains and forfeitures aforesaid, in every their degrees, as though the proclamation had been made: any clause, article, etc. in this Act etc. notwithstanding. Other men's right saved. 45 All and every the heir and heirs of all and every the offendor and offenders in any the cases aforesaid, and all and every person and persons, 1. M. 12. bodies politic and corporat, their heirs, successors, and executors, and every of them (other than such person and persons only, as shall be attainted, convicted, and outlawed of any the foresaid offences of felony) shall have, hold, & enjoy all such right, title, entry, interest, leases, possessions, rents, conditions, profits, and advantages, as they, or any of them shall, or of right aught to have, in, or to any manors, lands, rents, reversions, services, or hereditaments whatsoever, or in, or to any part thereof, in as large manner to all intents, as if such attainder had never been had: any thing in this act etc. notwithstanding etc. Saving to every person and persons, bodies politic and corporate, and their successors, their liberties and franchises in such manner, as if this act had never been made. Procuring others to offend. 46 If any person or persons do move, stir, 1. M. 12. or procure any person or persons, to commit any of the offences in this Act specified: then every such person and persons which shall procure, stir, or move any person or persons so to offend, shall suffer such punishment by imprisonment, without bail or mainprize, as is before expressed in this Act against counsellors of such offenders. Unlawful assemblies by xl. or above. 47 If any persons to the number of forty or more, 1. M. 12. shall assemble together in forcible manner unlawfully, and of their own authority, to the intent to execute, do, or put in ure any of the things above specified, or to do any other felonious or rebellious act or acts, and so shall continue together by the space of three hours after proclamation shall be made, at or nigh the place where they shall be so assembled, or in some market town thereunto next adjoining, and after notice to them given thereof: Then every person so willingly assembled in forcible manner, and so continuing together by the space of three hours after such proclamation made, and notice thereof given, shall be adjudged a fellow. A lieutenant shall not appoint a deputy. 48 No lieutenant that shall be made by authority or colour of this Act, 1. M. 12. or for to execute this Act, shall constitute under him, or in his place, any deputy, nor shall call or appoint to appear before him, by the only authority of lieutenancy, or of commission of lieutenancy any person for any cause or matter whatsoever, save only for the causes and matters expressed in this Act, and for none other. Aiding of the offenders after the offence 49 No person or persons shall be put to any loss, forfeiture, pain, 1. M. 12. or punishment, of life, land, or goods, as accessory to any person or persons, that shall commit any of the offences contained in this act, for receiving, comforting, or aiding of any such offendor, after such act committed or done. 1. M. 12. 50 No attainder or conviction of any person or persons, The attainder of those offences no corruption of blood. for any offence or offences herein contained, shall be any corruption of blood betwixt the offendor and any of his ancestors, or such person or persons as should have been heir to such offendor, if no such attainder or conviction had been had: saving to every person and persons, bodies politic and corporat etc. their liberties and franchises, in such manner as if this Act had never been made. ❧ Of Force, forcible Entries, and forcible retaining of possessions. Unlawful force an enemy to peace. 1 FOrce and violence executed without warrant of Law, be so mere contrary to the peace and justice of the Realm, as disobedience is to loyalty, and contempt to government: for whosoever doth make a Forcible entry into lands in the possession of an other, doth secretly revolve in his mind, and distrust to himself, that there is no Law in the Realm to redress his wrong, or no ministers to execute the same; and therefore he will sit in judgement of that cause himself, and take into his own hands the distribution of justice, and assume into his possession by the strength of his arm, what the fantasy of his head shall resolve to be his due; whereas the Law in convenient time would truly satisfy him, whether the land in question, by the rules of justice be his, or not, and also assign him a mild and calm course to recover all his whole duty, with valuable damages for the time he is injured. And because this force and forcible entry into lands, is so opposite and mere repugnant to the peace and justice of the Realm, and tendeth so much to the dishonour of the King, and his Crown, and the discredit of the Law, that any person by birth and oath devoted to the obedience of the King, and his Laws, should presume of his own authority, by force, and strong hand to resist them both, and as it were in contempt of them, violently to intrude himself into an other man's possession, before the law hath decided his title therein: Therefore the wisdom of the Realm, hath by the space of many generations first provided to restrain those forces, and forcible Entries, and next to inflict condign punishment upon them, which were offenders therein: Whereupon by a Statute made Ann 5. There shall be no forcible entry into lands. R. 2. the King defended, St. 5. R. 2. 7. that none from thenceforth should make any Entry into any lands and tenements, but in case where entry is given by the Law, and then not with strong hand, nor with multitude of people, but only in a peaceable course & manner. And if any from henceforth do the contrary, and thereof be duly convict, he shall be punished by imprisonment of his body, and thereof ransomed at the King's pleasure. 2 But for that the said Statute of 5. R. 2. did give no speedy remedy to those which were expelled out of their lands or tenements, nor assigned any special persons to suppress the said disorder: Therefore by an other Statute made Ann 15. St. 15. R. 2. 2 R. 2. it was further ordained, The penalty of forcible entry into lands or benefices. That when any such forcible entry shall be made into lands or tenements, or into any Benefices or offices of the Church, and the complaint thereof come to the justices of the peace, or any of them, that the same justices or justice take sufficient power of the County, and go to the place where such forcible entry is made, & if he or they find any that holdeth such place forcible after such entry made, they shall be taken, and put into the jail, there to abide convict by the record of the same justices, or justice, until they have made fine and ransom to the King. And all they of the County, aswell the Sheriff, as other, shall be attending upon the justices to go and assist the same justices, to arrest such offenders, upon pain of imprisonment, and to make fine to the King. 3 And forasmuch as the said Statute of 15. R. 2. doth not extend to Entries into tenements in peaceable manner, and after holden with force, nor if the persons which enter with force into any lands or tenements be wholly removed and departed before the coming of the said justices, or justice; Neither is there any pain ordained, if the Sheriff do not obey the precepts of the justices in this behalf. St. 8. H. 6. 9 Therefore by an other Statute made Ann 8. H. 6. it was ordained, that the said former Statutes should be continued and executed. And further, that where any do make such forcible entry into lands, tenements, or other possessions, or hold them forcible, Holding possession by force. after complaint thereof made within the said County where such entry is made, to the justices of peace, or to one of them by the party grieved, that the justices or justice so warned, within a convenient time cause the said Statute to be executed, and that at the costs of the party so grieved. And whether such persons making such Entries be present, or gone before the coming of the said justices or justice, presently the same justices or justice in some good Town next unto the tenements so entered, or in some other convenient place, according to their discretion, shall have authority to inquire by the people of the same County, aswell of them that made such forcible entries into lands or tenements, feoffment of lands for maintenance. as of them which hold the same with force. And if it be found before any of them, that any doth contrary to this Statute, than the said justices or justice shall cause the lands or tenements so entered or holden as aforesaid to be reseized, and shall put the party so put out, in full possession of the same lands or tenements so entered or holden, as before they were entered or holden. And if any person after such entry into lands or tenements holden with force, make a feoffment or other discontinuance 〈◊〉 any Lord, or other person to have maintenance, or to take away and defraud the possessor of his recovery in any wise, if after in an Assize, or other action thereof to be taken or pursued before justices of Assize, or other the King's justices whatsoever they be, by due inquiry thereof to be taken, the same feoffements and discontinuances may be duly proved to be made, for maintenance, as is aforesaid, than such feoffements or other discontinuances so as before made shall be void. And if any person be put out or disseised of any lands or tenements in forcible manner, or put out peaceably, & after holden out with strong hand, and arms, against the justice of peace; or after such entry, any feoffment or discontinuance in any wise thereof be made, An Assize or action of trespass against disseisor by force. to defraud & take away the right of the possessor, the party grieved in this behalf, shall have an Assize of Novel disseisin, or a writ of Trespass against such disseisor. And if the party grieved recover by Assize, or by action of Trespass and it be found by verdict, or in any other manner by due form of the Law, that the party defendant entered with force into the lands & tenements, or them after his entry did hold with force, than the plaintiff shall recover triple damages against the defendant, and moreover the defendant shall make fine and ransom to the King. The authority of officers of Cities and Towns enfranchised. And the Majors, justices and justice of peace, Sheriffs, and bailiffs of Cities and boroughs having franchise, shall have in the said Cities, Towns, & boroughs, like authority to avoid such Entries, and in other articles aforesaid, rising within the same, as justices of peace and Sheriffs in Counties and Shires have. 4 As by the foresaid Statute of 8. H. 6. if any person after entry into lands or tenements holden with force, shall make any feoffment or other discontinuance thereof to any Lord or other person, to have maintenance, or to defraud the possessor of his recovery, than the same feoffements & discontinuances shall be void: So by an other Statute made before that Anno 4. H. 4. St. 4. H. 4. 8. it was enacted, A special Assize against a disseisor with force. That if any man in his own right to his use, or in an other man's right to his use, doth make any forcible entry into an other man's lands by way of maintenance, or doth take or carry away any goods of the possessors of the freehold after any such forcible entry; then if the party grieved or other lawful man will affirm, that the entry was made in such forcible manner, the Chancellor of England may grant to the party grieved a special Assize: And if the disseisor be attainted of such forcible disseisin, he shall be one year imprisoned, and pay to the party grieved his double damages, and also damages for his goods. And one of the justices of the one Bench, or of the other, or the chief Baron of the Exchequer (if he be learned in the law) shall be named in every such special Assize. And no Supersedeas shallbe granted to the contrary of such Assize. 5 Wherefore, if a man be disseised by force of any lands or tenements by way of maintenance, or that his goods be taken or carried away after such entry made: Or that he be put out, or disseised of his lands in forcible manner: Or that he be put out peaceably, and after holden out with force against a justice of peace: Or after such entry, any feoffment or discontinuance be made to defraud and take away the right of the possessor; then the party grieved (as his case requireth) may have a special Assize against the disseisor, and recover his double damages, Several remedies for several offences by force. and damages for his goods, and the disseisor shall be one year imprisoned, according to the foresaid Statute of 4. H. 4. St. 4. H. 4. 8. Or else he may have an Assize of Novel disseisin, or an action of Trespass against the disseisor, and recover triple damages; and moreover, the disseisor shall make fine and ransom to the King, according to the before rehearsed Statute of 8. H. 6. St. 8. H. 6. 9 Or if the plaintiff will omit the benefit of recovery of his damages, he may only crave and use the assistance of a justice of peace, to see and remove the force, to record it, to inquire of it, and to make him restitution, according as the truth of his case shall appear to the said justice upon his own sight, or be found by inquisition, according to the former provision of the said Statute of 8. H. 6. Or lastly, he that is put out, or holden out of his lands with force, may have a writ directed out of the Chancery to the Sheriff only, or to the Sheriff and the justices of peace upon the Statute of Northhampton made Ann 2. Ed. 3. St. 2. E. 3. 3. commanding that proclamation may be made upon that Statute. 6 And for that it is convenient, that he who is with force expelled out of his lands, or by force detained from the same, should not be long kept out of possession thereof, but that there should be a speedy redress to restore him to his own: and also because it is meant, that the inquisition of that force should be made by men of good estate, and so the more like to be indifferent, of better understanding, and to declare the truth in those cases: Therefore by the foresaid statute of Anno 8. Sta. 8. H. 6. 9 H. 6. it was moreover ordained, That when the said justices or justice shall make such inquiries, as are beforesaid, they shall cause their warrants and precepts to be directed to the Sheriff of the same County, A precept to the Sheriff to impannell a jury. commanding him on the King's behalf to cause to come before them, and every of them, sufficient and indifferent persons, dwelling next about the lands so entered upon as before; to inquire of such entries, whereof every man that shall be impanelled, and may inquire in this behalf, shall have lands or tenements to the value of xl. s. by the year at the least above reprises, and that the Sheriff return issues upon every of them at the day of the first precept returnable xx. s. and at the second day xl. s. and at the third day five pounds, and at every day after, the double. And if any Sheriff or Bailiff within a franchise, having the return of the King's writs be slack, and make not execution duly of the said precepts to him directed to make such inquiries, he shall forfeit to the King xx.li. for every such default, sheriff's forfeiture. and moreover shall make fine and ransom to the King. And aswell the justices or justice aforesaid, as the justices of Assize, and every of them, at their coming into the Country to take Assizes, have power to hear and determine such defaults, and negligences of the said Sheriffs, and bailiffs, and every of them, aswell by bill at the suit of the party grieved for himself, as for the King, to sue by Indictment only to be taken for the King. And if the Sheriff or bailiff be duly attainted in this behalf by Indictment, or by bill, he which sueth for himself, and for the King, shall have the one moiety of the forfeiture of xx. li. together with his costs and expenses. The process. And the same process shall be made against such persons indicted, or sued by bill in this behalf, as should be against persons indicted or sued by writ of Trespass with force and arms against the King's peace. 7 The form of which precept by a justice of peace, Buck. to the Sheriff to return a jury, to inquire of Forcible entries is this. Edwardus Tirrell miles unus Iusticiariorum dni Regis, The form of a Precept to the Sheriff to return a jury. ad pacem in Comitatu Buck. conseruandam assignatorum vicecomiti eiusdem Comitatus salutem: Ex part dicti Domini Regis tibi mando, quod venire facias coramme apud Thornborough in Comitatu praedicto 10. die Octobris proximo futuro 24. probos, sufficientes, & legales homines de viceneto de Thornborough praedicto, quorum quilibet habeat 40. solidos terrarum & tenementorum, vel reddituum pet annum ad minus ultra reprisas, ad inquirendum super sacramentum suum, si A. B. de Adstock in dicto Comitatu Buck. blacksmith, & alij malefactores, & pacis dicti domini Regis perturbatores, in unum mesuagium & 20. acras terrae & alia tenementa de C. D. husband. de T. praedict' manu forti super possessionem dicti C. D. ingressi sunt, aut eadem cum fortitudine adhuc tenent & occupant. Et videas quod super quilibet juratorum in hoc part impan nellandorum xx. s. ad primum diem returns; & hoc nullatenus omittas sub pena xx.li. quam noveris te incursurum, si in executione praemissorum tepidus aut remissus fueris. Et habeas ibi hoc praeceptum. Datur apud Thornton xx. die Septemb. Anno Regni domini nostri Regis jacobi etc. tertio. 8 The form of an inquisition or verdict of the jury which are returned and sworn to inquire of forcible Entry into lands or tenements, or of the forcible detaining of them taken by a justice of peace is this. Buck. The form of an Inquisition of forcible entry. viz. Inquisitio pro domino Rege capta apud Buckingham in Com̄ praedicto xx. die N. Anno Regni domini nostri Regis jacobi etc. quarto, super sacramentum A. B. C. D. E. F. G. etc. coram Thoma Temple milite uno Iusticiar' dicti domini Regis ad pacem in dicto Comitatu conseruandam assignatorum: Qui dicunt, quod ubi H. I. de Tyngswicke in Comitur predict husbandman, qui legitime & pacifice seisitus fuit in dominico suo ut defecdo, de uno mesuagio cum pertinentijs in Tyngswick praedicto, & possessionem suam sic continuavit, quousque L. M. de Maydsmoorton in Comitatu praedicto labourer, & alij malefactores, & pacis dicti domini Regis perturbatores thirty. die O. iam ultimo elapso, vi & armis, viz. cum baculis, gladijs, arcubus, sagittis, fustibus, gunnis, & balistis in mesuagium praedictum etc. intraverunt, & ipsum H. I. inde expulerunt, & idem mesuagium etc. a praedicto thirty. die O. usque ad diem captionis huius inquisitionis etc. cum huiusmodi fortitudine & potentia tenuer̄, & occupaverunt, in magnam pacis dicti domini Regis perturbationem, & contra formam statuti in tali casu editi & ꝓuisi, ubi nullus eorum, nec aliquis alius cuius statum ipsi aut aliquis eorum habuerunt, aut habuit, aliquid in eodem mesuagio etc. aut aliqua inde parcella habuerunt, aut habuit infra tres annos proximos ante ingressum suum praedictum, nequè aliquo tempore praecedente ad notitiam juratorum pndictorum. 9 And for that the said Statute of 8. H. 6. hath ordained, That if it be found before any of the said justices of peace, that any doth contrary to that Statute, than the said justices or justice shall cause the lands or tenements so entered, or holden with force to be reseized, and shall put the party so put out in full possession of the same lands, so entered or holden as before they were entered or holden: Therefore, when the justice of peace shall by the said Inquisition be informed, or by the view of his own eye perceive, that any such forcible entry into any lands hath been made, or after the same lands be holden with force, he is either himself to reseise the same lands, and put the party in possession again, who was so forcibly expelled or kept out of possession, or else he is to make his Precept to the Sheriff of the same County to make restitution to the same party. The form of which warrant or precept is this, viz. Georgius Throckmorton Miles, Buck. A warrant to the Sheriff to make restitution. unus Iusticiariorum dni Regis ad pacem in dicto Comitatu conseruandam assignatorum, Vicecom eiusdem Comitatur, salutem. Cum per quandam Inquisitionem patriae coram me captum apud East-Claydon in Comitatu pndicto 2. die Dec. Anno regni dni nostri jacobi quarto, super sacrmm A. B. C. D. E. F. etc. ac per formam statuti in hmodi casu ꝓuisi compertum fuerit, qd' L. M. de Horwood magna in Compredict' husb. alij malefactores, & pacis dicti dni Regis perturbatores, 26. die No. ann dicti dni Regis nunc quarto, in quoddam messuagium etc. N. T. in East-Claydon pndicta, vi & armis ingressi fuerunt, ac ipsum N. T. inde expulerunt, & predictum mesuagium etc. a pndicto 26. die etc. usque ad dictum secundum diem Decemb. manu forti & cum potentia tenuerunt, ꝓut per Inquisitionempndictam plenius liquet de recordo: Ideo ex part dicti dni Regis tibi mando, & precipio quod ad hoc debitur requisitus, una cum posse Comitatur tui, si necesse fuerit, accedas ad mesuagium & caetera praemissa, ac eadem cum pertinentijs reseisiri facias, & pfatum N. T. ad & in plenam possessionem suam inde, ꝓut ipse ante ingressumpndictum fuerat, restituas, & mitti facias, juxta formam dicti statuti, de Ingressibus manu forti factis aediti & ꝓuisi. Et hoc nullatenus omittas sub periculo incumbentur. Teste me pfato G. Throckmorton. Datum apud Fulbrooke etc. tertio die Decembris etc. 7. Ed. 4. 18. 4. H. 7. 18. 15. H. 7. 5. 10 If a man be indicted before the justices of peace in the County, Restitution awarded out of the K. bench for that he did with force expel, and put another out of his possession of certain lands within the same County, and after this indictment is removed into the king's bench by a Certiorari, the justices of the same court may award a writ of Restitution to the sheriff of the same County, to restore possession to the party so expelled, though the words of the statute of 8. H. 6. do give that authority only to the justices of peace of the County, where the forcible entry is made: and if he be indicted before justices to hear & determine, and after the record is removed into the K. Bench, the justices of the same court may award restitution: for that they who have supreme authority, and do represent the K. person, now have before them the record whereby the party was indicted. 11 By the words of the foresaid statute of 8. H. 6. it doth appear, No restitution, but where the force is found by inguisition. that one justice of peace alone may remove the force, 21. H. 6. 5. and also inquire thereof, & so may divers justices. But by the aforesaid statute no restitution can be made to the party put out of possession, if the said expelling or putting out of possession be not found by inquisition: nor but in case, where the words of the Indictment upon the statute of 8. 14. H. 6. 16. H. 6. be, adhuc extratenet. 12 In the foresaid statute of 8. H. 6. there is a proviso, That they which keep their possessions by force in any lands and tenements, whereof they or their ancestors, or they, whose estate they have in such lands or tenements, have continued their possession by the space of three years or more, be not endamaged by the force of the said statute. And by one other statute made Anno 31. St. 31. El. 11. Eliz. for the explanation and declaration of the meaning and intent of the said proviso, and of the law therein, it was ordained, declared, and enacted, That no restitution upon any indictment of Forcible entry, Where no restitution against three years possession. or holding with force, shallbe made to any person or persons, if the person or persons so indicted hath had the occupation, or hath been in quiet possession by the space of three whole years together, next before the day of such indictment so found, & his, her, or their estate or estates therein not ended nor determined: which the party indicted shall and may allege, for stay of restitution, and restitution to stay until that be tried, if the other will deny or traverse the same. And if the same allegation be tried against the same person or persons so indicted, than the same person or persons so indicted to pay such costs & damages to the other party, as shallbe assessed by the judges or justices before whom the same shall be tried, the same costs and damages to be recovered and levied, as is usual for costs and damages contained in judgements upon other actions. If a man hath been in quiet and peaceable possession of lands three years or more by a good title, 4. & 5. P. & M Dy. 141. and then is expelled and disseised of them, and the party offending is therefore indicted upon the statute of 8. H. 6. and the disseisée who was expelled, is restored to his possession by a writ of Restitution, and is in possession accordingly; in this case he cannot justify the detainer of the possession of those lands, by force of the foresaid proviso contained in the statute of 8. H. 6. because his possession was interrupted & discontinued, for that possession must be three whole years together without interruption, before the said party may by the said proviso keep his possession by force. And likewise if he that is a just and lawful possessor of lands by the space of twenty years together, 3. & 4. P. & M. Dy. 141. be once clearly & wholly removed from the possession of the same land, he cannot come again with force, and a multitude of people to put himself in possession thereof, and detain the same with force, by virtue of the proviso in the said statute of 8. H. 6. because his possession was interrupted. Neither in this case, if he be indicted of a Forcible entry, according to the statute of 8. H. 6. shall he be relieved touching his restitution by the foresaid statute of 31. El. for that he had not the occupation, nor had been in quiet possession by the space of three whole years together of the same lands next before the day of such indictment found. But if a man be seized of a lawful possession by the space of three years of any land without interruption, 22. H. 6. 18. Fitz. Na. B. 249. he may keep his possession by force against all others. And he is neither to be removed from his possession by a Iust. of peace, though it be found by inquisition, that he held that land by force, nor yet by an action of Forcible entry brought against him upon the said statute of 8. H. 6. Otherwise it is of a disseisor, where restitution notwithstanding three years possession. or of a man that cometh to land by a wrongful and unlawful title: for if he hath detained the land by force, three years, 14. H. 7. 28. or twenty years, he may be indicted by virtue of the statute of 8. H. 6. before a justice of peace, of forcible detaining of the same land, and that being found, the said justice of peace is to reseise the land, and to award restitution to the party disseised or expelled thereof. And also the same disseisor shall make fine and ransom to the King (cui nullum tempus occurrit) whose peace is broken by this long and unlawful detaining of the possession of another man's land by force. But the party disseised, expelled, or kept out of possession, cannot in this case maintain an action of Forcible entry upon the said statute of 8. H. 6. against the said disseisor, seeing he hath omitted his time, & suffered the disseisor to gain of him three years possession, & thereby the benefit of the same proviso contained in the said statute of 8. H. 6. 13 If a man who hath made an Entry upon the possession of another of any lands or tenements by force, or doth hold lands by force, 1. R. 3. 4. after a peaceably entry made, do doubt, that he shallbe thereof indicted before a justice of peace upon the statute of 8. H. 6. and that restitution will be thereupon awarded, he may have a Certiorari out of the King's Bench ready, and when the Bill of Indictment is found, he may presently deliver it to the court, and that shallbe a Supersedeas to stay Restitution, A Supersedeas to stay restitution. for that by this Certiorari the indictment shallbe removed. And though the indictment be found after the Teste of the writ of Certiorari, it is not material, for they be both the King's Courts. And when an indictment upon the said statute of 8. H. 6. 2. & 3. P. & M. Dy. 122. is removed into the king's Bench, and that the party indicted doth tender to traverse the same, the justices of the same Bench may grant or stay restitution, at their discretion, according as the truth of the Title shall appear to them. But if a special sessions be procured to inquire of a Forcible entry, or detaining of possession, according to the said statute of 8. H. 6. and the justices to whom complaint is made, do repair to the place supposed to be entered upon, or holden with force, 2. & 3. P. & M. Dy. 187. and do see the same according to the said statute, & after they do inquire thereof, and that is found, and thereupon they grant restitution; no other justice of peace can grant a Supersedeas to stay the same restitution: for by the said statute no other justice hath authority to grant restitution, but he or they to whom the complaint is made, and before whom the force is found, & the writ shallbe granted under the Teste of one of them only, saving the justices of the K. Bench, who have supreme authority, and where the law doth intend, that the King himself doth sit. 14 Whereas the words of the foresaid statute of 8. H. 6. be: Sta. 8. H. 6. 9 If it be found before any of the justices or justice of peace, that any doth contrary to this statute (viz. enter upon, or hold lands with force) than the said justices or justice shall cause the lands or tenements so entered or holden to be reseized, and shall put the party so put out in full possession of the same lands or tenements so entered or holden, as before they were entered or holden. And therefore if the father be put out of possession of lands by force, and dieth before or after inquisition thereof, his heir shall not have restitution thereof upon the said statute of 8. H. 6. for that he was not the same person which was put out. And the same Law is, if after the death of the father, Where force found, and no restitution. dying seized of certain lands, a stranger doth abate, and holdeth the same lands by force against his heir, before he had gotten any possession indeed, and that force is found before a justice of peace by an inquisition, the same heir shall not have restitution by the words of the said statute, for that the same heir had but a possession in law, and was not in actual possession of that land, neither is he that party who was put out. And so it is, if tenant for term of years of certain lands be put out of his term by force, and die, though after his death the force he f●und by inquisition taken by a justice of peace, his executors shall not be restored to the possession of that land by the same justice of peace, causa qua supra. But yet in the cases aforesaid the offendor shall be punished by imprisonment & fine to the K. for by his forcible entry he hath broken the peace. St. 15. R. 2. 2. 15 Whereas by the before rehearsed statute of 15. Rich. 2. it is ordained, That when any forcible entry shallbe made into lands, and complaint thereof come to a justice of peace, he shall go to the place where the entry was made, and if he find any that hold any such place forcibly after such entry made, they shallbe taken and put into the jail etc. The form of which justice of peace Mittimus, whereby he shall send the same offenders to the jail, is this, viz. Francis Fortescue knight, Buck. A Mittimus to send to the jail such as do hold land by force. one of the justices of peace of our Sovereign Lord the King, within the county of Buckingham, to the keeper of his Ma. jail in Aylesbury in the said county, and to his deputy and deputies there, and to every of them greeting: Upon complaint made to me by A. B. of Whaddon in the said county husbandman, that C. D. E. F. of S. in the said county labourers, and other malefactors and disturbers of the King's peace had forcibly and with strong hand entered into his house etc. in Whaddon aforesaid, and him expulsed, & the same yet held with force, I went this present day to the said house, and there found the said C. D. E. F. holding the said house etc. with swords and bucklers, bills and staves, to the great disturbance of his Ma. peace, and against the form of the said statute in that behalf ordained. And therefore I send you by the bringers hereof the bodies of the said C. D. E. F. convicted of the said forcible holding by my record: commanding you and every of you in his Ma. name, that you receive them, & safely keep them in your said Goal, until they shall have made their fine and ransom to the King, and be delivered thence by the order of the law. Hereof fail you not, upon the peril that will fall thereof. Dated at Salden the 30. day of I. in the third year of the reign of our sovereign Lord K. james etc. 16 And though the words of the before rehearsed stat. of 8. H. 6. be, Upon complaint made to the I. of P. or one of them etc. yet those words do not always bind a I. of P. to expect the complaint of the party grieved, or to omit to do his duty in enquiring of, repressing, & punishing of force, because the party grieved by the forcible entry, or detaining of possession, is ignorant in seeking lawful redress for his received injury, or doth intent to take his remedy by other means: but a I. of P. having notice of such forcible entry, A justice may inquire of forcible entries without complaint. or detaining of possession by force (though it be by others and not by the party grieved) may and of duty ought to go to the place where the same force is committed, & to make inquisition thereof; 7. E. 4. 18. and if the force be found, to make restitution to the party expelled or put out by force. And so by his means the offendor shall be punished according to his desert, the party wronged shall be restored, & the king shall be entitled to a fine, all which without the said justices diligence would be omitted. An action of forcible entry. 17 If a man that is seized of lands or tenements of an estate in fee simple, Fitz. Na. B. 248. fee tail, for term of his own life, or for the term of another's life, be disseised or expelled thereof by force, he may have an action of Trespass of forcible entry upon the foresaid statute of 8. H. 6. against him or them that did so disseise or expel him thereof: and so he may, if he be put out, 6. H. 7. 12. or disseised of his lands or tenements peaceably, and after the disseisor, or he that doth expel him, 14. H. 6. 1. doth hold them with force. And in like sort he may have the same action, 3. E. 4. 19 10. E. 4. 11. if any doth enter into his said lands or tenements with force, & after doth defend and hold them by force, than he which is so put out and holden out with force, may have this action, though the words of the statute be in the disjunctive, viz. disseised with force, or disseised quietly & after holden out with force: for that the intent of the statute was to punish all such forces, whether it were upon the entry & disseisin made, or upon the holding and detaining of the land with force: in all which cases, he who is so disseised or put out, may have an action of forcible entry upon the said statute of 8. H. 6. and shall recover his damages and costs to the triple of that which shallbe found by the inquest, that he is endamaged, 19 H. 6. 6. 22. H. 6. 57 9 H. 6. 19 & hath spent in his suit, The writ of forcible entry must be Vi & armis. & as well for the occupation as for the first entry. And it is to be noted, that the writ & declaration in an action of forcible entry, must be, that the def. entered vi & armis, and not illicit, or by any other such words: for if the writ be otherwise, it shall abate; seeing a writ of forcible entry is always vi & armis, 37. H. 6. 23. 38. H. 6. 1. and process of Outlawry lieth in it: and the declaration must express the certainty of the lands, whereupon the defendant did make his forcible entry, and which they be, and not suggest, that he did enter upon certain lands in D. And in this action of Forcible entry, 35. H. 6. 6. 49. Ed. 3. 2. Co. lib. 3. 12. and in all actions Quare vi et armis, a Capias doth lie, and where a Capias doth lie in the process, there after judgement a Capias ad satisfaciendum doth lie, and there the king shall have a Capias pro fine. Who may bring an action of forcible entry. 18 None can pursue or maintain this action of Forcible entry, Fit. Na. B. 248. but he who hath freehold at the least in the lands or tenements so entered upon: for tenant for term of years, or a copyholder, cannot maintain this action, for that the words of the said stat. of 8. H. 6. be, If any person be put out, Sta. 8. H. 6. 9 or disseised of any lands etc. and the words of the writ grounded upon the said statute be, Expulit et disseisivit: and tenant for term of years, or a copyholder, cannot be disseised, seeing disseisin is always of a freehold, which neither of them have in that land. But if tenant for term of years, or a copiholder, be put out by force, or put out peaceably, & after holden out with force of land which either of them doth hold by the said estate: then upon complaint made by the party grieved to a I. of peace, after inquisition thereof by a jury, & the same force found, the said Iust. may reseise the said lands, & cause restitution thereof to be made to the party so put out: for in this case the same complaint may be made to the said I. of P. aswell by him in the reversion, as by the tenant for term of years, or copiholder: seeing he in the reversion who is disseised of his freehold by this forcible entry, is & may as well be termed the party grieved, as the tenant for term of years, or the copyholder for their said particular estates. And when the justice of peace hath made restitution, the particular tenant for term of years, or copyholder, and also he or they in reversion shall hold and enjoy their said several estates in the same lands, 4. & 5. P. & M. Di. f. 142. in such sort as they did before the said Forcible entry made. But if tenant for term of years be expelled out of that land which he so holdeth for the term of years, he in the reversion cannot bring an action of Forcible entry upon the statute of 8. H. 6. for the same, although it be a disseisin to him, for that the expulsion is not done immediately to him. Fit. Nam Br. 248. 9 H. 6. 19 19 If a man do enter by force into lands or tenements, He that hath title entereth by force. whereunto he hath right or title to enter, & doth put out him who hath the freehold of the same lands, in this case he who is so put out by force, cannot maintain an action of trespass of forcible entry against him, who hath title to enter, for that his entry was no disseisin to the other, who was not lawfully seized thereof: but he may invite him for this forcible entry, & this indictment being found, he shallbe restored to his possession again by a Iust. of peace by virtue of the said statute of 8. H. 6. And after that, 22. H. 6. 18. he that did first enter forcibly by lawful title, may again enter peaceably, or bring an assize of Novel disseisin at his pleasure. Fit. Na. B. 249. 22. H. 6. 37. 20 If a man do enter into lands or tenements, & disseise one with force, He that hath possession sueth a writ of forcible entry. and after the disseisée doth réenter again, yet the same disseisee may pursue an action of Trespass of forcible entry against the disseisor, & recover his triple damages, though he be seized of the land at the time of the writ brought. And therefore it is not a sufficient plea in a writ of forcible entry, for the def. to plead, that the plaintiff was seized of the same land the day of the said writ brought. 20. H. 6. 12. 22. H. 6. 23. 21 A man may have a writ of Forcible entry of a rent, as well as of land: Forcible entry of a rent or common. for one may distrain with force for rent, and that doth countervail an entry with force. And one may have a writ of Entry of a rent, which doth suppose, that the def. did enter into the rent. And in an Assize of rent, the disseisin may be found to be done by force. 39 Ass. p. 4. If there be three jointenants of land, out of the which there is a rent going, & upon a distress taken, one of them maketh rescous by force, he only shallbe imprisoned, & yet the others be disseisors. And the like law is of a common of pasture, for a commoner may be force be expelled or kept out of his common. And a man may keep his beasts in another man's ground by force, 27. Ass. p. 30 claiming common where he hath no common, and that is disseisin by force. And in either of the cases aforesaid, a Iust. of peace upon complaint to him made, may remove the force, but not award restitution, because they are to be taken & used in another man's land. 2. H. 7. 16. 17. Ass. p. 14 22 If divers do enter with force to the use of another, Forcible entry to the use of another. who himself doth not enter, but after doth agree to this entry to his use, this agreement doth make him a disseisor, or a trespasser: but he shall not thereby be punished for the force, for there can be no forcible entry without an actual entry. Forcible detaining by words only. And yet there may be a forcible detaining of possession by words only, without act: as if he that hath wrongfully but peaceably entered into another man's house, & expelled and put out the owner thereof, shall say to the same owner, if he do come thither again to enter, he will kill him, this is a forcible detaining of possession. 23 If there be two jointenants or tenants in common of certain lands, & one of them doth expel & put forth the other out of possession of the said lands by force, jointenants or tenants in common expelling each other by force. he that is so expelled, 8. Ed. 4. 9 & 19 10. H. 7. 27. Fit. Na. Br. 249. 21. E. 4. 10. 18. H. 6. 5. may have an action of Trespass of forcible entry against his companion that did so expel him, upon the said statute of 8. H. 6. for the words of the writ may be verified, Expulit & Disseisivit, and thereupon he shall have a writ of Restitution to restore him to his former estate. But if one jointenant or tenant in common of lands do expel the other by force out of the same lands, he that is so expelled, cannot maintain a writ of Entry upon the statute of 5. R. 2. against his companion that so put him forth, and suppose that he did enter into the same lands ubi ingressus non datur per legen: for that his entry and possession in that land is lawful through the whole land in respect of his own moiety or estate: and further, seeing by that action the plaintiff is to recover but only damages as in an action of Trespass, and not to be restored to his possession: which action of Trespass one jointenant or tenant in common cannot maintain against another, for any Trespass done in the land so holden by them. Who may bring a writ of Entry upon the statute of 5. R. 2. 24 None can maintain a writ of Entry upon the said statute of 5. R. 2. 8. E. 4. 9 & 19 ubi ingressus non datur per legem, but only tenant in fee simple, tenant in fee tail, or tenant for term of life at the least: for tenant for term of years, a copyholder, or a tenant at will cannot pursue and maintain it, seeing they have but the manurance and occupation of the land. 4. H. 7. 1. Neither can the King bring the said Action, nor an Assize, Ejection firmae, nor action upon the statute of 8. H. 6. Nor any other action which doth prove him out of possession of the land. Turning a watercourse by force. 25 If a man do enter into another man's ground, Blow. Come 467. and turn away by force an ancient watercourse, which he hath running to his mill, the party grieved may have a special Assize of Nuisance upon the statute of 4. H. 4. against the offendor, & recover his double damages, & yet he was not put out, nor disseised of his freehold, but a Nuisance was done to the damage thereof. The plea of not guilty in forcible entry. 26 In a writ of Forcible entry, the defendant may plead not guilty, Lib. inter fol. 330. Fit. N. B. 249. 14 H. 6. 16. 22. H. 6. 57 22. H. 6. 17. 9 H. 6. 19 21. H. 6. 39 & that shallbe a good plea. But if the defendant do plead some matter in bar, yet he must in the end of the bar traverse and deny the entry with force, which is alleged against him, as to say, without that he did enter with force etc. And the plaintiff must answer to that special matter alleged in the bar, without answering to the Traverse of the force, and upon that special matter, the issue must be joined, and not upon the force. And if that special matter alleged in the bar be found by verdict with the defendant, he shallbe excused, and the force shall not be inquired of. But if it be found with the plaintiff, and against the defendant, than the defendant shallbe attainted of force, and render triple damages, and triple costs, without inquiry of the force. As, one brought an action of Forcible entry upon the statute of 8. H. 6. and supposed that the defendant with force and arms entered into a messsage etc. 15. H. 7. 17. Whereunto the defendant pleaded, The finding of the special matter, doth charge or discharge the def. of force. That a stranger was seized of the same messsage etc. and enfeoffed him thereof, by means whereof he entered peaceably, without that, that he entered by force. And the plaintiff made a title, and traversed the bar, and the issue was found for the plaintiff: 1. H. 7. 19 and thereupon it was adjudged, that the force should not be inquired of: For seeing the title is found against the defendant, he shall be convict of the force, as on the other side, if the bar had been found for the defendant, the force should not have been inquired of: for that if the title of the plaintiff be not good, although the defendant doth enter with force, the plaintiff hath no cause of action; and yet in that case, he that entereth with force, shallbe indicted thereof, and shall pay a fine to the K. therefore. And if the defendant doth enter peaceably, where his entry is not lawful, he may plead, that he did not enter contra formam statuti, and by that means the force and the disseisin shallbe inquired of. But if he make a title to the land by pleading in bar, as is aforesaid, than it shallbe adjudged his own folly. As, in a writ of Forcible entry, when the defendant doth plead in bar, yet he must traverse the force: So in a presentment of Forcible entry Presentment of forcible entry. before the justices of peace, 7. H. 6. 13. it was found and presented, that A. was seized of the manor of B. in his demesne as of fee, until C. did enter upon the said manor, and put him out with force and arms against the king's peace. And this presentment being removed into the king's bench, and process being awarded for the king against C. he appeared and pleaded to the force and arms, & all that is against the peace, not guilty. But the court enforced him to plead to his entry, and then he justified his entry by reason of a remainder entailed to his father of the same land, and that his father entered and died seized thereof, & that he as heir to his father did enter. And so it is, if a man be indicted for the taking away of certain goods by force and arms, he shall answer to the taking, and if he be found guilty of the Trespass, there shallbe no inquiry made of the force and arms. 19 H. 6. 32. 27 A man brought an action of Forcible entry against divers others upon the statute of 8. H. 6. and counted, One action for entering & detaining with force. that they did with force & arms enter upon his land, and put him out, and so declared according to the statute, whereupon they were at issue. And it was found by verdict, that some of the defendants entered upon the land with force and arms, and did not hold it with force, and some others of them did enter peaceably into the same land, and held it with force and arms: and so the jury taxed the damages severally upon both those points: upon which verdict it was adjudged, That the plaintiff should recover triple damages against those that entered forcibly, and also should recover triple damages against those that entered peaceably, and held with force, and the costs of his suit: and further, that the said plaintiff should be amerced, for that he supposed that all did enter with force, which was found against him. And in like sort, if two be indicted of Forcible entry and detaining with force, and upon their Traverse it is found, that one of them entered with force, and the other detained with force, yet restitution shall be awarded to the party put out of possession. Fit. Na. B. 249. 28 And further if a man do enter by force, or detain by force any lands or tenements, the party grieved may have a writ out of the Chancery, directed to the Sheriff of the County only, or to the Sheriff and justices of peace, or some of them, Sta. 2. E. 3. 3. upon the statute made at Northampton anno 2. Ed. 3. The form of which writ is this, viz. jacobus Dei gratia etc. vicecomiti Buck. Salutem; A writ upon the statute of Northampton. Quia datum est nobis intelligi, quod quamplures malefactores, & pacis nostrae perturbatores, in conventiculis congregati, armati, & modo guerrino arraiati apud Westburie accederunt, et clausuras, et domos quorundam legiorum nostrorum ibidem per vim & potentiam armati intraverunt, & res, redditus, & proventus, ac alia bona sua quaecunque de quibuscunque possessoribus suis ibidem provenientia capere consenserunt, & asportare intendunt, & ad hoc parant in nostri contemptum, ac quorundam de populo nostro ibidem terrorem & commotionem manifestam, ac contra formam statuti apud Northampton de armis contra pacem domini Edwardi nuper Regis Angliae tertij, progenitoris nostri, non portandis editi, & contra pacem nostram. Nos statutum praedictum inviolabiliter observari, & idem infringentes juxta vim & effectum eiusdem statuti castigari facere volentes, & puniri. Tibi praecipimus quod apud villam de Westbury, et alibi in comitatu tuo ubi necesse fuerit publice proclamari, & ex part nostra firmiter inhiberi facias, ne quis cuiuscunque status seu conditionis fuerit ibidem armatus contra pacem nostram, ac contra formam statuti praedicti accedat, nec armatam potentiam, nec quicquid aliud ibidem, seu alibi facere, per quod pax nostra, seu statutum praedict' laedi, vel populus noster turbari, terreri, aut indebité gravari poterit quovismodo sub poena amissionis armorum suorum, & incarcerationis corporum suorum ad voluntatem nostram, prout in statuto praedicto plenius continetur. Et omnes illos quos post & contra proclamationem et inhibitionem pndictam inveneris contraria facientes, vel per inquisitionem per te modo & forma debita capiendam inveneris fecisse, unà cum armis, & armaturis suis secum inventis, arrestari, & capi; & corpora ipsorum arrestatorum in prisona nostra, quousque aliud a nobis pro deliberatione sua habueritis in mandatis, saluò custodiri, et arma & armatur praedicta appreciari, & nobis inde responderi facias. Nos verò in Cancellaria nostra sub sigillo tuo, de nominibus arrestatorum praedictorum, & de armis, & armaturis suis, & quae & cuiusmodi fuerint, & de pretio, & de vero valour eorunden, ac de toto facto tuo in hac part reddatis distinctè & apertè sine dilatione certiores, hoc breve nobis remittentes. Teste etc. S. Manasse etc. 7. When the Sheriff or justice or justices of peace to whom the foresaid writ is directed, hath caused three proclamations to be made according to the purport of the said writ, than he or they may enter and make search in the house, houses, or place suspected, and search whether there be any force of armour or weapons worn, borne, or used against the said proclamation, or otherwise he is warranted by the said writ to inquire thereof by a jury. And if any such armour or weapons be found, he must imprison the offenders, and seize and praise their armour and weapons so found with them to the King's use. And if upon the proclamation they do departed in peaceable manner, than he hath no warrant by the writ to commit them to prison. But by this writ the Sheriff or justices have only authority to remove the force, but not to put the party expelled in possession again. What shallbe said to be force 29 Because I have written of force, forcible entry, and forcible detaining of possession, it is convenient that I should somewhat declare, what the law doth account to be force, and what acts, and in what manner done to be forcible. This forcible entry or forcible detaining of possession, which the statutes before rehearsed do prohibit, must be done with some weapons either offensive or defensive, as with swords, bucklers, pikes, iavelines, bills, clubs, pitchforkes, staves, halberds, bows & arrows, crossbows, guns, harness, casting of stones or blocks, pouring of hot coals, scalding water, or lead, or with any other thing wherewith one man may hurt the person of another. Force by number of servants. And further, if a man doth enter upon the possession of another, 10. H. 7. 11. or doth keep a possession taken with more servants or attendants, than he doth commonly maintain, it is force, and it shallbe adjudged in him a forcible entry, or a forcible detaining of possession. And so it is, if divers do come with bows, bills, guns, or other weapons to a ground, or to a house, and enter without the disturbance of any, this is an entry by force: for the words of the statute of 5. R. 2. be, Sta. 5. R. 2. 7 That none shall enter with multitude of people, but only in a peaceable manner. And in like sort, if a man do enter peaceably into a house, Force by number of weapons and after doth bring into the same more weapons than he and his ordinary family do commonly & usually wear (besides those weapons that he doth find in the house, whereof he must make no use to defend his possession) it is a forcible detaining of possession. And moreover, if complaint be made to a justice of peace, that one hath entered forcibly into a house, and doth detain the same with force, and the said justice of peace doth go thither, and findeth the doors shut, and him or those within denying him to enter, this is a detaining of possession with force, though there be no weapon showed or used, and though there be but one person within the house, for in this case the offendor doth use the door as his buckler to keep the possession. If the justice of peace do find in the house any great number of people, or any persons in harness, or having harness lying by them, this is a detainer with force. Wherefore in all the cases aforesaid the justice of peace may take the power of the County, break open the doors, & commit the offenders to prison. 11. Ass. p. 25 And if a man do mow, reap, shear, or sickle corn or grass (or by such other labour which cannot be done without the hands of man) whereunto he hath no title, this shallbe adjudged an entry & disseisin with force. If a man do keep his beasts by force in another man's several ground, 27. Ass. p. 30 claiming common therein, whereas he hath no common there, this is a disseisin of the land by force. 30. Ass. p. 50 And if a man do enter into the possession of another man's land, and after doth fell or lop wood there, this is a disseisin by force. If a man do enter into another man's house or land, 11. H. 4. 16. & disseise or expel him thereof, & after doth carry away certain goods of the disseisées, this is a disseisin with force & arms, and the disseisor shallbe imprisoned for it. 16. Assis. p. 7. 14. Ass. p. 18. 12. H. 4. 22. 22. Ass p. 33. 30 A woman covert may commit a disseisin with force, Who may commit a forcible entry. and be imprisoned therefore: and so may an infant of the age of 18. years or above commit a disseisin by force, & be imprisoned. But if he be of tender age, he shall not be adjudged a disseisor with force, nor be imprisoned. 31 Though force being opposed against the law, What force is lawful to the persons of men. is a professed enemy to the peace of the Realm, yet being used in the maintenance of the law, it is a principal protector of the same peace: for the law doth put the sword of justice into the king's hand to protect himself and every of his subjects from the violence and oppression of others, and to relieve each one that hath just cause of complaint, and thereby to yield him peace. Wherefore force is to be resembled to fire, which being abused, may consume the whole house, and being well guided is a mean to yield sustenance and comfort to every person therein. And so force may be lawfully used by all the king's Officers, Ministers, and Subjects thereunto deputed (with the help of all others to assist them when need shall require) to execute or advance justice, or the judgements of the Law. It is lawful force, whereby all offenders in Treason, Felony, & other great crimes, be apprehended, 7. E. 8. 16. carried to prison, brought to their answers, & receive condign punishments, inflicted upon them for their offences. It is lawful force, whereby the Sheriff, his undersheriff, Bailiffs, or Deputies do with strength apprehend any person by virtue of the king's writs, to answer or satisfy the purport of the same writs. St. 8. H. 6. 9 It is lawful force whereby justices of peace do remove those unlawful Entries, or unlawful detaining of possession which one man doth make into another man's land, contrary to the Laws and Statutes abovesaid, and whereby they do put him again in possession, who was wrongfully disseised or expelled thereof. And it is lawful force which justices of peace, Sheriffs, Coroners, Constables, Tithingmen, Headboroughes, Boroughholders, & all other charged and authorized to preserve the peace (together with their assistants, deputies, or assignees) shall use in apprehending or committing to prison such as do attempt to disturb or break the peace within their jurisdictions, or being commanded, will refuse to put in sufficient sureties for the keeping of the same peace. 32 As in the causes aforesaid force may be lawfully used to the persons of men, so in some other cases forces may be used, & forcible entries may be lawfully made into the lands and tenements of others. Where the house of a man may be broken by force, and where not. As for Treason, or Felony, or suspicion of Felony, one may by force break open a house, if the doors be shut, to apprehend the Felon: 13. E. 4. 9 For as a Felon is an enemy to the Commonwealth, so is it for the benefit of the Commonwealth to apprehend him: And the King as head of the Commonwealth hath interest in felony to punish it, and so a house doth not defend an entry to pursue and arrest one that hath committed felony, or is suspected thereof. As if one hath wounded a man, 7. E. 3. 16. whereby he is in peril of death, and the offendor doth fly into a house, the Constable or those that do pursue him, may break open the house to apprehend him, if the doors be shut. And in like sort, if a fray be made, or a quarrel be moved in a house, whereof the doors be shut, whereby the peace is broken, or like to be broken, the Sheriff, a justice of peace, or a Constable may by force break open the door of the house to appease that quarrel, or to take surety of the offenders to keep the peace. And if a man be outlawed of Treason or Felony, or in a personal action, whereby a Capias utlagatum is directed to the Sheriff to apprehend and take him, the Sheriff may break open the doors of the house, if they be shut, apprehend the same Outlaw, and commit him to prison. And if it be found by an inquisition before a justice of peace, that one hath entered into another man's house by force, or doth detain it by force after peaceable entry made, he may break open the house by force to reseise the same land, and to put the party so put out in possession again; and so may the Sheriff do, having the justices warrant. If a man be indicted of Trespass, and a Capias pro fine is awarded to the Sheriff to take him, 27. Ass. p. 35 the Sheriff may break open the house to take him, if the doors be shut. And in all cases where the king is party, the Sheriff may break the house of the party offending, Co. li. 5. 91. 13. Ed. 4. 9 or the house where he is, to apprehend him, or otherwise to execute the King's process, if the doors be not open, or that he cannot otherwise enter: for where the King hath interest, the writ or action is in the nature of a writ of Non omittas propter aliquam libertatem. But this is to be observed, that always before the Sheriff or other Officer doth break open the house or doors of any man, Fitz. Execution 252. he must signify the cause of his coming, and desire that the door may be opened unto him: for if there be no default in the owner, the law doth condemn the breaking of a house, which was provided for the dwelling and safety of men. And therefore in any of the cases aforesaid, if the Sheriff do break open the house, where some of the doors of the same be open, whereby he may enter, or that he may open the door by the key, or without breaking, he is a trespasser, and is chargeable therefore to the owner of the house in an action of Trespass. Sta. 3. E. 1. 17 13. Ed. 1. 38. If one man do distrain another man's cattle, and after do put them into a Castle, fortress, or other strong hold, house, or place, and then the owner of the cattle doth sue a Replevin directed to the Sheriff, to make delivery to him of the same cattle: then if the same Castle, fortress, House, or Hold, be not opened to the Sheriff upon his solemn request, when he cometh to make deliverance of the cattle, according to the purport of his writ, he may take the force and power of his County, and break down the same castle, fortress, or house etc. and make deliverance of the same cattle: for it would tend to the dishonour of the King & his Crown, that the Sheriff having the kings writ, should be resisted with force by any of his own subjects to execute the same, and to make deliverance of the cattle. When any house is recovered by one man against another in any real action, Co. lib. 5. 91 or by an Erection firmae, the Sheriff having the K. writ of Habere facias seisinam or possessionem, may break open the same house, if the doors be shut, to deliver seisin or possession to the demandant or plaintiff: for after judgement the house in right & by the censure of the law is none of the tenants or defendants. But it is not lawful for the Sheriff at the suit of any common person to break the house of the defendant in the same suit, to execute process (though he do make request and be denied it) for thereupon might ensue great inconvenience, 18. E. 4. 4. that upon colour of any feigned suit, a man should have his house (being his castle of defence) broken by day or by night, by any undersheriff or Bailiff, being many times of small ability. And therefore if in that case the Sheriff break any man's house to make execution of any process at the suit of a common person, he is a trespasser to the owner of the same house, who may have an action of Trespass against him therefore, as against any other person, and shall recover his damages. But notwithstanding, the execution, which the said Sheriff shall then and there make, is good. And yet the house of a man is a castle, and place of privilege, but for himself, his wife, Co. li. 5. 93 servants, and ordinary resiants, and for his own goods: for it will not protect any other man which will fly into his house, or the goods of any other person which shallbe brought into his house, to prevent lawful execution, and to escape the ordinary process of the law. And therefore in any of those cases, if the Sheriff having process to do execution upon the body or goods of a man, do make request to have the door opened, or to have the body of the party flying thither, or the goods of another brought thither, to be delivered unto him, and it be denied him, or that it be not done, the Sheriff may break the house, and execute the process. 33 As force is to be used lawfully, where it is for the benefit of the king, or to avail the Commonwealth: so every man being of himself a little world, & his family a small Commonwealth, & he the head thereof, may in divers cases defend the same Commonwealth by force. Cok. lib. 5. 91. 26. Ass. p. 23 & 32. Fitz. Cor. 303. 305. 22. Assize p. 55. St. 24. H. 8. 5 21. H. 7. 39 As, In what cases any p●rson may de●end himself and his by force. if thieves or robbers do come to a man's house, to rob or murder him, he may defend his house by force, and if he or his servants do kill any of them, they shall receive no hurt thereby. And if a man being in his house, do hear that another will come to his house to beat him, he may lawfully assemble his neighbours and friends, to assist and aid him in the defence of his person: for his house is his castle, and place of protection & defence, where he must dwell. But if a man be threatened, ●hat if he come to such a Market or Fair, or to such a place, that then he shall be beaten, in this case he may not assemble his neighbours and friends to go thither, in safeguard of his person, for there is no necessity that he should go thither, seeing it would rather be a mean to seek a quarrel, then to eschew it: but in that case he may take his remedy by surety of peace. 16. Ed. 4. 17. 9 E. 4. 28. 19 H. 6. 31. 6. H. 7. 1. And if there be an attempt made to mayhem, wound, or beat a man, his wife, father, mother, or any of his children within age, or to disseise him of his land, or to dispossess him of his goods, or to disturb him of his high way, or to turn an ancient watercourse from his mill, he may lawfully use force to resist it. 34 As the law hath provided by the before rehearsed statute of 15. R. 2. St. 15. R. 2. 2. that when any forcible entry shallbe made into any benefices or offices of the church, a justice of peace shall take the power of the county, and commit the offenders to the jail: So hath it further devised, that if there be debate between two persons for one church, and one of them doth enter into the church with a great power of lay men, and holdeth out the other by force and arms, than he which is holden out, The writ of Vi laica removenda to remove force. shall have a writ of Vi laica removenda directed to the Sheriff, commanding him that he shall remove the power which is within the church: and the sheriff shallbe further commanded, that if he do find any that do resist, he shall take with him the power of the county, and attach the bodies of all the resisters, and commit them to prison, so that he may have their bodies before the King at a certain day to answer for their contempt. Fitz. Na. B. 55. But by this writ the Sheriff ought not to remove the Incumbent, who is in possession of the church, be he in possession by right or wrong, but only to remove the force, and to suffer the Incumbent to enjoy his possession, for if he do remove the Incumbent, the same Incumbent shall have a writ to the Sheriff, to restore him to it again. Where force shall be removed for the K. incumbent, where not. 35 If the King do bring a Quare impedit against the disturber and the Incumbent, and the King's title is found for him, Br. force 20 whereupon his clerk is instituted by writ, and after the first Incumbent doth enter by force, & great number of people, and doth take the profits, the King's Incumbent shall not have the Kings writ to the Sheriff to remove the force, for that when the judgement given by the court is executed, the court hath no more power to deal in that cause. But if the defendant had disturbed the Bishop to admit the King's Incumbent, than he should have had such a writ. ❧ Forgery. 1 Having undertaken to write of the great and general maladies of the Realm, and the chief impediments of the justice and peace of the kingdom, I shall not far digress from my theme, by treating of Forgery, Perjury, Maintenance, Deceit, Extortion, and Oppression, wherein though a man be not assaulted by the rapier and dagger, pikestaff, or bilbow-blade, as he is in a fray, forcible entry, or riot, yet a forged deed that conveyeth his land from him, a false oath which depriveth him of his lease, or unlawful maintenance that wresteth his credit or goods from him, do longer disturb the peace of his mind, stick in his stomach, and infixeth a deeper and more durable impression of sorrow into his heart, than a box on the ear, a dust in the neck, or a blow with a cudgel given on the sudden, will do: For the grief of these later stripes is short, and do wear out of man's mind by little and little, as his choler ceaseth, and his hot blood cooleth: but the discontent, and the wants which he receiveth of the former blows, do continue with him, and yield him most dislike, when he is most patiented, and best advised. And therefore the wisdom of this Realm hath from age to age taken great care by laws and statutes, to repress them, and to inflict upon the offenders in every of them, penalties correspondent to their deserts. Our laws do chastise those that break the peace by frays, assaults, batteries, riots, or routs, with imprisonment of their bodies, until their hot bloods be cooled, and their distemperate humours be qualified: but they do impose sharper and more durable punishments upon such as do forge deeds, commit or procure perjury, Forgery, perjury, & maintenance, do ten 5 to the breach of the peace. or be maintainers of other men's suits, or quarrels; accounting these last offences to tend more and for a longer time to the breach or blemish of the peace, or hindrance of the justice of the Realm, than the former do: As he that committeth forgery in some cases, shall be set upon the pillory, lose his ears, have his nostrils slit, and pay to the party grieved his double costs and damages: And in some other cases, shall be hanged as a fellow: He that committeth perjury, shall in some cases be one year imprisoned, be set upon the pillory, and never after be allowed as a witness: And he that maintaineth other men's suits, shall in some cases be three years imprisoned, and further punished at the king's pleasure: And in some other cases sustain other disgraces. And therefore the preamble of the statute of anno 1. St. 1. H. 5. 3. H. 5. doth truly inform us, that forged deeds do trouble and change the lands of good people, intending to be in peace. And the statute of anno 32. St. 32. H. 8. 9 H. 8. doth teach us, that the suborning of witness for to maintain any matter or cause, is to the disturbance or hindrance of justice. The enormity of Forgery. 2 The forging of false sealed Deeds, Evidences, or Writings, or of Court Rolls, or of the will of any person, or of any Obligation, Bill obligatory, Release, or other discharge, or the pronouncing, publishing, or giving in evidence of the same, whereby any person shallbe molested, troubled, charged, or defeated of his land, lease, annuity, debt, account, action, suit, or demand, is no less perilous and prejudicial to the party thereby wronged (if it be not discovered, prevented, or avoided) then the wresting and evicting from him of the same land, lease, annuity, debt, or demand. And the offenders therein do as injuriously, and with as small colour of justice, wrist from the party grieved his said land, lease, annuity, debt, etc. as the robber doth take a purse from the traveler by the way, or the burglarer his intended prey from the houskéeper in the night. And if those real duties or things in action, were converted into things personal, the undue conveying of them in this unlawful manner, would deserve to be accounted and punished amongst other felonies; as in some sort it is ordained so to be by the statute of anno 5. Eliz. St. 5. El. 14. And because divers persons did forge false deeds and miniments, and did cause them to be openly pronounced, published, and read, to trouble, change, or undo the lands of other persons, and to undo and trouble the possessions and titles of the king's people: therefore by a statute made anno 1. H. 5. it was ordained, St. 1. H. 5. 3. that the party grieved thereby, shall have his suit in that case, and recover his damages, and the party convict shall make fine and ransom at the king's pleasure. But forasmuch as the wicked and dangerous practice of making, forging, and publishing of false and untrue deeds and writings, was much more practised and put in ure, in all the parts of this Realm, than in times past it had been, to the disherison of divers persons, and the great subversion of justice, which hath grown chiefly by that the pains and punishments limited for such great offences, by the laws and statutes of this Realm, before time were so small and easy, that such evil people were not afraid to enterprise the practising and doing of such offences: The repeal of former statutes of Forgery. Therefore by a statute made anno 5. St. 5. El. 14. El. it was enacted, That all other statutes before that time made and provided for forger of false deeds, charters, miniments, or writings, and all and every penalty appointed for the same, should from the first day of june than next following, be void. Forging of a deed, whereby another's freehold shallbe troubled. 3 To the intent that condign, or some sharper punishment might be ordained for such as should be offenders in that crime of forgery, than in time past had been, by the said statute of anno 5. Elizab. it was established, St. 5. El. 14 That if any person or persons after the first day of june than next following, upon his or their own head and imagination, or by false conspiracy and fraud with others, shall wittingly, subtly, and falsely, forge, or make, or subtly cause, or wittingly assent to be forged or made, any false deed, charter, or writing sealed, court roll, or the will of any person or persons in writing, to the intent that the estate of freehold or inheritance of any person or persons, of, in, or to any lands, tenements, or hereditaments, freehold or copyhold, or the the right, title, or interest of any person or persons, of, in, or to the same, or any of them, shall or may be molested, troubled, defeated, recovered, or charged: Or shall pronounce, Publishing of a forged deed. publish, or show forth in evidence, any such false and forged deed, charter, writing, court roll, or will, as true, knowing the same to be false and forged, as is aforesaid, to the intent above remembered, and shall be thereof convicted, either upon any action or actions of Forger of false deeds, to be founded upon this statute, at the suit of the party grieved, or otherwise according to the order and course of the laws of this Raalme, or upon Bill or Information to be exhibited into the Court of Star chamber, according to the order and use of the Court, he shall pay unto the party grieved his double costs and damages, to be found or assessed in the Court where such conviction shall be, and also shall be set upon the Pillory in some open market town, or other open place, and there to have both his ears cut off, and also his nostrils to be flit, and cut, and seared, so as they may remain for a perpetual note or mark of his falsehood, and shall forfeit to the Queen her heirs and successors, the whole issues and profits of his lands and tenements during his life, and shall suffer and have perpetual imprisonment during his life. The same damages and costs to be recovered at the suit of the party grieved, as is aforesaid, to be first paid, and be levied of the goods and cattles of the offenders, and of the issues and profits of the said lands, tenements, and hereditaments of such party convicted, or of one, or both of them, the said title of the Queen, her heirs and successors to the same notwithstanding. Stat. 5. El. 14 4 If any person or persons after the said first day of june next, Forging a deed, whereby a lease or annuity may be claimed. upon his or their own imagination, or by false conspiracy, or fraud, had with any other, shall wittingly, subtly, and falsely, forge or make, or wittingly, subtly, or falsely, cause or assent to be made and forged, any false Charter, Deed, or Writing, to the intent that any person or persons shall or may have or claim any estate or interest, for term of years, of, in, or to any manours, Lands, Tenements, or Hereditaments (not being Copyhold) or any Annuity in Fee simple, Fee tail, for term of life, lives, or years: Or shall, as is aforesaid, forge, make, or cause or assent to be made or forged any Obligation, or Bill obligatory, or any Acquittance, Release, or other discharge of any Debt, Account, Action, Suit, Demand, or other thing personal: Or shall pronounce, publish, or give in evidence, such false or forged Charter-Déed, Writing, Obligation, or Bill obligatory, or any Acquittance, Release, or discharge, as true, knowing the same to be false and forged, and shall be thereof convict by any of the ways or means aforesaid: Then he shall pay to the party grieved his double costs and damages, to be found and assessed in such Court where the said conviction shall be had, and also shall be set upon the Pillory in some open Market Town, or other open place, and there have one of his ears cut off, and also shall suffer imprisonment by the space of one whole year, without bail or mainprize. Stat. 5. El. 14 5 The party and parties grieved by reason of any the offences aforesaid, Several remedies for the party grieved. shall and may at his and their pleasure have and sue his action of forger of false deeds, upon this Statute against any of the offenders in the same, by original writ out of the Chancery, and shall have like Process upon the same, as in cases of trespass at the common law; Or may at his pleasure take his suit against any such offenders in any the premises by Bill in the kings Bench, or in the Exchequer: In which suits no essoin, Injunction, or Protection shall be allowed for the party Defendant. Not twice impeached for one offence. 6 If the Defendant shall be convict for any of the offences aforesaid, St. 5. Eli. 14. according to the order and form above limited, and shall have received thereupon punishment corporal according to this Act, than he shall not eftsoons be impeached for the same offence. The plaintiffs release shall only discharge his own remedy. 7 Although the party or party's plaintiff in any such Action, St. 5. Eli. 14. or Bill to be sued as is aforesaid, shall after verdict passed against the Defendant, or Defendants, happen to release or discharge the judgement or execution upon the same, or otherwise suffer the same to be discontinued: yet nevertheless the same release, discharge, or discontinuance, shall extend only to discharge such costs and damages as the same plaintiff should have had against the defendant; And the judges before whom the said action or suit shall be taken, shall and may prrcéede to judgement of and upon the residue of the said penalties, and forfeitures, and command execution upon the same, the said release, discontinuance, or other discharge had, made, done, or suffered by the party plaintiff in any wise notwithstanding. 8 If any person or persons being hereafter convicted, St. 5. Eli. 14. or condemned of any of the offences aforesaid, by any of the ways or means above limited, shall after any such his or their conviction or condemnation eftsoons commit or perpetrate any of the said offences in form aforesaid: The punishment for the second offence. Then every such second offence or offences shall be adjudged felony, and the parties being convicted or attainted according to the laws of this Realm, shall suffer pains of death, loss and forfeiture of their goods, cattles, lands, and Tenements, as in cases of felony by the common laws of this Realm ought to be lost or forfeited, The right of others saved. without having any advantage or benefit of Clergy or Sanctuary: Saving to every person and persons, body politic and corporate, their heirs and successors (other than the said offenders, and such as claim to their uses) all such rights, titles, interests, possessions, liberties of distresses, leases, rents, reversions, offices, and other profits and advantages, which they or any of them shall have at the time of such conviction, or attainder, of, in, or to any the lands, tenements, or hereditaments of any such person, so as is aforesaid convicted or attainted, or at any time before, in as large & ample manner, to all intents and purposes, as if this Act had never been made. Provided always, that any such conviction or attainder of felony as is aforesaid, No forfeiture of Dower or corruption of blood. or any forfeiture by reason of the same, shall not in any wise extend to take away the dower of the wife of any such person attainted, nor to the corruption of blood, or disherison of any the heir or heirs of any such person or persons so attainted: This Act or any thing therein contained, or any other statute, law, or custom notwithstanding. 9 All and every justices of Oire and Determiner, St. 5. Eli. 14 and justices of Assize justices of Oire and Determiner and justices of Assize. in their circuits, and every of them shall have full power and authority in every of their open and general Sessions, to inquire, hear, and determine of all and every of the offences aforesaid, committed or done within the limits of their Commission, and to make Process for the execution of the same, as they may do against any person being indicted before them of Trespass, or lawfully convicted thereof. Stat. 5. El. 14 10 If any person or persons whatsoever hath of his or their own head, Forging of deeds before the statute. or by false conspiracy or fraud with any other, wittingly, subtly, and falsely, forged or made, or shall before the first day of june next coming, forge and make any false deed, charter, or writing sealed, or the will of any person in writing, or any court roll, to the intent that the estate of Freehold or inheritance, or the right, title, or interest of inheritance or freehold of any persons, of, in, or to any Manors, lands, tenements, or hereditaments, being freehold or copyhold: Or that by any such forged deed, charter, court roll, or writing, before the said first day of june, shall or may be molested, troubled, or defeated of any of the said estates of any lands, tenements, or hereditaments being freehold or Copyhold: Or if any person or persons have heretofore published or showed forth in evidence, or before the said first day of june shall publish or show in evidence, for the proof of any title, any false and forged deed, charter, writing, will, or Court Roll, as true, knowing the same to be false and forged as aforesaid, to the intent above remembered, and shall be thereof attainted or convicted according to the order of the law, either in an Action of forger of false faits, or in an Action upon the case, at the suit of the party grieved, his heirs, executors or assigns: Then the party so convicted shall yield and pay damages, and costs of suit to the plaintiff, as shall be assessed according to the law of the Realm, in any such like Action or suit, and shall suffer imprisonment, and pay fine and ransom at the pleasure of the Queen, her heirs, or Successors. Pleading a forged deed made before the statute. And if any person or persons shall after the said first day of june next coming, plead, publish, or show forth in evidence, or otherwise for the proof of any title, any false and forged deed, charter, writing, will, or Court Roll heretofore falsely made and forged, or to be falsely made and forged before the said first day of june as true, knowing the same to be false and forged, to the intent to have or claim thereby any estate of inheritance, freehold, or lease of years, in, or to any manors, lands, tenements, or hereditaments, or any annuity, rent, or profit forth of any manors, lands, tenements, or hereditaments: Or to the intent to alter, defeat, molest, trouble, charge, or recover the estate of inheritance, freehold, or lease for years of any person, in any manors, lands, tenements, rents, or hereditaments: Then every person and persons that so shall offend, and shall be thereof convicted in form first above remembered, shall pay unto the party grieved double costs and damages, and shall have imprisonment, loss of Ears, slitting and searing of Nose, and forfeiture of lands in the same manner and form as above is limited for any person that shall offend by forging or publishing of any false deed, or writing, as aforesaid, after the said first day of june. Stat. 5. El. 14 11 This Act or any thing therein contained, Persons not chargeable by this statute. shall not extend to charge any Ordinary, or any their Commissaries, Officials, Registers, or any other their Officers, or Ministers, with any the offences aforesaid, for putting their seal of office to any will to be exhibited unto them, not knowing the same to be false or forged: or for writing of the said will, or probate of the same. Neither shall this Act or any thing therein contained, extend or be hurtful to any Proctor, Advocate, or Register of any Ecclesiastical Court within this realm, for the writing, setting forth, or pleading of any Proxy made according to the Ecclesiastical laws or customs heretofore allowed and used by the Ecclesiastical Courts of this Realm, for the appearance of any person or persons, being cited to appear in any of the said Courts Ecclesiastical: Official. Nor to any Archdeacon, or official, for putting their authentic seal to the said proxies, or proxy: Nor yet to any judge Ecclesiastical, for admitting of the same: but they and every of them may hereafter do in all points concerning the same, as they and every of them might lawfully have done before the making of this Act. Neither shall this Act extend to any Attorney, Attorney. Lawyer, or Counsellor, Counsellor. that shall for his client plead, show forth, or give in evidence, any false and forged deed, charter, will, court roll, or other writing, for true, being not party nor privy to the forging of the same, for the pleading, showing forth, or giving in evidence of the same. Neither shall this Act extend to any person or persons, Exemplification. that shall plead or show forth any deed or writing exemplified under the great Seal of England, or under the great seal of any other authentic Court of this Realm. A judge. A justice. Nor shall extend to any judge or justice, or other person that shall cause any seal of any Court to be set to any such deed, charter, or writing enrolled, not knowing the same to be false and forged: Any thing in this Act to the contrary notwithstanding. Forging of a customary book. 12 If one or more tenants of a Manor, 15. Eliz. Dy. 322. wherein there be several Copiholders, do make a customary book or roll of the same Manor, in parchment, or paper, and do insert therein divers customs, whereof some be false, and do set his or their own seals thereunto, and the seals of some other Copiholders of the same Manor, and the same customary book or roll is entitled and pretended to be collected, renewed, set forth and allowed by the Lord, and all the Freeholders and Copiholders of the said Manor, where in truth it is set forth and made without the privity or consent of the Lord of the same Manor, or of the residue of the Copiholders thereof: This is a forgery, and false making of a writing sealed, to the intent to benefit themselves, and to disinherit the Lord of the Manor, and therefore punishable by the open and shameful punishment contained in the foresaid Statute of 5. Elizab. The process to levy costs and damages of a forger. 13 Whereas the said Statute of 5. Elizabeth. hath ordained, 15. Eliz. Dyer 323. That if any person shall be convicted of forging of a false deed upon a bill, or information to be exhibited into the Court of the Star chamber, according to the order and use of the Court, he shall pay unto the party grieved his double costs and damages, to be assessed in the same Court: Therefore when any man is attainted of Forgery in the Star chamber, for the recovery of the double costs and damages taxed by the Court, a writ in English shall be made, and directed to the Sheriff of the County where the offendor doth dwell, reciting the Statute, and the conviction, commanding the Sheriff to levy the said costs and damages of the goods, cattles, and profits of the lands and tenements of the offendor, and to bring the money into the Star chamber: Which writ shall be sealed with the great Seal, and under the Teste of the King. And there by the order of the Court the money shall be delivered to the party grieved. The kings pardon of forgery. 14 If a man be attainted of Forgery in the Star Chamber, 15. Eliz. Dyer 323. Co. li. 5. 50. or in an action of Forger of false deeds, founded upon the said statute of 5. Eliz. the king may pardon his corporal punishment of setting upon the pillory, flitting his nostrils, and perpetual imprisonment, viz. so much of the penalty of the said statute, as is to be inflicted for a terror or example to his people, for that he only hath interest therein, as he hath in the issues and profits of the said offenders lands. And as he may pardon the second offence of him, who being once convicted of forgery, doth eftsoons commit the same again, and thereby doth become a fellow: And as the plaintiffs release, discharge, or discontinuance, by the words of the said statute, shall discharge the defendants judgement or execution touching such costs and damages, as the plaintiff should have had against the defendant: So may the kings pardon discharge the same defendant of any penalty or forfeiture, that the same statute doth give unto him, which be the corporal punishments, and the issues and profits of the defendants lands. 23. El. Dy. 302. 15 Whereas the said Statute of 5. Elizab. hath ordained, Forging of Testament. That if any shall forge the will of any person in writing, to the intent etc. That then he shall be punished as is aforesaid: Yet if one do forge the Testament of another person, whereby any lease for years shall be conveyed, he is within the danger and penalty of the said statute, though no mention be made in the statute of a Testament, and he shall be charged only in respect that he hath forged a writing sealed. But of a will concerning freehold, or inheritance, there is special mention made in the same statute. 12. Eliz. Dyer 288. 16 If a Clerk do write the will of another man which is deadly sick (and after the Testator is become speechless, Inserting more in a will than is directed. and past memory) doth insert some article or clause in the same will, which the Testator did not direct him to do, yet this is no forgery punishable by the said statute of 5. El. nor within the meaning of the makers of the same: For the principal deed or writing, which was the will of the Testator, was not forged, neither was any false deed, charter, writing, or will, though the article or clause inserted therein, having no sufficient warrant, was false, and therefore not the Testators will, nor part thereof, nor to be proved therewith. 17 And though the said statute of 5. Eliz. doth repeal as well the before mentioned statute of 1. H. 5. and all other statutes before that time made and provided for forging of false deeds, Lib. in't. fol. 359. and hath ordained a new action of forger of false deeds, to be founded upon that Statute, and other new remedies, yet seeing both those statutes were made and provided to one end, viz. to avoid and punish the enormities of forgery of false deeds, to the disherison or hurt of others, though upon several penalties: Notwithstanding in some cases the like reason, and so the same law is to be retained in the said statute of 5. Elizab. which was before in the first mentioned statute of 1. H. 5. As in action of Forger of false deeds, 9 H. 6. 26. 20. H. 6. 11. 19 H. 6. 29. 21. H. 7. 15. 37. H. 6. 37. brought upon the said statute of 1. H. 5. Pleas in bar of forgery. it is a good plea in bar, for the defendant to plead not guilty, or that he did not forge that deed, or to plead, that he gave to the plaintiff a gallon of wine in satisfaction of the said offence, which he did accept. And so it is a good plea in bar, in an action of forger of false deeds, brought upon the statute of 5. Elizab. and the same plea being confessed by the plaintiff, or found by verdict, shall not only bar the plaintiff of the recovery of his double costs and damages, but shall also discharge the defendant of all corporal punishments to be inflicted, and of the forfeiture of the issues and profits of his land to the king. For this is not a release or discharge after verdict, but a discharge before verdict, whereby the whole Action and suit is discharged, and so not within the compass of the said statute of 5. Eliz. 14. touching the plaintiffs release or discharge after verdict. Where one shall have an Action of forgery, though he hath but a right to the land. 18 There be some cases where a man shall have an Action of forger of false deeds, though he hath neither possession, reversion, or remainder, but only a title to the land. As if a man die seized of certain land, and a stranger doth abate, and enter upon the same land before the entry of the heir, and holdeth out the heir, and after the same abator doth forge some charter, deed, or other writing sealed of the same land, to the intent to disturb, trouble, or defeat the estate of the heir in the same, in this case the heir may have an Action of forger of false deeds against the same stranger, though he hath then no possession, reversion, or remainder in the same land. And so it is, 4. H. 6. 25. 22. H. 6. 15. 15. Ed. 4. 24. if one man do disseise another man of land, and after doth forge false deeds etc. of the same land, to the intent aforesaid, the dissesee may maintain an Action of forger of false deeds against the disseisor upon the Statute of 5. Elizab. as he might have done before upon the Statute of 1. H. 5. for that his right and title to the same land is molested, troubled, defeated, recovered, or charged by the same forged deed. And the same law is, if a man do bring a real Action against an other of certain land, 9 Ed. 4. 37. and before judgement one claiming a lease for the term of years of the same land, prayeth to be received to save his term according to the Statute of Gloucester, and doth show his said lease, which lease is forged: Stat. 6. Ed. 1 11. In this case the Demandant in the said Action may have a writ of forger of false deeds, against him that claimeth the said term, though he hath as yet nothing in possession, reversion, or remainder in the same land, but only a right, for this lease is forged to ●he intent to defeat him of his right, viz. of his present possession. 19 If a man hath neither possession, reversion, remainder, or title, of, in, or to land, Where no Title no Action of forgery. and yet will bring against another an Action of forger of false deeds of the same land, it is a good plea in bar for the defendant to plead, 21. H. 6. 51. 8. H. 6. 34. that he himself is seized of the same land, without that the plaintiff hath any thing therein: for if the plaintiff hath nothing in the freehold, or inheritance of the land, nor any estate for years, copyhold or annuity in the same, than he cannot be the party grieved in that Action, neither his right, title, or interest, of, in, or to the same can be molested, troubled, or defeated, recovered or charged. And the same law is, if a man hath in land no mediate or immediate estate expectant upon any lease or leases for life, lives, or years, nor profit, right of entry, but only a possibility: 33. H. 6. 22. As if A. do give land to B. and the heirs of his body lawfully begotten, the remainder thereof to C. and his heirs for ever: If E. do forge a deed containing that A. gave same land to the said B. and the heirs of his body lawfully begotten, the remainder thereof to him the said E. and his heirs for ever: In this case C. cannot pursue an Action of forger of false deeds against E. during the lives of B. or of any of the heirs of his body lawfully begotten, for the said forgery, seeing that during the said time, his right, title, or interest into that land is not molested, troubled, defeated, recovered, No Action in respect of a possibility. or charged, for that he hath therein during that time but only a possibility, which possibility it may be shall never come into Esse. And further, C. cannot for the said forgery recover double costs and damages according to the said Statute of 5. Eli. for that he is not as yet a party grieved, nor damnified, nor hath sustained any damages, neither peradventure ever shall, if B. and his heirs do continue from one generation to another, and not die without issue of their bodies, etc. And of a bare possibility no value can be made, neither single or double damages assessed. 18. H. 6. 5. 9 H. 6. 26. Kel. fol. 114 20 If there be two joint-tenants, or tenants in common of land, and a stranger doth forge a deed concerning the same land: Forging of a deed touching jointenants land. if one of those joint-tenants, or tenants in common do bring an Action of forger of false deeds against the offender, and the Defendant do plead that another hath an estate in joyntenancie, or in common with the plaintiff who is in full life, this writ shall abate: for seeing this Action is but in the nature of an Action of Trespass, wherein the plaintiffs are only to recover damages, joint-tenants and tenants in common must join in the same Action, for though their right in the land be several, yet their possession touching the profit thereof is joint. And this Action is founded upon the possession. And whereas both the Statute of 1. H. 5. and 5. Eliz. do ordain that the party and parties grieved, shall and may at his and their pleasure, have and sue this Action of forger of false deeds, in this case both the joint-tenants and tenants in common be the parties grieved, for that their land is molested, troubled, recovered or charged by this forged deed. Fitzh. Forger. 5. But if there be two joint-tenants or tenants in common of certain land, and one of them doth forge a false Release, or other Deed, whereby the whole land is intended to be conveyed to himself, in this case the other joint-tenant or, etc. may have an Action of forger of false deeds against his said jointenant or, etc. for that forged and false deed was made, to the intent that the right or title of the forgers companion in estate should be molested, troubled, defeated, or recovered. And in this case he is the party grieved, to whose only disherison the said forgery doth trench. 21. H. 6. 4. 21 In an Action of forger of false deeds, One sealeth a deed by an others commandment. the Defendant pleaded that the Plaintiff being seized of certain land, did covenant with a stranger to enfeoff him of the same land, whereupon the same stranger came to the defendant being a Clerk, and requested him to make a deed of feoffment of the same land, which he did: and after by the plaintiffs commandment he sealed the same deed, and after did read the deed at the time of the livery and seisin, which is the same forgery, and proclamation: and that was adjudged a good Plea: for when the defendant sealed the feoffment by the plaintiffs commandment, and in his presence, it was the plaintiffs own act and deed, and his own sealing, and not the defendants: for the plaintiff did use the defendants hand but as his instrument therein: as men unlearned do use an other man's hand to help or direct them, to subscribe their names to a Deed. 9 H. 6. 26. 7. H. 6. 34. 22 If the father do forge a deed, and after dieth, One forgeth and another doth publish. and then his son doth find the same deed, and doth pronounce, publish, or show forth in evidence the same deed, knowing the same to be false and forged, to the intent the estate of freehold or inheritance of any person of, in, or to any lands, etc. should be molested, troubled, defeated, or recovered: this is forgery in the son, and he shall be punished according to the foresaid Stat. of 5. El. And the same law is if one man do forge a deed, or etc. and an other man knowing thereof shall publish it, to any of the intents aforesaid: this is forgery prohibited by the same statute: for the same stat. of 5. Eliz. is in the disjunctive, viz. if any person shall forge or publish. Forgery by antedating of a deed 23 If a man do make a feoffment to one person of certain land, 27. H. 6. 3. and doth deliver possession thereof accordingly, and after he doth make a feoffment to another person of the same land, bearing date before the first feoffment, but doth not deliver it, this last feoffment is not the feoffors' deed: But yet if he do publish it to be his deed, the first feoffée may have an action of forger of false deeds against him: for when he had made the first feoffment of the land, he then had nothing left in him of the same land. And therefore when he made the second antedated deed of that land, it was a false and forged deed, and then after publishing, pronouncing, or showing it forth to be his deed, it was with intent to molest, trouble, defeat, recover, or charge the land of the first and lawful feoffée, and so he is punishable according to the foresaid stat. of 5. El. as he was before by the stat. of 1. H. 5. 24 Though the foresaid two statutes of 1. H. 5. and 5. Eliz. were ordained to punish those who should forge any false deed, or etc. to the intent, to molest, trouble, charge, or recover the right or title of any person in his lands, tenements, or hereditaments, or to the intent that any person should claim any lease for years, or annuity, or should forge any Obligation, Bill obligatory, Release, Acquittance, or other discharge of any debt, account, action suit, demand, or other thing personal: yet was there no provision in either of them to punish those who should get into their hands any money, goods, cattles, jewels, or things of any other persons, by colour of a false token, or forged or counterfeit letter: for the redress whereof by a statute made anno 33. H. 8. St. 33. H. 8. 1 it was enacted, That if any person or persons, of what estate or degree soever he or they be, Getting of other men's goods by counterfeit tokens or letters. shall falsely and deceitfully obtain or get into his or their hands or possession, any money, goods, cattles, jewels, or other things, of any other person or persons, by colour or means of any false token, or counterfeit letter, made in another man's name, that then every such person & persons so offending, & being thereof lawfully convict by witnesses taken before the L. Chancellor of England for the time being, or by examination of witnesses, or confession taken in the Star chamber before the K. honourable Counsel, or before the Iust. of Assize in their circuits for the time being, or before the Iust. of peace within any part of the K. dominions, in their general Sessions, or by action in any of the K. courts of record, shall have & suffer such correction, & punishment by imprisonment of his body, setting upon the pillory or otherwise, by any corporal pain (except pain of death) as shallbe unto him or them limited, adjudged, or appointed by the person and persons before whom he shallbe so convicted of the said offences, or any of them. Suspected persons called before the justices. 25 As well the Iust. of Assize for the time being, as also ij. St. 33. H. 8. 1 Iust. of peace in every county, whereof one to be of the Quorum, shall have power & authority, to call and convent by process, & otherwise, to the said Assizes or general sessions any person or persons, being suspected of any of the aforesaid offences, & to commit him or them toward, or to let him or them to bail until the next Assizes or general sessions, there to be examined, and further to be ordered by their discretions, as is abovesaid: Provided always, that the justices of peace within every City, Borough, Town, and Franchise within this Realm, or other the king's dominions, shall have like jurisdiction, power and authority, at their general Sessions, and otherwise, to do and execute all and every thing and things in all points, as other justices of Assize in their circuits, or justices of peace in the Counties, by virtue of this Act be limited and appointed to do and execute for the punishment and correction of like offenders, as beforesaid is limited. Saving to the party grieved by such deceit, such remedy, by way of action, The remedy of the party grieved. or otherwise, of & for the same money, goods, cattles, jewels, or other things so obtained, as he might have had, if this Act had never been made. Any thing in this Act etc. notwithstanding. 26 Forgery of writings hath been always so hateful in this realm, that our lawmakers have pursued the practisers thereof with sharp and bitter punishment, though in some cases the same was not put in use to molest or evict any man of his land, lease, annuity, debt, account, action, suit, or other demand, nor to get into his hands any others goods, cattles, or jewels, 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) shall departed out of one city, town, or parish, into another, nor out of the Lathe, Rape, Wapentake, or Hundred, nor out of the County or Shire where he last served, to serve in another City, Town, Forging of a testimonial. etc. unless he have a Testimonial of the said City or town corporat from whence he departed, or of the Constable or other officer, etc. And if any such person shall be taken with any counterfeit or forged testimonial, than he shallbe whipped as a vagabond. ❧ Perjury, Subornation of witnesses. Truth tried by the oaths of men. 1 THe Law of the Realm desirous to try out truth in all causes called in question before her, to the end she might proceed in judgement, and execute justice accordingly, hath in all ages proved it to be the best means to search out this truth by the oaths of honest, lawful, and indifferent persons: intending that the man who doth profess God to be his Creator, Redeemer, and Sanctifier, and hopeth to be saved by his blood, when he doth come in the presence of that God, and his people, and doth advisely swear, that he will declare the truth, 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 eternal salvation in the life to come) is void of all partiality and private affection, in all respects to be credited, and will tell the whole truth, and nothing but the truth. And therefore an oath is aptly termed Sacramentum, a holy band, or sacred tie, or godly vow: The credit of an oath. some do call it firmamentum veritatis, the foundation & ground of truth; and some other, vinculum pacis, a mean of the knot or link of peace. And if it be taken and found by a whole jury, consisting upon twelve persons or above, it is called veredictum, viz. a presentment of truth. And others do hold it a ceremony instituted by God, wherein himself is a party, and therefore he will see it verified, or sharply punished. We know, that the proof of most of our acts, deeds, and writings, do depend upon the oaths of others, and whatsoever men do for their own particular account most certain, is altogether in most cases uncertain, unless it may be justified by the oaths of others. As if one do commit murder, rape, burglary, robbery, or other offence whatsoever, and it be denied and cannot be proved by the oath of some other, the offendor shall escape unpunished for it. And likewise if a man do buy land of another, if the feoffor do make him a deed of feoffment thereof, do seal and deliver it, and give him possession, and after will deny it, unless it can be proved by the oath of some other, the feoffée shall lose his land and money. And so it is of leases, annuities, releases, acquittances, obligations, bargains, contracts, covenants, promises, offences, entries, disseisins, and other matters in fait, if they be denied, traversed, and called in question, the proof and validity of them doth depend wholly upon the oaths and testimony of others. And there is no case so plain, which cometh in question between party and party, but one of the parties to the suit may plead such a plea as shall come to be tried by the oaths of others. 2 Therefore as the Law doth reverently respect the oaths of men, What sorts of persons are to be deposed. taketh her intelligence of matters in fait from them, doth cleave & lean unto them, and giveth such credit and approbation unto them, that she doth found and build her judgements in most cases of greatest importance upon them: So she retaineth a vigilant and careful eye, that those oaths be taken by men of sincerity of life, and maturity of judgement, persons not stained with Perjury, or other grievous or foul offences, men indifferently affected, and such as will in swearing respect the truth of their knowledge, and not the face of the person: for if she espy any of those defects in him, she doth either wholly reject his oath, or else she giveth little or no credit unto it, and further inflicteth condign punishment upon him, according to his desert. Mag. Char. 9 H. 3. 29. 3 And because the King himself at his Coronation is sworn, that justice shall be sold, deferred, or denied to no man: nor that any man shall be condemned but by lawful trial: and every of his judges be sworn, that he shall do equal Law and execution of justice to all the King's Subjects, Sta. 18. Ed. 3 rich and poor, without having regard to any person: All the parties to the execution of justice sworn. Therefore the law hath devised that those judges before whom any cause is called in question, and is brought to an issue, shall be informed of the truth of that issue, by the oaths and verdict of twelve jurors, who are impanelled, returned, and sworn to try that issue, to the end the same judges may ground their judgement thereupon, and so do equal justice to the parties, according to their oaths: and also that the said jurors shall be ascertained of the verity of the fact, by the Oaths of witnesses, or other evidences, that they may give their verdict thereupon, according to their Oaths. And seeing those jurors being the greatest number of persons that be usually sworn, for the furtherance and execution of justice, be returned by the Sheriff of the County where the cause dependeth in question, his undersheriff, or the bailiff of some Liberty, or for some default in them, by the Coroners: Therefore the Law hath further ordained, that the said Sheriff, Vndershiriffe, or &c. shall be indifferent persons of themselves, and also deal uprightly in returning of those jurors, lest by their partiality, Truth may be concealed, Perjury committed, and so justice subverted. 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. Challenge. 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 providence of the Law doth not allow that Sheriff, Vndershiriffe, Bailiff of Franchise, Coroner, Causes of suspicion in sheriffs in impannelling of juries. or other person as indifferent, or meet to impannell a jury, who is a party to the suit or matter in question: or who doth maintain either of the party's plaintiff, or defendant in the same suit: or is of council with either of them in that suit then in issue: Nor who is within the distress, receiveth the yearly fee, or weareth the livery or rob of any of the parties to that suit: Nor who is of kindred by nature, or of affinity by marriage, to any of the parties to that suit: Nor who doth return that inquest, or any of the jurors therein, at the denomination, or by the procurement of any of the parties to the same suit, or of any other person whatsoever: Nor who doth impannell that inquest, or any of the jurors therein, for the favour which he doth bear more to the one party than to the other: Nor who was an Arbitrator in that cause in question, and to be in trial, and did treat and confer of the same: Nor who is then in suit of law with either of the parties to this question or trial, for any matter of trespass, malice, or evil will: Nor who did baptise the child of any of the parties to this suit and trial, 4. Ed. 4. 11. or any of the parties to the same suit did baptise his child. All which the Law doth suspect as causes of favour and affection in the Sheriff, his Vndershiriffe, etc. and to be movers, favourers or consentors to Perjury, and therefore upon challenge of the Array so being impanelled, and the same proved, the whole Array shall be quashed. 4 As the Law hath great care that sheriffs, Vndershiriffes, Bailiffs of Liberties, Coroners, and all others having authority to return inquests should therein be void of all partiality, or presumption or cause thereof, to the intent that a gap should not be left open by their means, to those that be willing to enter into corruption of conscience, and so to commit Perjury: In like sort hath she vigilantly foreseen, that those jurors which be returned by the said Sheriffs, etc. may be so sifted, tried, and examined, that they may be found in all respects Probi & legales homines, Every juror must be an honest and lawful man. viz. honest, upright, 33. H. 6. 55. 26. Ass. p. 28 14 H. 4. 19 9 Ed. 4. 16. 11. H. 4. 4. and lawful men in the eye and judgement of the Law, and that none of them be an Alien, a villain, or outlaw, an excommunicate person, and thereby not legalis homo, nor convicted in a Writ of Conspiracy, or an Attaint, and by that means not probus homo, and so to be challenged in every cause, and by every person: and further, that they may be proved to be men of indifferency, and void of all partiality, and such as will wholly respect the truth of the cause in question, and in their verdict nothing regard any that is party thereunto. And therefore if there be any lawful cause to fear particular favour and affection in any of the jurors, and that he will rather incline to Perjury, than give ear to the truth of the cause, the Law doth allow to the party grieved, Challenges of jurors suspected. or suspecting the same, several Challenges to the same juror, and thereby to have him drawn and removed out of that inquest. A witness. 5 As if a man be a witness in a cause in question, he can not be a juror in the same cause, for the witness doth testify upon his certain knowledge, 23. Ass. p. 11 12. Ass. p. 12 11. Ass. p. 19 and the jurors of an inquest must give their verdict according to their evidence. And beside, he that produceth a witness, expecteth at his hand a favourable delivery of his evidence, or otherwise he would not produce him, which favour every juror must be wholly void of, if he will avoid Perjury. Perjury suspected by delivering his verdict before hand. 6 If a juror after he is returned, and before he is sworn, 20. H. 6. 39 8. Ed. 3. 69. will say that he will pass for the plaintiff, or defendant, and doth speak it for the favour which he beareth to the one party, or the hatred which he hath to the other, (and not in respect of his own knowledge of the truth of the cause) the Law doth fear perjury in him, and therefore she will remove him out of that inquest, if he be challenged therefore. Perjury suspected by lying at the charge of one of the parties. 7 If one that is impanelled of a jury doth go to the Assizes with one of the parties to the issue, and doth eat and drink with him at his charges, 8. Ed. 3. 69 13. H. 4. 13. Fitz. Challenge. 177. the Law doth suspect the same juror of partiality, and so of inclination to Perjury, in recompense of that kindness received, and therefore she will remove him out of that inquest 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, Perjury 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 do meet together, and confer of the cause, but do not agree, whereupon the party grieved doth prosecute the said suit to an issue, and one of the same Arbitrators is returned of that inquest, the law doth suspect the same juror of partiality, and so of inclination to Perjury, and therefore she will remove him out of that inquest, if he be challenged therefore; for when he was chosen by one of the parties alone, this election maketh him in a sort of council with him that did choose him, and so favourable unto him, but if he had been chosen by the consent of both the parties together, 3 H. 6. 25. the law would have made other construction of him, and adjudged him indifferent. 34. Ass. p. 6. 9 If two men do combine themselves by Oath, bond, covenant, or faithful & advised promise, that one of them will take an others part, be his friend, and assist him in all causes whatsoever: And after there is a suit commenced between one of those parties & a stranger, and they come to issue, & the other party who made the same combination is returned upon the inquest to try the matter in issue between his companion and that stranger, Perjury suspected by combination. the law doth suspect him of favour and perjury, & so will reject him, if he be challenged therefore, for she doth fear that his old friendship & former league with the party to that issue hath sunk deeply into his breast, and will further prevail with him, than the truth of a strangers case to be presently examined and tried will do, be it never so apparent. Fitz. Chal. 106. 10 If two men be at controversy, and in suit of law, Perjury suspected if one of the parties & a juror be at suit in law. and depending that suit; there is an other controversy, and suit in law commenced between one of those parties & a stranger, 8. H. 5. 11. and they descend to an issue, and the other party to the first suit is returned one of that inquest: In this case the law doth suspect him of malice, and will remove him out of that inquest, if he be challenged therefore by his former adversary: for she doth fear that the grudge which he hath conceived in his heart against his adversary upon the first suit, will move him to revenge, which is one of the grounds and causes of perjury. 8. H. 4. 3. 27. Ass. p. 13 11 If two persons or more do conspire and agree between themselves to indite an other of felony, and accordingly they do procure him to be indicted of the same felony, of which felony upon his arraignment he is acquit; if the party indicted do bring a writ of conspiracy against the said conspirators, and they do come to an issue to be tried by a jury, Perjury suspected for that the juror passed against him before. if any of those who were the Inditors of the same person be returned upon the inquest to try the conspiracy, the law will suspect him of partiality, and not admit him to be sworn to try the conspiracy, for fear of perjury: for she conceiveth that he will do his endeavour to justify and maintain that which before he had found upon the indictment, though it be false, for the saving of his own credit. And the like law is, if a man be one of those who do indite an other of felony; and after when the party indicted hath pleaded not guilty, and doth submit himself to be tried by the Country, 7. E. 4. 4. 12. Ass. p. 36 the same Inditor is returned upon the inquest, to try innocency or guilt of the man, upon the challenge of him by the party indicted, he shall be removed: for the law will suspect him of perjury, and that he will rather respect his own credit, and justify his former oath and the indictment to be true, then regard his evidence the life of the man arraigned, and the truth of the case in trial. And it is specially provided by the Statute of Ann 25. Ed. 3. St. 25. E. 3. 3 That no Inditor shall be put in Inquests upon the deliverance of the indictees, if he be challenged for the same cause by him which is indicted. Perjury suspected in respect of Subjection or government. 12 And the Law doth suspect one that is returned of a jury of partiality and favour, who is within the distress of either of the parties to that suit, Fitz. Challenge. 19 27. 46. 61. 4. H. 6. 25. 44. Ed. 3. 5. or that is within the jurisdiction of the Court Hundred, or Court Leete of the plaintiff or defendant, or of any other, in whose right, to whose use, or, by whose commandment either of them do claim: for if he hath any land in his own right, or his wives, or that any other is seized to the use of him or his wife of any land whereof he taketh the profit, 38. Ed. 3. 25 which is holden mediately or immediately of either of the parties to that suit, the Law doth suspect him of Perjury, and being challenged therefore, he shall be drawn, and not sworn of that inquest. 22. Ed. 4. 1. And so it is if any of the persons returned to be of a jury be servant to either of the parties to that Issue, the Law doth suspect him of Perjury, for that he is at the commandment, and under the correction of his Master, and therefore being challenged, he shall be drawn out of that jury. And the like Law is if either of the parties to the suit, 2. H. 4. 13. be servant to any of the jury, and that juror be challenged therefore, he shall not be sworn for fear of Perjury, which he may commit for his servants benefit. Perjury suspected in respect of kindred, alliance, or profit. 13 The Law doth also perceive, 8. H. 6. 15. 7. H. 6. 40. that Nature and private profit be oft times special motions to Partiality, Favour, and Perjury. As if any person be returned of a jury, who is near of kindred or affinity to either of the parties to that suit, or to his wife, viz. within the degrees of Marriage, and specially, if the same juror may by any presumption, or likeliehoode, after take benefit of the thing in question: Or if either of the parties to that Issue, may be heir to the juror, or the juror or his heir be heir to the said party: then the Law upon Challenge doth reject that juror for fear of Perjury. But if the kindred or alliance between the party to that suit, 40. Ass. p. 20. and the juror be far off, and many degrees asunder: Or that one be a kinsman on the father's side, and the other of the mother's side, or one be a kinsman to the other of the half blood, or a Bastard, or otherwise, Fitz. Challenge. 102. in such sort that the land of the one can not by the course of inheritance, and the rules of the Law descend to the other: Or if the alliance be such, that the son of the one hath married the daughter of the other, and not between themselves: 3. Ed. 4. 12. then the Law doth not fear Perjury in the same juror, but he may be sworn to try that Issue. And if there be a suit commenced between a Corporation and a private person, and that doth come to be tried by a jury, if any of the same jury be near of kindred, or alliance to any person of that Corporation, 34. Aff. p. 6. 7. Ed. 4. 4. or to any principal Officer of that Corporation, the Law doth suspect him of Perjury therefore, and if he be challenged for that cause, he shall be drawn out of that inquest. 2. H. 4. 15. 10. H. 6. 24. The Law doth account it a kind of affinity, One godfather to the others child. if one of the parties to the suit have baptised, and been godfather to a child of one of the jurors, and that the juror in respect thereof doth bear an extraordinary affection, and is to make a recompense to the same party, and that therefore in this trial he will favour him, and be a mean of Perjury: and therefore if the juror be challenged for that cause, he shall be drawn: And some do affirm the same cause of challenge and fear of Perjury to be, 7. H. 6. 40. 19 H. 6. 66. if a juror hath been godfather to either of the parties to that trial, or to any child of his. 14 The Law expecting to be satisfied per Veredictum juratorum of the truth of such causes as do come to an issue, doth carefully foresee, that those jurors who are to deliver the truth by their verdict, Perjury suspected in respect of ignorance of the cause. should either before the time of the trial upon their own private knowledge, or by their Evidence at the time of the trial, be certainly informed of that truth of the thing in question, lest by ignorance, mistaking falsehood for truth, they should slide into Perjury. And because those that be dwelling, or have some land, where the land, lease, or thing in question doth lie, are more likely to have intelligence of the truth of the cause in question, both to satisfy themselves, and inform their Companions, than other strangers of the same County are, who dwell far off, the Law hath ordained by the Statute of Anno 27. Elizab. That there shall be six sufficient Hundredors impanelled upon every Issue joined, which is to be tried in any of the Courts of the King's Bench, Stt. 27. El. 6. Common Pleas, and the Exchequer, Want of Hundredors. or before the justices of Assize, in all cases where every juror by the ancient laws of this Realm ought to have forty shillings of fréeholde at the least. And that at, or upon the trial of any personal action, there shall two sufficient Hundredors at the least appear. And for that cause, if in those cases there be not so many Hundredors at the least, the Law doth conceive, they be ignorant of the truth of the Issue in trial. And to that end for the avoiding of Perjury, she will reject the whole jury, if they be challenged. And so it is in an Assize, where the plaintiff is to be put in possession per Visum juratorum (if he recover) or in any action where the jury is to have the view of the land in question; 8. Ed. 3. 69. Fitz. Chall. 102. 169. if the same jurors, Want of the view. or some of them had not the view of the land in question, nor did know it before, the Law will suspect that they will commit Perjury, if they should be sworn, seeing they be ignorant of the land, and know it not in specie. And therefore upon challenge they shall be removed. 1. R. 3. 4. 15 Because our Lawmakers have in several ages found by experience, that nothing is a greater motive, enticement, Perjury in respect of poverty. or rather enforcement to Perjury than need and poverty: Therefore they have endeavoured by many Statutes to provide, that such as be returned of Inquests, should not only be men of good behaviour and credit, but also of convenient liveliehoode, estate, and ability to live of themselves, for that Necessity (which hath no law nor bridle) should not compel them to sell truth for rewards, nor to plunge themselves into Perjury for bribes. And for the prevention of this Perjury in poor persons, and such as be of mean and weak estate, Stt. 21. Ed. 1 by a Statute made Anno 21. Ed. 1. it was ordained, That no Sheriff, Vndershiriffe, or Bailiff of Liberty, shall put in any recognisances of Assizes, juries, Inquests, or Attaints, jurors impanelled that shall pass out of their own Counties. that shall pass out of their proper County, any person of their bailiwicks (except he hath lands and tenements to the yearly value of a hundred shillings at the least) or that shall pass within the County (except he hath lands to the yearly value of xl. s. And for the same cause, & upon the same reason of prevention of perjury in poor and needy persons, by a Statute made Anno 3. H. 5. it was established, St. 3. H. 5. 3 That no persons shall be admitted to pass in any inquest upon trial of the death of a man, or in any inquest between party and party, in plea real, or in plea personal, whereof the debt or damages declared do amount to xl. Marks, if the same person hath not lands and tenements of the yearly value of xl. s. above all charges, so that he be challenged for that cause by the party. But by the Statute of Ann 23. H. 8. St. 23. H. 8. 13. every person being the King's natural subject borne, which by the name of a Citizen, a freeman, jurors to try felonies in corporat towns. or any other name, doth enjoy the liberties of any City, borough, or town corporat where he dwelleth, being worth in goods to the clear value of xl. li. shall be admitted in trial of Murders, and felonies, in every Sessions, and gaols of delivery, kept in, and for the liberty of such Cities, boroughs, or Towns corporat, albeit he hath no freehold. But this Act extendeth not to any Knight, or Esquire, dwelling, abiding, or resorting in, or to any such city, borough, etc. And by the Statute of Ann 27. Eliz. it was enacted, Sta. 27. El. 6. That in all cases where any juror to be returned for the trial of any issue or issues, joined in any of the Courts of the King's Bench, common Pleas, & the Exchequer, or before justices of Assize, by the Laws of the Realm now in force, aught to have estate of freehold in lands, Where jurors must have 4. li. land. tenements, or hereditaments, of the clear yearly value of xl. s. in every such case the jurors that shall be returned, shall every of them have estate of freehold in lands, etc. to the clear yearly value of four pounds at the least, out of ancient demesne within the County where the issue is to be tried. By the Statute of 11. H. 7. it is provided, St. 11. H. 7. 21. That no person shall be impanelled, summoned, or sworn in any jury or inquest in Courts within the city of London, jurors in London. except he be of lands, tenements, goods, or cattles to the value of xl. Marks. And no person shall be impanelled, summoned, or sworn, in juries or Inquests in any Court within the said City, for lands or tenements, or action personal wherein the debt or damages amounteth to the sum of xl. marks, except he be in lands, tenements, goods, or cattles, to the value of one hundred marks. St 19 H. 7. 13. By the Statute of Anno 19 H. 7. it was ordained, That every of the xxiv. persons dwelling within the shire where any riot, jurors to inquire of riots. rout, or unlawful assembly shall be committed, which shall be returned by the Sheriff to inquire thereof, shall have lands and tenements within the same shire, to the yearly value of xx. s. of Charter land, or freehold, or twenty six shillings eight pence of copiehold, or of both, above 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, than every of them shall have lands and tenements, or rents to the yearly value of ten pounds at the least. By the Statute of Anno 1. St. 1. R. 3. 4. R. 3. it was enacted, That no officer shall return in any panel to be taken or put in, jurors in the sheriffs Turn. or upon any inquisition or inquiry before the Sheriff in his Turn, other than such which be of good name and fame, and which have lands or tenements of freehold within the same county to the yearly value of xx. s. at the least, or else copyhold lands to the yearly value of xxuj. s. viii. d. at the least, above all charges. By the Statute of Ann 8. H. 6. Sta. 8. H. 6. 9 it was provided, That every person which shall be returned to inquire of any forcible entry into lands, jurors to inquire of forcible entry. or detaining of lands by force, shall be a sufficient & indifferent person, and shall have lands and tenements to the clear yearly value of xl. s. By the Statute of Ann 1. H. 8. it was established, Sta. 1. H. 8. 8. That every juror which is returned before any escheator, jurors returned before Escheators. or commissioner, to inquire of lands or tenements, or some other to his use, shall have lands or tenements of the yearly value of xl. s. above all charges in the same shire where the inquiry shall be made. St. 11. H. 7. 21. 23. H. 8. 3. 37. H. 8. 5. And by the stat. made Ann 11. H. 7. Ann 23. H. 8. An & 37. H. 8. The jurors returned upon an attaint in London, or else where, shallbe of more or greater ability in lands, tenements, goods or cattles then is before specified. 16 The law having first used all good devices to cause sheriffs, undershirifes, bailiffs of liberties, coroners, & all others authorized to return & impanel juries to be indifferent, & to return the said juries & jurors without all partiality, & that they shallbe no furtherers, maintainors, nor assistors to perjury, subornation, or embracery, & also having provided that all those jurors which be so returned upon Inquests, & to try issues between party & party, may again one by one be sifted, tried, & examined, whether they standing unsworne be indifferent, or not: She doth then expect to receive from those jurors Veredictum a true tale, that is to say, a true verdict or presentment of such things as be given them in charge, according to their evidence. But if the same jurors will decline from truth, and make a false presentment, contrary to their evidence, 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 xxiv. other jurors, shall receive a cursed and villainous judgement therefore, viz. the said jurors shall lose the freedom of the Law, their wives & 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 judgement in an at the common law of a jury proved perjured. their houses shall be pulled down to the ground, their orchards & gardens shall be supplanted, their trees shall be digged up by the roots, their meadows shall be eyred up: All the goods & cattles which they had at the time of the Attaint brought, or at any time after, shall be forfeited to the King: The King shall have all the profits of their lands during their lives: And they shall be committed to perpetual prison. Which judgement was devised, & many years put in execution, to the intent it might be known how much the common Law did detest and punish wilful Perjury and falsehood, in those who she trusted in place of justice, and from whom she accounted to receive truth. 17 But since by the Statute of Ann 11. H. 7. and Ann 23. H. 8. the said judgement against a petit jury 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 grieved by any false verdict given in any of the Courts of the City of London, shall and may sue Attaint by Bill in the Hustings of London, The judgement in Attaint in London. holden for common Pleas before the Mayor & Aldermen of the same City. And if the grand jury sworn in the same Attaint, find that the petit jury have given an untrue verdict, than the judgement shall be against the defendant, as is used in attaint sued by writ at the common Law: And the judgement shall be against the petit jury, that every of them shall lose xx. li. or more, by the discretion of the Mayor and Aldermen of the said City keeping the Hustings, to such uses as other issues and penalties been forfeited in any action or plaint commenced before the Mayor and Aldermen of the said city; and his body to be imprisoned, there to remain without bail or mainprize vj. months, or less, by the discretion of the Mayor and Aldermen; and to be disabled for ever to be sworn in any jury before any temporal judge: But the judgement 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 jury. And by the before mentioned Statute of Anno 23. H. 8. it was enacted, That upon every untrue verdict given between party and party in any suit, plaint, or demand, before any justices or judges of Record, where the thing in demand, and verdict thereupon given extendeth to the value of forty pounds, An attaint where the thing eetendeth to xl. l. and concerneth not the jeopardy of man's life, the party grieved by the same verdict shall have a writ of Attaint against every person so giving an untrue verdict, and every of them, and against the party which shall have judgement upon the same verdict. And every one that shall pass in the same Attaint, shall have lands and tenements to the value of twenty marks by year of freehold, out of ancient demesne. And if the grand jury find that the petit jury gave an untrue verdict, than every of the said petit jury shall forfeit twenty pounds, whereof one half shall be to the King, and the other half to him that sueth, to be levied by Capias ad satisfaciendum fieri facias, or Elegit, or by Action of Debt against every person of the petit jury so forfeiting, and against his Executors and Administrators, having then sufficient goods of their said Testator not administered. And every of the said petit jury shall severally make fine by the discretion of the justices before whom the said false Serement shall be found, after their several offences, defaults, and sufficiency of them. And those of the petit jury so attainted shall never be after of any credit, nor their oath accepted in any court. And if a false verdict be given in any action, suit, or demand before any justice, or judge of Record, Attaint where the thing doth not extend to xl. l. of any thing personal, as debt, trespass, and other like, which shall be under the value of xl. pounds, than the party grieved shall have an Attaint. And if the petit jury be attainted, than every of them shall forfeit five pounds to the King and the party after the form aforesaid, and also shall make fine by the discretion of the justices. And every person that may dispend five marks by the year of freehold, out of ancient demesne, or is worth an hundred marks in goods, is able to pass in the same Attaint. 18 The Law doth so hate Perjury, and so much endeavour to extirpate the very root thereof, that she doth sometime punish it in the only will, and intention of a man, though that will never come to effect, so that the same will and meaning may be laid open unto her; The meaning to commit perjury punished. by due proof; as it appeareth by a branch of the before specified Statute of Anno 11. Hen. 7. St. 11. H. 7. 21. whereby it is ordained That if it be found by the grand jury that the petit jury have given a true verdict, in any of the courts of the city of London, in a suit whereupon an Attaint is brought, than the grand jury shall have authority to inquire if any of the petit jury hath received any sum of money or other reward, or promise of money or other reward, of the named defendants, or tenants in the same Attaint, or of any other person by the commandment, covin, or assent of any of them, for the intent of their verdict giving, whereupon the same Attaint is grounded: And after any such corruption by the said grand jury found, Decies tantum. than the juror that is so found defective in taking money, or rewards etc. shall pay to the plaintiff named in the said Attaint, ten times the value of the sum, or other reward so taken, or promised, and shall suffer imprisonment without Bail or Maineprise six months, or less, by the discretion of Mayor and Aldermen of the said city, and shall be disabled for ever to be sworn in any jury before any temporal judge. And such defendant and tenant in the same Attaint, shall pay to such use as other penalties be forfeited within the same city, ten times the value of the sum of money, or other reward by him so given to any of the said petit jury, and shallbe imprisoned without Bail or Maineprise during six months, or less, by the discretion of the said Mayor and Aldermen. And in like sort, St. 34. E. 3. 8 38. E. 3. ●2. and for the same cause the Statutes of Anno 34. Edw. 3. & 38. Edw. 3. were provided, whereby it was enacted, That if any juror sworn in Assizes, or other Inquests to be taken between the King and the party, or between party and party, do by himself or any other take any thing of the plaintiff, or defendant, to give his verdict, and thereof is attainted at the suit of the party, which will sue for himself, or for the King, or of any other person (entering his plaint by Bill immediately before the justices before whom the jury was sworn) the said juror shall pay ten times so much as he hath received. Decies tantum. And all those which be Imbraceors Imbraceors. to lead and procure such Inquests in the Country, to make a gain and profit thereof, shall be punished as the jurors. And if the juror or Imbraceor so attainted have not wherewith to make recompense in form aforesaid, he shallbe one year imprisoned; which imprisonment shall not be pardoned for any fine: and the party grieved may have his action before other justices if he will. But no justice or other officer shall inquire of office upon any of the points of this Statute, but only at the suit of the party, and of others as aforesaid. By which foresaid Statutes it doth appear, that the Law doth punish Perjury, not only in such jurors as do commit it, but also in those persons who be the Imbraceors, Persuaders, or Procuters of it: and not only in those who do commit or procure it, but likewise in those who give or take rewards to have it done, though it be never effected: for she accounteth, that when a man hath given his heart leave for a reward to be sworn, it is the reward he respecteth in his oath, and not the truth of the cause; which reward will lead him blindfold into the dungeon of Perjury, and therefore he deserveth to be punished as a perjured person. S. Maintenance etc. 6. 19 Because divers did resort to jurors in Wales, and the Marches thereof, and suborned them to acquit Murderers, Felons, and Accessories openly known: St. 26. H. 8. 4 therefore by a Statute made Anno 26. H. 8. it was enacted, That forthwith upon the charge given to any inquest, to be taken and sworn before any justices, Steward, Lieutenant, or other officer within Wales, or the Marches of the same, of, for, or upon any Traverse against the King, or the trial of any recognisance broken, or any other forfeiture forfeited to the King, or of, for, and upon the trial of any Murderer, fellow, or accessory of felony or murder, an officer shall be sworn for the keeping of the same jurors. And if the same jurors do acquit any such fellow, murderer, or accessory, upon whose trial they shall be charged, or give any untrue verdict against the King, upon the trial of any Traverse, recognisance, or other forfeiture, The punishment of perjury committed by an inquest in Wales. contrary to the good and pregnant evidence ministered to them by the persons sworn before the said justice, Steward, Lieutenant, or other officer: Or that the said jurors or any of them do eat, drink, or speak to, or with any person, or persons, than to such as be sworn with them, or otherwise misdemean themselves after they be sworn, and before they have given their verdict: Then the Lord President or other of the Council of the Marches for the time being, upon notice or complaint thereof to be made, shall not only have authority to call such jurors before them, but also the same justiciar, Steward, or other officers, afore whom any such acquittal, untrue verdict, or misdemeanours shall happen to be made, shall have full power to compel such jurors, and every of them, upon pain of imprisonment, to be bound by Recognisance in a certain sum of money, by their discretion to be limited, that the same jurors, and every of them shall personally appear at a certain day by the same justiciar, Steward, or other officer to be limited, before the Lord Precedent, and other of the Council aforesaid for the time being, then, and there to abide, and stand to such direction and order, as the same council shall make, ordain, and decree, of, in, and upon the same. And the same council shall thereupon have authority by examination, or otherwise, to hear and determine all and every such cause, and shall have like authority to commit every of the same jurors to prison, or other punishment, as shallbe thought meet by the discretion of the said counsel, or otherwise assess, or tax every such juror to his fine and ransom by the same discretion, to be paid and levied of their lands, goods, and cattles, to the use of the King. Perjury committed by witnesses. 20 Having written of the restraint and punishment of perjury in jurors consisting of twelve persons at the least, impanelled or sworn to deliver their verdict according to their evidence, I am now to express what punishments the law doth inflictt upon such, which do come one by one, as deponents, or witnesses, to testify the truth, and to inform the judge, or the jury of the verity of the matter in issue or question, according to their knowledge, whereof every man by himself may be called singularis testis, though there be more witnesses sworn in that cause. And seeing that justice cannot be executed without the knowledge of the truth of the cause in question, & that truth is in most cases only to be delivered by the oaths and testimonies of such parties as were witnesses, privy, or best acquainted with the matter in variance: Therefore first it is to be observed, that the wisdom of the law hath thought it necessary, to provide that such witnesses may be compelled under a great pain to appear in court, and testify their knowledge concerning such matter in question: as by the Statute made Anno 5. A witness upon process served shall appear. El. it was ordained, St. 5. El. 9 St. 29. El. 5. That if any person upon whom any process out of any of the courts of Record within this Realm, or Wales, shallbe served, to testify or depose concerning any matter depending in any of the same courts, and having tendered to him according to his countenance, or calling, such reasonable sums of money for his costs and charges, as (having regard to the distance of the places) is necessary to be allowed in the behalf, do not appear according to the tenor of the said Process, having not a lawful and reasonable let to the contrary; then the party making default shall forfeit for every such offence x. l, and shall yield such further recompense to the party grieved, as by the discretion of the judge of the court out of the which the said process shall be awarded, according to the loss and hindrance that the party which procured the said process shall sustain, by reason of the non appearance of the said witness: the said several sums to be recovered by the party so grieved against the offendor by A.I.B.P. etc. in any of the K. courts of Record, wherein no W.E. or P. etc. 21 There were several statutes made during the reigns of king H. 6. K. H. 7. and K. H. 8. against Perjury, and the procurers and committers of perjury: and lastly one was ordained Anno 32. H. 8. St. 32. H. 8. 9 against such as should suborn witnesses, to the hindrance of justice, and the procurement of perjury: Since the making whereof, for that the penalty therein is small towards the offenders in that behalf, the said offence of subornation, and sinister procurement of false witnesses did nevertheless greatly increase, and by reason of the wilful Perjury committed by the same suborned witnesses, divers persons did sustain disherison, and great impoverishment, as well of their lands and tenements, as of their goods and cattles: The penalty for procuring of wilful perjury in witnesses. for the redress and more sharp punishment whereof, St. 5. El. 9 29. El. 5. by a Statute made Anno 5. El. it was enacted, That all and every person and persons which shall unlawfully, and corruptly procure any witness, or witnesses, by Letters, Rewards, Promises, or by any other sinister and unlawful labour, or means whatsoever, to commit any wilful and corrupt Perjury, in any matter or cause whatsoever, depending in suit and variance by any Writ, Action, Bill, Complaint, or Information, in any wise concerning any lands, tenements, or hereditaments, or any goods, cattles, debts, or damages, in any of the courts of the Chancery, Star chamber, White hall, or in any other of the King's Courts of Record, or in any Léet, view of Frank pledge, or Law day, Ancient demesne Court, Court Hundred, Court Baron, or in the Court or Courts of the Stannerie in the county of Devon, and Cornwall: Or shall likewise unlawfully and corruptly procure, or suborn any witness, or witnesses, which shall be sworn to testify in perpetuam rei memoriam: Then every such offendor or offenders, shall for his, hers, or their said offence, being thereof lawfully convicted or attainted, forfeit forty pounds to the King and the party grieved, hindered or molested by reason of any of the offences aforesaid, that will sue for the same by A. B. P. or I. in any of the King's Courts of Record, wherein no W. E. P. or I. shall be allowed. And if it happen any such offendor or offenders being so convicted or attainted as is aforesaid, not to have any goods or cattles, Lands or Tenements to the value of forty pounds, than every such person or persons so convicted or attainted of any of the offences aforesaid, shall suffer imprisonment one half year, without Bail or Maineprise, and stand upon the Pillory one whole hour in some Market Town, near, or next adjoining to the place where the offence was committed, in open market there. And no person being so convicted or attainted shall be from thenceforth received as a witness to be deposed in any court of Record within any of the King's dominions of England, Wales, or the Marches of the same, until the judgement, given against him, or them, shall be reversed by Attaint, or otherwise. And upon every such reversal, the parties grieved shall recover his or their damages against all and every such person and persons, as did procure the said judgement so reversed to be first given against them, or any of them, by action to be sued upon his or their case, according to the course of the common Law. St. 5. El. 9 22 If any person or persons, either by the subornation, The penalty for committing of wilful perjury. unlawful procurement, sinister persuasion or means of any others, or by their own Act, Consent, or Agreement, shall wilfully and corruptly commit any manner of wilful perjury, by his, or their deposition, in any of the Courts before mentioned, or being examined ad perpetuam rei memoriam: Then every person or persons offending, shall for his or their said offence lose and forfeit twenty pounds to the King and the party grieved, hindered, or molested by reason of any of the offences before mentioned, that will sue for the same by A. B. P. or I. in any of the King's courts of Record, wherein no W. E. P. or I. shall be allowed, and shall have six months' imprisonment without Bail or Maineprise. And the oath of such person or persons so offending from thenceforth, shall not be received in any court of Record within England, or Wales, or the Marches of the same, until such time as the judgement given against the said person or persons shall be reversed by Attaint, or otherwise. And upon every such reversal, the parties grieved, to recover his or their damages against such person and persons as did procure the said judgement so reversed to be given against them, by action to be sued upon his case. And if the said offendor have not any goods or cattles to the value of xx. l. then he shall be set on the Pillory in some market place within the shire, city, or borough, where the said offence shall be committed, by the Sheriff, or his ministers, if it be without any city or town corporat: and if it be within any city or town corporat, then by the head officer or officers of the same city or etc. or by his or their ministers, & there shall have both his ears nailed, and from thenceforth be discredited & disabled for ever to be sworn in any of the courts of Record aforesaid, until the judgement shall be reversed; and thereupon shall recover his damages in manner and form before mentioned. In what courts Perjury shall be punished. 23 As well the judge and judges of every such of the said courts where any such suit is, or shall be, Sta. 5. El. 9 and whereupon any such perjury is or shall happen to be committed, as also the justices of Assize, and jail delivery in their several circuits, and the justices of the peace in every county within this realm, or in Wales, at their Quarter Sessions, both within liberties and without, shall have authority by virtue hereof, to inquire of all and every the defaults and offences committed contrary to this act, by inquisition, presentment, bill, or information, before them exhibited, or otherwise lawfully to hear and determine the same, and thereupon to give judgement, award process, and execution of the same, according to the course of the laws of this Realm. Proclamation of this Statute. 24 The justices of Assize of every circuit within this Realm shall in every county within their circuits two times in the year, St. 5. El. 9 viz. in the time of their sit, make open Proclamation of this Statute, or of the effect thereof, to the intent that no person shallbe ignorant of the penalties herein contained. Perjury punished in the spiritual court. 25 Provided that this Act, or any thing therein contained, St. 5. El. 9 shall not extend to any spiritual or Ecclesiastical court within this Realm of England, or Wales, or the Marches of the same; but all and every such offendor and offenders as shall offend in form aforesaid, shall and may be punished by such usual and ordinary laws, as heretofore hath been, and yet be used in the said Ecclesiastical court: any thing in this Act etc. notwithstanding. Perjury punishable in the Starchamber. 26 Provided that this Act shall not extend to restrain the power or authority given by Act of Parliament made Ann 11. H. 7. Sta. 5. El. 9 St. 11. H. 7. 25. to the Lord Chancellor, and others of the King's Council, to examine, and punish riots, routs, heinous Perjuries, and other offences (which have used to hear and determine such matters in the starchamber at Westminster) nor to restrain the power of the Lord President and Council in the Marches of Wales, or in the North, nor of any other judge having absolute authority to punish Perjury before the making of this Statute: But But they and every of them shall proceed in the punishment of all offences heretofore punishable, in such wise as they might have done and used to do before the making of this Act, to all purposes, so that they set not upon the offenders less punishment than is contained in this Act. 27 Because by the said statute of 5. Eliz. 9 there is no Ordinance made for the punishment of those Bankrupts, who being sworn and examined upon Interrogatories by Commissioners thereunto authorized, shall commit Perjury: Nor for the punishment of those witnesses, who either by the procurement of others, or by their own consent shall commit Perjury, being examined by the said Commissioners touching Bankrupts goods or debts: Therefore by a statute made Anno 1. St. 1. jac. 15. jac. it was ordained, That it shall be lawful for the Commissioners authorized under the great Seal of England, or the greatest part of them, to take order with Bankrupts bodies, lands, tenements, and hereditaments, money, goods, cattles, wares, and debts, to examine the said offendor or offenders upon such interrogatories, touching the lands, tenements, goods, cattles, and debts, bills, bonds, books of account, and such other things as may tend to disclose his, her, or their estate, or the secret grants, conveyances, and eloigning of his, her, or their lands, tenements, goods, money, and debts, as they shall think meet. And if therein the offendor or offenders shall refuse to be examined, or to answer fully to every interrogatory, to him to be ministered by the said Commissioners, or the greater part of them, it shall be lawful for the said Commissioners, or the greater part of them, to commit the said offendor or offenders to some straight or close imprisonment, there to remain, until he, she, or they shall better conform him or herself. And if upon his, her, or their examination it shall appear, that he, she, or they have committed any wilful or corrupt Perjury, tending to the hurt or damage of the creditors of the said Bankrupt, Perjury punished in Bankrupts. to the value of ten pounds of lawful money of England, or above, the party so offending shall or may thereof be indicted in any of the King's Courts of Record, and being lawfully convicted thereof, shall stand upon the Pillory in some public place by the space of ij. hours, and have one of his ears nailed to the Pillory and cut off. And by the same statute of Anno 1. jac. it is further established, That if any person or persons (other than the Bankrupt) either by subornation, unlawful procurement, sinister persuasion or means of any others, or by his own act, consent, or agreement, shall wilfully and corruptly commit any manner of wilful Perjury, Perjury committed by witnesses for Bankrupts. by his deposition to be taken before the said Commissioners, or the greater part of them, as is aforesaid: Then the party or parties so offending, and all and every person and persons that shall unlawfully and corruptly procure any such unlawful, wilful, and corrupt Perjury, shall or may therefore be indicted in any of the King's Courts of Record, and after his or their conviction thereof, shall incur such forfeiture, and receive and have such pains and punishment as are limited by the statute made concerning Perjury, St. ann 5. El. 9 Anno 5. Eliz. 9 Co. li. 5. f. 99 28 A man cannot be indicted for Perjury upon the foresaid statute of 5. Perjury committed upon an indictment of Riot. El. for giving false evidence on his oath to the inquest at a Sessions, upon an Indictment of Riot: For the statute was ordained against procurers of Perjury, in a matter depending in suit and variance, by any Writ, Action, Bill, Complaint, or Information, and so procurement of Perjury upon an indictment is out of this branch of the said statute. And the second branch of the same statute touching committing of Perjury, shall have the same construction which the first hath, though it be not there in words, and shall have reference to the first: And it shallbe expounded as if the words of the statute had been, If any person shall wilfully and corruptly commit any wilful Perjury in any cause depending in suit by any Writ, Bill, Action etc. And the same law is, if a man commit wilful Perjury, Perjury upon an indictment of Felony. upon evidence given to the great inquest upon an indictment of Felony, he is not to be punished by force of the foresaid statute of Anno 5. Eliz. Perjury in proving a suggestion for a prohibition. 29 If wilful Perjury be committed in the King's bench, 7. & 8. Eliz. Dyer 243. by any witness produced to prove a Suggestion for a Prohibition there granted against an Ecclesiastical judge, according to the statute of 2. & 3. E. 6. St. 2. E. 6. 13 whereby the party is stayed of this consultation, this shall not be examined and punished in the Star chamber: for the statute of 3. H. 7. St. 3. H. 7. 1 which maketh mention of such things as the Court of Star chamber is to hold plea of, provideth no more punishment by special words for Perjury, than it doth for Murder or Rape. There is a proviso in the foresaid statute of Anno 5. El. That the Lord Chancellor and others of the Qu. Counsel shall and may proceed in the punishment of all offences, in such wise as they might have done, and used to do, before the making of the said Act to all purposes, so that they set upon the offenders no less punishment than is contained in the said Act. 30 A Bill of Perjury may be sued in the Chancery for a perjury committed in the same Court, A suit upon perjury in the Chancery. contrary to the foresaid statute of Anno 5. 12. El. Dy. 288. El. and if the defendant do plead unto it not guilty, he shall be sworn to his plea, and also shall answer to Interrogatories, as it is usually done in the Star chamber, for the L. Chancellor had absolute power before the said statute of Ann̄ 5. El. to punish Perjury. And therefore by a proviso in the said statute, his power therein is not restrained by the same statute. And if the Court of Chancery will examine Perjury committed there, it must be done by a bill in Latin, and pleaded in Latin, and the issue shallbe joined there, and tried in the K. Bench, as it is used in the like cases. Where perjury shallbe punished in the temporal court, & where in the spiritual. 31 There is no remedy or punishment for Perjury in a spiritual Court against indictors, that do indite a man of felony, which be perjured, 22. H. 8. Kel. 39 or against a jury which doth give a false verdict between party and party: And if a suit be commenced in the spiritual court against an offendor in Perjury, in either of those cases, he may have a prohibition; for this perjury doth rise upon a cause that is temporal, viz. the Treason, or Felony, Debt, Trespass, or plea of land: and for this perjury the offenders shall be punished by attaint by the common law, or otherwise. And so it is, if a man be defamed by a false indictment, there is no remedy in the spiritual Court for his defamation, for that it groweth upon a matter which is temporal. But where the Perjury doth rise upon a matter which is spiritual (as upon a Testament, Matrimony, or Legacy, or such like) then the spiritual judge hath authority to punish it, and in that case a Prohibition will not lie. And as there is no punishment in the Ecclesiastical Court for Perjury that doth rise upon a cause that is temporal: So the Law hath provided, Co. lib. 4. 20 that defamation Defamation. (which is another evil fruit of a malicious and corrupt heart, and of a lewd and venomous tongue) shall not be punished in the Ecclesiastical Court, unless it concern matter that is merely spiritual, and determinable in the Ecclesiastical Court, as to call a man Heretic, Schismatic, Adulterer, Fornicator etc. and unless it doth concern matter that is merely spiritual only: For if such a defamation do concern any thing that is determinable at the common Law, the Ecclesiastical judge shall not hold plea thereof. And yet if such a defamation be merely spiritual, and only spiritual, notwithstanding he that doth sue in the Ecclesiastical Court for being defamed, cannot sue there for recompense or damages, but only for the punishment of the offence. ❧ Maintenance, Champerty, Embracerie, and Buying of Titles. MAintenance is, where a man giveth to another (that is demandant, What maintenance is, & the enormities thereof. or tenant, plaintiff or defendant in any suit, or to any other in his behalf, or to his use) any sum of money, or other reward for to maintain his plea or suit: Or otherwise useth persuasion, or maketh labour for him, or useth other means to countenance, aid, or assist him, when he himself hath nothing therewith to do. Which is an offence that the wisdom of the Realm from age to age hath condemned, and hath endeavoured to inflict divers punishments upon the transgressors therein, as it may appear by the statutes of West. 1. West. 2. 28. Ed. 1. 33. Ed. 1. 8. H. 6. 19 H. 7. 32. H. 8. & 18. El. The law doth so greatly desire the continuance of peace between one member of the Commonweal and another, & so much condemneth variance & suits without cause, that many times and in many causes the plaintiff is amerced for commencing a wrong full suit: for the law doth intend those suits to be pursued for vexation & trouble: and likewise in some other cases the def. is amerced for the wrongful detaining of that which is not his own, and for enforcing the plaintiff by suit in law to seek & recover his own. But as in all cases the unlawful maintainor of suits is in fault, so is he in every such case punishable. For though the case of the plaintiff or def. which he undertaketh to maintain, be just and lawful in him, who prosecuteth or defendeth the suit, & whose the cause is, yet in the maintainor it is unlawful, for it is not his own suit, neither is it pursued or defended for the recovery or protection of that which he pretendeth to be due to himself; and so in a sort he maketh complaint where he hath no wrong, or maketh defence where none seek to hurt him, whereby, opposing himself against others who do not contend with him, he laboureth to disturb the ordinary course of justice, and therewith to blemish the peace of the Realm: for as it appeareth partly by the statute of Anno 1. Ed. 3. Sta. 1. E. 3. 14 and specially by the preamble of the statute of Anno 32. H. 8. St. 32. H. 8. 9 Nothing conserveth the people in more peace & good concord, than the due administration of justice, and the indifferent trial of titles and issues, according to the Laws of this Realm, which being hindered & letted by Maintenance, Embracery, Champerty, Subornation of witnesses, sinister labour, and buying of titles, there will of necessity ensue thereof great perjury, unquietness, oppressions, troubles, wrongs, and disheritances. 2 And because this Maintenance is as an evil Tree having grown out of it many corrupt branches: therefore the wisdom of the Realm hath from time to time provided several statutes (as it were sharp hatchets) to lop or shred those boughs when they did spring and shoot out. As King Ed. 3. Maintenance by men of authority. perceiving that his Counsellors, Magistrates, and Officers in his house, & certain great men of the Realm, by sending of Letters, Messengers, giving of Liveries, & by other means, did solicit matters, and maintain quarrels, and took parts in the Country, St. 1. E. 3. 14 20. Ed. 3. 3. by a statute made Anno 1. of his reign, and another Anno 20. of his reign, did ordain, That common right should be done to all persons, as well poor as rich: and that none of his said Officers, nor any Noblemen, nor any other great or small, should take upon him to maintain quarrels, or to take parts, to the let or disturbance of the common law: Nor that any should take in hand, or meddle with quarrels or questions, but their own. And because there was no special punishment ordained by the said statute of Anno 1. Ed. 3. for those who should transgress that Law, therefore King R. 2. by a statute made in the first year of his reign established, St. 1. R. 2. 4. That if the king's Counsellors or great Officers should take upon them to sustain any quarrel by Maintenance in the Country, or elsewhere, he so offending should endure that pain which should be inflicted by the King himself, by the advice of the Lords of his Realm: and other inferior officers and servants of the Kings, in the Exchequer, and other Courts: and his menial servants shall lose their offices and services, and be imprisoned, & be ransomed at the king's pleasure, every of them according to his degree, estate, and desert: and all other persons of the Realm, of what estate soever they be, shallbe imprisoned and ransomed as the other aforesaid. St. 33. Ed. 1. 3 The statute entitled Definitio de conspiratoribus, made Anno 33. E. 1. Maintenance by combination doth decipher another sort of Maintainors, which there be called conspirators in this sort, St. 1. R. 2. 7. viz. Conspirators be they that bind themselves by oath, covenant, or other alliance, that every of them shall help and sustain the other, falsely & maliciously to indite, or falsely to move or maintain pleas: and also such as cause children within age to appeal men of felony, whereby they are imprisoned & sore grieved: and such as retain men in the country with liveries, or fees, to maintain their malicious enterprises; and this extendeth aswell to the takers as to the givers: and stewards and bailiffs of great lords, Maintenance by noblemen's officers. which by their signiory, office, or power, undertake to uphold or maintain quarrels, pleas, or debates, that concern other parties than such as touch the estate of their lords, or themselves. 4 There is also another kind of Maintenance, which is called Champerty, Maintenance by champerty. and the offenders therein be called Champertors, whom the foresaid statute of Anno 33. St. 33. Ed. 1. E. 1. doth define in this manner, Who be champertors. viz. Champertors be they that move pleas and suits, or cause to be moved, either by their own procurement, or by others, & sue them at their proper costs, for to have part of the land in variance, or part of the gains: which Champertors were accounted great maintainors of suits, and professed enemies to peace: whereupon it was ordained by the statute of West. 1. St. 3. E. 1. 25. That no Officer of the Kings by themselves, nor by other, shall maintain pleas, suits, or matters hanging in the King's Court, for Lands, Tenements, or other things, for to have part or profit thereof, by covenant made between them, and he that doth, shall be punished at the king's pleasure: and after by the statute of Westm. 2. St. 13. E. 1. 48 the same was expressed more at large, by the which it was enacted, That the Chancellor, Treasurer, justices, nor none of the King's Council, no Clerk of the Chancery, nor of the Exchequer, nor of any justice, or other Officer, nor none of the King's house, Clerk, nor Lay, shall receive any Church land nor tenement by gift in fee, nor to farm, nor for purchase, nor otherwise, so long as the thing is in plea in the King's Court, or before any of his Officers, nor shall take reward therefore: and he that doth contrary to this Act, either himself, or by any other, or make any bargain, shall be punished at the King's pleasure, as well he that doth purchase, as he that doth give. And because other Officers were not bound by the foresaid Statutes as well as the Kings, and to the intent some certain and more sharp penalty might be imposed upon the transgressor of the said statutes, then before time had been provided, Therefore by a statute made Anno 28. E. 1. St. 28. Ed. 1. 11. entitled Articuli super Chartas, it was ordained, That no Officer, nor any other (for to obtain part of the thing in plea) shall maintain any matter that is in suit: Nor none upon such covenant shall give up his right to another, and if any do and be attainted thereof, the taker shall forfeit to the King so much of his lands and goods, as doth amount to the value of the part that he hath purchased for such Maintenance: and to obtain that, any person that will, shall be received to sue for the king, before those justices before whom the suit doth depend, and the judgement shallbe given by them. But it may not be understood in this case, Pleaders may give counsel for their fees. that a man may not have counsel of pleaders and learned men for his fee, nor of his next friends. And after, to the intent to impose a sharper punishment upon such as should be offenders in Maintenance, Champerty, or the like, by a statute made Ann̄ 33. E. 1. it was enacted, St. 33. Ed. 1. That if any person do take upon him for Maintenance, Champerty, or the like bargain, any manner of suit or plea against another, The punishment of champertors. & is attainted of such assumption, suit, or bargain, or of consent thereunto, he shallbe three years imprisoned, and further punished at the king's pleasure. 8 And so it appeareth by the foresaid statutes, that it is Champerty, Fit. Nat. Br. 171. 7. Ed. 3. 9 Fit. champ. 6. where a man by covenant or agreement made by writing or word, What is champerty, & what not. doth bargain to have parcel of the land, debt, or other thing which is in suit, if it be recovered to aid and maintain the party to that suit: and in this case, he that is the other party to that suit, & oppressed or grieved by this Maintenance, may prosecute a writ of Champerty against the same offendor, 9 H. 6. 64. or a writ of Maintenance at his choice, for every Champerty is Maintenance, but every Maintenance is not Champerty. And in this case of Champerty, he that selleth his land, or demiseth his land for life or years, or any part thereof, during the time that the same land is in suit, shall be punished according to the foresaid statute of 28. Ed. 1. as well as he that purchaseth the same land. Fit. champ. 5. 30. Ass. p. 5. 8. Ed. 4. 13. And the writ of Champerty may be brought against the buyer alone, or against the seller alone. And it is all one penalty where he selleth his land for money or other consideration, and where he freely doth give his land: for if it be given during the time that the land is in suit, it is Champerty: for the Law doth prohibit every man to obtain land when it is in suit. But if a man purchase land after judgement, it is no Champerty, for then there is no suit depending touching that land: and if a man that is learned in the Law, and doth give counsel therein, 13. H. 4. 19 do take part of the land that was in variance of his client for his fees, after the same is recorded, this is no Champerty: So that the bargain be made after the recovery of the land, and not depending the suit. 47. E. 3. 9 7. E. 4. 15. And if a man do bring an action against another, and do recover the thing in question against the defendant, yet the plaintiff may have an action of Maintenance against every person that shall maintain the defendant in that suit, though he hath lost nothing by that Maintenance, for that the same Statute of 28. Edw. 1. is a prohibition of Champerty. And if a man do bargain for land before any suit is commenced for the same, and after a suit is prosecuted against the tenant of the land for the same, Fit. champ. 15. if the same tenant do make a feoffment or other assurance to the purchasor, according to his bargain of the same land, during the time of the same suit, yet this is no Champerty: For in this case the seller did not assure this land to the purchasor, upon covenant to have Maintenance, but to perform his former bargain, and the sale was before the suit, though the performance thereof was after. And if a man do make a feoffment of land to others to his own use, 8. E. 4. 13 during the time that a suit is depending for the same land, this is no Champerty: for the feoffment was not made to have Maintenance in that suit, but to have the possession of the land to be transferred to others, and yet to the same use it was before. And a man may give land to his son in Franke-marriage, 6 E. 3. 33. or for the term of his life, during the time that a suit is depending against him of the same land, and it is no Champerty: for that the words of the statute of Anno 28. Edw. 1. be, But it is not intended, that a man shall not have counsel of pleaders, and of learned for his fee, nor of his next friends: and the father is bound to relieve and help his son as much as he may, and it is no Maintenance nor Champerty in him to assure the land to his son, nor in the son to take it. 21. Ed. 3. 52. And in a writ of Champerty it is a good plea for the defendant to plead, That he purchased the land of him who recovered it for his money, and not for Champerty to maintain the suit. And if a man do make a lease for the term of life of land, Fit. champ. 14. and after the tenant for life is impleaded for the same land, and depending that plea, the tenant for life doth surrender his estate for life to him in Reversion, this is no Champerty. 6 Maintenance may also be committed in other sorts than be aforesaid, Maintenance by Embracery viz. by Embraceors, St. 33. Ed. 1. and by juries. By the Statute of Anno 33. Edw. 1. an Embraceor is described to be one that cometh to the bar with the party, and speaketh in the matter, and is there to survey the jury: And he is accounted an Embraceor, Fit. Nat. Br. 171. who will threaten the jury, or any of them, if they do not give their verdict by his direction: and he also, who is a procuror of a jury to appear, 13. H. 4. 19 that is commonly called a leader of Inquests. And the punishment of Maintenance both in Embraceors and jurors, is assigned by the Statutes of Anno 34. Edw. 3. & Anno 38. Edw. 3. whereby it is ordained, St. 34. E. 3. 8. 38. Ed. 3. 12. That if any juror sworn in Assizes, Maintenance by jurors. or other Inquests, to be taken between the King and the party, or between party and party, do by himself, or any other, take any thing of the plaintiff, or defendant, to give his verdict, and thereof is attainted at the suit of the party, which will sue for himself, or for the king (or of any other person entering his plaint by Bill immediately before the justices before whom the jury was sworn) the said juror shall pay ten times so much as he hath received. And all those which be Embraceors to lead and procure such Inquests in the Country, The penalty of Maintenance in jurors and Embraceors. to make again and profit thereof, shallbe punished as the jurors. And if the juror or Embraceor so attainted have not wherewith to make recompense in form aforesaid, he shall be one year imprisoned, which imprisonment shall not be pardoned for any fine: and the party grieved may have his action before other justices, if he will. But no justice or other officer shall inquire of office upon any of the points of this Statute, but only at the Suit of the party, or of others, as is aforesaid. See Perjury 18. Maintenance punished by a Decies tantum. 7 Upon the foresaid Statutes of 34. Edw. 3. & 38. Edw. 3. is the writ of Decies tantum grounded. By the which writ the party grieved by any such Maintenance and taking of money by a juror or Embraceor, shall recover against the offendor ten times so much as he hath taken, whereof the King shall have the only half, and the same party who doth recover, the other half. 40 E. 3. 33. 41. Ed. 3. 9 And a man may have one writ of Decies tantum against all the jurors of an inquest, if they all did take money to give their verdict, or against so many of them as did take money. Fitz. Decies tantum 1. And so he may have one writ against the Embraceors and the jurors, and recover against every of them ten times so much as he received to give his verdict, or to embrace: as if one of them took ten shillings, another twenty shillings, a third 5. pounds etc. and the damages shall be taxed against every of them severally. And therefore when one action is brought against several jurors, for taking of money to give their verdict, every of them must plead his plea severally, 21. H. 6. 20. and by himself. If a juror do take money to give his verdict on the one part, if after he doth give no verdict, or if he with his companions do give a true verdict, or such a verdict as the party who bringeth the writ receiveth no hurt thereby, or if the plaintiff be nonsute, 37. H. 6. 31. yet a Decies tantum may be brought against him: For it is not the giving of the verdict which the Law doth respect, and punish, but the taking of the money to give his verdict, and so to do an unlawful act. But otherwise it is of an Embraceor, for if he take money to embrace, and yet doth not embrace, no action will lie against him: for he is no Embraceor, if he do not embrace. In a writ of Decies tantum, if the jury find, 41. E. 3. 9 that one of the jury in the former Issue did take land for forty pounds less than it was worth, to give his verdict, the same juror shall forfeit to the King and the party ten times so much, viz. four hundred pounds. And so shall the Embraceor forfeit ten times so much, if he hath the land for less than it is worth, after the jury hath given their verdict by his means or persuasion. And the one moiety which is due to the King in this case, according to the foresaid Statute of Anno 38. Edward. 3. 41. Ed. 3.15. Fitz. Decies tantum 12. 44. Ed. 3. 36. is a fine to the King for his offence, and not a debt to the King, and therefore the party grieved shall be first satisfied of his moiety, and after him the King shall be paid in the receipt of the Exchquer. Men that be learned in the Law, may for their fees speak to the jury, 6. E. 4. 5. and enforce their client's evidence unto them so much as they can openly, upon the trial of the cause: But they may not otherwise labour to the jury to give their verdict, and receive money to that end, for than they be Embraceors. If he that is the party grieved, who may have against any juror a Decies tantum for taking of money, do release to the same juror all actions, this will not avail the same juror, for by the said statute any person that will, being a stranger, may have a Decies tantum against the same juror. But if the King do release before any suit commenced, it is a good bar against all persons, as it is in other popular actions: 1. H. 7. 3. 5. E. 4. 2. and yet if the party hath begun his suit, the King's release will not discharge it, but for his own part: for that which was before popular, is now become his private action: and a condemnation or acquittal at his suit is a discharge against the King and all others. 8 There is another kind of Maintenance by jurors, Maintenance by Ambidexter. that the Law doth prohibit, which is, when a juror doth take money or other thing of the one part and the other, who is commonly called Ambidexter: for the punishment of whom, Sta. 5. E. 3. 10 by a statute made An. 5. E. 3. it was ordained, That if any juror in Assizes, juries, or Inquests, take of the one part, and of the other, and be thereof duly attainted, he shall not after be put in any Assizes, juries, or Inquests, but shall be sent to prison, and further punished at the King's pleasure. And the justices before whom such Assizes, juries, & Inquests shall pass, have power to inquire and determine, according to this statute. As this greedy Ambidexter doth offend two Laws, so it is provided to impose two several punishments upon him: upon a writ of Decies tantum brought against him, he shall be compelled to pay to the King and the party grieved ten times so much as he hath received to give his verdict, according to the statute of 38. E. 3. And shall be no more put in Inquests, but sent to prison, and punished at the King's pleasure, according to the foresaid statute of Anno 5. Ed. 3. But no person shall be punished according to the said statute of Anno 5. 44. E. 3. 39 Fit. Dec. tantum 12. Ed. 3. upon any writ of Decies tantum brought against him, but only upon an Indictment at the King's suit. If any juror do take money of either of the parties to a suit after his verdict given, for giving his verdict, without making covenant therefore before hand, 39 Ass. p. 19 he shall not be punished according to any of the foresaid statutes of Anno 5. E. 3. 34. Ed. 3. or 38. E. 3. for he is out of the danger of the writ of Decies tantum, and he shall not be imprisoned by force of the statute of Anno 5 Ed. 3. for he did not take money contrary to the meaning of that statute: But in that case he shall pay a fine to the king. 9 As it is Champerty, and therewith Maintenance, to have part of the land or thing in variance: so it is Maintenance to take part in any quarrel depending in suit in the King's court, or to work any fraud whereby justice may be hindered; Westm. 1. 3. E. 1. 28. as it appeareth by the statute of West. 1. whereby it is ordained, That if any Clerk of the kings, or of any justice, The penalty for maintaining of suits. do receive the presentment of any Church, for the which any plea or debate is in the K. Court, without the kings special licence, he shall lose the Church and his service. And if any justices or sheriff's Clerk, take part in any quarrel depending in the King's Court, or do work any fraud, whereby common right may be delayed or disturbed, he shall lose his service, and be further punished, if the Trespass do require. St. 32. H. 8. 9 And after by a statute made Anno 32. H. 8. there was a greater penalty imposed upon those who shall be maintainors of suits: By which statute it was ordained, That no person or persons whatsoever, shall unlawfully maintain, or cause or procure any unlawful maintenance in any action, suit, demand, or complaint in any of the King's Courts of the Chancery, starchamber, White hall, or elsewhere, within any of the K. dominions of England, or Wales, or the marches of the same, where any person or persons have authority, by virtue of the K. Commission, Patent, or Writ, to hold plea of lands, or to hear, examine, or determine any title of lands, or any matter of witness, concerning the title, right, or interest of any lands, tenements, or hereditaments: Or shall unlawfully retain for maintenance of any suit or plea, Retaining for maintenance, or embracing, or suborning of jurors. any person or persons, or embrace any freeholders or jurors, or suborn any witness by letters, rewards, promise, or by any other sinister labour or means, for to maintain any matter or cause, or to the disturbance or hindrance of justice, or to the procurement or occasion of any manner of Perjury, by false verdict, or otherwise, in any of the Courts aforesaid, upon pain of forfeiture for every such offence x. pounds to the king and Inf. to be recovered by him that will sue for the same in any of the king's Courts of Record, by Action of Debt, Bill, Plaint, or Information, wherein no W.E.P. etc. if the suit be commenced in any of the king's Courts within one year next after any such offence committed, or else not. 10 As it is Maintenance to have by agreement part of the land in variance, or part of the gains of the suit in question, so is it Maintenance to buy a pretenced right or title of another, of, or to lands or tenements, whereof the seller hath no possession, for this oft times the cause of Subornation of witnesses, procurement of Perjury, and of the subversion of justice: For the redress whereof, by the last specified Statute of Anno 32. H. 8. St. 32. H. 8. 9 it was first enacted, That all Statutes heretofore made concerning Maintenance, Champerty, and Embracerie, or any of them, then standing in force, should be put in due execution, according to the effects of the same. And also by the same statute it was over that ordained, Maintenance by buying of pretenced titles That no person or persons, of what estate, degree, or condition soever he or they be, shall bargain, buy, or sell, or by any means obtain, get, or have any pretenced rights or titles, or take promise, grant, or covenant to have any right or title of any person or persons, in, or to any Manors, Lands, Tenements, or other Hereditaments: but if such person or persons which shall so bargain, give, grant, covenant, or promise the same, their ancestors, or they by whom he or they claim the same, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents or profits thereof, by the space of one whole year next before the said bargain, covenant, grant, or promise made, upon pain that he that shall make any such bargain, sale, promise, covenant, or grant, shall forfeit the whole value of the Lands, Tenements, or Hereditaments, so bargained, sold, promised, covenanted, or granted, contrary to the form of this Act. And the buyer or taker thereof knowing the same, shall also forfeit the said value of the said Lands, Tenements, or Hereditaments, so by him bought or taken, as is aforesaid: the one half of the said forfeitures to be to the king, and the other half to the party that will sue for the same, in any of the king's Courts of Record, by Action of Debt, Bill, P. or I. etc. wherein no W. E. P. or I. etc. if the suit be commenced by A. B. P. or I. in any of the king's Courts, within one year next after any such offence committed, or else not. Provided always, The possessor purchaseth a pretenced title. That it shall be lawful to any person or persons, being in lawful possession, by taking of the yearly ferme, rents, or profits of any Manors, Lands, Tenements, or Hereditaments, to buy, obtain, get, or have by any reasonable means the pretended right or title of any other person or persons to be made to, of, or in any such lands, tenements, or hereditaments, whereof he shallbe so in lawful possession: Any thing in this Act etc. notwithstanding. 22 & 23. El. Dyer 374. 6. Ed. 6. Dy. 74. Blow. Come 87. 11 If a man take a lease or promise a lease for the term of certain years to another of land, contrary to the foresaid statute of Ann̄ 32. H. 8. What is selling of a pretenced title. viz. of those lands, whereof neither he himself, nor any of his ancestors, nor any by whom he doth claim the same land, have been in possession of the same, nor of the reversion, nor remainder thereof, nor taken the rents or profits thereof by the space of one whole year before the said bargain, grant, and demise made, he is within the danger of the foresaid statute of Anno 32. H. 8. as well as if he had made an estate for the term of life, in tail, or in fee simple of the same land: for that the scope and effect of the statute is utterly to root out of Maintenance, and bargains and promises of Titles, for the which the words of the statute be, That no person shall sell or buy any pretenced rights or titles. And a lease is no more lawful for one year, then for an hundred years: and some man will be as ready to maintain to have a lease for years, as to have a greater estate. Wherefore he that doth make a lease for years, or make promise of a lease for years of lands, whereof he hath but a pretenced right or title, shall forfeit to the King and him that will sue, the whole value of the inheritance of the land, as well as if he had bargained and sold the fee simple thereof. But it is specially to be respected in that case, that he hath but a pretenced right or title at the time of his Lease made: for if he hath a good title in the same land at the time of the said Lease, then is he not within the danger of the said Statute, though neither he himself, nor any of his ancestors, nor any by whom he doth claim the same land, have been in possession thereof, nor of the reversion or remainder thereof, nor have taken the rents or profits thereof by the space of one whole year before the said Lease made: For if a man do enter into lands that be holden of him, for an alienation in Mortmain: Or if he do recover lands by a real action, he may sell the same land, or make a Lease of the same land within a year after the Entry or Recovery, though neither he, nor his ancestors, nor they by whom he claimeth the same land, have been in possession thereof, nor taken the Rents or Profits thereof, by the space of one whole year before. Br. Maint. 38 6. E. 6. And so it is, if a man do mortgage his Land for divers years, upon condition of repayment of money at a certain day, or upon any other condition. If after he do redeem his Land, he may sell it, or Lease it within one year after, though he hath not been in possession thereof, nor taken the Rents or Profits thereof by the space of many years before: For the meaning of the Statute is not to restrain the bargaining, buying, or selling of good and clear Rights, but of pretended Righs and Titles. And this pretenced Right or Title is, What is a pretenced title. when one man is in possession of Lands or Tenements, and another man who is out of possession of them, doth claim them, or doth sue for them: for he is not aptly said to have title to land, who is in possession of the same. And therefore if he that is out of possession of land, doth bargain, sell, or make any Agreement, Covenant, or Promise to departed from the same land, or to make any assurance thereof, after he shall recover the said Land, he is within the danger of the said Statute, whether he hath a good title to the same land, or not. And so it is, if one who hath a pretenced Right or Title to copyhold Lands, doth bargain and sell it to another, Co. lib. 4. 26 he is within the compass and danger of the foresaid statute of Anno 32. H. 8. For the words of the statute be, If any do bargain, buy, or sell etc. any right or title in or to any lands or ténements: So that those words (any right or title) do extend to all manner of rights or titles, and consequently to copyhold lands. And seeing a great part of the land of the Realm is granted by copy; Therefore the meaning of the makers of the said Statute of Anno 32. H. 8. was to include them, for the avoiding of Suits, Maintenance, and Champerty, and not to leave all copyhold estates to the mischiefs mentioned in the preamble of the said Act. Maintenance by giving of Liveries and retaining. 12 Giving of Liveries, Badges, Signs, and Tokens, and retaining of unnecessary servants, is an evil bud springing out of the foresaid Branch of Maintenance, being put in practice by men of great countenance, authority, and estate, and it hath been from age to age accounted a mean to stir up quarrels, to bolster Suits, to procure Perjury, and to subvert justice. And therefore the chief Governors of this Realm have endeavoured by many Acts of Parliament to repress or snib it: as by the Statute of Anno 1. R. 2. & 7. Hen. 4. it was ordained, St. 1. R. 2. 7. 7. H. 4. 14. That if any person shall give any Chaperons, Hats, or such like Liveries to any man for maintenance of quarrels, or other confederacies, he shall forfeit an hundred shillings for every such Livery: and he which receiveth such Livery, shall forfeit forty shillings. And by the statute of 8. H. 6. it was enacted, Sta. 8. H. 6. 4 That if any person of his own authority and proper costs do buy, or wear for his clothing any Clothes or Hats, called Liveries, of the sort or suit of any Lord, Lady, Knight, Esquire, or other person, to have supportation, succour, or maintenance in any quarrel, or in any other matter, and being thereof lawfully convict, he shall forfeit forty shillings, and be one year imprisoned. And by the statute of Anno 1. H. 4. it was provided, St. 1. H. 4. 7. That if any which is a Knight or Esquire, menial of the Kings, or who is of his retinue, to whom his Majesty shall give his honourable Livery, do wear his said Livery in the country or County where he is resiant or dwelling, or in any other place of the Realm out of the King's presence (saving in going or coming from the King's house) and is thereof duly attainted, he shall lose his Livery, and forfeit his fees for ever. And by the statute of Anno 8. Ed. 4. it was established, Sta. 8. E. 4. 2. Sta. 1. H. 4. 7. That no person by himself, or any other for him, shall give any Livery, or Badge, or retain any person, other than his menial Servant, Officer, or learned man in the one Law or in the other, by any writing, oath, or promise: And if any do the contrary, he shall forfeit for every such Livery or Badge given an hundred shillings. And he which doth retain or take of any other such oath, writing, or promise, or is retained by Indenture, shall forfeit an hundred shillings for every month that any person is so retained with him, by Oath, Writing, Indenture, or Promise. And every person which is retained by Writing, Indenture, Oath, or Promise, for every month that he is so retained, shall forfeit an hundred shillings. But this act shall not extend or be prejudicial to any Gift, Grant, or Confirmation made of any Fee, Annuity, Pension, Rent, Lands, or Tenements by the King, or any others, to any person or persons, for their counsel given, or to be given, or for their lawful service done or to be done (and for no other unlawful cause, or unlawful intent) although the person to whom such gift, grant, or confirmation is made, be not learned in the one law or the other: Neither doth it extend to any liberty given at the Kings or queens coronation, or at the installment of any Archbishop, or Bishop, or erection, creation, or marriage of any Lord or Lady of estate, or at the creation of any Knights of the , or at the commencement of any clerk in an University, or at the creation of sergeant of the law, or given by any Fraternity, Guild, or Mystery corporat, or by the Mayor, Sheriff, or other chief Officer of any City, Borough, Town, or Port of this Realm of England for the time being, during that time, for the executing of their office or occupation: Nor to any Liveries or Badges, given in the defence of the King and his Realm: Nor to the Constable or Marshal for giving any Badge, Livery, or token, for any feats of arms to be done within this Realm: Nor of any Wardens of the Marches toward Scotland, for any Badge, Livery, or token by them given, from Trent Northward, at such time only as shall be necessary to levy people for the defence of the Marches. St. 7. H. 4. 14 And by the stat. of anno 7. H. 4. it was ordained, That no congregation or company shall make any Livery of cloth, or of hats, at their own costs, upon pain that every of the same congregation or company, shall forfeit forty shillings (except Guilds and Fraternities, and also people of Arts and Sciences within Cities and boroughs, which be ordained to a good intent. 13 As the wisdom of the Realm hath established from one age to another the foresaid laws and statutes, Publishing, enquiring of, and punishing of maintenance for the repressing or snibbing of Champerty, Embracerie, buying of titles, and all other sorts of Maintenance: so hath she provided trumpets to sound out and publish those laws into the ears, and sink them into the hearts of all people: and secondly she hath assigned watchmen and sentinels, to see who infringed those laws: and lastly she hath ordained Censors and judges to punish the offenders therein; as it appeareth by the before specified statute of anno 32. St. 32 H. 8. 9 H. 8. whereby it is enacted, That the justices of Assize shall in every County within their circuits, two times in the year, viz. in the time of their sit for taking of Assizes, or delivery of the gaols, cause open proclamation to be made as well of the said statute, and every thing therein contained, as also of all other statutes heretofore made against unlawful maintenance, champerty, embracery, or unlawful retainers, to the intent that no person hearing the same, should be ignorant, or misconisant of the damages and penalties therein contained. And by the former rehearsed statute of anno 8. St. 8. Ed. 4. 2 E. 4. it is ordained, That every person which will sue against any other, for any offence committed contrary to that statute, or any other of the premises (viz. any other ordinance or statute before that time made against any persons for giving or receiving of Liveries or Badges) before the King's justices in his Bench, before the justices of the Common Pleas, justices of peace in their Sessions, justices of Oier and Terminer, and jail delivery, justices of the county Palantine of Lancaster and Chester, and in the Court of Hexamshire, and in the Court of the Bishop of Durham in the County Palatine of Durham, shall be admitted thereunto by the discretion of the said judges, to give information for the king of any of the premises committed within the jurisdiction of the same Courts. And every Informer shall be admitted to sue for the King and himself, action or actions upon the same, by information in any of the said Courts, against as many such offenders in one Bill of Information as liketh him, which Information shall be in stead of a Bill, or original writ, wherein such Process shall be awarded, as in an original writ of Trespass (but that in the Counties Palantine of Lancaster and Chester, nor in Duresme, no Exigent shall be awarded upon any information, suit, or process, to be made by force of this ordinance.) And if any be, or any outlawry thereupon pronounced, the same shallbe void without any writ of Error. And if any of the offenders be present in any of the said courts, any of the justices may command him to be brought to answer to such bill upon such information (by an oath first to be taken upon a book by such informer, before some one of the judges, that his complaint is true) without any other or further process therein. And every of the same judges within his jurisdiction may by his discretion examine every of the defendants upon such information, and judge him convict as well by examination, as by trial, and the King shall have the one half of the forfeiture (if it be not in a city or town corporat, that hath the same by the grant of the king, or etc.) and the informer the other half, which also shall recover his costs by the judges discretion, and execution thereof, as in recoveries upon debt or trespass, wherein no essoin or Protection shall lie. And the Mayor, Sheriff, bailiff, or other chief officer of every city, borough, town, or port within this realm, having power to hear and determine personal pleas in the court holden before them, or any of them, within any such town, have authority to receive information of any person which offends in the premises, and to hear & determine as well by examination as by trial, all things done concerning the same, by, or to the inhabitants within the jurisdiction of the same court, & to put this stat. for those offences provided, in execution. And the King shall have the one moiety of all penalties forfeited by the said stat. and the Informer & chief officers of such city, borough, etc. shall have the other moiety, equally to be divided betwixt them. And the said chief officers part shallbe employed to the use the said city, borough, town, or port, etc. And sithence the foresaid laws & statutes, by one other stat. ordained an. 33. Iust. of peace may inquire of and punish maintenance. H. 8. and confirmed an. 37. H. 8. it was enacted, St. 33. H. 8. 10. 37. H. 8. 7. That Iust. of peace at their Quarter Sessions, shall have authority to inquire as well by the oaths of xii. men, as by information given to them, by any person or persons, of defaults, contempts, & offences committed against the laws & statutes made and provided concerning, or in any wise touching retainers, giving of liveries, signs, tokens, or badges, maintenance, embracery, etc. and every of them, & to hear & determine the said defaults, offences, etc. And upon any information touching the penalties, or any of them, to make process by Venire fac ', one Capias & an Exigent under their seals, against every such person & persons against whom such information or presentment shallbe had, for their appearance before them in their Sessions, to answer to such information or presentment as shall be there made. And if the person or persons so accused by information or presentment shallbe convicted upon such information or etc. by confession, or verdict of xx. men, than the said Iust. have power to give judgement, against every such offendor so convicted, of imprisonment, forfeiture of money, or both of them, as are limited by the said several statutes for such offences whereof they are convict, and to cause execution thereof to be made accordingly. Why the pursuing of maintenance is left out of the stat. of 18. El. 14 Maintenance, Champerty, buying of titles, & Embracery, have been accounted so offensive & professed enemies to the justice & peace of the realm, that though by the stat. of an. 18. El. it is ordained, Stat. 18. El. 5 That every informer upon any other penal stat. shall exhibit his suit in proper person, & pursue the same only by himself, or by his Attorney in court: and that none shallbe admitted to pursue against any person upon any penal stat. but by way of information or original writ, and not otherwise, nor shall have any deputy at all. And that upon every such information which shallbe exhibited, a special note shall be made of the very day, month, & year of the exhibiting thereof into any office, or to any officer which lawfully may receive the same, without any manner of antedate to be made thereof: And that upon every such process shallbe endorsed aswell the party's name that pursueth the same process, as also the stat. upon which the information in that behalf made, is grounded, and that no Informer or plaintiff shall compound or agree with any person that shall offend, or shallbe surmised to offend against any penal statute, for such offence, but after answer made in court unto the information or suit in that behalf exhibited or prosecuted: nor after answer, but by the order or consent of the court, in which the same information or suit shallbe depending: Yet in the said stat. of 18. El. there is a proviso, That it shallbe lawful for any person or persons grieved by means of any maintenance, champerty, buying of titles, or other embracery, to pursue upon any stat. provided against maintenance, champerty, buying of titles, or embracery, as he or they might have done before the making of the said act. Which proviso was made to the end that all persons grieved by reasons of any maintenance, champerty, buying of titles, or embracery, should be left at liberty to pursue & chasten the offenders therein, by all such means as former laws have authorised them, & not be restrained by any of the ordinances or articles before rehearsed, for that the said offences were by the makers of the said stat. adjudged to be greater impediments & obstacles to the execution of justice, than other penal stat. were. 15 As the policy of the realm hath devised the foresaid popular actions and suits to enable every person that will, Assurances to have mainte void. in divers cases to pursue & prosecute maintainors, champertors, buyers of pretenced rights, etc. to the intent the sooner to root out & extirpate those offenders who endeavour to wrest the execution of laws out of their due course, to subvert justice, & thereby to hinder the peace of the realm: so hath it in some cases gone further, & ordained, that some assurances made for maintenance, shallbe presently void: as it appeareth by the stat. of an. 8. St. 8. H. 6. 9 H. 6. whereby it was enacted, Lands gotten by force assured to have maintenance. That if any person after his entry into lands or tenements, holden with force, do make a feoffment or other discontinuance to any Lord, or other person, to have maintenance, or to toll & defraud the possessor of his recovery in any wise: If alter in an Assize, or other action thereof to be taken or pursued before the Iust. of Assize, or other the king's justices whatsoever they be, by due inquiry thereof to be taken, the same feoffements and discontinuances may be duly proved 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. & held 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 use, or in another's right, to his use, by the way of maintenance, & thereof is attained at the suit of the party grieved, he shallbe one year imprisoned, & pay to the party grieved his double damages: And also he shall answer to the party grieved damages for his goods & cattles, if upon the said forcible disseisin he took away any. 16 As by the before mentioned stat. maintenance, champerty, What maintenance is punishable, and what justifiable. embracery, & buying of titles, be in general terms deciphered, together with their several penalties, so have the learned judges & Sages of the law expounded the particular branches of every of those stat. as they grew in question, & were prosecuted in suit before them, & also resolved what maintenance is punishable, and what justifiable, who may pursue an action, writ, bill, or information etc. of maintenance, champerty, etc. against whom the same is to be brought, for what offence or cause the same is maintenable, what pleas are to be pleaded to the writ, or in bar of the said actions, writs, informations, etc. & what judgement shall ensue thereupon. As every champerty is an unlawful maintenance, 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 every champerty is a maintenance, & the party grieved may have aswell a writ of Maintenance as of Champerty, for by that means the champertor having bargained to have part of the land or thing in question, doth ofttimes move & further the suit, suborneth witnesses, corrupteth the jury, and so subverteth justice: but there must be a suit depending before it can be adjudged maintenance in any sort: for if one man will give money to another to begin 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 money was given when there was no suit depending: and if there be a writ brought and never returned, it is no maintenance. No maintenance in a juror for giving his verdict. 17 If there be a suit depending between two, and they do join an issue, 18. E. 4. 2. 28. H. 6. 6. which is tried by xii. men, & found for the plaintiff: in this case the defendant cannot have an action of maintenance against the said jurors, or any of them, for this verdict given, for that they gave their verdict according to their evidence, and their knowledge of the truth of the matter: and beside they did not thrust themselves into that cause, but were compelled to appear by an ordinary course of law, being impanelled & returned by the Sheriff, or some other lawful officer: Maintenance by a juror suing for judgement. but if after the verdict given any of the jury will solicit or labour to the judge or judges of the court where the said suit is depending, to give judgement for the plaintiff, than the def. may have an action of Maintenance against him, for that the same judgement is a thing wholly belonging to the office of a judge, and not of a juror, & therefore he doth therein intermeddle with another man's office and another man's cause, more than he hath to do or may justify, and so hath committed unlawful maintenance. Maintenance in a juror. 18 If a jury be charged to inquire of a matter in issue, 17. E. 4. 5. 18. Ed. 4. 4. one juror may persuade his companions, or any of them, to pass for the plaintiff or def. as he conceiveth the truth of the cause to be, or as their evidence doth induce them, & this is no maintenance: but if one of the jurors will give or promise money to another of his fellows, to give his verdict for the pl. or def. this is unlawful maintenance, though he doth wage him to give his verdict according to truth, and right of the cause in issue. Maintenance by speaking of words. 19 If a man of great authority in a country will in the presence of a jury, 22. H. 6. 5. 13. H. 4. 19 and the standers by at the trial of an issue say openly, that he will spend money in the cause in question, in the behalf of the pl. or the def. or that he will give money to labour the jury, or will speak other great or high words, in favour of one of the parties, this is unlawful maintenance in him, though he do spend no money in that cause, nor doth labour the jury therein: for it may be, that when the jury do by his words know his meaning, they dare not in respect of his authority or greatness in that county, give their verdict otherwise than he would have them. None shall sit with the Iust. of Assize on the bench. And for the prevention 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 upon the bench with the Iust. of Assize in their Sessions, in any of the Shires of England, upon pain of a great forfeiture to the King: neither the justices shall suffer the contrary to be done. Maintenance in coming to the bar with one of the parties. And in like sort if a man of great authority in the County where an Issue is to be tried, having nothing to do in that cause, doth come to the bar with the plaintiff, or defendant, 22. H. 6. 6. that is one of the parties to an Issue that is then to be tried, and standeth by him, this is an unlawful maintenance in him, though he neither doth, nor yet speaketh any thing in the matter: for his presence and company with the one party, doth show to the jury his particular affection to the same party, and doth ofttimes induce them to favour, as much as labour and persuasion by words could do. And though the jury do not respect him, but give their verdict for the other party to that suit, according to their evidence and the truth of the cause in question, yet he hath done what in him lieth to the contrary. 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 join in issue, Maintenance by giving of money to labour a jury. and the Master of one of the parties to that issue, or any other will deliver money of his own to a stranger, to labour the jury impanelled to try that issue, to give their verdict for his said servant or friend: this is maintenance unlawful in the Master or other, though the party to whom the money was given, did never deliver it to the jury, nor did not labour unto them in such sort as he was directed, or though the jury did give their verdict against his said servant: for when the Master had delivered the money to the stranger, and told him to what purpose he should use it, he had done as much as he could do in that suit, to hinder the course of justice, though his direction took no success according to his desire. And also it is unlawful maintenance, if one give money to a man that is impanelled of a jury to give his verdict on the one side, though that party impanelled doth not appear, or do appear, and is drawn out by challenge or otherwise. 22. H. 6. 6. And it is maintenance unlawful, if one do threaten to kill or beat a juror, if he do not give his verdict for the one part to that issue, which he doth name, though the same juror do otherwise. 28. H. 6. 6. 21 If a jury do come to a man's house, What is maintenance in a witness, and what not. and desire him to inform them of the truth of a matter whereof they do doubt, and he doth inform them thereof, this is justifiable: But if one do come to a jury, or of himself do labour to inform them of the truth of a cause in question, this is maintenance unlawful, and therefore punishable. And so it is, if the Court be informed by the plaintiff or defendant when an issue is to be tried, 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 testify the truth of that cause in question to the jury, and the Court, doth cause him to be called to testify his knowledge therein, and he at the commandment of the Court delivereth that which he doth know in that matter, this is maintenance justifiable: But if the same party will come to the bar of his own head, and testify for the plaintiff, or the defendant, this is unlawful maintenance, and he 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 he that is indicted may have a writ of Maintenance against the procurer of that indictment, and yet this is no quarrel, 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 between the King and the party indicted: and the foresaid statute is general, that it shall not be lawful to any person great or small, to maintain quarrels, 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 appearance, the mainpernor may come into the Court and see the appearance of the same party recorded, and justify the same in a writ of Maintenance brought against him: but he cannot retain or entreat a man learned in the law to be of counsel with the principal party, nor meddle further in that cause, than to see the mainprize performed, and himself discharged. Maintenance in respect of his interest in the land. 24 Every person that hath any interest in land, may meddle and maintain him who is impleaded for the same land, and not be punished therefore in a writ of Maintenance: As if tenant for term of life, or in tail of land, be impleaded for the same land, or any part thereof, Bro. Maint. 53. he in the reversion or remainder thereof, may at his own charges maintain him in that suit, for the safeguard of his own estate; for it is in a sort his own case, and the defence of it is to his own benefit, and the eviction to his own disheritance. But this maintenance must be after tenant for term of life hath atturned unto him in the reversion: for i● he maintain the suit before, it is punishable in him. 9 H. 6. 64. And so it is, if a man being seized of land, hath issue a daughter, who is married to another, if the father in law be impleaded of that land in a real action, the son in law may maintain him at his own charges; for that by possibility that land may after the decease of his father in law descend to his wife, and so come to him in her right. But if the daughter die without issue of her body begotten by the said husband, before the said suit commenced, 14. H. 7. 2. 6. E. 4. 5. 19 E. 4. 3. than the son in law cannot maintain the father in law in that suit: Neither can he maintain him during the life of his wife, if an action of Debt, covenant, account, or any other personal action be brought against him: for he is neither to take benefit or loss by any of those suits. 6. E. 4. 2. 39 H. 6. 20. And if a man seized of land make a lease for certain years of the same, and after a suit is commenced between the said lessée for years, and a stranger, touching the same land, or any part thereof, the lessor may give evidence for the lessée, upon the trial of the cause in question, or otherwise may maintain him in that suit, at his own charges, for it tendeth to his own private benefit or loss. And in some case a man may maintain a suit lawfully, though he be neither heir to the land, nor in possession, reversion, Maintenance in respect of his possibility. or remainder thereof: As if a man being seized of land, 9 H. 6. 64. do make a lease thereof to another, for the term of the life of the lessee, and after doth grant to a stranger, that if the said tenant for term of life do die during the same lessors life, that then the same stranger shall have and enjoy the same land for the term of xx. years after the death of the same tenant for life; if in this case the tenant for life be impleaded for this land, the same stranger may maintain him for the saving of his own estate for years, and yet he hath no certainty, but a possibility of a term for years, which peradventure will never chance. And likewise in some other case a man may maintain a suit lawfully, though he be neither in possession, reversion, remainder, or possibility of the thing in question: Maintenance in respect of his warranty As if a man be seized of a rent going out of another persons land, 11. H. 6. 49. to him and to his heirs, and by his deed doth grant the same to another and to his heirs, with clause of warranty, and the tenant of the land out of the which this rent is issuing, doth attorn to the grantee of this rent, if after the grantee be impleaded of this rent, upon trial of the issue the grantor may come into the Court, and show to the jurors such evidence as he hath to prove the title of this rent; and it is lawful maintenance, and not punishable in him, though he was neither called into the Court by voucher to warranty, or by Warrantia Chartae. And so might he have done, if he had been called to warranty by any of the means aforesaid, upon a warranty made of land or rend: for it is to preserve himself out of danger, and from recompensing in value of that whereof before he had made warranty. 25 As it is in lands and leases, so is it in rents, goods, and debts, Maintenance in respect of his rent. for every person that hath interest in them may meddle, and maintain and defend him who is impleaded or prosecuted by suit, or doth implead or prosecute by suit any other, for any matter or cause concerning him, or whereupon he doth depend, so that the same suit doth tend to impeach, prejudice, or trouble his estate therein, or may redound to his benefit or profit, or may be a mean thereof: 9 H. 6. 64. As if a man have a rend charge in fee out of certain lands, and another man hath in custody a box of writings concerning the same rent, and after he that hath the rent doth grant it to a stranger and his heirs, to the which grant the tenant of the land charged doth attorn; and moreover, the grantor of that rend charge, doth grant to the assignee of the same, that if he can recover the same box of writings, that then the same assignee shall have them: If after this grant the grauntor doth pursue a writ of Detinue against him that hath the custody of this box of writings, he to whom the same rend charge was granted, may lawfully maintain him in that suit, for that by promise he is to have the same box of writings, if it be recovered, for the preservation of his estate in the said rend charge. 11. H. 6. 47. And a Lord may maintain his tenant if he be impleaded for his freehold, A Lord may maintain his tenant. in respect of his rent and services that he is to receive and have of him. And so it was before the Statute of Uses, made anno 27. H. 8. if a man had made a feoffment of land to others, to his own use, the feoffor might maintain the freehold tenant which held of his feoffees, in respect of the use which he hath in the rent and service of that tenant. 15. H. 7. 2. 26 And the same law is touching debt: As if A. do own unto B. xx. l. and C. do own to A. xx. l. due by Obligation, Maintenance in respect of debt. and A. will deliver unto B. the same Obligation, in satisfaction of the xx. l. which he doth owe him: In this case B. may sue an Action of Debt upon this Obligation against C. in the name of A. and retain an Attorney and learned counsel, and pursue and maintain the suit, and so may A. for either of them hath interest in this debt: and one of them may aid, assist, and maintain the other, to recover his debt against C. in respect of their several interests in the same debt. But if in this case A. had promised to B. but part of this debt, to have prosecuted and maintained this suit, than it had been Champerty, and unlawful maintenance in B. And the same law is, 34. H. 6. 30. if one man be bound by Obligation to pay another man xx. l. to the use of a third man: the Obligée, and he to whose use the Obligation was made, may both meddle in the suit of this Obligation. 27 And so it is in goods: for he that hath any property, title, Maintenance in respect of his title to goods. or lawful possession in goods, 39 H. 6. 20. may maintain a suit that is prosecuted against another touching the same goods: As B. brought an action of Debt against A. in London, and the Sheriff returned that A. had nothing &c. Whereupon at the plaintiffs surmise, certain goods of A. were attached in the hands of I. according to the custom of the said City, and a Scire facias was awarded against the same I. to answer for those goods, in which A. did maintain the same I. in nominating unto him a learned man in the law, to whom by his advice he went for his counsel, and this was awarded maintenance justifiable, for that the property of the goods fo attached in the hands of I. were, and did continue in the said A. Maintenance in detaing of a writing delivered in trust. So it is if one man do deliver a deed or other writing to another to be kept, if a stranger will bring an action of Detinue against him to whom the same was delivered, the party who delivered that writing, may lawfully maintain him in that suit, for the interest he hath in the same writing. And yet the recovery of that writing would not have bound him that did deliver it, but he might have had his action for the same against him that did recover it. Maintenance in respect of his joint interest with others. 28 As every person may lawfully maintain any suit that shall be prosecuted, which concerneth his private and particular land, lease, rent, debt, or goods, so may he maintain a suit touching any land, or other thing, which he hath jointly or in common with others: 18. E. 4. 2. As the Parson of a Church brought an action of Trespass against one of his Parishioners, for digging of his ground, and spoiling of his grass: Whereunto the defendant pleaded, That the place where the Trespass was supposed to be done, is a Churchyard, consecrate by the Bishop, and that he, and all those who are inhabitants in the same Parish, have used to have their Sacraments and burial for their dead there: And that one of the inhabitants of the same Parish died, and he with others brought his body to the Church, and after made a grave for him in the same Churchyard, and there buried him, which is the same digging whereof the plaintiff hath conceived his action: Whereupon they were at issue: In this case it was agreed by all the justices, that every inhabitant of the same Parish may lawfully give evidence, and otherwise maintain this issue, though they be not parties thereunto: for every of them hath the like interest in the Churchyard, Maintenance by all the inhabitants of a parish. as the party to that suit. And the same reason and law seemeth to be, if there be a suit commenced between one or more inhabitants of a village, Hamlet, or Parish, and some other person or persons, for a common or way, or for the digging of a pit of stone, marl, gravel, mortar, sand etc. used, or claimed to belong, or of right to be due to the inhabitants of the same Village, Hamlet, or Parish; after issue joined touching the right or title of the same common, way, or pit, the residue of the inhabitants of the said Village, Hamlet, or Parish, may aid, and assist their neighbour or neighbour's party to that issue, and it is lawful maintenance, for it tendeth to the benefit or prejudice of all the said inhabitants, and is in a sort their own case. Maintenance of a poor man in his suit. 29 In a Writ of Maintenance the plaintiff supposed that the defendant did maintain one A. in an action which the plaintiff brought against the said A. Whereunto the defendant pleaded, That the same A. was a poor man, 32. H. 6. 35. 21. H. 6. 15. and had nothing to defend himself in the suit which the plaintiff had commenced against him, and that the defendant of his alms gave him xx. s. which is the same maintenance. This was allowed a lawful maintenance, and justifiable for any man to do: for whereas unlawful maintenance is in case when a man doth maintain a suit, to have the whole or parcel of the land, 9 H. 6. 64. or thing in question, or to have some other consideration to further or uphold that suit, or where a man having nothing to do, nor colour to meddle, yet will undertake for evil will to maintain that cause in question; this giving money to a poor man to defend his right, is not to either of the intents aforesaid, but bestowed upon a charitable disposition, to search out truth, and further the execution of justice: which appeareth by the stat. of 11. H. 7. wherein the king and the whole parliament willing indifferent justice to be ministered, according to the common laws, as well to the poor as to the rich, and perceiving that the poor were not of ability to sue according to the law of the realm, for the redress of their injuries and wrongs, ordained, that the king himself, the L. Chancellor, and some of each profession towards the law, should in a sort aid and assist them: the words of which stat. be these, St. 11. H. 7. 12 viz Every poor person which shall have cause of action against any other, shall have by the discretion of the Chancellor, Process, counsellors, and Attorneys assigned to aid the poor. writs original, & writs of Subpena, according to the nature of his cause, nothing paying to the K. for the seals of the same, nor to any person for the writing of the same writs. And the said Chancellor shall assign such of the clerks, which shall use the making and writing of the writs, to write the same ready to be sealed, and also learned Counsel & Attorneys for the same, without taking any reward therefore. And after the said writs be returned, if it be before the King in his Bench, the justices there shall assign to the same poor person counsel learned by their discretions, which shall give their counsel, nothing taking for the same. And likewise the justices shall appoint Attorneys for the same poor person, & all other officers requisite to be had for the speed of the said suits, which shall do their duties, without any rewards for their counsels, help, and business in the same. And the same law and order shallbe observed in all such suits to be made before the K. justices of his Common pleas, & Barons of his Exchequer, and all other Iust. in Courts of Record, where any such suits shall be. 30 As Maintenance in the cases aforesaid is lawful and justifiable, Maintenance in respect of kindred or alliance. in respect of the parties private profit or interest in the thing in question, or when it is done without malice or hope of profit, upon a charitable disposition, so is it in divers cases allowable, in regard of the link or bond of nature, whereby one person is by love or duty tied to another; 34. H. 6. 26. 6. Ed. 3. 33. as the father may maintain his son and heir, and give money of his own in defence of him, or his title, or suit, for he is bound to find him: but so he may not do for another kinsman. And the son may maintain the father and mother, and one brother another, and one near kinsman another, 21. H. 6. 16. 14. H. 7. 2. 20. H. 6. 1. 19 Ed. 4. 3. 21. H. 6. 16. and one alley another, in some cases, and in some sort: as if a man be impleaded, another that is his brother, or kinsman, or of his alliance, may go to the bar with him, & stand by him, & comfort him: or he may ride to his counsel with him, or he may request a man that is learned in the law, to be of counsel with him in that cause: 9 Ed. 4. 32. but he must not retain that learned man, nor give him any money of his own to be of counsel, neither must he give or promise money to the jurors, or any of them, to give their verdict for him, for than it is unlawful maintenance in him: & so it is in a stranger, who hath nothing to do in that cause; if he do go to the bar with him that is impleaded, or do stand by him of purpose, for to countenance the cause in question, or do request a learned man in the law to be of counsel with him, or do give money to any of the jurors for their verdict, this is unlawful Maintenance in him. And in the cases aforesaid, and all other cases of Maintenance, Unlawful maintenance is continual. this unlawful Maintenance is a continual Maintenance during that suit, unless the party grieved do in the mean time release the same. But if the same Maintenance be in respect of alliance, and that he who is supposed to be the maintainor, hath married the daughter, sister, niece, or other kinswoman of one of the parties to the first suit wherein the maintenance was supposed be, he must plead, 6. Ed. 4. that his wife was living at the time of the maintenance supposed to be: for if she were then dead, the alliance between them is dissolved, and then he had no cause to maintain that suit, but shallbe punished as a stranger. And yet in that case, 14. H. 7. 2. if the same woman hath any issue of her body begotten, who may inherit the land of him whose suit that husband of the deceased woman, and the father of that issue did maintain, then is the maintenance lawful in any action brought against the same party, in respect of the kindred, and also of the benefit that may come to his own issue. And in a writ of maintenance it is a good plea for the defendant to plead, Maintenance in respect of gossiprie. that he was gossip to him whose cause he was supposed to maintain, 6. Ed. 4. 5. for that gossiprie is in law adjudged a kind of affinity. Maintenance in respect the party could not speak English. 31 A. brought a writ of Maintenance against B. and supposed, 34. H. 6. 26. 15. H. 7. 2. that the same B. did maintain L. in an action which he brought against the said L. on the part of the said L. Whereunto the said B. pleaded, that the same L. was a Dutchman, borne out of the King's obedience, and could not speak the English or Latin tongue, and therefore being acquainted with B. the defendant, who could speak the Dutch tongue, he desired him to bring him to some man learned in the law, to be of his counsel in that suit, and to inform that learned man of the truth of his cause in question: whereupon he brought him to one M. a man learned in the law, and opened the truth of his case unto the said M. as he received it from the said L. in Dutch, which is the same maintenance. And this was adjudged a good plea in bar, and a lawful maintenance: for it is a deed of charity to aid and help him who could not help himself. And the Dutchman had no means to help himself, being a stranger borne, and not understanding the English nor Latin tongue, but by the assistance and information of some English man. Maintenance in a professor of the Law. 32 If a Sergeant at law, an Apprentice, or other Councillor, 6. Ed. 4. 5. being retained for his fee, do give unto his Client the best counsel that he can for the recovery or defence of the suit which he undertaketh, according to the ordinary course of the law: or doth enforce the evidence at the bar so much as he can, at the trial of his client's cause, this is lawful maintenance, and justifiable: But if he do pay or promise money to any of the jury, to give his verdict for his client, or do threaten any of them to be killed, beaten, 22. H. 6. 6. or otherwise evil entreated, if they do give their verdict against his client: or if he do spend, 11. H. 6. 13. or do offer to spend his own money in defence of his client's cause, this is unlawful mainnance, and punishable according to the before rehearsed stat. of ann. 1. R. 2. for those things he doth not as a lawyer, or according to the course of the law, nor by the warrant of law, but by injustice, and upon his own corruption and wrong. But in the first specified case, if a man that is not learned in the law, 22. H. 6. 5 having himself no interest in the cause in question, will declare to the jury, or to the party, or to his counsel, the cause in question, and the circumstances thereof, as a man learned in the law, this is unlawful Maintenance in him, though he do it as well as a man learned in the law: for he doth it upon Maintenance, where the learned man doth it for his fee. And so it is, if a man that hath land in suit or question, will bring and show his evidences and writings to a Nobleman, Fitz. Maint. 21. Gentleman, or other man of countenance, that is not learned in the law, and request his opinion of them, whether they will serve to defend his title in the cause in suit, and the party doth affirm them to be good and sufficient in law, to justify and maintain his cause, this is unlawful maintenance in that person who giveth this counsel, for by this means the party may be encouraged to prosecute or defend a suit which the law will not warrant him to effect. Co. li. 1. 177 And if L. being a man that is not learned in the law, will publish that B. hath good right and title to the Manor of D. whereas in truth B. hath no good right & title thereunto, but C. hath the only right & title to the same: in this case because L. hath taken upon him the knowledge of the law, and intermeddled in a matter wherein he hath nothing to do, C. may have an action upon the case against the said L. for slandering of his title, and shall recover his damages against him, and his ignorance of the law will not excuse him. 33 In an Action of Maintenance the plaintiff declared, Maintenance by an Attorney. That the defendant maintained one B. in the court of L. in an action of Covenant, 36. H. 6. 37. which the plaintiff brought against the said B. in the same court. Whereunto the defendant pleaded, That he was retained to be the Attorney of the same B. in the said suit which the plaintiff did prosecute against him, by force whereof he came to a man learned in the law, by the commandment of the said B. his client, and desired him to be of counsel with the said B. and gave him his fee of the money of the said B. the which is the same maintenance. And this was adjudged maintenance justifiable: for when an expert and learned man is Attorney for another, he is to do all lawful things which he can touching that suit, for the benefit of his client, with the privity or direction of his client, as in retaining of learned counsel, suing forth of original or judicial process, procuring a jury to be impanelled, Kel. fol. 50: 13. H. 4. 19 and returned by the Sheriff, by obtaining a Supersedeas for his client, when cause doth require it, and he may give evidence to the jury upon the trial of his client's cause: and also he may request any of the jurors impanelled for the trial of the said cause, to appear, for the speedy end of the said suit. 34. H. 6. 26. But neither the same Attorney who is retained for that only cause, nor a general Attorney that is constituted by any person in all his causes, according to the stat. of West. 2. St. 13. E. 1. 10. may do any unlawful thing in his client's behalf, as to give or promise money, or other reward, of his own, or his clients, to a juror, 11. H. 6. 10. to give his verdict for his client, or to threaten him if he do otherwise, or to defend or offer to defend his client's cause at his own charges: or to procure the Sheriff to return a jury at his denomination for the trial of his client's cause: for in all these cases last specified, the maintenance is unlawful and punishable; for he cannot do them as an Attorney, but as a stranger, a maintainor, and of his own wrong. And if a man do maintain a suit by an Attorney, 22. H. 6. 24. an action of Maintenance doth lie against the Master. Maintenance in a Sheriff or his bailiffs And if the Sheriff of any County, his Undersheriff, or any bailiff, do any of the things aforesaid, 13. H. 4. 19 in any suit prosecuted between party and party, other than impanell a jury, and summon them to appear at a day & time prefixed by the kings writ, it is unlawful maintenance in him. 22. H. 6. 35. 34 In an action of Maintenance the defendant pleaded, Maintenance in respect of neighbourhood. That he whom it is supposed that he maintained, is his neighbour, and that he came unto him, and told him that the plaintiff had procured a Capias to arrest him, & therefore prayed the defendant to give him counsel, what he were best to do, and he this defendant advised his said neighbour, to go to London, and to yield his body to the justices, and to procure a Supersedeas, which is the same maintenance whereupon the action is brought. And this was adjudged no unlawful maintenance, but a neighbourly and friendly counsel, which every person may give to another. For if a husbandman, or any other do come to his neighbour, and tell him that a stranger doth owe him money, or doth detain his goods from him, and request his counsel, that neighbour may advise him to bring an action of Debt or Detinue against the same stranger: 12. Ed. 4. 14. 19 Ed. 4. 3. Or if one neighbour shall tell another, that he hath a cause to put in suit, and desire that he will instruct him what learned man in the law he doth know to whom he may repair for counsel, his neighbour may inform him of such one as he taketh to be learned, and also may go with him to that learned man, and be present when he doth retain him of his counsel, and open his case unto him, and also, he being a mean man and of small countenance or authority in the country, may go to the bar, and stand by him at the trial of his cause in question: but if that neighbour shall give any money to the counsellor, to be retained with his neighbour, or shall give any money or other reward to the Sheriff, or Undersheriff, or to any bailiff, to arrest the other party in his neighbour's behalf, or to answer his suit, then is it unlawful maintenance in him, and he is by action of Maintenance to be punished therefore. Where the master may maintain his servant. 35 In an action of Maintenance brought by A. against B. the plaintiff declared, 31. H. 6. 8. that where he brought another action before against C. the said defendant did maintain the same C. in the same first action: whereunto B. the defendant pleaded, That the same C. is his servant, retained in his service for one whole year, and therefore he retained one M. an Apprentice of the law, to be of counsel with the said C. his servant, and paid the said M. his fee, with part of the wages due to the said C. which was the same maintenance: and this was adjudged a good plea in bar, and lawful maintenance; 22. H. 6. 35. 9 H. 6. 64. 28. H. 6. 12. 19 Ed. 4. 3. 19 H. 6. 30. for it is lawful for the Master to request a man that is learned in the law to be of counsel with his servant in his suit, and to pay the same counsellor his fee, with part of the wages of his said servant, and to go with his servant to the bar at the trial of his cause in question, which the law doth allow him to do, in respect the sooner to deliver his servant from suit and trouble, that he may not lose the benefit of his service, for the longer he doth lack his man's service, the greater is the Master's loss. And if the servant be arrested in any privileged place, the Master may maintain him, and spend his own money to deliver him, in respect that otherwise he should lose his service: for by that means he doth maintain him in his own behalf, and to avoid his own hindrance. But if the servant be impleaded in a real action, wherein he may appear, and answer by Attorney, and that his own presence is not requisite, 21. H. 7. 40. than the master may not maintain him therein, for that the Master shall receive no prejudice if the land in question shall be recovered from his servant. And in like sort the servant may maintain the Master, How the servant may maintain his Master. in any suit commenced by or against his said Master in all lawful manner: As, he may travail in furtherance of his Master's suit, 19 H. 6. 31. 19 Ed. 4. 3. he may retain his counsel with his Master's money, and show his counsel, or the jury, upon the trial of his Master's cause in question, his Master's evidence: for he is bound to do his Master his diligent service, and that which his Master commandeth him to do touching his suit, is his Master's service. But that servant which may justify to maintain his Master in such sort as is aforesaid, must be a servant who is retained with his Master for a year, 39 H. 6. 5. or some long time, and to do all such services as he shallbe employed in by his said Master: for if he be a servant only hired for a day, two, or three, or to ride but some one journey, or to do but some one special service, then if he do maintain his Master, or his Master maintain him in any sort, as aforesaid, it is unlawful maintenance in him. But if in either of the cases aforesaid, the Master for his servant, or the servant for his Master, shall give or promise money, or other reward, to any of the jury, to give his verdict, or do threaten any of them to be killed, beaten, maimed, dispossessed of their farms, 12. E. 4. 14. 19 H. 6. 31. or do give his own money to the Sheriff to arrest the other party to that suit, than it is punishable by action of Maintenance, in him that shall so offend. ❧ Deceit, covin, Collusion, Fraud. 1 DEceit, covin, Collusion, and Fraud, be great offences to the Commonweal, and special impediments of the justice and peace of the Realm, whereof there be so many, and of so general sorts and kinds, as there be wicked devices in the hearts of men, and lewd persons to put them in practice. And it were a work almost as infinite, to divulge the particulars, and to reduce into writing all the Deceits, The multitude and enormity of Deceits and Frauds. Covins, Collusions, and Frauds, which in time have been invented and effected, as it were to poise the weight of the sands of the sea, or to decipher the number of the stars of the element: for by how many means a man may trust, by so many and more he may be deceived. And therefore I will undertake to treat of no more than our common and statute laws have detected, and accused to be deceits, frauds, etc. and amongst others, but of those which the makers, expositors, and Sages of our laws have noted to be chiefly offensive, and most opposite to the due execution of justice, upon which this peace, whereof I do write, doth chiefly depend. For the wisdom of this Realm, first in the making of our laws, and after in expounding them, have bend their chief care to crush and beat down Deceit and Fraud, plainly seeing, that the greatest part of the crimes which be committed in this kingdom, from the highest treason to the smallest trespass, have some intermixture with them: And that if they with their dependents could be fully extirpate, both justice and peace would more brightly flourish. And notwithstanding they do not begin their quarrels with rapier and dagger, sword and buckler, as some other of the offences before mentioned do, yet is there grafted in the root of them as much gall and venom, and more durable and bitter extremities do spring from them, than ●oe ensue by the Canon shot, the light horseman's staff, or the footman's bill: For though some part of every king's reign hath had a calm and repose from war and hostility, yet never any age or year was clearly freed of falsehoods, corruptions, deceits, and frauds. 2 The wisdom of the Realm perceiving how necessary a thing justice is, and how opposite and repugnant unto it deceits and frauds be, doth therefore specially provide to make choice of such men of all sorts, The reward for pains and punishments for deceit of officers towards the law. to execute the same justice, as she is persuaded by their learning and experience can, & by their virtue & integrity will perform to every person his due, and tread & beat down fraud, whose pains she doth requite with reverend respect, liberal rewards, titles of credit, & large privileges. But if she do find any of the said officers whom she putteth in trust, to deceive her expectation, and to practise falsehood or guile, than she doth as sharply punish them, as she did before munificently wage them: As appeareth by the stat. of An. 8. St. 8. R. 2. 4. R. 2. whereby it was ordained, A judge, A Clerk. That if any judge or Clerk do make any false entering of a plea, raze any rol, or change any verdict, whereby any person receiveth disheritance, & he be thereof convict before the K. and his Counsel, he shall be punished by fine & ransom at the K. pleasure, and satisfy the party: And for the recovery of the inheritance, the party shall sue by writ according to the law. And for the avoiding of corruption which may happen in officers in those courts & places, wherein there is requisite to be had the true administration of justice; & to the intent that worthy persons should be preferred to the places of justice, & none other should attain the same for fee or reward, by a stat. made An. 5. Stat. 5. & 6. E. 6. 16. & 6. E. 6. it was enacted, No office of justice shallbe sold or bought That if any person bargain or sell any office, or deputation of office, or take any money, fee, reward, or other profit, directly or indirectly, or take any promise, agreement, covenant, bond, or assurance, to receive or have any money, reward, etc. for any office, or the deputation of any office, or any part of any of them, or to the intent that any person should enjoy any office, or the deputation of any of them, or any part or parcel of any of them, which office, or any part of it doth concern the administration or execution of justice, or which shall concern any clerkeship, to be occupied in any court of record, wherein justice is to be ministered: then he so offending, shall not lose only all his right & estate, which he shall then have of, in, or to the said office, or deputation; but also he that shall give or promise any money, fee, or reward, for any such office, or deputation, shall immediately upon the said gift, or promise, be adjudged a disabled person in the law to all intents, to have or enjoy the said office or deputation. And every such bargain, sale, bond, covenant, promise, and assurance, shall be void, to and against him by whom the same is made. But this Act shall not be prejudicial to the chief Iust. of the K. Bench & Common pleas, or to the Iust. of Assize, but they may do in every behalf concerning any office to be granted by any of them, as they might have done before the making of the same Act. And because the providence of the realm did conceive some jealousy & suspicion in those learned men in the laws of this realm, who by their own means & industry, & for their own commodity and ease, obtained to be Iust. of Assize in the counties where they were borne, or did dwell, and did fear that affection & favour towards their kinsmen, allies, neighbours, and friends, might sometime allure them to decline from the beaten path of justice, therefore by one stat. made An. 8. St. 8 R. 2. 2. St. 33. H. 8. 14. R. 2. & another An. 33. H. 8. it was enacted, No man shall be justice of Assize in his own county. That no justice, nor other man learned in the laws of this realm, shall exercise the office of Iust. of Assize within the county where he was borne or doth inhabit, upon pain to forfeit for every offence done contrary to this act C. l. to the K. & him that will sue by B. P. I. or action of debt, wherein no W. E. P. But this stat. doth not extend to any Clerk of Assize, associate to any Iust. of Assize: nor to the justices, justices Clerks, or Clerk of Assize withithin the Duchy, and County Palantine of Lancaster: nor to the I. of the one Bench or the other, for taking, hearing, & determining of Assizes in the said courts: nor to any Iust. that shall take any Assize upon adiournment, for difficulty of the same: nor to any Majors, Sheriffs, Recorders, Stewards, Bailiffs, Suitors, or other officers in any city, borough, or town, but they may be I. of Assize, of Fresh force, and of other Assizes, in the same town etc. where he or they do dwell, or were borne, as they might have been before. And in like sort by the stat. of W. 1. A Sergeant, A Pleader. it was established, That if any Sergeant, Pleader, St. 3. Ed. 1. 2 or other, do any deceit in the K. court, or do consent thereunto, to beguile the court, or the party, & is thereof attainted, he shallbe imprisoned a year & a day, and being a counsellor, he shall not any more be received to plead in the K. court for any man, and if he be any other than a pleader, he shallbe imprisoned as aforesaid. And if the trespass require a greater punishment, it shallbe at the K. pleasure. And by the stat. of An. 10. A Philozer, An Exigenter. H. 6. & An. 18. H. 6. it was enacted, That if any Philozer, Exigenter, St. 10. H. 6. 4 18. H. 6. 9 or any other officer of the K. Bench, or Common pleas, do make any entry in any suit, that the plaintiff in the same suit hath offered himself in his own proper person, except the pl. in the same suit (before such entry be made) do appear in his own proper person before some of the Iust. of the place where the plea is depending, & there be sworn upon a book, that he is the same person in whose name the said suit is pursued, or that some other credible person of the K. counsel will take such oath for him, the said philozer, exigenter, etc. shall forf. xl. s. to the K. every time that he shallbe attainted by the examination of any of the I. of the same place where any such entry or record is. 3 And because Atturneys be also necessary members in the commonweal, & special means to solicit & further the execution of justice, therefore the law hath had a careful regard that they should be men of integrity, virtuous, and of good name; and hath provided several stat. to punish such of them as shall commit any notorious falsehood, guile, fraud, slackness, ignorance, omission, or contempt of duty: As by the stat. of An. 4. H. 4. it was ordained, St. 4. H. 4. 18 That all Attorneys shallbe examined by the Iust. & by their discretions their names shallbe put in the rol, & they that be good, virtuous, learned, & of good name, shallbe received & sworn well & truly to serve in their offices, & specially, that they make no suit in a foreign county. And if any such Attorney be notoriously found in any default of record, or otherwise, he shall forswear the court, & never after be received to make any suit in the K. courts. And this ordinance shallbe performed in the Exchequer after the discretion of the treasurer & the barons there. And accordingly by one other stat. made an. 3. ja. it was enacted, St. 3. jac. 7. That none shall from henceforth be admitted Atturneys in any of the K. courts of record at West. but such as have been brought up in the same courts, Who shallbe Attorneys. or otherwise well practised in soliciting of causes, Solicitors. & have been found by their dealing to be skilful, & of honest disposition: and none to be suffered to solicit any cause or causes in any of the courts aforesaid, but only such as are known to be men of honest disposition. And no Attorney shall admit any other to follow any suit in his name, Following a suit in another's name. upon pain that both the Attorney & he that followeth the suit in his name, shall each of them forf. for such offence xx. l. to the K. and the party grieved, to be recovered in any of the said courts of record, by A. B. P. I. wherein no W. E. P. etc. And the Attorney in such case shallbe excluded from being an Attorney for ever hereafter. By the stat. of an. 18. H. 6. it was enacted, St. 18. H. 6. 9 That in all cases wherein process of Capias & Exigent lieth, if the Attorney have not his warrant of record, the same term that the Exigent is awarded, he shall lose xl. s. to the K. if he be attainted thereof by examination of the Iust. And by the stat. made an. 32. H. 8. St. 32. H. 8. 30. St. 18. El. 13. & an. 18. El. it was established, That every such person which shallbe Attorney for any other person or persons, being demandant or plaintiff, tenant or defendant, in any action or suit commenced in any of the K. courts of record at West. & plead to an issue in the same, shall deliver or cause to be delivered, his lawful warrant of Attorney, to be entered of record for every of the said actions or suits wherein he is named an Attorney, to the officer or his deputy ordained for the receipt or entering thereof, in the same term when the issue is entered of record in the said court, or before, upon pain of forf. of x. l. for every default, for not delivery of the said warrant: the one moiety to the K. his heirs & successors, the other to such officer, to whom, or in whose office the same warrant should be delivered, entered, or filled, to be rec. by A. of det. B. P. or I. wherein no W. E. P. etc. & also he shall suffer such imprisonment as by the discretion of the I. of the Court (where any such default shall be made) shall be thought good. Fit. N. B. 9 6 If a man make an Attorney in a real action brought against him, Deceit by an Attorney. & after by covin agreed upon between the demandant and the said Attorney, the same Attorney maketh default, whereby the tenant doth lose his land: then the same tenant who lost his land, may have a writ of Deceit against the Attorney. And so it is, if a man bring an action of Trespass against two others, Register fo. 113. Fit. N. B. 96. and the plaintiff and an Attorney by covin agreed upon between them, do cause two strangers, not parties to the writ, to come into the court, and to say, that they be the same two defendants named in the writ, and that they do constitute the same man to be their Attorney in that suit: whereupon the same Attorney, as Attorney to the defendants named in the writ, do plead to an issue, and after suffer the inquest to pass by his default, by which means the plaintiff doth recover against the defendant: in this case they who be indeed defendants, and against whom the same action of Trespass was brought, may have a writ of Deceit against the same Attorney, that appeared as Attorney for them, and shall recover their damages. 10. Ed. 4. 9 20. Eliz. Dyer 367. If an Attorney be informed by his client, to plead a false plea, which he cannot in conscience plead, he may procure this Entry to be made, Quod non fuit veracitér informatus, ideo nihil etc. to defend him in a writ of Deceit brought against him by his said client. If an Attorney do sue forth a Capias where there was no original writ before, 20. H. 6. 39 he shallbe committed to prison, and thrust out of his place in that and all other Courts. 4 As the law doth punish her Officers who do practise or commit any deceit or fraud, in stead of truth, in place of justice, The law rejecteth fraudulent acts. so doth she renounce and condemn all acts of greatest importance, if they be intermixed with guile and falsehood: For though judicial acts, as Fines, Recoveries, Warranties, deeds enrolled, etc. being of their own natures just and lawful, and means to settle titles, to appease controversies, and to yield each person his due, be therefore greatly respected and favoured in her sight; yet if any of them be devised, or executed by covin, or to deceive, than she doth utterly reject them, and adjudge them void. Co. li. 3. 77. As a man was Lord of the Manor of D. wherein there was a tenant which had some parcels of freehold land in fee simple: the Lord demised certain lands, parcel of the demesnes of his said Manor to the said freeholder, for xxj. years, reserving certain rent, and demised some other lands, parcel of the said demesnes, to the same fréeholder at will, reserving another rent, and granted by copy of Court roll certain other lands, parcel of the same Manor, to the said freeholder, for the term of life, according to the custom of the said Manor, reserving a third rend: And after the same freeholder demised all the said lands, which he held by lease, for years, at will, and by copy in D. to a stranger for the term of life: and then the same freeholder levied a fine with proclamations, of so many messages, so many acres of land, meadow, pasture, etc. as he had by lease for years, at will, by copy of Court roll, & of his own inheritance in D. by covin & fraud, to bar the lord of his inheritance. All the proclamations were made, and the five years were passed, the same fréeholder continued in possession of the land which was granted to him by lease for years, at will, and by copy, and paid to the Lord yearly his several rents for the same. And after the stranger to whom the fréeholder made the lease for life, died, and the lease which the Lord made to the fréeholder for xxj. years expired. And then the same freeholder claimed the inheritance of all the land which the Lord demised unto him for years, at will, & by copy, intending to bar the Lord thereof, by force of the fine with proclamations, & the five years past. But this fine was adjudged void against the Lord, and that it did not bar him to claim and enter upon his land, for that it was levied by him, who had but estate in those lands for years, at will, or by copy of court Roll, and that neither had nor could pretend any title to the inheritance of the land, but only by fraud practised the disheritance of the leassor. And whereas the meaning of the makers of the statute of Anno 4. H. 7. St. 4. H. 7. 24 was (as it may appear by the preamble of the same) that fines ought to be of the greatest strength to avoid strifes and debates, when the lessée for years, at will, or copyholder shall make an assurance by fraud and covin, A fine levied of land to defraud the right owner thereof. to the intent a fine may be levied, to disherit the right owner of his land, this is not a means to avoid or appease strife, but to begin it, where none was before: and therefore the same statute did not intend to ratify such an estate begun by deceit. And further, the meaning of the makers of the said statute was not, That he who could not levy a fine of this land, in respect of the debility of his estate therein, should be enabled by his own practice and deceit to levy a fine thereof, to bar him who had a lawful title therein, and a right to levy a fine thereof. And the same lessée for years, tenant at will, and copyholder contrived his fraud in so secret manner, that by his covert practice he deprived his lessor of the remedy which the said statute of Anno 4. H. 7. did give him, viz. to make his entry, or to pursue his action within five years, which he could not do, being ignorant of the lease for life which his tenant had made of this land to a stranger: and also conceiving that the lessée having land of his own fee simple in the same town, he levied a fine of that land, which he might lawfully do. And the deceit and fraud in this case is the more odious, because it was practised by the lessée against his lessor, and by the copyholder against his Lord, who is by the law bound to do fealty to the lessor and Lord, which is a bond of confidence, and a link of trust. And if a man seized of land in fee, Fit. Fines 120. do make a lease to another thereof for term of life, and the lessée for life doth levy a fine thereof to a stranger, he in the reversion may enter into the same land for a forfeiture, and put forth the conusée in the fine, and avoid the fine, for it was levied by deceit, to defraud him of his reversion. If a fine be levied of lands to secret uses to deceive the purchasor of the same land, it may be averred to be levied by fraud, and so by the statute of 27. El. 4. avoided. St. 27. Eli. 4. And so if a fine be levied upon an usurious contract, and that be averred, the same fine shallbe void by the stat. of 13. Eliz. 8. St. 13. Eli. 8 A fine levied of ancient demesne lands to defraud the Lord. 5 The law is as provident to protect men's signiories, rents, and services from eviction by deceit, as she is their lands and tenements: & knowing that a fine in some cases levied by covin of the one, may be as prejudicial to his inheritance, as of the other, hath therefore ordained several remedies to redress several wrongs: as if a man seized of lands in ancient demesne, do levy a fine thereof at the common law to another, this is a deceit to the lord of that manor of whom the said lands be holden, 21. Ed. 3. 20 Fit. Nat. Br. 98. & therefore he may have a writ of Deceit against the cognisor and the tenant of the lord, & thereby avoid the said fine, and then he that levied the said fine shall be restored to the possession, and the title which he had before in the same land, and also the same land shall return and become ancient demesne as it was before, for that the said fine shallbe utterly void. 21. Ed. 3. 56. And he that is lord of a manor of ancient demesne but for the term of his life only, may maintain this writ of Deceit. And so may he in reversion, if tenant for the term of life do not bring it during his life, and either of them by his said writ may avoid the same fine: for by the levying of a fine at the common law of lands in ancient demesne, 8. E. 4. 6. or by recovery of them at the common law, the same lands do become Frank fee, and pleadable at the common law, and so the lord should be deceived of his right, and lose his signiory in them. And the writ of Deceit will avoid the said fine or recovery, because the fine was levied, and the recovery was suffered coram non judice, in deceit of the Lord, viz. not before that judge, nor in that Court where they ought to have been. 17. Ed. 3. 31. 7. H. 4. 44. 8. H. 4. 23. Fitz. Na. Br. 98. But if a man seized of lands, whereof parcel be ancient demesne, and parcel Frank fee, do levy a fine at the common law of both parcels: in this case though the Lord of the ancient demesne do by his writ of Deceit avoid the fine for so much as is ancient demesne, yet the residue of those lands which be Frank fee, shall continue in force: for a fine levied of them was no wrong or deceit to any. 6 And the same law is where land is recovered by deceit: A writ of Deceit to avoid a recovery. as if one man do bring a Praecipe quod reddat against another, and demand certain land, by force whereof the tenant ought to be summoned to be before the justices at a certain day, and the sheriff doth return the tenant of the land, against whom the said Praecipe is brought, Fit. Nat. Br. 97. summoned, whereas in truth he was not summoned: by which false return and deceit of the sheriff, the demandant doth upon the Grand Cape recover seisin of the land by default of the tenant: in this case the tenant to whom this deceit is done, 3. E. 3. 28. Fitz. Deceit 49. may after judgement given for the demandant, have a writ of Deceit against him that did recover, and against the sheriff for his false return. And by this writ of Deceit the tenant shallbe restored to his land again, 18. E. 4. 11. so that it be brought during the life of the summoners, viewers, and pernors, or any of them: for if it be not brought until all the summoners, viewers, and pernors be dead, it will not lie, for after the death of them the tenant shall not have a writ of Deceit; for process shallbe awarded against the summoners, viewers, and pernors to appear in Court, and by the examination of them it is to be tried whether the tenant was summoned, or not: 50. Ed. 3. 16. 8. H. 6. 1. Fitz. Deceit 48. Fitz. Deceit 32. 33. 34. 46 for the summons must be made by two summoners at the least, and two viewers. And if any of them did not their duty, than the writ was not executed as it ought to have been, and therefore the plaintiff in the writ of Deceit ought to be restored. But the K. shall have the issues of the land in the mean time. And if the demandant, who did recover by the sheriffs false return, do make a feoffment of the land, than the writ of Deceit must be brought against the demandant, the feoffée, and the sheriff: and if the demandant that doth recover, 8. E. 3. 6. 10. Ed. 3. 43. & the sheriff also, be both dead, yet the writ of Deceit may be brought against the heir of the demandant, and the tenant of the land, if the summoners, viewers, and pernors be living. And if a man do lose his land by default in a Praecipe quod reddat, Fit. Nat. Br. 98. Fitz. Deceit 43. 80. whereby he was not summoned, and then dieth, his heir may have a writ of Deceit as well as his ancestor, and shall have restitution: and the vouchée The vouchée. may have a writ of Deceit, where he doth lose by default, if he were not summoned. 7 And so it is, if a man sue a Scire facias against another, Deceit to avoid a recovery upon a Scire facias. to have execution of a fine, if the sheriff return the tenant of the land summoned by two summoners, whereas he was not summoned, by which return the demandant shall recover, and have execution of the land, if the tenant do not appear, and the tenant shall lose the land: in this case the tenant may have a writ of Deceit against the sheriff, and the demandant that did recover, and him that is then tenant of the land, and shallbe restored to his former possession. And the like law is, 17. Ed. 3. 12. if a man sue a Scire facias upon a recognisance against another for a debt before recovered, Deceit to avoid a recovery of debt. if the sheriff return the defendant summoned, whereas he was not summoned, by reason whereof the defendant hath execution awarded against him of the debt, than the defendant may have a writ of Deceit against him that had the execution, and the sheriff, and the sheriff shall be punished for his false return, and the party who did recover, shall make restitution of that which he recovered: and if the defendant die, his executors may have a writ of Deceit, Where executors shall have a writ of Deceit. and be restored, if the deceit be proved, and that the Testator was not garnished, whereupon the garnishers shall be examined. And so it is, if a man recover in a writ of Annuity, Annuity. and after doth sue a Scire facias, and recovereth by default of garnishment, Fitz. Deceit 42. the defendant may have a writ of Deceit: For by the statute of Anno 2. Ed. 3. St. 2. E. 3. 17. 17. a writ of Deceit holdeth place, and is maintenable as well in case of garnishment, which toucheth plea of land where such garnishment is given, as in case of Summons in a plea of land: for in all the cases aforesaid a Deceit was wrought by the sheriff to the Court and the party grieved by his false return: and the Law hath ordained, That every of those deceits shall be reform by the writ of Deceit. And a recovery and judgement had, made, and given, to the intent to defraud and frustrate the true meaning of a statute, shallbe void, as amongst others it appeareth by the statute of Anno 43. A judgement to defraud the meaning of a statute. Eliz. whereby it was ordained, St. 43. Eli. 9 That all judgements which shallbe had, for the intent to have & enjoy any lease of a benefit with cure, or any bonds, contracts, promises, & covenants made for any person to enjoy the same, contrary to the statute of An. 13. El. 20. & An. 14. El. 11. or any of them, shallbe void, in such sort as bands & covenants are appointed to be void, which are made void for that purpose: for that the suits whereupon the same judgements be gived, were commenced & prosecuted upon collusion & fraud, to defeat and make frustrate the true intent and meaning of the said statutes, or of one of them. Deceit uhon recovery in a Quare impedit 8 If any person do recover against another in a Quare impedit by default of the defendant, whereas he was not summoned, 27. H. 6. 5. Fitz. Deceit 57 19 Eliz. Dyer 353. than the same defendant may have a writ of Deceit, and the Summoners, and the pledges upon the attachment, and the mainpernors upon the distress shall be examined, and if the deceit be found, the first judgement shallbe reversed, and there shallbe a writ awarded to the Bishop, to remove the Clerk that was in the Church. And so it is, Deceit upon a recovery in waist if any person do bring an action of Waste against another, 29. Ed. 3. 42. 48. Ed. 3. 20. Fitz. Deceit 30. & the plaintiff do recover against the defendant by default, whereupon a writ is awarded to the sheriff to inquire of the waist, whereas the defendant was not summoned, the defendant may have a writ of Deceit against him that recovered in the same action of Waste, and he shall suppose that he was not summoned, attached, nor distrained: and process shallbe awarded against the summoners, the pledges, and the mainpernors, who shallbe severally examined, and if they all did not their duty according to the Law, the plaintiff in the writ of Deceit shall recover, and be restored to that which before he lost in the action of Waste. Deceit upon a recovery by a Praecipe in capite. 9 And the like law is, 17. Ed. 3. 31. 36. if any person do recover land against another by a Praecipe in capite, where the same land is not holden of the King in chief, but of a mean lord by other services, and where the demandant had no licence of the chief lord to sue at the common place: then the chief lord may have a writ of Deceit against him that recovered the same land, wherein he shall recover his damages, & the demandant shall be imprisoned for the deceit, and also the lord shall retain his signory in the same land: But the recovery shall remain in force, and he that did recover, shall also hold of the K. in chief, by the way of estoppel. And this writ of Deceit is maintenable in this case, by force of the stat. of Magna Charta, 9 H. 3. 24. whereby it is ordained, That the writ which is called Praecipe in capite shallbe granted to no man, whereby any freeman may lose his Court. 10 covin is accounted so professed an enemy to justice, Where a good title shallbe impaired by a covenous recovery. & therefore is so hated by the law, that she adjudgeth that bad and unlawful which is mixed with covin, though before of itself it were good & lawful: as if the issue in tail, who hath good cause to bring a Formedon in discender upon a discontinuance made of certain lands by one of his ancestors, 44. Ass. p. 28 41. Ass. p. 28 be of covin, that a stranger shall disseise the tenant of the land, against which stranger he doth bring his action, & doth recover this land, and hath execution: in this case he shall not be remitted to his former estate, though his title be good, but shall be adjudged in possession by disseisin, 44. Ed. 3. 46. 15. E. 4. 4. 7. H. 7. 11 Co. lib. 5. 31 in respect of the covin. And so it is, if a woman that hath good cause to be endowed of her late husband's lands, will be of covin that a stranger shall disseise the tenant of the land whereof she is indowable, against which stranger she will bring a writ of Dower, and recover, & hath execution, she shallbe adjudged in possession against the disseisée but as a disseisor, in respect of her covin, though she had good title to be endowed. And so covin mingling together virtue & vice, persuadeth the law to reject & condemn a lawful title, which is unlawfully achieved. 11 As the law doth both condemn & reject fines and recoveries, Warranties' devised by fraud. which be practised or put in execution by fraud or deceit, so doth she renounce and make frustrate all sorts of warranties that be devised or contrived upon collusion or covin to defeat or defraud others of their just & lawful titles: for though warranties be much favoured in the law, for that they be means to establish the title of those who be tenants of land in possession, but yet if any of them be undertaken, performed, or mixed with fraud, than it doth not only lose his favour, but also his force in law. Co. lib. 5. 79 50. Ed. 3. 12. 43. E. 3. 7. As if land be given to the father for the term of his life, the remainder to his son & heir apparent in tail, and the father by covin & agreement between him and another (to bar his son by a collateral warranty of his remainder) will make a lease of the same land to that other person, who will make a feoffment in fee to a third person of the same land, to whom the father will release with warranty: and then the father dieth, & the warranty doth descend upon his son being of full age: yet this warranty will not bar the son of this land: for the feoffment of the lessée for years was a disseisin, and the father was partaker of the offence, an actor, & agreeing thereunto: and though the release with warranty was made after the disseisin, yet seeing the disseisin was made to that end, the law doth adjudge the whole fact from the beginning to be fraudulent, the warranty to begin by disseisin, & so all that assurance to be void against the heir in tail. And in like sort, other warranties that do commence by disseisin, be contrived to deceive & defeat the right heirs of their just and lawful titles. 20. H. 6. 10. Regist. f. 113 44. Ed. 3. 4. 12 If one do bring a Praecipe quod reddat against two other men, Deceit by getting of a Protection. and they do purchase a protection for one of them, suggesting that he is to go beyond the sea in the kings service, whereas he doth not so, but remaineth still in England, and so hath done ever since his protection purchased, by which means the demandant is delayed of his suit: in this case the same demandant may have a writ of Deceit against the said tenants for this deceit and delay, and shall recover his damages. Deceit by purchasing a writ to charge another. 13 Whereas according to the course of the Chancery, Fit. Nat. Br. 96. the king is to have of every person, who doth bring against another an action of Debt of the sum of forty pounds, or more, vj. s. viii. d. for a fine, and for an hundred marks, vj. s. viii. d. and so for every hundred marks vj. s. viii. d. and for every Praecipe quod reddat brought of land, to the yearly value of five marks, vj. s. viii. d. and so according to that rate (unless it be a writ of right patent.) If any other person do purchase a writ in the Chancery in my name, without my privity, whereby I shall be charged to pay to the king for a fine any of the sums aforesaid, I may have an action of Deceit against him, and recover my damages, for this writ was obtained to put me to charges, and thereby to deceive me of so much. Deceit for purchasing a writ in another's name. 14 If A. being patron of a Benefice, Fitz. Na. Br. 96. Regist. f. 112. 7. H. 6. 45. when the Church is void do present his Clerk to the Ordinary, and B. doth disturb him, whereupon C. doth purchase a Quare impedit against B. in the name of A. returnable in the common pleas, A. not knowing thereof, and after doth cause the writ to be abated, or A. to be nonsuit in that writ: in this case A. may have a writ of Deceit against the same C. and recover his damages. Deceit for procuring of a suit. And if B. do procure C. to sue an action against A. whereby A. is vexed, Fitz. Na. Br. 98. A. may have a writ of Deceit against B. Deceit by acknowledging of a statute. 15 If A. and B. do come before the Mayor of the Staple, Fitz. Na. Br. 105 & 100 Regist. f. 115 or before any other Mayor of any City, Borough, or Town, having authority to take acknowledgement of debts, and there A. doth acknowledge a statute to B. of an hundred pounds, or etc. in the name of C. and doth report himself to be C. where he is not so, whereupon C. is troubled, and this statute extended against him, than the same C. may have a writ of Deceit against the said A. and B. and shall recover his damages. And so it is, if another man will levy a fine of my land in my name, Deceit by doing of a judicial act in another's name. or confess an action brought against me in my name, or will enter into a voucher in my name, 19 H. 6. 44. Regist. f. 113 and confess the demaundants action, or will acknowledge a recognisance, or statute Merchant, or other matter of Record in my name, I have no other remedy but by an action of Deceit. But it is otherwise, if he seal and deliver an obligation in my name: for I may plead that it is not my deed, which I cannot do against a Record. Deceit by forging of a resignation. 16 If a Notary, Fitz. Na. Br. 99 Regist. f. 114 and other persons do by agreement counterfeit the seal of any Parson or Vicar, and forge letters of resignation of his Parsonage or Vicarage, in the name of the same Parson or Vicar, by which means he is removed from the possession of the same Parsonage or Vicarage, he may have a writ of Deceit against the same forgers. 20. H. 6. 36. 21. H. 7. 41. 16. Ed. 4. 9 17 If a man do bargain with another to enfeoff him of certain lands within twenty days, Deceit by assuring of land to one man, which was bargained to another. or etc. and after he doth enfeoff a stranger of the same land, the he with whom the bargain was made, and was deceived therein, may have a writ of Deceit against him that so bargained and defeated him thereof. And so it is, if a man do compound with another to purchase a manor, or certain land for him, and he doth buy it for himself, the party may have an action of Deceit against the same purchasor. And in all cases, where a man doth promise to do a thing, and he doth it falsely, a writ of Deceit is maintainable against him: Deceit by charging of land after sale. as if a man do promise to assure land to another, and after he doth grant a Rend charge, or a common out of it, or doth make a Lease for life or years of it, and then doth assure it to the bargainee, this is deceit, and a writ of Deceit is maintenable against him for it, for though he hath assured the land, he hath not assured it clére and discharged, according to his bargain, but hath deceived the purchasor therein. 11. E. 4. 6. 18 If a man do sell a piece of cloth to another, Deceit upon a warranty. and warrant it to be forty else long, and it is not so long, the buyer may have a writ of Deceit against the seller of the same cloth, by force of his warranty, although the warranty be by word only, 6. Ed. 6. Dyer 76. without writing, so that it be at the time of the bargain made. But if the warranty be at another time after the bargain made, than the buyer must have some writing to testify this warranty, or otherwise he shall not have a writ of Deceit against the seller. 9 Ed. 4. 13. Fit. Nat. Br. 98. 19 If an action of Debt be brought against two as executors, Deceit by confession of an action brought against executors. whereas one of them was never executor nor administrator, and if he which is executor do make default, & he who was not executor do appear, & confess the action, he that was named executor may have against the other an action of Deceit: for he hath undertaken to plead a plea to the action of debt, which he could not do, and that also to the deceit and hurt of another. 26. H. 8. 7. 20 If a man do marry a wife possessed of goods, covin by aliening of his wives goods. those be the husbands, to give and dispose at his pleasure during the marriage between them. But, if after they be divorced, the wife shall have her goods again, unless the husband hath given or sold them before the Divorce, for in that case the wife is without remedy. And yet if the husband do alien those goods by covin, to the intent to defraud and defeat his wife of them, and after they be divorced, than she may aver the covin, and recover the goods from the alienee. 35. H. 6. 5. Co. lib. 3. 78 83. li. 5. 83. 21 Though buying of goods in an open marketh doth work an alteration of the property of the same goods, Sale of goods in open market by covin. and doth bind the Title as well of all strangers as of the owner (if the goods be sold in such a shop or place as is commonly used for the selling of goods of the same kind or nature) yet if one man do steal, purloin, or injuriously take away another man's goods, and then by covin between him and a third person doth sell the same goods in an open & usual place of sale, 7. H. 7. 12 in an open market or fair, to the third person, who at the time of buying of the same goods, did know that the seller came not lawfully by them, or that they were not his goods, this is a void sale. And in respect of this covin, the first and right owner of these goods may lawfully take and carry them away, notwithstanding the said sale in open market. Fraudulent assurances to defeat the discontinuée in tail. 22 If the father being tenant in tail of certain lands, M. 34. E. 1. Fitz. guarantee 88, will make a feoffment thereof to another with warranty, and so discontinue the estate tail, having assets of other lands in fee simple, to leave to descend to his son and heir, and then within few days before his death will alien the same fee simple land to his son and heir, and to his heirs, upon covin, and to the intent that the same fee simple land should not be pleaded to come by descent from the said father to his son, nor adjudged as Assets by descent in his hands: yet this covin being found by verdict in a writ of Formedon brought against him by the heir of the land entailed, shall give the discontinuée advantage to plead, that the same heir had assets by descent in fee simple left him by his said father: for that the law doth adjudge this alienation made by the father to the son a little before his death, by covin to defraud the discontinuée of his lawful plea, to be as no alienation, but that the father died seized of the same fee simple land, and that it came to his son and heir by descent. 23 Because Lords of Manors, lands and tenements, have as great right to enjoy the wardship of the bodies and lands of their wards, Fraudulent conveyance to defeat a Lord of his wardship. as they have to their other inheritances, lands, and goods, and it is as great an injury to deceive them thereof by covin and collusion, as to defeat and defraud them of their other lawful titles: therefore by a statute made at Marlebridge anno 52. H. 3. it was enacted, That if any man do enfeoff his eldest son or heir, St. 52. H. 3. 6 being within age of his inheritance, that thereby the Lord might lose his wardship, yet notwithstanding such feoffment, the chief Lord shall have his wardship. And by the said statute it was further ordained, That if any persons meaning to demise their lands for term of certain years (that they might thereby defeat the Lords of the fee of their wardships) will feign false feoffements, containing, that they are satisfied of the whole service due unto them, until a certain term, and that such feoffees are bound to pay at the said term a great sum, to the value of the same lands, or much above, so that after the said term the land shall revert to them or their heirs, for that no man will desire to hold the same of so great a price, yet by such fraud no chief Lord shall lose his wardship. And if the chief Lords do by judgement of the Court recover their wardships, yet the feoffees shall have their action reserved, to recover their term or fee, when the heirs shall come to their lawful age. And for the further prevention of covin in avoiding of wardships, by one other stat. made anno 34. H. 8. it was ordained, St. 34. H. 8. 5 That if any person or persons having estate of inheritance of or in any Manors, lands, tenements, or hereditaments, held of the king by Knight's service, in chief, or otherwise of the king by Knight's service, or of any other person or persons by Knight's service, have given at any time since the 20. day of july anno 32. H. 8. & anno Dom. 1540: or hereafter shall give, will, devise, or assign by will or other act executed in his life, his manors, lands, tenements, or hereditaments, or any of them by fraud or covin to any other person or persons, for term of years, life, or lives, with one remainder over in fee, or with divers remainders over for term of years, life or lives, with one Remainder over in fee simple to any person or persons, or to his or their right heirs: Or at any time since the said 20. day of july, hath conveyed, or hereafter shall convey, or make by covin (contrary to the true intent of the Act provided 34. H. 8. for the making of Wills) any estates, conditions, mesnalties, tenors, or conveyances, to the intent to defraud or deceive the King of his Prerogative, primer seisin, livery, relief, wardships, marriages, or rights; or any other Lords of their wardships, reliefs, heriots, or other profits which should or ought to accrue, grow or come unto them, or any of them, by or after the death of his or their tenant, by force and according to the Statutes made 32. H. 8. 1. & 34. H. 8. 5. and the same estates, and other conveyances being found by office to be so made by covin, fraud, or deceit, contrary to the true intent of the said Acts: Then the king shall have as well the wardship of the body, and custody of the lands etc. as livery, primer seision, relief and other profits, which should or ought to appertain to him, according to the true meaning of the said acts, as though no such estates or conveyances by covin had never been had or made, until the said office be lawfully undone by traverse or otherwise. And the other Lord and Lords of whom any such lands &c. shallbe holden by Knight's service, as is aforesaid, shall have their remedy in such cases, for his or their wardships of bodies, and lands, by writ of right of ward, and shall distrain and make avowry or cognisance by themselves or their bailiffs for their reliefs, heriots, and other profits, which should have been to them due, by or after the death of their tenant, as if no such estate or conveyance had been had or made: Saving the right and title of the donees, feoffees, leasées, and devisées thereof against the said devisor and his heirs, after the interest and title of the King or other Lord therein ended. 24 If the father do make a feoffment of his lands holden by Knight's service, Fitz. Collusion 29. 33. H. 6. 14. Co. li. 1. 122. to his eldest son, He that is not party to a fraud shall sustain no loss. then by the foresaid Statute of Marlebridge the Lord of whom the same lands be holden is inpossibilitie to have the wardship of the said son, if the father die, his said son being within age. But if the same son do after make a feoffment of the same land to an other bona fide, and after the father doth die, leaving his son within age, there this possibility is destroyed: for that the stranger who had no notice of this fraud, hath purchased the land bona fide, and therefore shall sustain no prejudice by it. And yet in that case, if the son had made the Feoffment after the father's death, Co. li. 2. 94. this alienation had not deprived the Lord of his wardship, which was once lawfully devolved unto him. 25 And it is a deceit, collusion, and defrauding of the law and a great disheritance, and prejudice to the Lords of the Fee of whom any lands be holden, to give the same lands in Mortmain, or to do any Act, or procure any thing to be done, whereby they may come into Mortmain, contrary to the statutes of Magna Charta, 7. Ed. 2. 13. Ed. 1. 15. R. 2. and 23. H. 8. for the Lords do lose the wardships, marriages, reliefs, and other services of their Tenants by that means. And therefore by the Statute of West. 2. it was enacted, That if any religious or Ecclesiastical person do implead an other, St. 13. E. 1. 31. by a Real action of land, and the Tenant will make default after default, whereby he ought to lose the land. Then he which doth recover, shall not have Execution of the same Land recovered, until he hath sued forth the kings writ of Quale ius directed to the Escheator of the same county, to make enquiry by a jury, what right he that recovered the land hath to the same: And if he hath right, Deceit and Collusion to bring land into mortmain. judgement shallbe given for him, & he shall have execution of the same land: And if it be found that he hath no right to recover by his said action, but that the lands were lost by collusion between him, and the tenant of the land, than the land shall accrue to the next Lord of the fee, if he demand it within a year next after the inquest taken: And if he doth not demand it within a year, it shall accrue to the next Lord above, if he demand it within half a year after the same: And so every Lord after the next Lord immediate shall have half a year to demand it successively, until it come to the King, to whom through the default of other Lords the land shall accrue: For this recovery of land by default, by a compact and covin before agreed upon, between the demandant being a religious or Ecclesiastical person, and the tenant, is to defraud the intent and meaning of the Statutes of Magna Charta, and an. 7. Ed. 1. whereby it was ordained, St. 9 H. 3. 37 St. 7. Ed. 1. That if any religious person, or other whatsoever, will buy or sell any lands or tenements, or will receive the same by colour of any gift, or lease, or by reason of any other title whatsoever, or will by other practice or devise procure the same to himself, whereby such lands or tenements may come into mortmain, he shall forfeit the same lands. And by the equity of the foresaid Statute of Westminster 2. if any Ecclesiastical person do recover land against another by reddition, 3. Ed. 4. 14. confession, or action tried, yet the collusion shallbe inquired of, for that the same recovery may be by collusion before had between the demandant and the tenant. And because that by feoffments, fines, recoveries, and other assurances made of trust of lands to the use of parish Churches, Lands assured in Mortmain to churches, chapels, Guilds, etc. Chapels, Guilds, Fraternities etc. there groweth to the King, and other Lords, and subjects of the Realm, the like losses, & inconveniences, and is as much prejudicial to them, as doth and is where lands be aliened in mortmain: Therefore for the eschewing and avoidance of them, by a Statute made an. 23. H. 8. it was enacted, St. 23. H. 8. 10. That all feoffments, fines, recoveries, wills, and other estates devised, or in any wise made of trust, of any manors lands, tenements or hereditaments, to the use of any parish churches, chapels, churchwardens, Guilds, fraternities, or brotherhoods erected or made of devotion, or by common assent of the people, without any corporation: Or that the Feoffees, Conisees, Recoverées, or other persons, and their heirs thereof seized, shall take, levy, or perceive, or cause to be taken etc. the issues and profits thereof, and the same to dispose, or otherwise employ, or suffer or cause to be paid, disposed, or employed to any of the foresaid uses, or to any of the like uses (above the term of 20. years next after the first making and beginning of any such uses) shallbe utterly void. But for the preventing of collusion and fraud which might be devised for the further establishing or corroboration of such uses, by the said Statute of an. 23. H. 8. Collateral conveyances to defraud the assurance to Churches. it was moreover provided, That if any person or persons in defraud of the said Statute, doth bind, or ordain any of their heirs or successors, or any other persons, that they shall suffer such uses, intents or purposes to continue, contrary to the said statute, upon pain of loss of any other lands, or of any other thing: or do devise by any colour, craft, or means any thing to make such uses declared contrary to the meaning of the said Act to continue for any longer time than is above limited for the same: Then every such penalty, craft, colour, and every other thing that is made or devised in defraud of the said act, shallbe void: for the said Statute shallbe interpreted as beneficially as may be to the destruction, or utter avoiding of the uses above remembered, and of all other like, other than such as are before expressed. Co. lib. 1. 26 Notwithstanding the foresaid Statute of Ann 23. H. 8. To what uses lands may be given. it is lawful for any person at this day to give his lands, tenements, or hereditaments to any person or persons, & to his or their heirs, for to find a preacher, for the maintenance of a School, for the relief of maihemed soldiers, for the sustentation of poor people, for the reparation of churches, highways, bridges, cawseiss, for the discharge of the poor inhabitants of a town of common charges, for to make a stock for poor labourers in husbandry, & poor apprentices, for the marriage of poor maids, or for such other charitable uses: for the said stat. was made only to restrain the assuring of lands to superstitious uses, and not to charitable uses. And in this case it shallbe expedient that the feoffor which doth assure his land to any of the uses aforesaid, do reserve to himself some annual rent, or take some money of the feoffees at the first, for then the feoffment or assurance shall be good to the feoffees, and their heirs, though the use be unlawful. And it appeareth by the stat. made an. 43. Stat. 43. El. 4. El. that they be accounted good and charitable uses, & no superstitious uses, to give lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money, and stocks of money for the relief of aged, impotent, and poor people: or for the maintenance of sick and maihemed soldiers, & mariners, schools of learning, free schools, & scholars in Universities: or for repair of bridges, ports, havens, cawseys, churches, sea-banks, & high ways: or for education or preferment of orphans: or for, or toward relief, stock, or maintenance for houses of correction: or for marriage of poor maids: or for supportation, help, & aid of young tradesmen, handicraftsmen, and persons decayed: or for relief or redemption of prisoners or captives: or for aid or ease of any poor inhabitants concerning payment of fifteen, setting out of soldiers, and other taxes. For the said Stat. of 43. El. doth give authority to the L. Chancellor, the L. Keeper etc. & to the Chancellor of the Duchy, to award commissions from time to time into all or any parts of this Realm to certain persons, to inquire of all & singular such gifts, assignments, & appointments, and of the abuses, breaches of the truce, negligences, misimployments, not employing, concealing, defrauding, misconuerting, or misgovernment of any lands, tenements, rents, etc. goods, chattels, money etc. heretofore given or assigned, or which hereafter shallbe given, limited, or assigned to or for any the charitable or godly uses before rehearsed: And after such inquiry, hearing, and examining thereof, to set down such orders, judgements, and decrees, as the same lands, tenements, rents, goods, money etc. may be duly and faithfully employed to and for such of the charitable uses and intents aforesaid respectively, for which they were given or appointed by the donors and founders thereof. 26 Because when tenants for term of life, tenants in dower, or by the courtesy of England, or tenants after possibility of issue extinct were impleaded, they would often be of covin with the demandants, that the tenements demanded should be recovered against them, & they would not pray in aid, nor vouch to warranty them in the reversion, but plead in chief such a plea whereby they knew the tenements should be lost: for the prevention and eschewing of which covin, St. 13. R. 2. 16. by a stat. made an. 13. R. 2. it was ordained, That if any such tenant be impleaded, and he in the reversion come into the Court, and prayeth to be received to defend his right at the day that the tenant doth plead to the action, or before, he shallbe received to plead in chief to the action, without taking delay by voucher, ayd-prayer, nonage, or other delay whatsoever; covin by a particular tenant to defraud him in the reversion. so that after such receipt, he shall have no delay by protection, essoin of the King's service, or common essoin, but the suit shallbe hastened as much as it may be by the law: And days of grace shallbe given by discretion of the judges betwixt the demandant and him which is received, and not the common days given in pleas of land (except the demandant will thereunto assent) to the intent the demandant shall not be too much delayed which must plead with two adversaries: And he in the Reversion which prayeth to be received shall find sureties for the issues of the Land, aswell where the receit is counterpleaded, as where it is grauted. Stat. West. 2. 13. Ed. 1. 3 And by the Statute of Westminster 2 it was established: That if by default, or yielding of such tenant in dower, or etc. judgement shallbe given, than the heirs, or they which have the reversion shall recover after the death of such tenants by a writ of Entry ad communem legem. The wives receipt upon the husband's default. And by the same Statute of Westminster 2. it is also ordained, That if in an Action, brought against the husband and the wife of lands which be the right of the wife, the husband will absent himself, and will not defend his wives right, or will against his wives consent yield the land: If the wife will come before judgement, and be ready to answer to the demandant and to defend her right, she shallbe thereunto admitted. And for the further avoiding of covin in Recoveries suffered by particular tenants, by the Statute of Anno 14. Eliz. it was enacted, Stat. 14. El. 8. That all recoveries to be had or prosecuted by agreement of the parties, Recoveries against particular tenants by covin to defraud him in the reversion. or by covin, against any tenants by the Courtesy of England, Tenants in tail after possibility of issue extinct, or otherwise only for the term of life, or lives, or of estates determinable upon life, or lives, of any lands, Tenements, or hereditaments, whereof the same particular Tenant is or shallbe seized of any such particular estate, as is aforesaid, or against any other with Vourcher over of any such particular Tenant, or of any having or that had right or title to any such particular estate, or tenancy as is aforesaid, shall as against such person or persons to whom any reversion, or remainder thereof, by force of any Conveyance or devise before that time had or made, shall, ought, or lawfully may appertain, and against their heirs and successors be utterly void. Provided always that this Act shall not extend to any person or persons that shall by good title recover any lands, tenements, or hereditaments, without fraud or covin, by reason of any former right or title: But all & every such recovery and recoveries upon former rights and titles shall stand and be in like force, as they were before the making of this Act. And in all and every recovery and recoveries to be had or prosecuted of any lands, tenements or hereditaments by the assent and agreement of any person, or persons, to whom any reversion or remainder thereof then shall or aught to appertain (so that the same assent and agreement do appear of record in any of the King's Courts) shall stand in like strength, and of like effect against such person and persons that shall so assent and agree, their heirs, & successors, as they were before the making of this act. 27 And for that covin and fraud should be restrained and punished when it shall be put in practice, or intended by those in reversion to defeat their Lessees of their terms for years, as it was by the aforesaid Statutes, when it was executed by particular Tenants, to the prejudice or disheritance of them in the Reversion: covin by him in the reversion to defeat his Lessee for years. Therefore by a Statute made Anno 21. H. 8. Stat. 21. H. 8. 15 Stat. 6. E. 1. 11. it was enacted, That if any persons do make leases of their lands, tenements, or other hereditaments by Indentures, or without writing to other persons, for term of years, if after the same Lessors, their heirs or assigns do cause or suffer recoveries to be had against them in the Kings, or any other lords Court, upon feigned and untrue title, by craft and covin to put the said Termors from their Terms: all such Termor shall and may falsify for his term only such recovery, in such wise and form, as a tenant of freehold shall & may do by the course of the common law, where such tenant was neither privy, nor party to such recovery. And the same Termors their Executors & assignees, notwithstanding such recovery so had, shall enjoy, retain, and hold their said terms, according to their said leases, against all such recoverors, their heirs, and assignees. And the said recoverers, their heirs, and assignees after such recovery so had, shall have like remedy against the said termors, their Executors and assignees by avowry, or action of debt for the rents and services reserved upon the same leases, being due after the same recoveries, & also like actions against them for waste done after the same recoveries so had, in like manner and form, as the said Lessors should or might have had, if the same recoveries had never been had. No manner of Statute of the Staple, covin to avoid a Statute or recognizance. statute merchant, nor execution by Elegit, shallbe avoided by means of any such feigned recovery, but all persons having any lands, tenements or other hereditaments in execution, or being entitled to have execution of any lands or tenements by any such means, shall have like remedy to avoid and falsify the same recovery, as before is provided for the lessee for term of years. 28 There have been many laws and Statutes devised from age to age, to restrain and punish several sorts of deceits, Covins, collusions and frauds, but most to encounter and check fraudulent deeds contrived of malice or guile, to defeat, Stat. 50 Ed. 3. 6. 1. R. 2. 9 2. R. 2. 3. 3. H. 7. 4. 13. El. 5. 27. El. 4. delay or hinder others of their lands, leases, goods, cattles, debts, etc. as it appeareth by the statute made A. 50. Ed. 3. 1. R. 2. 2. R. 2. 3. H. 7. 13. El. & 27. El. But as deceit and fraud increased in this realm, so new penalties, and greater punishments were invented from time to time to inflict upon the transgressors therein. And because feigned, covenous, and fraudulent Feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgements, & executions of lands and tenements, goods and cattles being devised of covin & guile, to defraud creditors, and others of their just and lawful actions, debts etc. be not only to the let of the due course and execution of law, & justice, but also to the overthrow of all true and plain dealing, bargaining, and chevisance between man and man, without the which no common weal, or civil society can be maintained or continued: Therefore by a Statute made A. 13. El. it was enacted; Stat. 13. El. 5 Stat 29. El. 5. That all and every Feoffment, gift, grant, bargain, alienation, Fraudulent deeds to avoid other men's debts and duties. and conveyance of lands, tenements, hereditaments, goods & cattles, or of any of them; or of any lease, rent, common or other profit or charge out of the same lands, hereditaments, goods, etc. or any of them by writing or otherwise; And all and every bond, suit, judgement, and execution at any time had or made, sithence the beginning of Queen Elizabeth's reign, or at any time hereafter to be had or made, which have been, and are devised, & contrived of malice, fraud, covin, collusion, or guile, to the intent, etc. to delay, hinder, or defraud creditors, & others of their just & lawful actions, suits, debts, accounts, damages, penalties, forfeitures, hariots, mortuaries, or reliefs, shallbe taken & deemed only as against that person, his heirs, executors, successors, or assigns whose actions, suits, debts, accounts etc. by such guileful, covenous, or fraudulent deeds, devices, practices as is aforesaid, are, shall, or mought be in any wise disturbed, hindered, delayed, or defrauded, to be clearly void & of none effect, any colour, feigned consideration, expressing of use, or any other matter to the contrary notwithstanding: And all & every the parties to such feigned, or fraudulent feoffment, gift, grant, alienation, bargain, conveyance, bond, suit, judgement, execution, Parties to fraudulent deeds. etc. or being privy and knowing of the same, or any of them, which shall willingly and wittingly, put in ure, avow, maintain, justify or defend the same or any of them, as true, simple, and done or made bona fide, and upon good consideration, or shall alien, or assign any the lands, tenements, goods, leases, etc. to them conveyed, or any part thereof, shall forfeit to the Queen etc. and the party grieved by such fraudulent feoffment, gift, bond, suit, etc. one years value of the said lands etc. leases, rents, or other profits, and the whole value of the said goods and cattles, and so much money as shall be contained in such covenous and feigned bond, to be recovered by A. I. B. P. etc. wherein no W. E. P. etc. And being thereof lawfully convicted, shall suffer imprisonment one half year, Common recoveries. without Bail or Mainprize. But common Recoveries had against Tenant in tail, or other tenant of the freehold of lands, the Reversion or Remainder, or right of Reversion or Remainder whereof then shall be in any other person, shall as touching such person, and his heirs, which hath the Reversion or Remainder thereof, be of like force, and none other, Vourcher in Formedon. as the same should have been if this Act had not been made: And no estate or conveyance, by reason whereof any person shall use any voucher in any writ of Formedon, shall be made void by this Act: But every such voucher in any writ of Formedon, shall be of like force, as if this act had not been made. Lands or goods assured bona fide, and upon good consideration. Provided always that this Statute shall not extend to any estate or interest in lands, leases, goods, etc. lawfully assured upon good consideration, and bona fide, to any person or persons, bodies politic or corporat, not having at the time of such conveyance etc. any knowledge of such fraud or collusion, as is aforesaid. Fraudulent deeds to avoid forfeitures. 29 If a man to prevent a forfeiture for a felony, or upon an outlarie, Co. li. 3. 82. will make a gift of all his goods, and after is attainted of felony, or outlawed, these goods shall be forfeited, notwithstanding this gift: for this word forfeitures specified in the foresaid Statute of Anno 13. St. 13. El. 5. El. shall not be intended only of the forfeiture of an obligation, Recognisance, or such like, but also of every thing which by the Law may be forfeited to the King, or to a Subject. And the same Act of Anno 13. El. shall not extend only to creditors, but also to all others, who have cause of Action, or suit, or to have any penalty or forfeiture. And if a man do bind himself and his heirs to pay to another a certain sum of money at a day assigned, and before the day doth come of payment, Co. li. 5. 60. the obligor dieth, leaving to his son and heir sufficient land to pay the same debt, & the heir doth enter and alien the same land before the obligée doth commence his suit upon the said obligation: If upon the suit of the same obligation the heir do plead nothing but descent, and upon the trial of that issue, the foresaid alienation be found by the jury to be made by fraud to deceive the said creditor of his debt, or that be pleaded, the said alienation shallbe void by the foresaid statute of 13. El. and the plaintiff shall recover. A deed of gift must be upon good consideration, and bona fide. 30 In the said Statute of Anno 13. El. there is one Proviso, St. 13. El. 5. That the said Act shall not extend to any estate or interest in lands, tenements, or hereditaments, leases, rents, commons, profits, goods, or cattles, which is, or hereafter shall be lawfully had, made, conveyed, or assured upon good consideration, & bona fide to any person or persons, or bodies politic or corporat, not having at the time of such conveyance or assurance to them made any manner of notice or knowledge of such covin, fraud, or collusion. By which Proviso it appeareth, that the gift which is within the compass of the same Proviso, must be both upon good consideration, and also bona fide. And therefore, whereas A. did owe to B. CC. l. and to L. a hundred pounds, Co. li. 3. 80. payable by two several obligations, L. brought an Action of debt against A. upon his said obligation of a hundred pound; during which suit A. being possessed of goods and chattles, to the value of two hundred pounds, in secret made a general deed of gift by writing, of all his goods and chattles, Reals and Personals whatsoever to B. in satisfaction of his debt, and notwithstanding A. continued in possession of the same goods, and sold some of them, and did share and brand the sheep with his own brand: and after L. had judgement to recover against A. and had a Fieri facias directed to the Sheriff of the County where A. dwelled, who by force of the Writ came to make execution of the same goods; but B. resisted him by force, claiming those to be his goods, in respect of his said deed of gift, and reported that it was a good deed of gift, and made upon lawful consideration: But in the starchamber this was adjudged a fraudulent deed, and within the statute of 13. Infallible marks of a fraudulent deed of gift. Eliz. for this deed of gift had all the badges and marks of fraud: for it was general, and without any exception of his apparel, bedding, or any other necessary thing: and the owner continued in possession of all the goods, and used them as his own: and the deed of gift was made in secret, and not sealed, delivered, nor published amongst his neighbours: And it was made whilst the suit was depending between L. and A. And here was a trust between the Donor of these goods and the Donée, for the Donor possessed the goods, and used them as his own; and fraud is always shadowed with trust, and trust is the cover of fraud: and the writing purported, that the deed was made honestly, truly, and Bona fide, which be not accustomed words in a deed of gift; and unusual terms in any Instrument do breed suspicion. And though this was a true debt due to B. and the consideration was good, yet this was not within the before specified Proviso, for that the deed of gift was not made also Bona fide; for no deed shall be adjudged to be made Bona fide according to the said Proviso, which is accompanied with any trust: and the words of the Proviso be in the copulative, upon good consideration and Bona fide: So that good consideration will not serve, unless the gift be also Bona fide, viz. to the intent, that the Donée shall have, carry away, and enjoy to his own use the possession of the same goods, without any trust expressed, or implied, and therefore whosoever will make a deed of gift of goods to an other in satisfaction of his debt, or for any other reasonable cause, How a deed of gift may be made without fraud. and will eschew therein the suspicion and question of fraud, or of a fraudulent gift, it is expedient for him to make the same deed openly, and before his neighbours, or some men of credit in those parts where he doth live, and not in any secret place, or before witnesses of small credit, or unknown in that Country; and further, that the goods which shall be aliened by that deed of gift be set down in particular, and praised to the uttermost value by indifferent persons, or seen that they be of the same value, and that the party to whom the gift is made do presently take them into his own possession, and carry them away: for to leave them in the Donors' possession is an undoubted argument of trust: which trust is a principal vail of fraud and deceit: for though between the Donor and the Donée this trust hath a pleasing & goodly show of confidence, and faithful, and true dealing: yet between the same Donor and his Creditors, it is mere fraud and deceit: for the Donor maketh his deed of gift of trust, hoping the Donée will not deceive him, who by the self same deed meaneth to deceive others. But as a deed of gift must be made Bona fide, viz. without any trust, so must it be made upon good consideration, A deed of gift must be made upon valuable consideration. viz. upon valuable consideration: For if a man being in debt to divers persons, will make a deed of gift of his goods to his son, his nephew, or near kinsman in blood, and deliver him possession thereof, and the Donée doth take and carry away the goods, and employeth them to his own use; In this case the deed is made bona fide, for that the Donée hath taken and carried away the goods, and it is made upon good consideration, viz. consideration of Nature, and blood, but it is not made upon valuable consideration, for money paid, or wares delivered, according to the intent and meaning of the Proviso aforesaid: And further, though here is no trust expressed, by the Donor in the Donée, yet the Law doth intend that there is a trust implied between the Donor and his son, nephew, or near kinsman, to whom he hath made this deed of gift, and therefore accounteth it void against Creditors, etc. 31 Forasmuch as divers persons after conveyances obtained, and purchases made of lands, tenements, leases, estates, and hereditaments for money, or other good considerations, may receive great prejudice by reason of fraudulent and covenous conveyances, estates, gifts, grants, charges, and limitations of uses before made, of, in, or out of lands so purchased: which said● gifts, grants, etc. are or shall be meant by the parties that so make the same to be fraudulent and covenous, of purpose, and intent, to deceive such as shall purchase the same: or else, by the secret intent of the parties, the same be to their own proper use, and at their free disposition, coloured nevertheless by a feigned countenance and show of words and sentences, as though the same were made bona fide, for good causes, and upon just and lawful considerations: For the remedy of which inconveniences, and for the avoiding of such fraudulent, feigned, and covenous conveyances, gifts, grants, charges, uses, and estates, and for the maintenance of just and upright dealing in purchasing of lands, Fraudulent assurances to deceive purchaser. etc. by a Statute made Anno 27. Elizab. it was ordained, St. 27. El. 4. St. 39 El. 18 That all and every conveyance, grant, charge, lease, estate, encumbrance, and limitation of use, or uses, of, in, or out of any lands, tenements, or other hereditaments whatsoever, had, or made at any time heretofore since the beginning of the queens reign that now is, or hereafter to be had or made, for the intent, and of purpose to defraud and deceive such person or persons, bodies politic, or corporat, as have purchased, or shall afterwards purchase in fee simple, fee tail, for life, lives, or years, the same lands, tenements, and hereditaments, or any part or parcel thereof, so formerly conveyed, granted, leased, charged, encumbered, or limited in use; or to defraud and deceive such as have, or shall purchase any rent, profit or commodity, in, or out of the same, or any part thereof, shall be deemed and taken only as against that person and persons, bodies politic, and corporat, his and their heirs, successors, executors, administrators, and assigns, and against all and every other person and persons lawfully having and claiming, by, from, or under them, or any of them, which have purchased, or shall hereafter so purchase for money, or other good consideration, the same lands, tenements, or hereditaments, or any part or parcel thereof, or any rent, profit or commodity, in, or out of the same, to be utterly void, frustrate, and of none effect: Any pretence, colour, feigned consideration, or expressing of any use or uses to the contrary notwithstanding. Parties to fraudulent conveyances, which do avow the same. All & every the parties to such feigned, covenous, & fraudulent gifts, grants, St. 27. Eli. 4● leases, charges, or conveyances before expressed, or being privy, & knowing of the same, or any of them, which shall wittingly put in ure, avow, maintain, justify, or defend the same, or any of them, as true, simple, & done, had or made bona fide, or upon good consideration, to the disturbance, or hindrance of the said purchaser or purchasers, leasees, or grantees, or of or to the disturbance or hindrance of their heirs, successors, executors, administrators, or assigns, or such as have, or lawfully claim any thing by, from, or under them, or any of them, shall incur the penalty and forfeiture, of one years value of the said lands, tenements, and hereditaments so purchased or charged: The one moiety whereof to be to the Queen, her heirs, and successors, and the other moiety to the party or parties grieved, by such feigned and fraudulent gift, grant, lease, conveyance, encumbrance, or limitation of use, to be recovered in any of the Q. Courts of Record by action of debt. B. P. or I. wherein no E. P. or W. etc. And also being thereof lawfully convicted, shall suffer imprisonment for one half year without bail or mainprize. St. 27. El. 4. This Act, or any thing therein contained, shall not extend, or be construed to impeach, defeat, make void, or frustrate any conveyance, Conveyances made upon good consideration, and Bona fide. assignment of lease, assurance, grant, charge, lease, estate, interest or limitation of use or uses, of, in, to, or out of any lands, tenements, or hereditaments, heretofore at any time had or made, or hereafter to be had or made upon, or for good consideration, and Bona fide, to any person or persons, bodies politic or corporate: any thing before mentioned to the contrary hereof notwithstanding. St. 27. El. 4. If any person or persons have heretofore since the beginning of the Q. reign that now is, made, or hereafter shall make any conveyance, gift, grant, Conveyances with condition of revocation or alteration. demise, charge, limitation of use or uses, or assurance of, in, or out of any lands, tenements, or hereditaments, with any clause, provision, article, or condition of revocation, determination, or alteration, at his or their will or pleasure of such conveyance, assurance, grants, limitations of uses or estates, of, in, or out of the said lands, tenements, or hereditaments, or of, in, or out of any part of parcel of them, contained or mentioned in any writing, deed, or indenture of such assurance, conveyance, grant, or gift, and after such conveyance, grant, gift, demise, charge, limitation of uses or assurance, so made or had, shall or do bargain, sell, demise, grant, convey, or charge the same lands, tenements, or hereditaments, or any parcel thereof, to any person or persons, bodies politic, or corporate for money or other good consideration paid or given, the said first conveyance, assurance, gift, grant, demise, charge or limitation not by him or them revoked, made void, or altered, according to the power and authority reserved, or expressed unto him or them, in and by the said secret conveyance, assurance, gift, or grant: Then the said former conveyance, assurance, gift, demise, and grant, as touching the said lands, tenements, and hereditaments so after bargained, sold, conveyed, demised, or charged, against the said bargainées, vendées, lessées, grantees and every of them, their heirs, successors, executors, administrators, and assigns, and against all and every person and persons which have, shall, or may lawfully claim any thing, by, from, under them or any of them, shall be deemed, taken, and adjudged to be void, frustrate, and of none effect by virtue and force of this present Act. St. 27. El. 4. Provided nevertheless, that no lawful mortgage, made or to be made Bona fide, and without fraud or covin upon good consideration, Mortgages. shall be impeached or impaired by force of this Act, but shall stand in the like force and effect, as the same should have done, if this act had never been had or made: Any thing, etc. This Act, nor any thing therein contained, St. 27. Eli. 4. shall extend or be construed to make good any purchase, Assurances of lands defeated before the Statute. grant, lease, charge, or profit, of, in, or out of any lands, tenements, or hereditaments, heretofore made void, defeated, or undone, by reason or any former conveyance, grant, or assurance, so as the party or parties, or their heirs or assigns, which have so defeated, or made void the same, were in actual possession, the first day of this present Parliament, of, or in the said lands, The authority of the court of starchamber. tenements, or hereditaments, whereof, or out of which any such purchase, grant, lease, charge, or profit was made. Neither this Act, nor any thing therein contained, shall extend in any sort, to restrain or impair the jurisdiction, power, or authority of the Court of starchamber. A purchasor doth know before of a fraudulent deed. 32 If a man seized of land in fee, Co. li. 5. 60. do make a fraudulent conveyance thereof, to the intent to deceive and defraud purchaser, contrary to the said Statute of Anno 27. Eliz. and doth continue in possession of it, and taketh the profit of it, and doth after enter into communication with a stranger for the sale of it to him: and by chance the same stranger hath knowledge of the same fraudulent assurance, and notwithstanding he doth bargain with the same party for his land, doth conclude with him, and taketh his assurance from him: in this case, the same purchaser, shall avoid this former fraudulent conveyance, made by the seller of this land, though he had notice thereof before: for the said Act of Anno 27. Elizab. by express words doth make the fraudulent conveyance void touching the purchasor: and seeing it is within the express purview of the same Statute, it is to be so taken and construed in repressing of fraud, and it is not the purchaser knowledge thereof, that doth make the fraudulent conveyance good which the said statute hath made void. The father maketh a fraudulent lease, and the son selleth the land. 33 If the father do make a lease for years of his land by covin, Co. li. 6. 72. to defraud others to whom he will demise, or sell the same land, (as all fraudulent leases shall be intended to be made to that end) and before he doth sell or demise the same land, he dieth, and his son and next heir knowing, or not knowing of the said lease, doth sell the same land for good consideration: Then the purchasor shall avoid this lease by force of the foresaid Statute of Anno 27. Elizab. for seeing the Law doth presume that every fraudulent lease is made generally to defeat purchaser, lessées, etc. within this generality every particular purchasor, farmor, lessée, etc. is included. And it is not material, though he who sold the land, did not make the former fraudulent lease, estate, or encumbrance: but if the estate be fraudulent, the purchasor shall avoid it, whosoever selleth the land. A woman's jointure made by fraud. 34 And the same Law is, if a man do convey land to the use of his wife, Co. li. 6. 73 for her jointure, by deceit and covin to defraud a purchasor to whom he intendeth to sell the same land: in this case, if the same fraud be proved by evidence, or confessed by pleading, the purchasor shall avoid the said wives estate. Fraudulent deeds to defeat successors of disapidations. 35 Because divers Ecclesiastical persons being possessed of mansion houses, and other buildings belonging to their Ecclesiastical Benefices, or livings, did suffer the same for want of due reparations partly to decay, and partly to fall down, converting the timber, lead, and stone to their own uses, and also made deeds of gift, and colourable alienations, and other conveyances of like effect of their good and cattles in their life time, of purpose after their deaths, to defraud their successors of such just Actions and remedies, as otherwise they might and should have had against the executors, or administrators of their goods, by the Laws Ecclesiastical of this Realm: for the redress whereof by a Statute made Anno 13. Elizab. it was enacted, St. 13. El. 10 St. 1. jac. 25 That if any Archbishop, Bishop, Deane, Archdeacon, Fraudulent deeds to defeat successors of dilapidations. Provost, Treasurer, Chancellor, chanter, prebendary, or any other having any dignity or office in any Cathedral, or Collegiat Church within this Realm, or any Parson, Vicar, or other Incumbent, of any Ecclesiastical living, whereunto do belong any houses or buildings, which by law or custom he is bound to maintain in reparation, do suffer any of his said houses or buildings to fall down, or run in decay, and after do make any deed of gift, alienation, or other conveyance of his movable goods or chattles in his life time, to the intent after his death to defeat his successors of such just Actions and Remedies, as otherwise they might have had for the same, against their executors, or the administrators of their goods: Then the Successors of him which shall make such deed, etc. shall and may commence suit, and have such remedy in any Court Ecclesiastical within this Realm, competent for the matter, against him or them to whom such deed of gift, or alienation shall be so made, for the amending and reparation of such Dilapidations, or just recompense for the same, as hath happened by his fact or default, in such sort as he might, should, or ought lawfully to have, if he or they to whom such deed of gift were made, were executor of him that made such deed, etc. or administrator of his goods, etc. 36 For the avoiding and preventing of covin or collusion in suing of Actions popular, which have been ordained from time to time to restrain and punish several sorts of offenders: and to the intent that the penalties of those Statutes might indeed be imposed upon the transgressors thereof, and the same offences might not be shadowed, and the meaning of the makers of those Statutes might not be deluded by the covenous, deceitful, and fraudulent suits of the same offenders friends, whose practices have been to cover, and not to punish the same offences: by a Statute made Anno 11. H. 7. St. 11. H. 7. 20. it was established, That if an Action popular be sued against any man by cellusion, An Action popular sued by Collusion. and the plaintiff in the same do recover against the defendant, or be barred; any other person may after sue against the same defendant another Action popular, with good faith, and shall in the same recover and have execution, if the Recovery or bar in the first Action be found to be by covin. And the defendant beign attainted of covin, shall have two years imprisonment, by process of Capias and Vtlarie, to be sued within the year after judgement given, or at any time after, until the defendant be had and imprisoned, and that aswell at the King's suit, as at every other persons, that will sue in that behalf. And no release of any common person, made to any party before or after an Action popular or indictment hanging, shall be available to let or surcease the said Action, indictment, process, or execution. Provided always, No covin shall be averred where there hath been trial by verdict. that no plaintiff or plaintiffs be in any wise received to aver any covin in any action popular, where the point of the same Action, or else collusion have been once tried, or lawfully found, with, or against the plaintiff by trial of twelve men, and not otherwise. St. 13. Eli. 7. 37 By the Statute made Anno 13. Elizab. entitled, An Act touching orders for bankrupts, Fraudulent possessing of Bonkerupts lands, goods, or debts. amongst other things it is enacted, That if at any time before, or after that any such person (viz. a Bankrupt) departeth the Realm, or shall keep his house, or otherwise absent himself, or take Sanctuary, or suffer himself to be arrested, outlawed, or yield his body to prison, any person do fraudulently by covin claim, demand, recover, possess, or detain any debts, duties, goods, cattles, lands, or tenements, by writing, trust, or otherwise, which were or shall be due, or appertain to any such offendor, other than such as he can, and doth prove to be due by right and conscience, for money paid, wares delivered, or other just consideration, to the just value thereof before the Commissioners thereunto authorized, or the more part of them, and the same to proceed (bona fide) without fraud or covin: Then every such person so craftily demanding, claiming, having, or possessing any such debt, shall forfeit double as much as he shall so claim, demand, detain, or possess, which said forfeiture shall be recovered, levied, and employed for the payment of the Creditors debts. 38 Forasmuch as it was oftentimes put in ure to the defrauding of Creditors, that such persons as were to have the administration of the goods of others dying intestate committed unto them, if they require it, would not accept the same, but suffer, or procure the administration to be granted to some stranger of mean estate, and not of kin to the intestate, from whom themselves, or others by their means did take deeds of gift, and authorities by letter of Attorney, whereby they obtained the estate of the intestate into their hands, and yet stood not subject to pay any debts owing by the said intestate, and so the creditor for lack of knowledge of the place of habitation of the Administrator could not arrest him, nor sue him: and if they fortuned to find him out, yet for lack of ability in him to satisfy of his own goods the value of that he had conveyed away of the intestates goods, or released of his debts, by way of wasting, the creditors could not have or recover their just and due debts: For reformation whereof by a Statute made Anno 43. Fraudulent administration of intestates goods. Elizab. it was ordained, St. 43. El. 8. That every person and persons that hereafter shall obtain, receive, or have any goods or debts of any person dying intestate, or a release, or other discharge of any debt or duty that belonged to the intestate upon any fraud as is aforefaid, or without such valuable consideration, as shall amount to the value of the same goods and debts, or near thereabouts (except it be, in, or towards satisfaction of some just and principal debt of the value of the same goods or debts to him owing by the intestate at the time of his decease) shall be charged and chargeable as Executor of his own wrong, and so far only as all such goods and debts coming to his hands, or whereof he is released or discharged by such Administrator will satisfy, Allowance of just debts and other lawful payments. deducting nevertheless to and for himself allowance of all just, due, and principal debt upon good consideration, without fraud, owing to him by the intestate at the time of his decease, and of all other payments made by him, which lawful Executors or Administrators, may, and aught to have and pay by the Laws and Statutes of this Realm. 39 By a Statute not imprinted, made Anno 27. H. 8. it was enacted, St. 27. H. 8. That all crafty and fraudulent Recoveries, feoffements, estates, gifts, grants, and leases, and every of them made by any of the chief governors of such religious houses, Fraudulent conveyances of Abbey lands as were given to the King by that Statute (viz. of such as had not in lands above two hundred pounds by the year) under their covent seals, within one year next before the making of the said act, should be utterly void. St. 31. H. 8. 13 And by a like statute made Anno 31. H. 8. it was ordained, That all leases of lands, tenements, or other hereditaments not usually let, leases of lands etc. in reversion, leases of lands etc. not reserving the old and accustomed rent, sales of wood, assurances of lands of the king's gift, or ancient foundation, without the king's licence made by any abbots, or governors of any Monasteries or other religious houses (which were before the making of the said act dissolved) within one year before the coming to the K. hands of the same Monasteries, religious houses &c. (or which after that should be dissolved, or come to the king's hands, should be utterly void: for the same leases, sales of wood, and assurances were intended to be made by fraud to deceive the king of certain commodities which the makers of that statute did mean and intend to give him. 40 Where maidens and women children of noblemen, gentlemen, and others, as well such as were heirs apparent to their ancestors, as others, having left unto them by their father, or other ancestor & friends, lands, tenements & hereditaments, or other great substance in goods & cattles movable, for and to the intent to advance them in marriage somewhat like, according to their degrees, and as might be most for their surety & comfort, as well for themselves as of all other their friends & kinsfolks, were ofttimes unawares to their said friends or kinsfolks, by flattery, trifling gifts, fair promises (and other such deceitful & fraudulent practices) of many unthrifty & light persons, & thereunto by the entreaty of lewd persons & others that for rewards bought and sold the said children, secretly alured, and won to contract matrimony with the said unthrifty & light persons, and thereupon either with sleight or force oft times were taken & conveyed away from their said parents, friends, or kinsfolks, to the displeasure of God, disparagement of the said children, & continual heaviness of all their friends. For the redress and prevention whereof, by a statute made Anno 4. St. 4. & 5. P. & M. 8. & 5. P. & M. it was enacted, Deceitful conveying a maid inheritable under xuj. years of age. That it shall not be lawful to any person or persons to take or convey away, or cause to be taken or conveyed away any maid or woman child unmarried, being within the age of xuj. years, out of, or from the possession, custody, or governance, and against the will of the father of such maid or woman child, or of such person or persons to whom the father of such maid or woman child, by his last Will, or by any other act in his life time, shall assign, bequeath, give, or grant the order, keeping, education, or governance of such maid or woman child: except such taking & conveying away as shallbe had, made, or done by or for such person or persons as without fraud or covin then shallbe the master or mistress, or the guardian in socage, or guardian in chivalry of or to such maid or woman child. St. 4. & 5. P. & M. 8. If any person or persons above the age of xiv. years shall unlawfully take or convey, The forf. for taking away a maid under 16 years of age. or cause to be taken or conveyed any maid or woman child unmarried, being within the age of xuj. years, out of, or from the possession, & against the will of the father or mother of such child, or out of, or from the possession of such person or persons as then shall have by any lawful ways or means the order, keeping, or education, or governance of any such maid or woman child, than every such person & persons so offending being thereof lawfully attainted or convicted by the due course of the law of this realm (other than such of whom such person taken away shall hold any lands or tenements by knight's service) shallbe 2. years imprisoned of his or their bodies without bail or mainprize, or else shall pay such fine for his or their said offence to the Q. and party grieved, as shallbe assessed by the Q. counsel in the star chamber at Westminster. If any such person or persons shall so take away, St. 4 & 5. P. & M. 8. or cause to be taken away as is aforesaid, Taking away & deflowering, or contracting matrimony with a woman etc. and deflower any such maid or woman child as is aforesaid: Or shall against the will, or unknowing of, or to the father of such maid or woman child, if the father be in life, or of or to the mother of such maid or woman child (having the custody & governance of such child, if the father be dead) by secret letters, messages, or otherwise, contract matrimony with any such maiden or woman child (except such contracts of matrimony as shallbe made by the consent of such person or persons as by the title of wardship shall then have or be entitled to have the marriage of such maid or woman child) than every such person or persons so offending, being thereof lawfully convicted, as is aforesaid, shall suffer imprisonment of his or their bodies by the space of five years, without bail or mainprize, or else shall pay such fine for his or their offence to the Queen and party grieved, as shallbe assessed by the queens Counsel in the starchamber. The queens Counsel of the starchamber by bill of complaint or information, Who may hear and determine these offences. and justices of Assize by inquisition or indictment, St. 4 & 5. P. & M. 8. have authority to hear and determine the said offences, upon every which indictments and inquisitions such process shall be awarded, as upon an indictment of Trespass at the common law. If any woman child, or maiden, being above the age of xii. St. 4 & 5. P. & M. 8. years and under xuj. A woman consenting to an unlawful contract. do at any time consent to such person that so shall make any contract of matrimony, contrary to the form and effect of this statute: then the next of her kin, to whom the inheritance should return or come after her decease, shall from the time of such assent, have and enjoy all such lands, tenements, and hereditaments, as she had in possession, reversion, or remainder, at the time of such assent, during the life of such person that so shall contract matrimony: and after the decease of such person so contracting matrimony, them the said lands shall descend, revert, remain, and come to such person or persons, as they should have done in case this act had never been made, other then to him only that so shall contract matrimony. But this act shall not extend to take away or diminish any liberty, custom, St. 4 & 5. P. & M. 8. or authority, concerning any orphans within the City of London, or any other City, Borough, or Town, where Orphans Orphans. are commonly used to be provided for, either by grant, or by custom: But the Lord Mayor of the city of London, and the Aldermen of the same, and every other head Officer of any other City etc. where such Orphans be provided for, shall and may have & take like rule, order, keeping, and charge of such Orphans, and of all their lands, tenements, goods, & cattles, as heretofore they used, or lawfully might have had & used, if this act had not been made. There was grandmother a widow, mother a widow, & ij. daughters, Co li. 3. 37. the grandmother being seized of certain land in see holden in socage, did by her last will in writing bequeath the same to the said ij. daughters, & to the heirs of their ij. bodies begotten, by even portions, equally to be divided, the remainder to the mother, being her sole daughter and heir apparent & her heirs: and after the mother married a second husband, and then the grandmother died, after whose death both the said daughters entered into the said lands so devised unto them: and then the younger daughter being between the age of xiv. and xuj. years, and living in house with her father in law and mother, of her own will and forwardness, and with the consent and agreement of her father in law, departed forth of his house in a morning, and the same day in another place married a husband: In this case it was adjudged, that the said younger daughter had forfeited her moiety or half part of the said lands so devised unto her, The daughter's forfeiture for marriage without her mother's consent. by her contracting of Matrimony, and that her said mother should take the benefit of the said forfeiture; for the mother had the custody and government of the said daughter at the time of the said contract, by the special words and provision of the said statute, which government was annexed to the person of the mother jure naturae, and was not transferred to her second husband by her marriage, as her lands and goods were, and so her husband's consent was not material, nor that consent which the meaning of the makers of that statute did respect and provide for. And though the daughter was forth of her mother's house at the time of the contract of marriage, yet in the judgement of law the mother had then the custody of her, which was inseparable from her person. And seeing the foresaid stat. of 4. St. 4. & 5. P. & M. 8. & 5. P. & M. doth give the forf. to the next of the kin to whom the inheritance should descend or come after her decease, during the life of such person that so shall contract matrimony, therefore the party must be of the blood, & next of the blood to whom the inheritance upon such forf. shall descend or come, which is the mother, & not the eldest sister (for administration may be granted of the goods of the son, or of the daughter, dying intestat, to the father or mother, as to the next of the blood of the party deceased, according to the stat. of an. 21. H. 8. 5.) And further, though the elder sister be of kin to the younger, yet in this case if the younger have any issue, her land should descend to her issue; and if she have no issue, it should remain to her mother: for that the elder and younger sisters were tenants in common in tail, though they never made partition indeed, the remainder thereof to their mother in see, by force of the said devise of their grandmother, who by her will meant and ordained, that the land should be divided, and that one of them should not enjoy the whole as survivor to the other. 41 Having written of deceits and frauds practised or performed by some particular persons to others, as by the tenant to his Lord, Several deceits prohibited by several Statutes the debtor to the creditor, the seller to the purchaser, the lessor to the lessée, etc. I am now to express and discover some other guiles, frauds, and falsehoods, which the offenders therein do endeavour to put in use or practise, not only against any one, two, or more special persons (as in the cases aforesaid) but against every person that shall put them in trust, or otherwise shall have occasion to use them, or theirs, which our stat. laws have accused, and condemned to be offences, and have inflicted upon the transgressors thereof several punishments. As, by the stat. of Anno 9 St. 9 H. 5. 8. H. 5. falsifiers and counterfeiters of deceitful and untrue weights, Counterfeiting of weights deceitful. being attainted thereof, shallbe taken by Iust. of peace, Sheriffs, Eschetors, & other commissioners, & kept in prison without mainprize, until they have made fine and ransom according to the Iust. discretion. St. 23. H. 8. 4 By the stat. of An. 23. H. 8. If any diminish a barrel, a kilderkin, or firkin, to the deceit or hurt of another, Deceit by diminishing of a vessel. by taking out the head or any staff, he shall forf. iij. iiij. d. and be punished by the discretion of the chief officer, Deceitful things upon fustian. before whom the offence shall be presented, and the vessel shall be burned. By the stat. of An. 11. H. 7. Sat. 11. H. 7. 27. If any denizen or foreigner shall use irons or other deceitful thing upon fustians unshorn, to break off the nap and cotton of the same, but only the broad shears, he shall forfeit for every offence twenty shillings to the king and him that will sue. By the statute of Anno 18. Deceit in goldsmiths work●. El. If any Goldsmith do make any goldsmiths work, Sta. 18. El. 14 or plate, which shall be touched, marked, or allowed for good by the Wardens or Masters of that Mystery, and that in the same there shall be found any falsehood or deceit, than the said Wardens and Corporation shall forfeit the value of the thing exchanged or sold, to the king and the party grieved. By the Statute of Anno 1. Deceitful using of linen cloth. Eliz. If any do cast, or cause to be cast, St. 1. El. 12. any piece of linen cloth over a piece of timber, and doth by any device, rack, draw, and stretch the same of length and breadth, and then doth beat it, and cast deceitful liquors mingled with chalk or other things, upon it: or doth use any other deceitful thing, whereby it shallbe the worse, for the use thereof, than he shall forf. the same to the K. and him that will sue for it, be one month imprisoned at the least, and pay such fine as shall be assessed by the justices before whom he is condemned. By the Statute of Anno 19 Deceits in weights or beams for pewter or brass. H. 7. St. 19 H. 7. 6 4. H. 8. 7. If any person using buying and selling of Pewter or Brass, do occupy any false or deceitful beams or weights, of the said wares, he shall forfeit xx. s. to the King and the party that will sue. And if he be not able to pay so much, he shall be put in the stocks until the next Market day, and then set on the Pillory all the Market time. By the Statute of Anno 23. Deceit in winding of wool. H.S. No person shall wind, or cause to be wound, St. 23. H. 8. 17. any fleece of wool, not being sufficiently washed, nor put in a fleece any clay, lead, stones, sand, tails, deceitful locks, cot, calls, cumber, lambs wool, nor any other thing whereby the fleece may be the more weighty, to the deceit and loss of the buyer, upon pain to forfeit for every fleece vj. pence, to the king and finder and proover of the same deceit. Deceit in packing of wool. By the Statute of Anno 8. H. 6. St. 8. H. 6. 22 If any wool packer do make any other but good and due packing, he that feeleth himself grieved thereby, shall have his action of Trespass and deceit at the Common law against him. And if any stranger do force, clack, or beard any wool, he shall forfeit the same, or the value thereof, and be imprisoned. By the Statute of Anno 23. Deceit in using of wax or honey. Eliz. St. 23. El. 8. Every person which in the making and melting of wax or honey, shall use any deceit by mingling the same with rosin, t●llow, turpentine, or any other deceitful thing, to the intent to sell, or offer the same to be sold, shall forfeit the same mingled wax or honey. And if it be sold before the corruption shallbe found, than he shall forf. ij. s. for every pound to the K. & the party deceived, Deceit in Upholsters. if he will sue. By the stat. of An. 11. H. 7. & An. 5. E. 6. St. 11. H. 7. 19 5. E. 6. 23. If any person shall make to the intent to sell, or offer to sell, any featherbed, bolster, or pillow, except the same be stuffed with dry pulled feathers, or clean down only, without mingling of scalded feathers, fen-downe, thistle down, sands, lime, gravel, hair, or any other deceitful or corrupt stuff: or shall make to the intent to sell, or offer to put to sale, any quilt, mattress, or cushions, which shall be stuffed with any other thing than feathers, wool, or flocks alone, he shall forfeit the same so sold, or offered to be sold, to the K. and him that will sue. By the stat. of Anno 1. Bringing in deceitful hops jac. If any foreigner, denizen, or Englishman, shall bring, St. 1. jac. 1●. or cause to be brought into this realm, out of any foreign dominion beyond the sea, any deceitful hops mixed with powder, dust, sand, or other soil whatsoever, he shall forf. the same hops. And if any Brewer of ale or beer, which shall buy the same brought from beyond the seas, or growing within this realm, shall spend the same about the brewing of ale or beer to be sold, being corrupt or mixed with powder, dust, or any soil whatsoever, he shall forf. the same, or the value thereof to the K. and him that will seize or sue for the same. For the avoiding of great deceits committed in selling of sundry sorts of corrupt and mingled spices, drugs, wares, St. 1. jac. 19 and other merchandizes garbleable, by a statute made Anno 1. Deceit in spices & drugs. jac. it was ordained, That all spices, wares, drugs, and other merchandizes garbleable, shall for the fees usually allowed in that behalf, be sufficiently garbled and divided, and after sealed by the garbler, his deputy or servant, before the same be sold, & shall not after be mixed with any garble, upon pain of the forf. of the same, or the value thereof, Deceit in Woollen cloth to the King and him that will sue for the same. And because in several ages there have been divers & many deceits and frauds practised & put in ure in the spinning, carding, & dying of wool & woollen yarn, & in the making, weaving, fulling, watering, tucking, milling, rowing, dying, thicking, folding, pressing, tacking, mingling, tentering, straining, stretching, measuring, searching, marking, & sealing of woollen cloth, & in the length, breadth, & weight thereof, to the prejudice & hindrance of the buyers or wearers of the same: for the prevention & restraint whereof, by the statutes made Ann̄ 2. E. 3. 14. 3. R. 2. 2. 13. R. 2. 11. 4. H. 4. 6. 7. H. 4. 10. 13. H. 4. 4. 6. H. 8. 9 25. H. 8. 18. 27. H. 8. 12. 3. Ed. 6. 2. 5. Ed. 6. 6. 4. & 5. P. & M. 5. 8. El. 12. 23. El. 9 27. El. 18. 35. El. 10. 39 El. 20. 43. El. 10. 3. jac. 16. it was ordained & enacted, how the wool provided for the making of cloth to be sold, shall be spun, carded, & died, and of what length, breadth, & weight several sorts of clothes wrought in several counties, cities, towns, and parts of the realm made to be put to sale, shall and aught to be, and how & in what manner & sort the same several clothes shall be made, woven, fulled, watered, tucked, milled, rowed, died, thicked, folded, pressed, tacked, mingled, tentered, strained, stretched, measured, searched, marked, & sealed, & several penalties be inflicted upon the transgressors therein, if any of the same be omitted, or otherwise used than they ought to be. Every of which to set down particularly, or so much thereof as at this present are reputed in force, would require a large discourse or whole Treatise by itself. And the which I do the rather refrain to set down & express, because it is doubtful and disputable, whether any branch or article in either of the foresaid statutes or any other statute do repeal, diminish, or alter the force of any other former statute or branch of statute. And therefore consider of three several branches of repeal in the before mentioned statutes of Anno 5. Ed. 6. 6. 8. El. 12. & 43. El. 10. Et quaere. 42 As the governors of this state have been provident from time to time to prevent & punish deceits and frauds, when they were practised towards men's lands, leases, annuities, rents, debts, or other goods, cattles, or rights, so have they taken care, that man's health shallbe preserved, & their bodies defended from feeding upon deceitful & corrupt victual, & have ordained laws to punish those who in steed of good, deceived men with bad, corrupt, & unwholesome uïands: as it appeareth by the stat. made An. 51. H. 3. & An. 51. E. 1. whereby it is ordained, That a butcher the selleth swine's flesh measled, St. 51. H. 3. 3 St. 51. Ed. 1. or flesh dead of the morion, Deceit by selling of unwholesome victuals. after that he shallbe convict thereof, for the first time shallbe grievously amerced, the second time he shallbe adjudged to the pillory, the third time he shallbe imprisoned, & make fine, & the fourth time he shall forswear the town. And in this manner shall it be done of all that offend in like case, as of cooks that seeth flesh or fish any ways that is not wholesome for man's body, or after that they have kept it so long, that it looseth the natural holesomenesse, then seeth it again, and sell it. And in like sort, St. 39 El. 10 by one other statute made An. 39 El. it was enacted, That if any alien or stranger born, or any denizen or natural born subject of this realm shall bring into any haven, port, creek, or town of this realm any salt fish or salt herrings which shall not be good, sweet, seasonable, & meet for man's meat, & shall offer the same to be sold, and shall be warned by any officer of such Port etc. where the same shallbe offered to be sold, that the same be not seasonable, nor meet for man's meat: Then if he or they shall after that offer any of the said unseasonable fish to be sold to any person within this Realm: or being an alien borne, and no denizen, shall not departed with the same from the said Haven, Port, or Town so soon as conveniency will serve: Then all and every person, owners thereof, shall forfeit to the Queen all the said unseasonable fish, unmeet for man's meat, as is aforesaid. And by a statute made Anno 4. Ed. 3. it was established, St. 4. E. 3. 12 That assay shall be made of wines twice every year, once at Easter, and another time at Michaelmas, and more oft if need be, by the lords of the Towns, and their Bailiffs, and also by the Mayors and Bailiffs of the same towns: and all wines that be found corrupt shall be powered out, and the vessels broken. ❧ Extortion, Exaction. 1 EXtortion is a wrong done by an Officer, What is Extortion. as Ordinary, Archdeacon, Official, Mayor, bailiff, Sheriff, Escheator, Coroner, undersheriff, Auditor, Receiver, Clerk, or other Officer, or by any other by colour of an office, in taking of an excessive reward or fee, and more than the law doth allow him, for execution of his said office: which offence in some degrees is worse than the privy picking of a man's purse in secret, and the transgressor in a sort may be compared to the Fréebooter, which with drawn sword and with menacing words assaulteth the travailer by the way, who casteth down his purse to him for fear of further hurt: And so is the poor suitor many times enforced to do to the Officer, when of necessity he must use his help. It is a thing most odious and offensive to the justice and peace of the Realm, and to all the members thereof, that those men who be specially made choice of, and principally selected to serve their prince and country, and to further the execution of justice in their offices and places, and be sufficiently rewarded with convenient stipends for their pains therein, should in contempt of the law assess their own fees, in a sort put their hands in other men's purses, and there take what they will, and thereby do wrong, under the colour and shadow of justice. Exaction is a wrong done by an officer, What is Exaction. or by one pretending to have authority, in demanding and taking reward or fee for that matter, cause, or thing, which the law doth allow no fee at all. And as our common & statute laws have declared, which offences or acts they do condemn and adjudge as Extortions and Exactions, so have they prescribed in most cases several penalties to be inflicted upon the several transgressors therein, leaving the residue to be punished at the king's pleasure, or by the discretion of such of his judges, justices, or others by his commission authorized, before whom the offenders shall be thereof convicted. And further, our said statute laws have set down for the most part, what fees or duties the suitor ought to pay to the officer, & the officer is to demand of him; to the intent that the one shall not be ignorant what to offer, nor the other what to require; and to the end, that the Law having written it in a sort in the officers forehead what his duty is, he may blush when he looketh in the suitors face, and demandeth more. 2 I will begin with an Exaction, that no former generation did taste of, hear of, or fear, but it hath sprung up of later years, & been greatly exclaimed of, and condemned in this our present age (which is taking of money, or some other reward for a Report or Certificate) wherein the offendor most commonly doth a double injury, and to two several persons, viz. first to him whose money, fee, or other reward he taketh for the favourable making of that report in his behalf, whereas the law doth allow him none for reporting, but otherwise bountifully rewardeth him for that and all such other pains, and next and chiefly to him, in prejudice of whom, or whose case he maketh that report. He doth not now indifferently respect the cause in question, but bendeth his eye upon the reward which he hath received, and deviseth to accomplish the request of the one, and yet to yield to the other not the effect, but some colour of justice. The King at his coronation doth promise to all his subjects, Mag. Chart. St. 9 H. 3. 29 Quod nulli vendemus, nulli negabimus, aut differemus justiciam: whereupon the whole realm did take it unkindly at their hands, who being the king's Substitutes in place of justice, and receiving but a small particle of his authority, would do then all the said offences at once, and sell, deny, and defer justice to some of the king's subjects, & certify that for good which was bad, or that for justice which was mere injury: Or if they did make report and certificate of that which was just and true, would sell it, and take money or other reward for it, which the king himself upon his oath refuseth to do. And therefore, because all ex●●tions, extortions, and corruptions be odious as well in this, as in all other well governed Commonweals, and to the intent to prevent the like enormities in this and other ages, by a statute made Anno 1. jacob. it was enacted, St. 1. jac. 10 That no person to whom any order or cause shallbe committed, Exaction by taking or reward for a report. or referred, by any of the King's judges, or Courts at Westminster, or any other Court, directly or indirectly, or by any act, shift, colour, or device, have, take, or receive any money, fee, reward, covenant, obligation, promise, agreement, or any other thing, for his report or certificate, by writing, or otherwise, upon pain of forfeiture of one hundred pounds for every such report or certificate; and to be deprived of his office and place in the same Court: The one moiety to be to the king, his heices etc. the other moiety to the party grieved, which will sue for the same at any time during the said suit, or within one year after the same cause discontinued or decreed: and in his default of such suit, to him or them that will sue for the same by original writ, B. P. or I. in the King's Court of starchamber, or in any of his Courts of Record at Westminster: in which suit by B. P. or I. no W. E. P. S. P. or any other delay shall be admitted. The clerks duty. Provided nevertheless, That it shallbe lawful for the Clerk to take for his pains for writing of every such report or certificate twelve pence for the first side, and two pence for every side after, and no more, upon pain to forfeit ten shillings for every penny taken, over and above the said sums to be had and recovered as aforesaid. Extortion in the sheriff, coroner, & other officers. 3 For that the kings of this Realm have allowed to their Officers from time to time sufficient Salaries to maintain them, according to their estates and degrees, to the intent that they should not otherwise extort any thing from their subjects, but such fees & duties, as the ancient customs, laws, or statutes of the realm did allow them. Therefore by the statute of West. 1. it was ordained, That if any sheriff, coroner, St. 3. E. 1. 26 or other officer of the kings do take any thing to execute his office, but only that which the king alloweth him, he shall render double to the party, and shallbe punished at the king's pleasure. St. 3. E. 1. 29 4 To prevent extortion in certain Officers of the judges, Extortion in a Sergeant, Crier, or Marshal, of a judge. by the same stat. of West. 1. it was enacted, That if the Serient, Crier, or Marshal of any justice, do wrongfully take money of any which doth recover land, obtain his suit, levy a fine, or prosecute any suit touching any plea of the Crown, he shall be punished at the king's pleasure, and yield triple damages to the party grieved. And if he be a Sergeant of fee, his Office shallbe seized into the K. hands. But in an attaint, 29. Ass. p. 13 if the plaintiff be nonsuit, every of the petit jury shall pay xii. d. to the Marshal, and be discharged. 5 To eschew extortion which in some cases before had been committed by some Coroners, St. 1. E. 1. 10. St. 1. H. 8. 7 first by the stat. of anno 3. E. 1. Extortion in a Coroner. and after that by the stat. of anno 1. H. 8. it was established, That a Coroner upon request made to him to come, and inquire upon the view of any person slain, drowned, or otherwise dead by misadventure, the same Coroner shall do his office diligently, upon the view of the body of every such person or persons, without taking any thing therefore, upon pain to every Coroner that will not endeavour himself to do his Office, as is aforesaid: or that he taketh any thing for doing of his Office upon every person dead by misadventure, for every time forty shillings. 27. Ass. p. 14 And upon the said statute of Anno 3. Ed. 1. two Coroners were indicted of Extortion, for that they had taken of some of the K. people, half a mark at several times, contrary to the foresaid stat. and their oaths, and therefore they paid a fine to the King. 6 Because the Sheriff of every County is a great and necessary Officer in the Commonweal, and used as a special instrument to the furtherance of justice, in all suits pursued at the common law, and his service is employed in the beginning, prosecuting, and ending of the most of them: therefore as the law hath always had a special regard of him, and foreseen that he shallbe a man of wisdom, of worth, of credit, countenance, and ability, and that he shall be allowed a convenient stipend, and salary for his pains in most cases: so doth she carry a vigilant and watchful eye upon him, and his inferior Officers, or Substitutes, knowing what grievous oppressions might ensue, if she should leave a man of his authority, and necessary employment, at liberty to dive at his pleasure into other men's purses, and to take what he would; and therefore she hath restrained him, his Undersheriff, bailiff of Franchise, and other bailiff within certain lists, and assigned them what they shall take for Arrests, Attachements, Mainprises, letting to Bail, and serving of Executions, which if any of them do exceed, he shall forfeit the penalties hereafter expressed, and be adjudged an extortioner: Extortion in Sheriffs, Vndersherifs bailiffs. As appeareth by the stat. of An. 23. St. 23. H. 6. 10. H. 6. whereby it was ordained, That no Sheriff, Undersheriff, bailiff of Franchise, nor any other Bailif, by occasion, or under colour of his Office, shall take any other thing, by themselves, or by any other person to their use, or to their profit, of any person by any of them arrested, or attached, nor of any other for them, for the omitting of any arrest or attachment to be made by their bodies, or of any person by any of them by force or colour of their office arrested or attached, for fine, fee, mainprize, letting to bail, or for showing any ease or favour to any such person so arrested, The fees of the Sheriff for arrests, etc. for their reward or profit, but such as followeth, viz. The Sheriff xx. d, the bailiff which maketh the arrest or attachment iiij. d. the Gaoler (if the prisoner be committed to his ward) iiij. The Sheriffs duty for the making of a copy of a Panel d. The Sheriff, Undersheriff, Sheriffs Clerk, Steward, or Bailif of Franchise, servant to the bailiff, or Coroner, shall not take by colour of his office, by himself, nor by any other person to his use, any thing of any person, for making of any return or panel, and for the copy of a panel iiij. d. No Sheriff, nor none of the officers aforesaid, shall take, or cause to be taken or made any obligation by colour of their office, but only to themselves, of any person, nor by any person which shall be in their ward by course of the law, but in the name of their office, and upon condition written, that the said prisoners shall appear at the day of the said writs, bills, or warrants, and in such places as the said writs, bills, or warrants shall require. And if any of the said Sheriffs, or other officers aforesaid, take any Obligation in any other form, by colour of their offices, it shall be void. And he shall take no more for making of any such obligation, The Sheriffs, etc. forfeiture for extortion. warrant, or precept by him to be made, but iiij. d. And all Sheriffs, Vndersherifes, Clerks, bailiffs, Gaolers, Coroners, Stewards, bailiffs of Franchises, or any other Officers or Ministers, which do contrary to the foresaid ordinances, in any point of the same, shall lose to the party in this behalf endamaged or grieved, his triple damages, and shall forfeit xl. l. at every time that any do the contrary in any point of the same, whereof the king shall have the one half, to be employed only to the use of his house, & the party that will sue, The warden of the Fleet. the other. But the Warden of the Fleet, and of the K. palace at West. shall not be prejudiced by this ordinance, in his duty of his office. Extortion in a Sheriff for sparing of a juror. 7 To the intent that the Sheriff nor any of his officers should take any reward, for the sparing to return any juror, and by that means commit extortion, by a stat. made anno 27. El. it was provided, That if any Sheriff, St. 27. El. 6. Undersheriff, Sheriffs deputy, Sheriff or Vndersherifes Clerk, or any bailiff of Franchise, shall receive, have, or take, by himself, or any other, any sum of money, reward, or other profit, directly or indirectly, or do take any promise, make any agreement, or assent to have any sum of money, reward, or other profit, directly or indirectly, of any person or persons, for the sparing, not warning, or not returning of any person to be sworn as a juror, for the trial of any issue joined in any of the courts of the K. Bench, Common Pleas, and Exchequer, or before any justice: then every Sheriff etc. so offending, shall forfeit for every such offence v. l. to the K. and I. to be recovered in any Court of Record by A. B. P. I. etc. wherein no W.E.P. etc. How much Sheriffs may take for serving of an execution. 8 And for that our later age thought it as expedient to prevent extortion or oppression in Sheriffs and other their Officers in serving of executions, as the former age did in making of arrests or attachements, etc. and to the intent that the Sheriff and his Officers might know what to demand and take for the serving of an execution, without danger of extortion, and that the suitor might be ascertained what to offer and pay therefore, without any scruple of receiving injury, by a statute made An. 29. Eliz or rather An. 28. St. 29. El. 4. St. 28. El. 4. Eliz. it was enacted, That it shall not be lawful, to, or for any Sheriff, Undersheriff, Bialife of Franchises, or liberties, nor for any of their, or either of their officers, ministers, servants, Bailiffs or Deputies, nor for any of them, by reason or colour of their or either of their offices, to have, receive, or take of any person or persons whatsoever, directly or indirectly, for the serving and executing of any extent or execution upon the body, lands, goods or chattels of any person or persons whatsoever, more or other consideration or recompense, than in this Act is and shall be limited, which shall be lawful to be had, received, and taken, viz. twelve pence of and for every 20. shillings, where the sum exceedeth not an hundred pounds, and six pence of and for every 20. shillings, being over & above the said sum of an hundred pounds, that he or they shall so levy, or extend and deliver in execution, or take the body in execution for, by virtue and force of any such extent or execution whatsoever, upon pain & penalty, that all and every Sheriff, undersheriff, Bailiff of Franchises etc. which at any time shall directly or indirectly do the contrary, shall lose to the party grieved his triple damages, & shall forf. xl. l. of lawful English money for every time that he, they, or any of them shall do the contrary, to the Q. & I. to be recovered by A. S. B. or I. wherein no W.E.P. Provided always, Execution within cities or towns corporat. that this act shall not extend to any fees to be taken or had for any execution within any city or town corporat. St. 2. H. 4. 8 9 By the stat. of An. 2. H. 4. it was established, Extortion in the chirographer of the common place That the Chirographer of the common place, nor his fermor, deputy, or lieutenant, shall not take any more than iiij. s. for any fine levied in the same court. And if the fermor, deputy, or lieutenant do take any more, he shall forf. his office, be excluded the same court, suffer one years imprisonment, & pay to the party grieved his triple damages: and the party grieved shall have his suit before the same justices. Sta. 33. H. 8. 39 10 By the stat. of Ann. 33. H. 8. it was enacted, Extortion in auditors, or their clerks. That if any auditor of the Exchequer, Duchy of Lancaster, & court of Wards and Liveries, or any of his clerks, or any other, to their or any of their use, shall take for the enrolment of any letters patents, decrees of the same courts, grants, or indentures of leases, or for the allowance of the same, above 3. s. 4. d. he so offending shall forf. 6. s. 8. d for every penny that he taketh above the foresaid sum, to the K. & I. etc. to be recovered by A. I. wherein no W.E.P. etc. And if any person do offer to any such auditor any such letters patents, decrees, or leases, to be enrolled, he shall enroll the same, or as much thereof as shall appertain to his office. St. 33. H. 8. 39 11 By the same stat. of An. 33. H. 8. it was moreover ordained, Extortion in the king's receivers. That every receiver of the Exchequer, Duchy of Lancaster, & court of Wards & Liveries, which shall pay to any person an annuity, pension, or other rent, shall (if the same person will upon the receipt thereof deliver unto him a sufficient acquittance, sealed & signed, testifying the same receipt) receive the same, without taking any reward therefore, upon pain to forf. for every penny or pennyworth received, 6. s. 8. d. And if the party do not deliver such a sufficient acquittance, but that the receiver or his clerk doth make the same, he shall have therefore 4. d. and if he take above 4. d. he shall forf. for every penny or pennyworth so taken, 6. s. 8. d. And if any Treasurer, Receiver, or Minister accountant, Extortion in them who do pay fees, pensions, etc. or their deputies, which shall pay to any person any fee, annuity, pension, duty, warrant, or rend, do retain, receive, or take of the party to whom he shall pay the same, in way of reward, or otherwise, above 4. d. for every l. that he shall pay, he shall forf. 6. s. 8. d. for every penny or pennyworth that he shall receive over, to the party grieved, to be recovered by A. B. or P. wherein no W. E. or P. etc. 12 By the stat. of An. 26. H. 8. it was ordained, Extortion in officers of the Exchequer. That if any Officer of the exchequer do take of any archbishop, bishop, or other person having charge with the collection and payment of the Tenth of Spiritual promotions, any reward for making his account or Quietus est in the same Exchequer, or for any thing concerning the Tenth, he shall forfeit his office, and make fine at the king's pleasure. Extortion in a clerk of the signet o● privy seal. 13 By the statute of Anno 27. H. 8. it was established, St. 27. H. 8, 11 That all and every Clerk, and Clerks of the Signet, and privy Seal, shall have and take for his or their writing of a warrant upon a Bill for Tales of reward, twelve pence: for the writing of a warrant for the gift of every office, twenty pence: for the writing of a warrant for a pension, annuity, or wages, twenty pence: for the writing of a warrant for a special Livery, or other perpetuity, six shillings eight pence: for the writing of a warrant upon every bill for a Congee deslier, royal assent, restitution of Temporalties, Donatives, Aduocations, Presentations, or other Ecclesiastical matter, three shillings four pence: for the writing of every warrant upon a Placard, Licence, Pardon, or sheriff's reward, two shillings: for the writing of every warrant upon a denizen, three shillings four pence: for the writing of a warrant for the keeping of an idiot, twenty pence: for the writing of a warrant for the keeping of a Ward, three shillings four pence. And no Clerk or Clerks of the Signet or privy Seal aforesaid, shall take for the writing of any manner warrant above specified, more large and ample fees than is before prescribed, upon pain of ten pounds to be forfeited to the K. & I. to be recovered by B.A.P.I. in any of the king's Courts, wherein no E. P. W. shallbe admitted. Extortion by officers of the faculties. 14 To the intent that the Clerk of the Faculties, St. 25. H. 8. 21. and his inferior officers and clerks might content themselves with their fees & duties assigned, & extort no more, by the statute of Anno 25. H. 8. it was enacted, That such as shall exact or receive of any suitor more for a dispensation, faculty, or licence, then is contained in the two books of one tenor of Taxes, shall forfeit ten times so much as he shall so extortiously receive & exact, to the K. his heirs & successors, & the party that will sue, to be recovered by A. B. P. wherein no E. W. P, shall be admitted. Extortion upon apprentices & freemen. 15 Because no Extortion should be committed upon apprentices when they begin or end their terms, by the stat. of Anno 22. H. 8. & Anno 28. St. 22. H. 8. 8 St. 22. H. 8. 5 H. 8. it was established, That no Masters, Wardens, or Fellowships of crafts, nor any of them, shall take of any apprentice, or other person, for the entry of the said apprentice into their said Fellowship, above the sum of ij. s. vj. d. nor for his entry when his years or term is expired, above iij. s. iiij. d. upon pain to forf. for every time that they or any of them shall offend contrary to this act, xl. l. to the K. and the I. etc. to be recovered by A. I. etc. wherein no P. E. etc. The fees of the officers of the court of wards. 16 Because the makers of our laws were willing to give forewarning to the officers of the Court of Wards to eschew extortion, St. 32. H. 8. 46. therefore by the stat. of An. 32. H. 8. it was enacted, That the master & officers of the Court of wards & liveries shall take for the fees of all process at the suit of the parties, under the privy seal of the same court, ij. s. vj. d. & for the fees of all commissions directed out at the suit of the parties ij. s. vj. d. & for recording of all appearances iiij. d. & no more. St. 26. H. 8. 3 17 By the statute of Anno 26. H. 8. The fees for obligations for first fruits. it was provided to avoid Extortion in the officers of the first fruits, That no person shall compel an other to pay for any writing obligatory to be made for the payment of the first fruits of Ecclesiastical livings to the King, above eight pence, nor for any acquittance for the receipt thereof, above four pence. 18 For that Eschetors should know what is their duty for the finding of offices, and for the execution of Writs, Extortion by Esc●cators. to the intent that they might thereby the easilier shun the danger of Extortion, if they will: by a statute made Anno 33. St. 33. H. 8. 22. H. 8. it was enacted, That if any Escheator doth take above the sum of xv. shillings for the finding of an office of any lands, tenements, or hereditaments, not exceeding the clear yearly value of five pound, viz. for the Escheators fee vj. s viii. d: for the writing of the office iij. s iiij. d: for the charges of the jury iij. s, and for the officers that shall receive the said office in any court of Record ij. s, he shall forfeit for every time so offending, v. l. to the K. and I. to be recovered by A. I. wherein no W.E.P. etc. And by the statute of Anno 23. St. 23. H. 6. 17. H. 6. it was ordained, That if an Escheator do take privily, or openly, by himself, or any other, above the sum of xl. s, for the execution of any Writ in one county, he shall forfeit for every offence forty pounds, whereof one half shall be to the King, and the other to him that will sue. 19 To prevent Exactions by the officers of the Admiralty upon those who travail into other Countries, St. 2. Ed. 6. 6 for the getting of fish, Exactions upon them who travail for fish. by a Statute made Anno 2. Ed. 6. it was ordained, That if the Admiral, or any officer, or minister of the Admiralty shall exact, receive, or take by himself, his servant, or deputy, of any merchant, or fisherman, any sum of money, doles or shares of fish, or any other reward, or benefit, for any licence to pass this Realm into Island, Newfoundland, Ireland, or other places commodious for the getting of fish, or for any other respect concerning the said voyages: he shall forfeit for the first offence triple the sum, or value of the reward so taken, to the King and him that will sue for the same, to be recovered by A.I. etc. wherein no W.E.P. etc. And for the second offence, shall lose his office, and make fine at the King's pleasure. 20 To the intent that the Marshal of the Marshalsey of the Court of the King's house may take such fees in open Court as were wont to be taken in the time of King Edward the third, and none other, The fees of the Marshal of the K. house and may thereby omit to commit Extortion: St. 2. H. 4. 23. by a Statute made Anno 2. H. 4. it was declared, That the said Marshal may take the fees hereafter following, viz. of every person which cometh by Capias to the said Court iiij. d, and if he be let to mainprize until his day ij. d more. And of every person being defendant which is impleaded of Trespass, and findeth two Mampernors to keep his day until the end of the plea ij. d. And of every person committed to prison by judgement of the steward, in whatsoever manner the same be, iiij. d, and of every ptrson delivered of felony iiij. d, and of every fellow let to mainprize by the Court, iiij. d. But if the Marshal, or any of his officers under him, do take any other fees, than are before declared, the said Marshal and every of his officers, shall lose their offices, A Servitor of bills in the Marshal's Court. and also pay to the party grieved triple damages, for the which the said party shall have his suit before the Steward of the said Court for the time being. A servitor of bills, which beareth a staff of the Court, shall take for every mile from the said Court until the same place, where he shall do his service, j d, and for xii. miles xii. d, & to serve a Venire facias, or a Distringas out of the same court the double. And if any Servitor of Bills do the contrary, he shall be imprisoned, and make fine to the K. after the discretion of the Steward of the same court, and also be forejudged and banished the same court. All which articles the steward at his coming into the country hath authority to proclaim, and put in execution. 21 And for that the kings of this realm have from time to time bestowed upon such as they assigned to be muster masters, or captains in times of wars liberal and bountiful stipends, and allowances, the rather, to the intent they should not exact, or make a pray, of such as should be, or then were soldiers: Therefore to prevent such like exaction, by a statute made Ann 4. & 5. St. 4. & 5. P. & M. 3. P. & M. it was ordained, Muster masters exacting money to spare soldiers. That if any person which shall be commanded by the Q. her heirs or successors, by commission, letters, or otherwise authorized, to levy muster, or to make men to serve in her wars, or otherwise for the defence of this Realm, do by any mean exact, levy, receive, or take, or cause to be taken any money, or other reward, or thing whatsoever, of any person for service in wars, or that shallbe appointed, named, or mustered to serve in any such service, or for the sparing, or discharging of such person from the said service, than he shall forfeit ten times so much, as he shall receive, exact, or take, to the Q. & I. to be recovered by A.I. etc. wherein no W.E.P. If any captain, petit captain, or other having charge of men, shall for any advantage or gain by him to be received, discharge, or licence any of the men, or soldiers appointed to serve in the wars under his rule, or order, to departed from the said service: or shall not pay unto his soldiers, Exacting by captains of their soldiers & to every of them their full & whole wages, conduct, and coat money, within x. days next after he shall have received the same: then the party offending in giving such licence, or discharge, shall forfeit for every such offence x. times the value of the thing so received, to the Q. & I. to be recovered by A. I. wherein no W.E.P. etc. And also he shall pay unto every such soldier from whom he shall withhold any such wages, conduct, or coat money, triple the sum so withholden. Extortion by taking of scavage of merchants. 22 Because Scavage, otherwise called Shewage was many times wrongfully, and extortiously taken by Magistrates of cities and corporat towns, of merchants that transported or brought their merchandises thither: therefore by a statute made Anno 19 H. 7. it was provided, That if any mayor, sheriff, St. 19 H. 7. 8 bailiff, or other officer, in any city, borough, or town within this realm, do distrain, take, or levy any custom called Scavage or Shewage of any merchant denizen, or of any other the K. subjects denizens, for any merchandise to the K. before truly customed, that is brought by land or water to be uttered in any city, borough, or town in this land: or if any mayor, sheriff, bailiff, or other officer in any city, borough, or town for non payment of the said scavage, let or disturb any merchants, or any other persons denizens, to sell and utter their merchandise by them brought into any city, borough, or town; then he which offendeth shall forfeit for every offence xx. l. to the K. & the party grieved, or any other that will first sue by A. of debt in any shire, wherein no W.E.P. shallbe allowed. But the mayor, sheriffs, & communality of London and every of them shall have such sums of money for scavage of every person denizen, as of right they ought to have. 23 Every of the chief justices of the King's Bench and Common Pleas, and the mayor of the Staple at Westminster, and the Recorder of the City of London, before whom any obligation being of the nature and force of a statute Staple shall be recognised, St. 23. H. 8. 6 according to the statute of Ann 23. H. 8. The justices & Clarks fee upon every Recognisance shall take for every such Recognisance iij. s iiij. d, & the clerk that shall write, make and enroll the same iij. s iiij. d, and for the certificate of every one such obligation xx. d. And if any of the said justices, Mayor, Recorder, or Clerk take of any of the K. subjects above the sum or sums to them limited by this statute, than the same offendor shall forfeit for every time so offending, xl. l. to the K. and I. to be recovered by A. I. wherein no W.E.P. etc. And by the Stat. of Ann 27. St. 27. Eli. 4. Eli. it was further ordained, That no Clerk of the same Recognizances shall or may take, for, or in respect of any search to be made for, or concerning any statute Merchant, or of the Staple, The Clerks fee for search. brought unto him to be entered, above ij. d for one years search, & so after the rate of ij. d for every year, & not above, upon pain to forfeit & lose to the party or parties grieved twenty times as much as he shall take, contrary to the true meaning of this Act: to be recovered in any of the K. courts of Record, by action of debt B. P. I. wherein no W.E.P. 24 Because it is well perceived, that learned and expert Attorneys be necessary members in our State, and great means to further justice, and to bring suits to their expected ends, and that they must therefore disburse money for learned council, for process, for pleading, for copies, and many other things, and after receive the same again, with their own fees, and salary for their pains of their Clients: Therefore the Law (as a provident mistress) taking care that Attorneys and Solicitors, shall not in any secret manner commit extortion, by charging their Clients with excessive fees, & unnecessary demands, St. 3. jac. 7. by a statute made Ann 3. jac. procured it to be established, Means for Attorneys to avoid the suspicion of extortion. That no Attorney, Solicitor, or servant to any, shallbe allowed from his Client, or master, of, or for any fee given to any Sergeant, or Councillor at law, or of or for any sum or sums of money, given for copies to any clerk or clerks, or officers in any court of Record at Westm. unless he have a ticket subscribed with the hand & name of the same Sergeant, or Councillor, clerk, clarks, or officers aforesaid, testifying how much he hath received for his fee, or given or paid for copies, & at what time, & how often. And all Attorneys and Solicitors shall give a true Bill unto their masters, or clients, or their assignees, of all other charges, concerning the suits which they have for them, subscribed with his own hand, & name, before such time, as they or any of them shall charge their clients with any the same fees or charges: An Attorney delaying of a suit, or demanding more than is due. And if the attorney or solicitor do or shall willingly delay his client's suits, to work his own gain, or demand by his bill any other sums of money, or allowance upon his account of any money which he hath not laid out or disbursed: then in every such case the party grieved shall have his action against such attorney, or solicitor, and recover therein costs and triple damages: And the said attorney & solicitor shall be discharged from thenceforth from being an attorney or solicitor any more. 25 For that the Stewards of Léets and court Barons, did of late years get into their own hands, and in their own names, or into the hands of some of their friends to their use, the profits and perquisites of the said Léets, and court Barons, whereby many suitors to the same Courts were injustly vexed, and by grievous fines and amerciaments, unduly punished, and much extortion was done unto the Tenants and Inhabitants where such stewards were, to make and obtain an undue & extraordinary gain to themselves: for the restraining whereof, A prevention of extortion in Stewards of Courts. by a statute made Anno 1. St. 1. jac. 5. jac. it was established, That no Steward, deputy Steward, or under Steward of any court Léete, or court Baron, shall directly, or indirectly in his own name, or in the name of any other, take, receive, or make benefit to his own use, in money, goods, or any other thing, to the value of twelve pence, or more, by virtue or colour of any demise or grant, hereafter to be made, of any of the profits, or perquisites, or amerciaments of any such Courts, whereof they are Steward, which rightfully shall belong to the Lords of the same: upon pain that every Steward offending contrary to the Tenor of this Act, shall for every such offence forfeit ten pounds, and to be disabled ever after to be Steward of such Court, or of any other: The one moiety of which forfeiture shall be to the K. etc. and the other to any party that will sue, to be recovered in any of the King's Courts of Record, by A. B. P. I. etc. wherein no E. P. or other dilatory plea shall be allowed. 26 To the intent that Gaugeors, and Searchers of barrels of fish should know what was due unto them for their pains, and take no more, nor commit extortion, Extortion in Gaugeors, Searchers, and Packers of fish. by a statute made Anno 11. H. 7. it was enacted, St. 11. H. 7. 23. That every Gaugeor, Packer, and Searcher shall take no more for gauging of a barrel of salmon, herring, fish, eels, half barrel, and firkin, than for every piece a farthing, and for his labour for searching and packing, if need be, of a barrel of salmon from head to head a penny, and for boning, naping, and packing of a barrel of fish, if need be, a penny, and for searching and for packing of a barrel of herring, if need be, two pence: and for searching and packing of every barrel of eels ij. d: and so in half barrels, and firkins of herrings, and eels, they shall take according to the former rate. And if any Gaugeor, Searcher, or Packer do the contrary, he shall lose his office, and also be imprisoned forty days. But the said Searcher, or Packer shall receive nothing of the said fees by colour of their office, but only for such Butts, Barrels, half Barrels, and Firkins, as by them shall be sufficiently searched and packed, and were not sufficiently packed before. 27 In the reigns of K. Edward the third, and K. Henry the fift, the Commons several times complained in parliament of divers extortions committed by Ordinaries, and their officers, in probat of Testaments, making of Inuentories, and giving of Acquitances, as it doth appear by the statute of Anno 31. Ed. 3. and Anno 3. H. 5. St. 31. Ed. 3. 4. St. 3. H. 5. 8. But because the former of those statutes inflicted no condign punishment upon the offenders therein, and the later is expired; A prevention of extortion in Ordinaries and their officers. and also, for that the same extortions enormity did increase: Therefore for the redress of the same, by a Statute made Anno 21. H. 8. St. 21. H. 8. 5 it was established, That nothing shall be demanded, received, or taken by any Bishop, Ordinary, Archdeacon, Chancellor, Commissarie, Official, nor any other person or persons whatsoever, having authority to take, or receive probation, insinuation, or approbation of Testament, or Testaments, by him, or themselves, nor by his, or their Registers, Scribes, Praisors, Summoners, Apparitors, or by any other of their Ministers, for the probation of any Testament, The Ordinaries duty for probat of Testaments. The goods not amounting to C. s. or for writing, sealing, praising, registering, fines, making of inventories, giving of Acquitances, of for any cause concerning the same, where the goods of the Testator of the said Testament, or person so dying do not amount clearly over & above the value of C. s. sterling: except only to the scribe to have for the writing of the probat of the Testament of him deceased, vj. d. And for the commission of administration of the goods of any man deceasing intestate, not being above the like value of C. s clear vj. d. And when the goods of the Testator do amount over and above the clear value of C. s, The goods not amounting to xl. l. and do not exceed the sum of forty pounds sterling; Then no Bishop, Ordinary, nor other person or persons whatsoever, having authority to take probation of any Testament, by himself, or any of his ministers, for the probation, insinuation, and approbation of any testament or testaments, or for the registering, sealing, writing, praising, making of Inuentories, giving of acquittances, fines, or any other things concerning the same, shall take, or cause to be taken of any person or persons, only three shillings six pence, and not above, whereof to the Ordinary for him and his ministers, two shillings six pence, and to the scribe the xii. d residue, for registering of the same. The goods exceeding xl. l. And where the goods of the Testator do amount above the clear value of forty pounds sterling: then the Ordinary by himself, nor any of his Ministers for the probation of any testament, or for the registering, sealing, etc. or for any thing concerning the same probat, shall take of any person but only five shillings, and not above, whereof to be to the said Ordinary for him and his ministers, two shillings six pence, and not above, and two shillings six pence residue to be to the scribe for the registering of the same: Or else the scribe to be at his liberty to refuse the two shillings six pence, and to have for the writing of every ten lines of the said testament a penny (whereof every line to contain in length ten inches.) And every such Bishop, Ordinary, or other person, having authority to take the probation of any testament, their Registers, Scribes, and Ministers, shall approve, insinuate, seal, and register the said Testaments, and deliver the same sealed with the seal of their office, to the executor or executors named in such testaments for the sums abovesaid, and in manner and form above rehearsed with convenient speed, without any frustratory delay. If any person die intestate, An administration granted. or the executors named in any such testament, refuse to prove the said testament: Then the Ordinary, or other person or persons, having authority to take probat of testaments, shall grant the administration of the goods of the testator, or person deceased, to the widow of the same person, or to the next of his kin, or both, as by the discretion of the same Ordinary shall be thought good, taking surety for the true administration of the same goods, & taking nothing for the said administration granted, unless the goods of the person so deceased amount above the value or sum of C. s. And in case the goods of the person so deceased amount above the value of C. s, and not above xl. l. then he & his officers shall take only ij. s vj. d, & not above. And in case any person or persons at any time require a copy or copies of a testament proved, or inventory made; The fees for copies. then the said ordinary, etc. or his ministers shall from time to time with convenient speed, without frustratory delay, deliver, or cause to be delivered, a true copy, or copies of the same unto the said person or persons demanding the same, taking for the search, & for the making of the copy of either of the said testament or inventory, but only such fee, as is before rehearsed for the registering of the said testament; or else the scribe or register to be at his liberty to demand, have, & take for every x. lines thereof, being of the proportion before rehearsed, j d. But where any persons having authority to take probat of testaments have used to take less sums of money than abovesaid, for the probat of testaments, or commission of administrations, or other cause concerning the same, they shall take such sums for the same, as they before the making of this act used to take, & not above. Every Bish. ordinary, archdeacon, chancellor, commissary, official, & other person & persons, having authority to take probat of Testaments, their Registers, Scribes, Praisors, Summoners, Apparitors, and all other their Ministers whatsoever they be, The forfeiture of the offendor that shall do, or attempt, or cause to be done, or attempted against this Act, in any thing, shall forfeit for every time so offending, to the party grieved in that behalf, so much money as he shall take contrary to this Act, and over that shall forfeit to the King and the party grieved ten pounds to be recovered by A. I. B. etc. wherein no W.E.P. And every of the same Bishops, and other persons, which shall incur the danger of such penalty, shall be charged only for himself, and none of them shall be chargeable to the penalty for others offences. Extortion is an Ordinary for the Seal of a Citation. 28 Shortly after the making of the foresaid Statute of Anno 21. H. 8. the grand Council of the Realm being as careful that Ordinaries, or their Officers, should no more commit extortion in sealing of Citations, than they might in proving of wills, granting of Administrations, or such like, did therefore by a statute made Anno 23. H. 8. ordain, St. 23. H. 8. 9 That if any Archbishop, Bishop, Ordinary, Official, Commissarie, or other person having spiritual jurisdiction, or any substitute, or minister of his, do ask, demand, take, or receive, more than three pence for the seal of a Citation, he shall pay to the party, of whom he doth demand, take, or receive the same, double damages, and costs, and shall forfeit for every offence ten pounds to the king, and I. to be recovered by A.I. wherein no W.E.P. &c. Mortuaries. 29 Because in former times it was uncertain, and by this means, oft times great question did grow, what, and how much Parsons, Vicars, or other spiritual men, or their farmers ought to take for Mortuaries, or Corpse Presents, after the death of their Parishioners: Therefore, to the intent that the same should be limited in certainty, and not be excessive, nor any Extortion, Exaction, or other wrong committed in the taking, St. 21. H. 8. 6 or receiving of them, by a Statute made Anno 21. H. 8. it was established, That no Parson, Vicar, Curate, or parish Priest, nor any other spiritual person, nor their farmers, Bailiffs, or Lessées, shall have, take, receive, or demand of any person or persons within this Realm, for any person or persons dying within the same, any manner of mortuary or Corpse present, nor any money, or other thing for the same, more than is hereafter expressed: Nor shall convent, or call any person before any judge spiritual, for the recovery of any such Mortuaries, The penalty for extorting for a mortuary. or any other thing for the same, more than is hereafter expressed: upon pain to forfeit for every time so demanding, receiving, taking, conventing, or calling any such person or persons before any spiritual judge, so much in value, as they shall take above the sum limited by this Act, and over that, forty shillings to the party grieved, contrary to this Act: for the which the party grieved shall have an action of debt by W. B. P. or I. in any of the K. Courts, A Legacy given to a spiritual person. wherein no W.E.P. etc. But it is lawful for any spiritual person to take any sum of money, or other thing, which by any person dying shallbe given & bequeathed to him, or to the high altar of the Church. No Mortuary or Corpse present shall be given or demanded of any person, St. 21. H. 8. 6 but in such place only where Mortuaries have been used to be paid and given: Nor any person shall pay Mortuaries in more places than one, that is to say, But one mortuary for any person. in the place of his most dwelling and habitation, and there but one mortuary. St. 21. H. 8. 6 No mortuary shallbe taken, or demanded of any person whatsoever he be, which at the time of his death hath in movable goods under the value of ten marks. No parson, curate, or other spiritual person, nor any of their farmers, The parson's duty for all Mortuaries. bailiffs or lessées, shall for any person dying, or dead, and being at the time of his death of the value in movable goods of ten marks or more, above his debts paid, and under the sum of thirty pounds, take for a mortuary above three shillings four pence in the whole: And for a person being at the time of his death of the value of thirty pounds above his debts paid in movable goods and under the value of forty pounds, there shall no more be taken for a mortuary then six shillings eight pence: And for a person having at the time of his death of the value in movable goods of forty pounds or above, to any sum, there shall no more be taken, paid, or demanded for a mortuary, than ten shillings in the whole. St. 21. H. 8. 6 No Parson, Vicar, Curate etc. or other, shall take, demand, or ask any mortuary, or other thing by way of mortuary, Who shall pay no Mortuaries. for any woman being covert baron, nor for any child, nor for any person not keeping house, nor for any wayfaring man, or other that maketh not residence in the place where they shall happen to die: But the mortuaries of such wayfaring persons shallbe answerable (in places where mortuaries have been accustomed to be paid, and in manner, form, and rate above mentioned and none otherwise) in the places where such wayfaring persons, at the time of their death had their most habitation, house, and dwelling place, and no where else. St. 21. H. 8. 6 No mortuaries, or Corpse presents, nor any sum of money for them, shallbe demanded, or had in the parts of Wales, Mortuaries in Wales, Berwick, and the Marches. nor in the Marches of the same, nor in the town of Berwick, or the Marches of the same, but only in such places where Mortuaries have been accustomed to be paid: Neither shall any Mortuaries, nor Corpse presents, nor any thing for them be demanded, or had in those places, but only after the order, and manner above specified, and none otherwise, nor for any other person than is above limited. But it is lawful to the Bishop of Bangor, Landaffe, S. David, and S. Ass, and likewise to the Archdeacon of Chester, to take such mortuaries of the priests within their Dioceses, & jurisdictions, as heretofore have been accustomed. St. 21. H. 8. 6 No person shallbe compelled in such places (where mortuaries have been accustomed to be taken of less value than is aforesaid) to pay any other mortuaries, or more for any mortuary, then hath been accustomed: Mortuaries of less value by custom. Nor any mortuary shallbe demanded taken or had in such place, of any person or persons exempt by this Act, nor contrary to this Act. 30 There be certain other extortions, or exactions in spiritual, Ecclesiastical, or Scholastical causes, which antiquity did not know, or dream of, and therefore neither made Statutes, or ordained any temporal laws against them; but the same, having great society and intermixture with Simony, and being sprung out of a spur of the root of Avarice, are so secretly put in practice, that human policy only, will be hardly able to know them, and less to repress them; for in most cases the offenders therein do wittingly enter into corrupt, and wilful perjury, and upon premeditate consideration do violate their oaths solemnly and advisedly taken, when they do first enter into their own vocations and degrees. It is a soul and odious fact, and hateful in the eyes, ears, and hearts of all good persons, that a man to whom the law hath given no profit, interest, or right, in the tithes, glebe, or other fruits of a Benefice, but only a bare and naked authority to present, collate, or admit a worthy, meet, and fit man to the same, should for a lease, annuity, money, or other reward, present, collate, or admit a man, be he worthy or unworthy, to the same: Or that a man who doth: or aught to come to a benefice with cure of souls freely, should for any money, pension, or other consideration, corruptly resign or exchange the same: Or that a man in whom the law hath reposed a special trust, to make choice of ministers, and preachers, according to their virtue, learning, and worth, should admit them for money, or other reward: Or that they who have but only the nomination, or presentation, of a fellow, scholar, or other person, to any place in a college, school, or other society, should take money or other reward for their voices or assents in such election: Or that he who hath place in such a society should take reward for the resigning, or leaving of it, as if the same places and livings were their own lawful freehold, and they authorised to make sale thereof: The which grievous and irreligious enormities, the high court of Parliament assembled Anno 31. St. 31. El. 6. El. did there endeavour and show their good meaning to reform, by an Act wherein it was agreed, That if any person or persons, bodies politic or corporat, shall, or do, for any sum of money, reward, Exaction for presenting or collating to a Benefice. gift, or profit directly, or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance, directly or indirectly, present, or collate any person to any Benefice with cure of Souls, dignity, prebend, or living Ecclesiastical: Or give or bestow the same, for, or in respect of any such corrupt cause or consideration: Then every such presentation, collation, gift, and bestowing, and every admission, institution, investure, and induction thereupon shall be utterly void, and of none effect in law. And it shall and may be lawful, to, and for the Queen, her heirs and successors, to present, collate unto, or give, or bestow every such Benefice, dignity, prebend, and living Ecclesiastical, for that one time, or turn only. And all and every person or persons, bodies politic and corporat, that from henceforth shall give or take, any such sum of money, reward, gift, or benefit, directly or indirectly: Or that shall take or make any such promise, grant, bond, covenant, or other assurance, shall forfeit the double value of one years profit of every such benefice, dignity, etc. to the Queen and I. to be recovered by A. B. I. wherein no W. E. P. And the person so corruptly taking, The penalty of the corrupt taker of a Benefice. procuring, seeking, or accepting any such Benefice, dignity, prebend, or living, shall thereupon, and from thenceforth be adjudged a disabled person in law, to have or enjoy the same Benefice, etc. Exaction for admitting to a Benefice. 31 And by the same Stat. of ann 31. El. it was further established, Stat. 31. El. 6 That if any person shall for any sum of money, reward, gift, or profit whatsoever, directly, or indirectly, (other then for usual and lawful fees) or for, or by reason of any promise, agreement, grant, covenant, bond, or other assurance, of, or for any sum of money, reward, gift, or profit whatsoever, directly or indirectly admit, institute, install, induct, invest, or place any person, in, or to any benefice with cure of souls, dignity, prebend, or other living Ecclesiastical: then every such person so offending shall forfeit the double value of one years profit of every such Benefice etc. to the Q. and I. to be recovered by A. B. I. wherein no W. E. P. And thereupon immediately from and after the investing, installation, or Induction thereof had, the same Benefice, dignity &c. shallbe eftsoons merely void. And the patron, or person to whom the advowson, gift, presentation, or collation shall by law appertain, shall and may by virtue of this Act, present, or collate unto, give, and dispose of the same Benefice, dignity, etc. in such sort to all intents, as if the party so admitted, installed, invested, inducted, or placed, had been, or were naturally dead. But no title to confer, or present by lapse, shall accrue upon any voidance mentioned in this act, Notice of Lapse. but after six months next after notice given of such voidance by the Ordinary to the Patron. St. 31. El. 6. 32 By the Statute of Ann̄ 31. El. it was moreover ordained, Exaction for resigning or exchanging of a Benefice. That if an Incumbent of any Benefice with cure of souls do, or shall corruptly resign or exchange the same: Or corruptly take, for, or in respect of the resigning, or exchanging of the same, directly or indirectly, any pension, sum of money, or benefit whatsoever; Then aswell the giver, as the taker, of any such pension, sum of money, or other benefit corruptly, shall lose double the value of the sum so given, taken, or had, to the Q. and I. to be recovered by A. P. I. wherein no W.E.P. But this Act shall not take away, Penalties by the Ecclesiastical law. or restrain any penalty prescribed by the Ecclesiastical law, for any offence in this Act mentioned, but the same shall remain in force, and be put in execution, as before etc. Stat. 31. El. 6 33 By the foresaid Statute of Anno 31. El. it was also enacted, Exaction for making of ministers, or giving licence to preach. That if any person or persons whatsoever, shall, or do receive or take any money, fee, reward, or other profit directly, or indirectly: Or shall take any promise, covenant, bond, agreement, or other assurance, to receive, or have any money, fee, reward, or any other profit directly, or indirectly, either to him, or themselves, or to any other of their or any of their friends (all ordinary and lawful fees only except) for, or to procure the ordaining, or making of any minister, or giving any Orders, or licence, or licences to preach: Then every person and persons so offending, shall for every such offence forfeit x. l, & the party so corruptly made minister, or taking Orders x. l to the Q. & I. to be recovered by A. P. I. wherein no W.E.P. And if at any time within seven. years next after such corrupt entering into the ministery, or receiving of Orders, he shall accept, or take any Benefice, living, or promotion Ecclesiastical, then immediately from, and after the induction, investing, or installation thereof, or thereinto had, the same Benefice, living, &c. shallbe eftsoons merely void. And the patron, or person, to whom the advowson, gift, presentation, or collation, shall by law appertain, shall, and may (by virtue of this Act) present, or collate unto, give, and dispose of the same benefice, living, etc. in such sort to all intents, as if the party so inducted, invested, or installed, had been, or were naturally dead: Any law, ordinance, qualification, and dispensation to the contrary notwithstanding. Stat. 31. El. 6 34 By the same sttatute of ann 31. El. for the causes before rehearsed, it was also provided, That if any person or persons, bodies politic, or corporat, which have election, presentation, or nomination of any fellow, scholar, or any other person, Exaction for a voice in electing of a fellow or scholar to have room or place in any Churches collegiat, Colleges, Schools, Hospitals, halls, or Societies, shall have, receive, or take, any money, fee, reward, or any other profit, directly or indirectly, either to him, or themselves, or to any other of their, or either of their friends, for his or their voice, or voices, assent or assents, or consent in electing, choosing, presenting, or nominating of any officer, fellow, scholar, or other person to have any room or place in any of the said Churches, Colleges, halls, Schools, Hospitals, or Societies: then and from thenceforth, the place, room, or office, which such person so offending shall then have in the said churches, colleges, &c. shallbe voided. And then as well the Queen, her heirs, and successors, & every other person & persons, or their heirs, or successors, to whom the presentation, gift, donation, election, or disposition shall of right belong, of any such of the said rooms or places of the said person offending, as is aforesaid, shall or may at their pleasure, elect, present, nominate, place, or appoint any other person or persons, in the room, office, or place of such person or persons so offending, as if the said person or persons were naturally dead. Exaction by taking money to resign a place. 35 For some reason before alleged, it was lastly ordained by the said stat. of ann 31. El. That if any fellow, officer, or scholar of any of the said churches, St. 31. El. 6. colleges, schools, halls, hospitals, or societies, or other persons having room or place in any of the same, shall at any time hereafter directly or indirely take, or receive, or by any way, devise, or means, contract, or agree to have, or receive any money, reward, or profit whatsoever, for the leaving or resigning up of the same his room, or place, for any other to be placed in the same: then every person so taking, or contracting, or agreeing to take, or have any thing for the same, shall forfeit double the sum of money, or value of the thing so received and taken, or agreed to be received or taken. And every person, by whom, or for whom, any money, gift, or reward as aforesaid shallbe given, or agreed to be paid, shallbe uncapable of that place, or room, for that time, or turn, & shall not be, nor had, nor taken to be a lawful fellow, scholar, or officer, of any the churches, colleges, halls, hospitals, schools, or societies, or to have such room 〈◊〉 place there: But they to whom it shall appertain at any time thereafter, 〈◊〉 and may elect, choose, present, and nominate any other person fit to be elected, presented, or nominated into the said room, or fellowship, as if the said person, by, or for whom any such money, gift, or reward shall be given, or agreed to be paid, were dead, or had resigned, and left the same. And to the intent that every person that is or may be subject to the said penalties, may take notice thereof, This Stat. shall be read at every election. by the said statute it was also ordained, That at every election of fellows, scholars, and officers, this Act, and the Statutes of the same places, concerning such election, shallbe publicly read: upon pain that every person in whom the default shallbe, shall forfeit xl. l to him that will sue, and to the same college, society, etc. Extortion by gathering others money. 36 If any person do levy and receive money of certain other persons, 27. Ass. p. 15 which they ought to pay in discharge of a fifteen, due by a town to the king, and he doth not pay the same money to the king, he may be indicted of extortion, and the matter being found accordingly, the offendor shall be distrained to pay the same money to the people of the said town, toward their discharge of the said fifteen. 48. Ed. 3. 8. 37 If a man be amerced in a Court Baron for a trespass done to the Lord of the Manor, and the amerciament is aff●ired in the Lord's court, Extortion for amerciament in a court baron. this is extortion in the Lord: But if the Lord do accept the amerciament, that is a sufficient satisfaction for the trespass, and a good bar in an action of trespass brought by the Lord against the offendor. 38 But though extortion and exaction be prohibited by the laws & Stat. before specified, as things offensive to the laws and justice of the Realm; No extortion to take lawful fees. yet the same law doth allow to each officer and other person, to have a reasonable consideration and satisfaction for his pains, according to his countenance, degree, and calling, and the pains and service which he shall do and employ in the furtherance or execution of justice: 34. H. 6. 38. 8. Ed. 4. 18. as the L. Chancellor, and they which writ to the great seal are not to make writs without their fees: and if a prisoner be discharged of his imprisomnent by the court, paying his fees, the Marshal of the Kings Bench, the Sheriff of the county, nor any Gaoler or keeper of prison, aught to detain him in prison, for meat, drink, or other thing which he hath bought, but for his fees only. But if a man be committed to prison for suspicion of felony, 11. H. 7. 16. and after he is acquitted thereof, and discharged by the court paying his fees; the Sheriff or Gaoler may take of him bar-fees, and this is no extortion, but justifiable: for this money is not taken contrary to the foresaid stat. of ann 23. H. 6. which prohibiteth the sheriff to take money for showing ease or favour to any person arrested. Taking of barre-fees no extortion. For this bar-fee is money which the court from one age to another, hath in discretion assigned the prisoner so discharged to pay to the Sheriff, or Gaoler for his great pains and charge, for the safe keeping of the prisoners, for attending upon them, and for conveying of them safely to the bar, and from it, to the prison. If a man be committed to prison for two several felonies, 26. Ass. p. 47. and after he is discharged by the court paying his fees, he shall pay but one fee, for the Gaolers attendance was but upon one person. And if the Sheriff or Gaoler take from a prisoner in his custody, the money in his purse, or any garment that he hath, this is no extortion, but a trespass, for the recovery whereof the prisoner may have an Action of trespass against the same Sheriff or Gaoler, and recover the value thereof in damages. No extortion for gloves given upon the allowance of pardon. And if a man indicted and arraigned of felony, 4. Ed. 4. 10. doth plead and show forth the King's pardon of the same felony, which is allowed by the court, whereupon he doth pay and give his fees of gloves to the justices, and other officers of the court, this is no extortion, 34. H. 6. 38. but an ancient fee, and lawfully due unto them. If the justices in an especial Assize do take their lawful fees, this is no extortion: for they are not bound to sit unless they have them. 34. H. 6. 42. 39 If a man that is attainted of trespass, do come into the court, Extortion in taking fees of him that doth appear gratis where he was attainted, and prayeth to make his fine to the King, and offereth pledges for his fine, if the Warden of the Fleet, or other Keeper of a prison do take any fees of him, it is extortion, seeing he came in gratis, and out of ward, and yielded himself to the court. But if there be process awarded against him for his said fine, and he be taken thereby, than he shall pay his fees to the warden or Keeper etc. and it is no extortion to take them, for that he came in by compulsion, and not willingly. St. 27. H. 8. 26. 40 After that by the Stat. of ann 27. H. 8. it was enacted, That the King's country or dominion of Wales, should be incorporatd; united, and annexed to and with the Realm of England, and that all persons borne and to be borne in the said Principality and dominion of Wales should have, enjoy, and inherit all and singular freedoms, liberties, rights, privileges, and laws within this Realm, and all other the king's dominions, as other the King's subjects borne within the same, have, enjoy, and inherit. And that the laws, ordinances and statutes of this Realm of England for ever, and none other, shall be used and executed in the said dominion of Wales, and every part thereof, in like manner, form, and order, as they be in this Realm. And that the said dominion of Wales was by the said Statute of 27. H. 8. and by the statute of ann 34. H. 8. divided into xii. shires, and a Precedent and Council established there and in the Marches of the same, with all officers, clerks, and incidents to the same. And that there should be justices of Assize and jail delivery there, which should keep Sessions in every of the said shires twice in the year, and a Marshal, and a Crier in every circuit. And that there should be original and judicial seals, for the sealing of Writs and Process in the said shires: And that there should be four Prenotaries in Wales, and also certain justices of Peace and Quorum, and a Custos Rotulorum, Bailiffs of Hundreds, Sheriffs, Escheators, Coronors, & Constables of Hundreds in every of the said xii. shires. Then to prevent and avoid extortion of the foresaid Officers in Wales, and to the intent that the said Officers might know what money to demand, and every suitor what to pay for all Process original and judicial, declarations, plead, etc. by the said Stat. of ann 34. H. 8. it was particularly expressed how much should be paid for the writing and sealing of original and judicial Writs and process, The fees expressed to prevent extortion in Wales. and what Prenotaries shall take for their fees, what every Marshal and Crier of the justices shall have, and what fees the said Sheriffs and Coroners shall take, in many, divers, and several cases. But after, in and by the said Stat. of ann 34. H. 8. it was further ordained, That in all and every Writs original or judicial, or other Process, pleas, or writings which be not expressed in the said ordinance, the fees thereof, as well for the seals as writing, shallbe rated by the said Precedent, Council, and justices, or three of them, whereof the said Precedent to be one, by their discretion from time to time, as the case shall require. And they shall have full power from time to time, to assess and appoint what fee the said Sheriffs, Escheators, and Coroners, and their ministers, Prenotaries and their clerks, and other ministers of justice in the said shire, shall have of the King's subjects for any manner writs, plaints, pleas, process, returns, or any other matter or thing, concerning or belonging to the execution of their offices and rooms, and to augment or diminish any fee or fees above declared, as shallbe thought by their discretions to be convenient and meet for the common wealth of the king's subjects of those parts of Wales. Oppression. 1 OPpression is a grievance done by one man or more to the hurt or prejudice of others, What oppression is. without any warrant of law, or colour of justice: or it is a burden or charge which one man doth impose on another, more than the law doth lay upon him, and is for the most part wrought by the superior in countenance, ability, or office, to the inferior in the same: for the oppressor sicuti Nimroth robustus venator, & tanquam Leo subversor in domo sua, is always offering hard measure to them who are to deal with him, until they be able and willing to resist him. The fraudulent deceivor yieldeth a man something for his money, or at the least giveth a fair colour so to do. The extortioner is most times an officer, and doth take pains, and is worthy of his due reward, & so is tolerable, until he wresteth more than his desert. But the oppressor grapleth for what he can get, and returneth nothing, and wresteth to reap that which he hath not sown, and to gather fruit where he hath not grafted: the mark he roveth at, is his private profit, & respect●th not how many, and how much he in that cause hurteth, so that his own purse be filled, or his will be accomplished. As, Oppression by disseisin. every disseisor who doth unlawfully expel and put another man out of his freehold, may aptly be termed an oppressor, for he doth not put in practise that injury covertly and secretly, by fraud and collusion under hand, as the deceivor & extortioner do, but by plain and open wrong, and doth stand in the face of all his beholders, and commonly justifieth that which he hath done. And therefore as the said disseisin and oppression is manifest, so hath the stat. of West. 2. appointed a speedy and manifest remedy to the disseisée to redress and reform the same, which is by an Assize of Novel diss. to the end, that as he was newly and lately disseised so he might be quickly and speedily restored. And because the law doth adjudge a man oppressed and injured, who is disseised of estovers of wood, Of what things one may be disseised. or of profit to be taken in wood, nuts, acorns, and of other fruit to be gathered: or of a corrody of delivering corn, and other victuals and necessaries to be received yearly in a place certain: or of toll, tonnage, passage, pontage, pawnage, or such like things to be taken in places certain: or of the keeping of woods, forests, parks, chaces, warreines, gates, and other bailiwikes and offices in fee: or of common of pasture, turbaries, fishing, and such like, which a man hath belonging to his freehold, or without his freehold by special deed, at the least for term of life: or when one man doth pasture another's several: or when tenant for years, or garden of a tenement doth alien the same in fee, whereby the freehold is transferred to the feoffée: St. 13. E. 1. 25. therefore in all the cases aforesaid, that said stat. of West. 2. doth give to the party so oppressed and disseised, his remedy to recover the same by the said Ass. of novel diss. in which the writ shall be De libero tenemento. If tenant by Elegit be put out of the tenement which he hath in execution: St. 13. E. 1. 25. St. 13. E. 1. or tenant by Statute merchant be put out of the land which he hath in execution: or tenant by Stat. staple be put out of the land which he hath in execution: or tenant by Recognisance in the nature of a Statute staple, his executors, St. 27. E. 3. 9 St. 23. H. 8. 9 administrators, or assigns, or any of them be disseised, or put out of the land which he or they have in execution, he or they so disseised, or put out, may have & maintain an Assize, for it is to him or them a disseisin & an oppression. St. 32. H 8. 7 If any person who hath an estate of inheritance or freehold, in any parsonage, vicarage, portion, pension, tithes, oblations, or other Ecclesiastical profit, made temporal, be deforced, kept, or put from the same, this is a disseisin and oppression, & the party so wronged may have an Assize to recover the same. And if any Escheator, St. 3. E. 1. 24 Sheriff, or other of the K. bailiffs, shall by colour of his office (without special warrant or certain authority which belongeth to his office) disseise any man of his freehold, or of any thing which belongeth to his freehold, this is an oppression, and the disseisée may at his choice either have an Assize, and recover double damages, and the defendant shall be amerced, or else the K. upon complaint shall redress the matter. If lands be granted by the King's Patent, without any title sound by inquest, St. 1. H. 4. 8. or where the King's entry is not given by the law, and if any be put out or disseised of his freehold thereby, this is an oppression: And the party put out, shall have a special Assize against the king's patentee, and recover triple damages. Oppression by approvement of common. 2 If the Lord of a Manor (wherein he hath certain freehold tenants, and certain neighbours) do approve some part of the wastes, woods, or pastures of the same Manor, not leaving to his said tenants and neighbours sufficient common of pasture unto their tenements, or not sufficient and convenient ingress and regress to the same, this is an oppression of the same tenants, and a disseisin of their common. And the said tenants and neighbours (or any of them) may by force of the Statutes of Merton, and West. 2. St. 20. H. 3. 4 St. 13. E. 1. 46. bring an Assize of Common of pasture against the Lord who doth so approve and oppress. And if it be found by the jury, that their ingress and regress were any thing hindered by the deforceors, or that they had not sufficient pasture, than they shall recover their seisin by the view of the jurors: so that by their discretion and oath they shall have sufficient pasture, ingress and regress, and the disseisors shall be amerced, and render damages, which damages (by force of the statute of Anno 3. Ed. 6. St. 3. E. 6. 3. ) shall be trebled by the judgement of the Court where such Assize and judgement shall be had. Oppression by surcharge of common. And so it is if the Lord of a Manor doth surcharge the common with so many cattle, Fitz. Admes. 11. Common 29. as that his freeholders or neighbours cannot have sufficient common for their cattle, as they had wont to have, or as they ought to have belonging to their tenements, this is an oppression and disseisin of their common, and any of them may bring an Assize of Common of pasture against the said Lord, and recover his common, and his damages. Enclosure of common by cause of vicinage, is no oppression. But if there be two Lords of two several Manors, which have two wastes adjoining parcel of their manors, Co. li. 4. 38. lying together without enclosure or separation, and yet the bounds of each manor is well known by certain méers and marks, in which wastes the tenants of the one manor and of the other have reciprocally had and used common by cause of vicinage: 13. H. 7. 14: M. 14 Eliz. Dyer 316. In this case one of those Lords may enclose against the other, & by that means utterly take away his common by cause of vicinage from him, though it hath been otherwise used time out of the remembrance of man. And this common per cause de vicinage, is rather an excuse of a Trespass when the cattle of the tenant of one Manor do stray into the wastes of the other Manor, than any certain inheritance: for the tenants of one Manor may not put their cattle into the waist of the other Manor, but they may come thither only by escape, and this enclosure is only to prevent the escape of the cattle, which is a lawful act, and no oppression: For in the case aforesaid, where the wastes of both the Manors be adjoining together, and that the one of them hath common with the other by cause of vicinage, Co. li. 7. 5. and that the one village hath an hundred acres of common, and the other but fifty acres of common: Commoners shall charge common according to the quantity thereof. in this case the inhabitants of the village which hath but fifty acres of common can put no more cattle into their said common of fifty acres, than it will maintain, without having respect to the common in the said hundred acres, for if they do, it is an oppression and wrong, niece converso: for the original cause of this common by cause of vicinage, was not for profit, but for preventing of suits in a Champion country, in respect of reciprocal escapes from one town to another. 3 It appeareth by the preamble of the statute of Marlebridge, that they who took distresses of their tenants, or neighbours, for rents supposed to be due to them, or for any trespasses done to them, and after did drive the same distresses forth of the county where they were taken, to be impownded in another county, were accounted to do it to oppress them whose cattle they so did distrain and impound, and the same was also adjudged an act done against the peace: whereupon, for the eschewing of such oppressions, by the same statute, and also by the statute of West. 1. St. 25. H. 3. 4 St. 3. E. 1. 16. it was ordained, Oppression by distresses. That no man shall cause a distress to be driven forth of the County wherein it was taken. And for the avoiding of the like oppressions, vexations, and troubles, by a statute made Anno 1. St. 1. & 2. P. & M. 12. & 2. P. & M. it was enacted, That whosoever shall drive any distress out of the Hundred, Rape, Wapentake, or Lath where it was taken (except it be to a pound overt within the same shire, being not above three miles distant from the place where it is taken) or shall impound in several places, goods distrained for any cause at one time, whereby the owner shall be constrained to sue several Replevies for the delivery of the same distresses, shall forfeit to the party grieved for every such offence five pounds, and triple damages. And whosoever doth take for keeping in pound, poundage, Pondage money. or the impownding of a whole distress, above iiij. d. or doth take so much where less hath usually been taken, shall forfeit to the party grieved five pounds, and so much as he taketh over the said iiij. pence. And because the law hath devised, that one neighbour may distrain the goods of another for his debt, duty, or damages sustained, and that the same distress shall be reasonable, according to the quantity of the said supposed debt, or damages, and that then the same distress shall be put in a pound overt sub custodia legis, until it be decided whether the same was taken upon just cause or not: and not to the end that one neighbour should by distraining unjustly oppress another, or demand of him that which is not due, or put him to further charge or trouble than the necessity of that cause, for the recovery of his own debt or damages required: therefore by the before mentioned statute of Marlebridge, it was further established, That if one neighbour take a distress of another (whereby he hath received less) without award of the King's Court, he shall make fine according to the quantity of the trespass: and nevertheless sufficient amends shallbe to them which have received loss by such distress: Distraining out of his fee. Or if one do distrain another to come to his Court which is not of his fee, or upon whom he hath no jurisdiction by reason of his Hundred or Bailiwike, or do take a distress without his fee, or the place where he hath jurisdiction or bailiwick, he shall make fine according to the quantity of his offence. Excessive distress. Or if one do take any unreasonable & excessive distresses, which is grievous, and more than the quantity of the debt or damages, this is an oppression, an he shall be amerced: 41. Ed. 3. 26 29. Ed. 3. 23. As a man avowed the distraining of 200. sheep and 16. beasts for ij. pence rend, and he was amerced therefore: for all that he took above vj. sheep, were adjudged an oppression, and so unlawful. But if a man distrain for homage, 28. Ass. p. 50 42. Ed. 3. 26. Co. li. 4. 8. Fitz. Na. Br. 178. 27. Ass. p. 51 28. Ass. p. 50 the distress cannot be too excessive, how many beasts soever he doth take, for that homage is not valuable, though for rent, fealty, and other services, it may be excessive. And in like sort, Oppression by often distress. if the Lord of a Manor, or any other, who hath rend issuing forth of certain land, do distrain the tenant of the same land divers times for rent, or services, where none is behind unpaid, this is an oppression of the same tenant who is distrained: for in this case the party who claimeth this rent, cannot distrain for rent, seeing none was due to him, but his distress is only taken to vex the tenant of the land, and so to oppress him. And therefore the said tenant may have an Assize of Sovent foits distress against the same Lord, and recover damages of him according to the loss he hath received by the same distresses, viz. for not ploughing, or for not manuring his land, Lib. in't. 82. Co. li. 4. 8. or for taking no profit thereby. But it is otherwise, if the same several distresses were taken for homage. Several distresses for one thing. And so it is, if a man do distrain for rent, or services, or for any other thing, Fit. Nat. Br. 71. and depending a suit between the parties for the same rent, service, or other thing, he who did distrain doth distrain again for the same rent, service, or thing, for the which he did distrain before, the beasts or goods of him whose he did first distrain, this is an oppression of him whose goods be twice distrained: For the redress whereof he may have a writ of Recaption A writ of Recaption. against him who so did distrain his goods twice for one cause, whereby he shall recover damages for his second distress: And also he that did take the same distress, shall make fine to the King for his oppression and wrong, though the first distress were lawfully taken, yea and though the rent or service for the which he did distrain, were behind, unpayed, or undone, seeing by the first distress (the cause being proved true and lawful, he might have had return of the goods or cattle which he did distrain until he had been satisfied of the rent, service, or thing, for the which he did distrain. But a man may distrain the cattle of him who be eating of his corn or grass, Distresses for damages for't. or doing any other hurt in his ground, 47. Ed. 3. 7 so often as he shall find them doing hurt therein, and it is no oppression or wrong so to do: for he doth not distrain twice for one cause, as in the former case, but distraineth several times for several new offences. 4 And every Trespass which the law doth interpret to be injuriously committed vi & armis, may also fitly be termed an oppression: for it is done upon the offenders own wrong, without warrant of law: St. 5. R. 2. ● As if one person do enter upon another's land, & expel him out of the possession thereof, whereas his entry is not given by the law, or doth enter with strong hand, or multitude of people, Fitz. Tresp. 13. 45. 234 20. H. 6. 22. 9 Ed. 4. 28. 9 H. 6. 64. 21. H. 6. 5. 21. Ed. 4. 18. 9 Ed. 4. 29. 10. Ed. 4. 4. 21. Ed. 4. 4. 1. H. 7. 10. 37. H. 6. 36. 21. H. 7. 1●. 11. H. 4. 64. 20. H. 6. 14. 3. H. 6. 12. 10. H. 6. 16. 43. Ed 3. 13. 4. Ed. 3. 48 47. Ed. 3. 22 43. Ed. 3. 35 1. H. 5. 1. and not in peaceable manner, this is an oppression. And so it is, Oppression by Trespasses. if one person do pull down, break, or impair another's house, or any part thereof: Or if one person do fell, cut down, or carry away the Timber, Trees, or Wood of another: Or if one person do fell, cut, tread down, or carry away the corn or grass of another: Or if one person do with his cattle depasture, feed, or eat the corn, grass, or hay of another: Or if one person do take and carry away the money, plate, jewels, household-stuff, cattle, corn, hay, or any kind of goods of another's: Or if one person do plough, till, ear, or dig the ground or soil of another: Or if one person do maim, imprison, wound, or beat another, or doth maim, wound, or beat the servant of another, whereby he looseth his service: Or if one person do hunt, chase, or hawk in the free Warren of another, or do take, kill, or destroy his game there: Or if one person do fish in the Pond, Poole, Mildam, Stew, or other several fishing of another: Or if one person do break the dove-house of another, or destroy the flight of the doves of another: Or if one person do dig the Mine of Tin, Led, Stone, Coale, Gravel, Sand, Matle, Chalk, etc. of another: Or if one person do pull up & take away the meerestones which by consent have been set between his own ground and another's: In all and every of which cases, the party grieved may pursue an Action of Trespass against the offendor, and declare that he committed any of the said offences, vi & arm●s, wherein (if the defendant be attainted) he shall pay to the plaintiff his damages sustained, and to the King a fine, for that he hath done an oppression to one of his subjects, and made an offence to the law. Fit. Nat. Br. 183. 4. Ass. p. 3. 5 Every Nuisance which one person doth to the land of another, Oppression by Nuisances. wherein the owner hath an estate for the term of life, in tail, or in fee simple, may also be accounted an oppression: for those Nuisances be put in practice by the offenders only will, and by his own open, plain, and manifest wrong, to the disheritance of another, or to the prejudice of his freehold, without any warrant of law, 18. Ed. 3. 22. 21. Ed. 3. 2 Co. li. 5. 101. Li. Int. 406. or colour of justice: As if one person do build or levy a house, a wall, a shed, a leantor, a chimney, a gutter, or other structarie, in his own ground, to the offence of another's freehold, or to the drowning or rotting of his house, or to the stopping of his light, or way thereunto, this is an oppression. 46. Ed. 3. 23. 7. Ed. 3. 56. And if one person do levy, raise, abate, or pull down a Dam, Poole, Pond, or Ditch, to the hurt of another's freehold, that is an oppression. 27. Ed. 3. 88 12. H. 4. 3. 8. Ed. 4. 5. 48. Ed. 3. 27 8. Eliz. Dyer 2 50. 14. Eliz. Dyer 319. And if one person do stop, straighten, or turn an ancient watercourse, to the hurt of another's Freehold, or in such sort as it doth drown the ground or soil of another, that is an oppression. And if one person do stop, streiten, or greatly impair another's highway, which he hath belonging to his freehold, that is an oppression. If one person do convey water to his house or ground, by a pipe of lead, timber, or vault of stone, and another person will make another pipe out of that pipe, to take away part of the same water, that is an oppression of him that made the first pipe. And if one do erect a lime-kill near unto another's dwelling house, 4. Ed. 3. 36 5. Ed. 3. 43. 4. Ass. p. 3. the smoke and heat whereof, when it is set on fire, doth annoy the inhabitant of the said house and his family, or doth scorch or dry up the fruit trees in his orchard, that is an oppression. And if one person hath the freehold of a several fishing in a river, pond, pool, moat, mill dam, or other water, Lib. in't. 406. and another person will build a dye-house adjoining, or near unto it, and then will power out, or cause to run from thence, corrupt ashes, dung, slime, filth, or other annoyances, into the said several fishing place, to the destruction of the fish there, whereby the owner doth lose the benefit of his several fishing, that is an oppression of him. And if one person will erect or settle up a Fair or Market, Fit. Nat. Br. 184. Register. 197. 199. Li. Int. 407. to the prejudice or hindrance of another's Fair or Market, that is an oppression of him who had the first Fair or Market. And if one person do lay timber, faggots, stones, lime, sand, gravel, dung, or any other thing, upon or against the house of another, which do rot, putrify, corrupt, or impair the walls, timber, or other part of the same house, or any corrupt, noisome, or stinking thing, the savour or smell whereof is offensive to the inhabitant of the same house and his family, that is an oppression of the same inhabitant: The remedies for oppression by Nuisances. In which foresaid cases the parties grieved by the said Nuisances, and oppressions, may in some cases have their remedies by Assize of Nuisance brought in the Common Pleas, in some other cases, by writs of Nuisance called Vicountiels, tried in the County before the Sheriff, in some other cases, by the writ of Quod permittat, in some other cases by action upon the case: and in most of the said cases, the said parties grieved by the said Nuisances, may take away, pull down, Co. li. 5. 101. and remove the same Nuisances, as their several estates will enable them, or their several cases do require. Oppression by Rescous. 6 Every Rescous that is unlawfully made of cattle or other goods distrained, is an oppression; for the offendor doth a wrong of his own authority, to the prejudice of another, in contempt of the justice of the Realm, without any warrant or colour of law: Seeing when the party grieved by himself, 44. Ed. 3. 20 40. Ed. 3. 32. 17. Ed. 3. 43. 18. Ed. 3. 30 2. H. 4. 15. or some other, doth distrain within his fee, for his rent or services behind, for damages which he hath sustained, for amerciaments, a rend charge, or for some other cause which he taketh to be lawful, the cattle or other goods of him who he doth conceive detaineth his due rent, or service from him, or whose cattle have eaten or spoiled his corn, or grass, or otherwise have trespassed in his ground, and doth in quiet and peaceable manner drive them towards the pound, there to remain as a pledge sub custodia legis, until the law hath decided whether there was just cause of distress or not, the owner of the same cattle, or some other in his behalf, will by force and strong hand, make Rescous of this cattle, and take them from him who distrained them, and so will not submit himself to the censure of the law, nor tarry until it be discussed by the ordinary course of justice, whether the party that distrained had lawful cause so to do or not, but will be his own judge, and take the authority of revenge to himself: which is an oppression of him whose rent or services were due, and unpaid, or whose corn or grass was eaten, etc. and who was also forcibly deprived of the ordinary remedy which the law did assign him for the recovery of his own duty. And moreover it is a contempt of the law which the same offendor doth refuse to be judged by: 7. H. 6. 1. 22. H. 6. 54. Fitz. Na. Br. 101. and therefore in this case the party grieved may pursue against the offendor a writ of Rescous for this Rescous made, and oppression done unto him, and thereby recover his damages: and also the King shall have a fine of him, for this contempt of his law, and his peace broken, Li. Int. 527. and the offendor shall be imprisoned until he hath paid the same. 7 Every Encrochment which one person doth make upon another's land, Oppression by incrochments, ground covered with water, rent, or service, is also an Oppression: for they be done and put in practice by the offenders own open, plain, & manifest wrong, without any warrant or colour of the law. As, it is an oppression for one person by ploughing, ear-ring, ditching, hedging, removing of Méerestones or land marks, 22. Ass. p. 93 to get away the ground or soil of another: and so it is for one person to draw away or alter an ancient River, Brook, or Stream of another persons out of the old and wont course: and so it is, if there be lord and tenant, and the tenant doth hold his land of his lord by fealty & five shillings of yearly rent, and of late years the lord hath had seisin of more rent of the tenant by the tenants own payment without cohertion of Distress, if in this case the lord will distrain his tenants cattle for that surplusage of rent, that is an oppression, and for the redress thereof the same tenant may pursue against his lord a Writ of Ne injust vexes, grounded upon a branch of the statute of Magna Charta, St. 9 H. 3. 10 thereby commanding the Lord, that he shall not oppress nor unjustly vex his tenant for more rent or services than he ought to pay or do: 12. E. 4. 7. 28. Ass. p. 33 5. Ed. 4. 82. Or otherwise the tenant may avoid this surplusage of rent in an Assize, Writ of Rescous, or Cessavit brought against him by his lord: but in a Replevin he cannot avoid his lord of this rent newly encroached, seeing the same lord hath had seisin thereof: and so it is, if the lord of a Manor, 40. Ed. 3. 44. 49. Ed. 3. 22. 39 E. 3. 6. which is ancient demesne, will encroach upon his tenants, and distrain them or any of them that hold their lands by Charter freely, to do other services or customs to the same lord than they ought to do, or that their ancestors were accustomed to do, this is an oppression of the same tenants: and for the redress thereof, all the tenants of the said ancient demesne Manor may have against their said lord the kings writ of Monstraverunt directed to the said lord, commanding him thereby, that he shall not require nor cause to be required of his said tenants more services or customs than they ought to do, Fitz. Na. Br. 14. or had wont to do. And if after the said writ directed, he will distrain the goods of them or any of them again, to do more services than they ought to do: Then the same tenants, or such, or so many of them as be so distrained may procure an attachment against their said lord, Fitz. Na. Br. 15. returnable in the K. Bench or common place, for this oppression and contempt, wherein every of the same tenants shall recover his damages severally, according to his loss. 8 Every excessive amerciament which one person doth take of another, Oppression by excessive amerciament. is also to be accounted an oppression of the party so amerced: for by the Statutes of Magna Charta & West. 1. St. 9 H. 3. 14 3. Ed. 1, 6. it is ordained, That no City, Borough, Town, or man shall be amerced but for a reasonable cause, and according to the quantity of his offence: and every freeman shall be amerced saving his freehold, a merchant saving his merchandise, and every other man's villain (besides the kings) saving his villain tenure: and the same amerciaments shall be assessed by the oath of honest and lawful men of the same vicenage. So that if one person do take a much greater amerciament of another than the quantity of his offence doth require in a Court Baron, or other Court which is not of record, or do take that amerciament of his own authority, without being before assessed by others upon their oaths, and so maketh himself judge in his own cause, this is an oppression of the party amerced: for the redress whereof the party grieved may procure to be directed to the lord of the said Manor, or to his Bailiff, a Writ of Moderata misericordia (which was founded upon the said stat. of Magna Charta) commanding them thereby, Fitz. Na. Br. 75. that they shall take a moderate and indifferent amerciament of the same person, according to the quantity of his offence. And if the lord or his bailiff will not then cease to distrain for the said excessive amerciament, the party so oppressed may have against the offendor an attachment, directed to the Sheriff of that County where the same Distress is taken, to attach him to appear in the king's Court, and to answer his said offence. Oppression by committing of waist. 9 The Waste and Estrepement which one person having a particular estate in another person's land, doth make or commit to the disheritance of him in the reversion or remainder of the same land, without his consent, may also be accounted an oppression of him in whom the said inheritance is: for when one person doth lease, or otherwise convey his land to another, for the term of life, lives, or years, he doth in effect but lend the same land to the said particular tenant for the term between them agreed upon, expecting to have the same again at the end of the term, in as good plight, and in such sort, as it was when he first did deliver and lend it. And therefore if the particular tenant, during the continuance of his estate, do commit any waist in the same land, he cannot deliver it again at the end of his term in such plight and sort, as at the first he did receive and borrow it: but by the waist the perpetual profit of the land is impaired, and therefore of so much in value, he in the reversion or remainder is disherited. And for the prevention thereof, by the statute of Marlebridge it was ordained, St. 52. H. 3. 24. That Farmers during their terms shall not make waist, sale, or exile of houses, woods, or men, nor of any thing belonging to the Tenements which they have in farm, without they have special grant in writing, making mention of a covenant, that they may do it. And to the intent that condign punishment might be provided and inflicted upon such as should be transgressors and oppressors in these cases of Waste, by the statute of Gloucester it was enacted, St. 6. Ed. 1. 5 That a man shall have an action of Waste in the Chancery against him which is tenant by the courtesy of England, The tenant's forf. which committeth waste. or otherwise tenant for term of life, or for term of years, or against a woman which holdeth in Dower: and he which shall be attainted of Waste, shall forfeit the thing wasted, and beside shall pay triple so much as the Waste shall be taxed: and after by the statute of Westminster the second, the same was in a sort confirmed, St. 13. E. 1. 14 and the said action of Waste was again given against the foresaid tenants by the courtesy, in dower, for term of life, or years, and also ordained to extend against Gardens. And by the same statute, the process to be used in the said action of Waste was assigned to be Summons, Attachment, and Distress, and if the party defendant do not appear at the distress, than a writ shall be awarded to the Sheriff, to inquire of the waist by the oaths of twelve men. And because divers persons did let their lands to others, sometime for term of life, or another's life, and sometime for term of years, and after the said tenants did grant their estates which they had in the same Lands and Tenements to others, to the intent that they in the reversion, viz. their lessors, their heirs or assignees should not take knowledge of their names, and yet the first lessees did continually occupy the said Lands, and took the profits to their own use, and in the said Lands and Tenements did commit waist and destruction to the disheritance of them in the reversion. For the restraint and punishment of which said offence, being both an oppression, and also a fraud and deceit, St. 11. H. 6. 5 Fit. N.B. 59 by a Statute made Anno 11. H. 6. it was ordained, That they in the reversion in such case may have and maintain a writ of Waste against the said Tenants for term of life, another's life, A termor alieneth his estate, occupieth the land, & committeth waste. or for years, and so recover against them the place wasted, and their triple damages, for the waist so by them done, as they ought to have done for the waist done by them, before the said Grant and Lease of their estate. Provided, That this Ordinance shall not hold place, but where the first Tenants, before the Grant and Lease of their estates in the manner and form abovesaid, were punishable of waist: and also, where after the said Grant and Lease the said first Tenants of the said Lands and Tenements do take the profits at the time of the waist done to their own proper use. And though the words of the said Statute do give an action of Waste in the case aforesaid but only to him in the reversion, Co. li. 5. 77. yet he in the remainder also (being in the like mischief) shall or may take the benefit thereof, and maintain an action of Waste in this case against his particular Tenant for life, or years, if either of them do commit waist to his disheritance. And whatsoever the intent of the Grauntor is, in the case aforesaid, yet if the grantee do assign his Lease, take the profits thereof, and commit Waste, he is punishable according to the said Statute, for his intent shall not be issuable, nam exitus acta probat, viz. the taking of the profits do sufficiently express his intent: and every assignee of the first Tenant, mediate or immediate, is within the compass of this Statute: for the Statute was made to suppress Fraud, Wast, and Oppression. And so was the Statute of Westminster the second, being made and provided to restrain Waste and Oppression committed by one Tenant in common to the prejudice and disheritance of another: by which it was ordained, St. 13. E. 1. 22 That whereas two or more do hold Wood, Wast committed by a tenant in common. Turbarie, Fishing, or such like things in common, wherein none knoweth his own several, and one of them doth commit Waste against the will of the other, an action of Waste may lie: and when it is come unto judgement, the defendant shall choose either to take his part in a place certain, by the assignment of the Sheriff, and by the view and oath of his neighbours sworn and tried for the same intent; or else he shall grant to take nothing from thenceforth in the same Wood, 3. E. 1. Wast 25. 50. Ed. 3. 3. Turbarie, and such other, but as his partners will take: And if he do choose to take his part in a place certain, the place wasted shall be assigned for his part, according as it was before he committed the Wast. And because the before rehearsed statute of Marlebridge doth express in general terms, in what things Wast may be committed, as in Houses, Woods, and Men: and the words of the writ of Waste in the Register be, Quare fecit vastum, venditionem, seu destructionem de terris, domibus, Boscis, & Gardinis: and the foresaid Statutes of Anno 6. Edw. 1. 13. Edw. 1. and 11. H. 6. do declare, who are forbidden to do that Wast: and seeing Waste in Lands, Houses, Woods, or &c. is a great wrong and oppression to him or them in reversion or remainder of the same, therefore I will somewhat particularly explain, which the Law doth construe and expound to be Wastes, prohibited and punishable by the foresaid Statutes, or either of them, to the intent, that both he that hath the inheritance, and also the particular Tenant, may know what is due to either of them, in respect of their several estates, and what to take, and what to leave. And to begin with the words of the Writ touching Waste in Land: Wast in land. If one person do demise or convey to another for the term of years, life, or etc. Land, 22. H. 6. 18 2. H. 7. 14 17. E. 3. 7. 9 Ed. 4. 35. Co. li. 5. 11. Fit. Nat. Br. 149. Lib. in't. 6●6 where there is included in the bowels of the earth Tin, Iron, Led, Coale, Stone, Gravel, Mortar, Sand, Chalk, or Marle, if the Mine or Pit thereof be not open, when the Lessées estate or term doth begin, the said Tenant may not open the ground, make a new Mine, and take the same Coal, Stone, Gravel, or etc. for if he do, it is Waste of the land, and he in the reversion or remainder may punish him therefore by an action of Waste: For whereas there was assured to the Tenant but Vesturam terrae, and the annual profit of the Land, he hath digged and carried away the Land itself, and impaired the inheritance thereof for ever. But if there be a Mine or Pit open in any part of the ground so demised or assured, at the time of the Lease or assurance thereof, or at the time when the estate of the Tenant did begin, than the Tenant may dig there, and take and carry away so much of the Coal, Stone, Gravel, as shall be necessarily used or employed for or towards the repair or maintenance of the House, Land, or other commodities therewith demised, and it is no Waste. But if he do give, sell, 41. E. 3. Wast 82. or otherwise dispose the same to any other person, place, or use (saving as is aforesaid) then for so much as he shall so mis-imploy, it is Waste. If one person do lease or assure his Land to another, and all the Ours or Pits therein, for years, life, Co. li. 5. 11. or etc. the Lessée may open and dig the ground for Coal, mortar, Stone, etc. and take and carry away the same, though there was not any Mine open at the time of the Lease or estate made: For by the assurance it doth appear, that the Lessor was contented that waist should be made in any part of the ground leased, by mining or digging: and in this case the Lessée may sell or otherwise dispose the same Coal, Stone, Marle, or etc. at his pleasure, 17. Ed. 3. 7 for it is as much as if the Lease or assurance had been made to the Tenant, without impeachment of any manner of Waste to be committed by Ours, Pits, or diggings. If the Tenant for years, life, or etc. do air, plough up, and convert into Tillage or Wood ground an ancient and usual mown Meadow, it is Waste: and so it is, 15. H. 3. Wast 131. 46. Ed. 3. Wast 91. if he do drown or suffer to be drowned continually a Meadow or other ground demised: for it is not lawful for a particular Tenant to convert ground to any other use than he received it, as to turn Meadow into arable, arable into Wood, 29. H. 8. Dyer 37. Wood into Pasture or Meadow, arable or Wood into Pools or Ponds, for thereby he doth wrong to the inheritance for his own profit. And likewise it is waste if the Tenant do suffer the Banks of the Sea or of a River to be usually overflown, and to decay, whereby a Meadow, a Pasture, 20. H. 6. 1. or other ground which he holdeth for life or years, that before was fruitful, shall become rushy, sedgy, or otherwise barren. But if he suffer ground set with Saffron to decay, or Land, Meadow, 10. H. 7. 2 Fit. N.B. 59 2. H. 6. 10. or Pasture to grow full of Bushes or Thorns, or to lie fresh, and not manured, it is no Waste, but evil husbandry. If the owner of a Pool or Pond stored with fish, do assure the same for years, life, or etc. and the tenant letteth forth the water, or otherwise fisheth the same, and taketh forth the fish, or part thereof, and yet leaveth it as sufficiently stored at the end of his term, 7. H. 3. Wast 141. 5. R. 2. Wast 97. Ed. 1. Wast. 128. as at the beginning thereof he found it, this is no Waste. But if he do let forth the water of the said pool, or etc. and suffer the same to lie continually dry, or do destroy by other means the fish therein, and do not repair it, and leave it as well and sufficiently stored with fish, as he received it, by the view and judgement of the country, than it is waste, and he may be punished therefore by an action of Waste. And the same Law is, if one do assure to another for term of years, or life, a Park stored with Dear, and the tenant destroyeth all the Dear, and doth not store the same again with as many before the end of his term, this is Waste. If the tenant for term of life, years, or etc. of a several Pasture or Close enclosed with a Wall, Pale, or Quickset hedge, 12. H. 8. 1. do suffer the same to decay, it is waste: for by the decay of the Wall, Pale, or Quickset hedge he hath made it no pasture, but laid it in common. As concerning waist in houses, it is waste, Wast in houses. and an oppression of him or them in reversion or remainder, if the tenant for term of years, life, or etc. do willingly pull down, 34. E 3. Wast 145. 3. H. 6. 53. 4. Ed. 3. Wast. 22. 21. H. 6. 46. 38. E. 3. 7. 40. E. 3. Wast 90. or negligently suffer to decay a dwelling house, or any Hall, Parlour, Chamber, Buttery, Kitchen, Brewhouse, Bakehouse, Day-house, Dove-house, Barn, Stable, Oxe-house, Kill-house, Mill, Cottage, or any other House, Cullis, Leantor, Edifice, or Building, being of the value of three shillings four pence, which being covered, and in good repair, was standing and being upon the ground, when the same tenant did or lawfully might have entered upon the lands demised, in respect of his Lease, 17. E. 3. 7. 42. Ed. 3. 22. 17. Ed. 2. Wast 118. or other estate to him assured thereof. And also it is waste, if any of the particular tenants aforesaid do during his estate build any new House, Floor, or Partition upon any land demised or conveyed unto him, and after he or his assignees do pull down the same again, or suffer the same to fall into ruin and decay: for that the House, Floor, or Partition being builded, was once parcel of the inheritance of the Lessor, and therefore being again pulled down, or decayed, it is to his disheritance. But if the Lessor do build a house upon the ground so demised or assured, 49. Ed. 3. 1. during the estate of the particular Tenant therein, and the Tenant do pull it down, or suffer it to decay, it is no Waste, for it was not parcel of the thing demised, neither was there any covenant in Law, that it should be repaired. And it is Waste, if any of the Houses, Edifices, or Buildings aforesaid be willingly or negligently burned, 19 Ed. 3. Wast 30. 20. Ed. 3. Wast 32. pulled, or thrown down by the Tenant thereof, or by any of his Family, or Neighbours, or by any other person whatsoever (so that it be not by the king's enemies, Thunder, Lightning, extreme Wind, or Tempest, in which cases it is no Waste punishable by the Law, 44. E. 3. 34. 43. Ed. 3. 6. 28. H. 8. Dyer 33. 33. H. 6. 1 seeing they were burned or thrown down by the power and hand of God.) But it is otherwise, if it be burned or overthrown by Rebels, or others, against whom the Tenant may have his remedy and recompense by the Law: For in that case it is punishable by action of Waste, if it be not repaired again within convenient time. If a Tenant for life, 44. E. 3. 44. 10. H. 7. 5. 29. H. 8. Dyer 36. 21. H. 6. 2 Fit. N.B. 59 40. Ass. p. 22 years, or etc. do suffer a Pale, or a wall of Stone, Brick, Timber, or Mud, which is covered with Slate, tile, Timber, or Thatch, to decay, or lie uncovered, it is Waste: But if any House, Pale, or Wall were ruinous, or uncovered, at the time when the estate of the said Tenant begun, and after did decay and fall down, than the tenant is not chargeable therefore in an Action of Waste, for he is bound to keep them in none other repair than he found them. If the tenant for years, or life, or etc. do take away a partition, or a fit in a house, 10. H. 7. 5. 42. E. 3, 6. whereby he doth make two chambers, or other two rooms, or more, but one, it is waste: for the tenant must maintain the house, and leave it in such sort as it was demised unto him, and not transpose or alter any part thereof otherwise then he received it. And in like sort it is Waste, if the said tenant do take away a Furnace, a Bench, a Table fixed in the ground, a Door, 21. H. 6. 26. or a Window from a house, which were there at the time when his estate began: for they be made parcel of the inheritance of the house, and were demised with it, and cannot be severed from it, but by him who hath the inheritance thereof. And yet if the same were set there by the termor, than he may take them away again at any time during his term, 20. H. 7. 13. but not after his term expired. And it is Waste, if the Tenant do take away the glass of the windows of a house: Co. li. 4. 63. for whether the lessor or the lessée did set up the same glass, and whether it be set up with nails, lime, or otherwise, the termor ought not to take it away, for without the glass it is not a perfect house. The same Law is of Wainscot, whether it be affixed to the house by the lessor, or by the lessée, or whether it be fastened by great nails or small nails, or by screws or irons put through the posts or walls, or by any other means, yet if it be taken away, it is Waste, and the Tenant of the house shall be punished for it by action of Waste: for it is made parcel of the house, as ceiling and plastering of a house is: For the said Furnace, Bench, Table, Door, Glass, 20. H. 7. 13. 21. H. 7. 26. and Wainscot are made parcel of the inheritance of the house, as the Walls, Beams, and Transomes be, and they shall descend to the heir of the house, and not accrue to the executors: Neither shall they be forfeited by Vtlarie, nor attached in an Assize, as Chattels may. But if in any of the cases aforesaid the Tenant do repair the house or thing wasted, 20. E 3. Wast 32. 22. H. 6. 58. 28. H. 6. 2. 38. Ass p. 1 42. Ed. 3. 22. and make it so long, so broad, so high, and in such and so good sort, as it was when his estate did begin, before any action of Waste shall be brought against him therefore, than no action of Waste is maintenable against him for that cause. Notwithstanding, if any house, wall covered, or &c. were ruinous at the time of the beginning of the Tenant's estate, 22 H. 6. 18 21. Ed. 4. 39 and after the Tenant do pull it down, and build it again, though it be not so large as it was before, yet is it no Waste, neither is the Tenant punishable therefore by an action of Waste, for that he had not been punishable therefore, if he had suffered it wholly to decay, and not have builded again any part thereof. If Wast be committed in several principal parts of a house, 4. Ed. 3. 32. 8. Ed 2. Wast 112. 12 Ed. 3. Wast 108. 127. he in the reversion or remainder thereof may by an action of Waste recover the whole house for this dispersed Waste. As in like case, if Timber Trees of Oak, Ash, or Elm be felled in several parts of a Wood or Close, he in the reversion or remainder may by an action of Waste recover against the Tenant the whole Wood, or Close, for this dispersed Waste. To proceed according to the words of the Writ, with Wast in Woods: Wast in woods. If the Lessée for years, Lessée for life, Tenant in Dower, Plo. Com. 470. 3. E. 6. Dyer 65. 7. H. 6. 40 21. H. 6. 46 14. H. 4. 12. or etc. do sell or fell Oaks, Ashes, or Elms, being of twenty years growth, and above the value of three shillings four pence, this is Waste, and punishable by an Action of Waste: For those Trees, of that age, will endure long, be meet for Building, and be parcel of the inheritance of him in the reversion or remainder, 27. H. 6. Wast. 8. 29. H. 8. Dyer 36. Co. li. 4. 64 and notwithstanding the said lease, or any other particular estate for life assured, the same trees be the leassors, and not the leassees, though the leassor cannot fallen them, or grant, or sell them to any other without consent of the tenant, for that the said tenant hath the lop and mast of them, and shade for his cattle. And likewise, if the boughs or branches of any of the same trees, being of the said age of twenty years be cut down by the tenant, the same is also waste, for they in like sort may serve for building. But if a house with certain ground be assured to a tenant for term of years, life, or etc. whereupon Oak, 7. H. 6. 40. 41. Ed. 3. Wast. 82. Ash, or Elm above twenty years of age be growing, if the same house do fall in decay during the said term, the said tenant of his own authority, without the assignment of the Leassor, may fallen sufficient of the said Oak, ash, or Elm, to repair the same house: for the Law hath ordained, that one commodity or parcel of the farm demised shall help to maintain the other. And so the tenant if he will may fallen timber to repair the house, though the same were in decay at the time of his entry: Notwithstanding, 12. H. 8. 1. 7. H. 6. 40. 29. H. 8. Dyer 36. 49. E. 3. 1. 42. Ed. 3. 22. 11. H. 4. 31. 9 H. 4. Wast. 59 9 H. 6. 66. if he be so disposed, he may permit the same house which he so found in decay, to be utterly ruinated and fall down; for he need not keep the house in other repair than he received it. But if the tenant do give or sell any timber, or fell more for any of the uses aforesaid, than is necessary and sufficient, or do fell any timber to build a new house, where there was none upon the ground before, than he may be punished therefore by an Action of waist. And the same Law is of a Copieholder, who can fallen no timber but to repair his houses which he holdeth by copy of Court Roll. The felling of Maples, Sallowes, Willows, Hornebeams, Crabtrees, 46. E. 3. 17. Hasils', thorns, or such like is no waist, for that they will not continue long, nor serve for building: And therefore they are accounted seasonable wood, and are lawfully to be felled by the termor, and to be spent upon the same ground for house-bot, 12. H. 8. 1. plough-bot, hedge-bot, fold-bote, or fire-bote, which the Law doth allow to the termor for years or life. And the tenant may fallen Oaks, Ashes, or Elms for any of the purposes aforesaid, 21. H. 6. 46. if there be no underwood growing upon the same ground to be employed to those uses. By the custom of some country, where wood is plentiful, Oakes, Ashes, and Elms, under twenty years groweth be called underwood, 11. H. 6. 1. Lib. Intr. 617. or seasonable wood, and may be felled by the termor for any of the uses aforesaid, and so may wrangles above twenty years' growth, which are never like to prove timber, or meet for building: but in some other countries where wood is scant, it is otherwise. Felling of seasonable wood, 40. E. 3. 25. Fitz. N.B. 59 which is used to be cut every seven, ten, fifteen, or twenty years, is no waist: Neither is it waste for the tenant to fell and take dotards, or to take windfalles wherein there is no timber; for they be the tenants to use and spend as is aforesaid: 7. H 6. 40. Co li. 4. 64. Fit. N.B. 59 29. Ed. 3. 33. But windfalles wherein there is any timber be the Leassors. And so is the timber of a house, which doth decay and fall down during the term, the Leassors, unless the tenant will re-edify the same house, and employ the said timber in the building thereof again. Though the felling of Willows, or other such like seasonable wood, be of itself no waist, 40. E. 3. 15. 12. H. 8. 1. 10. H. 7. 5. yet if Willows or any of the trees aforesaid do grow within the view or scite of a Manor house to defend the house from tempests and storms, or near unto the bank of a River, to defend the Bank, than the felling of them is waste: and the tenant of the land is punishable for the same by an action of Waste. If a tenant for years, life, 20. Ed. 3. Wast. 32. 9 H. 6. 66. 11. H. 6. 1. 22. H. 6. 12. 4. H. 3. Wast. 140. or etc. do fell Oaks, Ashes, or Elms, and after he hath felled them, he doth suffer cattle to come into the same ground, which do crop and spoil the sprouts or new springs growing out of the roots of the same trees, than this is a new, and another Waste, and punishable by the same Action of Waste that the Trees be, or by another, in which Action he in the Reversion or Remainder shall recover triple damages: first for the Trees felled, and also triple damages for the springs spoiled, though he can but once recover the place wasted. If the Termor do fell green wood to burn, 20. E. 3. Wast. 32. 7. H. 6. 40. 22. H. 6. 24. where he hath dead wood sufficient, it is Waste. But the felling of dead wood which will bear no leaves in Summer is no Waste; neither is the pulling down of a hedge Wast, or of a Pale or Wall that is uncovered Waste. And the foresaid Writ of Waste proceedeth further to punish waist in Gardens: Wast in gardens. Therefore if the Termor do fell and destroy Appletrees or Pearetrees growing, dispersed in several places of the ground demised unto him, it is no Waste; for he may fallen them, and take them to burn as seasonable wood: 10. H. 7. 5. 21. H. 6. 46. But if he fell a whole Garden or Orchard of Appletrees or Pearetrees, or any great number therein, it is waste; for the words of the Writ of Waste do express so much, which be, Non liceat alicui vastum, vendicionem, seu destructionem facere in terris, domibus, Boscis, seu Gardinis. And if any Appletrees, or Pearetrees be thrown down by the wind in an Orchard or Garden, 44. E. 3. 44. and they do lean upon some of their boughs, and the spurs or roots of them continuing fast in the ground, do so cherish the trees that they do bear fruit, it is waste to fell and carry them away. And to make an end of this Branch with the words of the foresaid Statute of Marlebridge, touching exile of men: If the tenant for years, life, or etc. of a Manor do so vex the villeins regardant of the same Manor by Distresses, Wast in men. Fines, Amerciaments, 29. H. 8. Dyer 37. Fit. N.B. 55 Fitz. Wast. 2. 113. 118. 130. 131. or otherwise, that the same villeins do departed from their Tenements, this is to the disheritance of him in the Reversion or Remainder, and therefore punishable by an Action of Waste. But if the Termor of a Manor during his estate do enfraunchise a villeine regardant to a Manor, this is no Wast punishable by the Law; 2. H 6. 11. for after the particular estate ended, he in the Reversion or Remainder may seize the same villeine again cum tota sequela sua. If the tenant for years, life, or etc. of a Manor or other land, wherein there be cottages, or small Tenements, do demise the same Cottages, or etc. to several Tenants, and they do die of the Plague, and the same Leassée can get none other tenants to inhabit the same Cottages or etc. whereby they do decay, and fall down, 44. E. 3. 21. Fitz. Wast. 104. 105. the Leassée is not punishable therefore by an Action of Waste; for that the waist which ensued by the death of those Cotiées or inferior tenants came by the visitation and hand of God, and not by any default of the Termor, and therefore the said Termor doing his endeavour to reform the defect, and to provide other tenants, and being not able to perform it, could not redress the same. 10 When one person doth bargain, covenant, or conclude with another for any payment, matter, cause, or thing to be performed, & is once fully satisfied thereof by money, wares, or other means, according to the true intent of the same agreement: if the same party do after sue or attempt by course of Law to obtain a new, or other satisfaction for the same contract; this a plain and manifest wrong and oppression, for the said party doth in a sort endeavour to be twice satisfied for one debt or duty. And likewise, it is an oppression and wrong, if one person do endeavour to lay a burden or charge upon others, which the Law of the Realm will not impose upon them, or which himself alone, or himself with others ought to sustain: or when one person shall imprison or restrain another of his liberty, who by law ought to be free. As if one person be bound to another by Statute merchant, or Statute Staple for the payment of a sum of money, whereof there is a defeasaunce that if the Conusor do pay to the Conusée a less sum of money at a day prefixed, 46. Ed. 3. 4. 47. Ed. 3. 26. 20. E 3. Fi. N.B. 105 or divers sums at several days, or do perform certain covenants or agreements in the said defeasaunce, or in certain Indentures made between them specified, and the conusor doth pay the said sum or several sums of money, or doth perform all the covenants in the said Indenture specified, according to the purport of the said defeasaunce: and that notwithstanding the Conusée doth sue execution of the said Statute against the Conusor, this is a manifest wrong and oppression pretended to the Conusor: Wherefore the Conusor for his relief may have an Audita querela directed out of the Chancery to the justices of the King's Bench, Oppressions redressed by an Audita querela. or Common Place, comprehending the whole matter, and charging them to call before them the parties, Plaintiff and Defendant, and to do them justice, according to the Law and Custom of the Realm, which is either to grant a Supersedeas to stay the Execution, or to set the body of the Conusor at liberty, if he be taken and imprisoned therefore, and to discharge his lands and goods of execution, if the suggestion of the plaintiff in the said writ be proved to be true. And if the Conusée in the case aforesaid do take away the defeasaunce or Indenture from the Conusor, 47. Ed. 3. 26 Fi. N.B. 103 and after extend the same Statute against him, this is likewise an oppression, and to be redressed by an Audita querela. And in like sort if the Conusée after the said Statute acknowledged, do make a Release or Acquittance of the same to the Conusor, and then do sue execution of the said Statute against the same Conusor, 47. E. 3. 3. 45. E. 3. 17. 3. H. 4. 12. 31. E. 3. or any feoffée of any part of his land, this is a great injury and oppression, and therefore in this case the said Conusor or his feoffée is to be relieved by an Audita querela. If a statute be made & acknowledged by one person to another, and then committed in ovell main to a stranger to be delivered to the Conusée upon certain conditions performed, 12. H. 4. 13. 43. E. 3. 17. and after the same stranger do deliver the said Statute to the Conusée before the conditions performed, whereupon he doth sue execution thereof against the Conusor, this is a great wrong and oppression of the Conusor, and therefore he may have an Audita querela upon this matter in fact, stay the the exeeution, and thereby redress this injury. If one person be bound to another by Statute or Recognisance for the payment of a sum of money, 45. E. 3. 17. 47. E. 3. 3. 9 H. 4. 5. 13. H. 7. 22. 16. El. Dyer 332. and after the Conusor doth make several feoffements of several parcels of his land to divers persons, and then the Statute or Recognisance is forfeited, and the Conusée doth sue execution thereof against one of those feoffees only, this is a wrong and oppression of him, for that all the land of the conusor which he had at the time of the said stat. or recognizance acknowledged, or at any time after, aught to be charged and extended for the payment of this debt, to the intent the money might be the sooner paid, and the execution more speedily discharged: And therefore the same feoffée, whose land is so extended may have an Audita querela, or a Scire facias, as the case requireth, to defeat the execution against him, Co. li. 3. 14. 23. Ed. 3. Execution 127. (and thereby he shallbe restored to all the mean profits) and to compel the conusée to sue execution of all the land which was the conusors at the time of the said Statute or Recognisance acknowledged, or at any time after; and so the land of every terre-tenant shall be equally charged, and each person contributory to the same extent, in respect of his land. If the conusor after a Statute or Recognisance acknowledged do make many feoffements of several parcels of his land to divers persons, and then all, or any of those feoffees lands be extended by force of the same Statute etc. the party or parties grieved by the same extent, 9 H. 4. 5. may procure an Audita querela to cause the lands of the conusor to be likewise extended: for he or they be wronged and oppressed by the said conusors former Act and means. But on the other side, if the land remaining in the hands of the conusor be extended by the conusée, by force of the said Statute or Recognisance, the conusor cannot maintain an Audita querela against his seoffées, or any of them, 23. Ed. 3. Fitz. Execution. 127. 45. Ed. 3. 22. to cause their lands to be extended: for he is not vexed or oppressed by the same extent by any of their means, nor for any of their debts, but for his own debt, though in the case before rehearsed they be troubled and oppressed for his debt: for when any person doth become bound by Statute or Recognisance to another, and after alieneth his land, or any part thereof to a stranger, the body of the conusor remaineth debtor to the conusee in respect of his acknowledgement and confession of the same, made of record before a competent judge or officer thereunto lawfully assigned, and the debt is his, and the burden thereof is his, and the land is only chargeable in respect that it was in his hands at the time of the Statute or Recognisance acknowledged, or after, and so the conusors person, and the land in his hands is only chargeable in that case. As in like case, if a man do become bound by Statute or Recognisance to another, and after the conusée doth purchase parcel of the land of the conusor, 11. H. 7. 4. 13. H. 7. 22: 45. Ed. 3. 22 2. El. Dyer 193. Plo. Com. 72. and then the Statute is forfeited, the conusée may extend the Statute, take and imprison the body of the conusor, and have the residue of his land delivered to him in execution, and the conusor shall have no remedy by Audita querela against the conusée, for that the conusor is not wronged or oppressed by this extent, seeing he himself is the only debtor of the conusée, and his body, lands, and goods, are liable to the payment of this debt, and not the lands in the hands of the conusee. And so it is if a man be bound by Statute or Recognisance to another, and after the conusée do purchase parcel of the land of the conusor, and a stranger purchaseth another parcel of land of him, and then the Statute is forfeited, and the conusée doth sue execution of the land of that stranger the other purchaser: that is a wrong and oppression, and therefore the said stranger may sue an Audita querela against the said conusée, 11. H. 7. 4. 13. H. 7. 22. Fitz. N.B. 105. and thereby discharge his land of execution: for that the said conusée hath discharged this land by his own Act, viz. by purchasing of parcel of the land charged: for by the Statute or Recognisance acknowledged, the whole land was charged, and by purchasing of parcel by the conusée, he hath discharged the whole, saving that which remaineth in the hands of the Conusor. If an Infant within the age of one and twenty years be bound by Statute or Recognisance, and the Conusor will extend the same, the Infant may pursue an Audita querela to avoid the same, either during his minority, if by inspection the Court shall adjudge him within age, 6. Ed. 3. 39 23. Ed. 3. Au. qu. 26. Fi. N.B. 104 or after he shall accomplish his full age: for it was a wrong and oppression practised by the Conusée to abuse the tender age of the Infant, and to urge a Statute of him before the Law did enable him to acknowledge it. And the like Law is, if one person will acknowledge to another a Statute by Dures of imprisonment, and then the Conusée do sue execution of the same, the Conusor may prosecute an Audita querela and avoid the Statute: for in this case the Conusée hath done to the Conusor a double wrong and oppression: viz. first, to imprison him, and thereby to exact act a Statute of him, and then contrary to the warrant of Law to extend the same against him. And as in the cases aforesaid, so likewise in all other cases where any person hath just and lawful cause to seek and have relief by an Audita querela, Fi. N.B. 104 20. Ed. 3. Au. qu. 27. in the same cases either he is, or is offered to be oppressed and wronged: And in all the same cases the oppressor endeavoureth to make the Law his colour and instrument to abuse him. 11 Forestallers, Engrossers, and Regrators deserve to be reckoned amongst the number of Oppressors of the common good, and public wealth of the Realm, for they do endeavour to enrich themselves by the impoverishment of others, and respect not how many do lose, so they may gain. They have been exclaimed upon, and condemned in Parliament from one generation to another, as appeareth by the Statutes of Anno 51. H. 3. Anno 34. Ed. 1. Anno 25. Ed. 3. Anno 27. Ed. 3. Anno 28. Ed. 3. Anno 31. Ed. 3. Anno 42. Ed. 3. Anno 2. R. 2. Anno 6. R. 2. Anno 14. R. 2. Anno 25. H. 8. Anno 5. Ed. 6. & Anno 5. El. but amongst the others specially forestallers, St. 34. Ed. 1. for by the foresaid Statute of Anno 34. Ed. 1. it was ordained, That no forestaller shall be suffered to dwell in any town: for he is a manifest oppressor of the poor, and a decayer of the rich, a public enemy of the country, a Canker, a Moth, and a gnawing worm that daily wasteth the common wealth: And the act and name of a Forestaller was so odious in that time, that it was moved in Parliament to have had it established by Law, That a Forestaller should be baited out of the town where he dwelled by dogs, and whipped forth with whips. But because in time it grew in question who was to be accounted a Forestaller, Oppression by forestallers engrossers, regrators. who an Engrosser, and who a Regrator, and what punishment former laws had inflicted upon them; therefore to the intent that they and their offences might more certainly be laid open to the knowledge of the whole Realm, and condign punishment provided for them, St. 5 and 6. Ed. 6. 14. by a Statute made Anno 5. & 6. E. 6. it was established, Who is a forestaller. That whatsoever person or persons shall buy or cause to be bought any merchandise, victual, or other thing coming by land, or water towards any fair, or market, to be sold in the same, or coming toward any city, port, haven, creek, or road of this realm, or Wales, from any part beyond the sea to be sold: or make any bargain, contract, or promise for the having or buying of the same, or any part thereof so coming as aforesaid, before the same merchandise, victuals, or other things shall be in the market, fair, city, port, Haven, Créeke, or Road, ready to be sold: Or shall make any motion by word, letter, message, or otherwise, to any person or persons for the enhancing of the price, or dear selling of any of the things above mentioned: Or else dissuade, move, or stir any person coming to the Market or Fair, to forbear to bring any of the things above mentioned to any Fair or market, city, port, etc. to be sold as aforesaid, shallbe adjudged a forestaller. But by the statute of ann 13. El. it is ordained, That the said Statute of ann 5. & 6. Ed. 6. St. 13. El. 25. shall not extend to any wines, oils, sugars, spices, currants, or other foreign victuals, brought from beyond the sea (fish and salt only except.) Whatsoever person or persons shall by any means regrate, obtain, St. 5. and 6. Ed. 6. 14. or get into his or their hands, Who is a regrator. or possession, in any fair or market, any corn, wine, fish, butter, cheese, candles, tallow, sheep, lambs, calves, swine, pigs, geese, capons, hens, chickens, pigeons, coneys, or other dead victual whatsoever, that shallbe brought to any fair or market within this realm, or Wales, to be sold, and do sell the same again in any fair or market holden or kept in the same place, or in any other fair or market within iiij. miles thereof, shallbe reputed and taken for a regrator, or regrators. Whatsoever person or persons that shall engross, St. 5. and 6. Ed. 6. 14. or get into his or their hands by buying, Who is an engrosser. contracting, or promise taking, (other than by demise, grant, or lease of land or tithe) any corn growing in the fields, or any other corn or grain, butter, cheese, fish, or other dead victuals whatsoever, within the realm of England, to the intent to sell the same again, shallbe reputed and taken an unlawful engrosser or engrossers. If any person or persons shall offend in any of the things before recited, St. 5. and 6. Ed. 6. 14. and being thereof duly convicted or attainted by the laws of this realm, The punishment of forestallers, regrators, and engrossers. or after the form hereafter mentioned, he or they shall for his or their first offence, have or suffer imprisonment by the space of two months without bail or mainprize, and shall also lose and forfeit the value of the goods, cattles, and victual, so by him or them bought or had. And if any person lawfully convicted or attainted, of or for any the offences abovesaid, be thereof eftsoons lawfully convicted or attainted, than every person or persons so offending, shall have & suffer for his said second offence, imprisonment by the space of one half year, without bail or mainprize, and shall lose the double value of all the goods, cattles, and victual, so by him bought or had as is aforesaid. And if any person being lawfully twice convicted or attainted, of or for any of the said offences, shall eftsoons offend the third time, and be thereof lawfully convicted or attainted, than every such person for the third offence, shallbe set on the pillory in the city, town, or place where he shall then dwell, and inhabit, and lose and forfeit all the goods and cattle, that he or they have to their own use, and also be committed to prison, there to remain during the king's pleasure. Provided always, that the buying of any such barley, big, or oats, St. 5. and 6. Ed. 6. 14. as any person or persons (not forestall) shall convert into malt, Cases wherein regrating or engrossing be tolerable. or oatmeal, in his or their own house or houses, or shall so be converted indeed: or the buying of any such thing, by any such Fishmonger, Butcher, or Poulter, as concern his or their own faculty, craft, or mystery (otherwise than by forestall) which shall sell the same again upon reasonable prices by retail: or the taking of any cattle, corn, grain, butter, cheese, or any other thing above mentioned, reserved (without fraud or covin) upon any lease for term of life or lives, year, or years, heretofore made, or hereafter to be made: or the buying of any wine or other dead victual above mentioned, being apt and meet for man's sustenance by any Inholder or other victualler, to sell the same by retail within his house, or to any of his neighbours for their sustenance, for reasonable prices: or the buying of any dried or salted fish, herring, or sprats (not forestalled) and sold for reasonable prices: or the buying of any corn, fish, butter, or cheese, by any such Badger, lader, kidder, or carrier as shall be assigned, and allowed to that office, or doing by three justices of Peace of the County where the said badger, lader, kidder, or carrier shall dwell, which shall sell and deliver in open fair or market, or to any other victualler, or to any other person or persons for the provision of his or their house or houses, all such corn, grain, butter, and cheese, as any such person shall buy or cause to be bought (and that within one month next after he shall so buy any such corn, grain, butter or cheese) so that the same shall be bought without forestall: or else that any such common provision made, or hereafter to be made without fraud or covin, by any person or persons, of any of the things abovesaid, for any city, borough or town corporat, or for the provision or victualling of any ship, castle, or fort within the king's dominions without forestall, which shall be employed only to that use and purpose: or the buying and provision of any of the victuals above mentioned, necessary for the furniture and provision of the inhabitants, or of the town of Berwick, Holy Island, or the Marches of England against Scotland, which without fraud or covin shall be transported and conveyed, as soon as wind and weather may serve to such of the places aforesaid, for the which the same shall be so provided, shall not be in any wise deemed, adjudged or taken any offence contrary to this Act. If any person or persons having sufficient corn and grain for the provision of his or their own house or houses, St. 5. & 6. Ed. 6. 14. and sowing of their grounds for one year, do buy any corn in any fair or market, Buying of corn for the change of seed. for the change of his or their seed, and do not bring to the same fair or market the same day so much corn as he shall fortune to buy for his seed, and sell the same if he can, as the price of corn than goeth in the said market or fair: then every such person or persons so buying corn for seed, shall forfeit and lose the double value of the corn so bought. If any person or persons shall buy any manner of oxen, ronts, steers, kine, heifers, St. 5. & 6. Ed. 6. 14. calves, sheep, lambs, goats, or kids living, Buying and selling of cattle alive. and sell the same again alive, unless he or they do keep and feed the same by the space of five weeks, in his or their own houses, ground, farm ground, or else in such ground or grounds where he or they have the herbage or common of pasture, by grant or prescription, than every person and persons so buying and selling again shall lose the double value of the cattle, or things so bought and sold again. The moiety of all which forfeitures afore rehearsed shall be to the King, and the other moiety to him or them that will sue in any of the King's Courts of Record by B.P.A. or I. etc. in the which no W.E.P. etc. The justices of peace in every County within this Realm or Wales, at their quarter Sessions, St. 5. & 6. Ed. 6. 14. shall have full power and authority by virtue of this Act, to inquire, hear, and determine all and every the defaults and offences, The authority of justices of peace. committed or done contrary to this Act within the County where any such Sessions shall be kept, by Inquisition, presentment, bill, or information before them exhibited, by examination of two lawful witnesses, or by any of the same ways or means, by the discretion of the said justices, and to make process thereupon, as though they were indicted before them by Inquisition, or by verdict of twelve men, or more, and upon the conviction of the offendor, by information or suit of any other than the King, to make extracts of the one moiety of the forfeitures to be levied to the King's use, as they use to do of other fines, issues, and amerciaments grown in the Sessions of peace, and to award execution of the other moiety for the complainant or informer against the offendor by Fieri facias, or Capias, as the King's justices at Westminster may do, and use to do. And if any such conviction or attainder, shall hereafter happen to be at the King's suit only, than the whole forfeitures to be extracted, and levied to the Kings use only. Whatsoever person shall at any time hereafter be punished by virtue of this Act, But once punished for one offence. for any thing mentioned in this Act, than the same person shall not otherwise be vexed, troubled, sued, or put to any pain or punishment for that one thing, wherefore he or they shall have been so punished. Provided always, St. 5. & 6. E. 6. 14. that it shallbe lawful to every person or persons which shallbe assigned and allowed by three justices of the peace of the county where he shall dwell, Transporting allowed by justices of peace. thereunto, to buy (otherwise than by forestall) corn, grain, or cattle, to be transported or carried by water from any port, or place within the said Realm, or Wales, unto any other port, or place within the said Realm, or Dominions, if he or they shall without fraud or covin, ship or embark the same within forty days next after he or they shall have bought the same, or taken covenant, or promise for the buying thereof, and with such expedition and diligence as wind and weather shall serve to carry and transport the same to such port or place, as his or their cockets shall declare, and there do disbarke, unlade, and sell the same, and do bring a true certificate thereof, from one justice of peace of the County, or mayor, or bailiff of the town corporat where the same shall be unladen, and also of the Customer of the port where such unlading shall be, of the place, and day, where the said corn or cattle shall be disbarked, unladen, and sold to be directed unto the Customer and controller of the port where the same was embarked. At all times when wheat shall be commonly at the price of six shillings eight pence the quarter, When corn may be engrossed. or under, St. 5. & 6. E. 6. 14. malt and barley at three shillings four pence the quarter, or under, oats, or oats maulted, at the price of two shillings the quarter, pease or beans at the price of four shillings the quarter, or under, and rye or mescelin at the price of five shillings the quarter, or under, (all which quarters shall be intended to be of London measure) than it shall be lawful to every person and persons (not forestall) to buy, engross, and keep in his or their grainers, or houses such corn of the kinds aforesaid, as without fraud or covin shall be bought, at, or under the prices before expressed, any thing in this Act to the contrary notwithstanding. Provided always, that this Act, Within what time the suit shallbe commenced. or any thing therein contained, extend not to charge any person or persons for any the offences above mentioned, unless he or they be sued for the same within two years next after such offence done or committed. 5. & 6. Ed. 6. 14. Provided always, that it shall be lawful to every of the king's subjects, now dwelling & inhabiting, Buying and selling of fish near the sea. or that hereafter shall dwell and inhabit within one mile of the main Sea to buy all manner of fish fresh and salted (not forestall the same) & to sell the same again at reasonable prices, this Act, or any thing therein contained to the contrary in any wise notwithstanding. Provided also, Drovers licensed may buy and sell cattle. that it shall be lawful to all and every person and persons known to be a common Drover or Drovers being licensed, or authorized, and allowed in writing by three justices of peace, whereof one to be of the Quorum of the County or Counties where the same Drover or Drovers shall be most abiding and dwelling, to buy cattle in such Shires and Counties where Drovers have been wont in times passed accustomably to buy cattle, at their free liberties and pleasures, and to sell the same as is aforesaid at reasonable prices, in common fairs and markets distant from the place or places, where he or they shall buy the same, forty miles at the least, so that the same cattle be not bought by the way of forestall. Provided always, that such licence of the justices of the Peace shall not endure above one year, The continuance of a licence. unless the same be yearly renewed by so many justices as is aforesaid. St. 5. El. 12. 12 Because since the making of the foresaid Statute of Ann 5. & 6. Ed. 6. divers persons by their own suit, were licensed to become drovers of cattle, badgers, laders, kidders, carriers, buyers, or transporters of corn, grain, butter and cheese, thereby to live easily, and to leave their honest labour in husbandry, or manual occupations, and also to enhance the prices of corn, grain, and other victuals; Oppression by badgers, kidders, laders, carriers. by which means they oppressed the commonwealth, only to procure unto themselves both wealth, and ease: for the redress whereof by a Statute made Anno 5. Eliz. it was enacted, That if any licence shall be made to any badger, lader, kidder, or carrier of corn, drover of cattle, buyer or transporter of corn and grain, butter or cheese, otherwise than in the general and open Quarter Sessions of the peace holden in the shire where the party admitted doth, Observations necessary in all licences and by the space of three years before the Teste of his Licence hath dwelled: Or other than to such person as is or hath been married, is a householder, no household servant or retainer, & thirty years of age at the least: Or to have continuance for more than one year: or which beareth not date the day and place where the Sessions be holden: Or is not signed and sealed with the hands and seals of three justices of peace being present at the same Sessions at the least, whereof one to be of the Quorum, the same Licence shall be void: And the party which taketh the same, shall forfeit five pounds. And no person shall upon the pain of the forfeiture of five pounds by the authority of such Licence buy any corn out of open fair or market, to sell the same again, except he be thereunto specially licensed by express words in his licence. The moiety of which forfeitures shall be to the Q. her heirs and successors, and the other moiety to him or them that will sue for the same in any of the Q. Courts of Record by B.P.A. or I. wherein no W.E.P. etc. But this Act shall not extend to prejudice the liberties of any city, or town corporat, but every of them, may lawfully assign and licence Purveyors for the provision of the same city, or town, as they might have done before. Neither shall this Act be prejudicial to the Inhabitants within the Counties of Westmoreland, Comberland, Lancaster, Chester, York, or any of them, but they may do as they have used to do: And the justices of peace in every County within this Realm, or Wales, shall have authority to inquire, hear, and determine all offences committed contrary to this statute by inquisition, presentment, bill, or information before them exhibited, and by examination of two lawful witnesses, and to make process thereupon as though they were indicted by inquisition or verdict etc. Oppression of Printers and Stationers. 13 Though by the Statute of Anno 1. R. 3. St. 1. Ri. 3. 9 licence was given to aliens and strangers to bring books into this Realm, and to sell and retail them at their liberties, for that there were then few Printers, or skilful binder's of books within this Realm: But seeing since there have been and are many expert and cunning Printers, and skilful binder's of books within this Realm, who have wholly addicted themselves to the said trades, and made it their whole or chief living: and therefore to bring into this Realm any printed books bound; or for any stranger to bring books into this Realm, to be by them sold by retail were a great oppression and prejudice to the Stationers, and also the same books would be so much the dearer, and so hurtful to others, who should buy those of them: Therefore by a Statute made Anno 25. Oppression by Printers or Stationers. H. 8. it was ordained, St. 25. H. 8. 15. That if any person resiant or inhabitant within this realm shall buy to sell again any printed books brought from any parts out of the King's obedience, ready bound in boards, leather, or parchment, he shall forfeit for every book bound out of the King's obeisance, and brought into this Realm, and bought by any person within the same to sell again, vj. s viii. d to the King, and the party that will seize, or sue for the same in any of the King's courts of Record by B.P.I. etc. wherein no W.E.P. etc. And if any person inhabitant or resiant within this realm, shall buy within this realm of any stranger borne out of the king's obeisance (other than of denizens) any printed books brought from any parts beyond the sea (except only in gross, and not by retail) he shall forfeit for every book so bought by retail vj. s viii. d to the King, and the party that will seize or sue for the same in any of the king's courts of Record, by B.P. or I. etc. wherein no W.E.P. etc. The said forfeitures to be always levied of the buyers of such books contrary to this statute. For that it was then thought expedient, that Printers and sellers of printed books, should as well be restrained from the oppression of others, by making excessive prices, in sale or binding of their books, as it was by the said statute provided that they should not be oppressed by others: Therefore by the before rehearsed statute of Anno 25. H. 8. it was further established, St. 25. H. 8. 15. That if any Printers or sellers of printed books, inhabiting within this Realm, do at any time in such wise enhance or increase the prices of any such printed books, in sale, or binding, at too high and unreasonable prices, in such wise as complaint thereof be made to the King, or unto the Lord Chancellor, Lord Treasurer, or any of the chief justices of the one Bench, or of the other: Then the same Lords, or two of any of them, shall have authority to inquire thereof, as well by the oaths of twelve honest and discreet persons, as otherwise by due examinations by their discretions: and after the same enhancing and increasing of the prices of the said books and binding shall be so found by the said twelve men, or otherwise by the examination of the said Lord Chancellor, Lord Treasurer, and justices or two of them: Then the same Lords, or two of them at the least, shall have power to redress such enhancing of the prices of printed books from time to time by their discretions, and to limit the prices as well of the books, as for the binding of them. And over that, the offender or offenders being convict by examination of the said Lords, or two of them, or otherwise shall forfeit for every book by them sold, whereof the price shall be enhanced for the book and binding thereof three shillings four pence to the King and party grieved, that will complain upon the same in manner and form aforesaid. St. 5. Ri. 2. 2. 14 It appeareth by the preamble of the statute of Ann 5. R. 2. that the carrying of gold or silver in money, vessel, plate or jewels forth of the Realm, was then accounted a great mischief, oppression and destruction of this land, which the policy of this State hath before, and since, by several Statutes endeavoured to restrain: As appeareth by the statutes of Ann 9 Ed 3. Anno 5. Oppression by transporting of gold and silver. R. 2. Anno 2. H. 4. Anno 2. H. 6. Anno 17. Ed. 4. Anno 4. H. 7. and Anno 19 St. 9 Ed. 3. 1 St. 5 R. 2. 2 H. 7. Whereupon by the said statute of Ann 9 Ed. 3. & Anno 5. R. 2. it was established, That whosoever doth send, or carry out of the Realm of England, any gold, or silver in money, bullion, plate, or vessel, without the King's licence, St. 2. H. 4 5. (saving for his reasonable expenses Anno 2. H. 4.) shall forfeit the value of the sum carried forth: And he which is upon his passage in any ship or vessel, for to go out of any port, haven, or creek, shall immediately confess and declare after warning unto him given by the King's searcher what gold or silver in coin or mass he hath with him for his expenses, or else that money so concealed shall be also forfeited to the King: But by the statute of Anno 2. St. 2. H. 6. 6. H. 6. ransoms for fines of English prisoners taken beyond the Sea, and the money that soldiers shall carry with them for their reasonable costs be excepted, so that the same be not done without the King's licence, And also by the same statute is excepted money for things bought in Scotland to be brought to the parts adjoining. And by the said Statute of Anno 19 H. 7. it was ordained, That no person shall carry or convey, nor cause to be carried out of this Realm, St. 19 H. 7. 5 any bullion, plate, or coin of gold or silver into Ireland above the sum of vj. s viii. d, nor convey any such bullion into any ship or boat, upon pain of forfeiture of the same, and of imprisonment and fine at the King's pleasure. 15 Because there is no mine of copper metal within this realm, Oppression by transporting copper, brass etc. where sufficient copper may be gotten, for the use of the King and his people: and for that several other metals be mixed therewith, of which divers vessels and instruments be made: And therefore the transporting thereof beyond the sea, was found by experience to be a great hindrance, and oppression to the workers thereof, and also to all those that should have the use and occupation of the same; which were in effect all sorts of housekeepers, wherefore for the restraint of the transportation of the same, first one statute was made Anno 21. St. 21. H. 8. 10. St. 33. H. 8. 7 St. 2. E. 6. 37 H. 8. And after another Anno 33. H. 8. And lastly, a third Anno 2. Ed. 6. By which two last Statutes it was enacted, That no persons shall carry or convey, or ship, to the intent to carry or convey, any brass, copper, latten, bell metal, pan metal, or shroffe metal, whether it be clear or mixed (tin and lead only excepted) into any part beyond the sea, or into any outward dominion, upon pain to forfeit the double value thereof, and x. l. for every thousand weight of the same metal so carried, or shipped to the intent to be carried, to the King, and him that will sue for the same in any of the King's courts, by A.B.P. or I. wherein no W.E.P. etc. 16 For that a great number of persons occupying the trade & faculty of pewterers within this Realm were decayed and oppressed in estate, by reason that much ware made of tin was brought out of other countries into this Realm, and because strangers did learn the occupation of Pewterers in this Realm, Oppression of pewterers. and then did departed the Realm, and taught it to the people of foreign Nations: and for that sometime Englishmen borne would travail into other countries, and teach the same to foreigners: for the restraint whereof by a Statute made Anno 25. H. 8. it was ordained, St. 25. H. 8. 9 St. 33. H. 8. 4 That no person inhabiting within this Realm, shall buy, or take by exchange for other wares any wares made out of this Realm of tin, or mixed with tin, as platters, dishes, saucers, pots, basons, ewers, flagons, goblets, saltsellers, spoons, or any other wares made of tin or pewter whatsoever it be, upon pain of forfeiture of the same wares, in whose hands soever it may be found, or taken, to the use of the King, and the finders thereof, and also lawful currant money of this Realm, to the value thereof. And further, that no stranger borne out of this Realm shall use the said craft of Pewterers, nor work any manner of vessel, or other ware aforesaid to be made of tin or pewter within any part of this Realm, upon pain of forfeiture of ten pounds to the use of the K. and I. to be recovered by A.I. wherein no W.E.P. and also upon pain of forfeiture of the same pewter or tin so wrought, in whose hands soever it be found, or taken: A pewterer shall not go to dwell in an other realm. and no persons borne within this Realm, occupying the said craft of Pewterers, shall resort into any strange countries, there to teach or exercise the said craft of pewterers, upon pain to lose the privilege and benefit of an English man. 17 Because complaint was made in Parliament, that Linen Drapers, Woollen Drapers, Haberdashers, Grocers, and Mercers dwelling in the Country out of cities, boroughs, town corporat, and market towns, did not only occupy the art and mystery of the said Sciences in the places where they dwelled, but also came unto the said cities, boroughs, towns corporat, and market towns, and there sold their wares, and took away the relief of the inhabitants of the said cities, market towns etc. to the great decay, oppression and utter undoing of the inhabitants of the same: For the reformation whereof, Oppression of inhabitants of market towns. by a Statute made Anno 1. & 2. P. & M. it was enacted, St. 1. & 2. P. & M. 7. That no person dwelling in the Country any where within England, out of any cities, boroughs, towns corporat, or market towns, shall sell, or cause to be sold by retail, any woollen cloth, linen cloth, Haberdash wares, Grocery wares, or mercery wares, at, or within any of the said cities, boroughs, towns corporat, or market towns, or within the suburbs, or liberties thereof (except it be in open fairs) upon pain of forfeiture for every time so offending the sum of vj. s viii. d, and the whole wares so sold, proffered, and offered to be sold, contrary to the intent of this Act, whereof one moiety shall be to the King, and the other moiety to him or them that will seize or sue for the same, in any of the King's Courts of Record by A.B. P.I. or otherwise, wherein no W.E.P. etc. But this shall not be hurtful to any persons that bring any of the said wares, to any of the said cities, market towns, etc. to be sold by whole sale, in gross, and not by retail, but every of them may lawfully sell the same by whole sale, in gross, and not by retail, as they might have done before. Neither shall this Act extend to any persons that dwell in the Country out of any of the said cities, boroughs, etc. but every of them at any time when he shall be free of any of the guilds or liberties of any of the said cities, market towns etc. and dwell within any of them, shall or may sell, or cause to be sold any of the wares aforesaid by retail: Neither shall this Act be prejudicial to the privileges of the universities of Oxford & Cambridge, or either of them. And it shall be lawful to all persons to sell, or cause to be sold by retail, or otherwise, all linen or woollen cloth of their own making, Cloth of their own making. in every City, Borough, Town corporat, and Market Town, as freely as they might have done before. St. 25. H. 8. 13 18 It appeareth by the words of the stat. of An. 25. H. 8. That for one man to get and take into his hands divers farms, which were ordained & provided habitations and livings for divers men: Or for one man to get into his possession many pastures or walks for sheep, by the occupying whereof several persons before had lived, was accounted a most grievous & heinous oppression, & to tend to the high displeasure of almighty God, to the decay of hospitality, to the diminishing of the king's people, to the let of cloth making, whereby many poor people did live, and to turn & incline to the utter desolation & destruction of this realm: for the redress whereof, by the same statute it was ordained, That no person or persons shall receive or take in farm, for term of years, life, or at will, by indenture, copy of Court Roll, or otherwise, any more houses or tenements of husbandry, whereunto any lands are belonging in town, village, hamlet, or tithing within this realm, above the number of two such holds or tenements: and no manner of person shall have or occupy any such holds so newly taken, to the number of two, as is before expressed, Oppression by taking of several farms. except he or they be dwelling within the same parishes where such holds be, upon pain of forf. for every week that he or they shall have, occupy, or take any profits of such holds 3. s. 4. d. whereof the one moiety shallbe to the king, & the other to the party that will sue for the same in any of the K. Courts by A.B.P.I. or otherwise within one year next after such offence committed. St. 4. H. 7. 16 And by the stat. of An. 4. H. 7. it was established, That if any person do take any several farms more than one, of any manors, lands, tenements, parsonages, or tithes within the isle of Wight, Taking of farms in the isle of Wight. whereof the farm of them altogether shall exceed the sum of x. marks, the lessée shall forf. to the king for every such taking xl. l. St. 25. H. 8. 13 19 And for the reasons last specified, the said stat. of an. 25. H. 8. did also ordain, That no person shall keep, occupy, Oppression by keeping of many sheep. or have in his possession in his own proper lands, nor in the grounds of any other which he shall have or occupy in farm, nor otherwise have of his own proper cattle, in use, possession, or property, by any manner of means or covin, above the number of two thousand sheep at one time, within any parts of this realm, of all sorts & kinds (always accounting 6. score to the hundred, and 10. such hundreds to the thousand) upon pain to forf. for every sheep that any person shall have or keep, above the number limited by this act, 3. s. 4. d. to the king and such as will sue for the same by A.B.P.I. in any court of Record, wherein no W.E.P. etc. So that the suit be commenced for the king within three years, & for a subject within one year next after the offence committed. But lambs Lambs. under the age of one whole year, and as much as shall be from the time of the falling of them unto the feast of the Nativity of S. john Baptist shall not be taken for sheep prohibited by this statute. St. 25. H. 8. 13 If any person having sheep of his own, happen to be made executor or administrator to any person which had sheep at his death, Sheep coming by executorship or marriage. or happen to be married to any person which shall have sheep at the time of the marriage, by reason whereof the said person shall by such means have above the number of 200, than he shall lose no penalty for having above the number of 2000 sheep, by such means, so that within one year next after such advancement, he do put to sale, or otherwise dispose so many of the said sheep, so to him advanced, or else of his own sheep that he had before, so that above one year he shall not keep, have, or occupy by any such means, or otherwise by any fraud, any more number of them, than is before limited, upon pain before rehearsed. If any person by his last Will give to any child within age any number of sheep, Sheep given by will to a child within age. & appoint them by his last will to be kept by his executors, St. 25. H. 8. 13. or by any other person, until the foresaid child shall come to a certain age limited by his last will: then after the death of the Testator, the said sheep so being in possession of the executors, or of any other person to the use of any such child within age, for the time that he shall be limited to have the said sheep, by the will of the Testator, shall not be accounted against the said executors, nor any person having the sheep for the intent aforesaid, any of the number of the said sheep prohibited by this act. Every person being the kings temporal subject, 25. H. 8. 13 or borne under his obeisance, Sheep kept upon inheritance or freehold. which shall have or be seized of inheritance, in possession, or in use, or that shall have a jointure in use, or in possession, or shallbe tenant in dower, or by the courtesy of, or in any manors, lands, tenements, pastures, féeding, or liberty of foldage, within any part of this realm of England, Wales, or the Marches of the same, may have, keep, & maintain upon the same, his own demesn lands, & all other his pastures, féeding, & fold courses, which he so hath, as many his own sheep & lambs, in number to his own proper behoof, as he lawfully might have had & kept upon the same at any time before the making of this act. In case any such person having any such estate in use, or in possession, of, 25. H. 8. 13 or in any lands, He that keepeth his number upon his inheritance, shall not keep upon a farm. tenements, pastures, féeding, or liberties of fold courses, do keep upon the same the number of 2000 sheep, or above, than he shall not in any wise keep or have any sheep above the number of 2000 upon any lands, pastures, or féeding, which he shall have in farm, or otherwise, upon pain of forf. for every sheep, besides the said number of 2000 3. s. 4. d. In case the said demesne lands, tenements, pastures, féeding, 25. H. 8. 13 & liberties of fold courses of any person before rehearsed, Sheep kept upon demesnes and farms. suffice not for the feeding, pasturing, & keeping of 2000 sheep, than any such person may have or feed upon the said demesn lands, & upon his farm holds (which he lawfully may have, to the said number of 2000 sheep, & not above) upon pain of forf. for every sheep above that number 3. s. 4. d. It shallbe lawful to every person keeping a household, 25. H. 8. 13 to have from time to time such convenient number of sheep, Sheep kept for the maintenance of a man's house. above the number expressed in this act, as shallbe necessary for the only expenses of his household, to be provided, kept, and fed, in and upon his own lands, or other lands, such as he lawfully can provide for, in farm, or otherwise, so that he at no time shall have for the expense of his household, or by colour of the same, above the number to him limited by this act, any number of sheep more than shall suffice for the only expenses of his household for one year, without fraud or covin. And it is lawful for all spiritual persons Spiritual persons. to keep such and as many sheep upon their own lands, and after such manner, and none otherwise, as they might have done before the making of this act. 20 As it is a thing far unfit, and not consorting with their function, that spiritual persons, who ought to live of the altar, and to be chiefly employed & devoted to the service of God, the administration of his sacraments, preaching of his Word, & instruction of his people, should busy themselves with taking of farms, buying & selling for gain in fairs & markets, occupying of Parsonages or Vicarages by farm, or with the using or keeping of tan houses or Brewhouses: So it is an oppression and means of impoverishment of other temporal persons, who do chiefly or partly live by the same trades: and therefore by a stat. made An. 21. St. 21. H. 8. 13 H. 8. it was enacted, Oppression by spiritual persons in taking of farms. That no spiritual person shall take to farm to himself, or to any person to his use, of the lease or grant of the K. or any other person or persons, by letters patents, indentures, writings, by word, or otherwise by any manner of means, any manors, lands, tenements, or other hereditaments, for term of life, years, or at will, upon pain to forf. for every month that he or they to his use do occupy such farm, by reason of such grant or lease, x. l. to the king and him that will sue, to be recovered in any of the king's Courts by A.B.P. I. wherein no W.E.P. Oppression by them in buying and selling. And that no spiritual person, of what estate or degree soever he be, shall by himself, or any other for him, to his use, bargain, and buy to sell again for gain, in any markets, fairs, or other places, any manner of cattle, Corn, Led, Tin, Hides, Leather, Tallow, Fish, Wool, Wood, or any manner of victual or merchandise, of what kind soever they be, upon pain to forfeit triple the value of the things so bought to sell again to the king and him that will sue, to be recovered in any of the king's Courts by A.B.P.I. wherein no W.E.P. But a spiritual person, who without fraud buyeth any horses, cattle, goods, etc. with only intent at the buying thereof to employ the same to the necessary apparel of himself, his servants, or household, or for the only occupying or manuring of his glebe or demesne lands annexed to his church, or for the necessary expenses of his household, and after the buying or exercising thereof, misliketh the same, that they should not be good, profitable, and convenient for the purposes abovesaid, for the which they were bought, than he may lawfully bargain, and put them away. And also other spiritual persons, not having sufficient glebe or demesne lands in their own hands in the right of their churches, houses etc. for pasturing of cattle, or increase of corn for the only expenses of their households, or for their carriages and journeys, may take in farm other lands, and buy and sell corn and cattle for the only manurance, tillage, and pasturage of such farms, so that the increase thereof be always employed to the only expenses in their households, and not to buy and sell again for any other commodity, but only the overplus of such corn and cattle above the expenses of their households, if any such shall happen to be bred and increased thereof, without fraud or covin. St. 21. H. 8. 13 And for the causes aforesaid, by the said statute of An. 21. H. 8. it was moreover ordained, That no spiritual person, beneficed with cure, Oppression by them in farming of parsonages etc. shall have or occupy by himself, or any other to his use, any Parsonage or Vicarage in farm, of the lease or grant of any other person, or take any rent or profit out of any such farm, upon pain to forf. xl. s. every week that he or any to his use shall occupy any such farm, & also shall forf. ten times the value of such profit or rend which he shall take out of any such farm, to the K. & I. to be recovered by A.I. P. etc. wherein no W.E.P. etc. Oppression by keeping a Tannehouse, or Brewhouse And moreover, no spiritual person shall have, use, or keep by himself, or any other to his use or commodity, any Tan-house, to be occupied to his use or commodity, or any Brewhouse, to any other intent, then only to be spent and occupied in his own house, upon pain to forfeit for every month so using or occupying any of the said mysteries, x. l. to the K. and I. to be recovered by A.P.I. wherein no W.E.P. &c. Oppression by taking of excessive toll. 21 Because complaint was made in parliament, that some did oppress the people, by taking excessive & outrageous toll in market towns, therefore by the stat. of West. 1. it was enacted, St. 3. E. 1. 30. That if any do take outrageous toll contrary to the custom of the realm in a market town, which is the K. town, and let to fee farm, the K. shall seize the franchise of the market into his own hands: & if it be another's town, & that be done by the lord of the town, the K. shall do in like sort: and if it be done by a bailiff or other mean officer, without the commandment of his lord, he shall restore to the plaintiff for his outrageous taking so much as he hath received of him, if he hath carried away the toll, & shallbe imprisoned xl. days. No oppression shallbe done to strangers. 22 The governors of this realm having from time to time a special regard that reciprocal courtesy & favour might be performed to all strangers & aliens, that did come into this realm to merchandise, or to any other good intent, and that Ius gentium might be yielded unto them, have made many good laws and statutes to protect & defend them from oppressions & wrongs. As K. Henry the third ordained by the stat. of Magna Charta, St. 9 H. 3. 30 That all merchants (if they were not lawfully prohibited before) shall have their safe & sure conduct to departed forth of the realm, & to come into England, & to tarry, & go through England, aswell by land as by water, to buy or sell without any manner of evil tolls, according to the ancient & lawful custemes (saving in time of war.) And if they be of a country in war with us, they shallbe attached without hurt of their bodies or goods, until it be known to us, or our chief justice, how the merchants of our land be used in that country wherewith we have war: and if our merchants be well used there, theirs shallbe so likewise with us. And by the stat. of an. 9 E. 3. St. 9 E. 3. 1. St. 25. E. 3, 2 it was enacted, That all merchant strangers & denizens, & all other the will buy and sell corn, wines, aver de pois, flesh, fish, & all other livings, & victual, wools, clothes & all other things vendible, from whence soever they come, at what place soever it be, city, borough, town, port of the sea, fair, market, or elsewhere, within the realm, within franchise, or without, may freely sell them to what person it shall please them, aswell forreins as denizens, in gross, at retail, or by parcels, at their wills to all people the will buy the same (except to the enemies of the K. and his realm) notwithstanding any charter, usage, or custom. And if any disturbance be done to any merchant stranger, or denizen, or to any other, for the sale of such things in any city, borough, town, port of the sea, or other place which hath franchise, & the majors & bailiffs, or other, which have the rule of such franchise, being required by such merchants, or other, thereof to provide remedy, & do not, & thereof be attainted, the franchise shallbe seized into the K. hands: and nevertheless, they which have done such disturbance, shall restore to the said merchant his double damages, which he hath thereby sustained. And if such disturbance or interruption be done in such places or towns where no franchise is, and the lord, if he be present, or his bailiff, constable, or other ruler of the said towns and places (in the absence of the lord) being therein required to do right, and do not, & thereof be attainted, they shall yield to the plaintiff damages, as aforesaid, & the disturbers in the one case, & in the other, as well within the Franchises as without, if they be attainted, shall have one years imprisonment, and be ransomed at the king's pleasure: No alien or denizen upon the foresaid pain shallbe troubled, but he may freely buy such things aforesaid in the said places, & carry them where it pleaseth him, to his own use, or to the profit of the king or the realm, saving that such merchants aliens shall carry no wine out of the same realm. St. 6. R. 2. 10 And by the stat. of Ann. 6. R. 2. it was established, That all aliens being in friendship with the king and the realm, & coming into any cities or towns within the realm, with fish, or other victuals, and there tarrying, & returning again to their own countries, shall be under the king's protection: and it shall be lawful to every of them to cut their fish & victuals in pieces, & by retail or in gross to sell the same. And by the stat. of ann 14. St. 14. H. 6. 6 H. 6. it was provided, That if any man disturb any alien to sell his fish in form aforesaid, he shall forf. x. l. to the K. & him that will sue. And beside, the stat. of an. 31. E. 3. 10. an. 7. R. 2. 11. an. 11. R. 2. 7. & an. 16. R. 2. 1. were made & provided to give liberty, protection, & safety to aliens & strangers, & to defend them from wrongs and oppressions. St. 23. El. 5. 23 It appeareth by the preamble of the stat. of A. 23. Oppression by making of iron works. Eliz. that by the erection of sundry iron mills in divers places of this realm, not far distant from the city of London, & from the downs & sea coasts of Sussex, the necessary provision of wood, as well timber fit for building, & other uses, as also all other fellable woods serving for fuel, doth daily decay, & become scant, to the great damage & oppression of the city of London, & the suburbs of the same, & of all other persons, having occasion daily to resort thither from all the parts of this realm: for the remedy whereof, by the same statute it was enacted, That no person or persons shall convert or employ, or cause to be converted or employed to coal or fuel, for the making of iron or iron metal, in any iron mills, furnace, or hammer, any manner of wood, or underwood, now growing, or which hereafter shall grow within the compass of 22. miles, from and about the city of London, or the suburbs of the same, or within 22. miles of the river of Thames, from Dorchester in the county of Oxford downward the same river of Thames, or within four miles of the foot of the hills called the Downs, betwixt Arundel and Pemsey in the county of Sussex, or within four miles of any of the towns of Winthelsey and Rye, or within two miles of the town of Pemsey, or within two miles of the town of Hastings in the said County, upon pain to forfeit for every load of Wood so to be employed, or converted into coal or other fuel, for the making of iron or iron metal in any iron mill, furnace, or hammer, as aforesaid, xl. s. to the Qu. and I. to be recovered by A.B.P.I. wherein no W.E.P.I. &c. But this Act shall not extend to any Woods growing, or to grow in any such parts of the Wields of Surrey, Sussex, or Kent, within the said 22. miles of the said City of London, and the river of Thames, as is distant above 18. miles from the City of London, and 8. miles from the said river of Thames. St. 23. El. 5 And by the same statute it was moreover ordained, Oppression by new iron works That no new iron works shallbe erected within 22. miles of the said city of London, nor within 14. miles of the foresaid river of Thames, nor within 4. miles of the Downs aforesaid, or of the said towns of Pensey, Winchelsey, Hastings, or Rye, upon pain of an hundred pounds to be likewise recovered and employed, as is aforesaid. But this act shall not extend to any woods or underwoods of Christopher Darrell, growing or which shall grow in the parish of Newdigate. And for the causes and reasons aforesaid, by one other stat. made An. 27. St. 27. El. 1 El. it was further enacted, That no person or persons shall make, erect, build, or new set up, at, or in any place within the counties of Sussex, Surry, or Kent, or any of them, any manner of iron mills, furnace, finary, or bloomary, for the making or working of any manner of iron, or iron metal, other then either upon such old & former bay or pens, whereupon hath lately been, or at the time of the new erection, shallbe then standing some iron mills, surnace, or hammer, or else in and upon such lands, as the party or parties so erecting any such intended new work, shall continually furnish the same with sufficient supply of his or their own wood, standing and growing upon his or their own soil or land, being to him or them in fee simple, fee tail, or for term of life or lives, without impeachment of waist at the least, and not otherwise: Nor shall convert or employ, or cause to be converted to coals or other fuel for the making or working of iron or iron metal in or about any iron mills, furnaces, hammers, finary, forge, or blomarie the body or bodies of any sound timber tree or trees, apt for the making of good & sufficient cloven wares, or sawing timber of Oak, Ash, or Elm, growing of the breadth or bigness of one foot square at the stub, or any part of the same body or bodies of any such tree or trees, upon pain of forfeiture for every iron mill, furnace, forge, finarie, or bloomarie made, erected, builded, or set up, contrary to the tenor and true meaning of this act, three hundred pounds: and for every body of such timber tree so employed or converted to coal or fuel, for the making or working of iron, as is aforesaid, xl. s. to the Q. and I. to be recovered by A.B.P. or I. wherein no W.E.P. etc. Provided always, that it shall and may be lawful to & for the owners of such trees, the bodies whereof have been or shallbe from time to time converted and employed to or for any manner of timber or cloven ware within the wields of Sussex, Surrey, or Kent, or any of them (the same not being within 18. miles of the city of London, or 8. miles of the river of Thames, or 4. miles of the towns of Rye & Winchelsey, or within 3. miles of Hastings, or within 4. miles of the foot of the Hills, called the Downs between Arundel & Pemsey, in the county of Sussex aforesaid, or any of them) to employ the tops and offals of all such trees to or for coals, or other fuel, serving to or for iron works at their own wills and pleasures: This statute or any other notwithstanding. Oppression by Brewers. 24 If any Ale or Beer brewer do sell or take for any barrel, kilderkin, St. 23. H. 8. 4 or firkin of ale or beer, above such prices as shallbe assessed by the Iust. of peace of the shire, or by the mayor, sheriff, or head officer of the city, borough, or town corporat, where the said brewer doth dwell, this is an oppression of all those that do buy the same ale & beer: and therefore by the stat. of An. 23. H. 8. the offendor shall forfeit for every barrel so sold, 6. s. for every kilderkin 3. s. 4. d. for every firkin 2. s. for every less vessel xii. d. and for a greater than a barrel, x. s. to the K. and I. Oppression of Cooper's by Brewers. And if any Brewer which breweth beer or ale to sell, St. 23. H. 8. 4 shall by himself, or any other to his use, occupy the mystery of Cooper's, or make any barrels, kilderkins, firkins, or other vessel of wood, wherein to put his beer or ale, this is an oppression of Cooper's, and by the said stat. of An. 23. H. 8. the offendor shall forf. for every vessel to the K. and I. 3. s. 4. d. But a brewer may keep a Cooper to bind, hoop, pin, and amend his vessels. 25 It is an oppression to many thousand woollen cardmakers & cardwierdrawers of this realm, who do live by the same trade, Oppression by bringing in of woollen cards. to have cards for wool brought out of foreign regions into this Realm, & here sold to the hindrance of the sale of their like wares. And therefore if any person shall bring or send, or cause to be brought or sent any such cards for wool to be bartered or sold in England or Wales, St. 39 El. 14 St. 1. jac. 25 by the stat. of An. 39 El. he shall forf. them or the very value of them to the K. and him that will seize or sue for the same. 26 If any person shall erect a new wear along the sea shore, Oppression by erecting of wears. or in any haven, harbour, or creek, or within 5. miles of the mouth of any haven or creek, or shall willingly take, destroy, or spoil any spawn, fry, or brood of any Sea fish, in any wear, or other engine or device whatsoever, Oppression by destroying of fish. this is an oppression to all those that live by or use fishing in those parts, and a hindrance to the commonwealth. St. 3. jac. 11 And therefore by the stat. of An. 3. jac. the offendor shall forfeit for every time so erecting, setting up, taking, or destroying of fish, x. l. to the king & I And if any person shall fish with any drawnet or dagnet under three inches meash, viz. one inch and a half from knot to knot (except for the taking of Smoulds in Norfolk only) or with any net with cannas, Oppression by nets. or other engine or device, whereby the spawn, fry, or brood of sea fish may be destroyed, this is also an oppression to all those that live by, or use fishing, & a hindrance to the commonwealth: and therefore the offendor shall forf. such net, & for every time so doing, x. s. whereof the one half to him that will sue, and the other half to the poor of the city, town, parish, or liberty, where the offence shall be committed. 27 For that buying, selling, and regrating of wood by greedy and covetous persons, is a mean to make the same dearer, and is a great oppression & hurt to the commonwealth, St. 7. E. 6. 7. therefore it is ordained by the stat. of An. 7. Ed. 6. That if any person shall buy any fuel, coals, or wood, but only such as will burn or consume the same, Oppression by buying & selling of fuel. or such persons as shall sell the same again by retail to such as shall burn or consume the same for their own occupying, without fraud or covin, or wharfingers or bargemen, he shall forf. to the K. & I. the triple v●lue of the same wood, coals, or fuel, as shallbe otherwise bought for lucre & gain. St. 15. H. 8. 2 28 If any person shall carry and convey, Oppression by transporting of victuals. or cause to be carried and conveyed, any victuals necessary for men's sustenance to any parts beyond the Sea (unless it be by licence under the King's great seal) saving for the victualling of Mariners and Merchants of Ships passing the Sea, and saving barreled butter, and meal, to be carried to the parts of Ireland, as hath been accustomed, this is a mean to enhance the prices of victuals within this Realm, an so an oppression to the inhabitants of the Realm. And therefore by the Statute of Anno 25. H. 8. the party offending shall forfeit the value of the thing carried to the K. and I. St. 37. H. 8. 9 St. 13. El. 8 St. 39 El. 18. 29 By the Statute of Anno 37. H. 8. Oppression by usury. and confirmed and explained by the Statute of Anno 13. El. it is ordained to be unlawful usury and an oppression, if any man do sell any merchandises or wares to another, and buy the same again within three months for a less price, knowing them to be the same that he sold: And so it is if any person by any bargain, loan, exchange, or shift of any wares, or other things, shall take in gains for the forbearing of his money or other thing one whole year, above x. l. in the 100 l. And so it is, if any person shall take above x. l. for the forbearing of 100 l. for a year, upon sale or mortgage of lands, of the profits of the same lands: and in the cases aforesaid the offendor shall forfeit for every such offence the triple value of the wares, merchandises, and other things so bargained, sold, changed, etc. and the triple value of the issues and profits of the said lands so taken, by bargain, sale or mortgage to the K. and I. and shall suffer imprisonment, & make fine at the king's pleasure. And all bands, contracts, and assurances collateral made for payment of any principal, or money to be lent, or covenant to be performed, for any usury in lending or doing of any thing, upon, or by which loan there shallbe reserved or taken above the rate of x. l. for the 100 l. for one year, shall be utterly void: and he that doth take, or covenant, or reserve to take x. l. for the forbearance of 100 l. for one year, and so after that rate, or any sum under x. l. shall forf. only that x. l. or other less sum which he doth so take, or covenant or reserve to take (though it be but a penny, or less than a penny) to the K. and I. etc. Fraudulent shadowing of usurious bargains. If A. do lend to B. 100 Co. li. 5. 70: l. and do bargain & agree with him, that if I. S. do live one whole year next coming, that then B. shall pay him xx. l. for the loan of his 100 l. for a year, and if I. S. do die within the year, that then B. shall pay him but his 100 l. again, this is an oppression of B. and an usurious bargain, and A. is to be punished according to the foresaid stat. of 37. H. 8. For as he made & reserved the interest of xx. l. payable, if I. S. should live one year, so he might as lawfully have put in the lives of xx. other persons, and so deluded the true meaning of the makers of the said Statute. And in like sort, if A. do lend to B. 100 l. for a year, & do bargain with B. that if I. S. shall live until the end of that year, than B. shall pay him xx. l. for the interest or loan of his 100 l. for that year, and if the same I. S. do die within the said year, that then B. shall repay to A. but lxxx. l. of his principal money, this is an usurious contract, and an oppression, & to be punished according to the said statute: for in both the foresaid cases there was but a shadow devised by the lender, to protect him from the penalty of that statute, which at the time of his loan he meant to offend. And therefore the stat. of 13. Eliz. 8. hath well provided, that the same stat. of 37. H. 8. shallbe most largely & strongly construed for the repressing of usury, and against all persons that shall offend against the true meaning of the said statute, by any way or device, directly or indirectly. Oppression by cutting out the head or pipe of a conduit. Oppression by burning a cart laden. Oppression by cutting off ears. Oppression by barking of trees. 30 It is an oppression, and manifest and palpable injury, if any person do wilfully, maliciously, and unlawfully cut or cause to be cut out the head or pipe of any conduit of any other persons: Or burn or cause to be burned any wain or cart laden with coals, or any other goods, or any heap of wood of any other persons prepared & felled for making of coals, billet, or Tallwood: Or to cut or cause to be cut out the tongue of any tame beast, being alive, of any other persons: Or to cut, or cause to be cut off, the ear or ears of any of the king's subjects, otherwise then by authority of Law, chance-medley, sudden affray, or adventure: Or to bark any appletrees, Pearetrées, or other fruit trees of any other persons: in all which cases, by force of the statute of Ann. 37. H. 8. the offendor shall forfeit to the party grieved triple damages, St. 37. H. 8. 6 to be recovered by action of Trespass at the common law, and to the king 10. l. for a fine. 31 It is an oppression, and a resolved intent to do hurt & wrong to others, Oppression by hawking or hunting in corn growing. if any person shall hawk or hunt with his spaniels in any ground (except his own) where corn or grain shall then grow, at such time as any eared or codded corn or grain shallbe standing and growing upon the same, or before such time as such corn or grain shallbe shocked, cocked, hiled, or copped: in which cases the stat. made an. 23. St. 23. El. 10. El. hath ordained, That the offendor shall forf. for every time that he shall so hawk or hunt, without consent of the owner of the corn, to such person as shallbe owner of the eared or codded corn, xl. s. 32 If any person shall by day or night unlawfully, without authority, break, Oppression by taking of fish. cut down, cut out, or destroy the head or dam of any pond, pool, moat, stagn, stew, or several pit, wherein fish shall be put, or stored by the owner thereof: Or shall wrongfully fish in any of the said several ponds etc. to the intent to destroy, kill, take, or steal away any of the same fish, against the will of the owner or possessor thereof, not having lawful authority so to do, this is an oppression to the said owner or possessor: St. 5. El. 21 and therefore by the stat. of an 5. El. it is enacted, That the offendor being lawfully convict of any of the said offences, at the suit of the K. or the party grieved, shall pay to the party grieved his triple damages, suffer imprisonment 3. months, & find sufficient surety for his good abearing for the space of 7. years, or else remain in prison without bail or mainprize, until he hath found such surety. And it shallbe lawful for the party grieved to take his further remedy against the offendor for his loss & damages, and upon satisfaction or confession of the damages, to release the offendor of the suretyship and good abearing at any time within seven. years. 33 I will draw toward an end of this title of Oppression, Oppression by decaying o● towns & houses of husbandry. with one of the greatest and most durable of all oppressions, viz. with oppression by pulling down of Towns, houses of Husbandry, and decaying of Tillage. When the realm ceased to be oppressed by the long & tedious civil wars, which before were many years continued between the ij. houses of York and Lancaster, and that K. Edward the fourth had overthrown Q. Margaret & Prince Edward her son at Tewksbury field, & settled the title of the Crown, & planted peace in the Realm, than some men of stirring spirits diverting their bloody humours to covetous humours, pulled down towns, & laid waste houses of husbandry, thrusting forth of doors men, women, & children, & converting the same to their own private uses: which offence then daily increasing (though it were but in Cunabilis, being about 120. years sithence) was so bewailed, exclaimed of, & cried out upon in open parliament, that the same may in a sort be resembled to the pitiful lamentation which the prophet jeremy (sitting down weeping) made, Threnae jerem. after the temple of God & the city of Jerusalem were destroyed, & the priests, levites, & Elders slain by Nabuchadnezzar K. of Babylon: Or the same may be compared to those woeful miseries & calamities which the prophet Esay foretold should after fall upon the said great city of Babylon: Esay 13. for as it appeareth by the stat. of an. 4. St. 4. H. 7. 12 St. 7. H. 8. 1. H. 7. 12. & 19 & 7. H. 8. 1. it was then holden, That by the desolation & pulling down of houses and towns, and laying to pasture land, which customably hath been manured & occupied with tillage, idleness (the ground and beginning of all mischiefs) doth increase: men, women, and children, that were daily occupied, and lived by the sowing of Corn, and breeding of cattle, and other increase, were diminished: husbandry, the greatest commodity of this Realm for sustenance, was decayed, Churches were destroyed, the service of God was withdrawn, Christian people there buried are not prayed for, the Patrons and Curates were wronged, Cities and market towns were brought to great ruin and decay, necessaries for man's sustenance were made scarce and dear, the people of the realm were sore minished, the power & defence thereof was feebled & decayed, to the high displeasure of God, & against his laws, and to the subversion of the Commonwealth, & desolation of the same. Which grievous & doleful moan made, and enormities so displayed, the grand counsel of this realm having commiseration upon, did endeavour to reform at several parliaments: as appeareth by the stat. of An. 4. H. 7. 12. & 19 Ann. 7. H. 8. 1. An. 27. H. 8. 22. An. 5. E. 6. 6. An. 2. & 3. P. & M. 8. & An. 5. El. 2. which said stat. were all after repealed by a stat. made an. 39 St. 39 El. 1 El. And then by the same stat. it was enacted, That every house that now hath (viz. 24. die Octob. an. 39 Reg. El. & An. Do. 1597. Which is an house of husbandry. ) or heretofore had 20. acres of arable land, meadow, and pasture, or more thereunto belonging, and so occupied or let to farm by the space of 3. years together, at any time since the beginning of the Qu. reign that now is (& which is not or hath not been the castle or dwelling house of any nobleman or gentleman, nor the chief mansion house of any manor) is and shall be adjudged a house of husbandry for ever: and all acres spoken of in this statute, shallbe adjudged acres according to the Statute or Ordinance de terris mensurandis. Which is an acre of land. And every person & persons, bodies politic and corporat, which shall offend in not building, erecting, repairing, continuing or maintaining of houses of husbandry, according to the purport & true meaning of the said statute, The forf. for not building a house of husbandry. shall, for every house that shall not be erected, builded, repaired, continued or maintained in necessary reparations tenantable, according to the intent of the same act, by the space of one year, forf. x. l. and so yearly x. l. until the same shallbe sufficiently erected, continued, repaired etc. and for every acre of land, meadow, or pasture, which shall not be laid unto, or let with such houses of husbandry, when the same shallbe demised, shall forf. for every year that he or they shall so offend, the sum of x. s. as long & as often as such acre shall not in those respects be ordered & used according to the intent of this act: of which forf. the K. shall have one part, the poor of the parish where the offence was committed the second part, and he that will sue in any of the K. courts of record at Westminster the third: and if none will sue, them the K. shall have also that third part. But no offendor shall be impeached or sued by virtue of this act, Within what time the suit shallbe presented except the suit be brought and commenced by the party for the king & himself, within 2. years of the same offence done: but where the suit shallbe prosecuted for the K. only etc. then within 3. years after the offence done. Oppression by decay of Tillage. 34 By the stat. of an. 39 El. 2. it was ordained, St. 39 El. 2 That all lands and grounds which now are used in tillage, or for tillage, having been tillable lands, fields or grounds, such as next before the first day of this parliament have been by the space of 12. years together at the least used in tillage, or for tillage, according to the nature of the soil, & course of husbandry used in that part of the country, shall not be converted to any sheep pasture, or to the grazing or fatting of cattle by the occupiers or possessors thereof, but shall according to the nature of that soil, & course of husbandry used in the part of the country continue to be used in tillage, and for tillage for corn & grain, & not for wood. And if any person, body politic or corporat shall offend against the premises, them the offendor shall forf. for every acre not restored or not continued, as is aforesaid, x. s. for every year that he or they so offend, to be divided into 3. parts, & then to be distributed as is aforesaid, so that the suit be commenced or prosecuted within the time or times before mentioned. I have for some special causes herein set down but only the offences & penalties mentioned in the two last specified stat. of an. 39 El. 1. & 2. Wherefore the two last stat. be not set down at large omitting purposely the exceptions, reservations, provisoes, and some other matters in the same. 35 As Menaces, Assaults, Batteries, Imprisonments, Maihems, Riots, Routs, unlawful assemblies, Forgeries, Perjuries, Maintenances, Deceits, Extortions, Oppressions, & all other the crimes before mentioned, have from one age to another been noted & accused as maladies in the common wealth, and adjudged & condemned as professed enemies to the peace of the realm, and by several laws & statutes divers penalties have been imposed upon the transgressors thereof, in a measure certain, & within some limits: So the providence of our forefathers sounding deeper into the corruption of man's nature, & foreseeing that sometime his choleric passions, & turbulent spirit, sometime the gall and bitterness of his heart, sometime his covetous & insatiable affections, & eftsoons his secret desires & devices of revenge, do carry him headlong into exorbitant & unusual designments & practices, be they never so contrary to the Laws of God, of Nature, & Reason, & in several degrees further than our said lawmakers did then either forethink, fear, or by particular words restrain: & knowing also, that the subtlety of the Serpent (and of men of the serpent's nature) doth exceed the other beasts of the field: have therefore erected & established the most honourable Court of starchamber, All the former offences punishable in the starchamber. to the intent that the wisdom of that Court, authorized partly by the K. prerogative, & partly by several laws & statutes of the realm, might search forth the serpent's subtlety, and utterly crush & dash the same: and seeing the dead letter of each law doth ordain in most cases but one kind of punishment for one sort of offence, & the circumspection of the makers of that law (were they never so wise or experienced) could not foresee all the circumstances which in time might ensue in the manner of transgressing of that law: Therefore the lords & others of that high Court, being now the speaking law, & representing the persons of the dead lawmakers, & careful expositors of their meanings, by their grave foresights & deep considerations do look into those offences which be committed contrary to the same laws, do search into every quarter, corner, & circumstance thereof, & do pierce through the very bowels & entrails of them, and the transgressors thereof: as what persons, of what estate, St. 13. H. 4. 7 St. 2. H. 5. 8 degree, ability, function, or calling committed the offence, to whom, in what manner, in what place, at what time, before whom, with what number, & for what cause the same was done, & then do inflict punishment upon the transgressors thereof, first according to the laws & statutes therefore provided, & then do qualify or aggravate the same, according to the circumstances. As it is a Riot punishable by the stat. of An. 13. H. 4. & Ann. 2. H. 5. if three persons, or more, do assemble together, and beat or maim a man, pull down his house, pale, or ditch wrongfully etc. so if a great number of mean persons, of small ability or credit, shall assault a peer of the realm, or a Knight, or Esquire, that is Custons' Rotulorum of the shire, or a justice of peace and Quorum in his country, shall strip and whip him, shall pull down his house to the ground, shall set him in the stocks, or on the pillory, shall beat his wife and children, kill his cattle, and spoil his corn before his face, and shall use other acts and words of infamy and disgrace unto him, and only for that he did cause some lawful punishment to be inflicted upon certain of them for their crimes: notwithstanding all these or such like misdemeanours, be neither Treason nor Felony by the Law, but a Riot; and yet in respect of the baseness of the parties which committed this wrong, of the cause for the which they put it in practice, of the worthiness of the person, and of his place, upon whom it was executed, of the barbarous course taken in the performance thereof, of the perilous example given to other malefactors, these rioters deserve to be censured with a much sharper punishment than the former. For as there be no bounds observed by lewd and wicked persons of their outrages, so be there no certain means or limits assigned of their punishments; but the said most honourable Court of estate may draw forth his majesties sword of justice, and first punish the said offences according to the particular laws and statutes provided therefore, and then every person transgressing by himself, according to the circumstance of his demerits: as partly may appear by the statute of anno 3. H. 7. St. 3. H. 7. 1. which expresseth some parts of the authority given to the Lords of the said Court, and more by a branch of the statute of Magna Charta, whereby it is enacted, St. 9 H. 3. 14 That every freeman shall be amerced, viz. punished for reasonable cause, & according to the quantity of his offence. And further, by the statute of Anno 33. H. 8. St. 33. H. 8. 1 which giveth the lords of the said Court of starchamber authority to punish those, who by counterfeit letters or tokens shall get other men's goods into their hands, by imprisonment, setting upon the pillory, or other corporal pain whatsoever (except death.) ❧ Treason's. 1 CRimen lesae Maiestatis, What is Treason. in our English tongue called Treason, is a great offence done to the Majesty of government and the peace of the land, which the wisdom of this Realm hath from age to age so much hated and abhorred, that they have persecuted those that were guilty therein, with most violent and untimely death, and with extreme and severe tortures: they have ordained, that an offendor therein shall be hanged, and cut down alive, that his bowels shall be cut off, and burned in his sight, that his head shall be severed from his body, that his quarters shall be divided asunder, and disposed at the King's pleasure, and made food for the birds of the air, or the beasts of the field, and that his wife and children shall be thrust out of his house and livings, that his seed and blood shall be corrupted, that his lands and goods shall be confiscated, and (as by the statute of 29. H. 6. 1. it is ordained of the Traitor john Cade) he shall be called a false Traitor for ever. And as our respective and considerate forefathers have devised to yield unto those grievous offenders Legem talionis, and to tear their bodies, lands, and goods, who do practise to rend and pull asunder this Majesty of government, by destroying the head, or such as are like to be the principal succeeding members thereof, or by dividing the body into parts, or by weakening the force and strength thereof, or by subverting the chief Magistrates of justice, or by counterfeiting, staining, or blemishing of the peculiar and royal Ensigns, Cognisances, and Sinews thereof: so have they been careful and provident, that there should be no greater number of those dreadful, sharp, and bitter laws, than urgent necessity, for the preservation of that Majesty of government required. And because it was in former times greatly doubted, and ofttimes called in question amongst the Sages of the Realm, and learned in the laws, which offences were by the common law high Treason, and which not, and which were petit Treason, and which not, and several men were of several opinions therein, and to the intent that all future ages might know, and be more vigilant to eschew the penalties thereof, King Edward the third at his Parliament begun at Westminster the thirteenth day of januarie, St. 25. E. 3. 2 in the 25. year of his reign, at the request of his Lords, and petition of his Commons, made a declaration thereof in manner as hereafter followeth, viz. It is high Treason where a man doth compass, High treason. or imagine the death of our Sovereign Lord the King, or of our Lady the Queen his wife, or of their eldest son and heir, or if a man doth deflower the King's wife, or the King's eldest daughter, being unmarried, or the king's eldest son and heirs wife: or if a man do levy war against our Lord the king in his Realm, or be adherent to the king's enemies in his Realm, giving to them aid and comfort in his Realm, or else where, and thereof be probably attainted of open deed, by people of their own condition: And if a man do counterfeit the King's great Seal, or his privy Seal, or his money (which offences Bracton doth term Crimen falsi) And if a man bring false money into this Realm, sergeant to the money of England, knowing the money to be false, Bracton de Corona, cap. 3. to merchandise, or make payment, in deceit of our Lord the King, and his people: And if a man kill the Chancellor, Treasurer, or the King's justice of the one Bench or the other, justices of Eire, and of Assizes, and all other justices assigned to hear and determine, being in their places doing their Offices. And it is to be understood, that in the cases aforesaid it ought to be adjudged Treason, which extendeth to our Lord the King and his royal Majesty. And of such Treason the forfeiture of the escheat doth appertain to our Lord the King, as well of the lands and tenements holden of others, as of himself. And moreover there is another manner of Treason, Petit treason. that is to say, When a servant killeth his Master, or a wife her husband: or when a secular or religious man killeth his Prelate, to whom he oweth faith and obedience. And such manner of Treason giveth the escheats to every Lord of his own fee. And because many other cases of like Treason may happen in time to come, which a man cannot think of, nor declare at this present: It is accorded, that if any other case supposed to be treason, that is not before specified, doth happen of new before justices, the justices shall stay without proceeding to judgement of Treason, until the case be declared and showed before the King and his Parliament, whether it ought to be adjudged Treason, or other Felony. And in case any man of this Realm do ride armed, openly or secretly, with people armed, against another, for to kill or rob him, or to take and detain him until he hath made fine and ransom to be delivered, it is not the King or his Counsels will, that in such case it shall be adjudged Treason, but it shall be adjudged Felony or Trespass, according to the law of the land in ancient time used, and according as the case doth require. And if in such case, or any like, the justices have adjudged it Treason before this time, and there by the offenders lands and tenements have come into the king's hands as forfeit, the chief Lords of the fee shall have their Escheats of those tenements which be holden of them, whether the same tenements be in the hands of the King, or of any other, by gift, or in other manner (saving to our Lord the King the year and waist, and the forfeiture of the chattels which do belong unto him in the cases aforesaid.) And in such cases writs of Scire facias shall be awarded against the tenants of the land, without any other original, and without allowing the king's protection in the same suit. And touching those lands which be in the king's hands, there shallbe writs granted to the Sheriffs of the Counties where the lands be, to deliver them out of the king's hands without delay. 2 By which statute it doth appear that there be two sorts of Treason by the ancient common laws of this Realm, viz. High Treason, and Petit Treason; High treason. High Treason when any of the grievous offences aforesaid be done, or attempted to the universal and general Majesty of government, that is to say, to the body of the whole Commonwealth, or to the King, the head, ruler, and director thereof, Petit treason. in his person, wife, issues, or authority. Petit Treason is when the bloody and grievous offence of wilful murder is done and committed by an inferior person, and one in subjection to another, that hath a dominion, or a kind of Majesty in government over the same party. And though sithence the before mentioned Statute of 25. Ed. 3. divers other offences have been made Treason by the Statutes of 21. R. 2. 3. H. 5. 4. H. 5. 8. H. 6. 14. H. 6. 20. H. 6. 4. H. 7. 22. H. 8. 26. H. 8. 27. H. 8. 28. H. 8. 31. H. 8. 32. H. 8. 33. H. 8. 35. H. 8. & 1. Ed. 6. yet every of the succeeding ages were soon weary of the said new Treasons, and thought that the grievous pains and most heinous punishments of them were too heavy and unsupportable for the Subjects of this Realm to endure. As the Lords and Commons in the Parliament holden Anno 4. St. 4. H. 4. 10 H. 4. 10. did complain, that divers pains were ordained to be Treason by the statute of 21. R. 2. insomuch that no man did know how he ought to behave himself, to do, to speak, or say, for doubt of such pains: and thereupon it was enacted, That in no time to come any treason shall be adjudged otherwise, than was ordained by the Statute of 25. Ed. 3. And long time after, the makers of the statute of Anno 1. Mar. considering and rehearsing, that the state of every King, Ruler, and Governor of any Realm, Dominion, or Commonalty, consisteth more assured by the love and favour of the subjects towards their Governor, than in the dread and fear of laws made with rigorous pains, and extreme punishment: and that laws justly made for the preservation of the Commonwealth, without extreme punishment or great penalty, are more often obeyed and kept, than laws and statutes made with great and extreme punishments; and in special such laws and statutes so made, whereby not only the ignorant, unlearned, and rude people, but also learned and expert persons minding honesty, are often trapped and snared, yea many times for words only, without any other fact or deed done or perpetrated: and therefore to the intent that the severity of such like extreme, dangerous, and perilous laws might be abolished, A repeal of former treasons. and anulled, St. 1. M. by the said statute of Anno 1. M. Parl. 1. it was ordained, That from thenceforth none act, deed, or offence, being by act of Parliament or stat. made Treason, Petit Treason, or Misprision of Treason, by words, writing, ciphering deeds, or otherwise whatsoever, shallbe taken, had, deemed, or adjudged to be High treason, Petit treason, or Misprision of treason, but only such as be declared & expressed to be high Treason, Petit treason, or Misprision of Treason, in or by the stat. of 25. E. 3. concerning Treason, or the declarations of Treasons, and none other: Nor that any pains of death, penalty, or forfeiture in any wise ensue, or be to any offendor or offenders, for the doing or committing of any Treason, Petit Treason, or Misprision of Treason, other than such as be in the said stat. of 25. E. 3. ordained and provided. By force of which stat. made Anno 1. M. the subjects of this Realm were eased and unburdened of all acts, deeds, and offences, made or declared to be treason, by the space of two hundred and more years before: Or as it may more aptly be said of all offences made Treason by any stat. or act of parliament whatsoever. But sithence the stat. of repeal made Anno 1. M. there have been divers other offences made or declared to be treason by the stat. of An. 1. M. 6. 1. & 2. P. & M. 11. 5. El. 11. 18. Offences made treason by Statutes. El. 1. 5. El. 1. 13. El. 2. 23. El. 1. 27. El. 2. & 3. jac. 4. whereof the first four were but as an addition, augmentation, enlargement, or exposition of the before specified Treasons ordained by the common law, or declared by the foresaid stat. of 25. E. 3. All which said last mentioned Treasons I will set down and express verbatim, after I have somewhat more particularly expressed how the Sages and judges of this Realm have construed and expounded several branches of the said statute of explanation made Anno 25. Ed. 3. 3 The foresaid statute of 25. Ed. 3. doth confirm it to be high treason, for any person to compass or imagine the death of our Sovereign Lord the K. the Queen, etc. by which words it doth approve what a great regard and reverend respect the common law hath always had to the person of the K. which it hath endeavoured religiously & carefully to preserve, as a thing consecrated by almighty God, and by him ordained, to be the head, health, & wealth of the kingdom, and therefore it hath engrafted a deep and settled fear in the hearts of all sorts of subjects, to offer violence or force unto it, under the pain of high treason; Leges Aluredi cap. 4. Co. li. 4. 124 in somuch as if he that is non compos mentis do kill, or attempt to kill the K. it shall be adjudged in him high treason, though if he do commit petit treason, homicide, or larceny, it shall not be imputed unto him as felony, for that he knew not what he did, neither had he malice prepenced, nor a felonious intent. And this law doth not only restrain all persons from laying violent hands upon the person of the K. but also by prevention it doth inhibit them so much as to compass or imagine, Compassing or imagining the death of the K. etc. or to devise or think in their hearts to cut off by violent or untimely death, the life of the K. Qu. etc. for the only compassing or imagination, Bracton de Corona, cap. 3. without bringing it to effect, is High treason, because that compassing and imagination doth proceed from false and traitorous hearts, and out of cruel, bloody, and murdering minds. 19 H. 6. 47. 13. H. 8. 13. Co. li. 1. 28. But seeing compassing & imagination is a secret thing lying hidden in the breast of man, and cannot be known but by an open fact or deed, it is requisite to have some thing or means to notify the same to others, before it can be discovered and punished: and therefore if it be uttered by words it is a sufficient signification thereof. Conspiracy by divers, executed by some of them. If two, three, or more, P. 1. M. Dyer 98. Co. li. 1. 28. do conspire to commit High treason, as to compass or imagine the king's death, or to levy war, and some of them after do commit and execute it, this is High treason in them all by the common law. Levying of war, or adhering to the K. enemies. 4 And because by the said statute of 25. E. 3. it is declared to be High treason, to levy war against the king in his Realm, or to be adherent to his enemies, aiding them in his Realm, or elsewhere: 13. Eliz. Dyer 298. therefore if a subject borne of this Realm being beyond the seas, doth practise with a prince or governor of another country to invade this Realm with great power, and do declare, where, how, and by what means the invasion may best be made, it is High treason: for an invasian with great power cannot be, but of likelihood it will tend to the destruction or great peril of the K. and hurt to the Realm: & moreover the said offendor hath manifested himself to be adherent to the K. enemy and to aid him with his counsel, though not in the Realm, yet elsewhere. And this offence shallbe tried in the K. Bence, The trial of his offence. or elsewhere, before such commissioners, and in such county, as the king by commission shall appoint, according to the stat. of 35. H. 8. 2. If a man do confederate with others to destroy the King, Co. li. 1. 28 subvert the realm, and to advance a rebel to be king, and do endeavour by such friends & means as he can to put the same in practice, this is high treason, and he shall suffer death, and forfeit, as in case of High treason. And if a man accompanied with a convenient number of persons, do ride towards the king, 21. Ed. 3. 23. to help him in his wars, & another doth encounter him, and kill him, this is high treason, for he doth levy war against the king, who doch encounter in fight such as be assisting to the king in his wars, and he is adherent, and giveth comfort to the K. enemies, who in open field giveth battle to the K. friends, for taking he K. part. Before the foresaid stat. of 25. E. 3. it was adjudged Treason to kill the K. messenger, 22. Ass. p. 49 who was sent to execute his commandment. 5 And though the words of the foresaid stat. of 25. E. 3. be, Counterfeiting the king's Seal. That it is High Treason for a man to counterfeit the K. great seal, or his privy seal, yet the law doth construe it a counterfeiting of the great seal, 2. H. 4. 26. 40. Ass. p. 33 to take the wax printed with the great seal, to affix it to a writing made in the K. name, and to use it as the king's commission, to gather money of the king's people, though this is not making or counterfeiting of a new seal, but the abusing of an old seal, to remove it from one Patent to another, and thereby to abuse the K. prerogative and authority, and to exact money of his subjects. And so though the letter of the law be not infringed, A. 37. H. 8. Brooke Treason 3 yet the meaning of the law, which is the essence and substance of the law, is broken; wherefore the offendor shallbe punished in this case as a traitor: And yet when a chaplain had affixed an old seal of the kings to a Patent of Nonresidence, it was adjudged but Misprision of treason, and not High treason. And notwithstanding that in the foresaid stat. of 25. Ed. 3. Consenters & aiders to treason. there is no mention made of any consenters or aiders to this counterfeiting, yet the consenters and aiders be taken to be within the purview of this stat. for in that they be aiders and consenters to a treason, 19 H. 6. 47. they be offenders, and in treason all the offenders be principals, and none accessary, and therefore they be principal traitors in this fact. 6. H. 7. 13. 1. R. 3. 1. 6 And whereas it appeareth by the foresaid stat. of Anno 25. E. 3. Counterfeiting, but not uttering of false money. that if a man do counterfeit or forge the K. money, it shall be Treason; the meaning of the said law is, that the counterfeiting or forging of the said money, shall be construed and expounded Treason, although the offendor doth not utter the same in payment: for the K. by his prerogative royal, hath the only authority to coin money, and to make the price or value of the quantity thereof, and to set a seal thereupon. 3. H. 7. 10. 11. Eliz. Dyer 266. But if false money be made within the Realm, in Ireland, or any the Dominions thereof, and another knowing thereof doth utter it in payment, he committeth not high treason, but misprision of treason. And the receiving, helping, and comforting of him which hath coined money of false metal like to the money of England, knowing him to have coined it, is but misprision of treason. 23. Ass. p. 2 A woman that did coin money before the foresaid stat. of 25. E. 3. was adjudged a traitor, and burned for the same, which doth prove, that the said offence, amongst the others before rehearsed, was high treason by the common law, and not newly ordained by that stat. He who coineth money by warrant doth abuse it. If he which doth coin money by the kings warrant in the tower of London, 3. H. 7. 10. or elsewhere, maketh it less in weight by much than the old and ancient ordinance, or coineth false metal, it is high treason in him: But yet they which do utter it in payment to the K. subjects within the Realm be not traitors, for it is in them only Misprision of Treason. 7 And whereas the words of the foresaid stat. of 25. E. 3. be, Petit treason. That there is another manner of Treason, when a servant killeth his Master, etc. although there be therein no mention made of the Mistress; yet if a man or woman servant do kill his or her Mistress or Dame, A servant killeth his Master or Mistress. it is Petit treason, 19 H. 6. 47. 12. Ass. p. 30 and within the purview and meaning of the said stat. though it be not within the letter thereof, and it was Petit Treason by the common law: for the servant is retained to serve as well the one as the other, and to be obedient as well to the one as to the other, and one of them hath affiance in the servant as well as the other. And if a servant kill his Master after he is out of service, 33. Ass. p. 7 Co. li. 1. 99 if it be upon a premeditat malice conceived against him during the time that he was in service, it is petit Treason: for the execution of the fact doth respect and look back to the original cause, which was the malice the servant conceived against his Master when he was his servant. If a servant do procure one to kill his Master, 40. Ass. p. 25 who doth kill him in the servants presence, this is petit Treason in the servant: but if he do kill him in the servants absence, then is it not petit Treason in the servant, but he is accessary to murder. 2. & 3. P. & M. Dy. 128 A woman servant conspired with a stranger to rob her Mistress, and at a time appointed in the night she did let him into the house, and led him to the bed with a candle, where her Mistress lay sleeping, & the same stranger killed her Mistress in her bed, the servant saying or doing nothing, but holding the candle: in this case the servant committed petit Treason, and was adjudged a principal therein, though the party who did the bloody fact, The wife conspireth with another to kill her husband. was but a murderer. P. 16. Eliz. Dyer 332. If a wife and a servant do conspire to kill the husband, and appoint a time and place for it, and the servant killeth the husband in the wives absence, this is petit Treason in them both, though the wife be absent: and yet the law is otherwise if he be not a servant, but a stranger: for if a woman procure a stranger to kill her husband, which he doth in her absence, she shallbe hanged and not burned, for that the principal offendor was a murderer, and not a Traitor, as the servant was in the former case. 4. Ass. p. 25. And so abettors and procurers, Abettors and procurers in petit Treason be within this part of the stat. touching petit Treason, although they are not expressly named within the letter of the statute. The son killeth father or mother. 8 Some do affirm it to be petit Treason in the son, or daughter, 21. Ed. 3. 17. to kill the father or mother, and some others do not think it to be so, unless the father or mother do at the same time give meat and drink to that son or daughter which doth kill him, or her, as to a servant, and so, that the Treason should be in respect of the duty of service broken, and not of duty of nature violated. Breaking of prison. 9 It is Petit Treason if a man outlawed of felony, 1. H. 6. 5. and imprisoned in the K. Bench, be attainted for breaking of prison, and letting at liberty such persons as were there imprisoned for Treason, and the offendor shalb● drawn and hanged. An Indictor doth discover counsel. And it hath been adjudged petit Treason in some age, 27. Ass. p. 6● and felony in another age, S. Felony etc. 15. for one of the indictors to discover the K. counsel and his fellows: but sithence it hath been taken only as finable to the King. Treasons by Statutes. 10 Besides the before mentioned offences which be explained to be Treasons by the common laws of this realm, and besides all the offences aforesaid, which were made Treason by the several stat. before rehearsed, and after repealed by the foresaid stat. of An. 1. M. there have been since that time several other offences made high Treason by several stat. which I will set down in order as they were made, and, as near as I can gather, express the causes why they were made. For as much as by the laws of this Realm small and no due and condign punishment was before provided for such evil disposed persons, as should counterfeit or forge such kind of gold or silver of other realms, as is not the proper coin of this realm, and yet permitted by the queens consent, and heretofore suffered by her progenitors to be currant in payment within this realm: nor for such persons as should counterfeit the queens sign manual, St. 1. M. 6. her privy signet, or her privy seal, therefore by a stat. made An. 1. M. 6. it was enacted, Forging the coins of other realm's currant in this realm That if any person or persons shall hereafter falsely forge or counterfeit any such kind of gold or silver, as is not the proper coin of this realm, and is or shallbe currant within this realm by the consent of the Q. her heirs or successors: or if any person or persons at any time hereafter, do falsely forge or counterfeit the Qu. sign manual, privy signet, or privy seal, Forging the King's signet Manual, etc. that then every such offence shallbe deemed & adjudged high treason, & the offenders therein, their counsellors, procurers, aiders, and abettors, being convict according to the laws of this realm, of any the said offences, shall be likewise deemed and adjudged Traitors against the Qu. her heirs and successors, and the realm, and shall suffer and have such pains of death, forf. of lands, goods, and cattles, and lose the privilege of all Sanctuary, as in case of high Treason is used and ordained. 11 Where sundry coins of gold and silver of other realms, not being the proper coin of this realm of England, and by the sufferance of the K. and Q. be currant in payment within this realm, many evil disposed persons for their own corrupt lucre, did bring into this realm from the parts beyond the sea, great quantity of forged and counterfeit money, like to the said coin of other foreign realms, and did utter the same by merchandises, and otherwise, to divers subjects of this realm, to their great damage, for that there was not any sufficient law then provided, for the condign punishment of the offenders in that behalf, St. 1. & 2. P. & M. 11. therefore by a stat. made An. 1. & 2. P. & M. it was established, That if any person or persons shall bring from the parts beyond the sea into this realm, or into any of the dominions of the same, Bringing in of counterfeit money. any such false and counterfeit coin of money being currant within this realm, as is aforesaid, knowing the same coin or money to be false & counterfeit, to the intent to utter or make payment with the same within this realm, or any the dominions of the same, by merchandizing, or otherwise, than all & every such person or persons so offending, as is aforesaid, their counsellors, procurers, aiders, and abettors, in that behalf, shallbe deemed and adjudged to be offenders in high Treason, and shall suffer (after lawful conviction or attainder thereof) such pains of death, loss and forf. of lands, goods, and cattles, as other offenders shall do in cases of high Treason. And all & every person and persons, By what evidence an offendor shallbe indicted or attainted. that shallbe accused or impeached of any of the offences contained and provided for in this stat. or of any other offence or offences, concerning the impairing, counterfeiting, or forging of any coin currant within this realm, shall and may be indicted, convicted, or attainted by such like evidence, & in such manner and form, as hath been used within this realm at any time before Anno 1. Ed. 6. Any Statute, custom, law, etc. notwithstanding. 12 Because divers false and evil disposed persons, for wicked lucre & gains sake, did diminish impair, and falsify the money and coins currant within this Realm, Clipping, washing, rounding or filing of money. by clipping, washing, rounding, and filing thereof, to the dishonour of the Queen, and loss of the subjects of this Realm: for the remedy whereof by a stat. made An. 5. El. it was enacted, That clipping, washing, rounding, St. 5. El. 11. or filing for wicked lucre or gains sake, of any the proper moneys or coins of this realm, or the dominions thereof, or of the moneys or coins of any other realm, allowed and suffered to be currant within this realm, or the dominions thereof, at this present, or that hereafter at any time shallbe the lawful moneys or coins of this realm, or the dominions thereof, or of any other realm, and by proclamation allowed and suffered to be currant here, by the Qu. her heirs or successors, shallbe taken and adjudged by virtue of this act to be treason: and the offenders therein, their counsellors, consenters, and aiders, shallbe taken, deemed, and adjudged as offenders in Treason: and being thereof lawfully convicted or attainted, according to the due order of the law, shall suffer death, and lose & forf. all his and their goods and cattles, and also shall lose and forf. all his and their lands and tenements, during his and their natural life or lives only. To whom the forfeiture shall accrue. And every person which hath any lawful grant to have and enjoy the forf. of lands, goods, or cattles of offenders, and men attainted of high treason, within any Manor, Lordship, Town, Parish, Hundred, or other precinct within this realm of England or Wales, shall & may at all times hereafter, have like liberty, to take, seize, & enjoy all such forf. of lands, tenements, goods, and cattles, as shall come or grow within their liberties, by force of the attainder of any person or persons, for & upon any offence and offences made treason by this act, as they or any of them should, ought, or might by virtue of any good and lawful grant to them or any of them heretofore had or made. Provided always, No corruption of blood, or forf. of dower. and be it enacted, That this act, nor any attainder or attainders of any person or persons, for any offence or offences made treason by this act, shall extend or be expounded, to make any corruption of blood to any the heir or heirs of any such offendor or offenders, or to make the wife of any such offendor to lose or forf. her dower, of, or in any lands, tenements, or hereditaments, or her title, action, or interest in the same: Any thing in this act contained, or attainder etc. notwithstanding. Trial of a Peer. If any of the Lords of the Parliament, or Peer of the realm, shallbe indicted of any offence made treason by this act, than they shall have their trial by their Peers, as heretofore hath been used in cases of High Treason. By a stat. made An. 3. H. 5. it was ordained, That clipping, St. 3. H. 5. 6 washing or filing of the money of the land, should be adjudged treason, but that stat. was repealed by the before rehearsed stat. of An. 1. M. as is aforesaid. 13 For that divers evil disposed persons knowing that the said act of an. 5. El. 11. being penal, aught to be expounded strictly according to the words thereof, & the like offences not by any equity to receive the like punishment, did sithence the making of the said stat. practise for gains sake, other undue means, to falsify, impair, diminish, and lighten as well the proper money of this realm, as also of other realms, Diminishing, scaling, or lightning of money. allowed to be currant within this realm and the dominions thereof by the Qu. proclamation, to the great loss and deceit of the Q. and her subjects: for the redress whereof by a Statute made Anno 18. St. 18. El. 1. Eliz. it was established, That if any person or persons shall for wicked lucre or gains sake, by any act, ways, or means whatsoever, impair, diminish, falsify, scale, or lighten the proper moneys or coins of this Realm, or any the Dominions thereof, or the moneys or coins of any other Realms, allowed and suffered to be currant, at the time of the offence committed, within this Realm of England, or any the Dominions of the same, by the proclamation of the Qu. her heirs or successors, it shall be taken, deemed, and adjudged to be Treason: and the offenders therein, their counsellors, consentors, and aiders, shall be likewise deemed and adjudged as offenders in treason, and being thereof lawfully convict or attainted, according to the due course of the laws of this realm, shall suffer death, & lose and forf. all their goods and cattles, to the Queen, her heirs and successors, and shall lose and forfeit to the Queen, her heirs and successors, all their lands, tenements, and hereditaments, during his or their natural life or lives only. Provided always, that this Act, No corruption of blood, nor forf. of dower. nor any attainder or attainders, for any offence or offences made treason by this Act, shall in any wise extend, or be judged, or expounded, to make any corruption of blood to any the heir or heirs of such offendor or offenders, or to make the wise of any such offendor to lose or forfeit the dower of, or in any lands, tenements, or hereditaments, or her title, action, or interest to the same, Any thing in this Act contained, or any attainder hereafter to be had &c. notwithstanding. If any Lord of the Parliament, or Peer of this Realm, Trial of a Peer. shallbe indicted of any offence made treason by this Act, than every of them shall have his trial by his peers, as hath been heretofore used in cases of High Treason. 14 For preservation of the queens Highness, her heirs and successors, and the dignity of the imperial Crown of this realm, and for avoiding of such hurts, perils, dishonours, and inconveniences, as have before time fallen as well to the Qu. noble progenitors, Kings of this realm, as for the whole estate thereof, by means of jurisdiction and power of the Sea of Rome, unjustly claimed and usurped within this realm, and the dominions thereof, and also of the dangers by the fautors of the said usurped power, grown to licentious boldness, St. 5. El. 1. and marvelous outrage, by a stat. made An. 5. El. it was ordained, That if any person or persons, dwelling, inhabitant, or resiant within this realm, or within any other the Qu. dominions, signiories, or countries, or in the Marches of the same, or elsewhere, within or under her obedience & power, Maintaining the authority of the Bishop of Rome. of what estate, dignity, pre-eminence, order, degree, or condition soever he or they be, shall by writing, ciphering, printing, preaching, or teaching, deed, or acts, advisedly and wittingly, hold, or stand with, to extol, set forth, maintain, or defend the jurisdiction, or power of the Bishop of Rome, or of his Sea, heretofore claimed, used, or usurped within this realm, or in any dominion or country, being, of, within, or under the queens power or obedience: Or by any speech, open deed, or act, advisedly and wittingly, attribute any such manner of jurisdiction, authority, or pre-eminence, to the said Sea of Rome, or to any Bishop of the same Sea for the time being, within this Realm, or in any the Q. dominions or countries, than every such person or persons so doing or offending, their abettors, procurers, & counsellors, and also their aidors, assistants, and maintainors, upon purpose, and to the intent to set forth, further, and extol the said usurped power, authority, or iurisdsction of any of the said Bishop or Bishops of Rome, and every of them, being thereof lawfully indicted or presented, within one year next after such offences by him or them committed, and being lawfully convicted, or attainted at any time after, according to the laws of this Realm, for every such default and offence, shall incur the danger, penalties, pains, The penalty for the first offence. and forfeitures ordained and provided by the Statute of Provision and Praemunire, St. 16. R. 2. 5 made Anno 16. R. 2. And for stronger defence and maintenance of the said Act, it was further established by authority of the said Parliament, That if any such offendor or offenders, The second offence Treason. as is aforesaid, by writing, cypering, printing, preaching, or teaching, deed, or act, advisedly, and wittingly, do hold or stand with, to extol, set forth, maintain, or defend the authority, jurisdiction, or power, of the Bishop of Rome, or of his Sea heretofore claimed, used, or usurped within this Realm, or in any Dominion or Country being of, within, or under the queens power or obedience: Or by any speech, open deed, or act, advisedly and wittingly, attribute any such manner of jurisdiction, authority, or pre-eminence to the said Sea of Rome, or to any Bishop of the same Sea for the time being, within this Realm; or in any the queens Dominions or Countries, or be to any such offendor or offenders abetting, procuring, or counseling, or aiding, assisting or comforting, upon purpose, and to the intent to set forth, further, and extol the said usurped power, authority, or jurisdiction, after such conviction and attainder, as is aforesaid, do eftsoons commit or do the said offences, or any of them, in manner and form aforesaid, and be thereof duly convicted and attainted, as is aforesaid, than every such offendor and offenders, for the same second offence and offences, shall forfeit, lose, and suffer such like and the same pains, forfeitures, judgement, and execution, as is used in case of High Treason. Provided always, that this act nor any thing therein contained, nor any attainder to be had by force of this Act, No corruption of blood, nor forf. of dower. shall not extend to make any corruption of blood, the disheriting of any heir, forfeiture of dower, nor to the prejudice of the right or title of any person or persons, other than the right & title of the offendor or offenders, during his, her, or their natural lives only. And it shall and may be lawful, to every person and persons, to whom the right or interest of any lands, tenements, or hereditaments, after the death of such offendor or offenders, should or might have appertained, if no such attainder had been, to enter into the same, without any Ouster le main to be sued, in such sort as he or they might have done if this act had never been made. Giving of alms to an offendor. Provided, that charitable giving of reasonable alms to any of the offendor or offenders above specified, without fraud or covin, shall not be taken and interpreted to be any such abetment, procuring, counseling, aiding, assisting, or comforting, as thereby the giver of such alms shall incur any pain, penalty, or forfeiture appointed in this Act. Provided also, that if any Peer of this realm shall offend contrary to this Act, or any branch or article thereof, in all such cases they shallbe tried by their peers, in such manner and form as in other cases of treason they have used to be tried, & by none other means. No person or persons shall be indicted for assisting, aiding, maintaining, comforting, or abetting of any person or persons, for any the said offences, in extolling, setting forth, or defending of the usurped power and authority of the Bishop of Rome, unless he or they be lawfully accused by such good and sufficient testimony and proof, as by the jury by whom he shallbe indicted, shallbe thought good, lawful, and sufficient to prove him or them guilty of the said offences. 15 To the intent that all usurped & foreign power & authority spiritual and temporal, may for ever be clearly extinguished & never to be used or obeyed within this realm, or any other the Q. dominions, by a stat. made an. 1. El. 1. St. 1. El. 1. it was ordained, That no foreign prince, person, prelate, state, or potentat, spiritual or temporal, shall at any time after the last day of this Session of Parliament, use, enjoy, or exercise any manner of power, jurisdiction, superiority, authority, pre-eminence or privilege Spiritual or Ecclesiastical within this Realm, or any other the queens Dominions or Countries that now be, or hereafter shall be: Abolishing of foreign authority. But from henceforth the same shall be clearly abolished out of this Realm, and all other the queens Dominions for ever: any statute, ordinance, custom, etc. notwithstanding. And for the better observation and maintenance of the said statute, it was then further enacted, Who shall take the oath for the queens supreme gogovernment. That all and every Archbishop, Bishop, and all and every other Ecclesiastical person, and other Ecclesiastical Officer and Minister, of what estate, dignity, pre-eminence, or degree soever he or they be, or shall be, and all and every temporal judge, justice, Mayor, and other lay and temporal Officer and Minister, and every other person having the queens fees or wages within this Realm, or any of her Dominions, shall make, take, and receive a corporal oath upon the Evangelists, before such person or persons as shall please the Queen, her heirs or successors to assign and name, to accept and take the same oath. And every person that at any time shallbe preferred, promoted, or collated to any archbishopric or Bishopric, or to any other Ecclesiastical benefice, promotion, dignity, office, or ministry, or that shall be by the Queen, her heirs or successors preferred to any temporal or lay office, ministry, or service, within any her Dominions, before he shall take upon him to receive, use, exercise, supply, or occupy any such archbishopric, Bishopric, promotion, dignity, office, etc. shall receive the same oath before such persons as shall have authority to admit any such person to any such office, etc. or else before such person or persons as by the Queen etc. under the great Seal, shall be assigned to minister the said oath. And every person temporal suing livery, or Ouster le main out of the hands of the Queen, her heirs or successors, before his livery or Ouster le main sued forth, and allowed: And every temporal person doing any homage to the Queen, her heirs and successors: or that shall be received into service with her, etc. shall take the foresaid corporal oath before the Lord Chancellor, or Keeper of the great Seal, or before such person or persons, as by the Queen &c. shallbe appointed to receive the same. And every person taking orders, and every other person which shallbe preferred to any degree of learning, in any University within this Realm, or dominions, before he shall receive such orders, or be preferred to such degree of learning, shall take the foresaid oath before his Ordinary, Commissary, Chancellor, or Vicechancellor, or their sufficient deputy in the said University. And by another stat. made an. 5. Eliz. it was further enacted, St. 5. El. 1. That all other persons which have taken or shall take orders, commonly called Ordines sacros, or Ecclesiastical orders, or have been or shallbe promoted, preferred, or admitted to any degree of learning in any University within this Realm, or dominions to the same belonging: And all Schoolmasters, and public and private teachers of children, as also all manner of person and persons that have taken, or hereafter shall take any degree of learning, in, or at the common laws of this realm, as well utter-barresters, benchers, readers, ancients in any house or houses of court, and all principal Treasurers, and such as be of the grand company in every Inn of Chancery, & all Atturneys, Prothonotories and Philozers, towards the laws of this realm: And all manner of Sheriffs, Escheators, and Feodaries, and all other person and persons, which have taken, or shall take upon him or them, or have been, or shall be admitteed to any Ministry or Office, in, at, or belonging to the common law, or any other law or laws, of, to, or for the execution of them, or any of them, used or allowed, or at any time hereafter to be used or allowed within this Realm, or any the Dominions or Countries belonging, or which hereafter shall happen to belong to the Crown, or dignity of the same. And all other Officers or Ministers of or towards any Court whatsoever, and every of them, shall take and pronounce a corporal oath upon the Evangelists, before he or they shall be admitted, allowed, or suffered to take upon him or them, to use, exercise, supply, or occupy any such vocation, office, degree, ministry, room, or service, as is aforesaid, and that in the open Court whereunto he doth or shall serve and belong. And if he or they do not, or shall not serve or belong to any ordinary or open Court, than he or they shall take and pronounce the oath aforesaid, in an open place before a convenient assembly to witness the same, and before such person or persons, as have, or shall have authority by common use, or otherwise, to admit or call any such person or persons, as is aforesaid, to any such Vocation, Office, Ministry, room, or service, or else before such person or persons, as by the Queen, her heirs or successors, by commission under the great Seal of England, shall be named or assigned to accept and take the same, according to the tenor, effect, and form hereafter following, viz. I A. B. do utterly testify and declare in my conscience, The Oath. that the Queen's Highness is the only supreme governor of this Realm, and of all other her highness Dominions and Countries, as well in all Spiritual or Ecclesiastical things, or causes, as temporal: And that no foreign Prince, Person, Prelate, State, or Potentate, hath, or aught to have any jurisdiction, power, superiority, pre-eminence, or authority Ecclesiastical or Spiritual, within this Realm: And therefore I do utterly renounce and forsake all foreign jurisdictions, powers, superiorities, and authorities, and do promise, that from henceforth I shall bear faith and true allegiance to the Queen's Highness, her heirs & lawful successors, and to my power shall assist and defend all jurisdictions, privileges, pre-eminences, and authorities granted or belonging to the queens Highness, her heirs and successors, or united and annexed to the imperial Crown of this Realm: So help me God, and by the contents of this book. And by the foresaid Statute of Anno 5. Elizab. 1. it was further enacted, That every Archbishop and Bishop within this Realm, A Bishop may tender the Oath. and the Dominions of the same, shall have authority to tender or minister the oath aforesaid, to every or any Spiritual or Ecclesiastical person, within their proper Diocese, as well in places and jurisdictions exempt, as not exempt. And that the Lord Chancellor, The L. Chancellor may grant commissions to tender the Oath. or Keeper of the great Seal of England for the time being, shall and may at all times hereafter, by virtue of this Act, without further warrant, make and direct Commission and Commissions under the great Seal of England, to any person or persons, giving them thereby authority to tender and minister the oath aforesaid, to such person or persons, as by the foresaid Commission or Commissions, the said Commissioners shall be authorised to tender the said oath unto. And moreover it was enacted, That if any person or persons appointed or compellable by this Act, The penalty for the first refusal of the Oath. or by the foresaid Act made Anno 1. El. 1. to take the said oath: or if any person or persons, to whom the said oath by any Commission or Commissions shall be limited or appointed to be tendered, refuse to take, or pronounce the said oath, in manner and form aforesaid, that then the party so refusing, and being thereof lawfully indicted, or presented, within one year next after such refusal, and convicted or attainted at any time after, according to the laws of this Realm, shall suffer and incur the dangers, penalties, pains, and forfeitures, ordained and appointed by the Statute of Provision and Praemunire, made An. 16. R. 2. St. 16. R. 2. 5. And also if any of the persons above named, and appointed by this Act, to take the oath aforesaid do after the space of three months next after the first tender thereof, The second refusal of the Oath high Treason. the second time refuse to take, and pronounce, or do not take and pronounce the same in form aforesaid to be tendered: That then every such offendor and offenders for the same second offence and offences shall forfeit, lose, and suffer such like, and the same pains, forfeiture, judgement, and execution as is used in cases of high treason: No corruption of blood or forfeiture of dower. But no attainder by force of this Act shall extend to make any corruption of blood, the dis-heriting of any heir, forfeiture of dower, nor to the prejudice of the right or title of any person, other than of the offendor during his, her, or their natural lives only, etc. But forasmuch as the Queen is otherwise sufficiently assured of the faith and loyalty of the Temporal Lords of her high Court of Parliament: Therefore this Act shall not extend to compel any temporal Lord, of, or above the degree of a Baron of this Realm, Temporal Lords discharged of the Oath. to take or pronounce the Oath aforesaid, nor to incur any penalty limited by this Act, for not taking, or refusing the same. Provided always, that no person shall be compelled by virtue of this Act to take the Oath above mentioned, at, or upon the second time of offering the same, according to the form appointed by this Statute, except the same person hath been, is, or shall be, an Ecclesiastical person, that had, hath, Who only shall take the Oath upon the second tender. or shall have in the time of one of the Reigns of the queens father, brother, or sister, or in the time of the queens Majesty, her heirs, or successors charge, care, or office in the Church: Or such person or persons as had, hath, or hereafter shall have any office or ministery in any Ecclesiastical Court of this Realm, under any Archbishop, or Bishop in any the times or reigns aforesaid: Or such person or persons as shall wilfully refuse to observed the orders and rites for divine service, that be authorized to be used and observed in the Church of England, after that he or they shallbe publicly by the Ordinary or some of his Officers for Ecclesiastical causes admonished to keep and observe the same: Or such as shall openly and advisedly deprave by words, writings, or any other open fact, any of the rites and ceremonies at any time used, and authorized to be used in the Church of England: Or that shall say or hear private Mass prohibited by the Laws of the Realm: And all such persons shall be compellable to take the Oath upon the second tender or offer of the same, and incur the penalties for not taking the said Oath, and none other. 16 Because divers seditious and evil disposed people have lately procured and obtained to themselves from the Bishop of Rome, and his See divers Bulls and Writings, the effect whereof hath been, and is, to absolve, and reconcile all those that will be contented to forsake their due obedience to the Queen, and to yield and submit themselves to the unlawful and usurped authority of the said Bishop and his See: and by colour of the said Bulls and Writings, have by their lewd practices, and persuasions so far wrought, that sundry simple and ignorant persons have been contented to be reconciled to the said usurped authority, and and to take Absolution at the hands of the aforesaid subtle practisers, whereby there hath grown disobedience in many, to absent themselves from divine service, and thought themselves discharged from all allegiance to her Majesty, whereby unnatural Rebellion hath ensued. For redress whereof, and to prevent great inconveniences that might ensue, by a Statute made Anno 13. Elizab. 2. it was enacted, St. 13. El. 2. That if any person or persons shall use or put in ure in any place within this Realm, Giving or taking absolution by any bulls from Rome. or any the queens dominions, any bull, writing, or instrument written, or printed, of absolution, or reconciliation, obtained from the Bishop of Rome, or any his successors, or from any other person or persons authorized, or claiming authority, by, or from the said Bishop his predecessors or successors, or See of Rome: Or if any person or persons shall take upon him or them by colour of any such bull, writing instrument, or authority, to absolve or reconcile any person or persons, or to grant or promise to any person or persons within the Realm or any other the Queen's Dominions any such absolution or reconciliation, by any speech, preaching, teaching, writing, or any other open deed: Or if any person or persons within this Realm, Obtaining of bulls from Rome. or any the queens Dominions shall willingly receive and take any such absolution or reconciliation: Or else, if any person or persons have obtained or gotten since the last day of the Parliament holden Anno 1. Elizab. or shall obtain, or get from the said Bishop of Rome, or any his successors, or See of Rome, any manner of bull, writing, or instrument written, or printed, containing any thing, matter, or cause whatsoever: or shall publish, or by any ways or means put in ure any such bull, writing, or instrument: Then all and every such Act and Acts, offence and offences shall be deemed and adjudged to be high treason, and the offendor and offenders therein, their procurers, abettors and councillors to the fact, and committing of the said offence or offences shall be deemed and adjudged high traitors, to the King, and the Realm, and being thereof lawfully indicted and attainted according to the course of the Laws of this Realm, shall suffer death, and forfeit all their lands, hereditaments, etc. and chattles as in cases of high treason, by the Laws of this Realm ought to be lost and forfeited, etc. All and every aiders, The forfeitures of Aiders, Main●●inors, etc. after the offence. comforters, or maintainers of any of the said offendor or offenders, after the committing of any of the said acts, or offences, to the intent to set forth, uphold, or allow the doing drexecution of the said usurped power, jurisdiction, or authority concerning the premises, or any part thereof, St. 16. R. 2. 5 shall incur the pains and penalties containe●●n the Statute of Praemunire made Anno 16. Ri. 2. 17 Because diverse persons evil affected had practised contrary to the meaning of the foresaid Statute of 13. Elizab. 2. by other means than by Bulls, or Instruments written or printed, to withdraw several of the queens subjects from their natural obedience to her Majesty to obey the usurped authority of the Bishop of Rome, and in respect of the same to persuade great numbers to withdraw their due obedience to her majesties Laws established for the due service of God: Persuading to the Romish religion. For reformation whereof, St. ● 3. Eli. 1 and to declare the true meaning of the same Law by a Statute made Anno 23. Elizab. 1. it was declared and enacted, That all persons whatsoever, which have or shall have, or shall pretend to have power, or shall by any ways or means put in practice to absolve, persuade, or withdraw any of the queens subjects, or any within her Realms or Dominions from their natural obedience to her Majesty, or to withrawe them for that intent from the Religion now by her highness authority established within her highness Dominions, to the Romish Religion, or move them, or any of them to promise any obedience to any pretended authority of the Sea of Rome, or of any other Prince, State, or Potentate to be had or used within her Dominions, or shall do any overt Act to that intent or purpose, and every of them shall be to all intents adjudged to be traitors: and being thereof lawfully convicted, shall have judgement, suffer, and forfeit, as in case of high Treason: And if any person shall by any means be willingly absolved, or withdrawn as aforesaid, or willingly be reconciled, Being persuaded to the Romish Religion. or shall promise any obedience to any such pretended authority, Prince, State, or Potentate, as is aforesaid: Then every such person and persons their Procurers and councillors thereunto, being thereof lawfully convicted shall be taken, tried and judged, and shall suffer and forfeit as in cases of high Treason. And for the further confirmation and explanation of the said Statute of Anno 23. Elizab. 1. and for a more augmentation thereof in some sort, there was an other Statute made Anno 3. St. 3. jac. 4 jacob. 4. whereby it was enacted, That if any person or persons shall either upon the Seas, or beyond the Seas, or in any other place within the Dominions of the King, his heirs, or successors, put in practice to absolve, persuade, or withdraw any of the Subjects of the King, his heirs, Practising to absolve or reconcile to the Romish Religion. or successors of this Realm of England, from their natural obedience to his Majesty, his heirs or successors: Or to reconcile them to the Pope or Sea of Rome; or to move them or any of them to promise obedience to any pretended Authority of the Sea of Rome, or to any other Prince, State, or Potentate: Then every such person and persons their Procurors, Aidors, Councillors, and Maintainors knowing the same, shall be to all intents adjudged Traitors, and being convicted shall have judgement, suffer, and forfeit as in case of high Treason. And if any such person as is aforesaid, either upon the Seas or beyond the Seas, or in any other place within the Dominions of the King, his heirs, or successors shall be willingly absolved, or withdrawn as aforesaid; or willingly reconciled, or shall promise obedience to any such pretended authority, Prince, Absolved or reconciled. State, or Potentate, as is aforesaid: Every such person and persons, their Procurers, councillors, Aidors, and Maintainours, knowing the same, shall be to all intents adjudged Traitors, and being convict, shall have judgement, suffer, and forfeit as in case of high Treason. But this Clause touching Reconciliation shall not extend to any person which shall be reconciled to the Pope or Sea of Rome, that shall return into this Realm, and within six days after his return, A reconciled person submitteth. before the Bishop of the Diocese, or two justices of the Peace of the County where he shall arrive, shall submit himself to the King and his laws, and take the oath of Supremacy, ordained Anno 1. Eliz. 1. and the oath set down in this Act. 18 Whereas diverse persons, called or professed jesuits, Seminary priests, and other priests made beyond the Sea, according to the order of the Romish Church, have come, and been sent into this Realm, of purpose, not only to withdraw the queens subjects from their due obedienes to her Majesty, but also to move sedition, rebellion, and open hostility within her highness Dominions: For reformation whereof, by a Statute made Anno 27. Elizab. it was enacted, That it shall not be lawful, to, jesuits and Priests shall not come into this Realm. or for any jesuite, seminary Priest, or other such Priest, Deacon, or other Religious or Ecclesiastical person whatsoever, St. 27. 2 E. 2 being borne within this Realm, or any of the Dominions thereof, and heretofore (since 24. jun. Anno 1. reginae Eliza.) made, ordained, or professed, or hereafter to be made, ordained, or professed by any authority or jurisdiction derived, challenged, or pretended from the Sea of Rome, by, or of what name, title, or degree soever the same shall be called or known, to come into, be, or remain in any part of this Realm, or any Dominions thereof, other than in such cases, and upon such special occasions only, and for such time only, as is expressed in this Act (viz. if he be so weak and infirm of body, that he cannot pass out of this Realm:) And if he do, than every such offence shall be adjudged high Treason: And every person so offending shall for his offence be adjudged a Traitor, and shall suffer, lose, and forfeit as in case of high Treason. 19 By a Statute made Anno 27. Elizab. it was established, That if any the queens subjects (not being a jesuite, seminary Priest, St. 27. El. 2. or other Priest, Deacon, or Religious or Ecclesiastical person) as is before mentined, now being, or which hereafter shall be of, or brought up in any College of jesuits, Seminary persons shall retire into England. or Seminaries, already erected or ordained, or hereafter to be erected or ordained in any parts beyond the Seas, or out of this realm, in any foreign parts, shall not within six months next after Proclamation in that behalf to be made within the city of London, under the great Seal of England return into this Realm, and thereupon within two days next after such return before the Bishop of the Diocese, or two justices of peace of the County where he shall arrive, submit himself to her Majesty and her Laws, and take the Oath set forth Anno 1. Elizab. 1. Then every such person which shall otherwise return, come into, or be in this Realm, or any other the Dominions thereof, for such offence of returning, or being in this realm, or etc. without submission as is aforesaid, shall be adjudged a Traitor, and suffer, and lose, and forfeit as in case of high Treason. 20 Having treated of Treasons generally, and first showed which be high Treasons, and which petit Treasons by the common law, and which be made treasons by Statutes: It resteth that I declare what is Misprision of treason; how many sorts thereof there be, and what is the penalty, or punishment of the offenders therein. What misprision of treason is. Misprision of treason, or felony, is most properly when any person doth understand or know that another person hath committed treason or felony, and he will not disclose it to the King, or his Council, or to some Magistrate, that it may be repressed and punished, but doth conceal it. Bracton writeth, Bracton de Corona cap. 3 That if any man doth know another to be guilty of a treason, or to be vehemently suspected thereof, he ought presently, and without any delay, come to the King if he can, or send to him if he be not able to come, or to some other near about the King, and to declare every thing in order: he ought not tarry in one place two days or two nights before he doth see the King's person, neither must he attend any other business, be it of never so great importance, for he is scarcely allowed to look back, because if he do delay, and conceal the matter for a time, he shall be accounted a manifest deceiver of the King, and as consenting and agreeing to the offence, whether the party which is accused be his familiar friend or a stranger: and if he would after accuse the offendor, he shall not be heard, unless he can prove, that he was hindered upon good cause. And to the intent it might be certainly known what misprision of treason is, the Statutes of 5. & 6. Ed. 6. St. 5. E. 6. 11 1. & 2. P. & M. 10. and 1. & 2. Ph. & M. have defined it in this manner, viz. concealment, or keeping secret of any high treason shallbe deemed and taken only misprision of treason, the offenders therein to forfeit, and suffer as in cases of misprision of treason, as heretofore hath been used: The forfeiture in misprision And in all cases of misprision of treason, the offendor shall forfeit to the King his goods, and his lands during this life, 2. R. 3. 10. and he shall be imprisoned during his life. And every treason or felony doth include Misprision, so that where any person hath committed treason or felony, the King, if he will, may cause the offendor to be indicted, and arraigned, but of misprision. But some other offences, partly by the common Law, and partly by Statute be misprision of treason, besides concealment or keeping secret of treason, which be hereafter expressed. 21 By reason that divers evil disposed persons, as well without this Realm, as within were boldened to counterfeit and forge such kind of gold and silver, and utter the same in the Realm, as is not the proper coin of this Realm, nor currant in payment in this Realm, because before there was no condign punishment provided for such offences: For the redress whereof, St. 14. El. 3 by a Statute made Anno 14. Elizab. 3. it was enacted, That if any person or persons shall hereafter falsely forge, Counterfeiting of money not currant. or counterfeit any such coin of gold or silver, as is not the proper coin of this Realm, nor permitted to be currant within this Realm: Then every such offence shall be deemed and adjudged Misprision of high Treason: And the offenders therein, their procurors, aiders, and abettors, being convicted according to the Laws of this Realm of such offences, shall be imprisoned and forfeit such Lands, goods, and Chattels, as in cases of Misprision of treason, for concealment of treason. S. Br. 6. St. 23. Eli. 1 22 By the Statute made Anno 23. Elizab. 1. Aiding of persuaders to Romish religion. it is enacted and declared, That all and every person and persons that shall wittingly be Aidors or Maintainors of such persons as shall offend in persuading or reconciling to the Romish Religion, or in being reconciled thereunto, or in any of the same offences, knowing the same, or which shall conceal any of the said offences, and shall not within twenty days at the furthest after such person's knowledge of such offence disclose the same to some justice of Peace, or other higher officer, shall be taken, tried, and judged, and shall suffer, and forfeit as offenders in misprision of Treason. S. Br. 17. Concealing of reconciliation offered. 23 By the Statute made Anno 13. Elizab. 2. it was ordained, St. 13. Eli. 2. That if any person or persons to whom any absolution, reconciliation, bull, writing, or instrument obtained from the Bishop of Rome, or any of his successors, or from any other claiming authority, from, or by them, shall be offered, moved, or persuaded to be used, put in ure, or executed, shall conceal the same offer, motion, or persuasion, and not disclose and signify the same by writing, or otherwise, within six weeks then next following, to some of the queens privy Council, or to the precedent or vicepresident established in the North, or the Marches of Wales for the time being: Then the same person or persons so concealing, shall incur the penalty and forfeit of misprision of high Treason. But no person or persons shall be troubled, in, or for misprision of high Treason, for any offence made Treason by this Act, other than such as by this Act before are declared to be in case of misprision of high Treason, S. Br. 16. Recording an indictment not found. 24 If a justice of Peace do enroll a bill of indictment not found by the Country, amongst other indictments which be found; 2. R. 3. 10. This is a great misprision, and finable, and he shall lose his office. Drawing a sword to strike a justice. 25 If one draw his sword to strike a justice assigned, Mi. 22. Ed. 3 13. sitting in place of judgement, this is misprision of Treason, and the offender being indicted, and found guilty thereof, shall have judgement to forfeit his lands and chattels, & to have his right hand cut off, & to be perpetually imprisoned: for that the justice assigned by the King's Commission to execute justice, sitteth in the place and stead of the King, and so the offender opposeth himself against the King, and the office of justice. Striking a juror in a justices presence. 26 If in the presence of a justice assigned, M. 19 Ed. 3. Fitz. judgement. 174. one do strike a jurour that is returned upon an inquest: this is misprision of Treason, and the offender being indicted thereof, shall have judgement to lose his lands and goods to the King, to have his right hand stricken off, and to be committed to perpetual prison. Striking in Westminster Hall. 27 And the same Law is, Fitz. Cor. 280. M. 2. & 3. P. & M. Dy. 188. if one strike another in Westminster Hall during the time that the King's Courts be sitting there, and be indicted thereof; this is misprision of Treason, and an indignity offered to the Magistrates, and place of justice: Therefore in this case the offender shall have judgement to have his right hand cut off, to lose his lands, and goods, and to be perpetually imprisoned. Re●scuing a prisoner arrested by a judge. 28 If one of the King's justices assigned, M. 22. Ed. 3. 13. do arrest any person which hath made a fray before him, and a stranger will rescue the prisoner, whereby he doth escape, this is misprision of Treason, and in this case, as well the prisoner, as he that made the rescous, shall forfeit to the King his lands and goods, and be imprisoned during their lives: Because the attachment of such a justice, is the Kings own attachment in the construction of Law. 29 Because striking in the King's palace, or where he shall remain in person, is a kind of disgrace offered unto, or contempt had of the majesty of the king, who is the head of the common wealth, and the chief preserver of peace therein, and therefore it is to be accounted a great Misprision, and worthy of severe punishment: wherefore for the prevention thereof, Shedding of blood within the king's palace. by a Statute made Anno 33. St. 33. H. 8. 12. H. 8. 12. it was established, That if any person or persons shall maliciously strike any other person, whereby blood shall be shed in any of the King's houses, or Palaces, or any other house wherein the king, his heirs, or successors, shall be at that time abiding in his royal person, viz. within any edifices, courts, places, gardens, orchards, or houses within the Porter's ward of any of the houses above rehearsed, or within any Gardens, privy walks, orchards, tilt-yards, woodyards, tennice-plays, cocke-fights, bowling alleys near adjoining to the said houses, and being part of the same, or within two hundred foot of the Standard of any outward gate, or gates of any of the said houses, commonly used for passage from any of the houses etc. and shallbe thereof indicted, arraigned, and attainted, according to the form of the said Statute, he so offending, shall have his right hand cut off, be imprisoned during his life, and make fine to the King at his pleasure. But this Act and the pains and forfeitures before rehearsed shall not extend to any Noble man, nor other person, that shall strike his servant within the said Palaces, or Houses, or the limits of the same, with his hand or fist, or any small staff or stick, for correction for any offence committed: Nor to any of the King's officers, that in execution of his office, shall strike any person with his hand, fist, or small staff, stick, or tipstaff: Nor to any other person that in doing service at any triumph, or any other time of service by the Kings, or any of his Council, or other his head officers commandment, shall for the execution of his said service strike any person with his hand, fist, small staff, or stick, or any tipstaff within the same palace, house, etc. although by reason of the same stroke or strokes, there happen to be any bloodshed of such person as shallbe so stricken, except the person so stricken die of the same stroke within one year next after. And so it is to be noted by the foresaid Statute of 33. H. 8. and the four cases next precedent, that striking in the King's Palace, or House where himself doth make his abode is not so penal, as striking, or drawing a weapon to strike is, where he is but represented by others in time and place of justice; for the law doth inflict a more severe punishment upon him who striketh, or draweth his weapon to strike, in place & time of execution of justice, than it doth to him who offereth the like violence in the house, and at the time where the kings own person is remaining: In which case the offendor receiveth no punishment at all for striking, or drawing of his weapons to strike, unless blood be shed thereby. Which laws do proceed of the great care and reverend respect that is had of justice, and of peace ensuing thereof. 30 For as much as some doubts and questions were moved, that certain kinds of Treasons, Misprisions, and concealments of Treasons, committed out of this Realm, could not by the common laws of this Realm be inquired of, heard, and determined within this Realm of England: for a plain declaration whereof, St. 35. H. 8. 2 26. H. 8. 13. 5. Ed. 6. 11. by a Statute made Anno 35. H. 8. it was enacted, That all manner of offences being already made or declared, or hereafter to be made or declared to be Treasons, Misprisions of Treasons, or concealments of Treasons, and done, perpetrated, or committed by any person or persons out of this Realm of England, shallbe inquired of, heard, and determined before the King's justices of his Bench for pleas to be holden before himself, Trial of treasons committed out of the Realm. by good and lawful men of the same shire, where the said Bench shall sit, and be kept: or else before such Commissioners, and in such shire of the Realm, as shall be assigned by the King's Commission, and by good and lawful men of the same Shire, in like manner and form to all intents, as if such treasons etc. had been committed in the same shire, where they shall be so inquired of, heard, and determined as is aforesaid. And if any Peer of this Realm shall be indicted of any such Treasons etc. then he shall have his trial by his Peers, etc. Which foresaid Statute of Anno 35. H. 8. remaineth in force notwithstanding the Statute of Anno 1. & 2. P. & M. 10. By which it is ordered, h. 13. El. Dyer. 298. That all Trials had, awarded, or made for any Treason, shall be had and used only according to the course of the common laws of this Realm, and not otherwise. outlawry of offenders in Treason being beyond Sea. 31 By a branch of a Statute made Anno 26. H. 8. it was ordained, That all Process of outlawry to be made within this Realm, against any offenders in Treason, being resiant or inhabiting out of this Realm, or beyond the Sea, at the time of the outlawry pronounced, shallbe as good and effectual in the law to all intents, as if any such offenders had been resiant within this Realm, at the time of such Process awarded, & outlawry pronounced. And after by a Statute made Anno 5. E. 6. it was conditioned and provided, St. 5. E. 6. 11. That if the party so outlawed shall within one year after the said outlawry pronounced, or judgement given thereupon, yield himself to the chief justice of England for the time being, and offer to traverse the said indictment, or Appel, whereupon the said outlawry shallbe pronounced: then he shallbe received to the said traverse & being thereupon found not guilty by verdict of xii. men, he shallbe clearly discharged of the said outlawry, and of all penalties and forfeitures by reason of the same; as though no such outlawry had been made. And it is to be noted, h. 12. El. Dyer 287. that the foresaid two Statutes do extend to offenders in any manner of Treasons by the Common law, or Statute, and not to those only which were declared to be Treasons by the Statute of 25. Edw. 3. 32 For the speedy trial and punishment of such persons, as shall commit any manner of Treasons within the Principality of Wales, and the Marches of the same, or elsewhere within the King's dominions, where his original Writs in the Chancery of England commonly run not, by a Statute made Anno 32. H. 8. it was enacted, That all such Treasons and Misprisions of Treasons as is aforesaid, Trial of treasons committed in wales. shall be presented, St. 32. H. 8. 4. and tried by the oaths of twelve men, inhabiting within any such Shires, and before such commissioners, as the King from time to time in such cases shall assign and appoint by his Commission, or Commissions of Oyer & Determiner, in like manner & form, as if such Treasons, or misprisions of treasons had been done and committed within such of the said Shires, into the which the said Commissions of Oyer and Determiner shall be directed, as is aforesaid: And all Presentments, Trials, Processes, judgements, Executions, and forfeitures hereafter to be had, made, or done by virtue of such Commissions, shallbe good and effectual in the law, to all purposes. Any grant, custom, or usage, to the contrary notwithstanding etc. After that, by the Statute made ann 1. & 2. P. &. M. it was enacted, That all trials hereafter to be had, St. 1. & 2. P. & M. 10. awarded, or made for any Treason, shallbe had and used only according to the due Order and Course of the common law of this Realm, & not otherwise. Quaere whether this Statute of 1. & 2. P. & M. doth repel or take away the force of the before rehearsed Statute of 32. H. 8. St. 33. H. 8. 20. 33 By a statute made ann 33. H. 8. it was established, The force of attainder of treason by the common law. That if any person or persons shallbe attainted of high Treason by the course of the common laws or statutes of this Realm, in every such case, every such attainder by the common law shallbe of as good strength, value, force, & effect, as if it had been done by authority of Parliament. And the king, his heirs, and successors shall have as much advantage by such attainder, as well of uses, rights, entries, conditions, and possessions, reversions, remainders, and all other things, as if it had been done and declared by authority of Parliament, and shallbe deemed and adjudged in actual and real possession of the lands, tenements, hereditaments, uses, goods, chattels, and all other things of the offenders so attainted, which his Highness ought lawfully to have, and which they so being attainted, aught or might lawfully lose and forfeit, if the attainder had been done by the authority of Parliament, without any office or inquisition to be found of the same: Any Law, Statute, etc. notwithstanding. Saving to all and every perfect and persons, and bodies politic, and their heirs, assigns, and successors, and every of them, (other than such person and persons which shall be attainted of high Treason, and their heirs and assigns, and every of them, and all and every other person and persons claiming by them, or any of them, or to the uses of any of them, after the said Treasons committed) all such right, title, use, possession, entry, reversions, remainders, interests, conditions, fees, offices, rents, annuities, commons, leases, and all other commodities, profits, and hereditaments whatsoever, they, or any of them, should, might, or aught to have had, if this Act had never been made. 34 Because through corruption, or negligent keeping, the Records of attainders of Treasons happen to be many times impaired, blemished, or otherwise to be defective; St. 29. El. 2. therefore by a Statute made ann 29. El. it was ordained, That no Record of attainder that now is, of any person or persons, No record of attainder shall be reversed when the offendor is executed. of or for any high Treason, where the party so attainted, is, or hath been executed for the same Treason, shall by the heir or heirs, of any such person, or by any other whatsoever, claiming in, by, from, or under any such heir, or heirs, be in any wise hereafter reversed, undone, avoided, or impeached by any plea, or for any error whatsoever. But this Act shall not extend to any Record of attainder of or for any treason upon which any writ of Error is now depending, or which Record is already reversed, repealed, or undone, by or for any error, matter, plea, or cause whatsoever, but the same shall be and remain as unto, and against that party at whose suit the same writ of Error is depending, or at whose pursuit the same Record hath been reversed, repealed, or undone, & his, & their heirs and assigns only, as if this Act had never been had, or made: Any thing in this Act etc. M. 33. H. 8. Dyer 50. 35 If an offence be murder, or other felony by the common law, Felony made treason by Statute. and after the same offence shallbe made treason by a Statute, Than it is not punishable as murder and felony, but as Treason: And no appeal will lie thereof, and the King's pardon of all Treasons will discharge the offendor therein. An English traitor subject to another prince. 36 If an English man borne being indicted of high Treason, P. 13. El. Dyer 300. will upon his arraignment plead, that he will not answer to the said indictment, for that he is a subject and servant to a foreign Prince, and not subject to the King of England: in this case the Court will record a Nihil dicit, and he shall have such judgement as is used in cases of Attainder of Treason. An alien borne committeth treason. 37 If an alien borne do commit high Treason in England in the time of peace, between England and that Nation where the same alien was borne, P. 3. & 4. P. & M. Dyer 140. H. 33. H. 6. 1 he shallbe indicted and arraigned of high treason, and shall have judgement according to his desert. But if it were in the time of war between England and that nation where the said alien was borne, than the alien shall be ransomed, and not arraigned. joining the king's arms with his own. 38 An Earl of this Realm was attainted of high treason, An. 38. H. 8. Bro. Treason 2. for joining the Arms of England before the Conquest, and the Arms since, to his own Arms, & for some other offences: Quaere within which words of the first rehearsed Statute of 25. E. 3. or of any other Statute at the time of his arraignment in force, that offence was comprised and made Treason. S. Trial by Peers. 2. ❧ Homicide. HOmicide is a word compound, and is derived of these two words, B●acton de corona. viz. hominis & cedium, and the most apt and proper definition thereof is, when one man or more men do kill another man: for if a man be killed by a dog, a beast, or other thing, it is not properly termed homicide. The said homicide may be committed by several means, viz. by justice, Homicide by justice. as when a judge doth command or pronounce his sentence, that a man attainted by course of law shall be put to death: By necessity, Homicide by necessity. as when one man killeth an other with grief and sorrow of mind, thereby to deliver himself, or that which is his, or some other persons, or things which he is bound to defend from further peril, which he or they cannot otherwise escape: By mischance, By mischance. as when a man casteth a stone at a bird, or a beast, or is in lopping or felling of a tree, and another man passing by is slain therewith, without the foreknowledge and against the will of him who did the deed: By will, By will. as when one man hath a will to fight with another, and then doth kill him, or some other that is in his company, and doth take his part in that combat: But of this Homicide by will there be two sorts, whereof the one is called Murder, and that is, By murder. when one man upon malice prepenced, and forethought, doth feloniously kill an other. And the other is called Manslaughter, or Chance medley, and that is, By manslaughter. when two men fight together upon a sudden heat of blood, without any malice precedent, and one of them doth kill the other. 2 If a man be adjudged by the court to be hanged, Homicide by justice. and the Sheriff is commanded by the judge to do execution in that manner, and he doth it accordingly; this is Homicide by justice. But if the Sheriff do behead him, or cause him to be beheaded, or by any other means to be put to death, than according to the judgement, M. 35. H. 6. 58. this is no Homicide by justice, but felony in the Sheriff, The order of law, not observed in execution of justice. for that he hath not observed the order of the Law, viz. the judgement in putting the offendor to death. And the same law is, if one which is not Sheriff, or other officer thereunto lawfully deputed, will put to death an offendor that is condemned to die upon his own authority: for that is no Homicide by justice, but felony in him who being not the King's officer thereunto assigned, hath killed one of the King's Subjects, without warrant of his law. And therefore if the judge himself who gave judgement of death against an offendor, shall after put the same offendor to death, it is not justifiable, but being indicted and arraigned thereof, he must plead not guilty. And in this case the wife may have an Appell of the death of her husband so put to death, against the said Sheriff or other person, though the heir cannot have an Appell of the death of his father so executed, because his blood is corrupted by the Attainder. 35. H. 6. 57 No man may kill him that is outlawed of felony, or attainted in a Praemunire. 3 If a man be attainted of felony by outlawry, it is Homicide by justice for the judge before whom he is brought, to command him to be put to death, and for the sheriff to see execution done of him, according to the judgement, 2. Ass. p. 3. 27. Ass. p. 4. 35. H. 6. 58. viz. to hang him: But it is felony and not Homicide by justice, for any other man of his own authority to kill him. And for as much as it was doubtful whether by the laws of this realm there was any punishment for such as kill, or slay any person or persons attainted in, or upon any Praemunire. Therefore by a Statute made ann 5. El. 1. it was enacted, St. 5. El. 1. That it shall not be lawful to any person or persons to slay or kill any person or persons in any manner attainted, or hereafter to be attainted of, in, or upon any Praemunire by pretence, reason, or authority or force of any word, or words, thing or things contained or specified in any Statute or Law of Provision and Praemunire, or in any of them: Any Law, Statute, Opinion, or Exposition to the contrary notwithstanding: So that to kill any person attainted upon a Praemunire is felony, and not Homicide by justice. Killing a fellow that will not be arrested. 4 A sheriff, a bailie, 22. Ass. p. 45 Fi. Cor. 261 or any other which hath warrant to arrest a man indicted of Felony, may well justify the kill of him, if he will not suffer himself to be arrested, but that he doth stand at his defence, in such manner, that the officer and his assistants cannot arrest him without killing of him. And in this case the officer shallbe discharged without the king's pardon: for this is homicide by justice done upon him, who refuseth to yield unto, and submit himself to the justice of the Law. And every person, as well he that hath no warrant, as he that hath, may apprehend a Felon: and if he will not yield to be arrested, but stand to his defence, or fly, the pursuer may kill him without blame, the arrest being for Felony, and therein he shall commit homicide by justice. And by the statute of Anno 1. Killing of such as be unlawfully assembled. M. it is established, That if any persons, St. 1. M. 12. above the number of two, shall unlawfully assemble together, to the intent with force & arms to do, practice, or put in ure any of the things in the said statute mentioned, than it shall be lawful to every justice of peace, and to every Sheriff, Mayor, bailiff, and other head officer of any City, or Town corporat, or to any other having the King's commission, or letters, to raise & assemble the Kings subjects in manner of war to be arrayed in such great number as he or they shall think meet or able, to the intent by violence of strength to suppress and take the said persons so unlawfully assembled. And if the said persons so unlawfully assembled, or any of them shall fortune to be slain, maihemed, or hurt, in, or about the repressing or taking of them, than every such justice, mayor, sheriff, etc. and every other person having authority as is aforesaid, and every person and persons by him or them assembled, shallbe free, discharged, and unpunished, as well against the King, as against all and every other person and persons, of, for, or concerning such kill, maiheming, hurting, etc. for it is homicide by justice done and committed by persons lawfully authorised, upon such riotous and rebellious persons which after Proclamation made will not departed, and sever themselves asunder, and submit and yield themselves obedient to the law of the Realm. S. Riots 37. 5 As any man may justify the kill of another before arrest, Killing him that is carrying to the jail. if he will not yield, so may he do after arrest, if there be any inevitable necessity therein: as if an offendor be arrested for felony, 22. Ass p. 55 Fitz. Cor. 288. and when he is in leading towards the jail he breaketh from those that do conduct him, and flieth away, and his conductors do pursue him so, that they cannot apprehend and take him again without killing of him: In this case, if they do kill him, this is homicide by justice, and justifiable, for that the offenders would not yield to the trial & justice of the law. But if he which killed the offendor, procured the matter which is justifiable for the cause aforesaid, to be found before himself, in respect of some jurisdiction which he hath to inquire of felonies, Fi. Cor. 328 he shall not be discharged upon such an indictment found, until he be arraigned thereof, and the matter also found by verdict, because he himself was judge. But the law is otherwise if it were found before other commissioners. 6 As a man may kill an offendor before arrest, Killing a prisoner attempting to escape. or after arrest if he will not yield, so in some case a man may kill him that is under arrest, & in prison: As a Gaoler came in the night with a Lantern in his hand to see his prisoners, who before his coming had broken their irons, 22. Ass. p 55 and stood all ready to kill him, and did beat and evil entreat him, and he having a hatchet in his hand, therewith slew two of them, and escaped from the residue: This was adjudged to be well done, and to deserve no punishment, for this was by the Gaoler homicide done by justice, to kill them who attempted to kill him, and who endeavoured to escape the trial and justice of the law. St. 24. H. 8. 5 7 It appeareth by the Statute of ann 24. H. 8. 5. Killing him that attempteth robbery or burglary. That it is homicide justifiable, if a man do kill an offendor which attempteth feloniously to rob, or murder him, 22. Ass. p. 55 26. As p. 23 & 32. Co. l. 5. f. 91 Fi. Cor. 303 & 305. in, or near any high way, cart way, horse way, or foot way, or in his mansion house, or to kill him which attempteth burglary to break his dwelling house in the night, and that the same shallbe by verdict so found and tried; for he shall neither lose lands, goods, or cattles for the death of any such evil disposed person, but shallbe fully discharged as if he were acquit thereof. 8 To the intent that Trespassors in forests, chaces, parks, and warrens, Killing of an offendor in a Park, warren, or forest. may more charily eschew, and fear to enter and trespass in the same, by a Statute made ann 21. Stat. 11. E. 1. E. 1. it was ordained, That if any forester, parke-kéeper, or warreiner shall find any offenders within his bailiwick there wandering and doing hurt, which after Hue & Cry levied to keep the peace, and obey the law, will not yield themselves to the Forester etc. but will fly & defend themselves by violence, Then though the Foresters, Park-kéepers, and Warreiners, & any other coming in their company to keep the King's peace, endeavouring to arrest such offenders, do kill any of the same offenders, he shall neither suffer death, nor sustain any other trouble or punishment therefore: But if any of the said Foresters, Parke-keepers, or Warriners, or any other by reason of contention, despite, or hatred, will lay to any man's charge passing through his bailiwick, that he came thither to do hurt, whereas he did not, neither was found wandering or offending, and so kill him, and thereof be convicted, he shallbe punished for his death, as he ought to be for the death of an other being in the King's peace. And by this means the Forester doth commit homicide by justice upon the offendor, because he will not submit himself, and yield to be justified by the law. 9 If the king have an ancient Chase, whereof the Lieutenants, M. 15. & 16 El. Dyer. 327. or Keepers have used time out of the remembrance of man, as well by night as by day to hunt in the Manor of Dale adjoining to the said Chase such dear as do strate out of the same Chase into the said Manor, as in the purlewe of the said chase, but yet divided from the same with hedge and ditch. And after the same Manor of Dale doth come unto the King's hands, and the King doth grant the same Manor to another and his heirs, and further doth grant unto the same person free Warreine in all his demesne lands of the said Manor, Unity of possession in a chase, and a manor adjoining, having free warrein. which free Warreine hath been before confirmed by divers ancient Charters with these words, viz. Ita quod nullus intret in Warrennam illam ad fugandum sine licentia & voluntate of the grantee of the said Manor. In this case, notwithstanding the unity of the possession of the Chase, and the Manor of D. in the king, and notwithstanding the Kings grant of the manor, and the confirmation of the warreine with the general words of the Prohibition aforesaid (which do only extend to the Subject) the king's liberty of the purlewe doth remain unextinguished. And therefore if one of the King's Keepers of the said Chase shall come into the said Manor of D. being purliew to fetch in his strayed deer, it is not lawful for the Lord of the said manor of D. or for any of his servants to kill him after hue and cry made to keep the peace, and obey the law, and if he do, it is not justifiable by the foresaid Statute of 21. Ed. 1. for he cannot commit homicide by justice, nor justify the kill of him in his Warreine, who hath in a sort, and to some purpose, interest, to come into the said ground to fetch forth his strayed dear. One killing another in combat. 10 If in Appell of murder, burglary, or other felony, the defendant do, 37 H. 6. 21 plead not guilty, ready to defend it by his body, and the Appellant and appellee do join in the combat, and one of them do kill another in battle: This is Homicide by justice, and not punishable: for as the law of the Realm doth allow trial by battle in that case, so doth it ratify and confirm the event and success thereof to be justifiable. And the law (depending upon the judgement of God, who giveth victory according to the truth) hath assigned either of them to do execution of justice upon the other, as it hath assigned the Sheriff to do execution of justice upon him that after verdict, confession, or outlawry is condemned to die. Homicide upon necessity. 11 Homicide upon necessity, as before is said, is when one man killeth an other with grief of mind, and sorrow of heart, and being enforced unto it, thereby to deliver himself, or that which is his, or some other persons that he is bound to defend from further petal, which otherwise cannot be avoided, and this homicide is by law justifiable. As if one or divers persons come to a man's house to burn his house, Homicide in defence of his house from burning. but he or they do not burn it, 26. As p. 23 if the owner of the house or any of his servants do shoot forth of the house, Co. l. 5. 91. and kill the offenders or any of them, this is homicide by necessity in defence of his house, and not felony. Lex Al●re. di. And in like sort if one or more come to a man's house to rob him, Homicide in defence of a man ●rom robbery. and the owner or any of his servants, or company being with him in the house do kill the offenders, or any of them, this is homicide by necessity in defence of his goods, and thereby justifiable: for a servant may justify the kill of an other in defence of his master's person, 21. H. 7. 39 or house, if the offence can not be otherwise avoided. And he may justify the kill of him who rob and killed his Master, 26. Ass. p. 23 so that he do it presently. And if one do attempt to rob 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 King's pardon. And so shall he in the other former cases, where any do attempt to burn, or rob a man's house: for a man's house is his Castle, out of which the Law will not compel him to fly. 21. H. 7. 39 12 Forasmuch as it was in question, and doubt, if any evil disposed person or persons, do attempt feloniously to rob or murder any person or persons, in, or nigh any common high way, cart way, horse way, or foot way, or in their mansion, messages, or dwelling places: Or that feloniously do attempt to break any dwelling house in the night time, should happen being in their such felonious intent, to be slain by him, or them whom the said evil doers should so attempt to rob, or murder, or by any person or persons being in the dwelling house which the same evil doers shall attempt burglarily to break by night, if the said person so happening in such cases to slay any person so attempting to commit such murder, or burglary, should for the death of such evil disposed person forfeit and lose his goods and chattles for the same, as any other person should do, that by chance medley should happen to kill any other person in his or their defence: for the declaration of which ambiguity 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 evil disposed person or persons, attempting to murder, rob, No forfeiture for homicide upon necessity. or burglarily to break mansion houses as is aforesaid, that the person or persons so indicted, or appealed thereof, and of the same by verdict so found and tried, shall not forfeit or lose any lands, tenements, goods, or chattles, for the death of any such evil disposed person in such manner slain, but shall be thereof, and for the same fully acquitted and discharged, in like manner as the same person or persons should be, if he or they were lawfully acquitted of the death of the said evil disposed person or persons. 13 But if one man do come in the day time to an other man's house, Killing another in his own defence in his own house. and doth make an assault upon him in his own house, Fi. Cor. 305 and doth fight with him, if the owner of the house do slay the assailant in his own defence, the owner of the house shall forfeit his goods, and be driven to sue for the King's pardon, except that it be proved and found, that the assailant came also to rob the other in his house. 14 Homicide in a man's own defence, aught to be so great, Necessity inevitable is requisite in homicide in his own defence. and upon such necessity, that it must be esteemed to be inevitable, or otherwise it will not excuse: for here the killer of the man hath not to do with a fellow, as in some of the former cases, but with a lawful and true man. And it is not material whether the person that did kill, or the person which was slain did begin the fray, but the whole matter will consist upon the inevitable necessity, without the which the kill is by no means excusable. The definition of homicide in his own defence. And therefore the true definition of Homicide in his own 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 flee so far as he can for saving of his life, so that he is come to a strait, beyond the which he cannot fly, and the Assailant doth continue his assault; whereupon the defendant doth strike the assailant, and doth kill him, this is homicide in his own defence. For if the defendant could have avoided the assailant, and did not, but when the assailant did strike him, 43. Ass. p. 31 he did strike him again and killed him, this is felony in the defendant. And though the defendant doth give to the assailant divers wounds, yet that is not material, if he fly to a strait before he doth give him the mortal wound: for the Law doth allow that justifiable, which a man doth in defence of his own person. And yet in the case aforesaid, if the defendant upon malice prepenced, doth strike another and then fly to a wall or strait, 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 own defence: for the malice prepenced was the ground and beginner of this homicide, and not necessity inevitable. Where in homicide in his own defence goods shall be forfeit, and where not. 15 One man did strike another to the ground, 44. Ass. p. 17 and then drew his knife to kill him, and the defendant lying upon the ground drew his knife, and the assailant was so hasty to kill the defendant, that he did fall upon the defendants knife, and so was slain: In this case the defendant was not adjudged guilty of the assailants death, neither did he forfeit his goods, for the assailant in a manner killed himself. But if one man do strike another, and the defendant doth fly to a strait, Fi. Cor. 286 287. and there being and perceiving that the assailant would kill him, holdeth a pitchfork between the assailant and him, and the assailant is so fierce that he runneth upon the pitchfork, and is slain: In this case the defendant shall be forced to purchase his pardon, and shall forfeit his goods, for here he did not lie upon the ground, but stood upon his feet, and so might have made some other defence for his safety, that the other in the case aforesaid lying upon the ground could not do. Killing of a man in his own defence found by verdict. 16 When a man is indicted and arraigned of murder or manslaughter, 43. Ass p. 31 26. H. 8. 11. it is not a sufficient verdict for the jury to say, that the prisoner killed the dead man in his own defence; but they must show specially how: And though it be specially found upon the indictment, yet the prisoner shall not be discharged, until he hath purchased his Charter of pardon; for that it is a confession by implication of the indictment: Or otherwise he shall wholly estrange himself from the fact, and plead not guilty. And this is done to the intent to induce a forfeiture of his goods, which be forfeit for the said offence: for the better corroboration and establishment whereof, the Statute of Anno 6. E. 1. St. 6. E. 1. 9 made at Gloucester was ordained, by which it is enacted, That no writ shallbe awarded out of the Chancery touching the death of a man, to inquire if a man killed another by misadventure, or in his own defence, or in other manner, without felony: but the prisoner shall remain in the jail until the coming of the justices in Eire, or assigned to deliver the jail, and then he shall put himself upon the country before them of good and evil: And if it be found by the country that he did it in his own defence, or by misadventure, the justices shall give intelligence thereof to the King, & the king shall give him pardon, if he please. And so note, that though by this Stat. the life of a man is meant to be pardoned, Why the goods shallbe forfeited. who doth kill another by misfortune, 21. E. 3. 17 or in his own defence (for the which by the common law he should have been hanged) yet his goods do remain forfeit to the K. as they were at the common law, Et ipse in misericordia dni regis. 17 Whereas the foresaid Statute of Anno 6. Ed. 1. hath ordained, The prisoner indicted must put himself upon the country. That the prisoner shall put himself upon the inquest of good & evil, that is to be intended, when he is indicted of murder, or homicide, & not where in the indictment the special matter is found: for to such an indictment of murder or homicide, 4. H. 7. 2. Kel. fol. 53. 26. H. 8. 5. he must plead not guilty, because it is no plea to plead the special matter, viz. that he killed the dead man in his own defence, for than it should be as a justification of the offence, whereas this kind of homicide is in no manner justifiable: wherefore he must plead not guilty, and then the special matter being found by verdict, shall give him advantage. 18 He that is in this manner charged for the kill of a man in his own defence, shall not be discharged thereof, until he hath obtained the King's pardon, How he shall be discharged who killeth a man in his own defence. or be acquit thereof, and then his discharge shallbe in this manner, viz. if he desire to purchase his pardon, he shall first be let to mainprize, & then shall sue to have the Record certified by the justices before whom he was arraigned to the Chancellor of England, Fi. Cor. 116 361. Fi. N. B. 246. who shall make him a charter of pardon, without speaking to the king: for the giving of intelligence to the King, whereof the foresaid Statute of Gloucester maketh mention, is intended to certify him in the Chancery: for that in law the King is always said to be present in the Chancery, to give ear to every of his subjects petitions. 19 Homicide by misadventure is when any person without any evil intent doth a thing that is lawful, or which is not prohibited by the law, Homicide by misadventure. & yet another is slain, or cometh to his death thereby: as if a man casteth a stone at a bird, or a beast, & another man or woman passing by the way is stricken thereby, & dieth: Or if one man be in felling of a tree, and the same tree, What is homicide by misadventure. or some arm or bough thereof falleth upon another person, & killeth him: Or if one do shoot an arrow at a Butt, or other mark, and another passing that way is killed therewith; Or if one man do let a stone or a piece of timber fall from a house, or out of a window, and another passing that way is killed by it, this manner of killing is homicide by misadventure, Fi. Cor. 302 354. St. 6. Ed. 1. 9 for the which he that doth kill shall have his pardon of course, as it doth appear by the before rehearsed stat. of Gloucester, and also he shall forfeit his good, as in the foresaid case of killing of a man in his own defence. But in this case it is to be considered, whether he that committed this homicide by Misadventure was then busied in a thing that was lawful, or unlawful, for if he were doing of a lawful act, as if the Schoolmaster do in reasonable manner beat his Scholar for correction only, or the master his servant, and after the Scholar or Servant dieth: Or two men do by consent wrestle one with another, Kel. fol. 108 136. and one giveth the other a fall and hurteth him, whereby he dieth: Or one doth play with the other at hand sword by consent, and one of them giveth the other a blow, or thrust, whereby he dieth: or if a man do cast wood, stone, or other thing from a cart, a house, or from a window, hovel, or rick, & another is oppressed therewith, and dieth: Or if a man being in due and convenient time doing any thing that might breed danger to passengers thereby, do cry out with so loud and audible voice to give warning thereof, that any other which traveleth that way may hear and fly the peril, and yet one careless and nrt respective of his life and safety is oppressed therewith and dieth: Or where two men do run at Tilt, just, or fight at Barriers together by the King's commandment, and one of them doth kill another, in these cases & the like the offences shallbe adjudged as homicide by misadventure. P. 11. H. 7 33. But if a man being in doing of an unlawful act, as casting of stones into a high way where men do usually pass, or shooting of arrows into a Market, or other place, whither men do usually resort, or fight at Barriers, or running at Tilt, or Iustes with others without the king's commandment, P. 11. H. 7. 23 whereby a man is slain: in these last specified cases it is felony at the least, viz. manslaughter, if it be not murder; for the offendor being doing of an unlawful act by his own will, the law will construe his meaning and will therein by the success of the act. As if two men be fight together, and a third man cometh to part them, & he is slain, Fitz. Cor. 262. 22. Ass. p. 71 by one of those two without any malice prepenced, or evil intent in him that slew him: this is murder in him that killed him, and not Homicide by misadventure, because they both that fought together were doing of an unlawful act. And if they both that did fight together, 2. & 3. P. M. Dyer 128. came thither with malice prepenced, one intending to kill the other, then is it murder in them both. The like order in misadventure as in his own defence. 20 The same order shallbe observed in the pleading, verdict, forfeiture, and pardon of one which killeth another by misadventure, as shallbe of him who slayeth another in his own defence: St. 6. Ed. 1. 9 And the before rehearsed Statute of Gloucester shall extend as well to the one as to the other. Homicide by murder or manslaughter 21 Homicide by murder is when one man upon malice prepenced doth kill another feloniously. And because it should be certainly known to all persons, which offences should be adjudged murder, by a Statute made at Marlbridge Anno 52. H. 3. it was ordained, St. 52. H. 3. 26. That murder from henceforth shall not be judged before the King's justices, What is murder. where it is found misfortune only; but murder shallbe intended upon them which be feloniously slain, viz. with a premeditate and malicious mind. Pl. come. 261 And some do define murder to be a secret kill of one man by another, none being present, nor none knowing thereof. But if one man kill another upon malice prepenced, the law doth not respect whether he do kill him secretly, or openly, or whether he that was slain be an English man, or other country man, so that he lived under the King's protection: Neither doth the law regard who gave the first blow, for though he that was slain did strike the first blow, yet if he were slain upon malice prepenced, it shallbe adjudged murder in him that killed him. What is manslaughter. And manslaughter, otherwise called Chance medley, is when two do fight together upon the sudden, Pl. come. 261 without any malice precedent, and one of them doth kill the other; in which case the offendor shall have his Clergy. The name of murder. 22 The name of murder is an old and ancient term, and it is the rather continued to make a difference between Homicide committed by Chance medley, and Homicide committed by malice prepenced. And therefore if a man be indicted of murder, Murder more grievous than felony. a pardon of all felonies will not excuse & discharge him; as it appeareth by the Statute of ann 13. R. 2. which hath ordained, St. 13. R. 2. 1 Stat. 2. S. Pardon. 5 That no charter of pardon shallbe allowed before any justice for murder, for the death of a man slain by a wait, assault, or malice prepenced, Treason, or Rape of a woman, unless the same murder etc. be specified in the same Charter: For murder is a more grievous and hateful offence in the hearts, and ears of men, than other felonies be. And yet if a Commission be granted to certain persons to inquire of all felonies, they may thereby take indictments of murder, Kel. fol. 91. though a pardon of all felonies will not avail him, who hath committed murder; but that is in respect of the Statute aforesaid. St. 1. E. 6. 12 23 By a Statute made Anno 1. Ed. 6. it was ordained, Wilful poisoning. That all wilful kill by poisoning of any person or persons that at any time hereafter shall be committed or done, shall be adjudged and taken wilful murder, of malice prepenced: and that the offenders therein, their aiders, abettors, procurers, and councillors shall suffer death, and forfeit in every behalf, as in other cases of wilful murder of malice prepenced. 24 To the end that stabbing, and kill men on the sudden, done by many inhuman and wicked persons, in the time of their rage, drunkenness, hidden displeasure, or other passion of mind, may be from henceforth restrained through fear of due punishment to be inflicted on such cruel and bloody malefactors, who heretofore have been thereunto emboldened, by presuming on the benefit of Clergy: St. 1. jac. 8. Therefore by a Statute made Anno 1. jac. it was enacted, That if any person or persons shall stab, Stabbing to death wilful murder. or thrust any person or persons, that hath not then a weapon drawn, or hath not then first stricken the party which shall so stab or thrust, so as the person or persons so stabbed or thrust shall die within the space of six months then next following (although it cannot be proved that the same was done of malice forethought) yet the party so offending, and being thereof convicted by verdict of xii. men, confession, or otherwise, according to the laws of this realm, shall be excluded from the benefit of his or their Clergy, and suffer death, as in case of wilful murder. Provided always, that this Act shall not extend to any person or persons, which shall kill any person or persons, se defendendo, or by misfortune, or in any other manner than as is aforesaid: nor shall extend to any person or persons, that in keeping and preserving the peace, shall chance to commit manslaughter, so as the said manslaughter be not committed wittingly, willingly, and of purpose, under colour or pretence of keeping of the peace; nor shall extend to any person or persons, which in chastising his child or servant, shall beside his or their intents or purpose, chance to commit manslaughter. Co. l. 4. 40. 25 If upon a fray made, the Constable with others to assist him, Constable or other is slain in parting of a fray. do come to part the fray, and to preserve the peace, and in doing of his office, the Constable, or any of his assistants shall be slain, this is wilful murder in him that slew him, although the murderer did not know the party whom he killed, and although the fray was on the sudden: Because the Constable and his assistants came by authority, warrant, and command of the Law to keep the peace, and avoid the danger which might ensue by the breach thereof: And therefore the Law doth adjudge this murder, and that the murderer had a prepenced malice in him, to oppose himself against the Law and the justice of the Realm. And if the Sheriff or any of his Bailiffs, or Officers be killed in the execution of the King's Process, or in doing their office, The Sheriff or his officer is slain in execution of Processs●. this is murder. And it is murder, if a watchman be killed in watching, and doing of his office; for in those cases the Law doth construe the offence, not only as done to the person that is slain, but to the office of execution of justice, or the keeping of the peace, which the law had imposed upon him that was slain, and so the offender by killing of this man, hath done as much as in him lieth, to restrain the execution of justice, or to hinder the preservation of the peace. Murder and manslaughter committed in the death of one man. 26 If a man go with malice prepenced to fight with an other, and to kill him, and a third person seeing them fight, Plo. Com. 100 goeth on the sudden without malice, to take the part of him that went with his malice, and to fight for him, and then they two strike and kill the man that was by them assaulted: This is wilful murder in the first man which went with the malice prepenced to kill, and but manslaughter, and no murder in the other who went to take his friend's part, and had no malice prepenced to kill. As if the master upon malice prepenced doth lie in the way to assault and kill a man, and taketh some of his servants with him that he doth not acquaint with this malicious intention, and the master doth assault the same person who he did lie in weight for, and doth fight with him, and the servants do take their master's part, and also fight with the party assaulted, and they altogether do kill him; This is wilful murder in the master, and but manslaughter in the servants, for that in them there was no malice prepenced towards the party slain. But if the master had made his servants privy to his intention, and they had gone with him and killed the other, it should have been adjudged murder in the servants also. 27 If a man upon malice prepenced do lie in weight to kill an other man, Plo. Com. 101. and doth meet him, A man bearing malice to one doth kill an other. assail, and fight with him, & a third man being in the company of him that is assailed doth fight, and defend him. In this case if the first man that made the assault do kill the third man, who took part and defended the second man that was assailed, it is in him wilful murder, though at the first he did bear no malice to him that he killed, neither knew him. But when the first man did bear malice to the second man that he first assaulted, and meant to have killed him, and to have put his intended malicious purpose in execution against him, and slew one other who resisted his purpose: the law doth construe it that he carried a malicious and revenging mind against all those that did resist his wicked purpose. And therefore as he slew one in the defence of an other, so is his malicious and murdering mind, and intention expounded to be transferred from the one to the other: and he shallbe adjudged a murderer, as if he had killed the first man. And the same law is, if one man do lie in weight in a place to kill an other man, and a stranger doth come to the same place, and he that doth lie and wait to kill, mistaking the man, doth kill that stranger, thinking he had been the same person which he did mean to kill: This kill shallbe adjudged wilful murder, for it is grounded upon malice prepenced, though it were not executed upon him to whom he did bear the malice. And therefore it shallbe adjudged the like offence, as if he had slain the same person that he meant to have killed. And so it is, if a man upon malice prepenced do shoot at one man with intent to kill him, and his arrow or pellet doth kill an other man to whom he did bear no malice, this shallbe adjudged murder in him, for in his act doing he intended murder: and seeing he directed his arrow to kill one man, and that slew another, the offence shall be accounted in equal degree, as if had killed him whom he meant to have slain, for the end of the fact shall be judged by the beginning thereof, and the later part shall taste of the first, and the first part, which was the shooting of the arrow or pellet, was grounded upon malice prepenced, and a murdering mind, and so the offence in Law shall be judged wilful murder. Blow. come. 474 28 The husband did give to his wife a roasted apple, wherein he had put poison, with intent to poison and kill her; and the wife not knowing the intent of her husband, nor that the apple was poisoned, delivered the same apple in the presence of her husband to a young child of their own to eat, who did eat of it, and died thereof within few days after: Giving poison to one, & another taketh it, & dieth This was adjudged wilful murder in the husband, for that he delivered the poisoned apple, with intent to kill one person, and seeing by his act death did ensue, although it was to another person than he meant to kill, yet it shall be adjudged murder in him, for he was the original founder, and only cause of this death: and this murder should be unpunished, if he should not be punished therefore; for the wife which delivered the poisoned apple to her own child, could not be guilty of any offence, for that she was ignorant of the mischief pretended. But if one do lay ratsbane, or other venomed thing in a house or place, with intent to kill rats, mice, or other vermin, and a man or woman doth eat of it, and dieth thereof; this is no murder or other felony in him that laid it, for that he had no intent to hurt any man or woman. M. 2. El. Di. 186 29 An adulterer and a harlot being by him begotten with child, Two agreeing upon a murder, and one of them doth it. did agree, that after the woman's delivery, the child should be killed, whereupon the mother, after her delivery, persuaded the Midwife to kill the child, who did it accordingly, viz. she cut the throat of it: In this case the mother and midwife were adjudged principal murderers, and the adulterer, who was accessary before the birth of the child, and the murder done, was adjudged to continue accessary after the murder done, and to suffer death without the benefit of his Clergy. Fitz. Cor. 383 30 If a man intending the death of another, Meaning without act is not homicide. doth beat him so grievously that he doth leave him by all the beholder's judgement thought to be dead, and then doth fly away, and after the other doth revive, and live; this is not felony in him that did that violence, though it doth plainly appear that he had a meaning to kill him: for it is not felony, except the party stricken be indeed killed, and die within a year and a day after the stripes given. But on the other side, if one man do strike another, with intent only to beat him, yet if he die of this battery within a year and a day after, it is felony in him that did strike him. For though, as Bracton affirmeth, Act without meaning is homicide. the old Law of this Realm did hold, Quoth in maleficijs spectatur voluntas & non exitus, & nihil interest, utrùm quis occidat, an causam mortis praebeat: But now we say, Lex antiqua mutatur, and do affirm, Quod exitus in maleficijs spectatur, & non voluntas duntaxat. Co. l. 4. 40. 31 A man brought drink to another that was mingled with poison, Homicide by giving poisoned drink to another. and advised him to drink it, telling him that it would be a mean to procure him to get a child of his wife; by reason of which persuasion, he to whom that poisoned drink was brought, did receive it, & after drunk it in the absence of him who brought it unto him, and shortly after died: In this case he that brought the drink was adjudged a principal murderer, though he was not present at the time of the receipt of the drink: or otherwise he should have been guilty of that horrible offence, and yet have escaped unpunished, for there was none in this case to whom he could be accessary. And so note this for a special case where a felony is committed, and neither principal nor accessary be present at it. Many do attempt an unlawful act and one of them committeth homicide. 32 If several persons assemble together to do a disseisin, Fitz. Cor. 350. 11. H. 4. 13. to break a house, or commit any unlawful act, and of them killeth a man, he and all the other shallbe adjudged principal felons, because they all came to do an evil act, though not that act. As if they all had come to have killed or rob one man, and after they killed, or rob an other. Homicide by carrying abroad. 33 A man was indicted that he did feloniously carry his own father being sick against his will in a frosty and cold time from one town to an other, whereof he died; and this was adjudged felony in him: 2. Ed. 3. 18 for in this case the son had a meaning that his father's life should be shortened, and he brought to his death. A man dieth in the hands of a Physician or Surgeon. 34 If a physician are surgeon hath a man in his cure, Fit. cor. 163 who dieth being in his cure, or at any time after: this is not felony in the same physician or surgeon, because he did not any thing to his patient with a felonious intent, but against his will. And moreover it is not to be discerned whether the man came to his death by any wilful default in the said Physician, or Surgeon, or by his former infirmity, or other cause. Homicide upon the evil words of an other. 35 Anno. 3. Ed. 3. Itin. North: Fit. cor. 331 it was presented that through the evil words of a woman, two men did fall out, and fought, and one of them killed an other: and this was adjudged felony in the woman. But it must be intended that the woman by her words did persuade council, or advise them, or one of them to fight with the other, and so was accessary before the felony committed. Homicide by a frantic man. 36 A man that is frantic though he kill an other man, M. 21. H. 7. 13. Fitz. forf. 33 Fi. Dower 183. Fitz. N. b. 202. d Fitz. cor. 193 351. Co. l. 4. 42 26. Ass. p. 27 Blow. come. 19 Co. l. 4. 125 cannot commit murder, for he hath not a felonious intent, nor doth carry within him malice prepenced to any, neither doth know what he doth. And therefore he is not to be arraigned for the kill of a man in his Lunacy, though after he doth recover his memory, neither shall he be enforced to sue for his pardon. And the same law is of a man that is deaf and dumb, who can not commit murder, for he hath not a felonious intent, neither doth he know what he doth. And therefore if he kill a man he shall not be arraigned thereof, nor driven to sue for his pardon. But if a man that is drunk, do in his drunkenness kill an other man, it is felony, and he shallbe hanged therefore, for it is voluntary ignorance in him to be drunk. Homicide by an Infant. 37 An Infant of the age of twelve years, 3. H. 7. 2. & 12. 12. Aff. p. 30 or above may commit murder, and so may an Infant of the age of eight, or nine years if it may appear (by hiding of the person slain, or by any other act) that the abundance of his malice doth exceed the tenderness of his years. But if an enfant of tender and younger years do kill a man, this is no felony, because he wanteth discretion and understanding, Pl. come. 19 and the Law will impute it to the ignorance which cometh to him by nature. Fit. cor. 311. 38 If a man hath a beast that is accustomed to do hurt, Homicide by a beast. and the owner knowing thereof, doth not tie him, or otherwise keep him fast shut up, but suffer him to go at liberty, and after that beast killeth a man: this is felony in the owner, for by his sufferance of the beast to go at liberty, the owner doth seem to have a will to kill: or that he used this beast as an instrument wherewith to kill. And this was a Law ordained by Alured Alured. king of the West Saxons. Fit. cor. 263 22. Ass. p. 94 39 To make it Homicide, it is requisite that the party killed be in Esse, In homicide the party killed must be in Esse. viz. in rerum natura: for if a man kill an infant in his mother's womb, this is no felony, neither shall he forfeit any thing for it, and that for two causes, the one, because the thing had no name of Baptism, the other, for that it is hard to judge if the infant died of that battery or not, or upon some other cause. Wherefore a man being indicted in the King's Bench, for that he did beat a woman great with child with two children, Ann 3. Ass. pl. 2. M. 1. E. 3. 24 so that one of the children died presently, and the other was borne, baptised, and had a name of Baptism given, and within two days after that child also died by the hurt it received by the foresaid beating: this was adjudged no felony, for the reasons aforesaid: But if a woman being delivered of a child, doth presently kill it before it be baptised, Fit. cor. 418 M. 2. El. Di. 186. this is felony in her, though the child had no name of Baptism, because the child was in rerum natura before it was killed, and it is known by whom, and what means that child came to his death. 40 If a man do beat, or otherwise hurt another, whereby he dieth, In homicide, the p●rty must die within a year and a day. it is requisite to make it Homicide, Fit. cor. 303 that the party do die within a year and a day next after the battery, or hurt done: Or else the Law will not adjudge it homicide, or that the party stricken did die of that beating or hurt. And the same Law is, if poison be given by one man to an other, whereby he dieth, the Law will not construe it to be murder, unless the party do die within a year and a day next after the poison received. 41 As a man may commit felony in killing of an other, Homicide by felo de se. so he may commit felony in killing of himself, and then the Law doth aptly call him felo de se: for though Homicide is most fitly and commonly termed where one man doth kill an other, yet the same phrase may in good congruity of speech be well applied to one that killeth himself, for there is an Agent and a Patient, a killer, and one slain, and both in one and the self same person. And though there may be many causes why a man may kill himself, as there be many and several humours, opinions, distractions, and fantasies in men, yet most commonly he becometh felo de se, Bracton de coro. ca 31. & feloniously killeth himself, who being guilty of any grievous crime is apprehended for the same, or vehemently suspected, or accused thereof, or being weary of his life, for extremity of pain or poverty, as being not able to kill his enemy, or to be revenged of him according to his desire, doth therefore kill himself, etc. which fellow of himself shall forfeit to the King, his goods, chattels, real and personal, Blow come. 260. 261. Fitz. Cor. 362. 301. 426. and debts, but not his lands: for the Law doth so greatly favour inheritance, that it shall not escheat without attainder indeed: Neither shall his wife forfeit her dower, nor his blood shall be corrupt. And the reason why the King shall have the goods, chattels, and debts of felo de se forfeited unto him, The cause of the forfeiture of felo de se. is, for that the King hath lost a subject, and the same subject hath broken the King's peace, in killing of himself, and given an evil example to his people, and hath fled from, and escaped the trial of the Law, and he himself was the cause why he could not be tried by the Law. Co. l. 5. 110. But the goods of felo de se be not forfeited until his death be presented and found of Record: And therefore those goods cannot be claimed by prescription. And if felo de se be cast into the Sea, or a great River, or so secretly buried that the Coroner cannot have the sight of his body, and by thgt means can not inquire thereof: Then all such justices of Peace, and Oier and Determiner which have authority to inquire of felonies, shall inquire thereof. An Enfant or Lunatic killeth himself. 42 If an Enfant, furious, or frantic man do drown, Bracton de coron. ca 31 21. H. 7. 31 Fitz. cor. 244. Co. li. 1. 99 Blow. come. 260. or otherwise kill himself, he shall not forfeit his goods, etc. because he wanteth reason and judgement. And if a man that is lunatic do strike himself with his knife, or other weapon, and after doth recover, and notwithstanding dieth of the same stroke that himself did give within one year and a day after the stroke given, yet he shall not be adjudged felo de se, nor forfeit his goods, or any thing therefore: for the Law doth respect what he was at the beginning when he gave himself the stroke, which was the cause of his death, and not what he was when he died. For if a man that is frantic from day to day do kill himself, he shall not forfeit his goods. But the Law is otherwise if a man do kill himself who is frantic but at certain times, Fitz. coron 324. viz. per lucida interualla. Killing of himself in the stead of an other. 43 If a man do strike an other to the ground, and then draweth his knife to kill him, and the defendant lying upon the ground draweth his knife to defend himself, H. 44. Ed. 3 44. and the assailant is so hasty to kill the defendant that he falleth upon the defendants knife, and so is slain: In this case the assailant is felo de se: for he had an intention to kill, though not himself, yet the defendant. And so as the death intended by him, was by his haste transferred from the defendant to himself, so is the name of a murderer transfered to felo de se. 44 If a lease of lands be made to the husband, Blow. come. 258. and the wife for the term of certain years, and the husband goeth into the water and drowneth himself in this case, Forfeiture of lease made to felo de se and his wife. after the death of the husband shallbe found by the Coroner upon the sight of the dead body, and the title of this land shallbe likewise found by an inquisition taken before commissioners authorised thereunto, the foresaid lease and whole term of years shallbe forfeited to the King, and the wife shall have no part thereof: for this forfeiture shall have relation to the husbands going into the water, whereupon the drowning did ensue, at the which going into the water he had the whole interest of the lease in him so to dispose, that he might have aliened the whole interest thereof from his wife: and this going into the water, whereupon this drowning and death did ensue, was a forfeiture or alienation in law of the term, and was as much in construction of the law, as if he had then aliened the whole term to the King. And the finding of the death of this man before the Coroner, upon the sight of the body, and the finding of the title of this lease before Commissioners, be equivolent to a judgement that might have been given against him in his life time, for murder of another person: And if this man had been outlawed, or otherwise attainted of Felony in his life time, this lease should have been forfeited to the King, and the wife should have had no part thereof. P. 16. E. 4. 7 P. 9 Eliz. Dyer 262. 45 If one which is felo de se, hath a debt due to him upon a contract, No forfeiture of a debt upon a simple contract. and not by specialty, he shall not forfeit the debt to the King amongst his other goods and chattels, for that the said debtor shall be rebutted of his law against the King. Pl. Com. 260. 262. 46 If a villeine do give himself a deadly wound, A villeine felo de se, and then his Lord seizeth his goods and after the Lord of the same villeine doth seize his goods, and then this villeine doth die within a year and a day after the wound given, and so becometh felo de se, and after the whole matter is found before the Coroner, those goods of the villains shall be forfeit to the King, and the King shall have them out of the Lords possession: for the forfeiture shall have relation to the wound which the villeine gave himself, and that was before the Lord's seizure of his goods. For if a man doth give himself a deadly wound, and dieth thereof within a year and a day after, all the goods, cattles, and debts which he had at the time of the blow given, or at any time after, shall be forfeited to the King, and in his life time he hath no authority to dispose of them after the wound was given. 4. & 5. P. & M. Dy. 160 47 A man was bound with two Sureties, One mortgaged his goods and then became felo de se. for the payment of twenty pounds at two several days, and the principal debtor, for the security of his Sureties, by his Indenture did sell unto his said two Sureties, twenty oxen for twenty pounds, with a Proviso in the Indenture, That if he did discharge or save them harmless of the said Obligation of twenty pounds, that then the said sale of the twenty oxen should be void. And it was agreed between them, that the principal debtor should have the occupation and use of the said twenty oxen, at the will of the said Sureties, and to be used as his own. And after one day of payment due to the Obligée, and no money paid by the seller or principal debtor, and before the second payment was due, the seller killed himself, and became felo de se, having those twenty Oxen in his possession, and the Sureties seized the beasts as their own: And notwithstanding the property was in them, by the not performance of the condition, yet it was adjudged that the Aulmoner should have the beasts, or the money which they were sold for, and then he should discharge the Sureties against the Creditor. And so the Aulmoner was awarded to have in these beasts the best estate of the seller, and the same that the Debtor might have had, if he had paid the debt at the due times which were agreed upon. Homicide by casualty. 48 Though Homicide is most usually known and termed by the kill of one man, or woman, or more, by another man or woman, or more, yet hominis cedium, whereof the same word Homicide is derived, may be done by some other casualty; though when a man is slain by some other mischance than by the hand or means of another man, as by the fall of a pit of earth, or stone, or a tree, or killed by a Bear, or Bull, or such like, it is not aptly nor usually said, that Homicide is committed, but that such a man is slain. 49 When a man cometh to his death by the means of any thing that falleth upon him, or by the means of a hurt which himself receiveth in falling from some other thing, without the procurement of another man, that thing which is the cause of his death, shall be forfeited to the King, taken for a Deodand, A Deodand. and distributed in alms. And it is not material whether the thing that killed the man was moving or not at that time when it killed him: for though it were not moving, yet it shall be taken and accounted as a Deodand, as well as if it were moving, Fitz. Cor. 403. M. 6. E. 6. Dyer 77. because all things moving with the thing which was the cause of the man's death, shall be forfeited, in like sort as the principal thing, according to the old rule, Omnia quae movent ad mortem sunt Deodanda. And yet those goods which be forfeited as Deodand, be not forfeited until the matter be found of Record, Co. li. 5. 110 and therefore they cannot be claimed by prescription. And the same jury which doth find the death of the man, must also find and appraise the Deodand. A tree and the bough of another tree do kill a man. 50 If a man do fell a tree, Fitz. Cor. 398. and that tree falleth upon the bough of another tree, which bough falleth upon a man and killeth him: in this case both the bough that killed the man, and also the tree which did fall upon that bough, shall be Deodand: for they both did move unto, and were the cause of his death. Falling off a cart, or from a cart. 51 If a man do ride in a cart, and the same cart falleth upon him, Fitz. Cor. 388. and killeth him, as well the same cart as the horses that drew the cart, shall be Deodands. And in like sort, if a man be in a cart, and by the stirring of the horses which drew the cart, or any of them, he is cast out of the cart, and dieth thereof, Fitz. Cor. 397. Pl. Com. 323. as well the horses which drew the cart, as also the cart, shall be Deodands: for the horses and cart being fastened together, be all the cause of the man's death. Falling from a cart laden. 52 If a man fall from a cart laden with Corn, Hay, Wood, Fitz. Cor. 326. etc. and the wheel of the cart breaketh his neck, back, or etc. whereby he dieth, as well the Corn, Falling from cart that is in lading. Hay, Wood, or &c. as the cart, shallbe Deodands. But if a man do fall from a cart as he is lading of Corn, Hay, Wood, Fi. Cor. 326 etc. by the stirring of the horses, and thereby breaketh his neck, back, or etc. whereby he dieth, the cart and horses shallbe Deodands, but not the corn etc. for that the corn etc. were not the cause of his death. If a man that doth drive a cart, do clime upon one of the wheels of the cart, Fitz. Cor. 409. to gather apples, plums, or etc. and do fall from that wheel, and breaketh his neck, back, or etc. whereof he dieth, if it be proved that neither the horses nor cart did stir, than the wheel of the cart only shall be a Deodand, and not the horses, nor the residue of the cart, for that none of them did move to the carters death. Fitz. Cor. 401. 53 If a man ride into the water, to water a horse, Falling from a horse into the water. A horse killeth a man. From what time a Deodand shall have relation. and then falleth from the horse, and is drowned, the horse shallbe a Deodand. And if a horse, bull, boar, etc. do strike a man, Fitz. Cor. 298. Pl. Com. 260. and after he dieth of that blow, the horse, bull, boar, &c. shallbe a Deodand. And if the owner of the horse that did give the same mortal blow, do alien the horse to another between the time of the stroke given, and the death of the man, yet the King may seize that horse as forf. for a Deodand: for the forfeiture shall have relation from the stroke given, which was the cause of the man's death. Fitz. Cor. 405. 54 If a beam whereupon a bell in a Church doth hang, A beam of a bell of a church. do fall upon a man, and kill him, as well the beam as the bell shall be Deodands, notwithstanding that they were before the goods of the Church, and in a sort Deo datum. Fitz. Forf. 20. But if a man be digging in a pit, mine, or quarry of stone, marl, gravel, sand, coal, or turf, and a great heap of earth do fall upon him, and kill him, the same heap of earth only shall be forf. to the K. and not the whole pit, mine, or quarry. Fi. Cor. 389 55 If a man do fall from a bridge into the water, The wheel of a mill. and is carried by the force of the stream under the wheel of a mill, and thereby is slain, the wheel of the mill only shallbe a Deodand. Kel. fol. 68 If timber, boards, wainscot, or other goods, do fall upon a man, and oppress him to death, the same shallbe a Deodand. Fitz. Cor. 314. 56 If a man falleth from his horse, and breaketh his head, neck, back, Falling from a horse against a trunk. etc. against a trunk, piece of timber, or any other thing, whereby he dieth, the horse only shall be a Deodand, and not the trunk, timber, or &c. because it did not move. Fitz. Cor. 348. 57 If a man fall from a rick or hovel of corn, hay, Falling from a hovel or rick or etc. whereby he is killed, the same hovel or rick shall be forfeit to the king as a Deodand. And so Deodands may be of some things that a man doth move unto, or from them, as well as of those things which move to a man to kill him. 58 If a man do fall from a ship that is sailing, and die thereof, Falling from a ship. neither the merchandise, nor any other thing in the ship is the cause of his death, but only the ship, Bracton. Britton. and therefore the ship only shallbe a Deodand. And that ship must be upon the fresh water, for if it be upon the salt water, and one do fall from it, than it shallbe no Deodand. Within the age of xiv. years. 59 If he that doth come to his death by any casualty, Fitz. Cor. 389. be within the age of xiv. years, nothing shallbe forf. to the king as a Deodand for him, for the form of the Presentment is A. filius B. ultra aetatem quatuor decem annorum: sed quaere. The Sheriff shallbe charged with the Deodand. 60 The Sheriff of that county where a Deodand shall be found to be, Fitz. Cor. 298. shall be charged with the price of every Deodand, and shall answer for it, and he shall levy the value thereof of the same town where it falleth, notwithstanding it was not committed to them to keep: And therefore when such a mischance is found, the presenters thereof must also find & appraise the Deodand. A man found dead in the field. 61 If a man be found dead in the field, his apparel, Fitz. Indict. 27. and the money which he hath about him, shallbe given to a Church, and shallbe distributed to the poor etc. and it shall not be taken as a Deodand, for it doth vary from the nature of a Deodand, being no cause of his death. But that distribution shall be in case where the same man is unknown, for if he be known, his money, apparel, and other things about him, shallbe delivered to his executors, or administrators, or to the Ordinary. ❧ Felonies by the Common Law: Larcenie, Theft. 1 LArcenie is a fraudulent taking away of another man's goods, above the value of twelve pence, What is Larcenie. with intent to steal them, without the knowledge of him whose the goods be: 17. H. 8. 22. For if the goods do not exceed the value of twelve pence, it is not felony, but petit Larcenie, Fitz. Cor. 430. 451. 27. H. 8. 22. for the which the offendor shallbe imprisoned, Petit larcenie or otherwise punished by the discretion of the justices before whom he is arraigned, and also shall forfeit his goods, but he shall not be put to death. And this intent of stealing to make it Larcenie, The intent of the stealing must be at the time of the receipt of the goods. aught to be at the time when the party doth first come to the possession of the goods, for if the party doth come lawfully to the possession of the goods, though he hath an evil intent after, to convert them to his own use, it is not felony in him: As if a man doth deliver goods to another, who after doth convert them to his own use, it is not felony in him, 13. Ed. 4. 9 for no felony is intended to be done but with violence, and vi & armis, & contra pacem, which cannot be supposed in this case, seeing they were delivered unto him by the owner of them, and so he came lawfully to them. 2 If any person at several times do steal several parcels of goods, which parcels being put together, Fitz. Cor. 415. do amount above the value of xii. d. it is felony, Stealing goods at several times, above the value of xii. d. Felony in several persons and the offendor shall be hanged. And if two, three, or more together, do steal goods to the value of twelve pence, Fitz. Cor. 404. this is felony in them all, for the felony in them is several, though the stealing be joint. Fitz. Cor. 451. 3 If any person be indicted for stealing of goods above the value of twelve pence, and arraigned thereupon, The jury may find an under value of the goods. yet the jury that passeth upon his arraignment, may give a special verdict, and say, that the goods did not exceed the value of eight pence, 18. Ass. p. 14 22. Ass. p. 39 or ten pence, etc. and then that offence shall be taken for petit Larcenie only, and the offendor shall be punished by imprisonment or etc. according to the justices discretion. Taking away a Taverners plate. 4 If a Taverner do set a piece of silver plate before his guest to drink in, and that guest carrieth away the piece of plate, this is felony in him: P. 13. Ed. 4. 9 for he had not the possession of the same piece of plate, but the use thereof only to drink in for that time: And the offendor did fraudulently take the plate away, with intent to steal it, without the knowledge of the owner thereof. A man being lodged in an Inn, did rise in the night, 27. Ass. p. 39 and carry linen and other goods of the Inn keepers, out of his chamber where he was lodged, into the hall, with intent to steal them, and then went to the stable to seek his horse, and the Ostler took him therewith, this was adjudged felony, and yet the goods were not carried out of the house of the owner of them, but taken out of the place where he had assigned them to be. And so it is if a man do take up another man's horse in his close, with intent to steal him, and the owner, or some other, doth apprehend the party with the horse, before he is gone out of the close, this is felony. A servant having the use of his master's goods, doth steal them. 5 If a man commit money to his servant to keep, or plate to his Butler, 21. H. 4. 14. 3. H. 7. 12. 13. Ed. 4. 10. or vessel to his Cook, to be used in his house, or a horse to his Horsekéeper, to be kept and dressed, or sheep to his Shepherd, to be followed and pastured, and the servant who hath the same thus committed unto him, doth go away with them, this is felony by the common law in that servant: for these goods were always in the Master's possession, and kept and used to the Master's benefit. But if a man deliver a horse to his servant, to ride to the Market, or money to carry to a Fair, or to pay to another, or to buy cattle, or other things, and the servant doth go away therewith, this is not felony: for the Master delivered the same to his servant, and therefore he came lawfully by the possession of it. See Felony by stat. 12. One having the key of a chamber, doth steal the goods. 6 If a man deliver to his servant, or another, the key of his chamber door, 13. Ed. 4. 9 and he to whom the key is delivered taketh away the goods in the chamber, above the value of xii. d. this is felony in him: for the goods were not delivered, but did always remain in the possession of the owner of them. A bargain with a carrier and not a delivery of goods. 7 If a man do bargain with a carrier, or other, 13. Ed. 4. 9 to carry certain bales of wares, or other goods to a place prefixed, and he taketh them, and carrieth them to another place, and openeth the bales, and taketh forth the goods within them feloniously, and converteth them to his own use, this is felony in him: for that this is more than a delivery, viz. it is a bargain, so that he receiveth them by the bargain agreed upon, and not by the delivery, the which bargain he hath not performed, but hath taken the goods of his own wrong: and in this case the property of these goods did always remain in the first owner or deliverer. A carrier stealeth the goods committed. 8 If one man do deliver goods to another to carry to a place appointed, 13. Ed. 4. 10. and he doth carry them thither, and then he doth take and steal them away, this is felony in him: for the privity of the bailment, and the carriers possession was determined, when he had carried them to the place appointed, and therefore what he did after, was feloniously done, and of his own wrong. 13. E. 4. 9 9 If one man do deliver a Tun of Wine to another, A Carrier stealing part of his charge. to carry to a place agreed upon, if the Carrier sell or give away the same whole Tun of wine, it is no Felony, for it was delivered unto him: but if he take out twenty gallons, or other quantity above the value of twelve pence, or etc. then it is Felony. 7. H. 6. 45 13. E. 4 10 5. H. 7. 18 10 If a man deliver goods to another man to keep, Felony for taking of his own goods. & after the owner who delivered them, doth take them away feloniously, to the intent to recover damages against the party to whom they were delivered by an action of Detinue, this is Felony in him that delivered those goods, & yet the property of the goods was always in him that did steal them. 7. Ed. 4. 14 9 Ed. 4. 33 11 It is felony to steal the goods of a Church or Chapel, The goods of a Church or Corporation. or the goods of a Dean & Chapter, College, or other corporation, or the goods of a corporation during the time of the vacation of the governor thereof: and the indictment shallbe, Quod bona domus & ecclesiae, etc. 27. Ass. p. 40 12 If a wife do steal goods by the compulsion of her husband, In what case a married wife may commit felony, in what not. this is not felony in her: and likewise it is, if she do it by the commandment of her husband: Fit. cor. 160 and if the husband and wife together do steal goods, this shallbe taken the only act of the husband, and not felony in the wife: But a woman alone by herself, her husband not being privy thereunto, may commit felony, and may be principal or accessary: Fit. cor. 383 as if a married wife steal goods, or receive Felons or stolen goods into her house, knowing them so to be, or lock them up in her chest or closet, her husband not knowing thereof: Canuti lex 74. Or if her husband as soon as he knoweth thereof, refuseth her company, and his own house, and maketh his abode elsewhere, in which case the wives offence shall not be imputed to her husband; or otherwise the law will impute the fault to him, and not to her: for if the husband do commit felony, Britton. and the wife knowing thereof, do receive him, and keep him company, Bracton, de coron, c. 32 she is not thereby accessary to the felony: for a wife cannot be accessary to her husband, for that by the law of God she ought not to discover him or his counsel: In● leges 58 which law was first established by Inas, Inae lex. King of the West Saxons. As the husband & wife stealing together the goods of another, the whole offence shallbe imputed to the husband, & it shall be adjudged no felony in the wife: so if the wife do take the goods of her husband, the law will not construe them to be stolen, Fit. cor. 455 Bro. cor. 242 nor charge her with felony therefore: A woman taking her husband's goods. for at the time of the solemnisation of their marriage in the face of the Church, her husband endowed her with all his worldly goods, & so gave her a kind of interest in them. And if the wife do take her husband's goods, and give them to another, this is not felony in him to whom she did give them: but if a man do take away another man's wife and the husband's goods against the husband's will, this is felony, S. Felony by stat. 31. That it is felony in the wife to send any money, victual, etc. to her husband, being assembled with others in rebellious manner contrary to the stat. of An. 1. M. 12. Fi. N. B. 202 Bracton. 35. H. 6. 11 13 If an infant above the age of xii. In what case an infant may commit felony. years do take any goods of another man's, above the value of xii. d. with intent to steal them, it is felony in him: and some do affirm, that if an infant of any age do take the goods of another, and that the justices before whom he is arraigned do think that he did it with a felonious intent, and had discretion to understand what he did, and the offence, and the peril thereof, that then it is felony in him. And yet Inas king of the West Saxons ordained, Lex 7. That a child of ten years of age should be condemned for Felony. An Idiot or Lunatic cannot commit Felony But an Idiot or Lunatic cannot commit Felony by the stealing of the goods of another, Co. li. 4. 124 for that neither of them doth know what he doth. Burning of a house or barn Felony. 14 Burning of a house willingly, and feloniously done, St. 3. B. 3. 15. is Felony by the common Law. For the statute of West. 1. hath ordained, That they which be taken for the burning of a house feloniously done, be not replevisable. 11. H. 7. 1 And if one do burn a barn feloniously in the night, which is adjoining to a dwelling house, it is felony by the common law. Felony in indictors to discover their counsel. 15 If an indictor, which (with others) hath indicted other persons of Felony, do therein discover the king's counsel, contrary to his oath, 27. Ass. p. 63 Fit. cor. 272 in publishing to others, that he and his companions have indicted such and such persons, this discovery is felony. S. Treason 9 Rescuing of a prisoner felony 16 If an offendor be arrested or imprisoned for felony, or attainted of felony, 1. H. 7. 6 and a stranger will take him out of the possession of him that did arrest him or keep him in prison, or will take a fellow attainted and condemned to die out of the possession of the Sheriff, or his Officers, whereby he escapeth, this rescous is felony, as well in him that made the rescous, as in him that is rescued. And if a stranger do rescue one that is indicted of felony, he may be indicted and arraigned thereof presently, before the principal felony be tried, 1. E. 3. 17. & if he be found guilty, he shallbe perpetually imprisoned, or otherwise punished at the K. pleasure, but shall not be hanged, because the principal fellow is not tried. S. Breaking of Prison 5. 10 Wilful escape is felony. 17 When a man doth arrest another for felony, or any other crime, & after let him go at liberty whither he will, 9 H. 4. 1 this letting him at liberty is a wilful escape: and if the arrest of him that escaped, was for felony, it shall be adjudged felony in him that did let him escape: and if it were for treason, than it shall be adjudged treason: and if but for trespass, it shallbe adjudged trespass. Goods stolen from him that hath the custody of them. 18 If a man do deliver cloth to a tailor to make him a garment, Kel. fol. 70. & a fellow doth steal that cloth out of the possession of the tailor, the offendor may be indicted for the stealing of that cloth of the goods of the tailor, for the tailor had possession of the cloth, and property also against all others, saving against him that delivered it unto him. Goods stolen from a fellow 19 If a Felon do steal another man's horse, beast, or other goods, 13. Ed. 4. 3. 4. H. 7. 5 & another Felon doth steal the same from him, the owner of the same horse, beast, or other goods, may have an appeal against the first or second Felon at his own choice, for the property of the goods did always remain in him: for no fellow can by the Law claim property in any stolen goods. 22. Ass. p. 91 20 Larceny cannot be committed by taking of savage beasts found in their wildness, as Dear, Pigeons, Hawks, Of what things larceny may be committed, of what not. nor by taking of doves found out of a dovecoat, nor by taking of fish in a river: for such taking is not the stealing of the goods of another, seeing that they be no man's goods, neither can any person claim property in them: neither can felony be committed in the taking of Apes, Hounds, Thrushes, Squirrels, or such domestical things, kept only for pleasure, and that but of some special persons, and profitable to none. Neither is the taking of Pheasants, Partridges, or Coneys, being fowls, and things of warrein felony. 18. Ed. 4. 8. But it is felony, if a man do take out of another man's dovecoat, young pigeons, which can neither go nor fly, for that the property of them is always in him who is owner of the dovecoat. And likewise it is felony to take young Goshawks, or young Herons breeding in a park, or several ground, which can neither go nor fly out of their nests: Or to take fish out of a pond, or trunk, or to take Swans, Peacocks, Turkeys, Cayons, Geese, or Ducks: Or to take a Stag, 18. H. 8. 2 Hind, Bucke, or Do which is marked, and domestical, and made tame by the owner's diligence. St. 3. E. 1. 20. And by the stat. of West. 1. it is felony to take a tame beast, or other thing in a park, by manner of robbery. And it is felony to kill sheep, and take their skins, or to pull wool from shéeps backs. So that in all the cases aforesaid, the thing so taken or stolen do exceed the value of twelve pence. 12. Ass. p. 32 18. H. 8. 2 Fit. cor. 256 21 The taking away of another man's goods, to make it felony, Felony must be of personal goods, & not of things real. must be of personal things, for if it be of things real, it is not felony: As if one cut down a tree of another man's, and carrieth it away, or cutteth the corn, or pulleth the apples of another, and carrieth them away, or hideth them, it is no felony, because the tree etc. was parcel of the owner's inheritance, and not of his personal goods. But it is otherwise, if the owner do cut down the tree, corn, etc. and another carrieth it away, than he committeth felony. The lead of a house. And likewise if one do take and carry away the lead which covereth a church, or any man's house, it is no felony, for it is parcel of the church, or house, and of the inheritance, and no personal goods. And so it is if an Indenture or deed poll, A lease for years purporting a lease for term of years, or a ward be taken, and carried away, it is no felony: for a lease for the term of years, is a chattel real, and so is a ward, A ward. and not a chattel personal. 10. E. 4. 15. And the same law is, if a writing, or box of writings, Writings. for i● it be imbecile & carried away, it is no felony, because they cannot be valued: and moreover, for that they concern inheritance, chattels reals, or things in action: & the taking and carrying away of Treasure trove, Wreck of the sea, Treasure trove. Wreck of the sea. Waife. Stray. Waife or Stray, is not felony, for that the owner of them is unknown, and it is uncertain whose they be, though Bracton termeth the taking away of Treasure trove, Bracton, de coron, c. 3 Quasi crimen furti. But the offendor who taketh them away shallbe punished by fine and imprisonment: and if a lord do secretly take away his villains goods, 22. Ass. p. 99 Fit. cor. 265 this is no felony in him, for he may se●se and take them away all openly when he will. 22 If an offence be made felony by statute, A felony made by statute, and after repealed. and then one doth commit the same offence, Bro. cor. 202 and before he is arraigned thereof, that statute is repealed, by the repeal of the stat. the felony is extinct, and the offendor shall not be arraigned thereof, nor punished by force of that statute for that fact. Thiefe-boot. 23 Thiefe-boot is not when a man doth take his own goods again, 42. Ass. p. 5 which were feloniously stolen from him: but Thiefe-boot is properly when a man doth take goods of a fellow to favour him, Fit. cor. 353 the punishment of which Thiefe-boot is not as for a felony committed, but only to be ransomed and imprisoned. Felony committed in one king's reign, punished in another. 24 A man committeth Felony in the time of one king, 1. Ed. 3. 3 Bro. Cor. 177. may be arraigned for it after in the reign and time of another king: for the same Law and form of government, to the which the offence is done, remaineth, though the king dieth. Stolen goods carried into several counties 25 If a Felon steal a Horse, Beast, Sheep, or other goods in one county, Bro. cor. 170 4. H. 7. 5 7. H. 4. 44 and doth carry them into another county, it is felony in every county whether he doth carry or drive those goods: and the offendor may be indicted or appealed in any of those counties, be arraigned, and have his judgement there. And if a fellow do steal goods, commit murder, or do any other felony in one county, and then fly into another county, and is taken there, 13. Ed. 4. 9 he shallbe imprisoned in the jail of the county where he is taken, In what jail a fellow shallbe imprisoned. and after shall be removed by the kings Writ into the jail of the county where he committed the felony. Breaking a house to take a fellow. 26 A man may break a house to apprehend a fellow, 13. E. 4. 9 or him that is suspected of felony, for it is for the Commonwealth: and the king hath a kind of interest in felony, viz. to cause it to be punished: and where the king hath an interest, that writ or act is a Non omittas propter aliquam libertatem: and so the liberty of a house will not defend him who hath committed, or is suspected to have committed felony against the K. But if it were for debt, or trespass, it were otherwise, for that is only the interest of one particular person. What is Robbery. 27 Robbery in Latin called Rapina, is in his natural signification, when one man taketh any thing from the person of another against his will feloniously, although the thing taken be but to the value of a penny, 22. Ass. p. 39 Fit. cor. 115 for the which the offendor shallbe hanged. And yet in some case it may be robbery, notwithstanding the party doth not take it from the person of the owner. As if a fellow do take any of the goods of another openly in the place where the owner is present, against his will, this is robbery, though the offendor do not take it from the person of the owner: for he doth it with that violent force, that the owner dareth not, Robbery by threatening or is not able to resist him. As if one do threaten another presently to deliver his purse, or otherwise that he will kill him, by force of which threats he doth deliver his purse, this is robbery, as well as if the fellow had taken the purse from the person of the owner by violence, or strong hand: Or if one or more do take up a horse out of the pasture of the owner, or drive cattle out of his ground, the owner standing by and looking on the Felon at the same time, Taking a man's money, but not putting him in fear. this is robbery, so that the fellow doth make an assault upon the owner, or do put him in fear. But if a fellow do take money from the person of a man in the high way, and not put his person in fear, it is no robbery, 5. El. Dyer 224. but only felony, for the which the offendor shall have his clergy. 44. E. 3. 14 4. H. 4. 3 28 If two, three, or more, do by force take a man, Robbery by taking an oath to bring money. and by threats compel him to swear to bring them a certain sum of money, menacing him, that they will kill him if he do it not, by force whereof he doth bring them the same sum of money, this is robbery, for that he did first swear, and after bring the money against his will: and yet by this enforced oath he was not bound to bring them the said money, for that the oath was taken for fear of death, and so against his will. And likewise, Robbery in taking money given. if felons come to a man's house in the night to rob him, and the possessor of the house fearing that they will enter his house and rob him, doth cast out unto them money, or plate, which the felons do take, and then depart, this is robbery, for it is in construction of the law taken from the person of a man, and for fear. 9 E. 4. 26. 29 If one lie in the high way to rob passengers, Robbery in will, but not in deed. and draweth his sword against a man that traveleth the same way, and commandeth him to deliver his purse, whereupon the same party encountereth him, & is too strong for him, and apprehendeth him, or levieth Hue and Cry, and the offendor is thereby taken, yet this is no Robbery, nor Felony, for there was no act done, though there was an intent and will to rob, Quia voluntas non reputabitur pro facto. 30 Burglary is, What is Burglary when one or more persons do in the time of peace break a house, a Church, a Wall, a Tower, or Gatehouse in the night, with a felonious intent to rob, kill a man, or commit some other Felony, for the which Burglary the offendor shallbe hanged, Fit. cor. 264 22. Ass. p. 95 though he take nothing away. But that breaking of the house must be to commit some Felony: For if the offendor be indicted for the breaking of a house to beat some person, that is but Trespass, 13. H. 4. 8 but if it be to kill another, than it is Felony. And if a man be indicted for the breaking of a Close, to kill or rob another, it is not Burglary. 1. M. Dy. 99 31 If a man do break a house, and do not enter into it, Breaking a house, but not entering. than it is no Burglary: for a man was indicted, Quod burglaritèr fregit ecclesiam in nocte & intravit, ad depraedandum bona parochianorum in eadem existentur sed nihil abstulit: and this was adjudged Burglary, for that the party indicted did enter. 32 Burglary cannot be committed in the day, but in the night: No Burglary in the day. for all the indictments of Burglary be Noctantèr fregit: St. 39 El. 15. for though by the statute of 39 Eliz. the benefit of Clergy is taken away from any person, convicted for the felonious taking away in the day time of any money or goods, of the value of five shillings, or upwards, in any dwelling house or outhouse, although no person shallbe in the same at the time of the said felony committed, and so that offenceis made as penal as Burglary, by the loss of the benefit of Clergy, yet is it not Burglary, for it may be committed in the day time, & the penalty of losing of his Clergy is not inflicted, unless the money or goods taken away be of the value of five shillings, or upwards. Breaking a dwelling house where no person is 33 If a man hath a mansion house, Co. li. 4. 40. and he and his family doth upon some cause go forth of the house, and in the mean time one doth come, and break the house in the night, to commit felony, this is Burglary: For although the owner, nor any of his family were in the house, yet it is his mansion house: for the words of an appeal or indictment of Burglary be, Domum mansionalem ipsius A. B. fregit. And in like sort, if a man have two houses, and doth inhabit sometime in one of them, and some other time in another, and hath a family or servants in them both, and in the night, when the servants be out of the house, felons do break the house, this is Burglary, for that the house is broken. ❧ Felonies by Statute. ANd now having expressed which be felonies by the common Law, it resteth that I declare which be felonies by Statute, with the reasons and causes why the same statutes were made, so far as I may be warranted by the same statutes. And as in Treasons I began with those Treasons which did concern the K. and his chief magistrates of justice: So in reporting of such laws and statutes as have been made for the supply of some defects at the common Law, I will begin with a statute which endeavoureth to restrain such as practise or confederate to destroy the king, or his chief officers attending on his person or estate. 1 For as much as by quarrels made to such as have been in great authority, office, and of counsel with the kings of this Realm, hath ensued the destruction of the kings, and thereby the undoing of this Realm: so as it hath appeared evidently, when compassing of the death of such as were of the kings true subjects was had, the destruction of the prince was imagined thereby, and for the most part it hath grown, and been occasion by envy and malice of the kings own household servants. And for that by the laws of this land, if actual deeds were not had, there was no remedy for such false compassings, imaginations, and confederacies had against any lord, or any of the king's Council, or any of the kings great Officers in his household, or Steward, Treasurer, Controller, and so great inconveniences did ensue, because such ungodly demeanour was not straightly punished, before that an actual deed was done: for the remedy whereof, by a statute made An. 3. H. 7. 14. Conspiring to destroy the king, or any lord etc. it was ordained, St. 3. H. 7. 14. That the Steward, Treasurer, and Controller of the king's house for the time being, or one of them, shall have full authority and power to inquire by xii. sad men and discreet persons of the Check Roll of the kings honourable household, if any servant, admitted to be his servant sworn, and his name put into the Check Roll of household, whatsoever he be, serving in any manner office or room, reputed, had, and taken under the estate of a lord, make any confederacies, compassings, conspiracies, or imaginations, with any person or persons to destroy or murder the king, or any lord of this realm, or any other person sworn to the king's Council, Steward, Treasurer, Controller of the king's house: that if it be found afore the said steward for the time being by the said xii. men, that any such of the king's servants, as is abovesaid, hath confedered, compassed, conspired, or imagined, as abovesaid, that he so found by the inquiry, be put thereupon to answer. And the Steward, Treasurer, and Controller, or two of them have power to determine the same matter according to the law. And if he be put in trial, that then it be tried by other xii. sad men of the same household. Challenge. And that such misdoers have no challenge but for malice. And if such misdoers be found guilty by confession, or otherwise, that the said offence be judged felony, and they to have judgement and execution as felons attainted ought to have by the common law. 2 For that unlawful and forcible violence, and also detestable adultery were committed in the ravishment of women, Ravishment of a woman therefore by the stat. of West. 2. St. 13. E. 1. 33 it was enacted, That if any man from henceforth ravish any woman married, maid, or other woman, where she doth not consent neither before nor after, he shall have judgement of life & of member: and likewise where a man ravisheth a woman married, lady, damsel, or other with force, although she consent afterward, he shall have such judgement as before is said, if he be attainted at the K. suit: for the K. shall have the suit. Abusing a woman under x. years of age 3 By a stat. made An. 18. El. it was ordained, St. 18. El. 6 That if any person shall unlawfully & carnally know & abuse any woman child under the age of x. years, every such unlawful & carnal knowledge shallbe felony, & the offendor thereof being duly convicted, shall suffer as a fellow, without allowance of clergy. The forf. for consenting to a rape. 4 By a statute made An. 6. R. 2. 6. it was ordained, St. 6. R. 2. 6. That wheresoever and whensoever ladies daughters, and other women be ravished, and after such rape do consent to such ravishers, that as well the ravishers as they that be ravished, & every of them, be from henceforth disabled, & by the same deed unabled to have or challenge heritage, dower, or joint feoffment after the death of their husbands, and ancestors: and that incontinently in this case the next of the blood of those ravishers, or of them that be ravished, to whom such heritage, dower, or joint feoffment ought to revert, remain, or fall after the death of the ravisher, or of her that is so ravished, shall have title incontinently, that is to say, after the rape to enter upon the ravisher, or her that is ravished, and their assigns, and land tenants, in the same heritage, dower, or joint feoffment, and the same to hold in a state of heritage: and that the husbands of such women, if they have husbands, or if they have no husbands in life, that then the fathers or other next of their blood have from henceforth the suit to pursue, and may sue against the same offenders and ravishors in this behalf. And to have them thereof convict of life and of member, although the same women after such rape do consent to the said ravishers. And further it is accorded, that the def. in this case shall not be received to wage battle, but that the truth of the matter be thereof tried by inquisition of the country, saving always to our sovereign lord the K. and to other lords of the said realm, all their escheats of the said ravishers, if peradventure they be thereof convict. A woman ravished conceived with child By the opinion of Britton, Britton. if a woman at the time of the supposed rape do conceive with child by the ravisher, this is no rape, because a woman cannot conceive with child, if she do not consent. It is a good plea in an appeal of Rape, to say, that before the ravishment supposed, Bracton. he kept and used the plaintiff as a Concubine: Or to plead, A Concubine. that though he lay with her, yet he did not carnally know her, for that is the force of the declaration in an appeal of Rape. T. 9 E. 4. 26 If a man shallbe charged with a Rape by the way of indictment, or otherwise, he ought to be charged expressly by this word (Rapuit) and not by any other words, This word (Rapuit) necessary in an indictment. notwithstanding they do amount to as much as this word (Rapuit) doth as carnaliter cognovit, or such like. S. Appeals 81. 85. St. 3. H. 7. 2 5 By a statute made Anno 3. H. 7. it is ordained, Taking a woman against her will. That if any person or persons shall take any maid, widow, or wife, which hath any lands or goods, or is heir apparent to her ancestor against her will unlawfully, such taking, procuring, and abetting to the same, and also receiving wittingly the same woman so taken against her will, and knowing the same, shall be felony: and such misdoers, takers, and procurers to the same, and receivers, knowing the offence in form aforesaid, shallbe reputed and judged as principal felons. But this act doth not extend to any person taking any woman, only claiming her as his ward or bondwoman. St. 39 El. 9 And by a statute made An. 39 El. it was enacted, That all and every such person & persons as shall be convicted or attainted for any offence made felony by the said act of 3. H. 7. or which shallbe indicted or arraigned, of, or for any such offence, and stand mute, or make no direct answer, or challenge peremptorily above the number of twenty, shall in every such case lose his and their benefit of clergy, No Clergy allowed. and shall suffer pains of death without clergy: any former law etc. notwithstanding. Provided always, That this act shall not extend to take away the benefit of Clergy, but only from such person and persons as hereafter shallbe principals, or procurers, or accessaries before such offence committed. St. 8. El. 3. 6 By a statute made Ann̄ 8. El. it was enacted, Transporting of sheep. That no person or persons shall bring, deliver, send, receive, or take, or procure to be brought, delivered, sent, or received into any ship, or bottom, any Rams, Sheep, or Lambs, or any other kind of Sheep, being alive, to be conveyed out of any of the queens dominions, upon pain, that every such person, his aidors, abettors, procurors, and comforters shall for his first offence forfeit all his goods for ever to the Queen and Informer, that will sue for them in any Court of Record, wherein no W. E. P. etc. And further, every such offendor shall suffer imprisonment one whole year, without bail or mainprize, and at the years end shall in some market Town, in the fullness of the Market, on the Market day, have his left hand cut off, and that to be nailed upon the openest place of such Market. The second offence felony. And every person eftsoons offending against this statute, shallbe judged a fellow, and shall suffer death as in cases of felony. But this act shall not extend to any corruption of blood, or be prejudicial to any women claiming dower by or from any such offendor. And the justices of Oyer & Determiner, Iust. of jail delivery, and I. of P. in every County and Shire within this Realm of England and Wales, and other the Qu. Dominions, shall have full power and authority by virtue of this Act to inquire of every offendor and offenders, contrary to the form and effect of this act: and to hear and determine every offence and offences committed & done contrary to the form and effect of the same, according to the course of the laws of this Realm. 7 For as much as divers evil disposed persons, being married, did run out of one country into another, or into places where they were not known, and there became to be married, having another husband or wife living, to the great dishonour of God, & utter undoing of divers honest men's children, and others: therefore by a stat. made ann 1. Felony in marrying until the former husband or wife be dead. jac. it was enacted, St. 1. jac. 11 That if any person or persons within his Ma. dominions of England & Wales, being married, or which hereafter shall marry, do marry any person or persons, the former husband or wife being alive, that then every such offence shallbe felony, and the party & parties so offending shall receive such & the like proceeding, trial, and execution in such county, where such person or persons shallbe apprehended, as if the offence had been committed in such county where such person or persons shall be taken or apprehended. Provided always, that this act shall not extend to any person or persons, whose husband or wife shallbe continually remaining beyond the seas by the space of 7. years together, or whose husband or wife shall absent him or herself the one from the other by the space of 7. years together, in any parts within his Ma. Dominions, the one of them not knowing the other to be living within that time. Provided also, that this act shall not extend to any person or persons that are or shallbe at the time of such marriage divorced by any sentence had or hereafter to be had in the Ecclesiastical Court, or to any person or persons, where the former marriage hath been or hereafter shallbe by sentence in the Ecclesiastical court declared to be void, and of no effect: Nor to any person or persons, for, or by reason of any former marriage had or made, or hereafter to be had or made within age of consent. No corruption of blood, or disheritance Provided also, that no attainder for this offence made felony by this act, shall make or work any corruption of blood, loss of dower, or disinherison of heir or heirs. Infected with the plague. 8 By the stat. made ann 1. jac. it was ordained, St. 1. jac. 31 That if any person or persons infected with the plague shallbe by the Mayor, bailiffs, Constables, or other head officers of any City, Borough, Town corporat, privileged place, or Market Town, or by any I. of Peace, Constable, Headborough, or other officer of the county (if any such infection be out of any City, Borough, Town corporate, privileged place, or market town) commanded or appointed to keep his or their house, for avoiding of further infection, & shall notwithstanding contrary to such commandment wilfully & contemptuously go abroad, & shall converse in company, having any infectious sore upon him uncured, than such person & persons shallbe taken & adjudged a fellow, and suffer death as in case of Felony. But if such person shall not have such sore found about him, them for his said offence to be punished as a vagabond should or ought to be by the stat. made 39 El. 4. for the punishment of vagabonds, and further to be bound to his or their good behaviour for one year: but no attainder of felony by virtue of this act shall extend to any attainder or corruption of blood, No corruption of blood, or forfeiture. or forf. of any goods, chattels, lands, tenements, or hereditaments. St. 35. El. 1 St. 2. jac. 25 9 By the stat. made Ann 35. El. it was ordained, That if any such offendor, Abjuration by a Recusant. which by the tenor & effect of the said act (entitled an act to retain the queens subjects in due obedience) is to be abjured, shall refuse to make such abjuration, as by the said stat. is appointed: Or after such abjuration shall not go to such haven, and within such time as is appointed, and from thence depart forth of the realm, according to the said statute: Or after his departure shall return and come again into any of the Q. Realms or Dominions, without her special licence in that behalf first had and obtained: Then in every such case the person so offending shall be adjudged a fellow, & suffer as in case of felony, without benefit of clergy. Provided, that the wife of such offendor, by force of this act, shall not lose her dower: nor that any corruption of blood shall grow, or be by reason of any offence mentioned in this act. But the heir of such offendor by force of this act, shall and may after the death of every such offendor have and enjoy the lands, tenements, and hereditaments of such offendor, as if this act had not been made. Provided, that no Popish Recusant or feme covert shall be bound to abjure by virtue of this act. St. 35. El. 2. 10 By a stat. made an. 35. El. it was enacted, That any such offendor, Abjuration of a Recusant. which by the tenor & intent of the act made to restrain Popish Recusants to some certain place or abode, is to be abjured, shall refuse to make such abjuration, or after such abjuration made shall not go to such haven, and wi●h●n such time as is appointed, and from thence depart out of the realm according to this act: Or after such his departure shall return or come again into any of her majesties realms or dominions, without her majesties special licence, in that behalf first had and obtained: then in every such case the person so offending shall be adjudged a fellow, and shall suffer and lose as in case of felony, without benefit of Clergy. St. 25. H. 8 6 St. 5. Eli. 17. 11 By a stat. ordained ann 25. H. 8. and made perpetual an. 5. El. it was enacted, That the detestable & abominable vice of Buggery Buggery committed with mankind, or beast, shallbe adjudged felony, and such order & form of proce● therein shallbe used against the offenders as in cases of felony at the common law. And the offenders being thereof convict by verdict, confession, or ●●iclary, shall suffer such pains of death, & losses, & penalties of goods, cattles, debts, lands, tenements and hereditaments, as felons be accustomed to do according to the order of the common law of this Realm. And no person offending in such offence, No clergy shall be admitted to his Clergy. And I. of Peace shall have authority within the limits of their jurisdiction and commission to hear and determine the same, as they have in cases of other felonies. St. 21. H. 8. 7 St. 5. El. 10. 12 By a statute provided An. 21. H. 8. and made perpetual Ann 5. Servants imbesiling their master's goods. El. it was established, That all and singular servants, to whom any caskets, jewels, money, goods, or cattles, by his or their master or mistress, shall be delivered to keep: if any such servant or servants withdraw him or them from their said master or mistress, & go away with the said caskets, jewels, money, or cattles, or any part thereof, to the intent to steal the same, & defraud his or their said master or mistress thereof, contrary to the trust & confidence in him or them put by his or their master or mistress: or else being in the service of his said master or mistress, without assent or commandment of his master or mistress he imbecile the same caskets, jewels, money, goods, or cattles, or any part thereof, or otherwise convert the same to his own use, with like purpose to steal it: if the said caskets, jewels, money, goods, or cattles that any such servant shall go away with, or which he shall imbecile with purpose to steal it, as is aforesaid, be of the value of forty shillings, or above: then the same false fraudulent and untrue act shallbe from henceforth deemed and adjudged felony, and he or they so offending shallbe punished as other felons be punished for felonies committed by the course of the common law. Provided always, that this act, or any thing therein contained, shall not in any wise extend, or be prejudicial to any apprentice or apprentices, nor to any person being within the age of xviij years, going away with his or their master's goods, or jewels, or otherwise, converting the same to his or their own uses, during the time of their apprenticeship, or being within the said age of xviij. years, but that every apprentice or apprentices, such person or persons being within the said age, doing or offending contrary to this act, shallbe and stand in like case, as they and every of them were before the making of this act. If a man do deliver an obligation to his servant to receive xx. M. 25. H. 8. Dyer 5. l. and the servant doth receive the money of the obligor, Receiving money upon an obligation. and then goeth away with the same, or doth convert it to his own use, this is not felony within the compass of the foresaid stat. of 21. H. 8. for the master did not deliver any goods to his servant in this case, but an obligation, which is not valuable, but a thing in action: and moreover, the money was not delivered to the servant by the hands of his master, but by the obligor. But if one of a man's servants doth deliver to another of his servants goods of the masters, being above the value of 40. s. and he doth go away with it, or convert it to his own use, this is felony. If a man do deliver to his apprentice wares or merchandises, M. 25. H. 8. Dyer 5. to sell at a fair, Receiving money for wares. or a market, and he selleth them, and receiveth the money, and then goeth away with the money, or converteth it to his own use, this is not felony by the stat. of 21. H. 8. for he had not the money by the delivery of his master, neither went he away with the thing that was delivered unto him. Servants imbesilling their master's goods after his death 13 By the stat. of Ann 31. H. 6. it was ordained, St. 31. H. 6. 1 That executors shall have a writ out of the Chancery, by the advice of the Chancellor, two chief justices, and the chief Baron of the Exchequer, with two proclamations, returnable in the K. Bench against such household servants of the Testator, as have spoiled or eloigned the goods of their master, after the death of the Testator. And if the writ be returned served, & the defendants make default, they shall be attainted of felony: and if they appear, they shallbe committed to prison, there to remain at the discretion of the justices, until the defendants do answer unto the said executors in such actions which the said executors will declare against them, or any of them, by bill or writ, for the riot, taking, and spoiling aforesaid, and that the same actions be determined, so that such actions be pursued with effect, and not slackly to retain the same persons in prison. And if the same persons be enlarged out of prison by the said justices, than they shall find sufficient sureties to the executors by recognisance to keep such days as they shall have assigned by the Court. And if the keeper of the prison, whereunto they shallbe committed, do let them go at large, without order of the justices, than the said keeper shall forfeit xl. l. to the executors. No protection shall lie in any action upon this statute. 14 By the stat. of Ann 14. E. 3. it was accorded, Enforcing a prisoner to become an approver. That sheriffs shall have the keeping of gaols, St. 14. E. 3. 10 as they had wont to have, and put in such keepers for whom they will answer. And if any keeper of prison or under keeper shall by too great dures of imprisonment and pain cause any prisoner which he hath in his custody, to become an approver against his will, and is thereof attainted, he shall be adjudged a fellow. 15 By the stat. of ann 5. El. it was enacted, Egyptians that every person & persons which shallbe seen or found within this realm of England or Wales, St. 5. El. 20. in any company of vagabonds, commonly called, or calling themselves Egyptians, or counterfeiting, transforming, or disguising themselves by their apparel, speech, or other behaviour, like unto such vagabonds, commonly called, or calling themselves Egyptians, & so shall or do remain & continue in the same by the space of one month: then the same person or persons shall be deemed & judged a fellow and felons, and shall suffer pains of death, loss of lands & goods, as in cases of felony by the order of the common laws of this realm, Trial and shall upon trial of them, or any of them, be tried in the country, and by the inhabitants of the county, or place, where he or they shall be apprehended, or taken, and not per medietatem linguae, No Clergy and shall lose the privilege and benefit of Sanctuary and Clergy. Provided, Xiiij years That this act shall not in any wise extend to any child or children, being within the age of 14. years. St. 8. H. 6. 12. 16 By the stat. made An. 8. H. 6. it was ordained, That if any Record, Imbesilling of Records or parcel of the same, Writ, Return, Pannell, Process, Warrant of Attorney in the Courts of Chancery, Exchequer, the one Bench, or the other, or the Treasury, be willingly stolen, taken away, withdrawn, or avoided by any Clerk, or other person, by cause whereof any judgement be reversed, such stealer, taker away, withdrawer, or avoider, their procurors, counsellors, & abettors, being thereof indicted, and by process thereupon made, thereof duly convict by their own confession, or by inquest to be taken of lawful men (whereof the one half shallbe of the men of any court of the same courts, and the other half of other) shallbe judged for felons, and shall incur the pain of felony. And the judges of the said Courts, of the one Bench, or of the other, have power to hear and determine such defaults before them, and thereof to make due punishment, as is aforesaid. 2. R. 3. 10 Br. Cor. 173 If a judge do file an indictment with other indictments, The penalties of judges or officers abusing Records which was not found by the jury, that did find other indictments: Or if he do imbecile or raze a Record, or such like, this is but misprision in the judge, but this is felony in another person who is no judge: and the judge shallbe indicted and arraigned thereof, & shall make a fine, & lose his office for this misprision. And if the steward of a Liberty doth arraign a man by the colour of Infangthéefe, and doth adjudge him to death, the liberty shall be seized therefore: but no punishment shallbe inflicted upon the steward, for he did it by colour of the liberty, and so no felony: and if a man do sue another by an action of debt to the exigent, whereupon he is outlawed, & another man doth raze the original, & the 3. capias, & the exigent, and maketh part in London, and the residue in Middlesex, and doth write in them W. B. for I.B. this is felony by the foresaid statute of 8. H. 6. which is, if a Record in either of the Benches, or in the Exchequer, be embezzled, carried away, withdrawn, or avoided, whereby a judgement shallbe reversed, that then it shallbe inquired by clerks of those Courts, and others, & it shall be adjudged by the justices of the same court, and it shall be ordained as felony: and this rasure doth avoid the whole Record, so that it cannot be redressed by error, & it is a greater offence then if part only had been avoided: 2. R. 3. 10 and all which be agreeing thereunto be felons. 17 By a stat. made an. 5. H. 4. St. 5. H. 4. 5. it was enacted, That the offenders which do cut the tongues, or put out the eyes Cutting of tongues, putting out of eyes. of any of the K. liege people, and that duly proved, and found that such deed was done of malice pretenced, shall incur the pain of felony. 18 By the stat. made anno 5. H. 4. it was ordained, St. 5. H. 4. 4. That none shall use to multiply gold or silver, nor practise the art of Multiplication: Multiplication. and if any do, he shall incur the pain of felony in this case. 19 By the Statute made Anno 34. Ed. 3. and 37. Ed. 3. St. 34. E. 3.22 St. 37. E. 3.19 it was enacted, Withholding of a hawk. That whosoever finds a falkon, Tarcelet, Laner, Laneret, or other Hawk, which the owner thereof hath lost, shall immediately bring the same to the Sheriff of the County, wh●ch shall make proclamation in all the good Towns of the County, that he h●th such a hawk in his custody, and if the owner which lost the hawk, or any of his servants come to challenge it, and proveth that it is his Masters, he shall pay for the costs, and have it. And if none do come within four months to challenge it, th●n the Sheriff shall have the hawk, agreeing with him that took it up, if he be a simple man, and if he be a Gentleman, and of estate to have a hawk, than the Sheriff shall deliver him the hawk, taking reasonable allowance for the keeping thereof. And whosoever taketh a hawk, and the same concealeth from the owner, or from his falconers, or takes away a hawk from the owner, or stealeth a hawk and carrieth it away, not observing the foresaid ordinances, and is thereof attainted, shall be used as a fellow, which hath stolen a horse or other thing. Congregations by masons. 20 By a Statute made Anno 3. H. 6. St. 3. H. 6. ●. it was ordained, That Congregations and Confederacies shall not be holden by Masons in their general assemblies. And if any such be made, they that cause such Chapters, and Congregations to be assembled and holden, if they be thereof convict, shall be adjudged for felons. And all other Masons that come to such Chapters and Congregations, shall be punished by imprisonment of their bodies, and make fine and ransom at the Kings will. A Soldier departing from his captain. 21 By the statutes of Anno 18. H. 6. Anno 2. E. 6. 2. and Anno 4. & 5. P. & M. St. 1●. H. 6. 19 St. 2 E. 6. 2. St 4 & 5. P. & M. 3. it was enacted, That if any Soldier, man of Arms, or Archer, which hath taken parcel of his wages of his captain, hath mustered, and is entered of record the King's soldier, doth not pass the sea, or go with his captain, (except notorious sickness or impediment by God's visitation doth stay him, which he shall immediately certify his captain, and repay his money) or else being in the enemy's country in garrison, or elsewhere in the K. service, where he is appointed to serve, doth departed without licence of the king's Lieutenant, Deputy, high Admiral, vice-Admiral, Warden, Captain, or in their absence of their Deputies, than he shall be taken, judged, and executed as a Felon, without having any advantage of Clergy or Sanctuary. And justices of Peace shall have authority to inquire thereof, and to hear and determine the same, as they do other felonies committed in that Shire where such Soldier shall be taken. And by a branch of a statute wade ann 5. Eli. it was ordained, That the foresaid statute of 18. H. 6. in all pains, St. 5. El. 5. 2. l●e. 25. forfeitures, and other things, did, doth, and hereafter shall extend, as well to all and every mariner and gunner, A Mariner or Gunner. having taken, or which hereafter shall take priest or wages, to serve the king, his heirs or successors, to all intents and purposes, as the same did or doth to any soldier. S. the statutes of 7. H. 7. 1. & 3. H. 8. 5. made to the like effect. St. 7. H. 7. 1. 3. H. 8. 5 Co. li. 6. 27. Et Quaere whether the first stat. which were made for covenant soldiers, or the later stat. which were ordained for pressed Soldiers, be, or aught to be put in execution: wherein have respect to the meaning of the makers of the foresaid stat. of an. 5. El. 5. 22 By the statute of Anno 27. El. 2. St. 27. El. 2. it was ordained, Receiving or relieving of jesuits. That every person which shall wittingly & willingly receive, relieve, comfort, aid, or maintain any jesuit, Seminary priest, or other priest, made out of the realm of England, Deacon, or religious or Ecclesiastical person, being at liberty, or out of hold, knowing him to be a jesuit, Seminary priest, or other such priest, Deacon, or religious or ecclesiastical person, shall for such offence be adjudged a fellow, without benefit of clergy, & suffer death, lose, & forf. as one attainted of felony. No Clergy St. 28. E. 1. 2 23 By the statute made An. 28. Ed. 1. it was established, That if any make purveyance or prizes without warrant, purveyance without warrant. and do carry them away, against the will of the owner, he shallbe arrested by the town where the prizes were made, and carried to the next jail, and if he be thereof attainted, he shall be punished as a fellow, if the value of the goods do so require. St. 25. E. 3. 15 24 By the Statute of Anno 25. Edw. 3. it was ordained, That no Purveyor of the kings shall take any more Sheep purveying of sheep. before shear time, but so many as may reasonably suffice until shear time, and after that time they shall take as many shorn Sheep, and not other, as may reasonably suffice for the time to come. And if any Taker, Purveyor, or Buyer, take any sheep with their Wool betwixt Easter and the Feast of Saint john Baptist, praise them at a small price, and send them to his house to be shorn to his own profit, and thereof be attainted at the suit of the king, or the party, he shallbe used as a Thief or a Robber. St. 5. Ed. 3. 2. 10. Ed. 3. 1. 25. E. 3. 1. 36. Ed. 3. 2. 25 By the Statutes made Anno 5. Edw. 3. 10. Edw. 3. 25. Ed. 3. 36. Ed. 3. it was enacted, That the Corn, cattle, & other victual, Appraisement of things purveyed. & things which shallbe taken for the king's house, shallbe taken in such place where most plenty is, and in convenient time, and no more than is needful for that season. And if the purveyor or buyer cannot well agree with the seller for that which he shall need, than the same shall be praised at the very value by the Constables and four honest men of the Towns where such taking is, thereunto sworn: and the praisers shall not be constrained by menace, threats, duresse, or other villainy, to set any price other than their oaths do require, but as such things do commonly go in the next Markets. And Indentures or Tallies shall be presently made betwixt the purveyors and those from whom the goods be taken, in the presence of the said Constables, and four praisers, containing the quantity of their take, the price, and of what persons, and they shall be sealed with the purveyors seals, by which Indentures or Tallies satisfaction shallbe made to them, from whom such goods be taken. And if any Taker or Purveyor do make his provision in other manner then by four discreet men of the Town, or do not deliver Tallies or Indentures with his seal, as is beforesaid, he shall be incontinently arrested by the Town where such purveyance was made, and brought to the next jail: and if he be thereof attainted, he shall be punished as a fellow, if the quantity of the goods do require. Taking of carriage. 26 By the Statute of Anno 36. Edw. 3. St. 36. E. 3. 2 it was enacted, That if any Taker or Buyer, after Commission to him directed, doth purvey, levy, or take any carriage in other manner than is comprised in his Commission, it is Felony. And by the Statute of Anno 36. Edw. 3. St. 36. E. 3. 4. it was ordained, That Commissions shall be awarded, to inquire of purveyors behaviour: and if it be found at the king, or party's suit, by evidence of the indictors, or other manner, that the purveyors have taken more than they have delivered to the king's house, and that they have not paid for that which they have taken, it is felony, & they shallbe punished as felons. Forging of evidence. 27 By the Statute of Anno 5. Eliz. it was ordained, St. 5. El. 14 That it shall be Felony, without benefit of Clergy or Sanctuary, eftsoons to commit any of the offences prohibited by the said Statute, ordained against the forging of Evidences and Writings, being once before convicted or condemned of any of the said offences by any of the ways or means limited by the said statute. But there shall be no corruption of blood, or forfeiture of dower, by reason of this felony. S. Forgery 3. etc. A Rogue banished. 28 By the Statute of Anno 39 Eliz. it was enacted, St. 39 El. 4. That it shall be felony for any Rogue, being by the justices of Peace adjudged incorrigible and dangerous, and therefore banished this Realm by the justices, in their Quarter Sessions, to return again into any part of this Realm, or Wales, without licence or warrant so to do, which felony shall be heard and determined in that County of this Realm, or Wales, in which the offendor shall be apprehended. St. 1. jae. 7. And by the statute made Anno 1. jacob. such Rogues as shall be adjudged (as aforesaid) incorrigible or dangerous, Rogues incorrigible. shall also by the judgement of the same justices, or the more part of them then present, in their open Sessions of the Peace, be branded in the left shoulder with an hot burning iron, of the breadth of an English shilling, with a great Roman R. upon the iron, and the branding upon the shoulder to be so thoroughly burnt and set on upon the skin and flesh, that the letter R. be seen, and remain for a perpetual mark upon such Rogue, during his or her life, and thereupon be sent by the same justices to the place of his dwelling, if he have any: if not, then to the place where he last dwelled by the space of a year, if that can be known by his confession, or otherwise: and if that cannot be known, then to the place of his birth, there to be placed in labour, as a true subject aught to be: and after such punishment of any such Rogue, as aforesaid, if any Rogue so punished shall offend again in begging or wandering, contrary to the said stat. of 39 El. 4. or this present act, Lex Allure. di Regis. Then in every such case the party offending shallbe judged a fellow, & shall suffer as in cases of felony, without benefit of clergy, the same felony to be tried in the county where any such offendor shallbe taken. St. 1. jac. 12 29 By the statute of Anno 1. jacob. 12. it was enacted, Conjuration, witchcraft. That if any person or persons shall use, practice, or exercise any invocation or conjuration of any evil and wicked spirit, or shall consult, covenant with, entertain, employ, feed, or reward any evil or wicked spirit, to or for any intent or purpose, or take up any dead man, woman, or child, out of his, her, or their grave, or any other place, where the dead body resteth, or the skin, bone, or any other part of any dead person, to be employed or used in any manner of Witchcraft, Sorcery, Charm, or Enchantment, or shall use, practice, or exercise any Witchcraft, Enchantment, Charm, or Sorcery, whereby any person shall be killed, destroyed, wasted, consumed, pined, or lamed in his or her body, Lex Athelstani 6. or any part thereof: then every such offendor, or offenders, their aiders, abettors, and counsellors being of any the said offences duly and lawfully convicted and attainted, shall suffer pains of death as a fellow or felons, and shall lose the privilege and benefit of Clergy and Sanctuary. If any person or persons shall take upon him, or them by witchcraft, Finding of treasure. enchantment, charm, or sorcery, to tell, or declare in what place any treasure of gold or silver, should, or might be found, or had in the earth, or other secret places: Or where goods, or things lost or stolen should be found, or become: Declaring where goods lost should be found. Provoking to love. Destroying of any person or cattle. Or to the intent to provoke any person to unlawful love: Or whereby any cattle, or goods of any person shallbe destroyed, wasted, or impaired, or to hurt or destroy any person in his or her body, although the same be not effected and done: Then all and every such person and persons so offending, and being thereof lawfully convicted, shall for the said offence suffer imprisonment by the space of one whole year, without bail or mainprize, and once in every quarter of the said year shall in some market town, upon the market day, or at such time as any Fair shallbe kept, there stand openly upon the Pillory, by the space of six hours, and there shall openly confess, his, or her error or offence. If any person or persons being once convicted of the same offences, as is aforesaid, do eftsoons perpetrate and commit the like offence, than every such offendor being of any the said offences the second time lawfully and duly convicted and attainted, as is aforesaid, shall suffer pains of death, as a fellow or felons, and shall lose the benefit and privilege of Clergy and Sanctuary: saving to the wife of such person as shall offend in any thing contrary to this Act, her title of Dower, and also to the heir and successor of every such person, his and their title of inheritance, succession, and other rights, as though no such attainder of the ancestor or predecessor had been made. Provided always, That if the offendor in any the cases aforesaid shall happen to be a Peer of the Realm, than his trial therein to be had by his Peers, as it is used 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 every such time as any information shall be made of any unlawful hunting by night, or with painted faces, in Forest, park, or Warren, to any of the King's Council, or to any justice of Peace of the County where such hunting shall be, of any person suspected thereof: It shall be lawful to any of the same Council, or justice of Peace, to whom such information shall be made, to make a Warrant to the Sheriff, or to any Constable, Bailiff, or other Officer of the same County, to arrest and take the same person, to have him before the maker of the same Warrant, or any other of the King's council, or justice of Peace of the same County. And the Counsellor or justice before whom such person shall be brought, shall have power to examine him of the said hunting, and of the doers thereof: and if he conceal the offence, or any offendor, it is felony: and if he confess the truth, and all that he shall be examined of and knoweth in that behalf, than the offence of hunting by him done, shall be against the King but trespass finable, to be assessed at the next general Sessions by the justices there. And if any Rescous Rescous. or disobedience be made to any person having authority to do execution or justice by any such warrant, by any person which should be arrested, so that execution of the same warrant be not had, than the same rescous and disobedience shallbe felony: and the same felony shall be inquired of, and determined as other felonies been. Twelve or above 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 twelve, or above, being assembled together, shall intend, go about, practice, or put in ure, with force of arms, unlawfully and of their own authority to alter or change any laws, made or established for Religion, by authority of Parliament, which stand in force; or any other Laws or Statutes of this Realm, or any of them: the same number being commanded or required by the Sheriff of the Shire, or by any justice of Peace of the same Shire, or by the Mayor, Sheriff, justices of Peace, or Bailiffs of any City, Borough, or Town Corporate, where any such assemblies shall be unlawfully had or made, by proclamation in the queens name, to retire and repair to their own houses and habitations, or places from whence they came: And they or any of them notwithstanding such proclamation, shall remain and make their abode, or continue together by the space of one whole hour, after such commandment or request made by proclamation, or after that shall willingly in forcible and riotous manner, attempt to do, or put in ure any things above specified, then as well every such abode or continuing together, as every such act or offence, that after such commandment or request by proclamation had or made, shall be attempted to be done, practised, or put in ure by any persons being of the number aforesaid, shall be adjudged Felony 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 offenders therein shall be adjudged Felons, and shall suffer only execution of death as in case of Felony. If any persons to the said number of twelve or above, shall intend, Practising to destroy parks, ponds, conduits. go about, practice, or put in ure, in manner and form aforesaid, to overthrow, cut, break, cast down, or dig up the pales, hedges, ditches, or other enclosure of any Parks or Park, or other ground enclosed, or the banks of any Fish Pond, or Poole, or any Conduits for water, Conduit heads, or Conduit pipes having course for water, to the intent that the same, or any of them from henceforth should remain open, not enclosed, or void: Or unlawfully to have common or way in the said Parks or Park, or other grounds or ground enclosed, or in any of them, or to destroy in manner and form aforesaid, the Dear in any Parks or Park, or any Warreins or Warrein of Coneys, or any Dove-houses, or any Fish in any Fish ponds, or Poole, or to pull, or cut down any Houses, Barns, Mills, or Bays, or to burn any stacks of corn or grain, or to abate or diminish the Rents, or yearly value of any Manors, Lands, or Tenements, or the price of any victuals, corn, or grain, or any other thing usual for the sustenance of men, and being required and commanded by any justice of Peace, or by the Sheriff of the County, or by the Mayor, bailiff or Bailiffs, or other head Officers of any City, or Town Corporat, where such assembly shall be had, by Proclamation to be made in the queens name, to retire or return in peaceable manner to their places and houses from whence they came, and they or any of them (notwithstanding such Proclamation) shall remain, or make their abode, or continue together by the space of one whole hour, after such commandment or request made by Proclamation: or after shall in that forcible manner do, or put in ure any of these things last before mentioned, then as well every such abode, or continuing together, as every such act, that after such commandment or request by Proclamation had or made, shall be done, practised, or put in ure, by any persons, being above the number of twelve, shall be adjudged Felony, and the offenders therein shall be adjudged Felons, and shall suffer only execution of death, as in case of Felony. If any person or persons, unlawfully, and without authority, Raising of unlawful assemblies by some act or words. by ringing of any Bell or Bells, sounding of any Trumpet, Drum, Horn, or other instrument whatsoever, or by firing of any Beacon, or by malicious speaking or uttering of any words, or making of any outcry, or by setting up, or casting of any bills or bill, or writing whatsoever, or by any other deed or act, shall raise, or cause to be raised, or assembled, any persons to the number of twelve, or above, to the intent that the same persons should do or put in ure any of the acts or things abovesaid, and that the persons to the number of twelve, or above, so raised and assembled, after request or commandment had or given, in form aforesaid, shall make their abode, or continue together, as is aforesaid, or unlawfully, and in forcible manner perpetrate, do, commit, or put in ure any of the acts or things abovesaid, than all and singular persons, by whose speaking, deed, act, or any other the means above specified, any persons to the number of twelve shall be raised or assembled, for the doing, committing, or putting in ure any of the acts or things above mentioned, shall be adjudged for his so speaking or doing, a Felon, and shall suffer execution of death as in case of Felony. Reléeving them which be assembled. If any wife, or servant of any of the same persons, or any other person whatsoever, shall willingly and without compulsion, bring, send, deliver, or convey, any Money, harness, Artillery, Weapons, Meat, Bread, Drink, or other Victual to any person or persons so being assembled, as is aforesaid, during such time as he or they shall be so assembled together in forcible manner, as is aforesaid, than every wise, servant, or other person so bringing or conveying &c. any of the foresaid things, to the same persons so being assembled together in forcible manner, or to any of them, and not departing to their houses or dwelling places, upon request or commandment made unto them, as is aforesaid, shallbe adjudged a fellow, and shall suffer execution of death as in case of felony. Unlawful assembly by xl. and more. If any persons to the number of forty, or more, shall assemble together in forcible manner unlawfully, and of their own authority, to the intent to execute, do, or put in ure any of the things above specified, or to do other felonious or rebellious act or acts, and so shall continue together by the space of three hours, after Proclamation shall be made, at, or nigh the place where they shall be so assembled, or in some Market Town, thereunto next adjoining, and after notice thereof to them given, than every person so willingly assembled in forcible manner, and so continuing together by the space of three hours after such Proclamation made, and notice thereof given, shallbe adjudged a fellow. S. Riots etc. 32. etc. 32 By the Statute made Anno 39 Eliz. it was enacted, St. 39 El. 17 That all idle and wandering Soldiers, or Mariners, wandering soldiers and mariners. or idle persons, which now are, or hereafter shall be wandering as Soldiers or Mariners shall settle themselves in some service, labour, or other lawful course of life, without wandering, or otherwise repair to the places where they were borne, or to their dwelling places, if they have any, and there remain, betaking themselves to some lawful trade or course of life, upon pain that all persons offending contrary to this Act, to be reputed as Felons, and to suffer as in case of Felony, without any benefit of Clergy to be allowed. And every idle and wandering Soldier or Mariner, which coming from his Captain from the Seas, or from beyond the Seas, shall not have a Testimonial under the hand of some one justice of Peace, of, or near the place where he landed, setting down therein the place and time where and when he landed, and the place of his dwelling, or birth, unto which he is to pass, as aforesaid, and a convenient time therein limited for his passage: or having such testimonial, shall wilfully exceed the time therein limited above fourteen days: And also as well every such idle and wandering Soldier or Mariner, as every other idle person wandering as a Soldier or Mariner, which shall at any time hereafter forge or counterfeit any such Testimonial, Forging a Testimonial. or have with him or them any such Testimonial forged or counterfeited, as aforesaid, knowing the same to be counterfeited or forged, in all these cases every such act or acts to be Felony, and the offenders to suffer, as aforesaid, without any benefit of Clergy. It shall and may be lawful for the justices of Assizes, justices of jail delivery, and justices of Peace of every County, and for all justices of Peace in Towns Corporat, having authority to hear and determine Felonies, to hear and determine all such offences in their general Sessions, and to execute the offenders, which shall be convicted before them, as in cases of Felony is accustomed: Except some honest person, Retaining an offendor into service. valued at the last Subsidy next before that time, to ten pounds in goods, or forty shillings in lands, or else some honest Freeholder, as by the said justices shall be allowed, will be contented before such justices as such person shall be arraigned of Felony, to take him or them into his service, for one whole year than next following, and before the said justices will be bound in recognisance of ten pounds, to be levied of his lands, goods, tenements, and cattles, to the use of the King, if he keep not the said person or persons for one whole year, and bring him to the next Sessions for the Peace, and jail delivery next ensuing after the said year. And if any such person retained departed within the year, Departing without licence without the licence of him that so retained him, then to be indicted, tried, and judged as a fellow, and not to have the benefit of his Clergy. 33 By a Statute made Anno 31. Elizab. St. 31. El. 4. it was established, Imbeciling the K. Armour, etc. That if any person or persons, having at any time hereafter the charge or custody of any Armour, Ordnance, Munition, Shot, Powder, or Habiliments of War of the Queens, her heirs or successors, or of a Victuals provided for the victualling of any Soldiers, Gunners, Mariners, or pioneers, shall for any lucre or gain, or wittingly, advisedly, and of purpose to hinder or impeach her majesties service, imbecile, purloin, or convey away any the same Armour, Ordnance, Munition, Shot, or Powder, Habiliments of War, or Victuals, to the value of twenty shillings, at one or several times, than every such offence shall be adjudged Felony, and the offendor and offenders therein to be tried, proceeded on, and suffer as in case of Felony. The suit within a year after the offence, But none shall be impeached for any offence against this Statute, unless the same impeachment be prosecuted, or begun within a year next after the offence done. And this Act, nor any attainder or attainders of any person or persons, for any offence made felony by this Act, shall in any wise extend, or be interpreted to make the offendor or offenders to forfeit any lands, tenements, or hereditaments, any longer than during his or their life or lives, or to make any corruption of blood to any the heir or heirs of any such offendor or offenders, No corruption of blood, or forf. of dower. or to make the wife of any such offendor to lose or forfeit her dower, or title of dower, of, or in any lands, tenements, or hereditaments, or her action or interest to the same: Proof in discharge of the offendor. any thing in this Act etc. notwithstanding. And such person or persons as shall be impeached for any offence made felony by this Statute, shall by virtue of this Act be received and admitted to make any lawful proof that he can, by lawful witness, or otherwise, for his discharge and defence in that behalf: any law, etc. notwithstanding. Cutting down of Powdike. 34 By a Statute made Anno 22. H. 8. and revived Anno 2. & 3. St. 22. H. 8. Ph. & Mar. it was ordained, That every perverse and malicious cutting down, and breaking up of any part or parts of the dike called new Powdike in Marshland in the County of Norfolk, and the broken dike, otherwise called Oldfield dike by Marshland, in the isle of Ely, in the County of Cambridge, or of any other bank being parcel of the Rind, and uttermost part of the causey of Marshland aforesaid, made for the defence and salvation of the said country of Marshland, at every time and times from henceforth committed and done (otherwise than in working of the said banks or dykes, for the fortifying, repairing, and amending of the same) shall be taken, reputed, and adjudged Felony: And the offenders and doers of the same, and every of them, shall be adjudged and reputed felons. And the justices of Peace of the said Counties of Norfolk and Cambridge, within the said isle, at every of their Sessions within the same isle and Counties to be kept, shall have power to cause inquiry to be made of every such offence, so at any time in form aforesaid hereafter to be done and committed, and to award like Process against every of the said offenders, with like judgement and execution of the same (if they or any of them be found guilty by verdict, or otherwise) as the said justices have used to do upon other felonies, being felony by the common law. Taking the oath for the King's title. 35 By a Statute made Anno 3. jac. 4. it was enacted, St. 3. jac. 4. That every subject of this Realm, that after the tenth day of june next coming, shall go or pass out of this Realm to serve any foreign Prince, State, or Potentate, or shall after the said tenth day of june pass over the Seas, and there shall voluntarily serve any such foreign Prince, State, or Potentate, not having before his or their going or passing, taken the oath (viz. That our Sovereign Lord King james is lawful and rightful King of this Realm etc.) before the officer thereunto appointed, shall be a fellow. And if any Gentleman, or person of high degree, or any person or persons which hath borne, or shall bear any office or place of Captain, Lieutenant, or any other place, charge, or office in Camp, Army, or Company of Soldiers, or Conductor of Soldiers, shall after go or pass voluntarily out of this Realm, to serve any such foreign Prince, State, or Potentat, before that he and they shall become bound with two such sureties as shall be allowed of by the officers, by this Act limited to take the said bond, unto the K. his heirs or successors, in the sum of xx.l. of currant English money at the least, Bound not to be reconciled, nor to make conspiracy. with condition to the effect following, he shall be a fellow, viz. That if the within bounden etc. shall not at any time them after be reconciled to the pope or sea of Rome, nor shall enter into or consent unto any practice, plot, or conspiracy whatsoever, against the King's Majesty, his heirs and successors, or any of his or their estate and estates, realms and dominions, but shall within convenient time after knowledge thereof had, reveal & disclose to the K. Majesty, his heirs and successors, or some of the Lords of his or their privy Counsel, all such practices, plots, and conspiracies, than the said Obligation to be void. St. 43. El. 13 36 By the stat. made Anno 43. El. it was ordained, Forcible carrying any person out of Cumberland, etc. That whosoever shall at any time hereafter, without lawful authority, take away any of the K. subjects, against his or their will, or wills, and carry them out of the counties of Cumberland, Northumberland, Westmoreland, and the Bishopric of Durham, or to any other place within any of the said Counties, or detain, force, or imprison him, or them, as prisoners, or against his or their wills, to ransom them, or to make a prey or spoil of his or their person or goods, upon deadly feud, or otherwise: Or whosoever shallbe privy, consenting, aiding, or assisting to any such taking, detaining, or carrying away of any such person or persons, as aforesaid: Or whosoever shall take, receive, or carry, to the use of himself, or wittingly to the use of any other, any money, corn, cattle, or other consideration, commonly called Black mail, for the protecting or defending of him or them, or his or their lands, tenements, goods, or chattels, from such thefts, spoils, and robberies, as is aforesaid: Or whosoever shall give any such money, corn, cattle, or other consideration, called Black mail, for such protection as is aforesaid: Or shall wilfully and of malice burn or cause to be burned, or aid, procure, or consent to the burning of any barn or stack of corn or grain, within any of the said Counties, or places aforesaid, & shallbe of the said several offences, or any of them, indicted, & lawfully convicted, or shall stand mute, or shall challenge peremptorily above the number of xx. before the Iust. of Assizes, I. of jail delivery, I. of Dier and Terminer, or I. of peace within any of the said counties, at some of their general Sessions, within some of the said counties to be holden, shallbe adjudged, reputed, and taken to be as felons, and shall suffer death, without any benefit of Clergy, Sanctuary, or Abjuration, and shall forfeit as in case of felony. St. 1. Ed. 2. 37 By the stat. of An. 1. E. 2. it was ordained in this manner, viz. Touching prisoners breaking of prison, Breaking of prison. the K. doth will and command, that none which from henceforth doth break prison, shall have judgement of life and member for the breaking of prison only, except the cause for which he was taken and imprisoned, do require such judgement, if he should have been convicted thereof, according to the law and custom of the Realm, though in times past it hath been otherwise used. ❧ Principal and Accessory. 1 Having treated sufficiently of Treasons, Homicides, and other Felonies, and showed how many of every of them there be, I am now to write of those that be culpable therein, and to declare which be the chief and most grievous offenders in those crimes, whom the law doth term & adjudge Principals, and which be but Abettors, Procurers, and Receivers, whom the law doth brand & mark with the name of Accessories: and which of those be Accessories before the offence committed, and which after: in what cases one of them shallbe arrested, imprisoned, appealed, indicted, arraigned, or attainted, before the other, and in what not: when the acquittal of the one shall discharge the other, and when not: and where the punishment of the one shallbe greater than of the other, and where not. And in this title, to begin with the greatest & highest offence, The law doth hold it a rule infallible, 3. H. 7. 10. that in High Treason there is no Accessory, No accessory in high treason. for all the advisers, counsellors, persuaders, and assistants therein, be Principals, as much as if they were actors or doers: so that whatsoever offence doth make a man Accessory in Felony, the like maketh him Principal in High Treason. But in Petit Treason there is oftentimes a Principal and an Accessory, as there is in Homicide, Robbery, and other Felonies. Accessory before the offence committed. 2 There be two sorts of Accessories in Felony, whereof the one is Accessory before the felony committed, and the other is Accessory after the offence done: As if one hire, procure, or command another to commit a Felony, 10. Ed. 4. 14. but is not present when the other doth it, this procurer or commander is Accessory before the offence committed: But otherwise it is, if he be present at the time of the felony committed, for in that case he is Principal. 4. H. 7. 18. 7. H. 4. 27. And in some case one may be appealed as Principal and Accessory in one Appeal. Procurement of felony. 3 If one be present at the death of a man, 4. H. 7. 18. 13. H 7. 10. Plo. Com. 100 and moveth another to strike and kill him, by this means he is principal, though he did strike no stroke, as well as he that killed him: For the blows of h●m that did strike him, be in construction of law the blows of him which commanded him, when he was present, for if the commander had said nothing, the man slain had not been killed. 21. Ed. 4 71. 4 If one be present at the kill of a man, Coming purposely to a manslaughter. and cometh thither for that cause, although he at that time doth not move another to strike or kill him, neither doth any thing, yet he shall be adjudged principal: For when diue●s do come to do an evil act, Bro. Cor. 171. Kel. fol. 161 Pl. Com. 98 and one alone doth it, and the others be present abetting him, or ready to aid him in the fact, they be principals to all intents, as fully as he who did the act: for the presence of the other is a terror to him that was assaulted, and the occasion that he durst not defend himself; for when one doth see his enemy and divers of his companions coming to assault him, 13. H. 7. 10. and they all do draw their swords, and do environ him, and one only doth strike him, so that he dieth thereof, the others shall be adjudged as great offenders as he who did strike him; for if the others had not been present, peradventure he would have descended himself, and have escaped: for the number of the others that were present, and also ready to strike him, was a great fear unto him, and an abatement of his courage, and a cause to make him despair of his defence, and so the occasion of his death. And though but one man gave the blow, which was the cause of his death, yet the law will adjudge it the stroke of them all, given by the hands of that one man, and to be in each degree as penal to th●m all, as if they all had holden their hands at one time upon that sword, or staff, and given him his deadly wound. Fitz. Cor. 309. 5 If one being present at the kill of a man doth nothing, A will to assist a fellow. but would have aided his companion, if the party that was slain had made any resistance, Fitz. Cor. 314. 350. 433. 11. H. 4. 13. he shall thereby be adjudged principal: For all those which come in company in any place where any assembly is gathered, that an evil fact is committed, be it Homicide, Robbery, or other Trespass, every of them shall be adjudged a principal actor, though they stand by, and do not hurt: As if one come with others to do a diss●●●●●, and a man is killed by another, and he therein did nothing, Fitz. Cor. 314. 350. notwithstanding he shall be adjudged principal, though he came not to any such purpose, because he came to do an unlawful act. 6 If one chance to be present when another is slain, In company, but not consenting to a felony or when any other felony is committed, and doth not come in company with the felons, neither is of their confederacy, although he doth not make any resistance, or disturb the fellow, or levy Hue and Cry, yet he is neither principal nor accessory: Fitz. Cor. 395. 14. H. 7. 31. for it is no felony in him, but finable as a Trespass. And some do hold, that he shallbe but amerced in that case; and if he be within age, he shall have no punishment. 25. Ed. 4. 44 13. H. 7. 10. 7 If one man do hold another in his arms, or do bind him, Holding a man until he be slain. until a thirdman hath killed him, he that did hold the party slain in his arms is principal: But that holding in his arms must be proved to be done of a wicked and felonious intent; Bracton. for sometimes a man holdeth his friend in his arms of a loving mind, to keep him from taking or doing of hurt, and upon no malicious or evil intent. One thing commanded, & another effected. 8 If one command another to lay hold upon a third man, and the party commanded goeth and robbeth him, if the commander be absent when this Robbery is done, this is not Felony in him: for the party to whom the commandment was given, exceedeth his commandment; and also the commandment might have been performed without the Robbery. But otherwise it is, if the commandment were to beat him, Fitz. Cor. 314. and the party commanded did kill him in the commanders absence, in this case he is accessary to the felony, for it is hard to beat a man so, that he shall be sure that he shall not die of that beating. counseling to rob one, and another is killed. 9 If A. do command B. to rob C. and he attempteth to rob him, and D. doth defend C. and fighteth with B. that assaileth him, Plo. Com. 475. and B. doth kill D. in this case A. shall be accessory to this murder, for that B. attempting to rob C. doth pursue the commandment of A. and so being in the pursuit of that commandment, and resisted, another thing doth chance, viz. the death of D. therefore A. shall be partaker of that fact, and of the punishment thereof, for that his commandment was the cause thereof. Commanding to beat one, and he is killed. And the same Law is, Fitz. Cor. 314. 350. Pl. Com. 474. if A. do command to beat C. and he doth beat him so, that he dieth thereof, A. shall be accessory to this murder: For his commandment was the foundation of this murder, and the murder is the sequel of the commandment, and if A. be present at this beating, Commandment of burning one house and another is burned. than he shall be adjudged principal. And so it is, if A. do command B. feloniously to burn the house of C. in the night, and he doth it, and the same fire doth also burn the house of D. neighbour to C. in this case A. shall be accessory as well to the burning of the house of D. as of C. for seeing the burning of the house of D. doth ensue upon the burning of the house of C. and the first house was burned by the commandment of A. whereunto A. was accessory, he must also be accessory to the burning of the second house, viz. of the house of D. for he that commandeth an evil and unlawful act to be done, shall be adjudged accessory to all that shall ensue upon the same evil act, but not to any other distinct thing. Counsel of one act, and another is done But it is otherwise, Pl. Com. 475. where A. doth command B. to burn the house of C. whom he knoweth, and he doth burn the house of D. or doth command him to steal a Horse, and he stealeth an Ox: or doth command him to steal a white Horse, and he stealeth a black Horse: or doth command him to rob another by the high way of his money, and he doth rob him in his house of his plate; this doth differ from the commandment of A. and therefore these acts cannot be drawn within the compass of his commandments, and so he shall be adjudged no Accessory to any of the foresaid offences; for these be other acts and other felonies, and not any of those which A. did command or counsel to be done. The felony commanded, committed in another manner. And yet if B. shall commit the same felony which A. doth command or counsel to be done, though he doth it at another day, at another time, with another instrument, or in another sort than A. doth command or counsel him to do it, A. shall be accessory thereunto: As, if A. do counsel B. to kill C. by poisoning of him, and he doth kill him with his dagger: or doth counsel him to kill C. by the high way, and he killeth him in his house: or doth counsel him to kill him upon one day, and he killeth him upon another day; in all these cases and the like A. shall be accessory to the murder: for the murder is the substance and principal matter that doth ensue upon the commandment or counsel of A. which the law doth wholly respect, and not the circumstances, being only the manner and form of the facts. Pl. Com. 476. 10 If A. do command or counsel B. to kill C. and before he hath killed him A. doth repent him, and cometh unto B. and telleth him, The felony commanded countermanded, that he is sorry for his wicked counsel, and persuadeth and chargeth B. that he shall not kill C. and yet after that B. doth kill C. in this case A. shall not be adjudged accessory to the death of C. but it is the only murder and act of B. because A. did countermand his first counsel: And the law doth adjudge no man accessory to a Felony before the Felony committed, but him only whose mind and meaning is, that the Felony should be committed at that time that it is done. Pl. Com. 475. 11 If A. do procure and counsel B. to poison C. and to that end doth buy some venom or poison, and delivereth it to B. who tempereth it in an apple, counseling to poison one, and another is poisoned. or other thing, and delivereth it to C. with intent to poison him, and C. not knowing the poison in the apple, nor the intention of the said B. doth give the said apple to E. to eat, who eateth it, and is poisoned thereby, and dieth of the same poison within few days after: In this case notwithstanding this be wilful murder in B. that delivered the poisoned apple to C. (though it poisoned not him who he meant to have poisoned, but E. a stranger, to whom he pretended no hurt) yet A. who procured and counseled B. to give this poison to C. is not accessory to the murder of E. for that he never persuaded, nor gave his counsel, that E. should be poisoned, which assent of his the law will never strain further than he gave it. 12 As commandment and aid is in Murder, and Homicide, Commanding or aiding to Rape or Robbery. so is it in every other Felony, as Rape, Robbery, etc. for in Rape, if one do not commit the act, Fitz. Cor. 314. 350. but aideth and assisteth his companion, he is principal as well as he that committeth the fact. And the same law is, if one do commit a Robbery, and others be in his company, and do come with him for that purpose, they be all principals. 13 Accessory after the offence is he, Accessory after the offence committed. who knowing that another hath committed a felony, doth receive him, aid him, or comfort him: As if one do receive a fellow (before he is attainted of felony) knowing of the felony which he hath committed, 26. Ass. p. 47 or doth favour him, or aid him with money, meat, drink, or lodging, by that means he shallbe adjudged accessory. What act of the accessory maketh him a fellow, what not. But this difference is to be taken of aid, or counsel: for if he aid him by his good word, or suit for his deliverance, or do send a letter for his enlargement, this doth not make him acessorie to the felony. Receipt of a fellow attainted in the same County. 14 If one receive a fellow that is attainted of Felony by verdict or confession in the same County where the receiver is commorant or dwelling, and doth aid him, he is accessory to the Felony, Fi. Cor. 377 Bracton. though he doth not know that the other hath committed Felony, because he is a Felon by matter of record, whereof every stranger dwelling or commorant in the same County is to take notice. And it is Felony, if one be indicted of the receipt of another that is Outlawed of Felony in the same County where the receiver dwelleth: for that the offendor is attainted of Felony in that County by matter of record. S. Indictments 34. Receipt of a fellow attainted in another County. 15 If one be attainted of Felony by verdict, confession, Fi. Cor. 377 or outlawry in one County, and another doth receive him, and aid him in another County, he is not accessory to the Felony, unless he doth know of the Felony: because he cannot take knowledge of an act done in another County, though it be by matter of record. S. Indictments. 34. Indictment of an accessory in one County to an offence done in another. 16 Because that thieves and Robbers that had rob or stolen in one County, would convey their spoil, or part thereof so rob and stolen, unto some of their adherents in another county, where the principal offence was not committed; who knowing of such felony, willingly and by covin did receive the same: in which case, though the principal fellow were attainted in one county, the accessory escaped, by reason that he was accessory in another County, and that the jurors of the same county by the common law could take no knowledge of the principal felony ne attainder in the first county, and so such accessories escaped thereof unpunished: For the remedy whereof, by a Statute made Anno 2. & 3. E. 6. it was ordained, St. 2. & 3. E. 6. 24. That where any murder or felony shall be committed in one county, Trial of an accessory in one County, to an offence done in another. and another person or more shall be accessory to the same in another county, Then an Indictment found or taken against such accessory and accessories, upon the circumstance of such matter, (before the justices of Peace, or other justices or commissioners, to inquire of felonies in the county, where such offences of accessory shallbe committed) shallbe as good in the law, as if the said principal offence had been committed within the same county where the same indictment against such accessory shallbe found. And the justices of jail delivery, or Oyer & Terminer, or two of them, of, or in such county, where the offence of any such accessory shallbe committed or done (upon suit to them made) shall write to the Custos Rotulorum, or Keepers of the Records, where such principal shallbe attainted or convict, to certify them, whether such principal be attainted or convicted, or otherwise discharged of such principal felony, who upon such writing shall make sufficient Certificate in writing under their Seal or seals to the said justices, whether such principal be attainted, convicted, or otherwise discharged, or not. And after that they do certify, that such principal is attainted, convicted, or otherwise discharged of such offence, Then the said justices etc. shall proceed upon every such accessory in the County where he became accessory, in such manner and form, as if both the said principal offence and accessory had been committed in the same County where the offence of accessory was committed, and every such accessory and other offenders above expressed, shall answer upon their Arraignments, and receive such Trial, judgement, order, and execution, and suffer such forfeitures as is used in other cases of Felony. 27. Ass. p. 69 25. Ed. 3. 39 9 H. 4. 1. 17 If one receive goods stolen, or any parcel thereof, yet he shall not be accessory to the felony, if he do not receive the Felon himself. But if he do receive the goods stolen, Receiving of of stolen goods and also the Felon, he shallbe accessory to the felony, so that the same Felon be before accessory of the same felony. S. Indict. 34. Fitz. Cor. 427. 18 If a Felon doth fly, and come to his friend's house, Receiving the Felon. and his friend doth shut the door, and the country which pursueth him, do think that the Felon doth continue in the house, whereas he escapeth: in this case the friend shall be adjudged accessory to this felony, for that his friend did aid and relieve him, and endeavoured to defend him from the justice of the law. S. Escape 2. 26. Ass. p. 52 19 And also a man may be accessory to an accessory: Accessory to an accessory. as if one do receive him who is accessory to a felony, by this means he himself shall be accessory to this accessory, because that first accessory is a fellow. 1. H. 7. 6. 20 If one do rescue him that is arrested, convicted, Rescue of a Felon. or attainted of felony, he is a principal Felon, and not an Accessory: and the reason is, for that this is a new felony by itself, though it doth depend upon the former felony. 21 A woman covert cannot be accessory in felony to her husband, A wife no Accessory to her husband. A married wife a principal Felon. for that by the laws of God she ought not discover his counsel: But by force of a Statute made Anno 1. Mar. a wife shall be a principal Felon, if she do send, deliver, or convey any relief to her husband, which amongst others, to the number of twelve, or above, shall be assembled, practice, and put in ure any of the offences prohibited by the said stat. provided against Rebellious and unlawful assemblies, St. 1. M. 12. St. 1. El. 16. Anno 1. M. 12. S. Felonies by statute 31. 22 If an offence be made felony by statute, Accessory to offences made felony by stat. although the same statute doth not expressly make mention of abettors, procurers, councillors, and receivers, yet they shall be taken within the compass of the same statute, as the consenter and aider to the counterfeiting of the great Seal, privy Seal, or the King's money, 19 H. 8. 47. St. 25. E. 3. 2 is Treason: and yet the words of the statute be, If any do counterfeit etc. which the other doth not, because he was but consenting and aiding thereunto. St. 13. E. 1. 34. 11. H. 4. 13. Fitz. Cor. 228. Br. Appeal 32. 23 In Rape, Rape if one do commit the fact, and another doth aid and assist him therein, he is thereby a ravisher, as well as his companion which committed the Rape: and yet the words of the statute of Westminst. 2. be, If a man do ravish a woman: for the assistant was the cause of the offence, without whom peradventure the Rape had not been done. And he is principal, because he was present when the fact was done, and therefore as much guilty as he which did the fact. And yet in the foresaid case, if two be indicted for committing of a Rape, one for doing the fact, and the other for aiding and assisting him, whereby they both be principals: if he that was indicted for aiding and assisting, be first arraigned, and by one inquest found guilty, Plo. Com. 97. and after he that was indicted for doing the act is arraigned, and by another inquest is acquit: In this case judgement shall not be given against him who was found guilty of aiding and assisting, because he cannot be guilty but in respect that the principal actor was guilty: and he being found not guilty of doing the fact, the other could not be aiding and assisting to a thing which was not done: And seeing both the verdicts cannot be true, but one of them must needs be false, the judges ought to give more credit to the verdict which acquitted him who was charged with doing of the fact, than to the other: For the inquest which acquitted him that was charged with the fact, was charged upon the principal point, viz. if the supposed ravisher committed the rape or not, and the other inquest was not so fully charged upon the principal point, but only whether he that was indicted of aiding and assisting, be guilty of the Felony whereof he is impeached, viz. of the aiding and assisting. Imbeciling of Records. 24 By the Statute of Anno 8. H. 6. 12. St. 8. H. 6. 12 it was ordained, That if any record, or parcel of the same, written, return, panel, process, or warrant of Attorney in the Chancery, etc. be willingly stolen, taken away, withdrawn, or avoided by any Clerk etc. such stealer, taker away, withdrawer, and avoider, their procurers, counsellors, and abettors, being thereof indicted, &c. shallbe adjudged felons. S. Felonies by statute 16. Rebellious assemblies. 25 By the stat. of an. 1. M. 12. 1. El. 16. St. 1. M. 12. St. 1. El. 16. it is enacted, That if any wife or servant (of any of the persons being in rebellious manner unlawfully assembled, contrary to the ordinance of the same statute) or any other person whatsoever, shall willingly and without compulsion, bring, send, deliver, or convey any money, harneyes, artillery, weapon, meat, drink, or other victual, to any person or perfons so being assembled, during such time as he or they shallbe so assembled, or be together, than every wife, servant, or other person, so bringing or conveying any of the foresaid things to the same persons so being assembled together in forcible manner, or to any of them, and not departing to their houses upon request or commandment made, shallbe adjudged Felons. But no person shallbe put to any loss, forfeiture, pain, or punishment of life, lands, or goods, as accessory to any person or persons, that shall commit any of the offences contained in this Act, for receiving, comforting, or aiding of any such offendor after such act committed or done. S. Felonies by Statute 31. Riots etc. Conjuration. 26 By the stat. of An. 1. jac. St. 1. jac. 12 it was ordained, That if any person or persons shall use, practice, or exercise any invocation, or conjuration of any evil or wicked spirit, etc. then every offendor or offenders, their aiders, abettors, and counsellors, being of any of the said offences lawfully convicted and attainted, shall suffer pains of death as a fellow or felons, without benefit of Clergy or Sanctuary. S. Felonies by Stat. 29. 27 By the Statute of Ann 3. H. 7. 2. St. 3. H. 7. 2 it was provided, That if any person shall take any maid, widow, or wife, which hath lands or goods, or is heir apparent to her ancestor, against her will, unlawfully, such taking, procuring, and abetting to the same, and also receiving wittingly the same woman so taken against her will, Taking a woman against her will. and knowing the same, shall be felony: And such misdoers, takers, and procurers to the same, and receivers, knowing the said offence in form aforesaid, shall be reputed and judged as principal felons. S. Fel. by Stat. 5. Br. 23, 24, 25, 26, 27. 28 Note that in all the Cases aforesaid touching offences made felony by Statute, the aidors, abettors, and counsellors be made principals, Aydors' etc. be principals. by the special words of the same Statutes, and not accessories to the same felonies. 27. Ass. p. 10 8. H. 5. 6 2. Ed. 3. 26 Bro. Coro. 185. 29 If one be acquitted of the principal act, he is acquitted of all offences committed as accessory, Acquittal of the principal is acquittal of accessory. before the doing of the principal fact; but not of offences committed as accessory after the principal fact. A man being indicted as accessory in murder was acquit by verdict, and after he was indicted as principal of the same murder, and was found guilty, and hanged, for though it concerned the same murder, yet it was not the same offence whereof he was first arraigned. Co. l. 4.43 30 A. brought an appeal of the murder of B. his brother, against C. Principal and accessory in manslaughter. as principal, and D. as accessory before the murder committed, and E. as accessory after the murder. C. the principal pleaded not guilty, and by the jury was found guilty of manslaughter, but not of murder, and then prayed, and had his Clergy: In this case, D. which was charged as accessary before the offence committed, was discharged, because he cannot be charged as accessory before the act of manslaughter committed, for manslaughter doth follow upon a sudden debate, or fray, for if it be premeditate, it is murder. And because C. the principal had his Clergy before judgement, so that it did not appear by the judgement of Law, that he was principal, both the accessory before, and the accessory after the manslaughter were discharged. And so it is, if the principal upon his arraignment, doth confess the felony, S. Br. 51. and before judgement hath his pardon, or clergy allowed, the accessory shallbe discharged. 31 There be two manner of attainders, Two attainders. whereof the one is upon appearance, that is to say, by confession, verdict, or battle: the other is by default upon process of outlarie. And in both cases the principal aught to be attainted before the accessory: as it doth appear by these words of the Statute of West. 1. viz. St. Ed. 1. 14. No person shallbe outlawed upon appeal of commandment, force, The principal shallbe attainted before the accessory. aid, or receipt, until he that is appealed of the fact be attainted: and one law shallbe kept thorough the whole realm: But he that will appeal shall not let to attach his appeal at the next County, aswell against the accessory, as against the principal; and yet the Exigent shall stay until the principal be attainted, by outlawry or otherwise. And to the like effect be these words of the statute of Officium Coronatoris, St. 3. Ed. 1. If any be appealed of an act done as principal, they that be appealed as accessory shall be attached, and surely kept until the principal be attached. 32 The foresaid Statute of Westm. 1. is to be intended of appeals commenced by Bill, Appeals commenced by writ or Bill. but not of appeals commenced by Writ: for of appeals commenced by writ, there doth not appear any to be accessory, 43. Ed. 3.18 until the count be made, which is not made until there be an appearance of the accessory. And therefore in that case where the appeal is commenced by writ, if the plaintiff will pray an Exigent against them all, 7. H. 4.27. he is thereby concluded to count against any of them as accessories: for if he should so do, he ought not to have had the Exigent against them until the principal had been outlawed, and therefore therein he is concluded. Principal shall be attainted before the Exigent against the accessory. 33 Where the words of the foresaid Statute of Westminster be, That he which is appealed of the fact shall be attainted before the accessory be outlawed: If at the time that the accessory is come to the Exigent the principal doth appear, and so the process is determined against him: 7. H. 4. 36. Notwithstanding, because he is not as yet attainted, the Exigent shall not be awarded against the accessory, until the principal be attainted. And this is to be intended where the accessory doth not appear, but maketh default. S. Trial by the Country 8. 34 If Process be awarded against the principal and accessory, and the principal maketh default, and the accessory doth appear; The principal maketh default, and the accessory appeareth. in this case the accessory shall answer: But if he plead to an issue, 9 H. 4. 2. 7. H. 4. 36. Fitz. Cor. 12. process shall not be awarded against the inquest, until the principal do appear, or be attainted by process, viz. be outlawed. And yet this process against the inquest shall not cease unless the accessory will: for if the accessory will request to have process against the inquest before the principal be attainted, he shall have it, 8. H. 5. 6. for that it is prejudicial to none but to the accessory himself: and whether he be attainted or acquitted, it is good. And he shall not be arraigned again, for the taking of the inquest is not erroneous. 35 If process be awarded against the principal and the accessory, Fitz. Cor. 12. and the principal maketh default, and the accessory doth appear, if the accessory will wage battle The accessory wageth battle. with the appellant before the principal doth appear; he may: for he may waive the benefit which the Law doth give him, if he will. 36 If the principal do make default, 9 H. 4. 2. and the accessory do appear and plead, then if the plea which the accessory pleadeth be a plea in abatement of the whole writ, Accessory pleadeth in abatement of the writ. the principal shall take advantage thereof, notwithstanding his absence: So that the Exigent which is to be awarded against the principal shall be stayed, until it be known whether the whole writ shall abate, or not. 37 If both the principal and the accessory do appear, Both the principal and accessary do appear. than the principal shall answer first, and the accessory after: for the principal may plead such a plea, that the accessory shall not be put to answer until the principals plea be tried. And that is in case where the principal doth not plead directly to the felony, but some other plea: as if he do plead that he himself was at an other time attainted of the same felony, 9 H. 7. 19 etc. And the appellant doth take issue thereupon, viz. not comprised, etc. Where the principals plea shall be tried before the accessories answer. The principal pleadeth in abatement of the writ. In this case the accessory shall not be put to answer until this issue be tried. 38 And so it is if both the principal and accessory do appear, and the principal doth plead a plea in abatement of the whole writ of Appeal, than the accessory shall not be put to answer until this plea be tried. Fit. Cor. 10 39 If the principal and accessory do both appear, and the principal doth plead to the felony, viz. not guilty, The principal pleadeth not guilty. than the accessory shall presently after that plea pleaded, plead also. And if they be at issue, one Venire facias shall be awarded for them both: But if at the day of the Venire facias returned, or at the time of the appearance of the inquest, the principal being in the mean time let to mainprize, doth make default, and not appear, the inquest shall not be taken against the accessory. 2. & 3. P. & M. Di. 120 40 If there be divers principals, and one accessory, or more: Several principals, and one accessory and process is awarded against all the principals, and the accessory, and some or one of the principals do appear, and some not, and also the accessory doth appear: in this Case process shall not be awarded against the inquest for the trial of the accessory, until all the principals do appear, or be attainted by outlawry: viz. if he be indicted or appealed as accessory to them all. But it is otherwise if he be indicted or appealed only as accessory to some of those principals: 40. As p. 25 7. H. 4. 36 Plo. come. 99 for there it is sufficient to have that principal, or those principals only to appear, or to be attainted by outlawry, to whom he is appealed or indicted as accessory, without having regard to the residue. 41 To have Process awarded against the inquest for the trial of the accessory, it is requisite, that the attainder of the principal be in the same suit, The attainder must be in the same suit. in the which he and the accessory be sued: for if he be attainted in another suit, that shall not enforce the accessory to proceed with his inquest until the principal which is sued with him doth appear, or be attainted by process of outlawry, etc. As in appeal of homicide against the principal and accessory, 7. H. 4. 36 and the principal before that time is attainted of the death of the same man upon an indictment at the King's suit. And the accessary shall plead for his own discharge the acquittal of the principal in an other suit; so that it be an acquittal for that offence, for the which he is charged as accessory. 7. H. 4. 27 42 If the principal be attainted of the death of a man, and then dieth, The principal attainted and dieth. and the justices before whom the accessory is sued have the record of the same attainder before them, than they may proceed against the accessory, otherwise not: for it doth by the Record appear unto them, that he which was appealed of the fact, is by Law attainted of felony, according to the foresaid Statute of Westminster 1. though he was not executed therefore. The principal standeth mute. 43 And though the Law be, Fit. Cor. 58 that an inquest shall not proceed against the accessory to try him until the principal do appear, or be attainted by outlawry, yet if the principal do appear, and will say nothing, but stand mute, the accessory shall be arraigned. Sed quaere; for the principal is not attainted of felony. Error in the Attainder of the principal. 44 If the Attainder of the principal be erroneous, 2. R. 3. 22. yet the accessory shall be arraigned: for the accessary shall take no advantage of any error committed in the attainder of the principal. An absured accessory returneth. 45 If one do abjure as accessary, and after doth return again, Fi. Cor. 124 the principal not being attainted, the accessory shall be hanged: for that he hath confessed the felony before the Coroner, and did return without the King's pardon or licence. The accessary tried upon his own request. 46 If the accessary of his own desire will wage battle before the principal be attainted, and be subdued therein: Fit. Cor. 12 or will desire to have an inquest to try him before the principal be attainted, and be found guilty therefore: In both these Cases he shall be hanged, though by the Law he was not compellable to either of the said trials, until the principal had been attainted; for he hath adventured his life, in hope to gain his liberty. 47 If the principal be found not guilty The principal found not guilty. by verdict, Bracton. the accessory shall be discharged thereby: for where there is no dée●e, there can no force, aid, or commandment hurt, in that the intended injury took no effect. So that the acquittal of the principal is in Law the acquittal of the accessory. The principal dieth in prison before attainder. 48 If the principal can not be tried (as if he die in prison before he be attainted of the felony) the accessory shall be thereby discharged: for there can none be found accessory to a felony, Co. l. 4. 43 where there is none attainted to commit the same felony. But otherwise it is if the principal be attainted of the felony, and dieth, there the accessory shall be arraigned, and hanged, if he be found guilty. The principal attainted of an other felony. 49 If the principal be attainted of another felony, and hanged, Fi. Cor. 378. before he is attainted of this felony, whereof he and the accessory be indicted, the accessory to this felony shall be discharged thereby. And the same Law is, if he be attainted of the first felony, though he be not hanged: because in that case after attainder, he shall not answer to other felonies, but only to robbery and treason, The principal slew the pa●tie in his own defence. 50 If it be found by verdict that the principal slew him, Fi. Cor. 116 of whose death he is arraigned, in his own defence, the accessary shallbe thereby discharged: And yet the principal shall be enforced to purchase his pardon: But this pardon proveth not, that he is guilty in other manner, than in his own defence. Notwithstanding in an other pardon it is otherwise; for if a principal plead his pardon to a felony generally, without any special matter found, which should cause the pardon, 2. Ed. 3. 27 Fi. Cor. 260 3. Ass. p. 14 42. Ass. p. 16 and is by that discharged; yet that will not discharge the Accessory, but he shall be hanged if he be found guilty of the felony: for by that pardon the felony is confessed, of the which felony, he prayeth to be discharged by the King's favour, and not by the benefit of law, as he doth in the other case. 3. H. 7. 12 10. H. 4. 5 13. Ed. 4. 3 Bro. Cor. 184 51 And in the like case, and upon the same reason, The principal hath his clergy. if the principal and accessory be arraigned of felony, and both be found guilty, and the principal doth pray, and hath the benefit of his clergy; yet the accessory shallbe hanged: for by the praying of his clergy, the felony is confessed, and the principal in this case is not saved by his innocency, but by a privilege in Law, which the accessory, being no clerk, cannot take the benefit of: But it is otherwise, if there be principal and accessory, and the principal is pardoned, or hath his Clergy before judgement, Co. l. 4. 43 the accessory shall not be arraigned: for where there is no fact, there is no force, and where there is no principal, The principal is pardoned, or hath his clergy before judgement there can be no accessory, and no man can be accounted principal, before it be so proved and adjudged by the Law, and that must be by a judgement upon a verdict, confession, or outlawry: and it is not sufficient that indeed there be a principal, until that appeareth by a judgement in Law. And the acceptance of pardon, or the praying of his clergy is an argument, but no judgement in law, that he is guilty. But if the principal after attainder be pardoned, or hath his clergy allowed, the accessary shallbe arraigned (and hanged if he be found guilty) for it doth appear judicially, that he was principal. 41. As. p. 24 52 The acquittal of the principal is the acquittal of the accessory (as is asaide) if it be not in an appeal, where the accessory is to recover damages: In appeal the acquittal of the principal is not the acquittal of the accessory. for if he will recover damages, he must be tried, notwithstanding the acquittal of the principal. But some do think, that he shall recover damages by the acquittal of the principal without being further tried: or otherwise it would ensue, that the Court should admit an accessory, where there had been no principal, which were inconvenient. ❧ Breaking of Prison, and Rescous. BY the common Law of this Realm, if a man had been imprisoned, and broken the prison, he should have been hanged, for what cause soever he had been imprisoned, yea although it had been but for trespass. Which great enormity was redressed by the statute of Anno 1. Ed. 2. entitled, St. 1. Ed. 2. De frangentibus prisonam; the words whereof be these. Touching prisoners breaking of prison, our Lord the King doth will and command, that none which from henceforth do break prison, shall have judgement of life, and member, for the breaking of prison only, except the cause for the which he was taken and imprisoned doth require such judgement, if he should have been convicted thereof according to the law and custom of the Realm, though in times past it hath been otherwise used. And therefore it is to be considered, who is a prisoner, and what is breaking of prison, Who is a prisoner. according to the meaning of the foresaid Statute. Every person who is under arrest for felony, is a prisoner, aswell being out of the jail, as within: So that if he be but in the Stocks in the street, or out of the Stocks in the possession of any that hath arrested him, 1. Ed. 3. 17. 1. M. Di. 99 and doth make an escape; that is a breaking of prison in the prisoner: for imprisonment is none other, but a restraint of liberty. 2 Though the letter of the stat. of Ann 1. Ed. 2. 1. H. 7. 6. 25. Ed. 3. 42 1. Ed. 3. 17. be touching prisoners breaking of prison, A stranger breaketh prison. yet if a stranger do break the prison, he is within the compass of this statute, for that by the common law this was a breaking of prison in a stranger, and felony in him at that time, and is felony also at this time in the prisoner, that escapeth by force of such breaking of prison by a stranger, although before the said Statute it was not felony in the prisoner. Letting a prisoner escape. 3 If a Gaoler, or any other which keepeth a prisoner under arrest do let him go at liberty, this is not felony in the prisoner, because it was no breaking of prison in the Gaoler: But all the felony in this case resteth in him who did let the prisoner escape, and that is by a voluntary escape, and not by breaking of prison: which is felony in him that suffered him to escape. 2. Ed. 3. 1 4 If by the negligence of the Gaoler, or any other which hath the prisoner under arrest, the prisoner do escape: Negligent escape this is felony in the prisoner that doth escape, for that the prisoner in making of escape did break the prison: but it is not felony in him out of whose custody he did escape. 5 To break prison is intended aswell of a Rescous made of a prisoner, Rescuing of a prisoner. as of breaking of prison: 1. H. 7. 6. As if a prisoner be under arrest for felony, and a stranger will feloniously take him out of the possession of him that hath arrested him, this Rescous is a breaking of prison, and is felony, as well in the party which escapeth, as in him that made the Rescous, and so was it by the common law. Fi. Cor. 333 6 If a stranger disturb the arresting of a fellow, Disturbing of arrest. that manner of Rescous is not felony; for the letting of a fellow escape, which is not arrested for felony, is not felony: but if the fellow had been taken, and arrested, and after rescued, this had been felony. 2. Ed. 3. 1. 1. H. 7. 6. 7 If the Sheriff return a Rescous The Sheriff returneth a Rescous. of a fellow taken out of his possession, or do return an escape, that the prisoner escaped from him; this will not serve as an indictment to put the party to answer thereunto, for that it is contrary to the Statutes of 25. Ed. 3. 28. Ed. 3. & 42. Ed. 3. St. 25. E. 3. 4 St. 28. E. 3. 3 St. 42. E. 3. 2. which have ordained, That none shall be imprisoned, or put out of his freehold, without an indictment or presentment before justices, or some matter of Record, or by due Process, or by writ original, which the Sheriffs return is not. S. Indictments 19 2. Ed. 3. 1. 8 It is no difference whose prison the offendor doth break, viz. Whose the prison broken must be. whether it be the King's prison, the Lords of a franchise, or any other persons: for whose soever it be, the offendor is within the compass of this statute, though it was otherwise before the Statute, Britton. viz. it was not felony, unless he had broken the King's prison. 9 If one be attached & taken for trespass, Attachment for trespass. and he which is attached doth ecape, or is rescued by a stranger, this is no felony, but trespass: for that the Statute saith: St. 1. E. 2. Except the cause for the which he is taken and imprisoned doth require such judgement. But yet the fine shallbe according to the quality of the person to whom the rescous is made, & according to the time and place, when, & where it is done. 22. Ed. 3. 13 A justice sitting in judgement arresteth an offendor And therefore if a justice assigned shall arrest a man that maketh a fray before him, and a stranger doth rescue him, by force whereof the prisoner escapeth: in this case as well the prisoner, as he that made the rescous, shallbe disherited, and shall suffer perpetual imprisonment: for that the attachment of such a justice, was the attachment of the King himself in the judgement of the law. But if such a justice make an arrest when he is out of his place, than such an arrest and escape is but finable, nor of any other effect, but as if the Sheriff, or some other officer had made the arrest. 1. H. 7. 6. 10 If a man be rescued at the gallows, or as he is in going to execution, this is within the compass of this Statute: Rescous after judgement. for the words of the Statute shallbe intended aswell in the preter tense, as in the present tense: viz. as well of judgement given, as of judgement to be given; for the cause for the which he was taken and imprisoned did require such judgement. The imprisonment and not the attainder respected. 11 It is not material whether the prisoner which did escape, was, 1. Ed. 3.17. or should have been attainted of the felony, for the which he was imprisoned, so that he were in prison for felony, at the time of breaking of prison: for a stranger which did rescue one that was indicted of felony, was indicted, arraigned, and found guilty thereof presently, before the principal felony tried. Imprisoned for Treason 12 If a man imprisoned for felony, doth break the prison, 1. H. 6. 5. S. Treason 9 and let escape a prisoner that is in prison for treason, this is petit treason in him that did break the prison. Disobeying of a warrant. 13 By a Statute made ann 1. H. 7. it is ordained, St. 1. H. 7. 7. That it shallbe felony for any person which should be arrested, to disobey, or make rescue to any person having warrant to arrest a hunter in the night in any forest, park, etc. or with painted faces etc. so that execution of the same warrant be not had. S. Felonies by Statute 30. Confession before a Coroner. 14 The confession of breaking of prison before the Coroner is an attainder in itself, without any more; if the cause of the imprisonment be for felony. 25. E. 3. 42. Fitz. Cor. 243. 435. Opening the prison, but not escaping. 15 If a man come to a prison, and setteth open the prison door, Kel. fol. 87 & persuadeth the prisoners which be in the jail, to come forth of prison, & to departed, yet if the prisoners do not come forth, and escape, this is no felony in him or them: but if any of the prisoners do escape, then is it felony in him or them that did escape, and in him also that set open the door. 30. H. 8. Dyer 44. And a man is always said to be in prison, so long as he is within sight of the Gaoler, or of him that hath him in custody, though he do escape, or break away. ❧ Escape. THere be two kinds of escape, viz. voluntary, and negligent: Voluntary escape Voluntary escape. is when one doth arrest another for felony, or other offence, and after letteth him go at liberty whither he will; this letting him go at liberty is a voluntary escape. Inaelex 36. And if the arrest of him which did escape, was for felony, it shallbe adjudged felony in him which did let him escape: And if it were for treason, than it shallbe adjudged treason. But it is not material whether he that escaped, was arrested by him that set him at liberty, or by some other, so that he were arrested: for without arrest it shall not be accounted an escape. 17. Ass. p. 9 If a fellow be in a house, and another not seeing him being in the street, doth call to him, and telleth him, that he doth attach him, but doth not arrest his person, this is no arrest. ●. H. 4. 1. 2 If a man receive a fellow, Escape of an offendor not arrested. knowing of the felony which he hath committed, and willingly suffer him to escape, this suffering the felons escape, is not felony in him that received the offendor, because he did not arrest him. S. Principal etc. 17. & 18. 11. H. 4. 4. 3 Also such an escape is not felony, if it were not felony at the time of the escape Felony at the time of the escape. made: for notwithstanding that the first act, for the which the party was arrested, is after become felony, yet that shall not make the escape felony, which was not felony at the time of the escape. As if A. do strike B. whereupon the Constables do arrest A. and willingly suffer him to escape, and after B. dieth of that stroke, this is not felony; for that B. being living at the time of the arrest, and escape of A, it was then no felony in A. But yet in this case, the party which arrested the offendor, shall pay to the King a fine to the value of his goods, because the escape was voluntary, and upon an heinous offence before committed: for the law hath always so much endeavoured to repress and punish felons, that if one man do kill another, and a third man is present at the same time, Fi. Cor. 293 331. 395. but of no confederacy with the manqueller, yet if he being of full age, do not his best endeavour to apprehend the same fellow, he shallbe imprisoned until he hath made five to the king therefore. 4 Negligent escape Negligent escape. is, when one is arrested for felony, and after doth escape against the will of him that arrested him, and is not freshly pursued, and taken again, before the pursuer shall lose the sight of him: this shallbe adjudged a negligent escape, Fi. Cor. 236 400. notwithstanding that he out of whose possession he escaped, did take him again after he lost the sight of him. Killing him that escapeth 5 It is a negligent escape, if the pursuer do kill the party which escaped in the pursuit of him, as he is carrying him to the jail, Fit. cor. 328 346 though he did never lose the sight of him: for by this means the party that escaped cannot be attainted of felony, and so the king shall lose his escheats. Taking again the party escaping 6 Upon fresh suit the Gaoler may take again the prisoner which escaped seven years after the escape made, 13. E. 4. 9 14. H. 7. 1 Fi. N. B. 130 notwithstanding that in the mean time he lose the sight of him: but that will not discharge the Gaoler of his fine for the same escape. And if the sheriff be in carrying one that is condemned to die, to the place of execution, and the prisoner be rescued, and taken from him by force, 6. H. 7. 12 & the Sheriff doth again take away the prisoner from those that did rescue him, and hang him: this shall not be adjudged an escape in the Sheriff. Licence to go to another town. 7 If a Gaoler licence his prisoner to go to another town, Pitz. Cor. 242. and to come again, this is a negligent escape, because the prisoner in this case was found out of the bounds of the prison. Licence to go into the same town. 8 If a Gaoler give leave to his prisoner to go into the same town, Fi. Cor. 431 and to come again, and he wandereth into another town out of his prescribed limits, and is there found wandering with an intent to escape, this is a negligent escape in the Gaoler. 9 If one which by the law is not mainpernable, be let to mainprize, Mainprize. 25. Ed. 3. 39 that shallbe adjudged a negligent escape in him who did let him to mainprize. Petit larceny. 10 As an escape may be of one that is imprisoned or arrested for felony: Fi. Cor. 430 431 so it may be of him, that is arrested, or in prison for petit Larcenie: But not of any that is arrested or imprisoned for trespass. Escape by return of Cepi Corpus. 11 A Capias was awarded to the Sheriff to arrest one of felony, 40. As. p. 42 and he thereupon did return Cepi Corpus, and at the day had not the body: upon this matter of Record, it was adjudged an escape in the Sheriff: and he was amerced a hundred shillings. 12 If an offendor be in prison at the suit of one man, and then at another's, 26. Ass. p. 52 or of divers men, and he doth escape: this shallbe adjudged but one escape, and the Gaoler shallbe charged but with one escape. But if one that is arrested for felony do escape, Fi. Cor. 422 and fly to the Church, and after escapeth out of the Church, Double escape these shallbe adjudged two escapes; viz. one from the prison, and another from the Church. And the Gaoler, or other who suffereth him to escape shallbe charged with the first of those Escapes, and the town wherein the Church is with the last of them. St. 3. H. 7. 1. 4. El. Dyer. 110. Fitz. Cor. 238. 293. 13 There be certain cases wherein an escape shall be adjudged, Escape without arrest. though there was no arrest before: as if one be murdered or slain in a town in the day time, and the murderer do escape without being taken or arrested by those of the town: in this case those of the town shallbe charged with this escape, that is to say, they shallbe amerced for it, and though the escape be at the evening. And by the Statute of Winchester, viz. of 13. Ed. 1. St. 13. Ed. 1. 1. 2. If a man be rob, and the fellow doth escape, and be not taken within six month, the town or hundred shall answer the party rob that made hue and cry, for the robbery, and the damages. Fi. Cor. 302 14 If one do kill another by misadventure, or in his own defence, Who shallbe charged with an escape. and do escape: the town where he was slain shallbe amerced for it, though the offendor was not arrested: for the people of the town do see a man slain, but they are not to judge, whether it be felony or not; and therefore they ought to have apprehended the manqueller. 15 As the law is of a town not walled in, or enclosed, Escape in a town walled touching a murder committed in the day; so is it of a city or town enclosed, of a murder committed in the night: for if in a town enclosed one be murdered, be it done by day or night; Fi. Cor. 299. if in that case the murderer do escape, the town or city enclosed shallbe amerced: because the city or town enclosed aught by the Statute of Winchester to be kept fast locked, from the Sun setting, to the Sun rising. Fi. Cor. 352. 425. 16 If a fellow do fly to a Church, and before abjuration he doth escape: Flying to a Church and escaping. in this case the town where the Church is, shallbe charged with this escape: viz. they shallbe amerced for it. But this must be before abjuration, for if he do escape after abjuration, the town shall not be charged therewith, for that by the abjuration, he is in law attained. 17 And so it is, if a fellow take a Church, which by the law cannot make abjuration: Escaping by making abjuration. in this case, if he fly from thence, the town shall not be charged with an escape: As if a man that is adjudged to be hanged, doth escape from the sheriff, 27. Ass. p. 54 Fi. Cor. 313 335 9 E. 4. 28. when he is in carrying him to the gallows, and doth take a Church, and then escape: the town where the Church is, shall not be amerced for this escape; for that in this case, he cannot make an abjuration, which is an attainder in itself, being attainted before. 18 And so it is to be noted, that a city, borough, Escape before or after arrest or town may be charged which the escape of an offendor, which hath committed murder, or homicide, though he were not arrested: But one, two, or more private persons cannot be charged with the escape of an offendor, until he be arrested. Where the Sheriff, and where the town charged. 19 If the Sheriffs bailiff do arrest one for felony in a town, and do carry him towards the prison, and certain persons of the town do go with the bailiff to assist him, & the fellow escapeth by the way, Fi. Cor. 328. 337. the sheriff shallbe charged with the escape: but it shallbe otherwise, if the fellow be committed to the people of the town to carry to prison; for in that case, if the prisoner do escape, the town shallbe charged therewith. The hundred charged with escape. 20 One was arrested for felony, and led to the hundred court, Fi. Cor. 316 and then he was persuaded to go abroad, and seek his warrant, viz. one that should warrant him those goods, which he was charged to steal, and he went, and fled to the Church, and abjured: In this case the whole hundred was charged with the escape, and the party who gave him the counsel, and leave, paid a great ransom to the king, and the felons goods were forfeited to the King. Escape of one imprisoned for a time. 21 One that hath committed petit larceny is adjudged to be imprisoned by the space of a month for his punishment, 27 As. p. 27 Fi. Cor. 430 and then being kept in prison after the month, he breaketh prison, and escapeth; the keeper of the prison shallbe charged with this escape. But if one that is arraigned of felony, 21. H. 7. 17 be adjudged to be acquit, viz. that he shallbe discharged, paying his fees: By this he shallbe out of prison touching the felony, and the Gaoler shall not be charged, if he do escape: for the prisoner in the first case was by judgement committed to prison, and in the last, adjudged to be acquit of imprisonment, paying etc. Where the town, hundred, or county shallbe charged with escape. 22 If one be slain in the day time in a town, Fitz. Cor. 238. 293. and the murderer escape without being taken, the town shallbe charged with the escape: And if the party be killed out of any town, than the Hundred shallbe charged therewith: Or if the town be not sufficient to answer the amerciament for the escape, Fi. Cor. 425 316. than the Hundred shallbe charged therewith: And for the disability of the hundred, the whole county shallbe charged with the escape. And the same law is of Abjuration, where the Church is in a field out of any town. The Gaoler will not receive a prisoner. 23 If the Constable do arrest a fellow, and carry him to the jail of the same county, and the Gaoler will not receive him, 10. H. 4. 7. the Constable ought not to let him go, but the town where the Constable dwelleth shallbe charged with the keeping of him, until the next jail delivery. Prisoner by matter of record. 24 The law hath two several respects to two sorts of prisoners, whereof the one is prisoner by matter of Record, and the other by matter in deed. A prisoner by matter of Record is, when one that is present in Court, is committed to prison by the Court. In this case, if the keeper of the prison hath not this prisoner always ready, when the Court will send for him, Fi. Cor. 466 or else do show a reasonable cause why he cannot have him, the Court will judge this an escape by the Keeper without further iniquity. But if the Keeper of the prison be in this case examined by the court of his prisoner, 39 H. 6. 33. and he will say nothing, the Court will adjudge it a voluntary escape. Fi. Cor. 352 25 If it be found in the Coroners Roll, that one did fly to the Church, Escape by a town. and no abjuration is found in the same Roll: in this case, the court will adjudge an escape upon the whole town without further presentment. A man killed being in carrying to the jail. And if a man be apprehended for felony in a town, Fi. Cor. 346 and carried towards the jail by certain of the same town, and if he do resist them, whereupon they do kill him: in this case it shallbe adjudged an escape upon that town; for in that he was not safely carried to the jail, & attainted of felony, the king doth lose his escheats. 26 When the Deciners do present that a fellow is apprehended for felony, Escape by the Sheriff. and delivered to the Sheriff, it will be adjudged an escape, if they do not declare to which Sheriff he is delivered, and name him, so that his rolls may be searched and seen, whether the prisoner came within the charge of the Sheriff: Fi. Cor. 345. and if it be not found, how he came out of the Sheriffs ward, according to the law of the Realm, an escape shallbe adjudged upon the Sheriff. 39 H. 6. 33. 27 It is used in the King's Bench, A Coroner sent to the Marshalsey to inquire etc. to send a Coroner once or twice every Term to the Marshalsey, to see all the prisoners that be committed to the marshal by matter of Record: and if any of them be wanting, & cannot be found there, to set his name in a book, and to inform the justices thereof: and then the Court will examine the Marshal thereof, and if he cannot sufficiently excuse himself, the Court will record escapes upon him for every of them. 21. As. p. 12. 28 And touching those which be prisoners of Record, Confessing & avoiding of an escape. the Keeper of the prison cannot traverse the escape; but confess, and avoid it: as in alleging that the prison was burnt, or broken by the King's enemies: or by saying, that he which is supposed to be escaped, is not the same prisoner which was committed to him. 29 Prisoner by matter in fait, is where one is prisoner by arrest only, Prisoner by matter in fait, viz. by arrest. whether it be by the Sheriff, the Constable, or any other, and he doth escape: there the Escape shall be presented before he shall answer unto it. And this presentment ought to be before the justices of the King's Bench, the justices in Eire, or some other justices that have authority to inquire thereof: Before whom an escape shall be presented. As it appeareth by the Statute of Westminster 1. the words whereof be these: It is ordained, St. 3. E. 1. 4. that nothing shall be demanded, nor taken, nor levied by the sheriff, nor by any other, for the escape of any thief or fellow, until it shallbe adjudged by the justices in Eire. And he that shall do otherwise, shall restore to him that paid it, so much as he hath received, and to the King as much. And likewise by the Statute of 31. Ed. 3. St. 31. E. 3. 14. it is provided, That the Escape of felons and Clerks convict, shall be adjudged by the justices, and by their view levied. And though the foresaid Statute of Westminster the first, doth not make mention of any but of justices in Eire, 21 As. p. 12. 27. As. p. 1. yet it doth also extend to the justices of the King's Bench: because the King's Bench is in Eire, and higher than an Eire, for if the justices in Eire do sit in a County, and the justices of the King's Bench come thither, the Eire shall cease. Iu. of peace and Coroner shall inquire of escapes. 30 And by the Statute of 1. R. 3. St. 1. R. 3. 3. justices of Peace may inquire of all manner of Escapes, of every person arrested and imprisoned for felony. And by the Statute of 3. H. 7. St. 3. H. 7. 1. They may inquire of the escape of any that hath committed murder, and make certificate thereof into the Kings Bench. And also by the said Statute of 3. H. 7. the Coroner upon the view of the dead body, may inquire of the escape of the murderer: for if he do commit the murder in the day, and escape, the town shallbe amerced. And also the Coroner shall deliver his Inquisition thereof to the justices at the next jail delivery of the same County. Traverse to a presentment of an escape. 31 Upon an escape, for the which no fine is to be paid, Fi. Cor. 291 328. 346. but an Amerciament, he or they which be charged therewith, shall have no Traverse to the presentment thereof: Quia de minimis non curat lex. Escapes inquirable in leets and Turns. 32 Although Escapes of felons be at this day inquirable in leets, and Sheriffs Turns, yet it shall not be levied, until it be adjudged before the justices: for that should be contrary to the foresaid Statute of Westminster 1. The penalties of escapes 33 The penalty of him, which doth voluntarily suffer one arrested for felony to escape, is the forfeiture of all that he hath, because it is felony. The penalty of him which doth suffer a negligent escape of a fellow, is to pay a fine. The penalty for the escape of him which was never arrested, is but an amerciament. And if any do suffer him that is attainted of felony, negligently to escape, he shall pay to the King for a fine an hundred pounds. And if the party escaping were but indicted, and not attainted, than he shall pay to the King for a fine a hundred shillings. If one which is not indicted, nor taken with the manner, nor apprehended at the suit of the party, 42. As. p. 5. but only taken by a stranger for susption of felony, do escape, there shall no penalty nor punishment follow thereof. But yet if after the same escape, he that did escape, 44. As p. 12. 42 As p. 5. 43. E. 3. 36 shallbe indicted of felony, or make his abjuration, than he that suffered him to escape, shall pay a fine to the King. Where a man arrested may be set at liberty, without further trial: where not. 34 If a man be arrested of felony by the Constable, or some other man, Kel. fo. 34 and after he that made the arrest hath intelligence, that there is no such felony committed: in this case, he may set the party arrested at liberty, and he shall not be charged with an escape: for there can be no fellow where there is no felony committed. But if a man be slain, and one is arrested for the same felony, or for the suspicion thereof, although that he who made the arrest, doth after understand, 44. As. p. 12. that the party arrested, is not guilty of that offence, or that the party was arrested upon malice, yet he may not set the party arrested at liberty, for he must be delivered by a course of law, and not by any man's discretion: for as the law hath taken knowledge, that a man was arrested of felony, so must it take knowledge how he is discharged thereof. And the same law is, if a man be arrested for any other felony committed, and after set at liberty by the party, that arrested him, or any other etc. Pursuit by Hue and Cry. FOr the prevention of felons, and felonies by watch and ward, and to the intent that they which shall commit any Homicides, Burglaries, Robberies, or other felonies may be apprehended, and justified by the Law: Or if they escape, and fly away, that they may be pursued and taken by Hue and Cry, and committed to prison: and to the end that due punishment may be inflicted upon those that do not pursue, or do conceal, or not attach felons, a Statute was made at Westminster Anno 3. Ed. 1. by the which it was ordained, All men shall pursue the hue and cry. St. 3. E. 1. 9 That all men generally shallbe ready at the commandment and summons of the Sheri●es, and at the cry of the Country to pursue and arrest felons when need shall be, as well within franchises as without; & they that will not, and thereof be attainted, shall make a grievous fine to the King. And if default be found in the Lord of a Franchise, the King shall seize the franchise into his hands: And if default be in the bailiff, he shall be one year imprisoned, and after make a grievous fine: and if he have not whereof, he shall have two years imprisonment. And if the Sheriff, Coroner, or any bailiff, within such franchise or without, for reward or entreaty, Concealment or not attachment of felons or any affinity, do conceal, consent or procure to conceal the felonies done in their liberties, or otherwise will not attach or arrest such felons (whereas they may) or otherwise will not do their offices, for the favour that they bear to such offenders, and be thereof attained, they shallbe one year imprisoned, and make a grievous fine; and if they have not whereof to make fine, they shall be three years imprisoned. And by a Branch of an other Statute made the same Anno. 3. Ed. 1. St. 3. Ed. 1. entitled Officium Coronatoris, it was enacted, That upon all Homicides, Burglaries, men slain, or put in great danger, hue and cry shall be levied, and every man shall follow the hue and cry, and the offenders steps if it may be: and whosoever doth not, and is thereupon convicted, shall be attached to appear before the justices of Gaale delivery. Freshsuit and inquiry after felons. 2 After, by another Statute made at Winchester Anno 13. Ed. 1. St. 13. E. 1. 1 it was provided, That immediately after any felonies and robberies be committed, fresh suit shall be made from town to town, and from country to country, and Inquests shall be taken, if need be, by him that is chief Lord of the town, and after in hundreds, franchises, and in the county, & sometime in two, three, or four counties, in case where felonies be committed in the Marches of the Shire, so that offenders may be attainted, and suffer punishment. And if the country will not answer for the bodies of such offenders, the people dwelling in every such country shall answer for the robberies done, & the damages: so that the whole hundred where the robbery shall be done, with the franchises which be within the same hundreds shall answer for the robberies done. The penalty of the country if a fellow be not taken. And if the robbery be done in the division of two hundred, then both the hundreds, together with the franchises within the precinct of them shall answer. And the country shall have no longer time after the robbery and felony committed, than half a year, within the which half year they must agree for the robbery, or else they shallbe answerable for the bodies of the offenders. After, by a Statute made ann 28. E. 3. 11. St. 28. E. 3. 11 it is established, That the country shall have no longer term after the robbery or felony committed, than forty days, within which it behoveth them to make gree of the robbery or offence, or that they answer the bodies of the offenders. And whereas the said stat. of Winchester hath ordained, That immediately after any felonies and robberies be committed, Co. li. 7. 6. fresh suit shallbe made from town to town, and from country to country: Though the said Stat. doth not make mention in what place, or at what time the robbery shallbe done, for the which the country shall answer, if they do not pursue and apprehend the felons: yet the sages of the law respecting the reason and ground of that stat do resolve, that the robbery which the country must answer for, is to be committed in an open place, The place & time of the robbery committed. which the country may take knowledge of by themselves, without hue and cry, or other notice given to them: for if a man be rob in his house in the night, or day, and the felons escape, the hundred where the house is shall not be charged therewith, for every man's house is his castle, which he must defend at his own peril, and if a man be rob in his house it shallbe accounted his own folly that he did defend it no better. And other men may not enter into that house for the safeguard thereof, as they may enter into the common field. And also the robbery which the country must answer for, is to be committed in the day time, and not in the night, viz. at such times add seasons as be meet for men to travel in, and not at such a time which is ordained for men to rest in. And therefore if a man be rob in the morning before day, the country shall not be charged therewith: but if it be during the day light, though the sun be set, the country shallbe charged therewith: for whosoever doth travel during the day light, is in the guard and protection of the law: and if any do journey by night, he doth it at his own peril. St. 13. E. 1. 4 3 For the more surety of the country, and speedier defecting of offenders, warding of walled towns by the said Statute of Winchester it was enacted, That in great towns being walled, the gates shallbe shut from the sun setting until the sun rising: and no man shall lodge in the Suburbs, or any place out of the town, from nine of the clock until day, unless his Host will answer for him. And the bailiffs of towns every week, or at the least every fifteenth day, shall make enquiry of all persons being lodged in the Suburbs, or in foreign places of the towns, and if they find any that hath received any suspicious persons, not keeping the King's peace, the bailiffs shall execute right and justice therein. St. 13. E. 1●4. 4 And by the said statute of Winchester it was moreover ordained, That in all towns watch shall be kept, as in times past it hath been used, That is to say, When the night watch shall begin and end. from the feast of the Ascension until Michaelmas, in every city six men shall watch at every gate, in every Borough twelve men, in every town six or four, according to the number of the inhabitants of the town, and they shall watch the town at night from the sun setting to the sun rising. And if any stranger do pass by them, he shall be arrested until the morning, and if no suspicion be found, he shall go quit: and if they find cause of suspicion, they shall forthwith deliver him to the Sheriff, and the Sheriff shall receive him without hurt, until he be acquitted in due manner. And if he will not obey the arrest, Resisting of arrest. they shall levy Hue and Cry upon him, and such as keep the Town, shall follow with Hue and Cry with all the Town and Towns near, and from Town to Town, until he be taken and delivered to the Sheriff, as is beforesaid: and for the arrestments of such strangers none shall be punished. And by the Statute of Anno 5. H. 4. St. 5. H. 4. 3 justices of Peace have power to make inquisition in their Sessions from time to time, and to punish them which be found in default, after the tenor of the foresaid statute of Winchester. Enlarging of high ways. 5 And for the more speedy apprehension of felons, and that they may have the less means to escape, when they have rob, or otherwise offended, St. 13. E. 1. 5. by the said statute of Winchester it is further established, That the highways leading from one Market town to another shallbe enlarged there where any wood, hedges, or ditches be, so that there shallbe no ditch, wood, or bush where he that doth lewdly may escape, within two hundred foot of the high way on the one side, and two hundred foot on the other (but this Statute extendeth not to Ashes or great Trees.) And if any robberies be done by default of breaking down ditches, underwood, and bushes, the Lord shall answer therefore: and if it be a murder, the Lord shallbe punished at the King's pleasure. And if the Lord be not able to cut down the underwood, the Country shall help him. And within the kings demesne woods in forests and without, the ways shall be enlarged as before is said. And if any Park be near unto the high way, the Lord thereof shall diminish it by the space of two hundred foot from the high way, or else make such a wall, ditch, or hedge, that offenders cannot go forward or backward to any hurt. 6 Because it is very hard, and extreme to many persons, for that by the foresaid Statutes of 13. Ed. 1. & 28. E. 3. 11. they do remain charged with the penalties therein contained, notwithstanding their unability to satisfy the same, and though they do as much as in reason might be required in pursuing such malefactors & offenders, whereby both large scope of negligence is given to the inhabitants & resiants in other hundreds & counties, not to prosecute the hue & cry made, followed, & brought unto them, by reason they are not chargeable for any portion of the goods rob, nor with any damages in that behalf given: & also great encouragement & imboldening is likewise given to the offenders to commit daily more felonies and robberies, seeing it is in a manner impossible for the inhabitants and resiants of the said hundred and franchise wherein the robbery is committed to apprehend them, without the aid of other hundreds and counties adjoining. And for that also the party rob having remedy by the foresaid statutes for the recovering of his goods rob and damages against the Hundred wherein the robbery was committed, is many times negligent and careless in prosecuting and pursuing the said malefactors and offenders. The Hundred charged where fresh suit shall cease. For the qualifying of all which extremities by a statute made Anno 27. Eliz. St. 27. El. 13 it was ordained, That the inhabitants and resiants of every, or any such Hundred (with the franchises within the precinct thereof) wherein negligence, fault, or defect of pursuit and fresh suit after hue and cry made shall happen to be, shall answer and satisfy the one moiety or half of all and every sum and sums of money and damages, as shall by force and virtue of the said Statutes (viz. of 13. Ed. 1. and 28. Ed. 3.) or either of them be recovered or had against, or of the same Hundred, with the franchises therein, in which any robbery or felony shall at any time hereafter be committed or done. And the same moiety shall and may at any time hereafter be recovered by action of debt, bill, plaint, or information in any of the queens Courts of Record at Westminster, by, and in the name of the Clerk of the Peace for the time being, of, The Clerk of the Peace shall prosecute the suit. or in every such County within this Realm where any such robbery and recovery by the party or parties rob shallbe, without naming the Christian name or the surname of the said Clerk of the Peace. Which moiety so recovered, shall be to the only use and behoof of the inhabitants of the said Hundred, where any such robbery or felony shall be committed or done. St. 27. El. 13 7 If any Clerk of the Peace, of, or in any County within this Realm, shall at any time hereafter commence, or prefer any such suit, action, or information, and shall after the same so sued, commenced, or preferred, The Clerk of the Peace doth die, or is removed. happen to die, or to be removed out of his office before recovery and execution had, yet no such action, suit, bill, plaint, or information sued, commenced, or preferred, shall by such displacing, or death, be abated, discontinued, or ended. But it shall and may be lawful, to, and for the Clerk for the Peace next succeeding in the said County, to prosecute, pursue, and follow all, and every such action, bill, plaint, suit, and information for the causes aforesaid, so hanging and depending, in such manner and form, to all intents and purposes, as that Clerk of the Peace might have done, which first commenced or preferred the said suit, bill, plaint, or information. 8 Although the whole Hundred where such robberies and felonies are committed, with the liberties within the precincts thereof, are by the said two former statutes charged with the answering to the party rob his damages, yet nevertheless the recovery and execution by and for the party or parties rob is had against one or a very few persons of the said inhabitants, and he and they so charged, have not heretofore by Law had any mean or way to have any contribution, of, or from the residue of the said Hundred where the said robbery is committed, to the great impoverishment of them against whom such recovery or execution is had: for the remedy whereof by the said statute of Ann 27. Eliz. St. 27. El. 13 it was enacted, That after execution of damages by the party or parties so rob, had, it shall and may be lawful (upon complaint made by the party or parties so charged) to, and for two justices of the Peace, whereof one to be of the Quorum, of the same County, inhabiting within the said Hundred, or near unto the same, where any such execution shall be had, to assess and tax rateably, and proportionably, according to their discretions all and every the Towns, A remedy for an equal contribution. Parishes, Villages, and Hamlets, as well of the said Hundred where any such robberies shall be committed, as of the Liberties within the said Hundred, to, and towards an equal contribution to be had and made for the relief of the said inhabitant or inhabitants, against whom the party or parties rob before that time had his or their execution. And that after such taxation made, the Constables, Constable, Headboroughs, or Headborough of every such Town, Parish, Village, and Hamlet, shall by virtue of this Act have full power and authority within their several limits, rateably and proportionably, to tax and assess according to their abilities, every inhabitant and dweller in every such Town, Parish, Village, and Hamlet, for, and towards the payment of such taxation and assessment, as shall be so made upon every such Town, Parish, Village, and Hamlet, as aforesaid, by the said justices. And if any Inhabitant of any such Town, Parish, Village, or Hamlet, shall obstinately refuse and deny to pay the said Taxation and assessment so by the said Constables, Constable, Headboroughs, or Headborough taxed & assessed: than it shall and may be lawful, to, and for the said constables, & headboroughs, & every of them within their several limits & jurisdictions, to distrain all and every person and persons so refusing and denying, by his & their goods and chattels, & the same distress to sell, and the money thereof coming to retain to the use aforesaid. And if the goods or chattels so distrained and sold, shall be of more value, than the said Taxation shall come unto, than the residue of the said money over and above the said Taxation, shall be delivered unto the said person or persons so distrained. Delivering the contribute money. 9 All and every the said Constables and Headboroughs, St. 27. El. 13 after that they have within their several limits and jurisdictions levied and collected their said rates and sums of money so taxed, shall within ten days after such collection, pay and deliver the same over unto the said justices of Peace, or one of them, to the use and behoof of the said Inhabitant or Inhabitants, for whom such rate, taxation, or assessment shall be had or made, as aforesaid: Which money so paid, shall by the justices or justice so receiving the same, be delivered over (upon request made) unto the said Inhabitant or Inhabitants, to whose use the same shall be collected. Levying of cantribution. 10 And the like taxation, assessment, levying by distress, and payment, St. 27. El. 13 as aforesaid, shall be had and done within every Hundred where default or negligence of pursuit and fresh suit shall be, for, and to the benefit of all and every Inhabitant or Inhabitants of the same Hundred, where such default shall be, that shall at any time hereafter by virtue of this Act, have any damages or money levied of them, for, or to the payment of the one moiety or half of the money recovered against the said Hundred, where any robbery shall be hereafter committed. No penalty where any of the offenders be apprehended. 11 Provided, that where any robbery is, St. 27. El. 13 or shall be hereafter committed by two or a greater number of malefactors, and that it happen any one of the said offenders to be apprehended by pursuit to be made according to the said former mentioned Laws and Statutes, according to this present Act, that then, and in such case, no hundred or franchise shall in any wise incur, or fall into the penalty, loss, or forfeiture mentioned either in this present Act, or in any the said former statutes, although the residue of the said malefactors shall happen to escape, and not to be apprehended: Any thing in this statute, or in the said former statutes to the contrary notwithstanding. Which said Branch doth in some sort qualify part of the foresaid statute of Winchester: for by the said statute, Col. 7. fol. 7 the Country must agree for the said robbery within half a year, or else they shall be answerable for the bodies of the said offenders, which is of all the offenders. But by this statute it is sufficient if they take any of the offenders, although not all. St. 27. Eli. 13 12 Provided also, Within what time the suit shall be commenced. That no person or persons hereafter rob shall take any benefit by virtue of any the said former Statutes to charge any Hundred where any such robbery shall be committed, except he or they so rob shall commence his or their suit or action, within one year next after such robbery so to be committed. St. 27. Eli. 13 13 No hue and cry, In what manner hue and cry shallbe made. or pursuit hereafter to be done or made by the Country, or inhabitants of any Hundred shall be allowed and taken to be a lawful hue and cry, or pursuit, upon, or after any of the said felons, or offenders, except the same hue and cry and pursuit be done and made by horsemen and footmen: Any usage, or custom to the contrary notwithstanding. St. 27. El. 13 14 No person or persons that shall hereafter happen to be rob, Notice must be given of the robbery. shall have or maintain any action, or take any benefit by virtue of the said two mentioned Statutes, or either of them, except the said person or persons so rob, shall with as much convenient speed as may be, give notice and intelligence of the same felony or robbery so committed unto some of the inhabitants of some Town, Village, or Hamlet near unto the place where any such robbery shall be committed: Nor shall bring or have any action upon, or by virtue of any the statutes aforesaid, except he or they shall first within twenty days next before such action to be brought, be examined upon his or their corporal Oath to be taken before some one justice of the Peace of the County where the robbery was committed, inhabiting within the said Hundred where the robbery was committed, The party rob examined ● bound to prosecute the offenders. or near unto the same, whether he or they do know the parties that committed the said robbery, or any of them. And if upon such examination it be confessed, that he or they do know the parties that committed the said robbery, or any of them, than he or they so confessing, shall before the said action be commenced, or brought, enter into sufficient bond by Recognisance before the said justice, before whom the said examination is had, effectually to prosecute the same person and persons so known to have committed the said robbery, by indictment, or otherwise, according to the due course of the Laws of this Realm. 15 Because the inhabitants of the Hundred of Benherst in the county of Berke consisting only upon five small villages, and three hamlets, and having in it two great road ways of three miles in length at the least, through the Thicket, have been overcharged by several Branches of the said Statute of Anno 27. Eli. 13. In reformation thereof, by a Statute made ann 39 Elizab. St. 39 E. 2● it was enacted, That the inhabitants of the Hundred of Benherst, alias Beinersh, within the County of Berke, shall and may to their own proper use, A remedy for the inhabitants of Benherst in Berkshire. in the name of the Clerk of the Peace of the said County of Berke, recover, have, and levy all such sums of money, costs, and damages as hereafter shall be recovered, or levied, of, or against them by the foresaid Statutes, or any of them, against the inhabitants and resiants of every, or any such Hundred, with the franchises within the precincts thereof, wherein negligence, fault, or defect of such pursuit, and fresh suit (as by the said Statute of 27. Elizab. is appointed to be made) shall happen to be, after notice given, or hue and cry brought to the said inhabitants or resiants, or any of them, of, or upon any robberies which shall be at any time hereafter done within the said Hundred of Beinersh. And this present Act shall give as full power and authority in all respects to the inhabitants of the said Hundred of Benherst (in the name of the Clerk of the Peace of the said County) for recovery, having, and levying of all the said money, costs, and damages as aforesaid, as the aforesaid Statute of 27. Elizab. gave or intended to give for the recovery of a moiety, or one half thereof. Provided always, that no such remedy, or recovery shall be had In what cases only the recovery shall be had. by this Statute, for all, or the whole sum or sums of money, and damages aforesaid, but only in these two Cases, viz. The one, where no such notice or intelligence (as by the said Statute of 27. Elizab. was appointed to be given of every, or any Robbery) shall be given to the inhabitants of the said hundred of Benherst alias Beinersh: The other where the inhabitants of the same Hundred (after such notice of any Robbery to them, or some of them given, or after hue and cry for the same to them brought) shall make, or cause to be made fresh suit, and pursuit after the offenders with horsemen and footmen, according to the said Statute of 27. Elizab. and where nevertheless the offenders, or any, or one of them shall not be apprehended within forty days after the Robbery committed. 16 Two joint owners of a sumine of money, P. 24. El. Di. 370. which were rob by felons unknown at A. in the Hundred of B. in the county of C. brought their action against the inhabitants of the said Hundred of B. and declared, that whereas hue and cry was levied by them, and notice there given, and the felons were not apprehended, nor descried, nor amends made within the six months, according to the statute of Winchester: whereunto the defendants, viz. the inhabitants of the said Hundred of B. pleaded in bar of the action, that immediately upon the hue and cry levied, they made fresh suit from the said Town of A. where the robbery was committed thorough their other towns unto the town of D. which is next adjoining to the said Hundred, and there hue and cry was given to the inhabitants of the said Hundred. ●●rsute will not serve ●●thout apprehension of th●●●lon●, or descrying them. But this manner of pursuit was adjudged no excuse, according to the meaning of the said statute of Winchester, without apprehending, or answering of the robbe●s, or descrying of their names, that they might be indicted and outlawed. And in this case the plaintiffs may join in action, because they were joint owners of the money: But if the sums of money had been several, and they had several properties in them, they would not have joined in Action. Arresting of him ●hat is pu sued by hue and cry. 17 If a man be driving of cattle, and be pursued by hue and cry, 29. Ed. 3. 39 the sheriff's Bailiff, or any other, may arrest him and the cattle supposed to be stolen, and commit them to the Town where they be apprehended to answer to the King, according to the Law, though the man arrested be not of evil name, suspicious, nor a stranger in those parts, nor indicted. For the Law doth give that credit to hue and cry, that every man is a sufficient Bailiff and officer to apprehend him that is pursued by hue and cry, and taken with the thing supposed to be stolen. And therefore if one man do levy hue and cry upon an other without cause, both the one party and the other shall be attached to answer it, as disturbers of the Peace. Appeals. WHen a murder, manslaughter, rape, burglary, robbery, or other felony is committed, and that the offendor (be he principal or accessory) is apprehended by hue and cry, or by any other means, and so by imprisonment or mainprize brought to his answer: Or otherwise if he flee and escape, when he is so discovered and known, that Process may be awarded against him by name, to take him, and bring him into the King's court of his answer: Then either the party most interessed or grieved by the same murder or felony, is to prosecute suit against the said offendor by Appeal, and thereby to seek revenge against him for the wrong done to himself, or his ancestor; or else the offendor is to be indicted at the King's suit, whose peace he hath broken, and whose law he hath offended, and who hath a special interest in all manner of treasons and felonies to punish them, to weed them out of his kingdoms and dominions, and to defend his subjects from them. And therefore I am to express in this Chapter, and the next, what an Appeal of felony is, and what an Indictment is, by whom, for whom, and against whom, and in what cases they are to be begun, prosecuted, and maintained, what defences or pleas are to be made or pleaded by the supposed offenders unto them, and what counterpleas may be objected against the same pleas. Appeal of death. An Appeal is a plaint of one person made against another, with an intent to attaint him of felony, by a course of Law provided therefore; which appeal may be brought against a woman covert without her husband, against an infant, and all others that can commit felony: and a woman may have an appeal for the death of her husband Appeal by a woman of the death of her husband. (because the husband and wife be one flesh) but of the death of none other, by force of the Statute of Magna Charta, which hath ordained, That none shall be taken, St. 9 H. 3.34 or imprisoned by the appeal of any woman for the death of any other, than of her husband. And therefore if a woman do bring an appeal of the death of her father, and the Defendant would admit it, yet the Court will abate it, 10. Ed. 4.7. Blow. Com. fol. 85. because it is contrary to the said Statute. Appellant conveyeth his title by a woman. 2 As a woman shall have no Appeal of the death of any other, but of her husband: No more shall any cousin of him that was slain, who maketh his conveyance in kindred by a woman, have any appeal of the death of him that is killed; notwithstanding he be issue male, and not female; Appellant conveyeth his title by a woman. and notwithstanding that the woman by whom he maketh his conveyance, died in the life time of him, 20. H. 6.46 Fi. Cor. 385 17. Ed. 4.1. of whose death the appeal is commenced. As if a man have issue one only daughter, who marrieth a husband, hath issue a son, and dieth; and after the father of that woman is slain. In this case the son of the woman shall not have an appeal of the death of his said grandfather, though he be his next heir at the common law, and inheritable to his land; because his mother was foreclosed of it by the foresaid statute of Magna Charta, and so likewise he, which hath none other title thereunto, but that which he deriveth from his said mother. Fi. Cor. 384 17. Ed. 4.1 But if he that was slain, have none heir on the father's side, than the uncle or next of kin on the mother's side, shall have the appeal, yea though he do convey his title thereunto by a woman. 3 By the ancient law of this Realm, a woman could not have an appeal of the death of her husband, unless her said husband were slain between her arms, within the year and day before: Neither could she, or any other have an appeal, unless she or he were present at the death of the party slain, and see it. But that Law was altered by the Statute of Gloucester, St. 6. Ed. 1.9 whereby it was ordained, That no Appeal shall be abated, so soon as they have been heretofore: But if the appellant in an appeal do declare the deed, the year, the day, the hour, The declaration in appeal of murder. the time of the King, and the Town where the deed was done, and with what weapon he was slain, the appeal shall stand in effect. And the appeal shall not be abated for default of fresh suit, where a man doth sue, within the year, and the day, after the deed done. 50. Ed. 3.15. 28. Ed. 3.91. 27. Ass. p. 3. 4 If a woman will have an appeal of the death of her husband, The woman must be the deads' lawful wife. it is requisite, that she be not only his wife indeed, viz. de facto, but also lawfully, and in right, viz. de iure: for never accoupled in lawful marriage, is a good plea, to bar her of her appeal. And it shall be tried by the Bishop, whether she be his lawful wife, or not. 20. H. 6.46. 12. El. Dyer. 296. 5 It is requisite, that a woman who will maintain an appeal of the death of her husband, shall live sole, and unmarried: The woman must live unmarried. for by her second marriage, her appeal is extinct, though her second husband do die, within a year and day after the death of her first husband. And if a woman do bring an appeal of the death of her husband, and hanging the Writ, she doth marry another husband, her appeal shall abate for ever. 11. H. 4.46. 6 If a woman do bring an appeal of the death of her husband, A woman marrieth between judgement & execution and do pursue the Defendant until judgement: And then after judgement, and before execution, she marrieth an other husband: In this case, she shall not obtain execution, viz. the Defendant shall not be hanged at her suit: for she hath willingly lost the name of her first husband, before she hath obtained the effect of her suit, and the revenge which she brought her appeal for. Where appeal lieth, but no dower. 7 There be some Cases, where a woman shall have an appeal of the death of her husband, though she be not endowable of the possession of the same husband: As where her husband is attainted of treason, 27. As. p. 41 35. H. 6.58 and after one doth kill him, his wife shall have an appeal, and yet she shall have no dower. And in like sort, if a woman do elope from her husband, and after one doth kill him, she may maintain an appeal against the offender, but no writ of dower against his heir. And many other Cases there be, where a man was so seized of his lands, that his wife is not thereof endowable by the Law: And yet if he be slain, she may maintain an appeal against the manqueller. Where the wife may have appeal, none other shall. 8 Where a woman may have an appeal of the death of her husband, 20. H. 6.47 Kel. fol. 120 none other shall have it during her life, nor after her death, though the wife do die within the year and day after the death of her husband, and before the appeal commenced; for that the appeal was once out of the blood, it shall not be restored to his blood again. If the husband be killed by his wife, The husband killed by his wife. his son shall have an appeal. 33. H 8. Dyer 50 18. Ed. 4.1. And yet if in that case the King do pardon the wife all treasons, the son shall be barred of his appeal. Appeal of death by the heir. 9 If he that was slain, had no wife living, at the time he was killed, than his next heir by the common Law, if he be male, shall have the appeal. But if he which bringeth the appeal be the next heir male to him that was slain, yet if there be another living, which is his heir by the common Law, though not his heir male, his appeal shall abate. As if he that was slain had issue a daughter, and no son, 27. As. p. 25. Fi. Cor. 384 his brother cannot maintain an appeal against the offendor, though he be his next heir male, because he is not next heir by the common Law to him that was slain, but his daughter is. And by the same reason, a Bastard, nor the youngest son, which doth inherit lands in Borough English, A Bastard. Heir in Borough English. shall not maintain an appeal, because neither of them is heir by the common Law. It was a custom in old time, if one were found guilty in an appeal of murder, that his wife, The manner of a murderer's death. and all the nearest of his kin, which was murdered, 11. H. 4.11. Plo. come. 306 should draw the fellow who committed the murder, by a long rope, to the place of execution. An appeal dieth with the Appellant, or by his non-suite etc. 10 This appeal of the death of the ancestor is so tied and affixed to the next heir male at the Common Law of him that was slain, that if it be once attached by him, although that he die, hanging the suit, or be non-suite therein, or do discontinue the suit, and that within the year, 38. H. 6.13. 9 H. 7.5. 16. H. 7.15, yet the appeal is extinct for ever: because it is but a personal action, and not ancestral, (for he that was slain could not have maintained it:) and therefore being but personal, it doth die with the person of the appellant. But it is otherwise, if the appeal were not attached by the heir, during his life, 11. H. 4.11. ●0. H. 6.46 but that he died before he brought his appeal, or died in the life of his ancestor that was killed: In that case, he which is next heir male living, shall have the appeal. 9 H. 7.5. Stamf. fo. 59 11 If the eldest son, before the appeal commenced, and within the the year, doth release the appeal, and then dieth, The heir doth release, and die. the second son and every other which claimeth as heir to the party slain, shall be barred thereby. 16. H. 7.15. 38. H. 6.13. 12 If the eldest son do bring an appeal, and hath judgement, Recovery and death before execution. and before execution of the offendor dieth, his heir shall not have execution: for if he should, he is to have it as heir to him that recovered, and not as heir to the party slain: which cannot be, for he that demandeth revenge of his ancestors death, must make himself immediate heir to the same ancestor which was slain, or otherwise his suit shall not be allowed, which the heir of the eldest son in this case cannot do. 13 If the eldest son, after the title of appeal accrued unto him, The eldest son disabling himself. or during the life of his ancestor that was slain, do disable himself by attainder of felony, or by being a Monk, a Priest, or mayhemed by the Defendant, Fitz. Cor. 235.322. or by any other cause: So that by such disability he cannot have an appeal, yet the second son shall not have it. 14 If the eldest son doth kill his father, or his mother, Killing father, mother, brother, or wife. the second son shall have an appeal against him. Fi. Cor. 459. And if there be three brethren, and the middlemost killeth the elder brother, the youngest brother shall have an appeal against him: And yet in the foresaid cases, he that bringeth the appeal, 18. Ed. 4.1. 33. H. 8. Dyer 50. is not heir to him that is slain. And if the husband do kill his wife, his son shall have an appeal against him. 1. H. 4.6. Littl. vill. 15 If the Lord do kill his Villain, the heir of him that was slain, The Lord killeth his villain. may have an appeal against his Lord, notwithstanding that the Plaintiffs in the appeal is villain to the Defendant: for the villains heir doth not sue for the recovery of lands, goods, or liberty from the Lord, but only for a lawful revenge of his ancestors death. And if the villains heir should not have an appeal in this case, the said offence should remain unpunished by appeal: for none other may pursue it. 41. As. p. 14. 45. Ed. 3.25 27. Ed. 3.83. Kel. fol. 120 32. As. p. 8. 16 An Infant An Infant. within the age of twenty and one years, may have an appeal of the death of his ancestor, (and in like sort he may have any manner of appeal:) But notwithstanding, the plea shall remain to be tried, until he come to his full age of one and twenty years, for that in this case the Defendant cannot wage battle against him: Attamen quaere. A man of 70. years of age. 17 A man of the age of three score and ten years may have an appeal of the death of his ancestor, Fi. Cor. 385 (and in like sort may have any manner of appeal:) and yet being of that age, he shall put the Defendant from waging of battle with him. Disabilities to bring an appeal. 18 If the Plaintiff which ought to sue the Appeal be attainted of treason, or felony, or a Monk, or a Priest, or mayhemed by the Defendant, Fi. Cor. 32● he shall not have an appeal. Disabilities in the appellant. 19 A man that is not of perfect memory, or that is deaf and dumb, Britton. or a Lazar, or a fool natural, shall not have an appeal of death, nor any other appeal. For battle cannot be waged against any of them, every of them being unperfect to perform the same. Pleading that the appellant hath an elder brother. 20 If one brother do bring an appeal of the death of his ancestor, 7. Ed. 4. 15 it is no plea for the appellee to say, that the said ancestor, at the time of his death, and after the Writ purchased, had an elder brother named B. to whom the appeal is given, and not to him that is plaintiff: for it may be, that the same B. was his brother of the half blood. And therefore the surest way is to begin his plea with the father of him that was slain, as to say, that such a man took to his wife such a woman, and had issue between them B. their eldest son, and he which was slain their second son, and the appellant their youngest son, and that he which was slain died, living B. their eldest son. The appellant in appeal of death may sue by attorney. 21 For that by the common Law, he that will sue an appeal, must sue it in proper person, which suit is long, and costly, and maketh the party appellant weary 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 appeal of murder, or death of a man (where battle by the course of the common Law lieth not;) may make his attorney, and appear by the same, in the said appeal, after it is commenced, to the end and Execution of the same. Who shall maintain an appeal of robbery. 22 As concerning an appeal of Robbery, who shall maintain it, Fi. Cor. 100 and for what causes, it is to be observed, That he from whom the goods be taken, may have the same appeal: As the Servant shall have an Appeal of Robbery, if the goods of his Masters be taken out of his custody and possession, and yet he had only the possession, but no property in the goods rob. A Carrier. And so it is, if a Stranger be commanded to carry another man's goods, and as he is in carrying of them, 2. Ed. 4. 15. he is rob of them, and they taken from him: In this case the same Stranger may have an Appeal of Robbery against those Robbers, because he standeth charged to him, who commanded him to carry the same goods. Fi. Cor. 357 23 A woman A woman. may have an appeal of robbery: and so may an infant: An Infant. Likewise Executors Executors. may have an appeal of Robbery, of a Robbery of the Testators goods done to themselves, but not done to their Testator: for if a man be rob, and after maketh his Executors, and die, the Executors shall not have an appeal of Robbery; for an appeal, being a personal action, dieth with the party, and shall not accrue to his Executors. Fit. Cor. 17. 24 A Villain Villain. shall not have an appeal of robbery, against his Lord, Lord. for any goods rob, or taken from him by his said Lord: Because all the goods of the Villain be the Lords at his pleasure. 17. Ed. 3. 13 25 One may have an appeal of robbery for the King, or the Queen; Appeal for the King or Queen. Stealing the goods of a man attainted of treason. as of any jewels, plate, or other goods of the Kings or Queens rob or taken from him. 11. H. 4. 40. And a man may be indicted of felony, 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 have an appeal of robbery, An appeal of robbery done to an other. though the robbery was not done to him, but to another: as if there be two merchants, Fi. Cor. 392 or other tradesmen, that do merchandise, or occupy their goods in common, and one of them is rob, and slain: In this case, the other merchant or tradesman, may have an appeal of robbery against the Robbers. And in like sort, if one do steal my goods from me, and another doth steal them from him: In this case I may have an appeal against the second fellow, because by the first taking, the property was not out of me, for a fellow doth not claim any property in the thing stolen; in such sort as he doth, 4. H. 7. 5. 13. Ed. 4. 3. who taketh a thing as a trespasser. 27 Touching an appeal of rape, Appeal of rape. and who by the Law shall maintain the same, it is to be noted, That if a woman sole, be ravished, she may have an appeal of rape. 8. H. 4. 21. But if a woman married be ravished, she cannot have an appeal without her husband. 28 If a woman covert be ravished, An appeal where a woman ravished consenteth. and after she doth consent to the ravisher, her husband only shall have an appeal of rape, by the Statute of Anno 6. Ric. 2. St. 6. R. 2. 6 the words whereof be these: It is ordained, that wheresoever, and whensoever any Ladies, noblemen's daughters, or other women be ravished, and after the same rape committed, do consent to the ravishers, as well the ravishers, as they that be ravished, and every of them, shall be disabled, and be disabled ipso facto to have or challenge all manner of inheritance, dower, or joint feoffment after the death of their husbands, and ancestors. And the husbands of such women (if they have husbands) or if they have no husbands living, than their Fathers, or other their next kinsmen in blood, shall have the suit to prosecute, and may pursue against the same offenders, and ravishers in this behalf; and to convict them of felony, though the same woman after the Rape, do consent to the Ravishers. And in this case the Defendant shall not wage battle, but the truth of the matter shallbe tried by the Country. S. Felonies by Statute 4. A lawful husband. 29 The words of this Statute be: That the husbands of such women etc. which is to be intended, of her lawful husband, That is to say, that her husband in right and possession, shall have the Appeal: 11. H. 4. 14. for never accoupled in lawful marriage, is a good plea in bar against him. And in like sort it is if the appeal be brought by the husband and wife, because the appeal is in the right; and so he must be her lawful and rightful husband, that must maintain the appeal alone, or jointly with his wife. Where the father or kinsman shall have an appeal of rape. 30 This Statute of 6. Ric. 2. doth give the appeal for default of the husband to the father, or to some other their next kinsman in blood; and so by the express words of this Statute, an appeal of rape is given to the father: and yet he shall not have an appeal, of the death of his son, or daughter. And where the said statute doth give the appeal for default of the husband, to the father, or etc. That is to be intended, where the woman doth consent to the ravisher: St. 13. E. 1. 34 for otherwise the woman shall have an appeal upon the statute of Westminster 2. 31 If a Lord do ravish his Niefe, A Lord ravisheth his naif Fit. Cor. 17 she shall not have an appeal of Rape against him: But the King shall punish him by indictment. Pledges in rape. 32 It appeareth by the statute entitled Officium Coronatoris, St. 3. Ed. 1. That if any be appealed of rape, he shall be attached by four or six pledges, if the appeal be fresh, and the sign of truth apparent, by effusion of blood, or an open outcry levied. But if it be without any manifest token, or outcry, two pledges shall suffice. Within what time an appeal shallbe commenced. 33 The before mentioned Statute of Gloucester hath ordained, St. 6. Ed. 1. 9 That an appeal shall not be abated, for default of fresh suit, where a man doth sue, within a year and a day, after the deed done. These words of the Statute be general, not making mention more, of an appeal of death, than of an appeal of any other felony: But yet conferring them, with the other words in the statute, they may be intended specially to extend to an appeal of death, and to none other appeal: for if a man that is rob doth make fresh suit, 7. H. 4: 44. and do his endeavour to apprehend the fellow, and use all his diligence to find him, although he do not commence his appeal, two or three years after the robbery committed, yet he may then well pursue it. And so in appeal of robbery, fresh suit shall be decided by the discretion of the justices. H. 22. Ed. 4 39 But in an appeal of death, it is a good plea for the Defendant to plead, that he of whose death, this appeal is pursued, died above a year and a day, before the said appeal commenced. 34 The words of the foresaid Statute of Gloucester be, St. 6. Ed. 1. 9 That a man shall pursue his Appeal, within a year and day, after the deed done. From what time the year shall have relation, touching an appeal. And therefore if one man do strike another upon one day, and he dieth of the same stroke certain days after, Co. l. 4. 42 the Appeal shallbe commenced within the year and day after the death, and not within the year and day after the stroke given: for there was no felony committed, until the man was dead. But yet if one man do give to another a mortal wound in February, and the king doth in April next give pardon to the offendor of all felonies before that time committed, Plo. come. f. 401 and the party stricken doth die of the same wound in May following; How the K. pardon shall have relation. this pardon shall discharge the offendor, because the wound given by the offendor was the cause of the felony, the which wound was the offence towards the King, and that the king hath pardoned, and so thereby the death of the party, and all other things depending upon the same offence be pardoned. 35 Where the words of the Statute of Gloucester be, The year shall have relation to that offence. That a man shall pursue his Appeal within a year and a day after the deed done: St. 6. E. 1. 9 Those words (viz. the deed done) shallbe intended of the felony whereupon the appeal is commenced: for if one be accessory to another a year after the homicide or murder committed, 26. Ass. p. 52 an appeal shallbe pursued against him, and yet it is not within the year and day after the homicide or murder committed. S. Br. 52. St. 3. E. 1. 13 36 It appeareth by Britton, and also by the Statute of Westminster 1. that an appeal of Rape ought to be commenced within forty days after the fact done: Within what time an appeal of rape shallbe commenced. But than Rape was but a trespass, which after by the Statute of Westminster 2. was made felony. St. 13. E. 1. 34. In which Statute of Westminster 2. there is no time limited, within the which a woman shallbe compellable to pursue her Appeal of Rape. And therefore it seemeth she is at liberty to bring it when she will, so that it be within a reasonable time. 18. Ed. 3. 32 37 An appeal ought to be brought in the County where the felony was committed, as if it be murder or homicide, In what county an appeal shallbe brought. where the same murder or homicide was done: But if a man be stricken in one county, and then goeth into another county, and there dieth of the same wound, by the common law an appeal may be commenced either in the county where the stroke was given, A man strike in one county dieth in another. or in the county where the party stricken did after die, and the trial thereof shall be by the jurors of both the counties, 3. H. 7. 12. 4. H. 7. 18. viz. as well of the county where he was stricken, as of the county where he died. And so it was at the plaintiffs pleasure to bring his appeal in which of those two counties he would. But since by the Statutes of Anno 2. & 3. E. 6. St. 2. & 3. E. 6. 24. it is ordained, That where any person shallbe feloniously stricken, or poisoned in one county, and die of the same stroke or poisoning in another county, than an indictment thereof found by jurors of the county where the death shall happen (whether it be found before the Coroner, upon the sight of such dead body: or before the justices of peace, or other justices or Commissioners, which shall have authority to inquire of such offences) shallbe as good in law, as if the stroke or poisoning had been committed in the same county, where the party shall die, or where such indictment shallbe found. And such party, to whom appeal of murder shall be given by the law, may commence, take, and sue Appeal of murder in the same county where the party so feloniously stricken or poisoned shall die, as well against the principal and principals, as against every accessory to the same offences, in whatsoever county or place the accessory shallbe guilty to the same. And the justices before whom any such appeal shall be commenced, sued, and taken within the year and day, after such murder & manslaughter committed, shall proceed against every such accessory, in the same county, where such appeal shallbe so taken, in like manner and form, as if the same offence of accessory, had been committed in the same county, where such appeal shallbe so taken, as well by the trial of the jurors of the county, where such appeal shallbe taken, upon the plea of not guilty, pleaded by such offendor, Accessories in other offences saving murder. as otherwise. But note that no Appeal is given by this Statute, Stamford. nor remedy provided against accessories in a foreign county, of other felonies (saving for murder or manslaughter) but the same is left to the common law. In what county an appeal of Rape shall be brought. 38 An appeal of Rape ought to be brought in the county where the Ravishment was done. And therefore if a man do take a woman against her will in one county, and then carry her into another county, and there do ravish her, the appeal shallbe only commenced in the county where the ravishment was committed. 3. H. 7. 12. And though she do declare of the taking of her in another county, yet it shallbe tried only in the county where the appeal is brought: for the declaring of taking of her in another county, was but surplusage, and needed not to have been inserted, which doth not cause her count to abate. And in this case the woman appellant shall recover nothing but the defendants death for the felony, which she shall obtain in respect of his ravishment of her in the county, whereunto he forcibly carried her, wherein only the felony was committed. Appeal of Robbery. 39 By the same reason if a man do take another by force in one county, 3. H. 7. 12. and then carry him into another county, and there rob him, or kill him: an appeal of felony shallbe commenced only in the county where the robbery or murder was done: for the taking, and carrying him away out of the first county was but trespass, and there was no felony committed, until the robbery or murder was committed. Threatening in one county to bring money into another. 40 If one man do threaten another in one county that he will kill him if he do not bring him a sum of money into another county such a day: 44. E. 3. 14 4. H. 4. 3. In this case, if he that is threatened, do in respect of that menace, carry, and pay the said sum of money to him that threatened him, according to his promise in the said other county: this is robbery, though the party needed not to have paid the said money according to his promise, for that his said promise was by menace, and not voluntary, nor upon cause. And there is reason that the appeal of robbery shallbe commenced in the county where the money was paid, and not in the county where the menace was made: for the effect and success of the matter maketh it felony, which is the payment of the money; and not the first cause, which was the threatening. Goods rob carried into divers counties 41 If a fellow commit a robbery in one county, 7. H. 7. 44 4. H. 7. 5. and then carry the goods stolen into divers other counties, he that is rob may have his appeal of felony in which of those Counties he will: for the fellow committeth felony in every of the Counties, Co. li. 7. 2. 26. As. p. 32. whither he carrieth any of the goods: And in which of those Counties the party rob doth commence his Appeal of Felony, there it shall be tried: for the property of those goods was always in the first and right owner of them. But he that is rob may commence his Appeal of Robbery only in that County where he was rob, for there is no robbery done but in that County only. But if a man being in one County, do procure another man to commit a robbery in another County, 29. H▪ 8. Dyer 40 which he doth accordingly: in this case the party rob shall have his Appeal of Robbery against the said procurer, as accessory to this felony, in the County where the procurement was, and not where the robbery was committed; for there was his felony committed, where he did persuade and procure the robbery to be done. 42 He that may pursue an Appeal, is at his choice, whether he will have it by writ, Britton. or by bill. If he pursue it by bill, Before Whone an appeal shallbe brought. than he must find to the Sheriff in the full County, two sufficient pledges, being of the County where the felony was committed, and distrainable within the said County, that he shall prosecute his Appeal according to the law of the Realm, and he shallbe thereunto received. And then the Coroner shall enter his Appeal, and the names of his pledges: 22. As. p. 97. and after the Bailie of the place where the felony was committed, shall be commanded, that he shall bring the bodies of those that be appealed, to the next County Court, to answer to the plaintiff. And if the Bailie do answer at the second County Court, that he cannot find them, than it shall be ordained, that they which be principal Appellees of the fact, shall be solemnly commanded to yield to the King's peace, and to appear, and stand to the answer of such a felony, whereof they be appealed: And so they shall be demanded from County to County, until they do appear, or be Outlawed. And yet because the Statute of Magna Charta hath ordained, That no Sheriff, Constable, St. 9 H. 3. 17 Escheator, Coroner, or other bailiff of the Kings, shall hold plea of the Crown, It is agreed for law, that upon an Appeal commenced before the Sheriff and the Coroners, although they may award process against the appellees until the Exigent, yet they cannot award the Exigent against the appellee, if he do not appear: neither if he do appear, they can cause him to answer, but only they may commit him to prison, and that by force of the said statute of Magna Charta. 43 When an appeal is commenced before the Sheriff and the Coroners in the county, it may be removed into the King's bench by a Certiorari, Removing an appeal out of the county. which must be awarded out of the Chancery, or out of the King's bench, and is to be directed to the Sheriff and the Coroners: which proveth that an appeal is begun, and of Record, as well before the Sheriff, as before the Coroners: according to the Statute of West. St. 3. E. 1. 10 1. which hath ordained, That the Coroners shall lawfully attach, and represent the pleas of the Crown, and that the Sheriff shall have counter-rolles with the Coroners, as well of appeals as of Inquests, of Attachments, or other things that do belong unto this office. And therefore a Certiorari to remove an appeal directed to the sheriff only is void: 4. H. 6. 15 and an appeal of murder may be commenced, as well before the Sheriff, as before the Coroners, as it is proved by these words of the Statute of 3. H. 7. St. 3. H. 7. 1 viz. The wife or heir of the person slain, or murdered, as case shall require, may commence their appeal in proper person, at any time within the year after the felony done, before the Sheriff and Coroners of the County, where the said felony and murder was done, or before the King in his Bench, or justices of jail delivery. 44 An appeal by Bill may be commenced before justices of jail delivery: An appeal before justices of jail delivery. but then the appellee at the time of the Appeal begun against him, 13. H. 4. 10. 9 H. 4. 2. must be prisoner in the same jail, whereof those justices are to make delivery, or else such an appeal is not to be received: Or otherwise one of them at the least, against whom and others the said appeal is entered, aught to be prisoner in the same jail, and if not, the same appeal is void. S. Approvers 19 St. 28. E. 1. 9 H. 4. 2. Yet an approver may appeal others that are not in prison, but at large: which is by force of the statute of 28. Ed. 1. de Appellatis. And when an appeal is commenced before justices of jail delivery against divers, whereof there is but one in prison before them, this appeal ought to be removed into the King's bench by a Certiorari, and from thence process shall be awarded against them which be at large. Anno 1. M. Dyer 99 And justices of Assize may hold plea of appeals of robbery, An appeal before Iu. of Assize. by the commission of jail delivery. An appeal before the I. of the Kings Bench. 45 As well as justices of jail delivery, and the Sheriff and Coroners have authority to receive an appeal by Bill, 17. Ed. 3. 13 in like sort justices of the king's bench have power to accept an appeal by Bill: for they be the sovereign coroners of the Realm. Appeal against one Bailed. 46 If one be in prison for felony in the King's bench, 21. H. 7. 33. 32. H. 6. 4. or before the justices of jail delivery, and after let to bail, yet an appeal by bill may be commenced against him, for he is a prisoner notwithstanding that bailment: for they which took him in battle, be his guardians, and shall be charged if he escape: & some do affirm that they may imprison him; and some do hold, that they shall be hanged for him. And upon his bailment he shall find sureties to answer to all persons. No appeal against him that is let by mainprize. But an appeal is not to be pursued against him, 9 Ed. 4. 2. 39 H. 6. 27. who is let at liberty by mainprize: for that he is not in ward. No appeal before justices of peace. 47 Some do affirm that an appeal may be commenced before justices of peace, for they have authority by their commission, 44. E. 3▪ 44. and by the Statute of 18. Ed. 3. 2. to hear and determine felonies. But others do hold, that they must only proceed upon indictment found by a jury before them, and not upon an appeal prosecuted at the suit of the party grieved: for the words of their commission be, Ad inquirendum per Sacramentum proborum & legalium hominum de comitatu praedicto, per quos rei veritas melius sciri poterit, de omnibus & omnimodis felonijs etc. Et ad omnia & singula felonias etc. indictamenta praedicta, caeteraque omnia & singula premissa, secundum leges & statuta regni nostri Angliae (prout in huiusmodi casu fieri consuevit aut debuit,) audiendum & terminandum. By which words it is to be inferred, that they shall inquire and punish at the King's suit upon indictment, and not at the party's suit by appeal, such felonies as shall be committed within their jurisdiction. 48 If one of the King's subjects do kill another of his subjects in a foreign Realm, the wife or next heir of him that was slain, as the case requireth, An appeal before the Constable and Martial. may have an appeal of the same death in England, before the Constable & Marshal of England, St. 1. H. 4. 14 by force of the Statute of 1. H. 4. which doth ordain, That all appeals of things committed within the Realm, shall be tried and determined by the laws of the Realm; and of things committed out of the realm, before the Constable and Marshal of England for the time being. And no appeals fromhenceforth shallbe made or pursued in Parliament. No appeal in Parliament. Bracton. Britton. 49 It doth appear by Bracton and Britton, Where there shallbe divers appeals for one felony, and where not. that one might have had in former ages, one appeal against the principal, and another against the Accessories: but since that law is changed, viz. The appellant shall have but one appeal, Co. li. 4. 47. in the which he must comprehend as well the principals as the accessories, unless it be in special cases: and that is confirmed by the Stat. of West. 1. St. 3. E. 1. 14 which doth ordain, That no person shall be outlawed upon appeal of commandment, force, aid, or receipt, until the principal be attainted. But the appellant shall not let to attach his appeal at the next county, as well against the accessory, as against the principal: But the Exigent against the accessory shall stay until the principal be attainted, by outlawry or otherwise. 9 H. 4. 1. 50 In an appeal against two, if one do appear, One only appeal for one felony. and the other make default, yet the plaintiff shall count against them both: and the same law which compelleth the appellant to count at one time against them both, doth enforce him to sue his appeal against them both: for if an appellant do bring an appeal against one person, Co. l. 4. 47 and the appellee is attainted and hanged at his suit, and after he will bring an other appeal against one, or two others, for the same offence, he shall take no benefit by his suit, for he should have joined them all in his first appeal. 47. E. 3. 16. And the same law is, if the first appellee had been acquitted, or that the appellant had been Non, suit after appearance. 51 It seemeth that in some cases at this day, one may have divers appeals for one felony: Where divers appeals for one felony. as if one in one county do procure another to rob a man in another county: In this case, the party rob shall have one appeal against the principal in one county, and another against the accessory in another county: or otherwise he should be without his remedy against the accessory by Appeal. St. 2. & 3. E. 6. 24. But by the Statute of Anno 2. & 3. E. 6. if one in one county do procure another to kill a man in another county, he to whom the appeal of murder is given, shall commence his appeal in the county where the party shall die. S. Br. 37. 26. Ass. p. 52 Co. li. 4. 48. 52 And so it is, Two appeals founded upon one felony. if the Appellant do commence his appeal against the principal within a year and a day after the felony committed, and after the said appeal commenced, another will receive the same fellow: In this case the appellant may pursue another appeal against the said accessory, for these two be several felonies, which began at several times. S. Br. 35. Robbery of several parcels of goods. 53 If a man be rob of two several parcels of goods at one time, he cannot have two several appeals for them, and put parcel of the goods rob in one appeal, and parcel in another: Fit. Cor. 100 but he must commence one appeal for the whole, or for parcel. And if he do bring his appeal but for parcel, he shall lose the residue of the goods rob, and the king shall have them, for he cannot enlarge his appeal. Where one shall answer to divers appeals or indictments. 54 If one man rob several men, every of the persons rob may have an appeal against the fellow. And although he be attainted at the suit of one of them, yet he shallbe tried at the suit of the others, upon their appeals, if it be so that they have commenced their appeals before the said attainder. 4 Ed. 4. 11. 7. H. 4. 31. Fi. Cor. 379 And if he be found culpable at their several suits, and that they have made fresh suit, they shall have their goods again which were taken from them by robbery, as well as he shall, at whose suit he was first attainted. 4 Ed. 4. 11 And those last Inquests shallbe taken at the suit of the parties, and not be adjudged Inquests of office. But if the other who have cause of appeal, do not commence their appeals, until the appellee be attainted, at the suit of the first appellant, and that in the same county where they ought to have prosecuted their appeals, after such attainder, they shall not be received to commence them. But yet, Fi. Cor. 227 M. 10. H. 4. if after such first attainder the king will grant to the party attainted his pardon, than he shall answer to the said appeals so commenced against him after his Attainder: yea and for the King's advantage, a man attainted of felony, shall answer to an offence committed before any pardon was granted unto him. 1. H. 6. 5. As a man being attainted of felony, shallbe put to answer to a treason before committed, because in that case the King is to have the Escheat. But in an appeal of murder, or rape, the law doth differ from the before mentioned case of appeal of robbery: for if in appeal of murder or rape, the offendor be attainted at the first appellants suit, he shall not be put to answer to other appeals brought after for murder or rape, though they were commenced before the appellees attainder: seeing the appellants are not to have any restitution of goods, or other benefit thereby, but only the attainder of the appellee, which is already attainted at the first appellants suit, and so to be hanged therefore. Answer to divers indictments. 55 As several persons upon their several appeals commenced shall have restitution of their goods stolen or rob from them by one man; so by the statute of ann 21. H. 8. St. 21. H. 8, 11 a man shall have restitution of his goods rob or taken from him, upon the indictment and arraignment of the offendor, and evidence given against him, by the party rob, or owner of the goods, or by some other by his procurement: Therefore if one man do rob or steal goods from three men severally, and he is indicted of the robbing or stealing from one of them, & arraigned thereupon: In this case, though the other two would give evidence against the offendor, yet they shall not have restitution of their goods by the intention or meaning of that stat. for the fellow is not attainted of any other robbery or felony, saving of that whereof he is indicted. But if he be indiced of all the three robberies or felonies severally, and arraigned upon one of them, and found guilty by the evidence given by one of the parties rob or &c. yet he shallbe after arraigned upon the other two inditements, to the intent that he may be also found guilty by the evidence of the other two persons rob or &c. & that they may have their goods stolen again, according to the meaning of the foresaid statute. S. Restitution 4. 56 Whereas by the common laws of this Realm, He that is allowed his clergy shall answer to former offences. and also by the stat. pro Clero, St. 25. E. 3. 5 made an. 25. E. 3. no clerk arraigned of felony before a secular judge, which was demanded by the Ordinary of the place, should be remanded to the jail, but ought presently to be arraigned of all his offences, or otherwise delivered to the Ordinary: But because divers persons did ofttimes commit and do sundry detestable murders, heinous robberies, and felonies, and other capital offences, for the which clergy is not allowable by the laws and statutes of this realm; and after the same offences so done, either did fly out of the county, or other parts of this realm, into the parts beyond the seas, or keep themselves secret in other places, whereby they were not known for a great time, and after did commit some other felony, for the which they might have their clergy, and being arraigned of the same, had their clergy to them allowed, & thereupon were committed to the custody of the Ordinary, according to the law and custom of this realm, the former offence, wherein clergy was not grantable, being than not known, and so by that means could not after be impeached for the said other horrible and great offences, by the law and custom of this realm, to the great encouraging of offenders, using such practices of foreknowledge and set purpose, for the discharge of the same: Therefore for the reformation of the premises, St. 8. El. 4. by the stat. of an. 8. Eliz. it was enacted, That every person which shall upon his arraignment for any felony, be admitted to his clergy by the laws of this realm, & shall before the same admission have committed any other offence, whereupon clergy by the laws & stat. is not allowable, and not being thereof before indicted & acquitted, convicted or attainted, Appeal of former offences. or pardoned, shall & may be indicted or appealed for the same, and thereupon ordered and used in all things according to the laws, in such manner, as though no such admission of clergy had been. St. 18. El. 6. 57 And after, viz. an. 18. Eliz. a more general stat. was made, A Clerk shall answer to former offences. That all and every person & persons which shall hereafter be admitted to have the benefit of his or their clergy, shall notwithstanding his or their admission to the same, be put to answer to all other felonies, whereof he or they shallbe hereafter indicted, or appealed, and not being thereof before acquitted, attainted, convicted, or pardoned, & shall in such manner and form be arraigned, tried, adjudged, and suffer such execution for the same, as he or they should have done, if as clerk or clerks convict, S. Indict. 52. they had been delivered to the Ordinary, & there had made his and their purgation. Britton. 58 If a man commence his Appeal of death before the Coroner in the county, presently the Sergeant of the county shallbe commanded, The process in Appeal. that he bring the bodies of the apellées to the next county, to answer the plaintiff. And if the said Sergeant do answer at the second county, that he cannot find them, Process upon Appeal before the Coroner. then an Exigent shallbe awarded against the principals. But the Exigent touching the accessories shall stay, until the principals be outlawed. And so it appeareth by Britton, 22. Ass. p. 81 Fi. Cor. 234 Fitz. Process 226. & some other authority, that an Exigent shallbe awarded in Appeal of death commenced before the coroner in the county, after the first Capias returned. Fitz. Process 226. Fitz. Cor. 184. St. 25. Ed. 3. 14. 59 But in an Appeal or Indictment of robbery, or other felony, Process upon an Appeal or Indictment of felony. there shall be two Capias awarded before the Exigent. And the same is confirmed by these words of the stat. de proditionibus, made 25. E. 3. viz. It is agreed, that after any man be indicted of feloni, ebefore the Iust. to hear and determine, in their Sessions, the Sheriff shallbe commanded to attach his body, by a writ or precept called Capias. And if the Sheriff return in the said precept, that the body is not found, another writ or precept of Capias shall incontinently be awarded, returnable three weeks after, and in the same writ or precept it shall be comprised, that the Sheriff shall cause to be seized all his chattels, and safely keep them until the day of the writ or precept returned. And if the Sheriff return, that the body is not found, and the indictee cometh not, S. Forf. 44. the Exigent shallbe awarded, and the chattels shallbe forfeited, as the law of the crown commandeth. But if he come and yield himself, or be taken by the Sheriff, or other minister, before the return of the second Capias, than the goods and chattels shall be saved. This statute doth not make mention of the death of a man, nor of robbery, but of felony generally, which includeth all. And yet some do affirm, that it was intended to be made only for robbery and larceny; Fitz: Process 226. but it is provided for those which be indicted before Iust. to hear and determine, and not for those against whom an Appeal is commenced before the Coroner: and it was rather ordained to seize the felons goods upon the second Capias, than to give process. Process against indictees in another county. 60 And because some persons appealed or indicted of divers felonies in one county, or outlawed in the same county, were dwelling or received in another county, whereby such felonious persons indicted and outlawed, have been encouraged in their mischief, for that they might not be attached in another county: for the redress whereof, by a stat. made anno 5. E. 3. it was ordained, St. 5. E. 3, 11 That the Just. assigned to hear and determine such felonies, shall direct their writ to all the counties of England, where need shall be, to take such persons indicted. 61 Because divers persons for their singular revenge, and not of right, maliciously, of their subtle imagination, have caused and procured, falsely to indict and appeal several of the King's subjects, of divers, treasons, felonies, and trespasses, before I. of peace and other commissioners, & other Iust. having authority to take indictments or appeals, in divers foreign counties, liberties, and franchises of England, wherein the said liege people neither be, nor ever were conversant or dwelling: By force of which appeals and indictments, and the processes thereupon made in the said counties, franchises, and liberties, the said persons so indicted have been put in Exigent, and after outlawed, and thereupon their goods and chattels, lands and tenements have been forf. and they in great peril of their lives, whereas the said persons so indicted, appealed, or put in Exigent, or outlawed, had never knowledge of such indictments, appeals, Exigents, or Outlawries: For the prevention whereof, it was ordained by the stat. of an. 8. H. 6. St. 8. H. 6. 10 That upon every indictment or appeal, by the which any of K. liege people dwelling in other counties Appeal of indictments of persons dwelling in foreign Counties. than there where the indictment or appeal shallbe taken, of treason, felony, & trespass, before I. of peace, or any other having power to take such indictments or appeals, or other Commissioners or justices in any county, franchise, or liberty, within England, before any Exigent awarded, upon any indictment or appeal to be taken in form aforesaid, immediately after the first writ of Capias, upon every such indictment, or appeal, awarded and returned, another writ of Capias shallbe awarded, directed to the Sheriff of the county, whereof he which is indicted is or was supposed to be conversant by the same indictment, returnable before the same justices or Commissioners, before whom he is indicted or appealed, at a certain day, containing the space of iij. months, from the date of the said last writ: by the which writ of second Capias, it shallbe contained & commanded to the same Sheriff, to take the body of him which is so indicted or appealed, if he may be found within his bailiwick: & if he cannot be found within his bailiwick, that the Sheriff shall make proclamation in two counties, before the return of the same writ, that he which is so indicted or appealed, shall appear before the same Iust. or Commissioners, in the county, liberty, or franchise where he is so indicted or appealed, at the day contained in the said last writ of Capias, to answer to the K. or to the party, of the felony, treason, or trespass, whereof he is indicted or appealed: After which second writ of Capias so served and returned, if he which is so indicted or appealed, doth not come at the day of the said writ of Capias returned, the Exigent shallbe awarded against such indictees or appellees, and every of them. And if any Exigent be awarded upon any such indictment, or appeal, against the foresaid form, or any outlawry thereupon pronounced, the said Exigent and the outlawry thereupon pronounced, and every of them shall be void. And the party against whom such Exigent is awarded, or outlawry pronounced, against the foresaid form, shall not be endamaged in his life, lands, goods, etc. And every one which is indicted or appealed in form aforesaid, after he is acquitted by verdict, in form of law, may have an action upon the case, against every procurer of such indictments or appeals: in which action there shallbe like process as in an action of trespass vi & armis. And if the said procurers be attainted, the plaintiff shall recover triple damages. But this stat. extendeth not to indictments or appeals taken in the county of Chester: Nor to any indictment or appeal of felony or treason, taken of any of the K. liege people, which at the time of the same felony or treason supposed, is, and was conversant within the county, whereof the indictment or appeal maketh mention, but the like process shallbe made against such indicted or appealed person as hath been used. 62 And because after the making of the said Statute of Anno 8. H. 6. some intending to defraud the said Statute, did sue to remove such appeals and indictments, out of the hands of the justices or Commissioners aforesaid, into the King's bench, and elsewhere, by Certiorari, or otherwise, unknown to the party so indicted, and thereupon sued the process used at the common law before the making of the said Statute, in the King's Bench, and elsewhere, after the removing thereof, to the great impoverishment of divers the king's subjects: Therefore by the Statute made Anno 10. H. 6. St. 10. H. 6. 6 it was enacted, Process upon an indictment or appeal removed into the K. bench. That if any such indictments taken before any justices of peace, or any other having power to take such indictments or appeals, or other justices or Commissioners, in any county, franchise, or liberty of England, shallbe removed into the King's Bench, or elsewhere, by Certiorari, or otherwise, then after such removing, before any Exigent awarded upon any such indictment or appeal, in form aforesaid taken, immediately after the first writ of Capias, upon every such indictment or appeal awarded and returned, another writ of Capias shall be awarded, directed to the Sheriff of the county, whereof he that is indicted or appealed, is, or was supposed to be conversant, by the same indictment or appeal returnable in the K. Bench, at a certain day, containing the space of three months, from the date of the said last writ of Capias, according to the manner and form that the I. of peace and others ought to have done before such removing. And if any Exigent be awarded upon any such indictment or appeal after such removing, against the form aforesaid, or any outlawry thereupon pronounced, as well the same Exigent as the outlawry, and every of them, shallbe voided. In the Appeal he must be supposed to be of a foreign County. 63 The foresaid stat. of 8. H. 6. doth not take place, St. 8. H. 5. 10. but where by the Appeal or by the Indictment it is precisely supposed, that the defendant was dwelling in a foreign county: for if he be supposed to be dwelling there by an Alias dictus, it is out of the compass of the stat. 1. E. 4. 1. As in an appeal or indictment in the county of Middlesex against A.B. in comitatu tuo yeoman, alias dictum A.B. de C. in comitatu Sussex yeoman: Because that which is supposed by the Alias dictus is not traversable, nor material. And likewise it is in an appeal or indictment against I. of S. in comitatu H. nuper de L. in comitatu K. nuper de R. in come T. An appellee dwelling in no place certain. 64 If a man be appealed to be dwelling in no place certain the day of the Appeal commenced, but in this manner, Fitz. Process 192. viz. nuper de S. in comitat' L. and nuper de B. in comit' T. then process shallbe awarded into all the counties whereof he is so supposed to be of late dwelling. Process into a County Palantine. 65 The foresaid stat. of 8. H. 6. hath ordained, That after the first Capias, St. 8. H. 6. 10 another Capias shallbe awarded to the Sheriff of the county whereof he which is so indicted is, or was supposed to be dwelling by the same indictment. And therefore if an appeal or indictment be exhibited against one in the county of M. naming him of D. in the county of Chester, or of some other place, which is a county Palantine: In this case, no process can be awarded upon this Stat. which may be directed to the Sheriff, according to the words of the Statute. But process shallbe awarded upon this statute to the prince, or his lieutenant: 19 H. 6. 2 31. H. 6. 11. for it is in like mischief, and the statute is general in all the Realm, which doth bind as well those which be of a County Palantine, as others. But if they of the County Palantine will not serve, and return the writ directed to them upon this statute, then without further delay the Exigent shall be awarded, otherwise the party should be infinitely delayed. Process against principal & accessary 66 The foresaid Process specified in the before rehearsed stat. of 8. H. 6. shall extend as well to accessories, as to principals, saving that the Exigent as to the accessories, shall be stayed until the principals be outlawed: And that by the Statute of West. 1. the words whereof be these. St. 3. E. 1. 14 Because men have used in some counties to outlaw such persons as be appealed of commandment, force, aid, or escape, within the same term that they do outlaw him which is appealed of the fact, it is ordained, that none shallbe outlawed for an appeal of commandment, force, aid, or receipt, until he that is appealed of the deed be attainted, so that one law shallbe thereof through the whole Realm. But the appellant shall not let to attach his appeal at the next county against them, as well as against the appellees of the deed. But the Exigent against the Accessory shall stay until the appellee of the deed be attainted by outlawry, or otherwise. And Britton Britton. doth affirm, That as soon as the principals be outlawed, the Exigent shallbe awarded against the accessories. St. 3. E. 1. 14 67 The before rehearsed statute of West. 1. seemeth only to extend to Appeals commenced by bill: The stat. of W. 1. extendeth only to Appeals commenced by bill. for in an Appeal commenced by writ, it appeareth not until the declaration made thereupon, that there be any accessories in the Appeal, but, for any thing contained in the writ, all do appear to be principals, 43. Ed. 3. 17. and for that cause the Exigent is awarded against them all at one time. And therefore the plaintiff must be advised, how he doth pray the Exigent, and against whom: for if he do pray the Exigent against them all, he is thereby concluded after to count against any of them as accessories: for the law intendeth that he must take knowledge which were accessories, and which not. And therefore in that case he should have stayed the demanding of the Exigent against them, until the principals had been attainted. And that is the difference between the principals and the accessories, as touching the time of the awarding of the Exigent. 68 If an Appeal be brought against divers, and one doth appear & plead, In Appeal one doth appear, and another makes default. yet process shall be continued against the residue. But if he which appeareth doth plead in abatement of the Appeal, or matter in bar, which proveth that the Appeal doth not lie: in those cases the court shall stay the awarding of the Exigent against the others, until the court be advised whether the Appeal will lie or not: 9 H. 4. 2. for if the Appeal do abate, it doth abate against them all, as well principals as accessories. 69 The process to remove an Appeal out of the county, Process to remove an Appeal. or from the justices of jail delivery, is a Certiorari awarded out of the Chancery, or the K. Bench, 10. H. 4. 4. and it may be sued as well by the def. as the plaintiff: which Certiorari must agree with the Appeal or the Indictment that is to be removed: for if the Appeal or Indictment be of two horses, 3. Ass. p. 3. and the Certiorari is but of one, this is no good writ. 4. H. 6. 15. Register. Ind. fo. 76. 70 If an Appeal be attached within the county, Certiorari into the County. before the Sheriff & the Coroners, the Certiorari must be directed to them both, viz. as well to the sheriff as to the coroners, for a Certiorari directed to the sheriff only, is void. 71 After an Appeal is removed, Process against the p●● after an Appeal removed. the parties be without day before the sheriff & the coroners. And therefore if the plaintiff do not proceed with his Appeal in the K. Bench, yet he shall not be nonsuit thereby, until a Scire facus be awarded against him, and that he be thereupon returned warned, and doth make default: for if a Nihil be returned upon him, an Alias shallbe awarded against him before he shallbe nonsuit: upon which writ, if at another time a Nihil be returned, 48. E. 3. 32. another Scire facus shallbe awarded, returnable at a certain day, and in the mean time the appellee shallbe let to mainprize. 72 After an Appeal is removed, if the plaintiff pursue his Appeal, Process against the def. after an Appeal removed he need not sue a Scir facus against the def. if he do make default, but a Capias & Exigent. And if the defendant doth appear and plead, and after at another day maketh default (either because he is escaped out of prison, or being let to mainprize doth not appear) yet the inquest shall not be taken in his default, nor in any case of Felony. But Process shall be awarded against him ad audiendum judicium, in such manner, that if he come not at the beginning by the Exigent, 16. Ass. p. 13 then Exegi de novo shallbe awarded, 26 Ass p. 51 Fitz. Exigent 1●. by the which the Sheriff shallbe commanded to take him, if &c. to hear his judgement. And if not etc. that he be outlawed. But if he do not come at the first by Capias, than a Capias de novo shall be awarded, and after the Exigent, or another Capias, according to the nature of the offence, whereupon the appeal is grounded. Process against one that by the Sheriffs return is escaped. 73 A woman brought an Appeal against another of the death of her husband: 30. Ass. p. 23 upon process awarded against the appellee the Sheriff returned Cepi corpus, and at the day had not the body, whereupon he was amerced, and also was commanded to bring the body, and so twice or thrice, and did nothing: whereupon the plaintiff prayed an Exigent, affirming that the prisoner escaped, as the Sheriff was carrying him to the jail: But the justices would not award the Exigent against one, which appeared to them to be in prison: And therefore they sent to the Sheriff to have the body, & if he returned this escape, than the plaintiff should have his request, and not otherwise. Process with a proviso for the appellee. 74 In an Appeal, if the parties be at issue, 15. H. 7. 9 and the plaintiff will not sue forth process against the inquest, in that case the defendant may sue forth process with a proviso, as well as he may in other actions: which writ when it is returned served, the plaintiff may pray a Tales, notwithstanding that the Venire fac ' was pursued by the defendant, and shall have it by common course, whether the defendant do agree thereunto or not. Process to remove prisoners or records. 75 By the Statute of Anno 1. & 2. P. & M. it is ordained, St. 1. & 2. P, & M. 13. That no writs of Habeas co●pus, or Certiorari shallbe granted to remove any prisoner out of any jail, or to remove any Recognisance, except the same writs be signed with the proper hands of the chief Iust. or in his absence, of one of the Iust. of the court, out of the which the same writs shallbe awarded or made, upon pain that he which writeth any such writs, not being signed as aforesaid, shall forfeit to the K. for every such writ v. l. How the appellee shall be led to the bar. 76 He that is appealed or indicted of felony, and imprisoned for the same, Bracton de Corona, cap. 18. Britton. when he cometh before the justices to the place of judgement, to answer for the same felony, shall come bare headed, lose, at liberty, without any irons or bonds (saving with shackles about his legs, for fear of escaping) so that no pain shall take away or weaken his reason to defend himself, nor constrain him to make any other answer, but such as best standeth with his own free will. Count in Appeal. 77 When the appellee is at the bar to answer to the Appellant, the Appellant must count or declare against the appellee, the which count doth vary according to the variety of Appeals; for some be of death, some of rape, some of robbery, and some other of other felonies. The form of Appeal of Murder is in this manner: An Appeal of Murder. A. hic instanter appellat B. de morte C. fratris sui, de eo quod cum praedictus C. fuit in pace Dei, & Domini Regis apud D. tali die, hora, & anno, ibi venit B. ut felo domini regis in assultu praemeditato, vi & armis etc. & in ipsum C. felonicè adtunc & ibidem insultum fecit, & cum quodam gladio precij xii. d'. quem ipse in manu sua dextra adtunc & ibidem tenuit, praedictum C. super caput suum percussit, et unam plagam mortalem, in longitudine duorum pollicium, in anteriore part capitis sui, usque ad cerebrum, eidem C. adtunc & ibidem felonicè dedit: de qua quidem plaga praedictus C. per tres dies proxime sequentes languebat, & tunc ibidem obijt: vel immediate ibidem obijt. Et sic ibidem B. ut felo domini Regis praedictum C. felonice interfecit, & murdraverit, contra pacem dicti domini Regis, coronam, & dignitatem suas, & quod hoc fecit nequiter, & ut felo, contra pacem Dei & Domini Regis, praedictus A. offered hoc dirationare, prout curia Domini Regis hic consideraverit. And so it appeareth, that the ancient Law in divers points touching Appeals is changed by the statute of Gloucester Ann. 6. Ed. 1. which hath ordained, St. 6. Ed. 1. 9 That if the appellant in appeal do declare the deed, the year, the day, the hour, the time of the king, and the Town where the deed was done, and with what weapon he was slain, the appeal shallbe of force. The year, day, hour, time of the king, and the town material. This statute maketh the year, the day, the hour, the time of the king, and the town, things material; Bracton. and that upon good cause: For if the appellee can prove by certain demonstration, and the testimony of credible persons, that he was the same day in another place, so that by no means it can be presumed, that he was present the same day at the committing of that fact, in respect of the great distance of the place, than the appellants suit shall fail. And the same reason is of the hour: if for he that is supposed to kill the man, was twenty miles from that place where the deed was done, the same hour wherein that murder was committed, he cannot be guilty of that fact, and yet it may be he was there sometimes the same day, but not that hour: Where the hour may be left out. But a man is not of necessity compellable at this day by the common law, to put into his declaration the hour. Stamf. which declaration by the common law any man may yet make, notwithstanding the foresaid stat. of Gloucester, because the same statute doth not forbid it, for it is in the affirmative. 78 The plaintiff is to make special care, The place where the fact was done. that he put into his declaration the place where the fact was done, for the said statute of Gloucester doth specially command it by express words. And therefore if an appeal be brought against divers, 21. E. 4, 25. naming them of several Towns, or Villages, and after in his Count he will say, at the place aforesaid, this is not good, for no man can tell to which of the places aforesaid, to refer it: and seeing there be divers of them in number, he ought to express the place by name, or otherwise it is not good. If a man be stricken mortally in one place, whereof he dieth shortly after in another place, Co. lib. 4. 42 the appellant must count in his appeal, that the def. did commit the murder in the place where the party died, and not in the county, town, or place, where the stroke was given. 44. E. 3. 38 79 There be divers other forms of declarations in appeals of death: as in appeal of death against three as principal, Count in appeal of death against three as principals. and the appellant doth count, that such a day and such an hour one of them did strike her husband (of whose death she doth bring the appeal) in the neck, whereof he died: and the same hour another did strike him to the heart: so that if he had not died of the first blow, he would have died of the second: and that the third did strike him in another part of his body, and so count severally against them, that every of them gave him a mortal wound, and show the manner of the wound, according to the fact: for the statute of Gloucester doth ordain, That he shall count of the fact, The fact must be declared. and according to the difference of the fact the count in an appeal shall differ, for of necessity the fact must be declared as it was done, or as the law doth expound it to be done. And therefore, 21. E. 4. 71. 4. H. 7. 18 if two be present at the death of a man, and one doth not strike him, but commandeth the other to strike him, in regard whereof he doth kill him, in this case, in an appeal against them, the appellant shall count, that either of them did strike him mortally: and in like sort, in an appeal of Rape against two, where one was present, 11. H. 4. 13 Fit. cor. 228 & did abet the other to ravish the woman, in that case the count shallbe, that they both did ravish her, for in that one there was the ravishment of them both. Count in appeal of Robbery. 80 In an appeal of death, as cousin and heir, 45. E. 3. 25 27. Ass. p. 25 the appellant must show in his count, how he is cousin: and in appeal of Robbery, he must express the things rob: as whether they were his own goods, or another man's: Bracton. and if it were in money, he must show how much, and what kind of money: if it were bullion, the value: if it were coined, the quality and the price: if it were a garment, the colour, and the price: if it were Cloth, the colour, price, and number of else: if it were cattle, the kind, the colour, and price: and in an appeal of Rape, he must count of the tearing of garments, and shedding of blood. Where in appeal of Rape the stat. must be rehearsed in the count. 81 There be two appeals of Rape, St. 13. E. 1. 34 St. 6. R. 2, 6 one upon the stat. of West. 2. which maketh it felony to ravish a married wife, maid, or other woman: and another upon the stat. of 6. R. 2. which giveth the forfeiture, where the woman ravished doth consent, and assigneth who shall prosecute the suit against the ravishers. In an appeal brought upon the stat. of Westm. 2. the appellant need not rehearse the statute. But otherwise it is in an appeal brought upon the stat. of 6. R. 2. for there he must rehearse the statute in his count: and if in appeal of Rape brought upon the said stat. of 6. R. 2. the plaintiff do count, 11. H. 4. 13 that the defendant did ravish his wife, contrary to the form of the said statute, he shall not need to allege, that his wife did consent to the ravisher: 14. El. Dyer 312. for that is implied in those words, contra formam statuti, which words be in the declaration: and although there be not in the declaration these words, viz. carnaliter cognovit, yet if there be these words, viz. felonice rapuit, they do imply the other words: for it can be no felony, if there be not carnal knowledge: and so it is to be noted, that in felony a count may be by implication. S. Felonies by Statute 2. 82 The defence which the appellee Defence in appeal. is to make in an appeal is, viz. 44. E. 3. 38. That he doth defend all manner of Appeals, Awaights, Assaults, Pretences, & whatsoever is against the peace of the King, his Crown, and Dignity, and to say, that he is not guilty. Bracton Bracton. writeth, That he which is appealed of the deed, doth come and defend all manner of felony, and that the peace of the king is not broken, & whatsoever is against the K. peace, and the death, & whatsoever is objected against him: and that he doth put himself upon the country, of good and evil, that he is not guilty thereof, if he do choose the country: Or that he is ready to defend himself by his body against the appellant, as the king's court shall consider: for if he will simply say, that he will defend himself as the king's court shall consider, unless he will say more he shall not be defended: for the king's court must not instruct him, in what manner he ought to defend himself: and if he do say, that he is ready to defend himself either by his body, or by the country, as the king's court shall consider, he seemeth thereby to take from himself election: And the king's court ought not to compel him to the one, more than to the other, nor to enforce him how he shall defend himself, seeing he hath free choice: and therefore he must hold him to one of them: But if he make his election to be tried by the country, it shall not be in his choice what country he will take. Fi. Cor. 121 83 A writ of Appeal shall abate for false Latin, or for lack of form: Pleas to the writ in appeal as in a writ of Appeal this word Habeas did want, and therefore the appeal abated, without amendment. In an appeal brought against a principal and accessory of the death of A. B. of C. in the County of D. the accessary pleaded, 18. El. Dyer 348. that there was no such A. B. at the time of the writ brought, neither was there ever any such, as the writ supposeth, and demanded judgement of the writ: and this was adjudged a good plea, in abatement of the writ, if there were no such A. B. in the said County of D. though there was one at that time of the name of A. B. in another County: Or if the said A. B. died before this appeal commenced. 84 In an appeal of Rape the writ shall be, The form of the writ of appeal of Rape. ad respondendum appellanti secundum formam statuti, quare uxorem suam rapuit, and not unde eum appellat secundum formam statuti: because the statute doth not give the appeal: for the appeal was at the common Law: but he ought to answer according to the Statute, to this intent, that he shall not wage battle: for the Statute saith, St. 6. R. 2. 6 Ad duellum vadiandum minimè recipiatur. And though in his writ of appeal of Rape, he doth not use these words felonicè Rapuit, yet is the writ good, notwithstanding that, for in this word Rapuit, felony is implied. If in an appeal of Rape the writ hath not this word Rapuit, 3. Eli. Dyer 202. it shall abate, Rapuit material. although it hath words amounting to the same effect, as carnaliter cognovit, & such like. S. Felony by Statute 4. 7. H. 7. 6 Co. li. 4. 47. 85 One shall not have divers writs of Appeal, Not two appeals for one offence against one person. depending at one time against another, of one felony. But yet before the writ be abated, it is requisite, that the court be satisfied, that both those writs were pursued by the plaintiff, which must be proved by some act that the plaintiff hath done, as if he hath appeared to them both, and counted upon them: for notwithstanding, that one of them hath been delivered of record to the sheriff to serve, yet seeing that may be done by a stranger, as well as by the plaintiff, it shall be no conclusion to the plaintiff to say, that the said writ so delivered of record, was not his suit. And the like law is, 4. H. 6. 15. if an appeal by bill be commenced in the county before the sheriff and the Coroners, and is removed out of the county into a court of record, and there depending, the plaintiff doth purchase another appeal by writ, this appeal by writ shall abate. But it is otherwise, if the appeal by writ be purchased before the appeal by bill removed out of the county: 10. H. 4. 4. for there the Court ought to send for the appeal in the county, without abating the appeal, which is commenced by writ: and this is more worthy, and of an higher nature, then is the appeal by bill commenced in the county, which is but as a plaint, until after it be removed: for it is a common course in the K. Bench, when an appeal is depending there by Writ, to send for the appeal commenced by bill in the county: and yet if the appellant be nonsute in his appeal depending in the county, his Writ shall abate. 86 In an appeal brought against two, Pleading of one in appeal against two one of them may plead, 21. E. 4. 71. 7. H. 4. 27. that his companion, that was named with him in the Writ, died at such a place, before the Writ purchased: Or that there was none such in Rerum natura, as the other which was named with him in the Writ, the day of the Writ purchased: for if he that doth appear, should not plead these pleas, there is none to plead them: and in the foresaid cases, and in all other cases of appeals against several persons, if the appeal doth abate against one of them, 9 H. 4. 2. it doth abate against them all. 87 In an appeal, if the def. do plead, that the plaintiff is misnamed, The plaintiff misnamed. 9 H. 5▪ 1. if the plaintiff will confess it, the covin shallbe examined, viz. whether he doth it by covin between him and the plaintiff, or not. But if it be proved true, that the plaintiff is misnamed, the appeal shall abate. 88 In an appeal the defendant may have two or three pleas to the writ, Two or three pleas to the writ. as the tenant shall have in an assize: But he must take care, that one of them be not contrary to the other. 89 To make a bar in appeal, Bars in appeal. is to run over the foresaid title to whom appeals be given, and according thereunto to frame his plea in bar: for if an appeal be commenced by one that hath no title to maintain it, that is good matter to plead in bar against the appellant. As, if a woman do bring an appeal of the death of her husband, it is a good plea to plead, 28. E. 3. 9 27. Ass. p. 3 50. Ed. 3. 15● that after the death of her husband she hath married another husband: Appeal of death brought by the wife. Or that she was never accoupled in lawful marriage to him, of whose death she doth bring the appeal. 90 If an appeal of death be brought by the heir, Bars in appeal of death by the heir it is a good plea to plead, 20. H. 6. 47. Kel. fol. 120 Fi. Cor. 384 27. Ass. p. 25 that he which is dead, hath a wife living, to whom the appeal is given: or that the plaintiff who supposeth himself to be heir, is not next heir to him that was slain, but that he hath an elder brother, or that he is a bastard: or to plead, that the plaintiff in this appeal of death hath surceased his time, for that the appeal was not brought within the year and day after the death of him, who is supposed to be killed: or to say, 8. H. 4. 18 that he of whose death this appeal is brought is living at such a place: or to bring the party supposed to be slain, into the court, that he may be seen, and known to be living. Fi. Cor. 17 11. H. 4. 14 91 In an appeal of Robbery it is a good plea to plead, that the plaintiff is his villain. And in appeal of Rape brought by the husband and wife, Robbery Rape. it is a good plea to plead, never accoupled in lawful marriage, or to plead villeinage in the plaintiff. In an appeal of Robbery it is no good plea for the defendant to plead in bar, Co. lib. 4. 43 2. R. 3. 14 that the appellant brought an action of Trespass against him for the same goods carried away, and recovered: for the appeal of Robbery is of a higher nature, and concerneth the life of a man. 92 There be some other pleas in bar in an appeal, which be general, General pleas in bar in appeal. and will serve for all manner of appeals of Felony: Fi. Cor. 32 2 as to plead, that the plaintiff is attainted of Treason or Felony: Or that he is a Monk, a Priest, not of perfect memory, dumb, deaf, a lazar, a natural fool, or that he is maimed by another, and not by the defendant. But if the plaintiffs attainder be but by outlawry, which is erroneous, than his attainder is no bar but for the time, Fit. Vtlarie 47. viz. until he hath reversed the Vtlary. S. Approvers 10. 14. 93 It is a good plea in bar in an appeal, The plaintiff brought another appeal. to say that the plaintiff at another time brought an appeal of the same felony against the defendant, 9 H. 4. 2. 47. Ed. 3. 16. in the which he was Nonsute, or made a Retraxit: Or that the plaintiff did at another time pursue an appeal of the same felony against another, who was attainted or acquit at his suit. If a man be indicted of Manslaughter, and upon his arraignment he confesseth the felony, and prayeth, and hath his Clergy: If after an appeal of murder be brought against the said offendor, Co. li. 4. 40. 45. of the murder of the same man, it is a good plea for him to plead, that he was at another time convict of the same felony. And the same law is, if one bring an appeal of Murder against another, and the defendant pleadeth not guilty, and is found guilty of manslaughter, and hath his Clergy, if after he be indicted & arraigned of the same offence, and he doth plead the former conviction, it is a good plea in bar. S. Indictments 47. Fit. Cor. 98. 94 It is a good plea in bar in an appeal for the defendant to plead, The plaintiffs release in bar. that the plaintiff made unto him a Release of the same offence: for it will not serve to plead a Release made to any other, saving to himself, though the other to whom the Release is made, be named with him in the appeal. And in like sort, though the plaintiff made a Retraxit against one of them, this shall not bar him against them both, but the appeal shall stand good against the other. 95 And when the defendant hath pleaded any of the foresaid pleas, Pleading not guilty after other pleas. yet (in favour of life) the law doth permit him to plead over to the felony (viz. not guilty) and his plea by that means shall not be adjudged double, 22. E. 4. 39 unless it be in the case of a release: for there he shall not be allowed to plead over to the felony, because it is contrary to his foresaid plea: Neither shall he plead over to the felony, when the defendant in an appeal of Robbery doth plead Villeinage in the plaintiff, for if he should plead over to the felony, the plaintiff by that means should be enfranchised. 28. E. 3. 91. 18. E. 3. 32 But if the Villeinage be found against the defendant, he shall have this plea of not guilty, as well as he shall have, when he pleadeth any of the foresaid bars, without concluding over to the felony: yet notwithstanding if the bar be found against him, he may plead over to the felony, viz. not guilty, saving in pleading of a release, for by that plea he confesseth the felony by implication. Where the K. may prosecute an appeal begun by another. 96 If the appellant do surcease to prosecute his appeal against the defendant, the king may pursue it: for the appellant may by several means leave off, and omit to prosecute his appeal, as by Nonsute, Release, Retraxit, 3. H. 6. Fi. Cor. 3 or a woman by taking a husband during the suit of Appeal: and because in all those cases the suit doth cease by the act of the party plaintiff, therefore in which of them soever it doth cease, after declaration in the appeal, the defendant shall not go at liberty, but shallbe arraigned at the king's suit, upon the same declaration, for that it doth appear by the declaration there is a felony committed, and the year, day, and place, where and when the said felony was committed, and the same is not yet tried, and the law will not allow such great offences, whereof she taketh notice, to be concealed, and remain unpunished. And the same law is, if the appellants appeal do cease by the act of God, 21. E. 3. 18. as if the appellant do die: Or if it cease by the act of the Law, as if the appellant be hanged: Or if the appellant do take the privilege of his Clergy, Fi. Cor. 369 in which cases the defendant likewise shallbe arraigned at the K. suit. But in every arraignment, which is to be at the K. suit, upon an appeal begun by an appellant, the declaration in the same appeal must be once good and true: for if it were never good, and abated for that cause, Fit. cor. 1●1 the appellee shall not be arraigned at the king's suit, notwithstanding the abatement be after declaration. And therefore if the appeal be abated by misnaming of the defendant, 4. H. 6. 16 he shall not be arraigned at the king's suit: Or if it be abated by misnaming of the plaintiff, or of the town, or for want of a material word. And so it is, if the defendant in an appeal do plead, that the plaintiff is outlawed, 17. Ass. p. 26 11. Ass. p. 27 18. E. 3. 35 Fi. Cor. 3 or is attainted of Treason or Felony, or otherwise is disabled to maintain an appeal: as if a woman do bring an appeal of the death of her husband, and the defendant doth plead, that she and her said husband were never accoupled in lawful marriage, or that she hath married another husband: Or that the appeal was not commenced within the year & day, after the offence committed: Or that the appellant hath an elder brother living, to whom the appeal is given, Fit. cor. 384 387. & not to the plaintiff. And all those matters which shallbe a bar to the plaintiff to bring the appeal, shall also be a bar to the K. to take any advantage against the appellee upon the same appeal: for in all these cases it may appear, that the appeal was commenced without cause, & grounded upon false & insufficient matter. And the king shall be in no better condition than the appellant, for the defendant is arraigned upon the declaration of the appellant: and yet it is otherwise, where the Appeal was at the first grounded upon sufficient and true matter. But in all the cases aforesaid, though the king can take no advantage of the Appeal against the defendant, yet he may compel him to answer to an indictment of the same felony: for that by these pleas the defendant is not discharged of the felony, though he be discharged of the Appeal. S. Approvers 15. 17. 18. 19 No appeal of Treason. 97 If an act which was murder, felony, or other offence, by the common law, be after made treason by stat. & then one doth offend in the same, no Appeal will lie against him therefore, for that no Appeal will lie of High or Petit Treason. And therefore whereas wilful poisoning was wilful murder by the common law, and after by the stat. of 22. H. 8. 9 the same was made high treason, and ordained, that the offendor therein should be boiled to death: (which stat. was sithence repealed by the stat. of 1. Ed. 6. 12. & 1. M.) yet during the said stat. of 22. H. 8. in force, the son and heir of a man poisoned, brought an appeal against a woman for poisoning her husband, and because the offence was then high Treason, M. 33. H. 8. Dyer 50. and no appeal will lie of Treason, the appeal was adjudged not maintanable. And yet by the ancient laws of this realm (as Bracton affirmeth) the accusor might have pursued an appeal of high Treason against the defendant or party accused, Bracton, de coron, c. 3 and the defendant might have thereunto pleaded not guilty, and waged battle with the accusor: But that Law is sithence altered. ❧ Indictments. What an Indictment is. 1 AN Indictment of Treason, Felony, Trespass, or other offence, is an inquisition taken, and made by twelve men at the least, thereunto sworn, whereby they do find and present, that such a person, of such a name, and surname, dwelling in such a place of such a County, and of such a degree, hath committed such a Treason, Murder, Rape, Burglary, Robbery, Felony, Trespass, or other offence, at such a place, upon such a day, and in such a manner, against the King's peace, his Crown, and Dignity, and contrary to the Laws of this realm: and so it is an accusation by the jury of the offendor, and an information of the Court, from whence they receive their charge, of his offence, and of all such necessary circumstances thereof, and in such certainty, that thereupon the same Court may proceed to the trial or arraignment of the party accused, if he be present, or otherwise may award Process against him to appear, and to make answer thereunto, if he be absent. And because this Indictment and accusation doth sometime concern the life or member of man, sometime his liberty, sometime his fame and credit, sometime his Lands and Tenements, and some other time his Goods & Cattles: Therefore the Law hath a special regard, that the proceedings therein may be effected with all sincerity and upright dealing, and doth carry a vigilant and watchful eye, not only upon the jurors which are returned and sworn in those Inquests, that they may be men of integrity, sufficiency, and indifferency, but also upon Sheriffs, and Bailiffs of Liberties, who have authority to return the same jurors: for she hath provided by several Statutes, That they shall take no Indictments by Commissions procured at their own suit, but in their Turns: That they shall hold their Turns, St. 28. E. 3. 9 St. 31. E. 3. 14 St. 13. E. 1. 13 St. 1. E. 3. 16 and take Indictments but in convenient and usual times: That they shall take Indictments by twelve men at the least, and then by Roll indented: That they shall take their Indictments by men of good name, & credit, and sufficient of estate: St. 1. R. 3. 4 St. 1. E. 4 3. That they shall bring their Indictments and Presentments found and made in their Turns to the justices of Peace of the same County, that they may award Process against those that be indicted, and set fines upon them: That jurors impanelled to make inquiries, St. 11. H. 4. 9 shall be lawfully returned by sheriffs, or bailiffs of Franchises, without the denomination of any other person: That Panels returned by the Sheriff to make inquiries, St. 3. H. 8. 12 St. 3. H. 7. 1 may be reform by the justices: and that one inquest may be impanelled and charged to inquire of concealments of offences made by another inquest: So that the Law hath provided, that Indictments may be found by men of worth, and upon just causes. And as touching Commissions, because in times past Sheriffs of divers Counties, by virtue of Commissions & general Writs granted unto them at their own suit, for their private gain, did take divers Inquests to indict people at their own pleasures, Commissions to sheriffs to take indictments. and then took fines and ransoms of them to their own uses, and after set at liberty the parties, and never brought the same persons so indicted before the King's justices, to be delivered there, according to the form of Law: It was therefore by a Statute made Anno 28. Ed. 3. St. 28. E. 3. 9 ordained, That all such Commissions & Writs should be from thenceforth repealed, and that none such should be at any time after granted. By force of which Statute the Sheriff is restrained to make any inquiry by Writ or Commission: The sheriff may inquire of Felonies But yet by virtue of his office he may at this day make inquiry in his Turn of Felonies, observing such orders as by the statutes hereafter limited be expressed. St. 9 H. 3. 36 2 Whereas by the statute of Magna Charta, it was ordained, That no Sheriff or his Bailiff shall hold his Turn by Hundreds but twice in the year, in a due and accustomed place, that is to say, once after Easter, and another time after the Feast of Saint Michael. And because some Sheriffs did hold their Turns in Lent, when men should attend their devotion, and other works of charity: and sometimes after the Gule of August, when most men be occupied in felling and carrying in their corn, contrary to the foresaid statute of Magna Charta, St. 31. E. 3. 14 therefore by a statute made Anno 31. E. 3. it was enacted, That every Sheriff should hold his Turn When the sheriff shall hold his Turn. yearly once within a month after Easter, and at another time within a month after the feast of Saint Michael: and if they hold their Turn in any other manner, that then they shall lose their Turn for that time. And so, An indictment found in an unlawful time if any man be indicted of Felony or other offence in the Sheriffs Turn after the month of Easter, 38. H. 6. 7. 6. H. 7. 2 and Saint Michael, the Indictment shall be void, because it is against the form of this statute: for the words of the statute be, they shall lose their Turn for this time, which is as much, as if it had been said, their Turn holden at this time is void. And by this statute it doth appear when the Turn shallbe holden to make a good Indictment. 3 Because Sheriffs did feign divers times certain persons to be indicted before them in their Turns of Felonies, and other Trespasses, and did apprehend certain persons that were not culpable, nor lawfully indicted, and imprisoned them, to the intent to exact money from them, whereas they were not lawfully indicted by twelve men: For the prevention whereof, by the statute of Westm. St. 13. E. 1. 13 2. made Anno 13. Ed. 1. it was provided, That Sheriffs in their Turns, and in other places where they have authority to inquire of Trespasses by the King's Precept, or by their Office, shall cause inquisitions to be made of malefactors by twelve lawful men at the least, sheriff's shall inquire by xii. lawful men at the least. which shall put their seals to such inquisitions. And the said Sheriffs shall apprehend those which shall be found culpable by such inquisitions, and imprison them, as they have used to do. And if they do imprison any other but such as be indicted by the inquisitions aforesaid, they which be imprisoned shall have their action of false imprisonment against the Sheriff, as they might have against any other person that should imprison them without warrant: and what is said of the Sheriff, shall be observed of every Bailiff of Liberty. 4 Because the said Inquisitions taken by the Sheriff should not be concealed, imbesilled, or mistaken, but that the truth of them should be showed to the justices, when they come to deliver the jail, Therefore by the Statute of Anno 1. Edw. 3. it was established, St. 1. E. 3. 16 That Sheriffs and Bailiffs of Franchises, Indictments by roll inden●ed before the Sheriff. and all others who take Indictments at their Turns, or elsewhere that Indictments should be made, shall take those Indictments by Roll indented, whereof one part shall remain with the Indictors, and the other with him that doth take the inquest: So that the Indictments shall not be imbesilled, and that one of the inquest may show one part of the Indenture to the justices, when they shall come to make deliverance. This Statute by general words doth extend to Stewards in leets, and all others. 5 For that great inconveniences and Perjuries were in several Counties of this Realm, by false verdicts given in inquisitions and inquiries before Sheriffs in their Turns, by persons of no substance, nor behaviour, nor fearing God, nor respecting the world: by which means many persons of several parts of this Realm, by the enticement and persuasion of their enemies, were wrongfully indicted: and some others, which ought to have been indicted by such procurement, Of what sufficiency jurors returned in the Sheriffs Turn, shallbe. were spared: For the avoiding whereof, by a Statute made Anno 1. R. 3. it was enacted, That no Bailie, St. 1. R. 3. 4 or other Officer shall return in any panel any such person in any County within this Realm of England, to be taken or put in or upon any such inquiry in any of the said Turns, but such as be of good name and fame, and have lands and tenements of freehold within the same County, to the yearly value of twenty shillings at the least, or otherwise Lands and Tenements, holden by the custom of the Manor, commonly called Copyhold, within the said Counties, to the yearly value of six and twenty shillings eight pence at the least. And if any Bailie or other Officer within the said Counties shall return or impannell any person contrary to this ordinance, he shall lose for every person so impanelled or returned, not being of the sufficiency aforesaid, so often as he shall offend, forty shillings, and the sheriff other forty shillings, whereof the one half shallbe to the King, and the other to such as will sue for the same. And every person that will sue for himself, shall have several actions of Debt at the common Law, as well against the Sheriff, as against the Bailie. And like and the same Process shallbe had and used in those actions, as be had and used in other actions at the common Law, and no Protection or essoin shallbe allowed therein: and every such Indictment otherwise taken before the Sheriff in his Turn, shall be void: which foresaid statutes were made, to avoid the corrupt and evil demeanour of Sheriffs and other officers, which take Indictments in sheriffs Turns and Léets. 6 Because divers persons were greatly vexed and troubled by the inordinate and immeasurable Indictments and Presentments, as well of Felony and Trespasses, as of other things which were taken and used before sheriffs, their Vndershirifes, Clerks, Bailiffs, and other Ministers at their Turns or Law-days holden before them severally in their Counties: Which indictments and Presentments were often affirmed by jurors, having no conscience, nor freehold, and small wealth, and sometime by the menial servants and Bailiffs of the said Sheriffs or Vndershirifes. By reason of which Indictments and Presentments many people were attached, arrested, and put in prison by the said Sheriffs, their Vndershirifes, Clerks, Bailiffs, and Ministers, and then they were constrained to pay unto them great fines and ransoms, to deliver them out of prison: and also the said Indictments and Presentments were imbesilled, withholden, and concealed. And further, the said Sheriffs and other Officers had amongst themselves the awarding of Process upon such Indictments when they were found, and the assessing of fines: So that all the corrupt misdemeanours sought to be reform by the before specified statutes, were little or nothing amended. And therefore for the reformation of the enormities aforesaid, St. 1. E. 4. 3. by a statute made Anno 1. Ed. 4. it was ordained, That upon all Indictments and Presentments which shall be taken before any of the Sheriffs of Counties for the time being, their Vndershirifes, Clerks, Bailiffs, or Ministers at their Turns, or Law-days, they nor any of them shall have power or authority to arrest, attach, or put in prison, or to levy any fines or amerciaments of any person or persons so indicted or presented by reason or colour of any such Indictment or Presentment taken before them, or any of them, or to levy or take of any such person or persons so indicted or presented, any fine or ransom. But the said Sheriffs, undershirifes, Bailiffs, or Ministers shall bring, present, and deliver all such Indictments and Presentments taken before them, or any of them in their Turns, or Law-days, to the justices of the Peace, Indictments taken in the sheriffs Turnt shallbe delivered to the Iu. of peace. at their next Session of the Peace, which shallbe holden in the County or Counties where such indictments and presentments shallbe taken. And if any of the said Sheriffs, Vndershirifes, Clerks, Bailiffs, or Ministers do not bring, deliver, or present all such indictments or presentments so taken before them and every of them in their Turns, or Law-days, as is aforesaid, to such Sessions of the peace, before the said justices: then the said Sheriffs, Vndershirifes, Clerks, Bailiffs, and their Ministers, and every of them which shall fail of the bringing, delivering, or presenting of such Indictments or Presentments, shall forfeit to the king forty pounds, so often as they or any of them shall do the contrary. And the said justices of peace shall have power and authority to award process upon such Indictments and Presentments as the Law doth require, Process upon Indictments awarded by I. of peace and in such like manner, as if the said Indictments and Presentments had been taken before the said justices of Peace in the same County or Counties: and also to arraign and deliver all person and persons so indicted and presented, before the said Sheriffs, undersheriff, their Clerks, Bailiffs, or Ministers, or any of them in their Turns or Lawdays, and to set such fine upon every person or persons indicted or presented of Trespass, as it shall seem good to their discretions. And the Estreats of the same fines and amerciaments shall be enrolled, and by Indenture delivered to the said Sheriffs, Vndershirifs, Clerks, or Ministers, or to some of them, to the use and profit of him which was sheriff of the County at the time of the taking of such indictments or presentments. And if any of the said Sheriffs, Vndershirifes, Clerks, bailiffs, or ministers shall cause to be arrested, attached, or put in prison, or shall cause to be raised or taken any fine or ransom, or levy any amerciament of any person or persons so indicted or presented, by reason or colour of any such indictment or presentment before him taken at his foresaid Turn, or Law-day, before they have process from the said justices of Peace, or Estreats delivered out of the said indictments or presentments so brought, delivered, or presented unto them: then the sheriffs which do so shall forfeit an hundred pounds, whereof the one moiety shallbe employed towards the expenses of the king's house, and the other to the party or parties that shallbe endamaged: And he or they shall have an action of Debt at the common law, and like process as is used in an action of Debt at the common law, wherein the defendants shall not be essoined, wage their law, Indictments in London. nor have any protection. But this Ordinance shall not extend or be prejudicial to the sheriffs of the city of London, touching indictments or presentments to be taken before them in the said city: Neither shall this ordinance extend or be prejudicial to any person or persons that have grant of any fines, or other amerciaments by any letters patents of the king, or of any of his progenitors or predecessors, bearing date before the x. day of December next after the beginning of this Parliament, being An. Dom. 1461. B This statute doth give authority to justices of peace to award process upon all indictments taken in the sheriffs Turn, when they be brought and delivered unto them: But yet it is always intended, That those Indictments shallbe lawful, The sheriff enquiring of things not inquirable in 〈◊〉 Turn. and contain matter whereof the Sheriff hath jurisdiction in his Turn, and power to make inquiry: For if the Sheriff in his Turn will make inquiry of the statute of Liveries, 4. E. 4. 31. 8. E. 4. 5. or indict one who did feloniously ravish a woman, or such other matters, which be not inquirable in the sheriffs Turn, although he will bring the indictments before the Iu. of peace, and deliver them according to the foresaid stat. of 1. Ed. 4. yet they ought not to award process upon them, for they were taken coram non judice, and so void. 7 And for that Inquests were sometimes taken, without being duly returned by the sheriff, of such persons as were outlawed before justices of Record, and of some such as were fled to sanctuary for Felony or Treason to have refuge, by whom sometimes not only offenders were indicted, but also several of the king's liege people not guilty, by the conspiracy, abetment, and false practice of others, for their own special advantage and private gain: for the avoiding whereof there was a statute made Anno 11. H. 4. which doth enact, St. 11. H. 4. 9 That no indictment shallbe made by any such persons, but by inquests of the king's liege people, as it hath been used in the time of the king's progenitors, duly returned by sheriffs, or bailiffs of Franchises, without any manner of denomination before made to the said sheriff, or bailiffs of Franchises, by any person of the names of those who shall be impanelled by him, jurors in indictments shall be returned by the sheriff without denomination unless it be by the officers of the said sheriffs, or bailiffs of Franchises, known or sworn thereunto, and other ministers to whom it appertaineth by the law of England to make the same. And if any indictment be made in any point to the contrary, the same shallbe void, revoked, and of no force. According to this statute, some have been discharged of their Indictments, B. because certain of the Indictors were before that outlawed of Felony. This statute of Anno 11. H. 4. is altered by the next statute of Anno 3. H. 8. for so much only as doth concern denomination to be made by the justices, 11. H. 4. 40. St. 3. H. 8. 12. for the reformation of Panels returned before them by the Sheriffs, when the said justices will have the same Panels reform: But for all the residue it continueth in force. 8 The whole authority of returning of Inquests to make Indictments, without the denomination of any person before made, being by force of the foresaid statute of 11. H. 4. in sheriffs and bailiffs of Franchises, several great extortions and oppressions were done in divers Counties of this Realm by subtlety and untrue demeanour of sheriffs and their ministers to many persons by making and returning at every Sessions holden within the said Counties for the body of the shire, names of such persons, as for the singular gain of the said sheriffs and bailiffs would be wilfully forsworn, by the sinister labour of the said sheriffs and their ministers: By reason whereof, by their covin and falsehood, many true and substantial persons were divers times wrongfully indicted of Murders, Felonies, and other misbehaviours, to the utter loss of their lives, goods, and lands: and sometime also by the labour of the said sheriffs great Felonies and Murders were concealed, and not presented by the said persons, partially returned by the same sheriffs, or their ministers, to the intent to compel the offenders to make fines, and give rewards to the said Sheriffs and their ministers: For the prevention of which enormities, by a stat. made Anno 3. H. 8. it was established, St. 3. H. 8. 12 That all panels to be returned, which be not at the suit of any party, Panels for indictments reform by the justices. that shall be made and put in by every sheriff and their ministers before any I. of jail delivery, or I. of Peace (whereof one to be of the Quorum) in their open Sessions to inquire for the king, shallbe reform by putting to and taking out of the names of the persons which so be impanelled by every sheriff and their ministers, by the discretion of the same justices before whom such panels shall be returned. And the same justice and justices shall command every sheriff, and their ministers in his absence, to put other persons in the same panels by their discretions. And the same panels so reform by the said justices, be good and lawful. And if any sheriff, or any of their ministers at any time do not return the same panels so reform, than every such sheriff or minister so offending for every such offence shall forfeit xx. l. the one half to the king, and the other to him or them that will sue for the same by action of Debt at the common law, or Bill etc. wherein no W.E. or P. shallbe allowed: and the king's pardon shall be no bar against the party or parties that shall sue the same. 9 It is to be thought, that by force of the statutes before rehearsed sufficient, honest, and indifferent jurors were returned by the sheriffs of Counties, or that the Panels by them returned were reform by the justices; so that if any defect were committed in Indictments, or in concealing of offences, or offenders, than the same was in the jury, which were charged for the body of the Shire to make inquiry: for the searching forth of the truth whereof, and for the punishment of the said offenders according to their demerits, by a statute made Anno 3. H. 7. it was ordained, St. 3. H. 7. 1 That the justices of peace of every Shire of this Realm, for the time being, may do to take by their discretion an inquest, inquest to inquire of concealments. whereof every man shall have Lands and Tenements to the yearly value of forty shillings at the least, to inquire of the concealments of other Inquests taken before them, and before other, of such matters and offences as are to be inquired and presented before justices of Peace, whereof complaint shall be made, by Bill, or Bills, as well within Franchise, as without: and if any such concealment be found of any inquest had or made within the year after the same concealment, every person of the same inquest shall be amerced for the same concealments, by the discretion of the same justices of Peace, the said amerciaments to be assessed in plene Sessions. 10 For as much as several persons upon great grounds of vehement suspicions, as well of high Treasons, petit Treasons, and misprision of Treason, as of Murders, were many times sent for from divers Shires and places of this Realm, and other the King's Dominions, to the King's great charges, to be examined before the King's Council upon their offences, to the intent that conviction or declaration of such persons should speedily ensue, as the merits of their cases should require: And albeit that after great travail taken in the examination of such persons, it appeared to the said Council, by confession, witness, or vehement suspect, that such persons were rather guilty of such offences whereof they were examined, then otherwise, yet nevertheless, such offenders so examined by the course of the common Laws of this Realm, must be indicted within the Shires or places where they committed their offences, and also tried by the inhabitants and freeholders of such Shires and places, although by their confessions, or by sufficient witness their offences were certainly known to the King's Council: By reason whereof, besides the travail of the King's Counsel, the King was often put to great charges, in remaunding such persons to the countries where they offended, there to be indicted and tried of their offences. And sometimes the inhabitants and freeholders of the Shires or places where such offences were done, were compelled to appear out of their shires or places for such causes, to their great charges, for the trial or declaration of such offences. And sometime by occasion of the charges for remaunding such offenders to be indicted and tried by the course of the common Law, such offenders did lie still in prison, and were forgotten: whereby many times, by the help of their confederates, they escaped unpunished, to the great courage and evil example of evil doers. For the reformation whereof, by a statute made Anno 33. H. 8. it was enacted, St. 33. H. 8. 23. That if any person or persons, being examined before the King's Council, or three of them, upon any manner of Treasons, misprision of Treasons, or Murders, do confess any such offences, or that the said Council, or three of them upon such examination shall think any person so examined to be vehemently suspected of any Treason, misprision of Treason, or Murder: then in every such case, by the King's commandment, his majesties Commission of Oyer and Terminer under his great Seal shall be made by the Chancellor of England to such persons, Indictments and trials where the king will. and to such Shires and places as shall be named and appointed by the King's Highness, for the speedy trial, conviction, or deliverance of such offenders: Which Commissioners shall have authority to inquire, hear, and determine all such Treasons, misprisions of Treasons, and Murders, within the Shires and places limited by their Commission, by such good and lawful persons as shallbe returned before them by the Sheriff, or his ministers, or any other, having power to return Writs and Process, for that purpose, in whatsoever other Shire or place, within the King's Dominions, or without, such offences of Treasons, misprisions of Treasons, or Murders so examined, were done or committed: and that in such cases no challenge for the Shire or Hundred shall be allowed. After which Statute there was a Statute made Anno 1. & 2. Ph. & Ma. whereby it was ordained, St. 1. & 2. P. & M. 10. That trials to be hereafter had, awarded, Trial of Treason. or made for any Treason, shallbe had and used only according to the due order and course of the common laws of this Realm, and not otherwise. 12. El. Dyer fol. 286 The foresaid stat. of 33. H. 8. is repealed by the said stat. of 1. & 2. Ph. & M. touching the indictment and trial of Traitors: B for they are to be indicted and tried in the county where the offence was committed, or by freeholders of that county, according to the course of the common law, notwithstanding that they have confessed their offences before iij. of the K. Council. But for the trial of Murder the said stat. of 33. H. 8. doth continue in force. 11 For as much as some doubts and questions were moved, whether certain kinds of Treasons, misprisions and concealments of Treasons committed out of the Realm of England, and other the King's dominions, can or may by the common laws of this Realm be inquired of, heard, and determined within the Realm of England: Therefore for a plain order, remedy, Indictments and trials of Treasons committed out of this Realm and declaration therein to be had, St. 35. H. 8. 2 by a statute made Ann̄ 35. H. 8. it was enacted, That all manner of offences being already made, or declared, or hereafter to be made, or declared by any of the Laws and Statutes of this realm to be Treasons, misprisions of Treasons, or concealments of Treasons, and done, perpetrated, or committed, or hereafter to be done, perpetrated, or committed by any person or persons out of this Realm of England, shall be from henceforth inquired of, heard, and determined before the king's justices of his Bench, for pleas to be holden before himself, by good and lawful men of the same shire, where the said Bench shall sit, and be kept: Or else before such commissioners, and in such shire of the realm as shallbe assigned by the king's commission, and by good and lawful men of the same shire, in like manner & form, to all intents and purposes, as if such treasons, misprisions of treasons, or concealments of treasons had been done & committed within the same shire, where they shallbe inquired of, heard, and determined, as is aforesaid. But if any peer of this Realm shall be indicted of any such Treasons, or etc. he shall have his trial by his Peers. B If any subject of this Realm being beyond the sea, doth practise with the Prince or Governor of another country to invade this Realm of England with a great power, and in his practice doth declare by what means, how, and in what place the same may be done; 13. El. Dyer 298. and though there be no such invasion, yet this practice is high Treason: Treason practised beyond the sea. for an invasion with power may tend to the destruction or great peril of the person of the King. And this offence shall be tried according to the foresaid Statute of 35. H. 8. which Statute doth remain in force, and is not repealed by the before rehearsed Statute of 1. & 2. Ph. & Ma. 10. Indictment in the County of Lancaster of a foreign. 12 For the conservation, tranquillity, and peace of the King's liege people as well within the County Palantine of Lancaster, as of other his liege people out of the said County, within the Realm of England, by a statute made Anno 33. H. 6. it was established, St. 33. H. 6. 2 That every Indictment to be taken before any of the King's justices in the County Palantine of Lancaster, or before any Sheriff in his Turn in the said County, whereby any person or persons be supposed by the same Indictment to be, or to have been inhabiting or conversant out of the said County, and within any other County within England, shall be taken by verdict of twelve men, whereof every of them, or some other to their use, shall have Lands and Tenements to the yearly value of an hundred shillings, and no process shall be made out of such Indictment, before it be duly examined before the justices within the said County, whether the said Indictors and every of them, at the time of such Indictment taken, had lands and tenements within the said County of Lancaster, to the yearly value of an hundred shillings, above all charges. And if it be found, that every of the said indictors at the time of the said Indictment taken had not lands etc. to the said yearly value of 100 shillings, than the Indictment, as to such persons so indicted, supposed by the said Indictment to be inhabiting or conversant out of the said County of Lancaster, shallbe voided. Indictment in a foreign County of a Lancashire man. 13 And by the same statute of Ann̄ 33. H. 6. it was likewise enacted, St. 33. H. 6. 2 That every Indictment from henceforth to be taken within any County of the said Realm, and out of the said County of Lancaster, before any justice, or the sheriff in his Turn, whereby any person or persons supposed by the same indictment to be, or to have been conversant or inhabiting within the said county of Lancaster, and without such county where such indictment shall happen to be taken, shallbe taken by verdict of twelve men, whereof every of them, or some other person or persons to their own uses, shall have lands and tenements to the value of 100 shillings. And that no process be made out of any such indictments, before it be duly examined and inquired before the K. justices, having power to award any process upon such indictments, whether the said indictors and every of them, at the time of such indictments taken, or any other person or persons to their use, had any Lands or Tenements, to the yearly value of an hundred shillings within the same County above all charges, where such Indictments happen to be taken. And if it be found before the King, or any of his justices, that the said Indictors, or any of them, had not at the time of such Indictment taken, nor that none other to their use had Lands and Tenements to the yearly value of an hundred shillings, that then the said Indictment, as to any such person or persons supposed by the said Indictment to be, or to have been inhabitants or conversant within the said County of Lancaster, shallbe void, and of none effect. 14 Though by the rules of the common Law every offendor shall be tried in that County wherein he is indicted, and he shall be both indicted and tried in the County where he doth commit the offence whereof he is so indicted: yet for the preservation of man's life, and condignly to punish such persons as unlawfully and wilfully murder, slay, or destroy men, and to prevent the practice of those thieves and Robbers, that do steal or rob in one County, and convey their spoil or part thereof to some of their adherents knowing thereof in another County, St. 2. & 3. Ed. 6. 24. by a Statute made Anno 2. & 3. Edw. 6. it was enacted, That where any person or persons shall be feloniously stricken, or poisoned in one County, A man strike or poisoned in one county, dieth in another. and die of the same stroke or poisoning in another County, that then an Indictment found by jurors of the County where the death shall happen (whether it shall be found before the Coroner upon the sight of any such dead body, or before the justices of Peace, or any other justices, or Commissioners, which shall have authority to inquire of such offences) shall be as good, and effectual in Law, as if the stroke or poisoning had been done or committed in the same County where the party shall die, or where such Indictment shall be so found. And by the same Statute it was further ordained, That where any Murder or Felony shall be committed and done in one County, and another person or more shall be accessary or accessaries in any manner wise to any such Murder or Felony in any other County, Indictment of an accessary in one county, to an offence done in another. that then an Indictment found or taken against such accessary or accessaries, upon the circumstance of such matter before the justices of Peace, or other justices or Commissioners, to inquire of felonies in the County where such offences of accessary or accessaries in any manner of wise shall be committed or done, shall be as good and effectual in the Law, as if the principal offence had been committed or done within the same County where the same Indictment against such accessary shallbe found. 6. H. 7. 10 7. H. 7. 8 Before which Statute made, the manner was, B to carry the body of the offendor to the County where the first offence was committed, and there to indict and try him. A man was indicted in the County of Middlesex, for that he in the same County procured another man to kill a third man in the County of Essex, Fi. Cor. 33 by force whereof he did kill him accordingly. This was a good and sufficient Indictment: for he was indicted in the county where he committed his offence, Kel. fol. 67. viz. the procurement. And if a man being in one county, doth procure another to kill a third person in another county, whereby he doth kill him accordingly, in this case a jury of the county where the murder was committed, may indict this procuror as accessary, for that this murder was begun by his procurement. Insidiatores viarum depopulatores agrorum. 15 By the Statute of Anno 4. H. 4. it was ordained, St. 4. H. 4. 2. That the words Insidiatorum viarum, & Depopulatores agrorum shall not be from henceforth used, or put in Indictments, Arraignements, Appeals, nor other impeachments: Nor that by force of any such word, or term, any of the king's people shall be arraigned, appealed, impeached, nor grieved before any secular judge. But the justices may take and receive before them Indictments, Arraignements, and Appeals of Felony, containing in them the effect of the said words and terms, if any shallbe hereafter indicted, arraigned, or appealed before them of any such Felonies. And if in time to come any Clerks shall be indicted, arraigned, or appealed, and their indiments, arraignements, or appeals do purport the effect of the said words, or other words of the like effect; notwithstanding, they shall enjoy the privilege of their Clergy. Words not necessary in Indictments. 16 By a Statute made Anno 37. H. 8. the words vi & armis, viz. St. 37. H. 8. 8 cum baculis, cultellis, arcubus, & sagittis, or such other like (before time commonly used and comprised in all Indictments and inquisitions of Treason, Murder, Felony, Trespass, and other offences) shall not of necessity be put or comprised in any Inquisition, or Indictment: Nor the party being indicted of any offence, shall take advantage by Writ of Error, Plea, or otherwise, to avoid any such Inquisition or Indictment, for that the said words or any of them shall not be put in the said Inquisition or Indictment: But the said Inquisitions or Indictments lacking the foresaid words, or any of them, shall be taken to all intents as good and effectual in Law, as if the said words were in them. No more shall be in an indictment than is true. 17 By these two last Statutes it doth appear, St. 4. H. 4. 2. St. 37. H. 8. 8 that the Realms was offended because Indictments were stuffed with more words then the offence required, and that of purpose to aggravate the offence more than it was grievous in itself. For the circumstances of every offence do augment, or diminish it, according to the qualities thereof. And therefore it is requisite that there shall be no further circumstance put in Indictments, more than the fact, saving that which is true, least Perjury should ensue, and justice be subverted thereby: for such words be not words of form, but as material and necessary, as Proditorié, or Felonicè, which ought to be put in every Indictment of Treason, or Felony, or otherwise the Indictment is not good, for they do express the intent wherewith the fact was committed, Felonice omitted in an indictment of felony. which maketh the offence to be known. As, one was indicted, That he took his father being sick, Fi. Indict. 3. & carried him against his will from town to town in a great frost, whereof he died: and for that this word Felonicè was not in the indictment, it was adjudged void. And if one be indicted of murder, or manslaughter, 1. M. Di. 99 there must be of necessity in the indictment a stroke supposed viz. tali die & anno felonicè & ex malitia praecogitata interfecit & murdravit, etc. without saying percussit. And if a man be indicted of Piracy, piracy in an indictment. there ought to be in the indictment not only this word felonicè, Stamf. 114. but also this word piraticè. 18. E. 3. 32. Fitz. Cor. 122. 13. Ass. p. 6 18 In an action of trespass brought for the taking away of a man's wife, Where a verdict shallbe an indictment. and the goods of the husband, the def. pleaded not guilty, and was found by verdict guilty: in this case the same verdict shall serve as an indictment for the K. and the def. shallbe thereupon arraigned of felony. And in like sort, ●n an action of trespass brought for the taking away of his goods, Fitz. Indict. 31. the defendant pleaded not guilty, and it was found by verdict, that the defendant with other his companions did steal those goods from the plaintiff: whereupon the defendant was awarded presently to answer to the felony at the K. suit. But it was then affirmed, that if the inquest had passed in any other place saving the K. Bench, nothing ought to have been done touching the felony, until the Eyre of the justices. 1. H. 7. 6. 19 If the Sheriff return a Rescous made unto him of one which he did arrest for felony, and was taken out of his possession: The Sheriffs return no indictment. In this case notwithstanding this return be matter of record, yet it is not sufficient to serve as an indictment against him that made the Rescous. And the same law is, if the Sheriff return, 2. E. 3. 1. that the party arrested did escape from him. And the reason of the difference between the two former cases & these, is, for that in the first cases there is a verdict of twelve men, which will always serve for the King, if they contain matter that will entitle him. For the King is ever present in court, and if the parties in pleading, or the jury in their verdict, do disclose any matter which shall entitle the King, the court shall adjudge for the King, though he be none of the parties to the action. But in the other case of the Sheriffs return, it is not so: for the Sheriffs return will rather attaint him, than put him to answer, for that it is a common rule, that against the Sheriffs return there is no Traverse, nor answer. S. Breaking of prison 7. 25. E. 3. 43. 8. H. 1. 8. 2. H. 7. 7. 3. H. 7. 5. 5. E. 6. Di. 69 20 An Indictment which is uncertain is not good, The year, day, and place, necessary in an indictment. and therefore to make a good Indictment, it is necessary to put in the year, day, and place, when, and where the felony was committed: And it ought to be such a day as is not doubtful, nor uncertain: for if it be so, it is as much as if no day had been put in. And therefore if a man be indicted, Certainty in the day. that he committed felony in the Feast of Saint Paul, without addition, and there be two Feasts of Saint Paul in the year, this is an uncertain indictment, and so void. A man was indicted, for that the first day of May, and the fourth day of May, at Dale he did beat and wound I.S. and then and there did take and steal from him feloniously, 2. H. 7. 7. a white horse: and this was adjudged a void indictment, for it is uncertain whither these words adtunc & ibidem shall have relation, for a felony can be committed but at one time and place. 21 An Indictment ought to be certain not only in the day, Indictment certain in the matter. but also in the matter. 8. E. 4. 3. As if one be indicted for apprehending of a man for suspicion of felony, and that he did after voluntarily and feloniously let him go at liberty, and the indictment doth not show in certainty for suspicion of what felony he was taken, this is a void indictment. Indictments certain in the persons received. 22 If a man be indicted as accessary to four men, in this manner, viz. 30. H. 6. 2. that he knowing those four to have committed felony, did receive them feloniously at D. and the indictment doth not show which of them he received, this indictment is void for the incertainty: for the indictment should have been, that he did receive them all four by name, or three, two, or one of them by name. Indictment uncertain at which court. 23 If an indictment be, 49. H. 6. 15 31. H 8. Dyer 46. 4. & 5. P. & M. Dy. 164 33 H. 8. Dyer 50. Ad magnam curiam cum leta tentam tali die & anno extitit praesentatum quod etc. this is a void indictment, for that it is uncertain to which of those courts a man will refer the presentment, whether to the Léet, or to the Court Baron. And so must the words of an indictment be certain in every addition of the county, Indictment uncertain in the addition. town, place, time, person, mystery, etc. and in an Alias dictus etc. and in the placing thereof. Indictment for making of money. 24 If a man be indicted, that he made C. s. by Alchemy, Fitz. Indict. 10. like the money of our Sovereign Lord the K. and it is not alleged in the indictment what money it was, viz. pence, groats, or etc. this is a void indictment for the uncertainty. A common thief. 25 If a man be indicted, that he is a common evil doer, or a common thief, 22. Ass. p. 73 29. As. p. 45. without showing specially in what thing, this is a void indictment, because it is uncertain in what things the transgressor hath offended. By the stat. of anno 25. E. 3. 9 pro Clero, it is ordained, That no Ordinary, St. 25. E. 3. or any minister of his, shallbe indicted of extortion or oppression generally: but it must be declared and put in certain in the indictment, in what thing, of what, and in what manner the said Ordinaries or their Ministers have done extortion and oppression: Indictment of the Ordinary must be certain. or otherwise the said Ordinaries and their ministees shall not be impeached by the K. justices for the said indictment. The foresaid A. where none is named. 26 If a man be indicted for the stealing of the goods of the foresaid A. where there is no such A. before named in the indictment, this is a void indictment: 9 E. 4. 1. for that words subsequent cannot have relation to words precedent, where there be none such. Indictment for the kill of a man unknown. 27 No man is bound to answer to an appeal of felony touching the death of a man, if the appellant do not name the name of the party that was killed. 22. As p. 94 But a man may be indicted quod interfecit quendam hominem ignotum: 2. E. 3. 26. 9 H. 6. 64. 1. Ass. p. 7. for he that is slain may be so mangled in the face, or was dwelling so far off, that he cannot be known by name. Indictment for stealing the goods of a man unknown. And in like sort a man may be indicted for the stealing of the goods of cuiusdam hominis ignoti. And the reason is, Fitz. Indict. 12. 1. M. Di. 96. 11. Eliz. Dyer 285. for that this indictment is not the suit of the owner of the goods, but is the King's suit, who is to have the goods, if no man do claim them: And it were not expedient that the King should lose the goods, for that the name of the owner is not there known, which owner peradventure for fear will not claim the goods as his own, or who (it may be) is dwelling in another County, far distant from the place where the goods were stolen: so that the country where the goods were stolen, doth neither know his name or surname. And therefore for the K. advantage, and for to print a greater terror into the hearts of malefactors, to commit such heinous crimes, such Indictments be allowed good. And yet a man being indicted for stealing of the coat of a dead man unknown, Fitz. Indict. 27. the Indictment was not allowed: for it was holden, that the executors of the dead shall have this coat, or the Ordinary, or else it shallbe delivered to the church, or otherwise be employed to charitable uses. Quaere differentiam. 28 If a man be indicted Quod bona Capellae in custodia etc. The goods of a chapel or church. aut bona domus & ecclesiae tempore vacationis felonicè furatus est etc. this is a good Indictment: 7. E. 4. 14. 9 E. 4. 33. And yet in this case there is no owner here, but because the property can be in no other, neither can it be otherwise done, for that cause the Indictment is allowed to be good. 29 An Indictment the force whereof doth depend upon an argument, An indictment depending upon an argument or implication. or implication, 2. Ed. 3. 1. Fitz. Indict. 8. is not good: As if one be indicted, Quod felonicè abduxit unum equum, he did feloniously lead away a horse: this is not a good Indictment without saying felonicè cepit & abduxit, viz. that he feloniously took and led him away, Co. li. 4. 42. 44. for it may be that the horse was lent him, & so he led him away, in which case then it is no felony: and yet in these words felonicè abduxit is implied, that he did steal the horse. 18. E. 4. 10. 30 If an Indictment be, Quod furatus est unum equum, viz. Furatus est without felonicè. that he did steal one horse, and saith not felonicé, this is a void indictment, though felonicè be implied in these words, furatus est. And in like sort it is, if a man be indicted of a rape, 9 Ed. 4. 26. and the indictment is, quod eam carnalitèr cognovit, without using the word rapuit, this is no good indictment, and yet carnalitèr cognovit is an argument of a rape, though it may be that he did carnally know her by her own will and consent, 9 Eliz. Dyer 261. 13. Eliz. Dyer 304. and so not ravish her. And in an indictment of murder, if these words be in the indictment, ex malitia praecogitata, & voluntarié, & felonicè interfecit, & not this word murdravit, it shall not be adjudged a murder, Murdravit. but homicide. 31 If an indictment of felony be found before A.B. Iust. of peace, Indictment before I of peace. without making mention of any commission that they have to hear & determine felonies, this is no good indictment: St. 18. E. 3. 2 for by the stat. of an. 18. E. 3. they have power by commission to hear & determine felonies, and not by virtue of their office only, and yet it is to be implied, that all Iust. of peace by force of their commission, 5. E. 6. Di. 69 have authority to hear and determine felonies: And they have authority to inquire of murder, for that it is felony. ●2. E. 4. 12 32 If one be indicted upon the sight of the body before the Mayor of London, Mayor of London Coroner. without adding thereunto this word Coronatore, this is no good indictment: and yet he that is Mayor of London is always Coroner, & so by implication it may be taken. But such an indictment is not good, which must have an argument or implication. 33 If one be indicted as accessory for the receipt of a fellow, Indictment of the receipt of a fellow, as accessory. 2. H. 6. 42. there must in the indictment mention be made of the manner of the felony, & that the party indicted knowing the principal to have committed such a felony, did feloniously receive him. But it is otherwise, if a man receive one attainted of felony in the same county where the felony was committed: for in that case, 8. E. 4. 3. if he be indicted of the receipt of the fellow, Indictment of the receipt of one attainted of felony. mention need not be made of the manner of the felony, because it is sufficient that the party attainted of felony was received, though the attainder be erroneous: seeing it is not lawful for any to receive him, for every person is bound to take notice of this attainder which is in the same county where he dwelleth. But it is otherwise, Fi. Cor. 377 if the attainder were in a foreign county, for there none be bound to take knowledge thereof but the inhabitants of the same county, and therefore in that case, notwithstanding the attainder, mention aught to be made of the manner of the felony. Receipt of the goods stolen and fellow. 34 It is no good indictment of an accessary, to say, 25. Ed. 3. 3●. 27. Ass. p. 69 9 H. 4. 1. that the said accessary did receive the goods stolen, without affirming that he received the fellow also, for he is not accessary to a felony, which doth receive goods stolen only, except he doth also receive the fellow. S. Principal & Accessory 14. & 17. Indictments void to one purpose, will serve for another. 35 Although in the cases aforesaid, the indictments be void touching felony, 18. E. 4. 10. 2. H. 7. 7. 6. H. 7. 4. yet divers of them shall serve as indictments of trespass, to cause the party offending to make a fine, & specially such indictments that do not want any certainty, but only words which make the offence felony. And in those indictments which do want certainty, the Iust. may award a Scire fac ' against the indictors to amend that which wanteth. And so may the Iust. of the K. Bench, 8. H. 5. 8. if the indictment be taken in the same county where the said bench is sitting. Or otherwise, if the indictment were taken before the sheriff, coroner, or Iust. of peace, 2. E. 3. 1. & 18. the court may direct a writ to the said sheriff, coroner, or Iust. of peace, to know if they have any other indictment before them. A prisoner discharged, retained in prison. 36 If the court upon the arraignment of a prisoner, Fitz. Indict. 27. doth discharge him of the indictment, paying his fees, because at that time they do think the indictment to be insufficient, yet if after at another day, or time, they altar their opinion, than they may send to the gaoler, & charge him, that the prisoner shall not departed forth of prison, but stand again at his deliverance, notwithstanding their judgement before, if so be that the judgement be not entered: And this is by the king's prerogative, who is party to the suit. The differences between Appeal and Indictment. 37 And seeing I have treated first of Appeals, & now of Indictments, 22. As. p. 94 it is to be considered, what differences there be between them. In an Appeal of the death of a man, the name of him which is dead must be contained, or otherwise it is not good. And therefore there lieth no Appeal of the death of an infant in his mother's womb, No name. for that infant had neither name nor surname: and moreover that manner of killing is no felony. But if one be indicted of the death of a man unknown, it is a good indictment: M. 2. E. 3. 26 9 H. 6. 45. 1. Ass. p. 7. for he that was slain may be so mangled in the face by the murderer, Killing of a man unknown. or some other, or by some other means, that he cannot be known. And though in that case no man can be of kin to him who is utterly unknown, by which mean no Appeal can be maintained by any, yet seeing offences must not remain unpunished, the offendor in this case shall be indicted: and the inquest which shall pass upon his arraignment, 2. Ed. 3. 26. 11. Eliz. ●● Dyer 285. shall deliver to the court a name of him that was slain, to the intent, that if the party arraigned, or any other, shall vouch that record, he shall not departed from thence without acertaine name. In an indictment of treason or felony, the party indicted shall not plead misnaming Misnaming. of his surname, but he must answer to the indictment, 1. H. 5. 5. 11. H. 4. 40 11. H. 7. 5. Fi. Cor. 113 whether he have one name or other: And yet in an Appeal it is otherwise: But in an Appeal & also in an Indictment, the prisoner may plead misnaming of his name of baptism, and it being proved, the indictment shallbe quashed. In an indictment the party indicted may become an approver, Approver. and so cannot an appellée in an appeal. 22. Ed. 4. 19 In an appeal the defendant may have his trial by battle, Trial by battle. if he will, but so he cannot have which is indicted. A fellow may be indicted in the county where he did steal the goods, or in any other county whither he carried them. 4. H. 7. 5. And in like sort an appeal may be pursued against a fellow, in the county where he did first steal the goods, or in any other county whither he carried them. Fi. Cor. 232 41. Ass. p. 9 Co. li. 4. 45. 38 It is a good plea in an appeal or indictment of felony, to say, Pleading another time acquit of the same felony. that he was at another time arraigned of the same felony, before such Iust. & acquitted, and to vouch the record: for he shall not be compelled to have the record in hand, because his plea is not dilatory, but in bar, and that plea shallbe a good bar (if it be a lawful acquittal) for that by the common law a man shall not put his life in jeopardy of trial twice for one and the same felony, saving in certain special cases. But it ought to be of one offence, or else his plea is to no purpose. And therefore if two men be indicted of felony, as principals, Another offence. and after by another indictment it is found, that one of them committed the felony, and the other did but feloniously receive him after the felony committed, & upon the first indictment they be both arraigned & acquitted, and after he which was indicted as accessory, 8. H. 5. 6. 27. Ass. p. 10 Bro. Cor. 185. 2. E. 3. 26. Fitz. Cor. 424. is arraigned, and pleadeth, that he was at another time acquitted of the same felony: this plea will not discharge him, because it is not of one offence, but of divers, for it was done at several times. But if he had been indicted as accessary before the offence committed, this acquittal of him as principal, would have discharged him of his offence also, for they be in manner one offence, although they be done at several days: For when a felony is committed by force of commandment, the commander in that case is party to the principal fact, so is not the other which is accessary after the felony committed. Bracton Bracton. saith, that force and commandment be as the foundation of the principal fact, and so annexed and conjoined unto it, that they cannot be severed from it: because a wound, a deed, and commandment, do procure one only fact, and it may be there should have been no wound, except there had been force, neither wound nor force, unless commandment had gone before, and bidden it to have been done. But force and commandment (which in the time of Bracton were but accidents to the fact, and made the offenders therein but accessories) be now the principal fact, if the giver of that commandment be present when the felony is done. S. Appeals 94. 26. As. p. 15 11. H. 4. 41. Fi. Cor. 336 39 If a man be indicted & arraigned of the death of I. Style, Indictment of the death of a man known by two surnames. which I. Style was also known by the name of I. Noke, as well as by the name of I. Style, in this case the def. may plead, that he was at another time indicted & acquitted of the death of I. Noke, & aver, that the said I. Noke & john Stile, were one person, & not divers, and demand judgement, if he shallbe put to make answer to that indictment: in which case, notwithstanding this variance of names, he shallbe discharged, because he was indicted and acquitted of the death of the self same man, of whose death he is now again indicted and arraigned. Indicted of the same man's death. 40 If a man be killed two years past, 3. Ass. p. 15 22. Ass. p. 55 Fi. Cor. 336 and one is indicted and arraigned of his death, and acquitted, and after he that was acquitted is again of new indicted and arraigned of the same man's death, supposing that he killed him this present year: yet notwithstanding this variance, the party indicted shall show the truth of the case, and plead his first acquittal for his discharge, and be discharged: And the reason is, because one man cannot be twice killed; for the Court in this case doth use to charge the inquest with the time of the death of him who is supposed to be slain, and also whether there were any other which was killed, as the last indictment doth suppose, or not. Indictment in two counties of one offence. 41 If a man be indicted in one county of the death of another, and thereupon arraigned, & after he is indicted in another county of the same party's death, he may plead the same acquittal in bar, for that no man's life shall be twice put in jeopardy of trial for one offence, and one man can be but once slain. But it is otherwise in an indictment of robbery, for a man may be rob by one person at several times, and in several counties, and so the acquittal of one of the same robberies will not serve him for the other. And therefore if one be indicted of robbery in one county, the defendant cannot plead, 4. H. 7. 5. that he was indicted of the same robbery in another county, and acquitted, for no man can be indicted or arraigned for a robbery, but in the county where the same robbery was committed: and though the def. doth surmise, that it is but one and the same felony, yet that cannot be tried, for the county where the first indictment was taken, and the county where the last was taken, cannot join to make trial thereof. But some do affirm, that it is a good plea in an Appeal of robbery, for by the Appeal the plaintiff is to recover his goods by the common law, and so he is not upon an indictment. Indictment of rape. A man was indicted in the K. bench of a rape and robbery committed in the county of C. and he pleaded, 41. As. p. 9 that he was before indicted of the same rape before the Iust. of Assize in the county of C. and arraigned and acquitted of the same fact: And for that it was of the same fact, he was discharged. Arraigned upon an insufficient indictment or appeal. 42 It is not a sufficient plea in bar in an Appeal or Indictment of felony, to plead, that he was at another time acquitted, if there were not sufficient matter of felony in that appeal or indictment whereof he was acquitted: Co. li. 4. 45. Fitz. Cor. 414. for if there were not sufficient matter of felony in the first appeal or indictment, and the same party is again indicted of new, by an indictment which doth comprehend sufficient matter of felony, he shallbe again arraigned, because in that case he never put his life in jeopardy. For when an offendor is discharged upon an insufficient indictment, the law hath not had his end, neither was the life of the party in the judgement of law at any time in jeopardy: And the law will not suffer great offences to go unpunished. Acquit upon an erroneous appeal. 43 If one be acquitted upon an erroneous appeal, which acquittal is reversed by error, he shall now be arraigned at the K. suit, upon an indictment, 9 H. 5. 2. for that by the reversal he is become in that state, as if he had not been acquitted. But until that reversal be made, it shallbe a good plea to plead, Fitz. Cor. 444. another time acquit. And it seemeth, that the same is when the error is in Process that is not material, which the defendant doth appear and answer to the original writ. But the def. shall not any more make answer to the appellant, although the first acquittal be reversed, for so the appellant might delude the court infinitely, and the defendant should never be delivered. 21. H. 6. 20 44 If one do bring an Appeal, which hath no cause to maintain the same: Acquit upon an Appeal brought by one that hath no right. As if one which is not the lawful wife, or the next heir of him that was slain do bring an Appeal, and the defendant doth take no advantage thereof, but pleadeth not guilty, and is acquit, yet this acquittal will not serve to bar the lawful wife, or next heir of the dead, when they shall bring their Appeal, neither in this case the king shallbe barred to arraign him upon a indictment, or upon a new appeal, when the party plaintiff is nonsuit therein. 16. Ed. 4. 11. 8. H. 5. 6. 45 If one be arraigned upon an Indictment at the King's suit, One arraigned upon an indictment before the parties appeal be determined and acquitted (where, by the order of law, the King ought to have tarried until the Appeal which was depending had been determined) yet this is no error: but the foresaid plea, viz. another time acquit of the same felony, shall serve him that doth plead it. Fitz. Cor. 375. 46 If a man be indicted of felony, and arraigned at the King's suit, Acquit by battle in an Appeal. it is no plea for him to say, that at another time he was acquitted of the same felony in an Appeal, if so be that the same acquittal were not by inquest, but by battle. And the reason is, because trial by battle lieth not against the King, and therefore it is not meet that he should be bound by that trial, whereunto he neither was, Bracton. nor could be party. And yet Bracton saith, that if the appellee in an Appeal doth make his choice, to defend himself by his body, and all things be ready which do join the Appeal, battle shall be presently waged, and if in that case he that is appealed by divers, of one fact, and of one wound, do defend himself against one of them, he shall go acquit against all the residue of the appellants. And so it is at the King's suit, for by this means he doth purge his innocency against them all, as much as i● he had put himself upon the country, and the country had clearly acquitted him. Ideo quaere. 47 Because, by the common law, A murderer indicted and arraigned at the K. suit. within a year and a day after any murder or homicide had been done, the felony should not have been determined at the king's suit, for saving of the parties Appeal, wherein the party was oft-times slow, and also agreed with, and by the end of the year all was forgotten: And also for that he which will sue an Appeal, must sue it in proper person, which suit is long and costly, and maketh the appellant divers times weary thereof, which were occasions of murder and manslaughter: for the reformation whereof, by a statute made Anno 3. H. 7. St. 3. H. 7. 1. it was enacted, That if any man be slain, or murdered, and the slaiers, murderers, abettors, maintainers, and comforters of the same be indicted therefore, the same slayers and murderers, and all other accessories of the same, shallbe arraigned & determined of the same felony & murder at any time at the K. suit, within the year after the same felony & murder done, and not tarry the year & day for any appeal to be taken for the same felony or murder. And if it hap any person so named as principal or accessory to be acquitted of such murder at the King's suit, within the year and day, than the justices before whom he is acquitted, shall not suffer him to go at large, but either shall remit him again to prison, or else let him to bail after their discretion, till the year and day be passed. And if the same Felons, Murderers, and Accessories, or any of them so arraigned, be acquitted, or the principal of the said felony, or any of them be attainted, the wife, or next heir to him so slain, as case shall require, may take their Appeal of the same death and murder, within the year and day after the same felony and murder done, against the said person so arraigned and acquit, and all other their accessories, or against the accessories of the said principal, or any of them so attainted, or against the said principal so attainted, if they be then living, and the benefit of the Clergy thereof before not had. And the appellant shall have such advantages, as if the said acquittal and attainder had not been, the acquittal or attainder notwithstanding. The wife or heir of the person so slain or murdered, as case shall require, may commence their Appeal in proper person, at any time within the year after the felony done, before the Sheriff and Coroners of the County where the said felony and murder was done, or before the King in his Bench, or justices of jail delivery. And though that by force of the said statute of 3. H. 7. at another time acquitted is no plea in an Appeal of death at this day, Another time acquit, no plea in Appeal, but in Indictment. yet in an indictment of death, it is a good plea, to plead that he was at another time acquitted in an Appeal brought of the same party's death. S. Appeals 93. 48 And so it appeareth, that the before rehearsed enormities that were at the common law, and some others, touching the indicting and arraigning of murderers and manquellers, be remedied by the foresaid statute of 3. H. 7. but in other Appeals the rules of the common law do continue in force: For if a man be indicted of robbery, and he that was rob hath an Appeal depending of the same robbery, No indictment of robbery until the Appeal be tried. against the party indicted, in which Appeal he hath proceeded so far, that the Iust. may perceive that it is of the same robbery, they ought to surcease to try the appellee upon the indictment, 31. H. 6. 11 until the plaintiff hath made his declaration: For in an Appeal by writ the robbery cannot be certainly known until he hath made his declaration, though it be otherwise in an Appeal commenced by bill. 49 Though at another time convicted or attainted of the same felony, Another time convict of the same felony. was and is a good plea for him that is the second time, or more often, indicted and arraigned again upon the same felony, yet by the common law, if one had been indicted and arraigned of felony, and delivered to the Ordinary as a Clerk convict, and before he had made his purgation of the same felony, he had broken the Ordinaries prison, and escaped, he might have been another time arraigned upon the same indictment. And it was no plea for him to plead, Fitz. Cor. 232. that he was another time convict of the same felony, and delivered to the Ordinary, or that he was a Clerk, and could not answer without his Ordinary, because he remained unpurged of the felony, and did lose the benefit of his Clergy, by the breaking of prison. And yet at that time, if he had not broken the Ordinaries prison, but departed by his licence, then at another time convict should have been a good plea for him upon his second arraignment. But now sithence by the stat. of an. 18. El. St. 18. El. 6. every person which shallbe admitted to have the benefit of his clergy, shall not therupon be delivered to the Ordinary, as hath been accustomed, but after such clergy allowed, and burning in the hand, shall forthwith be enlarged and delivered out of prison by the Just. before whom such clergy shall be granted. Therefore at this day, if one be convicted of felony, and hath the benefit of his Clergy, Co. li. 4. 40. 45. and is burned in the hand, if after in any case he shall be indicted and arraigned of the same felony, it shallbe a good plea for him to plead, that he was another time convict of the same felony (because the life of a man shall not be twice put in jeopardy for one offence) yea though he shall break the prison, and departed from thence within that time after his conviction which the justices shall think convenient to detain him in prison for his further correction: for now he is not in prison for felony, but for correction. 50 It is a good plea for him that is arraigned of felony, to plead, that he is attainted of felony, Another time attainted of felony. and to demand judgement, if during this attainder he shall be put to answer to that felony whereof he is attainted, or to any other felony: for if he should be put to answer, no more could be recovered of him than is recovered, 28. E. 3. 90 neither can he forf. more than he hath forfeited, having forfeited life, lands, goods, and all that he hath: and therefore it should be to no purpose to trouble him any more. But it is otherwise, where it is to any end or purpose to put him to answer, and plead again to a new indictment, as in some special cases it may be done: As a man attainted of felony, hath also committed treason at the time of the felony committed: in this case he shall answer to the treason for the K. advantage, 1. H. 6. 5. notwithstanding his attainder of felony before: because, if he be attainted of treason, the king shall have the escheat of his lands, of whomsoever they be holden: but if the treason were committed after the felony, or at the least after the attainder of felony, than it were otherwise: for then the title which was vested in the chief Lord of whom his lands were holden, 4. E. 4. 11. cannot be devested by a matter accrued, ex post facto. And also where divers men have several Appeals of robbery against one man, though he be attainted at the suit of one of them, yet to the intent that every of them may recover his goods which were rob and taken from him, upon his fresh suit, he shallbe again arraigned at every of their suits. And it is no plea for him in this case, to plead, that he was another time attainted of felony. 51 In all cases where the defendant would discharge himself by pleading that he was attainted of another felony than this whereof he is now arraigned, The K. pard● objected against another time attainted. it may be replied for the party, or the king, that after the same attainder the K. did pardon him that felony, whereof he saith he was attainted, and his attainder thereof, 6. H. 4. 6. whereby he was restored to the law: and so he ought to answer to all other felonies, notwithstanding they were committed before this whereof he pleadeth that he was attainted: but of that felony whereof he is attainted, he shall not answer any more, after that he hath the K. pardon thereof. 52 A man attainted of felony is he, Who is said attainted, and who convict of felony. which upon his arraignment submitting himself to be tried by the country, is found guilty of felony by the verdict of xii. men, or doth confess the felony in court of Record before the judge, upon his arraignment, or is indicted of felony, and for default of appearance is outlawed, and in any of the said three cases hath his judgement of death. A man convict of felony, is he, who being indicted of felony, upon his arraignment doth submit himself to be tried by the country, and is found guilty of felony by the verdict of twelve men, and then before judgement prayeth his clergy, and hath his clergy, and is burned in the hand. This difference there is between a man attainted of felony, and a man convicted of felony, as touching their arraignments again for other offences: for a man attainted of felony, shall not be arraigned again of any other offences whatsoever, whether clergy were allowable in them or not (unless it be in some special cases before declared) because there can no more be recovered of him than is recovered, neither can he forfeit more than he hath forfeited. But because of a clerk convict, there may be more recovered than is recovered, & he may forf. more than he hath forfeited: therefore by the stat. of An. 8. El. & 18. El. it was ordained, St. 8. El. 4. St. 18. El. 6. S. Appeals 56. 57 That every person which shall upon his arraignment for any felony be allowed his clergy, shall answer to all former felonies, as though no such admission of clergy had been. If a man that is indicted of piracy doth stand mute, or will not answer directly, or etc. whereupon judgement of pain for't & dure is given against him, but he is not put to execution: and after by a general pardon by act of parliament, 14. El. Dyer. 308. all contempts, pains, and executions, be pardoned (but all piracies be except) in this case the same party may be indicted and arraigned again for another robbery upon the sea, or piracy committed upon the sea at the same time that he did the first. ❧ Mainprize and Bail. 1 WHen the defendant in case of felony is taken and arrested, he will ofttimes desire to be let to bail or mainprize: and therefore it is to be considered in what cases the prisoner by the law is mainpernable, and in what not. In what case a prisoner is mainpernable in what not. There be two sorts of offenders in felony, viz. the Principal and the Accessary. The Accessory is replevisable by the common law until the Principal be attainted, but not after, as it appeareth by Bracton, Britton, and divers judgements. But sithence that time the law hath been put in ure to the contrary, 40. E. 3. 42 43. Ed. 3. 17. 27 Ass. p. 10 2. & 3. P. & M. Dy. 120 St. 3. E. 1. 15 viz. That after plea pleaded (notwithstanding the principal be attainted) yet the accessory shallbe let to mainprize, The accessary let to mainprize. and though it be in appeal of death: And the reason is, because the stat. of W. 1. affirmeth expressly, That they which be indicted of receipt of thieves, or felons, or of commandment, or force, or aid of the felony committed, shallbe let out by sufficient surety: which stat. is expounded so favourably towards the accessary, that those be used to be let to bail which be indicted of abetment, consent, or procurement. And yet such accessories be not expressly contained in the said stat. Register. fo. 270. And so the accessory as well in case of the death of a man, as in other felony, is to be let to mainprize. 25. E. 3. 44. 44. E. 3. 38. 21. E. 4. 71. 21. Ed. 4. 25. 2 The principal in case of the death of a man, is not to be let to mainprize, The principal in death. either by the common law, nor by the stat. (but in some special cases) for if an appeal of death be commenced, which is not grounded upon an indictment (but is suggested to be begun upon malice) and that some others were indicted of the same persons death, yet because the appeal was of the death of a man, and the malice suggested was not confessed of the K. or appellants part, the Iust. would not let the appellée to mainprize. 48. E. 3. 22. And so it seemeth, that notwithstanding it be an appeal of death, yet if there be no indictment to affirm the same appeal, The principal in appeal of death let to mainprize. the Iust. upon the consideration aforesaid, 2. & 3. P. & M. Dy. 120 or such like, may let the defendant to mainprize, though he be appealed as principal. 3 An Appeal of death was removed out of the county into the K. Bench by a Certiorari, 48. Ed. 3. 22. & a Scire fac ' was sued against the plaintiff in the appeal, which was returned Nihil, and so it was returned upon the Sicut alias. And thereupon the Iust. considering that it was a mischief to the plaintiff to lose his suit, and to yield damages, whereas he was never warned, and peradventure hath somewhat in another county: and on the other side it was inconvenient for the appellee to remain continually in prison: The principal in appeal of death let to mainprize. therefore they awarded another Scire fac ' against the appellant, returnable at a certain day, before which day they would be advised what was by law to be done, and in the mean time they did let the appellee to mainprize. Excommunication in the plaintiff; 4 If in an Appeal the def. do plead Excommunication in the plaintiff, the appellee shallbe let to mainprize from day to day, until the plaintiff be absolved, 3. As. p. 12. 13. E. 4. 8. though it be in an Appeal of death: or otherwise the appellee should remain in prison until the pl. were assoiled, which peradventure will never be. And in respect of this mischief, it was ordained by the stat. of 3. H. 7. St, 3. H. 7. 1. That he which is within the year acquitted of murder at the K. suit, shallbe sent to prison again, or otherwise let to bail until the end of the year, within which time the party is to have an Appeal, if he will. 5 Because Sheriffs and others did take & keep in prison some persons accused of felony, and presently did let out to bail such as were not replevisable, and kept in prison such as were mainpernable, to the intent to get of the one, and to grieve the other. And forasmuch as it was not before determined, which persons were mainpernable, Not bailable by the common law. and which were not, but only they that were taken for the death of a man, by the commandment of the K. or his Iust. or for the forest: therefore by the stat. of W. 1. viz. 3. E. 1. it was ordained, St. 3. E. 1. 15 That prisoners which before were outlawed, Who are mainpernable, and who not. and they which have abjured the realm, provers, and they which be taken with the manner, and such as have broken the K. prison, thieves openly defamed & known, and such as be appealed by provers, so long as the prover doth live, except he be of good fame: and such as be taken for burning of a house feloniously done, or for false money, or for counterfeiting the King's Seal: Or persons excommunicate, taken at the Bishop's request, or for a manifest offence, or for treason touching the King, shall be in no wise mainpernable by a common writ, nor without writ: But souch as be indicted of larceny by inquests taken before Sheriffs or Bailiffs by their office, or of light suspicion, or for petit larceny that amounteth not above the value of xii. d. if they were not guilty of some larceny before, or guilty of receipt of thieves or felons, or of commandment, or force, or of aid in felony done, or guilty of some other trespass, for which one ought not to lose life or member: And a man appealed of an approver, after the death of the approver, if he be no common thief, nor defamed, shallbe let out by sufficient surety, whereof the Sheriff will be answerable, and that without giving any part of their goods. Bailement by the Sheriff. If the Sheriff or any other let one go at large by surety, St. 3. E. 1. 1● which is not replevisable, if he be Sheriff, Constable, or any other bailiff of fee, which hath the keeping of prisoners, and is thereof attainted, he shall lose his fee and office for ever. And if the Undersheriff, Constable, or Bailif of such as have fee for keeping of prisoners, do it contrary to the will of his Master: or any other bailiff being not of fee, they shall have iij. years imprisonment, and make fine at the K. pleasure. Withholding of prisoners replevisable. Whosoever doth withhold prisoners replevisable, St. 3. E 1. 15. after they have offered sufficient surety, shall pay a grievous amerciament to the K. & he that doth take any reward for the deliverance of such, shall pay double to the prisoner, and also a grievous amerciament to the King. 6 By the foresaid Stat. of West. 1. 15. it doth appear that in four cases a man was not mainpernable at the common law, In what cases no mainprize at the common law. viz. they that were taken for the death of a man, or by the King's commandment, or of his justices, or for the forest. Touching the death of a man it is entreated of before. And as concerning the King's commandment, this is intended the King's commandment, The king's commandment. by his own mouth, or by his council which is incorporate to him, & do speak with the King's mouth, and by authority from him: Or otherwise, if those words should be taken his general commandment, it may be said that every Capias in a personal action is the King's commandment, for it is Precipimus tibi quod capias etc. and yet in that case the defendant is replevisable by the common law. And as touching the justices commandment, The justices commandment. this shall be intended their absolute commandment: for if it be their ordinary commandment he is replevisable by the Sheriff, saving in certain cases prohibited by the statute. 7 Because in times past divers persons that were indicted of felonies, robberies, & larcenies did remove the same inditements into the K. Bench, & there yielded themselves prisoners, & were presently bailed by the marshal's of the same Bench, and after did lie in wait to kill or misuse their inditors: And also for the certain persons appealed of felony, after the Exigent awarded, did yield themselves in the K. Bench, St. 5. Ed. 3. 8 & then were let to bail by the marshal's of the said bench, for the prevention whereof it was enacted by a statute made ann 5. E. 3. The marshal of the King's bench shall bail no prisoner. That such indictees and appellees shallbe safely and surely kept in prison, according to the charge which the said marshals shall have of the justices. And the marshal's of the K. Bench shall not bail any felons, but shall keep them in prison, and shall not suffer them to go wandering abroad by bail, nor without bail. And if any such prisoner be found wandering out of prison by bail, or without bail, & that be proved at the K. suit, or the parties, the marshals which shallbe found guilty thereof, shallbe half year imprisoned, & ransomed at the King's pleasure. And the justices shall inquire thereof when they see cause. And if the marshals suffer the prisoner to escape by their assent, they shallbe at the law as before time they have been. And so it appeareth by this Stat. that imprisonment by commandment of a justice, was not sufficient to restrain bailment in all cases, where bailment was not prohibited by the law, A justices ordinary commandment, and absolute. until the foresaid Stat. of ann 5. E. 3. was made, and that is to be intended of an ordinary commandment of a Iu. for if he do give an absolute commandment, the prisoner is not bailable: As if the justice command one to prison, without showing cause why he doth so command, or for misdemeanour done in his presence, or for some other cause, which lieth in the discretion of the justice more than in his ordinary power. 8 The fourth cause why a man is not replevisable by the common law, is the forest: St. Char. Forest. 16. for whereas by the Statute of Charta forestae, made ann 9 H. 3. and confirmed by King E. 1. The king did grant for him and his heirs that of trespasses committed in his Forests of vert, and venison, that the Foresters in whose Bailiwicks such trespasses should be committed, should present the same trespasses at the next Swanimot, before the Foresters, Verderers, Regardors, and Agistors, and other ministers aforesaid, by the oaths as well of Knights, as others, wise, and lawful men, and not suspicious of the parts next adjoining, and nearest where those trespasses shallbe so presented, and where the truth may best and most certainly be inquired of, and the same truth being once found out, those presentments by the common assent and agreement of all the Officers aforesaid, shallbe solemnly written & sealed with their seals. And if any indictment be made in other manner, it shallbe accounted void. And because the chief wardens of Forests did not observe the said order, but that divers people were disherited, ransomed, and undone by the chief wardens of the Forest on this side Trent, and beyond, and by other ministers, against the form of the foresaid great Charter of the Forest. Therefore by the Stat. made ann 1. E. 3. it was ordained, Punishment for vert or venison. St. 1. E. 3. 8 That no man shallbe taken or imprisoned for vert or venison, unless he be taken with the manner, or else indicted in form aforesaid. And then the chief warden of the Forest shall let him to mainprize, until the Eire of the Forest, without taking any thing for his deliverance. And if the said warden will not do it, there shallbe a writ awarded out of the Chancery (which was in ancient time ordained for such persons so indicted) to let him to mainprize until the Eire. And if the said warden after the receipt of the same writ will not deliver to mainprize such person indicted, without delay, than the plaintiff shall have a writ out of the Chancery, to the Sheriff, to attach the said warden to be before the K, at a certain day, to answer wherefore he hath not replevied him that was so taken: And the Sheriff calling to him the Verderers shall deliver him which was taken to mainprize in the presence of the Verderers, and shall deliver the names of the mainpernors to the same Verderors to answer in Eire before the justices. And if the chief warden shall be thereof attainted, the plaintiff shall have his triple damage awarded unto him, and the warden shallbe committed to prison, and ransomed at the King's pleasure. And by the Statute of ann 7. R. 2. it was ordained, St. 7. R. 2. 4 That if any officer of the Forest doth imprison any person, or doth compel any person to make any Obligation, or ransom unto him, against the ordinance aforesaid, and is thereof attainted, he shall pay to the party grieved his double damages, and make fine to the King. 9 Whereas the before rehearsed stat. of West. 1. doth begin with those prisoners which before were Outlawed, St. 3. E. 1. 15 etc. yet there be some cases wherein such as be outlawed may be let to mainprize: as where in an appeal of robbery or other felony (being not for the death of a man) the defendant doth come in by Capias utlagatum, In what cases he that is outlawed may be let to mainprize. and plead misnaming of himself, 5. H. 7. 16. and hath a Scire facias against the appellant: In this case he shallbe let to bail. And the same law is, if he which is outlawed for felony be taken, and brought to the bar, 19 H. 6. 2 and allegeth error in the Record, the Court of favour will suffer him to find mainprize, and to go and seek to purchase his writ of Error. Mainprize during the Provers life. 10 And the foresaid stat. of West. 1. saith further, St. 3. E. 1. 15 that they which be appealed by Provers shall not be let to mainprize, so long as the Provers do live, if they be not of good fame: & yet in some cases he that is appealed by a prover shallbe let to mainprize during the Provers life: as where the Approver doth waive his appeal, and that the defendant is not appealed by another approver, 25. Ed. 3. 42. he shallbe let to mainprize: for if he be appealed by another approver, he shall not be let to mainprize. And if the appellee do vanquish one Approver in battle, yet if he be appealed by another Approver, he shall not be let to mainprize. St. 3. E. 1. 15 11 Whereas by the words of the foresaid Statute of West. 1. such as be indicted of larceny by Inquests taken before Sheriffs or bailiffs by their office, shallbe let at liberty upon sufficient surety. Registrum de manucaptione. Yet it appeareth by the Register, that they shall not be let to mainprize, if they be not also of good fame. Mainprize upon good name. But if they be of good fame, they are to be let to mainprize, notwithstanding they be not indicted before Sheriffs or bailiffs, but before any other justice that hath authority to hear and determine felony, and that aswell the principals as the accessories: for the said Stat. of West. 1. doth no more restrain the principals, than the accessories, in those cases where the same statute doth not prohibit to let to mainprize. As if a man be indicted of Burglary as principal, The principal in Burglary or robbery mainpernable. yet he may be let to mainprize: 29. Ass. p. 44 Registrum. And the principal in an appeal of Robbery may be let to mainprize. And in the Register there is a writ de Manucaptione granted in that case. 12 Though it doth not appear by any words of the foresaid stat. of West. 1. that it doth prohibit the bailment of those which be attainted by verdict: yet it is to be intended, that the same Stat. doth as well prohibit the bailment of those which be attainted by verdict, as it doth of them who be attainted by outlawry: 15. H. 7. 9 for seeing before the Statute of 18. El. 6. if a clerk convict had been delivered to the Ordinary, he was not mainpernable, which is a stronger case than a man attainted by verdict. Therefore it is clear, No bailment of a prisoner attainted. that a man attainted is not mainpernable: for if a prisoner after that he hath pleaded not guilty, be attainted by verdict, that he killed a man in his own defence, or by misfortune, yet he shall not be let to mainprize: for it is in the King's pleasure whether he will grant him pardon or not. 25. Ed. 3. 42 Fi. Cor. 354 297. But in that case the justices commanded the Sheriff to put no irons upon the same prisoner, and to show him as much favour as he could. And the Iu. are to certify the King of the said verdict, who at his pleasure may write to the Sheriff to bail the same prisoner. No bailment of a prisoner convicted. And if a man that is arraigned of homicide doth plead not guilty, and is found guilty, & doth pray his Clergy, 2. El. Dyer 179. and is repried without judgement, he is not bailable, for he is more than vehemently suspected, being convicted of felony. St. 3. H. 7. 3. 13 Whereas by the stat. of ann 3. H. 7. it was enacted, that no prisoner arrested for felony should be let to bail or mainprize by any one Iu. of peace, but by the whole justices, or at the least by two of them, whereof one to be of the Quorum: Since the making of which statute one justice of peace in the name of himself, and one other of the justices his companion, not making the said justice party nor privy unto the case wherefore the prisoner should be bailed, hath oft times by sinister labour and means set at large the greatest and notablest offenders, such as be not replevisable by the laws of this Realm: and yet the rather to hide their affection in that behalf, have signified the cause of their apprehension, to be but only for suspicion of felony, whereby the said offenders have escaped unpunished, to the encouragement of thieves, and evil doers: For reformation whereof by a stat. made Anno 1. & 2. P. & M. it was ordained, St. 1. & 2: P. & M. 13 That no justice or justices of Peace shall let to bail or mainprize any such person or persons which for any offence, Bailing of offenders by Iust. of peace. or offences by them or any of them committed, be declared not to be replevisable or bailed, or forbidden to be replevied or bailed by the stat. of West. 1. made Ann 3. E. 1. And furthermore, that any person or persons arrested for manslaughter or felony, or suspicion of manslaughter or felony, being bailable by the law, shall not be let to bail or mainprize by any Iu. of Peace, if it be not in open Sessions, except it be by two Iu. of peace at the least, whereof one to be of the Quorum: and the same justices to be present together at the time of the said bailment or mainprize, which bailment or mainprize they shall certify in writing, subscribed or signed with their own hands at the next general jail delivery, to be holden within that county, where the said person or persons shallbe arrested or suspected. And the said Iu. or one of them being of the Quorum, when any such prisoner is brought before them, for any manslaughter or felony, before any bailment, or mainprize, shall take the examination of the said prisoner, and information of them that bring him, of the fact and circumstances thereof, and the same, or as much thereof as shall be material to prove the felony, shall put in writing before they make the same bailment: which said examination, together with the said bailment, the said Iu. shall certify at the next general jail delivery to be holden within the limits of their commission. And every Coroner upon any inquisition before him found, The Coroners duty upon an inquisition found. whereby any person or persons shall be indicted for murder, or manslaughter, or accessory or accessories to the same, before the murder or manslaughter committed, shall put in writing the effect of the evidence given to the jury before him, being material. And aswell the said Iu. as the said Coroner shall have authority by this act to bind all such by recognisance, or obligation, as do declare any thing material to prove the said murder, or manslaughter, offences, or felonies, or to be accessary or accessories to the same, as is aforesaid, to appear at the next general jail delivery to be holden within the county, city, or town corporat, where the trial thereof shallbe, then, & there, to give evidence against the party so indicted at the time of his trial, and shall certify aswell the same evidence, as such bond & bonds in writing, which he shall take together with the inquisition or indictment before him taken & found, at, or before the time of his said trial thereof, Certificate of a bond taken by a Iu. of peace. to be had or made. And likewise the said Iu. shall certify all & every such bond taken before him, in like manner as before is said of bailments and examination. And in case any Iu. of peace, or Quorum, or Coroner shall offend in any thing contrary to the true intent and meaning of this act, than the Iu. of jail delivery of the shire, city, town, or place where such offence shall happen to be committed, upon due proof thereof by examination before them, shall for every such offence, set such fine on every of the same Iu. of peace, & Coroner, as the same Iu. of jail delivery shall think meet, and shall estreat the same, as other fines, and amerciaments assessed before justices of jail delivery ought to be. Provided always, that Iu. of Peace, and Coroners within the city of London, and the County of Middlesex, & in other Cities, Boroughs, and Towns corporat within this Realm, and Wales, shall within their several jurisdictions have authority to let to bail felons and prisoners, in such manner & form as they have been heretofore accustomed. This act or any thing therein contained to the contrary notwithstanding. And also shall take examinations & bonds as is aforesaid upon every bailment by them or any of them to be made, and shall certify every such bailements, bonds & examinations by them, or any of them taken, or made, at the next jail delivery to be held within the shire, city, borough, or town, where their several jurisdictions extendeth, upon like pain and forf. as is before limited in this present act. 14 Because Sheriffs and others did in times past let to mainprize notorious and known thieves, being taken and imprisoned for murder, and other felonies, S. 3. E. 1. 15. and such as be not mainpernable, contrary to the form of a Statute made touching those which be replevisable, and which not, and thereby such malefactors as were not replevisable were let to mainprize. And for to deliver them deceitfully before the coming of the justices in Eire, or other assigned for their deliverance, they procured and suborned by themselves, and by their friends, jurors of the county, & some they threatened: And so partly for fear of the Sheriffs and others which did let them to bail, and partly for fear of those felons which were so let to mainprize, many robberies and homicides were hidden and concealed from the justices of jail delivery: for the prevention whereof, by a Stat. made ann 27. E. 1. An. 27. E. 1. 3. entitled the Stat. of fines levied, it was ordained, That justices assigned to take assizes, in every county where they take assizes, presently after the assizes taken, shall remain both together if they be Lay. And if one of them be a Clerk, than one of the most discreet knights of that county being associate unto him, by the kings writ, shall deliver the jail in that county, aswell within liberties as without, of all the prisoners, according to the usual form of delivering of gaols. Bailement of offenders by Sheriffs. And then the same justices shall inquire which sheriffs and others have let to bail any prisoners that were not replevisable, or have offended in any thing contrary to the Stat. of West. 1. and to punish and chasten them in every respect, according to the form of the said Statute. 15 And for the causes aforesaid it was ordained by the stat. of ann 4. E. 3. St. 4. E. 3. 2 that good and discreet persons (other than of the places if they may be found sufficient) shallbe assigned in all the counties of England to take assizes, juries, and certifications, and to deliver the gaols: And the same justices shall take the assizes, juries, and certifications, & shall deliver the gaols thrice in the year at the least, and more often if need be: And there shall be assigned good & lawful men in every County to keep the peace, and at the said assignments mention shallbe made that such as shallbe indicted or taken by the said wardens shall not be let to mainprize by the Sheriffs, nor by any other, if they be not mainpernable by the law: Nor that such persons indicted shallbe delivered, Bailement of offenders by sheriffs and others. but according to the course of the common law. And the justices assigned to deliver the gaols shall have power to deliver the gaols of those that be indicted before the gardens of the peace: And the same gardens shall send before the said Iust. their inditements. And the same justices shall have power to inquire of Sheriffs, Gaolers, and others, in whose custody such persons indicted shallbe, if they delivered or let to mainprize any so indicted, which be not mainpernable, & to punish the same Sheriffs, Gaolers, and others, if they have done any thing contrary to this Statute. This statute of 4. E. 3. doth make no mention that the justices of jail delivery shall punish sheriffs and others according to the foresaid statute of West. as the other statute of 27. E. 1. doth, but ordaineth generally that they shallbe punished, without determining in what manner: And yet it is to be intended that they shallbe punished according to the form of the said Stat. of West. 1. And moreover the said justices of jail delivery may punish them by the common law, 25. E. 3. 39 for a negligent escape: Where mainprize is a negligent escape. for it is a negligent escape to let one to mainprize, who by law is not mainpernable. And one justice did in that case set a fine upon the Sheriff, for the like Bailement, a hundred shillings. 16 In all cases where a statute doth ordain that an offenders body shallbe imprisoned at the King's pleasure, Imprisonment at the King's pleasure. the prisoner cannot be delivered or let to mainprize, until the King hath signified his pleasure of him. As, if one be imprisoned for going or riding armed, contrary to the Statute of Northampton, made Anno 2. E. 3. 3. 24. Ed. 3. 42. 17 There is a difference between bailment in felony, and bailment in a personal action: The difference between bailment in felony, and in a personal action. for in felony the bailment shall contain a certain sum of money to be forfeited, if the prisoner do not appear at a day prefixed. And in a personal action, it is but finable. 21. H. 7. 20. And the bailment in felony is Ad standum rectum de latrocinio praedicto secundum legem & consuetudinem regni nostri Angliae, as it doth appear by the writs of Manucaptione in the register, which do imply as much as they that have him to bail, shall not only cause him to appear, but also to answer. 18 If one do find mainprize in Court, it is presently matter of Record, Mainprize is matter of Record. 8. Ed. 4. 5. though it be not entered into the Roll until the next Term. Confession of the Offence. WHen a prisoner is appealed, or indicted of treason, or felony, and brought to the bar to be arraigned thereof, and his indictment is read unto him, he is asked by the Court what he will say unto it: Then either he doth confess the offence, and the indictment to be true: or he estrangeth himself from the offence, and pleadeth, Not guilty: An offender pleadeth one of three pleas. or else he doth answer indirectly, and so in effect he standeth mute, and maketh no answer. Of the which later two I will entreat hereafter. 2 And therefore beginning with the prisoners Confession of the offence upon his arraignment: That confession may be made in two sorts, Confession in two sorts. and to two several ends, whereof the one is, he may confess the offence whereof he is indicted openly in the Court before the judge: and that he hath committed that act whereof he is indicted and arraigned, and submit himself to the censure and judgement of the Law. Which Confession of the offence by the prisoner himself in person, is the most assured answer, and best satisfaction that can be delivered to the judge to condemn the offender, and to all the hearers to give approbation thereof: So that the said Confession do proceed freely, and of his own good will, without menace, Confession must be tree and without menace. threats, rigour, or other extremities: For if the judge do perceive that the offenders confession doth grow upon either of those extremities, he ought not to record the confession, but to cause the prisoner plead to the offence, not guilty. As, a woman was indicted for the felonious stealing of bread to the value of two shillings, 27. As. p. 40 and being arraigned thereof, she confessed the felony, and said that she did it by the commandment of her husband, and the judges for pity would not record her confession, but caused her to plead, not guilty to the felony: whereupon a jury being charged, it was found that she did steal the bread by the compulsion of her husband, against her will, by which means she was discharged. And in like sort if the judges do perceive that the offender doth confess the offence in mistaking of the Law, they may show him that favour, as not to record his confession, but cause him to plead to the indictment, not guilty. As a man being indicted of the death of another man, pleaded, that he and one B. having a quarrel, 22. As. p. 71 and fight each with the other, the party of whose death he was indicted, came between them to part the fray, and he against his will, by misfortune, gave him a blow, whereof he died. For though by the Law this was felony in him being fight, and intending to hurt or kill B. yet he did mistake the Law therein, and did not take it to be so, for that his quarrel was not towards him which he slew, but to B. who had no hurt. And further, this confession of the Offence is not so penal to the prisoner, (though he doth it freely, and without menace, or other extremity) that he is thereby presently attainted or condemned of that felony, but in many cases he may be saved from death, the most bitter rigour of the Law, by the benefit of his clergy, or by the King's pardon. He that confesseth doth become an Approver. 3 The other kind of confession of felony that is made by a prisoner at his arraignment, openly in court before the judge, is when the prisoner doth confess the indictment to be true, and that he hath committed the offence whereof he is indicted, and then doth become an approver, viz. an accuser of others, who have committed the same offence whereof he is indicted, or other offences with him, and then doth request the judge to have a Coroner assigned unto him to whom he may make relation of those offences, and of the whole circumstances thereof. Confession before the Coroner. 4 There is also a third kind of confession made by an offendor in felony, which is not in Court before the judge, as the other two be, but before the Coroner in a church or privileged place, whereupon the offendor by the ancient Law of this Realm is to make his abjuration out of the Realm: Of which approving, and abjuration, I will write in the two next chapters. Approver. AN Approver is a fellow that hath committed a felony, Who is an Approver. and after confesseth the same, and then doth appeal and accuse others, who were helpers or coadiutours with him to commit the same felony: which thing being done, he is thereby called an Approver, who in latin is termed Probator, for that he must prove that, which is contained in his appeal or accusation. And the proof must be by battle, or by the verdict of twelve men, at the choice of him who is appealed. And if he do prove it, the kings of this Realm have used to grant him pardon of his life, Britton. because he doth fight for the peace of the Realm, and doth deliver the country of malefactors: for he is to make covenant or promise to the judge, who will be suitor to obtain his pardon, how many offenders he will convince, and accordingly he is to vanquish them in battle, attaint them by verdict, or cause them to flee, and so by that means to become outlaws. But yet he shall be banished the Realm, Bracton de coron, c. 34. and not continue therein, An Approver banished. though he would find pledges for his good abearing. 19 H. 6. 47. 12. Ed. 4. 10 Fi. Cor. 231 387. 2 A man imprisoned for felony, may approve of treason, if he will, Of what offences approvement may be. and in like sort, he that is imprisoned for treason may approve of felony, if he will: for when the justices do admit him to approve, they do swear him upon a book, to approve of all felonies and treasons that he doth know. And yet many do affirm, that approvement must be only of the thing, whereof the approver is indicted, Bracton de coron, c. 33. 25. Ed. 3. 39 and of none other, and of that treason or felony, which he himself with others did commit, and that approvement of all other offences is void. As if one will appeal an other for robbing of him, viz. of the Approver, it is void: Or if one will appeal an other, for procuring the said approver to commit a felony: Or that where he the said Approver had committed a felony, the appellee knowing thereof did feloniously receive him and comfort him, 10. E. 4. 14. 40. Ass. p. 39 it is void: because those offences he could not commit, for he could not rob himself, nor be accessory to himself. Sed de hijs quaere: Quaere. Seeing the approver is sworn to approve of all the felonies and treasons that he doth know. Approvement in an Indictment, and not Appeal. 3 A man may approve in an indictment of felony, 11. H. 7. 5. Fi. Cor. 113 but not in an appeal of felony, for if he should approve in an appeal of felony, he should thereby delay the Plaintiff in the appeal to have execution of him. And in like sort, if one that is indicted of felony, doth become an approver, and after an appeal is sued against him, upon the same indictment: Fi. Cor. 442 in this case he shall surcease to proceed any further in his approvement. But upon an indictment of felony, the prisoner which is arraigned may confess the felony, pray a Coroner, and so approve. And though some have thought, that if a prisoner be not indicted, but doth stand at the bar, as one that is to be delivered by Proclamation, if he will refuse the benefit thereof, confess a felony, Fi. Cor. 231 and pray to become an approver, that he shall be thereunto received: And some others have been of opinion, that if a man be in prison but for suspicion of felony, he may confess the felony before a Coroner, and become an approver: But that cannot be by the Law, for a man cannot be attainted by his confession, if he be not indicted or appealed thereof before: and it is always requisite, for him which shall become an approver, An Approver must confess the felony. that his confession be made upon such matter, upon which the judge at all times at his pleasure, may give judgement to attaint him. Before whom one may approve. 4 One may become an approver before those, who have authority to assign him a Coroner, as the justices of the King's Bench, the justices in Eire, and the justices of jail delivery: But so can not justices of Peace, and therefore a man can not become approver before them. 2. H. 4. 19 9 H. 4. 1. Neither can a man become an approver in a Court Baron before the Steward and Suitors: Nor in the County court before the Sheriff and Suitors: Nor before any other special judge, unless his Commission doth extend thereunto. How an Approver shall use himself. 5 He that will become an approver, must when he is at the bar before the judge, confess the felony, whereof he is arraigned, and pray that a Coroner may be assigned unto him to hear his approvement or appeal against others: for without confession of the offence, whereof he is arraigned, Fi. Cor. 441 2. H. 7. 3. 21. Ed. 3. 18 19 H. 6. 47. Fi. Cor. 440 he cannot pray a Coroner. No approvement after pleading. And this confession must be at the beginning, before he hath pleaded any plea to the contrary thereof: For if he will plead not guilty, he cannot after waive that plea, and confess the felony, and pray a Coroner. And the reason is, because it cannot be intended, that he will prove that, which he hath affirmed against others, when he hath showed himself so false and unconstant in his answer before: for he is called an Approver, viz. Probator, to the intent that he shall prove that which he allegeth against others, whereof there is small hope to be conceived, when in the beginning he hath made a lie of himself: for if he will have his approvement allowed for good, An Approver must tell truth he must always be found to speak truth, without any lying. And when the Court doth perceive that he hath made a lie, 25. Ed. 3. 42 they presently take his approvement from him, and give judgement, that he shall be hanged. As, an approver did appeal divers, and the Sheriff and Coroners did testify, that there were none such in that county, and without further inquiry, the approver was adjudged to be hanged. And if upon the appeal of an approver, 21. H. 6. 34 process be awarded against those which he doth appeal, and the Sheriff returneth non sunt inventi, judgement shall be given, that the approver shall be hanged. And in like sort it is, Fi. Cor. 456 if an approver do appeal several persons in several counties, and processes be awarded against them, until some of them be attainted, and some of them depend in process not attainted, and the justices be informed by credible persons of the same county, wherein they were appealed, that there be no such men to their knowledge in rerum natura, the approver shall be hanged. An approver did appeal two men in London, and process was awarded against them, and it was returned, that there were no such men dwelling in the city of London, and the approver agreeing to the same return, Fi. Cor. 460 said that they were dwelling within the city of Lincoln, and he was not thereunto received, but was adjudged to be hanged: So that if there be any falsehood or lying in the approver, be it before his approvement or after, and that the court do perceive it, they will take his appealing from him, and adjudge him to be hanged. And if they do otherwise, Approvement after pleading not guilty. it is more of favour than of right: 12. Ed. 4. 10 for of favour the court may allow the prisoner to waive his plea of Not guilty, and to confess the felony, and to become an approver. 21. H. 6. 35 And if an approver do appeal one, who by his own confession is out of the Realm, he shall be hanged: for the appellee cannot be attainted at his suit; for though he should be outlawed, yet he may reverse it at his return for that cause. 6 When a prisoner upon his arraignment doth confess the felony, An Approvers oath. and prayeth a Coroner, which is assigned unto him by the court, he must be sworn in the same court before his departing, to appeal of all felonies and treasons which he doth know: and the court shall appoint him a number of days, wherein to make his appeal, in the which days, and in every of them he ought to appeal: for if three days be appointed, and in two of them he doth appeal, 12. Ed. 4. 10. 26. As. p. 19 Fit. Cor. 439 and the third day he will affirm to the Coroner, that he can say no more, and the Coroner doth report the same to the court, judgement shall be given, that he shall be hanged. 7 An approver shall have wages of the King every day that is assigned him by the court to approve in, viz. a penny a day. And some do affirm, An Approvers wages. that he shall have no wages, Fi. Cor. 439 until he hath made his proof by vanquishing some appellee in battle, or by convicting him by verdict, and then he shall have wages of the King for every day. 8 When a Coroner is assigned to an approver, An Approver set at liberty. the approver must he let out of prison, to the intent that he may approve or appeal of his own free will being at liberty, without any dures: for if it be by dures, when he cometh again before the justices, he may rehearse his appeal, and disavow it for that cause, which shallbe tried by the examination of the Coroner upon his oath. Fi. Cor. 118 169. 255. And if the Coroner do say, that the same appeal was not by dures, the appeal shall stand, and the approver shall be hanged. And when the approver hath made his appeal before the Coroner, he shall come again before the justices, and rehearse his appeal before them (for they will not read his appeal unto him) and if he do fail in the rehearsal of his appeal, 26. As. p. 19 in any word, otherwise than the Coroner hath recorded it, he shall be hanged: as if in his rehearsal he do say, that there was a black horse stolen, where it it was recorded by the Coroner, a red Horse: An Approvers appeal must be certain. For the Approver must declare the thing certainly, with all the circumstances thereof, without any varying or alteration: Bracton. and he must know the person, whom he hath appealed, when he is brought into question, for if he know him not, it is to be presumed, that they were never companions. Process against the appellees. 9 After an Approver hath made his appeal before the Coroner, if the appellees be dwelling in the County, where the appeal is made, the Coroner hath authority to award process against them until the Exigent, and to direct his process to the Sheriff to serve. But so he cannot do, 29. Ed. 3. 42 if the appellees be dwelling in another county, for than he must not award process against them, but refer it to the justices, before whom he is to record the same appeal. And they may award process as the justices of the King's bench and justices in Eire may do, who may award process by the common law, and justices of jail Delivery by the statute De Appellatis, made Anno 28. Ed. 1. which hath ordained; St. 28. Ed. 1. That whosoever shallbe appealed by any Approvers remaining in the gaols, which the justices of jail delivery shall deliver, in what places soever of the Realm the persons appealed shall remain, immediately the Sheriff of that county, where such persons appealed be conversant, or may be found, shall be commanded by the King's Writs under the testimony of the same justices, that he shall apprehend those persons appealed, and convey them to the jail, where the approvers, by whose appeal they be apprehended, be imprisoned. And the Sheriff or Gaoler of that prison shall receive them: and there they shall answer before the same justices. And if they put themselves upon the country, the justices shall send by a judicial Writ to the Sheriff of the County, where the felony was committed, that he shall return an inquest before them, at the place, where the approvers do remain, at a certain day. Pleas for the Appellee against the Approver. 10 It is a good exception for the appellee in his own defence to allege against the approver, that the approver is a person attainted of treason, 11. As. p. 27. Fi. Cor. 387 443 21. Ed. 3. 17 or felony, and to show how, viz. either by verdict, outlawry, or abjuration, or in any other manner: for such a person is out of the Law, and so disabled to appeal or accuse others. And the same law is, if the approver be a clerk convict, for he cometh now too late to confess a felony, 17. Ed. 3. 13. when he hath pleaded not guilty thereunto before, which was found false at his own suit; and therefore it cannot be intended, that the thing he saith now is true. And although he had his clergy upon confession of the felony, An Approver convict of felony. yet he shall not now become an approver, for that he said nothing at that time when he ought to have approved: and therefore the Law cannot intend, that he hath any thing to say now that is true, seeing he would not speak it at that time, when he might have been heard. But in the foresaid cases, if the approver can show any sufficient matter, which doth restore him to the law, 21. Ed. 3. 17 as the King's pardon, and such like, than the appellee shall answer to the approver. S. Appeals. 92. An appellee cannot appeal others. 11 If he which is appealed by an approver will confess the appeal, and pray that he may become an approver, and appeal others, he shall not be received thereunto, for several causes: one is, for that he is appealed of felony, and not indicted of felony; and in an appeal, there lieth no approvement: another cause is, for that if his approvement should be of the same felony, he should thereby falsify the appeal of the first approver, in that he did not at the first discover all his companions, being sworn thereunto. And a third cause is, Fi. Cor. 113 for then by that means approvements would be infinite, and also the appellee is in a sort out of the law, for that the approver hath deraigned an appeal against him. 21. Ed 3. 18. Fi. Cor. 231 12 It is a good exception for the appellee to object against the approver, Approver not in prison for felony, or at liberty. that the approver is not in prison for any felony or treason, but for debt, or trespass, or some other offence: or to say, that the approver is not in prison, but at large; for he cannot be an approver, unless he be first indicted of felony, and doth confess it before a judge, and then become an approver. Bracton. 13 It is a good plea (as some do affirm) for him that is appealed, The appelleé an honest and credible man. to say, that he is a lawful man, and in the frank pledge, and in the Assize of our sovereign Lord the King, and that he hath a Lord, which will be his pledge. And if that be traversed, and found for the appellee, he shall be discharged thereby. Sed quaere. Fi. Cor. 322 14 In an appeal by an approver, the appellee may plead, General pleas in Bar of the appeal. that the same approver is a priest, not of perfect memory, deaf, dumb, a lazar, a natural fool, a woman, a man above threescore and ten years of age, or within age, or that he is mayhemed by some other, and not by the appellee, for that in these cases the approver cannot deraigne or wage battle with him. S. Appeals. 93. 15 In divers cases, if the appellant do surcease to prosecute his appeal, Where the King may pursue an appeal begun the king may pursue it: for the appellant may by several means leave off to prosecute his appeal, 3. H. 6. 50. as by Non-suite, Release, Retraxit, or a woman by taking a husband during the suit of appeal: for in all these Cases the appeal doth cease by the act of the party; & therefore in which case soever that Cesser is after declaration in the appeal, the Defendant shall not go at liberty, but shall be arraigned at the King's suit upon the same declaration: for that it doth appear there is a felony committed, and the same is not yet tried. And the same Law is, if the appeal do cease by the act of God, as if the appellant do die: 21. Ed. 3. 18 Fit. Cor. 369 Or if it cease by the act of the Law, as if the appellant after his appeal made be hanged: Or if the appellant do take the privilege of his Clergy; for an appeal by an approver is a great presumption against the Defendant, that he is guilty of the offence whereof he is appealed, and that is for the great punishment which the appellant is to suffer, if he at any time do fail of his appeal, viz. death. And an appeal doth work a greater presumption against the Defendant than an Indictment doth: 4. Ed. 4. 10 for that it is used, if a man be appealed and indicted of one offence, and the Plaintiff in the appeal after declaration is Non-suite; the Defendant shall be arraigned at the King's suit upon the declaration in the appeal, and not upon the Indictment: But this presumption riseth where the appellant hath appeared to his suit, 8. Ed. 4, 25. and declared: for until that time, it carrieth not with it any presumption. Because any man may sue a writ of appeal out of the Chancery in a stranger's name, and find pledges to prosecute it, and cause the Writ to be delivered to the Sheriff of Record, that stranger not knowing thereof; in which Case it shall not be said that stranger's suit, until he hath appeared in proper person thereunto, and declared: 7. H. 7. 5. Fi. Cor. 384 for until that time, Non-suite in the appeal is not peremptory to the stranger. Neither shall the Defendant be arraigned at the King's suit, by this Non-suite any more than if he had not been Non-suite. But in that Case, if a stranger do bring a new appeal against the Defendant, the Defendant shall answer him as he should have done if no such Non-suite had been. But the Law is otherwise in an appeal commenced by Bill, for that suit of necessity must be made by the party himself in his own proper person, 22. As. p. 97 and his appearance must be recorded by the Sheriff and Coroners, and the year, day, and place expressed, where, and when the felony was committed, and who were principals in the same felony, and who were accessories. And so in an appeal by Writ, the Plaintiffs Non-suite before declaration, doth give the King no advantage against the Defendant: but in an appeal commenced by Bill before the Sheriff and Coroners, or in an appeal by an approver it is otherwise, for in such an appeal, all the certainty of the felony is declared and comprised. 2 & 3. P. & M. Die, 121. In an appeal of murder against three, if one of them plead Not guilty, ready to defend himself, by his body, and so wageth battle, upon which plea the Plaintiff demurreth in law, which demurrer is adjudged against him; in this Case the same appellee shall be arraigned at the King's suit: for that the felony is not yet tried, nor he acquit thereof. And if one of the other appellees do plead, Not guilty, and that the Plaintiff doth demur thereupon, and it is adjudged a good plea, and the same appellee is acquit against the appellant, yet he shall be arraigned at the King's suit of the same murder. S. Appeals. 96. The Appellants release to the appellee. 16 If the Defendant in an appeal do plead a Release enrolled, Fit. Cor. 12 and of record, made unto him by the appellant before the appeal commenced, he shall be presently delivered: But if it be made after the appeal commenced, the the Court will intend, that it is of purpose to defraud the King: and therefore in that case he shall be arraigned at the King's suit, though he be acquit against the appellant by his release. An Approver confesseth his appeal to be false. 17 If an approver, 21. H. 6. 34. when an inquest doth appear upon the issue joined between him and the appellee, and be ready to try the same issue, will confess his appeal to be false, yet notwithstanding the appellee shall be arraigned at the King's suit. But if the approver, when the appellee is in the field ready to deraigne battle, will confess his appeal to be false, the appellee shall go quit, and not be arraigned at the King's suit, and the approver shall be hanged: for it is as much as if the appellee had vanquished the approver in battle. The appeal abating before declaration. 18 If an appeal commenced by Writ do abate before declaration, so that the Court can not be informed of the year, day, and place, where, and when the felony was committed: In that Case the Court doth use to examine the Coroner, if he be present, if there be any indictment depending of the same felony, or not: and if he say no, then to send to the Sheriff of the County, where the felony was supposed to be committed, to know if he have any indictment, or not, and in the mean time to let the Defendant to mainprize: or otherwise the Court will set the Defendant at liberty. There was a time, when if a fellow had been taken with the manor, A fellow taken with the manor. and that the fellow and the manor had been brought into the Court, the judges would have arraigned the offendor upon the manor without appeal or indictment: Sed obsoletum. 19 In every arraignment which is to be at the King's suit upon an Appeal begun by the appellant, No arraignment at the King's suit upon a false declaration. the declaration in the same appeal is intended to be once good, and true: for if it were never good, and abated for that cause, the appellee shall not be arraigned at the king's suit, notwithstanding the abatement be after declaration. And therefore if an appeal be abated by mis-naming of the Defendant, 4. H. 6. 16 he shall not be arraigned at the king's suit, though the abatement be by the Plaintiffs own confession. And yet in that case it might be said, that the appeal abated by covin, for that the said exception was not tried, but confessed by the Plaintiff. And the same Law is, if the appeal shall be abated by mis-naming of the Plaintiff, or of the Town, or for lack of a material word. And so it is, if in an appeal, the Defendant do plead, Fi. Cor. 121 17. As. p. 26. 11. As. p. 27 18. Ed. 3. 35. Fitz. Cor. 3. 384. 387. 27. Ass. p. 25 that the Plaintiff is outlawed, or is attainted of treason, or felony, or otherwise is disabled to maintain an appeal: As, if a woman do bring an appeal of the death of her husband, and the Defendant doth plead, that she and her said husband were never accoupled in lawful marriage, or that she hath married another husband: Or, that the appeal was not commenced within the year and day after the offence committed: Or, that the appellant hath an elder brother living to whom the appeal is given, and not to the Plaintiff: And all those matters which shall be a Bar to the plaintiff, to bring the appeal, shall also Bar the king to take any advantage against the appellee, upon the same appeal: for in all these Cases it may appear that the appeal was commenced without cause, and grounded upon false matter. S. Br. 15. And yet it is otherwise, where the appeal was at the first grounded upon sufficient and true matter. But in all the Cases aforesaid, though the king cannot take an advantage of the appeal against the defendant, If not an Appeal, yet an Indictment at the King's suit. yet he shall compel him to answer to an indictment of the same felony, for that by these pleas the defendant is not discharged of the felony, though he be discharged of the appeal. And further, if the appellée be discharged both against the party and also against the King, yet the Court may bind him to his good Abearing, Good abearing. Fi. Cor. 387 if they shall think it meet. 13. Ed. 4. 8 3. Ed. 3. 10 20 If an Excommunication be pleaded against the plaintiff in appeal, The plaintiff in appeal excommunicate. notwithstanding the plea be thereby delayed, yet the Defendant shall not be arraigned at the king's suit, for the Plaintiff may be absolved, and then proceed in his appeal. And therefore the appeal shall be continued until a certain day, to the intent that the Plaintiff may in the mean time procure his absolution: and during that time the Defendant shall be let to mainprize. But if the appellant be outlawed, The plaintiff in appeal outlawed. though the outlawry be not for felony, but for trespass, 17. As. p. 26 Fit. outlawry 47. yet by that means the Defendant shallbe set at liberty, aswell against the king, as against the appellant. Notwithstanding in that case, there is no impossibility, but the Plaintiff might purchase his charter of pardon, or reverse the outlawry for that it is erroneous, and thereby be enabled to pursue his appeal. An Approver pardoned, the appellee shall be discharged. 21 If one be appealed by an approver, 47. E. 3. 5. 47. E. 3. 16. and the King doth pardon the approver, he that is appealed by the approver, shall be set at liberty, without being arraigned at the King's suit: for by the pardon the felony is extinct in him, and so he ceaseth to be an approver, for the approvement shall continue no longer than the approver is partaker of the felony, whereof the approvement is made. Vanquishing one approver. 22 If three men do become approvers severally against one man, 7. Ed. 3. 11. of one and the same felony, and he joineth battle with them all, and doth vanquish that approver which first joineth with him; by that means he shall be acquit against them all, and likewise against the King, and the other two approvers shall be hanged. But it is otherwise, if the approvement be of several felonies: for in that case, though the appellee doth join battle with them all, 25. Ed. 3. 42 and after vanquish that approver which first joineth with him, he shall be remaunded to prison, until he hath joined battle with the other two: for that there must be several trials, where there be several felonies, and several issues. Examining an offendor condemned. 23 If a man would become an approver, 21. Ed. 3. 18 and cannot be suffered by the Law for some disablement, or for the impediments before mentioned, yet before he shall be put to execution, the Court will send the Sheriff unto him, to hear who they be that he can accuse, and thereupon cause the Sheriff to indite them at his next Turn. Sanctuary, and Abjuration. Sanctuary in Greek called Asylum, What Sanctuary is. and by some in Latin termed Templum misericordiae is a place privileged by the King or chief governor of a country, for the safeguard of the life of such a person as doth offend the king, his Laws, crown, and dignity royal. Which privileged places were devised and instituted by the law of mercy upon devotion, and the great reverence and honour that Princes & chief Rulers had to such places, wherein they granted such privileges. As, first almighty God himself the chief Author of mercy gave in charge to his servant Moses (when the children of Israel were in their peregrination towards the land of Promise) that certain Cities or places of refuge or Sanctuary might be provided for those to fly unto, Deut. 19 By whom Sanctuaries were instituted. and to escape the hands of the revengers of blood, who should by mischance and not willingly slay others: And after, josua. 20 the same people being settled in the same Land, he caused josua to execute the same commandment by assigning six cities to that purpose. And, long time after that, Mulmutius Dunwallo one of the renowned kings of the Britons, who made many most worthy laws for the well governing of his subjects (which were called Mulmutius Laws) at the least 440. years before the nativity of our Saviour Christ ordained for Sanctuaries, places of privilege or defence of man's life, certain Temples, and the four great high ways which he before had caused to be made, or begun, at his own charges, viz, Fosse, Watling street, Erming street, and Ikeneld street, and in some cases, and for some purposes every plough: which Franchises or Liberties Belinus his son did after more fully effect and confirm. And some of the ancient Princes, Kings, or Governors in this Realm, granted places of defence, or sanctuary to such as should commit treason, & some others to such as should commit murder, robbery, burglary, or other offences whatsoever, which in that point was further than the privilege which God gave to his own Sanctuary, Exodus 21 that was ordained only for him which should kill another unwillingly: for God commanded, that if any did slay his neighbour upon malice prepenced, or by assault, he should be taken from his Altar, and put to death. 2 Abjuration is an oath that a man or woman doth take, What Abjuration is. when they have committed felony, and do fly to a Church, or churchyard for the safeguard of their lives, choosing rather to be perpetually banished out of the realm, than to stand to the Law, and to be tried of the felony: and this was one of saint Edward's Laws that was King of this Realm before the Conquest, and instituted by him, which is also founded upon the Law of Mercy, that the Kings of this Realm did extend, for the great reverence that they did bear to the Temple of God, and to places dedicated to him, which was always used since that time without alteration until the one and twenty year of King Henry the eight. St. 21. H 8. 2 And this abjuration is an attainder in itself of felony that is confessed; which attainder by confession is the most strong that may be, for the vehement presumption that it hath of truth: for it should be very absurd to say that he hath not committed such a felony when the party himself hath confessed it to the overthrow of himself and all his posterity. 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 privileged, which have been used or taken for Sanctuary (except parish churches and their churchyards, cathedral churches, hospitals, and church's collegiate, and all chapels dedicate, used as parish churches, and the Sanctuaries to every of them belonging: and except such places and territories as hereafter be appointed to be places of tuition and privilege, viz. Welles, Westminster, Northampton, Norwich, York, Derby, Launceston, and Westchester) shall be utterly extinguished, anulled, and void for ever. And by the Statute of Anno 22. H. 8. it was ordained, St. 22. H. 8. 14. That if any person fly or resort to any parish church, Cemitorie, or other like hallowed place for tuition of his life, by occasion of any murder, robbery, or other felony by the same person committed, and thereupon confess any murder, felony, Abjuration by the common Law out of the Realm. or other offence before the Coroner, wherefore the same person by the Laws of this Realm heretofore used, should abjure and pass out of the same, The same person thereupon shall abjure from all his liberty of this Realm, and from his liberal and free habitations, resorts and passages, to, and from the universal places of this Realm, which appertain to the liberty of the King's subjects undefamed, and shall forthwith be directed by the Coroner, Abjuration to a place within this Realm. taking and recording such abjuration, to any one Sanctuary within this Realm, which the same person will elect and choose, there to remain as a Sanctuary person abjured during his life, and to be sworn before the Coroner so to do, and to be marked with a hot iron upon the brawn of the thumb 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. jac. 25. St. 1. jac. 25 it was enacted, That so much of all Statutes as concerneth abjured persons, and Sanctuaries, or ordering or governing of persons abjured, or in Sanctuaries made before the five and thirtieth year of the late Queen Elizabeth's reign, shall stand repealed, and be void. And so all Sanctuaries being anulled and extinguished by the foresaid statute of 32. H. 8. 12. saving churches, and churchyards, which were Sanctuaries by the common Law, and saving Welles, Westminster, Northampton, etc. erected and made by the said Statute of 32. H. 8. 12. & 33. H. 8. 15. which are also sithence extinguished and anulled by the foresaid statute of 1. jac. 25. And therefore by no Laws or Statutes that we have 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 (saving churches and churchyards) which never were Sanctuaries above forty days at the uttermost, and that but in certain Cases, and yet now out of use. But whether by the strict course of the common Laws 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 abjured persons, or ordering, or governing of abjured persons, made before ann 35. El. be repealed and made void by the before rehearsed Statute of 1. jac. 25. viz. the statute of 21. H. 8. 2. 22. H. 8. 14. 27. H. 8. 19 32. H. 8. 3. 32. H. 8. 12. And by that means abjuration at the common law is restored to his former course, I will therefore write so much of abjuration, and abjured persons, as is warranted by the common laws of this Realm only, and not by any Statute, saving by the statute of Articuli cleri, made ann 9 Ed. 2. 10. which is rather a confirmation or exposition of the common law, than a new law, and except so much as is contained or mentioned in the statute of 35. Eliz. 1. & 2. or in any other law made since that time, which I do rather set down that the Reader may know what the law hath been, or is, then how it is used, and put in practice. 4 Abjuration doth not lie for him which offendeth in high treason, No abjuration for high treason. because the Coroner cannot attaint him upon his confession thereof, for that he is not his judge of that offence, neither can he be judge as Coroner, though he have a commission from the King to do it. And if the offendor being in a Church would of purpose confess a felony, to the intent to escape Treason, yet if the Coroner be informed that he is charged with treason, he ought not to suffer him to abjure, and that for the King's advantage: for it is better for the King to attaint him of Treason, than of felony, in respect of the Escheat, which in case of Treason doth wholly belong to the King, of whomsoever the offenders lands be holden. And the same law is in petit Treason; for the Coroner ought not to record his abjuration thereof, No abjuration for petit treason. any more than he may do of high Treason: Neither the Coroner ought to let him pass by abjuration of another felony, if he be informed that the offendor hath committed petit treason, and that for the grievousness of the offence, though the king shall receive no more benefit in petit treason, than in felony. And the statutes which were made in the time of k. H. 8. St. 21. H. 8. 2 22. H. 8. 14. 27 H. 8. 19 32. H. 8. 12 touching abjuration, be a special argument and proof thereof, which do only make mention of abjuration for murder and felony, but not for petit treason. Fi. Cor. 420 9 Ed. 4. 28 5 If a man do rob a Church and fly to another Church for the said offence, and there would abjure, No abjuration for the robber of a Church. he shall not be received thereunto, but shall violently be pulled forth of the Church, and thrust into prison. Quia frustra legis auxilium invocat, qui in lege delinquit. Fit. cor. 313 9 E. 4. 28. 6 If a man that is attainted of felony, and in carrying to the gallows to be put to death, do escape from the Sheriff, and fly to a Church, No abjuration for a man attainted. he cannot abjure, and though the Coroner would take his abjuration, and let him go at liberty, the Sheriff may take him again, and put him to execution, notwithstanding the said abjuration, for it is void, and the Coroner in that case shallbe grievously amerced for this escape, and so shall the town where he was let at liberty; and the reason is, for that a man cannot have two judgements for one offence. Fi. Cor. 335 And so it is, and for the same reason, if a man that is attainted of felony, and is carried to the gallows, and hanged, breaketh the halter, falleth down, and then riseth up, and doth fly to a Church, he cannot abjure, but must be taken again by the sheriff, & hanged until he be dead, according to his judgement. No abjuration for a man before abjured. 7 If a man do abjure the Realm before a Coroner for felony, 9 Ed. 4. 28 8. H. 4. 3. Fi. Cor. 410 and after doth return into the Realm without the King's pardon, and then fly to a Church, and would abjure again, he shall not be allowed so to do, but shall be taken forth by violence, and put to execution, for that he was before attainted of felony upon his own confession, and had his judgement of abjuration, and cannot be twice attainted, or have two judgements. Where an offendor may by violence be drawn out of a Church. 8 If a man do fly to a Church, claiming the privilege thereof for the safeguard of his life, in some cases he may be drawn forth of the same by violence: as, if he come into the Church to claim the benefit thereof for an unlawful cause at the beginning, viz. for treason, robbing of a Church, being formerly abjured, or such like, in those cases he may be drawn forth of the Church by violence, by the people of the same town: and in like sort, 3. H. 7. 12. Bro▪ Cor. 180. if he do fly to a Church, and saith he doth take it for the safeguard of his life, and will not declare that he hath committed felony, and that therefore he claimeth the privilege of the Church: in that case the officers of the town may by strength take him out of the Church. But if he do say that he doth take the Church for felony, that is sufficient, without declaring what felony, or the manner thereof: for he is not bound to show that but to the Coroner before whom he doth make his abjuration, The offenders confession before the Coroner. and then he must confess and show the year, day, and place, where, and when the felony was committed, for that judgement is to be given upon his confession, which must be grounded upon certainty. Tarrying in a Church above the time appointed. 9 If an offenders being in a Church were once lawful, although he tarry there above the time which the law hath appointed him, yet he ought not for that cause be drawn out of the Church by violence, Fi. Cor. 313 but meat and drink shall be withholden from him, and every person shall be forbidden to secure him: and he that doth relieve him shallbe punished at the King's suit: which punishment some do affirm shallbe, for a lay man death, Britton. Bracton. and for a Clerk banishment; for he that taketh a Church for felony, ought not to tarry there above one night, if a Coroner will come unto him, and be ready to take his abjuration, otherwise he may tarry there forty days. The manner of abjuration. 10 The manner of abjuration is, that he who taketh a Church, aught to declare that he doth take it for felony which he hath committed: and when the Coroner cometh, he must confess before him the felony certainly, viz. the year, day, and place, where, and when he committed the felony, and pray to abjure the Realm, and to have the tuition of the Church until he can provide for his journey: and this confession must be taken by the Coroner himself, and not by his deputy. And then he shall take an oath, which is his abjuration, The oath of abjuration. in this manner: viz. Hear you this Master Coroner, Bracton, Britton. That I A.B. am a thief of two beasts (or a killer of a man) and a fellow of the kings of England: and because I have committed many offences and thefts in this Realm, I do abjure the Kingdom of our Sovereign Lord King james: And I must make haste towards the port of S. which thou hast given me: And I must not go out of the high way; and if I do, than I yield to be taken as a thief and fellow of our Sovereign Lord the Kings, & at the port I will diligently seek passage, and will not tarry there but one flowing and ebbing if I may have passage: And if I cannot have passage in this time, I will go every day up to the knees into the sea, assaying to pass over. And if I cannot do it within forty days together, I will return to the Church as a thief and fellow of our sovereign Lord the King: So help me God, etc. And notwithstanding the words of the said oath, the offendor & not the Coroner ought to make the election of the port, whither he will go, & where he will make his passage, and he must make his abjuration at the door of the Churchyard. Fi. Cor. 407 Britton. 11 He that doth abjure the Realm must have upon him but his coat, The attire of an abjured person. his shirt, and his breeches, and his head shallbe uncovered, & he must carry a cross in his hand, which (as Polidore saith) is a token that his life is saved by religion: and whatsoever he hath beside, is forfeited to the King, and neither the Coroner nor any of his servants shall take any thing of the offenders for their fee. St. 9 E. 2. 10 12 By the Statute of Lincoln made ann 9 E. 2. The using of persons abjured. They they that abjure the Realm so long as they be in the high way shallbe in the King's peace, and be troubled of no man. And whilst they be in the Church, their keepers shall not tarry in the Churchyard, except necessity, or peril of escape do require it: and so long as they be in the Church, they shall not be compelled to departed, but may have those things which be necessary for their livelihood, and may go forth to discharge nature. 7. H. 7. 7. Fi. Cor. 14 But if an abjured person be molested in the high way, and drawn out of the way, and imprisoned, yet that will not excuse him when he is again at liberty, if he do not within convenient time after his liberty, return to the way leading him to the port or place whereunto upon his abiuraration he made choice to go. But if he do go out of the high way upon ignorance, or to ease nature, that shall not hurt him, so that he do return to the high way in convenient time, or do his good will to return. 13 After abjuration if the offendor do any thing contrary to his oath, After abjuration broken, death. viz. contrary to his abjuration, he shallbe put to execution, unless he be a Clerk, and in that case shallbe saved from death by his Clergy: & because the Prelates and Clergy did complain in Parliament, that though a Clerk ought not to be judged by a temporal judge, nor any thing may be done against him that concerneth life or member; nevertheless temporal judges caused Clerks flying unto the Church, and confessing their offences to abjure the Realm, and for that cause admitted their abiurations, although hereupon they cannot be their judges, and that so power was wrongfully given to Lay persons in the punishment of such Clerks. And if such should chance after to return into the Realm, the said Prelates and Clergy desired such remedy to be provided therein, that the immunity or privilege of the Church may be preserved unbroken. St. 9 E. 2. 15 Upon which request by a Stat. made ann. 9 E. 2. entitled Articuli cleri, it was enacted, That a Clerk flying to the Church for felony, to obtain the privilege of the Church, shall not be compelled to abjure the realm, but yielding himself to the law of the realm, shall enjoy the privilege of the Church, according to the laudable custom of the Realm heretofore used. Which said Statute being but a rehearsal, restoring, and confirmation of the common law, is thought not to be repealed by the words of the foresaid stat. of 1. jac. ●●. 1. jac. 25. And so it appeareth by this stat. that if he which doth fly to a Church, will say that he is a Clerk, A Clerk need not abjure. he shall not be compelled to abjure, and if he do abjure of his own good will, and thereby doth lose his lands, yet to save him from execution he shall have his Clergy. S. St. 28. H. 8. 1. Clergy 5. Where no felony no abjuration for felony. 14 A married wife being desirous to be delivered from her husband, Fi. Cor. 425 did fly to a Church, and acknowledged a felony, where she never had committed any felony, and desired to abjure: and her husband understanding of it came to her, and then she fled out of the Church and escaped, and town or person were amerced for this escape: for there could no fellow escape where no felony was committed. Neither can there be any abjuration where no felony is committed. And therefore an offendor cannot abjure for petit larcenie. Br. Cor. 182 The abjured pleadeth that he is not the same person. 15 He that doth abjure, and is taken again, and arraigned, Fi. Cor. 124 may plead that he is not the same person which did abjure, and then that shallbe tried by the Coroner who took his abjuration: Or he may plead the Kings pardon The King's pardon. granted to him of the felony and abjuration: 9 E. 4. 28. for if the pardon make no mention of the abjuration, it is not good. S. Pardon 7. A Recusant using conventicles shall abjure the realm 16 By the statute of ann 35. El. it was ordained, St. 35. El. 1 that if any person or persons above the age of sixteen years, which shall offend against the said Act (in persuading others to impugn the queens Ecclesiastical laws) shall not within three months after they shall be convicted for their said offence, conform themselves to the obedience of the Laws and Statutes of this Realm, in coming to Church to hear divine Service, and in making such public confession and submission, as in the said Act is expressed, being thereunto required by the Bishop of the Diocese, or any justice of the Peace in the same county, where the said person shall happen to be, or by the minister or Curate of the Parish: In every such case, every such offendor being thereunto warned or required by any such justice of Peace of the same County where such offenders shall happen to be, shall upon his or their corporal Oath, before the justices of the Peace in the open Quarter Sessions of the same County where such offenders shall then be, or at the Assizes and jail Delivery of the same County, before the justices of the same Assizes and jail Delivery, abjure the Realm of England, and all other the queens Dominions for ever (unless her Majesty shall licence the parties to return:) and thereupon shall departed out of the Realm, at such Haven or Port, and within such time as shall in that behalf be assigned and appointed by the said justices, before whom such abjuration shallbe made, unless the same offendor be letted or stayed by such lawful and reasonable means or causes, as by the common laws of this Realm are permitted and allowed in cases of abjuration for felony. And in such cases of let or stay, then within such reasonable and convenient time after, as the common law requireh in case of abjuration for felony, as is aforesaid. And the justices of peace before whom any such abjuration shall happen to be made, as is aforesaid, shall cause the same presently to be entered of Record before them, and shall certify the same to the justices of Assizes and jail delivery of the said County at the next Assizes or jail delivery to be holden in the same county. And if any such offendor which by the tenor and intent of this act is to be abjured as is aforesaid, shall refuse to make such abjuration as is aforesaid, or after such abjuration made, shall not go to such haven, and within such time as is before appointed, & from thence depart out of this Realm according to this present act, or after such his departure shall return or come again into any the Qu. Realms or Dominions without her special licence in that behalf first had and obtained: Then in every such case the person so offending shallbe abiudged a fellow, and suffer as in case of felony, without benefit of Clergy. If any person or persons that shall at any time offend against this act, shall before he or they be so warned or required to make abjuration, according to the tenor of this act, repair to some parish Church on some sunday, or other festival day, and then and there hear divine service, and at Service time before the Sermon, or reading of the gospel, make public and open submission and declaration of his and their conformity to her majesties laws and statutes, as in this act is hereafter declared & appointed: That then the same offendor shall thereupon be clearly discharged of and from all the penalties and punishments inflicted or imposed by this act for any of the offences aforesaid. Provided that no Popish Recusant or seem covert shallbe compelled to abjure by virtue of this act: Provided also that every person that shall abjure by force of this act, or refuse to abjure, being thereunto required, as is aforesaid, shall forfeit and lose to her Majesty all his goods and cattles, and all his lands, tenements, and hereditaments, during his life only, and no longer. But his wife shall not lose her dower, neither shall his blood be corrupt. S. Felony by stat. 9 17 By a statute made ann 35. El. 2. St 35. El. 2. (entitled an act for the restraining of Popish Recusants to some certain place of abode) it is ordained, Popish Recusants shall abjure the Realm. That Recusants not conforming themselves to the obedience of the laws of this realm, in coming to the Church to hear divine service, which shall not upon the request of two justices of peace, or Coroner of the same county, abjure the realm, and departed for the same, and not return without the Queen's licence, shallbe adjudged felons, and suffer and lose as in case of felony, without benefit of Clergy. S. Fel. by St. 10. St. 3. E. 1. 10 18 By the stat. of West. 1. made ann 3. E. 1. it is enacted, Abjuration of a Trespasser. That he which committeth trespass in parks or ponds shall abjure, if he cannot find surety no more to do the like offence. But that abjuration is not for felony, neither shall he forfeit his lands or goods. Pleading not guilty. Having made mention of one of the pleas which a prisoner brought to the bar to be arraigned of Treason or Felony doth plead, viz. of the Confession of the offence, and showed how many sorts of Confessions of felony the law doth take notice of, & by what means she doth proceed against the parties confessing: I am now to treat of a second, or one other plea, that the prisoner upon his arraignment doth plead in his own defence, which is the plea of Not guilty. For when a prisoner by an appeal, or an Indictment, is charged with treason, or felony, he may estrange himself from the offence, if he will, and join the same issue, which the defendant oft times doth in an action of trespass, & some other personal actions, viz. he may plead and take for his issue, Not guilty. This plea of not guilty is the most common and usual plea, Pleading not guilty the most common plea. that he which is arraigned of treason or felony, hath to plead upon an indictment, or an appeal: and it is the plea whereunto every person that is arraigned shall be enforced, unless it be in special cases, viz. where he hath matter of justification, or matter in Law to plead. And this plea of Not guilty doth tend to the fact, that is to the felony, and therefore it receiveth great favour in Law: 7. Ed. 4. 15. 4. H. 6. 15 4. H. 7. 5. 10. H. 4. 4. 9 H. 4. 2. for the Law doth allow this plea to him who is arraigned after he hath pleaded in abatement, or bar of the appeal, or indictment, so that his bar do not comprehend such matter as doth confess the felony (as a Release of the appellant, or the King's pardon.) And that plea he shall have also, though one of his pleas were matter in law: for though those pleas do require divers trials, 29. Ed. 3. 91. 22. E. 4. 39 27. As. p. 3 14. Ed. 4. 7 yet in favour of life he shall have both those pleas, as well as he shall have when he doth plead matter triable by the Bishop, or by Record, viz. and moreover not guilty. Which pleas he shall have notwithstanding he do not conclude, moreover not guilty, that is to say, Pleading not guilty after other pleas. he shall come time enough to plead not guilty after the matter triable by the Bishop, or by Record, is found against him. And the manner of pleading in all those cases is to plead his plea, and to pray allowance thereof, and over to the felony not guilty. Upon the plea of not guilty no council allowed. 2 Upon this plea of only not guilty, the party indicted shall not have council learned in the law to plead for him, or to say any thing in his behalf in the same plea (unless it be in an appeal, which is the suit of the party) for when the offendor is put to answer to an indictment of treason or felony, he must answer it in proper person, and not by attorney, or council learned: For this plea of Not guilty doth tend to the fact, that which the party himself doth best know, and therefore he can best make answer unto it. And if his council learned should plead his plea for him, and defend him, it may be that they would be so covert in their speeches, and so shadow the matter with words, and so attenuate the proofs and evidence, that it would be hard, or long to have the truth appear. Also if the party himself defend it, peradventure his conscience will prick him to utter the truth, or his countenance, or gesture will show some tokens thereof, 9 Ed. 4. 2. or by his simple speeches somewhat may be drawn from him to bolt out the verity of the cause, which would not be won of men learned in the law, who endeavour to speak providently, and artificially, which be the causes that the offendor shall answer in his own person, and not by council learned. And yet if the plea of the party indicted be such that it doth exceed his learning and knowledge to answer, 1. H. 7. 15 12. El. Dyer 296. 7. H. 4. 36. and plead unto, Where council shallbe allowed. Informing the Court of a default. than he shall have learned council assigned unto him, though it be against the King. And one that is in the Court at the time of the indictment or arraignment of a prisoner, may as Amicus Curiae, inform the Court that there is a defect in the indictment, to the benefit of the prisoner. ❧ Trial by Battle. THere is an ancient trial of the plea of Not guilty by the common law, much used in former ages, which is trial by combat, viz. by Battle, which trial the defendant in an Appeal of felony may choose, and combat with the Appellant, for the trial if he be guilty or not of the felony whereof the appellant hath commenced his appeal against him. And if the appellee hath so good success in that battle, that he doth therein vanquish the appellant, he shall bar him of his appeal for ever. And though this trial by battle is not so much in use as it was in the reigns of king Edward the 3. king Richard the 2. and king Henry the 4. yet is it at this day lawful, Trial by battle, or by the country. and not so much disused, but it may be put in practice in an appeal, if the defendant will, and that there be no lawful counter-plea thereof: Or else the defendant in an appeal may at his choice plead not guilty, and refer himself to be tried by the country. This trial in an appeal by battle shall be between the appellant and the appellée themselves, in their own persons, and not by Champions (as it is in a writ of right.) And this trial by battle is an ancient law of this realm, 37. H. 6. 3 & it is also put in practice and allowed by the civil law; which it is thought the Romans learned and embraced, ever since that renowned combat that was fought in the time of Tullus Hostilius third king of the Romans, and of Metius Suffetius dictator of the Alban, Tit. Liu. l. 1 between the three brethren Horatij Romans, and the three brethren Curiatij Alban, by the consent and in the presence of both the Captains and Armies, for the perpetual government of both the kingdoms: wherein M. Horatius vanquished, and slew in the field the three Curiatij, who presently before had killed his other two brethren, and by that means obtained to the Romans the perpetual government of the city and country of the Alban, and delivered his own nation from continual servitude. The form of trial by battle. 2 The order and form of trial by Battle is this: when the defendant in an appeal hath pleaded not guilty, ready to defend the same by his body, he must cast his gauntlet into the court, and if the Pl will rejoin to the Battle, he must take up the Gauntlet: Fit. Cor. 385 But if the Plaintiff will counterplead the Battle, than he must let the Gauntlet lie: and then the Defendant may demur in law thereupon, if he do let his gauntlet lie. If it be in an appeal of death, and that the appellant and the appellee do join in wager of Battle, the Appellant shall rehearse his appeal word by word, as he did at the first, and the appellee shall likewise make his defence, as he did at the first: and then the defendant shall wage the battle in this manner, 17. E. 3. 2. 17. Ass. p. 1 9 H. 4. 4 viz. Thomas the appellee shall with his left hand take I. the appellant by the right hand, and lay his own right hand upon a book, and say thus: Hear you this, you man, which do call yourself john by your name of Baptism, that I man, which do call myself Thomas by name of Baptism, such a day, and such an year, did not kill William your father by name, as you do surmise, neither am I guilty of this felony, so help me God, and shall kiss the book: and this I will defend against you by my body, as this Court will award. And after I. the Appellant shall with his left hand take T. the appellee by the right hand, and lay his own right hand upon the Book, and say in this manner: Hear you this, you man, which by name of Baptism do call yourself Thomas, that you furiously such a day, and in such a year, did kill William by name, my Father, so help me God, and shall kiss the Book: and this I will justify against you by my body, as this Court will award. And the Court shall appoint them a day to make their combat, and the appellee shall put in pledges to the Court, to perform the battle, and to defend himself: and the plaintiff shall put in pledges to deraigne the battle at the day assigned: And the Appellant shall go at liberty, and the appellee shall be kept in prison at ease, and have sufficient meat and drink. And the Marshal shall apparel the appellant and the appellee both alike at their own costs, the night before the combat shall be fought, to the end that they may be in the field the next morning, ready to perform the combat, by the sun rising. And the appellees head shall be polled, but not the appellants: and the Marshal shall bring them attired into the field ready to perform the Battle. Which combat shall be tried before the justices, 19 H. 6. 15 Br. Battle 16 Bracton de cor. ca 21 who shall cause Proclamation to be made when they be set, and the Appellant and the appellee be within the lists, ready to achieve the combat, That none, but the two combaters shall be so hardy to stir, or make any noise, whatsoever he shall see, or hear, whereby the battle may be disturbed: And whosoever shall do any thing contrary to the said Proclamation, Britton. shall be imprisoned a year and a day. And they shall fight with weapons of small length, being bare headed, and having their hands and feet bare, with two staves of one length, horned at both ends. And either of them shall have a Scutchian four cornered, without any iron, for that one shall not hurt the other with the iron. Bracton de coron. c. 21. And if the appellee can defend himself until Stars may be seen in the firmament, than he shall go quit from the appellant. And also when the appellant and the appellée be in the field ready to join battle, or in the Battle, it is a sufficient vanquishment if the appellant will confess his appeal to be false: 21. H. 6. 34. Fi. Cor. 98 for by this acknowledgement, he shallbe adjudged to be overcome in the field, and barred of his appeal for ever. And on the other side, if the appellee do confess himself in the field to be vanquished, Bracton de coron. c. 21. he shallbe presently hanged: As in an appeal the defendant pleaded not guilty, and made his choice to try it by Battle, and as they were in the combat, the appellant cast the appellee to the ground, & did grievously beat him, 19 H. 6. 35. and the justices sent for the appellee, and when he was brought unto them, they demanded of him, if he would any more of the battle, or not: who answered, that he would not: and said further, that by the oath which he had taken, he was not guilty of the felony whereof he was appealed: to whom the justices said, That if he would any more of the battle, 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 battle, and therefore he was presently hanged. The reason why the def. may be tried by battle in appeal. 3 The reason why in an appeal the Defendant shall be admitted to try his cause by Battle is, for that no evident or probable matter doth appear against him to prove him guilty of the felony whereof he is appealed, but only the bare accusation of the Appellant, which is no witness of credit in his own cause. And therefore seeing the appellant doth demand judgement of death against the appellee by an appeal, and hath no other probable evidence to attaint him, but his own accusation, it is more reason, that the appellant shall adventure his life with the appellee for the trial thereof, if the defendant do require it, than to put the trial thereof upon the country (which for default of evidence may be ignorant of the truth thereof, and so give a false verdict) and by that means to leave it to God (to whom the truth of all things be known) to give the verdict in this cause, by attributing the victory or vanquishment to which party it shall please him. Counterpleas to the battle. 4 If the appellant have any vehement presumption, or sufficient testimony, to prove that his appeal is true, it will be a good counter-plea, and sufficiently serve him to put the appellee from his trial by Battle: As, if the Defendant were indicted of this Felony before the appeal commenced, 22. E. 4. 19 20. E. 4. 6 14. E. 4. 7. 4. Ass. p. 1 Bracton de coron c. 18. Britton. or was taken with the manor, or was taken with a bloody knife, or other weapon, over the body of him that was slain, or near unto him, whereby there was vehement suspicion 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 slain, and received no blows or wounds in his defence, or that he made no Hue and Cry after the thieves or murderers to apprehend them, or that he will not confess which of those that were in the house with him, did kill the man that was slain, or committed the felony that was done, or that he received the man that was slain into his house, which was seen to go in alive, and after was found dead there, and no mean proved how he came by his death. Taken with the manor. 5 If the Defendant be taken with the manor (as in an appeal of death, with a bloody knife, or other weapon) he shallbe barred from waging of battle. And so it shall be if he be taken with the manor in an appeal of Robbery, 7. H. 4. 44 Fit. cor. 230 4. Ed. 3. 9 which manor the plaintiff must bring into the Court at the time when the appellee doth offer to join in battle, or otherwise he must plead that the appellee was taken with the manor, which manor he would have brought into the Court, but that he was not able to bring it: or else he may say that the manor is in the possession of another, and pray the Court to write for it. To which manor when it cometh into the Court, the defendant shall have no traverse, or other exception, if the thing brought into the Court for the manor, do not vary from those goods, or things which be contained in the Appeal. 22. Ed. 4. 19 And in appeal of robbery, if the appellee be apprehended upon fresh suit by Hue and Cry, and some of the money rob be taken in his custody, this is a sufficient taking with the manor to put him from waging of Battle, Fi. Cor. 375 though the money cannot be known from other money. And the reasons why in an appeal of robbery, the defendant being taken with the manor, shall not wage battle against the appellant be, for that by the Appeal the plaintiff doth endeavour to attaint the appellee of felony, and also to have his goods again. And it may be, that if it should be tried by Battle, the appellee might vanquish the Appellant in combat (though the appellee be guilty of the felony) and by that means also retain his goods stolen, without cause. Taken with the manor. And the manor was accounted so pregnant an evidence in former ages, that the justices would as readily arraign a prisoner upon the manor taken in his possession, as upon an indictment. 6 It is also a good counter-plea to the battle, for the Appellant to say, Breaking of prison. that the defendant when he was taken or arrested for that felony whereof the appeal is sued, Fi. Cor. 251 281 1. As. p. 6. and therefore imprisoned, did break the prison, and escaped, or did what he could to escape: for it is a very great presumption against him, that he is guilty of the felony whereof he is appealed, in that he did break the prison and fly, or would have fled for the felony: and that he did not rely upon, and trust to his innocency, and be justified and tried by the law. And the appellee may reply to that counter-plea, and traverse the arrest for felony, or the breaking of the prison, if he will, or he may plead the King's pardon for the breaking of the prison: 1. As. p. 3 Fi. Cor. 154 157. which traverse or pardon being tried, or allowed, he shallbe restored to his trial by battle. 7 As there be impediments of the defendants part, Let's of trial by battle on the plaintiffs part. why he may not wage battle against the appellant, so be there lets of the appellants part, that the appellee cannot wage battle against him: for as vehement presumptions of the defendants guiltiness be causes to put him from waging of battle, so be vehement presumptions of the appellants infirmities, or weakness, sufficient bars to exclude the appellee from trial by battle with him. As, if the appellant be within the age of fourteen years, or above the age of threescore and ten years, Fi. Cor. 230 268. 22. E. 4. 20 or within orders, or a woman, or be maihemed; whether he were maihemed by the appellee at the time that the said appellee rob him, or at any other time; or (as some do affirm) whether he was maihemed by the appellee, or by any other. And some do hold it for Law, that if the appellant be above the age of threescore years, the appellee shall no more wage battle against him, than against an infant within age, or a woman. But if the appellee will wage battle being of that age, he may, for though he may discharge himself of battle, in respect of his said age, if he will, Bracton. yet in that the Law hath given him his choice, whether he will be tried by battle, or by the Country, he may refuse the benefit of his age, and wage battle. Privilege of the Appellants person. 8 In some cases the privilege of the person of the appellant shall put the appellee from the trial by battle with him: as the person of the King, when the defendant is arraigned at his suit in an appeal; for in an arraignment upon an Indictment at his suit, The King. the party indicted shall not wage battle, for the vehement presumption that the Indictment is true, being found by the oaths of twelve lawful men of the Country. Plo. come. 335. And as the person of the King shall be exempt from battle, so shall all other, to whom the King shall please to grant such an exemption: As in former ages such a grant hath been made by some King of this Realm, to the Citizens of London, that battle shall not be waged against any of them in any appeal whatsoever, brought by any of them. Fi. Cor. 125 157. And if a citizen of London Citizens of London. will bring an appeal against another, and the defendant will offer to wage battle with him, though the Appellant would refuse the benefit of this privilege, and join battle with him, yet the battle shall not be performed; for the Mayor and Commonalty of London must sue a writ out of the Chancery, directed to the judges, where that trial should be made, rehearsing their liberty, and pray allowance thereof, to stay the trial by battle, And though in the foresaid case (and other cases, Fi. Cor. 125 where counterpleas to battle be pleaded) the plaintiff doth count, that if the defendant will deny it, he is ready to prove it by his body, yet the defendant in his plea cannot take advantage thereof, for those be but words of form, and not of substance: and notwithstanding this conclusion, he may make his trial by the country, or otherwise as the law will. 9 By the Statute of ann 6. R. 2. St. 6. R. 2. 6. it was enacted, That if any Noble man's daughters, Ladies, or other women be ravished, and after the same rape committed, do consent to the Ravishers, the husbands of such women (if they have husbands) or if they have no husbands living, than their fathers, or other their next kinsmen in blood, shall have the suit to prosecute, and may pursue against the same offenders and ravishers in this behalf, and to convict them of felony, No wager of battle in appeal of Rape. though the same woman after the rape do consent to the ravishers. And in this case the defendant shall not wage battle, but the truth of the matter shall be tried by the country. S. Felonies by Stat. 2. One fight with several men. 10 If one man do appeal divers men of one felony, 47. E 3 5. 19 H. 6. 35 and they all join in battle with the Appellant, he must fight with them all, one after another, if it do not so chance that he is slain by one of them, before he can perform the battle with the residue: which if it happen, all the residue of the defendants shall be discharged of the appeal. But if when the Appellant doth come into the field to fight with one of the appellees, Fi. Cor. 98 he will then confess his appeal to be false towards him, yet that shall not discharge the residue of the appeal, but they shall proceed in their trial with the appellant. And likewise if one man be appealed by three men of several felonies, and he do plead not guilty, ready to try it by his body, in this case he must fight with them all, one after another, and though he do vanquish or kill one of them, this will not discharge him against the other. Bracton de cor. ca 19 But if three men do appeal one man but of one felony, then if the appellee do vanquish one of them, he shallbe discharged against the other two. And in that case if the said three Appellants be Approvers, 7. Ed. 3. 12 than the other two shallbe hanged. 11 And all that is before written touching Trial by Battle, may be applied, as well to the appeal of an approver, An Appeal by approver. who confesseth himself to be a fellow, as to an appeal commenced by a true man. Fi. Droit. 57 12 If a man be appealed of felony, The Appellee wageth battle, and then becometh blind. and wageth battle with the appellant, and after he doth become blind by infirmity, and not by his own procurement, he shall be discharged of the battle: and so it is in a writ of Right:) for in this case the appellee hath pleaded such a plea as the Law doth allow him: and his disability to perform it cometh by the act of God. But if after the Defendant hath waged battle with the appellant, the same appellant shall become blind, by what means soever, the appellee shall be arraigned at the King's suit. S. Appeals. 96. Trial by Peers. WHen the Defendant hath pleaded Not guilty to an appeal, or an indictment, than the matter cometh to be tried between the King and him, or the appellant and him, whether he be guilty, Trial of the plea Not guilty. or not. If it be in an appeal, it may be tried by Verdict, or by Battle, as the appellee will, saving in certain Cases: But upon an Indictment there is no trial by battle, nor otherwise, saving only by verdict. In an Indictment of treason or felony against one of the Peers of the Realm, the trial is by his Peers, which manner of trial in an appeal is not allowable. The arraignment of a Peer of the Realm. 2 When a Peer of the Realm, 1. H. 4. 1. 13. H. 8. 13. 10, Ed. 4. 6. and Lord of the parliament is to be arraigned upon any treason, or felony whereof he is indicted, and whereunto he hath pleaded Not guilty, the King by his Letters patents shall assign some great and sage Lord of the parliament to be high Steward of England for the day of his arraignment: who before the same day shall make a precept to his Sergeant at Arms, that is appointed to serve him during the time of his Commission, to warn to appear before him eighteen or twenty Lords of the parliament upon the same day. And then at the day appointed, when the high Steward shall be set under the cloth of Estate, upon the arraignment of the prisoner, and hath caused his Commission to be read, the same Sergeant shall return his precept, and thereupon the Lords shall be called, and when they have appeared, and be set in their places, the Constable of the Tower shall be called to bring his prisoner into the Court, who then shall bring the prisoner to the Bar. And then the high Steward shall declare unto the prisoner, the cause why the King hath assembled thither those Lords and him, and persuade him to answer without fear. And then he shall cause the Clerk of the Crown to read his Indictment unto him, and to ask him if he be guilty, or not; whereunto when he hath answered Not guilty, the Clerk of the Crown shall ask him how he will be tried, and then he will say, by God & by his Peers. And then the K. sergeant and Attorney will give Evidence against him, whereunto when the prisoner hath made answer, the Constable shall be commanded to retire the prisoner from the Bar to some other place, while the Lords do secretly confer together in the Court: and then the Lords shall rise out of their places, and consult among themselves, and what they affirm, shall be done upon their honours, without any oath to be ministered unto them. And when they all, or the greatest part of them be agreed, they shall return to their places, and sit down. And then the high Steward shall ask of the youngest Lord by himself, if he that is arraigned be guilty, or not, of the offence whereof he is arraigned; and then of the youngest next him, and so of the residue, one by one, until he hath asked them all: and every Lord shall answer by himself. And then the high Steward shall send for the prisoner again, who shall be led to the Bar; to whom the high Steward shall rehearse the verdict of the Peers, and give judgement accordingly. But if an Earl the son and heir apparent of a Duke, or a Lord the son and heir apparent of a Marquis, or Earl, 38. H. 8. Br. Treason 2 be indicted of high treason, he shall be tried by Knights and Gentlemen, and not by Peers: for he is not an Earl by Creation, but by Nativity. But if he be of dignity by creation, and a Lord of the Parliament, he shall be tried by his Peers. 3 The foresaid manner of Trial seemeth to be appointed by the Statute of Magna Charta, St. 9 H. 3. 29. which hath ordained, That no free man shall be taken, or imprisoned or disseised of his freehold, liberties, or free customs, nor shall be outlawed, banished, or by any means brought to destruction: Neither we will pass or sit in judgement upon him, but by the lawful judgement of his Peers, or by the law of the Realm: We will not sell, deny, or defer justice or right to any. It appeareth by this statute of Magna Charta, By whom Peers appealed shall be tried. that a Peer of the Realm shall be tried by his Peers only, in case where he is indicted at the King's suit of treason, or felony, for the words of the statute be (we will not pass or sit in judgement upon him but by his Peers: 10. Ed. 4. 6 ) But if an appeal of murder or other felony be sued by any common person against a Peer of the Realm, he shall be tried by common persons, and not by his Peers. And because there was no mention made in the said statute of Magna Charta, how women, Ladies of great estate, because of their husband's Peers of the Realm, married, or sole, viz. Duchess', Countesses, or Baronesses, should be put to answer, nor before what judges they should be judged upon indictments of treasons or felonies by them committed: and for that the said statute of Magna Charta doth only make mention of a man: Therefore by a statute made Anno 20. H. 6. 9 St. 20. H. 6. 9 it was enacted, By whom ladies shall be tried. That such Ladies of great estate, viz. Duchess', Countesses, and Baronesses, which shall be indicted of any treason, or felony by them committed, whether they be married, or sole, shall be brought to their answer, and put to answer, and judged before such judges and Peers of the realm, as Peers of the realm should be, if they were indicted or impeached of such treasons or felonies committed. 4 None of the foresaid statutes have been put in practice to extend to Bishops, Bishop's though they enjoy the name of Lords of the parliament, for they have that name of Bishops in respect of their office, or function, and not in respect of their nobility; neither have they places in parliament in respect of their nobility, but in regard of their possessions, being ancient Baronies annexed to their dignities. If a Peer of the Realm be indicted of treason, or felony, he may be thereupon arraigned in parliament, Arraignment in parliament. if it shall please the King: 10. E. 4. 6 and then the Lords spiritual shall make one Procurator for them, for that by the Cannon law they cannot condemn any man to death. A Bishop was arraigned in the King's Bench, (and not by any Lords of parliament) for that he came to the parliament by summons, and departed without licence: 3. E. 3. 19 and because this was an offence, as well to the King, as to the Peers; and the King may comemnce a suit where he please for a trespass done to him, therefore this was accepted a lawful indictment, though the complaint was made in an inferior Court, for an offence done in an higher. Trial of treason committed in Ireland. 5 If an Earl, 19 & 20. El. Dy. fo. 360 or a Lord of Ireland doth commit treason in Ireland by open rebellion, he cannot be arraigned and put to his trial therefore in England: for he can neither be tried by his Peers, nor by any jury of twelve men in England, because he is not a subject of England, but of Ireland; and therefore his trial shall be in Ireland. And the custom there is to attaint a Peer by parliament, and not by his Peers. Misprision. 6 This order of trial by the Peers is likewise to be observed, where one of the Peers of this realm is indicted but of misprision of treason or felony: in which trial the same form shall be kept, as it shall be, where any Peer is indicted of treason or felony, and arraigned thereupon. And the number of Peers which shall be to try a Peer indicted of treason, The number of Peers at the Trial. felony, or misprision, shall be twelve at the least, and more if it shall please the King. Trial by Peers in all cases of treason and felony 7 In every case where any offence or fact is of new made treason by any Statute, the Lords of the Parliament, and Peers of the Realm offending therein, shall have their trial by their Peers, though the Statute doth not provide for it by special words: as other inferior persons offending in the like crimes, shall have their trial by the verdict of twelve men, their peers, viz. their equals; so that the words which be commonly put into new Statutes, that Peers of the Realm offending therein, shallbe tried by their Peers, be not of necessity inserted. But because the course of the common law is in some sort altered by the statute of ann 33. H. 8. 23. St. 33. H. 8 23. authorizing the King to grant a commission unto such persons, and into such shires as he will, for the trial of any murder committed in any other county or place of the Realm whatsoever: And also by the Statute of 35. H. 8. 2. St. 35. H. 8. 2 giving the King like power to direct a commission into any county of this Realm, and to any persons that he will, for the trial of treasons, and misprisions of treasons, committed out of the Realm: yet for that the trial in both those cases might be made by such persons, as the common law hath appointed, viz. of peers by their peers, it is so provided and ordained by the special words of both those statutes. ❧ Trial by the Country. Trial by the Country, Trial by the Country. is a trial by twelve common persons of that vicenage or neighborhoode, where the treason or felony was committed: which kind of trial seemeth also to be warranted and approved (though not at the first begun) by the before rehearsed Statute of Magna Charta, St. 9 H. 3. 29 which saith: Neither shall any pass or sit in judgement upon him, but by the lawful judgement of his Peers, or by the Law of the realm. And thereupon it is accordingly used, that Knights, esquires, and Gentlemen of great estate being indicted of treason or felony, be tried by their peers, viz. by their equals in degree, being also Knights, esquires, Gentlemen, or Merchants of good estate: 1. M. Dy. 99 and inferior persons be likewise tried by their peers or equals, viz. by men of their own degree, or (most commonly) by men of better or greater estate or degree. 2 If he that is charged to be an offender in petit treason, murder, or felony, do plead to an Indictment found against him matter triable by an other County, than the County which did indict him, although by the common law he ought to have been tried in that foreign county; yet now by the Statute of Anno 22. H. 8. St. 22. H. 8. 14. 32. H. 8. 3 he shall be tried by the county which did indict him; the words of which Statute be these, viz. For more speedy trials of murders and felonies, Be it enacted, etc. That all manner of foreign pleas, Trial of foreign pleas. triable by the Country, hereafter to be pleaded by any person or persons arraigned upon any Indictment for any petit treason, murder, or felony, shallbe forthwith tried before the same justices, before whom such persons shall be arraigned, and by the same jurors of the same county, that shall try the petit treason, murder, or felony, whereof he shall so be arraigned, without any further respite or delay in whatsoever county, or counties, place or places of this Realm, the matter of the same pleas be supposed or alleged. This statute maketh no mention of high treason, & therefore foreign pleas in high treason remain to be tried in those foreign counties, as they were at the common law; And so be they in an appeal: Appeal. for this statute extendeth to Indictments only. But if A. do strike B. upon the Sea, and there give him a mortal wound, whereof B. dieth in the County of L. in this case A. Coke 2.93 shall be discharged of the death of B. for they of the County of L. cannot inquire of the death without inquiry of the wound, A man stricken upon the Sea dieth upon the Land. and of the wound they cannot inquire, because it was given upon the Sea, and not in any County or place in this Realm. And they of the Admiralles jurisdiction can not inquire as of a felony of the wound, without enquiring of the death, and of the death they can not inquire, because it was within the body of a County, where by the statute of 13. R. 2. & 15. R. 2. St. 13. R. 2. 5 St. 15. R. 2. 3. they are forbidden to meddle. 3 The process which shallbe awarded against the jury The Process against the jury. to try an issue in an appeal, is commonly a Venire facias, Habeas corpora, and Distringas, as it is used in other actions, saving in the King's Bench, 27. H. 6. 10 for by the custom of that Court, the first process against the jury, is an Habeas corpora, and after a Distress, without suing a Venire facias. And some say, that in the K. Bench they use to have no Habeas corpora at the first day, but a Venire facias, and then a Distress, leaving out the Habeas corpora. The process which is to be awarded against the jury, Process in an Appeal, not in an In- is for the most part intended in an appeal: for in an Indictment though they may grant process against the jury, yet it is not used by the justices of jail delivery, Fit. inquest 55 because they do take the panel, which is returned by the Sheriff, without making any precept unto him, for that they give a general commandment to the Sheriff before their coming, to cause the Country to appear before them. But so do not justices of Oyer and Terminer. Nisi prius for the defendant in appeal. 4 Although by the common Law a Nisi prius is grantable for the king, but not grantable against the king, where he is party to the suit, or where the matter in question doth touch the kings right, or where he is party thereunto (but by aid prayer,) unless his Attorney will assent thereunto: yet in an appeal of felony, when the appellant and appellee be at issue, the Defendant may have a Nisi prius to pursue the same issue, 21. H. 7. 34 if there be any default in the Plaintiff, that he doth not pursue it with effect, though the K. be in a sort party to that suit: for otherwise the appellee should continually remain in prison to his utter undoing, and never have remedy. Neither the Defendant in an appeal shall not have a Venire facias with a proviso, 14. H. 7. 7. 15 H. 7. 9 21. H. 6. 36 until he hath assigned some default in the Plaintiff in the pursuit of it. And yet the Plaintiff may at his pleasure stay the Defendant in proceeding further with his process, in praying a Tales upon the Defendants process. Remaunding of prisoners out of the K. Bench to be tried in the Country 5 Because divers felons and murderers upon untrue surmises did oftentimes remove as well their bodies, as their Indictments, by writ, and otherwise, before the King in his Bench, and could not by the order of the Law be remaunded, and sent down to the justices of jail delivery, or of the peace, nor other justices or Commissioners to proceed upon them, after the due course of the common law (for that a Record which is once removed into an higher Court, can not by the common Law be sent back to a more base and inferior Court:) For the redress whereof by a statute made Ann 6. H. 8. it was ordained, St. 6. H. 8. 6 That the justices of the K. Bench (for the time being) have authority by their discretions, to remaund and send down as well the bodies of all felons, and murderers, brought and removed, or that shall be removed or brought before the king in his Bench, as their indictments, into the counties whereas the same murders or felonies have been committed or done, and to command all justices of jail delivery, justices of Peace, and other justices and Commissioners, and every of them, to proceed and determine upon all the foresaid bodies and indictments so removed, after the course of the common law, in such manner as the same justices of jail delivery, justices of peace, and other Commissioners, or any of them, might or should have done, if the said prisoners or indictments had never been brought into the said K. bench. St. 4. jac. 1. 6 By a stat. made Anno 4. jac. it was enacted, Trial of felonies committed by English men in Scotland. That all offences of conjurations, witchcraft, & dealing with evil and wicked spirits, murder, manslaughter, felonious burning of houses and corn, burglary, robbing of houses by day, robbery, theft, the detestable vice of buggery committed with mankind, or beast, and rape, heretofore done and committed since his majesties coming to the crown of England, or hereafter to be done or committed by any his majesties natural borne subjects of this realm of England, or the dominions of the same, within the realm of Scotland, or the dominions thereof, and the accessories of, and to the same, shallbe from henceforth inquired of, heard, and determined before his majesties Iust. of Assize, or his Commissioners of Oyer and Terminer, or jail delivery, being natural borne subjects within this realm of England, and none other, by good and lawful men of the Counties of Cumberland, Northumberland, Westmoreland, or any of the said counties, at the election of the said Iust. of Assizes, or Commissioners, in like manner and form to all intents and purposes (the alterations hereafter in this Act expressed, only excepted) as if such offences had been done and committed within the same Shire where they shallbe so inquired of, heard, and determined, as is aforesaid. At which trials, for the better discovery of the truth, Witnesses allowed to him that is arraigned. and for the better information of the consciences of the jury and justices, there shall be allowed unto the party so arraigned, the benefit of such witnesses only to be examined upon oath, that can be produced, for his better clearing and justification, as hereafter in this Act are permitted and allowed. St. 4. jac. 1. 7 Every justice of peace of the counties aforesaid, The prosecutors and witnesses bound to give evidence. unto whom complaint shallbe made, shall have full power and authority by virtue of this Act, to bind over by recognizance in a convenient sum taken to his majesties use, as well the party prosecuting, as any witnesses which he shall desire to produce (so as the said witnesses may have their reasonable charges first tendered unto them) to prosecute and give in evidence before such his majesties justices as aforesaid, as the case shall require. St. 4. jac. 1. 8 Every commander, procurer, counsellor, abettor, comforter, receiver, The accessary tried, though the principal be not. or other accessory of, or to any the offenders or offences aforesaid, so committed in Scotland, as aforesaid, offending within the realms of England or Scotland, shallbe produced, withal indicted, tried, judged, and executed without delay, notwithstanding the principals, or any of them be not convicted or attainted. And that no such offendor either accessory or principal shall be allowed the benefit of his clergy, No clergy. No peremptory challenge above v. The words of the Indictment. nor admitted to his peremptory challenge of above the number of five. And that every indictment of any of the offences aforesaid, so committed as aforesaid, shallbe adjudged of as good force in law, notwithstanding the words (contra pacem, coronam, & dignitatem nostras) be omitted, as if the said words had been therein contained. Every juror must have v. l. of freehold. 9 No Sheriff, Undersheriff, or other Minister, to whom it appertaineth, St. 4. jac. 1. shall return any juror to inquire of, or try any of the offences aforesaid, so committed as aforesaid, except every such juror shall have freehold in possession, to the value of v. l. by the year in the county where such inquiry and trial shall be, upon pain to forf. for every juror that shallbe returned contrary to this Act, the sum of xl. l. to the K. and I. to be recovered by A. of debt, B. P. or I. in any of the K. courts at West. wherein no E.P. or W. etc. And the offendor shall or may challenge any juror that shall pass upon his life, for want of such freehold, as aforesaid. The offendor shall forf. no lands. 10 No natural subject of his Majesty, of the realm of England, St. 4. jac. 1. or of the dominions of the same, shall for any the offences aforesaid, committed within the realm of Scotland, or for being accessary to the same, forfeit any lands, tenements, or hereditaments, either free, copy, or customary hold, neither shall the blood of such offendor be corrupted, nor the wife lose her dower, yet nevertheless the said offenders shall forf. to his Ma. his heirs, and successors, their goods, chattels, and credits whatsoever. A like Act made in Scotland. 11 And forasmuch as it is intended, St. 4. jac. 1. that an Act like unto this shallbe ordained in the realm of Scotland, for the trial and punishment of offenders, being his Ma. natural born subjects of the same realm, which shall commit any of the offences aforesaid within the realm of England, or the dominions thereof, and shall after escape, or return back into Scotland: therefore be it enacted, that upon complaint made by any of his Ma. subjects of the realm of England to any of the Iust. of Assize, Commissioners of Oyer and Terminer, or jail delivery, or Iust. of the peace within the precincts of their several commissions respectively, being natural borne subjects within the realm of England, concerning any such offences committed by any his subjects of the realm of Scotland, within the realm of England, in case where the offendor is returned into the realm of Scotland, as aforesaid, the said Iust. or commissioner, shall have full power and authority, Binding the complainant or witnesses to give evidence in Scotland. to bind over as well the said party complaining, or prosecuting, as any witnesses that he shall desire to produce (so as their reasonable charges be first tendered unto them) by recognizance in a convenient sum to his majesties use, to prosecute and give in evidence within the realm of Scotland: wherein if default shallbe made, and the same proved by certificate, or otherwise, before the Lord Treasurer, Chancellor, and Barons of the Exchequer, or any of them in the Exchequer chamber, and a decree there made, that the same recognizance shall stand forfeited: then the court of Exchequer shall thereupon proceed for the levying of the debt of the said recognizance, as if it were adjudged forfeited by the course of the common law. St. 4. jac. 1. 12 On the other part, Scottish men repairing into England to give evidence, shallbe free from arresting. every of his majesties subjects of the realm of Scotland, either party grieved, or witness, which shall prosecute in any the cases aforesaid, within the realm of England, and thereby shall have occasion to make his repair hither, either voluntary, or by the like bond (as is before expressed on the part of the realm of England) shall have and enjoy privilege and immunity from all manner of arrests, concerning all offences, or other causes, as well capital as others, committed, done, or occasioned, before he shall come into England as aforesaid (except treason or wilful murder) so long as he or they shallbe necessarily going, coming, or abiding within the said realm of England, for the prosecution of the said offenders. St. 4. jac. 1. 13 Provided nevertheless, The offence shallbe laid where it is done. that every such offence so committed as aforesaid, shallbe laid and alleged in the indictment or other declaration, to be done and committed in the realm of Scotland, according to the truth of the fact, and not in the counties where the trial is limited, to be had and made as aforesaid: any thing in this Act formerly contained to the contrary notwithstanding. St. 4. jac. 1. 14 Provided, He that is once tried, shall not be eftsoons called into question. that if any of his majesties subjects of the realm of Scotland, shall be proceeded with, and tried in the Realm of Scotland, upon the prosecution of any party grieved, and upon evidence in open court, for any offence done or committed within the Realm of England, that no such person shallbe eftsoons called into question, or proceeded with for the same fact within the realm of England, but that it shallbe lawful for every such persons, to plead and allege for himself, upon his arraignment, that he was formerly lawfully acquitted, convicted or attainted of the same offence within the realm of Scotland, and that thereupon all further proceeding shall stay, until the Court have sufficiently informed themselves by certificate from the realm of Scotland, or by any other good ways, and means of the truth of the said allegations, which if they shall find true, the said person shallbe forthwith discharged of all further impeachment or proceeding. St. 4. jac. 1. 15 No natural borne subject of the Realm of England, None shallbe sent out of England to receive his trial. or the Dominions of the same, shall for any High Treason, Misprision, or concealment of High treason, Petit treason, or any other whatsoever offence or cause committed within Scotland, be sent out of England, where he is apprehended, to receive his trial, until such time as both Realms shall be made one in laws and government. St. 4. jac. 1. 16 At all such trials the jurors then and there sworn, The jurors shall allow of, or reject the witnesses. or the greater part of them (who in respect of the great trust and charge which must now be laid upon them, are by virtue of this Act, as before appeareth, to be persons of better conditions and quality, than the law required heretofore for jurors in trial of like offences) shall have in their power and election according to their consciences and discretion upon their oaths, to receive and admit only such sufficient, good, and lawful witnesses upon their oaths, either for, or against the party arraigned, as shall not appear to them, or the greater part of them, to be unfit and unworthy to be witnesses in that case, either in regard of their hatred and malice, or their favour and affection, either to the party prosecuting, or to the party arraigned, or of their former evil life and conversation. Trial by Peers. 17 Provided, that if the offendor in any the cases aforesaid, St. 4. jac. 1. shall be a Peer of the Realm, than his trial therein shallbe by his Peers, as is used in case of Felony or Treason, and not otherwise. 1 Trial of him which woundeth a man in one county, whereof he dieth in another. S. Principal etc. 16. 2 Trial of a felony committed in one county, and accessory thereunto in another. S. Principal etc. 17. 18. 3 Trial of Treason, Misprision of Treason, and Murders, where the King will. S. Indictments 10. 4 Indictments and trials of Treasons committed out of the Realm. S. Indictments 11. ❧ Challenge. 1 WHen the prisoner standing at the bar hath pleaded not guilty, and that the same issue is to be tried between the King and him, or the appellant and him, the law doth allow him to challenge, viz. calumniari, to take exception unto, or to desire to have removed, or put out of his jury certain persons: And he may therein have more favour than either of the parties to a suit shall have in other trials between party and party: For being arraigned of felony, he may have a peremptory challenge Peremptory Challenge. in favour of life, which is to say, challenge without showing cause. And though he can show no cause to challenge him that he doth challenge, yet if his fantasy or affection doth not stand unto him, by this peremptory challenge he may cause him to be removed and put from the jury. And by the common law this peremptory challenge was permitted to the number of 35. persons, viz. to so many as would make up full three juries (saving one man) But sithence by a Statute made Anno 22. H. 8. St. 22. H. 8. 14. Anno 32. H. 8. 3. it is enacted, That no person arraigned for any petit Treason, Murder, or Felony, shall be from henceforth admitted to any peremptory challenge above the number of twenty. And so by this statute, the number is abridged in three special cases, viz. in Petit treason, Murder, and Felony: And so for High treason peremptory challenge did remain as it was at the common law, until it was wholly taken away by the Statute of Anno 33. H. 8. St. 33. H. 8. 23. which did ordain, That peremptory challenge should not thenceforth be admitted or allowed in cases of High treason, or Misprision of treason: And yet after that, challenge was again revived in cases of High treason, by a statute made Anno 1. & 2. P. & M. St. 1. & 2. P. & M. 10. whereby it was enacted, That all trials hereafter to be had, awarded, or made for any Treason, shall be had and used only, according to the due order and course of the common Laws of this Realm, and not otherwise. And then if all trials in Treasons shall be according to the common Law, peremptory challenge shall be allowed upon trial, according to the course of the common law, as well in Petit treason, as in High treason. A man being arraigned of High treason, 32. H. 6. 20 14. H. 7. 19 and pleading not guilty, certain of the jurors were sworn and tried, the residue being drawn forth by challenge, and the inquest remaining for default of jurors, at another day the defendant did peremptorily challenge some of those that were first sworn, and the challenge was allowed in favour of life. 2. R. 3. 13. And in an Appeal of Robbery the defendant challenged a juror for a cause which was tried against him, and then the jury remained for default of jurors, and at another day he challenged the same juror peremptorily, and he was allowed so to do. This peremptory challenge is not to be taken, but where the life of the prisoner is in jeopardy by the trial. And therefore if a man be outlawed of treason or felony, and brought to the bar, and there doth plead misnaming, or some other plea in avoidance of the said outlawry: in that case he shall not have his peremptory challenge, for that neither treason nor felony is to be tried by this issue, because they were at an end before by the outlawry. Severance in challenge. If two, three, four, or more persons, be indicted or appealed, and arraigned of one offence, 9 Ed. 4. 27. Pl. Com. 100 and one inquest is charged to try them all, if one of those persons arraigned do challenge peremptorily any of those jurors, he shallbe drawn, and put out for them all, though one or some other do desire that he may be sworn: for though they be all arraigned together, yet in the judgement of law it is several arraignments, for that their offences be several, and not one, though they be indicted of one offence, and so every of the prisoners shall have his challenge, so that he do not challenge peremptorily above the number of twenty persons. But if the Court will, it may divide the panel, and also the Tales, and make them several for every of the prisoners, and then every prisoner's challenge shall be by itself, and avail himself only that maketh it. 2 Besides the foresaid peremptory challenge, which is grounded upon opinion or fantasy, without cause, there is another kind of challenge, which is called Challenge upon cause, Challenge upon cause. and is not allowable but upon reasonable and good cause, ordained by the common laws or statutes of this Realm: Whereof one challenge which was at the common law, and is also confirmed by statute, is a challenge of the indictors: for as Britton Britton. saith, when the defendant doth submit himself to be tried by the country, and the jurors do appear at the bar, they may be challenged, and the prisoner may say, 27. As. p. 13. This man ought not to be of my jury, for he did indict me, and I do presume of him, and of all my indictors, Indictor. that they do carry the same affection towards me now, which they did when they indicted me: and this exception is to be allowed in case of death. And the same law is confirmed, and in a sort augmented by the statute de proditionibus, made Anno 25. Ed. 3. St. 25. E. 3. 3 by the which it was accorded, That no indictor shall be put in Inquests upon the deliverance of the indictees, of Trespass, or of Felonies, if he be challenged for that cause by him that is indicted. And as it may appear, this Statute is but a confirmation of the common law in this point, and so to be taken favourably, 8. H. 4. 3. 7. E. 4 4 and by that means it may be extended as well to Treasons as to Felonies. And also it may be construed, as well where the prisoner is indicted & arraigned upon an Appeal, as where he is indicted and arraigned upon the indictment, though the same be not contained within the express words of the said statute. Challenge for want of medietatem linguae. 3 There is another challenge upon cause, which is to the Array, and that is, when an Alien is arraigned of Felony, and pleadeth to an Issue, and the inquest is returned all of English men, this is a cause of challenge, by force of the Statute of Anno 28. Edw. 3. St. 28. E. 3. 13 which did ordain, That in all manner of Inquests and proofs which be to be taken or made amongst aliens and Denizens, be they Merchants, or others, as well before the Mayor of the Staple, as before any other justices or Ministers, although the king be party, the one half of the inquest or proof shall be by Denizens, and the other half of Aliens, if so many Aliens be in the Town or place where such inquest or proof is to be taken, that be not parties, nor with the parties in contracts, pleas, or other quarrels, whereof such inquests or proofs ought to be taken. And if there be not so many aliens, then shall there be put in such inquests or proofs as many aliens as shall be found in the said Towns or places, which be not thereto parties, as afore is said, and the remnant of denizens, which be good men, and not suspicious to the one party, or to the other. At the common Law, before this statute, and the statute of 27. Ed. 3. St. 27. E. 3. 8 this Trial per medietatem linguae might have been obtained by the Kings grant: as, if the King had granted to a company of aliens, M. 22. Ed. 3. 14 viz. of Almains, Frenchmen, etc. that when any of them was impleaded, the one half of the inquest should have been of their own language: and after, to make that a general Law, the statute of 27. Edw. 3. was made. But seeing that statute did not remedy the mischief, where the King was party, the before rehearsed statute of 28. Edw. 3. was provided, which maketh mention generally of aliens: therefore it is not material of what Nation those aliens are, which shall be of the inquest, so that they be aliens, though they be of another Nation than the party to the suit is. And because this Statute was ordained for the benefit of aliens, and of none but of aliens, and for that there were in this Realm of long time assembled some strangers together, with many English vagrant Rogues and Vagabonds, calling themselves Egyptians, which by their counterfeit speeches, apparel, and behaviour, could hardly be discerned one from the other: Therefore by a Statute made Anno 22. H. 8. St. 22. H. 8. 10. it is enacted, That if it happen any outlandish person, calling himself an Egyptian, Egyptians or any such stranger, to commit within this Realm any Murder, Robbery, or Felony, and thereof to be indicted and arraigned, and to plead not guilty, or any other plea triable by the Country, than the inquest that shall pass between the King and such party, shall be altogether Englishmen. And by another Statute made Anno 1. & 2. Ph. & Ma. St. 1. & 2. P. & M. 4. it was ordained, That if any of the said persons, called Egyptians, which shall be transported or conveyed into this Realm of England, or Wales, do continue within the same by the space of one month, that then he or they so offending, shall by virtue of this act be adjudged a Felon and Felons, and shall suffer death, loss of lands and goods, as in cases of Felony, and shall upon the trial of him or any of them be tried by the County, and the inhabitants of the County or place where he or they shall be apprehended or taken, and not per medietatem linguae, and shall lose the benefit of Clergy and Sanctuary. And whereas the words of the foresaid Statute of 28. Edw. 3. be, That in all manner of Inquests and proofs which are to be taken etc. those words are not to be construed of an Indictment, for that may be taken all of Denizens, though it do concern an Alien: But the Statute is to be intended of such Inquests, where the party is admitted to his challenge, and so he is not upon an Indictment: for the party which is an alien may upon his arraignment have the said challenge in the array, 21. H. 7. 32. to show that in the panel there is not medietas linguae, according to the statute, for he hath none other remedy being defendant. But if he were plaintiff it should be otherwise: for then before the Venire facias awarded, he must suggest, that he is an Alien, and pray Process to summon the jury De medietate linguae, according to the Statute: and further, he must surmise in what parts beyond the seas he was borne, Lib. Int. to the intent that men of the same country may be of his inquest, if they may be had: and if they will not signify that before the Venire facias awarded, he shall not suggest it after: neither shall he challenge the Array, or Poles for that cause, seeing it was his folly, M. 22. E. 3. 20. that he took not the benefit of the Statute in due time, and specially when he knew himself to be an Alien. And whereas the words of the foresaid Statute of 28. Edw. 3. be (That are not parties, nor with the parties in contracts, pleas, or other quarrels, whereof such Inquests or proofs ought to be taken) By these words it doth appear, that the makers of this Statute would, that the parties should have their Challenges to the Poles in those said cases. And therefore, though they have not expressed but certain cases, which induce hatred, or malice, yet by the mentioning of them, it seemeth, that they intended to allow all Challenges, which do induce favour, or otherwise. And the foresaid Statutes of 27. Edw. 3. & 28. Edw. 3. do only extend, where there is but one only of the parties to the suit an alien: for if they be both aliens, the inquest shall be all of Englishmen, and not de medietate linguae, unless the plea be depending before the Mayor of the Staple, 21. H. 6. 4. and both the parties be Merchants of the Staple, or officers of the Staple, in which case then by the Statute of 27. Edw. 3. 8. the inquest shall be all of aliens. If an alien be indicted of high Treason, Treason. P. 3. & 4. P. M. ●● y. f. 144 St. 1. & 2. P. & M. ●0. Dyerf. 304, he shall not have his trial per medietatem linguae, but the trial shall be according to the due order & course of the common Laws of this Realm. And if a Scot be indicted of Felony, he shall not have his trial per medietatem linguae, A Scot for that a Scot was never accounted an Alien, but rather a Subject. Challenge for want of sufficient freehold. 4 There is another Challenge upon cause, viz. for want of sufficient freehold, which is a Challenge of the Poles, and this Challenge was given by the Statute of 2. H. 5. St. 2. H. 5. 3. which doth ordain, That no person shall be admitted to pass in any inquest upon trial of the death of a man: or in any inquest between party and party in plea real, or in plea personal, whereof the debt and damages declared do amount to forty marks above all charges, if the same person hath not Lands and Tenements of the yearly value of forty shillings above all charges, so that he be challenge for that cause by the party. And because many merchants aliens, and other aliens, which neither had nor could purchase any Land in this Realm, were greatly discontented with the foresaid Statute of 2. H. 5. and were ready to departed this Realm, for that the same Statute did take away, or was expounded to diminish the chief force of the before mentioned Statute of 28. Edw. 3. 13. and by that means to abridge aliens of their Trials in most cases per medietatem linguae. Therefore the more to encourage Merchants to continue here, and also others to come with their merchandises into this Realm, by a Statute made Anno 8. H. 6. St. 8. H. 6. 29 it was declared, That the same Statute made Anno 2. H. 5. should be no ways prejudicial to the foresaid first statute made 28. Edw. 3. nor was not meant that it should extend to any, but only to Inquests to be taken between denizen and denizen, and not to the other Inquests or proofs mentioned in the said Statute of 28. Ed. 3. viz. to Inquests to be taken between Denizens and Aliens. And that the first statute of 28. Ed. 3. should be effectual, stand in force, and be put in execution, according to the form thereof, notwithstanding the later Statute of 2. H. 5. and notwithstanding that Aliens have not lands or tenements of the yearly value of forty shillings, according to the purport of the said later statute of 2. H. 5. And so by this statute, want of sufficient freehold is the cause of Challenge to Aliens which be impanelled with English men. But yet it seemeth to be a cause to challenge English men, who be impanelled with Aliens, for the perclose of this Statute doth wholly rely upon Aliens. This last rehearsed Statute of 8. H. 6. willeth, That the intent of the other Statute of 2. H. 5. should be preferred before the words thereof, and so the judges of the law have expounded it, 9 H. 6. 27. for they have allowed a juror which had not forty shillings of freehold, to be sworn in an inquest, if others had so much land to his use. And where the words of the statute be (If he hath not lands or tenements of the yearly value of forty shillings) and doth not express in what County, yet they do take it by intendment, that the lands must be in the County where the issue is to be tried. 9 H. 7. 1. M. 12. H. 7. 4 H. 32. H. 8. 20. P. 21. H. 6. 39 And for that the words be in the Present tense (viz. if he hath not) they do expound it, that the juror must have so much land in the same County at that time when he is sworn: for though he had so much land when he was impanelled, yet if he hath aliened it, or that the same was evicted from him by an ancient title before the time he was sworn, the challenge of insufficiency shall be allowed unto the prisoner. And whereas the foresaid statute of 2. H. 5. hath ordained (That no person shall be admitted to pass in any inquest upon the trial of the death of a man, if he hath not lands of the yearly value of forty shillings) this is not meant of the trial of the death of a man which is slain, but of the trial of the death of a man which standeth at the bar upon the question of his life or death. And then will this challenge serve for want of sufficient lands, upon the trial of all manner of felonies and treasons. By the Statute of 33. H. 8. it is enacted, That he which is arraigned of treason, St. 33. H. 8. 12. murder, or manslaughter committed within the Verge, shall have no manner of challenge to any of the jury, malice only excepted (and so shall have no challenge for want of sufficient freehold.) And in like sort it is ordained by the Statute of Anno 3. H. 7. St. 3. H. 7. 14 That he which being the King's servant sworn, and whose name is in the check Roll of the King's household, under the degree of a Lord, which is arraigned for conspiring with any other, to destroy any Lord of this Realm, or any other sworn to the King's Council: Or the Steward, Treasurer, or Controller of the King's house, shall not have any challenge but for malice (and so shall have no challenge for want of sufficient freehold.) By a Statute made Anno 33. H. 8. St. 33. H. 8. 13. it was enacted, That if a Commission of Oyer and Determiner be directed into any County, for the trial of any person which doth confess any Murder to three of the King's Council, or is vehemently suspected thereof, no challenge for the Hundred or Shire shall be allowed unto him. But the challenge of any juror for lack of freehold, of the yearly value of forty shillings, shall be allowed, as hath been accustomed. And because Trials in Murders and Felonies, in Cities, boroughs, and Towns corporat within this Realm, having authority in the deliverance of such offenders, were oftentimes deferred and delayed, by reason of challenge made by such offenders, of jurors, for lack of sufficiency of freehold, to the great hindrance of justice: for the redress thereof, by a statute made Anno 23. H. 8. St. 23. H. 8. 13. it was enacted, That every person, being the kings natural subject borne, which either by the name of a citizen, or a freeman, or any other name, doth enjoy the liberties of any City, Borough, or Town● corporat, where he dwelleth, being worth in movable goods to the clear value of forty pounds, shall be admitted in trial of Murders and Felonies, in every Sessions and gaols of delivery kept in and for the liberty of such Cities, boroughs, or Towns corporat, albeit he hath no freehold. But this act extendeth not to any Knight or Esquire dwelling, abiding, or resorting to any such City, Borough, or Town corporat: any thing in the same act to the contrary hereof notwithstanding. 5 Upon the arraignment of a prisoner, the king by his prerogative might have challenged every of the jurors peremptorily by the common law, without showing of any cause thereof, and by that challenge the same juror should have been presently drawn. But this was a great mischief and offence to the subject, who by that means was infinitely delayed, and had often put out of the jury the most discreet and indifferent men, which were returned for his trial: For the remedy whereof, by a Statute entitled Ordinatio de inquisitionibus, Challenge for the king. made Anno 33. Edw. 1. St. 33. E. 1. it was established, That touching Inquisitions to be made before any justices, wherein the king is any way a party, although it be alleged by those which do prosecute for the king, that the jurors of those Inquisitions, or any of them, be not good for the king, those Inquisitions shall not therefore remain to be taken: But if they which do pursue for the king, will challenge any of those jurors, they shall show a certain cause of their challenge, and the truth of that challenge, whether it be true, or not, shallbe inquired of, according to the justices discretion. But he that doth prosecute the suit for the king, need not presently show the cause upon his challenge (as a common person should do, if he were party against the king) for he may show that cause when he hath perused the whole panel. But if he that is arraigned, 1. H. 5. 10 Fit. Chall' 105. 38. Ass. p. 22 do challenge any of the Poles, he must show the cause upon his Challenge, which must be presently tried, for that it is in a plea of the crown, wherein the king is a party. 6 A man outlawed of Felony An Outlaw of Felony. shall have his challenges upon an Issue taken, for the avoidance of the Felony: Fi. Chall' 153. 165. For though he cannot challenge a worse man than himself, being outlawed for Felony, yet seeing it is in Issue to try, whether he be an Outlaw, or not, and by this trial, if it be found for him, to defeat the same Outlawry, that opinion of him ought to be holden in suspense, until the said issue shall be tried against him. 21. H. 6. 30. 14. H. 4. 19 7 It is a good Challenge upon cause, to say, that one of the jurors is an Alien, or a Villain, or an Outlaw; A juror, an alien, villain, or outlaw. for than he is not Liber & legalis homo: For though an Alien borne hath dwelled in this Realm from his childhood, and be sworn in a Léet, or other Court, to the King's obedience, yet he is not the King's liege man: for the Steward of a Léet, nor any other, can make an Alien Legalis homo, but only the King. ❧ Evidence. 1 WHen a prisoner is indicted of Treason, or Felony, hath pleaded not guilty, is thereupon arraigned, and finished his challenges, than evidence is to be given against him to prove him guilty, which every person shall be admitted to do for the king. And because the evidence of those, that took the said offendor with the manner, did first accuse him, or brought him before the justices of Peace to be examined of the supposed offence, hath been always adjudged most pregnant and effectual: Therefore by a statute made Anno 1. & 2. Ph. & Ma. St. 1. & 2. P. & M. 13. it was ordained, That two justices of Peace at the least, Evidence against an offendor let to battle whereof one of them to be of the Quorum, when any prisoner is brought before them for any manslaughter, or felony, before any bailment or mainprize, shall take the examination of the said prisoner, and information of them that bring him, of the fact, and circumstances thereof, and the same, or as much thereof, as shallbe material to prove the felony, shall put in writing, before they make the same bailment: which said examination, together with the said bailment, the said justices shall certify at the next general jail delivery to be holden within their Commission: and that every Coroner, upon any inquisition before him found, whereby any person or persons shall be indicted for murder, or manslaughter, or as accessory or accessories to the same, before the murder or manslaughter committed, shall put in writing the effect of the evidence given to the jury before him, being material. And as well the said justices, as the said Coroner, shall have authority by this act to bind all such by Recognisance or Obligation, as do declare any thing material to prove the said murder, or manslaughter, offences, or felonies, or to be accessories or accessories to the same, as is aforesaid, to appear at the next general jail delivery to be holden within the County, City, or Town corporat, where the trial thereof shall be, then and there to give evidence against the party so indicted at the time of his trial, and shall certify as well the same evidence, as such bond and bonds in writing as he shall take, together with the Inquisition or Indictment before him taken and found, or before the time of his said trial thereof to be had or made. And likewise the said justices shall certify all and every such bond taken before them, in like manner, as is before said of baylements and examination. And in case any justice of peace, or Quorum, or Coroner, shall offend in any thing contrary to the true intent and meaning of this act, than the justices of jail delivery of the Shire, City, Town, or Place, where such offences shall happen to be committed, upon due proof thereof by examination before them, shall for every such offence set such fine on every such justice of Peace, and Coroner, as the same justices of jail delivery shall think meet, and shall estreat the same, as other Fines and Amerciaments assessed before justices of jail delivery ought to be. S. Mainprize 13. 2 Because the foresaid statute of 1. & 2. Ph. & Ma. 13. doth not extend to any such prisoners, as shall be brought before any justice of Peace, for Manslaughter or Felony, and by such justice shall be committed to ward, for the suspicion of such Manslaughter or Felony, and not bailed: in which case the examination of such prisoner, and of such as shall bring him, is as necessary, or rather more, than where such prisoner shall be let to bail: For the reformation whereof, St. 1. & 2. P. & M. 10. by a statute made Anno 2. & 3. Ph. & Ma. it was enacted, That such justices or justice, before whom any person shall be brought, Evidence against an offendor committed to prison for Manslaughter or Felony, or for suspicion thereof, before he or they shall commit or send such prisoner to ward, shall take the examination of such prisoner, and information of those that bring him, of the fact and circumstances thereof, and the same, or as much thereof, as shall be material to prove the Felony, shall put in writing within two days after the said examination, and the same shall certify in such manner and form, and at such time, as they should and ought to do, if such prisoner so committed or sent to ward, had been bailed, or let to mainprize, upon such pain as in the said former act is limited and appointed, for not taking or not certifying such examinations, as in the said former act is expressed. And the said justices shall have authority by this act to bind all such by Recognisance or Obligation, as do declare any thing material, to prove the said Manslaughter, or Felony, against such prisoner as shall be so committed to ward, to appear at the next general jail delivery, to be holden within the County, City, or Town corporat, where the trial of the said Manslaughter or Felony shall be, then and there to give Evidence against the party. And the said justices shall certify the said bands taken before them, in like manner, as they should and ought to certify the bands mentioned in the said former act, upon the pain, as in the said former act is mentioned, for not certifying such bands, as by the said former act is limited and appointed to be certified. 3 And for that men should be the readier and more willing to give Evidence against Robbers and other Felons, Restitution upon attainder by evidence. by a statute made Anno 21. H. 8. St. 21. H. 8. 11 it was established, That if any Felon or Felons do rob or take away any money, goods, or cattles from any of the king's subjects, from their person, or otherwise, within this Realm, and thereof be indicted, and after be arraigned of the same Felony, and found guilty thereof, or otherwise attainted by reason of Evidence given by the party so rob, or owner of the said money, goods, or cattles, or by any other by their procurement, than the party so rob, or owner, shallbe restored to his said money, goods, and cattles. Before which statute the party rob or owner of the goods stolen could not have had restitution, without suing of an Appeal against the Felon. Evidence given by a stranger. 4 If the servant be rob, the master may give evidence against the Felon, and have restitution by this statute, if so be, that the goods rob were the goods of the master: for the words of the statute be (The party so rob, or owner.) Also if he that was rob doth not give Evidence himself, but procure another to give the evidence, this is sufficient by the words of the statute, to obtain restitution of his stolen goods. There must be two accusers to give evidence in Treason. 5 By a Branch 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, convicted, condemned, or attainted, for any Treasons that now be, or hereafter shallbe, unless the same offendor or offenders be thereof accused by two lawful accusers, which said accusers at the time of the arraignment of the party accused (if they be then living) shall be brought in person before the party so accused, and avow and maintain that which they have to say against the said party, to prove him guilty of the Treasons or offences contained in the bill of indictment laid against the party arraigned, unless the said party arraigned shall willingly without violence confess 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 trials to be had, awarded, or made for any Treason, shall be had and used only, according to the due order and course of the common laws of this Realm, 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 remain in force, seeing it was ordained only for the accusation or evidence, and not for the time, place, or order of the trial. Evidence in high Treason. 6 If there be an accusor of high Treason of his own knowledge, 1. M. Dy. 98. or of his own hearing, and he doth utter it to another, that other may well be an accusor or witness. And likewise if the second man do utter it to the third, and the third to the fourth man, every of them may be an accusor or witness. Evidence against abettors to offences 7 By the statute of Anno 5. Eliz. St. 5. El. 1. it is ordained, That no person or persons shallbe 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 usurped power, and authority of the bishop of Rome, unless he or they be thereof lawfully accused by such good and sufficient testimony or proof, as by the jury, by whom he shall be so indicted, shallbe thought good, lawful, and sufficient, to prove 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, Evidence on the def. part. That such person and persons as shall be impeached for any offence made Felony by that Statute (being entitled an act against imbesilling of armour, habiliments of war, and victuals) shall by virtue of this act be received and admitted to make any lawful proof that he can, by lawful witness, or otherwise, for his discharge and defence in that behalf: any Law to the contrary notwithstanding. S. Felonies by Statute 33. ❧ Verdict. 1 AFter the prisoner hath pleaded not guilty, hath been thereupon arraigned, and evidence given against him in open court, before the judges and the jury, the same jury do departed from the bar to consider of their evidence & proofs, which being done, they return again to the court to give up their verdict, which as the issue of not guilty is general, so may they deliver their verdict guilty, or not guilty, if they will, and that their evidence be clear, and do induce them thereunto. But it is not always requisite to give a general verdict: for if the fact, whereupon the prisoner was arraigned, be such, that the jury do stand in doubt, whether it be felony, or not, they shall best discharge their consciences to give a special 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 assize, A verdict at large in felony or action of Trespass: as, they may deliver their verdict, 44. E. 3. 44 Fi. Cor. 284 286. 287. 47. Ass. p. 31 that the prisoner which is arraigned for the kill of a man, did slay the same man in his own defence: for he that is arraigned must plead not guilty (seeing that in his plea he cannot justify the kill of a man) and then the jury 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 jury to say, that the prisoner killed the man in his own defence, but they must show the cause, manner, and circumstance of the fact, that the court may discern & judge, whether the fact which the prisoner hath committed, be felony, or not, whether the prisoner standeth in the King's mercy, or not, and whether he shall lose his goods, or not. The verdict less penal than the indictment 2 As a jury may give a special verdict, touching a man that killed another in his own defence, so may they give a special verdict, where he that is arraigned killed another by misfortune: Or where he which committed the homicide, was not of perfect memory, or deaf & dumb, or an infant without discretion: Or that the thing which was stolen was not worth above x. d. Or that he which is indicted & arraigned for committing of a murder, T. 26. H. 8. 5 P. 9 El. Dy. 261. Pl. come. 101 Br. Cor. 221 Br. Appeal 122. did kill the man by chance medley, or in his own defence, and not of malice prepenced. And if two be indicted for committing of a felony, & do plead thereunto not guilty, the jury may find, that one of them committed the felony by the procurement of the other, but that he which was the procurer was not present at the committing of the felony. 3 And as a jury may give a special verdict to attenuate an offence, The verdict more penal than the Indictment. and to make it less penal than is contained in the Indictment (as in the cases aforesaid) so may they by a special verdict aggravate the offence, more than the Indictment did. As, a man was indicted and arraigned for the stealing of linen Cloth to the value of two shillings, whereunto the prisoner pleaded not guilty, Fi. Cor. 115 and the jury found that he did rob the owner of the linen cloth, to the value of x. s. and further, that he took it from the person of a man, whereupon he was adjudged to be hanged. 4 When a man is indicted of the death of another man before the Coroner, Where a jury shall find who killed the dead man. upon the sight of the body slain, and after is acquit, the jury which acquitted him must find one that killed him, 14. H. 7. 2. 13. E. 4. 3. 22. As. p. 39 7. Eli. Dyer 238. or else the means whereby he came to his death: and if they find that I.N. killed him, this shall serve for an indictment against I.N. for it is certain, that there is such a person dead, seeing the Coroner did see him, and so recorded it, and therefore the manner of this persons death must not cease to be tried until it be found. But it is otherwise, where the prisoner is indicted before other justices, because notwithstanding such an indictment, it may be there was no such person dead: for the body was not seen by the justices, before whom that indictment passed, as in the other case it was by the Coroner: and therefore their record in that case, touching the death of a man, cannot be of so great force as the coroners is, unless it be where the death of the man is notorious and generally known; then if he, which upon an appeal or indictment of the death of that man is arraigned, 21. E. 3. 17 & pleadeth not guilty, is by the jury found not guilty, the jury shallbe charged to inquire who killed him: as, a man was indicted and arraigned for the kill of another man, who thereunto pleaded not guilty, and the jury found him not guilty: and because the man was known to be killed in the presence of many, the justices charged the jury to inquire and find who killed him, 37. Ass. p. 13 and then they found, that the same man which was killed, was in a Tavern, and drunken, and fell upon his own knife by mischance, and so was the cause of his own death. ❧ Clergy. What Clergy is. 1 Clergy is an ancient liberty of the holy Church, and it is when a priest, or one within holy orders, or any other in whom there is no impossibility to be a priest, is arraigned of Felony before a secular judge, he may pray to have his Clergy, which was as much (before the statute of 18. Eli. St. 18. Eli. 6. ) as if he had prayed to be dismissed of the temporal judge, and to be delivered to the Ordinary to purge him of that offence: and now sithence that statute, it is as much as if he should pray (after the burning in the hand) to be enlarged, and delivered out of prison. And it appeareth by the statute of Articuli Cleri, made Anno 9 Ed. 2. St. 9 E. 2. 15 That a Clerk ought not to be judged by a Temporal judge, nor any thing may be done against him, that concerneth his life, or dismembering of him: and though this privilege had his beginning from the Cannon Law, and not from the common Law of this Realm, yet it hath been confirmed by divers parliaments, and the temporal judges have so favourably used it, that they have granted it to all that can read, although they be no priests, nor within holy orders (which is more than the Cannon Law requireth: for the Cannon Law expecteth no more than that it shallbe granted to priests, and such as be within holy orders.) Where no Clergy by the common Law 2 None of them in whom there is any impediment to be Priest, can by the common Law have the privilege of Clergy: as, he that is blind or maimed, or one such as by no dispensation by the Laws of the Church can be Priest, can have the privilege of Clergy: Fi. Cor. 461 Neither can any woman have the privilege of Clergy. Committer of Sacrilege 3 He that hath committed Sacrilege, Fi. Cor. 120 283. 257 26. As. p. 1● 27. Ass. p. 42 shall not have the privilege of clergy by the common Law, if the Ordinary do refuse him & the secular judge do assent to his refusal: and yet it is otherwise, if the Ordinary will claim him for a Clerk, and receive him. But if one that hath committed Sacrilege be arraigned of another felony then of that Sacrilege, for the which he doth pray his Clergy, and doth read well, and the Ordinary knowing that he hath committed Sacrilege, or some other grievous crime, doth refuse him, the said offendor shallbe hanged, 21. Ed. 4.21 though the Ordinary doth not show to the judges the cause of his refusal. S. Br. 24. Fi. Cor. 233. 26. Ass. p. 19 4 If one that is a priest, or within holy orders, having not the habit or tonsure of a clerk, Habit or tonsure of a clerk. do demand his clergy, if the Ordinary do refuse him for it, he shallbe hanged: 9 E. 4. 28. & so shall he be, if the court do refuse him for that cause, though the Ordinary do not refuse him. S. Br. 5. 5 He that had his clergy once, Clergy allowed but once. should have had it again by the common law, and so, oft times: but by the stat. of 4. H. 7. St. 4. H. 7. 13 it was enacted, That every person (not being within orders) which once hath been admitted to the benefit of his clergy, being eftsoons arraigned of any such offence, shall not be admitted to the privilege of his clergy. And every person so convicted for murder, shallbe marked with an M. upon the brawn of the left thumb: and if it be for any other felony, he shallbe marked with a T. in the same place of the thumb; and those marks to be made by the gaoler openly in the court before the judge, before the person be delivered. And after by the stat. of 28. H. 8. & 32. H. 8. St. 28. H. 8. 1. St. 32. H. 8. 3 it was enacted, That such as be within holy orders shall be and stand under the same pains & dangers for their offences, and be used and ordered to all intents, as other persons not being within holy orders shallbe. 6 He that killeth a man in his own defence, Killing a man by mischance, or in his own defence. or by misadventure, by the common Law shall not have his clergy: Br. Cor. 183 Neither shall he who committeth petite Larceny Petit larcenie have his clergy, and the reason is, for that in those cases he shall not have judgement of death. 19 H. 6. 47. Fit. Co. 283 St. 25. E. 3.4 7 He which had offended in high Treason Offenders in Treasons. by the common law, should not have had his clergy, neither he which had offended in petit Treason, until by the stat. of Ann 25. E. 3. pro Clero it was enacted, That all Clerks, as well secular as religious, which shallbe from henceforth convict before the secular justices for any manner Treasons and Felonies touching other persons than the King himself, or his royal Majesty, shall freely have and enjoy the privilege of holy Church, and shallbe without any impeachment or delay delivered to the Ordinaries demanding them. It appeareth by the statute of Anno 4. H. 4. St. 4. H. 4. 3 That the Clergy promised to the King in Parliament, that a Clerk convict for Treason touching the King himself, or for being a common thief notoriously detected, and delivered to the Ordinary, shall not make his purgation. 8 He that had confessed a felony, Confession of felony. could not have had his Clergy by the common Law, until the stat. of Ann 9 E. 2. St. 9 E. 2. 15 viz. Articuli Cleri, was made: Because after his confession he could not purge him of that offence, and therefore it was in vain to have him delivered to the Ordinary, to be tried of that offence. But the spiritual men at that time intended, that the same confession of a Clerk before a Temporal judge was void, for that he could not be judge of a Clerk: and therefore they obtained remedy by the said articles in two special cases, viz. Abjuration and Approvement: and by the equity of the said statute, and in favour of life, it is now permitted in all other cases of attainders. Clergy taken away by several statutes. A Cutpurse. 9 By the statute of An. 8. Eliz. St. 8. El. 4. it is enacted, That no person or persons which shallbe indicted or appealed for felonious taking of any money, goods, or cattles from the person of any other privily, without his knowledge, in any place whatsoever, and thereupon found guilty by verdict of xii. men, or shall confess the same upon his or their arraignment, or will not answer directly to the same, according to the laws of this Realm, or shall stand wilfully, or of malice, or obstinately mute, or challenge peremptorily above the number of xx. or shallbe upon such indictment or appeal outlawed, shall be admitted to have the benefit of his or their clergy, but be excluded thereof, and shall suffer death in such manner & form, as they should if they were no clerks. Forging of writings. 10 By the stat. of An. 5. El. St. 5. El. 14. it is established, That if any person or persons being convicted or condemned of any of the offences specified in that Statute (provided against the forging of evidences & writings) by any of the ways or means in the same statute limited, shall after any such his or their conviction or condemnation eftsoons commit or perpetrate any of the said offences, in the form therein mentioned, that then every such second offence or offences shallbe adjudged felony, & the parties thereof convicted or attainted shall suffer death, loss, & forfeiture of their goods, cattles, lands & tenements, as in cases of felony, without having any advantage or benefit of Clergy or Sanctuary. S. Forging etc. 8. and Felonies by Statute 27. 11 By the statutes of Ann 25. H. 8. & Ann 5. El. St. 25. H. 8. 6 St. 5. El. 17. it is enacted, That if any do commit Buggery Buggery. with mankind or beast, the same offence shallbe adjudged felony, and that no person offending in the same shallbe admitted to his clergy. S. Felonies by Stat. 11. 12 By the statute of Ann 5. El. St. 5. El. 20 it is enacted, That every person and persons of the age of xiv. years, or above, calling himself an Egyptian, Egyptians. or being in company with them, or counterfeiting or disguising himself by his apparel, speech, or other behaviour, like unto the vagabonds, calling themselves Egyptians, and so doth continue at one or several times by the space of a month, shallbe adjudged a fellow, and shall lose the privilege and benefit of Sanctuary and Clergy. S. Felonies by Stat. 15. Relieving of a jesuit or Priest. 14 By the stat. of Ann̄ 27. El. St. 27. Eli. 2. it is enacted, That every person which shall wittingly & willingly receive, relieve, comfort, aid, or maintain any jesuit, seminary priest, or other priest, deacon, or religious or ecclesiastical person whatsoever, being borne within this realm, or any the dominions thereof, & heretofore (sithence the feast of S. john the Baptist ann 1. Reg. El.) ordained, made, or professed, or hereafter to be made, ordained, or professed by any authority or jurisdiction derived from the Sea of Rome, being at liberty, or out of hold, knowing him to be a jesuite, seminary Priest, or such other Priest, Deacon, or religious or ecclesiastical person, as is aforesaid, shall for such offence be adjudged a fellow without benefit of Clergy, and shall suffer death, lose and forfeit as in case of one attainted of felony. S. Felonies by Stat. 22. 15 By the Statute of Anno 18. Eliz. St. 18. El. 6. it is ordained, That if any person or persons shall fortune to commit or do any manner of felonious Rape, Rape. Ravishment, or Burglary, Burglary. or shall unlawfully and carnally know and abuse any woman child under the age of ten years, and shall be thereof found guilty by verdict, be outlawed, or confess the same upon his arraignment, he shall suffer pains of death, and forfeit as in cases of felony, without any allowance or privilege of Clergy. 16 By the statute of Ann 3. H. 7. St. 3. H. 7. 2 it is enacted, Taking a woman against her will. That if any person or persons shall take any maid, widow, or wife, which hath any lands or goods, or is heir apparent to her ancestor against her will unlawfully, such taking, procuring, and abotting to the same, and also receiving wittingly the same woman so taken against her will, & knowing the same, shallbe felony: and such misdoers, takers and procurators to the same shallbe reputed & taken as principal Felons. But this act doth not extend to any person taking a woman, only claiming her as his ward or bondwoman. Ward. Bondwoman And by the stat. of 39 El. St. 39 El. 9 it is ordained, That every such person & persons as shallbe convicted or attainted of or for any offence made felony by the foresaid act of ann 3. H. 7. or which shallbe indicted & arraigned of or for any such offence, & stand mute, or make no direct answer, or challenge peremptorily above the number of xx. shall in every such case lose his and their benefit of Clergy. Provided always, that this act shall not extend to take away the benefit of Clergy, but only from such person and persons as hereafter shall be principals, or procurers, or accessaries before such offence committed. S. Felonies by Stat. 5. 17 By the statute of An. 1. jac. St. 1. jac. 12 it is enacted, Conjuration. Witchcraft. That if any person or persons shall use, practice, or exercise any invocation or conjuration of any evil & wicked spirit, or shall consult, covenant with, entertain, employ, feed, or reward any evil & wicked spirit, to or for any intent or purpose, or take up any dead man, woman, or child, out of his, her, or their grave, or any other place where the dead body resteth, or the skin, bone, or any other part of any dead person, to be employed or used in any manner of Witchcraft, Sorcery, Charm, or Enchantment, or shall use, practice, or exercise any Witchcraft, Enchantment, Charm, or Sorcery, whereby any person shall be killed, destroyed, wasted, consumed, pined, or lamed in his or her body, or any part thereof: then every such offendor or offenders, their aidors, abettors, and councillors, being of any the said offences duly and lawfully convicted and attainted, shall suffer pains of death as a fellow, or felons, and shall lose the privilege and benefit of Clergy & Sanctuary: and if any person or persons shall take upon him or them by Witchcraft, Enchantment, Charm, or Sorcery, to tell or declare in what place any treasure of gold or silver should or might be found or had in the earth, Telling where things lost may be found. or other secret places, or where goods lost or stolen should be found or become, or to the intent to provoke any person to unlawful love, Provoking to love. or whereby any goods or cattles of any person shallbe destroyed, wasted, or impaired, or to hurt or destroy any person in his or her body, although the same be not effected and done: and being once convicted of the same offences, Destroying of men or cattle. as is aforesaid, do eftsoons perpetrate and commit the like offence, than every such offendor being of any the said offences the second time lawfully and duly convicted and attainted, shall suffer pains of death as a fellow, and shall lose the benefit and privilege of clergy and sanctuary. S. Felonies by Stat. 29. 18 By the statute of Anno 1. jac. St. 1. jac. 8 S. Murder 24. it is enacted, That if any person or persons shall stab or thrust Stabbing or thrusting. any person or persons that hath not then any weapon drawn, or that hath not then first stricken the party which shall so stab or thrust, so as the person or persons so stabbed or thrust, shall thereof die within the space of six months then next following, although it cannot be proved that the same was done of malice forethought: yet the party so offending, and being thereof convict by verdict of twelve men, confession, or otherwise, according to the Laws of this Realm, shallbe excluded from the benefit of his or their Clergy, and shall suffer death as in case of wilful murder. S. Homicide 24. A Recusant not abjuring, or returning. 19 If any such offendor, which by the tenor and effect of the act made Ann̄ 35. Eliz. St. 35. El. 1. (entitled an act to retain the queens Subjects in due obedience) is to be abjured the Realm, shall refuse to make such abjuration, as by that statute is appointed: Or after such abjuration shall not go to such Haven, and within such time as is appointed, and from thence depart the Realm, according to the said statute: Or after his departure shall return again into any of the king's Realms or Dominions, without his special licence in that behalf first had and obtained: then in every such case the person so offending shallbe adjudged a fellow, and suffer as in case of felony, without benefit of clergy. S. Felonies by Stat. 9 Abjuration of a Popish Recusant. 20 If any such offendor, which by the tenor and intent of the act made Ann̄ 35. Eliz. St. 35. El. 2. (entitled an act for the restraining of Popish Recusants to some place of abode) is to be abjured the Realm, shall refuse to make such abjuration: Or after such abjuration made shall not go to such haven, and within such time as is appointed, and from thence depart out of this Realm according to the said act: Or after such departure shall return and come again into any of the king's Dominions, without his special licence in that behalf first obtained and had: then in every such case the person so offending shall be adjudged a fellow, and lose as in case of felony, without benefit of Clergy. S. Felonies by Stat. 11. A Soldier departing from his captain. 21 By the statute of Ann̄ 18. H. 6. St. 18. H. 6. 10. it is enacted, That if any soldier, man of Arms, or Archer, which hath taken parcel of his wages of his Captain, and is entered of record the king's soldier (except notorious sickness or impediment by God's visitation doth let, which he shall immediately certify his captain, and repay his money) or else being in the enemy's country in garrison, or else where, in the king's service, where he is appointed to serve, doth departed without licence of the king's lieutenant, deputy, high admiral, vice-admiral, captain, or in their absence of their deputies, he shallbe taken, judged, and executed as a fellow. And by the Stat. of Anno 2. & 3. Ed. 6. St. 2. & 3. Ed. 6. 2. he shall not have advantage of his Clergy or sanctuary. S. Felon. by Stat. 21. St. 39 El. 17 22 By the Stat. of An. 39 El. it is ordained, That if any idle and wandering Soldier or Mariner Wandering soldiers and mariners. do not settle himself to labour, service, or other lawful course of life, without wandering; or otherwise repair to the place where he was born, or to his dwelling place, and there remain, betaking himself to some lawful trade or course of life: Or coming from his Captain, shall not have a testimonial of a justice of peace, etc. or shall counterfeit or forge such testimonial, or have with him any such testimonial forged, knowing the same to be forged, being retained into service, or shall departed within the year without the licence of him that retained him into service, Then he shallbe judged as a fellow without the benefit of clergy. S. Fel. by Stat. 3. 23 By the Stat. of An. 43. El. St. 43. Eli. 13 it is established, Taking away any person against his will in Cumberland etc. That whosoever shall without lawful authority take any of the king's subjects, against his or their wills, and carry him or them out of the counties of Cumberland, Northumberland, Westmoreland, or the Bishopric of Durham, or to any other place within any of the said counties, or detain, force, or imprison him or them as prisoners, or against his or their wills to ransom them, or to make a pray or spoil of his or their person or goods upon deadly feud, or otherwise, shallbe taken to be felons, and suffer death without benefit of Clergy, Sanctuary, or Abjuration, etc. S. Felonies by stat. 36. St. 1. E. 6. 12. 24 By the stat. of Anno 1. Ed. 6. it is ordained, That no person or persons that heretofore hath been, or that at any time hereafter shallbe in due form of the law attainted or convicted of murder Murder. of malice prepenced, Burglary. or of poisoning Poisoning. of malice prepenced, or of breaking of any house by day or by night, any person being then in the same house, where the said breaking hath been, or shall be committed, heretofore hath been, or hereafter shallbe thereby put in fear or dread, or of, or for robbing of any person or persons in the high way, Robbery in the high way. or near to the high way, or for felonious stealing of Horses, Stealing of horses Sacrilege. Geldings, or Mares, or of felonious taking of any goods out of any parish church, or chapel, or being indicted or appealed of any of the same offences, & thereupon found guilty by verdict of xii. men, or shall confess the same upon his or their arraignment, or will not answer directly according to the laws of this realm, or shall stand wilfully or of malice mute, shall not be admitted to have or enjoy the privilege or benefit of his Clergy or Sanctuary, but shallbe put from the same. Clergy allowed in all other felonies. And that in all other cases of Felony (other than such as are before mentioned) all and singular person and persons which shallbe arraigned, or found guilty upon his or their arraignment, or shall confess the same, or stand mute in form aforesaid, or will not answer directly in form aforesaid, shall have & enjoy the privilege and benefit of his or their Clergy and Sanctuary, in like manner and form as he or they should or might have done before the 24. of April, Anno 1. H. 8. 25 Because it was doubtful by the words mentioned in the foresaid act of 1. Ed. 6. 12. whether that any person being in due form of Law found guilty, or otherwise attainted or convicted for felonious stealing of one Horse, Gelding, or Mare, aught to be admitted to have and enjoy the privilege and benefit of his Clergy or Sanctuary: Therefore by a stat. made Anno 2. & 3. Ed. 6. St. 2. & 3. Ed. 6. 33. it is declared and enacted, That all and singular person and persons feloniously taking or stealing any Horse, Stealing one Horse. Gelding, or Mare, shall not be admitted to have or enjoy the privilege or benefit of his or their Clergy or Sanctuary, but shallbe put from the same, in like manner and form, as though he or they had been indicted or appealed for felonious stealing of two Horses, two Geldings, or two Mares of any others, and thereupon found guilty by verdict of twelve men, or confessed the same upon their arraignment, or stand wilfully or of malice mute. But he that is accessary to the stealing of Horses or Mares, Accessaries to stealing of Horses. shall have the benefit of his Clergy, for that the foresaid statutes shallbe taken strictly, P. 1. M. Dy. 99 which maketh mention expressly but of the principal. 26 By a statute made Anno 5. & 6. Ed. 6. St. 5. & 6. Ed. 6. 10. St. 25. H. 38. St. 23. H. 8.1 it was rehearsed and ordained, That where in the parliament holden at Westminster 15. die januarij Ann 25. H. 8. it is recited, That at the parliament holden at West. ann 23. H. 8. amongst other things it was ordained, That no person or persons, which after that time should happen to be found guilty after the laws of this land of any manner of petit Treason, or for any wilful murder of malice prepenced, or for robbing of any Churches, Chapels, or other holy places, or for robbing of any person or persons in their dwelling houses, or dwelling places, the owner or dweller in the same house, his wife, children, or servants then being within, and put in fear and dread by the same: Or for robbing of any person or persons in or near about the high way: or for wilful burning of any dwelling houses, or barns, wherein any grain or corn should happen to be: nor any person or persons being found guilty of any abetment, or procurement, helping, maintaining, or concealing of or to any such petite Treason, Murders, or Felonies, should not from thenceforth be admitted to the benefit of his or their Clergy, but should be utterly excluded thereof, and suffer death, in such manner and form, as they should have done for any the causes or offences abovesaid, if they were not Clerks. Which act extended but only where such offendor was convicted in such County or place, where such offence was so committed and done, and not where he or they did such offence in one County, and were taken with the manor in another County. Wherefore it was considered, That for as much as divers and many Felons and Robbers, that commit and do divers & many great heinous robberies & burglaries in one shire, & convey the spoil and robbery into any other shire, and there be taken, indicted, and arraigned of felony, for the felonious stealing of the same goods, in the same other Shire than where the same Robberies or Burglaries where done and committed, and not of the same Robbery nor Burglary, for that it was not done nor committed in the same Shire where they be so indicted and arraigned, and that by reason thereof such felons, robbers, and burglarers, had and enjoyed the privilege and advantage of their Clergy: For redress whereof it was enacted in the same Parliament holden in the said five and twentieth year of the said late King, That if any person or persons, after that time, after such robberies or burglary by him or them done in one County, should be indicted of Felony, for stealing of any goods or cattles in any other County within this Realm, and thereupon arraigned, and found guilty, or stand mute of malice, or challenge peremptorily above the number of twenty persons, or would not upon his or their arraignment directly answer to the same felony, that then the same person and persons so arraigned, and found guilty, or standing mute of malice, or challenging peremptorily above the number of twenty persons, or that would not directly answer to the law, should lose and be put from the benefit of his or their Clergy, in like manner and form as they should have been, if they had been indicted, arraigned, and found guilty in the same County where such robbery or burglary, as is aforesaid was done or committed, if it should appear to the justices before whom any such felons or robbers should be arraigned by evidence given before them, or by examination, that the same felons or burglarers should have been put from their Clergy, in case they had been indicted, arraigned, and found guilty in the same county where the same robberies or burglaries were committed or done, as in the same statute made in the safd five and twentieth year among other things more plainly appeareth. And where in the Parliament holden at Westminster, St. 1. E. 6. 12 the fourth day of November, in the first year of the reign of our Sovereign Lord the King that now is, it is ordained and enacted amongst other things, That no person or persons that before that time had been, or at any time hereafter should be in due form of law attainted or convicted of murder of malice prepensed, or of poisoning of malice prepensed, or of breaking of any house by day, or by night, any person being then in the same house when the same breaking had been, or after that time should be committed, being put in fear or dread, or of or for robbing of any person or persons in the high way, or near the high way, or for felonious stealing of Horses, Geldings, or Mares, or of felonious taking of any goods out of any Parish Church, or other Church or Chapel, or being indicted or appealed of any of the same offences, and thereupon found guilty by verdict of twelve men, or should confess the same upon his or their arraignment, or would not answer directly according to the laws of this Realm, or should stand wilfully or of malice mute, should not be admitted to have or enjoy the privilege or benefit of his or their Clergy or Sanctuary, but should be put from the same. And that in all other cases of Felony (other than such as be before mentioned) all and singular person and persons, which after the first day of March than next following, should be arraigned or found guilty upon his or their arraignment, or should confess the same, or stand mute in form aforesaid, or would not answer directly in form abovesaid, should have and enjoy the privilege and benefit of his or their Clergy, and the liberty and privilege of Sanctuary, in like manner and form, as he or they might or should have done before the four and twentieth day of April, in the first year of the reign of the said late King Henry the eight, as in the said Act made in the said first year, among other things more plainly appeareth. By reason of which article and clause, contained in the said Act made in the said first year, the said Statute made in the said five and twentieth year of the said late King, which did put such felons and burglarers from their Clergy, that do such offence in one County, and after are taken with the goods stolen in another County, and there indicted, arraigned, and found guilty, was made void: By reason whereof divers and many persons that since the said first year, have committed such Robberies and Burglaries in one County, and after have been taken with the manner in another County, and there indicted, arraigned, and found guilty, have had and enjoyed their Clergy, which they could not have had, in case the said Act made in the said five and twentieth year had stood in force, to the great boldening and comfort of such offenders: Stealing of goods in one County, and carrying them into another. Be it enacted, St. 5. & 6. E. 6. 10. That the said Act made in the said five and twentieth year, touching the putting of such offenders from their Clergy, and every article, clause, and sentence contained in the same, touching Clergy, shall from henceforth touching such offences to be committed and done, stand, remain, and be in full strength and virtue, in such manner and form, as it did before the making of the said Act made in the said first year of the reign of our said Sovereign Lord that now is, any clause, article, or sentence comprised in the said Act made in the said first year, to the contrary thereof notwithstanding. This Statute of 5. & 6. Ed. 6. doth not revive the whole before rehearsed Statute of 25. H. 8. (being before repealed by the last branch of the before specified Statute of 1. Ed. 6. 12.) but reviveth only so much thereof, as concerneth the stealing of goods in one County, and after carrying them into another County, as it appeareth by the words of the same Statute. And neither the said Statute of 25. H. 8. nor this Statute of 5. & 6. Ed. 6. do extend to Appeals, but only to Indictments: so that in an Appeal brought in the County whither the goods rob or spoiled were carried, if the defendant be convict thereof, the defendant may have his Clergy at this day. 27 By a Statute made Anno 5. & 6. E. 6. St. 5. & 6. E. 6. 9 it was rehearsed and established, That whereas at the Parliament holden at Westminster by prorogation anno 23. H. 8. St. 23. H. 8. 1 it was then and there among other things ordained, That no person or persons, which after that time should happen to be found guilty after the laws of this Realm, for any manner petit Treason, or for any wilful murder of malice prepensed, or for robbing of any Churches, Chapels, or other holy places, or for robbing any person or persons in their dwelling houses, or dwelling places, the owner or dweller in the same house, his wife, his children, or servants then being within, and put in fear or dread by the same, or for robbing of any person or persons in or near about the highways, or for wilful burning of any dwelling houses, or barns, wherein any grain or corn shall happen to be: nor any person or persons being found guilty of any abetment, procurement, maintaining, or concealing of any, or to any such Petit treasons, murders, or felonies, should from thenceforth be admitted to the benefit of his or their Clergy, but utterly to be excluded thereof, & suffer death in such manner and form as they should have done, for any the causes or offences abovesaid, if they were not Clerks (such as be within the holy orders (that is to say) of the orders of Subdeacon, or above, all only excepted, as by the same act among other things more plainly appeareth) the which act was made to endure until the last day of the next parliament, and after that at the Session of the parliament holden at Westminster by prorogation in the 32. St. 32. H. 8. 3 year of the reign of the said late king, the same act with other acts was made to continue for ever. Since the making of which statute it hath been doubted, that if such robberies and felonies have been committed and done in dwelling houses and dwelling places, the owner or dweller in the same house, his wife, his children, or servants, being then put in fear or dread by the same, shall not lose the benefit of their clergy, if the offenders be therein found guilty by the laws of this Realm, unless the same robbery or felony be committed & done in the very chamber, house, or place, where the owner or dweller in the same house, his wife, children, or servants shall happen to be, or lie at the time of such robbery and felony committed & done, and put in fear and dread, although the owner or dweller in such house & houses, his wife, his children or servants at the time of such robbery & felony committed and done, were or lay in other places within the precinct of the same dwelling houses, nigh unto the house or place where such robbery & felony shall happen to be done: Or if it happen that the owner or dweller within the same house where such robbery & felony shall happen to be done, his wife, children, or servants to be asleep at the time of such robbery & felony committed & done, although the same robbery were done in the chamber or place where the owner or dweller in the same house, his wife, children, or servants, then lay, the offenders being found guilty thereof, according to the laws of the land, should not lose the benefit and advantage of his clergy. And where also it hath been in question, and doubted, that if such robberies & felonies happen to be committed and done in any booth or booths, tent, or tents, in any fair or market, the owner of the same, his wife, children, or servants happen to be within the same at the time of the committing of such felonies, and put in fear and dread, the offenders therein being found guilty, after the laws of this realm, should not lose the benefit of their Clergy. For the true declaration & explanation of the same doubts or questions before recited, St. 5. & 6. E. 6. 9 be it enacted, Robbing of houses. That if it happen any person or persons to be found guilty according to the laws of this realm, for robbing of any person or persons in any part or parcel of their dwelling houses or dwelling places, the owner or dweller in the same house, or his wife, his children, or servants, being then within the same house or place, where it shall happen the same robbery and felony to be committed & done, or in any other place within the precinct of the same house, or dwelling place, that such offenders in no wise shallbe admitted to their clergy whether the owner or dweller in the same house, his wife, or children, then and there being, shallbe waking or sleeping. And that no person nor persons which shall happen to be found guilty after the laws of this realm, of, & for robbing any person or persons in any booth or tent in any fair, Robbing of booths or tents or market, the owner, his wife, his children or servants, or servant, then being within the same booth or tent, shall not from henceforth be admitted to the benefit of his or their clergy, but utterly be excluded thereof, and suffer death in such manner & form as is before mentioned in the said act, made in the said 32. year of the reign of the same late king for robberies and felonies committed and done in dwelling houses and dwelling places, the owner or dweller in the same, his wife, children or servants then being within the same, and put in fear and dread, without having any respect or consideration, whether the owner or dweller in such booths and tents, his wife, children, or servants being in the same booths or tents, at the time of such robberies and felonies committed, shallbe sleeping or waking. This statute mentioneth only where one is found guilty after the laws of this Realm: and therefore it is to be considered, if the offendor do confess the felony, or stand mute, or challenge peremptorily above twenty persons, or will not answer directly to the felony, whether he shall have his clergy or not, because he is out of the words of this statute. Also this statute doth not take away the benefit of Clergy from the offendor, but where the owner, his wife, children, or servants were within the house at the time of the offence committed: for if none of them but a stranger did lie within the house by the licence of the owner, at the time of the offence committed, then is the offendor out of the danger of this Statute. And so he that is attainted by outlawry, or by battle, Attainder by outlawry, or by battle. is out of the cases of all the foresaid statutes which do take away Clergy. One was indicted, for that he did feloniously take xl. s. in money numbered, 5. El. Dyer. 224, from the person of I.S. and he had his Clergy in this case, for that it was not robbery, because it was not found by the indictment, that the person of I.S. was put in fear by assault and violence. 28 Because divers lewd persons, understanding that the penalty of robbing of houses in the day time (no person being in the house at the time of the robbery) is not so penal, as to do a robbery in any house, any person being therein at the time of the robbery, which hath and doth embolden several lewd persons to watch their opportunity and time to commit and do many heinous robberies, in breaking and entering divers honest persons houses, and specially of the poorer sort of people, who by reason of their poverty are not able to keep any servant, or otherwise to leave any body to look to their house when they go abroad to hear divine service, or to follow their work to get their living: For the prevention whereof, by a statute made Anno 39 Elizab. S. 39 El. 25 it was enacted, That if any person or persons shall be found guilty, and convicted by verdict, confession, or otherwise, according to the laws of this Realm, for the felonious taking away in the day time, Robbing a house in the day time. of any money, goods, or cattle, being of the value of five shillings or upward, in any dwelling house, or houses, or any part thereof, or any outhouse, or outhouses, belonging and used to and with any dwelling house or houses, although no person shall be in the said house or outhouses, at the time of such felony committed: then such person and persons shall not be admitted to the benefit of his or their clergy, but shall be utterly excluded thereof. Commandment or counsel of felonies. 29 By the statute made Anno 4. & 5. P. & M. St. 4 & 5. P. & M. 4. it was enacted, That all and every person and persons that shall maliciously command, hire, or counsel any person or persons to commit or do any Petit Treason, wilful murder, or to do any robbery in any dwelling house or houses, or to do or commit any robbery in or near any highway in the Realm of England, or in any other the queens Dominions: or to commit or do any robbery in any place within the Marches of England, against Scotland: or wilfully to burn any dwelling house, or any part thereof: or any barn then having corn or grain in the same: then every such offendor and offenders, and every of them, being outlawed of the same, or being thereof arraigned and found guilty by the order of the law, or being otherwise lawfully attainted or convicted of the same offence, or being arraigned thereof, do stand mute of malice or froward mind, or do challenge peremptorily above the number of xx. persons, or will not answer directly to such offence, shall not have the benefit of his or their clergy. Every Lord and Peer of the realm having place and voice in Parliament, upon every indictment for any of the offences aforesaid, shall be tried by his Peers. A man was indicted of the robbery of another in his mansion house, P. 2. Eliz. Dyer 183. he being in his house, and put in fear: And another was indicted, for that he did feloniously before the said robbery procure and counsel the principal to commit the said robbery: in which indictment of the accessory, this word (maliciously) was omitted: Maliciously omitted in the indictment. for the default of which word, this accessory had his clergy, for this word (maliciously) shall have relation to all the aforesaid offences of Petit treason, murder, robbery, and burning of houses. 30 By the before specified Statute of Anno 1. Ed. 6. St. 1. E. 6. 12 Where a Lord of the Parliament shall have the benefit of his Clergy. among other things it is enacted, That in all and every case and cases, where any of the king's subjects shall and may upon his prayer, have the privilege of Clergy, as a Clerk convict that may make purgation: in all those cases, and every of them, and also in all and every case and cases of felony, wherein the privilege or benefit of Clergy is restrained, excepted, or taken away by this Statute (wilful murder and poisoning of malice prepenced only excepted) the Lord and Lords of the Parliament, S, Br. 24. and Peer and peers of the Realm having place and voice in Parliament, shall by virtue of this Act, of common grace, upon his or their requests and prayer, alleging that he is a Lord or Peer of this Realm, claiming the benefit of this Act, though he cannot read, without burning in the hand, loss of inheritance, or corruption of his blood, be adjudged, deemed, taken, and used, for the first time only, to all constructions, intents, and purposes, as a Clerk convict, which may make purgation, without any further or other benefit of Clergy, to any such Lord or Péer from thenceforth, at any time after, for any cause to be allowed, adjudged, or admitted: Any law, custom, statute, or other thing to the contrary notwithstanding. By this Statute a Lord of the Parliament shall have the privilege of his Clergy, where a common person shall not, viz. for the breaking of a house by day or night, or for robbing of any in the highway, and in all other cases excepted in the said statute of Anno 1. Ed. 6. saving in wilful murder and poisoning. But in all other cases wherein Clergy is taken away by any statute made since the said statute of Anno 1. Ed. 6. he is in the same degree that a common and inferior person is. But the Court will not give him the benefit of this statute, if he doth not require it. If a Lord of the Parliament doth confess his offence upon his arraignment, or doth abjure, or is outlawed for felony, it seemeth that in these cases he may have the benefit of this statute, viz. his Clergy: for that by the Statute of 18. Elizab. 6. he nor any other need to make his purgation, but shall be forthwith delivered out of prison by the justices: sed quaere. 31 In all the foresaid cases of wilful murder, breaking of houses, The indictment must beme according to the statute. robbing in or near the highway, buggery, stabbing, and such like, where a man is put out of his Clergy by statute, it is necessary, that in the indictment mention should he made of the offence, in such manner as the same offence is expressed in the statute, P. 9 Eliz. Dyer 261. or otherwise the offendor shall have his Clergy: for if the indictment be only murdravit, without adding ex malitia praecogitata, the party meant to be indicted of wilful murder, shall have his Clergy; and so of all the residue: for his attainder or conviction is upon the matter contained in the appeal or indictment: and if in the appeal or indictment no matter is contained which doth put him out of his Clergy, than it cannot be said that he is attaint or convict of any matter contained in the Statute, which should cause him to lose the benefit thereof. And the judge is to have special regard and consideration, when those words be put into the indictment, that they which do give evidence do prove the same words well and substantially, The words of the indictment to be proved. as well as the principal fact: and if they do not, the judge is to admonish the jury thereof, viz. that there is no proof of those words by the evidence, and that therefore they are not bound to find them, if they do not know them of their own knowledge. Or otherwise for default of good examination, the life and lands of any man may be lost by the malice of another which will put false words in an indictment, that cannot be proved by evidence. When Clergy shallbe demanded. 32 By the ancient law of the Realm, if a Clerk of any order or dignity had been taken for the death of a man, or other felony or offence, and imprisoned, and the Ordinary had demanded him, Bracton. the temporal judge ought to have delivered him presently to the Ordinary, his Official, or to some other by his warrant, without enquiring of him, viz. before his indictment: Not to the intent that the Ordinary should set him at liberty, but keep him in prison until the offendor were purged of his crime: For it was then holden for law, that the King could not keep him in prison, whom he could not judge, neither could he disgrade any of his Clergy, because he could not admit any to his Clergy. But because the Statute of Westminst. 1. St. W. 3. E. 1 doth ordain, That they which be indicted of Felony in the King's Court, by the solemn oath of lawful witnesses, shall be delivered to the Ordinary upon his request, according to the privilege of holy Church, but yet in no manner without due purgation: Fitz. Cor. 233. 386. 417. M. 40. E. 3, 42. Therefore they that came after this Statute, changed the said ancient law, for they would not deliver the prisoner unto the Ordinary, until he was indicted, and also arraigned, and that it was inquired by an inquest of Office, whether he were guilty or not. In which case, if he were found not guilty, they would discharge him: and if he were found guilty, his goods should be forfeited, his lands taken into the King's hands, and his body delivered to the Ordinary. And the cause of changing this law was, that the Ordinary might take greater charge of the prisoner, being now indicted, than before, and to benefit the King by the forfeiture of the prisoners goods, and to breed a greater fear in Clerks after, that they should not offend. Which alteration was observed for law, until the reign of King Henry the sixth, at which time the judges would not admit a prisoner to demand his Clergy upon his arraignment, but put himself first to answer to the Felony, and if he were found guilty of the Felony, at his own suit, then to hear him demand his Clergy, and not before: 3. H. 7. 1. & 12. which is a more reasonable law than the former: for before he should have forfeited his goods upon an inquest of Office, whereunto he could have no challenge: and now he shallbe tried at his own suit, and shall have his challenge to the inquest: and then if he be found guilty, he shall forfeit his goods: and for the saving of his life and his lands, he is to pray his Clergy. Which hath been used ever sithence, and is observed for law at this time, unless the prisoner himself will refuse the benefit thereof, and pray to have his book, without hearing the verdict: As if a prisoner after an inquest is charged upon him, Clergy demanded before verdict. and before their return again, will say that he is a Clerk, and desire his book at his peril: in this case the Court hath allowed him his Clergy, and yet after hath received a verdict, as well in favour of life, as in favour of the King, for if he be found not guilty, the prisoner shall be discharged, and if he be found guilty, the King shall have his goods as forfeit: And the request of his book in that case, is more for the prisoners disadvantage than the Kings, for it may be a mean that the jury understanding thereof, will the rather find him guilty of the felony, than otherwise they would have done. 26. Ass. p. 19 33 If a prisoner do say, that he is no Clerk, Denying to be a Clerk, and yet is. yet after if before judgement he do pray his Clergy (where Clergy is allowable by the law) and then doth read as a Clerk, he shall have his Clergy, notwithstanding his former words. But it hath been a question, Whether clergy is allowable without request. whether the judges ought to allow any man his Clergy without praying of it, though the offendor be indicted by the name of Priest, Fi. Cor. 254 Clerke, etc. or that by some other means the judges themselves do know that he is a Clerk, or that without praying of his Clergy they shall give judgement of death against him. And in this case some do affirm, that if the prisoner doth not pray his Clergy, he shall not have it, though the judge doth upon his own private knowledge understand that he is a Clerk: for the judge must in those cases proceed according to his judicial knowledge, and as by record things be found, proved, and tried before him, and not according to his own natural knowledge, And they be the rather so induced to think by the words of the aforesaid statute of 1. Edw. 6. St. 1. E. 6. 12 which ordained, That a Peer of the Realm shall (upon request) have the benefit of his Clergy, and so infer, that without request he shall not have it, nor any other without request, which is to have it upon request. 34 The temporal Court shall be judge to allow or disallow of Clergy, Who shall allow of clergy. and not the Ordinary: 15. H. 7. 9 for it was entered into the roll of the court, legit ut Clericus, ideo tradatur Ordinario, by which words it doth appear, that the court doth give allowance thereof: for the felony being the act which is committed is temporal, and the judge which did commit him to the Ordinary is temporal, & so is the authority whereby he did commit him. And the Ordinary should have been punished if before the stat. of 18. Eli. St. 18. El. 6. he had let to bail or at liberty any prisoner committed to him, or if he had imprisoned him too straightly, or too easily, or would not have suffered him to have made his purgation: and in that case the king might have sent his Writ unto the Ordinary, commanding him to suffer his prisoner to make his purgation, or might have pardoned him, or set him at liberty, Fitz. Cor. 44. 17 without making his purgation: and if one read as a Clerk, and yet the Ordinary will refuse him, notwithstanding he shall have the benefit of his Clergy: and on the other side, if the Ordinary will say that he doth read as a Clerk, whereas in truth he doth not read as a Clerk, the Court must give judgement that he shall be hanged, and cause execution to be done of him. And further to prove, that the Temporal Court is judge of the reading, the Court doth appoint the verse or place to the prisoner to read, and not the Ordinary: And also doth set a fine upon the Ordinary, 34. H. 6. 49. 21. Ed. 4. 21. 9 E. 4. 28. for saying that the prisoner doth read as a Clerk, where he doth not, which the court could not do, if the reading were referred to the Ordinary. A fellow doth read under the gallows. 35 If a fellow doth not read as a Clerk before the judge at the time of his arraignment, whereupon he is adjudged to be hanged, yet in favour of life, 34. H. 6. 49. if he arraignment, whereupon he is adjudged to be hanged, yet in favour of life, if he do demand it at another time under the gallows if any of the judges do pass that way, and doth read as a Clerk, he shall have the benefit of his Clergy, although there be no Ordinary there to demand him: But this is in case where the fellow is arraigned and judged before the Iust. of the K. Bench; 3. & 4. El. Dy. fo. 205. or else in case where he is arraigned and judged before the Iust. of jail deliucrie, and it is entered by the Court, non legit ut Clericus, and then for some cause he is repried until the next Session, and then again he is demanded if he can read, and then he can and doth read: in this case he shall have his Clergy in favour of life. And though he was taught to read in the jail, this shall save his life, but the gaoler shallbe punished for it. 36 The Court upon the suit of the prisoner may allow him the privilege of his Clergy in the absence of the Ordinary, or without the advice of the Ordinary, or without demanding of the Ordinary, utrum legit ut Clericus an non: 9 E. 4. 28 and so the court need not expect the presence of the Ordinary, if he fail of his attendance: for the court doth use the Ordinary but as a minister in this cause, to confirm their judgement in allowance of Clergy, and to hear his opinion, if the prisoner be worthy of Clergy or not: To what use the Ordinary is employed. Because the manner and order is, for the Ordinary to deliver a book to the Iust. who open it, and assign the verse that the prisoner shall read: and the Ordinary receiving the book of the justices, doth come to the prisoner, and command him to read that verse, which being done, the court doth demand of the Ordinary, utrum legit ut Clericus an non? and the Ordinary doth answer, legit, or non legit: and then the court doth allow that which the Ordinary saith, if it be true, or otherwise not. And moreover the Ordinary was in former times used by the justices to another purpose, viz. to know if the prisoner were within orders or not, which the temporal court could not take knowledge of, for if he were within orders, he should have had the privilege of the church, whether he did read or not, by showing the letters of his orders, or by the Ordinaries certificate, until the stat. of anno 28. H. 8. St. 28. H. 8. 1 was made, by the which it was ordained, That such as be within holy orders, shallbe and stand under the pains and damages for their offences, and be used and ordered to all intents, Clerks within Orders shallbe used as others be. as other persons not being within holy orders shall be. And further, it may be that the offendor hath been a committer of sacrilege, an heretic, or an Apostata, or some other grievous offendor, so that the court hearing the Ordinary willing to refuse him, would also refuse him. What is reading as a Clerk. 37 There is a difference of reading, for it may be that the prisoner may read two or three words of the verse that is assigned unto him by the court, but not the whole verse, which is a kind of reading, 9 Ed. 4. 28. but not such a reading as a Clerk ought to make: for if he will read as a Clerk, he must read the whole verse. But although at the first he beginneth with spelling, and after doth read as a Clerk, yet in favour of life he shallbe allowed for a Clerk, and the form of entry upon request of Clergy, 4. Eliz. Dyer 215. is, Et tradito ei libro, legit ut clericus. 38 Though the Court may give allowance of Clergy in the Ordinaries absence, yet that shall not excuse the Ordinary of his attendance The Ordinaries attendāc● in proper person, or by his deputy, upon pain of a fine to be assessed upon him by the Court: which deputy ought to have and bring with him sufficient letters of the Ordinary, under his seal, testifying the authority which the Ordinary hath given him: 25. E. 3. 40. And though his warrant be but to challenge Clerks arraigned (and not Clerks convicted) yet the warrant is good enough, and shallbe allowed. Contention who is Ordinary. And if two several persons do claim to be Ordinaries, the Court ought not to allow either of them, but must write to the Metropolitan to make certificate who of right aught to be Ordinary. Fi. Cor. 432 39 He that is indicted by the name of a Clerk, A Priest shall have ●o fetters. or appeareth to the judge to be a Priest, shall not upon his arraignment stand at the bar in fetters. And so was the law in ancient time for every prisoner, as Britton Britton. reporteth. 40 Bigamy in times past was a counterplea to clergy, viz. to allege, that he who demandeth the privilege of his clergy, was married to such a woman, at such a place, within such a diocese, and that the said woman died, and that he married another woman in such a place in the same or another diocese, and so he is Bigamus: Or if he hath been but once married, to say, that she which he married was a widow, and before had been the wife of such a man: which allegation should have been tried by the bishop of the diocese where the marriage was alleged to be solemnised: And it being certified by the bishop, that he was Bigamus, the prisoner should have been put from his clergy: Which was by a Constitution made at the Counsel of Lions, as it appeareth by the stat. of Bigamy, made anno 4. Ed. 1. St. 4. Ed. 1. 5. for before that Counsel of Lions, every man that had been twice married, or had married a widow, should have had the privilege of clergy. But that law was sithence altered by the stat. of anno 1. Ed. 6. St. 1. E. 6. 12 whereby it is enacted, Bigamus shall have his Clergy. That if any person or persons by this stat. or by any other stat. or laws of this realm, S. Br. 24. aught to have or to be admitted to the benefit of his or clergy, that the same person or persons shallbe from henceforth admitted and allowed to have his or their clergy, although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow of widows, or to two wives, or more: Any law, statute, or usage, to the contrary notwithstanding. And though, some have affirmed, that the foresaid stat. of 1. Ed. 6. St. 1. Ed. 6. was abrogated by a branch of a stat. made 1. & 2. P. & M. 8. which did repeal all stat. provisions, and articles made against the sea of Rome, since the xx. year of K. H. 8. and the Pope by his decretals brought in the same exception of Bigamy, which was observed and obeyed as a common law, until the said stat. of 1. E. 6. But that foresaid stat. of 1. & 2. P. & M. 8. was also after repealed by the stat. of an. 1. El. 1. for the which and some other causes, it is agreed and holden for law, 3. Eliz. Dyer fol. 201. that the before rehearsed stat. of 1. Ed. 6. doth stand and remain in force, and Bigamus shall have his Clergy. 41 It is a good counterplea to him who demandeth his Clergy, to say, Another time convict. that he had another time the benefit of his Clergy, when he was arraigned of another felony, and show the certainty thereof, when and where he was arraigned, and had his Clergy, to demand judgement if he shall have his Clergy again: Which counterplea was ordained by the statute of Anno 4. H. 7. St. 4. H. 7. 13 for by the common law, if a man had once enjoyed the benefit of his Clergy for felony, and after committed felony again, yet he should have had the privilege of his Clergy again, and so often as he had committed felony, until the said statute did restrain him by these words: viz. Where upon trust of the privilege of the church, divers persons have been the more bold to commit murder, rape, robbery, theft, and all other mischievous deeds, because they have been continually admitted to the benefit of their clergy, as oft as they did offend in any of the premises: In avoidance of such presumptuous boldness, it is ordained, That every person (not being within orders) which once hath been admitted to the benefit of his Clergy eftsoons arraigned of any such offences, be not admitted to have the benefit or privilege of his clergy: and that every such person so convicted for murder, How the convict shallbe marked. to be marked with an M. upon the brawn of the left thumb, & if it be for felony, the same person to be marked with a T. in the same place of the thumb: & these marks to be made by the gaoler openly in the court before the judge, before such person be delivered to the Ordinary. Provided always, if any person at the second time of ask his clergy, because he is within orders, hath not there ready his letters of his orders, or a certificate of his Ordinary witnessing the same, that then the justices before whom he is so arraigned, shall give him a day by their discretion, to bring in his said letters or certificate. And if he fail, and bring not in at such a day his said letters, nor certificate, than the same person to lose the benefit of his clergy, as he shall do that is without orders. By which stat. it doth appear, that he that is within orders is excepted, and that he may have his clergy the second time, upon the showing of his letters of orders, or his Ordinaries certificate of the same, this statute notwithstanding. But after by the statute made Anno 28. H. 8. & 32. H. 8. St. 28. H. 8. 1 & 32. H. 8. 3 it was enacted, How offenders that be within orders shallbe used. That all such persons as be, or shall be within holy orders, which by the laws of this Realm ought or may have their clergy for any felonies, and shallbe admitted to the same, shallbe burned in the hand, in like manner and form as lay Clerks been accustomed in such cases, and shall suffer and incur after, all such pains, damages, and forfeitures, and be ordered and used for their offences of felony, to all intents and purposes, as lay persons admitted to their clergy, be, or aught to be ordered and used by the laws and statutes of this Realm: Any laws, statutes, provisions, customs, etc. notwithstanding. The force and effect of part of which said statutes of 28. H. 8. & 32. H. 8. is in some sort attenuated by a branch of the stat. of Anno 1. Ed. 6. St. 1. E. 6. 12 S. Br. 24. (as some do conceive it) which doth ordain, That in all other cases (saving such as be mentioned in the said Act) all and singular person & persons, which shall be arraigned, or found guilty upon his or their arraignment, or should confess the same, or stand mute, or would not answer directly, should have and enjoy the privilege and benefit of his and their clergy, the liberty and privilege of Sanctuary, in like manner and form, as he or they might or should have done before the four and twentieth day of April, Anno 1. H. 8. at which time a man within orders should have had the privilege of his clergy several times: And by this Statute he shall not be burned in the hand as a lay man shall. But yet in all those cases wherein a man is put out of his Clergy, by the Statute of Anno 1. Ed. 6. and also in all other cases wherein Clergy is taken away by any Statute made since Anno primo Edw. 6. a man within orders is as well put out of his Clergy, as a lay man, every of those Statutes being general and without exception. 42 Because divers persons have been in times past indicted, arraigned, and some of them Clerks convict, and some of them Clerks attainted, and some of them outlawed for Murder, Burglary, Robbery, and other Felonies, before justices of Peace, justices of jail delivery, and justices of Oyer and Terminer, within divers, Cities, Counties, Franchises and Liberties within this Realm: The records of which attainders, outlawries, and convictions, many times by the negligence of the Clerk of the Crown, Clerk of the Peace, Clerk of Assize, and such other as have had the order, rule, keeping, and governance of the same Records, have been imbecile, and not ready to be objected against such persons as have been newly arraigned before the King in his Bench, or before other the King's justices, for the like and such other offences by them committed or done: And for that it hath not been known certainly, whither to resort for the same Records, because they were not certified into any place certain, by reason whereof sometimes such persons and like offenders, which have been newly arraigned, as is aforesaid, have had the benefit of his or their Clergy, where they ought not, ne should have had the same, if the said Records had been then present in the same place where such person or persons were so newly arraigned, or else certified into some other place certain, where the same Records might have been seen, sent for, or written for, to have been objected against such person or persons so newly arraigned, whereby as well the King, as also all other persons, have many times lost their Escheats, and other advantages and forfeitures, that they should have had by mean of the said attainders, to the great losses of the King and other persons: and also the said offenders have had their Clergy, where they ought not to have had, to the great boldness and encouragement of like offenders: For the reformation whereof by a Statute made Anno 34. & 35. H. 8. St. 34. & 35. H. 8. 14. it was enacted, That the Clerk of the Crown, Certificate into the K. bench of outlawries, attainders, & convictions. Clerk of the Peace, and Clerks of Assize for the time being, where any such attainder, outlawry, or conviction shall so be had, shall not only certify a Transcript briefly and in few words, containing the tenor and effect of every such indictment, outlawry, or conviction, and Clerk attainted, before them so to be had, made, or pronounced, that is to say, the name, surname, and addition of every such person and persons, as shall be so indicted, and thereupon outlawed, convicted, or Clerk attainted: and the certainty of the said felony, or other offence, whereupon he or they shallbe so outlawed, convicted, or Clerk attainted, and the day and place of his outlawry, conviction, and attainder, and the day and place where and when the said felony or other offence whereupon the said person or persons shallbe so indicted, outlawed, or Clerk attainted, shall be made and done, before the K. in his bench at West. in the county of Midd. there to remain of record for ever, among other the K. records there, within xl. days next after any such attainder, conviction, or outlawry shall be had, made, or procured (if the term be then) & if not, within xx. days next after the beginning of the term next following the said xl. days, but also shall deliver a transcript of every such indictment, whereupon the said person & persons shall fortune hereafter so to be convicted, or Clerks attainted, to the Ordinary, to whom the body of the said person or persons shall be committed, at the time that the said person or persons shall be committed, the said Ordinary paying to every such Clerk as shall write the said Transcript, for every copy of such indictment, twelve pence for his pains, upon pain that every Clerk of the Crown, Clerk of the peace, and Clerk of Assize for the time being, before whom such Indictment, Attainder, Outlary, or Conviction shallbe so had, made, pronounced, or remain, for the non-certifying of every such record, and delivering of the copy of such Indictment to the said Ordinaries, according to this statute, to lose and forfeit forty shillings, the one moiety thereof to be to the king, and the other moiety to him that will sue for the same, by action of Debt, Bill, Information, or otherwise, in any of the king's Courts of Record, wherein no Wager of Law, essoin, or Protection shallbe allowed: and the clerk of the Crown in the king's Bench shall receive the said certificates and transcripts at such time as they shall be tendered and proffered unto them by the said clerks of the Crown, clerks of the peace, and clerks of assize, or by their deputy or deputies, without taking any thing for the same, upon pain of forfeiture of forty shillings for every such certificate by him refused. Provided always, that if there be any more persons contained and named in any such Indictment other than such person so attainted, convicted, or outlawed, that then such clerk of the crown, clerk of assize, or clerk of peace, with whom the record of such attainder, outlary, or conviction shall remain, shall within the time before in this act limited certify the transcript of such indictment, outlarie, or conviction only concerning such person or persons so indicted and attainted, outlawed, or convicted into the king's Bench at Westminster, as is aforesaid: which transcript so certified shall be had and taken as good, effectual, and available in the Law, to all intents and purposes, against such person and persons, against whom it shall be so objected, alleged, or pleaded, as if the very record thereof, whereupon he or they were so indicted, were there present. And be it enacted etc. That the said clerk of the crown in the king's Bench, for the time being, shall at all such times as the justices of jail Delivery or justices of Peace in every County within this Realm of England do write unto him for the names of such persons, which be so attainted by Outlarie, or clerks attainted or convicted, and certified into the said Bench, shall incontinently without delay certify the said names and surnames of the said persons, with the causes why and wherefore they were convict or attainted, unto the justices of jail delivery, or justices of Peace, upon pain and penalty to forfeit for every name of such persons which shall be so written for, and not certified by the said Clerk of the Crown in the King's Bench to the said justices, forty shillings. Provided, that this Act, nor any thing therein contained, shall not extend to the Clerks of the Crown, Clerks of the Peace, Clerks of jail delivery, neither to any of the Prenotaries within the Counties of Wales and Chester, or within the Counties Palantine of Lancaster and Duresme, or any of them, to make any transcript of any such attainder, conviction, or outlawry of any person or persons convicted, attainted, or outlawed, before the King's justices of his Counties of Wales nor Chester, or County of Lancaster, Duresme, or any of them, but that the same Records shall and may remain and be in the custody and keeping of the said Clerks and Prenotaries, in such manner and wise as they are at this day: this Act or any thing therein contained to the contrary notwithstanding. 43 Though the delivering of him to the Ordinary who hath the benefit of his Clergy, and making of purgation, be taken away the Statute of 18. Eliz. 6. yet because both delivering to the Ordinary, and making of purgation were used by the space of many generations in this realm, and several laws, statutes, and some provincial councils were made and ordained, touching the ordering, direction, and governance of those which as Clerks convict or attaint were committed to the Ordinary, and were to make purgation, or not: I will therefore briefly set down the effect of some of those laws, as antiquity did retain them. He which had the privilege of his Clergy, and was delivered to the Ordinary that did demand him, was not set at liberty, to go wandering up and down the Country, but was safely and straightly kept in the bishops prison, In what sort a clerk delivered to the Ordinary was used. having for food upon the Sunday bread, ale, and pease, and upon all the other days, courser bread, and small drink once in the day only (or in the King's prison, if the Bishop would have it so) until he had purged himself of the crime wherewith he was charged, or otherwise had failed of his purgation and could not make it. And if the Bishop would not admit him to make his purgation, than the King would direct his writ to the Bishop, commanding him to suffer the same prisoner to make his purgation: 15. H. 7. 19 or the King at his pleasure might pardon the prisoner, or cause him to be set at liberty without making any purgation. And when a Clerk was to make his purgation, the King was to be made privy thereunto, who did direct his Writ to the Sheriff of the county where the offendor was prisoner, commanding him to make proclamation through his County, that if any man could show cause why such an offendor, viz. A. B. prisoner in the Kings or bishops prison should not make his purgation, that then he should appear such a day, and in such a place, and show the same cause. And in London the Preacher at Paul's Cross did likewise notify, that A. B. The manner of making purgation. prisoner in such a prison was to make his purgation in such a Diocese, at such a place, upon such a day: at which day assigned, whether any crime or not; to give evidence against him, they used to bring forth the prisoner, and to arraign him of the principal fact, and if he pleaded or said that he was not guilty thereunto, than an inquest of Clerks was charged. And if by the said inquest of Clerks he was found not guilty of the same offence, than he was set at liberty: and if he were found guilty, he was disgraded. There be two sorts of Clerks, whereof the one is a Clerk convict, and the other is a Clerk attainted. A Clerk convict A Clerk convict. is he who prayeth his Clergy before judgement be given against him of death, and hath his Clergy allowed unto him: such a Clerk before the Statute of 18. Elizab. might have made his purgation, saving in certain especial cases. As a common thief could not make his purgation, Fi. Cor. 247 notwithstanding that he were but a Clerk convict: for it is better for the common wealth to have such an incorrigible person continually to remain in prison than to go at liberty to do more hurt. Fi. Cor. 417 And likewise, a Monk that was a Clerk convict, should have been delivered to his Abbot, to have remained in the Abbey continually, without making his purgation. Fi. Cor. 109 147. And also in an appeal, if the Defendant had been convict by verdict, and had enjoyed his Clergy as a Clerk convict, he should not have made his purgation: for if he had made his purgation, than the Plaintiff in the appeal should have recovered his goods without cause, for that by the purgation it doth appear that he was not guilty of the felony. A Clerk attainted Clerk attainted. is he who prayeth his Clergy after judgement of felony given of him: Such a Clerk could not have made his purgation, for that when he was condemned of felony by judgement, he could not contrary to that judgement be purged thereof; that judgement remaining in force: and therefore there was none other remedy for him, but to purchase the King's pardon, or else he must have remained in prison during his life. And whether this judgement of death did follow either upon Confession before the Coroner, Clergy after Confession. upon abjuration, or before the justices upon his arraignment, or upon trial by verdict of twelve men, if this judgement were once given, he should not after make his purgation. And though, after his confession of the felony, and before judgement given against him thereupon, he doth pray his Clergy, he shall have it, and might have made his purgation: for that the confession being before a secular judge, who is not his judge, is void. And for that cause the statute of Articuli Cleri cap. 16. doth ground, St. 9 E. 2. 16 That an approver Approver. shall have the benefit of his Clergy: and yet he hath confessed his offence before a secular judge. And it is not to be interpreted that the benefit of this Statute is to be extended only to save the approvers life, and not to set him at liberty by making his purgation, for than he should have but part of the benefit of Clergy, and not the whole which is contrary to the said Statute of Articuli Cleri: If an approver had waived his appeal, & holden him to his Clergy; he should have made his purgation, Fi. Cor. 128 because the Temporal court doth dismiss him, as a man in whom it hath no jurisdiction: which waiver of the appeal did not waive the confession that he had made before. 27. H. 6. 7 13. E. 4. 3 Fi. Cor. 56 247 And though an approver in some Cases should not have made his purgation, yet that was in such cases only, where he did not pray his Clergy until judgement was given against him of felony. If one that shall abjure the Realm for felony, had come again into the Realm without the King's licence, whereupon he was taken and brought to the Bar, and that it was demanded of him, why he should not be put to death, and he had demanded his Clergy, and that was allowed: yet he should not have been delivered to the Ordinary, but sent to prison again, Fi. Cor. 155 until he had obtained the King's pardon. For Clergy would have served him for the felony, but not to excuse the contempt which he made by coming again into the Realm without the King's licence: But it had been otherwise if he had prayed his Clergy at the time when he fled to the Church. By the entry into the Roll of the Court which made mention of the prisoners delivery to the Ordinary, In whom rested the making of purgation. it appeareth, that the making, or not making of purgation did rest much in the Temporal Court, and not in the Ordinary: for if he were not to make his purgation, than the entry was, Quod talis commissus est Ordinaria absque purgatione facienda: and if he were to make his purgation, than the words, Absque purgatione facienda were omitted: and in all cases where the Temporal court had determined that purgation did not lie (as in the case of Clerk attaint, or such like) if the Ordinary had admitted the prisoner to have made purgation, and thereby set him at liberty, Escape for suffering purgation. he should have been charged with an escape: for the authority whereby he was committed to prison, was temporal, and he received him from the temporal court, or otherwise the Ordinary could not have retained him in prison. And therefore the temporal court had somewhat to do with setting him at liberty out of prison. If one had been convicted of diverse felonies, and had been admitted to his Clergy, in that case he ought to have made purgation for them all. But the force of the foresaid Laws, Fi. Cor. 232 touching committing of clerks to the Ordinary, and making of purgation is altered by the before mentioned statute of Anno 18. Eliz. St. 18. El. 6 whereby it was enacted, That every person and persons which shall be admitted and allowed to have the benefit or privilege of his or their Clergy, shall not thereupon be delivered to the Ordinary, as hath been accustomed, but after such Clergy allowed and burning in the hand, St. 4. H. 7. 13 according to the statute in that behalf provided, shall forthwith be enlarged & delivered out of prison by the justices before whom such Clergy shall be granted, that cause notwithstanding. Clergy allowed without delivery to the Ordinary. Provided nevertheless, that the justices before whom any such allowance of Clergy shall be had, shall and may for the further correction of such persons to whom Clergy shall be allowed, detain and keep them in prison, for such convenient time, as the same justices in their discretions shall think convenient, so as the same do not exceed one years imprisonment: Any law or usage heretofore had to the contrary in any wise notwithstanding. ❧ The King's Pardon. THe King's Pardon is a bar to an Indictment of treason or felony: which granting of Pardon is one of the most ancient and honourable prerogatives that is annexed to the Imperial Crown of this Realm, being an authority in a sort to revive a dead man, and to continue him in life, whom the Law adjudged to die. And it is only granted upon a good hope that the king hath of the amendment of the life of that subject, who hath offended his laws, and whose crime his own conscience doth assure him that he may pardon, notwithstanding his oath taken at his coronation, (which oath is, that he will to the uttermost of his power, cause equal and right justice to be done in all judgements, and discretion in mercy and truth:) for as Bracton Bracton saith: The King at his coronation, The King's oath at his coronation by an oath taken in the name of jesus Christ the son of God, aught to promise his subjects three things: The first, that he will command, and do his whole endeavour during his reign, that true peace may be performed to the Church of God, and all his people: The second, that he will by all means restrain every kind of rapine and oppression: The third, that in all judgements he will command justice and mercy to be observed, that by his merciful dealing with others, the God of mercy may take commiseration upon him, and that by his justice all his people may enjoy peace. 2 Because authority to remit and pardon Treasons, Murders, Manslaughters and other felonies, with divers others of the most ancient prerogatives, and authorities of justice, appertaining to the imperial Crown of this Realm, were severed and taken from the said Crown, by sundry gifts of the Kings of this Realm, to the great diminution and detriment of the royal estate of the same, and to the hindrance and delay of justify: For reformation whereof, by a statute made Anno 27. H. 8. St. 27. H. 8. 25. it was enacted, That no person or persons, of what estate or degree soever they be, shall have any power or authority to pardon or remit any treasons, None but the king shall pardon treasons, felonies, etc. murders, manslaughters or felonies whatsoever they be: nor any accessories to any treasons, murders, manslaughters, or felonies: or any outlawries for any such offences aforesaid, committed, done, or divulged, by, or against any person or persons in any parts of this Realm, or Wales, or the Marches of the same. But that the King his heirs and successors kings of this Realm, shall have the whole and sole power and authority thereof united and knit to the imperial crown of this realm, as of good right and equity it appertaineth: any grants, usages, Acts of parliament, or any other thing to the contrary notwithstanding. 3 But because the Kings of this Realm have not had that circumspection in granting of pardons, which Bracton doth think fit, and have been many times deceived in their grants by false suggestions: and for that offenders in times past were greatly encouraged, and less feared to offend, in respect that pardons of manslaughters, robberies, felonies, and other trespasses against the Peace, were so easily granted: For the redress whereof, by a statute made Anno 2. Ed. 3. St. 2. Ed. 3. 2 it was ordained, In which cases only the K. may grant pardon of felony, etc. That no such charters should be granted, but where the King may do it by his oath, that is to say, in case where a man doth kill an other in his own defence, or by misfortune: which laid Statute was after rehearsed and confirmed by an other Statute made Anno 4. Ed. 3. St. 4. E. 3. 13 And also by another Statute made Anno 14. Ed. 3. St. 14. Ed. 3. 10. the effect of the same was rehearsed and confirmed, and it was moreover ordained, That if any charter of pardon were from thenceforth granted contrary to the purport of the said Statutes, that then the same should be accounted as void. 4 And though there be words large enough in the foresaid Statutes to make frustrate all those charters of pardon, which be granted against the form of the same Statutes: Non obstante in a pardon. yet by putting into the Charters of pardon these words, viz. Non obstante aliquo statuto, actu, ordinatione in contrarium edito, the force of those Statutes be clean taken away, and not only of those, but also of all other in which this clause of Non obstante is inserted: for it is a dispensation of the Statute, and commonly put in every Letters patents. But because the Kings of this Realm, were oft times deceived in granting of charters of pardon, by the false and untrue suggestion of others: Therefore, to avoid those abuses, by a Statute made Anno 27. Ed. 3. St. 27. E. 3. 2 it was accorded, That in every charter of pardon of felony, The suggestion comprised in the pardon. which shall be granted at the suggestion of any person; the suggestion, and the name of him that maketh it, shall be comprised in the same charter. And if after the suggestion be found untrue, the Charter shall be disallowed, and accounted nothing worth: And the justices before whom such Charters shall be alleged, shall inquire of the same suggestions, and if they find them untrue, they shall disallow the Charters, and proceed further as the Law requireth. 5 Because the Commons did complain in Parliament of the outrages, mischiefs, and damages which did come to the Realm, by treasons, murders, & ravishments of women commonly done & committed, and the rather, for that charters of pardon were too easily granted thereof: and did desire the King, that such charters of pardon might no more be granted in those Cases. Whereunto the K. did answer, that he would yield to their petition, saving the prerogative, and regal authority, which his progenitors before that time had: And to the intent that the King would be certainly informed before, of what offences he did grant pardon; Therefore by a Statute made Anno 13. R. 2. St. 13. R. 1. 1 Stat. 2. the King did grant with the assent of the Parliament, That no Charter of pardon shall be allowed before any justice for murder, The offences shallbe specified in the pardon. for the death of a man slain by await, assault, or malice prepensed, treason, or rape of a woman, unless the same murder, death of a man slain by await, assault, or malice prepensed, treason, or rape of a woman be specified in the same Charter. And if a Charter of the death of a man be alleged before any justice, in which Charter it is not specified, that he of whose death any such is arraigned, was murdered or slain by await, assault, or malice prepensed, the same justices shall inquire by a good inquest of the visne where the dead was slain, if he were murdered, or slain by await, assault, or malice prepensed. And if they shall find, that he was murdered or slain by await, assault, or malice prepensed, the charter shallbe disallowed, and further therein shallbe done as the Law requireth: which said stat. was after confirmed by the statute of Anno 16. R. 2. St. 16. R. 2. 6 1. Ed. 3. 24 And therefore, whereas, if a man before this Statute, had counterfeited the King's great or privy Seal, and the King had pardoned him all felonies, homicides, robberies, and other trespasses; by the common Law his pardon should have been allowed, and he discharged, which since would not be allowed, unless the treason were specified in the charter of pardon. 6 For that many common and notorious thieves indicted of several felonies, murders, and rapes in divers countries, and upon the same, as well before the King's justices, as before the King himself, being arraigned of the same felonies, for the saving of their lives, did in times past become approvers, to the intent, that in the mean time by Brocage, and great gifts bestowed upon certain persons, they might purchase and obtain their charters of pardon: and then after their deliverance became more notorious thieves, than they were before: for the redress whereof, and to the intent to punish him with discredit and forfeiture who pursueth such a charter, there was a statute made Anno 5. H. 4. St. 5. H. 4. 2 which doth ordain, Suit for an Approvers pardon. That if any man or woman do desire or pursue, or cause to be requested or pursued for any charter of pardon, for any fellow arraigned of felony, murder, or rape, which for the safeguard of his life doth become an approver: then the name of him or her which pursueth such charter, shallbe put in the same charter, making mention that the same charter is granted at his request and instance. And if he to whom the charter is granted, after his deliverance becometh a fellow, the same person who pursued for his charter, shall forfeit a hundred pounds, to be levied to the King's use. Pardon of the felony, but not of the attainder 7 If a man be attainted of felony, 9 Ed. 4. 28. 11. H. 4. 15 46. Fi. Cor. 124 S. Abjuration 15 and the King doth pardon him all feloni●s, this is not sufficient, neither will it avail him, because in the charter there is no pardon of the attainder. As one abjured the Realm for the death of a man, and returned again without the King's licence, and being brought to the bar, he pleaded the king's pardon, and because it made no mention of his a●iuca●ion, which was his attainder, it was disallowed. If the King do by Act of parliament grant a general pardon of all felonies, except burglary, Co. l. 6. 13 and an offendor is attainted of burglary, he shall have no benefit of this pardon: for the offence of burglary doth remain notwithstanding the attainder thereof. 〈…〉 8 If a man commit felony, and is attainted thereof, 8. H. 4. 22. Co. li. 6. 13 if the King do pardon him the attainder, and the execution, this will not avail him, because the felony doth yet remain unpardoned. 22. Ed. 4. 7 28 & 29 H. 8. Dyer f. 34 9 If the king do pardon two, three, A joint pardon to two or three or more men, all felonies by them, or any of them committed, this will not avail them, because felony is always several: & though the sequel of the Charter be several, yet it shall not make that which in the beginning of the Charter was joint, to be several: But it is otherwise if the beginning of the Charter had been several, & the sequel joint. 3. H. 7. 15 10 If the King grant to a man, Grant to be quit of escapes of felons. that he shallbe quit of the escape of prisoners out of his prison, being there for felony, or Treason: yet this will not discharge him of voluntary escape, but only of negligent escape: for voluntary escape is felony, and the King cannot licence a man to commit felony, but he ought to restrain him of the doing thereof. 11. H. 4. 41. 11 Every prisoner shall take advantage of a general pardon granted by Act of Parliament, A general pardon by Parliament. without pleading of it. And the court shall give him the advantage thereof, though he doth waive and refuse the benefit of the same Act: but that is to be intended, where the act is general, without any exception: For if there be any persons excepted in the same pardon granted by Act of Parliament, 8. E. 4. 7 Pl. come. 401 than he ought to plead, that he is not any of those which is excepted, and that he was not adherent to E. and so must plead to every point and thing excepted in the said Act of Parliament, to the intent to prove himself enabled to enjoy the benefit of the said pardon: (unless in the said Act of Parliament there be mention made, that every person may take advantage of it, without pleading of it:) And if he that doth plead that pardon be of the same name that any of those is, which is excepted in the pardon, he then must in pleading declare the same, and show that he is another man, and not he which is excepted in the pardon: or otherwise he shall come too late to plead it after. And if he plead it before the justices in the country, where the King's attorney is not present, the justices shall cause proclamation to be made, that if any will speak for the King, let him come forth, etc. 12 The party whom it doth concern ought not only to plead the Kings pardon granted unto him by his Charter, without Parliament, but he must also show it under Seal, The King's pardon must be shenwed under seal for that the custody thereof belongeth only to him, and to none other: And therefore though he will say that he was at another time arraigned of the same felony, at the King's suit, in such a county, where he pleaded the said Charter, H. 11. H. 4. 41. and that was allowed, which allowance is of Record: yet that is no good plea without showing the Charter. But the court of favour will respite the party that pleadeth it, to bring in the Charter at the day assigned. 13 When a man doth plead the King's pardon of any homicide, robbery, A writ of allowance of the King's pardon felony, or other trespass, he ought also to bring with him a writ of allowance, testifying that he hath found surety, according to the Statute of ann 10. Ed. 3. St. 10. E. 3. 3 which hath established, That if the King do grant to any person any Charter of pardon of any homicide, robbery, or felony, than he to whom the same is granted shall come within three months next after the making of the same, before the Sheriff and Coroners of the County where the felony was done, and shall find six good and sufficient mainpernors, for whom the said sheriff and Coroners will answer, He that hath a pardon shall find sureties for his good abearing that he from thenceforth shall bear himself well and lawfully. And the maineprises shallbe sealed, and returned into the chancery, within three months after the end of the said three months. And if he which hath such Charter will aid himself thereby, and hath not found such mainprises, or after such mainprize found, doth bear himself otherwise against the peace, than he ought, his charter shallbe accounted void, & of no force. The good behaviour broken after a pardon. 14 A prisoner that was indicted & outlawed of felony, 3. H. 7. 7. pleadeth the King's pardon of the same felony and outlawry, but showed no writ of allowance, testifying that he had found surety in the Chancery according to the foresaid Statute of 10. Ed. 3. neither did he make mention in his plea, that he had found surety according to that Statute: nor yet did he vouch the Record thereof in the Chancery: therefore the justices had no cause to allow of his Charter of pardon. And the same offendor after his pardon granted was indicted before the justices of peace of the county where he dwelled, that he did beat and wound A.B. against the King's peace, and thereof was convict before the same justices of peace, by his own confession, which Record of his conviction was sent into the King's Bench by the said justices of peace: and for that he had borne himself otherwise than he ought toward the peace, his charter of pardon was anulled, he had judgement of death, and was hanged. A pardon must agree with the indictment 15 A Charter of pardon ought to agree with the Indictment, in the name, surname, and addition of the party, to whom the same Charter is granted, to the intent, that he may be known to be the same person which is indicted: or otherwise it is not allowable, saving in some special cases: As, 11. H. 4. 3● in appeal of death, where the plaintiff was nonsuit after declaration, and the defendant was arraigned at the King's suit upon the declaration, whereunto he pleaded the King's pardon, which did not agree with the appeal, in the name of him that was slain, Where a charter may vary from the indictment nor in the day, but agreed with the indictment in the death of the self same man, to the which indictment this pardon had before time been pleaded and allowed. And for that it may well be intended of the same death, seeing one man cannot have two deaths, it was allowed, notwithstanding the variance. Two men were outlawed in appeal of murder, 28. & 29. H. 8. Dy. 34. and they purchased their pardon, and had a Scire facias against the Plaintiff in the appeal, and also a Scire facias against the Lords mediate or immediate, and the pardon did not agree with the indictment in the additions, but the parties took an averment, that they were the same parties which were indicted: and an exception was taken to the pardon, for the words of the pardon were, Pardonavimus etc. W.B. & L.B. omnes & omnimodas utlagarias versus praefatos W.B. & L. B. seu versus eorum alterum promulgatas: which words in the premises of the pardon be joint, where they should have been Pardonavimus etc. W.B. & L.B. & eorum alteri, because that every felony is several, and for these several felonies they should have had several pardons: And yet the pardon was allowed. If a man be indicted of felony by the name of A.B. yeoman, and after the King doth pardon him by the name of A. B. gentleman, esquire, 20. H. 7. Kel. fol. 58. knight, or etc. all manner of felonies; he may plead this pardon, and aver that A. B. yeoman, and A. B. gentleman, or etc. be one person, and this pardon will discharge him: for it may be he was a yeoman at the time of the indictment, and after made gentleman by the King, or by some office. 4. E. 4. 10 16 When after nonsuit in appeal the King's pardon is allowed, it is used to enter the pardon and allowance upon the bill of appeal: The pardon and allowance entered upon the appeal. and therefore if there be any indictment of the same felony against the defendant, it shallbe good for him to cause these words to be entered and endorsed upon the indictment, viz. Cesset processus faciendus super indictamentum, eo quod defendens acquietatus recessit ab Appello. 4. Ed. 4. 10 17 All this matter of pardons is (in effect) to be referred to indictments, because the King's pardon is no plea to the parties appeal, A pardon no plea to an appeal. for the fellow shallbe put to death notwithstanding that: But it is a good plea against the King, when the appeal is determined. And if it be determined by act in law, and not by the act of the party, the pardon shall not be allowed without warning of the party: as in appeal, the plaintiff doth pursue it, until he hath outlawed the defendant, in this case by the Outlawry the appeal is determined: and yet if the king do pardon the defendant, the pardon shall not be allowed, until he hath sued a Scire facias against the party, at whose suit he was outlawed: And if at the day of the Scire facias returned, the party do appear, the Appellant may pray execution of him, notwithstanding the pardon: but if the Appellant be returned warned, and doth make default, the Charter shallbe allowed without further suit. Co. l. 50. & 100 3. El. Dyer 201 261 The King's pardon of burning in the hand. In an appeal of murder the defendant pleaded not guilty upon his arraignment, and by the inquest was found guilty of manslaughter, and then prayed, and had his Clergy: Whereupon by force of the Statute of ann 4. H. 7. 13. St. 4. H. 7. 13 he being a convict person, aught to be marked by the Gaoler openly in the Court: which marking or burning in the hand the king did and may pardon, though it be in an appeal; for burning in the hand is no part of the judgement, but only a mean to notify to the judge, upon an offenders second conviction, that he once before had his Clergy upon a former conviction. And for that it was ordained by the Statute of ann 18. El. 6. St. 18. El. 6 That after Clergy allowed, and burning in the hand, the prisoner shall be forthwith enlarged, and delivered out of prison: which act doth extend as well to the case of the Appeal, as to the case of an Indictment: Therefore the King having pardon the burning in the hand, the party was also discharged of his imprisonment. 2. R. 3. 8 18 A Scire facias upon a Charter of pardon may be granted against an appellant, Upon a pardon, a Scire facias against an appellant. though the appellee, which doth pray it, showeth not any release of the appellants made unto him, or any such other matter in discharge of the appeal; for he shall come time enough to show that, when the appellant doth appear upon the Scire facias. And the appellee may have a Scire facias against the appellant, though in the Charter there be not this clause, viz. ita quod stet rectus in curia. Fi. Char. 17 19 An appeal was brought against a principal and accessory, Non-sute doth not aid an appellee that is outlawed. the principal was pursued to an outlawry; whereupon an Exigent was awarded against the Accessory, returnable at a certain day, at which day the Plaintiff was Nonsuit in his Appeal, and then the Principal came with a Charter of Pardon, and prayed allowance thereof, for that the plaintiff was Non-suite, which would not be granted by the Court, for that the nonsuit did not aid him, seeing the appeal was determined before against him by the outlawry. 20 A man being arraigned of felony pleaded not guilty, 8. Ed. 4. 29 and being demanded how he would be tried, he showed forth the King's protection, The King's protection. and said that the same was a sufficient discharge for him, and would make none other answer: whereupon the justices agreed, that he should be put to his penance, viz. to his pain for't, & dure. And yet at another time, Fi. Cor. 239 one being found guilty of felony, showed the King's Charter, which did not contain any pardon, but only that the King had retained him to go with him into Gascoigne, & that was allowed, and the justices did surcease to proceed any further against him. Pardon of a felony before it was committed. 21 A. was indicted for that he did the 13. day of February, Plo. come. 401. ann 13. Regin̄ Eliz. strike B. whereof the said B. died the 18. day of june than next following. A. upon his arraignment pleaded the general pardon by Parliament, by which all felonies, offences, misdemeanours etc. in the act not excepted, which might be pardoned, before, and until the 14. day of February were pardoned, released, and discharged against the Queen: and averred, that neither he, nor the said offence were excepted in the said pardon, and prayed to be discharged. And he was discharged by the said pardon, for that the wound given by the prisoner was the cause of the felony, the giving of which wound was an offence & misdemeanour against the Crown, the which was pardoned by the Act of Parliament, and by that means all acts ensuing upon the same offence were pardoned. ❧ Standing mute, or answering indirectly. AT some time he that is arraigned of felony is so far both from making confession of the felony whereof he is indicted, and also of pleading not guilty thereunto, that he will make no answer at all, but stand mute of malice, and evil will: or otherwise plead such matter which is no answer to the felony whereof he is arraigned, or such a perverse plea, which is no direct answer to the offence whereof he is indicted: Stand mute, or not answering directly. Or if he do answer to the offence, yet he will so conclude his plea, that the same plea can have no trial: Fi. Cor. 233 283, 359 4. Ed. 4. 11 Kel, fol. 70. In all which cases he shall be put to his penance for contemning the law, and refusing of the ordinary trial devised by the law, that is to say, he shall be put to pain grievous, and durable, otherwise termed, to pain fort & dure, and as it is commonly termed, he shallbe pressed to death. Which pain is called grievous, for that it is so heavy and weighty that he is not able to endure it: and it is called durable, because the offendor shall never have ease or relief of it, but shall die in it. 2 The pain grievous and durable was not at the common law, but Felons refusing lawful trial. ordained by the Statute of Westminst. 1. made ann 3. Ed. 1. St. 3. E. 1. 12 whereby it was enacted, That notorious felons openly known of evil name, who will not put themselves upon inquests of felonies which men do prosecute before the justices at the King's suit, shallbe put in hard and strong prison, as they which refuse to be tried by the law of the Realm: But this is not to be intended of prisoners which be taken for light suspicion. By which Statute it doth appear, that none shallbe adjudged to this pain, if there be not evident or very probable matter to convince him of the offence whereof he is arraigned, or otherwise that he is a notable thief, or openly known to be of an evil name: which the judge ought strictly to examine before he proceed to judgement against him. ●●nnance on●● upon an indictment, and not upon an appeal. 3 The judgement of penance is only to be given when a prisoner is arraigned at the King's suit, and not where he is arraigned at the party's suit: 21. Ed. 3. 18 for the words of the Statute be (and will not put themselves upon inquests of felonies which men do prosecute before the justices at the King's suit:) and therefore in an appeal prosecuted at the suit of the party, the judgement of penance, viz. of pain grievous & durable, shall not be given, but another judgement, that is to say, that the offendor shallbe hanged. And an offendor shall have this judgement of penance at the K. suit, 40. Ass. p. 40 although that suit be begun before his due time, viz. within the year after the offence committed, where the king ought to have tarried until the years end for the interest of the party, who was to pursue his appeal within the year. Penance for piracy. 4 If a man be indicted and arraigned before Commissioners to hear and determine, for piracy and Robbery committed upon the sea, 7. El. Dyer 242. and he will stand mute, and not answer directly, he shall have judgement of penance, viz. of painefort, & dure: and that is by force of the statute of Anno 28. H. 8. St. 28. H. 8. 15. which hath ordained, That all Treasons, Felonies, Robberies, Murders, and confederacies committed upon the Sea, or in any other Haven, River, Créeke, or place, where the admiral hath, or pretendeth to have jurisdiction, shallbe inquired, heard, cried, determined, and judged in such shires & places in the realm, as shall be limited in the king's Commission or Commissions, to be directed for the same, in like form, as if any such offences had been committed upon the land. And such Commissions shallbe had under the great Seal directed to the Admiral, or his Lieutenant and Deputy, and to three or four such other, as shallbe appointed by the Lord Chancellor, as often as need shall require, to hear and determine such offences after the common course of the laws of this land, used for Treasons, Felonies, Robberies, Murders, and Confederacies of the same, committed upon the land within this Realm. And if any person happen to be indicted for any such offence done upon the Seas, or in any other place above limited, than such order, process, judgement, and execution shallbe used and made to and against every such person so indicted, as against Traitors, Felons, and Murderers, for Treason, Felony, Robbery, Murder, or other such offences done upon the land: and such as shallbe convict of any such offence by verdict, confession, or process, shall suffer such pains of death, loss of lands, goods, and cattles, as if they had been attainted and convicted of any of the said offences done upon the land. No penance 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 means whatsoever, the offendor shall not have the said judgement of penance, viz. of pain grievous and durable, but shall have another judgement, that is to say, as of a Traitor convict. No penance for a man before attainted. 6 If a man that is attainted of Felony be brought to the bar, 8. H. 4. 2 26. As. p. 19 and asked what cause he can show, why he should not be put to death, and he will stand mute: in this case he shallbe hanged, and not put to his penance, for he cannot put himself upon an inquest of felony, because he was attainted thereof before, and so he is out of the case of the stat. 7 If a man upon his arraignment doth confess the felony, Standing mute after confession. and before judgement at another day he will stand mute by fraud, and so it is found: in this case he shallbe hanged, 14. E. 4. 7. and not put to his penance, for his judgement shall be given upon his confession. And so it is, Demurring in law. if he do demur in law upon any point which is adjudged against him, he shallbe hanged: for in both those cases he is out of the purview of the foresaid stat. of West. 1. And in like sort he shallbe hanged and not put to his penance, if he be indicted and arraigned for a murder, or manslaughter committed within the King's Palace, or where he 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 upon his arraignment doth stand mute, Inquirie of him that standeth mute. before he shallbe hanged, put to his penance, or otherwise suffer death, it shallbe inquired, if he do stand mute by fraud, or by the act of God: for if it be 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 have pleaded, if he had not been mute, to have stayed execution. M. 8. H. 4. 1. And this inquiry is but of office, and shall be made by the Marshal's servants, and others. But if it be in case where an issue is joined by the consent of the parties, and after when the inquest doth come, the prisoner doth stand mute, there the Court shall charge the inquest which appeareth therewith, without putting any of the Marshal's servants unto them, and so change that which was a jury by the consent of the parties, to an inquest of office. And their charge shall be to inquire of the time when he did speak, and if he be mute of malice, or in delay of his execution, or by the act of God. But this charge or inquiry, ought not to be made or given, where the prisoner did speak to the Court when he was at the bar, and after the same day, because he would not join issue, or challenge peremptorily above the number appointed to him by the law, be adjudged to his penance: for than 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 justices before whom he did confess his felony, or was attainted, to answer why execution should not be done of him, and he will stand mute: in this case there needeth no inquiry to be made, if he be the same person or not, for that doth appear to the justices by his continual remaining in prison. But it is otherwise if he go at liberty after his attainder, by abjuration, outlawry, and such like. 4. E. 4. 11. 14. Ed. 4. 7. 8. H. 4. 2. 9 The judgement in the said penance, The judgement in penance. viz. in the said pain heavy, and grievous, is, That the prisoner shall be sent to the prison from whence he came, and put into a mean house, stopped from light, & there shallbe laid upon the bare ground, without any litter, straw, or other covering, and without any garment about him, saving something to cover his privy members, and that he shall lie upon his back, and his head shallbe covered, and his feet bare, and that one of his arms shall be drawn with a cord to one side of the house, and the other arm to the other side, and that his legs shall be used in the same manner, and that upon his body shallbe laid so much iron and stone as he can bear, and more, and that the first day after he shall have three morsels of barley bread, without any drink, and the second day he shall drink so much as he can three times of the water which is next the prison door, saving running water, The forfeiture. without any bread: and this shallbe his diet until he die. Fitz. Escheat. 10. And he against whom this judgement of penance shallbe given, shall forfeit to the king his goods, but he shall forfeit no land. judgement and Execution in Treasons, Felonies, etc. Having written of Treasons & Felonies, & showed who be principals, and who be accessories therein, how the offenders therein are to be pursued by Appeals, or inditements, what pleas they may plead, & how they are to be tried, that the truth of each persons innocency, or guiltiness may appear: I am now to treat of the judgement & execution which by the laws & statutes of this Realm must follow thereupon. As first, judgement where the prisoner is acquit. if he that is arraigned of treason or felony, be acquit thereof, there is none other judgement, but that the Court doth discharge him, paying his fees. 2 The judgement of a man attainted of high Treason is, judgement in high treason of a man. that he shall be led back again to the place from whence he came, and from thence be drawn upon a hurdle to the place of execution, and there be hanged by the neck, and then be cut down alive, and his entrails and privy members be cut from his body, and be burned in his sight, and his head to be cut off, and his body to be divided into four parts, 6. El. Dyer 230. and then to be disposed at the King's pleasure: Saving that the judgement of a man which is attainted for clipping the King's money, contrary to the Statute of ann 25. Ed. 3. 2. shallbe only, that he shallbe drawn and hanged; though it was high treason by the common law, & so is expounded & confirmed by that Statute. But if any man shallbe attainted of treason, for committing any of the offences made high treason by either of the Stat. of ann 1. M. 6. 1. & 2. P. & M. 11. 5. El. 11. 18. El. 1. 5. El. 1. 13. El. 2. 23 El. 1. 27. El. 2. 3. jac. 4. he shallbe adjudged a traitor, S. Treasons and shall have judgement, and suffer, as in cases of high treason, viz. he shallbe drawn, hanged, and quartered, as is before mentioned. And though there be no mention made thereof in the judgement, yet he that is attainted of treason or felony by verdict, confession, outlawry, or abjuration, shall also forfeit his lands and goods, his wife shall lose her dower, and his blood shallbe corrupted, saving in certain cases. 3 The judgement of a woman, which shallbe attainred of high Treason, or petite treason, The judgement of a woman traitor. is, 1. R. 3. 4 That she shall be led back again to the place from whence she came, and from thence be drawn upon a hurdle, to the place of execution, and there be burned to death. 8. El. Dy. 254. But if one man do murder an other, and the wife of him that was murdered be accessory to her husbands death, the murderer and the wife both shall be hanged, and she shall not be burned, because she was but accessary. 4 The judgement of a man attainted of petit treason, judgement of a man in petit treason. is, That he shall be led back again to the place from whence he came, and from thence drawn upon an hurdle to the place of execution, and there to be hanged by the neck, until he be dead. judgement in felony. 5 The judgement of a man attainted of murder, burglary, robbery, or other felony, is, That he shall be led back again to the place from whence he came, and from thence carried to the place of execution, and there be hanged by the neck until he be dead. And the like judgement is given against a woman, being attainted of any of the same offences. 6 The judgement in misprision Misprision. of treason, is, That the offendor shall forfeit to the King his goods and his lands during his life, and shall be perpetually imprisoned during his life. Attainder of treason by the common law 7 In the foresaid judgement given in high treason by the order of the common Law, there can be no error assigned, St. 33. H. 8. 20. but it is as strong as if it had been done by Act of Parliament: For the Statute made Anno 33. H. 8. hath ordained, That if any person or persons shall be attainted of high treason by the course of the common Laws or Statutes of this Realm, that in every such case, such attainder by the common Law, shall be of as good strength, value, force, and effect, as if it had been done by authority of Parliament. judgement of penance. 8 The judgement of him who being indicted of felony, will stand mute of malice, or not answer directly, or will refuse lawful trial, P. 4. E. 4. 11. being called Penance, or pain for't & dure, is, That the prisoner shall be sent to the place from whence he came, etc. S. Standing mute, etc. 9 judgements in felony by justices of Nisi prius. 9 As touching those who shall give judgement against the offenders aforesaid, it is ordained by the Statute of Anno 14. H. 6. St. 14. H. 6. 1 That the justices before whom Inquisitions, Inquests, and juries shall be taken by the King's writ called Nisi prius, according to the form of the Statute thereof made, have power of all the cases of felony, and of treason, to give their judgements, as well where a man is acquit of felony, or of treason, as where he is thereof attainted, at the day and place, where the said Inquisitions, Inquests, and juries shall be taken, and then from thenceforth to award Execution to be made by force of the said judgements. 10 Because it oft times falleth out, that an offendor is found guilty of treason or felony before some justices of jail Delivery, for the which judgement of death should or might ensue, and yet that person is reposed to prison, without judgement at that time given against him; and then before the next jail delivery the same justices of jail delivery do die, or be removed, and others be assigned justices of jail delivery in their places by the King's Commission, which (as many did conceive it) could not give judgement of that prisoner, so repried by the former justices, by warrant of the foresaid Statute of 14. H. 6. 1. or for some other cause: For the remedy whereof by a Statute made Anno 1. Edw. 6. St. 1. E. 6. 7. it is enacted, judgement by new justices. That in all Cases where any person shall be found guilty of any Treason, Murder, Manslaughter, Rape, or other felony whatsoever, for the which judgement of death should or may ensue, and shall be repried to prison without judgement at that time given against him: Those persons that at any time shall by the King's Letters patents be assigned justices to deliver the jail, where any such person found guilty shall remain, shall have full power to give judgement of death against such person so found guilty, and repried, as the same justices before whom such person was found guilty might have done, if their Commission of jail Delivery had remained in full force. 11 The judgement in petit Larceny judgement in petit larcenie. is, that the offendor shall be led back again to the jail, Stocks, or place from whence he came, and there to remain a week, a month, or, etc. and then in such a City, Borough, Market town, Village where the fact was done, or other place assigned by the justices, to be tied to a cart, stripped from the girdle upward, and whipped until his body do bleed, once, twice, or thrice, etc. according to the justices discretion. 12 If a woman be indicted and arraigned of felony, Stay of a woman's execution being with child. it is no plea for her to say, that she is with child, but she must plead to the felony, Not guilty; and if she be found guilty, than she may allege, that she is with child: and then the Marshal or Sheriff shall be commanded to return an inquest of twelve women before the justices, 22. As. p. 71 25. Ed. 3. 42. 12. As. p. 11 23. As. p. 2. Fitz. Cor. 240. 253. who being then sworn to examine and try the truth, shall take that woman into a chamber, and search and try whether she be quick with child, or not: and if she be found to be quick with child, than execution of her shall be stayed until she shall be delivered: But if she be not quick with child, she shallbe hanged presently, for it will not avail her to be young with child: And yet whether she be with child, or not, judgement shall not be delayed, but shallbe presently given against her, that she shallbe hanged: but only the execution of that judgement shall be stayed. If after she is repried and delivered of her child, and before the next jail delivery she be with child again, though she be quick with child, execution shall not be stayed, but she shallbe put to execution presently. And yet in that case the truth of the matter being inquired of, and found, the sheriff, marshal, or gaoler which had the custody of her, shallbe fined, for keeping her so slackly, that she had the company of a man. 13 If a man attainted of felony, be adjudged to be hanged, Fi. Cor. 335 and the sheriff doth carry him to the place of execution, and doth hang him, and he breaketh the Rope, and falleth down before he be dead: A man hanged falleth down before he be dead. In this case the sheriff must take him, and hang him again, for his judgement is, that he shallbe carried to the place of execution, and there be hanged until he be dead: And so until he be dead, the judgement is not fully executed. ❧ Forfeiture. AFter an offendor is attainted of treason, or felony, A fellow shall forfeit lands and goods and hath had judgement of death, he shall presently thereby forfeit his goods, and also his lands (saving in certain cases hereafter expressed) though it be not mentioned in the judgement. And notwithstanding there is a difference between treason and felony, concerning the forfeiture of lands; yet touching the forfeiture of goods, they be all one, for they shall be forfeited to the King, St. 17. Ed. 2 16 as it appeareth by the Statute entitled Prerogativa Regis, which hath ordained, That the King shall have all the goods of felons which be condemned, and which be fugitive, wheresoever they be found: and if they have any fréeholde, it shall be forthwith seized into the King's hands, and the King shall have the profits thereof, by the space of a year, and a day, and the land shall be wasted and destroyed in the houses, woods, and gardens, and in all things belonging to the same, (except men of certain privileged places.) And after the King hath had the year, day, and waste, the land shall be restored to the chief Lord of the same Fee, unless that before he redeem the same year, day, and waste of the King, by payment of a fine. But there is a custom in the county of Gloucester, that after a year and day, the lands and tenements of felons in that Shire, shall revert, and be restored to the next heir to whom they ought to have descended, if the felony had not been committed. And in Kent in gavelkind (the Father to the Bough, the Son to the Plough,) there all the heirs males shall divide their inheritance, and likewise women: but women shall not make partition with men: And a woman after the death of her husband, shall be endowed of the moiety: And if a woman do commit fornication in her widowhood, or take any husband, she shall lose her Dower. 22. As. p. 96 Fit. forfeiture 35. 2 A man being indicted before the Coroner of the death of an other man, Forfeiture of goods. and if it be further found by the same indictment, that he did fly for the said felony, although after he be acquit of the same felony, 7. Eli. 35. Dy. 238. Co. l. 5. 109 and notwithstanding that the inquest which did acquit him, do say that he did not fly for the felony, yet his goods shall be forfeited to the King: For the King shall take hold of that Record which is most for his benefit, and that is the Coroners Record. And in like sort, if one that is indicted of felony, Fitz. forf. 32. Fi. Cor. 290 344. is acquit thereof by verdict, Flying for felony. if the jury which did acquit him will say, that he did fly for the felony, he shall forfeit his goods, which he had at the time of the verdict given: which being an ancient law of this Realm, is grounded upon this reason, that notwithstanding his acquittal of the felony, yet he is to be suspected of the felony, for the vehement presumption which is risen of him, as well in respect of his flying away, as by the indictment. And though the inquest which did find, that he fled for the felony, be as touching that part of their verdict, but an inquest of office, yet it is not traversable, because it is only touching goods, for the which goods no traverse against the King is allowed by the Law, for the Law doth account goods inter minimums, & de minimis non curat lex. And though goods be in comparison of man's life, or his lands, in the eye of the Law called and accounted Minimums, yet they be not of so small value, or so little to be regarded, but the judge, or the Coroner ought with all due circumspection foresee, that the jury be not upon ignorance or small evidence seduced to find an untruth, to the utter undoing of the party indicted or accused. Fi. Cor. 308 338. And in like sort, if a man be indicted and arraigned of felony, and it is found by the inquest, or the Coroners Roll, that he fled for the felony; he shall forfeit his goods, though he hath the King's pardon of the felony: for the charter of pardon doth contain the presumption of him, that he is guilty of the felony. An accessory fled for the felony. 3 If a man be indicted before the Coroner as accessory to the death of an other man, and it be found, that he fled for the felony: 4. H. 7. 18 in this Case he shall forfeit his goods, if he were accessory before the felony committed. But if it be found before the Coroner, that he was accessory to the felony after the offence committed, and that he fled for the felony, he shall not forfeit his goods: for the Coroner hath no authority to meddle with any that was accessory after the homicide committed, but only with such, by whose means the dead man was slain, or who were the causes of his death, which the accessory after the offence committed could not be. And therefore when he indicted one for receiving of a murderer, and that he fled, this indictment of the receipt of the murderer was void, and consequently the finding of the flying. The difference of the Coroners and the justices authority. But if one man be indicted of felony as principal, and another as accessory after the offence committed before justices; and the principal is attainted by verdict, and the accessory is acquit, and it is found, that he did fly for the felony, he shall forfeit his goods: for that justices assigned have authority to inquire, as well of accessories after the felony committed, as of accessories before the felony. The forfeiture for petit larcenie. 4 If one be indicted but of petit larceny, Fi. Cor. 406 and upon his arraignment be thereof acquit, and it is found, that he did flee for the felony, he shall forfeit his goods. And likewise if he be attainted of petit larceny, he shall forfeit his goods, but not his lands. 5 This flying away, whereupon the forfeiture of goods doth ensue, may be as well, where the offendor doth fly before arrest, Forfeiture upon flying before arrest. as where he doth fly after arrest: as if a man that is vehemently suspected to have committed a murder, or other felony, is attempted to be arrested by the Sheriff, Coroner or any others, and he doth fly away, and is pursued, and because he will not yield himself to the King's peace, Fi. Cor. 289 290. 312. and be taken, is slain in the pursuit, by those that would have arrested him, or by some others, that did come to assist them, and that be presented of record before the justices, having authority to inquire thereof: Forfeiture without attainder. In this Case his goods shall be forfeit to the King: although being slain, he could neither be acquit, nor attainted of the felony, whereof he was suspected. And yet if this man had been taken alive, and that it had been found, that he had fled for the felony: 42. As. p. 5. if he had not also been indicted of the felony, he should have forfeited nothing: for without an indictment it could not be proved, that a felony was committed, and he could not fly for a felony, if none such were done. S. Bra. 30. 22. Ass. p. 81 41. Ass. p. 13 Co. l. 5. 110 6 If Process be awarded upon an appeal or indictment of felony against any person, who doth absent himself, and not appear, until the Exigent shall be awarded against him; Forfeiture upon the Exigent awarded this long absence, which is a flying in Law, shall cause him to forfeit his goods, although after he be acquit of the felony. And the reason is, for that it doth appear of Record, that he did fly, or withdraw himself, when he absented himself until the Exigent was awarded against him. But if he hath any reasonable excuse of his absence, as that he was in prison at the time of the Exigent awarded, or beyond the Sea, Fitz. forf. 19 31. or such like reasonable excuse, than he shall not forfeit his goods: and yet if the Defendant in an appeal, were out of prison, at the time of the awarding of the Exigent against him, and after when the outlawry was pronounced against him, he was in prison, by his imprisonment he may reverse the outlawry, but he can not reverse the awarding of the Exigent, which was lawfully awarded against him, whereupon the forfeiture of his goods did accrue to the King. And the like Law is, if the King had pardoned the felony, before the Exigent awarded, and the offendor had found surety in the Chancery according to the Statute of Anno 10. Edw. 3. 3. yet if the Exigent were after awarded against the offendor, 43. E. 3. 18. the offenders goods should not be forfeited: for it doth appear of Record, for what cause the goods were saved, viz. because the felony was pardoned, and therefore the awarding of the Exigent against him, upon an indictment of felony, is reversable, whereupon he should forfeit his goods. 7 If an appeal be pursued against two, viz. against one of them as principal, and against the other as accessory, and the Exigent is awarded against the accessory, 43. Ed. 3. 17 before the principal is outlawed, the accessory shall not forfeit his goods, St. 3. E. 1. 14 though he did fly for the felony: for the Statute of Westminster 1. hath ordained, That no person shall be outlawed upon appeal of commandment, force, aid, or receipt, until the principal shall be attainted. No forfeiture by the accessory until the principal be attainted. And yet the appellor shall not let to attach his appeal at the next County, as well against the accessory, as against the principal. But the Exigent against the accessory shall stay, until the principal be attainted by outlawry, or otherwise. But this is intended of an appeal commenced by Bill, and not by Writ; for in an appeal by Writ, it doth not appear who is principal, and who is accessory, 43. Ed. 3. 17. until the appellant hath declared against them. Forfeiture notwithstanding appearance and pleading. 8 If an Exigent be well awarded against the defendant, 43. Ed. 3. 17. and then he doth appear, and the appellant doth count against him, notwithstanding there be a default in the writ or Count, whereupon the writ doth abate, yet the defendants goods shall be forfeit: for by the awarding of the Exigent, the goods shall be forfeit, and no Count which the plaintiff can make after, shall cause the defendant to have his goods again. And when the defendant hath appeared and pleaded, the process is determined, which process is the King's title, and thereunto the defendant hath made no answer. The forfeiture of a Clerk convict. 9 A Clerk convict shall forfeit his goods, viz. (he that is indicted or appealed of felony, and thereunto pleadeth Not guilty, and upon his arraignment doth desire to be tried by his Country, which findeth him guilty of the felony, and then he prayeth his Clergy before judgement of death is given against him, is called a Clerk convict.) He that committeth homicide by misadventure, Pomicide by misadventure. shall forfeit his goods: 4. H. 7. 2. And so shall he which doth kill a man in his own defence, Killing in his own defence. forfeit his goods: And likewise he that killeth himself, and is felo de se, Felo de se. shall forfeit his goods: And he that being indicted of felony will stand mute, Standing mute. not answer directly, or challenge peremptorily above twenty persons, shall forfeit his goods. Forfeiting of a right or action. 10 In some cases an offendor shall forfeit a right, or a thing whereof he hath no possession but only an action, or title thereunto: As if goods be wrongfully taken, or holden from the possession of the owner, and after the owner is attainted of treason or felony, those goods shall be forfeited to the King: 6. H. 7. 9 and the Court of the King's Exchequer may award process against the possessor of them, to bring them into the same Court. And so the King shall have the benefit of an action of trespass, Forfeiture of a trespass. which the party attainted might have had against the other for those goods wrongfully taken, or holden away. But if he that was attainted, were beaten or mayhemed by another, the King shall not have an action of trespass of battery, 29. As. p. 63 30. Ed. 3. 4 appeal of mayheme, or other remedy against that party, which did the foresaid injury to the person attainted, for that the money to be recovered by the action of trespass is reduced to no certainty. And if money be owing to a man by obligation, or simple contract, Forfeiture of a debt. and after he to whom the money is payable, is attainted of treason or felony, Fi. Cor. 343. that obligation and duty shall be forfeited to the King. And if one man or more be bound by obligation to two men, or more, for the payment of a sum of money, or any other duty, joint debt forfeited. and one of the Obligées is outlawed, or attainted of treason or felony, the King shall have the whole Obligation, and the money or duty arising or payable thereby; 19 H. 6. 47. 28. H. 8. Dy. 30. and the King, or he to whom the King will give the same debt, shall have an action in his own name to recover it: which action shall be maintainable, though there be variance between the action and the specialty. 50. As. p. 5 28. Ed. 3. 92 And in like sort, if a man be Receiver to another of his money, An account forfeited. and he to whom he is receiver be attainted of Treason or Felony, after office found thereof, the King may have a Scire facias against the Receiver to receive this money, and by that means the King shall have the benefit of the action of account, which the party attainted might have had. Forfeiting of an interest. And in some cases an offendor in treason or felony shall forfeit an interest in lands, whereof he himself never had, or could have possession, but an authority to dispose: As if he that hath the reversion of lands in fee simple, whereof another hath the possession for the term of years, 14. El. Dy. 309 doth grant and assure this land to others, to the use of himself for term of his life, and after his decease, to the use of the Executors and Assigns of the grauntor, for the term of twenty years next after the death of the grauntor, the remainder over in tail, and after the grantor is attainted of treason by Act of Parliament, and all his lands, tenements, goods, and cattles which he had to his own proper use, were forfeited to the King, and vested in his actual possession without office, and the grauntor died intestate without assignment of this lease: In this case, the King shall have this term of twenty years as forfeit to him, for it was an interest in the grauntor, and did, and might well remain in him in expectancy, notwithstanding his estate for the term of his life; and if the grauntors' executors should have had this lease, they must not have enjoyed it to their own use, but as assets in their hands. And though the King shall have such goods, The King shall not pay the attainted persons debts debts, money due upon accounts, and interest in lands, as were due to the party attainted of treason, Fi. Cor. 317 334. or felony, yet he shall not pay such debts as the said person attainted did owe. 11 As in the cases aforesaid, and some others, a person attainted may forfeit goods, debts, and rights, whereof he hath no possession, but only an action, or title: so in some other cases, he may forfeit goods, whereof he hath no property, but only a possession: As if a man deliver money out of a bag, Forfeiting of goods wherein the offendor hath no property. or corn out of a sack, to another to keep, and to restore again when the owner will require it, if the party to whom the money or corn was delivered be attainted of Treason or felony, the money or corn shallbe forfeited to the King, and the party who delivered the same, hath no remedy to recover it, for the first owner who delivered it cannot prove that it was his money when it was out of a bag, or that it was his corn when it was out of a sack, for that one sort of money cannot be known from another, nor one sort of corn from another. Fi. Cor. 317 3●3 But if the money were delivered in a bag, or the corn in a sack, than the owner that delivered it may come unto the justices before whom the offendor is attainted, and show the delivery of it, and signify that it was to be restored upon his request: whereof the justices shall inquire by an inquest of office, and if his suggestion be found to be true, he shall have his money or corn again: But if the money or other thing delivered by the owner be converted to another commodity, than the law is otherwise: as if a man deliver money to another to buy wool, or some such other commodity, and to work it, lay it up, or to keep it in his house, Fitz. Cor. 334. and the party to whom the money is delivered, doth buy wool, or etc. and bringeth it to his own house, and then is attainted of Treason or Felony, the King shall have the wool, or &c. as forfeit, and the party who delivered the money is without remedy to recover his money, or the wool, or etc. for though he might have had an action of Account against the party to whom he delivered his money, if he had lived, and remained unattainted, yet he shall have no action or remedy against the King. Forf. for default of pursuit. 12 If a man do steal goods at divers times from several men, and he is attainted at the suit of one of them, for the goods stolen from him, 44. E. 3. 44. but is not attainted at the suit of the others: by this attainder the fellow shall forfeit to the King not only his own goods, but also the goods stolen from those other, at whose suit he was not attainted, though he had no property, but only a possession in those goods: for a fellow hath no property in goods stolen, A fellow hath no property in goods stolen. but it doth always remain in the right owner, which property in this case, for default of pursuing the fellow, is forfeited to the King. Forf. of other men's goods & his own. 13 In like sort, if a man do steal goods from another, Fi. Cor. 318 and before his attainder, he doth kill himself, he shall forfeit to the King not only his own goods, but also the goods which he did steal from that other, though he had no property, but a possession in the stolen goods: for the owner of these goods having not prosecuted and given evidence against the offendor, to attaint him of Felony, either by Appeal or Indictment, can neither have restitution of these goods by the common law, nor by force of the Statute of 21. H. 8. 11. 14 In the time of King Edward the second, it was holden for law, That if a wife did kill her husband, Forf. where a woman killeth her husband. and after did fly, all the goods within the house, and without, the corn in the barns, and yard, and that which was growing on the ground, should be confifcat and forfeit to the King: And their reason was, for that when the husband is killed, and no will was made by him of his goods, they ought to remain to his wife, and then she being in case, that by the committing of this treason she cannot have them, Anno 8. E. 2 Fi. Cor. 423 they be forfeit to the King, and confiscate. But that law seemeth to be altered by the Statute of Anno 31. Ed. 3. which hath ordained, That where a man dieth intestat, the Ordinary shall depute the next and most lawful friends of him which died intestat, to administer his goods. And moreover, St. 31. E. 3. 11. St. 21. H. 8. 5 by the Statute of 21. H. 8. it is further enacted, That if any person die intestat, or the Executors named in any such Testament, refuse to prove the said Testament, than the Ordinary, or other person or persons having authority to take probate of Testaments, shall grant the administration of the goods of the Testator, or person deceased, to the widow of the same person, or to the next of his kin, or to both, as by the discretion of the same Ordinary, shall be thought good, taking surety of him, or them, to whom shall be made such Commission, for the true administration of the goods, cattles, and debts, which he or they shall be so authorised to administer. By which two Statutes it doth appear, that the law doth not cast the interest of the husband's goods dying intestat upon the wife, nor give her such a title thereunto, as she may either possess, alien, or forfeit them, until she be authorised by the Ordinary. And in the mean time between the husband's death, and that the administration of the goods of the intestat be granted to some person or persons, the interest of the goods is in the Ordinary, as appeareth by the Statute of Westminst. 2. 13. Edward. 1. 19 P. 10. Ed. 4 1 15 If he that is made Executor, Executor shall not forfeit his Testators goods. or which hath taken letters of Administration of the goods of one which died intestat, be attainted of Treason or felony, he shall not forfeit the goods of the Testator, or intestat, because those goods be the Testator or intestats goods in his custody, and he hath not them to his own use, but a right of disposing of them, towards the performance of the Testators will, or to pay the intestats debts: And whereas the law doth allow a woman covert to make a will, and to ordain her husband her Executor thereof, or to make any other person her Executor (by her husband consent) of her Parophanalia, 39 H. 6. 27. 12. H. 7. 22. 18. E. 4. 11. 4. H. 6. 31. or jewels of value, and of such debts as were due to her as Executrix to another, and of such Obligations, Recognizances, and other specialties as were before marriage made, or acknowledged unto her, and of such goods as were taken wrongfully from her, before the marriage between her husband and her, for the recovery whereof the husband may have his actions as Executor to his wife, but not as husband to his wife, neither would they ever have been recovered, if she had not made an Executor; and when they be recovered, the Executor shall stand chargeable to others for debts due and payable by his wife, so far as the same goods recovered will extend: In this case, if the husband, or that other which is made Executor to the woman covert, M. 33. H. 6. 31. shall be attainted of Treason or Felony, the goods of the wife, or the money recovered, shall not be forfeited to the king, because the Executor hath them, but towards the performance of the woman's will, and to satisfy those debts and legacies which she did stand charged to pay. 16 If any person that is jointenant, jointenants' forfeiture. or tenant in common with another, of goods, be attainted of Treason, or Felony, the whole goods shall be forfeited to the King. And if a lease for the term of years be made to the husband and wife of certain lands, Fitz. Traverse 33. 50. Ass. p. 5. Ps. Com. 258. and the husband be attainted of Treason, or Felony, the whole term shall be forfeited to the King. And likewise it is of felo de se, if a lease be made to him and his wife for the term of years, he shall forfeit to the King the whole term. 17 The law in some cases doth give another title to the King of goods that late were another persons, and doth not term it a forfeiture, but a confiscatition of goods, Confiscation of goods. and that is, when the goods were not claimed, or title pretended unto them by any other: Fitz. Cor. 355. 368. As if a man be indicted for the felonious stealing of another man's goods, where in truth those goods were his own, and the goods be brought into the Court as a manor against him; and it is asked of him, whose those goods be, and he doth disclaim to have any property in them: by this disclaimer he shall lose the goods, Confiscation by disclaimer in his own goods. though they were his own: and though he be acquit of the felony, the goods by this disclaimer shall be confiscate to the King: but if he had not disclaimed in them, Fitz. Cor. 391. the goods should have been restored unto him. Confiscation by disclaiming in the goods of others. 18 If goods be found in the possession of a fellow, which he doth disavow, Fi. Cor. 368. and after he is attainted for the stealing of other goods, but not of those: In this case the goods which he did disavow shallbe confiscate to the King: But if he had been attainted for the stealing of those goods, Fitz. Forf. 24. they should have been termed goods forfeit, and not goods confiscate. Confiscation of goods left out of an appeal. 19 If one do bring an Appeal of Robbery against a fellow, and leaveth out of his Appeal some part of the goods rob: Fitz. Cor. 100 Co. li. 5. 110 in this case the King shall have those goods which be left out of the Appeal, for the plaintiff cannot enlarge his Appeal, nor recover those goods left out. And therefore seeing the fellow can make no executor, nor any can be administrator to him, and so no other person is entitled to have those goods, the King shall have them as confiscate, according to the old text, Quod non capit Christus, capit fiscus: And the appellant shallbe thus punished, by the loss of his goods, for his negligence, attenuating, concealing of the robbers offence. Confiscation by a false appeal. 20 If a man bring an Appeal of Robbery against another, which took the Appellants goods lawfully, Fitz. Cor. 367. and not feloniously (viz. found them in the high way) & it is so found by verdict: in this case, though the appellee hath no cause to detain them against the appellant, for that they were his own goods, yet the plaintiff shall lose them for his false appeal, and they shall be confiscate to the King; and also the appellant shall be committed to prison, for charging the defendant with robbery, whom he did know came lawfully by the goods, Co. li. 5. 110 and so for malicious seeking of a man's blood without cause; and the defendant shall be discharged. 21 There is another kind of forfeiture of felons goods to the King, which is called a waif, A waif. and that is, when a fellow upon hue and cry, or other pursuit after him, or for fear to be taken, ere otherwise to ease himself of carriage, Co. li. 5. 109 doth without Hue and cry waive, cast away, or go from the goods that he did steals, and hath in his possession, or some part thereof, and doth fly away, whereupon the King's Officers, or some other in the King's right, doth seize those goods: Seizing of a waif. In this case the goods so seized be called a waif, and the King shall retain them to his proper use, if the owner of them doth not make fresh suit after the fellow, to attaint him for those goods. And if the owner do make fresh suit after the fellow, he shall have his goods again, notwithstanding the waving and seizing of them. And this forfeiture of goods by waif, is a penalty which the law imposeth upon the owner of those goods, for default of fresh suit against the fellow, and for omitting his duty in pursuing and apprehending of the fellow, being a pernicious and corrupt member of the Commonwealth. St. 21. H. 8. 11. And by the Statute of 21. H. 8. the justices before whom any fellow or felons shallbe found guilty, or otherwise attainted by reason of evidence given by the party rob, or owner of any money, goods, or cattles rob, or by any other by his procurement, have power to award from time to time, writs of Restitution, for the said money, goods, or cattles, as though any such Felon or Felons were attainted at the suit of the party in Appeal. But if a fellow do steal goods, Co. li. 5. 109 and carry them into a Manor, and there leave them, or leave them in his own house, or in the house of any other, or in the custody of any other, or hide them in the ground, or in any secret place, and after doth fly, these goods shall not be adjudged in law to be waived, nor shall be forfeited: for if the fellow hath not the goods with him when he doth fly, or doth waive them for fear to be taken, they shall not be accounted waived or forfeited, but the owner may take them again without fresh suit, for that there is no default in him. 22 If a fellow do steal goods, and after doth waive them, The owner seizeth goods waived. the owner of them may reseise the same goods, and carry them away twenty years after the waving of them, if in the mean time no Officer of the Kings, nor of any Lord of a liberty, 21. Ed. 4. 16. hath seized them before the owner: But if any Officer of the Kings, or of any Lord of a Franchise hath seized them before, than the owner must sue an Appeal against the fellow, and so he may have his goods again, if he hath made fresh suit: or else the owner must procure the fellow to be indicted, arraigned, and found guilty, or otherwise, to be attainted by evidence given by himself, or by some other by his procurement, and by that means obtain a writ of Restitution to be awarded by the justices before whom the said fellow shall be arraigned, according to the foresaid statute of 21. H. 8. 11. And the like law is, if a fellow do steal goods, and doth not waive them, nor any Hue and cry is made upon him, but one in the Kings right doth take the goods from the fellow, upon suspicion that he hath stolen them, yet the owner upon fresh suit shall have restitution of them again, for it may be, that the owner had not intelligence of the stealing of his goods a long time after they were stolen, and then could not make fresh suit, nor levy hue and cry. 23 There can be no waif but of goods stolen (saving in certain cases) for if one do take goods as a trespasser, and doth go from them, No waif but of stolen goods. no man can seize them as a waif: P. 13. E. 4. 5 And therefore in an action of Trespass of goods taken away, if the defendant do justify for a waif, it is a good issue for the plaintiff to join, that the goods were not stolen. And if a man do fly for a felony, and leave his house & goods, yet those goods shall not be a waif, for that they were not stolen. And in some special case there may be a waif, though there be no stealing, Waif of goods not stolen. as upon a hue and cry levied, 29. E. 3. 29. a man that hath committed no felony doth leave his own goods, and doth fly to a church, those goods may be seized to the King's use for a waif. No waif of goods stolen from an Alien 24 If the goods of an Alien which hath the King's safe conduct both for body and goods, be stolen from him, and by the fellow be after waived, and refused, yet those goods cannot be claimed or seized by the Officers of the King, or of any Lord of a Franchise, for a waif: for when the King hath granted to the Alien safeconduct both in body and goods, and this is a covenant between the King and him; then if a fellow do steal his goods, and after waive them, it is no reason that the Alien should lose them, and be put to sue against the fellow, but he must sue to the King upon his covenant: And therefore the K. cannot have those goods as waif, and by the same reason he cannot grant them to another, neither can any have them by prescription. Forf. of lands 25 As he that is attainted of Treason or Felony, shall lose his goods, debts and rights, Tenant for years. so also shall be forfeit his leases for term of years of lands, the lands which he holdeth by extent of Statutes, Recognizances, or judgements, his leases for the term of his own or another person's life of lands. T. for life. And because tenant in tail is in divers respects but tenant for the term of his own life, T. in tail. of his lands entailed, therefore if he commit Petit Treason, or Felony, he shall forfeit his said entailed lands, but for term of his own life. And he that hath land in another right, shall forfeit for high Treason, petit Treason, Murder, or other felony, no longer or greater estate than he hath in the same lands: as a man seized in the right of his wife of lands, T. in the right of his wife, or church. or in the right of his church, Fitz. Forf. 13. shall forfeit no further estate in the same lands, but during his own estate therein: as it doth appear not only by the rules of the common laws, but the same is also confirmed by the Statute of 5. Ed. 6. 11. hereafter rehearsed. The forf. of lands in tail. 26 By the common law Tenant in tail being attainted of high Treason, should have forfeited the lands whereof he was so seized of an estate in tail, but only for the term of his own life, and the same, after his death, should have descended to his heir: But now by the Statute made Anno 26. H. 8. and Anno 5. Ed. 6. St. 26. H. 8. 16. St. 5. E. 6. 11 it is ordained, That every offendor and offenders, being hereafter lawfully convict of any manner of high Treason, by presentment, confession, verdict, or Process of outlawry, according to the due course and custom of the laws of this Realm, shall lose and forfeit to the King, his heirs and successors, all such lands, tenements, and hereditaments, which any such offendor or offenders shall have of any estate of inheritance, in his own right, in use, or possession, by any right, title, or means within this realm of England, or elsewhere within any the King's dominions, at the time of any such Treasons committed, or at any time after: 16. El. Dyer 332. As if the King give land to the husband and wife, and the heirs males of their two bodies lawfully begotten, the remainder thereof to the heirs males of the body of the husband lawfully begotten, reserving the reversion to himself: and the husband and wife have issue a son, and the husband committeth high Treason, is attainted thereof, and executed; and this attainder is confirmed by Act of Parliament, and all the offenders lands be given to the King: Saving to all Strangers their right, other than to the Donor in Tail, and his heirs: In this case, after the death of the wife, the King shall have the land: for that by reason of the father's attainder of Treason the estate tail was forfeited and extinguished by force of the said Statutes of Anno 26. H. 8. and Anno 5. Edw. 6. and the blood corrupt, An estate tail forfeited and extinguished. and the heirs disabled, for that in his lineal conveyance of his descent to the land, he must derive himself heir as well to his father as to his mother. Br. Done 61 Co. li. 1. 103 And in like sort if a man seized of lands in fee simple, maketh a feoffment thereof to certain persons to the use of his wife for the term of her life, the remainder thereof to the use of the heirs of his own body lawfully begotten; & after the feoffor hath issue a son, and is attainted of high Treason, and executed: In this case his son shall not inherit this land as heir to his father, whose blood was corrupt by his attainder, but the land shall be forfeited to the King by the foresaid Statute of 26. H. 8. And as tenant in tail by committing of high Treason shall by force of the foresaid Statutes of 26. H. 8. & 5. Ed. 6. forfeit those lands whereof he hath the possession, reversion, or remainder in tail: so shall he likewise forfeit to the King by committing of high Treason, those lands whereunto he hath but a right in tail. Pl. Com. 547. As if the King give lands to a man, Forf. of a right in tail. and to the heirs males of his body lawfully begotten, reserving the reversion to himself, and the tenant in tail hath issue a son, and dieth, and the son doth enter and make a feoffment in fee to a stranger of the same land, and then hath issue a son, and committeth high Treason, and is attainted thereof, this land shall be forfeited to the King: for by this feoffment made by tenant in tail to a stranger, there passed none other estate from the same tenant in tail, but only an estate for the term of his own life, and so the tail, and the right of the tail remained in the tenant in tail, and by his attainder the estate in tail is extinguished in the King's reversion in fee simple. And the King shall be said rather to have this land reverted unto him, as if all the issue of tenant in tail were dead, than by forfeiture: for the words of the Statute of 26. H. 8. be, All persons attainted of Treason, shall lose and forfeit to the King, his heirs and successors, all lands and tenements which such offendor shall have of any estate of inheritance at the time of the Treason committed, or at any time after: Saving to all others and their heirs (other than the offenders in Treason, their heirs and successors) all their rights and possessions, etc. which they had at the day of the Treason committed, or after. And by these general words, That they shall lose and forfeit all lands and tenements, which they have of any estate of inheritance, and by excluding the heir in the Saving, lands tailed shall be forfeited: and the lands in this case cannot be aptly termed to be forfeited to the King and his heirs, where he had the fee simple before, but are rather to be said reverted to the King, the tenant in tail dying without any issue, which, by his attainder of Treason, and the corruption of his blood, Co. li. 7. 33. could inherit this land. And if the King by his letters Patents under the great Seal do create an Earl, Forf. of name or title of dignity entailed. and give him the title and honour of an Earldom to him and the heirs males of his body begotten, and the grantee hath issue two sons by several women, and then dieth, and his eldest son doth enjoy the same Earldom, and after committeth Treason, by levying of war in the Realm against the King, and is attainted thereof, and then dieth without issue of his body begotten: by this attainder the same shall be forf. to the K. and not descend to the brother of the half blood, nor to his heirs: for this Earldom and name of dignity may be entailed according to the stat. of W. 2. St. 13. E. 1. 1 De donis conditionalibus, for that it concerneth land, & must be supported and maintained with land to uphold the countenance & charge of the owner thereof: And therefore this Earldom being by the K. given to the Earl & the heirs males of his body begotten, is an inheritance which may descend from one heir male to an other, and then by the special words of the before rehearsed Statute of 26. H. 8. and 5. Ed. 6. it shall be forfeited to the King by the said heirs attainder of high treason: for it was in the same heir an hereditament, and whereof he had an estate of inheritance. And moreover, when the King at the first did give to this Earl, and the heirs males of his body begotten, the foresaid great title of honour, though there was no condition expressed in the same grant, yet there was a secret condition implied therein, viz. that the said grantee, and the heirs males of his body should be assistant and serviceable to the King his heirs and successors by his Council in the time of peace, and by his force and prowess in the time of war: Therefore when the heir male of this Earl the first grantee did take Council to break the peace of the King, and levied wars and employed his force and power against him, he first broke the same secret condition, which was annexed to his ancestors grant of the Earldom: And so there is reason and cause why his said title of honour depending upon the same condition should therewith cease and determine, and that the same should return again to the Crown from whence it was derived. The forfeiture of lands in fee simple. 27 Besides the forfeitures aforesaid, 30. H. 6. 5. every person that is attainted of high treason, petit treason, or felony, shall also forfeit his lands in fee simple, which he hath in his own right, in use, or possession: saving that the attainder of treason by force of the Statute of Anno 5. El. 1. St. 5. El. 1. (ordained against the maintaining of the authority of the Bishops and Sea of Rome) shall not extend to make any corruption of blood, the disheritance of any heir, forfeiture of any dower, nor to prejudice the right or title of any person, other than the offendor or offenders, during his or their natural lives only. And saving that the attainder of treason, by force of the Statute of Anno 5. Eliz. 11. St. 5. El. 11 (provided against the clipping, washing, filing, or rounding of money) maketh no corruption of blood in the heir, or forfeiture of dower in the wife. And saving that the attainder of treason by force of the Statute established Anno 18. El. 1. (against impairing, diminishing, falsifying, scaling, St. 18. El. 1 or lightning of money) maketh no corruption of blood, nor the wife to lose her dower: for he that is attainted of that treason shall suffer death, and forfeit all his goods, and chattels to the King, and all his lands during his life only. And likewise saving that the attainder of felony by force of the Statute made Anno 1. jac. 12. (against conjuration, witchcraft, enchantment, St. 1. jac. 12 charm, and sorcery) maketh no corruption of blood, nor the forfeiture of the heirs or successors inheritance of any land, nor of the wives title of dower. And further saving that the attainder of felony by force of the Statute provided Anno 1. M. 12. against unlawful assemblies, St. 1. M. 12 maketh no corruption of blood. And moreover, saving that the attainder of felony by force of the Statute ordained Anno 5. El. 14. against the forging of Evidences, St. 5. El. 14. and writings, maketh no corruption of blood, nor forfeiture of land or dower. And furthermore saving that the attainder of felony by force of the Statute of Anno 31. Eliz. 4. St. 31. El. 4 (provided against the imbeseling of the queens ordnance, armour, or artillery) maketh the offendor to forfeit no lands, tenements, or hereditaments, any longer than during his life, St. 4. jac. 1. S. Trial by the country 10. Co. li. 7. 34 S. Br. 56. no corruption of blood, nor the wife to forfeit her dower. And the same law is, if an Englishman do commit any felony in Scotland. And if a man have an annuity to him and his heirs, The forfeiture of an annuity. and he do commit high treason, and is attainted thereof, he shall forfeit to the King the same annuity by force of the before recited Statute of Anno 26. H. 8. 13. for that the same annuity is an inheritance. 28 He that is attainted of high treason, petit treason, or felony, Forfeiting of a title to land. shall also forfeit such lands, whereof he hath neither possession, reversion, or remainder, but only a title, or right, or cause of action. As if a man be disseised of lands, and then the disseisée committeth high treason, Co. l. 3. 10 after an office found thereof, the king may seize those lands as forfeited and escheated unto him, in respect of the same persons attainder of treason. And if the disseisée be attainted of petit treason, or felony, the Lord of the Fee, of whom the same lands be holden, may enter into the same lands, as escheated unto him, in respect o● the attainder of his lawful tenant. But the Lord cannot have a writ or escheat, or other action to recover the same land, because his tenant died not, or was not seized thereof, but his only remedy is to enter. 6. H. 7. 9 And if a man make a lease for the term of life of his land, and after committeth felony, and then the tenant for the term of life dieth, the Lord may enter, but cannot have a writ of escheat. 29 As he that is attainted of treason, or felony, shall forfeit his lands, Forfeiting of evidence. so shall the Lord to whom those lands be forfeited, 49. H. 6. 14 have the evidence of the same lands, as escheated or forfeited unto him, to maintain his title in the same lands escheated, and to prove how his late tenant came by and held the same lands. St. 9 H. 3. 29 30 Though it is ordained by the statute of Magna Charta, That justice shall not be sold, deferred, or denied to no man: neither shall any man be condemned but by lawful trial: and that it be further established by the statute of Anno 5. Edw. 3. St. 5. E. 3. 9 That no man shallbe attached nor forejudged of life, lands, or goods, against the form of the great Charter, and the Law of the Realm: So that the Law of the Realm doth allow to every man that is an offendor, his answer and lawful trial, be his crime supposed to be never so great, and the proof thereof never so manifest. But if a man that is arrested of Treason or Felony, or being vehemently suspected to have committed Treason or Felony, is attempted to be arrested, be so wilful, stubborn, or rebellious, Forfeiture without at-attainder. that he will not yield to be justified and tried by the Law, but will either kill himself, or give cause to other men to slay him, Fi. Cor. 289 290 312. S. Br. 5. for resisting and not submitting his obedience to the Law, than he shall forfeit his goods, so that this offence be found and presented by twelve men before the Coroner, or some justices after his death: for in this case the default is in the offendor, and not in the Law, that he came not to lawful trial of his offence; for the law requireth no more, but that the supposed offendor shallbe safely kept sub custodia legis, by imprisonment or mainprize, until it be tried whether he be an offendor or not. But though the person thus slain, shall for his disobedience forfeit his goods, being not attainted either of treason or felony, yet in the like case, he shall not forfeit his lands if he be slain in arresting or after arrest, or otherwise die before he be attainted, St. 34. E. 3. 12. as it appeareth by the Stat. of ann 34. Ed. 3. 12. which hath established, That for forfeitures of dead persons not attainted, nor adjudged in their lives, their heirs or land-tenants shall not be impeached, or challenged, nor of any other forfeiture, except the forfeitures in old time adjudged, after the death of the persons by presentment in Eyre, or in the King's bench, or of felons of themselves, or others. And yet some do affirm, if a man do levy war, or open rebellion against the King, or is assistant to his enemies in the field, and then is slain in battle, he shall forfeit his lands & goods: And others do add thereunto, that the same his Treason and manner of death, must also after his death be found by a jury super visum corporis, Co. li. 4. 57 Pl. Com. 262. 263. before the chief justice of England, being the sovereign Coroner of the realm, and he must return it into the King's Bench, and make a Record thereof, and then that person shall forfeit his lands and goods. And upon those words of the said Statute of 34. Ed. 3. viz. (Except the forfeitures in old time adjudged after the death of the persons by presentment in Eire, or in the King's Bench, or etc.) some do infer, that if a presentment in Eire, or in the King's Bench, be made of such an open rebellion, and battle thereupon fought, and of those that manifestly showing themselves to be open enemies or rebels to the King, were slain therein, that by the words of the same Statute, they shall forfeit their lands. But if a man be arrested for counterfeiting the K. great or privy Seal, for forging of his money, or for a privy conspiracy of the death of the King, or etc. and is slain in resisting the said arrest, or for a rescous attempted before or after the said arrest, he shall forfeit his goods, but not his lands. And if he be arrested for any of the said offences, and committed to prison for the same, and after doth die in prison before he be attainted of any of the said offences, he shall neither forfeit lands nor goods, though he be taken with the manor, viz. found hand having, and back bearing: for though it is a mischief that a man committing high Treason, shall forfeit neither life, lands, or goods, yet the law doth rather bear with that mischief, than to suffer such an inconvenience, that a man only accused, or but only a supposed offendor, should be attainted, and forfeit his lands and goods, where being prevented by death, viz. by the hand of God, he cannot come to answer, and defend himself, and by that means cannot be condemned by such lawful trial which is meant and specified in the before rehearsed Statute of Magna charta: But for the avoiding of question and doubt in the case aforesaid, they which have been known parties to such open and manifest rebellions, St. 29. H. 6. 1 St. 12. El. 16 St. 29. El. 1 St. 35. El. 5. St. 3. jac. 2. have been of late years attainted by Act of Parliament, and their lands and goods given as forfeit to the King: As it appeareth by the stat. of Anno 29. H. 6. 13. El. 29. El. 35. El. 3. jac. The forf. of the year, day, and waste. 31 There is another forfeiture besides the loss of life, lands, annuities, Fi. Cor. 310 290. 327. and goods, wherewith the law hath devised to punish those that do commit petit Treason, or Felony, and be attainted thereof, which is called in Latin the forfeiture of Diem, annum, & vastum, the forfeiture of the year, day, and waste, which is executed upon the houses and lands of the offendor, that be holden of any other, saving of the king: That is, the felons houses and lands shall be seized into the King's hands, where they shall remain by the space of a year, and day, and then the houses shall be thrown down to the ground, the trees shall be pulled up by the roots, the meadows shallbe ploughed up, and all things which the fellow did build or plant, shallbe cast down, digged up, Fitz. Cor. 358. and supplanted: Which punishment was ordained in despite of offenders, and to show to others, how much the law doth detest murderers, committers of burglary, robbery, and other felonies, and as much as may be to terrify and discourage others to attempt or practise the like. 32 It appeareth by Bracton, that by the common law the King should have had but only the waist of a Felons lands, viz. the benefit to pull down his houses, root up his trees, plough up his meadows, and such other commodities, as he could have raised by spoiling and wasting of the felons houses, trees, and lands, and that then the land so wasted should have been presently delivered to the Lord of the fee of whom the same lands were holden, which waist and spoil was then made without redemption. And after by a composition made between the King and the Lords, it was agreed, By what means the K. came by the year, day, and waste. That the King should have the benefit of the felons lands a year and a day, to redeem the spoil and waste which he might make of the said felons lands. And the K. grant by the great Charter made Anno 9 H. 3. St. 9 H. 4. 3 22. tendeth to the same effect, viz. We will not hold the lands of those that be convict of felony, but a year and a day, and then they shall be delivered to the Lords of the fees. And so it seemeth, that King Henry the third, and King Edward the first, did hold themselves satisfied with the year and day of the felons lands, without taking the waist thereof. St. 17. E. 2. 16 But after Anno 17. Ed. 2. the Kings Prerogatives royal being expressed, or enacted by Parliament, amongst others it is ordained, That the King shall have all the goods of felons which be condemned, and which be fugitive, wheresoever they be found: And if they have any freehold, it shall be forthwith seized into the King's hands, and the King shall have the profits thereof by the space of a year and a day, and the land shall be wasted and destroyed in the houses, woods, and gardens, and in all things belonging to the same (except men of certain places privileged) And after the King hath had the year, day, and waste, the land shall be restored to the chief Lord of the same fee, unless that before he redeem the same year, day, and waste, of the King, by the payment of a fine. But there is a custom in the County of Gloucester, that after a year and a day the lands and tenements of Felons in that Shire, shall revert and be restored to the next heir to whom they ought to have descended, if the felony had not been committed. And in Kent in Gavelkind, the father to the bough, the son to the plough, there all the heirs males shall divide their inheritance, and likewise women: but women shall not make partition with men. 33 By force of which stat. of Praerogativa Regis, The year, day, and waste of lands, of what title, shallbe forfeited. ever since that time the King hath had all the three things aforesaid, viz. the year, the day, and the waist of the lands of him which was attainted of felony, as one of the prerogatives annexed to the Crown, in all cases where the fellow had such an estate in his land, Bracton de Corona, cap. 13. that he might forfeit the same after his death, and that he himself might lawfully have made waist in the same, without being impeached therefore. And therefore if the fellow be but tenant for the term of life, or for the term of years of lands, the king shall not have the year, day, and waste of them, after the felons death, for than he might waste another man's inheritance. But if a man that is seized of lands in the right of his wife, do commit felony, and is attainted thereof, the king shall have the profits of the land during the husband's life if the wife do live so long. Fitz. Cor. 327. And some do affirm, that the king shall have the year, day, and waste of the said wives lands, after the felons death, because the fellow during his life might have committed waist therein, and for that the fellow had such an estate in his wives lands, that by the common law he might in his life have made alienation of them, and driven his wife to her Cuiin vita, to have recovered them. But that seemeth to be helped (if any such law were before) by the Statute of Anno 32. H. 8. where it is ordained, That no fine, feoffment, or other act, made, suffered, St. 32. H. 8. 28 or done by the husband only, of any lands, tenements, or other hereditaments, being the inheritance or freehold of his wife, during the coverture between them, shall in any wise be, or make any discontinuance thereof, or be prejudicial or hurtful to the said wife, or her heirs, or to such as shall have title, interest, or right to the same, by the death of such wife: But the same wife, or her heirs, and such other to whom such right shall appertain after her decease, shall and may then lawfully enter into such lands, etc. according to their rights and titles therein, notwithstanding such fine, feoffment, or other act (fines levied by the husband and wife, whereunto the said wife is party and privy, only except.) By which Statute the wife after the death of her husband, may enter into her own land, notwithstanding any attainder, forfeiture, or other act done by her husband. No year, day, and waste of lands holden by joint purchase. 34 A man seized of land in fee simple, holden of a common person, did enfeoff thereof the husband and wife, and their heirs, the husband committed felony, and was attainted thereof, the King seized the land into his hands, for his year, day, and waste, and after the Kings said term expired, 4. E. 3. 47. the Lord of the fee of whom the same land was holden, did sue in the Chancery to have the same land restored to him, to whom, by warrant, the Escheator did deliver the same lend, upon whose possession the wife of the fellow attainted did enter, and the said Lord of the fee re-entered upon her, whereupon the said woman brought an Assize against the said Lord, and recovered the land: Because the fee simple of the same land being in the wife, by reason of the joint purchase with her husband, the K. ought not to have had the year and day after the felons death, nor the Lord of the fee the land after by Escheat. 35 If tenant in tail Tenant in tail. general or special, or tenant in frank marriage of land, do commit petit Treason, or Felony, and is attainted thereof, and executed, the King after his death shall neither have the year, day, or waste in the felons land; nor the Lord of the fee shall have the land by Escheat, but after the felons death the same land shall descend, revert, or remain secundum formam doni, to the next heir in tail of the fellow, or to him in the reversion or remainder thereof: for in this case the fellow was in effect but tenant for the term of his own life, and thereby could not forfeit a greater estate in his land, than that which he had. And in in like sort if he that hath land by fresh disseisin, or is tenant in fee farm of land, A disseiser. Tenant in fee farm. A mortgagée. upon condition to pay the uttermost yearly value thereof, or hath land in Mortgage, to be redeemed by the Mortgager, upon condition of payment of money, or other condition, doth commit petit treason, or felony, and is attainted thereof, the King shall not have the year, day, and waste, for that would tend to the prejudice of others, not party to the offence, who have, or may have a better right and title to the same lands than the fellow attainted. Fi. Cor. 310 36 If a man that is owner of land in ancient demesne, Tenant in ancient demesne. which he may sell without consent of the Lord, do commit petit Treason or Felony, and is attainted thereof, the King shall have the year, day, and waste, notwithstanding that he hath used to surrender the land into the Lords hands by a rod in the Court, upon every alienation thereof. But if he be owner of the land in ancient demesne of a base tenure, it is otherwise. Fitz. Cor. 290. 37 A man that took a Church for felony escaped, and the town pursued, The year, day & waist without attainder. and killed him, because he would not yield himself; and this matter was presented before the justices in Eyre, and they adjudged, that his goods, and the profits of his lands, should be forfeited to the King, from the time of his flying until the presentment; and also that the King should have the year, day, and waste. S. Br. 30. But this land shall not come to the Lord of the fee by Escheat, because he was not attainted of felony. Pi. Cor. 332 38 The King shall not have the year, day, The year, day and waist of a Clerk convict. Land of small value. and waste of the lands of a clerk convict, neither shall the Lord of the fee have the forseiture thereof, for that the offendor is not attainted, but only convict of felony. And if the land of the fellow attainted, be but of the yearly value of three or four shillings, or of so small value, Fi. Cor. 327 that it will cost more to obtain it by suit out of the King's hands than it is worth, than the King shall not have the year, day, and waste thereof. St. 17. E. 2. 16 39 The words of the foresaid Stat. of Praerogativa Regis be (If they have any freehold, When the K. shall have the felons year, day, and waste. it shall be presently seized into the King's hands) This word presently, aught to be intended immediately after the Office found, and not before: 49. E. 3. 11. Fitz. N. B. fol. 144. And therefore if an Office of that land be not found until it be many years after the felons attainder, yet from the time of the Office found, until a year and a day after, the King shall have the Felons lands. And also the King shall have the profit of the Felons lands, from the time of his attainder, until the Office be found thereof, though it be twenty years between the attainder and the Office: for the heir of the fellow cannot have it in respect of the corruption of blood: And the Lord must not have it by Escheat, until the King be entitled unto it by Office, and until one year and a day after, and until the King hath wasted it, unless the Lord doth agree with the King in the mean time, for the said year, day, and waste. And moreover, Fitz. Traverse 48. 4. E. 3. 47. the Lord cannot at any time enter into the same land as escheated unto him, until he hath sued a writ to have it delivered unto him out of the King's hands: for after a writ is awarded to find the land of him that is attainted of Felony, another Writ shall be directed, to inquire if the King hath had the year, Regist. fol. 165. day, and waste: and that being found, the Lord shall have the land out of the King's hands, and not before: because though the attainder of the Felon was found, and that the King ought to have had the year, day, and waste, yet it may be that the King never had the profit thereof, but was interrupted by some p●●●on, or by some casual means. 40 This commodity to the King, and forfeiture of the fellow, of the year, Fit. Cor. 310 day, and waste, is such a benefit to the King, and so firmly and highly annexed to the Crown, The year, day, and waste, not grantable from the Crown. that it cannot be severed from it, or granted to any other: neither can any person claim it by colour of any franchise or liberty. But after the King is entitled unto it by Office, he may grant or commit the land to another during the year and day, and also give him authority to take the benefit of the waist. What goods of felons the king shall have 41 The words of the foresaid stat. of Praerog. Regis be (The K. shall have all the goods of felons which be condemned, and which be fugitive) which is as much to say, as he shall have all their goods, movable and unmovable: for the King shall have the corn growing upon the land of the fellow attainted, and the issues and profits of the land, which he hath in his own right, or in the right of his wife, during the time of his life, or until he doth purchase his pardon. But touching the profit of fugitives lands, there is a difference between a flying presented before the Coroner, and a flying found by verdict upon an acquittal: for upon a flying presented before the Coroner, Forfeiture upon flying. Fi. Cor. 296 344. he shall forfeit the profits of his lands, until his death, or until he be acquit, or until he hath purchased the K. pardon: but upon a flying found by verdict, upon acquittal, he shall forf. no issues of his lands, for by his acquittal the land is discharged, and consequently the issues thereof. From what time forf. of land shall have relation. 42 The law hath restrained offenders in Treason and Felony to certain times, to make alienation of their lands and goods, and hath prefixed limits whereunto the forfeiture of their said lands and goods shall have relation; and yet with this difference, That as soon as any Treason or Felony is committed, the offendor therein is restrained to make any alienation of his lands, for than it is not his land, but by the committing of the Treason or Felony, Pl. Com. 263. 30. H. 6. 5. Bracton. Fitz. Forf. 30. Bracton l. 2. 13. he hath forfeited all the estate which he had therein. And therefore, if between the time of the committing of the Treason or Felony, and of the offenders attainder thereof, the offendor doth make any alienation or assurance of his land, after the time that the offendor shall be attainted of the same Treason or Felony, the said assurance shall be void, whether the same attainder be by verdict, confession, or outlawry: for the forfeiture of the land shall have relation from the time of the offence committed. From what time the forf. of goods shall have relation. 43 The forfeiture of goods and chattels shall not look back so far as forfeiture of lands, nor shall have relation from the time of the Treason or Felony committed, but from the time of the attainder of the Treason, or Felony: And therefore if one do commit Treason, or Felony, Fi. Forf. 30 and in the mean time between the Treason or Felony committed, and the offenders attainder thereof, the offendor doth give away his goods, this is a good gift, for as yet they be not forfeit, but be his own to maintain himself and his family, until he be attainted of Treason, or Felony, and by the Law adjudged not worthy to possess or enjoy goods, nor to have sustenance. And therefore, if upon a fugam fecit presented before the Coroner, one do forfeit his goods, he shall not forfeit those goods that he had at the time of the Felony committed, but he shall only forfeit those goods which he had at that day, when the fugam fecit was presented against him. And in like sort, if one that is indicted of Felony be acquit thereof by verdict, and in their verdict the jury do find, Fi. Cor. 296 that the prisoner did fly for the Felony, in this case the same prisoner shall forfeit those goods which he had the day of the verdict given, and not any goods which he had before. And so it is, if one be convict by verdict, 7. H. 4. 41. the goods shall be forfeited which the offendor had the day of the verdict given, and not those which he had before. And he that is outlawed of Treason or Felony, shall forfeit those goods which he hath at the time of the Exigent awarded, and not those which he had before, and hath aliened. But if a man do commit a Treason or Felony, and is arrested thereof, and as he is in carrying to a justice of Peace to be examined, or to the jail by the Constables, or others, do break away, or in making of rescous or resistance is slain by those which do so carry him, because he will not yield, and be justified by the law: Fi. Cor. 290 in this case those goods shallbe forfeited, which he had at the time of the felony committed. And so it is, if one commit a Felony, and when the Sheriff, Coroner, Constable, or others do attempt to apprehend him▪ he is slain because he doth resist, and will not yield to be arrested, the goods shallbe forfeited which he hath at the time of the felony committed. 44 It appeareth by the statute of 3. Ed. 1. St. 3. E. 1. entitled Officium Coronatoris, Who shall seize and keep Felons goods, and when. That if any person be found guilty before the Coroner of the death of another, presently the Coroner shall go to his house, and inquire what cattle he hath, and what corn he hath in his grange, and what on the ground, and if he be a Freeman, what land he hath, and how much it is worth by the year: and when they have so inquired of all things, they shall cause the land, the corn, and cattle to be priced, as if they should be forthwith sold, and immediately they shall be delivered to the whole Town, to answer for the same before the justices. And in like sort, when it is found before the Coroner, that one did fly for a Felony, 22. Ass. p. 96 the Sheriff shall presently seize his lands into the King's hands by word, without inquest, and also shall seize all his goods into the King's hands, and shall appraise them by an inquest (as well of Villains as of Freemen) and the prices shallbe enrolled in the Coroners Roll, and delivered to the Town, to answer to the King for the same: for by that which is found before the Coroner, the goods be forfeited, without further inquiry. 43. E. 3. 24 And so may another Officer of the Kings seize the goods of a Felon before attainder, and if the Felon doth find surety, the Officer must leave them in his custody. But whether he doth find surety, or not, the Officer ought not to carry them away, but must leave them in the custody of the Felons neighbours: For if one be indicted of Felony, his goods shall not be removed forth of his house until he be attainted, 7. H. 4. ●1 but shallbe kept by his neighbours all the time of his imprisonment, and the Felon shallbe maintained with them. And according thereunto there is a writ in the Register, Registrum. viz. Quod tenementa & bona taliter capta, videantur & imbreviantur, & saluo custodiantur per balliwm ipsius capti, qui securitatem Regiinueniet ei respondendi, si etc. saluis inde ipfi capto & familiae suae necessarijs quamdiu fuerit in prisona. By which writ it doth appear, and also by the assertions of Bracton and Britton, that one which is indicted or imprisoned for Felony, shall not be put out of the possession of his goods, until he be convict of Felony, but he must have reasonable maintenance of his goods for him and his family, until he be convict, and then that which doth remain shallbe the kings. And yet the fellow must not disorderly sell or waste his goods: and so this difference is to be observed in seizing of a Felons goods, viz. where the goods be forfeited before the felony tried, and where they be not forfeited until the felony tried: For if they be forfeited before the felony tried, they shallbe presently seized upon the forfeiture of them, though there be no conviction of felony (as in the foresaid cases, where one is found guilty before the Coroner of the death of another, or where it is found before the Coroner, that one did fly for a felony:) But if they be not forfeited until the felony tried, than they shall not be seized, until the Felon be convicted. The goods of a prisoner shall not be seized until he be attainted. 45 And because that divers persons were often arrested and imprisoned for suspicion of Felony, sometime of malice, and sometime of light suspicion, and were kept in prison without bail or mainprize; and for that sometime sheriffs, escheators, bailiffs of Liberties, and others, did seize and take away the goods of some persons arrested or imprisoned for Felony, before the same person was convict or attainted of the same Felony, contrary to the common law: Therefore partly to confirm the common law, and partly to give to the party grieved a more ample recompense for his wrong received then the common law before did, viz. to give him the double value of his goods so taken or seized, where the common law gave him the single value, and partly to give him a speedy remedy to recover the same, there was a stat. made Ann̄ 1. R. 3. St. 1. R. 3. 3 by the which it is ordained, That no Sheriff, undersheriff, Escheator, Bailiff of Franchise, or other person, shall take or seize the goods of any person arrested or imprisoned, before the same person or persons so arrested or imprisoned be convict or attainted of such felony, according to the law of England: or otherwise that the same goods be in some manner lawfully forfeited, upon pain to lose the double value of the goods so taken, to him or them which be endamaged thereby, by action of Debt in this behalf to be pursued, by like process, judgement, & execution, as is commonly used in other actions of Debt pursued at the common law, wherein no wager of law, essoin, or protection shall be allowed: This stat. of 1. R. 3. extendeth only to those that be arrested or imprisoned: for notwithstanding this statute, the sheriff may seize the goods of them which be at liberty and indicted of felony, at the second Capias, by force of the stat. of 25. E. 3. St. 2● E. 3. 14 as it appeareth Appeals 59 46 The custody of the goods of those which be convict of Felony, Who shall have the custody of felons goods forfeited. or which be Fugitives, after they be forfeited, doth belong to the Town where the same goods be, or where the Felon both dwell: and therefore upon a fugam fecit presented before the Coroner, 22. As. p. 96. the goods ought to be seized by the Sheriff, and praised by an inquest, and the appraisement must be enrolled in the Coroners Roll, and the goods shallbe delivered to the town, to answer to the king for them: Fi. Cor. 366 and though the goods be not delivered to the town, yet if the goods were in the Felons possession at the time of his conviction, or flying, the town shall answer for them. And some do affirm, that the sheriff and the Dozeners may seize Felons goods into the king's hands, and the sheriff shall deliver those goods to the town, to answer to the king at the coming of the justices in Eyre: But if neither the Sheriff nor the Dozeners do seize the same goods, yet the town shall answer to the king for them at the coming of the justices in Eyre: For as soon as a fugam fecit is found before the Coroner, Fi. Forf. 32 the town shallbe presently charged with the goods of him that did fly away. And though it be presented before the justices, that a Felon was delivered to the sheriff with the manor, and with all his goods, yet the town shallbe charged with the said Felons goods, though the same was found, and presented with intent to ease or discharge the same town. And in like sort, notwithstanding it doth appear by the Coroners Roll, Fi. Cor. 300 that the goods of a Felon were delivered to one man of the town, yet the king shall levy those goods of the whole town. But when the sheriff doth come to levy those goods of the town, by the sheriffs consent they may be levied of him only who had them in custody. Fit. Co. 181 One that was indicted of Felony, appeared at the Exigent, and pleaded, and was acquit, and his goods being forfeited, because he did not come in before the Exigent awarded, were praised by the inquest, which acquitted him at forty shillings: and the same inquest found what town was charged with them, which said presentment of the inquest was enrolled, and it was adjudged, that the same town may seize the same Felons goods in what place soever they can find them. And because the town where the Felons goods be, shall answer for them, therefore they which do take into their possession any of the same Felons goods, and other goods which do belong unto the king as Deodands, and such like, are to be amerced by the justices in Eyre, if the same goods be not delivered unto them by the town, which hath the charge of them, for that the same town hath the custody of them. But by a Statute made Anno 31. Ed. 3. St. 31. E. 3. 3 the town shallbe eased of this charge, if they can show what other person hath detained those goods, and that they could never have possession of them: the words of which statute be: If any man or town be charged in the Exchequer by the Estreats of the justices, of the goods of Fugitives and Felons, and he will allege in discharge of himself, another that is chargeable, he shallbe heard, and right shallbe done. And therefore if it be found by office before the Escheator, that the goods of a man attainted of Felony be in the custody of such a person: in this case a Scire facias shallbe awarded upon the same office against the said person, to show if he hath any thing to say why he should not answer those goods. But if it be found by the inquest, which did attaint the Felon before justices of jail delivery, justices of Oier and Determiner, or justices of Peace, that any person doth detain the goods of a Felon attainted, the said justices cannot award process thereupon against the party, that doth detain the same goods, but they must send their Estreats into the Exchequer, and the officers of the exchequer will award process against the same party to levy the same goods. And yet if he that is presented to detain the same goods, do find himself grieved therewith, he cannot have a Traverse in the Exchequer to that which is found by the jury, because the court of Exchequer hath not the record before them, neither can he traverse the same before the justices of jail delivery, justices of Oyer and Determiner, or justices of peace, for that they cannot award a Supersedeas to the Barons of the Exchequer to surcease their Process. But his only remedy in this case is, to procure a Certiorari to remove the Record into the King's Bench, and there to tender his traverse, and averrement, and to have a Supersedeas from thence to the Barons of the Exchequer, to surcease their Process. And the same law is, if the like thing be found by an inquest in the King's Bench, after they have delivered their Records thereof into the Exchequer. And a man which was indicted for the taking of goods of one that was attainted of Treason, was put to the answer thereof: So that since the said statute of 31. Edw. 3. others have been charged with felons goods, as well as towns. But the Sheriff was always charged with the profits of felons & fugitives lands, Fi. Cor. 39● according to the extent thereof, The Sheriff charged with felons lands. and not any town: And so he was charged with goods confiscate: as, where upon an indictment of felony, Fitz. Cor. 355. 368. the manor is brought into the Court, and the party indicted doth disclaim therein, by this disclaimer the King shall have the manor, and the Sheriff shall be charged therewith. And the same manor shall be praised by the inquest that doth try the felony: and if it be found by the same jury, that it was impaired by the Constable, or any other who had the same in keeping, the Sheriff shallbe commanded to levy so much in value, as it was impaired by the said Constable, or other. And in some cases the Sheriff shall be charged with a felons goods, Fitz. Cor. 290. 308. and not the town where the fellow did dwell, or where his goods remained: but that must be by agreement between the said Sheriff and the town. To whom the forf. of lands for high treason shall accrue 47 In High treason the King shall have the forfeiture of the offenders lands, of whom soever they be holden, and that by the common law: for the offence committed is not to any subject, but to the Sovereign governor himself, his Crown, and Realm, which is an offence of so high a nature, that it cannot be recompensed with all that the offendor hath, and then it should be less countervailed, if any other should be partaker with the King therein. And the mean Lords shall receive no loss thereby, for they had nothing in the land but a Signiory out of it: And if they hold over of the King by the like services, then have they lost nothing, for that they be discharged of their charge and services, which they did hold by, which was as much as they received of the tenant peravaile: And if they held of the King by less rent than their tenant peravaile held of them, they shall have the surplusage of that which was holden of them, of the king, by the way of petition. Fitz. Assize 124. Fitz. Petition 19 And if the king do not keep the land so escheated unto him in his hands, but will assure it to another, he must revive the tenure in the Mesne Lord, to hold of them of whom it was holden before the attainder. It appeareth by the statute of Praerogativa Regis cap. 12. That the Kings and whole Court of Parliaments meaning was at that time when it was published and established by Parliament, which were the Prerogatives royal, annexed to the Crown of England by the common law, That of such lands as did escheat to the King, the service of the Lord of the fee should be reserved: for the words of the Statute be these, viz. St. 17. Ed. 2. 12. The King shall have escheat of the lands of Normans, to whose see soever they belong: Saving the service appertaining to the chief Lords of the same fee. And King Henry the third gave the escheats of Normans lands to be holden of the chief Lords of the Fee, by Services and Customs due and accustomed thereunto. Some of which Normans dwelling in Normandy at that time had lands in England, and were subjects to the King of England, and did forsake their obedience to the King of England, and became subjects to the K. of France, the King of England's enemy, and thereby did forfeit those lands which they had in England, by the common law, and they did escheat to the king. 48 In Petit Treason, Who shall have the forf. in petit treason and felony. and Felony the king shall not have the escheat of the offenders land, unless it be holden immediately of him: but the king shall have the profits of the said offenders land by the space of a year and a day, and the land shall be wasted and destroyed in the houses, woods, and gardens, and in all things belonging to the same, and then it shall be delivered to the chief Lord of the fee, of whom the same land is immediately holden. And yet in some cases the King shall have the forfeiture of the land of him which doth commit Petit Treason, or Felony, though the land be holden of others, and not of him, St. 17. E. 2. 14. as it appeareth by the Statute of Praerogativa Regis, which hath ordained, That the king shall have the escheats of lands of Archbishops and Bishops, freeholders, when such tenants be attainted of Felony committed in time of vacation, whilst their temporalties were in the King's hands, to bestow in what sort it shall please him: Saving to such Prelates the service that to them is due and accustomed. And therefore saving in the cases aforesaid, the mesne Lords of whom the lands be immediately holden, shall have their escheats of their freeholders lands, that have committed Petit Treason or Felony, which land after the King hath hath had the year, day, and waste thereof, they must have delivered unto them out of the king's hands, by suing out of a writ. S. Br. 39 49 If any stranger, The Lord's remedy for lands escheated unto him. or other (saving the King) doth intrude into that land whereof the fellow attainted was seized at the time of the felony committed, the immediate Lord of the fee of whom the same land is holden, may enter upon him, and put him out, or else he may have his writ of Escheat against him: In the which writ he must rehearse the judgement given against the person attainted, viz. if he were attainted by outlawry, to allege, Eo quod praedictus A. feloniam fecit pro qua utlagatus fuit, and if he were attainted by abjuration, to say, Pro qua regnum nostrum abiuravit, and if he were attainted by confession or verdict, to say, Pro qua suspensus fuit: and if he do allege one of those judgements, Fitz. Escheat 14. Fitz. Escheat 8. Fitz. Escheat 6. in the stead of another, his writ shall abate. And yet he need not rehearse the manner of the felony in his writ, nor in his count, but generally that he committed felony. And though there be error in the judgement, yet the Lord shall have a writ of Escheat, and the tenant shall not falsify the judgement by the error. 46. E. 3. 4. 50 Island escheat to the ancestor, The heirs remedy for land escheated to his ancestor. because his tenant was attainted of felony, and the ancestor dieth before he doth bring his writ of Escheat, or doth enter; In this case the heir may have a writ of Escheat, and suppose that the party attainted did hold of his ancestor. Fitz. Escheat 17. 51 If a lease of land be made for the term of life, reserving to the lessor a rent, and the lessor payeth his services to the chief Lord, and then the lessor is attainted of felony, Where the Lord shall have his writ of Escheat, and where he may enter. and after the tenant for term of life dieth: In this case the Lord paramount may have a writ of escheat of the land: for the rent which was reserved upon the lease, doth come in stead of the land, and so in the consturction of law he died seized of the land. But if no rent had been reserved, the Lord might have entered into the land as escheated unto him, 6. H. 7. 9 but could not have recovered it by a writ of Escheat, no more than if his tenant being disseised, had been attainted of felony, in which case his only remedy is to enter. The form of a 〈◊〉 of Escheat. 52 This is the form of the writ of Escheat. Rex vicecomiti B. salutem: Praecipe A. quod just & sine dilatione reddat B. decem acras terrae cum pertinentijs in N. quas C de eò tenuit, & quae ad ipsum B. reverti debent tanquam Escaeta sua, eò quod praedict' C. feloniam fecit pro qua suspensus fuit, ut dicitur: Vel pro qua utlagatus fuit, ut dicitur: vel pro qua regnum abiuravit, ut dicitur. Et nisi etc. And though the indictment was executed in other manner than is rehearsed in the writ, yet the writ shall not abate, Register. fo. 165. as if he were Decapitatus & non suspensus, for the execution of the judgement is not material, so that he had such a judgement, for the action is true, though the writ be not true. The K. remedy for land escheated to him. 53 In all cases of felony, if the king ought to have the escheat, he must have an office found for him before he can enter: for until the office found, the king hath but a possession in law, and not in deed, notwithstanding the death of him which is attainted. But by the stat. of an. 33. H. 8. the king shall have the lands, St. 33. H. 8. 20. goods, cattles, and all other things of the offenders attainted of high Treason, without any office: the words of which stat. be these, viz. If any person or persons shallbe attainted of high Treason, by the course of the common laws, or statutes of this realm, in every such case every such attainder by the common law, shallbe of as good strength, value, force, and effect, as if it had been done by authority of Parliament. And the K. his heirs and successors, shall have as much advantage by such attainder, as well of uses, rights, entries, conditions, possessions, reversions, remainders, and all other things, as if it had be done and declared by authority of Parliament, and shallbe deemed and adjudged in actual and real possession of the lands, tenements, hereditaments, uses, goods, chattels, and all other things of the offenders so attainted, which his Highness ought lawfully to have, and which they so being attainted ought or might lawfully lose and forf. as if the attainder had been done by authority of Parliament without any office or inquisition to be found of the same: Any law, statute etc. notwithstanding. By force of which stat. the King shall be in actual and real possession of those lands which do escheat unto him by any attainder of high Treason, An office of those lands which do escheat for felony. without any office or inquisition thereof found: though for those lands which do escheat unto him by any attainder of felony, there must be an office found for him, before he can enter, according to the ancient course of the common law. Forf. of title of Dower. 54 By the common law any man attainted of Treason or felony, should have forfeited that title which his wife had by their espousals to be endowed of his lands, to the intent, that if the care of his own life could not stay him from the committing of felony, or treason, yet the love which he did bear to his wife and children, should restrain him thereof, whom he was assured by that wicked act to undo, and utterly to deprive them of all likelihood wherewith to maintain them. And some do affirm, that this law was at the first devised, to punish the wise, and to avoid her dower, for that it was intended, that the wife gave consent unto, or at the least did know of the Treason, or Felony, which her husband committed, and either by entreaty, persuasion, or some other means, might have withdrawn him from it. But the common law in that case is altered by the stat. of Anno 1. Ed. 6. St. 1. E. 6. 12 whereby it is enacted, That albeit any person or persons, of what estate, condition, or degree he or they be, shall fortune to be attainted, convicted, or outlawed of any Treason, petit Treason, Misprision of treason, Murder, or Felony whatsoever, yet that notwithstanding, every woman that is, or shall fortune to be wife of the person so attainted, convicted, or outlawed, shallbe endowable, and enabled to demand, have, and enjoy her dower, in like manner and form as though her husband had not been attainted, convicted, or outlawed: Any statute, law, custom, etc. notwithstanding. But after, some part of the foresaid stat. of Anno 1. E. 6. was altered by a branch of a stat. St. 5. & 6. E. 6. 11. made Anno 5. & 6. Ed. 6. whereby it was provided and enacted, That the wise, or wives, whose husband, or husbands hereafter shallbe attainted of any Treasons whatsoever they be, shall in no wise be received to ask, challenge, demand, or have dower of any the lands, tenements, or hereditaments of any the person or persons to be attainted of treason, as is aforesaid, during the said attainder in his force. And yet sithence the foresaid stat. of 5. & 6. Ed. 6. it was specially provided and ordained by the stat. made Anno 5. El. 1. & Anno 5. El. 11. & An. 18. El. 1. That the husband's attainder of treason, by force of any of the foresaid stat. should cause no forf. of dower in the wife S. Br. 27. Br. Appeal 117. Fitz. judg. 225 Plo. Com. 261. 55 If in an Appeal the appellee do wage battle, What the appellee that wageth battle, shall forf. and the Appellant doth slay him in the field, the Appellee shall forf. all his goods & chattels, but his land shall not escheat: for inheritance is so greatly favoured, that it shall not be forf. without attainder by judgement. But if the Appellant do vanquish the Appellee, than his land shallbe forf. for when he is vanquished and not killed, judgement shallbe given, that he shallbe hanged, and by that means he shall forf. his land. 6. H. 8. Dyer 2. 56 If a man seized of land in fee, A rent charge pro consilio not forfeited. doth grant a rend charge out of the same to another for the term of the life of the grantee, pro bono consilio suo impendendo, with clause of distress within the same land, if the grantee of this rend charge be attainted of treason, and committed to prison, yet he shall not forf. this rend charge to the K. for it is incident to the cause for the which it was given, viz. to the counsel to be given by the grantee to the grantor, which was a trust that the grantor reposed in the grantee to give him counsel, which trust the grantee cannot assign or forf. to another. And though the grantee of this rend charge be attainted of treason, and imprisoned, yet the grantor may come or send to him for his counsel, and he may give it him, and so there will be no fault in him. But if a man do purchase a rend charge for the time of his life, out of another man's lands, in consideration of a sum of money paid by the grantee to the grantor, and after the grantee is attainted of treason or felony, the same rend charge shallbe forf. to the K. and paid to him during the life of the grantee. S. Br. 27. The forfeitures of an Outlaw. 57 Out of all which foresaid forfeitures, Bracton, de coron, c▪ 13 the words of Bracton may be verified, who writeth, That a man outlawed (or otherwise attainted of Treason or Felony) shall forfeit his country and kingdom, and shall become a banished man, who in English is called an Outlaw. And in former times he hath been termed a Friendless man, and so he hath seemed to forfeit his friends: for if any man after his Outlary doth willingly feed him, receive him, keep company with him, or hide him, he shall be punished in the same sort that the Outlaw shall. Also he shall forfeit all things which be peaceable, seeing that from the time he is an Outlaw, he carrieth a Wolves head, so that all men may kill him without punishment, and specially if he defend himself, or fly away, in such sort that he may be hardly apprehended. But if he do not fly, or defend himself, than he that killeth a man so taken, shall answer for him, as for any other man, for that life and death be in the king's hands, unless there be a custom to the contrary, as in the Counties of Hereford and Gloucester. And he shall forfeit the benefit of Law: for he which being outlawed will be so bold, as to return without the king's licence, shall die without law, or further examination in judgement. And he cannot appeal others, for he hath lost the benefit of law, and carrieth with him his judgement upon his head, & he can have no defence, so long as the Outlary standeth in force. It is upright justice, that he shall perish without law and judgement, who refuseth to live according to the law. And he shall forfeit his right and possession of all things that he hath gotten, or may get. And all bonds, obligations, homages, fealties, oaths, and other contracts made with him, be dissolved, which can never be revived but upon a new contract, though he be restored. And he shall forfeit all his tenements and hereditaments from him and his heirs, and every action that was due to him before his Outlary, though he be after restored by the king's pardon. And Outlary of felony, and every other judgement of felony, doth dissolve all the gifts & sales of land that he made sithence the time of the felony committed. The outlaws goods shallbe the kings, for he cannot be outlawed in any other place, but in the king's Court, as in the Country Court, or in the Hustings of London. ❧ Corruption of Blood. 1 BY attainder of Treason, or Felony, cometh corruption of Blood: that is to say, that the offenders children cannot be heirs to him that is attainted, nor to any other ancestor. Corruption of blood salved by Parliament only And if the offendor were a Nobleman, or a Gentleman before, by this attainder he is become ignoble, and not only he himself, but also all his children, having respect to the Nobility, which they had by their birth. And this corruption of Blood is so grievous, that it cannot be salved otherwise then by authority of Parliament. But if the King will pardon the offendor, it will cleanse the corruption of blood of those children, which be borne after the pardon: and they which be borne after the pardon, may inherit the land which their ancestor purchased at the time of the pardon, or after; but so cannot they which were borne before the pardon. And also he that is attainted of Treason or Felony, shall not be heir to his father, but his disability shall hinder others to be heir, so that during his life, the land shall rather escheat to the lord of the fee, 27. Ed. 3. 77. Fi. Petit. 20 then descend to another. But if he that is attainted do die without issue of his body, during the life of his ancestor, than his younger brother, sister, or cousin shall inherit: for if the eldest son be hanged, Fi. Descent 6. 26. As. p. 2. or doth abjure the Realm for Felony, during the father's life, it is no impediment, but that the youngest son may inherit. 29. As. p. 11 13. H. 4. 8. Fit. Descent 17. And if he which is attainted of Treason or Felony in the life time of his ancestor, do purchase the King's pardon before the death of his ancestor, yet he shall not be heir to his said ancestor, but the land shall rather escheat to the lord of the fee. But if the eldest son be a Clerk convict in the life of his father, and after his father dieth, in this case he shall inherit his father's land, because he was not attainted of Felony, for by the common Law he should have inherited after he had made his purgation. And now by the Statute of Anno 18. Eliz. he shall be forthwith enlarged after burning in the hand, Fi. Cor. 382 St. 18. Eli. 6. and delivered out of prison, and not committed to the Ordinary to make his purgation, and so he is in case, as if he had made his purgation. Where corruption of blood shall prejudice tenant by the courtesy. 2 If a man that hath land in the right of his wife, have issue, 13. H. 7. 17 and doth commit Felony, for the which he is attainted, and the king doth pardon him: in this case, if his wife do die before him, he shall not be tenant by the courtesy, for the corruption of blood of that issue. But it is otherwise, if he hath issue after the pardon, for than he shall be tenant by the courtesy, although the issue which he had before the pardon be not inheritable. The eldest son attainted of felony during his father's life. 3 If a man seized of lands hath issue two sons, 32. H. 8. Dyer 48. and the eldest is attainted of Felony in the life of his father, and is executed for the felony, or otherwise dieth during the life of his father, and after the father dieth seized of the land, the land shall descend to the youngest son, as heir to his father, if the eldest son hath no issue then living. But if the eldest son, that was attainted, hath any issue in life, which should have inherited but for the attainder, the land shall escheat to the lord, and not descend to the younger brother, for that the blood of the eldest brother is corrupted. Where an attainder, but n● corruption of blood. 4 S. Forfeiture 27, That the attainder of Treason or Felony in certain cases, shall not extend to make any corruption of blood, the disinheritance of any heir, forfeiture of any dower, nor to prejudice the right or title of any person, other then of the offendor or offenders, during his or their natural lives only. ❧ Restitution of stolen goods. 1 Having written of Robberies, and other Felonies, and declared how Felons are to be prosecuted by Arrest, Appeal, Indictment, Arraignment, Trial, and judgement, and what they shall forfeit, I mean now to show, how true men, whose goods were rob, stolen, or feloniously taken from them by such Felons, shall be restored to their goods again. As it is necessary for the Commonwealth, that Felons should be punished, lest the impunity of some should encourage them, and also allure others to commit the like offences: so is it fit, that they chiefly, whose goods were taken from them, and thereby have tasted the smart, and received the loss by the Felons, and are more likely to know who they be, and where they be, than others are, should do their uttermost endeavour to procure those Felons to be apprehended, brought to their answers, and to have them punished according to their demerits: that is to say, he that was rob, What is fresh suit. or whose goods were stolen from him, ought presently after the felony committed to pursue the Felon so hastily, that (if it be possible) he may take him with the manor, and thereupon bring his appeal against him, Fi. Cor. 379. and convince him of the Felony. And the said speedy and diligent pursuit of his, is called Fresh suit, which thing being found by a jury, the king ought to make restitution to the appellant of his goods contained in the appeal, which his officer or any other to his use did seize. But if it be not found by a jury, that the owner did make Fresh suit, the said owner shall lose his goods, and the king shall have them, although the Felon be convict at the same party's suit. For as the Law doth so abhor Felonies and Felons, that it punisheth a Felon with the loss of his life, his lands, goods, and all that he hath: so doth it in such sort condemn the concealing, winking at, or slack pursuit of a fellow, that it punisheth a true man with the forfeiture of his goods stolen from him, for omitting his duty in making fresh suit after, prosecuting, and pursuing to death of a known Felon. If the manor wherewith the Felon is taken be portable, or otherwise may be conveniently done, it ought to be brought into the Court before the justices: and if it be in a chest, box, cloak-bag, Fi. Cor. 392. or male, the appellant must declare the goods particularly which be in it, before it be opened, or that he can have it restored unto him again. And if the Fresh suit be made by the servant of him that is rob, and not by the party himself, Fresh suit by the servant. yet it is sufficient to procure him restitution of his goods. And if the Felon which committed a Robbery or other Felony be not taken by the space of a year after the Felony committed, yet if the party that was rob, or whose goods were stolen, do his endeavour to apprehend the Felon, and make diligent and special inquiry for him, and after he is taken, 7. H. 4. 43. though not at the suit of the party rob, or etc. yet that shall be adjudged a sufficient Fresh suit, and upon his appeal brought, and the offendor convicted, he shall have restitution of his goods rob or stolen. What conviction shallbe sufficient to give the owner restitution of his goods. 2 Though in former times it was not adjudged sufficient for the appellant to convict the offendor of Felony, but he must have attainted him thereof, before he could have had restitution of his goods: and if the Felon were in that case, that he could not be attainted at the owner's suit, he should not have had restitution of his goods, but they should have been forfeited to the king, Fi. Cor. 319 were the suit never so fresh. As, if the fellow being pursued by the party rob with hue and cry, did fly to a Church, and made his abjuration: H. 8. E. 3. 10. or that the Felon was in prison, and died before the owners appeal commenced. But now the law is otherwise construed: for it is thought to be a great extremity, that the party which was rob should lose his goods, when he hath done all that he could, & that there was no default in him. And therefore it is now agreed, Fi. Cor. 379 380. 26. As●. p. 32 Fit. Forfeit. 15. 8. H. 4. 1. 10. H. 4. 5 that if after the appeal commenced the Felon do die in prison, or do break the prison, and fly to a Church, and there abjure, the Fresh suit shallbe inquired of, and if it be found, the party rob shall have restitution of his goods. And in like sort, if the offendor will stand mute of malice, or challenge peremptorily above the number that the law doth appoint him, or will demand his clergy: in all these cases the Fresh suit shallbe inquired of, and if it be found, the appellant shall be restored to his goods, and yet in these cases the Felon is not attainted. But because the appellant hath done his endeavour, and all that is in him, to attaint the Felon, it is reason that he shall have restitution of his goods. When the owner shall have restitution. 3 Restitution shallbe granted and made to the owner of his goods stolen, 21. Ed. 4. 73. Fit. Co. 392 as soon as the Felon shallbe attainted or convicted by his appeal, & the Fresh suit shallbe found, though the appellant doth not pray, or sue execution of the body of the appellee: for the appellant hath prosecuted the suit so far, that he hath brought the fellow to the king's mercy; so that the appellant, nor any other for him, can stay or release the execution, but only the king: and therefore it is reason, that he now should have restitution of his goods. And some do affirm, that when the appellant hath so far prosecuted the appellee, 21. Ed. 4. 16. that he is outlawed, that the appellant shall have restitution of his goods, without inquiry of the Fresh suit, because he hath pursued the suit against the offendor, so far as he can. If an appeal be sued against the principal and accessory, and the principal is attainted, and the Fresh suit is found, 21. E. 4. 16, 10. H. 4. 5. the appellant shall have restitution of his goods, without suing against the accessary. And though he do continue his suit against the accessary, yet that shall not hinder his restitution, for that he hath procured the attainder of the principal Felon: and whether the accessory be attaint, or acquit, yet the appellant shall have restitution of his goods. And in like sort, if an appeal be sued against two as principals, and one of them is attainted, and the other is acquitted, and the Fresh suit is found, the appellant shall have restitution of his goods, for that it doth appear, that the appellant was rob of his goods, and had cause to sue: for though the appeal be found false in part, touching him that is acquit, yet that shall not prejudice the appellant, seeing that falsehood cometh not of his own declaration, but by the verdict of the Iury. If one man do rob divers men, whereupon they do bring their several appeals, and the Felon is attainted at the suit of one of them, 4. E. 4. 11. and that it is moreover found that he hath made Fresh suit: in this case the residue shall not have restitution, until the Felon be found guilty at their several suits, and the Fresh suit also severally found. 4 Before Restitution can be awarded of Felons goods, Before whom and by whom inquiry of fresh suit is to be made. an enquiry is to be made of the Fresh suit before the justices, and not before the Sheriff, (though it be but an inquest of Office) and it is to be done by the jury, that doth find the defendant in the appeal guilty of the Felony, unless it be in case, where the defendant doth confess the appeal of the plaintiff, and then it shall be inquired by the Visne, where the Felony was committed by the people of that County where the appeal is brought, except it be brought in London: for London hath such a privilege, that they shall not be drawn to appear upon juries out of the City: and the King's justices cannot go into the City, and take the same by Nisi prius, because it is but an inquest of Office: 1. H. 4. 5. 2. R. 3. 12. and therefore in that case they do inquire of it by people of the County where the Felon was taken, and from thence shall the Visne come. But first the Court is to inquire of the Defendant in the appeal, Fit. Forfeit. 15. if he do claim any property in the goods, or not, and if he claim nothing therein, than it must inquire, if the goods were the plaintiffs at the time of the Robbery committed, and moreover inquire of the Fresh suit. 5 By the common Law there was no help for the party rob by indictment of the Felon to recover his goods again, or to have restitution of them: Restitution upon attainder by indictment. for although the inquest which tried the Felon upon his arraignment, would after they had found him guilty of the Felony, Fi. Cor. 460. have said, that the party rob had made Fresh suit, yet that would not have availed to have procured him restitution of his goods. And therefore to redress that enormity, there was a statute made Anno 21. H. 8. by which it was enacted, St. 21. H. 8. 11. That if any Felon or Felons hereafter do rob or take away any money, goods, or cattles from any the King's Subjects, from their person, or otherwise within this Realm, and thereof the said Felon or Felons be indicted, and after arraigned of the same Felony, and found guilty thereof, or otherwise attainted by reason of evidence given by the party so rob, or owner of the said money, goods, and cattles, and that as well the Iust. of jail delivery, as other justices, before whom any such Felon or Felons shallbe found guilty, or otherwise attainted, by reason of evidence given by the party so rob, or owner, or by any other by their procurement have power by this act to award from time to time Writs of Restitution for the said money, goods, or cattles, in like manner, as though any such Felon or Felons were attainted at the suit of the party in appeal. And so by force of this Statute the party rob shall have restitution of his stolen goods, upon evidence given by him, or by any other by his procurement against the Felon, though he never made any fresh suit. S. Evidence 3. 4. Appeals 55. ❧ Damages in Appeal. 1 Justice and reason do require, that when a man's life, his fame, and credit, his lands, his goods, the disheritance of his posterity, the corruption of his blood, and all that he hath in this world to forfeit, hath been put in hazard, and brought into question and trial, without just desert, or other ground, but only upon the malicious accusation of some one or more people, and that he is found a true and lawful man, & duly acquit by the country of the offence, whereof he was appealed, that he should have recompense for it against his false accusor: and if his accusor be not sufficient, then against him or them that did procure or abet him to pursue the appeal. And therefore the common law did give damages to the defendant in an appeal, 48. Ed. 3. 22 and assigned him a mean to recover them, when he was acquit of the felony. But because the damages which were to be recovered against the procurors, or abettors, were to be recovered by writ original, viz. by a writ of Conspiracy, and not otherwise, which was not so speedy a remedy, as the great malice and wickedness of the offence required, the stat. of West. 2. was made for the quicker redress thereof Ann 13. Ed. 1. the words whereof be these, St. 13. E. 1. 12 viz. For as much as many through malice, intending to grieve others, do procure false appeals of homicide, and other felonies, to be sued by appellants, having nothing wherewith to satisfy the king for their false appeal, nor to answer to the party damages. It is ordained, that when any which is appealed of felony imposed upon him, doth acquit himself in the K. Court in due manner, either at the appellants suit, or the kings, The punishment of the appellant and abettors, when the appellee is acquit. the justices before whom the said appeal shallbe heard and determined, shall punish the appellant by one years imprisonment: and nevertheless, such appellant shall yield to the appellee damages by the Just, discretion, having respect to the imprisonment or arrest that the party hath sustained by reason of such appeal, and to the slander which he hath received by the imprisonment, or otherwise, & also he shall pay a grievous fine to the K. And if the appellants be not able to recompense the damages, inquiry shallbe made by whose abetment the appeal was maliciously commenced, if the appellee desire it. And if it be found by the same inquest, that any man is abettor through malice, he shallbe distrained by a judicial writ to appear before the I. at the appellees suit: and if he be lawfully convict of such abetment by malice, he shall be imprisoned, and restore damages, as is aforesaid of the appellant. In an appeal of the death of a man there shall no essoin lie for the appellant for any cause, No essoin for the Appellant in appeal of death. in whatsoever court the appeal shallbe determined. The appeal must be commenced upon malice. 2 And whereas the words of the foresaid stat. of West. 2. be, St. 13. E. 1. 12 (For as much as many through malice) it doth thereby appear, that if the defendant in an appeal be to recover damages, it ought to be in respect, that the appeal was grounded rather upon malice then upon good matter. 40. Ed. 3. 41. 22. Ass. p. 39 32. H. 6. 2. And therefore if the defendant were indicted of that Felony whereof the appeal was sued, before the suit of the appeal, although the def. be after acquit thereof, yet he shall not recover damages, because it shallbe intended, that the indictment induced him to bring the appeal, and not malice. But the law is mere contrary, if he were not indicted until after the appeal commenced: Or if there be any such variance between the appeal and the indictment, that the acquittal of him upon the one, is not the acquittal of him upon the other, as if he be indicted as principal, and appealed as accessary, vel e converso. And yet it is otherwise, 14. H. 7. 2 if the variance be not in a matter of substance: for such a variance shall not so prejudice, but that the acquittal upon the one shallbe also an acquittal upon the other. By the letter of the said statute of Westm. 2. this word (Malice) doth only refer itself to Abettors and Procurors, but yet it is commonly taken to extend as well to the appellant, as to them. The Statute extendeth to all felonies. 3 The said stat. of West. 2. saith, when any is appealed of felony, St. 13. E. 1. 12 this word felony is not only intended of such offences, which were felonies at the time of making the said statute, but also of all other offences which have been made felony by stat. sithence the said statute. And therefore in an appeal of rape (which was made felony by the same stat. of West. 2.) the plaintiff was nonsute when the inquest was to be taken, and the def. was arraigned at the king's suit, Fi. Cor. 275 381. and found not guilty, and the jury was charged to inquire of the abettors. The defendant acquitted by battle. 4 The words of the said statute of West. 2. be (When any doth acquit himself in due manner) which may be intended as well that the defendant shall recover damages, where he doth acquit himself by battle, St. 13. E. 1. 12 as where he doth acquit himself by the country. But that acquittal by battle is to be construed in this manner, where the appellant when he is in the field will acknowledge his appeal to be false; for that is a kind of vanquishment: Fit. Cor. 98. for it must not be intended, where the appellant is slain in the field, seeing when the person of the appellant is dead, the damages be also gone for ever, without any recovery to be had of them. 5 It is to be noted, that there is an acquittal in law, as well 〈◊〉 an acquittal in deed: for if two be appealed, one as principal, and the other as accessary, and the principal is acquit, by this acquittal the accessary shall recover his damages against the appellant, if the inquest which tried the principal, Where the accessary in appeal shall recover damages. were also charged upon the accessary, 2. & 3. P. & M. Dy. 120. 35. H. 6. 2. though they gave no verdict of the accessary: for in this case the accessary shall have a writ of Conspiracy by the common Law, because by a mean he put his life in jeopardy. But it is otherwise, if the principal be acquit, and the accessary did not appear, but depended in process: for in that case he ought expressly to be acquit by verdict▪ 41. As. p. 24 or otherwise, he shall not recover damages by force of this statute, neither shall he have a writ of Conspiracy by the common law. St. 13. E. 1. 12 6 These words of the foresaid stat. of West. 2. be of great moment (viz. when any which is appealed of Felony doth acquit himself in due manner) for if the def. doth bar the plaintiff of his appeal, Where the def. is said to acquit himself in due manner, and where not he cannot recover damages thereby against the plaintiff, except the bar be such as doth acquit the def. of the Felony. And therefore if the def. doth plead, that the appellant is a bastard, or hath an elder brother, or was never accoupled in lawful marriage, or such like pleas in bar, and by these pleas doth bar the plaintiff, yet he shall not recover damages against him, for the def. may be indicted again of the same Felony, and attainted, 27. Ass. p. 25 Fi. Cor. 77. notwithstanding by either of these pleas he is discharged of the appeal, as well against the king, as against the appellant: for those pleas which do not trythe def. innocency in the Felony, do never give him damages any more than if he had pleaded in abatement of the writ of Appeal such a plea as had abated it. For notwithstanding such a plea doth discharge him of the appeal as well against the K. as against the party, yet it doth not discharge him of the felony. Fit. Cor. 12. And the like law is, if in an appeal the def. do bar the appellant by a demurrer in law, yet he shall not recover damages against him, for the def. innocency in the felony doth not by that means come to trial. And so it is, if in an appeal of the death of a man the def. do plead to issue, & is found by verdict to kill the man in his own defence, 22. As. p. 77. or by misadventure, in these cases he shall recover no damages against the appellant, for this is no acquittal of the Felony, because the def. is enforced to purchase his pardon to purge him of the Felony: and besides it doth appear, that this appeal was not commenced upon malice. Fi. Cor. 386. In like sort, if the def. in an appeal upon his arraignment will demand his Clergy, & the Court will take an inquest of office, to inquire whether he be guilty, or not, and the inquest doth find him not guilty, yet by this acquittal he shall not recover damages, for in that he demanded his clergy before trial, he did rather in a sort confess the Felony by implication, than otherwise. But if he had refused his clergy, and put himself upon the inquest, who had acquitted him, than he had been acquit in due manner, according to the foresaid statute, & should have recovered his damages. And so it is, if the def. in an appeal hath the release of the appellant, or the K. pardon, & will waive them, & plead not guilty, & put himself upon the country, and is acquit, he shall recover damages, & yet he hath done a thing of record (viz. by purchasing the K. pardon) wherein by implication he doth confess the Felony. But if it were a pardon by act of Parliament, 11. H. 4. 40 he could not weive it. If the def. be acquit erroneously without due process, he shall not recover his damages against the plaintiff, for that the words of the foresaid statute of West. 2. be: See acquietaverit in curia Regis modo debito. As, 9 H. 52 where the def. doth appear by the Exigent, upon whom the Sheriff hath returned Cepi corpus defendentis, where he should have returned Exegi feci, and the defendant doth appear upon the Evidence, and without taking advantage thereof, pleadeth not guilty to the appeal, and it is so found for him: yet some do affirm, that he shall not recover his damages, because he is acquit erroneously without due process. But others upon greater reason do hold, that the Error in the process is not material, Fi. Cor. 444. so long as there is no Error in the writ of appeal, declaration, or pleading: for the def. is arraigned upon the original Writ, and not upon the mean process. Acquit at the K. suit is only upon an appeal 7 The foresaid statute of West. 2. hath ordained, St. 13. E. 1. 12 (That when any which is appealed of felony, doth acquit himself, either at the appellants suit, or at the King's suit:) This suit of the K. is always intended upon an appeal, when the def. is arraigned upon an appeal, after that the appellant hath declared in his appeal, and is Nonsute: for if the def. were acquit at the king's suit, upon an indictment of the same Felony, yet he shall recover no damages. And the manner how he shall recover damages, being acquit at the king's suit, doth somewhat vary from recovering of damages at the party's suit: for when it is at the king's suit, he shall not recover his damages, though he be acquit, until he hath sued a Scire facias against the appellant, to bring him into the Court again, being out of the Court before by his Nonsute. But if he be acquit at the appellants suit, he shall have his judgement to recover damages, without suing of any further Process. And if a woman that is appellant be Nonsute, and after doth take a husband, Fit. Damag. 77. the Scire facias shall be awarded against the wife only. B. What justices may inflict the penalty upon the appellant. 8 And though the foresaid statute of West. 2. hath provided, St. 13. E. 1. 12 That the justices before whom the said appeal shallbe heard and determined, shall punish the appellant by a years imprisonment: that punishment cannot be inflicted by the Iust. of Nisi prius: and yet by the statute of Anno 14. H. 6. St. 14. H. 6. 1 the justices of Nisi prius have power to give judgement in Treason and Felony tried before them, and that as well where the defendant is acquit, as where he is attainted. But yet they be not such justices, as this statute doth mean: 2. & 3. P. & M. Dy. 120. 14. E. 4. 14. 22. E. 4. 18. For that all the plea of Appeal was not heard before them, but a parcel, viz. the trial only. The damages for several persons assessed severally 9 And whereas the said statute of West. 2. would have the justices in assessing of damages for the defendant in an appeal, St. 13. E. 1. 1● to have respect to his imprisonment, arrest, & slander: Therefore in an appeal brought against divers, if they be all acquit, the damages shallbe taxed severally, that is to say, 8. H. 5. 6. Fi. Dam. 77. every of the defendants shall have his damages taxed by himself: for it may be, that one hath cause to recover more than the other: as, if one were appealed as principal, and the other as accessary; or that the one were a gentleman, or a man of greater estate, and the other of a meaner degree. But yet this Recovery of damages must be intended in one, who is by the law enabled to recover damages: for if an appeal be brought against a woman covert only, Fi. Cor. 276. without her husband (as it must be unless the husband committed felony with his wife) the wife shall not recover damages, though she be acquit. And yet if the appeal be brought against the husband and wife together, & they be both acquit, Fitz. judg. 108. than the damages shallbe severally taxed, that is to say, the husband shall recover for his own imprisonment, and the husband and wife shall recover jointly for the imprisonment of the wife. St. 13. E. 1. 12 10 Though the foresaid statute of West. 2. doth ordain, Where the appellant shall pay a fine to the king. That the appellant shall be grievously fined to the king, yet that is to be intended, where the appellant shall yield damages to the defendant: 9 H. 5. 1 for if the case be such, as that the appellant shall not render damages to the def. than he shall not pay a fine to the K. but shallbe amerced only: as, where an appeal doth abate by misnaming, the appellant shallbe only amerced. And yet if the appellant be Nonsute after declaration, 41. Ass. p. 8. he shall pay a fine to the king, and the Court will award process against him for the same fine: and though the defendant be after acquit at the king's suit, by which means he shall recover damages against the appellant, yet the appellant shall not pay a new fine to the king, for that he hath paid it before. And if the defendant be found guilty, when he is tried at the king's suit, the appellant hath no remedy to recover the fine, which he hath paid before: for by the common Law, the plaintiff in an appeal should have paid a fine for his Nonsute, which is the cause that a fine shallbe paid by the appellant presently upon his Nonsute. St. 13. E. 1. 12 11 And for that the words of the said statute of West. 2. be, In what case inquiry shall be of the abettors If the appellants be not able to recompense the damages, inquiry shallbe made, by whose abetment the appeal was commenced: by those words it is to be gathered, that if damages be not to be recovered against the appellant, there shall never any inquiry be made of the abettors, as in the cases aforesaid. And where the words of the statute be, If the appellant be not able to recompense the damages, it is intended all the damages: for if the appellant be sufficient to render part of the damages, 8. H. 5. 6. 8. Ed. 4. 3. but not the whole, inquiry shallbe made of the abettors, and they shall pay the residue. St. 13. E. 1. 12 12 The foresaid statute doth ordain, That inquiry shallbe made of the abettors, if the appellee do desire it: so that the Court of Office ought not to inquire thereof, but at the appellees request. And if an appeal be brought against two, and one of them is acquit by verdict, if the Court do inquire of the abettors at the request of the same defendant, and the inquest doth find, that there be no abettors, and after the other defendant is arraigned, and also acquit, and if he do request also, that inquiry may be made of the abettors, the verdict of the former inquest, whereunto he was not privy, neither against which he shall have any remedy, being but an inquest of Office, shall not bind him; but according to the words of the said statute, inquiry shall be made again at his request of the abettors: for though it be commonly inquired of the abettors, by the same jury which doth try the def. yet their inquiry therein is but an inquest of office: for if they do find abettors, the abettors when they do appear, may traverse all that the inquest hath found: As if they have found that the appellant was not sufficient, What pleas the abettors may plead. or that such a man, or such a one were abettors: 8. Ed. 4. 3. because they that be supposed abettors, may say by protestation, not confessing the felony, for their plea, that the appellant is sufficient, or that they were no abettors: for the words of the Statute be (And if they be lawfully convict of such abetment by malice) which doth prove that they shall have their answer to that which was found by the inquest. And also it is a good answer for him that is charged to be an abettor, to show sufficient matter to prove, Fi. Cor. 386 that the defendant ought not to recover his damages against the appellant, or that the defendant was not lawfully acquit, but erroneously. But if the abettors would take exception to the inquisition found, for that the inquest did not find at what day, Fi. Cor. 45 M. 22. E. 4. year, and place the abetment was made, that is no good exception: for in that they have found the abetment, they have performed the words of the statute (which be, That inquiry shall be made by whose abetment) and that they have found: And touching the year day, and place, the defendant in the Appeal must add to the inquisition, and so supply that which wanteth. Process against the abettors. 13 Because the said statute hath ordained, St. 13. E. 1. 12 that after by an inquest an abettor is found, he shallbe distrained by a judicial writ at the appellees suit, to appear before the justices: Therefore it is to be gathered by words of the said statute, that the process against abettors is distress infinite: for this process of distress is always pursued by him that is acquit, who for his speedy remedy may prosecute it, although the apppellant be not in the Court: as where the Appellant was nonsuit in the Appeal, and the defendant was arraigned at the King's suit, and acquit, and his damages taxed, and the abettors found: Fi. Dam. 77. in this case the defendant shall have process against the abettors presently, although the judgement of damages shallbe suspended, until a Scire facias shall be awarded and returned against the appellant. Nonsute in the process against the abettors. And the defendant who is acquit in an Appeal, may be nonsuit in the process which he doth pursue against the abettors, and begin again if he will, for that nonsuit is not peremptory to him. Fit. Co. 386 A Writ against the abettors by the appellee. 14 There is an original writ to be purchased by the appellee, who is acquit by verdict, against the abettors, for their abetment, Fitz. Act. sur stat. 28. wherein he may count abettors, of greater damages than were assessed by the justices in the Appeal: for of those damages taxed in the Appeal, there will lie no attaint, because the inquiry touching them is but of office. And the defendant in the Appeal cannot compel the justices to increase those damages, and therefore it is reason that he should relieve himself by this action. Procurors of indictments for suits in spiritual Courts. 13 The same remedy which is given by the foresaid stat. of West. 2. to the def. in an appeal of Felony, if he be acquit, is given by the stat. made An. 1. R. 2. to him who is falsely indicted for pursuing in a spiritual Court a matter pertaining to the temporal jurisdiction, after that he is acquit thereof: St. 1. R. 2. 13 The words of which stat. be these: The Prelates & Clergy of the realm do greatly complain, for that people of holy Church suing in the spiritual court for their tithes, & other things, which ought of right, and of ancient time were wont to appertain to the same spiritual court, & that the judges of spiritual courts, & other persons dealing therein according to the Law, be maliciously and unduly for that cause indicted, imprisoned, and by the secular power horribly oppressed, and also enforced by violence, by oaths, by grievous obligations, and by many other means unduly compelled to desist, and utterly to leave off from the things aforesaid, contrary to the liberties of the holy Church. Wherefore it is enacted, That all such Obligations made, or to be made by duresse, or violence, shallbe of no value. And touching those which do procure by malice such indictments, & themselves to be indictors, after that the same indictees be thereof acquit, such procurors and indictors shall have and incur the same pain which is contained in the statute of West. 2. touching those which do procure false appeals to be made. And the justices of Assize, or other justices, before whom such persons indicted shallbe acquit, shall have authority to inquire of such indictors and procurors, and to punish them duly, every person according to his desert. ❧ A Writ of Conspiracy. Where a writ of Conspiracy doth lie. 1 A Writ of Conspiracy doth lie, where two or three persons, or more, of malice, and by co● in, do conspire and devise to indict another person falsely, and after he which is so indicted is acquitted, in this case he shall have a writ of Conspiracy against those, who did so conspire to indict him. But this writ doth lie against two persons at the least, 28. Ass. p. 12 11. H. 4. 2. which do so conspire: for if one person, of malice and his own false imagination, doth labour and cause one to be falsely indicted, the party which was so indicted shall not have a writ of Conspiracy, but an action upon ●he case against him, who caused him to be falsely indicted. 2 At the common law a writ of Conspiracy did lie as well upon an acquittal in an appeal, as it doth at this day on an acquittal upon an indictment. But there hath grown a question thereof since the stat. of West. 2. was made, St. 13. E. 1. 12 Registrum for that in the writ of Conspiracy, in the Register, it is noted for a rule, and also it is affirmed by some others, That a writ of Conspiracy doth not lie upon an appeal, for that the said stat. of West. 2. gave to the def. damages against the appellant and the abettors, Fit. Na. Bre. 114. and so in a sort provided for him another remedy. But to say generally, that the def. shall not have a writ of Conspiracy upon an acquittal in an appeal, for that he may have damages against the appellant and the abettors, is no sufficient reason: for the said stat. doth not give to the def. inquiry against the abettors, but upon his own request, and therefore if he will omit to desire it, he shall have the remedy ordained by the common law: which law is not changed by the foresaid stat. of West. 2. that is in the affirmative, & doth not restrain the benefit given by the common law. And it may be, that the damages assessed by the inquest of office, will not be so beneficial unto him, as the damages which will be given by a jury, that is taken at the party's suit, whereunto he shall have his challenges, and an attaint, if they give a false verdict. Also in a Writ of Conspiracy process is to be awarded by Capias and Exigent, which process is not to be granted upon an inquiry, according to the stat. of West. 2. So that if the abettors be not distrainable, the def. in an appeal shallbe without any remedy. And further, the damages which the abettors are to pay by force of the said statute of West. 2. be the damages that the defendant hath recovered against the appellant, which damages the abettors are to pay for the defendant, or for his insufficiency, or nonability, and not for themselves. And so it may be said, that they may satisfy for themselves in a writ of Conspiracy to be brought against them, or otherwise their offence shallbe unpunished. Conspiracy maintenable upon acquittal in an appeal or indictment. And therefore notwithstanding the said statute of West. 2. a Writ of Conspiracy doth lie at this day, as well where the defendant is acquitted upon an appeal, as where he is acquitted upon an Indictment. And accordingly there is a Writ of Conspiracy in the Register devised for that purpose, 33. H. 6. 2. 40. Ed. 3. 42 22. As. p. 39 14. H. 7. 2. amongst other Writs of Conspiracy. But in an appeal founded upon an indictment, if the defendant be acquit upon the appeal, he shall not have a Writ of Conspiracy, because it cannot be intended to be founded upon malice, when it is founded upon an Indictment. And likewise, if an Appeal be founded upon an Indictment, although the appellant be Non-sute after declaration, and the defendant be arraigned, and acquit at the King's suit, yet the defendant shall not have a Writ of Conspiracy, causa qua supra. 3 He against whom a Writ of Conspiracy is to be brought, The indictment must be false, which giveth the writ of Conspiracy must be charged, that he conspired with others to indict the plaintiff falsely and maliciously, without any good or lawful cause, 22. As. p. 77 Fi. Consp. 21. 24. or else the Writ will not lie: and therefore if by the conspiracy of two or more one is indicted of Murder, and upon his arraignment it is found, that he did kill the man in his own defence, or by misadventure, or by any other means which by the Law is justifiable, he shall not have a Writ of Conspiracy: for the Indictment was framed upon good cause, viz. the death of a man, and neither upon 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 have a Writ of Conspiracy, for by that pardon sued he doth in a sort confess the committing of the felony, and so clear the falsehood or malice of any which did devise to indite him. And yet notwithstanding the obtaining of his pardon, he may waive it, and plead not guilty, and then if he be acquit of the felony, he may have his writ of conspiracy. 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 waive it: for the justices ought to allow him his pardon without pleading of it, if it be a general pardon. 33. H. 6. 2 4 If too be indicted or appealed of felony, the one as principal, A conspiracy doubtful. and the other as accessory, and the principal hath his charter of pardon, or doth die before he be attainted, the accessory shall not have a writ of conspiracy against the parties that sued the appeal, or devised to indite the principal and him, for that it is not yet discussed, but standeth indifferent whether the conspiracy 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 conspiracy for an indictment agreed upon, The conspirators do become indictors to be preferred by two or more, the same conspirators be sworn upon an inquest to inquire of felonies, and they with the residue of the inquest that be sworn with them, do indict him of felony, against whom they did before conspire, in this case he shall not have a Writ of Conspiracy against them, because it cannot be intended false and malicious, when they did it by virtue of their oaths, and also did it with others besides themselves. And the same Law is, if after the conspirators be sworn upon the inquest of inquiry, and have spoken and conferred with their companions, the justices shall remove them from the inquest, yet in that they were once sworn, and the conspiracy thereby discharged, this removing them from the inquest which cometh after, 20. H. 6. 5. & 35. shall not make them to be again in danger, and charge of the Writ of Conspiracy. And so it is of a justice of Peace; A justice of peace. he shall not be charged by a Writ of Conspiracy, for any thing which he doth in open Sessions as a justice of Peace, 27. Ass. p. 12 12. E. 4. 18 21. E. 4. 67. 47. Ed. 3. 17. for he is a judge of record, and sworn to execute his office duly, and may inform for the king's benefit, and to punish offenders as well as he can. But the Law is mere contrary, if one who is no justice of record doth it, for he shall 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 giver of Evidence. and discovereth a felony, and is sworn, and doth give evidence to the inquest, he shall not thereupon be charged in conspiracy, if he doth not before conspire with others falsely and maliciously. In a writ of Conspiracy the def. pleaded, that when the jurors had taken their oaths upon the indictment, he was sworn to inform 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 plaintiff charged him, for that cause he waived 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 known 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 Ann 33. Ed. 1. which defineth them in this manner, viz. St. 33 E. 1. Conspirators be they, which bind themselves by oath, covenant, or other alliance, that every one shall help and maintain others purpose, falsely and maliciously to indict, or to move and maintain suits: and also that cause infants to appeal others of felony, whereby they are imprisoned, and much grieved: and such as retain men in the country with liveries, or fees, to maintain their lewd enterprises, and to subvert the truth, as well the takers as the givers. And Stewards and bailiffs of great Lords, who by their signory, office, or power, do undertake to maintain or uphold other quarrels or suits then such which concern their Lords, or themselves. A conspiracy must be by more than one. 7 The foresaid statute doth define conspirators to be those, St. 33. E. 1. which bind themselves by oath etc. By which words it doth appear, that a conspiracy cannot be committed by one person alone, but by two at the least: and therefore this Writ of Conspiracy will not be maintained against one alone, though it were begun against divers: for as soon as it shall appear, 28. Ass. p. 12 22. Ass. p. 77 11. H. 4. 162 that all but one be discharged thereof, by their discharge, that one shall also be discharged. But this discharge ought to be such a one, as may be a discharge to all intents, as acquittal of all by verdict saving one, is an acquittal of that one also. And so it is, if all but one be discharged by matter in Law, as if they plead, that they were indictors, or such like matter in Law, which will discharge them: for in those cases they be acquit of the conspiracy to all intents. But if in a writ of Conspiracy sued against two, 14. H. 6. 25. one of them is attainted, and the other doth bar the plaintiff by a demurrer in law, yet that shall not discharge the other which is attainted, Where one only charged in Conspiracy if the bar both not contain matter to prove that he did not conspire, or could not conspire. And so it is, if in a writ of Conspiracy brought against two, the one doth appear & plead, and his plea is found against him: in this case judgement may be given against him, 24. E. 3. 34. though the other be not attainted: and yet in that case some do affirm, 27. E. 3. 80. that in a writ of Conspiracy against two, one of them shall not answer, until his companion doth appear, for the inconueniency which may ensue, viz. that the one may be found guilty, and the other after may be acquit of the same conspiracy. But if he that did first appear, will plead without his companion (though the law doth not enforce him thereunto) and that the verdict do pass against him, and he found guilty of the conspiracy, judgement shallbe given against him, as is aforesaid, though after his companion be acquitted of the same conspiracy: Nam volenti non fit iniuria. 8 As a writ of Conspiracy will not lie against one person only, no more will it be maintained against two, who do represent but one person, No writ of Conspiracy against the husband and wife as the husband and wife: 40. Ed. 3. 19 38. E. 3. 3. for a writ of Conspiracy is not to be brought against them, seeing the husband and wife by common intendment ought to have but one will, which will of the wives is (or should be) subject to the will of the husband: So that when they confer and speak together, all shall be intended the speech and act of the husband, and nothing of the wife. But it is otherwise, if she do any act alone without her husband, as if she do commit Treason or Felony etc. But a writ of Conspiracy will lie against the husband, Fi. N.B. 116. L. his wife, and a third person. 9 The common form of the writ of Conspiracy in the Register is this, The form of the writ of Conspiracy, viz. Register. fo. 134. Rex vice comiti N. Salutem etc. Si A. fecerit etc. tunc pone etc. B. & C. quod sintcoram nobis etc. ostensuri quare conspiratione inter eos apud M. praehabita, praefatum A. de quodam equo furtiue apud R. capto & abducto indictari, & ipsum ea occasione capi, & in prisona nostra N. quousque in curia nostra coram dilectis & fidelibus nostris I. & S. iusticiarijs nostris ad Gaolam nostram N. deliberandam assignatis, secundum legem & consuetudinem regni nostri acquietauts fuisset detineri falso & malitiose procuraverunt ad grave damnum ipsius A. & contra formam ordinationis in huiusmodi casu provisae. Et habeas ibi nomina plegiorum & hoc breve. Teste etc. Which foresaid writ is founded upon a verdict: but if it be a writ of Conspiracy founded upon the plaintiffs Nonsute in an appeal, than the words of the writ be these, viz. Quousque idem A. per considerationem curiae nostrae inde quietus recessit: Though in the Writ of Conspiracy it is not alleged, 35. H. 6. 46 that the place where the Conspiracy was devised, was within the County, and within the jurisdiction of those justices before whom the plaintiff was acquit, yet the writ is good, notwithstanding the omission of that allegation: for it shallbe intended to be made within the same county, until the contrary shallbe showed. But it must needs be expressed in the writ, before which Iust. the acquittal of the pl. was, 3. H. 6. 52. but not the manner of the acquittal, nor how he was acquitted. And neither in this writ, nor in other writs of Conspiracy mentioned in the Register, all the indictment need not to be rehearsed, 19 H. 6. 34. 47. Ed. 3. 16. but briefly the substance thereof, and it is sufficiently in form, if the writ of Conspiracy do agree with the indictment, which it ought to do. 10 In the Register there is a writ of Conspiracy for the Accessory A writ of conspiracy for the accessory. in felony, when he is acquit by verdict, and another writ for him upon the acquittal of the Principal (if his life were put in jeopardy by the same inquest that acquitted the principal) but yet these two writs do differ in form, for the first is Quousque coram praefatis justiciarijs nostris inde secundum legem & consuetudinem nostram acquietatus fuit: And the other is, Quousque principal' secundum legem etc. acquietatus fuisset, & idem accessorius quietus recessit. And it is sufficient, 33. H. 6. 1. if in the writ brought by the accessory he make mention of his own imprisonment, and not of the principals. And this form of quietus recessit, is used also when a writ of Conspiracy is brought upon an acquittal in an Appeal at the King's suit, after the party's nonsuit. 22. H. 6. 49. In a writ of Conspiracy the plaintiff may suppose that the conspiracy was made in two Towns, Conspiracy in two towns. because in one day the Conspirators may meet in several Towns. Bars in conspiracy. 11 In a writ of Conspiracy it is a good plea for the defendants to plead in bar of the Action, a concord between the plaintiff and them: And so it is to plead any matter which will prove the acquittal of the plaintiff erroneous, 21. H. 6. 28 for than was not the plaintiff lawfully acquit according to the Statute of Westminst. 2. judgement in conspiracy 12 When any is convict in a writ of Conspiracy at the suit of the party, the judgement is none other, but that the plaintiff shall recover his damages, 43. E. 3. 33. and that the defendants shall be taken. But if one be indicted and convicted of conspiracy, at the King's suit, the judgement is more grievous, for then the judgement is, That they shall lose their free law, to the intent, 27. As p. 59 46. As. p. 11. 24. E. 3. 34. that they shall not after that time be put in juries or Assizes, nor otherwise produced as witnesses to testify truth: and if they have to do in the King's Court, they shall make their Attorney to sue for them, and that they shall not approach within twelve miles of the King's Court, and that their lands, goods, and cattles shall be seized into the King's hand, and their houses wasted, and their wives and children thrust out of doors, and their trees pulled up by the roots, and their bodies taken and imprisoned. And this is termed a villainous judgement, because it bringeth villainy and shame to him that receiveth it. 13 And because that wicked offence of conspiracy should be inquired of, and punished, as well by indictment, as by writ, there was a Statute made Anno 28. Ed. 1. called Articuli super chartas, whereby it was ordained, St. 28. E. 1. That in right of Conspirators, false informers, and embracers of Inquests, Assizes, and juries, the King hath provided remedy by a Writ out of the Chancery. And from henceforth the King will, that his justices of the one Bench & the other, and the Just. assigned to take Assizes, Inquirie of Conspiracies by justices. when they come into the country to do their office, shall make inquiry thereof at any man's plaint without writ, Register. fo. 118. and shall without delay do right to the plaintiffs. And the justices may be commanded by a writ directed unto them out of the Chancery, to execute the same statute, although the statute of itself is a sufficient warrant and authority for them so to do: which remedy mentioned in the foresaid statute, was intended to be ordained by another statute, called the statute of Conspirators, St. 20. E. 1. made Anno 20. Edw. 1. at Berwick upon Tweed, which doth provide a writ of Conspiracy against conspirators, maintainers of false quarrels, and champertors, and expresseth the form of that writ. St. 28. Ed. 1 14 But because the foresaid Statute of Articuli super chartas did provide only a remedy at the plaint of the party, and did not give the justices in the said Statute mentioned power to inquire of, hear, and determine conspiracies, at the suit of the King, neither did it give authority to the said justices, to adjourn the suit, if for shortness of time it could not be determined in the country: St. 4. E. 3. 11. Therefore by a statute made Anno 4. Edw. 3. Inquirie of conspirators at K. or party's suit. the same enormities were redressed by these words, viz. Where, in times past divers people of the Realm, as well great as other, have made alliances, confederacies, and conspiracies, to maintain parties, pleas, and quarrels, whereby divers have been wrongfully disherited, and some ransomed and destroyed, and some for fear being maimed, and beaten, durst not sue for their right, nor complain, nor the jurors of Inquests give their verdicts, to the great hurt of the people, and slander of the Law, and common right: Therefore it is agreed, that the justices of the one Bench, and of the other, and the justices assigned to take Assizes, whensoever they come to hold their Sessions, to take Inquests upon Nisi prius, shall inquire, hear, and determine as well at the King's suit, as at the suit of the party, of such maintainers, bearers, and conspirators, and also of champertors, and of all other things contained in the said Article, as well as justices in Eire should do, if they were in the same County. And that which cannot be determined before the justices of the one Bench or of the other, upon the Nisi prius, for shortness of time, shall be adjourned into the places whereof they be justices, and there shall be determined according to right and reason. 15 Notwithstanding the foresaid Statutes, there were such devices and practices to execute malice and revenge, and desire to put others in peril of their lives, lands, and goods, that some would frame indictments or appeals against others of the K. good and obedient subjects, of Treason, Felony, or trespass, in several foreign counties, liberties, and franchises, where the said persons did never dwell nor converse, and there they were pursued to the Exigent, and sometime outlawed, before that they could know of it: For the remedy whereof there was a stat. St. 8. H. 6. 10 made Anno 8. H. 6. wherein amongst other things it was enacted, That if any person shall be indicted or appealed of felony, Procurers of an indictment or appeal in a foreign county treason, or trespass, in a foreign county, he shall in an action upon the case, recover triple damages against every procurer of such indictment, or appeal, after he is duly acquitted by verdict. And the like process shallbe in the same, as in an action of Trespass vi & armis. S. Appeals 61. An offence supposed to be in a place where there is none such. 16 Because divers people upon malice, envy, and desire of revenge, did ofttime cause the K. liege people to be appealed or indicted in divers counties, of Treasons or Felonies, supposing by the said appeals or indictments, that the said Treasons or Felonies were committed in one certain place, whereas there is no such place within the said county where the said indictment is found, nor any such place in the county, as is declared by the said Appeal: Therefore by the stat. made anno 7. H. 5. anno 9 H. 5. & anno 18. H. 6. it was ordained, St. 9 H. 5. 1. St. 18. H. 6. 12. That the said Appeals and indictments, and the process thereupon shallbe voided, and adjudged of no force. And that the said appellees and indictees may have their writs of Conspiracy against their indictors, procurors, and conspirators, and recover their damages. And that the indictors, procurors, and conspirators shallbe punished by imprisonment, fine and ransom, for the K. advantage, by the justices discretion. ❧ The Coroner and his Authority and duty in Felonies etc. 1 A Coroner is an ancient officer of trust in this realm, The Coroners Office. ordained to be a principal preserver and keeper of the peace, to make record of the pleas of the Crown, and of his own view, and of abiurations, and of outlawries, and of Appeals and accusations of felons made before him, and of nonsuits of plaintiffs in Appeals, and of all things done in the County which belongeth to the Office of the Coroner. And also an Appeal shallbe entered of Robbery or larceny in the presence of the Coroner in the Court of any free man which hath a franchise of Infang thief. Election of the Coroner. Which Coroner shall be chosen into the same Office upon the death, or other avoidance of another, by force of the Kings writ directed to the Sheriff of that County where that Office is void, by death or otherwise. And the same election shall be in the full County Court by warrant of the Kings writ: The tenor of which writ is as followeth. 2 james by the grace of God etc. The writ de Coronator● eligendo. To the Sheriff of the County of Buckingham Salutation etc. Because L. one of our Coroners of the County is deceased, as we are informed, we do command thee, if it be so, that thou dost cause another Coroner to be chosen in thy full County, by the assent of the same County, in the place of the same L. according to the form of the statute therefore made and provided: Who taking his oath according to the custom, shall from thenceforth do and perform all things which do appertain to the Office of a Coroner in the County aforesaid. And cause such a one to be chosen which best can, and will attend that Office. How long a Coroner shall continue in his Office. When a Coroner is chosen he shall continue in his Office until the King hath otherwise determined his pleasure, 4. E. 4. 44 or that the King doth die, or that there be another King: for he is not changeable every year, as the Sheriff and Escheator is. And then the Sheriff shall give him an oath, That he shall lawfully and without demanding of any reward, make his inquests and enrollments, and do all things which do belong to the office of the Coroner. 3 And because many mean men, and of small discretion, were divers times chosen into the said Office of Coroners, and for that it is expedient that discreet, lawful, and sage men should meddle in the same Office; therefore by the Statute o● Westminst. prim, made Anno 3. Edw. primi, St. 3. E. 1. 10 it was ordained, Who shallbe Coroners, & by whom they shallbe chosen. That all Coroners of Shires shall be chosen in the full Counties, by the Commons of the same Counties, of the most meet and worthy people, which may be found in the same Counties, to execute the said Offices, and of the most sage and wise Knights, which do best know, can, and will attend unto the same Office, and which will lawfully attach and present the Pleas of the Crown. And the same Statute was after rehearsed and confirmed by the Statute of Anno 28. Edw. 3. by which it was ordained, St. 28. E. 3. 6 That Coroners of Counties shall be chosen in the full Counties, by the Commons of the same Counties, of the most fit and lawful persons of the same Counties: Always saving to the King and other Lords, which ought to make such Coroners their Franchises. St. 14. E. 3. 8 But by the Statute of Anno 14. Edw. 3. no Coroner shall be chosen, A Coroner must have sufficient land. if he have not sufficient land in fee in the same County, whereof he may answer all manner of people. And because this Statute is in the negative, therefore the not satisfying of it, is a sufficient cause to remove a Coroner from his Office. And he is said to have sufficient land, if he hath land in the County whereupon he may live according to his degree, to execute that Office. And whereas the foresaid Statute of 28. Edw. 3. hath ordained, Fi. N. B. 164. That a Coroner shall be chosen by the Commons of the said Counties, that is intended by the freeholders of the same Counties, and by none other. Whether Coroners ought to be knights. 4 The foresaid Statute of Westminst. prim, St. 3. E. 1. 10 committeth the Office of Coroners to Knights and none others: and therefore in former ages it was a cause amongst others, to discharge a Coroner of his Office, that he was no Knight: But because those words were put into the Statute only to the intent that the Coroner should have sufficient within the same County: for which cause, if that be performed, the intent of the Statute is observed. Causes to remove a Coroner. 5 And also the same statute doth ordain, That such shall be chosen Coroners, which do know, can, and will attend unto the said Office: And therefore if any be chosen, which do not know, cannot, or will not attend unto the same office, they shallbe removed and discharged of that office by the K. writ, Co. l. 5. 57 wherein the cause of his discharge shall be rehearsed: either because he is employed in other affairs of the K. or that he is sick of some grievous and long infirmity, or that he is lame, or that he is not meet for that office (viz. by force of some clause contained in the said statute of West. 1.) or that he hath not sufficient lands within the same County, or that he hath the palsy, Fitz. N.B. 165. N. or that he is dwelling in the uttermost part of the Shire, or that he is chosen Sheriff, or verderer of a forest. But if any of those causes surmised be false, whereby the Coroner is discharged of his Office by false suggestion, than he may sue for a commission to be awarded out of the Chancery, to inquire of the same suggestion. And if it be found false, and returned so into the Chancery, than there shall be a Supersedeas awarded out of the Chancery, to the Sheriff, that he shall not remove the said Coroner. And if he be removed, that he shall suffer him to enjoy the said Office as he did before. But it is sometimes used, and most commendable for him that is chosen Coroner, if he perceive in himself any of the foresaid impediments, Register. fo. 177. to purchase a writ out of the Chancery, to discharge him of the said Office. 6 And because the said Coroner should do justice and right to all persons, Where a Coroner may take a fee, and where not. without extortion or exaction, St. 3. E. 1. 10 the foresaid statute of West. 1. doth further ordain, That Sheriffs shall have counter-rolls with the Coroners, as well of Appeals as of Inquests, of Attachments, and other things which do belong to his Office. And no Coroner shall demand or take any thing for the execution of his Office, upon pain of a grievous forfeiture to the King. Which said Statute was also confirmed by a statute made at Excester, St. 14. E. 1. anno 14. Edw. 1. And by the statute made Anno 1. H. 8. it was enacted, St. 1. H. 8. 7. That upon request made to a Coroner to come and inquire upon the view of any person slain, drowned, or otherwise dead by misadventure, the said Coroner shall diligently do his Office, upon the view of the body of every such person or persons, without any thing taking therefore, upon pain to every Coroner that will not endeavour himself to do his Office as is aforesaid, or that he taketh any thing of any person, for doing of his Office upon every person dead by misadventure, for every time forty shillings. And the justices of Assizes, and justices of Peace, within the country where such default of Coroners be, have authority to inquire thereof, and to determine the same, as well by examination as by presentment. But by a statute made Anno 3. H. 7. it was provided, St. 3. H. 7. 1. That a Coroner shall have for his fee upon every Inquisition taken upon the view of a body murdered, or otherwise slain, iij. s. iiij. d. of the goods and cattles of the murderer, if he have any, and if he have no goods, the Coroner shall have his fee of such amerciaments as any township shall be amerced for escape of any such murderer. And though by the common law the Coroner hath a fee, Fitz. Cor. 321. 372. a penny of every Visinage, as appendent to his Office, at the coming of the justices in Eire, yet that fee is not repugnant to the foresaid statute of Westminst. 1. for he taketh not that to execute his Office, but as a fee of right incident to his office, though he do nothing in the execution of the said Office. St. 3. Ed. 1. Bracton de Corona, cap. 5. 7 It appeareth both by the stat. entitled Officium Coronatoris, Of what things Coroners shall inquire. and by Bracton, that if any Coroners be advertised by the K. bailiffs, or other honest men of the country, to come to those that be slain, suddenly dead, or wounded, or to house breakers, or to any place where treasure is found, they shall immediately come and forthwith command four, five, or six of the next towns, that they appear before them in such a place: and when they come, the Coroners upon their oath, shall inquire, Murder. if they did know of that man that was killed, where he was first slain, whether in the field, or in the house, bed, Tavern, or in any company, and who were there. Inquirie of the offenders. Likewise they shall inquire who were culpable, either of the act or force, and who were present, either men or women, and of what age they be, so they can speak, and have discretion: And they which be found guilty by inquisition in the foresaid manner, shallbe taken, delivered to the Sheriff, and committed to the jail: and as many of them as be not found guilty, shallbe attached, until the coming of the justices, and their names enrolled. A man found slain. And if any man be suddenly slain, and found in the fields or woods, it is to be considered whether he were slain there or not: if he were brought thither, their steps that brought him (if it may be) shall be followed, and so shall the track of horse and cart. And also it shall be inquired, if he that was slain were known or unknown, and where he lodged the night before: And if any be found guilty of the death of such, immediately the Coroners shall come to his house, and inquire what cattle he hath, and what corn in his grange, and what on the ground; and if he be a free man, what free land he hath, and what it is worth by the year, beside the Lord of the fees service: but the land shall remain in the king's hands, until the Lord of the fee hath made a fine for it. And when they have inquired of all things, than they shall cause them to be priced, as if they should strait way be sold, and the body of him that is dead shall be buried. Moreover, the Coroners shall inquire of them which be drowned, suddenly slain, Suddenly slain. or strangled by the sign of a chord tied straight about their necks, or about any of their members, or upon any other hurt found upon their bodies, or some other manifest token, and shall attach the finders, and all other in their company. A Coroner ought to inquire of treasure that is found, Treasure throne. who were the finders, and who are suspected thereof, which may be gathered by some man's delicate living, and frequenting of Taverns, which (upon suspicion) shall be attached by four, or six, or more pledges. If any be appealed of Rape, Rape. he shall be attached by four or six pledges, if the appeal be fresh, and the sign of the truth apparent, or an open outcry levied: But if it be without any manifest token or outcry, two pledges shall suffice. Upon Appeal of Maihem, if the wounds Maihem or wound. be mortal, they which be appealed shall be forthwith apprehended, and kept until it be known whether he that is hurt shall recover or not: if he die they shall be retained, if he live they shall be attached by four or six pledges, according to the bigness of the wound: If it be for a Maihem, than there shall be no less than four pledges: if a small wound be, than two will serve. The length, breadth, and deepness of all wounds The length, breadth, and deepness of wounds. ought to be viewed, and with what weapons, and in what part of the body the party was hurt, and also how many wounds there be: how many be culpable, and who gave the wound: all which things shall be enrolled in the Coroners roll. Horses, boats, carts, commonly called Deodands, Deodands. whereby any person shall perish, shall be valued and delivered to the whole township, which shallbe answerable therefore. Whosoever layeth hands upon the wreck of the sea, Wreck of the Sea. shallbe attached by sufficient pledges. The price of the wreck shallbe valued, and delivered to the town to answer, etc. 8 It doth first appear by the words of this stat. St. 3. Ed. 1. that the Coroner ought to do his office in his own proper person, The Coroner shall execute his Office in his own person. and not by Deputy. viz. They shall presently come to those that be slain, or suddenly dead. And so also it is declared by the Statute of Excester, St. 14. E. 1. and proved by the foresaid definition of the Office or Authority of a Coroner, viz. That a Coroner shall make a Record of his own view: which is, that he shall see the dead body when he doth make the inquiry, or otherwise the inquiry is not good: Fi. Cor. 100L For if he will inquire of any dead person without the sight of him, this is without authority, and so void. The Coroner shall see the dead body. And therefore if the body be buried before his coming, he must record it in his Rolls, to the intent that the town where he was buried may be amerced for it, Fitz. Cor. 329. Britton 4. 21. E. 4. 70. 2. R. 3. 2. by the justices in Eire upon the sight of the Coroners Rolls. And yet notwithstanding the Coroner must dig the body out of the ground, and make his enquiry upon the sight of the body, as he should have done if it had not been buried. If one be indicted before the Coroner upon the sight of the body, and then the body is by the Coroners commandment buried, and after, for that the indictment is not sufficient, the Coroner doth take the body out of the earth, A body buried taken up again. and indict the offendor again: this is lawfully done, being upon the sight of the body, though the body had been buried fourteen days before. If a dead body that is slain, or suddenly dead, Fi. Cor. 339 be suffered to lie upon the ground unburied to putrify, or to yield an evil savour, without sending for the Coroner, the town where the same body did so lie unburied, Fi. Cor. 421 Britton. shall be amerced. And likewise if a prisoner do die in prison, and the keeper of the prison doth not send for a Coroner, he shall be amerced. And though a Coroner shall make a record of his own view, St. 9 H. 3. 17 and enter the same into his roll, Pleas of the Crown. yet by the statute of Magna Charta no Coroner, Sheriff, Constable, Escheator, or other bailiff of the K. shall hold pleas of the Crown. St. 3. Ed. 1. 9 The said statute of West. 1. ordaineth, The Coroner must presently do his office. That if any Coroners be advertised by the King's bailiffs, or other honest men of the country, they shall presently come and make inquisition: whereby it appeareth, that if the Coroner shall be slack and negligent in coming to do his office, after the bailiffs or men of the country have sent for him, he shall be punished. And if he omit to do his office, Fitz. Cor. 292. as to make inquiry of, or to enter into his roll the death of a man, or any other thing which by the law he is to do, or make a record of, he shall be committed to prison. And by the statute of Anno 3. H. 7. St. 3. H. 7. 1. If any Coroner be remiss in viewing of a dead body murdered, or slain, Coroners shall inquire and certify at the jail delivery and do not inquire of them that have done the murder, or death, of their abettors, and consenters, who were present thereat, and their names: or so found, do not enroll, certify, and deliver his inquisition to the justices of the next jail delivery in the Shire where the inquisition is taken, that the same Iust. may proceed against such murderers, if they be in the jail, or else certify the inquisition into the K. Bench, the said Coroner shall forfeit to the King for every offence v. l. St. 3. Ed. 1. 35. H. 6. 27 10 The foresaid statute of West. 1. as touching inquisition, The Coroner shall inquire only of the death of a man. doth only extend to a dead person: whereby it seemeth that a Coroner cannot inquire of any other felony, but of the death of a man: Saving that in Northumberland the Coroner doth inquire of all felonies: But that authority they maintain by prescription. A presentment was made before the Coroner, that a fellow being apprehended for stealing, was led to a church by certain persons: and this was adjudged a void presentment, 27. Ass. p. 55 because he cannot inquire thereof by virtue of his office: but if he had received the kings writ, or commission to have made inquiry thereof, he might have done it. And yet some do affirm, that he may inquire of the rape of a woman, and of breaking of prison (being other felonies different from the death of a man) and of Sturgeon, and Whales taken. If a man be slain in the arms or branches of the sea, Slain in an arm of the sea. where one may see the ground on both sides, the Coroner shall inquire thereof, and not the Admiral, because the country may take knowledge thereof: which proveth, Fi. Cor. 399 that by the common law the Admiral Admiral. had no jurisdiction but upon the main Sea, before the Statute of 13. R. 2. & 2. H. 4. were made. St. 13. R. 2. 5 2. H. 4. 11. And though the Coroner cannot inquire of any other felonies, but of the death of a man, yet by the Statute of West. 1. made Anno 3. Ed. 1. it was ordained, St. 3. Ed. 1. 9 That if the Sheriff, Coroner, or any other bailiff within Franchise or without, for reward, A Coroner concealing a fellow, or not arresting him. entreaty, or any affinity, do conceal, consent, or procure to conceal the felonies done in their liberties: or otherwise will not attach or arrest such felons, whereas they may, or will not do their offices for the favour that they bear to such offenders, and be thereof attainted, they shall be one year imprisoned, and make a grievous fine: And if they have not whereof to make fine, they shall be three years imprisoned. So that a Coroner may attach or arrest any manner of fellow whatsoever, though he cannot inquire of him. 11 It is contained in the before specified Statute of Westminst. 1. That all things ought to be enrolled in the Rolls of the Coroner: Which proveth that the same enrolment is the Coroners Record, The force of a Coroners record. and that the said Record is of great force: for if the thing enrolled be within the compass of the Coroners authority, it shall be of greater credit than the Record of any other: Bro. Cor. 351. For if a thing be found before the justices in Eyre, contrary to that which was entered into the roll of the Coroner, The first Coroner. it shall be void. Fitz. Cor. 107. And the Record of the first Coroner, viz. the Record of him which first sitteth upon the view of the body, shall be preferred before the Record of the second Coroner, who doth after sit and inquire of him. If a man become an Approver Approver. before the Coroner, Fitz. Cor. 118. and doth appeal others, he shall dot be received to say after, That he did it by dures Dures. of imprisonment, but shall be estopped thereof by the Coroners Record. And in like sort, if one hath abjured the Realm before the Coroner, abjuring before the Coroner. 12. As. p. 29. Fi. Cor. 124 and after doth return, and is arraigned, and doth plead, that he is not the same person: if in this case the Coroner doth record him to be the same person, he shall be condemned. And the same law is, if a man be arraigned of breaking of prison, Confession of breaking of prison. 25. E. 3. 42. Fitz. Cor. 243. 435. he shall be estopped, to plead not guilty thereunto, if the Coroner doth record, that he did at another time confess it before him. And if an Approver Approver. to prolong his life, do appeal others, where there be none such, and that be testified by the Coroner, the Approver shall be hanged, 25. Ed. 3. 24. without further enquiry of the approvement. Who ought to appear upon the Coroners inquisition. 12 By the Statute of Marlbridge made Anno 52. H. 3. St. 52. H. 3. 24. it was ordained, That upon an inquisition to be taken by a Coroner of the death of a man, every one of the age of twelve years ought to appear, except they have a reasonable excuse of their absence. The Coroner may take appeals. 13 And though the foresaid Statute of Officium Coronatoris do make mention but of certain Appeals, as ●n Appeal of Rape, Mayhem, etc. yet the Coroner with the Sheriff hath authority to take Appeals of Robbery and other Felonies, and also to take the Appeal of an Approver, in this sort and manner following, viz. he may take an Appeal of Robbery, or other felony committed in the same county where he is Coroner, and not elsewhere. But he may take the Appeal of an Approver, of an offence committed in any county of England: and the reason of this difference is, because by the approvement the Approver is attainted of Felony, but so is not the offendor in the other case, and therefore if in the former case he should receive such an Appeal of Robbery, Fitz. Cor. 437. or other Felony, it could not be tried by a jury of the county where he is Coroner, for that the felony was committed in a foreign county. And yet in the foresaid case of approvement in another county, the Coroner cannot award Process thereupon, but he must enter it into his roll, and send it to the justices of jail delivery, Fitz. Cor. 462. who shall award Process unto the Sheriff of that foreign county, to apprehend him which is so appealed. And as the Coroner may take the Appeal of an Approver in another county, so upon the same reason he may take the abjuration of one which hath confessed a felony committed by him in another county. Fitz. Cor. 416. 14 If the Coroner shall find any person drowned in a dangerous pond or pit, he must command the town where the same pond or pit is, to stop it up, Stopping up a place of danger. and enter the same his commandment into his Roll: And if after it be found before the justices in Eire, that the same pond, or &c. is not stopped up, the whole town where it is shallbe amerced. 15 Though there be divers Coroners in a County, Where the presence of all the Coroners is requisite, and where but of some one of them. yet it is not requisite to have more than one to inquire upon the sight of a dead body. And in like sort one is sufficient to give judgement upon an outlawry, 14. H. 4. 35 39 H. 6. 41. and in Redisseisin it is sufficient to have two Coroners. But where Process is to be awarded to the Coroners, in default of the Sheriff, there all the Coroners within the County ought to serve, or otherwise it is not good: for they execute that office as ministers, and not as judges, as they do in other cases. And by the statute of Anno 23. H. 6. St. 23. H. 6. 11. every of the Coroners shall be present in his proper person at the assessing of the wages of the Knights of the same Shire for the Parliament, with the Sheriff, Undersheriff, Bailiffs, and others that will be present to assess the wages of the said Knights, after the deliverance of the King's writ De solutione feodi Militum Parliamenti, and proclamation thereof made, upon pain of forfeiture of every of them making default, xl. s. to the King. St. 1. & 2. P. & M. 13. 16 By the Statute made Anno 1. & 2. P. & M. it is ordained, The Coroner must record the evidence, and bind the parties to give it. That every Coroner upon any inquisition before him found, whereby any person shall be indicted for murder or manslaughter, or as accessary to the same before the murder or manslaughter committed, shall put in writing the effect of the evidence given to the jury before him, being material. And he hath authority to bind all such by Recognisance, or Obligation, as do declare any thing material to prove the said murder or manslaughter, or to be accessory to the same, to appear at the next general jail delivery to be holden within the county, city, or town corporat, where the trial thereof shall be, then and there to give evidence against the party so indicted, at the time of his trial, and shall certify as well the same evidence, as such bond in writing which he shall take, together with the Inquisition or Indictment before him taken and found, at, or before his said trial to be made. And if any Coroner shall offend in any thing to the contrary, than the justices of jail delivery for the Shire, City, Town, or place where such offence shallbe committed, upon due proof thereof by examination before them, shall for every such offence, set such fine on such Coroner, as they shall think meet. Inquirie of a man slain within the K. house & verge. 17 Forasmuch as heretofore many felonies that have been committed within the Verge, have been unpunished, because the Coroners of the county have not been authorized to inquire of felonies done within the Verge, but only the Coroner of the King's house, which never continueth in one place, by reason whereof there can be no trial made in due manner, nor the selons put in Exigent, nor outlawed, nor nothing presented in the Eire, which hath been great damage to the King, and to the hindrance of his peace: For the redress whereof by a Statute made Anno 28. Ed. 1. St. 28. E. 1. 3 entitled Articuli super chartas, it was ordained, That if the death of a man (where the Coroners Office is to make view and inquest) doth chance in any county where the King's house is, and within the Verge, the Coroner of the same county shallbe commanded with the Coroner of the King's house, to execute his office, and to enroll it. And that thing which cannot be determined before the Steward, shall be committed to the common law, so that Exigents, Outlawries, and Presentments, shall be thereupon made to the justices in their circuits, by the Coroner of the county, as well as of other felonies done out of the Verge: Nevertheless they shall not omit by reason hereof, to make attachments freshly upon the felonies done. Which foresaid statute, for so much thereof as doth touch or concern the K. house only, is in part altered by the statute of Anno 33. H. 8. St. 33. H. 8. 12. whereby it is ordained, Inquirie if a man be slain within the K. house & verge. That all Inquisitions upon the view of persons slain within any of the King's Palaces or houses, or any other house, at such time as he shall be abiding in his royal person, viz. (within Edifices, Courts, places, gardens, orchards, or houses within the Porter's ward of any of the house or houses above rehearsed, or within any gardens, privy walks, orchards, tyltyards, woodyards, tennis plays, cock fights, bowling allies, near adjoining to any of the houses above rehearsed, and being part of the same, or within two hundred foot of the standard, of any outward gate or gates of any of the houses above rehearsed, commonly used for passage out or from any of the house or houses above specified) shallbe taken by the Coroner of the household of the King or his heirs, without adjoining of any other Coroner of any Shire, by the oaths of twelve or more of the Yeomen officers of the Kings etc. household, returned by the two clerks controllers, the Clerks of the Check, Clerks Marshal, or one of them for the time being, of the foresaid household, to whom the said Coroner shall direct his Precept (which Coroner etc. shall be assigned by the L. Steward for the time being.) And the said Coroner shall from time to time for ever without delay, certify under his Scale, and the Seals of such persons as shallbe so sworn before him, all such Inquisitions, Indictments, and Offices, upon the view of all dead bodies which shall be slain within any of the K. Palaces or houses, or other house aforesaid, before the said L. Steward, and in his absence before the Treasurer, controller, and Steward of the Marshalsey, or before two of them, whereof the said Steward of the Marshalsey to be one. And such Inquisitions and Offices so certified, shall be taken as good to all intents, as any Inquisition taken upon the view of the body of any person being dead, by any Coroner of any county of this Realm, hath been, or shallbe adjudged. St. 28. E. 1. 3 18 Whereas the foresaid stat. of 28. E. 1. hath ordained, One man Coroner of the K. house, and of the county. That if the death of a man doth chance in any county where the K. house is, and within the Verge, the Coroner of the same county shallbe commanded with the Coroner of the K. house to execute his office, and to enroll it. But if a murder or manslaughter be found within the county of M. within the Verge, by an Inquisition taken before one which is then both one of the Coroners of the county of M. and also Coroner of the K. house, Co. li. 4. 46. and then & there one is indicted of the same murder or manslaughter, this is a good indictment: for the intent and meaning of the said stat. of 28. Ed. 1. is performed, though not by two persons, yet by one man having two offices, and also the mischief recited in the said Act, is avoided: for though the Court doth remove, yet the Coroner of the county may proceed. ❧ Who shall be judge of Treason and Felony. 1HAuing written at large of Treasons and Felonies, and showed what sorts, and how many of either of them there be, and which of those were delivered us by the common law, and which ordained by statute: And declared who be principals, and who be accessories in the said crimes: how the offenders therein, upon a prick and guilt of conscience, do ofttimes break prison and endeavour to escape, and how by Hue and cry, and other means they be apprehended, and brought to be tried by the justice of the law: how they be accused by Appeals or Indictments, in what sort they shallbe restained and kept sub custodia legis, in prison, or by mainprize, or bail, until they have answered their said offences: And also having expressed what pleas the party accused hath to plead for himself, or other helps to defend himself, by whom and what means those pleas shallbe examined, and what favours be afforded him in the trial thereof: and what judgement, execution, & forfeitures the law doth inflict upon those that in contempt of her do commit the said capital and most grievous offence: And further, having dilated how a true man being upon malice, and falsely charged with felony by an Appeal, or Indictment, shall, in some satisfaction of his discredit and losses, recover damages against the appellant, his abettors, or the conspirators: And having laid open the authority & duty of the Coroner, who is a most ancient officer of trust in this Realm, & a special preserver of the peace of the King and the kingdom, I am now lastly to write who shall be judge in the foresaid Treasons and Felonies, and shall inflict punishment upon every transgressor of the said laws according to his desert. Wherein is to be considered, that the dead letter of the common or statute law, cannot be that judge, to inquire of felons, examine them, commit them to prison, indict them, arraign them, allow them their lawful trial, examine their causes, and yield them justice according to their several demerits by acquittal, or condemnation: but it must be Lex loquens, viz. That judge must be a man of learning and uprightness, which by his mouth will speak and attribute to every person, that which the wisdom and integrity of his heart doth conceive to be just, lawful, and due unto them. And though that judge ought so to be countenanced and protected by the regal authority, that he shall not need to fear the face of any man for doing of justice, and shall be enabled to crush and suppress all offences within his jurisdiction; yet the king himself cannot be that judge, The K. cannot be judge in Treason or Felony. nor sit in judgement in causes of treason or felony, because he is one of the parties to the judgement: for all treasons & felonies be done, & be supposed to be done contrary to the peace, crown, & dignity of the K. And further, the escheats and other forf. of lands, leaves, goods, and cattles, which do come by the attainder of any person of treason or felony, do for the most part by the law accrue to the king: And so if the King might be judge, he should be judge in his own cause, which Ius gentium doth not permit. But the King by his Commission may commit that authority to others, who may judge between him and the supposed offendor. What sort of men ought to be judges. And the King ought to make choice of such a man to be judge as is wise, and doth fear God, who hath truth in his mouth, and no covetousness in his heart, who will neither decline from the trodden path of justice, to the right hand nor to the left, for the hope of prosperity, or fear of adversity, nor will draw the King's sword to revenge his own wrongs; who will deny justice to none, neither himself will expect or take reward of any; who will freely licence all persons to prosecute their right, give full ear to the widows complaint, further the cause of the orphan and fatherless, and suffer none that he can help to receive wrong; who will not fear the countenance of the mighty, nor disdain the baseness of the poor, whom neither hatred, favour, or private affection will move, but without respect of persons will yield to each wight, that which his cause requireth; who will remember, and never forget, that God hath endowed him with knowledge and understanding, Ecclesiast. 17 that he hath made a covenant with him, to show him what true justice and judgement is, that all his actions be continually in God's sight, and that every moment from heaven the King of Kings doth behold them: And finally, who duly respecting both the commissions which he hath received from God and his prince, will so indifferently temper justice with mercy towards the poor prisoner standing trembling before him at the bar, as he will hope for mercy when himself shall make his last and great account before the God of justice and mercy. 2 Whereas divers ancient Prerogatives and Authorities of justice, appertaining to the Crown of this Realm, were severed and taken from the same by sundry gifts of the King's Progenitors, Kings of this Realm, to the great diminution of the royal estate of the same, and to the hindrance and delay of justice: St. 27. H. 8. 25. for the reformation whereof, by a Statute made Anno 27. H. 8. it was enected, That no person or persons, of what estate, condition, None shall make justices but the King. or degree soever they be, shall have any power or authority to make any justices of Eyre, justices of Assize, justices of Peace, or justices of jail delivery, but that all such Officers and Ministers, shall be made by Letters Patents, under the King's great Seal, in the name, and by authority of the King and his heirs, Kings of this Realm, in all Shires, Counties, Counties Palantine, and other places of this Realm, Wales, and the Marches of the same, or in any other his Dominions, at their pleasure and wills, in such manner and form, as justices in Eyre, etc. be commonly made in every Shire of this Realm: Any grants, usages, Acts of Parliament, or other thing notwithstanding. The judge upon the arraignment of a Péer●e of the Realm. 3 When a Peer of the Realm, and Lord of the Parliament, 1. H. 4. 1● 13. H. 8. 13. 10. Ed. 4. 6. is to be arraigned upon any Treason or Felony, whereof he is indicted, and whereunto he hath pleaded not guilty, the King by his letters patents shall assign some noble and sage Lord of the Parliament, to be high Steward of England for the day of his arraignment, who before the same day shall make a Precept to his Sergeant at Arms, that is appointed to serve him during the time of his Commission, to warn to appear before him xviij. or xx. Lords of the Parliament, upon the same day. etc. S. Trial 2. 4 Where Treasons, Misprisions of Treasons, Murders, Manslaughters, and other malicious strikings, by reason whereof blood hath been shed, against the K. peace, were often committed within the limits of the King's palace, or house, or other houses where his Majesty was abiding in his royal person: which offences when they be done, be best known by his highness Officers of his household, and by his servants of his Check roll: And if his Majesty shall happen to remove from such his palace, or house, or other house where such offences were done, before the trial and determination thereof, than such offences might not lawfully be tried, heard, and determined by and before the said Officers, but be remitted to be tried and determined by the order of the Common law, by reason whereof the punishment of the said offenders, in such cases, hath been long time delayed, and sometime their offences forgotten, and not remembered, and so they escaped unpunished: For the redress whereof, by a Statute made Anno 33. H. 8. it was enacted, St. 33. H. 8. 12. That all Treasons, Misprisions of Treasons, Murders, Manslaughters, Bloudsheds, and other malicious strikings, by reason whereof blood shall be shed, against the King's peace, which shall be done within any the Palaces or houses of the King or his heirs, or within any other house or houses, at such time as his Majesty shall be then abiding in his royal person, shall be inquired of, tried, heard, and determined within any of the King's houses, or other house where his Majesty shall be abiding, judge of treasons and felonies committed in the K. house. before the Lord Steward of the King's household, and in his absence, before the Treasurer, and controller of the K. household, and Steward of the Marshalsey for the time being, or two of them, whereof the Steward of the Marshalsey to be one, by virtue of their offices, without any Commission, or other authority to them given. And whether the King shall be removed from the house where such offences shall be done, or not, before they be inquired of, heard, and determined, yet such offences shall be inquired of, tried, heard, and determined before the King's Officers of his household before named, or two of them, by the Inquisition and verdict of his household servants in his Check roll, at such Palace or house where his Majesty shall be at any time abiding, in manner and form as is hereafter expressed. The two Clerks controllers, Clerks of the Check, and Clerks Marshals for the time being, of the K. household, or one of them, upon a Precept to them, or any of them made by the Lord Steward, or in his absence, by the said Treasurer and controller of the King's household, and the said Steward of the Marshalsey, or by two of them, whereof the said Steward of the Marshalsey to be one, shall have power to summon, warn, and return the names of twenty four persons, being yeomen officers of the Kings said household in the said Check roll, to inquire of such Treasons, Misprisions of Treasons, Murders, Manslaughters, and other malicious strikings, by reason whereof blood shall be shed, against the King's peace, before the said Lord Steward, and in his absence before the said Treasurer, controller, and Steward of the Marshalsey, or before two of them at the least, whereof the Steward to be one. And it shall be lawful to the said Lord Steward, and in his absence, to the said Treasurer, controller, and Steward of the Marshalsey aforesaid, or two of them, whereof the said Steward to be one, before whom such Returns shall be so made as is aforesaid, to cause such number of the said four and twenty persons so returned, above the number of twelve persons, as to him or them shall seem expedient, to inquire of such Treasons, Misprisions of Treasons, Murders, Manslaughters, or other malicious strikings, by reason whereof blood shall be shed, against the King's peace, within the said Palaces, or other the said houses, at any time committed. And if any person or persons be indicted by the said jury so sworn before them as is aforesaid, or by Inquisition before the Coroner of the said household, and certified before the said Lord Steward, or in his absence before the said Treasurer, controller, and Steward of the Marshalsey, or two of them, whereof the said Steward of the Marshalsey to be one, Then immediately the said Lord Steward, or etc. Treasurer, controller, and Steward of the Marshalsey, or two of them, whereof &c. before whom the said Presentment, Inquisition, or Indictment shall be so found, or certified by the said Coroner, shall arraign before them every such person so indicted, according to the course of the common law, and forthwith after issue joined between the King and the prisoner so arraigned, the same day and place, or any other, shall make another Precept to the said Clerks controllers, Clerks of the Check, and Clerks Marshals of the said household, or to one of them, to summon and return one jury of four and twenty persons, to appear before the said Lord Steward, or etc. Treasurer, controller, and Steward of the Marshalsey, or two of them, whereof the said Steward of the Marshalsey to be one, at such day, time, and place, and upon such pain as shall be then limited of the sergeant and Gentlemen Officers of the King's chamber, and of the said household, which shall take wages by the K. Check roll. And the said Steward, or etc. Treasurer, controller, and Steward of the said Marshalsey, or two of them, whereof the said Steward to be one, before whom such jury shall be so returned, shall cause twelve of the same jury to be sworn, truly to try between the King and such person, as shall be so indictected and arraigned of such Treasons, Misprisions of treasons, Murders, Manslaughters, and other malicious strikings, by reason whereof blood shall be shed, against the King's peace, or any of them. And if any such person or persons so arraigned be found guilty of any Treason, Misprision of Treason, Murders, or Manslaughters, than he shall have judgement of life and member, and suffer such pains of death, and shall forfeit all their manors, lands, tenements, goods, and cattles, in like manner as if the same person and persons had been found guilty of any of the said offences by the order of the common law, without the benefit of Clergy, or Sanctuary. Provided always, that the trial of Peers for any offence before mentioned shallbe as it hath been used in times past. St. 3. H. 7. 14 5 By the stat. made Anno 3. H. 7. it was ordained, That the Steward, Treasurer, judges of conspiracy in the K. house. and controller of the King's house for the time being, or one of them, shall have authority to inquire by twelve sad men, and discreet persons, of the Check rol of the King's household, if any servant admitted to be his servant sworn, and his name put in the Check roll of his household, whatsoever he be (serving in any office or room reputed and taken under the estate of a Lord) make any confederacies, compassing, conspiracies, or imaginations, with any person or persons, to destroy or murder the K. or any Lord of this realm, or any other person sworn to the king's Counsel, Steward, Treasurer, or controller of the King's house: And if it be found before the said Steward for the time being, by the said xii. sad men, that any such of the K. servants, as is abovesaid, hath confederate, compassed, conspired, or imagined, as is abovesaid, he so found by the inquiry, shall be put thereupon to answer. And the Steward, Treasurer, and controller, or two of them, have power to determine the same matter according to the law: and if he put him in trial, than it shall be tried by other twelve sad men of the said household. And if such misdoers shall be found guilty by confession, or otherwise, the said offence shall be judged felony. S. Felony by Stat. 1. judges within the Verge. 6 The justices of the King's Bench, the justices of Oyer and Terminer, Co. li. 4. 47. justices of jail delivery, and justices of Peace, have power to inquire, hear, and determine all murders and felonies within the Verge, for that their authority and jurisdiction is general through the whole county, and so it hath been always used. 7 The justices of the King's Bench, judges of the K. Bench. without having Commission, may hea●e and determine all manner of Treasons and Felonies. And by the Stat. of Anno 35. H. 8. & Anno 5. Ed. 6. it is enacted, St. 35. H. 8. 2 St. 5. E. 6. 11 That all manner of offences being already made or declared, or hereafter to be made or declared, by any laws and statutes of this Realm, to be Treasons, Misprisions of Treasons, or concealments of Treasons, & done, perpetrated, or committed, or hereafter to be done, judges of Treasons committed beyond the Sea perpetrated, or committed by any person or persons, out of this Realm of England, shall be inquired of, heard, and determined before the King's justices of his Bench, for Pleas to be holden before himself, Dy. fol. 287 & 298. by good and lawful men of the same Shire where the said Bench shall sit, and be kept, or else before such Commissioners, and in such Shire of this Realm, as shall be assigned by the King's Commission, and by good and lawful men of the same Shire, in like manner and form to all intents and purposes, as if such Treasons, Misprisions of Treasons, and concealments of Treasons, had been done and committed within the same Shire where they shallbe so inquired of, heard, and determined. Provided always, that if any Peers of this Realm shall be indicted of any such Treasons, or other offences, than they shall have their trial by their Peers, as heretofore hath been accustomed. 8 By the Stat. entitled De finibus, St. 27. E. 1. 2. St. 4. E. 3. 2 made Anno 27. Ed. 1. and also by the stat. of Anno 4. E. 3. it is ordained, That good and discreet persons (other than of the Benches, judges of jail delivery if they may be found sufficient) shallbe assigned in all the shires of England, to take Assizes, juries, & Certifications, and to deliver the gaols. And the justices assigned to deliver the gaols, shall have power to deliver the same gaols of those that shallbe indicted before the gardens of the peace. And the said gardens shall send their indictments before the justices. And they shall have authority to inquire of Sheriffs, Gaolers, and others, in whose ward such indicted persons shall be, if they make deliverance, or let to mainprize any so indicted, which be not mainpernable, and to punish the said Sheriffs, Gaolers, St. 3. H. 7. 1 and others offending against this Act. And by the stat. of An. 3. H. 7. it is enacted, That the wife or heir of any person murdered, or slain, judges in appeal of murder or manslaughter as case shall require, may commence their Appeal in proper person, at any time within the year after the felony done, before the Sheriff & Coroners where the said felony and murder was done, or before the King in his Bench, or justices of jail delivery. 9 To the intent to enable the Iust. justices of Nisi prius judges in felony & treason of Nisi prius to give judgement of such persons as be either attainted or acquit of treason or felony, by a stat. made an. 14. H. 6. it was established, St. 14. H. 6. 1 That the Just. before whom Inquests, Inquisitions, and juries shallbe taken by the K. writ of Nisi prius, according to the form of the stat. thereof made, shall have power of all the cases of felony, and of treason, to give judgement. Though this stat. of 14. H. 6. doth give authority to justices of Nisi prius to give judgement as well upon acquittal, 10. Ed. 4. 14 as upon attainder of treason, or felony, notwithstanding if in an Appeal the defendant be acquit before them, they cannot award damages against the plaintiff, Awarding of damages, and enquiring of abettors. nor inquire of abettors: for their power by this stat. extendeth but to treason and felony only, whereof they may give judgement, and of nothing else: for the awarding of damages, and enquiring of abettors, doth yet remain as it was at the common law. St. 33. H. 8. 23. 10 By the stat. of Anno 33. H. 8. it is ordained, judges of murders by special commission. That if any person or persons, being examined before the K. Counsel, or three of them, upon any manner of murders, do confess any such offences, or that the said Counsel, or three of them, upon such examination, shall think any person so examined, to be vehemently suspected of any murder, then in every such case, by the king's commandment, the K. Commission of Oyer and Terminer, under the great Seal, shallbe made to such persons, and to such Shires, or places, as shallbe appointed by his Highness, for the speedy trial, conviction, or deliverance of such offenders: which Commissioners shall have authority to inquire, hear, and determine all such murders within the Shire, and places limited by their Commission, by such good and lawful persons as shall be returned before them by the Sheriff, his minister, or other having power to return writs & process for that purpose, in whatsoever other Shire or place within the K. dominions, or without, such offences were committed. But peers of the realm being indicted of the said offence, shall be tried by their Peers. This stat. was also made for the trial of treasons, and misprision of treasons, by special commission. But by the stat. St. 1. & 2. P. & M. 10. of an. 1. & 2. P. & M. it was enacted, That all trials to be made for any treasons, shallbe only used according to the course of the common law. 11 Where Traitors, Pirates, thieves, Robbers, Murderers, and confederators upon the Sea, many times escaped unpunished, because the trial of their offences hath heretofore been ordered, judged, and determined before the Admiral, or his Lieutenant, or Commissary, after the course of the Civil laws, the nature whereof is, that before any judgement of death can be given against the offenders, either they must plainly confess their offences (which they will never do without torture or pains) or else their offences must be so plainly and directly proved by witnesses indifferent, such as saw their offences committed, which cannot be gotten but by chance at few times, because such offenders commit their offences upon the Sea, and many times murder and kill such persons being the ship or boat where they commit their offences, which should be witness against them in that behalf: and also such as should bear witness, be commonly Mariners, and shipmen, which, because of their often voyages and passages upon the Sea, depart without long tarrying and protracting of time, to the great costs and charges as well of the King, as such as would pursue such offenders: For reformation whereof, by a Statute made Anno 28. H. 8. it was enacted, That all Treasons, St. 28. H. 8. 15. Felonies, Robberies, Murders, and Confederacies, committed in, or upon the Sea, or in any other Haven, River, Créeke, or place where the Admiral or Admirals have, or pretend to have power, authority, or jurisdiction, shall be inquired, tried, heard, determined, and judged in such Shires and places in the Realm, as shall be limited by the King's Commission or Commissions, to be directed for the same, in like form and condition, as if any such offence or offences had been committed or done in and upon the land: And such Commissions shall be had under the great Seal, directed to the Admiral or Admirals, judges in piracy where the Admiral hath jurisdiction. or to his or their Lieutenant, deputy and Deputies, and to three or four other such substantial persons as shall be named or appointed by the Lord Chancellor for the time being, from time to time, and as oft as need shall require, to hear and determine such offences, after the course of the common laws of this land, used for Treasons, Felonies, Robberies, Murders, and Confederacies of the same, done and committed upon the land within the Realm. And such persons to whom such Commission or Commissions shall be directed, or four of them at the least, shall have authority to inquire of such offences, and every of them, by the oaths of twelve good and lawful inhabitants of the Shire limited in their Commission, in such manner and form, as if such offences had been committed upon the land within the same Shire. And every Indictment found and presented before such Commissioners, of any Treasons, Felonies, Robberies, Murders, Manslaughters, or such other offences committed or done in or upon the Seas, or in, or upon any River, Haven, or creak, shall be good and effectual in the law. And if any person or persons happen to be indicted for any such offence done upon the Seas, or in any other place above limited, than such order, Process, judgement, and execution shall be used, had, done, and made, to, and against every such person and persons so being indicted, as against traitors, felons, and murderers, for treason, felony, robbery, murder, or other such offences done upon the land, as by the law of this Realm is accustomed. And the trial of such offence or offences, if it be denied by the offendor or offenders, shallbe had by xii. lawful men inhabited in the Shire limited in such commission, which shall be directed as is aforesaid, No challenge for the hundred and no challenge to be had for the Hundred. And such as shallbe convict of any such offence or offences, by verdict, confession, or process by authority of any such commission, shall have and suffer such pains of death, losses of lands, goods, and cattles, as if they had been convicted of any treasons, felonies, robberies, or other the said offences done upon the land, without benefit of Clergy, or Sanctuary. Provided always, that this Act shall not extend, or be prejudicial to any person or persons, for taking of any victuals, Taking things upon necessity. gables, ropes, anchors, or sails, which any such person or persons compelled by necessity, taketh of, or in any ship which may conveniently spare the same, so the same person or persons pay out of hand for the same victual, gables, ropes, anchors, or sails, money, or money worth, to the value of the thing so taken, or do deliver for the same a sufficient bill obligatory, to be paid in form following, viz. if the taking of the same things be on this side the straits of Marrok, then to be paid within four months: and it beyond the said Straits, then to be paid within twelve months next ensuing the making of the said bill. And that the makers of the said bills well and truly pay the same debt, at the day to be limited within the said bills. Provided always, Commissions directed into the fine ports. that whensoever any such Commission for the punishment of the offences aforesaid, or of any of them, shallbe directed or sent to any place within the jurisdiction of the five Ports, that then every such Commission shall be directed unto the Lord Warden of the said Ports for the time being, or to his deputy, and unto three or four such other persons as the Lord Chancellor for the time being shall appoint. And that when any Commission shall be directed unto the five Ports, for the inquisition and trial of any of the offences expressed in this Act, that every such inquisition and trial to be had by virtue of such Commission, shall be made and had by the inhabitants in the said five ports, or the members thereof: Any thing in this Act to the contrary notwithstanding. So much of this stat. as concerneth the trial of treasons, is altered by the stat. of Anno 1. & 2. P. & M. 10. and the same made triable only by the course of the common law. St. 18. E. 3. 2 12 The justices of peace of every county by virtue of the K. commission to them directed, and by force of the stat. of Anno 18. Ed. 3. be judges in felony, Iust. of peace judges in felony. and have authority to hear and determine felonies: the words of which stat. be these, viz. Two or three of the most worthy men of counties, shallbe assigned keepers of the peace by the K. commission: and at what time need shall be, the same, with otherwise and learned in the law, shall be appointed by the K. commission, to hear and determine felonies, and trespasses done against the peace in the same county, and to execute punishment reasonably, according to law, reason, and the manner of the fact. And the words of the king's commission which doth authorize justices of peace to be judges of Felony, and to hear and determine felonies, amongst others, be these, viz. jacobus Dei gratia Angliae, The words of the commission of the peace. Scotiae, Franciae, & Hiberniae Rex, fidei defensor etc. Praedilectis A. B. C. D. E. H. etc. Salutem. Sciatis quod assignavimus vos, & quoslibet duos, vel plures vestrum (Quorum aliquem vestrum A. B. C. D. unum esse volumus) justitiarios nostros, ad pacem nostram in comitatu nostro Buckingham conseruandam, & ad inquirendum per sacramentum proborum & legalium hominum de comitatu praedicto (per quos rei veritas melius sciri poterit) de omnibus & omnimodis felonijs, transgressionibus etc. ac de omnibus & singulis alijs malefactis & offensis de quibus justitiarij nostri pacis legitimè inquirere possunt aut debent per quoscunque aut qualitercunque in Comitatu praedicto factis sive perpetratis, Vel quae in posterum ibidem fieri, vel attemptari contigerit, etc. Et ad omnia & singula Felonias etc. indictamenta praedicta, ceteraque omnia & singula praemissa secundum leges & statuta Regni nostri Angliae (prout in huiusmodi casu fieri consuevit & debuit) audiendum & terminandum. And though it doth plainly appear by the words of the foresaid Commission, that the King doth give authority to justices of Peace, to inquire of, hear, and determine all manner of Felonies, viz. as well of such as be made Felonies by Statute, as of such offences as were Felonies by the Common law: yet because there hath been a scruple and question moved by some, that the foresaid Statute of Anno 18. Edw. 3. did mean, and was to be expounded to give authority to justices of Peace, to inquire of, hear, and determine those felonies only which were at the time of the making of that Statute, felonies, viz. That were felonies by the Common law, and not to give them authority to inquire of, hear, and determine those offences as felonies, which were made felonies by several Statutes ordained since that time, and that the King's Commission authorised by that Statute, did give them no further authority than that Statute meant: Therefore not to add to the law, but to satisfy every reader, and to make that thing more plain and perspicuous to all men, which to some did seem doubtful, the makers of the stat. of anno 8. El. 3. touching the transporting of sheep, and of the stat. of anno 25. H. 8. 6. ordained against buggery, and of the stat. of anno 18. H. 6. 19 established to punish Soldiers that depart from their Captains without licence, and of the stat. of an. 39 El. 4. & an. 1. jac. 7. touching dangerous and incorrigible rogues, and of the stat. provided an. 39 El. 17. against wandering soldiers and mariners, and of the stat. of an. 22. H. 8. 11. established against the cutting down of powdike, and of the stat. of an. 43. El. 13. enacted against the carrying away of any persons against their wills out of Cumberland, Northumberland, Westmoreland, or the Bishopric of Durham, did by special words ordain, that the I. of the peace of the counties wherein any of the foresaid several offences were committed, should have authority at their general Quarter Sessions, to inquire of, hear, and determine the said offences. And the like authority was given by the said several stat. to the Iust. of Assize, and Iust. of jail delivery, to inquire of, hear, and determine the said offences in the counties where the same were committed within their several commissions. And by the stat. of an. 1. E. 4. it wa● ordained, That the I. of peace of every county, St. 1. E. 4. 2 shall have authority and power to arraign and deliver all person and persons indicted or presented before the Sheriffs, Vndersherifes, their Clerks, Bailiffs, or Ministers, or any of them, in their Turns or lawdays. And as of other felonies, 3. H. 7. 5. 5. E. 6. D. 69 9 H. 4. 1. so I. of peace may inquire of murder, Murder. because wilful murder is felony. But Iust. of peace cannot inquire of treason, Treason. for neither the before mentioned stat. of 18. E. 3. nor the words of their commission, do authorize them so to do. The Lord of a Manor judge in felony. 13 There be some that have liberty of Soc and Sac, Tol and Them, Bracton de Corona, cap. 35. 2. R. 3. 10. Infangthéefe and Outfangthéefe: these in their own courts may give judgement of him who is found within their liberty possessed of any manifest theft, as if he be hand having, and back bearing, and that Sathaber (viz. he whose the goods be) do pursue him: Kel. fol. 150 for unless he be in possession of the goods (though another doth pursue him as a thief) yet that Court, Hundred, or Wapentake, cannot hold plea of such a theft, nor make inquiry by the Country, whether such a man which was not possessed of the goods, be culpable, or not. Neither shall any wage battle without possession. It is called Infangtheefe, Infangthéefe. where a Thief is taken possessed of goods stolen within any such Manor or Liberty, who is commorant and dwelling within the same liberty, and one of the said Lords own people. Outfangthéefe, Outfangthéef. is a thief that is a stranger, coming from some other place into the Manor of the Lord who hath such a liberty, and is there taken with the manor. And yet he that hath such a liberty, cannot fetch one of his own people who hath committed larceny out of his liberty, and bring him into his liberty, and judge him there according to his liberty; for every person must receive the punishment of the law where he hath offended the law: But he may give judgement as well against his own people, as against strangers committing larceny, that be taken within his liberty. 46. Ed. 3. 15 14. H. 4. 15 And in this liberty of Infangthéefe and Outfangthéefe, and in waif and stray, and wreck of the sea, a man may prescribe, but so he cannot do in goods of felons and fugitives, for they do belong to the Crown, and cannot pass without the Kings grant. Fitz. Prescription 65 14 The custom of some country is such, A fellow first executed, and then judged. that if one hath committed burglary, or other felony, and he be pursued by hue and cry from town to town, and so taken flying, he must be beheaded in the presence of the inhabitants of four towns, and so by the usage of that country he is accounted a fellow: And this must be recorded in the Coroners roll, and after the Coroner must present it before the justices, and they will adjudge him a fellow. And so he must be first put to death, and after judged a fellow. FINIS. ❧ The general Titles of this Book. 1MEnace, Assault, Battery, Jmprisonment, Maiheming. 2 Riots, Routs, unlawful and rebellious Assemblies. 3 Force, and Forcible Entries, and Forcible detaining of possessions. 4 Forgery. 5 Perjury, and Subornation of Witness. 6 Maintenance, Champerty, Embracerie. 7 Deceit, covin, Collusion, Fraud. 8 Extortion, Exaction. 9 Oppression. 10 Treasons. 11 Homicides. 12 Felonies by the common Law. 13 Felonies by Statute. 14 Principal and Accessory. 15 Breaking of Prison, and Rescous. 16 Escapes of Felons. 17 Pursuit by Hue and Cry. 18 Appeals of Felony. 19 Jndictments. 20 Mainprize and Bail. 21 Confession of the offence. 22 Approver. 23 Sanctuary and Abjuration. 24 Pleading not guilty. 25 Trial of the plea of not guilty by Battle. 26 Trial by Peers. 27 Trial by the Country. 28 Challenges. 29 Evidence. 30 The Verdict. 31 Clergy. 32 The Kings Pardon. 33 Standing mute, or answering indirectly. 34 Judgement and Execution. 35 Forfeitures for Treason or Felony. 36 Corruption of Blood. 37 Restitution of stolen goods. 38 Damages in an Appeal. 39 A Writ of Conspiracy. 40 The Coroner and his authority and duty in Felonies. 41 Who shall be Judge in Treason and Felony. ❧ A brief effect of every Branch or Chapter in this Treatise. Menace, Assault, Battery, Imprisonment, Maiheming. Fol. 1. 1 THe evil fruits of menaces. Menacers shallbe imprisoned. The enormity of libeling and defaming. 2 The differences of Menacing, Assault, and Battery. 3 The declaration in trespass of menacing. A rebuke accounted a Menace or Assault. 4 Menacing a servant, whereby he departeth out of service. 5 Menacing a tenant, whereby he departeth from his tenancy. Menacing of a Lords Freeholder. 6 Menacing which is justifiable. 7 Menacing by going or riding armed. 8 Wearing of a privy coat a Menace. 9 Labourers shall wear no weapons, to prevent Menaces. 10 Assurances made by Menace. 11 What is an assault. What is a battery. 12 justifying of beating in his own defence. Bar in trespass of Assault and Battery. 13 justifying of beating in defence of others. The master's remedy for beating of his servant. 14 Battery in defence of his goods. Battery in defence of his land, lease, or way. 15 Battery in resisting of a justice of Peace. 16 A Schoolmaster beateth his Sholler. 17 A Master beateth his Apprentice. 18 Beating of a man that is frantic. 19 Beating of one that will not yield to arrest. 20 Beating of a servant departing out of service. Beating of a Ward. 21 Commandment of Battery. 22 Battery or hurting at some exercise or disport. 23 Battery by whipping of a vagabond. Punishments by the order of Law. 24 Battery for disobeying of a writ or warrant. 25 Arresting one in a Church that is doing divine service. 26 Disturbing of a Preacher in his Sermon. 27 Chiding in a Church or Churchyard. Smiting in a church or churchyard. Drawing or smiting with a weapon in a Church, or etc. 28 Drawing of blood within the king's palace. 29 Assaulting one which cometh to the Parliament. Assaulting the servant of a Parliament man. The liberty of the Clergy at a Convocation house touching assaults. 30 Assaulting a judge or juror. Striking in time or place of justice. 31 Arresting by watchmen. 32 Trespass for a battery before outlawry. 33 A man first indicted for battery, and after sued for the same. 34 What imprisonment is. Voluntary consent no cause of imprisonment. 35 Imprisonment by the commandment of the king or his justices etc. 36 Imprisonment for notorious and grievous offences. 37 Imprisonment for offences done vi & armis. 38 Imprisonment for Riots. 39 Imprisonment for holding land with force. 40 Imprisonment of one that is pursued by hue and cry. 41 Imprisonment of him that doth break the peace. Arresting of suspected persons. 42 Imprisoning of him that doth attempt to rob. 43 Assisting him to arrest that hath a warrant. 44 Breaking of a house to arrest, in what case lawful. 45 The sheriff doth arrest and doth not return his writ. 46 Arresting upon suspicion of felony. Causes of suspicion of felony. 47 Arresting upon doubt of Manslaughter. 48 A justice of peace his Warrant to arrest a fellow. 49 Arresting of an offendor, and committing him to the Constable. 50 Imprisonment until he had made an Obligation. 51 The servant not chargeable for the master's offence by imprisonment. 52 No imprisonment by force of a justicies. 53 Imprisonment by force of a warrant upon a Supplicavit. 54 Arresting him that would break the peace. 55 Imprisoning of a servant that doth assault his master. 56 In what cases imprisonment is lawful, and in what not. 57 Imprisonment for offences done to the justices of the realm. 58 What is maiheming. 59 How many sorts there be of maiheming. 60 Examination of a mayhem by the justices or Surgeons. 61 Where divers appeals of mayhem for one offence. 62 Principal and Accessary in mayhem. The judgement in an appeal of mayhem. 63 Mainprize in an appeal of mayhem. 64 Why mayhem is supposed to be done feloniously. 65 Bars in an appeal of mayhem. 66 Execution in an appeal of mayhem. 67 An action of Trespass maintenable after an appeal of mayhem. 68 The peace preserved, and affraies restrained by justices of Peace. The commission of the peace. 69 The commission doth chiefly respect the peace. Why they be called justices of the peace. Binding suspected persons to their good behaviour. 70 A justice of Peace may take surety of the peace. What the surety of the Peace is. Certificate of a Recognisance. The surety of good abearing. 71 For whom and against whom the surety of Peace is to be granted. 72 Upon what causes the surety of peace is to be granted. 73 Surety of peace enjoined by word or writing. 74 The serving of Process for the peace. A warrant of the peace. Who may serve it without writing, and who without showing it, and who not. Refusing to obey the warrant. 75 To which justice of Peace the party arrested is to be brought. 76 A warrant to find sureties to keep the peace. The party must offer his sureties. 77 Surety of Peace doth die with the king. The justices authority dieth with the king. 78 The sureties of the Peace must be named. 79 He that is bound to the Peace must appear at a day prefixed. 80 A Supersedeas for the peace. 81 Taking a Recognisance for the keeping of the peace. Taking a Recognisance for the good abearing. 82 A Release of the surety of Peace. The parties release of the peace. The justices Release of the Peace. 83 Causes of the breach of the Peace, or good abearing. 84 The Sheriff, Constable, and several other officers be conservators of the Peace. 85 Every able person, when need requireth, must be a conseruator of the Peace. 86 Menaces, Assaults, Batteries, etc. in some cases are punishable in the starchamber. Riots, Routs, unlawful and Rebellious Assemblies. Fol. 24. 1 The enormity of Riots. Statutes ordained to prevent forces or Riots. 2 The Court of starchamber authority to punish Riots etc. 3 What is a Riot. 4 What is an unlawful assembly. 5 What is a Rout. Rout by wearing of armour. 6 Lawful assemblies of three persons, or more. An assembly lawfully begun, doth end riotously. 7 Disturbing of Riotors. 8 The justices and Sheriffs etc. shall arrest Riotors. Recording of a Riot. 9 Inquiry of a Riot by the justices etc. A Precept to the Sheriff to return a jury to inquire of a Riot. The form of an inquisition of a Riot. 10 Certifying of a Riot. Traverse of a Certificate. 11 Process against offenders. 12 The forfeiture of justices, which do not inquire of Riots. 13 A Commission to inquire of the justices etc. default. 14 Upon the Commission the Coroner shall return the jury. What issues shallbe returned upon the jurors. 15 Where the Sheriff shall return the jury, and not the Coroner. 16 A Writ directed to inquire of Riots. 17 Riots shallbe inquired of at the King's costs. 18 The punishment of Riotors. 19 Each man shall help to repress Riots. 20 Bailiffs of Franchises. Riots in Cities and Towns corporat. 21 A jury to inquire of Riots. 22 Maintenance whereby a riot is not found. 23 What one justice of Peace may do alone in a Riot. 24 The justices must have notice of a Riot. 25 The parties agreement no discharge of the inquisition of a Riot. 26 What power of the County the justices shall use to repress Riots. 27 The justices record of a Riot, where no traverse thereunto. 28 The credit of the justices Record. Certificate of a Riot. 29 The process against Riotors. 30 The penalty for not executing of this statute. 31 A traverse to an indictment of Riot. 32 Twelve or above assembled to change laws. 33 Practising to destroy Parks, Ponds, Conduits, Common, or Way. Destroying of Dear, Coneys, Dovehouses, Fish. Pulling down houses, burning stacks of corn, etc. 34 Raising of unlawful assemblies by acts or words. 35 Relieving them which be assembled. 36 Unlawful assemblies above two, and under twelve. The remedy of the party grieved. 37 Raising of power to suppress unlawful assemblies. 38 A copiholder being required refuseth to serve the king. 39 A farmer required refuseth to serve. 40 Disclosing a commotion, wherein one is moved. 41 An able person required, refuseth to serve. 42 Attendance upon a Lieutenant. 43 The form of the Proclamation. 44 Hindrance of the Proclamation. 45 Other men's rights saved. 46 Procuring others to offend. 47 Unlawful assemblies by xl. or above. 48 A Lieutenant shall not appoint a deputy. 49 Aiding of the offendor before the offence. 50 The attainder of those offences no corruption of blood. Force, and Forcible Entries. Fol. 34. 1 Unlawful force is an enemy to peace. There shall be no forcible entry into lands. 2 The penalty of forcible entry into lands or benefices. 3 Holding possession by force. feoffment of lands for maintenance. An Assize or action of Trespass against a disseisor by force. The authority of officers in Cities and Towns enfranchised touching force. 4 A special Assize against a disseisor with force. 5 Several remedies for several offences by force. 6 A Precept to the Sheriff to impanell a Iury. The sheriff's forfeiture for not due executing of a Precept. The process against offenders in force. 7 The form of a Precept to the sheriff, to impanell a Iury. 8 The form of an inquisition of forcible entry. 9 A warrant to the Sheriff to make restitution. 10 Restitution awarded out of the King's bench. 11 No restitution, but where forces is found by inquisition. 12 Where no restitution against three years possession. Where restitution notwithstanding three years possession. 13 A Supersedeas to stay restitution. 14 Where force found, and yet no restitution. 15 A Mittimus to send to the jail such as do hold land by force. 16 A justice may inquire of Forcible Entries, without complaint. 17 In an action of forcible entry the writ must be Vi & armis. 18 Who may bring an action of Forcible entry. 19 He that hath title, entereth by force. 20 He that hath possession, sueth a Writ of Forcible Entry. 21 Forcible entry of a Rent or Common. 22 Forcible entry to the use of another. Forcible detaining by words only. 23 jointenants or Tenants in common expelling each other by force. 24 Who may bring a Writ of Entry upon the Statute of 5. Richard. 2. 25 Turning a watercourse by force. 26 The plea of not guilty in Forcible entry The finding of the special matter doth charge or discharge the defendant of force. Presentment of Forcible entry. 27 One action for entering and detaining with force. 28 A writ upon the Statute of North-hampton. 29 What shallbe said to be force. Force by number of servants. Force by number of weapons. 30 Who may make a Forcible entry. 31 What force is lawful to the persons of men. 32 Where the house of a man may be broken by force, & where not. 33 A particular person may defend himself and his by force. 34 The Writ of Vi laica removenda. 35 Where force shallbe removed for the K. Incumbent, where not. Forgery. Fol. 43. 1 Forgery, Perjury, and Maintenance do tend to the breach of the Peace. 2 The enormity of Forgery. A repeal of former Statutes of Forgery. 3 Forging of deeds, whereby another's lands shall be troubled. 4 Forging a deed, whereby a lease or annuity may be claimed. 5 Several remedies against a forger. 6 A forger not twice punished for one offence. 7 The plaintiffs release of forgery shall only discharge his own remedy. 8 The punishment for the second offence of forgery. 9 The justices of Assize shall hear and determine forgery. 10 Forging of deeds before the statute of 5. El. Pleading of a forged deed made before the said statute. 11 Persons not chargeable of forgery by the said stat. of 5. El. 12 Forging of a customary book. 13 The process to levy costs and damages of a forger. 14 The kings pardon of forgery. 15 Forging of a Testament. 16 Inserting more in a will then is directed. 17 Pleas in bar of forgery. 18 Where one shall have an action of Forgery, though he hath but a right to the land. 19 Where no title to land, lease, etc. no action of forgery. 20 Forging of a deed touching jointenants lands. 21 One sealeth a deed by another's commandment. 22 One forgeth a deed, and another doth publish it. 23 Forgery by antedating of a deed. 24 Getting of other men's goods by forged letters or tokens. 25 Suspected persons of that kind of forgery called before the justices. 26 Forging of a Testimonial. Perjury, Subornation. Fol. 48. 1 Truth is to be tried by the oaths of men. The credit of an oath. 2 What sorts of persons are to be deposed, and what not. 3 All the parties to the execution of justice sworn. Causes of suspicion in Sheriffs in impanelling of jurors. 4 Every juror ought to be an honest and lawful man. Challenges of jurors suspected. 5 A witness cannot be a juror. 6 Perjury suspected by delivery of his verdict before hand. 7 Perjury suspected by lying at the charge of one of the parties. 8 Perjury suspected by being an arbitrator in the cause in question. 9 Perjury suspected by combination. 10 Perjury suspected if one of the parties and a juror be in suit of law. 11 Perjury suspected, for that the juror passed against him before. 12 Perjury suspected in respect of subjection or government. 13 Perjury suspected in respect of alliance, kindred, or profit. One godfather to the others child. 14 Perjury suspected in respect of ignorance of the cause. Want of Hundredors. Want of the View. 15 Perjury suspected in respect of the poverty of the jurors. 16 The judgement in an Attaint at the common law, against a jury proved perjured. 17 The judgement in an Attaint in London. An Attaint where the thing in question amounteth to 40. pounds, and where not. 18 The meaning to commit Perjury punished. Decies tantum. Embraceors. 19 The punishment of Perjury committed by an inquest in Wales. 20 Perjury committed by witnesses. A witness upon process served shall appear. 21 The penalty for procuring of unlawful Perjury. 22 The penalty for committing of wilful Perjury. 23 In what Courts Perjury shallbe punished. 24 Proclamation of the statute of Perjury. 25 Perjury punished in the spiritual Court. 26 Perjury punished in the starchamber. 27 Perjury punished in Bankrupts. Perjury committed by witnesses for Bankrupts. 28 Perjury committed upon an indictment of Riot. Perjury upon an indictment of Felony. 29 Perjury in proving a Suggestion for a prohibition. 30 A suit upon Perjury in the Chancery. 31 Where Perjury shall be punished in the temporal court, and where in the spiritual. Maintenance, Champerty, Embracerie, and buying of Titles. Fol. 56. 1 What Maintenance is, and the enormity thereof. 2 Maintenance by men of authority. 3 Maintenance by combination. Maintenance by noblemen's officers. 4 Maintenance by champerty. Who be champertors. Pleaders may give counsel for their fees. The punishment of champertors. 5 What is Champerty, and what not. 6 Maintenance by Embracery. Maintenance by jurors. The penalty of maintenance in jurors and Embraceors. 7 Maintenance punished by the writ of Decies tantum. 8 Maintenance by Ambidexter. 9 Maintenance of suits in law, and the penalties thereof. 10 Maintenance by buying of pretenced Titles. 11 What is selling of a pretenced Title. What is a pretenced Title. 12 Maintenance by giving of liveries, and retaining of servants or officers. 13 The publishing, enquiring of, and punishment of Maintenance. 14 Why the pursuing of maintenance is left out of the statute of 18. Eliz. 15 Assurances to have maintenance void. Lands gotten by force assured to have maintenance. 16 What maintenance is punishable, and what justifiable. 17 It is no maintenance in a juror for giving of his verdict. Maintenance in a juror, by suing for judgement. 18 What is Maintenance in a juror, and what not. 19 Maintenance by speaking of words. Maintenance by coming to the bar with one of the parties. 20 Maintenance by giving of money to labour a Iury. 21 What is maintenance in witnesses, and what not. 22 Maintenance by procuring of an Indictment. 23 What is maintenance in a Mainpernor. 24 Maintenance in respect of his interest in the land. Maintenance in respect of his possibility to have the land. Maintenance in respect of his warranty. 25 Maintenance in respect of his rent. A Lord may maintain his tenant. 26 Maintenance in respect of his debt. 27 Maintenance in respect of his title to goods. Maintenance by detaining of a writing delivered in trust. 28 Maintenance in respect of his joint estate with others. Maintenance by all the inhabitants of a parish. 29 Maintenance of the poor in their suits. Clerks, counsellors, and Attorneys assigned to aid the poor. 30 Maintenance in respect of kindred or alliance. Unlawful maintenance is continual during that suit. Maintenance in respect of Gossiprie. 31 Maintenance in respect the party could not speak English. 32 Maintenance in a professor of the Law. 33 Maintenance by an Attorney. 34 Maintenance in respect of neighbourhood. 35 In what cases the master may maintain his servant. In what cases the servant may maintain his master. Deceit, covin, Collusion, Fraud. Fol. 67. 1 The multitude and enormities of deceits and frauds. 2 The reward for pains, and punishment for deceits of officers towards the Law. A judge. A Clerk. A Sergeant. A Pleader. A Philozer. An Exigenter. No office of justice shall be sold or bought. No man shallbe justice of Assize in his own County. 3 Who shallbe Attorneys. Solicitors. The penalty for following a suit in another's name. What acts done by Attorneys in several cases shall be adjudged deceit. 4 The Law rejecteth deceitful and fraudulent acts. A fine levied of land to defraud the right owner thereof, shall be void. 5 A fine levied of ancient demesne land, to defraud the Lord of his Signiory, is voidable. 6 How a recovery of land by deceit shallbe avoided. 7 A Scire facias upon a recovery by deceit avoided. A recovery of debt by deceit avoided. A judgement to avoid the meaning of a Statute. The executors shall have remedy for a deceitful recovery against the Testator. 8 Deceit upon a recovery in a Quare impedit. Deceit upon a recovery in waist. 9 Deceit upon a recovery in a Praecipe in capite. 10 Where a good Title shall be impaired by a covenous recovery thereof. 11 A Warranty devised by deceit. 12 Deceit by getting of a Protection. 13 Deceit by purchasing of a writ to charge another. 14 Deceit by purchasing of a writ in another's name. Deceit for procuring one to sue another. 15 Deceit by acknowledging of a statute in another's name. Deceit by doing of a judicial act in another's name. 16 Deceit by forging of a resignation of a Benefice. 17 Deceit by conveying of land to one man, which before was bargained to another. 18 Deceit by not performing of his Warranty. 19 Deceit by confession of an action, wherein he hath no interest. 20 Deceit by the aliening of the goods of his wife, from whom he meaneth to be divorced. 21 Sale of goods in open Market by deceit and covin. 22 A fraudulent assurance to defeat the discontinue in tail of his plea of Assets per Descent. 23 Fraudulent assurance to defeat a Lord of his Ward, Marriage, etc. 24 He that is not party to a fraud shall sustain no loss by it. 25 Deceit & collusion to bring land into mortmain. Lands assured in mortmain to Churches, Chapels, etc. Collateral assurances to defraud etc. Which be charitable and lawful uses. 26 covin by a particular Tenant, to deceive him in the reversion. 27 covin by him in the reversion, to deceive the lessee for years. covin to avoid a Statute or recognisance. 28 Fraudulent deeds to avoid other men's duties etc. The forfeiture of parties to fraudulent deeds, who do justify the same. Common recoveries. Vourcher in Formedon. Estates made upon good consideration and bonafide. 29 Fraudulent deeds to avoid forfeitures shallbe voided. 30 A deed without fraud must be made upon good consideration and bonafide. Infallible marks of a fraudulent deed of gift. How a deed of gift may be made without fraud. 31 Fraudulent assurances to deceive purchaser. The forfeiture of parties to fraudulent conveyances, which do justify the same. Conveyances made upon good considerations, and bona fide. Conveyances with condition of revocation, or alteration. Mortgages. 32 A purchasor doth know before of a fraudulent deed. 33 The father maketh a fraudulent lease, and the son selleth the land. 34 A woman's jointure made by fraud. 35 Fraudulent deeds to avoid successors of dilapidations. 36 An action popular sued by collusion and fraud. 37 Fraudulent possessing of Bankrupts Lands, Goods, or Debts. 38 Fraudulent administration of intestate goods. 39 Fraudulent conveyances of Abbey lands. 40 Several deceits and frauds in merchandises and men of trade. 41 Deceit by selling of unwholesome victual. Extortion, Exaction. Fol. 82. 1 What is Extortion. What is Exaction. 2 Exaction by taking of reward for a report. 3 Extortion in the Sheriff, Coroner, or other officers. 4 Extortion in a Sergeant, Crier, or Marshal of a judge. 5 Extortion in a Coroner. 6 Extortion in a Sheriff, undersherife, or Bailiff, for making of arrests etc. 7 Extortion in a Sheriff, for sparing to return a juror. 8 Extortion in a Sheriff, for the serving of an Execution. 9 Extortion in the Chirographer of the common place. 10 Extortion in the king's auditors, or their Clerks. 11 Extortion in the King's Receivers. Extortion in them who do pay fees or pensions. 12 Extortion in officers of the Exchequer. 13 Extortion in a Clerk of the Signet or privy Seal. 14 Extortion by officers of the faculties. 15 Extortion by Governors upon such as be made apprentices or freemen. 16 Extortion by the officers of the Court of Wards. 17 Extortion in taking of Obligations for the payment of first fruits. 18 Extortion by Escheators. 19 Exaction by the Admiral etc. upon them who travail for Fish. 20 Extortion by the marshal of the king's house. Extortion by a servitor of bills in the marshal's Court. 21 Exaction by Muster-masters to spare the taking of soldiers. Exaction by captains of their soldiers. 22 Extortion by taking of Scavage of Merchants. 23 Extortion by the Clerk of the Statutes or etc. 24 A prevention of extortion by attorneys, in taking of excessive fees. An attorney delaying of a suit, or demanding more than is due. 25 A prevention of Extortion in stewards of Courts. 26 Extortion in gaugers, searchers, and packers of fish. Extortion in Ordinaries and their Officers for probat of Testaments, Administrations, etc. 28 Extortion in an Ordinary for the seal of a Citation. 29 Extortion in Parsons, Vicars, etc. for Mortuaries. 30 Exaction for presenting or collating to a benefice. 31 Exaction for admitting to a benefice. 32 Exaction for resigning, or exchanging of a benefice. 33 Exaction for making of ministers, or giving licence to preach. 34 Exaction for a voice in electing of a fellow or scholar into a College, or etc. 35 Exaction by taking money to resign a place in a College, etc. 36 Exaction by gathering money, which should discharge the fifteen of a Town. 37 Extortion by taking of an amerciament in a Court Baron. 38 It is no Extortion to take lawful fees. Taking of bar fees of a prisoner discharged. Taking of gloves of an offendor pardoned. 39 Extortion by taking of fees of him who doth appear gratis. Oppression. Fol. 91. 1 What Oppression is. Oppression by disseisins. Of what things one may be disseised. 2 Oppression by approvement of common. Oppression by surcharge of common. 3 Oppression by distresses. Powndage money. Distraining out of his fee. Excessive distress. Several distresses for one thing. Distress for damage pheasant. 4 Oppression by trespasses. 5 Oppression by Nuisances. 6 Oppression by Rescous. 7 Oppression by encroachments. 8 Oppression by excessive amerciaments. 9 Oppression by committing of waist. Wast in land. Wast in houses. Wast in gardens. Wast in men. 10 Oppressions redressed by an Audita querela. 11 Oppression by forestallers, Engrossers, and Regrators. Who is a Forestaller. Who is an Engrosser. Who is a Regrator. The punishment of Forestallers, etc. In what cases engrossing and regrating be tolerable. Changing of seed. Buying and selling of cattle alive. The authority of I. of peace in these cases. Trasporting allowed by justices. When corn may be transported. Buying and selling of fish near the Sea. Drovers licensed to buy and sell cattle. 12 Oppression by badgers, laders, etc. Observations necessary in all licences. 13 Oppression of Printers and Stationers. Oppression by Printers and Stationers. 14 Oppression by transporting of gold and silver. 15 Oppression by transporting of copper, etc. 16 Oppression by Pewterers. 17 Oppression of inhabitants of Market towns. 18 Oppression by taking of several farms. Taking of farms in the Isle of Wight. 19 Oppression by keeping of many sheep. 20 Oppression by spiritual persons in taking of farms. Oppression by them in buying and selling. Oppression by them in farming of Parsonages. Oppression by them in keeping of Tan-houses, or Brew-houses. 21 Oppression by taking of excessive toll. 22 Oppression ought not to be done to aliens and strangers. 23 Oppression by making of iron works. 24 Oppression by Brewers. 25 Oppression by bringing into the Realm woollen cards. 26 Oppression by erecting of Wears. Oppression by destroying of spawn or fry of fish. Oppression by fishing with unlawful nets. 27 Oppression by buying and selling of fuel. 28 Oppression by transporting of victual. 29 Oppression by usury. 30 Oppression by cutting out the head of a conduit. Oppression by burning of a cart laden. Oppression by cutting out the tongue of a beast. Oppression by cutting off the ears of a man. Oppression by barking of trees. 31 Oppression by hawking or hunting in corn growing. 32 Oppression by taking of other men's fish. 33 Oppression by decaying of towns and houses of husbandry. 34 Oppression by decaying of tillage. 35 Oppressions, and all the former offences, punishable in the Star chamber. Treasons. Fol. 109. 1 What is Treason. 2 A repeal of former Treasons. Offences made Treason by Stat. 3 Compassing or imagining the death of the King, etc. A conspiracy by divers, executed by some of them. 4 Levying of war, or adhering to the kings enemies. 5 Counterfeiting the K. seal. Conspyrators and aiders in Treason. 6 Counterfeiting the King's money. Coiners of money by warrant, do abuse it. 7 Petit Treason. A servant killeth his master or mistress. The wife conspireth to kill her husband. 8 The son killeth father or mother. 9 Treason in breaking of prison. An indictor discovereth counsel. 10 Treason by statute. Treason by forging the coin of other realms. Treason by forging the King's sign manuel. 11 Bringing into the realm money counterfeit. 12 Treason by clipping, washing, or filing of money. 13 Treason by diminishing, scaling, or lightning of money. 14 Treason by the maintaining the authority of the Bishop of Rome. 15 The oath touching the Q. supreme government. Praemunire for the first refusal of the oath. Treason for the second refusal of the oath. 16 Treason for giving or taking absolution from Rome. Treason to obtain Bulls from Rome. 17 Treason to persuade to the Romish religion. Treason to be persuaded to the Romish religion. Practising to absolve, or reconcile. 18 Treason for jesuits or Priests to come into the Realm. 19 Treason in Seminary priests not returning. 20 What Misprision of Treason is. The forfeiture in Misprision. 21 Misprision to counterfeit money not currant. 22 Misprision to aid persuaders to the Romish religion. 23 Misprision to conceal reconciliation offered. 24 Misprision to enroll an indictment not found. 25 Misprision in drawing of a sword to strike a judge sitting in his place. 26 Misprision in striking of a juror in a judges presence. 27 Misprision by striking a man in Westminster Hall, the Court sitting. 28 Misprision by rescuing of a prisoner arrested by a judge. 29 Shedding of blood within the K. house. 30 Trial of Treasons committed out of the Realm. 31 outlawry of offenders in Treason being out of the realm. 32 Trial of Treasons committed in Wales. 33 The force of attainder of Treason by the common law. 34 No record of Attainder shall be reversed, where the offendor is executed. 35 Felony made Treason by statute. 36 An English traitor subject to a foreign prince. 37 An Alien borne committeth Treason. 38 A subject joineth the kings Arms to his own. Homicide. Fol. 120. 1 Homicide by justice. By necessity. By chance or misfortune. By will. 2 Homicide by justice. The order of law not observed in the execution of justice. 3 None may kill a man that is outlawed, or attainted in Praemunire. 4 Killing of a fellow that will not be arrested. Every person may arrest a fellow. Killing of such as be unlawfully assembled. 5 Killing of him that is in carrying to the jail. 6 Killing of a prisoner attempting to escape. 7 Killing him that attempteth robbery or burglary. 8 Killing of an offendor in a Park etc. 9 Unity of possession in a chase or manor. 10 One kill of another in combat. 11 Homicide upon necessity in defence of his house from burning. Homicide in defending himself from robbery. 12 No forfeiture for Homicide upon necessity. 13 Killing of another in his own defence, in his own house. 14 Necessity inevitable requisite in homicide in his own defence The definition of Homicide in his own defence. 15 Where in Homicide in his own defence his goods shall be forfeited, and where not. 16 Killing a man in his own defence, found by verdict. 17 The prisoner indicted for killing in his own defence, must plead, not guilty. 18 How he shall be discharged that killeth a man in his own defence. 19 What is Homicide by misadventure. 20 The like order in misadventure, as in his own defence. 21 What is Homicide by murder. What is Homicide by manslaughter. 22 The name of murder. Murder more grievous than felony. 23 Wilful poisoning is murder. 24 Stabbing to death is murder. 25 Murder by killing of a Constable coming to part a fray. Murder by killing of a Sheriff or his Officers in serving of Process. Murder by killing of a watchman. 26 Murder and Manslaughter committed in the death of one man. 27 A man bearing malice to one, killeth another. 28 A man giveth poison to one, another taketh it, and dieth. 29 Two agreeing to commit a Murder, one of them doth it. 30 Meaning to kill, without the act, is not Homicide. Act in killing without meaning, is Homicide. 31 Homicide by giving poisoned drink to another. 32 Many do attempt to do an unlawful act, and one of them doth kill a man. 33 Homicide by carrying a sick man into the air or cold. 34 A man dieth under the Physicians or Chirurgeons care. 35 Homicide upon the evil words of another. 36 Homicide by a Frantic man. Homicide by a man that is deaf and dumb. Homicide by a drunkard. 37 Homicide by an infant. 38 Homicide by a beast. 39 In Homicide the party killed must be in Esse. 40 In Homicide the party hurt must die within the year. 41 Homicide by felo de se. The cause of the forfeiture of felo de se. 42 An infant or lunatic cannot be felo de se. 43 Killing of himself in stead of another. 44 Forfeiture of a lease made to felo de se and his wife. 45 No forfeiture of a debt upon contract made by felo de se. 46 A villain is felo de se, and his Lord seizeth his goods. 47 One mortgageth his goods and becometh felo de se. 48 Homicide by casualty. 49 A Deodand, and what it is. 50 A tree, and the bough of another tree doth kill a man. 51 Falling off a cart, or from a cart. 52 Falling from a cart laden. Falling from a cart that is lading. 53 Falling from a horse into the water. A horse or other beast killeth a man. From what time a Deodand shall have relation. 54 A beam of a bell in a church killeth a man. 55 A wheel of a Mill killeth a man. 56 Falling from a horse against a Trunk. 57 Falling from a hovel or rick. 58 Falling out of a ship that is sailing. 59 No Deodand for him that is within fourteen years of age. 60 The Sheriff shallbe charged with a Deodand. 61 A man unknown found dead in the field. Felony by the Common Law. Fol. 129. 1 What is Larceny. Petit Larcenie The intent of stealing must be at the time of the receipt of the goods. 2 Stealing goods at several times of the value of xii. d '. Felony in several persons. 3 The jury may find an under value of the goods stolen. 4 Felony where the goods be in the owner's possession. 5 A servant having use of his Master's goods, doth steal them. 6 One having the key, doth steal the goods in the house, or chest. 7 A bargain with a Carrier, but not a delivery of the goods. 8 A Carrier stealeth the goods committed unto him. 9 A Carrier stealeth part of his charge. 10 Felony in a man for taking of his own goods. 11 Stealing of the goods of a Church, or Corporation. 12 In what case a married wife may commit felony, in what not. A woman taking her husband's goods. 13 In what case an infant may commit felony. An idiot or lunatic cannot commit felony. 14 Burning of a house or barn, felony. 15 Felony in indictors to discover their counsel. 16 Rescuing of a prisoner felony. 17 Wilful escape is felony. 18 Goods stolen from him that hath the custody of them. 19 Goods stolen from him that did steal them. 20 Of what things larceny may be committed, of what not. 21 Felony must be of personal goods, and of things real. 22 A thing made felony by Statute, which is after repealed. 23 What Theefeboot it. 24 Felony committed in one K. reign, punished in another. 25 Stolen goods carried into several counties. In what jail a fellow shall be imprisoned. 26 Breaking a house to take a fellow. 27 What is robbery. Robbery by threatening. Taking a man's money, but not putting him in fear. 28 Robbery by taking an oath to bring money. Robbery by taking of money given. 29 Robbery in will, but not in deed. 30 What is Burglary. 31 Breaking of a house, but not entering. 32 No Burglary may be committed in the day time. 33 Breaking of a dwelling house wherein no person is. Felony by Statute. Fol. 133. 1 Felony in conspiring to destroy the King, or any Lord, or Counsellor. 2 Felony to ravish a woman. 3 Felony to abuse a woman child under the age of ten years. 4 Felony in the ravisher, where the woman ravished doth consent. A woman ravished, conceived with child. The woman ravished, a concubine. The woman not carnally known. Rapuit necessary in an Indictment of Rape. 5 Felony by taking a woman against her will. 6 Felony for transporting of sheep. 7 Felony in marrying again, until the former husband or wife be dead. 8 Felony in some such as be infected with the plague, for their abuses. 9 In what case a fantastical Recusant must abjure, upon pain of felony. 10 In what cases a Popish Recusant must abjure, upon pain of felony. 11 The vice of buggery is felony. 12 Felony in servants that imbecile their master's goods. Receiving money for wares. Receiving money upon on obligation. 13 Felony in servants imbeciling their master's goods after their deaths. 14 Felony by enforcing a prisoner to become an approver. 15 Felony in those that counterfeit to be Egyptians. 16 Felony by imbeciling of records. The penalty of judges or Officers abusing records. 17 Felony in cutting out of tongues, or putting out of eyes. 18 Felony in practising of multiplication of gold or silver. 19 Felony in withholding of a hawk. 20 Felony in making of congregations of Masons. 21 Felony for a soldier, mariner, or gunner to departed from his captain. 22 Felony by receiving or relieving of jesuits or Priests. 23 Felony for making of purveyance without warrant. 24 Felony by unlawful purveyance of sheep. 25 Felony by making purveyance without appraisement. 26 Felony by taking carriage contrary to his commission. 27 In what case forging of evidence is felony. 28 In what case a banished rogue shallbe a fellow. 29 Felony by practising of conjuration, witchcraft, invocation, etc. 30 Felony in hunting in the night, or with visors, and denying of it. 31 Felony by unlawful assemblies above twelve persons, etc. 32 Felony in wandering souldidiers or mariners, that will not settle to work. 33 Felony in imbeciling of the King's Armour, Ordnance, Shot, etc. 34 Felony in cutting down Powdike. 35 Felony in not taking the oath for the King, or not entering into bond. 36 Felony in forcible carrying any person out of Cumberland, etc. 37 Felony in breaking of prison. Principal and Accessory. Fol. 141. 1 There is no Accessory in high Treason. 2 Accessary before the offence committed. 3 Procurement of felony. 4 Coming purposely to do Manslaughter. 5 A will to assist a fellow. 6 In company, but not assenting to a felony. 7 Holding a man until he be slain. 8 One thing commanded, and another effected. 9 counseling to rob one, and another is rob. Commanding to beat one, and another is killed. Commanding to burn one house, and another is burned. Counsel to do one act, and another is done. The felony commanded, committed in another manner. 10 The felony commanded, countermanded. 11 counseling to poison one and another is poisoned. 12 A commanding or aiding to rape or robbery. 13 Accessories after the offence. What act of the Accessory maketh him a fellow. 14 Receipt of a fellow attainted in the same county. 15 Receipt of a fellow attainted in another county. 16 Indictment and trial of an Accessory in one county, to an offence done in another. 17 Receiving of stolen goods. 18 Receiving of a fellow. 19 Accessary to an Accessory. 20 Rescue of a fellow. 21 A wife not accessary to her husband. 22 A wife may be a principal fellow. 22 Accessaries to offences made Felony by Statute. 23 In Rape the assistant principal. 24 Procurors and abettors in imbesilling of records. 25 Accessaries to offenders in rebellious assemblies. 26 Aidors and abettors in conjuration. 27 Procurers to take a woman against her will. 28 In what cases aiders be principals. 29 Acquittal of the principal, acquittal of the accessary. 30 Principal and Accessary in Manslaughter. 31 Two sorts of Attainders, and which they be. The principal shall be attainted before the accessary. 32 Accessary in an appeal commenced by bill or writ. 33 The principal shall be attainted before the Exigent shall be awarded against the accessary. 34 The principal maketh default, and the Accessary appeareth. 35 The Accessary wageth battle. 36 The accessary pleadeth in abatement of the writ. 37 Both the principal and accessary do appear. Where the principals plea shallbe tried before the accessaries answer. 38 The principal pleadeth in abatement of the writ. 39 The principal pleadeth not guilty. 40 Several principals and one accessary. 41 The attainder of the principal must be in the same suit. 42 The principal attainted, and dieth. 43 The principal doth stand mute. 44 Error in the attainder of the principal. 45 An abjured accessary returneth. 46 The accessary tried upon his own request. 47 The principal found not guilty. 48 The principal dieth in prison before attainder. 49 The principal attainted of another felony. 50 The principal slew the dead man in his own defence. 51 The principal hath his clergy or pardon. 52 In an appeal the acquittal of the principal is no acquittal of the accessary. Breaking of Prison, and Rescous. Fol. 148. 1 Who is a prisoner. 2 A stranger breaketh prison. 3 Letting a prisoner escape. 4 Negligent escape. 5 Rescuing of a prisoner. 6 Disturbing of an arrest. 7 The Sheriff returneth a Rescous. 8 Whose the prison broken must be. 9 Escaping or rescuing of one attached of Trespass. 10 Rescuing of an offendor after judgement. 11 The imprisonment, and not the attainder respected in escape. 12 Letting escape one imprisoned for Treason. 13 Disobeying of a warrant to arrest Hunters. 14 Confession before a Coroner of breaking of prison. 15 Opening the prison, but not escaping. Escape. Fol. 149. 1 Voluntary escape, and what it is. 2 Escape of an offendor not arrested. 3 It must be felony at the time of the escape. 4 Negligent escape, and what it is. 5 Killing of him that escapeth. 6 Taking again the party escaping. 7 licensing the prisoner to go to another town. 8 licensing the prisoner to go into the same town. 9 Escape by bailing one not mainpernable. 10 Escape of one arrested of petite Larcenie. 11 Escape by the return of Cepi Corpus. 12 What is a double escape. 13 Where an escape may be without an arrest. 14 Who shall be charged with an escape. 15 Escape in a Town walled. 16 Flying to a Church, and escaping. 17 Escaping by making of abjuration. 18 Escaping before or after arrest. 19 Where the Sheriff and where the Town shall be charged with an escape. 20 Where the Hundred shallbe charged with an escape. 21 Escape of one imprisoned for a time. 22 Where the Town, Hundred, or County shall be charged with an escape. 23 Who shall be charged with a prisoner, if the Gaoler will not receive him. 24 Who is prisoner by matter of Record. 25 Where a Town shall be charged with an escape. 26 Where a Sheriff shall be charged with an escape. 27 A Coroner sent to the Marshalsea, to inquire of Escapes. 28 Confessing and avoiding of an escape. 29 Who is a prisoner by matter in fait. Before whom an escape shall be presented. 30 justices of Peace and the Coronor shall inquire of Escapes. 31 Traverse to a presentment of an escape. 32 Escapes inquirable in Leets and Turns. 33 The penalties of Escapes. 34 Where a man arrested may be set at liberty, without further trial, and where not. Pursuit by Hue and Cry. Fol. 152. 1 All men shall pursue the hue and cry. The punishment of concealment, and not attaching of Felons. 2 Fresh suit and inquiry shallbe made after Felons. The penalty if a Felon be not taken. 3 Warding of towns that be walled. 4 When the night watch shall be given and end. The penalty of resisting of arrest. 5 How highways shall be enlarged. 6 The Hundred charged where Fresh suit upon hue and cry shall cease. The clerk of the Peace shall prosecute the suit. 7 Who shall prosecute the suit if the clerk of the Peace do die, or be removed. 8 A remedy for equal contribution. 9 Delivering of the contribute money. 10 Levying of contribution. 11 No penalty where any of the offenders be taken. 12 Within what time the suit shallbe commenced. 13 In what manner hue and cry shallbe made. 14 Notice must be given of the robbery. The party rob examined and bound to prosecute the offenders. 15 A remedy for the inhabitants of Benherst in Berkshire. In what cases only their recovery shallbe had. 16 Pursuit will not serve without apprehension, or descrying the Felons. 17 Arresting of him that is pursued by hue and cry. Appeals of Felony. Fol. 156. 1 What an appeal is. Appeal by a woman of the death of her husband. 2 An appellant conveyeth his title by a woman. 3 The declaration in an appeal of Murder. 4 The woman appellant must be the dead man's lawful wife. 5 The woman must live unmarried. 6 The woman marrieth between judgement and execution. 7 Where an appeal for a woman, but no dower. 8 Where the wife may have an appeal, none other shall. 9 Who shall have the Appeal, if the man slain have no wife. A bastard. Heir in borough English. 10 An Appeal dieth with the Appellant, or by his Non-sute. 11 The heir doth release the appeal, and die. 12 The heir doth recover and die before the appellees execution. 13 The eldest son disableth himself to bring an appeal. 14 Who shall have the appeal for killing of father, mother, brother, or wife. 15 A Lord killeth his villain. 16 An infant may have an appeal. 17 A man of threescore and ten years of age may have an appeal. 18 Disabilities to bring an appeal. 19 Disabilities in the appellant. 20 Pleading that the appellant hath an elder brother. 21 Attorney for the appellant in appeal. 22 Who may pursue an Appeal of Robbery. Robbing of a Carrier. 23 The appeal of a woman, of an infant, of executors. 24 A villain shall not have an appeal of Robbery against his Lord. 25 An Appeal, or an Indictment for the king's goods. 26 An Appeal of Robbery done to another. 27 An Appeal of Rape. 28 Who shall have the appeal where a woman ravished consenteth. 29 A lawful husband shall have the Appeal of Rape. 30 Where the father or kinsman shall have an Appeal of Rape. 31 An Appeal where the Lord doth ravish his Niefe. 32 Pledges in Appeal of Rape. 33 Within what time an Appeal shallbe commenced. 34 From what time the year shall have relation. 35 The year shall have relation from the offence done. 36 Within what time an appeal of Rape shallbe commenced. 37 In what County Appeal shallbe brought. 38 In what county an Appeal of Rape shallbe brought. 39 In what county an Appeal of Robbery shallbe brought. 40 Threatening in one county to bring money into another. 41 Goods rob carried into divers Counties. 42 Before whom an Appeal shallbe brought. 43 Removing an Appeal out of the County. 44 An Appeal before the justices of jail delivery. 45 An Appeal before the justices of the Kings Bench. 46 An Appeal against one bailed. No Appeal against him that is let by mainprize. 47 Appeal before justices of Peace. 48 Appeal before the Constable and Martial. No Appeal in Parliament. 49 divers Appeals for one felony. 50 One only Appeal for one Felony. 51 Where divers Appellees for one Felony. 52 Two Appeals founded upon one Felony. 53 Robbery of several parcels of goods. 54 Where one shall answer to divers Appeals or Indictments. 55 Answer to divers Indictments as well as to Appeals. 56 He that hath his clergy shall answer to an Appeal of former offences. 57 A Clerk shall answer to a former Appeal or Indictment of former offences. 58 Process in Appeal before the Coroner. 59 Process upon an Appeal or Indictment. 60 Process against indictors in another County. 61 Process against Appellees and Indictees in foreign Counties. 62 Process upon an Appeal removed into the Kings Bench. 63 The party appealed must be supposed to be of a foreign county. 64 An appellee dwelling in no place certain. 65 Process into a County Palantine. 66 Process against Principal and Accessary. 67 The Statute of West. 1. extendeth only to Appeals commenced by Bill. 68 In Appeal one appeareth, and others make default. 69 Process to remove an Appeal. 70 A Certiorari into the county. 71 Process against the plaintiff after an appeal removed. 72 Process against the defendant after an appeal removed. 73 Process against one that by the Sheriffs return escaped. 74 Process with a proviso for the appellee. 75 Process to remove prisoners or records. 76 How the appellee shall be led to the bar. 77 Count in an Appeal. An Appeal of Murder. The year, day, hour, time of the king, and the town material. 78 The place where the fact was done. 79 Count in an Appeal of death against three as principals. The fact must be declared. 80 Count in an Appeal of Robbery. 81 Where in an appeal of Rape the Statute must be rehearsed in the Count, and where not. 82 Defence in an Appeal. 83 Pleas to the Writ in Appeal. 84 The form of the Writ in an Appeal of Rape. This word Rapuit material. 85 Not two Appeals for one offence. 86 Pleading of one in an Appeal brought against two. 87 The plaintiff in an Appeal misnamed. 88 Two or three pleas to the Writ. 89 Bars in Appeal. Bar in Appeal of death brought by the wife. 90 Bar in Appeal of death brought by the heir. 91 Bar in Appeal of Rape or Robbery. 92 General pleas in bar in Appeal. 93 Bar for that the plaintiff brought another Appeal. 94 Bar by the plaintiffs release. 95 Pleading not guilty after other pleas. 96 Where the king may prosecute an Appeal begun. 97 No Appeal of Treason. Indictments. Fol. 169. 1 Commissions to Sheriffs to take Indictments. 2 When the Sheriff shall hold his Turn. An Indictment found in an unlawful time. 3 Sheriffs shall inquire by xii. men at the least. 4 Indictment before the Sheriff shall be by Roll indented. 5 Of what sufficiency jurors returned in the Sheriffs Turn shall be. 6 Indictments taken in the Sheriffs Turn shallbe delivered to the justices of Peace. 7 jurors in Indictments shallbe returned without the denomination of any. 8 Panels for Indictments may be reform by the justices. 9 An inquest to inquire of the concealment of other Inquests. 10 In what case indictment and trial shall be where the King will. 11 Indictments and Trials of Treason committed out of the Realm. 12 Indictment in the county of Lancaster of a foreigner. 13 Indictment of a Lancashire man in a foreign County. 14 Indictment for the striking or poisoning of a man in one county, who dieth in another. Indictment of an accessary to an offence committed in another County. 15 Indictments lacking these words: Insidiatores viarum, & depopulatores agrorum. 16 Words not necessary in Indictments. 17 No more shall be in an Indictment than is true. Felonicè or Piraticè in an Indictment. 18 Where a verdict in an action of Trespass shall be an Indictment of Felony. 19 The Sheriffs return is no Indictment. 20 The year, day, and place necessary in an Indictment. 21 An Indictment must be certain in the matter. 22 An Indictment must be certain in the persons received. 23 An Indictment uncertain at what Court. 24 Indictment for making of money. 25 Indictment of a common thief. Indictment of the Ordinary. 26 The foresaid A. in an Indictment, where none is before named. 27 Indictment for the kill of a man unknown. Indictment for the stealing of the goods of a man unknown. 28 Indictment for the stealing of the goods of a Church, or Chapel. 29 An Indictment depending upon an argument, or implication. 30 In an Indictment furatus est without felonicè, or in Rape carnaliter cognovit, without rapuit. 31 An Indictment before justices of Peace. 32 An Indictment before the Mayor of London upon sight of the body. 33 Indictment of the receipt of a Felon as accessary. 34 Indictment of the receipt of the goods stolen, and of the Felon. 35 Indictments void for one purpose will serve for another. 36 A prisoner discharged, and after retained in prison. 37 The difference between an Appeal and Indictment. 38 Pleading another time acquit of the same Felony. 39 Indictment of the death of a man known by two surnames. 40 Indicted of the same man's death. 41 Indicted in two counties of one offence. 42 Arraigned upon an insufficient Indictment or Appeal. 43 Acquit upon an erroneous Appeal. 44 Acquit upon an Appeal brought by one that hath no right. 45 Arraigned upon an Indictment, before the parties Appeal be determined. 46 Acquit by battle in an Appeal. 47 A Murderer indicted and arraigned at the King's suit. Another time acquit no plea in an Appeal, but in an Indictment. 48 No Indictment of Robbery, until the Appeal be tried. 49 Pleading another time convict of the same Felony. 50 Another time attainted of the same Felony. 51 The Kings Pardon objected against the plea of another time attainted. 52 Who is said attainted, and who convict of Felony. Mainprize and Bail. Fol. 180. 1 In what cases a prisoner is mainpernable, in what not. 2 The principal in Appeal of death not mainpernable. 3 Where the principal let to mainprize. 4 Pleading excommunication in the plaintiff. 5 Who are mainpernable, who not. Bailement by the Sheriff. withholding of Prisoners mainpernable. 6 In what cases no mainprize by the common Law. The King or justices commandment. 7 The Marshal shall bail no prisoner. The justices ordinary, or absolute commandment. 8 Mainprize for offenders in Vert or Venison. 9 In what case he that is outlawed may be bailed. 10 Mainprize during an approvers life. 11 Maineprise upon good name. The principal in Burglary and Robbery mainpernable. 12 No bailment for a prisoner attainted. 13 Bailement of offenders by justices of Peace. 14 Bailement of offenders by the Sheriff. 15 Bailement by Sheriffs and others. 16 Imprisonment at the King's pleasure. 17 The difference between bailment in Felony, and in a personal Action. 18 Mainprize is matter of Record. Confession of the offence. Fol. 184. 1 An offendor in felony pleadeth one of three pleas. 2 Confession of the offence before the judge upon the prisoners arraignment may be in two sorts. Confession of the offence must be free and without menace. 3 He that doth confess his offence before the judge, doth become an approver. 4 Confession of the offence before the Coroner, whereupon abjuration doth ensue. Approver. Fol. 185. 1 Who is an Approver. An Approver shallbe banished. 2 Of what offences approvement may be. 3 Approvement in an Indictment, and not in an appeal. 4 Before whom one may approve. 5 How an Approver shall use himself. No approving after pleading. An Approver must tell truth. 6 An Approvers oath. 7 An Approvers wages. 8 An Approver set at liberty. An Approvers appeal must be certain. 9 Process against the appellees after the approvement. 10 Pleas for the appellee against the approver. An Approver attainted or convict of Felony. 11 An appellee cannot appeal others. 12 An Approver not in prison for felony, or at liberty. 13 The appellee an honest and credible man. 14 General pleas in bar of the appeal. 15 Where the king may pursue an Appeal begun. 16 The appellants release to the appellee. 17 An Approver confesseth his Appeal to be false. 18 An Appeal abating before declaration. A Felon taken with the manor. 19 No arraignment at the king's suit upon a false declaration. Where, if not an appeal, yet an Indictment may be at the king's suit. 20 The plaintiff in the appeal excommunicate or outlawed. 21 An Approver pardoned, the appellee shallbe discharged. 22 Vanquishing of one of the approvers. 23 Examining of an offendor condemned. Sanctuary and Abjuration. Fol. 189. 1 What Sanctuary is. 2 What Abjuration is. 3 All Sanctuaries be extinguished. Abjuration by the common Law. Abjuration to a place within the Realm. 4 No abjuration for Treason. 5 No abjuration for the robbery of a Church. 6 No abjuration for a man attainted. 7 No abjuration for a man before abjured. 8 Where an offendor may be drawn out of the Church by violence. The offenders confession before the Coroner. 9 Tarrying in a Church above the time limited. 10 The manner of Abjuration. The oath of Abjuration. 11 The attire of an abjured person. 12 The using of persons abjured. 13 The abjuration broken, death ensueth. A Clarke need not to abjure. 14 Where no Felony, no abjuration for Felony. 15 The abjured pleadeth that he is not the same person. The King's pardon of Abjuration. 16 Abjuration by a Recusant. 17 Abjuration by a Popish Recusant. 18 Abjuration by him that committeth Trespass. Pleading not guilty. Fol. 192. 1 The plea of not guilty the most common for a prisoner. One may plead not guilty after other pleas. 2 Where, upon the plea of not guilty counsel shallbe allowed, and where not. Trial by Battle. Fol. 193. 1 Trial of not guilty by Battle, or by the Country. 2 The form of trial by Battle. 3 The reason why the defendant in an appeal may be tried by battle. 4 Counterpleas to the Battle. 5 Taken with the manor. 6 Breaking of prison. 7 Let's of trial by battle on the plaintiffs part. 8 Privileges of the appellants person. The King. A Citizen of London. 9 No wager of battle in an appeal of Rape. 10 One fight with several men. 11 An Appeal by an approver. 12 The appellee wageth battle, and then becometh blind. Trial by Peers. Fol. 196. 1 The trial of the plea of not guilty by Peers. 2 The form of arraignment and trial of a Peer of this realm. 3 By whom Peers appealed shallbe tried. By whom Ladies shall be tried. 4 The trial of Bishops. Arraignment and Trial in Parliament. 5 Trial of Treason committed in Ireland. 6 Trial of Misprision of Treason. The number of Peers at the trial. 7 Trial of Peers by Peers in all cases of Treason and Felony. Trial by the Country. Fol. 198. 1 Trial of the plea of not guilty by the country. 2 Trial by the country of foreign pleas. A man stricken upon the Sea, dieth upon the land. 3 The Process against the jury. The Process in an Appeal, and not in an Indictment. 4 Where a Nisi prius is grauntable in an Appeal. 5 Remaunding of prisoners out of the King's Bench into the Country. 6 Trial of Felonies committed by English men in Scotland. 7 The prosecutors and witnesses bound to give evidence. 8 The accessary tried, though the principal be not. 9 Every juror must have five pounds of freehold. 10 The offendor shall forfeit no lands. 11 A like Act made in Scotland. 12 Scottishmen repairing into England to give evidence, shall be free from arresting. 13 The offence shall be laid where it is done. 14 He that is once tried, shall not be eftsoons called into question. 15 None shall be sent out of England to receive his trial. 16 The jurors shall allow of, or reject the witnesses. Challenge. Fol. 201. 1 Where the prisoner is allowed to challenge peremptorily. Severance in challenges. 2 Which be challenges upon cause, for that he was an indictor. 3 Challenge for want of Medietatem linguae. 4 Challenge for want of sufficient freehold. 5 Challenge for the king. 6 A man outlawed of Felony shall have his challenge. 7 A juror challenged, for that he is an Alien, a Villain, or Outlaw. Evidence. Fol. 204. 1 Some bound to give evidence against an offendor let to bail. 2 Some bound to give evidence against an offendor imprisoned. 3 Restitution of goods upon an attainder by evidence. 4 Evidence given by a stranger. 5 There must be two accusers to give evidence in Treason. 6 Evidence or accusers in high Treason. 7 Evidence against abettors to offences. 8 Evidence on the defendants part in Felony. Verdict. Fol. 206. 1 A Verdict at large may be given in Felony. 2 The Verdict sometime less penal than the Indictment. 3 The Verdict sometime more penal than the Indictment. 4 Where the jury shall find who killed the dead man. Clergy. Fol. 207. 1 What Clergy is. 2 Who shall not have his clergy by the common Law. 3 A committer of Sacrilege. 4 The habit or tonsure of a Clerk. 5 Clergy shallbe allowed but once. 6 Killing a man by chance, or in his own defence. Committing of petite Larcenie. 7 Offenders in Treason. 8 Confession of the Felony. 9 Clergy taken away by Statute. A Cutpurse. 10 Forging of Writings. 11 A committer of Buggery. 12 Counterfeiting to be Egyptians. 13 Relieving of a jesuit or a Priest. 14 Committers of Rape or Burglary. 15 Taking a woman against her will. 16 Practising of Conjuration or Witchcraft. 17 Stabbing, or thrusting to death. 18 A Recusant not abjuring or returning. 19 Abjuration of a Popish Recusant. 20 A Soldier departing from his Captain. 21 Wandering Soldiers and Mariners. 22 Taking away any person in Cumberland. 23 Committing of Murder, Poison, Burglary. 24 Stealing of a Horse. 25 Stealing of goods in one County, and carrying them into another. 26 Robbing of houses, booths, tents. 27 Robbing of a house in the day. 28 Commandment or counsel of Felony. 29 A Lord of the parliament shall have the benefit of his Clergy. 30 The Indictment must be according to the Statute. The words of the Indictment must be proved. 31 When Clergy shall be demanded. Clergy demanded before verdict. 32 Denying to be a Clerk, and yet is. Whether Clergy be allowable without request. 33 Who shall allow of Clergy. 34 A Felon readeth under the Gallows. 35 To what use the Ordinary is employed. Clerks within orders shall be used as others be. 36 What is reading as a Clerk. 37 The Ordinaries attendance requisite. Contention who is Ordinary. 38 A Priest shall have no fetters. 39 Bigamus shall have his Clergy. 40 Another time convict. How the convict shall be marked. How offenders within orders shallbe used. 41 Certificate into the K. Bench of Outlawries, Attainders, and Convictions. 42 A Clerk delivered to the Ordinary. Clergy allowed without delivery to the Ordinary. The King's Pardon. Fol. 218. 1 The King's oath at his Coronation touching pardons. 2 None but the King can pardon Felonies. 3 In what cases the King may grant pardon. 4 Non obstante in a pardon. The Suggestion shall be comprised in the pardon. 5 The offences shall be specified in the pardon. 6 Suit for an approvers pardon. 7 Pardon of the Felony, but not of the attainder. 8 Pardon of the attainder, but not of the Felony. 9 A joint pardon to two or three. 10 A grant to be quit of escapes of Felony. 11 A general pardon by Parliament. 12 The King's pardon must be showed under Seal. A writ of the allowance of the King's pardon. 13 He that hath a Pardon shall find sureties of his good abearing. 14 The good behaviour broken after pardon. 15 A Charter of Pardon must agree with the indictment. 16 The pardon and allowance entered upon the appeal. 17 The Kings pardon in plea in appeal. 18 Upon a Pardon a Scire facias awarded against an Appellant. 19 Nonsute doth not aid an appellee that is outlawed. 20 The King's Protection. 21 Pardon of a Felony before it be committed. Standing mute, or answering indirectly. Fol. 222. 1 Standing mute, whereupon pain fort & dure doth ensue. 2 Felons refusing lawful trial. 3 Penance only upon an Indictment. 4 Penance for Piracy. 5 No penance for High Treason. 6 No penance for a man before attainted. 7 Standing mute after confession. 8 Inquire of him that standeth mute. 9 The judgement in penance. Judgement and Execution. Fol. 224. 1 judgement where the prisoner is acquitted. 2 The judgement of a man attainted of high Treason. 3 The judgement of a woman attainted of Treason. 4 The judgement of a man attainted of petit Treason. 5 The judgement of a woman attainted of Felony. 6 The judgement in misprision of Treason. 7 Attainder of Treason by the common Law. 8 The judgement of penance, viz. of pain for't & dure. 9 judgement in Felony by justices of Nisi prius. 10 judgement by new justices. 11 judgement in petit Larcenie. 12 The staying of a woman's execution, being with child. 13 A man hanged, falleth down before he be dead. Forfeiture. Fol. 226. 1 A Felon shall forfeit lands and goods. 2 Forfeiture of goods. Flying for the Felony. 3 The Accessary fled for the Felony. 4 Forfeiture for petite Larcenie. 5 Forfeiture for flying before arrest. Forfeiture without Attainder. 6 Forfeiture upon the exigent awarded. 7 No forfeiture to the accessary, until the principal be attainted. 8 Forfeiture notwithstanding appearance and pleading. 9 Forfeiture of a Clerk convict. Of him that committeth Homicide by misadventure. Of him that killeth in his own defence. Of Felo de se. Of him that doth stand mute. 10 Forfeiture of a right or action. No payment of Attainteds' debts. 11 Forfeiting of goods, wherein the offendor hath no property. 12 A Felon attainted at the suit of one, where more were to sue. 13 Forfeiture of other men's goods, and his own. 14 The forfeiture where a woman killeth her husband. 15 An Executor shall not forfeit his Testators goods. 16 The forfeiture of goods holden jointly. 17 Confiscation of goods. Confiscation of his own goods by disclaimer. 18 Confiscation by disclaimer in the goods of others. 19 Confiscation of goods left out of an Appeal. 20 Confiscation of goods by a false Appeal. 21 A Waife, and the seizing thereof. 22 The owner seizeth his goods waived. 23 Seldom waif, but of stolen goods. When waif of goods not stolen. 24 No waif of goods stolen from an alien. 25 Forfeiture of lands. Tenant for years. Tenant for life, or in tail. Tenant in the right of his wife, or Church. 26 Forfeiture of Lands entailed. 27 The forfeiture of lands in fee simple. The forfeiture of an Annuity. 28 The forfeiture of Title to land. 29 The forfeiture of Evidence. 30 Forfeiture without attainder. 31 Forfeiture of the year, day, and waste. 32 By what means the King came by the year, day, and waste. 33 The year, day, and waste of lands, of what title shall be forfeit. 34 No year, day, and waste of lands holden by joint purchase. 35 Whether any Forfeiture shall be made by Tenant in tail. A Disseisor. Tenant in fee farm. A Mortgage. 36 Forfeiture of tenant in ancient demesne. 37 The year, day, and waste forfeited without attainder. 38 No year, day, and waste of a Clerk convict. Lands of small value. 39 When the king shall have the year, day, and waste. 40 The year, day, and wast not grauntable from the Crown. 41 What goods of Felons the king shall have. 42 From what time the forfeiture of lands shall have relation. 43 From what time the forfeiture of goods shall have relation. 44 who shall seize and keep Felons goods, and when. 45 The goods of an offendor shall not be seized until he be attainted. 46 Who shall have the custody of Felons goods. 47 To whom the forfeiture of lands of a person attainted of high Treason shall accrue. 48 Who shall have the forfeiture in petite Treason and Felony. 49 The Lords remedy for lands escheated unto him. 50 The heirs remedy for lands escheated unto his ancestor. 51 Where the Lord shall have a Writ of Escheat, and where he may enter. 52 The form of a Writ of Escheat. 53 The king's remedy for lands escheated unto him. An office for those lands which do escheat for Felony. 54 The wives forfeiture of title of Dower. 55 What the appellee that wageth battle shall forfeit. 56 A Rent-charge pro consilio, not forfeited. 57 The forfeitures of an outlaw. Corruption of Blood. Fol. 239. 1 Corruption of Blood salved by Parliament only. 2 Where corruption of blood shall prejudice tenant by the courtesy. 3 The eldest son attainted during his father's life. 4 Where attainder, but no corruption of blood. Restitution of stolen goods. Fol. 240. 1 Restitution of goods upon Fresh suit. 2 What conviction shall be sufficient to give the owner restitution of his goods. 3 Where the owner shall have restitution. 4 Before whom and by whom inquiry of Fresh suit is to be made. 5 Restitution upon attainder by indictment. Damages in Appeal. Fol. 242. 1 The punishment of the appellant and the abettors, when the appellee is acquit. No essoin for the appellant in an appeal of death. 2 The appeal must be commenced upon malice. 3 The statute of 13. Ed. 1. extendeth to all Felons. 4 The defendant in an appeal acquitted by battle. 5 Where the accessary in an Appeal shall recover damages. 6 Where the defendant is said to acquit himself in due manner, and where not. 7 Acquittal at the King's suit is only in appeal. 8 What justices may inflict the penalty upon the Appellant. 9 The damages for several persons assessed severally. 10 Where the appellant shall pay a fine to the king. 11 In what cases inquiry shall be made for the abettors. 12 What pleas the abettors may plead. 13 Process against the abettors. Nonsute in the process against the abettors. 14 A writ against the abettors by the appellee. 15 Procurers of indictments for suits in spiritual courts. A Writ of Conspiracy. Fol. 245. 1 In what case a Writ of Conspiracy doth lie. 2 Conspiracy maintenable upon an acquittal in an indictment or appeal. 3 The indictment must be false which giveth the Writ of Conspiracy. 4 Conspiracy doubtful whether true or false. 5 The conspirators do become indictors. A justice of Peace. A giver of Evidence. 6 Who be conspirators. 7 A Conspiracy must be by more than one. Where only one shallbe charged in Conspiracy. 8 No Writ of Conspiracy against the Husband and the Wife. 9 The form of the Writ of Conspiracy. 10 The writ of Conspiracy for the accessary. 11 Bars in a writ of Conspiracy. 12 judgement in Conspiracy. A villainous judgement. 13 Inquiry of Conspiracy by justices. 14 Inquiry of Conspirators at the kings or parties suit. 15 Procurers of an indictment or an appeal in a foreign county. 16 An offence supposed to be done in a place where there is none such. The Coroner and his authority and duty in Felonies etc. Fol. 249. 1 The office and duty of a Coroner. 2 The Writ de Coronatore Eligendo. 3 Who shall be Coroners, and by whom they shallbe chosen. 4 Whether Coroners ought to be knights. 5 Causes to remove a Coroner. 6 Where a Coroner shall have fee, and where not. 7 What things Coroners shall inquire of. 8 A Coroner shall execute his Office in his own person. A C●●oner shall see the dead body. A body buried taken up again. 9 A Coroner must presently do his office. 10 A Coroner shall only inquire of the death of a man. A man slain in an arm of the Sea. A Coroner concealing, or not apprehending a Felon. 11 The force of a Coroners Record. Which Coroners Record shall be preferred. abjuring before the Coroner. Confession of breaking of Prison before the Coroner. 12 Who ought to appear upon the Coroners Inquisition. 13 The Coronour, with the Sheriff, may take Appeals. 14 Stopping up of a place of danger by the Coroners commandment. 15 Where the presence of all the Coroners is requisite, and where but some one of them. 16 The Coroner must record the evidence, and bind the party to give it. 17 Inquiry of a man slain within the King's House and Verge. 18 One man Coroner of the kings House, and the County. Who shall be Judge in Treason and Felony. Fol. 253. 1 The King ought not to be judge in Treason or Felony. What men of condition judges ought to be. 2 None shall make judges but the King. 3 judges upon the arraignment of the Peers of the Realm. 4 judges of offences that are done in the King's Palace. 5 judges of Conspiracies made to destroy the King or any Lord etc. 6 judges within the Verge. 7 judges of Treason committed out of the Realm. 8 justices of jail delivery judges in Felony. 9 judges of Nisi prius judges in Felony etc. 10 Special commissioners judges at the arraignment of a Murderer. 11 judges of piracy or offences done upon the sea. 12 justices of Peace judges in Felony. 13 The Lord of a Manor judge in Felony. Infangtheefe. Outfangtheefe. 14 A Felon first executed, and then judged. FINIS.